of v (California ilaus a or ec be la THE WORKMEN'S COMPENSATION ACT, 1906 THE WORKMEN'S COMPENSATION ACT, 1906 BY V. R. ARONSON, M.A., B.C.L. OF THE INNER TEMPLE AND MIDLAND CIRCUIT, BARBISTER-AT-LAW T. FISHEE UNWIN LONDON LEIPSIC ADELPHI TERRACE INSELSTRASSE 20 1909 reserved.) PREFACE THE object of this book is to present a complete view of the law of Workmen's Compensation as contained in the Act of 1906, and in the decisions of the English and Scotch courts both prior and subsequent to that Act. Eighteen months have now elapsed since the Act came into force, and during that time many cases have been decided by the Court of Appeal. These cases deal mainly with three points, each of them a fruitful subject of con- troversy : (i) the definition of " workman " ; (ii) the definition of " earnings " ; and (iii) the method of calcu- lating " average weekly earnings " where the period of employment has been too short or irregular for a true average to be taken. As to the definition of " workman," the dispute has ranged round the meaning of the word "casual"; for it is enacted that " workman " does not include a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business. Obviously some very fine distinctions have to be drawn. The employment of a charwoman who cleans a house daily in pursuance of a contract is clearly not of a casual nature ; equally clearly the employment is of a casual nature if the charwoman has merely cleaned the house on several occasions in the past and may or may not be called on to do so in the future. Between these two positions lie very many difficult cases. The question was before the Court of Appeal in Hill v. Begg ([1908] 2 KB. 802), '192570 6 THE WORKMEN'S COMPENSATION ACT, 1906 where it was held that the employment was of a casual nature where a window cleaner came to a house from time to time to clean windows, but there was no contract of either permanent or periodic employment between the parties. Just the other side of the line is the case of Dewhurst v. Mather ([1908] 2 KB. 754). There the applicant for compensation was a charwoman who was employed for a considerable period on Fridays and alternate Tuesdays. She came regularly on those days without special instructions. The Court held that the employment was not of a casual nature and awarded compensation. It may safely be predicted that many more cases will arise before this question is finally settled. The definition of " earnings " has also been much discussed. A difficult point arises where part of the "earnings" consist of board and lodging given to the workman by his employer. Is this to be calculated on the basis of what the board costs the employer, what it would cost the workman to procure the same amount of comfort for himself, or what the workman would spend on his board if living away from his work ? This point has been considered by the Court of Appeal in Rosengvist v. Bowring ([1908] 2 KB. 109), and (indirectly) in Dothie v. Macandrew ([1908] 1 KB. 803). The result of these cases may be summarised thus : the test of the money value of the board provided by the employer is not what the work- man saves by the arrangement, but what the reasonable style of board provided by the employer would have cost the workman if he had had to purchase it himself ; sub- ject, however, to this qualification, that if a very luxurious allowance be made for the purposes of advertisement and not for the benefit of the workman, that would be a factor to be taken into consideration. Another point on " earnings " occurs in the case where gratuities form a large part of the workman's receipts. In Penn v. Spiers ([1908] 1 KB. 766) the Court of Appeal held that tips received by a waiter form part PREFACE 7 of his earnings ; but earnings do not include tips which are (a) illicit, or (5) encourage a breach of duty by the workman to his employer, or (c) are casual and sporadic and trivial in amount. Finally, considerable difficulty has arisen in interpret- ing paragraph 2 of the First Schedule, which deals with the manner of computing " average weekly earnings." This paragraph provides that where a true average cannot be taken, owing to the short duration of the employment, regard may be had to the earnings of other workmen in the same grade and in the service of the same employer ; or, if there are no such persons, to the earnings of work- men in the same grade employed in the same class of employment in the same district. This paragraph is somewhat vague ; and it is fortunate for the public that its provisions have been exhaustively considered at an early stage in the history of the Act, in the case of Perry v. Wright ([1908] 1 KB. 441). It was there decided that average weekly earnings must be computed in such manner as is best calculated to give the rate per week at which the workman was being remunerated. But where it is impossible to compute the arbitrator must estimate them as well as he can, and in doing so may have regard to analogous cases. The meaning of the word "grade" was also considered, and it was pointed out that it does not involve or depend upon individual characteristics. Each grade must have good and bad members ; and the arbitrator has first to decide to what grade the workman belongs, and then to find the average weekly earnings of that grade. Having done so, he must determine whether the qualities of the individual work- man entitle him to a wage above or below such average. This book has been arranged in a manner which, it is hoped, will make it useful to both lawyers and lay- men. There is a short introduction dealing with the state of the law prior to 1906. Then follows a chapter in which the present Act is summarised and the various subjects placed in a logical order. This should enable 8 THE WORKMEN'S COMPENSATION ACT, 1906 those unacquainted with the Act to look up quickly any point on which they require information. The third and main portion of the book consists of a detailed examination of the Act taken section by section. It is believed that in this part are collected all the reported English decisions up to the end of 1908, and the great bulk of the Scotch ones. There are also a few Irish cases which decide points not yet dealt with in England. In some instances it has been necessary to explain somewhat fully the provisions of the Act of 1897, in order that the changes brought about by the Act of 1906 may be properly appreciated (see Schedule L, paragraph 2). In the appendices are set out all the numerous rules and orders made under the Act, the county court scales of fees, the Employer's Liability Act, 1880, and the repealed "Workmen's Compensation Acts, 1897 and 1900. It may not be out of place to say a word about the far- reaching changes in the law effected by this Act, and about the points to which criticism has been mainly directed. In the first place it has been urged that, as a result of the Act, aged and infirm workmen will find it increasingly difficult to obtain employment. It may well be that the Act is used as a handle by employers who do not desire to employ aged workmen; but it is usual to insure against the liability to pay compensation, and the difficulty can then in most cases be met by taking the increased premium into account in fixing the wages. Secondly, it is said that domestic servants should not have been included in the Act. A poor man who has neglected to insure may be ruined by an accident to his servant. In considering this point it is necessary to dis- tinguish between the justice of the protection and the incidence of the burden. There is no reason why a domestic servant should not be afforded the same pro- tection as other workmen, nor why his employer should not be under the same liability and subject to the same risks as other employers. The only distinction, in fact, is PREFACE 9 that the employer of a domestic servant is supposed to be a person less likely to insure. Therefore, the only deduc- tion from this argument is that a compulsory system of insurance against liabilities under this Act should be instituted. It may readily be admitted that such a system would be an improvement on the existing law ; and possibly in time it may be adopted. A third contention is that it is wrong to include illegiti- mate children in the class of dependants. It is said that it is now open to any woman to swear falsely that a deceased workman was the father of her child. It is, no doubt, true that in all legal proceedings he who com- mits perjury may reap an unjust reward ; but the danger is no greater in proceedings by dependants under this Act than in any other litigation in which an important witness is dead. It is also urged that it is against public policy to include illegitimate children ; but surely no man would be encouraged in immorality by the knowledge that his children would benefit in the improbable event of his death by accident. There are some other points in which the policy of this Act is harder to defend. The first of these is the pro- vision which enacts that, in the event of the workman's death or serious and permanent disablement, compensa- tion must be paid even if the injury is due to his serious and wilful misconduct. The accident may be due to the workman's deliberate disobedience to orders, or to his drunkenness, or to other causes beyond the employer's control. The risk of such an accident is not due to the nature of the employment, nor is it possible for the employer to guard against it, and there is therefore no reason why he should be liable to pay compensation in such a case. Again, the provision which relieves the parties from paying any court fees prior to the award seems to work badly. It gives a stimulus to speculative proceedings, and also places applicants for compensation in a better position than other county court litigants, although it is 10 THE WORKMEN'S COMPENSATION ACT, 1906 believed that, as a whole, they are not a poorer class Workmen's claims are frequently fought by labour unions and similar bodies ; and it is submitted that in such cases at least the ordinary fees should be paid. Lastly, some sections of the Act are extremely hard to interpret. In particular is this the case with Section 4, dealing with sub-contracting (see the submission at p. 113 post). It is to be regretted that an Act which supersedes the notoriously ill-drafted Act of 1897 should not have been more clearly worded. As against these deficiencies must be set the fact that a protection which has been found to work well in a few selected industries has now been extended to almost all workmen. That protection is founded on the principle, of which most people approve, that the industry itself should bear the loss caused by catastrophes which are due to the nature of the employment, and over which the workmen have in the main no control. Granted this principle, it must be admitted that the Act has done much to reduce the law on the subject to an intelligible system. V. R. A. GOLDSMITH BUILDING, TEMPLE. December. 1908. CONTENTS PAGE TABLE OF CASES . . i THE LAW PRIOR TO 1906 . ... 13 SUMMARY OF THE ACT . . 19 THE WORKMEN'S COMPENSATION ACT, 1906: Section I . . . . .47 Section II . . . . .91 Section III ... 104 Section IV . . . . . .112 Section V . . . . .123 Section VI 128 Section VII . . . . . .133 Section VIII 143 Section IX . . . . .156 Section X ..... 158 Section XI . . . . .160 Section XII . . . . . .164 Section XIII . . . . . .165 Section XIV 186 Section XV . . . . . .187 Sections XVI and XVII . . . .190 Schedule I . . . . . .191 Schedule II 235 Schedule III . . . . . .267 APPENDIX A ...... 271 The Workmen's Compensation Eules, 1907. APPENDIX B ...... 327 The Workmen's Compensation Forms, 1907. APPENDIX C . 417 Treasury Order regulating Fees in County Courts in Arbitrations under the Workmen's Compensation Act. 11 12 CONTENTS PAGE APPENDIX D . 421 Regulations made by the Chief Registrar of Friendly Societies under Sections 3 and 15 of the Workmen's Compensation Act. APPENDIX E . 434 Regulations made by the Secretary of State as to the Duties and Fees of Certifying Surgeons, and as to References to Medical Referees under Section 8 of the Workmen's Compensation Act. APPENDIX F . 453 Regulations made by the Secretary of State as to Examinations of a Workman by a Medical Practi- tioner provided and paid by the Employer under the Provisions of the First Schedule of the Workmen's Compensation Act. APPENDIX G . 454 Regulations made by the Secretary of State and the Treasury as to the Duties of Medical Referees under the Provisions of the First and Second Schedules of the Workmen's Compensation Act. APPENDIX H ...... 469 Regulations made by the Secretary of State under Section 12 of the Workmen's Compensation Act as to Returns to be furnished each year by Employers in certain Industries. APPENDIX I . . . . . . . 476 Order of the Secretary of State extending the Pro- visions of the Workmen's Compensation Act to certain Industrial Diseases. APPENDIX J ...... 479 The Workmen's Compensation Rules, 1908 (being an Amendment of certain of the Rules of June 1, 1907). APPENDIX K ...... 492 The County Court Scale of Costs. APPENDIX L ...... 519 The Workmen's Compensation Act, 1897. APPENDIX M ...... 532 The Workmen's Compensation Act, 1900. APPENDIX N ..... . 533 The Employers' Liability Act, 1880. INDEX . 537 TABLE OF CASES PAGE Abram v. Southern [1903] A.C. 306 ... 203 Allan v. Spowart, 8 F. 811 . . . . . 228 Anderson v. Baird, 5 F. 373 .... 197 Andrew v. Failsworth Industrial Society [1904] 2 K.B. 32 67 Andrews v. Andrews and Hears [1908] 2 K.B. 567 . 122 Anslow v. Cannock Chase, The Times, Dec. 12, 1908 . 206 Applehy v. Horseley [1899] 2 Q.B. 521 . . 202 Armitage v. Lancashire and Yorkshire Railway Co. [1902] 2 KB. 178 . . . . .66 Arroll v. Kelly, 7 F. 906 180 Ashworth v. Stanwix, 30 L.J.Q.B. 183 . . 13 Atkinson v. Lumb [1903] 1 K.B. 861 ... 122 Ayres v. Buckeridge [1902] 1 K.B. 57 ... 200 Back v. Dick, Kerr & Co. [1906] A.C. 325 . . . 121 Bagnall v. Levinstein [1907] 1 K.B. 531 . . . 175 Bailey v. Plant [1901] 1 K.B. 31 . . . 88, 252 Bailey v. Plant, No. 2, 17 T.L.E. 449 ... 251 Baird v. Birsztan, 8 F. 438 . . . 182, 195 Baird v. Higginbotham, 3 F. 673 . . . .86 Baird v. Kane, 7 F. 461 . . . 213, 221 Bargewell v. Daniel, 98 L.T. 257 . . . . 170 Barrett v. North British Railway, 1 F. 1139 . . 180 Bartlett v. Tutton & Sons [1902] 1 K.B. 72 . 200, 204 Bartonshill Coal Co. v. Eeid, 3 Macq. 266 . . . 14 Beath and Keay v. Ness, 6 F. 168 . . . . 227 Beckley v. Scott & Co. [1902] 2 I.E. 504 . . . 73 Bennett v. Wordie, 1 F. 855 . . . .97 Benson v. Lancashire and Yorkshire Eailway Co. [1904] 1 K.B. 242 ..... 55, 58 Bevan v. Crawshay [1902] 1 K.B. 25 ... 195 la i ii TABLE OF CASES PAGE Binning v. Easton, 8 F. 407 . 254 Bist v. London and South Western Eailway [1907] A.C. 209 .80 Blake v. Midland Eailway Co. [1904] 1 K.B. 503 . 252, 253 Blovelt v. Sawyer [1904] 1 K.B. 271 . . 60 Boardman v. Scott [1902] 1 K.B. 43 . 52 Boase Spinning Co. v. M'Avan, 38 S.L.E. 772 . . 224 Bound v. Lawrence [1892] 1 Q.B. 226 . . 16 Bradbury v. Badworth Coal and Iron Co., The Times, March 17, 1900 . . . . .227 Brintons, Ltd., v. Turvey [1905] A.C. 230 48, 53, 144, 155 Broderick v. London County Council [1908] 2 K.B. 807 . 53 Brooker v. Warren, 23 T.L.E. 201 . . . .81 Brown v. Cunningham, 6 F. 997 . . . . 201 Brown v. Lochgelly Iron and Coal Co. [1907] S.C. 198 . 97 Bryce v. Connor, 7 F. 193 . . . . . 228 Brydon v. Stewart, 2 Macq. 30 . . .57 Bryson v. Dunn and Stephens, 8 F. 226 . . 196, 226 Cadzow Coal Co. v. Gaffney, 3 F. 72 . . . 201 Caledon v. Kennedy, 8 F. 960 . . . 236 Callaghan v. Maxwell, 2 F. 420 . . 68, 80 Cameron v. Nystrom [1893] A.C. 308 . . 14 Cammick v. Glasgow Iron and Steel Co., 4 F. 198 252, 253 Campbell v. Fife Coal Co., 5 F. 170 . . . 201 Carter v. Drysdale, 12 Q.B.D. 91 . . . .94 Case v. Colonial Wharves, 53 W.E. 514 . . . 201 Cass v. Butler [1900] 1 Q.B. 777 . . . . 117 Castle v. Atkinson [1905] 1 K.B. 336 . . 228, 231 Caton v. Summerlee and Mossend Iron Co., 4 F. 989 . 60 Cattermole v. Atlantic Transport Co. [1902] 1 K.B. 204 . 88, 246 Challis v. London and South Western Eailway Co. [1905] 2 K.B. 154 ..... 62, 66 Chambers v. Whitehaven Harbour Commissioners [1899] 2 Q.B. 132 . . . . .120 Chandler v. Smith [1899] 2 Q.B. 506 . 69, 70, 210, 251 Chartered Bank of India v. Netherlands India Steam Navigation Co., 10 Q.B.D. 534 ... 138 Clark v. The Gas Light and Coke Co., 21 T.L.E. 184 211, 226 Clarkson v. Musgrave, 9 Q.B.D. 386 . . 94 TABLE OF CASES iii PAGE Clatworthy v. Green, 86 L.T. 702 . . . . 260 Cleland v. Singer Manufacturing Co., 7 F. 975 . . 71 Clement v. Bell & Sons, 1 F. 924 . . . . 182 Cochrane v. Trail, 3 F. 27 . . . . .254 Cochrane v. Trail, 37 S.L.E. 662 . . 251, 252, 256 Collins v. Collins [1907] 2 I.E. 104 . . .67 Colville v. Tighe, 8 F. 179 . . . . . 250 Constantino, The, 4 P.D. 156 .... 242 Cook v. North Metropolitan Tramways Co., 18 Q.B.D. 683 16, 175 Cooper and Crane v. Wright [1902] A.C. 302 17, 113, 117 Cooper v. Fife Coal Co. [1907] S.C. 564 . . 180 Corbet v. Glasgow Iron and Steel Co., 5 F. 782 . . 196 Coulthard v. The Consett Iron Co. [1905] 2 K.B. 869 . 181 Cowler v. Moresby Coal Co., 1 T.L.K. 575 . . . 68 Cremins v. Guest, Keen, and Nettlefold- [1908] 1 K.B. 469 61 Cribb v. Kynoch, Ltd., No. 2 [1908] 2 K.B. 551 . 73, 74, 87 Crosfield v. Tanian [1900] 2 Q.B. 629 . . 226, 229 Cunningham v. M'Gregor, 3 F. 775 . . .181 Dailly v. Watson, 2 F. 1044 . . . .78 Daniel v. Ocean Coal Co. [1900] 2 Q.B. 250 . . 220 Darlington v. Eoscoe & Sons [1907] 1 KB. 219 . 182, 193 Davidson v. Summerlee and Mossend Iron Co., 5 F. 991 . 213 Davies v. Khymney Iron Co., 16 T.L.E. 329 . 58, 122 Devine v. Caledonian Eailway, 1 F. 1105 . . .63 Dewhurst v. Mather [1908] 2 K.B. 754 . . 6, 169 Dickinson v. North Eastern Eailway, 2 H. & C. 735 . 183 Dobson v. United Collieries, 8 F. 241 . . . 80 Dothie v. Macandrew [1908] 1 K.B. 803 . 6, 168, 203, 208 Dowds v. Bennie, 5 F. 268 . . . . 228, 262 Doyle v. Beattie, 2 F. 1166 . . . .193 Dunham v. Clare [1902] 2 K.B. 292 ... 193 Dunlop v. Eankin, 4 F. 203 . . . 252, 253 Edwards v. Godfrey [1899] 2 Q.B. 333 72, 73, 74, 85, 86, 130 Edwards v. Guest, Keen, and Nettlefold [1904] 1 K.B. 339 213, 221, 225 Elliot v. Liggens [1902] 2 K.B. 84 . . . .68 Ellis v. Ellis [1905] 1 K.B. 234 . . . . 174 Ellis v. Knott, The Times, April 9, 1900 . . .210 Evans v. Cook [1905] 1 K.B. 53 . . . 118, 132 iv TABLE OP CASES PAGE Evans v. Penwyllt Dinas Silica Brick Co., Ltd., 18 T.L.E. 58 173 Fagan v. Murdoch, 1 F. 1179 . 183, 192, 195, 216 Falconer v. London and Glasgow Engineering Co., 3 F. 564 62,65 Fenn v. Miller [1900] 1 Q.B. 788 . . . . 121 Fenton v. Thorley [1903] A.C. 443 . . 48, 50, 51 Ferrier v. Gourlay, 4 F. 711 . . . 228 Field v. Longden [1902] 1 K.B. 47 . . 227, 235 Finnic & Son v. Duncan, 7 F. 254 . . . 213, 221 Fitzgerald v. Clarke [1908] 2 K.B. 796 . . 66 Fleming v. Lochgelly Iron and Coal Co., 4 F. 890 . . 201 Forrester v. M'Callum, 3 F. 650 . . . . 193 Francis v. Turner [1900] 1 Q.B. 478 . . 122 Fraser v. Great Northern of Scotland Railway, 3 F. 908 . 71 Freeland v. Macfarlane, 2 F. 832 . . . .70 Geary v. Dixon, 4 F. 1143 . . . . .196 George v. Glasgow Coal Co., The Times, Nov. 10, 1908 . 80 Gibbs v. Dunlop, 4 F. 971 . . . . .203 Gibson v. Wilson, 38 S.L.R. 450 . . . .57 Gibson v. Wormald and Walker [1904] 2 K.B. 40 . . 241 Giles v. Belford Smith & Co. [1903] 1 K.B. 843 . . 201 Gillett v. Fairbank, 3 T.L.E. 618 . . . . 165 Glasgow and South Western Railway v. Laidlaw, 2 F. 708 78 Glasgow Coal Co. v. Sneddon, 7 F. 485 . . 80 Golder v. Caledonian Railway, 5 F. 123 . . 54 Goodlet v. Caledonian Railway, 4 F. 986 . . . 68 Gorley v. Owners of Backworth Collieries, 21 T.L.R. 494 54 Goslan v. Gillies [1907] S.C. 68 . . . .63 Gourlay v. Sweeney, 8 F. 965 .... 252 Great Eastern Steam Shipping Co., In re, 5 Asp.M.C. 511 136 Great Northern Railway Co. v. Dawson [1905] 1 K.B. 331 168, 203 Great Northern Railway Co. v. Whitehead, 18 T.L.R. 816 131 Grewar v. Caledonian Railway, 4 F. 895 . . . 200 Griffith v Dudley, 9 Q.B.D. 357 . . . .16 Guthrie v. Boase Spinning Co., Ltd., 38 S.L.R. 483 . 80 Haddock v. Humphries, The Times, August 1, 1899 . 241 Haley v. United Collieries [1907] S.C. 214 . . 60 Hall v. Snowdon [1899] 1 Q.B. 593 ... 241 TABLE OF CASES v PAGE Hamilton Fraser & Co. v. Pandorf, 12 A.C. 518 . . 50 Hamlyn v. Crown Insurance Co. [1893] 1 Q.B. 750 48, 49 Harris v. Amery, L.E. 1 C.P. 148 .. . 115 Harrison v. Whitaker, 64 J.P. 54 . . . .64 Harwood v. Abrahams [1901] 2 K.B. 304 . . . 241 Hathaway v. Argus Printing Co. [1901] 1 Q.B. 96 202, 207 Hayden v. Dick, 5 F. 150 . . . . . 174 Haylett v. Vigor & Co. [1908] 2 K.B. 837 . 145, 150, 268 Hearn v. Phillips, 1 T.L.E. 475 . . .94 Hendry v. Caledonian Eailway [1907] S.C. 732 . . 68 Hensay v. White [1900] 1 Q.B. 481 . . 50, 51 Herd v. Summers, 7 F. 870 . . . . 166 Hewlett v. Hepburn, 16 T.L.E. 56 ... 202 Hill v. Begg [1908] 2 K.B. 802 . . 5, 170 Holmes v. Great Northern Railway Co. [1900] 2 Q.B. 409 59 Holness v. Mackay and Davis [1899], 2 Q.B. 319 . 56, 59 Houghton v. Sutton Heath and Lea Green Collieries Co., Ltd. [1901] 1 K.B. 93 203 Houlder Line, Ltd., v. Griffin [1905] A.C. 220 . 20, 136 Howells v. Vivian & Sons, 85 L.T. 529 . . 179 Huball v. Everitt, 16 T.L.E. 168 . . . . 242 Hughes v. Summerlee and Mossend Iron and Steel Co., 5 F. 784 . . . . . .195 Hughes v. Thistle Chemical Co. [1907] S.C. 607 . . 254 Hunter v. Baird, 7 F. 304 . . . . . 202 Husband v. Campbell, 5 F. 1146 . . . .71 Hutchinson v. York, Newcastle, and Berwick Eailway,Co., 5Exch. 343 .14 Illingworth v. Walmsley, 16 T.L.E. 281 . . . 211 Imperial Loan Co. v. Stone [1892] 1 Q.B. 599 . . 84 Incorporated Council of Law Eeporting, In re the, 29 Q.B.D. 279 . . . . . .116 Irons v. Davis and Timmins, Ltd. [1899] 2 Q.B. 330 70, 251, 253 Isaacson v. New Grand (Clapham Junction), Ltd. [1903] 1KB. 539 .... 74,86,87,242 Ismay v. Williamson [1908] A.C. 437 ... 54 James v. Ocean Coal Co. [1904] 2 K.B. 213 . . 201 Jamieson v. Fife Coal Co., 5 F. 958 . . . 196 John v. Albion Coal Co., 65 J.P. 788 . 78 vi TABLE OF CASES PAGE Johnson v. Lindsay [1891] A.C. 371 ... 14 Johnson v. Marshall, Sons & Co., Ltd. [1906] A.C. 409 79, 82 Johnston v. Cochran & Co., 6 P. 854 . . . 228 Johnston v. Mew, Langton & Co., 24 T.L.E. 175 . . 254 Jones v. Great Central Eailway, 4 W.C.C. 23 246, 251, 252 Jones v. Ocean Coal Co. [1899] 2 Q.B. 124 . . 202 Jones v. Ehymney Iron Co. [1902] 1 K.B. 57 . . 200 Keane v. Nash, 88 L.T. 790 .... 240 Keast v. Barrow Haematite Steel Co., 15 T.L.E. 141 . 202 Keen v. Milwall Dock Co., 8 Q.B.D. 482 . . . 93 Keenan v. Flemington Coal Co., 5 F. 164 . . . 60 Kilpatrick v. Wemyss Coal Co. [1907] S.C. 320 . 98, 99 Kniveton v. Northern Employers Co. [1902] 1 K.B. 880 . 240 Leach v. Life and Health Insurance Association [1901] 1 K.B. 707 240 Leggett v. Burke, 4 F. 693 . . . . . 180 Leonard v. Baird, 3 F. 890 . . . . . 193 Lewis v. Great Western Eailway Co., 3 Q.B.D. 195 . 76 Little i?. Maclellan, 2 F. 387 . . . .75 Lloyd v. Sugg [1900] 1 Q.B. 481 . . 49, 51 Lochgelly Iron and Coal Co. v. Sinclair [1907] S.C. 3 . 254 Logue v. Fullerton, 3 F. 1006 . . . .68 London and Edinburgh Shipping Co. v. Brown, 7 F. 488 . 64 Losh v. Evans, 51 W.E. 243 . . . .67 Louth v. Ibbotson [1899] 1 Q.B. 1003 . . .120 Lowe v. Myers [1906] 2 K.B. 265 . . 97, 98 Lowe v. Pearson [1899] 1 Q.B. 261 ... 63 Lowry v. Sheffield Coal Co., 24 T.L.E. 142 . 62 Lynch v. Baird, 6 F. 271 . . . . .80 Lysons v. Knowles [1901] A.C. 79 ... 200 McAllen v. Perthshire County Council, 8 F. 783 . 62, 67 M'Cue v. Barclay, 4 F. 909 . . . . 200 M'Donald v. Dunlop, 7 F. 533 . . .73 Macdonald v. Fairfield Shipbuilding Co., 8 F. 8 . . 250 Macdonald v. Owners of ss. Banana [1908] 2 K.B. 926 . 62 M'Gowan v. Smith [1907] S.C. 548 ... 86 M'Groarty v. Brown, 8 F. 809 . . .80 Mclntyre v. Eodgers, 6 F. 176 . . .68 Mackenzie v. Coltness Iron Co., 6 F. 8 . . .60 McLaughlin v. Clayton, The Times, Feb. 28, 1899 . . 241 TABLE OP CASES vii PAGE M'Nicholas v. Dawson [1899] 1 Q.B. 773 . . . 68 M'Nicol v. Spiers, Gibbs & Co., 1 F. 604 . . 68, 80 Main Colliery v. Davies [1900] A.C. 358 . . . 179 Malone v. Cayzer, Irvine & Co. [1908] S.C. 479 . . 193 Manchester v. Carlton, 89 L.T. 730 ... 218 Marno v. Workman, Clark & Co., 33 I.L.T. 183, and see note at [1900] 2 Q.B. 149 . . . .98 Marrow v. Flimby and Broughton Co., Ltd. [1898] 2 Q.B. 588 . . . . . .173 Marshall v. East Holywell Coal Co., 21 T.L.B. 494 . 54 Martin v. Travellers Insurance Co., 1 F. & F. 505 . . 55 Mason v. Dean [1900] 1 Q.B. 770 . . . . 117 Maver v. Park, 8 F. 250 . . . .98 Menzies v. McQuibban, 2 F. 732 . . . .64 Middlemiss v. Berwickshire County Council, 2 F. 392 . 122 Midland Eailway Co. v. Sharpe [1904] A.C. 349 . 204, 208 Mitchell v. Glamorgan Coal Co., 23 T.L.E. 588 . . 60 Morgan v. London General Omnibus Co., 13 Q.B.D. 832 16, 175 Morgan v. Vale of Neath Bailway Co., L.E. 1 Q.B. 149 . 14 Morris v. Lambeth Borough Council, 22 T.L.E. 22 . 68 Morris v. Northern Employers' Co. [1902] 2 K.B. 165 . 240 Morton v. Woodward [1902] 2 K.B. 276 . . . 227 Moyes v. Dixon, 7 F. 386 . . . . . 186 Moyle v. Jenkins, 8 Q.B.D. 116 . . .93 Mulrooney v. Todd, 25 T.L.E. 103 . . . . 115 Nash v. Hollinshead [1901] 1 K.B. 700 . . . 116 Neale v. Electric and Ordnance Accessories Co., Ltd. [1906] 2 K.B. 558 . . . 74,75,87,242 Nelson v. Kerr and Mitchell, 3 F. 893 . . . 201 Nicholson v. Piper [1907] A.C. 215 ... 227 Niddrie and Benhar Coal Co. v. M'Kay, 5 F. 1121 213, 221 Norman and Burt v. Walder [1904] 2 K.B. 27 . . 226 O'Donovan v. Cameron [1901] 2 I.E. 633 . . . 182 O'Hara v. Cadzow Coal Co., 5 F. 439 . . . 80 O'Keefe v. Lovatt, 18 T.L.E. 57 . . . .193 Oliver v. Nautilus Co. [1903] 2 K.B. 639 . . . 130 O'Neill v. Motherwell [1907] S.C. 1076 . . .100 Osborn v. Vickers [1900] 2 Q.B. 91 ... 212 Osborne v. Barclay [1901] A.C. 269 . 241, 265 viii TABLE OF CASES PAGE Osmond v. Campbell and Harrison [1905] 2 K.B. 852 183, 194, 210 Page v. Burtwell [1908] 2 K.B. 758 ... 129 Parker v. Dixon, 4 F. 1147 . . . . .196 Paterson v. Lockhart, 7 F. 954 . . . 174 Pattison v. White, 20 T.L.E. 775 . . . . 122 Peacock v. Niddrie and Benhar Coal Co., 4 F. 443 . 201 Pearce v. London and South Western Railway Co. [1900] 2 Q.B. 100 ..... 115, 120 Penn v. Spiers [1908] 1 K.B. 766 . . . 6, 208, 209 Perry v. Clements, 17 T.L.E. 525 . . . .98 Perry v. Wright [1908] 1 K.B. 441 . . 7, 205, 208, 209 Pomfret v. Lancashire and Yorkshire Eailway Co. [1903] 2 KB. 718 65 Pomphrey v. Southwark Press [1901] 1 K.B. 86 65, 203, 208 Potter v. Faulkner, 1 B. & S. 800 . . . .13 Powell v. Brown [1899] 1 Q.B. 157 ... 120 Powell v. Edwards, The Times, July 23, 1900 . . 210 Powell v. Lanarkshire Steel Co., 6 F. 1039 . . 81 Powell v. Main Colliery Co., Ltd. [1900] A.C. 366 83, 97, 98, 102 Praties v. Broxburn Oil Co. [1907] S.C. 581 . . 80 Previsi v. Gatti, 4 T.L.E. 487 . . .94 Price v. Marsden [1899] 1 Q.B. 493 . . 203, 208 Priestley v. Fowler, 3 M. & W. 1 . . . .14 Pryce v. Penrikyber Navigation Colliery Co., Ltd. [1902] 1 KB. 221 . . . . . .193 Pugh v. London, Brighton, and South Coast Eailway Co. [1896] 2 Q.B. 248 49 Pumpherston Oil Co. v. Cavaney, 5 F. 963 . . 228 Queen v. Clarke [1906] 2 I.E. 135 .. . 182 Eankine v. Alloa Coal Co., 6 F. 375 . . . 97 Eeeks v. Kynochs, Ltd., 50 W.E. 113 . . 79 Eees v. Penrikyber Navigation Colliery Co., Ltd. [1903] 1 K.B. 259 174 Eees v. Powell Duffryn Steam Coal Co., Ltd., 64 J.P. 164 78, 79 Eees v. Eichards, The Times, August 8, 1899 . . 242 Eees v. Thomas [1899] 1 Q.B. 1015 . . 63 Eendall v. Hill's Dry Dock and Engineering Co., Ltd. [1900] 2 Q.B. 245 ... 83, 99, 100, 101 TABLE OF CASES ix PAGE B. v. Evans, 62 L.T. 570 ... . 239 B. v. Judge of City London Court, 25 Q.B.D. 339 . 136 B. v. Justices of Southampton, 96 L.T. 697 . , 239 B. v. Owen [1902] 2 K.B. 436 .... 257 B. v. Shinfield, 14 East 541 .... 175 Eigby v. Cox [1904] 1 K.B. 358 . . . . 240 Bigby v. Cox [1904] 2 K.B. 208 . . . . 246 Bobertson v. Allan, 98 L.T. 821 . . . .61 Bogers v. Mayor of Cardiff [1905] 2 K.B. 832 . . 121 Boper v. Greenwood, 83 L.T. 471 . . . .51 Bosengvist v. Bowring [1908] 2 K.B. 109 . . 6, 209 Bosewell Gas Co. v. M'Vicar, 7 F. 290 . . 246 Eothwell v. Davis, 19 T.L.B. 423 . . . . 197 Bouse v. Dixon [1904] 2 K.B. 628 ... 73 Bowland v. Wright, 24 T.L.B. 852 ... 67 Bumboll v. Nunnery Colliery Co., Ltd., 80 L.T. 42 . 77 Bussell v. M'Cluskey, 2 F. 1312 . . . .193 Schofield v. The Orrell Colliery, 25 T.L.B. 106 . . 183 Searle v. Lindsay, 11 C.B.N.S. 429 ... 13 Secretary of the Board of Trade v. Sundholm, 4 Asp.M.C. 196 140 Senior v. Fountains and Burnley [1907] 2 K.B. 563 . 180 Senior v. Ward, 28 L.J.Q.B. 139 . . . .13 Sharman v. Holliday [1904] 1 K.B. 235 . . . 226 Sharp v. Johnson & Co., Ltd. [1905] 2 K.B. 139 . . 59 Shea v. Drolenvaux, 88 L.T. 679 . . . . 242 Shearer v. Miller & Sons, 37 S.L.B. 80 . .96 Simmons v. Faulds, 17 T.L.B. 352 . . . . 173 Simmons v. White [1899] 1 Q.B. 1005 . 178, 179 Simpson v. Ebbw Vale Steel, Iron, and Coal Co., Ltd. [1905] 1 K.B. 453 ..... 175 Sinclair v. Maritime Passengers Co., 30 L.J.Q.B. 77 . 55 Skeggs v. Keen, The Times, May 16, 1899 . . .241 Smith v. Anderson, 15 C.D. 247 . . . 116 Smith v. Baker [1891] A.C. 325 . . . .13 Smith v. Coles [1905] 2 K.B. 827 . . . . 117 Smith v. Cord Taton Co., The, Times, Feb. 6, 1900 . 197 Smith v. Lancashire and Yorkshire Bailway Co. [1899] 1 Q.B. 141 62,239 Smith v. South Normanton Colliery Co., Ltd. [1903] 1 K.B. 204 65 x TABLE OF CASES PAGE Sneddon v. Robert Addie & Sons, 6 F. 992 . . 181 Speak v. Powell, L.R. 9 Exch. 25 . . . .116 Stanland v. North Eastern Steel Co., 23 T.L.E. 1 . .242 Steel v. Cammell Laird & Co. [1905] 2 K.B. 232 49, 53, 54 Steel v. Oakbank Oil Co., 5 F. 244 . . . . 228 Stephens v. Dudbridge [1904] 2 K.B. 225 . . 75, 84 Stewart v. Wilsons and Clyde Coal Co., Ltd., 5 F. 120 52 Stone v. Hyde, 9 Q.B.D. 76 . . . .93 Strannigan v. Baird, 6 F. 784 . . . 213, 221 Stuart v. Nixon [1901] A.C. 79 . . .241 Sweeney v. Pumpherston Oil Co., 5 F. 972 . . 197 Tarrant v. Webb, 18 C.B. 797 . . .13 Taylor, Ee t 4 C.D. 159 ..... 245 Taylor v. Hamstead Collieries Co., Ltd. [1904] 1 K.B. 838 75, 110 Thomas v. Quartermaine, 18 Q.B.D. 685 . . .16 Thompson v. Arlington Coal Co., Ltd., 84 L.T. 412 .50 Thomson v. Hart, 28 S.L.R. 28 . . .136 Timmins v. Leeds Forge Co., Ltd., 16 T.L.E. 521 . . 50 Todd v. Caledonian Railway, 36 S.L.R. 784 . 61, 68 Treherne v. Ocean Coal Co., 21 T.L.R. 621 . 107, 108 Tunney v. Midland Railway Co., L.R. 1 C.P. 291 . . 57 Turnbull v. Lambton, 82 L.T. 589 . . . . 121 Turner v. Whitefield, 6 F. 822 . . . 181 Union Bank v. Lenanton, 3 C.P.D. 243 . . . 138 United Collieries v. M'Ghie, 8 F. 808 . . . 80 Valenti v. Dixon [1907] S.C. 695 . . . .75 Vamplew v. Parkgate Iron and Steel Co., Ltd. [1903] 1 K.B. 851 . . . . .174 Vickery v. Great Eastern Railway Co., 14 T.L.R. 562 . 61 Villar v. Gilbey [1907] A.C. 139 . . . . 181 Walker v. LiUeshall Coal Co., Ltd. [1900] 1 Q.B. 481 . 50, 51 Wallace v. Glenboig Fire Clay Co., Ltd. [1907] S.C. 967 79 Wallace v. Hawthorne [1908] S.C. 713 . . 108, 189 Webster v. Sharp [1905] A.C. 284 . . . . 210 Welland v. Great Western Railway Co. 16 T.L.R. 297 240, 246, 261 Wheale v. Rhymney Iron Co. [1902] 1 K.B. 57 . . 200 Whitbread v. Arnold, 99 L.T. 103 . . . 61, 175 Whitehead v. Reader [1901] 2 K.B. 48 . .64 TABLE OF CASES xi PAGE Wicks v. Dowell & Co., Ltd. [1905] 2 KB. 225 . . 66 Willett v. Boote, 6 H. & N. 26 . . . .172 Williams v. Army and Navy Auxiliary Co-operative Society, 23 T.L.E. 408 . . . . . .240 Williams v. Birmingham Battery Co., Ltd. [1899] 2 Q.B. 338 . . . . . .13 Williams v. Jones, 3 H. & C. 602 . . . . 172 Williams v. Ocean Coal Co. [1907] 2 KB. 422 . . 181 Williams v. Poulson, 16 T.L.E. 42 ... 202 Williams v. Vauxhall Colliery Co., Ltd. [1907] 2 K.B. 433 . 227 Wilson v. Jackson, 7 W.C.C. 122 . . . 211 Wilson v. Ocean Coal Co., 21 T.L.R. 621 . . . 107 Winspear v. Accident Insurance Co., Ltd., 6 Q.B.D. 42 . 55 Wright v. Bagnall [1900] 2 Q.B. 240 . . 84, 99 Wrigley v. Whittaker [1902] A.C. 299 . . 122 Yarmouth v. France, 19 Q.B.D. 647 ... 13 Yewens v. Noakes, 6 Q.B.D. 530 . . . . 172 Zugg v. Cunningham [1908] S.C. 827 ... 114 ABBREVIATIONS A.C. = Appeal Cases. Asp.M.C. = AspinalTs Maritime Cases. B. & S. = Best and Smith. C.B.N.S. = Common Bench, New Series. C.D. = Chancery Division. C.P. = Common Pleas. C.P.D. = Common Pleas Division. Exch. = Exchequer. F. = Eraser's Reports (Scotland). F. & F. = Foster and Finlason. H. & C. = Hurlstone and Coltman. H. & N. = Hurlstone and Norman. I.E. = Irish Reports. J.P. = Justice of the Peace. K.B. = King's Bench. L.J. = Law Journals. L.R. = Law Reports. L.T. = Law Times. M. & W. = Meeson and Welsby. Macq. = Macqueen's Reports (Scotch Appeals). Q.B. = Queen's Bench. Q.B.D. = Queen's Bench Division. S.C. = Court of Sessions Cases (Scotland). S.L.R. = Scottish Law Reporter. T.L.R. = The Times Law Reports. W.C.C. = Minton-Senhouse's Workmen's Compen- sation Cases. W.R. = Weekly Reporter. xii OF THE UNIVERS 01 THE LAW PRIOR TO 1906 THE Workmen's Compensation Act, 1906, repeals the Workmen's Compensation Acts, 1897 and 1900. It, however, leaves to the workman his rights under the common law and the Employers' Liability Act, 1880. It is necessary, therefore, to recapitulate briefly what these common law and statutory rights are. By the Common Law, if a servant is injured, he can recover damages from his master, where the injury is due to the master's negligence. Such negligence occurs where (i) the master is personally careless (Ashworth v. Stanwix, 30 L.J.Q.B. 183 ; Smith v. Baker [1891] A.C. 325). Or (ii) the master does not take due care to employ com- petent fellow-servants (T arrant v. Webb, 18 C.B. 797 ; Senior v. Ward, 28 L.J.Q.B. 139 ; Potter v. Faulkner, 1 B. and S. 800). Or (iii) the master allows his premises or plant to remain in a dangerous condition when he knows or ought to know that their condition is dangerous (Williams V.Birmingham Battery Company [1899], 2 Q.B. 338; Searle v. Lindsay, 11 C.B.N.S. 429). But even if the master is negligent, he is not liable if the injury resulted from a risk which the servant impliedly undertook to run (Yarmouth v. France, 19 Q.B.D. 647) ; for the maxim of the common law is " Volenti non fit injuria." So if the servant undertakes the care of dangerous machinery, and is injured while 13 14 THE WORKMEN'S COMPENSATION ACT, 1906 looking after it, he has no remedy (Bartonshill Coal Company v. Reid, 3 Macq. 266). And with regard to fellow-servants, it has been held that one of the risks that servants impliedly undertake to run is the negligence of their fellow-servants. If the master takes due care to choose competent fellow- servants, his duty is at an end, and he is not liable to his other servants for their negligence. This is the well- known doctrine of " common employment," and was first distinctly laid down in Priestley v. Fowler (3 M. and W. 1) and in Hutchinson v. York, Newcastle, and Berwick Railway (5 Exch. 343). In the latter case an employee of a railway company, while travelling in the course of his duty in one of the company's trains, was injured through that train colliding with another belonging to the same company, and the collision was caused by the negligence of the driver of the latter train ; it was held that the plaintiff and the driver were in common employment, and therefore the plaintiff could not recover. The meaning of this doctrine was considered in Morgan v. Vale of Neath Railway Company (L.K. 1 Q.B. 149), where it was held that a railway porter was in common employment with the navvies engaged in moving a turn- table. It was said in that case that common employ- ment " does not necessarily imply that both servants should be engaged in the same or even similar acts, so long as the risk of injury from the one is so much a natural and necessary consequence of the employment which the other accepts that it must be included in the risks which have to be considered in his wages." It should be noticed that the doctrine only applies as between servants of the same employer (Cameron v. Nystrom [1893], A.C. 308). And therefore it did not apply where one workman was the servant of a contractor and the other was the servant of the contractor's employer (Johnson v. Lindsay [1891] A.C. 371). The Employers' Liability Act, 1880, was passed with the object of mitigating the hardships caused by the THE LAW PRIOR TO 1906 15 application of the doctrine of common employment. It does not extend to all workmen, but only to 1. Railway servants. 2. Labourers. 3. Husbandmen. 4. Journeymen. 5. Artificers. 6. Handicraftsmen. 7. Miners. 8. Other persons engaged in manual labour, not being domestic or menial servants. If any of the above are injured, the employer is by this Act precluded from setting up the defence of common employment, if the injury was due to (i) a defect in the condition of the ways, works, machinery, or plant connected with or used in the business of the employer (sec. 1, subsec. 1) caused, undiscovered, or unremedied by the negligence of the employer, or of some person entrusted by him with the duty of seeing that the ways, works, ma- chinery, or plant were in proper condition (sec. 2, subsec. 1). Or (ii) the negligence of a fellow-servant who has any superintendence entrusted to him, while so super- intending (sec. 1, subsec. 2). Or (iii) the negligence of any person in the employment of the master to whose orders the servant at the time of the injury was bound to and did conform, where the injury was the result of so conforming (sec. 1, subsec. 3). Or (iv) the act or omission of any person in the service of the employer done or made in obedience to the rules or bye-laws of the employer, or in obedience to particular instructions given by any person delegated with the authority of the employer in that behalf (sec. 1, subsec. 4) ; but only if the injury resulted from any impropriety or defect in such rules, bye- laws, or instructions (sec. 2, subsec. 2). Or 16 THE WORKMEN'S COMPENSATION ACT, 1906 (v) the negligence of a fellow-servant having charge or control of any signal points, locomotive engine, or train upon a railway (sec. 1, subsec. 5). Actions under this Act must be brought in the county court, and the damages recoverable are limited to three years' average earnings. There are several defects in this Act, the chief of which are : 1. The master can still rely on the defence of " Volenti non fit injuria," except in " common employment" cases. See Thomas v. Quartermaine (18 Q.B.D. 685). 2. The workman can contract himself out of the Act (Griffith v. Dudley, 9 Q.B.D. 357). 3. It only applies to a limited class of workers. Thus omnibus conductors (Morgan v. London General Omnibus Company, 13 Q.B.D. 832), tramway drivers (Cook v. North Metropolitan Tramways Company, 18 Q.B.D. 683), and shop assistants (Bound v. Lawrence [1892] 1 Q.B. 226) are none of them employed in " manual labour," and so are not within the Act. 4. It does not apply where the injury is due to the negligence of a fellow-servant not " having superinten- dence" over the injured servant. 5. The master can rely on the defence of contributory negligence. This Act is still in force. It is set out in Appen- dix N. The Workmen's Compensation Act, 1897, introduced an entirely new principle into the law, and for the first time made the employer liable for injuries to his workmen, apart from any negligence on the part of the employer or his servants. The Act was admittedly an experiment, and only extended to certain employments which were considered especially dangerous. It provided that in those employments, if the workman was injured by an accident arising out of or in the course of his employment, the employer should be liable to pay compensation to the workman or his dependants in accordance with a scale THE LAW PRIOR TO 1906 17 set out in the first schedule (sec. 1, subsec. 1). The compensation had to be paid whatever the cause of the injury, unless it was due to the serious and wilful mis- conduct of the workman (sec. 1, subsec. 2 (c) ). It also provided that the workman could only contract out of the Act in accordance with a scheme certified by the Chief Registrar of Friendly Societies (sec. 3). It only applied to employment by the undertakers (the meaning of which word led to a great deal of litigation ; see Cooper and Crane v. Wright [1902] A.C. 302) on, in, or about 1. Railways; 2. Factories ; 3. Mines; 4. Quarries ; 5. Engineering works ; and 6. Buildings which exceeded 30 feet in height, and were either being constructed or repaired by means of a scaffolding, or being demolished, or on which machinery driven by steam, water, or other mechanical power was being used for the construction, repair, or demolition thereof (sec. 7). This Act improved the position of workmen in the following ways: 1. It gave a remedy apart from any question of negli- gence, and abolished the defences of " Volenti non fit in- juria," common employment, and contributory negligence. 2. It only permitted contracting out where the work- man's interests were properly guarded. But, on the other hand, it had numerous defects. Thus (i) It only applied to a very limited number of employments. (ii) It was intended to be expressed in popular language, easy for workmen to understand. This led to the unfortunate result that it gave rise to more litigation than any other Act which has been passed in modern times. 2 18 THE WORKMEN'S COMPENSATION ACT, 1906 (iii) It was extremely capricious in its operation. For instance, if a workman was injured on a building 31 feet high he was compensated ; if the building was only 29 feet high he got nothing. This Act is repealed by the Workmen's Compensation Act, 1906. It is set out in Appendix L. The Workmen's Compensation Act, 1900, extended the provisions of the Act of 1897 to workmen employed in agriculture. This Act has also been repealed by the Workmen's Compensation Act, 1906. It is set out in Appendix M. The Workmen's Compensation Act, 1906, proceeds broadly on the same lines as the Act of 1897, but alters it in the following ways : (i) It applies to practically all employments, (ii) Instead of serious and wilful misconduct of the workman being a defence in all cases, it is only so if neither death nor serious and permanent disablement supervenes. (iii) The old Act only applied to injuries by accident, but this applies also to certain " industrial diseases." (iv) This Act applies to seamen, (v) It is framed in more precise and technical language. See particularly Sched. I. para. 2. (vi) It lessens the period during which the disable- ment must last in order to give rise to the right to be compensated, (vii) The class of " dependants " is increased, so as to include inter alia illegitimate children, (viii) By the provisions with regard to registration it prevents unfair bargains being made as to the amount of compensation. SUMMARY OF THE ACT THE order in which the various subjects are dealt with in the Act makes it difficult for one unacquainted with its provisions to refer to any point quickly. It is pro- posed therefore in this chapter to summarise the Act by putting the different matters in a logical order, with a reference in each case to the place in the annotated text where it is more fully considered. The main object of the Act is to award compensation to workmen who are injured by accident. The whole subject has therefore been divided into five headings, as follows : 1. The persons entitled to compensation. 2. The circumstances under which compensation is payable. 3. The amount of the compensation. 4. The persons liable to pay the compensation. 5. Procedure. 1. The Persons Entitled to Compensation. There are three classes of persons who, as the circum- stances differ, are entitled to be compensated (a) Workmen. (b) Dependants. (c) The persons liable for a deceased workman's medical and funeral expenses. (a) Workmen. The expression " workman" is defined in sec. 13 of the Act, as follows : " Workman does not include any person employed otherwise than by way of manual labour whose remuneration exceeds two hundred and fifty pounds a year, or a person whose employment is 19 20 THE WORKMEN'S COMPENSATION ACT, 1906 of a casual nature, and who is employed otherwise than for the purposes of the employer's trade or business, or a member of a police force, or an out worker, or a member of the employer's family dwelling in his house, but, save as aforesaid, means any person who has entered into or works under a contract of service or apprenticeship with an employer, whether by way Of manual labour, clerical work, or otherwise, and whether the contract is express or implied, is oral or in writing " (see p. 166 infra). "Member of a family," "police force," and "out worker " are all defined in sec. 13 (q.v.). A man is not a servant if he is an " independent con- tractor." For the cases on this subject see p. 172. Persons in the service of the Crown are "workmen" if they ;are otherwise within the Act ; but there is an exception in the case of persons in the naval and military services, who are excluded (see sec. 10, p. 158). Seamen. The case of seamen is considered in sec. 7 (see p. 133). It had been held under the Act of 1897 that seamen were not workmen within the meaning of that Act (Boulder Line, Ltd., v. Griffin [1905], A.C. 220). By this section the present Act is expressly extended to " masters seamen and apprentices to the sea service and to apprentices in the sea-fishing service." It is, however, clear that the ordinary rules with regard to giving notice of the accident, making claim for com- pensation, etc., cannot apply in cases where an accident happens at sea ; and the right to compensation under this section is therefore made subject to a number of "modi- fications" dealing with such matters (see pp. 139-42). It should be noticed that pilots are within the Act, but not such members of the crew of a fishing vessel as are remunerated by shares in the profits or the gross^earnings of the working of such vessel. (b) Dependants. If the workman is killed by the accident, his "dependants" are entitled to compensa- tion. See para. 1 of Sched. I. " Dependants " is defined in sec. 13 (see p. 177) as meaning " such mem- SUMMARY OF THE ACT 21 bers of the workman's family as were wholly or in part dependent upon the earnings of the workman at the time of his death, or would, but for the incapacity due to the accident, have been so dependent, and where the workman, being the parent or grandparent of an illegitimate child, leaves such a child so dependent upon his earnings, or, being an illegitimate child, leaves a parent or grandparent so dependent upon his earnings, shall include such an illegitimate child and parent or grandparent respectively." " Member of a family " is denned in the same section. A great number of cases have fallen to be decided on the meaning of this word. These are discussed infra at pp. 178-82. Dependants are also dealt with in the note on Sched. I. para. 1 (a) (see p. 191). For the purposes of that paragraph dependants are divided into two classes according as they are totally or partially dependent on the deceased workman, and the cases show the difference be- tween these two classes and the way they are to be treated. It is provided by Sched. I. para. 8 that any question arising as to who is and who is not a dependant is to be settled by arbitration under this Act (see p. 215). (c) The persons liable for a deceased workman's medical and funeral expenses are entitled to recover compensation, not exceeding IQ, if the workman leaves no dependants (see Sched. I. para. 1. (a) iii. p. 195). 2. The Circumstances under which Compensation is Payable. A. Injury by Accident. The normal case where com- pensation is payable is when the workman has sustained personal injury by accident arising out of and in the course of his employment (sec. 1, subsec. 1). The meaning of " injury by accident " is dealt with at pp. 48-54, and of " arising out of and in the course of the employment " at pp. 55-68. But it is not in every case where a workman has sus- tained personal injuries by accident arising out of and 22 THE WORKMEN'S COMPENSATION ACT, 1906 in the course of his employment that compensation is payable, for (i) No compensation is payable if the workman is not disabled for one full week from earning full wages at the work at which he was employed. This is sec. 1, subsec. 2 (a) (p. 68). (ii) if the injury is due to the serious and wilful mis- conduct of the workman, no compensation is payable unless the injury result in death or serious and per- manent disablement. This is sec. 1, subsec. 2 (c) (p. 76). For the meaning of " serious and wilful misconduct" see the cases cited at pp. 76-81. (iii) a claim for compensation is not maintainable unless notice of the accident is given as soon as practicable after the happening of the accident, and unless a claim for compensation is made within six months. This is enacted by sec. 2 (p. 91). By the provisos to this section, a failure to give notice or make a claim is excused in a number of cases (see p. 92). These exceptions are so wide that it can rarely happen that a right to compensation is lost through a failure to comply with this section. B. " Industrial " Diseases. Besides the normal case of injury by accident, the workman also receives compensa- tion if he falls ill of certain specified " industrial " diseases. This question is dealt with in sec. 8, and an elaborate code is there laid down (see pp. 143-55). It is not every disease that gives a right to compensation under this section, which is only payable where (a) the certifying surgeon certifies that the workman is suffering from one of the diseases mentioned in the third schedule (see p. 267) of the Act, or in any of the orders made extending that schedule (see p. 476) ; or (b) the workman is in fact suspended from his employ- ment because he is suffering from some such disease ; or SUMMARY OF THE ACT 23 (c) the death of a workman is caused by any such disease ; and the disease is due to the nature of any employment in which the workman was employed at any time within the twelve months previous to the disablement or sus- pension. It will be seen that it would often be very difficult to prove whether or not a disease was due to the nature of the employment. It has therefore been enacted by sub- sec. 2 of sec. 8 that where the workman at or immediately before the date of the suspension was employed in any process mentioned in the second column of the third schedule, and the disease contracted is the disease in the first column of that schedule set opposite the description of the process, the disease shall be deemed to be due to the nature of the process, unless the contrary is proved (see p. 149). If the workman has been in the service of several employers in the same business, it is difficult to tell in whose service the disease was contracted. It is therefore provided in subsec. 1 (c) that the employer who last employed the workman in the process in question shall be the person liable to pay the compensation, but that in certain circumstances he may recover the whole or a part of what he has paid from other employers (see p. 146). Special provisions are also made in this section as to the date which is to be taken to correspond to the date of the accident for the purposes of giving notices, etc. (see p. 151). Procedure under this section is governed by Kule 39 (p. 298). C. The effect of the Exercise of Rights outside the Act, In some but not in all cases the fact that a workman has taken proceedings to enforce a remedy outside this Act acts as a bar to his right to be compensated (a) Action against his Employer. If the injury was caused in such circumstances as to give the work- man a right of action against his employer apart 24 THE WORKMEN'S COMPENSATION ACT, 1906 from this Act, the workman may at his option either start compensation proceedings cr bring his action. This is provided by sec. 1, subsec. 2 (p. 71). He cannot recover both compensation and damages. And it is clear that if he brings an action and fails in it, he cannot afterwards start compensation proceedings (see cases cited at p. 72). The converse case i.e., where he fails in compensation proceedings and then seeks to bring an action is not so clear, but it is submitted that there, too, the exercise of the option is final (see p. 74). But a workman who fails in an action is given the right to ask the Court which tries it to assess com- pensation then and there. This is provided by sec. 1, subsec. 4 (see p. 84). This right must be exercised immediately at the conclusion of the trial ; otherwise it is lost. (b) Action against a Stranger. If the injury was caused in such circumstances as to give the workman a right of action against a stranger and also a right to be compensated by his employer, the workman is not bound to elect, but may start either or both pro- ceedings. But he is not allowed to recover both damages and compensation, and must choose which he will accept. This is the effect of sec, 6 (see pp. 128-32). In Scotland this contingency is dealt with by sec. 14 (see p. 186). D. Contracting out. A workman may in certain cir- cumstances be deprived of his rights under this Act by virtue of a contract between himself and his employer, but the Act does not look favourably on such contracts, and the circumstances under which they may be entered into are carefully defined in the Act. Sec. 3 deals with this matter (see p. 104). That section provides that an employer and workman can only contract out of the Act in accordance with the provisions of a scheme to be certi- fied by the Chief Eegistrar of Friendly Societies. Such a scheme is not to be certified unless SUMMARY OF THE ACT 25 (a) the majority of the workmen are in favour of it ; (&) the scheme provides scales of compensation to the workmen and their dependants at least as advan- tageous as those under the Act; and (c) if the scheme provides for contribution by the work- men, they receive benefits at least as great as their contributions. Even if all these conditions are complied with and the scheme is certified, no workman is to be obliged to join it. The certificate is only to be in force for five years, and must be renewed at the end of that time. And the Registrar may at any time revoke the scheme if he is satisfied that it is not being properly adminis- tered. In some cases " schemes " for compensation under the old Act were on foot at the commencement of this Act. These are dealt with in sec. 15, subsecs. 2, 3, and 4 (see p. 188). The effect of these provisions is that the Registrar must re- certify such a scheme if its conditions are made to conform with the requirements of this Act. Otherwise the certificate is revoked six months from the commencement of this Act. Other contracts (not founded on schemes) existing at the commencement of the Act, whereby a workman relinquishes any rights to compensation from his employer, and shall not be deemed to continue beyond the time at which the workman's contract of service would deter- mine if notice of the determination thereof were given at the commencement of the Act (see sec. 15, sub- sec. 1, p. 187). With the above exceptions all contracts purporting to exclude the effect of this Act are absolutely void (see the last sentence of sec. 3, subsec. 1, p. 104). 3. The Amount of the Compensation. The method of computing the amount of compensation differs according as the persons entitled to receive it are 26 THE WORKMEN'S COMPENSATION ACT, 1906 A. The workman. B. " Total" dependants. C. " Partial" dependants. D. Persons entitled to be paid the medical and funeral expenses. A. Amount payable to the Workman. Where the workman is totally or partially incapacitated, he receives compensation on the scale laid down in Sched. I. para. 1 (b) (p. 195). That paragraph enacts that where total or partial incapacity for work results from the injury, the amount of compensation shall be a weekly payment during the incapacity not exceeding 50 per cent, of the average weekly earnings of the workman during the pre- vious twelve months, if he has been so long employed, but if not, then for any less period during which he has been in the employment of the same employer, such weekly payment not to exceed 1. There are two provisions to this paragraph which qualify its operation : (i) The first deals with the case where the incapacity lasts less than two weeks, and enacts that in that event no compensation shall be payable in respect of the first week (see p. 197). It will be remem- bered that the Act does not apply at all if the injury does not prevent the workman for at least a week from earning full wages (sec. 1, subsec. 2 (a) ante, p. 22). The combined effect of that subsection and this proviso is as follows : (a) if the incapacity lasts less than a week, no com- pensation is payable ; (b) if it lasts for a period between one and two weeks, compensation is only payable in respect of that part of the second week during which the incapacity lasts ; (c) if it lasts two weeks and upwards, compensation is payable for the whole period. (ii) The second proviso deals with the case where the workman who is incapacitated is under twenty-one SUMMARY OF THE ACT 27 years of age at the date of the injury (see p. 198). Such youths frequently earn only trifling sums, and half their weekly wages would be very inadequate compensation. It is therefore provided that where the workman is under twenty-One years of age, and his earnings are less than 1 per week, 100 per cent, of his average weekly earnings shall be substituted for 50 per cent., but the weekly payment shall in no case exceed 10s. Another qualification on the amount of the weekly payments is contained in para. 3 of the first schedule (see p. 209). This paragraph provides that any pay- ment, allowance, or benefit which the workman may receive from the employer during the incapacity shall be taken into account in fixing the amount of the weekly payments. This paragraph also deals with the case of partial incapacity i.e., where the workman is able to earn something after the accident, but not so much as before it. In such cases it is provided that the weekly payment shall in no case exceed the difference between the amounts he earns before and after the accident respectively, but shall bear such proportion to that amount as may appear proper. Review. Where any weekly payment is going on, either the employer or workman may ask to have it reviewed on showing that the circumstances have changed (Sched. I. para. 16, and cases there cited, pp. 225-28). By the same paragraph, where the workman was under twenty-one years of age at the date of the accident he may, at any time twelve months at least after the accident, without showing that the circumstances have changed, ask that his payments may be increased up to any amount not exceeding 50 per cent, of the sum which, but for the accident, he would probably have been earn- ing, and in no case exceeding one pound per week (see p. 228). Redemption. Where any weekly payment has been 28 THE WORKMEN'S COMPENSATION ACT, 1906 continued for six months, the employer may have it redeemed by the payment of a lump sum. This is enacted by Sched. I. para. 17 (pp. 229-31). If the incapacity is permanent, the lump sum is such an amount as would, if invested in the purchase of an immediate life annuity from the National Debt Commissioners through the Post Office Savings Bank, purchase an annuity for the workman equal to 75 per cent, of the annual value of the weekly payment. If the incapacity is not permanent, the lump sum shall be such sum as may be determined by arbitration under this Act. Power is given to the Court to have such lump sum invested or otherwise applied for the benefit of the person entitled. And it is expressly provided that nothing in this paragraph shall be construed as preventing agree- ments being made for the redemption of a weekly payment by a lump sum. For the procedure under this section see Kule 59 (p. 310). Average Weekly Earnings. As the amount of the pay- ments depends on the weekly earnings, it was necessary to provide how that sum was to be computed. This is dealt with in Sched. I. para. 2 (see pp. 198-209). That paragraph is divided into four clauses. (i) By the first it is laid down that average weekly earnings shall be computed in such manner as is best calculated to give the rate per week at which the work- man was being remunerated. And where by reason of the shortness of the time during which the workman was employed or the casual nature or the terms of the employment, it is impracticable to find out what such rate was, regard may be had to the average weekly amount earned by other persons in the same grade employed at the same work by the same employer, or if there is no such person, by persons employed in the same grade and work in the service of other employers in the same district (see pp. 204-207). (ii) The second clause deals with the case where the SUMMARY OF THE ACT 29 workman has entered into concurrent contracts of service with several employers. In such a case his average weekly earnings shall be computed as if he worked all the time for one employer (see p. 207). (iii) The third clause explains * that " employment by the same employer " shall mean employment by the same employer in the same grade as he was employed in at the time of the accident, uninterrupted by absence from work due to illness or other unavoidable cause (see p. 207). (iv) The fourth clause provides that where the employer has been accustomed to pay to the workman any sum to cover special expenses due to the nature of the employ- ment, such sum shall not be reckoned as part of the earnings (see p. 208). B. Amount payable to Total Dependants. Where a workman is killed by an accident his total dependants receive compensation on the scale laid down in Sched. I. para. 1 (a) (i) (see pp. 191-93). That clause enacts that if the workman leaves any dependants wholly dependent upon his earnings they shall receive a sum equal to his earnings in the employment of the same employer during the three years next preceding the injury, or the sum of one hundred and fifty pounds, whichever of those sums is the larger, but not exceeding in any case three hundred pounds, provided that the amount of any weekly pay- ments made under this Act, and any lump sum paid in redemption thereof, shall be deducted from such sum. If the period of the workman's employment by the said employer has been less than the said three years, then the amount of his earnings during the said three years shall be deemed to be one hundred and fifty-six times his average weekly earnings during the period of his actual employment under the said employer. C. Amount payable to Partial Dependants. Where the workman leaves persons partly dependent upon him, the amount of compensation which they are to receive is in no case to exceed the amount payable under the fore- going provisions (i.e., with regard to total dependants), 30 THE WORKMEN'S COMPENSATION ACT, 1906 but subject to that is to be such sum as is reasonable and proportionate to the injury to the said dependants. This is the effect of Sched. I. para. 1 (a) (ii) (see pp. 194-95). D. Amount payable to the Persons who have incurred the Medical and Funeral Expenses of the Deceased Work- man. These can, if there be no dependants, recover as compensation under this Act such sum as these expenses amount to, but they are not to recover more than W. (see Sched. I. para. 1 (a) (iii), p. 195). 4. The Persons Liable to Pay the Compensation. In the ordinary case the compensation is paid by the em- ployer (sec. 1, subsec. 1, p. 47). "Employer" is denned in sec. 13 as including " any body of persons corporate or un- incorporate and the legal personal representative of a deceased employer, and where the services of a workman are temporarily lent or let on hire to another person by the person with whom he has entered into a contract of service or apprenticeship, the latter shall, for the purposes of this Act, be deemed to continue to be the employer of the workman whilst he is working for that other person." There are, however, three cases in which the workman can recover from persons other than the employer. These are dealt with in the sections on (i) Sub -contr acting . (ii) The bankruptcy of the employer. (iii) The owners of ships. (i) Sub-contracting. This is dealt with in sec. 4 (see pp. 112-22). The effect of that section is that where a person (called the principal) for the purposes of his trade or business contracts with any other person (called the contractor) for the execution by the contractor of any work undertaken by the principal, then the principal shall be liable to pay to the workmen employed in that work any compensation to which they would have been entitled if directly employed by the principal. It often happens that the immediate employer of a workman is a man of straw, and this provision in many SUMMARY OF THE ACT 31 cases prevents the workman from being practically de- prived of his remedy. As its object, therefore, is to protect the workman and not to relieve the employer, it is provided by subsec. 2 that if the compensation is paid in the first instance by the principal he shall be indemnified by the contractor. By a proviso to subsec. 1 it is provided that the section shall not apply where the contract relates to threshing, ploughing, or other agricultural work, and the contractor provides and uses machinery driven by mechanical power for the purpose of such work. This is probably due to the fact that in such cases the contractor is more likely to be a substantial man than the farmer who employs him (see pp. 117-18). Subsec. 4 provides that the section shall not apply where the accident occurred elsewhere than on, in, or about premises on which the principal has undertaken to execute the work or which are otherwise under his control (see pp. 119-22). (ii) The Bankruptcy of the Employer. A workman may also in certain circumstances recover compensation from persons other than the employer in the event of the latter's bankruptcy. Sec. 5 deals with this matter (pp. 123-27). By the first subsection, where an employer is bankrupt or has made a composition or is a company in liquidation, and has previously insured himself under this Act, the rights of the employer against the insurer are transferred to the workman. The workman may there- fore take proceedings under this Act against the insurers. By subsec. 2, if the amount insured against is not suffi- cient to cover the workman's claim, he may prove in the bankruptcy for the balance. If the employer has not insured, the workman is given a priority over other creditors by subsecs. 3 and 4. These enact that the workman's claim, up to ^100 in each individual case, shall be included among those debts which in the distribution of the property of a bankrupt or the assets of a company being wound up are 32 THE WORKMEN'S COMPENSATION ACT, 1906 paid in priority to all other debts. And it is also provided that if the compensation be a weekly payment, its value, for the purpose of deciding whether it be worth 100, shall be taken to be the amount of the lump sum for which the weekly payment could if redeemable be redeemed under para. 17 of Sched. I. (q.v., p. 229). (iii) The Owners of Ships. It has already been pointed out that this Act applies to seamen and that it may happen that the person liable to pay the compensa- tion does not reside in the United Kingdom. In such a case the sailor's remedy might be an illusive one, owing to the difficulty of getting at the employer. It is there- fore provided by sec. 11 (see pp. 160-63) that where it is alleged that the owners of a ship as such are liable to pay compensation and that the ship is to be found in any port or river in or within three miles of the coast of England or Ireland, then the judge of any Court of Record in England or Ireland, on its being shown to him that the owners are probably liable to pay compensation and that none of them reside in the United Kingdom, may issue an order for the detention of the ship until the com- pensation is paid or satisfactory security given. It is further provided in subsec. 2 that the person giving security shall be made defendant in any subsequent proceedings to recover compensation. The person giving security is not necessarily the employer, for he may be either the owner, master, agent, or consignee of the ship. So that in this case the workman might recover com- pensation from some person who is not the employer; and there is no provision in the Act by which the employer can be made to indemnify that person (see p. 162). Cases where the Employer is Indemnified. We must next consider the cases where the employer is primarily liable but has a right to be indemnified by some third person. Such cases occur (a) Where the workman has a right of action against a stranger. The circumstances of the accident may SUMMARY OF THE ACT 33 be such as to give the workman both a right of action against a stranger and a right to recover compensation from his employer. In such a case, if the employer is called upon to pay compensation, he has a right to be in- demnified by the stranger (see sec. 6, pp. 128-32). This right can either be enforced by action, or, if both parties consent, by arbitration under this Act (sec. 6, subsec. 2). (b) Where a Number of Employers have employed a Workman who contracts an Industrial Disease. If a work- man who contracts an industrial disease has been in the employ of several employers during the twelve months preceding his disablement, the employer who last employed him is primarily liable to pay compensation, but he has a right to be indemnified by the other employers if the disease is of such a nature as to be contracted by a gradual process (see sec. 8, subsec. 1 (c) iii., pp. 147-48). 5. Procedure. The procedure under this Act may be conveniently divided into two heads 1. Arbitration. 2. Other matters. 1. Arbitration. A. The Tribunals. The Act sets up four different tribunals for conducting arbitrations. (i) The Committee. By Sched. II. para. 1 (p. 235), where any committee exists representative of an employer and his workmen with powers to settle matters under this Act, the committee is empowered to so settle any matter, provided neither party objects by notice in writing sent to the other party before the committee meet to consider the matter. (ii) Arbitrator agreed on by the parties. By Sched. II. para. 2 (p. 236), where there is no committee, or either party objects, or the committee refers the matter, or the committee fails to settle it within six months of the claim, the matter may be referred to a single arbitrator agreed on by the parties. 3 34 THE WORKMEN'S COMPENSATION ACT, 1906 (iii) The Judge of the County Court. By Sched. II. para. 2 (p. 236), in default of agreement on an arbi- trator, the matter is to be settled by the county court judge. (iv) Arbitrator appointed by the County Court Judge. By Sched. II. para. 3 (p. 237), in England only, the matter may be referred by the county court judge, with the authority of the Lord Chancellor, to an arbitrator appointed by the county court judge. And on the death, refusal, or inability to act of an arbi- trator of either class, the county court judge may appoint another (Sched. II. para. 8, p. 246). The necessary modifications in Scotland and Ireland are dealt with in Sched. II. paras. 17 and 18 (see pp 264-66). B. Questions to be Settled by Arbitration. The questions to be settled by arbitration under this Act are (i) Any question arising as to the liability to pay compensation (including any question as to whether the person injured is a workman), unless settled by agreement (sec. 1, subsec. 3, p. 82). (ii) In the case of sub-contracting, any question arising as to the liability of the "contractor" or any other person to indemnify the "principal," unless settled by agreement (sec. 4, subsec. 2, p. 118). (iii) Where the workman has a right to recover com- pensation from his employer and also a right to recover damages against a stranger, any question arising as to the liability of the stranger to indemnify the employer who has paid the compensation (sec. 6, subsec. 2, p. 128). (iv) Any question as to who is a dependant, unless settled by agreement (Sched. I. para 8, p. 215). But if not settled before a payment into court, then the question shall be settled by the county court. (v) Where a weekly payment is reviewed at the request of either party, any question as to the amount of SUMMARY OF THE ACT 35 the altered payment, unless settled by agreement (Sched I. para. 16, p. 225). (vi) Where, in the case of partial incapacity, a weekly payment is commuted for a lump sum, any question as to the amount of such sum (Sched. I. para. 17, p. 229). C. Proceedings on an Arbitration. The various steps to be taken are governed by the rules (see Appendix A). The parties to be joined are dealt with in Kules 2-7. The method of applying for an arbitration is dealt with in Eules 8-12. For the method of giving notices see Eules 13-15, 19-28, and 24-26. For the persons by whom any party may appear see Rule 33 (and see pp. 243-44). And see also the amended rules (published on March 14, 1908 (Appendix J). Costs. The costs of and incidental to the arbitration and proceedings connected therewith shall be in the discretion of the committee, arbitrator, or county court judge, 'as the case may be (Sched. II. para. 7, pp. 244-46). If before a county court judge or an arbitrator appointed by him, such costs are subject to the rules of court. These are Eules 61-64 (see pp. 312-14). In any case the costs are not to exceed the limit prescribed by the rules, and may be taxed as provided in the rules, and such taxation may be reviewed by the county court judge. The solicitor's right to recover costs from his workman client is dealt with in Sched. II. para. 14 (pp. 259-62). The solicitor or agent of a person claiming compensa- tion is not entitled to recover any costs from him, or to claim a lien in respect of such costs, or to deduct such costs from the sum awarded or agreed as compensation, except such sum as may be awarded, on an application being made, by the committee, arbitrator, or county court judge, as the case may be. For the procedure on such applications see Eules 65 and 66 (pp. 314-16.) Appeals. There is no appeal on any question of fact. But a committee or either kind of arbitrator has power 36 THE WORKMEN'S COMPENSATION ACT, 1906 to submit a question of law to the county court judge for his decision ; and his decision of such questions of law or of any question of law arising in any matter which he himself decides, or where he gives any decision or makes any order under this Act, is appealable by either party to the Court of Appeal (Sched. II. para. 4, p. 238). The procedure on such appeals is governed by the rules of the Supreme Court, Order LVIII. Rule 20. An appeal lies from the Court of Appeal to the House of Lords (see p. 241). 2. Other Matters. Other matters of procedure dealt with in this Act concern the duties of A. The judge and registrar of the county court. B. The Home Secretary. C. Medical men. D. Other bodies. A. The Judge and Registrar of the County Court. Apart from arbitration, the judge and registrar have the following ministerial and other duties to perform : 1. Weekly Payments. Where a weekly payment is payable to any person under a disability, the county court judge may order that sum to be paid into court (Sched. I. para. 7, p. 215, and Kule 57, p. 309). 2. Neglect of Children, etc. Where, on application being made in accordance with the rules, it appears to the county court judge that, on account of neglect of children on the part of a widow, or on account of the variation of the circumstances of the various dependants or for any other sufficient cause, an order of the Court or an award as to apportionment amongst dependants or the manner in which any such sum is to be dealt with, ought to be varied, the Court may vary it (Sched. I. para. 9, p. 216, and Eule 58, p. 310). 3. Medical Eeferee. The county court judge has power to summon a medical referee to sit with him (see infra, and Sched. II. para. 5, p. 243). 4. New Arbitrator. In the case of the death or refusal or inability to act of an arbitrator, the county court judge SUMMARY OF THE ACT 37 may, on the application of any party, appoint a new arbitrator (Sched. II. para. 8, p. 246). 5. Investment. Any sum which is ordered to be invested may be invested by the registrar in his name as registrar in the Post Office Savings Bank (Sched. I. para. 10, p. 219). Any such sum may be accepted by the Postmaster- G-eneral as a deposit in the name of the registrar (Sched. I. para. 11, p. 219). No part of any money invested in the name of the registrar in the Post Office Savings Bank shall be paid out except upon authority addressed to the Postmaster- General by the Treasury, or subject to regulations of the Treasury, by the judge or registrar of the county court (Sched. I. para. 12, p. 219). 6. Registration of Memorandum. A memorandum of the amount of compensation, where such amount has been ascertained or varied either by a committee, by an arbitrator, or by agreement, shall be sent by any party interested to the registrar of the county court ; and it then becomes the duty of the registrar, on being satisfied as to its genuineness, to enter such memorandum in a special register without fee, and such memorandum there- upon becomes enforceable as a county court judgment. (Sched. II. para. 9, pp. 247-55). But it is provided that (a) No such memorandum shall be recorded before seven days after the despatch by the registrar of notice to the parties interested. (b) Where the workman seeks to record the memo- randum, and the employer, in accordance with the rules, proves that the workman has in fact returned to work and is earning the same wages as before the accident, the memorandum shall only be re- corded on such terms as seem fit to the county court judge. (c) The county court judge may at any time rectify the register. 38 THE WORKMEN'S COMPENSATION ACT, 1906 (d) Where it appears to the registrar on any informa- tion which he considers sufficient that an agreement as to the redemption of a weekly payment by a lump sum, or an agreement as to the amount of compen- sation payable to persons under disability or to dependants ought not to be registered by reason of the inadequacy of the sum or amount, or by reason of the agreement having been obtained by fraud, undue influence, or other improper means, he may refuse to record the memorandum and refer the matter to the county court judge, who shall make such order as he may think just. And (e) The judge may, within six months after a memo- randum of any agreement as to the redemption of a weekly payment by a lump sum or an agreement as to the amount of compensation payable to persons under legal disability or to dependants has been, recorded in the register, order that the record be removed from the register on its being proved to him that such agreement was obtained by fraud, undue influence, or other improper means, and may make such order as he thinks just. The procedure under this paragraph is governed by Eules 41-50 (pp. 301-304). By para. 10 (p. 255) it is provided that where one of the agreements referred to in para. 9 (d) and (e), supra, is not registered neither the agreement nor a pay- ment under it shall exempt the person liable from his liability to pay compensation unless he proves that the failure to register was not due to any neglect or default on his part. 7. Special Register. It is part of the duty of the registrar to keep a special memorandum of all pro- ceedings in the county court under this Act (Kule 81, p. 322). 8. General. It is provided by Sched. II. para. 12 (p. 257) that where under this Act anything is to be SUMMARY OF THE ACT 39 done in a county court, it shall be part of the duties of the county court and the officers of the county court shall act accordingly. Sched. II. para. 11 (p. 256) deals with the question of which is the proper county court to proceed in. In the ordinary case it is to be the county court in the district of which all the parties reside. If the parties do not all reside in the same district, then the proper court is to be determined in the manner prescribed by the rules (Kule 73, p. 319). The transfer of proceedings from one court to another is dealt with by Eules 74-76 (pp. 320-21). B. The Home Secretary. The Home Secretary, who is referred to in the Act as the Secretary of State, has powers and duties in the following matters : 1. Industrial Diseases (sec. 8). By sec. 8, subsec. 3, he may make rules regulating the duties and fees of certifying and other surgeons (including dentists) under this Act (p. 151). For the rules made under this sub- section see Appendix E. By subsec. 5 he may appoint medical practitioners to have the powers and duties of certifying surgeons under this Act (see p. 152). By subsec. 6 he may make orders extending the number of diseases and processes to which this section applies (see p. 152). Such orders have been made and are set out in Appendix I. By subsec. 7 he may, on certain conditions, require employers in any industry to insure against risks under this section (p. 153). 2. Medical Referees. The Home Secretary may appoint legally qualified medical practitioners to be medical referees for the purposes of this Act (sec. 10, p. 158) . 3. Returns of Compensation. The Home Secretary may direct that in any industry every employer must 40 THE WORKMEN'S COMPENSATION ACT, 1906 annually make a return showing the number of cases in which compensation has been paid and the amount of such compensation, together with such other particulars as the Home Secretary may direct (sec. 12, p. 164). For these regulations see Appendix H. 4. Examination of Workmen. By Sched. 1, para. 15 (p. 222), a workman shall not be required to submit himself to examination by a medical practitioner under pars. 4 and 14 of Sched. I. otherwise than in accordance with regulations made by the Home Secre- tary, or at more frequent intervals than may be prescribed by those regulations. And the same paragraph provides that a medical referee shall conduct his inquiry into a workman's condition subject to such regulations. These regulations are set out in Appendix F. 5. Committee. By Sched. II. para. 16 (p. 262), the Home Secretary may confer on any committee repre- sentative of an employer and his workmen, in regard to any matter in which the committee act as arbitrators or which is settled by agreement submitted to and approved by the committee, all or any of the powers conferred by this Act exclusively on county courts or county court judges, and in such cases may make other necessary modifications. C. Medical Men. The Act deals with three classes of medical men (i) Certifying surgeons. (ii) Medical practitioners. (iii) Medical referees. (i) Certifying surgeons. These officers are appointed under the Factory and Workshops Act, 1901 (see p. 144), and their duties under this Act all arise under sec. 8 (which deals with industrial diseases). By sec. 8, subsec. 1 (i), where the certifying surgeon for the district in which the workman is employed certifies that the workman is suffering from a disease mentioned in Sched. III., and is thereby disabled from SUMMARY OF THE ACT 41 earning his full wages, and the fact is that the disease is due to the nature of his employment, the workman becomes entitled to compensation (p. 143). By subsec. 2 the disease is in certain cases to be deemed to be due to the nature of the employment, unless the certifying surgeon certifies that in his opinion it is not so due (p. 149). By subsec. 4 the date of disablement shall be taken to be such date as the certifying surgeon certifies as the date on which the disablement commenced (p. 151). By subsec. 1 (/), if either the employer or the workman is aggrieved by the action of the certifying surgeon in giving or refusing to give a certificate of disablement or in suspending or refusing to suspend a workman, the matter is to be referred to a medical referee (p. 149). By subsec. 5 the Home Secretary may appoint legally qualified medical practitioners to have the powers and duties of certifying surgeons under this section (p. 152). (ii) Medical practitioners. A medical practitioner is a person registered under the Medical Act, 1858. Their duties as such under this Act are concerned with the medical examination of workmen. By Sched. I. para. 4 (p. 212), when a workman has given notice of an accident, he shall, if so required by the employer, submit himself to examination by a legally qualified medical practitioner provided and paid by the employer. If he refuses to do so, his rights under the Act are suspended during the refusal. By Sched. I. para. 14 (p. 220) a workman receiving weekly payments may in the same circumstances as in para. 4 (supra) be required to submit himself to a medical examination. By Sched. I. para. 15 (p. 222) a workman shall not be required to submit himself to a medical practitioner for examination under paras. 4 and 14 otherwise than in accordance with regulations made by the Home Secre- tary, or at more frequent intervals than may be prescribed OF THE UWl\/FDQnr\/ 42 THE WORKMEN'S COMPENSATION ACT, 1906 by such regulations. These regulations are set out in Appendix F. Notice also that a medical practitioner may be ap- pointed by the Home Secretary to have the powers and duties of a certifying surgeon under this Act (supra). (iii) Medical Eeferees. By sec. 10 (p. 158) the Home Secretary has power to appoint such legally quali- fied medical practitioners to be medical referees for the purposes of this Act as he may, with the sanction of the Treasury, determine ; and provision is made for the pay- ment of their remuneration and expenses. Their duties are (a) Industrial Diseases. Under sec. 8, subsec. 1 (/) (p. 149), where either the employer or the work- man is aggrieved by the action of the certifying surgeon in giving or refusing to give a certificate of disablement, or in suspending or refusing to sus- pend a workman for the purposes of that section, the matter is to be referred to a medical referee, whose decision shall be final. This reference is to be governed by the rules made by the Home Secretary (see Appendix E). By subsec. 4 (a) it is provided that where a medical referee allows an appeal against a refusal by the certifying surgeon to give a certificate, the date of disablement shall be taken to be such date as the medical referee may determine (see p. 151). (6) Examination of Workmen. By Sched. I. para. 15 (p. 222 ) where a workman has submitted him- self to examination by a medical practitioner under Sched. I. paras. 4 and 14 (supra), or has been examined by a medical practitioner selected by himself, then if the employer and workman cannot come to an agree- ment as to the workman's condition or fitness for employment, the registrar may, on application being made by both parties and on payment by the appli- cants of such fee not exceeding 1 as may be pre- scribed, refer the matter to a medical referee. SUMMARY OF THE ACT 43 The medical referee has then to give a certificate as to the workman's condition and his fitness for employ- ment, and that certificate is conclusive evidence as to the matters so certified. It is also provided in this paragraph that when no agreement can be come to between employer and workman on the question of whether the incapacity is due to the accident, the matter may in the same way be referred to a medical referee. If the work- man refuses to be examined by the medical referee, or obstructs the examination, the right to compensa- tion shall be suspended for so long as such obstruction lasts. The regulations made by the Home Secretary under this paragraph are set out in Appendix G. The procedure in applications under this paragraph is governed by Rule 54 (p. 305). (c) Assessor. By Sched. II. para. 5 (p. 243) the county court judge may, if he thinks fit, summon a medical referee to sit with him as an assessor. For the procedure under this paragraph see Rule 52 (p. 304). (d) Eeport to Arbitrator. By Sched. II. para. 15 (p. 262) any committee, arbitrator, or judge may, subject to regulations made by the Secretary of State or the Treasury, submit to a medical referee for report any matter which seems material to any question arising in the arbitration. Such a " report" differs from a " certificate," as the tribunal is not bound to act upon it. The regulations made under this paragraph are set out in Appendix G. The procedure under it is governed by Rule 53 (p. 305). D. Other Bodies. The following persons and bodies also have duties to perform under this Act : (i) The Chief Registrar of Friendly Societies. His 44 THE WORKMEN'S COMPENSATION ACT, 1906 duties are concerned with the certifying and super- intending of " schemes " made for the purpose of con- tracting out of this Act under sees. 3 and 15 (pp. 104 and 187) . The regulations made by him are set out in Appendix D. (ii) Consular Officers. Under sec. 7 (which deals with the application of this Act to seamen) it is provided (by subsec. 1 (c)) that where an injured master seaman or apprentice is left behind in a foreign country, depositions respecting the circumstances and nature of the injury may be taken by any British consular officer in the foreign country and transmitted to the Board of Trade, and shall then be admissible in evidence in all proceedings for enforcing the claim (see p. 134). If the seaman is left in a British possession, the depositions can be taken by any judge or magistrate in that possession. (iii) The Treasury. (a) By sec. 9, subsec. 2, the Treasury is empowered to modify for the purposes of this Act their warrant under the Superannuation Act, 1887, and notwith- standing anything in that Act, or any such warrant, may frame schemes with a view to their being certi- fied by the Registrar of Friendly Societies under this Act (seep. 156). (b) Under sec. 10, subsec. 1, the Treasury have to sanction the appointment of medical referees by the Home Secretary, and have to make regula- tions determining the amount of their remunera- tion (p. 158). For the regulations so made see Appendices E and G. (c) Under sec. 10, subsec. 2, the Treasury have to make regulations regulating the remuneration payable to arbitrators appointed by the county court judge (see p. 158). (d) It is provided by Sched. I. para. 12 that no money invested in the Post Office Savings Bank by the Registrar under this Act shall be paid out except upon authority addressed to the Postmaster-General SUMMARY OF THE ACT 45 by the Treasury, or, subject to regulations of the Treasury, by the county court judge or Registrar (p. 219). (e) Under Sched. I. para. 15 the Treasury have to give their consent to the rule fixing the fee payable to the medical referee under that paragraph (see p. 223). And see Rule 82 (p. 325). (/) Under Sched. II. para. 15 the regulations regulating the method of submitting matters to the medical referee for his report by the committee, arbitrator, or judge have to be jointly made by the Home Secretary and the Treasury (see p. 262). Such regulations are set out in Appendix G. THE WORKMEN'S COMPENSATION ACT, 1906 (6 EDW. VII. C. 58) AN ACT TO CONSOLIDATE AND AMEND THE LAW WITH RESPECT TO COMPENSATION TO WORKMEN FOR INJURIES SUFFERED IN THE COURSE OF THEIR EMPLOYMENT SECTION I 1. If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with the first schedule to this Act. The corresponding section of the Workmen's Compen- sation Act, 1897, is in almost exactly the same words. The only difference is that the word " employment " is limited by "to which this Act applies " (see introductory chapter). In considering the various points which arise, the decisions under the Workmen's Compensation Act, 1897, may accordingly be looked on as authorities. Employment. There is hardly any form of industry to which this Act does not apply. The Workmen's Compen- sation Act, 1897, was experimental and introduced a totally new principle into our legislation. For that 47 48 THE WORKMEN'S COMPENSATION ACT, 1906 reason it was only made applicable to a few industries, which were selected because of their dangerous character. The experiment was found to work well and the principle has therefore by the present Act been extended to all forms of employment. There are, however, still one or two industries of a very special character to which the Act does not apply. (a) The Act does not apply to persons in the naval or military service of the Crown (see sec. 9, subsec. 1, and note thereon, p 156). (b) The Act does not apply to such members of the crew of a fishing vessel as are remunerated by shares in the profits or the gross earnings of the working of such vessel (see sec. 7, subsec. 2, and note thereon, p. 142). (c) There are certain classes of employees who are not workmen within the meaning of this Act, e.g., police- men. This, however, is not because any form of employment is excluded, but is the result of the in- terpretation put upon the word " workman " (see note on sec. 13 at p. 167). Personal Injury by Accident. The meaning of the words "injury by accident" has been the subject of a great number of decisions, both at commoD law and under the Workmen's Compensation Act, 1897. The question is not yet finally settled, but the four following propositions are, it is submitted, established by the cases. (i) The accident must be something fortuitous and unexpected (Hamlyn v. Crown Accident Insurance Company [1893], 1 Q.B. 750). (ii) An internal injury, such as a strain, may be caused by " accident," although brought about without any visible external violence or merely by the muscular effort made by the workman in doing his ordinary work (Fenton v. Thorley [1903], A.C. 443). (iii) If a disease is brought about by a single unex- pected and fortuitous event, it is " an injury by acci- dent" (Brintons, Ltd. v. Turvey [1905], A.C. 230). SECTION I 49 (iv) If a disease is brought about by a gradual infection, it is not an injury by accident (Steel v. Cammell Laird <& Co. [1905] , 2 K.B. 232). The first case to consider is Hamlyn v. Crown Acci- dental Insurance Company ([1893], 1 Q.B. 750). In that case the Court of Appeal had to decide what was the meaning, in a policy of insurance, of the clause " any bodily injury caused by violent, accidental, external, and visible means." The plaintiff had stooped down to pick up a marble, and in doing so had dislocated the cartilage of his knee. He had had no previous weakness of the knee or knee-joint. The Court held that this was bodily injury caused by violent, accidental, external, and visible means. Lopes, L. J., uses this expression (at p. 754) : " The cause of the injury was accidental in the sense that the injury was a casualty, and unforeseen, and unexpected." In Pugh v. London, Brighton and South Coast Railway Company ([1896] 2 Q.B. 248), the plaintiff was a signal- man in the employ of the defendant [railway company, who had insured him against injury by accident in the performance of his duties. While in his signal-box he saw a train approaching, and perceived from the condition of one of the carriages that an accident was imminent. He was able to make a sign to the driver, who stopped the train in time to prevent a disaster ; but the excitement and fright caused by this incident so worked upon the plaintiff's nervous system that he was incapacitated from work for a considerable period. It was held that this was an accident. Lord Esher says : " The fright which he underwent seems to me to be the accident which happened in this case." In Lloyd v. Sugg ([1900] 1 Q.B. 481), the respondent claimed compensation under the Workmen's Compensa- tion Act, 1897. At the time of the accident the respondent was holding a " flatter " on the anvil for another work- man, and the latter by accident struck the wrong end of the flatter and jarred the respondent's hand. In conse- 4 50 THE WORKMEN'S COMPENSATION ACT, 1906 quence of this the hand became swollen and gout in the hand was brought on. The doctor who attended the respondent stated that he had attended the respondent previously to the accident for gout in the hand, and that he thought the swollen hand was caused by gout brought on by the jar. This was held by the Court of Appeal to be evidence of injury by accident. A. L. Smith, L.J., said : " The evidence showed that the miss-hit by the hammer jarred the respondent's hand. That miss-hit was an accident." In Thompson v. Arlington Coal Company, Ltd. (84 L.T. 412), a miner was employed in hewing coal, and while so engaged a piece of coal worked itself into his knee, with the result that blood-poisoning set in and he died. The Court of Appeal held this to be an accident. A. L. Smith, M.E., said : " If any one were to kneel down ,in a drawing-room and a needle ran into his knee, that would clearly be an accident." In Timmins v. Leeds Forge Company, Ltd. (16 T.L.B. 521), a man was employed in moving heavy planks from one pile to another. During a frost the planks became frozen together, so that it was difficult to separate them. In attempting to do so the workman sustained an injury. On these facts the Court of Appeal held that there was evidence on which the county court judge could find that the injury was caused by an accident. On the other hand, in Walker v. Lilleshall Coal Com- pany ([1900] 1 Q.B. 481) a man, who had a blister on his hand, was made ill by red lead getting into the blister. This was not an accident. In Hensey v. White ([1900] 1 Q.B. 481), which has now been expressly overruled by the House of Lords in Fenton v. Thorley ([1903] A.C. 443), a man who suffered from inflammation of the stomach attempted to move a wheel which had become fast, and thereby fatally injured himself. It was held that there was no evidence of an accident, the Court of Appeal founding their judgments on Lord Halsbury's speech in Hamilton Fraser & Co. v. SECTION I 51 Pandorf (12 A.C. 518). And compare with this the case of Roper v. Greenwood (83 L.T. 471), where a woman internally strained herself while at work as a boxmaker, and it was held that this was not an accident. The three cases of Hensey v. White, Lloyd v. Sugg & Co., and Walker v. Lilleshall Coal Company, Ltd., are reported together in the Law Reports ([1900] 1 Q.B. 481). The combined headnote there is : " The word ' acci- dent,' as used in the Workmen's Compensation Act, 1897, involves the idea of something fortuitous and unexpected. Where a workman suffers injury while doing his ordi- nary work in his ordinary way, and the primary and efficient cause of the injury is his diseased or impaired physical condition at the time, the injury is not caused by accident within the meaning of the Act. Where, how- ever, injury is caused to a workman by some fortuitous and external event, it is caused by accident within the meaning of the Act, although the injury may be aggravated by his physical condition at the time of the accident." So far as this statement is gathered from Lloyd v. Sugg <& Co. and Walker v. Lilleshall Coal Company, it is still good law, but Hensey v. White has been over- ruled by the House of Lords in Fenton v. Thorley ([1903] A.C. 443). In that case the workman was em- ployed in working some machinery, and ruptured himself by an act of over-exertion in trying to turn a wheel. The House of Lords decided that this was an injury by acci- dent, expressly overruling Hensey v. White. They said that the word " accident "in the Act of 1897 is used in a popular sense, and that therefore too much reliance should not be placed on constructions put upon insurance policies and other contracts. The following passage occurs in Lord Robertson's speech at p. 452 : " Much poring over the word ' accident ' by learned counsel has evolved some subtle reasoning about these sections. I confess that the arguments seem to me to be entirely over the heads of Parliament, of employers, and of work- men. No one out of a law-court would ever hesitate to 52 THE WORKMEN'S COMPENSATION ACT, 1906 say that this man met with an accident, and, when all is said, I think this use of the word is perfectly right. The word ' accident ' is not made inappropriate by the fact that the man hurt himself. This use is indeed directly sanctioned by the Act itself ; for sec. 1, subsec. 2 (c), plainly implies that an accident giving right to compensa- tion may be attributable to the fault of the injured man himself. In the present instance the man by an act of over-exertion broke the wall of his abdomen. Supposing he had by the same act broken his leg, the question would be the same. But suppose the wheel had yielded and been broken by exactly the same act, surely the breakage would be rightly described as accidental. Yet the argu- ment against the application of the Act is in this case again exactly the same that there is nothing accidental in the matter, as the man did what he intended to do. The fallacy of the argument lies in leaving out of account the miscalculation of forces, or inadvertance of them, which is the element of mischance, mishap, or misadven- ture." In this case the House of Lords cited with approval the decision of the Court of Session in Stewart v. Wilsons and Clyde Coal Company (5 P. 120), where a workman strained his back while attempting to replace a derailed coal-hutch on the rails. Lord Maclaren in that case said : "I think it is impossible so to limit the scope of the statute, and if a workman, in the reasonable performance of his duties, sustains a physiological injury as the result of the work he is engaged in, I consider that this is accidental injury in the sense of the statute." In accordance with this principle is the decision in Boardman v. Scott ([1902] 1 K.B. 43), where a man strained himself by lifting a heavy beam. It was held that this was an accident. By this time therefore two propositions were settled (i) that an accident is something fortuitous and unex- pected ; and (ii) that an internal injury, such as a strain or collapse from a fright, may be caused by an acci- SECTION I 53 dent, although brought about without any visible external violence or merely by the muscular effort made by the workman in doing his ordinary work. The question then arose as to whether an infectious disease brought on by the " accidental " entering of a bacillus into the workman's system could be an "injury by accident " within the meaning of this Act. This point came before the House of Lords in the case of Brintons, Ltd., v. Turvey ([1905] A.C. 230). There the workman was employed in sorting wool in a factory, and while he was so engaged a bacillus passed from the wool into his eye and infected him with anthrax, from which he died. The majority of the House of Lords held this to be an injury by accident. Lord Halsbury in his speech explained that in one sense nothing is an accident. If we knew enough about physical causes, we could tell with certainty where any particle of dust swept by a storm would alight. Therefore in construing this Act we must put the popular interpretation on the word " accident." That interpretation excludes idiopathic diseases, but in- cludes an illness brought about by an external happening. Thus anthrax is an injury by accident, the accident being the entry of the bacillus into the body, and so is tetanus, which is brought on by a cut or scratch. But even if the disease is brought on by a single event, it is not an injury by accident, unless such event is for- tuitous and unexpected. Thus where a workman con- tracted "enteritis" through a bacillus attacking his lungs, it was held not to be an accident, as it was a well-known risk of the particular employment in which the workman was engaged (Broderick v. London County Council [1908], 2 KB. 807). On the other hand, an illness brought on gradually by the unhealthy nature of the employment is not an " injury by accident." This is the result of the decision in Steel v. Cammell Laird d Co., Ltd. ([1905], 2 KB. 232) . In that case the workman was engaged in smearing red and white lead upon rope yarn with his hands. 54 THE WORKMEN'S COMPENSATION ACT, 1906 Gradually, as a result of this work, his system became saturated with lead. In time he was seized with cramp, and finally became paralysed and unfit for work. The Court of Appeal held that this was not an injury by accident, as it was not due to a single unexpected event. The Court laid stress on the fact that it would be im- possible in such a case to fulfil the conditions of sec. 2, subsec. 1, of the Workmen's Compensation Act, 1897, as to giving notice of the day on which the accident occurred. Steel v. Cammell Laird dc Co. was followed in Mar- shall v. East Holy well Coal Company, Ltd., and Gorley v. Owners of Backworth Collieries. These two cases were heard together, and are reported at 21 T.L.E. 494. In the first one a miner had contracted a disease of the hand, known as "beat hand," from continually jarring his hand as he used his pick. In the other a miner had contracted the similar disease of "beat knee" from the friction caused to his knee by continual work in a kneeling position. In both cases the Court held that there was no injury by accident. Collins, M.R., said "an accident must be something which is capable of being assigned to a particular date, and which was in the ordinary and popular sense an accident." But in this connection the case of Golder v. Caledonian Eailway (5 F. 123), should be noticed. There the evidence was that previous to the accident the workman was suffering from a disease, nephritis, which would have caused his death in a few years. The accident accelerated his death. It was held that the death was due to the accident. And in Ismay v. Williamson ([1908] A.C. 437) the majority of the House of Lords decided that it was an " accident " where a stoker on board a ship fell into a faint from heat stroke and died. These cases therefore establish these two further propositions with regard to diseases : (iii) If the disease is brought about by a single unexpected and fortuitous event, it is an " injury by accident." (iv) If the disease is brought about by a gradual infec- tion, it is not an " injury by accident." SECTION I 55 Besides the cases dealt with above, the following throw light on the meaning of " accident " : Sinclair v. Maritime Passengers Company (30 L.J.Q.B. 77) ; Winspear v. Acci- dent Insurance Company, Ltd. (6 Q.B.D. 42) ; Martin v. Travellers Insurance Company (1 F. & F. 505). Sec. 8 of this Act gives the workman a right to be compensated if he contracts certain specified diseases, although the circumstances do not amount to " injury by accident." It may therefore sometimes happen that the workman has an alternative remedy, and has to choose whether to proceed under sec. 1 or sec. 8. His advisers would then have to consider which date it was more advisable to treat as the one on which the right to com- pensation accrued, the date of the accident or the date of the " disablement or suspension " mentioned in sec. 8. This might be important if his wages at these two dates were different. On this point see the note to sec. 8 at p. 145. Arising out of and in the course of the employment. Whether or not a particular accident arises out of or in the course of the employment is principally a question of fact, but certain principles have been laid down in the cases. Two classes of cases arise as to the meaning of these words, which occur also in the Act of 1897 (a) Cases as to the time and place where the accident occurs. (b) Cases as to the nature of the act which causes the injury. (a) Cases as to the Time and Place where the Accident occurs. There are a great number of reported cases on this point, and it is not easy to reconcile them ; but it is submitted that the two following propositions may be elicited 1. The workman is protected during the hours of employment, and for the rest of the day is in no better position than a member of the public (see Benson v. The Lancashire and Yorkshire Railway Company [1904], 1 K.B. 242). But " work" and " employment" are not 56 THE WORKMEN'S COMPENSATION ACT, 1906 co-extensive, and the " employment " may have com- menced before any work has been done (Holness v. Mackay and Davis [1899], 2 Q.B. 319). 2. The workman is protected on his way to and from work so long as he is properly on premises under the control of his employer (see per A. L. Smith, L.J., in Holness v. MacJcay, supra). In Holness v. Mackay and Davis ([1899], 2 Q.B. 319) the employers were a firm of contractors who were at work upon a railway siding. This siding could only be reached by walking for a considerable distance on the railway company's premises. A workman in the employ of the contractors, while on his way to his work at the siding on a foggy morning, seven minutes before the hour for the commencement of the day's work, was run over by a train and killed. It was held by A. L. Smith, L. J., and Vaughan Williams, L.J. (Eomer, L.J., dissenting), that it was no part of the contract of employment that the employment should include the time taken in getting to and from the work, that under the cirumstances the contractors owed no duty to the workman while proceeding to his work, and that therefore the accident did not arise out of and in the course of the employment. A. L. Smith, L.J., in his judgment draws a distinction between places which are and places which are not under the employer's control. He says: " It has been urged on behalf of the respondent that the case is like that of a man who is employed in a large quarry and who is killed in the quarry while going to his work in a particular portion of it, or that of a man who, while going to his work on the upper floor of a large factory, is killed in a lower floor of the factory while on his way to his work. But those are very different cases ; there the employer has the control over the whole quarry or factory, and I am not prepared to say that an accident happening in a downstairs room to a man on his way to his work in an upstairs room would not be within the Act, but I do not decide it ; I leave this open. With SECTION I ",7 all respect to the learned counsel's argument, those cases are very different ; in the case of a quarry or a factory the employer has the control over the whole of the premises ; here the appellants had no control over the railway premises except that part where the work under their contract was being actually performed, for the mere licence to use the premises to get to the locality of the work gave the contractors no right of control over the portion along which they passed or over the trains running thereon. The present case seems to me like the case of a man who meets with an accident while passing along a highway or any other way in order to get to his work. I do not think that it was part of the contract of employ- ment that the employment should extend till the deceased got to the place where his work was, or rather should include the time taken in getting to that place, nor can I hold that he had in contemplation of law begun his work when he had not got to the place where his work lay and the time for commencing work had not arrived." His lordship then distinguished this case from two cases at common law, which had been quoted in argument, Brydon v. Stewart (2 Macq. 30), where a pitman wished to come to the surface on business of his own, and was killed by the insecure state of the shaft ; and Tunney v. Mid- land Railway Company (L.E. 1 C.P. 291), where a work- man was injured in a pick-up train on his way to work. In both these cases the conveyance of the workman to and from the work was part of the contract of service. We may take it, therefore, that the protection of the Act extends to cases where the workman is properly on premises under the control of his employer for the purpose of going to or returning from his work. The other cases here given are merely illustrations of this principle. In Gibson v. Wilson (38 S.L.E. 450) the workman was employed in repairing a church. On going to his work one morning he found the gate of the churchyard locked. He therefore proceeded to climb the railings and in doing so spiked his foot. This caused tetanus, from which he 58 THE WORKMEN'S COMPENSATION ACT, 1906 died. It was held that this was not an accident arising ont of and in the course of his employment the work- man was not at the time on premises under the control of his employer. In Dories v. Ehymney Iron Company (16 T.L.R. 329) the appellant was a collier. His employers owned a line of railway, along which they ran a train to take the colliers to and from their homes. The colliers did not pay for the use of the train, and it was at their option whether or not they used it. The appellant was injured in alighting from this train at a spot three-quarters of a mile from the colliery, whilst returning from work. The Court of Appeal held that this did not arise out of or in the course of his employment. In Benson v. The Lancashire and Yorkshire Eaihcay Company ([1904], 1 K.B. 242) an engine-driver in the employ of a railway company had, in order to commence his day's work, to go in the morning to the company's engine-shed. His proper route to the engine-shed was through a gate opening from the public road on to the railway, and thence by a pathway which did not cross the rails. One morning, on getting through the gate, instead of going along the pathway towards the engine- shed, he went in the opposite direction towards the signal- box, in order to get some information for his own purposes from the signalman. This box was in the middle of the lines. After obtaining the information he required, he proceeded from the signal-box towards the engine-shed along the railway. Some time afterwards he was found lying on the line seriously injured, having presumably been run down by an engine, and he subsequently died of his injuries. It was held that this was not an accident arising out of and in the course of his employment. Collins, M.R., said : " It seems to me, with regard to a person who is employed for a certain period, either of the day or night, that during the period that he is so em- ployed he is entitled to the privileges given by the Act ; but from the time when he leaves off work, say in the SECTION I 59 evening, until he arrives at the spot where his employ- ment is to commence again next morning, he is in the same position, as regards his employers, as any other member of the public, and is not within the protection of the Act. If he chooses to take a dangerous route to that spot, he takes it at his own risk." On the other hand, however, there are certain cases where a workman has recovered compensation although he had not actually commenced to work at the time of the accident. But these cases are not inconsistent with the dictum of the learned Master of the Bolls cited above, for in accordance with the principle laid down in Holness v. Mackay and Davis (supra) it may well be that the employment has commenced although no work has been done. For instance, in Holmes v. Great Northern Railway Company ([1900], 2 Q.B. 409), an engine-cleaner who had been employed by the Great Northern Eailway at King's Cross was told one evening that on the next day he was to work at Hornsey. Accordingly on the next morning he presented himself at King's Cross and was conveyed by the company free of charge in one of their trains to their station at Hornsey, reaching there a short time before the hour for commencing work in the shed. Shortly before the hour at which work began he was killed by a passing train. It was held that his employment commenced when he got into the train to be conveyed to his work, and not on his arrival at the engine- shed, and therefore that the accident arose out of and in the course of his employment. Somewhat similar is the case of Sharp v. Johnson & Co., Ltd. ([1905], 2 K.B. 139). Workmen in the employ of a building contractor were brought daily by train from London to certain building works in the country. The only available train arrived twenty minutes before the time for starting work. The work- men were provided with tickets, which they had to give in to a collector before starting work. It was their custom to give in their tickets first and then proceed to a 60 THE WORKMEN'S COMPENSATION ACT, 1906 refreshment shed on the premises, where they waited till the twenty minutes had elapsed. One of the workmen was injured whilst on his way to give up his ticket. It was held that this was an accident arising out of and in the course of his employment. In Blovelt v. Sawyer ([1904] 1 K.B. 271) a workman was paid by the hour for the number of hours per week that he was actually engaged on his work, not including the mid- day dinner-hour. During that hour he was at liberty to stay and take his meal on the premises or to go elsewhere. He stayed on the premises and sat down to eat his dinner, and while so doing a wall fell upon him and he was injured. It was held that during the dinner- hour there had been no break in the employment of the workman, and therefore that he was entitled to claim compensation. In Keenan v. Flemington Coal Company (5 F. 164), a miner left the pithead to go and get a drink of water. Whilst so doing he was killed by a runaway hutch. It was held that this accident arose out of and in the course of his employment. In Caton v. Summerlee and Mossend Iron Company (4 F. 989) a workman was killed whilst going home from work on a private line of railway, the property of his employer, at a distance of 230 yards from their works. This was held to arise out of and in the course of the employment. And in Mackenzie v. Coltness Iron Com- pany (6 F. 8) a workman was awarded compensation where, on his way to work at a mine, he had slipped and injured himself on a line of railway, the property of his employers. In Haley v. United Collieries ([1907], S.C. 214), a miner left his work by a short cut, which was on the employers' premises but was not the proper way for him to go by. It was held that an accident which he sustained while going along this short cut did not arise out of and in the course of his employment. An important case is Mitchell v. Glamorgan Coal Company (23 T.L.K. 588). There a workman had died of blood- SECTION I 61 poisoning caused by an injured finger. The only evidence was that his finger was all right when he left home one morning, but was injured when he returned. It was held by the Court of Appeal that the county court judge might draw the inference that the accident arose out of and in the course of the employment, for accidents were more likely to happen to a man while at work than on his way backwards and forwards. In Cremin v. Guest, Keen, and Nettlefolds, Ltd. ([1908] , 1 K.B. 469), the first case on this point under the present Act, it was a part of the contract of employment between a colliery company and their miners that the latter should be conveyed to and from the work by train free of charge. A miner was killed while so travelling, and it was held that the accident arose out of his employment. Cozens- Hardy, M.K., pointed out that although this Act omits the "local condition" of the accident happening "on, in, or about" premises, it is still as necessary as it was under the old Act to prove that the accident arose " out of and in the course of the employment." And in Bobertson v. Allan (98 L.T. 821) it was held that the accident arose "out of and in the course of the employ- ment," where the steward of a ship, who had been on shore and was the worse for drink, fell into the hold and was killed while attempting to board the ship by means of the " cargo skid." But in Whitbread v. Arnold (99 L.T. 103), where a shepherd was killed by falling from a waggon in which he was being driven to a farm for the purpose of commencing his employment, it was held that, although there was a contract of service, the employment did not commence when he left his home in the farmer's waggon, but would have commenced at the earliest period at which he could have begun his duties, and, therefore, that the accident did not arise " out of and in the course of the employment." Other cases which throw light on this point are Vickery v. Great Eastern Railway Company (14 T.L.R. 562;, Todd v. Caledonian Railway (36 S.L.K. 784) 62 THE WORKMEN'S COMPENSATION ACT, 1906 Me Allen v. Perthshire County Council (8 F. 783), Lowry v. Sheffield Coal Company (24 T.L.K. 142), Macdonald v. Owners of the s.s. "Banana" ([1908] 2 KB. 926). (b) Cases as to the Nature of the Act which causes the in- jury. The other class of case which has to be considered in construing the expression " arising out of and in the course of the employment " arises where it is the nature of the act which caused the injury which has to be considered. This is quite a distinct point from the questions of time and place which have just been dealt with. Although this also is chiefly a question of fact, the cases enable us to see certain broad principles. Thus we may say generally (i) that so long as the workman is about his master's business he is within the Act and (ii) that so soon as he ceases to be about his master's business he is without the Act. But the first of these propositions needs qualifying. For it may be that while engaged on the master's business the workman is injured by the wilful act of a stranger, or by some outside agency, such as lightning. One has then to consider whether or not the risk of such injury is incidental to the particular employment. If it is as, e.g., if an engine-driver is killed by a stone thrown at his train by a stranger, he is within the Act (Challis v. London and South Western Railway Company [1905], 2 K.B. 154, infra, p. 66). But if it be not so incidental, then he is without the Act as, e.g., if he is hurt as the result of horseplay between his fellow- workmen (Falconer v. London and Glasgow Engineering Company, 3 F. 564). The first case to consider is Smith v. Lancashire and Yorkshire Railway Company ([1899], 1 Q.B. 141.) There a ticket collector got upon the footboard of a train after it had started, not for any object of his employment, but to talk to a passenger for his own amusement. He was injured in getting off. The Court of Appeal held that this was not an accident arising out of his employment within sec. 1 of the Workmen's Compensation Act, 1897, SECTION I 63 and he was not entitled to recover compensation. The case of Lowe v. Pearson ([1899] 1 Q.B. 261) is somewhat similar in principle. There a boy was employed in a pottery, and it was his duty to make balls of clay and hand them to a woman i working at a machine, and he was forbidden to interfere in any way with the machinery. He sustained an injury through attempting to clean the machine while the woman was absent. Here also the Court of Appeal decided that the accident did not arise out of and in the course of his employment. A. L. Smith, L.J., points out that this is not a case of a servant doing something in an emergency in his master's interest ; the boy was doing something which he had no right to do and which was in no sense a part of his employment. The case of the emergency suggested by A. L. Smith, L.J., in the last case arose in Eees v. Tho mas ([1899] , 1 Q.B. 1015). There a fireman employed in a coal-mine was, in the course of his duty, carrying a report of the state of the mine from the pit's mouth to the office ; the horse drawing the tramway truck in which he was ran away, and in endeavouring to stop it he fell and was killed. The Court of Appeal held that this case fell within the Act. A. L. Smith, L.J., said: " It is said that it did not arise out of his employment, because it was the result of a voluntary act on his part that is, of his attempt to stop the horse. But the deceased was acting in the interest of his master in an emergency which suddenly arose, and in which any one would, I should think, have tried to do the same thing." In the same way in the Scotch case of Devine v. Caledonian Railway (1 F. 1105) compensation was awarded to a carter who was injured while trying to stop his horse, which had run away from in front of his master's premises ; and compare with this Goslan v. Gillies ([1907], S.C. 68), where a clerk in engineering works left his own task to assist a fellow-workman in carrying a load, and was injured whilst so doing. This 64 THE WORKMEN'S COMPENSATION ACT, 1906 case was held to be within the Act ; also London and Edinburgh Shipping Company v. Brown (7 F. 488), where a workman in the employ of a stevedore volunteered to go into the hold of a ship to rescue a fellow-workman overcome by noxious fumes, compensation was awarded ; compare also Menzies v. M'Quibban (2 F. 732). In Harrison v. WhitaJcer (64 J.P. 54) a boy was employed to grease the wheels of railway trucks. Having greased all that were ready, and while waiting for more to come up, he sat down on a point lever in front of a fire which was a short distance away. Seeing an engine coming up and thinking that the points were in the wrong position, the boy pulled the lever, but the engine forced the points open, with the result that he was thrown against the engine by the lever and injured. It was held by the Court of Appeal that under these circumstances the county court judge was right in awarding compensation. In Whitehead v. Reader ([1901], 2 K.B. 48) a work- man was employed as a carpenter, and had, as part of his duty, to sharpen his tools on a grindstone rotated by machinery. He had received orders not to touch the machinery. In spite of this, he endeavoured to replace the band of the machine, which had slipped from its position. In so doing he was injured. It was held by the Court of Appeal that this was an accident arising out of and in the course of his employment, Collins, L. J., said : "I agree with what has already been pointed out, that it is not every breach of a master's orders that would have the effect of terminating the servant's employment so as to excuse the master from the con- sequences of the breach of his orders. We have to get back to the orders emanating from the master to see what is the sphere of employment of the workman, and it must be competent to the master to limit that sphere. If the servant, acting within the sphere of his employment, violates the order of his master, the latter is responsible. It is, however, obvious that a workman SECTION I 65 cannot travel out of the sphere of >his employment without the order of his employer to do so; and if he does travel out of the sphere of his employment without such an order, his acts do not make the master liable either to the workman under the Workmen's Compen- sation Act, 1897, or to third persons at common law." The opposite case to this is Smith v. South Normanton Colliery Company, Ltd. ([1903], 1 K.B. 204). In that case a miner disobeyed the orders of his superior, and was therefore suspended from work. Men were not allowed to remain in the colliery when not at work, and this man was ordered to wait at the pit bottom till the cage ascended. Instead of doing so, he waited somewhere else in the mine, and was injured by a fall of coal while so waiting. It was held that this was not an accident arising out of or in the course of his employment. Notice also the case of Pomfret v. Lancashire and Yorkshire Railway Company [1903], 2 K.B. 718, where it was held that the burden of proving that the accident arose out of and in the course of the employment is on the applicant. A workman was killed by falling from a train in which he was travelling. This was admitted to be in the course of his employment, and the only question in dispute was whether the accident arose " out of " his employment. There was no evidence, one way or the other, as to how he came to fall out. The county court judge had made an award, but the Court of Appeal sent the case back to him. On the further hearing, evidence as to how the accident came about was forthcoming, and a second award was there- fore upheld by the Court of Appeal. It only remains to consider the cases referred to above, where the injury has been caused by the wrongful act of a stranger. The first of these is Falconer v. London and Glasgow Engineering Company (3 F. 564), where a work- man in the course of his employment met with an o 66 THE WORKMEN'S COMPENSATION ACT, 1906 accident caused by his fellow-workmen, who, at the time, were not engaged at their work, but were indulging in horse-play. It was held by the Court of Session that these facts did not bring the workman within the Act. On the other hand, in Challis v. London and South Western Railway Company ([1905], 2 KB. 154) compen- sation was awarded to the dependants of a workman under the following circumstances. The deceased was an engine-driver, and, while his train was passing under a bridge a boy on the bridge wilfully dropped a stone on to the train. The stone broke the glass of the cab. Fragments of broken glass entered the deceased's eye and caused the injuries from which he died. Collins, M.R., founded his judgment on the fact that the throwing of stones at railway trains is so common and well-known a thing as to be a risk incidental to the employment of an engine-driver. " The interpretation," said his lordship, " of the words ' accident arising out of and in the course of the employment ' appears to me necessarily to involve the consideration of the question what risks are commonly incidental to the particular employment in question." This case must be distinguished from Armitage v. Lancashire and Yorkshire Railway Company ([1902], 2 K.B. 178), where one boy, throwing a piece of iron at another, missed his mark and hit the applicant. This act of the first boy had no relation whatever to the employment, nor was the risk of such a mishap inci- dental to the employment ; and therefore compensation was not awarded. And this has been followed in the recent case of Fitzgerald v. Clarke ([1908], 2 K.B. 796), where the workman was injured as a result of the tortious act of his fellow workmen, who had hoisted him up in a crane, from which he fell. It was held that this accident did not arise "out of and in the course of the employment." Wicks v. Dowell d Co., Ltd. ([1905], 2 K.B. 225), is a curious case. A workman employed in unloading coal from a ship, who was required in the course of his SECTION I 67 duty to stand by the open hatchway through which the coal was being brought up from the hold, was seized with an epileptic fit while at work and fell into the hold and was seriously injured. It was held in the Court of Appeal that regard must be had to the proximate cause of the accident resulting -in the injury, which was to be found in the necessary proximity of the workman to the hatchway; that the accident therefore arose " out of" as well as "in the course of" his employment, and he was entitled to compensation. And in Andrew v.Failsworth Industrial Society ([1904] , 2 K.B. 32), where a workman had been killed by lightning, the Court held that, as the place where the man worked was an exposed one, likely to be struck by lightning, the accident arose out of and in the course of the employment. And compare this with Eowland v. Wright (24 T.L.R. 852), where the workman was bitten by a cat which was kept in the stable where he was employed. It was held that this was an accident arising " out of and in the course of his employment." Cozens-Hardy, M.K., points out that the result might have been different if the bite had been caused by a strange cat. In Collins v. Collins ([1907], 2 I.E. 104) some pipes were being laid in a street by a contractor, and they had been broken several times by some malicious people. A workman was set to guard them. A fresh attempt was made to break the pipes, and a fight ensued, in which the workman was killed. It was held that this was not an accident arising out of and in the course of his employ- ment. In Me Allen v. Perthshire County Council (8 F. 783) a roadman was injured in stepping off a steam-roller, the property of his employers. It was no part of his duty to go on the roller, but he had done so to get up steam before the engineer arrived, to oblige the engineer. Held, that the accident did not arise out of and in the course of his employment. In Losh v. Evans (51 W.K. 243) the applicant was a 68 THE WORKMEN'S COMPENSATION ACT, 1906 " brow girl " at a colliery. It was no part of her duty to start or stop the engine. Nevertheless, she did so and was injured. It was held that the accident did not arise out of and in the course of her employment. The following cases may also be referred to as explain- ing the meaning of these words : Cowler v. Moresby Coal Company (1 T.L.E. 575) ; M' Nicholas v. Dawson and Son ([1899], 1 Q.B. 773] ; M'Nicol v. Spiers, Gibbs, & Co. (1 F. 604); Tod v. Caledonian Eailway Company (1 F. 1047) ; Callaghan v. Maxwell (2 F. 420) ; Logue v. Fuller- ton (3 F. 1006) ; Goodlet v. Caledonian Eailway Company (4 F. 986) ; Mclntyre v. Eodger (6 F. 176) ; Morris v. Lambeth Borough Council (22 T.L.E. 22); Hendry v. Caledonian Railway Company ([1907], S.C. 732). Workman, employer. See the note on sec. 13 for the meaning of these terms. Liable to pay. This does not give to the workman a right of action in any court, but if a dispute arises he may institute arbitration proceedings in accordance with the second schedule to this Act (see note on arbitra- tion, pp. 33-36). Compensation. For scale of compensation, etc., see notes on the first schedule (pp. 191-96). The compensation is in lieu of wages, and not an addi- tion to them. Therefore, where a workman had received the maximum weekly payments for some weeks and was not dismissed, and afterwards commenced an action for his wages for the period during which he had received compensation and had done no work, the action was dis- missed (Elliott v. Liggens [1902], 2 K.B. 84). Sec. i, 2. Provided that (a) The employer shall not be liable under this Act in respect of any injury which does not disable the workman for a period of at least one week from earning full wages at the work at which he was employed. SECTION I 69 This proviso differs from the corresponding one in the Workmen's Compensation Act, 1897, inasmuch as the period of disablement is reduced from two weeks to one week. The expediency of this change is very doubtful. If trifling injuries can be made the subjects of compensa- tion, it will in many cases be as expensive to the employer to defend himself as to pay, and this fact will no doubt be present to the minds of those who are disposed to make dishonest claims. This proviso should be read in conjunction with proviso (a) to Sched. I. sec. 1. (see p. 197). The combined result of the two provisos is this : (i.) If the injury disables the workman for less than a week, no compensation is payable. (ii.) If the injury disables the workman for more than one and less than two weeks, compensation is payable only in respect of the part of the second week during which the disablement lasts, and nothing is payable in respect of the first week. (iii.) If the injury disables the workman for a period of two weeks or more, then compensation is payable in respect of the whole period of disability. Disable the workman. It is a question of fact in each case whether the workman is so disabled or not. If the workman is earning as much as before the accident, but at some other employment, he is still entitled to an award ; and the proper course is to adjourn the arbitra- tion proceedings so that the amount of compensation may be fixed at a later period, should the wage-earning capacity of the workman decrease as a result of the injury. This was the course taken in Chandler v. Smith ([1899] , 2 Q.B. 506). In that case a workman was employed as foreman in a carpet-weaving factory ; his principal duty was to supervise the hands, but he also, to the knowledge of his employer, used to set up and adjust the machines. While adjusting a machine he received an injury neces- sitating the amputation of his thumb ; he continued, however, to attend regularly to his work, only absenting 70 THE WORKMEN'S COMPENSATION ACT, 1906 himself from the factory for a sufficient time to enable him to have his hand dressed. He was incapacitated by the accident from setting up and adjusting the machines, and his work was afterwards confined to the supervision of the hands. His employer continued to pay his wages at the same rate after as before the accident ; but it was admitted that, should he leave his employer's service, his wage-earning power as a foreman in any other factory would be materially decreased. It was held by the Court of Appeal that as the workman had been prevented by reason of the accident from doing a substantial part of the work at which he had previously earned his wages, he had been " disabled for two weeks from earning full wages at the work at which he was employed ' ' ; and therefore his right to an award was not barred by the proviso in the Act of 1897 which corresponds with this one. And it was further held that as the workman had hitherto suffered no pecuniary loss, the proper course was to make a declaration of the liability of the employer, leaving the amount and the duration of the compensation to be fixed upon an application to vary the award, should the work- man at any future time be unable by reason of the accident to earn the same wages. In Irons v. Davis d Timmins, Ltd. ([1899] , 2 Q.B. 330), the same result was obtained in another way. There a lad was earning 9s. a week before the accident and earned the same amount afterwards from the same employers at different work. The county court judge awarded him com- pensation at the rate of 2s. 6d. a week for life. The Court of Appeal reversed this decision, on the ground that there was no difference between his weekly earnings before and after the accident ; but at the suggestion of the Court the employer consented to the amount of the weekly pay- ment being kept alive by payment of one penny a week, so that the workman could apply for a review if necessary. As Chandler v. Smith (supra) is the later case, the course there adopted is the one that should be followed. See also the Scotch case of Freeland v. Macfarlane OF SECTIONI 71 (2 F. 832) . But in Clelland v. Singer Manufacturing Com- pany (7 F. 975) it was held that in Scotland the course of making a nominal award cannot be taken if either party objects. And if there has been a complete recovery, there is no need to make any such award (Husband v. Campbell, 5 F. 1146). And in accordance with this is the decision in Fraser v. Great Northern of Scotland Railway, (3 F. 908) . There the employer offered to take back the workman at the same wages as before the accident. The workman declined. It was held that this did not bar his right to be compensated if his earning capacity was in fact diminished. All these decisions are based on the fact that after the injury the task is a different one ; and it would appear to be the correct interpretation of this Act that, if the task and the earnings be the same within a week after the accident as they were before, the workman is not entitled to any compensation, although there may be evidence that at some later period of his life his wage-earning power will be much reduced as a result of the injury. (b) When the injury was caused by the personal negligence or wilful act of the employer or of some person for whose act or default the employer is 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 compen- sation under this Act or take proceedings indepen- dently of this Act ; but the employer shall not be liable to pay compensation for injury to a workman by accident arising out of and in the course of his employment both independently of and also under this Act, and shall not be liable to any proceedings independently of this Act, except in case of such personal negligence or wilful act as aforesaid. 72 THE WORKMEN'S COMPENSATION ACT, 1906 This proviso is identical with the corresponding one in the Workmen's Compensation Act, 1897. Under the present Act, which applies to almost all workmen, it can seldom happen that a workman can have a right of action against his employer for negligence without also having a right to be compensated under this Act. But it may occur in at least two cases (a) when the disability has lasted for less than a week (supra, pp. 68-71) ; or (b) where the workman is unable to proceed under this Act through having failed to comply with the provisions of sec. 2 as to giving notice of the injury and making a claim for compensation (infra, p. 91). At his option. If the workman brings an action and fails in it, he cannot afterwards institute arbitration pro- ceedings. But he has the right (by sec. 1, subsec. 4) of then and there at the conclusion of the trial of the action asking the Court to assess compensation under this Act. This right must be exercised while the judge who tried the action still has seisin of it, and cannot be made the subject of fresh proceedings. This was decided in Edwards v. Godfrey ([1899], 2 Q.B. 333). In that case a workman was injured in descending some scaffolding and brought his action under the Employers' Liability Act, 1880. At the trial the jury found contributory negligence and judgment was therefore entered for the defendant. Later the workman instituted arbitration proceedings under the Workmen's Compensation Act, 1897, and an award was made in his favour by the county court judge. On appeal, the Court of Appeal held that the workman had an option as to which remedy he would resort to, and having chosen one course and failed in it, and not having availed himself of sec. 1, subsec. 4, it was too late for him to fall back upon the other remedy. The reasons for this decision appear in the judgment of A. L. Smith, L.J., who said : " I believe the interpretation I have placed upon subsection 4 to be the true one ; were it not so, the workman would never make his application for an assessment of compensation while the county court SECTION I 73 judge had seisin of the action ; he would wait until the action was at an end, and would then bring a fresh claim under the Workmen's Compensation Act and would so get compensation without having the costs caused by his bringing the action set off against the amount of his compensation." But in Rouse v. Dixon ([1904], 2 K.B. 628) it was held that no option had been exercised where a claim for compensation had been withdrawn on the applicant discovering that he was not a dependant and an action had been commenced. And compare M l Donald v. Dunlop (7 F. 533). In the recent case of Cribb v. Kynoch, Ltd., No. 2 ([1908], 2 K.B. 551), notice of the accident had been given in time. Then after an interval of one year an unsuccessful action was brought. After that the work- man instituted proceedings under this Act. It was held that the option had been exercised, and that therefore the proceedings failed. The converse case must now be considered, viz., If the workman institutes his arbitration proceedings under this Act first and fails, can he afterwards bring an action for negligence ? The point is by no means free from doubt, and there has been no decision on it in England. But the Irish Court of Appeal in Beckley v. Scott & Co. ([1902], 2 I.E. 504) has decided that he can. There was a considerable division of opinion in that case, and with the greatest possible respect, it is submitted that the decision is wrong. In support of the decision it may be urged that the reasoning of A. L. Smith, L.J., as to costs in Edwards v. Godfrey would not apply in such a case, and further that the section says " no thing in this Act shall affect any civil liability of the employer." On the other hand, the word " option " as here used does not appear to be compatible with first one proceeding being taken and then the other; and the insertion of subsec. 4 in the Act at all seems to show that apart from it the option would be in all cases conclusive. Moreover, it would be a great hardship if an employer 74 THE WORKMEN'S COMPENSATION ACT, 1906 could be twice harassed by a person who is never in a position to pay costs. The view here contended for appears to be the view of A. L. Smith, L.J., in Edwards v. Godfrey ([1899], 2 Q.B. 333) and of Collins, M.E., and Mathew, L.J., in Neale v. Electric and Ordnance Acces- sories Company, Ltd. ([1906], 2 KB. 558), and of the Court of Appeal in Cribb v. Kynoch, Ltd. (supra) ; but this point was not directly before the Court in any of those cases. The next question to consider is, What amounts to an exercise of the option ? and there are several cases on this point. In Isaacson v. New Grand (Clapham Junc- tion), Ltd. ([1903] 1 K.B. 539), a workman was killed by an accident, and his representatives brought an action under Lord Campbell's Act and the Employers' Liability Act, 1880. The county court judge held that there was no evidence of negligence and dismissed the action. The plaintiffs then asked him to assess compensation under the Workmen's Compensation Act, 1897. This also he refused to do, as he did not consider that the place where the accident occurred was a factory within the meaning of that Act. The plaintiff appealed to the Divisional Court against the former decision and to the Court of Appeal against the latter. The Divisional Court ordered a new trial. On the second trial the action was again dismissed on the ground that there was no evidence of negligence. Application was again made for compensa- tion under the Workmen's Compensation Act, 1897, and was adjourned pending a second appeal. The plaintiff again appealed to the Divisional Court, and the defendants then took the point that by asking the judge to assess compensation the plaintiffs had exercised their option. But the Court overruled this contention. Lord Alver- stone said : "Whatever may be the real meaning of the second provision, the condition which allows the plaintiff to exercise the option is that the defendant is not liable in the action under the Employers' Liability Act. The plaintiff is then in the position that he must preserve his SECTION I 75 rights ; if he does not appeal he desires to get compensa- tion under sec. 1, subsec. 4 ; if he appeals, and appeals successfully, the action will not have really been decided at that stage, that is, by the county court judge. The proper view is, in my opinion, that if the plaintiff intends to appeal he may at that stage have to make an applica- tion pro forma to the county court judge to assess the compensation under the Workmen's Compensation Act, and ask that the application may stand over till the appeal has been heard." However, in Neale v. Electric and Ordnance Accessories Company, Ltd. ([1906], 2 K.B. 558), it was held that when an award has actually been made and not impeached the plaintiff cannot apply for a new trial. In Taylor v. Hamstead Colliery Company, Ltd. ([1904], 1 K.B. 838), a workman had joined a scheme duly cer- tified by the Registrar of Friendly Societies under sec. 3, subsec. ], of the Workmen's Compensation Act, 1897. He was killed by an accident and his representatives brought an action under the Employers' Liability Act for damages. It was held by the Court of Appeal that joining the scheme was an exercise of the option, and the action was dismissed. In Little v. Maclellan (2 F. 387) a workman had received weekly payments for several weeks and then brought an action under the Employers' Liability Act, 1880. It was held that the receipt of the payments amounted to an exercise of his option, and the action was dismissed. But compensation was awarded to him under subsec. 4 of this section. In Valenti v. Dixon ([1907] S.C. 695), a foreign work- man ignorant of the law had accepted small sums pur- porting to be his half-earnings under the Workmen's Compensation Act ; it was held on the facts that he had not exercised any real option under this section. In Stephens v. Dudbridge ([1904] 2 K.B. 225) it was held that if the option be exercised by an infant the ordinary rule of law applies, and the option is only binding on him if it be for his benefit. 76 THE WORKMEN'S COMPENSATION ACT, 1906 Subseo 2(c) ^ ^ ^ * S P rOVeC * ^h^ ^ e * n j ur y ^ a man is attributable to the serious and wilful misconduct of that workman, any compensation claimed in respect of that injury shall, unless the injury results in death or serious and per- manent disablement, be disallowed. Serious and wilful misconduct. The word " wilful" has often been the subject of judicial interpretation before the Act of 1897 ; but as the decisions on that Act will enable us to see the sense in which the words are used here, it is only necessary to refer to one of the earlier cases. In Lewis v. Great Western Railway Company (3 Q.B.D. 195) it was necessary to decide whether the injury to the plaintiff's goods was due to the "wilful misconduct" of the railway company's servants. In the course of his judgment Bramwell, L.J., said : " The next and only other question is, Was this damage caused by the wilful misconduct of the defendants' servants ? Mr. Powell's argument when analysed is to this effect : ' The conduct of which we complain was their conduct, and that conduct was misconduct, and it was not accidental, therefore it was wilful.' So that, in the result, unless a thing is a pure accident it is wilful. If a man were walking along and tripped over some goods which he did not happen to see, it would be said that the tripping was the result of his conduct, which was misconduct not accidental, but wilful and that the wilfulness was in not looking out. I do not, however, think that the question can be thus dealt with. There is such a mass of authorities to show what wilful misconduct is, that we should hardly be justified, as a Court of Appeal, in departing from them, even if we thought them to be wrong. * Wilful misconduct ' means misconduct to which the will is a party, something opposed to accident or negligence ; the misconduct, not the conduct, must be wilful. It has been said, and I think correctly, that SECTION I 77 perhaps one condition of 'wilful misconduct' must be that the person guilty of it should know that mischief will result from it. But to my mind there might be other 'wilful misconduct.' I think it would be wilful misconduct if a man did an act not knowing whether mischief would or would not result from it. I do not mean when in a state of ignorance, but after being told, ' Now this may or may not be a right thing to do.' He might say, ' Well, I do not know which is right, and I do not care ; I will do this.' I am much inclined to think that that would be ' wilful misconduct,' because he acted under the supposition that it might be mischievous, and with an indifference to his duty to ascertain whether it was mischievous or not. I think that would be ' wilful misconduct.' ' This exhaustive definition is quite sufficient to show the meaning which has been put on this term, without quoting any of the other older cases. We must next consider the decisions on the meaning of the words "serious and wilful misconduct" in the Act of 1897. It should be noticed that several of these cases have already been referred to in the note on subsec. 1, pp. 62-68. The first deduction from them is that whether the facts in a particular case do or do not amount to " serious and wilful misconduct " is a question of fact to be decided by the arbitrator. This was first laid down in Eumboll v. Nunnery Colliery Company, Ltd. (80 L.T. 42). In that case a miner was injured by a fall of part of the ceiling in a mine. The evidence of serious and wilful misconduct was that the applicant and other miners had removed some props from one position to another in breach of the rules made under the Coal Mines Regula- tion Act, 1887. The county court judge held that this did not amount to serious and wilful misconduct and awarded compensation. The Court of Appeal refused to disturb his finding, saying they could only do so if there was no evidence to support it. " Speaking for 78 THE WORKMEN'S COMPENSATION ACT, 1906 myself," said A. L. Smith, L.J., " I think that an appeal against the finding that there has not been ' serious and wilful misconduct ' on the part of a workman can hardly ever be successful." The Scotch judges have not approved of this principle, although all the English decisions are uniform on this point. Thus in the Scotch case of Dailly v. Watson (2 F. 1044) a workman was killed in a mine by an accident caused by his using a naked lamp in breach of the regulations. The Sheriff awarded com- pensation ; but the Court of Session reversed his decision, all the judges expressly saying that this was a question of law. But this does not appear to be in accordance with Glasgow and South Western Railway v. Laidlaw (2 F. 708). Bees v. Powell Duffryn Steam Coal Company, Ltd. (64 J.P. 164), is a case where the county court judge's decision was reversed on the ground that there was no evidence to support it. A collier whose lamp had gone out, and who had gone back to the lamp-station to obtain a light, was obliged, in order to get back to where his work was, to pass along a way along which trams were hauled by a rope. On reaching the way he was told that a "journey" of trams was approaching. Neverthe- less he proceeded, and, when making for a manhole, was injured in consequence of the rope slipping. The Court of Appeal held, reversing the county court judge, that there was no evidence of serious and wilful misconduct. The case of John v. Albion Coal Company, Ltd. (65 J.P. 788), can be supported on the same grounds, viz., that the Court of Appeal will not look on this question as other than one of fact, and will consequently only reverse a finding if there is no evidence to support it. Otherwise it would be hard to understand the decision. A miner was proceeding along the main haulage road of the mine when he was warned by a fellow-workman to get into a manhole, as a " journey " of trams was approaching. He disregarded the warning and went on, with the result that he was overtaken and killed. It will be noticed that SECTION I 79 the facts of this case are very similar to Bees v. Powell Duffryn (supra). But the county court judge found that this was serious and wilful misconduct, and the Court of Appeal refused to disturb his finding. In Eeeks v. Kynochs, Ltd. (50 W.K. 113), it was decided that an act of disobedience resulting from a sudden impulse is not serious and wilful misconduct. There the applicant was a lad who worked at a machine used to cut slits in the heads of screws. He had been frequently warned not to put his hand near the wheel while it was in motion. A screw fell out on to the table before it was cut, and he leaned over the machine to pick it up and replace it. As a result his hand was injured. The Court considered that he was negligent, but said that, as he appeared to have acted on a sudden impulse, his act did not amount to serious and wilful misconduct. All the cases on this subject were reviewed by the House of Lords in Johnson v. Marshall, Sons d Co., Ltd. ([1906] A.C. 409). A workman was found fatally injured in a lift on his employer's premises without a load. Upon the lift was a notice that no one was allowed to use it except in charge of a load. There was no evi- dence as to the circumstances under which the workman entered the lift. In an application for compensation by the widow, it was held that the burden of proving that the workman was guilty of serious and wilful misconduct lay upon the employers, and that here there was no evidence of it. So it would seem that if the circumstances of a case are wholly unexplained the dependants are entitled to compensation. Lord James of Hereford also points out (at p. 414) that the word " serious " applies to the misconduct and not to the result of it. He says : " A man may be told not to walk on the grass. He does so, slips up, and breaks his leg. The consequences are serious, but the misconduct is not so." And the same principle is apparent in the Scotch decision of Wallace v. Glenboig Fire Clay Company ( [1907], S.C. 967), where it was held that misconduct in order to be serious and wilful must 80 THE WORKMEN'S COMPENSATION ACT, 1906 be both a wilful act of misconduct, and also must not be trivial or doubtful as regards quality, but must be serious. A good example of serious and wilful misconduct is found in Bist v. London and South Western Railway ([1907], A.C. 209). There an engine-driver, in breach of his orders, left the footplate of the engine and went on the tender while the train was in motion, and in so doing was killed. This was held to be serious and wilful misconduct. Being drunk and unfit to work is serious and wilful misconduct (M'Groarty v. Brown, 8 F. 809). A man who has been injured by an accident may have been guilty of serious and wilful misconduct, but the accident may not be due to such misconduct, and in that case he is not debarred from obtaining compensation by this section. Thus in Praties v. Broxburn Oil Company ([1907], S.C. 581) a miner had been guilty of serious and wilful misconduct in breaking a rule of the mine, but the accident was not directly attributable to the breach of rule, but to an act done by him after the operation to which the rule applied had been completed. He was awarded compensation. In the same way, in Glasgow Coal Company v. Sneddon (7 F. 485) a miner had been told not to ride on a particular truck. He did so, and while on the truck was killed by a stone falling from the roof. It was held that, although this was serious and wilful misconduct, the accident was not attributable to it. The following cases dealing with breaches of regula- tions by miners turn upon the facts in each case : O'Hara v. Cadzow Coal Company (5 F. 439) ; Lynch v. Baird (6 F. 271) ; United Collieries v. W Ghie (6 F. 808) ; Dobson v. United Collieries (8 F. 241) ; M'Nicol v. Spiers d Co. (1 F. 604), George v. Glasgow Coal Company, the Times, Nov. 10, 1908. The following cases also deal with the meaning of these words : Callaghan v. Maxwell (37 S.L.K. 313), Guthriev. Boase Spinning Company, Ltd. (38S.L.E. 483), SECTION I 81 Brooker v. Warren (23 T.L.R. 201), Powell v. Lanark- shire Steel Company (6 F. 1039). Unless the injury results in death or serious and per- manent disablement. If the object of the Workmen's Compensation Acts has been to place the burden of the loss caused by an injury on the shoulders of the man who is best able to prevent the mischief, or even if the object is merely to place upon the industry risks which are incidental to it, that object is lost sight of in this clause. For by no amount of foresight can an employer make sure that his workman will not disobey orders. And in no sense can an injury be said to be due to the nature of the industry, when it is brought about by the workman's reckless disregard of rules made for the safety of himself and his fellow- workmen. The hardship to employers may to some extent be mitigated by the interpretation which has been put upon the words " arising out of and in the course of the em- ployment " (see note on subsec. 1, pp. 62-68). But there will still be many cases where the accident has been brought about by the workman's own fault or stupidity, and yet the employer has to pay a large sum as com- pensation. Where death is the result of the injury, no difficult legal question arises. But the words " serious and per- manent disablement " are sure to give rise to difficulties. The two adjectives are conjunctive, and therefore the injury must be both serious and permanent for this exception to apply. It is not enough that the injury is of a grave nature, if the man subsequently recovers his health ; and on the other hand, although the man may be disabled for life, that will not bring him within this exception if the disablement is of a trifling character. Moreover it should be noted that a serious and per- manent affliction is not enough ; it must be a serious and permanent disablement, i.e., the injury must seriously and permanently lessen the man's wage-earning power. As to what is a disablement, see the note on subsec. 2 (a) 6 82 THE WORKMEN'S COMPENSATION ACT, 1906 (supra, p. 69), but notice that in this present clause it is not a disablement from doing the work at which he was formerly employed which is mentioned. Therefore, if the man be seriously and permanently disabled from earn- ing wages in his former trade, he would not be within this exception if he were able to earn equally good wages in another. It is impossible to lay down a rule as to what amount of disablement is " serious " ; it will no doubt be a question for the arbitrator in each case, just as it was in the cases cited on the meaning of " serious and wilful mis- conduct " (see Johnson v. Marshall [1906], A.C. 409, supra, p. 79). "Serious" is denned (in this class of context) in both Webster's Dictionary and the Century Dictionary as " giving rise to apprehension ; attended with danger." As to the word " permanent," there are of course many cases where the disablement is obviously permanent, as, e.g., where a limb has been lost. But there must also be many others where at the time of the arbitration it is not possible to say whether or not there is any prospect of the workman recovering his health. In such a case it is submitted that the arbitrator must make up his mind from the medical evidence once and for all ; if he decides that the disablement is permanent, and the workman afterwards recovers, that is his good fortune. But in such a case, if a weekly payment had been ordered, an applica- tion might, semble, be made to vary the award (see p. 225). Sec. i, (3) If any question arises in any proceedings under this Act as to the liability to pay compensa- tion under this Act (including any question as to whether the person injured is a workman to whom this Act applies) or as to the amount or duration of compensation under this Act, the question, if not settled by agreement, shall, subject to the provisions of the First Schedule to this Act, be SECTION I 83 settled by arbitration, in accordance with the Second Schedule to this Act. The procedure on abritration is dealt with in the notes on the second schedule, and at pp. 33-36. Any question arises in any proceedings. If a claim is made by a workman, and the full weekly amount claimed is paid up to date, and there is a promise to continue to pay during the incapacity, no " question " has arisen and the county court judge has therefore no jurisdiction to make an award. This was decided in Field v. Longden ([1902] 1 KB. 47), where it was held that it was a condi- tion precedent to the jurisdiction of the county court judge that a question should have arisen as to the liability to pay, or as to the amount or duration of the compensation. In Powell v. Main Colliery Company ([1900], A.C. 366) the meaning of the word " proceedings " was considered by the House of Lords. This case is more fully mentioned in the note on sec. 2, subsec. 1 (p. 97), on the question of notice. So far as it affects this present subsection the speech of Lord Halsbury shows that "proceedings" is used in this statute in a popular sense. It is not neces- sary that any legal proceedings should be on foot ; in fact, the subsection would be meaningless if that were the case. It is sufficient if the claim for compensation has been made by the workman. This case also shows that the request for arbitration may be made by the employer, as well as by the workman. Were this not so, the work- man might make his claim and then sleep on his rights for years. So soon as the claim is made either party may demand an arbitration. Agreement. A case arising under the second section of the Workmen's Compensation Act, 1897 (as to notices), explains the meaning of the word " agreement." This is Eendall v. Hill's Dry Dock and Engineering Company, Ltd. ([1900] 2 Q.B. 245), where a workman had been injured by an accident, and his employers, through an 84 THE WORKMEN'S COMPENSATION ACT, 1906 insurance company, paid him weekly one half the amount of his wages, taking a receipt "on account of compensa- tion which may become due to me under the Workmen's Compensation Act." The payments continued to be made for ten months after the accident and then ceased. The workman filed a request for arbitration. It was held by the Court of Appeal that, there being no evidence of any admission on the part of the employers of their liability under the Act to pay compensation, they were not estopped from taking the objection that the request for arbitration was out of time. This case, of course, is a decision not on this subsection but on sec. 2 (q.v., p. 100) ; but it shows that a mere payment and acceptance of compensation does not amount to an agreement. See also on this point Wright v. Bagnall ( [1900] 2 Q.B. 240), which is discussed in the note on sec. 2 at p. 99. As to who can enter into such an agreement, it is sub- mitted that the ordinary law applies as to persons not sui juris. Thus in the case of an infant such an agree- ment would only be supported if it were for his benefit (cf. Stephens v. Dudbridge [1904], 2 KB. 225 as to exercising the option under subsec. 2 (6), supra, p. 75). An agreement by a lunatic would be binding, unless the lunatic could show that the other party knew of his con- dition (Imperial Loan Company v. Stone [1892] 1 Q.B. 599). In all such cases where a doubt as to the validity of the agreement might arise, it would be wise for the employer to pay the compensation into court. The agreement need not be in any particular form. It may be verbal or even implied (Wright v. Bagnall, supra). But before it can be enforced as a county court judgment, a memorandum of it must be registered in the county court (see note on Sched. II. sec. 9, pp. 247-255). Sec. i, (4) If within the time hereinafter in this Act Subsec. 4. limited for taking proceedings, an action is brought to recover damages independently of SECTION I 85 this Act for injury caused by any accident, and it is determined in such action that the injury is one for which the employer is not liable in such action, but that he would have been liable to pay com- pensation under the provisions of this Act, the action shall be dismissed ; but the Court in which the action is tried shall, if the plaintiff so choose, proceed to assess such compensation, but may deduct from such compensation all or part of the costs which in its judgment have been caused by the plaintiff bringing the action instead of proceed- ing under this Act. In any proceedings under this subsection, when the Court assesses the com- pensation it shall give a certificate of the compen- sation it has awarded and the directions it has given as to the deductions for costs, and such certificate shall have the force and effect of an award under this Act. This subsection must be read in conjunction with sub- sec. 2 (b) supra, p. 71. The former subsection gives the workman an option in the case where he has two reme- dies. It is clear that if he brings his action and fails, he cannot afterwards institute arbitration proceedings under this Act (Edwards v. Godfrey [1899], 2 Q.B. 333, supra). It is also submitted (see p. 73) that the converse is true, namely, that if he institutes arbitration proceedings and fails, he cannot afterwards bring an action (but this point cannot be looked on as settled). This state of the law might in some cases press hardly on the workman, and this present subsection gives him a locus pcenitentice and enables him, if defeated at the trial of the action, to ask the Court then and there to assess compensation, and the Court will then do so, and give him a certificate which has the effect of an award under this Act. 86 THE WORKMEN'S COMPENSATION ACT, 1906 This exceptional privilege is hedged round with certain conditions. First of all, it is subject to this, that it only applies if the action is brought within the time limited in this Act for taking proceedings, and, secondly, the Court may deduct from the compensation all or part of the costs which have been caused by bringing the action instead of proceeding under this Act. The application to assess compensation must be made then and there, while the judge still has seisin of the action. The workman cannot start arbitration proceed- ings after failing in an action (Edwards v. Godfrey [1899], 2 Q.B. 333). If the workman could get com- pensation by starting separate proceedings, he would always do so; for by Sched. I. sec. 19 no claim can be set off against a sum payable as compensation ; and- therefore there would be no means by which the employer could recover the costs of the action, although he would have to pay the full amount of compensation. Thus it has been held in two Scotch cases (M'Gowan v. Smith [1907], S.C. 548, and Baird v. Higginbotham, 3 F. 673) that the application to have compensation assessed under this subsection must be made timeously. In the former case the workman was injured in May, 1906, and his action for damages was dismissed on February 5, 1907, and on February 19th he asked the Court to assess compensation. In the latter the accident took place on January 2, 1900, an appeal in the action was dismissed on November 29, 1900, and an application for compensa- tion was made on February 14, 1901. In both cases the Court refused to award compensation. An apparent exception occurs where the workman has been defeated in the action and desires to appeal. This question was considered in Isaacson v. New Grand (Clap- ham Junction) ([1903], 1 K.B. 539), the facts of which are given at p. 74. It was there pointed out that it would be a hardship if the application for compensation should be taken as an exercise of the option under sec. 1, subsec. 2 (&), thus preventing the plaintiff from appealing, and SECTION I 87 therefore his right to ask the Court to assess compensation lasts till the matter is finally disposed of. It is not clear from the Act itself which Court would then assess the compensation, the Court of Appeal or the Court of first instance. But it is pointed out in Isaacson v. New Grand (Clapham Junction), supra, that the correct course is for the workman to make his application at the conclusion of the trial, and the matter can then be adjourned pending the appeal (see also Neale v. Electric and Ordnance Accessories Company, Ltd. [1906], 2 K.B. 558; Cribb v. Kynochs, Ltd. [1908], 2 K.B. 551, ante, p. 73). Within the time, etc. The claim for compensation has to be made within six months of the accident, or in the case of death, within six months of the death. If the action is brought at a later period than this, it will be too late for the workman to take proceedings under this Act, and so his right under this subsection is gone (see note on p. 72.) Court. This is the only case under the Act where the compensation is assessable by any one except an arbitrator. Under this subsection the " Court " might be a judge of the High Court, or a judge and jury. In the latter case it is submitted that it would be the judge only who assessed the compensation; but the point has not yet arisen. Part of the duty of the "Court" is to deal with the costs and to give a certificate, and it cannot be within the province of a jury to deal with either of these matters. May deduct . . . costs. I.e., not all the costs of the action, but only the amount by which the employer's costs have been increased through the action being brought instead of arbitration proceedings being taken. This might only be a small amount, usually merely the cost of rebutting the allegation of negligence. But if the employer has all along admitted his liability to pay compensation, it is submitted all the costs of the action ought to be given him. It is also submitted that " may deduct " means 88 THE WORKMEN'S COMPENSATION ACT, 1906 % ought to deduct unless there is some good reason to the contrary. But it has been held in Cattermole v. Atlantic Transport Company ([1902], 1 KB. 204) that the county court judge has a discretion to deal with all the costs arising in such proceedings, and may even in exceptional cases give the unsuccessful plaintiff all the costs of the action. In that case an action was brought by the workman's representative under Lord Campbell's Act and the Employers' Liability Act and was dismissed, but the county court judge made an award for 234, and an order was made that the defendants should pay to the plaintiff all her costs of the proceedings. On appeal this order was affirmed. Stirling, L.J., said: " In general this would not be right, but such an order may be justified by special circumstances, as if, for example, the judge was satisfied that no costs had been caused by the plaintiff bringing an action instead of proceeding under this Act. This matter is one within the discretion of the judge." The certificate shall have the force, etc. The certifi- cate must be in the form given in Appendix B (Form 44). An arbitrator, as such, has no power to enforce an award. The right course is to apply to the county court judge. An award properly registered under Sched. II. sec. 8 is enforceable as a county court judgment, and a committal order can be made under the Debtors' Act, 1869 (Bailey v. Plant [1901], 1 KB. 31). As to other methods of enforcing awards, see pp. 316-317). (5) Nothing in this Act shall affect any pro- ceeding for a fine under the enactments relating to mines, factories, or workshops, or the application of any such fine. This subsection differs materially from the correspond- ing one in the Act of 1897 ; for that Act says : " But if any such fine, or any part thereof, has been applied for the benefit of the person injured, the amount so applied shall SECTION I 89 be taken into account in estimating the compensation under this Act." As this part of the clause is omitted in this Act, presumably it is intended that any benefit to the workman under these statutes shall be in addition to his compensation. Fines are payable under three different statutes. (1) The Metalliferous Mines Eegulation Act, 1872, 35 and 36 Vic. c. 77, sec. 38: "Where a penalty is imposed under this Act for neglecting to send a notice of any explosion or accident, or for any offence against this Act which has occasioned loss of life or personal injury, the Secretary of State may (if he think fit) direct such penalty to be paid to or distributed among the persons injured, and the relatives of any persons whose death may have been occasioned by such explosion, accident, or offence, or among some of them : " Provided that " (i) Such persons did not, in his opinion, occasion or contribute to occasion the explosion or accident, and did not commit and were not parties to committing the offence ; " (ii) The fact of such payment or distribution shall not in any way affect or be receivable as evidence in any legal proceeding relative to or consequential on such explosion, accident, or offence." (2) The Coal Mines Kegulation Act, 1887, 50 and 51 Vic. c. 58, sec. 70. This section is in exactly the same words as the section of the Act of 1872 set out above, applying the same principle as is there enacted to the coal-mining industry. (3) The Factory and Workshop Act, 1901, 1 Edw. VII. c. 22, sec. 136 : "If any person is killed or dies or suffers any bodily injury or injury to health, in consequence of the occupier of a factory or workshop having neglected to observe any provision of this Act or any regulation made in pursuance of this Act, the occupier of the factory or workshop shall be liable to a fine not exceeding one hundred pounds and, in the case of a second or subse- 90 THE WORKMEN'S COMPENSATION ACT, 1906 quent conviction in relation to a factory within two years from the last conviction for the same offence, not less than one pound for each offence ; and the whole or any part of the fine may be applied to the benefit of the injured person or his family or otherwise as the Secretary of State determines : Provided as follows : " (i) In the case of injury to health the occupier shall not be liable under this section, unless the injury was caused directly by the neglect. " (ii) The occupier shall not be liable to fine under this section if any information against him for not observing the provision or regulation to the breach of which the death or injury was attributable has been heard and dismissed previous to the time when the death or injury was inflicted." SECTION II 1. PROCEEDINGS for the recovery under this Act Sec. 2. of compensation for an injury shall not be main- tainable 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 unless the claim for compensation with respect to such accident has been made within six months from the occurrence of the accident causing the injury, or in case of death, within six months from the time of death. Provided always that (a) the want of or any defect or inaccuracy in such notice shall not be a bar to the main- tenance of such proceedings if it is found in the proceedings for settling the claim that the employer is not, or would not, if a notice or an amended notice were then given and the hearing postponed, be prejudiced in his de- fence by the want, defect, or inaccuracy, or that such want, defect, or inaccuracy was oc- casioned by mistake, absence from the United Kingdom, or other reasonable cause ; and 91 92 THE WORKMEN'S COMPENSATION ACT, 1906 (6) the failure to make a claim within the period above specified shall not be a bar to the maintenance of such proceedings if it is found that the failure was occasioned by mis- take, absence from the United Kingdom, or other reasonable cause. 2. Notice in respect of an injury under this Act shall give the name and address of the person injured, and shall state in ordinary language the cause of the injury, and the date at which the accident happened, and shall be served on the employer, or, if there is more than one employer, upon one of such employers. 3. The notice may be served by delivering the same at, or sending it by post in a registered letter addressed to, the residence or place of business of the person on whom it is to be served. 4. Where the employer is a body of persons, corporate or unincorporate, the notice may also be served by delivering the same at, or sending it by post in a registered letter addressed to, the em- ployer at the office, or, if there be more than one office, any one of the offices of such body. The scheme of this section is the same as that of the corresponding one of the Act of 1897, but the wording is slightly different, and proviso (6) and part of proviso (a) are new. The tendency of these changes is to lessen the importance of accuracy in the steps to be taken ; and even under the old Act it was very seldom that a workman failed to get compensation through such an inaccuracy. SECTION II 93 Notice of the Accident The notice (1) should give the name and address of the injured person ; (2) should state in ordinary language the cause of the injury, and the date on which the accident happened ; (3) should be served on the employer ; (4) must be in writing. The first three of these requirements are expressly enacted ; the fourth may be gathered from the general tenour of the section, and from the construction which has been put upon the similar words in sec. 7 of the Employers' Liability Act, 1880 (see Moyle v. Jenkins, infra) . Most of the reported cases on notices are decisions on the Employers' Liability Act, 1880, but they apply equally well to this section. The first of these cases is Moyle v. Jenkins (8 Q.B.D. 116). There the defendant had admittedly received verbal notice of the claim, but no formal written notice was given. It was held that this omission was fatal to the plaintiff's case. Lopes, J., said, " The terms of sec. 7 can refer to nothing but a notice in writing. There are express provisions as to what the notice is to contain and how it is to be served. I think a verbal notice is insufficient." In Keen v. Milwall Dock Company (8 Q.B.D. 482) verbal notice had been given, and later a letter was written in the following terms : "I am instructed by George Keen, of 136, Rhodeswell Road, Limehouse, to apply to you for compensation for injuries received at your dock, particulars of which have already been com- municated to your superintendent. I shall be glad to hear from you on the subject." It was held that this did not constitute a sufficient notice. In Stone v. Hyde (9 Q.B.D. 76) the notice contained all the necessary particulars except the cause of the injury, and it was held that this was not such a defect as to make the notice invalid, having regard to the proviso 94 THE WORKMEN'S COMPENSATION ACT, 1906 at the end of sec. 7. In these two cases the facts are nearly identical, and the decisions cannot be reconciled. It is submitted that Stone v. Hyde is more in accordance with the later decisions, and is the one which would now be followed. In Hearn v. Phillips (1 T.L.R 475) the notice was addressed to the wrong man, owing to a mistake in the initials ; but it was delivered at the defendant's house and was brought to his notice. The county court judge allowed the notice to be amended by altering the initials, and this amendment was upheld by the Divisional Court. In Previsi v. Gatti (4 T.L.B. 487) the notice merely stated that the plaintiff had sustained injury at the defendant's place of business on the 8th of August. The accident had, in fact, happened on the 9th of August. The notice therefore gave the wrong date, and omitted the cause of injury and the plaintiff's address. The county court judge held that these mistakes and omis- sions were not of such a nature as to prejudice the defendant in his defence, and his ruling was upheld by the Divisional Court. The following cases are also in point : Carter v. Drys- dale (12 Q.B.D. 91) and Clarkson v. Musgrave (9 Q.B.D. 386). From these decisions it appears that the Court has been slow to uphold objections to the form of the notice, and the tendency has been to look on nearly all defects as being curable by amendment. Subsec. 3 may at first sight appear superfluous, for there can be no doubt that a letter posted in the ordi- nary way (not registered) and duly delivered would con- stitute a sufficient service of the notice in view of the provisions in proviso (a). But the object of the subsec- tion is probably to bring this service within sec. 26 of the Interpretation Act, 1889, 52 and 53 Vic. c. 63 : "Where an Act passed after the commencement of this Act authorises or requires any document to be served by post, whether the expression ' serve ' or the expression ' give ' or ' send ' SECTION II 95 or any other expression is used, then, unless the con- trary intention appears, the service shall be deemed to be effected by properly addressing, prepaying, and posting a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post." This subsection adds the requirement that the letter be registered. If that is done service will be presumed to have been properly effected in the absence of proof to the contrary. The expression as soon as practicable occurs also in the Act of 1897, and is a somewhat unusual one. Its meaning cannot be quite the same as " within a reason- able time." " As soon as practicable " means, it is sub- mitted, " at the earliest possible moment," and allows of less delay than such a phrase as " within a reasonable time." It would always be wise for the workman to give his notice as soon as he possibly can. The effect of these words is of course largely done away with by the proviso (a) ; if they stood alone they would make it essential that the notice should be given without any delay. The Act does not say who is the proper person to give the notice. Apparently any one may do it, even some one not professing to act on behalf of the workman. Proviso (a). The new words in this proviso, " or would not, if a notice or an amended notice were then given and the hearing postponed," are so wide as to cover almost every case, and it is submitted that it can now hardly ever happen that the want of a notice would be fatal to a workman's claim. There is, however, one case in which the want of or a defect in a notice might prejudice an employer in a way which could not be got over by an amended notice or an adjournment. Suppose a case where the defence is that the accident was due to the workman's " serious and wilful misconduct." Then if notice is given " as soon as practicable " after the accident, the employer has an opportunity of making inquiries_and getting evidence for 96 THE WORKMEN'S COMPENSATION ACT, 1906 his defence. But if a long time elapses before the matter is brought to his notice, it might be impossible for him to get up his case, for the witnesses might be dead or lost sight of. In such a case he would be prejudiced by the want of notice, and therefore could rely on this section for his defence, unless the want, defect, or inaccuracy was due to " mistake, absence from the United Kingdom, or other reasonable cause." It should be added that under the Act of 1897 it has been held that the fact that the employer has not been prejudiced in his defence by the absence of a notice cannot be presumed. The onus of proving the absence of prejudice is on the workman (Shearer v. Miller and Son, 37 S.L.K. 80). The words " absence from the United Kingdom " occur both in proviso (a) and proviso (6). With regard to pro- viso (a) it is not easy to see why these words have been inserted. It is a simple matter to send a notice through the post, and a notice posted in a foreign country sopn after the injury, and delivered in England some days or even weeks afterwards, would surely have been given " as soon as practicable," so as to satisfy the main part of the section. Further, how can want of a notice be " occasioned " by absence from the United Kingdom ? If the workman is abroad and forgets to send the notice, or is ignorant of the need of it, it is just as much, or as little, a " mistake " as if he did the same thing in England ; the delay is due to the " mistake " and not to the " absence," and as such is protected by the previous word in the proviso. On the other hand, if the workman does not send the notice because of stress of circumstances as, e.g., if a workman is hurt in some remote spot and is unable to post a letter he would surely be protected by the main part of the section ; for if he sent the notice as soon as he could get in touch with a post office, that would be "as soon as practicable." It is therefore submitted that these words are superfluous. These remarks do not apply to the same words in proviso (6) (see p. 101). SECTION II 97 As to what is " mistake or other reasonable cause " see Rankine v. Alloa Coal Company (6 F. 375), where a work- man delayed giving notice because at first it did not appear that the injury was likely to be sufficiently serious to make it worthwhile to claim compensation. Later on he became worse, and started compensation proceedings, and it was held that the want of a notice was due to a mistake for which there was reasonable cause. And to the same effect is the decision in Brown v. Lochgelly Iron and Coal Company ([1907], S.C. 198). The Claim for Compensation. The claim must be made within six months from the occurrence of the accident, or if the workman dies from his injuries, within six months of the death. Unlike the notice, the claim need not be in writing (Lowe v. Myers [1906], 2 KB. 265), and need not be in any special form nor give any particular information. All that is required is that a demand for compensation should be made. There are a number of cases where the Court has had to decide whether a proper claim has been made. The first of these is Powell v. Main Colliery Company ([1900], A.C. 366) ; this case has already been cited at p. 83. It was there urged on behalf of the employer that the " claim for compensation " meant the first step in judicial proceedings, and that, as no such step had been taken within six months of the accident, the appli- cant must fail. The House of Lords overruled this con- tention, and decided that what the words meant was a demand to be compensated, made in any terms. Lord Halsbury is at pains to point out that one of the objects of the Workmen's Compensation Act, 1897, was to set up a form of proceedings which should be quite informal. In order to add any formal requirements to the " claim " it would be necessary to add words to the statute, which he was not prepared to do. The Scotch case of Bennett v. Wordie (1 F. 855) is not really inconsistent with this decision. There the 7 98 THE WORKMEN'S COMPENSATION ACT, 1906 representative of the deceased workman had written as follows : " I am instructed by his father to intimate that he holds you liable for compensation and solatium. This notice is given in terms of the statutes." It was held that this was merely an intimation of an intention to claim compensation and was not sufficient. Although this decision is not inconsistent with Powell v. Main Colliery Company, it is very doubtful whether it would have been followed in England. Under the present Act the point would not be of impoitance, for such a case as this would no doubt be protected by proviso (b). But it has recently been held in Scotland that a claim under the Workmen's Compensation Act, 1897, must be a claim for a specific sum, not merely an intimation of a demand for compensation (Kilpatrick v. Wemyss Coal Company [1907], S.C. 320). See also Haver v. Park (8 F. 250). The Irish case of Marno v. Workman, Clark & Co. (33 I.L.T. 183, and see [1900], 2 Q.B. 149, note), which was quoted in Powell v. Main Colliery Company as an authority in favour of the employer, is also not inconsistent with that decision ; for there the judgment rested on the fact that no claim at all had been made. In Perry v. Clements (17 T.L.E. 525) a workman had sustained an injury and thereupon served a notice of the accident upon his employer. Later he brought an action for negligence and got a verdict. It was argued for the defendant that the notice which had been given amounted to a claim for compensation, and that thereby the workman had exercised his option under sec. 1, subsec. 2 (b), and could not now bring his action. Eidley, J., held that such a notice did not amount to a claim for compensation and entered judgment for the plaintiff. Lowe v. Myers ([1906] 2 K.B. 265), is the latest case, and it shows how slow the Court is to give effect to mere technical objections in arbitrations under these Acts. The respondents to an application for compensation under the Workmen's Compensation Act, 1897, stated SECTION II 99 by their answer as a fact which they desired to bring to the notice of the arbitrator that within a few weeks of the accident they had paid to the applicant a certain sum which he had accepted in satisfaction of all claims, and they denied any further liability under the Act. The answer also raised the defence that no claim for compensation had been made within six months of the accident. The county court judge dismissed the application on the ground that there was no evidence of a claim having been made within the statutory six months. But the Court of Appeal held that the statement in the answer as to the payment of compensation was an admission of fact on which the applicant was entitled to rely and afforded some evidence of a claim having been made, and that the application ought to be remitted to the county court judge for a rehearing. Collins, M.E., quotes with approval that part of Lord Halsbury's speech in Powell v. Main Colliery Company (supra, p. 97) in which the Lord Chancellor pointed out that it was part of the intention of the Act that proceedings under it should be of an informal nature. In this case there was no evidence of any sort of the form which the supposed claim had taken ; and this judgment therefore involves the proposition that, so long as a demand to be compensated is made, it does not matter what form it takes, nor does it matter whether the claim be verbal or in writing; and it would appear that in this respect the law in England and Scotland is not the same (see Kilpatrick v. Wemyss Coal Company, supra) . A workman may sometimes succeed although he has made no claim; for the conduct of the employer may have been such that he is estopped from setting up this defence. This was considered in the two cases of Wright v. Bagnall ( [1900] 2 Q.B. 240) and Eendall v. Hill's Dry Dock and Engineering Company , Ltd. ([1900] 2 Q.B. 245). In Wright v. Bagnall weekly payments were made to the workman ; but there was an argument 100 THE WORKMEN'S COMPENSATION ACT, 1906 as to the amount at which the weekly amounts should be commuted, and the respondent's manager or foreman said that if the workman stood out for the sum he was claiming, they would have to go to the Court. Both parties thereupon forebore to take steps to have the amount assessed, and during the period in which they were negotiating the six months expired. The defendants took the point that no claim had been made within six months, and the county court judge dismissed the appli- cation. But the Court of Appeal held that under these circumstances the employers were estopped from relying on this defence, as they had by their conduct admitted their liability to pay compensation, and the only thing out- standing was the question of amount. The other case, Eendall v. Hill's Dry Dock and Engineering Company, Ltd. ([1900] 2 Q.B. 245), is just the other side of the line. A workman had been injured, and his employer's insurers paid him weekly one half his weekly wages, taking a receipt which expressed that the money was received " on account of compensation which may be or become due to me under the Workmen's Compensation Act, 1897." These payments were continued for ten months after the accident and then ceased. The workman started proceedings, and it was held that, there being no evidence of any admission on the part of the employers of their liability under the Act to pay compensation, they were not estopped from taking the objection that the request for arbitration was out of time. And to the same effect is the decision in the Scotch case of O'Neill v. Motherwell ( [1907] , S.C. 1076). There compensation had been paid for six months after the accident without anything being said about the Act. Then the workman demanded arbitration. It was held that the employers were not estopped from relying on the absence of a claim. Proviso (b). This is new law, and puts a workman who has failed to make a claim on something like the same footing as one who has failed to give a notice; SECTION II 101 but the only cases where a failure to make a claim is excused are where it is due to "mistake, absence from the United Kingdom, or other reasonable cause." The employer who does not receive "notice of an accident" " as soon as practicable" is not likely in the great majority of cases to be seriously prejudiced in his defence thereby ; but if he does not have a " claim for compensation" made upon him within six months, his position is much more serious ; for years may have elapsed and it might be impossible for him to prepare his defence. It is probably for this reason that the words " that the employer is not . . . defect or inaccuracy" which occur in proviso (a) have not been put in proviso (6). This proviso will be very useful to the workman in such a case as the one last cited (Rendall v. Hill's Dry Dock Company, supra), where the workman's failure to make a claim, if not due to "mistake," was certainly due to " a reasonable cause," namely, a belief that the employers admitted their liability to pay. The words " absence from the United Kingdom " do here, unlike in proviso (a) (supra, p. 96), meet a case that would otherwise be unprovided for. For a claim must be made within a definite time, six months, and not " as soon as practicable." Therefore if a man is hurt in some remote spot, it might possibly happen that he would be unable to communicate with his employers for six months, and were it not for these words, his claim might be defeated by the main part of the section. The use of these words " absence from the United Kingdom" in the two provisos leads one to a conclusion which is nowhere directly laid down in the Act namely, that a workman is entitled to the benefits of this Act who is hurt in some place abroad where he is working in pur- suance of a contract made in England. It could hardly be contended that the words were only inserted in the Act to meet the case of a workman injured in England and then instantly leaving the country before he had time to give notice of the accident. It is therefore submitted 102 THE WORKMEN'S COMPENSATION ACT, 1906 that the Act covers the case of a workman who is, e.g., engaged in England to work on a railway in South America, and sustains an injury out there. Notice that this proviso, unlike (#<), does not contain the clause about the employer being prejudiced ; the only cases to which this proviso applies are where the failure was due to " mistake, absence from the United Kingdom, or other reasonable cause." But even this is wide enough to cover almost every instance, except where the workman has acted in bad faith in not making the claim, as, e.g., where he purposely delays in order to make it more difficult for the employer to defend himself. Proceedings. The meaning of this word has given rise to some difference of opinion. The question was dis- cussed by the House of Lords in Powell v. Main Colliery Company, Ltd. ([1900] A.C. 366). From that case it appears that the service of the notice and the making of the claim (save in the excepted cases of the provisos) are conditions precedent to the institution of proceedings. But once these conditions have been fulfilled, the next step may be taken by either party, the workman or the employer. Were this not so, it would be a hardship on the employer; for the workman might make his claim and then sleep on it for years ; for there is no limit of time for any step in the proceedings after the claim. There is no express provision in this Act or the Act of 1897 which empowers the employer to institute pro- ceedings. But Lord Halsbury in his speech in that case said that this is the proper interpretation. The person to take proceedings. It is somewhat curious that neither this Act nor the Workmen's Compensation Act, 1897, anywhere designates who is the person to take proceedings. If the workman is alive, of course there is no difficulty. But if he is dead it is not so clear. The Eule Committee consider that the legal personal repre- sentative, if there be one, is the proper person to apply for an arbitration (see Eule 4) . If there is no personal repre- sentative, the dependants themselves may apply. If some SECTION II 103 of them wish for an arbitration and others do not, the former may apply, and the latter should be joined as respondents. In the ordinary case it is not of very great importance whether the representative or the dependants have the conduct of the proceedings, but it might happen that their interests were adverse, and then the point would have to be decided. For instance, in a case where the personal representa- tive is not a dependant, he might desire to bring an action under Lord Campbell's Act, while the dependants wished to proceed under this Act. It will be remembered (p. 71), that by sec. 1, subsec. 2 (b), both courses cannot be taken. The workman has an option, and having chosen, his choice is binding on him. Suppose, then, that the dependants take proceedings under this Act and recover compensation ; if the personal representative, who, ex hypothesi, received none of the compensation, brings an action under Lord Campbell's Act, he is met by the defence that the option has already been exercised. The definition clause of this Act (sec. 13) does not help to elucidate this point, for it says, " 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 to whom or for whose benefit compensation is payable." Under the Act of 1897, it was arguable that the legal personal represen- tative was the person to exercise the option, because by Sched. I. sec. 4 he was the person to whom the com- pensation had to be paid. But it is noteworthy that under this Act the compensation in case of death must be paid into court. The matter is therefore left quite open, and it is impossible to say how the Court would deal with such a case until it has arisen. SECTION III 1. IF the Eegistrar of Friendly Societies, after Sec * 3 * taking steps to ascertain the views of the em- ployer and workmen, certifies that any scheme of compensation, benefit, or insurance for the work- men of an employer in any employment, whether or not such scheme includes other employers and their workmen, provides scales of compensation not less favourable to the workmen and their depend- ants than the corresponding scales contained in this Act, and that where the scheme provides for contribution by the workmen the scheme confers benefits at least equivalent to those contributions, in addition to the benefits to which the workman would have been entitled under this Act, and that a majority (to be ascertained by ballot) of the workmen to whom the scheme is applicable are in favour of such scheme, the employer may, whilst the certificate is in force, contract with any of his workmen that the provisions of the scheme shall be substituted for the provisions of this Act, and thereupon the employer shall be liable only in accordance with the scheme, but, save as aforesaid, this Act shall apply notwithstanding any contract 104 SECTION III 105 to the contrary made after the commencement of this Act. 2. The Kegistrar may give a certificate to expire at the end of a limited period of not less than five years, and may from time to time renew with or without modifications such a certificate to expire at the end of the period for which it is renewed. 3. No scheme shall be so certified which con- tains an obligation upon the workmen to join the scheme as a condition of their hiring or which does not contain provisions enabling a workman to withdraw from the scheme. 4. If complaint is made to the Begistrar of Friendly Societies by or on behalf of the workmen of any employer that the benefits conferred by any scheme no longer conform to the conditions stated in subsec. 1 of this section, or that the provisions of such scheme are being violated, or that the scheme is not being fairly administered, or that satisfactory reasons exist for revoking the certifi- cate, the Eegistrar shall examine into the complaint, and, if satisfied that good cause exist for such com- plaint, shall, unless the cause of complaint is removed, revoke the certificate. 5. When a certificate is revoked or expires, any moneys or securities held for the purpose of the scheme shall, after due provision has been made to discharge the liabilities already accrued, be dis- tributed as may be arranged between the employer and workmen, or as may be determined by the 106 THE WORKMEN'S COMPENSATION ACT, 1906 Eegistrar of Friendly Societies in the event of a difference of opinion. 6. Whenever a scheme has been certified as aforesaid, it shall be the duty of the employer to answer all such inquiries and to furnish all such accounts in regard to the scheme as may be made or required by the Eegistrar of Friendly Societies. 7. The Chief Kegistrar of Friendly Societies shall include in his annual Keport the particulars of the proceedings of the Registrar under this Act. 8. The Chief Eegistrar of Friendly Societies may make regulations for the purpose of carrying this section into effect. This Act does not encourage " contracting out " ; a "scheme " which complies with the requirements of this section is the only form of contract made after the com- mencement of the Act which relieves the employer of his liability (but see sec. 15). Subsecs. 1 and 3. Before such a scheme can be put into operation, the Eegistrar of Friendly Societies must " certify " it, and he will not do this unless the scheme satisfies his requirements in the following respects : (i) The scheme must provide scales of compensation not less favourable to the workmen and their depen- dants than the corresponding scales contained in this Act. (ii) If the scheme provides for contribution by the workmen, the scheme must confer benefits at least equivalent to those contributions, in addition to the benefits to which the workmen would bave been entitled under this Act. (iii) The majority of the workmen to whom the scheme is applicable must be in favour of the scheme. The opinion of the workmen is to be ascertained by ballot. SECTION III 107 (iv) The scheme must not contain an obligation on the workmen to join the scheme as a condition of their hiring. (v) The scheme must contain provisions enabling the workmen to withdraw from it. If these five requirements are complied with, the scheme can be certified, and then the employer may contract with any individual workman that that workman shall come in under the scheme, and give up his right to be compensated under the Act. But no workman can be compelled to make such a contract. Subsec. 2. The Registrar's certificate may remain in force for any time not less than five years. When the certificate expires, it may be renewed, with or without modifications. Under the Act of 1897 there was no provision for renewing the certificate. When it expired, it was gone altogether, and a new certificate had to be obtained. This was the ratio decidendi in Wilson v. Ocean Coal Company and Treherne v. Ocean Coal Com- pany, which are reported together at 21 T.L.E. 621. In Wilson v. Ocean Coal Company a workman sued his employer for a sum of money which had been deducted from his wages. The defence was that the deduction had been made in accordance with a scheme which was binding on the workman. It appeared that a scheme of compensation was certified by the Registrar in November, 1898, under sec. 3 of the Workmen's Compensation Act, 1897, as applicable to the defendant's workmen, and the plaintiff was one of the workmen who agreed to come in under the scheme. The scheme expired at the end of 1903, and in December, 1903, a renewal scheme was certified by the Registrar, and the defendant posted up a notice that workmen might enrol under the scheme. The course adopted at the defendant's works was that a month's notice had to be given if a workman wished to withdraw from the scheme. The plaintiff had not given notice of withdrawal, but he did not enrol under the renewal scheme. The defendants deducted a certain sum 108 THE WORKMEN'S COMPENSATION ACT, 1906 from his wages as his contribution under the renewal scheme, upon the ground that the workman was bound by it until he gave notice of withdrawal. It was held by the Court of Appeal that, as the original scheme had expired, the workman was not bound by the renewal scheme unless the defendants proved that he had agreed to accept it. In Treherne v. Ocean Coal Company (supra) the appellant claimed compensation for an injury, and the defence was the same as in the other case ; the appeal was allowed for the same reasons. It seems probable that the additional words in sub- sec. 2 (from "and may from time" to "it is renewed") are intended to meet such a case as this ; and that there- fore a scheme which is renewed would be binding on a workman, who had been bound by the original scheme, until he gave notice that he wished to withdraw from it. See Wallace v. Hawthorne ([1908], S.C. 713, post, p. 189). Subsec. 4 enables the Registrar to revoke his certi- ficate if a complaint is made to him by or on behalf of the workmen to the effect that either (i) the benefits of the scheme no longer conform with the requirements of subsec. 1 ; or (ii) the provisions of the scheme are being violated; or (iii) the scheme is being unfairly administered ; or (iv) satisfactory reasons exist for revoking the cer- tificate. The meaning of " by or on behalf of the workmen " is not clear. Some indefinite number of workmen appear to be necessary. If the whole body of workmen was meant, the word " all " would probably have been used. The Registrar would no doubt have to use his discretion, as to whether the complaints came from a substantial body of workmen, before he instituted an inquiry. It would appear as if " workmen " in this subsection means only workmen who are bound by the scheme. Subsec. 5 deals with the method of dividing up the money or securities held for the purposes of the scheme, SECTION III 109 when the certificate expires or is revoked. First of all, provision must be made for discharging liabilities, and then the surplus is to be distributed as may be arranged by the employer and workmen. If these cannot agree, then the Eegistrar is to arrange the distribution. Subsecs. 6 and 1 are for the purpose of enabling statistical returns to be made by the Eegistrar. Subsec. 8 enables the Eegistrar to make regulations for carrying out this section. These regulations are set out in Appendix D. Comparison with sec. 3 of the Workmen's Com- pensation Act, 1897. It is well to compare this section with the corresponding one in the Act of 1897. It will be noticed that there are numerous changes. In the earlier Act the first " requirement " to obtain a certificate was that the scheme should be " on the whole not less favourable to the general body of workmen" than the benefits of the Act. In this Act this requirement is changed to " provides scales of compensation not less favourable to the workmen." So that it is no longer the general body of the workmen that is considered, but each individual must now benefit by being amenable to a scale of compensation as beneficial as that of the Act. The Act of 1897 was open to the interpretation that a scheme could be certified under which certain of the workmen, who joined it, might not fare so well as under the Act ; although it is submitted that this is not the correct interpretation. Under this Act such a construction is no longer possible. The second requirement in this Act, namely, that workmen should receive benefits in return for their subscriptions, as well as the right to be compensated, is a new provision, and is inserted in order to prevent this section being used as a means of making the workmen pay their own compensation. The provision for finding out the opinion of the workmen by ballot is also new. The Working of this Section. No doubt where a /?\> / OF THE \ UNIVERSITY 1 110 THE WORKMEN'S COMPENSATION ACT, 1906 scheme exists it may be well known in a neighbour- hood that workmen willing to be bound by the scheme are most likely to find favour with their employers ; but apart from such indirect pressure, it will be seen that the most ample safeguards exist to prevent an employer using his influence to compel his workmen to participate in a scheme. For even when a scheme complies with all the conditions and is duly certified, no workman can be compelled to join it nor prevented from withdrawing from it when he so wishes. But, indeed, under this Act the scheme can be of very little, if any, benefit to the employer ; for, as it must provide scales of compensation at least as favourable as those in the Act, it would in the aggregate probably involve him in greater expense than if he simply insured against his liability under the Act. There is no provision compelling the employer to guarantee or insure the solvency of the scheme, and it might well be that the claims arising out of some great disaster in, e.g., a coal-mine, might be greater than the available funds. It should be noticed that the workmen of two or more employers may be linked together for the purposes of a scheme. This provision might be convenient in some cases, but it is believed that it has never been acted on. The question has arisen as to whether, when a workman agrees to be bound by a scheme, he thereby exercises the option mentioned in sec. 1, subsec. 2 (&), and debars him- self from bringing an action for negligence against his employer. This point was discussed in Taylor v. Ham- stead Collieries Company ([1904] 1 K.B. 838). In that case a workman who had joined a scheme duly certified by the Registrar received fatal injuries, alleged to have been caused by the personal negligence of his employers, or of some person for whose act or default his employers were responsible. After the workman's death his repre- sentatives brought an action to recover damages. It was held by the Court of Appeal that the contract by the workman that the provisions of the scheme should be SECTION III 111 substituted for the provisions of the Act was an exercise of the option given to him by sec. 1, subsec. 2 (6), and was a bar to the claim of his representatives to recover damages under the Employers' Liability Act, 1880. Collins, M.E., said: "When a scheme is adopted, the provisions of the scheme are substituted for the provisions of the Act ; but they take effect under the Act by that substitution ; and when he (the workman) seeks to enforce them, he does so under the Act." SECTION IV Subsec. i 1* WHEKE any person (in this section referred to as the principal) in the course of and for the purposes of his trade or business contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this Act which he would have been liable to pay if that workman had been immediately employed by him ; and where compensation is claimed from or proceedings are taken against the principal, then, in the application of this Act, references to the principal shall be substituted for references to the employer, except that the amount of com- pensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed : Provided that, where the contract relates to threshing, ploughing, or other agricultural work, and the contractor provides and uses machinery driven by mechanical power for the purpose of 112 SECTION IV 113 such work, he and he alone shall be liable under this Act to pay compensation to any workman employed by him on such work. This section is intended to carry out the same principles as sec. 4 of the Workmen's Compensation Act, 1897, but the language is quite different and the same objects are attained by a different means. These principles are, it is submitted, twofold firstly, to place the burden on the shoulders of the man most likely to be solvent so that the workman's remedy may not be an illusive one ; and secondly, to ensure that the liability to pay compensation shall only fall on a man who has to some extent the power to guard against accidents. These principles are illustrated in the proviso con- cerning agricultural work. The farmer is usually a much "smaller" man than the contractor who owns the machines, and is not in a position to exercise any control over the contractor's work. In the same way subsec. 4 of this section shows that the Legislature has felt it to be unjust that a man should have this liability put on him if the work is not done on his premises or is in no way under his control or management. Principal The objectionable word " undertaker," which has led to so much difference of judicial opinion (cf . Cooper and Crane v. Wright [1902] A.C. 302) disappears altogether. In accordance with the scheme of the whole Act, the section is quite general in its application. Any "principal" who has work, which he has undertaken in the course of his trade or business, done for him by a contractor or sub-contractor is liable to be called on to pay compensation under this section. There is one point with regard to the meaning of the word " principal " which is not quite clear, namely whether a man who has work done for himself by a contractor is a " principal " if he is not under contractual liability to any other person to get the work done. This is best illustrated by an example. Suppose a man who 8 114 THE WORKMEN'S COMPENSATION ACT, 1906 for the purposes of his trade or business wishes to alter his premises for instance, a railway company who propose to build a new station. If that company give out the work to be done by a contractor, does it become a "principal" within the meaning of this section? It is submitted, although the wording of the section is by no means clear, that it does. The words are : " Where . . . the principal . . . contracts with . . . the contractor for the execution ... of any work undertaken by the principal." In the case put, therefore, it is not enough that the company contract with the contractor to do the work ; it must be work which the company have them- selves " undertaken " to do. On the one hand, therefore, it would appear that " undertaken " must mean " become liable to some third party ' ' ; the word implies that the principal is under an obligation to do the work or get it done ; and it would not naturally include work which the principal proposes to do for himself and which no one can force him to do, as in the case put of a company wishing to build a new station. And this view has been adopted by the Scotch Court in the recent case of Zugg v. Cunningham ([1908], S.C. 827). There the respondents were manufacturers of chemical manure, and had employed a contractor to tar some tanks. One of the contractor's workmen was injured. It was held that the manufacturers were not liable to pay com- pensation, as the tarring of the tanks was not work which they had undertaken. And this view is sup- ported by the definition given in the Century Dic- tionary; "to undertake" means "to take on one's self," often " to take formally or expressly on one's self, lay one's self under obligations or stipulations to perform or execute, pledge one's self to." One would incline to think therefore that the "principal" who is moving spontaneously to do certain work would not be within the section, and that it would only include one who was under obligations to some one else to do it. But, on the other hand, it is submitted that if the view SECTION IV 115 given above be correct there seems to be little reasoD for inserting the words " in the course of and for the purposes of his trade or business " ; for it is extremely difficult to see how a man who has undertaken to get work done can contract with some one else to do it for him except for the purposes of his trade or business. In the same way, the proviso about agricultural work would be entirely superfluous, for in the ordinary case the farmer who employs a contractor to reap his fields would not have "undertaken" with anybody to get the work done he would be acting spontaneously. It is therefore submitted, with the greatest respect, that the word " undertaken " must be construed as meaning no more than " entered upon," and that the Scotch decision should not be followed ; otherwise the bulk of the section would be unintelligible. In the case put therefore of the building of a railway station which has actually been before the Courts in Pearce v. London and South Western Railway Company ([1900], 2 Q.B. 100), and was then, under the Act of 1897, decided in favour of the railway company, on the ground that the building of a station was merely ancillary to their main purpose the railway company would be liable as having " under- taken," in this somewhat strained sense, to build a to station, and then having contracted with the contractor do the work And see Mulrooney v. Todd (25 T.L.K. 103). In the course of or for the purposes of his trade or business. If the view expressed above be correct, it becomes important to determine the meaning of these words. Whether or not a particular undertaking is or is not in the course of or for the purposes of a trade or business is a question of fact to be determined by the arbitrator in each case. But there is some authority as to the meaning of the words. First as to " trade." In Harris v. Amery (L.K. 1 C.P. 148) Willes, J., said that trade had a technical meaning of buying and selling, and he decided in that case that farming was not a trade. In the same way a circus owner is not 116 THE WORKMEN'S COMPENSATION ACT, 1906 engaged in trade (Speak v. Powell, L.K. 9 Ex. 25 ; and see Nash v. Hollinshead [1901], 1 K.B. 700). On the other hand, the publication of the Law Reports is a trade, although not primarily engaged in with a view to making a profit (In re The Incorporated Council of Law Reporting, 22 Q.B.D. 279). As to business Jessel, M.R., in Smith v. Anderson (15 C.D. 247), says (at p. 258) : " Anything that occupies the time and attention and labour of a man for the pur- pose of a profit is a business." According to the Century Dictionary, business is " a matter or affair that engages a person's attention and requires his care ; an affair receiving or requiring atten- tion ; specifically that which busies or occupies a person's time, attention, and labour as his chief concern ; that which one does for a livelihood, occupation, employment." "For the purposes of" is a much wider expression than merely " in the course of," and, it is submitted, is expressly inserted to cover such cases as those of a manufacturer making an addition to his plant or a railway company building a new station. Whole or any part. The marginal note defines this section as " sub-contracting "; this is somewhat mislead- ing, for in the case where the " whole " of the principal's work is to be done by the contractor, there is no sub- contracting in the ordinary sense of that term. " Sub- contracting" more accurately describes the case where the principal splits up small portions of the work among a number of different people, but in this section it is sufficient if the original contractor (" the principal ") delegates the whole of his contract to one other man. Under the Act of 1897, there was a considerable dif- ference of opinion as to whether a sub-contractor could be an undertaker within the meaning of sees. 4 and 7 of that Act. The point was important, because it was only if the sub-contractor was an undertaker, and so was liable to pay compensation apart from sec. 4, that the original contractor could recover from him the amount he had had SECTION IV 117 to pay the workman. See the cases of Mason v. Dean ([1900], 1 Q.B. 770) and Cass v. Butler ([1900], 1 Q.B. 777). It was finally decided by the House of Lords in Cooper and Crane v. Wright ([1902], A.C. 302) that the sub -con tractor was an " undertaker " within sec. 7 and therefore was liable to indemnify the " undertaker " within sec. 4, who had paid compensation to the sub- contractor's workman. The use of the words " whole or any part " seems to incorporate the principle laid down in Cooper and Crane v. Wright into this Act ; although even without such words it is submitted that the sub-contractor would be liable to indemnify the principal as he need no longer be an "undertaker" ; it is sufficient if he is an employer under sec. 1. Compensation under this Act. In the Workmen's Compensation Act, 1897, the " undertaker " was liable to pay to the workman the compensation to which he had become entitled not only under that Act, but also by reason of personal negligence or wilful act independently of the Act i.e., by virtue of the Employers' Liability Act, 1880, or the common law. The principal's only liability under this present Act is for compensation payable under this Act. It is no doubt true that the number of cases where compensation can be recovered outside the Act will be small, but some such cases will arise and it seems illogical to exclude them from the operation of this section. Provided that where . . . agricultural work. This proviso is consistent with what has already been sub- mitted to be the objects of this section i.e., to give the workman a solvent party to proceed against, and at the same time as far as possible to place the burden on the shoulders of a man who is able to guard against accidents taking place. As to what constitutes "agricultural work" see the case of Smith v. Coles ([1905], 2 K.B. 827). That was a case where a man claimed compensation under the Workmen's Compensation Act, 1900. The applicant was 118 THE WORKMEN'S COMPENSATION ACT, 1906 a skilled carpenter who spent part of his time as keeper and part at doing " odd jobs " about the farm. The Court of Appeal held that there was evidence on which the county court judge could rightly find that the man was " employed in agriculture." Komer, L.J., points out that the Workmen's Compensation Acts are expressed in popular and not in technical language, and should be construed in a popular and not a technical sense ; and this remark would presumably apply to the present Act. It can, therefore, be said that although the word " agri- culture " has received no definition, it means something more than the mere tilling, sowing, and gathering the produce of the farm. The Century Dictionary defines agriculture as " the cultivation of the ground ; especially, cultivation with the plow and in large areas in order to raise food for man and beast ; husbandry, tillage, farming." iubseo 2 ^* Where the principal is liable to pay compen- sation under this section, he shall be entitled to be indemnified by any person, who would have been liable to pay compensation to the workman inde- pendently of this section, and all questions as to the right to and amount of any such indemnity shall in default of agreement be settled by arbitration under this Act. A right to be indemnified under sec. 6, subsec. 2, of this Act (q.v., p. 128) can be enforced by action, but the indemnity given by this subsection can only be recovered in arbitration proceedings. This is new law, for it had been held that the indemnity given by the corresponding section of the Act of 1897 could be sued for. This question was before the Court of Appeal in the case of Evans v. Cook ([1905], 1 KB. 53). There an action was brought to recover an indemnity under sec. 4 of the Workmen's Compensation Act, 1897, and the defence was that the SECTION IV 119 proceedings should have been by arbitration. It was held, however, that there was nothing in that Act which took away any right of action. The present Act by express words says that an arbitration shall be the proper proceeding, the object being no doubt to enable the whole matter to be settled at the original arbitration between the employer and workman. The method of bringing the party from whom the indemnity is claimed before the Court is dealt with in the rules (19-23, q.v., p. 287-288). These rules are framed with a view to having all three parties applicant, respondent, and indemnifying party before the Court at once ; and there is no provision by which the respon- dent may, if he finds out after the original arbitration that he has a right to be indemnified, proceed to enforce his right. 3. Nothing in this section shall be construed as Sec. 4, Subsec. 3. preventing a workman recovering compensation under this Act from the contractor instead of the principal. Of course, the workman cannot recover from both principal and contractor. But there does not seem to be anything in this section which compels him to exercise an option and stick to it ; and it is submitted that he may proceed against the principal first, and if it appears that the principal is not liable because, e.g., the contract which he made was not " in the course of or for the purposes of his trade or business," then the applicant might institute proceedings against the contractor and obtain compen- sation. 4. This section shall not apply in any case Sec. 4, where the accident occurred elsewhere than on or in or about premises on which the principal has undertaken to execute the work or which are otherwise under his control or management. 120 THE WORKMEN'S COMPENSATION ACT, 1906 In the Act of 1897 the operation of sec. 4 is excluded if the contract was "merely ancillary or incidental to and no part of or process in the trade or business carried on by the undertakers." The object of the present Act is to include in the operation of the section cases which are excluded by the above quoted phrase (see note on Pearce v. London and South Western Railway Company ( [1900], 2 Q.B. 100, supra, p. 115). The effect of this subsection is that the liability does not accrue if the work is done off premises which either belong to the principal or over which he has control or management. This is consonant with the principle of placing the burden on the shoulders of a man who has some opportunity of safeguarding against accidents. On, in, or about premises. The phrase "on, in, or about " is used in sec. 7 of the Act of 1897 and has been the subject of numerous decisions. The result of these appears to be that the word "about" in this context means " in close proximity to " rather than " concerned with " i.e., it is used with reference to the locality at which the accident occurred. The first case on the point is Powell v. Brown ([1899], 1 Q.B. 157). There a workman was injured while loading a cart at the entrance to a factory yard, and it was held by the Court of Appeal that the accident occurred " about " a factory. In Louth v. Ibbotson ( [1899], 1 Q.B. 1003), on the other hand, a carter in the employment of a factory owner was injured while unloading a cart at a distance of a mile and a half from the factory, and it was held that this was not " about " a factory. In Chambers v. Whitehaven Harbour Commissioners ([1899], 2 Q.B. 132) workmen were employed on a dredger at some harbour works which were engineering works within sec. 7 of the Act of 1897. Mud was got up in the dredgers and transferred to hoppers. The hoppers then proceeded to sea and the mud was thrown overboard. A workman was drowned while throwing SECTION IV 121 the mud from the hopper. It was held that this was not " about " the engineering work carried on on the dredger. In Fenn v. Miller ([1900], 1 Q.B. 788) a workman was injured while bringing a cart laden with materials to a factory and while still over 100 yards away from it. This was held not to be "about " the factory. In Turnbull v. Lambton (82 L.T. 589) a colliery company owned a private railway which was not a rail- way within the meaning of sec. 7 of the Act of 1897. A driver was killed on this line, and his dependants con- tended that this was " about " a mine. The Court of Appeal, however, decided that it was not. The case of Rogers v. The Mayor, etc., of Cardiff ([1905], 2 K.B. 832) is somewhat curious. There the applicant was a workman in the employment of a corporation who were the owners of a system of electric tramways, and his duty was to repair the overhead wires. On the day of the accident he had repaired the wires at one place by means of a tower-wagon. In proceeding along a street which followed the line of the tramway to a place at which he had also to repair the wires he was thrown from the wagon and injured. It was held that, having regard to the obligation on the corporation, as undertakers, to repair and keep in repair the whole extent of the tram- way system each act of repair could not be treated as a separate engineering work, and that it was competent to the arbitrator to find that the accident happened " about " the engineering work in which the workman was employed. The case of Back v. Dick, Kerr, d- Co. ( [1906], A.C. 325) gave rise to considerable differences of judicial opinion. In that case a workman in the service of con- tractors, who had undertaken to take up the rails of horse tramways in a town and lay down rails for electric tram- ways, was injured by an accident while engaged in unload- ing and stacking rails for the new tramways in a railway yard. The rails had been brought by the railway and the 122 THE WORKMEN'S COMPENSATION ACT, 1906 contractors were allowed by the railway company to use the yard for the storage of the rails till they were required for the tramway. At the time of the accident the only work begun under the contract was the taking up of rails in a street 700 yards from the railway yard. It was held by the majority of the House of Lords that the workman was not at the time of the accident employed on, in, or about an engineering work. In Andrews v. Andrews and Hears ([1908], 2 KB. 567) a workman was employed in connection with paving operations by a sub-contractor, his duties being to cart materials and remove rubbish. He was killed by a fall from his cart at a distance of two miles from the works. It was held that the accident had not occurred " on, in or about premises on which the principal contractor had undertaken to execute the work or which were otherwise under his control or management." See also Davies v. Ehymney Iron Company (16 T.L.B. 329); Francis v. Turner ([1900], 1 Q.B. 478); Middlemiss v. Berwickshire County Council (2 F. 392) ; Wrigley v. Whittaker ( [1902], A.C. 299) ; Pattison v. White (20 T.L.E. 775) ; Atkinson v. Lumb ([1903], 1 KB. 861). SECTION V 1. WHEEE any employer has entered into a con- Sec . 5. tract with any insurers in respect of any liability under this Act to any workman, then, in the event of the employer becoming bankrupt, or making a composition or arrangement with his creditors, or if the employer is a company in the event of the company having commenced to be wound up, the rights of the employer against the insurers as respects that liability shall, notwithstanding any- thing in the Enactments relating to bankruptcy and the winding up of companies, be transferred to and vest in the workman, and upon any such transfer the insurers shall have the same rights and remedies, and be subject to the same liabilities as if they were the employer, so however that the insurers shall not be under any greater liability to the workman than they would have been under to the employer. 2. If the liability of the insurers to the workman is less than the liability of the employer to the workman, the workman may prove for the balance in the bankruptcy or liquidation. 3. There shall be included among the debts 123 124 THE WORKMEN'S COMPENSATION ACT, 1906 which under sec. 1 of the Preferential Payments in Bankruptcy Act, 1888, and sec. 4 of the Preferential Payments in Bankruptcy (Ireland) Act, 1889, are in the distribution of the property of a bankrupt, and in the distribution of the assets of a company being wound up to be paid in priority to all other debts, the amount, not exceeding in any individual case one hundred pounds, due in respect of any compensation the liability wherefor accrued before the date of the receiving order or the date of the commencement of the winding up, and those Acts, and the Preferential Payments in Bankruptcy Amendment Act, 1897, shall have effect accord- ingly. Where the compensation is a weekly pay- ment the amount due in respect thereof shall, for the purposes of this provision, be taken to be the amount of the lump sum for which the weekly payment could, if redeemable, be redeemed if the employer made an application for that purpose under the First Schedule to this Act. 4. In the case of the winding up of a company within the meaning of the Stannaries Act, 1887, such an amount as aforesaid, if the compensation is payable to a miner or the dependants of a miner, shall have the like priority as is conferred on wages of miners by sec. 9 of that Act and that section shall have effect accordingly. 5. The provisions of this section with respect to preferences and priorities shall not apply where the bankrupt or the company being wound up has entered into such a contract with insurers as aforesaid. SECTION V 125 6. This section shall not apply where a company is wound up voluntarily merely for the purposes of reconstruction or of amalgamation with another company. The first subsection of this section corresponds roughly with sec. 5 of the Workmen's Compensation Act, 1897, but all the rest is new law. The scheme of sec. 5 of the Act of 1897 was to give to the workman a first charge on the sum paid by the insurers. The insurers of course would only be liable to pay the sum due to the workman, so in fact the latter would get it all. The method was for the county court judge to direct the insurers to pay the sum into the Post Office Savings Bank, and it was then invested in accordance with the first schedule to the Act. The following difficulty might arise under that section, and this section is designed to meet it : The workman's 'claim was of the nature of a proof in bankruptcy. Therefore his must be a provable debt, so far as his claim might have exceeded the sum he got from the insurers. If the amount had been ascertained before the bankruptcy, there was no diffi- culty. But if the employer became bankrupt between the accident and the final adjustment, it is not clear if the debt was provable. The Bankruptcy Act, 1883, sec. 37, says that debts are provable if they are " demands in the nature of unliquidated damages arising other than by reason of a contract promise or breach of trust." It might be argued that this is a demand arising out of the contract of employment. But it seems more probable that sec. 37 covers a case of workmen's com- pensation; and therefore in the case put the workman could recover nothing from the employer's estate. Pre- sumably also he could get nothing from the insurer, as the insurer would never become liable to the employer. Further than that, even if this view is wrong, sec. 10 of the Bankruptcy Act, 1883, says : " The Court may at 126 THE WORKMEN'S COMPENSATION ACT, 1906 any time after the presentation of a bankruptcy petition stay any action, execution, or other legal process against the property or person of a debtor." The rule seems to be that actions are stayed if the claim is one from which the discharge would release the debtor. Therefore it is very possible that a workman's claim might have been stayed and his right to compensation defeated. Subsec. 1 of this present Act expressly excludes all rules of bankruptcy, and puts the insurer in the place of the employer. It is not very clearly expressed, but obviously means that the workman is to take his proceed- ings against the insurer instead of against the employer ; and the words " be subject to ... employer " appear to get over any difficulty about unprovable debts. It should be noticed that this section only applies to contracts of insurance against liability under this Act. Therefore if the workman's claim arises under the Employers' Liability Act, 1880, or the common law, the section does not apply. Further, the section apparently does not apply to an unincorporated body which dissolves. Right of the employer against the insurers. This is inelegantly phrased ; for the employer's right is merely to be indemnified by the insurer for any sum he pays to the workman. The meaning is that the workman can recover from the insurer the same sum as the employer could have recovered if he (the employer) had paid compensa- tion to the workman. Same rights and remedies. Presumably from the date of the " transfer" all notices, claims, and so forth should be served on the insurer. The liability where/or accrued. The liability has not accrued due until the compensation is fixed either by agreement or arbitration. The Preferential Payments in Bankruptcy Act, 1888, 51 and 52 Vic. c. 62, sec. 1, says : " In the distribution of the property of a bankrupt and in the distribution of the assets of any company being wound up under the SECTION V 127 Companies Act, 1862, and the Acts amending the same, there shall be paid in priority to all other debts " (a) All . . . rates. (b) Wages for four months not exceeding JG50. (c) Wages of labourers up to J625. The other provisions of that Act enact that such sums as have priority are to be paid equally and in full, they are to be paid forthwith so far as possible, and in the case of a distraint they are to be a first charge. The Preferential Payments in Bankruptcy (Ireland) Act, 1889, 52 and 53 Vic. c. 60, sec. 4, practically extends the same provisions to Ireland. The Preferential Payments in Bankruptcy Amendment Act, 1897, 60 and 61 Vic. c. 19, protects these payments against debenture-holders and holders of floating charges. Where the compensation is a weekly payment, etc. When paid this lump sum would no doubt be used to purchase an annuity. The provisions for arriving at the sum contained in Sched. I. sec. 17 (q.v.) are as follows : Such a sum is to be paid as would, if the incapacity were permanent, be sufficient to purchase an annuity from the National Debt Commissioners equal to 75 per cent, of the periodical payments (see post, p. 230). The Stannaries Act, 1887, 50 and 51 Vic. c. 43, sec. 9, sets out complicated provisions having in effect the same result as this section. " Miner " is defined in the Act as including all artisans, labourers, and other persons working in and about a mine, except the purser, secretary, agent, or manager. SECTION VI Sec. 6. WHEKE the injury for which compensation is payable under this Act was caused under cir- cumstances creating a legal liability in some person other than the employer to pay damages in respect thereof: 1. The workman may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for such compensation, but shall not be entitled to recover both damages and compensation; and 2. If the workman has recovered compensation under this Act, the person by whom the com- pensation was paid, and any person who has been called on to pay an indemnity under the section of this Act relating to sub-contracting, shall be entitled to be indemnified by the person so liable to pay damages as aforesaid, and all questions as to the right to and amount of any such indemnity shall, in de- fault of agreement, be settled by action, or, by consent of the parties, by arbitration under this Act. 128 SECTION VI 129 This section differs in several respects from the cor- responding one in the Workmen's Compensation Act, 1897. That Act gave the workman an option as to whether he would sue his employer or the stranger. He could not sue both. Now this might work an injustice on him or rather it might make him pay too high a price for an error of judgment. For he might fail in his action e.g., owing to the Court deciding that there was no negligence on the part of the defendant. He would then have exercised his option, and so be debarred from taking compensation proceedings against his employer, although his claim against the latter might be otherwise unanswerable. Or, again, he might recover a trifling sum as compensation, and then be unable to bring an action in which he claimed a much greater sum. The present section gets over this difficulty by giving to the workman the right to take both proceedings, although this is limited by only permitting him to recover one amount of money. It should be noticed that sec. 6 of the Workmen's Compensation Act, 1897, gave no new rights to a work- man, and only had the effect of limiting those which he already had by the combined operation of the common law and the other sections of the Act. This present section does away with any such limitation, and has, it is submitted, no effect in either enlarging or limiting the rights which the workman would have had without it. It was probably thought necessary to insert it in the Act in order to make it clear that the limitations imposed by sec. 6 of the Act of 1897 had been done away with. But it is suggested that the law would be the same if sub-section (i) were omitted altogether. Circumstances creating a legal liability. It has been held in Page v. Burtwell ([1908], 2 K.B. 758) that these words mean circumstances creating a primd facie legal liability, not necessarily a claim prosecuted to judgment. In that case a workman made a claim against a third party, who admitted the justice of the claim and paid the 9 130 THE WORKMEN'S COMPENSATION ACT, 1906 workman a weekly sum, It was held that he had re- covered damages against a stranger and could not com- mence compensation proceedings against his employer. And compare with this Oliver v. Nautilus Company ([1903], 2 KB. 639). Where the injury for which compensation is payable. These words are, of course, not strictly accurate, for it is only after the compensation proceedings have been taken that it is possible to tell whether an injury is one for which compensation is payable. It would be more exact to say " an injury for which it is alleged that compensa- tion is payable." In the same way, it should be noticed that, if a work- man fail in his compensation proceedings, there is no "injury for which compensation is payable," and there- fore the section does not come into operation at all. This section must be distinguished from the cases where the workman has an alternative remedy against the employer. In such a case he has to make his choice as to which remedy he will pursue and is bound by his choice (cf. Edwards v. Godfrey ([1899], 2 Q.B. 333), and see pp. 72-75). Both damages and compensation. What would be the position if both proceedings are running at once, as will no doubt frequently be the case ? One set of proceedings is finished first say, the action. The workman has then recovered damages. Suppose a few days later an award of compensation is made and is for a greater sum. May the workman elect to take the compensation ? Prima facie it would appear that he cannot, as he has already recovered damages, and the section says he may not get both. Nevertheless, it is submitted, with considerable doubt, that it is the meaning and intention of the section that in such a case he may take the larger sum. Other- wise the double remedy given would be useless except where the workman entirely failed in the first proceed- ings. Now it has already been pointed out that where the workman takes compensation proceedings first and SECTION VI 131 fails altogether, the section does not apply at all. If we have to say, as a literal interpretation of these words compels us to, that it does not apply in either of the cases where a small sum is recovered in the first pro- ceedings, it leaves only one possible case where the section could apply i.e., where the first proceedings are an action and fail altogether. It is submitted, therefore, that what is meant by these words is that the workman may not take two sums, but only one, and that he may recover in the second proceed- ings although he has been successful in the first, keeping only that sum damages or compensation, as the case may be which is the greater. Subsec. 2 is an elaboration of the concluding words of sec. 6 of the Workmen's Compensation Act, 1897. That Act only gave the indemnity to the employer himself. It is now given to any one who has paid the compensation, who might be the employer, or the insurer (see sec. 5, p. 123), or the "principal" (see sec. 4, p. 112), and also to any person who has had to pay an indemnity under sec. 4 i.e., the "contractor." The person by whom, etc., and any person, etc. This is presumably disjunctive. If, therefore, the " principal" is only partially indemnified by the " contractor," owing to the latter's bankruptcy, each could recover the amount he had paid from the indemnifying party. Indemnity. The indemnity includes the costs of the proceedings in arbitration (see Great Northern Railway Company v. Whitehead, 18 T.L.E. 816). Arbitration. If an indemnity is sought under sec. 4, there is no right to choose the tribunal, and the matter must be settled by arbitration ; and it will be remembered that the Rule Committee have taken the view that this is the same arbitration as the one in which the compensa- tion is fixed (see p. 119). Under this section the parties can choose their tribunal, and it is easy to see that the indemnity question could not always be settled at the original arbitration, for very often the employer will not 132 THE WORKMEN'S COMPENSATION ACT, 1906 know of the indemnifying party until an award of com- pensation is made. It should be noticed that the section adopts the principle laid down in Evans v. Cook ([1905], 1 KB. 53). By consent of the parties. This provision may be very useful, as it will enable the parties to take the matter before the arbitrator who made the award. SECTION VII 1. THIS Act shall apply to masters, seamen, and Sec. 7. apprentices to the sea service, and apprentices in the sea-fishing service, provided that such per- sons are workmen within the meaning of this Act, and are members of the crew of any ship registered in the United Kingdom, or of any other British ship or vessel of which the owner, or (if there is more than one owner) the managing owner, or manager resides or has his principal place of business in the United Kingdom, subject to the following modifications : (a) The notice of accident and the claim for compensation may, except where the person injured is the master, be served on the master of the ship as if he were the employer, but where the accident happened and the in- capacity commenced on board the ship it shall not be necessary to give any notice of the accident ; (b) In the case of the death of the master, seaman, or apprentice, the claim for com- pensation shall be made within six months 133 134 THE WORKMEN'S COMPENSATION ACT, 1906 after news of the death has been received by the claimant ; (c) Where an injured master, seaman, or ap- prentice is discharged or left behind in a British possession or in a foreign country, depositions respecting the circumstances and nature of the injury may be taken by any judge or magistrate in the British possession, and by any British consular officer in the foreign country, and if so taken shall be trans- mitted by the person by whom they are taken to the Board of Trade, and such depositions or certified copies thereof shall in any pro- ceedings for enforcing the claim be admissible in evidence as provided by sees. 691 and 695 of the Merchant Shipping Act, 1894, and those sections shall apply accordingly ; (d) In the case of the death of a master, seaman, or apprentice, leaving no dependants, no com- pensation shall be payable if the owner of the ship is, under the Merchant Shipping Act, 1894, liable to pay the expenses of burial ; (e) The weekly payment shall not be payable in respect of the period during which the owner of the ship is, under the Merchant Shipping Act, 1894, as amended by any subsequent enactment, or otherwise, liable to defray the expenses of maintenance of the injured master, seaman, or apprentice ; (/) Any sum payable by way of compensation by the owner of a ship under this Act shall be paid in full, notwithstanding anything in SECTION VII 135 sec. 503 of the Merchant Shipping Act, 1894 (which relates to the limitation of the ship- owner's liability in certain cases of loss of life, injury, or damage), but the limitation on the owner's liability imposed by that section shall apply to the amount recoverable by way of indemnity, under the section of this Act relating to remedies both against employer and stranger, as if the indemnity were damages for loss of life or personal injury. (g) Subsecs. 2 and 3 of sec. 174 of the Mer- chant Shipping Act, 1894 (which relates to the recovery of wages of seamen lost with their ship), shall apply as respects proceed- ings for the recovery of compensation by de- pendants of masters, seamen, and apprentices lost with their ship as they apply with respect to proceedings for the recovery of wages due to seamen and apprentices ; and proceedings for the recovery of compensation shall in such a case be maintainable if the claim is made within eighteen months of the date at which the ship is deemed to have been lost with all hands ; 2. This Act shall not apply to such members of the crew of a fishing vessel as are remune- rated by shares in the profits or the gross earn- ings of the working of such vessel. 3. This section shall extend to pilots to whom Part X. of the Merchant Shipping Act, 1894, applies, as if the pilot when employed on any 136 THE WORKMEN'S COMPENSATION ACT, 1906 such ship as aforesaid were a seaman and a member of the crew. This section embodies an entirely new principle. None of the earlier Acts dealing with workmen's compensation or employers' liability apply to seamen. This seems a little curious when we remember that seamen have always been the favourites of the Legislature. They have been presumed by the law with how much of truth is not known to be a class of people peculiarly unable to take care of themselves, and in several matters they have been put in an exceptionally favourable position e.g., by the Wills Act, and by the various provisions in the Merchant Shipping Acts by which the freedom of contract between owner and seamen has been hedged round by restrictions in favour of the sailors. It would appear inconsistent, therefore, if in this matter they had been left in a position less favourable than the rest of the population. It had been contended that sailors were within the provisions of the Act of 1897, but this contention was overruled by the House of Lords in Houlder Line, Ltd., v. Griffin ([1905], A.C. 220), on the ground that the shipowner was not an " undertaker " within the meaning of the Act. Masters. The Merchant Shipping Act, sec. 742, defines a master as including " every person (except a pilot) having command or charge of any ship." Seamen. The same section defines a seaman as including " every person (except masters, pilots, and apprentices duly indentured and registered) employed or engaged in any capacity on board any ship." The meaning of " seaman " was discussed in the fol- lowing cases : R. v. Judge of City of London Court (25 Q.B.D. 339); Ee Great Eastern Steam Shipping Company (5 Asp.M.C. 511); Thomson v. Hart (28 S.L.K 28). Apprentices. As to the position of apprentices to the SECTION VII 137 sea service and sea-fishing services respectively, see the Merchant Shipping Act, sees. 105-109 and sees. 392-398. " Boys " and " apprentices " are in a different position, and this Act does not apply to " boys." An apprentice would presumably be under twenty-one, and, if injured, would accordingly get compensation on the scale set out in para. 1 (b) of the first schedule (see p. 198). Registered British Ship. By the Merchant Shipping Act, sec. 2, subsec. 1 : Every British ship shall, unless exempt from registry, be registered under this Act. By sec. 1 : A ship shall not be deemed to be a British ship unless owned wholly by persons of the following description (in this Act referred to as persons qualified to be owners of British ships), namely: (a) natural born British subjects ; (6) persons naturalised by or in pursuance of an Act of Parliament of the United Kingdom, or by or in pur- suance of an Act or ordinance of the proper legislative authority in a British possession ; (c) persons made denizens by letters of denization; and (d) bodies corporate established under and subject to the laws of some part of her Majesty's dominions, and having their principal place of business in those dominions. Provided that any person who either (i) being a natural born British subject, has taken the oath of allegiance to a foreign sovereign or state, or has otherwise become a citizen or subject of a foreign state; or (ii) has been naturalised or made a denizen as afore- said ; shall not be qualified to be owner of a British ship unless, after taking the said oath or becoming a citizen or sub- ject of a foreign state, or on or after being naturalised or made a denizen as aforesaid, he has taken the oath of allegiance to Her Majesty the Queen, and is during the 138 THE WORKMEN'S COMPENSATION ACT, 1906 time he is owner of the ship either resident in Her Majesty's dominions or partner in a firm actually carrying on business in Her Majesty's dominions. In accordance with this, a British ship means presum- ably only such ships as are owned by persons qualified to own British ships, as above defined, and ships built for such persons, if, on completion, they become the property of such persons. A ship built in England to be delivered to foreigners has been held not to be a British ship for the purposes of registration, although still the property of the builders (Union Bank v. Lenanton, 3 C.P.D. 243; and Chartered Bank of India v. Netherlands India Steam Navigation Co., 10 Q.B.D. at p. 534, and see Abbott on Merchant Shipping, 14th ed., p. 81). Or any other British ship or vessel. This must mean the two classes of ships which need not be registered, viz. : (i) Ships not exceeding 15 tons burden employed solely in navigation on the rivers or coasts of the United Kingdom or on the rivers or coasts of some British possession within which the managing owners of the ships are resident. (ii) Ships not exceeding 30 tons burden, and not having a whole or fixed deck, and employed solely in fishing or trading coastwise on the shores of New- foundland or parts adjacent thereto, or in the Gulf of St. Lawrence, or on such portions of the coasts of Canada as lie bordering on that gulf. Ship. The Merchant Shipping Act, 1894, sec. 742' defines ships as including " every description of vessel used in navigation not propelled by oars." Vessel. The same section defines vessel as including " any ship or boat or any other description of vessel used in navigation." An owner may register his ship at any port he chooses (see Abbott on Merchant Shipping, 14th ed., p. 89). So presumably the latter part of subsec. 1 would include ships registered in the colonies, so long as they were SECTION VII 139 British ships and their owner or manager, etc., resided in the United Kingdom, As to the Modifications. (a) Where it is the mastei himself who is injured, there is no special provision as to the way the notice is to be served or the claim made. He must therefore give his notice " as soon as practicable " (see sec. 2, p. 91). That would, if the injury took place in a foreign port, mean by the next homeward mail. If the accident happens on the ship, no notice need be given. But even then he must make his claim for compensation within six months. But if he is unable to do so owing to the movements of his ship, he would no doubt be protected by proviso (b) of sec. 2, subsec. 1. Notice that the seamen need give no " notice of accident " if the accident occurs on the ship, but they are not exempted from making the " claim for compensa- tion " within the ordinary time. Such a claim may be served on the master ; but it may be served on the employer if the seaman prefers to do so. (b) Compare this with (g), infra (q.v.). (c) The Merchant Shipping Act, 1894, sect. 691: "Whenever in the course of any legal proceedings insti- tuted in any part of her Majesty's dominions, before any judge or magistrate, or before any person authorised by law or by consent of parties to receive evidence, the testimony of any witness is required in relation to the subject-matter of that proceeding, then upon due proof, if the proceeding is instituted in the United Kingdom, that the witness cannot be found in that kingdom, or if in any British possession that he cannot be found in that possession, any deposition that the witness may have previously made on oath in relation to the same subject-matter before any justice or magistrate in her Majesty's dominions, or any British consular officer else- where, shall be admissible in evidence provided that : (a) "if the deposition was made in the United Kingdom, it shall not be admissible in any proceeding instituted in the United Kingdom ; and 140 THE WORKMEN'S COMPENSATION ACT, 1906 (b) "if the deposition was made in any British posses- sion, it shall not be admissible in any proceeding instituted in that British possession ; and (c) " if the proceeding is criminal it shall not be admissible, unless it was made in the presence of the person accused." The Merchant Shipping Act, 1894, sec. 695, deals with the method of making such documents admissible, their proof, etc. Notice that this modification (c) only applies if the injured person is left behind in the British possession. If he comes home with his ship, he cannot make use of such depositions although the witnesses of the accident may have gone abroad again on another voyage. (d) If the owner . . . is liable, etc. This refers to the Merchant Shipping Act, 1894, sec. 207 : "If the master of, or a seaman or apprentice belonging to, a ship receives any hurt or injury in the service of the ship ... in case of death the expense (if any) of his burial shall be defrayed by the owner of the ship, without any deduction on that account from his wages." As to what constitutes the " service of the ship," see Secretary of the Board of Trade v. Sundholm, 4 Asp.M.C. 196. (e) Sec. 207 of the Merchant Shipping Act, 1894, says : "If the master of or a seaman or apprentice belonging to a ship receives any hurt or injury in the service of the ship . . . the expenses of the maintenance of the master, seaman, or apprentice, until he is cured or dies, or is brought back, if shipped in the United Kingdom, to a port of the United Kingdom, or if shipped in a British possession, to a port of that possession, and of his conveyance to the port . . . shall be defrayed by the owner of the ship, without any deduction on that account from his wages." (/) Sec. 503 of the Merchant Shipping Act, 1894, limits the liability of the owner for loss of life or personal injury to an aggregate sum not exceeding 15 per ton of his ship's burden. SECTION VII 141 That section has been amended by the following Acts : 1. The Merchant Shipping (Liability of Shipowners) Act, 1898, 61 and 62 Vic. c. 14. 2. The Merchant Shipping (Liability of Shipowners and others) Act, 1900, 63 and 64 Vic. c. 32. The latter part of (/) deals with cases where an indemnity might be claimed under sec. 6. If a ship be sunk and her crew lost in a collision brought about by the negligence of another ship, then the owner of the ship sunk must pay to the dependants of the men lost the full amount to which they are entitled under the schedules of this Act ; but such owner can only recover from the owner of the other ship as indemnity a maximum sum of 15 per ton of the ship's (i.e. the ship in fault) burden. It is submitted that the aggregate amount of 15 per ton refers to the total amount recovered. So that if the first owner have other claims as, e.g., for damage done to his ship as well as those under sec. 6 of this Act, still he cannot recover more in all than the " aggregate " amount. (g) Section 174 of the Merchant Shipping Act, 1894 : By subsec. 1 the Board of Trade can recover the wages of seamen lost with their ships, and deal with them by distribution as if they had died. By subsec. 2: "In any proceeding for the recovery of the wages, if it is shown by some official return produced out of the custody of the Registrar General of Shipping and Seamen, or by other evidence, that the ship has twelve months and upwards before the institution of the proceedings, left a port of departure, she shall, unless it is shown that she has been heard of within twelve months after that departure, be deemed to have been lost with all hands on board, either immediately after the time she was last heard of, or at such later time as the Court hearing the case may think probable." By subsec. 3 : " Any duplicate agreement or list of the 142 THE WORKMEN'S COMPENSATION ACT, 1906 crew made out, or statement of a change of the crew delivered, under this Act, at the time of the last departure of the ship from the United Kingdom, or a certificate purporting to be a certificate from a consular or other public officer at any port out of the United Kingdom, stating that certain seamen and apprentices were shipped in the ship from the said port, shall, if produced out of the custody of the Registrar General of Shipping and Seamen, or of the Board of Trade, be, in the absence of proof to the contrary, sufficient proof that the seamen and apprentices therein named as belonging to the ship were on board at the time of the loss." (2) Members of the crew remunerated by shares in the profits. It is not clear whether these people would be included in the definition of " workman " given in sec. 13 of this Act; but presumably this subsection would not have been inserted unless it had been thought that the people referred to were " workmen " ; and it is submitted that the contract they enter into is clearly one of " service." (3) Part X. of the Merchant Shipping Act, 1894, deals with pilots. By the definition clause (sec. 742) "pilot" includes any person not belonging to the ship who has the conduct thereof. Pilots are licensed by pilotage authorities and are then called qualified pilots (sec. 586). Apparently this Act would only apply to qualified pilots. Difficult cases may arise as to when a pilot is " em- ployed on a ship." Suppose he falls into the sea when getting on or off, or remains on the ship for a short time after his employment is finished and is then injured. On the analogy of the cases on " course of employment," " about a factory," etc. (see ante), it may be suggested that the pilot would still be " employed on a ship " while getting on and off, etc. ; but it is not possible to give any definite opinion till the matter has been before the Courts. SECTION VIII (i) the certifying surgeon appointed under the Factory and Workshop Act, 1901, for the district in which a workman is employed certifies that the workman is suffering from a disease mentioned in the Third Schedule to this Act and is thereby disabled from earning full wages at the work at which he was employed ; or (ii) a workman is, in pursuance of any special rules or regulations made under the Factory and Workshop Act, 1901, suspended from his usual employment on account of having contracted any such disease ; or (iii) the death of a workman is caused by any such disease ; and the disease is due to the nature of any em- ployment in which the workman was employed at any time within the twelve months previous to the date of the disablement or suspension, whether under one or more employers, he or his dependants shall be entitled to compensation under this Act as if the disease or such suspen- Sec - 8 Subsec. 1. 143 14:4 THE WORKMEN'S COMPENSATION ACT, 1906 si on as aforesaid were a personal injury by accident arising out of and in the course of that employment, subject to the following modifica- tions : This is quite new law, and brings within the scope of the Act a class of misfortune which arises " out of and in the course of " certain employments even more frequently and inevitably than " accidents." It may now happen that a particular occurrence is both an industrial disease and an accident within the Act. For instance, it has been held that anthrax can be caused by an accident (Brintons, Ltd., v. Turvey [1905] , A.C. 230), and in such a case the advisers of the workman might have to decide under which section it was more advantageous to proceed. The certifying surgeon. This official is appointed under sec. 122 of the Factory and Workshop Act, 1901, 1 Edw. VII. c. 22. Third Schedule. The list of diseases mentioned is being added to from time to time in accordance with the recommendations of a Royal Commission appointed for the purpose. See note on subsec. 6 of this section, infra, p. 152. At the work at which he was employed. It is therefore no defence to show he could earn equally good wages at some other work. But if he were in fact doing so, the award would only be for a nominal sum ; and the work- man could have the award revised if his capacity decreased later on as a result of the disease (see note on Sched. I. infra, p. 225). Regulations made under the Factory and Workshop Act. The power to make such regulations is given to the Secretary of State by sees. 79-86 of that Act. The death of a workman is caused by any such disease. Cases may arise in which it is difficult to say what is the cause of death. For instance, the shock of the indus- SECTION VIII 145 trial disease might bring on some other illness, which latter is the immediate cause of death. In such cases it would be necessary for the arbitrator to decide whether the industrial disease was the causa sine qua non. If it were the dependants would be entitled to compensa- tion. The disease is due to the nature of the employment. Notice that the words are not " the surgeon says the disease is due," therefore this is a fact to be determined by the arbitrator in each case. Industrial diseases are so closely connected with particular trades that it is not likely that serious questions will arise on this point. But it sometimes happens that the disease may be due either to the nature of the employment or to some other cause. Thus in Haylett v. Vigor d Co. ([1908], 2 KB. 837) the workman, a painter, had died from granular kidney. This is a sequela of lead-poisoning and also of other diseases. It was not proved that lead-poisoning was the cause of death, but neither was it proved by the employer that it was not. Under these circumstances it was held that the dependants of the deceased workman were not entitled to compensation. As if the disease were a personal injury by accident. It may be both. If so, the time for making the claim might differ ; for if it is treated as an accident the time runs from the happening of the accident, and if as a disease from the date of suspension or disablement; therefore in some cases the workman might gain addi- tional time by treating it as a disease. (a) The disablement or suspension shall be treated as the happening of the accident; (6) If it is proved that the workman has at the time of entering the employment wilfully and falsely represented himself in writing as not having previously suffered from the disease, compensation shall not be payable. 10 146 THE WORKMEN'S COMPENSATION ACT, 1906 It will no doubt become a practice to get such a decla- ration from the workman. Notice that the employer is only protected if the representation is made at the time of entering the employment. Therefore men who have had such a disease before this Act came into force, and who were in a situation at the time of its commencement, will be within this section so long as they remain in the same employment ; for it is not possible that they could have signed any such representation " at the time of entering the employment." If the representation is in fact untrue, it is hard to see how it could be other than " wilful and false." (c) The'compensation shall be recoverable from the employer who last employed the workman during the said twelve months in the employ- ment to the nature of which the disease was due. Provided that (i) the workman or his dependants if so required shall furnish that employer with such infor- mation as to the names and addresses of all the other employers who employed him in the employment during the said twelve months as he or they may possess, and, if such infor- mation is not furnished, or is not sufficient to enable that employer to take proceedings under the next following proviso, that em- ployer upon proving that the disease was not contracted whilst the workman was in his employment, shall not be liable to pay compensation ; and (ii) if that employer alleges that the disease was in fact contracted whilst the workman was in SECTION VIII 147 the employment of some other employer, and not whilst in his employment, he may join such other employer as a party to the arbitra- tion, and if the allegation is proved that other employer shall be the employer from whom the compensation is to be recoverable ; and (iii) if the disease is of such a nature as to be contracted by a gradual process, any other employers, who during the said twelve months employed the workman in the employment to the nature of which the disease was due, shall be liable to make to the employer from whom compensation is recoverable such contri- butions as, in default of agreement, may be determined in the arbitration under this Act for settling the amount of the compensation ; Modification (c) with the three provisos and the rules made under it (Rule 39, sec. 4, a, b, c, and d) points out the person from whom the compensation is to be recovered. If the workman has only served one employer during the twelve months there is no difficulty. If he has served more than one employer, and the employer sued has reason to believe that the disease was contracted in the service of one of the others, he must require the workman to supply him with the name and address of all the other em- ployers. If the workman fails to furnish such informa- tion, then the employer has only to prove that the disease was not contracted in his service in order to be successful. On the other hand, if the information is furnished, it becomes the duty of the employer to bring before the arbitrator the other employer in whose service he alleges the disease was contracted. The arbitrator will then decide if the allegation be true, and if so the second employer has to pay the compensation. 148 THE WORKMEN'S COMPENSATION ACT, 1906 It is submitted that it is always wise for the employer to ask the workman to furnish the information as to the name and address of the other employer, even if he, the first employer, already knows it. For if the workman fails to furnish it, then the employer is relieved of the duty, which may be a troublesome one, of fixing the second employer with the liability. Kule 39, sec. 4 (a-d), deals with this subject. The method of making a second employer a party is to file a notice with the registrar, who thereupon adds his name as a respondent, and when the matter comes before the arbitrator he finally adjusts the rights of all the parties. Proviso (iii) deals with the position when the disease is of such a nature as to be contracted gradually. Notice that the Act does not say " if the disease is in fact con- tracted gradually." It has apparently been considered that it is not possible in the case of such diseases as, e.g., lead-poisoning, to fix any particular moment at which the disease commenced ; and it has therefore not been left open to any employer to show that the disease was in fact contracted uno ictu; but in such cases all the em- ployers, who during the previous twelve months have employed the workman in the employment to the nature of which the disease is due have to contribute. The employers do not necessarily contribute in equal proportions, but the amount is to be apportioned pre- sumably in proportion to the amount of money which the workman has earned from each employer during the specified twelve months. At any rate, it is submitted that this would be the most reasonable method, as it takes into account both the time spent in the service of each employer and the weekly wages earned. (d) The amount of the compensation shall be calculated with reference to the earnings of the workman under the employer from whom the compensation is recoverable ; SECTION VIII 149 This is sufficiently clear. Under provisos (i) and (ii), supra, the employer who is finally adjudged to be the one on whose premises the disease was contracted is "the employer from whom compensation is recoverable " ; under (iii) the " employer from whom compensation is recoverable" is the one who is first made a respondent the others merely contribute towards the compensation. (e) The employer to whom notice of the death, disablement, or suspension is to be given shall be the employer who last employed the workman during the said twelve months in the employment to the nature of which the disease was due, and the notice may be given notwithstanding that the workman has voluntarily left his employment ; The last words are, of course, necessary to cover the case where the workman had left the employment before the disease manifested itself. (/) If an employer or a workman is aggrieved by the action of a certifying or other surgeon in giving or refusing to give a certificate of disablement . or in suspending or refusing to suspend a workman for the purposes of this section, the matter shall, in accordance with regulations made by the Secretary of State, be referred to a medical referee, whose decision shall be final. Sec. 10 (q.v., infra, p. 158) deals with medical referees. 2. If the workman at or immediately before the date of the disablement or suspension was 150 THE WORKMEN'S COMPENSATION ACT, 1906 employed in any process mentioned in the second column of the Third Schedule to this Act, and the disease contracted is the disease in the first column of that schedule set opposite the description of the process, the disease, except where the certify- ing surgeon certifies that in his opinion the disease was not due to the nature of the employ- ment, shall be deemed to have been due to the nature of that employment unless the employer proves the contrary. In order to recover compensation for an industrial disease, the claimant has to prove (inter alia) that the disease is due to the nature of his employment. This subsection deals with the manner of proof in this way. It refers to a schedule in which a list of diseases is placed opposite a list of employments. If the workman is em- ployed in one of the employments there mentioned and contracts the corresponding disease, then it is to be pre- sumed by the Court that the disease was due to the nature of the employment, except in cases where the certifying surgeon certifies that in his opinion such is not the case, and unless the employer proves the contrary. The result of this is that where the disease and employment " cor- respond " in the schedule, the onus of proving that the disease is not due to the nature of the employment is on the employer. But if the disease and the employment do not " correspond " in the schedule, then the onus is on the workman to show that the disease is in fact due to the nature of the employment. But where death ensues the onus of proving that the death was caused by the disease is on the dependants (see Haylett v. Vigor [1908] , 2 K.B. 837, ante, p. 145). Notice that the workman can only recover if his disease is one of those mentioned in the schedule, and tbe section does not apply to other illnesses. But apparently the SECTION VIII 151 disease may be contracted in the course of any employ- ment, if the workman can show it is due to the nature of the employment. 3. The Secretary of State may make rules Seo.s, Subsec. 3. regulating the duties and fees of certifying and other surgeons (including dentists) under this section. A dentist is not a medical practitioner (the Dentists Act, 1878, sec. 27). Therefore, semble, he could have no duties under this Act. But dentists are often qualified medical practitioners as well ; and such people apparently could be appointed certifying surgeons, and would be entitled to fees for work done for which a dentist's knowledge was requisite. For instance, some forms of phosphorus-poisoning affect the teeth, and presumably, therefore, a certifying surgeon who was also a dentist would be entitled to fees for work done by him qua dentist in such cases. The rules made under this sub- section are set out in Appendix E. 4. For the purposes of this section, the date Sec. s, of disablement shall be such date as the certify- ing surgeon certifies as the date on which the disablement commenced, or, if he is unable to certify such a date, the date on which the cer- tificate is given : Provided that (a) Where the medical referee allows an appeal against a refusal by a certifying surgeon to give a certificate of disablement, the date of disablement shall be such date as the medical referee may determine ; (b) Where a workman dies without having obtained a certificate of disablement, or is at 152 THE WORKMEN'S COMPENSATION ACT, 1906 the time of death not in receipt of a weekly payment on account of disablement, it shall be the date of death. As to the respective duties of medical referees and certifying surgeons under this section, see ante, p. 40. 5. In such cases and subject to such conditions as the Secretary of State may direct, a medical practitioner, appointed by the Secretary of State for the purpose, shall have the powers and duties of a certifying surgeon under this section, and this section shall be construed accordingly. This subsection gives power to the Home Secretary to appoint additional certifying surgeons under this Act, in case the number appointed under the Factory and Workshop Act should not be sufficient to cope with the additional work. A medical practitioner is denned by the Medical Act, 1858, sec. 34. There does not seem to be any distinction taken between the words "medical" and "surgical" in this section. 6. The Secretary of State may make orders for extending the provisions of this section to other diseases and other processes, and to injuries due to the nature of any employment specified in the order not being injuries by accident, either without modification or subject to such modifications as may be contained in the order. A Commission is now making inquiries into the nature of industrial diseases, with a view to adding to the list of diseases and employments to which this section applies. The Home Secretary has already made one SECTION VIII 153 order adding to the list (May 22, 1907. Cd. 8539). See Appendix I. The sentence "and to injuries due . . . injuries by accident " is hard to understand. After the very wide interpretation which has been put upon the word " acci- dent," one would have thought that all physical injuries which a workman could suffer would be either diseases or accidents ; and it is, therefore, somewhat hard to see what manner of disaster can be here referred to. 7. Where, after inquiry held on the application Sec. s, , f r . Subsec. 7. of any employers or workmen engaged in any industry to which this section applies, it appears that a mutual trade insurance company or society for insuring against the risks under this section has been established for the industry, and that a majority of the employers engaged in that industry are insured against such risks in 4he company or society, and that the company or society consents, the Secretary of State may, by Provisional Order, require all employers in that industry to insure in the company or society upon such terms and under such conditions and subject to such exceptions as may be set forth in the Order. Where such a company or society has been established, but is confined to employers in any particular locality or of any particular class, the Secretary of State may, for the purposes of this provision, treat the industry, as carried on by employers in that locality or of that class, as a separate industry. 8. A Provisional Order made under this section Sec. s, i n Subseo. 8. snail be ot no force whatever unless and until it is Sec. 8, Subsec. 9. 154 THE WORKMEN'S COMPENSATION ACT, 1906 confirmed by Parliament, and if, while the Bill confirming any such Order is pending in either House of Parliament, a petition is presented against the Order, the Bill may be referred to a Select Committee, and the petitioner shall be allowed to appear and oppose as in the case of Private Bills, and any Act confirming any Pro- visional Order under this section may be repealed, altered, or amended by a Provisional Order made and confirmed in like manner. 9. Any expenses incurred by the Secretary of State in respect of any such Order, Provisional Order, or confirming Bill, shall be defrayed out of moneys provided by Parliament. The scheme laid down in these three subsections is quite new. In order to bring the subsections into operation it must be shown that (i) Such a society exists for the industry, and is willing that the Order should be made ; (ii) the majority of employers are already insured in it. If such a state of facts exists, then, on the application of any of the employers or workmen, the Home Secre- tary may require all the remaining employers to insure in it. Should an employer neglect to insure after a Pro- visional Order has been made, no method is pointed out in the Act of compelling him to do so. With regard to Provisional Orders, see "Dodd and Wilberforce on Private Bill Procedure," p. 71. Any employers or workmen. Apparently two of either class are sufficient to make the application. sec. s, 10. Nothing in this section shall affect the rights Subsec. 10. of a workman to recover compensation in respect SECTION VIII 155 of a disease to which this section does not apply, if the disease is a personal injury by accident within the meaning of this Act. This section refers to cases like Brintons, Ltd., v. Turvey ( [1905] , A.C. 230), where it was held that a disease which was contracted in a " fortuitous and unexpected " manner was an injury by accident within the meaning of the Workmen's Compensation Act, 1897. In that case the disease (anthrax) was caused by a germ entering the man's eye. SECTION IX Sec. 9, 1. THIS Act shall not apply to persons in the naval or military service of the Crown, but other- wise shall apply to workmen employed by or under the Crown to whom this Act would apply if the employer were a private person. Provided that in the case of a person employed in the private service of the Crown, the head of that department of the Eoyal Household in which he was employed at the time of the accident shall be deemed to be his employer. The first paragraph of this section is taken almost verbatim from the Act of 1897, with only such verbal alterations as are necessary to fit in with the wider scope of the present Act. The second paragraph is new. Persons in the naval or military service of the Crown. Persons subject to military law are defined in the Army Act, 1881 (44 and 45 Vic. c. 58), sees. 175, 176. Persons subject to Naval Law are defined in the Naval Discipline Act, 1861 (24 and 25 Vic. c. 115), sec. 77. Provided that in the case of a person employed. This proviso is to meet the difficulty caused by the rule that no action lies against the Crown ; tbe only remedy apart from this section would be by petition of right. Sec. 9, 2. The Treasury may, by warrant laid before Subsec. 2. J> J Parliament, modify for the purposes of this Act 156 SECTION IX 157 their warrant made under sec. 1 of the Super- annuation Act, 1887, and notwithstanding anything in that Act, or any such warrant, may frame schemes with a view to their being certified by the Eegistrar of Friendly Societies under this Act. This is almost identical with the corresponding provision in the Workmen's Compensation Act, 1897. Superannuation Act, 1887, 50 and 51 Vic. c. 67, sec. 1. " Where a person employed in the civil service 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 nature of his duty, the Treasury may grant to him, or, if he dies from the injury, to his widow, his mother, if wholly dependent on him at the time of his death, and to his children, 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." The warrant may be found in the House of Commons Sessions Paper, 1887, No. 349, and is in some respects more stringent than the provisions of this Act, but does not apply to such a large class of persons as the " dependants " under this Act. Scheme . . . certified. As to this see the note on sec. 3, supra, pp. 104-11. SECTION X 10. 1. THE Secretary of State may appoint such legally qualified medical practitioners to be medical referees for the purposes of this Act as he may, with the sanction of the Treasury, determine, and the remuneration of and other expenses incurred by medical referees under this Act shall, subject to regulations made by the Treasury, be paid out of moneys provided by Parliament. Where a medical referee has been employed as a medical practitioner in connection with any case by or on behalf of an employer or workman or by any insurers interested, he shall not act as medical referee in that case. 2. The remuneration of an arbitrator appointed by a judge of county courts under the Second Schedule to this Act shall be paid out of moneys provided by Parliament in accordance with regula- tions made by the Treasury. It is not easy to see why two such totally different matters as the method of appointing medical referees and the remuneration of arbitrators should be included in one section. In the Workmen's Compensation Act, 1897, the 158 SECTION X 159 latter question is dealt with in the second schedule (sec. 3). With regard to medical referees and their duties see Sec. 8 and Sched. I. para. 15 and Sched. II. para. 15 and the notes thereon. These duties are two-fold : they may have to decide differences between employer and workman on the medical certificate (Sched. I. para. 15) or they may have questions which arise during the arbi- tration referred to them by the arbitrator (Sched. II. para. 15) (and see also Chapter I. pp. 40-43). .The rules regulating the duties of medical referees under Sec. 8 are set out in Appendix E. The rules regulating the duties of medical referees under the two Schedules are set out in Appendix G. SECTION XI Sec. 11. 1. IF it is alleged that the owners of any ship are liable as such owners to pay compensation under this Act, and at any time that ship is found in any port or river of England or Ireland, or within three miles of the coast thereof, a judge of any Court of record in England or Ireland may, upon its being shown to him by any person applying in accordance with the rules of the Court that the owners are probably liable as such to pay such compensation, and that none of the owners reside in the United Kingdom, issue an order directed to any officer of customs or other officer named by the judge, requiring him to detain the ship until such time as the owners, agent, master, or consignee thereof have paid such compensation, or have given security, to be approved by the judge, to abide the event of any proceedings that may be instituted to recover such compensation, and to pay such compensation and costs as may be awarded thereon ; and any officer of customs or other officer to whom the order is directed shall detain the ship accordingly. 2. In any legal proceeding to recover such 160 SECTION XI 161 compensation, the person giving security shall be made defendant, and the production of the order of the judge, made in relation to the security, shall be conclusive evidence of the liability of the defendant to the proceeding. 3. Sec. 692 of the Merchant Shipping Act, 1894, shall apply to the detention of a ship under this Act as it applies to the detention of a ship under that Act, and, if the owner of a ship is a corporation, it shall for the purposes of this sec- tion be deemed to reside in the United Kingdom if it has an office in the United Kingdom at which service of writs can be effected. The law laid down in this section is quite new to this branch of law, but should be compared with the remedies given by the Shipowners' Negligence Act, 1905 (5 Edw. VII. c. 10). Sees. 1, 2, and 3 of that Act are almost identical with this section, the same protection being given to plaintiffs seeking damages for personal in- juries as is here given to workmen seeking compensation. Sec. 692 of the Merchant Shipping Act, 1894, autho- rises certain officials to board and detain a ship. A fine of ^6100 is imposed if the ship nevertheless goes to sea without settling the claim or giving security. That section applies equally to British and to foreign ships; but under this present Act there can be no case where a foreign ship is affected. The section, further, does not apply if any of the owners reside in the United Kingdom, or, in the case of a corporation, if the corporation has an office in the United Kingdom at which writs could be served. So that it is submitted that the only case in which it does apply is where all the owners of a British ship registered in the United Kingdom reside abroad (see the note on sec. 7, supra, p. 137). 11 162 THE WORKMEN'S COMPENSATION ACT, 1906 In accordance with the rules of the Court. Rule 37 deals with this. Since this section is practically a repetition of the Shipowners' Negligence Act, Rule 37 provides that applications under this section shall be made in accordance with the rules under that Act. As, however, no such rules have as yet been made, Rule 37 provides how applications under this section are to be made pending their issue. The application may be made to any Court ; the judge may require an undertaking as to damages ; notice is to be given to the other side where practicable; and the judge may accept a solicitor's undertaking to give security instead of making an order for detention. Rule 38 should also be noticed. The Shipowners' Negligence Act enables an employer who has paid compensation under the Workmen's Compensation Act, 1897, and who claims to be indemnified by the owner of a foreign ship, to obtain an order of detention under that Act. This present section, as already pointed out, supra, does not apply to foreign ships and does not contain a similar provision ; but Rule 38 provides for applications for such orders. Are probably liable. It is not quite clear how much has to be proved, but it is submitted that a case sufficiently strong as to require evidence by the ship- owner to displace it must be made out. The person giving security shall be made defendant. Not necessarily, it is submitted, the sole defendant. For the person giving the security is not necessarily the person from whom compensation is sought. For instance, the judge may accept the security of the solicitor (see supra and Rule 37) ; and again, it may well be that the master or the consignee gives the security in order to release the ship, although it is the owner from whom compensation is claimed. The object of this part of the section is to ensure that the money given as security shall be available to satisfy the workman's claim. If such money is in fact appro- SECTION XI 163 priated to the compensation, and the person who gave security can show that not he, but another e.g., the shipowner is the person primarily liable, then presum- ably he could recover such money from the shipowner as money paid to his use. SECTION XII Sec . 12. 1. EVEKY employer in any industry to which the Secretary of State may direct that this section shall apply shall, on or before such day in every year as the Secretary of State may direct, send to the Secretary of State a correct return specifying the number of injuries in respect of which com- pensation has been paid by him under this Act during the previous year, and the amount of such compensation, together with such other particulars as to the compensation as the Secretary of State may direct, and in default of complying with this section shall be liable on conviction under the Summary Jurisdiction Acts to a fine not exceeding five pounds. 2. Any regulations made by the Secretary of State containing such directions as aforesaid shall be laid before both Houses of Parliament as soon as may be after they are made. Eegulations under this section were issued on January 15, 1908, and are set out in Appendix H. 164 SECTION XIII IN this Act, unless the context otherwise requires Sec - 13 - " Employer" includes any body of persons cor- porate or unincorporate and the legal personal representative of a deceased employer, and where the services of a workman are tem- porarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or appren- ticeship, the latter shall, for the purposes of this Act, be deemed to continue to be the employer of the workman whilst he is working for that other person ; The legal personal representative of a deceased em- ployer is included in the definition, as he was in the Workmen's Compensation Act, 1897. This has the effect of excluding the rule " Actio personalis moritur cum persona"; and if the employer dies before the arbitra- tion, the workman does not thereby lose his compensation. There was no such provision in the Employers' Liability Act, 1880, and therefore the common law rule prevailed and the workman lost his action on the death of the employer (Gillett v. Fairbank, 3 T.L.E. 618). If a " dependant" is seeking compensation and dies, the question as to whether his rights descend to his repre- sentatives is not so easy to answer as in the case where 165 166 THE WORKMEN'S COMPENSATION ACT, 190G the employer dies (see this question discussed infra, p. 182.) The Crown is an employer within this Act (see sec. 9), except in the case of the naval and military services. Down to the words " deceased employer" this defini- tion is identical with subsec. 2 of sec. 7 in the Workmen's Compensation Act, 1897. The latter part is designed to meet a case where, but for it, the defence might be raised that the employment was " casual," or not in the course of the employment. It is suggested that this is the reason why the word " temporarily " is used. This word gives rise to some difficulty, for it leads to the view that if the letting or lending be for a considerable regular period, the right to be compensated by the original employer is lost. But this can hardly be so ; for, however long the letting may be for, the contract of service is with the original employer ; he pays the wages r and can dismiss the servant, and it is submitted that he would be the right person from whom to seek compensation. It is therefore submitted that this clause is only in- serted to meet the defence that the accident did not occur in the course of the employment, and that such a defence would fail even if this clause had not been inserted. " Temporarily" is defined in the Century Dictionary " in a temporary manner; for a limited time only; not perpetually or permanently." A person is not an employer within this Act who engages an " independent contractor "to do work for him. As to who is an independent contractor see infra, p. 172. The Act does not impose any joint liability. Therefore, where a workman in the employ of a glass merchant was injured while repairing the roof of a factory, it was held that he could not make a joint claim against the mer- chant and the manufacturer (Herd v. Summers, 1 F. 870). " Workman " does not include any person em- ployed otherwise than by way of manual SECTION XIII 167 labour whose remuneration exceeds J6250 a year, or a person whose employment is of a casual nature, and who is employed otherwise than for the purposes of the employer's trade or business, or a member of a police force, or an outworker, or a member of the employer's family dwelling in his house, but, save as aforesaid, means any person who has entered into or works under a contract of service or apprenticeship with an employer, whether by way of manual labour, clerical work, or other- wise, and whether the contract is expressed or implied, is oral or in writing ; The interpretation which will be put on this clause is obviously of very great importance ; and as the definition is new to this branch of law, it will be necessary to examine it carefully. The definition starts by excluding certain classes of people, as follows : (i) persons employed otherwise than by way of manual labour, whose remuneration exceeds dG250 a year. (ii) persons whose employment is of a casual nature and who are employed otherwise than for the pur- poses of the employer's trade or business. (iii) members of a police force. (iv) outworkers. (v) members of the employer's family dwelling in his house. It should be remembered that soldiers and naval sailors are also excluded by sec. 9. With these exceptions, " workman " means every one who has entered into or works under a contract of service or apprenticeship, whether by way of manual labour, clerical work, or otherwise, and whether the contract is expressed or implied, oral or in writing. 168 THE WORKMEN'S COMPENSATION ACT, 1906 It remains to consider in detail the phrases which make up this definition. (1) Any person . . . ,250 a year. All workmen who earn 250 or a less sum than 250 a year are within the Act, whatever the nature of their work. Of workmen who earn more than 250 a year, those only are within the Act who do so by way of manual'labour. If therefore an accident happens to, e.g., a clerk earning 300 a year, he is not entitled to compensation. " Remuneration " as used here includes other things besides the wages. Thus board and lodging supplied to a workman have to be taken into consideration. In Dothie v. Robert Macandrew ([1908], 1 KB. 803), the deceased " workman " was captain of a ship, and it appeared that his remuneration was 216 a year in cash and his board. It was held by the Court of Appeal that, in considering whether the remuneration exceeded the limit prescribed by the section, the test of the money value of the board provided by the owners was not what the captain saved by the arrangement, or in other words, what he could have boarded himself for, but what the reasonable style of board provided by the owners would have cost him if he had had to purchase it himself. Buckley, L.J.,, points out that this doctrine requires some qualification in this sense, that if a very luxurious allowance were made, not really for the purposes of the workman, but for the benefit of the master, that would be a factor to be taken into consideration. This should be compared with Great Northern Railway v. Dawson ([1905], 1 KB. 331) (see post, p. 203). All forms of manual work do not constitute " manual labour." In "manual labour " the task done must be chiefly labour performed by the hand. It is not sufficient that a certain amount of hand- work takes place if the principal business is something different. The cases on this point are discussed below at p. 175 (q.v.) (2) A person whose employment, . . . trade, or business. There are at present no decisions to guide one in inter- SECTION XIII 169 preting these words. But it should be noticed that they are exclusive only. It is not therefore the same as saying that every one employed for the purposes of the business must be a workman, however casual his employment. It leaves that point open ; and the Court in such a case would have to decide whether there was a contract of service or not (see infra, p. 170). It is submitted therefore that a man would not be within the Act who was employed to go on an errand, even if for the purposes of the employer's business ; for in such a case there would be no contract of service. The result would seem to be this : that if the employ- ment be in the way of the employer's trade or business, the casually employed person may or may not be within the Act, according as the Court decides whether or no he has entered into a contract of service. But if the employ- ment be not in the way of the employer's trade or business, then the person casually employed can never be within the Act. Casual. It is difficult to say what the meaning of this word is until there have been more decisions on it. But it is suggested that an employment is not casual if there is any regularity about it, and if, when the workman finishes the job, there is some understanding, express or implied, that he will be employed again at the same or a similar job. For instance, a man who comes once a week to dig the garden is probably within the Act; and if this be so, it would not seem to make any difference whether he always came on the same day of the week or not. It is suggested, as an extreme case, that if it be an understood thing that he is the man who attends to the garden and that he will continue to present himself at more or less regular intervals for that purpose, then he would be within the Act, provided this understanding rests upon a contract of service express or implied. Thus in Dewhurst v. Mather ([1908], 2 KB. 754) a charwoman was employed on Fridays and alternate Tuesdays for a considerable period. She came regularly on those days without special 170 THE WORKMEN'S COMPENSATION ACT, 1906 instructions. The Court of Appeal refused to disturb a finding of the county court judge that the employment was regular. On the other hand, if a man comes to the door and asks to be employed in the garden, and is then and there set to dig for an hour or so, his employment would clearly be casual. Now, if the same man returns after an interval of time, and the same thing occurs again, the mere fact that he had worked before cannot alter the nature of the employment. Thus in Hill v. Begg ([1908] , 2 K.B. 802) a man who earned his living by doing odd jobs was em- ployed by the occupier of a private house to clean his windows. He had been so employed before at irregular intervals of six weeks for about two years. There was no agreement between the parties of either permanent or periodic employment. It was held that the employment was of a casual nature and not within the Act. In this case Buckley, L.J., points out that a man may be regu- larly employed in an employment of a casual nature, as, e.g., a man who earns his living by waiting at dinner parties. From this argument it would seem that the line must be drawn between the case of a man who is hired to come from time to time to do a job, although an actual date is never fixed, and that of a man who goes away after his job and for all the employer knows may never come back again. The determination of this point appears to be a mixed question of law and fact, in which the arbitrator must direct himself as to whether the particular employment can be casual, and then find as a fact whether it is so. It should be noticed that if the employment is for the purposes of the employer's trade or business the workman is within the Act, although his employment is casual. It is only if the employment is not for the purposes of the trade or business of the employer that he is excluded. This was the ratio decidendi in the recent case of Bargewell v. Daniel (98 L.T. 257). There the de, SECTION XIII 171 fendant owned several houses, and was co-owner of three others, which were let to weekly tenants. She collected the rents and generally managed the property, accounting to the other co-owners for rent received on their behalf, but they paid her nothing for doing so. It was held by the Court of Appeal that she was not carrying on the business of an estate agent within the meaning of the Act, so as to be liable to compensate a workman whose employment was of a casual nature and who met with an accident while doing some repairs to the houses. " Casual " is denned in the Century Dictionary as " occasional ; coming at uncertain times, or without regularity, in distinction from stated or regular; in- cidental." Trade or business. The meaning of these words has been discussed above at p. 115. It should be noticed that for the purposes of this clause the work carried on by a local authority is its trade or business (see p. 184). (3) Member of a police force. ) m , , , , , , 7 J * ^These are both defined (4) Outworker. ) in this section of the Act (see below, p. 184) . (5) Member of . . . house. Member of a family means the wife or husband, father, mother, grandfather, grand- mother, step-father, step-mother, son, daughter, grand- son, grand-daughter, step-son, step-daughter, brother, sister, half-brother, half-sister (seep. 183). " Dwelling in his house " seems a very arbitrary test to apply. If a man employs his son and the son is injured, then he must pay compensation if the son is not dwelling in his house, although the son may be living in lodgings at his father's expense. And on the other hand, the son would not be entitled to compensation if he were dwelling in his father's house, although he paid his father a rent. Any per son who . . . employer. Having dealt with the exceptions, the definition goes on to point out who are workmen, and defines that every one is a workman who has entered into a contract of service, 172 THE WORKMEN'S COMPENSATION ACT, 1906 What is a contract of service? Stephen, J., in his "Digest of the Criminal Law," 5th ed., p. 271, says: 11 A servant is a person bound either by an express con- tract of service, or by conduct implying such a contract, to obey the orders and submit to the control of his master in the transaction of the business which it is his duty as such servant to transact." It is important to distinguish between a servant and an independent contractor ; for it has been decided that an independent contractor was not within the meaning of the similar words in the Workmen's Compensation Act, 1897. This distinction was well put by Bramwell, L.J., in his evidence before the Committee of the House of Lords on Employers' Liability (quoted by Mr. Bevan, in his work on " Negligence," 3rd ed., at p. 571), reported in the Parliamentary Papers, 1876, vol. x. p. 58 : "To my mind the distinction of the cases where a man is, and where he is not, liable for the negligence of another person, may be denned in this way. If there is a contract between them, so that the person doing the work, or doing the act complained of, has a right to say to his em- ployer, ' I will agree to do it, but I shall do it after my own fashion ; I shall begin the wall at this end and not at the other,' there the relation of master and servant does not exist and the employer is not liable. But if the employer has a right to say to the person employed, ' You shall do it in this way, that is to say, not only shall you do it by virtue of your agreement with me, but you shall do it as I direct you to do it,' there the law of master and servant applies and the master is responsible." See also Yewens v. Noakes (6 Q.B.D. 530) ; Willett v. Boote (6 H. & N. 26) ; and Williams v. Jones (3 H. & C. 602). Notice that in the Workmen's Compensation Act, 1897, the corresponding phrase was " whether contract is one of service or apprenticeship or otherwise " ; the word "otherwise" is left out in this present Act; so that SECTION XIII 173 a workman is outside it unless he either falls within the above definition of one who has entered into a contract of service or is an apprentice. On the question of who is an "independent contractor," the following cases must also be noticed : Simmons v. Faulds (17 T.L.R. 352). In that case the applicant was a foreman bricklayer. He had ten- dered to the employer for the job in question, and had started work on the tender being accepted. He was to be paid as the work progressed, and he was not to supply any materials, but only the labour and tools. On these facts the Court of Appeal held that he was an independent contractor, and not within the Workmen's Compensation Act, 1897. In Evans v. Penwyllt Dinas Silica Brick Company (18 T.L.R. 58) the applicant was a quarryman who was employed under a written agreement on the terms that he should be paid so much for every ton of material that he worked. His tools were found for him, and he used to hire and discharge the men who worked under him- Being in doubt as to his position under the Workmen's Compensation Act, 1897, he gave notice to determine the employment, and explained his position to the defendants, who said he should be compensated in case of accident. He then resumed work and was injured. It was held that he was a workman within the Act. Another case which should be noticed on this point is Marrow v. Flimby and Broughton Moor Coal and Fire Brick Company, Ltd. ([1898], 2 Q.B. 588), which was a case under the Employers' Liability Act, 1880. There one E. had entered into a contract with the owners of a colliery to sink a shaft in their mine. By the contract E. (who was therein called the contractor) was to provide such sinkers, etc., as might be necessary for the execution of the work, and was to be paid a certain sum for every fathom sunk. E. employed and paid the sinkers, he himself acting as chargeman in charge of the 174 THE WORKMEN'S COMPENSATION ACT, 1906 sinking operations. One of the sinkers, while engaged upon the work, was killed by a block of wood falling upon him, and his administratrix brought an action against the colliery owners, under the Employers' Liability Act, 1880. It was held that the deceased was not a workman who had entered into or worked under a contract of service. In Hayden v. Dick (5 F. 150) three workmen were employed to dig out a quarry. They were paid by results, and regulated their own hours of work. It was held that they were independent contractors and were not entitled to compensation. In Vamplew v. Parkgate Iron and Steel Company ([1903], 1 K.B. 851) the deceased workman had worked at breaking steel and clearing cinders, and employed five or six men. He himself was paid by tonnage. The county court judge found that he was an independent contractor, and the Court of Appeal refused to disturb his finding. In Paterson v. Lockhart (7 F. 954) the deceased was a quarryman who worked on an estate. He was told where to work, but was free to choose which part of the quarry he would start on. The tools were partly his and partly the employer's. It was held that he was a workman. Partners. In one case an attempt was made, under the Workmen's Compensation Act, 1897, to show that a man who was in fact a partner could be a workman. This was Ellis v. Ellis ([1905], 1 K.B. 324). There a member of a partnership formed for the purpose of working a mine, by arrangement with his co-partners, worked in the mine as a working foreman and received weekly wages out of the profits of the business. It was held that he was not a workman within the Act. Apprenticeship. " Where the employer exercises some trade, and it is made a term of the contract that he shall teach as well as employ and remunerate the servant for some specific period, in return for the service rendered SECTION XIII 175 the contract amounts to an apprenticeship " (Addison on Contracts, 10th ed., p. 868). If there is a contract on the part of the servant to learn, but no engagement, express or implied, on the part of the master to teach, there is no contract of apprentice- ship (R. v. Shinfield, 14 East, 541). Any person who has entered into ... It is not there- fore necessary that the service should have commenced. If, therefore, a workman is injured while on his way to take up a new job, he would be entitled to be com- pensated, provided that the accident happened in the course of his employment (see Whitbread v. Arnold, 99 L.T. 103, and cases on sec. 1, supra, pp. 55-61). Whether by way of manual labour . . . All forms of work do not amount to manual labour. It must be actual toil with the hands. It has therefore been held that a bus conductor is not engaged in manual labour (Morgan v. London General Omnibus Company, 13 Q.B.D. 832), nor is a tramcar driver (Cook v. North Metropolitan Tramway Company, 18 Q.B.D. 683). The two latest cases on this point are Simpson v. Ebbw Vale Steel, Iron, and Coal Co. ([1905], 1 K.B. 453) and Bagnall v. Levinstein ([1907], 1 K.B. 531). In Simpson v. Ebbw Vale Steel, Iron, and Coal Co. the certificated manager of a coal-mine, who was paid a yearly salary and who, although his duties required his presence in the mine, was not required to engage in manual labour, was killed by an accident in the mine. It was held that he was not a workman within the Act. In Bagnall v. Levinstein a man who had taken a degree in science entered the employment of a dye and chemical manufacturing company, under a written agreement for five years' service, and upon terms with regard to salary, commission on profits of inventions or improvements in manufacture discovered by him, restrictions as to employment after the termination of his engagement, and disclosure of matters relating to the business of the company and his own researches applic- 176 THE WORKMEN'S COMPENSATION ACT, 1906 able to employment as a skilled expert in the business of his employers. His employment involved manual labour on his part. It was held by the Court of Appeal (Collins, M.R., and Cozens-Hardy, L.J. ; Farwell, L. J., dissenting) that the governing factor in determining whether the man was a workman was the question what he was employed to do, and that the judge had misdirected himself by not taking into consideration the terms of employment as disclosed in the agreement, and in treating the perform- ance of manual labour in the discharge of his duties as conclusive that the man was a workman within the Workmen's Compensation Act, 1897. From the cases quoted above it becomes clear that there are very many workmen (in the popular sense) whose em- ployment is neither manual labour nor clerical work. For instance, a bus conductor is neither the one nor the other, and under the Workmen's Compensation Act, 1897, would not have been entitled to compensation. But this Act adds after " manual labour" and "clerical work" the words "or otherwise," which did not occur in the Act of 1897, and we have to consider what is the effect of these words. It is submitted that they are intended to cover every possible kind of work which is done under a contract of service. No doubt it is often the case that words such as "otherwise" or "in any other manner" occurring in a statute refer only to matters cognate to the words which have preceded them. But here it may be said, firstly, that such employments as that of conductors, guards, etc., are cognate to manual labour, or, secondly, that where such widely dissociated ideas as "manual labour" and "clerical work" are put in the same phrase, "otherwise" must include almost everything between them. Any reference to a workman who has been in- jured shall, where the workman is dead, include a reference to his legal personal representative or to his dependants or other SECTION XIII 177 person to whom or for whose benefit com- pensation is payable ; " Dependants " means such of the members of the workman's family as were wholly or in part dependent upon the earnings of the workman at the time of his death, or would but for the incapacity due to the accident have been so dependent, and where the work- man, being the parent or grandparent of an illegitimate child, leaves such a child so dependent upon his earnings, or } being an illegitimate child, leaves a parent or grand- parent so dependent upon his earnings, shall include such an illegitimate child and parent or grandparent respectively ; The corresponding^ clause in the Workmen's Compen- sation Act, 1897, was very differently phrased, and this is an improvement on it. " Dependants " was there defined as meaning (in England and Ireland) such members of the workman's family specified in the Fatal Accidents Act, 1846, as were wholly or in part dependent upon the earnings of the workman at the time of his death. The difficulty was this that it was not clear from this defini- tion whether " family " was used in the sense of relationship or whether it meant people living under the workman's roof. See the discussion on this point in the late Mr. Minton-Senhouse's book, " Accidents to Workmen," 2nd ed., at p. 196. In the present Act "member of the family " is defined in the next clause ; and it is clear that it does not make any difference where the people mentioned in that definition dwell, so long as they rely on the workman for their support. The inclusion of illegitimate children is new and has been criticised on the grounds of public policy with 12 178 THE WORKMEN'S COMPENSATION ACT, 1906 which this book is not concerned. It should be noticed that the provision with regard to illegitimate children does not apply to collateral relatives. Wholly or in part dependent. The interpretation of this phrase, which also occurs in the Workmen's Com- pensation Act, 1897, has given rise to considerable difficulty. The result of the cases appears to be this : that, in spite of numerous attempts, which were at first successful, to set up a standard of living as a rule of law to test whether or not people are " dependent," it has now become settled that it is in each case purely a question of fact for the decision of the arbitrator whether or no the applicant relied wholly or partly on the de- ceased's earnings for his or her support. The standard of living in the neighbourhood or class to which the family belong is not to be taken into account, but merely the manner in which this particular family actually lived. Notice also that it must be the deceased's earnings which supported them. It is not enough if they lived on his income or capital. In the case of the applicant being the widow of the workman, there is added to this a legal presumption that she was dependent upon him at the time of his death. Simmons v. White ([1899], 1 Q.B. 1005) is the first case on the subject. There the deceased workman was a boy of fourteen and the applicants were his parents. The boy had been in the habit of giving his wages to his parents, who gave him back a certain amount for pocket money. On these facts it was held that the parents were in part dependent on the boy's earnings. Collins, L.J., in this case said : " It would be hopeless to attempt to lay down any rule of guidance, because every case would probably differ in some material circumstance from almost every other. Thus the financial and social position of the recipient of compensation would have to be taken into account. That which would make one person dependent upon another would in another case merely cause the one to receive benefit from the other. Each case must stand on SECTION XIII 179 its own merits and be decided as a question of fact by the arbitrator." It should be noticed that the test suggested in this passage the financial and social position of the recipient has not been followed in the later cases. Thus in Main Colliery v. Davies ([1900], A.C. 358), where the facts were practically the same, part of the headnote is : " Whether there is a dependency is entirely a question of fact in each case, irrespective of the standard of living in the neighbourhood or the class to which the family belong." This is founded on a passage in Lord Halsbury's speech, where he says : " I am unable to see that there is anything in this case beyond a mere question of fact. I decline to assume that the Legislature has contemplated a particular standard ... a standard dependent upon what was the ordinary course of expenditure in the neighbourhood and in the class in which the man lived. To my mind that is a problem so extremely obscure that I cannot believe that the Legislature intended it to be solved." It is now therefore correct to say that there is no such standard as is suggested in Simmons v. White ; all we have to see in each case is whether the applicant relies for all or part of his support (or the support of his family) on the money which the deceased was earning. In the next year Hoivells v. Vivian & Sons (85 L.T. 529) came before the Court of Appeal. This was also a case of a father seeking compensation for the death of his son. The father was earning full wages and was quite able to support his family without the son's money, for which reason the county court judge declined to make an award ; but the Court of Appeal, following Main Colliery v. Davies, reversed this decision, on the ground that the county court judge had improperly laid down a rule of law which prevented him from considering whether the wages of the deceased were part of the income or means of living of the family, because the whole family could be main- tained without those wages. In Bees v. Penrikyber Navigation Colliery Company ([1903], 1 K.B. 259) the applicant was a pauper inmate of 180 THE WORKMEN'S COMPENSATION ACT, 1906 a workhouse, towards whose maintenance no contribution was, in fact, made by his son, the deceased workman, at the time of his death, although some years previously he had contributed to his support in the workhouse, and at other times had given him money. On these facts it was held that there was no dependency. Notice also Barrett v. North British Eailway (1 F. 1139) , where the mother of a deceased workman, whose parents were partly dependent on him, was held not to be en- titled to sue for compensation while the father was alive. In Leggett v. Burke (4 F. 693) the applicant was the father of the deceased workman, and it was contended that he was only dependent because he voluntarily sup- ported a crippled brother. The sheriff awarded compensa- tion, and the Court of Session refused to disturb his award. In Moyes v. Dixon (7 F. 386) a grown-up daughter kept house for her father, being supported by him, but receiving no payment. Held, that she was a dependant. Arrol v. Kelly (7 F. 906) was a claim by a father. He did not live with his son. Both father and son earned about 30s. a week, but it was proved that the son was in the habit of giving his father about 10s. a week. It was held that the father was not in part dependent on the son. In Senior v. Fountains and Burnley ([1907], 2 KB. 563) a workman at the date of his death was receiving the wages of three of his sons. He supported the sons out of this money and made a profit in so doing. It was held that the widow and younger children were none the less " wholly dependent " on the deceased. In Cooper v. Fife Coal Company ([1907], S.C. 564) a workman had supported his granddaughter, the child of his deceased daughter. The child's father and his family had not been heard of for some years. It was held that she was wholly dependent on the grandfather. The next class of case to be considered is that dealing with the presumption that a wife is dependent on her SECTION XIII 181 husband for her support. The first English case on this point is Coulthard v. The Consett Iron Company ([1905], 2 KB. 869). The applicant was the widow, and the deceased workman had left her some months previously to the accident causing his death, and from that time until his death he had contributed nothing towards her support, and she had subsisted mainly on charity. On these facts the Court of Appeal upheld the finding of the county court judge that she was dependent on the work- man at the time of his death. Collins, M.E., suggested, by comparison with the Scotch cases of Turner v. Whitefield (6 F. 822); Cunningham v. M'Gregor (3 F. 775) ; and Sneddon v. Bobert Addie & Sons (6 F. 992), that the result might have been different if the woman had some other source to look to for support when her husband failed her; it was entirely a question of fact, and in Turner v. Whitefield, in which the facts were as he suggested (see infra), it had been found as a fact that the woman did not depend on the earnings of the deceased. The latest case on this point is Williams v. The Ocean Coal Company, Ltd. ([1907], 2 KB. 422). There the applicant was the widow, and at the time of the work- man's death she was living with her parents and the husband was not, in fact, contributing anything to her support. The county court judge held on these facts that there was no dependency, but the Court of Appeal reversed his decision on the ground that he had ignored the legal presumption that the wife is dependent on the husband (see Sneddon v. Robert Addie & Sons 6 F. 992), which presumption stands until rebutted by evidence that in fact she is not so dependent. This case also decided, following the rule laid down in Villar v . Gilbey ([1907], A.C. 139), that a posthumous child is a dependant. Compare this case with Turner v. Whitefield (6 F. 822), where a woman had lived apart from her husband for fourteen years and was supported by her illegitimate son. It was held that she was not dependent on her husband. 182 THE WORKMEN'S COMPENSATION ACT, 1906 In Baird v. Birsztan (8 F. 438) a Pole had come to Scotland to seek employment, leaving his wife in Poland. He obtained employment as a miner, and shortly after- wards was killed. He had sent his wife one small sum of 1. She also earned a trifle and received gifts from her father. It was held that she was partly dependent upon him. See also the Irish case of Queen v. Clarke ([1906], 2 I.E. 135). Actio personalis moritur cum persona. There has been some difference of opinion as to whether this rule applies if the sole dependant dies after commencing proceedings. In O'Donovan v. Cameron ([1901], 2 I.E. 633), where the sole dependant died before making her claim and the proceedings were continued by the personal representative of the deceased workman, it was held that the common law rule applied and that the right to be compensated was gone. However, in the recent case of Darlington v. Boscoe d Sons ([1907], 1 K.B. 219) the Court of Appeal held that the rule did not apply, inasmuch as the pro- ceedings were not founded in a tort. The facts of this case are not quite the same as those in O'Donovan v. Cameron, for here the dependant had made a claim before his death ; and Collins, M.E., founded his judgment on the fact that as soon as a claim has been made there is a right to be paid a certain sum as compensation, which has only to be fixed by the arbitration. There is no action on foot which can die. Or would but for the incapacity) etc. The insertion of this phrase, which does not occur in the Workmen's Compensation Act, 1897, is an improvement. For in the case of death following a long illness brought on by an accident it would seldom happen that the appli- cants could be dependent on the deceased at the time of his death, for his earnings would cease at the time of the accident. Illegitimate children. An unsuccessful attempt was made in Clement v. Bell d Sons (1 F. 924) to show SECTION XIII 183 that an illegitimate child was a "dependant" within the Workmen's Compensation Act, 1897. Compare this with Dickinson v. North-Eastern Railway Company (2 H. & C. 735), which was an action brought under Lord Campbell's Act in which the plaintiff was the illegitimate child of the deceased. And see Scho field v. The Orrell Colliery (25 T.L.R. 106). Total and partial dependants. It had been held in Fagan v. Murdoch (1 F. 1179), a decision under the old Act, that where a person totally dependent exists, partial dependants were not entitled to any compensation, but the effect of that decision is got rid of by Sched. I. para. 8. As to the method of assessing the compensation to be paid to a partial dependant, see Osmond v. Campbell and Harrison ([1905], 2 KB. 852), infra, p. 194. " Member of a family" means wife or husband, father, mother, grandfather, grandmother, step-father, step-mother, son, daughter, grand- son, granddaughter, step-son, step-daughter, brother, sister, half-brother, half-sister; Under the Workmen's Compensation Act, 1897, only people entitled to sue under Lord Campbell's Act could be dependants i.e., husband, wife, parents, child, grand- parents, grandchildren, step-parents, step-children. This Act extends the class by including brothers, sisters, half- brothers, and half-sisters. " Ship," " vessel," " seaman," and " port " have the same meanings as in the Merchant Ship- ping Act, 1894; See note on sec. 7, ante, p. 133. " Manager," in relation to a ship, means the 184 THE WORKMEN'S COMPENSATION ACT, 1906 ship's husband or other person to whom the management of the ship is entrusted by or on behalf of the owner; " Police force" means a police force to which the Police Act, 1890, or the Police (Scotland) Act, 1890, applies, the City of London Police Force, the Eoyal Irish Constabulary, and the Dublin Metropolitan Police Force; " Out worker " means a person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished, or repaired, or adapted for sale, in his own home or on other premises not under the control or management of the person who gave out the materials or articles ; This is a very complicated definition, and is very much narrower than the popular idea of an out worker, which would include every one who did work in his own home in pursuance of a contract of service. The exercise and performance of the powers and duties of a local or other public authority shall, for the purposes of this Act, be treated as the trade or business of the authority ; The effect of this is that people employed casually by the local authority would not be within the exception in the definition of " workman," supra, p. 166, and might therefore recover compensation if injured. So a man casually employed by a borough council to sweep snow would be within the Act. "County court," "judge of the county court," SECTION XIII 185 "registrar of the county court," " plaintiff," and " rules of court," as respects Scotland, mean respectively sheriff court, sheriff, sheriff clerk, pursuer and act of sederunt. OF UNIVERSITY OF SECTION XIV Sec. 14. IN Scotland, where a workman raises an action against his employer independently of this Act in respect of any injury caused by accident arising out of and in the course of the employment, the action, if raised in the Sheriff Court and conclud- ing for damages under the Employers' Liability Act, 1880, or alternatively at common law or under the Employers' Liability Act, 1880, shall, notwith- standing anything contained in that Act, not be removed under that Act or otherwise to the Court of Session, nor shall it be appealed to that Court otherwise than by appeal on a question of law; and for the purposes of such appeal the provisions of the Second Schedule to this Act in regard to an appeal from the decision of the Sheriff on any question of law determined by him as arbitrator under this Act shall apply. This section refers to sec. 6, subsec. 3, of the Employers' Liability Act, 1880, sub-subsec. 3: "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, sec. 9 of the Sheriff Courts (Scotland) Act, 1877." This latter Act provides a procedure for appealing from the Sheriff Court. See note on Sched. II. sec. 4, p. 238 infra. 186 SECTION XV 1. ANY contract (other than a contract substi- Sec. 15, siibscc 1 tuting the provisions of a scheme certified under the Workmen's Compensation Act, 1897, for the provisions of that Act) existing at the commence- ment 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 employment, shall not, for the purposes of this Act, be deemed to continue after the time at which the workman's contract of service would determine if notice of the determination thereof were given at the commencement of this Act. The effect of this section is that the commencement of this Act operates as a notice to determine the contract ; and the length of notice required is to be the same as would be required to determine the particular contract of service. Therefore, for example, in the case of a domestic servant, who can be dismissed by a month's notice, such a contract would automatically terminate one month after the Act came into force. It should be noticed that this section only refers to contracts whereby the workman relinquishes his right to be compensated, and therefore contracts excluding the Employers' Liability Act, 1880, or the common law are not affected by it. 187 188 THE WORKMEN'S COMPENSATION ACT, 1906 Subsec. 2. Subsec. 3. Subsec. 4. This section is almost identical with the corresponding one in the Workmen's Compensation Act, 1897, and has the effect of absolutely preventing contracting out except in accordance with sec. 3 (supra, p. 104) ; but during the notice period any such existing contracts would remain alive. Such contracts were not likely to be in existence at the time of the commencement of this Act in any trade to which the Workmen's Compensation Act, 1897, applied ; but in other trades contracts may have existed, intended to exclude the Employers' Liability Act, 1880, and the common law, but sufficiently wide to cover this Act, and in such cases this section would apply. 2. Every scheme under the Workmen's Com- pensation Act, 1897, in force at the commencement of this Act shall, if re-certified by the Registrar of Friendly Societies, have effect as if it were a scheme under this Act. 3. The Registrar shall re-certify any such scheme if it is proved to his satisfaction that the scheme conforms, or has been so modified as to conform, with the provisions of this Act as to schemes. 4. If any such scheme has not been so re-cer- tified before the expiration of six months from the commencement of this Act, the certificate thereof shall be revoked. As to the requirements of the Registrar before certify- ing a scheme under this Act, see notes on sec. 3, supra, p. 104. An old scheme would have to be altered in the follow- ing particulars : (i) The benefits under it must be actually as great to each man as those he would be entitled to under this Act. Under the Workmen's Compensation Act, SECTION XV 189 1897, they had only to be as great " on the whole " (see p. 106). (ii) Serious or wilful misconduct must not be a bar to the recovery of compensation, if it results in death or serious injury, (iii) The provisions as to giving notice must not be so stringent as under the Workmen's Compensation Act, 1897. (iv) The duration of the disability need not be so long, (v) " Young persons " must be dealt with on a different footing, (vi) The class of " dependants " must include various relatives who were not included in the earlier Act. Schemes under the old Act were permitted by subsec. 4 to continue in force for six months after the commence- ment of the Act, but were only binding on workmen who had joined them during the currency of the old Act. In Wallace v. Hawthorne ([1908], S.C. 713) a workman had entered upon his service in August, 1907, and had then joined a scheme which had been certified under the old Act. Before the scheme was re-certified under this Act the workman was injured. It was held that he was not bound by the scheme and could recover compensation. SECTIONS XVI AND XVII Sec. 16. 16. 1. THIS Act shall come into operation on the first day of July, 1907, but, except so far as it relates to references to medical referees and proceedings consequential thereon, shall not apply in any case where the accident happened before the commencement of this Act. 2. The Workmen's Compensation Acts, 1897 and 1900, are hereby repealed, but shall continue to apply in cases where the accident happened before the commencement of this Act, except to the extent to which this Act applies to those cases. Sec. 17. 17. This Act may be cited as the Workmen's Compensation Act, 1906. 190 SCHEDULE I (1) THE amount of compensation under this Act Sohed - L shall be This paragraph, with the exception of the two provisos, is very nearly the same as the corresponding one in the Workmen's Compensation Act, 1897. It should be borne in mind that the paragraph only deals with the amount of compensation, and has nothing to do with the right to be compensated. The question is dealt with by dividing it into two branches, (a) where death ensues, and (b) where it does not. (a) Where death results from the injury This division is again subdivided into three subsections (i) where the deceased leaves total dependants ; (ii) where the deceased leaves partial dependants; (iii) where the deceased leaves no dependants. These three subdivisions will now be dealt with in order. (i) If the workman leaves any dependants wholly dependent upon his earnings, a sum equal to his earnings in the employment of the same employer during the three years next preced- ing the injury, or the sum of one hundred and fifty pounds, whichever of those sums is 191 192 THE WORKMEN'S COMPENSATION ACT, 1906 the larger, but not exceeding in any case three hundred pounds, provided that the amount of any weekly payments made under this Act, and any lump sum paid in redemp- tion thereof, shall be deducted from such sum, and, if the period of the workman's employ- ment by the said employer has been less than the said three years, then the amount of his earnings during the said three years shall be deemed to be one hundred and fifty-six times his average weekly earnings during the period of his actual employment under the said employer ; Therefore if the workman leaves any total dependants, the amount they are entitled to is fixed as follows : (i) If he has been in the employment for three years or more, then a sum equal to three years' earnings or 150, whichever is greater ; but in no case more than 300. (ii) If he has been in the employment less than three years, then a sum equal to 156 times his average weekly earnings or 150, whichever is greater; but in no case more than 300. Where death results from the injury. It sometimes happens that prior to his death the workman has been in receipt of weekly payments. It has been held in O'Keefe v. Lovatt (18 T.L.R. 57) that this circumstance does not extinguish the rights of the dependants. Employment of the same employer. See note on next section, p. 208. Wholly dependent. It had been held in Scotland in Pagan v. Murdoch (1 F. 1179) that under the old Act if there is a total dependant in existence, the partial dependants have no right to be compensated, even if the total dependant, in fact, makes no claim. But this Act SCHEDULE I 193 expressly alters this (see Sched. I. para. 8, infra, p. 215). It should be noticed that the question of whether or not a person is dependent on the deceased's earnings is not affected by the fact that he has inherited money from the deceased or in any other way has benefited by the death. This is the result of the decision in Pryce v. Penrikyber Navigation Colliery Company ([1902] , 1 K.B. 221). There the workman had saved a sum of money, to which the widow became entitled on his death. It was held that this did not prevent her being " wholly de- pendent " on his earnings. If a dependant dies after making a claim, his right passes to his legal personal representative (Darlington v. Eoscoe [1907], 1 K.B. 219, supra, p. 182). Notice also that the dependants are entitled to compen- sation on the death scale if death in fact results from the injury, although at the time of the injury such a result could not have been anticipated (Dunham v. Clare [1902] , 2 K.B. 292). And thus where a workman went mad as a result of the accident and committed suicide, it was held that the case was within the Act (Malone v. Cayzer, Irvine & Co. ([1908], S.C. 479). In Leonard v. Baird (3 F. 890) the workman was killed before he had earned anything. The minimum amount of 150 was awarded. See also Doyle v. Beattie (2 F. 1166) ; Forrester v. M'Callum (3 F. 650) ; and Russell v. M'Cluskey (2 F. 1312). Earnings. See note on sec. 2, p. 198. Provided that . . . from such sum. The words "and any lump sum paid in redemption " were not in the Work- men's Compensation Act, 1897. But it is submitted that the effect would be the same if they had been left out ; for such a lump sum is, in fact, a series of weekly pay- ments commuted into a single sum of money. See also O'Keefe v. Lovatt (18 T.L.E. 57, supra). Average weekly earnings. The manner of arriving at this sum is deal with in the next paragraph, q.v., p. 198. 13 194 THE WORKMEN'S COMPENSATION ACT, 1906 (ii) If the workman does not leave any such dependants, but leaves any dependants in part dependent upon his earnings, such sum, not exceeding in any case the amount payable under the foregoing provisions, as may be agreed upon, or, in default of agreement, may be determined, on arbitration under this Act, to be reasonable and proportionate to the injury to the said dependants ; If a workman leaves persons partly dependent on him, they are entitled to compensation, the maximum amount of which is the same as is provided for in the case of total dependants. There is no minimum fixed, and in default of agreement the arbitrator has to give a sum propor- tionate to the loss sustained i.e., proportionate to that part of the deceased's earnings which were devoted to the support of the particular dependant. The word "proportionate" would therefore seem to be used here in two senses ; i.e. (i) the sum awarded must bear some proportion to the dependant's monetary loss, and (ii) as between all the partial dependants, the sum awarded to each must be proportionate to the amount of loss he has sustained as compared with the others. As to what considerations should weigh with the arbitrator in awarding compensation to partial depen- dants, see Osmond v. Campbell and Harrison ( [1905] , 2 KB. 852). There the widow of a deceased workman earned a small sum, and the county court judge therefore decided that she was only partially dependent, and de- ducted 5 from the compensation. It was contended in the Court of Appeal that in the case of a partial depen- dant only such sum as was proportionate to the loss could be awarded, and that therefore the judge should have taken into consideration the cost of maintaining the workman. But it was held that the only difference between the cases of a total and a partial dependant was SCHEDULE I 195 that the other sources of income had to be taken into consideration, and, therefore, that the county court judge was right. In part dependent. Whether or not the dependency is total or partial is a question of fact to be determined by the arbitrator in each case (see Baird v. Birsztan, 8 F. 438). It was held in Scotland under the old Act that if there are any total dependants in existence, the partial dependants cannot get anything (see Fagan v. Murdoch, 1 F. 1179, supra). But this Act expressly alters this (see Sched. II. para. 8, p. 215). Reasonable. In Bevan v. Crawshay ([1902] , 1 K.B. 25) it has been held that in assessing the compensation pay- able to partial dependants, the expenses of the deceased's funeral may be taken into consideration. This was followed in Scotland in Hughes v. Summerlee and Mossend Iron and Steel Company (5 F. 784). And- (iii) If he leaves no dependants, the reasonable expenses of his medical attendance and burial, not exceeding ten pounds; The proper person to claim this sum is the executor or administrator ; but in certain cases a creditor may make the claim. See p. 214. (ft) Where total or partial incapacity for work results from the injury, a weekly payment during the incapacity not exceeding 50 per cent, of his average weekly earnings during the previous twelve months, if he has been so long employed, but if not then for any less period during which he has been in the employment of the same employer, such weekly payment not to exceed one pound; 196 THE WORKMEN'S COMPENSATION ACT, 1906 Where the workman is not killed but only incapacitated by the accident, he is entitled to a weekly sum to be paid to him during the time he is incapacitated. The maximum amount he can so receive is 50 per cent, of his average weekly earnings or 1 per week, whichever sum is the less. If he has been in the employment for twelve months, he may get 50 per cent, of his average weekly earnings during the twelve months preceding the injury. If he has been in the employment for less than twelve months, then 50 per cent, of his average weekly earnings during the whole time he has been employed. As to what are " average weekly earnings," see the note on sec. 2, infra, p. 198. In the case of partial incapacity the arbitrator may give the full difference between the earnings before and after the accident, provided that such amount does not exceed 50 per cent, of the previous earnings or 1 per week. So that if previous to the injury the earnings are 30/-, and afterwards are ! a week, 10/- a week may be awarded as compensation, not merely 5/-. See Geary v. Dixon (4 F. 1143) ; Parker v. Dixon (4 F. 1147) ; Corbet v. Glasgow Iron and Steel Company (5 F. 782). It was held in Jamieson v. Fife Coal Company (5 F. 958) that the arbitrator may not make the workman's age and a general fall in wages reasons for giving less than half the weekly earnings. In Bryson v. Dunn and Stephen (8 F. 226) the workman had earned 36/8 per week. He was totally incapacitated and was awarded 18/4 per week. Later, he partially recovered and was taken back by his employer at 17/- a week. On an application to review his award, the Sheriff refused to make any alteration, and his decision was upheld by the Court of Session. This part (&) of this paragraph only differs from the corresponding paragraph of the Workmen's Compensation Act, 1897, in that the words " after the second week " are omitted. Under this Act the weekly payments must be made from the date of the injury, except in the case provided for in the next proviso. SCHEDULE I 197 Incapacity. The incapacity must result from the injury, and whether it does so or not is a question of fact. Thus where a man had dislocated his shoulder and had been told by a surgeon to follow a certain course of treatment and failed to do so, whereby his injury was prolonged, the Court of Appeal refused to disturb a find- ing of the county court judge that the incapacity was due to the injury (Smith v. Cord Taton Company, the Times, Feb. 6, 1900). Further, an injured man is not obliged to undergo a surgical operation which is attended with danger in order to be rid of the incapacity (Eothwell v. Davies, 19 T.L.E. 423 ; and Sweeney v. Pumpherston Oil Com- pany, 5 F. 972). Sed aliter where the operation was a simple one and such as a reasonable man would, for his own comfort, elect to undergo (Anderson v. Baird, 5 F. 373). Provided that (a) If the incapacity lasts less than two weeks no compensation shall be payable in respect of the first week; This proviso is new and is rendered necessary by the change in the substantive part of the Act. Under the Workmen's Compensation Act, 1897, unless the workman was disabled for two weeks he had no claim. Under this Act he has a claim if the disablement lasts for a week. This proviso says that if the disablement lasts less than two weeks there shall be no payment in respect of the first week. This works out thus : If the disability lasts only a few days, less than a week, the case is not within the Act, and no compensation is payable. If it lasts, say, ten days, compensation is only payable for three days, for the first week does not count. If it lasts fourteen days or more, compensation is payable for the whole period. 108 THE WORKMEN'S COMPENSATION ACT, 1906 And (b) As respects the weekly payments during total incapacity of a workman who is under twenty-one years of age at the date of the injury, and whose average weekly earnings are less than twenty shillings, 100 per cent, shall be substituted for 50 per cent, of his average weekly earnings, but the weekly pay- ment shall in no case exceed ten shillings. This proviso meets the case of a boy who, if his injury lasted a long time, would not be properly compensated by receiving half his weekly earnings. For instance, if he were injured at the age of 16, when earning 10/- a week, but for this proviso he would only get 5/- a week, although, as the years went on, his wage-earning capacity would probably have increased. This proviso is a rough and ready method of meeting this difficulty. The effect of it is that if the boy be earning less than 20/- a week, he shall receive his full wages as compensation, subject to a maximum sum of 10/- a week. Compare this proviso with para. 16 of this schedule. Sched. i. (2). (2) For the purposes of the provisions of this schedule relating to " earnings" and " average weekly earnings " of a workman, the following rules shall be observed : (a) Average weekly earnings shall be computed in such manner as is best calculated to give the rate per week at which the workman was being remunerated. Provided that where by reason of the shortness of the time during which the workman has been in the employ- ment of his employer, or the casual nature of the employment, or the terms of the em- SCHEDULE I 199 ployment, it is impracticable at the date of the accident to compute the rate of remu- neration, regard may be had to the average weekly amount which, during the twelve months previous to the accident, was being earned by a person in the same grade em- ployed at the same work by the same employer, or, if there is no person so em- ployed, by a person in the same grade employed in the same class of employment and in the same district ; (&) Where the workman had entered into con- current contracts of service with two or more employers under which he worked at one time for one such employer and at another time for another such employer, his average weekly earnings shall be computed as if his earnings under all such contracts were earn- ings in the employment of the employer for whom he was working at the time of the accident ; (c) Employment by the same employer shall be taken to mean employment by the same employer in the grade in which the workman was employed at the time of the accident, uninterrupted by absence from work due to illness or any other unavoidable cause; Where the employer has been accustomed to pay to the workman a sum to cover any special expenses entailed on him by the nature of his employment, the sum so paid shall not be reckoned as part of the earnings. 200 THE WORKMEN'S COMPENSATION ACT, 1906 The whole of this paragraph is new and is inserted to end the confusion which had been brought about by the various decisions under the Workmen's Compensation Act, 1897, as to the meaning of "earnings" and "average weekly earnings." Each of the four subsections, a, b, c, and d, deal with different points which have arisen, and it is necessary to consider the earlier decisions before this paragraph can be properly understood. (1) The first point arose in cases where the accident occurred in the first week of the workman's employment. Where the workman had been working for less than a week it was felt to be a straining of language to say that he had any " average weekly earnings " at all. This point was first argued in Lysons v. Knowles ([1901], A.C. 79), where it was contended, successfully in the Court of Appeal, that a workman who had worked for a few days only could not have an average weekly wage at all, and was therefore not entitled to any compensation. The House of Lords did not expressly deal with this point, but they made an award of compensation at the rate of 50 per cent, of what the workman had actually earned while working. The later decisions, however, suggest that what is to be looked to is not the amount actually earned in the few days, but that amount plus what the workman would have earned in the rest of the week but for the accident (see Ay res v. Buckeridge, Wheale v. Rhymney Iron Company, and Jones v. Rhymney Iron Company, reported together at [1902] 1 KB. 57). But these cases were not followed in Scotland (see Grewar v. Caledonian Railway, 4 F. 895, and M'Cue v. Barclay, 4 F. 909). In Bartlett v. Tutton d- Sons ([1902], 1 KB. 72) the workman had only been employed a few hours when injured. His pay was 6d. an hour, and he could be dismissed at any moment. It was held by the Court of Appeal that half what he earned or would have earned was the standard. And as there was no amount which he would have earned, only a trifling sum was awarded. SCHEDULE I 201 It was there expressly laid down that the test was not what other people in the same or similar employment could earn, and that the arbitrator was not entitled to take any such matter into consideration. The only question was what the workman himself would earn, and in the absence of evidence the arbitrator must decide that as best he could. In accordance with this principle was the decision in Giles v. Belford Smith < Co. ([1903], 1 KB. 843). There a dock labourer was employed from time to time, and was, in fact, continuously employed for three weeks before the accident at exceptionally high wages for overtime. It was held that these three weeks were the basis ; and that it was nothing to the point that the sum earned was far above the average of workmen in the applicant's grade of employment. In Nelson v. Kerr and Mitchell (3 F. 893) the workman had worked for one week, earning 16/2, and had worked for only a few hours in the second week, earning nothing at all, when he was injured. It was held that his average weekly earnings were 16/2 (see also Cadzow Coal Company v. Gaffney, 3 F. 72; Peacock v. Niddrie and Benhar Coal Company, 4 F. 443, James v. Ocean Coal Company [1904], 2 KB. 213). Where the custom of a trade is to reckon the work as starting from some particular day, such trade weeks were recognised (Fleming v. Lochgelly Iron and Coal Company, 4 F. 890, and Campbell v. Fife Coal Company 5 F. 170). In Case v. Colonial Wharves (53 W.E. % 514) it was held that there was no presumption that a casual labourer employed by the hour would continue in the employment for more than an hour. Therefore if he were injured after working only part of a week, his earnings up to the time of the accident were his average weekly earnings. On the other hand, in Brown v. Cunningham (6 F. 997), where a workman had worked for one week at a fixed wage and was then discharged, it was held that the fixed weekly wage was his average weekly earnings. 202 THE WORKMEN'S COMPENSATION ACT, 1906 (2) The second point arose in cases where the workman was working for a number of different employers at the same time under concurrent contracts. It was decided in Hathaway v. Argus Company ([1901], 1 Q.B. 96) that in such a case the arbitrator could only look to the workman's earnings in the employment in which he was injured. (3) The third point is this in order to constitute average weekly wages the money must all be earned under one contract, and, therefore, if there is a break in the employment it is important to decide whether the contract was ended or not ; for the time to be looked to is the period of continuous employment immediately pre- ceding the accident. There are a number of cases in which the Court has had to decide whether there was or was not a break in the continuity of the employment. The first of these is Keast v. Barrow Hamatite Steel Company (15 T.L.K. 141). There it was held that a holiday intervening did not break the continuity. In that case the effect of the holiday was to include in the total time a period in which nothing was earned, and the average was to that extent reduced. If a man went out on strike he broke the continuity of his employment (Jones v. Ocean Coal Company [1899], 2 Q.B. 124). Similarly there was a break if there was a prolonged absence (in that case eleven months) through illness (Appleby v. Horseley [1899], 2 Q.B. 521). In Hewlett v. Hepburn (16 T.L.K. 56) the duration of the absence was eleven weeks and the arbitrator found there was a break, and the Court of Appeal upheld his finding. In Williams v. Poulson (16 T.L.K. 42) a casual labourer had worked for the employer a few days each week and on the other days had worked for other employers. It was held that there was no break in the employment. And in Hunter v. Baird (1 F. 304) a miner was dismissed on October 7th. He had worked under a contractor. On October 9th he got employment from the coalmaster in the same mine. On October 12th he was injured. It was held that in estimating his SCHEDULE I 203 average weekly earnings the earnings under the con- tractor could not be taken into account. See also Gibbs v. Dunlop (4 F. 971). (4) The fourth point was this how were you to find out what the average weekly earnings were if the work- man had been employed at several different grades during the twelve months preceding the accident ? In Price v. Marsden ([1899], 1 Q.B. 493) it was held that the proper method was to divide the total amount of earnings by the number of weeks, and that it made no difference that the wages and the nature of the work had been altered during the period. (5) The fifth point was this what manner of gains is included under the word " earnings " ? The first case on this was Pomphrey v. Southward Press ([1901], 1 K.B. 86), where the Court of Appeal held that the value of the tuition given under an apprenticeship deed could not be taken into consideration in fixing the earnings. Stirling, L.J., suggested that such things as board, lodgings, and clothes probably would be earnings. In Houghton v. Sutton Heath and Lea Green Collieries Company, Ltd. ([1901], 1 Q.B. 93), by the rules of a colliery sixpence a week was deducted from wages for lamp oil supplied by the employers. It was held that the county court judge was right in taking as the basis of his award the full weekly wages of the workman without regard to the weekly deduction ; and the decision of the House of Lords in Abram v. Southern ([1903], A.C. 306) was to the same effect. In Great Northern Eailway Company v. Dawson ([1905], 1 K.B. 331) the question put by Stirling, L. J., in Pomphrey v. Southward Press (supra) came up for deci- sion. A guard in the railway company's service had the use of his uniform, the property in which remained with the employers. It was held that the value of this uniform was rightly taken into consideration in determining his wages. And Dothie v. Macandrew ([1908], 1 K.B. 803), a recent case under the present Act, is in accordance with 204 THE WORKMEN'S COMPENSATION ACT, 1906 this. In that case the Court had to decide whether the remuneration of the captain of a ship was under 250 per annum, so as to make him a " workman " within sec. 13, and it was held that the value of his board while at sea must be taken into consideration (see supra, p. 168). In Midland Railway Company v. Sharpe ([1904], A.C. 349) the House of Lords decided that money given to a guard to get lodgings with was part of his earnings. There are therefore five distinct points as to the meaning of " average weekly earnings." (i) How is the average to be determined where the period of employment is too short for a true average to be taken ? (ii) Where the workman has entered into concurrent contracts with different employers are you to look to his earnings in the service of all the employers or merely of the one who is liable? (iii) and (iv) Where there has been an interruption of the work or a change of grade how is the average to be determined ? (v) Where the workman has received in addition to his wages a sum of money for other purposes is this to be included ? Clauses a, b, c, and d of this paragraph deal with these points seriatim, clause c dealing with both (iii) and (iv) . Clause (a) deals with the first point and enacts that where, owing either to the shortness of the period, the casual nature of the work, or the terms of the employ- ment, it is impossible to find the " average weekly earn- ings," you may look to what other workmen in the same grade and in the service of the same employer are earning, or failing any such, to what is earned by workmen in the employment of other employers in the same district. That is to say, it enacts exactly what the Court of Appeal in Bartlett v. Tutton ([1902], 1 K.B. 72), supra, said was not the law, and directs the arbitrator to have regard to what may be called the standard of the trade. The meaning of this paragraph has recently been con- SCHEDULE I 205 sidered by the Court of Appeal in the case of Perry v. Wright ([1908], 1 K.B. 441) and the three other cases reported with it. It was there held that in estimating the average weekly earnings under para. 2 (a) the object should be to arrive at the normal rate of remuneration of the injured man at the date of the accident ; and where exact computation is impracticable the Court for its guidance may have regard to the average weekly amount earned during the previous twelve months by a person in the same grade employed by the same employer, or, failing that, in the same class of employment in the same district. It was also held that in the ordinary case the " average weekly earnings " are to be calculated by dividing the total earnings of the workman during the relevant period, not by the number of weeks in that period, but by the number of weeks actually worked within that period; days in which no work is done and no wages are earned are to be disregarded. But this principle does not apply to cases under para. 1 (a) (i) (i.e., where a deceased workman had actually been employed by the same employer for upwards of three years). And neither does the principle apply where the limitation upon the time worked arises from the nature of the employment itself e.g., the case of a charwoman, where a certain amount of discontinuity is an incident of the employment. The meaning of the paragraph is explained by Cozens - Hardy, M.E., at p. 450: "Sect. 2 contem- plates circumstances which, though not uncommon, may be deemed out of the ordinary course. It lays down certain rules which must be observed wherever * earnings ' or ' average weekly earnings ' occurs in the schedule. The dominant principle is to be found in the first sentence of clause (a) * Average weekly earnings shall be computed in such manner as is best calculated to give the rate per week at which the workman was being remunerated.' This can scarcely be confined to one date, namely, the date of the accident ; for, under sec. 1 (a) and (6), it is clear that 206 THE WORKMEN'S COMPENSATION ACT, 1906 other dates cannot be disregarded. Then follows a proviso which contemplates that there may be cases in which computation is impracticable. No mandatory words are here used ; the phrase is simply ' regard may be had.' The sentence is not grammatical, but I think the meaning is this : Where you cannot compute you must estimate, as well as you can, the rate per week at which the workman was being remunerated, and to assist you in making an estimate you may have regard to analogous cases." See also Anslow v. Cannock Chase, the Times, December 12, 1908. The meaning of the word " grade " in clauses (a) and (c) of this paragraph was also considered in this case ; it was held that " grade " refers to the particular rank in the industrial hierarchy occupied by the workman, and not to his greater or lesser excellence in that rank ; but that the Court, having found that the workman has a grade, is not bound to adopt the average wages in that grade as the basis of compensation, but may take into consideration the personal capacity of the workman. In that case the applicant was a casual dock labourer, and the county court judge found that it was impractic- able to compute his rate of remuneration. He also found that among dock labourers there were " no definite grades," but that the men formed themselves into grades of good and bad, the former earning on an average 30s. a week and the latter about 15s. a week. He also found that the applicant did not stick to his work, and ought to be placed in the grade of a bad workman, and awarded compensation on the basis of 15s. a week. The Court of Appeal reversed this decision. Cozens-Hardy, M.R., said (at p. 451) : " I am not aware that the word ' grade ' in this connection has ever been interpreted. I think it refers to the particular rank in the industrial hierarchy occupied by the workman . . . and not to his greater or less excellence in that rank. It is a question of fact whether there is any ' grade ' to which the workman belongs, and it is likewise a question SCHEDULE I 207 of fact what is the average weekly amount in any par- ticular grade. If there is no grade, an estimate must nevertheless be made. . . . Having found that the man has a particular grade, and what are the average wages in that grade, there is no obligation to adopt those average wages as the basis of compensation. The personal element then comes in. It will be open to consider whether the individual workman is an average man or is above or below an average man." And later (at p. 453) his lordship says : "I think the learned county court judge has misdirected himself as to the meaning of the word ' grade.' That word does not involve or depend upon individual characteristics. Each grade may, and indeed must, have good and bad members. The good and the bad are not two grades. I think the case must go back to the learned county court judge to decide whether casual dock labourers form a distinct grade in the hierarchy of labour, and, if so, what are the average earnings in that grade. He may have regard to those average earnings, but he will not be bound to take those average earnings as the basis of his award." The other points raised in these cases are considered in the note on clause (c) of this paragraph, infra. Clause (b) is also new law. Under the old Act it was only the amount earned from the particular employer who was respondent which could be considered. This worked hardly on men who, like printers, were in the habit of working for a different employer each night of the week, for it might be only a fraction of their total weekly earnings which could be taken into consideration. This overrules the decision in Hathaway v. Argus Com- pany ([1901], 1 Q.B. 96). It should be noticed that this subsection does not extend to casual work done for other employers, but only applies where there are concurrent contracts. Clause (c) deals with two points. Firstly, it enacts that only work done in the grade in which the workman was placed at the time of the accident is to be considered. 208 THE WORKMEN'S COMPENSATION ACT, 1906 It thus overrules the decision in Price v. Marsden ([1899], 1 Q.B. 493, supra). It further enacts that " employment by the same employer" means "employment by the same employer uninterrupted by illness or other unavoid- able cause." Therefore the commencement of the period to be looked to is the occasion on which the workman last resumed work prior to his accident. The meaning of " employment by the same employer" was considered in Perry v. Wright, etc. ([1908], 1 K.B. 441, supra). It was there held that in determining whether there has been any change of employment, " employment by the same employer " for the purposes of this schedule means employment in the same grade, and any step up or down from one grade to another is to be regarded as constituting a fresh employment ; but in calculating any of the periods mentioned in para. 1 of the schedule, absence due to illness or to causes beyond the control of the workman is to be disregarded, and the employment is to be reckoned as continuous. Clause (d) enacts that money given to a workman to enable him to meet expenses is not to be counted as part of his earnings. This overrules Midland Railway Company v. Sharpe ([1904], A.C. 349), supra, but does not deal with other sums which the workman receives besides his wages, such as tips (see Penn v. Spiers [1908], 1 K.B. 766), or compensation for a previous injury (see Perry v. Wright [1908], 1 K.B. 441, supra). This section thus puts to rest the great majority of the points which have arisen on the words " average weekly earnings," the only question left open being the one discussed in Pomphrey v. Southward Press ([1901] , 1 K.B. 86, supra), as to what other things besides money are to be counted as earnings, which forms a part of the fifth point above. On this last point there have already been four decisions under the present Act. In Dothie v. Macandrew ([1908] 1 K.B. 803) it was held that the board given to the captain of a ship while at sea formed part of his "remuneration " for the purpose of deciding SCHEDULE I 209 whether he was earning less than J6250 per annum (see sec. 13, p. 168). In Penn v. Spiers ([1908], 1 K.B. 766), the Court of Appeal held that tips received by a waiter may be taken into account in fixing his average weekly earnings subject only to this, that earnings would not include tips which (a) are illicit or (b) in- volve or encourage a neglect or breach of duty on the part of the recipient to his employer, or (c) are casual and sporadic and trivial in amount (see per Cozens- Hardy, M.K., at p. 770). In Perry v. Wright ([1908], 1 K.B. 441, supra) a workman received an injury which partially incapacitated him, and afterwards accepted light employment from his old employers, receiving a small amount as wages and also a weekly payment as compensation. He was then killed by a second accident. It was held that the amount of the weekly payments of compensation could not be taken into account in fixing his "average weekly earnings." In Eosengvist v. Bowring ( [1908] , 2 K.B. 109) a seaman who served on an ocean-going ship received 21s. a week in addition to his board and lodging. It was held by the Court of Appeal that in calculating the value of the board and lodging so as to arrive at his average weekly earnings, the cost to the shipowners was the test, and not what it would have cost the workman to keep himself on shore. (3) In fixing the amount of the weekly payment, Sched. I. (3). regard shall be had to any payment, allowance, or benefit which the workman may receive from the employer during the period of his incapacity, and in the case of partial incapacity the weekly pay- ment shall in no case exceed the difference be- tween the amount of the average weekly earnings of the workman before the accident and the 14 210 THE WORKMEN'S COMPENSATION ACT, 1906 average weekly amount which he is earning or is able to earn in some suitable employment or business after the accident, but shall bear such relation to the amount of that difference as under the circumstances of the case may appear proper. This paragraph is differently expressed from the corre- sponding one in the Workmen's Compensation Act, 1897. It deals with two distinct points. Firstly, it directs the arbitrator to take into consideration any sums other than compensation which the workman may have received from the employer during the incapacity. It is submitted that " regard shall be had " means that the arbitrator is to consider these points in exercising his discretion. It cannot mean that he is obliged to subtract the whole amount of any such payments from the compensation. This view is in accordance with the decisions under the old Act, which show that within the prescribed limits the amount of the compensation is within the discretion of the arbitrator (see Osmond v. Campbell and Harrison [1905], 2 KB. 852; Ellis v. Knott, the Times, April 9, 1900 ; and Powell v. Edwards, the Times, July 28, 1900). If the employer retains his workman at the same wages after the accident, although he is not able to do the same work, the workman suffers no immediate pecuniary loss from the accident ; but should the employer later on dismiss him, he would be unable to obtain equally re- munerative work. In such a case he is entitled to an award for a nominal amount (see Chandler v. Smith [1899], 2 Q.B. 506), and he can apply to have the award reviewed if at a later period his wage-earning capacity is lessened in the way suggested (see the note on para. 16 of this schedule). This provision will probably be frequently resorted to in the case of domestic servants. The arbitrator is obliged to exercise his discretion in each case that comes before him ; and it was accordingly held by the House of Lords in Webster v. Sharp ([1905], SCHEDULE I 211 A.C. 284), that a rule, the practice of a Court, to award the full amount in the absence of special circumstances was bad. The second part of this paragraph only applies in cases where the incapacity is partial. In such cases the work- man would probably be able to earn something after the accident, and the paragraph directs that he is in no case to receive more compensation than the difference between his former " average weekly earnings " and the amount he is earning or is able to earn after the accident. This provision was necessary to get over the effect of Wilson v. Jackson (7 W.C.C. 122) where the Court of Appeal held that the employer was not entitled to have the payments stopped, although the workman was then earning more than before the accident. It should be noticed that the workman can receive the full amount of this difference and not merely 50 per cent, of it. Thus if his average weekly earnings were 2, and after the accident he earns 1 10s. per week, the maximum amount he can receive is 10s. per week, not merely 5s. This is the meaning of this section, and it is also the interpretation put upon the corresponding section of the old Act in Illingworth v. Walmsley (16 T.L.B. 281). Thus in the case put the arbitrator would take 10s. a week as the maximum, and would then award such sum " as under the circumstances of the case may appear proper," which in the absence of special circum- stances would no doubt usually be the maximum amount. The words " able to earn " occurred also in the old Act and gave rise to some difference of opinion. It was decided in Clark v. The Gas Light and Coke Company (21 T.L.B. 184) that the expression means not merely physically able to earn, but able to obtain the means of earning. In that case the injured man had recovered his health, but in spite of his best efforts had been unable to obtain a fresh situation, and it was held that he was not "able to earn" and was therefore entitled to com- pensation. As these words have been retained in this 212 THE WORKMEN'S COMPENSATION ACT, 1906 Act after considerable discussion in committee, it is apparently intended that the rule laid down in Clark's case shall remain the law. It is hardly necessary to point out that " able to earn" and " willing to earn " are not the same thing, and there- fore the workman would have to show that he had used his best efforts to obtain work in " some suitable employ- ment or business." i. (4). (4) 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 employer, and, if he refuses to submit himself to such examination, or in any way obstructs the same, his right to compensation, and to take or prosecute any proceeding under this Act in rela- tion to compensation, shall be suspended until such examination has taken place. This paragraph is almost identical with the correspond- ing one in the old Act. If proceedings are on foot and the workman refuses to submit to an examination, the employer can apply for a stay of proceedings (see Kule 55, p. 307). Where a workman has given notice, etc. In shorn v. Vickers ([1900], 2 Q.B. 91) the workman had given no notice of the accident, but the employer had waived any defence he might have acquired by the absence of notice. The workman relied on the absence of notice as a reason why this section should not apply, but the Court of Appeal overruled this contention. If therefore arbi- tration proceedings are on foot, the workman is obliged to submit to an examination, whether or not he has given notice of his accident. Duly qualified medical practitioner is a person regis- tered under the Medical Act, 1858. SCHEDULE I 213 In any way obstructs. There are two Scotch cases as to what amounts to an obstruction. In Finnic <$ Son v. Duncan (7 F. 254) the workman after giving notice of the accident had gone to Australia. It was held that this amounted to an " obstruction of the medical exami- nation," and entitled the employer to a stay. In Baird v. Kane (7 F. 461) the workman had twice submitted to an examination and had then gone to live in Dublin. The employer then requested him to return to Glasgow for a further examination, but he refused to do so and offered to submit himself to examination in Dublin. It was held that this did not amount to an obstruction (see also Strannigan v. Baird, 6 F. 784). It has been held that although the workman is bound to submit himself to examination by a medical practitioner, he need not submit to examination by a medical referee ; that is optional (Edwards v. Guest, Keen, and Nettle/old [1904], 1 KB. 339, and see Niddrie and Benhar Coal Company v. M'Kay, 5 F. 1121, disapproving Davidson v. Summerlee and Mossend Iron Company, 5 F. 991). Shall be suspended. This should be read in conjunc- tion with sec. 20 of this schedule. If at a later period the suspension is ended and compensation is awarded, nothing can be given in respect of the period of suspension. (5) The payment in the case of death shall, unless Sched. i. (5). otherwise ordered as hereinafter provided, be paid into the county court, and any sum so paid into court shall, subject to rules of court and the pro- visions of this schedule, be invested, applied, or otherwise dealt with by the court in such manner as the court in its discretion thinks fit for the benefit of the persons entitled thereto under this Act, and the receipt of the registrar of the court shall be a sufficient discharge in respect of the amount paid in : 214 THE WORKMEN'S COMPENSATION ACT, 1906 Provided that, if so agreed, the payment in case of death shall, if the workman leaves no dependants, be made to his legal personal repre- sentative, or if he has no such representative, to the person to whom the expenses of medical attendance and burial are due. This is quite new law. Under the old Act, the pay- ment was made to the person entitled, although by consent the course of paying the money into court was often adopted. It has been regretted by some critics of the Act that this paragraph should only be applicable in the case of death ; and it has been urged that most valuable statis- tical records would be obtained if payment into court were compulsory in all cases. But, looked at from the point of view of the workman or dependants, the positions in the cases of death and incapacity are very different. If a sum of several hundred pounds is paid to the family of a workman, there is a very grave danger that the money may be unwisely spent. Such an objection does not apply in the case of a few shillings a week being paid during incapacity ; and it is probably for this reason that the distinction has been drawn by the Legislature. In the case of the workman leaving no dependants the maximum amount of compensation payable is 10, and that is only for the medical and funeral expenses; so there can be no objection to the payment being made direct to the person who has had to bear the expense. The method of payment in, and of application of the money by the Court is dealt with in Rule 56 of the Workmen's Compensation Rules, 1907 (see post, p. 307). Sched. i. (6). (6) Eules of court may provide for the transfer of money paid into court under this Act from one court to another, whether or not the court from SCHEDULE I 215 which it is to be transferred is in the same part of the United Kingdom as the court to which it is to be transferred. (7) Where a weekly payment is payable under Sched - l - W this Act to a person under any legal disability, a county court may, on application being made in accordance with rules of court, order that the weekly payment be paid during the disability into court, and the provisions of this schedule with respect to sums required by this schedule to be paid into court shall apply to sums paid into court in pursuance of any such order. This paragraph acts as a protection to the employer in the case where the person receiving the payment is not able to give a valid receipt. The rule dealing with this matter is Eule 57 (see p. 309). Paras. 8-13 of this schedule contain the provisions with respect to sums paid into court. (8) Any question as to who is a dependant Sched. i. (8). shall, in default of agreement, be settled by arbitration under this Act, or, if not so settled before payment into court under this schedule, shall be settled by the county court, and the amount payable to each dependant shall be settled by arbitration under this Act, or if not so settled before payment into court under this schedule, by the county court. Where there are both total and partial dependants nothing in this schedule shall be construed as preventing the compensation being allotted partly to the total and partly to the partial dependants. 216 THE WORKMEN'S COMPENSATION ACT, 1906 The first part of this paragraph corresponds with para. 5 of the first schedule of the old Act, and deals with two alternative positions. Firstly, if the employer takes no step, and there is a dispute as to who is a dependant, then there must be an arbitration under this Act and the arbitrator must decide who is a depen- dant and to what share each dependant is entitled. Presumably in such a case the employer would have to pay the costs of the successful dependants ; and his wiser course therefore would be to adopt the second alternative and pay the money into court, leaving the various claimants to fight it out. In this latter case the matter is adjudicated on by the county court i.e., by the judge as such, not sitting as arbitrator under this Act. The second part of the paragraph, which enacts that both total and partial dependants may receive a share in the compensation, was rendered necessary by the decision of the Scotch Courts in Pagan v. Murdoch (1 F. 1179). In that case a claim was made by partial dependants, and the defence was that a total dependant was in existence, although he had made no claim. The Court held, after some hesitation, that clause a (ii) of para. 1 of the first schedule of the old Act, which was identical with the same clause in this Act, only operated where there were no total dependants (see ante, p. 192), and therefore that the claimants in that case were not entitled to any compensation. The point never came before the English Courts, and it is by no means clear that they would have followed Fagan v. Murdoch. But this paragraph now puts the matter at rest. sched. i. (9). (9) Where, on application being made in accord- ance with rules of court, it appears to a county court that, on account of neglect of children on the part of a widow, or on account of the varia- SCHEDULE I 217 tion of the circumstances of the various depen- dants, or for any other sufficient cause, an order of the court or an award as to the apportion- ment amongst the several dependants of any sum paid as compensation, or as to the manner in which any sum payable to any such dependant is to be invested, applied, or otherwise dealt with, ought to be varied, the court may make such order for the variation of the former order or the award as in the circumstances of the case the court may think just. This paragraph is quite new law and may be most far- reaching in its results. It will be noticed that there are three different circumstances under which the variation may be made (i) neglect of children by a widow, (ii) variation of the circumstances of the various dependants, (iii) any other sufficient cause. (i) With regard to the first, it is almost impossible to say what amount of neglect would be sufficient ; but presumably if it could be shown that the money which had been awarded to the children was being spent by the mother on her own pleasures, that would be sufficient, if coupled with a general neglect of her maternal duties, to enable the judge to order that the children's money should be paid to some one else on their behalf. If the mother applied the money properly for expenses of the household but neglected the children in other ways as for instance, if she were constantly drunk, and did not wash or clothe them properly it would be a very strong thing to say that the compensation money should not be paid to her, and in such a case it is submitted that the order would not be varied. (ii) The power to vary the order as the circumstances of the dependants vary is a useful provision which gets over a difficulty that had been felt under the old Act. The 218 THE WORKMEN'S COMPENSATION ACT, 1906 point came before the Court of Appeal in the case of Manchester v. Carlton (89 L.T. 730). In ithat case the family of dependants consisted of a mother and daughters and one son, and the county court judge was of opinion that the most advantageous way of dividing the money was that they should all share in it at first, and that then as the son began to be self-supporting his share in the payments should cease. The Court of Appeal held that there was no power under the Act to make any such arrangement nor to deprive any one not sui juris of his share in the compensation. Such a case would now be met by an application to the Court to vary its order under this section. (iii) Such causes will, no doubt, be rare. Probably it would be a sufficient cause if the widow were obliged to live in a different town from the children. It might then be advisable for the money to be paid to some one who was acting as their guardian. On application being made in accordance with rules of court. The rule dealing with this is Kule 58 (p. 310). It will be noticed that the application may be made by any one interested, and it may become necessary to decide who such a person is. For instance, a clergyman might discover that the mother was neglecting her children and might make the application. Could the Court act on such an application ? The clergyman would be interested in the welfare of the children, no doubt, but would not be interested, in any legal sense, in the com- pensation money. On the whole, it seems probable that such an application would be a proper one on which the Court would be entitled to act. It appears to a county court i.e., to the judge as such, not as an arbitrator. So that if the award had originally been made by a lay arbitrator he would have no power to act under this section, and the application must be made to the judge. Apportionment amongst the several dependants. This can hardly mean that a sum actually paid over to a SCHEDULE I 219 particular dependant can be affected and that the de- pendant can be ordered to refund it. If so a dependant would be in a very precarious position. It probably only refers to money which has been invested by the Court and of which the interest only has been paid over. The paragraph will be useful in enabling money which has been ordered to be invested to be taken out for the purpose of paying for apprenticeship and similar matters. (10) Any sum which under this schedule is Sched. i. (io). ordered to be invested may be invested in whole or in part in the Post Office Savings Bank by the registrar of the county court in his name as registrar. (11) Any sum to be so invested may be invested Sched. i. (ii). in the purchase of an annuity from the National Debt Commissioners through the Post Office Savings Bank, or be accepted by the Postmaster- General as a deposit in the name of the registrar as such, and the provisions of any statute or regulations respecting the limits of deposits in savings banks, and the declaration to be made by a depositor shall not apply to such sums. (12) No part of any money invested in the Sched. i. (12). name of the registrar of any county court in the Post Office Savings Bank under this Act shall be paid out, except upon authority addressed to the Postmaster-General by the Treasury or, subject to regulations of the Treasury, by the judge or registrar of the county court. (13) Any person deriving any benefit from any Sched. i. (is), moneys invested in a post office savings bank 220 THE WORKMEN'S COMPENSATION ACT, 1906 under the provisions of this Act may, neverthe- less, 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 im- posed by any statutes or regulations in respect of the opening of accounts in two savings banks, or of two accounts in the same savings bank. These four paragraphs (which should be read together ; see Daniel v. Ocean Coal Company [1900], 2 Q.B. 250) are almost identical with the corresponding ones in the old Act. There are a number of statutes dealing with the Post Office Savings Banks. The most important are 24 and 25 Vic. c. 14, 26 and 27 Vic. c. 14, 37 and 38 Vic. c. 73, 43 and 44 Vic. c. 36, 50 and 51 Vic. c. 40, 54 and 55 Vic. c. 21, and 56 and 57 Vic. c. 69. The statutes dealing with the purchase of annuities are 16 and 17 Vic. c. 45, 27 and 28 Vic. c. 43, and 45 and 46 Vic. c. 51. The second part of para. 11 is necessitated by the provisions in the statutes dealing with savings banks, which forbid a greater sum than 200 being deposited in the name of any one depositor, and which require him to make a declaration as to the amount of his deposits. This paragraph is for the protection of the registrar ; and para. 13 extends a similar protection to the beneficiary himself, who might otherwise be liable to penalties if the sum in his private account together with the compensa- tion money exceeded the prescribed limit. Sched. i. (14). (14) Any workman receiving weekly payments under this Act shall, if so required by the em- ployer, from time to time submit himself for examination by a duly qualified medical practi- tioner provided and paid by the employer. If SCHEDULE I 221 the workman refuses to submit himself to such examination, or in any way obstructs the same, his right to such weekly payments shall be sus- pended until such examination has taken place. This paragraph should be read in conjunction with para. 4 of this schedule (p. 212, ante). Para. 4 deals with the position prior to the award, and this paragraph applies the same provisions to the workman who is actually receiving weekly payments. The effect of it is that the workman can be called on to submit himself to examination by a medical practitioner, in accordance with regulations made under para. 15 ; and in default of doing so, his weekly payments are to cease. As to the effect of the medical practitioner's report, see the note on the next paragraph. Duly qualified medical practitioner is a person regis- tered under the Medical Act, 1858. In any way obstructs. In Finnie & Son v. Duncan (7 F. 254) the workman after giving notice of the accident had gone to Australia. It was held that this was an obstruction of the medical examination and entitled the employer to a stay. In Baird v. Kane (7 F. 461) the workman had twice submitted to an examination and had then gone to live in Dublin. The employer then requested him to return to Glasgow for a further examination, but he refused to do so and offered to submit himself to examination in Dublin. It was held that this did not amount to an obstruction (see also Edwards v. Guest, Keen, & Nettle/old [1904], 1 KB. 339; Niddrie and Benhar Coal Company v. M'Kay, 5 F. 1121; and Strannigan v. Baird, 6 F. 784). Shall be suspended. This should be read in conjunc- tion with para. 20 of this schedule. If at a later period the suspension is ended and the weekly payments 222 THE WORKMEN'S COMPENSATION ACT, 1906 are renewed, nothing is to be given in respect of the period of suspension. Sched. i. (15). (15) A workman shall not be required to submit himself for examination by a medical practitioner under para. (4) or para. (14) of this schedule otherwise than in accordance with regulations made by the Secretary of State, or at more frequent intervals than may be prescribed by those regulations. Where a workman has so submitted himself for examination by a medical practitioner, or has been examined by a medical practitioner selected by himself, and the employer or the workman, as the case may be, has within six days after such examination furnished the other with a copy of the report of that practitioner as to the workman's condition, then, in the event of no agreement being come to between the employer and the workman as to the workman's condition or fitness for employment, the registrar of a county court, on application being made to the court by both parties, may, on payment by the applicants of such fee not exceeding one pound as may be prescribed, refer the matter to a medical referee. The medical referee to whom the matter is so referred shall, in accordance with regulations made by the Secretary of State, give a certificate as to the condition of the workman and his fitness for employment, specifying, where necessary, the kind of employment for which he is fit, and that SCHEDULE I 223 certificate shall be conclusive evidence as to the matters so certified. Where no agreement can be come to between the employer and the work- man as to whether or to what extent the inca- pacity of the workman is due to the accident, the provisions of this paragraph shall, subject to any regulations made by the Secretary of State, apply as if the question were a question as to the condition of the workman. If a workman, on being required so to do, refuses to submit himself for examination by a medical referee to whom the matter has been so referred as aforesaid, or in any way obstructs the same, his right to compensation and to take or prosecute any proceeding under this Act in relation to compensation, or, in the case of a workman in receipt of a weekly payment, his right to that weekly payment, shall be suspended until such examination has taken place. Eules of court may be made for prescribing the manner in which documents are to be fur- nished or served, and applications made under this paragraph and the forms to be used for those purposes and, subject to the consent of the Treasury, as to the fee to be paid under this paragraph. This paragraph is all new law, and should it be much resorted to, may be very useful in diminishing costs in those cases where the only dispute between the parties is as to the workman's condition. But it is feared that the paragraph will remain practically a dead letter, since the reference to a medical referee can only be made when 224 THE WORKMEN'S COMPENSATION ACT, 1906 both parties apply for it. Had it been made compulsory on the application of one party, it would have put an effectual stopper on malingering, and it is to be regretted that the paragraph has been settled in its present form. The first clause enacts that the submission of a workman to medical examination shall be in accordance with rules to be made by the Home Secretary, and prevents the workman being unnecessarily harassed by too frequent examinations. The rules referred to were issued on June 28, 1907, and are set out in Appendix F. The second and third clauses are the important ones, and their effect is as follows : When the workman, either at his own instigation or in accordance with para. 4 or 14, has submitted himself to examination, the medical practitioner has to make a report on his con- dition. Then, if the employer and workman can come to an agreement that the report is a correct one, no further question as to the workman's condition or fitness for employment can arise. But if no such agreement can be come to, then both parties may apply to the registrar, asking for the matter to be referred to a medical referee. Then on the payment of the prescribed fee the matter is referred, and the medical referee gives a certificate which is conclusive evidence of the workman's condition and fitness for employment. It will be seen how very useful this paragraph might be ; for in many arbitrations the workman's condition may be the only question outstanding between the parties, and in applications to review the award it is more often than not the only question. A medical referee is appointed under sec. 10 of the Act. The fourth clause extends the provisions of clauses 2 and 3 to another case, namely, where the incapacity of the workman is admitted and the dispute is as to whether it is due to the accident or not. This adopts the law laid down in Scotland in Boase Spinning Company v. M'Avan (38 S.L.E. 772), where the question of a workman's condition was referred to a doctor who SCHEDULE I 225 certified that he was incapable of work, but that this was not due to the accident but to old age and other causes. It was held that this certificate was conclusive and prevented the workman from recovering compensation. The fifth clause extends the provisions of paras. 4 and 14 (q.v.) to the reference to the medical referee (see the cases referred to in the notes on those paragraphs at pp. 212 and 221). As the reference can only take place on the application of both parties, it is very unlikely that the workman would refuse to submit himself to the referee for exami- nation. " On being required to do so" must mean "on the registrar making the order for him to so submit himself," as the rules empower the registrar to make such an order. The rules made under this section (Rule 54) are set out on p. 305. On this paragraph see Edwards v. Guest, Keen, and Nettle/old ([1904], 1 K.B. 339). (16) Any weekly payment may be reviewed at the Sched. i. (16). 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. Provided that where the workman was at the date of the accident under twenty-one years of age and the review takes place more than twelve months after the accident, the amount of the weekly payment may be increased to any amount not exceeding 50 per cent, of the weekly sum which the workman would probably have been earning at the date of the review if he had remained uninjured, but not in any case exceeding one pound. 15 226 THE WORKMEN'S COMPENSATION ACT, 1906 Only the proviso to this paragraph is new law ; the first part is taken from the Workmen's Compensation Act, 1897, and there are several decisions under that Act which must be considered. In Crosfield v. Tanian ([1900], 2 Q.B. 629) the Court of Appeal had to decide whether the judge had any power to hold such a review where nothing had occurred to alter the position of the parties since the original hearing. If such a power existed, it would in effect amount to the granting of a new trial on the question of amount ; and for this reason it was held that it was a condition precedent to a review that there should have been a change in the circumstances since the date of the award. This must be compared with Sharman v. Holliday ([1904] 1 K.B. 235). There the award had been reduced to a nominal amount by the county court judge, acting on the evidence of medical experts who said that the workman had recovered. The workman had then tried to get work, but in spite of his best efforts had been unable to do so, on account of his injury. It was held by the Court of Appeal that these unsuccessful efforts amounted to a change in the circumstances which entitled him to a review (cf. also Clark v. Gas Light and Coke Company, 21 T.L.E. 184, supra, p. 211). In Norman and Burt v. Walder ([1904], 2 K.B. 27) it was held that on an application to review the judge must take into consideration any amount earned by the workman in a business set up by himself after the accident. In Bryson v. Dunn and Stephen (8 F. 226) the work- man earned 36s. 8d. per week before the accident. He was totally incapacitated and was awarded 18s. 4d. per week. Later he partially recovered and was taken back by his employers at 17s. a week. It was held that, on an application to review, the arbitrator was not bound to reduce the payments. It has been held that if on a review the judge termi- SCHEDULE I 227 nates the payments, that is final, and no further review can be held. This was the decision of the House of Lords in Nicholson v. Piper ( [1907], A.C. 215), where it was pointed out that if the judge were of opinion that the workman was not entitled to a substantial amount, but nevertheless wished to keep the award alive in case the workman's condition should become worse, the course could be taken of reducing the payments to a nominal sum. The review may take place out of court by agreement between the employer and workman. In Bradbury v. Bedworth Coal and Iron Company (the Times, March 17th, 1900) the workman and employer had agreed that the compensation should be so much a week, and later the workman went back to work with the same employer and received no further compensation. It was held that this amounted to an agreement that the payments should be ended. And cf. Field v. Longden ([1902], 1 KB. 47) and Beath and Keay v. Ness (6 F. 168). This must be compared with the decision in Williams v. Vauxhall Colliery Company ([1907], 2 KB. 433), where the Court of Appeal held that a mere going back to work was not conclusive of an agreement to end the payments. This case also decided the important point that the rights of the workman and of his dependants are separate rights, and therefore that an agreement by the workman that the payments should be ended would not deprive the dependants of their right to compensa- tion in the event of his death ; subject only to this, that the employer cannot be called on to pay out a greater sum than the maximum allowed by the Act ; so that if the amount paid to the workman before his death plus the amount awarded to the dependants exceeds that maximum, the dependants' compensation must be pro tanto reduced. It has been decided in Morton v. Woodward ( [1902] , 2 KB. 276) that an arbitrator has power to antedate his award and make the amount payable under it start from an earlier date than that on which the applica- 228 THE WORKMEN'S COMPENSATION ACT, 1906 tion for review came before him. In that case the county court judge found that the incapacity had ceased from a date in September, 1901 ; but the application to review did not come before him till the following April. From September till April no payments had been made to the workman, so that arrears were due to him. The county court judge thought he had no power to deprive the workman of these arrears, but he was overruled by the Court of Appeal. This decision has been criticised in the Scotch case of Steel v. Oakbank Oil Company (5 F. 244), and on almost similar facts it was held that the arbitrator could only review the payments from the date of his order ; and somewhat analogous is the decision in Allan v. Spowart, (8 F. 811), where it was held that the arbitrator had no power under this section to order the payments to cease on a specified future day ; and cf . also Pumpherston Oil Company v. Cavaney (5 F. 963). The English decision of course remains binding on the English courts ; and it is submitted it is the right one, for this reason, that the only construction consistent with the scheme of the Act is that the payment should continue during the incapacity of the workman and no longer. There is no power to join a claim for a review under this paragraph with one for redemption under the next paragraph at a fixed maximum (Castle v. Atkinson [1905], 1 KB. 336). In the Scotch case of Johnstone v. Cochran d Co. (6 F. 854) the sheriff had referred the matter to a medical referee and made his review acting on the referee's report, refusing to hear evidence tendered by the workman. It was held by the Court of Session that he was obliged to hear the evidence. See also on this section Bryce v. Connor (7 F. 193) ; Ferrier v. Gourlay (4 F. 711) ; and Dowds v. Bennie (5 F. 268). The proviso is new, and the workman who comes within its provisions gets an advantage in two ways. First of all, the payments are not " subject to the SCHEDULE I 229 maximum above provided," but may be increased up to 50 per cent, of the amount he would probably be earning at the date of the review if no accident had occurred. Secondly, it is presumed that the decision in Crosfield v. Tanian ([1900], 2 Q.B. 629) would not apply in such a case, and he would not therefore have to show that there had been a change in the circumstances since the award was made. The proviso must be read in conjunction with proviso (6) of para. 1 of this schedule. By that proviso the work- man under twenty-one years of age, if at the time of the accident he was earning less than 20s. a week, might get as a weekly payment 100 per cent, of his wages, instead of merely 50 per cent., but he was not to get more than 10s. a week. By this proviso that sum may be increased to half his probable earnings if he had remained uninjured, but he is not to get more than 20s. a week. But notice that this proviso does not only apply to workmen within proviso (b) of para. 1. For a youth under twenty-one might at the time of the accident be earning more than 20s. a week, in which case he would only have received 50 per cent, as weekly payments. But he would still be entitled to have a review under this proviso. No indication is given in the Act as to how the arbi- trator is to arrive at the sum which the workman would "probably have been earning," and it is a question of fact which he must determine for himself as best he can. A rough and ready rule would be to find out what position other youths of the workman's grade had attained to. (17) Where any weekly payment has been con- sched. i. tinned for not less than six months, the liability therefor may, on application by or on behalf of the employer, be redeemed by the payment of a lump sum of such an amount as, where the incapacity is permanent, would, if invested in 230 THE WORKMEN'S COMPENSATION ACT, 1906 the purchase of an immediate life annuity from the National Debt Commissioners through the Post Office Savings Bank, purchase an annuity for the workman equal to 75 per cent, of the annual value of the weekly payment, and as in any other case may be settled by arbitration under this Act ; and such lump sum may be ordered by the committee or arbitrator or judge of the county court to be invested or otherwise applied for the benefit of the person entitled thereto : Provided that nothing in this paragraph shall be construed as preventing agreements being made for the redemption of a weekly payment by a lump sum. The provision with regard to the manner of calculating the amount of the sum to be paid is new. There were no such directions in the old Act, and judges were in the habit of taking the value of a life annuity as a basis and deducting something to allow for the contingency of a recovery or of the workman's early death. Under both Acts the application for redemption can only be made by or on behalf of the employer, not by the workman. Consequently under the old Act such applications were seldom made, for the employer had little or nothing to gain. The method of calculating the annuities is set out in the Post Office Eegulations for 1908. It will be noticed that the method of calculation on the 75 per cent, basis only applies when the incapacity is permanent. In other cases the amount must be settled by arbitration. No method is indicated by which the question of the permanency of the incapacity is to be settled ; the pro- visions of para. 15 of this schedule only apply to medical examinations under paras. 4 and 14. But if the workman was examined under para. 14 and then the matter was submitted to a medical referee under para. 15 and the SCHEDULE I 231 medical referee reported that the incapacity was per- manent, that would, no doubt, be conclusive for the purposes of this paragraph. In any other case the arbitrator could submit the matter to a medical referee for a report under para. 15 of Sched. II., infra, p. 262. The proviso refers to cases where the agreement for redemption is made between the parties, without an application to the Court and not necessarily six months after the payments had commenced. But for it doubts might be cast on the validity of such an agreement, having regard to the provisions of this paragraph and of the sections of this Act dealing with contracting out. This proviso must be read in conjunction with para. 10 of Sched. II., which provides that agreements for redemp- tion shall be of no effect unless a memorandum of them is registered in accordance with the provisions of para. 9 of the second Schedule (see p. 247). It has been held in Castle v. Atkinson ([1905], 1 KB. 336) that there is no power to hear an application that a weekly payment shall be redeemed at a sum not to exceed a certain maximum figure. (18) If a workman receiving a weekly payment Sched. i. (is), ceases to reside in the United Kingdom, he shall thereupon cease to be entitled to receive any weekly payment, unless the medical referee certifies that the incapacity resulting from the injury is likely to be of a permanent nature. If the medical referee so certifies, the workman shall be entitled to receive quarterly the amount of the weekly payments accruing due during the preceding quarter so long as he proves, in such manner and at such intervals as may be prescribed by rules of court, his identity and the continuance of the incapacity in respect of which the weekly payment is payable. 232 THE WORKMEN'S COMPENSATION ACT, 1906 This paragraph is new law; it should be read in conjunction with the rule made under it (Kule 60), which is set out at p, 310, and the amended Kule at p. 483. The scheme of the paragraph is that if a workman goes abroad he loses his right to be compensated, unless a medical referee certifies that the incapacity is likely to be of a permanent nature. In that case he can get the accumulated weekly payments sent to him quarterly on proving his identity and the continuance of the incapacity in the way prescribed in the rules. This paragraph, on the one hand, prevents a man going abroad and drawing pay while the employer is unable to find out anything about him, and on the other hand makes it possible for a permanently injured workman to live where he pleases. Notice that under this paragraph the medical referee " certifies " and does not " report." Therefore his finding is conclusive. Sched. i. (19). (19) 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. The right to the payments would not therefore pass to the trustee in bankruptcy of the workman, nor can such right be given by way of security for a debt not dealt with by the workman in any way at all. Such costs as are awarded to the workman's solicitor in the arbitration may be deducted from the compen- sation (see Sched. II. para. 14). Sched. i. (20). (20) Where under this schedule a right to com- pensation is suspended no compensation shall be payable in respect of the period of suspension. See sees. 4 and 14 of this schedule and the notes thereon at p. 212 and p. 221. SCHEDULE I 233 (21) Where a scheme certified under this Act Sched. i. (ai). provides for payment of compensation by a friendly society, the provisions of the proviso to the first subsection of sec. 8, sec. 16, and sec. 41 of the Friendly Societies Act, 1896, shall not apply to such society in respect of such scheme. See sec. 3 of the Act, p. 104. The proviso to sec. 8, subsec. 1, of the Friendly Societies Act, 1896, 59 and 60 Vic. c. 25 : " provided that a Friendly Society which contracts with any person for the assurance of an annuity exceeding 50 per annum or a gross sum exceeding ,200 shall not be registered under this Act." Sec. 16 : "A society assuring a certain annuity shall not be entitled to registry, unless the tables of contribu- tions for the assurance, certified by the actuary of the National Debt Commissioners or by some actuary approved by the Treasury who has exercised the profes- sion of actuary for at least five years, are sent to the registrar with the application for registry." Sec. 41 : "A member, or person claiming through a member, of a registered friendly society or branch, shall not be entitled to receive more than 200 by way of gross sum together with any bonuses or additions declared upon assurances not exceeding that amount, or (except as provided by this Act) 50 a year by way of annuity from any one or more such societies or branches." The effect of this is that where payment is to be made by a friendly society under a scheme certified by the registrar of friendly societies under sec. 3 of this Act, the enactments restricting the amount which may be paid out to any member are not to apply. (22) In the application of this Act to Ireland the Sched. i. (22) provisions of the County Officers and Courts 234 THE WORKMEN'S COMPENSATION ACT, 1906 (Ireland) Act, 1877, with respect to money deposited in the Post Office Savings Bank under that Act shall apply to money invested in the Post Office Savings Bank under this Act. The County Officers and Courts (Ireland) Act, 1877, 40 and 41 Vic. c. 56 (the reference in the marginal note in the Statutes isi wrong), sec. 39: "The Lord Chancellor, with the concurrence of the chairman of each county, may from time to time order at what places and in what post office savings bank or other bank moneys paid into court in any equitable proceedings under this Act shall be deposited, and may make rules and regulations for such deposits : and every such deposit, if in a post office savings bank, may be made without restriction as to amount, and without the declaration required by a depositor ; and no money when deposited under this Act shall be paid out except upon an order signed by the Lord Chancellor or by the chairman of the Court by the order of which the money was deposited." Compare this with paras. 10-13 of this schedule. SCHEDULE II (1) FOE the purpose of settling any matter which sched. n. (i). under this Act is to be settled by arbitration, if any committee, representative of an employer 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. The Workmen's Compensation Act, 1897, created a new tribunal in this committee, but it is not one which has been or is ever likely to be of much use. The Arbitration Act does not apply to proceedings before a committee (see para. 4, infra), and the committee has no power to administer an oath or to compel the attendance of witnesses or the production of documents. There is no provision for an appeal from a committee, whose decision therefore is final, unless it voluntarily submits a point of law for the decision of the county court judge (under para. 4 hereof). Matter to be settled by arbitration. There can be no arbitration unless a question has arisen (see Field v. 235 236 THE WORKMEN'S COMPENSATION ACT, 1906 Longden [1902], 1 K.B. 47, and Caledon v. Kennedy (8F. 960). Representative of an employer and his workmen. It is not very clear what this means; presumably if the committee was elected by the employer and by the majority of the workmen it would be sufficient, but the point is not likely to arise, as either party may object to the tribunal merely by sending a notice in writing to the other party, and in that case the committee has no power to proceed. " Eepresentative " is denned in the Century Dictionary as meaning " acting as substitute for or agent of another or others ; performing the func- tions of another or others." Power to settle matters. Certain powers and duties are expressly given to committees by the Act. Thus (i) By para. 15 of this schedule they may submit any matter to a medical referee for his report, (ii) By para. 9 of this schedule they must send a memorandum of their award to the registrar of the county court for registration. (iii) By para. 4 of this schedule they can submit any point of law to the county court judge for his decision, (iv) By this present paragraph they may at their discretion refer the matter to arbitration. Be referred by them. It will be noticed that although the committee may refer the matter to arbitration, they have no power to appoint an arbitrator. Sched. ii. (2). (2) If either party so objects, or there is no such committee, or the committee so refers the matter or fails to settle the matter within six months from the date of the claim, the matter shall be settled by a single arbitrator agreed on by the parties, or in the absence of agreement by the judge of the county court, according to the procedure prescribed by rules of court. SCHEDULE II 237 (3) In England the matter, instead of being Sched. n (3). settled by the judge of the county court, may, if the Lord Chancellor so authorises, be settled according to the like procedure, by a single arbitrator appointed by that judge, and the arbitrator so appointed shall, for the purposes of this Act, have all the powers of that judge. There are thus altogether four different tribunals before whom the parties can bring their dispute (i) The committee. (ii) An arbitrator of their own choosing. (iii) The county court judge. (iv) An arbitrator appointed by the county court judge with tbe consent of the Lord Chancellor. Of these four tribunals, neither the first nor second is likely to be much used, the committee for the reasons already given, and the arbitrator selected by the parties because it is very unlikely that the parties ever will agree on an arbitrator. For the arbitrator's fee has to be paid by some one, and the workman is nearly always impecunious ; if therefore the fee has to be paid by the employer, it is extremely unlikely that the workman would agree to have the matter settled by a man whose fee was being paid by the other side. There seems no reason why the parties should not always come to the county court, where, without the payment of any fee (see para. 13 of this schedule), they can get the service of a trained lawyer to decide their dispute. Within six months. Under the Workmen's Compensa- tion Act, 1897, the time was three months. Arbitrator agreed on by the parties. Unlike the arbitrator appointed by the judge, this arbitrator has no special powers conferred on him, neither those of a county court judge nor those conferred on arbitrators 238 THE WORKMEN'S COMPENSATION ACT, 1906 in other matters by the Arbitration Act, 1889. His position, therefore, is the same as that of a committee, and he cannot compel the attendance of witnesses nor the production of documents nor administer an oath. His powers and duties are the same as those of a committee (vide supra, p. 236). According to the procedure prescribed by rules of court. These rules, which are dated June, 1907, are set out in Appendix A. They apply to arbitrations held by the judge or by the arbitrator appointed by the judge, but not to the committee or to the arbitrator agreed on by the parties. In England. The power of a county court judge to appoint an arbitrator only extends to England. In Scotland the sheriff and in Ireland the county court judge or recorder have no such power and must in all cases make the award themselves. See para. 17 (c) of this schedule. Sched. ii. (4). (4) The Arbitration Act, 1889, shall not apply to any arbitration under this Act ; but a committee or an arbitrator may, if they or he think fit, submit any question of law for the decision of the judge of the county court, and the decision 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, or where he gives any decision or makes any order under this Act, shall be final, unless within the time and in accordance with the conditions prescribed by rules of the Supreme Court either party appeals to the Court of Appeal ; and the judge of the county court, or the arbitrator appointed by him, shall, for the purpose of pro- ceedings under this Act, have the same powers of procuring the attendance of witnesses and the SCHEDULE II 239 production of documents as if the proceedings were an action in the county court. This paragraph is very nearly the same as the corre- sponding one in the old Act. There are two differences. Firstly, it is made clear that a committee can submit a point of law to a county court judge ; and secondly, the right of appealing direct to the Court of Appeal is ex- tended to all cases. Under the old Act it was only from a decision in an arbitration i.e., from the award that the appeal went straight to the Court of Appeal. In other matters the appeal was to the Divisional Court. Now the words are added, " where he gives any decision or makes any order under this Act," which have the effect of making the Court of Appeal the right tribunal to appeal to in all cases. The Arbitration Act gives to arbitrators the power to state a case for the Divisional Court, and as that Act does not apply here, the committee or arbitrator are given an alternative power to state a case for the county court judge. The committee or arbitrator have to use their discretion as to whether or not they will state a case. If it could be shown that they had not exercised a judicial discretion it might be possible to obtain a mandamus compelling them to state a case (see E. v. Evans, 62 L.T. 570, and R. v. Justices of Southampton, 96 L.T. 697). The decision of the judge on any question of law. There is thus no appeal on a question of fact from any of the four possible tribunals. On this point see the remarks of A. L. Smith, L.J., in Smith v. Lancashire and Yorkshire Eailway ([1899], 1 Q.B. 141). From the decision of the county court judge on a point of law there is an appeal as of right to the Court of Appeal, whether the point of law comes before the county court judge as a case stated by a committee or either kind of arbitrator, or whether it arises in an arbitration conducted by the judge himself. 240 THE WORKMEN'S COMPENSATION ACT, 1906 Court of Appeal. The procedure on such appeals is governed in England by Eules of the Supreme Court, 0. Iviii. Kule 20, and in Ireland by Eules of the Supreme Court (Ireland) 0. Iviii. Rule 24. The paragraph does not apply to Scotland. Under the Workmen's Compensation Act, 1897, it was held that appeals from orders which were not awards lay to the Divisional Court. Thus an appeal against the refusal of a county court judge to direct a review of a taxation of costs had to be to the Divisional Court (Bigby v. Cox [1904], 1 K.B. 358 ; Keane v. Nash, 88 L.T. 790). Similarly with an appeal from a decision of the county court judge directing payments by insurers under sec. 5 of the Workmen's Compensation Act, 1897 (Kniveton v. Northern Employers' Company [1902], 1 K.B. 880 ; Morris v. Northern Employers' Company [1902], 2 K.B. 165 ; Leach v. Life and Health Insurance Association [1901], 1 K.B. 707). So also in Welland v. Great Western Railway (16 T.L.E. 297) it was held that an application which amounted to a request for a manda- mus to a county court judge to do his duty could not be made to the Court of Appeal. And in the same way it was held in Scotland in Cochrane v. Trail (38 S.L.R. 18) that in dealing with an application for a warrant to register an agreement under the provisions of the Workmen's Compensation Act, 1897, the sheriff is not acting as an arbitrator and so it was not possible to bring up his decision to the Court of Session (but see Williams v. Army and Navy Auxiliary Co-operative Society, 23 T.L.E. 408). But all these rather purposeless distinctions have now been swept away by the inclusion in this section of the words " or where he gives any decision or makes any order under this Act," which are sufficiently wide, it is sub- mitted, to give to the Court of Appeal jurisdiction to hear all appeals under this Act. If the arbitrator or committee in the exercise of their discretion refuse to state a case, there is no means SCHEDULE II 241 of appealing at all (see Gibson v. Wormald and Walker [1904], 2 K.B. 40). The procedure on appeal from the Court of Appeal to the House of Lords is as in ordinary cases. Under the old Act there was no appeal in Scotch cases from the Court of Session to the House of Lords (Osborne v. Barclay [1901], A.C. 269), but such an appeal is expressly given in this Act by para. 17 (6) of this schedule (q.v.). It should be noticed that neither the Court of Appeal nor the House of Lords has any power to assess compensation (Stuart v. Nixon [1901], A.C. 79). Security for Costs of an Appeal. This question has been much discussed in the Court of Appeal, and in nearly all cases of appeal by workmen security is ordered, the amount varying from 10 to 15. It was first decided in Hall v. Snowdon ([1899], 1 Q.B. 593) that the ordinary rule of the Court of Appeal as to ordering security for the costs of an appeal was applicable to appeals under the Workmen's Compen- sation Act, 1897. And in the same year it was held in McLaughlin v. Clayton (the Times, February 28, 1899) that the fact that the case is conducted on behalf of the workman by a trades union does not alter the rule. And even if the trades union has paid the costs of the arbitration below security will be ordered (see Haddock v. Humphries, the Times, August 1, 1899). In Harwood v. Abrahams ([1901], 2 K.B. 304) it was argued that, as the appeal from the arbitrator was in effect an application for a new trial, and as the practice of the Court of Appeal is not to order security for costs in applications for new trials, no security should be ordered, but the Court overruled this contention. In Skeggs v. Keen (the Times, May 16, 1899) the workman, although he was not in a position to make an affidavit asking to be pauperised, was yet in a state of great poverty as a result of the accident, and it was 16 242 THE WORKMEN'S COMPENSATION ACT, 1906 held that in these special circumstances no security should be ordered. But in Eees v. Richards (the Times, August 8, 1899) security was ordered where the circumstances were the same as in SJceggs v. Keen, except that it was not alleged that the workman's poverty was due to the accident. In Huball v. Everitt (16 T.L.E. 168) a stay of execution had been granted by the county court judge and a point of law was raised by somewhat special circumstances, and the Court treated the case as exceptional and ordered no security. But in Shea v. Drolenvaux (88 L.T. 679), where a stay of execution had been granted, but there were no special circumstances, the Court of Appeal made the usual order for security for costs, and expressly laid it down that the mere fact that the county court judge has granted a stay of execution is not by itself sufficient reason for dispensing with security for costs. In Stanland v. North Eastern Steel Company (23 T.L.B. 1) it was held, following the Constantine (4 P.D. 156), that it is the duty of the respondent to ask the appellant to give security before making an application to the Court, so as to save costs. An appeal is made by an eight days' notice of motion. In the case of a final appeal the notice must be given within three months, and in an interlocutory appeal within fourteen days of the award or order appealed against. It has been held in Isaacson v. New Grand (Clapham Junction), Ltd. ([1903], 1 KB. 539) that, in an action under the Employers' Liability Act, 1880, in which the workman was unsuccessful, the mere fact that an appli- cation is made by the workman to have compensation assessed under sec. 1, subsec. 4, of the Workmen's Com- pensation Act, 1897, is not such an election of remedies as to prevent him from appealing. But it is otherwise if compensation has actually been assessed (Neale v. Electric Company [1906], 2 K.B. 558). SCHEDULE II 243 The judge of the county court . . . action in the county court. As these arbitrations are not actions and as the Arbitration Act does not apply, there would, apart from this section, be no power in the judge or arbitrator to compel the attendance of witnesses or the production of documents. As it is, this section only applies to the county court judge and the arbitrator appointed by him, and no such powers are given to a committee or an arbitrator agreed on by the parties. (5) A judge of county courts may, if he thinks sched. n. (5) fit, summon a medical referee to sit with him as an assessor. This is new law and should be useful, particularly in cases where it is important to know how long the in- capacity is likely to last as, for instance, where an application is made by the employer under para. 17 of Sched. I. for the commutation of the payments by a lump sum and the incapacity is not permanent. It should be noticed that the provision only applies to a county court judge, and not to a committee or either sort of arbitrator. It is not quite clear why this distinction has been made. Medical referees are appointed by the Home Secretary under the powers given him by sec. 10 of the Act. For their powers and duties see that sec. and para. 15 of Sched. I. and para. 15 of this schedule, and see also Appendices E & G. An application that a medical referee be summoned may be made by either party eight days before the hearing (Rule 52). (6) Kules of court may make provision for the Sched. n. (6). appearance in any arbitration under this Act of any party by some other person. This is reproduced from the Workmen's Compensation Act, 1897. The rule dealing with the matter is Eule 33 q.v., p. 293) ; any party may appear as of right 244 THE WORKMEN'S COMPENSATION ACT, 1906 (a) in person, (6) by a solicitor, (c) by counsel ; and, by leave of the judge or arbitrator, he may appear (d) by a member of his family, (e) by a person in his exclusive and permanent employ ; (/) in the case of a company or corporation, by any director of the company or corporation, or by the secretary or any other officer or any person in the permanent and exclusive employment of the company or corporation ; (g) by any officer or member of any society or other body of persons of which such party is a member or with which he is connected ; or (h) under special circumstances, by any other person. The second clause of the rule provides that no person other than a solicitor can recover any fee for his services other than his expenses. The rules of court only apply to arbitrations before the county court judge and the arbitrator appointed by him. So that in arbitrations before a committee or an arbitrator agreed on by the parties, the committee or arbitrator, as the case may be, have a free hand in deciding whom they will hear. Sched. ii. (7). (7) The costs of and incidental to the arbitration and proceedings connected therewith shall be in the discretion of the committee, arbitrator, or judge of the county court, subject as respects such judge and an arbitrator appointed by him to rules of court. The costs, whether before a committee or an arbi- trator or in the county court, shall not exceed the limit prescribed by rules of court, and shall be taxed in manner prescribed by those rules and such taxation may be reviewed by the judge of the county court. SCHEDULE II 245 This paragraph differs in three respects from the corre- sponding one in the Workmen's Compensation Act, 1897. Firstly, the old Act made no mention of the com- mittee, and of its power to award costs. This makes no substantive difference in the law, as it is clear that a committee which was properly seised of an arbitration had power to deal with the costs of it. Secondly, the old Act gives no express power to the judge to review the taxation of costs. When he himself sat as arbitrator there is no doubt that he had such power as part of his inherent jurisdiction as county court judge ; and in the case of an arbitrator appointed by the judge the arbitrator would apparently have had such power by virtue of para. 3 of this schedule, which gave him all the powers of a judge. But there was formerly no means by which a review of a taxation by a committee or " agreed " arbitrator could be had, and to that extent the paragraph is new law. Thirdly, under the old Act the amount to be awarded as costs by the committee or * agreed ' arbitrator was not subject to any limit, but now it must not exceed the maximum prescribed by the rules of court. The rule dealing with costs is Rule 61, which is set out at p. 312. It will be noticed that the costs have to be taxed in accordance with the county court scales, and that where the subject-matter of the arbitration is not a capital sum i.e., is a weekly payment the arbitrator has to fix its capital value for the purpose of deciding which scale is to apply. The county court scale of costs is set out in Appendix K. No form of procedure is laid down in the Act or the rules for the conduct of a review of taxation. But Rule 80 says that the ordinary county court procedure is to apply in matters not otherwise specially provided for. So such a review would be governed by the county court rules. The discretion of an arbitrator in awarding the costs must be exercised in a judicial manner (see per Jessel, M.R., in re Taylor, 4 C.D. at p. 159). In Welland v. 246 THE WORKMEN'S COMPENSATION ACT, 1906 Great Western Eailway Company (16 T.L.K. 297) it was held that an arbitrator could award a lump sum for costs ; but now presumably such a sum would be subject to taxa- tion. The same case decides that in fixing the amount of the costs the arbitrator may take into consideration any offer of compensation which has been made. And this decision has now been incorporated in the rules (Rule 61 (3), p. 313). In Jones v. Great Central Eailway (4 W.C.C. 23) it was held that the arbitrator has no power to make a successful party pay his opponent's costs. But where an unsuccessful action has been brought by a workman under the Employers' Liability Act, 1880, and compensation has been assessed in accordance with sec. 1, subsec. 4, of the Act, the arbitrator has power to give the workman the costs of the proceedings (Cattemole v. Atlantic Transport Company [1902], 1 KB. 204). It has been held in Eigby v. Cox ([1904], 2 K.B. 208) that a general rule of a county court to treat applications under Sched. I. para 16 to review awards as interlocutory applications is bad. It was decided in Scotland in Eosewell Gas Coal Company v. M' 'Vicar (7 F. 290) that the employer cannot set off against the compensation costs awarded him on an application to review. Para. 14 of this schedule and Eule 65 must be read in conjunction with this section. By them the arbitrator is empowered to order that the costs of a workman's solicitor shall be a lien on the amount awarded as com- pensation (see post, p. 259). Sched. ii. (8). (8) In the case of the death or refusal or inability to act, of an arbitrator, the judge of the county court may, on the application of any party, appoint a new arbitrator. Under the old Act the power of appointing a new arbitrator was vested in the judges of the High Court. This was somewhat anomalous, and the present section is more consonant with the general spirit of the Act. SCHEDULE II 247 Some such provision as this is necessary in the case of an " agreed " arbitrator ; for a submission to arbitration can only be withdrawn by agreement, so that if the arbitrator refused to act and no such agreement was come to, there would be a deadlock. Rule 40 governs the procedure in applications for the appointment of a new arbitrator. An application in writing must be made to the judge in the form prescribed (Form 34, q.v., p. 384) to fix a time and place for the hearing. When this has been fixed the registrar issues a summons to the applicant, which the applicant has to serve on the other party. (9) Where the amount of compensation under sched. n. (9). this Act has been ascertained, or any weekly payment varied, or any other matter decided under this Act, either by a committee or by an arbitrator or by agreement, a memorandum thereof shall be sent, in manner prescribed by rules of court, by the committee or arbitrator, or by any party interested, to the registrar of the county court, who shall, subject to such rules, on being satisfied as to its genuineness, record such memorandum in a special register without fee, and thereupon the memorandum shall for all purposes be enforceable as a county court judgment. Provided that (a) No such memorandum shall be recorded before seven days after the despatch by the registrar of notice to the parties interested; and (b) where a workman seeks to record a memo- randum of agreement between his employer 248 THE WORKMEN'S COMPENSATION ACT, 1906 and himself for the payment of compensa- tion under this Act and bhe employer, in accordance with rules of court, proves that the workman has in fact returned to work and is earning the same wages as he did before the accident, and objects to the re- cording of such memorandum, the memoran- dum shall only be recorded, if at all, on such terms as the judge of the county court, under the circumstances, may think just ; and (c) the judge of the county court may at any time rectify the register; and (d) where it appears to the registrar of the county court, on any information which he considers sufficient, that an agreement as to the redemption of a weekly payment by a lump sum, or an agreement as to the amount of compensation payable to a person under any legal disability, or to dependants, ought not to be registered by reason of the in- adequacy of the sum or amount, or by reason of the agreement having been obtained by fraud or undue influence or other improper means, he may refuse to record the memo- randum of the agreement sent to him for registration, and refer the matter to the judge, who shall, in accordance with rules of court, make such order (including an order as to any sum already paid under the agree- ment) as under the circumstances he may think just; and SCHEDULE II 249 (e) the judge may, within six months after a memorandum of an agreement as to the re- demption of a weekly payment by a lump sum, or of an agreement as to the amount of compensation payable to a person under any legal disability, or to dependants, has been recorded in the register, order that the record be removed from the register on proof to his satisfaction that the agreement was obtained by fraud or undue influence or other improper means, and may make such order (including an order as to any sum already paid under the agreement) as under the cir- cumstances he may think just. All the provisos to this paragraph except (c) are new, but the first part of the paragraph is the same as the corresponding one in the Workmen's Compensation Act, 1897, except that the directions in the old Act pointing out in which county court the memorandum is to be registered are here omitted, as this is provided for by the general directions in para. 11 of this schedule. The scheme of this paragraph is as follows. A memorandum has to be registered when (a) the amount of compensation has been ascertained ; (b) the amount of a weekly payment has been varied ; or (c) any other matter has been decided under this Act. But there need be no memorandum of any matter decided by the county court judge, but only of matters decided by (i) a committee; (ii) an arbitrator agreed on by the parties ; (iii) an arbitrator appointed by the judge ; or (iv) agreement. Such memorandum is to be sent, in the manner pre- scribed by the rules, by 250 THE WORKMEN'S COMPENSATION ACT, 1906 (i) the committee ; or (ii) the arbitrator; or (iii) any party interested; to the registrar of the county court. The registrar, on being satisfied of its genuineness and subject also to the rules, has then to record such memorandum in a special register kept for the purpose. On his so doing, the memorandum becomes enforce- able as a county court judgment. It will be seen that, apart from the provisos, the only ground on which a registrar can refuse to record a memorandum is that he is not satisfied of its genuine- ness ; and under the old Act this was the only ground on which he could refuse (see Colville v. Tighe, 8 F. 179 ; and Macdonald v. Fairfield Shipbuilding and Engineer- ing Company, 8 F. 8). But now by provisos (6) and (d) two further grounds are added. Proviso (6) deals with the case where a workman seeks to record a memorandum after returning to work and when he is earning the same wages as before the accident. If the employer objects, the matter must be referred to the judge, who may either refuse to allow the memo- randum to be recorded or may only allow it to be recorded subject to terms. Proviso (d) enables the registrar to refuse to register an agreement if he considers (a) that the sum agreed on is inadequate, or (6) that the agreement has been obtained by fraud or undue influence or other improper means. This only applies to (i) agreements for the redemption of weekly payments by a lump sum, and (ii) agreements as to the amount of compensation pay- able to persons under legal disability or to depen- dants. If he so refuses, he refers the matter to the judge, who, in accordance with rules of court, may make such order as he thinks just. SCHEDULE II 251 On receiving a memorandum to be registered the registrar has to send notice to the parties interested, and by proviso (a) the memorandum may not be recorded until seven days after the despatch of such notice. Provisos (c) and (e) give powers to the judge with regard to the register. By (c) he may at any time rectify it. (e) deals with a case where a memorandum has already been recorded. It applies, like (d), only to the cases of (i) agreements as to the redemption of a weekly pay- ment by a lump sum, and (ii) agreements as to the amount of compensation pay- able to persons under any legal disability or to depen- dants. It gives power to the judge to order the record of such an agreement to be removed from the register on its being proved to his satisfaction that it was obtained by fraud or undue influence or other improper means. Amount of compensation. It often happens that the workman is earning as much at the time of the arbitra- tion as he was before the accident, but it is desired to make an award so as to keep the employer's liability alive, in case the workman's earning power should decrease. In such cases either of two courses may be followed ; the arbitrator may make an award declaring the liability, but adjourning the amount, as was done in Chandler v. Smith ([1899], 2 Q.B. 506) ; or he may make an award for a nominal sum of one penny a week, and the workman can subsequently apply for a " review " (see Irons v. Davis [1899], 2 Q.B. 330). Where the employer and workman come to an agreement under such circumstances, proviso (6) of this section applies. A memorandum thereof. An agreement to pay com- pensation can be the subject of a memorandum, whether it be in writing or be verbal or be implied (Jones v. Great Central Bailway, 4 W.C.C. 23; Cochrane v. Traill, 37 S.L.E. 662). It is not necessary to send a memorandum of an award to the registrar if the award itself be sent (Bailey v. Plant, No. 2, 17 T.L.E. 449). 252 THE WORKMEN'S COMPENSATION ACT, 1906 Shall be sent. There is no limit of time during which the memorandum must be sent (Cochrane v. Traill, 37 S.L.K. 662). Although in both Acts the imperative words " shall be sent " are used, yet under the old Act the only result of not sending a memorandum was that the advantages of having a county court judgment were not obtained. But this has now been altered in certain cases by para. 10 (infra, p. 255). Rules of court. The rules dealing with this section are Rules 41-49, which set out the procedure where a memo- randum has to be recorded in the register (see p. 301). Shall record. The fact that a request for arbitra- tion has been made by one of the parties is not a ground on which the registrar can refuse to record a memorandum (Jones v. Great Central Railway, 4 W.C.C. 23). And see also Gourlay v. Sweeney (8 F. 965). In that case the employer voluntarily paid the full amount for some weeks. He then threatened to stop the payments. The workman then applied for arbi- tration. It was held that the petition was incompetent ; for (i) there was no question between the parties, and (ii) the mere fact that there was no such agreement as could be registered did not show that there was a question. Under the old Act, the registrar could not refuse to register because the workman was no longer entitled to the agreed amount (Blake v. Midland Railway Company [1904], 1 K.B. 503 ; Cammick v. Glasgow Iron and Steel Company, 4 F. 198 ; Dunlop v. Rankin, 4 F. 203). But proviso (b) has altered this in certain cases. Shall be enforceable. It has been held in Bailey v. Plant ([1901], 1 K.B. 31) that a committal order under the Debtors Act may be made on a judgment summons taken out to recover arrears of payment due under a registered agreement, and provision is now made in the rules (by Rule 68, p. 317) for the conduct of proceedings under the Debtors Act. Where any party liable to pay compensation or costs SCHEDULE II 253 under any memorandum has made default in payment, execution may issue against his goods without the leave of the Court. But where the sum in question is not payable into court the party applying for execution must satisfy the registrar by affidavit or otherwise as to the amount in payment of which default has been made. (See Kule 67, p. 316). Proviso (a). This gives to all parties interested an opportunity of coming forward and showing grounds why the memorandum should not be registered. Proviso (b). It was held under the old Act that the fact that the workman was no longer entitled to the agreed amount was not a ground on which the registrar could refuse to record a memorandum (Blake v. Midland Rail- way Company [1904], 1 K.B. 503; Cammick v. Glasgow Iron and Steel Company, 4 F. 198 ; Dunlop v. Rankin, 4 F. 203). This proviso only deals with one of the cases where the workman is no longer entitled to the agreed amount, viz., where he has returned to work and is earning the same wages as before the accident. In all other cases e.g., if he has returned to work and is earning a less sum than before the law is unaltered and the registrar cannot refuse to record the memo- randum. But in this one case, where the man has returned to work and is earning the same wages as before the accident, the employer can insist on the matter being referred to the judge, who may make such order as he thinks fit. Returned to work apparently means to any work, and is not limited to work in the same grade or in the service of the same employer as before. Such terms as the judge may think just. In such cases justice would be done if the judge directed the registrar to record a memorandum of liability, and adjourned' the question of amount (see Irons v. Davis [1899], 2 Q.B. 330). Proviso (c) . There was a similar provision in the old Act. It has been held in England that an appeal lies from a county court judge who has directed or refused to direct 254 THE WORKMEN'S COMPENSATION ACT, 1906 any entry or rectification in the register (Johnston v. Mew, Langton & Co., 24 T.L.K. 175). Under the old Act such appeal was to the Divisional Court, but it would now be to the Court of Appeal (see para. 4 of this schedule). In Scotland it has been held that there is no appeal from any decision of the sheriff with regard to the register (Cochrane v. Traill, 3 E. 27; Binning v. Easton, 8 F. 407 ; Lockgelly Iron and Coal Company v. Sinclair [1907], S.C. 3; Hughes v. Thistle Chemical Company [1907], S.C. 607). Provisos (d) and (e). These provisions are intended to protect workmen who are ignorant of their rights or are otherwise imposed upon. They only apply in two cases, viz. (i) where there is an agreement as to the redemption of a weekly payment by a lump sum ; and (ii) where there is an agreement as to the amount of compensation payable to a person under any legal disability or to dependants. In either of these cases the registrar, if he considers (a) that the amount is insufficient, or (&) that the agree- ment was obtained by fraud, undue influence, or other improper means, may by proviso (d) refer the matter to the judge, who may make such order as he thinks fit. In either of these cases, if the agreement has actually been registered, the judge may, by proviso (e), order it to be expunged from the register if he considers it was obtained by fraud, undue influence, or other improper means (but not because of the inadequacy of the amount). But this can only be done within six months of the date of registration. The effect of so dealing with a registered agreement or an application to register an agreement is dealt with in the next paragraph. The judge is not given power to order the payment of a greater amount than is provided for by the agreement, but only to refuse to the party asking for it the benefits of registration. But no doubt in practice a judge is able to offer to register a juster SCHEDULE II 255 agreement than the one before him if the parties choose to enter into it. (10) An agreement as to the redemption of a Sched. i.(io). weekly payment by a lump sum if not registered in accordance with this Act shall not, nor shall the payment of the sum payable under the agree- ment, exempt the person by whom the weekly payment is payable from liability to continue to make that weekly payment, and an agreement as to the amount of compensation to be paid to a person under a legal disability or to depen- dants, if not so registered, shall not, nor shall the payment of the sum payable under the agreement, exempt the person by whom the compensation is payable from liability to pay compensation, unless, in either case, he proves that the failure to register was not due to any neglect or default on his part. This paragraph is new, and must be read in con- junction with provisos (d) and (e) of para. 9. Under the old Act there was no penalty for neglecting to register a memorandum of agreement except that it did not acquire the force of a county court judgment. Under this Act it is not only through neglect that a memorandum may not be registered, but, as a result of the provisos to para. 9 of this schedule, the judge or registrar may refuse to register it for a number of different reasons (see p. 247). It would therefore be absurd if no real penalty attached to such refusal. Two classes of agreements are dealt with in this paragraph 1. Agreements for the redemption of a weekly payment by a lump sum. It is provided that so long as such an agreement is not registered, neither the agreement nor 256 THE WORKMEN'S COMPENSATION ACT, 1906 payment in pursuance of it shall exempt the person liable from continuing to make the weekly payments. From this it would appear that any sum paid under such an agreement would be simply thrown away by the employer ; it would seem more reasonable if such sum could be taken into account in fixing the future weekly payments, but such is apparently not the law. 2. Agreements as to the amount of compensation to be paid to a person under a legal disability or to dependants. It is provided that, so long as such an agreement is not registered, neither the agreement nor payment in pursuance of it shall exempt the person liable from the liability to pay compensation. It would appear that in this case also any sum paid under such an agreement would be thrown away, and the employer would still be liable to pay the full amount of compensation. In agreements outside these two clauses as, e.g., an agreement to pay a weekly sum to a workman sui juris the old law still applies, and the only effect of non- registration is that the agreement has not the force of a judgment, and therefore must be sued on before it can be enforced. There is apparently no limit of time during which the memorandum must be sent to the registrar for registra- tion (see Cochrane v. Trail!, 37 S.L.E. 662). Sched.iL(ii). (11) When any matter under this Act is to be done in a county court, or by, to, or before the judge or registrar of a county court, then, unless the contrary intention appear, the same shall, subject to rules of court, be done in or by, to or before the judge or registrar of the county court of the district in which all the parties concerned reside, or if they reside in different districts, the district prescribed by rules of court, without prejudice to any transfer in manner provided by rules of court. SCHEDULE II 257 This is almost identical with para. 9 of the second schedule of the Workmen's Compensation Act, 1897, except that here " the district prescribed by rules of court " takes the place of " the district where the accident happened." This change was necessary to meet the cases of industrial diseases, and of accidents happening at sea, to which the old words are inapplicable. The rule dealing with this matter is Rule 73 (see p. 319). Contrary intention. In the old Act a "contrary intention " appeared in para. 8 (dealing with the registra- tion of memoranda), but in this Act it is believed that no such " contrary intention " appears anywhere. District. In E. v. Owen ([1902], 2 KB. 436) it was held that, where a workman resident in England is injured by an accident occurring in England, but his employer resides in Scotland, proceedings for compensation under the Workmen's Compensation Act may be taken in the county court of the district in which the accident occurred, and service of the necessary notices may be effected by registered post. In that case it was con- tended that as the employer did not reside in the district of any county court but in that of a sheriff court, the section could not apply and there was no court in which proceedings could be taken; but this contention was overruled. Without prejudice to any transfer. The transfer of proceedings from one county court to another is provided for by Eule 75 (see p. 320). (12) The duty of a judge of county courts under Sched.n.(i2). this Act, or in England of an arbitrator appointed by him, shall, subject to rules of court, be part of the duties of the county court, and the officers of the court shall act accordingly, and rules of court may be made both for any purpose for which this Act authorises rules of court to be made, and also generally for carrying into effect 17 258 THE WORKMEN'S COMPENSATION ACT, 1906 this Act so far as it affects the county court, or an arbitrator appointed by the judge of the county court, and proceedings in the county court or before any such arbitrator, and such rules may, in England, be made by the five judges of county courts appointed for the making of rules under section one hundred and sixty-four of the County Courts Act, 1888, and when allowed by the Lord Chancellor, as provided by that section, shall have full effect without any further consent. This paragraph only differs from the corresponding one in the old Act in that the words "in England" have been inserted before " of an arbitrator." As it is only in England that the judge has this power of appointing arbitrators, the addition seems unnecessary. Rules of Court. These were published June 1, 1907, and are set out in Appendix A. Amendments to the original Rules were published on March 14, 1908, and are set out in Appendix J. The rules are to govern the general procedure before a judge or an arbitrator appointed by him ; but they only apply to proceedings before a committee or " agreed " arbitrator in matters in respect of which this Act authorises rules to be made. The only case in which the Act does so authorise rules to be made which shall apply to a committee or agreed arbitrator is under para. 9 of this schedule (dealing with memoranda of awards, ante, p. 247). sched.n.(i3). (13) No court fee, except such as may be pre- scribed under paragraph 15 of the first schedule to this Act, shall be payable by any party in respect of any proceedings by or against a workman under this Act in the court prior to the award. SCHEDULE II 259 This is the same as the corresponding paragraph of the old Act, save that the exception as to a fee payable under Sched. I. para. 15 is new. Para. 15 of Sched. I. enacts that where a workman has been examined by a medical practitioner, and the employer and workman are unable to come to an agreement as to the workman's fitness for employment, then, on the application of either of them and on the payment by the applicant of a fee not to exceed 1, the registrar may refer the matter to a medical referee (see ante, p. 222). The question was discussed under the old Act whether this paragraph meant that for all matters prior to the award the services of the county court were gratuitous or whether it merely meant that all payments of fees were postponed until after the award. The former view seems to be the natural construction of the words used, and has been adopted by the Rule Committee, and has been generally acted on. The policy of this paragraph has been much criticised, and it has been pointed out that, although the parties to compensation arbitrations are not on the whole poorer than other county court litigants, they are treated as a privileged class, and in effect the other litigants are paying fees of which these parties reap the benefit. Under the old Act it could be said that if a workman could not get into court without paying fees, he would be more likely to accept an agreement offering him an inadequate sum as compensation. But the provisions of this Act as to registration take away much of the force from this argument ; and it is the general opinion that there is not sufficient reason for the litigants under this Act being placed in an exceptional position. Court fees may be charged for any proceedings which are taken subsequent to the award ; and regulations as to such fees have been made by the Treasury, dated May 30, 1907 (see Appendix C). (14) Any sum awarded as compensation shall, Sched.n.(i4). 260 THE WORKMEN'S COMPENSATION ACT, 1906 unless paid into court under this Act, be paid on the receipt of the person to whom it is payable under any agreement or award, and the solicitor or agent of a person claiming compensation under this Act shall not be entitled to recover from him any costs in respect of any proceedings in an arbitration under this Act, or to claim a lien in respect of such costs on, or deduct such costs from, the sum awarded or agreed as compensation, except such sum as may be awarded by the com- mittee, the arbitrator, or the judge of the county court, on an application made either by the person claiming compensation, or by his solicitor or agent, to determine the amount of costs to be paid to the solicitor or agent, such sum to be awarded subject to taxation and to the scale of costs prescribed by rules of court. This paragraph deals with two distinct matters. Firstly, with the application of the compensation money. It directs that, except in cases where it has to be paid into court, the money shall be paid over on the receipt of the person entitled to it. This was probably so under the old Act, for it was held in Clatworthy v. Green (86 L.T. 702), that the employer has no right to insist on a widow taking out letters of administration to her deceased husband's estate before paying her the compensation. The money must be paid into court in the case of the workman's death (Sched. I. para. 5), and the Court may order that it be paid into court in the case of the recipient of a weekly payment being a person under any legal disability (Sched. I. para. 7). Secondly, with the question of the solicitor's or agent's costs. It directs that the solicitor or agent of a person claiming compensation shall not be entitled to a greater SCHEDULE II 261 sum by way of costs than shall be awarded to him by the committee, arbitrator, or judge as the case may be. Solicitor or agent. The rules direct that the costs shall be taxed on the county court scales. Therefore an agent could not get any profit costs, but only his out-of- pocket expenses. The county court scale of costs is set out in Appendix K. Of a person claiming compensation. This means either the workman or his dependants or the persons entitled to recover the expenses of his medical attendance and burial. It does not apply to the solicitor for the employer. A lien in respect of ... or deduct such costs. Eule 66 (p. 315) makes provisions for an order being obtained from the registrar by a solicitor or agent who is entitled to a lien or to deduct his costs from the compensation money. On an application made. The rule governing these applications is Eule 65 (p. 314). The application is made, if the matter has been decided by a committee, " agreed " arbitrator, or county court judge, to such committee, agreed arbitrator, or county court judge. If the matter has been decided by an arbitrator appointed by the county court judge, the application can be made at or immediately after the hearing to such arbitrator; but if the applica- tion is made at a later date, it must be made to the county court judge. If the amount of compensation has been agreed upon without arbitration the application must be made to the county court judge (see Rule 65, paras. 2, 3, and 4). Such sum to be awarded subject to taxation. In Welland v. Great Western Railway Company (16 T.L.E. 297) it was held that the arbitrator might award a lump sum as costs. The usual practice is for the tribunal to direct on what scale the costs shall be taxed. If a weekly sum is awarded it is the duty of the tribunal, or, failing it, the registrar, to fix the capital value of the sum awarded for the purposes of taxation (Eule 65, para. 9). 262 THE WORKMEN'S COMPENSATION ACT, 1906 Scale of costs prescribed by rules of court. Eule 65, para. 8, prescribes that the scale shall be the ordinary county court scale. See Appendix K. Sched. n.(i5). (15) Any committee, arbitrator, or judge may, subject to regulations made by the Secretary of State and the Treasury, submit to a medical referee for report any matter which seems material to any question arising in the arbitration. This is new and should be a useful provision. It should be read in conjunction with the other provisions as to medical referees (see sees. 8 and 10 of the Act, paras. 15 and 18 of Sched. I. and para. 5 of this schedule). The Treasury orders dealing with medical referees are set out in Appendices E & G. It has been held in Dowds v. Bennie & Sons (5 F. 268) that the report of a medical referee is not binding on the tribunal. It is otherwise with a certificate. Kule 82 deals with medical referees (p. 325). Sched. ii.(i6). (16) The Secretary of State may, by order, either unconditionally or subject to such condi- tions as he may think fit, confer on any com- mittee representative of an employer and his workmen as respects any matter in which the committee act as arbitrators, or which is settled by agreement submitted to and approved by the committee, all or any of the powers conferred by this Act exclusively on county courts or judges of county courts, and may by the order provide how and to whom the compensation money is to be paid in cases where, but for the order, the money would be required to be paid into court SCHEDULE II 263 and the order may exclude from the operation of provisos (d) and (e) of paragraph 9 of this schedule agreements submitted to and approved by the committee, and may contain such inci- dental, consequential, or supplemental provisions as may appear to the Secretary of State to be necessary or proper for the purposes of the order. This is a new provision and enables a committee in whose favour such an order has been made to conduct an arbitration in all respects as if the matter were being dealt with in the county court. Powers conferred exclusively on county courts or judges of county courts. The exclusive powers of a county court judge are (1) The power, in England, to appoint an arbitrator (Sched. II. para. 4). (2) The power to summon a medical referee to sit with the judge as assessor (Sched. II. para. 5). (3) The power to review a taxation of costs (Sched. II. para. 7). (4) The power to appoint a new arbitrator (Sched. II. para. 8). (5) The power, in the case of a memorandum of an agreement between employer and workman, where the workman has returned to work and is earning full wages, to refuse to allow such memorandum to be recorded (Sched. II. para. 9 (6)). (6) The power to rectify the register (Sched.. II. para. 9 (c)). (7) The powers under Sched. II. para. 9 (d) and (e), to refuse to register and to expunge from the register. (8) In addition to the above, all the duties of the registrar under the rules and under para. 9 of this schedule are " exclusive powers of the county court." 264 THE WORKMEN'S COMPENSATION ACT, 1906 Cases where but for the order the money would . . . be paid into court i.e., under paras. 5 and 7 of Sched. I. Some such direction was necessary, as the county court jurisdiction is excluded, and therefore there would be no proper method of dealing with the compensation money in cases within those paragraphs. The operation of provisos (d) and (e) of para. 9. Proviso (d) enables the registrar to refuse to record the memorandum of an agreement for the payment of a lump sum or for the payment of compensation to persons under disability or dependants if he considers such agreement has been unfairly obtained or is inadequate in amount. Proviso (e) enables the county court judge, within six months of the recording of any such memorandum, to expunge it from the register if he considers such agree- ment has been unfairly obtained (see p. 247). Sched. ii. (i?). (17) In the application of this schedule to Scotland (a) " County court judgment," as used in para. 9 of this schedule, means a recorded decree arbitral : (b) Any application to the Sheriff as arbitrator shall be heard, tried, and determined sum- marily in the manner provided by section fifty-two of the Sheriff Courts (Scotland) Act, 1876, save only that parties may be repre- sented 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 accord- ance with the conditions prescribed by act of sederunt to require the Sheriff to state a case on any question of law determined by him, and his decision thereon in such case IF. 'ERs CM SCHEDULE II 265 may be submitted to either division of the Court of Session, who may hear and deter- mine the same and remit to the Sheriff with instruction as to the judgment to be pro- nounced, and an appeal shall lie from either of such divisions to the House of Lords: (c) Paragraphs (3), (4), and (8) shall not apply. This only differs from the corresponding paragraph of the old Act in that an appeal to the House of Lords from the Court of Session is now expressly given. It had been held under the old Act that no such appeal lay (Osborne v. Barclay [1901], A.C. 269). The Sheriff Courts (Scotland) Act, 1876, 39 and 40 Vic. c. 70, sec. 52 : "In every case of an application, whether by appeal or petition, made to the Sheriff under an Act of Parliament which provides, or according to any practice in the Sheriff Court which allows, that the same shall be disposed of in a summary manner in the Sheriff Court without record of the defence or evidence, and without the judgment being subject to review, but which does not more particularly provide in what form the same shall be heard, tried, and determined, the application may be by petition in one of the forms as nearly as may be contained in Schedule A annexed to this Act, and the Sheriff shall appoint the application to be served and the parties to be heard at a diet to be fixed by him, and shall at that diet or at an adjourned diet summarily dispose of the matter after proof led when necessary, and hearing parties or their procurators thereon, and shall give his judgment in writing." Para. (3), (4), and (8) deal, inter alia, with the appointment of arbitrators by the county court judge. (18) In the application of this schedule to Schea.n.(i8). Ireland the expression " judge of the county 266 THE WORKMEN'S COMPENSATION ACT, 1906 court" shall include the recorder of any city or town, and an appeal shall lie from the Court of Appeal to the House of Lords. Under the old Act it never became necessary to decide whether an appeal lay to the House of Lords from the Court of Appeal in Ireland, but such an appeal is now expressly given. Para. (3) of this schedule cannot apply to Ireland. But apparently paras. (4) and (8) do apply. Para. (8) in its application to England deals with both kinds of arbitration ; but in Ireland of course it could only apply to an " agreed arbitration," as the county court judge has no power to appoint an arbitrator under para. (3). SCHEDULE III Description of Disease. Description of Process. Anthrax. Lead poisoning or its sequelae. Mercury poisoning or its sequelae. Phosphorus poisoning or its sequelae. Arsenic poisoning or its sequelae. Ankylostomiasis . Handling of wool, hair, bristles, hides, and skins. Any process involving the use of lead or its preparations or com- pounds. Any process involving the use of mercury or its preparations or compounds. Any process involving the use of phosphorus or its preparations or compounds. Any process involving the use of arsenic or its preparations or compounds. Mining. Where regulations or special rules made under any Act of Parliament for the protection of persons employed in any industry against the risk of contracting lead poisoning require some or all of the persons employed in certain processes specified in the regulations or special rules to be periodically examined by a certifying or other surgeon, then, in the application of this schedule to that industry, the expression " process" shall, unless the Sec- 26T 268 THE WORKMEN'S COMPENSATION ACT, 1906 retary of State otherwise directs, include only the processes so specified. This schedule refers to sec. 8 of the Act. Under that section the workman gets compensation if he contracts an "industrial disease" due to the nature of his employment. This schedule is referred to in sub- sec. 2, which enacts that if the employment is one of those mentioned in the second column of the schedule and the disease is one of those mentioned in the corre- sponding line in the first column, the disease shall be deemed to be due to the nature of the employment, unless the certifying surgeon certifies that in his opinion, or the employer proves as a fact that, such is not the case. Power is given to the Home Secretary to make orders extending this list of employments and diseases. One such order has already been issued (see Appendix L). If the workman die after suffering from the disease, the onus is on the dependants to prove that the disease was the cause of death (Haylett v. Vigor [1908], 2 KB. 837). APPENDICES APPENDIX A THE WORKMEN'S COMPENSATION RULES, 1907 EXPLANATORY MEMORANDUM These rules have been made under paragraph 12 of the second schedule to the Workmen's Compensation Act, 1906. They are based on the rules under the Acts of 1897 and 1900, as the new Act follows the lines of those Acts so far as proceedings for settling compensation are concerned ; but numerous additions and alterations are rendered necessary by the additions to and alterations in the law made by Act of 1906. Rules 1 to 9 follow Rules 1 to 10 of the former rules ; but Rule 8 is altered so as to provide, in accordance with the decision in Field v. Longden, 1902 1 K.B. 47, that arbitration shall not be requested unless a question has arisen, and that the question shall be stated in the request. Rule 10 reproduces Rule 1 of November, 1900, as to applications by employers for arbitration. Rules 11 cmd 12 follow Rules 11 and 12. Rules 13 to 15 reproduce Rules 13 to 15, but it is provided that service shall be effected 20 days before the hearing, so as to allow sufficient time for proceedings between service and hearing, especially third party proceedings. Rule 15, paragraph 6. It was held in Rex v. Owen, L.R. 1902, 2 K.B. 436, that where an accident occurs in England, but the employer resides in Scotland or Ireland, proceedings may be taken in the county court in England ; and in reply to the argument that there were no provisions for service out of the jurisdiction, the Court held that Rule 15 as to service by registered post met the difficulty. Channell, J., pointed out that this was probably by accident, and that the words were not intended to meet such a case ; but it was held that they did in fact meet it. Words are now added making the rule applicable in express terms to such a case. 271 272 THE WORKMEN'S COMPENSATION ACT, 1906 Hides 16 to 18 follow Rules 16 to 18 : clause (d) of paragraph 5 of Rule 18 is altered, so as to bring it into accordance with the County Court Rules, Order IX., Rule 13, paragraph 4 ; and paragraph 6, which is new, is taken from paragraph 5 of the same rule. Rules 19 to 26. The rules as to indemnity have been recast, as the Act provides that questions of indemnity between employers and contractors shall be settled by arbitration. Rules 19 to 23 therefore apply the County Court Rules as to third party procedure to such cases. Where an employer claims indemnity from a third party who is not a contractor with him, the Act provides that the question shall be settled by action, or, by consent of the parties, by arbitration ; and Rule 24 accordingly provides for the third party being brought in, so as to be bound by the result of the arbitration as between the work- man and the employer, but not as to his liability to indemnify the employer, unless the parties consent to have that question settled by arbitration. Rule 25 provides for third party procedure where the employer applies for arbitration. Rule 26 reproduces Rule 23 as to claims to indemnity by one respondent against another. It was held in Appleby v. Horseley Company, 68 L.J. Q.B. 894, that where a respondent intends to claim indemnity from another respondent he must give notice as provided by Rule 19. The word "shall" is accordingly substituted for " may" in paragraph 1 of Rule 26. Paragraph 2 of the old Rule 23 is omitted, as it does not necessarily follow that a sub -contractor who is liable to pay compensation is also liable to indemnify the principal ; the accident may have been caused under circumstances giving him a claim to be indemnified by the principal. Rule 27 follows Rule 24. Rule 25 of the old Rules is transposed, so as to put all the provisions as to medical referees together. Rules 28 to 32 reproduce Rules 26 to 30. The last paragraph of Rule 29 is altered, as the new Act provides that the judge of the County Court, and not the High Court as in the Act of 1897, shall appoint a new arbitrator in case of death, &c. Rule 31 of the old Rules has been omitted as unnecessary. Rule 33 reproduces Rule 32. Rules 33, 34, and 34A of the old Rules, as to costs, have been transposed. APPENDIX A 273 Rule 34 reproduces Rule 85, but provides that the judge shall take a note of any point of law, without being requested to do so, as the Court of Appeal have experienced difficulties in ascertaining what has actually been decided in cases in which notes have not been taken. Rules 36 and 37 of the old Rules, as to appeals, have been transposed. Rule 35 deals with proceedings against insurers, as to which the new Act makes provisions differing from those in the Act of 1897. Section 5 of the Act provides that the rights of a bankrupt employer against insurers in respect of his liability to a workman shall vest in the workman, and that the insurers shall have the same rights and be subject to the same liabilities as the employer, but only to the extent of their liability to the employer. Paragraph 2 provides for examination of a bankrupt employer as to his contracts with insurers, reproducing Rule 58 of the old Rules. Rule 36 makes special provisions as to masters, seamen, apprentices, and pilots, who are brought within the Act by section 7. It also provides for the name in which the owners of a ship may be sued, and for the service of documents. Rule 37 provides for the detention of foreign ships under section 11. This clause is a repetition, as to cases of compensation under the Act, of the Shipowners' Negligence (Remedies) Act, 1905, 5 Edw. c. 10, which applies to cases of injuries caused by negligence. It is there- fore provided that applications shall be made under the Rules under that Act. No such rules have yet been made, and pending the issue thereof Rule 37 provides how applications shall be made ; providing that an application may be made, as enacted in section 11, to any Court; that the judge may require an undertaking as to damages before granting an application ; and that, while an application may be made ex parte, the applicant shall where practicable give notice to the agent or solicitor of the owners of the ship, and that the judge may accept a solicitor's undertaking to give security instead of making an order for detention ; such undertaking to be enforceable by attachment, as in Admiralty actions. Rule 38. The Shipowners' Negligence (Remedies) Act, 1905, enables an employer who has paid compensation or has had a claim made on him under the Workmen's Compensation Act, and who claims to be indemnified by the owners of a foreign ship, to obtain an order of detention under that Act. The Workmen's Compensation Act does not contain a corresponding provision ; but Rule 38 provides for applications for such orders. Rule 39 contains special provisions as to proceedings in case of injuries caused by industrial diseases. 18 274 THE WORKMEN'S COMPENSATION ACT, 1906 Eule 40 is framed on the view that paragraph 8 of schedule 1 to the Act applies to the appointment of an arbitrator by the judge on the death, etc., of an arbitrator agreed on by the parties. It is taken from a former County Court Eule as to the appointment of arbitrators under the Agricultural Holdings Act. Rules 41 to 48 are founded on the old Eules 38 to 45 as to the record of agreements and awards in the county court register ; but they are considerably altered in detail, in consequence of the new pro- visions contained in paragraph 9 of the second schedule to the Act as to notice to the parties interested before a memorandum is recorded, and objections by employers to the recording of agreements where injured workmen have returned to work. Rule 49 regulates the procedure where the registrar refers a memo- randum of an agreement to the judge under paragraph 9 of the second schedule, and provides that the registrar may make inquiries as to whether agreements presented for registration are such as should be recorded. Rule 50 regulates the procedure for the removal of an agreement from the register under paragraph 9 of the second schedule. Rules 46 and 47 of the old Rules, as to costs of solicitors or agents, have been transposed. Rule 51 reproduces the old Rule 48. Rule 52 provides for the summoning'of medical referees as assessors under paragraph 5 of the second schedule. It is based on the County Court Rules as to summoning assessors in ordinary actions. Rule 53 reproduces the old Rule 25 as to references to medical referees. Rule 54 deals with references to medical referees under paragraph 15 of the first schedule. Rules 49, 49A., and 49v of the existing Rules are transposed. Rule 55 regulates applications for suspension of the right to com- pensation, or to take proceedings, where a workman refuses to submit to examination. It is based on Rule 50 of the old Rules. Rules 51 to 58 of the old Rules are omitted, the provisions as to insurers having been altered by the new Act. Rule 56 deals with payment into court and investments, &c., of money payable in case of death under paragraph 5 of schedule 1. It is based on the old Rule 59. Paragraph 10 provides for the payment of weekly or other periodical payments by post ; it is based on the County Court Rules, Order IX., Rule 22. Rule 57 deals with payment of weekly sums payable to persons under disability into court under paragraph 7 of schedule 1. APPENDIX A 275 Rule 58 regulates the procedure on applications for the variation of orders under paragraph 9 of schedule 1. Rule 59 deals with the investment and application of lump sums payable in redemption of weekly payments under paragraph 17 of schedule 1. Rule 60 deals with the subject of weekly payments to workmen who cease to reside in the United Kingdom. The original proposal in the Bill was that such workmen should, if the incapacity was permanent, receive a lump sum ; but it is now provided that they shall be entitled to their weekly payments, on proof of identity and continuance of dis- ability, in accordance with rules of court. The rule, therefore, pro- vides how a certificate of incapacity is to be obtained from a medical referee ; and then provides that a copy of the certificate, and a certi- ficate of identity, shall be given to the workman, and that he shall forward every three months to the registrar certificates of continuance of incapacity and of identity, verified by declaration before a person authorised to administer oaths in the place where the workman resides. Rules 61 to 64 deal with costs, and reproduce 33, 34, and 34A, of the old Eules. Rules 65 and 66 reproduce Rules 46 and 47 as to the costs of solicitors or agents acting for parties claiming compensation. Rules 67 to 69 reproduce Rules 49, 49A, and 49s, as to proceedings for the enforcement of awards by execution, judgment summons, or otherwise ; and contain special provisions applicable to the case of partners. Rule 70 is new. Paragraph 1 is in accordance with the decision in Mountain v. Parr, L.R. 1899, 1 Q.B. 805, that a new trial cannot be granted in an arbitration. But there ought to be power, where an award or order has been obtained by fraud or improper means, or a person who is not really a dependant has been awarded compensation, or a person who is a dependant has been excluded, to re-open the matter ; and as paragraph 9 of the second schedule gives such power where an agreement has been improperly obtained, while section 11 of the Arbitration Act of 1889 gives the High Court power to set aside an award improperly obtained, paragraph 2 of Rule 70 gives a like power to the judge to set aside an award obtained by fraud or improper means ; paragraph 3 providing how application shall be made, while paragraph 4 limits the time for application, the time being taken from schedule 2, paragraph 9 (e), and section 2 (1) (6) of the Act. Rules 71 and 72 reproduce Rules 36 and 37 as to appeals. 276 THE WORKMEN'S COMPENSATION ACT, 1906 Rule 73 prescribes the courts in which proceedings may be taken, in accordance with paragraph 11 of schedule 2. Rules 74 and 75 correspond with the existing Eules 60 and 61. Ride 76 provides for the transfer of money from one court to another, under paragraph 6 of the first schedule or otherwise. Rules 77 and 78 reproduce Eules 62 and 63. Rule 79 provides who shall be made a party as representing the Crown in cases arising out of accidents to workmen in the service of the Crown, and for the service of documents in such cases. Rules 80 and 81 reproduce Eules 64 and 65. Rule 82 provides that references to medical referees shall be made in accordance with regulations made by the Secretary of State and the Treasury; that such regulations shall have effect as rules of court ; that registrars shall act in accordance with any regulations as made requiring references under paragraph (f) of sub-section 1 of section 8 to be made through the county court ; and that the registrar shall keep and forward records of references to medical referees in accordance with such regulations. Rules 83 and 84 reproduce Eules 66 and 67. The forms have been revised and re-arranged, and many new ones added : the principal points to be noted are (1) that the forms of request are altered, and require the ques- tions which have arisen to be stated ; and (2) that the form of award in case of death provides that the judge may order sums apportioned to a widow to be invested and paid out to her in weekly or other periodical pay- ments, as contemplated by paragraphs 5 and 9 of the first schedule, instead of being paid to her in a lump sum ; and the form reserves liberty to apply as to sums allotted to de- pendants, as it may often be desirable to vary the original award, as contemplated by paragraph 9 of the first schedule. The forms also leave space for the introduction of recitals as to the findings on which the award proceeds. June, 1907. THE WORKMEN'S COMPENSATION RULES, 1907 DATED THE FIRST DAY OF JUNE, 1907 The "Workmen's Compensation Rules, 1898, the Workmen's Former rules, Compensation Rules, 1899, and the Workmen's Compensation Rules, how far 1900, are hereby annulled, but shall continue to apply to cases where annulled ' the accident happened before the commencement of the Workmen's Compensation Act, 1906, except so far as the provisions of that Act 6 Edw. 7.C.58 and of these Rules relating to references to medical referees and proceedings consequential thereon apply to those cases. Preliminary. 1. (1) The following Rules shall have effect under the Workmen's Effect, short Compensation Act, 1906 (in these Rules referred to as the Act), with title, corn- reference to any matter or proceeding for the regulation of which mencement, Rules of Court may be made under the Act, and generally for carrying j^ n of ^ules the Act into effect so far as it affects the County Court or an arbi- 6 Edw. 7. c. 58. trator appointed by the judge of the County Court, and proceedings in the County Court or before any such arbitrator. (2) These Rules may be cited as the Workmen's Compensation Rules, 1907, and shall come into operation on the first day of July, one thousand nine hundred and seven ; but they shall not, except so far as they relate to references to medical referees and proceedings consequential thereon, apply to any case where the accident happened before the commencement of the Act. (3) Expressions used in these Rules shall have the same meaning as the same expressions used in the Act. (4) The Interpretation Act, 1889, shall apply for the purpose of 52 & 53 Viet. the interpretation of these Rules as it applies for the purpose of the c. 63. interpretation of an Act of Parliament. (5) These Rules shall also be read and construed with the County Court Rules, 1903, and the County Court Rules of subsequent date amending the same ; and any Order and Rule referred to by number in these Rules shall mean the Order and Rule so numbered in the 277 278 THE WORKMEN'S COMPENSATION ACT, 1906 Parties to arbitration. Order III., Rule 2. Joinder of applicants. Order III., Rule 1. Order XLIV., Rules 18, 19. Application by depen- dants. County Court Eules, 1903, or in any County Court Eules of subse- quent date, as the case may be. Parties to Arbitration before Judge or Arbitrator appointed by Judge. 2. (1.) When application is made for the settlement by the judge, or by an arbitrator appointed by the judge, of any matter which under the Act is to be settled by arbitration, the party making such application shall be called " the applicant " ; and, subject to these Eules, all other persons whose presence at the arbitration may be necessary to enable the judge or arbitrator effectively and completely to adjudicate upon and settle all the questions involved shall be made parties to the application, and shall be called "the respondents." (2.) In any case in which both the principal as denned by the Act and a contractor with him are alleged to be liable to pay compensa- tion under the Act, Order III., Eule 2, as to joinder of parties, shall apply. 3. More persons than one may be joined as applicants in one arbitration, in any case in which such persons might be joined in one action as plaintiffs under Order III., Eule 1 ; and that Eule, and Eules 18 and 19 of Order XLIV., shall, with the necessary modifications, apply to any such arbitration. 4. (1.) An application on behalf of the dependants of a deceased workman for the settlement by arbitration of the amount payable as compensation to such dependants may be made by the legal personal representative, if any, of the deceased workman on behalf of such dependants, or by the dependants themselves ; and in either case the particulars to be filed as hereinafter mentioned shall contain particulars as to the dependants on whose behalf the application is made. (2.) Provided, that if there is any conflict of interest between the dependants themselves, or if any dependants neglect or refuse to join in an application, the application may be made by or on behalf of some only of such dependants, the other dependants in either case being named as respondents. (3.) In the construction of this rule the term " dependants " shall include persons who claim or may be entitled to claim to be depend- ants, but as to whose claim to rank as dependants any question Application by dependants under Act, Sched. 1, par. 8, where amount of compensation agreed or ascertained. 5. (1.) In any case in which the amount payable as compensation to the dependants of a deceased workman has been agreed upon or ascertained, but any question arises as to who are dependants, or as to the amount payable to each dependant, an application for the settlement of such question by arbitration may be made either by the legal personal representative, if any, of the deceased workman on behalf of the dependants or any of them, or by such dependants APPENDIX A 279 or any of them, against the other dependants, and the persons claim- ing or who may be entitled to claim to be dependants, but as to whose claim to rank as such a question arises ; or such application may be made by the persons claiming to be dependants, but as to whose claim to rank as such a question arises, or any of them, against the legal personal representative, if any, of the deceased workman, and the dependants, and such of the persons claiming or who may be entitled to claim to be dependants as are not applicants. (2.) In any such case, if the employer has paid the agreed or ascertained amount of compensation, it shall not be necessary to make him a respondent, but if such compensation or any part thereof is still in his hands he shall be made a respondent. (3.) The employer, if made a respondent, may pay the amount of compensation in his hands into court, to be dealt with as the judge or arbitrator shall direct, and thereupon further proceedings against him shall be stayed. (4.) (See amended rules, Appendix J.) 6. (1.) An application for the settlement by arbitration of the sum Parties to payable in respect of medical attendance on and the burial of a arbitration deceased workman who leaves no dependants shall be made by the p a y a bi e for legal personal representative, if any, of the deceased workman. If medical there is no such legal personal representative, the application may be attendance made by any person to whom any such expenses are due. In the ^ Sched 1 latter case any other person known to the applicant as a person to p ar [ i ( tt ) ^[ whom any such expenses are due shall be joined in the application either as applicant or respondent. (2.) In any case in which application is made for the settlement by Apportion- arbitration of such amount, the amount awarded, if insufficient for ment of sucn the payment of such expenses in full, shall be apportioned between the persons to whom such expenses are due in such manner as the judge or arbitrator shall direct. 7. The provisions of Eules 7 and 8 of Order III., as to parties suing Parties under or defending on behalf of other persons having the same interest, and disability the provisions of the County Court Kules as to persons under dis- and P art ^ ers 5 ability and partners suing and being sued, shall, with the necessary ^Q U O f par ties modifications, apply to proceedings by way of arbitration under having the the Act. same interest. Application for Arbitration. 8. (1.) An application for the settlement of any matter by arbitra- Bequest for tion shall not be made unless and until some question has arisen arbitration, between the parties, and such question has not been settled by agreement. 280 THE WORKMEN'S COMPENSATION ACT, 1906 Particulars. Forms of request and particulars. Forms 1 to 11. Application by employer. (2.) Where any question has arisen and has not been settled by agreement, an application for the settlement of the matter by arbit- ration shall be made by the applicant filing with the registrar a request for arbitration, intituled in the matter of the Act and in the matter of the arbitration, which request shall state concisely the question which has arisen, and shall, with the subsequent proceedings thereon, be recorded in the special register hereinafter mentioned. (3.) Particulars shall be appended or annexed to the request containing (a) A concise statement of the circumstances under which the application is made, and the relief or order which the applicant claims ; (6) The date of service of notice of the accident on the employer, or, if such notice has not been served, the reason for such omission ; and (c) The full names and addresses of the respondents and of the applicant, and of his solicitor, if the proceedings are commenced through a solicitor. 9. (1.) The request and particulars shall be according to such one of the forms in the Appendix as shall be applicable to the case, with such modifications as the nature of the case may require. (2.) A copy of the notice of the accident shall be appended or annexed to the particulars. If this rule cannot be complied with, the reason for the omission shall be stated in the particulars. 10. (1.) Where an employer on whom a claim for compensation has been made desires to make an application for the settlement of any matter by arbitration, he shall file a request for arbitration in accordance with Bule 8, to which the workman, or the legal personal representative, if any, and the persons claiming or who may be entitled to claim to be dependants of a deceased workman, or the other persons (as the case may be) on whose behalf the claim was made shall be respondents. (2.) Particulars shall be appended or annexed to the request, containing (a) a concise statement of the circumstances under which the application is made; (6) a statement whether the applicant admits his liability to pay compensation, or denies such liability, wholly or partially, with (in the latter case) a statement of the grounds on and extent to which he denies liability ; (c) a statement of the matters which the applicant desires to have settled by arbitration ; and APPENDIX A 281 (d) the full names and addresses of the respondents and of the applicant, and of his solicitor, if the proceedings are commenced through a solicitor. 11. The applicant shall deliver to the registrar with the request Copies for and particulars a copy thereof for the judge or arbitrator, and a copy Respondents, for each respondent to be served. 12. Where the applicant is illiterate and unable to furnish the ^ required information in writing, the request and particulars and copies shall be filled up by the registrar's clerk. Proceedings on Arbitration before Judge. Fixing Day and Place for Arbitration. 13. (1.) On the filing of a request for arbitration, the registrar shall Fixing day transmit a copy of the request and particulars to the judge, who shall an <* P^ce for as soon as conveniently may be (if he decides to settle the matter himself) appoint a day and hour for proceeding with the arbitration. Such day shall be so fixed as to allow the copies of the request and particulars to be served on the respondents at least twenty clear days before the day so fixed. (2.) The arbitration shall, subject as hereinafter mentioned, be held at the place at which the court is held. (3.) Provided, that the judge may direct that the arbitration shall be held at any other place within the district of the court, on applica- tion in that behalf made by any party to the arbitration, and on such party filing an undertaking to provide at his own expense a place to the satisfaction of the judge in which the arbitration may be held, and to pay the necessary expenses of the judge and officers of the court attending at such place. (4.) If such direction is given before the notices mentioned in the next following rule are issued, the registrar shall insert in such notices the place at which the arbitration has been so directed to be held. (5.) If such direction is given after such notices have been issued, the registrar shall forthwith send notice by post to the parties of the place at which the arbitration has been so directed to be held. Notice of Day Fixed. 14. (1.) On the day for proceeding with an arbitration being fixed Notice to the registrar shall give or send by post notice in writing to the appli- parties, cant, stating the place at which and the day and hour on and at which the arbitration will be proceeded with, and shall issue the copies of the request and particulars, under the seal of the court, for Forms 12, 13. 282 THE WORKMEN'S COMPENSATION ACT, 1906 Notice where employer is applicant. Form 13. service on the respondents, together with notices [signed by the registrar himself, and] (see amended rules, Appendix J) under the seal of the court, stating the place at which and the day and hour on and at which the arbitration will be proceeded with, and that if the respondents do not attend in person or by their solicitors such order will be made and proceedings taken as the judge may think just and expedient. (2.) Where the request is filed by an employer, the notices to be served on the respondents shall be modified by the omission of the words therein relating to the denial or admission of liability to pay compensation. Service on Respondents. Service on 15. (1.) The copies and notices mentioned in the last preceding respondents. j^g s hall be served on the respondents at least twenty clear days before the day fixed for proceeding with the arbitration. (2.) The copies and notices mentioned in the last preceding rule may be served (a) By a bailiff of a court ; or, at the request of the applicant or his solicitor, (6) By the applicant, or some clerk or servant in his permanent and exclusive employ ; or (c) By the applicant's solicitor, or a solicitor acting as agent for such solicitor, or some person in the employ of either of them, or some person employed by either of them to serve such copies and notices, who might be so employed to serve a writ in an action in the High Court. Act, sect. 2, (3.) Service may be effected either in accordance with the rules as to service of default summonses, or by registered post in accordance with the provisions of sub-sections 3 and 4 of section 2 of the Act sub-sects. 3, 4. with reference to service of notice in respect of an injury, and the pro- visions of those sub-sections shall apply to such service. (4.) Where service is effected otherwise than by a bailiff, a copy of the document served, with the date and mode of service indorsed thereon, shall within three clear days next after the date of service, or such further time as may be allowed by the registrar of the court issuing such document, be delivered or transmitted to such registrar by the applicant. The applicant shall also (unless the respondent files an answer) after the time limited for filing an answer, deliver or transmit to the registrar an affidavit of the service of such document, according to Form 37 in the Appendix to the County Court Eules, with such variations as the circumstances of the case may require. Where service effected otherwise than by bailiff. APPENDIX A 283 (5.) Where a document is served by post it shall, unless the con- Service by trary be proved, be deemed to have been served at the time when the P st - letter containing the same would have been delivered in the ordinary course of post, and in proving the service of such document it shall be sufficient to prove that the same was properly addressed and registered. (6.) Where the accident occurred in England, and any respondent Service on resides in Scotland or Ireland, service on such respondent may be respondent in effected in accordance with this rule, and service so effected shall be deemed to be sufficient. Scotland or Ireland. Stay of Proceedings. 16. Where several requests for arbitration are filed by different applicants against the same respondent in the same court in respect of matters arising out of the same circumstances, the respondent may, on filing an undertaking to be bound, so far as his liability to pay compensation is concerned, by the award in such one of the said arbitrations as may be selected by the judge, apply to the judge under Order VIII., Rule 2, for an order to stay proceedings in the arbitra- tions other than the one so selected until an award is made in such selected arbitration ; and Rules 2 to 6 of Order VIII. shall, with the necessary modifications, apply accordingly. Stay of proceedings in other arbitrations to abide decision as to liability in selected arbitration. Order VIII., Bules 2-6. Answer by Respondent. 17. (1.) If any respondent desires to disclaim any interest in the Answer by subject matter of an arbitration, or considers that the applicant's par- respondent, ticulars are in any respect inaccurate or incomplete, or desires to bring any fact or document to the notice of the judge, or intends to rely on the fact that notice of the accident, or of death, disablement, or suspension, was not given as required by the Act, or that the claim for compensation was not made within the time limited by the Act, or intends to deny (wholly or partially) his liability to pay compensa- tion under the Act, he shall, ten clear days at least before the day fixed for proceeding with the arbitration, file with the registrar an answer, stating his name and address, and the name and address of his solicitor (if any), and stating that he disclaims any interest in the Form 14. subject matter of the arbitration, or stating in what respect the appli- cant's particulars are inaccurate or incomplete, or stating concisely any fact or document which he desires to bring to the notice of the judge, or on which he intends to rely, or the grounds on and extent to which he denies liability. (2.) The respondent shall with such answer file copies thereof for the applicant and the judge, and one copy for each of the other respondents ; and the registrar shall within twenty-four hours after 284 THE WORKMEN'S COMPENSATION ACT, 1906 Answer where em- ployer is applicant. receiving such copies transmit the same by post to the applicant and the judge and the other respondents respectively. (3.) Subject to any answer so filed, and to the provisions of the next following paragraph, the applicant's particulars, and, in the case of a claim for compensation, the liability to pay compensation under the Act, shall be taken to be admitted. (4.) Provided, that in case of non-compliance with this rule, and of the applicant's not consenting at the arbitration to permit a respondent to avail himself of any matter of which he should pursuant to this rule have given notice by filing an answer, the judge may, on such terms as he shall think fit, either proceed with the arbitration and allow the respondent to avail himself of such matter, or adjourn the arbitration to enable the respondent to file such answer. (5.) The provisions of this rule shall, with the necessary modi- fications, apply to a case in which a request for arbitration is filed by an employer ; but a respondent who fails to file an answer shall not be taken to admit the truth of any statement in the applicant's par- ticulars in which he denies, wholly or partially, his liability to pay compensation. Submission to award or Payment into Court by Respondent. 18. (1.) Where a respondent from whom compensation is claimed admits liability, he may at any time before the day fixed for pro- ceeding with the arbitration, (a) Where the application is made by an injured workman, file with the registrar a notice that the respondent submits to an award for the payment of a weekly sum, to be specified in such notice ; or, (6) Where the application is made on behalf of the dependants of a deceased workman, or for the settlement of the sum payable in respect of medical attendance on and the burial of a deceased workman who leaves no dependants, pay into court such sum of money as the respondent considers sufficient to cover his liability in the circumstances of the case. Forms 16, 17. (2.) The registrar shall within twenty-four hours from the time of any notice filed or payment made pursuant to the last preceding para- graph send notice thereof (with, where a notice is filed, a copy of such notice) to the applicant, and to the other respondents (if any). Submission to award or payment into court by respondent. Form 15. Acceptance of weekly payment offered. Form 18. (3.) If the applicant is a workman, and elects to accept in satisfac- tion of his claim the weekly payment specified in the respondent's notice, he shall send to the registrar and to the respondent by post, or leave at the registrar's office and at the residence or place of business of the respondent, a written notice according to the form in the APPENDIX A 285 Appendix, stating such acceptance, within such reasonable time before the day fixed for proceeding with the arbitration as the time of filing of notice of submission by the respondent has permitted. (4.) If the application for arbitration is made on behalf of the de- Acceptance pendants of a deceased workman, or for the settlement of the sum j^ payable in respect of medical attendance and burial as aforesaid, and p orm 13 the applicant is willing to accept the sum paid into court in satisfaction of the compensation payable to the dependants, or in respect of such medical attendance and burial (as the case may be), he shall send to the registrar and to the respondent by post, or leave at the registrar's office and at the residence or place of business of the respondent, a written notice of such willingness, according to the form in the Appendix, within such reasonable time before the day fixed for proceeding with the arbitration as the time of payment into court by the respondent has permitted. If there are any other respondents, the applicant shall in like manner give notice of such willingness to such respondents ; and if any of such respondents are willing to accept the sum paid into court in satisfaction of such compensation as aforesaid, they shall in like manner give notice of such willingness to the registrar and to the applicant and the other respondents. (5.) If the applicant is a workman, and elects to accept in satisfaction of his claim the weekly payment submitted to by the respondent, or if in any other case the applicant and all the respondents give notice of their willingness to accept the sum paid into court, the following provisions shall apply: (a) Where the respondent submits to an award for the payment of a weekly sum, the judge may, on application made to him in or out of court, forthwith make an award directing payment of such weekly sum accordingly ; (6) Where the respondent has paid money into court, further proceedings against such respondent shall be stayed, except as hereinafter mentioned ; and (i) If the applicant and the other respondents agree as to the apportionment and application of such sum, the judge may, on application made to him in or out of court on behalf of or with the consent of all such parties, forthwith make an award for such apportionment and application ; (ii) In any other case the arbitration may proceed as between the applicant and the other respondents. (c) In any such case the judge may, in his discretion, by his award order the respondent filing notice of submission to an award or paying money into court to pay such costs as the applicant and the other respondents, or any of them, may have Procedure if weekly pay- ment offered or sum paid in is accepted. Costs payable by respondent. 286 THE WORKMEN'S COMPENSATION ACT, 1906 Form 18. Acceptance at any time before arbitration opened. Costs. Procedure and costs if weekly sum offered or sum paid in is not accepted. Submission to award or payment into court where employer is applicant. properly incurred before the receipt of notice of submission to an award or payment into court, including, if the judge on considera- tion of the facts of the case shall so order, any items which might have been allowed by order of the judge, at the hearing of the arbitration. (d) If the applicant or any respondent intends to apply for any such costs, he shall give notice of his intention in his notice of acceptance, according to the form in the Appendix ; or where the time of filing notice of submission to an award or the time of payment into court by the respondent does not permit of notice of acceptance being given, the applicant or any respondent may apply for such costs without giving such notice. (6.) Where any party has not given notice of acceptance in accordance with this rule, he may nevertheless accept the weekly payment which the respondent has submitted to pay, or the sum paid into court, at any time before the arbitration is called on and opened subject to the payment of any costs which may have been reasonably incurred by the respondent since the date of filing notice of sub- mission or the date of payment into court, and which may be allowed by the judge ; and the judge may order any costs so allowed to be paid by the party so accepting, and may order such costs to be set off against any costs payable to such party, or to be deducted from any weekly payment or compensation awarded to such party. (7.) In default of notice of acceptance by the applicant and all the respondents, the arbitration may proceed ; but if no greater weekly payment or compensation is awarded than that which the respondent has submitted to pay or has paid into court, such respondent shall not be liable to pay any further costs than such as he might have been ordered to pay if the weekly payment offered or sum paid into court had been accepted ; and the judge may order any costs incurred by such respondent after notice of submission to an award or payment into court to be paid by any party who has not given notice of acceptance of such weekly payment or sum, and may order such costs to be set off against any costs payable to such party, or to be deducted from any weekly payment or compensation awarded to such party. The judge may also order any costs incurred after notice of payment into court by any party who has given notice of acceptance to be paid by any other party who has not given such notice, and to be deducted from any compensation awarded to such last-mentioned party. (8.) The provisions of this rule shall, with the necessary modifi- cations, apply to a case in which an employer who has filed a request for arbitration admits liability to pay compensation. APPENDIX A 287 Notice to Parties against whom Indemnity claimed under Section 4. 19. Where a respondent claims to be entitled under section 4 of Notice of the Act to indemnity against any person not a party to the arbitration, he shall, ten clear days at least before the day fixed for proceeding with the arbitration, file a notice of his claim according to the form in the Appendix ; and the registrar shall seal such notice and Form 23. deliver it to the respondent, who shall serve the same, together with a copy of the applicant's request and particulars, and of the notice served on the respondent under Rules 14 and 15, upon the person against whom such claim is made ; and the provisions of paragraphs 2 to 6 of Rule 15 shall apply to such service. 20. If any person served with a notice under the last preceding rule Appearance (herein-after called the third party) desires to dispute the applicant's claim in the arbitration as against the respondent on whose behalf the notice has been given, or his own liability to such respondent, he must appear before the judge on the day fixed for proceeding with the arbi- tration, or on any day to which he may have received notice from the registrar that the arbitration has been adjourned or postponed ; and in default of his so doing he shall be deemed to admit the validity of any award made against such respondent as to any matter which the judge has jurisdiction to decide in the arbitration as between the applicant and the respondent, whether such award is made by consent or otherwise, and his own liability to indemnify the respondent to the extent claimed in the notice served on him by the respondent. Provided, that if it appears to the judge before or at the arbitration Where notice that the notice of claim has not been served on the third party in time not ser v e d in to enable him to appear on the day herein-before mentioned, or that for any other sufficient cause the third party is unable to appear on such day, the judge may adjourn the proceedings in the arbitration on such terms, as to costs and otherwise, as may be just. 21. If the third party fails to appear on the day mentioned in Rule 20, Proceedings or, if the proceedings are adjourned under that rule, on the day to on default of which the proceedings are adjourned, then if the arbitration results in an award in favour of the applicant or the arbitration is finally de- party, cided in favour of the applicant otherwise than by an award, the judge may on the application of the respondent make such award as the nature of the case may require in favour of the respondent against the third party : but execution thereon shall not issue without leave of the judge until after satisfaction by the respondent of the award against him, or the amount recovered against him. Provided, that the judge may set aside or vary any award made against the third party under this rule upon such terms as may be just. 288 THE WORKMEN'S COMPENSATION ACT, 1906 Application for directions. What directions may be given. Costs. he Notice of claim to indemnity under sect. 6, or otherwise than under sect. 4. Form 23. If person served makes default in appearing is to be deemed to admit validity of award against respondent. Where notice not served in due time. 22. The third party or the respondent may apply before or at the arbitration to the judge for directions : and the judge, upon the hearing of the application, may, if satisfied that there is a question proper to be determined as to the liability of the third party to make the in- demnity claimed, in whole or in part, order the question of such liability as between the third party and the respondent giving the notice to be determined at or after the arbitration, and if not so satisfied may make such award as the nature of the case may require in favour of the respondent giving the notice against the third party : or the judge may, if it appears desirable so to do, give the third party leave to resist the claim of the applicant against the respondent upon such terms as may be just, or to appear at the arbitration and take such part therein as may be just, and generally may give such directions as he may think proper for having the question most conveniently deter- mined, and as to the mode or extent in or to which the third party shall be bound or made liable by the award in the arbitration. 23. The judge may decide all questions of costs as between a third party and the other parties to the arbitration, and may order any one or more to pay the costs of any other or others, or give such direc- tions as to costs as the justice of the case may require. Notice to Parties against whom Indemnity claimed under Section 6, or otherwise. 24. (1.) Where a respondent claims that if compensation is re- covered against him he will be entitled under section 6 of the Act, or otherwise than under section 4, to indemnity against any person not a party to the arbitration, he shall file and serve a notice of his claim in accordance with Rule 19. (2.) If any person served with a notice under the last preceding paragraph (herein-after called the third party) desires to dispute the applicant's claim in the arbitration as against the respondent on whose behalf the notice has been given, he must appear before the judge on the day fixed for proceeding with the arbitration, or on any day to which he may have received notice from the registrar that the arbitra- tion has been adjourned or postponed ; and in default of his so doing he shall be deemed to admit the validity of any award made against such respondent as to any matter which the judge has jurisdiction to decide in the arbitration as between the applicant and the respondent, whether such award is made by consent or otherwise. Provided, that if it appears to the judge before or at the arbitration that the notice of claim has not been served on the third party in time to enable him to appear on the day herein-before mentioned, or that for any other sufficient cause the third party is unable to appear on such day, the judge may adjourn the proceedings in the arbitration on such terms, as to costs or otherwise, as may be just. APPENDIX A 289 (3.) The third party or the respondent may apply before or at the Application arbitration to the judge for directions ; and the judge, upon the hearing * J u ^8 e * or J , \ - 11 ji j directions aa of the application, may, if it appears desirable so to do, give the third to con( j u ct of party leave tb resist the claim of the applicant against the respondent arbitration. upon such terms as may be just, or to appear at the arbitration and take such part therein as may be just, and generally may give such directions as he shall think proper. (4.) If the third party obtains leave to resist the claim of the appli- Costs. cant against the respondent, the provisions of Rule 23 as to costs shall apply. (5.) Nothing in this Rule shall empower the judge to decide (other- Judge how wise than by consent) any question as to the liability of the third party to to indemnify the respondent, or to make any award in favour of the respondent against the third party, or to make any further or other questions as order than that the third party shall not be entitled in any future pro- to liability of ceedings between the respondent and such third party to dispute the * par ?' validity of the award as to any matter which the judge has jurisdiction to decide in the arbitration as between the applicant and the respon- dent. (6.) Provided, that with the consent of the respondent and the third party, (a) If the arbitration results in an award in favour of the applicant, or is finally decided in favour of the applicant otherwise than by an award, and the third party admits his liability to indemnify the respondent, the judge may, on application made to him at or after the hearing of the arbitration or the final decision thereof, make such award as the nature of the case may require in favour of the respondent against the third party ; but execution thereon shall not issue without leave of the judge until after satisfaction by the respondent of the award against him, or the amount re- covered against him ; or (6) The judge may, on an application for directions, order any ques- tion as to the liability of the third party to make the indemnity claimed to be settled, as between the respondent and the third party, by arbitration after the arbitration between the applicant and the respondent, and may on such subsequent arbitration make such award as the nature of the case may require in favour of either party against the other. (c) In any such case the judge may decide all questions of costs as between the respondent and the third party, and may order either of such parties to pay the costs of the other (including any costs payable by such party to any other party to the arbitra- tion), or give such directions as to such costs as the justice of the case may require. 19 290 THE WORKMEN'S COMPENSATION ACT, 1906 Third party procedure where employer is applicant. Third Party Procedure where Employer is Applicant. 25. The provisions of Rules 20 to 24 shall, with the necessary modifications, apply to a case in which an employer who has filed a request for arbitration claims to be entitled to indemnity against any person not a party to the arbitration. Claim to indemnity as between respondents. Claim to Indemnity as between Respondents. 26. (1.) Where a respondent claims to be entitled to indemnity against any other respondent, a like notice shall be issued and the like procedure shall thereupon be adopted for the determination of ques- tions between the respondents as might- be issued and adopted against such other respondent if such last-mentioned respondent were a third party. (2.) Nothing herein contained shall prejudice the rights of the applicant against any respondent. Procedure in arbitration. Burden of proof of facts not admitted. Procedure on Arbitration. 27. (1.) Subject to the special provisions of these Rules, the proce- dure in an arbitration shall be the same as the procedure in an action commenced in the County Court by plaint and summons in the ordi- nary way, and determined by the judge without a jury ; and the statutory provisions and rules for the time being in force relating to such actions shall, with the necessary modifications, apply to such arbitration accordingly ; and in the application of such provisions and rules the applicant's request for arbitration shall be deemed to be a summons with particulars annexed, the day fixed for proceeding with the arbitration shall be deemed to be the return day, and the applicant and respondents shall be deemed to be plaintiff and defendants re- spectively. (2.) Provided, that the burden of proof of any facts which are not admitted shall be the same, whoever the party may be by whom the request for arbitration is filed. Award. Form 24. Order XXIII., Eule 7. Award. 28. (1.) The award of the judge on any arbitration shall be pre- pared and settled by the registrar, and shall be signed by the judge, and shall be sealed and filed, and sealed copies thereof shall be served on all persons affected thereby in accordance with Rule 7 of Order XXIII. ; and such award shall be enforceable in the same manner as a judgment or order of the court. (2.) The judge shall have power at any time to correct any clerical mistake or error in such award arising from any accidental slip or omission. APPENDIX A 201 Proceedings before Arbitrator appointed by Judge. Appointment of Arbitrator by Judge. 29. With respect to the appointment of an arbitrator by the judge, the f ollowing provisions shall apply : (a) If with respect to any court the Lord Chancellor, by general order, authorises the settlement by an arbitrator appointed by the judge of matters which, in default of such authorisation, would be settled by the judge, the judge may from time to time, on an application being made for the settlement of any matter, either settle the same himself, or he may, with the approval of the Lord Chancellor, appoint, by writing under his hand, and filed in the court, an arbitrator to settle such matter. (6) If with respect to any court the Lord Chancellor makes no such general order as aforesaid, then, on an application being made for the settlement of any matter, the judge may (if from the state of business in the court, or for any other reason, he is unable to settle such matter within a reasonable time) apply to the Lord Chancellor to authorise the settlement of such matter by an arbitrator appointed by the judge. (c) If the Lord Chancellor does not grant such authority, the judge shall proceed to settle the matter in accordance with the Act and these Rules. (d) If the Lord Chancellor grants such authority, the judge may, with the approval of the Lord Chancellor, appoint, by writing, under his hand, and filed in the court, an arbitrator to settle such matter. (e} In case of the death or refusal or inability to act of an arbi- trator appointed under this rule, the judge may, on the applica- tion of any party, appoint a new arbitrator in accordance with this rule. Appointment f ^^ Fixing day for Arbitration. 30. Where any matter is to be settled by an arbitrator, the judge shall return the copy of the request for arbitration to the registrar, with the appointment of such arbitrator, to be transmitted to the arbitrator ; and the registrar shall transmit the copy of the request and a copy of the appointment to the arbitrator, who shall, as soon as conveniently may be, appoint a day and hour for proceeding with the arbitration, in accordance with Rule 13, and the provisions of that rule as to the place where an arbitration shall be held shall apply. Provided, that 'where the arbitration is to be held at the place where the court is held, the day appointed for the arbitration shall, if possible, be one on which the court or other suitable accom- modation in the court-house will be available for the arbitration. Fixing day and place for P rocee dings arbitrator Procedure before arbitrator. 292 THE WORKMEN'S COMPENSATION ACT, 1906 Procedure before Arbitrator. 31. (1.) On the day for proceeding with an arbitration being fixed the registrar shall proceed according to Kule 14, and thenceforward the arbitration shall proceed in the same manner as an arbitration before the judge ; and these rules shall apply and the officers of the court shall act accordingly, with the substitution of the arbitrator for the judge. (2.) Provided that (a) In any case coming within the provisions of paragraph 5 (a) or paragraph 5 (6) (i) of Eule 18, or in any other case in which, after an arbitrator has been appointed, but before the day fixed for proceeding with the arbitration, the parties agree upon an award, the judge may, on application made to him in or out of court on behalf of or with the consent of all parties, settle the matter himself; and thereupon the functions of the arbi- trator as to such matter shall cease, and the registrar shall forthwith inform him that the matter has been settled ; and (b) Any application for the enforcement of or for staying proceed- ings on an award, which would in the case of an award made by the judge be required to be made to the judge, shall, in the case of an award made by an arbitrator, be in like manner made to the judge. Submission of question of law by committee or arbitrator to judge. Act, Sched. 2, par. 4. Statement of case. Fixing day for hearing. Form 25. Submission of Question of Law by Committee or Arbitrator to Judge. 32. (1.) When a committee or an arbitrator (whether agreed on by the parties or appointed by the judge) submits any question of law for the decision of the judge under paragraph 4 of the second schedule to the Act, such submission shall be in the form of a special case. (2.) The case shall be intituled in the matter of the Act and of the arbitration, and shall be divided into paragraphs numbered consecu- tively, and shall state concisely such facts and documents as may be necessary to enable the judge to decide the questions of law raised thereby. Upon the argument of the case the judge and the parties shall be at liberty to refer to the whole contents of such documents, and the judge shall be at liberty to draw from the facts and documents stated in the case any inference, whether of fact or of law, which might have been drawn therefrom if proved at the hearing of an arbitration. (3.) The case shall be signed by the chairman and secretary of foe committee or by the arbitrator, and sent to the registrar, who shall transmit the same to the judge, and the judge shall as soon as conveniently may be appoint a day and hour for hearing the case, and APPENDIX A 293 instruct the registrar to give notice thereof forthwith to the parties. The day shall be so fixed as to allow notice to be given ten days at least before the day fixed for the hearing, unless the judge shall, with the consent of all parties, fix an earlier day. (4.) The registrar shall, on the application and at the cost of any Copies of party, furnish him with a copy of the case. c ase - (5.) On the hearing of the case the judge may, after deciding the Power of question submitted to him, remit the case with a memorandum of his judge on decision to the committee or arbitrator, for them or him to proceed hearing of thereon in accordance with the decision; or if the decision of the judge on the question submitted to him disposes of the whole matter he may himself make an award in the arbitration in accordance with such decision. (6.) The judge may remit the case to the committee or arbitrator Re-statement, for re-statement or further statement. (7.) The judge shall have the same power over the costs of a Costs of special case as he has over the costs of an arbitration, or he may special case, direct that such costs shall be dealt with as costs attending the arbitration ; and the provisions of the Act and these Eules as to such costs shall apply accordingly. Appearance of Parties in Arbitration. 33. (1.) A party to any arbitration under the Act may appear (a) In person : (6) By any solicitor who would be entitled to appear for such party in an action in the County Court : (c) By counsel : Or, by leave of the judge or arbitrator, a party may appear (d} By a member of his family : (e) By a person in the permanent and exclusive employment of such party. (/) In the case of a company or corporation, by any director of the company or corporation, or by the secretary or any other officer or any person in the permanent and exclusive employment of the company or corporation : (0) By any officer or member of any society or other body of persons of which such party is a member or with which he is connected ; or (h) Under special circumstances, by any other person. Appearance of parties. 294 THE WORKMEN'S COMPENSATION ACT, 1906 (2.) No person other than a solicitor who appears or acts on behalf of any party in any arbitration under the Act shall be entitled to have or recover any fee or reward for so appearing or acting, other than such travelling expenses and (in the case of a workman or a member of his family) allowance for time (if any) as may be allowed by the judge or arbitrator : Provided that nothing in these rules contained shall affect the right of counsel to appear or act in any arbitration, or the right of any solicitor to recover costs in respect of his employment of counsel to appear or act as aforesaid. Note to be taken of question of law raised, &G. and copy furnished. Duty of Judge as to taking Notes. 34. At the hearing of any arbitration or special case the judge shall make a note of any question of law raised, and of the facts in evidence in relation thereto, and of his decision thereon, and of his decision in the arbitration or on the hearing of the case : and he shall, at the expense of any party to such arbitration or case, furnish a copy of the note so taken to or allow a copy of the same to be taken by or on behalf of such party, and shall sign such copy, whether a notice of motion by way of appeal has been served or not. Where rights of bankrupt, &c. employer against insurers vest in workman under sect. 5. Examination of employer as to insurance. Order XXV., Eules 71, 72. Provisions as to arbitration. Form 11. Masters, seamen, apprentices, and pilots. Proceedings against Insurers under Section 5. 35. (1.) Where under section 5 of the Act the rights of an em- ployer against any insurers under a contract entered into by the employer with the insurers in respect of any liability under the Act to any workman are transferred to and vest in the workman, the following provisions shall have effect. (2.) Where a workman who is or claims to be entitled to compensa- tion from an employer to whom section 5 of the Act applies is unable to ascertain whether such employer has entered into a contract with insurers in respect of his liability, he may apply to the court on affidavit intituled in the matter of the Act, and setting forth the facts on which the application is made, for an order for the examination of the employer, and the court may make an order accordingly ; and the provisions of Order XXV., Kules 71 and 72, shall apply in the same manner as if the employer were a debtor liable under a judgment or order. (3.) The provisions of the Act and these Rules as to the settlement of matters by arbitration shall with the necessary modifications apply to the settlement by arbitration of any question as to the liability of the insurers or the amount of their liability. Masters, Seamen, Apprentices and Pilots. Section 7. 36. (1.) In the application of the Act and these Eules in the case of masters, seamen, and apprentices to the sea-service and apprentices in the sea-fishing service, who are workmen within the meaning of the APPENDIX A 295 Act, and who are members of the crew of any such ship as in section 7 of the Act mentioned, and to pilots when employed on any such ship, the following provisions shall have effect. (2) In the case of the death of a master, seaman, apprentice, or Claim for pilot, the claim for compensation shall state the date at which news compensation of the death was received by the claimant. death* (8) The claim for compensation on behalf of dependants of a Where master, seaman, apprentice, or pilot lost with his ship, and the master, as a third party in accordance with Rules 19 to 23, 25 and 26 ; and Sm^ the provisions of those rules shall with the necessary modifications jr orm 23 apply to any such claim to contribution in like manner as they apply to claims to indemnity. 300 THE WORKMEN'S COMPENSATION ACT, 1906 Application for appoint- ment. Form 34. Fixing of hearing by registrar. Fixing of hearing by judge. Appointment of Arbitrator by Judge in place of Arbitrator agreed on by the Parties under Schedule II., Paragraph 8. 40. (1.) In case of the death or refusal or inability to act of an arbitrator agreed on by the parties, any party to the arbitration who desires to make an application to the judge to appoint a new arbitrator shall apply in writing to the registrar to fix a time and place for the hearing of such application. (2.) The registrar shall fix the hearing of the application before the judge for any court appointed to be held within fourteen days from the date of the application to the registrar, but so that he shall not, except by consent, fix the hearing for a day less than seven days from the date of the application. (3.) If there is no available court, the registrar shall send notice of the intended application to the judge, who shall as soon as con- veniently may be fix a time and place for the hearing of the application. Such time shall not, except by consent, be less than seven days from the date of the application to the registrar. Summons to other party. Form 35. (4.) On the time and place for the hearing of the application being fixed, the registrar shall issue to the applicant a summons under the seal of the court according to the form in the Appendix, addressed to the other party to the arbitration, and requiring him to attend on the hearing of the application. Service of summons. Hearing of application. Ascertain- ment of willingness to act. Order. Costs. (5.) Such summons shall be served by the applicant on the other party in accordance with Kule 15 of these Rules not less than four clear days before the day fixed for the hearing, unless such party agrees to accept shorter service. (6.) On the day fixed for the hearing the judge shall dispose of the application on hearing the parties, or on hearing the applicant and on proof of service of the summons on the other party, if such other party does not appear. (7.) Before appointing any person to act as arbitrator, the judge shall ascertain that such person is willing to serve if appointed. (8.) The appointment may be made by indorsement on the summons, or by a separate order. (9.) The costs of the application shall be in the discretion of the judge, who may order the same to be paid by one party to the other, or to be dealt with as costs attending the arbitration. Such costs, if allowed, shall be taxed on such scale as the judge shall direct. APPENDIX A 301 Memorandum under Schedule 77., Paragraph 9. 41. (1.) The memorandum as to any matter decided by a committee Memo- or by an arbitrator or by agreement, which is by paragraph 9 of the randum to be second schedule to the Act required to be sent to the registrar, shall Registrar, be intituled in the matter of the Act, and shall be left at the office of Act, Sched. 2, the registrar, or sent by post by registered letter addressed to the par. 9. registrar at his omce, as soon as may be after the matter has Form 36. been decided. (2.) Where the matter is decided after a medical referee has been appointed to report on any matter under paragraph 15 of the second schedule to the Act, a copy of the report of the referee shall be annexed to the memorandum and recorded therewith; and if the referee attended any proceeding in the arbitration, it shall be so stated in the memorandum. 42. (1.) If the matter is decided by a committee or an arbitrator, Authentica- the memorandum shall be authenticated by the signatures of the tion of chairman and secretary of the committee, or by the signature of ]^ m m of the arbitrator; and it shall be the duty of the committee or decision of arbitrator, as soon as may be after the decision, to draw up such committee or memorandum and to sign the same or cause it to be signed as arbitrator, aforesaid, and to leave or send the same as aforesaid, or to deliver the same to some party interested, to be by him so left or sent. (2.) If the matter is decided by agreement, the memorandum shall Authentica- be authenticated by the signatures of all parties to such agreement, tion of or by the signatures or signature of some or one of them, or by the JJf signatures or signature of the solicitors to the parties or some or one of them on their or his behalf. (3.) There shall be left or sent with the memorandum a copy Copies, thereof for every party interested, other than the party (if any) by whom the memorandum is left or sent. 43. On the receipt of the memorandum the registrar shall send one Notice to of the copies thereof to every party interested, with a notice accord- parties ing to the form in the Appendix, requesting such party to inform memorandu him within seven days from the date of the notice whether the having been memorandum is genuine, or whether he disputes it, and, if so, in received, what particulars, or objects to its being recorded, and, if so, on Form 37. what grounds. 44. If all the parties interested admit the genuineness of the Eecordingof memorandum, or do not within such period of seven days dispute JJ^ ^^ it or object to its being recorded, the registrar shall, subject to Disputed, proviso (d) to paragraph 9 of the second schedule to the Act, and to Bule 49, record it without further proof. 302 THE WORKMEN'S COMPENSATION ACT, 1906 Where memorandum disputed, or employer objects to its being recorded. Act, Sched. 2, par. 9 (&). Form 38. Notice of dispute or objection. Form 39. Subsequent proceedings. 45. If any party interested disputes the genuineness of the memorandum, or if, where a workman seeks to record a memo- randum of agreement between his employer and himself, the employer alleges that the workman has in fact returned to work and is earning the same wages as he did before the accident, and objects to the recording of the memorandum, such party or em- ployer shall within seven days from the date of the notice mentioned in Eule 43 file with the registrar a notice according to the form in the Appendix that he disputes the genuineness of the memorandum or that he objects to its being recorded, and shall with such notice file a copy thereof for each of the other parties interested. 46. On the receipt of any such notice as in the last preceding rule mentioned, the registrar shall send a copy thereof to each of the other parties interested, together with a notice according to the form in the Appendix, informing such party that the memorandum will not be recorded except with the consent in writing of the party or employer disputing the same or objecting to the same being re- corded, or by order of the judge. 47. (1.) If the consent mentioned in the last preceding rule is obtained, the registrar shall, subject to proviso (d) to paragraph 9 of the second schedule to the Act, and to Eule 49, record the memorandum without further proof. (2). If such consent cannot be obtained, any party interested may apply to the judge to order the memorandum to be recorded. Proceedings on applica- tion for record of memorandum or rectifica- tion of register. Form 40. Proceedings for Record of Memorandum or Rectification of Register. 48. The following provisions shall apply to an application for an order that a memorandum be recorded, or an application to the judge to rectify the register pursuant to paragraph 9 of the second schedule to the Act. (a) The application shall be made in court on notice in writing stating the relief or order which the applicant claims. (6) The notice shall be filed with the registrar, and copies thereof shall be served (i) in the case of an application for an order that a memoran- dum be recorded, on the party disputing the memorandum or objecting to its being recorded, and on all other parties interested : (ii) in the case of an application to rectify the register, on every party who would be affected by such rectification, subject to the provisions of these Eules as to the parties to an arbitration ; APPENDIX A 303 or on the solicitor of such party, ten clear days at least before the hearing of the application, unless the judge or registrar gives leave for shorter notice. (c) On the hearing of the application witnesses may be orally examined in the same manner as on the hearing of an action. (d) On the hearing of the application the judge may make such order or give such directions as he may think just, regard being had, in the case of an application for an order that a memoran- dum of an agreement be recorded, to proviso (d) to paragraph 9 of the second schedule to the Act. (e) The provisions of the Act and these Eules as to the costs of an arbitration before the judge shall apply to any such application. Proceedings where agreement presented for registration is referred by registrar to judge. Act, Sched. 2, par. 9, proviso (d). Reference of Agreement presented for Registration to the Judge. Schedule II., Paragraph 9, Proviso (d) 49. (1.) Where a memorandum of an agreement presented for registration relates to any matter referred to in proviso (d) to para- graph 9 of the second schedule to the Act, the registrar may, before recording the same, make such inquiries and obtain such information as he may think necessary in order to satisfy himself whether the memorandum may properly be recorded, regard being had to the said proviso. (2.) Where it appears to the registrar that the memorandum ought not to be recorded for any reason mentioned in the said proviso, he shall make a report to the judge in writing, stating the information he has obtained, and the grounds on which it appears to him that the memorandum ought not to be recorded. (3.) If on consideration of the registrar's report it appears to the judge that the memorandum may properly be recorded, he may so direct, and it shall be recorded accordingly. (4.) If on consideration of the registrar's report it appears to the judge that the memorandum should not be recorded without further inquiry, the registrar shall send notice to the parties to the agreement Form 41. according to the form in the Appendix, informing them that he has referred the matter to the judge, and requiring them to attend on a day to be named in the notice, when the matter will be inquired into by the judge. (5.) The notices shall be sent to the parties or their solicitors ten clear days at least before the day fixed for the inquiry, unless the judge directs shorter notice to be given. (6.) At the inquiry witnesses may be orally examined in the same manner as on the hearing of an action. 304 THE WORKMEN'S COMPENSATION ACT, 1906 (7.) At the inquiry the judge may make such order or give such directions as he may think just. (8.) The provisions of the Act and these Eules as to the costs of an arbitration before the judge shall apply to any such inquiry. Application for removal of agreement from register. Act, Sched. 2, par. 9, proviso (e). Form 42. Notice where inquiry directed by judge. Form 43. Certificate under Act, sect. 1, sub- sect. 4. Form 44. Proceedings for Removal of Record of Memorandum of Agreement from Register under Schedule II., Paragraph 9, Proviso (e). 50. (1.) An application to the judge by or on behalf of any party for the removal from the register of the record of a memorandum of an agreement under proviso (e) to paragraph 9 of the second schedule to the Act shall be made in court on notice in writing : and the pro- visions of Rule 48 shall apply to the proceedings on such application. (2.) If it appears to the judge on a report by the registrar without such application as in the last preceding paragraph mentioned that the record of a memorandum of an agreement should be removed from the register pursuant to the said proviso, the registrar shall send notice to the parties to the agreement according to the form in the Appendix, requiring them to attend on a day to be named in the notice, when the matter will be inquired into by the judge. (3.) Such notice shall be sent and the inquiry held in accordance with the provisions of the last preceding rule, and the provisions of that rule shall apply to any such inquiry. Certificate under Section 1, Sub-section 4. 51. (1.) Where an action is brought in the County Court to recover damages independently of the Act for injury caused by any accident, and the court proceeds under sub-section 4 of section 1 of the Act, the certificate given by the court shall be according to the form in the Appendix. (2.) The registrar shall, on receiving a certificate given by any other court under the said sub-section, record the same in like manner as if such certificate were an award made by the judge. Application for assessor. Summoning Medical Referee as Assessor under Schedule 17., Paragraph 5. 52. (1.) Any party to an arbitration may eight clear days at least before the day fixed for proceeding with the arbitration file with the Act, Sched. 2, re gj s ^ rar on application according to the form in the Appendix, Form 45. requesting the judge to summon a medical referee to sit with him as an assessor under paragraph 5 of the second schedule to the Act. APPENDIX A 305 Summoning of assessor if judge approves or so directs. Form 47. (2.) On the receipt of an application for an assessor the registrar Assessor to be shall forward a copy of the same to the judge, who if he thinks fit summoned shall return the same with his approval, and thereupon the registrar a p pr OV e 8 . shall forthwith summon an assessor. (3.) If the judge does not think fit that an assessor shall be sum- Notice where moned, notice thereof shall be given by the registrar to the applicant, ^8 e J}ff., according to the form in the Appendix. (4.) If the judge thinks fit, either on the application of any party to an arbitration or on his own motion, to summon a medical referee to sit with him as an assessor, the registrar shall forthwith summon one of the medical referees appointed by the Secretary of State for the area comprising the district of the court in which the arbitration is pending, by sending to such medical referee by post a summons according to the form in the Appendix. (5.) If at the time and place appointed for the arbitration the Where medical referee summoned does not attend, the judge may either asses proceed with the arbitration without the assistance of an assessor, or he may adjourn the hearing. Appointment of Medical Referee to Report under Schedule II., Paragraph 15. 53. (1.) Subject to and in accordance with regulations made by the Appointment Secretary of State and the Treasury under paragraph 15 of the second of medical schedule to the Act, the judge may submit to a medical referee for report un( j er report any matter which seems material to any question arising in an Act, Sched. 2. arbitration. par. 15. (2.) When any matter is submitted as aforesaid, the judge may, subject to and in accordance with such regulations, order the injured workman to submit himself for examination by the medical referee ; and it shall be the duty of the workman, on being served with such order, to submit himself for examination accordingly. Application for Reference to Medical Referee under Schedule L, Paragraph 15. 54. (1.) With respect to applications to the registrar pursuant to paragraph 15 of the first schedule to the Act to refer any matter to a medical referee, the following provisions shall have effect. Application for reference to a medical referee under Act, Sched. 1, par. 15. (2.) An application to the registrar to refer any matter to a medical referee shall be made in writing, and shall contain a statement of the facts which render the application necessary, according to the form Form 48. in the Appendix, and shall be accompanied by a copy of the report of every medical practitioner who has examined the workman either on behalf of the employer or on the selection of the workman. The 20 306 THE WORKMEN'S COMPENSATION ACT, 1906 application shall be signed by or on behalf of both parties ; and the applicant shall file copies of the application and reports for the use of the medical referee. (3.) On the hearing of the application the registrar shall refer the matter to one of the medical referees appointed for the area com- prising the district of the court : and shall forward to such medical referee by registered post one of the filed copies of the application Form 49. and reports, with an order of reference according to the form in the Appendix. Form 50. (4.) The registrar shall also make an order directing the workman to submit himself for examination by the medical referee, subject to and in accordance with any regulations made by the Secretary of State. (5.) Before making such order the registrar shall inquire whether the workman is in a fit condition to travel for the purpose of ex- amination, and if satisfied that he is in a fit condition shall by the order direct him to attend at such time and place as the referee may fix, and if satisfied that he is not in a fit condition to travel shall so state in the order of reference : and it shall be the duty of the work- man, on being served with the order, to submit himself for examina- tion accordingly. (6.) The registrar shall deliver or send by registered post to each party a copy of the order of reference, and shall send to the workman a copy of the order directing him to submit himself for examination. (7.) The medical referee shall forward his certificate in the matter to the registrar by registered post. Form 51. (8.) On the receipt of the certificate of the medical referee the registrar shall inform the parties by post that it has been received, and shall permit any party to inspect the same during ofiice hours, and shall on the application and at the cost of either party furnish him with a copy of the certificate, or allow him to take a copy thereof. (9.) The fee payable by the applicant shall be calculated at the rate of one shilling in the pound on 26 times the amount of the weekly payments claimed by or payable to the workman, so that the total fee shall not exceed one pound. (10.) The costs of any application to the registrar, including the fee paid under the last preceding paragraph, may be allowed as costs in any subsequent arbitration for the settlement of the weekly payment to be made to the workman, or, where the application is made after the weekly payment has been settled, as costs in any subsequent arbitration as to the review of such weekly payment. APPENDIX A 307 Suspension of Proceedings or Weekly Payments on Refusal to Submit to Examination under Schedule I., Paragraph 4, Paragraph 14, or Paragraph 15. 55. (1.) In any case in which a workman has given notice of an . Hcation accident, or is receiving weekly payments under the Act, and the to stay employer alleges that the workman refuses to submit himself to proceedings medical examination in accordance with paragraph 4, paragraph 14, or suspend or paragraph 15 of the first schedule to the Act, or in any way mtnt/an*" obstructs such examination, the employer may apply for a suspension refusal of of the right to compensation and to take or prosecute any proceed- workman to ings under the Act in relation to compensation, or of the right to examination the weekly payments, until such examination has taken place, in un der Act, accordance with this rule. Sched. 1, (2.) Where proceedings are pending before a committee or an or^ar^T* ' arbitrator agreed on by the parties, the application shall be made to such committee or arbitrator. (3.) Where the workman has given notice of an accident, but no proceedings are pending, or proceedings are pending before the judge or an arbitrator appointed by him, the application shall be made to the judge. (4.) Where the workman is receiving weekly payments under an award, memorandum, or certificate, then (a) If proceedings for the review of the weekly payment are pending before a committee or an arbitrator agreed on by the parties, the application shall be made to such committee or arbitrator ; (6) If no proceedings for review are pending, or if proceedings for review are pending before the judge or an arbitrator appointed by him, the application shall be made to the judge. (5.) Where the application is to be made to the judge, it may be Form 52. made in or out of court in accordance with Rule 48; and the pro- visions of the said rule shall apply to the proceedings on such application, with the following modification; (a) The notice shall be served on the workman or his solicitor five clear days before the hearing of the application, unless the judge or registrar gives leave for shorter notice. Payment into Court and Investment and Application of Money payable in case of Death. Schedule /., Paragraph 5. * 56. (1.) Where any payment hi the case of death is to be paid into Payment into the county court pursuant to paragraph 5 of the first schedule to the court > in ~ Act, the following provisions shall have effect. r^atfon^l (2.) Where any money is to be paid into court under an award payment in made by the judge or an arbitrator appointed by him, payment shall case ^ death, be made in accordance with the directions contained in the award. ^j.' g C e ' * * The whole of Rule 56 is annulled by the Rules of March 14, 1908 (see post, Appendix J). 308 THE WORKMEN'S COMPENSATION ACT, 1906 (3.) In any other case payment shall be made into the court in which the memorandum of the decision, award, or agreement under which the money is to be paid, or the certificate under which the money is to be paid, has been or is to be recorded. Form 53. (4.) Where money is to be paid into court under the last preceding paragraph, the party paying the same shall lodge with the registrar a prsecipe in duplicate according to the form in the Appendix, annexing to one copy of the praecipe a form of receipt, and the registrar, on the receipt of the sum paid in, shall sign the receipt and return the same to the party making the payment ; and the party making the pay- ment shall forthwith give notice to the persons interested in the sum paid in of such payment having been made. (5.) If all questions as to who are dependants and the amount payable to each dependant have been settled by agreement or arbitra- tion before payment into court, the sum paid into court shall be allotted between the dependants in accordance with the agreement or award, and the amount allotted to each dependant shall be invested, applied, or otherwise dealt with by the court for the benefit of the person entitled thereto in accordance with paragraph 5 of the first schedule to the Act. (6.) If such questions have not been settled before payment into court, then (a) If all the persons interested in the sum paid into court agree to leave the application thereof to the court, the amount paid into court shall, on application by or on behalf of such persons, be invested, applied, or otherwise dealt with by the court for the benefit of the persons entitled thereto in accordance with paragraph 5 of the first schedule to the Act. (6) If any question arises as to who is a dependant or as to the amount payable to any dependant, or otherwise as to the appli- cation of the sum paid into court, such question shall be settled by the court by arbitration in accordance with these rules ; and the amount allotted to each dependant shall be invested, applied, or otherwise dealt with by the court for the benefit of the person entitled thereto in accordance with paragraph 5 of the first schedule to the Act. (7.) Where any question is settled by the court by arbitration in accordance with the last preceding paragraph, an application for the investment or application of any sum allotted to any person on such arbitration may be made at or immediately after the hearing of the arbitration. (8.) Where application is not so made, or in any other case coming within paragraph 5 of the first schedule to the Act, an application for APPENDIX A 309 the investment or application of the sum paid into court, or the amount allotted to any person, may be made without petition, and the judge, on such evidence of title and identity as he may think necessary, may make such order under paragraph 5 of the first schedule of the Act and this rule as he may think fit. (9.) Every order for the investment or application of money paid into court shall reserve liberty to the parties interested to apply to the court as they may be advised. (10.) When any sum allotted to any person under paragraph 5 of the first schedule to the Act or this rule is ordered to be paid out to or applied for the benefit of the person entitled thereto, by weekly or other periodical payments, such payments may be made to the person entitled to receive the same either at the office of the registrar, or, on the written request of such person, by crossed cheque or Post Office order addressed to such person and forwarded by registered post letter, payment by post being in all cases at the cost and risk of the person requesting the same. (See Rule 56x 1-13 of amended rules, post, Appendix J.) Payment into Court and application of Weekly Payments payable to Persons under Legal Disability. Schedule J., Paragraph 7. 57. (1.) An application under paragraph 7 of the first schedule Application to the Act for an order that a weekly payment payable under the Act f or payment to a person under any legal disability shall during the disability l^eddy be paid into court may be made either by the person liable to make payment to such payment, or by or on behalf of the person entitled to such person under payment. W^.. disability. (2.) If the weekly payment is awarded by the judge, the appli- A ^' Sched. 1, cation may be made at or immediately after the hearing of the arbitration. (3.) In any other case the application may be made in or out ;p orm 54 of court on notice in writing, which shall be served on the other party or his solicitor five clear days at least before the hearing of the application, unless the judge or registrar gives leave for shorter notice ; and the provisions of Rule 48 shall apply to any such applica- tion. (4.) Where any weekly payment is ordered to be paid into court, the sums paid in shall be paid out by the Registrar to or other- wise applied for the benefit of the person entitled thereto in such manner as the judge shall direct ; and the provisions of the last pre- ceding rule as to the payment out or application of sums by weekly or other periodical payments shall apply. Application for variation of order. Act, Sched. 1, par. 9. Form 55. 310 THE WORKMEN'S COMPENSATION ACT, 1906 Application for Variation of Order under Schedule I., Paragraph 9. 58. (1.) An application for the variation of an order of the court under paragraph 9 of the first schedule to the Act may be made by any person interested. (2.) The application shall be made in court on notice in writing, stating the circumstances under which the application is made, and the relief or order which the applicant claims. (3.) The notice shall be filed with the registrar, and notice thereof shall be served on all persons interested in accordance with Rule 48 ; and the provisions of that rule and of Rule 56 shall apply to the proceedings on such application. Investment and applica- tion of sums paid in redemption of weekly payments. Act, Sched. 1, par. 17. Investment and Application of Lump Sum paid in Redemption of Weekly Payment. Schedule I., Paragraph 17. 59. Where pursuant to paragraph 17 of the first schedule to the Act a lump sum payable for the redemption of any weekly payment is ordered by a committee or an arbitrator, or by the judge, to be invested or applied for the benefit of the person entitled thereto, such sum shall be paid into court ; and the provisions of paragraph 5 of the first schedule to the Act and of Rule 56 shall apply to the invest- ment and application of such lump sum. Where workman receiving weekly pay- ment intends to cease to reside in United Kingdom. Act, Sched. 1, par. 18. Form 56. Proceedings where Workman receiving Weekly Payment intends to cease to reside in United Kingdom. Schedule 7., Paragraph 18. 60. (1.) Where a workman receiving a weekly payment intends to cease to reside in the United Kingdom, the following provisions shall have effect under paragraph 18 of the first schedule to the Act. (2.) The workman may apply to the registrar to refer to a medical referee the question whether the incapacity of the workman resulting from the injury is likely to be of a permanent nature. * (3.) The application shall be made on notice in writing, according to the form in the Appendix, which shall be filed with the registrar, and shall be accompanied by a copy of the report of any medical practitioner who has examined the workman on the selection of the workman ; and a copy of the application and of such report (if any) shall be served on the employer or his solicitor in accordance with Rule 48 ; and the applicant shall file a copy of the application and of the report (if any) for the use of the medical referee. * See amended Irules, Appendix J, post, by which paras. 3-7 of this rule are annulled. APPENDIX A 311 (4.) If the workman has been examined by a medical practitioner on behalf of the employer, the employer may at or at any time before the hearing of the application furnish the workman with a copy of the report of that practitioner as to the workman's condition, and file a copy of the report for the use of the medical referee. (5.) On the hearing of the application the registrar, on being satisfied that the applicant has a bond fide intention of ceasing to reside in the United Kingdom, shall make an order referring Form 57. the question to a medical referee ; and if he is not so satisfied, he may refuse to make an order, but in that case he shall, if so requested by the applicant, refer the matter to the judge, who may make such order or give such directions as he may think fit. (6.) If the registrar or the judge makes an order referring the Form 50. question to a medical referee, he shall also make an order directing the workman to submit himself for examination by the medical referee, subject to and in accordance with any regulations made by the Secretary of State ; and the provisions of paragraphs 3 to 6 of Kule 54 shall with the necessary modifications apply. (7.) The medical referee shall forward his certificate in the matter to the registrar by registered post, specifying therein the nature of the incapacity of the workman, and whether the same is total or partial ; and the registrar shall thereupon proceed in accordance with para- graph 8 of Rule 54. Form 51. (8.) Where the medical referee certifies that the incapacity resulting from the injury is likely to be of a permanent nature, the registrar shall on application furnish the workman (a) with a copy of the certificate of the medical referee, sealed with the seal of the court and certified by the registrar in his own handwriting to be a true copy ; and (b) with a copy of the award, memorandum, or certificate under which the weekly payment is payable, sealed with the seal of the court and certified by the registrar in his own handwriting to be a true copy ; and (c) with a certificate of identity according to the form in the Form 58. Appendix ; and (d) with a notice according to the form in the Appendix, annexing Forms 59, 60, thereto forms of certificate and declaration according to the 61. forms in the Appendix ; and shall procure from the workman a specimen of his signature, and file the same for reference. 312 THE WORKMEN'S COMPENSATION ACT, 1906 (9.) A workman who desires to have the weekly payments payable to him remitted to him while residing out of the United Kingdom shall at intervals of three months from the date to which such payments were last made submit himself to examination by a medical practitioner in the place where he is residing, and shall produce to him the copy of the certificate of the medical referee and the certificate of identity furnished under the last preceding paragraph, and shall Form 60. obtain from him a certificate in the form in the Appendix that the in- capacity of the workman resulting from the injury continues; and such certificate shall be verified by declaration by the medical prac- titioner, in the presence of the workman, before a person having authority to administer an oath. (10.) The workman shall also make a declaration of identity accord- Form 61. ing to the form in the Appendix before a person having authority to administer an oath, producing to such person the copy and certificate above mentioned, and the certificate of the medical practitioner by whom he has been examined. (11.) The workman shall forward the certificate and declaration in the two last preceding paragraphs mentioned to the registrar, with Form 62. a request, according to the form in the Appendix, for the transmission to him of the amount of the weekly payments due to him, specif ying the place where and the manner in which the amount is to be remitted, which request shall be signed by the workman in his own handwriting. (12.) On receipt of the certificate, declaration, and request the registrar shall examine the same, and may if not satisfied that the same are in order return the same for correction. (13.) If the registrar is satisfied that the certificate, declaration, and request are in order, or when they are returned to him in order, Form 63. ne shall send to the employer a notice according to the form in the Appendix, requesting him to forward the amount due ; and the em- ployer shall thereupon forward the amount to the registrar, who shall remit the same, less any fees payable to the registrar and the costs of transmission, to the workman at the address and in the manner requested by him, such remittance being in all cases at the cost and risk of the workman. Costs. < ostg 61. (1.) Any costs of and incident to an arbitration and proceedings Act, Sched. 2, connected therewith directed by a committee or by an arbitrator par. 7. (whether agreed on by the parties or appointed by the judge), or by the judge, to be paid by one party to another shall, in default of agreement between the parties as to the amount of such costs, be taxed according to such one of the scales of costs applicable to APPENDIX A 313 actions in the County Court as the committee, arbitrator, or judge shall direct ; and in default of such direction shall be taxed according to the scale which would be applicable if the proceeding had been an action in the County Court : and the statutory provisions and rules for the time being in force as to the allowance and taxation of costs in such action, and as to objections and review of taxation by the registrar, shall apply accordingly. Proceedings in an arbitration shall be within Order LIIL, Rules 7 and 8, and the word " judge " in those Order LIIL, rules shall include a committee and an arbitrator. Rules 7, 8. (2.) Where the subject-matter of an arbitration is not a capital sum, the committee, arbitrator, or judge shall determine what, for the pur- pose of the allowance and taxation of costs, shall be considered to be the amount of the subject-matter of the arbitration ; and in default of such determination the amount shall be fixed by the registrar by whom the costs are to be taxed, subject to review by the judge. (3.) The committee, arbitrator, or judge, in dealing with the question of costs, may take into consideration any offer of compensa- tion proved to have been made on behalf of the employer. (4.) Where any workman is examined by a medical referee on a reference under paragraph 15 of the first schedule to the Act, and the certificate of the referee is used in any subsequent arbitration, any reasonable travelling and other expenses incurred by the workman in obtaining such certificate (if not otherwise provided for) may, by order of the committee, arbitrator, or judge, be allowed as costs in the arbitration. (5.) Where a workman is ordered to submit himself for examination by a medical referee appointed to report under paragraph 15 of the second schedule to the Act, any reasonable expenses incurred by such workman in travelling to attend on such referee for examination may, by order of the committee, arbitrator, or judge, be allowed as costs in the arbitration. 62. Where any costs are awarded by a committee or an arbitrator agreed on by the parties, it shall be the duty of the registrar of the court in which a memorandum of the decision of the committee or arbitrator is recorded pursuant to paragraph 9 of the second schedule to the Act, on application made to him, to tax such costs, and to enter in the register the amount of such costs allowed on taxation ; and such entry shall be deemed to be part of such memorandum, and shall be enforceable accordingly. Taxation of costs awarded by committee or abitrator agreed on by parties. Review of Taxation by Judge. 63. (1.) An application to the judge to review any taxation of costs Beview of shall be made on notice in writing, which shall be served on the oppo- taxation, site party two clear days at least before the hearing of the application, unless the judge or registrar gives leave for shorter notice. 314 THE WORKMEN'S COMPENSATION ACT, 1906 (2.) Such application shall be heard and determined upon the evidence which has been brought in before the registrar, and no further evidence shall be received on the hearing thereof unless the judge otherwise direct. (3.) The costs of and incident to the application shall be in the discretion of the judge. (4.) The result of such review shall be entered in the register. As to 64. Where any party to whom costs are awarded acts by a solicitor, authority of such solicitor shall have the same authority to take out of court or solicitor to . , . , receive costs receive anv sum P ai< * m * court or payable in respect of such costs by payable by the party against whom such costs are awarded as he would have if adverse party, such costs were awarded in an action. Costs of Solicitor or Agent under Schedule II., Paragraph 14. Application 65. (1.) The f ollowing provisions shall apply to an application under to determine paragraph 14 of the second schedule to the Act for the determination costs payable o f ^he amount of costs to be paid to the solicitor or agent of a person to solicitor , . . , . , , , * i or agent claiming compensation under the Act. Act, Sched. 2, par. 14. (2.) Where the sum awarded as compensation has been awarded by a committee or an arbitrator agreed on by the parties, the application shall be made to such committee or arbitrator. (3.) Where the sum awarded as compensation has been awarded by the judge or by an arbitrator appointed by him, the application may be made (a) to the judge or arbitrator at or immediately after the hearing of the arbitration : or (6) at a subsequent date, but in that case it shall be made only to the judge. (4.) Where a sum has been agreed on as compensation, the applica- tion shall be made to the judge. (5.) An application made to the judge, other than an application Form 64. under paragraph 3 (a) of this rule, shall be made in court on notice in writing in accordance with Eule 48. (6.) Such notice shall be served on the person for whom the solicitor or agent acted in accordance with the said rule, and the provisions of the said rule shall apply to the proceedings on such application. APPENDIX A 315 (7.) On the hearing of any application under this rule, the com- mittee, arbitrator, or judge may award costs to the solicitor or agent, and may make an order declaring such solicitor or agent to be entitled to recover such costs from the person for whom he acted, or to be entitled to a lien for such costs on any sum awarded as compensation to such person, or to be entitled to deduct such costs from any such sum, or may make such order or give such directions as may be just. (8.) Any costs awarded to a solicitor or agent on any such applica- tion shall, in default of agreement between the parties as to the amount of such costs, be taxed according to such one of the scales of costs applicable to actions in the County Court as the committee, arbitrator, or judge shall direct ; and in default of such direction such costs shall be taxed according to the scale which would be applicable if the proceedings had been an action in the County Court ; and the statutory provisions and rules for the time being in force as to the allowance and taxation of costs in such actions, and as to objections and review of taxation by the registrar, shall apply accordingly ; and any taxation shall be subject to review by the judge according to Bule 63. (9.) Where the subject-matter of the arbitration is not a capital sum, the committee, arbitrator, or judge shall determine what, for the purpose of the allowance and taxation of such costs, shall be considered to be the amount of the subject-matter of the arbitra- tion ; and in default of such determination the amount shall be fixed by the registrar by whom the costs are to be taxed, subject to review by the judge. 66. Where an order is made by a committee, arbitrator, or judge p rov i g i ons awarding costs to a solicitor or agent, and declaring such solicitor to order or agent to be entitled to recover such costs from the person for declaring whom he acted, or to be entitled to a lien for such costs on any sum llen * c< awarded or agreed as compensation, or to be entitled to deduct such costs from any such sum, the following provisions shall apply : (a) The registrar shall, on application made to him, tax such costs. (6) A copy of the order, and, when the amount to which such solicitor or agent is entitled has been ascertained by taxation, a memorandum of such amount, shall, at the request and cost of the solicitor or agent, be issued by the registrar for service on the party liable to pay the sum awarded or agreed as com- pensation ; and service thereof may be effected on such party in accordance with Bule 15. 316 THE WORKMEN'S COMPENSATION ACT, 1906 (c) A memorandum of such order, and when such amount has been ascertained a memorandum of such amount, shall be recorded in the register in which the memorandum or award under which the sum awarded as compensation is payable is recorded, and such last mentioned memorandum or award shall have effect subject to such order and memorandum. (d) The party liable to pay such compensation shall on demand pay to the solicitor or agent the amount to which he is entitled, but so that such party shall not be liable to pay any amount in excess of that which he is liable to pay for compensation, or to pay such amount by any other instalments than those by which he is liable to pay such compensation. (e) If the party liable to pay such compensation fails on demand to pay any amount which he is liable to pay to such solicitor or agent, the judge may, on application made to him on notice to such party in accordance with Rule 48, and on proof of the order having been served on and demand for payment made to such party, order such party to pay such sum; and in default of payment the judge may order execution to issue to levy such amount. (f) Payment made by or execution levied on the party liable to pay such compensation shall be a valid discharge to him, as against the party entitled to such compensation, to the amount paid or levied. (g) Where the sum awarded as compensation has been paid into court, the amount to which the solicitor or agent is entitled shall be paid to him out of such sum. Execution. Execution. 67. (1.) When a party liable to pay compensation or costs under Form 65. any award, memorandum, or certificate has made default in payment of the amount awarded, or where payment is to be made by instal- ments, of any instalment, execution may issue against his goods without leave for the amount in payment of which he has made default. (2.) Where such sum is not payable into court, the party applying for execution shall satisfy the registrar, by affidavit or otherwise, as to the amount in payment of which default has been made. (3.) Where the parties liable to pay compensation or costs under any award, memorandum, or certificate are a firm, the provisions of Order XXV Order XXV., Eule 11, shall, with the necessary modifications, apply Kule 11. to execution under this rule. APPENDIX A 317 Proceedings under Debtors Act, 1869, Section 5. 68. (1.) Where proceedings by way of judgment summons under Proceedings section 5 of the Debtors Act, 1869, are taken against a party liable under to pay compensation or costs under any award, memorandum, or i^gg' certificate, who has made default in payment of the amount awarded, 32 & c . execution or committal shall, with the necessary modifications, apply to proceedings for the enforcement of or the recovery of money due under any award, memorandum, or certificate. Setting aside Award or Order improperly obtained. 70. (1.) Notwithstanding anything in these Eules contained, the Kules as to statutory provisions and rules relating to new trials in actions in the new trials County Court shall not apply to arbitrations under the Act. not to (2.) Where the judge is satisfied When award (a) that any award, or any order as to the application of any be setTside 7 amount awarded or agreed upon as compensation, made by the or varied, judge or by an arbitrator appointed by him, has been obtained by fraud or other improper means ; or 318 THE WORKMEN'S COMPENSATION ACT, 1906 Appeals. Act, Sched. 2, par. 4. Deposit of order of Court of Appeal with registrar, and procedure thereon. (b) that any person has been included in any award or order as a dependant who is not in fact a dependant as defined by the Act ; or (c) that any person who is in fact a dependant as defined by the Act has been omitted from any award or order, the judge may set aside or vary the award or order, and may make such order (including an order as to any sum already paid under the award or order) as under the circumstances he may think just. (3.) An application to set aside or vary an award or order under this rule shall be made in court on notice in writing, and the provisions of Rule 48 shall apply to the proceedings on such application. (4.) An application to set aside or vary an award or order under this rule shall not be made after the expiration of six months from the date of the award or order, except by leave of the judge ; and such leave shall not be granted unless the judge is satisfied that the failure to make the application within such period was occasioned by mistake, absence from the United Kingdom, or other reasonable cause. Appeals. 71. Appeals under paragraph 4 of the second schedule to the Act shall be had in accordance with the provisions of the Rules of the Supreme Court relating thereto. 72. (1.) When the Court of Appeal has given judgment on any appeal, any party may deposit the order of the Court of Appeal, or an office copy thereof, with the registrar : and the registrar shall file such order or copy, and shall transmit a copy thereof to the judge : and such order shall have the same effect as if it had been a decision of the judge. (2.) If such order has the effect of an award, decision, or order in the matter in favour of any party, such order shall be served and recorded, and may be proceeded on, in the same manner as if it had been an award, decision, or order of the judge. (3.) If such order be to the effect that an award be made or a decision given or order made in favour of any party, the judge shall make such award or give such decision or make such order accordingly. (4.) If such order directs or involves a re-hearing or further hearing of an arbitration or special case or other matter, the judge shall as soon as conveniently may be appoint a day and hour for such re-hearing or further hearing, and shall instruct the registrar to give notice thereof forthwith to the parties. APPENDIX A 319 (5.) Generally the judge shall make such award or give such decision or make such order and give such directions and take or direct to be taken such proceedings in the matter, as may be necessary to give effect to the order of the Court of Appeal. In what Court Proceedings may be taken. 78. (1.) Any matter which under the Act or these rules is to be In what court done in a County Court, or by to or before the judge or registrar of a ^y 6 ^ taken County Court, shall be done in the County Court, or by to or before ^d, g c h e d. 2, the judge or registrar of the County Court, par. 11. (i) of the district in which all the parties concerned reside ; or (ii) if the parties concerned reside in different districts, (a) of the district in which the accident out of which the matter arose occurred ; or (6) in the case of any such workman as in paragraph 1 of Kule 39 mentioned, of the district in which the workman was last employed in the employment to the nature of which the disease was due ; or (c) if the accident out of which the matter arose occurred at sea, (1) of the district in which the ship shall be when the matter is to be done ; or (2) of the district comprising the port of registry of the ship; or (3) of the district in which the workman or the dependants of the workman by whom or on whose behalf the matter is to be done, or some or one of them, resides or reside ; without prejudice to any transfer in manner provided by these Rules. (2.) An application for an order for the detention of a ship may, Detention of subject to the provisions of the rules for the time being in force ships, under the Shipowners' Negligence (Remedies) Act, 1905, be made to 5Edw.7.c.lO. the judge of any court. Act > sect - n - (3.) Where proceedings by way of arbitration for the recovery of Proceedings compensation are taken against the persons giving security pursuant against to the Shipowners' Negligence (Remedies) Act, 1905, or section 11 of P er sons the Act and Rules 37 and 38, such proceedings may be commenced fecurfty (i) in the county court of the district in which all the parties con- 5Edw.7.c.lO. cerned reside; or Art.ieot.il. (ii) if the parties concerned reside in different districts, 320 THE WORKMEN'S COMPENSATION ACT, 1906 Filing of certified copy of memo- randum, &c. recorded in one court under Act, sched.2,par.9, before taking subsequent proceedings in another court. Transfer. Order VIIL, Eule 9. (a) in the county court of the district in which the accident occurred ; or (6) if the accident occurred at sea, (1) in the county court of the district in which the vessel is or was detained, or in which the order for detention was made or applied for ; or (2) in the county court of the district in which the workman or the dependants of the workman, or some or one of them, resides or reside ; without prejudice to any transfer in manner provided by these Rules. Proceedings in one Court as to Subject-matter of Award, Memoran- dum, or Certificate recorded in another Court. 74. Where an award, or a memorandum under paragraph 9 of the second schedule to the Act, or a certificate under sub- section 4 of section 1 of the Act, has been recorded in any court, and any party desires to take any subsequent proceedings with reference to the subject-matter of such award, memorandum, or certificate in any other court, he shall before taking such proceedings obtain from the registrar of the first-mentioned court a certified copy of such award, memorandum, or certificate, and shall file the same in the court in which he desires to take proceedings, and the registrar of such last- mentioned court shall record the same as if it had been an award made in the court. Transfer of Proceedings. 75. If the judge is satisfied by any party to any matter under the Act pending in his court that such matter can be more conveniently proceeded with in any other court in England, Scotland, or Ireland, he may order such matter to be transferred to such other court ; and thereupon the registrar shall forthwith transmit by registered post to the registrar of the court to which such matter is transferred all original documents filed in such matter, and a certified copy of all records made with reference to such matter, and shall transfer to such last-mentioned court any money invested in his name as registrar : and thenceforth such matter shall be proceeded with in the court to which it is transferred in the same manner as if it had originally been commenced therein. The provisions of Order VIII., Eule 9, shall apply to any such transfer or application for a transfer. Transfer of Money paid into Court. Transfer of 76. (1.) The provisions of the last preceding rule shall apply to the money paid transfer of money paid into court from one court to another pursuant Act Sched. 1 to paragraph 6 of the first schedule to the Act or otherwise, and to par. 6. proceedings with respect to the application of such money. APPENDIX A 321 (2.) Where any money ordered to be transferred from one court to another is invested in the Post Office Savings Bank in the name of the registrar, such money shall be transferred into the name of the registrar of the court to which the money is ordered to be transferred in accordance with regulations to be made by the Postmaster- General with the consent of the Treasury : and where any money ordered to be transferred is not so invested it shall forthwith be so invested, and shall when invested be transferred in accordance with this rule. Filing and Service of Documents and Notices. 77. (1.) Where any document is to be filed with the registrar under these Eules, that document may be so filed by delivering it at the office of the registrar, or by sending it by post addressed to the registrar at his office. (2.) Where any document is to be so filed, there shall be filed with the original document as many copies of the document as there are persons to whom copies of the document or any part thereof are to be sent by the registrar, and in addition a copy for the use of the judge or arbitrator. (3.) Where any document is under these Rules to be sent to any person by the registrar, that document may be sent by post. (4.) Any proceeding, document, or notice which is under these Rules to be served on any party may be served on such party by the opposite party or his solicitor ; and where no special provision as to the mode of service is made by these Rules, any such proceeding, document, or notice may be served on such party, or where he acts by a solicitor, on his solicitor, in manner provided by sub-sections Act, sect. 2 3 and 4 of section 2 of the Act with reference to service of notice in sub-sects. 3, 4. respect of an injury; and the provisions of Order LIV., Rule 2, shall Order LIV., apply to the service of any such proceeding, document, or notice. ^ u ^ e 2 * Procedure Generally. 78. The provisions of Order XXIII., Rule 6, Order LIV., Rules Provisions as 1 and 3 to 6, and Order VII., Rule 40, as to parties acting by to parties solicitors, and as to substituted service and notice in lieu of service org an d shall apply to proceedings under the Act. as to substi- tuted service and notice in lieu of service. Order XXIII., Rule 4; Order LIV., Rules 1, 3 to 6; Order VII., Rule 40. 21 322 THE WORKMEN'S COMPENSATION ACT, 1906 Proceedings where Crown a party. Service of documents, &c. Procedure, where not otherwise provided for. 79. (1.) In any proceedings under the Act or these Rules arising out of an injury to a workman employed by or under the Crown, in which, if the employer were a private person, such employer would be a necessary party, the head of the department by in or under which the workman was employed, or, where the department is administered by a Board or by Commissioners, such Board or Com- missioners, shall be made a party under his or their official title as representing the Crown. (2.) In any such case any proceeding, document, or notice to be served on the head of the department, or on the Board or Com- missioners, may be served on the permanent secretary to the depart- ment, subject to the provisions of these rules as to service on parties acting by solicitors. 80. Where any matter or thing is not specially provided for under these Eules, the same procedure shall be followed and the same pro- visions shall apply, as far as practicable, as in a similar matter or thing under the County Courts Act, 1888, and the rules made in pur- suance of that Act. Record of proceedings before judge or arbitrator. Special register. Form 67. Record of Proceedings. Special Register. 81. Proceedings under the Act before the judge or an arbitrator appointed by him shall be recorded in the books of the court in the manner in which other proceedings in the court are recorded ; and the registrar shall also keep a special register for the purposes of the Act, in which he shall record (1.) A memorandum of every application made to the judge for the settlement of any matter by arbitration ; (2.) A memorandum of every appointment of an arbitrator to settle any such matter made by the judge ; (3.) A memorandum of every proceeding taken in any arbitration before the judge or an arbitrator appointed by him prior to the award ; (4.) A memorandum of every appointment of a medical referee by the judge or arbitrator, and of his report, and if a medical referee is summoned or requested to attend any proceeding in the arbitration, of such summons or request and attendance ; (5.) A memorandum of every award made by the judge, or by an arbitrator appointed by him ; (6.) A memorandum of every special case submitted to the judge, and of the proceedings and order thereon ; (7.) A memorandum of every judgment given by the Court of Appeal on any appeal ; APPENDIX A 323 (8.) A memorandum of every application to the court for the examination of an employer pursuant to Bule 35, paragraph 2, and of the order and proceedings thereon; (9.) A memorandum of every application to the court for the detention of a ship pursuant to section 11 of the Act and Rules 87 and 88, and of the order and subsequent proceedings thereon ; (10.) A memorandum of every application to the judge for the appointment of an arbitrator in case of the death or refusal or inability to act of an arbitrator agreed on by the parties, and of the proceedings and order thereon ; (11.) A copy of every memorandum sent to the registrar pursuant to paragraph 9 of the second schedule to the Act, and of the report (if any) of the medical referee annexed thereto, with a note stating whether such memorandum was recorded without further proof, or after inquiry, or by order of the judge ; (12.) If such memorandum is recorded after inquiry, a memoran- dum of the inquiries made and of the result thereof ; (13.) If such memorandum is recorded by order of the judge, a memorandum of the application to the judge, and of the order made thereon ; (14.) If in the case of a memorandum of an agreement the regis- trar refers the matter to the judge, a memorandum of such reference, and of the directions of the judge, and the subsequent proceedings and order thereon ; (15.) A memorandum of the result of every taxation or review of taxation of costs under any such memorandum, or under any award or order ; (16.) A memorandum of every application to rectify the register in respect of any memorandum, and of the proceedings and order thereon ; (17.) A memorandum of every application or report with reference to the removal of the record of a memorandum of an agreement from the register, and of the subsequent proceedings and order thereon ; (18.) A memorandum of every application to the judge or arbi- trator, under paragraph 14 of the second schedule to the Act, to determine the amount of costs to be paid to a solicitor or agent, and of the proceedings and order thereon, and of the result of any taxation or review of taxation under such order ; (19.) A copy of every certificate under subsection 4 of section 1 of the Act given by the court or sent to the registrar from any other court ; 324 THE WORKMEN'S COMPENSATION ACT, 1906 (20.) A memorandum of every proceeding taken in the court for the enforcement of any award, order, memorandum, or certificate, and of the result of such proceeding ; (21.) A memorandum of every application to refer a matter to a medical referee pursuant to paragraph 15 of the first schedule of the Act, and of the order and subsequent proceedings thereon ; (22.) A memorandum of every application to the court for the suspension of the right to compensation or to take or prosecute any proceedings under the Act in relation to compensation, or of the right to weekly payments, and of the proceedings and order thereon ; (23.) A memorandum of every sum paid into court pursuant to paragraph 5 of the first schedule to the Act, or under any award memorandum, or certificate ; (24.) A memorandum of every application made to the court with reference to any such sum, and of every order made on such application, and of the manner in which such sum is invested, applied, or disposed of ; (25.) A memorandum of every application for the payment of any weekly payment into court, and of the proceedings and order thereon, and of the directions given as to the payment out or application of any such weekly payment ; (26.) A memorandum of every application for variation of an order of the court as to the apportionment, investment, or application of any sum paid as compensation, and of the proceedings and order thereon ; (27.) A memorandum of every application to refer a matter to a medical referee pursuant to paragraph 18 of the first schedule to the Act in the case of a workman intending to cease to reside in the United Kingdom, and of the order and the proceedings thereon ; and of every certificate and declaration of identity and request for payment received from such workman, and of the proceedings thereon ; (28.) A memorandum of every application to set aside or vary an award or order under Eule 70, and of the proceedings and order thereon. (29.) A memorandum of every certified copy given pursuant to Rule 74, or a copy of every certified copy filed pursuant to that rule ; (30.) A memorandum of every application for transfer, and of the order thereon, and the proceedings under such order ; APPENDIX A 325 (81.) A memorandum of the transmission of documents and certified copies pursuant to paragraph 11 of Rule 37 or para- graphs (iii) or (iv) of Rule 38; (32.) A memorandum of the transfer of any money paid into court to any other court ; (83.) The like memorandum as to every matter transferred, o? document or certified copy transmitted or money transferred to the court, as would have been recorded as to such matter, document, or money if it had been originally commenced and prosecuted in or transmitted to or paid into the court ; (34.) A memorandum of any other matter which the judge shall order to be recorded with reference to any matter brought into or proceeding taken in the court under the Act. References to Medical Referees. 82. (1.) Where a medical referee is summoned as an assessor, References to or any matter is referred to a medical referee, such referee shall medical be summoned, or the matter shall be referred subject to and in referees - accordance with any regulations made by the Secretary of State and the Treasury ; and any such regulations shall so far as they affect 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, be deemed to be Rules of Court, and shall have effect accordingly. (2.) In particular, if such regulations as in the preceding paragraph References mentioned provide that an employer or a workman who desires any matter to be referred to a medical referee under paragraph (/) of sub- section 1 of section 8 of the Act shall apply to the registrar of a county court for the matter to be so referred, it shall be the duty of the registrar to refer the same in accordance with such regulations. (3.) The registrar shall keep a record in the form prescribed by Record and regulations made by the Secretary of State of all cases in which returns as to medical referees are summoned as assessors or matters are referred references, to medical referees, and shall forward a copy of the same to the Secretary of State at such times as may be prescribed by such regulations. Matters, how distinguished. 83. Every matter brought into the court under the Act shall be Matters, intituled in the matter of the Act, and shall be distinguished by how distin- a separate number ; and all documents filed and subsequent pro- 8 msned ceedings taken in the court with reference to such matter shall be 326 THE WORKMEN'S COMPENSATION ACT, 1906 intituled in like manner, and shall be distinguished by the same number; and the entries made in the special register with respect to each such matter shall be entered together, and shall be kept separate from the entries with respect to any other matter. Forms in Appendix or like forms may be used. Forma. 84. The forms in the Appendix, where applicable, and where they are not applicable forms of the like character, with such variations as the circumstances may require, may be used in proceedings under the Act. APPENDIX B FORM 1. Application for Arbitration by Injured Workman with respect to the Compensation payable to him. In the County Court of holden at In the matter of the Workmen's Compensation Act, 1906. No. of Matter In the matter of an arbitration between A.B. of (address) (description) Applicant, and C.D. & Co., Limited, of (address) (description) Bespondent. 1. On the day of personal injury by accident arising out of and in the course of his employment was caused to A.B. a workman employed by C.D. & Co., Limited, [or by , a contractor with C.D. & Co., Limited, for the execution of work undertaken by them] . 2. A question has [or Questions have] arisen [here state the questions, specifying only those which have arisen; e.gJ] (a) as to whether the said A.B. is a workman to whom the above-mentioned Act applies : or (b) as to the liability of the said C.D. & Co., Limited, to pay compensation under the above-mentioned Act hi respect of the said injury : or (c) as to the amount [or duration] of the compensation payable by the said C.D. & Co., Limited, to the said A.B. under the above-mentioned Act in respect of the said injury. [or as the case may beJ] 3. An arbitration under the above-mentioned Act is hereby re- quested between the said A.B. and the said C.D. & Co., Limited, for the settlement of the said question [or questions] . 4. Particulars are hereto appended [or annexed] . 328 THE WORKMEN'S COMPENSATION ACT, 1906 PARTICULARS. 1. Name and address of appli- cant. 2. Name, place of business, and nature of business of res- pondent. 3. Nature of employment of applicant at time of accident, and whether employed under respondent or under a contractor with him. [If employed under a contractor who is not a respon- dent, name and place of business of contractor to be stated,] 4. Date and place of accident, nature of work on which work- man was then engaged, and nature of accident and cause of injury. 5. Nature of injury. 6. Particulars of incapacity for work, whether total or partial, and estimated duration of inca- pacity. 7. Average weekly earnings during the 12 months previous to the injury, if the applicant has been so long employed under the employer by whom he was immediately employed, or if not, during any less period during which he has been so employed. 8. Average weekly amount which the applicant is earning or is able to earn in some suitable employment or business after the accident. 9. Payment, allowance or benefit received from employer during the period of incapacity. 10. Amount claimed as com- pensation. APPENDIX B 329 PARTICULARS continued. 11. Date of service of statu- tory notice or accident on re- spondent, and whether given before workman voluntarily left the employment in which he was injured. [4 copy of the notice to be annexed.] 12. If notice not served, reason for omission to serve same. The names and addresses of the applicant and his solicitor are : Of the Applicant, Of his Solicitor, The name and address of the respondent to be served with this application are : Dated this day of (Signed) Applicant. [Or Applicant's Solicitor.] FORM 2. Application for Arbitration by or on behalf of Dependants of Deceased Workman, with respect to the Compensation payable in respect of the Injury to such Dependants, where Death has resulted from an injury to the Workman, and the Settlement of Questions as to who are Dependants, and the Apportionment and Application of such Compensation. In the County Court of holden at In the matter of the Workmen's Compensation Act, 1906. No. of Matter. 330 THE WORKMEN'S COMPENSATION ACT, 1906 In the matter of an arbitration between E.F. of (address) (description) Applicant, and C.D. & Co., Limited, of (address) (description) and G.H. of (address) (description) Kespondents. [or as the case may be ; see Rule 4.J 1. On the day of personal injury by accident arising out of and in the course of his employment was caused to A.B. , late of , deceased, a workman employed by C.D. & Co., Limited, [or by a contractor with C.D. & Co., Limited, for the execution of work undertaken by them,] and on the day of the death of the said A.B. resulted from the injury. 2. A question has [or questions have] arisen [here state the questions, specifying only those which have arisen; e.g.~\ (a) as to whether the said A.B. was a workman to whom the above-mentioned act applied ; or (6) as to the liability of the said C.D. & Co., Limited, to pay compensation under the above-mentioned Act to the dependants of the said A.B. in respect of the injury caused to them by the death of the said A.B. ; or (c) as to the amount of compensation payable by the said C.D. & Co., Limited, to the dependants of the said A.B. under the above-mentioned Act hi respect of the injury caused to them by the death of the said A.B. ; or (d) as to who are dependants of the said A.B. within the meaning of the above-mentioned Act ; or (e) as to the apportionment and application of the compensation payable by the said C.D. & Co., Limited, to the dependants of the said A.B. in respect of the injury caused to them by the death of the said A.B. [or as the case may 6e.] APPENDIX B 331 3. An arbitration under the requested between E.F. sentative of the said A.B. dependants of the said A.B. of the said A.B. Limited, and G.H. above-mentioned Act is hereby , the legal personal repre- , acting on behalf of the [or between E.F., a dependant ] and the said C.D. & Co. , who claims or may be entitled to claim to be a dependant of the said A.B. [or as the case may be ; see Rule 4.] for the settlement of the said question [or questions.] 4. Particulars are hereto appended [or annexed] . PARTICULARS. 1. Name and late address of deceased workman. 2. Name, place of business, and nature of business of respondent from whom compensation is claimed. 3. Nature of employment of deceased at time of accident, and whether employed under respon- dent or under a contractor with him. [If employed under a con- tractor who is not a respondent, name and place of business of contractor to be stated.] 4. Date and place of accident, nature of work on which deceased was then engaged, and nature of accident and cause of injury. 5. Nature of injury to deceased, and date of death. 6. Earnings of deceased during the 3 years next preceding the injury, if he had been so long in the employment of the employer by whom he was immediately employed, or if the period of his employment had been less than the said 3 years, particulars of his average weekly earnings dur- ing the period of his actual employment under the said employer. 332 THE WORKMEN'S COMPENSATION ACT, 1906 PARTICULARS continued. 7. Amount of weekly payments (if any) made to deceased under the Act, and of any lump sum paid in redemption thereof. 8. Name and address of appli- cant for arbitration. 9. Character in which appli- cant applies for arbitration, i.e., whether as legal personal repre- sentative of deceased or as a dependant, and if as a dependant, particulars showing how he is so. 10. Particulars as to depen- dants of deceased by whom or on whose behalf the application is made, giving their names and addresses, and descriptions and occupations (if any), and their relationship to the deceased, and if infants, their respective ages, and stating whether they were wholly or partially dependent on the earnings of the deceased at the time of his death. 11. Particulars as to any per- sons claiming or who may be entitled to claim to be depen- dants, but as to whose claim a question arises, and who are therefore made respondents, with their names, addresses, and descrip- tions and occupations (if any). 12. Particulars of amount claimed as compensation, and of the manner in which the applicant claims to have such amount apportioned and applied. 13. Date of service of statutory notice of accident on respondent from whom compensation is claimed, and whether given be- fore deceased voluntarily left the employment in which he was injured. [A copy of the notice to be annexed.] 14. If notice not served, reason for omission to serve same. APPENDIX B The names and addresses of the applicant and his solicitor are : Of the Applicant, Of his Solicitor, The names and addresses of the respondents to be served with this application are : C.D. & Co., Limited. G.H., Dated this day of (Signed) Applicant. [Or Applicant's Solicitor.] FORM 3. Application for Arbitration as to who are Dependants, or as to the Amount payable to each Dependant, where the total amount Payable as Compensation to the Dependants of a Deceased Workman has been agreed or ascertained. In the County Court of holden at In the matter of the Workmen's Compensation Act, 1906. No. of Matter In the matter of an Arbitration between E.F. of (address) (description) Applicant and C.D. & Co., Limited, of (address) (description) and G.H., of (address) (description) J.K, of (address) (description) and L.M., of (address) (description) Respondents. [or as the case may be ; see Rule 5.] 334 THE WORKMEN'S COMPENSATION ACT, 1906 1. On the day of personal injury by accident arising out of and in the course of his employment was caused to A.B. , late of , deceased, a workman employed by C.D. & Co., Limited, [or by , a contractor with C.D. & Co., Limited, for the execution of work undertaken by them,] and on the day of the death of the said A.B. resulted from the injury. 2. The amount of compensation payable by the said C.D. & Co., Limited, to the dependants of the said A.B. under the above-mentioned Act in respect of the injury caused to them by the death of the said A.B. has been agreed [or ascertained], but a question has [or questions have] arisen [here state the questions, specifying only those which have arisen; e.g.] (a) as to who are dependants of the said A.B. within the meaning of the above-mentioned Act ; or (6) as to the apportionment and application of the compensation payable to the dependants of the said A.B. [or as the case may be.] 3. An arbitration under the above-mentioned Act is hereby requested between E.F. , the legal personal representative of the said A.B. , acting on behalf of N.O. P.K. &c., dependants of the said A.B. [or between E.F. N.O. P.R. &c., dependants of the said A.B. ], and the said C.D. & Co., Limited, and G.H. J.K. and L.M. , who are or claim or may be entitled to claim to be dependants of the said A.B. [or as the case may be ; see Rule 5.] for the settlement of the said question [or questions.] 4. Particulars are hereto appended [or annexed.] PARTICULARS. 1. Name and late address of deceased workman. 2. Name and place of business of employer by whom com- pensation has been paid or is payable. 3. Date of accident to deceased, and date of death. APPENDIX B 335 PARTICULARS continued. 4. Agreed or ascertained amount of compensation to be paid to dependants of deceased. 5. Particulars as to whether the compensation money is still payable by the employer or has been paid by him, and if so, to whom, and in whose hands it now is. 6. Character in which the ap- plicant applies for arbitration, i.e., whether as legal personal representative of deceased or as a dependant, and if as a depen- dant, particulars showing how he is so. 7. Particulars as to the depen- dants or persons claiming to be dependants by whom or on whose behalf the application is made, giving their names and addresses, and descriptions and occupations (if any), and their relationship to the deceased, and if infants, their respective ages, and stating whether they were or claim to have been wholly or partially dependent on the earnings of the deceased at the time of his death. 8. The like particulars as to any dependants who are made respondents. [NOTE. If there is a legal personal representative, and he is not the applicant, he must be made a respondent.] 9. Particulars as to any persons claiming or who may be entitled to claim to be dependants, but as to whose claim a question arises, and who are therefore made respondents, with their names, addresses, descriptions, and occupations (if any). 336 THE WORKMEN'S COMPENSATION ACT, 1906 PARTICULARS continued. 10. Particulars of the manner in which the applicant claims to have the amount of compensa- tion apportioned and applied. The names and addresses of the applicant and his solicitor are Of the Applicant, Of his Solicitor, The names and addresses of the respondents to be served with this application are : C.D. & Co., Limited G.H. I.K. L.M. [or as the case may be.] Dated this day of (Signed) Applicant. [Or Applicant's Solicitor.] FORM 4. Application for Arbitration with respect to the Compensation payable in respect of expense of Medical Attendance and Burial, where Deceased Workman leaves no Dependants. In the County Court of holden at In the matter of the Workmen's Compensation Act, 1906. No of Matter In the matter of an Arbitration between E.F., of (address) (description) Applicant, and C.D. & Co., Limited, of (address) (description) and G.H., of (address) (description) ^Respondents. APPENDIX B 337 1. On the day of personal injury by accident arising out of and in the course of his employment was caused to A.B. , late of , deceased, a workman employed by C.D. & Co., Limited, [or by , a contractor with C.D. & Co., Limited, , for the execution of work undertaken by them,] and on the day of the death of the said A.B. resulted from the injury. 2. The said A.B. left no dependants within the meaning of the above-mentioned Act. 8. A question has [or questions have] arisen [here state the questions, specifying only those which have arisen; *]- (a) as to whether the said A.B. was a workman to whom the above-mentioned Act applied ; or (6) as to the liability of the said C.D. & Co., Limited, to pay compensation under the above-mentioned Act in respect of the reasonable expenses of the medical attend- ance on and the burial of the said A.B. ; or (c) as to the amount of compensation payable by the said C.D. & Co., Limited, under the above-mentioned Act in respect of the reasonable expenses of the medical attend- ance on and the burial of the said A.B. ; or (d) as to the apportionment and application of the compensation payable by the said C.D. & Co., Limited, under the above-mentioned Act in respect of the reason- able expenses of the medical attendance on and the burial of the said A.B. [or as the case may be.] 4. An arbitration under the above-mentioned Act is hereby re- quested between E.F. and the said C.D. & Co., Limited, and G.H. for the settlement of the said question [or questions]. 5. Particulars are hereto appended [or annexed] . PARTICULARS. 1. Name and late address of deceased workman. 2. Name, place of business, and nature of business of re- spondent from whom compensa- tion is claimed. 22 338 THE WORKMEN'S COMPENSATION ACT, 1906 PARTICULARS continued. 3. Nature of employment of deceased at time of accident, and whether employed under respondent or under a contractor with him. [// employed under a contractor who is not a re- spondent, name and place of business of contractor to be stated.] 4. Date and place of accident, nature of work on which de- ceased was then engaged, and nature of accident and cause of injury. 5. Nature of injury to deceased, and date of death. 6. Name and address of appli- cant for arbitration. 7. Character hi which appli- cant applies for arbitration, i.e., whether as legal personal repre- sentative of deceased or as a per- son to whom expenses in respect of which compensation is payable are due ; and if the latter, par- ticulars must be given of the cir- cumstances under which the expenses are claimed to be due to the applicant. 8. Particulars as to any other persons who claim that expenses in respect of which compensation is payable are due to them, and who are therefore made re- spondents, with their names and addresses. 9. Particulars of amount claimed as compensation, and of the manner in which the applicant desires such amount to be appor- tioned and applied. APPENDIX B 339 10. Date of service of statutory notice of accident on respondent from whom compensation is claimed, and whether given before deceased voluntarily left the employment in which he was injured. [A copy of the notice to be annexed.] 11. If notice not served, reason for omission to serve same. The names and addresses of the applicant and his solicitor are : Of the Applicant, Of his Solicitor, The names and addresses of the respondents to be served with this application are : C.D. & Co., Limited. G.H. Dated this day of (Signed) Applicant. [Or Applicant's Solicitor.] FORM 5. Application for Arbitration urith respect to the Review, Termination, Diminution, Increase, or Redemption of a Weekly Payment. In the County Court of holden at In the matter of the Workmen's Compensation Act, 1906. No. of Matter In the matter of an Arbitration between C.D. & Co., Limited, of (address) (description) Applicants, and A.B., of (address) (description) \oras the case may be; see Act, Sche . 1, pars. 16, 17.] 340 THE WORKMEN'S COMPENSATION ACT, 1906 An arbitration under the Workmen's Compensation Act, 1906, is hereby requested between C.D. & Co., Limited. and A.B. [or as the case may be ; see Act, Sched. 1, pars. 16, 17.] with respect to the review and termination [or diminution, increase, or redemption, as the case may be] of the weekly payment payable to the said A.B. under the said Act in respect of personal injury caused to him by accident arising out of and in the course of his employment. Particulars are hereto appended [or annexed] . PARTICULARS. 1. Name and address of in- jured workman. 2. Name and place of business of employer by whom compensa- tion is payable. 3. Date and nature of acci- dent. 4. Date of agreement, decision, award, or certificate fixing weekly payment, amount of such pay- ment, and date from which it commenced. 5. Belief sought by applicant, whether termination, diminution, increase, or redemption. 6. Grounds on which termina- tion, diminution, or increase is claimed. The names and addresses of the applicants and their solicitors are : Of the Applicants, Of their Solicitor, The name and address of the respondent to be served with this application are : Dated this day of (Signed) [Or Applicants. Applicants' Solicitor]. APPENDIX B 341 FORM 6. Application for Arbitration by an Injured Master, Seaman, Appren- tice, or Pilot, ivith respect to the Compensation payable to him. In the County Court of holden at In the matter of the Workmen's Compensation Act, 1906. No. of Matter In the matter of an Arbitration between A.B. of (address) (description) Applicant, and The owner of the ship " Respondents. 1. On the day of personal injury by accident arising out of and in the course of his employment was caused to A.B. , the master of the ship " " [or a seaman or an apprentice to the sea service or an apprentice in the sea-fishing service and a member of the crew of the ship " "] [or a pilot employed on the ship 2. A question has [or Questions have] arisen [here state the questions, specifying only those which have arisen, e.g.] (a) as to whether the said A.B. is a workman within the meaning of the above-mentioned Act ; or (o) as to the liability of the owners of the said ship to pay com- pensation under the above-mentioned Act in respect of the said injury ; or (c) as to the amount [or duration] of the compensation payable by the owners of the said ship to the said A.B. under the above-mentioned Act in respect of the said injury. [or as the case may be.] 3. An arbitration under the above-mentioned Act is hereby re- quested between the said A.B. and the owners of the said ship for the settlement of the said question [or questions] . 4 Particulars are hereto appended [or annexed] . 342 THE WORKMEN'S COMPENSATION ACT, 1906 PARTICULARS. 1. Name and address of ap- plicant. 2. Name of ship of which applicant was master [or of the crew of which applicant was a member or on which applicant was employed as pilot] at time of accident, and port of registry. 3. Nature of employment time of accident. at 4. Date and place of accident, nature of work on which appli- cant was then engaged, and nature of accident and cause of injury. 5. Nature of injury. 6. Particulars of incapacity for work, whether total or partial, and estimated duration of in- capacity. 7. Average weekly earnings during the 12 months previous to the injury, if the applicant has been so long employed under the same owners, or if not, during any less period during which he has been so employed. 8. Average weekly amount which the applicant is earning or is able to earn in some suitable employment or business after the accident. 9. Payment, allowance, or bene- fit received from employer during the period of incapacity. 10. Amount claimed as com- pensation. APPENDIX B 34a PARTICULARS continued. 11. Date of service of statutory notice of accident, and whether given before applicant voluntarily left the employment in which he was injured. [A copy of the notice to be annexed.] 12. If notice not served, reason for omission to serve same. The names and addresses of the applicant and his solicitor are : Of the Applicant, Of his Solicitor, The name and address of the person to be served with this applica- tion as representing the owners of the ship are : [State name and address of managing owner or manager, or of master of ship. See Rule 36 (6).] Dated this day of (Signed) Applicant. [Or Applicant's Solicitor.] FORM 7. Application for Arbitration by or on behalf of Dependants of Deceased Master, Seaman, Apprentice, or Pilot. In the County Court of holden at In the matter of the Workmen's Compensation Act, 1906. No. of Matter In the matter of an Arbitration between E.F. of (address] (description) Applicant, and The owners of the ship " and G.B. of (address) (description) Respondents. [or as the case may be ; see Rule 4.] 344 THE WORKMEN'S COMPENSATION ACT, 1906 1. On the day of personal injury by accident arising out of and in the course of his employment was caused to A.B. , late of , deceased, the master of the ship " " [or a seaman] [or an apprentice to the sea service or an apprentice in the sea-fishing service] and a member of the crew of the ship " " [or a pilot employed on the ship " "], and on the day of the death of the said A.B. resulted from the injury. [or 1. The ship " " which left the port of on or about the day of , was lost with all hands on or about the day of [or was last heard of on or about the day of , and is believed to have been lost with all hands.] When the said ship left the said port A.B. , late of , was the master thereof [or a seaman] [or an apprentice to the sea service or an apprentice in the sea-fishing service] and a member of the crew of the said ship [or a pilot employed on the said ship.] 2. A question has [or Questions have] arisen [here state the questions, specifying only those which have arisen; e.g.] (a) as to whether the said A.B. was a workman within the meaning of the above-mentioned Act ; or (6) as to the liability of the owners of the said ship to pay compensation under the above-mentioned Act to the depen- dants of the said A.B. in respect of the injury caused to them by the death of the said A.B. ; or (c) as to the amount of compensation payable by the owners of the said ship to the dependants of the said A.B. under the above-mentioned Act in respect of the injury caused to them by the death of the said A.B. ; or (d) as to who are dependants of the said A.B. within the meaning of the above-mentioned Act ; or (e) as to the apportionment and application of the compensation payable by the owners of the said ship to the dependants of the said A.B. in respect of the injury caused to them by the death of the said A.B. [or as the case may be.] 3. An arbitration under the above-mentioned Act is hereby requested between E.F. , the legal personal representative of the said A.B. [or between E.F. , a dependant of the said A.B. ] and the owners of the said ship, and G.B. , APPENDIX B 345 who claims or may be entitled to claim to be a dependant of the said A.B. [or as the case may be ; see Rule 4] for the settlement of the said question [or questions] . 4. Particulars are hereto appended [or annexed]. PARTICULARS. 1. Name and late address of master, seaman, apprentice or pilot. 2. Name of ship of which deceased was master [or of the crew of which deceased was a member or on which the deceased was employed as a pilot] at time of accident or loss of ship, and port of registry. 3. Nature of employment at time of accident or loss of ship. 4. Date and place of accident, nature of work on which deceased was then engaged, and nature of accident and cause of injury [or date and place when and where ship was lost or is deemed to have been lost] . 5. Nature of injury to deceased and date of death [or date when ship was lost or is deemed to have been lost.] 6. Earnings of deceased during the 3 years next preceding the injury or date of loss, if he had been so long employed under the same owners, or if the period of his employment had been less than the said 3 years, parti- culars of his average weekly earn- ings during the period of actual employment under the said owners. 7. Amount of weekly payments (if any) made to deceased under the Act, and of any lump sum paid in redemption thereof. 346 THE WORKMEN'S COMPENSATION ACT, 1906 8. Name and PARTICULARS continued. address of applicant for arbitration. 9. Character in which appli- cant applies for arbitration, i.e., whether as legal personal repre- sentative of deceased or as a dependant, and if as a dependant, particulars showing how he is so. 10. Particulars as to the depen- dants of deceased by whom or on whose behalf the application is made, giving their names and addresses, and descriptions and occupations (if any), and their relationship to the deceased, and if infants, their respective ages, and stating whether they were wholly or partiaDy dependent on the earnings of the deceased at the time of his death. 11. Particulars as to any persons claiming or who may be entitled to claim to be depen- dants, but as to whose claim a question arises, and who are therefore made respondents, with their names, addresses, and descriptions and occupations (if any). 12. Particulars of amount claimed as compensation, and of the manner in which the appli- cant claims to have such amount apportioned and applied. 13. Date of service of statutory notice of accident, and whether given before deceased voluntarily left the employment in which he was injured. [A copy of the notice to be annexed.] 14. If notice not served, reason for omission to serve same. APPENDIX B'> 347 The names and addresses of the applicant and his solicitor are : Of the Applicant, Of his Solicitor, The names and addresses of the respondents to be served with this application are : As representing the owners of the ship [State name and address of managing owner or manager, or of master of ship. See Rule 36 (6).] and G.B., Dated this day of (Signed) Applicant. [Or Applicant's Solicitor.] FORM 8. Application for Arbitration where Security has been given on behalf of the Owners of a Ship under Section 11. In the County Court of holden at In the matter of the Workmen's Compensation Act, 1906. No. of Matter In the matter of an Arbitration between A.B. of (address) (description) Applicant, and (names and addresses of persons giving security) [Respondents. 1. On the day of personal injury by accident arising out of and in the course of his employment was caused to A.B. , of , and the said A.B. claims that the owners of the ship " are liable under the Workmen's Compensation Act, 1906, to pay compensation in respect of the said injury. 2. The respondents have given security to abide the event of any proceedings that may be instituted in respect of the said injury, and to pay such compensation and costs as may be awarded thereon. 348 THE WORKMEN'S COMPENSATION ACT, 1906 3. A question has [or questions have] arisen [here state the questions, specifying only those which have arisen, e.g.~\ (a) as to whether the said A.B. is a workman to whom the above-mentioned Act applies ; or (b) as to the liability of the owners of the said ship to pay com- pensation under the above-mentioned Act in respect of the said injury ; or (c) as to the amount [or duration] of the compensation payable to the said A.B. under the above-mentioned Act in respect of the said injury. [or as the case may be.] 4. An arbitration under the above-mentioned Act is hereby re- quested between the said A.B. and the respondents for the settlement of the said question [or questions]. 5. Particulars are hereto appended [or annexed]. PARTICULARS. [Here insert particulars of circumstances under which the applica- tion is made, and of the relief or order which the applicant claims, adapting the particulars in the preceding forms to the circumstances of the case.] The names and addresses, &c. [as in Form 1.] NOTE. This form to be adapted as required to an application for arbitration as between the dependants of a deceased workman and the persons giving security. FORM 9. Application for Arbitration by Workmen disabled by or suspended on account of having contracted Industrial Disease coming within Section 8. In the County Court of holden at In the matter of the Workmen's Compensation Act, 1906. No. of Matter APPENDIX B 349 In the matter of an Arbitration between A.B. of (address) (description) Applicant, and C.D. & Co., Limited, of (address) (description) ^Respondent. 1. On the day of Mr. , the certifying surgeon appointed under the Factory and Workshop Act, 1901, for the district of [or Mr. , one of the medical referees appointed by the Secretary of State for the purposes of the Workmen's Compensation Act, 1906,] certified that A.B. of was suffering from , a disease coming within section 8 of the Workmen's Compensation Act, 1906, and was thereby disabled from earning full wages at the work at which he was employed. [Or 1. On the day of A.B of was in pursuance of special rules [or regulations] made under the Factory and Workshop Act, 1901, suspended from his usual employment on account of his having contracted , a disease coming within section 8 of the Workmen's Compensation Act, 1906.] 2. The said A.B. alleges that the above- mentioned disease is due to the nature of his employment in [describe employment], and that he was last employed in such employment within the twelve months previous to the date of disablement or suspension by C.D. & Co., Limited, of 3. A question has [or questions have] arisen [here state the questions, specifying only those which have arisen, e.g.] (a) as to whether the said A.B. is a workman to whom the Workmen's Compensation Act, 1906, applies ; or (b) as to the liability of the said C.D. & Co., Limited, to pay compensation under the Workmen's Compensation Act, 1906, in respect of the said disease [or suspension] ; or (c) as to whether the said disease was in fact contracted whilst the said A.B. was in the employment of the said C.D. and Co., Limited, ; or (d) as to whether the said disease is due to the nature of the employment of the said A.B. under the said C.D. & Co., Limited, ; or 350 THE WORKMEN'S COMPENSATION ACT, 1906 (e) as to the amount [or duration] of the compensation pay- able by the said C.D. & Co., Limited, to the said A.B. under the Workmen's Com- pensation Act, 1906, in respect of the said disease, [or as the case may be.] 4. An arbitration under the above-mentioned Act is hereby requested between the said A.B. and the said C.D. & Co., Limited, for the settlement of the said question [or questions] . 5. Particulars are hereto appended [or annexed] . PARTICULARS. 1. Name and address of appli- cant. 2. Name, place of business, and nature of business of re- spondents. 3. Nature of employment of applicant under respondents to which the disease was due. 4. Nature of disease. 5. Date of disablement or sus- pension. 6. Name and addresses of all other employers by whom appli- cant was employed in the same employment during the 12 months previous to date of disablement or suspension. 7. Particulars of incapacity for work, whether total or partial, and estimated duration of inca- pacity. 8. Average weekly earnings during the 12 months previous to date of disablement or sus- pension, if the applicant has been so long employed under respondents, or if not, during any less period during which he has been so employed. 9. Average weekly amount which the applicant is earning or is able to earn in some suit- able employment or business. APPENDIX B 351 PARTICULARS con tinned. 10. Payment, allowance, or benefit received from employer during period of incapacity. 11. Amount claimed as com- pensation. 12. Date of service of statutory notice of disablement or suspen- sion on respondents. [A copy of the notice to be annexed.] 13. If notice not served, reason for omission to serve same. The names and addresses, of His Majesty's Justices of the Peace for the County of ,at in the said County, this day of , 19 . Signature of declarant. \ This is to be altered as the case requires where any declaration is made before a Borough Magistrate or Commissioner for Oaths. FORM C. Workmen's Compensation Act, 1906. Application for re-certification of a Scheme certified under the Act of 1897. If the scheme includes other employers and their workmen a separate application must be made by each employer and provision for administra- tion, &c., should be made in the scheme. Full name and address of employer Nature of employment Situation of works This application is made by the undersigned employer and five workmen. This scheme was certified on , under the Work- men's Compensation Act, 1897, the number of the certificate being , and was in force on 1st July, 1907. The total number of workmen in the employment is , and at a ballot, taken on , 190 , of such workmen voted in favour of the scheme now submitted, an abstract of which with a notification that any workman objecting to the same was at liberty to communicate his views to the Registrar of Friendly Societies, 28, Abingdon Street, London, S.W. (or as the case may be) was posted in a conspicuous position at all the works for a period of at least fourteen days immediately preceding the date of such ballot. The scheme includes (or does not include) other employers and their workmen. The following is a comparison of the provisions of the scheme now submitted with those of the scheme as certified and with those of the Act: APPENDIX D 427 SCALE OF COMPENSATION. By Act. By Scheme. As now submitted. As already certified. Where death results from the injury (a) If the workman leaves any de- pendants wholly dependent upon his earnings. (b) If the workman does not leave any such de- pendants, but leaves any de- pendants in part dependent upon his earnings. (c) If the workman leaves no de- pendants. (a) 150 to 300, subject to the conditions men- tioned in the Act. (b) Not exceeding (a). (a) (a) (c) Not exceeding 10. Where total incapacity for work results from the injury (a) All cases other than those under (6). b) If the workman is under 21 years of age and his average weekly earnings are less than 20s. (a) Not exceeding 50 per cent, of average earn- ings and not ex- ceeding 1 per week, but no compensation for first week if the incapacity lasts less than two weeks. (6) Not exceeding average earn- ings and not ex- ceeding 10s. per week, but no compensation for first week if the incapacity lasts less than two weeks. (a) (6) 428 THE WORKMEN'S COMPENSATION ACT, 1906 SCALE OF COMPENSATION. By Scheme. By Act. As now As already submitted. certified. Where partial incapa- As for total inca- city for work results from the injury. pacity, but not exceeding the difference be- tween average earnings before incapacity and average earnings while in receipt of compensation. * See regula- tion 6. The following are the benefits provided by the scheme other than those of the Act The contribution of the employer to the scheme is to be The contribution of the workmen to the scheme is to be The scheme contains provisions enabling a workman to withdraw from the same, but does not contain any obligation upon the work- men to join the scheme as a condition of their hiring. With this application are sent (a) Two printed copies of the scheme, each stitched in covers and signed by the applicants ; (6) An actuarial report on the scheme by Mr. (c) A statutory declaration in Form B verifying the result of the ballot, &c. ; (cC) A statement showing (1) the views of the general body of the workmen as to the scheme, and (2) how such views were ascertained ; and (e) The fee of* prescribed by the Regulations. The views of the employer are as follows : APPENDIX D The views of the workmen are as follows : 429 Date 1907. I Workmen. Employer. FORM D. Workmen's Compensation Act, 1906. Application for Certificate to partial amendment of Scheme. If the em- ployer is a body corporate the seal of the corporation should be affixed and duly witnessed in the space provided for the signature. Full name and address of employer Number of scheme Date of certificate to scheme , 19 . Application for certificate to an amendment of the above scheme is made by the undersigned employer and five workmen. With this application are sent (a) A printed copy of the scheme as certified, marked to show where the alterations occur and what they are ; (b) Two printed copies of the amendment, each signed by the applicants ; (c) A statement showing (1) the views of the general body of workmen and (2) how such views were ascertained ; and (d) The fee of 1 prescribed by the Eegulations. The views of the general body of workmen are as follows: Date , 19 . [ Workmen. Employer. If the em- ployer is a body corporate the seal of the corporation should be affixed and duly witnessed in the space provided for the signature. 430 THE WORKMEN'S COMPENSATION ACT, 1906 If the scheme includes other employers and their workmen a separate application must be made by each employer and provision for administra- tion, &c., should be made in the scheme. FORM E. Workmen's Compensation Act, 1906. Application for renewal of Certificate to Scheme. Full name and address of employer Nature of employment Situation of works This application is made by the undersigned employer and five workmen. The total number of workmen in the employment is , and the number contracting out under the scheme is The scheme includes (or does not include) other employers and their workmen. (If any modification of the scheme is now proposed, the following comparative statement should be filled in). The following is a comparison of the provisions of the scheme now submitted with those of the scheme as certified and with those of the Act: Where death results from the injury (a) If the workman leaves any de- pendants wholly dependent upon his earnings. (6) If the workman does not leave any such depen- dants, but leaves any dependants in part depen- dent upon his earnings. (c) If the workman leaves no depen- dants. SCALE OF COMPENSATION. By Act. (a) d150 to 300, sub- ject to the condi- tions mentioned in the Act. (6) Not exceeding (a). (c) Not exceeding 10. By Scheme. As certified. (a) Proposed alterations. (a) APPENDIX D 431 SCALE OF COMPENSATION. By Scheme. By Act. As Proposed certified. alterations. Where total incapacity for work results from the injury (a) All cases other (a) Not exceeding 50 (a) (a) than those under per cent, of aver- age earnings and not exceeding !L per week, but no compensation for first week if the incapacity lasts less than two weeks. (6) If the workman (6) Not exceeding (b) (&) is under 21 years average earnings of age and his average weekly and not exceeding 10s. per week, but earnings are less no compensation than 20s. for first week if the incapacity lasts less than two weeks. Where partial incapacity for work results from the injury. As fortotalincapacity, but not exceeding the difference be- tween average earnings before incapacity and average earnings while in receipt of compensation. Benefits other than those of the Act Contributions of employe] r... Contributions of workmen With this application are sent (a) Two printed copies of the scheme, each stitched in covers and signed by the applicants ; 432 THE WORKMEN'S COMPENSATION ACT, 1906 * The Regis- trar may require a ballot if he thinks fit. f See regula- tion 6. (6) An actuarial report on the working of the scheme during the preceding five years, by Mr. ; *(c) A statement showing (1) the views of the general body of the workmen as to the scheme, and (2) how such views were ascertained ; and (d) The fee off prescribed by the Regulations. The views of the employer are as follows : The views of the workmen are as follows : If the em- ployer is a body corporate the seal of the corporation should be affixed and duly witnessed in the space provided for the signature. ^Workmen. Employer. Date ,19 . FORM F. Workmen's Compensation Act, 1906. Form of Complaint of Workmen. Scheme No. To THB REGISTRAR OF FRIENDLY SOCIETIES, 28, ABINGDON STREET, LONDON, S.W. COMPLAINT is hereby made by or on behalf of the Workmen of (the Employer under the above-mentioned scheme) : 1. That the benefits conferred by the scheme no longer conform to the conditions stated in sub -section (1) of section 3 of the above- mentioned Act in the following respects : APPENDIX D 433 or, 2. That the provisions of the scheme are being violated in the following respects: or, 8. That the scheme is not being fairly administered in the following respects : or, 4. That the following reasons exist for revoking the certificate to the scheme : You are requested to examine into this complaint, and if satisfied that good cause exists for it, to revoke the certificate to the scheme unless the cause of complaint is removed. The undersigned have been authorised in the following manner to make the complaint on behalf of themselves and the other workmen of the said employer : -Workmen. Date ,19 28 APPENDIX E REGULATIONS, DATED JUNE 21, 1907, MADE BY THE SECRETARY OF STATE AND THE TREASURY AS TO THE DUTIES AND FEES OF CERTIFYING AND OTHER SURGEONS, AND AS TO REFERENCES TO, AND REMUNERATION AND EXPENSES OF, MEDICAL REFEREES, IN ENGLAND AND WALES, UNDER SECTION 8 OF THE ACT. I, the Right Honourable Herbert John Gladstone, one of His Majesty's Principal Secretaries of State, and We, the Lords Com- missioners of His Majesty's Treasury, in pursuance of the powers respectively conferred on us by the Workmen's Compensation Act, 1906, section 8, sub-sections (1) (f), (3) and (5), and section 10, sub- section (1), hereby make the following regulations : Definitions. 1. In these regulations (i.) " Act " means the Workmen's Compensation Act, 1906. (ii.) " Workman " means a workman as defined in section 13 of the Act. (iii.) " Certifying Surgeon " means either the certifying surgeon mentioned in sub-section (1) (i) of section 8 of the Act, or a medical practitioner appointed by the Secretary of State under sub-section (5) of section 8 to have the powers and duties of a certifying surgeon under the said section. (iv.) " Appointed Surgeon " means a surgeon having power, in pursuance of any special rules or regulations made under the Factory and Workshop Act, 1901, to suspend a work- man from employment in the process or processes specified in such rules or regulations. (v.) " Medical Referee " means a medical practitioner appointed by the Secretary of State to act as medical referee for the purposes of section 8 of the Act. 434 APPENDIX E 435 (vi.) The words " disease to which the Act applies " mean a disease mentioned in the third schedule to the Act or a disease or injury (not being an injury by accident) to which the provisions of section 8 of the Act have been extended by an Order made by the Secretary of State under sub- section (6) of that section. 2. Where a workman applies to a certifying surgeon for a certificate (hereinafter called " a certificate of disablement ") that he is suffering from a disease to which the Act applies, and is thereby disabled from earning full wages at the work at which he was employed, the certi- fying surgeon, on payment of the prescribed fee, and after obtaining the particulars specified in the schedule to these regulations and such Form 1. further information, if any, respecting the case as in the particular circumstances he may deem necessary, shall either proceed at once, if the application is made by the workman in person, to make a medical examination of the workman, or shall appoint forthwith a time and place for making such examination, and give notice thereof to the workman. Such notice, if given in writing, shall follow, as closely as may be, the form prescribed in the schedule. Form 2. 3. After personally examining the workman, the certifying surgeon shall either give the workman a certificate of disablement or shall certify that he is not satisfied that the workman is entitled to such certificate, and shall in either case deliver his certificate to the work- man. The certificate given shall be in the form prescribed in the schedule to these regulations. Forma 3 and 5. 4. Where, in pursuance of any special rules or regulations made under the Factory and Workshop Act, 1901, the certifying or appointed surgeon, after having personally examined a workman, suspends him from his usual employment on account of his having contracted any disease to which the Act applies, or where in the case of a workman applying to be suspended on account of his having con- tracted any such disease, the surgeon as aforesaid, after having personally examined such workman, refuses to order his suspension, he shall, on the application either of the employer or of the workman, and on payment of the prescribed fee, certify such suspension or refusal to suspend in accordance with the form prescribed in the schedule to these regulations, and shall deliver such certificate to the Forms 6 applicant. and 8. 5. Where a certificate of disablement is given or a workman is sus- pended, and the case is one in which, under the provisions of sub- section (2) of section 8 of the Act as extended by any Order of the Secretary of State made under sub-section (6) of the said section, the disease contracted by the workman will be deemed, unless the employer proves, or the certifying surgeon certifies, to the contrary, to have been due to the nature of the employment in the process in 436 THE WORKMEN'S COMPENSATION ACT, 1906 which at or immediately before the date of the disablement or sus- pension the workman was employed, the certifying surgeon, if he is of opinion that the disease contracted by the workman was not due to the nature of such employment, shall certify accordingly. Such certificate shall, where possible, be given simultaneously with, and included in, the certificate of disablement or the certificate (if any) of suspension, but may also be given separately on application by the See Forms 4 employer and on payment of the prescribed fee ; and in either case an< * 7 - shall follow the form prescribed in the schedule to these regulations. For the purposes of this regulation an appointed surgeon shall have the same powers and duties as a certifying surgeon. 6. A copy of any certificate given by a certifying or appointed surgeon under the foregoing regulations shall, together with any other documents relating to the case, be retained and kept by the surgeon ; and copies of any such certificate shall, on payment of the prescribed fee, be supplied by the surgeon to the employer and the workman. 7. The fees which the certifying and appointed surgeons shall be entitled to charge in respect of duties performed under section 8 of the Act shall be as follows : Fees payable by the Workman. (i.) For any certificate given under regulation 3 (a) in cases where the medical examination of the work- man is made by the surgeon in the performance of his duties under the Factory and Workshop Act, 1901, a fee of Is. ; (6) in all other cases, a fee of 5s., and where the work- man is unable to present himself for examination at the residence of, or other nearer place fixed by, the certifying surgeon, for every mile or portion thereof which the certifying surgeon is required to travel therefrom for the purpose of examining the workman, an additional fee of Is. (ii.) For any certificate of suspension or refusal to suspend, under regulation 4, when the medical examination of the workman is made in pursuance of any special rules or regulations under the Factory and Workshop Act, 1901, a fee of Is. (iii.) For a copy of any certificate obtained under regulation 6, a fee of Is. Fees payable by the Employer. (iv.) For any certificate of suspension or refusal to suspend, obtained by the employer under regulation 4, a fee of Is. APPENDIX E 437 (v.) Where the employer applies under regulation 5 for a certifi- cate that the disease contracted is not due to the nature of the employment, in respect of every such application (to include the certificate, if given), a fee of 2s. 6d. (vi.) For a copy of any certificate obtained under regulation 6, a fee of Is. References to Medical Referees. 8. Where an employer or workman is aggrieved by the action of a certifying or appointed surgeon in giving or refusing to give a certifi- cate of disablement or in suspending or refusing to suspend a workman, he may (a) if he is an employer, within seven days of the receipt of the notice of disablement or suspension required to be given under the Act, or, in a case of disablement, if the notice is not accompanied by the certificate of the surgeon, or a copy thereof, and the employer forthwith requires the workman to furnish him with a copy, within seven days of the receipt of such copy, or (6) if he is a workman, within seven days of the date on which the surgeon has refused to give him a certificate of dis- ablement or suspension, apply to the registrar of the county court for the district in which the workman was employed at the time of his examination by the surgeon, for the matter to be referred to a medical referee ; provided that it shall be within the discretion of the registrar, on good cause shown, to extend in any case by not more than seven days the period within which an application is required to be made. 9. (a) Any application under the foregoing regulation shall be F orms 9 made in writing, and shall state the grounds on which the reference and 10. is asked for, in accordance with the form prescribed in the schedule to these regulations, or as near thereto as may be. (b) The application shall be accompanied by the certificate or a copy of the certificate obtained from the surgeon by whose action the applicant is aggrieved, and by any available report or reports of any medical practitioner by whom the workman has been examined ; and if the applicant is an employer, by the notice of disablement or suspension served on him by the workman, and by an undertaking to pay any reasonable travelling expenses incurred by the workman in attending for examination by the medical referee. (c) The applicant shall also file with the registrar such copies of the application and other documents as aforesaid as may be necessary for the use of the medical referee and of the employer or workman, as the case may be, hereinafter referred to as the respondent, who together with the applicant is directly interested in the application. 438 THE WORKMEN'S COMPENSATION ACT, 1906 (d) In the event of any dispute as to the amount of the travelling expenses payable to the workman by the employer, the matter may be referred to the registrar, whose decision shall be final. 10. It shall be the duty of the registrar on receiving an application to satisfy himself that it is duly made in accordance with the fore- going regulations, and if it is not, to return it for amendment. If and when the application is in accordance with the regulations, he shall refer the matter forthwith to a medical referee, and shall for- ward to such medical referee by registered post one of the copies of the application and the other documents filed therewith, with an Form 11. or( j er O f reference according to the form prescribed in the schedule. Form 12. u t The registrar shall also make an order directing the workman to submit himself for examination by the medical referee. Before making such order the registrar shall inquire whether the workman is in a fit condition to travel for the purpose of examination, and if satisfied that he is in a fit condition shall by the order direct him to attend at such time and place as the referee may fix, and if satisfied that he is not in a fit condition to travel, shall so state hi the order of reference ; and it shall be the duty of the workman, on being served with the order, to submit himself for examination accordingly. 12. The registrar shall deliver or send by registered post to both parties a copy of the order of reference, and shall also send to the respondent copies of the other documents forwarded to the medical referee, and shall send to the workman a copy of the order directing him to submit himself for examination. 13. In the case of a reference under these regulations, the medical referee shall be one of those appointed by the Secretary of State for the county court circuit which includes the district in which the case arises, and if the circuit has been sub-divided and medical referees have been appointed for the sub-divisions, shall be one appointed for the sub-division comprising the aforesaid district. Provided that if any medical referee is or has been specially appointed by the Sec- retary of State, either for the circuit or otherwise, for the purpose of deciding on any specified case or class of cases in which a reference may be made under these regulations, the reference in any such case shall be made to the medical referee so appointed. Provided also that if the surgeon by whose action the applicant is aggrieved, has been appointed a medical referee, the reference shall not be made to him, but to such other medical referee as may be authorised to act. 14. The medical referee shall, on receipt of an order of reference duly signed by the registrar of a county court, together with copies of the documents required to be sent therewith, fix a time and a place for a personal examination of the workman, and shall send notice to the employer and workman accordingly. It shall be the duty of the workman, and, if the employer is the applicant, of the employer or a APPENDIX E 439 person duly authorised by him, to attend at the time and place fixed Forms 13 by the medical referee, and in the event of failure on the part of the and workman or employer or both to appear as required by this regulation, the medical referee shall decide on the matter referred to him forth- with upon such information as shall be available and with or without a personal examination. Provided that where the absence of the employer or his representative or of the workman is shown to the satisfaction of the medical referee to be unavoidable, or where the medical referee considers it necessary to apply for expert assistance as hereinafter provided, it shall be open to him to adjourn the inquiry on the reference and to resume it at such time and place as he may fix, after giving due notice to all parties concerned. 15. Except as otherwise provided by regulation 14, the medical referee shall, before deciding on the matter referred to him, make a personal examination of the workman, and shall consider any state- ments made or submitted by either party. 16. The medical referee shall, in the form prescribed in the Form 15. schedule to these regulations (subject to such additions and modifica- tions as the circumstances of the case may require) notify in writing his decision to the registrar of the county court, to the applicant and to the respondent. 17. The medical referee shall send to the Home Office at the end Form 16. of each quarter a statement (accompanied by any vouchers necessary), in the form prescribed in the schedule to these regulations, of the fees due to him for the quarter under these regulations. 18. The following fees and allowances are authorised to be paid to medical referees under these regulations : (i.) For deciding the matter referred to him in any reference and for all duties performed in connection therewith, 2 guineas. (ii.) Where in order to examine the workman the medical referee is compelled to travel to a place distant more than two miles from his residence or such other centre as may be prescribed by the Secretary of State, in addition to the above fee, 5s. for each mile beyond two, and up to ten, miles distant from such residence or centre, and thereafter Is. for each mile distant therefrom. (iii.) In cases involving special difficulty the medical referee may apply for special expert assistance which may be granted by the Secretary of State if he thinks fit, on such terms as to remuneration or otherwise, as he may with the sanction of the Treasury determine. 440 THE WORKMEN'S COMPENSATION ACT, 1906 19. In cases where a claim is made under regulation 18 (ii.) in respect of an examination of a workman, the medical referee, in submitting his quarterly statement under regulation 17, shall certify the distance of the place where the examination was made from his residence or other prescribed centre. 20. The registrar of a county court shall keep a record, in the form prescribed in the schedule, of all references made by him under these regulations, and shall send the same to the Secretary of State at the end of each quarter. 21. These regulations shall come into force on the 1st day of July, 1907, and shall apply to England and Wales. H. J. Gladstone, One of His Majesty's Principal Secretaries of State. Joseph A. Pease, Cecil Norton, Two of the Lords Commissioners of His Majesty's Treasury, 21st June, 1907. Schedule. (FORM 1.) Particulars to be obtained by Certifying Surgeon upon application by Workman for Certificate of Disablement. 1. Name and address of workman 2. Disease in respect of which ) certificate is applied for ... J 3. Symptoms complained of ... 4. Employment to the nature of ) which disease is attributed \ 5. Name and place of business of J employer who last employed f workman in such employ- f ment ) 6. ( Where application is not made by workman in per- son) whether workman is able to travel for purposes of examination APPENDIX E 441 (FORM 2.) Notice to Workman of time and place appointed for his Examination by Surgeon. Workmen's Compensation Act, 1906. I hereby give you notice, with reference to your application for a certificate of disablement under section 8, sub-section (1), of the above- named Act, that I propose to examine you at on the day of at o'clock, and that you are required to submit yourself for examination accordingly. To (the Workman.) (Signed) (FORM 3.) Certificate of Disablement. Workmen's Compensation Act, 1906. I, (a) as certifying surgeon appointed under the Factory and Workshop Act, 1901, for the district of (or as a medical practitioner appointed by the Secretary of State to have the powers and duties of a certifying surgeon for the purposes of section 8 of the Act), hereby certify that having personally examined (6) on the day of I am satisfied that (c) is suffer- ing from (d) being one of the diseases to which the Workmen's Compensation Act applies, and is thereby disabled from earning full wages at the work at which (c) has been employed ; and I* certify that the disablement commenced on the day of 1. Full name and address of workman 2. Process in which workman states he was employed at or immediately before the date of disablement ... ... 3. Name and place of business of \ employer stated by workman r to have last employed him in C process above-mentioned ... ) 4. Leading symptoms of disease Dated this (Signed) day of * If the surgeon is unable to certify a date on which the disablement com- menced, he should strike out this part of the certificate. In that case the dis- ablement will be deemed to have commenced on the date on which this certificate is given. See section 8 (4) of the Act. (a) strike out portion of de- scription in- applicable. (6) name of workman. (c) he " or "she." (d) name dis- ease according to the terms in which it is de- scribed in the third schedule to the Act or Order of the Secretary of State adding it to the sche- dule. 442 THE WORKMEN'S COMPENSATION ACT, 1906 (FORM 4.) Certificate (supplementary to a Certificate of Disablement) to be given by Certifying Surgeon in circumstances mentioned in Regulation 5. 1. When the certificate is included in the certificate of disablement, it should run as follows : (a) name But whereas the said workman appears to have been employed at process. or immediately before the date of disablement in (a) being a tioned in^or P rocess (&) *^ e second column of the third schedule to the " added by an Act, and the disease contracted by him, viz. (c) is a disease Order of the which (d) is set opposite the above-mentioned process, I a\ ar f nere by certify that in my opinion the said disease is not due to the (c) name na * ure f suc ^ employment, disease. (d) in the Date tms da y of first column of (Signed) that schedule" or " under the provisions of the said Or- der." 2. When the certificate is given separately on a subsequent applica- tion of the employer, it should be in the following form : Workmen's Compensation Act, 1906. (e) strike out Whereas I, (e) the certifying surgeon appointed under the Factory and portion of de- Workshop Act, 1901, for the district of (or as a medical practi- appHcable " *i ner appointed by the Secretary of State to have the powers and (/) name of duties of a certifying surgeon, for the purposes of section 8 of the workman. above-named Act), on the day of certified that (/) (g) name was suffering from (g) being a disease to which the ^(M^n ame Workmen's Compensation Act applies, and was thereby disabled from process. earning full wages at the work at which he was employed ; and (i) "men- whereas the said (/) appears to have been employed at or " added"!)" an immediatel y before the date of disablement in (h) being a Order of the process (i) the second column of the third schedule to the Secretary of Act, and the disease above-named is a disease which (k) State to." j s se t; opposite the above-mentioned process, I hereby certify that, in tirs? "column m y P mion > the said disease was not due to the nature of such of that sche- employment, dule" or "un- der the provi- Dated this day of APPENDIX E (FORM 5.) 443 Certificate of Certifying Surgeon refusing to give Certificate of Disablement. Workmen's Compensation Act, 1906. I, (a) as certifying surgeon appointed under the Factory and Work- shop Act, 1901, for the district of (or as a medical practitioner appointed by the Secretary of State to have the powers and duties of a certifying surgeon for the purposes of section 8 of the above Act), hereby certify that having personally examined (b) who has applied for a Certificate of Disablement in respect of (c) being a disease to which the Workmen's Compensation Act applies, I am not satisfied that (d) is suffering from the said disease so as to be disabled from earning full wages at the work at which (d) has been employed. 1. Full name and address of work- man 2. Employment to nature which disease complained was attributed 3. Name and place of business \ of employer stated by work- ( man to have last employed f him hi such employment ... ' Of) . of } Dated this (Signed) day of (a) strike out portion of de- scription in- applicable. (b) name workman. (c) describe (d) "he "or she." (FORM 6.) Certificate of Suspension by Certifying or Appointed Surgeon. Workmen's Compensation Act, 1906. I the (a) surgeon for (b) hereby certify that after personally examining (c) , I have on the day of in pursuance of the (d) made under the Factory and Workshop Act, 1901, suspended the said (c) from (e) usual employment on account of (e) having contracted (/) being a disease to which the Workmen's Compensation Act applies. (^"certify- g" or pointed." (b) name works at which workman is employed. (c) name workman. (d) name the special rules or regulations governing the employment. (e) "his "or "her." (/) describe disease. 444 THE WORKMEN'S COMPENSATION ACT, 1906 1. Full name and address of ) workman ... ... ... J 2. Employment from which ) workman is suspended ... ) 8. Name and place of business of ) employer ... ... ... ) 4. Leading symptoms of disease... Dated this day of (Signed) (a) name process. (b) " men- tioned in " or " added by an Order of the Secretary of State to." (c) name disease. (d) "in the first column of that sc he - dule" or "un- der the provi- sions of the said Order." (a) "certi- fying" or " appointed." (b) name works at which workman was employed. (c) name special rules or regulations governing the employment. (d) name of workman. (e)" his "or " her." (/) describe disease. (FORM 7.) Certificate to be given by Surgeon in cases of suspension in circum- stances mentioned in Regulation 5. 1. When the certificate is included in a certificate of suspension, it should run as follows : But whereas the said workman appears to have been employed at or immediately before the date of suspension in (a) being a process (b) the second column of the third schedule to the Act, and the disease contracted by him, viz. (c) is a disease which (d) is set opposite the above-mentioned process, I hereby certify that in my opinion the said disease is not due to the nature of such employment. Dated this day of (Signed) 2. When the certificate is given separately on an application by the employer, it should be in the following form : Workmen's Compensation Act, 1906. Whereas I, the (a) surgeon for (b) on the day of in pursuance of the (c) made under the Factory and Workshop Act, 1901, suspended (d) from (e) usual employment on account of (B) having contracted (/) being a disease to which the Workmen's Compensation Act applies, and whereas the said (d) appears to have been employed at APPENDIX E 445 or immediately before the date of suspension in (g) being a process (h) the second column of the third schedule to the Act, and the disease above-named is a disease which i / 1 is set opposite the above-mentioned process, I hereby certify that in my opinion the said disease was not due to the nature of such employ- ment. Dated this day of (Signed) (FORM 8.) Certificate by Certifying or Appointed Surgeon of Refusal to Suspend. Workmen's Compensation Act, 1906. I, the (a) surgeon for (b) hereby certify that (c) having applied to me to be suspended from his usual employment in pursuance of (d) made under the Factory and Workshop Act, 1901, on account of (e) having contracted (/) being a disease to which the Workmen's Compensation Act applies, I have after personally examining the said (c) refused to suspend (g) 1. Full name and address of ) workman ... ... ... j 2. Name and place of business \ of employer f 3. Grounds for refusal to suspend Dated this day of (Signed) (g) name process. (h) "men- tioned in" or "added by an Order of the Secretary of State to." (i) "in the first column of that schedule" or "under the provisions of the said Or- der." (a) "certi- fy ing "or "ap- pointed." (6) name works at which workman is employed. (c) name workman. (d) name the code of special rules or regulations governing the employment. (e) "his" or "her." (/) describe disease. (g) "him" or "her." (FORM 9.) Application by Employer for Reference to Medical Referee. In the County Court of holden at In the matter of the Workmen's Compensation Act, 1906, and In the matter of a Certificate of Disablement (or Suspension) granted in the case of (name and address of workman) in pursuance of the provisions of section 8 of the above- mentioned Act and the ^Regulations made thereunder by the Secretary of State. 446 THE WORKMEN'S COMPENSATION ACT, 1906 Application for a reference in the above-mentioned matter to a medical referee, pursuant to section 8, sub- section (1) (f), of the Act and to the above-mentioned regulations, is hereby made on behalf of (name and place of business of applicant) who states : 1. That on the day of notice of disablement (or suspension) was given to the applicant by the above- mentioned under the provisions of the said Act. 2. That the said notice was consequent on a certificate of disable- ment given (or order of suspension made), on the day of , in pursuance of the said Act and regulations, by Mr. residing at (full address), the certifying surgeon under the Factory and Workshop Act, 1901, for the district of (or a medical practitioner appointed by the Secretary of State to have the powers and duties of a certifying surgeon under section 8 of the said Act, or a surgeon appointed in pursuance of (describe special rules or regulations under the Factory Act) at (name of factory or other place of employment) ). 3. That the applicant is aggrieved by the action of the above- mentioned Mr. in giving the said certificate (or in making the said order of suspension) and claims that the said had not contracted the disease in respect of which the said certificate was given (or in respect of which the said order was made) (or, in the case of a certificate of disablement, was not suffering from the disease therein specified so as to be disabled from earning full wages at the work at which he was employed), in support of which claim he * State mentions the following circumstances : (*) grounds for claim, e.g., re- oo t r e^ y ^ J1< ^ *k e applicant hereby undertakes, if the matter is referred to a ployed by ap- medical referee, to repay to the said (workman) any plicant. reasonable travelling expenses he may incur in attending for examina- tion by such referee. Two copies of this application are annexed hereto, together with a copy of the notice and certificate of disablement (or suspension). (The above-mentioned report of the medical practitioner employed by me, and two copies thereof, are also annexed.) Dated this day of (Signed) Applicant. To the Registrar. APPENDIX E 447 (FORM 10.) Application by Workman for Reference to Medical Referee. In the County Court of holden at In the matter of the Workmen's Compensation Act, 1906, and In the matter of a Refusal of a certifying (or appointed) Surgeon to give a Certificate of Disablement to (or to suspend) (name and address of applicant) in pursuance of the provisions of section 8 of the above-mentioned Act and the regulations made thereunder by the Secretary of State. Application for a reference in the above-mentioned matter to a medical referee, pursuant to section 8, sub-section (1) (f), of the said Act and to the above-mentioned regulations, is hereby made on behalf of the said who states : 1. That on the day of applicant applied to Mr. residing at (full address) the certifying surgeon under the Factory and Workshop Act, 1901, for the district of (or a medical practitioner appointed by the Secretary of State to have the powers and duties of a certifying surgeon for the purposes of section 8 of the said Act, or a surgeon appointed in pursuance of (describe special rules or regulations under Factory Act) at (name of factory, or other place of employment), for a certificate of disablement (or to be suspended) in respect of a disease to which the provisions of section 8 of the Workmen's Compensation Act apply. 2. That the said Mr. refused to give the applicant a certificate of disablement (or to suspend the applicant) and certified to such refusal by a certificate, dated the day of , which is annexed to this application. 3. That the applicant is aggrieved by the action of the said Mr. in refusing to give him a certificate of disablement (or to suspend him) and claims that he was suffering from the said disease, and was thereby disabled from earning full wages at the work at which he was employed (or in the case of a refusal to suspend, that he had contracted the said disease and was thereby entitled, in accordance with the special rules (or regulations) made under the Factory and Workshop Act, 1901, for the process in which he was employed, to be suspended), in support of which claim he * State mentions the following circumstances : (*) groundsof claim, e.g., re- port, if any, of 4. That the employer on whom the applicant, if the matter is ployed Ty referred to a medical referee and decided in favour of the applicant, applicant. 448 THE WORKMEN'S COMPENSATION ACT, 1906 would serve the statutory notice of disablement (or suspension) is (name and place of business of employer). Two copies of this application and the certificate of the surgeon (together with the above-mentioned report of the medical practitioner employed by applicant and two copies thereof) are annexed hereto. Dated this day of (Signed) Applicant. To the Kegistrar. (FORM 11.) Order of Reference to Medical Referee. In the County Court of holden at (Heading as in application.) On the application of (a copy of which is hereto annexed), I hereby appoint Mr. of , one of the medical referees appointed by the Secretary of State for the purposes of the Workmen's Compensation Act, 1906, to decide on the matter arising on the said application. Copies of the notice and certificate of disablement (or suspension), (and of a report of a medical practitioner by whom the workman referred to in the application has been examined), are hereto annexed. Or, if the workman is the applicant, A copy of the certificate of the surgeon referred to in the application (together with a copy of a report of a medical practitioner by whom applicant has been examined), is hereto annexed. The said , who is now at , has been directed to submit himself for examination by the referee. I am satisfied that the said is in a fit condition to travel for the purpose of being examined, and he has been directed to attend on the referee for examination at such time and place as may be fixed by the referee. [Or the said does not appear to be in a fit condition to travel for the purpose of being examined.] Dated this day of Registrar. APPENDIX E 449 (FORM 12.) Order on Workman to submit himself for Examination by Medical Referee. In the County Court of holden at (Heading as in Application.) To A.B. , of (address and description). TAKE NOTICE, that I have appointed Mr. , of , one of the medical referees appointed by the Secretary of State for the purposes of the Workmen's Compensation Act, 1906, to decide on the matter arising on the above application. You are hereby required to submit yourself for examination by the referee [add, where workman is in a fit condition to travel, and to attend for that purpose at such time and place as may be fixed by him]. Dated this day of Registrar. (FORM 13.) Notice by Medical Referee to Workman. Workmen's Compensation Act, 1906. I hereby give you notice that I have received from the Eegistrar of the County Court at , an order of reference appointing me to decide on your appeal against the action of Mr. (name of surgeon) in refusing to give you a certificate of disablement (or to suspend you). Or, if the employer is the appellant, on the appeal made by (name of employer) against the action of Mr. (name of surgeon) in giving you a certificate of disablement (or in suspending you) ; And that you are required to attend (or, if the workman has been ascertained not to be in a Jit condition to travel, to submit your- self) for examination at on the day of at o'clock. Any statement made or submitted by you shall be considered. (Signed) Medical Referee. To 450 THE WORKMEN'S COMPENSATION ACT, 1906 (FORM 14.) Notice by Medical Referee to Employer. Workmen's Compensation Act, 1906. I hereby give you notice that I have received from the Eegistrar of the County Court at , an order of reference appointing me to decide on your appeal against the action of Mr. (name of surgeon) in giving a certificate of disablement to (or in suspending) (name of workman). Or, if the ivorkman is the appellant, on the appeal made by (name of workman) against the action of Mr. (name of surgeon) in refusing to give him a certificate of disablement (or to suspend him) ; And that I propose to examine (name of workman) at on the day of at o'clock. Any statement made or submitted by you shall be considered. Add, if the employer is the appellant, You, or some person duly authorised by you, are hereby required to attend at the above time and place. Dated this day of (Signed) Medical Referee. To (FORM 15.) Decision of Medical Referee. (Heading as in Application.) I hereby give you notice that having duly inquired into the above- mentioned matter in accordance with the regulations of the Secretary of State, I decide as follows : I dismiss (or allow) the appeal of (name of employer) against the certificate of disablement given to (name of workman) on the day of or I dismiss (or allow) the appeal of (name of employer) against the suspension of (name of workman) on the day of or I dismiss the appeal of (name of workman) against the refusal of Mr. (name of surgeon) to give him a cer- tificate of disablement in respect of (name of disease). or APPENDIX E 451 I allow the appeal of (name of workman) against the refusal of Mr. (name of surgeon) to give him a certificate of disablement in respect of (name of disease), and I fix the day of as the date on which the disablement commenced, or I dismiss (or allow) the appeal of (name of workman) against the refusal of Mr. (name of surgeon) to suspend him on the day of Dated this day of (Signed) To (the Registrar), and to (the Employer), and to (the Workman). Medical Referee. (FORM 16.) Medical Referee's Statement of Fees in respect of References under Section 8 of the Workmen's Compensation Act, 1906. Number. Names of Parties. Date on which Reference received. Registrar from whom received. Date and Place of Exami- nation. Date and Terms of Decision. Amount of Fees under each of the headings in Regulation 18. (i.) (ii.) (iii.) 1. s.d. s.d. 8. d. 2. Total s. d. I hereby certify that I examined the workman on , at , which is distant miles from iny residence or prescribed centre. (Signed) Medical Referee. 452 THE WORKMEN'S COMPENSATION ACT, 1906 (FORM 17.) Record of References to be kept by Registrar. For quarter ended. Number of Reference. Names of Parties. Action of Surgeon by which applicant is aggrieved. Name of Surgeon. Nature of Disease. Date on which reference made. Whether workman directed to attend on Medical Referee or not. Name of Medica Referee. APPENDIX F REGULATIONS OF THE SECRETARY OF STATE, DATED JUNE 28, 1907, AS TO EXAMINATIONS OF A WORKMAN BY A MEDICAL PRACTITIONER PROVIDED AND PAID BY THE EMPLOYER UNDER THE PROVISIONS OF THE FIRST SCHEDULE TO THE WORKMEN'S COMPENSATION ACT, 1906. In pursuance of the powers vested in me by paragraph (15) of the First Schedule to the Workmen's Compensation Act, 1906, I, the Eight Honourable Herbert John Gladstone, one of His Majesty's Principal Secretaries of State, do hereby make the following regulations : 1. Where a workman has given notice of an accident or is in receipt of weekly payments under the Act, he shall not be required to submit himself, against his will, for examination by a medical practitioner provided by the employer except at reasonable hours. 2. A workman in receipt of weekly payments shall not be required, after a period of one month has elapsed from the date on which the first payment of compensation was made, or if the first payment is made in obedience to the award of a committee or arbitrator, from the date of the award, to submit himself, against his will, for examination by a medical practitioner provided by the employer except at the following intervals: Once a week during the second, and once a month during the third, fourth, fifth, and sixth months, after the date of the first payment or the award, as the case may be, and thereafter once in every two months. Provided that where after the second month an application has been made to the county (in Scotland, the sheriff) court or to a committee for a review of the weekly payment, the workman may be required, pending and for the purposes of the settlement of the application, to submit himself to one additional examination. H. J. Gladstone, One of His Majesty's Principal Secretaries of State. Whitehall, 28th June, 1907. 453 APPENDIX G REGULATIONS, DATED JUNE 24, 1907, MADE BY THE SECRETARY OF STATE AND THE TREASURY AS TO THE DUTIES AND REMUNERA- TION OF MEDICAL REFEREES IN ENGLAND AND WALES UNDER THE PROVISIONS OF THE FlRST AND SECOND SCHEDULES TO THE WORKMEN'S COMPENSATION ACT, 1906. I, the Right Honourable Herbert John Gladstone, one of His Majesty's Principal Secretaries of State, and We, the Lords Com- missioners of His Majesty's Treasury, in pursuance of the powers respectively conferred on us by the Workmen's Compensation Act, 1906, hereby make the following regulations: Part I. Definitions and General Eegulations. 1. In these regulations (i.) " Medical Referee" means a medical practitioner appointed by the Secretary of State to act as medical referee for the purposes of the Workmen's Compensation Act, 1906. (ii.) " Reference " means (a) in Regulations in Part II., the appointment of a medical referee by the registrar of a county court, to give a certificate, in accordance with the provisions of paragraph (15) of the first schedule to the Workmen's Compensation Act, 1906, as to the condition of the workman and his fitness for employment or as to whether or to what extent the incapacity of the work- man is due to the accident. (6) in regulations in Part III., the appointment of a medical referee by the registrar of a county court to give a certificate, in accordance with the provisions of paragraph (18) of the first schedule to the Workmen's Compensation Act, 1906, as to whether the incapacity resulting from the injury is likely to be of a permanent nature. 454 APPENDIX G 455 (c) in regulations in Part V., the appointment of a medical referee by a committee, arbitrator or judge to report on any matter material to any question arising in an arbitration under the Workmen's Compensation Act, 1906. (iii.) "Committee" means a committee representative of an employer and his workmen, with power to settle matters under the Workmen's Compensation Act, 1906, in the case of the employer and workmen. (iv.) "Agreed Arbitrator" means a single arbitrator agreed on by the parties to settle any matter which under the Workmen's Compensation Act, 1906, is to be settled by arbitration. (v). "Appointed Arbitrator" means a single arbitrator appointed by the judge. (vi.) "Judge" means County Court Judge. (vii.) The words "district in which the case arises" mean the county court district in which all the parties concerned reside, or, if they reside in different districts, the district prescribed by rules of court, subject to any transfer made under those rules. 2. In the case of any reference under these regulations, the medical referee, in the absence of special circumstances, shall be one of those appointed by the Secretary of State for the county court circuit which includes the district in which the case arises, and shall, if the circuit has been sub-divided, and medical referees have been appointed for the sub-divisions, be one appointed for the sub-division which comprises the aforesaid district. Provided that, where there has been a previous reference in. any case, any subsequent reference in the same case shall, if possible, be made to the same referee and be accompanied by the previous report or certificate, or copy thereof, of the medical referee. 3. The medical referee shall not accept any reference under these regulations unless signed or countersigned by the registrar of a county court and sealed with the seal of the county court. 4. The medical referee shall send to the Home Office at the Forms I, J, K, end of each quarter statements, in the forms prescribed in the an< * L - schedule to these regulations, of the fees due to him for the quarter under these regulations. 5. In cases where a claim is made under the regulations in respect of travelling expenses, the medical referee, in submitting his quar- terly statements under regulation 4, shall certify the distance of Form M. Forms A and B. Form C. 456 THE WORKMEN'S COMPENSATION ACT, 1906 the place to which he was required to travel from his residence or other prescribed centre. 6. In cases involving special difficulty the medical referee may apply to the Secretary of State for special expert assistance which may be granted by the Secretary of State, if he thinks fit, on such terms as to remuneration or otherwise as he may with the sanction of the Treasury determine. 7. The registrar of 'every county court shall keep a record, in the form prescribed in the schedule, of all references made under these regulations, and of all cases in which a medical referee is summoned to sit as assessor, and shall send a copy thereof to the Secretary of State at the end of each quarter. 8. These regulations shall come into force on the 1st day of July, 1907, and shall apply to England and Wales. Part IJ. Regulations as to References under Schedule I., paragraph (15). 9. The medical referee shall, on receipt of a reference duly signed and sealed, fix a tune and place for the examination of the workman, and shall send notice accordingly to both the parties signing the application on which the reference is made. 10. Before giving the certificate required by the reference, the medical referee shall personally examine the workman and shall consider any statements that may be made or submitted by either party. 11. The certificate given by the medical referee shall be according to the form prescribed in the schedule to these regulations. 12. The medical referee shall forward his certificate to the regis- trar from whom he received the reference. 13. The following shall be the scale of fees to be paid to medical referees in respect of references under this part of the regulations: (i.) For a first reference (to include all the duties performed in connection therewith) ... 2 guineas. (ii.) For a second or subsequent reference to the same medical referee in the same case ... 1 guinea. (iii.) Where in order to examine the injured workman the medi- cal referee is compelled to travel to a place distant more than two miles from his residence or such other centre as may be prescribed by the Secretary of State, in addition to the above fees 5s. for each mile beyond two, and up to ten, miles distant from such residence or centre, and thereafter Is. for each mile distant therefrom. APPENDIX G 457 Part III. Regulations as to References under Schedule I., paragraph (18). 14. The medical referee shall, on receipt of a reference duly Form D. signed and sealed, fix a time and place for the examination of the workman, and shall send notice accordingly to the workman. 15. Before giving the certificate required by the reference the medical referee shall make a personal examination of the work- man. 16. The certificate given by the medical referee shall be according Form E. to the form prescribed in the schedule to these regulations. 17. The medical referee shall forward his certificate to the regis- trar from whom he received the reference. 18. The fee to be paid to a medical referee in respect of a reference (to include all the duties performed in connexion therewith) under this part of these regulations shall be one guinea. Part IV. Regulation as to Remuneration of Medical Referee for sitting as Assessor under Schedule' II., paragraph (5). 19. Where a medical referee attends on the summons of the judge for the purpose of sitting with the judge as an assessor, as provided for in paragraph (5) of the second schedule to the Workmen's Compensation Act, 1906, he shall be entitled for such attendance (to include his services as assessor) to a fee of 3 guineas, and where in order so to attend on the judge, he is compelled to travel to a place distant more than two miles from his residence or such other centre as may be prescribed by the Secretary of State, he shall be entitled, in addition to the above fee, to 5s. for each mile beyond two, and up to ten, miles distant from such residence or centre, and thereafter to Is. for each mile distant therefrom. Part V. Regulations as to References under Schedule II., paragraph (15). Conditions of Reference. 20. Before making any reference, the committee, arbitrator or judge shall be satisfied, after hearing all medical evidence tendered by either side, that such evidence is either conflicting or insufficient on some matter which seems material to a question arising in the arbitration, and that it is desirable to obtain a report from a medical referee on such matter. Form and Mode of Reference. 21. Every reference shall be imade in writing and shall state the matter on which the report of the medical referee is required, and the 458 THE WORKMEN'S COMPENSATION ACT, 1906 question arising in the arbitration to which such matter seems to be material. Such reference shall be in accordance with the form pre- Form F. scribed in the schedule to these regulations, or as near thereto as may be. The reference shall be accompanied by a general statement of the medical evidence given on behalf of the parties ; and if such evidence has been given before a committee or an agreed arbitrator, each medical witness shall sign the statement of his evidence, and may add any necessary explanation or correction. 22. On making the reference to the medical referee, the committee, Form G. arbitrator or judge shall make an order in the form prescribed in the schedule, directing the injured workman to submit himself for examination by the medical referee. Before making such order they shall inquire whether he is in a fit condition to travel for the purpose of examination, and if satisfied that he is in a fit condition, they shall by the same order direct him to attend at such time and place as the referee may fix. It shall be the duty of the injured workman to obey any such order. If the committee, arbitrator or judge is satisfied that the workman is not in a fit condition to travel, they shall so state in the reference. 23. The reference shall be signed, if made by a committee, by the chairman and secretary of the committee ; if made by an agreed arbitrator, by the arbitrator ; if made by a judge or an appointed arbitrator, by the judge or arbitrator, or by the registrar of the county court in which the arbitration is pending. 24. A committee or an agreed arbitrator, making a reference, shall, without naming a medical referee, address the reference in general terms to " one of the medical referees appointed by the Secretary of State for the purposes of the Workmen's Compensation Act, 1906," and shall forward it to the registrar of the county court of the district in which the case arises. Duties of Registrar. 25. (1) In the case of a reference by a committee or agreed arbitrator, the registrar on receiving the reference (a) Shall see that the reference is in accordance with these regulations, and if it is not, shall return it for amend- ment ; (6) Shall insert the name of the medical referee proper to be appointed ; (c) Shall, when the reference is in accordance with these regulations, countersign and seal it, and forward it forthwith to the medical referee. APPENDIX G 459 (2) In the case of a reference by a judge or an appointed arbitrator, the registrar of the court in which the arbitration is pending shall sign (or countersign) and seal it, and forward it forthwith to the medical referee. 26. The registrar, on receiving a report from a medical referee under Kegulation 28, shall forthwith file a copy at the court and transmit the report to the committee, arbitrator or judge by whom the reference was made. If the committee, arbitrator or judge shall direct that the parties be at liberty to inspect the report, the registrar shall on receiving notice of such direction permit such inspection to be made during office hours, and shall on the application and at the cost of any party furnish him with a copy of the report or allow him to take a copy thereof. Report of Medical Referee. 27. The medical referee shall, on receipt of a reference duly signed Form H. and sealed, appoint a time and a place for the examination of the workman, and shall send him notice accordingly. 28. The medical referee shall give his report in writing, and shall forward it to the registrar from whom he received the reference. 29. The committee, arbitrator or judge may, by request signed and forwarded in the same manner as the reference, remit the report to the medical referee for a further statement on any matter not covered by the original reference. Fees. 30. The following shall be the scale of fees to be paid to the medical referees in respect of references under this part of the regulations : (i.) For a first reference, to include examination of the injured workman and written report 2 guineas. (ii.) For a further statement under Eegulation 29 on any matter not covered by the original reference 1 guinea. (iii.) For a second or subsequent reference to the same referee in a further arbitration on the same case, to include examination, if necessary, and written report 1 guinea. 460 THE WORKMEN'S COMPENSATION ACT, 1906 (iv.) Where in order to examine the injured workman the medical referee is compelled to travel to a place dis- tant more than two miles from his residence or such other centre as may be prescribed by the Secretary of State, in addition to the above fees 5s. for each mile beyond two, and up to ten, miles distant from such residence or centre, and thereafter Is. for each mile distant therefrom. H. J. Gladstone, One of His Majesty's Principal Secretaries of State. Joseph A: Pease, J. H. Whitley, Two of the Lords Commissioners of His Majesty's Treasury. 24th June, 1907. Schedule. (FORM A.) Notice by Medical Referee to Employer or Solicitor signing the application on employer's behalf (Schedule I. (15)). Workmen's Compensation Act, 1906. To I hereby give you notice that in accordance with the Reference made to me by the Registrar of the County Court of holden at , under Schedule I., paragraph (15), of the above-named Act, in the case of (name and address of workman) I propose to examine the said at on the day of at o'clock. Any statements made or submitted by you (or, if notice is addressed to the solicitor, by the employer), will be considered. Dated this day of (Signed) Medical Referee. APPENDIX G 461 (FORM B.) Notice by Medical Referee to Workman or Solicitor signing the application on Workman's behalf (Schedule I. (15)). Workmen's Compensation Act, 1906. To I hereby give you notice that in accordance with the Reference made to me in your case (or, if notice is addressed to the solicitor, in the case of (name and address of workman) ), by the Registrar of the County Court of holden at , under Schedule I., paragraph (15), of the above-named Act, I propose to examine you (or the said ) at on the day of at o'clock. And you are required to submit yourself (or the said is required to submit himself) for examination accordingly. Any statements made or submitted by you (or, if notice is addressed to the solicitor, by the workman) will be considered. Dated this day of (Signed) Medical Eeferee. (FORM C.) Certificate of Medical Referee as to condition of Workman and fitness for employment, or as to whether or to what extent incapacity of workman is due to the accident (Schedule I. (15)). Workmen's Compensation Act, 1906. In accordance with the Reference made to me by the Registrar of the County Court of holden at upon the application of (names and addresses of parties) I have on the day of examined the said (name of workman) and I hereby certify as follows : 1. The said is* and his condition is such that he is f 'Describe state of health. fState whether work- man is fit for his ordinary or other work, specifying where neces- sary the kind of work, or whether he is unfit for work of any kind. 462 THE WORKMEN'S COMPENSATION ACT, 1906 or to 2 ' The inca P acit y of the said 1 what extent the incapacity is due to the accident (or, in cases com- ing within section 8 o the Act, to the disease). NOTE. Either paragraph 1 or paragraph 2 to be filled up, or both to be filled up, according to the terms of the Reference. Dated this day of (Signed) Medical Referee. (FORM D.) Notice by Medical Referee to Workman (Schedule I. (18)). Workmen's Compensation Act, 1906. To I hereby give you notice that in accordance with the Reference made to me in your case by the Registrar of the County Court of holden at under Schedule I., paragraph (18), of the above-named Act, I propose to examine you at on the day of at o'clock, and you are required to submit yourself for examination accordingly. Dated this day of (Signed) Medical Referee. (FORM E.) Certificate of Medical Referee (Schedule I. (18)). Workmen's Compensation Act, 1906. In accordance with the Reference made to me by the Registrar of the County Court of holden at under Schedule I., paragraph (18), of the above-named Act, I have on the day of examined APPENDIX G 463 of (name and address of work- man) and I hereby certify that his incapacity is [or is not] likely to be of a permanent nature. Dated this day of (Signed) Medical Referee. (FORM F.) Reference to a Medical Referee (Schedule II. (15) ). In the matter of the Workmen's Compensation Act, 1906, and In the matter of an Arbitration between A.B. Address Description Applicant, and C.D. Address Description Respondent. C (a) We, a committee representative of and his workmen, and empowered to arbitrate in the matter arising under the Workmen's Compensa- Asthe case may - be tion Act, between A.B. and C.D. ; (6) I, , an arbitrator agreed upon by A.B. and C.D. to arbitrate in the matter arising between them under the Workmen's Compensa- tion Act, 1906; (c) I, , Judge of County Courts ; (d) I, , arbitrator appointed by a Judge of County Courts, having heard the evidence tendered by both parties, hereby certify that in our (or my) opinion the medical evidence given before us (or me) is conflicting (or insufficient) on a matter which seems to us (or me) to be material to a question arising in the above-mentioned arbitration, and that it is desirable to obtain a report from a medical referee on such matter, as follows : (A) On the day of personal injury was (or is alleged to have been) caused to * workman" 464 THE WORKMEN'S COMPENSATION ACT, 1906 fHere state the facts of the accident as ascertained from the evidence. Name The name must, if the reference is made by a committee or agreed arbi- trator, be left in blank to be inserted by the Registrar. * For signature of judge or arbitrator. by accident arising out of and in the course of his employment, under the following circumstances : t Or, in a case of industrial disease to which the Act applies (A) On the day of the said * was, under section 8 of the above-named Act, certified to be disabled by, or suspended from his usual employment on account of his having contracted a disease to which the said section applies, namely, J (B) The matter on which we are (or I am) satisfied that it is desirable to obtain a report is (c) Such matter seems to be material to the following question arising in the arbitration, viz. : We (or I) therefore appoint one of the medical referees appointed by the Secretary of State for the purposes of the Workmen's Compensation Act, 1906, to examine the said on the matter specified above, and to report to us (or me). A statement of the medical evidence given before us (or me) is appended. We are (or I am) satisfied that the said who is now at , is in a fit condition to travel for the purpose of being examined, and he has been directed to attend on the referee for examination at such time and place as shall be fixed by the referee ; or does not appear to be in a fit condition to travel for the purpose of being examined. The referee is requested to forward his report to The Registrar, County Court Office, on or before the day of Dated this day of (Signed) * or On behalf of the Committee Signature of Registrar and Seal of Court. Chairman ) Secretary ) of Committee. A previous reference was made to a medical referee in this case on the , 19 , and a copy of the report then given is attached. APPENDIX G K,r, (FORM G.) Order on injured Workman to submit himself for examination by Medical Referee. (Title as in Reference.) To Address. of Description. TAKE NOTICE That the Committee (or arbitrator, or judge) have (or has) appointed one of the medical referees under the Workmen's Compensation Act, 1906, to examine you for the purposes of the above-mentioned arbitration, and to report to them (or him). You are hereby required to submit yourself for examination by such referee,! and to attend for that purpose at such time and place j Strike out as may be fixed by him. from " and to attend ' ' when Dated this day of injured work- man does not (To be signed in the same manner as Reference.) l^Tconditlon to travel. (FORM H.) Notice by Medical Referee to injured Workman (Schedule II. (15) ). Workmen's Compensation Act, 1906. To I hereby give you notice that I have been appointed to examine and report on your case under Schedule II., paragraph (15), of the above-named Act, and that I propose to make such examination at on the day of at o'clock. (Signed) Medical Referee. 30 466 THE WORKMEN'S COMPENSATION ACT, 1906 (FORM I.) Medical Referee's Statement of Fees in respect of References under Schedule I. (15). 1 I 'A Names of Parties. Date on which Re- ference received. Registrar from whom received. Date and Place of Examination. .2 3 11 Ef 0>g3 :',0 THE WORKMEN'S COMPENSATION ACT, 1906 county court of the district in which all the parties concerned reside, or if they reside in different districts the district in which the acci- dent 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 gener- ally 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 51 & 52 Viet, hundred and sixty-four of the County Courts Act, 1888, and when c. 43. allowed by the Lord Chancellor, as provided by that section, shall have full effect without any further consent. (11.) No court fee shall be payable by any party in respect of any proceeding under this Act in the county court prior to the award. (12.) Any sum awarded as compensation shall be paid on the receipt of the person to whom it is payable under any agreement or award, and his 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 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 arbitra- tion ; 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 Scotland (a.) "Sheriff" shall be substituted for "county court judge," " sheriff court " for " county court," " action " for " plaint," " sheriff clerk" for " registrar of the county court," and "act of sederunt " for " rules of court " : (6.) Any award or agreement as to compensation under this Act may be competently recorded for execution in the books of APPENDIX L 531 council and session or sheriff court books, and shall be enforce- able in like manner as a recorded decree arbitral : (c.) Any application to the sheriff as arbitrator shall be heard, tried, and determined summarily in the manner provided by the fifty- second section of the Sheriff Courts (Scotland) Act, 1876, save 39 & 40 Viet, only that parties may be represented by any person authorised c. 70. in writing to appear for them and subject to the declaration that it shall be competent to either party within the time and in accordance with the conditions prescribed by act of sederunt to require the sheriff to state a case on any question of law deter- mined 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. APPENDIX M WORKMEN'S COMPENSATION ACT, 1900. (Repealed by the Workmen's Compensation Act, 1906., [63 & 64 VICT. C. 22.] An Act to extend the benefits of the Workmen's Compensation Act, 1897, to Workmen in Agriculture. [30th July, 1900.] BE it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Com- mons, in this present Parliament assembled, and by the authority of the same, as follows : 1. (1.) From and after the commencement of this Act, the Work- men's Compensation Act, 1897, shall apply to the employment of workmen in agriculture by any employer who habitually employs one or more workmen in such employment. (2.) Where any such employer agrees with a contractor for the execution by or under that contractor of any work in agriculture, section four of the Workmen's Compensation Act, 1897, shall apply in respect of any workman employed in such work as if that employer were an undertaker within the meaning of that Act. Provided that, where the contractor provides and uses machinery driven by mechanical power for the purpose of threshing, ploughing, or other agricultural work, he, and he alone, shall be liable under this Act to pay compensation to any workman employed by him on such work. (3.) Where any workman is employed by the same employer mainly in agricultural but partly or occasionally in other work, this Act shall apply also to the employment of the workman in such other work. The expression "agriculture" includes horticulture, forestry, and the use of land for any purpose of husbandry, inclusive of the keeping or breeding of live stock, poultry, or bees, and the growth of fruit and vegetables, 2. This Act may be cited as the Workmen's Compensation Act, 1900, and shall be read as one with the Workmen's Compensation Act, 1897, and that Act and this Act may be cited together as the Workmen's Compensation Acts, 1897 and 1900. 3. This Act shall come into operation on the first day of July one thousand nine hundred and one. 532 APPENDIX N EMPLOYERS' LIABILITY ACT, 1880. [43 & 44 VICT. C. 42.] An Act to extend and regulate the Liability of Employers to make Compensation for Personal Injuries suffered by Workmen in their Service. [7th September, 1880.J BE it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Com- mons, in this present Parliament assembled, and by the authority of the same, as follows : 1. Where after the commencement of this Act personal injury is Amendment caused to a workman of law. (1.) By reason of any defect in the condition of the ways, works, machinery, or plant connected with or used in the business of the employer ; or (2.) By reason of the negligence of any person in the service of the employer who has any superintendence entrusted to him whilst in the exercise of such superintendence ; or (3.) By reason of the negligence of any person in the service of the employer to whose orders or directions the workman at the time of the injury was bound to conform, and did conform, where such injury resulted from his having so conformed ; or (4.) By reason of the act or omission of any person in the service of the employer done or made in obedience to the rules or byelaws of the employer, or in obedience to particular in- structions given by any person delegated with the authority of the employer in that behalf ; or (5.) By reason of the negligence of any person in the service of the employer who has the charge or control of any signal, points, locomotive engine, or train upon a railway, the workman, or in case the injury results in death, the legal personal representatives of the workman, and any persons entitled in case of death, shall have the same right of compensation and remedies against the employer as if the workman had not been a workman of nor in the service of the employer, nor engaged in his work. 533 5.-H: THE WORKMEN'S COMPENSATION ACT, 1906 Exceptions ? Limit of sum recover- able as compensation. Limit of time for recovery of compensa- tion. Money pay- able under compensation under Act. 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. (2.) Under sub-section four of section one, unless the injury resulted from some impropriety or defect in the rules, byelaws, or instructions therein mentioned ; provided that where a rule or byelaw has been approved or has been accepted as a proper rule or byelaw by one of Her Majesty's Principal Secretaries of State, or by the Board of Trade or any other department of the Government, 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 byelaw. (3.) In any case where the workman knew of the defect or negli- gence 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 himself in the service of the employer, unless he was aware that the employer or such superior already knew of the said defect or negligence. 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 during those years in the like employment and in the district in which the workman is employed at the time of the injury. 4. An action for the recovery under this Act of compensation for an injury shall not be maintainable unless notice that injury has been sus- tained is given within six weeks, and the action is commenced within six months from the occurrence of the accident causing the injury, or, in case of death, within twelve months from the time of death : Provided always, that in the 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. 5. There shall be deducted from any compensation awarded to any workman, or representatives of a workman, or persons claiming by, un ^ er or through a workman in respect of any cause of action arising under this Act, any penalty or part of a penalty which may have been paid in pursuance of any other Act of Parliament to such work- APPENDIX N 535 men, 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 workmen, or any persons claiming by, under, or through such workman, for compensation in respect of any cause of action arising under this Act, and payment 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. 6. (1) Every action for recovery of compensation under this Act Trial of shall be brought in a county court, but may, upon the application of action8 - either plaintiff 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. (2.) Upon the trial of any such action in a county court before the judge without a jury one or more assessors may be appointed for the purpose of ascertaining the amount of compensation. (3.) For the purpose of regulating the conditions 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. "County court" shall, with respect to Scotland, mean the " Sheriff's Court," and shall, with respect to Ireland, mean the " Civil Bill Court." 40 & 41 Viet, c. 50. 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. In Scotland the sheriff may conjoin actions arising 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 Mode of name and address of the person injured, and shall state in ordinary serving notice language the cause of the injury and the date at which it was sus- tained, and shall be served on the employer, or, if there is more than one employer, upon one of such employers. of injury. 536 THE WORKMEN'S COMPENSATION ACT, 190G Definitions. 38 & 39 Viet. c. 90. Commence- ment of Act. Short title. 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 registered 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 containing 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 unincor- porate, the notice shall be served by delivering 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 inaccuracy 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 action is prejudiced in his defence by such defect or inaccuracy, and that the defect or inaccuracy was for the purpose of misleading. 8. For the purposes of this Act, unless the context otherwise requires, The expression " person who has superintendence entrusted to him" means a person whose sole or principal duty is that of superintendence, and who is not ordinarily engaged in manual labour : The expression " employer " includes a body of persons corporate or unincorporate : The expression " workman " means a railway servant and any person to whom the Employers and Workmen Act, 1875, applies. 9. This Act shall not come into operation until the first day of January one thousand eight hundred and eighty-one, which date is in this Act referred to as the commencement of this Act. 10. This Act may be cited as the Employers' Liability Act, 1880, and shall continue in force till the thirty-first day of December one thousand eight hundred and eighty-seven, and to the end of the then next Session of Parliament, and no longer, unless Parliament shall otherwise determine, and all actions commenced under this Act before that period shall be continued as if the said Act had not expired. INDEX " ABLE to earn," meaning of, 211 " About premises," meaning of, 120-122 Absence from United Kingdom Accident happening during, 101 Neglect to give notice because of, 96 Neglect to make claim because of, 101 And see Workman residing abroad Accident, 48-54 Anthrax may be, 53 Beat hand and beat knee are not, 54 Blood-poisoning, how far, 50 Cases on, considered, 48-54 Date of, 55 Definition of, 48 Disease, how far, 48, 52 Enteritis, 53 Fortuitous event, 51 Fright, 49 Gradual infection, 53 Heat stroke, 54 Lead-poisoning, 50 Notice of, see Notice Strain, 50 Actio personalia moritur cwm persona, 182 Action Against employer, 23, 71-75 Against stranger, 24, 128-132 Agreement not enforceable by, 84 Option to bring, 71 Unsuccessful, award of compensation after, 84-88 Admission of liability, procedure where there is, 284-286, 362 Administration, letters of, need not be taken out, 260 Agreement to pay compensation What is, 83, 84 When to be registered, 247-255 And see Memorandum 537 538 INDEX Agricultural work Employment in, under Workmen's Compensation Act, 1900, 18 Meaning of, 117 Proviso as to, in sec. 4, 112 Amount of compensation See Compensation and Weekly payment 11 Ancillary to," 115 Annuity to be purchased in Savings Bank, 219 On redemption of weekly payment, 229, 230 Answer to application for arbitration, 283, 359-362 Anthrax may be an accident, 53 Appeal to Court of Appeal, 35, 238-243 Difference from provisions of old Act, 239 From decision of judge on question of law, 239 From decision or order, 240 Procedure on, 240, 318 Bequest to assess compensation, effect of, on right to, 242 Security for costs on, 241 Appeal to Divisional Court, no longer possible, 240 Appeal to House of Lords, 241 In Ireland, 266 In Scotland, 265 Procedure on, 241 Appearance in arbitration, by whom to be made, 244, 293 Application for arbitration Forms of, 327-356 Proceedings on, 291, 292 Apprentice Is a workman, 167, 174 And see Seamen Arbitration, 33-36, 235-247 By arbitrator agreed on by parties, 236 By arbitrator appointed by judge, 237 By committee, 235 By county court judge, 237 Costs of, 244-246 Parties to, before judge, 278, 279 Procedure on, 238 What questions settled by, 34, 83 Who may appear in, 243, 244, 293 Arbitration Act, 1889, does not apply to this Act, 238 Arbitrator agreed on by parties, 236 Has no special powers, 237 Bules do not govern, 237 Arbitrator appointed by judge, 158, 237 Application for, procedure on, 279-281 Forms of, 327-357 INDEX 539 Arbitrator appointed by judge, continued Can state case, 238 England, can only be appointed in, 287 Is governed by rules, 238 New, may be appointed by judge, 246 Powers of, 237 Benmneration of, 158 " Arising out of, and in course of, employment," 55-68 Action in emergency, 63 Breach of regulations, 65 Burden of proof, 65 Cases on, 55-68 Commencement of work, 56-60 Disobedience to orders, 67 Going to or from work, 56-62 Horseplay amongst workmen, 66 Lightning, death by, 67 Nature of act to which injury due, 62-68 " Out of " and " in course of " are separate points, 65 Premises of employer, 55 Risks incidental to employment, 66 Time and place where accident occurs, 56-62 Tort of stranger, 65, 66 Assessment of compensation where action fails, 84-88 By court trying action, 87 Certificate to be given, 88 Form of, 392 Costs, 87 When application for, should be made, 86 Assessor, medical referee may be summoned as, 243 Application for, 304 Form of summons, 393 Authorities, see Local authorities Average weekly earnings, 198-209 Board and lodging may form part of, 208 Break in employment, 202, 208 Concurrent contracts of employment, 199, 207 Do not include sum paid to cover special expenses, 199, 203, 208 Grade in employment, 199, 206 Law as to, under Workmen's Compensation Act, 1897, 200-204 Meaning of, considered by Court of Appeal, 204-207 Rules for determining amount of, 198 Tips may form part of, 208 What manner of gams included in, 203, 208 When accident occurs in first week of employment, 199, 204 Award Form of, 370-374 540 INDEX Award, continued How enforceable, 255, 316, 317 Liability declared by, 210, 251 Variation of, 216 BALLOT, opinion of workmen as to scheme to be ascertained by, 104, 106, 425 Bankruptcy of employer, 123-127 Alteration from old law, 125 Effect of, 125, 126 Exclusion of rules of bankruptcy in, 123 Priority of workmen, 123 Proceedings against insurers on, 294 Eights of employer against insurers, 125 Rights of workmen against insurers on, 126 Beat hand and beat knee, how far accidents, 54 Benefits outside Act to be considered in fixing compensation, 209-212 Benefits to workmen under scheme, 106 Blood-poisoning, how far accident, 50 Board and lodging may form part of average weekly earnings, 208 Break in employment Effect of, 202, 208 What amounts to, 202 " British ship," definition of, 137 Burial expenses Of seaman, 134, 140 And see Funeral expenses Bus conductor Position of, under former Act, 16, 175 under this Act, 175 Business Meaning of, 115, 171 Work carried on by local authority is, 184 CASUAL nature, persons in employment of, 169-171 Are not workmen, 167 Except in trades and businesses, 167 Cases on, 169, 170 Definition of, 171 Employment of charwoman, 169 Employment of window cleaner, 170 Trade or business, meaning of, 115, 171 Workman regularly employed in, 170 Certificate, under sec. 1, subsec 4, 85, 88 Form of, 392 Has force of an award, 85 To be given when compensation assessed on trial of action, 85 INDEX 541 Certificate, continued By medical referee, 222, 231 Form of, 392 Rules as to, 304 By certifying surgeon, 143, 150 And see Scheme Certifying surgeon, appeal to medical referee from, 149 Appointment of, 144 Certificate by, of industrial disease, 143 Duties of, 40, 151 Medical practitioner may be appointed to act as, 152 Begulations as to duties of, 435-452 Remuneration of, 436 Charwoman, position of, 169 Chief Registrar of Friendly Societies, see Scheme Children Illegitimate, 177, 182 Are dependants, 177 Position under old law, 182 Neglect of, 216-219 Court may vary order in cases of, 216 Posthumous, 181 Claim for compensation, 91, 97-103 Absence from United Kingdom, effect of, on, 101 Application for arbitration is, 97 Cases on, 97-101 Effect of defect in, 100 Failure to make, 101-103 Form of, 97 Need not be in writing, 97 When to be made, 91, 97 Coal mines, breach of regulations of, 77, 80 Coal Mines Regulation Act, 89 Committee, 33, 235 Either party may object to, 235 Home Secretary may confer special powers on, 262 How constituted, 236 May refer matter to medical referee, 236 May submit question of law to judge, 236, 292 Must be representative of employer and workman, 236 Must proceed within six months, 236 Must send memorandum of award, 236, 247 "Common employment," meaning of, 14 Common law, position of workmen under, 13 Compensation, 29, 191-198 Amount payable to partial dependants, 29, 194 Amount payable to total dependants, 29, 192 542 INDEX Compensation, continued Amount payable where no dependants, 30, 195 Amount payable during incapacity, 26, 195-198 Amount payable to workman under twenty-one years of age, 26, 198 Application of, power of court to vary, 216 Assignment of, 232 Benefits outside Act to be considered, 27, 209 In lieu of, not in addition to, wages, 68 Investment of, 213, 219 On bankruptcy of employer, 123-127 Payment into court of, 213 Redemption of, 27, 229-231 Returns as to, 164, 469 Review of award of, 27, 225-229 Right of solicitor to deduct costs from, 260, 261, 314 To whom paid, 260 Where as much earned after as before accident, 69-71, 251 Concurrent contracts of service, 199, 207 Effect of, in determining average weekly earnings, 207 Consular officers, duties of, under Act, 44, 134 Contracting out of Act, see Scheme Contractor, see Sub -contracting and Independent contractor Costs, 244-246 Arbitrator has no power to make successful party pay, 246 Are in discretion of arbitrator, 244 Cannot be set off, 246 County court, scale of, 245, 492-518 Deduction of, from compensation after unsuccessful action, 84 Difference from rules as to, under old Act, 245 Lien of solicitor for, 260, 314 Lump sum may be awarded for, 246 Not to exceed limit prescribed by rules, 244 Offer of compensation to be taken into account in award- ing, 246 Rules of court as to, 312 Security for, 241 Taxation of, 245, 261 Procedure on, 245 Review of, by judge, 244 County Court In which, proceedings should be taken, 256, 319-321 Where one party resides in Scotland, 257 County court judge, see Judge of county court County Officers and Courts (Ireland) Act, 234 Course of employment, see " Arising out of, and in course of, employment " INDEX 543 Court Fees General scale of, 492-518 Special scale of, 417-420 None payable before award, 258, 259 Except under Sched. I., para. 15, 258 Court of Appeal, see Appeal Crown, persons in service of, 20, 156, 157, 166 Are workmen, 167 Exceptions, 157 Power of Treasury to frame schemes for, 157 Who to be deemed employer of, 156 DEATH Injury must be cause of, 193 Of dependants, effect on right to be compensated, 182 Of employer, effect of, 165 Of workman, see Compensation Payment into Court on, 213 Serious and wilful misconduct is no defence in case of, 76, 81 Dentist, position of, under Act, 151 Dependants, 29, 177-183 Agreement with, to be registered, 247 Amount payable to, 191-195 Cases on, 179-183 Compensation to partial, 194 Compensation to total, 191 Death of, 182 Definition of, 177 Difference from position under old Act, 177 Financial and social position of, not to be considered, 178, 179 Illegitimate children are, 177, 182 Inheritance by, 193 Must depend on earnings, 178 Obligation to support, 180 Partial, 194 Position where both total and partial, 183, 192, 195, 215 Posthumous children are, 181 Presumption that wife is, 178, 180-182 Eights of, not extinguished by payments to workman, 192 Eights of workman and dependants are separate, 227 Total, 192 Voluntary support of relative by, 180 When to be made respondents, 102 Who are, to be settled by arbitration, 215 Is question of fact, 178 Who to take proceedings where several, 102 544 INDEX Detention of ships, 160-163 Application for, 160 Circumstances under which application may be made, 162 Form of application for, 375 Forms in proceedings for, 376-383 Persons giving security to be made parties, 162 Procedure for, 162, 295-298 Security may be accepted, 162 Disablement Affliction is not, 81 Cessation of, course to be taken on, 69-71 Date of, to be deemed date of accident, 145 Duration of, before case is within Act, 68 In cases of industrial disease, 143 Is question of fact, 69 Serious and permanent, 81 Where permanence doubtful, 82 Disease, see Industrial disease District of county court, 256, 319 Sheriff court has been held to be, 257 EARNINGS, see Average weekly earnings Election, see Option Emergency, action in, 63 Employer, 165, 166 Action against, 23, 71-75 Application for arbitration by, 102 Crown as, 156 Definition of, 165 Industrial diseases, 146-148 Legal personal representative of, 165 Local authority as, 184 Members of family of, 167, 171 No joint liability on, 166 Of person whose services are lent, 165 " Principal "as, 112-122 Returns to be made by, in certain industries, 164 Forms of, 469-475 List of industries, 469 Any industry in a factory, 470 Business of harbour, dock, &c., 470 Constructional work, 470 Mining, 469 Quarrying, 469 Railways, 469 Shipping, 470 Royal Household, head of department of, as, 156 INDEX 545 Employers' Liability Act, 1880, 14 Circumstances under which it applies, 15 Defects of, 16 Text of, 533 Who are within its provisions, 15 Employment Alteration in nature of, 203 Duration of, 199 " By same employer," meaning of, 208 Grades in, 206 Eisks incidental to, 66 What employments are outside Act, 47 And see " Arising out of, and in course of, employment " Examination, see Medical examination Execution, 316, 409-414 FACTORY AND WORKSHOP ACT, 89, 144 Family Member of, 183 Member of employer's, position of, 167 Fees, see Court fees Fine under Acts relating to mines, factories, and workshops, 88 Fright, may be an " Accident," 49 Forms, see Workmen's Compensation Forms Fortuitous event, is an " accident," 51 Friendly Societies, Chief Registrar of, see Scheme Friendly Societies Act, 233 Funeral Expenses, 21, 195 May be considered in assessing compensation, 195 Where no dependants, persons liable for, may recover, 195 GRADE of workman, 198 Meaning of, considered by Court of Appeal, 206 When to be considered in fixing average weekly earnings, 198 HOME SECRETARY, duties of, under Act, 39, 40 Committee, 40, 262 Examination of workmen, 40, 222, 453 Industrial diseases, 39, 151-153, 434, 476 Medical referees, 39, 158 Eeturns of compensation, 39, 164, 469 Horseplay among workmen, 66 ILLEGITIMATE children, 177, 182 In course of employment, see "Arising out of, and in course of, employment " 35 546 INDEX Incapacity If duration of, less than one week, 22, 68 If duration of, less than two weeks, 26, 197 Must be result of injury, 197 Workman need not undergo operation to be rid of, 197 Indemnity, 118, 128, 147, 162 From stranger to employer, 128 From sub- contractor to principal, 118 Questions as to, to be settled by arbitration, 128 Party from whom sought, how to be brought before court, 290 To person giving security on detention of ship, 162 Where several employers liable under sec. 8, 147 Independent contractor, 172-174 Distinguished from servant, 173 Evidence before Royal Commission, 172 Not within the Act, 172 Industrial disease, 22, 143-155 Accident may be, 144, 155 Application of Act to, 143 Compensation for, how fixed, 148 Contribution by other employers, 146-149 Declaration by workman that he has not suffered from, 145 Deemed due to nature of employment, when, 149-151 Disablement by, date of, 151 Due to nature of employment, how proved to be, 149 Employers, where several, position of, 146-149 Extension of provisions of Act to other diseases, 152, 476 Forms applicable to, 440-452 Insurance against, may be made compulsory, 153 List of, in Sched. III., 267 Further list of, 476 Medical men, duties of, as to Forms, in references to, 440-452 Application for reference, 445 Certificate of disablement, 441 Certificate of suspension, 443 Certificate refusing to suspend, 445 Certificate where disease not due to nature of employ- ment, 442 Decision of medical referee, 450 Medical referee's statement of fees, 451 Notice to employer, 450 Notice to workman, 441 Order of reference, 448 Order to workman, 449 Particulars for certifying surgeon, 440 Record of references, 452 INDEX 547 Industrial disease, continued Medical men, duties of, as to, continued Kegulations for, references to, 434-440 Certificate of disablement, 435 Fees payable, 436 Reference, 437 Eefusal to suspend, 435 Suspension of workman, 435 Where disease not due to nature of employment, 436 Modifications of Act, in cases of, 145-149 Notice of disablement, 149 Onus of proof, 149 Procedure, 298 Provisions where disease is one mentioned in Sched. III., 149 Rules, as to, 298 Amended rules, as to, 479 Suspension of workman from employment because of, 143 To whom notice to be given, 149 Where illness not proved due to nature of employment, 145 Where workman has served several employers, 146 Infant Agreement with, to be registered, 247-255 Compensation to, scale of, 198 How far agreement binding on, 84 May exercise option, 75 Review of payments to, 225 And see Children Injury by accident, see Accident Insurance Against industrial disease, 153 Home Secretary may compel, in certain industries, 153 In case of bankruptcy of employer, 123-127 Investment in Post Office Savings Bank, 219, 220 Ireland Appeal to House of Lords from, 266 Application of Act to, 233, 234 Application of Sched. II. to, 265, 266 JUDGE of county court, 36-39 Appeal from, 238 Only on question of law, 239 Appeal to From arbitrator, 238 From committee, 238 Duties of Investment, 37, 219 Medical referees, 36, 243 548 INDEX Judge of county court, continued Duties of, continued Neglect of children, 36, 216 New arbitrator, 36, 246 Registration of memorandum, 36, 247 Weekly payments, 36, 215 Variation of order, 216 May appoint arbitrator, 236 May settle matters, 237 Must act according to the rules, 238 Question of law decided by, 238 LABOUR, manual Meaning of, 175 Workman engaged in, 16, 175 Legal disability, agreement with persons under, to be registered, 247-255 Payments to persons under, when to be paid into court, 215 Form of payment in, 401 Lien for Costs, see Costs Lightning, workman killed by, 67 Local authority, work of, is " trade or business," 184 Lump sum, 229-231 Agreement for redemption by, may be made out of court, 231 Amount of, 230 Arbitrator may order to be invested, 230 Effect of not registering memorandum of, 257 Investment of, 229, 310 May be awarded for costs, 246 Memorandum of, to be registered, 247-255 Eedemption of weekly payments by, 229 MANAGER of coal mine, position of, 175 " Manager of ship," meaning of, 183 " Manual labour," meaning of, 175 " Master of ship," definition of, 136 And see Seaman Medical examination, 212, 220-225 During payments of compensation, 220, 221 Employer can demand, on claim being made, 212 Form of order to submit to, 398 Medical referee to give certificate, 222 Obstruction of, 213, 221, 307, 399 Suspension of payments pending, 213 Eeference of, to medical referee, 222 Regulations as to, 453 Eules as to frequency of, 222, 453 INDEX Medical examination, continued Eules of court as to, 305, 307 Where incapacity is admitted, 223 Medical expenses If no dependants, person liable for, may recover, 195, 214 Medical practitioner Duties of, on examination of workman, 41, 212, 220 Medical referee, 42, 43 Application for reference to, 243, 304 Appointment of, 158 Appointed to report, 262, 305 Assessor may be summoned to sit as, 243 Duties of, 42, 158, 222, 243, 262 Examination of workman by, 222, 223 Regulations as to references to and remuneration of, under sec. 8, see Industrial disease Regulations as to duties of and remuneration of, under Scheds. I. and II., 454 Forms Certificate as to condition of workman, 461 Notice to parties, 460 Order to workman, 465 Eecord of reference, 468 Reference, 463 Statement of fees, 466 Regulations as to Sched. I., para. 15, 456 Regulations as to Sched. I., para. 18, 457 Regulations as to Sched. II., para. 15, 457 Remuneration for sitting as assessor, 457 Report to arbitrator by, 262 Rules of court as to, 304-306 Members of crew of fishing vessel Position of, under sec. 7, 135, 142 Member of employer's family, 167, 171 Member of family, 183 Member of police force, 167, 184 Memorandum of agreement to pay compensation, 247-255 Agreement can be subject of, 251 Agreement for redemption of weekly payments, 250, 254 Agreement with person under disability, 250, 254 By whom to be sent, 249 Change from old Act, 249 Circumstances under which judge or registrar may refuse to register, 248, 250 Effect of not registering, 255 Enforceable as county court judgment, if registered, 252 Forms applicable to, 385-391 550 INDEX Memorandum of agreement to pay compensation, continued Not necessary to register, if award registered, 251 Not necessary to register, if matter decided by judge, 249 Eegister may be rectified, 248, 254 Registrar may refuse to register, 250 Rules of Court, 301-304 Time for registration, 252 To be sent to registrar of county court, 247 Merchant Shipping Act, 1894 Sec. 174, 141 Sec. 207, 140 Sec. 503, 140 Sec. 691, 139 Sec. 692, 161 Sec. 695, 140 Sec. 742, 138 Metalliferous Mines Regulation Act, 89 Military service, persons in, position of, 156 Misconduct, serious and wilful, 76-82 Accident may not be due to, 80 Being drunk is, 80 Breach of regulations in coal mine, 80 Burden of proof of, 79 Is a defence, 76 Unless death or serious and permanent disablement ensues, 76 Meaning of, 76 Meaning of " wilful," 77 Question of fact, is, 77 Sudden impulse is not, 79 NAVAL service, persons in, position of, 156 Neglect of children, 216-219 Court may vary order in cases of, 216 Negligence of master, effect of, 71 New trial, judge cannot grant, under form of review, 226 Notices in arbitration proceedings, forms of, 357-370 Notice of accident, 91-97 Absence from United Kingdom, 92, 96 Cases on, 93, 94 Effect of inadequate, 94 Effect of mistake in, 92, 97 Of industrial disease, 149 Requirements of, 93 Seamen, by, 133 To be given as soon as practicable, 95 Who to give, 95 INDEX 551 OBSTRUCTION of medical examination, 212, 220 " On, in, or about premises," meaning of, 120-122 Operation, workman need not undergo, 197 Option, 72-75, 85 Exercise of, by infant, 75 Joining scheme is exercise of, 75 Need not be exercised in action against stranger, 129 Under sec. 1, subsec. 2 (b), 72-75 Under sec. 1, subsec. 4, 85 What amounts to exercise of, 74, 75 When to be exercised, 75 " Out of, and in course of, employment," see "Arising out of, and in course of, employment " Outworker, 167, 184 Owner of ship, see Ship and Detention of ship PARTIAL Dependant, see Dependant Parties to arbitration Where indemnity claimed Under sec. 4, 119, 287 Under sec. 6, 131 Under sec. 8, 146-148, 299 Where interests of dependants and legal personal representative are adverse, 102, 103 Partner, is not a workman, 174 Payment into court In case of death, 213 Form of, 364 Method of, 307-309 Money may be transferred to another court, 214 Money paid in, to be invested, 213 Of medical and funeral expenses not necessary, 214 Of weekly payments, 215 Advisability of, 214 Application for, by person under legal disability, 215 Form of, 400, 401 Eules as to, 307-309 Amended rules as to, 480 Personal injury by accident, see Accident Persons liable for medical and funeral expenses Can recover compensation if no dependants, 195 Money need not be paid into court, 214 Pilots, position of, under sec. 7, 135, 142 Police force Meaning of, 184 Member of, is not a workman, 167 " Port," meaning of, 183 552 INDEX Post Office Savings Bank- Deposit in, 219, 220 Investment in annuity through, 219, 230 Posthumous child, 181 Preferential payment, 123-127 Of compensation when employer bankrupt, 123 None when employer insured, 123 Not to exceed 100, 124 Position under Stannaries Act, 124, 127 Preferential Payment in Bankruptcy Acts, 126, 127 " Premises, on, in, or about," meaning of, 120-122 Presumption that wife is a dependant, 178, 180-182 " Principal," 30, 112-122 In agricultural work, 117 Meaning of, 113 On, in, or about premises, 120-122 Eight of workman against, 117 Eight to be indemnified, 118 Trade or business of, 115 " Work undertaken " by, 113-115 And see Sub-contractor Proceedings For enforcing award, 317 Meaning of, 83, 102 Who to take, 102 QUESTION Settled by agreement, 83 Settled by arbitration, 83 What is, 82 Question of law Appeal from judge on, 239 Submission of, to judge, 238 Form of notice of, 375 EBDEMPTION of weekly payment, see Lump sum Eegister, special, 38, 322 Form of, 415 Of proceedings under Act, to be kept, 38 Eules as to, 322-325 " Eegistered British ship," definition of, 137 Eegistrar of county court, duties of, 36-39 Investment of money paid into court, 219 Eegistration of memorandum of agreement, 247-255 Special register, 38, 322 Eegistrar of Friendly Societies, see Scheme Eegistration of memorandum, see Memorandum of agreement INDEX 553 Remuneration of workman If exceeding JG250 per annum, excludes from Act, 167 How to be calculated, 168 Eepeal of Workmen's Compensation Acts, 1897 and 1900, 190 Residence abroad, see Workman residing abroad Returns as to amount of compensation, see Employer Review of weekly payments, 225-229 Claim for, cannot be joined with claim for redemption, 228 If payments terminated on, no further review possible, 226 May be antedated, 227 May take place on request of either party, 225 May take place out of court, 227 Must be alteration in circumstances before, 226 What amounts to alteration in circumstances, 226 Where workman under 21 at date of accident, 225-228 Risks incidental to Employment, see " Arising out of, and in course of, employment " Royal Household, head of department in, to be deemed employer, 156 SAILORS, see Seamen Scale of compensation, see Compensation Scheme for contracting out of Act, 24, 104-111 Acceptance of, is exercise of option, 75, 110 Ballot, opinion of workmen to be ascertained by, 104 Benefits to workmen under, 104, 106 Certificate of, 105, 107 Difference from old Act, 109 Division of money held for purposes of, 108 Duties of Chief Registrar of Friendly Societies, 43, 104, 187 Provisions of, 104, 106 Regulations made by Chief Registrar of Friendly Societies, 106, 421-433 Fees payable, 422 Forms Application for certificate, 423 Application for certificate for partial amendment, 429 Application for recertification, 426 Application for renewal of certificate, 430 Complaint by workman, 432 Declaration verifying ballot, 425 Renewal of certificate, 105, 107 Revocation of certificate, 105, 108 Workman can retire from, 107 Workman need not join, 107 Schemes under Workmen's Compensation Act, 1897, 187-189 Effect of this Act on, 187 Effect of not recertifying, 188 554 INDEX Schemes under Workmen's Compensation Act, 1897, continued- Position of workman who joins before recertification, 189 Recertification of, 188 Bequirements for recertification, 188 Scientific chemist, position of, 175 Scotland Appeal to House of Lords from, 265 Application of Act to, 186 Application of Sched. II. to, 264 Seamen, 20, 133-142 Application of Act to, 133 Apprentices to sea service, 133, 136 Burial expenses of, 134, 140 Claims for compensation by, 133 Crew of fishing vessel, 135, 142 Definition of, 136 Evidence of accidents to, taken abroad, 134, 139 Forms in proceedings by, 341-347 Masters of ships, position of, 136 Notices by, 133, 139 Modifications of Act in application to, 133-135 Naval service, persons in, position of, 156 Notices by, how given, 133 Pilot, position of, 135, 142 Position of, under old Act, 136 Rules in proceedings by, 294 Where ship lost, position of, 135, 141 Secretary of State, see Home Secretary Security, see Detention of ship Security for costs in Court of Appeal, 241-243 Amount of, 241 Duty of appellant to offer, 242 Trades Union, case fought by, 241 Ordinary rule applies, 241 Exceptions, 241, 242 Where poverty caused by accident, 241 Serious and permanent disablement, see Disablement Serious and wilful misconduct, see Misconduct Servant, distinguished from independent contractor, 172-175 Sheriff Court (Scotland) Act, sec. 52, 265 Ship- Definition of, 138, 183 Detention of, 160-163 Application for, how made, 162 Forms for, 375-383 Person giving security to be defendant, 162 Rules for, 295-298 Security accepted, 162 INDEX 555 Ship, continued Distinction between vessel and, 138 Owner of, when liable to pay compensation, 32, 162 Presumption of loss of, 141 " Kegistered British," definition of, 137 Shipowner Claim by master against, how made, 139 Indemnity of, by owner of ship in fault, 134 Limit of indemnity, 135, 140 Liability to pay compensation not limited, 134, 140 Shipowners' Negligence Act, 161 Soldier, position of, 156 Solicitor Costs of, 260, 261, 314, 409 Undertaking by, on detention of ship, 162, 297 Special register, 38, 322-325 Form of, 415 Of proceedings under Act, to be kept, 38, 322 Eules as to, 322-325 Stannaries Act, sec. 9, 124, 127 Stranger, 24, 128-132 Change from old law in action against, 129 Circumstances under which employer is indemnified by, 128, 131 Option need not be exercised in claim against, 129 Workman cannot recover against employer and, 129, 130 Workman may sue both employer and, 129 Sub- contracting, workman may sue principal in cases of, 30, 112-122 Agricultural work, proviso as to, 112, 117 Difference from old Act, 113 Object of section, 113 Principal may seek indemnity from sub-contractor, 118 " Undertaken," meaning of, 113-115 Where work for purposes of trade or business, 115 Where work " on, in, or about premises" of employer, 120-122 Superannuation Act, sec. 1, 157 Surgeon, see Certifying surgeon Suspension from employment, see Industrial disease Suspension of payments during obstruction of examination, 232 TAXATION of costs, 244-246, 260, 261 Change from old law, 245 Procedure on, 245 Review of, by judge, 244, 313 Bules dealing with, 312 Third parties, see Parties to arbitration Tips may form part of weekly earnings, 208 Tort of stranger, how far " arising out of employment," 65, 66 556 INDEX Total dependant, see Dependant Trade or business Meaning of, 115, 171 Sub-contracting for, 115 Where employment is casual, 167 Work of local authority is, 184 Treasury, duties of, under Act, 44 Tribunals under Act, 33, 235-237 And see Arbitration Trustee in bankruptcy of workman Acquires no right to weekly payments, 232 " UNDERTAKEN by principal," meaning of, 113-115 " Undertaker," meaning of, in Workmen's Compensation Act, 1897, 17, 113 VARIATION of order of court, 216-219 Forms for, 402 In cases of alteration of circumstances, 217, 218 In cases of neglect of children, 217 Position as to, under old Act, 218 Rules on application for, 310 WEEKLY earnings, see Average weekly earnings Weekly payment Amount of, 195-197 Fixing of, may be adjourned, 69, 70 Benefits outside Act to be considered in fixing, 209 Cannot be assigned, charged, or attached, 232 Costs not to be set off against, 232, 260 Discretion to be exercised in fixing, 196 Does not pass to trustee in bankruptcy, 232 Full amount of loss of earnings may be awarded, 196 Memorandum of, when to be registered, 247-255 Not to exceed 50 per cent, of earnings, 195 Payment into court of, 215 Redemption of, 229-231 Review of, 225-229 Wholly dependant, see Dependant Wife, presumption of dependence of, 178, 180-182 Window cleaner, position of, 170 Workman, 19, 166-176 Absence of, from United Kingdom, see Workman residing abroad Bankruptcy of employer, rights of, on, 123-127 Casual nature in employment of, 169-171 Charwoman, position of, 169 Crown, persons in service of, 156 Definition of, 166 INDEX 557 Workman, continued Distinction between independent contractor and, 172-174 Legal personal representative of, 176 Manager of coal mine, position of, 175 Manual labour by, 175 Member of employer's family is not, 166, 171 Member of police force is not, 166, 184 Outworker is not, 166, 184 Partner is not, 174 Persons earning more than ^250 per annum are not, 166, 168 Persons in naval and military service are not, 156 Remuneration of, how calculated, 168 Scientific chemist, position of, 175 Where services of, are let on hire, 165, 166 Window cleaner, position of, 170 Workman residing abroad, 231, 232 Ceases to be entitled to weekly payment, 231 Unless incapacity permanent, 231 Certificate to be given to, 231 Forms to be used where, 402-408 Rules as to, 310 Amended rules as to, 483 Workmen's Compensation, 1897, 16-18 Application of, 17 Defects of, 18 Improvement in law effected by, 17 Repeal of, 190 Text of, 519-531 Workmen's Compensation Act, 1900, 18 Application of, 18 Repeal of, 190 Text of, 532 Workmen's Compensation Forms, 1907, 327-416 Addition of respondents, 366 Admission of liability, 362 Answer oy respondent, 359 Applications for arbitration, 327-357 Application to vary order, 402 Award, 370 Certificate under sec. 1, sub-sec. 4, 392 Detention of ships, 375 Execution, 409 Industrial diseases, 351-355 Medical referee, 393-398 Memorandum of agreement, 385-392 New arbitrator, 384 Obstruction of examination, 399 558 INDEX Workmen's Compensation Forms, 1907, continued- Payment into court, 364, 400, 401 Eegister, 415 Solicitor's costs, 409 Special case, 375 Submission to award, 363 Weekly payments, 365 Workman residing abroad, 402-408 Workmen's Compensation Rules, 1907, 271-326 Answer by respondent, 283 Appeals, 318 Appearance of parties, 293 Application for arbitration, 279 Appointment of arbitrator, 281 Award, 290 Certificate under sec. 1, sub-sec. 4, 304 Change of court, 320 Costs, 312-316 Court, 319 Detention of ships, 295 Execution, 316 Explanatory memorandum, 271 Filing documents, 321 Fixing day, 291 Indemnity under sec. 4, 287 Indemnity under sec. 6, 288 Industrial diseases, 298 Insurers, 294 Judge to take notes, 294 Lump sum, 310 Medical referees, 304, 325 Memorandum of agreement, 301-304 New arbitrator, 300 Obstruction of examination, 307 Parties to arbitration before arbitrator, 278 Parties to arbitration before judge, 278 Payment into court, 284, 307-309 Procedure on arbitration, 281, 291, 292 Question of law, 292 Seamen, 294 Service on respondents, 282 Special register, 322 Submission to award, 284 Suspension of proceedings, 307 Third party procedure, 290 Variation of order, 310 Workman residing abroad, 310 INDEX 559 Workmen's Compensation Rules, 1908, 479-491 Explanatory memorandum, 491 Forms, 484-490 Industrial diseases, 479 Parties to arbitration, 479 Payment into court, 480 Workman residing abroad, 483 fjrws, UNWIN BROTHERS, WOKIKO AND LONDON. 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