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Gornell Law School Gibrary
Cornell University Librai
3229.D26

Ta
WORKMEN’S COMPENSATION APPEALS
1910-11 AND 1911—12
 

 

FOURTH EDITION, ror. 786 pages, royal 8vo.
Price &1 5s. net.

DAWBARN’S EMPLOYERS’ LIABILITY AT COMMON
LAW, UNDER THE EMPLOYERS’ LIABILITY ACT, AND
THE WORKMEN’S COMPENSATION ACTS.

This is a most exhaustive work on the subject. In an appendix
are given additional Forms, based on those of an actual case fought
right through to the House of Lords, and the taxed Bill of Costs
in connection with it. Other Appendices contain all the Rules,
Forms and Fees, and Lord Campbell’s Acts and other Acts.

SOME PRESS OPINIONS.

“Mr. Dawbarn is much more than an ordinary apnotator, and does not
hesitate to express his opinions and deductions clearly and forcibly.”—ZLaw
Times.

“The book contains an admirable account of a very difficult and impor-
tant subject, and will be of great service to all practitioners.”—Scots Law
Times.

“ The work will undoubtedly retain its place as one of the most useful and
reliable guides to the intricate subject with which it deals.”—Jrish Law
Times.

“As a vade mecum for the insurance profession it is invaluable, and as a
text-book for the lawyer it stands alone.”—Jnsurance Review,

 

 
WORKMEN’S COMPENSATION
APPEALS

THE CASE LAW FOR THE LEGAL YEARS
1910—11 AND 1911-12

BY

Cc. Y. C. DAWBARN, M.A.,

OF THE INNER TEMPLE AND NORTHERN CIRCUIT, BARRISTER-AT-LAW, AUTHOR OF
“( 2MPLOYERS’ LIABILITY TO THEIR SERVANTS AT COMMON LAW AND
UNDER THE EMPLOYERS’ LIABILITY ACT, 1880, AND THE
WORKMEN’S COMPENSATION ACT, 1906.’

SWEET AND MAXWELL, Lrp., 3, CHaANcERY Langs, Lonpon.
THE CARSWELL CO., Lrv., 19, Duncan Srrzzr, Toronto, CanaDa.
1912.

184163
PREFACE.

— ie

In bringing out this annual the publishers and myself both
thought it would much add to its utility if we incorporated the
previous one and again in a single supplemental volume brought
up to date every text-book published not earlier than the end of
the year 1910. So once again its need is spoken to by its very
size, and whilst in the past number 130 new cases were dealt
with, in this 141 more have had to be considered. These include
the decisions of the Court of Appeal during the past Trinity
Term, which, mostly not being yet reported, I have dealt with
from my notes made during the hearing. On the whole they
show little change in the old law—a mercy for which a text-book
writer has much to be thankful; but the amazing fact is the
number of new points—and important points—that arise for
elucidation. Then most curiously, as the Master of the Rolls
observed, there seems to be a regular epidemic of the same class
of case. Thus in this Term there were three as to whether
certain fishermen were shore hands or ordinary servants. Two
most important cases as to change of grade came on together,
whilst it is certain that in Payne v. Fortescue we have the fore-
runner of a number of cases on the agreement an employer must
make who would avoid “any question.” Possibly new points
may prove of less general interest than those here dealt with,
but nothing is more impossible to foretell than the happenings
of this Act. Weall remember its introduction with the assurance
that lawyers were to be rendered unnecessary, that a new era of
peace with arbitration was to be introduced, and it has kept
them busy ever since. Whether in the future it will prove far
different no one can prophesy, but here if I enable my reader
to keep abreast of present developments I shall be more than

content.
Cc. Y. C. DAWBARN.

5, Kine’s Bencn Watx,
TEMPLE.
TABLE OF CASES.

—_>+—.

PAGE

Asratu v. N. E. Ry.,1Q.B.D.456 . . . . .  . 156

Admiral Fishing Oo. v. Robinson, 3 B. 247 . - 2 ‘s ‘ . 7

Ambridge», Good* . 144
Amys v. Barton, 81 L. J. 63; [1912] 1 K. B. 40; 105 L. T. 619; 28

T. L. BR. 29; 5B. 117; [1912] W.C. BR. 22 . 2 . 164
Andrew v. Failsworth, 73 L. J. 510; [1904] 2K. B. 82; 6M. 8. iL. .24, 27, 28
Anglo-Australian S. N. Co. v. Richards, 4B. 247. F 2 : . 130
Anslow v. Cannock Chase, 78 L. J. 154; [1909] A. C. 435; 99 L. T.

901; 25 T. L. RB. 570; 538. J. 519; 2B. 365 . 7 . - 103
Ashley v. Lilleshall Co., Ltd., 5B.85 . , . 33
Astley v. Evans, 80 L. J. 1177 ; [1911] A. ©. 674; 49 8. % R. 675 ;

105 L. T. 385; 277. L. BR. 557; 55 8. J. 687; 4B. 209, 319 - 416

Bascock and Wilcox v. Young, [1911]8. 0.406; 488. L. R. 298; 4B.367 104
Bailey v. Kenworthy, 77 L. J. 236; ee 1K. B. 441; 98 L. T. 327;

1B. 371; 24T7.L.BR.186. . . 5 . 103
Baker v. Jewell, 3B. 503. . 119
Ball v. Hunt, 81 L. J. 782; [1911] 1 ‘K, B. 1048 ; 49 8. L. R. 711;

106 L. T. 911; 28 T. L. R. 428; 568. J. 550; 5 B. 459; [1912]

W. C. BR. 261 . - - 1138, 114, 115
Banknock Coal Co. v. Tawa, 81 LL. J. P. 0. ‘89; [1912] A. C. 105; 106

L. T. 283; 28 T. L. B. 136; 5 B. 209; [1912] W.C.B.1. 94
Barnabas v. Bersham Colliery Co., 48 8. L. R. 727; 103 L. T. 513; 55

8. J. 63; 4B.119. 2 5 29, 32
Barnes v. Nunnery Colliery Co., ‘1 L. J. 218; ‘[1912] A. 6. 44; 49

8. L. B. 688; 105 L. T. 961; 28 TL. B. 135; 568. J. 159; 5B.

195; [1912] Ww. C. B. 90 re ‘ ‘ : . 14
Barron », Carmichael, 5 B. 437  .. : 3 ; : . . - 48
Barton v. Scott and Hodgson, 5B.15 . 7 . . 152
Bates-Smith v. General Motor Cab Oo., 80 L. J. 839 ; [1911] A. C. 188;

105 L. T. 113; 27 T. L. BR. 370; 55S, J. 439; 4B. 249 3 85
Beaumont v. Undereround Electric Railways, 5 B. 247; [1912]

W. C. B. 123 . 2 . 382
Beech v. Bradford Corporation, 4B. 236 . . . 85, 113, 122, 169
Bender v. “ Zent” (Owners of), 78 L. J. 533; [1909] 2 K. B. 41;

2B.22 . f 19
Bevan v. Energlyn Colliery, 81 ‘L J. 172; [1912] 1 K. 3B. 63; 105

L. T. 654; 28 T. L. BR. 27; 5 B. 169; [1912] W. 0. B. 126 . . 109
Biggart v. “ Minnesota ‘“ (Owners of),5B.68 . “ : . 39
Blackwell v. Howell, 5 B. 293; [1912] W.C.B.186 . . . . 158
Blake v. Head, 106 L. T. 822; 28 T. L. R. 321; 5 B. 303; [ie12)

W. 0. BR. 198 . . ‘ 5

* Unless otherwise specified, Law Journal King’s Bench reports are referred to.
Vill Table of Cases.

 

PAGE
Blakey v. Robson, Eckford & Co., [1912] 8. 0. 334 4 . 28
Boag v. Lockwood Collieries, Lta., [1910] S. C. 51; 475. i R. a7; 3

B.549 . i . 113
Borland v. Watson Gow, [1912] 8. ‘0. 15; 49 8. im R. 10; 5 ‘B. 514, 8
Braithwaite and Kirk v. Cox,5B.77 . : . 116, 130
Brandy v. ‘‘ Raphael ’’ (Owners of), 80 L. J. "1067 ; [1911] A. C. 418;

498. L. B. 625; 105 L. T. 116; 27 T. L. BR. "497; 55 8S. J. 579;

4 B. 307 . : : 79, 104
Breakwell v. Clee Hill Granite Co., 5 B. 133 z j . 54
Briggs v. Mitchell, [1911] 8. ©. 705; 48S. L. R.606;4B.400. . 92
Brintons v. Turvey, 74 L. J. 474; [1905] A. O. 230; 1 M.8.1 . . 3
Brown v. Hunter, 49 8. L. R. 696 . " ‘i ‘ . 49

v. Thornycroft, 5 B. 386. . . : : : . » 117
Browne v. Kidman, 4 B. 199. . é 2 ‘ é ‘ ‘ . si
Burgess v. Jewell, 4 B. 145 . ‘ Fi . : ; : . . 118
Burrell v. Holloway Bros., 4 B. 239 : . ¢ é . . 62
Burwash v. Leyland, 28 T. L. R. 546. 3 . 21
Butler v. Burton-on-Trent Union, 106 L. T. 824; 5 B. 355; [1912]

W.C.R.222.—. 28
Byrne v. Baltinglass Rural District Council ‘and Kelly, 5 B. 566 ; 45

Ir. L.T.206.  . : : : : . 86
CADENHEAD v. Ailsa Shipbuilding Co. . a 166
Calico Printers’ Association v. Higham, 81 L. J. 232 ; [1912] 1 K. B.

93; 105 L. T. 734; 28 T. L. R. 53; 568. J. 89; 5 B. 97; [1912]

W. O. R. 104 . 5 : 7 ; 4 : 3 ‘1 is . 145
Canwell v. Kellsall Bros. 3 . 70
Cardiff Corporation v. Hall, 80 L. Te 644; [1911] 1 K. B. "1009 ; 104

L. T. 467; 27 T. L. R. 339; 4 B. 159 ‘ , - 128, 125, 127, 180

Carlin v. Alex. Stephen, [1911] 8. ©. 901; 488. L. R. 862; 5B. 486...126, 141
Carolan v. Harrington, 80 L. J. 1153; [1911] 2K. B. 733; 105 L. T.

271; 277. L. R. 486; 4B. 253. 5 ‘ 5 . 172
Casey v. Humphreys . , . 157
Chandler v. G. W. R., 106 L. ‘TD. 479 ; 5 B. 254; [1912] w. 0. R.169. 11
Charvill v. Manser & Co., [1912] W. C. R. 198; 5 B. 385. . 22
Chisolm v. Walker, 2 B. 261. ‘ . 86

Clarke v. Gas Light and Coke Co., 21 T. Th R. 184; 7M. 8. 119.. 112, 124, 131
Clover and Clayton v. Hughes, 79 L. J. 470; [1910] A. ©. 242; 102

L. T. 340; 26 T. L. R. 359; 548. J. 375; 3B. 275 . 4, 29, 30, 32
Coakley v. Addie . ‘ 4 ‘ ‘ i j . 166
Cokolon v. Kentra . ‘ : 5 3 s ; : _ 5 . 21
Cole v. Evans, 4 B. 188 . : . 24
—— v. Shrubsall and Wakeley Bros., 5 B. 337 ; [1912] W. 0. R. 296 . 85
Connor v. Meads, 5 B. 435. : , . 160
Conway v. Pumpherston Oil Co., [1911] 8. 0. 660 ; 48 8. L. R. 632 ;

(1911] 18. L. T. 440; 4B. 392 ‘ . : 5 F . 13
Corbett v. Haines, 5 B. 372; [1912] W. ©. R. 288, ‘ ‘ . 142
Cory Bros. v. Hughes, 80 Li J. 1307; [1911] 2 K. B. 738; "105 L. T.

274; 27T. L. R. 498; 4 B. 291 . . . ‘ - 118
Costello v. Kellsall Bros. 7 a ; ; . 170

Cotter v. Johnson, 5 B. 568 ; 46 Tr: L. 7. 259 : : : : . 84
Table of Cases. ix

PAGE
Coulson v. The Worshipful Company of re 5B.136 .. . 158
Cox v. Braithwatte,5 B.77 . ‘ ‘ . 116, 180
Cranfield v. Ansell, 4B. 57 . . . 137

eee Guest, 77 L. J. 326 ; [1908] 1K. 'B. 469 ; 24 T, i R. 189 ;
1B. 160

 

 

Cronin v. Bilger: 4 B. 221 3 ; ‘ . . 24
Curtis v. Talbot and Kidderminster Infirmary, 5 B. 41 & . . 33
Davy v. Windsor Steam Coal Co., 4 B. 177. F . 119
Davies v. Gillespie, 105 L. T. 494; 28 T. L. R.6; 56 S. J. 11; 5 'B. 64 28
Daff v. Mid. Collieries Mutual Indemnity Co. ‘ ‘ F » « 61
Devitt v. Bainbridge, 2 B. 383 : . i . 135
Devlin v. Pelaw Main Collieries, 5 B. 349 ; [1912] W. 0. R. "295 . . 90
Dinnington Main Colliery Co. v. Bruins, 5 B. 445; [1912] W.0.R.1738 128
Dixon v. “‘ Ambrent ” (Owners), 5 B. 428; [1912] W. O. B. 224 . - 388
Dobby v. Pease,2B.370  . ‘ - 112, 123

Dobson v. British Oil and Cake Mills, Ltd., 106 Ti T ‘993; 5 B. 405;
[1912] W.C.B.207. . ow. 106
Donaghy v. Ulster Spinning Co., [1912] Ww. C. BR. 183 . ‘ ‘i . 154

Dothie v. Macandrew, 77 L. J. 388; [1908] 1 K. B. 803; 98 L. T.
495; 24T. L. RB. 326; 1B. 308. . 84
Doyle v. Cork Steam Packet Co., 5 B. 350; [1912] W. ©. R. 208 . . 108
Dunnigan v. Cavan, [1911] 8. C. 579; 488. L. R. 459; 4 B. 386. : 7

Duris or Macdonald v. Wilsons and oc Coal Co., 5 B. 478; ‘uae
W. C. BR. 302 . . . . 113
Eaton v. Evans, 5 B. 82 Z ‘ ; 3 . 68
Edge v. Gorton, 28 T. L. R. 566; [1912] W. ‘N.217 .. 105, 106

Edgerton v. Moore, 81 L. J. 696; [1912] 2 K. B. 308; 106 L. T. 663;
5 B. 284; [1912] W.C.R.250  .. 54

Eke v. Hart-Dyke, 80 L. J. 90; [1910] 2 K. B. 677; 103 L. T. 174; 26
T. L. B. 613; 3 B. 482 . . 7 F 5
Elliot v. @urry and Dodd, 5 B. 584; [i812] W. ©. R. 188 ‘ : . 127
Emmerson v. Donkin, 4 B. 74 ‘ : : : . 116
Euman v. Dalzell, 49 8. L. B. 693 : 3 r : * . 12
Evans v. Cory, 5 B. 272; [1912] W. C. R. 199 : 3 . 5 - 118
v. Dodd, 5 B. 305; [1912] W. C. B. 149 . . P . 3, 76

v Gwanncseparwen Colliery Co., 106 L. T. 613; 5 B. 441;
[1912] W. OC. R. 215 . a : : : : . 160
Farmer v. Stafford, Allen & Sons, 4 B. 223 . a 31

Fletcher (Hewitt) v. “Duchess” (Owners of), 81 i J. 83 ; [1911]

A. C. 671; 49 S. L. R. 627; 105 L. T. 121; 35 8. J. 598; 27

T. L. B. 508; 4 B. 317; [1912] W. O. B. 16 . ig ge BR
Fox v. Battersea Borough Council, 4 B. 261. : . 48, 152
Frith v. “ Louisianian ” (Owners), 81 L. J. 701; [1912] 2 K. B. 155;

106 L. T. 667; 28 T. L. R. 331; 5 B. 410; [1912] W. C.R. 285 . 24

Frogbrook v. Potts, 4 B. 266. . : . 167
Fry v. The Mayor of Cheltenham, 81 L. z rae 105 L. T. 495; 28
T. L. RB. 16; 568. J. 33; 5 B. 162; [1912] W.C.R.103 . 4, 159

Furnival v. Ji sshingon Iron aud Steel Co., 5 B. 43 . : 5 - 22, 155
x Table of Cases.

PAGE
GarnanT Anthracite Collieries v. Rees. A ; . ; . 78, 128
Garrett v. Waddell, 48 S. L. R. 937; 5B. 507. ‘ : : . TT
Gilbey v. G. W. B., 102 L. T. 202 . er
Gilmour v. Dorman, Long & Oo., 105 L. T. 54; 4 B. 279 ‘ : . 40
Godwin v. Admiralty Commissioners, 81 L. J. 532; [1912] 2K. B. 26;
106 L. T. 186; 28 T. L. B. 229; 568. J. 307; 5 B. 229; [1912]
W.O0.R.49 «. ‘ is 58, 95
Grant v. Glasgow and 8. W. RB, 1 ‘B. 17 : ; ; . : . 22
Greene v. Shaw, 5 B. 573 ; [1912] W. O.R. 25. . . » 25
Greer v. Lindsay Thompson, 5 B. 586; [1912] W. C. R. 272. ‘ . 23
Griffiths v. Atkinson, 106 L. T. 852; 5B. 345 =. ‘ i . 53, 59
Groves v. Burroughes and; Watts, 4 3B. 185. : . é < . 33
Guest, Keen and Nettlefolds v. Winsper, 4 B. 289 ‘ ‘ : - 127
Haus v. Corbett, 5B. 372. A 3 - 142
Halvorsen v. Salvesen, [1912] 8. C. 99; ‘49 8. L. R. 27; 5 B. 519 . 17

Harding v. Brynddu Colliery Co., 80 L. J. 1052 ; [1911] 2 K. B. 747;

105 L. T. 55 ; 27 T. ti B. 500 ; 558. J.599; 4B. 269 . 12, 14, 17
v. Boyal Mail S. P. Co., 4B.59 _. - 185
Hargreave v. Haughhead Coal Co., 81 L. J. P. C. 167: [1912] A. CO.

319; 49 S. L. B. 474; 106 L. T. 468; 56 8. J. 379; 5 B. 445;

 

[1912] W. C. RB. 275 : ; 3 . 114, 115, 116, 166
Hartshorne v. Coppice ae Co., 106 L. 7. 609; 5 B. 358; [1912]

W. 0. B. 255 . 5 . . . 164
Hawkes v. Cole,3 B.163 .. ‘ - 43

Hawkins v. Powells Tillery Steam Coal Co., 80 th J. 769 ; [1911] 1
K. B. 988; 104 L. T. 365; 27 T. L. B. 282; 55 8. J. 329: 4B.

 

178 . é : - . A - . 382
Henneberry »v. Dayle, [1912] W. ©. R. 145 : 5 . . 152
ae (No. 2), 5B. 580; [1912] W.0.R.147 .  . 34
Henricksen v. “ Swanhilda ” (Owners of), 4 B. 233 , . 172

Hewitt v. ‘‘ Duchess’ (Owners of), 81 L. J. 83; [1911] A. C. 671; 49
8. L. R. 627; 105 L. T. 121; 27 T. L. B. 508; 358. J. 598; 4B.

 

317; [1912] W.C.R.16 . 87, 38
Higgins v. Poulsom, 81 L. J. 690; [1912] 2 K. B. 999 ; 106 L. T. 518;

28 T. L. RB. 323; 5 B. 340; [1912] W. OC. R. 244 . . 45, 46, 47, 164
Hoare v. Arding and Hobbs, 5B. 36 . é ; - 3 . 54

v. Barge ‘‘ Cecil Rhodes ” (Owners of), 5 B. 49 . : . 85
Hodgson v. West Stanley Colliery Owners, 79 L. J. 356; [1910] ‘A. C.

229; 3 B. 392 . F 89
Homer v. Gough, 81 L. J. 261 ; [1912] 2 K. B. 303 ; 105 L. T. 132 ;

5 B. 61; [1912] W. C. B. 30 . z ‘ 3 - 62, 151
Honor v. Painter. 4B. 188 . ‘ oo ST
Horn v. Admiralty (Lords Commissioners), 80 L. J. 278; [1911] 1 K, B.

24; 103 L. T. 614; 27T. LL. R.84;4B.1 . 58
Hosegood & Sons v. Wilson, 80 L. J. 519; ee 1 K. B. 30; 103

L. T. 616; 27 T. L. R. 88; 4 B. 49 3 . . 143, 147
Howarth v. Samuelson, 104 L. T. 907; 4 B. 287 . ‘ i - 150, 151
Howe v. Fernhill Colliery Co. _ : 10, 11
Howell v. Blackwell’s Executors, 5 B. 293 ; [1912] W. ©. R. 186. - 158

 

v. Bradford, 104 L. T. 433; 4 B. 203. : . , 42, 88
Table of Cases. xi

 

 

PAGE
Huckle v. London County Council, 4 B. 113. : ‘ Fi : . 68
Hughes v. Postlethwaite, 4 B. 105 ; . ; . ‘ ‘ - 85
Humber Towing Co. v. Barclay, 5 B. 142. : ; 7
Humphreys v. City of London Electric Lighting Co., 4 B. 27 5 . 109
Ismay, Imrie & Co. v. Williamson, 77 L. J. P. C. 107; Cel: A. ©.
437; 1B. 232. ‘ 5
Ivey v. Ivey, 81 L. J. 819; [1912] 2 K. B. 118; 106 L. T. 485; 5 B.
279; [1912] W. OC. RB. 293 . : 5 . . 184
JACKSON v. Vickers, Ltd., 5 B. 433; [1912] W. C. R. 274. ‘ . 53
James v. Ocean Coal Co., [1904] 2 K. B. 213; 6 M.S. 128 . 3 . 110
Jenkins v. Standard Colliery Co., 28T.L.R.7; 5B.71  . < . 10
Jenkinson v. Harrison, 4 B.194 . ; ; 2 ° ‘ ‘i . 24
Jessop v. Maclay, 5B. 139. ‘ 5 ‘ 7 : , i . 158
Jobson v. Cory & Sons, 4 B. 284. . . 88
Johnson v. Oceanic Steam Navigation Oo., 4 B. 322; (sia) W. 0. BR.
162 . ‘ a - . 131
v. Wootton, 27 T. L. R. 487; 4 B. 258 i . . 55

Jones v. New Brynmally Colliery Co., 106 L. T. 524; 5 B. 375; [1912]
W. C. RB. 281. : 2 ; . 78, 128

- v. Tirdonkin Colliery, 5 B.3 é a 3 - - . 153
Joyce v. Wellingborough Iron Co., 5 B. 126. . 1

Judd v. Metropolitan Asylums Board, 5 B. 420; [1912] Ww. 0. R. 220 . 56
Jury v. “ Atalanta’ (Owners of), [1912] W. N. 218; 28 T. L. R. 562. .71, 105

KarEMAKER v. ‘“ Corsican ” (Owners of), 4 B. 295 ‘ ~ ee 4, 25
Kearon v. Kearon, 44 Ir. L. T. 96; 4 B. 435 . 4 . <7
Keeling v. New Monckton Oollieries, 80 L. J. 539, 1205, H. L.; [1911]
1K. B. 250; 498. L. R. 664; 4B.49 . : : 88, 89, 90, 92
Kelly v. Auchenlea Coal Co., [1911] 8. C. 864; 48 S. L. R. 768; 4 B.
417 7 2 . , 3
——- v. Kerry County Council, 1 B. 194 ‘ ° , ; .  . 26
Kempson v. ‘“‘ Moss Rose” (Owners of),4.B.101 . . - + 107
Kendall and Gent, Ltd. ». Pennington, 106 L. T. 817; ‘5 B. 338;
[1912] W.C.R. 144. . 145
Kerr v. Baird, [1911] 8. C. 701; 48 S. Ti R. 646 ; 4B. "397 . ; . 13
Keyser v. Burdick, 4B. 87 . : j 17
King v. Phoenix Assurance Co., 80 L. J. 44; "103 L. T. ‘53 . : . 61

Kitchenham v. ‘eJobiannesburg ” (Owners of), 80 L. J. 1102; [1911]
A.C. 417; 498. L. B. 626; 105 L. T. 118; 27 T. L. RB. 504; 55

S. J. 599; 4B. 91, 311 . ‘ 37, 39

Kniveton v. Northern Employers’ Mutual Indemnity Co., sy a 1
K. B. 880; 4M.8.37 . : . 61
Knott v. Tingle, Jacobs & Co., 4 B. 55. ; . 84, 104
Kyle v. M‘Gintys, [1911] S. C. 589; 488. L. R. 474 ; .e 389. «S50
LANKESTER v. Miller, Hetherington third aia 4B.80 . 5 : .
3 . . 4

Leach v. Hickson, 4 B. 153.

——- v. Oakley, Street & Co., 4 B. 93 . 40
xil Table of Cases.

PAGE
Lee v. “Bessie”? (Owners of), 81 L. J. 114; [1912] 1 K. B. 83; 48
8. L. R. 724; 105 L. T. 659 ; 5B, 55; [1912] W. C. BR. 57...92, 153, 156

—— v. Stag Line . 7 . 20
Lees and Sykes (third parties) v Dunkerley Bros., 80 L. J. 135; [1911]

A. 0.5; 103.L. T. 467; 558. J. 44; 4B. 115 . 4 . 65
L. & N. W. RB. v. Taylor, 4 B.11 . : ; - 122, 143, 144, 166
Lowestoft Corporation v. Aldridge, 5 B. 329 ‘ ; ; . 160
Lunt v. Sutton Heath and Lea Green Collieries, 4 B. 219 5 ‘ . 163
M‘Cartuy v. Stapleton-Bretherton, 4 B. 281 ‘ 163
M‘Clean v. Moss Bay Iron Oo., 78 L. J. 849 ; [1909] 2 K. B. 521; 3 B.

402. ‘ 89

ieee v. * Tintoretto 2 (Owners of), 80 L. J. 161; [1911] A. C.
; 103 L. T. 769; 27 T. L. R. 149; 5558. J. 124; 4B. 123. 69, 108
een v. Wilsons and Clyde Coal Co., 81 L. J. P. C. 188; 49
8. L. R. 708; 106 L. T. 905; 28 T. L. R. 431; 568. J. 550; 5 B.
478; [1912] W.0.R. 302. » + 188
M’Dougall v. M’Dougall, [1911] 8. C. 426 ; 48 8. a R. 315; 4B. 373. 93
M’Ghee v. Summerlee Iron Co., [1911] 8. 0. 870; 48 S. L. R. 807; 4

B. 424. * 155
MacGillivray v. Institute for Blind, (isin) 8. C. 897; 48 8. oe R. 811;

4B. 429. . 87
MWGinn v. Udston Coal Co,, 49 8. L. R. ‘531; ‘SB. 559; [1912] W. C. R.

134. : 76
Mackay v. Rosie, 49 8. L. R. 48; 105 L. T. 682; 568. J. 87; 5B. 1815

[1912] W.C.R.41. yg? i ee . 96
Mackinnon v. Miller, 46S. L. R. 299 ; 2 B. 64 , P 9
M‘Laren v. Caledonian Railway, [1911] 8. ©. 1075; 48 S. L. R. 885 ;

5 B. 492 . s 40

McLauchlin v. pasar, [1911] S. C. 529 ; 48 8. te R. 349; 4B. 376. 16
M’Lean’v. Allan Line §.8. Co., [1912] S. ©. 256; 498. L. B. 207; 5B.

527; [1912] W.C.R.37 . . ty a celles
McNamara v. Burtt, 4 B. 151 : 130
McNeice v. Singer Sewing Machine Co., » fe] s. C. 12; 48 8. i: R.

15; 4B. 361 . 2 si - 25
MeNicholas v. Dawson, 1 M. 's. 80 ‘i ‘ - . 22
Main Colliery v. Davies, [1900] A. C. 358; 2 M. 8. 108 . 2 99
Mallinder v, Moores and Son, Ltd., 81 L. i 714; [1912] 2 x B. 124;

106 L. T. 487; 5 B. 362; [1912] W.C.R257. : is
Marriott v. Brett andl Beney, 5 B. 144 . 3 ‘i 24, 169

Marshall v. “ Wild Rose ” (Owners of), 79 L. J. 912; [1910] ‘A. CO. 486 ;
48S. L. R. 701; 103 L. T. 114; 26 T. L. BR. 608; 548. J. 678; 2

B. 78 . F 7 ‘ ‘i . 19
Martin v. Manchester Goxporation, 106 L. Tr. 741; 28 T. L. RB. 344;

5 B. 259; [1912] W.C.R.289 . ee aan
Maundrell v. Danleeston Collieries, 4B. 76 . ‘ ‘ ‘ : . 164
Mawdsley v. West Leigh Colliery Co.,5B. 80  . ; ; ; - 18
Meier v. Dublin Corporation, [1912] 2 Ir. R. 129. : . 69
Millar v. Refuge Assurance Co., [1912] 8. ©. 37; 49S. L. R. 67 . 5 . 64
Mitchell v. Glamorgan Coal Co., 23T. L. B. 588; 9M.S.16 . . 10

 

- v. “Saxon” (Owners of) . : ‘ ; : : - 28, 156
Table of Cases. xiii

PAGE
Molloy v. South Wales Anthracite Colliery Co., 4 B. 65 : ; 35
Moore v. Manchester Liners, Ltd., 79 L. J. 1175; pers C. 498 ;
48S. L. R. 709; 3 B. 527 . 3 37
—— v. Naval Collieries, 81 L. J. 149; [1912] 1 K. B. 28; "105 in T.
838; 5 B. 87; [1912] W. 0. BR. 81. : 15

Morgan ». Dixon, 81 L. J. P. C. 57; [1912] A. C. “14; [1911] 8. 0. 408;
49 8. L. R. 45; 105 I. T. 678; 28 T. L. R. 64; 56

 

S. J. 88; 5 B. 184; [1912] W.0.R.43.  .  . 185

- v. “ Zenaida” (Owners of), 25 T. L. R. 446; 2 B.19 Sr ‘ 5

Mortimer v. Secretan, 78 L. J. 521; [1909] 2K. B. 77; 2 B. 446. . 169

Moss & Co. v. Akers, 4 B. 294 “ 3 118
Mowlem v. Dunne, 81 L. J. 777; [1912] 2 K. B. 136; ‘106 Ti T. 611;

5B. 382; [1912] W.0.B.298 rs c:)
Mulholland v. Whitehaven Colliery Co., 79 i J. 987 . 150
Murray v. Denholm & Co., oe 8. C. 1087; 48 8. L. RB. "896; s B.

496. is . . 5 . ‘ . 6, 24
Nay or v. Musgrave Spinning Co., 4 B. 286 z 7 ; ‘ - 28
Newhouse v. Johnson, 5 B.137 . A . . 101
Niddrie and Benhar Coal Co. v. ee: 49 S. Tt: R. 518; 5 B. 552;

[1912] W.C.R.177 92
Nisbet v. Rayne and Burn, 80 L. J. 84; [1910] 2 K B. 689; 103 L. T.

178; 26 T. L. R. 632; 548. J. 719 5 6
Noden v. Galloway, 81 L. I 28; ae 1K. B. "46; ‘105 zi, T. 567;

28T. L. R. 5; 55S. J. 838; 5 B.7 ; [1912] W. 0. B. 63 : : 2

OsBoRNE ¢. Vickers, Sons and Maxim, [1900] 2 Q. B. 91; 2M.S.130. 185
Osmond v. Campbell and Harrison, [1905] 2 K. B. 852 ; 8 M.S. 95...98, 99, 100

PanaGoris v. “‘ Pontiac ’? (Owners of), 81 L. J. 286; [1912]1K. B. 74;
105 L. T. ee 28 T. L. BR. 63; 568. J. 71; 5 B. 147; [1912]

 

W.O.R.74 =. ‘ : 68, 81, 151
Parker v. See [1912] W. N. 205 ‘ ‘ ‘ < os . (414
v. Pont, 105 L. T. 493; 5 B. 46 ; é s "I : . 40
Parry v. Rhymney 7 : é é ‘ z . 117
Payne v. Fortescue, [1912] W. N. 216 ‘ . , 46, 47
Peel v. Lawrence and Sons, 106 L. T. 482; 28 T. L. R. 318; 5 B. 274;
[1912] W.C.R. 141. . «8
Penn v. Spiers and Pond, 77 L. J. 542; [1908] 1 va B. "766 ; 1 B.401. 84
Perry v. Lacey, 5 B.1 . , . 158

- v. Ocean Coal Co., 106 L. T. “713; 6B. 421; ' [1912] W. C. BR. 212 30
—- v. Wright, 77 L. J. 286 ; [1908] 1K. B. 441; 98 L. T. 327;

 

 

247. L. R. 186; 1 B. 363 ‘ - 103, 106
Peters v. “‘ Argol”’ (Owners of), 5 B. 414; [1912] W. C. R. 172 i . 40
Phillips v. Vickers, Son and Maxim, 81 L. J. 123; [1912] 1 K. B. 16;

105 L. T. 564; 5 B. 23; [1912] W. @. R. 71. . 164, 165
- v. Williams, 4 B. 143 Fi ; 7 : . 386
Pierce v. Provident Clothing, &c., Co., 80 Th J. 831; " [1911] 1K. B.

997; 104 L. T. 473; 277. L. R. 299; 558. J. 363; 4B, 242 . 26

Polled v. G. N. B., 5 B. 115 . Fi : ‘ ‘ é . 92, 156

Pomfret ». L. & ¥. B., 5 M.S. 22. : . ¢ : j : . 22
XIV Table of Cases.

 

PAGE
Pope v. Hill’s Plymouth Co., 105 L. T. 678; 5 B. 175; [1912]

W.0. R15. : 41
Popple v. Frodingham Iron and Steel Co., 81 L. J. 769; [1912] 2 K B.

141; 106 L. T. 703; 5 B. 394; [1912] W. OC. BR. 231 =; F 165
Poulton v. Kelsall, 81 ii J. 774; [1912] 2K. B. 131; 106 L. T. 522;

28 T. L. RB. 329; 5 B. 318; [1912] W.C. RB. 295 . 5 é . 85
Powell v. Bryndu Colliery Co., 5 B. 50. : ‘ ; . . 16
Priestly v. Fowler, 7 L. J. 42; 3M. & W.1 . . 65
Proctor v. Robinson, 80 L. J. 641; [1911] 1K. B. 1004 ; 3B. 41, . 124
Quin v. Flynn, 3B.594. 0. ww 87
RaDcuiF¥E v. Pacific Steam Navigation Co., 79 L. J. 429; [1910] 1

K. B. 685; 3 B. 185 . ‘ 118, 114, 115, 128, 129
Rees v. Consolidated Anthracite Collieries, 5B. 403 ; [1912] W. 0. R. 205 163
Refuge Assurance Co. v. Miller, 49S. L. R. 67 . ‘ 3 . 54
Revie v. Cumming, [1911] Sc. 1032; 48S. L. R. 831; 5 B. 483 3 . 16
Rex v. Templer, Howarth, Ex parte, 81 L. J. 399; [1912] 2K. B. 444;

106 L. T. 855; 28 T. L. R. 410; 56 8. J. 501; 5 B. 455; [1912]

W. OC. B. 114, "209. - ; ‘ . 141, 150
Reyners v. Makin, 4 B. 267 . : . : . . : : . 117
Richards v. Sanders, 5 B. 352 ‘ . 3 : 3 . 158
Richardson v. ‘‘ Avonmore ” (Owners of), 5 B. 34 : - 22
Riley v. Holland, 80 L. J. 814; [1911] 1 K. B. 1029 ; 104 ih T. “3m1;

27 T. L. RB. 327; 4 B. 155 - 36
Roberts and Ruthven v. Hall, 106 L. T. 769 ; ‘a B. 331; [1912] Ww. C. R.

269. . . 125, 129, 140
Robson v. Blakey, 49 8. Ti R. 254: 5 B. 536 ; [1912] W. C. RB. 86 . 28
Rodger v. Paisley School Board, 49 8. L. R. 413; 5 B. 547; [1912]

W.C.R.157 . OO. 28
Roles v. Pascall, 80 L. J. 728; [1911] 1 K. B. 982 ; 104 i, T. 298 ; 4

B.148 z - : 55, 56
Rose v. Morrison, 80 L. I. 1103; 105 L. Hts 2; 4B. 277 . ij a  Q4
Ryan v. Hartley, 81 L. J. 666 ; [1912] 2 K. B, 150; 106 L. T. 702; 5

B. 407; [1912] W.C.B.236. . <. e1es

-v. Tipperary County Council, 5 B. 578 ; [1912] W. Cc. BR. 195 . 86
SapcorTe v. Hancox, 4 B. 184 2 - 2 ‘ . 137
Schofield v. Clough, 5 B. 417; [1912] W. C. R. 301 : : 149

Schwartz v. India-rubber, &c., Works Co., 81 L. J. 780; [1912] 2K. B.
299; 106 L. T. 706; 28T. L. R. 331; 5 B. 390; [isla] W. C. BR. 190 2

a Segura ” (Owners of) v. Blampied, 4 B. 192, . : - 169
Senior v. Fountain, [1907] 2 K. B. 563; 9M.S.116 . : A . 89
Sherwood v. Johnson . . < ; : - 3
Shore v. “ Hyrcania” (Owners ay 4B. ‘207 . 3 ; ; s . 163
Silvester v. Cude, 1 M.S. 120 ‘ é 157
Skailes v. Blue Anchor Line, 80 L. J. 442; [1911] 1 K. B. 360; 103
LT. 741; 27T. L. BR. 119; 55S. J. 107; 4B.16. . . 84, 104

Slavin v. Train and Taylor, 49 §. L. R. 93; 5 B. 525; eee: O.R.167. 50
Smith v. Morrison, 5 B. 161 . a . 83
Table of Cases. XV

PAGE
Smith’s Dock Co. v, Readhead & Sons, Ltd. 81 L. J. 808; [1912] 2

K. B. 323; 28 T. L. R. 397; 5 B. 450; [1912] W. ©. B. 217. . 65

S. B. & O. B. v. Ewell, 5 B. 39 ‘ ‘ . 158

Southall v. Cheshire County News Co., f B. 251; ‘[1912] Ww. C.R.101, 155
Spence v. Baird, [1912] 8. 0. 343; 49 S. L. R. 278; 5 B. 542; [1912]

W.C.B.18 ‘ . 380
Standing v. Eastwood, 106 L. T. 477; 5 a 268 ; [1912] W. 0. B. "200 151
Stapleton v. Dinnington Main Colliery Co., 5 B. 445. . . i
Staveley Iron and Coal Co. v. Elson, 49 8. i RB. 623; 5 B.301; [i912]

W. C0. B. 228 . - 146
Stevens (A.) v. Insoles, 81 L. EA 47; [1912] 1 K. B. 36; "105 t T. 617;

5 B. 164; [1912] W.C.R-111 yg, ee
Stinton v. Brandon Gas Oo., 5 B. 426; [1912] Ww. 0. RB. 132. . » 55

“Swansea Vale” (Owners of) 9. Rive, 81 L. J. 672; [1912] A. C. 238 ;
488. L. RB. 1095; 104 L. T. 658; 27 T. L. RB. 440; 55 8. J. 497; 4
B. 298 ; [1912] W. C. B. 242; 12 Asp. M.C. 47 . ‘ 18

TamworrH Colliery Co. v. Hall, 81 L. J. 159; [1911] A. C. 665; 49
S. L. B. 626; 105 L. T. 449; 558. J. 615; 4 B. 107, 313; [1912]
W.C.R.79 . 98
Taylor v. L. & N. W.B., 81 L. J. 641; [1912] A.C. 242; 106 L. T.
354; 28 T. L.B.290; 568.0. 323; 5 B. 218; [1912] W.C.R.95 . 122,

 

143, 144, 166
Thomas v. Cory, 5 B. 5 . . ‘ , ‘ . . 160
———- v. Fairbairn, Lawson & Co.; 4 B. 195 é - 128
Thomson v. Flemington Coal Co., (1911 8. C. 823; 48 8. L. B. 740;

4 B. 406 . a : , é . 24
Thorburn v. Bedlington “Coal ‘Co., 5 B. 128 ‘ : - : 5 a 7
Tindall v. Great Northern Steam. Fishing Co. : a . . - 70
Tomalin v. Pearson, 2 B.1 . 5 ‘ 2
Tombs v. Bomford, 106 L. T. 823; 5 B. 338; [1912] W. C. B. 229 . 84
Trodden v. McLennard, 4 B.190 . : . 380
Tucker v. Oldbury Urban Council, 81 L. J. P. C. 167; [1912] 2 x B.

317; 106 L. T. 669; 5 B. 296; eee C.R. 238 =. ‘ . 154
Turner v. Bell, 4 B. 63 . é ‘ . : - 13865, 156, 166

v. Miller, 3B. 305 ‘ : : . : ‘ ‘ - 101
Victor Mill v. Shackleton, 81 L. J. 34; [1912] 1 K. B. 22; 105 L. T.

613; 5 B. 30; [1912] W. 0. R. 33 . 7 . . 147
“Victoria ” (Owners of) v. Barlow, 46 Ir. L. T. 260; 5 'B, 570 ; . 85
Waters v. Staveley Coal and Iron Co., 105 L. T. 119; 55 8. J. 579 ;

4 B. 303 . . : . ¢ - 40
Walton v. South Kirby Colliery Oo. ie GR its ey oe, TED
Warby v. Plaistowe, 4 B. 67 . ; . ‘i Bs wer ce i . 135
Ward v. Miles, 4 B. 182. . : . 130

‘Warner v. Couchman, 81 L. J. 45; [1911] 1 K. B. 361 ; [1912] A. 0.

35; 498. L. B. 681; 105 L. T. 676; 28 T. L. R.58; 56 S. J. 70;

5B. 177; [1912] W. C. R. 28. , . : : . 4, 25, 27
Warren v. Roxburgh, 106 L. T. 555; 5 B. 268 ‘ : ; ‘ . 162
Warwick 8.8. Co. v. Callaghan, 5B. 283. 4 ‘ ° ‘ . 117
Table of Cases.

 

PAGE
Watkins v. Guest, Keen and Nettlefold, 106 L. T. 818; 5 B. 307; oe

W.C.R. 151 «. ‘i . 16
Weighill v. South Hetton Coal Gas; 4 B. 141. a a . . 18, 44
Weirv.N.B.R. . 115
Westcott and Lawrence ‘Lines, Ltd. v. Pues, 5 B. 430; ‘[1912] Ww. C. R.

280. ‘ . ‘ 157
Wheelan v. Great Northern Sieani Fisheries Co., 2 B. 235 a ‘s . 69
Wheeler v. Dawson . : : . - ; A a ‘ . 157
White v, Harris, 4 B. 39 5 - : : ‘i ‘i i . 131

v. Wiseman, [1912] W. N. 216 ‘ é 103
Wilsons and Clyde Coal Co. v. Cairnduff, [1911] 8. ©. 647; 48 8. L. R. 500. --168
Winters v. Addie, 48S. L. R. 940; 5 B. 511. ‘ ‘ ‘ e TT
Wood v. Davies,5B,113.. ; : ‘ x - 10
Wright v. Kerregan, 45 Ir. L. T. 82; 4B. 432 ‘ ‘ 5 . 154

v, Lindsay, [1912] S. 0. 189; 498. L. B.210;5B.531. . 64

 
&
WORKMEN’S COMPENSATION APPEALS.
FOR YEARS 1910-11 AND 1911-12.

ARRANGEMENT OF SECTIONS OF AOT.

Section.

1. Liability of employers to workmen for injuries.

2. Time for taking proceedings.

3. Contracting out.

4. Sub-contracting.

5. Provision as to cases of bankruptcy of employer.

6. Remedies both against employer and stranger.

7. Application of Act to seamen.

8. Application of Act to industrial diseases.

9. Application to workmen in employment of Crown.
10. Appointment and remuneration of medical referees and arbitrators.
11. Detention of ships.

12. Returns as to compensation.
13. Definitions.
14, Special provisions as to Scotland.
15. Provisions as to existing contracts and schemes.
16. Commencement and repeal.
17. Short title.
ScHEDULES.

W.C.A 1
WORKMEN’S COMPENSATION ACT, 1906.
[6 Epw. 7. Cua. 58.]

An Act to consolidate and amend the Law with respect to Com-
pensation to Workmen for Injuries suffered in the course of

their Employment.
[21st December, 1906.]

Be it enacted by the King’s most Excellent Majesty, by and
with the advice and consent of the Lords Spiritual and Temporal,
and Commons, in this present Parliament assembled, and by the
authority of the same, as follows :—

SECTION 1.
Liapinity or Empitoyers to WorkMEN FoR InsuRIEs.
BEST. 1. 1.—(1) If in any employment personal injury by accident
Liability of arising out of and in the course of the employment is caused to

empl t . : : 5
paTaned the a workman, his employer shall, subject as herein-after mentioned,

injuries, be liable to pay compensation in accordance with the First

Schedule to this Act.
ANY EMPLOYMENT.—Jurisdiction.

SECT. 1 (1), Reading this sect. 1, especially as extended to seamen by

ony emai sect. 7, if will be seen that this Act is most general in its applica-
tion. At the same time, it is limited in its application to the
ambit of the United Kingdom. Thus it has been held not to
apply to a contractor employing a workman to help to build a
breakwater in Malta, Tomalin v. Pearson, nor to a mistress
occasionally taking over to Calais a charwoman who regularly
worked for her at Dover ; and recently in the case of Schwartz v.
Indiarubber, etc., Telegraph Works, where a workman was lost on
a ship when on his way to do work for his English employers
abroad, if was held his dependants were not entitled. Sect. 1
did not help them as he was not employed within the ambit of
the United Kingdom, nor did sect. 7, as he was not a member of
the crew.

New Contract of Service.

A rather important point as to the employment referred to in
this section was decided in the case of Noden v. Galloway. A
man injured his finger in 1902 which prevented his working as
Workmen's Compensation Appeals. 3

a riveter. His employers gave him light work as a caulker. SECT. 1 (1).
This he was able to do satisfactorily until 1910, when a pneumatic CUngia®
hammer was introduced, the vibration of which affected his

injured hand. The Court of Appeal held that there was a fresh

contract of service, and that the old accident was not an incident

of the new employment.

ACCIDENT.

In a recent Scotch case, Kelly v. Auchenlea Coal Co., sxet.1 (1).
the meaning of accident was fully discussed, though one would Accident.
hardly have thought there was much need for it on thefacts. A
miner in the course of his work fired a shot, which generated car-
bon monoxide, a most deadly poison, and then went to a distance.
He waited three minutes and then returned. The fumes, how-
ever, had not dispersed; he inhaled them and they caused pneu-
monia, which killed him. Most learned arguments were advanced
to prove that the man died from disease and not from accident,
but what seemed beyond discussion was that the man, not delibe-
rately, but accidentally, inhaled sufficient gas to kill himself. He
had before done something of the same sort and had suffered
from headache and nausea in consequence, but it was obvious
inhaling the amount he did was never intended, and his having
done so was a definite act at a definite time and in no way want-
ing in all the attributes that lawyers say pertain to an accident.
On the other hand, a porter in an infectious disease hospital
who alleged he had caught scarlet fever when cleaning out
the mortuary was not so successful, it neither being a disease
provided for by sect. 8, nor having the essentials of an accident
under this sect. 1 (1), Martin v. Manchester Corporation. So the
same result followed in Hvans v. Dodd. Here the surgeon
refused a man a certificate under sect. 8 that he was suffering
from an industrial disease, and he sought to recover as for an
accident. But having been injured by gradual poisoning, he
was held not entitled.

In the case of Sherwood v. Johnson, not yet reported, it was
sought to follow Brintons v. Turvey, and show that a kind

of gamekeeper who died from anthrax died from accident.
1—2
4

SECT. 1(1).
Accident.

Workmen's Compensation Appeals.

Apparently he caught the disease from a dog, which caught it
from being fed on a diseased horse. The man acted as a
veterinary surgeon to neighbouring farmers and used to get
for nothing in return the skins and bodies of animals dying
unnaturally, with which he used to feed five or six dogs of which
he had charge. Anthrax was not suspected or reported until he
died, and then it appears to have been somewhat prevalent.
It was powerfully argued that anthrax is a specific disease,
caught in a specific way—here from a specific dog—and on
a specific day, on all which points there was evidence. Though
the inference drawn from these facts by the arbitrator was
against the applicants, yet as such inference is a matter of law,
it was open to the Court of Appeal to draw a different one if
they would. Butthey would not. The Court were of opinion he
had handled four animals, any of which might have caused his
death, and that there was no evidence that it was due to this
particular dog. So, further, they were not satisfied it was an
accident within the rule above stated, and Kennedy, L.J.,
expressed the further doubt: ‘‘ If a vet. handles sick animals is
it fortuitous or untoward if he gets infected?” The strong
point in the applicants’ favour is that anthrax is due to a sudden
attack of bacillus and is not the result of gradual or cumulative
poisoning. But they could not locate such attack.

Since the great case of Clover and Clayton v. Hughes, which
we will more fully refer to under arising out of, the actual mean-
ing of accident has also been involved in two miscellaneous
cases relating to frost bite, and in both of these has been left
undetermined, as the cases have each gone off on another point,
viz., that in neither did the accident, if an accident, arise out
of the employment. The first case, Warner vy. Couchman, finally
decided by the House of Lords, was that of a journeyman baker
whose hand was frost bitten when driving his master’s cart and
delivering bread ; the second, that of Karemaker v. “‘ Corsican ”
(Owners of), was where a seaman suffered from frost bite when
at work on the ropes of the ship. In the first case, Fletcher
Moulton, L.J., differing from his brother judges who were in doubt
Workmen’s Compensation Appeals.

on the matter, and with whom the Lords agreed, was of opinion SECT. 1 (1)
that such frost bite was an accident, and that it satisfied the test Accent.
of a definite event at a definite time, and in this respect was to
be distinguished from the case of Eke v. Hart Dyke, where a man
became ill through working in drains and was held not to have
been injured by accident. There are several cases where injuries
caused by excessive heat have been held to have been caused by
accident, and therefore the converse would seem to be logical
that injury caused by excessive cold should be equally regarded
as injury by accident. But in the heat cases other elements
have been present than mere heat, and these have contributed
to bring the occurrence within the category of accidental, e.g.,
Morgan v. “ Zenaida” (Owners of), where a seaman who
complained of the heat was told to and did continue painting
in a particularly exposed position, and had sunstroke in con-
sequence, and Ismay v. Williamson, where the found fact on which
this decision was given was “ what killed him was a heat stroke
coming suddenly and unexpectedly upon him while at work.”
We must note that in every case the law is laid down on the basis
of the facts as found by the arbitrator, and not on what we might
think they were from the fanciful account of a mere descriptive

reporter. As to both these cases, see further under arising out
of, etc.

ACCIDENT.— Intentional Felonious Assault.

In Blake v. Head, a boy, employed by the respondent, who had
been in an asylum and was still dangerous, was, whilst raking
out ashes for the respondent’s wife, assaulted by the respondent,
who hit him on the head with a chopper. The arbitrator found
he had not been injured by accident and the Court of Appeal
agreed, on the grounds that a felonious act done by an employer
cannot by any possible straining of language be an accident
arising out of the employment. Whilst expressing regret for
the boy, they said his real remedy was damages for assault.
Had he brought such action he would have been in difficulties
with a jury, who might have taken the view the man was not
6

SECT. 1 (1).
Accident.

Assault by
Strikers.

Workmen's Compensation Appeals.

responsible for his actions. He had been told this and he had
taken the risk—a risk of the employment—deliberately. And
was it not pure chance he was where he was when the murderous
fit seized his master. A man is knocked down by a runaway
horse, surely he is injured by accident. He is stabbed by a
Malay running amok, is he also not injured by accident? He is
hit on the head by a madman rushing on him with a chopper, is
not that an accident? And if it is, his very employment that
requires him to be where that madman may suddenly rush on
him, when it does happen, does it not arise out of the employment?
In Murray v. Denholm & Co., a Scotch case, where a free worker
had been attacked by strikers, the Second Division declined to
follow Nisbet v. Rayne and Burn, where a bank cashier travelling
with money had been murdered, and decided that the accident
did not arise out of the employment, and were also of opinion
that injury by intentional violence is not injury by accident.

Consequent Results due to Unreasonable Conduct or other
Intervening Cause.

The law as to such cases seems easier to state than to apply.
Whatever a man’s condition and to whatever that condition is
due, a man must act reasonably, having regard to that condition.
A man has typhoid—is he to eat a beefsteak ? Or bronchitis—
is he to sleep in adamp bed? The answer is No, and in each
case he must do all that he reasonably can to perfect his
recovery, and this whether his condition is due to accident or
other cause. If he does so act reasonably—irrespective of whether
the result proves he acted for the best or not—it is clear that the
final consequence is as much due to the accident as if it had at
once manifested itself. On the other hand, if he acts unreason-
ably, taxes no care, the consequences are not due to the accident,
but his own folly. Of course the Court may find as a fact that
notwithstanding his want of care the same result would have
taken place even had he been reasonable and careful, as that the
typhoid or bronchitis instanced would have proved mortal in
any event, and then the accident may still be held the cause
Workmen's Compensation Appeals. 7

of consequences apparently most remote. In the Scotch case SECT. 1 (1).
of Dunnigan v. Cavan a man was injured and taken to the seen

7 Z i Results due to
hospital suffering from pneumonia. He stayed there three days unreasonable

and then insisted on being taken home, notwithstanding the ais
doctor’s warning that his so doing might endanger his life.
He persisted, with the result that he died two days afterwards.
The arbitrator found for the dependants. He gave as his
reason (if correctly reported) “that but for the accident Samuel
Dunnigan would not have died how and when he did die.’ This
was hardly the question, and on the appeal the Lord President
stated it more exactly. ‘‘ The true question on the merits here
is whether the man died from the accident or from a new cause
which was introduced, viz., his own foolish action. ... The
Sheriff and medical referee had to face that question ; and it is
not an easy question. We cannot tell with certainty what would
have happened had the man not left his bed at the time when he
did, we cannot say absolutely either that he would have died or
that he would have recovered. . . . The Sheriff has found asa
fact that the death resulted from the injury, and looking at this
fact—whether we would agree with him or not—I have no doubt
there was evidence on which he was justified in coming to the
conclusion which he has reached.”

A similar award was made in Thorburn v. Bedlington Coal Co.
Here a workman met with an accident which left him in a debili-
tated state. He then had influenza, followed by bronchitis, which
proved fatal, and because—as the arbitrator found—of his
debilitated condition resulting from the injury. The evidence
also was, bronchitis or no bronchitis, he could not have lived six
months. This evidence justified the award, apart from which, it
is difficult to see how the death was due to the accident.

In Humber Towing Co. v. Barclay a workman had his fore-
arm broken, and so badly set by a local bone-setter that it
incapacitated him. The bone-setter compromised a case
against himself for negligence by payment of 901. On applica-
tion for compensation the employers’ contention was that the
cause of the incapacity was not the accident, but the bad setting.
8

SECT. 1 (1).
Accident.

Results due
to unreason-
able conduct.

SECT. 1 (1).
Arising out of.

Workmen’s Compensation Appeals.

“Tn this case,” said Cozens-Hardy, M.R., “ we have been asked to
say not only that the employer is liable . . . for personal injury
by accident arising out of and in the course of the employment,
but that he is an insurer of the medical man, the chemist, and the
nurse, who attended the man, and is liable in the event of any of
them being guilty of gross negligence, which gross negligence
might be found as a fact to be the real cause of the dis-
ability. ...” As the point raised by the employers was the
correct one, and as the arbitrator had not decided it, simply
being content with finding the man had not been unreasonable
in refusing to have the bone broken and reset, the case was sent
back to him to definitely decide this issue.

ACCIDENT.—Consequent Results due to Prior Accident.

In the Scotch case of Borland v. Watson Gow, a stove-fitter,
rising from his work, found his knee injured. In fact, there
was rupture of the cartilage. But it seemed three years
previously he had injured his knee in the same way, and
had been compensated. The new respondents argued it was a
recrudescence of the old injury, not a fresh accident. It was for
them to prove this, which they had not done. In fact, it is the
case of a man being injured by accident, the accident being due to
his diseased condition, but none the less an accident for all that.

“ ARISING OUT OF AND IN THE COURSE OF.”

Introductory.

So important are these words and so numerous the decisions
on them that for a proper understanding of recent cages it will
be well to state the principles generally involved.

A double condition is to be found in these words. The
applicant must prove both that the accident arose out of the
employment and in the course of the employment. The words
are used conjunctively, not disjunctively, and are not to be used
as meaning out of, that is to say, in the course of. The applicant
must prove some causal relation between the employment and the
accident, as well as the fact of his having been actually employed.
And further, the burden of proof lies on him to establish his case,
Workmen’s Compensation Appeals.

and if the evidence is as consistent with one view of the facts as
another, or if no evidence be given, he does not discharge the
onus and cannot recover. But in the vast majority of the dis-
puted cases the facts to be proved are not proved directly, but are
only deduced from other facts proved in the case. This is well
illustrated by a quotation from “Henry VI.” by the Lord
President in Mackinnon v. Miller :—

“Who finds the heifer dead and bleeding fresh,
And sees fast by a butcher with an axe,
But will suspect ‘twas he that made the slaughter.”

Inference from Facts.

So it is as regards these inferred facts that appeals to higher
courts usually take place. The Court of Appeal is bound by
an arbitrator’s finding of fact if supported by any reasonable
evidence. They are only entitled to set it aside if there is no
reasonable evidence.

This, of course, only applies to the facts proved by the
evidence. As regards the fact to be inferred from such facts this
is a matter of law. On these the Court of Appeal is as much
entitled to express its opinion as the arbitrator himself. Thus,
in the quotation cited, the arbitrator might find the facts of the
heifer dead, etc., and infer as a fact it was not the butcher who
made the slaughter. On the same found facts the Court of
Appeal might infer it was.

With these few introductory remarks we will now consider the
recent decisions on these words, arising out of and in the course
of, taken as they stand together.

Questions involved.

In deciding whether an applicant is entitled under these words
the usual questions that arise are :—
(a) Was there in fact an accident at all, and if so, where?
(b) If there was an accident was the man substantially doing
what he was employed to do, or, as otherwise put, was he
acting within the sphere of his employment ?

9

SECT. 1 (1).
Arising out of.
10

SECT. 1 (1).
Arising out of.

Questions
involved.

Workmen's Compensation Appeals.

(c) Was there a causal relation between his employment
and his accident, or was it to his employment and
not to something outside of it, that his accident was
due?

This question really includes the next, but owing to its

importance we make it an independent one.

(d) Was the accident due to a danger special to the employ-
ment or to one common to the public in general ?

(e) Was the injury sustained due to the accident, if there was
an accident, or due to other conditions existing at the
time of the accident, e.g., disease ?

And first, as to (a), was there in fact an accident at all, and if so,
where ?

Accident, when presumed.

It is not in every case that direct evidence of the accident can
be given. The leading case, of which the Court of Appeal
almost takes judicial notice—it is so often cited relevantly or
irrelevantly—is that of Mitchell v. Glamorgan Coal Co. Here
a miner injured his finger, and died from blood poisoning. It
was unexplained how he injured it. Possibly he may have told
his wife or doctor, but their evidence would not be admissible
(see Sched. II. (4)). But it was proved he left home and reached
the mine with it all right, and that when he again reached home
it was crushed. These facts clearly warranted the inference he
had been injured by accident, and the further inference that it
was more probable the accident as described had occurred at his
work rather than on the road when returning home. This is
probably the most misunderstood case on the Act. It is quite
clear. It does not say one may guess whether there was or was
not an accident and decide on probabilities, but that if there is
evidence the inference there was an accident may be drawn from
it. Thus in several recent cases, Wood v. Davies, followed in
Howe v. Fernhill Colheries and Jenkins v. Standard Colliery Co.,
where colliers have died from blood poisoning caused by injuries
and it was not proved or to be inferred where they were occasioned,
Workmen’s Compensation Appeals. 11

the Court of Appeal has held it is not open to find in their favour sEcT. 1 (1).
simply because it was more probable the injuries had been caused Atising outof.
when they were at work than -when they were elsewhere, and in Pee
Howe’s case, Farwell, L.J., said, ‘“‘ Nobody knows there has been
an accident here.” He had been working in a 2 ft.6 in. seam and
had died from septic poisoning, caused by a scratch, but there
was no evidence connecting any scratch with the employment.

So also in Chandler v. G.W.R. Here a fireman cut his finger
before going to work, and alleged that when at work he
got the wound polluted with coal dust and oil, when blood
poisoning supervened. The medical evidence established that
there were several ways in which septic matter might have
entered into the wound apart from the coal dust and oil, and
that there was not even any particular probability in favour of
the blood poisoning having arisen from these latter causes, yet
the arbitrator found for him and made his award accordingly.
On appeal this was set aside, and Buckley, L.J., said:
“There is, in my opinion, no evidence to support this award.
To attribute the blood poisoning to the employment is at best
guess; and there are many possible sources of infection. That
is enough to dispose of this case; and if it was relevant (which
it was not), ii was upon the evidence a guess contrary to proba-
bilities.”

Stapleton v. The Dinnington Main Colliery Co. is a valuable case
in this class of accidents. Here the evidence was that a miner
complained of having been hurt, a thing the witness could see
was the case, and the witness went to the place where he had
been working and saw that a piece of coal three or four pounds
in weight had fallen there, and the doctor agreed from what she
saw that such a piece of coal falling on a man’s foot would cause
the injury complained of. On these facts it was practically
agreed there was evidence from which an arbitrator might rightly
infer the man had been injured in the course of and arising out
of his employment. This case was fought on the ground that
the wound which caused the tetanus which killed the man was
not the one spoken to by the doctor. The Court found it was.
12

SECT. 1 (1).
Arising out of.

Proof of
accident.

Workmen’s Compensation Appeals.

This part of the case is of no interest. What is of value is the
kind of evidence on which all parties seemed agreed an accident
could be inferred. In Euman v. Dalziel a man fell from a ladder.
He injured his ankle, but soon after died of appendicitis or peri-
tonitis, according to the certificate of death. It was a Scotch
case, and the arbitrator, who regarded it purely as a question of
fact, declined to state a case. However, he was ordered to do so
to raise the point was there any evidence showing that the death
was due to the accident.

Next as to (b). Was the man substantially doing what he was
employed to do; or as otherwise put, was he acting within the
sphere of his employment when he was injured ?

This question usually becomes material when the man injured
was at the time doing something he had been told not to do, or
something stupid, negligent or somewhat foreign to his employ-
ment. Then in such cases there is all the difference in the
world between a man’s doing something he was not employed to
do and doing something he was employed to do, but doing it in
a wrong way.

Sphere of Employment—Disobedience.

This distinction is well exemplified in the important case of
Harding v. Brynddu Colliery Co. Here a collier was set to drill
a hole from above a seam in order to draw off dangerous gases
which rendered the seam unsafe. In this work it is admittedly
difficult to judge whether the drill is going in the right direction,
and the man asked if he might go into the seam to see if it was
running straight and he was told, No! But he went all the
same and was suffocated in consequence. Here he was clearly
disobedient, but this did not alter the fact that though disobedient
he was still actively doing his best to do the very work he was
engaged to do, viz., drill the hole. The accident arose un-
doubtedly out of his trying to do such work, and as the disobedi-
ence was no defence, death having resulted, his employers were
held liable. There is a great difference between doing a right thing
Workmen's Compensation Appeals, 18

in a wrong way, or a way actually forbidden, and in doing SECT. 1 (1).
a thing wrong in itself, and therefore, though Buckley, L.J., dis- mores
agreed, it would seem this decision is on the whole warranted ™Ployment.
by the facts. The same conclusion was also arrived at in
Mawdsley v. West Leigh, where a man whose business it

was to oil machinery when it was stationary did so, though
forbidden, when it was in motion, and was killed. This

is further well illustrated by two Scotch cases. In a mine a

certain part became dangerous, and the usual notice to this

effect was put up. Notwithstanding this, a miner, wanting a

pick he had left there, went for it, and having a naked light in

his cap, it caused an explosion, and he was killed. The
arbitrator found against his dependants, but on appeal the Lord

President held that the man was in the course of his employment

doing a thing to further his master’s work, and not for any

purposes of his own, and though in his conduct he was flagrantly
disobedient, yet it could not alter the fact the accident arose out

of his employment (Conway v. Pumpherston Oil Co., Litd.).

At the same time, in the other case, where a miner went out

of his way to fire a shot, which was no business of his to do, and

which the rules of the mine required to be always done by one

man specially appointed in writing for the purpose, it was held

that the accident which resulted did not arise out of his
employment (Kerr v. Baird). On the other hand, it has been

held otherwise where a man rammed a cartridge preparatory to

blasting and it exploded (Joyce v. Wellingborough).

The Court had no difficulty with the case of Weighill v. South
Heaton Coal Co., Ltd. Here a miner employed to cut a
road through the coal, to increase his wages cut coal from a
finished part of the road seventy yards away. This undermined
the supports and caused a fall which killed him. Obviously
such conduct had nothing whatever {to do with the work he was
engaged to do, and therefore the accident didf{not arise out of his
employment. See also under Serious and; Wilful Misconduct,
Sect. 1 (2).

If we want another illustration of this class of‘case we have it
14

SECT. 1 (1).

Arising out
of—sphere of
employment.

Disobedience,

Workmen's Compensation Appeals.

in Parker v. Hambrook, not yet reported. Here a man was
employed to dig flints, but only where told. Owing to wet he
could not dig in such place so he went into a trench, where he
was forbidden to go, when the side fell in and killed him. He
was paid by the yard, and it was for his own benefit he chose to
work where he was not entitled to work. His case was not as
bad as that of Weighill, who practically fraudulently had tried
to get coal from a forbidden place, but still, as he did what he was
not employed to do, and also had been forbidden to do, the Court
found against him. It would have been an extremely interest-
ing case if he had been paid by the day and had gone solely to
further his employers’ interests. It would then have been so
near the line that whatever the arbitrator had found would have
probably been accepted. Still, we must remember the law in all
these cases is as well put by Cozens-Hardy, M.R., both in Harding’s
case and in this, when he says the question is: ‘Has the man
done an act outside the sphere of his employment, or has he in
doing an act within the sphere of his employment been guilty of
serious and wilful misconduct. If it be the former, he is not
entitled to recover ; if it be the latter, he is.”

Sphere of Employment—Colliery Rule Disregarded.

So also in Barnes v. Nunnery Colliery Co., where a boy in a
colliery at some distance from his work rode in a tub on an
endless rope to get to it and was killed, the applicants failed,
as riding in such tub had been expressly forbidden. Though
the rule was habitually disregarded, this did not any the more
alter the fact the act had nothing to do with the work the lad
was employed to do, and as Cozens-Hardy, M.R., put it, “We
must carefully distinguish between any negligent doing of what
was authorised and doing something wholly unauthorised.” So
in the House of Lords Lord Loreburn, L.C., perhaps thought the
case nearer the line than the other judges, though he would not
disagree. “An arbitrator ’—he said—“ has to ask himself, Was
the injury by accident caused by something reasonably incidental
to the employment, by some risk to which a workman, liable, like
Workmen's Compensation Appeals. 15

other men, to be careless and take short cuts, might be exposed sxcT. 1 (1).
in doing what he had to do.” So a similar decision was given A™sing out
of—sphere of

in Powell v. Brynddu Colliery Co. employment.

Sphere of Employment—aAct Foreign to Employment.

Asiley v. Evans, a House of Lords case, is very much on the
line. Here a train of two trucks pushed by an engine
overtook another train on the same metals and the two trains
ran buffer to buffer as if coupled. The brakesman of the rear
train tried to get on the first train, but slipped between the
buffers and was killed. There was no direct evidence why he
tried to board the first train, but there was evidence he would
shortly have to alight to move some points, and that it would
have been easier for him to alight from the front train,
which had steps, than from the rear train, which had none. The
arbitrator on these facts found for the dependants of the
deceased workman. The case is very near the line, and probably
whichever way the finding had been it would have been
accepted. The man was undoubtedly killed by accident in the
course of his employment. Then there was evidence he was
actively engaged in his duty, and though guilty of doing a
stupid thing there was evidence he had to move some points,
which he could more conveniently do from the front train, and
this was certainly some evidence from which the arbitrator could
infer the further fact he was still continuing in doing his duty
when he tried to pass from one truck to another. Hqually it
would seem he might have found such evidence did not
suggest such inference, but on the whole it would seem with
less reason. This was the view taken by Cozens-Hardy, M.R.:
“‘T cannot see any ground for supposing that this was an act
done by the deceased for his own will and pleasure or for any
other purpose or motive than to discharge, in, it may have been,
an improper mode, his duty as brakesman. . . .”

This case has now been approved by the House of Lords and
mostly for the reasons given. ‘It was indeed argued here...
that in going from the truck to the van he quitted his employ-
16

SECT. 1 (1).
Arising out
of—sphere of
employment.
Act foreign
to it,

Workmen’s Compensation Appeals.

ment, and that he was not employed to do what he did. The
answer is, that he was all the time doing what he was employed
to do, though in the wrong way,” per Lord Loreburn, L.C.

Lord Atkinson (dissentient), in a very strong judgment, took a
counter view of the evidence, which, in his opinion,as much
pointed to the man trying to get into the guard’s van to have a
chat with the brakesman as to do any special work of his own.
To this Lord Robson replied: “‘On the other hand the appellants
say, and it is of course possible, that the deceased may have
been getting into the brakes van merely to waste his time in the
society of the brakesman. That, however, would have been a
wrongful intention on his part, and as such it is not lightly to
be presumed against him. Where a workman is killed in the
course of his employment while engaged in some act reasonably
consistent with his master’s service, I think it requires some
more definite evidence than the appellants can suggest in this
case in order to found the inference that he was moved by a
wrongful intention.” In fact, so far as one can judge from the
reports, there was no evidence whatever, only pure guessing—
possibly justifiable guessing—to warrant such conclusion.

The Scotch Courts have gone one better on this case, for they
have held that where a man riding on a waggon dropped his
pipe and in jumping down to recover it fell and was killed,
his widow was entitled to recover (M‘Laughlin v. Anderson) ;
but in Revie v. Cumming, where a carter was employed to walk
with a lorry and put on the brakes when required, and chose to
ride instead with the driver, and when having to put them on
he had to jump down, and in doing so was injured, they held
he could not recover. Of course, in the former case the man’s
duty was to ride on the waggon, nor was his smoking anything
wrong for him todo. At the same time it is difficult to see that
it was part of his employment. Had he dropped a tool the case
would certainly have been clear.

So again the point has come up in Watkins v. Guest, Keen and
Netilefold. Here the employers provided a train for their men,
but fifty yards before it arrived at its station one of them tried to
Workmen’s Compensation Appeals. 17

ride on the footboard, with the result he fell and was injured. SECT. 1 (1).
This case will show how the Court agreeing on the law differed in ee aehtedt
their view of the facts to which it was to be applied. Cozens- ieenolen
Hardy, M.R., and Fletcher Moulton, L.J., held, substantially he to it.

was doing what he was employed to do, viz., being carried on the

train, and wilful misconduct being no reply, his employers were

liable. Buckley, L.J., held, substantially, he was doing what he

was not employed to do, viz., riding on the footboard, and there-

fore ought not to recover. Coertainly Harding v. Brynddu

Colliery Co. was a stronger case. There the man was equally
disobedient, but it was to further his masters’ interests, here it

was simply to further his own. In that case it would seem,
substantially, he did continue doing what he was employed to

do, here it would seem not.

Acting Unreasonably.

In Keyser v. Burdick the employers disputed liability on the
ground their workman had acted unreasonably. He was a
riveter working on a ship in dock. When he came on deck he
found the vessel was being removed toa dry dock, and was already
a short distance from the quay. The gangway had been removed
and there was no other way of getting ashore than by slipping
down a rope which a fellow-workman had safely attempted. When
he tried to follow, the rope gave way and he was injured. On
these facts the arbitrator found for him, and the Court of Appeal
confirmed his award. So in an Irish case where a seaman in
jumping on board his ship hurt himself: Kearon v. Kearon, 45
Ir. L. T. 96. Then we have the interesting Scotch case of
Halvorsen vy. Salvesen. Here a ship’s engineer, rightly on leave,
to get back to his ship, jumped on a lifeboat which required six
hands to manage, and tried with the rudder only to get to his
ship, a hundred yards off the shore. He was taken out to sea
and drowned. It was held the accident did not arise out of the
employment, the Lord President saying, “ Was the danger which
caused the accident a danger to which in the workman’s contract
with the employer he was naturally subjected?” As also Lord

W.0.As 2
18

SECT, 1 (1).
Arising out
of—sphere of
employment,
act foreign
to it.

Workmen’s Compensation Appeals.

Kinnear: “It was not one of the risks which his contract of
employment as seaman required him to take.”

(b) Continued. Was the man substantially doing what he was
employed to do ?

Considerations affecting Seamen.

Seamen actually at sea, unless deliberately doing something
foreign to their employment, are always acting in the course of
it, though it does not follow that everything they do arises out
of it as well. A deck hand going to the boiler room, where he
had no business whatever, and being there scalded might be held
disentitled either because he had temporarily quitted his employ-
ment or because the accident did not arise out of it. But this
will not affect the fact that a seaman’s employment divides
itself into periods of active duty and periods of leisure and that
both periods are contemplated by his contract of employment.
At the same time different considerations apply to both. If a
man is injured when on active duty there is little hesitation in
finding the injury also arose out of it. If, however, a man is
injured during his period of leisure, and though legitimately
amusing himself, as he is entitled to do and as the contract of
employment contemplates his doing, still there is great doubt
whether or no he will be able to recover, except in the case of a
grave disaster such as a shipwreck, collision, or explosion, or
some other accident more or less external to himself. However,
the two classes of case merge into one another, and we will
now deal with the question as it affects seamen generally.

The first case we must take notice of is that of “ Swansea
Vale” (Owners of) v. Rice, which was decided on the basis of the
last known thing the deceased was doing was a duty he had been
employed to do and a duty which might have taken him into
danger. Here the chief officer of a steam vessel fell overboard
between seven and eight a.m. The morning was fine and he
was on duty. No one saw him fall overboard. There was
evidence that during his watch he had felt giddy, gone below,
Workmen’s Compensation Appeals. 19

taken a dose of castor oil, and had then returned to his work on S=¢T. 1 (1).
deck. On these facts the arbitrator inferred that his death was aarti. of
due to accident, and that it arose out of and in the course of his pay re
employment. One fact was emphasised by Lord Alverstone : *°°™™
“One thing we do know here; whatever did happen, happened
while the man was on duty, on his watch.” So this fact, com-
bined with there being no reason to suggest either suicide or
murder, more than justified the conclusions arrived at by their
Lordships, but by what principle of law—other than that hinted at
by Lord Alverstone—this case is to be distinguished from Marshall
v. “Wild Rose” (Owners of), following Bender v. “ Zent” (Owners
of), and other cases fairly similar, does not appear. In the first
a sailor had gone on deck on a hot night and disappeared, and it
was found his widow had not discharged the onus of proving the
accident arose out of the employment. So in Bender’s Case,
when a ship wason the high seas ona calm day and the cook fell
overboard and was drowned, it was held it could not be inferred
the accident arose out of the employment. The House of Lords
declined to analyse the difference, and Lord Loreburn, L.C., said :
‘“My Lords, I am glad that the learned counsel who addressed
such concise and admirable arguments to your Lordships recog-
nised the true value of decided cases in connection with an
argument like this. Cases are really valuable in so far as they
contain principles of law. They are also of use of course to show
the way in which judges regard facts. But in that sense they
are only useful as illustrations. Judges are not laying down the
law when they are explaining their reasons for coming to a con-
clusion of fact, and it seems to me you have to decide each case
upon its own facts. Now, my Lords, the question here being
whether there is any evidence that justifies the county court
judge in arriving at the conclusion which he did, I must point
out that the difference between what is evidence of fact and what
is merely guessing at the fact is one that cannot be defined in
any formula that one can invent.”

Though little assistance is thus given by our highest tribunal,
yet we receive more guidance from other decisions where one prin-

2—2
20

SECT. 1 (1).
Arising out
of—sphere of
employment
as affecting
seamen.

Workmen’s Compensation Appeals.

ciple seems to emerge with considerable clearness and to operate
to distinguish one class of case from the other, and it is that
where a man is actually about his employer’s business and is
injured, it is a very legitimate inference the injury arose
out of the employment. The facts found will be: the man
actually doing his master’s work, and his being injured. From
these is inferred the further fact the injury arose out of what he
was doing, that is, arose out of his employment. This is an
inference that may be rebutted, but apart from such rebuttal the
conclusion is no mere guessing, but is in exactly the same
category as any other conclusion solely substantiated by circum-
stantial evidence. In the case of death each link in the chain
may need testing. Thus the actual employment may not be
proved by direct evidence, but can only be inferred from other facts
so proved. For example, a sailor returned to the deck, and was
there seen doing his duty ; then from these facts might be inferred
he continued doing it up to the time of the accident. So the
accident itself might have to be inferred from other facts for
want of direct evidence. Thus proof that a man was in good
health and spirits and was found drowned by the side of the vessel
might afford the legitimate inference he had not committed
suicide but had met his death by accident.

Two more cases of seamen missing on a voyage have also been
decided. In Leev. Stag Line, not yet reported, a fireman was last seen
working at the fire at 4.30, and was after that missing. They were
in the tropics, the temperature was 104°, and it was found to be
right for a fireman in such conditions to go on deck to get air so
as to do his work properly. The arbitrator found for him. The
Court of Appeal agreed. The man’s duty as much required
him to be on deck for air as at his fire. The weak point seems
to be there was no evidence that going on deck for air necessarily
or even incidentally involved his going into any danger, the
weather being fine, and it seemed pure guessing to say that any-
thing connected with his employment of attending fires and
getting fresh air had occasioned his death. It was not even
suggested the ladder on to deck took him into danger. In
Workmen’s Compensation Appeals. 21

the next case of Burwash v. Leyland, where the second cook SECT. 1 (1).
of a ship shortly before being missed had been seen at his ae

galley working, the Court held that the applicants had not taken crane.
the case out of the region of surmise. Here the ship was rolling seamen.
and the weather bad, but the difficulty of the dependants was to

get the cook in the course of his employment into a place of
danger. The galley was safe and there was no known necessity

for him to go into danger. Could he have been even got on the

open deck at all in the course of his duty considering the weather

the Court would have found for them. It was tried to show that

he had been unwell in the night and that going for necessary
purposes might take him into such danger, but the Court held

that this was only surmise, and with much unwillingness found
against the claim. For ourselves, seeing there was a bad sea on

and a man on ship is as much in the course of his employment
during his leisure as his active duty, and, if a cook, cannot
possibly live in his galley or his berth the whole twenty-four hours,

we should have liked to have seen the case fought on the broad

lines that his employment at such time was a very dangerous

one and he met his death because it was dangerous and for no

other reason, if being conceded that up to the last moment he

had been doing his duty and not playing the fool.

To any one who has followed the foregoing reasoning it will be
pretty obvious that a seaman, as in Cokolon v. “ Kentra” (Owners
of), who met with an accident on a voyage when fetching his
clothes to wash them at a reasonable time and in a reasonable
place was pretty certain to recover on the ground he was injured
when doing what he was employed to do. However, the point
was contested and we now have judicial authority thata seaman
is entitled to wash his clothes as well as himself.

(b) Continued. Was the man substantially doing what he was
employed to do ?

Ambit of Employment.

We have seen that a man meeting with an accident whilst
doing what he was employed to do, or acting as is said within the
22

SECT. 1 (1).
Arising out
of—ambit of
employment.

Workmen’s Compensation Appeals.

sphere of his employment, is usually entitled to recover. So if
the facts proved be that he was working within the ambit of his
employment, i.e., more or less on the scene of his duty, from such
facts may rightly be inferred he was doing what he was
employed to do. Referring to one or two of the older cases, we
have this as so inthe case of a man whose duty it was to start
machinery and then go out by the door and who was found
dead under some revolving shafting—McNicholas v. Dawson ;
of a man who was being carried from his work and who fell out of
@ carriage when apparently putting a basket on a rack—Pom/fret
v.L.éY.R.; and of a policeman whose duties took him all over
the company’s premises and who was killed on a siding—Grant
v. Glasgow and S. W. R. §So a recent case fairly illustrative of
these principles is that of Richardson v. “ Avonmore” (Owners
of). A mate acted as watchman and lived on board ship when
in dock. He was found drowned, and near his body on a jetty
some slight distance away there was some food he had obviously
been obtaining. It was also shown it was his duty and his
custom to attend to the mooring of the ship, which brought the
jetty within the ambit of his employment. These facts well
warranted the inference of the further fact the accident arose
out of the employment.

So a similar inference of fact was found in Furnival v. Johnson
Iron and Steel Co., where a workman went to get some tools
sharpened, a duty keeping him within the ambit of his
employment, was almost at once missed, and was found in the
canal by which he might naturally pass. There was evidence he
was young, healthy, and on good terms with his wife, and therefore
there was no reason to suggest suicide. So Farwell, L.J., pointed
out that the legal presumption is against crime, and therefore
against suicide. This, therefore, throws the burden of proof on
those who suggest suicide, as also murder.

A contrary conclusion was arrived at in Charvill v. Manser,
where nothing was known about a bargeman except that he was
found drowned in the river about 150 yards from his barge.
This was on a Sunday, and he had been last on the barge on the
Workmen’s Compensation Appeals. 28

Saturday preceding. So also in Mitchell v. “ Saxon” (Owners of), sEcT. 1 (1).
where a seaman went on shore at Hamburg, it was said, for food ria os
and was drowned, and there was nothing to show how or where employment.
he met his death except his cap being found on a jetty, which
hardly advanced the evidence at all. In these cases there were
no facts from which any inference could be drawn one way or
the other, and certainly not that the men met their death when
acting within the ambit of their employment, doing what they
were employed to do.
But what is the legitimate inference to be drawn when it
cannot be proved or inferred that a man though on the scene of
his duty was actually. about his master’s work? What is the
position then? What will be the facts found? A man who may
or may not have been about his master’s business is found dead.
Then it must be pure guessing to say his death arose out of his
employment.
When the man was obviously not doing his master’s work there
is no trouble, though once again difficult questions arise when
he was doing acts which, though not exactly work for his
master, were yet more or less essential to enable him to do such
work. These, however, form a new class of case, on which
there has been no decision hitherto, and which will demand
independent discussion as they occur.

(c) Was there a causal relation between his employment and his
accident, i.e., was it to his employment, and not to something outside
of it, that his accident was due.

Causal Relation.

To recover applicants must establish a causal relation between
the employment and the accident. The Courts have taken a fairly
liberal view of such requirement when a man has intended to act
in the interest of his master, but this will not justify a boy cleaning
machinery in motion when it was no part of his work to touch it
(Naylor v. Musgrave Spinning Co.), though in the somewhat similar
case of Greer v. Lindsay Thomson it was decided otherwise, nor an
attendant in a power-house who was injured in attempting to dust
24 Workmen’s Compensation Appeals.

SECT.1(1). a switchboard which he had been forbidden to touch (Jenkinson

ee vy. Harrison), and @ fortiori a woman who met her death through

relation. mere curiosity by trying to work a machine she had nothing
to do with (Cronin y. Silver), and a lad who through larking
started a machine and injured himself (Cole v. Evans): As well
also a baker who when the man in charge was absent himself tried
to start the engine which drove the machinery he used, and
was killed in doing so. He had not been employed to start the
engine, it was not in the sphere of his employment, and his
dependants could not recover (Marriott v. Brett). Nor can a so-
termed “ blackleg ” attacked by strikers (Murray v. Denholm).

So also in the case of drunkenness. In Frith v. “ Louisianian”
(Owners of) a sailor arrived on board in such a drunken state
that he was helpless like a log. Being killed, and the accident
being due to his being so drunk, it was held it did not arise out
of his employment. It was not his employment that in any way
caused his accident, but his own sottish condition.

Similarly in Rose v. Morrison, where one of a gang of men going
from one place to another stayed behind to relieve himself. He
went into a hoist, an admittedly improper place, and was killed.
It was held his employers were not responsible. ‘‘ The man had
no right to go into the place he did and to expose himself to a
wholly unnecessary risk”: per Cozens-Hardy, M.R. So a similar
decision was given in the Scotch case of Thomson v. Flemington
Coal Co.

(d) Was the accident due to a danger special to the employment
or to one common to the public in general.

Risk Not Specially Incident to Employment.

When a man is doing work that he was employed to do it is
not every accident which happens to him that of a necessity arises
out of the employment. The leading case is that of Andrew v.
Failsworth, where a man at his proper employment was killed by
lightning. Here he was exposed to no more risk than any other
member of the public, and it was decided his dependants could
not recover. On these lines we have now to consider the some-
Workmen’s Compensation Appeals. 25

what important case of Pierce v. The Provident Clothing and sECT.1 (1).
Supply Co., which is by no means as simple as it appears to be. pray bale
Here a collector for the company used a bicycle to visit their ait
customers. When doing so he was killed in a street accident.

The Court of Appeal, reversing the decision of the arbitrator,

found the accident arose out of as well as in the course of his
employment, and adopted the reasons given in the almost
identical Scotch case of McNeice v. Singer, decided by the

Court of Session. Here a salesman, also riding on his bicycle,

was kicked by a horse and injured. In this case the Lord
President held that street dangers were a risk incident to such
employment, and that he had suffered from such risk, and

that it arose out of the employment. A doubtful distinction is

to be found in the decision by the Irish Court of Appeal in

Greene v. Shaw. Here a herd employed to look after cattle upon

two farms usually rode a bicycle in going from one farm to

another. One evening, as he had mounted his bicycle for the

purpose of visiting one of the farms to see the cattle, a dog, his

own property, ran in his way, with the result that he was thrown

from the bicycle and fatally injured, and it was held that the

accident did not arise out of the employment. A slightly
ludicrous case is that of Peel v. Lawrence. A cotton worker

before commencing work tried to take off his sock and strained

his finger in doing so and sought compensation. The arbitrator

refused it, and the Court of Appeal dismissed the appeal. The

same thing could happen to any one going to work or going

to bed.

The difficulty involved in this class of case becomes more
apparent when we consider the next two. It will be remem-
bered that under Accident we have referred to the two cases
of Warner v. Couchman and Karemaker v. “ Corsican,” in
both of which compensation was sought to be recovered on
account of injuries caused by frost-bite. Without determining
whether such injuries could be held to have been caused
by accident, both cases were dismissed on the ground the
accident, if an accident, did not arise out of the employment.
26

SECT. 1 (1).
Arising out
of—risk not
special to

employment,

Workmen’s Compensation Appeals.

This is undoubtedly a very difficult point to determine, and
the case isan extremely interesting one to argue from both sides.
Thus it is clear excessive cold is not limited in its effects;
every one is liable to suffer from it, and it is not peculiar to
any particular employment. As put by Cozens-Hardy, M.R.,
“it is not enough for the applicant to say the ‘accident would not
have happened if I had not been engaged in that employment,
nor if I had not been in that particular place. He must go
further, and must say, ‘ The accident arose because of something
I was doing in the course of my employment, or because
I was exposed by the nature of my employment to some
peculiar danger.’”’ This, he was of opinion, could not be said
in the case of the baker simply going his round delivering
bread.

On, the other hand Fletcher Moulton, L.J., diss., was of opinion
it could. ‘The man’s employment required him to go his rounds
on this bitterly cold day and deliver the bread. . . . This involved
exposure to the right hand, and it was this exposure which
brought on the frost-bite.”” The finding of the arbitrator was
“there was nothing in the nature of the applicant’s employ-
ment which exposed him to more than the ordinary risk of
cold to which any person working in the open was exposed on
that day. He adds that one fact only was relied on, viz., that
he had to take off his right-hand glove in order to give
change, and that this, though probably convenient, was not
necessary.” But the learned judge’s point was that it was the
man’s employment that took him into the open, for if the
accident “was merely a consequence of the severity of the
weather to which persons in the locality, whether so employed or
not, were equally liable,” it might also be held not to arise out of
the employment. “The true issue,” he added, “could not be
better expressed than by the Irish Court of Appeal in Kelly
v. Kerry County Council, when dealing with the question arising
out of the death by lightning of a man working on the road.
They found that the accident did not arise out of the employment,
because there was no evidence that in following his employment
Workmen’s Compensation Appeals. 27

he ran any greater risk of being struck by lightning than any sECT. 1 (1).
other person within the area of the storm. But when a case At#ing out
arose of a man who by reason of his employment was exposed special to

: employment,
to the danger of lightning to a greater degree than any other
person within the area of the storm, this Court, in Andrew v.
Fatlsworth Industrial Society, held that the accident arose ‘out
of’ the employment.”

It will be observed that in all these cases the argument for
the employer was, the man was not exposed to accident more than
any other member of the public moving in similar circumstances,
and that in one case the argument was accepted and in the other
was not. What is the distinction? It certainly appears to us
as sound that if a man is going on his master’s business on a
bicycle and is knocked down, the accident arose out of the
employment; and if frost-bite is an accident, why not the same
conclusion? Is it there seems a want of direct causation?
Being knocked down is a direct act connected with the very work
itself, whilst one’s feeling as to the frost-bite is that it merely
happened during the employment and without any very particular
or necessary connection with it. No doubt the point is an
extremely difficult one, and probably cannot be better dealt with
than in the judgment of Collins, M.R., in Andrew v. Failsworth,
just referred to, where he says: “If there is, under particular
circumstances in a particular vocation, something appreciably
and substantially beyond the ordinary normal risk which ordinary
people run, and which is a necessary concomitant of the occupa-
tion the man is engaged in, then I am entitled to say that the
extra danger to which the man is exposed is something arising
out of his employment.” This is a very fine piece of judicial
distinguishing between cases just on the line and one falling one
side and one the other. Still, whether it absolutely covers these
facts must remain a matter of doubt.

Warner v. Couchman has now been approved by the House of
Lords. The Lords are particularly insistent on accepting the
finding of fact as made in the first instance by the arbitrator
whenever there is any evidence to warrant it. Then, referring
28

SECT. 1 (1).
Arising out
of—risk not
special to
employment.

Workmen’s Compensation Appeals.

to Fletcher Moulton, L.J.’s, judgment, they held they were
concluded by the fact found by the county court judge, the man
had not been so specially affected.

Andrew vy. Failsworth has again been followed in Davies v.
Gillespie, where similar facts had to be considered, and in the
Scotch case Robson v. Blakey, where a plumber in low health
was laying pipes in a trench on a hot day and succumbed to the
heat, and the Court again refused to find this was an accident
arising out of his employment. Lord Kinnear summed up the
position excellently as follows: “I only say in a word that I do
not think that this man was exposed by his employment to any
special risk to which other people were not liable, provided they
happened to be working in the open air on July 26, 1911.”

So the same reasoning disposed of the claim of the dependants
of the janitor of a school who when on a message for the head-
master was overcome by the heat, fell, and was killed (Rodger v.
Paisley School Board), and also of those in Butler v. Burton-on-
Trent Union, where the master of the union, seized with a fit of
coughing whilst sitting on the balustrade of a flight of steps,
fell over, and was killed. As was said by Cozens-Hardy, M.R.,
“We have heard an argument from counsel for the respondent
that it did arise out of the employment because it took place on
premises where Butler was engaged in working. If he was right
in this argument, the words in the Act providing that the
accident must arise ‘out of’ the employment might be omitted,
and the words providing that the accident should arise ‘in the
course of’ the employment alone be left. The provision that
the accident must be an accident arising out of the employment
has the meaning that the accident must arise out of some risk
reasonably incidental to the employment, in the sense that the
man who meets with the accident must have been exposed in the
course of his employment to some risk additional to those of
other members of the public.”

(ce) Was the injury sustained due to the accident, if there was an
accident, or due to other conditions existing at the time of the
accident, 6.g., disease.
Workmen’s Compensation Appeals. 29

The problems in this class of case mainly owe their origin to SECT. 1 (1).
the well-known case of Clover ¢ Clayton v. Hughes, which on ae
the face of it apparently seems to warrant the proposition that ple by

a man has only to fall dead when at work to entitle his depen- rn
dants to compensation in any event. But this is quite a mistake,
as many a subsequent applicant has found to his cost. In this
case no new proposition of law was advanced, it was simply the
application of existing law to a definite finding of fact. The law
was in no way novel, though the way the facts were viewed
certainly was. Here a man in the last stage of heart disease died
when screwing a nuton to a bolt. The logic of the decision was
preserved by the finding of fact that the screwing on of such nut
caused an extra strain, which extra strain ruptured the artery
which caused his death. The extra strain thus rupturing an
artery which was on the very verge of breaking was as much an
accident as if the extra strain which had ruptured it had
been the violent fight for life of a man suddenly overwhelmed by
a crushing avalanche. Only a question of degree. An accident
is no less an accident because most serious. A pin scratch is an
accident; its usual result is a temporary smart, but if the man
suffer from diabetes it may easily kill him. But this does not
make the scratch any less an accident. But in relying on this
case it must not be forgotten there was the finding of fact, the
extra strain which ruptured the artery was actually caused by
the work which the man was actually doing. The chain was
complete, but it took a brilliant lawyer as arbitrator to make it
complete, and where it is not complete the applicants must
fail. In Barnabas v. Bersham Colliery Co. a miner died
of apoplexy in a mine; no one was in a position to see him,
but they could hear him working and whistling. They heard him
ask the time. They knew what he was doing. He was building a
pack, work involving considerable exertion. All of a sudden he
ceased work and vomiting was heard. After a time some one
went to look and found him in a fit of apoplexy. On these facts
it was held that there was no evidence that he was seized when
incurring a strain. It was simply guessing to find that the
30

SECT. 1 (1).
Arising out
of—agegra-
vated by
disease,

Workmen’s Compensation Appeals.

death was more due to an accident than to natural causes. As
the man was a great chewer, Fletcher Moulton, L.J., suggested it
might well be that a little of the saliva of the chew went the wrong
way; the workman coughed and apoplexy followed. In giving
judgment, Cozens-Hardy, M.R., said: ‘‘An applicant has thrown
upon him the burden of proving that his injuries arose from an
accident that arose out of and in the course of his employment.
The applicant has the burden of proving this not necessarily by
direct evidence ; for it is quite well established that inferences of
fact may be drawn by the Court. But when the facts are such that
it is equally probable that there was not an accident arising out of
and in the course of the employment, then he cannot succeed.”
This view of the law was upheld in the House of Lords, where
Lord Loreburn, L.C., said : ‘‘ The plaintiff must prove his case ; and
although he may establish a state of facts which lead one to think
that his version is quite a possible version of what took place,
he must do something more than show a state of facts which is
consistent either with one view or another view.” For the same
reasons a similar result was arrived at in Perry v. Ocean Coal. Co.
Clover & Clayton v. Hughes was unsuccessfully relied on in
Spence v. Baird, where the arbitrator declined to find an accident
arising out of the employment had taken place through a heart
strain, but was followed in the case of Trodden v. M‘Lennard.

Here a watchman on a vessel had to use a rope ladder. When
on it, the ladder gave a sudden twist and he was heard to shout,

“‘T’m done for.” He fell into the water and was picked up dead.
The evidence showed his heart was ina bad state and, medically,
it seemed probable he died before reaching the water. It was
shown that the sudden twist of the rope was enough to cause an
extra strain and so bring on such heart failure. On these facts
the arbitrator found for the applicants and was approved by
the Court of Appeal.

Injuries Aggravated by Disease and Causal Relation.

If an undoubted accident occurs it is equally incumbent
on the applicant to prove the connection between such accident
Workmen's Compensation Appeals.

and the resulting injuries. Thus take the case of Honor v.
Painter. Here a carman fell from his delivery van and sus-
tained injuries. He died three weeks later. No evidence was
produced to show the connection between the accident and
the death, and the finding of the arbitrator in favour of the
dependants was set aside. “The man,” said Cozens-Hardy, M.R.,
“was taken away to the hospital after having fallen off his cart in
what looked like a fiti—it may not have been—and he died three
weeks later. The dependants have to make out that the death
was due to an accident. There was no medical evidence as to
what he died from and none of the witnesses were in a position
to say that his death was due to the fall from the cart and it
seems impossible for us to get over that. We said yesterday,
and it is not necessary that we should say it again, that the
applicant in cases of this kind must not merely ask the Court to
guess that the accident was the cause of death, must not merely
say if is probable it was, but must either prove it by evidence or
by legitimate inference to be drawn from the facts proved or
admitted. There is no evidence, and there is nothing which
justifies the Court in drawing an inference here. It is quite
possible, and quite probable, that the death which this man met
with three weeks after the fall from the cart was not in any
way due to the accident, but may have been due to other
physical conditions.” So for the same reasons a similar
conclusion was arrived at in the case of Browne v. Kidman,
where the facts were as nearly identical as facts can be.
There was the same unexplained fall from a hay-cart with, in
addition, the doctor’s evidence that the man’s death was
probably due to cerebral disease and syncope. Again the
appeal of the employers was allowed. Again the Court
laid down: “There must be something more than surmise,
conjecture or guess, something which gives the actual
cause.” So in Farmer v. Stafford a man at work called
out that he had hurt his back. He was taken home com-
plaining of pains in his back and stomach. He died a week
later of intestinal obstruction, and there was some evidence of

31

SECT. 1 (1).
Arising out
of—disease
and causal
relation.
32

SECT, 1 (1).

Arising out
of—disease

and causal

relation.

Workmen’s Compensation Appeals.

previous illnesses and previous pains in the stomach. On these
facts the arbitrator found that it was not proved to what the fatal
obstruction was due, and found for the employers, and in this
was upheld by the Court of Appeal. Equally when a workman
collapsed at work and died from angina pectoris, the Court found
the dependants had not proved the accident arose out of the
employment. Here the facts certainly approximated very closely
to those of Clover & Clayton v. Hughes, supra. The deceased,
an elderly man, had been helping to push trucks up an incline and
to then tumble them off the rails, and this finished, had begun
shaping props. Whilst thus engaged he was taken ill and had to
stop. After resting, he went home and died the same evening of
angina pectoris. The arbitrator found the man had over-exerted
himself pushing or tumbling a truck, and had thus brought on
the heart attack, and found for the dependants. But the Court of
Appeal, assuming an accident, were not satisfied there was anything
in the circumstances of the work to justify the inference that the
death arose out of the employment. Cozens-Hardy, M.R., said
the evidence of the doctors may be summarised thus :—‘ The
arteries were all in a bad condition of long standing. Angina
pectoris may be brought on in a variety of ways. It may be due
to circumstances which can scarcely be called an accident at all.
A man walking in a strong wind may meet with death from
angina pectoris. It may be due to walking upstairs or to very
slight exertion. It does not always come on immediately after
exertion. You cannot predicate that exertion will immediately
or within any definite time result in the attack. In that state of
things, it is impossible to say that this angina was due to the not
unduly heavy work the man had done that day. It may be due
to some other cause—exertion elsewhere or at some other time.
It is impossible to say that the test laid down in Barnabas’ Case
has been satisfied. The onus of proof has not been discharged,
the learned judge below was not entitled to speculate, which is
what, with great respect, he has done” (Hawkins v. Powells
Tillery Steam Coal Co., followed in Beaumont v. Underground
Electric Railways).
Workmen’s Compensation Appeals. 33

Similar considerations warranted the conclusion in Ashley y. SECT. 1 (1).
Lilleshall Co., Ltd., where death was undoubtedly due to Bright’s #7 iS, ot
disease and where at most the acceleration of death was due aa
to the accident if an accident.

The case of Groves v. Burroughes & Watts hardly needs
mentioning. A man had a bad wound, scarred over. In exerting
himself he broke it open; profuse bleeding followed, resulting in

death. The dependants were clearly entitled to recover.

IN THE COURSE OF.

We have thus dealt with the cases more or less pertinent to
the phrase as a whole and have tried to elucidate the questions
usually involved in them. When we come to consider each limb
of the sentence separately we find different reasoning governs
them. As regards the words arising out of there can be no
question as to them which does not involve the words in the
course of as well, though the contrary proposition does not hold.
Therefore most of what we have to say on arising out of has
already been said when dealing with the phrase as a whole; but
this is not so as regards in the cowrse of, concerning which some
few more cases have to be discussed and considered.

Volunteer.

If 2 man does an act not contemplated by his contract of
service he does it as a volunteer, and even though his act be
most meritorious and useful, still he cannot recover compensa-
tion if injured. Thus a patient in a hospital had to be treated
by X-rays. There being no one experienced in their use, the
house surgeon allowed himself to be experimented upon and was
injured. Without deciding whether he was a servant or not, it
was held that the accident did not arise out of his employment
(Curtis v. Talbot), This case seems clear, but not so clear the case
where a “ workman,” sent on an errand, slipped on a banana skin,
fell, and broke his thigh. Thus in Smith v. Morrison the master
sent his servant to a local post office, when, being too late he
hurried on to the general post office, slipping and hurting himself

W.C.A. 3
34

SECT. 1 (1).
In the course

Workmen's Compensation Appeals.

as mentioned. The arbitrator held, slipping on a banana skin was

of—volunteer. NOt a danger especially incident to him in his employment, and

therefore found the accident did not arise out of it, and added
if he thought it did not arise out of his employment when going
to a place where he had been sent, it was an @ fortiori case that
it did not arise out of it when going to a place to which he
had not been sent. This the Court of Appeal took as a
finding of fact that the man when injured was virtually acting as
a volunteer, per Farwell, L.J., and dismissed the appeal on the
ground that the accident did not arise in the course of the
employment. This decision is hardly satisfactory. The primary
business of the man was to do his master’s errand, and whether
at one post office or another was hardly material. If he had
returned without doing it he would have been rightly blamed as
a simpleton without an ounce of initiative. However, there is a
strong tendency for the moment for the Court of Appeal to
require men who want compensation for accident to do the thing
they are told, and in the way they are told. Perhaps this is
right. If masters are to be responsible in serious amounts for
mishaps to their men they may well ask to be consulted, not only
as to what is to be done but the manner also in which it is to be
done. Still this hardly applies to a simple duty like doing an
errand at one place when unable to do it at another. So the fact
the servant had to hurry because of his employment certainly
made his risk of slipping on a banana skin greater than that of
one of the ordinary public, and on the whole we think the man had
somewhat hard measure dealt out to him in failing to recover.
In Henneberry v. Doyle (No. 2), where a barrow man employed by
Doyle to help to load coal on a ship exchanged places with a tipper
employed by the ship, the Court held he was not a volunteer
because he acted in Doyle’s interests, who was familiar with the
work generally and had never prohibited such changing. At
the same time they found there was no custom to change,
and as the workman alleged this they made each side pay
their own costs. Before this case is treated as an authority,
it is well to observe the Irish Court held the interchange of
Workmen’s Compensation Appeals. 35

servants took place with the knowledge or atleast the acquiescence SECT 1 (1).

In the course
of the employer. of—volunteer,

Coming to or Leaving Work.

The Courts have repeatedly laid down that workmen are not
within the course of their employment simply because they are
coming to or leaving their work. This view was held to govern
the case of Poulton v. Kelsall. Here during a strike, on being
promised indemnity against injury, a storekeeper acted as
carter and on his way home was severely injured. No doubt
the case must turn on the actual contract made between the
parties, but on appeal the Court held that the accident (query
was it an accident?) did not arise in the course of the employ-
ment. “It is well established that a man is not within the
protection of the Act when he goes from his master’s place—
from the factory or wherever it may be—to his home”: Cozens-
Hardy, M.R. Of course the man had rights under,his contract of
indemnity, and probably the case was fought by the master’s
insurers.

Duration and Suspension of Employment.

_ In several cases this point has been involved. In Molloy v.
South Wales Anthracite Colliery Co., a workman a few days after
leaving his work, according to the employers, was given leave to
go down into the mine to fetch his tools, but, according to
his evidence, was ordered to do so. Doing this he was injured.
The arbitrator’s note agreed with the evidence of the employers,
his award with that of the man. On this it was held
he was entitled, and the Court of Appeal were unable to do
anything to help the employers. Why they could do nothing
does not appear, nor does it appear very clearly how orders
which the man could or could not obey as he liked could affect
the legal position. The employment ended, his right was an
action in trover if the company would not return his tools or
3—2
36

SECT. 1 (1).

In the course
of—duration
and suspen-
sion of
employment,

Workmen’s Compensation Appeals.

let him get them. In Phillips v. Williams, a collier had a
dispute about his wages and was referred to the under-manager,
who could be seen on the following Monday. On that day he
did not go to work, but went in his Sunday clothes to see the
manager, and on his objection not being satisfied he declined to
work any longer. On leaving, and before quitting the premises,
he was knocked down and killed. The arbitrator found for the
employers, and the Court of Appeal agreed with him, because he
was there in his own interests and not in those of his master.
A more difficult case to follow is that of Riley v. Holland,
where a mill hand was injured when fetching her wages after
her employment was ended. It was the usage for wages to
be made up to the preceding Wednesday and paid on the Friday.
Her employment terminated on the Wednesday, but, as usual,
she had to go on Friday for her money. On these facts the
Court was divided as to whether the accident arose out of and in
the course of the employment. Cozens-Hardy, M.R., thought “ it
is a fallacy to assume that the employment ceases necessarily
when actual work ceases. . . . Though her employment was
at an end on Wednesday night in the sense that she had ceased
work under the contract, yet the employment continued because
of the obligation of the employers to her arising out of the
employment and continuing until Friday afternoon.” On the
other hand, Buckley, L.J., dissenting, held on the facts the employ-
ment had come to an end, for “ when the last obligation of service
to be rendered and accepted had been discharged and all that
remains is a debt from the master to the servant for the wages
of service, employment, I think, is over, and the only relation is
that of debtor and creditor.” This seems sound law, but does it
quite cover the facts, for really was not fetching the wages an
incident of the employment, part of the original contract between
the parties, and was the employment really ended for all pur-
poses so long as such incident remained outstanding? If, then,
so far the employment was not ended, and if in thus fetching
the wages the accident happened, did it not both arise out of the
employment and in the course of it ?
Workmen’s Compensation Appeals. 37

Suspension of Employment in the Case of Seamen. SECT. 1 (1).
The view taken by the Court of Appeal has been that, when goat

sailors go ashore for purposes of their own, or having gone on aalvulak
shore for purposes connected with their employment remain on ag
shore for purposes of their own, the employment must for such

period be regarded as suspended. No doubt the contractual
relation between the parties is usually for a term, but there is no

reason why such relation should not temporarily be interrupted by

mutual consent whether express or implied. In Moore v. Man-

chester Liners, Fletcher Moulton, L.J., in a dissentient judgment,
ultimately approved by the House of Lords, expressed the

view that as long as sailors went ashore with leave there was

no break. This view was not particularly material, as the case

turned on whether the accident should be regarded as arising out

of the employment. The very discussion of this assumed that it

must have been in the course of the employment, and whether

this was due to the employment having been resumed or never sus-
pended, the effect would be the same. In fact this applies to all the

cases, as each has been decided on the ground that the accident did

or did not arise out of the employment, and, as Farwell, L.J., neatly

put it in Kitchenham v. S.S. “ Johannesburg,” “ Many accidents

occur in the course of but not out of the employment, but

I am unable to think of any that could arise out of and not

also in the course of the employment.” For this reason

the point has never been fought out as the point on which a

case turned, but since the decision in the House of Lords in the

cases of Kttchenham v. S.S. ‘“ Johannesburg,” and in Fletcher
(formerly Hewitt) v. S.S. “ Duchess,” it must now be con-
sidered covered by authority that when seamen go ashore

with leave there is no suspension of the employment. In

both cases the judgment of the Court of Appeal was sup-
ported. In Kitchenham’s Case a seaman had been ashore with

leave, was returning to his ship, was seen going on the quay,

but was not seen to board the gangway, nor was there any
evidence that he reached it. Simply a splash was heard,

there was a cry of ‘“‘man overboard,” and he was drowned before
38

SECT. 1 (1).

In the course
of—sus-
pension of
employment
in case of
seamen,

Workmen’s Compensation Appeals.

he could be rescued. The Lord Chancellor delivered the judg-
ment agreed to by all the Lords: “In the present case
we are to say, first, Was this accident in the course of
the employment? I think it was. The return of the man to his
ship was in the course of his employment. We are next to say
whether the accident arose out of his employment. I think not.
Upon the finding of the county court judge, which he states
while at the same time giving his view of the law, I think it
arose from a risk common to every one, namely, falling from a
quay into the water, and was not specially connected with the
man’s employment.” Again, in Fletcher's case a captain left a
ship and went to an hotel 100 yards from the quay. On
returning, he hailed his ship for a boat, but before it reached him
he fell into the water and was drowned. ‘The evidence was
equally consistent with his having gone ashore for his own pur-
poses as for purposes connected with his duties. Again Lord
Loreburn, L.C., delivered the judgment, with which the other Lords
agreed: “My Lords, the question argued before your Lordships
was, that this accident, which proved fatal to the unfortunate
master of the ship, arose out of his employment. He fell over
the quay into the water when waiting to return to his ship.
It was not established that he had to go ashore on the ship’s
business. I think that the risk from which he perished was not
one specially connected with his employment such as might be
a risk from crossing a plank or a gangway leading to the ship
or going in a boat to the ship. In these circumstances I think
that the conclusion at which the Court of Appeal arrived was
right and that this appeal ought to be dismissed.” On the
question of arising out of apart from in the course of the
employment, these decisions are extremely useful. Instead of
the inquiry, Was this man on a ladder or on his ship? the Lord
Chancellor took the broad, commonsense view that the accident
was not one specially connected with the employment, and was a
risk common to any one having business on a quay.

A very similar case following this is Dizon v.“ Ambient” (Owners
of). The dependants of a fireman who was drowned when return-
Workmen's Compensation Appeals. 39

‘ing to his ship tried to strengthen it by showing he had to feed SECT. 1 (1).
himself and had gone on shore to buy food. But the decision henag
was the same. We thus see we cannot altogether press to its on of

if _ employment
logical conclusion the fact that the accident took place in in case of

the course of the employment. One would think he might argue ae
that if in the course of his employment a man did an act for no
purpose of his own, but solely for purposes of his employment,
that such an act arose out of hisemployment. If in the course
of his employment a man is in one place and for purposes of
his employer he is trying to get to another, it would seem such
trying would be an act arising out of the employment. If then
he was injured it would be a question, Was the accident due to cir-
cumstances peculiar to himself or to a risk common to the public
at large? However, all these cases have been decided exactly as
they would have been had it been held the employment in each
instance had been suspended and had not been resumed when
the accident happened. So the theory of suspension of employ-
ment is so general to the whole of the Act as hitherto interpreted
that it-seems a pity it should have been invaded. Those wishing
to contest the invasion cannot do better than study the apparently
unanswerable argument of Farwell, L.J., in Kitchenham’s Case, to
which we have before referred.

Here we should also refer to the case of Biggart v. “ Minnesota,”
(Owners of), where a seaman went ashore with leave. When he
would have returned to his ship he found it had been removed
to another part of the dock. Going there he was knocked down
by a dock train. The arbitrator and Court found against him,
the man was simply returning to his work and had not got there.
If in fact there was no suspension of employment in law and the
accident arose in the course of his employment, then this case
furnishes a good example of the above remarks, showing the
difficulty of finding the accident did not also arise out of the
employment, If the exigencies of his employment require a
man to go from one part of a dock to another and on a route
specially exposed to danger, is it not arguable such a man
suffered from a risk peculiar to his employment and not common
40

SECT. 1 (1).

In the course
of—suspen-
sion of
employment
in case of
seamen,

Workmen’s Compensation Appeals.

to the public at large? However on the facts as a question of
first impression the decision seems unassailable.

The case of Leach v. Oakley needs no comment. A seaman
with leave had gone on shore for his own purposes. He was
returning, and to do so had to pass over a gangway between his
ship and another. The gangway gave way and he was drowned.
On any view his employers seem rightly to have been made liable.

In Peters v. “ Argol” (Owners of), implied leave was presumed
in the case of a seaman who went on shore when the ship was in
port and he had no duty to remain on board. It was also held
that the fact that the evidence as to the implied leave was given
by a witness recalled after the case had been closed did not
justify an objection to its being used.

Facilities for Coming to or Leaving Work.

A long string of authorities in the Court of Appeal received
their approval in the House of Lords in the case of Walters v.
Staveley Coal and Iron Co. In this case the respondents per-
mitted their men to use a short cut to their work over a foot-
path that belonged to them. On passing over it a workman
was injured, and he sought compensation on the grounds that
the path was provided by the employers for their men’s use, and
that when he was injured on it his injury arose out of and in the
course of his employment. So to bring his case within Cremins
v. Guest, he alleged contract. In this case a mining company
had provided a train for their men, and in a rush one of them had
been pushed off the platform and killed. Cozens-Hardy, M.R., found
the company liable, and said he based his judgment on the implied
contract to provide such carriage. But in Walter’s Case neither the
Court of Appeal nor the House of Lords could find any such con-
tract, and held that there was only leave and licence to use the
path if the men chose, and that they could reach the scene of their
employment—which the path was not—in any way they pleased.’
In Gilmour v. Dorman and M’Laren v. Caledonian Railway the
facts were very similar and the result was the same.

A similar question arose in the case of Parker v. Pont.
Workmen's Compensation Appeals. 41

Here a farm labourer, working on F. farm, wished to see his sECT. 1. (1).

employer, who lived near K. farm, and to go there tried to get on bere red

one of the empty dung-carts to havea ride part of the way. As he for coming to
or leaving

was doing so the horse started and he was thrown to the ground work.
and injured. It was held it was no part of his contract of service
to use the cart and to unnecessarily add to the risk of his
employer. The same point came up in the House of Lords in
Pope v. Hill's Plymouth Co. Here a workman, on his way home
over a route across his master’s property, which he was allowed
to use, tried to get into a tram moving up an incline, and
was killed in the attempt, there being a regulation that no
one except those in charge of a tram should, without special
leave, ride on it when moving on an incline; and in giving
judgment Lord Loreburn, L.C., said: “The Court of Appeal
decided that this accident did not arise out of the employment
of the deceased man. I agree in that view. The risk which the
unfortunate man ran, which ended fatally for him, was not a risk
belonging to or connected with what he had to do in fulfilling his
service; which is the same thing as saying that it was not
incidental to his employment.”

(2) Provided that— SECT. 1 (2)
(a) The employer shall not be liable under this Act in respect (@).

of any injury which does not disable the workman Disabled one
for a period of at least one week from earning full wages
at the work at which he was employed :

(b) When the injury was caused by the personal negligence SECT. 1 (2)
or wilful act of the employer or of some person for whose
act or default the employer is responsible, nothing in this Saar
Act shall affect any civil liability of the employer, but *™"°"*
in that case the workman may, at his option, either
claim compensation under this Act or take proceedings
independently of this Act; but the employer shall
not be liable to pay compensation for injury to a work-
man by accident arising out of and in the course of the
employment both independently of and also under this
Act, and shall not be liable to any proceedings inde-
pendently of this Act, except in case of such personal
negligence or wilful act as aforesaid.
42,
SECT. 1 (2
().

Alternative
remedies,

Dependants
“independent
claim,

Workmen’s Compensation Appeals.

PROCEEDINGS INDEPENDENT OF ACT.

This section preserves to a workman his rights against his
employer other than under the Act, with the proviso, a man
shall not be paid twice. But what the Courts seem determined
upon is that parties who can agree and want to agree shall not
agree outside the Act, and so once and for all settle their
differences to their mutual satisfaction. As for this section,
any deliberate intent to rely on it is to be deemed fraudulent,
whilst its only use seems to be to catch tripping the innocent
and unwary. Why the State is to act nurse to people who
do not want nursing, to people who are competently advised by
competent solicitors, is difficult to understand, but such seems
the case. We can all manage other people’s affairs so much
better than they can themselves. In Howell v. Bradford, for the
very purpose of avoiding the benevolence of the Act,—and why
parties should not seek to avoid its benevolence one fails to see—
an employer and his workman agreed to settle for damages
instead of compensation. The whole matter seems straight as
could be. The man was well advised by his own solicitor, and
with his approval he elected to enforce his rights under the
Employers’ Liability Act, 1880, and properly settled for 841. 12s.
So that there should be no doubt about his understanding
exactly what he did, a receipt as follows was written out and
signed by him personally: ‘‘The above discharge has been
read over by me or to me, and [I fully understand that by
electing to receive compensation under the Employers’ Liability
Act, 1880, no claim can hereafter be brought under the
Workmen’s Compensation Act, 1906.” This receipt was stamped
with a penny stamp, and was witnessed by his doctor and the
elerk to his own solicitors.

Yet on these facts the arbitrator found there had been no
bond fide exercise of the option, and accordingly when the
dependants claimed compensation under the Act—for under the
Act their rights are independent of and not derivative from
the workman through whom they claim, and, may be, the very
intention of settling under the Employers’ Liability Act was to
Workmen’s Compensation Appeals. 43

get rid of their rights, as both parties were perfectly entitled to SECT. 1 (2)
do—he found for them in a further sum, which was about aS aisnative
flagrant a case of being charitable with other people’s money remedies.
as has ever been recorded. As reported, what tittle of evidence
was there that the settlement was not bond fide? ‘I am told,”
said Cozens-Hardy, M.R., in the Court of Appeal, “that it has
been held, and I agree, that if a workman makes his claim
under one Act or the other, and the claim is paid, that he has
then taken proceedings. But that was not what had taken
place here, because there had been no claim in proceedings
under either Act.” How this conclusion harmonises with the
fact that 841. 12s. had actually been paid is difficult to under-
stand. When damages are involved there may be claims without
payment, but whoever heard of payment without a claim ?

The case of Hawkes v. Cole was perhaps a colourable device
to evade the Act, as negotiations were carried on under it,
and only at the last moment was a receipt given under the
Employers’ Liability Act, and in that case Cozens-Hardy, M.R.,
said he hoped such methods of evading the Act would not
become general. Certainly not by such methods, but why not
generally, as he seems to suggest? Here is not the place to
discuss the merits of an Act which has probably done more
harm to the honest worker than any other Act ever placed
on the statute-book. The old, the infirm, the injured are all
penalised by the insane clause against contracting out, and as
regards cost, there is not an insurance company but will tell
you it has had to double and treble its premiums because of
the frauds they are subjected to. And who in the end has to find
the extra premiums? The master? the public? No, but the
honest worker. Why have wages been stationary the last few
years in so many trades. Because what a man receives in doles
he loses in cash. You can legislate, you can agitate, you can
talk, but you can never check the irresistible force of economic
law. You may as well try and stop a glacier with an alpen-
stock. Then why, when parties do try to get over some of the
absurdities of the Act, are they to be hampered at every turn ?
44

SECT. 1 (2)
(c).
Serious and
wilful mis-

conduct,

SECT. 1 (3).

If any
question.

Workmen’s Compensation Appeals.

(c) If it is proved that the injury to a workman is attributable
to the serious and wilful misconduct of that workman, any
compensation claimed in respect of that injury shall,
unless the injury results in death or serious and permanent
disablement, be disallowed.

SERIOUS AND WILFUL MISCONDUCT.

In Weighill v. South Heaton Coal Co., a collier’s work was to
cut a new road, but to fraudulently increase his earnings he
hewed coal from the sides of a road already finished, which, of
course, was much easier work. In doing so he undermined some
props and was killed. Because he had been guilty of serious and
wilful misconduct, which as a defence is not available in case of
death, the arbitrator found the employers liable. With this the
Court of Appeal did not agree. “In this case the county court
judge seemed to think it was enough to entitle the applicant to
compensation if serious and wilful misconduct on the part of a
workman was proved. This view would really strike out the words
‘arising out of and in the course of the employment’ from the
earlier part of the section. But if the evidence is that the work-
man was doing something outside the scope of his employment,
the proof of serious and wilful misconduct does not bring the
accident within the scope of the employment”: per Cozens-
Hardy, M.R. See also under Arising out of, Sphere of Employment,
sub-heading Disobedience.

(3) If any question arises in any proceedings under this Act
as to the liability to pay compensation under this Act (including
any question as to whether the person injured is a workman to
whom this Act applies), or as to the amount or duration of
compensation under this Act, the question, if not settled by
agreement, shall, subject to the provisions of the First Schedule
to this Act, be settled by arbitration, in accordance with the
Second Schedule to this Act.

IF ANY QUESTION.

What agreement must an employer accede to if he wants to
avoid ‘any question ’’ ?
Workmen’s Compensation Appeals. 45

Form 24 provides for awards in ordinary cases. After ordering SECT. 1 @).
payment of a definite sum per week it runs, such weekly payments i
to commence as fromthe dayof and to continue during the total
or partial incapacity of the said A.B. for work, or until the same
shall be ended, diminished, increased or redeemed in accordance
with the provisions of the above-mentioned Act. In Higgins v.
Poulsom, No. 2, it has been decided this is the correct form of
award to be made on arbitration, and the question for us is, Is a
workman entitled to demand an agreement to the same effect ?
Experience shows that it is worth a good deal to him to be able
to do so, as it enables him to get full compensation for consider-
able periods to which he is not entitled. So experience proves
that it is much easier for him to get an arbitrator to continue an
old award than to make anewone. In theory there should be no
difference. In practice there is all the difference in the world.
Many a man would probably fail to get any award at allif he had
to prove he was still partially incapacitated, whilst an employer
only usually ventures a review when he is practically certain the
man is most decidedly better, if not wholly recovered. On the
other hand there is the possibility that if an employer were enabled
to suddenly end his payments he might simply starve the man into
an unfair settlement. What then are the strict rights. If an
employer refuses to give the man all he is entitled to, there is
clearly some question outstanding to be settled by arbitration.
To determine his liability let us consider the Act itself. This we
find in sect. 1(1), read with Schedule I., par. (1) (i.) (b) of the Act.
Read together shortly we get—where total or partial incapacity
results, an employer shall be liable to pay compensation which shall
be a weekly payment during the incapacity not exceeding so much.

What rights do these words confer on the workman? Whatever
the amount, the payment is to be during the incapacity however
long it continues. And therefore, at the outset a workman has
a right to an unqualified agreement by the master to pay him
compensation during such time. A master cannot say, “ Yes,
you are incapacitated this week and I will pay you,” and then go
on admitting liability from week to week only. The man’s right is
46

Workmen's Compensation Appeals.

SECT.1(3). a vested right to compensation for the whole period of the

If any
question,

incapacity, and a master must admit this or a question will arise.
But the incapacity may vary. Certainly, and the compensation
should automatically vary with it. A master must admit liability
to pay compensation, é.c., some compensation, during the whole
term of the incapacity, but this does not mean he must admit
liability to pay any specific amount the whole time. The
amount, as we have said, must vary as the incapacity varies. If I
may again repeat a personal opinion, it would seem that for an
employer to make an agreement beyond cavil, it should be to
pay the agreed amount during the total incapacity, and thereafter
during partial incapacity such amount as might from time to
time be agreed, or failing agreement as might be determined by
arbitration.

On such agreements a most important decision has been that
of Payne v. Fortescue, not yet reported. Here the respondents
admitted liability and paid compensation. The man tried to
register this admission as an agreement on the lines of Form 24.
The employers answered they had not made such agreement,
and objected specifically that “the said memorandum does
not state that the weekly payments being paid in this case are
only to continue so long as our doctor certifies that the workman
is unable to follow his occupation.” The county court judge
found there was no agreement to be registered. (SeeSched. II. (9)
as to recording agreements.) The man then applied for arbitra-
tion. As arbitrator the judge found no question had arisen, as
the employer had given him all he was entitled to. On appeal
the Court agreed. The scheme of the Act is to deal with present
disputes, and not to prophesy or speculate as to what may arise
in the future. Here there was no present question, the man
was receiving and would continue to receive all he was entitled
to under the Act. Whilst this decision obviously justifies my
suggested agreement, does it say anything radically different to
what was said in Higgins v. Poulsom No. 2, which as we have just
said decided that Form 24 was the proper form in which to make
an award on an arbitration? The history of the case was this.
Workmen’s Compensation Appeals. 47

The respondents at the first hearing having answered that no gxcr. 1 (3).
question had arisen, the arbitrator agreed. On a technicality If any
the Court of Appeal differed and sent the case back to be heard. Gntem
The arbitrator then made the usual award as given in Form 24.
This the employers challenged, saying it gave more than the Act
and was therefore ultra vires. The Court held it was intra vires
and the proper form to be used. But what Form 24 gives on
award is exactly what the workman wanted by agreement in
Payne v. Fortescue. It was not argued, but surely it is a fair
argument that what a man is entitled to under the Act must be
the same whether arrived at vid award or vid agreement.
Unfortunately Higgins v. Poulsom No. 2 was not cited, and we
cannot say how the Court would have harmonized the two cases:
On a close study of them we are inclined to think that it is
rather in machinery than in principle they differ. What a man
is entitled to under an agreement is an admission of liability to
pay compensation during the incapacity, compensation and
incapacity automatically varying together. Does the award
really give more than this? At first sight it does. It makes
the same definite sum payable for partial as for total incapacity.
This is obviously bad on the face of it. But this is immediately
rectified by providing for such sum being varied when the
incapacity varies. Now we have seen it is no mere academic
objection to the award in this form. In practice it results in
serious injustice to the master, who often has to overpay com-
pensation he cannot recover. But this is due to defective
machinery, not to the award being wrong in law. So it would
be simply met by allowing an employer at any time he chose,
after applying for review,'to reduce his payment to what he held
was the proper amount and obtain stay of execution for the
balance until the hearing. An employer would no more rashly
cut down his payment than he would refuse compensation in the
first instance. It would simply mean his having to pay costs
without any compensating advantage. On the whole we think
Form 24 might be better worded, but as interpreted we do not
think there is any serious divergence in principle between the
48

Workmen’s Compensation Appeas.

SECT. 1 (8). law as.laid down in the two cases. And it cannot be otherwise.

If any
question,

To say a man is entitled to one thing by award and to another
by agreement would be to reduce the Act to an absurdity.
(See also under regard shall be had, Sched. I. (8).)

IF ANY QUESTION.—Question itself raised by answer.

In Barron v. Carmichael, a workman applied for compensa-
tion for injury, to which the employers replied they would
pay it so long as the works doctor certified incapacity. This
might have been a sufficient admission of liability to have
prevented any question arising, but in their answer they denied
both injury and incapacity. Had they wanted the sufficiency of
their admission tried they should have simply pleaded to the
jurisdiction and then without prejudice, if on that question the
arbitrator was against them, have raised the other points. Their
very answer raised a question and gave jurisdiction.

IF NOT SETTLED BY AGREEMENT.

In Fox v. Battersea Borough Council, a workman met with
an accident. Acting on the advice of his solicitor, he agreed
with his‘employers to take 10s. a week as compensation. There
was no doubt the advice was sound, as the employers had several
defences, amongst others, want of notice, want of claim within
six months, and, possibly, the Public Authorities Protection Act
(in this case decided not to be applicable). But as the
man was earning from 27s. 6d. a week to 80s., on the agree-
ment coming before the registrar for him to record, he found
that it was not genuine, and refused to do so. On appeal to the
judge, he agreed with the registrar and also found it was not
genuine, “ since the employers, in order to get recorded an agree-
ment for payment of less than half wages, purported to admit a
liability which they really denied.” This was in November, 1910,
and in January, 1911, the judge as arbitrator made an award of
compensation. On appeal, the preliminary objection was taken:
it was out of time because it had not been entered within
twenty-one days of the first date. As to this the Court held the
Workmen’s Compensation Appeals. 49

whole formed part of the same’proceeding, and then heard and SECT. 1 (3).
allowed the appeal on the merits. There was no doubt about A%¥ aestion
there being an agreement, and the only question for the registrar ae
was, was it genuine? It was neither his business nor that of

the judge to concern himself with the amount. “His function

was limited to this one simple question: Is this a genuine agree-

ment or not? Both parties admit the signature of Fox and the

seal by the council, and there is no suggestion of fraud or duress

or any attempt to set aside the agreement” : per Cozens-Hardy, M.R.;

and as Buckley, L.J., in agreeing, cynically put it: “It seems to

me that the registrar and the learned judge were seeking to

exercise a sort of parental or paternal jurisdiction which does

not exist.” So Kennedy, L.J.: “The registrar in this case with

no doubt the very best intentions went beyond anything the Act
justifies in going into matters apart from genuineness.”

In the Scotch case of Brown v. Hunter, the employers answered
“agreement made.” The arbitrator found it was signed in essential
error. The man went up to the pay-window and was handed
Al. 9s. 8d., his compensation for seven weeks and two days, with
a form for him to sign. This, thinking it to be a receipt only, he
signed without further explanation or inquiry. There was not the
slightest suggestion of trick, and the agreement was the usual
one. Atthe same time as it limited the employers’ liability to
paying only so long as they thought fit, and this was the extent
of their offer, which in this case was not accepted, a question

obviously arose.

(4) If, within the time herein-after in this Act limited for sxer. 1 (4),
taking proceedings, an action is brought to recover damages when action
independently of this Act for injury caused by any accident, and dismissed.
it is determined in such action that the injury is one for which
the employer is not liable in such action, but that he would have
been liable to pay,compensation under the provisions of this Act,
the action shall be dismissed; but the court in which the action
is tried shall, if the plaintiff so choose, proceed to assess such
compensation, but may deduct from such compensation all or
part of the costs which, in its judgment, had been caused by the
plaintiff bringing the action instead of proceeding under this
Act. In any proceeding under this sub-section, when the court

W.C.A. 4
50

SECT. 1 (4).

Workmen’s Compensation Appeals.

assesses the compensation it shall give a certificate of the com-

When action pensation it has awarded and the directions it has given as to

dismissed.

SECT, 1 (5).

the deduction for costs, and such certificate shall have the force
and effect of an award under this Act.

Alternative Remedy when Action Dismissed.

The right given by this sub-section is one personal to the plaintiff
alone in such action. Thus in the case of death where a
dependant brings an action, fails in it, and then asks for and
gets compensation under this provision, his action does not
enure for the benefit of other co-dependanis not parties to the
action. If they have failed to give notice or make their claim in
time they must stand or fall on their own particular rights
(Kyle v. M’Gintys).

In Slavin v. Train, on an action being dismissed with costs
and compensation being awarded under this sub-section, the Court
also gave the pursuer 51. 5s. costs for expenses obtaining the
award.

(5) Nothing in this Act shall affect any proceeding for a fine

under the enactments relating to mines, factories, or workshops,
or the application of any such fine.
SECTION 2.

Timm For Taxina PRocEepines.

2.—(1) Proceedings for the recovery under this Act of compen- sECT. 2.
sation for an injury shall not be maintainable unless notice of Time for

51

the accident has been given as soon as practicable after the taking pro-

happening thereof and before the workman has voluntarily left “°°4™e*

the employment in which he was injured, and unless the claim
for compensation with respect to such accident has been made
within six months from the occurrence of the accident causing
the injury, or, in case of death, within six months from the time
of death :

Provided always that—

(a) the want of or any defect or inaccuracy in such notice
shall not be a bar to the maintenance of such pro-
ceedings if it is found in the proceedings for settling the
claim that the employer is not, or would not, if a notice
or an amended notice were then given and the hearing
postponed, be prejudiced in his defence by the want,
defect, or inaccuracy, or that such want, defect, or
inaccuracy was occasioned by mistake, absence from the
United Kingdom, or other reasonable cause ; and

(b) the failure to make a claim within the period above speci-
fied shall not be a bar to the maintenance of such
proceedings if it is found that the failure was occasioned
by mistake, absence from the United Kingdom, or other
reasonable cause.

(2) Notice in respect of an injury under this Act shall give the
name and address of the person injured, and shall state in
ordinary language the cause of the injury and the date at which
the accident happened, and shall be served on the employer, or,
if there is more than one employer, upon one of such employers.

(8) The notice may be served by delivering the same at,
or sending it by post in a registered letter addressed to, the
residence or place of business of the person on whom it is to be
served.

(4) Where the employer is a body of persons, corporate or
unincorporate, the notice may also be served by delivering the
same at, or by sending it by post in a registered letter addressed
to, the employer at the office, or if there be more than one office,
any one of the offices of such body.

NOTICE.

Whilst slight evidence may satisfy an arbitrator that a work- sxcr. 2.
man never means to give up a genuine claim, and has taken Notice.

4—2
52

SECT. 2.
Notice,

Workmen’s Compensation Appeals.

steps to make it good, on the other hand very strong evidence
should be given to satisfy him that a notice—which might defeat
the claim and prove it fraudulent—should be dispensed with.

Employers Prejudiced.

Thus a cab-driver alleged slipping off his cab and spraining his
foot on July 12th. He saw his employer the same evening but
said nothing of the accident to him. He went into the hospital
next day and said he sent notice by a woman who called to see
him. On July 23rd he was discharged, and saw his employer to
draw some wages, but again said nothing about the accident. On
August 6th he alleged he sent notice by registered post, followed
on August 12th by formal notice from his solicitor, which was the
only notice the employer admitted receiving. On these facts the
arbitrator found he had been prejudiced, and disallowed the
claim. On the hearing it was contended that as the employer
had not had the man examined by a doctor until October 17th he
could not say he was prejudiced by anything happening after
August 12th, and further that there was no case recorded where a
notice having been given within a month had been held too late.
In supporting the finding of the arbitrator, Cozens-Hardy, M.R.,
said: “The judge has found that not giving the notice until
August 12th was not giving notice as soon as practicable, and that
in consequence the employer was prejudiced. I cannot myself
see that any delay on the part of the employer after August 12th
has anything to do with the matter. It is the period before
that which has to be considered ” (Leach v. Hickson).

In Burrell v. Holloway Bros., the arbitrator found that
though notice had not been given as soon as practicable the
employers had not been prejudiced. On appeal, the Court held
there was no evidence on which he could find they had not been
prejudiced. The man,a carpenter, alleged he was working in
the bathroom of a house, that he slipped on a piece of wood and
sprained his ankle. It was alleged he sent verbal notice to the
foreman carpenter, but it was held he was not the right person to
whom to give it. The only other notice he gave was two months
Workmen’s Compensation Appeals. 53

after the accident, anddirectly the employers received it they said sEcT. 2.

they must make inquiries, with the result they did so and resisted age

the claim. The man had referred to a mate being with him when prejudiced.

he hurt himself, but he could not be found when the notice was

given, and had he been found it would have been very different

then asking him what had occurred to asking him the same

question two or three days after the accident. Therefore the

Court found the man had ‘not discharged the onus on him of

proving the employers had not been prejudiced. As regards

such prejudice, Farwell, L.J., in Eaton v. Evans, stated the rule

very clearly : ‘‘ No specific evidence of ‘ no prejudice ’ is required ;

it is an inference to be drawn from the whole facts of the case.”
Equally in the case of Jackson v. Vickers, Maxim & Co. the

Court of Appeal decided there was no evidence on which the

arbitrator could find the employers had not been prejudiced by

want of proper notice, the notice given to a kind of foreman

being wholly inadequate.

Mistake . . . Reasonable Cause . . . Sub-contracting.

Griffiths v. Atkinson is a valuable case, the principles under-
lying mistake being clearly laid down. Here a plumber was
engaged by a sub-contractor, Goodrich, to whom, on being
injured, he gave verbal notice, thinking Goodrich would pass it
on to the principal employers, but which Goodrich did not do.
He then sought to make such principal employers liable. The
arbitrator found it was Goodrich’s duty to receive and pass on
the notice and that the man acted in the mistaken belief or
expectation he would do so, and he further held the employers
had not been prejudiced by the notice being informal. The
Court of Appeal held there was not a particle of evidence of
mistake. ‘The statute uses the word ‘mistake,’” said Buckley, L.J.
“ Mistake may be in fact or in law. Mistake in fact arises when
& person acts in the belief that the facts are as they are not;
mistake in law arises when he acts in the belief that the law is
that which it is not. An expectation which is not fulfilled is not
a mistake. What is proved here is that the workman did not
54

SECT. 2.
Notice.
Mistake,

Workmen’s Compensation Appeals.

give the notice which he ought to have given because he thought
that Goodrich would see to the matter . . . an expectation which
was not fulfilled. That was not a mistake at all.” So the Court
being satisfied the principal employers were prejudiced they
allowed the appeal.

Reasonable Cause.

In Hoare v. Arding and Hobbs, which was a case arising out
of the Clapham Junction fire, a girl in the next shop had such
a shock through it that it ultimately resulted in a nervous break-
down. She delayed giving notice, expecting to get over it,
and it was held she had a reasonable cause for so doing. A
similar decision was given in the case of Fry v. The Mayor of
Cheltenham, where the delay was also considerable, but where the
arbitrator was satisfied the results of the accident did not become
apparent for some considerable time, and also in Breakwell v.
Clee Hill Granite Co. Here an elderly cripple met with an
accident. In order to avoid dismissal and thinking he would
get over his accident, he deliberately gave no notice. His inten-
tion was not to apply for compensation at all. In the event it
proved he had injured himself permanently and seriously, and
he accordingly made a claim. The Court of Appeal agreed with
the arbitrator and thought that having regard to the man having
been a cripple he had acted reasonably. The same view was
taken by the Scotch courts in The Refuge Assurance Co. v. Miller.
Here an insurance agent fell downstairs when he was out
collecting premiums. He gave no immediate notice, thinking
his injuries trivial, but on their proving serious did so, and it
was held he had reasonable cause for hisdelay. Butin Edgerton
v. Moore, where a man was similarly injured, but where he did
not give notice even then as soon as he might have done, it was
held he could not recover.

Notice in Fact.

In the case of Stevens v. Insoles, it was held notice in fact had
been given. Here a colliery company had put up a printed
Workmen’s Compensation Appeals. 55

notice requiring every employee who had been injured to SECT. 2,
give notice to the manager, under-manager, or foreman before eee
leaving for home, and stating that otherwise his claim would be
disputed. A boy, slightly injured by the fall of a piece of coal,

went with his father to give notice as directed, and this done, it

was then entered in a book kept by the employers for the purpose.

At the hearing objection was taken no notice had been served on

the company and they had been prejudiced. But the Court of
Appeal held the notice as given met every requirement of the

Act, for as regards the only outstanding objection that actual
service had never been made, that was a requirement they were

not prepared to give adherence to. Stinton vy. Brandon is on

the same point of notice, but nothing novel or of interest is
involved in it.

CLAIM.

A claim, though it need not be formal, must yet be a definite sxcr. 2,
claim. In the case of Johnson v. Wootton a man was hurt aera
when exercising a horse. He made no claim under the Act, but definite.
began an action which was dismissed for want of prosecution.

What he should have done was on the dismissal to have asked

for compensation to have been assessed under sect. 1 (4). Instead

he began de novo a claim for compensation. Without deciding
whether he had made an election to proceed by action or not, the
Court held there was no evidence he had made any claim. For

five weeks he had received wages, his wife fetching them. Then

they were stopped, and the wife asked his employer would he
compensate her and her children, to which, she said, he replied

“ that she was nothing to him or he to her.” This was not a
claim which could be held to have been a claim by the man him-

self. So further in Roles v. Pascall it was held that ignorance Ignorance
of the existence of the Act was not a mistake or other reasonable oe
cause for not making a claim. “In my opinion we should be

in fact really repealing the period of limitation, namely, six
months, which is distinctly imposed by the Act, if we were to say

that any person could escape from and bring his claim any time
56

SECT. 2.
Claim.
Ignorance
of Act.

Workmen’s Compensation Appeals.

afterwards if he could prove that he had never heard of the
existence of the Act or did not know anything about its con-
tents’: per Cozens-Hardy, M.R.

This decision was followed in Judd v. Metropolitan Board.
Here a housemaid in a hospital injured her knees and was
attended by the house doctor. She made no claim in time, not
knowing of the Act. This was the substantial finding in fact of
the arbitrator. On appeal it was tried to be argued neither did
she know of the seriousness of her injury, but the Court were
bound by what had been found and could not help her. This is
asad case; there is not a doubt of the woman’s bona fides, the
respondents were certainly not prejudiced, their own doctor
having attended her, and we may be certain the Court would
have helped her if they could, but they could not. Perhaps,
had this case been tried before the very doubtful one of Roles v.
Pascall, ignorance of the Act might have been regarded as a
very reasonable cause indeed for not making a claim; but
knowing how it would be abused were such decided, we cannot
regret the decisions as they now stand.

As regards notice of claim in the case of industrial diseases,
see under Section 8
SECTION 38.

Contractine Ovr.

3.—(1) If the Registrar of Friendly Societies, after taking gxor. 3.

57

steps to ascertain the views of the employer and workmen, contracting

certifies that any scheme of compensation, benefit, or insurance out.

for the workmen of an employer in any employment, whether or
not such scheme includes other employers and their workmen,
provides scales of compensation not less favourable to the work-
men and their dependants than the corresponding scales con-
tained in this Act, and that, where the scheme provides for
contributions by the workmen, the scheme confers benefits at
least equivalent to those contributions, in addition to the benefits
to which the workmen would have been entitled under this Act,
and that a majority (to be ascertained by ballot) of the workmen
to whom the scheme is applicable are in favour of such scheme,
the employer may, whilst the certificate is in force, contract with
any of his workmen that the provisions of the scheme shall be
substituted for the provisions of this Act, and thereupon the
employer shall be liable only in accordance with the scheme, but,
save as aforesaid, this Act shall apply notwithstanding any
contract to the contrary made after the commencement of this
Act.

(2) The Registrar may give a certificate to expire at the end
of a limited period of not less than five years, and may from
time to time renew with or without modifications such a certifi-
cate to expire at the end of the period for which it is renewed.

(8) No scheme shall be so certified which contains an obliga-
tion upon the workmen to join the scheme as a condition of their
hiring, or which does not contain provisions enabling a workman
to withdraw from the scheme.

(4) If complaint is made to the Registrar of Friendly Societies
by or on behalf of the workmen of any employer that the benefits
conferred by any scheme no longer conform to the conditions
stated in sub-section (1) of this section, or that the provisions of
such scheme are being violated, or that the scheme is not being
fairly administered, or that satisfactory reasons exist for revoking
the certificate, the Registrar shall examine into the complaint
and, if satisfied that good cause exist for such complaint, shall
unless the cause of complaint is removed, revoke the certificate.

(5) When a certificate is revoked or expires, any moneys or
securities held for the purpose of the scheme shall, after due
provision has been made to discharge the liabilities already
accrued, be distributed as may be arranged between the employer
and workmen, or as may be determined by the Registrar of
Friendly Societies in the event of a difference of opinion.

(6) Whenever a scheme has been certified as aforesaid, it shall
58

SECT. 3.
Contracting
out.

Workmen’s Compensation Appeals.

be the duty of the employer to answer all such inquiries and to
furnish all such accounts in regard to the scheme as may be
made or required by the Registrar of Friendly Societies. :

(7) The Chief Registrar of Friendly Societies shall include in
his annual report the particulars of the proceedings of the
Registrar under this Act.

(8) The Chief Registrar of Friendly Societies may make
regulations for the purpose of carrying this section into effect.

By Horn v. The Lords Commissioners of the Admiralty, [1911]
1K. B. 24, it was decided that when a valid scheme was made
under this section it must be substituted for the provisions of the
Act in its entirety. It is under this section that contracting out
of the Act is provided for, and therefore when a workman comes
within the scheme he is placed outside the provisions of the Act
altogether.

In Godwin v. The Lords Commissioners of the Admiralty the
same decision was given and the objection to the recertifying
of the scheme under the old Act of 1897 was disallowed. See
also under sect. 15.

Sub-sect. 1.—This Act shall Apply.

Must such contract be to the whole Act for these words to
apply? A man makes a claim under the Act which is recog-
nised by his employers. This obviously is not contracting out.
But can the Act, once recognised, be subsequently contracted out
of? Under the Act, the compensation which it imperatively
directs shall be given is a weekly payment, redeemable as pro-
vided for. Can the parties make a contract which shall be
binding to take anything else? A workman applies for compen-
sation. The employers answer, “lump sum paid.” The workman
replies, “‘ illegal.” If this is so, as it is, the employers’ answer
fails. Then is not the whole matter open, and is not the most
the employer can do, to ask the arbitrator to have regard to the
sum paid in fixing the weekly payment? (See, further, Sched.
II. (9), Record of Agreements for Redemption.)
SECTION 4.
Sus-ConrRactina.

4.—(1) Where any person (in this section referred to as the sEctT. 4.
principal), in the course of or for the purposes of his trade or gub-con-
business, contracts with any other person (in this section referred tracting.
to as the contractor) for the execution by or under the contractor
of the whole or any part of any work undertaken by the principal,
the principal shall be liable to pay to any workman employed in
the execution of the work any compensation under this Act
which he would have been liable to pay if that workman had
been immediately employed by him ; and where compensation
is claimed from or proceedings are taken against the principal,
then, in the application of this Act, references to the! principal
shall be substituted for references to the employer, except that
the amount of compensation shall be calculated with reference to
the earnings of the workman under the employer by whom he is
immediately employed :

Provided that, where the contract relates to threshing,
ploughing, or other agricultural work, and the contractor pro-
vides and uses machinery driven by mechanical power for the
purpose of such work, he and he alone shall be liable under this
Act to pay compensation to any workman employed by him on
such work.

(2) Where the principal is liable to pay compensation under
this section, he shall be entitled to be indemnified by any person
who would have been liable to pay compensation to the workman
independently of this section, and all questions as to the right to
and amount of any such indemnity shall in default of agreement
be settled by arbitration under this Act.

(3) Nothing in this section shall be construed as preventing
& workman recovering compensation under this Act from the
contractor instead of the principal.

(4) This section shall not apply in any case where the accident
occurred elsewhere than on, or in, or about premises on which
the principal has undertaken to execute the work or which are
otherwise under his control or management.

NOTICE.

Notice of accident given to the sub-contractor does not
necessarily bind the principal (Griffiths v. Atkinson, see under
Notice) who must be served: Meier v. Dublin Corporation. In
this case it was also held that a workman must elect between his
employer and the principal, as their liability is alternative, and
not joint and several.
60

SECT. 5,

Provision as
to cases of
bankruptcy
of employer.

51 & 52 Vict,
c. 62,

52 & 53 Vict.
ec. 60,

60 & 61 Vict.
ce, 19,

50 & 51 Vict.
c, 43,

SECTION 5.
Proviston as TO Cases oF Bankruptcy oF EMPLOYER.

5.—(1) Where any employer has entered into a contract with
any insurers in respect of any liability under this Act to any
workman, then, in the event of the employer becoming bankrupt,
or making a composition or arrangement with his creditors, or if
the employer is a company in the event of the company having
commenced to be wound up, the rights of the employer against
the insurers as respects that liability shall, notwithstanding any-
thing in the enactments relating to bankruptcy and the winding
up of companies, be transferred to and vest in the workman, and
upon any such transfer the insurers shall have the same rights
and remedies and be subject to the same liabilities as if they were
the employer, so however that the insurers shall not be under
any greater liability to the workman than they would have been
under to the employer.

(2) If the liability of theinsurers to the workman is less than
the liability of the employer to the workman, the workman may
prove for the balance in the bankruptcy or liquidation.

(8) There shall be included among the debts which under
section one of the Preferential Payments in Bankruptcy Act,
1888, and section four of the Preferential Payments in Bankruptcy
(Ireland) Act, 1889, are in the distribution of the property of a
bankrupt and in the distribution of the assets of a company being
wound up to be paid in priority to all other debts, the amount,
not exceeding in any individual case one hundred pounds, due in
respect of any compensation the liability wherefor accrued before
the date of the receiving order or the commencement of the
winding up, and those Acts and the Preferential Payments in
Bankruptcy Amendment Act, 1897, shall have effect accordingly.
Where the compensation is a weekly payment, the amount due in
respect thereof shall, for the purposes of this provision, be taken
to be the amount of the lump sum for which the weekly payment
could, if redeemable, be redeemed if the employer made
an application for that purpose under the First Schedule to
this Act.

(4) In the case of the winding up of a company within the
meaning of the Stannaries Act, 1887, such an amount as afore-
said, if the compensation is payable to a miner or the dependants
of a miner, shall have the like priority as is conferred on wages
of miners by section nine of that Act, and that section shall have
effect accordingly.

(5) The provisions of this section with respect to preferences
and priorities shall not apply where the bankrupt or the company
me cae up has entered into such a contract with insurers as
aforesaid.
Workmen’s Compensation Appeals. 61

(6) This section shall not apply where a company is wound up SECT. 5.

voluntarily merely for the purposes of reconstruction or of oo
0 CASS 0:

amalgamation with another company. pankraptey
of employer.

Sub-sect. 1.—No Greater Liability.

In King v. Phenix Assurance Co. the insurance company made
it a condition precedent to recovering that any dispute should be
settled by arbitration. This condition bound the workman, who
took no higher rights than those of his employers.

No doubt in many cases workmen in receipt of compensation
paid by insurers instead of by their employers do benefit by
this section when such employers become bankrupt. But in
the case of mutual indemnity societies the advantage is more
problematical. The very scheme of a mutual society is to pool
losses and meet them by a general levy from time to time. So
ability to meet such levy is as a rule of the essence of the con-
tract, and when ability to pay one’s share is gone the right to
receive benefits goes with it. Thus the very time the employer
cannot pay his workmen will be the very time he cannot pay his
contributions. As this will mean his losing his right to any
indemnity it will also mean the workman having no right over
any value against the society for the compensation unpaid him
by his employer. Several ingenious attempts have been made
to get round these broad leading conditions of the contract, but
without success. Thus in Daffv. Mid. Coll. Mutual Indemnity
Co. it was tried to be shown that when the employing company,
the Alma Colliery Company, Limited, went into liquidation, it had
then a vested right to be fully indemnified for all money then
due or to become due to the workman. This of course would
give the workman a co-extensive right to full compensation.
Such cases turn purely on the construction of each particular
contract, but here it turned out that the company’s right to
indemnity depended on their ability to meet calls, and when one
ended so did the other. For this reason the Court found the
workman could not recover. A similar point similarly decided
on @ similar but not identical contract was raised in Kniveton v.
Northern Employers Mutual Indemnity Co.
62

SECT. 5.

Provision as
to cases of

bankruptcy
of employer.

Workmen’s Compensation Appeals.

Sub-sect. 3.—Preferential Claim.

In Homer v. Gough a workman was in receipt of compensation
when his employer sold his business to a limited company, which
took over and indemnified him against all claims. After a time
a receiver for debenture-holders was appointed and a voluntary
winding-up, not within sub-sect. 6, was decided upon. The man
applied under sub-sect. 8 to the county court judge to commute
his weekly payment. This the judge did at 100/., and made an
award that the receiver and liquidator should pay him the same.
From this award the latter appealed to the Court of Appeal, who
held it was not an appeal under the Act and did not lie to their
Court. It will be observed the case is complicated by the man
not having been in the direct employment of the company liable
in the winding-up. Ordinarily the procedure indicated would
apparently seem to be that on a winding-up a workman should
apply to the tribunal dealing with the assets of the company to
be allowed to prove for the compensation at its assessed amount,
such amount having been assessed in ordinary arbitration
proceedings, and that to the extent of 1001. it should be declared
a preferential claim. It is doubtful if the arbitrator as arbitrator
has any jurisdiction under this section at all. Under the Act
he has found a workman is entitled to a weekly payment.
Default is made in payment, and execution becomes impossible
because an order is made for winding up. Then the sub-section
provides how such payment is to be treated in the winding-up.
SECTION 6.
Remepies sora Against Epnrover AND STRANGER.

6. Where the injury for which compensation is payable under
this Act was caused under circumstances creating a legal
liability in some person other than the employer to pay damages
in respect thereof—

(1) The workman may take proceedings both against that
person to recover damages and against any person liable
to pay compensation under this Act for such compensation,
but shall not be entitled to recover both damages and
compensation; and

(2) If the workman has recovered compensation under this
Act, the person by whom the compensation was paid, and

63

SECT. 6.

Remedies
both against
employer and
stranger.

any person who has been called on to pay an indemnity |

under the section of this Act relating to sub-contracting,
shall be entitled to be indemnified by the person so liable
to pay damages as aforesaid, and all questions as to
the right to and amount of any such indemnity shall,
in default of agreement, be settled by action, or, by
consent of the parties, by arbitration under this Act.

NOT ENTITLED TO RECOVER BOTH DAMAGES AND COMPEN-
SATION.

In Huckle v. London County Council, a workman was injured
by third parties. He saw his employers, and asked them if
they could do anything for him as he was destitute. They said
yes, allowed him half wages, and gave him a receipt to sign which
he neither read nor appreciated. In was to this effect: ““Received
under the Workmen’s Compensation Act, 1906, . . . 12s. 8d.,
compensation at the rate of one half my average weekly earnings
up to . . . in respect ofan accident which occurred to me on or
about April 17, 1909.” The arbitrator held he had recovered
compensation within this section, and would not let the case go
to the jury. The Divisional Court, affirmed by the Court of
Appeal, held it was a question for the jury whether the man
understood the nature and effect of the receipt, and sent the case
back for re-trial. It does not appear their decision is intended to
unsettle the law. It simply decides that the receipt was not
conclusive against the man, and that all the circumstances had
to be gone into to find whether there had or had not been an

effective exercise of an option. A long string of cases establishes

SECT. 6 (1).

No double
remedy.
64

SECT. 6 (1).

No double
remedy.

SECT. 6 (2),
Right to
indemnity.

Workmen’s Compensation Appeals.

that a man is not to try and get money from two people for the
same accident. If he takes money from his employer, reserving
his rights against others, he will fail. If he receives money from
one party not to proceed against him he can proceed ‘against no
one else. But there may be cases where an employer may wish
to help his men, destitute as this man was, without prejudicing
their rights to get full damages from the wrongdoer. Then cara
must be taken how the weekly payments are made and received,
or there may be grave risk of this being the result. Nor to
protect himself is it necessary to explicitly state the payments
are under the Act, for if in the end the man should claim
compensation all such payments will have to be taken into
account. Having regard to the ultimate development of this
case, the man seems to have suffered from the extreme caution
of his employers, as it was to his interest to get damages and
not compensation, and there was no good reason why he should
have given up his rights, nor why they should have wished
him to do so. In Wright v. Lindsay this was the case, and the
man was held justified in taking compensation on a promise to
repay it if he recovered against the third parties.

Employer’s Right to Indemnity.

In Lankester v. Miller, Hetherington third party, a man
was sitting on the shafts of a cart when the horse, frightened
by a motor driven by the third party, bolted, threw him to the
ground, and killed him. His employer admitted liability, and
claimed indemnity over. His right to such indemnity turned on
this: Could his man have recovered from the third party for
negligence? As regards actual driving, no fault could be found, as
Hetherington had slowed down to about six miles an hour when
overtaking the cart and horse, and the negligence alleged
against him was that the hooter, which by statute he was required
to carry, was defective. On this point, Cozens-Hardy, M.R., held:
“Tt may very well be—we have not to decide that here—that the
third party may have been liable to a penalty for what he did,
but the judge has found that the breach of the regulation was not
Workmen’s Compensation Appeals. 65

the causa causans of the accident. . . . I see no reason to differ SECT. 6 (2).
from the learned judge.” And, the other judges concurring, the aia:
third party was held not liable.

In Smith’s Dock Co. v. Readhead a most important point was
involved. A third party injured a workman who four days
later died of his injuries, and his employer had to compensate his
sole dependant, an illegitimate child. Bray, J., held the third party
liable to indemnify the employer. It was true there was no one
who could have successfully sued him, the man being dead, but
yet this did not alter the fact that at the time of the injury he
forthwith became liable to him, as the injury was caused under
circumstances creating a liability in some person other than the
employer. This made him liable to indemnify, and once liable
his liability was not done away with because later on no one
existed who could have successfully sued him for damages.

When Third Parties Fellow Workmen.
Lees and Sykes (third parties) v. Dunkerley Bros. is a most SECT. 6 (@).

important case. Here a boy, Gibson, was injured by the negli- eee
gence of the third parties, his fellow workmen. His employer ?*"ts.
admitted his right to compensation and sought an indemnity

from the third parties. By consent the arbitrator decided the
question and found for the employers. His decision was
approved by the Court. of Appeal, and again approved by the
House of Lords. The third parties argued that as fellow
servants they should be immune, but again without success.

Lord Loreburn, L.C., said: ‘I can hardly imagine a more dangerous

or mischievous principle than that which is sought to be set

up here. It may be right or wrong to say, as Priestley v. Fowler

says, that a man is not to be responsible for the negligence of

his agents. That is decided law and I make no comment upon

it. But it is avery different proposition to say that a man is not

to be responsible for his own negligence. That would mean a

free hand to everybody to neglect his duty towards his fellow
servant and escape with impunity from all liability for damages

for the consequences of his own carelessness or neglect of duty.

W.C.A- 5
66 Workmen’s Compensation Avpeals.

SECT.6 (2). Hvery one must have an interest in maintaining the law in a
earn __ Sense hostile to such a proposition, and I should think that of all
third parties. classes in the community workmen who work together in many
dangerous employments have the greatest interest of all in pre-
venting the doctrine which has been very carefully and reason-

ably put forward from being accepted.”
67
SECTION 7.
APPLICATION oF Act to SHAMEN.

7.—(1) This Act shall apply to masters, seamen, and appren- sxcr. 7.
tices to the sea service and apprentices in the sea-fishing service, application
provided that such persons are workmen within the meaning of of Act to
this Act, and are members of the crew of any ship registered men.
in the United Kingdom, or of any other British ship or vessel
in which the owner, or (if there is more than one owner) the
managing owner or manager resides or has his principal place
of business in the United Kingdom, subject to the following
modifications :—

(a) The notice of accident and the claim for compensation

may, except where the person injured is the master,
be served on the master of the ship as if he were
the employer, but where the accident happened and
the incapacity commenced on board the ship it shall
not be necessary to give any notice of the accident :

(b) In the case of the death of the master, seaman, or appren-
tice, the claim for compensation shall be made within
six months after news of the death has been received by
the claimant :

(c) Where an injured master, seaman, or apprentice is dis-
charged or left behind in a British possession or in a
foreign country, depositions respecting the circumstances
and nature of the injury may be taken by any judge or
magistrate in the British possession, and by any British
consular officer in the foreign country, and if so taken
shall be transmitted by the person by whom they are
taken to the Board of Trade, and such depositions or
certified copies thereof shall in any proceedings for
enforcing the claim be admissible in evidence as pro-
vided by sections six hundred and ninety-one and six
hundred and ninety-five of the Merchant Shipping Act, 57 & 58 Vict.
1894, and those sections shall apply accordingly : s. 60.

(d) In the case of the death of a master, seaman, or apprentice,
leaving no dependants, no compensation shall be payable,
if the owner of the ship is under the Merchant Shipping
Act, 1894, liable to pay the expenses of burial :

(e) The weekly payment shall not be payable in respect of the
period during which the owner of the ship is, under the
Merchant Shipping Act, 1894, as amended by any sub-
sequent enactment, or otherwise, liable to defray the
expenses of maintenance of the injured master, seaman,
or apprentice :

(f) Any sum payable by way of compensation by the owner
of a ship under this Act shall be paid in full notwith-
standing anything in section five hundred and three of
the Merchant Shipping Act, 1894 (which relates to the

5—2
68 Workmen’s Compensation Appeals.

SECT. 7. limitation of a shipowner’s liability in certain cases of
Application loss of life, injury, or damage), but the limitation on the
ee owner’s liability imposed by that section shall apply to

the amount recoverable by way of indemnity under the
section of this Act relating to remedies both against
employer and stranger, as if the indemnity were damages
for loss of life or personal injury :

(g) Subsections (2) and (8) of section one hundred and seventy-
four of the Merchant Shipping Act, 1894 (which relates
to the recovery of wages of seamen lost with their ship),
shall apply as respects proceedings for the recovery of
compensation by dependants of masters, seamen, and
apprentices lost with their ship as they apply with
respect to proceedings for the recovery of wages due
to seamen and apprentices; and proceedings for the
recovery of compensation shall in such a case be main-
tainable if the claim is made within eighteen months of
the date at which the ship is deemed to have been lost
with all hands.

(2) This Act shall not apply to such members of the crew of

a fishing vessel as are remunerated by shares in the profits or
the gross earnings of the working of such vessel.

(8) This section shall extend to pilots to whom Part X. of
the Merchant Shipping Act, 1894, applies, as if a pilot when
employed on any such ship as aforesaid were a seaman and a
member of the crew.

REGISTERED IN THE UNITED KINGDOM.

SECT. 7 (1. In the case of Panagotis v. “ Pontiac” (Owners of), a colonial
nen Brieat' sailor, on a colonial ship, belonging to a colonial owner, was
ship. injured locally (in the Barry Dock, Cardiff), within the juris-
diction of the Act. He detained the ship, and this was an appeal
against the order to detain. As this sect. 7, as well as sect. 11,
which provides for the detention of ships, has nothing whatever
to do with any ships except those specified, viz., those registered
in the United Kingdom or British-owned as stated, the arbitrator
had no power under the Act to order the detention. Therefore,
as the Act did not apply, what he did was not under it, and
therefore an appeal from his decision should have been made to
a Divisional Court and not to the Court of Appeal.
As regards the rights of the seaman, he had none under these
sections, and when he tried to enforce his claim ag an ordinary
workman working within the jurisdiction of the Act he failed.
Workmen’s Compensation Appeals. 69

He had not complied, nor could he comply, with the formalities sxcT. 7 (1).
requisite for so claiming, nor could he eke them out by what he ee
had done under sects. 7 and 11. In substance, a sailor belonging Ship.

to another nationality does not acquire any rights against his

employer, under an Act which does not apply to him, merely

because he happens to be injured on British soil. (See also

under sect. 11.)

THE WEEKLY PAYMENT SHALL NOT BE PAYABLE.

An important decision on sub-sect. (e) is McDermott v. S.S. SECT. 7 (1)
“ Tintoretto,” in the House of Lords. ie

Paragraph 3 of Schedule I. of the Act reads: “ In fixing the
amount of the weekly payment regard shall be had to any payment,
allowance or benefit which the workman may receive from the
employers during the period of his incapacity.”

On these two clauses the employers built up a very ingenious sxcr, 7 (1)
argument. By virtue of the first clause they contended that (eee
so long as they were defraying the expenses of the seaman Payments.
as mentioned they were not to be liable for any weekly payment
under the Act, and by virtue of the latter clause that when such
weekly payment was being assessed deductions had to be made
for these selfsame expenses defrayed by them. A divided Court
of Appeal, Kennedy, L.J., dissentient, found for the employers,
whilst a united House of Lords thought their contention far too
technical, and were of opinion the two periods were to be regarded
as continuous and not overlapping, or, putting the proposition
the reverse way, they held that all that was intended was that the
seaman was not to be paid twice over by the overlapping of
benefits derived from two separate statutes.

See also under Schedule I. (8).

SHALL NOT APPLY. Sub-sect. 2.

As regards this section the ordinary test of master and servant szcT. 7 (2).
is not material, as the very section is framed in contemplation of oni
the relation of master and servant being in existence. There ghare
have now been several decisions on it. In Whelan v. @. N.*e™m™
710 Workmen’s Compensation Appeals.

SECT.7(2). Steam Fishing Co. a share fisherman argued that this section
Shall not

apply. did not apply to him merely because he received some small
iiaate sum for helping to stow the fish. The Court found he was in
ermen.

the position of a co-adventurer interested in the totality of the
venture and not merely one part of it and held it did. The
facts seemed hopeless. He was an admitted share fisherman.
The next case was that of the Admiral Fishing Co. v. Robinson.
Here an engineer remunerated with a one twenty-fourth share of
the net receipts with a guarantee it should not be less than 30s.
a week contended he was remunerated with wages and profits,
and the arbitrator awarded in his favour. The facts obviously
did not warrant this contention. As Buckley, L.J., put it, “In every
event he was entitled to a share and in certain events he was
entitled to more than a share. The judge really speaks as if the
section said ‘solely,’ but if we construe the Act in that way
it would be impossible to work it, because no man is ever
remunerated solely by a share. He gets his bunk,” food, ete.
“Tf he is remunerated by a share he is a sharehand fisherman,
and none the less because there is a guarantee that if his share
does not amount to a certain sum he shall receive more.”

In construing this section we therefore see “solely” is not to
be read into it. Then three cases came before the Court this
term—Costello v. Kellsall, Canwell v. Same, and Tindall v.
G. N. 8.8. Fishing Co., not yet reported. The contracts, headed
“Share fishing boats,” were: “ The owner hereby agrees to pay to
the said crew as wages and remuneration the sums and the
share in the profits of the said fishing expedition against their
names.” Costello received 11. a week and 8d. in the pound on
the net profits. The Court held they were bound by the previous
case and could not read “solely” into the Act, and found he
received a share and was a share fisherman. Their conclusion
would have been the same had he only received 1d. in the pound.
As it happened the share was somewhat substantial as the net
profits were 971. 9s. 10d. and he got nearly 25s. The skipper
received a one and three-eighth share and the mate one share out
of fourteen shares and were undoubtedly share hands; but’ it
Workmen’s Compensation Appeals. 71

was argued, but without success, that the man was not. We SECT. 7 (2).
thus see in these cases an interesting genesis of decision-made ae
law. Had this case been the first one, we think it is likely the share
Court would not have read “solely ” into the sub-section, but pro- ee
bably that it would have read “substantially” into it, leaving it

to be determined as a question of fact whether a man was or was

not substantially remunerated by shares or, as in this case, by

wages. Perhaps if the House of Lords be consulted the swing

of the pendulum may begin in the other direction, especially if

asked to decide in the case of a man who only received a profit

of 1d. in the pound. But in these cases everything depends on

the way they are first presented. As Kennedy, L.J., in substance

well said in another case of Jury v. ‘‘ Atalanta” (Owners of ), when

the facts are not disputed we must not be led away too much by

the terms used. So here it would seem we should look at the
substantial contract and ask was it one for wages or one for

profits. However none of the parties took this view, so probably

there is nothing in it.
72

SECT. 8 (1).

Application
of Act to
industrial
diseases.

1 Edw 7,
ec, 22,

SECT. 8.

Industrial
diseases.

SECTION 8.
Apprication or Act to InpusTrRIAL D1sEasEs.

8.—(1) Where—

(i.) the certifying| surgeon appointed under the Factory and
Workshop Act, 1901, for the district in which a workman
is employed certifies that the workman is suffering
from a disease mentioned in the Third Schedule to this
Act and is thereby disabled from earning full wages at
the work at which he was employed ; or

(ii.) a workman is, in pursuance of any special rules or
regulations made under the Factory and Workshop Act,
1901, suspended from his usual employment on account
of having contracted any such disease ; or

(iii.) the death of a workman is caused by any such disease ;

and the disease is due to the nature of any employment in which
the workman was employed at any time within the twelve months
previous to the date of the disablement or suspension, whether
under one or more employers, he or his dependants shall be
entitled to compensation under this Act as if the disease or such
suspension as aforesaid were a personal injury by accident
arising out of and in the course of that employment, subject to
the following modifications :—

(a) The disablement or suspension shall be treated as the
happening of the accident ;

(b) If it is proved that the workman has at the time of
entering the employment wilfully and falsely repre-
sented himself in writing as not having previously
suffered from the disease, compensation shall not be
payable ;

(c) The compensation shall be recoverable from the employer
who last employed the workman during the said twelve
months in the employment to the nature of which the
disease was due:

Provided that—

(i.) the workman or his dependants if so required shall
furnish that employer with such information as to the
names and addresses of all the other employers who
employed him in the employment during the said twelve
months as he or they may possess, and, if such in-
formation is not furnished, or is not sufficient to enable that
employer to take proceedings under the next following
proviso, that employer upon proving that the disease was
not contracted whilst the workman was in his employ-
ment shall not be liable to pay compensation ; and

(ii.) if that employer alleges that the disease was in fact
contracted whilst the workman was in the employment
Workmen's Compensation Appeals. 73

of some other employer, and not whilst in his employment, SECT. 8.
he may join such other employer as a party to the Industrial
arbitration, and if the allegation is proved that other ese
employer shall be the employer from whom the
compensation is to be recoverable ; and

(iil.) if the disease is of such a nature as to be
contracted by a gradual process, any other employers,
who during the said twelve months employed the work-
man in the employment to the nature of which the
disease was due, shall be liable to make to the employer
from whom compensation is recoverable such contribu-
tions as, in default of agreement, may be determined in
the arbitration under this Act for settling the amount of
the compensation ;

(d) The amount of the compensation shall be calculated with
reference to the earnings of the workman under the
employer from whom the compensation is recoverable ;

(e) The employer to whom notice of the death, disablement,
or suspension is to be given shall be the employer who
last employed the workman during the said twelve
months in the employment to the nature of which the
disease was due, and the notice may be given notwith-
standing that the workman has voluntarily left his
employment ;

(f) If an employer or a workman is aggrieved by the action of
a certifying or other surgeon in giving or refusing to give
a certificate of disablement or in suspending or refusing to
suspend a workman for the purposes of this section, the
matter shall in accordance with regulations made by the
Secretary of State be referred to a medical referee, whose
decision shall be final.

(2) If the workman at or immediately before the date of the
disablement or suspension was employed in any process men-
tioned in the second column of the Third Schedule to this Act,
and the disease contracted is the disease in the first column of
that Schedule set opposite the description of the process, the
disease, except where the certifying surgeon certifies that in his
opinion the disease was not due to the nature of the employment,
shall be deemed to have been due to the nature of that employ-
ment, unless the employer proves the contrary.

(3) The Secretary of State may make rules regulating the
duties and fees of certifying and other surgeons (including dentists)
under this section.

(4) For the purposes of this section the date of disablement
shall be such date as the certifying surgeon certifies as the date
on which the disablement commenced, or, if he is unable to
certify such a date, the date on which the certificate is given:
Provided that—

(a) Where the medical referee allows an appeal against a
74 Workmen's Compensation Appeals.

SECT. 8, refusal by a certifying surgeon to give a certificate of
= ieee disablement, the date of disablement shall be such date
194868,

as the medical referee may determine :

(b) Where a workman dies without having obtained a certificate
of disablement, or is at the time of death not in receipt of
a weekly payment on account of disablement, it shall be
the date of death.

(5) In such cases, and subject to such conditions as the
Secretary of State may direct, a medical practitioner appointed
by the Secretary of State for the purpose shall have the powers
and duties of a certifying surgeon under this section, and this
section shall be construed accordingly.

(6) The Secretary of State may make orders for extending the
provisions of this section to other diseases and other processes,
and to injuries due to the nature of any employment specified in
the order not being injuries by accident, either without modifica-
tion or subject to such modifications as may be contained in the
order.

(7) Where, after inquiry held on the application of any
employers or workmen engaged in any industry to which this
section applies, it appears that a mutual trade insurance company
or society for insuring against the risks under this section has
been established for the industry, and that a majority of the
employers engaged in that industry are insured against such
risks in the company or society and that the company or society
consents, the Secretary of State may, by Provisional Order,
require all employers in that industry to insure in the company
or society upon such terms and under such conditions and subject
to such exceptions as may be set forth inthe Order. Where such
a company or society has been established, but is confined to
employers in any particular locality or of any particular class,
the Secretary of State may for the purposes of this provision treat
the industry, as carried on by employers in that locality or of that
class, as a separate industry.

(8) A Provisional Order made under this section shall be of
no force whatever unless and until it is confirmed by Parliament,
and if, while the Bill confirming any such Order is pending in
either House of Parliament, a petition is presented against
the Order, the Bill may be referred to a Select Committee,
and the petitioner shall be allowed to appear and oppose as
in the case of Private Bills, and any Act confirming any Pro-
visional Order under this section may be repealed, altered, or
amended by a Provisional Order made and confirmed in like
manner.

(9) Any expenses incurred by the Secretary of State in respect
of any such Order, Provisional Order, or confirming Bill shall be
defrayed out of moneys provided by Parliament.

(10) Nothing in this section shall affect the rights of a work-
man to recover compensation in respect of a disease to which
Workmen's Compensation Appeals. 75

this section does not apply, if the disease is a personal injury by SECT. 8.

accident within the meaning of this Act. Industrial
diseases.

DISABLEMENT AS ACCIDENT.—To be Certified. Notice of.

This sect. 8 provides for industrial diseases generally. Subject
to its provisions the ordinary practice prevails so far as applic-
able. Thus notice must be given and claim made as is usual
under the Act. At the same time the very nature of the disease
which is to be presumed an accident may necessitate some
differentiation. Thus, as regards an ordinary accident, it can
and must be fixed as a definite event at a definite time. The
happening of the accident in the case of a disease under this
section is purely hypothetical and is fixed as follows:—By sub-
sect. 1 (iil.) (a), the disablement or suspension shall be treated as
the happening of the accident ; whilst sub-sect. 4 states the date of
the disablement is to be such as is certified by the certifying
surgeon, or if he is unable to so certify, the date when the
certificate is given. Under these provisions it may well happen
a date may be fixed as the date of the disablement or of the
accident six months or more prior to the visit to the surgeon.
In fact this did so happen in the case of Moore v. Naval
Colliery Co. Here a miner suffered from nystagmus, an affec-
tion of the eye caused by working in the pits. As a rule it
is much benefited by plenty of sunlight. Hence, when a strike
prevented his working, he thought it would get all right, and paid
little attention to it. In the end he had to go to the certifying
surgeon, and the strike having lasted over six months, the
surgeon fixed the date of disablement prior to its commencement.
Under these circumstances the Court of Appeal held the man
had a most reasonable excuse for neither giving notice nor
making a claim within the six months. So had it been necessary,
which it was not, they would have undoubtedly held that an
applicant was not bound by such artificial date, for the very
scheme of the section suggests the possibility of not merely six
months, but twelve months, elapsing before the disease fully
develops itself. At the same time nothing was said which
76

SECT. 8.
Industrial
diseases.
Disablement
as accident.

Workmen’s Compensation Appeals.

would warrant a man unnecessarily delaying a visit to the
certifying surgeon. So it cannot be repeated too often, it is the
duty of a man making a claim to act reasonably and, as far as
possible, promptly, and in every way to facilitate his employer
checking the bona fides of his claim. If he has done this he can
usually face the Court of Appeal and House of Lords with every
confidence.

Disease due to Employment.—Proof of.

The Scotch case M‘Ginn v. Udston Coal Co. is rather a
curious one. There seem to be two kinds of nystagmus,
ordinary nystagmus and miners’ nystagmus. A miner pro-
bably suffered from the former, but as the disease in the Home
Office Order is specified generally as nystagmus, he was held
entitled to a certificate under this sect. 8 (1) (i.). But by
sub-sect. (1) (iii.) he must also prove his disease is due to his
employment. By sub-sect. (2) this burden of proof he discharges
by simply proving employment in the specified process, viz.,
mining in this case, unless the certifying surgeon, or in case of
appeal the referee, certifies that the disease is not due to the
nature of the employment. Here the referee did so certify, but
as it was understood the man suffered from nystagmus, the
effect was to deprive him of the benefit of the presumption so
given him by this sub-sect. (2), but it left open to him to
prove in any other way if he could that the nystagmus did so
arise from his employment. In the course of thecase the Court
approved of the practice of reading together the note of the
referee along with his finding when the note is clearly intended
as part of such finding and is referred to in such finding.

Certificate Refused.

In the case of Evans v. Dodd the certifying surgeon refused
a certificate that a man was suffering from an industrial disease.
He then tried to recover under sect. 1 (1) for injury by acci-
dent. But having been injured by gradual poisoning, the
Workmen’s Compensation Appeals. 77

requisites of an accident, a definite event at a definite time, were SECT. 8.
wanting, and he accordingly failed in his claim. eel

Certificate Only Final as to Fact of Disablement.

In Garrett v. Waddell & Son a miner’s beat elbow was certified
by the certifying surgeon. The employers appealed to the
medical referee, who found: “I dismiss the appeal . . . against
the certificate of disablement . . . with this restriction, that the
said John Garrett is now able to resume his ordinary duties.”
On this the arbitrator disallowed proof of incapacity, but it was
held that the restriction was outside the referee’s jurisdiction.
All he had to do was to decide aye or nay was there disablement
as certified by the certificate of the certifying surgeon. So in
Winters v. Robert Addie & Sons it was again repeated that what
the referee must find is :—Is the man suffering from an industrial
disease and, if so, is he thereby incapacitated from work.

Liability of Previous Employer.

Sub-sect. (1) (iii) (c) provides for compensation being
recoverable from the employer who last employed the workman
during the twelve months referred to.

Then proviso ii. provides that if in fact the disease was con-
tracted when in the employment of another master, that other
master shall be the one liable.

Then proviso iii. provides that if the disease were of such a
nature as to be contracted by a gradual process, all who in the
previous twelve months had similarly employed the man shall
be liable to contribute, and in Mallinder v. Moores it was held
that there was no need for a respondent asking for contributions
under this proviso iii. to prove that the disease was in fact con-
tracted whilst in such other employment. He has to do this when
he wants to shift his liability under the proviso ii., but not under

this proviso.
78

SECT. 8.

Industrial
diseases.

Workmen’s Compensation Appeals.

Capacity as Affected by Previous Attack.

In Jones v. New Brynmally Colliery Co. a miner had suffered
from and recovered from nystagmus, but was unable to again get
his old work underground, as employers would not take him on
account of his having suffered from it. In his case there was
no evidence that having suffered from one attack made him more
susceptible to another, and therefore the Court found against
him. His incapacity was not due to his accident. But in
Garnant Anthracite Collicries v. Rees the arbitrator found for the
miner because on the evidence one attack of nystagmus left him
more susceptible to another, and the Court of Appeal supported
the finding of fact.

See further Sched. 1 (8), Able to Harn.
79

SECTION 9.
APPLICATION TO WORKMEN IN EmpLoyMENT or CROWN.

9.—(1) This Act shall not apply to persons in the naval or SECT. 9.
military service of the Crown, but otherwise shall apply to work- Application
men employed by or under the Crown to whom this Act would to workmen

apply if the employer were a private person : ee

Provided that in the case of a person employed in the private crown,
service of the Crown, the head of that department of the Royal
Household in which he was employed at the time of the accident
shall be deemed to be his employer.

(2) The Treasury may, by warrant laid before Parliament,
modify for the purposes of this Act their warrant made under
section one of the Superannuation Act, 1887, and notwithstanding 50 & 51 Viet,
anything in that Act, or any such warrant, may frame schemes ° §-
with a view to their being certified by the Registrar of Friendly
Societies under this Act.

Concurrent Contracts.

In the case of Brandy v. S.S. “ Raphael,” [1911] 1 K. B. 376, a sxcr. 9 (1).

stoker on a merchant vessel was a member of the Naval Reserve, Coneunent
and received 61. a year as a retainer. He met with an accident
and claimed that the 6/. should be taken into account as earnings
under a concurrent contract of service under Schedule I. (2) (b).
The arbitrator found in the man’s favour, as also the Court of
Appeal and the House of Lords. They were of opinion that the
only effect of this section is that the Act is not to apply as
between the Crown and those in its naval or military service, but
that in no way was it intended to modify the relation under this
Act between such persons and their ordinary employers. So
they thought the retainer was a typical case of a payment under
a concurrent contract. The fact that the Crown might not be
liable in certain cases did not, therefore, mean no other employer
should be.
80

SECT. 10.

Appointment
and remunera-
tion of
medical
referees and
arbitrators.

SECT. 11.

Detention of
ships.

SECTION 10.

Appointment AND REMUNERATION oF MepicaL REFEREES AND
ARBITRATORS.

10.—(1) The Secretary of State may appoint such legally
qualified medical practitioners to be medical referees for the pur-
poses of this Act as he may, with the sanction of the Treasury,
determine, and the remuneration of, and other expenses incurred
by, medical referees under this Act shall, subject to regulations
made by the Treasury, be paid out of moneys provided by
Parliament. ;

Where a medical referee has been employed as a medical
practitioner in connection with any case by or on behalf of an
employer or workman or by any insurers interested, he shall not
act as medical referee in that case.

(2) The remuneration of an arbitrator appointed by a judge
of county courts under the Second Schedule to this Act shall be
paid out of moneys provided by Parliament in accordance with
regulations made by the Treasury.

SECTION 11.
Derention oF SHIps.

11.—(1) If it is alleged that the owners of any ship are liable
as such owners to pay compensation under this Act, and at any
time that ship is found in any port or river of England or Ireland,
or within three miles of the coast thereof, a judge of any court
of record in England or Ireland may, upon its being shown to
him by any person applying in accordance with the rules of the
court that the owners are probably liable as such to pay such
compensation, and that none of the owners reside in the United
Kingdom, issue an order directed to any officer of customs or
other officer named by the judge requiring him to detain the
ship until such time as the owners, agent, master, or consignee
thereof have paid such compensation, or have given security, to
be approved by the judge, to abide the event of any proceedings
that may be instituted to recover such compensation and to pay
such compensation and costs as may be awarded thereon; and
any officer of customs or other officer to whom the order is
directed shall detain the ship accordingly.

(2) In any legal proceeding to recover such compensation,
the person giving security shall be made defendant, and the
production of the order of the judge, made in relation to the
security, shall be conclusive evidence of the liability of the
defendant to the proceeding.

(3) Section six hundred and ninety-two of the Merchant
Workmen’s Compensation Appeals. 81

Shipping Act, 1894, shall apply to the detention of a ship under sECT. 11.
this Act as it applies to the detention of a ship under that Detention of
Act, and, if the owner of a ship is a corporation, it shall for ships.

the purposes of this section be deemed to reside in the United 57 & 58 Vict.
Kingdom if it has an office in the United Kingdom at which * ®
service of writs can be effected.

In Panagotis v. “‘ Pontiac” (Owners of), the county court
judge made an order under this section for the detention of a
ship lying at Cardiff. It not being a British ship, in accordance
with the provisions of Schedule II. (4), the owners appealed
against the order to the Court of Appeal. Cozens-Hardy, M.R.,
and Fletcher Moulton, L.J., held that the order for detention
is only in aid of the arbitration, and is not part of it, and that
therefore the appeal should have been to a Divisional Court.
Farwell, L.J., took the view that the words expressly added
to the 1906 Act or where he gives any decision or makes any order
under this Act are wide enough to cover orders made under that
power. Then he added: “ Any other construction would cause
suitors unnecessary trouble and expense. In a case where the
words are at least ambiguous, I think these considerations ought
to have weight, and I am of opinion accordingly that the appeal
is rightly presented to this Court.” It is difficult to follow the
reasons given by the M.R. if he is at all correctly reported, but
stated slightly differently the case seems clearer. Here was, as
we have said under Section 7, a colonial sailor on a colonial ship,
belonging to a colonial owner, injured within the jurisdiction of
the Act. But as neither Section 7 nor Section 11 has anything
whatever to do with such ships or owners, the Act in no way
applies to such a case, and what was done was in no way done
under it. Notwithstanding this, for the reasons given by
Farwell, L.J., and for the further reason that even the decision
the Act does not apply should be regarded as a decision under the
Act, for it certainly is a decision explanatory of the Act, it would
seem the Court of Appeal might well have heard the case,
especially as in the event of either party being dissatisfied with
the decision of the Divisional Court it would have to come
before them again.

W.C.A. 6
82

SECTION 12.

RETURNS aS TO COMPENSATION.

SECT. 12. 12.—(1) Every employer in any industry to which the
Returns as to Secretary of State may direct that this section shall apply shall,
compensation. on or before such day in every year as the Secretary of State may
direct, send to the Secretary of State a correct return specifying
the number of injuries in respect of which compensation has been
paid by him under this Act during the previous year, and the
amount of such compensation, together with such other particulars
as to the compensation as the Secretary of State may direct, and in
default of complying with this section shall be liable on conviction
under the Summary Jurisdiction Acts to a fine not exceeding five
pounds. -
(2) Any regulations made by the Secretary of State containing
such directions as aforesaid shall be laid before both Houses of
Parliament as soon as may be after they are made.

SECTION 18.

DeEFInIvTIons.
SECT. 13. 13. In this Act, unless the context otherwise requires,—
Definitions. “Employer” includes any body of persons corporate or

uninecorporate and the legal personal representative
of a deceased employer, and, where the services of a
workman are temporarily lent or let on hire to another
person by the person with whom the workman has
entered into a contract of service or apprenticeship, the
latter shall, for the purposes of this Act, be deemed
to continue to be the employer of the workman whilst
he is working for that other person ;

“Workman” does not include any person employed other-
wise than by way of manual labour whose remuneration
exceeds two hundred and fifty pounds a year, or a
person whose employment is of a casual nature and
who is employed otherwise than for the purposes of the
employer’s trade or business, or a member of a police
force, or an outworker, or a member of the employer's
family dwelling in his house, but, save as aforesaid,
means any person who has entered into or works
under @ contract of service or apprenticeship with
an employer, whether by way of manual labour,
clerical work, or otherwise, and whether the contract
is expressed or implied, is oral or in writing ;
Workmen’s Compensation Appeals. 83

Any reference to a workman who has been injured shall, where SECT. 18.
the workman is dead, include a reference to his legal Definitions.
personal representative or to his dependants or other
person to whom or for whose benefit compensation is
payable ;

“Dependants ” means such of the members of the workman’s
family as were wholly or in part dependent upon the
earnings of the workman at the time of his death, or
would but for the incapacity due to the accident have been
so dependent, and where the workman, being the parent
or grandparent of an illegitimate child, leaves such a
child so dependent upon his earnings, or, being an illegi-
timate child, leaves a parent or grandparent so dependent
upon his earnings, shall include such an illegitimate child
and parent or grandparent respectively ;

“Member of a family ” means wife or husband, father, mother,
grandfather, grandmother, step-father, step-mother, son,
daughter, grandson, granddaughter, step-son, step-
daughter, brother, sister, half-brother, half-sister ;

“Ship,” “vessel,” “seaman,” and “port” have the same
meanings as in the Merchant Shipping Act, 1894;

‘Manager,’ in relation to a ship, means the ship’s husband
or other person to whom the management of the ship is
entrusted by or on behalf of the owner ;

“ Police force” means a police force to which the Police Act, 53 & 54 Viet.
1890, or the Police (Scotland) Act, 1890, applies, the City $3 @'s4 viet.
of London Police Force, the Royal Irish Constabulary, and c. 67.
the Dublin Metropolitan Police Force ;

“Outworker”’ means a person to whom articles or materials
are given out to be made up, cleaned, washed, altered,
ornamented, finished, or repaired, or adapted for sale, in
his own home or on other premises not under the control
or management of the person who gave out the materials
or articles ;

The exercise and performance of the powers and duties of a
local or other public authority shall, for the purposes of
this Act, be treated as the trade or business of the
authority ;

“County court,” “judge of the county court,” “registrar of
the county court,” “plaintiff,” and “rules of court,” as
respects Scotland, mean respectively sheriff court, sheriff,
sheriff clerk, pursuer and act of sederunt.

“ WORKMAN.”

Limit of £250 a Year.

In this definition it will be seen the word used is remuneration.
In the Schedule the word used is earnings. Is remuneration a

6—2
84

SECT. 13.
Definitions.

* Workman”
— £250 limit.

SECT. 13.

“Workman”
—Contract of
service,

Workmen’s Compensation Appeals.

word of narrower or more comprehensive signification or is it to
be regarded as synonymous with it? In Schedule L., par. 2 (a),
the words are obviously used interchangeably, and are therefore
to be regarded as synonymous. Therefore, in the case of a ship
steward, the Court held that in his remuneration must be
included not only his actual salary but the profits he made by
the sale of whiskey and the extra wages he received when
voyages were satisfactorily completed (Skailes v. Blue Anchor
Line). In this they followed Penn v. Spiers and Pond, where it
was held that tips received by a waiter in a railway restaurant
car had to be included in his earnings, and that it was for the
arbitrator to estimate their amount as well as he could, and
Dothie v. Macandrew, where the same rule had been applied to
board and lodging.

In Knott v. Tingle Jacobs, the rule as to tips was extended
still further so as to include tips which a carman received
from his employer’s customers for services specially rendered
them and entirely outside his contract with his master. See
further under Schedule I. (2) (a) under sub-heading Average
weekly earnings.

“Casual Nature, Employment of.”

Where a retired doctor farmed 215 acres and made a profit
out of doing so, it was held he did so in the way of business, and
that therefore a man casually employed was entitled to com-
pensation (Cotter v. Johnson).

“Contract of Service.”

“ Workman,” with the exception specified, means any person
who has entered into a contract of service with an employer as
stated. Nor is a man less a “workman” because he is doing
work for his own benefit. In Tombs v. Bomford a labourer was
the tenant of a farmer. A hedge on the farmer’s land was
13 feet high and shaded his garden too much. The farmer to
oblige him gave him 10s. to cut it down, when in doing it he was
injured. The fact he acted in the dual capacity of tenant and
workman did not debar him from recovering.
Workmen’s Compensation Appeals.

The contract of service is such a contract as establishes the
relation of master and servant, and is distinguished from a
contract for services, say, as between a solicitor and his client.
In Hughes v. Postlethwaite, the arbitrator found such contract
of service wanting. Here a vessel was sailed under the
sharing system. The captain had authority to trade between
any ports he pleased, the owner having no control in this matter.
The owner took one half the gross receipts after deducting the
first charges, etc., and the captain the remainder, out of which
he paid the crew’s wages. On these facts the arbitrator found
the owner and captain co-adventurers, and the Court of Appeal
held there was evidence on which he could so find. So the facts
in Cole v. Shrubsall were much the same and similarly decided.
A still stronger case is that of Hoare v. Barge “ Cecil Rhodes”
(Owner of), where a mate was employed by telegram, no definite
terms being agreed, but the evidence being the boat was always
run on the sharing system, and that the share would have been
27s. On these facts the arbitrator found the mate was not a
workman but a co-adventurer with the captain, and the Court of
Appeal agreed with him. In “ Victoria’’ (Owners of) v. Barlow
the evidence was the mate was employed by the owners, and the
dependants recovered.

The question of whether the relation was that of master and
servant or bailor and bailee came up in a case where a taxi-cab
driver wanted to recover compensation from its owners, who lent
it out to him on hire. Both sides produced evidence in their
own favour, and the arbitrator found for the owners, and ‘it was
held that there was evidence on which he could legally do so. The
relation between the parties was in no way affected by the fact
that as regards third parties the driver was by Act of Parliament
to be deemed the servant of the proprietor. In fact, if any
argument were to be drawn from this fact at all it would be in
favour of the owner. For if the driver were the servant of the
owner no Act would have been needed, and if he were not, the
Act would only put him in the position of a servant so far and no
further than it expressly stated (Bates-Smith v. General Motor Co.).

85

SECT. 13.
Definitions.

“ Workman ”
—Contract of
service,
86

SECT. 13.
Definitions.
‘¢ Workman ”

—Contract of
service.

Workmen’s Compensation Appeals.

Workman as distinguished from Independent Contractor.

Whilst the Act is most comprehensive it still preserves the
salient distinction of the previous Act in that it is limited to
workmen as distinguished from independent contractors. Thus
an applicant who tendered to do bricklaying for 1601. was held
not to be a workman within the Act, though he worked on the
job himself; as also a master slater; the certificated manager of
a firm; a partner who also worked as a foreman; two labourers
who worked in a quarry at so much a cubic yard, but without
being under the control of the master or tied down to hours;
and a man working under a sub-contract breaking up steel and
cinders (H'mp. L., p. 128). So also in the more recent cases of
Byrne v. Baltinglass District Council, where a builder sublet to a
mason, who was held an independent contractor, and Chisholm
v. Walker, where a man with a horse of his own bargained
with merchants to bring his horse and move timber for them
for 8s. a day, and in the very similar case of Ryan v.
Tipperary Council, where a wan with a horse and cart worked”
intermittently as he pleased, moving stones at the rate of 5s.
a day, the Court held the men were not “ workmen,” but indepen-
dent contractors. If the relationship of master and servant does
in fact exist it will not be taken away because such workman is
in a superior position, or a foreman, or divides wages received in
a lump for himself and others for piece work, or even if he
himself employs helpers or finds his own plant, say a cart
(Emp. L., p. 129).

Contract of Service. Employment found from Philanthropic
Motives.

It will be remembered that the Act is limited to workmen,
and apart from the fact that it is not to include any person
whose employment is of a casual nature, “workman” is to
mean by this definition any person who has entered into or
works under a contract of service . . . with an employer, ete.
The meaning of “ workman” has already been involved in several
cases where employment has been found from philanthropic
Workmen’s Compensation Appeals. 87

motives, and has again come under discussion in the case of SECT. 18.
MacGillivray v. The Northern Counties Institute for the Blind, Reape
which is a charitable institution to promote the temporal —Contract of

and spiritual well-being of blind persons residing in the Ti aoe
northern counties. MacGillivray had been a pauper, but on pres
the institution receiving him as an inmate the authorities paid

it 4s.a week'for his maintenance and 4l. a year extra for his
clothing. In addition it received 20]. a year from a Donald

Fraser Bequest Fund on account of this man. The institute

gave the man board and lodging and 5s. a month, and

on a year’s working were a few pounds out of pocket on his
account. The man was injured and sought compensation. For

him it was argued that the contract between the parties was one

of service and that the essentials of a contract of service,
freedom of contract, payment and power of selection and dis-

missal were present in his case.

For the institution it was argued the relationship was based on
charity and not on that of master and servant. The institute did
not carry on a trade or business in the sense of the statute, and
the injured man was not a workman earning wages. His status
was that of an inmate of a charitable institution, in which he
had to perform certain duties and was given certain privileges,
in part provided by the benevolence of other people. The
arbitrator found for the institution, but the Court of Session
reversed his decision. They found the man was employed under
a contract of service. ‘ He was not bound to go to the institute,
and the institute was not bound to receive him. He stipulated
that he would give his services for what they were worth, and
they in return stipulated they would give him board, lodging,
clothing, and 5s. a month in money”: Provided—which the
Court did not add—they received on his account from outside
charitable sources 341. 8s., in addition to his services.

This seems a most doubtful conclusion. The contract of
service referred to is that contract which establishes the relation-
ship of master and servant in the popular sense and usually
where there is a mutual interchange of advantages of an
88

SECT. 13.
Definitions.

‘Workman ”
—Contract of
service.

Philanthropic
institution.

Workmen's Compensation Appeals.

approximately equal value. Here such bargain was entirely
wanting. Outsiders paid the institution 341. 8s. to keep the
man, and even then he was a loss to them. What were his
earnings? Was there to be included in his earnings board and
lodging for which third parties had to find the money? Of
course he could go if he chose, equally he could be sent away.
So could a pensioner given a house rent free and paid 5s. a
month for keeping the garden tidy. But such are not the only
or conclusive tests of a contract of service, and here the
relationship was one founded on charity and charity alone,
and the institution would no more have thought of employing
him in a pure way of business than they would have expected
to make a profit out of him had they done so.

“WORKMAN” IN CASE OF DEATH TO INCLUDE DEPEN-
DANTS, ETC.

Rights not Derivative.

In a series of cases it has been arrived at that a dependant’s
right to compensation is not a derivative right but one inde-
pendent of the rights of the injured workman. In Howell v.
Bradford a settlement made under the Employers’ Liability
Act, 1880, between an employer and his workman was set
aside as not bond fide at the instance of the dependants
(see also under Section 1 (2) (b)), and in Jobson v. Cory,
where an arbitrator had actually ended compensation on
the ground the man had recovered, it was yet held that the
dependants were not bound by such finding, but were entitled
to have it decided as a fact whether the man had or had not died
from the accident. As between them and the employers the
matter was not res judicata that the man had recovered.

“ DEPENDANTS.”
Dependency a Question of Fact.

To fully appreciate the case of Keeling v. New Monckton
Collieries, which deals with the right to compensation of wives
separated from their husbands, one must have regard to the earlier
Workmen’s Compensation Appeals. 89

decisions. At first there was a disposition to interpret the Act with sxcr. 13.
a wide philanthropy which is not quite so general at present, Definitions.
Thus, to give a woman 800I. instead of 2501., a sympathetic Court aa
found her dependent on her husband and not on a son who ie a
contributed to her support (Senior v. Fountains). This view

of the law suited to a nicety the employers in the next case.

Here a mother wanted to recover for a son she had lost who

had contributed to her support. The Court, bound by their
previous decision, had to hold that as she was dependent on

her husband in law she could not be dependent on her son

in fact (M‘Clean v. Moss Bay Iron Co.). But employers were

not long to enjoy this immunity, and it was but a few short

weeks before a unanimous House of Lords held dependency

was a question of fact, and on this basis gave judgment for a
woman who in one terrible disaster had lost both husband and

sons (Hodgson v. West Stanley Colliery Owners). But once

more in this case of Keeling the Court of Appeal have held
dependency is in law and have given a woman compensation

when for twenty-two years she had been separated from her
husband and during the whole of the time had never received a

penny from earnings upon which she was deemed to have been
dependent. In giving judgment Cozens-Hardy, M.R., distin-
guished this case from Hodgson’s Case on the ground that the

only point decided by the House of Lords in that case was that

&@ woman who was dependent in fact and law on her husband

could also be dependent in fact on her two sons as well.

The presumption of dependency in law which had been laid down

in a long series of cases in the Court of Appeal was not affected

by the decision of the point involved, and as regards the judg-

ments, so far as they dealt with more than such point, they were

simply obiter, very instructive no doubt, but in no way material.
Certainly it seems a grave injustice and doubtful law that an
employer should be made responsible for a wife to whom a husband

has never given a penny, for twenty-two years, and who had never

been made to. But the point remains open and can now only be

settled by an authoritative decision in the House of Lords.
90

SECT. 18.
Definitions,

“ Depen-
dants ”"—
Question of
fact.

Workmen’s Compensation Appeals.

This has now been done and the decision of the Court of
Appeal has been again reversed. Dependency is a question of
fact and is not to be founded on a presumption of law.
(Keeling’s Case has now been followed in Devlin v. Pelaw Main
Collieries.)

How far Question of Fact affected by Presumption of Law.

With this decision we might conclude, the law was now
simple and settled. But this is far from being the case. To
entirely ignore the legal presumption is to err as much
on one side of the line as to found dependency on it is
to err on the other. Where is the line to be drawn. In
Keeling’s Case the facts were so obviously over the line that no
nice discrimination was needed, but it is equally clear that
the Lords did not lay down the rule that the legal presump-
tion is not to be considered at all. How far must it be
considered? First, what are the exact words to be construed.
“ Dependants”? means such of the members of the workman’s family
as were wholly or in part dependent upon the earnings of the
workman at the time of his death, etc.

Here, in the first place, it would be well to observe one
or two trifling words. The first of these is the word “were.” Itis
not “are” or “ will be,” but at the time of the death actually were
dependent, and dependent upon what? the legal liability? the
obligations of the husband ? the right to be maintained, etc. ? No!
but upon the earnings of the husband. Here, again, note the
dependency is upon, not the husband, but the earnings of the
husband. Here then we have, as the Lords say, a simple
question of fact. At the time of the death was the dependant
dependent upon the actual earnings of the deceased. We are
not entitled to speculate what would happen or might happen
in the future; the only facts to be considered are those existing
at the time of death. At some subsequent date the wife might
enforce her rights and become in fact actually dependent on
the money she then recovered, but this is a possibility that is
not to be taken into account. We are limited to the time of
Workmen's Compensation Appeals. 91

death. Then how can the presumption of law help her if BEGE, £3,
in fact she is at such time receiving nothing. One certain mal
way suggests itself. A woman may be deserted, and at the dants”—

Question of
time of the death may be actively prosecuting her right to fact.
maintenance, and then, as Lord Loreburn, L.C., concisely puts
it: “The fact that a legal duty lay upon the workman to
provide maintenance is an element to be considered, no doubt,
because people usually count upon getting what they are
entitled to get.” Therefore if an arbitrator was of opinion
that a woman was enforcing her claim and there was a
reasonable prospect of her doing so with success, he might
well find that so far she was dependent on her husband’s
earnings, and she would not be less dependent because she
had to collect them by legal process. Then, to go another
step, suppose at the time of death she had taken no active
step to enforce her rights, but clearly had not the slightest
intention of abandoning them. What the result would be in
such a case would clearly depend on the actual findings of
fact by the arbitrator. If the man was in receipt of earnings
and the wife by virtue of her status was in all reasonable
probability likely to actually benefit by those very earnings,
he could well find she was dependent on them. Can he go
further ? It is difficult to see how. So the same considerations
apply when a wife is compelled to leave her husband by his
conduct. When, however, a husband and wife part for their
mutual benefit, say, or when he goes to find work, more difficult
questions arise. Apart from legal presumption, it might well
be held that a good husband who had always supported his
wife would continue to do so. Then if at the time of his
death he had got work but had not actually sent money to
her, it might well be inferred he would have done so as soon
as he could. But suppose for some time he had only been
receiving just enough to keep himself. Grant his will to
help his wife to the utmost—still it would be a travesty of
language to find her dependent on earnings of which she had
never received a penny, and as regards the possibility they
92

SECT. 18.
Definitions.
‘* Depen-
dants ”°—

Question of
fact.

Workmen's Compensation Appeals.

ought to be greater in the future this could not be taken into
consideration.

Dependency of Child also Question of Fact,

In two recent cases the Court of Appeal have given full weight
to the decision of the Lords in Keeling’s Case. In the case
of Lee v. “Bessie” (Owners of), a seaman was drowned,
leaving a wife and two children. They had been married in
1898, and lived together until 1903, when she left him and took
their children with her, and went to live with a man named
Gold, who supported them, and by whom she had three
illegitimate children; and also in Polled v. Great Northern
Railway, where a wife more or less rightly refused to live
with ber husband, and left him and lived apart with their
one little girl. In both these cases the rights of the wife were
held governed by the decision, and as regards the children in
neither case was it made out that in fact they were dependent
upon their father. The decision of the Lords in Keeling’s Case
now brings the law of England into line with that of Scotland,
which has never recognised the theory of dependency in law
further than the right it gave of being reduced to dependency in
fact. This was the view taken in Briggs v. Mitchell, where an
illegitimate child had been handed over to the care of a Mrs. R.,
who practically entirely provided for it. On the death of its
mother it was sought to make the employers responsible for com-
pensation, but it was held it was not dependent on its mother,
and that they were not liable. This case has been followed in
Niddrie and Benhar Coal Co.v. Young. Here infants living with
their mother were maintained by their brothers, their father
having deserted them. For the first year or two the father gave
his children two or three shillings at a time, amounting in all to
about 21. Then an order for aliment was obtained against him,
and 17s. in the hands of his employers for wages was attached
under it on September 23rd, 1909. To avoid further payment
he changed his work and paid no more, dying about eighteen
months later on April 22nd, 1911. The Scotch Courts, who have
Workmen's Compensation Appeals. 93

always taken the view, dependency is in fact, were of opinion on SECT. 13.
such dependency existed here and found there was no valid claim Pe#mitions.
against the man’s employers. Speaking of the legal claim made,

they adopted the dictum of Fletcher Moulton, L.J.: “If on the
evidence there is any fair probability that the legal rights would

at any future time have been actually and effectually asserted by

the wife there is evidence of dependency.’ Of course, the prob-

ability here referred to must be the probability existing at the

time of the death, and even then it may be contended that at

such time no dependency on actual earnings in fact existed.

“MEMBER OF A FAMILY.”

In the case of McDougall v. McDougall, a son worked with
his father exactly as for any outside employer, and paid him so
much a week for lodging with him. It was still held he was not
a workman within the Act.
94

SECT. 14.

Special pro-
visions as to
Scotland.

43 & 44 Vict.
ce. 42,

SECTION 14.
Srecrat Provistons as to ScorLanD.

14. In Scotland, where a workman raises an action against
his employer independently of this Act in respect of any injury
caused by accident arising out of and in the course of the
employment, the action, if raised in the sheriff court and con-
cluding for damages under the Employers’ Liability Act, 1880,
or alternatively at common law or under the Employers’ Liability
Act, 1880, shall, notwithstanding anything contained in that Act,
not be removed under that Act or otherwise to the Court of
Session, nor shall it be appealed to that court otherwise than by
appeal on a question of law; and for the purposes of such appeal
the provisions of the Second Schedule to this Act in regard to
an appeal from the decision of the sheriff en any question of
law determined by him as arbitrator under this Act shall apply.

In the case of the Banknock Coal Co. v. Lawrie, the House of
Lords held that an action by the father of a deceased workman
claiming damages for the death by accident of his son against
the employers, based upon common law or alternatively upon
the Employers’ Liability Act, 1880, is nota claim by an employee
against his employers, and is not within the exception in the
Sheriff Courts (Scotland) Act, 1907, s. 80, by which actions for
damages in the Sheriff Court may at the suit of either party be
remitted to the Court of Session for jury trial. The effect of
that section is to modify this sect. 14 of the Workmen’s Com-

pensation Act, 1906.
The Sheriff Courts (Scotland) Act, 1907, sect. 830, here referred

to, is as follows :—

“In cases originating in the Sheriff Court (other than claims by employees
against employers in respect of injury caused by accident arising out of
and in the course of their employment and concluding for damages under
the Employers’ Liability Act, 1880, or alternatively at common law or under
the Employers’ Liability Act, 1880) where the claim is in amount or value
above fifty pounds, and an order has been pronounced allowing proof (other
than an order for proof to lie in retentis or for recovery of documents) it shall,
within six days thereafter, be competent to either of the parties, who may
conceive that the cause ought to be tried by a jury, to require the cause to
be remitted to the Court of Session for that purpose where it shall be so
tried: Provided, however, that the Court of Session shall, if it thinks the
case unsuitable for jury trial, have power to remit the case back to the
Sheriff, or to remit it to a Lord Ordinary, or to send it for proof before a
Judge of the Division before whom the cause depends.”
95

SECTION 15.
Provisions as To HEixistinc Contracts aND ScHEMES.

15.—(1) Any contract (other than a contract substituting the sEcT. 15 (1).
provisions of a scheme certified under the Workmen’s Compensa- Provisions as
tion Act, 1897, for the provisions of that Act) existing at the to existing
commencement of this Act, whereby a workman relinquishes Contract and
any right to compensation from the employer for personal injury go ¢ ¢) viet
arising out of and in the course of his employment, shall not, ¢. 37. ;
for the purposes of this Act, be deemed to continue after the time
at which the workman’s contract of service would determine if
notice of the determination thereof were given at the commence-
ment of this Act.

(2) Every scheme under the Workmen’s Compensation Act,

1897, in force at the commencement of this Act shall, if re-certified
by the Registrar of Friendly Societies, have effect as if it were a
scheme under this Act.

(8) The Registrar shall re-certify any such scheme if it is
proved to his satisfaction that the scheme conforms, or has been
so modified as to conform, with the provisions of this Act as to
schemes.

(4) If any such scheme hag not been so re-certified before the
expiration of six months from the commencement of this Act,
the certificate thereof shall be revoked.

Re-certification of Old Scheme.

In Godwin v. Admiralty Commissioners, it was held that all
the formalities prescribed by sect. 3 for the certifying of a new
scheme need not necessarily be complied with in the case of a

re-certifying under sub-sect. (8) of a scheme valid under the Act
of 1897.
96

SECT. 16 (1).
Commence-
ment and
repeal.

60 & 61 Vict.
ce. 37.
63 & 64 Vict.
c, 22.

SECT. 17.
Short title.

SECTION 16.
CoMMENCEMENT AND REPEAL.

16.—(1) This Act shall come into operation on the first day of
July nineteen hundred and seven, but, except so far as it relates
to references to medical referees, and proceedings consequential
thereon, shall not apply in any case where the accident happened
before the commencement of this Act.

(2) The Workmen’s Compensation Acts, 1897 and 1900, are
hereby repealed, but shall continue to apply to cases where the
accident happened before the commencement of this Act, except
to the extent to which this Act applies to those cases.

Accidents which happened before the Act of 1906 came into
operation were and are governed by the Act of 1897 in regard to
all their incidents except so far as relates to medical referees as
stated in the above sub-sect. (1): Mackay v. Rosie.

SECTION 17.

SxHort TIre.

17. This Act may be cited as the Workmen’s Compensation
Act, 1906.
97

SCHEDULES.
FIRST SCHEDULE.

ScaLE anp Conpittons or CoMPENSATION.

(1) The amount of compensation under this Act shall be— — scHED.I. (1).

(a) where death results from the injury—

(i.) if the workman leaves any dependants wholly
dependent upon his earnings, a sum equal to his earnings
in the employment of the same employer during the
three years next preceding the injury, or the sum of one
hundred and fifty pounds, whichever of those sums is the
larger, but not exceeding in any case three hundred
pounds, provided that the- amount of any weekly pay-
ments made under this Act, and any lump sum paid in
redemption thereof, shall be deducted from such sum,
and, if the period of the workman’s employment by the
said employer has been less than the said three years,
then the amount of his earnings during the said three
years shall be deemed to be one hundred and fifty-six
times his average weekly earnings during the period of
his actual employment under the said employer ;

(ii.) if the workman does not leave any such dependants,
but leaves any dependants in part dependent upon his
earnings, such sum, not exceeding in any case the
amount payable under the foregoing provisions, as may
be agreed upon, or, in default of agreement, may be
determined, on arbitration under this Act, to be reason-
able and proportionate to the injury to the said
dependants ; and

(iii.) if he leaves no dependants, the reasonable expenses
of his medical attendance and burial, not exceeding ten
pounds ;

(b) where total or partial incapacity for work results from the
injury, a weekly payment during the incapacity not
exceeding fifty per cent. of his average weekly earnings
during the previous twelve months, if he has been s0
long employed, but if not then for any less period during
which he has been in the employment of the same
employer, such weekly payment not to exceed one
pound :

Provided that—

(a) if the incapacity lasts less than two weeks no compensation
shall be payable in respect of the first week ; and

(b) as respects the weekly payments during total incapacity of
a workman who is under twenty-one years of age at the
date of the injury, and whose average weekly earnings

W.C.A. 7
98 Workmen's Compensation Appeals.

SCHED. I.(1). are less than twenty shillings, one hundred per cent.
shall be substituted for fifty per cent. of his average
weekly earnings, but the weekly payment shall in no
case exceed ten shillings.

DEATH RESULTS.
Assessment of Compensation.

SCHED.1.(1) Tamworth Colliery Co. v. Hall, deals with an extremely difficult

Ascent of and important point, the assessment of the compensation payable

a to partial dependants.

dependants. The amount payable to those wholly dependent is definitely
fixed, and is not in the discretion of the arbitrator ; that payable
to partial dependants has to be a sum reasonable and proportionate
tothe injury to the said dependants. In assessing such compensation
a not unusual custom has been to inquire what the actual benefit
or allowance received has been, to reduce it to a weekly average,
and then to multiply that weekly average by 156. This is done by
analogy to the direction for obtaining the amount in the
case of total dependency. The first case to break into this fairly
generally accepted practice was that of Osmond v. Campbell and
Harrison. Here a widow, earning 1s. 11d. a week by laundry
work, lost her husband by an accident. Wholly dependent. she
would have been entitled to 1561. As, however, she was only
partially dependent, the employer claimed she was only entitled
to the capital value of the amount of actual benefit she received,
which would be a pound a week less the expense of her husband’s
keep. The arbitrator, however, awarded her 150l., and the Court
of Appeal held he had not misdirected himself in so doing. He
had given effect to the fact of partial dependency by deducting
the odd pounds. It does not seem that any rule of law or pre-
sumption of law is to be deduced from this case. It was simply a
question of fact, Had the arbitrator given a sum reasonable and
proportionate to the injury ? and the Court held he had. This
case has been followed by others, with the result that in many
instances the compensation has been assessed on the basis of
total dependency with a sum deducted on account of the inde-
pendent income. But in the case of the Tamworth Colliery Co.
Workmen's Compensation Appeals. 99

the Court of Appeal were inclined to press Osmond v. Campbell SCHED. I. (1)
still further. Here a lad earned 6s. 11d. per week, which he paid ee of
to his father. Further, he helped him in his trade of a barber, aa al
which was worth another 6s. a week. The arbitrator found the dependants.
father was not dependent on such earnings of his boy, as it cost
him more than 6s. 11d. to maintain him, and the value of his
services could not be taken into account. If they were earnings,
then pro tanto as a member of the family he was not a workman
within the Act. The Court of Appeal (Farwell, L.J., dissenting)
held the case was governed by Osmond v. Campbell, and that the
cost of maintenance ought not to have been deducted. This made
it unnecessary to inquire into the nature of the boy’s service.
It is by no means clear that Osmond’s Case is an authority for
this proposition unless at the same time a due deduction be also
made for the capital value of the independent income. Here,
however, this would have more than swamped the amount
receivable, and so it is best to regard Osmond’s Case as simply
holding that on its own particular facts the arbitrator directed
himself correctly.
Farwell, L.J., practically agreed with the views of the arbitrator
and said: ‘There are two questions to be determined in cases
of this sort. First, is the claimant a dependant at all, and
secondly, if so is he or she wholly or partly so dependent? Both
are questions of fact. . . . There is no room for legal presump-
tion at all. Lord Halsbury, in the case of Main Colliery Co. v.
Davies, [1900] A. C. at p. 861, says, ‘Now my Lords as to that
question I do not think the legislature ever intended there should
be any sharp definite line drawn, but that in each case the
question must turn upon whether there is or is not what the
legislature has described as a condition of dependency as being
the test whether or not a person is entitled to any compensation
by reason of death.’ I understand the House to have decided in
the latter case, that a father whose child does in fact contribute
money to the common fund out of which the family is maintained
may be dependent on the earnings of such child, not that he
must be so. I cannot think that a father who receives his boy’s

7—2
100

SCHED. I. (1)

(a) (ii.).

Workmen’s Compensation Appeals,

wages of, say, 8s. a week, and expends 6s. a week on keeping him,

Assesement of can, Without doing violence to the English language, be said to

compensation

—Partial
dependants,

be dependent on the earnings of such boy. In truth the boy
depends on the father, although partially only, not the father on
the boy.” So far the House of Lords accepted both the con-
clusions and arguments of the learned judge. But in dealing
with the value of his services at home they took a somewhat
different view, conceding that in themselves they could not be
reckoned as part of the earnings, yet if the boy gave his father
services, such services might be set against his maintenance, and
so leave free his other earnings to increase the family fund.
“ There is,” said the Lord Chancellor, “no rule of law that I know
of to prevent the county court judge from looking at the whole
of the facts; there is no rule of law to say that he must so marshal
the receipts and outgoings as to set off the whole of the main-
tenance against the earnings, and so to negative the fact of the
dependency.” The point was apparently originated by Lord
Robson, who well said, “ Surely the value of the boy’s assistance to
his father in the business ought to be taken into account, not as
earnings but as lessening the actual cost of the boy to his father.”
On these lines the case was remitted to the county court for the
arbitrator to assess the compensation payable as a question of
fact, with directions he was to have regard to what the boy paid
the father, what the value of his services were, and how much his
keep cost.

Does this overrule Osmond’s Case and say the arbitrator there
found incorrectly in not having deducted the expenses of the
husband’s keep, or is it simply a case of other facts, other con-
siderations ? The arbitrator has simply to award a sum reason-
able and proportionate to the injury. That is the law and all
the law. If he thinks there is practically no difference between
a widow earning 1s. 11d. a week in a laundry and a widow
earning nothing, and thinks she ought to have as much as
if she were totally dependent, can he be said to have misdirected
himself if he admits such considerations weighed with him. The
truth is, every method now in use for assessing such compensation
Workmen's Compensation Appeals. 101

pressed to its logical limit may prove absurd in working. Pa
Suppose a mother receives 10s. a week from a son earning 2. assossment of
a week. Then in case of his death, if wholly dependent, she ‘™mPensation
would receive 800/. But suppose she was earning 1s. 11d. in a dependants.
laundry, is it not ridiculous to even suggest she should receive

s0 little as 10s. X 156, or less than 801. And this amount

would be the same whether she were earning 1s. 11d. or 11s. 1d.

Equally absurd is it to say that a mother who has never received

more than 2s. 6d. a week from a son, and is never likely to, is

entitled to receive the full 300I., less merely the capital value of

her independent income, which if 1s. 11d. a week might be again

assessed at only 61. To arrive at an amount reasonable and pro-

portionate to the injury the arbitrator must have regard to all the

facts, and no sounder reason for an award seems to have been given

than that by his Honor Judge Parry in Turner v. Miller, when

awarding 125]., arrived at by no particular method: “I con-

sidered that the son had been a substantial contributor to the

family for many years, and would have continued to be so had

he lived, and assessed the money to be paid on that basis.”

Here, then, he took into consideration the further fact—in

practice the most material of all—the likelihood of the allowance

being continued. In this he seems clearly justified. Of course

this likelihood must be based on the facts as existing at the time

of the death and would be independent of anything which subse-

quently happened, e.g., the death of the mother soon after her

son, who, had he survived, would undoubtedly have made no

further payments to those claiming through her.

“WHERE .. . PARTIAL INCAPACITY RESULTS.”
Weekly Payment.

The average weekly earnings prior to the accident is fixed once gcHep. I. (1)
and for all, and is an invariable amount. The wages subse- (m,
quently earned may naturally vary. To give effect to this, and
to save the parties coming before him for continual re-adjustment
of the amount, the arbitrator in the case of Newhouse v.

Johnson, fixed the weekly payment at two-thirds of the difference
102 Workmen’s Compensation Appeals.

SCHED. 1.(1) between 11. and what the man actually earned in any given

Partial week, with a minimum of 10s. per week. However convenient
Wetly wy: and simple this award, it infringed one of the cardinal prin-
mises, ciples of the Act that an arbitrator cannot dive into futurity,

but must decide every case on evidence actually before him.
Hence he must fix a definite amount even if it has to be varied
from time to time on a change of circumstances taking place.

SCHED.1.(2). (2) For the purposes of the provisions of this schedule relating
to “earnings” and “ average weekly earnings’’ of a workman,
the following rules shall be observed :—

(a) average weekly earnings shall be computed in such manner
as is best calculated to give the rate per week at which
the workman was being remunerated. Provided that
where by reason of the shortness of the time during
which the workman has been in the employment of his
employer, or the casual nature of the employment, or
the terms of the employment, it is impracticable at the
date of the accident to compute the rate of remunera-
tion, regard may be had to the average weekly amount
which, during the twelve months previous to the acci-
dent, was being earned by a person in the same grade
employed at the same work by the same employer, or,
if there is no person so employed, by a person in the
same grade employed in the same class of employment
and in the same district ; :

(6) where the workman had entered into concurrent contracts
of service with two or more employers under which he
worked at one time for one such employer and at another
time for another such employer, his average weekly
earnings shall be computed as if his earnings under all
such contracts were earnings in the employment of
the employer for whom he was working at the time of
the accident ;

(c) employment by the same employer shall be taken to mean
employment by the same employer in the grade in which
the workman was employed at the time of the accident,
uninterrupted by absence from work due to illness or
any other unavoidable cause ;

(d) where the employer has been accustomed to pay to the
workman a sum to cover any special expenses entailed
on him by the nature of his employment, the sum so
paid shall not be reckoned as part of the earnings.

AMOUNT OF COMPENSATION.
Rule for Obtaining Average Weekly Earnings.
By this para. 2 (@) we see the average weekly earnings are to
Workmen's Compensation Appeals. 103

be computed in such manner as is best calculated to give the eae L@)
rate per week at which the workman was being remunerated. Avarege
The rules for determining their average have been laid down eae
in the case of Perry v. Wright, and are now well known.
Practically speaking, one has to divide the amount earned by the

weeks in which it was earned. Thus, if a man takes a week’s
holiday he will not earn anything in it, nor will such week be
included in those worked. But as the idea of this Act is to
obtain an average for a period long enough for accidentals to
average themselves out—twelve months being the usual time
indicated by the Act—therefore, if there is part of the time

when he can earn nothing, no work being done in it, then for
working purposes his year would not be one of fifty-two weeks,

but one of fifty-two weeks less the weeks in which he could get

no work. Hence it has been laid down, and this part of Perry v.
Wright has been approved by the House of Lords in Anslow v.
Cannock Chase, that the average above obtained, viz., the amount
divided by the weeks in which it was earned, must be estimated

not for the whole time, but for such proportion as the working

time bears to the whole time. In Bailey v. Kenworthy a man earned

821. 2s. 1d., working forty-nine weeks, the full working time being

only fifty weeks out of fifty-two. Thus the average rate at which

‘ 831. 2s. 1d. ., 50
he was being remunerated was == ge x 59
Case a man earned 681. in thirty-three working weeks, and the
total weeks he could have worked was only thirty-six. His

average was therefore held to be er x as It will be

seen that by not including in the first divisor the three weeks
the man voluntarily did not work the average so far as that limb
of the fraction is concerned was by so much increased. Here
we may remark that disregarding weeks of voluntary absence
has not yet been approved by the House of Lords, but otherwise
this method must be taken as settled. In White v. Wiseman, not
yet reported, during a full twelve months there were periods of
slack work in which the man earned proportionately less wages.

In Anslow’s
104

Workmen’s Compensation Appeals.

eee, I. (2) By reckoning up the hours in which work could not be got the
a).

Average
weekly
earnings,

arbitrator estimated such period at about six weeks, which he
decided ought not to be considered. The other side pertinently
asked why not similarly deal with the extra good weeks as
well? The Court of Appeal held that all weeks must be included
(the exceptions for holidays having been agreed). There was
no single week without some substantial earnings. Some weeks
there was overtime, some weeks under-time. A parallel case
pointed out by Cozens-Hardy, M.R., was that of the cotton industry,
where half-time and overtime were usual incidents and where
both were taken into account in arriving at the rate of earnings.

AVERAGE WEEKLY EARNINGS.—Tips and Extras.

The question of how far tips and extras were to be included
in remuneration, so as to make a man’s earnings exceed 2501.,
was involved in Skailes v. Blue Anchor Line. For a discussion
of this, see ante, under Section 18, sub-heading Workman.

Knott v. Tingle Jacobs has also been there referred to show-
ing what further tips are to be considered as earnings. Here
acarman received tips from his employer’s customers for services
specially rendered them, but outside his contract with his master.
As a matter of theory—possibly practice as well—the knowledge
that such tips were receivable clearly made the engagement that
much more valuable, and without them the presumption would
be the wages would have had to have been so much higher.

Concurrent Contracts.

How far a reservist’s pay in the Navy could be treated as
received under a concurrent contract was lengthily discussed in
Brandy v. S.S. “ Raphael,” for which see under Section 9.

Grade of Employment.

The question of grade was involved in the Scotch case of
Babcock and Wilcox v. Young, where a man who had worked as
boilermaker and then became a labourer was held to be only
entitled to compensation on the basis of his earnings as a
labourer. But it is a question of fact whether there has been a

y
Workmen's Compensation Appeals. 105

definite change of grade. A change of grade imports some sense ao 1.@)
of permanency and cannot be inferred from a change of employ- ia
ment of a temporary nature. Thus in Jury v. “ Atalanta” Ds
(Owners of ) the deceased was employed as a hobbler, to assist in tole a ae
the sporadic unloading of a dredger or sand sucker which made

two or three voyages a week. His son, mate on the boat, having

met with an accident, he asked to be taken on in his place until

he could resume. Whilst so engaged he was killed. In the ship’s
articles he was described as mate, but, as Kennedy, L.J., said, “ it is
fallacious to treat a mere name as constituting a degree or grade,”

and the grade had to be determined by the actual facts. So also,
though the arbitrator had found the man was in the grade of a

mate at the time of his death, yet as the facts from which he
inferred this fact were not in dispute it was open to the Court to

infer otherwise, which they did. The materiality of this decision
cannot be overrated. It is not every occasional up or down

that constitutes a change of grade. Men in one grade are often
employed to do temporarily the work of a man in another. Thus,

in Edge v. Gorton, amongst master carters there appear to be

two classes of workers, those in regular employ usually shown by

their having their own horses, and those casually employed as
wanted, and it would seem none the less casual because engaged

daily with great regularity. So the men are further subdivided

into carters and teamsters, the carters driving one horse, the
teamsters two. Edge was employed as a casual carter at 4s. 2d.

a day, and when a teamster was drunk was given his place and

wages of 48. 5d. or 4s. 6d. a day. On these facts the arbitrator

added all the earnings together, deducted, as agreed, one week

for holidays and divided by nine as the relevant period in which

the wages had been earned. On appeal it was contended he
should have based his award on the wages earned as teamster

only. But the Court held no grade of teamster had been
established, and that in other respects in assessing the compensa-

tion the arbitrator had used his discretion rightly. These what

we may term mixed grades cause some small amount of theoretical
difficulty, but practically they seem effectively dealt with as here
106

Workmen’s Compensation Appeals.

—_ 1.) done. What is desirable is to take a man’s earnings over &
e).

Average
weekly
earnings—
Grade of
Employment,

sufficiently long period that extras and deductions, and it would
seem the ups and downs of grade where a man is in a more or
less changeable kind of employment, may have time to average
themselves out. Then sub-par. (a) states what is to be done.
The primary object is the computing the average weekly earnings
in such manner as is best calculated to give the rate per week at
which the workman was being remunerated. This gives the
arbitrator the widest discretion, and if in a case of this sort he
says, “I think the best manner in this particular case is to
have regard to the man’s own history and to consider all his
earnings of which I have an account,” it seems he will make an
award on the grounds and in the form the Court of Appeal will
thoroughly approve of. As to the subsidiary direction given in cases
of short periods of employment, Farwell, L.J., says, in Perry v.
Wright, [1908] 1K. B. at p. 446—and his words have always been
accepted with complete approval—‘“ In my opinion, the provisions
of this par. 2 are intended as a guide not as a fetter, otherwise it
would be impossible to apply some of these provisions to the case
of casual employment at all.” So also, referring to the wide
discretion given to the arbitrator, Cozens-Hardy, M.R., says: “No
mandatory words are there used; the phrase is simply ‘regard
may be had.’”’ Of course, it is to be noted these remarks only
apply to where there has been no definite change of grade. Ifa
porter promoted to a guard were killed the same day, in such a
case his compensation would have to be estimated on the basis of
his being a guard. The first fact to be found by an arbitrator is,
has there or has there not been a change:of grade? Prior to
Edge v. Gorton there had been the case of Dobson v. British Oil
and Cake Mills, Ltd. In this case two grades of men were
employed, grinders and casual labourers, the former being on the
regular staff. Here the workman who had been a grinder and
hoped to be regularly employed as a grinder again, was employed
asa labourer. Though nominally a labourer he repeatedly did
his old work, that of a grinder. The arbitrator based his award
on all his earnings, viz., 32. as a grinder and 2l. as a casual
Workmen’s Compensation Appeals. 107

labourer. The employers objected because he had been employed scHED. I. (2)
as a labourer and during the two weeks before the accident had Peri
actually been doing the work of a labourer. But the Court of weekly

: earnings—
Appeal found the arbitrator had done what the Act directed him Grade of
to do, viz., computed the average weekly earnings in the manner ern
best calculated to give the rate per week at which the workman
was being remunerated. Surely the grade the man was in was
not that of a labourer pure and simple, nor yet that of a grinder,
but that of a labourer who, owing to special qualifications, was
likely from time to time to make considerable additions to his
earnings. The man’s grade was one special to himself. If his
earnings were to be computed from those of others surely they
should be from those of others who had both his qualifications
and opportunities as well.

(3) In fixing the amount of the weekly payment, regard shall scHEp.1.(3)

be had to any payment, allowance, or benefit which the workman,
may receive from the employer during the period of his incapacity,
and in the case of partial incapacity the weekly payment shall in
no case exceed the difference between the amount of the average
weekly earnings of the workman before the accident and the
average weekly amount which he is earning or is able to earn in
some suitable employment or business after the accident, but
shall bear such relation tothe amount of that difference as under
the circumstances of the case may appear proper.

REGARD SHALL BE HAD.—Overlapping Benefits under M. S. A.

In Kempson v. “Moss Rose” (Owners of), an injured seaman,
on March 9, was taken to the hospital and kept there until
June 16. Under the erroneous idea his employers were liable
under the Merchant Shipping Act, 1894, the captain promised
they would be responsible for his expenses there. After some
correspondence with the hospital authorities the employers, in
settlement of their claim for 18/. 8s., paid them 91. 8s. 9d.,
which was the full amount of compensation due to the man
from the date of his accident until he left the hospital.

The man then claimed compensation for the same period, and
the arbitrator found that, as the payments had been made without
his knowledge or concurrence, regard should not be had to such
108

SCHED. I. (8).
Amount
weekly
payment.
Regard shall
be had—Over-
lapping
benefits.

Workmen's Compensation Appeals.

payments in assessing the compensation due. On the other
hand, the Court of Appeal thought it one of the clearest cases
ever brought before them, and that it should. The very end of
the clause was to enable an employer,to help his injured servant
without running any risk of his sympathetic action rendering
him liable to pay double compensation. The argument for the
seaman had been advanced that it was not right that employers
should be able to pay away without his consent all or more than
his compensation, possibly only ostensibly for his benefit. To
this the reply was that such payments were not necessarily to be
deducted, but only that the arbitrator must have regard to the
fact that the workman has received a benefit from his employer
during the course of his incapacity.

McDermott v. “ Tintoretto,” was also a case arising out of an
accident to a seaman.

By sect. 7 (1) (e) it is enacted :—The weekly payment shall
not be payable in respect of the period during which the owner
of the ship is under the Merchant Shipping Act, 1894, as
amended, etc., liable to defray the expense of maintenance of the
injured master, seaman or apprentice. Under this section the
owners claimed they were not liable to pay compensation for such
period, and then claimed that regard should be had for all the
payments they had made on the seaman’s behalf during the self-
same period. The only amazing fact is that it required the
House of Lords to decide that all that was intended was that the
seaman should not receive overlapping benefits. See also under
sect. 7 (1) (e).

In Doyle v. Cork Steam Packet Co. a stevedore had been injured,
but the arbitrator thought that he could have been well much
sooner if he had wanted. The respondents had paid him 17s. 6d.
compensation up to October 11 and then stopped it. The arbitra-
tor found he was only entitled to reduced compensation from
October 11 to December 6, but he was also of opinion the
man was fit for work early in August, and between August and
October 11 ought not to have received all the compensation he
did. For this period he had been overpaid and he set off such over-
Workmen’s Compensation Appeals. 109

payment against 9s. a week which he would have given between scHED. I. (8)-
October 11 and December 6, and awarded nothing. In other a
respects the award and facts found were not consistent, and the Payment.
case was sent back to be reheard, but here the point was taken ama
for the employers the setting off of the overpayments was aes
justified by this paragraph which says regard shall be had. But

the Court held this paragraph did not justify any such payment.

The full payments had been paid and taken without any demur

on either side and could not be reopened. We think it would be

quite different if an employer gave the workman notice he was

being overpaid, applied for review, and then on the hearing

asked the arbitrator to have regard to such overpayments on fixing

the new amount. Some such machinery as this is necessary

to make an award according to Form 24 work justly. See also

under sect. 1 (8).

THE WEEKLY PAYMENTS SHALL IN NO CASE EXCEED.  scHED.1.(3).

On this point an excellent judgment was given by his Honor
Judge Lumley Smith. A man who had been earning 32s. 6d.
a week lost his hand, and got light employment at 25s. a week.
He claimed as compensation the difference, 7s. 6d. The
arbitrator awarded 3s. 9d., saying, “The Act says that regard
is to be had to the difference between what he has now and what
he had before. I think the idea of the Act is that half the loss
should be awarded him. As long as he was earning nothing he
got half 32s. 6d. I do not think it an absolute rule, but the
common sense of it is that, having got 25s., now he can have half
the difference . . . and I shall award 3s. 9d. I think the inten-
tion of the Act is that each party should sustain a certain amount
of monetary loss.’”” The Court of Appeal held he had not bound
himself by any rule of law, but had correctly exercised his dis-
cretion, and approved what he had done (Humphreys v. City of
London Electric Lighting Co.).

Circumstances at Time of Review to be Considered.
Here, however, we must note the further most important decision
given in the case of Bevan v. Energlyn Colliertes, as to the
110

Workmen’s Compensation Appeals.

SCHED.I.(8) assessment of this weekly payment on review, or where there has

Weekly pay-
ments—How
estimated on
review.

been a change in the circumstances of the case. In the first
place the datum line from which all subsequent variations are to
be measured is the average weekly earnings as determined or
agreed in the firstinstance. This is fixedand isa constant. The
varying item, the amount actually being earned, has to be
determined from time to time whenever review is demanded.
In this case the arbitrator, having found these amounts,
held himself bound to have regard to them alone, and to nothing
else, and on such basis fixed the amount at half the difference
between them. Thus originally the man had been earning
2l. 198. 1d. a week, and at the time was only earning Il. 16s.
This resulted in a difference of 11. 8s. 1d., of which the arbitrator
gave him 11s. 7d. as compensation. But it was shown that
owing to the Hight Hours Act wages generally had con-
siderably fallen, and that even if he had been in full work on full
pay he could not have earned more than 21. a week. That is, his
total loss due to his incapacity was not more than 4s. a week.
To, therefore, give him 11s. 7d. was to give him 7s. 7d. a week
more than if he had never been injured. The question was,
was the arbitrator right in having regard to no other matters
than the two items; what the man was then earning and
what he had been earning? According to the reading of the
old Act, as construed in James v. Ocean Coal Co. he certainly
was, but in the present Act a further qualification has been
deliberately added. The amount is not to exceed such difference,
and it shall bear such relation to the amount of that difference as
under the circumstances of the case may appear proper. These
words in italics do not appear in the old Act, and we may take it
they were inserted for the very purpose of modifying it. There-
fore it follows that whilst an arbitrator is still bound by these
two items in determining the difference, yet when he has to
decide what proportion of that difference he has to give, say
10, 20, 50, 70 per cent., or the whole of it, all the circumstances
of the case are to be considered. And such circumstances
obviously include a general fall of wages such as was shown to be
Workmen’s Compensation Appeals. 111

the case in this instance, as well as the fact that his injuries were scHED.I. (3).
very slight. It was contended for the workman that under these eee
words only matters personal to him were to be considered. estimated on
Farwell, L.J., was of the opinion they were more general in their

effect, and ‘‘ were added to give an arbitrator a freer hand to do

what is just,’ and Cozens-Hardy, M.R., said it was not competent

for a judge to say he would not go into extraneous circumstances,

but would only have regard to things personal. So, also, evidence

was given of the average wages of nineteen other colliers in a

similar position to that of the applicant, and was considered relevant

to theinquiry. No doubt this decision will largely widen the scope

of such inquiries, as well as their number, and if every variation

in the general rate of wages is to afford good grounds for

seeking review, either on the part of the master or the part of

the man, there must be an immense number of cases where some

change must be required.

ABLE TO EARN.

This enactment is probably of the most general importance in
the whole statute. Other points may be of moment in an occa-
sional instance; this practically affects every case where a
workman does not succumb to his injury.

The subject here presents itself under these three heads :-—
(a) Able to earn generally; (b) Able to earn as a physical fact,
and the steps taken by the man to get well ; and (c) the essentials
of suitable employment.

Here first let us read shortly the different parts of the Act which
have to be construed together to arrive at what is exactly enacted.

Sect. 1 (1) states" that where personal injury by accident .. .
is caused to a workman, his employer shall be liable to pay compen-
sation in accordance with the First Schedule.

The material words so referred to, Schedule I. (1) (0), are, where
total or partial incapacity for work results, a weekly payment
during the incapacity, not exceeding fifty per cent. of the average
weekly earnings during the previous twelve months, and then the
words of this, par. (8), in the case of partial incapacity the weekly
112 Workmen’s Compensation Appeals.

SCHED. I. (3). payment shall in no case exceed the difference between the amount

Able toearn. oF the average weekly earnings of the workman before the accident,
and the average weekly amount which he is earning or is “ able to
earn in some suitable employment or business after the accident.”

ABLE TO EARN (a) Generally.

Where Total or Partial Incapacity for Work Results.

During the past year several cases on these words of first im-
portance have been decided in the House of Lords, but practically
confirming the view of the law taken by the Court of Appeal.

As a first impression one would take it that these words were
limited to physical incapacity only. Such has largely been the
conclusion of the Scotch Courts. But in England, as early as
Clark v. Gas Light and Coal Co., a decision on similar words in
the old Act, a different view was taken.

There Collins, M.R., stated the law much as it has been accepted
ever since: “ If the applicant, after repeated attempts, could not
find an opportunity of putting his diminished powers of working
into operation, he was justified in saying that his wage-earning
capacity was not the same asbefore. I agree that the fluctuations
of the market ought not to be taken into consideration. No
doubt they are quite outside the question of compensation. I
am not in any sense giving effect to those fluctuations in any
undue sense. It was competent to the county court judge in
the circumstances of this case to hold that the applicant’s
opportunity of finding employment has been narrowed in con-
sequence of the accident and that it is impossible for him to earn
the same wage as he might have earned if he had had a wider
choice.” Under the present Act the law has been succinctly
summed up in the fragmentary report of Dobby v. Pease.

The Master of the Rolls: “I think this Court has more than
once laid down that the employer does not guarantee the labour
market.”

Meynell (for the workman) asked for the direction: “ The
fact that a man’s area is circumscribed by reason of the accident
is a matter which may be taken into consideration.”
Workmen’s Compensation Appeals. 113

Kennedy, L.J.: ‘‘ This is merely saying in other terms that he scHED.I. (8).
is incapacitated by the accident; if he would have got work eee
but for the accident, but cannot otherwise, it is because of the
accident.”

Farwell, L.J.: ‘‘ You see the judge has not taken notice of that,
but has simply assumed that the employer is bound to give work
when he has not got it, which is not the meaning of the Act.”

In this case a workman who had lost an eye had been dis-
charged owing to slackness of work. He then applied for
compensation and received it, but the case was sent back for the
arbitrator to determine whether the man’s inability to earn wages
was due to his incapacity or to the state of the labour market.

This doctrine of incapacity extended to inability to get work
was pressed to more than a logical conclusion in Radcliffe v.
Pacific Navigation Co. There a ship’s butcher two years after
losing a finger had full compensation restored to him because he
proved his accident had so circumscribed his area of opportunity
that he could not get work. Of course, if he did prove such
fact it was pretty wonderful, but the award was approved on the
basis he did. By limiting incapacity to physical incapacity
the Scotch Courts avoided any such extreme case as this and a
very great deal may be said for their view of the law which took
its final form in Boag v. Lockwood Collieries, Lid. Then the
question came before the House of Lords and this case was
incidentally disapproved by Lord Shaw in Ball v. Hunt, and
finally overruled in Macdonald v. Wilsons and Clyde Coal Co.
In this case a man who had been injured and was in the employ
of the respondents was dismissed owing to their having to reduce
the number of their men. The workman claimed that he was
now thrown on the open labour market and that owing to his
injury he could not, notwithstanding all his efforts, obtain any
employment, and he asked for an opportunity of proving that
his want of success was due, not to the state of the labour
market, but to his incapacity and the very limited type of work
he could do. The Scotch Courts held this was not a relevant
inquiry, but the House of Lords decided it was.

W.C.As 8
114 Workmen’s Compensation Appeals.

SCHED.1.(3). In Radcliffe’s Case we had this doctrine pressed to its direct
> erent: conclusion ; in the case of Ball v. Hunt to its indirect conclusion.
A man many years before the accident in question had lost the
sight of one eye without altering its appearance. As he was
able to do his work with one eye the loss of sight did not affect
his earning capacity. Then he met with an accident to this
same sightless eye which necessitated its removal. Although it
had not affected his capacity in fact and he was just as able to
do his work as before, it seriously affected his market for
selling his work, for no one would employ a one-eyed man. The
Court of Appeal said his incapacity, if any, was not due to his
accident; the House of Lords said if was. Why, they asked,
could he not sell his work when before he could? Because
of the accident. If we may differ we should like to say it was
not because of the accident—certainly not as causa proxima—but
because of the Act, unsound in principle, abused in practice,
and not allowed to be contracted out of. But for the Act
employers would not mind whether a man had one or two eyes so
long as he did his work. Thus the Act required the employer to
compensate for incapacity which it and it only had caused.
Another most important decision in the House of Lords is that
of Hargreave v. Haughead Coal Co., which authoritatively decides
that an arbitrator, if he sees fit, may end compensation once and
for all. Here a man had his right eye destroyed by accident.
With the left eye he could still do his work. Then cataract
threatened this eye as well. But this cataract was in no way
due to the accident to his right eye, and as it was the coming on
of the cataract that threatened his then capacity and not the
previous loss of the right eye, the arbitrator ended the compensa-
tion, and as a mere question of law the Lords held he was
right in doing so. Payments may be ended. But as to the facts.
Was there any evidence of no incapacity ? When the man should
actually lose the sight of his left eye through cataract, but for
his, accident his right eye would be available and he would be as
capable as ever of doing his work. Then, will not his incapacity
be due to his accident and is it not the very case where a suspen-
Workmen's Compensation Appeals. 115

sory order ought to be made? The case of Weir v. N. B. R. 8CHED,1. (8).
was dealt with rather differently. On proof that the workman Genie
was earning the same wages as before the accident, the arbitrator,
in accordance with the usual Scotch practice, ended the com-
pensation. But the case was remitted to him to rehear without
any expression of opinion whatever as to the merits, but simply
with the intimation that it was open to him to make a suspen-
sory order if in his opinion the facts warranted his so doing.

These cases read together are certainly instructive: Ball's Case,
incapacity due to the Act itself. Radcliffe’s Case, a trumpery
hurt, after two years’ lapse, followed by restoration of full com-
pensation, and Hargreave’s Case, pitiable in the extreme and
compensation ended. However, one thing is certain and satis-
factory, the law laid down on such facts has no uncertain ring.
So what such cases further mean is this: more and more is left
to the arbitrator to determine. With cases so widely divergent
any conclusion is practically open to him. And this is well.
With over 4,000,000/. compensation paid yearly, mostly in small
sums and with so little grumbling, it is evident the work in the
first instance is done both well and to the satisfaction of the
parties. If arbitrators had the power of assessing a weekly sum
once and for all in the case of permanent physical incapacity,
and if contracting out were permitted in the case of those once
injured, we believe many of the anomalies we have referred to
could find a simple and effective remedy.

We will now deal with (b) able to earn as a physical fact, and
the steps taken by the man to get well, and with (c) the essentials
of suitable employment.

As regards both, the law governing them are the broad general
principles we have just stated, but though other cases do not
carry us much further in this respect, yet in the many ramifica-
tions of the subject they are of no little value as illustrations
and guides, even if not required as actual authority.

ABLE TO EARN (6) As @ physical fact.

Dealing first with ability to earn as a physical fact, we meet
8—2
116 Workmen’s Compensation Appeals.

SCHED. 1. (3). with few or no difficulties in law. Each turns on a question of

ee ae fact. Has the man or has he not physically recovered? If he

physical fact. has, i.¢., entirely, and is the same man as before his accident, we
may take it his incapacity has also ceased and that his employer’s
liability should be ended.

Where there are outstanding effects of the accident remaining
some nice questions arise as to how far a man can be said to
have so physically recovered that his earning capacity is no
longer affected. This, we have seen, is a question of fact, and we
have just seen that in so serious a case as the loss of an eye
an arbitrator may still find the incapacity ended. In Coz v.
Braithwaite, another case where a man lost his eye, the Court of
Appeal held that there was no evidence on which the arbitrator
could find the incapacity was ended, and were of opinion in such
@ case & suspensory order should have been made. It is noé con-
clusive the physical results of the accident are ended because a
man for the time being is no longer incapacitated from earning
full wages. If the physical results remain and are so serious as
that of the loss of an eye, there may easily and probably will be
at some future moment recrudescence of the incapacity for work
as well. But it is a question of fact. Nor must we take it that
on this point the Court of Appeal are at variance with the decision
of the Lords in Hargreaves Case. Thus, in Emmerson v.
Donkin, an apprentice got his hand mutilated, but otherwise
recovered, and the arbitrator made an order ending liability.
Nor would he make a suspensory order, though there was
no doubt the lad was permanently injured. His counsel
tried to contend—not without reason—that where there was
permanent injury, like mutilation, there was always a possibility
of the man suffering from it at a future date, and that no order
should be made ending liability. But the Court, having taken
his point, held incapacity or no incapacity was a question of
fact, and they could not interfere with the arbitrator’s
discretion.

If an arbitrator in the case of mutilation is entitled to find the
incapacity is ended, it is an d@ fortiort conclusion he is entitled to
Workmen’s Compensation Appeals. 117

do so in less serious cases, as when a wrist was alleged to have SCHED. I. (8).
been broken (Reyners v. Makin). ae

Again, a similar point came up in Parry v. Rhymney, not yet Physical fact.
reported, where a man who had badly injured a finger claimed
he could not do his old work asatimberman. The arbitrator
had heard the medical evidence and then referred it to a medical
assessor, who, on what he saw and on the evidence of the doctors
furnished him, was of opinion he could. This work having been
offered him and refused, the arbitrator ended the compensation,
making, however, a declaration of liability in case any ill-results
should again recur through the injured finger.

In Brown v. Thornycroft a workman lost an eye but was taken
back to work by his employers, who admitted liability. He
evidently could not do it properly because of his injury, and this
was the arbitrator’s view, though the employers dismissed him
for alleged misconduct. The man then sought for work and had
to do that of a casual labourer. The arbitrator found the
accident had practically reduced him to the condition of a casual
labourer, so that he was able to earn only something about 22s.
or 23s. instead of his old wages of about 35s., and gave him
evidently substantial compensation—the amount is not stated—
to make up for his loss of earning capacity. This was clearly a
most satisfactory award. The man’s earning capacity had
seriously been diminished and the arbitrator seems to have dealt
with it in the best possible way.

Again, in “ Warwick”? (Owners of) v. Callaghan, a workman
lost a finger by accident. He was paid 16s. a week compensation,
reduced to 5s. on partial recovery. His employers then gave him
work at full wages, and after seven months applied for a termina-
tion on the ground the man had recovered his full wage-earning
capacity. The arbitrator held that the man was permanently
partially incapacitated and continued his award, and it was held
there was evidence on which he could so act.

An intervening cause which of itself would cause incapacity does
not necessarily operate to deprive a man of compensation who has
previously been incapacitated by an accident. Thus, aminer who
118

Workmen's Compensation Appeals.

SCHED. I. (3). injured his hand was for some years able to do light work which

Able to
earn—As &

his employers found him. Then he had to give it up on account

physical fact. of heart disease. The fact he had done light work was no proof

his incapacity due to the accident was ended, and as the burden
was on his employers to show it was, which they were not able
to do, they failed in establishing their case (Cory Bros. v.
Hughes).

Of course, in every instance, before dealing with other aspects of
a cage, an arbitrator must decide the fact on evidence whether
there was or no any incapacity due to the accident. Thus, in
Evans v. Cory, a miner had been injured by rupture and paid
compensation for some time. Then his employers thought if he
underwent an operation or even wore a truss he could do his
work as before. On the advice of his doctor he would not try, so
his employers stopped further payments and he took proceedings.
At the hearing the arbitrator found in his favour, satisfied he had
acted reasonably in following the advice of his doctor. As,

‘however, he did not try the question whether the man was or

was not in fact incapacitated when his employers stopped com-
pensation the case was sent back to him to be reheard on this
point,

Now let us consider those cases where a man has or has not
acted reasonably in the steps he has taken to get well.

In Burgess v. Jewell a man had his little finger crushed by an
accident. Part was amputated, and but for slight adhesions got
well. These the employers contended work would break down,
and the arbitrator agreed with them and ended the compensation,
because, as he found, the man unreasonably refused to try such
cure. But the man proved that the hospital doctor advised him
that his best course was to have another piece of his finger cut
off, which he had submitted to. On these facts the Court of
Appeal held there was not a tittle of evidence the man had acted
unreasonably. Their decision emphasises the old rule that in
all such cases the one test is, has the man acted reasonably or
has henot? If he has, thatis the most that can be asked of him.
The case of Moss v. Akers, is not so satisfactory. Here
Workmen's Compensation Appeals. 119

also a workman had injured his hand; his employers contended, SCHED. I. (8).
and the medical referee agreed with them, that exercise would soon oe .
cure the incapacity. But on the advice of his own doctor, Paysical fact,
that it would do no good, the man had refused to so exercise it.
The arbitrator found as a fact, and the Court of Appeal held there
was evidence to justify him, that the man had not acted unreason-
ably. Apparently it would seem that as exercise would have done
no harm and might have done some good, he should have tried,
but probably other facts influenced the arbitrator which did not
appear in the report. In David v. Windsor Steam Coal Co.
the arbitrator gave the salutary decision that a miner who had
physically recovered could not claim compensation because,
through idleness and loafing, he had let his muscles get so soft
he could do no work.

Walton v. South Kirby Collieries was somewhat different. Here
@ miner was injured, but on the hearing the arbitrator was of
opinion his then incapacity was due to his muscles being soft
owing to not working. He accordingly gave him the compensa-
tion due at 11. a week, then for four months at 10s. a week, after
which it was to be reduced to 1d. The form of award was bad.
An arbitrator may not prophesy (Baker v. Jewell). What he
should have done was to have reduced the amount and adjourned
the hearing for the four months and then have adjudicated on the
then facts. However, the award was not challenged, and had
to be accepted as good. Accordingly the compensation auto-
matically became reduced to 1d. But the man was still in a bad
way. He had applied for light work which he could not get, and
on trying his old work again set up his old injuries. These were
so bad that he had to go to the infirmary for a fortnight,
remaining on afterwards as an out-patient from March to
December. He then applied for review of the order, which was
now for only 1d. The arbitrator held there was no change of
circumstances. His view was still the same; his condition was
due to flabby muscles due to not working. He had been given four
months in which to get right and had not done so, and therefore
it, and not the accident, was the cause of his incapacity. The
120 Workmen’s Compensation Appeals.

SCHED.1.(3). Court of Appeal were clearly of opinion there had been

pane a change of circumstances which ought to be inquired into
physical fact. and gent the case back for the amount of compensation to be
settled.

Cases of Neurasthenia.

Here we come to those cases where the only outstanding
incapacity is due to neurasthenia. There have only been one or
two more or less unimportant decisions on this point during the
past twelve months. As regards these, once again reading shortly
the material words of the Act together we have :— Where personal
injury by accident . . . is caused to a workman compensation shall
be payable ... where .. . partial incapacity results.

To set the Act in operation there must be (1) personal injury
caused by accident, and (2) it must result in incapacity.

As regards the personal injury referred to the words are
perfectly general. It may be physical, it may be mental, there is
no reason it may not be moral. A man may have his nerves
shattered as well as his muscles bruised or bones broken, and
from an energetic industrious worker he may become an idle,
worthless fellow. All these may be equally due to personal
injury by accident, and when from all or any of these causes
incapacity results, compensation becomes payable. The burden
of proof of such incapacity is on the workman, and evidence of
its discharge is usually found in the award given or in the
registered memorandum of an agreement made between the
parties.

The next stage is when the employer wishes to vary or end
such award. Then the burden of proof is on him to show there
has been a change of circumstances sufficient to warrant the order
he seeks. And what has he to establish ? Not unfrequently an
employer thinks he has done his part when he shows that the man
is no longer suffering from anything but neurasthenia. But
this is not enough. As we have just mentioned, nervous break-
down may be as much the result of the accident as actual physical
Workmen’s Compensation Appeals. 121

injuries, and may just as much result in incapacity. Hence where SCHED. I. (8).

° ° ° Able to earn—
neurasthenia or other such effect is outstanding the employer ‘As a physical

must show, not merely that the man is suffering from neuras- Ree ane
thenia, but that the neurasthenia is no longer due to the
personal injury caused to the workman, but is due to some other
cause. This is like the case we have already mentioned, where the
arbitrator found that a miner’s incapacity was not due to the
accident but was due to the soft state of his muscles, due to his
loafing. But cases where neurasthenia is involved are not so
simple as this, especially when a man’s bona fides is not
questioned. A man may otherwise be wholly recovered and yet
one of the results of the accident may be his genuine belief he is
hopelessly incapacitated. So the condition may be aggravated by
his refusing legitimate means of cure, not from wrong motives but
from the innate conviction that it willdohim harm. At this stage
then it is only courting disaster for an employer to seek review.
The man’s incapacity is still clearly the result of the accident.
What he must do is to determine what course of cure is most
suitable, and then ask the workman to try it. If the workman
refuses he is then in a position to go to the Court and ask for its
assistance. To give the Court seisin as a matter of form he may
have to ask for the amount payable to be varied or ended, but to
avoid the risk of having to pay the costs of the day, he should
either in the application or in a concurrent letter state that he is
willing the hearing should be adjourned, and that he will continue
to pay compensation if in the meantime the workman will take
the steps suggested for getting better.

Of course it is the man’s duty, quite apart from his employer’s
urging, to do his utmost to get well, but if the unfortunate result
of the accident is more or less to make the man irresponsible, the
employer must proceed by steps, for by striking too soon he may
easily prejudice the best of cases. These remarks do not apply
to malingering, such cases are simply disposed of. The difficult
ones are those where there has been a serious accident in the
first place, and no suggestion of bad faith in the second. Then
jestina lente should be the employer’s motto, combined with a
122

Workmen's Compensation Appeals.

SCHED.I. (8). never ceasing watchfulness to see that the workman is doing

Able to earn—
As a physical

fact—

Neurasthenia

intervening
cause.

SCHED, I. (8),
Able to earn—

Suitable

everything possible to get well again.

Neurasthenia Due to Intervening Cause.

The case of L. & N. W. RB. v. Taylor affords a simple example
of where the arbitrator found the neurasthenia was due to an
intervening cause, and not to the accident. The man had been
injured and apparently got well, for he returned to work. Then
he ceased on the ground of a recurrence of pain and nervousness
due, as he said, to his accident. But, as in the meantime he had
suffered from influenza, the arbitrator found his state was due to
this, and hence decided against him. In Beech v. Bradford
Corporation, a man was unloading sets, and his evidence was,
“‘T felt something like a tear in my back.” The employers’
doctors were by no means satisfied there had been an accident at
all. Some cynics have said that the Workmen’s Compensation
Act has been the most perfect cure for lumbago ever discovered ;
as it is now unknown except as an aristocratic complaint. Appa-
rently this was the view of the employers’ doctor in this case.
Following the accident the man got into a nervous condition
which appears to have gradually got worse; but the arbitrator,
accepting the employers’ evidence, found as a fact that it was not
due to the accident, and terminated the payment of compensa-
tion.

ABLE TO EARN (c) The essentials of suitable employment.

The question of what is suitable employment becomes material
when a man has sufficiently recovered to do some work but is

employment. unable to find the work he is fitted for. This may be due to two

reasons : the state of the labour market, or the limited class of
work which, owing to his accident, he can do, and of which there
is none offering or obtainable.

As to the first the law is well settled, the employer does not
guarantee the labour market, and as to the second it is equally
agreed that a circumscribed area of opportunity for disposing of
one’s labour may be as much due to the accident as the physical
inability itself to do actual work. Or again, repeating the dictum
Workmen’s Compensation Appeals. 123

of Kennedy, L.J., in Dobby v. Pease: “ This is merely saying in SCHED. I. (8).
other terms that he is incapacitated by the accident. If he would aS
have got work but for the accident, but cannot otherwise, it is employment.
because of the accident.”

But though in law a master does not guarantee the labour
market, hitherto in practice it has very nearly come to his
having to do so. To get variation of an award he has had
usually to prove that not only could a man do work, but
that he could also get it. The fact is, to draw the line
between not guaranteeing the labour market and having to
show that a man’s failure to get work is not due to his acci-
dent is in practice very difficult indeed. However, the trend of
recent cases has been rather otherwise, and these we will now
consider.

The law is well reviewed in the case of Cardiff? Corporation v.
Hall, where Fletcher Moulton, L.J., has made a full and
admirable attempt to show the true principles governing such
cases. Here the facts were simple. A man fell and was injured.
His employers found him light work, and engaged him to drive a
cart from which, in a second accident, he was thrown, his left
arm being injured. This disabled him from doing such light
work, or any work requiring the use of his left arm. The
arbitrator accepted the report of the medical referee, and found
he was “quite able to do any form of light work, more particularly
such as would require principally the use of the right hand.” On
this he reduced the weekly payments from 9s. 2d. to 8s. a week.
For doing so he gave his reasons as follows: “I was of opinion
that the condition of the respondent had greatly improved since
the making of the award which it was sought to review, and that
there had consequently been such a change of circumstances as
entitled me to review the weekly payments ordered by that award,
and taking all the circumstances into consideration I came to the
conclusion that 8s. a week was a proper and sufficient weekly
payment to be made to the respondent in respect of the incapacity
from which he is suffering. With this view the Court of Appeal
(Cozens-Hardy, M.R., dissentient) agreed. In dissenting, the Master
124

Workmen's Compensation Appeals.

SCHED.1.(8). of the Rolls said: “The effect of the accident had not been

Able to earn—

Suitable

removed, and I cannot think that the workman ought to have

employment. his compensation reduced merely on the ground he is physi-

Cardiff
Corporation
v. Hall.

cally able to do a different kind of work, which in truth cannot
be proved. In Clarke v. Gas Light and Coke Co., 21 T. L. R.
184, it was held that if a man unsuccessfully made reasonable
efforts to obtain employment at work which he is physically
capable of performing he must be regarded as not able to earn
anything.”

Further, the learned judge cited with approval a portion of
the judgment he had given in Proctor v. Robinson, as follows :—
“Hither the employers should first obtain some work which
the workman could do and offer it to him and give evidence
of this; or else they should give evidence there is some chance
of the workman obtaining a particular kind of light work
in the district. The burden was upon the employers, and they
have failed to discharge it.”

With this view the other members of the Court did not agree.
The difficulty was how to give effect to the principle, a master
does not guarantee the state of the labour market. It had never
been laid down, and was going too far to require a master to
show, not only that a man could do work, but that also he could
get it.

And what evidence is to satisfy the arbitrator that the man
though able to do work is still unable to get it and unable because of
the accident? Every case must stand on its own facts. In this case
the man proved he had sought work as a bill distributor, from the
post office, etc., and had failed. This, though strong evidence,
was yet held not conclusive evidence to bind the arbitrator to
find he could not get work on account of his accident. And here
Fletcher Moulton, L.J., pointed out the distinction to be observed.
An accident might be such that whilst preventing a man from
doing his original work, yet might only result in relegating him
to an inferior grade of work, but which work had its regular
supply and demand. He instanced the possible case of a highly-
gifted fitter, who, through his accident, might become incapable
Workmen’s Compensation Appeals. 125

of anything more than ordinary work at less wages. The differ- SCHED. I. (8).
ence between the wages he formerly earned and could then only wa
earn would form the basis of a weekly compensation, but the ™Ployment.
risk of getting such everyday work was a risk ordinary to every
worker, and a risk which the employer did not take, as he did not
guarantee the labour market. Thus in the case in question the
man was rightly compensated for being reduced to a different
grade of labour, but as he could do such labour like every oné
else in it, he had to take the risk of the market, and not his
employer. If one of the incidents of such lower grade were that
work in it was more intermittent or less certain than in his
original employment, this would be one of the factors that would
govern the arbitrator in fixing the original amount he should be
paid as weekly compensation. If aman were to be so injured
as to become an odd lot, then his evidence he could not get
work, if unrebutted by his employers, might go a very long way
in justifying an arbitrator regarding him as still wholly
incapacitated by his accident.

This important case has been followed by the almost equally
important case of Roberts v. Ruthven. Here, on marked physical
improvement being proved, the arbitrator, after having full
regard to the man’s circumscribed area of work, reduced his
compensation from 19s. a week to 14s. and decided that suitable
employment was not limited to the man’s original or any
particular form of employment. “In my judgment,” says
Fletcher Moulton, L.J., “it would be a real calamity if we were to
decide that compensation could not be reduced unless there was
evidence that the injured workman enjoyed the possibility of
obtaining and doing some particular kind of work.” Similarly
Buckley, L.J.: “Here the material fact is not necessarily what he
is actually earning when total incapacity has become partial only,
but what he is able to earn; it is sufficient to show, not that he
can actually find a place and is actually getting money, but that
he is physically capable of some kind of wage-earning.” Cozens-
Hardy, M.R., accepting fully the majority judgment in Cardiff
Corporation v. Hall, is as clear, and his judgment is so lucid a
126

SCHED. I. (8).

Able to earn—
Suitable
employment,

Workmen’s Compensation Appeals,

résumé of the whole law, that we here give it in full: “ This is an
application to reduce compensation under clause 16 of Schedule I,
of the Workmen’s Compensation Act, 1906; and it is clear that
no appeal can arise on the point unless it can be shown that the
county court judge has either misdirected himself in law, or has
acted without any evidence at all. Here the judge originally
found that the workman was totally incapacitated, and awarded
him certain compensation; but the respondents now allege that
circumstances have arisen that entitle them to ask that that com-
pensation shall now be reduced. The workman, however, retorts
that it is not enough to show that his total incapacity has now
become partial only, unless evidence is produced as to the exact
quantum of improvement, and unless it be shown exactly
what light work the workman is now capable of performing, what
chance he has of obtaining such work, and what wages he would
earn should he get it. I cannot agree with that proposition. I
think that the judge was entitled to act on his general knowledge,
and that it would be a most serious thing if we were to say that
an employer, in order to get reduction under clause 16 of
Schedule I, must go so far as to pick out the particular light
work that a workman can do, to show that work is obtainable of
that particular kind, and to establish what amount of pay the
workman is likely to get for it. In my opinion, it is enough for
the employer to show that the workman can now do light work
of some kind or another. I think that the judge was entitled to
consider all the surrounding circumstances of the case, and that
when once the employers had discharged the onus that
undoubtedly lay upon them of establishing a prim facie case for
review, the judge had then exactly the same discretion with
regard to reducing the amount of compensation that he had in
the first instance when awarding it.”

So in Scotland the same view of the law prevails, and in the
important case of Carlin v. Alexander Stephen & Sons it was held
that payments can be diminished on proof that total incapacity
has ceased without evidence of the actual amount that the man
could earn.
Workmen’s Compensation Appeals. 127

So another valuable case is the Irish one of Elliott v. Curry SCHED. I. (8).
and Dodd. Here it was part of the employment of a cartwright Shot earn—
to “top” spokes, and whilst he was so engaged a splinter of employment.
wood entered his right eye, causing him to lose the sight thereof.
He was paid the full rate of compensation by his employers for
some months. Ultimately he was offered by them work which
involved the cutting out, hammering, and chiselling of bolts, but
did not include the topping of spokes. The workman objected
to this work on the ground that it was not suitable employment,
and that it would involve risk to his second eye. The Recorder
of Belfast decided that the work offered was suitable, and that
the applicant ought to have accepted it, and he accordingly made
an award of 1d. per week. On appeal his award was confirmed,
Barry, L.C., thus expressing himself as to what risks should
reasonably be faced: “ This man is a cartwright, and if he is
to be employed at all he must be exposed to a certain amount of
risk in the course of his trade. It would be impossible to so
isolate him as to put him wholly outside the region of all possible
injury to his eye from chips. I think it would be too much for
us, in the circumstances, to say that the risk he will have to face
in future will be anything like a serious risk; and the recorder
has come to the conclusion that there will be no risk at all. I
fancy that the apprehension of the man was one the recorder was
justified in giving no real effect to. The finding of the recorder
cannot be disturbed.”

On the same lines is the case of Guest, Keen and Nettle-
fold v. Winsper. Here a workman in a steel rolling mill
had an eye injured. On review, on the evidence and on the
report of the medical referee, the arbitrator found he was physi-
cally able to work, but that in the circumstances of his trade,
as the accident would entail his wearing spectacles, he would
not be able to obtain employment. He accordingly declined
to vary the payments. On appeal it appeared that the
case of the Cardiff Corporation v. Hall had not been brought
to his notice, it not having been then reported, and it was
remitted back to him to rehear on the ground there was
128

Workmen’s Compensation Appeals.

SCHED. I, (8), change of circumstances, and that the man should be able

Able to earn—

Suitable
employment,

to earn something.

Where, however, 2 miner had hurt his knee, and though
perfectly recovered except that at any time his knee might give
way, and this prevented his getting work, as was proved by his
having called on forty firms, it was held there was evidence that
owing to his accident he was still wholly incapacitated. This
seems clear. He had done what every man ought to do, had
done his utmost to get work, and having failed, and failed because
he had been injured, it was only just he should receive compensa-
tion (Thomas v. Fairbairne).

The same point came up in the case of Jones v. New Brynmally
Colliery Co. Here a collier suffered from nystagmus. He received
compensation and got well, but could not get work as masters
would not employ him, owing to his liability to nystagmus. But
there was no evidence such liability of recurrence was due to
his previous attack, and apart from evidence the Court of Appeal
held the arbitrator was not entitled to guess in his favour.

The exact point has come up again in Garnant Collieries
v. Rees. But here the arbitrator found on the evidence that one
attack of nystagmus did leave a miner more susceptible to
another and made his award accordingly. Of course, it was
unassailable, being based on a found fact, and the Court
dismissed the appeal.

We must here refer to Dinnington Main Colliery Co. v. Bruin,
which reproduces all the worst features of Radcliffe’s Case. On
May 1, 1910, Bruin, a shunter and locomotive driver, hurt his
finger. On December 12, 1911, he was still in receipt of 11. a
week compensation on the basis of total incapacity and the
arbitrator continued it! Further, he rather seemed annoyed
that there should have been any attempt to reopen the
question. Having decided on January 24, 1911, the man was
then entitled to this amount, he declined to entertain this
application for review, as “this decision had not been appealed
against, and that no new facts or changes of circumstances
had been proved.” The very fact there had been no change
Workmen’s Compensation Appeals. 129

of circumstances would, we should have thought, have been 8CHED.I. (8).
the very reason he would have done everything in his power gc"
to have helped, not impeded the employers. An injured finger “™Ployment.
still in the same state in December that it was in January.
Unless the resources of medical science are exhausted, surely
one should have very strong evidence indeed that the incapacity
was due to the accident, and not to indifference to getting well.
No doubt cases when heard present themselves very differently
to cases as read, but as read this seems simply shocking. The
appeal was heard March 22 of this year, and apparently full
compensation was still being paid, and on the lines of the award
there seems no reason why it ever should be ended. And the
worst feature of such cases is that there is always a reaction of
which some unfortunate genuine sufferer has to pay the cost by
having his compensation ended because such a one has had his
continued. But the appeal was not very successful, and on the
line taken could not be successful, for a3 Buckley, L.J., said, the
arguments of the appellants were really an appeal to the Court
to yield to the temptation to review the findings of fact, which is
not the province of the Court of Appeal, and which, of course,
they would notdo. By a curious concatenation of circumstances,
both in this ease and Radcliffe’s Case the Court of Appeal have not
been able to really decide on the merits of either. In Radcliffe’s
Case the main fight was over the issue whether the arbitrator's
previous award rendered res judicata the then application to
increase the weekly amount, and the Court of Appeal were clearly
of opinion it did not, and here the question was, was there any
evidence on which the arbitrator could make his award? and there
was. Of course the real question raised in this and such cases
is that indicated by Buckley, L.J., in Roberts v. Ruthven, viz.,
whether the man is or should be “ physically capable of some
kind of wage-earning.” Here we should have distinctly said
there was no evidence that if the man was not physically capable
of some kind of wage-earning that it was due to the accident. It
was due to his not taking steps to get well. Then the same case
says an employer does not guarantee any particular class of work,

W.CG.A 9
130

SCHED. I. (8).

Able to earn—
Suitable
employment,

Workmen’s Compensation Appeals.

so clearly there was very good ground for the award being reviewed
and the amount of compensation being reassessed, not necessarily
at 1d., but certainly not at the full amount. (See, further, Sched.
I. (16), Review.)

Offer of Work by Employer.

When an employer offers work he of course at once secures
proof there is work the man can do. And when a man refused
it because he thought it might prove too heavy, and, notwith-
standing the employer’s assurance, refused to attempt it, the
Court held the arbitrator was amply justified in reducing his
compensation to Id. a week. The man took up the attitude,
the offer was not clear, and there was no evidence on which the
judge could reduce his payments. But it is evident he quite
misconceived the position, for if otherwise physically improved it
is for him to explain and satisfy an arbitrator why he cannot do
something useful for his living (McNamara v. Burtt).

A similar fate befell a workman who never tried to get work.
Again it was urged, and without success, that it was for the
employers to prove that the man is able to get light work but
refuses to go and try it (Anglo-Australian Steam Navigation Co.
v. Richards). So where a man had lost an eye and the employers
offered him work and the use of certain goggles, which he refused
as he wanted other goggles, the arbitrator held him in fault
(Braithwaite v. Cox).

The case of Ward v. Miles was heard the same day as Cardiff
Corporation v. Hall, but was decided before judgment in that
case was given. Here a waitress injured her finger which made
her clumsy. On her employer complaining she gave notice to
leave and then claimed compensation. Her wages had been 10s.
a week and tips equal to another 1s. a week. The arbitrator
awarded her 5s. a week as partially incapacitated. The Court of
Appeal held there was evidence on which he could so award.

Misconduct in Relation to Able to Earn.

Of course, a workman can bring about his dismissal by
hhis misconduct, when his incapacity to earn will no longer be
Workmen’s Compensation Appeals. 131

due to his accident but to such misconduct. But it is pressing SCHED. I. (3).

this doctrine too far to say that because of one act of mis- Aue tocar

conduct a man is to be permanently disentitled, whether it should employment

—Miscon-
be so or not it is a question of fact for the arbitrator to decide, duct.

but in White v. Harris, following Clarke v. Gas Light and Coke
Co., the Court held he had gone too far when he did so end the
compensation. Here it appeared on cross-examination that the
employer had only had to find fault with the workman on one
or two occasions, and the further suggestion he had made trouble
at the works did not seem to have been at all established.

(4) Where a workman has given notice of an accident, he SCHED.I. (4).
shall, if so required by the employer, submit himself for pia
examination by a duly qualified medical practitioner provided and oe ‘
paid by the employer, and, if he refuses to submit himself to such
examination, or in any way obstructs the same, his right to com-
pensation, and to take or prosecute any proceeding under this
Act in relation to compensation, shall be suspended until such
examination has taken place.

See under Paragraph 14 of this Schedule.

(5) The payment in the case of death shall, unless otherwise scHED. I. (5).
ordered as hereinafter provided, be paid into the county court, on death—
and any sum so paid into court shall, subject to rules of court Payment into
and the provisions of this schedule, be invested, applied, or °™*
otherwise dealt with by the court in such manner as the court in
its discretion thinks fit for the benefit of the persons entitled
thereto under this Act, and the receipt of the registrar of the
court shall be a sufficient discharge in respect of the amount

aid in:
: Provided that, if so agreed, the payment in case of death shall,
if the workman leaves no dependants, be made to his legal
personal representative, or, if he has no guch representative, to

the person to whom the expenses of medical attendance and burial
are due.

In the important case of Johnston v. Oceanic Steam Naviga-
tion Co. payment into Court with a denial of liability was fully
discussed. The rules affecting such payment are Rule 564, which
provides for payment in generally; Rule 56, for payment in
with admission of liability ; and Rule 56c, for payment in with
denial of liability, and which is as follows :—

56c: ‘(1) Where a claim for compensation has been made by or on behalf
of dependants, and the employer denies liability, but is willing to pay an

9—2
132

Workmen’s Compensation Appeals.

SCHED. I. (5), amount in settlement of the claim, and such of the dependants as are not

On death—

under disability are willing to accept such amount in settlement, the

EEE into employer may pay such amount into the Court to which, if an agreement

court,

had been come to in the matter, 2a memorandum of such agreement would be
sent to be recorded.

‘*(2) As to prascipe on paying in.

(3) On the payment of money into Court under this rule, the registrar
shall proceed according to paragraph 3 of the last preceding rule, and
the provisions of that rule shall apply to proceedings subsequent to such

payment.”
The material provisions of 568 here referred to are :—

56B (3): (1) Workmen’s Compensation Rules, 1907-1911, rule 56B:
(3) On the payment of money into Court under this rule the registrar
shall make such inquiries and obtain such information as he may think
necessary to satisfy himself whether the amount paid in is adequate in the
circumstances of the case; and it shall be the duty of the employer and of
the persons interested in the money paid in to answer such inquiries and give
such information accordingly.

“<(4) As to when amount is adequate.

(5) Where it appears to the registrar that the amount paid in is
inadequate, he shall make a report to the judge in writing, stating the
information he has obtained and the grounds on which it appears to him
that the amount paid in is inadequate.”

(6) As to when judge considers amount adequate.

(7) As to notice to be sent to employers when the judge considers the
amount inadequate.

In this case a stokehold labourer injured his head, which
apparently got well. Two years later he died from a cerebral
abscess, which may or may not have been due to the wound.
The company denied liability, but offered 101. in settlement,
which, being accepted by those sui juris, they paid into Court, and
applied for a memorandum to be recorded. By Sched. IL., par. (9),
the registrar has power to inquire how far such an agreement
would be for the benefit of the dependants, and above are the rules
for working out such power. He obtained all the information
requisite except reliable medical evidence of the extent and effect
of the man’s accident. The company refused to produce their
doctor’s reports, and the registrar, doing the best he could without
them, refused to sanction the compromise. In this, on appeal, he
was supported by the judge of the county court. The company
appealed on the ground thatthe registrar had refused to sanction
the agreement because they would not produce their doctor’s
Workmen’s Compensation Appeals. 133

reports. The Court held that there was sufficient reason for his scHED. I. (5).

action apart from such reason, even if such had been his reason, ae
and Cozens-Hardy, M.R., and Fletcher Moulton, L.J., declined to into court.

say whether he would have been entitled to be influenced by such
reason or not. On the other hand, Buckley, L.J., had no doubt
on the matter, and said, “My opinion is that these documents
were clearly privileged documents.” As a matter of policy, why
should the registrar or the judge have interfered at all? On
their own evidence, and well advised, the dependants thought 101.
a good settlement. But thanks to the inquisitorial procedure
they were to be enabled to make a better case from evidence
extorted from the other side. For the doctor’s evidence, whether
produced or withheld, at once became highly beneficial to them.

(6) Rules of court may provide for the transfer of money paid scHED.1.(6).
into court under this Act from one court to another, whether or transfer of
not the court from which it is to be transferred is in the same money in
part of the United Kingdom as the court to which it is to be °™*
transferred.

(7) Where a weekly payment is payable under this Act to a scHED.I.(‘).
person under any legal disability, a county court may, on Legal
application being made in accordance with rules of court, order that disability—
the weekly payment be paid during the disability into court, and sala anhe
the provisions of this schedule with respect to sums required by "
this schedule to be paid into court shall apply to sums paid into
court in pursuance of any such order.

(8) Any question as to who is a dependant shall, in default of scHED. I. (8).
agreement, be setiled by arbitration under this Act, or, if not so Rights of—
settled before payment into court under this schedule, shall be ependants
settled by the county court, and the amount payable to each ,
dependant shall be settled by arbitration under this Act, or, ifnot
so settled before payment into court under this schedule, by the
county court. Where there are both total and partial dependants
nothing in this schedule shall be construed as preventing the
compensation being allotted partly to the total and partly to the
partial dependants. : ;

(9) Where, on application being made in accordance with scHED.l. (9).
rules of court, ii appears to a county court that, on account of Variation of
neglect of children on the part of a widow, or on account of oreene
the variation of the circumstances of the various dependants, or Widows and
for any other sufficient cause, an order of the court or an award dependants.
as to the apportionment amongst the several dependants of any
sum paid as compensation, or as tothe manner in which any sum
payable to any such dependant is to be invested, applied, or
otherwise dealt with, ought to be varied, the court may make such
134

Workmen’s Compensation Appeals.

SCHED. 1.9), order for the variation of the former order or the award, as in the

Variation of
awards in
case of
widows and
dependants,

SCHED. I.
(10).

Investment,

SCHED. I.
(11).
Investment,

SCHED. I.
(12).
Money in
court—Pay-
ment out.

SCHED. I.
(18).

As to dupli-

cate accounts

in savings

bank.

SCHED. I.
(14).

Medical

examination.

circumstances of the case the court may think just.

The case of Ivey v. Ivey isa most important one. Here
a committee awarded 292). 1s. 7d. to a widow and her four
unmarried daughters. Two of such daughters married and
subsequently the widow died. On her death the two unmarried
daughters applied that the unspent portion (720. 8s. 2d.) of the
amount appropriated to her might be used for their benefit. The
committee desired to vary their award accordingly, but doubting
their power to do so stated a case for the opinion of the county
court judge. He decided they could not make such variation,
but on appeal the Court were unanimous that they could, and
that to decide otherwise would be to unnecessarily cut down a
most beneficial provision.

(10) Any sum which under this schedule is ordered to be
invested may be invested in whole or in part in the Post Office
Savings Bank by the registrar of the county court in his name
as registrar.

(11) Any sum to be so invested may be invested in the
purchase of an annuity from the National Debt Commissioners
through the Post Office Savings Bank, or be accepted by the
Postmaster-General as a deposit in the name of the registrar as
such, and the provisions of any statute or regulations respecting
the limits of deposits in savings banks, and the declaration to be
made by a depositor, shall not apply to such sums.

(12) No part of any money invested in the name of the
registrar of any county court in the Post Office Savings Bank
under this Act shall be paid out, except upon authority addressed
to the Postmaster-General by the Treasury or, subject to regula-
as of the Treasury, by the judge or registrar of the county
court.

(18) Any person deriving any benefit from any moneys
invested in a post office savings bank under the provisions of
this Act may, nevertheless, open an account in a post office
savings bank or in any other savings bank in his own name
without being liable to any penalties imposed by any statute or
regulations in respect of the opening of accounts in two savings
banks, or of two accounts in the same savings bank.

(14) Any workman receiving weekly payments under this Act
shall, if so required by the employer, from time to time submit
himself for examination by a duly qualified medical practitioner
provided and paid by the employer. If the workman refuses to
Workmen’s Compensation Appeals. 135

submit himself to such examination, or in any way obstructs the SCHED. I.
same, his right to such weekly payments shall be suspended 4)

until such examination has taken place. Medical
examination,

Medical Examination.

The one rule as to a workman submitting himself to medical cue I. (4)
examination is that he shall act reasonably, and, beyond being Medical
illustrations, the decisions in one case are little authority for what °™*™imation.
must be decided in another. It has been held in some circum-
stances that a workman is entitled to have his own doctor present
at his examination, Devitt v. “ Bainbridge” (Owners of), and
in others that he is not, Morgan v. Dixon, and that an arbitrator
cannot make it a condition for such examination that the
employers pay the doctor’s fees (Osborne v. Vickers, Sons &
Maxim. So there have been cases where he has been held right
in insisting on being examined at his own doctor’s surgery
(Harding v. R. M.S. P. Co.), but not at the office of his solicitor
(Turner v. Bell); and in Warby v. Plaistowe, where he made it
a condition that he should be so examined in his solicitor’s office
or in his presence, he was held to have obstructed the examina-
tion. It must be noted in these cases the Court of Appeal
supported the arbitrator’s finding of fact, but it is by no
means certain that in apparently similar cases the arbitrator
would necessarily come to or have to come to the same
conclusion. Suppose a man was injured in his eye. It is quite
conceivable the arbitrator might consider it very unreasonable
for him to put his employers to the expense of sending their own
doctor to see him, and paying him large fees for going to a
distance when there was nothing to prevent him visiting him at
his own surgery. Both sides should do their best to facilitate the
examination and have as much regard for the convenience of one
another as the nature of the case makes possible.

The case of Morgan v. Dizon has been now taken to and
confirmed by the House of Lords. Lord Loreburn, L.C., said
“ that in every case it was a question of fact for the arbitrator
to say whether or not the wish of the workman to have his
medical man present was in the circumstances reasonable.
136

Workmen’s Compensation Appeals.

ecHED. 1.4) Their Lordships, being a Court of law, were not judges of fact.

Medical
examination,

SCHED. I.
(16).
Reference by
mutual
agreement.

In his opinion there was no such absolute right given to the
workman, and, as it was that there were in this case no special
circumstances to be considered, he moved that the appeal be
dismissed with costs.” Lord Shaw was of opinion that a man’s
desire to have his own medical man present was reasonable, and
on this ground differed from the rest of the Court.

(15) A workman shall not be required to submit himself for
examination by a medical practitioner under paragraph (4) or
paragraph (14) of this schedule otherwise than in accordance
with regulations made by the Secretary of State, or at more
frequent intervals than may be prescribed by those regulations.

Where a workman has so submitted himself for examination
by a medical practitioner, or has been examined by a medical
practitioner selected by himself, and the employer or the
workman, as the case may be, has within six days after such
examination furnished the other with a copy of the report of that
practitioner as to the workman’s condition, then, in the event of
no agreement being come to between the employer and the
workman as to the workman’s condition or fitness for employ-
ment, the registrar of a county court, on application being made
to the court by both parties, may, on payment by the applicants
of such fee not exceeding one pound as may be prescribed, refer
the matter to a medical referee.

The medical referee to whom the matter is so referred shall, in
accordance with regulations made by the Secretary of State, give
a certificate as to the condition of the workman and his fitness
for employment, specifying, where necessary, the kind of employ-
ment for which he is fit, and that certificate shall be conclusive
evidence as to the matter so certified.

Where no agreement can be come to between the employer and
the workman as to whether or to what extent the incapacity of
the workman is due to the accident, the provisions of this para-
graph shall, subject to any regulations made by the Secretary of
State, apply as if the question were a question as to the condition
of the workman.

Tf a workman, on being required so to do, refuses to submit
himself for examination by a medical referee to whom the matter
has been so referred as aforesaid, or in any way obstructs the
same, his right to compensation and to take or prosecute any
proceeding under this Act in relation to compensation, or, in the
case of a workman in receipt of a weekly payment, his right to
that weekly payment, shall be suspended until such examination
has taken place.
Workmen’s Compensation Appeals. 137

Rules of court may be made for prescribing the manner in SCHED. I.
‘which documents are to be furnished or served and applications 5).

tmade under this paragraph and the forms to be used for those orca ad by
purposes and, subject to the consent of the Treasury, as to the gereement.

fee to be paid under this paragraph.

Reference by Mutual Agreement.

Tt will be observed that references under this paragraph can
only be made by joint request. It usually speaks well for the
Mman’s genuineness that he will unite in such joint request. But
once such joint request, and a referee appointed and his
report made, so far as it goes it is conclusive. In Sapcote v.
Hancox it was argued otherwise, but it seems the workman
confused a reference under this paragraph with one under
Sched. II. (15), which empowers an arbitrator, etc., to submit to
a referee for report any matter which seems material to any
question arising in the arbitration. This latter report when
made is not binding, and the arbitrator can give as little or
as much effect to it as he deems wise. The case of Quinn v.
Flynn, on which his counsel relied, only deals with reference
under this second schedule paragraph. It is an Irish case, but
is in agreement with the law as settled by the English Courts.
On a similar report under Sched. I. (15) the arbitrator terminated
the compensation. This was the case of Cranfield v. Ansell.
It was urged he had no power to make such award, as all
matters had been settled by agreement between the parties,
and that there was an agreement capable of being recorded.
This was hardly a matter of substance. No doubt the man could
have applied for registration of the agreement, and have left it to
his employer to apply for a stay pending review, but on the other
hand if he chose to apply de novo by a request for arbitration
there was no objection, and the result must have been the same
in either case.

(16) Any weekly payment may be reviewed at the request gcyEp, 1.
either of the employer or of the workman, and on such review (16).
may be ended, diminished, or increased, subject to the maximum Review.
above provided, and the amount of payment shall, in default of
agreement, be settled by arbitration under this Act:
138

SCHED. I.
(16).

Review.

Workmen’s Compensation Appeals.

Provided that where the workman was at the date of the acci-
dent under twenty-one years of age and the review takes place
more than twelve months after the accident, the amount of the
weekly payment may be increased to any amount not exceeding
fifty per cent. of the weekly sum which the workman would pro-
bably have been earning at the date of the review if he had
remained uninjured, but not in any case exceeding one pound.

REVIEW. General Principles.

It is on review that the difficult questions we have discussed
under “ Able to Earn,” Sched. I. (8), mostly arise. Here let us
inquire how far a hearing or review is differentiated from the
original hearing. Before an original hearing some question
must have arisen to give the arbitrator jurisdiction. Before a
review can be entertained some change of circumstance must
have occurred since the preceding hearing. And on review what
must each party respectively prove? Exactly the same as on an
original hearing, neither more nor less, with this one modifica-
tion—material facts proved at a preceding hearing cannot be
challenged and are taken as proved at subsequent ones. Specu-
lations, opinions, and the like do not come within the realms of
facts proved. As regards them the only fact proved would be
that such a one was of such an opinion. Nor are inferences
of fact taken as proved. After all, an inference is but an
inference which later facts may prove to be wrong. But what
are always res judicata are the facts that a man has been injured
by accident ; that it arose out of and in the course of his employ-
ment; that he was incapacitated ; that his wages were so much ;
that the respondents were the employers liable, and that the
compensation was then fixed at such an amount. But the very
scheme of this Act is to provide for compensation varying with
the incapacity due to the accident. But this incapacity may
vary from time to time and the compensation theoretically should
automatically vary with it. Any finding of incapacity at any
time is necessarily alone conclusive for such time, and any
opinion as to the future remains matter of opinion only. So
also, any finding of amount to be paid is equally only conclusive
Workmen’s Compensation Appeals. 139

so long as the incapacity on which it was based has not changed. scHED. I.
This par. 16 is to provide the machinery for adjusting to varying Bete
incapacity compensation that should correspondingly vary. But General
2 a principles,
incapacity may vary, as we have seen under ‘“ Able to Earn,”
Sched. I. (3), with a change in the physical condition of the
workman or with a change in his opportunities of getting work.
Usually the party desiring a review can show a change in one or

other of these. This done, then it is for the arbitrator to again
determine the compensation to be paid exactly as at an original
hearing. The amount then found, so far from being res judicata,

is not even a guide. The incapacity on which it was based is,

ex hypothesi, not the incapacity existing at the time of the review.

A good deal occurs in the cases as to burden of proof. It is
difficult to see how it is material. If no evidence at all is given

it means no change of circumstance has been proved and the
original award stands. But change of circumstance proved,

each side will want to make as good a case for himself as at the

first hearing, though this time the battle will be waged round

what the man is able to earn, the determining factor in the new
compensation to be assessed. Both sides will want to give
evidence, if not the award must be founded on that given by the

other side. On this point, what a man was able to earn at a past

date is not evidence of what a man can earn at the date in
question, seeing it is a change of circumstance which alone
justifies the inquiry. And evidence given the arbitrator will

have to decide upon it. Each side would claim the benefit of all

the other does not prove. The workman would have it that

he is able to earn nothing but what the employer specifi-
cally proves he can earn. The employers, with more show of
reagon, contend that a workman practically recovered must be
assumed to be able to earn what he did before or at least what

any one else in his condition can earn, except so far as he
specifically shows to the contrary. But this is not the law.
There is no presumption in favour of either party, and it may

well be that in one case the workman’s view may seem the more
reasonable, in another the employer’s.
140

SCHED. I,
(16).
Review.

General
principles,

Workmen’s Compensation Appeals.

In Roberts v. Ruthven, the workman actually contended that
in law before the arbitrator could reduce the compensation it was
incumbent on the employers to show that the workman was able
to perform some particular kind of light work, that (a) they had
offered him that kind of light work, or (6) that there was a chance of
his obtaining that particular kind of work in the district and
that they should have given some evidence of what he could
earn in such employment. Of course, there was no duty what-
ever on the employers to prove what this man was able to earn
in any particular way. Could they have proved it in this way it
would no doubt have been satisfactory, but other ways were equally
open to them. One was that mentioned by Buckley, L.J., “ it is
sufficient to show, not that he can actually find a place and is
actually getting money, but that he is physically capable of some
kind of wage-earning.” Having done this the employers cannot
be, so to say, non-suited. They have given material evidence
upon which the arbitrator must decide. No doubt they will do
well to strengthen it as far possible, and if they can prove an
actual offer of work so much the better for them. As regards
the workman, he also will do well to show how and why he
cannot get work. It is advisable for him to satisfy the arbitrator,
for, quoting Fletcher Moulton, L.J., “the chance of obtaining
employment is in many cases so personal a matter that it can
only be arrived at by evidence as to the results of the efforts
to obtain it.”

And as regards the arbitrator, whatever the evidence—true he
may adjourn for more to be given—he must, as well as he can,
come to a conclusion on it. He cannot say, ‘“‘I come to no
conclusion,” and leave matters as they were. Change of circum-
stance has been proved and he must assess the compensation de
novo. His materials may be scanty, but he must do with it the
best he can. He must in some way or another find what the
man can earn. Sched. I. (8) is imperative. It directs that
the weekly payment, subject to a given maximum, shall bear such
relation to the difference between what a workman earned before
the accident and is able to earn after it, as in the circumstances
Workmen’s Compensation Appeals. 141

of the case may appear proper. At the same time his discretion ave: 1
is practically unlimited. He may find that a man with one eye Review.
diseased and another destroyed should have his compensation General
ended, or that a man with one finger hurt is such a pitiable object i
of compassion that he ought for years to receive 11. a week on

the one condition of doing nothing in the way of work or in the

way of getting well.

But one thing only he must do. Come toa conclusion. And
@® very anxious matter this often proves to be, as too many
arbitrators only too well know.

What we have here said is admirably epitomised by Lord

Salvesen in Carlin v. Alexander, where he says: “I must not be
understood as holding that the diminution of the compensation
might not well have proceeded on the first finding alone—it was
to the effect the man was fit for certain specified light work.
The moment it is established as a matter of fact that total
incapacity has ceased and only partial incapacity is present
the employer has made out a prima facie case for having
the award as for total incapacity diminished.” (See, further,
under Sched. I. (8), Able to Harn; and Sched. II. (9), Record
of Agreement.)

How completely a review is regarded as a new hearing is well ee a new
illustrated by Rex v. Templer; Howarth, ex parte. Here the
first award had been made by a committee under Sched. II. (1).

The workman, pretty well knowing their views when he wanted
review, applied not to them, but to thefcounty court judge. The
employers wished it again settled by the committee and objected
to the jurisdiction of the judge as arbitrator. The workman had
a right to object to the committee deciding in the first instance,
and not having exercised it could not change his mind for that
occasion. If, then, the matter was a continuing one and reviewa
proceeding in such matter, he still could not object to the committee
acting. But a Divisional Court, not disapproved by the Court of
Appeal, were of opinion such matter was not a continuing one,
and the review was so sufficiently distinct a hearing as to entitle
the man to object to the committee exactly as if a new matter.
142

Workmen’s Compensation Appeals.

es I Jt could only be demanded at all if new circumstances had arisen.

Review.

(See, further, under Sched. II. (1), and (2).)

In Corbet v. Haines the rule that the original wages found are
res judicata worked rather harshly. A man was injured and
his earnings were 80s. plus commission on sales equal to another
15s. or 20s. a week. In fixing the compensation the arbitrator
disregarded this latter item and assessed it on the basis of the
wage only. At the time of review the man was paid 40s. a week,
and no commission. As the man was clearly receiving less at
the time of review than he did before the accident, the arbitrator
wished to give him 5s. a week as compensation. To do this he
went into the question how much he had originally earned as
wage and commission. But the respondents on appeal successfully
objected to his assessing the weekly wages in one way at the hearing
and in another at thereview. The fact is the man should have
appealed against the commission not being taken into account
as it ought to have been in the first instance. Having submitted
to the one loss he had to submit to a further one as well, for the
rule the original finding is res judieata is quite settled, and to
fight it is pretty hopeless. If the arbitrator had wished to give
the man just a possible chance of holding his award, he should
have treated his original finding as a thing sacred and then
have advanced the proposition that to do justice it was essential
for him to adopt the same method of computation at the review
as at the original hearing. But as at the original hearing the
man’s remuneration consisted of wages and commission, which
commission was disregarded, therefore, on review he must as far
as he could, determine how much of the 40s. should be regarded
as the equivalent of the former item for commission go that it
also might be disregarded. It is true that this would be against the
letter of this paragraph but so obviously in the spirit of it that it
might with luck have got through. There are certain “shibboleths”
in the Act as fatal as Jephthah’s and this is one. Evasion may at
times, with justice behind it, succeed, but a frontal attack never.

The Recording of Spent Agreements.
Under the old Act the practice was to record any agreement,
Workmen's Compensation Appeals. 148

whether stale or otherwise, though before issuing execution the SscHED. I.
registrar had to be satisfied there was default: Rules 67 and 68. cee
This is modified by Sched. II. (9), proviso (b), but yet the con- Pe
venient practice still seems fairly general to allow agreements
to be registered, strictly according to their tenour, and then leave
the parties to apply for modification by review. This course was
adopted in London and North Western Railway v. Taylor, also
referred to under Able to Harn, Sched. I. (8), sub-heading
Neurasthenia due to intervening cause, and Sched. II. (9), sub-

heading Record of Agreement after Workman’s Recovery.

Overpaid Compensation.

A most important point was decided in Hosegood v. Wilson.
There is usually delay between the application for review
and the decision. In the meantime the employer has to
continue paying the full compensation. Then on review the
arbitrator may end the higher amount and substitute a lower
one as from the earlier date. But though the employer has thus
overpaid compensation it has been decided in this case that by
virtue of Sched. I. (19), which says compensation may not be
charged, he cannot deduct such ammount from subsequent pay-
ments on account of compensation. He has a right to recover it
by action for whatever it is worth, but that is all. Probably the
right course for the employer to adopt is on the review, when
the arbitrator finds there is sufficient change of circumstances to
warrant his fixing anew the weekly payment, to ask him, under
Sched. I., par. (8), to have regard to the overpayments made
between the application and the hearing as a payment, allowance,
or benefit under that provision. Of course, what “‘regard” an
arbitrator may have will be a matter entirely in his own dis-
cretion. Also what seems a reasonable course is that on applica-
tion for review an employer of right should obtain a stay of
execution for the excess compensation which he contends he
is no longer liable to pay. He is certain not to be unreason-
able for he will no more wish to risk the costs of review than
he would those of the original hearing. If this is putting
144 Workmen’s Compensation Appeals.

SCHED.1. too much power in his hands certainly such stay should be
(16). : ee “, & ,
Review, obtainable on ex parte application as it is not the employer’s

Overpaid fault that the hearing is not forthwith proceeded with. (See,

one further, under Any Question, sec. 1 (8).)

Suspensory Orders.

In London & North Western Railway v. Taylor, the House
of Lords decided that weekly payments could be ended once and
for all. In other cases the simple course to be adopted, in the
opinion of Lord Shaw, was “to make the payment end until
further order.”

Review in the Case of Infants.

This proviso does not mean that whilst infancy continues the
amount may be reviewed and increased to the full amount that
might possibly have been earned by the infant. Thus in
Ambridge v. Good a minor earning 6s. when injured received the
full amount as eompensation. Later on, still a minor, she proved
that if in work she would be receiving 10s. a week and asked
that her compensation might be increased to that amount under
Sched. I. (16). But the power to increase is obviously limited to
giving one half of the wages that such workman might be earning
at a subsequent date.

 

SCHED. I. (17) Where any weekly payment has been continued for not
ay. less than six months, the liability therefor may, on application
Redemption by or on behalf of the employer, be redeemed by the payment
pabhery of a lump sum of such an amount as, where the incapacity is
, permanent, would, if invested in the purchase of an immediate
life annuity from the National Debt Commissioners through the
Post Office Savings Bank, purchase an annuity for the workman
equal to seventy-five per cent. of the annual value of the weekly
payment, and as in any other case may be settled by arbitration
under this Act, and such lump sum may be ordered by the com-
mittee or arbitrator or judge of the county court to be invested
or otherwise applied for the benefit of the person entitled thereto :
Provided that nothing in this paragraph shall be construed as
preventing agreements being made for the redemption of a weekly

payment by a lump sum.
Workmen's Compensation Appeals. 145

REDEMPTION OF WEEKLY PAYMENT.

Under this paragraph the right is given to the employer to scHEp. 1.
redeem whether the workman objects or not, nor has the ie ‘i
arbitrator any discretion in the matter, but if asked must make of weekly

the award, Kendall v. Pennington. The terms and conditions of vee
such redemption came up for consideration in the appeal and
cross-appeal in the case of the Calico Printers’ Association
v. Higham. Here a workman had lost two fingers at his
employment, and for a time had been paid full compensation,
and then for the six months prior to the application had
received 9s. 3d. a week for partial disablement. His employer
then applied to compound. The arbitrator held he had no dis-
cretion as to amount and was bound to fix it actuarially, which
he did at 8121. Had it been a matter within his discretion he
would have thought 84/1. enough. Further, whilst fixing the
amount the employers could compound at, he made no order
compelling them to compound. Against this part of the award
there was the cross-appeal. Unfortunately the case had to be
sent back to the arbitrator as he had omitted to find whether the
incapacity was or was not permanent. The materiality of such
finding will appear from the following consideration. Here we may
repeat from our “ Employers’ Liability,” p. 358, what we thought
to be the effect of this paragraph, as it seems on the whole to
fairly represent the position: ‘Its probable effect is (a) where
incapacity is permanent the employer can redeem his liability
with a lump sum fixed at seventy-five per cent. of the value of
an annuity as stated, and neither more nor less; and (6) in any
other case, a8 where incapacity is not permanent, as may be settled
by arbitration.” It will thus be observed the whole method of
assessment turns on the one all important fact, is the incapacity
permanent or is it not?

This is the first finding of fact that an arbitrator in every case
must definitely make.

Here it should be noted that permanence of injury and per-
manence of incapacity are by no means co-extensive. The

incapacity referred to is incapacity for work, not physical,

W.C.Ar 10
146

SCHED. I.
ay.
Redemption
of weekly
payment.

Workmen’s Compensation Appeals.

mental, or other incapacity. A lawyer may lose his finger and
not be incapacitated for work at all. This distinction is most
important. Whilst there are many cases where the injury is
permanent, there are very few indeed where incapacity is likely
to be so as well. Ifa manis totally paralyzed, seriously maimed,
blinded of both eyes, one might well find he is permanently
incapacitated, but failing such serious injury an arbitrator
might equally well find that the incapacity is not permanent.
As this leaves the whole matter in his discretion, and as there is
nothing to prevent his giving the full amount as determined
actuarially, he should himself assess it, unless the evidence is
very conclusive there is likely to be no change in the man’s
earning power. This point has now come up in the case of
Staveley Iron and Coal Co. v. Elson, and been decided on the lines
thus indicated.

The next point to be observed is that the weekly payment to be
compounded is the weekly payment that has been actually con-
tinued during the preceding six months and at the same amount.
At the hearing there were several queries as to how payments
to infants and nominal awards were to be treated. Was a man
in receipt of a penny a week to be liable to have it compounded
atits simple actuarial value. Ifsuch a contention is ever seriously
pressed it will be equally met by replies equally ingenious
and which can be dealt with as they arise.

The next important question is, what effect is to be given to
the word “ may” ?

It is to be observed this paragraph has been framed in the
interests of the employer, and there seems no reason why an
employer should not withdraw his application at any time prior
to the actual award on the usual terms of payment of costs. In
fact, it is rather hard on an employer—note, in no way in fault—
that he should have to resort to such expensive machinery to
ascertain what his liability can be compounded for. It will be
noted the word “may” is areference to the employer, and is not a
discretion given to the arbitrator as to allowing or refusing an
application to compound. To give effect to the word “may” the
Workmen's Compensation Appeals. 147

award might well be made in the form that the compensation SCHED. I.

7).
should be redeemed on payment of L., which would leave aes
matters in statu quo until such payment was made. habe

The principles thus arrived at obviously show that such a pro-
cedure as that adopted by the arbitrator in the case of Victor
Mills, Ltd. v. Shackleton cannot possibly be correct. Here
a workman had for some time been in receipt of 16s. 1d. a week as
compensation for total and permanent incapacity. The total thus
received amounted to 1791. 6s. 7d. The employer then applied to
redeem. The arbitrator found he would have given 3001.
originally, and from this he deducted the above amount and
awarded the balance, viz., 1207. 18s. 5d. Ifthe finding of total
and permanent incapacity be correctly reported, the amount
should have been 75 per cent. of the value of a Post Office
annuity of 16s. 1d. a week, nor would the amount so given be in
the discretion of the arbitrator.

 

(18) If a workman receiving a weekly payment ceases to reside SCHED. I.
in the United Kingdom, he shall thereupon cease to be entitled (8
to receive any weekly payment, unless the medical referee certifies ee
that the incapacity resulting from the injury is likely to be of a united
permanent nature. If the medical referee so certifies, the work- Kingdom.
man shall be entitled to receive quarterly the amount of the weekly
payments accruing due during the preceding quarter so long as he
proves, in such manner and at such intervals as may be pre-
scribed by rules of court, his identity and the continuance of
the incapacity in respect of which the weekly payment is payable.

(19) A weekly payment, or a sum paid by way of redemption scHeEp. 1.
thereof, shall not be capable of being assigned, charged, or (9). |
attached, and shall not pass to any other person by operation of °°mpensation

S 5 not to be
law, nor shall any claim be set off against the same. charged.

Overpayment of Compensation.

In the case of Hosegood v. Wilson a workman had been over-
paid compensation. Although his employer could recover
this amount by action, or, at least, get judgment for it-——not
quite the same thing—yet he could not treat such overpayments
as payments on account of future weekly payments, and to stop

10—2
148 Workmen’s Compensation Appeals,

SCHED.I. payments of compensation until the balance was wiped off was
(19). decided to be wrong. See also under Sched. I. (16).

 

SCHED. I. (20) Where under this schedule a right to compensation is
: suspended no compensation shall be payable in respect of the
Suspension of period of suspension.

i ea (21) Where a scheme certified under this Act provides for
(21). +‘ payment of compensation by a friendly society, the provisions

Certified of the proviso to the first subsection of section eight, section

schemes. sixteen, and section forty-one of the Friendly Societies Act, 1896,

59 & 60 Vict. shall not apply to such society in respect of such scheme.

e. 25. (22) In the application of this Act to Ireland the provisions of

SCHED.I. the County Officers and Courts (Ireland) Act, 1877, with respect
al to money deposited in the Post Office Savings Bank under that
Application At ghall apply to money invested in the Post Office Savings

to Ireland. Y
di add wink Bank under this Act.

ec. 56.
SECOND SCHEDULE.

ARBITRATION, ETC.

149

(1) For the purpose of settling any matter which under this scHep. 11.
Act is to be settled by arbitration, if any committee, representa- (1), (2), (@).

tive of an employer and his workmen, exists with power to settle },

the matter shall, unless either party objects by notice in writing
sent to the other party before the committee meet to consider the
matter, be settled by the arbitration of such committee, or be
referred by them in their discretion to arbitration as hereinafter
provided.

(2) If either party so objects, or there is no such committee, or
the committee so refers the matter or fails to settle the matter
within six months from the date of the claim, the matter shall
be settled by a single arbitrator agreed on by the parties, or in
the absence of agreement by the judge of the county court,
according to the procedure prescribed by rules of court.

(8) In England the matter, instead of being settled by the judge
of the county court, may, if the Lord Chancellor so authorises,
be settled according to the like procedure, by a single arbitrator
appointed by that judge, and the arbitrator so appointed shall,
for the purposes of this Act, have all the powers of that judge.

AWARD.

A feature common to all arbitrations including those under the
Act is that an award once delivered, that is signed, sealed and filed
in accordance with rule 28, cannot be altered except as to mere
clerical errors or slips. The provisions of the rule are

28 (1) The award of the judge on any arbitration shall be prepared and
settled by the registrar, and shall be signed by the judge, andshall be sealed
and filed, and sealed copies thereof shall be served on all persons
affected thereby in accordance with rule 7 of Order xxu1., and such award
shall be enforceable in the same manner as a judgment or order of the

Court.
(2) The judge shall have power at any time to correct any clerical mistake
or error in such award arising from any accidental slip or omission.

Prior to such signing, etc., an arbitrator may alter any award
he has verbally made in Court but not afterwards, Mowlem v.
Dunne. 8o sub-rule (2) does not authorize any alteration in sub-
stance, and a memorandum of agreement like an award cannot be
varied under it nor under Sched. IL. par. 9 (c), which states that
the judge of the county court may at any time rectify the
register, Schofield v. Clough.

eee
matters under this Act in the case of the employer and workmen, aa
150

SCHED. II.
(), @), ©).
Arbitration
by committee,
etc.

Workmen’s Compensation Appeals.

Arbitration other than by Judge of County Court.

Under paragraph (1), which is substantially the same as that
in the Act of 1897, provision is made for arbitration other than by
the judge of the countycourt, and the judge has no supervision over
such arbitration and its proceedings. Hence when an award had
been made by a committee under the old Act, and the amount
reduced by agreement, and later on the workman applied to the
county court judge for review, the judge, on objection taken, held he
had no jurisdiction to entertain the matter, and refused to hear
the application. The workman appealed to the Court of Appeal.
Again, on objection taken, the Court of Appeal held: “ The county
court judge has not heard or determined this case. It is quite
plain that he declined to entertain jurisdiction, and the appeal
therefore lies not here, but to the Divisional Court,” per
Cozens-Hardy, M.R., Howarth v. Samuelson; and see also
County Courts Act, 1888, s. 181. On the hearing in the
Divisional Court, sub nomine, Rex v. Templer ; Howarth, Ex parte,
it was held a review constituted an independent proceeding, and
that objection could be taken to a committee so as to give the
county court judge jurisdiction. This decision is in no way
inconsistent with that in Mullholland v. Whitehaven Colliery Co.,
79 L. T. K. B. 987, which laid down that when a committee was
in @ position to act and did act the county court judge had
no power to interfere with its decisions in any way. This
decision was confirmed by the Court of Appeal, but chiefly for
the reason given by Vaughan-Williams, L.J.: “‘ The language of
the statute being equally consistent with both of the views
which have been suggested there is no reason why we should
interfere with the view which has been adopted by the Divisional
Court.” Asa matter of fact the learned judge was rather inclined
to a different view. Farwell, L. J., expressed no view atall. If
the Act may be indifferently construed either way it seems a
pity the Court of Appeal did not give effect to their reading, as it
is obviously desirable that as far as possible the arbitrator who has
heard the original proceeding should hear subsequent ones as
well.
Workmen's Compensation Appeals. 151

; (4) The Arbitration Act, 1889, shall not apply to any arbitra- SCHED. II.
tion under this Act; but a committee or an arbitrator may, if ©-
they or he think fit, submit any question of law for the decision 5? & 53 Vict.
of the judge of the county court, and the decision of the judge on : to 1
any question of law, either on such submission, or in any case oe
where he himself settles the matter under this Act, or where he ere aits 7
gives any decision or makes any order under this Act, shall be final, first instance.
unless within the time and in accordance with the conditions pre-
scribed by rules of the Supreme Court either party appeals to the
Court of Appeal ; and the judge of the county court, or the arbi- As to pro-
trator appointed by him, shall, for the purpose of proceedings under cedure before
this Act, have the same powers of procuring the attendance of ee
witnesses and the:production of documents as if the proceedings
were an action in the county court.

Preliminary Objection.

The question of jurisdiction was involved in Panagotis v.
** Pontiac” (Owners of). See further under sect. 11, where a
seaman detained a ship. On its facts the decision seems warranted,
but it is somewhat difficult to follow the reasons given. The
dissenting judgment of Farwell, L.J., so clearly states the law that
evidently the variance was on how the facts should be regarded.
This being so, we may take it that this case in no way disturbs
the practice as now settled. Without division of opinion, the
Court also declined to hear the appeal in Homer v. Gough under
sect. 5, as there clearly the arbitrator had no jurisdiction at all
to make any order. As to this also see further under sect. 5.
The same question was also involved in Howarth v. Samuelson,
supra, under par. (8).

Jurisdiction Cannot be Enlarged by Estoppel.

This was so decided in the case of Standing v. Eastwood. In
this case employers engaged a captain who engaged a mate who
was injured. The employers paid him compensation, and on a
higher amount being demanded, disputed the fact of his being
their servant at all. The arbitrator held they were estopped from
taking the point and found for the man. On appeal his award

“was set aside. To the argument there had been a clear admission
of liability, Buckley, L.J., replied : “Even so, you would have
to sue under the agreement and not under the Act.”
152

SCHED. II.

(4).
Appeals—
Notice.

Workmen's Compensation Appeals.

Form of Notice of Appeal.

By rule 71 of the Workmen’s Compensation Rules, 1907,
appeals under Sched. II., par. (4), have to be in accordance with
the rules of the Supreme Court relating thereto, and by Order LIX.,
rule 10, it is directed :—

“ The notice of motion shall state the grounds of the appeal, and whether
all or part only of the judgment order or finding is complained of.”

Thus in Barton v. Scott, the workman twice applied to have
his award reviewed, and each time his application was dis-
missed. On appeal the workman really relied on the evidence
given at the first review, although in form the notice of appeal
was from the second review. The first application had been
dismissed on the grounds the applicant had not shown he
had made reasonable efforts to obtain work, and the second that
since the first hearing there had been no change of circumstances.

Cozens-Hardy, M.R., intimated he had read the notice of appeal
and could not gather from it what was really the point they were
asked to decide, and the Court held the notice was insufficient, and
dismissed the appeal.

Time for Appeal.

In Fox v. Battersea Borough Council, the judge of the
county court refused, in November, 1910, to record an agree-
ment as not genuine, and in January, 1911, made an award.
From both decisions the employers appealed. It was held they
formed part of one and the same proceeding, and there was no
necessity to have appealed within twenty-one days from the first
order in November, 1910. Further, Cozens-Hardy, M.R., observed
that had it been necessary for leave to have been obtained for
giving further time to appeal, he should certainly have granted it.
See also under sect. 1(8). In the Irish case of Henneberry v.
Doyle Bros., this leave was given. Owing to being misled by the
officer of the Court the respondents thought the award had been
signed on November 2 and not on October 25 as was the
fact. The Court as a matter of grace extended the time as they
Workmen’s Compensation Appeals. 153

were in no way in fault, but gave the applicant five guineas Pou II.
costs for attending the application. However, in Perry v. Lacey Appeate—
it was otherwise. Here a workman appealed, and on May 29, 1911, Time for.
the Court of Appeal made an order for him to give security for

costs within fourteen days. On June 2 he obtained leave to pro-

ceed in formé pauperis. There was delay in the Crown office and

the order was not drawn up and served until June 15, 1911.
Meanwhile the fourteen days had expired and at the employer’s

instance his appeal was struck out. On application for reinstate-

ment the Court of Appeal refused to interfere.

THE ATTENDANCE OF WITNESSES AND THE PRODUC-
TION OF DOCUMENTS.

Why the second part of this paragraph could not have been gcuep. 11.
made into a distinct paragraph by itself, and made to precede ©.
Procedure

the first part, which deals with appeals, is difficult to understand. hefore
However, it is as convenient to give here as anywhere else some *Pitrator.
of the miscellaneous questions dealing with evidence and practice

which have recently been dealt with by the Court.

Evidence—Generally.

It is not sufficient that there should have been some evidence
on which an arbitrator could have found a fact, unless it is also
shown that he did in fact apply his mind to such evidence, and
did so find, Lee v. “Bessie” (Owners of). So it is desirable he
should state his reasons for any decision (Jones v. Tirdonkin
Colliery Co.).

Evidence. Wrongful Admission of.

The wrongful admission of evidence is a ground for appeal. In
Richards v. Sanders, the employers put in the certificates of a
doctor instead of calling him. Objection was taken but overruled
by the arbitrator, and the evidence admitted. The Court sent
the case back for rehearing, giving the appellant the costs of the
appeal in any event.
154

SCHED. II.
(4).

Procedure.

Workmen’s Compensation Appeals.

Evidence. Statement to Doctor, etc.

In several cases no evidence of how an accident has occurred
has been procurable other than that of the wife, doctor, or some
one to whom the deceased has made statements, and which are not
admissible. In the case of Amys v. Barton, where a man died
from a wasp sting, it was sought to give the statement made to
the doctor to explain how it happened. This was not admitted.
A man may tell his doctor what his symptoms are, from what he
is suffering, and how if was caused, by a blow, a chill, a sting, a
scratch, a strain, a bite, etc., and all this the doctor may tell the
Court as part of the res geste, but it is not part of the res geste
when he would give the man’s account of how he came to
have been bit or stung, etc. And the distinction is clear. The
doctor can check for himself and be cross-examined as to whether
he really thought the injury was due to a blow, etc., but there is
no means of checking the statement, if permitted, how the blow,
etc., actually happened. It might be the man was interested in
deliberately misleading his doctor. The accident might have
happened under circumstances of which he was ashamed, and he
might easily have wished to attribute it to more reputable causes,
or, knowing he was dying, have thought to provide for his family.
If the Irish case of Wright v. Kerregan, 45 Ir. L. T. 82, goes further
than this, which is very doubtful, for the headnote is not borne
out by the judgments; it is not to be followed. The leading case
is Gilbey v. G. W. R., 102 L. T. 202, which correctly states
the law. The same point has again come up in another Irish
case, Donaghy v. Ulster Spinning Co., when the Court decided
to follow definitely Gilley v. G. W. R., and so any scintilla of
doubt on the subject is now removed.

In Tucker v. Oldbury Urban Council the dependants tried to
get out of the rule in this Gilbey’s case by showing that the
statement made by the deceased had been one against his
interest. There were two objections to this contention :

(1) The dependant’s rights were independent of those of the
Workmen’s Compensation Appeals. 155

workman, and therefore he could not have made an admission scHED. Il.
binding them. Hepeanie:

(2) The rule requires the statement to have been made by the Evidence—
maker, he knowing at the time that they were against his Ate oo

pecuniary interest, which in this case was by no means obvious.

Evidence. Presumption.

The presumption is against crime, Farwell, L.J., in Furnival
v. Johnson, and against suicide, Southall v. Cheshire County News.

Evidence. Onus of Proof.

The question of onus of proof was discussed and became
material in the Scotch case of M‘Ghee v. Summerlee Iron Co.
We have had to somewhat lengthily consider the same
point under par. 3 of Schedule I. under the heading Able
to Earn, sub-heading Suitable Employment. In this case a
miner lost his eye by an accident. On February 14, 1910, the
medical referee reported him fit for work. The employers then .
applied to end or diminish the compensation. At the hearing
the workman proved that since the report he had lost the other
eye and was then totally incapacitated, and the Sheriff found this
was so, but held it was not proved the blinding of the remaining
eye was due tothe accident. He held the onus was onthe man to
prove this. The employers had proved that in February, 1910,
the incapacity had ceased. This they had to do. After a special
hearing as to the cause of the subsequent blindness, the Sheriff
found “that it is not proved that the said condition is due to
sympathetic affection.” Further, he held that the onus of proof
was on the workman to show that the new incapacity which thus
supervened and which he sought to establish was due to the
accident, and that he had not discharged it. Equally, he said, he
would have held that if the onus had been the other way the
employers had failed to discharge it. Accordingly he found for
the employers, and his finding was upheld.

In England we do not quite agree with the Scotch law as to
onus as thus stated. With us if there is no evidence the party
156
SCHED. II.
(4).
Procedure.

Evidence—
Onus of proof.

Workmen’s Compensation Appeals.

loses who has to prove his case, but directly evidence is given
the question of onus is at an end, and the arbitrator or judge has
to find on the evidence as best he can. It is not open to him to
say “‘ the evidence is so equally balanced I cannot decide”: It is
his duty to decide, though there is no reason he should not
adjourn the case for further evidence to be given. Bowen, L.J.,
well puts our view of the law in Abrath v. N. E. R., 1 Q. B. D. at
p- 456: “The question of onus of proof is only a rule for
deciding on whom the obligation of going further, if he wishes to
win, rests. It is nota rule to enable the jury to decide on the
value of conflicting evidence. So soon as a conflict of evidence
arises, it ceases to be a question of onus of proof.”

Evidence. Deceased Seaman in Foreign Port.

In Mitchell v. “ Saxon” (Owners of) a declaration by a witness
in a foreign port made before the British Vice-Consul was rejected
by the arbitrator because not under oath. How far this was
correct was left undecided as the Court held the evidence in
question did not affect the merits.

Practice. Affidavits, etc., in Court of Appeal.

In Turner v. Bell, an arbitrator, holding the matter was
res judicata, declined to take any notes. On appeal, the
Court accepted an affidavit of the solicitor as to what had
taken place.

In the case of Lee v. “ Bessie” (Owners of), the Court of Appeal
allowed a newspaper report to be read, not as admitting such
as evidence, but as a statement of counsel present at the
trial who adopted it as substantially correct. Though not
referred to in the reports this was done when the writer was
present.

In Polled v. Great Northern Railway, the Court of Appeal sent
back a case to be reheard. On the second hearing the arbitrator
refused to take any further note of the evidence. On the
second appeal the applicant asked the Court to direct a new
hearing that a note might be taken. The railway company
Workmen’s Compensation Appeals. 157

objected, and as they had a shorthand note of the proceedings ew II.
the Court adjourned the hearing on their agreeing to furnish the Practice—
other side with a copy and to send a copy to the arbitrator for him to Boye)

sign as his note. The Court would not give the applicant the costs

of the day as it was not the railway’s fault no note was taken.

SHALL BE FINAL. New Trial.

Wheeler v. Dawson, not yet reported, was an attempt, like that in
Westcott and Laurence v. Price to get a new trial, and the Court of
Appeal were strongly urged to allow an affidavit of what took place
after the hearing to be read which they resolutely refused to do.
The arbitrator assisted by an assessor had stopped compensation
on definite medical evidence. Apparently the affidavit was to
show other facts had transpired after hearing showing such
evidence was wrong. The matter could not be reopened. On
the original hearing all was in order and correct.

In Casey v. Humphries, where the arbitrator had gone wrong
during the hearing it was otherwise. Here a question arose as
to an arbitrator's power to amend under Rule 17.

By this rule, sub-rule (1), a respondent wishing to disclaim
or challenge the applicant’s statement must file an answer; this

answer

. . stating in what respect the applicant’s particulars are inaccurate or
incomplete, or stating concisely any fact or document which he desires to
bring to the notice of the judge, or on which he intends to rely, or the
grounds on and extent to which he denies liability.

(3) Subject to any answer so filed, and to the provisions of the next
following paragraph, the applicant’s particulars, and in the case of a claim
for compensation, the liability to pay compensation under the Act, shall be
taken to be admitted.

(4) Provided that in case of non-compliance with this rule,.and of the
applicant’s not consenting atthe arbitration to permit a respondent to avail
himself of any matter of which he should pursuant to this rule have given
notice by filing an answer, the judge may, on such terms as he should think
fit, either proceed with the arbitration and allow the respondent to avail
himself of such matter or adjourn the arbitration to enable the respondent to
file such answer.

As early as Silvester v. Cude, under the old Act, the courts
have held that an arbitrator has the fullest discretion as to
amending or not amending, but at the same time if he does
admit new matter he should be careful that the other side havea
158

8CHED, II.
@.

Workmen's Compensation Appeals.

reasonable opportunity of dealing with it and are not entirely

Shall be final '@ken by surprise.

—New trial.

Thus, in this case without any notice whatever the employers
sprang the defence, serious and wilful misconduct. The work-
man’s counsel objected to the amendment, and being overruled
asked for an adjournment so as to give evidence in reply. This,
again, the arbitrator declined to accede to until he had heard the
case, and having heard it he decided against the applicant both on
this point and on the merits. On appeal it was urged that the
wilful misconduct was the not wearing proper gauntlets and that
they could have shown none were provided. However the Court
declined in any way to go into the merits of the evidence but were
satisfied there was a conflict and that justice could not be done
without hearing both sides. They, therefore, directed a new
hearing, but left all costs, including those of the appeal, to be
settled by the arbitrator; so also they gave him the freest
hand in dealing with them in case he found the evidence “ all
bunkum,” as the Master of the Rolls put it.

In S. E. é C. R. v. Ewell, an official called by the company
was also subpcenaed by the other side. The company’s advisers,
seeing him with them, thought he was going to “sell” them,
so—not knowing of the subpcena—told him he would not
be required and could go back to his work. This he did, with the
result when the other side called him he was not available. These
facts clearly warranted a new trial, which was agreed upon. So also
a new trial was ordered in Jessop v. Maclay, not yet reported,
where the arbitrator had refused an adjournment of the hearing.
Here, owing to the sailing of their ship within three days of the
application for arbitration, the owners were unable to take the
evidence necessary for them to have to substantiate their defence.

Consent Orders.

These are not the subject of appeal, Howell v. Blackwell,
Eixecutors of.

Practice. Settlement where Infants.
In Coulson v. The Worshipful Company of Drapers, not yet
reported, on appeal the parties agreed to settle, and they fixed the
Workmen’s Compensation Appeals. 159

compensation at 120/., instead of 190/. They then asked for SCHED. II.
the sanction of the Court. On it appearing that there were ee
infants and that they were not separately represented, the Court fants.
felt they could not then give it, but referred it to the official
solicitor for him to decide and report to them if it was for their
benefit. So it was ordered he was to have the assistance of counsel

to help him in arriving at a conclusion, if he required it. If this

is the usual machinery to be invoked in the cases where there

are infants it hardly seems there will be many settlements

if the clients are consulted. So it seems foreign to the

spirit of the Act. Under the award, the 1901. was to have been
apportioned by the registrar or the arbitrator in the usual way.

Now, on appeal, it was to the joint interest of all the applicants,

the infants included, if they could not get the full amount to
getas large a sum in settlement as possible. So far there was no
conflict of interest, and so far one counsel could and did well
represent them all. When he advised taking the smaller

sum he was as much acting in the interest of the infants as

of the others entitled, and was every whit as able to judge for

them as the official solicitor. The conflict of interest would

only arise when the amount had to be divided, and it would

be the same whether it was 1900. or 120/., or any other sum.

Then why should not the settlement have been allowed and

the division of the amount have been referred to the arbitrator

to be made in the usual way.

Public Authorities Act, 1893.

In Fry v. Mayor, etc. of Cheltenham, it was held that the scHep. 11.
Public Authorities Act, 1898, does not apply to an arbitration eae
under the Act which is made a statutory incident to a contract ee

of service.

 

(5) A judge of county courts may, if he thinks fit, summon a nD. me

medical referee to sit with him as an assessor. Referee as
(6) Rules of court may make provision for the appearance in assessor.

any arbitration under this Act of any party by some other scHEp. II.

person. (6).

Appearance
of parties.
160

SCHED. II.
1).

Costs.

SCHED. II.
(8).
Death, etc. of
arbitrator.
SCHED. II.
(9).
Record of
agreement.

Workmen’s Compensation Appeals.

(7) The costs of and incidental to the arbitration and pro-
ceedings connected therewith shall be in the discretion of the
committee, arbitrator, or judge of the county court, subject as
respects such judge and an arbitrator appointed by him to rules
of court. The costs, whether before a committee or an arbitrator
or in the county court, shall not exceed the limit prescribed by rules
of court, and shall be taxed in manner prescribed by those rules and
such taxation may be reviewed by the judge of the county court.

An arbitrator may deal with the costs of separate issues, but
it is not competent for him to give all the costs to the respondent
when substantially the award has been in favour of the applicant,
Evans v. Gwauncaegurwen Colliery Co.

In Connor v. Meads, an employer applied for diminution of the
weekly payment, having previously offered only 2s., which had
been refused. On the hearing the arbitrator gave the man 7s. 6d.
a week and costs. The employer contended that he was the
successful party, having secured a reduction of the award and that
therefore the arbitrator had no discretion as to the costs and
could not award them against him. The Court of Appeal
agreed with the arbitrator and confirmed the award, as it was
the man who had substantially won and not the appellant. In
Thomas v. Cory it was otherwise. On a workman’s application
for arbitration the employers admitted their original liability, set
up complete recovery and paid into court 11. 18s., a balance due for
compensation. At the hearing the arbitrator found these facts as
admitted and gave the employers their costs on Scale B. The
workman appealed on the ground the award was in his favour
and that a judge had no discretion to award costs against a
successful party. The appeal was dismissed as hopeless.

In Lowestoft Corporation v. Aldridge the employers applied for
compensation to be ended as the man would not consent to be
examined under an anesthetic. Whilst refusing the application,
the arbitrator was of opinion the man was a malingerer, and so
did so without costs and was held to have acted correctly.

(8) In the case of the death, or refusal or inability to act, of an
arbitrator, the judge of the county court may, on the application
of any party, appoint a new arbitrator.

(9) Where the amount of compensation under this Act has been
ascertained, or any weekly payment varied, or any other matter
decided under this Act, either by a committee or by an arbitrator
Workmen’s Compensation Appeals. 161

or by agreement, a memorandum thereof shall be sent, in manner scHED, II.
prescribed by rules of court, by the committee or arbitrator, or, (9)
by any party interested, to the registrar of the county court, aa
who shall, subject to such rules, on being satisfied as to its :
genuineness, record such memorandum in a special register
without fee, and thereupon the memorandum shall for all purposes
be enforceable as a county court judgment.

Provided that—

(a) no such memorandum shall be recorded before seven days
after the despatch by the registrar of notice to the parties
interested; and

(b) where a workman seeks to record a memorandum of agree-
ment between his employer and himself for the payment
of compensation under this Act and the employer, in
accordance with rules of court, proves that the workman
has in fact returned to work and is earning the same
wages as he did before the accident, and objects to the
recording of such memorandum, the memorandum shall
only be recorded, if at all, on such terms as the judge
of the county court, under the circumstances, may think
just; and

(c) the judge of the county court may at any time rectify the
register; and

(d) where it appears to the registrar of the county court, on any
information which he considers sufficient, that an agree--
ment as to the redemption of a weekly payment by a lump
sum, or an agreement as to the amount of compensation
payable to a person under any legal disability, or to
dependants, ought not to be registered by reason of the
inadequacy of the sum or amount, or by reason of the
agreement having been obtained by fraud or undue
influence, or other improper means, he may refuse
to record the memorandum of the agreement sent to
him for registration, and refer the matter to the judge,
who shall, in accordance with rules of court, make such
order (including an order as to any sum already paid
under the agreement) as under the circumstances he may
think just; and

(e) the judge may, within six months after a memorandum of an
agreement as to the redemption of a weekly payment by
a lump sum, or of an agreement as to the amount of
compensation payable to a person under any legal dis-
ability, or to dependants, has been recorded in the
register, order that the record be removed from the:
register on proof to his satisfaction that the agreement
was obtained by fraud or undue influence or other
improper means, and may make such order (includ-
ing an order as to any sum already paid under the
agreement) as under the circumstances he may think
just.

W.C.A. 11
162

SCHED. IT.
(9).

Record of
agreement.

Workmen’s Compensation Appeals.

This paragraph deals with the recording of agreements or
awards made otherwise than by the judge of the county court.

Enforceable as a County Court Judgment.

In Warren v. Roxburgh, a memorandum of agreement provided
for payment of compensation during total incapacity. The
employer stopped payment and the workman applied for leave
to issue execution. Theemployer tendered evidence to show the
man was no longer incapacitated, which the registrar held he had
no jurisdiction to consider, as the question of capacity could only
be decided by an arbitrator under the Act. He therefore gave
leave to issue execution if within seven days the employer did
not apply for review. This order seems to adequately meet the
case. Presumptively there was an existing debt if the incapacity
on which it was based was still existing. Whether this is so or
not the registrar in effect correctly said: “I cannot say or decide.
If, however, your employers say it is not still existing I will give
you facilities for obtaining a decision on the point. If, how-
ever, you do not obtain a decision I shall act on the agree-
ment as now filed.” The employer contended that he himself
should hear the evidence as to incapacity and appealed to the
judge of the County Court, who, in his turn, held he had no
jurisdiction to hear such an appeal as to the duty of the registrar.
The Court of Appeal held he had. As regards the other points
they practically agreed with the position taken up by the registrar,
but a consent order being agreed upon nothing was finally
determined by them.

Genuineness of Agreement.

Directly they are so made, and whether they are express or
only to be implied from the acts of the parties, e.g., by the paying
of compensation weekly, either party is entitled to have this
agreement recorded under this paragraph. The first point upon
which the registrar has to satisfy himself is that the agreement
sent for record is genuine. This does not give him any authority
to inquire into the adequacy or desirability of the agreement,
or in fact into anything other than was it entered into as it
Workmen’s Compensation Appeals. 163

purported to be (Fox v. Battersea Borough Council, discussed ae IL.

under sect. 1 (8) ). Record of
agreement.

Revocation of Agreement.
In Rees v. Consolidated Anthracite Collieries, a workman for-

warded a memorandum of agreement for registration. The
employers made objection to the recording of it. Later on the
man applied for arbitration and then the employers withdrew
their objection and the registrar recorded the agreement.
Then at the hearing of the arbitration proceedings they
took the preliminary objection, a concluded agreement, which
the arbitrator upheld. The Court of Appeal said he should have
heard the application as there was clearly a dispute. So it would
seem that when the applicant commenced proceedings he virtually
withdrew his proffered agreement, such agreement up till then
having been, not merely not accepted, but actually objected to.

Actual Agreement only to be Recorded.

Subject to the provisoes the registrar is only entitled to record
the actual agreement between the parties, and neither he nor
they nor the judge may add anything to it or vary it. Itis
strange the number of times the Court of Appeal have had to
say this. In M‘Carthy v. Stapleton-Bretherton, the agreement
was to pay compensation during total incapacity. The workman
tried to register an agreement to pay also during partial incapa-
city. Here incidentally it may be remarked that the fact that
the agreement cannot also be registered for partial incapacity
does not mean that the workman cannot recover for it. It simply
means that when total disablement comes to an end a new
agreement must be made and recorded, and failing agreement the
amount payable must be settled by arbitration on application
being made in the usual manner. In Lunt v. Sutton Heath
Collieries, the Court of Appeal refused to order the agreement
tendered to be recorded because it did not agree with the
agreement as made. In Shore v. “Hyrcania” (Owners of),
the workman added to an agreement to pay during total incapa-
city the words “until the same shall be ended, diminished or

11—2
164 Workmen’s Compensation Appeals.

SCHED. I, increased by order of the court or by agreement between the
Astaal sarees parties.” The arbitrator refused to record the agreement with
sist a the additions, and the appeal from his decision was dismissed

as quite hopeless; and the same result for the same reason
happened in Maundrell v. Dunkeston Collieries.

In the case of Phillips vy. Vickers, Sons and Maxim, the
same principle was again enforced. An arbitrator ordered the
registration of an agreement which was to be implied from the
payment of 16s. 3d. as if it were general in its terms. The
respondents proved that it was a condition that the payment
should only be made so long as the workman obtained a certificate
from their doctor every fortnight that he was still incapacitated.
It was again held no agreement could be registered other than
was actually entered into.

So the same rule holds in Scotland, and the case of M‘Lean
v. Allan Line Steamship Co., is well worth the perusal in full of
every one having to contest the point in a similar case.

Of course, whilst the rule is so rigid in both countries, at
the same time it well may be that the result is a question arises
under sect. 1 (8), which entitles the man to apply for arbitration.
Whether it does so or not will depend on whether the employer
has offered all that the Act gives and the workman wants more or
whether the employer has offered too little, when the workman
will be entitled to an award.

As to this, see further under sect. 1 (8).

Implied Agreements.

When payments under the Act are made without further
remark what agreement is to be implied ?

Unless a respondent will give an applicant all he is entitled to
under the Act a question arises which will entitle the latter to
demand arbitration. §o in such arbitration he will be entitled to
obtain the ordinary award for payment during partial as well as
total incapacity (Higgins v. Poulson, No. 2). But whilst this is
so, still if an agreement is relied on and sought to be registered,
it must be the agreement itself. In Hartshorne vy. Coppice Colliery
Workmen's Compensation Appeals. 165

Co. it was argued that the agreement to be implied was to bear SCHED. 11.
the full burden of the Act. In this case the respondents said eee
they had never agreed this, but also said they were quite willing oral
for an agreement to be registered for total incapacity. The man sgreements.
tried to register an agreement such as he would have obtained
on arbitration which the judge allowed but the Court of Appeal
disagreed with. The course the man should have adopted was on
such registration being resisted to have abandoned it and at once
ask for arbitration, when he might have been given what he
wanted.

In Phillips v. Vickers Maxim, just cited as an authority that
the only agreement to be registered is the actual agreement
entered into, there is a valuable obiter by Fletcher Moulton, L.J.,
as to the inadvisability of presuming merely from payment a
cut-and-dried agreement capable of being registered : “ The effect
of such a decision would be that employers would not be willing
to pay compensation during the time they were satisfied there
was incapacity and workmen would be driven to proceed at once
to law. The mere fact that an employer pays when he clearly
recognises that compensation is due does not, in my opinion,
justify the court in coming to the conclusion that he has come
to an agreement to continue the payments for any future time.”

Record of ‘‘Spent’’ Agreement after Workman’s Recovery.

Under the old Act an agreement could practically be recorded at SCHED. II,
any time, whether stale or otherwise. This is now modified by ates
the proviso which has been considerably added to in the present workman's

Act. Now if a workman has returned to work and is earning his Snee
original wages his employer is entitled to object to the recording
of the agreement, or to its being recorded except on terms. So
his right to object has been much extended by the case of Popple
v. Frodingham Iron and Steel Co. Here an agreement for total
incapacity was entered into. The man being only partially
incapacitated when he applied for it to be registered, the judge

refused to record it on the ground it was a spent agreement.
166

SCHED. II..
(9).
Record after
workman’s

recovery.

Workmen's Compensation Appeals.

As an agreement when registered can be enforced as a county
court judgment, and as this paragraph applies only to compensa-
tion payable and does not extend to compensation which as a
matter of history had been payable, the Court of Appeal held he
was right and refused to follow the Scotch case of Coakley
v. Addie, i.e., if that case on its facts was a decision to the
contrary.

In L. é N. W. BR. v. Taylor, a workman had been injured, and
had received compensation, but did not record any agreement.
He recovered and returned to work at full wages for nearly a year.
Then he had a nervous breakdown, due, he said, to the accident ; to
influenza, said his employers. He applied to record anagreement
to pay him compensation. His employers objected on the ground
he had recovered. Alternatively they asked that if an agreement
were recorded there should be a stay of all proceedings under it
pending their application to review. This latter course the
arbitrator adopted, and on the review he accepted the employers’
theory of the man’s breakdown, and ended the agreement. On the
hearing of the appeal the further point was taken that an
arbitrator has no power to terminate an agreement, though he
may end the weekly payments, and if there is at any time a
recrudescence of the injury, whether payments are ended or not,
the man is entitled to ask for a review of the original agreement.
This point the Court of Appeal evaded in this case, as the recorded
agreement was for payments to be made until ended, and in their
view the agreement automatically ended with them. On the
case being taken to the House of Lords they decided that
weekly payments could be finally ended, though in this particular
case there was no power to end the agreement as such. In the
Scotch case of Cadenhead v. Ailsa Shipbuilding Co., the point was
raised and it was definitely decided that there was no absolute
right to a new award on the recrudescence of the injury. And
now in Hargreave v. Haughhead Coal Co., the House of Lords
have finally settled the matter in the same way. (See also
under Sched. I. (8), Able to earn.)

In Turner v. Bell, a man told his employers he had
Workmen's Compensation Appeals. 167

ruptured himself by accident, and they paid him compensation Por Il.
for twenty-one weeks. Something aroused their suspicion and Record after
they then stopped their payments and also disputed the accident ae
itself. The man applied for arbitration, claiming that the
tubercular disease of the testicles from which he suffered was
caused by the accident. The arbitrator found it had no connec-
tion with the alleged accident, and made an award in favour of
the employers.

Some months later the workman applied to record an agree-
ment implied from the payments made him, but the judge held
the matter was res judicata, and declined to take any notes.

The solicitor made an affidavit of what took place, which the
Court of Appeal accepted. The application that the case ought
to be remitted to the arbitrator to hear was treated as a sub-
stantive appeal and dismissed on its merits.

Suppose the workman whilst in receipt of payments had
registered the agreement, what then would have.been the position
of.the employers? Probably on fraud being proved the Court
would set aside any agreement ; but supposing fraud could not
have been sufficiently shown to justify this measure, then the
logic of the position would have been that the employers admitted
the accident and the consequent rupture, but they applied for
review on the ground of change of circumstances, the change
being the man no longer suffered from rupture, and that if he
suffered at all it was from another and distinct cause, viz.,
tuberculosis.

In Frogbrook v. Potts, an employer paid his apprentice full
wages of 10s. a week, under the mistaken impression he was
an infant. When he discovered he was of full age he declined
to pay more than half, whereupon the workman applied to
have the agreement recorded. The arbitrator refused, and on
appeal the. Court suggested a settlement at 7s. 6d. a week,
subject to review, and gave the workman his costs both of the
appeal and below. As reported the case is simply inexplicable.
What agreement, if any, is to be implied from a payment of
10s. a week obtained by fraud. But the Court of Appeal at no
168

SCHED. II.
(9).
Record after
workman’s
recovery.

SCHED. II.

(°).
Record of
agreements
for redemp-
tion.

Workmen’s Compensation Appeals.

time, and especially as then constituted, are likely to give costs
without very good reasons which certainly in this case are not
very apparent.

Rectification of Register (Sub-par. (c) ).

When a wrong agreement gets on the register it is very
difficult to get it off again, and practically the only way to get
relieved of liability is by review (Wilson’s & Clyde Coal Co. v.
Cairnduff. Sub-par. (c) is limited to rectification of slips and
errors in drawing up and does not extend to making substantial
alterations or varying the agreement itself. Thus, the appellant
got recorded an agreement, in which was stated “she being
then under twenty-one,” by which she received 8s. 2d. com-
pensation instead of 4s. 1d., to which she was only entitled.
The arbitrator was not asked to review under Sched. I. (16)
as he should have been, but on the employers finding her to be
over twenty-one, they asked him to rectify the register, which he
did. A very material point in the case was whether at the
date of the accident she was or was not under twenty-one. It
occurred on her twenty-first birthday, and questions very similar
to whether 1900 is the last year of one century or the first of
another were argued with much erudition and enthusiasm. Of
course, if the accident occurred to her as an infant her position on
review would be much better than if of full age, as the datum line
of her original wages would be estimated from time to time, instead
of being rigidly fixed by what at the time she was actually earning.

Accordingly it was more than a mere matter of form how
the arbitrator proceeded, and as he did so in a wrong manner the
appeal was allowed and with costs.

Record of Agreements for Redemption.

Thus far the Court deals with agreements purely ministerially,
its province being to determine, are they genuine or is there any
reason under proviso (b) for their not being recorded or only
recorded on terms. But under proviso (e) it is the duty of the
Court to inquire not merely into the genuineness of the agree-
Workmen’s Compensation Appeals. 169

ment but into its adequacy as well. Thus in “ Segura’’ SCHED. II.
(Owners of) v.-Blampied, the registrar, thinking the amount ea si
agreed upon to compound was too small, referred it to the judge. ann:
On his holding he had only to inquire into the fact had the tion.
agreement been made or had it not, the Court referred it back to

him to determine the question of adequacy as well. But note, this

does not entitle him to say what amount shall be given. If the
amount is inadequate he can say so and refuse to record the
agreement ; but this is the limit of his powers (Mortimer v.
Secretan). The case of Beech v. Bradford Corporation, is a
curious one. The corporation agreed to pay their work-

man a lump sum to settle their liability. The judge thought

the amount inadequate, and refused to record the agreement.

The workman then applied for arbitration, when the judge found

the amount already paid sufficient, and that the man was not
suffering from the accident, and ended the payments. It was

then objected, but without success, that,as a matter of procedure,

it was not open to the arbitrator to find against the workman on

this application. But the Court held that on refusal to record

the agreement the matter recommenced de novo on an application

for arbitration being made. A similar result happened in
Marriott v. Brett. An arbitrator refused to allow an infant’s

claim to be compromised, and when the case came to be heard

by him he found for the master, as the accident did not arise out

of the employment.

But since these cases Ryan v. Hartley has been decided, which
makes a distinction which will be highly approved by employers
and their insurers. We have seen that when once a weekly
payment has been made or agreed it can only be safely com-
pounded for as provided for by this par. (9), and the next one,
par. (10). But this case decided that since no weekly payment
had been made or agreed the man might receive a lump sum in
compromise of his claim under the Act, and that it would be
valid even if not registered. In this case he was a bricklayer who
slipped and injured a tendon of his leg. The employers paid
him 35s. in full satisfaction of all claims. He took the money
170

SCHED. II.
(9).
Record of
agreements
for redemp-
tion.

Workmen’s Compensation Appeals.

and gave a receipt and filled in his occupation and address only,
and when later on he repudiated the agreement as not signed nor
understood, the arbitrator found he had left out his signature by
a trick and decided for the employers. The non-signing was the
first bad point taken on appeal. The second bad point was that
the employers’ answer did not set up the accord and satisfaction.
As usual, when the real point has been before the arbitrator the
Court of Appeal heard the appeal on the basis of his having
allowed an amendment and hopelessly prejudiced against the
man’s case, dismissed the appeal. As far as these pars. (9) and (10)
are concerned, and which alone were dealt with by the learned
Court, this seems clear enough. At the same time, we should
have liked to have had the bearing of sect. 3 (1) on the subject
dealt with. This section, it will be remembered, deals with
contracting out. After stating the manner in which the Act may
be contracted out of, it says—Save as aforesaid, this Act shall
apply notwithstanding any contract to the contrary made after the
commencement of this Act. In these words is there any limitation
to contracts made before an accident, and would it not seem to
apply equally to contracts made after an accident, as in this case.
If a man is admittedly within the Act and claims under the Act,
so far no doubt the Act is not contracted out of. But inasmuch
as the Act only permits of one class of compensation being paid,
namely, a weekly payment, with special provisions for its being
compounded, how is it open to the parties to make any con-
tract varying this provision? If this is so, how can the payment
of 35s. have been effectual unless approved as a composition of
a weekly payment ?

No doubt sect. 3 (1), may only apply to contracts made before
an accident, though it does not say so, and equally, no doubt,
compromises by the score are agreed again and again, but still it
may be they also ought to be approved of by the Court to be
binding. Possibly where there is a genuine dispute as to whether
a claim is or is not within the Act, ¢.g., whether a man was a
“workman” or contractor, sect. 8 (1), might not apply, but
generally is this the case. (See, further, under Sect. 3.)
Workmen’s Compensation Appeals. 171

(10) An agreement as to the redemption of a weekly payment scHED. II.
by a lump sum if not registered in accordance with this Act (10).
shall not, nor shall the payment of the sum payable under the aoe
agreement, exempt the person by whom the weekly payment is tor cet be
payable from liability to continue to make that weekly payment, registered.
and an agreement as to the amount of compensation to be paid
to a person under a legal disability or to dependants, if not so
registered, shall not, nor shall the payment of the sum payable
under the agreement, exempt the person by whom the compensa-
tion is payable from liability to pay compensation, unless, in
either case, he proves that the failure to register was not due to
any neglect or default on his part.

_ (11) Where any matter under this Act is to be done in a SCHED. II.
county court, or by, to, or before the judge or registrar of a_ @.-
county court, then, unless the contrary intention appear, the Jurisdiction.
same shall, subject to rules of court, be done in, or by, to, or

before the judge or registrar of, the county court of the district in

which all the parties concerned reside, or if they reside in different

districts the district prescribed by rules of court, without pre-

judice to any transfer in manner provided by rules of court.

(12) The duty of a judge of county courts under this Act, or SCHED. II.
in England of an arbitrator appointed by him, shall, subject to ©)
rules of court, be part of the duties of the county court, and the Puttes :
officers of the court shall act accordingly, and rules of court may an court
be made both for any purpose for which this Act authorises rules —Rules of
of court to be made, and also generally for carrying into effect Court to be
this Act so far as it affects the county court, or an arbitrator” ”
appointed by the judge of the county court, and proceedings in
the county court or before any such arbitrator, and such rules
may, in England, be made by the five judges of county courts
appointed for the making of rules under section one hundred
and sixty-four of the County Courts Act, 1888, and when allowed
by the Lord Chancellor, as provided by that section, shall have
full effect without any further consent.

(18) No court fee, except such as may be prescribed under scHED. II.
paragraph (15) of the First Schedule to this Act,shall be payable (18)-
by any party in respect of any proceedings by or against a, No court fees.
workman under this Act in the court prior to the award.

(14) Any sum awarded as compensation shall, unless paid into SCHED. II.
court under this Act, be paid on the receipt of the person to (4.
whom it is payable under any agreement or award, and the sigh
solicitor or agent of a person claiming compensation under this . ;
Act shall not be entitled to recover from him any costs in respect
of any proceedings in an arbitration under this Act, or to claim
a lien in respect of such costs on, or deduct such costs from, the
sum awarded or agreed as compensation, except such sum as may
be awarded by the committee, the arbitrator, or the judge of the
county court, on an application made either by the person claim-
ing compensation, or by his solicitor or agent, to determine the
amount of costs to be paid to the solicitor or agent, such sum to
172

SCHED. II,
(14).

SCHED. II,
(15).
Submission
to medical

referee.

SCHED. II.

(16).
Powers
conferred on
committees,
etc.

Workmen's Compensation Appeals.

be awarded subject to taxation and to the scale of costs prescribed
by rules of court. ;

(15) Any committee, arbitrator, or judge may, subject to
regulations made by the Secretary of State and the Treasury,
submit to a medical referee for report any matter which seems
material to any question arising in the arbitration.

Confusion exists between reference under this paragraph and
under par. (15) of Sched. I., which. provides solely for reference
by the joint request of the parties. As to this, see further under
the previous paragraph.

By No. 20 of the regulations of June 24, 1907, it is required
as follows :—

20. Before making any reference, the . . . judge shall be satisfied after
hearing medical evidence tendered by either side that such evidence is
either conflicting or insufficient on some matter which seems material to a
question arising in the arbitration, and that it is desirable to obtain a report
from a medical referee on such matter.

Thus, in Henricksen v. “ Swanhilda” (Owners of), the
owners took the objection that the judge had made a reference
under this paragraph before it was permissible under the conditions
laid down in this regulation, viz., where there was a conflict of
evidence. With this the Court did not agree, and held the refer-
ence was correctly made. Equally they did so in the case of
Carolan v. Harrington, 27 T. L. R. 486, where the defendants, find-
ing the decision of the referee as to the cause of death was against
them, took the objection the arbitrator had no power to refer, as
the regulations were framed only to deal with a workman when
alive and whom the referee could see and examine. The words
“ subject to regulations ” only limit the power of the arbitrators in
matters they deal with, not in those on which they are silent.
Hence the powers are those found in the words of this paragraph.
So it would seem such objection, even if valid, to have been suc-
cessful, ought to;,;have been taken before and not after the
reference was made.

(16) The Secretary of State may, by order, either uncondi-
tionally or subject to such conditions or modifications as he
may think fit, confer on any committee representative of an
employer and his workmen, as respects any matter in which
the committee act as arbitrators, or which is settled by agree-
,Workmen’s Compensation Appeals. 173

ment submitted to and approved by the committee, all or any SCHED. Il.
of the powers conferred by this Act exclusively on county courts , So
or judges of county courts, and may by the order provide how canlorred on
and to whom the compensation money is to be paid in cases committees,
where, but for the order, the money would be required to be %

paid into court, and the order may exclude from the operation

of provisoes (d) and (e) of paragraph (9) of this schedule agree-

ments submitted to and approved by the committee, and may

contain such incidental, consequential, or supplemental pro-

visions a8 may appear to the Secretary of State to be necessary

or proper for the purposes of the order.

(17) In the application of this Schedule to Scotland— SCHED. II.
(a) ‘County Court judgment” as used in paragraph (9) of @®-.
this schedule means a recorded decree arbitral : Application

(b) Any application to the sheriff as arbitrator shall be heard, * 5°°t#"¢-
tried, and determined summarily in the manner provided
by section fifty-two of the Sheriff Courts (Scotland) Act, 39 & 40 Vict.
1876, save only that parties may be represented by any & 7
person authorised in writing to appear for them and
subject to the declaration that it shall be competent to
either party within the time and in accordance with the
conditions prescribed by act of sederunt to require the
sheriff to state a case on any question of law determined
by him, and his decision thereon in such case may be
submitted to either division of the Court of Session, who
may hear and determine the same and remit to the
sheriff with instruction as to the judgment to be
pronounced, and an appeal shall lie from either of
such divisions to the House of Lords:
(c) Paragraphs (8), (4), and (8) shall not apply.
(18) In the application of this schedule to Ireland the expression SCHED. II.
“ judge of the county court” shall include the recorder of any , CM cin
city or town, and an appeal shall lie from the Court of Appeal ¢¢ Treland.
to the House of Lords.
174

SCHED. III.

Workmen's Compensation Appeals.

THIRD SCHEDULE.

 

Description of Disease.

Description of Process.

 

Anthrax. . . « «
Lead poisoning or its sequela

Mercury poisoning or its se-
quelz.

Phosphorus poisoning or its
sequelee.

Arsenic poisoning or its sequel.

Ankylostomiasis . . .

 

Handling of wool, hair, bristles, hides, and
skins.

Any process involving the use of lead or its
preparations or compounds.

Any process involving the use of mercury
or its preparations or compounds. -

Any process involving the use of phosphorus
or its preparations or compounds.

Any process involving the use of arsenic
or its preparations or compounds.

g-

 

Where regulations or special rules made under any Act of
Parliament for the protection of persons employed in any
industry against the risk of contracting lead poisoning require
some or allof the persons employed in certain processes specified
in the regulations or special rules to be periodically examined
by a certifying or other surgeon, then, in the application of this
schedule to that industry, the expression “ process ”’ shall, unless
the Secretary of State otherwise directs, include only the processes

80 specified.
THE WORKMEN’S COMPENSATION
RULES, 1911.

Datep Marca 81, 1911.

These Rules shall come into operation on the first day of May, one
thousand nine hundred and eleven.

Submission to Award or Payment into Court by Respondent.

1.—(1.) Bule 18 (5) (c) of the principal Rules shall have effect as if the Rule 18 6)
following words were inserted therein after the words “‘ payment into court,” (ce).
viz. 3 — ae

‘‘and his or their costs properly incurred in relation to the notice of See
submission to an award or payment into court, and to the notice of (5) (c).
acceptance.”

(2.) The words ‘and his costs properly incurred in relation to the notice Amendment
of the offer of the said weekly sum [or the notice of payment of the said sum of Form 18
of £ into court] and to this notice, and in attending at the court to
obtain an award” shall be added at the end of Form 18 in the Appendix.

Abridgment of Time for Service, de.

2. The judge or registrar may for good cause shown abridge the time for Rule 264.
service of a request for arbitration on any respondent, or the time for filing _——
an answer or serving a third party notice under these Rules; and if an order ieee
is made to that effect a copy of the order shall be annexed to and served with service,

the notice to be served on the respondent. answer, &c,

Procedure on Arbitration.

8. The words ‘‘in so far as such procedure is applicable to proceedings by Rule 27.
way of arbitration” shall be inserted in Rule 27 of the principal Rules after —

i : ” Amendment
the wor without a jury. of Rule 27.

Proceedings against Insurers under Section 5.

4. Paragraph 3 of Rule 35 of the principal Rules is hereby annulled, and Rule 35a.
the following paragraph shall stand in lieu thereof, viz. :— deeraies
(3.) Subject to the provisions of the contract between the employer o¢ Rule 35,

and the insurers as to the settlement of differences or disputes between Arbitration

the employer and the insurers, the provisions of the Act and these Rules between

as to the settlement of matters by arbitration shall with the necessary roe and

modifications apply to the settlement by arbitration, as between the .

workmen and the insurers, of any question as to the liability of the p17.

insurers to the workman or the amount of their liability, and of any

other question which would under the Act be the subject of arbitration

between the workman and the employer if the rights, remedies, and

liability of the employer had not been transferred to the insurers.
176

Rule 56c.

Payment into
court where
liability
denied.

Form 53p.

Rule 604,
Payment of
arrears of
weekly
payments on
death of
workman
residing out
of United
Kingdom,

Form 594,

Workmen’s Compensation Rules, 1911.

Payment into Court and Investment and Application of Money payable in case
of Death: Schedule I., Paragraph 5.

5.—(1.) Where a claim for compensation has been made by or on behalf
of dependants, and the employer denies liability, but is willing to pay an
amount in settlement of the claim, and such of the dependants as are not
under disability are willing to accept such amount in settlement, the
employer may pay such amount into the court to which, if an agreement had
been come to in the matter, a memorandum of such agreement would be
sent to be recorded.

(2.) Where money is to be paid into court under this rule, the employer
shall lodge with the registrar a preecipe, in duplicate, according to the Form 53p
in the Appendix, containing a statement of the particulars mentioned in
that form. The employer shall annex to one copy of the precipe a form of
receipt according to the said form, and the registrar on receipt of the sum
paid in shall sign the receipt and return the same to the employer, and the
employer shall forthwith give notice to the persons interested in the sum
paid in of such payment having been made.

(3.) On the payment of money into court under this rule, the registrar
shall proceed according to paragraph 3 of the last preceding rule, and the
provisions of that rule shall apply to proceedings subsequent to such payment.

Payment of Arrears of Weekly Payments on Death of Workman residing out oy
Onited Kingdom.

6.—(1.) In the event of the death of a workman in receipt of weekly; pay-
ments while residing out of the United Kingdom, his representatives shall,
for the purpose of obtaining payment of the arrears due to the workman,
forward to the registrar a certificate of the death of the workman, and
documents showing that they are entitled to such arrears, verified by declara-
tion before a person having authority to administer an oath, with a request
for payment of such arrears, specifying the place where and the manner in
which the amount is to be remitted to them.

(2.) For the purposes of this rule the expression “representatives” shall
mean—

(a) if the workman leaves a will, the executors of such will; or

(d) if the workman dies intestate, the persons who are according to law

entitled to his personal estate, and payment of the arrears may be
made to such persons without the production of letters of administra-
tion.

(3.) On the receipt of the certificate and documents mentioned in this rule
the registrar shall examine the same, and may, if not satisfied that the same
are in order, return the same for correction.

(4.) If the registrar is satisfied that the certificate and documents are in
order, or when they are returned to him in order, he shall send to the
employer a notice requesting him to forward the amount due, and the employer
shall thereupon forward the amount to the registrar, who shall remit the
same, less any fees payable to the registrar and the costs of transmission, to
the representatives of the workman at the address and in the manner
requested by them, such remittance being in all cases at the cost and risk
of such representatives.

(5.) Form 59 in the Appendix shall be amended by the addition thereto of
the paragraph in the Appendix.
Workmen’s Compensation Rules, 1911.

Procedure generally.

7. The words ‘‘in so far as such procedure and provisions are applicable
to proceedings by way of arbitration” shall be added at the end of Rule 80
of the principal Rules.

Supply and filling up of Forms.
8.—(1.) The registrar of any court may apply to the Treasury for any of
the forms required to be used by parties to proceedings in court under the

Act, notwithstanding that such forms are marked in the Appendix as “not ¢

to be printed,” and if such application is granted may obtain such forms and
supply the same without charge for the use of parties to such proceedings.

(2.) Where any party to any proceeding is illiterate, and unable to fill up
any form required to be used, it shall be the duty of the registrar or his
clerk to fill up such form.

The Workmen’s Compensation (Anglo-French Convention) Act, 1909, and Order
tn Council (22nd November, 1909).

9. Where a request for arbitration is filed by or on behalf of a workmdn
who is a French citizen, or by or on behalf of the dependants of a deceased
workman who was a French citizen, the following provisions shall apply.

10. The request and particulars shall state that the workman is or the
deceased workman was a French citizen.

11. The court in which proceedings are to be taken shall be determined in
accordance with Rule 73 of these Rules.

12. A respondent who intends to rely as a defence on paragraph (1) of the
Order in Council dated the 22nd day of November, 1909, made under the
Workmen’s Compensation (Anglo-French Convention) Act, 1909 (in these
Rules referred to as ‘‘ the Order in Council’’), shall state the facts on which
he intends to rely in his answer in accordance with Rule 17 of these Rules.

13. Any lump sum payable in redemption of a weekly payment payable
to a workman who is a French citizen, which is to be paid into court pur-
suant to paragraph (3) of the Order in Council, shall when so paid be
invested by the registrar in the purchase of two immediate annuities of
equal value on the life of and in the name of the workman from the National
Debt Commissioners through the Post Office Savings Bank, the first half-
yearly instalment of the first of such annuities to be payable on the second
quarterly day of payment next following the day of purchase, and the first
half-yearly instalment of the second of such annuities to be payable on the
third quarterly day of payment next following the day of purchase.

When applying to the Post Office Savings Bank for the purchase of any
such annuities the registrar shall inform the Department that the case is one

W.C.A. 12

177

Rule 804.
Amendment
of Rule 80.

Rule 85.
Supply of
orms,

Filling up of
forms.

Rule 86.

Special pro-
visions as to
French
citizens.

9 Edw. 7,

ce. 16. Order
in Council,
22 Noy.,
1909,

Rule 87.
Request and
particulars,

Rule 88.

In what \
court pro-
ceedings to
be taken.

Rule 89.
Answer
where
respondent
relies on
Order in
Council,
par. (1).

Rule 90.
Investment
in Post Office
annuity of
lump sum
payable.in
redemption
of weekly
payment.
Order in
Council,
par. (3).
Post Office
Regulations,
178

1888 and
1895.

Rule 91.
Transmission
to France of
lump sum
payable in
redemption
of weekly
payment to
French
citizen who
returns to
reside in
France.
Order in
Council,
par. (4).
Form 554.

Rule 92.
Transmission
to France of
sum payable
as compensa-
tion to
dependants
of French
citizen who
reside in or
return to
France.
Order in
Council,
par. (4).

Rule 93,

Where work-
man in receipt
of weekly
payments
intends to
return to
reside in
France.
Order in
Council,

ar. (5).

‘orm 568.

Workmen's Compensation Rules, 1911.

under the Order in Council; and the workman shall sign such documents
and furnish such evidence as may be required by the Post Office Annuity
and Insurance Regulations, 1888 and 1895, to enable such annuities to be so
purchased.

14. Where a lump sum payable in redemption of a weekly payment to a
workman who is a French citizen has been paid into court, then, if the
workman returns to reside in France, such sum (unless the same has been
invested in pursuance of the last preceding rule) shall, on the application of
the workman, be paid over by the registrar to the ‘‘Caisse Nationale
Francaise des Retraites pour la Vieillesse” (in these Rules referred to as
‘the Caisse ”).

Any such sum shall be transmitted by the registrar to the Caisse by
registered post letter, inclosing a crossed cheque for the total sum due to the
workman, and shall be accompanied by a certificate according to the form in
the Appendix, and the registrar shall on the application of the workman
forward to him a copy of the certificate.

15.—(1.) Where a sum payable as compensation to the dependants of a
deceased workman who was a French citizen has been paid into court, then,
if the dependants resided in France at the time of the death of the workman,
or subsequently return to reside in France, such sum shall, on the application
of the dependants, be paid over to the Caisse.

(2.) Any such sum shall be transmitted in accordance with the last pre-
ceding rule, and the registrar shall, on the application of the dependants,
forward to them a copy of the certificate.

16.—(1.) Where a workman who is a French citizen is in receipt of a
weekly payment, and such workman intends to return to reside in France,
the following provisions shall have effect under paragraph (5) of the Order
in Council.

(2.) The payments of the amount of compensation due to the workman
shall be made at intervals of three months.

(3.) The workman may apply to the registrar for a certificate of a medical
referee as to the nature of the incapacity resulting from the injury.

(4.) The application shall be made on notice in writing, according to the
form in the Appendix, which shall be filed with the registrar; and a copy
of the application shall be served on the employer in accordance with
Rule 48 ; and the applicant shall file a copy of the application for the use of
the medical referee.

(5.) The employer may, on being served with notice of the application,
require the workman to submit himself for examination by a medical practi-
tioner provided and paid by the employer, in accordance with paragraph 14
of the First Schedule to the Act; and if the employer requires the workman
to submit himself for such examination he shall before or at the hearing of
the application furnish the workman with a copy of the report of that prac-
titioner as to the workman’s condition, and file a copy of the report for the
use of the medical referee.
Workmen’s Compensation Rules, 1911.

(6.) The workman and the employer respectively may before or at the
hearing of the application submit to the registrar such statements in writing
as they may think fit, with copies of such statements for the use of the
medical referee.

(7.) On the hearing of the application the registrar shall make an order
referring the question to one of the medical referees appointed for the area
comprising the district of the court. The order of reference shall be accord-
ing to the form in the Appendix, and shall state the injury in respect of
which the award was made, so far as it appears on the records of the court:
and the registrar shall forward the order to the medical referee by registered
post, accompanied by a copy of the application and of any reports and state-
ments submitted to him by either party.

(8.) The registrar shall also make an order directing the workman to
submit himself for examination by the medical referee, subject to and in
accordance with any regulations made by the Secretary of State; and the
provisions of paragraphs 5 and 6 of Rule 54 shall apply.

(9.) The medical referee shall forward his certificate in the matter to the
registrar by registered post, specifying fully therein the nature of the
incapacity (if any) of the workman resulting from the injury; and the
registrar shall thereupon proceed in accordance with paragraph 8 of Rule 54.

(10.) Where the medical referee certifies that the workman is suffering
from incapacity resulting from the injury, the registrar shall, on the appli-
cation of the workman, made on notice in writing and served on the
employer two clear days at least before the hearing of the application, fix
the intervals at which the workman shall be bound to produce, in support of
his demand for payment of the amount of compensation due to him, a
medical certificate that the incapacity resulting from the injury continues.
These certificates shall be required at such intervals, not being less than
three months nor more than twelve months from the date to which pay-
ment was last made, as the registrar may determine, having regard to the
nature of the incapacity.

(11.) On the intervals being fixed, the registrar shall send a copy of the
order to the workman and to the employer, and shall on application furnish
the workman with

(a) a copy of the certificate of the medical referee, sealed with the seal of
the court and certified by the registrar in his own handwriting to be
a true copy;

(b) a copy of the award under which the weekly payment is payable,
sealed with the seal of the court and certified by the registrar in his
own handwriting to be a true copy ;

(c) a certificate of identity according to the form in the Appendix ; and

(d) a notice according to the form in the Appendix ;
and shall procure from the workman a specimen of his signature, and file
the same for reference.

(12.) For the purpose of obtaining payment of the compensation due to
him, an injured workman who is a French citizen, and has returned to reside
in France, shall at intervals of three months from the date to which such
payment was last made produce to the mayor of the commune in which he
resides the certificate of identity furnished under the last preceding para-
graph, and shall obtain from the mayor a certificate that such workman was
alive on the day when the certificate of identity was produced. He shall
also, at the intervals fixed by the registrar, obtain from a medical practitioner

12—2

179

Form 578.

Form 50,

Form 51.

Forms 57¢,
57D.

Form 57D.

Form 58a.
Form 598.
180

Form 63.

Workmen’s Compensation Rules, 1911.

employed in an official capacity in the department in which the workman
resides a certificate that the incapacity specified in the certificate of the
medical referee as resulting from the injury still continues.

(18.) The certificate of the mayor mentioned in the last preceding para-
graph, and, where a certificate of a medical practitioner is required under
that paragraph, such certificate (which certificate or certificates must be
authenticated by a visé of the prefecture of the department attesting the
official status of the mayor and medical practitioner respectively), shall be
forwarded, with a request for payment of the amount of the weekly payments
due to the workman, to the French consular authority for the district in
which the court is situated, to be by him transmitted to the registrar.

(14.) In the event of the death of a workman in receipt of weekly pay-
ments who is a French citizen residing in France, his representatives shall,
for the purpose of obtaining payment of the arrears due to the workman,
forward a certificate of the death of the workman and documents showing
that they are entitled to such arrears, with a request for payment of such
arrears, to the consular authority, to be by him transmitted to the
registrar.

(15.) On receipt of the documents mentioned in paragraph 13 or paragraph
14 the registrar shall send to the employer a notice according to the form in
the Appendix, requesting him to forward the amount due; and the employer
shall thereupon forward the amount to the registrar, who shall remit the
same without charge to the consular authority, to be remitted to the work-
man or his representatives.

APPENDIX.

Form 53.

Preecipe for Payment into Court under Schedule 1, Paragraph 5, and Rule 56c,
where Liability to pay Compensation is denied, but the employer is willing
to pay a sum in Settlement.

In the County Court of holden at ‘
In the matter of the Workmen’s Compensation Act, 1906,

and
In the matter of a claim for compensation made by the dependants of A.B.
, late of , deceased, against C.D. , of

TaKE NOTICE,

1. That « claim has been made under the above-mentioned Act by [or on
behalf of] the dependants of A.B. ; late of , deceased, against
C.D. , of , for compensation in respect of the injury caused to
such dependants by the death of the said A.B. ,who died on the

day of ,19 .

2. The said dependants allege that the death of the said .4.B. resulted
from personal injury by accident arising out of and in the course of his
employment caused to the said A.B. on the day of at
(state place of accident) while he was employed as a workman by the said C.D.

for by EF. , a contractor with the said C.D. for the
execution of work undertaken by them].

[Or, in case of industrial disease]

[2. The said dependants allege that the death of the said A.B. was
caused by , a disease coming within Section 8 of the Workmen’s Com-
pensation Act, 1906, and that the above-mentioned disease was due to the
Workmen’s Compensation Rules, 1911.

nature of the employment of the said 4.2. in (describe employ-
ment), and that he was last employed in such employment within the twelve
months previous to his disablement [or suspension from his usual employ-
ment] [or, if the workman died without having obtained a certificate of disable-
ment, or was not at the time of his death in receipt of a weekly payment on
account of disablement, within the twelve months previous to his death] by the
said C.D. a

3. The said CD. deny their liability to pay compensation under the
above-mentioned Act to the dependants of the said A.B. , but to avoid
litigation are willing to pay the sum of £ in full settlement of all claims
to such compensation, and such of the dependants of the said A.B. as
are not under disability are willing to accept such sum in settlement.

4. The said C.D. > of {or Messrs. » solicitors for the said
C.D. , of ], do therefore pay into court [when paid in by solicitors
add at the request of the said C.D. ] the sum of [state sum in
letters] being the amount which they are willing to pay in full settlement of
all claims to compensation in the above-mentioned matter.

5. (a.) The said A.B. was at the date of the accident [or disablement
or suspension or death] years of age.

(b.) He was employed as , and his earnings in the employment of the
said C.D. during the three years next preceding the injury [or disable-
ment or suspension or death] [or his average weekly earnings during the
period of his employment under the said C.D. ] were :

(c.) To the best of the knowledge and belief of the said C.D. the
persons interested as dependants of the said A.B. are [state depen-
dants, with their ages and relationship to deceased so far as known].

6. The grounds on which the said C.D. deny their liability to pay
compensation are as follows, viz :—

Dated this day of 19

(Signed)
[or

Solicitors for }.

To the Registrar,
County Court.
Received the above-mentioned sum of , Subject to inquiry as to
adequacy.
Registrar.
(Date.)
Form 55a.

Certificate of Registrar where lump Sum payable in Redemption of weekly
Payments to French Citizen or Sum payable to Dependants of French Citizen
is to be transmitted to France. Rules 91, 92.

In the matter of the Workmen’s Compensation Act, 1906, and the Work-
men’s Compensation (Anglo-French Convention) Act, 1909.
No. of matter

In the matter of an arbitration between A.B. of , Applicant,
and
C.D. of , Respondents.
I hereby certify—

1. That on the day of an award was made by the Judge of

181
182

Workmen’s Compensation Rules, 1911.

this Court in the above-mentioned matter, whereby the above-mentioned

C.D. were ordered to pay to the above-mentioned A.B. , & French
citizen, the weekly sum of as compensation for personal injury caused
to the said A.B. on the day of by accident arising out of

and in the course of his employment as a workman employed by the said
C.D. :

2. And that on the day of a further award was made by the
Judge of this Court in the above-mentioned matter, whereby the above-
mentioned C.D. were ordered to pay to the said A.B. the lump
sum of £ in redemption of the said weekly payment :

3. And that the said 4.B, has signified to me his intention of
returning to reside in France.

[Or, in case of deceased workman,

I hereby certify—

1.’ That on the day of an award was made by the Judge of this
Court in the above-mentioned matter, whereby the above-mentioned C.D.

were ordered to pay to [here insert names of dependants, as appearing
in the award]

the dependants of
A.B. , late of , deceased, a French citizen, the sum of £ as
compensation for the injury resulting to such dependants from the death of
the said A.B. which took place on the day of from injury
caused to the said A.B. on the day of by accident arising
out of and in the course of his employment as a workman employed by the
said C.D.

2. And that the dependants of the said A.B. have signified to me
their intention of returning to reside in France [or resided in France at the
time of the death of the said A.B. J.J

I do therefore, pursuant to the Workmen’s Compensation (Anglo-French
Convention) Act, 1909, and the Order in Council made thereunder, herewith
pay over to the Caisse Nationale des Retraites pour la Vieillesse the sum of
£ sterling, being the total sum due to the said A.B. Lor to the
dependants of the said A.B. ] under the said award, to be applied in
accordance with the said Convention.

Dated this day of
Registrar.
To the Controller
Caisse Nationale Francaise des Retraites pour la Vieillesse,
Paris, France.

Form 563.

Application by Workman in Receipt of weekly Payment, who is a French Citizen
and intends to return to reside in France, for Reference to Medical Referee
under Rule 93 (4).

In the County Court of holden at
In the matter of the Workmen’s Compensation Act, 1906,
and
In the matter of an award recorded in the above-mentioned Court as to
the weekly payment payable to A.B. of by C.D. & Co., Limited,
of :
TaxE NorTIcE, that 4.B. of , a French citizen, to whom under
Workmen's Compensation Rules, 1911.

an award in the above-mentioned matter recorded in this Court on the
day of a weekly payment of is payable by the above-mentioned
C.D. & Co., Limited, as compensation for personal injury caused to the
said A.B. by accident arising out of and in the course of his employ-
ment, intends to return to reside in France:

And that the said 4.2. intends to apply to the registrar at on

the day of , at the hour of in the noon, for a

certificate of a medical referee as to the nature of the incapacity of the said
A.B. resulting from the injury.

Dated this day of .
(Signed)
Applicant.
[Or,
Applicant’s Solicitor. ]
To the Registrar of the Court
and to [the employer].

Form 57s.
Order of Reference. Rule 93 (7).

In the County Court of holden at
[Heading as in Application, Form 56B.]

On the application of of (a copy of which is hereto annexed),

I hereby appoint Mr. of , one of the medical referees appointed
by the Secretary of State for the purposes of the Workmen’s Compensation
Act, 1906, to examine the said [name of workman] and to give his
certificate as to the nature of the incapacity of the said [name of workman]

resulting from the injury.

The nature of the injury in respect of which the award was made, so far

as it appears on the records of the Court, was as follows [state <t]

A copy [or copies] of the report [or reports] of the medical practitioner
[or practitioners] by whom the said has been examined is [or are]
hereto annexed. [Add, if so, Copies of the statements submitted to me by
the parties are also hereto annexed. ]

The said , who is now at , has been directed to submit himself
for examination by the referee.
Iam satisfied that the said is in a fit condition to travel for the

purpose of being examined, and he has been directed to attend on the
referee for examination at such time and place as may be fixed by the
referee.

{or The said. does not appear to be in a fit condition to travel for the
purpose of being examined. | 7

The referee is requested to forward his certificate to the Registrar at the
County Court office situate at on or before the day of .
specifying fully therein the nature of the incapacity (if any) of the said
resulting from the injury.

Dated this day of

c

Judge [or Registrar].

183
184

Workmen’s Compensation Rules, 1911.

Form 57c.

Application by French Citizen intending to return to reside in France to fix
Intervals at which Certificates of Continuance of Incapacity are to be
furnished by him. Rule 93 (10).

[Heading as in Form 56B.]
TaxE NorIcE, that I intend to apply to the registrar at on the
day of ,at the hour of in the noon, for an order
fixing the intervals at which certificates of the continuance of the incapacity
specified in the certificate of the medical referee given in this matter are to
be furnished by me on my returning to reside in France.
Dated this day of 7

(Signed)

Applicant.

To the Registrar of the Court
and to [the employer].

Form 57D.

Order as to Intervals at which Certificates of Continuance of Incapacity are to
be furnished by French Citizen residing in France. Rule 98 (10).
[Heading as in Form 563. ]

On the application of I order that certificates of the continuance of
the incapacity specified in the certificate of the medical referee given in this
matter are to be furnished by the said , who intends to return to reside
in France, at intervals of months, the first of such certificates to be
furnished on the day of

Dated this day of 19
Registrar.
To [the applicant and
the employer].
Form 59a.
Paragraph to be added to Form59. Rule 60a (5).

In the event of your death while residing out of the United Kingdom, your
representatives must, in order to obtain payment of the arrears due to you,
transmit to me at my office, situate at , a certificate of your death,
and documents showing that they are entitled to such arrears, verified by
declaration before a person having authority to administer an oath, with
a request for transmission to them of the amount of such arrears, specifying
the place where and the manner in which such amount is to be transmitted
to them.

The expression ‘‘ your representatives” means—

(a) if you leave a will, the executors of such will; or

(6) if you die intestate, the persons who are according to law entitled to

your personal estate; and payment of the arrears may be made to
such persons without the production of letters of administration.

Form 59s.

Notice to be given to Workman who is a French Citizen and intends to return to
reside in France. Rule 93 (11).

[Heading as in Award.]
Take Notice, that if you desire to have the weekly payments payable to you
under the award hereto annexed remitted to you while you are residing in
Workmen's Compensation Rules, 1911.

France, you must at intervals of three months from the date up to which
such payments have been made produce to the mayor of the commune in which
you reside the certificate of identity hereto annexed, and obtain from him
a certificate that you were alive on the day when the certificate of identity
was produced. You must also at intervals of * months from the date
up to which such payments have been made obtain from a medical practi-
tioner employed in an official capacity in the department in which you reside
acertificate that he has examined you, and that your incapacity resulting
from the injury, as specified in the certificate of the medical referee hereto
annexed, still continues.

You must then forward the certificate of the mayor, and, where a certificate
of a medical practitioner is required, such certificate (which certificate or
certificates must be authenticated by a visé of the prefecture of the depart-
ment attesting the official status of the mayor and medical practitioner
respectively), with a request for payment of the weekly payments due to you,
to the French consular authority for the district in which the Court is
situated, to be by him transmitted to me.

In the event of your death while in the receipt of weekly payments, your
representatives must, in order to obtain payment of the arrears due to you,
forward a certificate of your death and documents showing that they are
entitled to such arrears, with a request for payment of such arrears, to the
consular authority, to be by him transmitted to me.

Dated this day of
Registrar.
To A.B.
[Address and description. ]

185

* As fixed by
the Registrar.
Rule 7 (2).
Judge may
direct infant
to appear as
if he were of
full age.

Rule 124.

County Court
Rules as to
security for
costs not to

apply.

Rule 49 (1).

Where memo-
randum of
agreement
relates to
matter within
Act, Sched. 2,
par. 9, pro-
viso (d), or

1 & 2 Geo. 5,
ec, 55, 8. 11,
C) ©).

Form 36a.

Rule 49 (1a).

Inquiry by
registrar, and
proceedings
thereon.

1 & 2 Geo. 5,
c. 56, s. 11,

@) ©.

THE WORKMEN’S COMPENSATION
RULES, 1912.
Datep Juty 26, 1912.

These Rules shall come into operation on the thirtieth day of September,
one thousand nine hundred and twelve.

Parties to Arbitration before Judge or Arbitrator appointed by Judge.

1. The following paragraph shall stand as paragraph 2 of Rule 7 of the
principal Rules, viz. :—

(2.) Provided that the judge may at any time direct that an infant
shall appear either as applicant or respondent in the same manner as if he
were of full age.

Application for Arbitration.

The following Rule shall stand as Rule 12a of the principal Rules,
viz. :—

2. Order V., Rules 10 and 11, and Order XII., Rule 9, of the County
Court Rules, as to security for costs, shall not apply to proceedings under
the Act and these Rules.

Reference of Agreement presented for Registration to the Judge.

3. Rule 49 of the principal Rules is hereby amended as follows, viz. :—

(1.) Paragraph 1 is hereby annulled, and the following paragraph shall
stand in lieu thereof, viz. :—

(1.) Where a memorandum of agreement as to the redemption of a weekly
payment by a lump sum, or as tothe amount of compensation payable to a
person under any legal disability, or to dependants, or as to the amount of
compensation payable in the form of a weekly payment or of a lump sum
to a workman who is an insured person within the meaning of the National
Insurance Act, 1911, is presented for registration, there shall be left or sent
with the memorandum a separate statement according to the Form 36a in
the Appendix, of such of the particulars mentioned in that form as are
applicable to the case. Where an agreement with a workman is presented
for registration, it shall be stated in par. (a) of Part A of the said Form 36a
whether he is or is not an insured person within the meaning of said
Act.

(2.) Paragraph lais hereby annulled, and the following paragraph shall
stand in lieu thereof, viz. :—

(1a.) In any such case the registrar shall, before recording the memo-
randum, make such inquiries and obtain such information as hemay think
necessary in order to satisfy himself that the memorandum may properly be
recorded, regard being had to proviso (d) to paragraph 9 of the Second
Schedule to the Act, as applied by section 11, sub-section (1) (c), of the
National Insurance Act, 1911: and it shall be the duty of the parties to
Workmen's Compensation Rules, 1912.

the agreement to answer such inquiries and give such information
accordingly.

(3.) Paragraph 2 is hereby annulled, and the following paragraph shall
stand in lieu thereof, viz. :—

(2.) Where it appears to the registrar that the memorandum ought not to
be recorded for any reason mentioned in the said proviso, as so applied, he
shall make a report to the judge in writing, stating the information which he
has obtained and the groundson which it appears to him that the memo-
randum ought not to be recorded.

(4.) The following paragraph shall stand as paragraph 4a, viz. :—

(4a.) Where the registrar has refused to record a memorandum of agree-
ment by reason of the inadequacy of the amount of compensation agreed to
be paid in the form of a weekly payment or a lump sum to a workman who
is an insured person within the meaning of the National Insurance Act,
1911, paragraph (a) of the form referred to in the last preceding paragraph
shall be altered accordingly.

Costs.

4, The following paragraph shall stand as paragraph 2a of Rule 61 of the
principal Rules, viz. :—

(2a.) Where proceedings are taken for which no provision is made by
these Rules or by the scales of costs, reasonable costs may be allowed in
respect of such proceedings by the registrar, subject to review by the judge,
or by special order of the judge, not exceeding those which may under the
scales be allowed in respect of proceedings of a like nature.

187

Rule 49 (2).

1 & 2 Geo. 5,
c. 55, 8. 11,
() (@).

Rule 49 (4a).

1 & 2 Geo. 5,
ce, 65, 8, 11,
(1) (©).
Form 41 (@).

Rule 61 (a).
GENERAL INDEX.

—_—-.

To make this Index of wider utility the references given are to the sections
and paragraphs of the Act and its schedules. These will enable the
practitioner on turning up a reference and finding no new decision on
it to at once refer to his text-book and there find, provided it has not been
published earlier than the Michaelmas Term of 1910, the information he
requires. In some cases the rules should be also read. Though not printed

here, it is thought well to give the reference to them as a reminder they
should be looked at.

ABLE TO EARN, Sched. I. (3)
generally ; as a physical fact; neurasthenia ; neurasthenia due to inter-
vening cause; suitable employment; change in circumstances
weekly payment to be reassessed; evidence as to; offer of work ;
misconduct in relation to.
ABSENCE, UNITED KINGDOM,
failure to give notice due to, sect. 2 (1) (8)
compensation during, Sched. I. (18), rule 60

ACCIDENT, sect. 1 (1)
infectious disease not an, 2b.; nor felonious assaults, <b.
consequent results of, due to unreasonable conduct, aggravated by
disease, ib.
industrial diseases as an, sect. 8 (1) (a)

ACTION DISMISSED, sect. 1 (4)

ADMINISTRATION, LETTERS OF,
dependant’s right not derivative, sect. 13

AFFIDAVIT TO SUPPLEMENT JUDGE’S NOTES IN COURT OF
APPEAL, Sched. IT. (4)

AGREEMENT,
need not be in writing ; may be implied and may be recorded by either
party, sect. 1 (3); what workman entitled to, <b.
should be recorded, Sched. IT. (9)
refusal to record, 4b.
effect of, 1b., rules 67—69
for lump sum must be recorded, Sched. IT. (10)
with person under disability, 4d.
worked out automatically, Sched. I. (16)

ALTERNATIVE REMEDIES,
against employer, sect. 1 (2) (6)
sub-contractors, sect. 4
third parties, sect. 6
on failure of action, to have compensation assessed, sect. 1 (4)
190 General Index.

AMBIT OF EMPLOYMENT. See Arising ovr oF, sect. 1 (1)

AMBIT OF THE UNITED KINGDOM AND IRELAND,
Act limited to, sect. 1

AMENDMENT OF ANSWER, rule 17
AMOUNT OF COMPENSATION, Sched. I. (2)

ANSWER BY RESPONDENTS,
must be filed, rule 17
arbitrator’s discretion as to amendment of, ib., Sched. II. (4), Shall be
final

ANY EMPLOYMENT, distinct contract of service, sect. 1 (1)

ANY QUESTION,
some question, condition precedent.to arbitration, sect. 1 (3)
not settled by agreement, ib. ; what workman entitled to, 2.
question raised by answer, ib.
APPEAL,
arbitrator may submit case for county court judge, Sched. IT. (4)
to Court of Appeal, on question of law only, 1b.
not by way of new trial, 1.
security for costs, ib.
practice, rule 71
judge must take note, rule 34
substitute for note, Sched. IT. (4), Practice. Affidavits, etc.

APPEARANCE OF PARTIES, Sched. II. (6)

APPLICANT HAS SOUGHT OTHER REMEDIES AGAINST
employers, sect. 1 (2) (0), and sect. 1 (4); sub-contractor, sect. 4
third parties, sect. 6

APPORTIONMENT OF COMPENSATION, Sched. I. (8)
APPRENTICE, Sched. I. (1) (0), proviso (8); Sched. I. (16). See Inrants.

ARBITRATION,
disputes to be settled by, sect. 1 (3); Sched. II. (1) e¢ seg.
same question in dispute, condition precedent, sect. 1 (3)
question between employed and principal must be by, sect. 4
principal and employer must be by, ib.
third party may be by, sect. 6
employer and third party may be by, 4d.
ARBITRATION ACT NOT TO APPLY, Sched. IT. (4)
ARISING OUT OF AND IN THE COURSE OF, sect. 1 (1)

Introductory: inference from facts; questions involved ; accident when
presumed and proof of. SPHERE oF EMPLOYMENT: disobedience;
disregard of rules; act foreign to employment ; acting unreasonably ;
consideration affecting seamen ; ambit of employment ; causal rela-
tion; risk not specially incident to employment; aggravation by
disease and causal relation; drunkenness when in course of employ-
ment; unreasonable conduct ; risks not specially incident to employ-
ment; causal relation as affected by disobedience ; volunteer ;
injuries aggravated by disease ; causal relation affected by disease ;
suspension of employment, in case of seamen; facilities for coming
to or leaving work. See also IN THE COURSE OF.
General Indez. 191

ARREST OF SHIP, sect. 11

ASSESSMENT OF COMPENSATION,
in case of death, Sched. I. (1) (a)
in case of incapacity, 2d.

ASSESSORS. See Mepicat REFEREES.
ATTENDANCE OF WITNESSES, Sched. ITI. (4)

AUTHORITIES, PUBLIC,
employees within Act, sect. 18, Employer

AVERAGE WEEKLY EARNINGS, Sched. I. (2)
tips and extras; concurrent contracts; grade of employment, <b.

AWARD,
memorandum of, Sched. IT. (9)
how enforced, rules 67—69
variation of, Sched. I. (9); amending slips, rule 28 (2)
agreement obtained by fraud, not to be registered, Sched. II. (9) (d)
setting aside a., improperly obtained, rule 70
review, Sched. I. (16)

BAILEE,
driver of taxi-cab, sect. 18, Workman

BANKRUPTCY,
of employer when insured, compensation when, sect. 5
preferential claim, sect. 5
right to examine employer as to insurance, rule 35

BURDEN OF PROOF,
Scotch case, dictum, Bowen, L.J.

CAPITALISATION OF WEEKLY PAYMENTS, Sched. I. (17)
agreement must be recorded, Sched. II. (10)

CASUAL NATURE,
employment of, sect. 13

CAUSAL RELATION, sect. 1 (1), Arising out of
CERTIFICATE OF MEDICAL REFEREE, sect. 8
CHARGES, NONE ON WEEKLY PAYMENT, Sched. I. (19)
CHILD. See Inrant.

CIRCUMSCRIBED AREA OF OPPORTUNITY, Sched. I. (8), Abie to
earn

CLAIM, sect. 2
CO-ADVENTURER OR SERVANT, sect. 18, Workman

COMMITTEE AS ARBITRATOR, Sched. II. (1)
appeal from, Sched. IT. (1)
192 General Index.

COMPENSATION,
amount of, Sched. I. (1), (2) and (3)
not chargeable, Sched. I. (19)
overpaid, 1b.
claim for, sect. 2
preferential claim in bankruptcy, sect. 5
dependants’ rights to, not derivative, sect. 18, Workman
after action dismissed, sect. 1 (4)

OOMPOUNDING WEEKLY PAYMENTS, Sched. I. (17)

CONCURRENT CONTRACTS, Sched. I. (2)

CONDUCT UNREASONABLE, sect. 1 (1), Accident

CONTRACTING OUT OF WORKMEN’S COMPENSATION ACT, sect. 3.

CONTRACT OF SERVICE, sect. 18, Workman
new contract, sect. 1 (1)

OOSTS, Sched. II. (7), rule 61 et seg.

COURT FEES,
none prior to award, Sched. II. (13)

CRIME,
presumption against, Sched. II, (4)

CROWN,
concurrent contracts with, sect. 9

DEATH,
compensation in case of, Sched. I. (1)
when arising out of employment, sect. 1 (1), Arising out of
payment into Court, Sched. I. (5)
of arbitrator, Sched. II. (8)
DECLARATION OF LIABILITY OR SUSPENSORY ORDERS,
Sched. I. (3), Able to earn

DENIAL OF LIABILITY,
payment into Court with, rule 18 (10)
DEPENDANTS UNDER WORKMEN’S COMPENSATION ACT,
defined, sect. 13; determination of, Sched. I. (8)
rights not derivative, sect. 13, ‘‘ Workman,” sect. 1 (2) (6), Alternative
remedies
tnter se, Sched. I. (8)
practice as to, rule:4; rights inter se, rule 5
amount of compensation, Sched. I. (1)
partial, 1b.
DEPENDENT UPON, sect. 13
a question of fact not law, 1d.
DESERTION, sect. 18, “‘ Workman”

DISABILITY,
payment to persons under, Sched. I. (7)

DISABLE ONE WEEK, sect. 1 (2) (a)
General Index. 193

DISCOVERY,
none before award, rule 2'7

DISCRETION OF ARBITRATORS,

as to notice, sect. 2; costs, Sched. II. (7); answer, rule 17
DISEASES, INDUSTRIAL, sect. 8
DISPOSITION OF COMPENSATION,

in case of incapacity, Sched. I. (1), (2)
in case of death, #0.

DISPUTES,
some dispute condition precedent, sect. 1 (3)

DOUBLE REMEDY, NO, sect. 6 (1)
DRUNKENNESS, sect. 1 (1), Arising out of
DUTIES OF JUDGE OF COUNTY COURT, Sched. IT. (12)

EARNING CAPACITY, Sched. I. (3), Able to earn
EARNINGS, Sched. I. (2); when over £250, sect. 18, Workman
EMPLOYER, sect. 18

liability of, to principal, sect. 4

workman, sect. 1 (1)

EMPLOYMENT,

of seaman, sect. 7 and sect. 11

of a:casual nature, sect. 138, Workman

found from philanthropy, ib.

grade, Sched. I. (2)
concurrent, 40.

EVIDENCE,
miscellaneous points of, Sched. IT. (4)
statement to doctor, how far, 7b.
onus of proof, meaning of, 1b.
rule as to, ib.
hearsay evidence not relaxed, tb.
in Court of Appeal by affidavit, etc., 7d.

EXAMINATION, MEDICAL. See MepiocaL EXAMINATION.

FAMILY, MEMBER OF EMPLOYER'S, sect. 18, Member of a family

FELLOW WORKMAN,
liable as third party, sect. 6

FRAUD,
settlement obtained by, Sched. IT. (9)

FELONIOUS ASSAULT, sect. (1 (1), under Accident

GOOD RECEIPT, Sched. II. (14)

GRADE, Sched. I. (2)
W.C.A. 18
194 General Index.
HEARSAY EVIDENCE, Sched. II. (4)

IGNORANCE NO EXCUSE, sect. 2
ILLEGITIMATE CHILDREN DEPENDANTS, sect. 13, Dependants

INCAPACITY, Sched. I. (3), Able to earn
for one week, sect. 1 (2)
compensation during, Sched. I. (1)
but not necessarily co-extensive with injury, Sched. I. (17)

INDEMNITY,
employer’s right against third parties, sect. 6
where third parties fellow servants, <b.
principal’s right against employer and third party, sect. 4

INDUSTRIAL DISEASES, sect. 8
practice, rule 39

INFANTS, Sched. I. (1) (6), proviso (3)
their dependency question of fact, sect. 13, Workman
review of compensation to, Sched. I. (16)
compensation to be paid into court, Sched. I. (7)
as to agreements binding, Sched. II. (4)
settlements when infants involved, Sched. IT. (4)
to be approved by registrar, Sched. II. (9)
if widow neglects, Sched. I. (9)
INFERENCE OF FACT, sect. 1 (1), Artsing out of
INJURY BY AOCIDENT, sect. 1 (1)

INSURANCE,
when employer bankrupt, sect. 5
INTERVENING CAUSE, sect. 1 (1), Acctdent
IN THE COURSE OF, sect. 1 (1)
volunteer ; coming to or leaving work; duration and suspension of
employment in the case of seamen ; facilities for coming to or leaving
work. See also under ARISING OUT OF.
INVESTMENT AND PAYING OUT OF COURT, Sched. I. (10), (11) and
(12)
in the course of, sect. 1 (1), Arzsing out of
INVESTMENT COMPENSATION,
in case of death, Sched. I. (5)
disability, Sched. I. (7)

JUDGE'S NOTE, rule 34, Sched. IT. (4)

JURISDICTION, sect. 1, Sched. II. (11)
in case of seamen, sects. 7 and 11
cannot be enlarged by estoppel, Sched. IT. (4)

LEGAL DISABILITY,
payment into Oourt, Sched. I. (7); recording of agreements, Sched.
II. (9)
General Index. 195

LIEN,
solicitor’s lien, Sched. IT. (14), rule 66

LIGHT WORK, Sched. I.:(3), Able to earn
LIGHTNING AS CAUSE OF ACCIDENT, sect. 1 (1)
LOCAL AUTHORITY, sect. 18, Employer

LUMP SUM,
agreement for, to be registered, Sched. II. (10)
cannot be changed, Sched. I. (19)

MAINTENANCE OF INJURED SEAMAN, sect. 7

MANUAL LABOUR,
2501. exception does not apply to, sect. 18, Workman

MASTER. See ConTRACT OF SERVICE.

MEDICAL EXAMINATION, Sched. I. (4), (14), (15),
obstruction of, ¢d.
payment, suspension during obstruction, Sched. I. (20)

MEDICAL PRACTITIONERS,
as referees, sect. 10; may sit as assessors, Sched. II. (5), rule 52;
application for, rule 54
may not act if witness for either party, sect. 10
statements to, how far evidence, Sched. II. (4)

MEDICAL REFEREE,
generally, sect. 10
may act as assessor, Sched. II. (5)
may report under Sched. I. (15) and Sched. IT. (15)
report under Sched. I. (15) conclusive
report under Sched. II. (15) not conclusive
not a witness, sect. 10

MEMBER OF A FAMILY, sect. 13

MEMORANDUM,
certificate under sect. 1 (4) to have force of m
recording of, Sched. IT. (9)
effect when recorded, 2b., rules 67—69
how rectified or set aside, ¢.
when award may be varied, Sched. I. (9)

MISCOND OCT, sect. 1 (2), par. (c)
MISREPRESENTATION IN INDUSTRIAL DISEASE, sect. 8 (1) (0)

MISTAKE,
settlement in mistake, Sched. II. (9)

NAVAL AND MILITARY SERVIOES,
excluded from Act, sect. 9

NEURASTHENIA, Sched. I. (3), Able to earn
196 General Index.

NEW TRIAL,
no, Sched. IT. (4)
review not to be re-hearing but a new hearing, Sched. I. (16)

NOTIOE, sect. 2
of claim, ib.
when sub-contracting, sect. 4

NYSTAGMUS, sect. 8

OBSTRUCTING MEDICAL EXAMINATION, Sched. I. (4), (14), (15)
OFFER OF WORK, Sched. I. (3), Able to earn

ONUS OF PROOF, Sched. IT. (4)

OVERLAPPING BENEFITS, Sched. I. (3), Regard shall be had
OVERPAID COMPENSATION, Sched. I. (19)

PARTIAL INCAPACITY,
compensation during, Sched. I. (1) (0)

PARTIALLY DEPENDENT, sect. 13, Workman
compensation in case of, Sched. I. (1)

PARTICULARS OF ANSWER BY RESPONDENT, rule 17
PAYMENT ALLOWANCE OR BENEFIT, sect. 7

PAYMENT INTO COURT OF COMPENSATION,
in case of death, Sched. I. (5), rule 56
disability, Sched. I. (7), rule 57
lump sum, Sched. I. (17), rule 59

PERSONAL NEGLIGENOE,
liability for unaffected by Act, sect. 1 (2) (d)

PRACTICE,
some points of, Sched II. (4); as to new trial, +b.
settlements when infants, 7b.

PREFERENTIAL CLAIM,
in bankruptcy, sect. 5 (8)

PRESUMPTION AGAINST CRIME, Sched. IT. (4)

PRINCIPALS,
liable under sect. 4
right to be indemnified by employer, id.
third parties, sect. 6

PROCEEDINGS INDEPENDENT OF AOT, sect. 1 (2) (6
PRODUCTION OF DOCUMENTS, Sched. IT. (4)

QUESTION,
some, condition precedent to arbitration, sect. 1 (8)

QUESTION OF LAW, Sched. I. (4)
General Index. 197

REASONABLE CAUSE FOR NO NOTICE, sect. 2
RECEIPT GOOD, Sched. II. (14)

RECORD OF AGREEMENT, Sched. IT. (9)
actual agreement to be recorded, ib.
after workman’s recovery, 7b.
agreements for redemption, ¢b. ; must be recorded, Sched. II. (10)

RECRUDESCENCE OF INJURY, sect. 1 (2)
RECTIFICATION OF REGISTER, Sched. II. (9)

REDEMPTION OF WEEKLY PAYMENT, Sched. I. (17)

REFEREE. See Mepican REFEREE.
as assessor, Sched. II. (5)

REFERENCES TO MEDICAL REFERERS, rule 82
by mutual agreement, Sched. I. (15)

REGARD SHALL BE HAD, Sched. I. (3)
REGISTERED SHIP, sect. 7

REGISTRAR, COUNTY COURT,
refusal to register memorandum, Sched. IT. (7)

REMEDY, NO DOUBLE, sect. 6 (1)

REPRESENTATIVE,
legal, included as workman, sect. 18, Workman

RESPONDENTS MUST FILE ANSWER, rule 17
RETURNS AS TO COMPENSATION, sect. 10

REVIEW, Sched. I. (16)
not a re-hearing, 1b.
assessment of weekly payment on review, all circumstances to be
considered, Sched. I. (3)
of costs, rule 62
of taxation by judge of county court, rule 63

RULES OF COURT, Appendix A, Sched. IT. (12)

SOHEME FOR CONTRACTING OUT, sect. 3
SEAMEN, sect. 7

SERIOUS AND WILFUL MISCONDUCT, sect. 1 (2) (c)
SERVANT. Sce ConTRAct OF SERVICE, sect. 13, Workman

SERVICE,
contract of, 1d.

SERVICES,
how regarded in assessing compensation, Sched. I. (1), (3)
198 General Index.

SETTLEMENT,
obtained by fraud, etc., Sched. IT. (9)
dependants’ rights not derivative, sect. 18, Workman
on behalf of infants, Sched. I. (5)

SHARE FISHERMAN, sect. 7 (2)
SPHERE OF EMPLOYMENT, sect. 1 (1), Arising out of

STALE AGREEMENTS,
recording of and review, Sched. I. (16)

STRANGER, sect. 1 (1), Arising out of ; Volunteer
Tights against, sect. 6

STRIKERS,
injury by, sect. 1 (1), under Accident

SUB-CONTRACTING, sect. 4

SUICIDE,
presumption against, Sched. IT. (4)

SUITABLE EMPLOYMENT, Sched. I. (3), Able to earn
SUSPENSION OF WEEKLY PAYMENT, Sched. I. (20)
SUSPENSORY ORDERS, Sched. I. (3), Able to earn

TERMINATION OF WEEKLY PAYMENTS,
no bar to dependants’ rights, sect. 18, “‘ Workman ”
rights on recrudescence of injury, Sched. I. (16)

THIRD PARTIES,
liability of, sect. 6

TIME FOR TAKING PROCEEDINGS, sect. 2

TIPS AND EXTRAS AS EARNINGS, sect. 18, Workman; Sched. I. (8),
Able to earn

TOTAL INOAPACITY, Sched. I. (1)
TRANSFER OF MONEY IN COURT, Sched. I. (6)

VARIATION OF AWARDS IN CASE OF WIDOWS, Sched. I. (9)
VOLUNTEER, sect, 1 (1), Arising out of

WAGES IN EXCESS OF 2501., sect. 18, Workman
WANT OF CAUSAL RELATION, sect. 1 (1), Arising out of
WEEKLY AVERAGE, Sched. I. (1), (2)

WEEKLY PAYMENT,
not chargeable, Sched. I. (19)
how estimated, Sched. I. (2)
on review, Sched. I. (16)

WILFUL MISCONDUCT, sect. 1 (2) (c)
General Index. 199

WINDING-UP OF OOMPANIES,

compensation preferential claim, seot. § (3)
WORK,

able to earn, Sched. I. (3)

going to, ete., sect. 1 (1), Arising aut of
WORKMAN, sect. 13

leaving United Kingdom, Sched. I. (18)

fellow workman liable as third party, sect. 6

member of employer’s family, sect. 13, Workman

BRADBURY, AGNEW, & CO. LD., PRINTERS, LONDON AND TONBRIDGE.
 

 

     

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