Scottish Court of Session Decisions

On 3d November 1886 John Trail, a mason, while in the employment of the defenders, who were builders in Edinburgh, received personal injuries owing to the fall of a gable, from which he died. His widow and children raised an action of damages against his employers, which was laid both at common law and under the Employers Liability Act 1880. They gave no notice of the action in terms of the Act, and the defenders, relying on this, pleaded—(1) The pursuers having failed to give notice of claim to the defenders in terms of the Employers Liability Act 1880, are not entitled to maintain the action so far as laid under that Act.” The pursuers stated that “the defender William Kelman was present when the said accident occurred, and was informed of the injuries the deceased sustained.”

The Sheriff-Substitute ( Rutherfurd) pronounced this interlocutor—“Finds that notice as required by the Employers Liability Act 1880 was not given to the defenders of the death of the late John Trail within six weeks thereafter, and that there was no reasonable excuse for the want of such notice: Therefore sustains the defenders' first plea-in-law, and finds that the action is incompetent in so far as laid upon the said Act:” Quoad ultra he allowed the parties a proof of their averments.

“ Note.—The only explanation given by the pursuers on record (Cond., Art. 4 ad flnein) of their failure to comply with the requirement of the statute of 1880 with regard to notice is that the defender William Kelman was present when the accident occurred, and was informed of the injuries sustained by the deceased John Trail.

The Sheriff-Substitute is unable to hold that there is in terms of the fourth section of the Act a ‘reasonable excuse’ for the want of the notice. It is not alleged that the pursuers were unable from any cause to give the statutory notice to the defenders, and the Sheriff-Substitute thinks that the words ‘reasonable excuse’ apply only to those cases in which the relatives of the deceased party have been prevented giving notice by force of circumstances. The Sheriff-Substitute has therefore sustained the defenders' first plea-in-law.”

The pursuers appealed to the Court of Session for jury-trial, and proposed an issue in which damages were laid both at common law and under the statute. They moved for approval of the issue, and that the case should be remitted to the Lord Ordinary for trial. The respondents objected to the issue under the statute in respect that no notice had been given of the claim in terms of the fourth section of the statute, which enacts—“(4) 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, and the action is commenced within six months from the occurrence of the accident causing the injury, or in case of death within twelve months from the time of death; provided always that in case of death the want of such notice shall be no bar to the maintenance of such action if the judge shall be of opinion that there was reasonable excuse for such want of notice.” Here there had been no written notice— Moyle v. Jenkins, December 6, 1881, L.R., 8 QBD 116. In fact there had been no notice given at all. This statutory defect could not be cured by the “reasonable excuse” put forward by the appellants, which was merely that one of the defenders had been present when the accident occurred.— M'Donagh v. P. & W. M'Lellan, June 18, 1886, 13 R. 1000; M'Covan v. Tancred, Arrol, & Co., June 26, 1886, 13 R. 1003.

The appellants replied—There was here reasonable excuse for the want of notice within the rational meaning of the statute. The whole purpose of the statute was attained by one of the defenders being present when the accident occurred. But in any case, on a sound construction of the latter part of the 4th section, the question must be determined by the Judge at the trial of the case. The 7th section, too, provided that “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.” This section showed that the purpose of the notice was just to give the master an opportunity of investigating the accident and preparing for his defence.

Page: 9↓

At advising—