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 1 
 
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THE 
 
 WORKMEN'S 
 
 COMPENSATION FOR INJURIES ACT 
 
 1892 
 
 55 VICT. CAP. 30 (O.) 
 
 AND 
 
 THE REVISED STATUTE OF ONTARIO 
 
 (1887) 
 
 CHAPTER 135 
 
 COMMONLY KNOWN AS 
 
 LORD CAMPBELL'S ACT 
 
 WITH COPIOUS NOTES 
 BY 
 
 GEORGE SMITH HOLMESTED, 
 
 ( Of Osgoode Hall, BarrUter-at-Laiv, and Registrar of the Chancery Division 
 of the High Court of Justice of Ontario. ) 
 
 TORONTO 
 
 1893 
 
 BIBLIOTHEQUE DE DROIT 
 
 U.d'O. 
 
 O.U. 
 
 LAW LIBRARf 
 
 ! 
 
Entered according to Act of the Parliament of Canada, in the year one 
 thousand eight hundred and ninety-three, by George Smith Holmested, 
 at the Department of Agriculture. 
 
 BINQHAM S PniNTINQ 
 38 ADELAIDE ST. WEST TORONTO 
 
 7// 6 
 
 
/C^osi^ 
 
 PREFACE 
 
 DV The Workmen's Compensation for Injuries Act, '^'qj, the 
 Legislature has effected an important modification of the 
 Common Law, so as to give to servants, in certain cases, a 
 remedy against their employers for injuries sustained by them 
 in the course of their employment, which the Common Law 
 denied them. 
 
 The origin of this Act is to be found in the English "Em- 
 plover's Liabilitj/ Act, 1 88u," which has been copied not only in 
 Ontario, but also in at least two of the States of the neigh- 
 bouring Republic, viz., Alabama and Massachusetts, and from 
 the reports of both of these States some citations will be found 
 in the following pages. A somewhat similar provision is also 
 incorporated in the Law of Quebec. 
 
 More than one eflfort has been made to amend the English 
 Statute, even at the present time radical changes in it are under 
 consideration, and it is most probably from a bill introduced 
 with that object in the Imperial Parliament in 1890, but which 
 failed to become law, that the amendments made in the Ontario 
 Act as originally passed in 1886, were principally derived. These 
 amendments constitute the chief variations between the Act here 
 annotated and the English Act. 
 
 As anticipated by the late Lord Bramwell, when the English 
 Act was before the House of Lords, it has given rise to con- 
 siderable litigation ; and as remarked by Lord Esher, M.R., in 
 Walsh v. Whitely, 21 Q.B.D., at p. 374, two lines of thought 
 have run through the decisions ; the one that the Act is not to 
 be construed so as to extend the employer's liability beyond 
 
vi. 
 
 PREFACE. 
 
 the letter of the Statute, and the other, that the Statute should 
 receive a wide and liberal interpretation, and one as favourable :<s 
 possible to the workman ; and as may be supposed these diver- 
 gent views have left their mark upon the cases, and made it 
 sometimes somewhat difficult to reconcile them with each other. 
 
 Lord CampbeWs Act, which is included in this work, appears 
 to be a necessary addition. Most, if not all, of the English and 
 Canadian cases bearing on these Statutes will be found referred 
 to, and also some decided in the Courts of other countries. 
 
 I have to acknowledge my indebtedness to J. F. Smith, 
 Esq., Q.C., the learned Editor of the Ontario Reports, for 
 having obligingly read the work as it passed through the press, 
 and also for having referred me to sources of information of 
 which I gladly availed myself. 
 
 G. S. H. 
 
 OsGOODE Hall, Toronto, 
 March 24th, iSqj. 
 
lould 
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 -J 
 
 TABLE OF CASES CITED 
 
 »L . ., Page 
 
 Abraham v. Reynolds, 5 H. & \. 143 ^ 
 
 Aitken v. Newport Slipway Dry Dock, ^ T.L.R. 1^27 ,7 46 
 
 Allmarch v. Walker, 78 L.T. Jour. .191 1 \ 
 
 Amos V. Duffy, 6T.L.R. 339 82 
 
 Ayres v. Bull, 5 T.L.R. ^02 .,, ,„ 
 
 75' 79 
 
 B 
 
 Bacon v. Dawes, 3 T. L. R. 557 
 
 Baddeley v. Granville, 19 Q.B.D. 423 ; 57 L.T.N'.S. 268 ..... . 
 
 Badgerow v. The Grand Trunk Ry. Co. 19 Ont. 191 
 
 Barrow v. Wadkin, 24 Beav. 327 
 
 Bartonshill Coal Co. v. MoGuire, 3 Macq. 300 
 
 V. Reid, 3 Macq. 266 
 
 Baxter v. Wyman, 4 T.L. R. 255 
 
 Beckett v. Manchester Corporation, 52 J. P. 346 
 
 V. The Grand Trunk Ry. Co., 16 S.C.R. 713 
 
 Bickle V. Rogers (not reported) 
 
 Black V. Ontario Wheel Co., 19 Ont. 578 .28. 
 
 Blackman v. Toronto St. Ry., 38 U.c!q.B. 172 . ' 
 
 Blake v. Midland Ry. Co., 18 Q.B. 93 
 
 Bortick v. Head, 53 L.T.N.S, 909 
 
 Bourke v. Cork & Macroom Ry., Ir. L.R. 4 C.L. 682 
 
 Bound V. Lawrence, (1892) i Q.B. 226 
 
 Bradburn v. Great Western Ry., L.R. 10 Ex. 2 ; 31 L.T.N.S. 464 .... 
 Brannigan v. Robinson, (1892) i Q. B. 344 : 66 L.T.N.S. 647 .. . . . . .30, 42 
 
 Bridge v. The Grand Junction Ry., 3 M. & W. 244 ' ,g 
 
 Bridges V. Ontario Rolling Mills Co., 19 Ont. 731 ^g 
 
 Bromley v. Cavendish Spring Co., 2 T.L.R. 881 '„ 
 
 36 
 
 41.74 
 
 '30 
 
 54 
 
 7'. 73 
 
 75 
 
 38 
 
 102 
 
 '39 
 
 37 
 
 35. 36, 42. 72 
 
 '3« 
 
 ....127, 136 
 
 84 
 
 '35 
 
 23 
 . 85 
 
 } 
 
 Brooke v. Ramsden, 63 L.T. N.S 287 g^ 
 
Vlll. 
 
 TABI.K Ol'" CASKS CITKO. 
 
 PA(IK 
 
 Brown Ex. /»., 17 C^-I^- 48« '"j^i 
 
 V, Butterly Coal Co., 2 T.L.R. 159 
 
 53 L.T.N. S. 964 •*'' 
 
 Biunell V. Canadian Pacific Ry. Co., 15 Ont. 375 -^^ySb 
 
 Bulnier v. Buhner, 25 Ch. H. 409 '■^° 
 
 Bunker v. Midland Ry., 47 I-T.N.S. 476 ^ 
 
 Butler V. Birnbauni, 7 T. L. R. 287 
 
 Butterfield v. Forrester, 1 1 East. 60 70 
 
 C 
 
 Canada Southern Ry. Co. v. Jackson, .7 S.C.R. 316 .... .6. 39. .S4. 5.S 
 Canadian Pacific Ry. Co., v. Robinson, (1892) A.C. 481 ! 
 
 ^ I X V « cr,- 9". 129' '43 
 
 67 L.T.N. S. 50.-, 
 
 Canadian Pacific Ry. Co., v. Robinson, 14 S-CR. 105 ^37 
 
 Carter v. Drysdale, 12 g.B.D. 91 " 
 
 Charles v. Taylor, 3 C.P.D. 492 ; 38 L.T.N.S. 773 'J 
 
 Ciriack v. Merchants' Woolen Co.. 151 Mass. 152 7 
 
 Clarkson v. Musgrave, 9 g.B.D. 386 '°- 
 
 Claxton V. Mowlein, 4 T.L.R. 756 
 
 Coleman v. Ri';hes, 16 C.B. 104 ^ 
 
 ColUs V. Selden, L.R. 3 C.P. 49S ^ 
 
 Condliflf V. Condliff, 29 L.T.N.S. 831 ; 22 W.R. 3^5 '•+ 
 
 Connell v. Surrey Commercial Dock Co., 3 T.L.R. 630 33 
 
 Connolly v. Shives, 18 N.B.R. 606 9.^ 
 
 Conger v. Grand Trunk Ry, Co., 13 Ont. 160 9 - 4^ 
 
 Conway v. Clemence, 2 T.L.R. 80 ^-''^' I.rd' " 68V- ^6 
 
 Cook V. North Metropolitan Tramway Co., 18 O.H.U. t)»3 . 5° 
 
 „ lo, 22 
 
 L.T.N.S. 448 ,8 
 
 Coughlin V. Boston Tow Boat Co. , i5< Mass. 92 
 
 Corcoran v. East Surrey Iron Works. 5 T.L.R. 103 4 
 
 Coullard V. Tecumseh Mills, 151 Mass. 85 ^_ 
 
 Cox V. Great Western Ry.Co., 9 Q-B.D. 106 - M.^-..^ 
 
 Cox V. Hamilton Sewer Pipe Co., .4 Ont. 300 ^ ' ^-' J^ 
 
 Crawley v. Pacific Mills, 148 Mass. 228 7 
 
 Cripps V. Judge, 13 Q.B-D. 583 "^' 6 
 
 Crocker v. Banks, 4 T.L.R. 324 
 
TABLE OF CASKS CITED. 
 
 IX. 
 
 146 
 I I 
 
 140 
 50 
 
 7') 
 
 9. '43 
 '37 
 102 
 
 12 
 76 
 
 1 03 
 27 
 '7 
 '7 
 
 140 
 
 35 
 
 95 
 
 91, 142 
 
 33 
 6 
 
 . 18,22 
 18 
 40 
 ■ 76 
 • 54< 35 
 4q, 102 
 
 .. 76 
 
 • 29, 41 
 
 ., 76 
 
 D Page 
 
 Dalton V. South Kastern Ky. Co., 4 C.B.X.S. 206, i^^4, 135, 137, 139 
 
 Da vies v. Berwick, 3 El. i\; Kl. 549 19 
 
 V. Knglaiul, ^■i;i L.J. (J. B. 32 1 72 
 
 V. Mani), 10 iM. & \V. 546 79 
 
 Dean v. Ontario Cotton Mills Co., 14 OiU. 1 19 41 
 
 Devfrill v. Tiie Grand Trunk Ry., 25 L'.C.(^. B. 517 131 
 
 Dickinson v. North Eastern Ry. Co. 2 H. iV C. 735 124, 136 
 
 Dolan V. Anderson, 22 Sc. L. R. 529 150 
 
 Donahue v. Drown, 154 Mass. 21 38, 72 
 
 Donovan v. The Lain};- Wharton iS; Down Construction Syndicate, 
 
 94 L.T.J. 436 iiMa 1 3 
 
 Doug-hty V. Firbank, 10 Jj. B. D. 35S ; 48 L.T. N.S. 530 54 
 
 Duckworth v. Johnson, 4 H. & .\. 653 133, 135 
 
 Dyneii v. Leach, 2b L.J. Ex. 221 126 
 
 Elliott V. Tempest, 5 T.L.R. 154 27 
 
 Edwards v. Hutcheon, 16 Ret. 694 38, 74 
 
 Erdnian v. Walkerton, 22 Ont. 704 126 
 
 Farmer v. Grand Trunk Ry. Co., 21 Ont. 299 28, 56, 70 
 
 Favvkes v. Poison, 8 T.L.R. 725 42, 71 
 
 Finlay v. Miscanipbell, 20 Ont. 29 1 1, 34, 60 
 
 Forsyth v. Ramage, 18 Ret. 21 34 
 
 Forgan v. Burke, 1 2 Ir. C.L. 495 15 
 
 Franklin v. South Eastern Ry. Co., 3 H. & N. 211 134 
 
 Eraser v. Hood, 15 Ret. 1 78 39 
 
 G;ivin v. Rogers, 17 Ret. 206 39i "o 
 
 Gemmill v. Gourock Ry. Co., 23 Sc. Sess. Cas., 2nd Series, 425 76 
 
 George & Richard (The), L.R. 3 A. & E. 466 ; 20 W.R. 245 124 
 
 Gibbs v. Great Western Rv. Co., 12 Q.B.D. 208 55. 
 
 Gibson v. Midland Ry. Co., 2 Ont. 658 124, 136 
 
 Giles V. The Great Western Ry., 36 U.C.Q.B. 360 130 
 
 Gillett V. Fairbank, 3 T.L.R. 618 10 
 
 H 
 
 { 
 
 ill 
 
j5, TAHLK OK CASES CITED. 
 
 PAliK 
 
 Glover v. Dwight Mfg. Co., 148 Mass 22 7^ 
 
 Grainge.- v. Aynsley. 6 g.B.D. .82 , 4.I L.T.N.S 608 .2. 2.. ij 
 
 Grand Trunk Ry., v. Jennings. 13 A.C. 800! 59 I^-T.N.S. 679 8.v 138 
 
 Gray v. Thomson, 17 Ret. 200 S3 
 
 Greenhalgh v. Cwmaman Coal Co., 8 T.L.R. 31 73. 74 
 
 Griffiths V. Dudley. 9 QB-D. 357 i 47 L.T.N.S .0 93. i^^ 
 
 Grizzle v. Erost, 3 F. & F. 622 7.S 
 
 Groves v. Fuller, 4 T.L.R. 474 "''' 
 
 H 
 
 Haigh V. Roval Mail Steam Piicket Co., 52 L.J.Q.B. 640 >a6 
 
 Hamilton v. Groesbeck, 19 Ont. 76 ; 18 Ont. .'Xpp. 437 38. 42. 74 
 
 Harris v. Tinn, 5 T.L.R. 221 "^^ 
 
 Hay ward V. Phoenix, 2 T.L.R. 604 
 
 Headford v. McClary Mfg. Co., 29 C.L.J. 201 33 
 
 Hearn v. Phillips, 1 T.L.R. 475 '°^ 
 
 Heaven v. Pender q Q.B.D. 302 ; 47 L.T.N.S. 163 35 
 
 Hedley v. Pinkney, S. S. Co., 8 T.L.R. 61 4^. 48 
 
 Henderson v. Carron Co., 16 Ret. 633 39. 77 
 
 Heske v. Samuelson, 12 Q.B.D. 30 ; 49 L.T.N.S. 474 29 
 
 Hetherington v. North Eastern Ry. Co., 9 Q.B.D. 160 US 
 
 Hicks v. The Newport .Vc. Ry. Co., 4 B. & S. 403 '39 
 
 Highland .Avenue & Belt Railroad Co. v. Walters, 91 Ala. 435. . . .75. 80, 83 
 
 Holleran v. Bagnell, Ir. L.R. 4. CL. 740 '35. '46 
 
 Holmes V. Clarke, 31 L.J. Ex. 356 '' 
 
 Horton v. Edinburgh S. T. Co., 14 Ret. 621 39 
 
 Howard v. Bennett, 60 L.T.N.S. 152 27, 49 
 
 Howe V. Finch, 17 Q.B.D. 187 3'. 32. 34. 43 
 
 Hughes Ex.p., 23 L.J.M.C. 138 ^■:; „ ' o ^o 
 
 Hunt V. Great Northern Ry., (.891) i Q.B. 601 ; 64 L.T.N.S. 418 18 
 
 Hutchinson v. York, Newcastle& B. Ry. Co., 5 Ex. 343; 15 ^T.O.S. 230 75 
 
 I 
 
 lies V. Abercarn Welsh Flannel Co., 2 T.L.R. 547 37- 4'. 79 
 
 Indianapolis & St. Louis Ry. Co., v. Stout, 53 Ind. 138 129, 130 
 
 Ingram v. Barnes, 7 El. & Bl. 115, 132 '° 
 
 Irwin V. Dennvstown Forge Co., 22 Sc. L.R. 379 7' 
 
 
76 
 
 ;, "38 
 
 53 
 '3.74 
 
 I, 12(1 
 
 75 
 31) 
 
 TABLE OF CASES CITED. xl. 
 
 J Pack 
 
 Jackson v. Hill, 13 Q.B.D. 618 31 
 
 V. Hyde, 28 U.C.g.B. 294 130 
 
 Johnson v. Lindsay, (1891) A.C. 371 5, 6 
 
 Johnston v. Mitchell, 22 Sc. L. R. 698 ji; 
 
 Jones V. Burford, 1 T. L. R, 137 37, 40, 43 
 
 V. Liverpool, 14 Q.B.D. 890 1 1 
 
 V. Sandycroft Colliery Co., 83 L.T. Jour. 406 71 
 
 V. The Grand Trunk Ry., 45 U.C.Q.B. r93 131 
 
 K 
 
 Kay V. Brigtfs, 5T.L.R. 233 j8 
 
 Kearney v. Nicholls, 76 L.T. Jour. 63 45 
 
 Keen V. Mil wall Dock Co., 8 g.B.D. 482 J 46 L.T.N. S. 472 loi 
 
 Kellard v. Rooke, 21 Q.B.D. 367 9, 45, 49 
 
 Kettlewell v. Paterson, 24 Sc. L.R. 95 42 
 
 Kiddle v. Lovett, i(j Q.B.D. 605 ^-, 72 
 
 L 
 
 Lampan v. Gainsborough, 17 Ont. 191 146 
 
 Lang V. House to House Electric Lighting Co., 94 L.T.J. 441 — adda.. 79 
 
 Lawlor v. Linden, Ir.R. 10 C.L. 188 13 
 
 Leev. Lancashire & Yorkshire Ry. Co., L.R. 6Ch. 527 ; 25L.T. \.S. 77. 94 
 
 Leech v. Gartside, 78 L.T. Jour. 427 ; 1 T. L.R. 391 21 
 
 Leggott V. Great Northern Ry. Co., i Q.B.D. 599 137 
 
 Levering v. St. Katharine's Dock Co. 3 T. L. R. 609 12 
 
 London v. Great Southern & Western Ry. Co., 16 Ir. C.L.R. 415 136 
 
 Louisville & Nashville Ry. v. Allen, 78 Ala. 494 39. M" 
 
 Lowther v. Radnor, 8 East. 1 24 19, 20 
 
 M 
 
 McCloherty v. The Gale Manufacturing Co., 19 Ont. App. 117 37> 74 
 
 McColl v. Black, 18 Ret. 507 34 
 
 McDonald v. McFee, 16 N.B.R. 159 71 
 
 McEvoy V. Waterford Steamship Co., 18 L.R. Ir. 159 27 
 
 McGiffin V. Palmer, 10 Q.B.D. 5; 47 L.T.N.S. 346. 28, 29, 36 
 
•'.I 
 
 xii. TABLE OF CASES CITED. 
 
 PAtlE 
 
 McGovan v. Tancred, 13 Sc. Sess. Cas. 4th. Series 103 ;} '02 
 
 McGuire v. Cairns, 17 Ret, 540 ^9. 35. 7". 73 
 
 McManus v. Crickett, i East 106 '7 
 
 V. Greenwood, 79 L.T. Jour. 160 3°^ ^^ 
 
 McMillan v. Walker, 21 N.B.R. 31 ^' 
 
 McShane v. Baxter, 7 T.L.R. 58 ■''+ 
 
 Madden v. The Hamilton Iron Forging Co., iS Ont. 53 4«> 
 
 M?son V. Bertram, 18 Ont. i '°'' 'J"* 
 
 May V. Bartle, 90 L.T. Jour. 411 5 
 
 Milward V. Midland Ry. Co., 14 Q.B.D. 68 ; 52 L.T.N.S. 255 4» 
 
 Mitchell V. Crassweller, 13 C.B. 237 '7 
 
 V. FatuUo, 23 Sc. L.R. 207 3t«, 74 
 
 Montreal, City of, v. Labelle, 14 S.C.R. 741 '-^7 
 
 Mooney v. Connecticut River, 154 Mass. 407 3 
 
 Moore V. Gimson. 5 T.L.R. 177 ^''-^^ 
 
 Morgan v. Hutchings, 6 T.L.R. 219 37- 4'. 75 
 
 Morean v. London General Omnibus Co., 13 Q.B.D. 832 ; 51 
 
 L.T.N.S.2.3 '"*-■"•" 
 
 Morley v. Great Western Ry. Co., 16 U.C.Q.B. 504 '39 
 
 Murphy v. Phillips, 35 L.T.N.S. 477 ^ ' ' ' 
 
 V. Wilson, 48 L.T.N.S. 788 ; 52 L.J.Q.B. 524 -=>•+ 
 
 Murray v. Currie, L.R. 6 C.P. 24 ; 23 L.T.N.S. 557 " 
 
 N 
 
 Nicholl V. Greaves, :i^^ L.J. C.P. 259 '5 
 
 Nicolson V. Mac.\ndre\v, 15 Ret. 854 37. 4^ 
 
 Nowlan v. .\blett, 2 C. M. & R. 54 ''^' '•'' 
 
 O 
 
 O'Brien v. Sandford, 22 Ont. 136 75. 7^ 
 
 Ogle V. Morgan, 1 D.G.M. & G. 3.59 : "8 L.T.O.S. 296 H 
 
 O'Neill V. Everest, 8 T.L.R. 426 ^9 
 
 Ormerod. Ex fi. i D. & L. 825 ; 8 Jur. 495 ^' 
 
 Ormond v. Holland, El. Bl. & El. 102 75 
 
 Osborn V. Gillett, L.R. 8 Ex. 88 '^5. >32 
 
 Osbornev. Jackson, ..Q.B.D. 6.9: 48 L.T.N.S. 642 9.46 
 
TABLE OK CASES CITED, 
 
 Xlll. 
 
 Pagk 
 
 Ovington v. Mc Vicar, 2 Macph. 1066 28 
 
 Owens V. Maudslay, 72 L.T. Jour. 299 85 
 
 T 
 
 Paley v. Garnett, 16 Q.B.D. 52 29, 39 
 
 Pejjrain v. Dickson, 55 L.J.Q.B. 447 33 
 
 Perry v. Brass, 5 T.L.R. 253 37, 41-43 
 
 Pooley V. Hicks, 5 T.L. R. 353 40 
 
 Potts V. Fort Carlisle Dock & Ry. Co., 2 L.T.N. S. 283 28 
 
 Pratt V. Prouty, 153 Mass. 333 76 
 
 Previdi v. Gatti, 58 L.T.N. S. 762 102 
 
 Previsi v. Gatti, 4 T. L. R. 487 33-75 
 
 Priestley v. Fowler, 3 M. & VV. 1 4 
 
 Pritchard v. Lang, 5 T. L. R. 639 34 
 
 Pulling V. Great Eastern Ry., 9 Q.B.D. 1 10 27, 134 
 
 Pym V. The Great Northern Ry. Co., 2 B. cV S. 759 ; 6 L.T..\.S. 537 ; 
 
 31 L.J.Q.B. 249 134 
 
 4 B. iV S. 396; 8 L.T.N.S. 734. . 127 
 
 IS I 
 
 u 
 
 c 
 
 Queen, The, v. Martin, 20 S. C.R. 240 131 
 
 R 
 
 Ray V. Wallis, 3 T.L.R. 777 47 
 
 Read v. The Great Eastern Ry. Co., L.R. 3 Q.B. 555; 37 L.J.Q.B. 
 
 278 ; 18 L.T.N.S. 822 93, 126, 129 
 
 Reg V. Martin, 20 S.C.R. 240 131 
 
 Riley v. Baxendale, 30 L.J. Ex. 87 134 
 
 Roberts v. Tottenham Lager Beer Co., 6 T.L. R. 4 47 
 
 Robinson v. Canadian Pacific Ry. Co. (1892) A.C. 481 ; 67 L.T.N.S. 505. 126 
 
 Ross V. Cross, 17 Ont. App. 29 28, 42 
 
 Rourke V. The White Moss Colliery Co., 2 C.P.D. 305; 36 L.T.N.S. 49. . 1 1, 13 
 
 Riidd V. Bell, 13 Ont. 47 3 
 
 Ruth V. Surrey Com'l Dock Co., 8 T.L. R. 1 16 12, 21 
 
 Ryalls V. Mechanic's Mills, 150 .Mass. 190 18 
 
Iil 
 
 T 
 
 '•h 
 
 xiv. TABLE OF CASES CITED. 
 
 S Page 
 
 Sadler v. Henlock, 4 El. .V Bl. 570 "» '7 
 
 St. Lawrence .V Ottawa Ry. Co. v. Lett, 1 1 S.C.R. 422 136, i37 
 
 Sanders v. Baker, 6 T.L.R. 324 38. 82 
 
 Sanderson v. Sanderson, 36 L.T.N.S. 847 '40 
 
 Searle v. Laverick, L.R. 9 Q,B. 122 35 
 
 Secord v. Great Northern Ry. Co., 15 U.C.Q.B. 631 i39 
 
 Senior v. Ward, i El. & El. 385 ; 28 L.J.Q.B. 139 39. 126 
 
 Seward v. The Vera Cruz, 10 App. Cas. 70 '29 
 
 Seymour v. Maddox, 16 Q.B.D. 326 75 
 
 Shaffers V. The General Steam Navigation Co., 10 Q.B.D. 356; 48 
 
 L.T.N.S. 228 9. 44. 45 
 
 Shallow V. Vernon, 9 Ir. C.L.R. 150 '4° 
 
 Sharp V. Fathead Spinning Co., 12 Ret 574 75 
 
 Sibbald V. The Grand Trunk Ry. Co., 19 Ont. 164 ; 18 Ont. App. 184 ; 
 
 20S.C.R. 259 136, 137. '40 
 
 Sleath V. Wilson, 9 C. & P. 607 '7 
 
 Smith V. Baker, (1891) A. C. 325 ; 65 L.T.N.S. 467. .30, 32. 7«. 73. 74. 81, 82 
 
 V. Harrison, 5 T.L.R. 406 38 
 
 V. Williamson, 13 P.R. 126 '46 
 
 Snowden V. Bavnes, 25 Q.B.D. 193 5' 
 
 South Staffordshire Tramway Co. v. Sickness & Accident Assurance 
 
 Co., (1891) I Q.B.D. 402 90 
 
 Springett v. Balls, 6 B. & S. 477 '37 
 
 Steel V. South Eastern Ry. Co., 16 C.B. 550 '7 
 
 Stevens v. Woodward, 6 Q.B.D. 318 '7 
 
 Stevenson v. Pontifex, 15 Ret. 129 '28 
 
 Stewart v Coltness Iron Co., 4 Ret. 952 28 
 
 Stone v. Hyde, 9 Q.B.D. 76 '02 
 
 Storey v. Ashton, L.R. 4Q-B- 47^ '7 
 
 v. Veach, 22 C. P. 164 '3' 
 
 Stuart v. Fvans, 49 L.T.N.S. 138 16, 24, 78, 82 
 
 Sutton v. Stead, 3 T.L.R. 499 3^ 
 
 Swainson v. North Eastern Ry. 38. L.T.N.S. 201 ' ', >7 
 
 Sweeney v. McGilvray, 14 Ret. 105 49 
 
 Sweeny v. McGilvray, 24 Sc. L. R. 91 4^ 
 
 Sword V. Cameron, i Ct. Sess. Cas. 2nd Series, 493 73 
 
 Sykes v. North Eastern Ry Co., 44 L.J.C.P. 191 '34. '35 
 
TABLE OF CASES CITED. XV. 
 
 T Page 
 
 Tarrant v. Webb, i8 C. B. 797 -jc 
 
 Tennessee C. & I. R. Co. v. Kyle, 93 Ala. i 55 
 
 Thomas v. Quartermaine, 18Q.B.D. 685; 57 L.T.N.S. 537. . .4, 32, 40, 57, 78 
 
 Thompson v. Wright, 22 Ont. 1 27 2, 37, 74 
 
 Thrussell »r. Handyside, 20 Q.B.D. 359 ; 58 L.T.N.S. 344 82 
 
 Tinkham v. Sawyer, 153 Mass. 485 76 
 
 Todd V. Kerrich, 8 Ex. 151 1 = 
 
 Toms V. Whitby, 35 U.C.Q.B. 195 140 
 
 Tucker v. Chaplin, 2 C. & K. 730 126 
 
 Turner v. Great Eastern Ry. Co., 33 L.T.N.S. 431 1 1 
 
 V 
 
 Varley v. Birley, 26 Sol Jour. 467 12 
 
 Vose V. Lancashire & Yorkshire, 27 L,J. Ex. 249 81 
 
 ^ 
 
 W 
 
 Waite V. North Eastern Ry., El. Bl. & El. 728 ; 28 L.J.Q.B. 25S 126 
 
 Wakelin v. London & S. W. Ry., 12 App. Cas. 41 ; 55 L.T.N.S. 709. . . 79 
 
 Walsh V. Nattrass, 19 C.P. 453 131 
 
 Walsh V. Whitely, 21 Q.B.D. 371 36,74 
 
 Warburton v. The Great Western Railway Co., L.R. 2 Ex. 30 i 15 
 
 L.T.N.S. 36 - 
 
 Watling V. Oastler, L. R. 6 Ex. 73 28 
 
 Webb V. Rennie, 4 F. & F". 608 71, 72 
 
 Weblin V. Ballard, 17 Q.B.D. 122 ; 54 L.T.N.S. 532.. 4, 41, 57, 77, 78, 79,83 
 
 Webster v. Foley, 29 C. L.J. 159 adda 73 
 
 Weems v. Mathieson, 4 Macq. 215 28, 7 1 
 
 Weir V. Cultness Iron Co., 16 Ret. 614 124, 136 
 
 Wells V. Abraham, L. R. 7 Q. B. 554 131 
 
 Whatley v. Holloway, 62 L.T. N.S. 639 27, 49, 53 
 
 White V. Parker, 16 S.C.R. 699 86,127,130 
 
 Whitely v. Armitage, 13 W.R. 144 21 
 
 Wiggett V. Fox, 1 1 Ex. 823 6 
 
 Wild V. Waygood, (1892) i Q.B. 783 ; 66 L.T.N.S. 309 10, .3, 27, 47,49 
 
 Willetts V. Watt, (1892) 2 Q.B. 92 ; 66 L.T.N.S. 818 2q, 30 
 
 
WTIK^W^ 
 
 xvi. TABLE Ol- CASKS CITED. 
 
 I'ACiK 
 
 Williams V. Clough, 27 L.J. Ex. 325 ^7^ 
 
 V. Robinson, 20 C. P. 255 •' 
 
 V. VVhittall, 80 L.T. Jour. 101 -^ 
 
 Wilson V. Boyle, 17 Ret. 13.31 ;^ • / :. "^^'H 
 
 V. Merry, L.R. < Sc. App. 3^6 : .9 L.T.N. S. 30 -«. /^ 
 
 Witherley v. The RcKenls Canal Co. 12 C.B.N.S. 2 J -^ 
 
 Wood v.'Dorr.ill, 2 T.L.R. 55° ^ ^^ " " ■^-' ^-J 
 
 V. Gray, (.802) A.C. 376; 67 L.T.N.S. 628 86. .28, ..,0 
 
 V. Pittfield, 26 N.H.R. 210 ,"t V « '' 
 
 Woodlev V. Metropolitan District Ry. Co., 2 Ex. D. 384 ? 3^ l^- IN-^'- 
 
 o2 
 
 j^ig 
 
 Woodward Iron Co. v. Jones, 80 Ala. 1 23 79 
 
 Wright V. Collier, 19 Ont. App. 298 " + 
 
 Wyatt V. Rosherville Gardens Co., 2 T.L.R. 282 'o? 
 
 Y 
 
 Yarmouth v. France, 19 Q. B. D. 647 -•^' ■'''' 
 
 Z 
 
 Zimmer v. The Grand Trunk Ry., .9 Ont. App. 693 9'. '^9. '4^, ' +.^ 
 
T 
 
 '3' 
 . 38 
 • 40- 73 
 ■ ^8, 75 
 . 126 
 
 82 
 
 79 
 114 
 107 
 
 ABBREVIATIONS IN THIS WORK 
 
 '^ ■ j . . . . English Law Reports, Appeal Cases. 
 
 (1891) A. C English Law Reports, Appeal Cases for 1891. 
 
 (i892)A. C English Law Reports, Appeal Cases for 1892. 
 
 Ala Alabama Reports. 
 
 B. iV S Best & Smith's Reports. 
 
 Beav Beavan's Reports. 
 
 C. A Covirt of Appeal. 
 
 C. B English Common Bench Reports. 
 
 C. B. \. S English Common Bench Reports, New Series. 
 
 Ch. D English Law Reports. Chancery Division. 
 
 C. L. J Canada Law Journal. 
 
 C. M. iSi R Crompton, Meeson «S: Roscoes Reports. 
 
 C. i\: K Carrington & Kirwan's Reports. 
 
 C, P Upper Canada Common Ple.is Reports. 
 
 C. & P Carrington & Payne's Reports. 
 
 C. P. D English Law Reports, Common Pleas Division. 
 
 D. G. M. G DeGex, McNaghten & Gordon's Reports. 
 
 D. & L Dowling & Lowndes' Reports. 
 
 East East's Reports. 
 
 ^|- '?^ Si I .... Ellis & Blackburn's Reports. 
 El. iV Bl. ( ' 
 
 El. Bl. &E\ Ellis, Blackburn & Ellis' Reports. 
 
 Ex English Exchequer Reports. 
 
 P'. & F Foster & Finlason's Reports. 
 
 Gr Grant's Reports (Ontario). 
 
 H. & C Hurlslone & Coltman's Reports. 
 
 H. & X Hurlstone & Norman's Reports. 
 
 Holmested & Langton . Holiiiested & Langton's Edition of the Ontario 
 
 Judicature Act and Consolidated Rules. 
 
 ■f 
 
 til 
 
 15 
 
ll'f 
 
 XVlll. 
 
 ABBREVIATIONS IN THIS WORK. 
 
 •t; 
 I r 
 I : 
 
 • t 
 
 Ind Indiana Reports. 
 
 Ir. R. C. L Irish Reports, Common Law Cases. 
 
 Ir. C. L Irish Common Law Reports. 
 
 |. p EngWsh Justice of t/ie Peace. 
 
 Jiir English Jurist Reports. 
 
 L. J. M. C English Law Journal, Magistrate Cases. 
 
 L. J. C. P English Law Journal, Common Pleas Cases. 
 
 1„ J. Q. B English Law Journal, Queen's Bench Cases. 
 
 L. J. Q. B. D English Law Journal, Queen's Bench Division 
 
 Cases. 
 
 L. R. A. & E English Law Reports, Admiralty and Ecclesias- 
 tical Cases. 
 
 L. R. C. P English Law Reports, Common Pleas Cases. 
 
 L. R. Ex English Law Reports, Exchequer Cases. 
 
 L. R. Q. B English Law Reports, Queen's Bench Cases. 
 
 L. R. H. L. Sc. App. . English Law Reports, Scotch Appeal Cases. 
 
 L. R. Sc. .\pp. . . . English Law Reports, Scotch Appeal Cat -is. 
 
 L. R. Ir. Law Reports (Ireland). 
 
 L. T. Jour English Law Times Journal. 
 
 L. T. N. S English Law Times Reports, New Series. 
 
 L. T. O. S English Law Times Reports, Old Series. 
 
 M. ^vt W Meeson's & Welsby's Reports. 
 
 Macq Macqueen's Reports. 
 
 Macph Macpherson's Reports. 
 
 Mass Massachusetts Reports. 
 
 Minton-Senhouse . . The Employers' Liability Act, 1880, with notes, 
 
 by Minton-Senhouse (1892). 
 
 \_ B. R New Brunswick Reports. 
 
 Out Ontario Law Reports. 
 
 Ont. .App Ontario .\ppeal Reports. 
 
 Q. B English Queen's Bench Reports. 
 
 (1891) Q. B English Law Reports, Queen's Bench Division, 
 
 1891. 
 
 (1892) Q. B English Law Reports, Queen's Bench Dr; .-•. 
 
 1892. 
 
 ill 
 
ABBREVIATIONS IN THIS WORK. xix. 
 
 Q. B. D English Law Reports, «^ueen's rench Division. 
 
 Ret Scotch Court of Sessions Cases, 4tli Series. 
 
 R. S. O Revised Statutes of Ontario, 1887, 
 
 Roberts & Wallace . . The Duty and Liability of Employers, by Roberts 
 
 & Wallace (1885). 
 
 S. C. R Supreme Court of Canada Reports. 
 
 Sc. L. R Scotch Law Reporter. 
 
 Sc. Sess. Cas Scotch Court of Sessions Cases. 
 
 Sol. Jour English Solicitors' Journal. 
 
 Spens & Younger . . Employers and Employed, by Spens iS: Vounjfer 
 
 (1887). 
 Statutes followed by 
 
 "[D]." Statute of the Dominion of Canada. 
 
 Statutes followed by 
 
 "(O)." Statute of the Province of Ontario. 
 
 T. L. R English Times Newspaper Law Reports. 
 
 U. C .Q. B Upper Canada Queen's Bench Reports. 
 
 V. • . . .... Victoria. 
 
 Vict Victoria. 
 
 W. C. L Act .... Workmen's Compensation for Injuries Act, iSifj. 
 
 W. R English Weekly Reporter. 
 
 \ 
 
 5 
 
 'J 
 
!i: 
 
 ir i 
 
 (I . 
 rl : 
 
 •t ; 
 
 H 
 
 bly 
 foil 
 
S') VICTORI/E, CHAPTER 30. 
 
 An Act to Consolidate the Acts Respecting 
 Compensation to Workmen in Certain Cases. 
 
 Short title, s. 1. 
 Interpretation, s. 2. 
 Claims against employers, ss. 3, 4. 
 Injury by railways, s. 5. 
 Compensation : 
 Exceptions negativing right to recover. Provisos. 6. 
 Limit of amount, s. 7. 
 
 How compensation may be distributed, s. 8. 
 Limit as to lime for recovery, s. 9. 
 Defences in actions for compensation, s. 10. 
 
 Liability of personal representative, s. 11. 
 Deduction of penalties from compensation, s. 12. 
 Notice of injury, s. 13. 
 
 Defence of want of notices, s. 14. 
 Particulars of demand, s. 15. 
 Appointment of assessors, s. 16. 
 Consolidation of actions, s. 17. 
 Computation of time, s. 18. 
 Forms and rules, s. 19. 
 Saving clause, s. 20. 
 
 
 
 TIER MAJESTY, by and with the advice 
 ^ ^ and consent of the Legislative Assem- 
 bly of the Province of Ontario, enacts as 
 follows : — 
 
a 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 •l! ; 
 
 ,<:> 
 
 II., 
 «: 
 
 I. 
 i: 
 
 Section I. ^^ This Act may be known and cited as 
 Short i itie. ' ' The Workmcn 's Compensation for In- 
 juries Act^ i8g2. " 
 
 The English statute (43 & 44 Vict. c. 42) which 
 furnished the basis of this Act, is known as the 
 " Employers' Liability Act, j88o." 
 
 This statute is not in all respects the same as the 
 English statute, and the more important diflferences 
 between them will hereafter be pointed out : and in 
 considering the English authorities it will be neces- 
 sary to bear these differences in mind. 
 
 Previous '^^^ ^^^^ Statute on this subject passed in Ontario 
 
 Legislation, was 49 Vict. c. 28, and was in effect same as the 
 English Act. This was carried into the R.S.O. 
 (1887) as c. 141, which was subsequently amended 
 by 52 Vict. c. 23 (O). The Revised Statute and the 
 Amending Act were then repealed by this Act, which 
 consolidates the law on this particular subject. 
 
 State of the Prior to the passing of this Act a master was not 
 Law prior to f^ge from all liability to his servant for injuries 
 sustained by him in the course of his employment, 
 but in order to make him liable it was necessary to 
 bring home to him some personal negligence. The 
 omission to provide proper materials and resources 
 for the work : Thompson v. Wright^ 22 Ont. 127, such 
 as engines and scaffolding or proper material for 
 cleaning and oiling engines, etc., or negligence in the 
 choice of the pers jns to whom he entrusted the supply 
 of such materials, or the arrangement of such works ; 
 
 or SI 
 
THr workmen's compensation for injuries act. 
 
 or want of care in the selection of proper servants, Section i. 
 
 would render the master personally liable, at common 
 
 law, for any injury resulting to his servant from 
 such negligence. Owing, however, to the growth of 
 industries, it has in modern times beco.tie practi- 
 cally impossible for many employers to se3 to all 
 these things personally, and the duty is m conse- 
 quence largely delegated to subordinates; and 
 inasmuch as the doctrine of " Common Employment " 
 was extended to such subordinates, the workmen 
 were practically deprived of any remedy for injuries, 
 inasmuch as the subordinates, though personally 
 liable for their negligence, were in general unable 
 to meet the liability, while the employers were by 
 this doctrine practically shielded from all responsi- 
 bility : Rtidd V. Bell. 13 Ont. 47 ; (see Spens & 
 Younger, pp. 119-123). It was to remedy this 
 state of things that this statute was passed. 
 
 The effect of this Act is to take away from an 
 employer the defence of "common employment," 
 where the injury has resulted to his servant from 
 the negligence of any fellow servant who is in the 
 position of foreman or superintendent whilst acting 
 in the discharge of his duties as such foreman or 
 superintendent : see post s. 3. s.ss 2, 3 ; and in the 
 case of railway servants entitled to the benefit of this 
 Act, where the injury has resulted to the servant 
 from the negligence of fellow servants having the 
 charge or control of any points, signal, locomotive, 
 engine, machine, or train, upon a railway, tramway 
 or street railway : sqq post s. 3, s.s. 5. 
 
 A 
 
 i 
 
r 
 
 ■c ■ 
 irw; 
 
 
 -c: 
 
 4 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 Section i. This defence of common employment was one that 
 
 Defence of ^^^ based on the maxim, Volenti non Jit injuria. 
 Common •* By entering into a contract of service, the Com- 
 mp oymen . ^^^ ^^^ inferred that he {the workman) had taken 
 on himself the ordinary risks incident to such busi- 
 ness as was lawfully carried on upon his master's 
 premises ; and the much canvassed case of Priestley 
 V. Fowler, 3 M. & W. i, and a series of decisions 
 following in its train had engrafted on this doctrine 
 the grave corollary that the negligence of a fellow- 
 servant in the common employ of the master was 
 one of such ordinary risks": (per Bowen, L. J., 
 Thomas v. Qitartermaine, 18 Q. B. D. 691 ; 57 L. T. 
 N. S, 542). But though the Act has deprived the 
 employer of the defence arising from that particular 
 development of the maxim, it must not be assumed 
 that the maxim itself is altogether abrogated as 
 regards cases coming within the provisions of the 
 Act. 
 
 The Act places a workman in as good a position 
 as, but in no better than, the rest of the world 
 who use his master's premises see per Fry, L. J., 
 in Thomas v. Qttartermaine, supra ; and see Weblin 
 V. Ballard, 17 Q. B. D. 122 ; 54 L. T. N. S. 532 ; 
 and where an employee incurs an injury under cir- 
 cumstances which would make the maxim volenti 
 non fit injuria applicable, if the injury had been 
 incurred by a stranger lawfully on the master's 
 premises, it is still a good defence to an action by the 
 employee : Thomas v. Qtiartermaine, supra. 
 
 But even at common law it is necessary in order 
 that the defence of "common employment" should 
 
 resi 
 the I 
 mer 
 
 Ry. 
 
 can! 
 
 othJ 
 
 subj 
 
THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 L. J., 
 
 
 be applicable, that the servant by whom the injury Sgj,ji„„ 
 
 is inflicted, and the servant who is thereby injured, 
 
 should not only be engaged in the performance of the 
 same, or a common work, but that they should both 
 be servants of the same master. Thus, where a firm 
 of builders contracted with a landowner to build 
 certain houses, and the contract provided that the 
 defendants (a firm of iron founders, selected by the 
 landowner's architect) should construct a fire-proof 
 roofing on the houses, for which the defendants 
 agreed to pay, and also provide scaffolding and 
 other assistance for the performance of the work, and 
 the defendants employed and paid and controlled 
 their own workmen, and in the course of the work the 
 plaintiff (one of the builders' workmen) was injured 
 by the negligence of one of the defendants' workmen, 
 and thereupon sued the defendants for damages. 
 The House of Lords held that the defence of 
 common employment was inapplicable, inasmuch as 
 the plaintiff and the workman who did the injury were 
 not servants of the same master : Johnson v. Lindsay 
 (1891), A. C. 371. It will thus be seen that where 
 the workmen of different masters are engaged upon 
 the same work, neither master can shield himself 
 from liability for the negligence of his own workman, 
 resulting in injury to the workman of the other, on 
 the ground of the common employment of the work- 
 men : lb ; and see Warburton v. The Great Western 
 Ry.y L. R. 2 Ex. 30; 15 L. T. N. S. 367; neither 
 can the workman of the one master claim to hold the 
 other master liable as his employer, unless he has 
 submitted himself to the control of the latter and 
 
 A 
 
 I 
 1 
 
 
Ilk! : 
 
 iir.i ; 
 
 
 Section i. 
 
 Application 
 of Act. 
 
 Interpreta- 
 tion 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 become pro tempore his servant. In Wiggett v. Fox, 
 II Ex. 823, it was held that for the p'Tpose of the 
 doctrine of common employment a sub-contractor 
 and his servants must be deemed to be the servants 
 of the contractor by whom the sub-contractor is em- 
 ployed, but the case was subsequently explained by 
 Channel B. in Abraham v. Reynolds, 5 H. & N. 143. 
 150, as having proceeded on the ground that it was 
 proved that the deceased workman (a servant ot a 
 sub-contractor) had been actually paid by, and was 
 under the control of the contractors, and it is only 
 upon this ground that the case of Wiggett v. Fox 
 would appear to be now of any authority ; see Johnson 
 V. Lindsay, supra. 
 
 The Act is held to apply to railway companies 
 under the control of the Dominion Parliament: 
 Canada Southern Railway Co. v. Jackson, 17 S.C.R., 
 316 ; and a fortiori it applies to those under the 
 control of the Ontario Legislature. 
 
 The Act only applies to injuries sustained on or 
 after the 14th April, 1892. As to injuries sustained 
 before that day, the former statutes, which by this 
 Act are repealed, are continued in torce ; see 
 post, s. 20. 
 
 2. Where the following words occur in 
 
 this Act, they shall be construed in the 
 
 manner hereinafter mentioned, unless a 
 
 contrary intention appears : — 
 
 • (i) " Superintendence" («) shall be con- 
 
 SL'nTng'of strued as meaning such general superintend- 
 
 .> . ■> 
 
 ai.x. 
 
THE WORKMEN S COMPENSATION FOR INJURIES ACT. 7 
 
 ence over workmen as is exercised bv a^^«=*'«'" 2. 
 
 ■' S.SS. 2, 3. 
 
 forer^' n, or person in a like position to a — 
 foreman, whether the person exercising 
 superintendence is or is not ordinarily 
 engaged in manual labour. 52 V., c. 23, 
 
 s. 2 (3). 
 
 (2) " Employer" (6) shall include a body " Employer " 
 of persons corporate or unincorporate, [and 
 also the legal personal representatives of a 
 deceased employer, and the person liable 
 to pay compensation under section 4 (r) of 
 this Ace] R. S. O. 1887, c. 141, s. 2 (2). 
 52 v., c. 23., s. 2 (4). 
 
 (3) " Workman "(«). does not include a"Workman" 
 domestic or menial servant,^ but, save as^.^^,,^^ ^- ,^jJi^^,u -««i 
 aforesaid, means any railway servant, (e) y**'^ ca,^^^*.^ ^-«l»-7«***j 
 and any person who, being a labourer, (/) ^"^ZC^^^ !^cSV^ 
 servant iti liii'ilhii^^, {g) journeyman, [h) /u^o^ /<k-^ av^^ ^^ 
 artificer, handicraftsman, (?) miner, or <'«-'«-«-«.-^ a-t^wv-wA <^'« 
 otherwise engaged in manual labour, (/) ''^^irr^ ^ 
 
 
 i 
 
 fU^ 
 
 
 o/ljtr>''%*J^^*M^ an »**• 
 
 ■■K,'u»/-oi*-fc/' 
 
 
 ^ CC^^Claaao^ *V ^^'''-^-*^' 
 
 whether under the agt of twenty-one years, 
 or above that age, has entered into or 
 works under a contract with an employer, 
 whether the contract be made before or 
 after the passing of this Act, be express,or 
 implied, oral or in writing, and be a con-(*^^'**^''^-'^^ *^^*^' 
 
 ..(..<. ^v. <*'lt>-4 
 
 ■^.^riteJ a.^i-' f\j^--^ v ^^e^^' 
 
 . . ^Mi,, I.) 
 
Ml', 
 C'.t 
 
 «::: • 
 t:;': 
 
 a:: 
 
 8 
 
 Section 2. 
 s.ss. 4, 5. 
 
 " Packing' 
 
 " Railway 
 servant" 
 
 *' Superin- 
 tendence," 
 meaning of 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 tract of service (k) or a contract personally 
 to execute any work or labour. 
 
 (4) " Packing" (/) shall mean a packing of 
 wood or metal, or some other equally sub- 
 stantial and solid material, of not less than 
 two inches in thickness, and which, where 
 filled in, shall extend to within one and a 
 half inches of the crown of the rails in use 
 on any railway, shall be neatly fitted so as 
 to come against the web of such rails, and 
 shall be wdl and solidly fastened to the ties 
 on which such rails are laid. R. S. O. 
 1887, c. 141, s. 2 (3-4). 
 
 (5) " Railway servant" (m) shall mean and 
 include a railway servant, tramway servant 
 and street railway servant. R. S. O. 1887, 
 c. 141, s. 2. 52 v., c. 23, s. 2. 
 
 («) '^ Stiperintendence." The meaning given to 
 this word, is an extension of that to be found in the 
 Imperial statute. In that Act, s. 8, the following 
 definition is given: "The expression 'person who 
 has superintendence intrusted to him,' means a per- 
 son whose sole or principal duty is that of superin- 
 tendence, and who is not ordinarily engaged in 
 manual labour." 
 
 It will be noticed that the English Act excludes 
 from superintendence, within the meaning of the Act, 
 
T 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 meaning' of 
 
 any person ordinarily engaged in manual labour Section 2. 
 whereas this Act expressly includes any such person *' ' ^' '' 
 when acting as a foreman, or in a like position to a "Superin- 
 foreman. Cases, therefore, like Shaffers v. The Gen-^^^^^^^"^ 
 eral Steam Navigation Co., 10 Q. B, D. 356 ; 48 L. T. 
 N. S. 228, cannot be relied on as conclusive authori- 
 ties for the construction of this Act. In that case 
 the plaintiff and one J. were employed by the defend- 
 ants in loading sacks of corn into the hold a ship. 
 J.'s duty was to guide the beam of the crane by 
 means of a guy rope, and give directions when to 
 lower and hoist the crane. He neglected to use the 
 guy rope, and the sacks in consequence fell down the 
 hatchway and injured the plaintiff. It was held that 
 J. was engaged in manual labour, and was not a 
 person having superintendence entrusted to him, and 
 that the accident was not caused by his negligence 
 while in the act of such superintendence. Under 
 this Act the question of J.'s having been engaged in 
 manual labour would be immaterial ; the simple 
 question would be : Was he a foreman, or acting as 
 a foreman over the workmen engaged in lowering 
 the sacks ; and was he guilty of negligence while so 
 engaged ? Although in England the performance 
 of manual labour, as an ordinary part of his duty, 
 prevents a man from being regarded as a " superin- 
 tendent " within the meaning of the English Act : 
 Kellard v. Rooke, 21 Q. B. D. 367 ; yet even under 
 that Act a person does not cease to be a superintend- 
 ent merely because he voluntarily chooses to assist 
 in manual labour : Osborne v. Jackson, 11 Q. B. D. 
 619 ; 48 L. T. N. S. 642. 
 
 ./ 
 
 k 
 
 3 
 
 BiBLIOTHEQUE DE DROil 
 U.d'O. 
 O.U. 
 LAW LIBR/IRy 
 
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 c:' ; 
 1 I 
 
 o:: : 
 
 Section 2. 
 s.s. 2. 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 (b) "Employer." The words in [ ] in this sub- 
 section are not in the English statute (43 & 44 
 
 J J- J U.. -^ A/ii-t- f 5>'i 
 
 'Employer,"Vict. c. 42, s. 8). 
 
 Th^y were added by 52 Vict. c. 23 
 
 meaning of 
 
 (O); and see post, s. 11. But for the worlds in 
 brackets and s. 11, no action would lie under the Act 
 against the representatives of a deceased employer : 
 Gilleti V. Fairbank, 3 T. L. R. 618. The above sub- 
 section, while it states certain classes of persons who 
 are to come within the term "Employer," gives no 
 definition of the word "Employer." Whether the 
 relationship of employer and employed exists, is a 
 question of tact, to be determined by the particular 
 circumstances of each case existing at the time the 
 injury complained of occurred. A workman ordin- 
 arily in the employment of one person, may in res- 
 pect of some particular work become temporarily 
 the servant of another, to whom he may have to 
 look for compensation for injuries sustained while 
 in his employ, and not to the person by whoni he is 
 ordinarily employed : see Wild v. Waygood {^9,^2). 
 1 Q. B. 783 (C.A.); 66 L. T. N. S. 309- 
 
 Prima facie an "employer" is any one who employs 
 another to do some service for him, but in this Act 
 the word is generally used in a more restricted sense, 
 and seems to be limited to those who employ 
 " workmen," as defined in the next sub-section. But, 
 as hereafter pointed out, posl, p. 23, it is not clear 
 that the relationship of master and servant must 
 necessarily exist between a defendant and plaintiff to 
 entitle the latter to the benefit of this Act. Four 
 tests have been laid down for determining whether or 
 not the relationship of master and servant exists, 
 
THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 II 
 
 viz.: (i) By whom was the servant hired ? (2) Who Section 2. 
 
 has the power of dismissing him ? (3) By whom **" ' ^' ^' 
 
 is he paid? and (4) Who has the right of control " Employer' 
 
 over him ? : (see Swainson v. Norih Eastern Ry. 
 
 38 L. T. N. S. 201, per Bramwell, L. J.) The last of 
 
 these appears to be the most important, viz., in 
 
 whom is the control over the workman vested : see 
 
 Rourke v. The White Moss Colliery Co., 2 C. P. D. 
 
 205 ; 36 L. T. N. S. 49. ; but see Joties v. Liverpool, 
 
 14 Q. B. D. 890. 
 
 Ordinarily the workmen of a contractor are not in 
 the position of servants to the person by whom the 
 contractor is employed, and the latter is not an 
 employer of either the contractor or his workmen 
 within the meaning of this statute, except to the 
 extent mentioned in, s. 4, post, and except as regards 
 the contractor when the contract is for his personal 
 work and labour ; see supra s. s. 3. 
 
 Thus where the defendants contracted with one L. for 
 the unloading of coal, and L. employed and paid the 
 plaintiff and others to assist him ; and the defendants 
 had no control over the men, and could not dismiss 
 them, it was held that he was the "employer" of the 
 plaintiff and not the defendants: Turner v. Great East- 
 ern Ry. Co. , 2,Z L. T. N. S. 43 1 ; Murray v. Currie, 
 L. R. 6, C. P. 24 ; 23 L. T. N. S. 557 ; and see Finlay 
 v. Miscampbell, 20 Ont. 29, per Boyd C. at p., 35. 
 But where a workman is employed with power to 
 engage other workmen, all who are so employed, are 
 servants of the original employer and he is liable to 
 them as such : Brown v. Butterly Coal Co. , 2 T. L. 
 
 .^1 
 
 P: 
 
 'J 
 
 :o 
 
la 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 'fefl! 
 
 ts:;n . 
 
 c: 
 
 a::»i 
 
 Section 2. R_ igg ; Hayward v. Phoenix, cited in 2 T. L. R. 604; 
 "•""!_ Levering \. St. Katherines Dock Co., 3 T. L. R. 607. 
 "Employer "Thus a man employed to unload a coal barge and who 
 managed everything, and engaged the other work- 
 men required, but did not pay them and could not 
 dismiss them, and was himself paid at the rate of 
 IS 9d. per ton unloaded, was held to be a ser- 
 vant : Charles v. Taylor, 3 C. P. D., 492 ; 38 L. T. 
 N S 773, and see Varley v. Birley, 26 Sol. Jour. 
 467 -J Grainger v. Aynsley, 6 Q. B. D. 182 ; Sadler 
 V. Henlock, 4 El. & B. 570 ; and if the employer of a 
 contractor reserves to himself the right to control the 
 manner in which the work is done, the employer may 
 become responsible for the negligence of the con- 
 tractor and his servants : Ruth v. Surrey Coml. Dock 
 Co., 8 T. L. R. 116, (it is somewhat difficult to 
 understand why the defence of common employment 
 did not apply in this case unless it be, that, there 
 was negligence on the part of the foreman which the 
 report does not disclose); so also, one person may, for a 
 particular purpose, become the "employer " of another 
 person's servant and responsible to him as such. Thus, 
 where builders employed to build a house made a 
 sub-contract with another person to put in a lift, and 
 the sub-contractor sent one of his workmen to per- 
 form the work, and this workman applied to the 
 builders to lend him a man to assist him, which they 
 did, the sub-contractor agreeing to pay his wages 
 while so employed ; it was held that the sub-con- 
 tractor was pro hac vice the employer of the man so 
 lent, and liable to him for damages resulting from the 
 negligence of the sub-contractor's other workmen, 
 
THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 »3 
 
 34; 
 07. 
 
 rho 
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 the 
 may 
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 for a 
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 per- 
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 they 
 ?ages 
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 in so 
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 Lmen, 
 
 under whose superintendence he was for the time Section 2. 
 being: IVilcl v. Waygood [iSgi), 1 Q. B. 783 ; Roiirke^' *•_!_ 
 V. White Moss Colliery Co., 2 C. P. D. 205, 36 L. T. "Employer" 
 N. S. 49. 
 
 [c] '* And the person liable to pay compensation 
 under Sect. 4." These words extend the meaning of 
 the word employer beyond its ordinary significance. 
 Ordinarily, as we have seen, employer is equivalent 
 to master ; but the words and the person liable to pay, 
 etc., to a certain extent, makes the employer of a 
 contractor the employer also of the contractor's 
 or any sub-contractor's servants, within the mean- 
 ing of this Act : that is to say, he is to be regarded as 
 the employer of his contractor's and sub-contractor's 
 servants so as to be liable to them for injuries 
 occasioned by the defect in the condition or arrange- 
 ment of any ways, works, machinery, plant, buildings 
 or premises, owned or supplied by him, and used for 
 the purpose of executing the work for which the 
 contractor or sub-contractor is employed ; when 
 such defect, or the failure to discover it, is due to 
 any negligence on his part, or that of some person in 
 his service entrusted by him with the duty of seeing 
 that such condition or arrangement is proper : see 
 post, s. 4. 
 
 A person employing a contractor is of course, irre- 
 spective of this Act, liable to the servants of such 
 contractor, or any sub-contractor, at Common Law, to 
 the same extent that he is to any other member of 
 the public for injuries resulting from the negligence of 
 himself, or those for whose acts he is responsible: 
 Belong V. Barrett, 25 N. B. R. 140. 
 
 
 ^. 
 
14 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 
 SSi' 
 
 Section 2. {(f) "Workman." The definition of workman in 
 
 s. s - 3- ,.|^g English statute, although not in the same words, 
 
 "Workman, " is nevertheless to the same effect as in this Act : by 
 meaning of j-^^ Interpretation Act, (R.S.O. c. i,) s. 8, s.s. 24, the 
 term includes females as well as males : domestic and 
 menial servants are excluded from its provisions. 
 Under the head of domestic servants are included all 
 those servants usually employed in the domestic affairs 
 of a house, e.g., cooks, maidservants of all kinds, 
 butlers, footmen, coachmen, grooms, valets, pages, 
 gardeners, etc. The words domestic and menial are 
 sometimes used as though they were convertible 
 terms, but it would seem that a servant may be a 
 menial although not a domestic servant : Cf. Nowlan 
 V. Ablett 2 C. M. & R. 54, and Ogle v. Morgan, i D. 
 G. M. & G. 359 : 18 L. T. O. S. 296, but most domestic 
 servants would appear to be also menials. There 
 seems to be some doubt as to the true meaning of 
 the word menial. Blackstone thought that menial 
 servants were so called from their living intra nuBnia, 
 i.e., within their masters walls : Bl. i. 425, but it is 
 clear that residence within the walls is not necessary to 
 constitute a servant a menial. In some dictionaries 
 the word is derived from meiny, an old Saxon word, 
 meaning a "retinue": see Wharton's Law Lexicon 
 V. meiny. It has also been suggested that the word 
 is derived from the Greek word men, a month : see 
 Smith's Master & Ser., 4th Ed., p. 93, n., and it is 
 suggested that it is applied to domestic servants as 
 to whom a custom prevails whereby their time of 
 service may be determined at any time on giving a 
 month's notice or paying a month's wages. 
 
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THE WORKMEN S COMPOSITION FOR INJURIES ACT. 1 5 
 
 The decisions as to who legally come within the Section 2. 
 definition of menial servants have generally been **•*'•£_ 
 cases brought for alleged wrongful dismissal, and a "Menial 
 servant has usually been determined to be, or not to whoTre' 
 be, a menial, according to the circumstance whether 
 or not he was dlsmissible on a month's notice, or on 
 payment of a month's wages. 
 
 A head gardener employed at ;£'ioo a year and 
 living in a detached house belonging to, and within 
 his master's domain, and having two apprentices and 
 five under gardeners to assist him, was held to be a 
 menial servant, and only entitled to a month's warn- 
 ing : Nowian v. Ablett, 2 C. M. & R. 54 ; and a 
 huntsman hired at ;^ioo a year, with certain 
 perquisites, was also held to be a menial servant : 
 Nicoll V. Greaves, 33 L. J.C. P. 259. But a governess, 
 or a tutor, though residing in the house of the 
 master, is not within the rule whereby a menial 
 servant may be discharged with a month's notice 
 or a month's wages : Todd v. Kern'ch, 8 Ex. 151 ; 
 and the housekeeper of a large hotel : Lawlor v. 
 Linden, Ir. R. 10 C. L. 188 ; and a man employed 
 both as steward and gardener : Forgan v. Burke, 
 12 Ir. C. L. 495, have been held not to be menial 
 servants. 
 
 It is by no means clear that the term workman, as 
 defined by this sub-section, is confined to persons 
 standing in the position of servants ; the concluding 
 words of the section rather lead to the conclusion 
 that the term is intended also to cover those who are 
 not in the position of servants, but in that of con- 
 
 V 
 
 \' 
 
 ;! 
 
i6 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 I 
 
 
 cr 
 
 
 Section 2. tractors ; see t'n/ra p. 23. Where a slater was 
 s. s^^ employed by a builder to slate houses and the builder 
 
 "Workman" provided slates, poles, and scaffolding, but the 
 slater had his own tools and was paid by the piece, 
 it was held that the slater was a workman within 
 the meaning of the Act : Stuart v. Evans, 49 
 L. T. N. S. 138. The difference between the 
 liability of an employer for the acts of a servant 
 and a contractor is referred to in a letter from 
 the late Lord Bramwell to Sir Henry Jackson, 
 quoted in Spens & Younger, p. 4, where that 
 eminent judge states the law as to the liability 
 of a master for the negligence of his servant, thus : 
 " First, the actual doer of the mischief must be a 
 servant of the person sought to be made liable. It 
 is not enough he is employed, if not as a servant. 
 If I employ my servant to pull down a wall and by 
 his negligence he injures a passer-by, I am liable. 
 If I employ a firm of builders to do it, I am not 
 liable. The same thing is true if I employ a working 
 bricklayer. * * * Shortly, the relation of master 
 and servant exists when the master can not only 
 order the work, but how it shall be done. When the 
 person to do the work may do it as he pleases, then 
 such a person is not a servant. Next, the servant 
 must be acting within the scope of his employment. 
 If my coachman takes my carriage and horses to 
 give his wife a ride and is guilty of negligence 
 causing damage, I am not liable. Next, the damage 
 to be recoverable against the master must be the 
 result of negligence. If my coachman wilfully 
 drives against any one or his carriage, I am not 
 
 
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 THE workmen's COMPENSATION FOR INJURIES ACT, 
 
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 liable for the damage resulting. Lastly, the person Section 2. 
 injured, to have any remedy, must be one I have**'^'' 
 called of the outside world. The master is not liable "Workman 
 to any one with whom he has entered into some 
 relation, unless such liability was one of the terms 
 of that relation. Thus, if my servant drives over a 
 stranger, I am liable. If my friend is having a 
 drive with me, and is injured by my servant's negli- 
 gent driving, I am not liable, because it is not one 
 of the terms of our relation. If the passenger had 
 paid me money to carry him, I should be liable under 
 the first head of liability, because I had contracted 
 with him that he should be driven with care. If my 
 servant leaves a stumbling block in the street in the 
 course of his work, and anybody falls over it, I am 
 liable. If he leaves a trap door open in my house 
 and my guest falls through, I am not liable " : see 
 Sadler v. Hcnlock, 4 El. & Bl. 570 ; Steel v. South 
 Eastern Ry. Co., 16 C. B. 550; Sleath v. Wilson, 
 9 C. & P. 607 ; Mitchell v. Crasswcller, 13 C. B. 237; 
 Storey v. Ashton, L. R. 4, Q. B. 476 ; McManus v. 
 Crickett, i East. 106 ; Coleman v. Riches, 16 C. B. 
 104 ; Stevens v. Woodivard, 6 Q. B. D. 318 ; and see 
 />^r B ram well, L. J., Swainson v. North Eastern Ry, 
 Co., 38 L. T. N. S. 203 ; Collis v. Selden, L, R. 3 
 C. P. 495. 
 
 Although a servant may not be a workman within Common 
 the definition given in this sub-section, and therefore ,^0^^1*611"'^ 
 not entitled to the benefit of this Act, he is neverthe- away, 
 less not deprived of any right of action which he may 
 have at Common Law against his employer ; neither 
 
 
 '0' 
 
i8 
 
 THK WORKMEN S lOMPENSATION FOR INJIRIES ACT. 
 
 Section 
 
 S.S.J. 
 
 u.; 
 
 3 
 
 il 
 
 " R.iiUv 
 servant. 
 
 is a workman who is entitled to the benefit of the 
 Act deprived thereby of any right of action he may 
 have at Common I.aw : Ryalls v. Mcchattics Mills, 1 50 
 Mass. 190; Coughlin v. Boston Toiv-Boat Co., 151 
 Mass. 92. 
 
 ay (<?) ^* Railway Scrran//' By the conjoint operation 
 
 of these words, and s.s. 5, supra, it will be seen 
 that tramway servants, and street railway servants, 
 are now brought within the definition of '* workman." 
 Formerly, a driver of a tramcar was held not to 
 come within the definition of workman, because 
 his primary occupation was not manual labour : 
 see Cook v. North Metropolitan Tramway Co., 18 
 Q. B. D. 683 ; 56 L. T. N. S. 448 ; and see Hunt v. 
 Great Northern Ry., (1891) i Q. B. 601 ; 64 L. 
 T. N. S. 418. But the grammatical construction of 
 this section seems to indicate that it is not absolutely 
 necessary that ^* Railway Servants," as interpreted 
 by s.s. 5, ante, should be engaged in manual labour, 
 in order to entitle them to the benefit of the Act ; 
 in which respect they would appear to stand on a 
 different footing from all other classes of workmen 
 to whom its provisions apply : see post, pp. 22, 24. 
 
 If, however, the words or other^vise engaged in man- 
 ual labour should be held to qualify the word railway 
 servant, and to restrict the benefit of the Act to rail- 
 way servants so engaged ; then, the drivers and 
 conductors, and motor n:2n of tramways, or street 
 railways, and all others whose principal duty is not 
 manual labour, would not seem to be entitled to the 
 benefit of the statute. 
 
■i ACT. 
 
 of the 
 he may 
 'Us, 150 
 b., 151 
 
 teration 
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 :rvants, 
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 1 is not 
 to the 
 
 THK workmen's compensation FOR INJURIES ACT. 
 
 (/) " Labourer. " "A labourc)- is a man who digs Sc hu... 2. 
 and does other work oi that kind with his hands ":'*•'*• -^ 
 per Brett, M. R., Morga,, v. London Gcnvnil Omnibus'' Labourer. 
 Co., 13 g. B. D. 832 ; 5, L. T. N. S., 213, at p. 214. 
 This definition, of course, is not intended to be 
 exhaustive, digfrjntf is not the only kind of labour on 
 which a labourer is employed ; in short, the per- 
 formance of any laborious manual work not requiring 
 the exercise of any extraordinary skill, would con- 
 stitute the doer of the work a labourer within the 
 meaning of the Act. The term is usually confined 
 to persons who are not skilled workmen : see per 
 Lord Ellenborough, Loivther v. Radnor, 8 East, 124. 
 
 {g) "Servant in husbandry." A servant in " Servant i,> 
 Husbandry is one engaged for the performance '""'''^"'''■y-" 
 of manual labour incident to the tilling of the 
 soil, or the carrying on of a farm ; but a person 
 havmg general superintendence of such work, 
 and whose dut> was to set the men to work, keep 
 the farm accounts, and weigh out food for cattle, and 
 lend a hand all round, is rather in the position of a 
 steward or bailiff than a serz>anl in husbandry, 
 Davies v. Berwick, 3 El. & El. 549. When a ser- 
 vant IS employed to perform duties of a domestic 
 character, as well as those of a servant in husbandry, 
 It would be a question, in an action brought under this 
 Act, in which of the two capacities he was acting when 
 the injury complained of took place, and if he was then 
 acting as a servant in husbandry, it would seem that 
 he could not be deprived of the benefit of the Act 
 
 »9 
 
 
 !! 
 
 A 
 
20 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 Cfci 
 
 2 
 
 09 
 
 Section 2. 
 s.s. 3. 
 
 "Journey- 
 man." 
 
 " Artificer. 
 
 merely because he als( occupied the position of a 
 domestic servant as regitvds other duties required of 
 him: see Ex parte Hughes, 23 L. J. M. C. 138. 
 
 [h) "Journeyman." "A journeyman is r man work- 
 ing with and for a master,"; /^r Brett, M. R. ; Morgan 
 V. London General Omnibus Co., 13 Q. B. D. 832 ; 51 L. 
 T. N. S. 214; e.g., a journeyman carpenter. Usually 
 the term is applied to skilled workmen, and not to 
 mere labourers: see per Lord Ellenborough, Lowther v. 
 Radnor, 8 East 124. 
 
 (/) ''Artificer, Handicraftsm in.'' These terms 
 are similar in their meaning, and are both applicable to 
 workmen engaged in manual occupations of an indus- 
 trial character. Artificer is, perhaps, more correctly 
 applied to those engaged in work requiring the 
 possession of some artistic skill. A man who engaged 
 to make bricks out of material to be supplied by his 
 employer, and engaged to furnish all necessary labour, 
 was held not to be an artificer within the meaning of 
 the Truck Act (Impl. St. i & 2, W. 4, c. 37), because 
 he was not bound to work personally : Ingram, v. 
 Barnes, 7 El. & Bl. 115, affirmed, lb. 132 ; but it is sub- 
 mitted that the same considerations would not apply 
 in the construction of this Act as in the case of the 
 Truck Act, and the question whether a man so 
 employed is within the protection of this Act would 
 turn upon whether or not he was a workman working 
 for his employer, within the meaning of this Act, 
 and whether or not he was actively engaged in 
 manual labour. One who labours manually is not the 
 
THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 21 
 
 less a workman, within the meaning of this Act, Section 2. 
 
 because he has to employ others to assist him : *'"''■ ^1 
 
 Grainger v. Aynslc}\ 6 Q. B. D. 182 ; and in like "Artificer, 
 manner one whose time is principally employed in 
 manual labour does not cease to be a workman within 
 the Act because he is also an overlooker of fellow work- 
 men : Leech v. Gariside, 78 L. T. Jour. 427 ; i T. L. R. 
 391 ; and see IVhitely v. Armitage, 13W. R. 144: where 
 the relationship of master and servant does not exist, 
 and the person contracting to do work is merely in 
 the position of a contractor, and not of a servant, in 
 such cases the contractor does not come within the 
 definition of Workman within the meaning of the Act 
 except in cases within s. 4, post ; and except where 
 the contractor is personally engaged for the perform- 
 ance of manual labour : see tn/ra p. 23 ; and except 
 where the employer of the contractor reserves to 
 himself the right to control the manner in which the 
 contractor and his servants shall perform the work : 
 seQ Ruth V. Surrey Coal Dock Co., 8 T. L. R. 116, 
 (C. A.) ; and see McMillan v. Walker, 21 N. B, R. 31. 
 
 A person engaged by manufacturers, because of 
 his mechanical knowledge, to assist as a practical 
 working mechanic in developing ideas the firm 
 wished to carry out, and to originate and carry out 
 ideas and inventions suitable to the business of the 
 firm, was held not to be a workman within the mean- 
 ing of the English Act : Jackson v. Hill, 13 Q. B. D. 
 618 ; sed vide Ex. p. Ormerod, i D. & L. 825 ; 8 Jur. 
 495- 
 
 
 \' 
 
 !! 
 
22 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 3 
 
 03 
 
 53 
 
 Section 2. 
 s.s. 3. 
 
 " Manual 
 labour." 
 
 (7) "Or othertoise engaged in manual labour.'" 
 These words have the effect not only of bringing 
 other kinds of workmen besides those enumerated 
 within the definition of workman, and as su n 
 entitled to the benefit of the Act, but they also restrict 
 the various classes of workmen who are enumer- 
 ated (except, perhaps, railway servants ; seew/ra p. 24) 
 to such as are engaged in manual labour. Persons 
 whose principal duty is not manual labour, though 
 they may otherwise occupy the position of servants 
 and workmen, are held not to be within the pro- 
 tection of the Act : Thus, an onnibus conductor is 
 not within the Act, although part of his duty may be 
 to help to change the horses ; his primary and 
 ordinary duty being to invite and attend to passengers 
 and collect the fares : Morgan v. London General 
 Onnibus Co., 12Q.B. D. 201 ; 13 Q. B. D. 832 ; 51 
 L. T. N. S. 213. For the like reason the driver of a 
 tram car : Cook v. Norl/i Metropolitan Tramway Co. , 
 18 Q. B. D. 683 ; 56 L. T. N. S. 448 ; was held not 
 to be a workman within the meaning of the English 
 Act : but owing to the difference which ex'ists 
 between this Act and the English Act by the addition 
 of s.s. 5, ante, p. 8, it is doubtful whether this last case 
 would be applicable to the construction of this Act, 
 as, for reasons already given, it appears doubtful 
 whether a servant of a railway, tramway, or street 
 railway need be engaged in manual labour to entitle 
 him to the benefit of the Act. 
 
 For a similar reason a grocer's assistant has been 
 held not to be a workman within the Act, although 
 
•T! 
 
 THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 in addition to his ordinary duties of serving customers Section 2. 
 he carried parcels from the shop to the dehvery cart, "' " ^ 
 
 and removed goods from one part of the premises to " Manual 
 another : Bound v. Lawrence, (1892) 1 Q. B. 226 ; 
 65 L. T. N. S. 844 ; on the other hand, a man in 
 charge of a horse and trolley, whose principal duty 
 was to load and unload the trolley, was held to be a 
 workman within the Act : Yarmouth v. France, 19 
 Q. B. D. 647. The English Act (see 43 & 44 Vict, 
 c. 42, s. 8, and 38 & 39 Vict. c. 90, s. 13) does not 
 apply to seamen, or to apprentices to the sea service; 
 but there being no exception of that kind in this Act, 
 it would seem that this Act would extend to sailors 
 and others engaged in nautical pursuits whose prin- 
 cipal duty consists in manual labour. 
 
 (^') ^^ Contract of service," etc. The Act draws a 
 distinction between a contract of service and a contract " Contract of 
 personally to execute any ivork. What the precise 
 difference aimed at by these two expressions may be, 
 is not quite apparent. The point was discussed by 
 Lindley and Lopes, L.JJ., in Grainger v. Aynsley, 
 6 Q. B. D. 188 ; 43 L. T. N. S. 608 : Lindley, L. J., 
 said: " What the meaning of the antithesis may be 
 it is not necessary to decide, but I should think if a 
 person were to be employed to work for a month or 
 a week, he would be employed under a contract for 
 service ; and if he were employed to dig a drain, he 
 would be employed under a contract personally to 
 execute work and labour. " It would, therefore, appear 
 that it is not necessary, to entitle a workman to the 
 benefit of the Act, that he should be in the position of 
 a servant to his employer. The words in this section 
 
 V, 
 
 
 service. 
 
24 
 
 Section 2. 
 s.s. 3. 
 
 
 s.s. 4. 
 
 " Packing.' 
 
 Mi 
 
 cn 
 
 at 
 
 E':?' 
 3;: 
 
 :3 
 
 n 
 
 09 
 
 " Railway 
 servant." 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 seem to cover both the relationship of master and 
 servant, and of contractor and contractee, e-s'--' by a 
 contract of service y would seem to be meant a contract 
 whereby the relationship of master and servant is 
 created ; and by a contract to personally execute any 
 7vork and labour, would seem to be meant a contract 
 for the personal service of the workman, even though 
 only the relationship of contractor and contractee is 
 created : see Stuart v. Evans, 49 L. T. N. S. 138. 
 
 (/) " Packing:" The only other place in the statute 
 where this word occurs is in s. 5, s.s. 3. There is 
 no clause similar to s.s. 4 in the English Act. 
 
 (ot) "Railway servant." The only other place in 
 the Act where these words are used is in s.s. 3, ante. 
 The joint operation of that sub-section and this sub- 
 section is to include all servants of a railway, tram- 
 way and street railway, under the term workman. 
 Owing to the collocation ofthe words in s.s. 3, it would 
 seem that, although in the case of all other kinds of 
 workmen, it is necessary that they should be engaged 
 in manual labour in order to entitle them to the bene- 
 fit of the Act, yet in the case of railway servants, as 
 defined by this sub-section, that is not necessary. 
 But this is by no means free from doubt, and having 
 regard to the general policy of the Act it would 
 appear to be improbable that its provisions were 
 intended to extend to any class of servants, even 
 of a railway, who are not engaged in the capacity, at 
 all events, oi workmen of some kind or other. 
 
 The Act places railway servants in a more favour- 
 able position than other classes of workmen, inas- 
 much as it enables them to sue their employers for 
 
 t 
 
 OJL 
 
 4^r\M.^ 
 
 iu 
 
 c 
 
 r. 
 
 J 
 
 -// 
 
 a 
 
 lr~fi 
 
 
THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 personal injury caused by the negligence of any fellow 
 servantwho has charge or control of any points, signal, 
 locomotive, engine, machine, or train, upon a rail- 
 way, tramway or street railway ; and practically takes 
 away from the employer the defence of common 
 employment in all such cases. There is no clause 
 similar to s. s. 5 in the English Act. 
 
 3. Where personal injury is caused to a Section 3. 
 
 workman («) When work- 
 
 man to have 
 
 (i) Bv reason of any defect in the ^■'=*''" ^&^'"^' 
 
 employer. 
 
 condition [or arrangement] of the ways,- .^ 
 
 {b) works, {c) machinery, {d) plant, (f) ways, etc. 
 [buildings or premises] i^f) connected 
 with [intended for], or used in {g) the 
 business of the employer ; or 
 
 {2) By reason of the negligence (/OK'?ri"r 
 of any person in the service of the em- '^"''♦^nt. 
 ployer who has any superintendence (/) 
 entrusted to him whilst in the exercise 
 of such superintendence ; or 
 
 (3) By reason of the negligence of^'egligence 
 any person in the service of the em- giving orders 
 ployer (y) to whose orders or directions 
 the workman at the time of the injury 
 was bound to conform and did conform, 
 where such injury resulted from his 
 having so conformed ; or 
 
 X auu,^ M.t 
 
 ^4 
 
 
 
26 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 illii 
 
 ■^1^, 
 
 liJ 
 
 C3 
 
 o 
 
 03 
 03 
 
 Section 3. 
 s.ss. 4 and 5 
 
 Improper by. 
 laws, rules, 
 or instruc- 
 tions. 
 
 Negligcti' c; 
 of railwa)' 
 servants. 
 
 (4) By reason of the act or omission 
 of (^) any person in the service of the 
 employer done or made in obedience 
 to the rules or by-laws of the employer, 
 or in obedience to particular instruc- 
 tions given [by the employer or] by 
 any person delegated with the authority 
 of the employer in that behalf ; or 
 
 (5) By reason of the negligence (/) of 
 any person in the service of the em- 
 ployer who has the charge (nt) or con- 
 trol ^1 any points, (n) signal, (o) loco- 
 motive, engine, [machine,] or train upon 
 a railway, [tramway or street railway] ; 
 
 the workman (/), or, in case the injury 
 results in death, the legal personal repre- 
 sentatives (g) of the workman, and any 
 persons entitled in case of death, shall 
 have the same right of compensation (r) 
 and remedies against the employer as if the 
 workman had not been a workman of, nor 
 in the service of, the employer, nor engaged 
 in his work. R. S. O. 1887, c. 141, s. 3. 
 52 v., c. 23, ss. 3, 4, 5. 
 
 (a) "Personal injur}' caused to a workman." For 
 the definition of workman see ante, s. 2, s.s. 3, ante 
 p. 7. ^y personal injury a bodily injury is intended ; 
 
THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 27 
 
 damages for injury to a workman's property or Section .v 
 
 estate are not recoverable under this Act ; ^QePulling ' ' _1 
 
 V. Great Eastern Ry., 9 Q. B. D. no. 
 
 Sub-section i. The words in [ ] in this sub-section 
 are not to be found in the English Act (43 & 44 
 Vict., c. 42), s. I, s.s. I. 
 
 (A) "Defect in the condition or arrangement 0/ /Ac Defects in 
 ways, " etc. This section gives to workmen and railway ^'^y ^' ^^^ - 
 servants, as defined by the preceding section, the same Scope of 
 remedies against their employers, as strangers, for^"^' '* 
 any personal injury resulting to them (i) from defects 
 in ways, works, etc., and (2) for negligence of fellow- 
 servants placed in positions of control over the work- 
 man injured, or {3) in case of railway servants, for 
 nepfligence of fellow-servants employed in certain 
 specified duties. 
 
 It will be observed it does not give a workman any 
 remedy against his employer for the ni^gligence of a 
 fellow-servant, except in the cases specified in s. ss. 
 2, 3, 4 and 5 : McEvoy v. Waterford Steamship Co., 
 18 L. R. Ir. 159. 
 
 In all cases, therefore, which cannot be brought 
 within s.ss. 2, 3, 4 and 5, the defence of common 
 employment is still a good defence : see Whatlev v. 
 Holloway, 62 L. T. N. S. 639 ; Claxton v. Moxdem, 
 4 T. L. R. 756; Elliott V. Tempest, 5 T. L. R. 154; 
 Howard V. Bennett, 60 L. T. N. S. 152 ; and JVild v. 
 Waygood, (1892) i Q. B. 783 ; 66 L. T. N. S. 309, 
 where the decision in Howard v. Bennett was ap- 
 proved of by the Court of Appeal, although some of 
 the observations of Lord Coleridge, C.J., in that case 
 are dissented from. 
 
 / 
 
 
 
28 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 Section i. 
 
 S.S. I. 
 
 Scope of 
 
 S.S. 1. 
 
 Defects in 
 ways, etc., 
 what are. 
 
 Furthermore, it is necessary to be borne in mind 
 that this sub-section is controlled by s. 6, s.s. i, post r 
 and the master cannot be made responsible merely 
 because his ways, works, etc., prove defective, unless 
 the defect be proved to be one that either arose, or 
 was not discovered or remedied from his own neglect, 
 or the neglect of some person entrusted by him with 
 seeing that the condition or arrangement of the ways, 
 works, etc., are proper: see /<?/' Lord Campbell, Wcems 
 v. Mathieson, 4 Macq. 215, at p. 222; and see 
 Ovington v. McVicar, 2 Macph. 1,066 ; IVilson v. 
 Merry, L. R. i H. L. Sc. App. ,/><?/- Lord Cairns, L. C, 
 at p. 332 ; Stexmirt v. Coltness Iron Co., 4 Ret. 952; 
 Potts V. Port Carlisle Dock and Ry. Co., 2 L. T, N. S., 
 283 ; Murphy v. Phillips, 35 L. T. N. S. 477 ; Watlingv. 
 Oastler, L. R. 6 Ex. 73 ; Black v. Ontario Wheel Co.y 
 19 Ont. 578 ; Farmer v. Grand Trunk Ry. Co., 21 
 Ont. 299; Rossv. Cross, 17 Ont. App. 29. 
 
 In McGiffin v. Palmer, 10 Q. B. D. 5 ; 47 L. T. 
 N. S. 346, it was pointed out that there is a differ- 
 ence between a defect in a way, etc. , and the defect 
 in the condition of a way, etc. ; and that what this 
 statute refers to is defects in the condition of ways, 
 etc., and it was held in that case that there was no 
 defect in the condition of a way, by reason of some 
 temporary obstruction being placed in it, which 
 caused an accident. The defect, to be within the Act, 
 must be something affecting the permanent condition 
 of the way, etc., not a mere temporary and acci- 
 dental obstruction, or something casually impairing 
 its efficiency ; but, as already pointed out, it must be 
 
THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 29 
 
 noticed that this Act contains the words " or arrange- ^'^'^''°" •5- 
 ment " in addition to the word " condition," in which " J — 
 respect it differs from the English Act. But even Defects m 
 under the English Act it has been held that an em- 
 ployer is liable for an injury to a workman caused by 
 a piece of iron flying from a furnace, on the ground 
 that the works were carried on under defective 
 arrangements, needlessly exposing the workman to 
 danger : McGuirc v. Cairns, 17 Ret. 540. 
 
 A defect exists where the ways, etc., are not in a 
 proper condition for the purpose for which they are 
 intended to be applied : Heske v. Samuelson, 1 2 Q. 
 
 B. D. 30 ; 49 L. T. N. S. 474, per Lord Coleridge, 
 
 C. J. : Paley v. Garnett, 16 Q. B. D. 52 ; Cripps v. 
 fudge, 13 Q. B. D. 583 ; 51 L. T. N. S. 182. But if 
 the way, etc., be in good condition for the purpose for 
 which it is intended, but by reason of some negligent 
 act for which the employer is not answerable, it 
 becomes temporarily dangerous, and an injury results, 
 that will not constitute a defect within the meaning 
 of the Act, for which the employer is responsible : 
 McGiffin V. Palmer, 10 Q. B. D. 5 ; 47 L. T. N. S 
 346, supra. Thus, where in the floor of a workshop 
 was a well, to which belonged a lid in good con- 
 dition, and this lid was removed, and a workman, not 
 knowing that the lid was off", fell into the well and was 
 injured, it was held that this was not any defect in the 
 way for which the master was liable : Willetts v. Watt, 
 (1892) 2 Q. B. 92 ; 66 L. T. N. S. 8x8 ; O'Neill v. 
 Everest, 8 T. L. R. 426. But where the workman is 
 required by his employer to occupy a position of 
 
 
 A 
 
 :9 I 
 
H^^SiH 
 
 30 
 
 THE workmen's COMPENSATION 1-OR INJURIES ACT. 
 
 Section .^. 
 s.s. I. 
 
 Defective 
 ways, etc. 
 
 Omitting 
 shore up 
 dangerou 
 walls. 
 
 to 
 
 danger, the employer is responsible for the reason- 
 able efficiency of the ways, works, machinery, plant, 
 buildings and premises, by which the workman is 
 liable to be injured in case they should prove defec- 
 tive. Thus, where the plaintiff was employed in a 
 quarry, and others were engaged in raising stones 
 by a crane, and swinging them over the heads of the 
 plaintiff and other workmen, it was held that the 
 employer was responsible for the failure of the 
 tackle connected with the crane to hold one of the 
 stones, by reason whereof it fell upon and injured 
 the plaintiff: Smith v. Baker, (1891) A. C. 325 ; 65 L. 
 T. N. S. 467. So also when a workman was 
 employed by a builder engaged in demolishing an 
 old building, and he was directed by his employer 
 to remove some timber from the base of an old wall 
 which was about to be pulled down, and, as the court 
 held, the employer was guilty of negligence in not first 
 shoring up the wall, and while the workman was 
 so engaged the wall fell upon and injured him, it 
 was held that the injury was caused by a defect in 
 the condition of the works, for which the employer 
 was liable : Brannignn v. Robinson, (1892) 1 Q. B. 
 344 ; 66 L. T. N. S. 647. But where a wall of a 
 building which had been injured by fire was in process 
 of being taken down by the defendants as contractors, 
 it was held that the plaintiff, one of their workmen, 
 who was injured by its falling, had no cause of 
 action against his employers, the employment being 
 necessarily dangerous, and it not being shown that 
 the defendants by any negligence on their part had 
 in any way increased the danger : McMamis v. 
 
THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 3J 
 
 Greenwood, 79 L. T. Jour. 160. And where a wall of the Section 3. 
 
 employer's building- had been injured by fire and" J 
 
 rendered unsafe, and the employer had obtained the Rt^fects in 
 services of a competent contractor to shore it up, 
 and after it had been shored up, the defendant's fore- 
 man ordered the plaintiff to return to his work near 
 the wall, which fell and injured him, it was held that 
 there being no negligence on the part of the master, 
 he was not liable : Moore v. Gitnson, 5 T. L. R. 177. 
 
 A way, to be within the Act, need not necessarily " way," 
 1 « z' 1 ... . nieanine ol 
 
 be any denned passage marked out by metes and 
 
 bounds, or habitually used by the employer's work- '**^ i>-t<^ 
 
 man. Any part of a shop, or other premises, of an "^^^^^ '- 
 
 employer over which his workman is required to go, *^*'^ "^ ^ 
 
 or over which it is his duty to go, in carrying on the '^-^'^ "^ 
 
 business of his employer, would appear to be a way 
 
 within the meaning of the Act : see Willetts v. Watt, 
 
 (1892) 2 Q. B. 92 ; 66 L. T. N. S. 818. In that case 
 
 Lord Esher, M. R., defined a way to be a course 
 
 which a workman would, in oidinary circumstances, 
 
 take in order to go from one part of the shop where 
 
 business is done to another part where business is 
 
 done, when the business of his employer requires 
 
 him to do so. 
 
 In England it is held the way must be one 
 actually intended for use, and not a partly con- 
 structed way not intended for use, at the time the 
 injury complained of took place : Howe v. Finch, 17 
 Q. B. D. 187 ; but the words intended for in this 
 sub-section are not in the corresponding section of 
 the English Act, and they may be found to have the 
 
 9'^ 
 
 Cajfot.f^KrfjU. ■y 
 
 /I " 
 
 'S, 
 
 
3* 
 
 Section 3. 
 
 S.S. !• 
 
 ••»«.M|| 
 
 1^ 
 
 C3 
 
 U.J 
 
 III 
 
 3: 
 
 WW 
 
 O 
 
 n 
 n 
 
 Defects in 
 ways. 
 
 I'nfenced 
 holes. 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 effect of extending the operation of this Act to cases 
 to which, under Ho7Vi' v. Finch, the English Act 
 would not apply : see /„/m p. 43 ^s to effect of the 
 words intended /or. 
 
 A way is not defective, if sufficient for the ordinary 
 purposes for which it is intended, merely because it 
 happens to prove too narrow on some sudden and 
 unforeseen contingency, i".^., where, in a brewery, a 
 workman was pulling out a board from under a vat, 
 and owing to its sticking and then suddenly coming 
 away, the plaintiff .was overbalanced on a narrow 
 way on which he was standing, which was sufficient 
 for the ordinary purpose for which it was intended, 
 and fell into another vat that was near by ; this was 
 held to be no defect either in the way or the plant : 
 T/iomas v. Qnarh'nnaine, 18 Q. B. D. 685. But the 
 correctness of this decision was questioned by Lord 
 Herschell in SnuVi v. Baker, (1891) A. C. 325; 65 
 L. T. N. S. 467.* 
 
 But, where, owing to an unfenced aperture for a 
 stairway in the master's premises, the workman fell 
 and was injured, this was held to be a defect m 
 the way for which the master was responsible : Wood 
 V. Dorrall, 2 T. L. R. 550. But an unfenced aperture 
 in a floor of a factory in which men were engaged 
 repairing a hoist, was held not to be a defect m 
 the way, either under this Act, or The Factories 
 Act (R. S. O. c. 208), there being evidence that it 
 
 * For a criticism on Lord Herscheirs judgment in Smith v. 
 Baker, by Mr. Beven : see the Law Quarterly Review, vol. 8. 
 p. 302. 
 
THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 33 
 
 was impossible to g'uard the hole while the men were Section 3. 
 
 at work : Headford v. McClary Manufacturing Co., *'■'*■ |^ 
 
 before Rose, J., 16 Nov., 1892. And wherein a build- Unfenced 
 ing in course of erection, a well-hole somewhat larger " **!.'," **"" 
 than was necessary was left for a staircase, and an premises, 
 accident happened, which but for the unusual size of 
 the hole might have been avoided, it was held not to 
 be a defect in the condition of the ways or works : 
 Conv3ay v. Clemence, 2 T. L. R. 80. But the omis- 
 sion to take necessary steps to prevent the throwing 
 of rubbish down a well-hole in a building in course of 
 erection, which the workmen were obliged to use to 
 reach their work, and in consequence whereof a 
 workman was injured by a plank being thrown down 
 on him as he was coming up the hole on a ladder, 
 was held not to constitute a defect in the condition of 
 the 7vay for which the employer was answerable : 
 Pegram v. Dickson, 55 L. J. Q. B. D. 447. But, 
 insufficient planking across a hole in which a weigh- 
 ing machine was being erected, and over which 
 workmen were obliged to pass, was held to be a 
 defect in the way for which the master was liable : 
 Bromley v. Cavendish Spring Co., 2 T. L. R. 881. 
 So where the only means for descent into a cellar was a 
 chain, by means of which the workmen were required 
 to lower themselves down, and a workman in using 
 the chain fell, and was injured, the master was held 
 liable for a defect in the condition of the way, not- 
 withstanding that the chain had been used without 
 accident for ten years previously : Previsi v. Gatti, 
 4 T. L. R. 487. 
 
 A 
 
 3;j 
 
ssssoBga^a 
 
 34 
 
 Section .3. 
 s.s. I. 
 
 Unfenced 
 holes. 
 
 Neglect to 
 shore up 
 sides of 
 drain. 
 
 " Works," 
 what are 
 
 THF, workmen's compensation for injuries act. 
 
 But the existence of an unfenced hole in the 
 master's premises is not necessarily a defect in the 
 ways or works, if the workman, knowing of its 
 existence, unnecessarily goes out of his way and sus- 
 tains injury by falling into it : McShane v. Baxter, 7 
 T. L. R. 58 ; Pritchard v. Lang, 5 T. L. R. 639 ; 
 Finlay v. Miscampbell, 20 Ont. 29 ; and an unpro- 
 tected manhole in a ship in process of construction 
 was held not to be a defect in the way : Forsyth v. 
 Ramage, 18 Ret. 21. 
 
 In Scotland an employer was held liable where his 
 workman was killed by the falling in of a drain m 
 which he was working, owing to the sides of it not 
 having been shored up through the negligence of the 
 foreman : McColl v. Black, 18 Ret. 507 ; sed vide the 
 dissenting opinion of Lord Young. 
 
 For what are to be deemed defects in the condition 
 of ways, works, etc., of railways, see post, s. 5. 
 
 {c) ' ' Works. " By this word it is probably intended 
 to include the whole premises and buildings wherein 
 the business of the employer is carried on, but in 
 England it is held a defect in the condition of the 
 iiom'ks, to be within the meaning of the English Act, 
 must be a defect in a completed work, and not a 
 defect due to the fact that the buildings and premises 
 are still in process of construction : Howe v. Finch, 
 17 Q B D. 187 ; see, however, post, p. 43, as to the 
 bearing of this case on this statute. Where the 
 master knowing of a defect in the works employs 
 competent workmen to repair the defect, he is relieved 
 
THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 35 
 
 of liability, even though the defect be not efficiently re- Section 3. 
 moved, and an injury results to his workmen in conse-*"^* '• 
 quence: Moorev.Gimson, 5 T. L. P.. 177; but seeposi, p. Defects in 
 39. So also when a master has employed competent works, 
 workmen to erect staging or scaffolding, which proves 
 defective and his workmen are injured, that is not a 
 defect in the condition of his works or plant for which 
 the master is liable : Kiddle v. Lovett, 16 Q. B. D. 
 605 ; Black V. Ontario Wheel Co., 19 Ont. 578, and 
 see Searle v. Laverick, L. R. 9 Q. B. 122; and the 
 workman in such a case would appear to have no 
 remedy against the man by whom the stage was 
 erected : Heaven v. Pender, 9 Q. B. D. 302 ; 47 L. T. 
 N. S. 163. Where a workman was injured in a 
 lumber yard by the falling of planks from a stack 
 which he was engaged in lowering, and there was no 
 evidence that there was any apparent danger from 
 the stack being too high, it was held the master was 
 not liable : Connell v. Surrey Commercral Dock Co., 
 3 T. L. R. 630. Where a workman was injured by 
 a sliding door which he had shut in obedience to the 
 orders of a foreman, and which, owing to there being 
 no catch to stop the door, ran on until brought up 
 by the handle by which it was moved, thereby jambing 
 the workman's hand, and it appeared that a very 
 small alteration would have made the door safe, it 
 was held this was a defect for which the master was 
 liable : Johnston v. Mitchell, 22 Sc. L. R. 698. 
 
 Where a workman was injured by a piece of iron 
 flying from a furnace, the employer was held liable 
 for not having made due provision for protecting his 
 workmen from such accidents : McGuire v. Cairns, 
 17 Ret. 540. 
 
 y 
 
 -. 0, 
 
 3 I 
 
36 
 
 Section 3. 
 s.s. I. 
 
 Defects in 
 machinery. 
 
 
 u 
 
 
 
 
 
 n 
 
 
 
 e. /. 
 
 ^.735 
 
 THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 (d) "Machinery," Includes all mechanical devices 
 for producing any desired result. Machinery is not 
 defective within the meaning of the Act merely because 
 it is not of the latest or safest or most approved 
 pattern : Walsh v. Whiteley, 21 Q. B. D. 371 ; Butler 
 V. Birnbaum, 7 T. L. R. 287, and see Black v. Ontario 
 Wheel Co., 19 Ont. 578; Mitchell \. Patullo, 23 Sc. 
 L. R. 207. The defect must be one in the condition 
 of the machine itself ; a defect arising from an 
 omission to oil it properly is not such a defect ; see 
 McGiffin V. Palmer, 10 Q. B. D. 5 ; 47 L. T. N. S. 
 346 ; unless the want of oiling was known to the em- 
 ployer himself or a person entrusted by him to see that 
 the machine was in proper order and he neglected to 
 remedy it: see s. 6, s.s. i, post. Where a workman 
 was killed by oiling a machine whilst in motion, and it 
 appeared that it could be safely oiled when stopped, 
 and that it had been usual to stop it for the purpose 
 of oiling, it was held that the master was not liable, 
 though the deceased was a boy and it did not appear 
 that he had been instructed not to oil the machine 
 whilst in motion : Sutton v. Stead, 3 T. L. R. 499. 
 
 The deficiency of hydraulic power in an hydraulic 
 crane known to the master, or his foreman, whereby it 
 dropped the load it was carrying and injured a work- 
 man, was held to be a defect in the machinery or 
 plant for which the master was liable : Bacon v. 
 Dawes, 3 T. L. R. 557. It is immaterial that the 
 machine which caused tl.a injury belongs to some 
 third person, provided it is shown to have been 
 used by the employer's authority in the work in 
 which the workman was engaged, and even though 
 
THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 37 
 
 ces 
 not 
 use 
 ved 
 tier 
 ario 
 
 Sc. 
 tion 
 
 an 
 
 see 
 [. S. 
 
 em- 
 
 that 
 
 id to 
 
 man 
 
 nd it 
 
 >ped, 
 
 •pose 
 
 able, 
 
 jpear 
 
 chine 
 
 499. 
 raulic 
 eby it 
 ivork- 
 jry or 
 on V. 
 it the 
 
 some 
 
 been 
 >rk in 
 hough 
 
 it be not under the management of the master or Section 3. 
 
 any of his servants : lb. But workmen cannot make ''•^' ^^ 
 
 their employer liable for defects in a machine v.hich Defects in 
 they use in the work without his authority : see <»achinery. 
 Jones V. Burford, i T. L. R. 137 ; Perry v. Brass, 5 
 T. L. R. 253 : Nicohon v. MacAndrew, 15 Ret. 854. 
 
 A master was held liable for the negligence of his 
 foreman in not giving notice to a workman that a 
 shaft had been disconnected, and in consequence of 
 which it fell on and injured the workman : Aitken v. 
 Newport Slipway Dry Dock, 3 T. L. R. 527. 
 
 An omission to fence a shaft which is likely to be Omission to 
 dangerous to workmen is a defect for which thef^"ce. 
 master is liable : McCloherty v. The Gale Manufac- 
 turing Co., i9 0nt. App. 117 ; lies v. Abercarn Welsh ■ C "- 
 Flannel Co., 2 T. L. R. 547 ; Morgan v. Hutchings, , ^ u 
 6 T. L. R. 219; and see The Factories Act (R. S. O. ^ 
 
 c. 208), and the omission of a guard where one is 
 necessary under that Act is prima facie evidence of ' ' 
 negligence on the part of the employer : Thompson v. 
 Wright, 22 Ont. 127 ; sed vide Sickle v. Rogers, 
 before the Divisional Court of the Q. B. D., 6 Decem- 
 ber, 1892, where that Court refused to follow Morgan 
 v. Hatchings. 
 
 But it is held that the direction of The Factories '^ Factories 
 Act{R. S. O. c. 208), s. 15, to fence machinery, applies ^^'J^'^^PP''" 
 only to machinery used for the purpose of communi- 
 cating motion to other machines, and does not extend 
 to the machines which are moved ; and therefore it 
 is no negligence not to guard a saw, and that the 
 
 0*^ 
 
 i\ 
 
 
 ;. .<:..ct' - 
 
 r-, ,3. 
 
38 
 
 THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 
 y 
 
 
 0" 
 
 S 
 
 s 
 
 Section 3. 
 s.s. I. 
 
 Defects in 
 machinery. 
 
 Machine 
 causing^ an 
 injury, not 
 necessarily 
 defective. 
 
 want of a guard was not a defect within this section : 
 Hamilton v. Groesbeck, igOnt. 76 ; iSOnt. App. 437. 
 
 Where it is known to the master, or the person 
 entrusted by him to see to the proper condition of his 
 ways, etc., that a machine is defective, and an injury 
 results to a workman in consequence of the defect, 
 the neglect to remedy the defect will make the master 
 liable : Smith v. Harrison, 5 T. L. R. 406 ; Williams 
 V. Whittall, 80 L. T. Jour. 101 ; and see Edwards v. 
 Hutcheon, 16 Ret. 694. 
 
 Thus, where it was known to the employer that a 
 machine would not start without being touched with 
 the hand, and a workman was injured by touching it 
 in order to start it, this was held to be a defect for 
 which the master was liable : Sanders v. Barker, 6 
 T, L. R. 324. So also where it was known that a 
 band was constantly slipping off a pulley, which 
 involved danger to workman in putting it on again, 
 it was held to be a defect for which the em- 
 ployer was liable : Baxter v. Wyman, 4 T. L. R. 255 ; 
 and where a machine was known to start in motion 
 spontaneously, it was held to be a defect for which 
 the employer was liable : Mooney v. Connecticut River 
 Co., 154 Mass. 407 ; Donahtie v. Drown, lb. 21. 
 
 The mere fact that a machine causes an injury to 
 a workman is not enough to render the master liable. 
 It must be proved that the machine was defective, 
 and that the injury was occasioned by the defect : 
 Kay V. Brings, 5 T. L. R. 233 ; Bridges v. Ontario 
 Rolling Mills Co., 19 Ont. 731 ; and see Canada 
 
THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 39 
 
 Southern Ry. Co. v. Jackson, 17 S. C. R. 316 ; ^lewwrsection 3. 
 
 V. Ward, i El. & El. 385 ; 28 L.J. Q. B. 139 : Gavin^"^- ^ 
 
 V. Rogers, 1 7 Ret. 206. Defects in 
 
 machinery. 
 
 Thus, where a boiler burst, but it was not shown 
 the master knew of any defect in it, he was held not 
 to be liable to workmen injured by its bursting : 
 Groves v. Fuller, 4 T. L. R. 474 ; and see Brunell v. 
 Canadian Pacific Ry. Co., 1 5 Ont. 375 : Louisville & 
 Nashville Ry. v. Allen, 78 Ala. 494. 
 
 Where a machine is known to the master or his Liability of 
 foreman to be defective, it would seem to be the p^^P|',?yf^^J'"' 
 master's duty to prevent its use until the defect is use of defec- 
 cured, and that if he suffer it to be used pending his "^® machine, 
 taking steps to remedy the defect, he is responsible 
 under this Act for any injury that may result therefrom 
 to his workmen : Paley v. Garnett, 16 Q. B. D. 52. 
 Attempts to repair, which are known to be ineffectual, 
 will not protect the employer from liability : Hender- 
 son V. Carron Co., 16 Ret. 633. 
 
 {e) "Plant." Includes whatever apparatus is used opij^n^- 
 by a business man in carrying on his business ; not meaning of 
 stock in trade, but all goods and chattels which he 
 keeps for permanent employment in his business : 
 per Lindley, L. J., Yarmouth v. France, 19 Q. B. D. 
 638 ; so that a wharfinger's horse was held to be 
 plant : lb. ; and so was a street car company's horse : 
 Norton v. Edinburgh S. T. Co., 14 Ret. 621 ; Fraser 
 V. Hood, 15 Ret. 178: but it has been held that the 
 employer is not liable if the servant, knowing the 
 
 A 
 
 
40 
 
 THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 
 8 
 
 Ul 
 
 w 
 
 X 
 
 
 
 3 
 
 
 
 5t: 
 5A: 
 
 Section 3. dangerous character of the horse, voluntarily takes 
 
 S S I 
 
 J. the risk of driving it : lb.: Wilson v. Boyle, 17 Ret. 
 
 Defects in 1331. Pla7it, oi cour&e, \nc\\iAQs machinery, 
 plant. 
 
 Plant is not defective, if fit for the purpose for 
 which it is intended, merely because in some unfore- 
 seen contingency it proves a source of danger : 
 Thomas v. Quartermaine , 18 Q. B. D. 685. Where 
 a stanchion slipped off a trolley on which it was 
 being carried and injured a workman, this was held 
 not to be any defect in the plant for which the master 
 was liable : Corcoran v. East Surrey Iron Works, 
 5 T. L. R. 103 ; and where an iron bar used to 
 secure a door was through some negligence of a 
 fellow workman allowed to fall on plaintiff, this was 
 held to be no defect in plant for which the master 
 was liable : Pooley v. Hicks, 5 T, L. R. 353. 
 
 Employer It has been held that in order to make the master 
 
 defects in liable for a defect in plant, it must be his own plant, 
 
 plant used or plant which he has authorized to be used in his 
 
 without his 
 
 authority. busmess. 
 
 Where a ladder or other chattel is borrowed by 
 workmen without the consent or authority of their 
 master, and proves defective and causes injury, this 
 is not a defect in plant for which the master can be 
 made responsible, though it might be otherwise if 
 the ladder were borrowed and used about his busi- 
 ness with his consent, and was known to be defective 
 by him, or any person to whom he entrusted the man- 
 agement of his business : Jones v. Burford, x T. L. R, 
 
 
 ,r<i 
 
THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 4» 
 
 
 137; Perry v. Brass, 5 T. L. R. 253, and see ^//-Section 3 
 wawA V. Walker, 78 L. T. Jour. 391 ; Nicolson v. '^^^ -_ 
 MacAndreWf 15 Ret. 854. 
 
 Defects in 
 plant. 
 
 Where the injury complained of was caused by a 
 defect in a cart hired by the employer, it was held 
 that he was not liable : Allmarch v. Walker, supra. 
 
 When a ladder, sound in itself, but required to be 
 used in a dangerous position, was without efficient 
 provision for preventing it from slipping, this was 
 held to constitute a defect in the plant for which the 
 employer was liable : Weblin v. Ballard, 17 Q. B. D. 
 122 ; 54 L. T. N. S. 532 ; so also a ladder used to 
 support a scaffold by direction of the employer^ 
 though sound in itself, is nevertheless defective within 
 the Act, if it proves insufficient for the purpose : 
 Crippsv. Judge, 13, Q. B. D. 583. 
 
 Where a workman is injured by reason of the ^;""'*'''°" °' 
 omission of any statutory requirement m reference to require- 
 the plant, e.^., the omission to fence machinery assents, 
 required by The Factories Act (R. S. O. c. 208), s. 
 15. that \s prima facie evidence of a defect for which 
 the employer is liable : Baddeley v. Granville, 19 
 Q. B. D. 423 ; 57 L. T. N. S. 268 ; lies v. Abercam 
 Welsh Flannel Co., and Morgan v. Hutchings, 
 supra, p. 37; in fact, if injury results therefrom, it is of 
 itself a cause of action : Dean v. Ontario Cotton Mills 
 Co., 14 Ont. 119; but it was held that no duty is 
 imposed by that section of The Factories Act {R.S. 
 O. c. 208) to guard saws which are propelled by the 
 moving part of the machinery, and where an injury 
 
 V 
 
 
4* 
 
 THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 
 8 
 
 s 
 
 Section 3. 
 s.s. I. 
 
 Defects in 
 plant. 
 
 Defects in 
 buildings or 
 premises. 
 
 resulted to a workman from being thrown against 
 an unguarded saw it was held that it was not a' 
 defect for which he could recover against his em- 
 ployer : Hamilton v. Groesbeck, 19 Ont. 76 ; 18 Ont. 
 App. 437. 
 
 Where a workman is injured by the falling of a 
 scaffolding which has been erected by competent 
 workmen and no defect was apparent or could 
 reasonably have been detected in it, the employer is 
 not liable: see Kettlewell v. Paterson,{\9>9^) 24 Sc. L. 
 R. 95 ; Kiddle v. Lovett, 16 Q. B. D. 605 ; Black v. 
 Ontario Wheel Co., 19 Ont. 578; Ross v. Cross, 17 
 Ont. App. 31. 
 
 Where a bale slipped out of a chain by which it 
 was being lowered and injured a workman, there 
 being no evidence of negligence, it was held to be an 
 inevitable accident and that the employer was not 
 liable : Fawkes v. Poulson, 8 T. L. R. 725. 
 
 A ship is not unseaworthy which is supplied with 
 proper guards for the openings in the bulwarks 
 merely because the captain omits to see them put in 
 place : Hedley v. Pinkney SS. Co., 8 T. L. R. 61. 
 
 (/) "Buildings or premises." These words are 
 not in the corresponding section of the English Act, 
 and it is doubtful whether they add anything to the 
 force of the word "works," pre^'iously used. Even 
 under the English Act the employer has been held 
 liable for defects in the walls of buildings which the 
 employee was engaged to take down : Brannigan v. 
 Robinson, (1892) i Q. B. 344; 66 L. T. N. S. 647 ; 
 see ante p. 30. 
 
THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 43 
 
 nst 
 t a* 
 im- 
 mt. 
 
 jfa 
 tent 
 >uld 
 jr is 
 . L. 
 
 k V. 
 
 f, 17 
 
 ch it 
 here 
 e an 
 ; not 
 
 with 
 I'arks 
 ut in 
 
 s are 
 
 Act, 
 
 o the 
 
 Even 
 
 held 
 
 h the 
 
 an V. 
 
 647; 
 
 (g) " Connected •with, or intended for, or used i«," Section 3 
 
 etc. The ways, works, machinery, plant, buildings 
 or premises, in which the defect exists, must be the ^' *y^' ^^ . 
 employer's own or intended to be used with his ^^^^^ jJe em- 
 authority. Defective machinery or other plant ployers. 
 borrowed by a workman without his employer's 
 authority or consent, though used in the business of 
 the employer, is nevertheless not within the statute : 
 Jones V. Bur/ord, i T. L. R. 137 ; Perry v. Brass, 5 
 T. L. R. 253, and see Allmarch v. Walker, 78 L. T. 
 Jour. 391 : because the employer cannot know of, 
 nor be guilty of any neglect in not remedying such 
 defect ; see s. 6, s.s. i. 
 
 The words ^* intended jor" are not to be found in Defects in 
 the corresponding section of the English Act, and '^^"^^Hl^^^'^^ 
 has been held that the English Act does not apply to construction, 
 ways, works, etc., about to be used, or about towhethe^^^ 
 be connected, and consequently, ways, works, 
 machinery, etc., intended to be used at some future 
 time are not within the Act, e.g., a wall connected 
 with the employer's buildings in course of erection^ 
 or machinery brought into his premises to be erected, 
 but left so insecurely as to fall, are not within that 
 Act : Howe v. Finch, 17 Q. B. D. 187. It is possible 
 that the words intended for in this Act may have the 
 effect of extending it to such incomplete ways, etc., 
 but it is submitted that even with the addition of 
 those words the Act may still be held to apply only 
 to ways, etc., which are intended to be presently 
 used, and not to ways, etc., which are intended to 
 be used at some future time. 
 
 A 
 
 A 
 
 : 0. 
 
'P>l"-i"'-l-'fW:i'U.im»i <]lU..yii>'WHflM Jl'iiMi I ijiMMM 
 
 44 
 
 THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 Section 3. 
 s.s. 2. 
 
 Neglig'enct! 
 of superin- 
 tendent. 
 
 1)1 
 
 f 
 
 81 
 
 Jail 
 
 5 I 
 
 3 
 
 (/t) Sub-Section 2. '*By reason of the negligence ." 
 The first sub-section is confined to injuries caused by 
 defects in ways, works, etc. ; this and the following 
 sub-sections are confined to injuries caused by the 
 negligence of fellow servants in a position of authority 
 over the workman injured. As already pointed out, 
 ante p. 3, prior to the Act an employer was in a 
 large measure shielded from responsibility for injuries 
 so occasioned to his workmen under the defence of 
 Common Employment. This Act virtually deprives a 
 master of that defence as regards injuries caused by 
 the negligence of the class of fellow servants coming 
 within this and the following sub-sections. This 
 sub-section is in the same terms as the corresponding 
 sub-section of the English Act. 
 
 («■) " Who has any superintendence,'''' etc. This 
 section, it will be observed, is confined to cases ot 
 negligence of persons in the employer's service who 
 have any superintendence entrusted while in the 
 exercise of such superintendence. It is not enough, 
 therefore, that a person having superintendence has 
 been guilty of negligence causing personal injury to 
 a workman, in order to render the employer liable ; 
 but it must also be established that the negligence 
 took place tohile in the act of such superintendence. 
 
 It has been held in England that the expression 
 ^'^ person who has any superintendence intrusted to 
 him," means a person whose sole or principal duty is 
 that of superintendence, and who is not ordinarily 
 engaged in manual labour : Shaffers v. The General 
 Steam Navigation Co., 10 Q. B. D. 356; 48 L. T. 
 
THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 45 
 
 by 
 
 ing 
 the 
 rity 
 
 )Ut, 
 
 n a 
 
 ries 
 i of 
 
 s a 
 i by 
 ning 
 This 
 ding 
 
 This 
 es ot 
 
 who 
 t the 
 
 3Ugh, 
 
 e has 
 iry to 
 able ; 
 gence 
 ce. 
 
 ession 
 ted to 
 luty is 
 inarily 
 General 
 L. T. 
 
 N. S. 228 ; but it has already been pointed out, anie Section 3. 
 p. 9, that the definition which this Act gives of the *•"• ^ 
 word superintendence \nc\udes all persons occupying Negligence 
 the position of foremen, whether they are, or are not, of^superin- 
 also ordinarily engaged in manual labor. Such cases 
 therefore as Shaffers v. The General Steam Navigation 
 Co., supra, and Kellard v. Rooke, 19 Q. B. D. 585 ; 
 21 Q. B. D. 367, cannot be relied on as determining 
 the construction of this Act. 
 
 It is not necessary in order to make the employer 
 liable under this sub-section, that the negligence of 
 the superintendent should have arisen in reference to 
 the particular work in which the injured workman was 
 engaged. In Kearney \. Nicholls, 76 L. T. Jour. 63, 
 a workman was engaged in oiling machinery, and a 
 superintendent, engaged as a clerk of the works to 
 oversee the carrying out of certain structural altera- 
 tions in the buildings, was guilty of negligence in 
 reference thereto, in consequence of which the build- 
 ings fell and killed the workman, and the employer 
 was held liable under this sub-section to the repre- 
 sentatives of the deceased workman. In that case 
 Denman, J., said that the true construction of the 
 Act covers "the case where injury happens to anyone 
 in the employment of the owner of the works through 
 the negligenceof a person entrusted with superintend- 
 ence, though in another department of the works or 
 business." 
 
 Although the negligence of the superintendent 
 which makes his master liable must have occurred 
 whilst in the act of such superintendence, yet that does 
 
 J 
 
 i\ 
 

 8 
 
 5 I 
 
 
 46 
 
 Section ,v 
 s.s. 2. 
 
 Negligence 
 of superin- 
 tendent. 
 
 THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 not imply that he must have been in the act of super- 
 intendence when the injury which results from such 
 negligence occurs. The superintendent may have 
 left his master's employ and may have been previously 
 guilty of some neglectful act or omission causing the 
 injury for which, notwithstanding his leaving the 
 master's service, the latter would appear to be re- 
 sponsible. But it has been said the master will not 
 under this sub-section be liable for any negligence of 
 his superintendent which is unconnected with his 
 duty of superintendence ; see Roberts & Wallace, pp. 
 265, 266 ; but it is doubtful whether any negligent 
 acts or omissions of a person whilst acting in the 
 position of a foreman, can be disassociated from his 
 acts as superintendent : see Spens & Younger, pp. 
 226-229; Sweeny v. McGilvray, 24 Sc. L. R. 91. 
 
 In Osborne \. Jackson, 11 Q. B. D. 619, the plaintiff 
 was a bricklayer in the defendant's employment, and 
 was working in the neighbourhood of a scaffolding 
 which was being taken down. Thomas, the defend- 
 ant's foreman, called on Collier, a labourer, to lay 
 hold of the end of a plank which he handed him. 
 Collier took the end of it, but being too far off to get 
 a firm hold, and the foreman letting go his end, the 
 plank fell on and injured the plaintiff. The County 
 Court held the employer liable, and a Divisional 
 Court (Denman & Hawkins, JJ.,) refused to interfere. 
 Denman, J.,said: "The foreman called to CoMier, ho 
 was under his orders, to take the plank ' .vas 
 
 impossible to do so safely ; that was supe aence. " 
 
 In At t ken v. Newport Slipway Dry Dot 3 T. L. R. 
 
THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 47 
 
 er- 
 ich 
 ive 
 isly 
 the 
 the 
 
 re- 
 not 
 e of 
 
 his 
 
 pp. 
 gent 
 
 the 
 1 his 
 
 pp. 
 
 lintiff 
 and 
 Iding 
 sfend- 
 o lay 
 him. 
 :oget 
 d, the 
 ounty 
 sional 
 jrfere. 
 r.who 
 vvas 
 ence. 
 \L.R. 
 
 527, the master was held liable for the negligence ofSei^i'onj. 
 
 his foreman in not giving warning to a workman ' " J 
 
 that a shaft had been disconnected, in consequence Negligence 
 of which the workman was injured by the shaft falling tenXm? 
 on him. So also the master was held liable for the 
 negligence of his foreman in giving orders to lower 
 planks, whereby a workman was injured : Ray v. 
 Wallis, 3 T. L. R. 777 ; and see Wild v. Waygood, 
 (1892) I g. B. 783 (C. A.) ; 66 L. T. N. S. 309, 
 infra. That case, though treated by the Court as 
 coming within s. s. 3, appears also to have been 
 within the provisions of this sub-section. 
 
 Where the person giving the orders in carrying Employernot 
 out which the workman is injured, is not a fellow |Jg[?°jJ^g ^j- 
 servant of the workman, there is no remedy against foreman of a 
 the master under this sub-section. Thus, where a '^°"'''^*^'°'"' 
 master employed a contracLor to put in machinery, 
 and while it was being put in, the foreman of the 
 contractor gave a workman of the master for whom 
 the machinery was being erected, orders, in carrying 
 out which he was injured, it was held that the master 
 of the injured man was not liable : Roberts v. Totten- 
 han Lager Beer Co. , 6 T. L. R. 4. So also, a master 
 is not liable merely because a foreman is directing 
 the work at the time the accident happens, unless it 
 is established that the accident was due to his neo^H- 
 gence as foreman, e. g., where in the course of 
 moving a roll of iron the iron rolled so as to cause i'. 
 workman to fall and injure himself, and it was not 
 clear that the foreman had been guilty of any negli- 
 gence, it was held that the master was not liable : 
 Harris v. Tinn, 5 T. L. R. 221. 
 
 ,/!• 
 
 '■] 
 
48 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 I 81™!*!! I 
 
 
 
 liJ <P 
 
 5 I 
 
 Section 3. 
 s.s. 2. 
 
 S.S. 3. 
 
 ( 
 
 a 
 3 
 
 The omission of a captain of a steamer to see that 
 ti.e openings in the bulwarks of his vessel are 
 properly closed, is not such negligence as will make 
 his employer liable under this section ; and where a 
 sailor was washed overboard and drowned in conse- 
 quence of one of the openings not being closed, it vas 
 held that the vessel was not unseaworthy and that the 
 employers were not liable to the deceased sailor's 
 representatives either under this Act or Lord Camp- 
 bell's Act : Hedley v. Pinkney SS. Co, 8 T. L. R. 61. 
 
 (y) Sub-Section 3. " Negligence of any person in the 
 service of the employer." This -.ub-section is directed 
 of^^'rfon'^^ to the case of injuries residing to a workm.an from 
 under whose his complying with the orders of a fellow servant to 
 manTcted!^'' whose orders he is required to conform. 
 
 The order need not be in express words, but may 
 be implied from the circumstances : Milward v. 
 Midland Ry., 14 Q. B. D. 68 ; 52 L. -} N. S. 255 : 
 as, for instance, when the workman carries out 
 orders given him on previous occasions under like 
 circumstances, and is acting in the ordinary course of 
 business : Cox v. Hamilton Sewer Pipe Co., 14 Ont. 
 300. Where the workman is injured by carrying out 
 improper instructions given him as to the mode of 
 performing his duty, the employer is liable : Madden 
 V. The Hamilton Iron Forging Co., 18 Ont. 55. In 
 an action under this sub-section, the negligence must 
 be proved of a person in the employ of the defendant 
 to whose orders or directions the plaintiff was bound 
 to conform ; and it must be also proved that the 
 injury to the plaintiflF resulted from his conforming to 
 
ACT. 
 
 ! that 
 1 are 
 make 
 lere a 
 ;onse- 
 it vas 
 at the 
 lilor's 
 "amp- 
 i. 6i. 
 
 in the 
 
 rected 
 
 Trom 
 
 ant to 
 
 t may 
 ird V. 
 
 • 255: 
 s out 
 
 ;r like 
 jrse of 
 4 Ont. 
 ng out 
 ode of 
 fadden 
 5- In 
 e must 
 endant 
 bound 
 at the 
 ling to 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 49 
 
 those orders or directions : lb.; but it is not essential to Secti 
 show that such conformity to the orders or directions s.s?3°" ^' 
 was the causa causans of the injury. Thus, if a fore- ^ {• — 
 man directs a workman to put his hand upon ai"7erfon'^ 
 machme, or to stand in a perilous position, and then ^''''"^ °'''*^" 
 negligently starts the machine, or does some act 
 whereby the workman is injured, while in the act of 
 conforming to his orders, the master is liable : Wild 
 V. Waygood, (1892) i Q. B. 783 (C. A.); 6b L.T.N.S 
 309, the dictum of Lord Coleridge, C. J., in Howiz^d 
 V Benneii, 60 L.T.N.S. 152, to the contrary not 
 bemg approved ; and see Cox v. Hamilton Sewer 
 Pipe Co., supra; see, however, Kellard v. Rooke, 
 21 Q. B. D. 367. But where two workmen are 
 working at a machine and one is attending to the 
 startmg of the machine, and the other is attending to 
 the work being done on it, and it is the duty of the 
 starter to give proper notice of when he is going to 
 start the machine, such communication is not 
 an order or direction, within the meaning of this sub- 
 section, so that the master is liable for any negligence 
 in giving it: Howard v. Bennet, supra ; Kellard v 
 Rooke, 2, Q. B.D. 367; Whatley v. Holloway, 62 
 1 . L. N. S. 639 ; and see Brown v. The Buttcrlcy Coal 
 <'^«»-, 53 L.T.N. S. 964. 
 
 When a superior servant, having authority to give 
 orders to other servants, gives an order and negli- 
 gently fails to take reasonable precautions whereby 
 It may be safely carried out, the master has been held 
 responsible : Sweeney v. McGilvray, 14 Ret. 105. 
 
 ■A 
 
50 
 
 THE WORKMEN S COMPENSATION EOR INJURIES ACT. 
 
 Section 3. 
 s.s. 3. 
 
 Negligence 
 of foreman. 
 
 
 8 . 
 
 III x> 
 
 5 I 
 
 8 
 i 
 
 Bearer of 
 orders, negli' 
 gence of 
 
 The order or directions, to bind the master, must be 
 lawful and within the power of the foreman to give, 
 and when a workman obeys what he knows to be an 
 unlawful order, the master cannot be made respon- 
 sible for any injury that results : Bunker v. Midlatid 
 Ry.^ 47 L. T. N. S. 476. The question whether the 
 workman was bound to conform to the order is one of 
 fact depending on the nature of the employment and 
 the custom usual in it : Dolan v. Anderson, 22 Sc. 
 L. R. 529. 
 
 Where the workman has a discretion whether he 
 will, or will not, obey an order given to him by a fellow 
 servant, the order or direction cannot be said to be 
 one to which he is bound to conform, within the 
 meaning of this sub-section. And it has been held 
 that where a fellow servant who is not a foreman is 
 made the medium for giving the orders and directions 
 of the foreman or employer to other workmen, which 
 orders they are bound to obey, he does not thereby 
 become the person giving the orders within this sub- 
 section so as to make the master liable for his negli- 
 gence. Thus, where a carpenter used to receive 
 directions from the employer or his foreman as to the 
 work to be done, and then give orders to the other 
 workmen as to the work each of them was to do, 
 Vt^hich orders they were bound to obey, and after 
 giving a workman instructions as to the work to be 
 done by him, and while the latter was engaged in his 
 work in a shed in which it was not safe for two to be 
 working together, the carpenter came in and pro- 
 ceeded to stack timber in the shed, and in consequence 
 
LCT. 
 
 St be 
 
 e an 
 ;pon- 
 ilatid 
 r the 
 ne of 
 t and 
 2 Sc. 
 
 er he 
 ellow 
 to be 
 1 the 
 I held 
 lan is 
 ;tions 
 Afhich 
 ereby 
 i sub- 
 negli- 
 jceive 
 to the 
 other 
 to do, 
 after 
 to be 
 in his 
 to be 
 I pro- 
 [uence 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 of his negligence, the timber fell and injured the Section 3. 
 workman while so working, it was held that the master »•«• 3- 
 was not liable under this sub-section for the negli- Pers"^iv- 
 gence of the carpenter. The Court (Pollock, B. , ana '"K ^'-''ers, 
 Wills, J.), moreover, said : " We think the order that'^''"'''' 
 is contemplated by this sub-section must be one that 
 is really that of the person * * * * (giving it), 
 and which is the direct offspring of some choice or 
 exercise of judgment and will on his part ; if not, it 
 is not his order at all " : Snowdefi v. Bayncs, 25 Q. B. D. 
 (C. A.) 193. It seems, therefore, from this case that 
 the master is not responsible, under this sub-section, 
 for the negligence of a mere messenger or bearer of 
 the orders of himself or his foreman, "such a person 
 does not give the orders or directions, and it is not his 
 orders or directions that the workmen are to obey. 
 
 {k) Sub-Section 4. ^^ By reason of the act or omis- ^ 
 sion," etc. The words in [ ] are not in the corre-'"'* — 
 spending section of the English Act. This sub- P^'f^''''* '" 
 section must be read in connection with s. 6, s.s. 2, ''**' ^^''' 
 
 post. In order to found a cause of action under 
 this sub-section, the rules or by-laws which pre- 
 scribe the act or omission which has resulted in 
 the injury complained of, must be defective or 
 improper; but if they have been approved or accepted 
 by the Lieutenant (Governor in Council, or otherwise, 
 as mentioned in that sub-section, even though they 
 are defective or improper, the act or omission pre- 
 scribed thereby, though causing injury to a workman, 
 will not give him any cause of action against his 
 employer. This sub-section, in effect, is declaratory 
 
 A 
 
 A 
 
•'i^smuixxjem %iuim!fi 
 
 HO-W.''.'! M^iWWUW 
 
 52 
 
 Section 3. 
 s.s. 4. 
 
 Defects in 
 by-laws, etc. 
 what are. 
 
 
 8 
 5? 
 
 0* mi. 
 
 5 I 
 
 a 
 S 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 of the Common Law, and it brings what was previously 
 a Common Law liability under the provisions of this 
 statute. 
 
 The precise meaning of this sub-section, however, 
 ' is not free from doubt. It is not clear whether the 
 act or omission which causes the injury must be 
 prescribed by express provision in the rules or 
 by-laws ; or whether it would be equally within this 
 sub-section if the act or omission was due to the 
 omission from niles or by-laws of some necessary 
 direction or provision : see Roberts & Wallace, p. 282. 
 It is submitted that the act or omission causing the 
 injury must be prescribed by the' rules or by-laws, 
 and that an act or omission resulting from there 
 being no rules and by-laws, is not within the sub- 
 section ; there may be a liability at Common Law on 
 the latter ground, but there would appear to be none 
 under this statute. At the same time it must be 
 confessed it is not easy to distinguish between a rule 
 that is defective and one that is improper. Defect 
 may, it is true, mean the omission of something 
 which ought to be there ; on the other hand, the 
 defect in rules or by-laws referred to in s. 6, s.s. 2, 
 tnay be confined to those which arise from the rules 
 or by-laws laying down an improper or an inefficient 
 course of action. Where there are no rules or 
 by-laws, they can hardly be said to be defective. 
 The Act implies that there are some rules or by-laws, 
 and it is obvious a defective rule is not the same as 
 no rule at all. Where two workmen were engaged 
 at a circular saw, one feeding it and the other taking 
 
;t. 
 
 is\y 
 this 
 
 ver, 
 
 the 
 
 be 
 
 5 or 
 
 this 
 
 the 
 sary 
 282. 
 
 the 
 aws, 
 here 
 sub- 
 won 
 none 
 t be 
 . rule 
 tefect 
 thing 
 , the 
 ;.s. 2, 
 rules 
 icient 
 js or 
 ctive. 
 laws, 
 ne as 
 jaged 
 aking 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 the wood from it, and one of these men whose duty Section ?. 
 was also to attend to the engine and boiler and assist ''•^s- 4. 5- 
 generally, and who was told "not to neglect the 
 engine," suddenly hearing steam blowing off, left the 
 saw in order to go and attend to the engine, where- 
 upon the other man's hand was rendered unsteady and 
 was in consequence cut and injured by the saw, it 
 was held that the master was not liable, on the 
 ground that, although the injury was caused by the 
 act or omission of the engine man in leaving the saw 
 as he did, yet there was no evidence that such act or 
 omission was " done in obedience to any rule or 
 by-law of the employer, or to any instructions by any 
 delegate of his ": Whatley v. Holloway, 62 L. T. N. 
 S. 639. 
 
 Where a by-law provided that a hole in a vessel 
 should be covered, or " properly lighted and under 
 the control of a special watchman," it was held that 
 an employer who had provided proper lights and a 
 watchman, was not liable for injury to a workman 
 who fell down an uncovered hole, merely because the 
 watchman had left his post when the accident oc- 
 curred : Gray v. Thomson, 17 Ret. 200. 
 
 (/) Sub-Section 5. ''By reason of the negligence," ^■^' 5- 
 etc. This sub-section is confined to injuries arising to Negli^nce 
 workmen employed on railways, tramways or street of' aihvay 
 railways, resulting from the negligence of certain of ^^'■''""*'*- 
 their fellow workmen. This sub-section varies from 
 the corresponding sub-section in the English Act ; 
 the words enclosed in [ ] not being found in the 
 
 53 
 
 :i! 
 
■flRvnranRRV^ 
 
 
 8 
 
 III 99 
 
 I I 
 
 54 
 
 Section 3. 
 s.s. 5. 
 
 Negligeiue 
 of railway 
 servants. 
 
 Engines, 
 what in- 
 cluded. 
 
 S 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 latter, and the comma between the words locomotive 
 and engine in this sub-section does not appear in the 
 English Act. On inquiry, it appears that the original 
 roll contains a comma at this place, and its introduc- 
 tion would seem to extend the operation of this sub- 
 section to engines, other than locomotive engines, 
 which may be used on railways, tramways or street 
 railways. (As to the eflfect of punctuation in the 
 construction of Acts of Parliament : see Barrow v. 
 Wadkin, 24 Beav 327). ^. ^., a stationary engme by 
 which a locomotive is supplied with water, or a 
 stationary engine used for furnishing light, or heat, 
 or power, on a railway or street -ailway, would appear 
 to be within this sub-section, although this kind of 
 engine is not within the corresponding sub-section of 
 the English Act : Murphy v. Wilson, 48 L. T. N. S. 
 788 ; 52 L. J. Q. B. SM ; ^<^d vide Cox v. Greal 
 Western Ry. Co., 9 Q- B. D. 106. The words .n 
 f 1 also extend the section to tramways and street 
 railways to which, it is thought, the English Act 
 does not extend ; Spens & Younger, 249. 
 
 This sub-section applies not merely to railway 
 companies, but to all employers of labour who use 
 railways or tramways for the purposes of their busi- 
 ness and a line of railway laid down for a temporary 
 purpose is within this sub-section : Doughty v. Fir- 
 bank, 10 Q. B. D. 358 ; 48 L. T. N. S. 53°^ It ap- 
 plies to railways under the control of the Dominion 
 Parliament: Canada Southern Railway Co. v. Jackson, 
 17 S. C. R. 316; as well as to railways under the 
 control of the Ontario Legislature. 
 
THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 55 
 
 Using a locomotive engine without a cow-catcher, Section 3. 
 has been held to be negligence, for which the ^•**- S- 
 employer was liable where injury resulted : Tennessee Neg%eiice 
 C. & /. R. Co. V. Kyle, 93 Ala. i ; and so also the"*'''«''way 
 
 • • ^ • ^1 . ,, . . . servants. 
 
 omission to ring the bell on an engine, and going 
 faster in the station grounds than the law allows : 
 Canada Southern Railway Co. v. Jackson, supra. 
 
 meaning- of. 
 
 {m) ' ' IV/io has the charge, " etc. These words are in- < . who has 
 tended only to apply to those who are in a position of the charge, 
 superintsndence, and they are held not to extend to " " ^ 
 
 mere subordinates who have some duty to perform in 
 reference to the points, etc. Thus, a workman whose 
 duty was to clean, oil, and adjust, the points and wires 
 of the locking apparatus along a line of railway, and 
 who was subject to the orders of an inspector in the 
 same department, who was responsible for the condi- 
 tion of the points and locking gear which were 
 worked by men in the signal boxes, was held not 
 to have the charge or cmitrol of the points within 
 the meaning of this sub-section : Gibbs v. Great 
 Western Ry. Co., 12 Q. B. D. 208. According to 
 that case the men in the signal boxes would be those 
 having charge or control within the Act. But even 
 under the English Act it is held that where a number 
 of trucks are negligently set in motion in a goods 
 station by means of power transmitted from a sta- 
 tionary engine, that was a train within the meaning 
 of the sub-section, though no locomotive engine was 
 attached, and that it was none the less '• on the rail- 
 way " because it was in a goods station : Cox v. Great 
 Western Raihvay Co., 9 Q. B. D. 106. Where the 
 
 A 
 
 iK 
 
56 
 
 THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 Section 3. 
 s.s. 5. 
 
 Neglijfence 
 of railway 
 servants. 
 
 lift, 
 
 P' 
 
 ID 9 
 
 5 I 
 
 Points. 
 
 Signal!^ 
 
 8 
 
 s 
 
 evidence fails to show definitely that the accident was 
 due to the negligence of the person in charge, and it 
 is consistent with its having been caused by the negli- 
 gence of the injured workman himself, the action 
 cannot be maintained against the employer: Brunei/ 
 V. Canadian Pact^c Ry. Co., 15 Ont. 375; Farmer 
 V. Grand Trunk Railway Co., 21 Ont. 299. 
 
 (n) *^ Points.'^ By this word is meant the moveable 
 pointed rails at switches ; for further explanation of 
 this term, see note to s. 5, s. s. 3, and diagram, post. 
 
 (o) **Slg7tal." By this term is meant any signal 
 used upon railways, tramways or street railways for the 
 guidance of the traffic thereon, or to herald the ap- 
 proach of trains or engines upon the rails. It would 
 appear to extend not only to signals worked mechani- 
 cally, such as semaphores, but also to signals worked 
 by hand, as, for instance, flags, but it would not seem 
 to extend to signals made by whistling, calling or 
 motions of the limbs, inasmuch as those are not 
 signals of which any person can be said to have 
 charge or control. 
 
 (/) " The workman.'" This expression is to be 
 understood by reference to s. 2, s. s. 3, ante, and s. 
 4, post. 
 
 This sub-section, like sub-sections 2 and 3, is based 
 on negligence. Where the person in charge or con- 
 trol is by sudden illness, e. g , a. stroke of apoplexy, 
 rendered unable to discharge his duty, that is not 
 negligence, and his employer would not be liable for 
 any injury resulting therefrom. 
 
THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 57 
 
 {q) ^^ The legal personal representaiives,'' etc. The 
 effect of these words is practically to extend the pro- 
 visions of what is known as Lord Campbell's Act 
 (R. S. O. c. 135, see post,) to some cases which 
 were not before within its purview. That Act, so far 
 as it affected masters, was confined to cases where 
 the employer himself had by his own negligence 
 occasioned the death of his servant ; this section 
 extends the remedy of the representatives of a 
 deceased servant to cases of negligence, other than 
 the employer's own, for which he is made liable under 
 the provisions of this Act. 
 
 {r) * ' Shall have the same right of compensation , " etc. 
 The right of a workman to compensation, for injury 
 arising from the causes enumerated in this section, is 
 by these words placed as high as, but no higher than, 
 that of a stranger. The master is, as to such causes 
 of action, deprived of the defences of common employ- 
 ment, and that the workman had contracted to take 
 upon himself the known risks of the employment, 
 which were formerly open to him ; but any defence 
 which would be available as against a stranger is 
 still available as against a workman seeking relief 
 against him under this section : Weblin v. Ballard, 
 17 Q. B. D. 122 ; Thomas v. Quartertnuini \ 18 Q. B. 
 D. 685 ; 57 L. T. N. S. 537, and see post notes to 
 s. 6. 
 
 Section 3. 
 s.s. 5. 
 
 Representa- 
 tives of 
 deceased 
 workmen 
 may sue. 
 
 Compensa- 
 tion, right of 
 workman to. 
 
 i\ 
 
 4i.^ — ■{ I ) Where the execution of any work Section 4. 
 is being carried into eflfect under any con- Employer. 
 
 , who to be 
 
 tract, and deemed. 
 
■H 
 
 5« 
 
 Section 4. 
 
 Employer, 
 who to be 
 deemed. 
 
 I' VMMh 
 
 III 9 
 I I 
 
 8 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 (a) The person for whom the work, 
 or any part thereof, is done, owns or 
 supplies any ways, works, machinery, 
 plant, buildings, or premises used for 
 the purpose of executing the work ; 
 and 
 
 (b) By reason of any defect in the 
 condition or arrangement of such ways, 
 works, machinery, plant, buildings or 
 premises, personal injury is caused to 
 any workman employed by the con- 
 tractor or by any sub-contractor ; and 
 
 (c) The defect or the failure to dis- 
 cover or remedy the defect arose from 
 the negligence of the person for whom 
 the work or any part thereof is done, 
 or of some person being in his service 
 and entrusted by him with the duty of 
 seeing that such condition or arrange- 
 ment is proper, 
 
 the person for whom the work, or that part 
 of the work is done shall be liable to pay 
 compensation for the injury as if the work- 
 man had been employed by him, and for 
 that purpose shall be deemed to be the 
 
THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 59 
 
 employer of the workman within the meaning Section 4. 
 of this Act(rt). Provided (b) always, that any Employer, 
 
 1 u 11 u who to be 
 
 such contractor or sub-contractor shall be deemed, 
 liable to pay compensation for the injury as 
 if this section had not been enacted, so how- 
 ever that double compensation shall not be 
 recoverable for the same injury. 
 
 (2) Nothing in this section contained 
 shall affect any rights or liabilities of the 
 person for whom the work is done and the 
 contractor and sub-contractor (if any) as 
 between themselves. 52 V., c. 23, s. 6. 
 
 (a) Shall be deemed lo be l/ie employer of the -workman 
 -mithin the meaning of this Act. This section is not 
 to be found in the English Act, and it has the effect 
 of extending the liability of an employer in a very 
 important particular. 
 
 In England a person who employs a contractor, is Liability of 
 not liable to the contractor's workmen for any injury ^f"Pj°fract 
 they may sustain by reason of any defect in the em- 
 ployer's ways, works, etc. This section, however, now 
 makes the employer of a contractor liable to make 
 compensation to the contractor's •workmen for any 
 injury they may sustain by reason of any defect in the 
 condition or arrangement of the works, etc., owned 
 or supplied by such employer, and used for the 
 purpose of executing the work contracted for, where, 
 through the negligence of such employer, or any 
 person entrusted by him with seeing that the condition 
 
 A 
 
 i\ 
 
 or. 
 
6o 
 
 THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 Section 4, 
 
 Contractor's 
 workmen, 
 rig'hts of 
 
 IF" 
 
 it 
 
 III 9 
 
 51 
 
 a 
 
 or arrangement of the ways, etc., is proper, such 
 defect has not been discovered, or, if discovered, has 
 not been remedied. In short, to this extent his con- 
 tractor's worI<men are put on the same footing as the 
 employer's own worltmen are by s. 3 in regard 
 to their right to compensation for injuries. Thus, 
 while under the English Act the right to compensation 
 for injuries is restricted to cases where the relation- 
 ship of employer and employee exists, this section 
 gives a remedy to certain workmen where no such rela- 
 tionship exists. Under the Act as originally passed 
 without this section, the workman of a contractor had 
 no claim against the person by whom the contractor 
 was employed for any injury occasioned by a defect 
 in the ways etc., of such person : the relationship 
 did not exist which rendered the statute applicable, 
 see per Boyd, C : Finlay v. Miscampbell, 20 Ont 
 ^t P* 35 '• ^"<^ ^^ ^^^ "^ more right than any 
 stranger against the employer of the contractor. 
 
 It will be observed that this section is limited to 
 accidents occasioned by defects in the condition or 
 arrangement of ways^ works, etc. , and does extend to 
 the negligent acts of persons in the position of 
 foremen or superintendents, as does s. 3 ante. As to 
 such acts the liability of a master continues as at 
 Common Law, and he remains liable to the servants 
 of his contractor, in the same way that he is to the 
 public generally, for injuries caused by the negligence 
 of any of his servants in the course of their employ- 
 ment, whether they are in the position of foremen, or 
 in any other position. 
 
THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 6l 
 
 As already pointed out in the notes to s. 3, the Sections 4, 5. 
 owner of the ways, etc., is liable for the injury caused 
 by the defect, if he suffer them to be used after the 
 defect is known, and before it is remedied : see ante, 
 pp. 38, 39- 
 
 (A) " Provided,'' etc. The effect of the proviso is to Contractors 
 preserve the liability of the contractor, or a sub-con- [jfj'il'oi^kmen. 
 tractor, to his workmen under s. 3 ; but the injured 
 workmen cannot recover double compensation. He 
 may in the same action join both his master, and the 
 owner of the ways, works, etc., by whom his master 
 was employed, and recover against both, but the 
 recovery will be against them jointly ; and payment 
 by one will discharge the other. By s.s. 2 the rights 
 of the employer and contractor inter se are pre- 
 served ; and, if, as between them, one is primarily 
 responsible for the injury, he may be called on to 
 indemnify the other against any damages he may be 
 called upon to pay. 
 
 railways. 
 
 5, — Where within this Province personal Section 5. 
 injury is caused to a wori^man {a) employed injuries by 
 on or about any railway: — 
 
 (i) By reason of the lower beams {b) 
 or members of the superstructure of 
 any highway, or other overhead bridge, 
 or any other erection or structure over 
 said railway, {c) not being of a sufficient 
 height from the surface of the rails to 
 
 >' 
 
 ^\ 
 
62 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 Section 5. 
 s.s. 2, 3. 
 
 Injuries 
 
 by railways. 
 
 8 
 
 ID 9 
 
 U 9 
 
 admit of an open and clear headway of 
 at least seven feet between the top of 
 the highest freight cars then running on 
 such railway and the bottom of such 
 lower beams or members ; or 
 
 (2) By reason of the space (d) be- 
 tween the rails m any railway frog, 
 extending from the point of such frog 
 backward to where the heads of such 
 rails are not less than five inches apart, 
 not being filled in with packing ; or 
 
 (3) By reason of the space between 
 any wing rail (c) and any railway frog, 
 and between any guard rail and any 
 other rail fixed and used alongside 
 thereof as aforesaid, and between all 
 wing-rails where no other rail inter- 
 venes (save only where the space be- 
 tween the heads of any such wing rail 
 and railway frog as aforesaid, or be- 
 tween the heads of any such guard 
 rail and any other rail fixed and used 
 alongside thereof as aforesaid, or be- 
 tween the heads of any such wing rails 
 where no other rail intervenes as afore- 
 
THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 said, is either less than one and three- secHon 5. 
 quarters of an inch or more than five^"'^^- 
 inches in width), not being at all times by^"an ways. 
 during every month of April, May, 
 June, July, August, September and 
 October, filled in with packing ; 
 
 such injury shall be deemed and taken to 
 have been caused by reason of a defect 
 within the meaning of sub-section i of sec- 
 tion 3 of this Act. But nothing in this 
 section contained shall be taken or con- 
 strued, as in any respect, or for any purpose 
 restricting the meaning of said sub-section. 
 R. S. O. 1887, c. 141, s. 4. 
 
 This section is not to be found in the English Act. 
 
 (a) " Workman. " Includes any railway servant : see "Workman,' 
 ante s. 2, s.s. 3 : but whether he must be engaged in meaning of. 
 manual labour in order to entitle him to the benefit of 
 this Act, is not altogether clear : see ante p. 24. 
 
 f 
 
 0, 
 
 {b) Sub-Section i . ' 'By reason of the lower beams, " Defects i 
 
 \n 
 
 etc. This sub-section is directed to injuries caused ''^''^^'^y 
 
 . c . . ., , . . bridees, etc. 
 
 by reason ot structures over railways bemg too low, 
 
 thereby causing injury to workmen engaged upon 
 
 trains. The fact that such superstructures are less 
 
 than seven feet higher than the top of the highest 
 
 freight cars running on the railway, constitutes a 
 
h 
 
 III 9 
 
 .8 
 
 64 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 Section 5. defect in the ways, etc., within s, 3, s.s. i, ante- 
 
 *•*• '^ It does not appear to be necessary that the highest 
 
 freight car should have been running on the line at 
 the time the accident complained of took place ; and 
 it would be no answer to a claim for injury arising 
 from the cause here referred to, to show that there 
 was actually a clear space of seven feet between the 
 superstructure and the top of the car on which the 
 accidei.L complained of actually o curred, or the 
 highest car of that particular train of which it was 
 part. 
 
 Dominion The DomWiion Railway Act [c^\ Vict. c. 29), s. 192. 
 
 utv c^2q5' provides that bridges, structures or tunnels, over or 
 provisions of, through, or under, which any railway passes, which 
 as^to bridges, j^ under the control of the Dominion Parliament, 
 "shall at all times be so maintained as to admit of 
 an open and clear headway of at least seven feet 
 between the top of the highest freight cars used on 
 the railway, and the botcom of the lower beams, 
 members or portions of that part of such bridge, 
 erection, structure, or tunnel, which is over the rail- 
 way." By s.s. 5 of that section, however, the 
 Governor in Council may exempt from the operation of 
 that section " any bridge, erection, structure or 
 tunnel which is upon any portion of any line of railway 
 on all the cars of the trains running upon which air- 
 brakes are used, or otherwise "; but whether the 
 exemption by the Governor in Council of any bridge 
 from the operation of s. 192 of The Railway Act, 
 would exonerate a railway company from liability 
 under s. 5, s.s. i, of this Act, is doubtful. 
 
 2 
 a 
 b 
 s 
 
THE workmen's COMPENSATION FOR INJURIES ACT. 65 
 
 (c) ••Railway." This word appears to be used in its Section 5. 
 popular sense, as meaning a way upon which trains *•**"• '» ^' 
 pass, by means of rails ; but the reference to freight "Railway," 
 cars as determining the height of the superstructure '"^^"'"S^ o*" 
 over the railway, would seem to indicate that the 
 term does lot here extend to railways used exclu- 
 sively for the conveyance of passengers. r,treet 
 railways would, therefore, appear not to be within 
 s.s. I. Injuries from similar causes on street rail- 
 ways would be governed by reference to the provi- 
 sions of s. 3, s.s. I, and s. 6, independently of this 
 section. 
 
 (</) Sub-Section 2. "By reason of the space, " etc. Packing of 
 This relates to injuries caused by the want of packing ^'■''&*- 
 of railway frogs, kfrog is formed by jiiining two rails 
 together at an acute angle. The point of such frog 
 would appear to be the apex of the angle thus formed, 
 and from this backwards up to a point where the 
 heads {i.e., the upper part) of the rails are five 
 inches apart, must be packed. For the definition of 
 packing: see s. 2, s.s. 4, ante, p. 8 ; and see also the 
 Dominion Railway Act, (51 Vict., c. 29) s. 262, 
 s.s. 2. 
 
 By the Dominion Railway Act (51 Vict. c. 29), s. Provisions of 
 
 262, s.s. 3, it is provided that "The spices behind oT'"""\ 
 
 J . ^ . ,, ., _ '^ Railway Act 
 
 and in tront ot every railway frog or crossing, and (51 V.c. 29) 
 
 between the fixed rails of every switch where such ^'^ *°- 
 
 spaces are less than five inches in width, shall be filled 
 
 with packing up to the under side of the head of the 
 
 rail." This provision, of course, only applies to 
 
 :^: 
 
66 
 
 THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 Section 5. 
 S.S. 3. 
 
 h 
 
 U 
 
 
 
 u 9 
 
 Wing rails, 
 guard rails, 
 packing of. 
 
 Provisions 
 of Dominion 
 Railway Act 
 (51 V.c. 29) 
 as to. 
 
 railways under the control of the Dominion Parlia- 
 ment, and as regards such railways, this Act does 
 not impose on them any duty in regard to the packing 
 of frogs, etc., beyond what is imposed by The Hat'l- 
 way Act (51 Vict. c. 29). 
 
 {e) Sub-Section 3. '■'■ Any wing rail " etc. Wing 
 rails and guard rails are rails used in the formation 
 of switches for the purpose of enabling trains to pass 
 from one line to another without being derailed. It 
 will be noticed that this sub-section provides that the 
 omission of packing between any wing rail and a 
 frog, and between any guard rail and any other rail 
 fixed and used alongside thereof, and between all 
 wing rails where no other rail intervenes, during 
 the months mentioned, is a defect in the ways within 
 s. 3, s. s. I, unless the intervening space is less than 
 i.^ of an inch or more than five inches. 
 
 The omission oi packing y as mentioned in s. ss. 2, 
 3, being declared to be a defect within s. 3, s.s. 1, 
 would probably be held to be prima facie evidence of 
 negligence of the employer, within the meaning of 
 s. 6, s.s. I, post. 
 
 By the Dominion Railway Act (51 Vict. c. 29) s. 
 262, s.s. 4, it is provided that " The spaces between 
 any wing rail and any railway frog, and between any 
 guard rail and the track rail along side of it, shall be 
 filled with packing at their splayed ends so that the 
 whole splay shall be so filled where the width of the 
 space between the rails is less than five inches ; such 
 packing not to reach higher than to the under side of 
 
T. 
 
 lia- 
 oes 
 ing 
 ail- 
 
 'ing 
 tion 
 jass 
 It 
 the 
 id a 
 • rail 
 1 all 
 ring 
 ithin 
 than 
 
 >S. 2, 
 S. I, 
 
 ce of 
 ng of 
 
 !9) s. 
 ween 
 11 any 
 ill be 
 it the 
 ?/ the 
 such 
 i4« of 
 
 ■.A 
 
 .0. 
 
mm 
 
 ^ 
 
 
 t! 
 F 
 
 
 
 / 
 P 
 
 V 
 
 r 
 c 
 s 
 
 8 
 
C 
 09 
 
 X 
 
 fit 
 
 5 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 67 
 
 the head of the rail : Provided, howevp'' that the Section 5. 
 
 Railway Committee may allow such fin ng to be left^-^- 3^ 
 
 out, from the month of December to he month of Provisions 
 April in each year, both months included." This g' Dommion 
 provision, it will be seen, is not identical in terms Act as to 
 with the requirments of s. 5, s.s. 3, cupra, but 'sP^^g"^;,^^ 
 rather more exacting, inasmuch as the latter practi- etc. 
 cally exonerates the railway from packing where the 
 space between the rails is less than 1^ inches, where- 
 as The Railway Act makes no such exception, but 
 requires all spaces between rails less than five inches 
 to be packed. The latter, too, only enables the Rail- 
 way Committee to dispense with such packing during 
 the months of January, February, and March ; where- 
 as s. 5, s.s. 3, supra, practically exonerates railways 
 from packing such spaces during the months of 
 November, and December, as well as during the three 
 months above mentioned. This Act does not there- 
 fore seem to impose on Dominion railways any 
 duty in regard to packing spaces between rails be- 
 yond what is imposed on them by the Dominion 
 Railway Act. 
 
 What is meant by the technical expressions Frog, Frog, Points, 
 Points, Guard Rail, and Wing Rail vj'iW be more readily ^y|jj^ ^^",j,^ 
 understood by reference to the accompanying dia- meaning of. 
 gram of a railway switch, where the names of the 
 various component parts are indicated : 
 
 6. A workman (a) shall not be entitled Exceptions 
 
 ... .to precednig 
 
 under this Act to any right of compensation provisions. 
 or remedy against the employer in any of 
 the following cases, that is to say : — 
 
 \m 
 
68 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 Section 6. 
 s.ss. I, 3. 
 
 h 
 
 "at C> 
 
 (i) Under sub-section i of section 3, (6) 
 unless the defect therein mentioned arose 
 from or had not been discovered or remedied 
 owing to the negligence of the employer or 
 of some person entrusted by him with the 
 duty of seeing that the [condition or arrange- 
 ment of the ways, works, machinery, plant, 
 building or premises are proper.] R. S. O. 
 1887, c. 141, s. 5 (i). 52 V. c. 23, s. 8. 
 
 (2) Under sub-section 4 of section 3, {c) 
 unless the injury resulted from some impro- 
 priety or defect in the rules, by-laws, or in- 
 structions therein mentioned ; provided, that 
 where a rule or by-law has been approved, 
 or has been accepted as a proper rule or by- 
 law, either by [the Lieutenant-Governor in 
 Council, or under and pursuant to any pro- 
 vision in that behalf of any Act of the Legis- 
 lature of Ontario, or of the Parliament of 
 Canada], it shall not be deemed for the pur- 
 poses of this Act to be an improper or 
 defective rule or by-law. R. S. O. 1887, c. 
 141, s. 5 (2). 
 
 (3) In any case where the workman knew 
 {d) of the defect or negligence which caused 
 
THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 69 
 
 his injury and failed [without reasonable Section 6. 
 excuse] to give or cause to be given within — 
 a reasonable time, information thereof to 
 the employer or some person superior to 
 himself in the service of the employer, unless ,;^^ /fa^-^ T^ 
 he was aware (e) that the employer or such-^^,,^^^ ^ ^^^^^^ 
 superior already knew of the said defect or /i^^^ c^. 3,^ c ^^v<^^ 
 negligence. [Provided, however, that such^'°''''''°-^u^ n^.if.^.4. 
 workman shall not, by reason only of his 
 continuing in the employment of the em- 
 ployer with knowledge of the defect, negli- 
 gence, act, or omission, which caused his 
 injury, be deemed to have voluntarily in- 
 curred the risk of the injury.] R. S. O. 
 1887, c. 141, s. 5 (3). 52 V. c. 23, ss. 7, 9. 
 
 (a) This section restricts the operation of s. 3 very 
 materially. 
 
 •' Workman." For definition of this word, see ante 
 s. 2, s.s. 3 and note p. 14, et seq. 
 
 Sub-Section i. This sub-section is to the same s.s. i. 
 effect as the English Act (s. 2, s.s. 1), except that in VariltwTns of 
 the latter, after the word "person," the words «' in English Act. 
 the service of the employer and " are inserted ; and 
 instead of the words in [ ], the English Act reads as 
 follows : "that the ways, works, machinery, or plant 
 were in proper condition." 
 
 /f\ 
 
 = 5 
 
70 
 
 THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 Section 6. 
 s.s. I. 
 
 Negligence 
 essential to 
 right of 
 action. 
 
 h 
 
 «i9 
 
 I 
 
 (b) ^^ Under sub-section lofs. 3. " Negligence on the 
 part of the employer, or of the person entrusted by him 
 with the duty of seeing that the condition or arrange 
 ment of his wa v s, works, etc. , are proper, is by this sub- 
 section practically made the ground of the liability of 
 the employer for injuries occasioned to workmen by 
 reason of any defect in the condition or arrangement 
 of his ways, etc. The mere fact that the ways, etc., 
 have proved defective and have occasioned injury, is 
 not enough to render the employer liable under this 
 Act, unless it is also established, or can necessarily 
 be inferred, that there was negligence in not dis- 
 covering the defect and remedying it, or in not 
 remedying it after it was discovered : Gavin v. Rogers, 
 17 Ret. 206. Where there is no evidence of negli- 
 gence the action must fail : lb ; Fanner v. Grand 
 Trunk Ry. Co., 21 Ont. 299. Negligence is a breach 
 of duty, and an act or omission does not come within 
 the legal meaning of negligence, unless it is an act or 
 omission in breach of some duty. 
 
 Master, duly 
 of. 
 
 By entering into the relationship of master and 
 servant, a master assumes ipso facto certain duties 
 towards his servant, and the breach of those duties, 
 if it occasion damage to the servant, is negligence for 
 which the master is liable at Common Law. Thus, a 
 master is bound to use ordinary and reasonable care 
 in providing for the sufficiency of the machinery em- 
 ployed, and, though he is not responsible for latent 
 defects, which could not with reasonable care have 
 been discovered, yet he is responsible for patent 
 defects, unless they were known to the workman, when 
 
 
THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 71 
 
 >e 
 m 
 je 
 b- 
 of 
 
 5y 
 
 nt 
 
 ■ » 
 
 is 
 
 lis 
 
 ily 
 
 is- 
 
 lOt 
 
 2?td 
 ach 
 hin 
 t or 
 
 and 
 ities 
 ;ies, 
 ifor 
 s, a 
 care 
 em- 
 tent 
 lave 
 tent 
 /hen 
 
 accepting the employment, who then'may be held to Section 6. 
 
 have accepted the risk as an incident of his employ- "•'*• '^ 
 
 ment : Holmes v. Clarke^ 31 L. J. Ex. 356; FaivkesWAs\.e.r, duty 
 V. Poison, 8 T. L. R. 725 ; sed vide Smith v. Baker, ^^• 
 (1891) A. C. 325; 65 L. T. N. S. 467. So also, 
 it is his duty to see that the machinery he provides 
 for the use of his workmen is in good order, and 
 appropriate to the purpose for which it is required to 
 be used. It is also his duty not to permit it to be used 
 without proper guards, and, if his workmen are in- 
 jured by his neglect of these duties, that is negligence 
 for which he is liable at Common Law, and quite 
 irrespective of this Act : Weems v. Mathieson, 4 Macq. 
 215; Murphy v. Phillips, 35 L. T. N. S. 477; Bartons- 
 hill Coal Co. v. McGuire, 3 Macq. 300, and see Wood 
 V. Pittfield, 26 N. B. R. 210; McDonald v. McFee, 
 16 N. B. R. 159. It is also his duty to have his 
 works carried on on a proper system : Bartonshill 
 Coal Co. V. McGuire, supra; McGuire v. Cairns, 17 
 Ret. 540 : and from time to time to have dangerous 
 machinery examined and tested in order that it may 
 be seen that it continues in a lit and proper condition, 
 and the omission of such duties is negligence for 
 which he is liable at Common Law, if injury results 
 to his workmen : Murphy v. Phillips, supra; Irwin 
 V. Dennystown Forge Co., 22 Sc. L. R. 379 ; Jones v. 
 Sandycroft Colliery Co., 83 L. T. Jour. 406; \Vebb\. 
 Rennie, 4 F. & F. 608. 
 
 Where the master, however, employs competent 
 persons to construct or supply ways, works, ma- 
 chinery, etc., he is not guilty of negligence nor 
 
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 WIUTIR,N.Y. I45M 
 
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7* 
 
 THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 Section 6. 
 
 S.S. I. 
 
 P j^v 
 
 
 liable to his workman who may be injured, either 
 at Common Law or under this statute, because 
 Master, duty it turns out that there are latent defects in such 
 " works, etc., even though they are the result of the 
 
 negligence of the person by whom the works, etc., 
 were constructed, or supplied, unless it can be 
 established that such defects might, and reasonably 
 ought to, have been discovered by the employer or any 
 person entrusted by him to see to the condition or ar- 
 rangement of such works etc. : Black V. Ontario Wheel 
 Co., 19 Ont. 578 ; Webb v. Rennie, supra ; Kiddle v. 
 Lovett, 16 Q. B. D. 605. But where a machine has a 
 known defect, as, for instance, a liability to start in 
 motion of itself, though the cause may not be known, 
 that is not a latent defect, and the master is bound to 
 remedy the defect, and is liable for injuries resulting 
 from it if he do not : see Mooney v. Connecticut River 
 Co., 154 Mass. 407 ; Donahue v. Drown, lb. 21. The 
 master is also liable to his servant at Common Law 
 if he knowingly conceals a danger to which his work- 
 man is exposed, and his workmen suffers injury 
 thereby: see Davies v. England, 33 L. J. Q. B. 321, 
 where a butcher was held liable to his servant, who 
 had been poisoned by cutting up, by his master's 
 orders, the carcase of an animal known to the master, 
 but not known to the servant, to be diseased. And 
 where a master suffered a ladder to be used by his 
 servant which he knew, or had reasonable cause for 
 believing, to be unsafe, the servant being ignorant of 
 the danger, he was held liable at Common Law to 
 the servant for the injuries resulting : Williams v. 
 Clough, ?•■ L. J. Ex. 325. But where there is a known 
 
ACT. 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 73 
 
 either 
 cause 
 
 such 
 )f the 
 
 etc., 
 n be 
 nably 
 ir any 
 or ar- 
 Wheel 
 die V. 
 has a 
 art in 
 lown, 
 ind to 
 jlting 
 River 
 
 The 
 1 Law 
 work- 
 injury 
 
 • 321. 
 , who 
 ister's 
 aster, 
 And 
 by his 
 se for 
 ant of 
 aw to 
 ms V. 
 mown 
 
 danger not due to any negligence of the master, or Section 6. 
 
 anyone for whom he is responsible, but arising ^•^" '• 
 
 inevitably from the nature of the employment, the Mastli^duiy 
 
 servant is deemed to accept the risk, and has no °^" 
 
 actio.! against his master for injuries so resulting, 
 
 either at Common Law or under this statute. The 
 
 law on this subject is expressed in the maxim. 
 
 Volenti non Jit injuria. But, in order that that Maxim, 
 
 maxim may apply, it must be shown that the person ^f*:"-' "."" 
 • • J ^ 1 . . . . '^ " jit tnjurta, 
 
 injured consented to the particular thing being done w»ien appli- 
 
 which involved the risk, and consented to take that '^*^'®' 
 risk upon himself. Such consent need not be ex- 
 press ; it is sufficient if it can be inferred from a 
 general course of conduct : see Wilson v. Boyle, 17 
 Ret. 1331 : it was held not to be applicable when a 
 workman employed in a quarry was injured by a 
 stone falling upon him while in process of being 
 slung over his head by his fellow workmen : Smith v. 
 Baker, (1891) A. C. 325 ; 65 L. T. N. S. 467 ; Green- 
 halgh V. Cwmaman Coal Co., 8 T. L. R. 31 : because 
 the master who employs a workman in work of such 
 a dangerous character is bound to take all reasonable 
 precautions for the workman's safety ; and a negli- 
 gent system of carrying on work, or a negligent 
 mode of using perfectly sound machinery, may make 
 the employer liable at Common Law, and quite apart 
 from any of the provisions of this Act : Sword v. 
 Cameron, i Ct. Sess. Cas. 2nd Series 493 ; Bartons- 
 hill Coal Co. V. McGuire, 3 Macq. 300 ; McGuire v. 
 Cairns, 17 Ret. 540. The mere continuance of a 
 workman in the employment of his master after 
 knowledge of the danger to which he is exposed will 
 
 A 
 
 '3 
 
74 
 
 THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 Section 6. not deprive him of the benefit of the Act : Smith v. 
 
 ^•^" [^ Baker, and Greenhalgh v. Cwmaman Coal Co., supra : 
 
 and evidence which might be sufficient to show that 
 an adult had willingly accepted a risk would be in- 
 sufficient to show that an infant had done so. 
 
 Employer not It is not negligence of an employer at Common 
 supplv^most ^^^ °^ under this Act not to supply the very latest 
 approved and most improved machinery or appliances : Walsh 
 . Whitely, 21 Q. B. D. 371, Mitchell v. Pattillo, 23 
 Sc. L. R. 207, and other cases cited, ante, p. 36, if 
 the machinery be reasonably fit for the purpose in- 
 tended. 
 
 machinery. 
 
 
 Fencing 
 machinery. 
 
 Where a fence round machinery is required by The 
 Factories Act (R. S. O. c. 208), its omission is evi- 
 dence of negligence of the employer : McCloherty v. 
 The Gale Mantifacturing Co., 19 Ont. App. 117 ; 
 Thompson v. Wright, 22 Ont. 1 27 ; Baddeley v. 
 Granville, 19 Q. B. D. 423 ; but see Hamilton v. 
 Groesbeck, 19 Ont. 76 ; 18 Ont. App. 437 : and the 
 absence of usual and ordinary guards to machinery, 
 e.^., the absence of a guard for the drum of a threshing 
 machine, is evidence of negligence for which the em- 
 ployer is liable if injury results to his workman 
 therefrom : Edwards v. Hutcheon, 16 Ret. 694. So 
 also is the omission to fence an aperture in a floor 
 where a stairway is placed : Wood v. Dorrall, 2 T. L. 
 R. 550 : and the omission to provide reasonable and 
 proper means of access to his premises ; where, for 
 instance, a chain was provided to enable workmen 
 to descend into a cellar, and in using it a 
 workman was injured, it was held that the master 
 
THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 75 
 
 was liable, although the chain had been used Section 6. 
 for ten years previously without accident : Previsi v. ^•** '• 
 Gatti, 4 T. L. R. 487 ; and see Ayres v. Bull, 5 Fencing 
 T. L. R. 202. But in Seymour v. Maddox, 16 Q. B. ^'o'^^' «''-"• 
 326, it was held that the master was not liable for 
 the omission to fence a hole in the stage of a theatre 
 the existence of which was known to his servant. 
 
 A master is, by Common Law, bound to employ Master 
 competent servants, and is liable for injuries to his pjoy compe- 
 other servants resulting from his employing incom-t«"t servants, 
 petent fellow servants : Wilson v. Merry, L. R. i Sc. 
 App. 326 ; 19 L. T. N. S. 30 ; Hutchinson v. York 
 Newcastle & B. Ry. Co., 5 Ex. 343 ; 15 L. T. O. S. 
 230. But the master, though bound to be careful in 
 the selection of his servants, does not warrant their 
 competency : Tarrant v. Webb, 18 C. B. 797 ; 
 Bartonshill Coal Co. v. Reid, 3 Macq. 266; Ormond 
 V. Holland, El. Bl. & El. 102 ; Hignland Avenue & 
 Belt Railroad Co. v. Walters, 91 Ala. 435. 
 
 Where young people are engaged in factories, Master'sduty 
 
 and a fortiori where they are within the aee within*" J"7®"''® 
 
 cmDiovccs 
 which their employment is forbidden by any statute, 
 
 e. g., The Factories Act (R. S. O. c. 208), s. 12, or 
 The Mines Act (55 Vic. c. 9, O), s. 54 : see O'Brien 
 V. Sandford, 22 Ont. 136 : there is a greater duty on 
 the employer to take care to avert danger arising to 
 them in the course of their employment than in the 
 case of adults, as to whom no such statutory restric- 
 tion exists : Grizzle v. Frost, 3 F. & F. 622 ; Morgan v. 
 Hiitchings, 6 T. L. R. 219; Sharp v. Fathead Spinning 
 Co., 12 Ret. 574; and the degree of care required is 
 
 A 
 
76 
 
 THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 Section 6. 
 s.s. I. 
 
 r^ii 
 
 h 
 
 in proportion to the youth and inexperience of the 
 
 young persons so employed : Crocker v. Banks, 4 
 
 Master's duty T. L. R. 324 ; Gemmillv. Gourock R. Co., 23 Sc. Sess. 
 
 to juvenile q^^ 2nd Series 421;. And in the case of young and in- 
 employees. ^ '' / o 
 
 experienced persons, it is not suflicient for a master to 
 
 provide them with the means to protect themselves 
 from injury in the performance of their work, but it 
 is also his duty both to point out the d>.iger of their 
 not using the means so provided, and to insist on 
 their using them : Crocker v. Banks, supra : and also 
 to warn them of the dangers attending their work, 
 and to give them adequate instructions how they are 
 to perform it : O'Brien v. Sandford, supra ; and see 
 Ciriackv. Merchants^ Woolen Co., 151 Mass. 152; Glover 
 V. Dwigkt M. Co., 148 Mass. 22 ; but the omission to 
 instru a youth of 17 as to the danger of machinery 
 abouL «vhich he was employed, was held not to be 
 negligence on the part of the employer : Crawley v. 
 Pacific Mills, 148 Mass. 228; Tinkham v. Sawyer, 
 1 53 Mass. 485 ; Pratt v. Prouty, lb. 333 ; and where 
 a youth had been working for three days about a 
 machine before he was injured by it, it was held that 
 he had obtained all the instruction it was incumbent 
 on the master to give him in reference to its manage- 
 ment : Coullard V. Tecumseh Mills, 151 Mass. 85. 
 
 Employer's 
 duty to 
 remedy 
 defects. 
 
 Where a machine is known by the employer to be 
 defective, he is not, under this sub>section, relieved 
 from liability for injury resulting from its use pending 
 the remedying of the defect, even though he has 
 taken steps to remedy it. Thus, where an employer 
 allowed a furnace Which was in a dangerous condi- 
 
THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 77 
 
 tion to be worked, after making ineffectual attempts Section 6. 
 
 to remove the defect, he was held liable for the injury *•"• 'j^ 
 
 thereby resulting to a workman: Henderson v. The 
 Carron Co., i6 Ret. f^""!. 
 
 So far as the negligence of the master himself is Master's lia- 
 
 concerned, s. 3, s.s. i, as limited by this sub-section, ^'"'^y ^^ 
 
 , , Common 
 
 appears to impose no additional liability on him Law, how 
 
 beyond what the Common Law does. In so far as it f**"" extended 
 declares him liable for injuries resulting from defects 
 in the condition or arrangement of his ways, works, 
 etc., which through his negligence he has omitted to 
 discover and remedy, it is declaratory of the Common 
 Law ; but as regards the negligence of the person to 
 whom he entrusts the duty of seeing that the condi- 
 tion or arrangement of his ways, works, etc., is 
 proper, this statute does impose an additional 
 liability on the master, inasmuch as at Common Law, 
 if the person so entrusted were a servant of the 
 master, the master could set up the defence of 
 Common Employment to an action for injuries sus- 
 tained by a fellow workman through his negligence ; 
 whereas, under this statute, that defence is taken 
 away in such cases : see Webltn v. Ballard, 17 
 Q. B. D. 122. The English Act only makes the 
 master liable for the act of the person entrusted with 
 the duty of seeing to the condition or arrangement 
 of the ways, works, etc. , if he is in the service of the 
 master whose workman is injured ; but under this 
 statute (owing to the variation of its language above 
 pointed out), the master is liable for the negligence 
 of the person so entrusted, even though such person be 
 
 / 
 
■^B«WI^ 
 
 78 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 Section 6. 
 s.s, I. 
 
 .I'^li 
 
 
 not in his service. The eflFect of this sub-section, 
 therefore, is to render the master answerable for the 
 negligence of the person so entrusted in regard to 
 defects in the ways, works, etc. (whether in his 
 
 Master's 
 
 liability for 
 
 negligence of 
 
 his foreman, service or not) in the same way and to the same 
 
 extent that he (the master) would be, if personally 
 guilty of the like negligence in regard to the con- 
 dition or iirrangement of his ways, works, etc. 
 
 "Common 
 Employ- 
 ment," when 
 a defence. 
 
 ! 
 
 Other 
 defences. 
 
 P ', 
 
 Although the defence of Common Employment is 
 taken away in the case of injuries caused by the 
 negligence of a person entrusted with the duty of 
 seeing to the proper condition or arrangement of 
 ways, works, etc., in failing to discover or remedy 
 defects therein, yet the employer may still set up 
 that defence as to injuries caused by the negligence 
 of any other fellow servant ; and also the defence of 
 contributory negligence : Weblin v. Ballard, 17 
 Q. B. D. 122 ; 54 L. T. N. S. 532 ; Sttiart v. Evans, 
 49 L. T. N. S. 138 ; or any other defence (subject to 
 the express provisions of this Act) which would be 
 available if the plaintiff were one of the public, and 
 not a servant. 
 
 Contributory Contributory negligence in a plaintiff only means 
 as a 'defence. ^^'^^ ^^ himself has contributed to the accident in 
 such a sense as to render the plaintiff's breach of duty 
 no longer its proximate cause : Thomas v. Quarter- 
 maine, 18 Q. B. D. 685, per Bowen, L.J., at p. 694. 
 Contributory negligence necessarily pre-supposes 
 some degree of negligence on the part of the defend- 
 ant, or of those for whom he is responsible. But, 
 
 m:^ 
 
THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 79 
 
 although there may have been some negligence on Section 6. 
 the part of the plaintiff, he may nevertheless be en- '*•*'• '• _ 
 titled to recover, unless it is shown that by the Contributory 
 exercise of ordinary care he might have avoided the n«&''Kence 
 
 c , , r . 7 .. »** * defence, 
 
 consequences of the defendant s negligence : Bridge 
 
 V. The Grand Junction Ry., 3 M. & W. 244 ; Davies v. 
 Mann, 10 M. & W. 546; Butterfield \ . Forrester, 11 
 East 60. Where contributory negligence is alleged, 
 the burthen of proof is on the defendant who alleges 
 it: Wakelin v. London ff-r' S. W. Ry., 12 App. Cas. 
 41 ; 55 L. T. N. S. 709. 
 
 Where a girl employed in a factory was going up 
 stairs, and a lad, a fellow servant, took hold of her 
 ankles, and she, having a quantity of yarn in her 
 hand, made an attempt to strike him with it, and it 
 caught in a shaft which was unprotected, and she 
 was drawn up and injured thereby, it was held that 
 she was not guilty of contributory negligence : lies 
 v. Abercam Welsh Flannel Co., 2 T. L. R. 547. 
 
 Where steps leading to the master's premises were 
 defective for want of a proper handrail, and a work- 
 woman fell down them and was injured, it was held 
 that the fact that she wore high-heeled shoes, which 
 caused her to stumble on the steps, was contributory 
 negligence on her part which exonerated the master 
 from liability : Ayres v. Bull, 5 T. L. R. 202 ; but the 
 mere fact that a workman continues to work after 
 knowing of the danger, is not contributory negli- 
 gence : Weblin v. Ballard, 17 Q. B. D. 122; 54 L. 
 T. N. S. 532 ; and see Woodward Iron Co. \. Jones, 80 
 Ala. 123, and it is no evidence of his having volun- 
 tarily assumed the risk : see s. 6, s.s. 3. The know- 
 
 4 
 
8o 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 Section 6. 
 
 8.SS. I, 2. 
 
 ledge of a workman of the defect .'iom which the 
 injury arises, and his failure to give notice thereof 
 to his employer, may, however, afford a defence : 
 see notes to s.s. 3, infra, pp. 81, 82 ; and see Highland 
 Avenue &> Belt Railroad Co. v. Walters, 91 Ala. 435. 
 
 ij 
 
 
 "•"• *• (c) Sub-Section 2. ' ' Under sub-section 4 of section j. " 
 
 Variations This sub-section is to the like effect as the corre- 
 from English spending sub-section of the English Act (43 & 44 V. 
 c. 42, s. 2, s.s. 2), but the words in [ ] differ from 
 those to be found in the English Act, though they are to 
 the like purport. As to cases coming within this sub- 
 section see ante s. 3, s.s. 4, and notes thereto, p. 51 
 et seq. 
 
 Defective 
 By-laws, etc. 
 
 The effect of this sub-section is to relieve an em- 
 ployer from liability under the Act for injuries caused 
 by acts or omissions in pursuance of rules or by-laws 
 which have been approved or accepted in the manner 
 mentioned, though actually defective. But it does 
 not follow that an employer is also free from liability 
 at Common Law for injuries so occasioned, if it can 
 be made to appear that such defect in the rules or 
 by-laws is due to personal negligence on his part. 
 Where the rules have a statutory force, e.g. , the rules 
 for working mines, enacted in 55 Vict., c. 9, s. 74 (O), 
 the employer would not be liable for any injury arising 
 from any defect therein. Under this statute he is liable, 
 whether there be any personal negligence on his 
 part or not in reference to the rules or orders, subject 
 to the exception contained in this sub-section ; but 
 at Common Law there must be personal negligence 
 on his part to make him liable for injuries resulting 
 from defective rules or by-laws regulating the work- 
 
THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 8l 
 
 men and their work: see Vose v. Lancashire <!!?• Section 6. 
 Vorks/ure Hy. 27 L.J. Ex. 249; and Smiih v. Baker. ^'^^' '' ^' 
 (1891) A. C. 325, per Lord Halsbury, L. C. at p. 335. Defects in 
 But it is probable that even in an action founded ^y*'*"'*' «"^- 
 on the Common Law liability of the master, he could 
 hardly be held to be guilty of negligence in respect 
 of rules or by-laws which had been approved or 
 accepted in the manner mentioned in this sub-section, 
 unless the defect were a very gross and palpable one. 
 
 (d) Sub-Section 3. ' 'In any case where the workman «• s. 3- 
 knew," etc. This section varies from the correspond- Variai 
 
 'II 
 
 ions 
 
 ing section of the English Act (s. 2, s.s. 3), the words from English 
 in [ ] not being in the English Act. This sub-"^*^'" 
 section constitutes an important limitation to the right 
 of the workman to recover under this Act. 
 
 •*/« any case,'' Sub-sections i and 2 are limited 
 to actions brought respectively under s. 3, s.s. i, and 
 s. 3, s.s. 4 ; but this sub-section appears to apply to 
 all actions under whatsoever section of this Act they 
 may be brought. This sub-section would, therefore, 
 appear to extend, not only to all actions brought 
 under s. 3, but also to those brought under ss. 4 and 5. 
 
 This sub-section debars the workman from any 
 right of action,— (a) if he knew of the defect or neg- 
 ligence, and {b) if not being aware that his employer, 
 or some superior to himself in the service of the 
 employer, also already knows of it, he neglects 
 without reasonable excuse, within a reasonable time, 
 to inform one or other of them of such defect. 
 
 {e) '* Unless he was aware." The neglect of a Neglect of 
 workman to communicate a defect, or negligence, of ^°'"'*'"»9 to 
 which he has knowledge, to his employer or to a dS""'*"*^^ 
 
82 
 
 THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 J Kt, 
 
 l.(.^ 
 
 Section 6. superior in the hitter's service, is not excused by the 
 
 SSI 
 
 "■■'"l fact that the employer or superior actually knew of 
 
 Neglect of jt, unless the injured workman was aware that they, 
 
 communicato o*" cither of them, knew of it. When the workman 
 
 defect. knows that the employer or superior actually knows 
 
 ^^. J.. ■[: . . of the defect, that excuses him from notifying them : 
 
 Stuart V. Evans, 49 L. T. N. S. 138. 
 
 i M f 'li ~ (-'% 
 
 The effect of knowledge by a workman of a defect 
 in the ways, works, etc., or of the negligence by 
 reason of which he suffers injury, has been frequently 
 discussed. 
 
 
 
 ijiii 
 
 At one time it was considered that the remaining 
 in the employment after knowledge of the defect, 
 negligence, or danger, was equivalent to acceptance 
 of the risk, and as justifying the application of the 
 maxim. Volenti non Jit injuria : IVoodUy v. Metro- 
 politan District Railway Co., 2 Ex. D. 384 ; 36 L. T. 
 N. S. 419 : but later decisions have modified the rule 
 there laid down, and even in England, where there is 
 no proviso in the Act similar to that in this 
 sub-section, it has been held that the mere fact of the 
 workman continuing in the employment, after know- 
 ledge of the defect, negligence, act, or omission, 
 which caused the injury, is not any ground for 
 assuming that he voluntarily incurred the risk of 
 the injury : Thrussell v. Handyside, 20 Q. B. D. 359 ; 
 58 L. T. N. S. 344 ; Yarmouth v. France, 19 Q. 
 B. D. 647 ; Brooke v. Ramsden, 63 L. T. N. S. 
 287 ; Sanders v. Barker, 6 T. L. R. 324 ; Anws v. 
 Duffy, lb. 339 ; Smith v. Baker, (1891) A. C. 325. 
 
 The fact of the workman knowing, and not com- 
 municating the defect, etc., as mentioned in this 
 
 'ill' 
 
THE workmen's COMPENSATION KOK INJURIES ACT. 83 
 
 sub-section, ihoufifh a defence to an action under this Section 6. 
 
 statute (see Highland &* Avenue Belt R. Co. v. *""' ■'" 
 
 Walters, 91 Ala. 435), is not a defence to an action 
 founded on the Common Law liability of the master ; 
 Weblin v. Ballard, 17 Q. B. D. J22 ; 54 L. T. N. S. 
 532. 
 
 7. The amount of compensation recover- section 7. 
 able under this Act shall not exceed either j^.^.'^^,. 
 such sum as may he found to be equivalenta'"o""'o<" 
 
 , . / V . compensa- 
 
 to the estimated earnmgs (rt), dunng thetion. 
 three years preceding tht injury of a person 
 in the same grade employed during those 
 years in the like employment within this 
 Province, or the sum of fifteen hundred 
 dollars, whichever is larger ; [and such 
 compensation shall not be subject to any 
 deduction or abatement, by reason, or on 
 account, or in respect of any matter or thing 
 whatsoever, save such as is specially pro- 
 vided for in section 1 2 of this Act]. R. S. O. 
 1887, c. 141, s. 6 ; 52 V. c. 23, s. 10. 
 
 This section varies materially from the correspond- Limit of 
 ing section in the English Act (s. 3). That Act^^" ^_ 
 names the estimated earnings for three years, as in tion. 
 this Act, as a measure of the damages, but does not 
 name a lump sum ; and the words in [ ] are alto- 
 gether omitted. 
 
 (fl) " Estimated earnings." The actual earnings of fr^^^PffJ"^^" 
 the injured workman for the preceding three years estimated. 
 
 ,a: 
 
84 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 Section 7. 
 
 Compensa- 
 tion, how 
 estimated. 
 
 I 
 
 are not to be taken as the measure of damages, but 
 the estimated earnings of a person in the same grade 
 employed during the three years in the like employ- 
 ment. If the actual earnings of the injured man were 
 taken, they might, on the one hand, be excessive, 
 owing to extraordinary circumstances, and, on the 
 other hand, they might be unusually small, owing 
 to sickness or misfortune, or inability to procure work. 
 The test this section proposes is apparently the aver- 
 age wages of three years of a person in the same 
 grade fairly employed, and making all due allowances 
 for off days in those trades where there is necessarily 
 an enforced period of idleness during the winter 
 months. When the wages estimated for three years 
 are less than $1,500, then the latter sum may be the 
 limit of damages. 
 
 But while the jury, or the Court when the action 
 is tried without a jury, may give damages up to this 
 amount, they are not bound to give as much ; and 
 the damages awarded, while they cannot exceed, 
 may be any amount less, that the circumstances of the 
 case may be thought to justify ; and they may be 
 arrived at in any way that seems just, so long as the 
 total amount does not exceed the limit in this section. 
 
 Where a jury assessed damages on the basis (i) 
 of the amount of wages earned from the employer, 
 (2) of the wages earned by working overtime for 
 another employer, and the aggregate amount did not 
 exceed the limit prescribed by this section, the Court 
 held that the jury were at liberty so to assess the 
 damages : Bortick v. Head, 53 L.T.N. S. 909 ; and 
 where a jury allowed damages on the basis of los. 
 per week for seven years, but the total amount did 
 
THE workmen's COMPENSATION FOR INJURIES ACT, 
 
 85 
 
 not exceed the limit allowed by this section, the Court Section 7. 
 declined to interfere : Owens v. Maudslqy, 72 L.T. 
 Jour. 299 ; and see May v. Bartle, 90 L.T. Jour. 41 1, 
 where a judge allowed a certain amount for loss of 
 work up to the trial of the action, a further amount 
 for "diminution of his wage-earning capability for 
 seven or eight years," and a further sum for pain and 
 suffering, the whole not exceeding the limit pre- 
 scribed. 
 
 When an action is based on the Common Law Peductions. 
 liability of the employer, sums received under an in- 
 surance policy against accidents cannot be taken 
 into account in reduction of damages : Bradbuni v 
 Great Western Rv., L.R. 10 Ex. 2 ; 31 L. T. N. S. 
 464. But where the injury has resulted fatally, it would 
 seem from Grand Trunk Ry. Co. v. Jennings, L.R. 
 13, A.C. 800, that the advantage gained by the ac- 
 celeration of the payment might be deducted ; or, in 
 other words, the difference in value between an 
 amount presently payable, and the same amount 
 payable according to the expectancy of life of the 
 injured workman at the time of his death ; but such 
 a deduction could not be made from the damages 
 recoverable under this Act. The only deduction which 
 can be made is that mentioned in s. 1 2, post. 
 
 8. When in any action under this Act Section 8. 
 compensation («) is awarded in the case of Distribution 
 
 t t t r 1 c • • ofcompensa- 
 
 the death of a workman for an mjury sus-t,on. 
 tained by him in the course of his employ- 
 ment, the amount recovered, after deducting 
 the costs not recovered from the defendant, 
 may, if the Court or Judge before whom the 
 
 ■-ll 
 
86 
 
 THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 
 Secti on 8 . action is tried so directs, be divided between 
 Distribution the wife, husband, parent and child (b) of 
 Hon?"'''^"'"' the deceased in such shares as the Court or 
 Judge, with or without assessors (c), as the 
 case may be, or, if the action is tried by a 
 jury, as the jury may determine. 52 V. 
 c. 23, s. 14. 
 
 There is no corresponding- section to this in the 
 English Act. 
 
 («) "Compensation." By s. 3, as we have seen, the 
 compensation recoverable under this statute may be 
 recovered, not only by the injured workman, but, in 
 the event of his death, by " his legal personal repre- 
 sentatives {i. e. , his executors or administrators) ^ and 
 any persons entitled in case of death. " The ordinary 
 rule of law in regard to personal injuries, is that the 
 right of action therefor is at an end upon the death 
 of either the injuring or the injured person, the maxim 
 hexng Actio personalis moritur ctim persona ; but this 
 statute and Lord Campbell's Act (R.S.O., c. 135), 
 post, have created an important exception to this rule 
 of the Common Law. 
 
 Right of re- Where an action has been commenced by an in- 
 fo ^cmit^nue^^j"''®^ workman and he dies pending the action, the 
 action com- proper course would now appear to be, not to com- 
 mence a new action under Lord Campbell's Act 
 (R.S.O., c. 135), but to obtain an order to continue the 
 proceedings in the name of the persons entitled to 
 recover the compensation : see Wood v. Gray, (1892) 
 A. C. 576 ; 67 L. T. N. S. 628. In White v. Parker, 
 16 S. C. R. 699, it was decided that an action com- 
 
 menced by 
 deceased. 
 
THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 87 
 
 menced by a deceased person for injuries caused by Section 8. 
 the negligence of the defendants' servant, and based j^.^j^^ ^.^^ 
 on a Common Law liability, could not, upon his presentatives 
 death pendente lite be revived and continued by his *^o ^S°J|'|.'J^'Jj^_ 
 personal representatives under I ord Campbell's Act. menced by 
 But it may be, that owing to the way m which the 
 right to compensation under this Act is given to the 
 deceased's personal representatives (see s. 3, ante p. 
 26), that that decision may be held not to be applicable 
 to actions brought under this Act. 
 
 Lord Campbell's Act (R.S.O., c 135, s. 3) provides 
 that actions under that Act are to be brought in 
 the name of the personal representatives of the 
 deceased, and, if within six months {i. e., calen- 
 dar months : R.S.O., c. 1, s. 58, s.s. 15) after the 
 death of the deceased they do not bring the action, 
 then it may be brought by, or in the name or names 
 of, all or any of the persons beneficially entitled. 
 
 The proper persons to continue proceedings brought 
 by a deceased workman, would, therefore, ap^ xr to be 
 his legal personal representatives (if any), who have an 
 exclusive right for six calendar months after his 
 decease. If, however, there be no legal personal repre- 
 sentatives, or no proceedings are taken by them within 
 that time to continue such proceedings, then the per- 
 son or persons, or any of them, beneficially entitled 
 to the damages recoverable, would be entitled to 
 continue the proceedings in his or her name or names, 
 provided they obtain he order to continue the pro- 
 ceedings within twelve calendar months from the 
 death of the deceased workman : see s. 9, tn/ra, and 
 R.S.O., c. 135, s. 5. and notes, post. 
 
88 
 
 THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 Section 8. 
 
 5 hi; 
 
 Distribution 
 of compen- 
 sation. 
 
 Under Lord Campbell's Act the damages recovered 
 are not to form part of the deceased person's general 
 estate, and, as such, be distributed in the ordinary 
 course of administration ; but they are to be appor- 
 tioned among the deceased's relatives coming under 
 the category of lot/e, husband, parent and child, as 
 these terms are defined by s. i of that Act. This 
 section appears to conflict somewhat with R.S.O. , 
 c. 135, s. 8, inasmuch as it provides that the compen- 
 sation recovered ^^ may be divided," whereas Lord 
 Campbell's Act is imperative, and provides that the 
 damages recoverable under that Act ^^ shall be 
 divided." 
 
 "Parent" (3) *^ Parent and child." It is probable, though it is 
 
 and " child, ^^^ g^ stated, that the words Parent and child in this 
 meanuig of, '^ 
 
 section, were intended to have the same wide and 
 
 extensive meaning as they have in R.S.O., c. 135. 
 
 but whether they, in fact, mean in this section more 
 
 than the words ordinarily signify, is, to say the least, 
 
 doubtful, and remains to be determined. 
 
 Assessors, 
 duty of. 
 
 [c) "Assessors." As to the mode of appointing assess- 
 ors, see post, s. 16. It does not appear to be in- 
 tended that the assessors shall have anything to do 
 with the apportionment of the compensation, their 
 duties being confined merely to assist the Judge in 
 fixing the gross amount to be allowed. The concluding 
 words of this section appear merely to mean that the 
 Court or Judge, whether acting with or without the 
 assistance of assessors, as provided by s. 16, post, 
 may make the apportionment, but where there is a 
 jury the jury is to make ii. 
 
THE workmen's COMPENSATION FOR INJURIES ACT. 89 
 
 9. An action for the recovery under this ^«'*ct|on^. 
 Act of compensation for an injury shall not Limit of time 
 be maintainable [against the employer of of compensa- 
 the workman («)], unless notice {6) ihat 
 injury has been sustained is given within 
 twelve weeks (c), and the action is com- 
 menced within six months from the occur- 
 ence of the accident causing the injury, or 
 in case of death within twelve months from 
 the time of death ; provided always that in 
 case of death the want of such notice (af) shall 
 be no bar to the maintenance of such action, 
 if the Judge shall be of opinion that there 
 was reasonable excuse for such want of 
 notice. R. S. O. 1887, c. 141, s. 7. 52 V. 
 c. 23, s. I I. 
 
 This section is to the same effect as the correspond- 
 ing section of the English Act (s. 4), with the 
 following variations : The words in [ ] are omitted 
 and the time for giving notice is only six weeks. 
 
 («) " Employer 0/ //le -workman." Notwithstanding 
 the words in brackets, this section applies to all actions 
 brought under the Act, including those under s. 4 
 against a person for whom work is being done by a 
 contractor, and who, under sect. 2, s.s. 2, is, for the 
 purpose of making compensation to the servant of 
 the contractor under s. 4, included in the definition 
 of employer. 
 
 'i 
 
m^mmmmmmmm'm 
 
 i ■ 
 
 ■ V- 
 
 90 
 
 Section 9. 
 
 Notice of 
 claim. 
 
 Time for 
 bringing 
 action, how 
 computed. 
 
 Limitation of 
 time for 
 bringing 
 actions. 
 
 THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 (b) "Notice." For the form of notice to be given 
 and mode of service : see post, s. 13 ; and as to the 
 effect of want of notice as a defence to the action : 
 see s. 13, s.s. 5, and s. 14 and notes. 
 
 (c) " Twelve weeks." The twelve weeks mentioned 
 in this section are to be reckoned exclusive of the day 
 on which the accident happened : see South Stafford- 
 shire Tramways Co. v. Sickness and Accident Assurance 
 Ass'n., (1891) I Q. B. D. 402. 
 
 The twelve months and six months mentioned in this 
 section are calendar months : see The Interpretation 
 Act, (R. S. O. .1) s. 8, s.s. 15. By R. S. O. c. 135, 
 s. 5, post, tht same twelve months' limit of time is 
 fixed for bringing an action under that Act. There 
 would obviously be a difficulty in giving literal effect 
 to these provisions in the case of an action com- 
 menced by a workman in his lifetime and continued 
 by his representatives after his death, unless (as 
 doubtless would be the case) the obtaining of the 
 order to continue the proceedings by the deceased 
 workman's representatives were regarded as the com- 
 mencement of the action so far as they were concerned, 
 inasmuch as both this section and R. S.'O. c. 135, 
 s. 5, are imperative that the action by the representa- 
 tives shall be brought within twelve months after the 
 workman's death, v''->if;h it would be impossible to 
 comply with v. «l,i action had been commenced 
 
 in his lifetiine , . Wood v. Gray, (1892) A. C. 576 ; 
 67 L. T. N. &•. O :*< 
 
 An action would be commenced in time if the writ 
 were issued within the time limited, although it may 
 not have been served within that time. 
 
THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 91 
 
 This section is to be read in connection with s. 18, *_ ^' 
 
 post, which, in effect, provides that when the last day Limitation of 
 for fifivine: a notice or commencingf an action falls on ^"?® }°'' 
 a Sunday, it is to be deemed to be given or com- actions, 
 menced in time if given on the following Monday ; 
 and if thai day should be a non-juridical day, it would 
 seem that the time would be still further extended to 
 the next juridical day thereafter: see The Interpretation 
 Act, (R. S. O. c. i) s. 8, s.s. 17. 
 
 Notwithstanding this section, wherever there is 
 any statutory provision limiting a shorter period than 
 is mentioned in this section for bringing an action 
 against any particular person or body corporate, 
 it is not altogether free from doubt whether or not 
 such special provision would prevail over this general 
 provision. Thus, where the former Railway Act, 
 (R. S. C. c. 109) s. 27, limited six months for bring- 
 ing an action against a railway company, it was held 
 that an action by the personal representative suing 
 under Lord Campbell's Act must be brought within 
 the six months limited by The Railway Act, notwith- 
 standing Lord Campbell's Act allowed actions there- 
 under to be brought within twelve months of the 
 death of the deceased : see s. 5 of that Act, post, 
 and notes; Conger v. Grand Trunk Ry. Co., 13 
 Ont. 160 ; but see Zimmer\. The Grand Trunk Ry., 
 19 Ont. App. 693 ; The Canadian Pacific Ry. Co. v. 
 Robinson, (1892) A. C. 481 ; 67 L. T. N. S. 505. It 
 may be, that notwithstanding these cases, so far as 
 the workman himself is concerned, he would be 
 bound to bring his action within the time limited by 
 any special statutory provision affecting particular 
 persons or bodies corporate. 
 
msaa 
 
 qp 
 
 92 
 
 M 
 
 i 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 Section 9. (d) " Wantofsuchnotice." The want, or insuffi- 
 
 ciency, of a notice, is not necessarily a bar to the 
 
 action, even when the workman himself is suing : see 
 s. 13, s.s. 5, and s. \^, post. 
 
 Section .0. 10, No contract or agreement made or 
 ContT^t by entered into by a workman shall be a bar 
 XnTo"con-or constitute any defence to an action for 
 defel.ce to the recovery under this Act of compensation 
 action for f^^ ^nv injury 
 
 compensa- j j ^ 
 
 *'°"- (,) Unless for such workman enter- 
 
 ing into or making such contract or 
 agreement there was other consideration 
 than that of his being taken into or 
 continued in the employment of the 
 defendant ; nor 
 
 (2) Unless such other consideration 
 was in the opinion of the Court or 
 Judge before whom such action is tried, 
 ample and adequate ; nor 
 
 (3) Unless, in the opinion of the 
 Court or Judge, such contract or agree- 
 ment in view of such other considera- 
 tion was not on the part of the work- 
 man, improvident, but was just and 
 reasonable ; 
 
 and the burthen of proof in respect of such 
 other consideration, and of the same being 
 
 vr. 
 
THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 93 
 
 ample and adequate, as aforesaid, and that ^'''^^'"" '"■ 
 the contract was just and reasonable and Contract bv 
 
 i« • J i. r 'Ji-ii* workman, 
 
 was not improvident as atororaid, shall, in when to con- 
 all cases, rest upon the defendant ; provid- j£^,^\^, 
 incf always that notwithstanding- anythingf"*^''""'''"' 
 
 o J o ^ o compensa- 
 
 in this section contained, no contract ort«on. 
 agreement whatsoever made or entered into 
 by a workman shall be a bar or constitute 
 any defence to an action for the recovery 
 under this Act of compensation for any 
 injury happening or caused by reason of 
 any of the matters mentioned in section 5 
 of this Act. R. S.O. 1887, c. 141, s. 8. 
 
 There is nocorrespondingsection in the English Act. 
 
 But for this section there was no bar whatever to 
 a workman contracting himself out of the Act : 
 Griffithsv. Dudley, 9 Q.B.D. 357 ; 47 L.T.N, S. 10 ; 
 and see Read v. The Great Eastern Ry. Co. , infra. 
 
 This section does not absolutely prevent the making 
 of such contracts, but merely imposes certain condi- 
 tions as to the consideration therefor. Irrespective 
 of this section, any such contract obtained by fraud 
 or misrepresentation is liable to be set aside : see 
 Hirschfield v. London &• Brighton <&■" South Coast 
 Ry., 2 Q.B.D. I. 
 
 Where the injured workman has accepted a sum 
 in satisfaction of his injury, no subsequent action 
 can be brought by his representatives in case he 
 should subsequently die from the effect of such injury : 
 Read v. Great Eastern Raihvay Co., L.R. 3 Q.B. 555 ; 
 
 .■■1 
 
 3 
 
94 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 Section lo. 
 
 ! 
 
 Section 1 1 . 
 
 Liability of 
 personal 
 representa- 
 tives of 
 employers. 
 
 i8 L.T.N. S. 822. A receipt expressed to be in full 
 satisfaction is not conclusive evidence of accord and 
 satisfaction, but may be rebutted : Lee v. Lancashire 
 er Yorkshire Ry. Co., L. R. 6 Ch. 527; 25 L.T.N.S. 77. 
 
 11. Notwithstanding anything contained 
 in this Act, an action under sections 3, 4 or 
 5 shall lie against the legal personal repre- 
 sentatives of a deceased employer (a). 52 V. 
 c. 23, s. 15. 
 
 («) " Employer. " See anie, s. 2, s.s. 2, and s. 4 and 
 notes. 
 
 There is no corresponding section in the English 
 Act, and the result is that there is no right of action 
 under that Act against the representatives of a de- 
 ceased employer. 
 
 Where the employer dies pending the action, it 
 may, under this Act, be continued against his legal 
 personal representatives. 
 
 Where the action is commenced, in the first place, 
 against the personal representatives of a deceased 
 employer, they are entitled to the notice under s. 9, 
 ante, unless it had been duly served on the employer 
 in his lifetime. 
 
 The action against the representatives of a deceased 
 employer must be commenced within the time limited 
 by s. 9. Difficulty may, in some cases, arise by 
 reason of letters of administration not being granted 
 to a deceased employer's estate. Under Con. Rule 
 311, the High Court of Justice has power to appoint 
 an administrator ad litem ; and a judgment recovered 
 against him would bind the general administrator. 
 
 
 11! 
 
 m ii 
 
THE workmen's compensation FOR INJURIES ACT. 
 
 95 
 
 though there might be difficulty in realizing the judg- Section n. 
 ment against the estate, except by administration LiabUii v of 
 proceedings. personal 
 
 representa- 
 
 Even at Common Law, where the action is founded "*'*''! "* 
 , , - employers. 
 
 on breach of contract, express or imphed, it would 
 
 seem that it may be maintained against the represen- 
 tatives of a deceased employer : Connolly v. S/iives, 
 18 N.B.R. 606. 
 
 12. There shall be deducted from any Section 12. 
 compensation awarded to any workman orMoney^ay- 
 representatives of a workman («), or persons p^jf^UJ'{^'"bt, 
 claimincf by, under, or throucfh a workman deducted 
 
 ° ** from coni- 
 
 m respect of any cause or action arising pensation. 
 under this Act, any penalty [or damages], 
 or part of a penalty [or damages] which may 
 in pursuance of any other Act, [either] of 
 [the] Parliament [of Canada, or of the Legis- 
 lature of Ontario,] have been paid to such 
 workman, representatives or persons in re- 
 spect of the same cause of action (3) ; and 
 where an action has been brought under 
 this Act by any workman, or the represen- 
 tatives of any workman, or any persons 
 claiming by, under, or through such work- 
 man, for compensation in respect of any 
 cause of action arising under this Act, and 
 payment has not previously been made of 
 
 
96 
 
 THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 Section 12. 
 
 Money pay- 
 able under 
 Cenalty to 
 e deducted 
 from com- 
 pensation. 
 
 ,il : 
 
 i 
 
 any penalty or damages, or part of a pen- 
 alty or damages under any [such] Act, 
 [either] of [the said] Parliament, [or of the 
 said Legislature,] in respect of the same 
 cause of action (b) such workman, representa- 
 tives or persons shall not, so far as the said 
 Legislature has power {c) to enact, be entitled 
 thereafter to receive in respect of the same 
 cause of action, any such penalty or dam- 
 ages, or part of a penalty or damages, under 
 any such last mentioned Act. R. S.O., 1887, 
 c. 141, s. 9. 
 
 The English Act (s. 5) is to ths same effect, but 
 omits the words in [ ]. 
 
 {a) "Representatives of a loorkman," etc. These 
 words include not only his legal personal representa- 
 tives, but also the persons who may be personally 
 entitled to the compensation in the event of his death 
 by virtue of this Act, or of Lord Campbell's Act, 
 (R.S.O. c. 135) post ; see s. 3, ante, p. 26. 
 
 {b) " The same cause 0/ action, " etc. A cause of action 
 is defined to be the whole facts and circumstances 
 which give rise to a right of action. Assuming that to 
 be a correct definition, these words do not seem to be 
 very happily chosen. The cause of action for a 
 penalty, and the cause of action for compensation 
 under this Act, cannot be the same, although they 
 may both in part rest on the same state of facts. 
 
THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 97 
 
 Money pay- 
 able undei- 
 penaltv to 
 be deducted 
 from com- 
 pensation. 
 
 The words are used here in a limited sense, and are Section 12. 
 evidently intended to refer only to those negligent 
 acts or omissions which are common to both a cause 
 of action for a penalty, and a cause of action for 
 compensation. 
 
 The effect of this section appears to be this : If a 
 penalty has been recovered by the injured workman 
 or his representatives in conseque.icc of the negligent 
 act or omission for which compensation is claimed 
 under this Act, J,hen the amount of such penalty is to 
 be deducted from the amount awarded by the Court or 
 jtry for compensation. That is to say, the compen- 
 sation is to be fixed without reference to the penalty, 
 and from the amount so fixed the amount which has 
 been paid by way of penalty is then to be deducted, 
 and judgment given for the balance only. 
 
 If, on the other hand, the employer is liable to a 
 penalty, but it has not been paid at the time any 
 action is commenced under this Act in respect of the 
 same negligent act or omission for which the penalty 
 is paya le, neither the workman nor his representa- 
 tives can thereafter sue for the penalty or any part of 
 it. In other words, if he or his representatives sue 
 for compensation under this Act, they are thereby 
 barred of any right which they may have had to sue for 
 any penalty payable by reason of the same wrongful 
 act or omission, so far as the Ontario Legislature can 
 bar them. 
 
 (c) ' 'So far as the said Legislature has power. " The 
 recovery of compensation under this Act might pos- 
 sibly be held not to be a bar to the subsequent recov ;ry 
 of a penalty imposed by a Dominion statute. 
 
98 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 Section 13. 
 
 
 
 Form and 
 service of 
 notice of 
 injury 
 
 13. (i) (a) Notice in respect of an injury 
 under this Act shall give the name and 
 address of the person injured, and shall 
 state in ordinary language the cause of the 
 injury and the date at which it was sus- 
 tained, and shall bo served on the employer, 
 or if there is more than one employer, upon 
 one of such employers. 
 
 (2) (a) 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. 
 
 (3) (a) 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 place of residence or place of busi- 
 ness, and if served by post shall be deemed 
 to have been served at the time when a 
 letter containing the same would be deliv- 
 ered in the ordinary course of post, and in 
 proving the service of such notice it shall 
 be sufficient to prove that the notice was 
 properly addressed and registered. 
 
 (4) (<r) Where the employer is a body of 
 persons corporate or unincorporate the 
 
ACT. 
 
 THE WORKMEN S COMPENSATION TOR INJURIES ACT. 
 
 99 
 
 njury 
 and 
 
 shall 
 )f the 
 ) sus- 
 loyer, 
 
 upon 
 
 jd by 
 mce or 
 horn it 
 
 ved by 
 to the 
 his last 
 f busi- 
 deemed 
 when a 
 )e deliv- 
 and in 
 it shall 
 ;ice was 
 
 body of 
 ■ate the 
 
 notice shall be served by delivering the same s^*^''^" '3- 
 at or by sending it by post in a registered Form and 
 letter addressed to the office, or if there be notice of 
 more than one office, any one of the offices '"■'"'^^* 
 of such body. R.S.O., 1887, c. 141, s. 10 
 
 (1-4). 
 
 (5) {b) The want or insufficiency of the 
 notice required by this section, or by section 
 9 of this Act, shall not be a bar to the main- 
 tenance of an action for the recovery of 
 compensation for the injury if the Court or 
 Judge before whom such action is tried, or, 
 in case of appeal, if the Court hearing the 
 appeal is of opinion that there was reason- 
 able excuse for the want or insufficiency, 
 and that the defendant has not been thereby 
 prejudiced in his defence. 52 V., c. 23, 
 s. 12. 
 
 (6) (r) A notice under this section shall 
 be deemed sufficient if in the form, or to the 
 effect following : — 
 
 To A. B., of {here insert employer's 
 address ) 
 or To the Company, {or as 
 
 the case may be. ) 
 
lOO 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 If % 
 lis 
 
 W 
 
 ii 
 
 Section 13. Take notice, that on the day 
 
 Form and of 1 89 CD., of {tHsert address 
 
 service of 
 
 notice of of ifijurcd pevsofi) {d) 2i workman in your 
 "'^"'^^' employment sustained personal injury, {add^ 
 
 of which he died, if such be the case)^ and 
 that such injury was caused by {e) {state 
 shortly the cause of injury^ e.g. , the fall of 
 a beam). 
 
 (Date.) 
 
 Yours, etc., 
 
 X.Y. 
 R.S.O., 1887, c. 141, s. 10(6). 
 
 {a) Sub-Sections 1-4, inclusive, are in the same 
 words as the corresponding sections of the English 
 Act (s. 7). 
 
 Variation of [b) Sub-Section 5 differs materially from the Eng- 
 Engnih" Act. ''•'^^ Act (s. 7, s.s. 5). That Act only provides that 
 defects or inaccuracies in the notice shall not invali- 
 date it, unless the Judge who tries the action shall be 
 of opinion that the defendant is prejudiced in his 
 defence by such defect or inaccuracy, and that the 
 defect or inaccuracy was for the purpose of mis- 
 leading. 
 
 This Act on the other hand provides that a want of 
 notice, that is, the fact that no notice at all has been 
 given, shall not, in thf? circumstances mentioned in 
 s.s. 5, bar the action. 
 
CT. 
 
 day 
 ress 
 rour 
 
 and 
 9tate 
 11 of 
 
 THE workmen's COMPENSATION FOR INJURIES ACT- 
 
 lOI 
 
 Y. 
 
 d(6). 
 
 same 
 English 
 
 e Eng- 
 es that 
 
 invali- 
 shall be 
 
 in his 
 hat the 
 of mis- 
 
 want of 
 as been 
 oned in 
 
 (c) Sub-Section 6. There is no corresponding Section i.v 
 
 ^ ' s.s. 6. 
 
 section to this in the English Act. 
 
 The form of notice given by this sub-section appears Signature oi 
 
 *• / . , notice. 
 
 to contemplate that the notice shall be signed by, or 
 
 on behalf of, the person claiming compensation ; but 
 
 in Mason v. Bertram, i8 Ont. i, Proudfoot, J., held that 
 
 a signature was not essential. 
 
 In stating the cause of injury it is not intended 
 that the notice should be framed with the same tech- 
 nical accuracy as a pleading. 
 
 The notice must be in writing : Moyle v. Jenkins, Notice of 
 8 Q.B.D. 1 16 : and the writing should contain all the quisites of. 
 particulars required by this section, viz. : — 
 
 (i) The name of the person injured. 
 
 (2) His address. 
 
 (3) A statement in ordinary language of the cause 
 of injury ; and, 
 
 (4) The date the injury was sustained. 
 
 Where a workman made a verbal statement to his Verbal no- 
 employer's inspector, who took it down in writing 
 and sent it to the employer's superintendent, and a 
 letter was subsequently sent to the employer giving 
 the workman's name and address, and asking for 
 compensation for injuries, "particulars of which 
 have already been communicated to your superinten- 
 dent," it was held that the notice was insufficient : 
 Keen v. Milivall Dock Co., 8 Q.B.D, 482 ; 46 L.T. 
 N. S. 472 : but under the wider powers given the Court 
 
«ip 
 
 1 02 
 
 THE workmen's COMPENSATION FOR INJURIES ACT, 
 
 "H. 
 
 !»« •■: 
 
 h 
 
 Section 13. jn regard to the notice by s. 13, s.s. 5 of this Act, it is 
 J probable that such a notice would be held sufficient 
 
 Verbal notice under this Act ; or, at all events, under such circum- 
 stances, it might be held to be a reasonable excuse 
 for not giving a notice. A letter from a solicitor stat- 
 ing "We have been consulted by Mr. J. Cox con- 
 cerning injuries sustained by him while in your 
 employ, by which he lost his left hand. We have 
 received instructions to commence an action against 
 you for damages unless the matter is satisfactorily 
 settled without delay," was held to be a sufficient 
 notice : Cox v. Hamilton Sewer Pipe Co.^ 14 Ont., 
 300 ; Sione v. Hyde^ 9 Q. B. D. , 76. 
 
 Time for Time for sending notice. By s. 9, ante^ the 
 
 ^fY^I^""^'" notice must be served within twelve weeks from the 
 occurrence of the accident. A notice sent to the 
 defendant's secretary, who forwarded it to them 
 within the time limited for giving notice, was held 
 sufficient : McGovan v. Tancred, 13 Sc. Sess. Cas. 
 4th series, 1033. A notice proved to have been 
 posted on the 19th, in the absence of any evidence 
 to the contrary, was held to have been received on 
 the2oth : Previdi v. Gatti, 58 L.T.N. S. 762. It is 
 immaterial that the notice is wrongly addressed if it 
 in fact reaches the right party : Hearn v. Phillips^ 
 I T.L.R.,475. 
 
 (d) Address. The omission of the plaintiffs address 
 and date of the injury, were held to be immaterial, if 
 it could be shown that the defendants were not 
 injured thereby : Beckett v. Manchester Corporation^ 
 52 J. P. 346; Carter v. Drysdale, 12 Q.B.D. 91 ; 
 Previdi v. Gatti, supra. 
 
 Address of 
 plaintiff, 
 omission of. 
 
CI. 
 
 THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 103 
 
 , it IS 
 cient 
 cum- 
 ccuse 
 
 stat- 
 
 con- 
 
 your 
 
 have 
 fainst 
 torily 
 Scient 
 Out., 
 
 , the 
 m the 
 to the 
 them 
 s held 
 ». Cas. 
 ; been 
 ridence 
 ved on 
 It is 
 id if it 
 *ht'lltps, 
 
 address 
 erial, if 
 ;re not 
 toration, 
 D. 91 ; 
 
 (<•) '' Injutywas caused by,'' etc. A notice which Section 13. 
 stated the injury to have occurred through the defen- statement of 
 dants' negligence in leaving a hoist unprotected, was nature of 
 held to be sufficient, though the jury found that the 
 accident was due to a superintendent's negligence in 
 permitting the defendant to go into the hoist alone. 
 Clarkson v. Mnsgravc, 9 Q.B.D. 386. 
 
 14i. If the defendant in any action against Section 14. 
 an employer for compensation for an injury Defence of 
 sustained by a workman in tiie course of his notice, 
 employment intends to rely for a defence on 
 the want of notice {a) or the insufficiency of 
 notice, or on the ground that he was not the 
 employer of the workman injured, he shall, 
 not less than seven days before the hearing 
 of the action, or such other time as may be 
 fixed by the rules regulating the practice of 
 the Court in which the action is brought, 
 give notice to the plaintiff of his intention to 
 rely on that defence, and the Court may, in 
 its discretion, and upon such terms and con- 
 ditions as may be just in that behalf, order 
 and allow an adjournment of the case for 
 the purpose of enabling such notice to be 
 given ; and, subject to any such terms and 
 conditions, any notice given pursuant to and 
 in compliance with the order in that behalf. 
 
i(>4 
 
 THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 ^ 
 
 
 I 
 
 ^1 
 
 '"I 
 
 Section^r4. shall, as to any such action and for all pur- 
 Defence of poses thereof, be held to be a notice eiven 
 
 want of - . . , . 
 
 notice. pursuant to and in conformity with sections 
 9 and 13 of this Act. 52 V., c. 23, s. 13. 
 
 There is no provision of this kind to be found in 
 the English Act. 
 
 This section seems to have been suggested by a 
 draft bill presented to the English Hou^e of Commons 
 in 1890: see Minton-Senhouse p.p. 86-7 
 
 (a) *'Want 0/ notice'' In actions brought in the 
 County Court, or High Court, the defence would 
 have to be stated in the statement of defence in 
 the ordinary way, and no further notice under this 
 section would be requisite. But in actions brought in 
 the Division Court, where no pleadings are delivered 
 by the defendant, there, the notice as required by this 
 section must be served. 
 
 It would seem to be intended that where the 
 defenceof wantof notice, or of insufficiency of notice, is 
 raised by the defendant, it shall not be necessary, in 
 cases in the County Court, or High Court of Justice, 
 to proceed to trial in order to obtain the order of the 
 Court mentioned in this section, but that it would be 
 open to the plaintiff, if he should think the defence to 
 be well founded and likely to succeed, to apply at 
 once to the Court for an adjournment of the case, in 
 order to allow a proper notice in point of form to be 
 given, and where such notice could be given within 
 twelve weeks after the occurrence of the accident, it 
 
THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 lo: 
 
 ur- 
 ren 
 )ns 
 
 13- 
 1 in 
 
 )y a 
 
 ions 
 
 the 
 ould 
 :e in 
 
 this 
 [htin 
 ^ered 
 r this 
 
 the 
 ice, is 
 ■y, in 
 stice, 
 )f the 
 lid be 
 ice to 
 ply at 
 ise, in 
 to be 
 within 
 lent, it 
 
 would still be a good notice under s. 9, though givenSection 14. 
 after action commenced. But a case might arise Defence of 
 
 where, at the time of the application to give the want of 
 
 . . . , , notice 
 
 notice, the twelve weeks had expired, and the ques- 
 tion would then arise whether the Court had any 
 power to allow a notice to be served after the lapse 
 of the twelve weeks. It would seem probable that, 
 unless the case could be brought within s. 13, s.s. 5, 
 it might be held that the Court would not have the 
 power, or if it had, it would not exercise it. 
 
 Sections 9, 13, and 14 are, to some extent, incon- 
 sistent provisions, and the Court may have some 
 difficulty in harmonizing them so as to give due effect 
 to each. By s. 9 it is declared that an action shall 
 not be maintainable unless notice is given within 
 twelve weeks from the occurrence of the accident. 
 
 Section 13, s.s. 5, provides that the nioant^ or insuffi- 
 ciency, of the notice is not to be a bar to the action, 
 if the Court is of the opinion that there was reason- 
 able excuse for the want, or insufficiency, of the 
 notice, and that the defendant has not been thereby 
 prejudiced in his defence. 
 
 Section 14 prorides that where the defence of want, 
 or insufficiency, of the notice is set up, the Court may 
 adjourn the case for the purpose of enabling a notice 
 to be given. But it says nothing about extending the 
 time limit imposed by s. 9 for giving the notice. 
 
 The concluding words of this section are, however 
 very general and provide that any notice given in pur- 
 suance of an order made under this section, is to be 
 held to be a notice given pursuant to and in conformity 
 with ss. 9 and 13. 
 
■B 
 
 io6 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 
 
 * t 
 
 Section 14. 
 
 Defence of 
 want of 
 notice. 
 
 Section 15. 
 
 Particulars 
 of demand. 
 
 It is, therefore, possible that it may be held that the 
 Court has the discretionary power, under this section, 
 to allow a case to stand for the purpose of enabling 
 the plaintiff to give a notice notwithstanding the 
 twelve weeks referred to in s. 9 have expired ; but 
 the Court may regard s. 13, s.s. 5, as indicating the 
 criteria by which they are to guide their discretion 
 as to whether or not the indulgence should be granted. 
 
 This section must be read in connection with s. 18, 
 pos^, which in effect, provides that where the lastday for 
 doing an act falls on a Sunday it is to be deemed to 
 be done in time if done on the following Monday, and 
 where that day is a holiday it would appear that the 
 time would be still further extended to the next juri- 
 dical day : see The Interpretation Act (R.S.O. c. i.) 
 s. 8, s.s. 17. 
 
 15. In an action brought under this Act 
 the particulars of demand or statement of 
 claim shall state in ordinary language the 
 cause of the injury and the date at which it 
 was sustained, and the amount of compen- 
 sation claimed ; and where the action is 
 brought by more than one plaintiff, the 
 amount of compensation claimed by each 
 plaintiff, and where the injury of which the 
 plaintiff complains shall have arisen by 
 reason of the negligence, act, or omission 
 of any person in the service of the defend- 
 ant, the particulars shall give the name and 
 
:t. 
 
 the 
 
 ion, 
 
 ling 
 
 the 
 
 but 
 
 the 
 
 ition 
 
 ited. 
 
 . i8, 
 
 lyfor 
 
 id to 
 
 , and 
 
 t the 
 
 juri- 
 
 c. I.) 
 
 Act 
 It of 
 
 the 
 chit 
 ipen- 
 )n is 
 , the 
 each 
 [i the 
 n by 
 ssion 
 ;fend- 
 e and 
 
 Particulars ol' 
 demand. 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. I07 
 
 description of such person. R.S.O., 1887, section^is. 
 c. 141, s. 1 1. 
 
 Thissectionembodies the provisions of Ord. XLIV., 
 r. 3, of the English County Court Rules : see 
 Minton-Senhouse, p. 86. 
 
 It is intended to apply not only to actions in the 
 Division Court, but also to actions in the County 
 Courts, and High Court, in which the statement of 
 claim must conform to the requirements of this section. 
 
 Where a jury awards a larger amount for damages 
 than the plaintiflf has claimed, the Judge at the trial 
 may allow an amendment of the statement of claim 
 so as to increase the amount claimed to the amount 
 of the verdict : VVyatt v. Rosherville Gardens Co. , 
 2T.L.R, 282. 
 
 16. (0 Upon the trial {a) of an action section 16. 
 for recovery of compensation under this Act Appointment 
 
 • (\f Assessors* 
 
 before a Judge without a jury, one or more 
 assessors may be appointed by the Court or 
 Judge for the purpose of ascertaining the 
 amount of compensation, and the remuner- 
 ation (if any) to be paid to such assessors 
 shall be fixed and determined by the Judge 
 at the trial. 
 
 (2) Any person who shall, as hereinafter 
 provided, be appointed to act as an assessor 
 in such action, shall be qualified so to act. 
 
m^lip 
 
 io8 
 
 THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 (3) In such action a party who desires 
 
 
 Section 16. 
 9.SS. 35. 
 
 . -77 assessors to be appointed shall, ten clear 
 
 Appointment ^^ ' 
 
 of assessors days (6) at least before the day for holding 
 the Court at which the action is to be tried, 
 file an application stating the number of 
 assessors he proposes to be appointed, and 
 the names, addresses and occupations of the 
 persons who may have expressed their will- 
 ingness in writing to act as assessors. If 
 the applicant has obtained the consent of 
 the other party to the persons named being 
 appointed, he shall file such consent with 
 his application. 
 
 (4) Where the application for the appoint- 
 ment of assessors has been made by one 
 party to an action only, he shall, eight clear 
 days (6) at least before the day for holding 
 the Court at which the action is to be tried, 
 serve a copy of the application so filed upon 
 the other party, who may then either file an 
 application for assessors, or file objections 
 to one or more of the persons proposed. 
 
 (5) An application for the appointment 
 of assessors may be in the form following, 
 or to the like effect, namely :— 
 
THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 109 
 
 In the {describing the Court) Section 16. 
 
 " The Workmen's Compensation for*"" •^" _ 
 
 I nj uries Act 1 892. ' ' o^asseSr"' 
 
 Between, Plaintiff, 
 
 Defendant 
 
 The plaintiff {or defendant) applies to 
 have an assessor {or assessors) appointed to 
 assist the Court in ascertaining the amount 
 of compensation to be awarded to the 
 plaintiff, should the judgment be in his 
 favour, and he submits the names of the 
 following persons, who have expressed .heir 
 willingness in writing to act as assessors 
 should they be appointed. 
 
 {Here set out the names, addresses and 
 occupations of the persons above referred to.) 
 
 {If the other party consents to the appoint- 
 ment add the folloiving ; 
 
 The defendant {or plaintiff) consents to 
 the appointment of any of the persons 
 above named to act as assessors in this 
 action, as appears by his consent thereto 
 filed herewith. 
 
 Dated this day of 
 
 A.B. 
 
 The above named plaintiff, {or as the 
 
 case may be.) 
 
I lO 
 
 THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 Section i6, 
 
 Jt 
 
 \ 
 
 
 (6) Where separate applications are filed 
 by the parties, no objection to the persons 
 
 o/''a8ie'sTor?P'"^P°^^'^ ^^^^^ ^^ made by either party, but 
 the Court or Judg-e may appoint from the 
 persons named in each application one or 
 more assessor or assessors, provided that 
 the same number of assessors be appointed 
 from the names given in such applications 
 respectively. 
 
 (7) In such action brought in a Division 
 Court the applications for the appointment 
 of assessors, together with any objections 
 made to the persons proposed, shall be 
 forwarded by the clerk of the Court to the 
 Judge. 
 
 (8) Where application for the appointment 
 of assessors is granted, the Court or Judge 
 shall appoint such of the persons proposed 
 for assessors as by the Court or Judge may 
 be deemed fit, subject to the provisions con- 
 tained in this Act. 
 
 (9) In such action where an application 
 for the appointment of assessors has been 
 filed, the Court or Judge may, at any time 
 prior to the trial thereof, nominate one or 
 more additional persons to act as assessors 
 
 'i' ! 
 
;t. 
 
 THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 Ill 
 
 [led 
 
 ons 
 
 but 
 
 the 
 
 ; or 
 
 that 
 
 nted 
 
 ions 
 
 sion 
 nent 
 tions 
 1 be 
 ) the 
 
 ment 
 iudge 
 posed 
 may 
 scon- 
 cation 
 ; been 
 J time 
 3ne or 
 sessors 
 
 in the action. Where no application for s^'^''"" '6- 
 
 • ' -t. SS. lOI I. 
 
 assessors has been made, the Court or Judge — 
 
 Appointment 
 
 may appoint one or more persons to act as oi assessors, 
 assessor or assessors in the action before or 
 on the trial of the action. 
 
 ( lo) If at the time and place appointed for 
 the trial all or any of the assessors appointed 
 shall not attend, the Court or Judge may 
 either proceed to try the action with the 
 assistance of such of the assessors, if any, 
 as shall attend, or may adjourn the trial 
 generally, or upon any terms which the 
 Court or Judge may think fit, or may 
 appoint any person who may be available 
 and who is willing to act, and who is not 
 objected to, or who, if objected to is objected 
 to on insufficient ground, or the Court or 
 Judge may try the action without assessors. 
 
 (ii) Every person requiring the Court 
 or Judge to be assisted by assessors shall at 
 the time of filing his application deposit 
 therewith the sum of $4 for every assessor 
 proposed, and such payments shall be 
 considered as costs in the action, unless 
 otherwise ordered by the Court or Judge : 
 
112 
 
 THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 .y^. 
 
 h \ 
 
 1^ ^ 
 
 SSI 
 
 •>►•• 
 
 Ik' 
 
 Section lo. Provided, that where a person proposed as 
 
 s. ss. 12-13- ' ... 
 
 14- an assessor shall have in writing agreed and 
 
 Appointment consented that he will not require his re- 
 
 of assessors. >_• ^ i_ j -^ j j 'a. 
 
 muneration to be so deposited, no deposit 
 in respect of such person shall be required. 
 
 (12) Where an action shall be tried by 
 the Court or Judge with the assistance of 
 assessors in addition to or independently of 
 any assessors proposed by the parties, the 
 remuneration of such assessors shall be 
 borne by the parties, or either of them, as 
 the Judge or Court shall direct. 
 
 (13) If after an assessor has been ap- 
 pointed the action shall not be tried, the 
 Court or Judge shall have power to 
 make an allowance to him in respect of any 
 expense or trouble which he may have in- 
 curred by reason of his appointment, and 
 direct the payment to be made out of any 
 sum deposited for his remuneration. 
 
 (14) The assessors (r) shall sit with and 
 assist the Court or Judge when required 
 with their opinion and special knowledge 
 for the purpose of ascertaining the amount 
 
ACT. 
 
 ed as 
 i and 
 is re- 
 jposit 
 uired. 
 
 ed by 
 nee of 
 ntly of 
 ;s, the 
 all be 
 em, as 
 
 ;en ap- 
 ed, the 
 wer to 
 t of any 
 lave in- 
 !nt, and 
 t of any 
 
 • 
 
 with and 
 
 required 
 
 lowledge 
 
 5 amount 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. n 
 
 of compensation, if any, which the plaintiif Section i6 
 shall be entitled to recover. ^ 
 
 c. 141, s. 12, 
 
 R. S.O. 1887, Appointment 
 of assessors. 
 
 
 There is no corresponding section in the English 
 Act ; but the various provisions of this section are 
 adapted from the English County Court Rules : Ord. 
 XLIV. rr. 5, 6, 8, 9, 10, 11, 12, 14, 15, 16 and 17, 
 with certain trifling additions and modifications : see 
 Minton-Senhouse, pp. 87-9. 
 
 (a) '• Upon the trial" Assessors can only be 
 appointed when the action is to be tried without a 
 jury : s.s. i. Although s.s. i uses the words ''upon 
 the trial;' yet it seems clear from the rest of the 
 section that the proceedings for the appointment 
 of assessors are to be had before, and not at the time 
 of the trial. 
 
 (b) Sub-Sections, 3-4. The days limited by these 
 sub-sections are clear days, i.e., exclusive both of the 
 day on which the application is filed or served re- 
 spectively and the day appointed for the trial : see 
 Con. Rule 474, and Holmested & Langton, p. 476. 
 No time is limited by s.s. 4 for the opposite party to 
 file his application for assessor, or his objections to 
 those proposed by the other side. The application or 
 objection, as the case may be, would seem to be in 
 time if filed at any time before the first applica- 
 tion lor assessors is disposed of by the Judge. 
 
114 
 
 THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 Section i6. It is not dear from this section how the Judge Is to 
 
 Appointment Proceed to make I. ^ appointment, whether in the 
 of assessors, presence of the parties or on notice to them, or 
 whether he is to make the appointment without 
 further notice to either party, and solely upon consider- 
 ation of the application, and objections, if any. 
 
 ^^* 
 
 
 h Ik,' 
 
 I 
 
 Duty of 
 
 assessors. 
 
 (c) " The assessors/' The duties of the assessors 
 are confined to ascertaining the amount of the 
 compensation, in case the Judge finds that the 
 plaintiff is entitled to recover anything. They have 
 no power to decide, nor can the Judge delegate to 
 them, the question, whether the plaintiff is entitled to 
 recover or not ; the Judge himself must determine 
 that, and decide all questions of law. 
 
 The assessors' duties are merely to assist the Court, 
 when required, with their special knowledge for the 
 purpose of fixing the amount, if any, to be allowed 
 for compensation. As to the relative duties of a 
 Judge and assessors : see Wright v. Collier, 19 Ont. 
 App. 298. 
 
 Section 17. 
 
 Consolida- 
 tion of 
 actions. 
 
 IT, (i) Where several actions shall be 
 brought under this Act against a defendant 
 in the same Court in respect of the same 
 negligence, act or omission, the defendant 
 shall be at liberty to apply to the Judge that 
 the said actions shall be consolidated. («) 
 
THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 15 
 
 lCT. 
 
 ; is to 
 
 1 the 
 n, or 
 thout 
 sider- 
 
 essors 
 )f the 
 it the 
 y have 
 rate to 
 itled to 
 termine 
 
 e Court, 
 
 ; for the 
 
 allowed 
 
 les of a 
 , igOnt. 
 
 hall be 
 ;fendant 
 le same 
 ^fendant 
 dge that 
 ;d. {a) 
 
 Consolida- 
 tion of 
 actions. 
 
 (2) Application, for consolidation of ac- ^*'=''°" '7- 
 
 . ' s. ss. 2-3-4-5 
 
 tions shall be made upon notice to the 
 plaintiffs affected by such consolidation. 
 
 (3) In case several actions shall be brought 
 under this Act against a defendant in the 
 same Court in respect of the same negli- 
 gence, act or omission, the defendant may, 
 on filing an undertaking to be bound so far 
 as his liability for such negligence, act or 
 omission is concerned by the decision in 
 such one of the said actions as may be 
 selected by the Court or Judge, apply to the 
 Court or Judge for an order to stay the pro- 
 ceedings in the actions other than in the one 
 so selected, until judgment is given in such 
 selected action. 
 
 (4) Applications for stay of proceedings 
 shall be made upon notice to the plaintiffs 
 affected by stay of proceedings or ex parte. 
 
 (5) Upon the hearing of an application 
 for consolidation of actions or for stay of 
 proceedings, the Court or Judge shall have 
 power to impose such terms and conditions 
 and make such order in the matter as may 
 be just. 
 
F^PW 
 
 ii6 
 
 Section 17. 
 s. ss. 6-7-8. 
 
 Consolida- 
 tion of 
 actions. 
 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 (6) If an order shall be made by a Court 
 or Judge upon an ex parte application to 
 stay proceedings, it shall be competent to 
 the plaintifiFs affected by the order to apply 
 to the Court or Judge (as the case may be) 
 upon notice or ex parte ^ to vary or discharge 
 the order so made, and upon such last men- 
 tioned application such order shall be made 
 as the Court or Judge shall think fit, and 
 the Court or Judge shall have power to dis- 
 pose of the costs occasioned by such order 
 as may be deemed right. 
 
 (7) In case a verdict in the selected action 
 shall be given against the defendant, the 
 plaintiffs in the actions stayed shall be at 
 liberty to proceed for the purpose of ascer- 
 taining and recovering their damages and 
 costs. 
 
 (8) A defendant may by notice to the 
 opposite party to be given or served at least 
 six days before the day appointed for the 
 trial of the action, admit the truth of any 
 statement of his liability for any alleged 
 negligence, act or omission as set forth or 
 contained in the plaintiff's statement or 
 
CT. 
 
 THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 117 
 
 )urt 
 I to 
 t to 
 3ply 
 
 be) 
 irge 
 nen- 
 fiade 
 
 and 
 I dis- 
 jrder 
 
 ction 
 , the 
 be at 
 iscer- 
 5 and 
 
 the 
 t least 
 or the 
 )f any 
 lleged 
 >rth or 
 nt or 
 
 particulars of claim in the action, and after ^^'^''°" '7- 
 
 ' s.s, 9. 
 
 such notice given the plaintiff shall not be —^ 
 allowed any expense thereafter incurred fortionof 
 the purpose of proving the matters so "^ '""''* 
 admitted, (d) 
 
 (9) Where two or more persons are 
 joined as plaintiffs under sub-section i of 
 this section, and the negligence, act or 
 omission which is the cause of action shall 
 be proved, the judgment shall be for all the 
 plaintiffs, but the amount of compensation, 
 if any, that each plaintiff is entitled to shall 
 be separately found and set forth in the 
 judgment, and the amount of costs awarded 
 in the action shall be ordered to be paid to 
 such person, and in such manner as the 
 Court or Judge may think fit ; should the 
 defendant fail to pay the several amounts of 
 compensation and the costs awarded in the 
 action, execution may issue as in an ordinary 
 action, and should the proceeds of the 
 execution be insufficient, after deducting all 
 costs, to pay the whole of the amounts 
 awarded, a dividend shall be paid to each 
 plaintiff, calculated upon the proportion of 
 
ii8 
 
 THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 Section 17. 
 s. ss. 1-8. 
 
 Consolida- 
 tion of 
 actions. 
 
 the amount which shall have been awarded 
 to the respective plaintiffs to the total 
 amount realized after the deduction of all 
 the costs of the action as aforesaid. R.S.O. 
 1887, c. 141, s . 13. (c) 
 
 There is no corresponding section in the English 
 Act. 
 
 Although the marginal note to this section is 
 ** Consolidation of actions," yet other subjects are 
 dealt with by the concluding sub-sections (8, 9), the 
 provisions of which apply to all cases, irrespective of 
 any question of the consolidation of actions. 
 
 {a) Sub-Section i. Instead of bring. ng separate 
 actions, where several persons are injured by the 
 same negligence, act, or omission, *hey may, in the 
 High Court, and County Court, be joined as plaintiffs 
 in one action : Con. Rule 300, and see Holmested & 
 Langton, pp. 317, 318. 
 
 {b) Sub-Section 8. Where a confession of liability 
 for the alleged negligence, act, or omission is served, 
 it should be so worded as not to admit of any reason- 
 able doubt that the defendant admits his liability 
 without any qualification. 
 
 Where several acts or omissions are charged, and 
 the defendant admits some and denies others, it 
 would seem to be open to him to file a confession 
 confined to those which he admits, and thus avoid 
 the expense of proving them. 
 
THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 119 
 
 The form of such a confession might be as follows : Section 17. 
 
 s.s. 9. 
 
 {Sfyle of Courts and Cause.) Form of 
 
 The defendant admits his liability for the negligence, confession 
 act, or omission, as set forth in the (or in the first, fifth, "* liability, 
 and ninth paragraphs, or as the case may be, of the) 
 plaintiffs statement or particulars of claim in this 
 action. Dated, etc. 
 
 (Signed), Defendant's Solicitor. 
 
 The six days limited by this sub-section are " clear 
 days," and, therefore, exclusive of the day of service 
 and the day appointed for the trial : see Holmested 
 & Langton, p. 476, 
 
 (c) Sub-Section 9. "For all the plaintiffs," etc. This porm of 
 
 assumes that all who sue are found entitled to recover, judgment 
 
 where sev- 
 and these words must be understood to mean " for eral plaintiffs 
 
 all the plaintiffs entitled to recover." If for anyjo'"- 
 
 reason any of the plaintiffs is found not entitled to 
 
 recover, the action must be dismissed as against such 
 
 plaintiff, irrespective of this sub-section. 
 
 The effect of this sub-section is to make the 
 judgment in favor of several successful plaintiffs, a 
 several judgment for each for the amount respec- 
 tively awarded to each ; but an execution may issue 
 for the aggregate amount of all the sums recovered, 
 and in levying execution thereon, any amount 
 recovered is to be divisible rateably between the 
 plaintiffs in proportion to the amount payable to each 
 under the judgment, after deducting all costs, which 
 are to be first paid in full. 
 
I20 
 
 THE WORKMEN S COMPENSATION FOR INJURIES ACT. 
 
 Section 18. 
 
 Computa- 
 tion of time. 
 
 M^ 
 
 18. Where the time for doing any act, 
 taking any proceeding, or giving any notice 
 under or required by this Act expires on a 
 Sunday such act, or proceeding, or notice 
 shall, so far as regards the time of doing, 
 taking or giving the same, be held to be 
 duly and sufficiently done, taken or given, 
 if done, taken or given, on the day next 
 following such Sunday. R. S. O. 1887, 
 c. 141, s. 14. 
 
 There is no similar section in the English Act. 
 
 The only sections of the Act which limit the time 
 for doing acts or taking proceedings are s. 9, 
 which limits the time for giving a notice of the injury 
 to the employer, and also the time for commencing 
 an action ; and s. 14, which limits the time for serv- 
 ing a notice of the intention of the defendant to rely 
 on the defence of the want, or insufficiency, of notice, 
 or that he was not the eniployer of the plaintiff ; s. 16, 
 s.s. 3, which limits the time for filing an application 
 for the appointment of assessors ; ahd s. 17, s.s. 8, 
 which limits the time for defendant's serving a con- 
 fession of liability. 
 
 By The Interpretation Acf (H.S.O., c. i, s. 8, s.s. 
 17) " If the time limittu by an Act for any proceed- 
 ing, or for the doing of anything under its provisions, 
 expires or falls upon a holiday (see /&., s.s. 16), the 
 time so limited shall extend to, and such thing may 
 
THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 131 
 
 be done on the day next following which is not a Section i8. 
 holiday, " Where, therefore, the Monday to which by 
 s. i8 the time for doing an act or taking a proceeding 
 under this statute is extended, is a holiday as defined 
 by R.S.O., c. I, s. 8, s.s. i6, the time may be still 
 further extended to the next day thereafter not being 
 a holiday. 
 
 19, In an action brought in any Court to^*^^'^'"" "^- 
 recover compensation under this Act, the i;"''"^*' •'"'• 
 
 r Rules. 
 
 forms and methods, and the rules and orders 
 in force in Court shall, subject to and save 
 as otherwise provided by the terms and pro- 
 visions of this Act, apply to and regulate 
 all matters of pleading, practice and pro- 
 cedure in such action, and notwithstanding 
 anything in this Act contained, the forms 
 and method, and the pleadings, practice and 
 procedure in any such action shall conform 
 to and be regulated by any rules or orders 
 in that behalf hereafter lawfully and duly 
 made or prescribed with respect to actions 
 brought in any such Court. R. S. O. 1887, 
 c. 141, s. 15. 
 
 There is no corresponding section in the English 
 Act. 
 
 The effect of this section appears to be to make the 
 express provisions of this Act govern the practice and 
 
laa 
 
 THE workmen's COMPENSATION FOR INJURIES ACT. 
 
 Section 19. procedure, wheresoever they diflFer from the ordinary 
 rules of practice and procedure of the Court in which 
 the action may be brought ; but that the practice and 
 procedure laid down by this Act may be modified by 
 rules or orders of Court hereafter made with respect 
 to actions. 
 
 Section 20. 
 
 
 
 Saving 
 clause. 
 
 20. All Acts and parts of Acts incon- 
 sistent with this Act are hereby repealed : 
 but such repeal shall not affect, nor shall 
 any provision of this Act prejudice, anything 
 heretofore done or suffered, or any right 
 heretofore acquired or accrued under or in 
 pursuance of said Acts or parts of Acts so 
 repealed ; and any proceeding in respect of 
 any such right, and any action, suit or pro- 
 ceeding under or in pursuance of said last 
 mentioned Acts or parts of Acts shall be 
 instituted, continued, and completed, and 
 determined, and dealt with in all respects 
 and for all purposes as if this Act had not 
 been passed. See R. S. O. c. 141, s. 16 ; 
 52 V. c. 23, s. 16. 
 
 There is no corresponding section in the English 
 Act. 
 
ACT. 
 
 rdinary 
 1 which 
 ice and 
 fied by 
 respect 
 
 incon- 
 ealed : 
 r shall 
 lything 
 r right 
 er or in 
 \cts so 
 ipect of 
 or pro- 
 aid last 
 ihall be 
 ed, and 
 respects 
 had not 
 [, s. i6 ; 
 
 le English 
 
 Revised Statute of Ontario 
 
 CHAPTER 135 
 
 (Commonly known as Lord Campbelts Act) 
 
 An Act Respecting Compensation to the 
 Families of Persons Killed by Acci- 
 dent, AND IN Duels. 
 
 HER MAJESTY, by and with the advice 
 and consent of the Legislative Assem- 
 bly of the Province of Ontario, enacts as 
 follows : — 
 
 1, Where the words following occur ininterpre- 
 this Act, they shall be construed in the*^^'""' 
 manner hereinafter mentioned, unless a 
 contrary intention appears : 
 
 (i) "Parent" [a) shall include father, " Parent, 
 mother, grandfather, grandmother, step- 
 father and stepmother ; ana 
 
.'^ 
 
 124 
 
 Section 1. 
 "Child. • 
 
 LORD Campbell's act, (r.s.o., c. 135). 
 
 (2) " Child "(<^)' 'Mnclude son, daugh- 
 ter, grandson, granv.v.aughter, stepson and 
 stepdaughter. R.S.O., 1877, c. 128, s. 1. 
 
 (a) " Pa fen/. " Parents of illegitimate children are 
 not within the Act : Gibson v. Midland A'). Co., 2 
 Ont. 658 ; and see Dickinson v. North Eastern Ry. Co., 
 2 H. & C. 735 ; Weir v. Coltness Iron Co., 16 Ret. 
 614. 
 
 {b) *^ Child." A child en ventre sa mere is a. child 
 within this section : The George & Richard, L. R. 3 
 A. & E. 466 : on the child being born its claim 
 may be assessed : S. C. 20 W. R. 245. A bastard is 
 not a child within the r ling of this Act : Dickinson 
 V. North Eastern Ry. ' nd Gibson v. Midland Ry. 
 
 Co. ; and JVeir v. Coltne^^ Iron Co. , supra. 
 
 It is said in Pollock on Torts (3rd Ed.) p. 61, note 
 (t), that this case is not of judicial authority on this 
 point : sedvidc Seven on Negligence, p. 192. 
 
 Section 2. 
 
 2, Where the death of a person {a) has 
 Action given been caused by such wrongful act, neglect 
 damage for or default, as would (if death had not en- 
 anypenson'' sued) have entitled the party injured {b) to 
 anrwronefui "^^'"^^•" ^" action and recover damages in 
 act, neglect, respect thereof, in such case the person who 
 
 or default. ^ ^ ^ ^ 
 
 would have been liable if death had not en- 
 sued, shall be liable to an action {c) for 
 
l.ORD CAMPBELL'S ACT, (r.S.O., C. 1 35). 135 
 
 damages, notwithstanding the death of the ^^•^t'"" »• 
 person injured, and although the death has 
 been caused under such circumstances as 
 amount in law to a felony {(il). R.S.O. 
 1877, c. 128, s. 2. 
 
 This section, although varying somewhat in its 
 phraseology, is to the same effect as the English Act 
 (9 & 10 Vict. c. 93), s. I. 
 
 (a) "The death of a person," etc. The ordinary No remedy 
 rule of the Common Law in regard to actions for *J^'_^^"'""">" 
 personal injuries is expressed in the maxim, Actio 
 personalis morituf- cum persona. This Act is a depar- 
 ture from that rule. Apart from this statute and 
 The Workmen's Compensation for Injuries Act, j8q2, no 
 civil action lies against a person who has by negli- 
 gence or otherwise caused the death of another : 
 Osborn v. Gil/ett, L.R. 8 Ex. 88. 
 
 {b) "As would {tf death had not ensued) have entitled A.ction, 
 the party injured, " etc. This section it will be observed J^inab™?'"" 
 only entitles the deceased person's representatives to 
 sue where the deceased himself could have sued, had 
 he survived ; but in the case of death by duelling, the 
 representatives may, under s. 4 post, sue, though the 
 deceased could not have done so. 
 
 (c) " Liable to an action" etc. An action under 
 thif- section of the statute can only be maintained 
 when the deceased himself could either at Common 
 Law, or under The JVorkmen's Compensation for 
 
 ij" 
 
126 
 
 LORD Campbell's act, (r.s.o., c. 135). 
 
 Section 2. 
 
 Action, 
 when main- 
 tainable. 
 
 t I 
 
 Injuries Act i8g2, have maintained an action in 
 respect of the same wrongful act : Haigh v. Royal 
 Mail Steam Packet Co., 52 L.J.Q. B. 640; Senior v. 
 Ward, I El. & El. 385 : and the defendant may 
 set -ip the same defences (the Statute of Limitations 
 excepted : Robinson v. Canadian Pacific Ry. Co. (1892) 
 A.C. 481 ; 67 L.T.N. S. 505) to an action under this 
 statute as would have been open to him, if the de- 
 ceased himself were the plaintiff ; e.g., contributory 
 negligence of the deceased : Tucker v. Chaplin, 2 C. 
 & K. 730 ; Dynen v. Leach, 26 L.J. Ex. 221 ; Waite 
 v. North Eastern Ry, El. Bl. & El. 728 ; 28 L.J. 
 Q.B. 258; Witherley v. The Regents Canal Co., 12 
 C.B.N.S. 2 ; and see per Falconbridge, J., Erdman 
 v. Walkerton, 22 Ont. at p. 704 : accord and satisfac- 
 tion made to the deceased in his lifetime : Read v. 
 The Great Eastern Ry. Co., L.R. 3 Q.B. 555; 37 
 L.J. Q.B 278; and see Griffiths v. Dudley, gQ.B.D. 
 357 ; 47 L.T.N. S. 10 ; but where the action is only 
 maintainable under The Workmen's Compensation for 
 Injuries Act, i8g2, any such contract or agreement 
 is subject to the provisions of s. 10 of that Act ; see 
 ante p. 93. With regard to the defence of the Statute 
 of Limitations, so far as actions under The Workmen's 
 Compensation for Injuries Act, i8g2, are concerned, it 
 will be seen that two different periods of prescription 
 are laid down by that Act, the one relating to actions 
 by the workman himself being six months from the 
 occurrence of the accident ; and the other relating to 
 actions by his representatives being twelve months 
 from the time of his death ; see s. 9, ante, p. 89 ; see 
 further as to this defence, post, s. 5 and notta. 
 
LORD Campbell's act, (r.s.o., c. 135). 
 
 127 
 
 ion in 
 Royal 
 nior V. 
 It may 
 itations 
 1.(1892) 
 ler this 
 the de- 
 ibutory 
 illy 2 C. 
 ; Watte 
 28 L.J. 
 Co., 12 
 Erdman 
 satisfac- 
 Read v. 
 
 555 ■» 37 
 Q.B.D. 
 
 is only 
 
 ition for 
 
 freement 
 
 Vet ; see 
 
 e Statute 
 
 Workmen's 
 
 ;erned, it 
 
 jscription 
 
 o actions 
 
 from the 
 
 ;lating to 
 
 e months 
 
 I. 89 ; see 
 
 The above mentioned cases proceed on the principle Section 2. 
 that the causes of action to which the deceased was whetii^ the 
 entitled, and that to which his representatives are right of 
 entitled under The Workmen's Compensation for^l°!^^f^^^ 
 Injuries Act, 1892, or this Act, are identical, although of his repre- 
 the measure of damages recoverable varies, according fjentSf? "* 
 to whether the action is brought by the deceased, or 
 his representatives. But there is some difference of 
 judicial opinion as to whether or not the causes of 
 action are identical : see Blake v. Midland Ry. Co., 
 18 Q.B. 93; Pym v. The Great Northern Ry. Co., 
 4B. & S. 396; 8 L.T.N.S. 734; and see White v. 
 Parker, 16 S.C.R. 699 ; and/>gr Strong, J., The Cana- 
 dian Pacific Ry. Co. v. Robinson, 19 S.C.R. 302-3. 
 In White v. Parker, supra, it was held that an action 
 commenced by a person for damages arising from the 
 negligence of the defendant's servant, based on the 
 defendant's Common Law liability, could not upon 
 the pla-ntifFs death pendente lite, be revived and 
 continued by his personal representatives under the 
 New Erunswick version of Lord Campbell's Act. 
 How far that decision would be applicable to actions 
 brought under The Workmen's Compensation fijr /?/- 
 juries Act, 1892, is doubtful, because the same section 
 (see s. 3 ante p. 26) which enables the workman to sue, 
 also enables his representatives to sue in case of his 
 death. Some doubt seems also to be cast upon the 
 accuracy of that decision by a recent case in the House 
 of Lords, where it was held, in appeal from a Scotch 
 Court, that where a deceased workman had com- 
 menced an action under The Employers' Liability Act 
 
128 
 
 LORD Campbell's act, (r.s.o., c. 135). 
 
 Section 2. 
 
 Death of 
 deceased 
 pendente 
 lite. 
 
 and had died pendente lite, that a new action could 
 not be maintained by his representatives in respect 
 of the same matter : Wood v. Gray, (1892) A.C. 576 ; 
 67 L.T.N. S. 628. In that case, it is true, the second 
 action was not brought under Lord Campbell's Act, 
 which, it appears does not extend to Scotland, but 
 by virtue of the Common Law of Scotland, which 
 gives to the husband, father, wife, mother, or child 
 of a deceased person a similar right of action against 
 the person causing his death as in England is given 
 by Lord Campbell's Act, and the principle, therefore, on 
 which the Scotch decision proceeds, seems equally 
 applicable for the determination of rights arising 
 under this Act. That principle is thus stated: "A 
 single act, amounting to either a delict, or breach of 
 contract, cannot be made the ground for two or more 
 actions for the purpose of recovering damages arising 
 within different periods, but caused by the same act" : 
 Stevenson v. Pontifex, 15 Ret. per Inglis, L, P. , at 
 p. 129. 
 
 Second ac- On the whole, the weight of authority appears to 
 maintainable ^^ rather in favor of the view that the cause of action 
 to which a deceased person was entitled, and to which 
 his representatives are, by virtue of this Act, or TJie 
 JVorkmen's Compensation for Injuries Act, i8g2, 
 entitled, are the same, and that the only difference is 
 in the measure of damages : and whereas the deceased 
 may recover compensation for personal suffering and 
 damage to his property ; when the action is brought, 
 or continued by his representatives, then, only the loss 
 
LORD Campbell's act, (r.s.o., c. 135). 
 
 129 
 
 I could 
 respect 
 
 :. 576 ; 
 
 second 
 I's Act, 
 md, but 
 I, which 
 or child 
 
 against 
 is given 
 efore, on 
 ; equally 
 J arising 
 :ed : " A 
 (reach of 
 3 or more 
 s^i arising 
 inic »i»-i • 
 
 LP., at 
 
 ippears to 
 J of action 
 d to which 
 ct, or The 
 let, 1892, 
 flference is 
 le deceased 
 ffering and 
 is brought, 
 nly the loss 
 
 which the parties beneficially entitled to the damages 
 under this Act may be proved to have sustained by 
 the death of the deceased person, can be recovered. 
 As Lord Blac'.i'ourn, speaking of the corresponding 
 section of the English Act, said : "This section may 
 provide a new principle as to the assessment of 
 damages, but it does not give any new right of 
 action " : Read v. Great Eastern Ry. , L. R. 3 Q. B. 
 555; 18 L.T.N. S. 822: (see, however, the observa- 
 tions of the same learned Judge in Seward v. The 
 Vera Cruz, 10 App. Cas. at p. 70) : and see per 
 Taschereau, J., The Canadian Pacific Ry. Co. v. 
 Robinson, 19 S.C.R. at p. 322 ; and per Buskirk, J., 
 The Indianapolis 6^ St. Louis Ry. Co. v. Stout, 53 Ind. 
 at p. 158. On the other hana, in the recent case of 
 Zimmer v. Grand Trunk Ry., 19 Ont. App. at p. 
 698, Hagarty, C.J.O., speaking of this Act, says : 
 " It creates a wholly new remedy by action," but a 
 new remedy does not necessarily mean a " new cause 
 of action " : see further on this point s. 5 and notes, 
 post, p. 141 et seq. 
 
 ' ' The Workmen ' sCompensationfor Injuries Act, i8g2, " 
 as we have seen, extends the benefit of that Act, 
 in case of the workman's death, to his representatives, 
 who are entitled to maintain an action under this Act : 
 see ante, pp. 26, 57. Thus, while under this Act the 
 representatives of adeceased workman would only have 
 a right of action against his employer where the death 
 had been caused by the personal negligence of the 
 employer, by the combined operation of the two Acts 
 
 Section :. 
 
 Right of ac- 
 tion of 
 deceased 
 identical with 
 that of his 
 representa- 
 tives, but 
 measure of 
 damages 
 different. 
 
I30 
 
 LORD CAMPBELL'S ACT, (r.S.O., C. I35). 
 
 Section 2. they have now also a right of action when the deceased 
 
 Remedies workman's death has been occasioned by any cause 
 
 under W.C.I, for which the employer is now made liable to a 
 
 Act are not workman by virtue of The Workmen's Compensation 
 
 cumulative, for Injuries Act, i8g2. The remedies under the two 
 
 Acts, however, would appear not to be cumulative, 
 
 so as to confer a separate right of action under 
 
 each Act ; and the better opinion would seem to be 
 
 that where the workman commences an action in his 
 
 lifetime, even though he die before it can be brought 
 
 to a trial, no new action can then be brought by his 
 
 representatives, but they must make themselves 
 
 parties to the action thus begun by the deceased : 
 
 IVoodv. Gray, (1892) A.C. 576; 07 L.T.N. S. 628; 
 
 and see The Workmen's Compensation for Injuries Act, 
 
 s. 3, ante, p. 26. It must be conceded, however, that 
 
 this view of the law seems rather to conflict with 
 
 White V. Parker, 16 S.C.R. 699; and see The 
 
 Indianapolis & St. Louis Ry., Co. v. Stout, 53 Ind. 143. 
 
 Action must 
 be founded 
 on a wrong- 
 ful act. 
 
 The foundation of the action is that the death of 
 the deceased was caused by the wrongful act of the 
 defendant, or someone for whom the defendant is re- 
 sponsible. Where, therefore, there is no evidence as to 
 how the deceased person was killed, the action cannot 
 be maintained : Badgerow v. The Grand Trunk Ry. Co. 
 19 Ont. 191 ; Giles V. Great Western Ry. 36 U.C.Q. B. 
 360. Where the evidence is as consistent with the 
 absence as with the existence of negligence, the case 
 should not be left to the jury : fackson v. Hyde, 28 
 U.C.Q.B. 294 ; see also Deverill v. The Grand Trunk 
 
leceased 
 ly cause 
 lie to a 
 tensation 
 the two 
 nulative, 
 m under 
 ;m to be 
 ion in his 
 i brought 
 ht by his 
 lemselves 
 ieceased : 
 4.S. 628; 
 itiries Act, 
 'ever, that 
 iflict with 
 see The 
 3 Ind. 143- 
 
 le death of 
 act of the 
 idant is re- 
 idence as to 
 :tion cannot 
 ■imk Ry- Co. 
 6U.C.Q.B. 
 nt with the 
 ce, the case 
 V. Hyde, 28 
 ^rrand Trunk 
 
 LORD Campbell's act, (r.s.c, c. 135). 131 
 
 Ry., 25 U.C.Q.B. 517; Storey v. Veach, 22 C. P. Section 2. 
 164 ; Blackmore v. Toronto St. Ry., 38 U.C.Q.B. 172 ; 
 Jones V. The Grand Trunk Ry., 45 U.C.Q.B. 193 : and 
 a railway company cannot be made liable for injuries 
 resulting from the explosionof a boiler of one of its loco- 
 motive engines caused by some latent defect of which 
 the company and its servants in charge had no notice, 
 and could not by reasonable diligence have discovered: 
 Louisville &" Nashville Ry. Co. v. Allen, 78 Al. 494. 
 
 An action will not lie against the Crown under this Action 
 Act : see Muskoka Mills Co. v. The Queen, 28 Gr. cfown. 
 563 ; Reg. V. Martin, 20 S.C. R. 240; 50 & 51 Vict., 
 c. 16, s. 16, (D) ; The Railway Act, (44 Vict. c. 25, 
 lD])s. 2. 
 
 {d) *^ Felony." This section extends to cases even ■Action lies, 
 where the death of the deceased was caused by a wrongful act 
 wrongful act amounting in law to a felony. Formerly, '^ ^ felony, 
 where the wrongful act was punishable as a felony, 
 the civil remedy was suspended until the offender had 
 been prosecuted criminally, and the action might be 
 stayed if prematurely brought : see Walsh v. Nat- 
 trass, 19 C.P. 453; Wells V. Abraham, F^. R, 7 Q.B. 
 554 ; Williams v. Robinson, 20 C.P. 255 : but by 77/e Whether 
 Criminal Code, 1892, s. 534, after 1st July, 1893, gl'^fi"/, ""'"^ 
 (see lb., s. 2) "No civil remedy for any act or prosecuted, 
 omission shall be suspended t)r affected by reason 
 that such act or omission amounts to a criminal 
 offence " : and even before this provision the rule 
 that the felony must be first prosecuted, did not 
 apply to an action brought by a deceased person's 
 
132 
 
 Section 2. 
 
 shall be 
 hroiig'ht. 
 
 LORD Campbell's act, (r.s.o., c. 135). 
 
 representatives under this Act, against any person 
 other than the supposed criminal : e.g., it was no 
 answer to an action against a master for the wrong- 
 ful act of his servant, even though such act amounted 
 to a felony : Osborn v. Gitlett, L.R. 8 Ex. 88. 
 
 Sectwiijj. Q^ Every such action shall be for the 
 
 For whose benefit of the wife, husband, parent and child 
 
 benefit and "» , . . 
 
 whose name [a) of the person whose death has been so 
 caused, and shall be brought {b) by and in 
 the name of the executor or administrator 
 (r) of the person deceased, and in every 
 such action the Judge or jury may give such 
 damages {d) as he or they think proportioned 
 to the injury resulting from such death 
 to the parties respectively for whom and for 
 whose benefit such action has been brought ; 
 and the amount so recovered, after deducting 
 the costs not recovered from the defendant, 
 shall be divided {e) amongst the before 
 mentioned parties in such shares as the 
 Judge and jury find and direct. R. S. O. 
 1877, c. 128, s. 3. 
 
 This section is to the same effect as the English 
 Act, 9 & 10, V. c. 93, s. 2. 
 
 (a) ^'Parent and child.'" For the meaning of these 
 words see s. i, s.s. 2, unfe, pp. 123-4. 
 
 I 
 
LORD Campbell's act, (r.s.o., c. 135). 
 
 133 
 
 person 
 was no 
 wrong- 
 mounted 
 
 For the 
 id child 
 been so 
 and in 
 listrator 
 n every 
 ive such 
 ortioned 
 h death 
 I and for 
 >rought ; 
 educting 
 sfendant, 
 e before 
 5 as the 
 R. S. O. 
 
 he English 
 hig of these 
 
 (b) '' Shall bebrought,'\'tc. This section must be read Section 3. 
 in connection with s. 7, infra, which enables the ActionThow 
 persons beneficially interested, or any or either of '"'ought, 
 them, to sue, in their own names, if no action is 
 brought by the legal personal representative of the 
 deceased within six calendar months after his decease. 
 
 (r) ' 'Inthc nameofthe executor or administrator, etc.'" 
 Although the action is brought in the name of the 
 personal representative of the deceased, yet the 
 damages recovered in the action will form no part of 
 the deceased person's estate for the purpose of 
 administration, and the deceased person's creditors 
 have no claim thereon, nor is it affected by the dis- 
 positions of his will, if any. Where the personal 
 representative sues, he does so merely as trustee for, 
 and on behalf of, those beneficially entitled, viz., the 
 wife or husband, if any, of the deceased, and any 
 parent or child as those terms are defined by s. 2, ante, 
 who have sustained injury by the death of the 
 deceased. 
 
 (rf) '■'■ Siichdamages" etc. As already pointed out, the Damages 
 measure of damages recoverable under this Act is '■'^*-'*'^'^''^'''^- 
 altogether different from that in an action brought by 
 the injured person himself: see ante, pp. 128-9. 
 
 In order to entitle the plaintiff to succeed, there 
 must be some proof that those on whose behalf the 
 action is brought, have really sustained loss by his 
 death : Duckworth v. Johnson, 4 H. & N. 653 ; they 
 cannot recover for loss or damage to the deceased 
 
 
'34 
 
 LORD Campbell's act, (r.s.o., c. 135.) 
 
 Section^3. person's estate : Pulling v. Great Eastern Ry. Co., 9 
 Damages Q.B.D. iio. The legal liability of the deceased to 
 recoverable, jhoge for whose benefit the action is brought, is not a 
 necessary test of injury in respect of which damages 
 may be recovered under this statute. A reasonable 
 expectation of pecuniary advantage by the deceased 
 person remaining alive may be taken into account by 
 the jury, and damages may be given on the basis of 
 that expectation, and the probable pecuniary loss 
 thereby sustained : Franklin v. South Eastern Ry. Co. , 
 3 H. & N. 211 ; Dal ton v. South Eastern Ry., 4 
 C.B. N.S. 296; and see Riley v. Baxendale, 30 L.J. 
 Ex. 87 ; Sykesw North Eastern Ry. Co., 44 L.J.C.P., 
 191 ; e.g., for the loss of the benefit of a superior 
 education or the enjoyment of greater comforts of 
 life : Pym v. The Great Northern Ry. Co., 2 B. & S. 
 759: 6L.T.N.S. 537 ; 31 L.J.Q.B. 249. 
 
 Infants. 
 
 I " ?,. 
 
 Where the deceased person was a youth just turned 
 21, and of no pecuniary advantage to the father 
 suing, but likely to have been a source of expense 
 had he lived, the plaintiff was held not entitled to re- 
 cover, and a non-suit was ordered : Masonv. Bertram, 
 18 Ont. I. In that case, Proudfoot, J. said : " In the 
 case of a parent suing in respect of the death of a 
 child dependent on him, there should be some evi- 
 dence that the pecuniary benefit derived by the parent 
 from the child is such as to exceed the costs of the 
 latter's maintenance. But the jury may consider the 
 probability of a future benefit " ; and see Meddan v. 
 Minnis, 94 L.T.Jour. 411. 
 
Co., 9 
 ied to 
 5 not a 
 mages 
 enable 
 ceased 
 lunt by 
 )asis of 
 ry loss 
 ?j', Co., 
 
 Ry., 4 
 30 L.J. 
 J.C.P., 
 iuperior 
 forts of 
 B. &S. 
 
 it turned 
 e father 
 
 expense 
 ed to re- 
 Bertraitiy 
 
 " In the 
 ;ath of a 
 ome evi- 
 he parent 
 its of the 
 isider the 
 \Ieddan v. 
 
 LORD Campbell's act, (r.s.c, c. 135). 
 
 '35 
 
 Where there was evidence that the deceased, the Section 3. 
 son of a mason, had been earning 4s. per week which Damans 
 had gone into the common stock of the family, and recoverable 
 the jury gave a verdict of ;{;2o, the Court refused to [nf^f^ts."' °'^ 
 interfere, though two of the Judges thought the case 
 went to the extreme verge of the law : Duckworth v. 
 Johnson, 29 L.J. Ex. 25, and see Botirke v. Cork &> 
 Macroom Ry., Ir. L.R. 4 C. L. 682. The fact that the 
 deceased child has rendered trifling household services, 
 on which it is impossible to place any pecuniary value, 
 is insufficient: Hollcran v. Bagndl, Ir.L.R. 4 C.L. 
 740: and where it appeared that the deceased child 
 was under contract with his father to work for him at 
 full wages, it was held that the father had suffered 
 no pecuniary loss from his son's death : Sykes v. 
 North Eastern Ry., 32 L.T.N.S. 199 ; 44 L.J.C.P. 191. 
 In an action by a father for the death of his son, 
 where the father was an old man getting infirm, and 
 lived in the lodge of a hospital, and was employed 
 at 3s. 6d. per week in carrying coals round the 
 wards, and the son was a young man earning good 
 wages, but did not live with his father nor contribute 
 to his support, but was in the habit of occasionally 
 assisting him by carrying the coals for him, it was 
 nevertheless held that the father had a reasonable 
 expectation of pecuniary benefit from the continuance 
 of his son's life, which would entitle him to recover ; 
 but that ;^75 was, under the circumstances, an exces- 
 sive amount to allow : Dalton v. South Eastern 
 Ry. Co., 4 C. B. N. S. 296 ; and see Hetherington 
 V. North Eastern Ry Co., 9 Q.B.D. 160. And where 
 
'36 
 
 LORD Campbell's act, (r.s.o., c. 135). 
 
 Iliogitimate 
 child. 
 
 Section 3. a mother sued for the death of hei son, aged 14, who 
 
 Damages ^^'^ never earned any wages, but whose capabilities 
 
 recoverable were valued at 6d. a day, it was held there was a 
 
 infants. probability that he would, had he lived, have earned 
 
 more, and would have devoted part of his earnings to 
 
 her support, which probability was increased by the 
 
 past filial conduct of the deceased : London v. Grea/ 
 
 Southern (Tr Western Ry. Co., 16 Ir. CL. R. 415. 
 
 The parents of an illegitimate child are not entitled 
 to sue under this Act for the death of such child, even 
 though they have sustained pecuniary damages by 
 the death of the child : Gibson v. Midland Ry. Co., 
 2 Ont. 658 ; and see IVeir v. Coltness Iron Co., 16 
 Ret. 614 : neither can an illegitimate child sue for 
 the death of his parent : Dickinson v. North Eastern 
 Ry. Co., 2 H. & C. 735. 
 
 Although, on the death of a wife, the husband can 
 not recover damages of a sentimental character, yet 
 the loss of household services accustomed to be per- 
 formed by the wife, which would have to be replaced 
 by hired services, is a substantial loss, for which 
 damages are recoverable, as is also the loss to the 
 children of the care and moral training of their 
 mother : St. Lawrence &" Ottawa Ry. Co. v. Lett, 
 II S.C. R. 422 ; and see Sibbald v. The Grand Trunk 
 Ry., 19 Ont 164; 18 Ont. App. 184; affirmed by 
 S.C, 20 S.C. R. 259. 
 
 Sentimental The jury cannot take into consideration the mental 
 
 recovei^ble. suffering occasioned to the survivors who are entitled 
 
 beneficially under this Act : Blake v. The Midland 
 
 Damages 
 recoverable 
 for death of 
 husband or 
 wife. 
 
^, who 
 jilities 
 was a 
 >arned 
 ings to 
 by the 
 , Great 
 
 15- 
 
 jntitled 
 d, even 
 Lges by 
 >. Co., 
 Co., 1 6 
 sue for 
 Eastern 
 
 )and can 
 cter, yet 
 c* be per- 
 replaced 
 or which 
 is to the 
 of their 
 ). V. Lett, 
 lid Trunk 
 firmed by 
 
 he mental 
 ire entitled 
 e Midland 
 
 LORD Campbell's act, (r.s.o., (.. 135). \yj 
 
 Ry. Co., 18 Q.B. 93 ; 21 L.J.Q.B. 233 : nor any Seition .5. 
 damages of a sentimental character : .SV Lawrence & 
 Ottaiva Ry. Co. \. Lelf, 11 S.C.R. 422; and see 
 Canadian Pacific Ry Co. v. Robinson, 14 S.C.R. 105; 
 City of Montreal v. iMbelie, 14 S.C.R. 741 : and 
 compensation for funeral expenses, or family mourn- 
 ing is not recoverable : Dalton v. South Eastern Ry. 
 Co., 4C.B.N.S. 296. 
 
 A recovery of damages under this Act is no bar to Recovery 
 
 another action by the deceased person's personari"**^*" '•^'^ 
 . .. c , .... Act, no bar 
 
 representatives for damages occasioned by the same to action for 
 act of negligence to the deceased's estate : T^eggott v. damages to 
 Great Northern Ry. Co., i Q.B.D. 599. deceased. 
 
 Where, after verdict and before judgment was Death of 
 entered, one of the children to whom damages were ^eneficiary 
 awarded, died, the Court ordered a new trial, unless verdict and 
 the plaintiff consented to a reduction of the damages J'^'Sf"'®"'- 
 awarded to the deceased child to a sum commensurate 
 with the expense occasioned by its maintenance and 
 illness : Sibbald v. The Grand Trunk Ry. , supra. 
 
 Where the question at issue was whether or not jury shirking 
 the deceased was guilty of contributory negligence, and '»»"«. 
 the jury brought in a verdict for the plaintiff for 40s., 
 apportioned as follows, viz., £1 for the widow, and 
 los. for each child, the Court granted a new trial on 
 the ground that the jury had shrunk from their duty 
 in deciding the issue : Springett v. Balls, 6 B. & S. 
 477- 
 
'3« 
 
 i.oKO Campbell's act, (r.s.o., c. 135.) 
 
 Section j. Where the action is only maintainable by virtue of 
 
 Limit of ^''"' Workmen's Compensation for Injuries Act, iSgs, 
 
 damages ante, the damages cannot exceed in the aggregate 
 
 recoverabli* ^, ^ ^' t • r 1 » 
 
 under *"® amount mentioned in s. 7 of that Act ; see ante, 
 
 W. C. I. Act. p. 83. 
 
 Deductions. In actions maintainable only under the provisions 
 of The Workmen's Compensation for Injuries Act, rSga, 
 no deduction can be made from the damages recover- 
 able, except as provided in that Act : see ss. 7 and 
 1 2, ante, pp. 83, %. 
 
 But in other cases under this Act, the benefit 
 accruing from the acceleration of the payment of a 
 policy on the life of the deceased may be deducted ' 
 Grand Trunk Ry. v. fennings, 13 A. C. 800; 59 
 L.T.N. S. 679. 
 
 in that case it was said by Lord Watson, delivering 
 the judgment of the Judicial Committee of the Privy 
 Council : " It appears to their Lordships that 
 money provisions made by the husband for the rnain- 
 tenance of his widow, in whatever form, are matters 
 proper to be considered by the jury in estimating the 
 loss ; but the extent, if any, to which these ought to 
 be imputed in reduction of damages must dr.jend 
 upon the nature of thi^ nt-ovision and means of the 
 deceased. W'lerc tie dei^^.i^ed did not earn his own 
 living, but ' annual income from property, one- 
 
 half of wl aad been sett' on the widow, a jury 
 might reasi ibly come to the conclusion that to the 
 extent of that half the widow was not a loser by his 
 
LORD Campbell's act, (r.s.o., c. 135). 
 
 »39 
 
 <leath, and might confine their estimate of her loss Section 3. 
 to the interest which she might probably have had in oeduciTonM 
 the other half. Very different considerations occur from 
 where the widow's provision takes the shape of a policy '**""*^«'*- 
 on his own life, effected, and kept up, by a man in the 
 position of the deceased William Jennings, {an employee 
 of an express company earning ^75 per month). 
 The pecuniary benefit which accrued to the respon- 
 dent from his premature death consists in the acceler- 
 ated receipt of a sum of money the consideration 
 for which had already been paid for, by him, 
 out of his earnings. In such a case the extent of the 
 benefit may be fairly taken to be represented by the 
 use or interest of the money during the period of 
 acceleration ; and it was upon that footing that Lord 
 Campbell, in Hicks v. The Newport^ etc., Ry. Co., (4 
 B. & S., note p. 403) suggested to the jury that, 
 in estimating the widow's loss, the benefit which she 
 derived from acceleration, might be compensated by 
 their deducting from their estimate of the future 
 earnings of the deceased the amount of premiums 
 which, if he had lived, he would have had to pay out 
 of his earnings for the maintenance of the policy": 
 see also Beckett v. The Grand Trunk Ry. Co., 16 
 S.C.R. 713. 
 
 Where the damages are excessive the Court may Excessive 
 order a new trial : Secordv. Great Northern Ry. Co., i jj damag^es. 
 U.C.Q.B. 631 ; Morleyv. Great Western Ry. Co., 16 
 U.C.Q. B. 504; Dalton v. South Eastern Ry Co., 4 
 C.B.N.S. 296: unless the plaintiff consent to a reduc- 
 
140 
 
 LORD Campbell's act, (r.s.o., c. 135). 
 
 Division of 
 damages. 
 
 Section .1. tion to the amount the Court thinks reasonable : Sibbald 
 V. The Grand Trunk Rv. Co., 19 Ont. 164; 18 Ont. 
 App. 184; affirmed by S.C. 20 S.C. R. 259; Toms 
 V. Whitby. 35 U C.Q.B. 195. 
 
 {e) ^'^Shall be divided," etc. Where theamountispaid 
 by way of compromise to the legal personal represen- 
 tative, the fund is a trust fund in his hands, and the 
 parties beneficially entitled may obtain an apportion- 
 ment of it by action for that purpose : Condliff v. 
 Condliff, 29 L.T.N. S. 831 ; 22W. R. 325; Buhner v. 
 Bulmer, 25 Ch. D. 409; or, perhaps, by petition in 
 the action, if any, in which the money has been re- 
 covered ; and where the money has been paid into 
 Court, the Court may make an apportionment before 
 letting it be paid out : Shallow v. Vernon, 9 Ir. 
 C. L. R. 150, and see post, ss. 8, 9; and, by analogy 
 to the Statute of Distributions, where the parties 
 interested were the widow andchildren of thedeceased 
 the Court awarded one-third to the widow and the 
 other two-thirds to the children : Sanderson v. 
 Sanderson, 36 L.T.N. S. 847. 
 
 Where the action is only maintainable under The 
 
 Workni' n's Compensation for Injuries Act, i8g2, the 
 
 jury, if any, makes the aportionment, and where 
 
 there is no jury, then the Judge at the trial makes it ; 
 
 see s. 8 of that Act, ante, p. 85. 
 
 Section 4. 4i. Where the death of a person has been 
 
 Action may caused by any wound or injary received in a 
 aga'inst'^'" ducl, which wound or injury has been in- 
 
LORD Campbell's act, (r.s.o,, c. 135). 
 
 '41 
 
 duels. 
 
 flicted by the use of any description of fire- Section 4. 
 arms or other deadly weapon whatsoever, in princirais, 
 such case the person inflicting such wound abeuorsti" 
 or injury, and all persons present aiding or' 
 abetting the parties in such duel as seconds 
 or assistants therein, may be proceeded 
 against under this Act, although no action 
 for damages could 1 ive been brought by 
 the person whose death was so caused had 
 death not ensued from the infliction of such 
 wound or injury. R.S.O. 1877, c. 128, s. 4. 
 
 There is no similar provision in the English Acts. 
 See ante, s. 2 and note. 
 
 5. Not more than one action shall lie for Section 5. 
 and in respect of the same subject matter of One action 
 
 1 • 1 1 . .... °"'y 'o lie for 
 
 complaint; and every such action shall be the same 
 commenced within twelve months after the umitation 
 death of the deceased person. R.S. 0. 1877, **'^''^°*' 
 c. 128, s. 5. 
 
 This section is in the same terms as the English 
 Act (9 & 10 Vict, c. 93), s. 3. 
 
 The time for a deceased workman's representatives 
 commencing an action under The Workmen's Com- 
 pensation for Injuries Act, i8g2, is the same ; see 
 s. 9 of that Act, ante, p. 89. 
 
142 
 
 LORD Campbell's act, (r.s.o., c. 135). 
 
 Section 5. 
 
 Action by 
 some of 
 parties 
 entitled. 
 
 Where an action is commenced by some only of 
 the parties who are entitled beneficially, any other 
 parties interested may, if necessary, apply to be made 
 parties thereto, but they are not at liberty to com- 
 mence another action on their own behalf. The 
 twelve months are calendar months : see The Inter- 
 pretation Act, (R. S. O., c. i) s. 8, s.s. 15. 
 
 As to There are certain other Acts of Parliament which 
 
 other acts prescribe a special period of limitation for the bring- 
 of limitation ing of actions against certain bodies corporate therein 
 
 apply. 
 
 Conflict of 
 decisions. 
 
 referred to ; e.g.. The Railway Act, (51 Vict. c. 29) 
 s. 287 (D), limits the time for bringing actions 
 against railways under the control of the Dominion 
 Government for damages sustained "by reason of 
 the railway " to one year next after the time when 
 the supposed damage was sustained, or, in case of 
 continuing damage, from the time it ceased ; by 
 R. S. O. c. 170, s. 42, six calendar months is limited 
 for bringing actions against railway companies under 
 Provincial control ; and as to exhibition companies : 
 see R. S. O. c. 162, s. 20 ; and as to road companies : 
 see R. S. O. c. 159, s. 48 ; and as to municipal water 
 works : see R. S. O. c. 192, s. 24 ; and as to timber 
 slide companies : see R. S. O. c. 160, s. 53. 
 
 It has been contended that where these special 
 periods of limitation are prescribed they override the 
 provisions of this section, and in Conger v. The Grand 
 Trunk Ry., 13 Ont. 160, that contention was upheld, 
 but in the recent case of Zimmer v. The Grand Trunk 
 Ry., 19 Ont. App. 693, three of the judges of the Court 
 
 
LORD CAMPBELL'S ACT, (r.S.O., C, 135). 
 
 143 
 
 of Appeal (Hagarty, C.J.O., Burton, and Maclennan, Section 5. 
 JJ.A.) dissented from that view of the law. As, lj^j^^j^ ^j. 
 however, that case rlso turned upon another point actions under 
 sufficient for its disposition, it can not be considered ' 
 
 a conclusive decision of this question. It may be 
 observed that if the period of limitation fixed by the 
 various Acts above referred to, were held to run as 
 against the deceased person's representatives from 
 the date of his death, as being the period at which 
 the damage was sustained : see The Canadian Pacific 
 Ry. Co. V. Robinson, (1892) A. C. 481 ; 67 L.T. N. S. 
 505 : then the reasons assigned by the learned judges 
 in Zimmer v. The Grand Trunk Ry. against the 
 ' pecial periods of limitation fixed by the above men- 
 tioned Acts overriding the provisions of this Act, 
 would appear to have less force : sedvide s. 7, post. 
 
 It would seem that the deceased may have been 
 barred in his lifetime of his right of action, but that 
 that fact would not afford any defence to any action 
 by his representatives, if commenced within the period 
 of limitation applicable to them : see The Canadian 
 Pacific Ry. Co. v. Robinson, supra. 
 
 As already pointed out, ante p. 126, The IVork- 
 tnen's Compensation for Injuries Act, i8g2, s. 9, pre- 
 scribes two different periods of limitation, the one 
 applicable to actions by the workman himself, and 
 
 the other to actions by his representatives. 
 
 Section 6. 
 
 6. In every such action the plaintiflF shall, piaiiuiff to 
 in his statement of claim, set forth or deliver particulars. 
 
144 
 
 LORD Campbell's act, (r.s.o. , c. 135). 
 
 Section 6. 
 
 RiS^ht of 
 beneficiaries 
 to intervene. 
 
 !*., 
 
 Section 7. 
 
 therewith full particulars of the persons for 
 whom and on whose behalf such action is 
 brought, R.S.O. 1887, c. 128, s. 6. 
 
 This section is to tlie same effect as the English 
 Act (9 & 10 Vict. 93), s. 4. 
 
 Where there are any parties who claim to be bene- 
 ficially interested, whose rights are not admitted by 
 the plaintiff, such persons would probably be held 
 entitled to apply to the Court on petition to have 
 their claims recognized, as the preceding section 
 would appear to preclude them from bringing an- 
 other action on their own behalf. On the other 
 hand it might be urged that such a claim would 
 have to be litigated in an action instituted for the 
 purpose of administering the fund recovered, which 
 is in the nature of a trust fund for those bene- 
 ficially entitled : see next section, and see ante, s. 3, 
 note {e)y ante p. 140 ; but see s. 9, post. 
 
 Where the action is only maintainable under The 
 Workmen's Compensation for Injuries Act, i8g2, the 
 particulars required by that Act, s. 15, and notice of the 
 accident must also have been served as required by 
 s. 9 ; but the omission to give the notice, or the 
 serving of a defective notice, may be cured in certain 
 cases : see s. 13, s.s. 5, and s. 14, and notes. 
 
 7. If, and so often as it shall happen at 
 any time cr times hereafter in any of the 
 
 Where no 
 
 brought with- cases intended and provided for by this Act, 
 
IS for 
 on is 
 
 inglish 
 
 e bene- 
 tted by 
 be held 
 to have 
 
 section 
 ;ing an- 
 le other 
 1 would 
 
 for the 
 d, which 
 56 bene- 
 nte, s. 3, 
 
 rtder T/ie 
 rSgs, the 
 ice of the 
 luired by 
 ;, or the 
 in certain 
 s. 
 
 ppen at 
 r of the 
 his Act, 
 
 LORD Campbell's act, (r.s.o., c. 135). 145 
 
 that there shall be no executor or adminis-S*<^^'o" 7- 
 trator of the person so deceased, or that '" »•" months 
 
 , I 1 • I ... by executors 
 
 there being such executor or administrator, of persons 
 no such action as in this Act mentioned acS ma7 
 shall, within six months after the death of S^: l!'?"^''* 
 
 D^ Persons 
 
 such deceased person, have been brought l'^"^'''^'''"^. 
 
 I , . . f. interested, in 
 
 by and in the name of his or her executorthe result of 
 
 ... , , . , action. 
 
 or administrator, then and in every such 
 case, such action may be brought by and in 
 the name or names of all or any of the per- 
 sons (if more than one) for whose benefit 
 such action would have been, if it had been 
 brought by and in the name of such executor 
 or administrator ; and every action so to be 
 brought, shall be for the benefit of the same 
 person or persons, and shall be subject to 
 the same regulations and procedure, as 
 nearly as may be, as if it were brought by 
 and in the name of such executor or admin- 
 istrator. 49 V. c. 26, s. I. 
 
 This section is the same as the English Act (27 
 & 28 Vict., c. 95), s. 1. 
 
 The action may be maintained by those bene- 
 ficially interested within the six months after the death 
 of the deceased, where at the time the action is insti- 
 
146 
 
 Section 7. 
 
 *'■ 
 
 LORD Campbell's act, (b s.o., c. 135), 
 
 tuted there is 110 legal personal representative ap- 
 pointed : Lampmati v. Gainsborough, 17 Ont. 191 ; 
 Holleran v. Bagnell, Ir. L. R. 4 C. L. 740. 
 
 Where some of the persons beneficially entitled 
 bring the action, they are trustees of the fund for all 
 who are beneficially interested, in the same way that 
 the legal personal representative would be, if the 
 action were brought in his name : see ante, p. 107, 
 note {e). Where the legal personal representative 
 sues, he assumes the responsibility of being made 
 personally liable to the defendants for costs in case 
 the action is dismissed with costs : see Smith v. 
 Williamson, 13 P. R. 126; Ex. p. Bro7vn, 17 Q.B.D, 
 488 : it would therefore be prudent for him to re- 
 quire an indemnity against costs from those bene, 
 ficially interested. 
 
 Section 8. 
 
 Money paid 
 into Court 
 may be paid 
 in one sum 
 without 
 regard to its 
 division into 
 shares. 
 If not accept- 
 ed, defendant 
 entitled to 
 verdict on 
 issue as to 
 sufficiency if 
 judg^e or jury 
 think it suffi- 
 cient. 
 
 8. And whereas by section 3 it is pro- 
 vided that the Judge or jury may give such 
 damages as they may think proportioned to 
 the injury resulting from such death to the 
 parties respectively for whom and whose 
 benefit such action shall be brought, and 
 amount so recovered, after deducting the 
 costs not recovered from the defendant, 
 shall be divided between the before men- 
 tioned parties insuch shares as the judge 
 or jury shall by their verdict direct ; be it 
 
I.ORD CAMPBELL'S ACT, (R.S.O., C, 135.) 
 
 '47 
 
 ve ap- 
 . 191 ; 
 
 -ntitled 
 
 for all 
 ay that 
 , if the 
 
 p. 107, 
 eniative 
 g made 
 
 in case 
 Smith V. 
 
 Q.B.D. 
 m to re- 
 ise bene. 
 
 is pro- 
 ive such 
 ioned to 
 th to the 
 i whose 
 rht, and 
 :ting the 
 efendant, 
 ore men- 
 he Judge 
 ect ; be it 
 
 enacted and declared, that it shall be suffi- Section 8. 
 cient, if the defendant is advised to pay 
 money into Court, that he pay it as a 
 compensation in one sum to all persons en- 
 titled under this Act for his wrongful act, 
 neglect or default, without specifying the 
 shares into which it is to be divided by the 
 Judge or jury; and if the said sum be not 
 accepted, and an issue is taken by the 
 plaintiff as to its sufficiency, and the Judge 
 or" jury shall think the same sufficient, the 
 defendant shall be entitled to the verdict 
 upon that issue. 49 V. c 26, s. 2. 
 
 This section is to the same effect as the English 
 Act {27 & 28 Vict. c. 95), s. 2. 
 
 9, In all cases where the compensation Section 9. 
 is not apportioned as hereinbefore provided, App^n- 
 it shall be referred to a Judge to apportion '"®"'' 
 the same among the parties entitled and to 
 provide for the costs thereof as he may 
 think meet. 50 V. c. 8, Sched. 
 
■.JLi|lifliB,.'M 
 
 
 \ 
 
 ! ' 
 
INDEX. 
 
 ABATEMENT. See Action. 
 
 ACCORD AND SATISFACTION, 
 
 defence of, to action under Lord Campbell's Act, i zb. 
 under W.C.I. Act, 92, 9,3, 94. 
 
 ACCIDENT. See Defects. 
 
 inevitable, employer not liable for, 42 
 
 ACTION. See Lord Campbell's Act. 
 
 abatement of, right of representatives under Lord Campbell's Act, 
 
 to continue, 127, 128. 
 adding parties to, under Lord Campbell's Act, 142. 
 cause of, in deceased, and his representatives, whether identical, 
 
 127, 128, 129. 
 causing death of another, for, 1 24, 1 25, 1 26. 
 
 defences to, 126. 
 compensation. See Compensation. 
 confession of liability, defendant may file, 116, 117. 
 
 form of, 119. 
 consolidation of, with others, under W.C.I. Act, 114, 115. 
 costs of, subsequent to filing confession, 117. 
 
 payment into Court under Lord Campbell's 
 
 Aci, 146, 147. 
 death of workman, pending, effect of, 127. 
 defendant may apply to consolidate, 1 14, 117. 
 
 pay money into Court under Lord Campbell's Act, 
 146, 147. 
 judgment, where several plaintiffs, under W.C.I. Act, 117, 119. 
 limitation of, whether other Acts apply to, 142. 
 
 under Lord Campbell's Act, 141, 142. 
 under W.C.I. Act, 89, 90, 91, 126, 132, 133. 
 notice of, under W.C.I. Act, 89. 
 
'5° 
 
 INDEX. 
 
 ACT\ON~Coiitinued. 
 
 parties to, under Lord Campbell's Act, 142, 144, 145, 146. 
 
 payment into Court may he made under Lord Campbell's Act, 146, 147. 
 
 proceedings after, 147. 
 personal representative, ri^ht of, to sue under Lord Campbell's Act, 
 
 plaintiff's, several may be joined under W.C.L Act, 118. 
 
 death of, see abatement, supra. 
 revivor of, by parties entitled under Lord Campbell's Act, 127. 
 
 when commenced by workman under W.C.L Act, 86, 87. 
 second, not maintainable under Lord Campbell's Act, 127, 128. 
 time for bringing, under Lord Campbell's Act, 141, 142. 
 
 W.C.L Act, 89, 90,91. 
 
 ARRANGEMENT. 
 
 «)f ways, works etc., defects in, 25, 28, 29. 
 
 ARTIFICER. 
 
 definition of, 20, 21. 
 
 entitled to benefit of W.C.L Act, 7. 
 
 ASSESSORS. 
 
 appointed only in non-jury cases, 1 13. 
 appointment of, 107-111, 113, 114. 
 deposit required on application for, 1 1 1 
 
 may be waived, 112. 
 duty of, 88, 112, 114. 
 non-attendance of, 1 1 1. 
 remuneration of, in, 112. 
 
 how borne, 112. 
 
 BRIDGES. iVf- Railways. 
 
 BUILDINGS. See Ways. 
 defects in, 42. 
 
 in course of erection, 43. 
 
 liability of owner to contractor's workmen for, 57, 61. 
 
 BY-LAWS. 
 
 approval of by Lieutenant Governor, effect of, 51. 
 defective, injury arising from, 51, 80, 81. 
 
INDEX. 
 
 i5» 
 
 BY-LXVJS— Continued. 
 
 defective, liability of employer for, 80. 
 
 what are, 52. 
 improper, injury arising from, 51, 52. 
 
 CAPTAIN OF SHIP. 
 
 negligence of, liability of employer for, 48. 
 
 COMMON EMPLOYMENT. 
 
 defence of, when available, 3, 4, 5, 27, 78. 
 
 formerly extended to neligence of foremen, 3, 4. 
 COMPENSATION. 
 
 action for, by workman, 86. 
 
 revivor of, by his representatives, 86, 87. 
 when to be brought, 89, go, 91, 126. 
 representatives of workman, 86, 87. 
 
 deceased under I^ord Campbell's 
 Act, 132. 
 amount claimed under VV.C.I. Act, particulars of, 106, 107. 
 
 where verdict exceeds, 107. 
 recoverable under W.C.I. Act, 83, 138. 
 damages, when to be deducted from under W.C.I. .Act, 95-97. 
 deductions from, 85, 95-97, 138. 
 
 distribution of, in case of death, under W.C.I. Act, 85, 86, 88. 
 under Lord Campbell's Act, 132, 140, 146, 147. 
 how estimated under W.C.I Act, 83, 84. 
 insurance policy, when deducted from, 85. 
 penalty, to be deducted from, 95, 96, 97. 
 person liable to pay, is an employer within W.C.I. Act, 13. 
 
 CONSOLIDATION OF ACTIONS. 
 
 judgment after, effect of, 116, 117, 119. 
 proceedings for, under W.C.I. Act, 114-117. 
 terms may be imposed on, 115. 
 undertaking by defendant on, 1 15. 
 
 CONTRACTOR. 
 
 employer, of, when deemed employer of his servants, 13, 57-60. 
 
 liability of, to his sei-vants, 59, 61. 
 
 servants of, when entitled to benefit of W.C.I. Act, 23, 24, 59-61 
 
»5a 
 
 INDEX. 
 
 ^ 
 
 II 
 
 i 
 
 CONTRIBUTORY NEGLIGENCK. 
 
 continuance in employment after i<novs'ledge of defect is not, 79, 80. 
 defence of, under W.C.I. Act, 79. 
 
 Lord Campbeir.>« Act, ii6. 
 onus of proof, 79. 
 
 COSTS. See Action. 
 
 CROWN. 
 
 action will not lie a(>;ainst, under Lord Campbell's Ac', 131. 
 liability of, under Dominion Acts for torts of servants, 131. 
 
 DAMAGES. S'?*? COMPKNSATION. 
 
 DEATH. 
 
 beneficiary, of, entitled under Lord Campbell's Act, 137 
 caused by another, action for, 124, 125. 
 
 none at Common Law. r 25. 
 plaintiff, of, in action under W.C.I. Act, 127, 128. 
 
 DEFECTS. See Machinery- Plant— Ways— Works. 
 
 in buildings, etc., liability of employer for, 25. 
 
 knowledge of, by workmen, effect of, 68, 69. 
 
 latent, 70, 72, 130, 131. 
 
 not due to negligence, 70, 130, 131. 
 
 omission of workman to notify employer of, 81, 
 
 82, 83. 
 workman's duty to notify employer of, 68, 69. 
 
 DEFENDANT. See Action. 
 
 DOMINION RAILWAY ACT. 
 
 provisions of, as to packing frogs, 65, 66. 
 
 spaces between rails, 66. 
 
 DUEL. 
 
 abettors liable to action, 140, 141. 
 principals " " 140, 141. 
 
 seconds " *' 140, 141. 
 
INDBX, 
 
 '3.> 
 
 , 79, 80. 
 
 J, 69. 
 
 r of, 81, 
 )8, 69. 
 
 EMPI.OYKR. See Mastkr. 
 
 by-laws of, defects in, 26, 51, 
 
 confession of liability under W'.C. 1. Act, 116, 117, 
 
 contractor, liability for ne>;li^once of, 7, 16. 
 
 to servants of, 57-60. 
 death of, pendente life, 94. 
 
 defects in ways, etc, liability for, 25, 27, 34, 35, 57-60. .SV^-Dkkki'TS. 
 due to negligence of contractor, ,14, 35. 
 latent, 70, 72, ijo, 131. 
 by-laws, etc., 26, 51. 
 rules and regulations, 26, 51. 
 foreman of, liability for negligence of, 25, 34, 35, 44-47. 
 foreman of contractor, liability for negligence of, 57-59. 
 inevitable accident, not liable for, 42. 
 meaning of, in W.C.I. Act, 7, 10-13, 58, 59. 
 negligence of foreman of, 25, 34, 35, 44-47. 
 
 person giving orders, 25, 50, 51. 
 superintendent of, 25, 44-47. 
 in carrying on works, 73. 
 See Defects. 
 orders, negligence in bearer of, 50. 
 
 person giving, who is, 50, 56. 
 personal representatives of, liability of, under W.C.I. Act, 94, 95. 
 servants of, liability for acts of, 16, 17. 
 superintendent of, liability for negligence of, 25 44-47. 
 Volenti nonfit injuria, when a defence to action against, 40, 73. 
 
 FELLOW-SERVANT, 
 
 negligence of, master's liability for, 3, t^^, 37. 
 
 FELONY, 
 
 action lies under Lord Campbell's Act, notwithstanding, 131 
 need not be first prosecuted, 131. 
 
 FOREMAN, 
 
 "6&''Rence of, liability of master for, 37, 44-47, 50, 51. 
 
'54 
 
 INDEX. 
 
 «^^ 
 
 '"''''Tf' proceedings under VV.CLAct^ .a, 
 
 confession of UabiUty under W.C.I. Act, uQ- 
 notice of injury under W.CI. Act, 99, .00, .c. 
 
 "FROG," 
 
 meaning ofin W.C.I. Act, 67. 
 
 railway, packing, provisions as to, 62. 65. 
 
 injuries resulting from neglect to pack, bz, 05. 
 
 "GUARD RAIL," 
 
 meaning ofin W.C.I. Act, 67. 
 
 HANDICRAFTSMAN, 
 
 entitled to benefit of W.C.I. Act. 7- 
 meaning of term in W.C.I. Act, 20, 2.. 
 
 HORSE, 
 
 plant, comes under term, 39. 
 
 vicioi.s. iniury caused to servant by. 39- 
 
 Servant voluntarily taking risk of managmg, 40. 
 
 '''^''^Led bv defects in ways, etc , 25, ^7, .14. 35- 57-6o. 
 
 by-laws, etc., 26, 51. 
 latent, 70, 72, 130, «3'- 
 inevitable accident, 42. 
 negligence of contractor, 34, 35- 
 
 foreman, 25, 34. 3.S. 44-47- 
 person giving orders, .15, 5°' 5'- 
 superintendents, 25, 34> 3.S- 
 in ca'-rying on works, 73. 
 
 INTERPRETATION OF WORDS, 
 
 LNDER W. C. I. Acr. 
 " employer," 7. 
 "frog," 67. 
 " guard rail," 67. 
 "handicraftsmen, 20, 21. 
 
 " labourer," 19- 
 
INDEX. 
 
 INTERPRETATION OF VVORDS-Co«//«m^^. 
 UNDER W. C. I. P^cx -Continued. 
 " packing," 8. 
 "plant," 39. 
 " railway servant," 8. 
 " superintendence," 6, 7. 
 " wing- rail," 67. 
 " workman," 7. 
 
 LNDER Lord CAMPbELLs Act, 
 "child," 124. 
 " parent," 123, 124. 
 
 JOURNEYMAN. 
 
 entitled to benefit of W. C. I. Act, 7. 
 meaning of term, 20. 
 
 JUVENILE, 
 
 duty of master as to, 75. 
 
 LORD CAMPBELL'S ACT. 
 
 action under, administrator may bring, 132. 
 
 beneficiaries may bring, 142, 144, r46. 
 
 executor may bring, 132. 
 
 only one can be brought, 141. 
 
 time for bringing, 141, 142, 144-146. 
 
 when it lies, 124, 125, 140, 141. 
 
 who may bring, 132, 144-146. 
 beneficiaries, when they may sue under, 144-146. 
 
 death of, after verdict, 137. 
 
 who entitled as, 132. 
 cause of action under, whether new? 127-129. 
 child, illegitimate, not entitled under, 124. 
 compensation under, how apportioned, 132, 140, 147. 
 
 see damages infra. 
 Crown, not liable, under, 131. 
 damages apportionment of, 32, 147, 
 deduction from, 138, 139. 
 division ot, 132, 140, 147. 
 
 '33 
 
'56 
 
 INDEX. 
 
 H^"^ 
 
 LORD CAMPBELL'S ACT— Continued. 
 
 estate, to, not recoverable, 1 37. 
 excessive, 139, 14 . 
 limit of, under W. C. I. Act, 138. 
 measure of, 128, 129, 133, 134. 
 
 for death of child. ' 14-136. 
 'lusi- Miii, 136. 
 wile, 136. 
 may be paid into Court, 146, 147. 
 sentimental, not recoverable, 137. 
 death of beneficiary, after verdict, 137. 
 duel, death in, action liesfor causing', 140, 141 
 executor, may sue, 132. 
 felony, action lies, notwithstanding' act amounts to, 131. 
 
 need not be first prosecuted, 131. 
 illegitimate child, not entitled to benefi* .;i|, i?.) 
 inevitable accident, death from, no actii ■,■ li'.'s |2. 
 latent defects, death resulting from, no action iies, 131. 
 money may be paid into Court in action, under 146. 
 
 without specifying shares, 147. 
 negligence, absence of proof of, 130, 131. 
 parent of illegitimate chiid, cannot sue under, 124, 136. 
 parties to actions under, 132, 142, 144, 146. 
 entitled to benefit of, 132. 
 
 particulars of, to be delivered, 143, 144. 
 personal representatives, may sue under, 132, 133. 
 
 are trustees under, 133. 
 persons entitled under, particulars of to be delivered, 143, 144. 
 recovery under, no bar to action for damage to estate, 137. 
 right of action under, and under W.C.I. Act not cumulative, 130. 
 
 whether a new cause of action, 127, 128, 129. 
 Statute of Limitations, against deceased, when no bar, 143. 
 verdict, set aside, where jury shirked issue, 137. 
 wrongful act, is foundation of action under, 130. 
 MACHINERY. iV*" Ways. 
 bursting of boilers, 39. 
 causing injury, not necessarily defective, 38. 
 
INDEX. 
 
 .■>/ 
 
 147. 
 
 I, 143. '44- 
 
 , 144- 
 
 57- 
 
 ve, 130. 
 
 7, 128, 129- 
 
 43- 
 
 MACHINERY— Co«//// wo'. 
 
 defective, neglect to remedy, ,^8, 39. 
 defects in, 36, 38. 
 
 must be due to negligence, 67, 68. 
 known to worknvn, 68, 69. 
 
 liability of own' r to contractors' servants, 57, 58-61. 
 deficiency in power, 36. 
 fencing, 37. 
 
 Factories' .Act, provisions of, as to, 37. 
 hired, defects in, 36. 
 
 latest, and most improved, employer not bound to provide, 36. 
 meaning of term, 36. 
 
 must be employer's, or used with his consent, 43. 
 oilinjf in motion, 36. 
 
 omission of statutory requirements, 37, 41. 
 to fence, 37. 
 
 oil, not a defect, 36. 
 user of, after notice of defect, 38, 39. 
 
 without employer's authority, 37, 43. 
 workman using, without employer's consent, 43. 
 
 .MANUAL LABOR, 
 
 employment in, how far necessary to entitle workman lo benefit of 
 W.C.I. Act, 18, 22,23. 
 
 MASTER. See Employer. 
 
 and servant, relationship, test of, 11, 12. 
 competent servants, bound to employ, 75. 
 competency of servants, does not warrant, 75. 
 defects in ways, plant, etc. of, liability for, 25. 
 
 latent, non-liability for, 70, 72, 130, 131. 
 known, duty as to, 72. 
 omission of workman to notify, 81-83. 
 workman's duty to notify, 68, 6g. 
 duty of, to servants, 70, 71. 
 
 juvenile eniployees, 7:5. 
 as to machinery, 70-74. 
 at law, 2, 3. 
 
INDEX. 
 
 MXST'ER-Conii fitted. 
 
 liability of, for acts of servants, .6, . • 
 
 ^ negligence of contractor, 34. 35. 
 
 peLftting useof defective ways, etc., 76, 77- 
 
 machinery, duty of, regarding, 7°, 74- 
 neglig»i"ce of, 71, 73- 
 
 ways,liabiUyof,asto,25.28-33. 
 
 — •''"*^s^^ut^U";rS-33. 
 
 -^^;^S::f^Ie;efitofW.C.I.Act,7. 
 '''''\''n'titledtobenefitofW.C.I..^ct,7. 
 
 ^"^^S^ry. wben a defence 78^. ^^^^^^^. 
 essential to right of action under W.C.I, 
 in carrying on works, 73- 
 of foreman, 25, 34. 35. 44-47- 
 
 person giving orders, 25, 5°. j'- 
 
 superintendent, 25, 44-47- 
 
 ^^^^^^f: . .,„ „nder W. C. I. Act, 89, 98. 99- 
 
 of injury, under ^^^^^^^ .^^ ^^^ 
 
 form of, qq, 100, lOi. 
 insufficiency of, 99- 
 service of, 98, 99- 
 verbal, insufficient, 101, 102. 
 
 want of, 99. '03-' o6- 
 
 when no bar, 89. 
 
 "PACKING,' «r r I \ct 8. 
 
 meaning of term, mW. C. I. Act, ». 
 
 reference to, m 
 
 W. C. I. Act, 8, 24. 
 
INDEX, 
 
 •59 
 
 PARTICULARS, 
 
 of demand under W. C. I. Act to be served, io6, 107. 
 
 parties beneficially entitled under Lord Campbells Act to be served, 
 •43. >44- 
 PENALTY, 
 
 incurred by employer, to be deducted from compensation, 95-97. 
 
 PERSONAL REPRESENTATIVES, 
 
 deceased person's, right to sue under Lord Campbell's Act, 132, 133. 
 workman's, right to sue under W. C. I. Act, 57. 
 
 PLANT. See Machinery. 
 
 borrowed, without employer's consent, 40, 43. 
 defective, liability for, 25, 40-41. 
 
 to contractor's servants, 57-61. 
 hired, detects in, 41. 
 horse, is, 39. 
 in course of erection, 43. 
 meaning of term, 39. 
 
 must be employer's, or used with his authority, 43. 
 omission of statutory requirements regarding, 37, 41. 
 
 fellow servant to use appliances, 42. 
 saw unguarded, not defective, 41, 42. 
 scaffolding erected by contractor, defect in, 35, 42. 
 
 PREMISES. S-^fWAVs. 
 defects in, 25, 42. 
 
 RAILWAY ACT. See Railways. 
 
 provisions of, as to packing frogs, 65. 
 
 spaces between rails, 66, 67. 
 RAILWAY SERVANT. i>^ Railways. 
 
 entitled to benefit of W. C. I. Act, 7, 18. 
 
 injury to. by negligence of fellow servant, 26, 53-56. 
 
 manual labor, whether he must be engaged in, 18, 
 
 meaning of term, in W. C. I. Act, 8. 
 
i6o 
 
 INDEX. 
 
 »>^ 
 
 'ill 
 
 I 
 
 '! 
 
 I 
 J 
 
 RAILWAYS. 
 
 bridges of, too low, injuries arising from, 61, 63. 
 
 provisions of Railway Act as to height, 64. 
 charge of engines of, meaning of, 55. 
 engines of, negligence of persons in charge of, 54, 55. 
 
 stationary, whether within W.C.I. Act, 54, 55. 
 frogs, packing of, 62, 65, 66. 
 
 omission of, a defect under W.C.I. Act, 62, 66. 
 guard rails, omission to pack, 62, 66. 
 negligence, essential to right of action against, 55, 56. 
 omission of, to p.ick frogs, etc, 52, 65, 66. 
 overhead structures, too low, injuries arising from, 6i , 63. 
 
 provisions of Railway Act as to, 64. 
 packing frogs, and spaces between rails, omission of, 62, 66. 
 
 provisions of Railway Act as to, 65, 66. 
 points, meaning of, 56. 
 
 negligence of persons in charge of, 55. 
 servants of, entitled to benefit of W.C.I. Act, 8, r8, 24. 
 
 rp- y sue for injuries caused by fellow servants, 24, 25. 
 negligence of, 53, 54, 55. 
 
 whether they must be engaged in manual labor, 18, 24. 
 signal, meaning of, 56. 
 
 negligence of persons in charge of, 55. 
 train, negligence of persons in charge of, 55. 
 \ hen within W.C.I. Act, 54. 
 wing rails, omission to pack, 62, 66. 
 
 REVIVOR. 
 
 of action of workman under W.C.I. Act, 86, 87. 
 
 by parties entitled under Lord Campbell's Act, 127. 
 
 RULES. 
 
 approval of by Lieutenant Governor, effect of, 51, 68, 80. 
 Legislature, effect of, 68, 80. 
 
 defective, or improper, injury arising fiom, 51, 80, 81. 
 
 know^n to workmen, efff't of, 68, 69, 81 
 liability of employer for, 80, 81, 82. 
 
 82. 
 
INDEX. 
 
 l6l 
 
 SCAFFOLDING. See Plant— Wavs. 
 
 defect in, when erected by contractor, 35, 42. 
 
 SERVANT. See Compensation— EMPLOYf:R— Master— Workman. 
 common employment, defence of, to action by, 3, 4, 5, 6. 
 common law remedy of, unaffected by VV.C. I. Act, 17, 18. 
 contractor, whether a, ii, \2. 
 dismissal of, power of, 11. 
 domestic, not within W.C.I. Act, 14. 
 employing others, effect of, 11, 12. 
 fellow, negligence of, master's liability for, 3, ^^, 37. 
 husbandry, entitled to benefit of W.C.I. Act, 7, 19, 20. 
 master, and, test of relationship, 11. 
 
 liability of, for acts of, 16, 17. 
 menial, not within W.C.I. Act, 7, 14. 
 
 who are, J 1, 15. 
 railway, who is, 8. See Railway Servant. 
 temporary employment of, by another master, 5, 6, 12, 13. 
 volenti non fit injuria, when a defence to action by, 73. 
 voluntary assumption of risk, 40. 
 
 SERVANT IN HUSBANDRY. 
 
 entitled to benefit of W.C.I. Act, 7, 19. 
 
 meaning of, 19. 
 
 performing other duties, 19, 20. 
 
 SERVICE. 
 
 of notice of injury under W.C.I. Act, 98, 99. 
 
 particulars of demand under W.C.I. Act, 106, 107. 
 
 persons entitled under Lord Campbell's 
 Act, 143, 144. 
 SHIP. 
 
 bulwarks, negligence of captain to guard opening in, 42, 48. 
 
 STREET RAILWAY. 
 
 servant of, entitled to benefit of W.C.I. Act. 8, 18. 
 
 SUPERINTENDENCE, 
 
 meaning of in W.C.I. Act, 6-9. 
 
 person having, negligence of, 25, 44-46. 
 
1 63 
 
 INDEX. 
 
 > 
 
 f 
 
 I 
 
 'ill 
 
 SUPERINTENDENT, 
 
 manual labour, effect of his performing, 8, 9. 
 negligence of, liability of employer for, 25, 44-46. 
 
 TIME, 
 
 computation of, under VV. C.I. Act, 113, 119-121. 
 for bringing action under W.C.I. Act, Sq-Qt. 
 
 Lord Campbell's Act, 141, 142, 144-146. 
 serving notice of injury under W.C.I. Act, 89, 90, 102. 
 
 VOLENTI NON FIT INJURIA, 
 
 doctrine oi " common employment," based on, 4. 
 when applicable as a defence under W.C.I. Act, 73. 
 
 WALL, 
 
 omitting to shore up, when dangerous, 30, 31. 
 
 WAYS. See Buildings— Works. 
 
 defects in, liability of employer for, 25, 28-33. 
 
 to contractor's servants, 57, 58. 
 due to negligence of contractors, 34, 35. 
 must be due to negligence, 67-68. 
 
 employer's, or used wilh his authority, 43. 
 See Dkfects. 
 drain, falling in, 34. 
 holes in premises, 29, 32-34. 
 
 incomplete, whether within W.C.I. Act, 31, 32, 34, 43. 
 meaning of, 31. 
 omitting to shore up dangerous walls, 30. 
 
 sides of drain, 34. 
 unfenced holes, 29, 32-34. 
 what are within W.C.I. Act, 31-33. 
 
 WING RAIL. See Packing. 
 meaning of, 67. 
 omission to pack, 62, 66. 
 
 WORDS. See Interpretation ok Words. 
 
INDEX. 
 
 163 
 
 ^4-146. 
 
 i7, 58- 
 
 43- 
 
 WORKMAN. See By-Laws - Compensation - Employer- Master - 
 Railway Servant— Servant. 
 accident, inevitable, employer not liable for, 42. 
 accord and satisfaction, when a defence to action by, 92, 93. 
 bearer of orders to, negligence of, 50. 
 child of, right to compensation, 86, 88. 
 
 Common Law remedy of, unaffected by W.C.L .Act, 17, 18. 
 compensation for injuries, right to, under W.C.L Act, 26, 57. 
 
 limit of, under W.C.L Act, 83, 84. 
 conforming to orders, when injured by, 25, 48, 49. 
 continuance in service, after knowledge of defect, 69, 73, 79, 80, 8^ 
 contract in bar of action under W.C.L Act, 92, 93. 
 
 consideration required, 92, 93 
 contractor, how far within, W.C.L Act, 11, 12, 16. 
 contributory negligence of, 79, 80. 
 death of, pendente lite, 86, 87, 127, 128. 
 
 compensation recoverable for, by representatives, 26. 
 right of representatives to sue on, 26 
 defects in ways, etc., see Defects. 
 
 knowledge of, effect of, 68, 69, 81, 82. 
 discretion as to obeying orders, effect of, 50. 
 duty of, to notify employer of defects in ways, etc., 68, 69. 
 
 neglect of, 81.83. 
 employer s duty to, 70-74. 
 
 liability for injuries to, 27. 
 
 limit of, under W.C.L .Act, 83, 84. 
 estate of, compensation for injury to, is not within W.C.L Act, 26, 27 
 fellow servant, causing injury, 49. ' ' 
 
 negligence of, employer when liable for, 24, 25, 27. 
 hnsband of, right to compensation, 86, 88. 
 injury to, from defects in ways, etc., 25, 27-33. 
 
 by-laws, 26. 
 rules, 'J. 
 negligence of superintendent, 55, 44-47. 
 
 persons giving orders, 25, 48. 
 estate of, not within W.C.L .Act, 26, 27. 
 juvenile, duty of master as to, 75, 76. 
 
164 
 
 INDEX. 
 
 ^ 
 
 ,> 
 
 If 
 
 Id 
 
 ili 
 
 \ 
 
 WORKMAN, 
 
 knowledg'e of defects in ways, etc., effect of, 68, 69, 81, 82. 
 
 leg'al personal representatives of, rights of under W. C. I. Act, 57. 
 
 master's duty to, 70-74. 
 
 meaning of term, in W. C. I. Act, 7, 14, 20. 
 
 negligence of superintendent, injury due to, 44-47. 
 
 person under whose orders he acts, 48. 
 neglecting to inform employer of defects, 81-83. 
 orders of foreman, conforming to, 48-50. 
 parent of, right of, to compensation, 86, 88. 
 ivife of, right of, to compensation, 86, 88. 
 volenti nonfit injuria when applicable to, 73. 
 
 WORKMEN'S COMPENSATION FOR I.NJURIES ACT. 
 passim. 
 application of, 6. 
 
 effect of, on defence of "common employment," 3, 4. 
 prior legislation, 2. 
 
 railways under Dominion control, applies to, 6. 
 Provincial control, applies to, 6. 
 repeal of forp-'t'r Acts, 122. 
 saving clause in, 122. 
 
 See Indkx 
 
 WORKS. See Defect.s— Wavs. 
 
 defects in, liability of employer for, 25, 28-33, .I.S- 
 
 to servants of contractor, 57-61. 
 user after knowledge of, 31. 
 incomplete, whether within W. C. I. Act, 43. 
 in course of erection, whether within, 43. 
 meaning of term, 34. 
 
Act, 57- 
 
 See INDKX 
 
 actor, 57-61. 
 
 ADDENDA 
 
 p. I, lines, add ''Donovan v. The Laing Wharton &' Down 
 Construction Syndicate, 94 L.T.Jour. 436." 
 
 p. 21, last line but one of first paragraph, for ''Surrey Coal 
 Dock Cor read "Surrey Commercial Dock Co." 
 
 p. 28, top of page, side note, for " section i " read "section 3." 
 
 p. 33, fourth line, "after 16 Nov. 1892," add "affirmed by Divi- 
 sional Court (Boyd, C, and Robertson,].) 29 C.L.J. 201." 
 
 p. 73, third line from bottom, add " Webster v. Foley, 29 C. 
 L.J. 159.- 
 
 p. 79, eighth line in first paragraph, after "east. 60" add "Lang 
 V. House to House Electric Lighting Co. , 94 L.T.Jour. 441.' 
 
 p. 113, to the end of third paragraph, add "except where no 
 application for the appointment of assessors has been 
 made : see s. s. 9, ante p. 1 1 1 . "