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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Govan v. Tancred, Arrol, & Co. [1886] ScotLR 23_737_1 (26 June 1886) URL: http://www.bailii.org/scot/cases/ScotCS/1886/23SLR0737_1.html Cite as: [1886] SLR 23_737_1, [1886] ScotLR 23_737_1 |
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Page: 737↓
[Sheriff-Substitute of the Lothians.
Held that it was sufficient under sections 4 and 7 of the Employers Liability Act 1880
Page: 738↓
to prove that the employer de facto received a post letter from the workman within six weeks from the date of the accident, setting forth the necessary particulars, and that it was not essential that the notice should have been delivered by hand, or sent through the post by registered letter.
This was an action of damages for personal injuries in the Sheriff Court at Edinburgh, at the instance of James M'Govan against his employers Tancred, Arrol, & Company. The action was brought at common law, and also under the Employers Liability Act 1880.
The question raised was, whether the pursuer had given the defenders sufficient notice under the Act. Section 4 provides that “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.” Section 7 directs what shall be set forth in the notice, about which there was in the present case no question, and then enacts that the notice “shall be served on the employer, or if there is more than one employer, upon one of such employers. The notice may be served by delivering the same to or at the residence or place of business of the person on whom it is to be served. The notice may also be served by post by a registered letter, addressed to the person on whom it is to be served at his last-known place of residence or place of business.”
The accident in question happened on 15th September 1885.
On 20th October 1885 the pursuer wrote a letter to Mr W. G. Wieland, secretary Forth Bridge Railway Company, which gave notice of the accident in accordance with the statutory requirements.
On 21st October Mr Wieland wrote to the pursuer as follows:—“I am in receipt of your letter of the 20th instant, which, however, should have been addressed to the Forth Bridge contractors, as this company have nothing whatever to do with the matter. I have forwarded your letter to the contractors.”
On 29th October the pursuer wrote to Messrs Tancred, Arrol, & Company as follows:—“More than a week ago I addressed a note to Mr Wieland, secretary Forth Bridge Company, because I did not know but that that was the right thing for me to do. In that note I stated that I had sustained a severe accident whilst at work on the morning of the 15th November in No. 2 shed at your works. I also called attention to the fact that it was well known that the accident arose from no fault or negligence of my own, but was due to defects in gear, &c. In reply, Mr Wieland, after saying that I should not have sent to him on this matter, intimated that he had sent the note to you. As, however, no further reply has reached me, I am anxious to know whether you have got it, and if so whether you think of making any reply to it at all. Leaving the matter to your own consideration in the meantime, and waiting any answer you may feel inclined to make,” &c.
Messrs Tancred, Arrol, & Company wrote on the same date to the pursuer—“On receipt of your letter addressed to Mr Wieland, we forwarded it to The Boiler Insurance and Steam Power Company, 67 King Street, Manchester, who take charge of these matters for us, and to whom we are to-day sending your second letter.”
The defenders pleaded—“(1) The statements of the pursuer are not relevant, and are insufficient to support the conclusions of the action. (2) Notice that injury had been sustained not having been given by the pursuer in terms of the Employers Liability Act, the action is not maintainable under that statute, and should be dismissed quoad that Act.”
The Sheriff-Substitute (
Rutherfurd ) on 14th May 1885 repelled these two pleas, and allowed the pursuer a proof.The defender appealed to the Court of Session, and argued, upon the second plea, that the notice was insufficient, because there had not been service either by delivery or by registered letter— Keen v. Millwall Dock Co., 8 QBD 482.
The pursuer replied that this was a remedial statute which should not be construed hyper-critically— Thomson v. Robertson & Co., November 14, 1884, 12 R. 121. Delivery meant delivery in any way, and, besides, the defenders had accepted as due notice the letter forwarded to them.
At advising—
But what is the requisite manner of serving the notice, and what is sufficient service? Now, there are two modes of service; one is “by delivering the same to or at the residence or place of business of the person on whom it is to be served.” That is plainly a notice by delivered letter as distinguished from a post letter, and that was not the mode of service in the present case. Then there is the alternative mode—“The notice may also be served by post by a registered letter addressed to the person on whom it is to be served at his last known place of residence or place of business.” That is to say, the pursuer may avail himself of the post as a means of giving notice, and that by registered letter; and the reason of this is, that he is not to be entitled to avail himself of the presumption applicable to ordinary correspondence, that a letter has reached its destination unless returned through the dead-letter office.
But if in addition to posting the letter he has also registered it, then that creates a presumption that the letter was delivered. For it is provided that “in proving the service of such notice it shall be sufficient to prove that the notice was properly addressed and registered.” It is to be sufficient to prove that the letter was properly addressed and registered; but that is not to preclude the defender from proving that the letter never reached him, and I think that the pursuer is as little precluded, though the letter was not registered, from proving that the letter was actually received.
That fact is proved here by the letter which the defenders wrote on 29th October 1885 to the pursuer. On that date the pursuer had written to the defenders, and his letter winds up thus—“In reply, Mr Wieland, after saying that I should not have sent to him on this matter, intimated that he had sent the note to you. As, however, no further reply has reached me, I am anxious to know whether you have got it, and if so, whether you think of making any reply to it at all.”
The defenders' answer to this is dated the same day, and is in these terms—“On receipt of your letter addressed to Mr Wieland, we forwarded it to the Boiler Insurance & Steam Power Co., 67 King Street, Manchester, who take charge of these matters for us, & to whom we are to-day sending your second letter.” That is to say, there is under the hand of the defenders a distinct acknowledgment that the letter forwarded by Mr Wieland had been received by the defenders.
I think that there was here sufficient notice, for the pursuer's letter was de facto received by the defenders within the time limited by section 4 of the statute.
It is plain that the letter written by the pursuer to Mr Wieland reached the Forth Bridge Railway Company, and when they get it they deal with it as a notice which they have received, and send it on to their agent in Manchester.
I do not think it is necessary to say anything about the meaning of the term delivery used in the statute, but it does not seem to me that a letter can be said not to be “delivered” because it is sent and delivered through the post. I agree, however, that the letter would require to be registered in order to raise the presumption that it had been delivered.
The Court repelled the first and second pleas for the defenders, and ordered issues.
Counsel for Pursuer and Respondent— Rhind— Gunn. Agent— Robert Stewart, S.S.C.
Counsel for Defenders and Appellants— Comrie Thomson— Hay. Agents— Reid & Guild, W.S.
