Trail v Kelman & Company
| Jurisdiction | Scotland |
| Judgment Date | 22 October 1887 |
| Date | 22 October 1887 |
| Docket Number | No. 3. |
| Court | Court of Session |
Lord Justice-Clerk, Lord Young, Lord Craighill, Lord Rutherfurd Clark.
Reparation—Employers Liability Act, 1880 (43 and 44 Vict. c. 42), secs. 4 and 7—Notice of injury.—
Held that the question whether the excuse offered by a pursuer, suing for damages under the Employers Liability Act, 1880, for omitting to send notice of the injury to the employer in terms of sec. 4, * is reasonable, may be decided by the Court at the adjustment of issues, or may in their discretion be postponed for the decision of the Judge who tries the cause.
Circumstances in which the Court postponed the decision of the question for the decision of the presiding Judge at the trial.
On 3d November 1886, John Trail, a workman in the employment of William Kelman & Company, builders, Edinburgh, was killed on the spot by the fall of a wall at which he was working.
In April 1887 Mrs Cecilia Trail, widow of the deceased, and his children, raised an action in the Sheriff Court at Edinburgh against William Kelman & Company, concluding for damages at common law and under the Employers Liability Act, 1880.
No notice of injury was given to the defender under section 4 of the Act.
The defenders pleaded, inter alia;—(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, with reference to this plea, 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), on 21st May 1887, pronounced an interlocutor which contained, inter alia, this finding:—‘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 a proof.
The pursuers appealed to the Court of Session for jury trial, and proposed an issue at common law and under the Act.
The defenders objected to the issue so far as it was laid under the statute, on the ground that no notice had been sent to the defenders in terms thereof. It had been decided1 that the notice had to be given in writing...
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