Scottish Court of Session Decisions

On 7th May 1885 John M'Donagh was injured in the left foot by the fall of a column in the raising of which for the support of the Forth Bridge he was employed by P. & W. Maclellan, engineers in Glasgow. The injury took place through the fault, as was alleged in this action, of his employers. A notice of injury under the Employers Liability Act 1880 was posted at Edinburgh by his agent on the afternoon of 18th June, addressed to the defenders at their office in Glasgow. It was posted in time to arrive at the Glasgow post-office on the evening of the 18th, but not so that it would be delivered that night in the ordinary course of post. The Act provides (sec. 4) that an action for recovery of compensation under it “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;” and further (sec. 7) that the notice “if served by post shall be deemed to have been served at the time when a letter containing the same would be delivered in the ordinary course of post.” The period of forty-two days from 7th May, excluding in the reckoning the 7th May itself, expired on 18th May, that day being counted in the reckoning. The 19th, on which the notice would be delivered in ordinary course, was on this principle of computation forty-three days from the day of accident.

This action was subsequently raised. It was laid at common law, and alternatively under the Employers Liability Act, and was founded on averments that the accident arose from fault for which the defenders were responsible.

The defenders pleaded that the action could not be maintained under the Employers Liability Act in respect that the pursuer had failed to give notice in terms thereof. They also pleaded—“The pursuer having, in consideration of the sum of £8 paid him by the defenders, granted a discharge of all claims against them in respect of his injuries, is barred from insisting in his present claim, and the action should be dismissed with expenses. The pursuer not having been injured through any fault of the defenders, or of those for whom they are responsible, the defenders should be assoilzied.” In support of the plea that pursuer had discharged his claim they produced this receipt—“Received from P. & W. Maclellan the sum of £8 as full compensation for any claim for damages on account of the accident to me in which my foot was injured whilst in their employment at the Forth Bridge Works, South Queensferry, in May last.”

As to the alleged discharge the following facts appeared:—The pursuer had had several interviews with W. T. Maclellan, a partner in defenders' firm, and the question of settling the case had been discussed by them. The pursuer deponed that at one of these interviews he had asked for £50 and a promise of work, while the defenders deponed that while he at first asked £20, £8 was the sum agreed upon, and that they were to pay it out of charity. A day or two after the sum was discussed the parties met at the gate-house of the works, and the defenders laid before pursuer for signature the receipt above quoted. The pursuer signed it (the gatekeeper signing it as a witness) and received the £8, but deponed that he had not understood the true nature of the document, and imagined that it was part compensation. He swore that it was not read to him.

Mr Maclellan's evidence was that it was read over to the pursuer. The gatekeeper swore that he had not heard it read. The defenders also led evidence to show that they promised him work in watching.

The Sheriff-Substitute ( Guthrie) pronounced this interlocutor—“Finds that the notice of action under the Employers Liability Act was not, in the meaning of the Act, served within

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six weeks from the occurrence of the accident causing the injury condescended on: Finds therefore that this action is not maintainable under the Act, and to that extent and effect dismisses it: Finds, separatim, that by the document the pursuer, on October 12, 1885, discharged his claims against the defenders for compensation, whether under the said Act or at common law, for the said accident: Therefore assoilzies the defenders, and decerns.

“ Note.—With regard to notice it is enough to refer to the words of the Act, section 7, providing that a notice, ‘if served by post, shall be deemed to have been served at the time when a letter containing the same would be delivered in the ordinary course of post,’ and that it is not only obvious from the postal certificate, but is proved, that the notice could not have been so delivered within six weeks.

Upon the other point it appears to be sufficiently proved that the document, the meaning of which is clear enough, was granted for valuable consideration by the pursuer to the defenders.”. . .

The pursuer appealed, and argued—(1) The notice was in time. Even if it were held that the notice was not within the six weeks, the action was relevantly laid at common law, and he was entitled to issues. He had not understood the nature of the receipt which it was averred discharged the present claim. To set up such a discharge it was incumbent to show to the satisfaction of the Court that the pursuer had been made thoroughly and intelligently aware of what he was signing.

The defenders replied—(1) The notice was clearly not within the six weeks. (2) The discharge was effectual.