CHARALAMBOS DROUSHIOTIS (NO. 1) ν. THE CYPRUS ASBESTOS MINES LTD. (1966) 1 CLR 136

(1966)1 CLR 136 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων

(1966)1 CLR 136 1966 January 27 [ZEKIA, P., TRIANTAFYLLIDES, JOSEPHIDES, JJ.] CHARALAMBOS DROUSIOTIS (No. 1), Appellant (Applicant), v. THE CYPRUS ASBESTOS MINES LTD, Respondents. (Civil Appeal No. 4542). Workmen's Compensation Claim for compensation-Proceedings under tile Workmen's Compensation Law, Cap. 188-Applicability of the Limitation of Actions Law, Cap. 15-Application to Court "within the first six months from the occurrence of the accident", under section 14

(1)of tile Workmen's Compensation Law and "reasonable cause" in section 14

(1)(d)-Difference between the English Workmen's Compensation Act and section 2

(1)of the 1906 Act and section 14 of the 1925 Act) and section 14

(1)of the Cyprus workmen's Compensation Law, Cap. 188-Section 14

(1)(b) of that Law and the Limitation of Actions Law. Cap. 15, sections 2.5 and 10 (d)-The Limitation of. Actions Law, Cap. 15 does not apply to proceedings under the Workmen's Compensation Law, Cap. 188. Limitation of Actions-Workmen's compensation-Limitation of Actions Law, Cap. 15, sections 2, 5 and 10 (d)-See under "Workmen's Compensation" above. Section 14

(1)(b.) of the Workmen's Compensation Law, Cap.188 reads as follows: "14.

(1)Proceedings for the recovery under this Law of compensation for an injury shall not be maintainable unless notice of the accident has been given by or on behalf of the workman as Soon as practicable after the happening thereof and before the workman has voluntarily left the employment in which he was in lured and unless the application for compensation with respect to such accident has been made within sir months from the occurrence of the accident causing the injury or, in the case of death within six months from the time of death: Provided that-(a). "(

1. b)the failure to make all application within the period above specified shall not be a bar to the maintenance of such proceedings If it is found that the failure was occasioned by mistake or other reasonable cause". Sections 2, 5 and 10 (
2. d)oft he Limitation of Actions Law, Cap. 15 read as follows: "2. In this Law- 'action' means civil proceedings before an Court and includes arbitration proceedings: 'period of limitation' means the several periods of limitation as prescribed by this Law". "5. No action shall he brought upon, for, or in respect of any cause of action not expressly provided for in this Law or expressly exempted from the operation of this Law after the expiration of six years from the date when such cause of action accrued". 10. Nothing in this Law shall- (a). (b). (c). (
3. d)affect any provision in any other Law relating to the limitation of any action under such Law". The appellant in tile instant appeal sustained injuries in 1946 in an accident in the course of his employment with the respondent Company when he was put on sick leave for 4 days and was instructed to do light work. Thereafter he remained in tile service of the respondent Company and was discharged on the 15.11.1958 and paid his gratuity. For the next three years after the accident he used to visit the doctor periodically because he was feeling pain but, nevertheless he continued to work without break receiving the same wages. Between the accident and his discharge he was admitted to hospital for treatment on other occasions too. In June, 1961 he filed an application tinder the Work men's Compensation Law, Cap. 188 claiming £800 the maxim m provided tinder the Law, for the total incapacity alleged to have been suffered by him in view of the accident. The reasons given by the workman for his failure lure to apply to Court within the first six months after the accident as provided under s. 14

(1)of the Workmen's Compensation Law, (supra) were that he was under treatment and did not know what he had, that he was kept at work and was paid his wages, and that he thought the respondent Company would keep him in their employment. The trial Court found that the workman's failure to apply within the statutory period of 6 months was not occasioned by a "reasonable cause" which is one of the exempt ions provided in sect ion 14 (supra) and further irrespective of this finding the application should in any case, fail on the ground that the proceedings were statute barred as even if the workman had proved reasonable cause "for not applying within six months section 5 of the Limitation of Actions Law, Cap. 15, would he applicable. The Appeal was taken on two grounds namely.

1. "The Court was wrong in law in holding that the proceedings and or the claim of appellant was, in any case, statute-barred and or in holding that, in any case, s. 5 of the Limitation of Actions Law, Cap. 15, may he applicable".
2. "The Court was wrong in law and or in fact in holding hat there was not sufficient 'reasonable cause', within the meaning of the law, during the first six months after the accident, an appellant not to file an application for compensation within that period". The Court of Appeal first heard argument on and decided the first ground of appeal. Held,

(1)section 14 of (he Workmen's Compensation Law Cap. 188 imposes a period of Limitation for taking proceedings in Court and not for making an informal claim to the employer which would be a condition precedent to the taking of proceedings for enforcing a claim. In the case of the Cyprus Statute it is clear than an application for the determination of compensation comes within the definition of an "action" in section 2 of our Law, Cap. 15.

(2)Considering now the wording of our Limitation of Actions Law, Cap. 15, sections 5 and 10, as well as the wording of section 14 of our Workmen's Compensation Law, Cap. 188 we are of the view that the Workmen's Compensation Law, constitutes a self-contained, code and that it was never the intention of the legislature that the Limitation of Actions Law, Cap. 15 should apply to proceedings under it.

(3)For these reasons we are of the view that the trial Court was wrong in holding that the proceedings were statute-barred. Judgment in terms. Cases referred to: Lingley v. Thomas Firth & Sons, Ltd.

(1920)13 B. W.C.C. 367 Stenning v. Southern Railway Co.

(1937)30 B. W.C. 430; Shotts Iron Co. Ltd. v, Fordyce [1930] A.C. 503; 23 B. W. C.C. 73; Leivers v. Barber, Walker Co. Ltd. [1934] 1 All E.R. 386; Powell v. Maui Colliery Co. [1900] A.C. 366, at pp. 371-372: Bishop of Gloucester v., Cunnington [1934] I All E.R.

1. Appeal. Judgment, on the question whether the Limitation of Actions Law, Cap. 15 applies to proceedings under the Workmen's (ompcnsa1ion Law, Cap. 188, given in au appeal against the judgment of the District Court of Limassol (Loizou, P. D. C. & Malachtos, D.J.) dated the 28th August, 1965 (Application No. 10/61) whereby applicant's application for compensation tinder the Workmen's Compensation Law, (supra) was dismissed. Chryssis Demetriades for the appellant. M. M. Hourry, for the respondents. Cur. adv. vult. ZEKIA, P.: The judgment of this Court will be delivered by Mr. Justice Josephides. JOSEPIILDES, J. This appeal raises an interesting point, that is lo say, whether the Limitation of Actions Law, Cap. 15, applies to proceedings tinder the Workmen's Compensation Law, Cap.
2. The workman, who is the appellant in this case, suffered an injury as a result of an accident in the summer of 1949 and he did not institute the present proceedings until June,
3. After the accident he continued in the service of the respondent company until November 1958 when he was discharged from the service of the company. The net result is that the present proceedings were instituted about 12 years after the accident and 2½ years after the workman's discharge. There is a second ground of appeal and a cross-appeal but we shall refer to them at a later stage of this judgment. The following were the facts given in evidence on behalf of the workman before the trial Court. In June or July 1949 while he was employed by the respondent company as labourer he was involved in an accident in the course of his employment as a result of which he was injured. The accident occurred while he was engaged in carrying a heavy object together with three other labourers; one of the three lost his balance and fell and, as a result, part of a waggon, which was very heavy, fell on the workman and hit him on the spine. One of the persons present at the time was the foreman of the respondent company who sent him to the company's hospital where he was attended by the doctor and was given two injections on the back; and he was put on sick leave for 4 days. The doctor instructed him to do light work, he said, and as the foreman knew about it he would not give, him heavy work. For the next three years he used to visit the doctor periodically because he was feeling pain but, nevertheless, he continued to work without a break receiving the same wages. In 1952 he was referred by the respondent company to Dr. Spyros Pavlides, an x-ray specialist, for examination of the lumbar spine. Dr. Pavlides's report, dated the 14th June 1952, was put in evidence by consent and reads as follows (Exhibit 1): "The upper anterior surface of the second lumbar vertebra appears depressed, indicating an old-standing crush injury. "Apart from this there is osteoarthritis of the fourth lumbar vertebra". "The a-p film shows a left convex scoliosis of the lumbar spine". It is the workman's version that after the X-ray examination he went back to hospital and he was given 30 or 35 days' leave, out of which he was detained in hospital for 10 or 15 [141] days. In fact it is admitted by the respondent company that lie was admitted to. the company's hospital on the 11th June, 1952 and discharged on the 21st June, 1952, that is to say, he was in hospital for 10 days, and that the hospital patient's record shows that the diagnosis was "arthritis deformas". Another two medical reports were put in by consent, the one is dated 27th March, 1958 (exhibit 5) and it is signed by the company's chief medical officer. It reads as follows: "The Manager, The Asbestos Mines Ltc., Amiandos. Dear Sir, This is to cerfify that Charalambos Droushiotis, No. 455 is not fit for manual work due to an old deformity of his spine". The second medical report is dated at Amiandos on the 2nd July, 1958 (exhibit 4) and it is signed by Dr. Kirwan. The report reads as follows: "Re Charalambos Droushiotis No.
4. Stands with right side of pelvis higher than left with mild compensating scoliosis-erector spinal in spasm and all movements limited by pain referred to L-S region where there is considerable tenderness. No gross abnormality of S.I. joint obvious but symphysis definitely out of alignment. X-rays show that there has been an upward rotation of left side of pelvis with slip in symphysis pubis and dislocation of S.I. joint-latter injury extends into pedicle and terminal of 5th L.V., the transverse process of which is sacralised. This man has a very definite disability and is unfit for heavy manual labour or work of any kind necessitating lifting and or stooping". On the 15th November 1958, he was discharged from the service of the company and paid his gratuity amounting to £150.920 mils. In the particulars of his application for compensation the workman states that his incapacity for work it total incapacity and he claims £800 compensation, the maximum provided under the law. The reasons given by the workman for his failure to apply to Court within the first six months after the accident as provided under section 14

(1)of the Workmen's Compensation Law, Cap. 188, were that he was under treatment and did not know what he had, that he was kept at work and was paid his wages, and that he thought the respondent company would keep him in their employment. The trial Court found that the workman's failure to apply within the statutory period of six months was not occasioned by a "reasonable cause" which is one of the exemptions provided in section 14, but, at this stage, we are not concerned with that finding. The trial Court further held that, irrespective of their finding on the issue of "reasonable cause", the application should, in any case, fail on the ground that the proceedings were statute barred as, even if the workman had proved reasonable cause" for not applying within six months, section 5 of the Limitation of Actions Law, Cap. 15, would be applicable. That section provides that: "No action shall be brought upon for or in respect of any cause of action not expressly provided for in this Law or expressly exempted from the operation of this Law after the expiration of six years from the date when such cause of action accrued". It was contended on behalf of the workman before us that once the case is brought within the proviso to section 14 of the Workmen's Compensation Law, that is, once it is found that the failure to make an application within the first six months was occasioned by a "reasonable cause", it is open to the workman to make application for compensation at any time thereafter, irrespective of the length of time that may have elapsed, and that the general statutory enactment with regard to limitation of actions did not apply. Appellant's counsel submitted that because of the express provision in section 14 of the Workmen's Compensation Law, limiting the time within which the application should be made the limitation of Actions Law, Cap. 15, did not apply, in view of the provisions of section 10 (d) of that Law which provides that- "Nothing in this Law shall-.............. (d) affect any provision in any other Law relating to the limitation of any action under such Law". In support of this proposition he cited two cases: Lingley v. Thomas Firth & Sons, Ltd.

(1920)13 B.W.C.C. 367; and Stenning v. Southern Railway Co.

(1937)30 B.W.C.C.

1. He also referred to Shotts Iron Co. Ltd. v. Fordyce [1930] AC. 503; 23 B.W.C.C.
2. Learned counsel for the respondent company in submitting that proceedings under the Workmen's Compensation Law were not expressly exempted from the operation of the Limitation of Actions Law, Cap. 15, likewise relied on the Lingley case supra. In the Lingley case the applicant was employed by the respondents as a munition worker. In August 1917, while at her work she was injured by a shell falling on her toe, but she did not make a claim for compensation until February
3. It was held that on the facts of the ease there was no evidence of any reasonable cause for the delay of more than six months in making a claim; and that, once reasonable cause for six months' delay is established, then the question of whether further delay in making a claim is or is not reasonable does not arise. The question whether the statute of limitations applied to the Lingley case was not directly in issue and in fact, it does not seem to have been argued before the Court, but the learned Judges in their judgment referred obiter to the Statute of Limitations. Warrington, L.J. (at page 380 of the Lingley report) said: "Whether in the case of a statutory right to compensation there is any, and what statutory limitation, I am not quite sure, but I assume there would be; I do not express an opinion about it; whatever I say is subject to that, there may be a period of limitation, and beyond that the proceedings would be barred, but that special bar created by this statute is removed if it is shown that the delay to make the claim within the six months was occasioned by any of the circumstances referred to in the Act, namely, absence from the United Kingdom or other reasonable cause". In Stenning v. Southern Railway Co.

(1937)30 B. W.C.C. 430, a signalman sustained a rupture in 1928 while at work. After consulting his own doctor and after having been seen by his employers' doctor he continued at his work as a signalman under the impression that the matter was trivial, but wearing a truss. Six years later he began to realise that the matter was not trivial. In 1936 he was offered work as a crossing keeper, but refused it on grounds unconnected with his injury. His employers then reduced his wages on the ground that he was unable to perform signal-box duty "in consequence of a physical disability". The workman then filed a request for arbitration which was some 8½ years after the original accident. The County Court Judge held that there was reasonable cause for the failure to make a claim within the statutory period and the employers appealed. It was held by the Court of Appeal that the Judge had drawn the proper inference of law from the facts found and they applied Shotts Iron Co. Lid. v. Fordyce (supra). Although more than 8 years elapsed between the accident and the making of the claim by the workman the employers did not take the point that the claim was statute barred nor did the learned Judges of the Court of Appeal refer to the Statute of limitations at all. In Shotts Iron Co. Ltd. v. Fordyce

(1930)23 B.W.C.C. 73, referred to above, a miner wrenched the muscles of his back in April 1924 but he remained at work at full wages until March 1928, when, on account of increasing difficulty in performing his work, he gave it up. He made his claim for compensation for the first time in October

1. It was held by the House of Lords that, from the facts as found by the arbitrator to the effect that the workman honestly believed that the accident was trivial and that nothing serious had happened to him, the proper inference of law to be drawn was that the failure to make claim within six months was occasioned by a reasonable cause; There again there was no reference at all to the Statute of Limitations. It is significant to observe that apart from the Lingley case, which only touched the matter in passing, neither counsel cited to us any case directly on the point although the Workmen's Compensation Acts in the United Kingdom were in operation for some 50 years, that is from 1897 when the Workmen's Compensation Act 1897 was enacted until 1946 when the Acts were repealed by the National Insurance (Industrial Injuries) Act,
2. With this apparent lack of authority we took time to consider our judgment. in carrying out our researches one of the cases which we traced and considered was that of Leivers v. Barber, Walker & Co. Ltd. [1943] 1 All E.R. 386, which we think is directly to the point. The Leivers' case was a case under the Workmen's Compensation Act, 1906 and the employers took the point that the Limitation Act, 1939, applied to claims under the Workmen's Compensation Acts and that the workman's claim was limited thereby to a period of six years preceding the date of his application to review. The Court of Appeal (Goddard, L.J. dissenting) held that the Limitation Act did not apply to any Workmen's Compensation Act and that, therefore, it did not apply to the workman's claim. The relevant sections of the English Limitation Act 1939 are the following: "2

(1)The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say: ...................... "(b) actions to recover any sum recoverable by virtue of any enactment...." The expression "action" is interpreted in section 31 of the English Act as including "any proceeding in a court of law". Section 32 reads as follows: "32.-This Act shall not apply to any action or arbitration for which a period of limitation is prescribed by any other enactment, or to any action or arbitration to which the Crown is a party and for which, if it were between subjects, a period of limitation would be prescribed by any other enactment: ..........." The facts of the Leivers case were as follows: In 1913, when the workman was 17½ years old, he was seriously injured by an accident and he was a complete invalid for 5 years when he was given light work and he was then employed as a driver of a stationary electric haulage engine from 1918 to 1941, but he was often unable to attend work. In 1941 he was totally incapacitated. The employers throughout recognised his state of incapacity, and they paid compensation under the 1906 Act from 1913 to 1921. From 1921 compensation was stopped and no compensation was paid until 1940 when some compensation was paid for a month. In August 1941 he was paid 28/- per week compensation as for total incapacity caused by the original accident in 1913. In February 1942 the workman applied to Court for review under the 1906 Act. No. arbitration ever took place and no agreement was recorded but the County Court Judge found that there was an agreement which, under section 1

(3)of the 1906 Act, was equivalent to an award. The question before the Court of Appeal was whether the Workmen's Compensation Acts were within, or without the purview of the Limitation Act 1939, and whether the rights and remedies of the workman were or were not struck at by that Act. Scott L.J., with whom du Parcq, L.J. agreed, was of the view that the language of the Limitation Act itself was sufficiently clear to exclude the whole statutory system of the Workmen's Compensation Acts from its purview, and that proceedings under them were not "actions to recover a sum recoverable by virtue of any enactment" under section 2

(1)(

1. d)of the 1939 Act ; and that if he were wrong in holding that, then the ambiguity of the language of the Act should be resolved by so construing it either on the principle of generalia specialibus non derogant or on the ground that those Acts were not within the mischief aimed at by the Limitation Acts. Some of the reasons which he gave in reaching that conclusion were that- (
2. a)out of the 3,500 or so reported cases which were quoted in the case index to Willis on Workmen's Compensation there was not one in which it had been suggested that the old Statutes of Limitation had any application to the Workmen's Compensation Acts; (
3. b)the first Workmen's Compensation Act

(1897)and the 1906 Act was, in each case, a self-contained code intended primarily to be worked by agreement and without lawyers (see opinion of the Earl of Halsbury in Powell v. Colliery Co. [1900] A.C 366 at page 371-2; (c) special and appropriate protection was given by the Workmen's Compensation Acts to both parties which rendered unnecessary any assistance from the Statutes of Limitation see section 2

(1)of the 1897 and 1906 Acts, which corresponds to section 14 of the 1925 Act, and substantially to section 14 of our Workmen's Compensation Law, Cap.

1. This imposed a double Condition precedent to the workman's right, but also constituted a double limitation upon the remedy; and just and reasonable qualifications to its rigours were added by the proviso, similar to, though not identical with; the qualifications of the bar of the Limitation Act: See section 26 Of the 1939 Act which provides for the postponement of the limitation period in cases of fraud or mistake, which corresponds to section 7 of our Limitation of Actions Law, Cap 15 The Limitation Act is essentially a general Act; the statutory legislation about workmen's compensation is essentially special-whether the 1897 or the 1925 Act be looked at: Generalia specialibus non derogant, as was held in Bishop of Gloucester v. Cunnington [1943] 1 All E.R.
2. With great respect we adopt the reasoning of Scott L. J. in the Leivers' case. For the purposes of our case we think it would be helpful to consider also the reasoning on which Goddard, L.J., based his dissenting judgment. We give below the material part of his judgment with which we are concerned (at page 394 of the Leivers' report): "The First point to be considered is whether the Limitation Act applies to workmen's compensation proceedings at all. It is said that the Act contains is own period of limitation; and so is excluded from the provision of the 1939 Act, sect.
3. By sect. 2 of the 1906 Act, now replaced by sect. 14 of the 1925 Act, it is provided that proceedings for compensation shall not be maintainable unless notice of the accident is given as soon as practicable; and unless the claim for compensation is made within 6 months from the date of the accident. It is set tied beyond all question that in speaking of the claim for compensation, the Act does not mean bringing proceeding for compensation. Assuming for this purpose that the proceedings in question are either action is defined in the limitation Act, or an arbitration to which that Act applies, in my opinion, the words in sect. 2 of the 1906 Act, to which I have referred, cannot be regarded as imposing a period of limitation. I think they impose a condition precedent to the brining of proceeding; but they do not limit the time within which proceedings can he taken. If the claim referred to m sect. 2 is not, the same as 'proceedings', the Limitation Act, 1939, s. 2, has no bearing upon it ; what tie Act affects are the proceedings brought after the claim. Many instances are to be found where a statute has provided that notice of claim should be given, and: at the same time in imposed a period within which the action must be brought. The Employers' Liability Act, for instance, requires that notice of injury should be given within weeks and the action brought within 6 months, or in case of death within 12 months. It appears to me that the former requirement is in the nature of a condition precedent; the matter is a limitation. Then it was quite common to find similar provisions in Acts relating to public bodies before the Public Authorities Protection Act repealed them and substituted a uniform period of Limitation. This is now replaced by sect. 21 of the 1939 Act. Take, for instance, the Highway Act, 1835, s.
4. No action lay for anything done in pursuance of the Act unless 21 days notice of claim was given to the proposed defendant, to give the latter an opportunity of tendering amends; and the action had to be brought within 3 months of the cause of action. It is true that in workmen's compensation cases the employer has power to apply for arbitration as soon as he receives notice of claim, and so can protect himself against undue delay, M. Cafferty v. MacAndrews but when matters of positive law have to be considered, matters of hardship or convenience do not come into question; all that has to be done is to construe the Act; and, in my opinion, it is wrong to regard sect. 2 of the 1906 Act as prescribing a period of limitation for proceedings, though it does impose a condition precedent to taking proceedings for enforcing the claim, and this, I think, was the opinion both of LORD WARRINGTON and LORD THANKERTON in the last cited case". Although one can see the force of Lord Goddard's reasoning on the basis of the language of the English Act, the following difference in the wording in the Cyprus statute is to our mind decisive, and on the same reasoning the case should be decided by us the other way. The English section reads as follows (section 2

(1)of the 1906 Act and section 14 of the 1925 Act): "Proceedings for the recovery under this Act of compensation for an injury shall not be maintainable unless. the claim for compensation with respect to such accident has been made within six months from the occurrence of the accident causing the injury.". Section 14

(1)of the Cyprus Law, Cap. 188, reads as follows: "Proceedings for the recovery under this Law of compensation .shall not be maintainable unless .application for compensation with respect to such accident has been made within six months from the occurrence of the accident causing the injury.". Section 18 of our Law further provides that such an application for compensation shall be made in the prescribed form and manner to a Court of competent jurisdiction, that is to say, the District Court, and that such Court shall determine the claim for compensation, unless determined by agreement. The difference between the two sections is fundamental. In the case of the English statute the claim has to be made to the employer and it may be made in an informal way within six months. In the case of the Cyprus statute a formal application has to be filed in Court within the time limit of six months. The foundation of Lord Goddard's reasoning is that the words in the English Act impose a condition precedent to the bringing of proceedings, and that they do not limit the time within which proceedings can be taken, in which case the requirement would be a limitation. In the case of the Cyprus statute it is abundantly clear that section 14 imposes a period of limitation for taking proceedings in Court and not for making an informal claim to the employer which would be a condition precedent to the taking of proceedings for enforcing a claim. Lord Goddard deals also with another point, that is to say, that the proceedings in England arc by way of arbitration and in the absence of agreement between the parties as to the arbitrator the matter of compensation is determined by the County Court Judge, and he comes to the conclusion that that is a "proceeding in a Court of law" within the definition of the expression "action" in section 2 of the English Act; but this does not affect the matter with which we are concerned in this appeal as in this case of the Cyprus statute it is clear that an application for the determination of compensation conies within, the definition of an "action" in section 2 of our Law, Cap. 15. Considering now the wording of our Limitation of Actions Law, Cap. 15, sections 5 and 10, as well as the wording of Sections 14 of our Workmen's Compensation Law, Cap. 188, we are of the view that the Workmen's Compensation Law, constitutes a self-contained code and that it was never the intention of the legislature that the Limitation of Actions Law, Cap. 15 should apply to proceedings under it. For these reasons we are of the view that the trial Court was wrong in holding that the proceedings were statute barred. As we have decided this point in the workman's favour we shall now proceed to hear argument on the remaining ground of appeal and the cross-appeal. Judgment it terms. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο