c 
 
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 CED 
 
 SCHOOL OF LAW 
 LIBRARY
 
 WOKKMEFS COMPENSATION APPEALS 
 1910 AND 1911
 
 FOURTH EDITION, 1911. 786 pages, royal 8vo. 
 
 Price J51 5s. net. 
 
 DAWBARN'S EMPLOYERS' LIABILITY AT COMMON 
 
 LAW, UNDER THE EMPLOYERS' LIABILITY ACT, AND 
 
 THE WORKMEN'S COMPENSATION ACTS. 
 
 This is a most exhaustive work on the subject. In an appendix 
 are given additional Forms, based on those of an actual case fought 
 right through to the House of Lords, and the taxed Bill of Costs 
 in connection with it. Other Appendices contain all the Rules, 
 Forms and Fees, and Lord Campbell's Acts and other Acts. 
 
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 NAME 
 
 ADDRESS
 
 WOBKMEN'S COMPENSATION 
 APPEALS 
 
 191O-1911. 
 
 A CEITICAL COMMENTARY ON THE WOEZMEN'S 
 
 COMPENSATION CASE LAW FOE THE PAST LEGAL 
 
 YEAE AND BEOUGHT UP TO DATE TO THE TIME 
 
 OF PUBLICATION. 
 
 BY 
 
 C. Y. C. DAWBARN, B.A., 
 
 * 
 
 OF THE INNER TEMPLE AND NORTHERN CIRCCJ1T, BARRISTER-AT-LAW, AUTHOR OF 
 
 "EMPLOYERS' LIABILITY TO THEIR SERVANTS AT COMMON LA.W AND 
 
 UNDER THE EMPLOYERS' LIABILITY ACT, 1880, AND THE 
 
 WORKMEN'S COMPENSATION ACT, 1906.' 
 
 LONDON : 
 
 SWEET AND MAXWELL, LIMITED, 
 3, CHANCERY LANE. 
 
 1912.
 
 LONDON 
 
 28 06^1957 
 
 W 
 
 INSTITU 1 (Jfi&OVANCED 
 LEGAL 
 
 W38 
 

 
 PREFACE. 
 
 THE object of this volume is to deal with and consider all the 
 material decisions on the Workmen's Compensation Act given in 
 our higher Courts since the Michaelmas Term of 1910. During the 
 past legal year over one hundred and thirty new cases have found 
 their way into our reports and in addition during the past month 
 or two the Court of Appeal has disposed of a further list of 
 another seventy. With output so prodigious, noting up becomes 
 impossible and text-books are almost out of date before well on 
 the market. Nor does there seem any promise of much change 
 in the future. With over four million pounds paid in a year in 
 compensation and mostly in small sums and with the cost of 
 appealing reduced to a minimum, there can hardly ever be a 
 cessation of cases. Then how is this ever-accumulating mass of 
 material to be best dealt with ? 
 
 To this question it is trusted that the following pages will prove 
 the most satisfactory answer. In them, as far as possible, I have 
 tried to bring the law up to date, including decisions in many 
 cases as yet unreported. For a number of these, which I was 
 unable to hear personally, I desire to express my obligation and 
 thanks to my friend Mr. Thesiger for kindly furnishing me with a 
 note of them. As regards the cases, no doubt many simply dupli- 
 cate others already in the books and which might well be passed 
 without reporting, but amongst them are some of first importance. 
 Such is that of The Calico Printers' Association v. HigJwtm, where 
 the redemption of weekly payments was dealt with by the Court 
 in the most masterly way. In this case it was a pleasure to listen 
 to judges who were highly technical, but technical not to kill but 
 to make the Act work in the spirit as well as in the letter. We 
 wish some principles as clear could be laid down as to how
 
 vi Preface. 
 
 unexplained deaths caused by accident should be regarded. At 
 present the cases are most unsatisfactory, and our highest tribunal 
 seems to regard it as impossible to give any guidance as to how 
 inference from fact is to be distinguished in many instances from 
 mere guessing. This is the more unfortunate as it is in these 
 very cases on the line where the difficulty arises. If the fact may 
 be inferred, liability follows, but otherwise if it can only be guessed 
 at, and this even if the guessing fall little short of absolute convic- 
 tion. And can no line be drawn? Let us suppose that it is 
 material to prove that a window was closed when a certain army 
 corps was passing by. If thirty successive officers each spoke to 
 such fact we should regard it as proved. So, if every fifth one 
 had been unobservant we should be quite ready to fill in the gap 
 by inference and still to take it as proved that it was closed the 
 whole time. So we would equally infer it was closed, though not 
 so readily, if only every fourth or even every tenth officer had 
 seen it. And finally, though perhaps with some hesitation, we 
 might still infer it if only one officer had noticed it, though as the 
 evidence grew weaker we should have more and more regard to 
 the surrounding circumstances with the resulting probabilities. 
 But had no one seen that window closed, then whatever the 
 probabilities it would only be guessing to surmise such was the 
 fact. Thus it would seem that where any evidence is given it 
 should be weighed and considered in these cases as in all other 
 cases. All evidence is a question of degree, and in principle there 
 is no difference between a scintilla of evidence and abundant 
 evidence. If there is evidence the arbitrator should make his 
 award on that evidence, and it is only when there is none that it 
 would be guessing for him to decide one way more than another. 
 As regards liability to deserted wives the battle between the 
 Court of Appeal and the House of Lords may now be taken 
 as ended by the case of Keeling v. New Monckton Collieries. It 
 has been hard fought. The Court of Appeal has resolutely held 
 to its opinion, dependency is in law, whilst the Lords have been 
 as insistent it is in fact. The last word being with the Lords 
 the victory has been with them as well. For ourselves it would
 
 Preface. vii 
 
 seeni deplorable that an employer should be made liable to 
 provide for a wife whom her husband in his lifetime has entirely 
 neglected. 
 
 A still more important matter, that of the compensation to be 
 paid in the case of partial dependency, has now been put on a 
 sounder basis by the decision in The Tamworth Colliery Co. v. 
 Hall, which practically decides a rare and happy conclusion 
 that for once the Act means what it says. 
 
 Then another great question that has been much discussed is 
 what is the meaning to be given to the phrase " able to earn " 
 when fixing the weekly payment in the case of partial incapacity. 
 But in this, as in many other matters under this Act, it is far 
 easier to state the law than to apply it. 
 
 So at the present moment it remains open what agreement 
 employers should make to avoid any question under sect. 1 (3) 
 being left outstanding with the consequent risk of arbitration 
 proceedings being forced upon them with their attendant worry 
 and expense. The point came before the Court of Appeal, but 
 was left undecided, as the matter went off on a side issue. 
 Perhaps it is as well, for the question is so far-reaching that it is 
 desirable it should be fully argued in a test case rather than be 
 summarily dealt with in a somewhat unimportant appeal. 
 
 Here we might mention other cases, but as the one all- 
 important case to the practitioner is the one he wants we will 
 now leave the subject, trusting we have put him in the best way 
 of finding exactly what he requires with the least possible 
 trouble and in the least possible time. 
 
 C. Y. C. DAWBABN. 
 
 5, HARRINGTON STREET, 
 
 LIVERPOOL. 
 1st January, 1912.
 
 TABLE OF CASES. 
 
 PAGE 
 
 ABKATH v. N. E. Ey., 1 Q. B. D. 456 106 
 
 Amys v. Barton, [1911] W. N. 205 ; 28 T. L. E. 29 . . . . 105 
 Andrew v. Failsworth, [1904] 2 K. B. 32 ; 73 L. J. K. B. 510 . 14, 15 
 
 Anglo- Australian S. N. Co. v. Eichards, 4 B. 247 91 
 
 Ashley v. Lilleshall Co., Ltd 22 
 
 Astley v. Evans, [1911] 1 K B. 1036; 4 B. 209, 319 . . . .10 
 
 BABCOCK and Wilcox v. Young, [1911] S. C. 406 ; 4 B. 367 . . . 76 
 Ball v. Hunt, [1911] 1 K. B. 1048 ; 80 L. J. K B. 655 ; 4 B. 225 . . 82 
 
 Barnabas v. Bersham Colliery Co., 4 B. 119 19, 22 
 
 Barnes v. Nunnery Colliery Co., 4 B. 43 16 
 
 Barton v. Scott and Hodgson, 4 B. 15 103 
 
 Bates-Smith v. General Motor Cab Co., [1911] A. C. 188^ 4 B. 249 . 61 
 Beech v. Bradford Corporation, 4 B. 236 . . . . . 85, 113 
 Bender v. " Zent " (Owners of), [1909] 2 K. B. 41 ; 78 L. J. K B. 
 
 533 ; 2 B. 22 6, 7 
 
 Bevan v. Energlyn Colliery, [1911] W. N. 206 ; 28 T. L. E. 27 . . 78 
 
 Braithwaite v. Kirk 97 
 
 Brandy v. " Eaphael " (Owners of), 80 L. J. K. B. 217 ; [1911] 1 K B. 
 
 376 ; 4 B. 307 . . 55, 76 
 
 Briggs v. Mitchell, 4 B. 400 67 
 
 Browne v. Kidman, 4 B. 199 21 
 
 Burgess v. Jewell, 4 B. 145 81 
 
 Burrell v. Holloway Bros., 4 B. 239 36 
 
 CALICO Printers' Association v. Higham, [1911] W. N. 221 . . . 98 
 Cardiff Corporation v. Hall, 80 L. J. K. B. 644; [1911] 1 K. B. 1009; 
 
 4 B. 159 86, 90, 91 
 
 Carolan v. Harrington, 27 T. L. E. 486 ; 4 B. 253 115 
 
 Clarke v. Gas Light and Coke Co., 21 T. L. E. 184 ... 87, 91 
 Clover and Clayton v. Hughes, 79 L. J. K. B. 470 ; [1910] A. C. 242 ; 
 
 3 B. 275 3, 18, 20, 21 
 
 Cole v. Evans, 4 B. 138 16 
 
 Conway v. Pumpherston Oil Co., [1911] 1 S. L. T. 440 ; 4 B. 392 . 17 
 Cory Bros. v. Hughes, 80 L. J. K. B. 1307 ; 27 T. L. E. 498 ; 4 B. 291 . 83 
 
 Coulsom v. The Worshipful Company of Drapers 107 
 
 Cranfield v. Ansell, 4 B. 57 96 
 
 Cremins v. Guest, [1908] 1 K. B. 469 ; 77 L. J. K. B. 326 . . . 27 
 
 Cronin v. Silver, 4 B. 221 16 
 
 Curtis v. Talbot 17 
 
 DAVID v. Windsor Steam Coal Co., 4 B. 177 82 
 
 Davies v. Gillespie, 28 T. L. E. 6 15
 
 x Table oj Cases. 
 
 PAGE 
 
 Devitt v. Bainbridge, 2 B. 383 94 
 
 Dobby v. Pease, 2 B. 370 86 
 
 Dothie v. Macandrew, [1908] 1 K. B. 803 ; 77 L. J. K. B. 388 ; 1 B. 
 
 308 . . . 60 
 
 Dunnigan v. Cavan, 48 S. L. E. 459 4 
 
 EATON v. Evans 37 
 
 Eke v. Hart-Dyke, [1910] 2 K. B. 677 ; SO L. J. K. B. 90 ; 3 B. 482 . 3 
 Emmerson v. Donkin, 4 B. 74 . . . . . . . .81 
 
 FARMER v. Stafford Allen & Sons, 4 B. 223 21 
 
 Fletcher (Hewitt) v. " Duchess " (Owners of). See Hewitt v . D. 
 
 Fox v. Battersea Borough Council, 4 B. 261 . . . . 33,104,110 
 
 Frogbrook v. Potts, 4 B. 266 112 
 
 Fry v. The Mayor of Cheltenham, [1911] W. N. 199; 28 T. L. E. 16.. .37, 108 
 Furnival v. Johnson Iron and Steel Co. 9 
 
 GILBEY v. G. W. Ey., 102 L. T. 202 105 
 
 Gilmour v. Dorman, Long & Co., 4 B. 279 27 
 
 Groves v. Burroughs and Watts, 4 B. 1S5 22 
 
 Guest, Keen and Nettlefolds v. Winsper, 4 B. 289 . . . .90 
 
 HALL v. Tamworth Colliery Co., 80 L. J. K. B. 304 ; [1911] 1 K B. 
 
 341 ; 4 B. 107, 313, H. L 71 
 
 Harding v. Brynddu Colliery Co., 27 T. L. E. 500 ; 4 B. 269 . . 16 
 
 v. Eoyal Mail S. P. Co., 4 B. 59 94 
 
 Hawkes v. Cole, 3 B. 163 29 
 
 Hawkins v. Powells Tillery Steam Coal Co., 80 L. J. K. B. 769 ; 
 
 [1911] 1 K. B. 988 ; 4 B. 178 22 
 
 Henricksen v. " Swanhilda " (Owners of), 4 B. 233 . . . . 115 
 Hewitt v. " Duchess " (Owners of), 79 L. J. K B. 867 ; [1910] 1 K B. 
 
 772; 4 B. 317 24, 25 
 
 Higgins v. Poulsom 32 
 
 Hoare v. Arding and Hobbs 37 
 
 Hodgson v. West Stanley Colliery Owners, [1910] A. C. 229; 79 
 
 L. J. K. B. 356 ; 3 B. 392 64 
 
 Homer v. Gough (1911), L. T. News. 6 43, 103 
 
 Honor v. Painter, 4 B. 188 20 
 
 Horn v. Admiralty (Lords Commissioners), 80 L. J. K. B. 278; [1911] 
 
 1 K B. 24 ; 4 B. 1 40 
 
 Hosegood & Sons v. Wilson, 80 L. J. K. B. 519 ; [1911] 1 K B. 30 ; 
 
 4 B. 49 97, 101 
 
 Howarth v. Samuelson, 4 B. 287 102, 103 
 
 Howell v. Bradford, 104 L. T. 433 ; 4 B. 203 28, 63 
 
 Huckle v. London County Council, 4 B. 113 44 
 
 Hughes v. Postlethwaite, 4 B. 105 60 
 
 Humphreys v. City of London Electric Lighting Co., 4 B. 275 . . 78 
 
 ISMAY, Imrie & Co. v. Williamson, [1908] A. C. 437 ; 77 L. J. P. C. 
 
 107 4 
 
 JAMES v. Ocean Coal Co., [1904] 2 K B. 213 79 
 
 Jenkins v. Standard Colliery Co. , 28 T. L. E. 7 . . 9
 
 Table of Cases. xi 
 
 PAGE 
 
 Jenkinson v. Harrison, 4 B. 194 15 
 
 Jessop v. Maclay 107 
 
 Jobson v. Cory & Sons, 4 B. 284 63 
 
 Johnson v. Wootton, 27 T. L. E. 487 ; 4 B. 258 38 
 
 Jones v. Tirdoiikin Colliery , 13 
 
 KAREMAKEB v. " Corsican " (Owners of), 4 B. 295 .... 3 
 Kearon v. Kearon, 45 Ir. L. T. 96 ; 4 B. 435 . . . . . 12 
 
 Keeling v. New Monckton Collieries, 80 L. J. K. B. 539, 1205, H. L. ; 
 
 [1911] 1 K. B. 250; 4 B. 49 63,65 
 
 Kelly v. Auchenlea Coal Co., 48 S. L. E. 768 2 
 
 v. Kerry County Council, 1 B. W. C. C. 194 . . . . 14 
 
 Kempeon v. " Moss Eose " (Owners of), 4 B. 101 76 
 
 Kerr v. Baird, 48 S. L. E. 646 17 
 
 Keyser v. Burdick, 4 B. 87 12 
 
 Kitchenham v. " Johannesburg " (Owners of), 80 L. J. K. B. 313 ; 
 
 [1911] 1 K. B. 523 ; 4 B. 91, 311, H. L 24, 25, 26 
 
 Knott v. Tingle, Jacobs & Co., 4 B. 55 60, 76 
 
 Kyle v. M'Gintys, 48 S. L. E. 474 34 
 
 LANKESTEE v. Miller, Hetherington (third party), 4 B. 80 . . . 45 
 
 Leach v. Hickson, 4 B. 153 36 
 
 v. Oakley, Street & Co., 4 B. 93 26 
 
 Lee v. " Bessie " (Owners of), [1911] W. N. 222 . . . 66, 104, 106 
 Lees and Sykes (third parties) v. Dunkerley Bros., 80 L. J. K. B. 135 ; 
 
 [1911] S. C. 5; 4 B. 115 46 
 
 L. & N. W. Ey. v. Taylor, 4.B. 11 85, 97, 111 
 
 Lunt v. Sutton Heath and Lea Green Collieries, 4 B. 219 . . .110 
 
 M'CAETHY v. Stapleton-Bretherton, 4 B. 281 110 
 
 M'Clean v. Moss Bay Iron Co., [1909] 2 K. B. 521 ; 78 L. J. K. B. 849 64 
 M'Dermott v. " Tintoretto" (Owners of), 80 L. J. K. B. 161; [1911] 
 
 A. C. 35 ; 4 B. 123 49, 77 
 
 M'Dougall v. M'Dougall, [1911] S. C. 426; 4 B. 373 . . . .67 
 
 M'Ghee v. Summerlee Iron Co., 4 B. 424 105 
 
 MacGillivray v. Institute for Blind, 48 S. L. E. 811 . . . . 61 
 
 Mackinnon v. Miller, 46 S. L. E. 299 5 
 
 McLauchlanv. Anderson, [1911] S. C. 529; 4 B. 376 . ." .12 
 
 McNamara v. Burtt, 4 B. 151 91 
 
 McNeice v. Singer Sewing Machine Co., [1911] S. C. 12 ; 4 B. 351 . 13 
 
 Main Colliery v. Davies, [1900] A. C. 358 72 
 
 Marriott v. Brett and Beney 114 
 
 Marshall v. " Wild Eose " (Owners of), 79 L. J. K. B. 912 ; [1910] 
 
 A. C. 486 ; 2 B. 78 6 
 
 Mawdsley v. West Leigh 16 
 
 Maundrell v. Dunkeston Collieries, 4 B. 76 . . . . . .111 
 
 Michell v. Glamorgan Coal Co., 23 T. L. E. 588 9, 10 
 
 Molloy v. South Wales Anthracite Colliery Co., 4 B. 65 . . . 22 
 Moore v. Manchester Liners, Ltd., 79 L. J. K B. 1175 ; [1910] A. C. 498 ; 
 
 3 B. 527 . . 24
 
 xii Table of Cases. 
 
 PAGE 
 
 Moore v. Naval Collieries 53 
 
 Morgan v. Dixon, [1911] S. C.403 ; 4 B. 363 ; [1911] W. N. 220, H. L. ; 
 
 28 T. L. E. 64 94 
 
 v. " Zenaida " (Owners of), 25 T. L. E. 446 ; 2 B. 19 . . 3 
 
 Mortimer v. Secretan, 78 L. J. K B. 521 ; [1909] 2 K. B. 77 ; 2 B. 446...113 
 
 Moss & Co. v. Akers, 4 B. 294 82 
 
 NAYLOR v. Musgrave Spinning Co., 4 B. 286 15 
 
 Newhouse v. Johnson 74 
 
 Noden v. Galloway, [1911] W. N. 192; 28 T. L. E. 5 . . . . 2 
 
 OSBORNE v. Vickers, Sons, and Maxim, [1900] 2 Q. B. 91 . . . 94 
 Osmond v. Campbell and Harrison, [1905] 2 K B. 852 . . .71 
 
 PANAGOTIS v. " Pontiac " (Owners of), [1911] W. N. 221 ; 28 T. L. E. 
 
 63 48, 57, 103 
 
 Parker v. Pont 27 
 
 Penn v. Spiers and Pond, [1908] 1 K B. 766 ; 77 L. J. K. B. 542 . 60 
 
 Phillips v. Vickers, Son and Maxim, [1911] W. N. 192 ... Ill 
 
 v. Williams, 4 B. 143 23 
 
 Pierce v. Provident Clothing, &c., Co., 80 L. J. K. B. 831 ; [1911] 
 
 1 K B. 997 ; 4 B. 242 12 
 
 Polled v. G. N. Ey 67 
 
 Priestly v. Fowler, 3 M. & W. 1 ; 7 L. J. Ex. 42 46 
 
 Proctor v. Eobinson, 3 B. 41 ; 80 L. J. K. B. 641 ; [1911] 1 K. B. 1004 87 
 
 QUIN v. Flynn, 3 B. 594 96 
 
 EADCLIFFE v. Pacific Steam Navigation Co., [1910] 1 K. B. 685 ; 79 96 
 
 L. J. K B. 429 ; 3 B. 185 81, 89 
 
 Eeyners v. Makin, 4 B. 267 81 
 
 Eichardson v. " Avonmore " (Owners of) 8 
 
 Eiley v. Holland, 80 L. J. K B. 814 ; [1911] 1 K. B. 1029 ; 4 B. 155 . 23 
 
 Eoles v. Pascall, 80 L. J. K. B. 728 ; [1911] 1 K. B. 982 ; 4 B. 148 . 38 
 
 Eose v. Morrison, 4 B. 277 10 
 
 SAPCOTE v. Hancox, 4 B. 184 96 
 
 " Segura " (Owners of) v. Blampied, 4 B. 192 113 
 
 Senior v. Fountain, [1907] 2 K. B. 563 63 
 
 Shore v. " Hyrcania " (Owners of ), 4 B. 207 110 
 
 Skailes v. Blue Anchor Line, [1911] 1KB. 360 ; 80 L. J. K B. 442 ; 
 
 4 B. 16 60, 76 
 
 Smith v. Morrison 18 
 
 S. E. & C. Ey. v. Ewell 107 
 
 Stevens v. Insoles, [1911] W. N. 205 37 
 
 " Swansea Vale " (Owners of) v. Eice, 27 T. L. E. 440 ; 4 B. 298 . . 6 
 
 TAMTVORTH Colliery Co. v. Hall, 4 B. 107, 313 71 
 
 Thomas v. Fairbairn, Lawson & Co., 4 B. 195 90 
 
 Thomson v. Flemington Coal Co., 48 S. L. E. 740 .... 10 
 
 Trodden v. McLennard, 4 B. 190 20
 
 Table of Cases. xiii 
 
 PAGE 
 
 Turner v. Bell, 4 B. 63 . . . . . . . . 94, 106, 112 
 
 v. Miller, 3 B. 305 . . . '. 74 
 
 VICTOK Mills v. Shackleton, [1911] W. N. 197 100 
 
 WALTERS v. Staveley Coal and Iron Co., 55 S. J. 579 ; 4 B. 303 . . 26 
 
 Warby v. Plaistowe, 4 B. 67 94 
 
 Ward v. Miles, 4 B. 182 91 
 
 Warners Couchman, 80 L. J. K. B. 526; [1911] 1 K. B. 351 ; 4 
 
 B. 32; [1911] W. N. 220, H. L 3,13,15 
 
 Weighill v. South Heaton Coal Co., 4 B. 141 . . . . 17, 30 
 
 White v. Harris, 4 B. 39 91 
 
 Wood v. Davies 9 
 
 Wright v. Kerregan, 45 Ir. L. T. 82 105
 
 WOBKMEN'S COMPENSATION APPEALS. 
 
 ARRANGEMENT OF SECTIONS OF ACT. 
 
 Section. 
 
 1. Liability of employers to workmen for injuries. 
 
 2. Time for taking proceedings. 
 
 3. Contracting out. 
 
 4. Sub-contracting. 
 
 5. Provision as to cases of bankruptcy of employer. 
 
 6. Remedies both against employer and stranger. 
 
 7. Application of Act to seamen. 
 
 8. Application of Act to industrial diseases. 
 
 9. Application to workmen in employment of Crown. 
 
 10. Appointment and remuneration of medical referees and arbitrators. 
 
 11. Detention of ships. 
 
 12. Eeturns as to compensation. 
 
 13. Definitions. 
 
 14. Special provisions as to Scotland. 
 
 15. Provisions as to existing contracts and schemes. 
 
 16. Commencement and repeal. 
 
 17. Short title. 
 SCHEDULES. 
 
 W.C.A.
 
 WOKKMEN'S COMPENSATION ACT, 1906. 
 
 [6 EDW. 7. CH. 58.] 
 
 An Act to consolidate and amend the Law with respect to Com- 
 pensation to Workmen for Injuries suffered in the course of 
 their Employment. 
 
 [21st December, 1906.] 
 
 Be it enacted by the King's most Excellent Majesty, by and 
 with the advice and consent of the Lords Spiritual and Temporal, 
 and Commons, in this present Parliament assembled, and by the 
 authority of the same, as follows : 
 
 SECTION 1. 
 LIABILITY OF EMPLOYEES TO WORKMEN FOE INJURIES. 
 
 SECT. l. 1. (1) If in any employment personal injury by accident 
 
 Liability of arising out of and in the course of the employment is caused to 
 employers to a \vorkman, his employer shall, subject as herein-after mentioned, 
 injuries' 1 J ^ e l^ble to pay compensation in accordance with the First 
 Schedule to this Act. 
 
 SECT. 1 (1). 
 Any employ- 
 ment. 
 
 SECT. I (1) 
 Accident. 
 
 ANY EMPLOYMENT. New Contract of Service. 
 
 A rather important point as to the employment referred to was 
 decided in the case of Noden v. Galloways, W. N., 1911, 192. A 
 man injured his finger in 1902 which prevented his working as 
 a riveter. His employers gave him light work as a caulker. 
 This he was able to do satisfactorily until 1910, when a pneumatic 
 hammer was introduced, the use of which affected his injured 
 hand. The Court of Appeal held that there was a fresh contract 
 of service, and that the old accident was not an incident of the 
 new employment. 
 
 ACCIDENT. 
 
 In a Scotch case, Kelly v. Auchenlea Coal Co., 48 S. L. E. 768, 
 the meaning of accident was fully discussed, though one would 
 hardly have thought there was much need for it on the facts. A 
 miner in the course of his work fired a shot, which generated car- 
 bon monoxide, a most deadly poison, and then went to a distance.
 
 Workmen's Compensation Appeals. 
 
 He waited three minutes and then returned. The fumes, how- SECT. 1 (1). 
 ever, had not dispersed ; he inhaled them and they caused pneu- CC1 
 monia, which killed him . Most learned arguments were advanced 
 to prove that the man died from disease and not from accident, 
 but what seemed beyond discussion was that the man, not delibe- 
 rately, but accidentally, inhaled sufficient gas to kill himself. He 
 had before done something of the same sort and had suffered 
 from headache and nausea in consequence, but it was obvious 
 inhaling the amount he did was never intended, and his having 
 done so was a definite act at a definite time and in no way want- 
 ing in all the attributes that lawyers say pertain to an accident. 
 Since the great case of Clover and Clayton v. Hughes, [1910] 
 A. C. 242, which we will more fully refer to under arising out of, 
 the actual meaning of accident has only been involved in two 
 miscellaneous cases relating to frost bite, and in both of these 
 has been left undetermined, as the cases have each gone off on 
 another point, viz., that in neither did the accident, if an 
 accident, arise out of the employment. The first case, Warner v. 
 Couchman, [1911] 1 K B. 351, was that of a journeyman baker 
 whose hand was frost bitten when driving his master's cart and 
 delivering bread ; the second, that of Karemaker v. " Corsican " 
 (Owners of), 4 B. W. C. C. 295, was where a seaman suffered from 
 frost bite when at work on his ship. In the first case, Fletcher 
 Moulton, L.J., dissentient, was of opinion such frost bite was an 
 accident, and that it satisfied the test of a definite event at a 
 definite time, and in this respect was to be distinguished from the 
 case of Eke v. Hart Dyke, [1910] 2 K. B. 677, where a man 
 became ill through working in drains and was held not to have 
 been injured by accident. There are several cases where injuries 
 caused by excessive heat have been held to have been caused by 
 accident, and therefore the converse would seem to be logical 
 that injury caused by excessive cold should be equally regarded 
 an injury by accident. But in the cases relied on other elements 
 have been present than mere heat, and these have contributed 
 to bring the occurrence within the category of accidental, e.g., 
 Morgan v. " Zenaida" (Owners of), 25 T. L. E. 446, where a 
 seaman who complained of the heat was told to continue painting 
 
 12
 
 4 Workmen's Compensation Appeals. 
 
 SECT. 1 (l). in a particularly exposed position, and had sunstroke in con- 
 Accident, sequence, and Ismay v. Williamson, [1908] A. C. 437, where the 
 found fact on which this decision was given was " what killed 
 him was a heat stroke coming suddenly and unexpectedly upon 
 him while at work." We must note that in every case the law is 
 laid down on the basis of the facts as found by the arbitrator, and 
 not on what we might think they were from the fanciful account 
 of a mere descriptive reporter. As to both these cases, see 
 further under arising out of, etc. 
 
 SECT. 1 (1). 
 Accident. 
 
 Consequent Kesults due to Unreasonable Conduct. 
 
 The law as to such cases seems easier to state than to apply. 
 Whatever a man's condition and to whatever that condition is 
 due, a man must act reasonably, having regard to that condition. 
 A man has typhoid is he to eat a beefsteak ? Or bronchitis 
 is he to sleep in a damp bed ? The answer is No, and in each 
 case he must do all that he reasonably can to perfect his 
 recovery, and this whether his condition is due to accident or 
 other cause. If he does so act reasonably irrespective of whether 
 the result proves he acted for the best or not it is clear that the 
 final consequence is as much due to the accident as if it had at 
 once manifested itself. On the other hand, if he acts unreason- 
 ably, takes no care, the consequences are not due to the accident, 
 but his own folly. Of course the Court may find as a fact that 
 notwithstanding his want of care the same result would have 
 taken place even had he been reasonable and careful, and then the 
 accident may still be held the cause of consequences the most 
 remote. In Dunnigan v. Cavan, 48 S. L. E. 459, a man was 
 injured and taken to the hospital suffering from pneumonia. He 
 stayed there three days and then insisted on being taken home, 
 notwithstanding the doctor's warning that his so doing might 
 endanger his life. He persisted, with the result that he died two 
 days afterwards. The arbitrator found for the defendant. He 
 gave as his reason (if correctly reported) " that but for the accident 
 Samuel Dunnigan would not have died how and when he did die." 
 This was hardly the question, and on the appeal the Lord President 
 stated it more exactly. " The true question on the merits here
 
 Workmen's Compensation Appeals. 5 
 
 is whether the man died from the accident or from a new cause SECT. 1 (i). 
 
 which was introduced, viz., his own foolish action. . . . The CC1 
 
 Sheriff and medical referee had to face that question ; and it is 
 
 not an easy question. We cannot tell with certainty what would 
 
 have happened had the man not left his bed at the time when he 
 
 did, we cannot say absolutely either that he would have died or 
 
 that he would have recovered. . . . The Sheriff has found as a 
 
 fact that the death resulted from the injury, and looking at this 
 
 fact whether we would agree with him or not I have no doubt 
 
 there was evidence on which he was justified in coming to 
 
 the conclusion which he has reached." A similar point was 
 
 involved in Thorburn v. Bedlington Coal Co., decided on its own 
 
 particular facts. 
 
 "ARISING OUT OP AND IN THE COURSE OP." 
 
 So important are these words and so numerous the decisions SECT. 1 (1). 
 on them that for a proper understanding of recent cases it will Ansm s utof - 
 be well to state the principles generally involved. 
 
 A double condition is to be found in these words. The 
 applicant must prove both that the accident arose out of the 
 employment and in the course of the employment. The words 
 are used conjunctively, not disjunctively, and are not to be used 
 as meaning out of, that is to say, in the course of. The applicant 
 must prove some causal relation between the employment and the 
 accident, as well as the fact of his having been actually employed. 
 And further, the burden of proof lies on him to establish his case, 
 and if the evidence is as consistent with one view of the facts as 
 another, or if no evidence be given, he does not discharge the 
 onus and cannot recover. But in the vast majority of the dis- 
 puted cases the facts to be proved are not proved directly, but are 
 only deduced from other facts proved in the case. This is well 
 illustrated by a quotation from "Henry VI." by the Lord 
 President in Mackinnon v. Miller, 46 S. L. R. 299 : 
 
 " "Who finds the heifer dead and bleeding fresh, 
 And sees fast by a butcher with an axe, 
 But will suspect 'twas he that made the slaughter."
 
 6 Workmen's Compensation Appeals. 
 
 SECT, l (1). Inference from Facts. 
 
 So it is as regards these inferred facts that appeals to higher 
 courts usually take place. The Court of Appeal is bound by an 
 arbitrator's finding of fact if supported by any reasonable 
 evidence. They are only entitled to set it aside if there is no 
 reasonable evidence. What is evidence or no evidence is often 
 separated by a line of very fine drawing. Roughly there are two 
 great classes of such cases : when the accident takes place on 
 the actual scene of a man's duty, and when it does not. 
 
 Accident on Scene of Duty. 
 
 SECT, l (1). In these cases the workman gets a very liberal benefit of the 
 Arising out of. doubt, and very little evidence is required to warrant the infer- 
 ence of fact that the man was employed in doing his duty, and 
 that the accident arose out of and in the course of the employ- 
 ment. A striking example of this is given in " Swansea Vale " 
 (Owners of) v. Rice, 27 T. L. R. 440, heard in May last in the 
 House of Lords. Here the chief officer of a steam vessel fell 
 overboard between seven and eight a.m. The morning was fine 
 and he was on duty. No one saw him fall overboard. There 
 was evidence that during his watch he had felt giddy, gone below, 
 taken a dose of castor oil, and had then returned to his work on 
 deck. On these facts the arbitrator inferred that his death was 
 due to accident, and that it arose out of and in the course of his 
 employment. One fact was emphasised by Lord Alverstone : 
 " One thing we do know here ; whatever did happen, happened 
 while the man was on duty, on his watch." So this fact, com- 
 bined with there being no reason to suggest either suicide or 
 murder, more than justified the conclusions arrived at by their 
 Lordships, but by what principle of law other than that hinted at 
 by Lord Alverstone this case is to be distinguished from Marshall 
 v. " Wild Rose " (Owners o/), [1910] A. C. 486, following Bender v. 
 "Zent" (Owners of), [1909] 2 KB. 41, and some other cases with 
 facts more or less similar, does not appear. In the first a sailor 
 had gone on deck on a hot night and disappeared, and it was found 
 his widow had not discharged the onus of proving the accident
 
 Workmen's Compensation Ap$)eals. 1 
 
 arose out of the employment. So in Bender's Case, when a ship SECT, l (l). 
 was on the high seas on a calm day and the cook fell overboard ^!o 
 and was drowned, it was held it could not be inferred the of duty> 
 accident arose out of the employment. The House of Lords 
 declined to analyse the difference, and Lord Lorefonrn, L.C., said : 
 " My Lords, I am glad that the learned counsel who addressed 
 such concise and admirable arguments to your Lordships recog- 
 nised the true value of decided cases in connection with an 
 argument like this. Cases are really valuable in so far as they 
 contain principles of law. They are also of use of course to show 
 the way in which judges regard facts. But in that sense they 
 are only useful as illustrations. Judges are not laying down the 
 law when they are explaining their reasons for coming to a con- 
 clusion of fact, and it seems to me you have to decide each case 
 upon its own facts. Now, my Lords, the question here being 
 whether there is any evidence that justifies the county court 
 judge in arriving at the conclusion which he did, I must point 
 out that the difference between what is evidence of fact and what 
 is merely guessing at the fact is one that cannot be defined in 
 any formula that one can invent." 
 
 This position certainly simplifies the work of the House of 
 Lords, but is not very helpful to those who need guidance in 
 arriving at a decision. It is certain that another sailor, on 
 another ship, on another calm sea, will be missing. But who is 
 to advise his dependants of their rights. Is it to depend entirely 
 on the temperament of the arbitrator ? And who will more 
 object than the arbitrator himself to such matters being made 
 to depend on his temperament ? He wishes to administer the 
 law. He may rightly object to being also called upon to say 
 what the law is. Once before, under the old Act, our higher 
 courts took up a similar position in regard to scaffolding. Thus 
 we had the strange conclusion that in one case it was held 
 tressles with a board on them was a scaffold and a board on 
 tressles was not. Of course the meaning of a word is a pure 
 matter of law, and equally here the meaning of a phrase is a 
 matter of law. If two cases are identical in their facts, or if as
 
 8 Workmen 1 ! Compensation Appeals. 
 
 SECT. 1 (1). f ar ag facts are concerned there is nothing to differentiate 
 of^on^scene between them, then the result in each ought to be the same. But 
 as usually there will be evidence to justify either conclusion, we 
 might easily have both decided differently, and both held to be 
 decided correctly, and this simply for want of definite line- 
 drawing. Tell me the law and I will apply it. This is the 
 utmost that should be asked of any arbitrator. 
 
 Though little assistance is thus given by our highest tribunal, 
 yet we receive more guidance from other decisions where one prin- 
 ciple seems to emerge with considerable clearness and to operate 
 to distinguish one class of case from the other, and it is that 
 where a man is actually about his employer's business and is 
 injured, it is a very legitimate inference the injury arose 
 out of the employment. The facts found will be : the man 
 actually doing his master's work, and his being injured. From 
 these is inferred the further fact the injury arose out of what he 
 was doing, that is, arose out of his employment. This is an 
 inference that may be rebutted, but apart from such rebuttal the 
 conclusion is no mere guessing, but is in exactly the same 
 category as any other conclusion solely substantiated by circum- 
 stantial evidence. In the case of death each link in the chain 
 may need testing. Thus the actual employment may not be 
 proved by direct evidence, but can only be inferred from other facts 
 so proved. For example, a sailor returned to the deck, and was 
 there seen doing his duty ; then from these facts might be inferred 
 he continued doing it up to the time of the accident. So the 
 accident itself might have to be inferred from other facts for 
 want of direct evidence. Thus proof a man was in good health 
 and spirits and was found drowned by the side of the vessel 
 might afford the legitimate inference he had not committed 
 suicide but had met his death by accident. 
 
 A case just decided fairly illustrative of these principles is that 
 of Richardson v. " Avonmore " (Owners of), not yet reported. A 
 mate acted as watchman and lived on board ship when in dock. 
 He was found drowned, and near his body on a jetty some slight 
 distance away there was some food he had obviously been obtain-
 
 Workmen 1 s Compensation Appeals. 9 
 
 ing. It was also shown it was his duty and his custom to attend SECT, i (i). 
 
 to the ropes of the ship. These facts furnished abundant founda- f? 18mg out 
 
 or on scene 
 
 tion to warrant the inference of the further fact the accident of dut y- 
 arose out of the employment. 
 
 So a similar inference of fact was found in Furnival v. Johnson 
 Iron and Steel Co., where a workman went to get some tools 
 sharpened, was almost at once missed, and was found in the canal 
 by which he might naturally pass. There was evidence he was 
 young, healthy, and on good terms with his wife, and therefore 
 there was no reason to suggest suicide. So Farwell, L.J., pointed 
 out that the legal presumption is against crime, and therefore 
 against suicide. This, therefore, throws the burden of proof on 
 those who suggest suicide as also murder. 
 
 Accident Presumed on Scene of Duty. 
 
 So akin to this is where there is a death due to an undoubted SECT, i (i). 
 accident, and yet there is a doubt as to where the accident really tf 
 
 occurred. It is not open to an arbitrator to think it probably n scene of 
 occurred at one place more than another and find accordingly. 
 His finding, whatever it may be, must be always based on 
 evidence. The leading case is Mitchell v. Glamorgan Coal Co., 
 23 T. L. E. 588. Here a miner injured his finger, and died from 
 blood poisoning. It was unexplained how he injured it. Possibly 
 the only evidence would have been what he told his wife or 
 doctor, which was not admissible. (See also Sched. II. (4).) But 
 it was proved he left home and reached the mine with it all 
 right, and that when he again reached home it was crushed. 
 From these facts the arbitrator inferred he was injured when at 
 work, and the Court of Appeal held he was justified in so doing. 
 But equally he would have been justified in finding the reverse 
 had he felt the evidence warranted it. But in two recent cases, 
 Wood v. Davies, not yet reported, and Jenkins v. Standard 
 Colliery Co., 28 T. L. R. 7, where two colliers both died from 
 blood poisoning caused by injuries, and it was not known when 
 the injuries occurred, the arbitrator found in favour of their 
 dependants on the ground that it was more probable the injuries
 
 10 
 
 Workmen'* Compensation Appeals. 
 
 SECT, i (i). had been caused when they were at work than when they were 
 o^ 81 resumed e l sewnere - Further, he gave as the reason for his decision 
 
 on scene of fo&^ fa fa}^ himself bound by this Mitchell's Case. This 
 duty. 
 
 clearly was not the true reading of the decision. In this case 
 
 the arbitrator had definite facts established from which he 
 could, and did, infer other facts, and no colour is given to the 
 suggestion that under any conditions an arbitrator may merely 
 guess at what he thinks the probable cause. 
 
 But what is the legitimate inference to be drawn when it 
 cannot be proved or inferred that a man though on the scene of 
 his duty was actually about his master's work? What is the 
 position then ? What will be the facts found ? A man who may 
 or may not have been about his master's business is found dead. 
 Then it must be pure guessing to say his death arose out of his 
 employment. 
 
 When the man was obviously not doing his master's work there 
 is no trouble, though once again difficult questions arise when 
 he was doing acts which, though not exactly work for his 
 master, were yet more or less essential to enable him to do such 
 work. These, however, form a new class of case, on which 
 there has been no decision hitherto, and which will demand 
 independent discussion as they occur. 
 
 Accident not on Scene of Duty. 
 
 SECT, i (l). In Rose v. Morrison, 4 B. 277, one of a gang of men going 
 Arising out of. f r0 m one place to another stayed behind to relieve himself. He 
 went into a hoist, an admittedly improper place, and was killed. 
 It was held his employers were not responsible. " The man had 
 no right to go into the place he did and to expose himself to a 
 wholly unnecessary risk," per Cozens-Hardy, M.R. So a similar 
 decision was given in the Scotch case of Thomson v. Flemington 
 Coal Co., 48 S. L. R. 740. 
 
 When Accident in Course of Employment. 
 
 have now to consider the case of Astley v. Evans, [1911] 
 1036. Here a train of two trucks pushed by an 
 
 SECT, l (l). 
 
 Arising out of. 1 K. B.
 
 Workmen's Compensation Appeals. 11 
 
 engine overtook another train on the same metals and the two SECT. 1 (1). 
 trains ran buffer to buffer as if coupled. The brakesman of the f/^^fen'ki 
 rear train tried to get on the first train, but slipped between the course of - 
 buffers and was killed. There was no direct evidence why he 
 tried to board the first train, but there was evidence he would 
 shortly have to alight to move some points, and that it would 
 have been easier for him to alight from the front train, 
 which had steps, than from the rear train, which had none. The 
 arbitrator on these facts found for the dependants of the 
 deceased workman. The case is very near the line, and probably 
 whichever way the finding had been it would have been 
 accepted. The man was undoubtedly killed by accident in the 
 course of his employment. Then there was evidence he was 
 actively engaged in his duty, and though guilty of doing a 
 stupid thing there was evidence he had to move some points, 
 which he could more conveniently do from the front train, and 
 this was certainly some evidence from which the arbitrator could 
 infer the further fact he was still continuing in doing his duty 
 when he tried to pass from one truck to another. Equally it 
 would seem he might have found such evidence did not 
 suggest such inference, but on the whole it would seem with 
 less reason. This was the view taken by Cozens-Hardy, M.K. : 
 " I cannot see any ground for supposing that this was an act 
 done by the deceased for his own will and pleasure or for any 
 other purpose or motive than to discharge, in, it may have been, 
 an improper mode, his duty as brakesman. . . ." 
 
 This case has now been approved by the House of Lords and 
 mostly for the reasons given. " It was indeed argued here . . . 
 that in going from the truck to the van he quitted his employ- 
 ment, and that he was not employed to do what he did. The 
 answer is, that he was all the time doing what he was employed 
 to do, though in the wrong way," j>er Lord Lorelrarn, L.C. 
 
 Lord Atkinson (dissentient), in a very strong judgment, took a 
 counter view of the evidence, which, in his opinion, as much 
 pointed to the man trying to get into the guard's van to have a 
 chat with the brakesman as to do any special work of his own.
 
 12 
 
 Workmen's Compensation Appeals. 
 
 SECT. 1 (1). 
 
 Arising out 
 of when in 
 coarse of. 
 
 To this Lord Robson replied : " On the other hand the appellants 
 say, and it is of course possible, that the deceased may have 
 been getting into the brakes van merely to waste his time in the 
 society of the brakesman. That, however, would have been a 
 wrongful intention on his part, and as such it is not lightly to 
 be presumed against him. Where a workman is killed in the 
 course of his employment while engaged in some act reasonably 
 consistent with his master's service, I think it requires some 
 more definite evidence than the appellants can suggest in this 
 case in order to found the inference that he was moved by a 
 wrongful intention." In fact, so far as one can judge from the 
 reports, there was no evidence whatever, only pure guessing 
 possibly justifiable guessing to warrant such conclusion. 
 
 The Scotch Courts have gone one better on this case, for they 
 have held that where a man riding on a waggon dropped his 
 pipe and in jumping down to recover it fell and was killed, 
 his widow was entitled to recover : M'Laughlin v. Anderson, 
 48 S. L. E. 315. 
 
 SECT. 1 (1). 
 
 Arising out 
 of when in 
 course of. 
 
 SECT. 1 (1). 
 Arising out 
 of when in 
 course of. 
 
 Acting Unreasonably in Course of Employment. 
 
 In Keyser v. Bur dick, 4 B. 87, the employers disputed liability 
 on the ground their workman had acted unreasonably. He was 
 a riveter working on a ship in dock. When he came on deck he 
 found the vessel was being removed to a dry dock, and was already 
 a short distance from the quay. The gangway had been removed 
 and there was no other way of getting ashore than by slipping 
 down a rope which a fellow-workman had safely attempted. When 
 he tried to follow, the rope gave way and he was injured. On 
 these facts the arbitrator found for him, and the Court of Appeal 
 confirmed his award. So in an Irish case where a seaman in 
 jumping on board his ship hurt himself : Kearon v. Kearon, 45 
 Ir. L. T. 96. 
 
 Risks Not Specially Incident to Employment. 
 
 We have now to consider the somewhat important case of 
 Pierce v. The Provident Clothing and Supply Co., [1911] 1 K. B.
 
 Workmen's Compensation Appeals. 13 
 
 997, which is by no means as simple as it appears to be. Here a SECT. 1 (i). 
 collector for the company used a bicycle to visit their customers. tf 
 When doing so he was killed in a street accident. The Court 
 of Appeal, reversing the decision of the arbitrator, found the 
 accident arose out of as well as in the course of his employ- 
 ment, and adopted the reasons given in the almost 
 identical case of McNeice v. Singer, [1911] S. C. 12, decided 
 by the Court of Session. Here a salesman, also riding on his 
 bicycle, was kicked by a horse and injured. In this case the 
 learned president held that street dangers were a risk incident to 
 such employment, and that he had suffered from such risk, and 
 that it arose out of the employment. 
 
 The difficulty involved in the last case becomes more apparent 
 when we consider the next two. It will be remembered that 
 under Accident we have referred to the two cases of Warner v. 
 Couchman, [1911] 1 K. B. 351, and Karemaker v. " Corsican," 
 4 B. 295, in both of which compensation was sought to be 
 recovered on account of injuries caused by frost bite. Without 
 determining whether such injuries could be held to have been 
 caused by accident, both cases were dismissed on the ground the 
 accident, if an accident, did not arise out of the employment. 
 This is undoubtedly a very difficult point to determine, and 
 the case is an extremely interesting one to argue from both sides. 
 Thus it is clear excessive cold is not limited in its effects; 
 every one is liable to suffer from it, and it is not peculiar to 
 any particular employment. As put by Cozens -Hardy, M.R., 
 " it is not enough for the applicant to say the ' accident would not 
 have happened if I had not been engaged in that employment, 
 nor if I had not been in that particular place.' He must go 
 further, and must say, ' The accident arose because of some- 
 thing I was doing in the course of my employment, or because 
 I was exposed by the nature of my employment to some 
 peculiar danger.' " This, he was of opinion, could not be said 
 in the case of the baker simply going his round delivering 
 bread. 
 
 On the other hand Fletcher Moulton, L.J., diss., was of opinion
 
 14 Workmen's Compensation Appeals. 
 
 SECT, l (1). it could. " The man's employment required him to go his rounds 
 oY-lKin on this bitterl y cold da y and deliver the bread. . . . This involved 
 course of. exposure to the right hand, and it was this exposure which 
 brought on the frost bite." The finding of the arbitrator was 
 " there was nothing in the nature of the applicant's employ- 
 ment which exposed him to more than the ordinary risk of 
 cold to which any person working in the open was exposed on 
 that day. He adds that one fact only was relied on, viz., that 
 he had to take off his right-hand glove in order to give 
 change, and that this, though probably convenient, was not 
 necessary." But the learned judge's point was that it was the 
 man's employment that took him into the open, but " if the 
 accident was merely a consequence of the severity of the 
 weather to which persons in the locality, whether so employed or 
 not, were equally liable," it might also be held not to arise out of 
 the employment. " The true issue," he added, " could not be 
 better expressed than by the Irish Court of Appeal in Kelly 
 v. Kerry County Council, 1 B. 194, when dealing with the question 
 arising out of the death by lightning of a man working on the road. 
 They found that the accident did not arise out of the employment, 
 because there was no evidence that in following his employment, 
 he ran any greater risk of being struck by lightning than any 
 other person within the area of the storm. But when a case 
 arose of a man who by reason of his employment was exposed 
 to the danger of lightning to a greater degree than any other 
 person within the area of the storm, this Court in Andrew v. 
 Failsworth Industrial Society, [1904] 2 K. B. 32, held that the 
 accident arose ' out of ' the employment." 
 
 It will be observed that in all these cases the argument for 
 the employer was, the man was not exposed to accident more than 
 any other member of the public moving in similar circumstances, 
 and that in one case the argument was accepted and in the other 
 was not. What is the distinction ? It certainly appears to us 
 as sound that if a man is going on his master's business on a 
 bicycle and is knocked down that the accident arose out of 
 the employment ; and if frost bite is an accident, why not the
 
 Workmen's Compensation Appeals. 15 
 
 same conclusion ? Is it there seems a want of direct causation ? SECT, i (i). 
 Being knocked down is a direct act connected with the very work ^!JJSf e ^ 
 itself, whilst one's feeling as to the frost bite is that it merely course of - 
 happened during the employment and without any very particular 
 or necessary connection with it. No doubt the point is an 
 extremely difficult one, and probably cannot be better dealt with 
 than in the judgment of Collins, M.R., in Andreiv v. Failsworth, 
 [1904] 2 K. B. 32, where he says : " If there is, under particular 
 circumstances in a particular vocation, something appreciably 
 and substantially beyond the ordinary normal risk which ordinary 
 people run, and which is a necessary concomitant of the occupa- 
 tion the man is engaged in, then I am entitled to say that the 
 extra danger to which the man is exposed is something arising 
 out of his employment." This is a very fine piece of judicial 
 distinguishing between cases just on the line, and one falling one 
 side and one the other. Still, whether it absolutely covers these 
 facts must remain a matter of doubt. 
 
 Warner v. Couchman has now been approved by the House of 
 Lords. The Lords are particularly insistent on accepting the 
 finding of fact as made in the first instance by the arbitrator 
 whenever there is any evidence to warrant it. Then, referring 
 to Fletcher Moulton's, L.J., judgment, they held they were 
 concluded by the fact found by the county court judge, the man 
 had not been so specially affected. 
 
 Andreiv v. Failsworth has again been followed in Davies v. 
 Gillespie, where similar facts had to be considered. 
 
 Causal Relation. 
 
 To recover applicants must establish a causal relation between SECT, i (i). 
 the employment and the accident. The courts have taken a fairly Arisin & out of - 
 liberal view of such relation when a man has intended to act in 
 the interest of his master, but this will not justify a boy cleaning 
 machinery in motion when it was no part of his work to touch it 
 (Naylor v. Musgrave Spinning Co., 4 B. 286), nor an attendant in 
 a power-house who was injured in attempting to dust a switch- 
 board which he had been forbidden to touch (Jenkinson v.
 
 16 Workmen 1 s Compensation Appeals. 
 
 SECT. 1 (1). Harrison, 4 B. 194), and a fortiori a woman who met her death 
 Arising out through mere curiosity by trying to work a machine she had 
 relation. nothing to do with (Cronin v. Silver, 4 B. 221), and a lad who 
 through larking started a machine and injured himself (Cole v. 
 Evans, 4 B. 188). So also in Barnes v. Nunnery Colliery Co., 4 
 B. 43, where a boy in a colliery at some distance from his work 
 rode in a tub on an endless rope to get to it and was killed, the 
 applicants failed, as riding in such tub had been expressly for- 
 bidden. Though the rule was habitually disregarded, this did 
 not any the more alter the fact the act had nothing to do with 
 the work the lad was employed to do, and as Cozens-Hardy, M.R., 
 put it, "We must carefully distinguish between any negligent 
 doing of what was authorised and doing something wholly 
 unauthorised." 
 
 This distinction is well exemplified in the case of Harding v. 
 Brynddu Colliery Co., [1911] 2 K. B. 747. Here a collier was set 
 to drill a hole from above a seam in order to draw off dangerous 
 gases which rendered the seam unsafe. In this work it is 
 admittedly difficult to judge whether the drill is going in the 
 right direction, and the man asked if he might go into the seam 
 to see if it was running straight and he was told, No ! But he 
 went all the same and was suffocated in consequence. Here he 
 was clearly disobedient, but this did not alter the fact that though 
 disobedient he was still actively doing his best to do the very 
 work he was engaged to do, viz., drill the hole. The accident 
 arose undoubtedly out of his trying to do such work, and as the 
 disobedience was no defence, death having resulted, his employers 
 were held liable. There is a great difference between doing a 
 right thing in a wrong way, or a way actually forbidden, and in 
 doing a thing wrong in itself, and therefore, though Buckley, L.J., 
 disagreed, it would seem this decision is on the whole warranted by 
 the facts. The same conclusion was also arrived at in Mawdsley 
 v. West Leigh, not yet reported, where a man whose business it 
 was to oil machinery when it was stationary did so, though 
 forbidden, when it was in motion, and was killed. This 
 is further well illustrated by two Scotch cases. In a mine a
 
 Workmen's Compensation Appeals. 17 
 
 certain part became dangerous, and the usual notice to this SECT, l (l). 
 effect was put up. Notwithstanding this, a miner wanting a O f causal 
 pick he had left there, went for it, and having a naked light in relation - 
 his cap, it caused an explosion, and he was killed. The 
 arbitrator found against his dependants, but on appeal the Lord 
 President held that the man was in the course of his employment 
 doing a thing to further his master's work, and not for any 
 purposes of his own, and though in his conduct he was flagrantly 
 disobedient, yet it could not alter the fact the accident arose out 
 of his employment (Conway v. Pumpherston Oil Co., Ltd., 
 48 S. L. E. 632), but in the other case, where a miner went out 
 of his way to fire a shot, which was no business of his to do, and 
 which the rules of the mine required to be always done by one 
 man specially appointed in writing for the purpose, it was held 
 that the accident which resulted did not arise out of his 
 employment (Kerr v. Baird, 48 S. L. B. 646). 
 
 The Court had no difficulty with the case of Weighill v. South 
 Heaton Coal Co., Ltd., 4 B. 141. Here a miner employed to cut 
 a road through the coal, to increase his wages, cut coal from a 
 finished part of the road seventy yards away. This undermined 
 the supports and caused a fall which killed him. Obviously 
 such conduct had nothing whatever to do with the work he was 
 engaged to do, and therefore the accident did not arise out of his 
 employment. See also under Serious and Wilful Misconduct, 
 Sect. 1 (2) (c). 
 
 Accident to Volunteer. 
 
 The same rule applies to a volunteer even though his act be SECT, l (1). 
 most meritorious if it is really no part of the service he was 
 engaged to perform. Thus a patient in a hospital had to be 
 treated by X-rays. There being no one experienced in their use, 
 the house surgeon allowed himself to be experimented upon and 
 was injured. Without deciding whether he was a servant or not, it 
 was held the accident did not arise out of his employment (Curtis v. 
 Talbot). This case seems clear, but not so clear the case where a 
 " workman," sent on an errand, slipped on a banana skin, fell, 
 
 W.C.A. 2
 
 18 Workmen's Compensation Appeals. 
 
 SECT, l (1). and broke his thigh. Thus in Smith v. Morrison the master sent 
 o^vofunteer n ^ 8 servan ^ * a ^co\ post office, when being too late he hurried 
 on to the general post office, slipping and hurting himself as 
 mentioned. The arbitrator held, slipping on a banana skin was 
 not a danger especially incident to him in his employment, and 
 therefore found the accident did not arise out of it, and added, 
 if he thought it did not arise out of his employment when going 
 to a place where he had been sent, it was an a fortiori case that 
 it did not arise out of it when going to a place to which he 
 had not been sent. This the Court of Appeal took as a 
 finding of fact that the man when injured was virtually acting as 
 a volunteer, per Farwell, L.J., and dismissed the appeal on the 
 ground that the accident did not arise in the course of the 
 employment. This decision is hardly satisfactory. The primary 
 business of the man was to do his master's errand, and whether 
 at one post office or another was hardly material. If he had 
 returned without doing so he would have been rightly blamed as 
 a simpleton without an ounce of initiative. However, there is a 
 strong tendency for the moment for the Court of Appeal to 
 require men who want compensation for accident to do the thing 
 they are told, and in the way they are told. Perhaps this is 
 right. If masters are to be responsible in serious amounts for 
 mishaps to their men they may well ask to be consulted, not only 
 as to what is to be done but the manner also in which it is to be 
 done. Still this hardly applies to a simple duty like doing an 
 errand at one place when unable to do it at another. So the fact 
 the servant had to hurry because of his employment certainly 
 made his risk of slipping on a banana skin greater than that of 
 one of the ordinary public, and on the whole we think the man had 
 hard measure dealt out to him, and if the House of Lords varied 
 the award, we think they could find abundant justification for 
 so doing. 
 
 As to Injuries Aggravated by Disease, 
 
 SECT, l (1). On this the leading case is Clover and Clayton v. Hughes, [1910] 
 smg onto . ^ Q 249. Here a man in the last stage of heart disease died
 
 Workmen's Compensation Appeals. 19 
 
 when screwing a nut on to a bolt. The logic of the decision was SECT. 1 (i). 
 
 preserved by the finding of fact that the screwing on of such nut M^SJL?^ 
 
 caused an extra strain, which extra strain ruptured the artery T? ted b y 
 
 which caused his death. The extra strain thus rupturing an 
 
 artery which was on the very verge of breaking was as much an 
 
 accident as if the extra strain which had ruptured an artery had 
 
 been the violent fight for life of a man suddenly overwhelmed by 
 
 a crushing avalanche. Only a question of degree. An accident 
 
 is no less an accident because most serious. A pin scratch is an 
 
 accident ; its usual result is a temporary smart, but if the man 
 
 suffer from diabetes it may easily kill him. But this does not 
 
 make the scratch any less an accident. But in relying on this 
 
 case it must not be forgotten there was the finding of fact, the 
 
 extra strain which ruptured the artery was actually caused by 
 
 the work which the man was actually doing. The chain was 
 
 complete. Where the chain is not complete the applicants must 
 
 fail. In Barnabas v. Bersham Colliery Co., 4 B. 120, a miner 
 
 died of apoplexy in a mine ; no one was in a position to see him, 
 
 but they could hear him working and whistling. They heard him 
 
 ask the time. They knew what he was doing. He was building a 
 
 pack, work involving considerable exertion. All of a sudden he 
 
 ceased work and vomiting was heard. After a time some one 
 
 went to look and found him in a fit of apoplexy. On these facts 
 
 it was held that there was no evidence that he was seized when 
 
 incurring a strain. It was simply guessing to find that the 
 
 death was more due to an accident than to natural causes. As 
 
 the man was a great chewer, Fletcher Moulton, L.J., suggested it 
 
 might well be that a little of the saliva of the chew went the 
 
 wrong way ; the workman coughed and apoplexy followed. In 
 
 giving judgment, Cozens-Hardy, M.R., said: "An applicant has 
 
 thrown upon him the burden of proving that his injuries arose 
 
 from an accident that arose out of and in the course of his 
 
 employment. The applicant has the burden of proving this not 
 
 necessarily by direct evidence ; for it is quite well established that 
 
 inferences of fact may be drawn by the Court. But when 
 
 the facts are such that it is equally probable that there was not 
 
 22
 
 20 
 
 Workmen's Compensation Appeals. 
 
 7 
 
 SECT. 1 (1). an accident arising out of and in the course of the employment, 
 t nen ne cannot succeed." 
 
 ^is v * ew * * ne ^ aw was U P^ 6 ^ "* * ne House of Lords, where 
 Lord Loreburn, L.C., said : " The plaintiff must prove his case ; and 
 although he may establish a state of facts which lead one to 
 think that his version is quite a possible version of what took 
 place, he must do something more than show a state of facts 
 which is consistent either with one view or another view." 
 
 Clover and Clayton v. Hughes was relied on and followed in the 
 case of Trodden v. Lennard, 4 B. 190. Here a watchman on a 
 vessel had to use a rope ladder. When on it, the ladder gave a 
 sudden twist and he was heard to shout, " I'm done for." He 
 fell into the water and was picked up dead. The evidence 
 showed his heart was in a bad state and, medically, it seemed 
 probable he died before reaching the water. It was shown that 
 the sudden twist of the rope was enough to cause an extra strain 
 and so bring on such heart failure. On these facts the arbi- 
 trator found for the applicants and was approved by the Court 
 of Appeal. 
 
 Injuries Aggravated by Disease and Causal Relation. 
 
 SECT. 1 (1). If an undoubted accident occurs it is equally incumbent 
 Arising out of. on ^ Q applicant to prove the connection between such accident 
 and the resulting injuries. Thus take the case of Honor v. 
 Painter, 4 B. 188. Here a carman fell from his van and 
 sustained injuries. He died three weeks later. No evidence 
 was produced to show the connection between the accident and 
 the death, and the finding of the arbitrator in favour of the 
 dependants was set aside. " The man," said Cozens-Hardy, M.E., 
 " was taken away to the hospital after having fallen off his cart in 
 what looked like a fit it may not have been and he died three 
 weeks later. The dependants have to make out that the death 
 was due to an accident. There was no medical evidence as to 
 what he died from and none of the witnesses were in a position 
 to say that his death was due to the fall from the cart and it 
 seems impossible for us to get over that. We said yesterday,
 
 Workmen's Compensation Appeals. 21 
 
 and it is not necessary that we should say it again, that the SECT, l (1). 
 applicant in cases of this kind must not merely ask the Court to ^^^ 
 
 guess that the accident was the cause of death, must not merely and c . au sai 
 
 * relation. 
 
 say it is probable it was, but must either prove it by evidence or 
 by legitimate inference to be drawn from the facts proved or 
 admitted. There is no evidence, and there is nothing which 
 justifies the Court in drawing an inference here. It is quite 
 possible, and quite probable, that the death which this man met 
 with three weeks after the fall from the cart was not in any 
 way due to the accident, but may have been due to other 
 physical conditions." So for the same reasons a similar 
 conclusion was arrived at in the case of Browne v. Kidman, 4 B. 
 199, where the facts were as nearly identical as facts can be. 
 There was the same unexplained fall from a hay-cart with, in 
 addition, the doctor's evidence that the man's death was 
 probably due to cerebral disease and syncope. Again the 
 appeal of the employers was allowed. Again the Court 
 laid down : " There must be something more than surmise, 
 conjecture or guess, something which gives the actual 
 cause." So in Farmer v. Stafford, 4 B. 223, a man at 
 work called out that he had hurt his back. He was taken home 
 complaining of pains in his back and stomach. He died a week 
 later of intestinal obstruction, and there was some evidence of 
 previous illnesses and previous pains in the stomach. On these 
 facts the arbitrator found that it was not proved to what the fatal 
 obstruction was due, and found for the employers, and in this 
 was upheld by the Court of Appeal. Equally when a workman 
 collapsed at work and died from angina pectoris, the Court found 
 the dependants had not proved the accident arose out of the 
 employment. Here the facts certainly approximated very closely 
 to those of Clover and Clayton v. Hughes, supra. The deceased, 
 an elderly man, had been helping to push trucks up an incline and 
 to then tumble them off the rails, and this finished, had begun 
 shaping props. Whilst thus engaged he was taken ill and had to 
 stop. After resting, he went home and died the same evening of 
 angina pectoris. The arbitrator found the man had over-exerted
 
 22 Workmen's Compensation Appeals. 
 
 SECT, l (1) himself pushing or tumbling a truck, and had thus brought on 
 o^difease* ^G near ^ attack, and found for the dependants. But the Court of 
 relation** 1 Appeal, assuming an accident, were not satisfied there was anything 
 in the circumstances of the work to justify the inference that the 
 death arose out of the employment. Cozens-Hardy, M.R., said 
 the evidence of the doctors may be summarised thus : " The 
 arteries were all in a bad condition of long standing. Angina 
 pectoris may be brought on in a variety of ways. It may be due 
 to circumstances which can scarcely be called an accident at all. 
 A man walking in a strong wind may meet with death from 
 angina pectoiis. It may be due to walking upstairs or to very 
 slight exertion. It does not always come on immediately after 
 exertion. You cannot predicate that exertion will immediately 
 or within any definite time result in the attack. In that state of 
 things, it is impossible to say that this angina was due to the not 
 unduly heavy work the man had done that day. It may be due 
 to some other cause exertion elsewhere or at some other time. 
 It is impossible to say that the test laid down in Barnabas' Case 
 has been satisfied. The onus of proof has not been discharged, 
 the learned judge below was not entitled to speculate, which is 
 what, with great respect, he has done " (Hawkins v. Powells 
 Tillery Steam Coal Co., [1911] 1 K. B. 988). 
 
 Similar considerations warranted the conclusion in Ashley v. 
 Lilleshall Co., Ltd., where death was undoubtedly due to Bright's 
 disease and where at most the acceleration of death was due 
 to the accident if an accident. 
 
 The case of Groves v. Burroughes, 4 B. 185, hardly needs 
 mentioning. A man had a bad wound, scarred over. In exerting 
 himself he broke it open ; profuse bleeding followed, resulting in 
 death. The dependants were clearly entitled to recover. 
 
 Duration and Suspension of Employment. 
 
 oiil/T. 1 (1). 
 
 Arising out of. In several cases this point has been involved. In Molloy v. 
 South Wales Anthracite Colliery Co., 4 B. 65, a workman a few 
 days after leaving his work, according to the employers, was 
 given leave to go down into the mine to fetch his tools, but,
 
 Workmen's Compensation Appeals. 23 
 
 according to his evidence, was ordered to do so. Doing this he SECT - * C 1 )- 
 was injured. The arbitrator's notes agreed with the employers' ff^tfpen! 
 evidence, his finding with that of the man. On this it was held employment 
 he was entitled, and the Court of Appeal were unable to do 
 anything to help the employers. Why they could do nothing 
 does not appear, nor does it appear very clearly why orders 
 which the man could or could not obey as he liked should affect 
 the legal position. The employment ended, his right was an 
 action in trover if the company would not return his tools or 
 let him get them. In Phillips v. Williams, 4 B. 143, a collier 
 had a dispute about his wages and was referred to the under- 
 manager, who could be seen on the following Monday. On that 
 day he did not go to work, but went in his Sunday clothes to see 
 the manager, and on his objection not being satisfied he declined 
 to work any longer. On leaving, and before quitting the premises, 
 he was knocked down and killed. The arbitrator found for the 
 employers, and the Court of Appeal agreed with him, because he 
 was there in his own interests and not in those of his master. 
 A more difficult case is that of Riley v. Holland, [1911] 1 K. B. 
 1029, where a mill hand was injured when fetching her wages 
 after her employment was ended. It was the usage for wages to 
 be made up to the preceding Wednesday and paid on the Friday. 
 Her employment terminated on the Wednesday, but, as usual, 
 she had to go on Friday for her money. On these facts the 
 Court was divided as to whether the accident arose out of and in 
 the course of the employment. Cozens-Hardy, M.R., thought " it 
 is a fallacy to assume that the employment ceases necessarily 
 when actual work ceases. . . . Though her employment was 
 at an end on Wednesday night in the sense that she had ceased 
 work under the contract, yet the employment continued because 
 of the obligation of the employers to her arising out of the 
 employment and continuing until Friday afternoon." On the 
 other hand, Buckley, L. J., dissenting, held on the facts the employ- 
 ment had come to an end, for " when the last obligation of service 
 to be rendered and accepted had been discharged and all that 
 remains is a debt from the master to the servant for the wages
 
 24 Workmen's Compensation Appeals. 
 
 SECT, i (i). O f service, employment, I think, is over, and the only relation is 
 of suspen- ^ na ^ * debtor and creditor." This seems sound law, but does it 
 
 employment ^ u ^e cover the facts, for really was not fetching the wages an 
 incident of the employment, and was the employment really 
 ended for all purposes so long as such incident remained out- 
 standing ? If, then, so far the employment was not ended, and 
 if in thus fetching the wages the accident happened, did it not 
 both arise out of the employment and in the course of it ? 
 
 Suspension of Employment in the Case of Seamen. 
 
 SECT, i (i). rji^g v ^ ew ^ken by the Court of Appeal has been that, when 
 
 Arising out of. 
 
 sailors go ashore for purposes of their own, or having gone on 
 shore for purposes connected with their employment remain on 
 shore for purposes of their own, the employment must for such 
 period be regarded as suspended. No doubt the contractual 
 relation between the parties is usually for a term, but there is no 
 reason why such relation should not temporarily be interrupted by 
 mutual consent whether express or implied. In Moore v. Man- 
 chester Liners, [1910] A. C. 498, Monlton, L.J., in a dissentient 
 judgment, ultimately approved by the House of Lords, expressed 
 the view that as long as sailors went ashore with leave there was 
 no break. This view was not particularly material, as the case 
 turned on whether the accident should be regarded as arising out 
 of the employment. The very discussion of this assumed that it 
 must have been in the course of the employment, and whether 
 this was due to the employment having been resumed or never 
 suspended, the effect would be the same. In fact this applies to all 
 the cases, as each has been decided for the reason the accident did 
 or did not arise out of the employment, and, as Farwell, L.J., neatly 
 put it in Kitchenham v. S.S. "Johannesburg," [1911] 1 K. B. 523, 
 " Many accidents occur in the course of but not out of the 
 employment, but I am unable to think of any that could arise out 
 of and not also in the course of the employment." For this 
 reason the point has never been fought out as the point on which 
 a case turned, but since the decision in the House of Lords in the 
 cases of Kitchenham v. S.S. " Johannesburg," 4 B. 311, and in
 
 Workmen's Compensation Appeals. 25 
 
 Fletcher (formerly Hewitt) v. 8.8. "Duchess," [1910] 1 K. B. 772, SECT, i (i). 
 it must now be considered covered by authority that when seamen O f sufpen- 
 go ashore with leave there is no suspension of the employ- employment 
 ment. In both cases the judgment of the Court of Appeal was m case of 
 supported. In Kitchenham's Case a seaman had been ashore 
 with leave, was returning to his ship, was seen going on the 
 quay, but was not seen to board the gangway, nor was there any 
 evidence that he reached it. Simply a splash was heard, 
 there was a cry of " man overboard," and he was drowned before 
 he could be rescued. The Lord Chancellor delivered the judg- 
 ment agreed to by all the Lords : "In the present case 
 we are to say, first, Was this accident in the course of 
 the employment ? I think it was. The return of the man to his 
 ship was in the course of his employment. We are next to say 
 whether the accident arose out of his employment. I think not. 
 Upon the finding of the county court judge, which he states 
 while at the same time giving his view of the law, I think it 
 arose from a risk common to every one, namely, falling from a 
 quay into the water, and was not specially connected with the 
 man's employment." Again, in Fletcher's Case a captain left a 
 ship and went to an hotel 100 yards from the quay. On 
 returning, he hailed his ship for a boat, but before it reached him 
 he fell into the water and was drowned. The evidence was 
 equally consistent with his having gone ashore for his own pur- 
 poses as for purposes connected with his duties. Again Lord 
 Lorebnm, L.C., delivered the judgment, with which the other Lords 
 agreed : " My Lords, the question argued before your Lordships 
 was, that this accident, which proved fatal to the unfortunate 
 master of the ship, arose out of his employment. He fell over 
 the quay into the water when waiting to return to his ship. 
 It was not established that he had to go ashore on the ship's 
 business. I think that the risk from which he perished was not 
 one specially connected with his employment such as might be 
 a risk from crossing a plank or a gangway leading to the ship 
 or going in a boat to the ship. In these circumstances I think 
 that the conclusion at which the Court of Appeal arrived was
 
 26 
 
 ^ Compensation Appeals. 
 
 SECT, i (i). right and that this appeal ought to be dismissed. On the 
 
 Arising out 
 
 of suspen- question of arising out of apart from in the course of the 
 
 employment employment, these decisions are extremely useful. Instead of 
 
 seamen." the inquiry, Was this man on a ladder or on his ship, the Lord 
 
 Chancellor took the broad, commonsense view that the accident 
 
 was not one specially connected with the employment, and was a 
 
 risk common to any one having business on a quay. 
 
 At the same time it would not be advisable to press too hard 
 to its logical conclusion the fact that the accident took place in 
 the course of the employment. One would think he might argue 
 that if a man in the course of his employment did an act for no 
 purpose of his own but solely for purposes of his employment, 
 that such an act arose out of his employment. If in the course 
 of his employment a man is in one place and for purposes of 
 his employer he is trying to get to another, it would seem such 
 trying would be an act arising out of the employment. But not 
 so always, and these cases have been decided exactly as they 
 would have been had it been held the employment in each 
 instance had been suspended and had not been resumed when 
 the accident happened. So the theory of suspension of employ- 
 ment is so general to the whole of the Act as hitherto interpreted 
 that it seems a pity it should have been invaded. Those wishing 
 to contest the invasion cannot do better than study the apparently 
 unanswerable argument of Farwell, L.J., in Kitchenham's Case, to 
 which we have before referred. 
 
 The case of Leach v. Oakley, 4 B. 93, needs no comment. A 
 seaman with leave had gone on shore for his own purposes. He 
 was returning, and to do so had to pass over a gangway between his 
 ship and another. The gangway gave way and he was drowned. 
 On any view his employers seem rightly to have been made liable. 
 
 Facilities for Coming to or Leaving Work. 
 
 SECT, i (i). A long string of authorities in the Court of Appeal received 
 Arlsm&outof - their approval in the House of Lords in the case of Walters v. 
 Staveley Coal and Iron Co., 55 S. J. 579. In this case the respon- 
 dents permitted their men to use a short cut to their work over a
 
 Workmen's Compensation Appeals. 27 
 
 footpath that belonged to them. On passing over it a workman SECT, l (l). 
 was injured, and he sought compensation on the grounds that ^^j 
 
 the path was provided by the employers for their men's use, and for coming to 
 
 that when he was injured on it his injury arose out of and in the work. 
 
 course of his employment. So to bring the case within Cremins v. 
 
 Guest, [1908] 1 K. B. 469, he alleged contract. Here a mining 
 
 company provided a train for their men, and in a rush one of them 
 
 was pushed off the platform and killed. dozens-Hardy, M.R., found 
 
 the company liable, and said he based his judgment on the implied 
 
 contract to provide such carriage. But in Walter's Case neither the 
 
 Court of Appeal nor the House of Lords could find any such con- 
 
 tract, and held that there was only leave and licence to use the 
 
 path if the men chose, and that they could reach the scene of their 
 
 employment which the path was not in any way they pleased. 
 
 In Gilmour v. Dorman, 4 B. 279, the facts were very similar and 
 
 the result was the same. 
 
 A similar question arose in Parker v. Pont, not yet reported. 
 Here a farm labourer, working on F. farm, wished to see his 
 employer, who lived near K. farm, and to go there tried to get on 
 one of the empty dung-carts to have a ride part of the way. As he 
 was doing so the horse started and he was thrown to the ground 
 and injured. It was held it was no part of his contract of service 
 to use the cart and to unnecessarily add to the risk of his 
 employer. See also remarks under sub-heading Accident to 
 Volunteer. 
 
 (2) Provided that SECT, l (2) 
 
 (a) *h& employer shall not be liable under this Act in respect . **'* 
 of any injury which does not disable the workman w "* k e one 
 for a period of at least one week from earning full wages 
 at the work at which he was employed : 
 
 (6) When the injury was caused by the personal negligence SECT, l (2) 
 or wilful act of the employer or of some person for whose 
 act or default the employer is responsible, nothing in this Alternative 
 Act shall affect any civil liability of the employer, but re 
 in that case the workman may, at his option, either 
 claim compensation under this Act or take proceedings 
 independently of this Act; but the employer shall 
 not be liable to pay compensation for injury to a work- 
 man by accident arising out of and in the course of the
 
 28 
 
 Workmen's Compensation Appeals. 
 
 SECT. 1 (2) 
 
 0>). 
 
 Alternative 
 remedies. 
 
 SECT. 1 (2) 
 
 0). 
 
 Alternative 
 remedies. 
 
 employment both independently of and also under this 
 Act, and shall not be liable to any proceedings inde- 
 pendently of this Act, except in case of such personal 
 negligence or wilful act as aforesaid. 
 
 PROCEEDINGS INDEPENDENT OF ACT. 
 
 This section preserves to a workman his rights against his 
 employer other than under the Act, with the proviso, a man 
 shall not be paid twice. But what the Courts seem determined 
 upon is that parties who can agree and want to agree shall not 
 agree outside the Act, and so once and for all settle their 
 differences to their mutual satisfaction. As for this section, 
 any deliberate intent to rely on it is to be deemed fraudulent, 
 whilst its only use seems to be to catch tripping the innocent 
 and unwary. Why the State is to act nurse to people who 
 do not want nursing, to people who are competently advised by 
 competent solicitors, is difficult to understand, but such seems 
 the case. We can all manage other people's affairs so much 
 better than they can themselves. 
 
 In Howett v. Bradford, 104 L. T. 433, no doubt for the 
 very purpose of avoiding the benevolence of the Act, and why 
 parties should not seek to avoid its benevolence one fails to see 
 an employer and his workman agreed to settle for damages 
 instead of compensation. The whole matter seems straight as 
 could be. The man was well advised by his own solicitor, and 
 with his approval he elected to enforce his rights under the 
 Employers' Liability Act, 1880, and properly settled for 841. 12s. 
 So that there should be no doubt about his understanding 
 exactly what he did, a receipt as follows was written out and 
 signed by him personally : " The above discharge has been 
 read over by me or to me, and I fully understand that by 
 electing to receive compensation under the Employers' Liability 
 Act, 1880, no claim can hereafter be brought under the 
 Workmen's Compensation Act, 1906." This receipt was stamped 
 with a penny stamp, and was witnessed by his doctor and the 
 clerk to his own solicitors. 
 
 Yet on these facts the arbitrator found there had been no
 
 Workmen's Compensation Appeals. 29 
 
 bond fide exercise of the option, and accordingly when the SECT, l (2) 
 
 (b). 
 dependants claimed compensation under the Act for under the Alternative 
 
 Act their rights are independent of and not derivative from remed i e - 
 the workman through whom they claim, and, may be, the very independent 
 intention of settling under the Employers' Liability Act was to c 
 get rid of their rights, as both parties were perfectly entitled to 
 do he found for them in a further sum, which was about as 
 flagrant a case of being charitable with other people's money 
 as has ever been recorded. As reported, what tittle of evidence 
 was there that the settlement was not bond fide. " I am told," 
 said Cozens-Hardy, M.R., in the Court of Appeal, " that it has 
 been held, and I agree, that if a workman makes his claim 
 under one Act or the other, and the claim is paid, that he has 
 then taken proceedings. But that was not what had taken 
 place here, because there had been no claim in proceedings 
 under either Act." How this conclusion harmonises with the 
 fact that 84.1. 12s. had actually been paid is difficult to under- 
 stand. When damages are involved there may be claims without 
 payment, but whoever heard of payment without a claim ? 
 
 The case of Hawkes v. Cole, 3 B. 163, was perhaps a colourable 
 device to evade the Act, as negotiations were carried on under 
 it, and only at the last moment was a receipt given under the 
 Employers' Liability Act, and in that case Cozens-Hardy, M.R., 
 said he hoped such methods of evading the Act would not 
 become general. Certainly not by such methods, but why not 
 generally, as he seems to suggest? Here is not the place to 
 discuss the merits of an Act which has probably done more 
 harm to the honest worker than any other Act ever placed 
 on the statute-book. The old, the infirm, the injured are all 
 penalised by the insane clause against contracting out and as 
 regards cost : There is not an insurance company but will tell 
 you it has had to double and treble its premiums because of 
 the frauds they are subjected to. And who in the end has to find 
 the extra premiums ? The master ? the public ? No, but the 
 honest worker. Why have wages been stationary the last few 
 years in so many trades. Because what a man receives in doles
 
 30 
 
 Workmen's Compensation Appeals. 
 
 SECT. 1 (2) 
 
 0>). 
 
 Alternative 
 remedies. 
 
 SECT. 1 (2) 
 
 (c). 
 
 Serious and 
 wilful mis- 
 conduct. 
 
 SECT. 1 (3). 
 
 If any 
 question. 
 
 he loses in cash. You can legislate, you can agitate, you can 
 talk, but you can never check the irresistible force of economic 
 law. You may as well try and stop a glacier with an alpen- 
 stock. Then why, when parties do try to get over some of the 
 absurdities of the Act, are they to be hampered at every turn ? 
 
 (c) If it is proved that the injury to a workman is attributable 
 to the serious and wilful misconduct of that workman, any 
 compensation claimed in respect of that injury shall, 
 unless the injury results in death or serious and permanent 
 disablement, be disallowed. 
 
 SERIOUS AND WILFUL MISCONDUCT. 
 
 In Weighill v. South Heaton Coal Co., a, collier's work was to 
 cut a new road, but to fraudulently increase his earnings he 
 hewed coal from the sides of a road already finished, which, of 
 course, was much easier work. In doing so he undermined some 
 props and was killed. Because he had been guilty of serious and 
 wilful misconduct, which as a defence is not available in case of 
 death, the arbitrator found the employers liable. With this the 
 Court of Appeal did not agree. " In this case the county court 
 judge seemed to think it was enough to entitle the applicant to 
 compensation if serious and wilful misconduct on the part of a 
 workman was proved. This view would really strike out the words 
 ' arising out of and in the course of the employment ' from the 
 earlier part of the section. But if the evidence is that the work- 
 man was doing something outside the scope of his employment, 
 the proof of serious and wilful misconduct does not bring the 
 accident within the scope of the employment," per Cozens- 
 Hardy, M.E. See also under Arising out of and in the course of 
 the employment, sub-heading Causal Relation. 
 
 (3) If any question arises in any proceedings under this Act 
 as to the liability to pay compensation under this Act (including 
 any question as to whether the person injured is a workman to 
 whom this Act applies), or as to the amount or duration of 
 compensation under this Act, the question, if not settled by 
 agreement, shall, subject to the provisions of the First Schedule 
 to this Act, be settled by arbitration, in accordance with the 
 Second Schedule to this Act.
 
 Workmen's Compensation Appeals. 31 
 
 IP ANY QUESTION. SECT. 1 (3). 
 
 What agreement must an employer accede to if he wants to question, 
 avoid " any question " ? 
 
 Form 24 provides for awards in ordinary cases. After ordering 
 payment it runs, such weekly payments to commence as from the 
 day of and to continue during the total or partial incapacity 
 of the said A.B. for work, or until the same shall be ended, 
 diminished, increased or redeemed in accordance with the provisions 
 of the above-mentioned Act. In the first place, is an arbitrator 
 entitled to make such an award at all, Form 24 notwith- 
 standing ? In the second, if he is, is a workman entitled to demand 
 an agreement to the same effect ? Experience shows that it is 
 worth a good deal to him to be able to do so, as it enables him to 
 get full compensation for considerable periods to which he is not 
 entitled. So experience proves that it is much easier for him to 
 get an arbitrator to continue an old award than to make a new 
 one. In theory there should be no difference. In practice 
 there is all the difference in the world. Many a man would 
 probably fail to get any award at all if he had to prove he was 
 still partially incapacitated, whilst an employer only usually 
 ventures a review when he is practically certain the man is most 
 decidedly better, if not wholly recovered. On the other hand 
 there is the possibility that if an employer were enabled to 
 suddenly end his payments he might simply starve the man into 
 an unfair settlement. What then are the strict rights. If an 
 employer refuses to give the man all he is entitled to, there is 
 clearly some question outstanding to be settled by arbitration. 
 Then the question is not what Form 24 but what the Act gives 
 a man, for if an employer offers to give all the Act gives, clearly 
 no question remains for determination. His liability is found in 
 sect. 1 (1), read with Schedule I., par. (1) (i.) (b) of the Act. 
 Eegarding material words we find, where total or partial 
 incapacity results, an employer shall be liable to pay compensa- 
 tion which shall be a weekly payment during the incapacity not 
 exceeding so much. What is meant by the incapacity ? The point 
 was contested in Higgins v. William Poulsom in the Court of Appeal,
 
 32 
 
 Workmen's Compensation Appeals. 
 
 SECT. 1 (8). but was not decided, the case going off on a side issue. Mr. 
 
 question. Bodell, who argued the case for the workman, and to whom I am 
 indebted for particulars of what took place, tells me the Court 
 seems to have been divided, and that whilst Fletcher Moulton, L. J., 
 was of opinion the incapacity related back to the total or partial 
 incapacity referred to, Cozens-Hardy, M.R., and Farwell, L. J., were 
 of opinion it was limited to the particular incapacity with which 
 alone the agreement dealt. However, no judgments were given, 
 and the point must be still regarded as open. Personally, to express 
 an opinion, it would seem that for an employer to make an agree- 
 ment beyond cavil, it should be to pay a given amount during 
 total incapacity, and thereafter, during partial incapacity, such 
 amount as might from time to time be agreed, or, failing agree- 
 ment, as might be determined by arbitration. 
 
 This would seem to be more in accord with the provisions of 
 the Act than Form 24 as now settled, and would work more 
 justly. As regards onus of proof, this is not really a very serious 
 matter, anyway in theory. No employer would think of ending 
 or diminishing payments unless he had some evidence of the 
 man's improvement, and evidence once given, the question of 
 onus should cease to be material (see hereon Schedule II. (4), Onus 
 of proof). So any offer of a lessened payment would be made at 
 the risk of having to pay costs if on arbitration the judge should 
 find the amount too small. 
 
 Thus it would seem that some such agreement as above would 
 be reasonably fair to both parties. 
 
 IF NOT SETTLED BY AGREEMENT. 
 
 SECT. 1 (3). I n Fox v. Batter sea Borough Council, 4 B. 261, a workman met 
 
 Not settled by with an accident. Acting on the advice of his solicitor, he agreed 
 agreement. . 
 
 with his employers to take 10s. a week as compensation. There 
 
 was no doubt the advice was sound, as the employers had several 
 defences, amongst others, want of notice, want of claim within 
 six months, and, possibly, the Public Authorities Protection Act. 
 But as the man was earning from 27s. 6d. a week to 30s., on the 
 agreement coining before the registrar for him to record, he found
 
 Workmen 1 s Compensation Appeals. 33 
 
 that it was not genuine, and refused to do so. On appeal to the SECT. 1 (3). 
 
 judge, he agreed with the registrar and also found it was not nct^euied"" 1 
 
 genuine, " since the employers, in order to get recorded an agree- by a & reement - 
 
 ment for payment of less than half wages, purported to admit a 
 
 liability which they really denied." This was in November, 1910, 
 
 and in January, 1911, the judge as arbitrator made an award of 
 
 compensation. On appeal, the preliminary objection was taken : 
 
 it was out of time because it had not been entered within 
 
 twenty-one days of the first date. As to this the Court held the 
 
 whole formed part of the same proceeding, and then heard and 
 
 allowed the appeal on the merits. There was no doubt about 
 
 there being an agreement, and the only question for the registrar 
 
 was, was it genuine ? It was neither his business nor that of 
 
 the judge to concern himself with the amount. " His function 
 
 was limited to this one simple question : Is this a genuine agree- 
 
 ment or not ? Both parties admit the signature of Fox and the 
 
 seal by the council, and there is no suggestion of fraud or duress 
 
 or any attempt to set aside the agreement," per Cozens-Hardy, M.R. ; 
 
 and as Buckley, L.J., in agreeing, cynically put it : " It seems to 
 
 me that the registrar and the learned judge were seeking to 
 
 exercise a sort of parental or paternal jurisdiction which does 
 
 not exist." So Kennedy, L.J. : " The registrar in this case with 
 
 no doubt the very best intentions went beyond anything the Act 
 
 justifies in going into matters apart from genuineness." 
 
 (4) If, within the time herein-after in this Act limited for SECT. 1 (4). 
 taking proceedings, an action is brought to recover damages When action 
 independently of this Act for injury caused by any accident, and dismissed - 
 it is determined in such action that the injury is one for which 
 the employer is not liable in such action, but that he would have 
 been liable to pay compensation under the provisions of this Act, 
 the action shall be dismissed ; but the court in which the action 
 is tried shall, if the plaintiff so choose, proceed to assess such 
 compensation, but may deduct from such compensation all or 
 part of the costs which, in its judgment, had been caused by the 
 plaintiff bringing the action instead of proceeding under this 
 Act. In any proceeding under this sub-section, when the court 
 assesses the compensation it shall give a certificate of the com- 
 pensation it has awarded and the directions it has given as to 
 the deduction for costs, and such certificate shall have the force 
 and effect of an award under this Act. 
 
 W.C.A. 8
 
 34 Workmen's Compensation Appeals. 
 
 SECT. 1 (4). Alternative Remedy when Action Dismissed. 
 
 dismissed. The right given by this sub-section is one personal to the plaintiff 
 
 alone in such action. Thus in the case of death where a 
 dependant brings an action, fails in it, and then asks for and 
 gets compensation under this provision, his action does not 
 enure for the benefit of other co-dependants not parties to the 
 action. If they have failed to give notice or make their claim in 
 time they must stand or fall on their own particular rights 
 (Kyle v. MGintys, 48 S. L. R 474). 
 
 SECT. 1 (5).| (5) Nothing in this Act shall affect any proceeding for a fine 
 under the enactments relating to mines, factories, or workshops, 
 or the application of any such fine.
 
 SECTION 2. 
 
 TIME FOE TAKING PKOCEEDINGS. 
 
 2. (1) Proceedings for the recovery under this Act of compen- SECT. 2. 
 sation for an injury shall not be maintainable unless notice of Time for 
 the accident has been given as soon as practicable after the tak i?g pro- 
 happening thereof and before the workman has voluntarily left ce 
 the employment in which he was injured, and unless the claim 
 for compensation with respect to such accident has been made 
 within six months from the occurrence of the accident causing 
 the injury, or, in case of death, within six months from the time 
 of death : 
 
 Provided always that 
 
 (a) the want of or any defect or inaccuracy in such notice 
 shall not be a bar to the maintenance of such pro- 
 ceedings if it is found in the proceedings for settling the 
 claim that the employer is not, or would not, if a notice 
 or an amended notice were then given and the hearing 
 postponed, be prejudiced in his defence by the want, 
 defect, or inaccuracy, or that such want, defect, or 
 inaccuracy was occasioned by mistake, absence from the 
 United Kingdom, or other reasonable cause ; and 
 (6) the failure to make a claim within the period above speci- 
 fied shall not be a bar to the maintenance of such 
 proceedings if it is found that the failure was occasioned 
 by mistake, absence from the United Kingdom, or other 
 reasonable cause. 
 
 (2) Notice in respect of an injury under this Act shall give the 
 name and address of the person injured, and shall state in 
 ordinary language the cause of the injury and the date at which 
 the accident happened, and shall be served on the employer, or, 
 if there is more than one employer, upon one of such employers. 
 
 (3) The notice may be served by delivering the same at, 
 or sending it by post in a registered letter addressed to, the 
 residence or place of business of the person on whom it is to be 
 served. 
 
 (4) Where the employer is a body of persons, corporate or 
 unincorporate, the notice may also be served by delivering the 
 same at, or by sending it by post in a registered letter addressed 
 to, the employer at the office, or if there be more than one office 
 any one of the offices of such body. 
 
 NOTICE. 
 
 Whilst slight evidence may satisfy an arbitrator that a work- SECT. 2. 
 man never means to give up a genuine claim, and has taken Notlce 
 
 32
 
 36 Workmen's Compensation Appeals. 
 
 SECT. 2. steps to make it good, on the other hand very strong evidence 
 should be given to satisfy him that a notice which might defeat 
 the claim and prove it fraudulent should be dispensed with. 
 Thus a cab-driver alleged slipping off his cab and spraining his 
 foot on July 12th. He saw his employer the same evening but 
 said nothing of the accident to him. He went into the hospital 
 next day and said he sent notice by a woman who called to see 
 him. On July 23rd he was discharged, and saw his employer to 
 draw some wages, but again said nothing about the accident. On 
 August 6th he alleged he sent notice by registered post, followed 
 on August 12th by formal notice from his solicitor, which was the 
 only notice the employer admitted receiving. On these facts the 
 arbitrator found he had been prejudiced, and disallowed the 
 claim. On the hearing it was contended that as the employer 
 had not had the man examined by a doctor until October 17th he 
 could not say he was prejudiced by anything happening after 
 August 12th, and further that there was no case recorded where a 
 notice having been given within a month had been held too late. 
 In supporting the finding of the arbitrator, Cozens-Hardy, U.K., 
 said : " The judge has found that not giving the notice until 
 August 12th was not giving notice as soon as practicable, and that 
 in consequence the employer was prejudiced. I cannot myself 
 see that any delay on the part of the employer after August 12th 
 has anything to do with the matter. It is the period before 
 that which has to be considered " (Leach v. Hickson, 4 B. 
 153). 
 
 In Burrett v. Holloway Bros., 4 B. 239, the arbitrator found 
 that though notice had not been given as soon as practicable the 
 employers had not been prejudiced. On appeal, the Court held 
 there was no evidence on which he could find they had not been 
 prejudiced. The man, a carpenter, alleged he was working in 
 the bathroom of a house, that he slipped on a piece of wood and 
 sprained his ankle. It was alleged he sent verbal notice to the 
 foreman carpenter, but it was held he was not the right person to 
 whom to give it. The only other notice he gave was two months 
 after the accident, and directly the employers received it they said
 
 Workmen's Compensation Appeals. 37 
 
 they must make inquiries, with the result they did so and resisted SECT. 2. 
 the claim. The man had referred to a mate being with him when otlce> 
 he hurt himself, but he could not be found when the notice was 
 given, and had he been found it would have been very different 
 then asking him what had occurred to asking him the same 
 question two or three days after the accident. Therefore the 
 Court found the man had not discharged the onus on him of 
 proving the employers had not been prejudiced. As regards 
 such prejudice, Farwell, L.J., in Eaton v. Evans, stated the rule 
 very clearly : " No specific evidence of ' no prejudice ' is required ; 
 it is an inference to be drawn from the whole facts of the case." 
 In the Michaelmas term a still greater number of cases 
 involving notice came before the Court of Appeal, but they 
 turned so much on their own particular facts that they did not 
 add anything of importance to what has already been stated. 
 In Hoare v. Arding and Hobbs, not yet reported, a case arising 
 out of the Clapham Junction fire, a girl in the next shop had 
 such a shock through it that it ultimately resulted in a nervous 
 breakdown. She delayed giving notice, expecting to get over it, 
 and it was held she had a reasonable cause for so doing. A 
 similar decision was given in Fry v. The Mayor of Cheltenham, 
 W. N., 1911, 199, where the delay was also considerable, but 
 where the arbitrator was satisfied the results of the accident did 
 not become apparent for some considerable time. In Stevens v. 
 Insoles, W. N., 1911, 205, it was held notice in fact had been given. 
 Here a colliery company had put up a printed notice requiring 
 every employee who had been injured to give notice to the 
 manager, under-manager, or foreman before leaving for home, 
 and stating that otherwise his claim would be disputed. A boy, 
 slightly injured by the fall of a piece of coal, went with his 
 father to give notice as directed, and this done, it was then 
 entered in a book kept by the employers for the purpose. At 
 the hearing objection was taken no notice had been served on 
 the company and they had been prejudiced. But the Court of 
 Appeal held the notice as given met every requirement of the 
 Act, for as regards the only outstanding objection that actual
 
 38 Workmen's Compensation Appeals. 
 
 SECT. 2. service had never been made, that was a requirement they were 
 not prepared to give adherence to. 
 
 CLAIM. 
 
 SECT. 2. A claim, though it need not be formal, must yet be a definite 
 
 claim. In Johnson v. Wootton, 27 T.L. R. 487, a man was hurt 
 when exercising a horse. He made no claim under the Act, but 
 began an action which was dismissed for want of prosecution. 
 What he should have done was on the dismissal to have asked 
 for compensation to have been assessed under sect. 1 (4). Instead 
 he began de novo a claim for compensation. Without deciding 
 whether he had made an election to proceed by action or not, the 
 Court held there was no evidence he had made any claim. For 
 five weeks he had received wages, his wife fetching them. Then 
 they were stopped, and the wife asked his employer would he 
 compensate her and her children, to which, she said, he replied 
 " that she was nothing to him or he to her." This was not a 
 claim which could be held to have been a claim by the man him- 
 self. In Roks v. Pascall, [1911] 1 K. B. 982, it was held that 
 ignorance of the existence of the Act was not a mistake or other 
 reasonable cause for not making a claim. " In my opinion we 
 should be in fact really repealing the period of limitation, 
 namely, six months, which is distinctly imposed by the Act, if we 
 were to say that any person could escape from and bring his 
 claim any time afterwards if he could prove that he had never 
 heard of the existence of the Act or did not know anything about 
 its contents," per Cozens-Hardy, M.R. 
 
 As regards notice of claim in the case of industrial diseases, 
 see under Section 8.
 
 39 
 
 SECTION 3. 
 CONTRACTING OUT. 
 
 3. (1) If the Kegistrar of Friendly Societies, after taking SECT 3. 
 steps to ascertain the views of the employer and workmen, contracting 
 certifies that any scheme of compensation, benefit, or insurance out. 
 for the workmen of an employer in any employment, whether or 
 not such scheme includes other employers and their workmen, 
 provides scales of compensation not less favourable to the work- 
 men and their dependants than the corresponding scales con- 
 tained in this Act, and that, where the scheme provides for 
 contributions by the workmen, the scheme confers benefits at 
 least equivalent to those contributions, in addition to the benefits 
 to which the workmen would have been entitled under this Act, 
 and that a majority (to be ascertained by ballot) of the workmen 
 to whom the scheme is applicable are in favour of such scheme, 
 the employer may, whilst the certificate is in force, contract with 
 any of his workmen that the provisions of the scheme shall be 
 substituted for the provisions of this Act, and thereupon the 
 employer shall be liable only in accordance with the scheme, but, 
 save as aforesaid, this Act shall apply notwithstanding any 
 contract to the contrary made after the commencement of this 
 Act. 
 
 (2) The Eegistrar may give a certificate to expire at the end 
 of a limited period of not less than five years, and may from 
 time to time renew with or without modifications such a certifi- 
 cate to expire at the end of the period for which it is renewed. 
 
 (3) No scheme shall be so certified which contains an obliga- 
 tion upon the workmen to join the scheme as a condition of their 
 hiring, or which does not contain provisions enabling a workman 
 to withdraw from the scheme. 
 
 (4) If complaint is made to the Registrar of Friendly Societies 
 by or on behalf of the workmen of any employer that the benefits 
 conferred by any scheme no longer conform to the conditions 
 stated in sub-section (1) of this section, or that the provisions of 
 such scheme are being violated, or that the scheme is not being 
 fairly administered, or that satisfactory reasons exist for revoking 
 the certificate, the Eegistrar shall examine into the complaint, 
 and, if satisfied that good cause exist for such complaint, shall, 
 unless the cause of complaint is removed, revoke the certificate. 
 
 (5) When a certificate is revoked or expires, any moneys or 
 securities held for the purpose of the scheme shall, after due 
 provision has been made to discharge the liabilities already 
 accrued, be distributed as may be arranged between the employer 
 and workmen, or as may be determined by the Eegistrar of 
 Friendly Societies in the event of a difference of opinion. 
 
 (6) Whenever a scheme has been certified as aforesaid, it shall
 
 40 Workmen's Compensation Appeals. 
 
 SECT. 3. be the duty of the employer to answer all such inquiries and to 
 contracting furnish all such accounts in regard to the scheme as may be 
 made or required by the Registrar of Friendly Societies. 
 
 (7) The Chief Registrar of Friendly Societies shall include in 
 his annual report the particulars of the proceedings of the 
 Registrar under this Act. 
 
 (8) The Chief Registrar of Friendly Societies may make 
 regulations for the purpose of carrying this section into effect. 
 
 By Horn v. The Lords Commissioners of the Admiralty, [1911] 
 1 K. B. 24, it was decided that when a valid scheme was made 
 under this section it must be substituted for the provisions of the 
 Act in its entirety. It is under this section that contracting out 
 of the Act is provided for, and therefore when a workman comes 
 within the scheme he is placed outside the provisions of the Act 
 altogether.
 
 41 
 
 SECTION 4. 
 
 SUB-CONTRACTING. 
 
 4. (1) Where any person (in this section referred to as the SECT. 4. 
 principal), in the course of or for the purposes of his trade or sub-con- 
 business, contracts with any other person (in this section referred tracting. 
 to as the contractor) for the execution by or under the contractor 
 of the whole or any part of any work undertaken by the principal, 
 the principal shall be liable to pay to any workman employed in . 
 the execution of the work any compensation under this Act 
 which he would have been liable to pay if that workman had 
 been immediately employed by him ; and where compensation 
 is claimed from or proceedings are taken against the principal, 
 then, in the application of this Act, references to the principal 
 shall be substituted for references to the employer, except that 
 the amount of compensation shall be calculated with reference to 
 the earnings of the workman under the employer by whom he is 
 immediately employed : 
 
 Provided that, where the contract relates to threshing, 
 ploughing, or other agricultural work, and the contractor pro- 
 vides and uses machinery driven by mechanical power for the 
 purpose of such work, he and he alone shall be liable under this 
 Act to pay compensation to any workman employed by him on 
 such work. 
 
 (2) Where the principal is liable to pay compensation under 
 this section, he shall be entitled to be indemnified by any person 
 who would have been liable to pay compensation to the workman 
 independently of this section, and all questions as to the right to 
 and amount of any such indemnity shall in default of agreement 
 be settled by arbitration under this Act. 
 
 (3) Nothing in this section shall be construed as preventing 
 a workman recovering compensation under this Act from the 
 contractor instead of the principal. 
 
 (4) This section shall not apply in any case where the accident 
 occurred elsewhere than on, or in, or about premises on which 
 the principal has undertaken to execute the work or which are 
 otherwise under his control or management.
 
 42 
 
 SECTION 5. 
 PBOVISION AS TO CASES OF BANKRUPTCY OF EMPLOYER. 
 
 SECT. 5. 
 
 Provision as 
 to cases of 
 bankruptcy 
 of employer. 
 
 51 & 52 Viet, 
 c. 62. 
 
 52 & 53 Viet, 
 c. 60. 
 
 60 & 61 Viet, 
 c. 19. 
 
 50 & 51 Viet, 
 c. 48. 
 
 5. (1) Where any employer has entered into a contract with 
 any insurers in respect of any liability under this Act to any 
 workman, then, in the event of the employer becoming bankrupt, 
 or making a composition or arrangement with his creditors, or if 
 the employer is a company in the event of the company having 
 commenced to be wound up, the rights of the employer against 
 the insurers as respects that liability shall, notwithstanding any- 
 thing in the enactments relating to bankruptcy and the winding 
 up of companies, be transferred to and vest in the workman, and 
 upon any such transfer the insurers shall have the same rights 
 and remedies and be subject to the same liabilities as if they were 
 the employer, so however that the insurers shall not be under 
 any greater liability to the workman than they would have been 
 under to the employer. 
 
 (2) If the liability of the insurers to the workman is less than 
 the liability of the employer to the workman, the workman may 
 prove for the balance in the bankruptcy or liquidation. 
 
 (3) There shall be included among the debts which under 
 section one of the Preferential Payments in Bankruptcy Act, 
 1888, and section four of the Preferential Payments in Bankruptcy 
 (Ireland) Act, 1889, are in the distribution of the property of a 
 bankrupt and in the distribution of the assets of a company being 
 wound up to be paid in priority to all other debts, the amount, 
 not exceeding in any individual case one hundred pounds, due in 
 respect of any compensation the liability wherefor accrued before 
 the date of the receiving order or the commencement of the 
 winding up, and those Acts and the Preferential Payments in 
 Bankruptcy Amendment Act, 1897, shall have effect accordingly. 
 Where the compensation is a weekly payment, the amount due in 
 respect thereof shall, for the purposes of this provision, be taken 
 to be the amount of the lump sum for which the weekly payment 
 could, if redeemable, be redeemed if the employer made 
 an application for that purpose under the First Schedule to 
 this Act. 
 
 (4) In the case of the winding up of a company within the 
 meaning of the Stannaries Act, 1887, such an amount as afore- 
 said, if the compensation is payable to a miner or the dependants 
 of a miner, shall have the like priority as is conferred on wages 
 of miners by section nine of that Act, and that section shall have 
 effect accordingly. 
 
 (5) The provisions of this section with respect to preferences 
 and priorities shall not apply where the bankrupt or the company 
 being wound up has entered into such a contract with insurers as 
 aforesaid.
 
 Workmen's Compensation Appeals. 43 
 
 (6) This section shall not apply where a company is wound up SECT. 5. 
 voluntarily merely for the purposes of reconstruction or of Provision as 
 amalgamation with another company. bankruptcy 
 
 of employer. 
 
 In Homer v. Gough, L. T., Nov. 4th, 1911, a workman was in gECT g g . 
 receipt of compensation when his employer sold his business Preferential 
 to a limited company, which took over and indemnified him 
 against all claims. After a time a receiver for debenture-holders 
 was appointed and a voluntary winding-up, not within sub-sect. 6, 
 was decided upon. The man applied under sub-sect. 3 to the 
 county court judge to commute his weekly payment. This 
 the judge did at 100Z., and made an award that the receiver and 
 liquidator should pay him the same. From this award the latter 
 appealed to the Court of Appeal, who held it was not an appeal 
 under the Act and did not lie to their Court. Ordinarily the 
 procedure indicated would apparently seem to be that on a 
 winding-up a workman should apply to the tribunal dealing with 
 the assets of the company to be allowed to prove for the compensa- 
 tion at its assessed amount, and that to the extent of 100Z. it should 
 be declared a preferential claim. It is doubtful if the arbitrator 
 as arbitrator has any jurisdiction under this section at all. 
 Under the Act he has found a workman is entitled to a weekly 
 payment. Default is made in payment, and execution becomes 
 impossible because an order is made for winding up. Then the 
 sub-section provides how such payment is to be treated on the 
 winding-up.
 
 44 
 
 stranger. 
 
 SECTION 6. 
 EEMEDIES BOTH AGAINST EMPLOYER AND STRANGER. 
 
 SECT. 6. 6. Where the injury for which compensation is payable under 
 
 Remedies this Act was caused under circumstances creating a legal 
 both against liability in some person other than the employer to pay damages 
 respect thereof 
 
 (1) The workman may take proceedings both against that 
 
 person to recover damages and against any person liable 
 to pay compensation under this Act for such compensation, 
 but shall not be entitled to recover both damages and 
 compensation; and 
 
 (2) If the workman has recovered compensation under this 
 
 Act, the person by whom the compensation was paid, and 
 any person who has been called on to pay an indemnity 
 under the section of this Act relating to sub-contracting, 
 shall be entitled to be indemnified by the person so liable 
 to pay damages as aforesaid, and all questions as to 
 the right to and amount of any such indemnity shall, 
 in default of agreement, be settled by action, or, by 
 consent of the parties, by arbitration under this Act. 
 
 NOT ENTITLED TO RECOVER BOTH DAMAGES AND COMPEN- 
 SATION. 
 
 SECT. 6 (1). 
 
 No doable 
 remedy. 
 
 In Huckle v. London County Council, 4 B. 113, a workman was 
 injured by third parties. He saw his employers, and asked them 
 if they could do anything for him as he was destitute. They said 
 yes, allowed him half wages, and gave him a receipt to sign which 
 he neither read nor appreciated. In was to this effect : "Received 
 under the Workmen's Compensation Act, 1906, . . . 12s. Sd., 
 compensation at the rate of one half my average weekly earnings 
 up to ... in respect of an accident which occurred to me on or 
 about April 17, 1909." The arbitrator held he had recovered 
 compensation within this section, and would not let the case go 
 to the jury. The Divisional Court, affirmed by the Court of 
 Appeal, held it was a question for the jury whether the man 
 understood the nature and effect of the receipt, and sent the case 
 back for re-trial. It does not appear their decision is intended to 
 unsettle the law. It simply decides that the receipt was not 
 conclusive against the man, and that all the circumstances had
 
 Workmen?* Compensation Appeals. 45 
 
 to be gone into to find whether there had or had not been an SECT. 6 (1). 
 
 effective exercise of an option. A long string of cases establishes ^e^ utle 
 
 that a man is not to try and get money from two people for the 
 
 same accident. If he takes money from his employer, reserving 
 
 his rights against others, he will fail. If he receives money from 
 
 one party not to proceed against him he can proceed against no 
 
 one else. But there may be cases where an employer may wish 
 
 to help his men, destitute as this man was, without prejudicing 
 
 their rights to get full damages from the wrongdoer. Then care 
 
 must be taken how the weekly payments are made and received, 
 
 or there may be grave risk of this being the result. Nor to 
 
 protect himself is it necessary to explicitly state the payments 
 
 are under the Act, for if in the end the man should claim 
 
 compensation all such payments will have to be taken into 
 
 account. Having regard to the ultimate development of this 
 
 case, the man seems to have suffered from the extreme caution 
 
 of his employers, as it was to his interest to get damages and 
 
 not compensation, and there was no good reason why he should 
 
 have given up his rights, nor why they should have wished 
 
 him to do so. 
 
 Employer's Right to Indemnity. 
 
 In Lankester v. Miller, Hetherington (third party), 4 B. 80, a SECT. 6 (2). 
 man was sitting on the shafts of a cart when the horse, frightened 
 by a motor driven by the third party, bolted, threw him to the 
 ground, and killed him. His employer admitted liability, and 
 claimed indemnity over. His right to such indemnity turned on 
 this : Could his man have recovered from the third party for 
 negligence ? As regards actual driving, no fault could be found, as 
 Hetherington had slowed down to about six miles an hour when 
 overtaking the cart and horse, and the negligence alleged 
 against him was that the hooter, which by statute he was required 
 to carry, was defective. On this point, Cozens-Hardy, M.R., held : 
 " It may very well be we have not to decide that here that the 
 third party may have been liable to a penalty for what he did, 
 but the judge has found that the breach of the regulation was not
 
 46 Workmen's Compensation Appeals. 
 
 SECT. 6 (2). the causa causans of the accident. ... I see no reason to differ 
 indemnity ^ rom ^ e l earne d judge." And, the other judges concurring, the 
 third party was held not liable. 
 
 When Third Parties Fellow Workmen. 
 
 SECT. 6 (2). Lees and Sykes (third parties} v. Dunkerley Bros., [1911] A. C. 5, 
 me^th^d 1 *" * s a mos ^ important case. Here a boy, Gibson, was injured by the 
 parties. negligence of the third parties, his fellow workmen. His employer 
 admitted his right to compensation, and sought an indemnity 
 from the third parties. By consent the arbitrator decided the 
 question, and found for the employers. His decision was 
 approved by the Court of Appeal, and again approved by the 
 House of Lords. The third parties argued that as fellow 
 servants they should be immune. Lord Loreburn, L.C., said : " I 
 can hardly imagine a more dangerous or mischievous principle 
 than that which is sought to be set up here. It may be right or 
 wrong to say, as Priestley v. Fowler, 3 M. & W. 1 ; 7 L. J. Ex. 42, 
 says, that a man is not to be responsible for the negligence of 
 his agents. That is decided law and I make no comment upon 
 it. But it is a very different proposition to say that a man is not 
 to be responsible for his own negligence. That would mean a 
 free hand to everybody to neglect his duty towards his fellow 
 servant and escape with impunity from all liability for damages 
 for the consequences of his own carelessness or neglect of duty. 
 Every one must have an interest in maintaining the law in a 
 sense hostile to such a proposition, and I should think that of all 
 classes in the community workmen who work together in many 
 dangerous employments have the greatest interest of all in pre- 
 venting the doctrine which has been very carefully and reason- 
 ably put forward from being accepted."
 
 47 
 
 SECTION 7. 
 APPLICATION OP ACT TO SEAMEN. 
 
 7. (1) This Act shall apply to masters, seamen, and appren- SECT. 7. 
 tices to the sea service and apprentices in the sea-fishing service, Application 
 provided that such persons are workmen within the meaning of of Act to 
 this Act, and are members of the crew of any ship registered seamen - 
 in the United Kingdom, or of any other British ship or vessel 
 in which the owner, or (if there is more than one owner) the 
 managing owner or manager resides or has his principal place 
 of business in the United Kingdom, subject to the following 
 modifications : 
 
 (a) The notice of accident and the claim for compensation 
 may, except where the person injured is the master, 
 be served on the master of the ship as if he were 
 the employer, but where the accident happened and 
 the incapacity commenced on board the ship it shall 
 not be necessary to give any notice of the accident : 
 (&) In the case of the death of the master, seaman, or appren- 
 tice, the claim for compensation shall be made within 
 six months after news of the death has been received by 
 the claimant : 
 
 (c) Where an injured master, seaman, or apprentice is dis- 
 
 charged or left behind in a British possession or in a 
 foreign country, depositions respecting the circumstances 
 and nature of the injury may be taken by any judge or 
 magistrate in the British possession, and by any British 
 consular officer in the foreign country, and if so taken 
 shall be transmitted by the person by whom they are 
 taken to the Board of Trade, and such depositions or 
 certified copies thereof shall in any proceedings for 
 enforcing the claim be admissible in evidence as pro- 
 vided by sections six hundred and ninety-one and six 
 hundred and ninety-five of the Merchant Shipping Act, 57 & 58 Viet. 
 1894, and those sections shall apply accordingly : c - 60 - 
 
 (d) In the case of the death of a master, seaman, or apprentice, 
 
 leaving no dependants, no compensation shall be payable, 
 if the owner of the ship is under the Merchant Shipping 
 Act, 1894, liable to pay the expenses of burial : 
 
 (e) The weekly payment shall not be payable in respect of the 
 
 period during which the owner of the ship is, under the 
 Merchant Shipping Act, 1894, as amended by any sub- 
 sequent enactment, or otherwise, liable to defray the 
 expenses of maintenance of the injured master, seaman, 
 or apprentice : 
 
 (/) Any sum payable by way of compensation by the owner 
 of a ship under this Act shall be paid in full notwith- 
 standing anything in section five hundred and three of
 
 48 Workmen's Compensation Appeals. 
 
 SECT. 7. the Merchant Shipping Act, 1894 (which relates to the 
 
 Application limitation of a shipowner's liability in certain cases of 
 
 sealnen* 1 8S * ^ e > i n J ur y> or damage), but the limitation on the 
 
 owner's liability imposed by that section shall apply to 
 
 the amount recoverable by way of indemnity under the 
 
 section of this Act relating to remedies both against 
 
 employer and stranger, as if the indemnity were damages 
 
 for loss of life or personal injury : 
 
 (g) Subsections (2) and (3) of section one hundred and seventy- 
 four of the Merchant Shipping Act, 1894 (which relates 
 to the recovery of wages of seamen lost with their ship), 
 shall apply as respects proceedings for the recovery of 
 compensation by dependants of masters, seamen, and 
 apprentices lost with their ship as they apply with 
 respect to proceedings for the recovery of wages due 
 to seamen and apprentices; and proceedings for the 
 recovery of compensation shall in such a case be main- 
 tainable if the claim is made within eighteen months of 
 the date at which the ship is deemed to have been lost 
 with all hands. 
 
 (2) This Act shall not apply to such members of the crew of 
 a fishing vessel as are remunerated by shares in the profits or 
 the gross earnings of the working of such vessel. 
 
 (3) This section shall extend to pilots to whom Part X. of 
 the Merchant Shipping Act, 1894, applies, as if a pilot when 
 employed on any such ship as aforesaid were a seaman and a 
 member of the crew. 
 
 REGISTERED IN THE UNITED KINGDOM. 
 
 SECT. 7 (l). In Panagotis v. "Pontiac " (Owners of), Sol. Jo., Nov. 18, 1911, a 
 nor^-Brldsh 18 colonial sailor, on a colonial ship, belonging to a colonial owner, 
 Bhip- was injured locally (in the Barry Dock, Cardiff), within the juris- 
 
 diction of the Act. He detained the ship, and this was an appeal 
 against the order to detain. As this sect. 7, as well as sect. 11, 
 which provides for the detention of ships, has nothing whatever 
 to do with any ships except those specified, viz., those registered 
 in the United Kingdom or British-owned as stated, the arbitrator 
 had no power under the Act to order the detention. Therefore, 
 as the Act did not apply, what he did was not under it, and 
 therefore an appeal from his decision should have been made to 
 a Divisional Court and not to the Court of Appeal. 
 
 As regards the rights of the seaman, he had none under these 
 sections, and when he tried to enforce his claim as an ordinary
 
 Workmen's Compensation Appeals. 49 
 
 workman working within the jurisdiction of the Act he failed. SECT. 7 (1). 
 He had not complied, nor could he comply, with the formalities Clai ^ ?& a i flst 
 
 non-British 
 
 requisite for so claiming, nor could he eke them out by what he shi P- 
 had done under sects. 7 and 11. In substance, a sailor belonging 
 to another nationality does not acquire any rights against his 
 employer, under an Act which does not apply to him, merely 
 because he happens to be injured on British soil. 
 
 THE WEEKLY PAYMENT SHALL NOT BE PAYABLE. 
 
 An important decision on sub-sect, (e) is McDermott v. S.S. SECT - 7 C 1 ) 
 " Tintoretto," [1911] A. C. 35, in the House of Lords. 
 
 Paragraph 3 of Schedule I. of the Act reads : " In fixing the 
 amount of the weekly payment regard shall be had to any payment, 
 allowance or benefit which the workman may receive from the 
 employers during the period of his incapacity" 
 
 On these two clauses the employers built up a very ingenious SECT. 7 (l) 
 
 argument. By virtue of the first clause they contended that ^' 
 
 Overlapping 
 so long as they were defraying the expenses of the seaman payments. 
 
 as mentioned they were not to be liable for any weekly payment 
 under the Act, and by virtue of the latter clause that when such 
 weekly payment was being assessed deductions had to be made 
 for these selfsame expenses defrayed by them. A divided Court 
 of Appeal, Kennedy, L.J., dissentient, found for the employers, 
 whilst a united House of Lords thought their contention far too 
 technical, and were of opinion the two periods were to be regarded 
 as continuous and not overlapping, or, putting the proposition 
 the reverse way, they held that all that was intended was that the 
 seaman was not to be paid twice over by the overlapping of 
 benefits derived from two separate statutes. 
 See also under Schedule I. (3). 
 
 W.C.A.
 
 50 
 
 SECT. 8 (1). 
 
 Application 
 of Act to 
 industrial 
 diseases. 
 1 Edw. 7, 
 c. 22. 
 
 SECT. 8. 
 
 Industrial 
 diseases. 
 
 SECTION 8. 
 APPLICATION OF ACT TO INDUSTRIAL DISEASES. 
 
 8. (1) Where 
 
 (i.) the certifying surgeon appointed under the Factory and 
 Workshop Act, 1901, for the district in which a workman 
 is employed certifies that the workman is suffering 
 from a disease mentioned in the Third Schedule to this 
 Act and is thereby disabled from earning full wages at 
 the work at which he was employed ; or 
 
 (ii.) a workman is, in pursuance of any special rules or 
 regulations made under the Factory and Workshop Act, 
 1901, suspended from his usual employment on account 
 of having contracted any such disease ; or 
 (iii.) the death of a workman is caused by any such disease ; 
 and the disease is due to the nature of any employment in which 
 the workman was employed at any time within the twelve months 
 previous to the date of the disablement or suspension, whether 
 under one or more employers, he or his dependants shall be 
 entitled to compensation under this Act as if the disease or such 
 suspension as aforesaid were a personal injury by accident 
 arising out of and in the course of that employment, subject to 
 the following modifications : 
 
 (a) The disablement or suspension shall be treated as the 
 
 happening of the accident ; 
 
 (&) If it is proved that the workman has at the time of 
 entering the employment wilfully and falsely repre- 
 sented himself in writing as not having previously 
 suffered from the disease, compensation shall not be 
 payable ; 
 
 (c) The compensation shall be recoverable from the employer 
 who last employed the workman during the said twelve 
 months in the employment to the nature of which the 
 disease was due : 
 Provided that 
 
 (i.) the workman or his dependants if so required shall 
 furnish that employer with such information as to the 
 names and addresses of all the other employers who 
 employed him in the employment during the said twelve 
 months as he or they may possess, and, if such in- 
 formation is not furnished, or is not sufficient to enable that 
 employer to take proceedings under the next following 
 proviso, that employer upon proving that the disease was 
 not contracted whilst the workman was in his employ- 
 ment shall not be liable to pay compensation ; and 
 
 (ii.) if that employer alleges that the disease was in fact 
 contracted whilst the workman was in the employment
 
 Workmen's Compensation Appeals. 51 
 
 of some other employer, and not whilst in his employment, SECT. 8. 
 he may join such other employer as a party to the industrial 
 arbitration, and if the allegation is proved that other dlseases - 
 employer shall be the employer from whom the 
 compensation is to be recoverable ; and 
 
 (iii.) if the disease is of such a nature as to be 
 contracted by a gradual process, any other employers, 
 who during the said twelve months employed the work- 
 man in the employment to the nature of which the 
 disease was due, shall be liable to make to the employer 
 from whom compensation is recoverable such contribu- 
 tions as, in default of agreement, may be determined in 
 the arbitration under this Act for settling the amount of 
 the compensation ; 
 
 (d) The amount of the compensation shall be calculated with 
 
 reference to the earnings of the workman under the 
 employer from whom the compensation is recoverable ; 
 
 (e) The employer to whom notice of the death, disablement, 
 
 or suspension is to be given shall be the employer who 
 last employed the workman during the said twelve 
 months in the employment to the nature of which the 
 disease was due, and the notice may be given notwith- 
 standing that the workman has voluntarily left his 
 employment ; 
 
 (/) If an employer or a workman is aggrieved by the action of 
 a certifying or other surgeon in giving or refusing to give 
 a certificate of disablement or in suspending or refusing to 
 suspend a workman for the purposes of this section, the 
 matter shall in accordance with regulations made by the 
 Secretary of State be referred to a medical referee, whose 
 decision shall be final. 
 
 (2) If the workman at or immediately before the date of the 
 disablement or suspension was employed in any process men- 
 tioned in the second column of the Third Schedule to this Act, 
 and the disease contracted is the disease in the first column of 
 that Schedule set opposite the description of the process, the 
 disease, except where the certifying surgeon certifies that in his 
 opinion the disease was not due to the nature of the employment, 
 shall be deemed to have been due to the nature of that employ- 
 ment, unless the employer proves the contrary. 
 
 (3) The Secretary of State may make rules regulating the 
 duties and fees of certifying and other surgeons (including dentists) 
 under this section. 
 
 (4) For the purposes of this section the date of disablement 
 shall be such date as the certifying surgeon certifies as the date 
 on which the disablement commenced, or, if he is unable to 
 certify such a date, the date on which the certificate is given : 
 Provided that 
 
 (a) Where the medical referee allows an appeal against a 
 
 42
 
 52 Workmen's Compensation Appeals. 
 
 SECT. 8. refusal by a certifying surgeon to give a certificate of 
 
 industrial disablement, the date of disablement shall be such date 
 
 as the medical referee may determine : 
 (6) Where a workman dies without having obtained a certificate 
 
 of disablement, or is at the time of death not in receipt of 
 
 a weekly payment on account of disablement, it shall be 
 
 the date of death. 
 
 (5) In such cases, and subject to such conditions as the 
 Secretary of State may direct, a medical practitioner appointed 
 by the Secretary of State for the purpose shall have the powers 
 and duties of a certify ing surgeon under this section, and this 
 section shall be construed accordingly. 
 
 (6) The Secretary of State may make orders for extending the 
 provisions of this section to other diseases and other processes, 
 and to injuries due to the nature of any employment specified in 
 the order not being injuries by accident, either without modifica- 
 tion or subject to such modifications as may be contained in the 
 order. 
 
 (7) Where, after inquiry held on the application of any 
 employers or workmen engaged in any industry to which this 
 section applies, it appears that a mutual trade insurance company 
 or society for insuring against the risks under this section has 
 been established for the industry, and that a majority of the 
 employers engaged in that industry are insured against such 
 risks in the company or society and that the company or society 
 consents, the Secretary of State may, by Provisional Order, 
 require all employers in that industry to insure in the company 
 or society upon such terms and under such conditions and subject 
 to such exceptions as may be set forth in the Order. Where such 
 a company or society has been established, but is confined to 
 employers in any particular locality or of any particular class, 
 the Secretary of State may for the purposes of this provision treat 
 the industry, as carried on by employers in that locality or of that 
 class, as a separate industry. 
 
 (8) A Provisional Order made under this section shall be of 
 no force whatever unless and until it is confirmed by Parliament, 
 and if, while the Bill confirming any such Order is pending in 
 either House of Parliament, a petition is presented against 
 the Order, the Bill may be referred to a Select Committee, 
 and the petitioner shall be allowed to appear and ^oppose as 
 in the case of Private Bills, and any Act confirming any Pro- 
 visional Order under this section may be repealed, altered, or 
 amended by a Provisional Order made and confirmed in like 
 manner. 
 
 (9) Any expenses incurred by the Secretary of State in respect 
 of any such Order, Provisional Order, or confirming Bill shall be 
 defrayed out of moneys provided by Parliament. 
 
 (10) Nothing in this section shall affect the rights of a work- 
 man to recover compensation in respect of a disease to which
 
 Workmen's Compensation Appeals. 53 
 
 this section does not apply, if the disease is a personal injury by SECT. 8. 
 
 accident within the meaning of this Act. industrial 
 
 diseases. 
 
 This sect. 8 provides for industrial diseases generally. Subject 
 to its provisions the ordinary practice prevails so far as applic- 
 able. Thus notice must be given and claim made as is usual 
 under the Act. At the same time the very nature of the disease 
 which is to be presumed an accident may necessitate some 
 differentiation. Thus, as regards an ordinary accident, it can 
 and must be fixed as a definite event at a definite time. The 
 happening of the accident in the case of a disease under this 
 section is purely hypothetical and is fixed as follows : By sub- SECT. 8 (l) 
 sect. 1 (iii.) (), the disablement or suspension shall be treated as DUaWement 
 the happening of the accident ; whilst sub-sect. 4 states the date of as accldent - 
 the disablement is to be such as is certified by the certifying 
 surgeon, or if he is unable to so certify, the date when the 
 certificate is given. Under these provisions it may well happen 
 a date may be fixed as the date of the disablement or of the 
 accident six months or more prior to the visit to the surgeon. 
 In fact this did happen in the case of Moore v. Naval Colliery, 
 not yet reported. Here a miner suffered from nystagmus, an 
 affection of the eye caused by working in the pits. As a rule it 
 is much benefited by plenty of sunlight. Hence, when a strike 
 prevented his working, he thought it would get all right, and paid 
 little attention to it. In the end he had to go to the certifying 
 surgeon, and the strike having lasted over six months, the 
 surgeon fixed the date of disablement prior to its commencement. 
 Under these circumstances the Court of Appeal held the man 
 had a most reasonable excuse for neither giving notice nor 
 making a claim within the six months. So had it been necessary, 
 which it was not, they would have undoubtedly held that an 
 applicant was not bound by such artificial date, for the very 
 scheme of the section suggests the possibility of not merely six 
 months, but twelve months, elapsing before the disease fully 
 develops itself. At the same time nothing was said which 
 would warrant a man unnecessarily delaying a visit to the 
 certifying surgeon. So it cannot be repeated too often, it is the
 
 54 
 
 Workmen 1 s Compensation Appeals. 
 
 SECT. 8 (1) 
 
 (iii.) (a). 
 
 Disablement 
 as accident. 
 
 duty of a man making a claim to act reasonably and, as far as 
 possible, promptly, and in every way to facilitate his employer 
 checking the bona fides of his claim. If he has done this he can 
 usually face the Court of Appeal and House of Lords with every 
 confidence.
 
 55 
 
 SECTION 9. 
 APPLICATION TO WOEKMEN IN EMPLOYMENT OF GROWN. 
 
 9. (1) This Act shall not apply to persons in the naval or SECT. 9. 
 military service of the Crown, but otherwise shall apply to work- Application 
 men employed by or under the Crown to whom this Act would ? workmen 
 apply if the employer were a private person : men/Tof^" 
 
 Provided that in the case of a person employed in the private crown, 
 service of the Crown, the head of that department of the Eoyal 
 Household in which he was employed at the time of the accident 
 shall be deemed to be his employer. 
 
 (2) The Treasury may, by warrant laid before Parliament, 
 modify for the purposes of this Act their warrant made under 
 section one of the Superannuation Act, 1887, and notwithstanding 50 & 51 Viet, 
 anything in that Act, or any such warrant, may frame schemes c - 67 - 
 with a view to their being certified by the Registrar of Friendly 
 Societies under this Act. 
 
 Concurrent Contracts. 
 
 In the case of Brandy v. 8.8. " Raphael," [1911] 1 K. B. 376, a SECT. 9 (l). 
 stoker on a merchant vessel was a member of the Naval Eeserve, concurrent 
 
 contracts. 
 
 and received 6Z. a year as a retainer. He met with an accident 
 and claimed that the 61. should be taken into account as earnings 
 under a concurrent contract of service under Schedule I. (2) (b). 
 The arbitrator found in the man's favour, as also the Court of 
 Appeal and the House of Lords. They were of opinion that the 
 only effect of this section is that the Act is not to apply as 
 between the Crown and those in its naval or military service, but 
 that in no way was it intended to modify the relation under this 
 Act between such persons and their ordinary employers. ... So 
 they thought the retainer was a typical case of a payment under 
 a concurrent contract. The fact that the Crown might not be 
 liable in certain cases did not, therefore, mean no other employer 
 should be.
 
 56 
 
 SECTION 10. 
 
 APPOINTMENT AND EEMUNERATION OF MEDICAL KEFEREES AND 
 
 ARBITRATORS. 
 
 SECT. 10. 10. (1) The Secretary of State may appoint such legally 
 
 Appointment qualified medical practitioners to be medical referees for the pur- 
 andremunera- p 0ses O f finis Act as he may, with the sanction of the Treasury, 
 determine, and the remuneration of, and other expenses incurred 
 by, medical referees under this Act shall, subject to regulations 
 made by the Treasury, be paid out of moneys provided by 
 Parliament. 
 
 Where a medical referee has been employed as a medical 
 practitioner in connection with any case by or on behalf of an 
 employer or workman or by any insurers interested, he shall not 
 act as medical referee in that case. 
 
 (2) The remuneration of an arbitrator appointed by a judge 
 of county courts under the Second Schedule to this Act shall be 
 paid out of moneys provided by Parliament in accordance with 
 regulations made by the Treasury. 
 
 medical 
 referees and 
 arbitrators. 
 
 SECTION 11. 
 DETENTION OF SHIPS. 
 
 SECT. 11. 11. (1) If it is alleged that the owners of any ship are liable 
 
 Detention of as such owners to pay compensation under this Act, and at any 
 ships. time that ship is found in any port or river of England or Ireland, 
 
 or within three miles of the coast thereof, a judge of any court 
 of record in England or Ireland may, upon its being shown to 
 him by any person applying in accordance with the rules of the 
 court that the owners are probably liable as such to pay such 
 compensation, and that none of the owners reside in the United 
 Kingdom, issue an order directed to any officer of customs or 
 other officer named by the judge requiring him to detain the 
 ship until such time as the owners, agent, master, or consignee 
 thereof have paid such compensation, or have given security, to 
 be approved by the judge, to abide the event of any proceedings 
 that may be instituted to recover such compensation and to pay 
 such compensation and costs as may be awarded thereon ; and 
 any officer of customs or other officer to whom the order is 
 directed shall detain the ship accordingly. 
 
 (2) In any legal proceeding to recover such compensation, 
 the person giving security shall be made defendant, and the 
 production of the order of the judge, made in relation to the 
 security, shall be conclusive evidence of the liability of the 
 defendant to the proceeding.
 
 Workmen's Compensation Appeals. 57 
 
 (3) Section six hundred and ninety-two of the Merchant SECT. 11. 
 Shipping Act, 1894, shall apply to the detention of a ship under Detention of 
 this Act as it applies to the detention of a ship under that 8hi P 8 - 
 Act, and, if the owner of a ship is a corporation, it shall f or 57 * 58 Vict - 
 the purposes of this section be deemed to reside in the United c * ' 
 Kingdom if it has an office in the United Kingdom at which 
 service of writs can be effected. 
 
 In Panagotis v. " Pontiac " (Owners of), Weekly Notes, 
 1911, 221, a county court judge made an order for the 
 detention of a ship under this section. It not being a British 
 ship, in accordance with the provisions of Schedule II. (4), the 
 owners appealed against the order to the Court of Appeal. 
 Cozens-Hardy, M.R., and Fletcher Monlton, L.J., held that the order 
 for detention is only in aid of the arbitration, and is not part of 
 it, and that therefore the appeal should have been to a Divisional 
 Court. Farwell, L. J., took the view that the words expressly added 
 to the 1906 Act or where he gives any decision or makes any order 
 under this Act are wide enough to cover orders made under that 
 power. Then he added : " Any other construction would cause 
 suitors unnecessary trouble and expense. In a case where the 
 words are at least ambiguous, I think these considerations ought 
 to have weight, and I am of opinion accordingly that the appeal 
 is rightly presented to this Court." It is difficult to follow the 
 reasons given by the M.R. if he is at all correctly reported, but 
 stated slightly differently the case seems clearer. Here was, as 
 we have said under Section 7, a colonial sailor on a colonial ship, 
 belonging to a colonial owner, injured within the jurisdiction of 
 the Act. But as neither Section 7 nor Section 11 have anything 
 whatever to do with such ships or owners, the Act in no way 
 applies to such a case, and what was done was in no way done 
 under it. Notwithstanding this, for the reasons given by 
 Farwell, L.J., the Court of Appeal might well have heard the 
 case, as in the event of either party being dissatisfied with the 
 decision of the Divisional Court it would have to come before 
 them again.
 
 58 
 
 SECTION 12. 
 
 RETURNS AS TO COMPENSATION. 
 
 SECT. 12. 12. (1) Every employer in any industry to which the 
 
 Returns as to Secretary of State may direct that this section shall apply shall, 
 compensation. on or before such day in every year as the Secretary of State may 
 direct, send to the Secretary of State a correct return specifying 
 the number of injuries in respect of which compensation has been 
 paid by him under this Act during the previous year, and the 
 amount of such compensation, together with such other particulars 
 as to the compensation as the Secretary of State may direct, and in 
 default of complying with this section shall be liable on conviction 
 under the Summary Jurisdiction Acts to a fine not exceeding five 
 pounds. 
 
 (2) Any regulations made by the Secretary of State containing 
 such directions as aforesaid shall be laid before both Houses of 
 Parliament as soon as may be after they are made. 
 
 SECTION 13. 
 
 DEFINITIONS. 
 
 SECT. 13. 13. In this Act, unless the context otherwise requires, 
 
 Definitions. " Employer " includes any body of persons corporate or 
 unincorporate and the legal personal representative 
 of a deceased employer, and, where the services of a 
 workman are temporarily lent or let on hire to another 
 person by the person with whom the workman has 
 entered into a contract of service or apprenticeship, the 
 latter shall, for the purposes of this Act, be deemed 
 to continue to be the employer of the workman whilst 
 he is working for that other person ; 
 
 "Workman" does not include any person employed other- 
 wise than by way of manual labour whose remuneration 
 exceeds two hundred and fifty pounds a year, or a 
 person whose employment is of a casual nature and 
 who is employed otherwise than for the purposes of the 
 employer's trade or business, or a member of a police 
 force, or an outworker, or a member of the employer's 
 family dwelling in his house, but, save as aforesaid, 
 means any person who has entered into or works 
 under a contract of service or apprenticeship with 
 an employer, whether by way of manual labour, 
 clerical work, or otherwise, and whether the contract 
 is expressed or implied, is oral or in writing ;
 
 Workmen 1 s Compensation Appeals. 59 
 
 Any reference to a workman who has been injured shall, where SECT. is. 
 the workman is dead, include a reference to his legal Definitions, 
 personal representative or to his dependants or other 
 person to whom or for whose benefit compensation is 
 payable ; 
 
 " Dependants " means such of the members of the workman's 
 family as were wholly or in part dependent upon the 
 earnings of the workman at the time of his death, or 
 would but for the incapacity due to the accident have been 
 so dependent, and where the workman, being the parent 
 or grandparent of an illegitimate child, leaves such a 
 child so dependent upon his earnings, or, being an illegi- 
 timate child, leaves a parent or grandparent so dependent 
 upon his earnings, shall include such an illegitimate child 
 and parent or grandparent respectively ; 
 
 " Member of a family " means wife or husband, father, mother, 
 grandfather, grandmother, step-father, step-mother, son, 
 daughter, grandson, granddaughter, step-son, step- 
 daughter, brother, sister, half-brother, half-sister ; 
 
 "Ship," "vessel," "seaman," and "port" have the same 
 meanings as in the Merchant Shipping Act, 1894 ; 
 
 " Manager," in relation to a ship, means the ship's husband 
 or other person to whom the management of the ship is 
 entrusted by or on behalf of the owner ; 
 
 " Police force " means a police force to which the Police Act, 53 & 54 Viet. 
 1890, or the Police (Scotland) Act, 1890, applies, the City gg 4 ^ vict 
 of London Police Force, the Eoyal Irish Constabulary, and c . 67. 
 the Dublin Metropolitan Police Force ; 
 
 " Outworker " means a person to whom articles or materials 
 are given out to be made up, cleaned, washed, altered, 
 ornamented, finished, or repaired, or adapted for sale, in 
 his own home or on other premises not under the control 
 or management of the person who gave out the materials 
 or articles ; 
 
 The exercise and performance of the powers and duties of a 
 local or other public authority shall, for the purposes of 
 this Act, be treated as the trade or business of the 
 authority ; 
 
 "County court," "judge of the county court," "registrar of 
 the county court," " plaintiff," and " rules of court," as 
 respects Scotland, mean respectively sheriff court, sheriff, 
 sheriff clerk, pursuer and act of sederunt. 
 
 " WORKMAN." 
 
 Limit of 250 a Year. 
 
 In this definition it will be seen the word used is remuneration. SECT. is. 
 In the Schedule the word used is earnings. Is remuneration a Defimtlons -
 
 60 
 SECT. 13. 
 
 SECT. 13. 
 
 service. 
 
 Workmen's Compensation Appeals. 
 
 word of narrower or more comprehensive signification or is it to 
 ^ e re g arc ^ e ^ as synonymous with it ? In Schedule L, par. 2 (a), 
 the words are obviously used interchangeably, and are therefore 
 to be regarded as synonymous. Therefore, in the case of a ship 
 steward, the Court held that in his remuneration must be 
 included not only his actual salary but the profits he made by 
 the sale of whiskey and the extra wages he received when 
 voyages were satisfactorily completed (Skailes v. Blue Anchor 
 Line, [1911] 1 K. B. 360). In this they followed Penn v. Spiers 
 and Pond, [1908] 1 K. B. 766, where it was held that tips 
 received by a waiter in a railway restaurant car had to be 
 included in his earnings, and that it was for the arbitrator to 
 estimate their amount as well as he could, and Dothie v. 
 Macandrew, [1908] 1 K. B. 803, where the same rule had been 
 applied to board and lodging. 
 
 In Knott v. Tingle Jacobs, 4 B. 55, the rule as to tips was 
 extended still further so as to include tips which a carman 
 received from his employer's customers for services specially 
 rendered them and entirely outside his contract with his master. 
 See further under Schedule. I. (2) (a) under sub-heading Average 
 weekly earnings. 
 
 "Contract of Service." 
 
 " Workman" with the exception specified, means any person 
 w ^ k &s en ^ ere d into a contract of service with an employer as 
 stated. 
 
 The contract of service is such a contract as establishes the 
 relation of master and servant, and is distinguished from a 
 contract for services, say, as between a solicitor and his client. 
 In Hughes v. Postlethivaite, 4 B. 105, the arbitrator found such 
 contract of service wanting. Here a vessel was sailed under the 
 sharing system. The captain had authority to trade between 
 any ports he pleased, the owner having no control in this matter. 
 The owner took one half the gross receipts after deducting the 
 first charges, etc., and the captain the remainder, out of which 
 he paid the crew's wages. On these facts the arbitrator found
 
 Workmen's Compensation Appeals. 61 
 
 the owner and captain co-adventurers, and the Court of Appeal SECT. 13. 
 held there was evidence on which he could so find. ^ontractof 
 
 The question of whether the relation was that of master and service - 
 servant or bailor and bailee came up in a case where a taxi-cab 
 driver wanted to recover compensation from its owners, who lent 
 it out to him on hire. Both sides produced evidence in their 
 own favour, and the arbitrator found for the owners, and it was 
 held that there was evidence on which he could legally do so. The 
 relation between the parties was in no way affected by the fact 
 that as regards third parties the driver was by Act of Parliament 
 to be deemed the servant of the proprietor. In fact, if any 
 argument were to be drawn from this fact at all it would be in 
 favour of the owner. For if the driver were the servant of the 
 owner no Act would have been needed, and if he were not, the 
 Act would only put him in the position of a servant so far and 
 no further than it expressly stated (Bates-Smith v. General Motor 
 Co., 4 B. 249). 
 
 Contract of Service. Employment found from Philanthropic 
 
 Motives. 
 
 It will be remembered that the Act is limited to workmen, SECT. 13. 
 and apart from the fact that it is not to include any person 
 whose employment is of a casual nature, " workman " is to service, 
 mean by this definition any person who has entered into or 
 works under a contract of service . . . with an employer, etc. 
 The meaning of " workman " has already been involved in several 
 cases where employment has been found from philanthropic 
 motives, and has again come under discussion in the case of 
 MacGillivray v. The Northern Counties Institute for the Blind, 
 4 B. 429, which is a charitable institution to promote the 
 temporal and spiritual well-being of blind persons residing in 
 the northern counties. MacGillivray had been a pauper, but on 
 the institution receiving him as an inmate the authorities paid 
 it 4s. a week for his maintenance and 4.1. a year extra for his 
 clothing. In addition it received 20Z. a year from a Donald 
 Eraser Bequest Fund on account of this man. The institute
 
 62 Workmen's Compensation Appeals. 
 
 SECT. 13. gave the man board and lodging and 5s. a month, and 
 
 contrac^f on a year's working were a few pounds out of pocket on his 
 
 . account. The man was injured and sought compensation. For 
 
 Philanthropic 
 
 institution, him it was argued that the contract between the parties was one 
 of service and that the essentials of a contract of service, 
 freedom of contract, payment and power of selection and dis- 
 missal were present in his case. 
 
 For the institution it was argued the relationship was based on 
 charity and not on that of master and servant. The institute did 
 not carry on a trade or business in the sense of the statute, and 
 the injured man was not a workman earning wages. His status 
 was that of an inmate of a charitable institution, in which he 
 had to perform certain duties and was given certain privileges, 
 in part provided by the benevolence of other people. The 
 arbitrator found for the institution, but the Sessions Court 
 reversed his decision. They found the man was employed under 
 a contract of service. " He was not bound to go to the institute, 
 and the institute was not bound to receive him. He stipulated 
 that he would give his services for what they were worth, and 
 they in return stipulated they would give him board, lodging, 
 clothing, and 5. a month in money " : Provided which the 
 Court did not add they received on his account from outside 
 charitable sources 841. 8s., in addition to his services. 
 
 This seems a most doubtful conclusion. The contract of 
 service referred to is that contract which establishes the relation- 
 ship of master and servant in the popular sense and usually 
 where there is a mutual interchange of advantages of an 
 approximately equal value. Here such bargain was entirely 
 wanting. Outsiders paid the institution 341. 8s. to keep the 
 man, and even then he was a loss to them. What were his 
 earnings ? Was there to be included in his earnings board and 
 lodging for which third parties had to find the money ? Of 
 course he could go if he chose, equally he could be sent away. 
 So could a pensioner given a house rent free and paid 5s. a 
 month for keeping the garden tidy. But such are not the only 
 or conclusive tests of a contract of service, and here the
 
 Workmen's Compensation Appeals. 63 
 
 relationship was one founded on charity and charity alone, SECT. is. 
 and the institution would no more have thought of employing ^Lco^tracUrf 
 him in a pure way of business than they would have expected 8ervice - 
 to make a profit out of him had they done so. 
 
 "WORKMAN" IN CASE OP DEATH TO INCLUDE DEPEN- 
 DANTS, ETC. 
 
 Eights not Derivative. 
 
 In a series of cases it has been decided that a dependant's SECT. is. 
 
 right to compensation is not a derivative right but one inde- " W 
 
 to include 
 
 pendent of the rights of the injured workman. In Howell v. dependants 
 
 Right not 
 Bradford, 4 B. 203, a settlement made under the Employers' derivative. 
 
 Liability Act, 1880, between an employer and his workman 
 was set aside as not bond fide at the instance of the dependants 
 (see also under Section 1 (2) (&) ), and in Jobson v. Cory, 4 B. 
 284, where an arbitrator had actually ended compensation 
 on the ground the man had recovered, it was yet held that 
 the dependants were not bound by such finding, but were entitled 
 to have it decided as a fact whether the man had or had not died 
 from the accident. As between them and the employers the 
 matter was not res judicata that the man had recovered. 
 
 " DEPENDANTS." 
 
 Dependency a Question of Fact. 
 
 To fully appreciate Keeling v. New Monckton Collieries, [1911] SECT. 13. 
 
 1 K. B. 250, which deals with the right to compensation of wives " Depen- 
 
 dants " 
 
 separated from their husbands, one must have regard to the earlier Question of 
 
 fact. 
 
 decisions. At first there was a disposition to interpret the Act with 
 a wide philanthropy which is not quite so general at present. 
 Thus, to give a woman 800Z. instead of 250Z., a sympathetic Court 
 found her dependent on her husband and not on a son who con- 
 tributed to her support (Senior v. Fountains, [1907] 2 K. B. 563). 
 This view of the law suited to a nicety the employers in the next 
 case. Here a mother wanted to recover for a son she had lost who 
 had contributed to her support. The Court, bound by their previous
 
 64 
 
 Workmen's Compensation Appeals. 
 
 SECT 13. 
 
 - Depen- 
 dants" 
 Question of 
 fact. 
 
 decision, had to hold that as she was dependent on her husband 
 in law she could not be dependent on her son in fact (M'Clean v. 
 Moss Bay Iron Co., [1909] 2 K. B. 521). But employers were 
 not long to enjoy this immunity, and it was but a few short 
 weeks before a unanimous House of Lords held dependency 
 was a question of fact, and on this basis gave judgment for a 
 woman who in one terrible disaster had lost both husband and 
 sons (Hodgson v. West Stanley Colliery Owners, [1910] A. C. 229). 
 But once more in this case of Keeling the Court of Appeal have 
 held dependency is in law and have given a woman compensation 
 when for twenty-two years she had been separated from her 
 husband and during the whole of the time had never received a 
 penny from earnings upon which she was deemed to have been 
 dependent. In giving judgment Cozens-Hardy, M.E., distin- 
 guished this case from Hodgson's Case on the ground that the 
 only point decided by the House of Lords in that case was that 
 a woman who was dependent in fact and law on her husband 
 could also be dependent in fact on her two sons as well. 
 The presumption of dependency in law which had been laid down 
 in a long series of cases in the Court of Appeal was not affected 
 by the decision of the point involved, and as regards the judg- 
 ments, so far as they dealt with more than such point, they were 
 simply obiter, very instructive no doubt, but in no way material. 
 Certainly it seems a grave injustice and doubtful law that an 
 employer should be made responsible for a wife to whom a husband 
 has never given a penny, for twenty-two years, and who had never 
 been made to. But the point remains open and can now only be 
 settled by an authoritative decision in the House of Lords. 
 
 This has now been done and the decision of the Court of 
 Appeal has been again reversed. Dependency is a question of 
 fact and is not to be founded on a presumption of law. 
 
 How far Question of Fact affected by Presumption of Law. 
 
 With this decision we might conclude, the law was 
 now simple and settled. But this is far from being the 
 case. To entirely ignore the legal presumption is to
 
 Workmen's Compensation Appeals. 65 
 
 err as much on one side of the line as to found dependency SECT. is. 
 on it is to err on the other. Where is the line to be drawn. In 
 Keeling'' 's Case the facts were so obviously over the line that no 
 nice discrimination was needed, but it is equally clear that 
 the Lords did not lay down the rule that the legal presump- 
 tion is not to be considered at all. How far must it be 
 considered ? First, what are the exact words to be construed. 
 "Dependants " means such of the members of the workman's family 
 as were wholly or in part dependent upon the earnings of the 
 workman at the time of his death, etc. 
 
 Here, in the first place, it would be well to observe one 
 or two trifling words. The first of these is the word " were." It is 
 not " are " or " will be," but at the time of the death actually were 
 dependent, and dependent upon what ? the legal liability ? the 
 obligations of the husband ? the right to be maintained, etc. ? No ! 
 but upon the earnings of the husband. Here, again, note the 
 dependency is upon, not the husband, but the earnings of the 
 husband. Here then we have, as the Lords say, a simple 
 question of fact. At the time of the death was the dependant 
 dependent upon the actual earnings of the deceased. We are 
 not entitled to speculate what would happen or might happen 
 in the future ; the only facts to be considered are those existing 
 at the time of death. At some subsequent date the wife might 
 enforce her rights and become in fact actually dependent on 
 the money she then recovered, but this is a possibility that is 
 not to be taken into account. We are limited to the time of 
 death. Then how can the presumption of law help her if 
 in fact she is at such time receiving nothing. One certain 
 way suggests itself. A woman may be deserted, and at the 
 time of the death may be actively prosecuting her right to 
 maintenance, and then, as Lord Loreburn, L.C., concisely puts 
 it : " The fact that a legal duty lay upon the workman to 
 provide maintenance is an element to be considered, no doubt, 
 because people usually count upon getting what they are 
 entitled to get." Therefore if an arbitrator was of opinion 
 that a woman was enforcing her claim and there was a 
 
 W.C.A. 5
 
 66 
 
 Workmen's Compensation Appeals. 
 
 SECT. 13. 
 
 " Depen- 
 dants " 
 Question of 
 fact. 
 
 reasonable prospect of her doing so with success, he might 
 well find that so far she was dependent on her husband's 
 earnings, and she would not be less dependent because she 
 had to collect them by legal process. Then, to go another 
 step, suppose at the time of death she had taken no active 
 step to enforce her rights, but clearly had not the slightest 
 intention of abandoning them. What the result would be in 
 such a case would clearly depend on the actual findings of 
 fact by the arbitrator. If the man was in receipt of earnings 
 and the wife by virtue of her status was in all reasonable pro- 
 bability likely to actually benefit by those very earnings, 
 he could well find she was dependent on them. Can he go 
 further ? It is difficult to see how. So the same considerations 
 apply when a wife is compelled to leave her husband by his 
 conduct. When, however, a husband and wife part for their 
 mutual benefit, say, or when he goes to find work, more difficult 
 questions arise. Apart from legal presumption, it might well 
 be held that a good husband who had always supported his 
 wife would continue to do so. Then if at the time of his 
 death he had got work but had not actually sent money to 
 her, it might well be inferred he would have done so as soon 
 as he could. But suppose for some time he had only been 
 receiving just enough to keep himself. Grant his will to 
 help his wife to the utmost still it would be a travesty of 
 language to find her dependent on earnings of which she had 
 never received a penny, and as regards the possibility they 
 ought to be greater in the future this could not be taken into 
 consideration. 
 
 Dependency of Child also Question of Fact. 
 
 In two recent cases the Court of Appeal have given full weight 
 to the decision of the Lords in Reeling's Case. In Lee v. 
 " Bessie" (Owners of), W. N., 1911, 222, a seaman was drowned, 
 leaving a wife and two children. They had been married in 
 1898, and lived together until 1903, when she left him and took 
 their children with her, and went to live with a man named
 
 Workmen's Compensation Appeals. 67 
 
 Gold, who supported them, and by whom she had three SECT. is. 
 illegitimate children ; and in Polled v. Great Northern Railway, dants 6 " 
 not yet reported, where a wife more or less rightly refused to J* stlon of 
 live with her husband, and left him and lived apart with their 
 one little girl. In both these cases the rights of the wife were 
 held governed by the decision, but as regards the children, more 
 difficult questions remained to be disposed of, viz., whether in 
 fact they were dependent upon their father. The decision of the 
 Lords in Reeling's Case now brings the law of England into line 
 with that of Scotland, which has never recognised the theory of 
 dependency in law further than the right it gave of being 
 reduced to dependency in fact. This was the view taken in 
 Briggs v. Mitchell, 48 S. L. E. 606, where an illegitimate child 
 had been handed over to the care of a Mrs. R., who practically 
 entirely provided for it. On the death of its mother it was 
 sought to make the employers responsible for compensation, but 
 it was held it was not dependent on its mother, and that they 
 were not liable. 
 
 "MEMBER OF A FAMILY." 
 
 In McDougall v. McDougall, [1911] S. C. 26, a son worked with SECT 13. 
 his father exactly as for any outside employer, and paid him so DefinitlonB - 
 much a week for lodging with him. It was still held he was not 
 a workman within the Act. 
 
 52
 
 68 
 
 SECTION 14. 
 SPECIAL PROVISIONS AS TO SCOTLAND. 
 
 SECT. 14. 14. In Scotland, where a workman raises an action against 
 
 Special pro- his employer independently of this Act in respect of any injury 
 
 visions as to caused by accident arising out of and in the course of the 
 
 employment, the action, if raised in the sheriff court and con- 
 
 43 & 44 Viet, eluding for damages under the Employers' Liability Act, 1880, 
 
 c - ^ or alternatively at common law or under the Employers' Liability 
 
 Act, 1880, shall, notwithstanding anything contained in that Act, 
 
 not be removed under that Act or otherwise to the Court of 
 
 Session, nor shall it be appealed to that court otherwise than by 
 
 appeal on a question of law ; and for the purposes of such appeal 
 
 the provisions of the Second Schedule to this Act in regard to 
 
 an appeal from the decision of the sheriff on any question of 
 
 law determined by him as arbitrator under this Act shall apply. 
 
 SECTION 15. 
 PROVISIONS AS TO EXISTING CONTRACTS AND SCHEMES. 
 
 SECT. 15 (1). 15. (1) Any contract (other than a contract substituting the 
 Provisions as provisions of a scheme certified under the Workmen's Compensa- 
 to existing tion Act, 1897, for the provisions of that Act) existing at the 
 scheme's 18 ' commencement of this Act, whereby a workman relinquishes 
 60 & 61 Viet, any right to compensation from the employer for personal injury 
 c. 37. arising out of and in the course of his employment, shall not, 
 
 for the purposes of this Act, be deemed to continue after the time 
 at which the workman's contract of service would determine if 
 notice of the determination thereof were given at the commence- 
 ment of this Act. 
 
 (2) Every scheme under the Workmen's Compensation Act, 
 1897, in force at the commencement of this Act shall, if re- certified 
 by the Registrar of Friendly Societies, have effect as if it were a 
 scheme under this Act. 
 
 (3) The Registrar shall re-certify any such scheme if it is 
 proved to his satisfaction that the scheme conforms, or has been 
 BO modified as to conform, with the provisions of this Act as to 
 schemes. 
 
 (4) If any such scheme has not been so re-certified before the 
 expiration of six months from the commencement of this Act 
 the certificate thereof shall be revoked.
 
 69 
 
 SECTION 16. 
 COMMENCEMENT AND EEPEAL. 
 
 16. (1) This Act shall come into operation on the first day of SECT. 16 (i). 
 July nineteen hundred and seven, but, except so far as it relates Commence- 
 to references to medical referees, and proceedings consequential meat and 
 thereon, shall not apply in any case where the accident happened repe ' 
 before the commencement of this Act. 
 
 (2) The Workmen's Compensation Acts, 1897 and 1900, are 60 & 61 Viet, 
 hereby repealed, but shall continue to apply to cases where the gg 3 ?'^ v - t 
 accident happened before the commencement of this Act, except c 22. 
 to the extent to which this Act applies to those cases. 
 
 SECTION 17. 
 SHORT TITLE. 
 17. This Act may be cited as the Workmen's Compensation SECT. 17. 
 
 Act, 1906. Short title.
 
 70 
 
 SCHEDULES. 
 
 FIRST SCHEDULE. 
 SCALE AND CONDITIONS OF COMPENSATION. 
 
 SCHED. I. (1) (1) The amount of compensation under this Act shall be 
 
 (a) where death results from the injury 
 
 (i.) if the workman leaves any dependants wholly 
 dependent upon his earnings, a sum equal to his earnings 
 in the employment of the same employer during the 
 three years next preceding the injury, or the sum of one 
 hundred and fifty pounds, whichever of those sums is the 
 larger, but not exceeding in any case three hundred 
 pounds, provided that the amount of any weekly pay- 
 ments made under this Act, and any lump sum paid in 
 redemption thereof, shall be deducted from such sum, 
 and, if the period of the workman's employment by the 
 said employer has been less than the said three years, 
 then the amount of his earnings during the said three 
 years shall be deemed to be one hundred and fifty-six 
 times his average weekly earnings during the period of 
 his actual employment under the said employer ; 
 
 (ii.) if the workman does not leave any such dependants, 
 but leaves any dependants in part dependent upon his 
 earnings, such sum, not exceeding in any case the 
 amount payable under the foregoing provisions, as may 
 be agreed upon, or, in default of agreement, may be 
 determined, on arbitration under this Act, to be reason- 
 able and proportionate to the injury to the said 
 dependants ; and 
 
 (iii.) if he leaves no dependants, the reasonable expenses 
 of his medical attendance and burial, not exceeding ten 
 pounds ; 
 
 (6) where total or partial incapacity for work results from the 
 injury, a weekly payment during the incapacity not 
 exceeding fifty per cent, of his average weekly earnings 
 during the previous twelve months, if he has been so 
 long employed, but if not then for any less period during 
 which he has been in the employment of the same 
 employer, such weekly payment not to exceed one 
 pound : 
 
 Provided that 
 
 (a) if the incapacity lasts less than two weeks no compensation 
 shall be payable in respect of the first week ; and 
 
 (6) as respects the weekly payments during total incapacity of 
 a workman who is under twenty-one years of age at the 
 date of the injury, and whose average weekly earnings
 
 Workmen's Compensation Appeals. 71 
 
 are less than twenty shillings, one hundred per cent. SCHED. I. (l). 
 shall be substituted for fifty per cent, of his average 
 weekly earnings, but the weekly payment shall in no 
 case exceed ten shillings. 
 
 DEATH EESULTS. 
 
 Assessment of Compensation. 
 
 Tamworth Colliery Co. v. Hall, 4 B. 313, A. C., deals with an SCHED. I. (1) 
 extremely difficult and important point, the assessment of the Assessment of 
 compensation payable to partial dependants. Partial "* 
 
 The amount payable to those wholly dependent is definitely de P endants - 
 fixed, and is not in the discretion of the arbitrator ; that payable 
 to partial dependants has to be a sum reasonable and proportionate 
 to the injury to the said dependants. In assessing such compensation 
 a not unusual custom has been to inquire what the actual benefit 
 or allowance received has been, to reduce it to a weekly average, 
 and then to multiply that weekly average by 156. This is done by 
 analogy to the direction for obtaining the amount in the case of 
 total dependency. The first case to break into this fairly general 
 practice was that of Osmond v. Campbell and Harrison, [1905] 2 
 K. B. 852. Here a widow, earning Is. lid. a week by laundry 
 work, lost her husband by an accident. Wholly dependent she 
 would have been entitled to 1561. As, however, she was only 
 partially dependent, the employer claimed she was only entitled 
 to the capital value of the amount of actual benefit she received, 
 which would be a pound a week less the expense of her husband's 
 keep. The arbitrator, however, awarded her 150Z., and the Court 
 of Appeal held he had not misdirected himself in so doing. He 
 had given effect to the fact of partial dependency by deducting 
 the odd pounds. It does not seem that any rule of law or pre- 
 sumption of law is to be deduced from this case. It was simply a 
 question of fact, Had the arbitrator given a sum reasonable and 
 proportionate to the injury ? and the Court held he had. This 
 case has been followed by others, with the result that in many 
 instances the compensation has been assessed on the basis of 
 total dependency with a sum deducted on account of the inde- 
 pendent income. But in the case of the Tamworth Colliery Co.
 
 72 Workmen's Compensation Appeals. 
 
 SCHED. i. (i) the Court of Appeal were inclined to press Osmond v. Campbell 
 Assessment of B ^l further. Here a lad earned 6s. lid. per week, which he paid 
 -prtTa a i ti0n to his father - Further, he helped him in his trade of a barber, 
 dependants, which was worth another 6s. a week. The arbitrator found the 
 father was not dependent on such earnings of his boy, as it cost 
 him more than 6s. lid. to maintain him, and the value of his 
 services could not be taken into account. If they were earnings, 
 then pro tanto as a member of the family he was not a workman 
 within the Act. The Court of Appeal (Farwell, L.J., dissenting) 
 held the case was governed by Osmond v. CampbeU, and that the 
 cost of maintenance ought not to have been deducted. This made 
 it unnecessary to inquire into the nature of the boy's service. 
 It is by no means clear that Osmond's Case is an authority for 
 this proposition unless at the same time a due deduction be also 
 made for the capital value of the independent income. Here, 
 however, this would have more than swamped the amount 
 receivable, and so it is best to regard Osmond's Case as simply 
 holding that on its own particular facts the arbitrator directed 
 himself correctly. 
 
 Farwell, L.J., practically agreed with the views of the arbitrator 
 and said : " There are two questions to be determined in cases 
 of this sort. First, is the claimant a dependant at all, and 
 secondly, if so is he or she wholly or partly so dependent ? Both 
 are questions of fact. . . . There is no room for legal presump- 
 tion at all. Lord Halsbury, in the case of Main Colliery Co. v. 
 Davies, [1900] A. C. at p. 361, says, ' Now my Lords as to that 
 question I do not think the legislature ever intended there should 
 be any sharp definite line drawn, but that in each case the 
 question must turn upon whether there is or is not what the 
 legislature has described as a condition of dependency as being 
 the test whether or not a person is entitled to any compensation 
 by reason of death.' I understand the House to have decided in 
 the latter case, that a father whose child does in fact contribute 
 money to the common fund out of which the family is maintained 
 may be dependent on the earnings of such child, not that he 
 must be so. I cannot think that a father who receives his boy's
 
 Workmen's Compensation Appeals. 73 
 
 wages of, say, 3s. a week, and expends 6s. a week on keeping him, SCHED. I. (i) 
 can, without doing violence to the English language, be said to Assessment of 
 be dependent on the earnings of such boy. In truth the boy ^ 
 depends on the father, although partially only, not the father on 
 the boy." So far the House of Lords accepted both the con- 
 clusions and arguments of the learned judge. But in dealing 
 with the value of his services at home they took a somewhat 
 different view, conceding that in themselves they could not be 
 reckoned as part of the earnings, yet if the boy gave his father 
 services, such services might be set against his maintenance, and 
 so leave free his other earnings to increase the family fund. 
 " There is," said the Lord Chancellor, " no rule of law that I know 
 of to prevent the county court judge from looking at the whole 
 of the facts ; there is no rule of law to say that he must so marshal 
 the receipts and outgoings as to set off the whole of the main- 
 tenance against the earnings, and so to negative the fact of the 
 dependency." The point was apparently originated by Lord 
 Kobson, who well said, " Surely the value of the boy's assistance to 
 his father in the business ought to be taken into account, not as 
 earnings but as lessening the actual cost of the boy to his father." 
 On these lines the case was remitted to the county court for the 
 arbitrator to assess the compensation payable as a question of 
 fact, with directions he was to have regard to what the boy paid 
 the father, what the value of his services were, and how much his 
 keep cost. 
 
 Does this overrule Osmond's Case and say the arbitrator there 
 found incorrectly in not having deducted the expenses of the 
 husband's keep, or is it simply a case of other facts, other con- 
 siderations ? The arbitrator has simply to award a sum reason- 
 able and proportionate to the injury. That is the law and all 
 the law. If he thinks there is practically no difference between 
 a widow earning Is. lid. a week in a laundry and a widow 
 earning nothing, and thinks she ought to have as much as 
 if she were totally dependent, can he be said to have misdirected 
 himself if he admits such considerations weighed with him. The 
 truth is, every method now in use for assessing such compensation
 
 74 Workmen's Compensation Appeals. 
 
 SCHED. i (l) pressed to its logical limit may prove absurd in working. 
 Assessment of Suppose a mother receives 10s. a week from a son earning 2. 
 
 -Partial" 011 a week> Then in case of his death ' if wholly dependent, she 
 dependants. W0 uld receive 300Z. But suppose she was earning Is. lid. in a 
 laundry, is it not ridiculous to even suggest she should receive 
 so little as 10s. X 156, or less than SOL And this amount 
 would be the same whether she were earning Is. lid. or lls. Id. 
 Equally absurd is it to say that a mother who has never received 
 more than 2s. 6d. a week from a son, and is never likely to, is 
 entitled to receive the full 300Z., less merely the capital value of 
 her independent income, which if Is. lid. a week might be again 
 assessed at only 61. To arrive at an amount reasonable and pro- 
 portionate to the in jury the arbitrator must have regard to all the 
 facts, and no sounder reason for an award seems to have been given 
 than that by Judge Parry in Turner v. Miller, 3 B. 305, when 
 awarding 125Z., arrived at by no particular method : " I con- 
 sidered that the son had been a substantial contributor to the 
 family for many years, and would have continued to be so had 
 he lived, and assessed the money to be paid on that basis." 
 Here, then, he took into consideration the further fact in 
 practice the most material of all the likelihood of the allowance 
 being continued. In this he seems clearly justified. Of course 
 this likelihood must be based on the facts as existing at the time 
 of the death and would be independent of anything which subse- 
 quently happened, e.g., the death of the mother soon after her 
 son, who, had he survived, would undoubtedly have made no 
 further payments to those claiming through her. 
 
 " WHERE . . . PARTIAL INCAPACITY RESULTS." 
 Weekly Payment. 
 
 SCHED. I. (l) The average weekly earnings prior to the accident is fixed once 
 and for all, and is an invariable amount. The wages subse- 
 quently earned may naturally vary. To give effect to this, and 
 to save the parties coming before him for continual re-adjustment 
 of the amount, the arbitrator in Newhouse v. Johnson, not yet 
 reported, fixed the weekly payment at two-thirds of the difference
 
 Workmen's Compensation Appeals. 75 
 
 between 11. and what the man actually earned in any given SCHED. I. (i) 
 week, with a minimum of 10s. per week. However convenient Partial 
 
 and simple this award , it infringed one of the cardinal prin- incapacity- 
 Weekly pay- 
 ciples of the Act that an arbitrator cannot dive into futurity, ment. 
 
 but must decide every case on evidence actually before him. 
 Hence he must fix a definite amount even if it has to be varied 
 from time to time on a change of circumstances taking place. 
 
 (2) For the purposes of the provisions of this schedule relating SCHED. I. (2). 
 to " earnings " and " average weekly earnings " of a workman, 
 the following rules shall be observed : 
 
 (a) average weekly earnings shall be computed in such manner 
 as is best calculated to give the rate per week at which 
 the workman was being remunerated. Provided that 
 where by reason of the shortness of the time during 
 which the workman has been in the employment of his 
 employer, or the casual nature of the employment, or 
 the terms of the employment, it is impracticable at the 
 date of the accident to compute the rate of remunera- 
 tion, regard may be had to the average weekly amount 
 which, during the twelve months previous to the acci- 
 dent, was being earned by a person in the same grade 
 employed at the same work by the same employer, or, 
 if there is no person so employed, by a person in the 
 same grade employed in the same class of employment 
 and in the same district ; 
 
 (&) where the workman had entered into concurrent contracts 
 of service with two or more employers under which he 
 worked at one time for one such employer and at another 
 time for another such employer, his average weekly 
 earnings shall be computed as if his earnings under all 
 such contracts were earnings in the employment of 
 the employer for whom he was working at the time of 
 the accident ; 
 
 (c) employment by the same employer shall be taken to mean 
 
 employment by the same employer in the grade in which 
 the workman was employed at the time of the accident, 
 uninterrupted by absence from work due to illness or 
 any other unavoidable cause ; 
 
 (d) where the employer has been accustomed to pay to the 
 
 workman a sum to cover any special expenses entailed 
 on him by the nature of his employment, the sum so 
 paid shall not be reckoned as part of the earnings. 
 
 AVERAGE WEEKLY EARNINGS. Tips and Extras. 
 
 The question of how far tips and extras were to be included SCHED. I. (2) 
 
 (a).
 
 76 Workmen's Compensation Appeals. 
 
 SCHED. I. (2) in remuneration, so as to make a man's earnings exceed 250Z., 
 
 ( a )- 
 Average was i nv l ve d in Skailes v. Blue Anchor Line, [1911] 1 K. B. 360. 
 
 weekly p or a discussion of this, see ante, under Section 13, sub-heading 
 
 earnings- 
 Tips and Workman. 
 Extras. 
 
 Knott v. Tingle Jacobs, 4 B. 55, has also been there referred to 
 
 showing what further tips are to be considered as earnings. Here 
 a carman received tips from his employer's customers for services 
 specially rendered them, but outside his contract with his master. 
 As a matter of theory possibly practice as well the knowledge 
 that such tips were receivable clearly made the engagement that 
 much more valuable, and without them the presumption would 
 be the wages would have had to be so much higher. 
 
 Concurrent Contracts. 
 
 SCHED. I. (2) How far a reservist's pay in the Navy could be treated as 
 Avera e received under a current contract was lengthily discussed in 
 
 weekly Brandy v. S.S. " Raphael," [1911] 1 K. B. 376 ; for which see 
 earnings 
 
 Concurrent under Section 9. 
 
 contracts. 
 
 Grade of Employment. 
 
 SCHED i. (2) The question of grade was involved in the Scotch case of 
 Avera e Bdbcock and Wilcoxv. Young, [1911] S. C. 406, where a man who 
 weekly had worked as boilermaker and then became a labourer was held 
 
 earnings 
 
 Grade of to be only entitled to compensation on the basis of his earnings 
 
 employment. 
 
 as a labourer. 
 
 SCHED. i. (3). (3) In fixing the amount of the weekly payment, regard shall 
 be had to any payment, allowance, or benefit which the workman 
 may receive from the employer during the period of his incapacity, 
 and in the case of partial incapacity the weekly payment shall in 
 no case exceed the difference between the amount of the average 
 weekly earnings of the workman before the accident and the 
 average weekly amount which he is earning or is able to earn in 
 some suitable employment or business after the accident, but 
 shall bear such relation to the amount of that difference as under 
 the circumstances of the case may appear proper. 
 
 REGARD SHALL BE HAD. Overlapping Benefits under M. S. A. 
 
 SCHED. I. (3). i n Kempson v. "Moss Rose " (Owners of), 4 B. 101, an injured 
 Regard shall 
 be had.
 
 Workmen's Compensation Appeals. 77 
 
 seaman, on March 9, was taken to the hospital and kept there SCHED. I. (3). 
 
 until June 16. Under the erroneous idea his employers were ? e ? ar j d sha11 
 
 be had Over- 
 liable under the Merchant Shipping Act, 1894, the captain lapping 
 
 benefits, 
 promised they would be responsible for his expenses there. After 
 
 some correspondence with the hospital authorities the employers, 
 in settlement of their claim for 181. 8s., paid them 91. 8s. 9d., 
 which was the full amount of compensation due to the man 
 from the date of his accident until he left the hospital. 
 
 The man then claimed compensation for the same period, and 
 the arbitrator found that, as the payments had been made without 
 his knowledge or concurrence, regard should not be had to such 
 payments in assessing the compensation due. On the other 
 hand, the Court of Appeal thought it one of the clearest cases 
 ever brought before them, and that it should. The very end of 
 the clause was to enable an employer to help his injured servant 
 without running any risk of his sympathetic action rendering 
 him liable to pay double compensation. The argument for the 
 seaman had been advanced that it was not right that employers 
 should be able to pay away without his consent all or more than 
 his compensation, possibly only ostensibly for his benefit. To 
 this the reply was that such payments were not necessarily to be 
 deducted, but only that the arbitrator must have regard to the 
 fact that the workman has received a benefit from his employer 
 during the course of his incapacity. 
 
 McDermott v. " Tintoretto," [1911] A. C. 35, was also a 
 case arising out of an accident to a seaman. 
 
 By sect. 7 (1) (e) it is enacted : The weekly payment shall 
 not be payable in respect of the period during which the owner 
 of the ship is under the Merchant Shipping Act, 1894, as 
 amended, etc., liable to defray the expense of maintenance of the 
 injured master, seaman or apprentice. Under this section the 
 owners claimed they were not liable to pay compensation for such 
 period, and then claimed that regard should be had for all the 
 payments they had made on the seaman's behalf during the self- 
 same period. The only amazing fact is that it required the 
 House of Lords to decide that all that was intended was that the
 
 78 Workmen's Compensation Appeals. 
 
 SCHED. I. (3). seaman should not receive overlapping benefits. See also under 
 sect. 7 (1) 0). 
 
 THE WEEKLY PAYMENTS SHALL IN NO CASE EXCEED. 
 
 SCHED. I. (3). On this point an excellent judgment was given by his Honor 
 Judge Lumley Smith. A man who had been earning 32s. 6d. 
 a week lost his hand, and got light employment at 25s. a week. 
 He claimed as compensation the difference, 7s. 6d. The 
 arbitrator awarded 8s. 9d., saying, " The Act says that regard 
 is to be had to the difference between what he has now and what 
 he had before. I think the idea of the Act is that half the loss 
 should be awarded him. As long as he was earning nothing he 
 got half 32s. 6d. I do not think it an absolute rule, but the 
 common sense of it is that, having got 25s., now he can have half 
 the difference . . . and I shall award 3s. 9d. I think the inten- 
 tion of the Act is that each party should sustain a certain amount 
 of monetary loss." The Court of Appeal held he had not bound 
 himself by any rule of law, but had correctly exercised his dis- 
 cretion, and approved what he had done (Humphreys v. City of 
 London Electric Lighting Co., 4 B. 275). 
 
 Circumstances at Time of Eeview to be Considered. 
 
 SCHED. I. (3). Here, however, we must note the further most important decision 
 & V6U in Bevan v - Energlyn Collieries, W. N., 1911, 206, as to the 
 
 estimated on assessment of this weekly payment on review, or where there has 
 
 review. 
 
 been a change in the circumstances of the case. In the first 
 place the datum line from which all subsequent variations are to 
 be measured is the average weekly earnings as determined or 
 agreed in the first instance. This is fixed and is a constant. The 
 varying item, the amount actually being earned, has to be 
 determined from time to time whenever review is demanded. 
 In this case the arbitrator, having found these amounts, 
 held himself bound to have regard to them alone, and to nothing 
 else, and on such basis fixed the amount at half the difference 
 between them. Thus originally the man had been earning 
 2Z. 19s. Id. a week, and at the time was only earning 1Z. 16s.
 
 Workmen's Compensation Appeals. 79 
 
 This resulted in a difference of II. 3s. Id., of which the arbitrator SCHED.I. (3). 
 gave him lls. Id. as compensation. But it was shown that ^nt* HOW 
 owing to the Eight Hours Act wages generally had con- 
 siderably fallen, and that even if he had been in full work on full 
 pay he could not have earned more than 2Z. a week. That is, his 
 total loss due to his incapacity was not more than 4s. a week. 
 To, therefore, give him lls. Id. was to give him 7s. Id. a week 
 more than if he had never been injured. The question was, 
 was the arbitrator right in having regard to no other matters 
 than the two items what the man was then earning and what he 
 had been earning ? According to the reading of the old Act, as con- 
 strued in James v. Ocean Coal Co., [1904] 2 K. B. 213, he certainly 
 was, but in the present Act a further qualification has been 
 deliberately added. The amount is not to exceed such difference, 
 and it shall bear such relation to the amount of that difference as 
 under the circumstances of the case may appear proper. These 
 words in italics do not appear in the old Act, and we may take it 
 they were inserted for the very purpose of modifying it. There- 
 fore it follows that whilst an arbitrator is still bound by these 
 two items in determining the difference, yet when he has to 
 decide what proportion of that difference he has to give, say, 
 10, 20, 50, 70 per cent., or the whole of it, all the circumstances 
 of the case are to be considered. And such circumstances 
 obviously include a general fall of wages such as was shown to be 
 the case in this instance, as well as the fact that his injuries were 
 very slight. It was contended for the workman that under these 
 words only matters personal to him were to be considered. 
 Farwell, L.J., was of the opinion they were more general in their 
 effect, and " were added to give an arbitrator a freer hand to do 
 what is just," and Cozens-Hardy, M.R., said it was not competent 
 for a judge to say he would not go into extraneous circumstances, 
 but would only have regard to things personal. So, also, evidence 
 was given of the average wages of nineteen other colliers in a 
 similar position to that of the applicant, and was considered relevant 
 to the inquiry. No doubt this decision will largely widen the scope 
 of such inquiries, as well as their number, and if every variation
 
 80 Workmen's Compensation Appeals. 
 
 SCHED. i. (3). in the general rate of wages is to afford good grounds for 
 Weekly pay- see ki n g review, either on the part of the master or the part of 
 
 meats How 
 
 estimated on the man, there must be an immense number of cases where some 
 
 review. 
 
 change must be required. 
 
 ABLE TO EAEN 
 
 SCHED. I. (3). This enactment is probably of the most general importance in 
 the whole statute. Other points may be of moment in an occa- 
 sional instance; this practically affects every case where a 
 workman does not succumb to his injury. 
 
 The subject here presents itself under these two heads : 
 (a) Ability to earn as a physical fact, and the steps taken by the 
 man to get well ; and (&) the essentials of suitable employment. 
 
 Here first let us read shortly the different parts of the Act 
 which have to be construed together to arrive at what is exactly 
 enacted. 
 
 SCHED. I. (3). Sect. 1 (1) states that where personal injury by accident . . . 
 Able to earn. } g cause ^ t o a workman, his employer shall be liable to pay compen~ 
 sation in accordance with the First Schedule. 
 
 The material words so referred to (Schedule I. (1) (b) ) are, where 
 total or partial incapacity for work results, a weekly payment 
 during the incapacity, not exceeding fifty per cent, of the average 
 weekly earnings during the previous twelve months, and then the 
 words of this, par. (3), in the case of partial incapacity the weekly 
 payment shall in no case exceed the difference between the amount 
 of the average weekly earnings of the workman before the accident, 
 and the average weekly amount which he is earning or is " able to 
 earn in some suitable employment or business after the accident." 
 
 Though many cases have been decided on these clauses during 
 
 the past year there has been no departure from the principles 
 
 SCHED. I. (3). already laid down. Dealing first with (a), ability to earn as a 
 
 earn AS a Physical fact. This, as hitherto, offers few or no difficulties in 
 
 physical fact. j aw< Each case turns on a question of fact to be decided by its 
 
 own evidence. 
 
 If a man has physically recovered, his incapacity has ceased ; if
 
 Workmen's Compensation Appeals. 81 
 
 he has not physically recovered, he is entitled to receive compen- SCHED. I. (3). 
 sation as specified. n\ s a 
 
 How far a man can be said to have physically recovered has physical fact, 
 been discussed in several cases, and here we will first deal with 
 some of the simpler ones. In Emmerson v. Donkin, 4 B. 74, an 
 apprentice got his hand mutilated, but otherwise recovered, and 
 the arbitrator made an order ending liability. Nor would he 
 make a suspensory order, though there was no doubt the lad was 
 permanently injured. His counsel tried to contend not without 
 reason that where there was permanent injury, like mutilation, 
 there was always a possibility of the man suffering from it at a 
 future date, and that no order should be made ending liability. 
 But the Court, having taken his point, held incapacity or no 
 incapacity was a question of fact, and they could not interfere 
 with the arbitrator's discretion. Having regard to a reading 
 hitherto given to the Act, one might be inclined to think there 
 was no evidence on which the arbitrator could find his incapacity 
 was ended, and certainly, remembering the case of Radclijfe v. 
 Pacific Steam Navigation Co., [1910] 1 K. B. 685, 1 we think he 
 had some reason to complain. It is not satisfactory that in 
 one case the loss of a finger should be held to cause no incapacity, 
 and in another be regarded as sufficiently serious to warrant a 
 restoration of full compensation two years after the accident had 
 taken place. 
 
 If an arbitrator in the case of mutilation is entitled to find the 
 incapacity is ended, it is an d fortiori conclusion he is entitled to 
 do so in less serious cases, as when a wrist was alleged to have 
 been broken (Reyners v. Makin, 4 B. 267). 
 
 In Burgess v. Jetvell, 4 B. 145, a man had his little finger crushed 
 by an accident. Part was amputated, and but for slight adhesions 
 got well. These the employers contended work would break down, 
 and the arbitrator agreed with them and ended the compensation, 
 because, as he found, the man unreasonably refused to try such 
 cure. But the man proved that the hospital doctor advised him 
 
 1 Here a ship's butcher had full compensation restored him two years after 
 losing a finger, because he was able to prove that fact had so circumscribed 
 his area of opportunity he could not get work. 
 
 W.C.A. 6
 
 82 Workmen's Compensation Appeals. 
 
 SCHED. I. (3). that his best course was to have another piece of his finger cut 
 off, which he had submitted to. On these facts the Court of 
 
 carU US a 
 
 physical fact. Appeal held there was not a tittle of evidence the man had acted 
 unreasonably. Their decision emphasises the old rule that in 
 all such cases the one test is, has the man acted reasonably or 
 has he not ? If he has, that is the most that can be asked of him. 
 The case of Moss v. Akers, 4 B. 294, is not so satisfactory. Here 
 also a workman had injured his hand ; his employers contended, 
 and the medical referee agreed with them, that exercise would soon 
 cure the incapacity. But on the advice of his own doctor, 
 that it would do no good, the man had refused to so exercise it. 
 The arbitrator found as a fact, and the Court of Appeal held there 
 was evidence to justify him, that the man had not acted unreason- 
 ably. Apparently it would seem that as exercise would have done 
 no harm and might have done some good, he should have tried, 
 but probably other facts influenced the arbitrator which did not 
 appear in the report. In David v. Windsor Steam Coal Co., 
 4 B. 177, the arbitrator gave the salutary decision that a miner 
 who had physically recovered could not claim compensation 
 because, through idleness and loafing, he had let his muscles get 
 so soft he could do no work. 
 
 A curious case is that of Ball v. Hunt, [1911] 1 K. B. 1048. 
 By an accident some years previously, a miner lost the sight of 
 one eye, but the eye itself was unaltered. By a subsequent 
 accident the eye itself was again injured and had to be removed. 
 His infirmity was thus made patent, and no one would employ him. 
 The arbitrator found the incapacity was due to the loss of sight 
 and not removal of the eye, and refused compensation. This case 
 is on the line. Looking at the words of the Act and its schedule, 
 we note compensation is only to be given where a man has 
 suffered personal injury by accident, and where incapacity results 
 from such injury, and unless the incapacity was due to the acci- 
 dent it is not within the Act. In such a case his personal 
 appearance did not affect his capacity as a miner. In the case 
 of a waitress, where a pleasant face is of no small importance, 
 it certainly would be otherwise.
 
 Workmen's Compensation Appeals. 83 
 
 An intervening cause which of itself would cause incapacity does SCHED. I. (3). 
 not necessarily operate to deprive a man of compensation who has f a b r n_l As a 
 previously been incapacitated by an accident. Thus a miner who P h y sical fact - 
 injured his hand was for some years able to do light work which 
 his employers found him. Then he had to give it up on account 
 of heart disease. The fact he had done light work was no proof 
 his incapacity due to the accident was ended, and as the burden 
 was on his employers to show it was, which they were not able to 
 do, they failed in establishing their case (Cory Bros. v. Hughes, 
 27 T. L. E. 498). 
 
 Cases of Neurasthenia. 
 
 Here we come to those cases where the only outstanding SCHED. i. (3). 
 incapacity is due to neurasthenia. There have only been one or Able to earn 
 
 Neurasthenia, 
 two more or less unimportant decisions on this point during the 
 
 past twelve months. As regards these, once again reading shortly 
 the material words of the Act together we have : Where personal 
 injury by accident . . . is caused to a workman compensation shall 
 be payable . . . where . . . partial incapacity results. 
 
 To set the Act in operation there must be (1) personal injury 
 caused by accident, and (2) it must result in incapacity. 
 
 As regards the personal injury referred to the words are 
 perfectly general. It may be physical, it may be mental, there is 
 no reason it may not be moral. A man may have his nerves 
 shattered as well as his muscles bruised or bones broken, and 
 from an energetic industrious worker he may become an idle, 
 worthless fellow. All these may be equally due to personal 
 injury by accident, and when from all or any of these causes 
 incapacity results, compensation becomes payable. The burden 
 of proof of such incapacity is on the workman, and evidence of 
 its discharge is usually found in the award given or in the regis- 
 tered memorandum of an agreement made between the parties. 
 
 The next stage is when the employer wishes to vary or end 
 such award. Then the burden of proof is on him to show there 
 has been a change of circumstances sufficient to warrant the order 
 he seeks. And what has he to establish ? Not unfrequently an 
 
 62
 
 84 Workmen's Compensation Appeals. 
 
 SCHED. I. (3). employer thinks he has done his part when he shows that the man 
 Neurasthenia" * 8 no l n g er suffering from anything but neurasthenia. But 
 this is not enough. As we have just mentioned, nervous break- 
 down may be as much the result of the accident as actual physical 
 injuries, and may just as much result in incapacity. Hence where 
 neurasthenia or other such effect is outstanding the employer 
 must show, not merely that the man is suffering from neuras- 
 thenia, but that the neurasthenia is no longer due to the 
 personal injury caused to the workman, but is due to some other 
 cause. This is like the case we have already mentioned, where the 
 arbitrator found that a miner's incapacity was not due to the 
 accident but was due to the soft state of his muscles, due to his 
 loafing. But cases where neurasthenia is involved are not so 
 simple as this, especially when a man's bona fides is not 
 questioned. A man may otherwise be wholly recovered and yet 
 one of the results of the accident may be his genuine belief he is 
 hopelessly incapacitated. So the condition may be aggravated by 
 his refusing legitimate means of cure, not from obstinacy but 
 from the innate conviction that it will do him harm. At this stage 
 then it is only courting disaster for an employer to seek review. 
 The man's incapacity is still clearly the result of the accident. 
 What he must do is to determine what course of cure is most 
 suitable, and then ask the workman to try it. If the workman 
 refuses he is then in a position to go to the Court and ask for its 
 assistance. To give the Court seisin as a matter of form he may 
 have to ask for the amount payable to be varied or ended, but to 
 avoid the risk of having to pay the costs of the day, he should 
 either in the application or in a concurrent letter state that he is 
 willing the hearing should be adjourned, and that he will continue 
 to pay compensation if in the meantime the workman will take 
 the steps suggested for getting better. 
 
 Of course it is the man's duty, quite apart from his employer's 
 urging, to do his utmost to get well, but if the unfortunate result 
 of the accident is to more or less make the man irresponsible, the 
 employer must proceed by steps, for by striking too soon he may 
 easily prejudice the best of cases. These remarks do not apply
 
 Workmen's Compensation Appeals. 85 
 
 to malingering, such cases are simply disposed of. The difficult SCHED. I. (3). 
 ones are those where there has been a serious accident in the Able to earn 
 
 Neurasthenia. 
 
 first place, and no suggestion of bad faith in the second. Then 
 festina lente should be the employer's motto, combined with a 
 never ceasing watchfulness to see that the workman is doing 
 everything possible to get well again. 
 
 Neurasthenia Due to Intervening Cause. 
 
 The case of L. & N. W. R. v. Taylor, 4 B. 11, affords a simple SCHED. I. (3). 
 example of where the arbitrator found the neurasthenia was due to Neurasthenia 
 an intervening cause, and not to the accident. The man had been ^ae* 03 ** 
 injured and apparently got well, for he returned to work. Then 
 he ceased on the ground of a recurrence of pain and nervousness 
 due, as he said, to his accident. But, as in the meantime he had 
 suffered from influenza, the arbitrator found his state was due to 
 this, and hence decided against him. In Beech v. Bradford Cor- 
 poration, 4 B. 236, a man was unloading sets, and his evidence 
 was, " I felt something like a tear in my back." The employers' 
 doctors were by no means satisfied there had been an accident at 
 all. Some cynics have said that the Workmen's Compensation 
 Act has been the most perfect cure for lumbago ever discovered ; 
 as it is now unknown except as an aristocratic complaint. Appa- 
 rently this was the view of the employers' doctor in this case. 
 Following the accident the man got into a nervous condition 
 which appears to have gradually got worse ; but the arbitrator, 
 accepting the employers'evidence, found as a fact that it was not 
 due to the accident, and terminated the payment of compensa- 
 tion. 
 
 Suitable Employment. 
 
 The question of what is suitable employment becomes material SCHED. I. (3). 
 when a man has sufficiently recovered to do some work but is Jjjjjjj***"" 
 unable to find the work he is fitted for. This may be due to two employment. 
 reasons : the state of the labour market, or the limited class of 
 work which, owing to his accident, he can do, and of which there 
 is none offering or obtainable.
 
 86 Workmen s Compensation Appeals. 
 
 SCHED. I. (3). As to the first the law is well settled, the employer does not 
 
 Abie to earn g uaran tee the labour market, and as to the second it is equally 
 
 employment. a g re ed that a circumscribed area of opportunity for disposing of 
 
 one's labour may be as much due to a continuing incapacity 
 
 caused by the accident as to the physical inability itself to do actual 
 
 work. This is well put by Kennedy, L.J., in Dobby v. Pease, 
 
 2 B. 370, when he says : " This is merely saying in other terms 
 
 that he is incapacitated by the accident. If he would have got 
 
 work but for the accident, but cannot otherwise, it is because of 
 
 the accident." 
 
 But though this is so, though in law a master does not 
 guarantee the labour market, hitherto in practice it has very 
 nearly come to his having to do so. To get variation of an award 
 he has had usually to prove that not only could a man do work, 
 but that he could also get it The fact is, to draw the line 
 between not guaranteeing the labour market and having to show 
 that a man's failure to get work is not due to his accident is in 
 practice very difficult indeed. 
 
 The law is well reviewed in the case of Cardiff Corporation v. 
 Hall, [1911] K. B. 1009, where Fletcher Monlton, L.J., has made 
 an admirable attempt to show the true principles governing such 
 cases. Here the facts were simple. A man fell and was injured. 
 His employers found him light work, and engaged him to drive a 
 cart from which, in a second accident, he was thrown, his left 
 arm being injured. This disabled him from doing such light 
 work, or any work requiring the use of his left arm. The 
 arbitrator accepted the report of the medical referee, and found 
 he was "quite able to do any form of light work, more particularly 
 such as would require principally the use of the right hand." On 
 this he reduced the weekly payments from 9s. 2d. to 8s. a week. 
 For doing so he gave his reasons as follows : " I was of opinion 
 that the condition of the respondent had greatly improved since 
 the making of the award which it was sought to review, and that 
 there had consequently been such a change of circumstances as 
 entitled me to review the weekly payments ordered by that award, 
 and taking all the circumstances into consideration I came to the
 
 Workmen's Compensation Appeals. 87 
 
 conclusion that 8s. a week was a proper and sufficient weekly SCHED. I. (3). 
 payment to be made to the respondent in respect of the incapacity Stable*" 
 from which he is suffering. With this view the Court of Appeal employment. 
 (Cozens-Hardy, M.R., dissentient) agreed. In dissenting, the Master 
 of the Eolls said : " The effect of the accident had not been 
 removed, and I cannot think that the workman ought to have his 
 compensation reduced merely on the ground he is physically able 
 to do a different kind of work, which in truth cannot be proved. 
 In Clarke v. Gas Light and Coke Co., 21 T. L. E. 184, it was 
 held that if a man unsuccessfully made reasonable efforts to 
 obtain employment at work which he is physically capable of 
 performing he must be regarded as not able to earn anything." 
 
 Further, the learned judge cited with approval a portion of 
 his judgment in Proctor v. Robinson, [1911] 1 K. B. 1004, as 
 follows : " Either the employers should first obtain some work 
 which the workman could do and offer it to him and give evi- 
 dence of this ; or else they should give evidence there is some 
 chance of the workman obtaining a particular kind of light work 
 in the district. The burden was upon the employers, and they 
 have failed to discharge it." 
 
 With this view the other members of the Court did not agree. 
 The difficulty was how to give effect to the principle, a master 
 does not guarantee the state of the labour market. It had never 
 been laid down, and was going too far to require a master to 
 show, not only that a man could do work, but that also he could 
 get it. If for a minute, apart from this case, we consider the 
 Act, this seems clearly to be so. For, going by steps, what has 
 to be proved by each party respectively ? The man must prove 
 (inter alia) the accident, injury, and consequent incapacity, and 
 this proved, and only when proved, is the arbitrator called upon to 
 assess the compensation. The question of ability to earn does 
 not arise until the man has proved so much. And he must 
 always prove so much before he is even called upon to give any 
 evidence at all as to the compensation he should receive. And 
 whilst this is so at an original hearing there is little or no 
 difference in the case of review, except that the original wages,
 
 88 Workmen's Compensation 
 
 SCHED. i. (3). the original accident, and the original incapacity are all taken 
 Suitable" 11 " as P rove( ^ an ^ need not be proved again. Then if the employer 
 employment. wan ts any variation in the award he must prove a change of 
 circumstances justifying it. When he has done this, then the 
 arbitrator has practically a new case to deal with, and has once 
 more to assess compensation de novo in exactly the same way 
 as at the original hearing. The basis of his proceeding is as 
 before, the wages, the accident, and the consequent incapacity, 
 but the compensation formerly given has nothing whatever to 
 do with the compensation again to be given. His award was for 
 compensation during the incapacity as then proved. By proof of 
 change of circumstances the employer has shown that primd facie 
 the amount originally given is no longer correct, and that it must 
 be assessed anew. The arbitrator will act on all the evidence 
 before him, but if there be no evidence of what the incapacity is, 
 he has no evidence on which to make a new award. The old 
 award has worked itself out. The incapacity on which it was 
 based has gone. The state of the existing incapacity the man 
 must show, and how far it lessens his earning powers. This 
 shown, the duty of the arbitrator will be to give him a sum not 
 exceeding 50 per cent, of his original wages, and in no case 
 exceeding the difference between what he did earn and can 
 earn. If the man has not entirely recovered, the employer will 
 admit he may be entitled to some amount, but it is for the man 
 to show what it should be. To all appearances he can do some 
 work. Then he must show why he cannot get it or take the 
 risk of the arbitrator thinking he does not want to do so. And, 
 quoting Fletcher Moulton, L.J., the chance of obtaining employ- 
 ment is in many cases so personal a matter that it can only be 
 arrived at by evidence as to the results of the efforts to obtain it. 
 
 Change in Circumstances, Weekly Payments to be Reassessed. 
 
 It was argued in this case that an amount having once been 
 fixed the burden lay on the employer applying for review, not 
 only to prove a change of circumstances, but also to prove 
 by how much the compensation already given should be in
 
 Workmen's Compensation Appeals. 89 
 
 consequence reduced. But this was not agreed to by the Court, SCHED. I. (3). 
 who were of opinion that the arbitrator having been satisfied an 
 improvement had taken place in the man's condition, it was for 
 him to form an estimate of what the reduction in the payments 
 should be. (See also under Par. 16 as to Review.) 
 
 Suitable Employment, Evidence as to. 
 
 And what evidence is to satisfy the arbitrator that the man 
 though able to do work is still unable to get it and unable because of 
 the accident ? Every case must stand on its own facts. In this case Cardiff 
 the man proved he had sought work as a bill distributor, from the v . Hall, 
 post office, etc., and had failed. This, though strong evidence, 
 was yet held not conclusive evidence to bind the arbitrator to 
 find he could not get work on account of his accident. And here 
 Fletcher Moulton, L.J., pointed out the distinction to be observed. 
 An accident might be such that whilst preventing a man from 
 doing his original work, yet might only result in relegating him 
 to an inferior grade of work, but which work had its regular 
 supply and demand. He instanced the possible case of a highly- 
 gifted fitter, who, through his accident, might become incapable 
 of anything more than ordinary work at less wages. The differ- 
 ence between the wages he formerly earned and could then only 
 earn would form the basis of a weekly compensation, but the 
 risk of getting such everyday work was a risk ordinary to every 
 worker, and a risk which the employer did not take, as he did not 
 guarantee the labour market. Thus in the case in question the 
 man was rightly compensated for being reduced to a different 
 grade of labour, but as he could do such labour like every one 
 else in it, he had to take the risk of the market, and not his 
 employer. If one of the incidents of such lower grade were that 
 work in it was more intermittent or less certain than in his 
 original employment, this would be one of the factors that would 
 govern the arbitrator in fixing the original amount he should be 
 paid as weekly compensation. 
 
 No doubt the extremely careful way in which Fletcher 
 Moulton, L.J., went into the matter was largely due to Radclife's
 
 90 Workmen's Compensation Appeals. 
 
 SCHED. I. (3). Case, it being quite unthinkable that a man who has only lost a 
 Able to earn n g er [ B thereby totally incapacitated from earning anything 
 employment, whatever. If a man were to be so injured as to become, as 
 Fletcher Monlton, L.J., aptly terms it, an odd lot, then his 
 evidence he could not get work, if unrebutted by his employers, 
 might go a very long way in justifying an arbitrator regarding 
 him as still wholly incapacitated by his accident. But a man who 
 has only lost one finger could never be regarded as such odd lot, 
 not even if it totally incapacitated him in his original business. 
 For here it must be noticed that there is not a word in the Act 
 limiting a man's ability to earn to his own or any particular 
 trade. The only qualification is, it must be a suitable employ- 
 ment. 
 
 Indirect Result of Accident. 
 
 This important case was followed in Guest, Keen and Nettle- 
 fold v. Winsper, 4 B. 289. Here a workman in a steel rolling 
 mill had an eye injured. On review, on the evidence and on the 
 report of the medical referee, the arbitrator found he was physi- 
 cally able to work, but that in the circumstances of his trade, as 
 the accident would entail his wearing spectacles, he would not be 
 able to obtain employment. He accordingly declined to vary the 
 payments. On appeal it appeared that the case of the Cardiff 
 Corporation v. Hall had not been brought to his notice, it not 
 having been then reported, and it was remitted back to him to 
 rehear on the ground there was a change of circumstances, and 
 that the man should be able to earn something. 
 
 Where, however, a miner had hurt his knee, and though 
 perfectly recovered except that at any time his knee might give 
 way, and this prevented his getting work, as was proved by his 
 having called on forty firms, it was held there was evidence that 
 owing to his accident he was still wholly incapacitated. This 
 seems clear. He had done what every man ought to do, had 
 done his utmost to get work, and having failed, and failed because 
 he had been injured, it was only just he should receive compensa- 
 tion (Thomas v. Fairbairne, 4 B. 195).
 
 Workmen's Compensation Appeals. 91 
 
 Offer of Work by Employer. SCHED. I. (3). 
 
 When an employer offers work he of course at once secures suitable 
 proof there is work the man can do. And when a man refused er 
 it because he thought it might prove too heavy, and, notwith- 
 standing the employer's assurance, refused to attempt it, the 
 Court held the arbitrator was amply justified in reducing his 
 compensation to Id. a week. The man took up the attitude, 
 the offer was not clear, and there was no evidence on which the 
 judge could reduce his payments. But it is evident he quite 
 misconceived the position, for if otherwise physically improved it 
 is for him to explain and satisfy an arbitrator why he cannot do 
 something useful for his living (McNamara v. Burtt, 4 B. 151). 
 
 A similar fate befell a workman who never tried to get work. 
 Again it was urged, and without success, that it was for the 
 employers to prove that the man is able to get light work but 
 refuses to go and try it (Anglo-Australian Steam Navigation Co. 
 v. Richards, 4 B. 247). 
 
 The case of Ward v. Miles, 4 B. 182, was heard the same day 
 as Cardiff Corporation v. Hall, but was decided before judgment 
 in that case was given. Here a waitress injured her finger 
 which made her clumsy. On her employer complaining she 
 gave notice to leave and then claimed compensation. Her wages 
 had been 10s. a week and tips equal to another Is. a week. The 
 arbitrator awarded her 5s. a week as partially incapacitated. The 
 Court of Appeal held there was evidence on which he could so 
 award. 
 
 Misconduct in Relation to Able to Earn. 
 
 Of course, a workman can bring about his dismissal by SCHED. I. (3). 
 
 his misconduct, when his incapacity to earn will no longer be Able to earn 
 
 J Suitable em- 
 
 due to his accident but to such misconduct. But it is pressing pioyment 
 
 Misconduct. 
 
 this doctrine too far to say that because of one act of misconduct 
 a man is to be generally disentitled. Of course, it is a question 
 of fact for the arbitrator to decide, but in White v. Harris, 4 B. 
 89, following Clarke v. Gas Light and Coke Co., 21 T. L. B. 184, 
 the Court held he had gone too far when he did so end the
 
 92 Workmen's Compensation Appeals. 
 
 SCHED. I. (3). compensation. Here it appeared on cross-examination that the 
 employer had only had to find fault with him on one or two 
 occasions, and the further suggestion he had made trouble at 
 the works did not seem to have been at all established. 
 
 SCHED. i. (4). (4) Where a workman has given notice of an accident, he 
 Medical shall, if so required by the employer, submit himself for 
 examination by a duly qualified medical practitioner provided and 
 paid by the employer, and, if he refuses to submit himself to such 
 examination, or in any way obstructs the same, his right to com- 
 pensation, and to take or prosecute any proceeding under this 
 Act in relation to compensation, shall be suspended until such 
 examination has taken place. 
 
 See under Paragraph 14 of this Schedule. 
 
 SCHED. i. (5). (5) The payment in the case of death shall, unless otherwise 
 
 On death ordered as hereinafter provided, be paid into the county court, 
 
 Payment into an( j anv Bum so p^ j n ^ cour t shall, subject to rules of court 
 
 and the provisions of this schedule, be invested, applied, or 
 
 otherwise dealt with by the court in such manner as the court in 
 
 its discretion thinks fit for the benefit of the persons entitled 
 
 thereto under this Act, and the receipt of the registrar of the 
 
 court shall be a sufficient discharge in respect of the amount 
 
 paid in : 
 
 Provided that, if so agreed, the payment in case of death shall, 
 if the workman leaves no dependants, be made to his legal 
 personal representative, or, if he has no such representative, to 
 the person to whom the expenses of medical attendance and burial 
 are due. 
 
 SCHED. I. (6). (6) Eules of court may provide for the transfer of money paid 
 
 Transfer of into court under this Act from one court to another, whether or 
 
 money in no t the court from which it is to be transferred is in the same 
 
 part of the United Kingdom as the court to which it is to be 
 
 transferred. 
 
 SCHED. i. (7). (7) Where a weekly payment is payable under this Act to a 
 
 Legal person under any legal disability, a county court may, on 
 
 p^m^T into a PP nca ti on being made in accordance with rules of court, order that 
 
 court" * ne weekly payment be paid during the disability into court, and 
 
 the provisions of this schedule with respect to sums required by 
 
 this schedule to be paid into court shall apply to sums paid into 
 
 court in pursuance of any such order. 
 
 SCHED. i. (8). (8) Any question as to who is a dependant shall, in default of 
 
 depe^ndan^ agreement, be settled by arbitration under this Act, or, if not so 
 
 inter se. settled before payment into court under this schedule, shall be 
 
 settled by the county court, and the amount payable to each 
 
 dependant shall be settled by arbitration under this Act, or, if not 
 
 so settled before payment into court under this schedule, by the 
 
 county court. Where there are both total and partial dependants 
 
 nothing in this schedule shall be construed as preventing the
 
 Workmen's Compensation Appeals. 93 
 
 compensation being allotted partly to the total and partly to the SCHED. i. (8). 
 partial dependants. 
 
 (9) Where, on application being made in accordance with SCHED. I. (9). 
 rules of court, it appears to a county court that, on account of Variation of 
 neglect of children on the part of a widow, or on account O f awardsin 
 the variation of the circumstances of the various dependants, or ^fdows 
 
 for any other sufficient cause, an order of the court or an award 
 as to the apportionment amongst the several dependants of any 
 sum paid as compensation, or as to the manner in which any sum 
 payable to any such dependant is to be invested, applied, or 
 otherwise dealt with, ought to be varied, the court may make such 
 order for the variation of the former order or the award, as in the 
 circumstances of the case the court may think just. 
 
 (10) Any sum which under this schedule is ordered to be SCHED. I. 
 invested may be invested in whole or in part in the Post Office ( 10 )- 
 Savings Bank by the registrar of the county court in his name investment, 
 as registrar. 
 
 (11) Any sum to be so invested may be invested in the SCHED. i. 
 purchase of an annuity from the National Debt Commissioners C 11 )- 
 through the Post Office Savings Bank, or be accepted by the Investment. 
 Postmaster-General as a deposit in the name of the registrar as 
 
 such, and the provisions of any statute or regulations respecting 
 the limits of deposits in savings banks, and the declaration to be 
 made by a depositor, shall not apply to such sums. 
 
 (12) No part of any money invested in the name of the SCHED. I. 
 registrar of any county court in the Post Office Savings Bank ( 12 >- 
 under this Act shall be paid out, except upon authority addressed Money in 
 to the Postmaster-General by the Treasury or, subject to regula- 
 
 tions of the Treasury, by the judge or registrar of the county 
 court. 
 
 (13) Any person deriving any benefit from any moneys SCHED. i. 
 invested in a post office savings bank under the provisions of ( 13 )- 
 this Act may, nevertheless, open an account in a post office As to dupii- 
 savings bank or in any other savings bank in his own name i 
 without being liable to any penalties imposed by any statute or bank, 
 regulations in respect of the opening of accounts in two savings 
 
 banks, or of two accounts in the same savings bank. 
 
 (14) Any workman receiving weekly payments under this Act SCHED. I. 
 shall, if so required by the employer, from time to time submit ( 14 )- 
 himself for examination by a duly qualified medical practitioner Medical 
 provided and paid by the employer. If the workman refuses to ea 
 submit himself to such examination, or in any way obstructs the 
 
 same, his right to such weekly payments shall be suspended 
 until such examination has taken place. 
 
 Medical Examination. 
 
 The one rule as to a workman submitting himself to medical ^^P' L ^ 
 examination is that he shall act reasonably, and, beyond being Medical 
 
 examination.
 
 94 Workmen's Compensation Appeals. 
 
 SCHED. I. (4) illustrations, the decisions in one case are little authority for what 
 Medical must be decided in another. It has been held in some circum- 
 mation. s ^ ances fo&t a workman is entitled to have his own doctor present 
 at his examination, Devitt v. " Bainbridge " (Owners of), [1909] 
 2 K. B. 802, and in others that he is not, Morgan v. Dixon, W. N., 
 1911, 220, and that an arbitrator cannot make it a condition for 
 such examination that the employers pay the doctor's fees 
 (Osborne v. Vickers, Sons d Maxim, [1900] 2 Q. B. 91). So there 
 have been cases where he has been held right in insisting on being 
 examined at his own doctor's surgery (Harding v. R. M. S. P. Co., 
 4 B. 59), but not at the office of his solicitor (Turner v. Bell, 4 
 B. 63) ; and in Warby v. Plaistowe, 4 B. 67, where he made it a 
 condition that he should be so examined in his solicitor's office 
 or in his presence, he was held to have obstructed the examina- 
 tion. It must be noted in these cases the Court of Appeal 
 supported the arbitrator's finding of fact, but it is by no 
 means certain that in apparently similar cases the arbitrator 
 would necessarily come to or have to come to the same 
 conclusion. Suppose a man was injured in his eye. It is quite 
 conceivable the arbitrator might consider it very unreasonable 
 for him to put his employers to the expense of sending their own 
 doctor to see him, and paying him large fees for going to a 
 distance when there was nothing to prevent him visiting him at 
 his own surgery. Both sides should do their best to facilitate the 
 examination and have as much regard for the convenience of one 
 another as the nature of the case makes possible. 
 
 The case of Morgan v. Dixon has been now taken to and 
 confirmed by the House of Lords. Lord Loreburn, L.C., said 
 " that in every case it was a question of fact for the arbitrator 
 to say whether or not the wish of the workman to have his 
 medical man present was in the circumstances reasonable. 
 Their Lordships, being a Court of law, were not judges of fact. 
 In his opinion there was no such absolute right given to the 
 workman, and, as it was that there were in this case no special 
 circumstances to be considered, he moved that the appeal be 
 dismissed with costs." Lord Shaw was of opinion that a man's
 
 Workmen's Compensation Appeals. 95 
 
 desire to have his own medical man present was reasonable, and SC HED. * (*) 
 
 i4. 
 
 on this ground differed from the rest of the Court. 
 
 (15) A workman shall not be required to submit himself for SCHED. I. 
 examination by a medical practitioner under paragraph (4) or ^ 
 paragraph (14) of this schedule otherwise than in accordance mutual* 06 by 
 with regulations made by the Secretary of State, or at more agreement, 
 frequent intervals than may be prescribed by those regulations. 
 
 Where a workman has so submitted himself for examination 
 by a medical practitioner, or has been examined by a medical 
 practitioner selected by himself, and the employer or the 
 workman, as the case may be, has within six days after such 
 examination furnished the other with a copy of the report of that 
 practitioner as to the workman's condition, then, in the event of 
 no agreement being come to between the employer and the 
 workman as to the workman's condition or fitness for employ- 
 ment, the registrar of a county court, on application being made 
 to the court by both parties, may, on payment by the applicants 
 of such fee not exceeding one pound as may be prescribed, refer 
 the matter to a medical referee. 
 
 The medical referee to whom the matter is so referred shall, in 
 accordance with regulations made by the Secretary of State, give 
 a certificate as to the condition of the workman and his fitness 
 for employment, specifying, where necessary, the kind of employ- 
 ment for which he is fit, and that certificate shall be conclusive 
 evidence as to the matter so certified. 
 
 Where no agreement can be come to between the employer and 
 the workman as to whether or to what extent the incapacity of 
 the workman is due to the accident, the provisions of this para- 
 graph shall, subject to any regulations made by the Secretary of 
 State, apply as if the question were a question as to the condition 
 of the workman. 
 
 If a workman, on being required so to do, refuses to submit 
 himself for examination by a medical referee to whom the matter 
 has been so referred as aforesaid, or in any way obstructs the 
 same, his right to compensation and to take or prosecute any 
 proceeding under this Act in relation to compensation, or, in the 
 case of a workman in receipt of a weekly payment, his right to 
 that weekly payment, shall be suspended until such examination 
 has taken place. 
 
 Rules of court may be made for prescribing the manner in 
 which documents are to be furnished or served and applications 
 made under this paragraph and the forms to be used for those 
 purposes and, subject to the consent of the Treasury, as to the 
 fee to be paid under this paragraph. 
 
 Reference by Mutual Agreement. 
 
 It will be observed that references under this paragraph can
 
 96 Workmen's Compensation Appeals. 
 
 e made by joint request. It usually speaks well for the 
 Reference by man's genuineness that he will unite in such joint request. But 
 agreement once suc ^ J ^ re( l ue8 ^ an d a referee appointed and his report 
 made, so far as it goes it is conclusive. In Sapcote v. Hancox, 
 4 B. 184, it was argued otherwise, but it seems the workman 
 confused a reference under this paragraph with one under 
 Sched. II. (15), which empowers an arbitrator, etc., to submit to 
 a referee for report any matter which seems material to any 
 question arising in the arbitration. This latter report when 
 made is not binding, and the arbitrator can give as little or as 
 much effect to it as he deems wise. The case of Quinn v. Flynn, 
 
 3 B. 594, on which his counsel relied, only deals with reference 
 under this second schedule paragraph. It is an Irish case, but 
 is in agreement with the law as settled by the English Courts. 
 On a similar report under Sched. I. (15) the arbitrator terminated 
 the compensation. This was the case of Cranfield v. Ansell, 
 
 4 B. 57. It was urged he had no power to make such award, as 
 all matters had been settled by agreement between the parties, 
 and that there was an agreement capable of being recorded. 
 This was hardly a matter of substance. No doubt the man could 
 have applied for registration of the agreement, and have left it to 
 his employer to apply for a stay pending review, but on the other 
 hand if he chose to apply de novo by a request for arbitration 
 there was no objection, and the result must have been the same 
 in either case. 
 
 SCHED. i. (16) Any weekly payment may be reviewed at the request 
 
 R (f 6 )- either of the employer or of the workman, and on such review 
 
 may be ended, diminished, or increased, subject to the maximum 
 
 above provided, and the amount of payment shall, in default of 
 
 agreement, be settled by arbitration under this Act : 
 
 Provided that where the workman was at the date of the acci- 
 dent under twenty-one years of age and the review takes place 
 more than twelve months after the accident, the amount of the 
 weekly payment may be increased to any amount not exceeding 
 fifty per cent, of the weekly sum which the workman would pro- 
 bably have been earning at the date of the review if he had 
 remained uninjured, but not in any case exceeding one pound. 
 
 The Recording of Stale Agreements. 
 
 Under the old Act the practice was to record any agreement,
 
 Workmen 1 s Compensation Appeals. 97 
 
 whether stale or otherwise, though before issuing execution the SCHED. I. 
 registrar had to be satisfied there was default : Rules 67 and 68. E . 
 This is modified by Sched. II. (9), proviso (b), but yet the con- 
 venient practice still seems fairly general to allow agreements 
 to be registered, strictly according to their tenour, and then leave 
 the parties to apply for modification by review. This course was 
 adopted in London and North Western Railway v. Taylor, 4 B. 11 
 (also referred to under Able to Earn, sub-heading Neurasthenia 
 due to intervening cause, Sched. II. (9) (b). 
 
 Overpaid Compensation. 
 
 A most important point was decided in Hosegood v. Wilson, SCHED. I. 
 4 B. 30. There is usually delay between the application for Beview 
 review and the decision. In the meantime the employer has to 
 continue paying the full compensation. Then on review the 
 arbitrator may end the higher amount and substitute a lower 
 one as from the earlier date. But though the employer has thus 
 overpaid compensation it has been decided in this case that by 
 virtue of Sched. I. (19), which says compensation may not be 
 charged, he cannot deduct such amount from subsequent pay- 
 ments on account of compensation. He has a right to recover it 
 by action for whatever it is worth, but that is all. Probably the 
 right course for the employer to adopt is on the review, when 
 the arbitrator finds there is sufficient change of circumstances to 
 warrant his fixing anew the weekly payment, to ask him, under 
 Sched. I., par. (3), to have regard to the overpayments made 
 between the application and the hearing as a payment, allowance, 
 or benefit under that provision. Of course, what " regard " an 
 arbitrator may have will be a matter entirely in his own dis- 
 cretion. 
 
 Should Liability ever be Finally Terminated. 
 
 Not where injury is serious, like the loss of an eye (Braithwaite v. SCHED. I. 
 Kirk) ; but in the case of L. d N. W. R. v. Taylor it was further con- Eeview 
 tended liability should never be ended, but that on recrudescence 
 
 W.C.A. 7
 
 98 
 
 Workmen's Compensation Appeals. 
 
 SCHED. I. 
 
 (16). 
 Review. 
 
 SCHED. I. 
 (17). 
 
 Redemption 
 of weekly 
 payment. 
 
 of incapacity due to the injury ipso facto a right to compensation 
 should revive. (See further Sched. II. (9) under Eecord of 
 Agreement after Workman's Recovery.) 
 
 (17) Where any weekly payment has been continued for not 
 less than six months, the liability therefor may, on application 
 by or on behalf of the employer, be redeemed by the payment 
 of a lump sum of such an amount as, where the incapacity is 
 permanent, would, if invested in the purchase of an immediate 
 life annuity from the National Debt Commissioners through the 
 Post Office Savings Bank, purchase an annuity for the workman 
 equal to seventy-five per cent, of the annual value of the weekly 
 payment, and as in any other case may be settled by arbitration 
 under this Act, and such lump sum may be ordered by the com- 
 mittee or arbitrator or judge of the county court to be invested 
 or otherwise applied for the benefit of the person entitled thereto : 
 Provided that nothing in this paragraph shall be construed as 
 preventing agreements being made for the redemption of a weekly 
 payment by a lump sum. 
 
 REDEMPTION OP WEEKLY PAYMENT. 
 
 The meaning of this paragraph came up for consideration in 
 the appeal and cross-appeal of the Calico Printers' Association 
 v. Higham, W. N., 1911, 221. Here a workman had lost two 
 fingers at his employment, and for a time had been paid full com- 
 pensation, and then for the six months prior to the application 
 had received 9. 3d. a week for partial disablement. His employer 
 then applied to compound. The arbitrator held he had no dis- 
 cretion as to amount and was bound to fix it actuarially, which 
 he did at 81 2Z. Had it been a matter within his discretion he 
 would have thought 84Z. enough. Further, whilst fixing the 
 amount the employers could compound at, he made no order 
 compelling them to compound. Against this part of the award 
 there was the cross-appeal. Unfortunately the case had to be 
 sent back to the arbitrator as he had omitted to find whether the 
 incapacity was or was not permanent. The materiality of such 
 finding will appear from the following consideration. Here we may 
 repeat from our " Employers' Liability," p. 358, what we thought 
 to be the effect of this paragraph, as it seems on the whole to 
 fairly represent the position : " Its probable effect is (a) where
 
 Workmen's Compensation Appeals. 99 
 
 incapacity is permanent the employer can redeem his liability SCHED. I. 
 with a lump sum fixed at seventy-five per cent, of the value of Eedemption 
 an annuity as stated, and neither more nor less ; and (b) in any 
 other case, as where incapacity is not permanent, as may be settled 
 by arbitration." It will thus be observed the whole method of 
 assessment turns on the one all important fact, is the incapacity 
 permanent or is it not ? 
 
 This is the first finding of fact that an arbitrator in every case 
 must definitely make. 
 
 Here it should be noted that permanence of injury and per- 
 manence of incapacity are by no means co-extensive. The 
 incapacity referred to is incapacity for work, not physical, 
 mental, or other incapacity. A lawyer may lose his finger and 
 not be incapacitated for work at all. This distinction is most 
 important. Whilst there are many cases where the injury is 
 permanent, there are very few indeed where incapacity is likely 
 to be so as well. If a man is totally paralyzed, seriously maimed, 
 blinded of both eyes, one might well find he is permanently 
 incapacitated, but failing such serious injury an arbitrator 
 might equally well find that the incapacity is not permanent. 
 As this leaves the whole matter in his discretion, and as there is 
 nothing to prevent his giving the full amount as determined 
 actuarially, he should himself assess it, unless the evidence is 
 very conclusive there is likely to be no change in the man's 
 earning power. 
 
 The next point to be observed is that the weekly payment to be 
 compounded is the weekly payment that has been actually con- 
 tinued during the preceding six months and at the same amount. 
 At the hearing there were several queries as to how payments 
 to infants and nominal awards were to be treated. Was a man 
 in receipt of a penny a week to be liable to have it compounded 
 at its simple actuarial value. If such a contention is ever seriously 
 pressed it will be equally met by the reply that whilst the para- 
 graph provides for compounding the weekly payment, it does not say 
 one word about ending the liability except pro tanto. If more is 
 to be done, a distinct award under par. 16 as to review must be 
 
 72
 
 100 
 
 Workmen's Compensation Appeals. 
 
 SCHED. i. 
 
 (17). 
 
 Redemption 
 of weekly 
 payment. 
 
 SCHED. I. 
 
 (18). 
 
 Workman 
 leaving 
 United 
 Kingdom. 
 
 made, and no arbitrator would make this unless satisfied the 
 amount was a fair one. 
 
 The next important question is, what effect is to be given to 
 the word " may " ? 
 
 It is to be observed this paragraph has been framed in the 
 interests of the employer, and there seems no reason why an 
 employer should not withdraw his application at any time prior 
 to the actual award on the usual terms of payment of costs. In 
 fact, it is rather hard on an employer note, in no way in fault 
 that he should have to resort to such expensive machinery to 
 ascertain what his liability can be compounded for. It will be 
 noted the word " may " is a reference to the employer, and is not a 
 discretion given to the arbitrator as to allowing or refusing an 
 application to compound. To give effect to the word " may " the 
 award might well be made in the form that the compensation 
 should be redeemed on payment of L, which would leave 
 
 matters in statu, quo until such payment was made. 
 
 The principles thus arrived at obviously show that such a pro- 
 cedure as that adopted by the arbitrator in Victor Mills, Ltd. v. 
 Shackleton, W. N., 1911, 197, cannot possibly be correct. Here a 
 workman had for some time been in receipt of 16s. Id. a week as 
 compensation for total and permanent incapacity. The total thus 
 received amounted to 179Z. 6*. Id. The employer then applied to 
 redeem. The arbitrator found he would have given 300L 
 originally, and from this he deducted the above amount and 
 awarded the balance, viz., 120L 13s. 5d. If the finding of total 
 and permanent incapacity be correctly reported, the amount 
 should have been 75 per cent, of the value of a Post Office 
 annuity of 16s. Id. a week, nor would the amount so given be in 
 the discretion of the arbitrator. 
 
 (18) If a workman receiving a weekly payment ceases to reside 
 in the United Kingdom, he shall thereupon cease to be entitled 
 to receive any weekly payment, unless the medical referee certifies 
 that the incapacity resulting from the injury is likely to be of a 
 permanent nature. If the medical referee so certifies, the work- 
 man shall be entitled to receive quarterly the amount of the weekly
 
 Workmen's Compensation Appeals. 101 
 
 payments accruing due during the preceding quarter so long as he SCHED. I. 
 proves, in such manner and at such intervals as may be pre- ^ 18 ^' 
 scribed by rules of court, his identity and the continuance of 
 the incapacity in respect of which the weekly payment is payable. 
 
 (19) A weekly payment, or a sum paid by way of redemption SCHED. I. 
 thereof, shall not be capable of being assigned, charged, or ( 19 )- 
 attached, and shall not pass to any other person by operation of no^be** 1011 
 law, nor shall any claim be set off against the same. charged. 
 
 Overpayment of Compensation. 
 
 In Hosegood v. Wilson, [1911] 1 K. B. 30, a workman had been 
 overpaid compensation. Although his employer could recover 
 this amount by action, or, at least, get judgment for it not 
 quite the same thing yet he could not treat such overpayments 
 as payments on account of future weekly payments, and to stop 
 payments of compensation until the balance was wiped off was 
 decided to be wrong. See also under Sched. I. (16). 
 
 (20) Where under this schedule a right to compensation is SCHED. I. 
 suspended no compensation shall be payable in respect of the ( 2 ) < 
 period of suspension. Suspension of 
 
 (21) Where a scheme certified under this Act provides for compensa lon * 
 payment of compensation by a friendly society, the provisions / 2 i) 
 
 of the proviso to the first subsection of section eight, section Cert i fied 
 sixteen, and section forty-one of the Friendly Societies Act, 1896, schemes, 
 shall not apply to such society in respect of such scheme. 59 & eo Viet. 
 
 (22) In the application of this Act to Ireland the provisions of c - 25. 
 the County Officers and Courts (Ireland) Act, 1877, with respect SCHED. I. 
 to money deposited in the Post Office Savings Bank under that 
 
 Act shall apply to money invested in the Post Office Savings f" 1 * 
 Bank under this Act. fl 
 
 c. 56.
 
 102 
 
 SECOND SCHEDULE. 
 ARBITRATION, ETC. 
 
 SCHED. ii. (1) For the purpose of settling any matter which under this 
 ^i-^' 8 )' Act is to be settled by arbitration, if any committee, representa- 
 
 Arbitration ,. , j v- L 
 
 by committee, ^ ive ' an employer and his workmen, exists with power to settle 
 etc. ' matters under this Act in the case of the employer and workmen, 
 
 the matter shall, unless either party objects by notice in writing 
 sent to the other party before the committee meet to consider the 
 matter, be settled by the arbitration of such committee, or be 
 referred by them in their discretion to arbitration as hereinafter 
 provided. 
 
 (2) If either party so objects, or there is no such committee, or 
 the committee so refers the matter or fails to settle the matter 
 within six months from the date of the claim, the matter shall 
 be settled by a single arbitrator agreed on by the parties, or in 
 the absence of agreement by the judge of the county court, 
 according to the procedure prescribed by rules of court. 
 
 (3) In England the matter, instead of being setted by the judge 
 of the county court, may, if the Lord Chancellor so authorises, 
 be settled according to the like procedure, by a single arbitrator 
 appointed by that judge, and the arbitrator so appointed shall, 
 for the purposes of this Act, have all the powers of that judge. 
 
 Arbitration other than by Judge of County Court. 
 
 Under paragraph (1), which is substantially the same as that 
 in the Act of 1897, provision is made for arbitration other than by 
 the judge of the county court, and the judge has no supervision over 
 such arbitration and its proceedings. Hence when an award had 
 been made by a committee under the old Act, and the amount 
 reduced by agreement, and later on the workman applied to the 
 county court judge for review, the judge, on objection taken, held he 
 had no jurisdiction to entertain the matter, and refused to hear 
 the application. The workman appealed to the Court of Appeal. 
 Again, on objection taken, the Court of Appeal held : " The county 
 court judge has not heard or determined this case. It is quite 
 plain that he declined to entertain jurisdiction, and the appeal 
 therefore lies not here, but to the Divisional Court," per Cozens- 
 Hardy, M.R., Howarth v. Samuelson, 4 B. 287 ; and see also 
 County Courts Act, 1888, s. 131.
 
 Workmen's Compensation Appeals. 103 
 
 (4) The Arbitration Act, 1889, shall not apply to any arbitra- SCHED. n. 
 tion under this Act ; but a committee or an arbitrator may, if C 4 )- 
 they or he think fit, submit any question of law for the decision 52 * 53 vict - 
 of the judge of the county court, and the decision of the judge on c ' ' 
 any question of law, either on such submission, or in any case a ^ d to appea 
 where he himself settles the matter under this Act, or where he as to 
 gives any decision or makes any order under this Act, shall be final, procedure in 
 unless within the time and in accordance with the conditions pre- 
 scribed by rules of the Supreme Court either party appeals to the 
 Court of Appeal ; and the judge of the county court, or the arbi- 
 trator appointed by him, shall, for the purpose of proceedings under 
 this Act, have the same powers of procuring the attendance of 
 witnesses and the production of documents as if the proceedings 
 were an action in the county court. 
 
 Preliminary Objection. 
 
 The question of jurisdiction was involved in Panagotis v. 
 Pontiac (Owners of). See further under sect. 11, where a seaman 
 detained a ship. On its facts the decision seems warranted, but 
 it is somewhat difficult to follow the reasons given. The 
 dissenting judgment of Farwell, L.J., so clearly states the law that 
 evidently the variance was on how the facts should be regarded. 
 This being so, we may take it that this case in no way disturbs 
 the practice as now settled. Without division of opinion, the 
 Court also declined to hear the appeal in Homer v. Gough under 
 sect. 5, as there clearly the arbitrator had no jurisdiction at all 
 to make any order. As to this also see further under sect. 5. 
 
 The same question was also involved in Hoivarth v. Samuelson, 
 supra, under par. (3). 
 
 Form of Notice of Appeal. 
 
 By rule 71 of the Workmen's Compensation Rules, 1907, SCHED. n. 
 appeals under Sched. II., par. (4), have to be in accordance with Appealg _ 
 the rules of the Supreme Court relating thereto, and by Order LIX., Notice - 
 rule 10, it is directed : 
 
 " The notice of motion shall state the grounds of the appeal, and whether 
 all or part only of the judgment order or finding is complained of." 
 
 Thus in Barton v. Scott, 4 B. 15, the workman twice applied 
 to have his award reviewed, and each time his application
 
 104 
 
 Workmen's Compensation Appeals. 
 
 SCHED. ii. 
 
 (4). 
 
 Appeals 
 Notice. 
 
 SCHED. II. 
 
 (4). 
 
 Appeals 
 Time for. 
 
 SCHED. II. 
 
 (4). 
 Procedure. 
 
 SCHED. II. 
 
 (4). 
 Evidence 
 
 was dismissed. On appeal the workman really relied on the 
 evidence given at the first review, although in form the notice of 
 appeal was from the second review. The first application had 
 been dismissed on the grounds the applicant had not shown he 
 had made reasonable efforts to obtain work, and the second that 
 since the first hearing there had been no change of circumstances. 
 Cozens-Hardy, M.R., intimated he had read the notice of appeal 
 and could not gather from it what was really the point they were 
 asked to decide, and the Court held the notice was insufficient, and 
 dismissed the appeal. 
 
 Time for Appeal. 
 
 In Fox v. Batter sea Borough Council, 4 B. 261, the judge of 
 the county court refused, in November, 1910, to record an agree- 
 ment as not genuine, and in January, 1911, made an award. 
 From both decisions the employers appealed. It was held they 
 formed part of one and the same proceeding, and there was no 
 necessity to have appealed within twenty-one days from the first 
 order in November, 1910. Further, Cozens-Hardy, M.R., observed 
 that had it been necessary for leave to have been obtained for 
 giving further time to appeal, he should certainly have granted it. 
 See also under sect. 1 (3). 
 
 THE ATTENDANCE OF WITNESSES AND 
 TION OP DOCUMENTS. 
 
 THE PRODUC- 
 
 Why the second part of this paragraph could not have been 
 made into a distinct paragraph by itself, and made to precede 
 the first part, which deals with appeals, is difficult to understand. 
 However, it is as convenient to give here as anywhere else some 
 of the miscellaneous decision dealing with evidence and practice 
 which have recently been given by the Court. 
 
 Evidence Generally. 
 
 It is not sufficient that there should have been some evidence 
 on which an arbitrator could have found a fact, unless it is also 
 shown that he did in fact apply his mind to such evidence, and 
 did so find (Lee v. "Bessie" (Owners of), W. N., 1911, 222).
 
 Workmen's Compensation Appeals. 105 
 
 Evidence. Statement to Doctor, etc. SCHED. II. 
 
 (4). 
 
 In several cases no evidence of how an accident has occurred Evidence- 
 statement to 
 has been procurable other than that of the wife, doctor, or some doctor. 
 
 one to whom the deceased has made statements, and which are not 
 admissible. In Amys v. Barton, W. N., 1911, 205, where a man 
 died from a wasp sting, it was sought to give the statement made 
 to the doctor to explain how it happened. This was not admitted. 
 A man may tell his doctor what his symptoms are, from what he 
 is suffering, and how it was caused, by a blow, a chill, a sting, a 
 scratch, a strain, a bite, etc., and all this the doctor may tell the 
 Court as part of the res gestce, but it is not part of the res gesfae 
 when he would give the man's account of how he came to 
 have been bit or stung, etc. And the distinction is clear. The 
 doctor can check for himself and be cross-examined as to whether 
 he really thought the injury was due to a blow, etc., but there is 
 no means of checking the statement, if permitted, how the blow, 
 etc., actually happened. It might be the man was interested in 
 deliberately misleading his doctor. The accident might have 
 happened under circumstances of which he was ashamed, and he 
 might easily have wished to attribute it to more reputable causes, 
 or, knowing he was dying, have thought to provide for his family. 
 If the Irish case of Wrightv. Kerregan, 45 Ir. L. T. 82, goes further 
 than this, which is very doubtful, for the headnote is not borne 
 out by the judgments ; it is not to be followed. The leading case 
 is Gilbey v. G. W. E., 102 L. T. 202, which correctly states 
 the law. 
 
 Evidence. Onus of Proof. 
 
 The question of onus of proof was discussed and became SCHED. n 
 
 (4). 
 
 material in the Scotch case of M'Ghee v. Summerlee Iron Co., 48 Ev i dence _ 
 S. L. E. 807. We have had to somewhat lengthily consider the Onus of P roof - 
 same point under par. 3 of Schedule I. under the heading Able 
 to Earn, sub-heading Suitable Employment. In this case a 
 miner lost his eye by an accident. On February 14, 1910, the 
 medical referee reported him fit for work. The employers then 
 applied to end or diminish the compensation. At the hearing
 
 106 
 
 Workmen's Compensation Appeals. 
 
 SCHED. ii. the workman proved that since the report he had lost the other 
 Evidence eve an d was then totally incapacitated, and the Sheriff found this 
 
 Onus of proof. wag g( ^ ^^ ^ e \^ ft was no ^ p rov ed the blinding of the remaining 
 eye was due to the accident. He held the onus was on the man to 
 prove this. The employers had proved that in February, 1910, 
 the incapacity had ceased. This they had to do. After a special 
 hearing as to the cause of the subsequent blindness, the Sheriff 
 found " that it is not proved that the said condition is due to 
 sympathetic affection." Further, he held that the onus of proof 
 was on the workman to show that the new incapacity which thus 
 supervened and which he sought to establish was due to the 
 accident, and that he had not discharged it. Equally, he said, he 
 would have held that if the onus had been the other way the 
 employers had failed to discharge it. Accordingly he found for 
 the employers, and his finding was upheld. 
 
 In England we do not quite agree with the Scotch law as to 
 onus as thus stated. With us if there is no evidence the party 
 loses who has to prove his case, but directly evidence is given 
 the question of onus is at an end, and the arbitrator or judge has 
 to find on the evidence as best he can. It is not open to him to 
 Bay " the evidence is so equally balanced I cannot decide " : It is 
 his duty to decide, though there is no reason he should not 
 adjourn the case for further evidence to be given. Bowen, L.J., 
 well puts our view of the law in Abraih v. N. E. R., 1 Q. B. D. at 
 p. 456 : " The question of onus of proof is only a rule for 
 deciding on whom the obligation of going further, if he wishes to 
 win, rests. It is not a rule to enable the jury to decide on the 
 value of conflicting evidence. So soon as a conflict of evidence 
 arises, it ceases to be a question of onus of proof." 
 
 SCHED. II. 
 
 (4). 
 Practice. 
 
 Practice. Affidavits, etc., in Court of Appeal. 
 
 In Turner v. Bell, 4 B. 63, an arbitrator, holding the matter 
 was res judicata, declined to take any notes. On appeal, the 
 Court accepted an affidavit of the solicitor as to what had 
 taken place. 
 
 In Lee v. "Bessie" (Owners of), W. N., 1911, 222, the Court
 
 Workmen's Compensation Appeals. 107 
 
 of Appeal allowed a newspaper report to be read, not as admitting SCHED. n. 
 such as evidence, but as a statement of counsel present at the practice 
 trial who adopted it as substantially correct. 
 
 New Trial. 
 
 In S. E. <& C. jR. v. Ewell, not yet reported, an official called by SCHED. n. 
 the company was also subpoenaed by the other side. The company's 
 advisers, seeing him with them, thought he was going to "sell" New trial, 
 them, so not knowing of the subpoena told him he would not 
 be required and could go back to his work. This he did, with 
 the result when the other side called him he was not available. 
 These facts clearly warranted a new trial, which was agreed upon. 
 So also a new trial was ordered in Jessop v. Maclay, not yet 
 reported, where the arbitrator had refused an adjournment of the 
 hearing. Here, owing to the sailing of their ship within three 
 days of the application for arbitration, the owners were unable to 
 take the evidence necessary for them to have to substantiate their 
 defence. 
 
 Practice. Settlement where Infants. 
 
 In Coulson v. The Worshipful Company of Drapers, not yet 
 
 reported, on appeal the parties agreed to settle, and they fixed the SCHED. n. 
 
 (*) 
 compensation at 120Z., instead of 190Z. They then asked for ' _ 
 
 the sanction of the Court. On it appearing that there were infants, 
 infants and that they were not separately represented, the Court 
 felt they could not then give it, but referred it to the official 
 solicitor for him to decide and report to them if it was for their 
 benefit. So it was ordered he was to have the assistance of counsel 
 to help him in arriving at a conclusion, if he required it. If this 
 is the usual machinery to be invoked in the cases where there 
 are infants it hardly seems there will be many settlements 
 if the clients are consulted. So it seems foreign to the 
 spirit of the Act. Under the award, the 190 was to have been 
 apportioned by the registrar or the arbitrator in the usual way. 
 Now, on appeal, it was to the joint interest of all the applicants, 
 the infants included, if they could not get the full amount to
 
 108 
 
 Workmen's Compensation Appeals. 
 
 SCHED. II. 
 
 (4). 
 
 Practice 
 Infants. 
 
 get as large a sum in settlement as possible. So far there was no 
 conflict of interest, and so far one counsel could and did well 
 represent them all. When he advised taking the smaller 
 sum he was as much acting in the interest of the infants as 
 of the others entitled, and was every whit as able to judge for 
 them as the official solicitor. The conflict of interest would 
 only arise when the amount had to be divided, and it would 
 be the same whether it was 190Z. or 120L, or any other sum. 
 Then why should not the settlement have been allowed and 
 the division of the amount have been referred to the arbitrator 
 to be made in the usual way. 
 
 SCHED. II. 
 
 (4). 
 Public 
 
 Authorities 
 Act. 
 
 SCHED. II. 
 
 (5). 
 
 Referee as 
 assessor. 
 
 SCHED. II. 
 
 (6). 
 
 Appearance 
 of parties. 
 
 SCHED. II. 
 
 (7). 
 Costs. 
 
 SCHED. II. 
 
 (8). 
 
 Death, etc. of 
 arbitrator. 
 
 SCHED. II. 
 
 (9). 
 
 Record of 
 agreement. 
 
 Public Authorities Act, 1893. 
 
 In Fry v. Mayor, etc. of Cheltenham, W. N., 1911, 199, it was 
 held that the Public Authorities Act, 1893, does not apply to an 
 arbitration under the Act which is made a statutory incident to 
 a contract of service. 
 
 (5) A judge of county courts may, if he thinks fit, summon a 
 medical referee to sit with him as an assessor. 
 
 (6) Eules of court may make provision for the appearance in 
 any arbitration under this Act of any party by some other 
 person. 
 
 (7) The costs of and incidental to the arbitration and pro- 
 ceedings connected therewith shall be in the discretion of the 
 committee, arbitrator, or judge of the county court, subject as 
 respects such judge and an arbitrator appointed by him to rules 
 of court. The costs, whether before a committee or an arbitrator 
 or in the county court, shall not exceed the limit prescribed by 
 rules of court, and shall be taxed in manner prescribed by those 
 rules and such taxation may be reviewed by the judge of the 
 county court. 
 
 (8) In the case of the death, or refusal or inability to act, of an 
 arbitrator, the judge of the county court may, on the application 
 of any party, appoint a new arbitrator. 
 
 (9) Where the amount of compensation under this Act has been 
 ascertained, or any weekly payment varied, or any other matter 
 decided under this Act, either by a committee or by an arbitrator 
 or by agreement, a memorandum thereof shall be sent, in manner 
 prescribed by rules of court, by the committee or arbitrator, or 
 by any party interested, to the registrar of the county court, 
 who shall, subject to such rules, on being satisfied as to its
 
 Workmen's Compensation Appeals. 109 
 
 genuineness, record such memorandum in a special register SCHED. 11. 
 without fee. and thereupon the memorandum shall for all purposes (9 } , 
 
 v * i i i i Eecord of 
 
 be enforceable as a county court judgment. agreement. 
 
 Provided that 
 
 (a) no such memorandum shall be recorded before seven days 
 after the despatch by the registrar of notice to the parties 
 interested ; and 
 
 (6) where a workman seeks to record a memorandum of agree- 
 ment between his employer and himself for the payment 
 of compensation under this Act and the employer, in 
 accordance with rules of court, proves that the workman 
 has in fact returned to work and is earning the same 
 wages as he did before the accident, and objects to the 
 recording of such memorandum, the memorandum shall 
 only be recorded, if at all, on such terms as the judge 
 of the county court, under the circumstances, may think 
 just ; and 
 
 (c) the judge of the county court may at any time rectify the 
 
 register; and 
 
 (d) where it appears to the registrar of the county court, on any 
 
 information which he considers sufficient, that an agree- 
 ment as to the redemption of a weekly payment by a lump 
 sum, or an agreement as to the amount of compensation 
 payable to a person under any legal disability, or to 
 dependants, ought not to be registered by reason of the 
 inadequacy of the sum or amount, or by reason of the 
 agreement having been obtained by fraud or undue 
 influence, or other improper means, he may refuse 
 to record the memorandum of the agreement sent to 
 him for registration, and refer the matter to the judge, 
 who shall, in accordance with rules of court, make such 
 order (including an order as to any sum already paid 
 under the agreement) as under the circumstances he may 
 think just ; and 
 
 (e) the judge may, within six months after a memorandum of an 
 
 agreement as to the redemption of a weekly payment by 
 a lump sum, or of an agreement as to the amount of 
 compensation payable to a person under any legal dis- 
 ability, or to dependants, has been recorded in the 
 register, order that the record be removed from the 
 register on proof to his satisfaction that the agreement 
 was obtained by fraud or undue influence or other 
 improper means, and may make such order (includ- 
 ing an order as to any sum already paid under the 
 agreement) as under the circumstances he may think 
 just. 
 
 This paragraph deals with the recording of agreements or 
 awards made otherwise than by the judge of the county court.
 
 110 Workmen 1 s Compensation Appeals. 
 
 SCHED. ii. Genuineness of Agreement. 
 
 (9)- 
 
 Directly they are so made, and whether they are express or 
 
 its genuine- only to be implied from the acts of the parties, e.g., by the paying 
 ness. 
 
 of compensation weekly, either party is entitled to have this 
 
 agreement recorded under this paragraph. The first point upon 
 which the registrar has to satisfy himself is that the agreement 
 sent for record is genuine. This does not give him any authority 
 to inquire into the adequacy or desirability of the agreement, 
 or in fact into anything other than was entered into as it 
 purported to be (Fox v. Battersea Borough Council, 4 B. 261, 
 discussed under sect. 1 (3) ). 
 
 Actual Agreement only to be Eecorded. 
 SCHED. ii. Subject to the provisoes the registrar is only entitled to record 
 
 (9). 
 
 Actual agree- ^ e ac ^ ua l agreement between the parties, and neither he nor 
 ment to be they nor the judge may add anything to it or vary it. It is 
 
 recorded, 
 
 strange the number of times the Court of Appeal have had to 
 say this. In M'Carthy v. Stapleton-Bretherton, 4 B. 281, the 
 agreement was to pay compensation during total incapacity. 
 The workman tried to register an agreement to pay also during 
 partial incapacity. Here incidentally it may be remarked that 
 the fact that the agreement cannot also be registered for partial 
 incapacity does not mean that the workman cannot recover for it. 
 It simply means that when total disablement comes to an end a 
 new agreement must be made and recorded, and failing agreement 
 the amount payable must be settled by arbitration on application 
 being made in the usual manner. In Lunt v. Sutton Heath 
 Collieries, 4 B. 219, the Court of Appeal refused to order the 
 agreement tendered to be recorded because it did not agree with 
 the agreement as made. In Shore v. " Hyrcania " (Owners of), 
 4 B. 207, the workman added to an agreement to pay during 
 total incapacity the words " until the same shall be ended, 
 diminished or increased by order of the court or by agreement 
 between the parties." The arbitrator refused to record the agree- 
 ment with the additions, and the appeal from his decision was
 
 Workmen's Compensation Appeals. Ill 
 
 dismissed as quite hopeless ; and the same result for the same SCHED. u. 
 
 (9). 
 
 reason happened in Maundrell v. Dunkeston Collieries, 4 B. 76. Actual agree- 
 
 In the case of Phillips v. Vickers, Sons and Maxim, W. N., 1911, ment to be 
 192, the same principle was again enforced. An arbitrator ordered 
 the registration of an agreement which was to be implied from 
 the payment of 16s. 3d. as if it were general in its terms. The 
 respondents proved that it was a condition that the payment 
 should only be made so long as the workman obtained a certificate 
 from their doctor every fortnight that he was still incapacitated. 
 It was again held no agreement could be registered other than 
 was actually entered into. 
 
 Record of Agreement after Workman's Recovery. 
 
 Under the old Act an agreement could practically be recorded at SCHED. n. 
 
 /g-\ 
 
 any time, whether stale or otherwise. This is now modified by Recor( j after 
 
 proviso (a) which has been added to the paragraph. Now if a workman's 
 
 recovery. 
 
 workman has returned to work and is earning his original wages 
 his employer is entitled to object to the recording of the agree- 
 ment, or to its being recorded except on terms. 
 
 In the case of the London and North Western Railway v. 
 Taylor, 4 B. 11, a workman had been injured, and had received 
 compensation, but did not record any agreement. He recovered 
 and returned to work at full wages for nearly a year. Then he 
 had a nervous breakdown, due, he said, to the accident ; to 
 influenza, said his employers. He applied to record an agreement 
 to pay him compensation. His employers objected on the ground 
 he had recovered. Alternatively they asked that if an agreement 
 were recorded there should be a stay of all proceedings under it 
 pending their application to review. This latter course the 
 arbitrator adopted, and on the review he accepted the employers' 
 theory of the man's breakdown, and ended the agreement. On the 
 hearing of the appeal the further point was taken that an 
 arbitrator has no power to terminate an agreement, though he 
 may end the weekly payments, and if there is at any time a 
 recrudescence of the injury, whether payments are ended or not, 
 the man is entitled to ask for a review of the original agreement.
 
 112 Workmen's Compensation Appeals. 
 
 SCHED. ii. This point the court evaded in this case, as the recorded agreement 
 Eecord after was ^ or payments to be made until ended, and as they had been 
 recovery* * en ded the agreement automatically ended with them. However, 
 in the Scotch case of Cadenhead v. Ailsa Shipbuilding Co., [1910] 
 S. C. 1129, the point was raised and it was definitely decided 
 that there was no right to a new award on the recrudescence of 
 the injury. (See also under Sched. I. (16), Review.) 
 
 In Turner v. Bell, 4 B. 63, a man told his employers he had 
 ruptured himself by accident, and they paid him compensation 
 for twenty-one weeks. Something aroused their suspicion and 
 they then stopped their payments and also disputed the accident 
 itself. The man applied for arbitration, claiming that the 
 tubercular disease of the testicles from which he suffered was 
 caused by the accident. The arbitrator found it had no connec- 
 tion with the alleged accident, and made an award in favour of 
 the employers. 
 
 Some months later the workman applied to record an agree- 
 ment implied from the payments made him, but the judge held 
 the matter was res judicata, and declined to take any notes. 
 
 The solicitor made an affidavit of what took place, which the 
 Court of Appeal accepted. The application that the case ought 
 to be remitted to the arbitrator to hear was treated as a sub- 
 stantive appeal and dismissed on its merits. 
 
 Suppose the workman whilst in receipt of payments had 
 registered the agreement, what then would have been the position 
 of the employers ? Probably on fraud being proved the Court 
 would set aside any agreement ; but supposing fraud could not 
 have been sufficiently shown to justify this measure, then the 
 logic of the position would have been that the employers admitted 
 the accident and the consequent rupture, but they applied for 
 review on the ground of change of circumstances, the change 
 being the man no longer suffered from rupture, and that if he 
 suffered at all it was from another and distinct cause, viz., 
 tuberculosis. 
 
 In Frogbrook v. Potts, 4 B. 266, an employer paid his apprentice 
 full wages of 10s. a week, under the mistaken impression he
 
 Workmen's Compensation Appeals. 113 
 
 was an infant. When he discovered he was of full age he SCHED. n. 
 
 *-Q\ 
 
 declined to pay more than half, whereupon the workman applied R ' 
 to have the agreement recorded. The arbitrator refused, and as workman's 
 
 t m . recovery. 
 
 proviso (b) did not apply it was doubtful if he had a right to do 
 
 so, and the Court of Appeal suggested a settlement at Is. 6d. 
 a week, subject to review, and gave the workman his costs. 
 Unless the employer could prove fraud, he would have been wiser 
 to have at once agreed to the recording of the agreement and 
 then asked for review. It would have cost far less. 
 
 Record of Agreements for Redemption. 
 
 Thus far the Court deals with agreements purely ministerially, SCHED. n. 
 
 fQ\ 
 
 its province being to determine, are they genuine or is there any Rec ^ r ^' of 
 
 reason under proviso (fo) for their not being recorded or only agreements 
 
 rf for redemp- 
 
 recorded on terms. But under proviso (e) it is the duty of the tion. 
 Court to inquire not merely into the genuineness of the agree- 
 ment but into its adequacy as well. Thus in " Segura " (Owners 
 of) v. Blampied, 4 B. 192, the registrar, thinking the amount 
 agreed upon to compound was too small, referred it to the judge. 
 On his holding he had only to inquire into the fact had the 
 agreement been made or had it not, the Court referred it back to 
 him to determine the question of adequacy as well. But note, this 
 does not entitle him to say what amount shall be given. If the 
 amount is inadequate he can say so and refuse to record the 
 agreement ; but this is the limit of his powers (Mortimer v. 
 Secretan, [1909] 2 K. B. 77). Beech v. Bradford Corporation, 
 4 B. 236, is a curious case. The corporation agreed to pay their 
 workman a lump sum to settle their liability. The judge thought 
 the amount inadequate, and refused to record the agreement. 
 The workman then applied for arbitration, when the judge found 
 the amount already paid sufficient, and that the man was not 
 suffering from the accident, and ended the payments. It was 
 then objected, but without success, that, as a matter of procedure, 
 it was not open to the arbitrator to find against the workman on 
 this application. But the Court held that on refusal to record 
 the agreement the matter recommenced de novo on an application 
 W.C.A. 8
 
 114 
 
 Workmen's Compensation Appeals. 
 
 SCHED. II. 
 
 (9). 
 
 Record of 
 agreements 
 for redemp- 
 tion. 
 
 for arbitration being made. A similar result happened in 
 Marriott v. Brett. An arbitrator refused to allow an infant's 
 claim to be compromised, and when the case came to be heard 
 by him he found for the master, as the accident did not arise out 
 of the employment. 
 
 SCHED. II. 
 (10). 
 
 Agreements 
 for redemp- 
 tion must be 
 registered. 
 
 SCHED. II. 
 (11). 
 
 Jurisdiction. 
 
 SCHED. II. 
 (12). 
 
 Duties of 
 judge of 
 county court 
 Eules of 
 Court to be 
 made. 
 
 SCHED. II. 
 
 (13). 
 
 No court fees, 
 
 SCHED. II. 
 
 (14). 
 
 Good receipt 
 by whom. 
 
 (10) An agreement as to the redemption of a weekly payment 
 by a lump sum if not registered in accordance with this Act 
 shall not, nor shall the payment of the sum payable under the 
 agreement, exempt the person by whom the weekly payment is 
 payable from liability to continue to make that weekly payment, 
 and an agreement as to the amount of compensation to be paid 
 to a person under a legal disability or to dependants, if not so 
 registered, shall not, nor shall the payment of the sum payable 
 under the agreement, exempt the person by whom the compensa- 
 tion is payable from liability to pay compensation, unless, in 
 either case, he proves that the failure to register was not due to 
 any neglect or default on his part. 
 
 (11) Where any matter under this Act is to be done in a 
 county court, or by, to, or before the judge or registrar of a 
 county court, then, unless the contrary intention appear, the 
 same shall, subject to rules of court, be done in, or by, to, or 
 before the judge or registrar of, the county court of the district in 
 which all the parties concerned reside, or if they reside in different 
 districts the district prescribed by rules of court, without pre- 
 judice to any transfer in manner provided by rules of court. 
 
 (12) The duty of a judge of county courts under this Act, or 
 in England of an arbitrator appointed by him, shall, subject to 
 rules of court, be part of the duties of the county court, and the 
 officers of the court shall act accordingly, and rules of court may 
 be made both for any purpose for which this Act authorises rules 
 of court to be made, and also generally for carrying into effect 
 this Act so far as it affects the county court, or an arbitrator 
 appointed by the judge of the county court, and proceedings in 
 the county court or before any such arbitrator, and such rules 
 may, in England, be made by the five judges of county courts 
 appointed for the making of rules under section one hundred 
 and sixty -four of the County Courts Act, 1888, and when allowed 
 by the Lord Chancellor, as provided by that section, shall have 
 full effect without any further consent. 
 
 (13) No court fee, except such as may be prescribed under 
 paragraph (15) of the First Schedule to this Act, shall be payable 
 by any party in respect of any proceedings by or against a 
 workman under this Act in the court prior to the award. 
 
 (14) Any sum awarded as compensation shall, unless paid into 
 court under this Act, be paid on the receipt of the person to 
 whom it is payable under any agreement or award, and the
 
 Workmen's Compensation Appeals. 115 
 
 solicitor or agent of a person claiming compensation under this SCHED. n. 
 Act shall not be entitled to recover from him any costs in respect ( - 14 - )> 
 of any proceedings in an arbitration under this Act, or to claim 
 a lien in respect of such costs on, or deduct such costs from, the 
 sum awarded or agreed as compensation, except such sum as may 
 be awarded by the committee, the arbitrator, or the judge of the 
 county court, on an application made either by the person claim- 
 ing compensation, or by his solicitor or agent, to determine the 
 amount of costs to be paid to the solicitor or agent, such sum to 
 be awarded subject to taxation and to the scale of costs prescribed 
 by rules of court. 
 
 (15) Any committee, arbitrator, or judge may, subject to SCHED. u. 
 regulations made by the Secretary of State and the Treasury, ( 15 )- 
 submit to a medical referee for report any matter which seems Submission 
 material to any question arising in the arbitration. referee"* 1 
 
 Confusion exists between reference under this paragraph and 
 under par. (15) of Sched. I., which provides solely for reference 
 by the joint request of the parties. As to this, see further under 
 the previous paragraph. 
 
 By No. 20 of the regulations of June 24, 1907, it is required 
 as follows : 
 
 20. Before making any reference, the . . . judge shall be satisfied after 
 hearing medical evidence tendered by either side that such evidence is 
 either conflicting or insufficient on some matter which seems material to a 
 question arising in the arbitration, and that it is desirable to obtain a report 
 from a medical referee on such matter. 
 
 Thus, in Henricksen v. Swanhilda (Owners of), 4 B. 233, the 
 owners took the objection that the judge had made a reference 
 under this paragraph before it was permissible under the conditions 
 laid down in this regulation, viz., where there was a conflict of 
 evidence. With this the Court did not agree, and held the refer- 
 ence was correctly made. Equally they did so in the case of 
 Carolan v. Harrington, 27 T. L. E. 486, where the defendants, find- 
 ing the decision of the referee as to the cause of death was against 
 them, took the objection the arbitrator had no power to refer, as 
 the regulations were framed only to deal with a workman when 
 alive and whom the referee could see and examine. The words 
 " subject to regulations " only limit the power of the arbitrators in 
 matters they deal with, not in those on which they are silent. f 
 
 Hence the powers are those found in the words of this paragraph. 
 
 8-2
 
 116 
 
 Workmen's Compensation Appeals. 
 
 SCHED. II. 
 
 (15). 
 
 Submission 
 to medical 
 referee. 
 
 SCHED. II. 
 (16). 
 
 Powers 
 conferred on 
 committees, 
 etc. 
 
 SCHED. II. 
 
 (17). 
 
 Application 
 to Scotland. 
 
 39 & 40 Viet. 
 c. 70. 
 
 SCHED. II. 
 
 (18). 
 
 Application 
 to Ireland. 
 
 So it would seem such objection, even if valid, to have been suc- 
 cessful, ought to have been taken before and not after the 
 reference was made. 
 
 (16) The Secretary of State may, by order, either uncondi- 
 tionally or subject to such conditions or modifications as he 
 may think fit, confer on any committee representative of an 
 employer and his workmen, as respects any matter in which 
 the committee act as arbitrators, or which is settled by agree- 
 ment submitted to and approved by the committee, all or any 
 of the powers conferred by this Act exclusively on county courts 
 or judges of county courts, and may by the order provide how 
 and to whom the compensation money is to be paid in cases 
 where, but for the order, the money would be required to be 
 paid into court, and the order may exclude from the operation 
 of provisoes (d) and (e) of paragraph (9) of this schedule agree- 
 ments submitted to and approved by the committee, and may 
 contain such incidental, consequential, or supplemental pro- 
 visions as may appear to the Secretary of State to be necessary 
 or proper for the purposes of the order. 
 
 (17) In the application of this Schedule to Scotland 
 
 (a) " County Court judgment " as used in paragraph (9) of 
 this schedule means a recorded decree arbitral : 
 
 (&) Any application to the sheriff as arbitrator shall be heard, 
 tried, and determined summarily in the manner provided 
 by section fifty-two of the Sheriff Courts (Scotland) Act, 
 1876, save only that parties may be represented by any 
 person authorised in writing to appear for them and 
 subject to the declaration that it shall be competent to 
 either party within the time and in accordance with the 
 conditions prescribed by act of sederunt to require the 
 sheriff to state a case on any question of law determined 
 by him, and his decision thereon in such case may be 
 submitted to either division of the Court of Session, who 
 may hear and determine the same and remit to the 
 sheriff with instruction as to the judgment to be 
 pronounced, and an appeal shall lie from either of 
 such divisions to the House of Lords : 
 
 (c) Paragraphs (3), (4), and (8) shall not apply. 
 
 (18) In the application of this schedule to Ireland the expression 
 " judge of the county court " shall include the recorder of any 
 city or town, and an appeal shall lie from the Court of Appeal 
 to the House of Lords.
 
 Workmen's Compensation Appeals. 
 
 117 
 
 THIRD SCHEDULE. 
 
 SCHED. III. 
 
 Description of Disease. 
 
 Description of Process. 
 
 Anthrax 
 
 Lead poisoning or its sequelae 
 
 Mercury poisoning or its se- 
 quelae, 
 
 Phosphorus poisoning or its 
 sequelae. 
 
 Arsenic poisoning or its sequelae 
 
 Ankylostomiasis 
 
 Handling of wool, hair, bristles, hides, and 
 
 skins. 
 Any process involving the use of lead or its 
 
 preparations or compounds. 
 Any process involving the use of mercury 
 
 or its preparations or compounds. 
 Any process involving the use of phosphorus 
 
 or its preparations or compounds. 
 Any process involving the use of arsenic 
 
 or its preparations or compounds. 
 Mining. 
 
 Where regulations or special rules made under any Act of 
 Parliament for the protection of persons employed in any 
 industry against the risk of contracting lead poisoning require 
 some or all of the persons employed in certain processes specified 
 in the regulations or special rules to be periodically examined 
 by a certifying or other surgeon, then, in the application of this 
 schedule to that industry, the expression " process " shall, unless 
 the Secretary of State otherwise directs, include only the processes 
 so specified.
 
 GENEEAL INDEX. 
 
 To make this Index of wider utility the references given are to the sections 
 and paragraphs of the Act and its schedules. These will enable the 
 practitioner on turning up a reference and finding no new decision on 
 it to at once refer to his text-book and there find, provided it has not been 
 published earlier than the Michaelmas Term of 1910, the information he 
 requires. In some cases the rules should be also read. Though not printed 
 here, it is thought well to give the reference to them as a reminder they 
 should be looked at. 
 
 ABLE TO EABN, Sched. I. (3) 
 
 as a physical fact, ib. ; neurasthenia, ib. ; neurasthenia due to inter- 
 vening cause, ib. ; suitable employment, ib. ; change in circumstances, 
 weekly payment to be reassessed, ib. ; evidence as to, ib. ; indirect 
 result of accident, ib. ; offer of work, misconduct in relation to, ib. 
 
 ABSENCE, UNITED KINGDOM, 
 
 failure to give notice due to, sect. 2 (1) (b) 
 compensation during, Sched. I. (18), rule 60 
 
 ACCIDENT, sect. 1 (1) 
 
 consequent results of, due to unreasonable conduct, aggravated by 
 
 disease, ib. 
 industrial diseases as an, sect. 8 (1) (a) 
 
 ADMINISTEATION, LETTEES OF, 
 
 dependant's right not derivative, sect. 13 
 
 AFFIDAVIT TO SUPPLEMENT JUDGE'S NOTES IN COURT OF 
 APPEAL, Sched. I. (4) 
 
 AGREEMENT, 
 
 need not be in writing ; may be implied and may be recorded by either 
 
 party, sect. 1 (3) ; what workman entitled to, ib. 
 should be recorded, Sched. II. (9) 
 refusal to record, ib. 
 effect of, ib., rules 6769 
 for lump sum must be recorded, Sched. II. (10) 
 with person under disability, ib. 
 worked out automatically, Sched. I. (16) 
 
 ALTERNATIVE REMEDIES, 
 against employer, sect. 1 (2) (6) 
 
 sub -contractors, sect. 4 
 
 third parties, sect. 6 
 on failure of action, to have compensation assessed, sect. 1 (4)
 
 120 General Index. 
 
 AMENDMENT OF ANSWER, rule 17 
 
 ANSWEE BY RESPONDENTS, 
 musfbe filed, rule 17 
 arbitrator's discretion as to amendment of, ib. 
 
 ANY EMPLOYMENT, DISTINCT CONTEACT OF SERVICE, 
 sect. 1 (1) 
 
 ANY QUESTION, 
 
 some question, condition precedent to arbitration, sect. 1 (3) 
 not settled by agreement, ib. ; what workman entitled to, ib. 
 
 APPEAL, 
 
 arbitrator may submit case for county court judge, Sched. II. (4) 
 
 to Court of Appeal, on question of law only, ib. 
 
 not by way of new trial, ib. 
 
 security for costs, ib. 
 
 Practice Rule 71 
 
 judge must take note, rule 34 
 
 substitute for note, Sched. II. (4), some miscellaneous decisions 
 
 APPEARANCE OF PARTIES, Sched. II. (C) 
 
 APPLICANT HAS SOUGHT OTHER REMEDIES AGAINST 
 
 employers, sect. 1 (2) (6) ; and sect. 1 (4) ; sub-contractor, sect. 4 
 third parties, sect. 6 
 
 APPORTIONMENT OF COMPENSATION, Sched. I. (8) 
 APPRENTICE, Sched. I. (1) (6), proviso (b) ; Sched. I. (16). See INFANTS. 
 
 ARBITRATION, 
 
 disputes to be settled by, sect. 1 (3) ; Sched. II. (1) et seq. 
 same question in dispute, condition precedent, sect. 1 (3) 
 question between employed and principal must be by, sect. 4 
 principal and employer must be by, ib. 
 
 third party may be by, sect. 6 
 employer and third party may be by, ib. 
 
 ARBITRATION ACT NOT TO APPLY, Sched. II. (4) 
 
 ARISING OUT OF AND IN THE COURSE OF, sect. 1 (1) 
 
 inference from facts ; accident on scene of duty ; presumption on scene 
 of duty; not on scene of duty; when in course of employment, 
 unreasonable conduct ; risks not specially incident to employment ; 
 causal relation, as affected by disobedience ; volunteer ; injuries 
 aggravated by disease ; causal relation affected by disease ; suspension 
 of employment, in case of seamen ; facilities for coming to or leaving 
 work 
 
 ARREST OF SHIP, sect. 11 
 
 ASSESSMENT OF COMPENSATION, 
 in case of death, Sched. I. (1) (o) 
 in case of incapacity, ib. 
 
 ASSESSORS. See MEDICAL REFEREES.
 
 General Index. 121 
 
 ATTENDANCE OF WITNESSES, Sched. II. (4) 
 
 AUTHOEITIES, PUBLIC, 
 
 employees within Act, sect. 13, Employer 
 
 AVERAGE WEEKLY EARNINGS, Sched . I. (2) 
 
 tips and extras ; concurrent contracts ; grade of employment, ib. 
 
 AWARD, 
 
 memorandum of, Sched. II. (9) 
 
 how enforced, rules 67 69 
 
 variation of, Sched. I. (9) ; amending slips, rule 28 (2) 
 
 against obtained by fraud, not to be registered, Sched. II. (9) (<Z) 
 
 setting aside a, improperly obtained, rule 70 
 
 review, Sched. I. (16) 
 
 BAILEE, 
 
 driver of taxi-cab, sect. 13, Workman 
 
 BANKRUPTCY, 
 
 of employer when insured, compensation when, sect. 5 
 
 preferential claim, sect. 5 
 
 right to examine employer as to insurance, rule 35 
 
 BURDEN OF PROOF, 
 
 Scotch case, dictum, Bowen, L.J. 
 
 CAPITALISATION OF WEEKLY PAYMENTS, Sched. I. (17) 
 against, must be recorded, Sched. II. (10) 
 
 CAUSAL RELATION, sect. 1 (1), Arising out 
 CERTIFICATE OF MEDICAL REFEREE, sect. 8 
 CHARGES, NONE ON WEEKLY PAYMENT, Sched. I. (19) 
 CHILD. See INFANT. 
 
 CIRCUMSCRIBED AREA OF OPPORTUNITY, Sched. I. (3), Able to 
 earn 
 
 CLAIM, sect. 2 
 
 CO-ADVENTURER OR SERVANT, sect. 13, Workman 
 
 COMMITTEE AS ARBITRATOR, Sched. II. (1) 
 appeal from, Sched. II. (1) 
 
 COMPENSATION, 
 
 amount of, Sched. I. (1), (2) and (3) 
 
 not chargeable, Sched. I. (19) 
 
 overpaid, ib. 
 
 claim for, sect. 2 
 
 preferential claim in bankruptcy, sect. 5 
 
 defendant's rights to, not derivative, sect. 13, Workman 
 
 after action dismissed, sect. 1 (4) 
 
 COMPOUNDING WEEKLY PAYMENTS, Sched. I. (17)
 
 122 General Index. 
 
 CONCURRENT CONTRACTS, Sched. I. (2) 
 
 CONTRACTING OUT OF WORKMEN'S COMPENSATION ACT, sect. 3 
 CONTRACT OF SERVICE, sect. 13, Workman 
 
 COSTS, Sched. II. (7), rule 61 et seq. 
 
 COURT FEES, 
 
 none prior to award, Sched. II. (13) 
 
 CROWN, 
 
 concurrent contracts with, sect. 9 
 
 DEATH, 
 
 compensation in case of, Sched. I. (1) 
 
 when arising out of employment, sect. 1 (1), Arising out 
 
 payment into Court, Sched. I. (5) 
 
 of arbitrator, Sched. II. (8) 
 
 DECLARATION OF LIABILITY OR SUSPENSORY ORDERS, Sched. 
 I. (3), Able to earn 
 
 DENIAL OF LIABILITY, 
 
 payment into Court with, rule 18 (10) 
 
 DEPENDANTS UNDER WORKMEN'S COMPENSATION ACT, 
 defined, sect. 13 ; determination of, Sched. I. (8) 
 rights not derivative, sect. 13, " Workman " 
 
 inter se, Sched. I. (8) 
 
 practice as to, rule 4 ; rights inter se, rule 5 
 annual compensation, Sched. I. (1) 
 partial, ib. 
 
 DEPENDENT UPON, sect. 13 
 a question of fact not law, ib. 
 
 DESERTION, sect. 13, " Workman " 
 
 DISABILITY, 
 
 payment to persons under, Sched. I. (7) 
 
 DISABLE ONE WEEK, sect. 1 (2) (a) 
 
 DISCOVERY, 
 
 none before award, rule 27 
 
 DISCRETION OF ARBITRATORS, 
 
 as to notice, sect. 2; costs, Sched. II. (7); answer, rule 17 
 
 DISEASES, INDUSTRIAL, sect. 8 
 
 DISPOSITION OF COMPENSATION, 
 in case of incapacity, Sched. I. (1), (2) 
 in case of death, ib. 
 
 DISPUTES, 
 
 some dispute condition precedent, sect. 1 (3) 
 
 DOUBLE REMEDY, NO, sect. 6 (1) 
 
 DUTIES OF JUDGE OF COUNTY COURT, Sched. II. (12)
 
 General Index. 123 
 
 EAENING CAPACITY, Able to earn, Sched. I. () 
 EAENINGS, Sched. I. (2) ; when over 250, sect. 13, Workman 
 
 EMPLOYEE, sect. 13 
 
 liability of, to principal, sect. 4 
 
 workman, sect. 1 (1) 
 
 EMPLOYMENT, 
 
 of seaman, sect. 7 and sect. 11 
 
 of a: casual nature, sect. 13, Workman 
 
 found from philanthropy, ib. 
 
 grade, Sched. I. (2) 
 
 concurrent, ib. 
 
 EVIDENCE, 
 
 miscellaneous points of, Sched. II. (4) 
 
 statement to doctor, how far, ib. 
 
 onus of proof, meaning of, ib. 
 
 rule as to, ib. 
 
 hearsay evidence not relaxed, ib. 
 
 in Court of Appeal by affidavit, etc., ib. 
 
 EXAMINATION, MEDICAL. See MEDICAL EXAMINATION. 
 
 FAMILY, MEMBER OF EMPLOYEE'S, sect. 13, Member of a family 
 
 FELLOW WOEKMAN, 
 
 liable as third party, sect. 6 
 
 FEAUD, 
 
 settlement obtained by, Sched. II. (9) 
 
 GOOD EECEIPT, Sched, II. (14) 
 GEADE, Sched. I. (2) 
 
 HEAESAY EVIDENCE, Sched. II. (4) 
 
 IGNOEANCE NO EXCUSE, sect. 2 
 
 ILLEGITIMATE CHILDEEN DEPENDANTS, sect. 13, Dependants 
 
 INCAPACITY, Able to earn, Sched. I. (3) 
 for one week, sect. 1 (2) 
 compensation during, Sched. I. (1) 
 but not necessarily co-extensive with injury, Sched. I. (17) 
 
 INDEMNITY, 
 
 employer's right against third parties, sect. 6 
 
 where third parties fellow servants, ib. 
 
 principal's right against employer and third party, sect. 4 
 
 INDUSTEIAL DISEASES, sect. 8 
 practice, rule 39
 
 124 General Index. 
 
 INFANTS, Sched. I. (1) (6), proviso (6) 
 
 their dependency question of fact, sect. 13, Workman 
 review of compensation to, Sched. I. (16) 
 compensation to be paid into court, Sched. I. (7) 
 as to agreements binding, Sched. II. (4), Some 
 settlements when infants involved, Sched. II. (4) 
 to be approved by registrar, Sched. II. (9) 
 if widow neglects, Sched. I. (9) 
 
 INFERENCE OF FACT, sect. 1 (1), Arising cut of 
 INJUEY BY ACCIDENT, sect. 1 (1) 
 
 INSURANCE, 
 
 when employer bankrupt, sect. 5 
 
 INVESTMENT AND PAYING OUT OF COUET, Sched. I. (10), (11) and 
 
 (12) 
 in the course of, sect. 1 (1), Arising out of 
 
 INVESTMENT COMPENSATION, 
 in case of death, Sched. I. (5) 
 
 disability, Sched. I. (7) 
 
 JUDGE'S NOTE, rule 34 
 
 JURISDICTION, Sched. II. (11) 
 
 in case of seamen, sects. 7 and 11 
 
 LEGAL DISABILITY, 
 
 payment into Court, Sched. I. (7) ; recording of agreements, Sched. 
 
 n.(9) 
 
 LIEN, 
 
 solicitor's lien, Sched. II. (14), rule 66 
 
 LIGHT WORK, Sched. I. (3), Able to earn 
 LIGHTNING AS CAUSE OF ACCIDENT, Beet. 1 (1) 
 LOCAL AUTHORITY, sect. 13, Employer 
 
 LUMP SUM, 
 
 agreement for, to be registered, Sched. II. (10) 
 cannot be changed, Sched. I. (19) 
 
 MAINTENANCE. OF INJURED SEAMAN, sect. 7 
 
 MANUAL LABOUR, 
 
 250Z. exception does not apply to, sect. 13, Workman 
 
 MASTER. See CONTBACT OF SERVICE. 
 
 MEDICAL EXAMINATION, Sched. I. (4), (14), (15), 
 obstruction of, ib. 
 
 payment, suspension during obstruction, Sched. I. (20)
 
 General Index. 125 
 
 MEDICAL PEAOTITIONEES, 
 
 as referees, sect. 10 ; may sit as assessors, Sched. II. (5), rule 52 ; 
 
 application for, rule 54 
 
 may not act if witness for either party, sect. 10 
 statements to, how far evidence, Sched. II. (4) 
 
 MEDICAL REFEREE, 
 generally, sect. 10 
 may act as assessor, Sched. II. (5) 
 may report under Sched. I. (15) and Sched. II. (15) 
 report under Sched. I. (15) conclusive 
 report under Sched. II. (15) not conclusive 
 not a witness, sect. 10 
 
 MEMBER OF A FAMILY, sect. 13 
 
 MEMORANDUM, 
 
 certificate under sect. 1 (4) to have force of in 
 
 recording of, Sched. II. (9) 
 
 effect when recorded, ib., rules 67 69 
 
 how rectified or set aside, ib. 
 
 when award may be varied, Sched. I. (9) 
 
 MISCONDUCT, sect. 1 (2), par. (c) 
 
 MISREPRESENTATION IN INDUSTRIAL DISEASE, sect. 8 (1) (&) 
 
 MISTAKE, 
 
 settlement in mistake, Sched. II. (9) 
 
 NAVAL AND MILITARY SERVICES, 
 excluded from Act, sect. 9 
 
 NEURASTHENIA, Sched. I. (3), Able to earn 
 
 NEW TRIAL, 
 
 no, Sched. II. (4) 
 
 review not to be re-hearing but a new hearing, Sched- I. (16) 
 
 NOTICE, sect. 2 
 of claim, ib. 
 
 OBSTRUCTING MEDICAL EXAMINATION, Sched. I. (4), (14), (15) 
 
 OFFER OF WORK, Sched. I. (3), Able to earn 
 
 ONUS OF PROOF, Sched. II. (4) 
 
 OVERLAPPING BENEFITS, Sched. I. (3), Eegard shall be had 
 
 OVERPAID COMPENSATION, Sched. I. (19) 
 
 PARTIAL INCAPACITY, 
 
 compensation during, Sched. I. (1) (b)
 
 126 General Index. 
 
 PARTIALLY DEPENDENT, sect. 13, Workman 
 compensation in case of, Sched. I. (1) 
 
 PARTICULARS OP ANSWER BY RESPONDENT rule 17 
 PAYMENT ALLOWANCE OR BENEFIT, sect. 7 
 
 PAYMENT INTO COURT OP COMPENSATION, 
 in case of death, Sched. I. (5), rule 56 
 
 disability, Sched. I. (7), rule 57 
 lump sum, Sched. I. (17), rule 59 
 
 PERSONAL NEGLIGENCE, 
 
 liability for unaffected by Act, sect. 1 (2) (b) 
 
 PRACTICE, 
 
 some points of, Sched II. (4), as to new trial, ib. 
 settlements when infants, ib. 
 
 PRINCIPALS, 
 
 liable under sect. 4 
 
 right to be indemnified by employer, ib. 
 
 third parties, sect. 6 
 
 PRODUCTION OP DOCUMENTS, Sched. II. (4) 
 
 QUESTION, 
 
 some, condition precedent to arbitration, sect. 1 (3) 
 
 QUESTION OF LAW, 
 Sched. I. (4) 
 
 REASONABLE CAUSE FOR NO NOTICE, sect. 2 
 EECEIPT GOOD, Sched. II. (14) 
 
 EECORD OF AGREEMENT, Sched. II. (9) 
 actual agreement to be recorded, ib. 
 after workman's recovery, ib. 
 agreements for redemption, ib., must be recorded, Sched. II. (10) 
 
 EECRUDESCENCE OF INJURY, sect. 1 (2); 
 RECTIFICATION OF REGISTER, Sched. II. (9) 
 REDEMPTION OF WEEKLY PAYMENT, Sched. I. (17) 
 
 EEFEREE. See MEDICAL EEFEREE. 
 as assessor, Sched. II. (5)1 
 
 EEFEEENCES TO MEDICAL EEFEEEES, rule 82 
 by mutual agreement, Sched. I. (15) 
 
 EEGAED SHALL BE HAD, Sched. I. (3) 
 EEGISTEEED SHIP, sect. 7 
 
 EEGISTRAR, COUNTY COURT, 
 
 refusal to register memorandum, Sched. II. (7)
 
 General Index. ' 127 
 
 EEMEDY, NO DOUBLE, sect. 6 (1) 
 
 EEPEESENTATIVE, 
 
 legal, included as workman, sect. 13, Workman 
 
 EESPONDENTS MUST FILE ANSWEE, rule 17 
 EETUENS AS TO COMPENSATION, sect. 10 
 
 EEVIEW, Sched. I. (16) 
 not a re-hearing, ib. 
 weekly payment, SHALL IN NO CASE EXCEED, all circumstances to be 
 
 considered, Sched. I. (3) 
 of costs, rule 62 
 of taxation by judge of county court, rule 63 
 
 EULES OF COUET, Sched. II. (12) 
 
 SCHEME FOE CONTEACTING OUT, sect. 3 
 SEAMEN, sect. 7 
 
 SEEIOUS AND WILFUL MISCONDUCT, sect. 1 (2) (c) 
 SEEVANT. See CONTRACT OF SERVICE, sect. 13, Workman 
 
 SEEVICE, 
 
 contract of, ib. 
 
 SEEVICES, 
 
 how regarded in assessing compensation, Sched. I. (1), (3) 
 
 SETTLEMENT, 
 
 obtained by fraud, etc., Sched. II. (9) 
 
 dependants' right not derivative, sect. 13, Workman 
 
 STALE AGEEEMENTS, 
 
 recording of and review, Sched. I. (16) 
 
 STEANGEE, sect. 1 (1), arising out of volunteer 
 SUB-CONTEACTLNG, sect. 4 
 
 SUITABLE EMPLOYMENT, Sched. I. (3), Able to earn 
 SUSPENSION OF WEEKLY PAYMENT, Sched. I. (20) 
 SUSPENSOEY OEDEES, Sched. I. (3), Able to earn 
 
 TERMINATION OF WEEKLY PAYMENTS NO BAE TO DEPEN- 
 DANTS' EIGHTS, 
 sect. 13, " Workman " 
 rights on recrudescence of injury, Sched. I. (16) 
 
 THIED PAETIES, 
 
 liability of, sect. 6 
 TIME FOE TAKING PEOCEEDINGS, sect. 2
 
 128 General Index. 
 
 TIPS AND EXTRAS AS EAENINGS, sect. 13, Workman; Sched. I. (3), 
 Able to earn 
 
 TOTAL INCAPACITY, Sched. I. (1) 
 
 TEANSFEK OF MONEY IN COURT, Sched. I. (6)J 
 
 VARIATION OF AWARDS IN CASE OF WIDOWS, Sched. I. (9) 
 VOLUNTEER, sect. 1 (1), Arising out of 
 
 WAGES IN EXCESS OF 2501. , sect. 13, Workman 
 
 WANT OF CAUSAL RELATION, sect. 1 (1), Arising out of 
 
 WEEKLY AVERAGE, Sched. I. (1), (2) 
 
 WEEKLY PAYMENTS, 
 
 not chargeable, Sched. I. (19) 
 
 how estimated on review, Sched. I. (3) 
 
 WILFUL MISCONDUCT, sect. 1 (2) (c) 
 
 WINDING-UP OF COMPANIES, 
 
 compensation preferential claim, sect. 5 (3) 
 
 WORK, 
 
 able to earn, Sched. I. (3) 
 
 going to, etc., sect. 1 (1), Arising out of 
 
 WORKMAN, sect. 13 
 
 leaving United Kingdom, Sched. I. (18) 
 fellow workman liable as third party, sect. 6 
 member of employer's family, sect. 13, Workman 
 
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