Scottish Court of Session Decisions

James M'Fadyen, Joppa, Ayrshire, raised an action in the Sheriff Court of Lanarkshire against the Dalmellington Iron Company, ironmasters, Glasgow, concluding for payment of £163 under the Employers Liability Act 1880, as damages for the loss of his son Samuel M'Fadyen, who was killed while in the defenders' employment.

Samuel M'Fadyen was employed in a pit which was worked by the defenders, and on 7th October 1896, while engaged in drawing a hutch full of coal, he was crushed in such a way as eventually to cause his death.

The pursuer averred—“(Cond. 17) The pursuer has applied to the defenders to make reparation, but they decline to give any compensation. The pursuer also caused notice of said occurrence to be sent to the defenders, in terms of the Employers Liability Act 1880. Notice was given on 21st November 1895, three days after the expiry of six weeks allowed by statute for such notice being given. It is explained that the accident occurred on 7th October, the death on 22nd October, and the public inquiry at Ayr on 12th November, and that notice was given, as above stated, on 21st November. The pursuer is an old man, and is illiterate, and was not aware of the necessity of giving notice; and it was not known whether the deceased would survive the injuries he received, and sue himself for damages in respect thereof. Indeed, up to very shortly before his death, deceased was expected to recover. Further, the defenders have not been prejudiced in any way; and it was, in any view, desirable to await the result of the public inquiry, after which the pursuer had to consult his sons, who live in Glasgow, as to the steps to be taken in the circumstances.”

The defenders pleaded—“(2) The defenders not having received timeous notice in terms of the Employers Liability Act 1880, they are entitled to absolvitor in so far as the action is based upon that statute.”

The Sheriff-Substitute (SPENS) on 30th June 1896 found that there had been contributory negligence on the part of the deceased, and assoilzied the defenders.

The pursuer appealed to the Court of Session.

Argued for the appellant—There was a reasonable excuse here for failing to give notice timeously. He had only been three days late, and the defenders were in no way prejudiced by the delay. He had waited till the public inquiry was concluded, so as to get an accurate account of the circumstances, which would also necessarily have to be ascertained by the defenders, so they could not maintain that they were unable to collect evidence owing to want of timeous notice.

In such circumstances, where there was, as here, a good action at common law, the Court would allow the judge presiding at the jury trial to decide whether there was a reasonable excuse for failing to comply with the terms of the Act regarding timeous notice— Trail v. Kelman & Company, October 22, 1887, 15 R. 4; MacLeod v. Pirie, February 15, 1893, 20 R. 381.

Argued for the respondents—There was clearly no reasonable excuse for the delay, all that the pursuer could aver being that he was ignorant of the law. That was not the kind of excuse which the Court would consider reasonable in terms of the Act. The word “injury” used in section 4 applied to the accident causing death, not to the death itself, and accordingly the time of six weeks must be reckoned from the date of the accident. It was not right to leave this point to be settled at the trial, for the Court had before them all the facts necessary for their decision, and accordingly the case was ruled by that of Connolly v. Young's Paraffin Oil Company, November 17, 1894, 22 R. 80. In the case of Trail v. MacLeod there were facts to be ascertained before the point could be decided, and accordingly it was left to the Judge at the trial; here, on the other hand, there were not.

At advising—