EMPLOYERS' LIABILltY. WOEKMEN'S COMPENSATION ACT, 1897, EMPLOYERS' LIABILITY ACT, 1880. A. ROBIN SON^^ Q- STEV Q Of U To Vol. I.- n.- m.- IV.- V.- VI.- vn.- VoL. X THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES iNE, LoNDOJi. BY I.A., I Scotch Bar, ES olumes. w— Deed. Dramatic and pyright. Estate, lecution. idemnity. irance. ord and Tenant. ess.) & Subscription for Five Volumes, paid in advance, £1 per Vol. *** Sjjecimen Volume sent on application. NOW READY. Index to Vols. I. to X. With ADDENDA from 1894 to 1896 inclusive. Price, bound in half vellum, net 20s. ; to Subscribers to the Work, lOs. OPINIONS OF THE PRESS. " A perfect storehouse of tlie in-iuciples established aud illustrated hy cm- case law and that of the Uuitt'd States."— Zrtw Times. 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Subscribers to the LAW JOTJIIKAL KEPORTS have the additional advantage of obtaining, for a further subscription of £ 1 per annum, THE I.AAV JOURNAL NEAVSPAPER, Published Weekly (price 6(/.), containing' the best weekly Notes of all decided Cases of the week, New Orders and Rules of Court, Cause Lists, Articles by Eminent Specialists, Personal Information, Notices of aU new Law Books, &c. ^ ^ * All Standard Law Works are kept in Stock, in law calf and other bindings. EMPLOYERS^^IABILITY UNDER THE WOEKMEN'S COMPENSATION ACT, 1897, AND THE EMPLOYERS' LIABILITY ACT, 1880. BY AETHUR EOBINSON, B.A., BARRISTEB-AT-LAW Of the Middle Temple and North Eastern Circuit ; late Scholar of Jesus College, Cambridge ; one of the Examiners of the Sigh Court of Justice ; and Author of'''' The Law Relating to Income Tax." LONDON; STEVENS AND SONS, LIMITED, 119 & 120, CHANCERY LANE, Sato §ubli^]^m'. 1898. LOIfDON : PEINTED BY C. ¥. ROWOKTU, GEEAT NEW STREET, FETTER L.VNK, E.C. ru- to C3 -a; PREFACE. In this little book the author has attempted to deal with the liability of employers mider the Employers' Liability Act, 1880, and the Workmen's Compensation Act, 1897. The —J book commences with a short summary of the 5 law, then follow the two Acts, which are dealt a with section by section, and the conclusion a is devoted to the common law defences to actions under the Employers' Liability Act. It is hoped that this arrangement will prove useful. December^ 1897. o2 433394 CONTENTS. — ♦ — PAGE SXIMMAEY OP THE LaW ------- 1 The Workmen's Compensation Act - - - - - 13 The E:mployeks' Liability Act - - - - - 46 County Couht Eules applicable to the Employees' Liability Act - - - - - - --71 Common Law Defences to Actions fnder the Em- ployers' Liability Act ------ 76 APPENDICES. A. The Fatal Accidents Act, 1846 (Lord Campbell's Act), 9 & 10 Vict. c. 93 - - - - - - 97 Lord Campbell's Act Amendment Act, 27 & 28 Vict. c. 95 - - - - 102 B. The Factory and Workshops Act, 1878, 41 & 42 Vict. c. 16, Fourth Schedule ----- 105 C. The Doctrine oe Ees Ipsa Loquitur _ - - 109 D. Form of Application for Certificate of Eegistrar OF Friendly Societies to Scheme under Work- wen's Compensation Act - - _ _ - 113 INDEX ---------- 115 TABLE OF CASES. FAOB Amos V. DufEy, 6 T. L. E. 339 - - - - - - 77 Armstrong V. S. E. E., 11 Jurist, 758 - - - - - 100 Bacon v. Davis, 3 T. L. E. 557 48 Baddeley v. Earl Granville, 19 Q. B. D. 423 ; 56 L. J. Q. B. 501 ; 57 L. T. 268 ; 36 W. E. 63 ; 51 J. P. 822 - - - 78 Balleny v. Cree, 1 1 Sc. Sess. Gas. 3rd ser. 626 - - - 6 Barber v. Burt, 10 T. L. E. 383 - - - - - - 53 Baxter v. Wyman, 4 T. L. E. 255 ----- 48 Bayley v. Mancliester, Sheffield and Lincolnshire Eail. Co., 8 G. P. 148 ; 42 L. J. C. P. 78 ; 28 L. T. 366 - - - 90 Beckett v. Gorporation of Manchester, 52 J. P. 346 - - 65 Biid V. G. N. E., 28 L. J, Ex. 3 - - - - - - 112 Blake v. Midland Eail. Co., 18 Q. B. 93 ; 21 L. J. Q. B. 233 ; 16 Juiist, 562 --------100 Bortick, v. Head, Wrightson, & Co., 53L.T. 909 ; 34 W. E. 102 ; 50 J. P. 327 ; 2 T. L. E. 103 60 Bound V. Lawrence, (1892) 1 Q. B. 226 ; 61 L. J. M. C. 21 ; 65 L. T. 844 ; 40 W. E. 1 ; 56 J. P. 118- - - - 69 Bourke v. Cork and Macroom Eail. Co., 4 L. E. Ir. 682 - 99 Bradburn v. G. W. E., 10 L. E. Ex. 1 ; 44 L. J. Ex. 9; 31 L. T. 464 ; 23 W. E. 468 - - - - - - - 100 BramaU v. Lees, 29 L. T. (O. S.) Ill - _ _ - 99 Brannigan v. Eobinson, (1892) 1 Q. B. 344 ; 61 L. J. Q. B. 202 ; 66 L. T. 647 ; 56 J. P. 328 - - - - - 51 Bromley v. Cavendish Spinning Co., 2 T. L. E. 881 - - 47 Brooke v. Eamsden, 63 L. T. 287 ; 55 J. P. 262 - - - 80 Brown v. Butterley, 53 L. T. 964 : 50 J. P. 230 ; 2 T. L. E. 159 ---------- 91 Bunker v. Midland Eail. Co., 47 L. T. 476; 31 W. E. 231 - 53 Butler V. Birnbaum, 7 T. L. E. 287 49 Byrne v. Boadle, 2 H. & G. 722 ; 33 L. J. Ex. 13; 9 L. T. 450; 12 W. E. 279 - Ill a 3 VI TABLE OF CASES. PAGE Cahalane v. North Metropolitan Eail. and Canal Co., 12 T. L. E. (ill --------- 94 Carpue v. London and Brighton Bail. Co., 5 Q. B. 747 ; D. & M. 608 ; 3 Eail Cas. 692 ; 13 L. J. Q. B. 133; 8 Jur. 464- - - - - - - - - - - 112 Carter v. Drysdale, 12 Q. B. D. 91 ; 32 W. E. 171 ; 53 L. J. Q. B. 557 - - - - - - - - - 65 Church V. Appleby, 58 L. J. Q. B. 144 ; 60 L. T. 542 ; 5 T. L. E. 88 - - - - - - - - - - 82 Clarke v. Holmes, 7 H. & N. 937 ; 31 L. J. Ex. 356; 8 Jm\ (N. S.) 992; low. E. 405 ------ 79 Clarkfion v. Musgrave, 9 Q. B. D. 386; 51 L. J. Q. B. 525; 31 W. E. 47 - - - - - - - - - 65 Claxton V. Mowlem, 4 T. L. E. 756 ----- 55 Clements v. L. & N. W. E., 9 E. 641 ; (1894) 2 Q. B. 482 ; 63 L. J. Q. B. 837 ; 70 L. T. 896 ; 42 W. E. 663 ; 58 J. P. 818- - - - - - - - - - - 88 Condon v. Great Southern and Western Eail. Co., 16 Ir. C. L. E. 415 - - - - - - - - 99 Connolly v. Young's Paraffin Oil Co., 22 Sc. Sess. Cas. 4th Ser. 80- - - - - - - --62 Conroy v. Peacock, (1897) 2 Q. B. 6; 66 L. J. Q. B. 425; 76L. T. 465; 45W. E. 502; 61J. P. 310 - - - 66 Cook V. North Metropolitan Tramway Co., 18 Q. B. D. 683 ; 56 L. J. a B. 309; 56 L. T. 448; 57 L. T. 476; 35 W. E. 577 ; 51 J. P. 630 - - - - - - - 68, 69 Corcoran v. East Surrey Ironworks Co., 58 L. J. Q. B. 145; 5 T. L. E. 103 - - - - - - - - 51 Cotton V. Wood. 8 C. B. (N. S.) 568 ; 29 L. J. C. P. 333; 7 Jur. (N. S.) 168 - - - - - - - - 109 Cowler V. Moresby Coal Co., 1 T. L. E. 575 - - - 68 Cox V. G. W. E., 9 Q. B. D. 106 ; 30 W. E. 816; 47 J. P. 116- - - - - - - - - - 56, 57 Cripps V. Judge, 13 Q. B. D. 583; 53 L. J. Q. B. 517; 51 L. T. 182; 33 W. E. 35 ------ 48 Crocker v. Banks, 4 T. L. E. 324 - - - - - - 85 Croft V. Alison, 4 B. & A. 590 - - - - - - 15 Dalton V. S. E. E., 4 C. B. (N. S.) 296 ; 27 L. J. C. P. 227 ; 4 Jur. (N. S)711 - - - - - - - - 100 Dickinson v. N. E. E., 2 n. & C. 735; 33 L. J. Ex. 91; 9L. T. 299; 12W. E. 52 ----- - 100 Doe V. St. Katherine's Dock Co., 3 T. L. E. 607 - - - 92 TABLE OF CASES. Vll PAGE Donovan v. Laiug, (1893) 1 Q. B. 629 ; 4 R. 317 ; 63 L. J. Q. B. 25 ; 68 L. T. 512 ; 41 W. R. 455 ; 57 J. P. 583 - 93, 95 Doughty V. Firbank, 10 Q. B. D. 358 ; 52 L. J. Q. B. 480 ; 48 L. T. 530; 48 J. P. 55- - - - - - - 57 Dublin, Wicklow, and Wexford Rail. Co. v. Slatteiy, 3 App. Cas. 1155; 39 L. T. 365; 27 W. R. 191 . _ _ 85 Duckworth v. Johnson, 4 II. & N. 653 ; 29 L. J. Ex. 25 ; 5 Jul-. (N. S.) 630 - - - - - - - - 99 Dunn V. Butler, 1 T. L. R. 476 - - - - - 71 Dynen v. Leach, 26 L. J. Ex. 221 81 Evans v. Lady Mostyu, 2 C. P. D. 547 ; 47 L. J. M. 0. 25 ; 36 L. T. 856 - - - - - - - 31, 32 Fletcher v. L. & N. W. Rail. Co., (1892) 1 Q. B. 122; 61 L. J. Q. B. 24; 65 L. T. 605; 40 W. R. 182; 8 T. L. R.77 - 78 Franklin v. S. E. R., 3 H. & N. 211 ; 4 Jur. (N. S.) 565 - 98 Fraser v. Eraser, 9 Sc. Sess. Cas. 4th Ser. 896 - - - 58 George (The) and Richard, 3 L. R. (Adm.) 466; 24 L. T. 717 ; 20 W. R. 246 - - - - - - - 100 Gibbs V. G. W. R., 12 Q. B. D. 208 ; 32 W. R. 329 ; 53 L. J. Q. B. 543 ; 50 L. T. 7 ; 48 J. P. 230 - - - - - 56 Giles V. Thames Ironworks Co., 1 T. L. R. 469 - - 51, 59 Gill V. Thornycroft, 10 T. L. R. 316 - - - - - 48 Grand Trunk Railway of Canada v. Jennings, 13 ApjD. Cas. 800 ; 58 L. J. P. C. 1 ; 59 L. T. 679 - - - - 100 Griffiths V. Earl of Dudley. 9 Q. B. D. 357 ; 51 L. J. Q. B. 543; 47 L. T. 10 ; 30 W. R. 797; 46 J. P. 711 - - 87 Griffiths V, London and St. Katheriue's Dock Co., 13 Q. B. D. 259 ; 53 L. J. Q. B. 504 ; 51 L. T. 533 ; 33 W. R. 35 ; 48 J. P. 328 - - - - - - - - - 77 G. W. R. V. Braid, 1 Moo. P. C. (N. S.) 101 - - - - 111 Hammack v. White, 11 C. B. N. S. 588; 31 L. J. C. P. 129; 8 Jurist (N. S.) 796 ; 5 L. T. 676 ; 10 W. R. 230 - 109, 110 Hanson v. L. & Y. Rail. Co., 20 W. R. 297 - - -49, 109 Harrison v. L. & N. W. Rail. Co. 1 T. L. R. 519 - - 98 Hearn v. Phillips, 1 T. L. R. 475 - - - - - - 65 Heaven v. Pender, 11 Q. B. D. 503 ; 52 L. J. Q. B. 702 ; 49 L. T. 357 ; 47 J. P. 87, 709 ------ 87 Heske v. Samuelson, 12 Q. B. D. 30 ; 53 L. J. Q. B. 45 ; 49 L. T. 474 - - - - - - - - - 48 Hetherington v. N. E. R., 9 Q. B. D. 160 ; 51 L. J. Q. B. 495; 30 W. R. 797 - 99 Vlll TABLE OF CASES. PAOB Hicks V. Newport Rail. Co., 4 B. & S. 403, n. - - - 100 Higgs V. Maynard, 1 H. & E. 581 ; 12 Jur. (N. S.) 705 ; 14 L. T. 332 ; 14 W. E. 610 ----- - 110 Holleran v. Bagnell, 6 L. E. Ir. 333 - - - - - 100 Holmes v. N. E. E., L. E. 6 Ex. 123 ; 40 L. J. Ex. 121 ; 24 L. T. 69 --------- 87 Hooper v. Holme, 13 T. L. E. 6 - - - - - - 66 Howard v. Bennett, 58 L. J. Q. B. 129 ; 60 L. T. 152 ; 53 J. P. 359 ; 5 T. L. E. 136 - - - - - - 52 Howe y. Mark Finch & Co., 17 Q. B. D. 187 ; 34 W. E. 593 ; 5 IJ. P. 276 - - - - - - - - - 50 Howells V. Landore Steel Co.. L. E. 10 Q. B. 62 ; 44 L. J. Q. B. 25; 32L. T. 19; 23 W. E. 335 - - - - 6 Hunt V. G. N. E., (1891) 1 Q. B. 601 ; 60 L. J. Q. B. 216 ; 64 L. T. 418 ; 55 J. P. 470 - - - - - - 68 Jackson v. Hill, 13 Q. B. D. 618 ; 49 J. P. 118 - - - 68 Jones V. Bui'ford, 1 T. L. E. 137 - - - - - - 49 Kearney v. L. B. & S. C. E., L. E. 6 Q. B. 759 ; 40 L. J. Q. B. 285; 24L. T. 913; 20 W. E. 24 - - - -112 Keen v. Millwall Dock Co., 8 Q. B. D. 482 ; 51 L. J. Q. B. 277 ; 30 W. E. 503 ; 46 J. P. 435 - - - - 61, 66 Kellard v. Eooke, 21 Q. B. D. 367 ; 57 L. J. Q. B. 599 ; 36 W. E. 875 ; 52 J. P. 820 - - - - - 54, 67 Kiddle v. Lovett, 16 Q. B. D. 605 ; 34 W. E. 518 - - - 58 Leech v. Gartside, 1 T. L. E. 391 ; 17 L. J. Q. B. 132 ; 12 Jur. 623 - - - - 70 Levering v. St. Katharine's Docks Co., 3 T. L. E. 607 - - 92 Lilley v. Elwin, 11 Q. B. 742 ------ 69 Limpus V. London General Omnibus Co., 1 H. & C. 526 ; 32L. J. Ex. 34; 7L.T.641; 9 Jur. (N. S.) 333; llW.E. 149- - - - - - - - - - 15, 90 Manning v. Adams, 32 W. E. 430 ; W. N. (1883) p. 223 - 93 Manzoni v. Douglas, 6 Q. B. D. 145 ; 50 L. J. Q. B. 289 ; 29 W. E. 425; 45 J. P. 391 - - - - - -111 Marley v. Osborn, 10 T. L. E. 388 - - - - - 53 McCord V. Cammell, 12 T. L. E. 98; 65 L. J. Q. B. 202; (1896) A. C. 57 ; 73 L. T. 634 ; 60 J. P. 180 - - 56, 57 M'Donagh v. P. & W. MacLellan, 13 Sc. Sess. Cas., 4th Ser. 100- - - - - - - - - --61 McFarlane v. Thompson, 12 Sc. Sess. Cas., 4th Ser. 232 - 111 TABLE OF CASES. IX PAGE McFayden v. Dalmellington Iron Co., 24 Sc. Sess. Cas., 4th Ser. 327 - - - - - - - - - (Jl McGiffen v. Palmer's Shipbuilding Co., 10 Q. B. D. 1 ; 52 L. J. a B. 25; 47 L. T. 346; 31 W. E. 118; 47 J. P. 70 - - - - - 47 McLeod V. Pirie, 20 Sc. Sess. Cas., 4th Ser. 381 - - - 06 Millward v. Midland Bail. Co., 14 Q. B. D. 68; 54 L. J. Q. B. 202; 52 L. T. 255; 33 W. E. 366; 49 J. P. 453 - 53 MofPatt V. Bateman, 3 L. E. P. C. 115; 22 L. T. 140; 6 Moore, P. C. C. N. S. 369 - - - - - - 110 Moore v. Gimson, 58 L. J. Q. B. 169 ; 5 T. L. E. 177 - - 58 Moore v. Palmer, 2 T. L. E. 780 - - - - - 94 Moore v. Eoss, 17 Sc. Sess. Cas., 4th Ser. 796 - - - 66 Morgan v. Hutchins, 59 L. J. Q. B. 197; 38 "W. E. 412; 6 T. L. E. 219 - - - - - - - - 50 Morgan v, London General Omnibus Co., 13 Q. B. D. 832 ; 53 L. J. Q. B. 352 ; 51 L. T. 213 ; 32 W. E. 759 ; 48 J. P. 503 - - - - - - - - - - 68, 69 Morrison v. Baird, 10 Sc. Sess. Cas., 4th Ser. 271 - - 92 Moyle V. Jenkins, 8 Q. B. D. 116 ; 51 L. J. Q. B. 112 ; 46 L. T. 472; 30 W. E. 324 - - - - - - - 61 Munday v. Thames Ironworks Co., 10 Q. B. D. 59; 52 L. J. Q. B. 119; 47L. T. 851 ------ 63 Murphy v. Wilson, 52 L. J. Q. B. 524 ; 48 L. T. 788 ; 47 J. P. 565 ; 48 J. P. 24 - - - - - - - 57 Mun-ay v. Currie, L. E. 6 C. P. 24 ; 40 L. J. C. P. 26 ; 23 L. T. 557 ; 19 W. E. 104 - - - - - - 94 NicoU V. Greaves, 17 C. B. N. S. 27; 33 L. J. C. P. 259; 10 Jur. (N. S.) 919 ; 10 L. T. 531 ; 12 VV. E. 961 - - 69 Noel V. Eeckuth Foundry Co., 12 T. L. E. 248 ; 65 L. J. Q. B. 330; (1896) 1 Q. B. 453; 74 L. T. 196; 44 W. E. 407 ----- 60 Noonan v. Dublin Distillery Co., 32 L. E. Ii\ 399 - - - 59 Nowlan v. Ablett, 2 C. M. & E. 54 ; 1 Gale, 72 ; 5 Tyr. 709 69 Oakes v. Monkland Iron Co., 11 Sc. Sess. Cas., 4th Ser. 579 ---------- 70 Oldfield V. Purness, 58 J. P. 102 - - - - - - 92 Osborne v. Jackson and Todd, 11 Q. B. D. 619 ; 48 L. T. 642---- 52 Osborne v. L. & N. W. Eail. Co., 21 Q. B. D. 220 ; 57 L. J. Q. B. 618 ; 59 L. T. 227 ; 36 W. E. 809 ; 52 J. P. 806 - 80 Pack V. Hay ward, 5 T. L. E. 233 - - - - - - 49 X TABLE OF CASES. PAQB Paley v, Garnett, 16 Q. B. D. 52 ; 34 W. E. 295 ; 50 J. P. 469 ---------- 50 Pearcfi v. Lansdowne, 62 L. J. Q. B. 441 ; 69 L. T. 316 ; 57 J. P. 760 - - - 67, 68, 69 Pegram v. Dixon, 55 L. J. Q. B. 447 ; 51 J. T. 198 ; 2 T. L. E., 603, 801 -------- 47 Previsi v. Gatti, 58 L. T. 762 ; 36 W. E. 670 ; 52 J. P. 646 ; 4 T. L. E. 487 - - - - - - - - 65 Pym V. G. N. E. 4 B. & S. 396 ; 32 L. J. Q. B. 377 ; 10 Jur. (N. S.)199; 11 W. E. 922 - - - - - - 100 Eadley v. L. & N. W. Bail. Co., 1 A. 0. 754; 46 L. J. Ex. 573 ; 35 L. T. 637 ; 25 W. E. 147 - - - - - 84 Eapson v. Cubitt, 9 M. & "W. 710 ; Car. & M. 64; 6 Jur. e06- - - - - - - - - - - 91 Eay V. Wallis, 51 J. P. 519 ; 3 T. L. E. 777 - - - 66 Bead v. G. E. E., L. E. 3 Q. B. 555 ; 18 L. T. 82 ; 16 W. E. 1040 - - - - - - - - --101 Eeadhead v. Midland EaH. Co., L. E. 4 Q. B. 379; 38 L. J. Q. B. 169; 17 W. E. 737; 9B. &S. 519 - - - 83 Eeedie v. L. & N. W. EaU. Co., 6 Bail. Cas. 184; 4 Ex. 244 ; 20 L. J. Ex. 65 - - - - - - - 91 E. V. Eegistrar of Leeds Connty Coui't, 16 Q,. B. D. 691 ; 55 L. J. Q. B. 365 ; 54 L. T. 873 ; 34 W. E. 487 - - 72 Eobiuson v. John Watson, 20 Sc. Sess. Cas. 4th Ser. 144 50, 59 Eourke v. White Moss CoUiery Co., 2 C. P. D. 205 ; 46 L. J. C. P. 283 ; 36 L. T. 49 ; 25 W. E. 263 - - - - 95 Eowley v. L. & N. W. EaH. Co., 8 Ex. 221 - - - - 99 Sanders v. Barker, 6 T. L. E. 324 - - - - - 77 Saxton V. Hawkesworth, 26 L. T. 851 - - - - - 77 Scott V. London Dock Co., 3 H. & C. 596 ; 34 L. J. Ex. 220; 13 L. T. 148 - - - - - - - 109, 112 Searle v. Lindsay, 11 C. B. N. S. 429 ; 31 L. J. C. P. 106 ; 8 Jur. (N. S.) 746; 5 L. T. 427; 10 W. E. 89 - - - 6 Shaffers i'. General Steam Navigation Co., 10 Q. B. D. 356; 52 L. J. Q. B. 260 ; 48 L. T. 228 ; 31 W. E. 656 ; 47 J. P. 327 ---------- 67 Skinner v. L. B. & S. C. E., 5 Ex. 787 ; 15 Jur. 299 - - 111 Smith V. Baker, (1891) A. C. 325 ; 60 L. J. Q. B. 683; 65 L. T. 467 ; 55 J. P. 660 ; 40 W. E. 392 - - - 78, 80 Snowdon v. Baynes, 25 Q. B. D. 193; 59 L. J. Q. B. 325 ; 38 W. E. 744; 55 J. P. 133 53 TABLE OF CASES. XI PAGE Stanton v. Scmtton, 5 R. 244 ; G2 L. J. Q. B. 405 ; 9 T. L. R. 236 - - - - - - - - 48, 50 Stephen v. Thurso Police Commissioners, 3 Sc. Sess. Cas. 4th Ser. 535 - - - - - - - - - 91 Stimpson v. Wood, 57 L. J. Q. B. 484 ; 59 L. T. 218 ; 36 W. R. 734 ; 52 J. P. 822 - - - - - - 98 Stokes V. Eastern Counties Rail. Co., 2 F. & F. 691 - - 83 Stone V. Hyde, 9 Q. B. D. 76 ; 51 L. J. Q. B. 452 ; 46 L. T. 421; 30 W. R. 816; 46 J. P. 788 - - _ - . 65 Storey v. Ashton, L. R. 4 Q. B. 376 ; 38 L. J. Q. B. 223 ; 17 W. R. 727; lOB. &S. 337 - - - - - - 90 Stott V. Dickinson, 34 L. T. 291 - - - - 31, 32 Sweeney v. Duncan, 19 Sc. Sess. Cas. 4th Ser. 870 - - 93 Sykes v. N. E. R., 44 L. J. C. P. 191 ; 32 L. T. 199; 23 W. R. 473 - - - - - - - - - 99 Tate y. Latham, (1897) 1 Q. B. 502; 66 L. J. Q. B. 349; 76 L. T. 336 ; 45 W. R. 400 - - - - - - - 50 Thomas v. Quartermaine, 18 Q. B. D. 685 ; 56 L. J. Q. B. 340; 57 L. T. 537; 35 W. R. 555; 51J. P. 516 - 57,82 Thomson v. Dick, 19 Sc. Sess. Cas. 4th Ser. 804 - - - 49 Thomson v. Robertson, 12 Sc. Sess. Cas. 4th Ser. 121 - 65 Thrussel v. Handyside, 20 Q. B. D. 359 ; 57 L. J. Q. B. 347 ; 58 L. T. 345 ; 52 J. P. 279 - - - - - 87 Tolhausen v. Davies, 57 L. J. Q. B. 392 ; 59 L. T. 436 ; 52 J. P. 804 - - - - - - - - - 86 Tuff V. Warman, 5 C. B. N. S. 573 ; 27 L. J. C. P. 322 ; 5 Jut. (N. S.) 222 - - - - - - - - 84 Waite V. N. E. R., El. Bl. & El. 719 ; 28 L. J. Q. B. 258 ; 5 Jul'. (N. S.)936; 7 W. R. 311 ----- 85 Walker v. Olsen, 9 Sc. Sess. Cas. 4th Ser. 946 - - - 112 Waller v. S. E. R., 2 H. & C. 102 ; 32 L. J. Ex. 205 ; 9 Jur. (N. S.) 501; 8L. T. 325; 11 W. R. 731 - _ - 6 Walsh V. Whiteley, 21 Q. B. D. 371; 57 L. J. Q. B. 586; 36 W. R. 876 ; 53 J. P. 38 - - - - - - 50 Welfare v. Brighton Rail. Co., L. R. 4 Q. B. 693; 38 L. J. Q. B. 241 ; 20L. T. 743; 17 W. R. 1065 - 110,111,112 Whatley v. HoUoway, 62 L. T. 639 ; 54 J. P. 645 ; 6 T. L. R. 353-- _-_--_-_ 55 Whatman v. Pearson, 3 C. P. 422 ; 37 L. J. Q. B. 156 ; 18 L. T. 290 ; 16 W. R. 649 - - - - - - 89 Wigmore v. Jay, 5 Ex. 354 ; 19 L. J. Ex. 300 ; 14 Jur. 837 6 Xll TABLE OF CASES. PAGE Wild V. Waygood, (1892) 1 Q. B. 783 ; 61 L. J. Q. B. 391 ; 66 L. T. 309 ; 40 W. E. 501 ; 56 J. P. 389 - _ - 54 WiUetts V. Watt, (1892) 2 Q. B. 92 ; 61 L. J. Q. B. 540 ; 66 L. T. 818 ; 40 W. E. 487 ; 56 J. P. 772 - - - 46, 47 Wilson V. Glasgow Tramways Co., 5 Sc. Sess, Cas. 4tli Ser. 981- - - - - - - - - --68 Wood V. Don-aU & Co., 2 T. L. E. 550 - - - - 47 Woodley v. Metropolitan Eail. Co., 2 Ex. D. 384 ; 46 L. J. Ex. 521 - - - - - - - - - - 82 Wright V. Howard Baker & Co., 21 Sc. Sess. Cas. 4tli Ser. 25 ---------- 88 Wright V. L. & N. W, Eail. Co., 1 Q. B. D. 252 ; 45 L. J. Q. B. 570 ; 33 L. T. 830 - - - - - - 87 Wright V. Wallis, 3 T. L. E. 779 - - - - - - 52 Yarmouth v. France, 19 Q. B. D. 647 ; 57 L. J. Q. B. 7 ; 36 W. E. 281 - - - - - - 51, 68, 77, 79 EMPLOYERS' LIABILITY. SUMMARY OF THE LAW. It is hardly necessary to remark that a great change in the Law of Employers' Liability has been effected by the Workmen's Compensation Act, 1897. At common law, the position of a workman who Liability had suffered personal injuries was inferior to that of employer a stranger. Not only was every defence that could ^* ^°^- be used against a stranger open to the employer, but, in addition, where the injury to the workman was caused by the negligence of a fellow-servant, the employer could raise the defence of " common em- ployment," since the workman, in engaging in the employment, was considered to have accepted this kind of risk. The Employers' Liability Act, 1880, was directed —under solely against the defence of "common employment." pioyers' The effect of this Act, in actions which come within I^iability 1 • i 1 ii 1 -7 Act, 1880 its sphere, is to place the workman m the same portion (43 & 44 as that of a stranger. Vict. c. 42): Far different is the effect of the "Workmen's Com- —under pensation Act, 1897. This Act, in those employ- ^en?'*'^''' ments to which it applies, places the workman in a Compensa- far superior 2)Oiiitio)i to that of a stranger. It practi- isoy (6o'& cally makes the employer liable for all accidents. '^^Tx*'*' R. B SUMMARY OF THE LAW. It is intended that, in sucli employments, payment of compensation to workmen for accidents shall be part of the cost of carrying on the trade. This, in England, is a new principle, and it remains to be seen how far it will ultimately affect the wages of the workmen. The fact that, in these employments, no less than three of the principal defences wliich, in the past, employers have used against their work- men, have been completely swept away, shows how great an alteration has been made in the law. These defences were : — (a) That the injury arose from a risk to which the workman exposed himself with know- ledge and of his own free wll. " Volenti non fit injuria.''' (b) Inevitable accident, including all cases where the workman failed to prove negligence. (c) Contributory negligence of the workman. It is still a defence if it is proved that the injury is attributable to the serious and wilful misconduct of the workman, but this can hardly be said to pre- serve any of the doctrine of contributory negligence. From a legal point of view, perhaps, the alteration under (b) is the most remarkable. It introduces a new principle of liability into the law of torts, making the employer liable where there is no negli- gence on his part or on that of his servants, tion of the We must now turn our attention to some of the pro^!uons principal provisions of the Workmen's Compensation of the Act, 1897. Work- men's Sect. 1 provides that if, in any employment to Compensa- -y^l^ieh the Act applies, personal injury, disabling a 1897 (60 & workman for at least two weeks, is caused to him 61 Vict. c. 37). Considera- SUMMARY OF THE LAW. o by accident arising out of, and in the course of, Sect. i. the employment, the employer is to pay compen- biiity. ' sation. Sect. 7 gives the employments, which are as fol- Sect. 7. lows : — on or in or about a railway, factory, mine, pioyments. quarry, or engineering work, or on, in or about a building which exceeds thirty feet in height, and is either being constructed or repaired by means of a scaffolding, or being demolished, or on which machinery driven by steam, water, or other mechani- cal power is being used for the purpose of the construction, repair', or demolition thereof. The First Schedule to the Act gives the compen- First sation, which is not to exceed 300/. in case of death, the com-' or 1/. per week in case of disablement. pensation. Sect. 1 (2) (b) provides that where the injury was Sect. i. caused by the personal negligence or wilful act of ^P*'}^'^ ^ ), a bricklayer with his foreman (e), and a manager of a mine with a miner (d). The defence of common employment was a com- plete answer to the plaintiff's claim if the employer had taken reasonable care to employ competent work- men (e). As we have already said, the effect of the Em- ployers' Liability Act, 1880, was, in actions brought under its provisions, to take away from B. the defence of " common employment." The other defences we have mentioned were left untouched. Now let us consider the effect of the Workmen's Compensation Act, 1807, when the workman is in one of those employments to which it applies. (a) 1861, Searlc v. Lindsay, 31 L. J., C. P. 106. {b) 1863, Waller v. S. E. R., 2 H. & C. 102 ; 32 L. J., Ex. 205. [c) 1850, Wigmore v. Jay, 5 Ex. 354 ; 19 L. J., Ex. 300. [d) 1874, Howells v. Landorc Steel Co., L. R., 10 Q. B. 62; 44 L. J., Q. B. 25. {e) 1873, Balhny v. Crce, 11 Sc. Ses. Cas., 3rd Series, 626. SUMMARY OF THE LAW. ' Turning to the old defences — A con- sideration 1. The defence of " volenti non fit injuria " is of the defences gone. open to 2. The defence of " inevitable accident " (in- ^^^y^^^" eluding all cases where A. failed to prove negligence) is gone. 3. The defence of contributory negligence is gone. There remains only the defence that the injury was due to the serious and wilful misconduct of A. 4. The defence that A. was a trespasser or bare licensee is not likely to arise in cases to which the Workmen's Compensation Act applies for the same reason that it seldom arises under the Employers' Liability Act, 1880. This is not because the defence is taken away by the Act, but because the workman of an employer cannot well be a trespasser or bare licensee. 6. In cases where the injury is alleged to arise from the negligent act of B.'s servant — (a) The defence that the negligent act was not within the scope of the servant's employment is gone, unless it reap- pears under the form that the accident did not arise out of and in the course of the employment {a). (b) The defence that the servant was not the servant of B. at the time of the accident is partially destroyed. (a) See sect. 1, post, p. 13. <^ SUMMARY OF THE LAW. A con- This defence usually takes one of two sideration r. / ^ of the forms (^O- defences Either — open to the em- (i) ihat the servant was a sub-con- 1^ ^^^^' tractor, or the servant of a sub- contractor, employed by B. (ii) That at the time of the accident B. had lent the servant to some other person. The defence (i) only remains where the work con- tracted for is merely ancillary or incidental to, and is no part of, or process in, the trade or business carried on by B. (b). The defence (ii) will hardly occur in cases to which the Act apphes, as the accident must arise out of and in the coui'se of the employment, and this will be the sole test of liability. The following Table will show the position at a grlance : — [Table («) See post, pp. 91, 93. {b) See sect. 4, post, p. 21. SUMMARY OF THE LAW. Action brought by A., a Servant of B., against B. for Damages for Personal Injuries. Defences at Common Law. 1. Volenti non fit injuria. 2. Inevitable accident (including all cases where A. fails to prove negKgence). 3. Contributory negli- gence. 4. A., a trespasser, or bare licensee. 5 (a) Injury from negli- gence of servant of B. outside the scope of his employment. (b) Injury from negli- gence of person not the servant of B. 6. Common employment. Defences under the Employers'' Liability Act, 1880. 1. Volenti non fit injuria. 2. Inevitable accident (including all cases where A. fails to prove negligence). 3. Contributory negli- gence. 4. A., a trespasser, or bare licensee (unlikely to arise, because in- cluded in 7 of this column) . 5 (a) Same as at common law. (b) Do. 6 . That A. has contracted out. 7. That the action is not brought under the pro- visions of the Act. Defences under the Workmen'' s Compensation Act, 1897. 1. Injury due to serious and wilful misconduct of A. 2. A., a trespasser, or bare licensee (unlikely to arise, because in- cluded in of this column). 3 (a) The question of scope of employment, so far as it can arise, will fall under 5 of this column. (b) That the alleged negli- gent servant was a sub- contractor, or the ser- vant of a sub-contractor, of B., and that the work contracted for was merely ancillary to, and no part of or process in, the trade or business of B. 4. That A. has contracted out. 0. That the action is not brought under the pro- visions of the Act. Note. — Where the action fails at common law, or under the Employers' Liability Act, 1880, but the plaintiff would have been entitled under the Work- men's Compensation Act, 1897, he may elect to have the compensation assessed. (See sect. 1 (4).) b5 10 SUMMARY OF THE LAW. Defences under the Em- ployers' Liability Act, 1880. Defences under the Work- men's Compensa- tion Act. With regard to the defences that arise on the question as to whether the action is brought under the provisions of the Employers' Liability Act, 1880, we shall deal with these when we come to the con- sideration of the Act itself, and the numerous cases which have arisen thereunder. With regard to the like defences under the Work- men's Compensation Act, 1897, the following are the most obvious defences : — 1. That the " employment " is not within the Act. Sect, 1 and sect. 7 (1). 2. That the plaintiff was not a workman. Sect. 1 and sect. 7. 3. That the accident did not arise out of and in the course of the employment. Sect. 1. 4. That the workman was not disabled for two weeks. Sect. 1 (2). 5. That the proceedings are barred by the absence of, or defect in, the notice of injury. Sect. 2(1). 6. That the claim for compensation has not been made within six months from the occurrence of the accident. Sect. 2 (1). Damages recover- able. We shall conclude with a Table showing the damages recoverable at common law under the Employers' Liability Act, 1880, and under the Workmen's Compensation Act, 1897. [Table SUMMARY OF THE LAW. Compensation or Damages recoverable. 11 At Common Law. (a) In case of death : Action under Lord Campbell's Act for the benefit of wife, hus- band, parent, and child. Damages limited to pecuniary loss. (b) In case of injury : Unlimited. Under the Employers' Liability Act, 1880. As at common law, with the further limitation that the damages shall not exceed a sum equi- valent to the estimated earnings, during the three years preceding the injury, of a person in the same grade. Under the Workmen'' s Compensation Act, 1897. (a) In case of death : i. Where the work- man leaves dependants wholly dependent upon him, a sum equal to his earnings in the employ- ment during the past three j'ears, or 150^., whichever is greater, but not exceeding 300^. If the period of employ- ment has been less than three years, his earnings to be reckoned at 156 times his average weekly earnings. ii. Where the work- man leaves dependants partially dependent up- on him, a sum (not to exceed the amount under i.) to be settled by agreement or arbi- tration. iii. Where the work- man leaves no depen- dants, the exjienses of medical attendance and burial, not to exceed 10/. (b) In case of total or partial incapacity : During incapacity, after the second week thereof, a weekly sum not exceeding 50 per cent, of his average weekly earnings during the past year, or so long as he has been employed, such weekly payment not to exceed 11. ( 13 ) THE AVOEKMEN'S COMPENSATION ACT, 1897. (60 & 61 Vict. c. 37.) An Act to amend the Law with respect to Compensation to Woi'kmen for Accidental Injuries suffered in the course of their Employment. Be it enacted by tlie Queen'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 : — 1. — (1) If in any employment (^) to which this Liability Act applies personal iniury by accident {^) arising certain iri J J J \ / o employers out of and in the course of the employment (^) is to work- caused to a workman, his employer shall, subject as injuries, hereinafter mentioned, be liable to pay compensation in accordance with the First Schedule to this Act. (1) The employments are specified in sect. 7(1). (-) This wide term will include " inevitable accident " and "act of God." (^) These words, "arising out of and in the course of the employment," are most important, as they form almost the sole limitation imposed by the Act as to the nature of the " accidents " for which the employer is responsible. (2.) Provided that — Disable- (a) The employer shall not be liable under this J^^ceedtwo Act in respect of any injury which does not weeks in duration. 14 The Workmen's Compensation Act, 1897, 60 & 61 Vict. c. 37. s. 1 (2) (a). Injury caused by personal negligence or wilful act. disable the workman for a period of at least two weeks (') from earning full wages at the work at which he was employed : (') In explaining the introduction of these words, Mr. Cham- berlain said : — The reason why the limit of two weeks was introduced was this. The Bill applied a new principle to industry, and throw a new burden on employers and on the trades they represented independent altogether of any negligence or action attributed to the employers themselves. This new principle the Government would only be justified in applying by some great public human interest. Now that great public human interest arose in the case of what he might call serious accidents. The sufferers from those accidents were the wounded soldiers of industry whom they had in their minds, and about whom so much was said in discussing this subject — people who were seriously if not permanently injured, and prevented, at all events for a considerable period, from following their ordinary employment. There would be no ground for legislative interference if they could believe that every accident which occurred was an accident whose effects would not last longer than three weeks. Such accidents as these were accidents for which the workman might properly be ex- pected to make provision liimself. (b) When the injury was caused by the personal negligence or wilful act of the employer, or of some person for whose act or default the em- ployer is responsible, nothing in this Act shall affect any civil liability of the employer, but in that case the workman may, at his option, either claim compensation under this Act, or take the same proceedings as were open to him before the commencement of this Act; but the em- ployer shall not be liable to pay compensation for injury to a workman by accident arising out of and in the course of the employment both independently of and also under this Act, and shall not be liable to any proceeding 60 cV 61 Vict c. 37. 15 independently of tliis Act, except in case of 60 & 6i such personal negligence or wilful act as afore- g. i (2) (b)! said : In explaining this clause, Mr. Chamberlain said : — They always intended that questions affecting the per- sonal negligence of the employer should be dealt with by alternative methods. It was perfectly true that the essence of the Bill was, with regard to the vast proportion of the accidents which would come under it, that there should be no choice for either the workman or employer but to take their position under the Bill. But they always made an exception in the cases in which it was alleged that the accident was due to the personal negligence of the em- ployer. Those were a very small proportion of the acci- dents, but as to that proportion, they did intend that the rights of the workman should remain absolutely unim- paii-ed. He was not only to have this new option of taking his position, without discussion, under the Bill, but he would have, if he preferred it, any of the other rights which he would have now under the Employers' Liability Act, Lord Campbell's Act, or the common law. Under the law as it existed before the present Act, the employer was only liable for the wilful act of his servant when done in the coui-se of the servant's employment on the employer's behalf, and with the intention of serving his pur- poses. The employer was not liable for the wilful act of his servant when that act was done in order to effect some purpose of the servant's. See, on the one hand, 1862, Limpus T. London General Omnibus Co. (1 H. & 0. 526), in which the defendants were held liable for the act of their driver in pulling their omnibus across the road in fi'ont of the plain- tiff's omnibus, although the driver had printed instructions not to race with or obstruct other omnibuses ; and, on the other hand, 1821, Croft v. Alison (4 B. & Aid. 590), in which it was held, that where the servant wantonly, and not in order to execute his master's orders, strikes the pla,intiff's horses, and thereby produces the accident, his master is not liable. If the workman chooses the old remedies, this ques- tion will, of course, be imi^ortant, but if he chooses the new remedy, the sole question will bo, whether the accident arose out of, and in the course of, his employment. (c.) If it is proved that the injury to a workman Injury at- is attributable to the serious and wilful mis- to^ serious conduct of that workman, any compensation and wilful 16 60 & 61 Vict. c. 37, s- 1 (2) (c). miscon- duct of workman. The Workmen^ Compensation Act, 1897, claimed in respect of that injuiy shall be dis- allowed. The object of this sub-section is to prevent the -workman from recovering in cases where the accident is caused by his own gross negligence without introducing the doctrine of contributory negligence. When the Bill went to the House of Lords, the words were " solely attributable." The House of Lords struck out the word " solely," and the amendment was accepted by the House of Commons. The following passage from Mr. Chamberlain's speech on the consideration of the Lords' amendment is very instructive : — The word " solely " was not, it is true, introduced in the early discussions of this amendment. In the first instance there was no reference to the case of ' ' gross and wilful negligence " of the workmen, but it was admitted not merely hy the employers but also by representatives of the workmen that it would be a monstrous thing to compensate a workman whose wilful and gross fault had brought on himself and others serious injury. To do so was really to take away one of the causes which might lead to the pre- vention of accidents — almost to induce accidents instead of to jn-event them. In the attemjit to deal with this matter, which I admit is a very complicated one, we tried one form of words after another ; but we have never been able to please the hon. member. In the first instance, the pro- posal was that wherever an accident was due to the wilful breach of rules and regulations, or drunkenness, or gross miscondTict — in all these cases the workman was not to receive compensation. The word " solely " was not intro- duced then ; it was where the accident was attributable to those causes that the word "solely" was introduced. That was objected to, because it was pointed out that it might go too far, and rules might be made a breach of which might not constitute wilful and serious negligence. On the other hand, it was argued that where a rule was made in order to secure the safety of the workmen and the accident was due to a breach of such rule, then it ought to hold as gross and wilful negligence. We agreed to that argument, and we took out those specific words, and we left the provision in the form in which it has been amended by the other House. In the other House it was pointed out that that would clearly lead to injustice, and I do not think it can be denied even by the hon. member. If you say you must prove that the accident is " solely " attribu- table, j^robably you will never be able to prove it, although there might have been much gross and wilful negligence. I am siu'e that hon. members would not pretend that a 60 ^ 61 Vict. c. 37. 17 ■workman in such, circumstances is entitled to compensation, 60 & 61 yet you could not say that the accident was "solely" Vict. c. 37, attributable to any one cause, because an accident almost s. 1 ('i) (c). invariably is connected with more than one cause, and " solely " would bar all these cases. I will give one case. Sui:)pose an accident were duo, using the words here, to " serious and wilful misconduct " of two workmen engaged in the same operation. Then, as it would not be " solely attributable" to the action of either, for both of these men were guilty, it is doubtful whether they would come in for compensation. There is evidently a blot in our work, and although it is true we gave serious consideration to the matter before proposing the provisions, yet when it was pointed out that a construction of this kind would be unfair and unjust, we thought it would be right to accept or to consider an amendment to remove that injustice. As the section will stand with the amendment of the other House, I do not think it makes a great difference. It takes a very great lawyer to see the exact difference between " attributable " and " solely attributable." The only fear is whether by the word " solely " we should let in the doc- trine of contributory negligence, which we expressed our desire to exclude. I do not think it would be the case. (3.) If any question arises in any proceedings Arbitra- under this Act as to the liability to pay compensation *^°^" under this Act (including any question as to whether the employment (^) is one to which this Act applies), or as to the amount (^) or dm-ation (^) of compensa- tion 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. (') As defined by sect. 7(1). (-) See the First Schedule as to the amount and duration of compensation. (4.) If, within the time {}) hereinafter in this Act Mistake limited for taking proceedings, an action is brought ^^ *° P^°' to recover damages independently of this Act for injuiy caused by any accident, and it is determined in such action that the injury is one for which the 18 The Worhnen^s Comjjensation Act, 1897, 60 & 61 Vict. c. 37. s. 1 (4). Time f or taking proceed- ings and notice of injury. employer is not liable in such action, but that lie- would have been liable to pay compensation under the provisions of this Act, the action shall be dis- missed ; but the Court in which the action is tried shall, if the plaintiff shall so choose, proceed to assess such compensation, and shall be at liberty to deduct from such compensation all the costs which, in its judgment, have been caused by the plaintiil 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 compensation it has awarded and the directions it has given as to the deduction for costs, and such certificate shall have the force and effect of an award under this Act. (^) The claim for compensation must be made within six months of the accident causing the injury, or, in case of death, within six months from the time of death. (See sect. 2 (1).) (5) Nothing in this Act shall affect any proceed- ing for a fine under the enactments relating to mines or factories, or the application of any such fine, but if any such fine, or any part thereof, has been applied for the benefit of the person injured, the amount so applied shall be taken into account in estimating the compensation under this Act. 2. {(i) — (1) Proceedings for the recovery under this Act of compensation for an injury shall not be maintainable unless notice of the accident has been given as soon as practicable after the happening thereof and before the workman has voluntarily left the employment in which he was injured (^), and {a) See the corresponding sections in the Employers' Liability Act, poxt, pp. 61, 04. 60 Sf 61 Vict c. 37. 19 unless the claim for compensation with respect to 60 & 61 ... Vict. c. 37 sucli accident has been made within six months from g. 2 (i). ' the occurrence of the accident causing the injury, or, in the case of death, within six months from the time of death. Provided always, that the want of or any defect or inaccuracy in such notice sliall not be a bar to the maintenance of such proceedings, if it is found in the proceedings for settling the claim that the employer is not prejudiced in his defence by the want, defect, or inaccuracy, or that such want, defect, or inaccuracy was occasioned by mistake or other reasonable cause. This remarkable section is, as might be imagined, the effect of a comi^romise between conflicting interests in Parlia- ment. It may be doubted whether the notice of accident ■will be any use at all, as to bar the proceedings the want, defect, or inaccuracy therein must not only prejudice the employer in his defence, but must not bo due to mistake or other reasonable cause. (')— before the workman has voluntarily left the em- ployment in which he was injured. The object of these words is to prevent fictitious claims after the workman has left the employment, when it would be impossible for the employer to know whether the accident really happened during the time that the workman was in the employment. (2) Notice in respect of an injury under this Act Notice of shall give the name and address of the person injured, ^^•'"''y' and shall state in ordinary language the cause of the injury and the date at which it was sustained, and shall be served on the employer, or, if there is more than one employer, upon one of such employers. (3) The notice may be served by delivering the same to or at the residence or place of business of the person on whom it is to be served. (4) The notice may also be served by post by a registered letter addressed to the person on whom it -'J The Worhnen's Comjjensation Act, 1897, 60 & 61 is to be served at liis last known place of residence or s. 2 (4). ' place of business, and if served by post shall be deemed to bave been served at the time when the letter containing the same would have been delivered in the ordinary course of post; and in proving the service of such notice it shall be sufficient to prove that the notice was properly addressed and registered. (5) 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. Contract- 3. — (1) If the registrar of friendly societies, after mg ou . taking steps to ascertain the views of the employer and workmen, certifies that any scheme of compensa- tion, benefit, or insurance for the workmen of an employer in any employment, whether or not such scheme includes other employers and their workmen, is ou the whole not less favourable to the general body of workmen and their dependants than the provisions of this Act, the employer may, until the certificate is revoked, contract with any of those workmen that the provisions of the scheme shall be substituted for the provisions of this Act ; and there- upon 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. {a) (2) The registrar may give a certificate to expii^e at the end of a limited period not less than five years. (3) No scheme shall be so certified which contains (a) See Appendix D, p. 113. 60 ^ 61 Vict, c, 37. 21 an oblig-ation upon the workmen to join the scheme 60 & 6i as a condition of their hiring. s. 3 (3). ' (4) If complaint is made to the registrar of friendly societies by or on behalf of the workmen of any employer that the provisions of any scheme are no longer on the whole so favourable to the general body of workmen of such employer and their depen- dants as the provisions of this Act, or that the pro- visions of such scheme are being violated, or that the scheme is not being fairly administered, or that satisfactory reasons exist for revoking the certificate, the registrar shall examine into the complaint, and, if satisfied that good cause exists for such complaint, shall, unless the cause of complaint is removed, revoke tlie certificate. (5) When a certificate is revoked or expires any moneys or securities held for the purpose of the scheme shall be distributed as may be arranged between the employer and workmen, or as may be determined by the registrar of friendly societies in the event of a difference of opinion. (6) Whenever a scheme has been certified as afore- said, it shall be the duty of the employer to answer all such inquiiies and to furnish all such accounts in regard to the scheme as may be made or required by the registrar of friendly societies. (7) The chief registrar of friendly societies shall include in his annual report the particulars of the proceedings of the registrar under this Act. 4. Where in an employment to which this Act Sub- con- applies, the undertakers as hereinafter defined contract ^^° ^"°' with any person for the execution by or under such contractor of any work, and the undertakers would, 22 The Worhnenh Compensation Act, 1897, 60 & 61 if sucli work were executed by workmen immediately ^"^8 4 employed by them, be liable to pay compensation 'z~, under this Act to those workmen in respect of any Sub-con- . . . r. 1 • 1 p 1 • tracting. accident arising out of and m the course oi their employment, the undertakers shall be liable to pay to any workman employed in the execution of the work any compensation which is payable to the workman (whether under this Act or in respect of personal negligence or wilful act independently of this Act) by such contractor, or would be so payable if such contractor were an employer to whom this Act applies. Provided that the undertakers shall be entitled to be indemnified by any other person who would have been liable independently of this section. This section shall not apply to any contract with any person for the execution by or under such con- tractor of any work which is merely ancillary or incidental to, and is no part of, or process in, the trade or business carried on by such undertakers respectively. This section was sent up by tlie Commons in a form tliat both parties in the Lords agreed was unintelligible. It was accordingly redrafted and inti'oduced by Lord Selborne in its present form, but without the last claiise. On its introduction Lord Selborne explained its obj ect as follows : — As a familiar and simple instance of sub -contracting he might mention that in a coal mine it was a common practice for a butty man to work with a gang of four or five men. The butty man was j^aid for the coal the gang produced by the coal owner, and he distributed among the gang the proceeds. If this clause were not inserted, in case of an accident the men hewing coal under the butty man would have no remedy excejat against the butty man. But as the amended clause stood, the remedy would be against the coal owner, the principle of the Bill being that all men engaged in such occupations should receive compensation, and not be deprived of it by a mere trade arrangement such as he had described. 60 ^ 61 Vict c. 37. 23 Lord Herschell pointed out that the clause -would have 60 & 61 a wider application than the noble earl imagined. The Vict. c. 37, Bill imposed liability without regard to any conduct on the s. 4. part of the person rendered liable in the public interest. He entertained a strong opinion that if this were done at Sub-con- all the State should bear the burden instead of its being tracting. cast on employers, to the certain dislocation of certain trades. He wished to put a case to which he understood the clause would apply. A mine owner employed a builder to build pit cottages at the mine or to do building works about the mine not involving houses 30ft. high ; or a railway company employed a builder to do j^ainting, plumbing, and other work at their stations. In such cases the effect of the clause would be to make the mine owner in the one instance, and the railway company in the other, liable for any injuries caused bj' accident to the builder's workmen. It was quite true that there was an indemnity clause against the employer of such workmen in certain cases, but it was only given where the employer himself, who might be a builder employing hundreds of men, would be liable for compensation. It might be convenient to put responsibility on the first man they laid hands on, but the effect of so doing would be very wide and far- reaching, and if the Bill were extended it would lead to startling consequences. He was with the noble earl in not depriving the workmen of any compensation to which they were entitled, but the clause went far beyond that. It seemed an absurditj^ to render liable a railway company or the owner of a colliery, and not to render liable the em- ployer of the workmen, against whom no indemnity could be obtained. The Lord Chancellor said the objection apparently made was this. The builder in the case his noblo friend referred to had a large number of persons in his emjiloy- ment. If that builder was himself resi^onsible to his own workmen by reason of any negligence of his, the remedy over protected the undertakers by reason of the remedy over against the builder. It might happen that the builder himself would not be liable, and in that event he admitted that the undertaker on whose behalf the work was done by a sub-contractor was nevertheless bound to compensate the workmen. The answer appeared to be intelligible enough. A colliery owner or factory owner was perfectly competent to contract with the person who did work for him that such person should be responsible for any com- pensation for which the colliery owner might be liable under the Bill in the case of any accident occurring in the course of the work. That would be a perfectly intelligible 24 The Workmen'' s Comj^ensation Act, 1897, 60 & 61 and good contract, and that was the only remedy in the Vict. 0. 37, case supposed. But to say that a workman who was s- 4. working for a railway or factory owner was not to be Q , ~ compensated, although an accident might happen to tra t' 0-" him, was to cut out the princijile of the Bill, which was "■ that in any event the workman was to receive compen- sation. The objection raised by Lord Herschell was clearly a very weighty one. If the mine owner employed his own work- men to build cottages not thirty feet high, that being work about the mine, the employer would be liable. Thus, under this section without the last clause, the mine owner would be liable to the woi'kmen employed by the builder, although the builder himself would not be liable, and so the mine owner would not be entitled to be indemnified by the builder. In introducing the last clause, the Earl of Ellesmere said: — The fourth claiise was by mutual consent declared to be unintelligible in the form in which it came from the other House, and the present clause was substituted. To this new clause he had been pressed to move the amendment by persons connected with the cotton manufacturing trade, and it was intended to give effect to the intention of the original clause. Sub-contractors were generally under- stood to be persons who did ])a\t of the work for the busi- ness of the employer, and not work, to use the words of the amendment, not auxiliary or incidental thereto. The amendment he proj^osed would retain the liability of the employer for accidents in carrying out work by a con- tractor as part of the employer's business, but not in respect to accidents in work not connected with the trade. As he understood the clause, if the owner of a mill con- tracted with a painter to paint his mill or factory, and a painter's workman met with an accident by falling off a ladder, the millowner or factory owner would be liable to paj' compensation, but if within the next few weeks the same owner employed the same contractor to paint his jjrivate residence, then the owner would not be liable to pay compensation for an accident of that nature. It was rather a curious position of things, and could not, he thought, be intended. It seemed to him absurdly unfair to make a man responsible in respect to a workman over whom he had no authority and of whose competence he had no means of judging. The clause further provided that the employer should have his right of indemnity against the contractor, and where the contractor was a man of substance there would be no difficiilty about that, but in its operation the clause would lead to crush out smaller and struggling contractors. 60 ^- 61 Vict. c. 37. 25 When tlie Lords' new section was discussed in the Commons — ■ The Attorney-General said that no one would deny the first part of the new clause to be an improvement. When the question was first being discussed in the House, he said that on such a difficult point he should be glad to have the assistance of the drafting of the right hon. member for Fife in the Bill of 1893. Though he pointed out objections to the right hon. member's clause, he thought it was at the time the best that had been devised. As to the clause put in by the Lords, the first sub-section was framed by the Lord Chancellor and Lord Ilerschell, and undoubtedly the earlier jjart of this clause expressed more clearly the position of the sub-contractor and the head employer. The jH-oviso was to a large extent inspired by Lord Ilerschell. It was clear that the clause ought not to apply whei-e the work done by the sub -contractor was not part of the "undertaker's" business. For instance, the painting of railway station rooms was purely ancillary to the business of a railway company. He would not say that a question might not arise upon the words " ancillary and incidental to " ; but the clause was not in the interests of the employers. Read in the light of the above speeches the meaning of the section is fairly clear, but probably questions will arise as to the meaning of the words ' ' merely ancillary or incidental to." 60 & 61 Vict. c. 37, s. 4. Sub-con- tracting-. 5. — (1) Where any employer becomes liable under Compen- 1 1 • A i , J.' • L £ sation to tnis Act to pay compensation m respect oi any -^^orkmen accident, and is entitled to any sum from insurers in ^^ case of bank- respect of the amount due to a workman under such ruptcy of liability, then in the event of the employer becoming employer. bankrupt, or making a composition or arrangement with his creditors, or if the employer is a company of the company having commenced to be wound up, such workman shall have a first charge upon the sum aforesaid for the amount so due, and the judge of the county court may direct the insurers to j)ay such sum into the Post Office Savings Bank in the name of the registrar of such Court, and order the same to be invested or applied in accordance with the j)ro- R. C 26 The Workmen^ s Compensation Act, 1897, 60 & 61 Vict. c. 37, s. 5 (1). Recovery of dama- ges from stranger. visions of the First Schedule hereto with reference to the investment in the Post Office Savings Bank of any sum allotted as compensation, and those pro- visions shall apply accordingly, (2) In the application of this section to Scotland, the words " have a first charge upon " shall mean " be preferentially entitled to." 6. Where the injury for which compensation is payable under this Act was caused under circum- stances creating a legal liability in some person other than the employer to pay damages in respect thereof, the workman may, at his option, proceed, either at law against that person to recover damages, or against his employer for compensation under this Act, but not against both, and if compensation be paid under this Act, the employer shall be entitled to be in- demnified by the said other person. This is a difficult section, and there was considerable differ- ence of opinion in the House of Commons as to its meaning. In explaining it the Attorney-General said — He desired to make perfectly plain that the clause did not increase the liability of emjiloyers at all. H any- thing, it was in favour of employers. Take the ease of an engine which had been so badly put together that while working in a mill the fly-wheel went to pieces and injured twenty persons. That being an accident which happened in the course of emjjloj'ment there would be compensation under the Bill and the compen- sation would bo payable by the employer of the work- men — that was the millownor ; but as the accident was really occasioned by the engine maker, the object of the clause was to give to the employer a remedy against him. There was another case — the case of an employer who sent his carter to the railway station in order to luaload goods from trucks, and a crane which was badly managed led to an accident in which the leg of a railway porter and the leg of the man who was sent with the cart were broken. There would be no remedy by the carter against his em- ployer for that accident, but he would have a remedy 60 4* 61 Vict. c. 37. 27 tion of Act and defini- tions. against the railway company for negligence, and, of course, 60 & 61 the railway porter would also have a remedy against the Vict. c. 37, railway company as he was in their employment. s- ^• At first sight the object of the section appears to be to give Recovery a remedy over to the employer against a stranger in certain of dama- cases, and if there is any further object it is not very appa- ges from rent. stranger. The injury must, of course, arise " out of and in the course of the employment." (See sect. 1 (1.)) Where the stranger could plead "contributory negligence" against the workman, he would not be under legal liability to pay damages, and therefore the employer would not be liable to be indemnified. This was the intention of the Government, and they declined to accept an amendment to the effect that the stranger should not be allowed to avail himself of any defence which would not be open to the employer. 7. — (1) This Act shall apply only to employment Applica- by the undertakers as hereinafter defined, on or in or about a railway, factory, mine, quarry, or en- gineering work, and to employment by the under- takers as hereinafter defined on in or about any building which exceeds thirty feet in height (^), and is either being constructed or repaired by means of a scaffolding, or being demolished, or on which machinery driven by steam, water, or other mechani- cal power, is being used for the purpose of the con- struction, repair, or demolition thereof. (') In the House of Commons Sir M. W. Ridley said — The Government assented to the addition of buildings with this limitation of 30 ft. , which was well known under the Factory Act of 189J. They did not say that it was altogether a logical definition, but what they said was that in applying this Act to various trades they were taking the already established definition. (2) In this Act — EaHways. " Eailway" means the railway of any railway 36 & 37 company to which the Regulation of Railways ^^^^' °" ^^' Act, 1873, applies, and includes a Light Railway 59 & 60 2 Vict. c. 48. 28 The Workmen^ Compenmiion Aci, 1897, 60 & 61 Vict. c. 37, s. 7 (2). 36 & 37 Vict. c. 48, s. 3. made under the Liglit Railways Act, 1896 ; and " railway "(') and "railway company" have the same meaning as in the said Acts of 1873 and 1896, The Eegulation of Eailways Act, 1873 — Sect. 3. The term "railway company" includes any person being the owner or lessee of or working any rail- way in the United Kingdom constructed or carried on under the powers of any Act of Parliament. (') This includes tramways connected with mines and light railways, but not ordinary street tramways. In the House of Commons Mr. Holland argued that ordinary street tram- ways were included. He said that — A railway was to have the same meaning as in the Act of 1873, but when he looked at that Act he found no defi- nition of railway at all. From the point of view of law tramways were under the Railway Eegulation Acts and were subject also to the control of the Railway Commis- sioners, although that control had not been exercised. His contention, therefore, was that it was jwobable that if the Bill did not specifically exclude tramways they were, as a matter of fact, included, and he submitted that tramways were eminently undertakings which could suitably be included in the provisions of the Bill. This argument, however, appears to be rather far fetched. It seems doubtful whether canals the property of railway companies are included. Factory. .58 & 59 Vict. c. 37. 41 & 42 Vict. 0. IG, s. 93. Factories and work- " Factory " has the same meaning as in the Factory and Workshop Acts, 1878 to 1891 Q), and also includes any dock, wharf, quay, warehouse, machinery, or plant i^), to which any provision of the Factory Acts is applied by the Factory and Workshop Act, 1895, and every laundry worked by steam, water, or other mechanical power : (1) The Factory and "Workshop Act, 1878— Sect. 93. The expression " textile factory " in this Act means any premises wherein or within the close or curti- lage of which steam, water, or other mechanical power is used to move or work any machinery employed in pre- GO cV 61 Vict. c. 37. 29 paring, manufacturing or finisHng, or in any process in- 60 & 61 cidout to the manufacture of, cotton, wool, hair, silk, flax, Vict. c. 37, hemp, jute, tow, cliina-grass, cocoa-nut fibre, or other like s. 7 (2). material, either separately, or mixed together, or mixed T 7~~ with any other material, or any fabric made thereof: Pro- ^ v^t a vided that printworks, bleaching and dyeing works, lace „ i- ^ warehouses, pa^^er mills, flax scutch mills, rope works, and hat works shall not be deemed to be textile factories. The expression ' ' non-textile factory " in this Act means — (1) any works, warehouses, furnaces, mills, foundi'ies, or places named in Part One of the Fourth Schedule to this Act (see Api;)eudix, p. 105) : (2) also any premises or places named in Part Two of the said Schedule (see Appendix, p. 107) wherein or within the close or cui-tilage or precincts of which steam, water, or other mechanical power is used in aid^of the manufac- turing i^rocess carried on there ; (3) also any premises wherein or within the close or CTU'tilage or precincts of which any manual laboiu" is exercised by way of trade or for piu'jioses of gain in or incidental to the following purposes or any of them ; that is to say, (a) in or incidental to the making of any article or of part of any article ; or (b) in or incidental to the altering, rej^airing, ornamenting, or finishing of any article ; or (c) in or incidental to the adapting for sale of any article, and wherein, or -within the close or ciu'tilage or precincts of which, steam, water, or other mechanical power is used in aid of the manufacturing process carried on there. The expression "factory" in this Act means textile factory and non-textile factory, or either of such descrip- tions of factories. A part of a factoiy or workshop may, for the purposes of this Act, be taken to be a separate factory or workshop ; and a place solely used as a dwelling shall not be deemed to form part of the factory or workshop for the purposes of this Act. Where a place situate within the close, curtilage, or pre- cincts forming a factory or workshop is solely used for some purj^ose other than the manufacturing process or handicraft carried on in the factory or workshop, such place shall not be deemed to form part of that factory or workshop for the purposes of this Act, but shall, if other- wise it would be a factory or workshop, be deemed to be a separate factory or workshoj:), and be regulated accordingly. Any premises or place shall not be excluded from the definition of a factory or workshop by reason only that such premises or place are or is in the open air. 30 The Worhnen^s Compensation Act, 1897, 60 & 61^ This Act shall not ajij^ly to such workshops other than ^^%%\'' bakehouses, as are conducted on the system of not em- ^- ' \ )■ ploying any child, young person, or woman therein, but, save as aforesaid, applies to all factories and workshops as before defined, inclusive of factories and workshops be- longing to the Crown ; provided that in case of any public emergency a Secretary of State may exempt a factory or workshop belonging to the Crown from this Act to the extent and during the period named by him. (-) On these words the Attorney- General said in the House of Commons — What the Government proposed was that where the machinery of the dock was being used for the purpose of loading or unloading a ship at the quay it should come under the Bill ; but if that machinery was also used for unloading into a lighter, it would also, he took it, come under the Bill. Mine. " Mine " means a mine to wMch the Coal Mines Vict r 58 Regulation Act, 1887, or the MetaUiferous 35 & 36 Mines Regulation Act, 1872, applies : Vict. c. 77. The Metalliferous Mines Eegulation Act, 1872 — 35 Ac 6b Sect. 3. This Act shall apjily to every mine of whatever ^o ■ ^ ' description, other than a mine to which the Coal Mines Eegulation Act, 1887 (o), applies. Sect. 41. The term "mine" includes every shaft in the course of being sunk, and eveiy level and inclined plane in the coui'se of being driven for commencing or opening any mine, or for searching for or proving minerals, and all the shafts, levels, planes, works, machinery, tramways, and sidings, both below ground and above groimd, in and ad- jacent to a mine, and any such shaft, level and inclined plane, and belonging to the mine. 60 & 51 The Coal Mines Ee'gulation Act, 1887— Vict. c. 58, Sect. 3. This Act shall apply to mines of coal, mines of 8- 3- stratified ironstone, mines of shale, and mines of fire-clay. 57 & 58 " Quarry " means a quarry under the Quarries Vict. c. 42. ^^^^ ;^g94_ 57 & 58 T^6 Quarries Act, 1894 — Vict. c. 42 Sect. 1. This Act shall ajDply to every place (not being- 8. 1. a mine) in which persons work in getting slate, stone, {a) Originally 1872, but now 1887, by virtue of the Coal Mines- Regulation Act, 1887, s. 83. 60 ^ 61 Vict c. 37. 31 coprolites, or other minerals, and any part of which, is 60 & 61 more than twenty feet deep, and every such place is in Vict. c. 37, this Act referred to as a quany under this Act. ^- ''' (^)- " Engineering work " means any work of construe- Engineer- tion or alteration or repair of a railroad, harLom-, ^'^^ '^ork. dock, canal or sewer, and includes any other work for the construction, alteration, or repair of which machinery driven by steam, water, or other mechanical power is used. "Undertakers" in the case of a railway means Under- the railway company {^) ; in the case of a factory, quarry, or laundry, means the occupier thereof within the meaning of the Factory and Workshop Acts, 1878 to 1895 ; in the case of a mine means the owner thereof within the meaning of the Coal Mines Regulation Act, 1887, or the Metalliferous Mines Regulation Act, 1872, as the case may be, and in the case of an engineering work means the person under- taking the construction, alteration or repair ; and in the case of a building means the persons undertaking the construction, repair, or demo- lition. (1) See ante, p. 28. The Metalliferous Mines Eegulation Act, 1872— 35 & 36 Sect. 41. The term " owner," («) when used in relation to Vict. c. 77, any mine, means any person or body corporate who is the s- 41- immediate proprietoi-, or lessee, or occupier of any mine, or of any part thereof, and does not include a person or body corporate who merely receives a royalty, rent, or fine from a mine, or is merely the proprietor of a mine subject to any lease, grant, or licence for the working thereof, or is merely the owner of the soil and not interested in the minerals of the mines [h). {a) See, 1876, Stott v. Dickinson, 34 L. T. 291. [b) See, 1877, Evans v. Lady Mosti/n, 2 C. P. D. 547 ; 47 L. J., M.C. 26. 32 The Worhneu''s Compensation Act, 1897, 60 & 61 Vict. c. 37, ^- 7 (2). 50 & 51 Vict. c. 58, s. 75. Employer. Work- mau. Depen- dants. The Coal Mines Eegulation Act, 1887 — Sect. 75. " Owner,"(a) when used in relation to any mine, means any person or body corporate who is the immediate proj^rietor or lessee, or occupier of any mine, or of any part thereof, and does not include a person or body corporate who merely receives a royalty, rent, or fine from a mine, or is merely the proprietor of a mine subject to any lease, grant, or licence for the working thereof, or is merely the owner of the soil and not interested in the minerals of the mine {h) ; but anj contractor for the working of any mine, or any part thereof, shall be subject to this Act in like manner as if he were an owner, but so as not to exempt the owner from any liability. " Employer " includes any body of persons corpo- rate or imincorporate, and the legal personal representative of a deceased employer. " Workman " includes every person who is en- gaged in an employment to which this Act applies, whether by way of manual labour or otherwise, and whether his agreement is one of service or apprenticeship, or otherwise, and is expressed or implied, is oral or in writing. Any reference to a workman who has been injured shall, where the workman is dead, include a reference to his legal personal repre- sentative, or to his dependants, or other person to whom compensation is payable. " Dependants " means — (a) in England or Ireland, such members of the workman's family specified in the Fatal Accidents Act, 1846 (c), as were wlioUy or in part dependent upon the earnings of the workman at the time of his death ; and [a) See, 1876, Stott v. Dickinson, 34 L. T. 291. \b) See, 1877, Evans v. Lady Mosfyn, 2 C. P. D. 547 ; 47 L. J., M. C. 25. (c) ^Qe post, p. 97. 60 cy 61 Vict, c, ;J7. 33 (b) in Scotland such of the persons entitled ^o & 6i according to the law of Scotland to sue the s. 7 (2) (b)! employer for damages or solatium in respect of the death of the workman, as were wholly or in part dependent upon the earnings of the workman at the time of his death. (3) A workman emploj^ed in a factory which SHp- is a shipbuilding yard shall not be excluded from y^^_ this Act by reason only that the accident arose outside the yard in the course of his work upon a vessel in any dock, river, or tidal water near the yard(i). (^) As to these -words in tlie House of Commons — The Attoeney-Geiteral said it had been pointed out by the hon. member for Tyneside that the case to meet was that of riveting being begun on the ways and being continued in the adjacent water. If the words "near the yard " were omitted the case of a vessel being taken into a different port would be inchided, and this contemplated a different state of things. They ought not to include the case of ships generally. The Government felt that they had carried out the letter as well as the spirit of what they promised to do, namely, the continuation and completion of the same work on vessels before they were able to go out on their voj'age. 8. — (1) This Act shall not apply to persons in the Persona in naval or military service of the Crown, but otherwise niilitary shall apply to any employment by or under the service. Crown to which this Act would apply if the employer of Crown. were a private person. (2) The Treasury may, by warrant laid before Parliament, modify for the pm-poses of this Act their warrant made under section one of the Super- annuation Act, 1887, and notwithstanding anything in that Act, or any such warrant, may frame a c 5 34 The Workmen^ s Compensation Act, 1897, 60 & 61 sclieme with a view to its being: certified by the- Vict c 37 Ox/ s. 8 (2). ' Registrar of Friendly Societies under this Act. The Superannuation Act, 1887 — Sect. 1. — (1) Where a person employed in the civil ser- vice of the State is injured — (a) in the actual discharge of his duty ; and (b) without his own default ; and (c) by some injury specifically attributable to the natiu-e of his duty, the Treasury may grant to him, or, if he dies from the injury, to his widow, his mother, if wholly dependent upon him at the time of his death, and to his childi-en, or to any of them, such gratuity or annual allowance as the Treasury may consider reasonable, and as may be permitted by the terms of a warrant under this section. (2) The Treasury shall forthwith after the passing of this Act frame a warrant regulating the grant of gratuities and annual allowances under this section, and the warrant so framed shall be laid before Parliament. (3) Provided that a gratuity under this section shall not exceed one year's salary of the person injured, and an allowance under this section shall not, together with any superannuation allowance to which he is otherwise entitled, exceed the salary of the person injured, or three hundred pounds a year, whichever is less. 9. Any contract existing at the commencement of this Act, whereby a workman relinquishes any right to compensation from the employer for personal injury arising out of and in the course of his employ- ment, 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 commencement of this Act. 10. — (1) This Act shall come into operation on the first day of July Q) one thousand eight hundred and ninety-eight. (') In order to give the employers time to consider their positi:)n. 60 ^ 61 Vict c. 37. 35 (2) This Act may be cited as the Workmen's ^ 60 & 6i ^ ' . -^ Vict. c. 37, Compensation Act, 1897. s. lo (2). SCHEDULES. FIEST SCHEDULE. Scale and Conditions of Compensation. Scale. (1) The amount of compensation under this Act shall be — {a) where death (') results from the injurj^^ — (i) if the workman leaves any dependants (^) wholly dependent upon his earnings at the time of his death, a sum equal to his earnings in the employment of the same employer during the three years next preceding the injury, or the 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 payments made under this Act shall be deducted from such sum, and if the period of the workman's employment by the said employer has been less than the said three years, then the amount of his earnings during the said three years shall be deemed to be 156 times his average weekly earnings during the period of his actual employment under the said employer ; (ii) if the workman does not leave any such dependants (^), but leaves any dependants (-) in part dependent upon his earnings at the time of his death, such sum, not exceeding in any case the amount payable under the fore- 36 The Worhneii's Compensation Act, 1897, 60 & 61 going provisions, as may be agreed upon, or, Sched I ^^ default of agreement, may be determined, on arbitration under this Act, to be reasonable and proportionate to the injury to the said dependants ('^) ; and (iii) if he leaves no dependants {^), the reason- able expenses of his medical attendance and burial, not exceeding ten pounds ; (^) The Act tlius provides a remedy whicli is independent of Lord Campbeirs Act. (-) As to the meaning of "dependants," see sect. 7 (2), ante, p. 32. (b) where total or partial incapacity for work results from the injury, a weekly payment during the incapacity after the second week (^) not exceeding fifty per cent, of his average weekly earnings during the previoiis 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 em- ployer, such weekly payment not to exceed one pound. Q) After the second week. The object of these words excluding compensation for the first two weeks is to prevent malingering. (2) In jBxing the amount of the weekly payment, regard shall be had to the difference between the amount of the average weekly earniEgs of the work- man before the accident and the average amount which he is able to earn after the accident, and to any payment not being wages (') which he may receive from the employer in respect of his injury during the period of his incapacity. (1) And to any payment not being wages, &c. These words were not in the Bill as originally di'afted. In the House of Commons, — Sir J. JoicEY moved, in Schedule 1 , to add words pro- viding that the arbitrator should have regard to "any payment which he may receive from, the employer in 60 ^ 61 Vict c. 37. 37 respect of his injury, and to the value of any house or fuel GO & 61 with which he may be provided by the employer during Vict. c. 37, the incapacity." Jie said that in Northumberland and Sched. I. Durham it had been the habit to give the workman in- ' capacitated by accident house rent, coal, rates, and taxes, together with " smart money" during the time of incapa- city. These contributions ought to bo taken into account by the arbitrator in fixing compensation under the Bill. The Government refused to accept this amendment, but in the House of Lords they themselves introduced the words " and to any payment not being wages," &c. In explaining them Lord Belper said that — The object of the proposal was that in fixing the amount of the weekly payment regard should be had not only to the difference between the amount of the average weekly earnings of the workman before the accident and the average amount which he was able to earn after the accident, but also as to whether any payment in wages had been received for the injury already. In other words, it was intended that what was called smart money should be deducted from the compensation which was paid. And in moving to agree with the Lords' amendment, Mr. Chamberlain said that — This matter was discussed on the report stage of the Bill in regard not merely to the money payments, but also to the benefits which the workman was alleged to receive during his incapacity. They thought that the considera- tion of benefits was an indeterminate thing which they could not put in the Bill as justifying any reduction, but, on the other hand, it was necessary that, if the workman were receiving as a voluntary contribution from his em- ployer, any portion of the compensation allotted, this should be taken into account. (3) Where a workman has given notice of an accident, he shall, if so required by the employer, submit himself for examination by a duly qualified medical practitioner provided and paid by the em- ployer, and if he refuses to submit himself to such examination, or in any way obstructs the same, his right to compensation, and any proceeding under this Act in relation to compensation, shall be sus- pended until such examination takes place. (4) The payment shall, in case of death, be made to the legal personal representative of the workman, 433394 '38 TJie Woi'hncii's Compensation Ad^ 1897, 60 & 61^ or, if lie has no legal personal representative, to or Sched I ' ^^^ ^^® benefit of his dependants (i), or, if he leaves no dependants (^), to the person to whom the expenses are due ; and if made to the legal personal represen- tative shall he paid by him to or for the benefit of the dependants {}) or other person entitled thereto under this Act. (^) As to tlie meaning of "dependants," see sect. 7 (2), ante, p. 32. (5) Any question as to who is a dependant (M, or as to the amount payable to each dependant (^), shaE, in default of agreement, be settled by arbitration under this Act. (1) As to tlie meaning of " dependants," see sect. 7 (2), ante, p. 32. (6) The sum allotted as compensation to a depen- dant (^) may be invested or otherwise applied for the benefit of the person entitled thereto, as agreed, or as ordered by the committee or other arbitrator. (1) As to tlie meaning of " dependants," see sect. 7 (2), ante, p. 32. (7) Any sum which is agreed or is ordered by the committee or arbitrator to be invested may be invested in whole or in part in the Post Office Savings Bank by the registrar of the county court in his name as registrar. (8) Any sum to be so invested may be invested in the purchase of an annuity from the National Debt Commissioners through the Post Office Savings Bank, or be accepted by the Postmaster- Greneral as a deposit in the name of the registrar as such, and the j)ro- visions of any statute or regulations respecting the limits of deposits in savings bank, and the declaration to be made by a depositor, shall not apply to such sums. (9) No part of any money invested in the name of the registrar of any county court in the Post Office Savings Bank under this Act shall be paid out, except upon authority addressed to the Postmaster- General 60 6f^ 61 Vict. c. 37. 39 by the Treasury or by the judge of the county 60 & 6i court. ^^^^;5- 2/' (10) Any person deriving any benefit from any '- — moneys invested in a post office savings bank under the provisions of this Act may, nevertheless, open an account in a post office savings bank or in any other savings bank in his own name without being liable to any penalties imposed by any statute, or regula- tions in respect of the opening of accounts in two savings banks, or of two accounts in the same savings bank. (11) Any workman receiving weekly payments under this Act shall, if so required by the employer, or by any person by whom the employer is entitled under this Act to be indemnified, from time to time submit himself for examination by a duly qualified medical practitioner provided and paid by the em- ployer, or such other person ; but if the workman objects to an examination by that medical practi- tioner, or is dissatisfied by the certificate of such practitioner upon his condition when communicated to him, he may submit himself for examination to one of the medical practitioners appointed for the purposes of this Act, as mentioned in the Second Schedule to this Act, and the certificate of that medical practitioner as to the condition of the work- man at the time of the examination shall be given to the employer and workman, and shall be conclusive evidence of that condition. If the workman refuses to submit himself to such examination, or in any way obstructs the same, his right to such weekly payments shall be suspended until such examination has taken place. (12) Any weekly payment may be reviewed at the request either of the employer or of the workman, and on such review may be ended, diminished or increased, subject to the maximum above provided, and the amount of payment shall, in default of agreement, be settled by arbitration under this Act. 40 The WorlcmerCs Compensation Act, 1897, 60 & 61 (13) Where any weekly payment has been con- Sched I ^i^^6^ for not less than six months, the liability ■ '—^ therefor may (^), on the application by or on behalf of the employer, be redeemed by the payment of a lump sum, to be settled, in default of agreement, by arbi- tration under this Act, and such lump sum may be ordered by the committee or arbitrator to be invested or otherwise applied as above-mentioned. The chief object of tliis clause is to jirevent the inconveni- ence in -winding uji the estate of an employer burdened with compensation payable in the case of a lengthened incapacity, and also in cases of change of residence and transfer of business. (^) This leaves a discretion with the arbitrator only as to the amount for which the weekly jDayments should be commuted. (14) A weekly payment, or a sum paid by way of redemption thereof, shall not be capable of being assigned, charged, or attached, and shall not pass to any other person by operation of law, nor shall any claim be set off against the same. (15) Where a scheme certified under this Act provides for payment of compensation by a friendly society, the provisions of the proviso to the first sub- section of section eight, section sixteen, and section .59 & 60 _ forty-one of the Friendly Societies Act, 1896, shall ict. c. 2.3. ^^^ apply to such society in respect of such scheme. The proviso to the first sub-section of section 8 provides that a friendly society which contracts with any person for the assurance of an annuity exceeding 50/. per annum, or of a gross sum exceeding 200/. shall not be registered under the Act. Section IG deals with the registration of societies as- suring annuities. Section 41 limits the benefits which a person is entitled to receive from a friendly society. (16) In the application of this Schedule to Scotland the expression "registrar of the county court" means " sheriff clerk of the county," and " judge of the county court" means "sheriff." (17) In the application of this Act to Ireland the V" t ^Sfi provisions of the County Officers and Courts (Ire- GO ^ 61 Vict c. 37. 41 land) Act, 1877, with respect to money deposited in 9*^ ^ ^} the Post Office Savings Bank under that Act shall 8^!"^;^ i' ap2)ly to money invested in the Post Office Savings Bank under this Act. SECOND SCHEDULE. ARBITRATION. The following provisions shall apply for settling any matter which under this Act is to be settled by arbitration : — (1) If any committee, representative of an em- ployer and his workmen exists with power to settle matters under this Act in the case of the employer and workmen, the matter shall, unless either party objects, by notice in writing sent to the other 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 if there is no such committee, or the committee so refers the matter or fails to settle the matter within three months from the date of the claim, the matter shall be settled by a single arbitrator agreed on by the parties, or in the absence of agreement b}'' the county coui't judge, according to the procedure prescribed by the rules \a) of Court, or if in England the Lord Chancellor so authorizes, according to the like procedure, by a single arbitrator appointed by such county court judge. (3) Any arbitrator appointed by the county court judge shall, for the purposes of this Act, have all the ])Owers of a county court judge, and shall be paid out of moneys to be provided by Parliament in («) No Rules liave yet been issued. 42 The Workmen^ s Compensation Act, 1897, 60 & 61 accordance ■with regulations to be made by the Shed'n' Treasury. (4) The Arbitration Act, 1889, shall not appl}" to 52 & 53 any arbitration under this Act ; but the arbitrator Vict, c. 49. jjjay, if he thinks fit, submit any question of law for the decision of the coimty court judge, and the deci- sion of the judge on any question of law, either on such submission, or in any case where he himself settles the matter under this Act, shall be final, unless within the time and in accordance with the con- ditions prescribed by Rules (r/) of the Supreme Court either party ajopeals to the Court of Appeal ; and the county court judge, or the arbitrator appointed by him, shall, for the purpose of an arbitration under this Act, have the same powers of procuring the attendance of witnesses and the production of docu- ments as if the claim for compensation had been made by plaint in the county court. (5) Rules {(() of Court may make provision for the appearance in any arbitration under this Act of any party by some other person. (6) The costs of and incident to the arbitration and proceedings connected therewith shall be in the discretion of the arbitrator. The costs, whether before an arbitrator or in the county court, shall not ex- ceed the limit prescribed by rules {(i) of Court, and shall be taxed in manner prescribed by those rules. (7) In the case of the death or refusal or inability to act of an arbitrator, a judge of the High Court at Chambers may, on the application of any party, appoint a new arbitrator. (8) Where the amount of compensation under this Act shall have 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 {a) of Court, by {a) No Rules have yet been issued. 60 cy 61 Vict. c. 87. 43 the said committee or arbitrator, or by any party 60 & 61 interested, to the registrar of the county court for gched^ ii ' the district in which any person entitled to such '- compensation resides, who shall, subject to such rules, on being satisfied as to its genuineness, record such memorandum in a special register without fee, and thereupon the said memorandum shall for all pur- poses be enforceable as a county court judgment ; Provided that the county court judge may at any time rectify such register. (9) 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 con- trary intention appear, the same shall, subject to rules {a) 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 in which the accident out of which the said matter arose occurred, without prejudice to any transfer in manner provided by rules of Court. (10) The duty of a county court judge under this Act, or 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 the county courts appointed for the making of rules under section one hundred and sixty-four of the County Courts Acts, 1888, and when allowed by the 51 & 52 Lord Chancellor, as provided by that section, shall Vict. c. 43. have full effect without any further consent. (a) No Rules have yet been issued. 44 The Workmen^ s Compensation Act, 1897. 60 & 61^ (^21) No Court fee shall be payable by any party Sched. Il' ^^ respect of any proceeding under this Act in the county court prior to the award. (12) Any sum awarded as compensation shall be paid on the receipt of the person to whom it is pay- able under any agreemeut or award, and his solicitor or agent shall not be entitled to recover from him, or to claim a lien on, or deduct any amount for costs from, the said sum awarded, except such sum as may be awarded by the arbitrator or county court judge, on an application made by either party to determine the amount of costs to be paid to the said solicitor or agent, such sum to be awarded subject to taxation and to the scale of costs prescribed by rules (a) of Court. (13) The Secretary of State may appoint legally qualified medical practitioners for the purpose of this Act, and any committee, arbitrator, or judge may, subject to regulations made by the Secretary of State and the Treasury, appoint any such practitioner to report on any matter which seems material to any question arising in the arbitration ; and the expense of any such medical practitioner shall, subject to Treasury regulations, be paid out of moneys to be provided by Parliament. (14) In the application of this Schedule to Scot- land — (a) " Sheriff " shall be substituted for " county court judge," " sheriff court " for " county com-t," " action " for " plaint," " sheriff clerk " for " registrar of the county coui-t," and " act of sederunt " for " rules of Court : " (b) Any award or agreement as to compensation under this Act may be competently recorded for execution in the books of council and session or sheriff court books, and shall be enforceable in like manner as a recorded decree arbitral : {(I) No Rules have yet been issued. 60 Sr 61 Vict. c. 87. 45 (c) Any application to the sheriff as arbitrator 60 & 6i shall be heard, tried, and determined summarily Sched^ ir ' in the manner provided by the fifty-second section of the Sheriff Courts (Scotland) Act, 39 & 40 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 pre- scribed 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 finally, and remit to the sheriff with instruction as to the judgment to be pronounced. (15) Paragraphs four and seven of this Schedule shall not apply to Scotland. (16) In the application of this Schedule to Ireland the expression " county court judge " shall include the recorder of any city or town. 46 The Employers' LiaUUty Act, 1880, THE EMPLOYERS LIABILITY ACT, 1880. 43 & 44 Vict. c. 42. An Act to extend and regulate the Liahility of Employers to 7na]ce Compensation for Per- sonal Injuries suffered hy Workmen in their Service. Be it exacted by the Queen'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 : — Amend- 1. Where after the commencement of this Act law. personal injury is caused to a workman (^). (1) By reason of any defect (-) in the condi- tion of the ways, works, machinery, or plant connected with or used in the business of the employer ; or (^) As defined by sect 8. (2) Subject to sect. 2 (1) and (3). —defect in the condition of the ways, works, machinery, or plant. Ways. With regard to ""ways," Lord Esher, M. E., has said, The course which a workman would in ordinary cir- cumstances take in order to go from one part of a shop, where a part of the business is done, to another part where business is done, when the business of the employer requii'es him to do so, must be regarded as a "way" within the meaning of the statute (a). (a) Willetia v. Wait # Co., [1892] 2 Q. B. 92; 61 L. J., Q. B. 540. 43 cy 44 Vict c. 42. 47 And his lorclsliip also said that "a ' way ' need not be habitually used as such, and need not be marked out and defined " («). The fact that a substance has been negligently left by somebody in such a position as to obstruct the roadway is not " a defect in the condition of the way " {h). The fact of a plank being loose and tipping up when walked on is evidence of a " defect in the condition of the ways " (c). The fact that a workman, who had to pass close to an aperture to a staircase which was left unprotected, tripped over something and fell down the staircase is evidence of " a defect in the condition of the ways " {d). During the building of a house the workmen obtained access to the upper part by ladders placed in a well intended for a staircase. There was another well through the house in- tended for a lift, down which rubbish had been thrown during the building. Upon the staircase being completed it was closed and the ladders were moved to the lift well. No pre- cautions had been taken to prevent rubbish being thrown down after the ladders were moved. The plaintiff was ascending a ladder when a boy threw a plank down from the third floor and broke his collar bone. Held, there was no evidence of " a defect in the condition of the ways "(e). The plaintiff was employed by the defendants as a work- man in a large workshop where a part of their business was carried on. In the workshop was a catchpit generally covered with a lid. The lid was removed for a temporary purpose, and the plaintiff in passing fi'om one part of the workshop to another in the course of his business fell into the catchpit and was injured. Held, that the floor of the shop where plaintiff was passing was a " way," but held that the removal of the cover from the well did not constitute a " defect in the condition of the way " (a). The deceased had to pass from a gunboat to the shore by means of two barges moored to the shore and to each other. The ends of the barges were not roiuid but diagonal, and the end of the foremost barge was moored, not " end on," but on the left hand side, so that a man going straight on must fall 43 & 44 Vict. c. 42, «• 1 (1)- Defect in the con- dition of the ways, works, machi- nery, or plant. («) Willetts v. Watt ^- Co., [1892] 2 Q. B. 92; 61 L. J., Q. B. 640. {b) 1882, M'Giffen v. Palmer's Shipbuilding Co., 10 Q. B. D. 5 ; 52 L. J.. Q. B. 25. [c) 1886, Bromlry v. Cavendish Spinning Co., 2 T. L. R. 881. \d) 1886, Wood v. Borrall ^ Co., 2 T. L. R. 550. [e) 1886, Pegram v. Bixon, 2 T. L. R. 801 ; 55 L. J., Q. B. 446 48 The Emploijers' Liahilitij Act^ 1880, 43 &44 Vict. c. 42, 8. 1 (1). Works, machi- nery, and plant. Machinery out of order. Machinerj- and plant unfit for the pur- pose to which it is applied. into the river, and he had to turn rather to the left to get on to the diagonal end of the foremost barge, and there were no rails. The deceased in jjassing two men bearing long planks, having himself a sack of coals on his shoulders, turned too much to the right and fell into the river, and was drowned. Held, there was evidence on wliich the jury might find a defect in the plant {g). — works, machinery and plant. Machinery out of order. The fact that a band is constantly slipping off a machine is evidence of a " defect " in its condition (Ji). A crane, on the morning of the accident, had been working erratically, occasionally dropping the load back into the barge after raising it a certain height. The work was stopped for half an hour. When it was resumed, one witness said that the crane worked better for a time, but, after a short time, it again dropped the load it was raising and injured the plaintiff. Held, that there was evidence of a "defect in the condition of the machinery" (/). — machinery and plant unfit for the purpose to which it is applied. The fact that a machine is unfit for the purpose to which it is applied constitutes a ' ' defect in its condition" {h). Plaintiff, a workman in defendant's employment, was in- jured by reason of the breaking of a ladder, which was being used to support a scaffold. The ladder was insufficient for the purpose for which it was used, and the scaffold and ladder had been placed and were being used under the directions of one of the defendants. Held, that there was evidence of a " defect in the condition of the plant " (/). An employer who uses an arrangement of machinery (not in itself defective), the handling of which, as he knows, is entrusted to such men as stevedores' labourers, is not entitled to have excluded from the consideration of its "reasonable fitness " an obvious chance of danger through theii- want of care('m). The absence, in the condition of the machinery taken as a whole, of any sufficient safeguard against danger arising from an ordinary and probable occurrence, as a slip in the management of a winch, is a "defect " (m). {g) 1894, Gilly. Thornycroft, 10 T. L. R. 316. [h) 1888, Baxter v. Wyma» cf- Sons, 4 T. L. R. 255. (i) 1887, Bncon v. TJmccs 4'- Co., 3 T. L. R. 5.57. (/,) 1883, J/c»/>e V. Sanuichon, 1 2 Q. B. D. 30 ; .");5 L. J., Q. B. 45. (0 1884, Crippsv. Judge, 13 Q. B. Div. 583 ; 53 L. J., Q. B. 517. (;h) 1893, Sianion \. Scruiion, 5 R. 244 ; 62 L. J., Q. B. 405. 43 isou v. i. ^ Y. R>/. Co., 20 W. R. 297. \p) 1889, Pack v. Rayward, s'T. L. R. 233. [q) 1892, TJwmson v. Bick, 19 So. Sess. Cas., 4th Series, 804. (r) 1884, Jones v. Burford, 1 T. L. R. 137. D 50 The Employers' Liability Act, 1880, 43 & 44 of one of the waggons, one of the defendant's seiTants was Vict. c. 42, injm-ed. Held, that the waggons were not the plant of the 8- 1 (!)• defendant (s). Works in course of construc- tion. Dangerous machi- nery. — works in course of construction. The clause does not apply to works in course of construction (<). — dangerous machinery. The mere fact that a machine is dangerous to a workman employed to work with it does not show that there is a defect in the condition of the machine (h). The absence, in the condition of the machinery taken as a whole, of any sufficient safeguaixl against danger arising fi'om an ordinary and probable occiu'rence, as a slip in the management of a winch, is a " defect in its condition" (.t). The plaintiff, a lad of nineteen, was employed in the de- fendants' i)aper-mill at a machine for cutting jute. The material passed under a roller which conveyed it to the cutter; but the roller being in several pieces or sections, with interstices between them, into which the jute sometimes got, and so impeded the action of the machine, it was neces- sary (or usual) to remove it by the hand. In doing this the plaintiff lost three fingers. The defect had been pointed out to the defendants, who, to remedy it, procui'ed a roller in one piece ; but the accident happened before the new roller was placed. The maker swore that, with care, both rollers were equally safe. Held, that thei-e was evidence for the jury that the injury was caused by a defect in the machine (y). The temporary removal of a guard to machinery by a per- son entrusted by the emi:)loyer with the duty of seeing that the machinery was in proper condition is a " defect" (2). A leather- pressing machine, in every way perfect and in no way defective for the simple purpose of pressing leather, had at its side a wheel and cogs unguarded. A boy who fed the machine with leather by some means entangled his hand in this wheel and received injuries. Held, that there was evidence for the jury of a " defect" in the condition of the machine (o). («) 1892, Robimon v. John Watson, Ltd., 20 So. Sess. Cas., 4th Series, 144. [t) 1885, Eoive v. Mark Finch ^- Co., 17 Q. B. D. 187. (m) 1888, Walsh v. Whitcley, 21 Q.B.Div. 1571 ; 57 L. J., Q. B. 686. (x) 1893, Stanton v. Scrutton, 5 R. 244; 62 L. J., Q. B. 405. (V) 1885, Paley v. Garnctt, 16 Q. B. D. 52. (c) Tate v. Latham % Son, [1897] 1 Q. B. 502 (C. A.) ; 66 L. J., Q. B. 349. (a) 1890, lloryan v. Hutchins, 59 L. J., Q. B. 197. 43 ^ 4:4: Vict c. 42. 51 — Plant. A horse is "plant" and. vice in a horse is a 43 6.: 44 " defect in its conflition " {b). Vict. c. 42, — Other cases. "Where a boy was engaged in moving " certain iron stanchions on a ti'olly, and the stanchions were Plant, not packed or protected from falling off, and in consequence /-v., one of them fell and injured one of the boy's fingers. cases Held, that the neglect to pack or to protect them from falling off did not constitute a defect in the condition of the plant (c). The jDlaintiff had to go up a temporary staging, the floor of which was made of loose planks. Owing to one of them having been insecui'ely placed on the cross pieces the plaintiff' was injured. Held, there was evidence of a " defect in the condition of the plant "('/)• The defendant, a builder, was engaged in pulling down an old. house. After the roof had been removed and part of the walls pulled down, he ordered the plaintiff', a labourer in his employment, to remove some of the debris of the roof which lay on the ground near one of the walls which was still left standing. "\\Tiile the plaintiff was carrying out that order the wall, owing to the neglect of the defendant to have it shored uj), fell ujion the plaintiff and injiu'ed him. Held, that the dangerous condition of the wall was a ' ' defect in the condition of the woi'ks " (e). (2) By reason of the negligence of any person in s. i (2). the service of the employer who has any super- intendence {}) entrusted to him whilst in the exercise of such superintendence ; or (1) As defined by sect. 8, see post, p. 66. — in the exercise of such superintendence. A man named T., in the employment of the defendant, told the plaintiff to work in a barge. T. gave all the orders at the time of the accident, and assisted in throwing over Lron into the barge. Two bundles of iron had been thrown over before that which struck the plaintiff and injured him. When the {b) 1S87, Yarmouth V.France, 19 Q. B. Div. 647; 57 L. J.,Q.B. 7. (e) 1888, Corcoran v. Uast Stirrey Ironworks Co., 58 L. J., Q. B. 145. {d) 1885, Giles v. Thames Iromvorks Shipbuilding Co., 1 T. L. R. 469. {e) Brannigan v. Robinson, [1892] 1 Q. B 344 ; 61 L. J., Q. B. 202. d2 52 The Employers^ Liahility Act, 1880, 43 &44 Vict. c. 42, 8. 1 (2). 8. 1 (3). Person . . to whose orders or direciions the work- man . . was bound to conform. first was thrown T. came to the ship's side and called "Stand from under," but he did not do so when the bundle was thrown which struck the plaintifP. Held, that there was evi- dence of negligence committed in the exercise of superintend- ence (/). See also KeUard v. Bonke, post, p. 54, An employer may be liable under sect. 1 (2) althoiigh the superintendent, when negligent, is voluntarily assisting in manual labour. The plaintiff, a bricklayer in the employment of the defen- dants, was at work near a shoring, while a scaffold was being taken down by their other workmen. The defendants' fore- man handed a scaffold plank to C, a labourer, and called to him to take it. C. took the end of it, but was so far off that he could not hold the plank, and, the foreman letting his end go, the plank slipi:)ed and knocked down the shoring, which fell upon the plaintiff and hurt him. Held, that there was evidence that the foreman was negligent in the exercise of superintendence {. 258; 52L. J.,Q. B. 480. d5 The Employers' Liability Act, 1880, •13 & 44 Vict. c. 42 Excep- tions to amend- ment of l;iw. Plant erected by a eon- tractor. Duty to examine plant. 2. A workman shall not be entitled under this Act to any right of compensation or remedy against the employer in any of the following cases, that is to say,— (1) Under sub-section one of section one, unless the defect therein mentioned arose from, or had not been discovered or remedied owing to the negligence of the employer, or of some person in the service of the employer, and entrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition. —negligence of the employer. Plant erected by a con- tractor. A defect in plant erected by a competent con- tractor "will not make the employer liable wbere there is no other evidence of negligence («). The plaintiff was injui-ed by the fall of a wall. The fore- man had observed that the wall was unsafe, and ordered a contractor to shore up the wall. This was done, and the foreman, having been assured by the contractor that the wall was safe, sent the plaintiff to his work by it. Shortly afterwards the wall fell. The foreman did not personally inspect it, but trusted to the assurance of the contractor. Held, that there was no evidence of negligence on the i^art of the defendants or of any person in their service entrusted by them " with the duty," &c. (6). —negligence of the employer. Duty to examine plant. A workman was killed through a roi)e ])r('aking, by which he was suspended in order to attach a lightning conductor to a high chimney. The evidence showed that the defect in the rope might have been caused by a " nip " in the rope, which could have been detected by the hand of a skilled person, and that no such examination took jilace before using the rope. Held, there was evidence of negligence on the ])art of the employer (r). A railway company, employed by the defendant, a coal- master, as carriers, brought empty waggons to be filled with (a) 1885, Kiddle v. Zovett, 16 Q. B. D. 605. {b) 1889, Moore v. Ghnson, 58 L. J., Q. B. 169. (c) 1882, Fraser v. Fraser, 9 Sc. Sess. Cas., 4th Series, 896. 43 cV 44 Vict c. 42. 59 coal to the lye of a coal pit, where they were left in charse 43 & 44 of the defendant's servants. Owing to a defect in the brake ^ict. c. 42, of one of the waggons one of the defendant's servants was ^- ^ (!)• injured. Held, that, assuming the waggons were the plant " of the defendant, there was no negligence in not having them overlooked {d). —negligence of the employer. Dangerous machinery. Dangerous Machinery could be worked by the servant in a reasonable ^I'lchi- manner without danger to himself. No instructions were °'?'^T- given to him to work it in a mode which would endanger his safety. The safe mode, as well as the dangerous mode, of working was known to him, the danger of the latter being apparent. Held, that there was no evidence of negligence on the part of the employers (e). —negligence of the employer. Onus of proof. The Ouus of plaintiff had to go up a temporary staging, the floor of P^'^'J*- which was made with loose planks. Owing to one of them having been insecui-ely placed on the cross pieces, the plain- tiff was inJTU'ed. Held, that the plaintiff having proved the fact of the accident, there was no onus on him to prove that the defect had existed for such a time as to impute negligence to the defendants' servants (/). (2) Under sub-section four of section one, unless ;* 2 (2). the inJTuy resulted from some impropriety or defect in the rules, bye-laws, or instructions therein mentioned ; provided that where a rule or bye-law has been approved or has been accepted as a proper rule or bye-law by one of her Majesty's Principal Secretaries of State, or by the Board of Trade or any other department of the Grovernment, under or by virtue of any Act of Parliament, it shall not be deemed, for the purposes of this Act, to be an improper or defective rule or bye-law. (3) In any case where the workman knew of the s. 2 (3). {d) 1892, Robinson v. John Watson, Ltd., 20 So. Sess. Cas., 4th Series, 144. {e) 1893, Koo7ian v. The Dublin Bistillery Co., 32 L. R. Ir. 399. (/) 1885, Giles v. Thames Ironworks Shipbuilding Co., 1 T. L. R. 469. 60 The Employers^ Liability Act, 1880, 43 & 44 Vict. c. 42, 8. 2 (3). s. 3. Limit of suni re- coverable as com- peiisation. defect or negligence which caused his injury, and failed within a reasonable time to give, or cause to be given, information thereof to the employer or some person superior to him- self in the service of the employer, unless he was aware that the employer or such superior ah'eady knew of the said defect or negli- gence (^). (') There does not seem to have been much litigation under this sub-section. Cases in which the workman knew of the defect in the machinery, &c., have usually been defended on the common law ground of ^^ volenti non fit injuria^ See post, p. 77. 3. The amount of compensation recoverable under this Act shall not exceed such sum as may be found to be equivalent to the estimated earnings, during the three years preceding the injury, of a person in the same grade employed duiing those years in the like employment, and in the district in which the workman is employed at the time of the injury. The jury may take into consideration overtime work earned fi'om another employer, provided they do not exceed the Limit imposed by sect. 3 ((/), The plaintiff was apprenticed to the defendants, and re- ceived a salary of Is. a week for the first year, increasing Is. a week each year. In the fifth year, when he was earning 5s. a week, he was injured, and brought an action to recover compensation under the Act. Evidence was given that at the end of the fifth year, when the plaintiff would be out of his apprenticeshij), he would be able to earn from 14s. to 18s. a week, and the compensation was assessed at 80/. Held, that the amount which the plaintiff could earn when out of his apprenticeship coiild not bo taken into consideration, but only the amount of his actual earnings as an apprentice ; and the amount of the judgment must therefore be reduced (//). (r/) 188G, Bortick v. Head, TJ'rightson S; Co., 63 L. T. (N. S.) 909. (h) Noel V. Redruth Foundry Co., [1896] I Q. B. 453. 43 ^ 44 Vict. c. 42. 61 4. An action for the recovery under this Act of ^^ ^ ^* compensation for an injury shall not be maintainable s. 4. unless notice (') that injury has been sustained is -i-.jmH, of ffiven within six weeks (^) , and the action is com- time for rccovGrv menced within six months from the occurrence of of com- the accident causing the injury, or, in case of death, pensation. within twelve months from the time of death : Pro- vided always, that in case of death, the want of such notice shall be no bar to the maintenance of such action if the judge shall be of opinion that there was reasonable excuse (^) for such want of notice. (') The notice must be in writing (r). Where a workman, on the day he had been injured, made a verbal report of such injury to his employer's inspector, who took down the details in writing and sent them to the employer's superintendent, and afterwards the workman's solicitor wrote a letter to the emi^loyer stating that he was instructed by such workman to ajiply for compensation for injiu'ies received on the employer's premises, " particulars of which have already been communicated to your superinten- dent." Held, that this was not a notice in compliance with the Act. Query, if notice can be made by one writing referring to another writing {k), (-) Where the accident happened on May 7th, and the notice could not be received before June 19th, it was too late {I). (^) It is not a reasonable excuse for want of notice that the pursuer was an old man, and illiterate, and was not aware of the necessity of giving notice, and that it was not known whether the deceased would survive the injuries received and sue himself (m). The omission to give notice in consequence of the state of (i) See sect. 7, and, 1881. Moyle v. Jenkins, 8 Q. B. D. 116. \h) 1882, Keen v. Millwall Bock Co., 8 Q. B. Div. 482 ; 51 L. J., Q. B. 277. {I) 1886, McBonagh v. P. ^- TT. MacLellan, 13 Sc. Sess. Cas., 4th Series, 100. (m) 1897, McFayden v. Balmellington Iron Co., 24 Sc. Sess. Oas., 4tli Series, 327. 62 The Employers' LiaUlitij Act, 1880, 43 & 44 mind of plaintifP, through the death of the deceased, is not a Vict. c. 42, reasonable excuse (n). s. 4 s. 5 5. There shall be deducted from any compensation Money awarded to any workman, or representatives of a under ^ workman, or persons claiming by, under, or through penalty a workman in respect of any cause of action arisinc: to be de- , i . » ^ i , ^ , ducted under this Act, any penalty or part or a penalty from com- -^jjidi may have been paid in pursuance of any other pensation -^ ■•• ^ >' ^ under Act. Act of Parliament to such workman, representatives, or persons in respect of the same cause of action ; and where an action has been brought under this Act by any workman, or the representatives of any w'orkman, or any persons claiming by, under, or through such workman, for comj)ensation in respect of any cause of action arising under this Act, and paj^ment has not previously been made of any penalty or part of a penalty under any other Act of Parliament in respect of the same cause of action, such workman, representatives, or person shall not be entitled thereafter to receive any penalty or part of a penalty under any other Act of Parliament in respect of the same cause of action. s. 6 (1). 6. — (1) Every action for recovery of compensation Trial of -^xi^Jer this Act shall be brought in a county court, actions. ^ ^ ^ _ . . but may, upon the application of either i)laintiff or defendant, be removed into a superior court in like manner and upon the same conditions as an action commenced in a county court may by law be removed. A ])laiutift" a])plied for a certiorari to remove the action into the High Court, on the grounds that his notice given under the Act was defective ; that he desired to consolidate the («) Connolly v. Yo/oif/'s Farajfin Lif/ht and Mineral Oil Co., Ltd., 22 Sc. Sess. Cas., 4th Scries, SO. 43 ^ 44 Vict c. 42. 63 action witli one brouglit by him in the suiierior Court to 43 & 44 recover damages for the same injury at common law, and Vict. c. 42, that the questions arising were of considerable complexity s- ^ (!)• and legal difficulty. Held, that the power of removal ought ry ■ i ^ only to be exercised in exceptional cases, and that no such ^^^ ° special grounds had been shown as to induce the Comt to grant the application (o). actions. (2) Upon the trial of any such action in a county s. 6 (2). court before the judge without a jury, one or more assessors may be appointed for the purpose of ascer- taining the amount of compensation. (3) For the purpose of regulating the conditions s. 6 (3). and mode of appointment and remuneration of such assessors, and all matters of procedure relating to their duties, and also for the purpose of consoli- dating any actions under this Act in a county court, and otherwise preventing multiplicity of such actions, rules (') and regulations may be made, varied, and repealed from time to time in the same manner as rules and regulations for regulating the practice and procedure in other actions in county courts. (^) See^os^, p. 71. " County court " shall, with respect to Scotland, mean the " sheriff's court," and shall, with respect to Ireland, mean the " civil bill court." In Scotland any action under this Act may be removed to the Court of Session at the instance of either party, in the manner provided by, and subject to the conditions prescribed by, section nine of the Sheriff Courts (Scotland) Act, 1877. 40 & 4i In Scotland the sheriff may conjoin actions arising (o) 1882, Mitnday v. Thames Ironworks Co., 10 Q. B. D 59 • 5'> L. J., Q. B. 119. Vict. c. 50. 64 The Employers^ Liability Act^ 1880, 4:3&44 Vict. c. 42, s. 6 (3). S. (. Mode of serving notice of injury. out of the same occurrence or cause of action, though, at the instance of different parties and in respect of different injuries. 7. Notice in respect of an injury under this Act shall give the name {}) and address (^) of the person injured, and shall state in ordinary language the cause of the injury ('■) and the date {}) at which it was sustained, and shall be served on the employer, or, if there is more than one employer, upon one of such employers. The notice may be served by delivering the same to or at the residence or place of business of the person on whom it is to be served. The notice may also be served by post by a regis- tered letter addressed to the person on whom it is to be served at his last known place of residence or place of business ; and, if served by post, shall be deemed to have been served at the time when a letter con- taining the same would be delivered in the ordinary course of post ; and, in proving the service of such notice, it shall be sufficient to prove that the notice was properly addressed and registered. Where the employer is a body of persons corporate or unincorporate, the notice shall be served by deliver- ing the same at or by sending it by post in a registered letter addressed to the office, or, if there be more than one office, any one of the offices of such body. A notice under this section shall not be deemed invalid (-) by reason of any defect {}) or in- accuracy therein, unless the judge who tries the action arising from the injury mentioned in the notice shall be of opinion that the defendant in the 43 Ss" U Vict. c. 42. 65 injury. action is prejudiced in his defence by such defect or f 3 & 44 inaccuracy, and that the defect or inaccuracy was for s! 7. the purpose of misleading. M^de^f serving Q) The absence of the name and addi-ess of the employer notice of is not a fatal objection, but is a " defect" within the last clause (p). Similarly, a mistake in the initials of the defendant is merely a " defect " (2). Similarly, the omission of the date of the injury is merely a " defect " {p){r). A letter from the plaintiff's solicitor gave only the date of the injury, and stated that the plaintiff' was and had for some time past been under treatment at a hospital for injury to his leg. Held, that there was merely a defect in the notice (s). The plaintiff's notice stated that she was injured in con- sequence of the defendants' negligence in leaving a certain hoist in their warehouse unprotected, whereby her foot was caught in the casement of the hoist and crushed. At the trial, the jury found that the accident occurred through the negligence of a superintendent in the warehouse, in allowing the plaintiff, a young giii, to go in the hoist alone. The judge was not asked to come to the conclusion that the defendant was prejudiced, or that thei'e was any intention to mislead. Held, that the notice was sufficient {t). A letter as follows is suificient: " Dear Sii", — I find I will need some more money, and will you please obHge me with ten shillings. It is now five weeks since Adam got his accident. His jaw is so badly smashed that he will never be the same man again. Adam has been advised to get damages from you." It was written by the plaintiff's wife(«(). The notice merely stated that the plaintiff had sustained an injury at the defendant's place on August 8th, and omitted the cause of accident, the addi-ess of the plaintiff, and mis- stated the date, which was August 9th. Held, that there was merely a " defect " in the notice (.r). Where a workman, on the day he had been injured, made a verbal report of such injiuy to his employer's inspector (p) 1888, Beckett v. Corporation of Manchester, 52 J. P. 346. (i Co., 10 Q. B. D. 356; 52 L. J., Q. B. 260. [e) 1888, Eellard v. Roolce, 21 Q. B. Div. 367 ; 57 L. J., Q. B. 599. (/) 1893, Pearce v. Lansdowne, 62 L. J., Q. B. 441. tions. 68 The Emphijcrs' Liahility Act, 1880, 43 & 44 An omnibus conductor is not a workman (-> 1880 Act. 1877, Woodley \. The Metropolitan District Eatl. Co., ~ 2 Ex. Div. 384 ; 46 L. J., Ex. 521. The plaintiff, a workman in the employ of a contractor engaged by the defendants, had to work in a dark tunnel rendered dangerous by the passing of trains. After he had been working a fortnight, he was injured by a passing train. The jury found that the defendants, in not adopting any precautions for the protection of the plaintiff, had been guilty of negligence. Held, that the plaintiff, having continued in his employment with full knowledge, could not make the defendants liable for an injury arising from danger to which he voluntarily exposed himself. 1887, Thomas v. Quartermaine, 18 Q. B. Div. 685; 56 L. J., Q. B. 340. The plaintiff was employed in a cooling-room in the defendant's brewery. In the room was a boiling- vat and a cooling- vat, and between them ran a passage, which was in part only 3 ft. wide. The cooling-vat had a rim raised 16 inches above the level of the passage, but it was not fenced or railed in. The plaintiff went along this passage to pull a board from under the boiling-vat. This board stuck fast and then came away suddenly, so that he fell back into the cooling- vat and was scalded. The county court judge found that the condition of the vat was known to the plaintiff. Held, that the maxim " volenti non Jit injuria " applied, and judgment entered for the defendant. 1888, Church V. Appleby, 58 L. J., Q. B. 144. "Where a workman was employed on a staging in the middle of the river T., which was protected on one side only, and it was part of his duty to work on the unpro- Brought under Employers^ Liahiliti) Act^ 1880. 83 In favour of Defendant — continued. Defences under tected side, and, in tlie course of his employment, he 1880 Aut. fell over at night and was drowned, the jury found that the structure was defective, and that the deceased lost his life in consequence of the defect ; but they also found that he knew of the defect, and was willing to incur the risk. Held, there was evidence for the jury that he did so voluntarily incur the risk, and that his widow could not recover damages. 2. That the injury arose from "inevitable accident." Under this head is included injury arising from the act of God, or the king's enemies, and also injuries arising from latent defects in machinery which could not be guarded against in the process of construction (A), and which could not have been observed by the use of ordinary and reasonable care (/). 3. That the plaintiff was guilty of contributory negli- gence. In order for the plaintiff to succeed, he must show that the negligence of the defendant was the proximate cause of the accident. "Proximate" is the word gene- rally used, but it does not refer to time, and Sir Frederick Pollock prefers the expression " decisive cause " {Ji). Thus it will be an answer to the plaintiffs claim if the defendant can show that either before, or at the time of, or after the negligence alleged, the plaintiff was {Ji) 1877, Readhead v. Midland Railway Co., L. E., 2 Q. B. 412 ; 38 L. J., Q. B. 169. [i) 1861, Stokes V. Eastern Coimties Rail. Co., 2 F. & F. 691 (Cockburn, C. J.). [k) See Pollock on Torts, 4th ed., p. 417. 84 Common Law Defences to Actions Defences guilty of negligence which was the proximate cause of under ,i • . 1880 Act. the injury. If the defendant can show this, he will have estab- lished the defence of contributory negligence. 1. If, prior to the negligence of the defendant, the plaintiff has been guilty of negligence, the ques- tion for the Jury, in order to determine which negligence is the proximate cause of the accident, is usually put in the following form : — Although the plaititijf may have been guilty of negligence, and altliough that negligence may in fact have contributed to the accident, yet if the defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff^ s negligence will not excuse him. (1). 2. If, contemporaneously with the negligence of the defendant, the plaintiff has been guilty of negli- gence, the question for the jury will be — Whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary and common care and caution that, but for such negligence or icant of ordinary care and caution on his part, the misfortune tvould not have happened {ni). 3. If, after the negligence of the defendant, the plaintiff has been guilty of negligence, the question for the jury will be — Whether the plaintiff could, by the exercise of {I) Lord Penzance in, 1876, Eadk'i/ v. Z. ^- N. W. E. Co., 1 App. Cas. 759; 46 L. J., Ex. 573. {m) The Court in, 1858, Tuf^. W'arman, 5 C. B. (N. S.) 585 ; 27 L. J., C. P. 322. Brought under Employ ei's' Liability Act^ 1880. 85 such care mid skill as he was bound to exercise, Defences have avoided the consequence of the defendant s jggQ ^^^ negligence (n). • It is beyond tlie scope of this work to deal exhaus- tively with the subject of "contributory negligence," and for the consideration of difficult cases not covered by the above principles, reference must be made to the larger works on Torts. There remain two points which it is necessary to notice, i.e., contributory negligence of strangers and children. With regard to strangers, speaking generally, con- tributory negligence on the part of a stranger is no defence. (See Pollock on Torts, 4th ed., p. 424.) With regard to children, it may be stated generally that what would be contributory negligence on the part of an adult may not be contributory negligence on the part of a child (o). Where a child is in the charge of a grown up person, and an accident happens to the child in which the grown up person is guilty of con- tributory negligence, the child will not be able to recover ^p). 4. That the plaintiff was a "trespasser" or "bare licensee." It is obvious that this defence takes us out of the scope of the law dealing with " employer " and " workman " into the wide fields of the common law. An employer cannot generally be in a position to say (w) Lord Blackburn in, 1878, Dublin, Wiclcloiv, ^- Wexford R. Co. V. iSlattery, 3 App. Cas. 1207. (o) 1888, Crocker v. Banks, 4 T. L. R. 324. \p) 1858, Waite v. N. E. li., E. B. & E. 719 ; 28 L. J., Q. B. 258- 86 Common Lmv Defences to Actions Defences that his "workman" is a "trespasser" or "bare 1880 Act licensee." Accordingly, as might be expected, the cases dealing with this subject are not cases under the Employers' Liability Act at all. The subject is, how- ever, an important one, and borders closely on the law of employer and workman, and we, therefore, think it desirable to notice it shortly. The law as regards a " bare licensee" has been stated as follows : — " What, then, is the duty of an owner of premises to a mere licensee ? His liabilities differ when the matter complained of is a defect in the premises, and when the matter complained of is an act of misfeasance, or, in other words, when the matter complained of is active negligence on the part of the defendant towards the plaintiff. As regards the first, the owner of premises is under no liability to a licensee, unless something in the nature of a trap or concealed danger exists (see Corby v. Hill) ; for the licensee must take the premises as he finds them, and there is no obliga- tion to alter the premises for his safety or convenience. He must take them as they are, save as above-men- tioned, for better and for worse." "When, however, misfeasance is what is complained of, it is the duty of the owner of premises not to neglect to use ordinary' care and skill towards the licensee in what the owner is doing, so that the licensee may not be thereby injured. If the owner does so neglect, and the licensee is thereby injured, the owner is liable." . . . "The point is, was there evidence that when the defendant was guilty of the carelessness complained of, he had reason to suppose that the licensee would be where he was, and in consequence of such carelessness would be injured as he was? " Smith, J. [q). {q) 1888, Tolhmsen v. Lavies, 57 L. J., Q. B. 392. Brought under Employers' Liability Act, 1880. 87 It is sometimes rather difficult to determine whether Defences or not the plaintiff is a "bare licensee." It has been 1 880 Act. held, that where the plaintiff is engaged, with the con- sent and invitation of the defendant, in a transaction of common interest to both parties, he is not a "mere licensee " (r). In a later case, Lord Esher, M. R., laid down the following principle, which goes a step further in favour of the plaintiff (s) : — "Whenever one person is by circumstances placed in such a position with regard to another, that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circum- stances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger." This principle was, perhaps, not necessary for the decision of Heaven v. Pender, but it has been adopted and taken as the principle for the decision of a later case(^). 5. That the plaintiff has contracted away his right of action under the Act. It is competent to a workman to contract with his employer not to claim compensation for personal injuries under the Employers' Liability Act, 1880 (?<). (r) 1869, Holmes v. N. E. R., L. R., 4 Ex. 254 ; 40 L. J., Ex. 121 ; 1876, Wright v. L. ^ N. W. R. Co., 1 Q. B. D. 252 ; 45 L. J., Q. B. 570. [s) 1883, Heaveti v. Pender, 11 Q. B. Div. 503; 52 L. J., Q. B. 702. {t) 1888, TImissel v. Randyside, 20 Q. B. D. 359 ; 57 L. J., Q. B. 347. {u) 1882, Griffiths v. Earl of Dudley, 9 Q. B. D. 357 ; 51 L. J., Q. B. 543. 88 Common Law Defences to Actions Defences Notices were posted to the effect that from the weekly 1880 Act '^^g^s to the workmen certain sums woixld be deducted to secure certain insurance benefits in case of accident, and that any workman accepting such benefits would be held to have discharged all claims against his employers. The notices were well known to the defen- dant's workmen, and the pursuer had taken benefit of the insurance. Held, that the pursuer must be held to have known of and assented to the conditions {x). An infant may contract away his right of action if the contract with the employer is on the whole for the benefit of the infant (y). 6. In cases where the injury is alleged to arise from the negligence of a servant of the defendant, that the doctrine of "respondeat superior" does not apply, either because — (a) The negligent act was not within the scope of the servant's emplo;yTnent ; (b) The servant was not the servant of the defendant at the time of the accident. (a) When a plaintifP brings an action against a defen- dant for injuries received, through the negligence of the defendant's servants, he relies on the principle respon- deat superior, that is to say, that the master is liable for the acts of his servants. To such an action it is, however, a complete defence that the negligent act complained of was not within the scope of the servant's employment. [x] 1893, TFrifflit v. Howard, Baker ^- Co., 21 Sc. Sess. Cas., 4th Series, 2.5. (?/) Clements V. L. i- iY. TF. E., [1894] 2 Q. B. 482; 63 L. J., Q. B. 837. Brought under Em'ployers' Liability Act, 1880. 89 Sir Frederick Pollock in his "Work on Torts (s) gives Defences the following as the four instances in which a wrongful ^ggQ ^^^ act is considered to be within the scope of the servant's employment : — (1) It may be the natural consequence of something being done by a servant with ordinary care in execution of the master's specific orders. (2) It may be due to the servant's want of care in carrying on the work or business in which he is employed. (3) The servant's wrong may consist in excess or mistaken execution of a lawful authority. (4) It may even be a wilful wrong, such as assault, provided the act is done on the master's behalf and with the intention of serving his purposes. (1) The first instance is obvious, and hardly needs illustration. (2) In the second instance there is often a difficulty in deciding whether the servant is or is not carrying on the work or business on which he is employed. If the servant is not doing the master's business, but is doing something on his own behalf, the master is not liable. On the other hand, trivial facts will be disregarded in considering whether a servant has left off doing his master's business. Thus, where a carter who had orders not to leave his horse and cart on the place where he was employed, but was allowed an hour for dinner, went home to dinner leaving the horse and cart unattended, and an accident happened, the employer was held liable (a) ; but where the carman took the horse and cart out of his proper route to call at a house on business of his own, the employer was held not liable ; but the Court held that the employer would have been [z] Pollock on Torts, 4tli ed., p. 76. (a) 1868, Whatman v. Fearson, 3 C. P. 422 ; 37 L. J., C. P. 156. 90 Common Law Defences to Actions Defences liable if the carman had been merely going a round- 1880 Act. about way borne {b). ' (3) Of this a good example is Bayley v. Manchester^ Sheffield and Lincolnshire Rail. Co. (c), in which a porter, thinking a passenger was in the wrong train, pulled him out, when in fact he was in the right train. It was the duty of the porter to see that passengers did not get into wrong trains, but not to remove them from wrong trains. The company were held liable. (4) Of this a good example is the well-known case of Limjms V. London General Omnibus Co. (d), in which the driver had purposely obstructed the plaintiff's omni- bus by pulling across the road in front of it, thereby upsetting it. He had printed instructions not to ob- struct other omnibuses. Martin, B., dii-ected the jury — "That, where the relation of master and servant existed, the master was responsible for the reckless and improper conduct of the servant in the course of the service ; and that if the jury believed that the real truth of the matter was that the defendants' driver, being dissatisfied and irritated with the plain- tiffs' driver, whether justly or unjustly, by reason of what had occurred, and in that state of mind acted recklessly, wantonly, and improperly, but in the course of his service and employment, and in doing that which he believed to be for the interest of the defendants, then the defendants are responsible for the act of their servant ; but that if the true character of the act of the defendants' servant was that it was an act of his own, and in order to effect a purpose of his own, the defendants were not responsible." This direction was upheld by the Exchequer Chamber. (b) 1869, Storefj v. Ashton, L. R., 4 Q. B. 476 ; 38 L, J., Q. B.. 223. (c) 1873, 8 C. P. 148 ; 42 L. J., C. P. 78. {d) 1862, 1 H. & C. 520; 32 L. J., Ex. 34. Brought under Employers' Liability Act, 1880. 91 (b) The defence that the servant, by whose wrongful Defences uiKiGr act the injury is caused, is not the servant of the defen- ^^gso Act. dant at the time of the accident, is obviously a com- plete answer to an action founded on the doctrine of " respondeat superior.'^ 1. Sub-contractors. — When the defendant has em- ployed a sub-contractor to do the work, he is not liable for the negligence of the sub-contractor or his work- men (e). The fact that the defendant reserves to himself the power of dismissing any of the contractor's workmen for incompetence does not make him responsible for the negligence of the workmen {f). ** The test, I think, always is, had the superior personal control or power over the acting, or mode of acting, of the subordinate?" {y). The following are the principal cases on this subject, and they show that very slight evidence of control over the sub-contractor's workmen is sufficient to fix the defendant with liability : — In FAvomi OF PLAINTIFF. 1885, Broicn v. Butterleij, 53 L. T., N. S. 964. The defendants were owners of a coal mine worked under the "butty" system. In mines so worked, "butty" men contract with the owners of the mine to bring coal up at so much per ton, and, for this purpose, employ men under them. The deceased had been so {e) 1842, Rapson v. Cubitt, 9 M. & W. 710. (/) 1849, Eeedie v. L. % N. W. R. Co., 4 Ex. 244; 20 L. J., Ex. 65. {g) Lord GiflPord in, 1876, Stephen v. Thurso Police Commissioners ^ 3 Sc. Sess. Cas., 4th Series, 535. 92 Common Law Defences to Actions Defences In favour of Platntiff — continued. under 1880 Act. employed, and had been killed by an explosion while working in the mine. Both the " butty " men and the men employed by them were subject to the rules of the defendants, and liable to be dismissed by the defen- dants if they broke them. Held, the defendants were liable (A). 1887, Levering v. St. Katharine's Dock Co., 3 T. L. E. 607 ; Doe v. -■S'^. Kaiharitie^s Dock Co. The company employ a person to land cargoes from ships in the docks at certain rates per ton — "labour rate," 6d. per hour, which is the rate at which he pays the men, and has advances of money daily to pay them. There was evidence that the men were not admitted to the docks without tickets issued by the company, and that sometimes the company got men dismissed, though this was through the intervention of the person afore- said. Held, that there was evidence for the jury that the person so employed was not an independent con- tractor. 1894, Oldjieldy. Furness, 58 J. P. 102. Injuries received through the negligence of S. who was under the control of J. J. was a man who worked himself, and he got other men to work for him, and if J. did not do the work as the defendants thought it ought to be done, they could tell him to go, without committing any breach of contract. The defendants had also called J. "their foreman." Held, there was evidence to go to the jury that J. was the servant of the defendants. (A) See also, 1882, Morrison v. Baird, 10 Sc. Sess. Cas., 4th Series, 271. Brought under Emjyhyers' Liability Act, 1880. 93 In favour of the DEFENDANT. Defences under 1884, Manning v. Adams, 32 W. E. 430. 1880 Act. The plaintiff, employed as foreman of a stevedore to unload a ship with the assistance of the crew, was injured by the negligence of one of the crew in the quasi-employment of the stevedore. Held, that the shipowners were not liable. 1892, Siveeney v. Duncan, 19 Sc. Sess. Gas., 4th Ser. 870. A firm of shipbuilders were in the practice of entering into contracts for the execution of certain pieces of work within their yard with squads of fitters. Each of these men employed labourers to assist in his part of the work, who were exclusively under his control and direction, and who were paid Id. an hour by the squad. "When the piece of work was finished, the squad divided the profit among themselves. The shipbuilder's fore- man inspected the work as it proceeded to see that the result was satisfactory, but did not interfere with the work. Held, that the shipbuilders were not liable to a labourer for injuries received through the negligence of a fitter. 2. Loan of Servant. — " When one person lends his servant to another for a particular employment, the servant, for anything done in that particular employ- ment, must be dealt with as the servant of the man to whom he is lent, although he remains the general servant of the person who lent him" : Lord Esher, M.R., citing Cockburn, C.J. («). " It makes no difference whether the servant is lent gratuitously or not " : Lord Esher, M.E., and Bowen L.J. (j). (j) Donovan v. Laing, [1893] 1 Q. B. 629 ; 63 L. J., Q. B. 25. 94 Common Law Defences to Actiom Defences The question is not merely whether the defendants 1880 Act li^ve given up the servant to perform the operation in question, but whether they have given up all right of interference with the operation, and unless the evidence is clear and uncontradicted, the case must go to the Cases. For the PLAINTIFF. 1886, iMoore v. Palmer, 2 T. L. E. 780. M. was the foreman of H., a master stevedore, who contracted to load a ship. H. hired a barge and donkey-engine from the defendant which the defendant sent to the loading in charge of N., whose wages were paid by the defendant. In the loading, the cargo in sacks was raised by the engine worked by N., who obeyed signals from M. By the negligence of N. a sack fell on M. and killed him. Held, there was evidence on which a jury might find that N. was the servant of the defendant. For the DEFENDANT. 1870, Murrai/ v. Currie, C C. P. 24; 40 L. J., C. P. 26. The defendant employed a stevedore to unload his vessel. The stevedore employed his own labourers, amongst whom was the plaintiff, and also one of the defendant's crew, named Davis, whom he paid, and over whom he had entire control, to assist them in unloading. The plaintiff, while engaged in the work, was injured through the negligence of Davis. Held, that the defendant was not responsible for the inj ury . {k) 1896, Cahalane v. KortJi Metropolitan Eailwatj and Canal Co., 12 T. L. R. 611. Brought under Employers' Liability Act, 1880. 95 1877, Rourhe v. The White Moss Colliery Co., 2 C. P. Defences Div. 205 ; 46 L. J, 0. P. 283. 188? Act. The defendants, having begun sinking a shaft in the colliery, for which purj)Ose they had fixed an engine near the mouth of the shaft, agreed with W. to do the sinking and excavating at a certain price per yard, W. to find all labour, the defendants to provide and place at the disposal of W. the necessary engine power and tackle, with an engineer to work the engine (who was employed and paid by the defendants), the engine and engineer to be under the control of W. The plaintiff, who was employed and paid by AV., while working at the bottom of the shaft was injured by the negligence of the engineer. Held, that though the engineer remained the general servant of the defendants, yet, being under the orders and control of W. at the time of the accident, he was acting as the servant of W., and not of defendants, who were therefore not liable for his negligence. Donovan Y. Laing, [1893] 1 Q. B. 629; 63 L. J., Q. B. 25. The defendants lent to a firm, who were engaged in loading a ship at their wharf, a crane with a man in charge of it. This man received directions from the £rm or their servants as to the working of the crane, and the defendants had no control in the matter. The plaintiff, who was a servant of the firm and was em- ployed by them to direct the working of the crane, was injured through being struck by it by reason of the negligence of the man in charge, and sued the defen- dants on the ground that the negligence was the act of their servant. Held, that, though the man in charge of the crane remained the general servant of the defen- dants, yet, as they had parted with the power of con- trolling him with regard to the matter on which he was engaged, they were not liable for his neghgence while 80 employed. ( 97 ) APPENDIX A. THE FATAL ACCIDENTS ACT, 1846 (LORD CAMPBELL'S ACT). 9 & 10 Vict. c. 93. An Act for compensating the Families of Persons killed hij Accidents. [26th August 1846.] Whereas no action at law is now maintainable against a person who by his wrongful act, neglect, or default may have caused the death of another person, and it is oftentimes right and expedient that the wrongdoer in such case should be answerable in damages for the injury so caused by him : Be it therefore enacted by An action the Queen's most excellent Majesty, by and with the jQa,in- advice and consent of the lords Spiritual and Temporal, tamable and Commons, in this present Parliament assembled, anv^nerson and by the authority of the same, that whensoever the causing death of a person shall be caused by wrongful act, .^ ^-^ neglect, or default, and the act, neglect, or defatdt is neglect, such as would (if death had not ensued) have entitled .:i °: , , , ^ _ _ _ ^ withstand - the party injured to maintain an action and recover ing the damages in respect thereof, then and in every such case ^^^^'^ o* , Til. t^® person the person who would have been liable if death had not injured. ensued shall be liable to an action for damages, not- withstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. K. F 98 Appendix A. 9 & 10 Vict. c. 93, s. 2. Action to be for the benefit of certain relations, and shall be brought by and in the name of execu- tor or adminis- trator of the deceased 2. And be it enacted, that every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased ; and in every such action the jury may give such damages as they may think proportioned to the injmy resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties in such shares as the jury by their verdict shall find and direct. — wife. For many years prior to her husband's death the plaintiff had been living in adultery with another man. The deceased occasionally gave her small sums of money. Held, there was no evidence of pecuniary loss (a). — husband. For many years before her death the vnie of plaintiff had lived apart from him. She was absolutely entitled to 7.000/. on the death of her mother in her lifetime. Held, no evidence of pecimiary loss ; the contingency of the plaintiff becoming entitled to an interest in the money through a suit for restitution of conjugal rights is too remote {b). — parent. — Grown-up children. Damages should be calcu- lated iu reference to a reasonable expectation of pecuniary benefit, as of right or otherwise, from the continuance of life. In an action by a father for injury lesulting from the death of his son, it aj^peared that the father was old and infirm ; that the son, who was young and earning good wages, assisted his father in some work for which the father was paid 3s. 6fZ. a week. The jiuy found a verdict for the plain- tiff for 75/. Held, that the action was maintainable (c). The pecuniary loss must arise from relationship and not from a contract. The deceased was a brickluyt'r, and received from the plaintiff, liis father, the wages of a skilled workman ; he was of great assistance to the plaintiff ; owing to the death of deceased, the plaintiff' could not take the contracts which {a) 1888, Stimpson v. Wood, 57 L. J., Q. B. 484. [b] 1885, Harrison v. Z. ^- N. W. It. Co.. 1 T. L. R. 519. {c) 1858, FrankUn v. S. E. R., 3 H. & N. 211. Lord CamphelPs Act, 1846. 99 lie had done dm-ing his son's lifetime. Held, no evidence of 9 & 10 pecuniary loss {d). Vict. c. 93, The father, whose son was killed, was fifty-nine years old, s. 2. nearly blind, and injm-ed in his leg and hands, and not so """ ^ able to work as he had been. Five or six years previously the father was out of work and the son had helped him, but he had had no money from the son since. Held, there was evidence for the juiy of pecuniary loss (e). As to the questions for the jury where the pecuniary loss arises from a covenant to pay an annuity to his mother by the deceased duiing their joint lives, see Rowley v. L. & N. W. R. Co., L. E., 8 Ex. 221. Young children. — Some tincture of rhubarb had been sent for to give a child, but, instead of tincture of rhubarb, laudanum was sent and taken by the child causing its death. The child was then living at home getting nothing, but pecuniaiily then a burden to its parents. The jury found a verdict for the plaintiff for 1 5/. Rule nisi granted to set it aside, not so much because the Court entertained doubt in the matter, but because the question was important and the judge had doubts at the trial (/). {It does 7wt appear that the matter luas ever proceeded with.) The plaintiff was the father of deceased (aged fourteen), who had earned 4.s. a week for about a year or two, but at the time of his death was without employment. Held, there was evidence of pecuniary loss [g). The plaintiff was a widow and mother of deceased (aged 14), who had never earned any wages, but whose capabilities were valued at 6cZ. per day. Held, there was evidence of pecuniary loss {h). It did not appear that the plaintiff had ever received from the deceased (aged 14) any benefits or services of pecuniary value. The boy had been educated for mercantile pursuits, and" in a few years, had he lived, his seivdces would have been worth a substantial salary. The plaintiff was a trades- man, and his position rendered him independent of any earnings his son might be competent to gain. Held, no evidence of pecuniary loss (?'). {d) 1875, Sykes v. N. E. £., 44 L. J., C. P. 191. (e) 1882, Hetlierington v. ^V. E. £., 9 Q. B. D. 160 ; 51 L. J., Q. B. 495. (/) 1857, Bramallv. Lees, 29 L. T. (0. S.) 111. (V) 1859, Buckworth v. Johnson, 4 H. & N. 653 ; 29 L. J.. Ex. 25. {h) 1865, Condon v. Great Southern ^ Western R. Co., 16 Ir. C. L. R. 415. (j) 1879, Bourke v. Cork % Macroom R. Co., 4 L. R., Ir. 682. f2 100 Appendix A. 9 & 10 The plaintiff was the father of deceased (aged 7), and the Vict. c. 93, only evidence of pecuniary loss was that she had been in the ^- ^- habit of rendering trifling household services. Held, no evidence of pecuniary loss {h). This Irish case does not seem consistent with the view that the verdict in Branall v. Lees, supra, was correct, and it would hardly be safe to rely on it in England. — child. A child en ventre sa mere is entitled to recover damages on the death of its father (/). A bastard can main- tain no action under the statute (?n). In the case of the death of the father of a young family with an ample estate, the question of fact for the jury is whether he might be reasonably expected to have advanced moneys out of his estate for their education and advancement in life {n ). — damages. The jury cannot take into consideration mental suffering or loss of society, but must give compensation "for pecuniaiy loss only " (o). It is not competent for the jury to award compensation for the expenses of the deceased's funeral or for family mourning (p). Damages under this Act are not to be estimated according to the value of the deceased's Life calculated by annuity tables, but the jury should give what they consider a fair compensa- tion (q). If the plaintiff is entitled to a policy of insurance against accidents on the life of the deceased, this must be deducted from the pecuniary loss. With regard to other policies on his life independently of accident, a deduction should be made for the premiums that would have been paid if the accident had not hap2)ened(r). (k) 1879, Holleran v. Bagnell, 6 L. R., Jr. 333. (I) 1871, The George and Richard, 24 L. T. (N. S.) 717. \m) 1863, Lickenson v. N. E. Ji., 2 H. & C. 735 ; 33 L. J., Ex. 91. («) 1861, Ppm V. G. iV. E., 2 F. & F. 619; 2 B. & S. 759; 4 B. & S. 396. (o) 1852, Blake v. Midland E. Co., 18 Q. B. 93 ; 21 L. J., Q. B. 233. ( p) 1858, Balton v. S. E. R., 4 C. B., N. S. 296 ; 27 L. J., Q. B. 227. {q) Armstrong v. S. E. R., 11 Jurist, 758. (r) 1857, Hicks V. Newport, Abcrgarennij S; Hereford R. Co., 4 B. & S. 403 (note). See also, 1874, Brndhnrn v. G. IF. i2., L. R., 10 Ex. 1 ; 44 L. J., Ex. 9 ; 1S88, The Grand Trunk Railway of Canada V. Jennings, 58 L. J., P. C. 1. Lord CamphelVs Act, 1846. 101 Where deceased accejited a sum of money in satisfaction of 9 & 10 all claims and causes of action he had against defendants : Vict. c. 93, Held, that his death did not create a fresh cause of action, and s. 2. that his widow could not recover damages (s). 3. Provided always, and be it enacted, that not more Only one than one action shall lie for and in respect of the same "^^^^i?^- subject-matter of complaint; and that every such action and to shall be commenced within twelve calendar months ^^ ^*^°l" menced after the death of such deceased person. within 12 4. And be it enacted, that in every such action the ^lonths. plaintiff on the record shall be required, together with f^l^j^l*™ the declaration, to deliver to the defendant or his a fuU attorney a full particular of the person or persons for P^-i'ticular whom and on whose behalf such action shall be brought, person for and of the nature of the claim in respect of which damages ^^^ shall be sought to be recovered. damages 6. And be it enacted, that the following words and ^''^ ^f . claimed, expressions are intended to have the meanings hereby „ ^, . . Uonstruc- assigned to them respectively, so far as such meanings tion of are not excluded by the context or by the nature of the ■^^** subject-matter ; that is to say, words denoting the singular number are to be understood to apply also to a plurality of persons or things; and words denoting the masculine gender are to be understood to apply also to persons of the feminine gender ; and the word " person " shall apply to bodies politic and corporate ; and the word " parent " shall include father and mother, and grandfather and grandmother, and stepfather and stepmother ; and the word " child " shall include son and daughter, and grandson and granddaughter, and stepson and stepdaughter. 6. And be it enacted, that this Act shall come into Act to operation from and immediately after the passing take effect ■^ , . . alter pass- thereof, and that nothing therein contained shall apply ing, and to that part of the United Kingdom called Scotland. not to ■^ ° apply to («) 1868, ReadM. G. E. R., L. R., 3 Q. B. 555. Scotland. 102 Apiimdix A. 7. And be it enacted, that this Act may be amended or repealed by any Act to be passed in this session of Parliament. Act may be amen- ded. &c. LORD CAMPBELL'S ACT AMEND- MENT ACT. 27 & 28 Vict. c. 95. An Ad to amend tlie Ad Ninth and Tenth Vidoria, Chapter Ninety-three^ for compensating the Families of Persons killed by Accident. [29th July 1864.] Whekeas by an Act passed in the session of Parliament holden in the ninth and tenth years of her Majesty's 9 & 10 reign, intituled " An Act for compensating the Families Vict. c. 93 qI Persons killed by Accident," it is amongst other things provided, that every such action as therein men- tioned shall be for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused as therein mentioned, and shall be brought by and in the name of the executor or adminis- trator of the person deceased : And whereas it may happen by reason of the inability or default of any person to obtain probate of the will or letters of adminis- tration of the personal estate and effects of the person deceased, or by reason of the unwillingness or neglect of the executor or administrator of the person deceased to bring such action as aforesaid, that the person or persons entitled to the benefit of the said Act may be deprived thereof ; and it is expedient to amend and Lord CamphelVs Act Amendment Act, 1864. 103 extend the said Act as hereinafter mentioned : Be it 27 & 28^ therefore enacted by the Queen'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 : 1. If and so often as it shall happen at any time or Where no times hereafter in any of the cases intended and provided ?;°*^*^^ui. for by the said Act that there shall be no executor or within six administrator of the person deceased, or that there being months by ■^ . . ' _ . ° executor such executor or administrator no such action as in the of person said Act mentioned shall within six calendar mouths ^^^^^> then after the death of such deceased person as therein men- action tioned have been brought by and in the name of his P^^^ ^® ■, . . , -, . ■, brought or her executor or administrator, then and m every such by persons case such action may be brought by and in the name or ^.^'J!'^! names of all or any of the persons (if more than one) terested for whose benefit such action would have been, if it had ^^ result been brought by and in the name of such executor or administrator ; and every action so to be brought shall be for the benefit of the same person or persons, and shall be subject to the same regulations and procedure as nearly as may be, as if it were brought by and in the name of such executor or administrator. 2. And whereas by the second section of the said Money Act it is provided that the jury may give such damages cvmrrmav as they may think proportioned to the injury resulting be paid in from such death to the parties respectively for whom ^'^^n*"^' and whose benefit such action shall be brought, and the regnrd to amount so recovered, after deducting the costs not ^t^ . ^" ° sion into recovered from the defendant, shall be divided between shares. the before-mentioned parties in such shares as the jury shall by their verdict direct : Be it enacted and declared, that it shall be sufficient, if the defendant is advised to pay money into Court, that he pay it as a compensation 104 Appendix A. 27&28 Vict. c. 95, 8. 2. If not accepted, defendant entitled to verdict on the issue. This and recited Act to be read as one. in one sum to all persons entitled under the said Act for liis wrongful act, neglect, or default, without specifying the shares into which it is to be divided by the jury ; and if the said sum be not accepted, and an issue is taken by the plaintiff as to its sufficiency, and the jury shall think the same sufficient, the defendant shall be entitled to the verdict upon that issue. 3. This Act and the said Act shall be read together as one Act. ( 105 ) APPENDIX B. THE FACTORY AND WORKSHOP ACT, 1878. 41 & 42 Vict. c. 16. FOUETH SCHEDULE. Sects. 93, 9d. List of Factories and "Workshops. Part One. Non-textile Factories. (1) "Print works," that is to say, any premises in Print which, any persons are employed to print figures, '"^oi^'^s. patterns, or designs upon any cotton, linen, woollen, worsted, or silken yarn, or upon any woven or felted fabric not being paper ; (2) "Bleaching and dyeing works," that is to say, any Eleaching premises in which the processes of bleaching, and dye- beetling, dyeing, calendering, finishing, hooking, ° lapping and making up and packing any yarn or cloth of any material, or the dressing or finishing of lace, or any one or more of such pro- cesses, or any process incidental thereto, are or is carried on ; (3) "Earthenware works," that is to say, any place Earthen- in which persons work for hire in making, or ^^^^ assisting in making, finishing, or assisting in finishing, earthenware of any description, except bricks and tiles not being ornamental tiles ; (4) " Lucifer-match works," that is to say, any place Lucifer- in which persons work for hire in making lucifer- ™atch ^ ° works. F 5 10( Appendix B. 41 & 42 Vict. c. 16, Sched. 4. Percus- sion-cap works. Cartridge works. Paper- staining works. Fustian - cutting works. Blast furnaces. Copper mills. Iron mills. Fouudi-ies. matches or in mixing the chemical materials for making them, or in any process incidental to making lucifer-matches, except the cutting of the wood; (5) " Percussion-cap works," that is to say, any place in which persons work for hire in making percus- sion caps, or in mixing or storing the chemical materials for making them, or in any process in- cidental to making percussion caps ; (6) "Cartridge works," that is to say, any place in which persons work for hire in making cartridges, or in any process incidental to making cartridges, except the manufacture of the paper or other material that is used in making the cases of the cartridges ; (7) " Paper-staining works," that is to say, any place in which persons work for hire in printing a pattern in colours upon sheets of paper either by blocks appKed by hand, or by rollers worked by steam, water, or other mechanical power ; (8) "Fustian-cutting works," that is to say, an}'- place in which persons work for hire in fustian cutting ; (9) "Blast furnaces," that is to say, any blast furnace or other furnace or premises in or on which the process of smelting or otherwise obtaining any metal from the ores is carried on ; (10) " Copper mills " ; (11) "Iron mills," that is to say, any mill, forge, or other premises in or on which any process is carried on for converting iron into malleable iron, steel, or tin plate, or for otherwise making or con- verting steel ; (12) " Foundries," that is to say, iron foimdries, copper foundries, brass foundries, and other promises or places in which the process of founding or casting any metal is carried on, except any jiremiscs or The Factory and Workshop Act, 1878. 107 places in which, such process is carried on by not 41 & 42 . . Vict c 16 more than five persons and as subsidiary to the ^q^^^ 4 ' repair or completion of some other work ; (13) "Metal and india-rubber works," that is to say, Metal and any premises in which steam, water, or other ^^vf' mechanical power is used for moving machinery works, employed in the manufacture of machinery or in the manufacture of any article of metal not being machinery, or in the manufacture of india-rubber or gutta-percha, or of articles made wholly or partially of india-rubber or gutta-percha ; (14) "Paper mills," that is to say, any premises in Paper which the manufacture of paper is carried on ; mills. (15) "Glass works," that is to say, any premises in Glass which the manufacture of glass is carried on ; works. (16) "Tobacco factories," that is to say, any premises Tobacco in which the manufacture of tobacco is carried on ; ° (17) " Letter-press printing works," that is to say, any Letter- premises in which the process of letterpress printing ppf^tjjjg. is carried on ; (18) " Bookbinding works," that is to say, any premises Book- in which the process of bookbinding is carried on ; '^™'^|i'^^ ^ ° ' works. (19) "Flax scutch mills." -p^^^ scutch mills. Part Two. Non-Textile Factories and Workshops. (20) " Hat works," that is to say, any premises in which Hat the manufacture of hats or any process incidental ^°^ ®' to their maniifacture is carried on ; (21) "Pope works," that is to say, any premises being Rope a ropery, rope-walk, or rope work in which is ""'o^'^s. carried on the laying or twisting or other process of preparing or finishing the lines, twines, cords, or ropes, and in which machinery moved by steam. 108 Appendix B. 41 & 42 Vict. c. 16, Sched. 4. Bake- houses. Lace ware- houses. Ship- building yards. Quarries. Pit -banks. 35 & 36 Vict. c. 76. 35 & 3G Vict. c. 77. water, or other mechanical power is not used for drawing or spinning the fibres of flax, hemp, jute, or tow, and which has no internal communication with any buildings or premises joining or forming part of a textile factory, except such communica- tion as is necessary for the transmission of power ; (22) " Bakehouses," that is to say, any places in which are baked bread, biscuits, or confectionery from the baking or selling of which a profit is derived ; (23) " Lace warehouses," that is to say, any premises, room, or place not included in bleaching and dyeing works as hereinbefore defined, in which persons are employed upon any manufacturing process or handicraft in relation to lace, subsequent to the making of lace upon a lace machine moved by steam, water, or other mechanical power ; (24) " Shipbuilding yards," that is to say, any premises in which any ships, boats, or vessels, used in navi- gation are made, finished, or repaired ; (25) " Quarries," that is to say, any place not being a mine, in which persons work in getting slate, stone, coprolites, or other minerals ; (26) " Pit-banks," that is to say, any place above ground adjacent to a shaft of a mine, in which place the employment of women is not regulated by the Coal Mines Eegulation Act, 1872, or the Metalliferous Mines Regulation Act, 1872, whether such place does or does not form part of the mine within the meaning of those Acts. ( 109 ) ♦ APPENDIX C. THE DOCTEINE OF RES IPSA LOQUITUR. The question how far an accident is itself evidence of negligence frequently arises under tlie Employers' Liability Act, 1880, and is of great importance. The answer to the question depends on the nature of the accident. "In some cases, res ipsa loquitur, the accident may be of such a nature that negligence may be presumed from the mere occurrence of it. But when the balance is even, the onus is on the party who relies on the negligence of the other to turn the scale " : Lord Esher, M. E. (a), quoting Lord Denman, speaking generally. The mere happening of an accident is not sufficient evidence of negligence to be left to the jury ; but the plaintiff must give some affirmative evidence of negli- gence on the part of the defendant (b). But where the thing is shown to be under the manage- ment of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care (c). The following are the principal cases : — No Evidence of Negligence. 1860, Cotto7i V. Wood, 8 C. B., N. S. 568 ; 29 L. J., C. P. 333. In an action for negligent driving, the judge will not be justified in leaving the case to the jury when the plaintiff's evidence is equally consistent with the absence as with the existence of negligence in the defendant. («) 1872, Hanson v. Lancashire ^ Yorkshire R. Co., 20 W. R. 297. {b) 1862, Sammack v. White, 31 L. J., C. P. 129. (c) 1865, Scott V. London Dock Co., 3 H. & C. 596 ; 34 L. J., Ex. 220. 110 Appendix C. 1862, Hammack v. White, 31 L. J., C. P. 129. The mere liappening of au accident is not sufl&cient evidence of negligence to be left to the juiy ; but the plaintiff must give some affirmative evidence of negli- gence on the part of the defendant. 1866. Higc/s v. Maynard, 14 L. T., N. S. 332. The plaintiff was employed by a firm occupying pre- mises separated from the premises of the defendant by a passage. In this passage the plaintiff was at his usual work, when some glass fell into his eye from an upper window in the defendant's premises. The evidence proved that the window was broken by a ladder from the inside falling upon it, but failed to prove who caused its fall, or that it was caused by the defendant. The plaintiff was non-suited. Held, that the non-suit was right, as there was nothing to connect the defendant with the accident. 1869, Moffatt V. Bateman, L. E., 3 P. C. 115. Action for negligence by the defendant in conveying the plaintiff, who was in his service, to perform for him certain work. The defendant drove, and while on the road the ringbolt of the carriage broke, the horses bolted, and the plaintiff was injured. Held, no evi- dence of negligence in defendant. 1869, Welfare v. L. S^^ B. R. Co., L. E., 4 Q. B. 693; 33 L. J., Q. B. 241. In an action for negligence against a railway com- pany, the plaintiff proved that he went to their station for the purpose of travelling by their railway, and made some inquiries respecting the departure of trains, and was directed b}' a porter of the defendants to look at a time-table suspended on a wall under a portico of the station. While there, a plank and a roll of zinc fell through a hole in the roof upon the plaintiff and injured him, and at the same time a man was seen on the roof of the portico. The judge non- suited the plaintiff. Held, that the non-suit was right. Cockburn, C.J., said that it was tlie universal practice that in a great city persons do not employ their own The Doctrine of Res ipsa Loquitur. Ill servants to do repairs to the roofs of their houses ; they employ a builder whose particular business it is to do it. Hence, there was nothing to connect the accident with the defendants. 1880, Manzoni v. Douglas, 6 Q. B. D. 145 ; 50 L. J., Q. B. 289. A horse drawing a brougham suddenly and without any explainable cause bolted, and, notwithstanding the utmost efforts of the driver to control him, swerved on to the footway and injured the plaintiff. Held, no evidence of negligence to go to the jury. 1884, Macfarlane\. Thompson, 12 Sc. Sess. Cas. 4th Ser. 232. Where the cause of the accident is not ascertained, the fact that it has taken place will not raise a pre- sumption that it was caused by a defect in the machinery or plant for which the master was responsible. Evidence of Negligence. 1850, SMnner v. L. B. §^ S. C. R. Co., 5 Ex. 787. A train ran against another train standing in a station. Held, that the mere fact of the accident having occurred •was primd/acie evidence of neghgence on the part of the defendants. See also Carpue v. L. ^' B. R. Co., 5 Q. B. 751. 1863, G. TV. R. V. Braid, 1 Moo. P. C, N. S. 101. When an injury is alleged to have arisen from the improper construction or maintenance of a railway, the fact of one of its embankments giving way will amount to prima facie evidence of such insufficiency ; and this evidence may become conclusive, in the absence of any proof on the part of the company to rebut it. 1863, Byrne v. Boadle, 2 H. & C. 722 ; 33 L. J., Ex. 13. The plaintiff was walking in a public street, past the defendant's shop, when a barrel of flour fell upon him from a window above the shop, and seriously injured him. Held, sufficient prima facie evidence of negligence for the jury to cast on the defendant the onus of proving that the accident was not caused by his negligence. 112 Appendix C. 1865, Scott V. London Dock Co., 3 H. & C. 596 ; 34 L. J., Ex. 220. Where the thing is shown to be under the manage- ment of the defendant or liis servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care. 1871, Kearney Y. L. B. Sf S. C. R. Co., L. E., 6 Q. B. 759; 40 L. J., Q. B. 285. A brick fell from a bridge and injured the plaintiff, a train having passed just previously. On examination, other bricks were found to have fallen out. Held, sufficient evidence of negligence to go to the jury. 1882, Walker v. Olsen, 9 Sc. Sess. Cas. 4th Ser. 946. A stevedore, while engaged in unloading a vessel, was injured by the tackling, with which the cargo was being raised, falling upon him. The tackling was sup- plied by the owner of the vessel. It was impossible to say exactly to what cause the falling of the tackling was attributable. Held, that the accident, along with the fact that there was no satisfactory explanation, was evidence that the tackling was defective, and the owner was liable. Of the above. Welfare v. L. &; B. R. Co. has always been considered an extreme case, but it can be defended on the ground mentioned by Cockburn, C.J. Although, as we have seen, the happening of an accident may, in some cases, he primd facie evidence of negligence, it is not conclusive evidence thereof, and, notwithstanding such primd, facie evidence, it is open to a jury to find a verdict for the defendants ( God, act of, 13, 83. Harbour, construction, alteration, or repair of. Workmen's Compensation ji^ct applies to, 31. Incapacity of Workman. See Disablement. Inevitable Accident. See Accident. Insurers of Employer, Workmen's Compensation Act, 4, 25. Invf;stment of Compensation, Workmen's Compensation Act, 38. Ireland, 40, 45, (53. Judgment, under Employers' Liability Act where there are several plaintiffs, 75. Jurisdiction, of county courts under Workmen's Compensation Act, 43. Jury, notice of demand for, under Employers' Liability Act, 72. Ejxg's Enemies, act of, 83. Laundry, worked by steam, water, or other mechanical power. Workmen's Compensation Act, applies to, 28. Legal Personal Eepresentative of Workman, 32, 57. Licensee, bare, 57, 76, 85. Limitation of Time, for notice of accident under Workmen's Compensation Act, 4, 18. Employers' Liability Act, 61, 64. for claim for compensation under Workmen's Compensation Act, 4, 18. for commencing action under Employers' Liability Act, 61. of time for which workman must bo disabled under Work- men's Compensation Act, 13. Locomotive Engine, meaning of, 57. INDEX. 121 Machinery, Workmen's Compensation Act, driven by steam, water or other mechanical power, 27. to which Factory Acts apply, 28. used for construction, repair, or demolition of buildings, 27. See Engineering Work. Employer's Liability Act, dangerous, 50, 59. defect in condition of, 46 et seq. latent defect in, 83. newest and safest, when necessary to obtain, 49. not belonging to employer, 49. out of order, 48. unfit for purpose to which applied, 48. Medical Pkactitioner, appointed for purposes of Workmen's Compensation Act, 39, 44. examination of workmen by, 37, 39. Mines, definition of, under Workmen's Compensation Act, 30. Workmen's Compensation Act applies to, 27. Misconduct, accident attributable to serious and wilful mis- conduct of workman, 3, 15. Negligence, contributory. See Contributory Negligence, Employers' Liability Act, dutj' of workman to give notice of, 59, 60. failure to prove, 5, 109. how far accident itself is evidence of, 109 et sef^. of employer, 58. onus of proof, 59. of person in the exercise of superintendence, 51. of person in the service of the employer who has super- intendence, 51. personal, of employer under Workmen's Compensation Act, 3, 14. Notice, of accident under Workmen's Compensation Act, 4, 18. of demand for jury, 72. of injury under Employers' Liability Act, 61, 64. Option, to workman under Workmen's Compensation Act, in case of personal negligence or wilful default of employer, 3, 14. where proceedings have been misconceived, 3, 17. to proceed against his employer or a stranger, 26. 122 INDEX. Orders, Employers' Liability Act, contrary to written rules, 53. need not be verbal, 53. or directions to -wliicli workman is bound to conform, 52 et seq. Particulars of demand under Employers' Liability Act, 71. Pecuniary Loss under Lord Campbell's Act, 97 et seq. Penalty, when deducted fi'om compensation under Employers' Lia- bility Act, 62. Workmen's Compensation Act, 18. Plaintiffs, judgment where there are several, in action under Employers' Liability Act, 75. Plant. See Machinery. Employers' Liability Act, defect in condition of, 46 et seq, duty to examine, 58. erected by a contractor, 58. horse is, 51. Post Office Savings Bank, investment of compensation in, 38. Quarry, definition of, 30, 108. Workmen's Comi^ensation Act aj^plies to, 3, 27. Quay to which Factory Acts applj', 28. Eailroad, construction, alteration, or repair of, is an en- gineering work, 31. Eailway, definition of, 12. light, Workmen's Compensation Act applies to, 28. meaning of, 27. person who has charge of signal, points, engine, or train upon, 06. Workmen's Compensation Act applies to, 3, 27. Rates and taxes paid by emi)loyer, Workmen's Compensation Act, 37. Registrar of County Court, investment of compensation by, 38. of Friendly Societies, certificate of, 4, 20. apjili cation to, 20, 113. Bent paid by employer. Workmen's Compensation Act, 37. Repair of building, when Workmen's Compensation Act applies to, 3, 27. INDEX. 123 Ees ipsa loquitur, 109 et seq. Eespondeat superior, 5, 77, 88 et seq, ElVER near shii^building yard, 33. EULES of court, 24, 26. of employer, Employers' Liability Act, act or omission done or made in obedience to, 54, 59 approved by Board of Trade, 59. impropriety or defect in, 59. orders contoary to, 53. County Court, 71. Savings Bank. See Post Office Savings Bank. Scaffolding, building constructed or repaired by means of, workmen's Compensation Act ajiplies to, 27. Scheme of compensation under Workmen's Compensation Act, 4, 20. ai^plication for, 20, 113. Scope of employment. See Employment. Scotland, 33, 40, 44, 63. Seaman, Employers' Liability Act does not apply to, 67. What is a, 70. Servant, loan of, 93 et seq, wilful act of, wben employer liable for, 15, 89. Sewer, construction, alteration, or repair of. Workmen's Com- pensation Act applies to, 31. Shipbuilding Yard, 33, 108. Smart Money, deduction from compensation of, under Work- men's Compensation Act, 37. Solicitors, power as to costs under Workmen's Compensation Act, 44. rules of court to provide for appearance of, under Workmen's Compensation Act, 42. Stranger, Workmen's Compensation Act, employer entitled to be indemnified by, 26. option to workman to proceed against, 26. when liable to indemnify employer, 26. position of workman compared with that of, 1. 124 INDEX. SUB-COXTRACTOR, under Workmen's Compensation Act, 4, 21. Employers' liiability Act, 91. See C'ohiractur. Summons, service of, under Employers' Liability Act, 71. Superannuation Act, 1887. ..34. Superintendence, Employers' Liability Act, negligence of person in the service of employer who has, 51. in the exercise of, 51. person who has, meaning of, 66. Table oe Defences, 9. Time, for commencing action under Employers' Liability Act, 61. for commencement of Workmen's Compensation Act, 35. for which workman must be disabled under Workmen's Compensation Act, 13. limitation of, for notice of accident under Workmen's Com- pensation Act, 4, 18. injury under Employers' Liability Act, 61, 64. for claim for compensation under Workmen's Compensation Act, 4, IS. Train, 57. Tramways, 28. Trespasser, 5, 7, 76, 85. Undertakers, definition of, under Workmen's Compensation Act, 31. Volenti non fit injuria, 2, 5, 9, 76, 77 et se(]. Warehouse to which Factory Acts apply, 28. Ways, defect in condition of, under Employers' Liability Act, 46. meaning of, 46. Weekly Payments, under Workmen's Compensation Act, cannot be assigned or charged, 40. how e.stiiiiatod, 36. redemi)tiou by payment of lump sum, 40. review of, 39. INDEX. 125 Wharf, to which Factory Acts apply, 28. Wilful Act of servant, when employer liable for, 15, 89. Witnesses, power under Workmen's Compensation Act to procure attendance of, 42. Workman, accident attributable to serious and wilful misconduct of, 3, 15. death of, compensation under Workmen's Compensation Act, 11, 35. death of, damages under Lord Campbell's Act, 97. Employers' Liability Act, 11, 57, 97. incapacitated, compensation under Workmen's Compensa- tion Act, 11, 36. duty under Employers' Liability Act to give information as to defect, &c., 59, 60. examination of, by medical practitioner, under Workmen's Compensation Act, 37, 39. loan of, 93 et seq. meaning of, under Workmen's Compensation Act, 32. under Employers' Liability Act, 66 et seq. must proceed generally under Workmen's Compensation Act, 14. option to, under Workmen's Compensation Act, in case of personal negligence or wilful default of employer, 3, 14. option to, under Workmen's Compensation Act, where pro- ceedings have been misconceived, 17. position of, at common law, as compax'ed to stranger, 1 et seq. 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