§1 In Cast Away, Robert Zemeckis staged an unforgettable actor pair, made of the world-renowned actor Tom Hanks and a certain Wilson, which happens not to be a man, but a volleyball. The film narrates how Chuck Noland, a FedEx employee, survives an airplane crash in the Pacific Ocean and then struggles to stay alive for four years on a desert island, before finally coming back to the civilization with relief, but not without difficulties. Tragically isolated, the hero develops a very tight friendship with a volleyball that was part of the airplane’s freight. He talks to it constantly, preserving his mental health by this fictive re-creation of a dialogic situation, in spite of the non-reciprocal character of discussion with an inanimate object. The moment when the volleyball changes status to become a companion for this new Robinson Crusoe is clearly shown in the film: injured, the hero accidently imprints his bloodied hand onto the ball. Wilson comes to life from the hand and blood of his human partner (Figure 1).
Figure 1: T. Hanks giving life to Wilson the Volleyball, screenshot from Cast Away (2000) directed by R. Zemeckis, 20th Century Fox and Dreamworks Pictures.
§2 The trace of blood looks like a schematic but sympathetic face, which will henceforth become the continual witness of the hero’s actions, his beloved interlocutor and support. The emotional climax of the movie occurs when Chuck Noland, who has managed to escape the island and is drifting on the ocean, hoping to be rescued by a passing boat, loses his companion, blown away by a wave.
§3 The reception of the film in general, and of this scene in particular, is notable. Tom Hanks himself stated that there was a before and an after in his career: before 2000, fans used to shout him “Run Forrest, run!”; after Cast Away, they called him “Wilson.” The general audience of this film was marked by the pathetic and truly heart-breaking separation of the man from the ball lost in the sea: one can still find on the web movie reviews, in which viewers wonder why they still cry at the loss of a volleyball, when watching the movie for the third time! A science blog from the New York Times reports that the film has been used as a case study for researchers in psychology from Chicago and Harvard: according to them, the film reflects very well the “irrepressibly social nature of Homo Sapiens” and the volleyball Wilson is an eloquent example that demonstrates how “non-human connections can be very powerful.” Shot in the beginning of this century, this film certainly echoes unwittingly a current concern for re-thinking the partnership between humans and things, initiated by the works of Bruno Latour and now carried on by the tenets of the New Materialism, a theory that seeks to go beyond the dichotomy of human versus thing, subject versus object, to advocate for a more interactive and even-handed relationship.
§4 How to connect these current trends of thought with Antiquity? The gap is perhaps not as wide as expected. An intense companionship between a man and an object on a desert island has been staged in the theater, as early as in a 5th-Century Athenian tragedy. In Sophocles’ Philoctetes, the famous archer has been abandoned on the hostile island of Lemnos by the Greek army, for fear of ritual pollution and discomfort. Bitten by a snake, Philoctetes suffers from an incurable foot injury. For ten years, his survival depends on a famous object, a supernatural bow inherited from Heracles, which means everything to him: his identity – Philoktetes is etymogically the one who loves his possession –, his past and history, his unique means of survival (Sophocles plays on the homonymy of the Greek words βιός, ‘bow’, and βίος, ‘life’), a potential aid for walking, and a privileged interlocutor. To be more precise, all of surrounding nature becomes the addressee of the speech of the isolated hero: his lyric second-person address to the cave, the mountains, the birds, the woods, and finally the island of Lemnos itself, is the trope that eloquently indicates the separation of Philoctetes from the human society. But the bow enjoys a very physical relationship with the hero: Philoctetes holds it continuously in his hand, and this strong haptic contact is underlined by the repetitive use of the word χείρ and of verbs of touch (βαστάζειν, θιγγάνειν, ψαύειν and ἐπιψαύειν), which appear statistically much more often than in any other extant tragedy. Whereas these verbs are in other tragedies applied to physical contact between individuals, most often philoi, in Philoctetes they serve to express a particularly intimate contact between the man and the object. In Homeric language, χείρ can also mean the arm, rather than the hand, and can refer in a more general sense to the physical power of a hero. Yet, in the case of Philoctetes and his bow, χείρ really is the hand, the organ that holds the object and makes it a natural extension of the human body. Following Merleau-Ponty, modern scholars have developed the idea that touch erases the boundary between subject and object: “the sense of touch establishes a distinctive relation with the environment, in which there is no clear separation between subject and object as singular coherent entities,” according to Obrador-Pons. This quasi-prosthetic relationship between Philoctetes and his bow has also a dramatic interest: because the whole play is about the theft of the bow by Neoptolemos and Odysseus, a climactic scene of emotional crisis is carefully prepared, in anticipation of the moment when the bow will be snatched away from the hands of Philoctetes. The distress of the ever-more isolated hero culminates when he sings a kommos, a solemn lyric address to his lost bow, as if the power of language and song could help return it to him (1123-1131). The hymnic “ὦ” (1128), used ordinarily for a human or divine interlocutor, is strikingly applied to an object; the epithet φίλος qualifies first the bow itself (ὦ τόξον φίλον, 1128) then Philoctetes’ hands, his “loving hands” (ὦ φίλων χειρῶν ἐκβεβιασμένον, 1129), onto which he projects the terrible loss. The grammatical construction suggests that the hands themselves have been violently deprived (ἐκβεβιασμένον) of their beloved possession. The anthropomorphization of the bow goes as far as suggesting that the bow will be able to see (ὁρᾀς, 1130; ὁρῶν, 1126) with its own eyes, and to judge, with its moral sense (φρένας, 1130), the evil deeds of Odysseus.
§5 From Philoctetes’ bow to Chuck Noland’s ball, the similarities are at least as striking as the differences. It is remarkable how a 21st century film-maker has unknowingly substituted for a weapon, which epitomizes the warrior society of ancient Greek tragedy, a symbol of our leisure society. I mentioned the strong emotional response that the on-screen duo has received: is it possible to know whether the spectators of the Sophoclean play, first produced in Athens in 409, then probably re-performed all over the Greek world afterwards, cried over the pathetic vision of Philoctetes, deprived of his bow as of one of his limbs?
§6 One could try to answer this question by investigating the emotional response of spectators in the ancient theater, but that is not the topic on which I would like to focus in this paper. As seen in these two examples, both ancient and modern, the attachment to the object expresses itself in a dramatic way when a separation occurs. The artistic genres both of cinema and theater allow the representation of these strong feelings of sadness and mourning for objects. However, did the separation from objects that might have occurred in the daily life of Greek individuals arouse some kind of emotion, and if so which ones? I use the expression “daily life” as a convenient shorthand: I am well aware of the methodological issues raised by speaking of daily life, while I am dealing with a great diversity of people who lived centuries ago, with a limited knowledge based on incomplete sources which are, moreover, difficult to interpret. I cannot reconstruct “how an individual or group of people felt”, as A. Chaniotis put it, but following in his footsteps, I am examining whether the social and cultural parameters allowed the representation and display of emotions towards objects lost, given, or dedicated to the gods. Here is one of the threads I have been following recently: the study of votive epigrams, both inscribed and literary, which were the written traces, real or fictive, of an act of dedication to a divinity. Although written by professional poets who worked from formulaic patterns, these votive epigrams were at least partly chosen and associated by individuals with a personal act of dedication in a particular situation.
§7 To dedicate an artifact to a god meant to give it up: the object became consecrated (ἱερός) and could not be retrieved from the temple anymore. All kinds of artefacts were offered to the gods as votive objects: statues of different sizes, weapons, pieces of armor, representations of human limbs, votive tablets, a variety of personal objects, etc. One can assume that to dedicate the figurines, miniatures or wooden tablets (pinakes), which were almost industrially produced and sold close to the temples for immediate consumption, did not provoke any feeling of loss. But what about objects that the dedicators had used for years, and sometimes made themselves, and which they may have invested with a particular affective value?
§8 Dedicatory epigrams present the interest of having a very conservative form: the earliest votive inscription found on a bronze statuette of Apollo, dedicated by Mantiklos, (circ. 700 BC), follows a pattern that stayed alive for many centuries. Conventional formulae were transmitted from the archaic period to the Imperial without great changes, which does not exclude regional variants as well as refined or spiritual re-workings of traditional topoi throughout the centuries. This relatively stable material allows longue durée investigations. However, the other side of the coin is the plain and dry character of the stereotyped formulae tirelessly used and re-used in these dedicatory epigrams. Detecting any kind of emotional nuance is not an easy task, in purely informative and dispassionate formulations, where the object itself is most often not named or described: a votive inscription carved on an artefact does not need to name and describe it, the object is here and speaks for itself, as is attested by the old tradition of speaking objects that say “I”. If emotions prompted by objects were involved in this ritual act, the written traces of the performance of dedication do not directly hint at them.
§9 However, in the broad-scale survey of Greek votive epigrams from all over the Mediterranean world that I conducted, I noticed rare mentions of the hands, in a scanty but varied array of inscribed and literary epigrams. These mentions are statistically exceptional. In tragic dramas, we have briefly seen how a mention of the hands emphasizes the implication of a character in a particular action, as well as the physical contact between humans and things; in the case of Philoctetes, it contributes to expressing the quasi-symbiotic relationship that the character enjoys with his bow, felt as a vital extension of his own body. In a study of female dedication of slaves in the sanctuary of Meter Theon at Leukopetra (Macedonia, mid-second to mid-third century CE), A. Chaniotis suggests that the unique phrasing ‘I gave over with my own hands’ (‘παρέδωκα ταῖς ἰδίαις χιρσίν’) expresses an ‘emotional attachment both to the goddess and to the girls’ whom she dedicates. This affective interpretation is an interesting track to follow for my own investigation. After all, slaves and objects are sometimes considered as sharing the same status of instruments in ancient Greece.
§10 The best preserved and most ancient example of a votive inscription that mentions the hands of the dedicator is a metrical inscription found on a statue base from the Acropolis of Halae, dated to the first part of the VIth century BC.
§11 The value of the offering appears through the emphatic epithet περι[κ]αλέα; the dative complement χερσὶ φίλαισιν, in a strategic position at the beginning of the second verse, could suggest the personal and physical involvement of the dedicant in his act of devotion towards Athena. The epithet φίλαισιν may be used here as a simple possessive in the Homeric style (“with his hands”). However, the strong meaning of φίλος may be more relevant: Euandros offers his present to the goddess with ‘loving hands’, and perhaps ‘loved hands’, according to the double meaning, active and passive of φίλος, if the goddess answers him with a reciprocal χάρις. The two other stone inscriptions found in the Acropolis of Athens and dated to the first part of the 5th Century BC are in a much more fragmentary state. However, we can read quite confidently that they present the same word χερσὶν, respectively at the beginning of their second and third verse, which suggests the potential existence of a formulaic pattern involving the hands of the dedicants.
§12 It has been argued that this phrasing indicates that the dedicators were makers, who offered their own products to the divinity. The dative χερσὶ φίλαισιν could actually complement either the participle ποιῶν (which is however disputable) or the principle verb ἔδοκεν, or even both. Artisans and makers may indeed be a category of people who could invest the objects they produced with a specific affective value: according to Aristotle in the Nicomachean Ethics, every artist likes the works he produces (τὸ οἰκεῖον ἔργον ἀγαπᾷ); poets in particular, Aristotle carries on, love them as if they were their own children (στέργοντες ὥπερ τέκνα). However, I would be prone to follow Joseph Day’s caution when commenting on the same inscription: the use of the verb ποιῶ, even if certain, would not necessarily mean that the dedicator is a maker-dedicator; it can simply have the meaning of “to cause to be made”. Although the category of makers is said to enjoy a particular affective relationship with their creations by Aristotle, it may leave a space for other types of dedicators.
§13 Following the ‘hand’ motive, I have tried to relate these votive inscriptions to both funerary epigrams and literary votive epigrams. Hands are quite commonly mentioned in funerary epigrams, both inscribed and literary: it made a great difference, and an evidently affective one, to be buried by the hands of one’s own people, parents or children in particular, or by the hands of a stranger. Children are sadly buried by the hand of their parents, and we have at least one late occurrence of χερσὶ φιλαῖς, at the same initial position of a verse we noted before: according to this inscription, a father rejoices to receive funeral rites from “the loving/loved hands” of his daughter. A male sailor can be said to be fortunate if he is buried in his own country, “by the hands of his own people”. On the contrary, to receive funerary honors by the hands of a stranger (ξείνου χερσὶν) is a source of deep grief and distress. Literary epigrams from the Anthologia Graeca embroider in a variety of ways on this motive: in one case, the tomb itself is said to be built by the “mourning hands” of a father mason, and the repetition of the word χεῖρ highlights the personal and physical implication of the father in the funeral of his son. In another one, a father who expected to be happily buried by the hand of his son laments that it is his own hand that buries the child, in a tragic inversion of the natural law. One can really speak of a “poetics of the hands” developed in a variety of ways in funerary epigrams, which would be worth investigating. The hand is not only used as a metonymy for a person, but is connected with haptic contact and emotion, as is shown by these other examples: in an undated inscription from Rome, the hands mentioned, qualified by the tragic epithet δείλαιοι “wretched”, are those of the parents painfully gathering the ashes of a beloved child. On an Alexandrian inscription dating back to 400-300 BC, the hands are that of a mother who cannot hold her son in her arms anymore: Pierre Boyaval has detected a Euripidean influence in this verse inscription and showed that the epigrammatist had some knowledge of the Phoenician Women. Funerary epigrams seem thus to be imbued with tragic phrasing emphatically expressing the feeling of loss and grieving.
§14 If mentions of the hands are meaningful in funerary epigrams, can we postulate that what is offered to a divinity “by one’s hands” or even “by one’s loving hands” is endowed with an affective value? It is certainly a mark of piety and faith toward to the god who receives the offering, but it may also hint at an affective relationship with the object itself: the object which has been held and manipulated by these very hands, before being hung up on a god’s statue or deposited in his/her temple.
§15 A last type of literary votive epigrams, dating from the second century BCE to the sixth century CE, may finally highlight specific categories of objects that can enjoy a special relationship with people: tools that their possessors, now in old age, cannot use, nor even hold anymore in their shaking hands. Thus the epigram of Antipater, one of the latest poets in the “Garland of Meleager”, in which the now old Harpalion dedicates his wooden club to Heracles, since his “hands would no longer support [its] weight” (ἐπεὶ βάρος οὐκέτι χεῖρες ἔσθενον). The physical contact between hands and objects is broken due to his degraded state: he is now an “all wrinkled” huntsman (ὁ πᾶς ῥυτίς), whose hair has turned white (κεφαλὴν λευκοτέρην), not able anymore to handle his weapon with his previous force. In the epigram 83, it is this intimate physical contact between hand and object which seems to be expressed through the verb ψαύω (μὴ ψαύσαιμι λύρης ἔτι), the ‘shaking hand’ of the musician (τρομερὰς χεῖρας) not being able to hold the lyre anymore. In another example from the sixth century CE, the participle καταρμόζων is unusually coupled with the preposition ἐκ: Kallimenes, who dedicates to Hermes all his calligraphy implements, has to “unfit his shaking hand from his long labor” (τρομερὴν χεῖρα καθαρμόζων ἐκ δολιχῶν καμάτων): that is to lose the habit of holding in his hand the disc of lead, the pens, the ruler, the sharpening stone, the sponge and the ink-box, which were his companions in labor. In the epigram 73, also from the sixth century CE, the “idle hand, now heavy” (χεῖρὸς ἀεργηλᾶς τάνδε βαρυνομένας) of an old shaking piper offers to Pan his shepherd’s crook. These literary epigrams did not accompany real objects dedicated in temples, yet they are not purely poetic inventions: they reflect actual ancient practices of dedications of worn-out tools that are well attested by archaeological findings and give some material support to these retirement epigrams. These bittersweet complaints about old age are expressed through the visual image of a hand giving up his daily work companions. They attest to both the symbiotic relationship between hands and tools handled during a lifetime and the emotion of loss one can feel when comes the moment to give away these objects felt as living parts of the self.
§16 According to R. Osborne, “votive deposition matters because it is an integral part of the complex relationship between people and objects” in ancient Greek society. I agree with him, but one has to identify and analyze, not only the dedicators, not only the nature of the votive objects, not only the vertical and horizontal relationships that are negotiated in the act of dedication, but also the possibility that people could experience feelings for the objects that they gave.
Anyone who wants to understand memory should read Marcel Proust, whoever wants to understand emotional complexity should read Walt Whitman – these are the recommendations of J. Lehrer, who as a student of the neurosciences once worked in the laboratory of E.R. Kandel, an expert on memory and a Nobel Prizewinner.
§17 Should anyone who wants to understand affective relationship with inanimate objects in antiquity read ancient Greek tragedy? I tend to think so. Greek tragedy’s propensity for representing strong feelings for objects gives us a privileged access into this specific dimension of the sensitive life of ancient Greeks. Arguing that the fifth-century Athenian spectators of Philoctetes, as well as those of the revivals of the play throughout all the Hellenistic period at least, if not the readers of the Imperial period, certainly felt deep empathy for him when he laments over the loss of his beloved bow, will probably not raise much objection. However, documenting this affective relationship between individuals and things, by investigating other textual and material evidence, allows going further in intuitive but superficial agreement. As the archaeologist Sarah Tarlow rightly stresses, “theorized, critical understandings of the emotions of the people in the past are better than unexamined, implicit ones”. Cross-examination of a variety of evidence, including but not limited to “literary texts composed by great minds”, makes it possible to start discussing historical facts more deeply and go beyond the assumption that Greeks could probably experience some feelings towards some objects. What is at stake in my investigation is to evaluate what kind of texts and artifacts authorize the representation and display of emotions towards inanimate objects in ancient Greek society, and why and how they do so.
§18 By exploring the pragmatics and poetics of physical contact between hand and object, which can convey so much energy and vitality, power and emotion, I have started to investigate potential correspondences between Greek tragedy and votive epigrams. In the absence of direct evidence for the study of emotions in the antiquity, classicists need to find indirect ways and forge new methodological frames and tools to be able to reconstruct the different social and cultural norms, which regulated the sensitivity and emotional life of the ancient Greeks in different contexts. If I prefer to stay rather cautious in the analysis of the rare mentions of the hands found in inscribed and literary votive epigrams, I feel confident that further investigation, taking into account other types of formulae, and combined with a survey of relevant archaeologically-excavated dedications will prove to be illuminating.
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 I would like to give my warmest thanks to Professor Nagy, the senior fellows, and all the CHS staff for their kindness and support during my fellowship stay. I am also grateful to all my co-fellows for their helpful and inspiring comments on my work.
 R. Zemeckis, Cast Away, 2000, 20th Century Fox (North America) and Dreamworks Pictures (International).
 Brown 2004; Bennett 2010; Boscagli 2010; Coole and Frost 2011; Hodder 2012.
 See the recent attempt of Purves (2015) to connect New Materialism with Homer’s “vibrant materialism”.
 I must thank here Douglas Frame for reminding me of this etymology. Philoctetes also presents himself to Neoptolemos as “the master of the weapons of Heracles” (262), as if it were the most important feature that defines his identity.
 Philoctetes, 931, 933; see also 1126.
 About the concrete staging of the bow in Sophocles’ times and in modern productions of the play, see Noel “Prosthetics weapons in Greek tragedy” (forthcoming in 2017).
 The direct address is used towards the earth (833), the light (886), parts of his body (1038), the cave (976, 1111) the landscape (960, 1018) the animals (960, 1124), and Lemnos (1452-1458).
 The occurrences of χείρ in relation with the bow are: 655, 748, 1110, 1125, 1129, 1150, 1207, 1291. The hands of the characters are also a focus of attention when they join together as a sign of alliance (δεξίωσις, 813, 942, 1286); aggressive hands are these of Odysseus stealing the bow, 1059, and touching his sword in a threatening way, 1254; the verbs of touch applied to Philoctetes and the bow are: 655, 667, 669, 761.
 See for example Iliad, VI, 81; XXI, 166.
 Obrador-Pons 2007: 136, quoted by Purves 2013: 29.
 For a recent paper about ancient reperformances of Sophocles, see Finglass 2015. There is no evidence of a particular reperformance of Philoctetes, but Finglass argues that Sophocles competed in Attic theatrical festivals outside Athens and that his plays were most probably reperformed in Greece and in Italy by the mid-fourth century. In his famous Oratio 52 (2nd century AD), Dio of Prusa gives an account of his comparative reading of the three Philoctetes, produced by Sophocles (the only one preserved), Aeschylus and Euripides. The reading of the plays is interestingly presented itself as an emotional experience of consolation and solace, as Dio suffers himself from a disease and shares in some ways the condition of Philoctetes (§ 2-3).
 For a recent bibliography on this question, see Stähli 2013:117n11.
 Apart from Philoctetes, see the uses of χεῖρ in the case of the relationship of Ajax with his sword (407, 661, 729, 1173); or of Electra and her urn (326, 431, 1129, 1132).
 See Aristotle Politics, 1254a, 16-17, the slave is a κτῆμα δὲ ὄργανον πρακτικὸν καὶ χωριστόν, “a good and an instrument made for use and separable”. I am thankful to Cédric Brélaz, my colleague and fellow at the CHS, for raising a thought-provoking objection: the mention of the hands may only be a written transcription of the performative act of the juridical manumission of slaves, without necessarily carrying an affective meaning. There is probably indeed some research to be done here. However, I would be prone to compare this mention of χερσὶ φίλαισιν with other dedications formulae, where the hand motive(do you mean motif?) emphasizes the care with which women raised their children (see for example the Hellenistic inscription from Athens, Acropolis, CEG 774, IG II2 4334: Melinna, who brought up her children by her hands (χερσί) dedicates a clothe, piece of her labors, to Athena. In a feminine context that implies the raising and care of children, the affective meaning of χεῖρ seems relevant.
 SEG xv, 352= CEG 348= Lazzarini n°824; see also Goldmann 1915:439, n°1.
 See Boyaval (2006): 210, for a similar interpretation of an Egyptian metrical epitaph.
 See Goldman 1915:441. He rightly finds ποιῶν satisfactory for the meaning, but not for the grammatical correction. If a participle were used, it would rather be ποιήσας. Other restitutions propose the substantives πόλον (‘crown’, ‘head-dress’) or πόρον (device?), see Hansen 1983:185.
 Aristotle Nicomachean Ethics IX, VII, 3.
 Day 2010: 6n17; see also Lazzarini 1976: 1, 76; Svenson-Evers 1996, 382-383; Umholtz 2002: 264n14; Keesling 2003, 72-74, engages with Raubitschek’s criteria to identify dedications by potters and painters (1949: 465) and shows rightly that they are not entirely convincing.
 For inscribed epigrams, see for example: CEG 171, 586, 631, Peek, 715, 834, 947, 1160, 1571, 1874, etc.
 IG XIV 1363= IGUR III 1149 = Peek 1571, Rome, 4th century AD. See also IGBulg I2222: a woman rejoices to have spent her life in the arms of her husband Yakinthos, ἐν χερσὶ φίλαις Ὑακίνθου.
 Peek 1874, Knid, second or first century BCE.
 IGUR III 1242a= IG XIV 1722= Peek 714, Halikarnass., ca. 100-200 CE, 7-8.
 For the meaning of τροφέων as “parents” in funerary epigrams, see for example IG XII, 5,308.
(echoes Euripides, Phen. 165-166 ; cf. Boyaval, Cripel 24, (2004), 70/71, the poet shows his knowledge of other passages of the play).
 I would therefore nuance the statement of R. Parker who asserts that “the sophisticated poems of book 6 of the Anthologia Palatina which pretend to accompany much humbler offerings are too far removed from actual dedicatory practice” to appear in the catalogue he made for the ThesCRA I:269-281. Parker himself corrects this first statement, when acknowledging a few pages later that the literary ‘retirement offering’ reflect the fact that “individuals sometimes dedicated objects that spoke of their activities without further specific motivation” (279). References to small objects dedications can also be found in pages 272, 280, 296-310.
 Rouse 1905:71, 368-369; Van Straten 1981:80.


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Arbitrators are mortal. They may make mistakes in issuing their awards. In what circumstances may they correct an award?
The scope of the authority of an arbitral tribunal to alter its award after the issuance of the award has been examined in a recent Scottish case – NKT Cables A/S v. SP Power Systems Limited,  CSOH 38. The Scottish court held that the arbitrator did not have the authority to issue an amended award. This decision raises important issues about the authority of an arbitral tribunal to amend its award.
an arbitral tribunal should have power to amend patent mistakes in its award, such as an arithmetic or grammatical mistake.
The other theory is that the arbitral tribunal should have power to properly express its substantive intention, and if it has failed to do so in its award, it should be able to amend the award to make that intention clear.
The second theory is controversial because it might be used by the arbitral tribunal to change its award, and such a result is contrary to the finality of arbitral and judicial decisions, and the rule that after making his or her decision, a judge and arbitrator is functus officio, that is, his or her office and function is ended.
It should be noted that there may a “slip or omission” provision in the Rules of Civil Procedure governing court orders and judgments. In Ontario, that provision is found in Rule 59.06. One issue is whether the arbitral and judicial “slip or omission” provisions should be similarly interpreted, or whether the judicial rule should be interpreted differently because of the public nature of court proceedings, because of the way that judicial orders and judgments are pronounced, issued and entered, and because judicial orders and judgments are appealable.
NKT applied to court to enforce an adjudication award made under the Housing Grants, Construction and Regeneration Act 1996 in the amount of about £2.1million. That amount was specified in an amended decision of the Adjudicator. In the alternative, NKT sought to enforce the Adjudicator’s original decision in the amount of about £1.8 million.
In his Award, the Adjudicator inserted the wrong number for the gross value of the Contract, namely of £9,376,220.72. In the court proceedings, the parties agreed that this number was a “rogue” figure and could not be derived from any part of the Adjudicator’s award.
That night, the Adjudicator sent an email to the parties correcting his award, adopting the numbers set forth in NKT’s letter.
In this process, the Adjudicator did not ask for or receive any submissions from SP, which thereafter complained about an absence of natural justice.
The Adjudication regime applicable to this Adjudication contained a “slip or omission” provision, which enabled the Adjudicator to “correct his decision so as to remove a clerical or typographical error arising by accident or omission.” However, the court held that this provision did not, for timing reasons, apply to this Adjudication. Nevertheless the court found that this provision was incorporated into the Adjudication agreement as an implied term.
The court held that, while the Adjudicator had the authority to correct the gross value of the Contract, since both parties agreed that there was an error in its calculation, he had no authority to insert the amounts for the Agreed Claims or Agreed Interest. Those amounts were in contention, were not dealt with in the original award, and the Adjudicator had no jurisdiction to insert them into the award by way of a correction.
The decision in NKT Cables A/S v. SP Power Systems Limited may be contrasted with a 100 year old decision of the Saskatchewan court in Debret v. Debret, 1917 CarswellSask 123, 10 Sask. L.R. 366.
Both of these decisions dealt with the attempted correction by the arbitrator/adjudicator of something that did not appear on the face of the original award, that is, to correct an omission. In NKT v. SP, the correction was not allowed, whereas in Debret it was allowed. What is the difference?
It seems that, in NKT v. SP, the Agreed Clams and Agreed Interest, while referred to as ‘Agreed’ were still in substantial dispute as to whether they should be allowed in the award. Moreover, these amounts were necessary ingredients in arriving at the final award. The Adjudicator did not, in his original award, make an explicit decision about how these items should be taken into account, even though the parties expected him to do so. Therefore, his subsequent award was not a correction of his original award but a new award.
The fact that, in NKT v. SP, the Adjudicator had not referred to the Agreed Claims and Agreed Interest in his original award should not, it is submitted, be dispositive of the issue. Otherwise, an “omission” could never fall within the “slip or omission” provision; and the decision in Debret could not be correct. Rather, the issue is whether the omitted item was in fact disputed or undisputed. Even if agreed upon as to amount, a claim may still be contentious for any number of reasons. But if it is truly undisputed as to fact and as to its proper inclusion in the award, then the “slip or omission” provision should apply to it if the arbitrator fails to refer to it in the award. The decision in NKT v SP seems to be justifiable only on the basis that the Agreed Claims and Agreed Interest were disputed so far as their inclusion in the award.
It is possible to conceive of situations in which even an omission of a disputed issue from the award should be correctible, even under the narrow form of the “slip or omission” provision. If the arbitral tribunal accidentally left out a page of its award on which it dealt with that issue – and can positively demonstrate that this has occurred – it seems that the tribunal should be able to issue a corrected award with that page in it.
A number of issues arise from an Ontario perspective in relation to the NKT decision. Would the “omission” in NKT fall within section 44(2) of the AA as amounting to “an injustice caused by an oversight on the part of the arbitral tribunal” or within section 44(3) as “an additional award to deal with a claim that was presented in the arbitration but omitted from the earlier award”? Or would the omission fall within Article 33(3) of the Model Law, if that Law had applied and NKY had applied to the tribunal for “an additional award as to claims presented in the arbitral proceedings but omitted from the award”?
There are a number of other decisions in Canada dealing with the “slip or omission” section in arbitration statutes. Perhaps the leading case is the decision of the British Columbia Court of Appeal in Westnav Container Services Ltd. v. Freeport Properties Ltd., 2010 CarswellBC 124, 315 D.L.R. (4th) 649, from which leave to appeal to the Supreme Court of Canada was denied. The factual situation in Westnav decision is opposite to that in the NKT v. SP. Instead of remedying an omission, the arbitrator deleted something from the original award.
Freeport subleased land to Westnav. Westnav exercised a right to renew the sublease. The parties agreed to submit the fair market rent to arbitration. In his award, the arbitrator accepted the direct comparison method. In his analysis of the direct comparison approach, the arbitrator mistakenly said the rent for a particular property (the Ewan property) was $4.38 per square foot for the building, whereas that rent represented the rent for both the building and the land.
Westnav applied to the arbitrator for correction of “what appears to be an accidental or arithmetical error” or alternatively for clarification pursuant to s. 27 of the Act. Freeport contended the award should remain as it was. The arbitrator released a corrected award, acknowledged the error, but stated that the decision as to rent was the same. The corrected award deleted the mention of the particular property from the analysis and included fresh passages explaining the original conclusion.
Under section 27(1) of the Commercial Arbitration Act of British Columbia, the arbitrator had the authority to correct: a clerical or typographical error, an accidental error, slip, omission or other similar mistake or an arithmetical error made in a computation.
A decision which demonstrates a much broader approach to the power to correct the arbitral award is the decision of the Ontario Divisional Court in Canadian Broadcasting Corp. v. Joyce, 1997 CarswellOnt 2861, 34 O.R. (3d) 493. In that case, the arbitrator had held, in his interim decision, that the employee had been terminated for just cause. Then in his final award, the arbitrator found that he had been incorrect, that the job was incapable of performance, and that the employer was 75 percent at fault.
This decision is a quite remarkable recognition of the arbitrator’s right to change his mind on a central ingredient in the arbitration. Even though the arbitrator had made a key finding – that the dismissal was for cause – the arbitrator was entitled to change that finding because it was incorrectly stated. That approach, clearly, is a different and broader one than that adopted in the previous decisions referred to in this article.
To minimize the chances that the arbitral tribunal may issue an award with a mistake in it, the tribunal may consider issuing the award in draft form. In doing so, it may advise the parties that it will not permit re-argument but will allow the parties to draw any slips or omissions in the draft award to the tribunal’s attention and allow an opportunity to settle the terms of the order contained in the award. This is my practice in issuing awards. This practice depends on the good faith of the parties and assumes that they will not abuse this process by taking ex parte or secret steps to frustrate the settlement, issuance and enforcement of the award.
See Heintzman and Goldsmith on Canadian Building Contracts (5th ed.), chapter 11.

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1. Mark CLAYSON, born Abt 1752, [baptized 1752 at St Giles, Kingston (Kent)?], died 1 Dec 1837 Aged 85, buried 6 Dec 1837 at St Mary the Virgin, Elham (Kent). He married Sarah NORRIS, 4 Jun 1773 at St Mary the Virgin, Elham (Kent), marriage license 3 Jun 1773 at Canterbury, born Abt 1751 in Cheriton (Kent), died 1836 in Elham (Kent) - Aged 85, buried 20 Nov 1836 at St Mary the Virgin, Elham (Kent).
+ 2 i. William CLAYSON born Abt 1775.
3 ii. John CLAYSON, born Abt 1777, baptized 22 Jun 1777 at St Mary the Virgin, Elham (Kent).
+ 4 iii. Isaac CLAYSON born Abt 1778.
5 iv. Edward CLAYSON, born Abt 1781, baptized 26 Aug 1781 at St Mary the Virgin, Elham (Kent).
6 v. Sarah CLAYSON, born Abt 1784, baptized 14 Mar 1784 at St Mary the Virgin, Elham (Kent). She married John STROUD, 7 Apr 1804 at St Mary the Virgin, Elham (Kent).
7 vi. Henry CLAYSON, born Abt 1786, baptized 23 Jun 1786 at St Mary the Virgin, Elham (Kent).
8 vii. Martin CLAYSON, born Abt 1788, baptized 13 Jun 1788 at St Mary the Virgin, Elham (Kent).
9 viii. Elizabeth CLAYSON, born Abt 1790, baptized 23 May 1790 at St Mary the Virgin, Elham (Kent), died 1792, buried 24 Jan 1792 at St Mary the Virgin, Elham (Kent).
10 ix. Elizabeth CLAYSON, born Abt 1793, baptized 3 Mar 1793 at St Mary the Virgin, Elham (Kent).
11 x. Stephen CLAYSON, born Abt 1795, baptized 1 Mar 1795 at St Mary the Virgin, Elham (Kent), died 1800, buried 2 Feb 1800 at St Mary the Virgin, Elham (Kent).
+ 12 xi. Thomas CLAYSON, born Abt 1797.
2. William CLAYSON, born Abt 1775, baptized 12 Feb 1775 at St Mary the Virgin, Elham (Kent), died 1860 in Stelling (Kent). He married Sarah FOX, 25 May 1794 at Ss Mary & Ethelburga, Lyminge (Kent).
+ 13 i. Elizabeth CLAYSON born Abt 1800.
14 ii. William CLAYSON, born Abt 1806, baptized 12 Jan 1806 at St George, Ham (Kent).
15 iii. Sarah CLAYSON, born Abt 1809, baptized 14 May 1809 at St Mary, Stelling (Kent).
16 iv. Caroline CLAYSON, born Abt 1812, baptized 12 Jan 1812 at St Mary, Stelling (Kent).
4. Isaac CLAYSON, born Abt 1778 in Elham (Kent), baptized 30 May 1778 at St Mary the Virgin, Elham (Kent), census 1841 at Kennett Cottages, Elham (Kent), census 1851 at 21 The Row, Elham (Kent), occupation 1841 - 1851 Agricultural Labourer, died Aug 1856 in Elham (Kent) - Aged 78, buried 18 Aug 1856 at St Mary the Virgin, Elham (Kent). He married Mary Diana FORDRED, 7 Jul 1805 at Ss Mary & Ethelburga, Lyminge (Kent), born Abt 1785 in Elham (Kent), census 1841 at Kennett Cottages, Elham (Kent), census 1851 at 21 The Row, Elham (Kent), died Oct 1868 in Elham (Kent) - Aged 81, buried 17 Oct 1868 at St Mary, Elham (Kent).
17 i. Mary CLAYSON, born 1805 in Lyminge (Kent), baptized 5 Jan 1806 at Ss Mary & Ethelburga, Lyminge (Kent).
+ 18 ii. Mark CLAYSON born 1808.
+ 19 iii. Isaac CLAYSON born Abt 1810.
20 iv. Ann CLAYSON, born Abt 1812 in Lyminge (Kent), baptized 25 Oct 1812 at St Mary the Virgin, Elham (Kent).
21 v. Sophia CLAYSON, born Abt 1814.
22 vi. Elizabeth CLAYSON, born Abt 1817 in Elham (Kent), baptized 16 Mar 1817 at St Mary the Virgin, Elham (Kent), census 1851 at 21 The Row, Elham (Kent), occupation 1851 Out of Service - Housemaid.
23 vii. William CLAYSON, born Abt 1820, baptized 26 Mar 1820 at St Mary the Virgin, Elham (Kent).
24 viii. Sarah CLAYSON, born Abt 1822 in Elham (Kent), baptized 24 Aug 1822 at St Mary the Virgin, Elham (Kent).
+ 25 ix. Henry CLAYSON born Abt 1823.
12. Thomas CLAYSON, born Abt 1797 in Elham (Kent), baptized 9 Apr 1797 at St Mary the Virgin, Elham (Kent), census 1841 at The Square, Elham (Kent), census 1851 at The Square, Elham (Kent), census 1861 in Elham (Kent), occupation 1841 Agricultural Labourer, died 3 Jan 1866 in Elham (Kent) - Age given as 71, buried 10 Jan 1866 at St Mary the Virgin, Elham (Kent). He married (1) Ann HUBBARD, 27 Oct 1816 at St Mary the Virgin, Elham (Kent), born Abt 1793 in Elham (Kent), (daughter of Thomas HUBBARD and Sarah) died 1826 Aged 32, buried 6 Jan 1826 at St Mary the Virgin, Elham (Kent). He married (2) Mary FINCH, 21 Dec 1826 at St Mary the Virgin, Elham (Kent), born Abt 1796 in Acrise (Kent), (daughter of Henry FINCH and Mary Elizabeth .......) census 1841 at The Square, Elham (Kent), census 1851 at The Square, Elham (Kent), died Dec 1851 in Elham (Kent). He married (3) Mary GREENSTREET [formerly ARNOLD], 11 Dec 1854 at St Mary the Virgin, Elham (Kent), born Abt 1805 in Lyminge (Kent), (daughter of David ARNOLD and Mary) baptized 27 Jan 1805 at Ss Mary & Ethelburga, Lyminge (Kent), census 1841 at The Upper Row, Elham (Kent), census 1851 at 2 The Row, Elham (Kent), census 1861 in Elham (Kent).
26 i. William CLAYSON, born 1817 in Elham (Kent), baptized 9 Mar 1817 at St Mary the Virgin, Elham (Kent), census 1841 at The Square, Elham (Kent).
27 ii. Henry CLAYSON, born 13 Sep 1820, baptized 29 Sep 1820 at Wesleyan Chapel, Elham (Kent).
28 iii. Sarah CLAYSON, born 23 Feb 1822, baptized 10 Apr 1822 at Wesleyan Chapel, Elham (Kent).
29 iv. Joseph CLAYSON, born 11 Dec 1823, baptized 17 Dec 1823 at Wesleyan Chapel, Elham (Kent).
30 v. Samuel CLAYSON, born 13 Nov 1825, baptized 27 Nov 1825 at Wesleyan Chapel, Elham (Kent).
31 vi. Thomas CLAYSON, born 18 Jul 1828 in Elham (Kent), baptized 14 Sep 1828 at Wesleyan Chapel, Elham (Kent), census 1841 at The Square, Elham (Kent), census 1851 at The Square, Elham (Kent).
32 vii. Mary Ann CLAYSON, born 24 Mar 1830 in Elham (Kent), baptized 25 Apr 1830 at Wesleyan Chapel, Elham (Kent), census 1841 at The Square, Elham (Kent), census 1851 at The Square, Elham (Kent), census 1881 in Elham (Kent). She married John SPICER, born Abt 1824 in Elham (Kent), census 1881 in Elham (Kent), occupation 1881 Farmer & Grazier.
33 viii. Elizabeth CLAYSON, born 27 Feb 1832, baptized 25 Mar 1832 at Wesleyan Chapel, Elham (Kent), died before 1838.
34 ix. Richard CLAYSON, born 23 May 1833 in Elham (Kent), baptized 24 Jun 1833 at Wesleyan Chapel, Elham (Kent), census 1841 at The Square, Elham (Kent), census 1851 at The Square, Elham (Kent), census 1861 in Elham (Kent), census 1881 in Elham (Kent), occupation 1881 Brother-in-Law to Farmer [John Spicer], medical condition "Feeble Minded".
35 x. Elizabeth CLAYSON, born 22 Apr 1838.
13. Elizabeth CLAYSON, born Abt 1800 in Stelling (Kent), baptized 16 Nov 1800 at St Mary, Stelling (Kent), census 1841 at Stelling (Kent), census 1851 at Stelling Minnis (Kent), died 1853 in Elham RD (Kent), buried 7 Jun 1853 at St Mary, Stelling (Kent). She married William CASTLE, born 22 Sep 1798 in Lower Hardres (Kent), (son of Thomas CASTLE and Phoebe COBUS) baptized 30 Sep 1798 at St Mary, Lower Hardres (Kent), census 1841 at Stelling (Kent), census 1851 at Stelling Minnis (Kent), occupation 1841 - 1851 Farmer, died 1879 in Elham RD (Kent) - Age given as 79, buried 6 Jan 1879 at St Mary, Stelling (Kent).
36 i. Marsh CLAYSON, born Abt 1821 in Kent, census 1841 at Stelling (Kent).
37 ii. George CASTLE, born Abt 1827 in Kent, baptized 11 Mar 1827 at St Mary, Stelling (Kent), census 1841 at Stelling (Kent), died 1859, buried 25 Nov 1859 at St Mary, Stelling (Kent).
38 iii. Phebe Susannah CASTLE, born Abt 1829 in Kent, baptized 8 Feb 1829 at St Mary, Stelling (Kent), census 1841 at Stelling (Kent).
39 iv. Sarah Ann CASTLE, born Abt 1830 in Kent, baptized 31 Oct 1830 at St Mary, Stelling (Kent), census 1841 at Stelling (Kent).
40 v. William CASTLE, born Abt 1834 in Stelling (Kent), baptized 27 Jul 1834 at St Mary, Stelling (Kent), census 1841 at Stelling (Kent), census 1851 at Stelling Minnis (Kent).
41 vi. Thomasine CASTLE, born Abt 1835 in Kent, census 1841 at Stelling (Kent).
42 vii. Henry CASTLE, born Abt 1836 in Stelling (Kent), baptized 24 Jul 1836 at St Mary, Stelling (Kent), census 1841 at Stelling (Kent), census 1851 at Stelling Minnis (Kent).
43 viii. Amelia CASTLE, born Abt 1838 in Stelling (Kent), baptized 19 Aug 1838 at St Mary, Stelling (Kent), census 1841 at Stelling (Kent), census 1851 at Stelling Minnis (Kent).
44 ix. Jane Elizabeth CASTLE, born Abt 1842 in Stelling (Kent), baptized 10 Apr 1842 at St Mary, Stelling (Kent), census 1851 at Stelling Minnis (Kent).
+ 45 x. James CASTLE born Abt 1844.
18. Mark CLAYSON, born 1808 in Lyminge (Kent), baptized 13 Mar 1808 at Ss Mary & Ethelburga, Lyminge (Kent), census 1841 at The Upper Row, Elham (Kent), census 1851 at Duck Street, Elham (Kent), census 1861 at Duck Street, Elham (Kent), occupation 1841 Agricultural Labourer, occupation 1851 - 1861 Woodman, occupation 1884 Grazier, died 16 Apr 1884 in Elham (Kent) - Aged 76, buried 26 Apr 1884 at St Mary, Elham (Kent). He married Eliza FILE, 25 Dec 1837 at St Mary, Elham (Kent), born 1820 in Elham (Kent), (daughter of Thomas FILE and Ann HONEYMAN) baptized 26 Mar 1820 at St Mary, Elham (Kent), census 1841 at The Upper Row, Elham (Kent), census 1851 at Duck Street, Elham (Kent), census 1861 at Duck Street, Elham (Kent).
46 i. Henry CLAYSON, born 2nd qtr 1838 in Elham (Kent), baptized 29 Apr 1838 at St Mary, Elham (Kent), census 1841 at The Upper Row, Elham (Kent), census 1851 at Duck Street, Elham (Kent).
47 ii. Mary Ann CLAYSON, born 1839, baptized 18 Aug 1839 at St Mary, Elham (Kent).
48 iii. Eliza Ann CLAYSON, born 1840 in Elham (Kent), baptized 31 Jan 1841 at St Mary, Elham (Kent), census 1841 at The Upper Row, Elham (Kent), census 1851 at Duck Street, Elham (Kent).
49 iv. William CLAYSON, born 1843, baptized 4 Apr 1843 at St Mary, Elham (Kent), died May 1843 "Infant", buried 7 May 1843 at St Mary, Elham (Kent).
50 v. Thomas David CLAYSON, born 1845, baptized 17 May 1845 at St Mary, Elham (Kent), died May 1846 in Elham (Kent) - Aged 1, buried 10 May 1846 at St Mary, Elham (Kent).
+ 51 vi. Ann CLAYSON born 1846.
52 vii. Sarah CLAYSON, born 1849 in Elham (Kent), baptized 22 Jul 1849 at St Mary, Elham (Kent), census 1851 at Duck Street, Elham (Kent), census 1861 at Duck Street, Elham (Kent).
53 viii. Lucy CLAYSON, born 1851, baptized 1 Nov 1851 Private Baptism - St Mary, Elham (Kent), died Dec 1851 "Infant", buried 7 Dec 1851 at St Mary, Elham (Kent).
54 ix. Emily CLAYSON, born 1853 in Elham (Kent), baptized 29 May 1853 at St Mary, Elham (Kent), census 1861 at Duck Street, Elham (Kent).
55 x. Caroline CLAYSON, born 1856, baptized 29 Jun 1856 at St Mary, Elham (Kent), died Nov 1857 in Elham (Kent) - Aged 1 year & 8 months, buried 8 Nov 1857 at St Mary, Elham (Kent).
56 xi. Mark CLAYSON, born 1859 in Elham (Kent), baptized 13 Mar 1859 at St Mary, Elham (Kent), census 1861 at Duck Street, Elham (Kent).
57 vii. Maria CLAYSON, born 1860 in Elham (Kent), baptized 14 Oct 1860 at St Mary, Elham (Kent), census 1861 at Duck Street, Elham (Kent).
19. Isaac CLAYSON, born Abt 1810 in Elham (Kent), baptized 1 Jul 1810 at St Mary, Elham (Kent), census 1841 in High Street, Elham (Kent), census 1881 in High Street, Elham (Kent), census 1891 in High Street, Elham (Kent), occupation 1841 Servant, occupation 1881 Wood Dealer, occupation 1891 Carrier & Grazier, died 26 Feb 1895 in Elham (Kent). He married Mary Ann KNOWLES, 5 Jul 1835 at St Mary, Elham (Kent), born Abt 1816 in (Kent), census 1841 in High Street, Elham (Kent), died Jun 1866 in Elham (Kent) - Aged 50.
+ 58 i. Elgar CLAYSON born 26 Feb 1837.
59 ii. Isaac CLAYSON, born Abt 1838 in (Kent), census 1841 in High Street, Elham (Kent).
+ 60 iii. Thomas CLAYSON born 15 Jun 1840.
+ 61 iv. Mary Ann CLAYSON born Abt 1843.
62 v. Sophia CLAYSON, born 1845.
63 vi. Ann CLAYSON, born 1847.
64 vii. William CLAYSON, born 1849.
+ 65 viii. Joseph CLAYSON born Abt 1856.
25. Henry CLAYSON, born Abt 1823 in Elham (Kent), baptized 11 Jan 1824 at St Mary the Virgin, Elham (Kent), census 1841 at Kennett Cottages, Elham (Kent), census 1881 at Shuttesfield, Elham (Kent), occupation 1841 Agricultural Labourer, occupation 1881 Grazier - 20 acres, died Apr 1899 in Elham (Kent), buried 26 Apr 1899 at St Mary the Virgin, Elham (Kent). He married Adeline WOOLLEY, 10 Apr 1847 at St Mary the Virgin, Elham (Kent), born Abt 1829 in Elham (Kent), census 1881 at Shuttesfield, Elham (Kent).
66 i. Henry CLAYSON, born Abt 1852 in Elham (Kent), census 1881 at Shuttesfield, Elham (Kent), occupation 1881 Labourer.
67 ii. Stephen CLAYSON, born Abt 1856 in Elham (Kent), census 1881 at Shuttesfield, Elham (Kent), occupation 1881 Labourer.
68 iii. Solomon CLAYSON, born Abt 1859 in Elham (Kent), census 1881 at Shuttesfield, Elham (Kent), occupation 1881 Farm Labourer, died Dec 1881 in Elham (Kent) - Aged 22.
69 iv. Norton CLAYSON, born Abt 1862 in Elham (Kent), census 1881 at Shuttesfield, Elham (Kent), occupation 1881 Farm Labourer.
70 v. Ishmael CLAYSON, born Abt 1866 in Elham (Kent), census 1881 at Shuttesfield, Elham (Kent), occupation 1881 Farm Labourer.
71 vi. Adeline CLAYSON, born Abt 1868 in Elham (Kent), census 1881 at Shuttesfield, Elham (Kent).
72 vii. William CLAYSON, born Abt 1870 in Elham (Kent), census 1881 at Shuttesfield, Elham (Kent).
45. James CASTLE, born Abt 1844 in Stelling (Kent), baptized 23 Jun 1844 at St Mary, Stelling (Kent), census 1861 at Stelling Minnis (Kent), census 1871 at Hogben Farm, Chilham (Kent), occupation 1871 Agricultural Labourer, emigrated 1875 to South Australia (Australia), died 25 Dec 1903 in Adelaide, South Australia (Australia), buried 1903 at St Marys Cemetery, South Australia (Australia). He married (1) Emma HOARE, 12 Jun 1867 at St Laurence, Godmersham (Kent), born 1849 in Godmersham (Kent), (daughter of Henry HOARE and Sarah DODD) baptized 3 Jun 1849 at St Laurence, Godmersham (Kent), census 1871 at Hogben Farm, Chilham (Kent), emigrated 1875 to South Australia (Australia), died 30 May 1895 in Edwardstown, South Australia (Australia), buried 1895 at St Marys Cemetery, South Australia (Australia). He married (2) Emma VENNING, 3 Jul 1896 at Register Office, Adelaide, South Australia (Australia).
73 i. Elizabeth Ann CASTLE, birth name Elizabeth Ann HOARE, born 22 Mar 1867 in Godmersham (Kent), census 1871 at Hogben Farm, Chilham (Kent), emigrated 1875 to South Australia (Australia).
74 ii. Amelia Mary CASTLE, born 24 Mar 1869 in Molash (Kent), census 1871 at Hogben Farm, Chilham (Kent), emigrated 1875 to South Australia (Australia).
75 iii. James CASTLE, born 25 Mar 1871 in Chilham (Kent), census 1871 at Hogben Farm, Chilham (Kent), emigrated 1875 to South Australia (Australia).
76 iv. Harry CASTLE, born 3 May 1873 in Faversham RD (Kent), emigrated 1875 to South Australia (Australia), died Jul 1876 in Edwardstown, South Australia (Australia), buried Jul 1876 at St Marys Cemetery, South Australia (Australia).
77 v. George CASTLE, born 3 Jul 1875 in Goodwood Road, South Australia (Australia).
78 vi. Fanny CASTLE, born 15 Aug 1877 in Edwardstown, South Australia (Australia).
79 vii. Thomas CASTLE, born 19 Oct 1879 in Edwardstown, South Australia (Australia).
80 viii. Lilla CASTLE, born 27 Jan 1882 in Edwardstown, South Australia (Australia).
81 ix. Ellen Jane CASTLE, born 17 Jul 1884 in Edwardstown, South Australia (Australia).
82 x. William Henry CASTLE, born 18 Jan 1886 in Edwardstown, South Australia (Australia).
83 xi. Edward Charles CASTLE, born 9 Sep 1889 in Edwardstown, South Australia (Australia).
51. Ann CLAYSON, born Abt 1847 in Elham (Kent), census 1851 at Duck Street, Elham (Kent), emigrated 1874 to NSW (Australia), died 23 Sep 1924 at Cooper Street, Barraba, NSW (Australia) – Aged 78, buried 1924 in Barraba, NSW (Australia). She married John PATTISON, 16 Feb 1867 at St Mary, Elham (Kent), born Abt 1833 in Elham (Kent), died 2 May 1912 in Barraba, NSW (Australia), buried 3 May 1912 in Barraba, NSW (Australia). Ann & John emigrated to NSW (Australia), on the ship "Southern Belle" leaving London 16 Nov 1873 and arrived Rockhampton in Queensland 6 Mar 1874 narrowing escaping being shipwrecked .They arrived with Elgar and Frances Clayson and their six children.
85 i. John PATTISON, born 14 Jan 1868 in Elham (Kent), baptized 19 Feb 1868 at St Mary, Elham (Kent), died 1944 in Gunnedah, NSW (Australia). He married (1) Selina Catherine FORBES, 4 Mar 1889 in Barraba, NSW (Australia), born 1869 in Bundarra, NSW (Australia), died 1910 in Boggabri, NSW (Australia). He married (2) Margaret Emma NIPPERESS, 21 Feb 1921 in Boggabri, NSW (Australia), born 24 Feb 1886 in Boggabri, NSW (Australia), died 21 Feb 1967.
86 ii. Annie PATTISON, born 29 Sep 1869 in Elham (Kent), died 1945 in Newcastle, NSW (Australia). She married William MacGREGOR, 1895 in Barraba, NSW (Australia), died 12 Sep 1928 in Barraba, NSW (Australia).
87 iii. Emily PATTISON, born 31 Aug 1871 in Elham (Kent), died 18 Nov 1871 in Elham (Kent) - Aged 2 months.
88 iv. Frederick PATTISON, born 22 Jan 1873 in Elham (Kent), died 9 Dec 1873 At Sea - On board the vessel "Southern Belle" - Aged 10 months, buried 9 Dec 1873 At Sea.
89 v. Eliza PATTISON, born 1875 in Tamworth District, NSW (Australia), died May 1937 in Sydney, NSW (Australia). She married George Thomas COOKE, 1897 in Barraba, NSW (Australia), died 1929 in Manilla, NSW (Australia).
90 vi. Mark PATTISON, born 1877 in Tamworth District, NSW (Australia), died 1942 in Tamworth, NSW (Australia). He married Sarah Grace COX, 1908 in Barraba, NSW (Australia), born 1883 in Gunnedah, NSW (Australia), died 1974 in Tamworth, NSW (Australia).
91 vii. Rose PATTISON, born 29 Feb 1879 in Tamworth, NSW (Australia), died 11 Nov 1969 in Barraba, NSW (Australia), buried 12 Nov 1969 in Barraba, NSW (Australia). She married George SIMPSON, 11 Jan 1899 in Barraba, NSW (Australia), born 20 Mar 1873 in Armidale, NSW (Australia), died 17 Jan 1923 in Tamworth, NSW (Australia).
92 viii. Lily PATTISON, born 1882 in Tamworth, NSW (Australia), died 7 Nov 1977 in Barraba, NSW (Australia). She married Charles William ROBERTS, 1905 in Barraba, NSW (Australia), born 1880 in Uralla, NSW (Australia), died 14 Mar 1954 in Barraba, NSW (Australia).
93 ix. Elizabeth (Lizzie) PATTISON, born 1884 in Manilla, NSW (Australia), died 1965 in Tamworth, NSW (Australia). She married Harold GEDDES, 5 Oct 1904 in Barraba, NSW (Australia), died 1948 in Tamworth, NSW (Australia).
94 x. Lucy Jane PATTISON, born 1886 in Barraba, NSW (Australia), died 1968 in Manly, Sydney, NSW (Australia). She married Thomas Robert James OLIVER, 1906 in Barraba, NSW (Australia), born 1881 in Armidale, NSW (Australia), died 1915 in Barraba, NSW (Australia).
95 xi. MAY PATTISON, born 17 May 1888 in Barraba, NSW (Australia), died 31 Mar 1916 in Manilla, NSW (Australia). She married Ernest Alfred RUSSELL, 1914 in Barraba, NSW (Australia), born 1 Nov 1883 in Greta, NSW (Australia), died 9 Sep 1931 in Manilla, NSW (Australia).
58. Elgar CLAYSON, born 26 Feb 1837 in (Kent), baptized 12 Mar 1837 at Wesleyan Chapel, Elham (Kent), census 1841 in High Street, Elham (Kent), died 1895 in Queensland, Australia. He married Frances MARSH, 12 Oct 1856 at St Mary the Virgin, Elham (Kent), born Abt 1837, emigrated 1873 to Australia, died 1891 in Queensland, Australia - Aged 53. Elgar & Frances emigrated to Australia on the ship "Southern Belle" leaving London 16 Nov 1873 and arrived Rockhampton in Queensland 6 Mar 1874 narrowing escaping being shipwrecked .They arrived with John and Ann Pattison and their two surviving children.
96 i. Anne CLAYSON, born Dec 1856 in Elham (Kent). She married William LAWRENCE, in Australia.
97 ii. Sophia CLAYSON, born Jun 1861 in Elham (Kent).
98 iii. Mary Elizabeth CLAYSON, born Sep 1864 in Elham (Kent).
99 iv. Isaac Alfred CLAYSON, born Sep 1867 in Elham (Kent).
100 v. Amelia CLAYSON, born Jun 1869 in Elham (Kent).
101 vi. Agnes CLAYSON, born Dec 1872 in Elham (Kent).
60. Thomas CLAYSON, born 15 Jun 1840 in Elham (Kent), census 1841 in High Street, Elham (Kent), census 1871 at The Duke of York, Sandgate (Kent), census 1881 at 99 Broadway, Cheriton (Kent), census 1891 at Garden Cottages, Cheriton (Kent), occupation 1871 Innkeeper, occupation 1881 Fly Proprietor, occupation 1891 Job Master, died 4 Dec 1906 in Hythe (Kent) - Aged 66. He married Ellen Susannah FRIEND, 11 Aug 1864 at St Martin, Cheriton (Kent), born 1836 in Hythe (Kent), census 1871 at The Duke of York, Sandgate (Kent), census 1881 at 99 Broadway, Cheriton (Kent), census 1891 at Garden Cottages, Cheriton (Kent), died 1921 in Hythe (Kent) - Aged 85.
102 i. Ernest Robert CLAYSON, born 3rd qtr 1865 in Elham (Kent), census 1871 at The Duke of York, Sandgate (Kent), census 1881 at 99 Broadway, Cheriton (Kent), died 12 May 1921 in Elham (Kent). He married Fanny ELVERY, 1892.
103 ii. Herbert Friend CLAYSON, born 4th qtr 1867 in Sandgate (Kent), census 1871 at The Duke of York, Sandgate (Kent), census 1891 at Garden Cottages, Cheriton (Kent), occupation 1891 Fly Driver, died 7 Mar 1933 in Cape of Good Hope, South Africa. He married Johanna Katherine FOURIE, 1903.
104 iii. Kathleen Helen CLAYSON, born 2nd qtr 1869 in Sandgate (Kent), census 1871 at The Duke of York, Sandgate (Kent), died 1950 in Worthing (Sussex). She married Ernest LOADER, 1899.
+ 105 iv Frank CLAYSON born 1st qtr 1871.
106 v. Edith Emily CLAYSON, born 1st qtr 1873 in Sandgate (Kent), census 1881 at 99 Broadway, Cheriton (Kent).
107 vi. Louisa Susannah CLAYSON, born 1st qtr 1875 in Sandgate (Kent), census 1881 at 99 Broadway, Cheriton (Kent), died 29 May 1955 in Folkestone (Kent). She married Archibald MUNROW, 1910.
108 vii. Georgina May CLAYSON, born 3rd qtr 1878 in Sandgate (Kent), census 1881 at 99 Broadway, Cheriton (Kent), census 1891 at Garden Cottages, Cheriton (Kent), died 20 May 1962 in Folkestone (Kent). She married Albert James GRIFFITHS, 1905.
61 Mary Ann CLAYSON, born Abt 1843 in Elham (Kent), census 1881 at Kennel Cottages, Elham (Kent), census 1891 at Canterbury Road, Elham (Kent). She married Thomas PEGDEN, 25 Aug 1866 at St Mary, Elham (Kent), born Abt 1831 in Preston by Wingham (Kent), (son of William Edward PEGDEN and Sarah PETTIT) baptized 3 Sep 1831 at St Mildred, Preston by Wingham (Kent), census 1841 in Wingham Village (Kent), census 1851 in Wingham Village (Kent), census 1881 at Kennel Cottages, Elham (Kent), census 1891 at Canterbury Road, Elham (Kent), occupation 1851 Labourer, occupation 1881 - 1891 Agricultural Engine Driver.
+ 109 i. Alfred George PEGDEN born Abt 1871.
110 ii. Ellen S. PEGDEN, born Abt 1873 in Preston (Kent), census 1881 at Kennel Cottages, Elham (Kent).
111 iii. Jane Mary G. PEGDEN, born Abt 1876 in Preston (Kent), census 1881 at Kennel Cottages, Elham (Kent), census 1891 at Canterbury Road, Elham (Kent).
112 iv. William PEGDEN, born Abt 1878 in Preston (Kent), census 1881 at Kennel Cottages, Elham (Kent), census 1891 at Canterbury Road, Elham (Kent), Private Deal/1093(S), - Royal Marine Light Infantry - Engineers, died 13 Nov 1916 Somme – Aged 38, buried 1916 at Ancre British Cemetery – Beaumont - Hamel - VII.C.13. He married Gertrude Susannah BAILEY, also known as Susannah Gertrude BAILEY, 23 Apr 1898 at St Mary, Elham (Kent), born Jun 1874 in Elham (Kent), resided 1916 at "The Anchorage", 44 Invicta Road, Margate (Kent).
113 v. Winnifred PEGDEN, born Abt 1880 in Preston (Kent), census 1881 at Kennel Cottages, Elham (Kent), census 1891 at Canterbury Road, Elham (Kent).
114 vi. Michael PEGDEN, born Abt 1882 in Elham (Kent), census 1891 at Canterbury Road, Elham (Kent).
115 vii. Austin PEGDEN, born Jun 1883 in Elham (Kent), census 1891 at Canterbury Road, Elham (Kent), Enlisted in Canterbury - Private 59713 - 1st Btn, Northamptonshire Regiment, died 29 Oct 1918 Killed in Action - Aged 35, buried at Crossroads Cemetery - Fontaine au Bois (Grave II.G.25). He married Alice Annie M. TOAT, 6 Dec 1909 at St Mary the Virgin, Elham (Kent).
65. Joseph CLAYSON, born Abt 1856 in Elham (Kent), census 1881 in High Street, Elham (Kent), census 1891 in High Street, Elham (Kent), census 1901 at 2 Park Lane, Elham (Kent), occupation 1891 Assistant to Father - Carrier & Grazier, occupation 1901 Agricultural Mechanic. He married Mary BUSHELL, 14 Apr 1879 at St John the Baptist, Barham (Kent), born Abt 1856 in Denton (Kent), census 1881 in High Street, Elham (Kent), census 1891 at High Street, Elham (Kent), census 1901 at 2 Park Lane, Elham (Kent).
+ 116 i. Edith Mary CLAYSON born Abt 1880.
117 ii. Nellie CLAYSON, born Abt 1883 in Elham (Kent), census 1891 in High Street, Elham (Kent).
118 iii. Alfred CLAYSON, born Abt 1884 in Elham (Kent), census 1891 in High Street, Elham (Kent).
119 iv. William Isaac CLAYSON, born Jun 1886 in Elham (Kent), census 1891 in High Street, Elham (Kent), census 1901 at 2 Park Lane, Elham (Kent), 7021, Private - 25th Btn - Middlesex Regiment, died 8 Jun 1919 As a result of wounds - Aged 33, buried 1919 at St Martin, Cheriton, Folkestone (Kent). He married Esther WISE, 29 Dec 1913 at St Martin, Cheriton (Kent), resided 1919 at 140 High Street, Cheriton (Kent).
120 v. George CLAYSON, born 1890 in Elham (Kent), census 1891 in High Street, Elham (Kent), census 1901 at 2 Park Lane, Elham (Kent).
121 vi. Sophia A. CLAYSON, born Abt 1892 in Elham (Kent), census 1901 at 2 Park Lane, Elham (Kent).
122 vii. Joseph CLAYSON, born Abt 1893 in Elham (Kent), census 1901 at 2 Park Lane, Elham (Kent).
123 viii. Harry CLAYSON, born Abt 1898 in Elham (Kent), census 1901 at 2 Park Lane, Elham (Kent).
124 ix. Mildred A. CLAYSON, born 1900 in Elham (Kent), census 1901 at 2 Park Lane, Elham (Kent).
105.Frank CLAYSON, born 1st qtr 1871 in Sandgate (Kent), census 1871 at The Duke of York, Sandgate (Kent), census 1881 at 99 Broadway, Cheriton (Kent), census 1891 at Garden Cottages, Cheriton (Kent), census 1901 at 78 The Bayle, Folkestone (Kent), census 1911 at Red Lion Inn, Bridge (Kent), occupation 1891 Fly Driver, occupation 1901 Licenced Victualler & Omnibus Driver, occupation 1911 Innkeeper, resided 1913 at Rose & Crown PH, Elham (Kent), resided 1918 at The Surrey Arms, East Croydon (Surrey), died 16 Oct 1935 in Surrey. He married Frederica (Freda) BUTCHER, 21 Jun 1897 at St John the Mariner, Dover (Kent), born 3rd qtr 1872 in Sandgate (Kent), (daughter of George BUTCHER and Sarah BERESFORD) census 1881 at Government Building, Folkestone (Kent), census 1901 at 78 The Bayle, Folkestone (Kent), census 1911 at Red Lion Inn, Bridge (Kent), resided 1918 at The Surrey Arms, East Croydon (Surrey), died 1st qtr 1939 in Romford (Essex) - Aged 66.
126 ii. Philip Arthur CLAYSON, born 4th qtr 1899 in Folkestone (Kent), census 1901 at 78 The Bayle, Folkestone (Kent), census 1911 at Red Lion Inn, Bridge (Kent), died 16 Apr 1962 in Bournemouth (Hants). He married Elsie Ada CLAYDON, 1927 in Croydon (Surrey).
127 ii. Thomas Herbert Friend CLAYSON, born 8 Mar 1902 in Folkestone (Kent), census 1911 at Red Lion Inn, Bridge (Kent), died Mar 1978 in Sussex.
128 ii. Linda Eveline CLAYSON, born 16 Dec 1904 in Bridge (Kent), census 1911 at Red Lion Inn, Bridge (Kent), died Jun 1987 in Crawley (West Sussex). She married Harold James STOCKS, 1927 in Croydon (Surrey).
129 ii. Walter Frederick CLAYSON, born 2nd qtr 1905 in Bridge (Kent), census 1911 at Red Lion Inn, Bridge (Kent). He married Kathleen Mary BUTCHER, 1932 in Battle (East Sussex).
130 ii. Frank CLAYSON, born 8 Nov 1906 in Bridge (Kent), census 1911 at Red Lion Inn, Bridge (Kent), died 1981 in Berkshire. He married Maud McCARTHY, 1941 in Poplar (Middx).
131 ii. Jack CLAYSON, born 20 Apr 1909 in Bridge (Kent), census 1911 at Red Lion Inn, Bridge (Kent), died 1996 in Sutton (Surrey).
109. Alfred George PEGDEN, born Abt 1871 in Preston (Kent), census 1881 at Kennel Cottages, Elham (Kent), census 1891 at Canterbury Road, Elham (Kent), occupation 1891 Farm Labourer. He married Sophia Anne BAILEY, 24 Oct 1896 at St Mary, Elham (Kent).
132 i. Sidney Thomas PEGDEN, born Dec 1897 in Elham (Kent), Private 270372 – 10th Btn - The Buffs (East Kent Regiment), died 6 Nov 1918 Pas de Calais, France - Aged 21, buried 1918 at Terlincthun British Cemetery, Wimille - X.B.30.
116. Edith Mary CLAYSON, born Abt 1880 in Elham (Kent), census 1881 in High Street, Elham (Kent), census 1891 in High Street, Elham (Kent), census 1901 at 2 Park Lane, Elham (Kent).
133 i. Dorothy M. CLAYSON, born 1900 in Elham (Kent), census 1901 at 2 Park Lane, Elham (Kent).
My thanks to Joan Holmes for her information on the members of the CLAYSON family who made a new life in Australia.
My thanks to Karen Richards for pointing out an omission.
Thanks also to Duane Spicer for his invaluable assistance with this research.
A special thanks to Brenda Hopkin for alerting me to an error which has now been corrected.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v.


By: Phyllis Severance Phillips Esq.
Whether a genuine issue of material fact exists as to the applicability of the exclusions from workers’ compensation coverage provided by Vermont’s statute as to casual employment, 21 V.S.A. §601(14)(A), farm employment, 21 V.S.A. §601(14)(C), and/or service in or about a private dwelling, 21 V.S.A. §601(14)(E).
As a preliminary procedural issue, Defendants contend that Claimant failed to provide a separate statement of contested facts in response to Defendants’ Motion for Summary Judgment, as required by Vermont Rule of Civil Procedure 56(c)(2). As a consequence, Defendants argue that Claimant must be deemed to have admitted the assertions contained in Defendants’ Statement of Material Facts.
shall include with [its] affidavits and memorandum . . . a separate, short, and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried. All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.
The Vermont Supreme Court recently addressed the specific requirements of V.R.C.P. 56(c)(2) in Webb v. LeClair, 2007 Vt. 65 (Sept. Term 2006). The defendant in that case had filed a motion for summary judgment supported with a statement of undisputed facts as required by V.R.C.P. 56(c)(2). The plaintiff failed to file a separate statement of contested facts in response. Instead, she filed a lengthy memorandum of law, with accompanying exhibits, in which she took issue with at least some of the facts proffered by the defendant. The trial court determined that plaintiff’s filing did not comply with the requirements of the rule and therefore admitted all of the facts as proffered by the defendant as undisputed.
On appeal, the plaintiff argued that her “stylistic decision” to present the facts she was contesting in narrative form rather than in a separate statement constituted sufficient compliance with the requirements of V.R.C.P. 56(c)(2). The Vermont Supreme Court disagreed, and upheld the trial court’s determination. It noted that the intent of the rule’s requirement was to focus summary judgment arguments and allow the fact finder to more readily determine the material facts at issue, without having to sift through the pleadings to discern what is disputed and what is not. Thus it held that the trial court correctly took the defendant’s submitted facts, which were supported adequately and appropriately by the record, as true.
In the current claim, Claimant filed a brief legal memorandum in opposition to Defendants’ Motion for Summary Judgment, in which she contested the legal import of some of the facts proffered by Defendants but did not dispute them per se. Her supporting affidavit alleged her lack of personal knowledge as to certain facts but again, did not dispute them per se. She did not file any separate statement of disputed material facts. On this record, and given the clear requirements of V.R.C.P. 56(c)(2), I must conclude that the facts as proffered by Defendants and supported by the record are true.
1. At all material times, including the period between June 9, 2004 and January 21, 2005 Defendants were the owners of real property, consisting of a dwelling house and two barns on 20 acres of land located in Moretown, Vermont (the “Moretown property”). Defendants had moved to the property in February 2004 and used it as their primary residence.
2. Defendant Ann Johnston owned a horse, which she wanted to relocate to the Moretown property for easy access and riding.
3. In the spring of 2004, Defendant Johnston became acquainted with Claimant. Upon learning that Claimant was an equestrian with experience in caring for horses, Defendant Johnston discussed her goal of relocating her horse to the Moretown property.
4. On June 9, 2004 Defendants and Claimant entered into a written agreement which provided for Claimant: (1) to reside with Defendants at the Moretown property until July 1, 2005 in exchange for bartered rent; and (2) to perform both skilled equestrian work and unskilled labor, a portion of the compensation for which would be applied to the bartered rent. The agreement also provided for Claimant to board her own horse at the Moretown property beginning in August 2004.
5. The June 9, 2004 agreement referred to the Moretown property as “Karma Farm” and stated the goal of creating a small working horse farm on the property. It reflected the parties’ plan to bring two horses to the Moretown property, one belonging to Claimant and one belonging to Defendant Johnston. The agreement did not include any other provisions for bringing additional horses to the property.
6. The June 9, 2004 agreement provided that Claimant would do “all the necessary preparation and maintenance work to keep the two horses on the property healthy and happy and safe.” The agreement provided that Claimant would be compensated at the rate of $35 per hour for skilled equestrian work and $10 per hour for unskilled labor. The compensation she earned at these rates was to be applied both to her bartered rent obligation, which the parties valued at $500 per month, and beginning in August 2004, to her bartered horse board obligation as well, valued at $200 per month.
7. Neither Claimant nor Defendants ever brought any horses to the Moretown property.
8. By September 2004 Claimant was no longer paying rent and had ceased doing the work envisioned by the June 9, 2004 agreement.
9. In October 2004 the parties participated in a mediation to resolve a number of disputes that had arisen between them. The mediation culminated in a new agreement, which the parties executed on October 30, 2004.
10. Under the terms of the October 30, 2004 agreement, (1) Claimant agreed to move from the Moretown property within thirty days of signing a new lease elsewhere, but no later than December 31, 2004; (2) the parties all agreed to maintain their own property and casualty insurance; and (3) Defendants agreed to rent Claimant the barn on the property until June 30, 2005 provided that Claimant signed a lease containing certain specific conditions.
11. Claimant resided at the Moretown property and performed work for Defendants pursuant to the June 9, 2004 agreement from that date until no later than October 30, 2004.
12. After signing the October 30, 2004 agreement Claimant continued to reside at the Moretown property until on or about January 21, 2005. Defendants continued to use the Moretown property as their primary residence during this period as well.
13. After October 30, 2004 Claimant and Defendants had few verbal communications, and had no communications about additional work, if any, to be performed by Claimant on the property.
14. During the period from June 9, 2004 until January 21, 2005, Defendants never operated any business on or from the Moretown property, including any business involving or relating in any way to Claimant, to horses, or to any other matter contemplated by the June 9, 2004 agreement. At all material times during this time frame, Defendant Ann Johnston was a lawyer working towards satisfying her attorney licensing requirements in Vermont. Defendant Charlotte Rancourt was either unemployed, working at temporary retail jobs and/or seeking employment in her professional field of computer hardware and software market analysis.
15. Claimant resided at the Moretown property for less than seven months. Under the terms of the June 9, 2004 agreement, the total value of the bartered rent Claimant received from Defendants during this period was $3,500 ($500 per month times seven months).
16. In addition to the bartered rent referred to above, Defendants also paid Claimant $1,786 in monetary compensation for work performed pursuant to the June 9, 2004 agreement.
17. Defendants also paid Claimant $400 on August 28, 2004 because they orally had agreed to pay Claimant this amount to exercise Defendant Johnston’s horse during that month if it had been brought to the Moretown property.
18. Defendants also paid Claimant $2,550 on October 30, 2004 in accordance with the terms of the October 30, 2004 agreement.
19. In all, the total compensation Defendants paid to Claimant for work performed at the Moretown property was $8,236.
20. During calendar years 2004 and 2005 Defendants did not pay any wages, either to themselves or to any other person, aside from the $8,236 paid to Claimant from June 9, 2004 through January 21, 2005.
21. On January 5, 2005 Claimant filed a wage claim against Defendants with the Vermont Department of Labor & Industry (Claim #1589), in which she alleged that Defendants owed her unpaid wages totaling $11,840 for the period from September 1, 2004 through January 1, 2005. On June 16, 2006 the Vermont Department of Labor denied Claimant’s wage claim in its entirety.
22. On January 18, 2005 Claimant and Defendants were parties in a civil trial in the matter of Johnston and Rancourt v. Artemis, Washington Superior Court, Docket No. 708-12-04Wncv, which resulted in a decision issued on January 21, 2005. In this decision, the Superior Court granted Defendants’ request to evict Claimant from the Moretown property. The Court also determined that the $2,550 paid by Defendants to Claimant under the terms of the October 30, 2004 agreement amounted to an accord and satisfaction. This had the legal effect of discharging all of the parties’ obligations under the June 9, 2004 agreement and substituting the terms of the October 30, 2004 agreement instead. The Vermont Supreme Court affirmed the Superior Court’s decision in its entirety on June 22, 2006.
23. On January 5, 2005 Claimant filed a Notice of Injury and Claim for Compensation with the Vermont Department of Labor & Industry in which she alleged that she suffered work-related injuries in the course of her employment for Defendants on November 30, 2004, December 25, 2004, January 2, 2005 and January 5, 2005. Claimant alleged that on each of these dates she slipped and fell on the ice while shoveling snow from a driveway between the dwelling house and the barn at the Moretown property.
24. In conjunction with the June 9, 2004 agreement Defendants purchased a workers’ compensation insurance policy to cover Claimant’s employment through Hartford Underwriters Insurance Company, policy number 6S6OUB 3389B437, with an original policy period from August 1, 2004 through August 1, 2005.
25. After executing the October 30, 2004 agreement, Defendants stopped paying the premium on this workers’ compensation policy. The policy was canceled for non-payment of premium effective November 25, 2004.
26. In addition to the workers’ compensation insurance policy referred to above, Defendants also had a separate farm owner insurance policy through American Bankers Insurance Company of Florida, policy number FSL 4000609, effective November 9, 2004 through November 9, 2005. This policy provided coverage for any farm activities associated with Claimant’s use of the barn at the Moretown property in accordance with the October 30, 2004 mediation agreement. This policy did not include any workers’ compensation coverage.
27. Defendants did not have workers’ compensation insurance in effect on any of the injury dates alleged by Claimant and had not notified the Commissioner of Labor & Industry that they intended to be included within the provisions of Vermont’s workers’ compensation laws on any of those dates.
1. In order to prevail on a motion for summary judgment, the moving party must show that there exist no genuine issues of material fact, such that it is entitled to judgment in its favor as a matter of law. See Samlid Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22, 25 (1996). In ruling on such a motion, the non-moving party is entitled to the benefit of all reasonable doubts and inferences. See State v. Delaney, 157 Vt. 247, 252 (1991); Toys, Inc. v. F.M. Burlington Co., 155 Vt. 44 (1990). Summary judgment is appropriate only when the facts in question are clear, undisputed or unrefuted. State v. Heritage Realty of Vermont, 137 Vt. 425 (1979).
2. In the current claim, Defendants’ motion for summary judgment is based on the applicability of any one of three exclusions to coverage under Vermont’s workers’ compensation act – the “farm employment” exclusion, 21 V.S.A. §601(14)(C); the “private dwelling” exclusion, 21 V.S.A. §601(14)(E); and/or the “casual work” exclusion, 21 V.S.A. §601(14)(A).
(C) An individual engaged in agriculture or farm employment for an employer whose aggregate payroll is less than $10,000.00 in a calendar year, unless the employer notifies the commissioner that the employer wishes to be included within the provisions of this chapter; the existence of a contract of insurance shall be considered sufficient notice.
4. Employment involving activities such as raising, training or selling horses falls within the confines of “farm employment.” See, e.g., Leppert v. Parker, 218 Neb. 63, 352 N.W.2d 180 (1984) (holding that the duties of a horse trainer fall within the statutory exception); Wolf v. Foxhall Village Stables, 63 A.D. 753, 404 N.Y.S.2d 721 (1978) (holding that the business of raising and selling horses constituted a farm within the meaning of the workers’ compensation law).
5. In the current claim, the undisputed facts establish that Defendants were not engaged in operating a farm on any of the injury dates alleged by Claimant. Although this may have been what the parties contemplated when they executed the June 9, 2004 employment agreement, this dream never came to fruition. No horses were ever brought to the property and no work towards making the Moretown property a working horse farm was being performed after October 30, 2004. Under these circumstances, it would be stretching reality to conclude that Defendants were actively engaged in any agricultural or farm pursuits such that Claimant could be deemed to be their farm employee on the dates when she was injured.
6. Even assuming that Defendants were operating a farm, furthermore, and that Claimant was their farm employee, it is undisputed that their aggregate payroll for calendar years 2004 and/or 2005 was less than the $10,000 minimum established by the statute in order for mandatory workers’ compensation coverage to be imposed. It also is undisputed that Defendants had canceled their workers’ compensation insurance coverage prior to the dates of Claimant’s alleged injuries, and had not otherwise notified the Commissioner that they desired to be included voluntarily within the provisions of the Act.
7. The undisputed facts establish, therefore, that Defendants were not operating a farm on the dates of injury Claimant alleged. Even if they were, this would not avail Claimant in any way, as the application of 21 V.S.A. §601(14)(C) would exclude her from workers’ compensation coverage in any event.
(E) Any individual engaged in any type of service in or about a private dwelling unless the employer notifies the commissioner that the employer wishes to be included within the provisions of this chapter; the existence of a contract of insurance shall be considered sufficient notice.
9. It is undisputed that the Moretown property was Defendants’ primary residence. If they were not operating a farm there on the dates Claimant was injured, such that she was not engaged in farm employment, then her activities on those dates – shoveling snow from Defendants’ driveway – certainly fall under the category of “service in or about a private dwelling.” Were Defendants to have in effect a workers’ compensation insurance policy on the relevant dates of injury, therefore, Claimant might be covered.
10. The undisputed facts establish that Defendants did not have a contract of insurance for workers’ compensation coverage in effect as of the dates Claimant was injured. Thus, the application of 21 V.S.A. §601(14)(E) excludes Claimant from workers’ compensation coverage.
11. In sum, therefore, the undisputed facts establish that Claimant was excluded from workers’ compensation coverage under either 21 V.S.A. §601(14)(C) or under 21 V.S.A. §601(14)(E). Either Claimant was engaged in farm employment at the Moretown property on the dates she was injured, or she was engaged in service in or about Defendants’ private dwelling there. In either case, Defendants were not required to maintain workers’ compensation coverage for her activities, and the undisputed facts establish that they opted not to do so voluntarily.
13. No genuine issues of material fact exist as to Claimant’s exclusion from workers’ compensation coverage relating to her activities at the Moretown property on the dates of injury she alleged. Defendants are entitled to summary judgment as a matter of law.
Defendant’s motion for summary judgment is GRANTED. Claimant’s claim for workers’ compensation benefits arising out of her alleged injuries on November 25, 2004, December 25, 2004, January 2, 2005 and/or January 5, 2005 is DISMISSED.
Dated at Montpelier, Vermont this 12th day of September 2007.
1 Under these circumstances, there is no need to reach the possible application of the “casual work” exclusion, 21 V.S.A. §601(14)(A).