Scottish Court of Session Decisions

Mrs Ellen Connolly, widow of Thomas Connolly, for herself and as tutor of her pupil sons, Thomas and Peter, and Ellen Connolly, a minor child of Thomas Connolly, raised an action in the Sheriff Court at Edinburgh against Young's Paraffin Light and Mineral Oil Company, Limited, for payment of £500, as damages for the death of the said Thomas Connolly, who had been employed in the defenders' works at Addiewell.

The action was laid both at common law and under the Employers Liability Act.

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Intimation of a claim under the Act had been given on 23rd July 1894.

The pursuers averred—“(Cond. 2) About 10 o'clock in the morning of 31st May last, a fire broke out in the vitriol chamber of defenders’ said works, in a section thereof where a large quantity of nitre used in the manufacture of vitriol was kept stored in bags. The deceased Thomas Connolly was ordered to assist in the work of extinguishing the said fire, and removing the debris caused thereby. The said work was carried on under the direct superintendence of the defenders’ manager William M'Hutcheon, and the deceased Thomas Connolly was one of a squad of which Adam Brown was the foreman, and was subject to his orders. The nitre was smouldering and generating poisonous gases, from the effects of inhaling which the said Thomas Connolly became so ill that he died about 1·30 a.m. the following morning. (Cond. 3) The death of the said Thomas Connolly was caused through the gross fault and negligence of the defenders, or of those for whom they are responsible. The said William M'Hutcheon was the defenders’ manager, who had superintendence entrusted to him under them, and to whose orders and directions the workmen were bound to conform. He took an active superintendence of the operations necessitated by said fire, and it was his duty to take proper precautions for the safety of the men working in connection with said operations…. (Cond. 5) The said claim was not intimated to the defenders within six weeks after the death of the said Thomas Connolly as required by the Act, as the pursuers, in the state of mind in which they were through grief at the death of the said Thomas Connolly, overlooked the necessity of having the circumstances of his death investigated. When they did give instructions to that effect, much difficulty was found in ascertaining the facts. It was found impossible to obtain any evidence on the subject until after the expiry of the statutory period.”

The defenders pleaded—“(1) The action is irrelevant. (2) The action is incompetent under the Employers Liability Act, in respect (1) no notice was given under said Act, and no valid excuse for want of notice is averred.” …

By section 4 of the Employers Liability Act 1880 (43 and 44 Vict. c. 42) 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, 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.”

On 15th October 1894 the Sheriff-Substitute ( Hamilton) pronounced the following interlocutor: — “Repels the first plea-inlaw for the defenders, allows the pursuers a proof of their averments on record, and to the defenders a conjunct probation.

“ Note.—There might have been a fuller statement as to the position occupied by Mr M'Hutcheon, but even as the record stands, the Sheriff —Substitute thinks that the action is relevant both at common law and under the Employers Liability Act. It does not seem to the Sheriff—Substitute that the question whether the pursuers had ‘reasonable excuse’ for not giving notice in terms of the 4th section of the Act can be decided at this stage.”

The pursuers appealed for jury trial.

Argued for defenders—The action was irrelevant. There was no issuable matter stated on record upon which a case at common law could be founded. The manager was a fellow-servant of the deceased. The latter must also he presumed to have had a knowledge of the nature of the fumes, and to have taken the risk when he assisted in putting out the fire. The doctor certified that death was due to natural causes. There was no case under the statute. There was here a general order given, but no special order given to the workman to be specially obeyed— Flynn v M'Gaw, February 21, 1891, 18 R., opinion of Lord Young, p. 557. In terms of the statute, notice to the employers required to be given within six weeks of the death. No such notice had been given within the statutory period, and no reasonable excuse for such want of notice was made on record. Any pursuer in cases of this kind might make the allegation that through grief he had overlooked the necessity of sending the notice. That could not be accepted as a sufficient excuse. The action was therefor incompetent under the statute.

Argued for pursuers — The action was relevant. The manager in this case was not a fellow-servant of the deceased, but was the representative of the company. Where a company delegated the performance of its ordinary duties as an employer towards its servants to a manager, it was liable for any breach of these duties— Wright v. Dunlop & Company, February 14, 1893, 20 R. 363; Murphy v. Smith, May 31, 1865, 19 Scott's Rep. C.B. (new series), 361. There was reasonable excuse for not having given the notice within the statutory period. The cause of death was obscure, and not arising, as in most of cases of this kind, from external causes. Inquiry was therefore required, and the widow should not be held to be under the necessity of giving notice before she had made up her mind to proceed with the action. At all events, the decision of the question whether or not reasonable notice was given should be postponed for the decision of the judge at the trial —Trail v. Kelman & Company, October 22,1887, 15 R. 4; M'Leod v. Pirie, February 15, 1893, 20 R. 381.

At advising—