Scottish Court of Session Decisions

By the Act 43 and 44 Vict. cap 42, section 4 (The Employers Liability Act 1880) it is enacted—“An action for the recovery under this Act of compensation for an injury shall not be maintainable unless notice that injury has been sustained is given within six weeks … from the occurrence of the accident causing the injury.”

By section 7 it is enacted—“Notice in respect of an injury under this Act shall give the name and address of the person injured, and shall state in ordinary language the cause of the injury and the date at which it was sustained, and shall be served on the employer, or if there is more than one employer, upon one of such employers…. A notice under this section shall not be deemed invalid by reason of any defect or inaccuracy therein, unless the judge who tries the action arising from the injury mentioned in the notice shall be of opinion that the defendant in the action is prejudiced in his defence by such defect or inaccuracy, and that the defect or inaccuracy was for the purpose of misleading. ”

On 31st October 1883, Adam Thomson, while in the employment of the defenders, John B. Robertson & Company, manufacturing chemists and artificial manure manufacturers at Dunbar, fell from a wooden platform on which he was standing for the purpose of making some repairs on the pipes connected with some tar tubes at the defenders' works, and fractured his lower jaw in two places. He was taken to the Edinburgh Royal Infirmary, where he remained for eight weeks. On the 5th December 1883 his wife sent the following letter to Mr Robertson, the sole partner of the defenders' firm:—

“ Bone Mills, Dunbar, 5 th December 1883.

Dear Sir,—I find I will need some more money, and will you please oblidge me with ten shillings. It is now five weeks since Adam got his accident. His jaw is so badly smashed that he will never be the same man agin. Adam has been advised to get damages from you. James Hill got some money when he got hurt, and as the Insuarence Company paid him, I do not see why Adam, who has been so badly hurt, should not get some too.—Yours respectfully, Janet Thomson.”

Thereafter Thomson raised this action of damages under the Employers Liability Act 1880 for the sum of £100 as compensation for his injuries. He relied on the letter just quoted as a notice.

The defenders, inter alia, pleaded—“(1) The pursuer not having given the requisite notice under the Employers Liability Act, the action is incompetent under said Act, and ought to be dismissed.”

The Sheriff-Substitute ( Sherriff) sustained this plea and dismissed the action.

“ Note.—This is an action founded only on the Employers Liability Act, and under the fourth section it is provided that such an action ‘shall not be maintainable unless notice that injury has been sustained is given within six “weeks” from the occurrence of the accident causing the injury.’ By section seventh it is provided that the ‘notice’ shall give the name and address of the person injured, and shall state in ordinary language the cause of the injury and the date at which it was sustained. It appears that the notice must be in writing, and there are special provisions as to the manner of serving it and as to the party on whom it may be served.

The letter of date 5th December 1883, addressed by the pursuer's wife to the defender, is put into process as the notice given in terms of the statute, but what is required in a ‘notice’ is not contained in that letter. It may be that the date of a letter written by the pursuer's wife may be held to be the address of the pursuer, but the Sheriff-Substitute is inclined to think that what should be given is a statement of where the injured person is to be found, in order that the party sought to be made liable in damages may have an opportunity of procuring evidence as to the condition of the injured person. In this case, as it appears from the condescendence, the pursuer was at the date of the notice an inmate in the Royal Infirmary in Edinburgh. The pursuer's name is not stated. No doubt the defender would quite well understand who is referred to as ‘Adam,’ but that is only a part of the pursuer's name. Further, the cause of the injury is not stated. The result of the injury is very well stated, viz., that the poor man's jaw was so badly smashed ‘that he will never be the same man again,’ but that is not a statement of the cause of the injury. The letter goes on to state that ‘Adam’ has been advised to claim damages, but

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there is no statement of any intention or resolution to do so. The date of the injury may be held to be sufficiently given in the statement that at the date of the letter (5th Dec. 1883), ‘It is now five weeks since Adam got his accident’ (31st Oct.).

By the last subsection of section 7 of the statute there are provisions that a notice shall not be deemed invalid by reason of any defect or inaccuracy therein. That is a wise and fair provision for the protection of illiterate people, but though any defect or inaccuracy, so long as there does not appear to be any fraudulent intention, will not render a notice invalid, the Sheriff-Substitute is humbly of opinion that the writing founded on as notice must show that it was written with the view of giving notice of an injury and of an action. Now, the letter No. 6 of process is certainly not a letter written for that purpose. It is an intelligible and well-written letter. The object is to crave a payment of ten shillings; that is clearly all the writer had in view, and it cannot be fairly said to be a notice under the statute.

Taking that view of the letter, the Sheriff-Substitute must sustain the first plea-in-law stated for the defender.”

The pursuer appealed to the Court of Session, and argued—(1) The notice need not necessarily be in writing. The reference to written notice in the Employers Liability Act is not imperative but merely directory. (2) The notice contained in the letter of 5th December was quite sufficient to satisfy the terms of the Act. This was an Act to enable illiterate people to obtain equitable compensation for injuries received in the course of their work, and must be construed in a liberal spirit. The English cases on the subject did not invalidate a notice when the date or cause of accident were amissing. The only object of the notice was to give notice of injury, and that was amply done in the letter. (3) In any view, the Sheriff should not have sustained the objection at this stage; he should have allowed a proof, as was contemplated by the last clause of section 7 ( supra cit.).

The defenders, in supporting the interlocutor of the Sheriff-Substitute, cited Moyle v. Jenkins, December 6, 1881, L.R., 8 Q.B. Div. 116; Keen v. The Millwall Dock Company, March 15, 1882, L.R., 8 Q.B. Div. 482.

At advising—