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I
THE NEW LAWS
OF
EMPLOYERS' LIABILITY
IIN*
ENGLAND AND FRANCE
THEIR BEARING ON THE LAW
OF THE
PROVINCie OF QUEBEC
WITH THE TEX'I' OF THE TWO ACTS
BY
FREDERICK PARKER WALTON,
ADVOCATE OK THE SCOTTISH BAR,
<4ALE PROFESSOR OF ROMAN LAW, AM) DEAN OF THE FACULTY,
MCOILL UNIVERSITY, MONTREAL
* ■ « .
» I . . < I
> • * f -
% • »
• • • • . •
», » " • • • u • I* •
'—1 ;.i_- 3 »_JL.._
• • • • • *, •
:\i
MONTREAL, Can.
C. THEORET, PUBLISHER,
LAW BOOKSELLER IMPORTER AND BINDER,
11 and 13 St. James Street
'■ -1: 1. -
ii<
r'i^f
*,'
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e^i
Krik-rod according to act of Parliament of Canada, in tlie year one liiousand
nine liundrod, by C. Thboket. Publisher of Montreal, in the Department
of the Minister of Agriculture, Ottawa.
t^-tm*.-* *
• . • • ' I ■
r 1
' .' .> ^
PREFATORY NOTIL.
This article is, witli some additions, a lecture de-
livered to the" Junior Bar Association of Montresil.
An eclectic legal system, like that administered
here, has the defects of its qualities. One of them is
that English, French and American cases are thrown
together pell-mell for the purposes of an argument.
In the hurry of preparation it is very easy to over-
look a difference of principle which may make the
English case less applicable. I thought, therefore, that
it might be useful to state the points of contrast in
the two laws. As it stands, our law is in a curious po-
sition. A French writer, describing a similar state of
affairs, wittily says : " les arrets ne rendaient plus
qu'un platonique hommage h la th^orie classique du
Code."
Lawyers are the most conservative of mortals. They
cling with desperate tenacity to the formuUe of a past
age. Even in countries where the law is not codified,
its advance is almost imperceptible, unless the legis-
lator rudely intervenes. Under a Code the judge is
tied still more tightly to the formula. He must in-
terpret and not make the law.
63315
IV
PKEFATORY NOTE
"VUW**"""'
But it Koiiietimes happens that the world moves too
fast, or that the wheels of legislation are too slow. The
old formula has got to appear so narrow and inadequate
that the judge is as anxious as fche counsel to give it a
new interpretation. He expounds the texts as the
ancients expounded the oracles. The oracle cannot
have erred. That which has happened must have
been the thing foretold.
If men expected something ditferent it was because
they misunderstood the dark saying.
So if the Code gets too narrow it must be read in
another light. We must pour into it a new sense to
tit it to a new world. In the following pages, I have
tried to shew that thiss is our present condition as to
this branch of the law.
The new English Act and the new French Loi are
printed at the end.
TABLF. OF CONTitNTS.
Kngland and Francw liavo ioj«'ct.od tlioory that ciiiployer's
fault is ground of liability . I
Tncertainty of law ]it>rt' I
Conseriuenco of change to (Miiployers •_'
New rule in Kuropean t-ountrios ;!
Causes of chango of law in Knrojte .")
Increase of risk in modern industry Vt
Accident of which cause is unknown oi' " accidi-nt anonymc " 7
English law as to this 7
French law 7
Law of this Province s
Pr()portion of accidents due to unkn;»wn (•aus(! '.»
Statistics in Europe !>
In what cases it may l»e presumed that employer is in fault. !•
Accident caused by defects in machinery or appliances '.•
English law as to this 1(»
French law U
Defences competent by English Law 1*J
Common Employment or " Fellow Workman ' I.">
French law as to defence of " fellow workman " 14
Law of this Province 14
Contributory Negligence 1 "»
Doctrine analysed M>
French law as to contril)Utory negligence U*
Faute commune H»
No division of damages l)y Englisii law lil
French law divided damages 21
Law of this Province as to this '22
French jurisprudence prior to new law 2li
Discussion of ground of employer's lial)ility 2'i
Liability for things under his care ...:.. 24
Liability for breach of contract 25
Excused if accident due to force majeure 25
TI TABLE OF CONTEf^TS
Page
C(»ur de Cassation IjoIcIh to old theory that fault is ground of
liability 2<»
Legislation decided on in France , 27
Kxpensiveuoss of old system in Franco and Kngland 2H
Legislation decided on in Knglai.d 28
\nalysis of New English act 28
Not necessary to prove fault 29
" Serious and wilful misconduct " 29
Analysis of new French law 32
Not necessary to prove fault ',\0
(comparison of new laws with each other 35
Position of iuatters in this Province 3(>
Text of English Act of 1897 39
Text of French Lol of 1898 56
THE NEW LAWS OF EMPLOYERS' LIABILITY FOR
ACCIDENTS IN ENGLAND AND FRANCE AND
THEia BEARING ON THE LAW OF THE
PROVINCE OF QUEBEC.
It is ii very iinprutiuit nii^w of the tiincs that two of
the chief induHtrial CDiuitries of Europe li.ive lately
been reeastiiip; the law of liability for actidciits.
There is, I .suppose, no more causal connection
between the Workmen's (yompensation Act 1S!>7 and
the '• loi dii {> avril 1S!>S "' than if liOndoji and Paris
were in different i)lanets. But the problem to be
solved was fundamentally the same in both countries,
and if a closely similar .'•olution has been found, there
is at least a stronji,' presumption that it is a solution
which satisfies the popular sense of justice. Broadly'
speaking, both England and France have thrown over-
board the traditional doctrine of the law, that a work-
man could never recover danjage.^ for injuries sus-
tained through an accident, unless he could prove
that the accident was caused by the fault of his
employers.
The Roman law said quae sine culpa accidunt a nullo
prcestantur {de reg. jur. 28) and every modern system
followed this general rule.
Under the new law the English workman must be
compensated unless it is proved that the injury is
attributable to his own ''serious and wilful misconduct' '
8. 2,His Prenchbrother isonlybarred if he has "inten-
tionally pi voked the accident," s. 20 j but the Court
may diminish the damages if the accident was due to
the '*faute inexcusable " of the victim.
In this province the present law is stringent enough
upon employers. Indeed, I venture to think that they
TIIK NKW I.AWS OV
i
are often found liable only l>y Kivinj; to the eo«le an
in ei letation which it was never intended to boar.
But the hiw, as now adniinistcrfMl, has two j^jrcat
defects. It is expensive and it is uncertain. Eveiy
ju<lge has his own opinion as to the evidence neces-
sary to establish fanlt. And b< tli Judjj;es and juries
jjive dainap;('S which vary so much that an employer
who is threatened with an action can hardly cal ulate
how innch he ought to oiler, if he is willing; to com-
promise. A lawyer cannot a<lviso his client with
contidence. He cannot ssiy " I am sure you are liable,"
but only " If the case is before such and such a Judge
you will be held liable" and as to the amount of
dannigr's — that it is quit» impossible to predict.
Moreover, it is notorious that damages are frequently
laid at nineteen hundred and ninety nine dollars to
prevent appeal to the Supreme Court, because that
tribunal is known to hold stricter views as to the
evidence necessary to prove fault on the part of the
employer. The new laws in Europe fix a definite scale
of compensation according to which the particular
sum can be determined in a very simple and inex-
pensive way. This will be an immense relief to the
employer.
It is true that they make him liable in some cases
where upon the old theory no compensation would be
due. But the same result is generally reached here
by doing great violence to the old theory without
definitely rejecting it. And iu the rare case in which
it is held that there is no liability because there was
no fault, the employer has to spend in the costs of
establishing his non-liability a far larger sum than he
would have to pay under the English " Workmen's
Compensation Act." The main difference is that by
the new law the injured workman always gets com-
pensation. By the old law, at any rate here, the
KMPr.nVKUS' IIAIMIITV
lawyer alwayH j;fots cojiipensation. Occiisioniilly, an
employer by C'oiup<Mis;itint; the lawyers Huceeetls in
provinj; that the injured man ou^ht not to be eoni
pensated. I am uHsined by a Jii(ljj;e of loii^ exi)eri»Mirt'
that in his opinion employers would be no worse olV
if a law were passed here, something like the new law
iu FiU^land.
At the same time, to prevent misund<Mstan(lin^, I
desire to say that I have no intention of diseussin^'
with any fulness the expediencry of new legislation in
this Province. That depends upon soeial and econo-
mic <*onsiderations, as well as upon those whieh are
purely legal. It is outside the scope of the present
article. All that concerns us as lawyers is to study
the alterations made in Kurope by lecent lej^islation.
In the present House of Commons in England the
manufacturers are even more strongly represented
than is usually the case. Mr. Chamberlain, who was
the moving spirit in carrying the Bill through, is a
large manufacturer, and is thoroughly familiar with
the conditions of industry. If the manufacturers had
regarded the measure as seriou?<ly inimical to their
interests, a conservative government would hardly
have introduced it, and if they had done so, a House
of Lords, not suspected of tendencies to socialism,
would have given it a short shrift.
Neither England nor France is the pioneer in
this movement. Switzerland was the first country to
declare that for accidents, in certain employments, the
employer was to be liable without anyjproof of fault,
(loi fM^rale du 25 juin 1881.)
But the very elaborate German Act of 1884, (Unfall-
versicherungsgesetz, 1st Juli 1884,) has 'been the
model upon which other countries have based their
legislation. And neither England nor France, though
their Acts are fourteen years later than the German,
THE NEW LAV7S OF
1:1
have gone quite as far as Genuauy. Under the Ger-
man Act, even gross fault does not bar the workman.
He can recover full compensation unless he inten-
tionally caused the accident. He can get two thirds
instead of one half his annual earnings as in England,
if he is totally incapacitated. Medical expenses,
funeral expenses, and legal expenses in the action for
compensation are all paid for him. And, most im-
portant of all, all employers to whom the law applies,
are compelled to insure against their liability. And
the act supplies an elaborated machinery for insurance
societies in each district to be formed and managed
under the supervision of a central authority — the
Eeiehsversicherungsamt. Since then many countries
in Euroi)e have followed suit, but none, I think, going
quite so far as Germany.
Austria passed a law in 1887, Norway in 1894,
Finland in 1897, Italy and Denmark, as well as
England and France in 1898.
They differ, naturally, in detail but all abandon
the old theory that actual fault of the employer is
the basis of liability.
The present unsatisfactory state of the law here is
due to the fact that our courts are trying, without
legislation, to reach the same conclusion. They are
putting new wine into old bottles. It makes no
difference to the employer whether we say as the
French law now says : —
"You are liable without fault, merely as an em-
ployer " or say, as our courts do : —
'' There must be fault, but seeing that you are an
employer we presume you are in fault, or there would
have been no accident "
Perhaps the courts do not put it quite so bluntly,
but is not this the practical eflfec*^^ ?
The new theory that accidents will happen and that
employers' liability
5
the " wounded soldier of industry" as he has been
called, is not to be lefc to die by the road side,
because, in his attention to his master's interests, he
forgot for a moment to think of his own safety, has
made astonishing progress in Europe during the last
twenty years. (The new Acts in the different coun-
tries are printed witli valuable introductions in the
work of Dr. Zacher, Die Arbeiterversicherung im Aus-
lande, Berlin, 1898. This book contains also full in-
formation as to the state of the law with regard to
old age pensions, and insurance societies for workmen
incapacitatedby sickness.;
If the countries of Europe, divided as they are from
each other by immemorial prejudice, conspire to legis-
late in the same sense, it is surely a fact which upon
this continent deserves to be noticed. It would be safe
to say that no legislation of greater importance has
been passed during this generation. It affects the se-
curity and happiness of millions of working-men and
working- women, and of other millions of old parents,
of widows and of young children whose bread-winner
has been removed from them by a fatal accident. I
propose to consider briefly, the causes which have
brought about so important a change in the law, and,
as to England and France particularly, to examine the
law prior to the new Acts. I will conclude by ex-
plaining in outline the character of the new legisla-
tion.
As to the causes, they were much the same in Eng-
land and France. Disregarding minor differences, the
evolution of society has been upon the same general
lines in all the great manufacturing and commercial
countries. All alike have become vast noisy workshops,
full of whizzing wheels, of smoke, of strange chemical
smells, and glaring electric lights. We live in an in-
dustrial age. The old law both in England and Prance
r
li
G
THE NEW LAWS OF
I i
grew up in different surroundings when people tra-
velled in stage- coaches, and read law by candle-light.
" La grande Industrie '' was not born, and its dan-
gers were not and could not be provided for. It is a
gentlemanly and dignified old law with a great deal
about seigneurs and vassals, about domestic servants
and horses, and about the blacksmith or the carpenter
whose services may be called in, but very little about
the large workshop, and, of necessity, nothing about
the dynamo or the locomotive.
Before the days of steam, and electricity, and dyna-
mite, and lyddite, the workman could, as a general
rule, protect himself by the exercise of ordinary care.
His tools were few and simple. None of them moved
except when he handled them, and no one was in a
hurry. It is, therefore, not to be wondered at that the
law gave him no claim for damages unless some fault,
at least of omission, could be clearly brought down to
the employer. Under modern conditions millions of
workmen pass their lives in continual danger. They
have to deal at close quarters with complicated ma-
chines, to handle terrible explosives, to run the risk
of coming in contact with '' live wires " and, in a
word, to face a thousand perils. Even the strictest
care cannot always save them, A boiler may burst or
some other accident occur, the precise cause of which
can never be discovered. Hundreds of lives have been
lost by this terrible" accident anonyme,'" as it has
been well called. In many kinds of employment the
workman knows that he is exposed to mysterious and
sudden danger.
He has to take the risk. It is inherent in the
nature of the occupation. The master may have
the best and newest plant. He may spare no
expense and no vigilance in adopting every means
for protecting his men. The workman may be
KMPLOYEKS' IJABII.JTV 7
always on the watch. But all this cannot prevent
the accident. Is it fair tliat the workman should
bear this " risque protVssionel ? " His employer may
not be liegligent, bat at any rate, the work is being
carried on for his prolit. It is idle to say that the
workman is paid at a higher rate, because his work is
dangerous. The iron law of supply and deujand
compels him to take such wages as he can get in the
state of the market.
Accident Anonyme.
Xow, tirst, what was the legal position of the work-
man injured in an accident anonyme before the new
legislation % By the common law of England it was
quite settled that the workman who could not prove
negligence on the part of the employer had no claim. A
servant takes the ordinary risks of the employment.
Coekburn, C.J., put it thus in a leading case: " Morally
speaking those who employ men on dangerous work
without doing all in their power to obviate the danger,
are highly reprehensible, as I certainly think the
company were in the present instance. The workman
who depends on his employment for the bread of him-
self and his family is thus temptedjfto incur risks to
which, as a matter of humanity, he ought not to be
exposed. But, looking at the matter in a legal point of
view, if a man, for the sake of the employment, takes
it or continues in it with a knowledge of its risks, he
must trust to himself to keep clear of injury, "(Woodley
V. Metrop. District Railway, 3 877, L. R. 2 Ex. D. at
p. 389 ; and see Thomas v. Quartermaine, 1887, L. R.
(18 Q.B.D.) at p. 097.
The same doctrine has lately been again aftirmed in
France by the Cour de Cassation. An engineer on a
steamer WiJS killed by the explosion of a boiler.
8
THK NEW LAW8 OF
Examination by experts failed to discover any fault
in the coustruction of the boiler. The precise cause
of the accident remained a mystery. It was held there
was no liability. (Cass. 28 fev. 1897, S. 1808, 1-05.)
This was, of course, before the passing of the new law.
This also seems to be the law of this Province. lu
several cases it has been held by the Supreme Court,
that where the actual cause of the accident is purely
a matter of speculation the employer is not liable.
(Montreal Rolling Mills Co. v. Corcorjni 1897, 26 S. C.
R. 595; Canada Paint Co., v. Trainor, 1898, 28 S. C.
R. 352 ; Dominion Cartridge Co. v. Cairns, ib, 361 ;
Canadian Coloured Cotton Mills Co. v. Kervin, 1899,
29 S. C. R. 478.) But some Judges continue to take a
less strict view, and to presume the existence of fault.
But, surely, if the owner's liability is legally based
on fault, and fault only, it seems diflSciilt to say that
the general rule nctori incnmh t prohalin can be relaxed.
If a plaintiflf who sues on a contract iniist prove his
case, one who bases his claim on the fault of the
defendant must convince the Court that the facts
point to the existence of some fault. Now, if this be
good law, it is important to have some idea of the
proportion of accidents which are '' anonymes " and
in which damages if the rule is strictly applied,
cannot be recovered.
Before the system of compulsory insurance, which
is now in force in Germany, was introduced, tlie
government caused careful statistics for one year to
be compiled.
The Reichsversicherungsajnt published these figures
for 1887. Out of 15,970 serious accidents, involving
incapacity for wt)rk for at least three months, there
were :
KMPLOYERS' IJAKILITY 9
'M5ii due to fault of employer or If^ p, <•.
4094 " " victim or 25 "
711 <' '' both or I "
524 '' '' fellow work-
man or third party or .) "
6931 due to risks which were in-
cident to the employment
and in fact, unavoidable... or 4;> "
554 due to unknown cause or ;> "
If these figures represent at all fairly the propor-
tions in other countries, — and I see no reason why
there should be any difference — they show that under
the old rules of law the employer is only liable in about
oue-fourth of all the cases of serious injury.
Calculations made in Belgium confirm them.
M. Harze estimates there, that out of a hundred
accidents to workmen, seventy give no claim to legal
reparation, if the law requiring actual fault is strictly
applied, (see Htocquart, '* Contrat de Tra ail, " p.
101). In Switzerland it was reckoned that only
from 12 to 20 per cent, of accidents were due to fault
of the employer. I do not doubt that, as the law is
administered in this Province, the master is here held
responsible in verj^ many of the cases classed in
Germany as unavoidable accidents. This result is
reached by allowing '' fault " to be presumed from
circumstances. As judges differ widely with regard
to their liberality iu admitting such presumptions,
au element of uncertainty is thus introduced.
Defect hi Machinery or Appliances
There is, however, a large class of cases in which
either direct evidence or " weighty, precise and con-
sistent presumptions arising from the facts " — to em-
ploy the language used in the Supreme Court of
il-
!l
10
THE NEW LAWS OF
Canada, iu '' Montreal Rolling Mi LlsCo. v. (Joicoran ''
— enable the precise cause of the accident to be deter-
mined. Supposing^ as often happens, that tlie acci-
dent is proved to be due to a detect in the machinery
used. Is this in itself enough to make the employer
liable ? There are many cases in which his liability
may be clear. His machinery may be shown to be of
an antiquated and dangerous type, or the particular
jnachine, originally good, may have been worn out,
or it has been allowed to be used without reasonable
Inspection from time to time, and repairs, obviously
needed, ;have not been made. Now, in cases of this
kind, there has of late years been a pronounced ten-
dency on the part of judges in England lo hold
employers liable in circumstances in which they
would formerly have escaped. Even the .anguage
of Cockburn, C. J., which I quoted from the well-
known case of '' Woodley," would hardly be used
now without some qualification. What that learned
judge spoke of rather as a moral duty than one
which the law would enforce, viz : to do all that
can be done in reason to protect the safety of work-
men, has now come to be looked upon as an implied,
term of the contract. A master whose boilers are worn
out will not be heard to say that the workman took
the risk as part of the terms of his engagement. It
may still be good English law (apart from the new
Statute) to say that the workman takes the ordinary
risks of the employment. But by " ordinary risks ''
judges now understand such risks as are practically
inevitable, such risks as even a vigilant and prudent
employer cannot prevent. A very recent case in the
English Court of Appeal is a good illustration of this
change of judicial attitude. A tramway entered an en-
gineering workshop, but was elevated eleven feet
above the ground. The workmen in the course of their
lOIl'LOVKKS' IJAJilLTTV
11
eiDployinent had occasionally to go up to the tramway
or to come down from it to the floor of the works. No
ladder was provided, but an iron bar was fixed in the
wall by which they helped themselves up or down. A
workman in attempting- to clamber down fell backward
into a truck and Mas killed. It was held that the em-
ployer was liable, on the ground that reasonably safe
means of descent from the tramway ought to have been
provided. The language of Lord Herschell in 8mith
V. Baker (]89], App. Ca. at p. :UV2) was quoted with
approval. " It is quite clear that the contract between
employer and employed involves on the part of the
former the duty of taking reasonable care to provide
l)roi)er appliances, and to maintain them in a proper
condition, and so to carry on his operations as not to
subject those employed by him to unnecessary risk."
(Williams v. Birmingham Battery Co. 1890, 2 Q. B.
338). But when proper appliances are provided and
proper care is taken to keep them in order the master
is not liable in England (except under the new Act)
unless the workman proves that the master knew the
appliances had become unsafe, and that he — the work-
man — was ignorant of the danger. In other words, the ,
law requires proof that the defect in the macliine was
one which the master oughi to have discovered.
This case of Williams is the high watermark reach-
ed by the common law.
In France liability in respect of defects in machinery
has been carried a stage further. In a case decided
IGth June 18915, the fiicts were these. A boiler on a ship
exploded and killed an engineer. p]xperts reported
that they had found the causf . It was a defect in a
joining of the boiler. The Cour de Cassation held
that the lower court had been justified in finding the
employer liable in damages. (S. 1807, 1. 17). Here
there w.is no negligence in any ordinary sense of the
'•(
12
THE NKW LA^\^S OF
I
i :;
I ■'
term. The delect iu the boiler was occult. It was uot
showu that any inspection would have revealed it.
Accor«linj;ly the judj;nient was not based on the ar-
ticle of the Code Napoleon correspond inj^- to our article
105;>, but on article l.SSI whi(di c«)rresponds to our
1054. Tlie master was held liable not for his own
fault or the fault of any person, but for the fault of a
thing i. e., of a thing which he had under his care.
Upon this theory an eui[)loyei' who places a machioe
or a tool under the control ofawoikiuan is held to
have guaranteed that it shall not injure him owing
to some defect iu its construction, and no proof that it
was, so far as he knew, the best that money could buy,
will exonerate him. 1 will refer to this new ground of
liability later on. But the subsequent case shews that
the precise '• vice de construction '' must be proved.
It will not be presumed that because a boiler bursts it
must have been defective. (Cass. 28 fevr. I897;8irey,
181)8, 1. G5j By the method of judicial interpretation
the highest Court in France had arrived at this very
curious result. A master was liable if it could be
shewn that an accident happ-iued through some fault
even latent in the construction of his machine. But
he was not liable when it wjis impossible to say what
it was that caused the machine to go wrong. This
may have been a sound construction of the Code, but
it is very hard to justify it upon grounds of common
sense. In both cases, the workman was an innocent
victim, and in both the master was absolutely free
from blame. The new law is surely more logical in
applying the same rule to both cases.
It remains to notice two other defences, in addition
to want of proof of negligence, which were admitted
by the common law in England. These are : 1. Com-
mon employment or *' fellow workman " and 2. Con-
tributory negligence.
KMIM.OVKRS' MARFMTV
13
Common Employment
I. The lirst is Ji particular caseofthe jj:eneral rule that
a workman has contracted to take the ordinary risks
incident to the work. One ot'tliese risks is that he may
be injured by the ne^lij;ence of a lellow workman.
If so, it was a firmly established rule of law in Eng-
land that he had no redress except ajjjainst the fellow
workman. In a leading case, Lord Cairns said : '' In
the event of his (i.e. the employer's) not personally
superintending and directing the work, he is bound
to select proper and competent persons to do so, and
to furnish them with adequate materials and resources
for the work. When he has done this, he has in my
opinion, done all that he is bound to do. And if the
persons so selected are guilty of negligence, this is not
the negligence of the master •' {Wilson v. Merry.
L. R., 1 Sc. App. at p. '.V<M). His liability for the neg-
ligence of the fellow-servant is in fact similar to
that for a defective boiler. Hs must be reasonably
careful in selecting both, and must take reasonable
care to see that they work properly. Hut he does not
guarantee either. Boilers will occasionally burst
from mysterious causes, and servants will be careless.
If injury results this is not the fault of the master. It
seems rather curious that a master should be liable
for an injury done to a stranger who is present on
some lawful errand in his works; but uot liable to one
of his own workmen who is hurt by the carelessness of
his fellow. But such was the law in England. It led
to many fine distinctions as to who was a fellow-work-
man, when there were subcontracts or severel con-
tractors engaged on the same work. Many of these
difficulties were cleared up by the judgment of the
House of Lords in '' Johnson v. Lindsay," 1891, A.C.
371. The harshness of the law upon this point was
14
THK XKW r-AWH OF
mitigatcil in certain cases by the Employers' Liability
Act of ISSO. Undei- that Act, speakinj? roiighly, the
injured workman could not be met with the defence of
''fellow-workman" if the fellow-workman whose neg-
ligence caused the injury was a foreman or other su-
perior in charge of the work, or was in a position of
authority over the injured man and ordered him to do
the act which led to the accident. If, however, the
negligent workman was of the same grade ns the vic-
tim and not in any position to give orders the common
law still barred recovery. A closely similar Act was
passed in Ontario, (K. S. ()., 1897, ch. J 60).
The new Act of J897,in the <*ases to which it applies,
sweeps away tliis defence of common employment.
In France, the fact that the injury was caused by the
fault of a fellow workman of the victim does uot
excuse the master.
There is one case mentioned by Sourdat (vol. 2, s.
911) in which the " Cour Royale de Toulouse," ad-
mitted the def*?nce precisely upon the grounds on
which it is supported in England. Hut the judgment
was quashed for the reason that art. 1384 (our art.
1054) makes no such distinction, but declares gene-
rally that every person is responsible for the damage
cauvsed by the fault of persons under his control. This
view is now sustained by a uniform jurisprudence.
(See Pothier, Oblig., No. 121; Sourdat, "Traits
de la Respousabilite," 2, s. 911 ; Larombi^re, art.
1384, (9).
In this province there seems to have been some
hesitation, before codification, as to whether the
English or the French rule was to be followed. In
two cases noticed by Mr. Sharpe I see the English
doctrine was applied. But it seems now to be esta-
blished that the plea of fellow- workman is not good.
(B61anger v. Riopel, M. L. R., 3 S. C. 258, Court of
KMI'I.OVKKS' 1,1 A HI I, FT V
15
Keview ; Quepii v. rilioii l.S'.U, lM S. C. H, 482;
Robinson v. C. l\ K. liy, 1SS7. 14 S. C. R. at p. 114.)
ConfrihnfDn/ Xeffliffence.
2. The second defence of the 10nj;lish common law,
to which r wisli to refer, is tlie familiar plea of con-
tributory negligence, ft was a doctrine of the Roman
law, (Grneber, Lex Aquilia, p. 22S. )
This defence has in modern times occasioned a
great deal of legal metaphysics as to " i)roximate
cause," " principal and determining cause, " '* cause
directly contributing to the accident" '•^cama causaiin'''
and no on. The principle itself is not very obscure,
though it has often been presented in a very olK»cure
way. I will make an attempt to state it in few words.
1. The plea of contributory negligence <loes not
arise when the accident occured solely through the
negligence of the employer or of the victim.
2. There must be two distinct faults or negligences,
one on the part of the employer or of some one for
whom he is responsible, and the other on the part of
the victim.
3. Without the combination of both faults the ac-
cident would not have happened.
4. If the two causes operated at the same moment,
or in other words, if the accident was due to the
simultaneous negligence of both parties, neither of
them can recover damages.
5. If the two causes were not simultaneous in their
action, but if one was prior to the other, the question
is which of them was the last in time, or in other
words the proximate cause of the accident.
6. If the last or proximate cause was the negligence
of the plaintiff himself he cannot recover. He is
said to be barred by contributory negligence. On the
1 :
■M
16
TiiK m;w laws OI
ofcluM hand if the last or proxiinsite vhuhv whs tlni
neglijii'iico of the ilclViidiint. ho is liable. The prior
ne^lij^ence of tlie plaintifC is then disieganled. It i«
not contributory.
Tlie tloetrine niuy be Htate<l also in tliis forai :
1. If the accident was caused by the simultaneous
negligence of l)oth parties there is no liabijily.
2. If, in spite of the prior negligence of tlie defeu-
(hint, the accident would not have happened unless
the plaintilF had afterwards been negligent, there is
no liability.
;{. The defendant, on the other hand is liable, if in
spite of the prior negligence of the plaintiff, he could
have prevented the accident, by exercising reasonable
care.
Every one is bound to take reasonable care of
his own safety, and reasonable care of the safety of
his neighbours. He must even be reasonably careful
in dealing with people whose own conduct is careless.
A i)laintilf is not allowed to say " I know that I was
careless, and that my carelessness was the proximate
cause of the accident, but still the defendant was first
to blame."
But a defendant is not allowed to say '' admitting
that my negligence was the proximate cause of the
accident, yet the plaintiff was first to blame." In the
former case the common law says '' your own careless-
ness directly caused the accident, so you cannot re-
cover." In the latter it says, " it was the defendant's
carelessness which after all was the proximate cause
and he is not excused by the carelessness of the plain-
tiff, which would have caused no injury if he had been
keeping a bright look out."
The doctrine is frequently misunderstood. It never
involves the weighing of one iault against another,
to judge which is the greater, heavier or principal
i;.MIM,OVKKH 1 UIULITV
1
fail I L Tlu' question is whos^c was (h • fault which was
the proximate or inui/"«lia((' ('aiiJ«f» of tlir accident.
K. g. in tlie well-known old casti of Butterlield v.
Forrester 1S(>{>. II H-ist, (><». Mm' defendani, who had
]>een repairing- his h(»uso, had carelessly left a p(do
barring- part of tlio nnu\. The plaintilf, ildioK fa«t in
the evening-, ran into the pole, and was thrown, and
injured. It was held that he could not rei'over, as in
Hpite of the <lel'endant's no^li}j;ence. he ini^ht with
ordinary eaution have avoided the pole. In many
cases it lias heen held that a man who proceeds to
cross a crowded street or "'a foiiiiU'K'''' a railway line,
without looking- to see that the road is clear, Ciinnot
recover damages, if he is run over, though the vehicle
may have been carelessly driven,or the driver may have
failed to ring a bell or sound a whistle. (8ee e. g,
Dublin U. v. Slattery. 187S, .'J App. Ca. Jl.").")). Con-
tributory negligenc<; is, however, a plea much more
often stated than sustained. By English practice the
question of whether there was contributory negligence
is left to the Jury, and juries are, in general, inclined
to help a plaintilf. in such cases, over a few legal
obstacles.
I am uot concerned to justify the equity of tiie rule
as to contributory negligeuce. There i& a great deal to
be said for the proposition that a man is not entitled
to create a danger, and that if he does so and harm
results he must l)e liable. But the English law dis-
tinguishes between causing a danger and causing an
injury. (See Metropolitan Ky., v. Jackson 3 App.
Ca.. 193 ; Dublin Ry., v. Slattery, 1878, 3 App, Ca.,
1166 ; Davy v. London & S. W. Ry. Co., 1883, 12 Q.
B. D.,76).
Of course the doctrine must be understood and ap-
plied with due reason and regard to the particular
circumstances.
18
THE NEW LAWS OF
The law only expects a riuin to exliiMt ordinary Ciire
in jietting out of the way of ji threatened ealauiity. ]f
my negligence is so great that anothei, not unreason
ally, loses his head and do^-s something which it
would liave been wiser not to do, and so is hurt, I am
not perjuilted to >iiy : " People must not give w.\y to
panic, if you had sliewn perlect ' sang-froid ' you
would not have been injured." So, if a horse runs away
from some defect in the reins, or the diiver, and a
passenger jumps out, and breaks his leg, lie juay re
cover if upon
the facts it seems that his fright was
not out of all })roi)ortion to liie danger. Lord
Ellenborouirh said :
"If 1 place a man in such a
sitr.atiou that; he must ail ,)pl a perilous alternative, I
am respoDsible for the consequences. "' (Jones v.
Boyee. JNHJ, 1 Starkie, 49;i).
Or, if a bale of wool is falling from a window, and I
take a step which, iiistead of clearing it, brings me
un<ler the bale, I am not barred, for absolute control
of one's nerves, is not to be looked for at sucJi a mo
meat. (Woolley v. Scovell, .'> .Manning & K.> land, 105).
Further a child is only expected to think as a child,
and will .not be disentitled to recover beeause an
older person might hav<; got out of the way of tli"
danger. An employer must take special care of em
ployces wliose youth is likely to make them tliought
less, (Bartonshill Coal Co. v. McGuire, 3 Maeqneen,
311). In a recent case, tlie Court of Appeal, in Eng
land, hel(i that a girl o( aaveiit can, which Lord lusher
describes as a "tender age,*' was not bai-red by eontii-
butory negligence when she had neglected to put on a
mask i)rovided lor the employers in a soda-water ma
nufactory and way injured by a bottle whicli burst.
(Crocker v. IJanks, 4 'fitnes, L. R., ,324).
But apart from such specialties the common law in
England, and also in America, liolds that a plaintifl"
KMPr.OYKKS' LIAKILITY
19
cannot recover if the proximate cause of the accident
was his own carelessness. The leading case now is
The Berniua, 18SS, i;} \]^\). Oa., 1. The 10inph»yers"
Liability Act of 18S0, <li(l not alter the law upon this
point.
FiHi'e CO lit in nil f.
The expression "■ contributory nculij^ence " is not
a happy one. It sn^ii,LC<'sls. what is (he fact, I hat two
faults contril)nte tt* cause the accident, lint it does
not sMirp;i'st, what is niDi*/ important , t hat th<! Kn^lish
law in such cases pays rc<i;ard only to one of llic two
faults, viz the later
Contributory uegiiintMice,'' i
n
fact, alwiiys means '' negligence, on the part of the
plaintiff, which was the proximate cause of the acci-
dent aii'i therefore bais his right to recover
When
the accident is due to the simultaneous negligence of
both, — as when A. crosses the track without looking
up and <iown the line, and B. fails to ring the bell, —
the negligence of A. and the negligence of B. are
equally proximate causes of the accident. By iMiglish
law th<i two faults cancel each other, there is no
liitbility, and it is natural enough to say that if
either A. or B. brought an action he could be met by
the defence of *' contributory negligence.'' But when
the two faults are not concurrent, the moment it is
established that tlie negligence of the plaintilY was
^' contributory " tlien the earlier negligence of the
defendant is thrown entirely out of consideration. It
was not the proximate cause.
T have never been able to understand the justice of
this. In many cases it seems to me, by sustaining a.
plea of contributory negligence equity is sacrificed to
a false show of logic. The very name •' contributory "
shows that two faults were involved. Why then are
we to take account of one, and to disregard the other 1
HI
'
!r
•JO
TUK MOW LAAVS OF
Si'
The neglijj^ence of the defendant was as truly " con-
tiibutory '' in eomnion sense if not in lnw, as was tliat
of the plaintiff. If A. is lyitijr drunk on the road, and
11. carelessly drives over him xV's negligence is not
" contributory " because there wouhi have been no
accident if B. had not been subse(ju(^ntly negligent.
This is the law, and B. must pny damages. But why
does not the English law allow B. to say " my care-
less driving would have led to no accident if you had
been free from blame."
Or if T wrongfully put an obstruction across the
highway, as in Bat/erfidd v. Forreslrr why should I
get off scot-free because by taking care the plaintiff'
might have avoided it. 1 am certainly to blame, and
but for my Ian It there would have been no accident.
Why then should I bear no part of the loss ?
A jury in these cases is inclined to take the law
into its own hands and to reduce the damages. But
the direction of the judge may be too strong for them.
In law whenever the jury find that there was contri
butory negligence, the plaintiff' cannot recover anj
damages. The distinction between the English and
the French law upon this point is well brought out
in the language of Pollock, 0. B. "A person who
is guilty of negligence, and thereby produces mischief
to another, has no right to say : ' Part of that mischief
would not have arisen if you yourself had not been
guilty of some negligence.' I think that where the
negligence of the party injured did not, in any degree,
contribute to the immediate cause of the accident,
such negligence ought not to be set uj) as an answer
to the action, and certainly I am not aware that,
according to any decision which has lever occurred,
the jury are to take the consequences and divide
them in proportion accordiug to the negligence of the
one or the other party." (Greenland v. Chaplin, 1850,
5 Ex. 243).
I-: M V r,o V I : ii s ' l i a li 1 1 . i r y
21
Tn Scotlanil the Eng;li.sh rule is followed, iiud a
recent case illustrates its injustice. A guest in a
hotel, (luring the night opened a door which he mis
took for the door of a lavatory. It opened into the
elevator, and he fell and was injured. The Jury
thought there was negligence on the plaintiff's part
in stepping forward in the daik, and there was no
doubt that this negligence was the proximate cause
of the accident. But they thought the hotel keeper
had also been negligent in not haviug the door into
the elevator more carefully guarded and distinguished.
They brought in a verdict " Find for the plaintiff,
but in respect of there being contributory negligence
on the part of the plaintiff, assess the damages at
£300." It was held that there must be a new trial on
the ground that the jury were not entitled after
finding contributory negligence proved to give any
damages to the plaintiff. (Florence v. Mann, 1800,
Court of Session Oases, 4th Series, vol. IS, p. 247).
I do not <Ioubt that the law was correctly applied,
but I cannot help thinkiug that the verdict, though
bad In law, was both just and sensible.
In regard to contributory negligence the Fren< li
law, takes a more lenient view. It is now generally
admitted by French Courts that where both plaintitl'
and defendant are shown to have been in fault, —
where there is /ante commune the Court must t'y
to apportion the damages. The plaintiff ought not to
get full damages, seeing he was partly to blame,
but he ought to get some damages seeing he was not
wholly to blame. (Cass., 10th Nov. 1884, D. 85,1.
4:j.i ; Cass. 29th March 1886, D. 87, 1. 480, Sourdat, 1.
s. 062 ; Baudry-Lacantinerie, " Precis," 2. s. lo48.)
The (juestion as to whose fault was the proximate
cause lias not here the same importance as in the l\ng
ii>h theoi V. The Court considers rather which is the
;iP
ril
■'■i
22
THK NEW LAWS OF
1
. I
!i
ii^
i ;
l)rinciprtl muse, or whose nej;Iigei»ce is the jijieater,
and adjusts the (hiinaj^es aeeordiiijrly. If the parties
seem to have been about equally t(> bhiine tlie loss
is divided. In many Freneii Courts tlie practice has
become common to give the phiintiffin such cases half
the damages to which he would otherwise have been
entitled. '' He has sufferel to the extent of ij^JOOO,
but he was himself to blame, give him $500." If,
however, his fault was very gross and that of the defen-
dant very slight, damages may be lefused altogether,
(Larombiere, art. J 382, No. 29).
The rule of dividing the loss in such a way if pos-
sible as that each of the tw.» negligent patties shall
pay for that part of it w4iich is due to his fault is
applied in English law to the liability of two ship-
owners whose vessels come into collision b,\ the fault
of both. 8ir F. Pollock says it is '' a rule of thumb "
(Torts. 2nd ed.. p. -112), and so it may be But, I
confess, I prefer it to the rule of making one fault
cancel another. In the Berniua, (13 Apj>. Ca, 1)
Lindley, L. J., declared, he could not see why the
admitalty i)rinciple as to injuries to ships, migh: not
witii eijuai justice be applied to cases of injuries to
persons.
In this I*rovince the French rule as to foul e commune
entitling the Court to divide the daniages was spoken
of with api)roval by Dorion, C. J., in C. P. R. Co. v.
Cadieux, 1887, M. L. R.. 3 Q. B. 315. That learned
judge said, however, that up to that time it had not
been adopted in the Piovince of Quebec. Since then
it has been applied in several cases (Clement v.
Rousseau, K. J. Q., 1 C. 8. 203 ; Carbonneau v. Lain6,
R. J. Q,., ."» C. S. IUq ; Lapierre v. Donnelly, M. L. R.,
7 S. C. 197). I am not in a pt sition to say whether it
is now regarded as settled law. , , - ...,.,
So far as I can discover the point has not yet been
EMPI.OYICRS' LIABILITY
23
fully discussed in the Supreme Court. The difference
between the French view and the Enjjjlish was founded
upon in the very recent case of Roberts v. Hawkins,
(1898, 29 S. C. K. 218). But in the result the Court
found that there was in that case no negligence on the
part of tlie defendants to which the neglijxence ol the
plaintiff might have been contributory. The accident
was caused solely by the plaintiff's own fault.
•
Recent French JurinprmJence.
I have now stated, as fairly as I can in the spa^e at
my disposal, the English law prior to 1898, nnd J liave
indicated two important points, viz. : the defences of
" fellow workman "' and " contributory negligtnice,"
as to both of which the French law was more
favourable to the workman, f now wish to notice
briefly a somewhat curious development of the French
law of quite recent dale. As the hardship of allowing
the risque professioniiel to fall »h\ the workman came
to press more and more upon the popnhir conscience
it began to be suggested by ingenious law^'crs that pos-
sibly the Civil Code was more humane than had
hitherto been thought. Was it clear that the work-
man must prove that his employer had been in fault t
Might not the law presume fault without proof? or
might there not be discovered in the code some other
provision under which the <^niployer might be found
liable, though his freedom from fault was as clear as
the noonday sun 1
It is proverbi.il in lOngland that " hard cases make
bad law." Now, speaking with all respect for those
who differ, I think that a better illustration of the
proverb could hardly be found than in the recent
attempts made in France and Belgium to circumvent
the code upon the question of employers' liability.
- ii
24
THK ^•E^\ LAWS OF
Given a pcor workiuau, ji rich emi)loyer, (perhaps a
large railway company), an ingenious advocate, and
a huniane judge anxious to give a reparation which he
feels that natural justice demands, and, as all lawyers
will see, a good deal may be done with a code. In Bel-
gium, the question onvriere; has been for years very
acute, and it is, therefore, not surpiising that the main
attack upon the ohl law has been directed from that
quarter.
The articles 1.S82, i;{8G of the Code Civil Beige are
identical with those of the Code Napoleon, and, with
one or two difl'erences immaterial for the present pur-
pose, identical also with our articles J05,'>, 1055. One
of the chief advocates of the new view was M. Sainc-
telette, a former minister of state in Belgium. (Sainc-
telette, De hi responsahilite tt de la tjarantie, Paris
et BruxelleH, 1.^84, see esp. pp. 129 seq.) Other sup-
porters are Laurent (vol. 20, Xo. 639) and Marc
Sauzet, Revue critique de legislation e' de jurisprudence,
1888.
The arguments take two forms
1. Eetaining the theory of all the old writers, and
of the jurisprudence, that the liability of the employer
rests on delict or quasi-delict, it is urged that, if an
accident occurs, there is a presumption that the master
is in fault, and he is liable in damages unless he proves
that the accident was due to an unavoidable cause.
The ordinary rules of evidence are to be inverted to
meet the " hard case" of the workman, and the onus
is to be thrown on the defendant. The argument is
supported by the provisions of the Code, that one is
responsible for the things which he has under hi-^
care~soM« m garde,— 'a,\iA by theanalogy of the liability,
incurred by the owner of an animal which hurts any-
one, or of a building which falls and causes loss to a
third person.
EMPLUVKKS' IJAIIILITY
M. 8iiinc'telette himself presented this contention
before the 0(mr de Cassation de Belgique, but did
not succeed in convincing the court. They lield that
the owner of an animal was liable not as owner but as
negligent. That this was so in the case of the owner
of the building was shewn by the fact that he was only
liable when the ruin happened from want of repairs,
or from original defect in its construction. [Journal
des TrUmnaiix, 1S89, p. 411).
2. The soundness of the old law is challenged upon
an entirely diflerent ground, Lraving out of sight
altogether the »^uestion of negligence — faute dilir-
tuelle — may not the master be held liable for breach
of contract — /ante contravtaeUe f
This seems slill more adventurous. It is seriously
maintained that in every contract of employment there
is an implied term that the employer shall return the
workman safe and sound to the bosom of his family.
If he does not fulfil this imx>lit^d obligation he is in
breach of contract. This view has been adopted in
Luxembourg by the Cour Saperieure. (S. 1885, 4, 25).
That I'ourt has held that under the contract the
employer guarantees the workman against accidents
from machinery. II doit repondre de aa machine vis-
a-vis de ses ouvriers. The master must pay for the
accident anonyme. He can only escape by proving
that the accident was due either to the fault of the
workman or to force majeure. And force majeure is
not cas fortuit. Force majeure must be something
quite unconnected with the machine or the work, not
part of the risque professionnel. E. g. if the work-
man is swallowed up by an earthquake, or devoured
by a bear, the employer is not held to have contracted
to take such a risk for it is not incident to the work.
The French Courts, at least the Cour de Cassation,
and the Courts of Appeal, in spite of many attacks and
I
■I
}i
2(>
THE NKW LAWS OF
\
of a tori'«*iit()f ii,rp;uiii(Hits from Mie onniinentators, stood
tiiin ill iipplyinfij the old doctrine tliiit there was no
lialiility unless tlie niiister was in fault and unless the
workman provi'd it. !\Ions. p]sni<*in in two admirable
notes 10 the cases in S. 1S!>7, 1.1 7 and S. 1898, 105,
sums up the rules aflhered to l»y the ('our de Can^a-
tiov, thus :
" Faiitf (hi pafroii, reufxnisahilife dn. patron.
" b\(ii1c dc I'oiirriei', pas de rcspojisahilife du patron.
"• Arcidciif anonjime, i. c. — .si roiirricr ve peuf pronrrr
'' aiiciine fante de/inic du patron, — pax de responsahilite
'' dii patron.'''
The I'nithest, jtoint they reached, was in the case
already cited where they held the employer liable as
for fault where the workni;!!! cnnld point to a definite
riee de eoxstrnrtio)! of a machine as the cause of
the accident. The ai'X'i'neiit that the respunsability
for the fault (d' a lliiai;' mider a man's char|jj(i — -so^s
m yarde applies lo a. machine used in carryin<i' on a
weik, would be more specious if any support could
be found for ir in the (dd law. Unfoilunalely this is
not the case.
Attentive leadinj;' of the articles of the Code, in the
light of su(h writers as Biinrjou, (liv. (>, tit. 3, chs. (>
ami 7) and Domat, f liv. 2, tit. S. ss. 2 and \\) makes
any such contention very diflicult. A ground of obli-
gation so vastly important could hardly have escaped
the notice of Pothier. Yet there is nothing in his
work lo lend any countenance to ir. Moreover, there
is absolutely no ground to suppose that the eodifiers
meant to introduce any new law. Mons. EsmeiQ
argues, and his argument convinces me, that the old
law never contemplated a man being hehi liable for a
X)ure accident. Liability in the case of the vicious
animal or the ruinous building is natural enough.
The owner of an animal can restrain it, or if this ii*
KMI'LOYKKS' J.FABILITV
iiuposaihlo, he vau kill it. He hits no rijjlit to allow it
to cause <lauj4er or damage to Ins neifihbour. As to the
house the owner luis hiiusHirtt) blame if it falls from
want of lepairs. Dcfeet of eonstruction is nioie ditli-
eiilt, but even here the owner ()f a house has }x*'ue-
lally some warning, and some ((pport unity of ])reven-
ting tlie house tumbling about his own and his tieigh-
bour's ears. At most these are excejjtional eases
foun<led on ancient ])ractice, and on the Roman law.
It is surely a ratlier violent use of analogy to apply
the same rule to an employer's liability for a machine,
carefully bought, and carefully tende<l. whi(di sud-
denly bursts from a defect which no vigilance could
have prevented. In one year in Germany (»,J».'il
accidetits to workmen occurreil from causes \vhi<'h
were inevitable, [s it reasonable t(» extend to them
the princii)le applied by the ('ode to the rare case of
the ruinous house ?
After years of (liscussion the best fauthoiities in
France remained uncoiiviticed that the Code could
stand the strain to which it was being subjected and
])ublic opinion was satislied that it was saler and
better to proceed by way of legislation. The history
of the new law and the numerous vicissitudes through
which it i)assed in its various stages, are given briefly,
but clearly, in 8irey, Lo/.s Aiinoieen. LS*M), (pp. Ttil,
seq.) Of the actual working of the old law in France
I cannot speak from exi)erience. Judging from the
literature it seems to have been bad enough. Expen-
sive and uncertain,it\vasa night-mare to the employer,
without beiug, by any means, a sure protection to the
workman. As regards the English system I can speak
from some years of observation. It always seemed to
me to combine, in a marvellous degree, the maximum
of cost with the minimum of gain to anyone except the
lawyers. Their interest is, of course, important, but
I
f
i
\\
2S
TMK NKW LAWS (>F
it is hiinUy the piiiuaiy iiiteiost to coiisider. Xow. ii.
Kiij^lrHicl, the employer was not spared. Whctlier 1ih
won or lost, he lind heavy costs to |)ay. His recourse
against the phiintift' when In* won was, naturally,
worthless. As the Scotch proverb says : -'Vou cannot
take the breeks from a i[i}jjhlan<lei- '' and you cannor.
get C'JOOO of costs from a poor workman. Veiy often
an employer, knowing this, c()mprv)inised a threat-
ened action, though he believed he had a good legal
defence. In othei- casi^s employers who were insuied
against claims were compelled for the sake of pre-
serving Iheir recourse against the insurance company
to dispute claims which they would otlierwise have
admitte<l to be Just.
On tlie other liand, the workman Imd to face a long
and uncertain litigation and in the very numerous cases
where there was some fault on his part he was not en-
titled to recover, l'>en when he succeeded in break-
ing down every defence he often found thi^^ a large
part of the damages recovered went into the pocket
of Itis lawyer as extrajudicial expenses. In recovering
a sum of perhaps CoOO an expense of iVom CI, 000 to
£2.000 was often incurred. The employer has to pay
— let us say — C2,;i00, the workman perhaps gets ,C20u,
and C2, TOO is swallowed up in lawyers' fees, and other
expenses. Such a system of remedy in accident-
cases was, I really think, hardly wortli transplarjting
to the American Continent, and that a country like
the United States, where democracy is said to be
triumphant, sliould remain contented with it alto-
gether baffles my comprehension.
New English Act.
I now proceed to consider the new legislation. The
new Act in England came into operation on 1st July,
i;MI'f,nVKUS' MAIUII TV
2})
1S9S. It is citod Jis tlMi \\'(»i UiiKMi's CoiiiixMisatioii Act,
1S*>7 r()() and HI Vict. c. .{7. i Tiioiij-h pussed on tho
'Itli AujJTUst, l.S!)7, its connnciiccinont was postponed
until tlic hst July following', in order to jjivc time to
employers to elt'ect insm'!inc<^s, and make such otiier
arrangements as mijjhl seem necessary.
1. The act is not universal. It is lim ted to certain
trades. It appli(?s to rail way men, factory hands,
miners, (juarrymen, men employed in " engiiieei'inj;
work '' and, with some limitations, to men employed
in building- operations. " Factory." however, is a wide
word ; it means any ])iemises where toi' the pnipose
of gain a nianufactnrin}:; process is cariied on with
the assistance of steam, water, or other mechanical
power, and in addition, eighteen specilied kinds of
works, whether medianical power is used or not. It
is estimated tliat tlie Act applies to between six and
seven millions of workers. It leaves out sailors,
agricultural labourers, domestic servants and work-
ers in many small li mdicrafts.
2. The workman can recover if the injury was
caused by an accident arising out of and in the course
of the employment. He has not to prove any I'.iult
of the employer or of the plant.
But he is barred if it is proved that the injury is
attributable to his own " serious and wilful mis-
conduct." As to this, it is to be noted (a) that the
onus of proving the misconduct lies on the
employer, (b) that it must be misconduct, not merely
negligence, and (c) that it must be wilful. I suppose
a man who went on to a roof to repair it when he
was in a state of intoxication, or a man who struck a
match in a gunpowder factory, contrary to the rules,
would be regarded as guilty of such misconduct as is
here intended. But the more common case of in-
attention or carelessness even of a gross character
!,
1'
30
Tin: NI.W LAWS OK
1^1
M'(Hil(l iH»t, 1)0 suilicuMit. lOvt'M .s(., tlio Fr«'iicli law is
mon; liberal arwl lln' (Jt'iiiiMii law ^m)(*m further than
any. In France, the w<nkn)iin cjiii retover unions hr
has i)ih)itiontnllemtiif jtKtrotjiu' Pacritlcnt. whicli wonhi
he the aet of a lunatic or a suicide. 'I lu' Court may
(linnnishthc (huna^ics, but cannul alldjict her refuse
to ^ivi> (laiJia;i<'S in I lie c:is< when I he accident is due
ro the t'oii/i' liicxciinthlc <if the workman, (ar(. 20).
In (Jerniany no (luestimi of the woikman's fault arises.
He can always recovc-r the lull amount unless he has
purposely caused flit- accidciil. (den Hetriebsnnfiill
vor.-iirz!i( ii hci l)tij<'liihi i . .•■. f), ss. 7).
;>. ('out I •1(1 .11^' tuu l;■^ willy allowed by the Work-
men's ('"impensalidii Acl subject to vciy striny;ent con-
(lit ions.
W'lit'ii theie is a sclnine (»f insui'ance in force, which,
ill the oi>inion «)f th<^ Kt'*i;islrar of Friendly Societies is
not less fiivtiniiibb' to the workmen than the iHoviyions
of 111*' Act, the employer may contract with the men
that thes(diemcso approvetl of sliall be substituted
for 111" Act in their case. This was inserted because
many companies and large employers had benelit-
s(d»emes in operation, and large funds invested. It
makes the Hegisti-ar mast(;rof thesituation, and secures
to the workman that he cannot be deprived of the
l)onetit (d" the Act unless he gets something at least
as good in <'xchange.
4. If the employer has insured himself against his
liability for accident-claims, and he afterwards be-
comes bankrui)t, the workman has a first charge upon
the sum payable !)y the insurers. This is a very
important protection, as it can hardly be doubted that
most employers, will now need to provide against
their new liabilities by insurance.
The persons entitled to compensation are work-
men of all grades, including overseers and clerks, or
KM I'
VI:KS 1,1 a mi MTV
31
in ciisii ol" I'lUiil lU'cidiMits, tlifir (loptni(iiU)ts. •' Depen-
dants," i.s used, ho\v<'ver, in a rather restricted sense.
It nienm si tdi ineniliers of the worku'ian's family
specified ir liOrd ('inupbell's Act ( I<\ital Accidents
Act, IHH)), as were wlhdly or in p;irt dependant o\\
th(! earnings of the worKnian at his death. PcM-uniary
loss must he sulVercd, e. ^. a fat her, whose son has l)e«Mi
killed, hits no claim, unless as a niatlcf of fju t, he was
being supported wholly or partly by his son.
5. The compensation is in the form of a lump sum
in cas«^ of death, or a weidcly payment in case of total
or partial incapacity loi' woik. Thf sum payable in
fatal cases can never exceed C.»00. li will ;4enerally
be les>, for it cannot exceed the workma(»'.> earniu,i;s
for the previous three years. Hut if thi; earnin.i;s were
less than C150, thatsum can neverth^dess be lecoverel.
The dcix'udants of a skilh'd w(»rkman whon* wajjjes
were >!«20 a week, as they can never get moie than
$1500, will only get a sum e(iual to about the earnings
for a year and a half.
When tiieaccidcnt causes total or partial incapacity,
tlie comii^Musation is a weekly payment not exceeding
50 per cent, of the workman's average earnings, and ii;
uo case more tlian one pound a week. The employer
may, after .six months, redeem the weekly payments
by a lump sum fixed by arbitration. I note, in i)assing.
that both the French and Gernnin laws are moie
liberal in the case of a w«»rkman pertuanently incapa-
citated for any work. In that very sad, but unfor-
tunately, not veiy uncommon case, the Fren(di or
German workman is entitle i to an annuity equal to
two thirds of his fi-rmer earnings.
6. Procedure. Failing agreement as to the liability to
compensate, or the amount of compensation, the ques-
tion is to besettled by arbitration. This means that if a
committee representing the employer and the men
Li
r
. I
TJfJ-: NEW I.AWS OF
i.
i'f-
exists, (as is the case iu some large works), the com-
mittee may decide, if the parties both agree to this
course. Otherwise, they may choose au arbitrator,
and, failing agreement, the comity court judge is to
be arbitrator. In practice, the county-court judge
will generally be the arbitrator, because he will have
to do the work as part of his ordinary duties, whereas
an arbitrator mutually chosen would have to be
paid. The i)rocedure is to be simple and summary,
and there is no appeal on matters of fact.
Upon matter of law there is an appeal.
7. The remedies open to a workman before the Act
are not taken away. He may still sue the employer
at common law, but the master's liability is alterna-
tive and no*-, additional. If the workman choose to
proceed under the Act, and lie recovers compensation,
he cannot afterwards br'ng nuy other claim. In cases
where the fault is clear and the loss great, it may
still be au advantage for the workman to proceed at
common law, for then he can recover damages to any
amount which a sympathetic jury may give, iust :ad
of being limited to ^^300.
Neic French Law.
I now turn to the French law.
It is the outcome of twenty years discussion. ISome
statistics collected by the 4th Civil Chamber in Paris
will give a better idea of the unsatisfactory working
of the old law, than piges of description. They cal-
culated that of 349 actions for compensation on account
of accident Vetween 1878 and 1881, only 152 resulted
In favour of the plaintiff. Only 51 were decided
withiu a year, 159 took between one and two years, 73
between two and three years, 3(> more than three
years. One action dragged (►ver seven years.
employers' liability
33
The first proposal was the bill of Mons. Martin
Nadaud, in 1880, to invert the burden of proof. The
employer was to be liable unless he proved that the
accident was due to the fault of the victim. This,
however, never passed, and gradually opinion came
round in favour of the theory of risque profesiiionnely
i. e., that, apart from all considerations of fault, com-
pensation for injuries should be, as it were, a first
charge upon the proiits of the employment.
1. The Act as finally passed, applies to all indus-
trial employments, building, mining and the like,
and every exploitation in which machinery driven
by artificial power is used. It does not apply to sailors,
but they are provided for by a separate law of 21 april
1898. All contracts against the Act are null.
2. Workmen to whom the Act applies have now no
claim except under the Act. The Act does not apply
in full to workmen whose annual earnings exceed 2,400
francs or $480. In computing the compensation due to
them the excess above $480 is only reckoned at one-
fourth of its actual amount : Thus, a workman who gets
a salary of 4000 francs is for the purposes of the Act
treated as getting only 2,800 i. e. 2,400 and one fourth
of l.GOO. But as to this it may be agreed that the
workman's whole salary shall form the basis of cal-
culation. Such an agreement is not null, as contrary
to the Act.
3. The employer is liable for medical expenses, and
for funeral expenses, but the last only up to 100 francs. ,
4. Gratuitous legal aid is given by the State (assis-
tance judiciaire) .
5. In case of fatal accident the compensation is not
a Inmp sum as in England. It is a rente viagere.
The widow is entitled to 20 per cent, of the annual
earnings of the husbanil. If she marries again she
gets a lump sum of three years' annuity, and it then
ceases.
t \
34
THE NEW J.AWH OF
Children legitimate or illegitimate get a rente up to
to the age of 1(5.
One child gets 15 per cent., two get 25 per cent.,
three get 35 per cent, and lor four or more 40 per
cent, is payable.
A mother and four children will thus getaiiogether
60 per cent, of the father's earnings. And if the mother
is dead the rente for the children is higher. They then
get 20 per cent, each, but not more than 60 per cent.
in all.
Failing widow and children, ascendants, or descen-
dants more remote than children, are entitled each of
them to 10 per cent, of the earnings of the victim,
but so that not more than 80 per cent, t^hall be paid
in all.
6. The family of a foreign workman have no claim
to compensation if they were not living in French
territory at the time of the accident.
The German law is the same. The English law upon
this point is more generous, and makes no distinction
between foreigners and British subjects It is to be
hoped that the exclusion of foreigners from a claim
expressly based on grounds of justice and humanity
will not long continue in force.
7. A workman totally and permanently incapacit
ated from work is to get u rente equal to two-thirds of
his earnings.
In the case of partial and permanent incapacity he
gets an annuity equal to half the reduction in his
earnings.
In the ease of temporary incapacity he gets half the
amount of his earnings at the time of the accident.
] have already spoken as to the efl'ect of fault in
diminishing his claim.
8. The workman's claim in the case of permanent
incapacity, and the claim of his representatives in fatal
EMPLOYEKy" LIABILITY
35
cases is absolutely assured to him. If he canuot
recover it from his employer, or from an insurance
company in which hi.s employer has insured, the
annuity will he paid by the state. A special guarantee
fund is established for this purpose, supported by a
tax upon employers, and the state through the cakse
nati'jnalehm a recourse againstthe particular employer
who his failed to pay the annuities for which he was
liable.
Space does not allow me to compare the two laws
with each other more fully. It is evident that in two
important points the French, law is more favourable
to the workman. In the first place the French work
man is absolutely secure of getting his annuity. An
English workman might be defeated of his compensa-
tion if the employer were bankrupt and uninsured.
No doubt the larger employers at least will generally
be insured. But this is not compulsory; and the state
guarantee will give the French workman a security
vv^hich his English ' rother has not.
. Second, payment by rente, or annuity,is I think much
better for the workman than payment by a lump sum.
A ijoor family suddenly receiving a lump sum will be
exposed to many risks, and it is to be feared that the
sum recovered in too many cases will be managed in an
improvident way. In such matters, however, it is le
premier pas qui coiite. The establishment of the broad
principle that workmen are to be indemnified for the
risks arising out of their occupation, even though the
employer was not to blame, is a step of infinite im
porta nee.
It is generally admitted that the English Act has
not diminished litigation so much as was hoped. The
number of disputed cases so far has been very great.
That, however, arises merely from defective draught
manship, It ought not to be impossible to indicate
30
THE NEW LAWS OF
' I IP'<
H^
in unanibigaouB terms to what eaiployments the Act
should apply. Many of the English cases turn upon
this point. And the expression '• serious and wilful
misconduct '' has caused much diflSculty.
If we compare the state of matters in this Province,
I think it will hardly be disputed that the law is just
LOW in a somewhat unsettled and unsatisfactory con-
dition. The opinions of the judges differ considerably
as to what they will regard as sufficient evidence of
fault. Some go further even than the Cour de Cassation,
and do not require the workman to specify and prove
any precise vice de construction when the accident
is caused by machinery. It is enough that it was the
master's machine. If it goes wrong, there must be some
fault in it. Moreover, there is a conviction, no doubt
justitied by experience, that the Supreme Oourt takes
a more rigorous view than the judges of the lower
Court. Accordingly damages are frequently laid at
nineteen hundred and ninety nine dollars to prevent
the possibility of appe il.
Both as regards the proof of fault and of the
amount of damages there is the greatest uncertainty.
This is in itself a grave evil. An impression that the
large or small amount awarded depends on the par-
ticular judge before whom the case is heard, is cal-
culated to discredit the administration of justice. And
such a tendency is certainly not lessened by knowing
that careful provision has been made to prevent the
case ever reaching the highest tribunal in the country.
Now, unless the united voice of Europe is wrong, the
workman's claim is founded in justice and equity even
though fault is not shewn. If so, and if that opinion
is now general in this country also, it would surely be
better to amend the law than to torture the Code.
The experience of Germany has not been to show
that the change is a heavy burden upon employers.
employers' LFABILITY
37
The sum for which they are liable is limited in amouut,
whereas Jiuljies, and still more, juries, frequently
award extravagant sums.
It seems to me difficult to contend that a change in
the statutory law by a moderate and well-drawn Act
would increase in this province the burden resting
upon the employers, Its main effect would be to give
legislative sanction to a liability which is already en-
forced in practice. And there is no doubt it would
clear up a great deal that is at present uncertain and
confused.
There is a great saving in litigation, and the in-
surance companies enable employers to spread the
risk in such a way that it is least burdensome. More-
over, employers, more than any other class, must know
the dangers which surround the workman, and must
be anxious lo see him protected so far as possible.
WORKMEN'S COMPENSATION ACT, 1897
[(iOand Gl Vit't., cli. ;{7.]
An Act to amend the Law with respect to Compensa-
tion to Workmen for accidental Injuries suffered
in the course of their Employment. Rith August
1897.]
Be it enacted by the Queen's most Excellent Majesty,
by and with the advice and consent of the Lords Spi-
ritual and Temporal, and Commons, in this present
Parliament assembled, and l)y the authority of the
same, as follows: —
I. — (1.) If in any employment to which this Act
applies personal injury by accident arising out of and
in course of the employment is caused to a workman,
his employer shall, subject as hereinafter mentioned,
be liable to pay compensation in accordance with the
First Schedule to this Act.
(2.) Provided that :—
(«.) The employer shall not be liable under this Act
in respect of any injury which does not disable the
workman for a period of at least two weeks from earn-
ing full wages at the work at which he was employed ;
(b.) When the injury was caused by the personal
negligence or wilful act of the employer, or of some
person for whose act or default the employer is res-
ponsible, nothing in this Act shall affect any civil
liability of the employer, but in that case the work-
man may, at his option, either claim compensation
under this Act, or take the same proceedings as were
open to him before the comuiencement of this Act ;
but the employer shall not be liable to pay compensa-
tion for injury to a workman by accident arising out
of anc' in the course of the employment both inde-
pendently of and also under this Act, and shall not
be liable to any proceedings independently of this
40
WOKKMKN'S OU.Ml'ENHATroN ACT, I SOT
Act, except in case of such personal negligence or
wilful act as aforesaid ;
(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 be disallowed.
(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
employment is one to which this Act applies), or as
to the amount or duration of compensation under this
Act, the question, if not SHttle«l 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.
(4.) If, within the time hereinafter in this Act
limited for taking proceediniiS, an r.otion is brought
to recover damages independently of this Act for in-
jury caused by any accident, and it is determined in
such actiou that the injury is one for which the em-
ployer is not liable in such actiou, but that he s\ould
have been liable to pay compensation under the pro-
visions of this Act, the action shall be dismissed ; but
the court in which the action is tried shall, if the
plaintift" shall so choose, proceed to assess such com-
pensation, and shall be at liberty to deduct from such
compensation all the costs which, in its judgment,
have been caused by the plaintiff bringing the action
instead of proceeding un<ler this Act.
In any proceeding under this subsection when the
Court assesses the compensation it shall give a cer-
tificate of the compensation it has awarded and the
directions it has given as to the deduction for costs,
and such certificate shall have the force and effect of
an award under this Act.
(5.) Nothing in this Act shall affect any proceeding
for a tine under the enactments relating to mines or
factories, or the application of any such fine, but if
any such tine, or any part thereof, has been applied
for the benefit of the person injured, the amount so
applied shall be taken into account in estimating the
compensation under this Act.
workmen's COMPKNSATrON A(T, l.H<>7
41
2, — (1) Proceed injijs for the recovery uiuler this Act
of compensation for an injury shall not he maintain-
able unless notice of the a<u'i(lent has been jjfiven as
soon as practicable after the happeninj*- thereof and
before the workman has voluntarily left the employ-
ment 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 fiom the time of death Provided
always that the want of or any defect or inaccuracy
in such notice shall not be a bar to the nuiintenance
of such proceedings, if it is found in the proceedings
for settling the claim that the employer is not pre-
judiced in his defence by the want, def«H!t. or inac-
curacy, or that such want, defect, oi inaccuracy was
occasioned by mistake or other reasonable <!ause.
(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 <'anse of the
injury and the date; at which it was sustained, and
shall be served on the employer, or, if there is more
than one employer, upon one of such employers.
(3.) The notice may be served by delivering the
same to or at the residence or place of business of the
person on whom it is to be served.
(^4.) The notice may also be served by post by a
registered letter addressed to the person on whom it
is to be served at his last known ])lace of residence
or place of business, and if served by post shall be
deemed to have been served at the time when the
letter containing thf same wouhl have been delivered
in the ordinary course of po^t, and in proving the ser-
vice (d'such notice it shall be sufficient to prove that
the notice was properly addressed and registered.
(5.) Where the employer is a body of [)ersons cor-
porate or unincorporate, the notice may also be served
by delivering the same at, *>r by sending it by post in
a registered letter addressed to the employer at the
oflBce, or if there be more than one office, any one of the
offices of such body.
t
42
WOKKMION's CO.MI'KXS.VIKtX \il\ 1897
*i
3^__('l. ) ir th»' licgustrar of Fjieiully Societies, after
taking; steps to ascertain the views of the employer
aud workmen, certifies that any scheme of coiupensa
tion. lieiiedt, or iusuiance lor the workmen of au
employer in any employment, whether or not. such
sclieme inclndes olht-r eri.pl«»yeis ani their workmen,
is on the whole not less favourable to the <j:eneral body
of workmen and their dependants than the provisions
of tliis Act, the employei- :Jiay, until the <'ertilieate is
revoked, contract with any of th(»se workmen that the
provisions of the schema shall be substituted for the
provisions <»f this Act. and thereniton the employer
shall be liable only in accordance with the scheme,
but, save as aforesaid, this Act shall apply notwith-
standing any contract to the contrary made after the
commencement of this Act.
(2.) The Registrar may give a certilicate to expire
at the end of a limited period not less than live years.
(13.) No scheme shall be so certified which contains
an obligation upon the workmen to join the scheme as
a condition of their hiring.
(4.) If complaint is made to the Registrar of F'riendly
Societies by or on behalf of the workmen of any em-
l)loyer that the provisions of any scheme are no longer
on the whole so favourable to the general body of
workmen of such emploj'^er and their dependants as
the provisions of this Act, or that the ])rovisions of
such scheme are being violated, or that the scheme is
not being fairly administered, or that Siitisfactory
reasons exist for revoking the certilicate, the Registrar
shall examine into the <()m plaint, and, if satisfied that
good cause exists for such com])laint. shall, unless the
cause of complaint is remove^!, revoke the certificate.
(5.) When a certilicate is revoked or expiies any
moneys or securities held for the purpose of the scheme
shall be distributed as may be arranged by the em-
ployer and workmen, or as may be uetermined by the
Registrar of Friendly Societies in the event of a
difference of opinion.
(<).) Whenever a scheme has been certified as afore-
said, it shall be the duty of the employer to answer
WOK'K.'SrKN's COMI'KNSATION ACT, I S!>7
la
all such iiKHiirias ami to liiiDisli all sucli iKcoiuits in
re}i,ani to the .sch«MiU! as nmy bo inatlt- or MMiuirol hy
the U('p;iHtrai' * f F^riendly Sotictics.
(7.) The Chicl" UHoisti-ar of Frif-iully Societies sh;ill
include ill his amuial leport tli<' particulaiN of liie
proceedings of the Kejijistiar under this Act.
4.— Where, in an employment to which this Act
applies, the undejtakers as hereinafter <leline.l ((Ui-
tract with any person for the execution l>y or under
such C(.utractor of any work, and the undertakers
Nvould, if such work were exectite<l by workmen im-
mediately employed by them, be liable to pay com-
pensation under this Act to those workmen in rVsi)ect
of any accident arising out of and in the coujse of
their employment, the undertakers shall be liable to
pay to«T.nv workmen employed in the execution of the
work any compensation which is i)ayable to the work-
man (whether under this Act or in respect of per-
sonal negligence or wilful act iude[)endently of tliis
A<'t) by such contractor, or would be so payal»h' if
such contractor were an emploj'cr to whom this Act
applies.
Provided that the undertakers shall be entitU-d to
be indeninilied bj' any other person who would have
been liabb' independently of th s sectit)n.
This section shall not apply to any contract with
any person for the execution by or under such con-
tractor of any work which is merely ancillary or inci
dental to, and is no part of, or process in, the trade
or business carried on by such undertakers respect-
ively.
5, — (1.) Where an enii)loyei' lie«*oines liable under
this Act to pay conj pensation in respci-t of any acci-
dent, and is entitled to any sum from in.-uiers in res-
pect of the amonnr due to a workman under fuch
liability, then in the event of the emi)Ioy«'r IxM-oming
bankrupt, or making a conjj)usition or arrangement
with his creditors, or if the employer is a company of
the con.pany having commenced to be wound ni>, such
workman shall liave a (irst charge upon the sum afore
said for the amount so due, and the judge of the
:!iti
41
wokkmkn's COMPKNSATION A<T, 1807
couiily r«»urt iiiny direct the iiisuiers to pay ;sucli sum
into The I'ost Ollice Savings liauk in th»* name of the
legistrar of Murh court, and order the same to be in-
vested or applied in accordance with the proviaions
of the First Schedule hereto with reference to the in-
vestment in the Post Oftice vSavinjjH Bank of any sum
allotted as compensation, and those provisions shall
apply accordingly.
(2.; In the application of this section to Scotland,
the words " have a tir>t charge upon "shall m«'an '' he
pieferentially entitled to."
6, — Where the injury for which compensation is
payable under this Act was caused under circums-
tances creating a legal lial»ility in some person other
than the employer to pay damages in respect thereof,
the workman may, at his option, proceed, either at
law against that person to recover damages, or against
his employer for compensation under this Act, but
not against both, and if compensation be paid undt-r
this Act, the employer shall be entitled to be indem-
nified by the said other person.
7.— (I.) This Act shall apply only to employment
by the undertakers as hereinafter detined, on or in or
about a railway, factory, mine, quarry, or engineering
work, and to employment by the undertakers as here-
inafter ilefine<l on or in orab(»utany building which ex-
ceeds thirty feet in height, and is either being con-
structed or repaired by means of a scaffolding, or
being demolished, or on- whicli machinery driven by
steauj, water, or. other mechanical power, is being
used for the purpose of the construction, repair, or
demolition thereof.
(2.) lu this act —
"Railway" means the railway of any railway ' om-
pany to which the Regulation of Railways Act, iS73,
applies, and includes a light railway made under the
Light Railways Act, 1896 ;and '• railway " and " rail-
way company " have the same meaning as in tli ^ s.^id
Acts of 18 3 and 1890 :
" Factory " has the same meaning as in the Factory
wohkmfon'k ('omi'h\>sati()X act, 1S07
ir.
iind Workshop Acts, I.MS to ISIH andalso iiH^ludes
any dock, wharf, quay, wareliouse, iiiachinery, or
plant, to which any provision of the Factory Acts is
applie<l by the Factory and Workshop Act, iHJ)r>, and
every laundry worked by steam, water, or other mech-
anical power :
' Mine " means a mine to which the ('oal Mines
Kejjulation Act, 1887, or the Metalliferous Mines Re-
gulation Act, 1872, applies :
*' Quarry ' means a quarry under the Quarries Act,
1.S94 :
^' Engineering work " means any work of construc-
tion or alteration or repair of a laiiroad, harbour, dock,
canal, or sewer, and includes any other work for the
construction, alteration, or repair of which machinery
driven by steam, water, or other mechanical power is
used :
" Undertakers " in the case of a railway means the
railway company ; in the case of a factory, quarry, or
laundry means the occupier thereof within the mean-
ing of the Factory and Workshop Acts, 1878 to ]8!)5;
in the case of a mine means the owner thereof within
the meaning of the Coal Mines Regulation Act, 1887,
or the Metalliferous Mines Regulation Act, 18/2, as
the case may be, and in the case of an engiueering
work means the person undertaking the construction,
alteration, or repair ; and in the case of a building
means the persons undertaking the construction, re-
pair, or demolition :
" Employer " includes any body of persons corpo-
rate or unmcorporate and the legal personal rei)re-
sentative of a deceased employer :
'* Workman " includes every person who is engaged
in an employment to which this Act applies, vvheiher
by way of manual labour or otherwise, and whether
his agreement is one of service or apprenticeship or
otherwise, and is expressed or implied, is oral or in
writing. Any reference to a workman who has been
injured shall, where the workman is dead, inclnde a
reference to his legal personal representative or to his
dependants, or other person to whom compensation is
payable :
" Dependants " means —
III
46
workmen's compknsation act, 1897
(a.) in England and Ireland, sncli members of the
workuiau's family specified in the Fatal Accidents
Act, 1846, as were wholly or in part dependant upon
the earnings of the workman at the time of his death ;
and
(h.) in Scotland, such of the persons entitled accord-
ing to the law of Scotland to sue the employer for
damages or solatium in respect of the death of th«^
workman, as were wholly or in part dependant upon
the earnings of the workman at tlie time of his death.
(3.) A workman employed in a factory which is a
shipbuilding yard shall not be excluded from this Act
by reason only that the accident arose outside the
yard in the course of his work upon a vessel in any
dock, river, or tidal water near the yard.
8, — (1.) This Act shall not apply to persons in the
naval or military service of the Crown, but otherwise
sliall apply to any employment by or under the Crown
to which this Act would apply if the emj)loyer weie
a private person.
(2.) The Treasury may, by warra]::it laid before Par-
liament, modify for the purposes of this Act their
warrant made under section one of the Superannuation
Act, lis87, and notwithstanding anything in that Act,
or any such warrant, may frame a scheme with a view
to its being ccrtilied by the Registrar of Friendly So-
cieties under this Act.
9.. — Any contract existing at the commencement of
this Act, whereby a workman relinquishes any right
to compensation from the employer for personal injury
arising out of and in the course of his employmeni,
shall not, for the purposes of this Act, be deemed to
continue alter the time at which the workman's con-
tract of service would determine if noiice of the deter-
mination thereof were given at the commencement of
this Act.
10. — (1.) This Act shall come into operation on the
irst day of July, one thousand eight hundred and
ninety-eight.
(2.) This Act may be cited as the Workmen's Com-
pensation Act, 1897.
WORKMKN'S C'tMPENBATION ACT, 18<)7
47
SCHEDULES.
FIRST SCHEDULE.
SoALi: AND Conditions of Compensation,
Scale
(1.) The amount ol" compeusatioii under this Act
shall be —
(a) where death results from the injury —
(i.) if the workman leaves any dependants wholly
dependant upon his earnings at the time of his death,
a sum equal to his earnings in the employment of the
same employer during the three years next preceding
the injury, or the buni of one hundred and fifty i)ounds,
whichever of tho.se sums. if the larger, but not exceed
ing iu any ca^e three hundred pounds, provided that
the amount of any weekly payments made under this
Act 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 156 times his average weekly
earnings during the period of his actual employment
under the said en»ployer ;
(ii ) if the workman does not leave any such depend-
ants, nut leaves any dependants iu part dependant
upon his earnings at the time of his death, such sum,
not ex(;eeding in any case the amount payable under
the fort going provisions, as may be agreed upon,
or, iu default of agreement, my be determined, on
arbitration under this Act, to be reasonable and
proportionate to the injury to the said dependants ;
and
(iii.) if he leaves no dependants, the reasonable ex-
I 1
48
workmen's compensation act, 1897
penses of his medical atteodauce and burial, not
exceeding ten pounds.
(6.) where total or partial incapacity for work results
from the injury, a weekly payment during the inca-
X^acity after the second week not exceeding fifty per
cent, of his average weekly earnings daring the pre-
vious twelve months, if he has been so long
employed, but if not, then for any less period during
which he has been in the employment of the same
employers, such weekly payment not to exceed one
pound.
(2.) In fixing the amount of the weekly payment
regard shall be had to the difference between the
amount of the average weekly earnings of the work-
man before the accident, and the average amount
which he is able to earn after the accident, and to
any paym«*nt not being wages he may receive from
the employer in respect of bis iujurj'^ during the period
of his incapacity.
(tJ.) Where a workman has given notice of an acci-
dent, he shall, if so required by the employer, submit
himself for examination by a <iuly qualified medical
practitioner provided and paid l)y 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 any proceeding under this Act in
relation to compensation, shall be suspended until such
examination takes place.
(4.) The payment shall, in case of death, be made
to the legal personal representative of the workman,
or, if he has no legal personal representative, to or
for the benefit of his dependants, or, if he leaves no
dependants, to the person to whom the expenses are
due ; and if made to the legal personal representative
shall be paid by him to or for the benefit of the de-
pendants or other person entitled thereto under this
Act.
(5.) Any question as to who is a dependant, or as
to the amount payable to each dependant, shall, in
default of agreement, be settled by arbitration under
this Act.
ft I
workmen's comi'R! ..atiox act, 1897
49
(6.) The sum allotted as compensation to a depen-
dant may be invested or otherwise applied for the
benefit of the person entitled thereto, as agreed, or as
ordered by the committee or other arbitrator.
(7.) Any sum which is agreed or is ordered by the
committee or arbitrator 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 regis-
trar.
(8.) 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 Kcgistrar as such, and the provi-
sions of any statute or regulations respecting the limits
of deposits in savings bank and the declaration to be
made by a depositor, shall not apply to such sums.
(9.) 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 by the judge of the county court.
(10.) 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 li.ible to
any penalties imposed by any statute or regulations
ill respect of the opening of accounts in two savings
banks, or of two accounts in the same savings bank.
(11.) Any workman receiving weekly payments under
this Act shall, if so required by the employ(r, or by
any person by whom the employer is entitled under
this Act to be indemnified, from time to time submit
himself for examination by a duly qualified medical
practioner provided and paid by the employer, or
such other person ; but if the workman objeefs to an
examination by that medical practioner, or is dissa-
tisfied by the certificate of such practioner npon his
coadition when communicated to him, he may submit
himself for examination to one of the medical prac-
60
workmen's (•o:\ii' I nsation act, iSl)7
tioners appointed for the purposes of this Act, as
mentioned in the Second Schedule to this Act, and the
certificate of that medical practitioner as to the condi-
tion of the workman at the time of the examination
shall be given to the employer and workman, and
shall be conclusive evidence of that condition. If the
workman refuses to submit himself to such examina-
tion, or in any way obstructs the game, his right to
such weekly payments shall be suspended until such
examination has taken place.
(12.) Any weekly payment may be reviewed at the
request either of the employer or of the workman, and
on such review may be ended, diminished or increa-
sed, subject to the maximum above provided, and the
amount of payment shall, in default of agreement, be
settled by arbitration under this Act.
(13.) Where any weekly payment has been conti-
nued for not less than six mouths, the liability there
for may, on the application by or on behalf of the
employer, be redeemed by the payment of a lumpsum,
to be settled, in default of agreement, by arbitration
under this Act, and such lump sum may be ordered
by the committee or arbitrator to be invested or
otherwise applied as above mentioned.
(14.) A weekly payment, a sum paid by way of
redemption thereof, shall not be capable of being as-
signed, charged, or attached , and shall not pass to any
other person by operation of law, nor shall any claim
be set oft" against the same.
(15.) Where a scheme certified under this Act pro-
vides for payment of compensation by a friendly
society, the provisions of the proviso to the first sub-
section of section eight, section sixteen, and section
forty-one ot the Friendly Societies Act, 1896, shall not
apply to such society in respect of such scheme.
(IG.) In the application of this schedule to Scotland
thecxpr'Ct^sion '' registrar of the county court " means
"sherifif" clerk of the county," and ''judge of the
county court " means " sheriff*. "
' (17.) In fcl^e application of this Act to Ireland the
I
\ • . / '
/
,,.•''
\voKK.-\rr<:N's co^rPExsATiox act, ISDT
51
provisioiits of the County OtTticers uiid Courts (rrelaud)
Act, 1877, with respect to money deposited in the
Post Oltice Savings Bank under that Aet shall apply
to money invested in the Post Office Savings Bank
under this Act.
SECOND SCHEDULE.
Arbitkatjox
The following provisions shall apply for settling
any matter which under this Act is to be settled by
arbitatiou : —
(1.) If any committee, representative of an em-
ployer and his workmen exists with power to settle
matters under this Act in the case of the employer
• and workmen., the matter shall, unless either party
objects, by notice in writing sent to the other partj-
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 three 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 county court judge, ac-
cording to the procedure jirescribed by rules of court,
or if in England the Lord Chancellor so authorises,
according to the like procedure, by a single arbitrator
appointed by such county court judge.
(3.) Any arbitrator appointed by the county court
judge shall, for the purposes of this Act, have all the
powers of a county court judge, and shall be paid out
of moneys to be provided by Pailiament in accoi dance
with regulations to be made by the Treasury.
(4.) The Arbitration Act, 18S9, shall not apply to
any arbitration under this Act ; but an arbitrator
it
m
52
workmp:n's compensation act, 1897
!|;i!
ii
may, ii be thinks lit, submit any questiou of law for
the decision of the county court judge, and the deci-
sion of the judge on any question of hiw, either on
such submission, or in any case where he himself set-
tles the matter under this Act, shall be final, unless
within the time and in accordance with the conditions
prescribed by rules of the Supreme Court either party
appeals to the Court of Appeal ; and the county court
judge, or the arbitrator appointed by him, shall, for
the purpose of an arbitration under this Act, have the
the same powers of procuring the attendance of wit-
nesses and the production of documents as if the claim
for compensation had been made by plaint in the
county court.
(5.) Rules of court may niake provision for the ap-
pearance in any arbitration under this Act of any
party by some other person.
(G.) The costs of and incident to the arbitration and
proceedings connected therewith shall be in the dis-
cretion of the arbitrator. The costs, whether before
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.
(7) In the case of the death or refusal or inability
to act of an arbitrator, a Judge of the High Court at
Chambers may, on the application of any party, ap-
point a new arbitrator.
(8.) Where the amount of compensation under this
Act shall have been ascertained, or any weekly p.^y-
ment varied, or any other matter decided, under this
Act, either by a committee or by an arbitrator or by
agreement, a memorandum thereof shall be sent, in
manner prescribed by rules of court, by tLesaiii com-
mittee or arbitrator, or by any party interested, to the
registrar of the county court for the district in which
any person entitled to such compensation resides, who
shall, subject to such rules, on being sativ^fiedas to its
genuineness, record such memorandum in a special
register without fee, and thereupon the said memor-
andum shall for all purposes be enforceable as a county
court judgment. Provided that the county court judge
may at any time rectify such register.
> 1 1 > !
WOKICAfKN's rOAIPF-NflATFOX ACT, 1S!>7
53
(9.) Where any matter mule" this Aet is to be<]ono
in a county eoiirt, or by to or bef.^re tlieju(lp:e or
registrar of a eounty court, then, unless tiie contrary
intention appeur, the same shall, subject to rules of
court, be done in. or by to or before tlie jiidjre or re-
gistrar of, the county court of the district in which
all the parties concerned reside, or if they reside in
different districts the district in which the accident
out of which the said matter arose occurred, without
l)rejudice to any transfer in manner provided by rules
of court.
(10.) The duty of a county court jndge under this
Act, or of an arbitrator appointed by him, shall, sub
ject to I'ules of court, be part of the duties of the
county court, and the otlicers of the court shall act ac-
cordingly, and rules of court may be made both for
any purpose for which this Act authorizes rules of
court to be made, and also generally for carrying into
effect 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 sucli rules may, in England,
1)0 made by the live judges of the county courts ap-
pointed for the making of rules under section one
liundred and sixty- four of the County Courts Act,
]S88, and when allowed by the Lord Chancellor, as
provided by that section, shall have fall effect without
any further consent.
(11.) Xo court fee shall be payable by any party in
respect of any proceeding under this Act in the county
court prior to the award.
(12.) Any sum awarded as compensation shall be
paid on the receipt of the person to whom it is
payable under any agreement or award, and his soli-
citor or agent shall not be entitled t» I'ccover from
him, or to claim a lien on, or deduct any amount for
costs from, the said sum awarded, except such sum as
may be awarded by the arbitrator or coutity court
judge, on an application made by either party to de-
termine the amount of costs to be paid to the said
solicitor or agent, such sum to be awarded subject to
taxation and to the scale of costs prescrib3d by rules
of court.
54
wokkmicn's (•u:mi'e\sati(>x act, 1S!>7
■l, I.
i\:\.) TIk* Secrotary of Srutc may appoint lej^ally
qualilied iiicMiical piaclif ioiUTs for the purpose of this
Act, and any coniniittrc, arhitratoi-, or jn(l<;(^ may,
subject to rcp;ulations inadc by the Secretary of State
and th(; Treasury, appoint any such practitioner to
repoit on any matter which seems material to any
question arisinj^ in the arbitration ; and the expense
of any such uiedical practitioner shall, subject to
Treasury retaliations, ^e paid out of moneys to be
provided by Parliament.
(It.) In the application of this schedule to Scot-
land —
(a.) '•Sheriff" shall l)e substituted for *' county
court judi^e," "sheriff court" for " county court,"
"action " for " plaint," "sheriff clerk '' for " re-
gistrar of the county court," and " act of sederunt "
for " rules of court; "
(/>. ) Any award or agreement as to compensation
under this Act may be competently recorded for
execution in the books of council and session or
shciilf court books, and shall be enforceable in like
manner as a recorded decree arbitral ;
(<•.) Any application to the sheriff as arbitrator shall
be he. lid, tried, and detjermined summarily in the
mannei- provided by the fifty-second section of the
Sheiiif (Courts (Scotland) Act, 1870, save only that
l)artics may be represented by any person authorised
in writint; to appear for them, and subject to the
declaration that itshall be competent to either party
within the time and in accordance with the condi-
tions prescribed by act of sederunt to require the
sheritf to state a case on any question of law deter-
mined by him. and liis decision thereon in such case
may be subuiitttMl to either division <»f the (Jourt of
Session, wht) m;iy hear ;ind deteriuine the same
finally, and remit to tiie slieriff with instruction as
to the judgment to be pronounced.
(15) Paragraphs foni- and seven of this schedule
shall not apply to Scotland.
(It).) In the application of this schedule to Ireland
the expiession *' county court judge," ^liall include
the recorder of any city or town.
coiiceriiant k's icspousjiMlites (k;s accidents doiit
los ouvi'icrs soiit victiiiu's dans Icnr li'avail
(111 avril 1.S98.
Titre I. —Is DKMSlTKfi F,\ (AS d'ACCIOKNTS
l« Les acciileuts surveiuis par le fail dii travjnl, on
a I'occasiou dn travail, aux ouvriers et employes
occupes daus I'industrie dii batituent, les iisiiies,
mauufactiires, cbantiers, les eutreprises de transport
par terre et par eaii, de chargemeot et de decliarj>'e-
ment, les magasius publics, niiiie.% iniui^res, canieres
et, en outre, daus toute exploitt'.iion ou partie d'ex-
X^loitation dans la(iuelle sont fabriquees ou mises en
(Deuvre des matieres explosives, ou ''aus laquell*' il est
fait usage d'une machine iiiue par une iorceautr(^ (jue
celle de I'hoiunie ou des auiniaux, donnent droit, au
profit de la vicbime ou de ses representants, a une
iudeiuint(S A, la charge du chef d'entreprise, a la con-
dition que I'interruption de travail ait dure plus de
quatre jours.
Les ouvriers qui travaillent seuls d'ordiuaire ne
pourront 6tre assujettis a la preseate loi par le fait de
la collaboration accideutelle d'uu ou de plusieurs de
leurs cainarades.
"2. Les ouvriers et employ»^'S desigues a Particle
prec<3dent ne peuvent se pr^valoir, a raison des acci-
dents doiit ils sont victimes dans leur travail, d'au-
cunes dispositions autres que celles de la presente loi.
Ceux dont le salaire annuel d^passe deux luille
quatre cents francs (2.400 fr.) ne b6n6ticient de ces
dispositions que jusqu'^ concurrence de cette souuue.
Pour le surplus, il n'en droit qu'au quart des rentes ou
indemnites stipules a I'article 3, a moins de conven-
tions contraires quant au chiffre de la quotite.
.1. i '
5()
l,<)r CONCKKNAXr I.KS KKSI'ON'SAIMMTKS
:{. Dans les cjis pr6viis u rarticlo 1, Touvrier on
l'eini)l(>y/' a droit :
Pour rincai)a(ite abHolue ot perinanento, a une
rente ^'galo aux deux tieiH de Hoti t^alaire
annuel :
Pour I'ineapaeite partielle et pernui^'ente, i\ une
rente ^''j^ale ;\ la nioiti<3 de la r<['Hluetion que
l'ae('id«Mit aura lait subir an salaire;
Pour l'ineai)aeite teniporaire, j\ une indemnit6
journali^re ejjjale a la nioitie du sjilaire touche
au moment de laeeident, si I'ineapaeite de
tiavail a dure plus de quatre jours et i\ partir
du einqui^nie Jour.
Lorsque I'aeeident est suivi de niorr, une pension
est servie aux personnes ei-apies desi^nt'es, a partir
du d6ces, duns les eonditions suivantes :
(«.) line rente viaj»ere egale a 20 p. 100 du salaire
annuel de la victime t oui- ie eonjoint survivant non
divore^ ou separ^ de corps, a la condition que le ma-
riaj»'e ait 4t6 contracte anterieurement a, I'aeeident.
En eas de nouveau mariajpje, le conjoint cesse d 'avoir
droitft la rente mentionneeci-dessus ; il lui sera allou6
dans ee <a^, le triple decette rente a tifre d'indemnit6
totale.
(ft.) Pour les enlauts, legitimes ou naturels, recon-
nus avant I'aeeident, orplielins de j^ere on de mere,
^g^s (te moins de seize ans, une rente ealculee sur le
salaire annuel de la victime a raison de 15 p. 100 de
ce salaire s'il n'3^ a qu'un enfant, de 25 p. 100 s'il y en
a deux, de o5 p. 100 s'il y en a trois, et 40 p. 100 s'il
y en quatre ou un plus ^rand nombre.
Pour les enfants, orplielins de pere et de mere, la
rente est portee pour cliacun d'eux a 20 p. 100 du
salaire.
L'ensemble de ces rentes ne pent, dans le premier
eas, d^passer 40 p. 100 du salaire ni 00 p. 100 dans le
second.
(c. ) Si la victime n'a ni conjoint u' enfant dans les
termes des paragraphes a et h, chacuu des ascendants
et descendants qui etait a sa charge recevra une rente
viag^re pour les ascendants et payable jusqu'a seize
aus pour les descendants. Cette rente sera egale a 10
DF3H ACCIDKNTS DKS OUVRIKKS
57
p. 100 du siilairo jiumiol do la victiino. ssins (|UP le
niontant total dcs rentoH aiiisi allou<!!'es piiisHc d^^pas-
ser 30 p. 100.
Chacuiie des rotitcs pr<''viies pai' le paragraphe r «\st,
le cas 6cli^aut, rt^'diiito inoportiouiiellenient.
Les rentCH constituees eii veitu de la, prC'snnte loi
8ont payables i)iir triinestre ; elles sont iucossibles et
insaisiHsables.
Les ouvrieis t'ti'imj:;('rs, victiiaos d'accidents qui
cesseront de lesider sui- le teriitoire frangais rece-
vront, X)oni' toute iiideimiit^, un ciipitul egal ji trois
fois la rente qui lenr avait ete allouee.
Lea repr^sentaiits d'un oiivrier etrai),u'er ne reee-
vront aneiine indeinnite si, an iiiouient de I'accident,
ils ne rdsidaient pas sur le teiiitoirc I'lanyais.
I. Le chef d'entre])rise supi)orte en outre les frais
luddicaux et pharrnaeeutiques et les Irais tun6raires.
Ces dernieis sont ('values a la sonnue de cent francs
(100 fr.) au maximum.
Quant aux frais medicaux et j)harmaceutiques, si la
victime a fait clioix elle-meme de son medeoiu, lechef
d'entreprise ne i)eut etre tenu (lut- Jusqu'a concur-
rence de la somnie tixee par le juge<le paix du canton,
conformenjHut aux taiits adoptes dans chaquedeparte-
ment pour Tassistance medicale j^ratuite.
r>. Les chefs d'entreprise pen vent se decharjijer pen-
dant les trente, soixante on quatre vingt dix premiers
jours a parti r de I'accident, de I 'obligation de payer
aux victimes les frais de maladie et 1 'indemnity tem-
poraire, ou une partie senlement de cette indemnity,
comme il est specitie ci-apres^ s'ils justitient :
lo. Qii'ils out afftlie leuis onvriers a des societ^s de
secours niutnels et piis a leur charge une quote-
part de la cori>ation qui aura ete d^termin^e
d'un commun accord, et en se conformant aux
status tyi)e approuv6s par le ministre compe-
tent, mais qui ne devra pas etre inferieure au
tiers de cette cotisatiou ;
2o. Que ces soci6tes assurent a leurs membres, en
cas de blessures, pendant trente, soixante ou
quatre-vingt dix jours, les soins medicaux et
B8
|,()| CONCKKNANT I.KS KIISI'ONSA HII.IT^IS
phiit inaceutiqiM's (>t uiie in<i<Muiiit^> JuiinialiiMe.
Si rmdtMnniK'^ JounialitMe seivio par hi Hoci^tt* est
inlV'rieuuM'i lii inoitii''! <lu sahiiro (jiiolidieii <le la vw-
tiiiM', Ic chef dViit reprise est leiiu de hii versei- la
dinVMeiH't'.
li. Lcs <'xpl()ituMtH (les mines, iiiiiiieies et cairieres,
peuveiit se deehaij^er des IVais et iiideiiinit^.s men-
tioiiuesa I 'article ])re(*(''dent moyemiant nne suhv<Mi-
tiou aiuiuelle vers^*eauv caisses on societes de Heeuurs
const it uees dans ces entiJ^prises en vertu de la loi du
2!)juin 1M>4.
ii«' niontant et les conditions de cette subvention
devrout 6tre acceptes par la soci6t6 et approuves par
le niinistre des travaux i)uhli(*s,
Ces deux dispositions seront applicablea t\ tous
autres chefs d'industrie qui auiont cr^6 en faveur de
leurs ouvriers des caisses particuli^res de secours en
coufo'-niit6 du titre III de la loi du LM) juin 1<S94.
L'appi'obation pr^vue ci-dessus sera, en ce qui les
concerne, dounee par le luinistre du commerce et de
rindustrie.
7. liKiependaninient de Faction resultant de la pr^-
sente loi, lavictinieou ses representants couservcut,
contre les auteurs de I'accident autres (pie le patron
on ses onvriers et preposes, le droit de reclamei- la
reparation du pr^'judice cause, coulbrmeiueut aux
regies du droit coniiiiun.
L'inilcmnite qui leur sera allouee exonerera a due
coucurren(!e le chef d'entreprise des oblijj;:itions niises
a sa cbarjjje.
Cette action contre les tiers responsables pourra
meme etre excrete par le chef d'entreprise, a ses
risques et perils, au lieu et place de la victime on de
Ses ayants droit, si ceux-ci negligent d'eu faire usage.
H. Le salaire qui servira de base a la lixatiou de
l'iudemnit6 allouee a I'ouvrier ag6 de moins de seize
aus ou a I'apprenti victime d'un accident ne sera pas
inferieur au salaire le plus has des ouvriers validesde
la meme categoiie occupes dans I'entreprise.
Toutefois, dans le cas d'incapacit^ temporaire. Pin-
DKS A(( IDKNTH DKS nUVKIKkS
5U
ilemiiiu'' do I'duviUm' A^V* dc inoins do scizo ana ne
pourni piiM d<'pji8.sei' le iiumtaut do son Siilaiie.
II. Lots du ioj;l('ineiit detimtir d(» l:i rnife viajujero,
iiprrs le dolai d<5 rtH'ision iii«''vu a Tarticde 10. la v'w-
time pent (loiuaiidci' (pio io qiiarr. ail plus du capital
ui'^cessaire s\ I'^taWiissenieut de eel to rente, ealeuK*
d'apres les tarils dress<'»s pour les vietiuies (l'Meei<lents
\y,ii' la eaisse des retraites pour la vieillesse, lui soit
attribu6 eu esp^ees.
Elle peut aus.si deiuauder que ee capital, ou ee capi-
tal I'^duit du quart au plus coiaiue il vietit d'etre dit,
serve ji conistituer sur «a tete une rente via;;ere rever-
.sil)le, pour moiti^^ au i)lus. Hur la tC'te de sou eonjoint.
Dans ce cas, la rente viajijere sera dimiuiK^e de l'a(;on
qu'il ne r^sulte de la r^^versibilite aueune auj^inenta-
tiou de charge poui' le chef d'entreprise.
Le tribunal, en chauibre du conseil, statuera sur ces
demandes.
lO. Le salaire servant de base a la (ixation des ren-
te!-; s'entend, ])0ur I'ouvrier occupe dans reutrepiise
pendant les douze niois ecoules avant Taccident, dela
remuneration etl'ective qui lui a ete allouee pendant
ce temps, soit en argent, soit en nature.
Pour les ouvriers occupes pendant moins de dou/e
mois avant I'accident, il doit s'entendre de la remu-
u^ration effective qu'ils ont re^u depuis leur entree
dans I'entreprise, augmente de la remuneration
moyenne qu'on reyue, pendant la periode mk'essaire
pour completer les douze mois, les ouvriers de la" meme
categoric.
Si le travail n'est pas continu, le salaire annuel est
calcuie tant d'apres la remuneration reyue pendant la
periode d'activite ijue d'apres le gain de I'ouvrier
l)endant le reste de l'ann6e.
TUre II. — DKCLAUATrox des accidents et enquete.
Il« Tout accident ayant occasionne une incapacity
de travail doit etre declare, dans les quarante huit
hewres, par le chef d'entreprise ou ses pr^pos^s, au
maire dela commune qui en dresse procfes-verbal.
60
LOI CONCEKXAXT I.ES RKSPOXSAIJILITES
m
r .. I-'.
■ w
m
Cette declaration doit cioutenir les noms et adresses
des t6nioins de Taccideut. II y est joint im certitieat
de lu^decin indiquaiit I'etat de It victiiue, les suites
probables de I'acc.ideiit et l-epoque a laqneile il sera
possible <l 'en connaitre le resultat d^iinitif.
La rnenie d^iclaration pouri'a etre faite par la vie-
time ou ses representants.
Recipiss6 de la declaration et dn (!ertiHcat dii me-
decin est remis par le maire an declaiant.
Avis de I'aecident est donne irumediateiaent par le
maire a I'inspecteur divisionnaire ou dep-nteinental
dii travail on a I'in^enieur ordinaire des mines clmrge
de la surveillance de I'entreprise.
L'article 15 de la loi du 2 novembi-e 1S92 et Particle
11 de la loi du 12 juin I8!)3 cjsseut d'etre applicables
dans les cas vises par la presente loi.
12. Lorsque. d'apres le certilicat medical, la bles
sure parait devoir entraiuer la mortou une incapacite
permanente absolue ou partielle de travail, le maire
transmet inim6diatement copie de la declaration et
le certitieat medical au juge de paix du canton ou
I'aecident s'est produit.
Dans les viiigt quatre heures de \\ reception de cat
avis, le juge de paix procede a une enquete a I'effet
de recherclier :
1' La cause, la nature et les circonstances de I'ac-
cident ;
2^ Les personnes victimes et le lieu ou elles se
tiouvent ;
,')° La natuie des lesions ;
4" Les ayants droit pouvant, le cas (Scheant, pre-
tend re a nn(; indemnite j
')" Le saiaire quotitiien et le salaire annuel des
victimes.
Hi. L'enquete a lieu contradictoireiiient dans les
formes preserites par les articles 35, 'M\, 37. 38 et 39 du
code (le procedure civile, en presence des parties inte-
ressees ou celles ci convoquees d'urgence par lettre
recommandee.
Le juge de paix doit se transporter aupr5s de la
victime de I'aecident qui se trouve dans Tiuipossi-
bilite d'assister a I'enquete.
DES ACCIDENTS DE8 OUVRIERS
61
Lorsque le certiticat medical ne lui paraitra pas
suffisaut, le juge de paix pourra designer uu m^decin
pour examiner le bless^.
II peut aussi commettre un expert pour I'assister
dans Penqudte.
II u'y a pas lieu, toutefois, a nomination d'expert
dans les entreprises administjativement surveill^es,
ni dans celles de PEtat plae4es sous le contr61e d'un
service distinct du service de gestiou, ni dans les eta-
blissements nationaux oil s'effectuent des travaux que
la s4curit6 publique oblige a tenir secrets. Dans ces
divers cas, les fonctionnaires charges de la surveillance
ou du controle de ces ^tablissements ou entreprises
et. en ce qui concerne les exploitations mini^res, les
d^legu^s a la s4curit6 des ouvriers miueurs, trans-
metteiit au juge de paix, pour etre joint au proces-
verbal d'enquete, un exemi^laire de leur rapport.
Sauf les cas d'impossibilite materielle diimeut cons-
tates dans le proems verbal, Penquete doit etre close
dans le plus bref d^lai et, au plus tard, dans les dix
jours a partir de Paccident. Le juge de paix avertit,
par lettre recommandee, les parties de la cloture de
Penquete et du d6p6t de la minute au greffe, ou elles
pourront, pendant un d^lai de cinq jours, en prendre
connaissance et s'en faire d^livrer une exp(5dition,
afFranchie du timbre et de Penregistrement. A Pex-
piratiou de ce d^lai de cinq jours, le dossier de Pen-
quete est transmis au president du tribunal civil de
Parrondissement.
14. Sont punis d'une amende de un a quinzefrancs
(1 a 15 fr.) les chefs d'industrie ou leursprei3os6squi
out contrevenu aux dispositions de Particle 11.
En cas de recidive dans Pann^e, Pamende peut etre
41evee de seize a trois cents francs (IG a 300 fr,).
L'article 46-') du code penal est applicable aux con-
traventions pr6vues par le present article.
62
I.OI CONOKlcNANT LES RESPOXSA BILITES
Title in. — Co.Aii'KTHXCE. Juu[DKTroK8. Procedure
If K VIS I ON.
■ 3.4.
15. Les contestations entre les victimes d'accideuts
et les chefs d'eutreprise, relatives aux frais fun^rai-
res. aux frais de mahidie ou aux ludemnites ternporai-
res, sont juji;ees eu dernier ressort par le juge de paix
du canton ou I'accident s'est produit, aquelque chififre
que la demande puisse s'61ever.
lO. En ce qui toucbe les autres indemnites prevues
par la presente loi, le president du tribunal de I'ar-
rondissenieut convoque, dans les cinq jours a partirde
la transmission du dossier, la victime ou ses ayants
droit et le chef d'eutreprise, qui peut se faire repre-
senter.
S'il y a accord des parties int^ress^es, Pindemnit^
est d^-finitivement fix^e par Pordounance du president
qui donue acte de cet accord.
Si 1 'accord n'a pas lieu, Paffaire estrenvoy^e devant
le tribunal, qui statue comme en niatiere sommaire,
conformement au titre XX[V du livre II du code de
procedure civile.
Si la cause n'est pas en etat, le tribunal sursoit a
statuer et I'indemnite temporaire continuera k 6tre
servie jusqu'a la decision definitive.
Le tribunal pourra condamner le chef d'eutreprise
a payer une provision, sa decision sur ce point sera
ex^cutoire nonobstant appel.
17- Les jugements rendus en vertu de la presente
loi sont susceptibles d 'appel selon les regies du droit
commun. Touttfois, 1 'appel devra etre interjete dans
les quinze jours de la date du jugement s'il est contra-
dictoire et, s'il est par d^laut, dans la quinzaine a
partir du jour ou I'opposition ne sera plus recevable.
L'opijosition ne sera plus recevable eu cas de juge-
ment par d^faut contre partie, lorsique le jugement
aura 6t6 siguilie a personne, passe le d^lai de quinze
jours k partir de cette signification.
La cour statuera d'urgence dans le mois de I'acte
d'appel. Les parties pourront se pourvoir en cassa-
tion.
DES ArCIDKNTS DES OUVRIEUS
63
18. L'action en iiwlemnit^ pr^vue par la pr^sente
loi se present par uu un k (later du jour de I'accideut.
lO. La deraande en revision de 1 'indemnity fondee
sur une aggravation on line -ittenuation de Piufirmite
de la vietime on son d^ces par suite des consequences
de I'accident, est ouverte penaant trois ans adater de
I'accord intervenu entre les parties on de la decision
definitive.
Le titre de pension n'est remis a la vietime quTi
Pexpiration des trois ans.
2 . Aucune des indemnit^s determinees par la pre-
sente loi ne peut etre attribuee a ia vietime qui a
intentiounellement provoque I'accident.
Le tribunal a le droit, s'il est prouve que Faccideut
est du a une faute inexcusable de I'ouvrier, de dimi-
nuer la pension tixeeau titre ler.
Lorsqu'il est prouv6 que I'accident est dfi a la faute
inexcusable du patron ou de ceux qu'il s'est substirue
dans la direction, I'indemnit^ pourra dtre majoree,
mais sans que la rente ou le total des rentes allouees
puisse depasser soit la redaction soit le montant du
salaire annuel.
21. Les parties peuvent toujours, apr^s determina-
tion du cliiffre de I'indemnite due a la vietime de I'ac-
cident, decider que le service de la pension sera sus-
pendu et remplace, tant que I'accord subsistera, par
tout autre mode de reparation.
Sauf dans le cas prevu a i'article 3, paragraphe A,
la pension ne pourra etre remplacee par le paiement
d'un capital que si elle n'est pas superieure a 100 tr.
32. Le benefice de I'assistance judiciaire est accor-
ds de pleiu droit, sur le visa du procureur de la liepu-
blique, a la vietime de I'accident ou a ses ayants droit,
devant le tribunal.
A cet effet, le president du tribunal adresse au pro-
cureur de la E.epublique, dans les trois jours de la
comparution des parties prevue par I'article 16, uu
extrait de son proces-verbal de non-conciliation ; il y
joint les pieces de 1 'affaire.
Le procureur de la Republique precede comme il
64
LOr OONCEJ^NANT LES RE81'0N«ALJILITES
]'■■• '
I -1
■I •: «
est presciit a I'article 13 (paragraphe 2 et suivants)
de hi loi du 22 jauvier 1851.
Le b^uetice de ] assistance judiciaire s'^tend de
plein droit aux instances devant le jnge de paix, ^
tons les actes d'executiou mobiliere, etimmobiliere et
a toute contestation incidente a 1' execution des d6ci«
sionsjudiciaires.
Titre IV. — Garanties.
a;$. La ereauce de la victime de I'accident ou deses
ayauts droit relative aux frais m^dicaux, pharmaceu-
tiques et fun^raires ainsi qu'aux indenmit^s allonges
a la suite de I'incapacite temporaire de travail, est
garautie par le privilege de Particle 2101 du codecivil
et y sera inscrite sous le no (J.
Le payment des indemnites pour incapacite perma-
nente de travail ou accidents suivis de mort est
garauti conibrm6ment aux disposition des articles sui-
vants.
24- A defaut, soit par les chefs d'entreprise debi-
teurs, soit par les soci^tes d'assuran^^es k primes fixes
ou mutuelles, ou les syndicats de garantie liant soli-
dairement tous leurs adherents, de s'acquitter, au
moment de leur exigibilite, des indemnites mises a
leur charge a la suite d 'accidents ayant entratne la
mort ou une incapacite permanente de travail, le
payement en sera assure aux int^ress^s par lessoins
de la caisse nationale des retraites pour la vieillesse,
au moyen d'un fonds special de garantie constitu6
comme ilva 6tre dit et dont la gestion sera confine a
la dite caisse.
25. Pour la constitution du fonds special de garan-
tie, il sera ajoute au principal de la contribution des
patentes des iudustriels vis6s par I'article ler, quatre
centimes (0 t'v 04:) additionnels. II serapergu surles
mines une taxe decinq centimes (0 fr. 05) par hectare
concede.
Ces taxes jiourront, suivant les besoins, dtre majo-
rees ou reduites par la loi de finances.
20. La caisse nationale des retraites exercera un
DES ACCIDENTS DE8 OUVKIERS
<i5
recours centre lea chefts d'entreprise d^^biteurs, pour
le corapte desquels des sommes auront 4t6 payees piir
elle, conform^ment aux dispositions qui precedent.
En eas d'assurance du chef d'entreprise, ellejouira,
pour le remboursement de ses avances, du privilege
de Particle 2102 du code civil sur l'indemnit6 due par
I'assureur et n'aura plus de recours contre le chef
d'entreprise.
Un r^glement d'administration publique d^ternii-
nera les conditions d'organisation et de fonctionne-
nient du service confere par les dispositions pr^ce-
dentes a la caisse nationale des retraites et, notam-
nient, les formes du recours k exercer contre les chefs
d'entreprise d^biteurs ou les soci^t^s d'assurances et
les syndicats de garantie, ainsi que les conditions dans
lesquelles les victimes d'accidents ou leurs ayants
droit serontadmis k reclamer a la caisse le payment
de leurs indemnit^s.
Les decisions judiciaires n'emporteront hypoth^que
que si elles sont rendues au protit de la caisse des re-
traites exergaut son recours contre les chefs d'entre-
prise ou les compagnies d'assu ranees.
2T« Les compagnies d'assurances mutuelles ou a
piimes fixes contre les accidents, frangaises ou 6tran-
geres, sont soumises a la surveillance et au controle
de I'Etat et astreintes a constituer des reserves ou
cautionnements dans les conditions d^terminees par
un r^glement d'administration publique.
Le montant des reserves ou cautionnements sera
affects par privilege au payement des pensions et in-
demnit^s.
Les synciicats de garantie seront soumis k la m^me
surveillance et un reglement d'administration publi-
que d^terminera les conditions de leur creation et de
leur fonctionnemeut.
Les frais de toute nature resultant de la surveillance
et du contr61e seront cou verts au moyen de contribu-
tions proportionnelles au montant des reserves ou cau-
tionnements, et fixes adnuellement, pour chaque com-
pagnie ou as^sociation, par arr^te du ministre du com-
merce.
*2H. Le versement du capital repr^sentatif des pen-
<)G
LOJ C'ON'CERNANT LES RESPONSABILITES
m.
sions allou6es en vertii de la pr^sente loi ne peut ^tre
exig^ (les d^biteiirs.
Toutefois, les d^biteurs qui desirerontse lib^rer ea
une fois pourront verser le capital repr^sentatif deces
pensions k la caisse nationale des retraites, qui ^tablira
k cet efifet, dans les six mois de la promulgation de la
pr^seiite loi, un taiif tenant conipto de lai mortality
des victimes d 'accidents et de leurs ayants droit.
Lorsqu'un chef d'entreprise cesse son Industrie, soit
volontaireniont, soit par d^ces, liquidation judiciaire
ou faillite, soit par cession d'^tablisseiuent, le capital
representatifdes pensions a sa charge devieut exigible
de plein droit et sera verse a la caisse nationale des
retraites. Ce capital sera determine au jour de son
exigibilit^, d'apr^s le tarif vis6 au paragr.iphe pr^c6-
dent.
Toutefois, le chef d'entreprise ou ses ayants droit
penvent etre exon^r^s du versement de ce capital, s'ils
fournisseut des garanties qui seront u determiner par
un reglement d'administration publique.
Titre V. — Dispositions generales.
tis
Jii
^■i-
29. Les proc^s-verbaux, certificats, acte de noto-
ri6t6, significations, jugements et autres actes faits ou
rendus en vertu et pour I'ex^cution de la presente loi,
sont d^livres gratuitement, vis^s pour timbre etenre-
gistr^s gratis lorsqu'il y a lieu a la formality de I'eu-
registremeut.
Dans les six mois de la promulgation de la prdsente
loi, un ddicret d^terminera les Emoluments des gref-
fiers de justice de paix pour leur assistanne et la re-
daction des actes de notoriEt6, procfes verbaux, certifi-
cats, significations, jugements, envois delettres recom-
mand^es, extraits, d6p6ts de la minute d'enqu^te au
greflfe, et pour tous les actes n^cessit^s par 1 'applica-
tion dela presente loi, ainsi que les frais de transport
aupr^s des victimes et d'euqu^te sur place.
30. Toute convention contrairea la presente loi est
Mulle de plein droit.
DES ACCIDENTS DES OI^VKIERS
67
31. Les chefs d'entreprise sont tenus, sous peine
d'une amende de un a quinze francs (1 k 15 fr), de
faire afflcher dans chaque atelier la pr^sente loi et lea
r^pjlements d'administration relatifs s\ son execution.
En cas de r^cidive dans la meme ann6e, Pamende
sera de seize a cent francs (16 h, 100 fr.)
Les infractions aux dispositions des articles 11 et 31
pourront^treconstat^es par les inspecteurs du travail.
32. II n'est point d6rog6 aux lois, ordonnances et
rfeglements concernant les pensions des ouvriers, ap-
prentis et journaliers appartenant aux ateliers de la
marine et celles des ouvriers immatricul^s des manu-
factures d'armes dependant du minist^re de la guerre.
33. La presente loi ne sera applicable que trois mois
apy^s la publication officielle des d^crets d'adminis-
tration publique qui doivent en r^gler Pex^cution.
34. Un r^glement d'administration publique d6ter-
minera les conditions dans lesquelles la presente loi
pourra dtre appliquee a 1' A.lg6rie et aux colonies.
La presente loi, d61ib6ree et adoptee par le S6nat et
par la Chambre des deputes, sera ex^cutee comnie loi
de I'Etat.
Fait a Paris, le 9 avril 1898.
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