Lord President —I am of opinion that the Sheriff-Substitute has made a mistake. He gives the Court all the material which he had for determining the case in relation to the absence of notice, but he seems to have omitted from consideration or inquiry the question of fact as to whether in this particular case the employer suffered prejudice. He has ascertained in a rough and ready and probably quite legitimate way whether there was any good excuse for want of notice, and he says there was not, but he has omitted to recognise that the Act of Parliament says that even supposing there is no good reason for the want of notice, yet this shall not annul the application if it appear in the proceedings that the employer has not been prejudiced. So far as appears, this employer never said he was prejudiced in this particular case, and the Sheriff-Substitute has treated the case from an abstract point of view. He says that the employer in a case of this kind is necessarily prejudiced, and he goes on to say that “to
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As it does not appear in the proceedings that the employer has been prejudiced, we should send the case back to the Sheriff Court.
Lord Adam —The Sheriff has laid down as law that in every case where there has been a delay of three weeks in giving notice, it necessarily follows that the employer is prejudiced. That seems to me to be his ratio decidendi , and it is not good law.
Lord M'Laren —I am of the same opinion, and only wish further to observe that on the question whether the employer has been prejudiced by want of notice, the facts will in many cases appear at the outset of the inquiry. If it were perfectly clear at an early stage of the inquiry that the employer has been prejudiced, it might not be necessary for the Sheriff to go further, or to determine the amount of damages which he had no power to award. The provisions of the Act may be reconciled by holding that as soon as it appears that the employer has been prejudiced the case is not maintainable. I agree that the Sheriff-Substitute was mistaken in not treating the question of prejudice in the present case as one of fact. The attempt to generalise, and to hold that in all cases of a particular class the employer is necessarily prejudiced, is contrary to the plain intention of the statute.
Lord Kinnear concurred.
The Court pronounced this interlocutor:—
“Find that the facts (1) that the alleged injury happened three days before the completion of the employment; (2) that the employment was left without intimation of the alleged accident, and no intimation thereof given till three weeks thereafter; and (3) that no satisfactory explanation was given of the reason for concealment of the alleged accident, do not preclude the claim from being entertained, it being (under the statute) open to the appellant to prove that the respondents Messrs Carse & Holmes were not in fact prejudiced in their defence by the want of notice: Therefore recal the dismissal of the claim: Find the appellant entitled to the expenses of the appeal, and remit,” &c.
Counsel for Appellant— Hunter. Agent— Alex. Wylie, S.S.C.
Counsel for Respondents— A. J. Young. Agents— Gill & Pringle, W.S.