M'Fadyen v. Dalmellington Iron Co.

In an action for damages under the Act brought by the father of a deceased son who had sustained fatal injuries, the pursuer admitted that he had not given the statutory notice until three days after the expiry of six weeks from the date of the accident, but averred that he was “an old man, illiterate, and 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.”

The Court ( dub . Lord M'Laren) dismissed the action as incompetent, holding that no reasonable excuse for not having given the statutory notice had been averred.

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 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.”