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 Ithaca^ New York 
 
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LT.^ ««-.«92!?*" University Library 
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^ tAc - ^^-^^ ^ '^ 
 
 
 THE I.AW OF EMPLOYERS' LIABILITY 
 AND WORKMEN'S COMPENSATION 
 
THE 
 
 LAW OF EMPLOYERS' LIABILITY 
 
 AND 
 
 WORKMEN'S COMPENSATION 
 
 FOURTH EDITION 
 
 BY 
 
 THOMAS BEVEN 
 
 OP THE INNER TEMPLE, BARRISTER-AT-LAW 
 
 LONDON 
 
 STBVliNS & HAYNES 
 
 13, BELL YARD, TEMPLE BAB, W.C. 
 1909 
 
PBINTED BY 
 
 WILLTABI CLOWES AND SONS, LtMITKD, 
 
 LONDON AND BECCLBS, 
 
xfliB^: 
 
 TO 
 
 HEEBEET EEED, Esq., K.C. 
 
 1 TemfiiE Gabdxiib, 
 
 Temple, E.C, 
 
 November, 1908. 
 
 Bear Beed, 
 
 In the preface to tMs hook I tell how I was 
 led by yov, {though there I do not give your name) to 
 try and write a law-book. Will you, then, accept 
 the dedication of this the last-born offspring of your 
 cowmelf For I want to make manifest my debt 
 to you and my pride in having your goodwill and 
 friendship. 
 
 Sincerely yours, 
 
 THOMAS BEVEN. 
 
PREFACE 
 
 In the spring of 1880, when I had almost unbroken leisure, 
 and the most elementary knowledge of any branch of the 
 common law, a friend suggested to me that the best way to 
 learn law and to checkmate laziness, with the incidental 
 advantage of some possible advertisement — to those Argus- 
 eyed wise men, the distributors of legal business — of 
 an utterly unknown name, was to write a law book. He 
 flattered me that my thin veneer of knowledge of law 
 would pass muster in the ranks of that patient crowd to 
 whom paste and scissors are the most efficient instruments 
 in marrying new statutes to fragments of old newspapers. 
 He suggested that the bill then before parliament, which 
 later became the Employers Liability Act, 1880, was the 
 opportunity of my life. He did more : he introduced me 
 to a publisher who was ready to pay money for my toils ; 
 and who, when he made his contract, left with me a great 
 parcel of newspaper cuttings, which were a nuisance to me 
 and nothing else; till some years afterwards, I mustered 
 courage, though with many compunctions, to burn them. 
 
 It is now twenty-eight years since the book I then 
 wrote appeared. I cannot say that I ever had any pride in 
 my achievement — much humility rather. Still, it did 
 passably well. The first lot of copies, indeed, perished in 
 an accidental fire at the printers ; but a second got fairly 
 well circulated, and justified my friend by bringing me 
 some small gains in the shape of county court briefs — in 
 general, very frugally marked — and by making me at home 
 with the itineraries of the London courts. A couple of 
 
 62 
 
viii Preface 
 
 years later the publishers told me that I might set to work 
 at a second edition ; but I was then much occupied in 
 another direction, and did not act on their permission. 
 Accordingly, there was no second edition, and the book 
 died out. When the Workmen's Compensation Act, 1897, 
 was taking shape I again heard from the publishers ; who 
 asked me whether I would bring my old book up to date, 
 and add the Workmen's Compensation Act, 1897, thereto. 
 Thereupon, I inspected a copy that had escaped oblivion, 
 but quickly made up my mind that oblivion was its 
 inevitable fate. I, however, as an alternative, set to work 
 at a book — with the same general arrangement that this 
 has — in three parts, dealing respectively with the general 
 law on employers' liability, the Act of 1880, and the 
 new legislation of 1897. 
 
 The common law portion was dealt with in a series of 
 propositions in the manner of a digest, and the two statutes 
 that made up the second and third parts were merely 
 annotated in the same way as the old book was. Again 
 the venture was mildly successful, and a second edition 
 followed. When a third edition was asked for I had 
 become very dissatisfied with the ineffectiveness of the 
 method of annotating section by section. The method 
 seemed to me as wholly incompatible with any connected 
 view of the subject dealt with as it is with even the 
 meanest condition of literary finish ; so I wholly rewrote the 
 portion on the Workmen's Compensation Act in the apo- 
 deictic and narrative way. Practical difficulties interfered, 
 with my doing the same with the Employers Liability 
 Act, which I promised myself to treat harmoniously, if ever 
 I had the opportunity. 
 
 When the Act of 1906 was maturing I again heard from 
 my publishers. I was then in the thick of other work, 
 and could not undertake at the moment either a new book 
 
Preface ix 
 
 or a new edition. But when I finished the book on which I 
 was then working the practical diflSculty in the way of 
 dealing as I wanted with the Employers Liability Act 
 was moved out of my, path; and, in this fifth attempt, 
 I was at liberty to try to do something on a reason- 
 ably complete and consistent plan. The result is now 
 before the reader for his judgment. 
 
 But why all this explanation ? Mainly because I want 
 to show that I have not to justify my right to exist against 
 the crowd of my competitors, six or seven and twenty of 
 them, but only to continue to exist ; since my appearance 
 in this field is before that of any of them, at least of any who 
 continues anywhere nearly up to date; and to hint that 
 here is to be found what may not be elsewhere similarly 
 treated. 
 
 The distribution of matter is the same as in the old 
 book. The first part deals with the law apart from the 
 Employers Liability Act, 1880, and is mainly carried on 
 from the former edition, with about twenty-five per cent, of 
 additions. In no region of the common law are its pre- 
 vailing merits of flexibility and adaptability mof e strikingly 
 manifested than in this. Among the judicial decisions of 
 the past five and twenty years which are here recorded, are 
 some enunciating principles that beyond question would 
 have been scouted, whether as law or logic, by the hard- 
 headed, and, perhaps, (at least in the work of their ofSce) 
 hard-hearted common law judges of the middle of the last 
 century ; such, for example (and there are many more of 
 the same type), as the canon in Williams v. Birmimgham 
 Battery and Metal Co., [1899] 2 Q. B. 338 at 345, that 
 negatives what was once a universal principle, that every 
 rational human being of full age must be presumed to 
 intend the reasonable and natural consequences of his 
 actions. Yet this novelty in law and paradox in reason 
 
X Preface 
 
 has passed into the region of the recognised doctrine of 
 the English law with little more than a raised eyebrow 
 of dissent. With judges prepared to go so far along 
 with popular sentiment the common law would probably 
 readily have been moulded to modern sentiment if time 
 had only been given it to develop, without the butcherly 
 methods by which sometimes legislatioii works. 
 
 The second part of this book deals with the Employers 
 Liability Act, 1880 — no longer annotated as of old — but 
 narratively and apodeictically treated. The text of the 
 Act is plainly printed at the beginning of this part without 
 note or comment of any sort. At the foot of the page there 
 are numerical references to the places in the treatise where 
 the authorities are marshalled, or the text of the Act is 
 discussed. 
 
 I was confirmed in the advantage of this way of treat- 
 ment very shortly after my last edition was published, in 
 which it was applied to the Workmen's Compensation Act 
 (as it continues to be in this present) when I met a judge 
 into whose court very many of the cases under the Act 
 find their way. He stopped me and said: "I use your 
 book in my court. It is a very good one. The chief 
 advantage of it is that you print the Act in legible type 
 unencumbered with note or comment, so that one can see 
 what it says." If my present book has no other merit, at 
 least it retains this. If note or comment is a comfort to 
 any, he can revel in them, perhaps, more abundantly than 
 elsewhere. 
 
 The case law under the Employers Liability Act, 
 1880, is now pretty nearly complete: there are few 
 problems that are not solved by authority; and the Act 
 is become assimilated with the common law. The note 
 of the Act is that negligence connotes liability; with the 
 saving that the employer is not chargeable where he has 
 
Preface xi" 
 
 used due care in engaging his workmen, from results 
 accruing from their inherent imperfections, whether of 
 temper or training, that he has been unable to discover. 
 A perfect workman is even harder to come by than a 
 perfect machine, and the employer's obligation in each case 
 is not dissimilar. Certain — maybe irrational — exceptions 
 to this principle have been — perhaps summarily, but not 
 unwisely — brushed away. 
 
 The Act has been adopted — sometimes textually — in our 
 Colonies and through the United States; so that my 
 analysis has been minute, although, I hope, not overlaid 
 with excessive detail. 
 
 The third part of this book deals with the Workmen's 
 Compensation Act, 1906. I have yielded to the temptation 
 of putting patches of the old cloth into a new garment. 
 Now that the total work is before me I see that I have, 
 in consequence, often failed in brevity, and, I fear, occasion- 
 ally in clearness, in not, as I had better have done, casting 
 aside all the old and rewriting all. But — 
 
 " Wliat is writ is writ, 
 Would it were worthier ! " 
 
 The Act does not readily lend itself to the application 
 of familiar legal principles. The method of dealing with 
 " serious and wilful misconduct," " industrial diseases," and 
 in this connection with fraudulent misrepresentation " not 
 in writing," " illegitimate children," " casual employment," 
 " concurrent contracts," to mention only a few of its features, 
 requires a faculty of mental adjustment, perhaps not ordi- 
 narily possessed, save by the philosophers of the Trade 
 Unions or politicians panting for a seat in Parliament on 
 any terms. The note of all this seems not inaptly summed 
 up in the formula, " The real friend is Codlin, not Short." 
 
 Nevertheless, it is a vast improvement on the bungling 
 old Act with its oft absurdities. There is nothing in the 
 
xii Preface 
 
 new quite so humorous as that provision of the old (in the 
 light of the illumination of it by the Court of Appeal) that 
 a loose board thrown on the roof of a house may possibly be 
 a "scaffolding; " e.g. Yeazey v. ChattU, [1902] 1 K. B. 494. 
 Still those old brocades of the Common law : Cvlfa tenet 
 suos auctores tmtwm, and, " loss lies where it falls," are very 
 despitefuUy entreated ; and a principle that industry must 
 maintain its " wounded soldiers," proportionably made much 
 of ; while great gaps are hewn in the logical symmetry of 
 our knowledge in the cause of brotherly love — largely at 
 our neighbour's cost. 
 
 Yet both men individually, and society at large, have a 
 wonderful power of adapting themselves to their environ- 
 ment. As the old order passes away, the new will have to 
 settle many, at first sight, insoluble problems with political 
 economy and political philosophy ; but the cruder aspects of 
 incongruity will doubtless be toned down as the new system 
 develops itself in the hands of the experienced judges of the 
 Court of Appeal, who already, in a series of notable judg- 
 ments (which it is the fortune of the late appearance of this 
 book to be able to include and to study) have laid down 
 sound principles for its building up. 
 
 Hardship and suffering must be caused in the adjustment 
 of the old habits to the new principles ; and the indications 
 are that on the working classes will fall the stress of them. 
 " Too old at forty " is a terrible, even if true, verdict ; and 
 an old age pension at seventy does not lighten the burden 
 of the intervening years. It is not the less certain that the 
 burden will be lightened in ways we cannot exactly forecast, 
 but which must follow from those principles — of recognition 
 of the rights of others — that are at the root of all systems 
 of organised society. 
 
 The appendix is of unreasonable size, though I have 
 striven to keep it in bounds. The Workmen's Compensation 
 
Preface xiii 
 
 Act was at first intended to be so simple that a workman 
 without aid of counsel or solicitor, should be able to get the 
 advantage it gives him from his employer. To work out this 
 object, a power to make rules is given to a body of County 
 Court Judges, Their first effort in simplifying produces 85 
 rules, some of which meander through pages of print, and 
 are made, if it were possible, more intolerable by 67 forms 
 attached to them by way of appendix. Then, within a twelve- 
 month, pages more of rules and forms are produced. The 
 Treasury joins in showering its benefit of rules on the work- 
 man, and so does the Home Secretary, and so do Treasury 
 and Home Secretary jointly, and so does the Eegistrar 
 of Friendly Societies. 
 
 I hardly venture to groan under this pestilent abuse by 
 all these high authorities of the power to make rules. This 
 is only a somewhat exaggerated and flagrant instance of 
 what is being done on all sides every day, from the by-laws 
 of a water board or a rural district sanitary authority, to the 
 regulations of the Inland Kevenue Authorities. 
 
 We live under a network of by-laws and regulations, 
 which, if not more indulgently administered than made, 
 would make reasonably comfortable existence impossible. 
 It is a pity that the reasonable methods of the common law 
 are not more trusted to, and that, instead, resort is made 
 on the slightest or no provocation to the peddling 
 pedantries of indefinite code making. 
 
 The Table of Statutes is the work of Mr. H. W. Prichard, 
 of Gray's Inn, who has also helped me very considerably 
 with the Index, and taken the entire charge of seeing it 
 through the Press. 
 
 The Table of Cases is the joint work of Mr. H. W. 
 Prichard and of Mr. Harold W. Pollock, of the Inner 
 Temple, joint editor of the last edition of Eussell on 
 Arbitration. 
 
xiv Prefcux 
 
 The list of Corrigenda is long and requires explanation 
 and apology. The proof sheets of the earlier portion 
 of the book, all that portion which precedes the Work- 
 men's Compensation Act, 1906, were revised by me during 
 the long vacation at a distance from London where I 
 had very few trustworthy reference books at hand. I 
 depended, for that minute accuracy which is so neces- 
 sary, on a method of checking references that I had several 
 times previously successfully used; but which through a 
 misunderstanding failed me on this occasion; but this 
 breakdown was not discovered by me till the sheets to 
 page 295 were printed off. Then Mr. Harold W. Pollock 
 most generously volunteered the exasperating work of 
 checking every reference throughout the book. The minute 
 accuracy with which he has worked is manifest not only in 
 the long list of corrigenda, but in the nature of most of them. 
 I hope his labours will countervail my oversights ; for 
 which, with those others of style, treatment or judgment, 
 that the critical reader may find, I humbly ask the 
 indulgence of all who do me the favour to use my book. 
 
 THOMAS BEVEN. 
 
 1 Temple Gardens, 
 
 Temple, E.G., 
 
 December, 1908. 
 
TABLE OF CONTENTS 
 
 PAGIi 
 
 Dedication v 
 
 Pkepace . ... vii 
 
 Tablk or Cases xxi 
 
 Table op Statutes . . Ixxix 
 
 COBEIGENDA ET ADDENDA . IxXxiv 
 
 PART I 
 EMPLOYEES' LIABILITY AT COMMON LAW 
 
 CHAPTER I 
 Peeliminaky and Definitions .3 
 
 CHAPTER II 
 
 The Position op the Emploter-and his Wokkmen at Common 
 Law 19 
 
 CHAPTER III 
 Negligence 49 
 
 CHAPTER IV 
 
 CONTKIBUTORY NEGLIGENCE 85 
 
xvi Table of Contents 
 
 CHAPTER V 
 
 PAGB 
 
 Lord Campbell's Acts, otherwise the Fatal Accidents 
 Acts, 1846-1864 101 
 
 PART II 
 
 THE EMPLOYEES LIABILITY ACT, 1880 
 
 Text op the Act 123 
 
 CHAPTER VI 
 
 Commentary 131 
 
 Service op the Employer 138 
 
 Scope op Employment 141 
 
 Propositions . - 145 
 
 I. Defect in Condition 156 
 
 Ways 168 
 
 Works 173 
 
 Machinery 175 
 
 Plant .181 
 
 II. Negligence in Superintendence 197 
 
 III. Injury through conforming to Orders .... 207 
 
 IV. Obedience to Rules oh Bye-Laws causing Injury . . 224 
 
 "V. Charge or Control of any Signal, Points, &c., on a 
 
 Railway 234 
 
 Compensation 238 
 
 Notices of Action and Injury 255 
 
 Workman defined 266 
 
 Infants' Contracts 280 
 
 Government Employments 283 
 
 Contractor and Employer 284 
 
 Contract of Service 288 
 
 Rights in which one may be on premises . . . .292 
 
 Note on Contracting Out 294 
 
Table of Contents xvii 
 
 PART III 
 WORKMEN'S COMPENSATION ACT, 1906 
 
 FADE 
 
 Text of Act 299 
 
 CHAPTER VII 
 THE RIGHTS CONFERRED 
 
 commentaby 345 • 
 
 Injuey by Accident 346 
 
 Industrial Diseases 355 
 
 CouBSE or Employment 369 
 
 Weebxy Eaknxnos ... 391 
 
 Seeiotts asd WiLroL Misconduct 394 
 
 No Double Compensation' . . ■ 412 
 
 Workmen's Option . . 416 
 
 Contracting out of Act 427 
 
 CHAPTER VIII 
 WORKMEN AND EMPLOYER 
 
 Workmen 441-462 
 
 Seamen 450 
 
 Casual Employment 455 
 
 Dependants 462 
 
 The Employer 477 
 
 Sub-Contracting 481 
 
 Indemnity undee Sect. 4 512 
 
xviii Talle of Contents 
 
 CHAPTER IX 
 COMPENSATION 
 
 PAGE 
 
 (1) Compensation to the Relatives in Case of Death . . 518 
 
 (A) Total Dependency 518 
 
 (B) Partial dependency 547 
 
 (C) Where no Dependants are left 551 
 
 (2) SUSTBNTATION TO A WOKKMAN INJUKED .... 552 
 
 (A) Totally Disabled 552 
 
 (B) Partially Disabled . . ... 558 
 
 General Pbinciples of Wokking the Act . . . . 560 
 
 CHAPTER X 
 PROCEDURE 
 
 Proceedings 596 
 
 Notice of Accident . . .... . 600 
 
 Claim fok Compensation ... .... 607 
 
 Request foe Akbitration 619 
 
 Arbitration ... . 622 
 
 Costs 642 
 
 The Memoranddm 660 
 
 County Court Jurisdiction 670 
 
 Medical Examination and Medical Referees . . . 675 
 
 Employer's Indemnity under Sect. 6 687 
 
 Detention of Ships . _ 697 
 
 General Provisions 702 
 
 APPENDICES 
 
 APPENDIX A 
 
 Forms op Notices necessary under the Employees Liability 
 Act 1880 .... 
 
 707 
 
Table of Contents xix 
 
 APPENDIX B 
 
 PAGE 
 
 The Workmen's Compensation Rules, 1907 .... 715 
 Forms 767 
 
 The Woekmen's Compensation Rules, 1908 .... 836 
 Form 841 
 
 Order of the Treasury of May 30th, 1907, regulating Fees in County 
 Courts 846 
 
 Order of the Secretary of State, dated May 22nd, 1907, extending 
 the Provisions of the Workmen's Compensation Act, 1906, to 
 certain Industrial Diseases 850 
 
 Regulations, dated Jime 21st, 1907, made hy the Srecetary 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 sect. 8 of the Act 852 
 Forms 859 
 
 Regulations, dated June 24th, 1907, made by the Secretary of State 
 and the Treasury as to the duties and remuneration of Medical 
 Referees in England and Wales under the provisions of the First 
 and Second Schedules to the Workmen's Compensation Act, 1906 869 
 Forms 875 
 
 Regulations of the Secretary of State, dated June 28th, 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 . . . . 883 
 
 Regulations, dated July 1st, 1907, made by the Chief Registrar of 
 Friendly Societies under the Workmen's Compensation Act, 1906 884 
 Forms 886 
 
 Workmen's Compensation Rules, 1908 (No. 2) ... 895 
 Index 901 
 
TABLE OF CASES 
 
 Abbott V. Maofie, see Hughes v. Macfie. page 
 
 Abel V. Lee, [1871), L. R. 6 C. P. 365 ; 40 L. J. C. P. 154 ; 23 L. T. 
 
 844; 19W.R. 625 362 
 
 Aberdeen Steam. Trawling and Pishing Co. v. Gill, 45 So. L. R. 247, 
 
 see Gill v. Aberdeen, etc., Pishing Co. 
 Abley v. Dale, (1851), 11 C. B. 378 ; 20 L. J. C. P. 233 ; 2 L. M. & P. 
 
 433 ; 15 Jur. 1012 ... 362 
 
 Abraham or Abrahams v. BuUook, (1902), 86 L. T. 796 ; 30 W. R. 626 ; 
 
 18T. L.R.701 70,140 
 
 Abraham v. Reynolds, (1860), 5 H. & N. 143 ; 1 L. T. 330 ; 8 W. R. 
 
 181 ; 6 Jur. (N. S.) 53 48 
 
 Abrahams v. Deakin, [1891] 1 Q. B. 516 ; 60 L. J. Q. B. 238 ; 63 
 
 L. T. 690 ; 39 W. R. 182 ; 55 J. P. 212 ; 7 T. L. R. 117 151, 153 
 
 Abram Coal Co. v. Southern, [1903] A. 0. 306 ; 72 L. J. K. B. 691 ; 89 
 
 L.T.103; 19T. L. R. 579; 5 W. C.C.125 532 
 
 Adam v. British and Foreign Steamship Co., Ltd., [1898] 2 Q. B. 
 
 430 ; 67 L. J. Q. B. 844 ; 79 L. T. 31 ; 14 T. L. R. 540 ; 8 Asp. 
 
 M:.C.420 103 
 
 Adams v. Lancashire & Yorkshire Ry. Co., (1869), L. R. 4 C. P. 
 
 739; 88 L.J. C. P. 277; 20 L.T. 850; 17 W.R. 884 52 
 
 Adams u. Nightingale, (1882), 72 L. T. newspaper, 424 260 
 
 Adams v. Shaddock, [1905] 2 K. B. 859 ; 75 L. J. K. B. 7 ; 93 L. T. 
 
 725; 54W.R.97; 22T.L.R.15; 8W.O.C.58 509 
 
 Adamson v. Jarvis, (1827), 4 Bing. 66 ; 12 Moore C. P. 241; 5 L. J. 
 
 (0. S.) C. P. 68 ; 29 R. R. 503 154 
 
 Adlington v. Conyngham, [1898] 2 Q. B. 492 ; 67 L. J. Q. B. 926 ; 
 
 79L. T. 232 654 
 
 Aitken v. Newport Slipway Dry Docks, (1887), 8 T. L. R. 527 ... 200 
 AUen V. Flood, [1898] A. C. 1 ; 67 L. J. Q. B. 119 ; 77 L. T. 717 ; 
 
 46 W. R. 258 ; 62 J. P. 595 ; 14 T. L. R. 125 15 
 
 Allen V. L. & S.-W. Ry. Co., (1870), L. R. 6 Q. B. 65 ; 40 L. J. Q. B. 
 
 55 ; 23 L. T. 612; 19 W. R. 127; 11 Cox C. C. 621 153 
 
 AUen V. New Gas Co., (1876), 1 Ex. D. 251 ; 45 L. 3. Ex. 668 ; 34 
 
 L. T. 541 ... 30,79 
 
 Allmaroh v. Walker, (1885), 78 Law T. newspaper, 391 ... 182, 206 
 
 Allsop V. AUsop, (1860), 5 H. & N. 534 ; 29 L. J. Ex. 315 ; 2 L. T. 
 
 290; 6Jur. (N. S.)438; 8W.R.449 5 
 
 Alsop or Assop v. Yates, (1857), 2 H. & N. 768; 27 L. 3. Ex. 156 ... 27, 70 
 Alton V. Midland Ry. Co., (1865), 19 C. B. N. S. 213 ; 84 L. J. C, P. 
 
 292 ; 12 L. T. 703 ; 13 W. R. 918 ; 11 Jur. (N. S.) 672 4, 416 
 
 B.E.L. '' 
 
xxii Table of Cases 
 
 FAQB 
 Anderson v. Blackwood, (1886), 13 R. 443 ; 23 Sc. L. R. 227 ... 91 
 
 Anderson v. Eayner, [1903] 1 K. B. 989 ; 72 L. J. K. B. 292 ; 88 L. T. 
 
 313 ; 51 W. R. 369 ; 19 T. L. R. 297 ; 9 Asp. M. C. 395 ... 398 
 
 Anderson v. William Balrd & Co., (1903), 5 P. 373 ; 40 Sc. L. R. 263 ; 
 
 lOSo. L.T. 525 578 
 
 Andrew v. Pailsworth Industrial Society, Ltd., [1904] 2 K. B. 32 ; 
 
 73 L. J. K. B. 510 ; 90 L. T. 611 ; 52 W. R. 451 ; 68 J. P. 409 ; 
 
 20 T. L. R. 429 ; 6. W. C. C. 11 379 
 
 Andrews v. Andrews & Hears, [1908] 2 K. B. 567 ; 24 T.' L. R. 709 .. . 508 
 
 Andrews v. Barnes, (1888), 39 Ch. D. 133 ; 57 L. J. Ch. 694 ; 58iL. T. 
 
 748; 36W.R. 705; 53 J. P. 4; 4T.L.R. 609 247 
 
 Anglo-American OU Co. v. Manning, [1908] 1 K. B. 536 ; 77. L. J. 
 
 K.B.205; 98L.T.570; 72 J.P. 35; 24T. L. B.215; 6L. G. R. 
 
 299 150,155 
 
 Anglo -Argentine Live Stock & Produce Agency v. Temperley Ship- 
 ping Co., [1899] 2 Q. B. 403 ; 68 L. J. Q. B. 900 ; 81 L. T. 296 ; 
 
 48W.R.64; 15T.L. R. 472 451 
 
 Angus V. Findlay, (1887), 24 So. L. R. 287, see Pindlay v. Angus. 
 Angus V. London, Tilbury and Southend Ry. Co., (1906), 22 T. L. R. 
 
 222 .... 72,81 
 
 Anon., (1899), Times newspaper, 31st January 634 
 
 Anon., (1536), 1 Dyer 33 a ; 73 Eng. Bep. 72 (10) 51 
 
 Anon., (1431), Y. B. 9 H. VI. 53 b 145 
 
 Appleby v. Franklin, (1885), 17 Q. B. D. 93 ; 55 L. J. Q. B. 129 ; 54 
 
 L. T. 135 ; 84 W. R. 231 ; 50 J. P. 359 ; 2 T. L. R. 170 104 
 
 Appleby v. Horseley Co., [1899] 2 Q. B. 521 ; 68 L. J. Q. B. 892 ; 
 
 80 L. T. 858 ; 47 W. R. 614 ; 15 T. L. R. 410 ; 1 W. C. C.103 . . . 514, 
 
 624, 530 
 Archer v. James, (1862), 2 B. & S. 61, 67 ; 31 L. J. Q. B. 153 ; 8 Jur. 
 
 (N. S.) 166 ; 6 L. T. 167 ; 10 W. R. 489 294 
 
 Archibald Finnic & Son v. Duncan, see Pinnie v. Duncan. 
 Armitage v. Lancashire & Yorkshire Ry. Co., [1902] 2 K. B. 178- 
 
 71 L. J. K. B. 778 ; 86 L. T. 888 ; 66 J. P. 613 ; 18 T. L. li. 648 ; 
 
 4W.C.C.5 869,378,391 
 
 Armory v. Delamirie, (1722), 1 Strange 504 ; 1 Sm. L. C. (11th ed.) 
 
 356 : 81 
 
 Armour u. Hahn, (1884), 111 U. S. 313 34 
 
 Armsworth u. S.-E. Ry. Co., (1847), 11 Jur. 758 109 
 
 Ashworth v. Stanwix, (1861), 3 E. & E. 701 ; 80 L. J. Q. B. 183 ; 4 
 
 L. T. 85; 7 Jur. N. S. 467 25 
 
 Assheton Smith v. Owen, [1906] 1 Ch. 179 ; 75 L. J. Ch. 181 ; 94 L T 
 
 42; 22T.L.R. 182; 10 Asp. M. C. 164 ■.." 452 
 
 Assop or Alsop v. Yates, (1857), 2 H. & N. 768 ; 27 L. J. Ex. 156 ... 27, 70 
 Atkinson v. Lumb, [1908] 1 K. B. 861 ; 72 L. J. K. B. 460 • 88 L T 
 
 789; 51 W. R. 616; 67 J. P. 414; 19 T. L. R. 412; 5 W. c! o'. 
 
 106 499 
 
 Atkinson 1;. Newcastle and Gateshead Waterworks Co., (1877) 2 Ex 
 
 D. 441 ; 46 L. J. Ex. 775 ; 36 L. T. 761 ; 25 W. B. 794 ..'. 251 
 
 'A.-G. V. Brunning, (1660), 8 H. L. C. 243 ; 30 L. J. Ex. 379 ; 6 Jur. 
 
 (N. S.) 1083; 3L.T. 36; 8 W.R.362 IO3 
 
 A.-G. V. Da-vison, (1825), M'Clel. & You. 160 ; 29 R. R. 774 ... 629 
 
TMe of Gases xxiii 
 
 . ^ „ PAGE 
 
 A.-G. V. Horner, (1885), 11 App. Cas. 66; 55 L. J. Q. B. 198; 54, 
 
 L. T. 281 ; 34 W. E. 641 ; 50 J. P. 564 ; 2 T. L. B. 202 ... 500 
 
 A.-G. V. Margate Pifer and Harbour Co., [1900] 1 Oh. 749 ; 69 L. J. Ch. 
 
 331; 82 L.T. 448; 48 W.E. 518; 64 J. P. 405 246 
 
 A.-G. V. Siddou, (1830), 1 TJr. 41 ; 1 C. & J. 220 ; 9 L. J. (0. S.) Ex. 7 155 
 
 A.-G. 1). Weymouth (Lord), (1743), Ambler 20 123 
 
 Attwood«. SmaU, (1838), 6 CI. & F. 232 ; sub nom. Small v. Attwood, 
 
 2 Jur. 200, 226, 246 81 
 
 Avery v. Wood, [1891] 3 Ch. 115 ; 65 L. T. 122 ; 39 W. E. 577 ; 7 
 T. L. E.612 
 
 Ayres v. Buckerldge, [1902] 1 K. B. 57 ; 71 L. J. K. B. 28 ; 85 L. T, 
 472 ; 50 W. E. 115 ; 65 J. P. 804 ; 18 T. L. E. 20 ; 4 W. C. 0. 120 
 Ayres i;. Bull, (1889), 5 T. L. E. 202 165,185,192 
 
 247 
 
 Back V. Diok, Kerr & Co., [1906] A. C. 325 ; 75 L. J. K. B. 569 ; 94 
 
 L.T.802; 22T.L. E.548; 8 W. C. C. 40 504 
 
 Backhouse v. Armstrong, Whit worth & Co., (1899), 106 Law Times 
 
 newspaper, 264 53i 
 
 Baokwell's case, (1683), 1 Vern. 152 ; 1 Ec[. Cas. Ab. 52, pi. 1, 2 ; 2 
 
 Cas. inCh.190; 23 Eng.Eep.381 ... 589 
 
 Bacon v. Dawes & Co., (1887), 3 T. L. E. 557 159, 175, 186 
 
 Baddeley v. Granville (Earl), (1887), 19 Q. B. D. 423 ; 56 L. J. Q. B. 
 
 501 ; 57 L. T. 268 ; 36 W. E. 63 ; 51 J. P. 822 ; 3 T. L. E. 759 ,. . 20, 24, 
 
 202 
 Badische Anilin und Soda Fabrik v. Basle Chemical Works, Bind- 
 
 sohedler, [1898] A. C. 200 ; 67 L. J. Ch. 141 ; 77 L. T. 573 ; 46 
 
 W. E.255; 14T.L.E.82 53 
 
 Bagnall v. Levinstein, [1907] 1 K. B. 531 ; 76 L. J. K. B. 234 ; 96 
 
 L.T.184; 23T.L.E.165; 9 W. C.C. 100 266,443,444 
 
 Bagot V. Easton, (1877), 7 Ch. D. 1 ; 47 L. J. Ch. 225 ; 37 L. T. 369 ; 
 
 26W. E. 66 255 
 
 Bailey v. G. H. Kenworthy, Ltd., [1908] 1 K. B. 447 ; 77 L. 3. K. B. 
 
 236 ; 98 L. T. 327 ; 24 T. L. E. 184 523,541 
 
 Bailey «. Neal, (1888), 5 T. L. E. 20 41,95 
 
 Bailey v. Plant, [1901] 1 K. B. 31 ; 70 L. 3. K. B. 63 ; 83 L. T. 459 ; 
 
 49 W. E. 103 ; 65 J. P. 52 ; 17 T. L. E. 48 ; 3 W. C. C. 209 ... 846, 
 
 639, 669 
 
 Bailey v. Plant, (1901), 17 T. L. E. 449 ; 3 W. G. C. 207 661 
 
 Bailiffs of Eomney Marsh v. Trinity House, (1870), L. E. 5 Ex. 204 ; 
 
 (1872), L. E. 7 Ex. 247 ; 41 L. J. Ex. 106; 22 L. T. 446; 18 
 
 W. E. 869 ; 20 W, E. 952 69 
 
 Baird v. Higginbotham, (1901), 3 F. 673; 88 So. L. E. 479; 8 Sc. 
 
 L.T.'497 418 
 
 Baird (Wm.) & Co. ■K.Burley, (1908), 45 Sc.L.E. 416 378 
 
 Baird (Wm.) & Co. v. Kane, (1905), 7 P. 461 ; 42 Sc. L. E. 347 ; 12 
 
 Sc. L. T. 625, 697 680 
 
 Baird (Wm.) & Go. v. MoWhinnie, [1908] S. 0. 440 ; 45 Sc. L. E. 338 615 
 
 Baird(Wm.)&Co. ■«. Savage, (1906), 8P. 438;.43So.L.E.300 ... 476 
 
 Baird (Wm.) & Co. v. Stevenson, [1907] S. G. 1259 ; 44 So. L. E. 864 667 
 
 Baker v. Bolton, (1808), 1 Camp. 493 ; 10 E. E. 734 102 
 
Xxiv table of Cases 
 
 PAGE 
 
 Baker i). Snell, [1908] 2 K. B. 825 ; 24 T. L. B. 811 50 
 
 Bank o£ New South Wales ii. Owston, (1879), i App. Cas. 270 ; 48 
 
 L.J.P. C.25; 40L.T.500 151 
 
 Barber v. Burt, (1894), 10 T. L. B. 383 ^ 209, 218 
 
 Barclay, Curie & Co. v. Osborn or M'Kinnon, (1901), 3 P. 436 ; 38 
 
 So.L.E.321 498 
 
 Barnard Castle Urban CounoU v. Wason, [1902] 2 Ob. 746 ; 71 L. J. 
 
 Ch.825; 87L. T.279; 51 W.B.102; 18T.L.E.748 460 
 
 Barnes a. Ward, (1850), 9 C. B. 392 ; 2 C. & K. 661 ; 19 L. J. 0. P. 
 
 195 ; 14 Jur. 334 104 
 
 Barnett v. Lucas, (1870), Ir. B. 5 0. L. 140; (1872), Ir. E. 6 C. L. 
 
 247 115 
 
 Barrett «. Midland By. Co., (1858), 1 F. & P. 861 57 
 
 Barrow v. Arnauld, (1846), 8 Q. B. 595 ; 10 Jur. 319 15 
 
 Barry u. Midland By. Co., (1867), Ir. B. 1 G. L. ISO 143 
 
 Barry By. Co. «. White, (1901), 17 T. L. E. 644 71 
 
 Bartell v. Gray, [1902] 1 K. B. 225 ; 71 L. J. K. B. 115 ; 85 L. T. 
 
 658; 50 W. E. 310; 66 J. P. 808; 18 T. L. E. 70; 4 W. G. C. 
 
 95 493 
 
 Bartonshill Coal Co. v. M'Guire, (1858), 3 Macq. (H. L, Sc.) 300; 1 
 
 Paterson 789 ; 4 Jur. (N. S.") 772 14,40 
 
 Bartonshill Coal Co. v. Beid, (1858), 3 Maoct. (H. L. So.) 266; 
 
 lPatersou785; 4 Jur. (N. S.)767 14,21,23,34,47,227 
 
 Barwiok u. English Joint Stock Bank, (1867), L. B. 2 Ex. 259 ; 36 
 
 L. J. Ex. 147 ; 16 L. T. 461 ; 15 W. B. 877 12, 142, 143 
 
 Baster v. London and County Printing Works, [1899] 1 Q. B. 901 ; 
 
 68 L. J. Q. B. 622 ; 80 L. T. 757 ; 47 W. E. 639 ; 63 J. P. 439 ; 
 
 15T. L. E. 381 24 
 
 Batohelor v. Portescue, (1883), 11 Q. B. D. 474 ; 49 L. T. 644 ... 30 57 
 
 Bates «. Warner, (1889), 5 T. L. E. 582 253 
 
 Bathgate v. Caledonian By. Co., (1901), 4 P. 813; 89 So. L. B. 246; 
 
 9So. L. T. 884 ... ... [ 504 
 
 Bauleo v. New York & Harlem Eailroad Go., (1874), 59 N. Y. 356 24 
 
 BaumwoU Manufaotur von Scheibler v. Purness, [18931 A C 8 ■ 
 
 63 L. J. Q. B. 201; 68 L. T. 1; 9 T. L. B. 71; 7 Asp. M. c! 
 
 ^^^ 143,185 
 
 Baxter D.Wyman, (1888), 4 T. L.B. 255 175,185 
 
 Bayley i>. Manchester, Sheffield & Lincolnshire By. Co a878^ 
 
 L. E. 8 C. P. 148 ; 42 L. J. C. P. 78 ; 28 L. T. 866 ... 142, 147 
 
 Bazalgette v. Low, (1855), 3 Bq. B. 491 ; 24 L. J. Gh. 368 ; 3 W. E. 
 
 356 ... .,, ... ,,, ,^, 
 
 Beadon v. Parrott, (1871), L. E. 6 Q. B. 718; 40 L. J. M. C 200- 
 19 W. E. 1144 ' 
 
 Beard v. London General Omnibus Co., [1900] 2 Q. B 530 ■ 69 
 
 L. J. Q. B. 895 ; 83 L. T. 862 ; 48 W. B. 658 ; 16 T. L. B. 499 50, 148, 
 
 151 
 
 Beath & Keay v. Ness, (1903), 6 P. 168; 41 So. L. B. 113 ... 614, 615 
 
 Beavan v. Grawshay Bros, see Bevan v. Grawshay Bros. 
 
 Beckett i;. Manchester Corporation, (1888), 52 J. P. 346 245 
 
 Beckley v. Scott, [1902] 2 Ir. E. 504; W. N. (1903) 173; 36 Ir. L. T. 
 
 ^^^ 418, 421, 428, 426 
 
 892 
 276 
 
Table of Cases xxv 
 
 „ , PAGH 
 
 BedweU «. Golding, (1902), 18 T. L. B. 436 105 
 
 Bee V. Ovens & Sons, (1900), 5 P. 439 ; 37 So. L. E. 828 ; 7 So. L. T. 
 
 362 487,489 
 
 Beever v. Hanson Dale & Co., (1890), 25 L. J. Notes of Oases 182 ... 19 
 
 Bell u. G. N. By. Co. of Ireland, (1890), 26 L. B. Ir. 428 84 
 
 BeU V. Wilson, (1866), L. B. 1 Ch. 803 ; 35 L. J. Oh. 337 ; 14 L. T. 
 
 115 ; 14 W. B. 493 ; 12 Jur. (N. S.) 263 277 
 
 Bennett v. Aird, (1899), 107 L. T. newspaper, 550 ; 1 W. 0. C. 188 511 
 Bennett v. Stone, [1902] 1 Oh. 226; 71 L. J. Ch. 60; 85 L. T. 753; 
 
 50W. B. 118 395 
 
 Bennett v. Wordie & Co., (1899), 1 F. 855 ; 36 So. L. B. 643 ; 7 So. 
 
 L. T. 10 610,612 
 
 Benson v. Lancashire & Yorkshire By. Co., [1904] 1 K. B. 242 ; 73 
 
 L. J. K. B. 122 ; 89 L. T. 715 ; 52 W. B. 243 ; 68 J. P. 149 ; 20 
 
 T. L. E. 189; 6W. C. C. 20 383 
 
 " Bemina," The, see MiUs v. Armstrong. 
 
 Berry v. Perry, (1616), 3 Bulst. 62 ; 1 BoUe Eep. 375 ; 81 Eng. Eep. 
 
 64 ; sub nom. Berry v. Penring, Cro. Jao. 399 ; Moor. 849 ... 629 
 Bett V. Dahneney Oil Co., (1905), 7 P. 787; 42 So. L. E. 638; 18 
 
 So. L. T. 165 ' 25,251,254 
 
 Bevan or Beavan v. Crawshay Bros., [1902] 1 K. B. 25; 71 L. J. 
 
 K. B. 49 ; 85 L. T. 496; 50 W. B. 98 ; 18 T. L. B. 17 ; 4 W. 0. 
 
 0. 110 106, 550, 620 
 
 Biddle v. Hart, [1907] 1 K. B. 649 ; 76 L. J. K. B. 418 ; 97 L. T. 
 
 66; 23T. L. E. 262 169,188 
 
 Binning v. Easton & Sons, (1906), 8 F. 407 ; 43 So. L. E. 312 ... 667 
 Bird V. Holbrook, (1828), 4Bing. 628 ; 1 M. &:P. 607 ; 6 L. J. (0. S.) 
 
 C. P. 146 ; 29 E. E. 657 87 
 
 Bishop «. Letts, (1858), 1 P. & P. 401 275 
 
 Birtwistle v. Hiudle, see Hindle v. Birtwistle. 
 
 Bist V. L. & S. W. By. Co., [1907] A. C. 209 ; 76 L. J. K. B. 703 ; 96 
 
 L. T. 750; 23T. L. E. 471; 9 W. C. 0. 19 410 
 
 Black V. Christchuroh Finance Co., [1894] A. 0. 48; 63 L. J. P. 0. 
 
 32 ; 70 L. T. 77 ; 58 J. P. 332 ; 6 E. 894 77 
 
 Black V. North British By. Co., [1908] S. C. 444 ; 45 So. L. B. 340 107 
 
 Blacks. Ontario Wheel -Co., (1890), 19 Ont.E. 578 26,179 
 
 Blackburn Corporation v. Sanderson, [1902] 1 K. B. 794 ; 71 L. J. 
 
 K. B. 590 ; 86 L. T. 304 ; 66 J. P. 452 ; 18 T. L. B. 436 ... 424 
 
 Blaokman v. London Brighton & South Coast By., (1869), 17 W. B. 
 
 769 60 
 
 Blades v. Higgs, (1865), 11 H. L. 0. 621; 20 0. B. N. S. 214; 34 
 
 L. J. 0. p:286 ; 12 L. T. 615 ; 13 W. E. 927 ; 11 Jur. (N. S.) 701 154 
 Blake v. Midland By. Co., (1852), 18 Q. B. 93 ; 21 L. J. Q. B. 233 ; 
 
 16 Jur. 562 109,113 
 
 Blake «. Midland By. Co., [1904] 1 K. B. 503; 78 L. J. K. B. 179; 
 
 90 L. T. 433 ; 68 J. P. 215 ; 20 T. L. B. 191 ; 6 W. 0. C. 163 ... 667 
 Blake «. Shaw, (1860), Johns. 782 ; 8 W. E. 410 182 
 
 Blamires v. Lancashire & Yorkshire By. Co., (1873), L. B. 8 Ex. 
 
 283 ; 42 L. J. Ex. 182 ... 25,62 
 
 Blenkinsop v. Ogden, [1898] 1 Q. B. 788 ; 67 L. J. Q. B. 537 ; 78 
 
 L. T. 554 ; 46 W. E. 542 ; 14 T. L. E. 360 248, 249 
 
xxvi Table of Cases 
 
 PAGE 
 
 Blower v. G. W. By. Co., (1872), L. R. 7 0. P. 655 ; sub nom. G. W. 
 By. Co. V. Blower, 41 L. J. C. P. 268 ; 26 L. T. 883 ; 20 W. B. 
 
 776 75 
 
 Blovelt V. Sawyer, [1904] 1 K. B. 271 ; 73 L. J. K. B. 155 ; 89 L. T. 
 658; 52 W. B. 503; 68 J. P. 110; 20 T. L. R. 105; 6 W. C. C. 
 
 16 387 
 
 Blyth V. Birmingham Waterworks Co., (1856), 11 Ex. 781; 25 L. J. 
 
 Ex. 212 ; 4 W. B. 294 ; 2 Jur. (N. S.) 333 69 
 
 Boase SpimiiBg Co., Ltd. v. M'Avan, (1901), 38 So. L. B. 772, see 
 
 M'Avan v. Boase. 
 Boloh V. Smith, (1862), 7 H. & N. 737 ; 81 L. J. Ex. 201 ; 6 L. T. 
 
 158; 8-Jur. (N. S.)197; lOW.B. 387 171 
 
 Bolingbroke (Lord) v. Swindon Local Board, (1874), L. B. 9 C. P. 
 
 575; 43L. J. 0. P. 287; 30L. T. 723; 23W. B. 47 152 
 
 Bonaker v. Evans, (1850), 16 Q. B. 162 ; 20 L. J. Q. B. 137 ; 15 Jur. 
 
 460 627 
 
 Bond V. Toronto By. Co., (1895), 22 Ont. A. R. 78 185 
 
 Bond 1). Wilson, (1908), 24 T. L. B. 238 63 
 
 Booker v. Higgs, (1887), 3 T. L. B. 618 '. ... 28, 33, 174, 205, 223 
 
 ' Bortiok or Borlick v. Head, Wrightson & Co., (1885), 53 L. T. 909 ; 
 
 84 W. B. 102 ; 50 J. P. 327 ; 2 T. L. R. 103 ... 239, 240, 472, 522, 
 
 553, 568 
 Bostook V. Bamsey Urban District Counoil, [1900] 2 Q. B. 616 ; 69 
 
 L. J. Q. B. 945; 83 L. T. 358; 64 J. P. 660; 16 T. L. R. 520... 247 
 
 Boswel's case, (1605), 6 Co. Rep. 48 b ; 77 Eng. Bep. 326 626 
 
 Boimd V. Lawrence, [1892] 1 Q. B. 226 ; 61 L. J. M. 0. 21 ; 65 L. T. 
 
 844; 40W.B.1; 56 J.P.118; 8T.L.B.1 271 
 
 Bourke u. Cork & Maoroom By. Co., (1879), 4 L. B. Ir. 682 ... 110 
 
 Bovill V. Wood, (1813), 2 M. & Sell 23 . . .' 294, 429 
 
 Bowden D. Barron Brothers, (1901), 3 W. 0. 0. 215 684 
 
 Bowen v. Evans, (1848), 3 Ex. Ill ; 6 D. & L. 193 ; 18 L. J. Ex. 38 256 
 Bowers v, Lovekin, (1856), 6 E. & B. 584; 25 L. J. Q. B. 371; 27 
 
 L. T. (0. S.) 168; 4 W. R. 600; 2 Jur. (N. S.) 1187 275 
 
 Bowie D, Robert BanMn & Co., (1886), 13 R. 981 ; 23 So. L. R. 706 169 
 Bowker v. Evans, (1885), 15 Q. B. D. 565; 54 L. J. Q. B. 421; 53 
 
 L. T. 801; 33 W. R. 695; IT. L. R. 371 101 
 
 Boyle V. Smith, [1906] 1 K. B. 432; 75 L. J. K. B. 282; 94 L. T. 
 
 30; 54W. R. 519; 70 J. P. 115; 22T. L. B. 200 155 
 
 Brace v. Oalder, [1895] 2 Q. B. 253 ; 64 L. J. Q. B. 582 ; 14 R. 473 • 
 
 72L. T. 829; 59 J. P. 693; IIT. L. R. 450 U 
 
 Bradburn v. G. W. Ry. Co., (1874), L. E. 10 Ex. 1 ; 44 L. J. Ex. 9 ; 
 
 31 L. T. 464 ; 23 W. R. 468 114 
 
 Bradbury «. Bedworth Coal and Iron Co., (1900), 2 W. C. C. 188; 
 
 Times newspaper, 17th March 561,573 
 
 Bradshaw v. Lancashire & Yorkshire Ry. Co., (1875), L. R. 10 
 
 C. P.,189; 44L. J. C. P. 148; 31 L. T. 847; 23 W. R. 310 ... 115 
 
 Bramall ?j. Lees, (1857), 29 L. T. (0. S.) Ill 110 
 
 Brannigan v. Bobinson, [1892] 1 Q. B. 344 ; 61 L. J. Q. B. 202 • 
 
 66 L, T. 647 ; 56 J. P. 328 ; 8 T. L. R. 244 ... 168, 173, 184, 188 
 
 Branwell or BramweU v. Penneck, (1827), 7 B. & C. 536 ; 1 M & Rv 
 
 409; 6L, J, (0. S,)M, 0. 47 ... ,.. 272 
 
Tabic of Gases xxvii 
 
 PAGE 
 
 Brennan v. Dublin United Tramway Co., [1901] 2 I. B. 241 ; 84 
 
 Ir. L. T. 113 486 
 
 Bridget. Grand Junction Ry. Co., (1838), 3 M.&W. 244 86 
 
 Bridges v. North. London By. Co., (1874), L. R. 7 H. L. 213 ; 43 
 
 L. J. Q. B. 151 ; 30 L. T. 844 ; 23 W. B. 62 82 
 
 Briggs v. Oliver, (1866), 4 H. & 0. 403 ; 85 L. J. Ex. 163 ; 14 L. T. 
 
 412 ; 14 W. B. 658 75 
 
 Briggs «. Upton, (1872), L. B. 7 Ch. 376 ; 41 L. J. Ch. 519 ; 26 L. T. 
 
 485;21W.R.30 289 
 
 Brinsmead v. Harrison, (1872), L. R. 7 C. P. 547; 41 L. J. 0. P. 
 
 190; 27L. T. 99; 20W. B. 784 154 
 
 Brintons, Ltd. v. Turvey, [1905] A. C. 230 ; 74 L. J. K. B. 474 ; 92 
 
 L. T. 578 ; 53 W. B. 641 ; 21 T. L. B. 444 ... 55, 348, 352, 365 
 
 British Mutual Banking Co. v. Charnwood Forest By. Co., (1887), 
 
 18 Q. B. D. 714 ; 56 L. J. Q. B. 449 ; 57 L. T. 833 ; 85 W. B. 
 
 590 ; 52 J. P. 150 12,143 
 
 Britton v. Great Western Cotton Co., (1872), L. B. 7 Ex. 130 ; 41 
 
 L. J. Ex. 99 ; 27 L. T. 125; 20 W. E. 525 24, 39, 191 
 
 Brooklebank, Ex parte, In re, (1877), 6 Ch. Div. 858 ; 46 L. J. Bk. 
 
 118; 37L. T. 282; 25 W. E. 859 592 
 
 Brodie v. North British By. Co., (1900), 8 E. 75 ; 38 Sc. L. B. 38 498, 502 
 
 Broderick «. London County Council, [1908] 2 K. B. 807 352 
 
 Bromley v. Cavendish Spinning Co., Limited, (1887), 2 T. L. E. 881 169 
 Bromley, Executrix of, v. Oldham Corporation (not reported), cited 
 
 Buegg, Employers' Liability, (7th Ed.) 74 245 
 
 Brooker v. Warden, (1906), 23 T. L. E. 201 ; 9 W. C. C. 26 410 
 
 Brown v. Butterley Coal Co., (1885), 58 L. T. 964 ; 50 J. P. 230 ; 
 
 2T. L. E. 159 217,276,288 
 
 Brown v. Eastern & Midlands By. Co., (1889), 22 Q. B. D. 391 ; 
 
 58 L. J. Q. B. 212 ; 5 T. L. E. 284 60 
 
 Brown v. Foot, (1892), 61 L. J. M, C. 110 ; 66 L. T. 649 ; 56 J. P. 
 
 581 ; 17 Cox C. 0. 509 156 
 
 Brovm «. KendaU, (1850), 60 Mass. 292 16 
 
 Brown v. Loohgelly Iron Co., [1907] S. C. 198; 44 So. L. T. 180 ... 606 
 Brown v. Scott, (1899) ; 1 W. C. C. 11 ; Times newspaper, 12th June 389 
 
 Bruce 1J. Barclay, (1890), 17 B. 811 ; 27 Sc. L. B. 670 133 
 
 Bruner v. Moore, [1904] 1 Ch. 305 ; 73 L. J. Ch. 877 ; 89 L. T. 738 ; 
 
 52 W. E. 295 ; 20 T. L. E. 125 243,368 
 
 Brunsden v. Humphrey, (1884), 14 Q. B. D. 141 ; 53 L. J. Q. B. 476 ; 
 
 51 L. T. 529 ; 32 W. B. 944 ; 49 J. P. 4 115,255 
 
 Brydon v. Stewart, (1855), 2 Maoq. (H. L. Sc.) 30 ; 1 Paterson, 
 
 447 11,22,133,372 
 
 Bull V. Shoreditch Borough, (1902), 67 J. P. 37 ; 1 L. G. B. 81 ; 19 
 
 T. L. E. 64 72 
 
 Buhnan r. Bobertson, (1887), 4 W. N. (N.S.W.) 131 245 
 
 Bulmer v. Buhner, (1883), 25 Ch. D. 409 ; 53 L. J. Ch. 402 ; 32 W. 
 
 B. 380 242 
 
 Bunker v. Midland By. Co., (1883), 47 L. T. 476 ; 31 W. E. 281 40, 208, 209 
 BurcheU i;. Hiokisson, (1880), 50 L. J. Q. B. 101 97 
 
 Burgh V. Legge, (1839), 5 M. & W. 418 ; 8 L. J. Ex. 258 ; 7 Dowl. 
 
 814 195 
 
xxviii Table of Cases 
 
 PAGE 
 
 Burke v. Manchester, Sheffield & Lincolnshire By. Co., (1870), 22 
 
 L. T. 442 ; 18 W. E. 694 76 
 
 Burmester v. Barron, (1852), 17 Q. B. 828 ; 21 L. J. Q. E. 135 ; 16 
 
 Jur. 314 , 265 
 
 Burnard v. Haggis, (1863), 14 C. B. N. S. 45 ; 82 L. J. C. P. 189 ; 
 
 8 L. T. 320 ; 11 W. E. 644 ; 9 Jur. (N. S.).325 281 
 
 " Burns," The, [1907] P. 137 ; 76 L. J. P. 41 ; 96 L. T. 684 ; 5 
 
 L. G. E. 676; 71 J. P. 193; 23T. L. R. 323 246 
 
 Burns v. North British Ey. Co., (1900), 2 P. 629 ; 37 Sc. L. B. 448 487 
 
 Buron «. Denman, (1848), 2 Ex. 167 282 
 
 Burr V. Theatre Eoyal, Drury Lane, [1907] 1 K. B. 544 ; 76 L. J. K. 
 
 B. 459 ; 96 L. T. 447 ; 23 T. L. E. 299 35,42 
 
 Burr «. William Whiteley, Ltd., (1902), 19 T. L. E. 117 501 
 
 Burrell & Burrell and Avis, In re, (1898), 106 L. T. newspaper, 61 407 
 
 Burrows v. March Gas and Coke Co., (1870), L. R. 5 Ex. 67 ; (1872), 
 
 L. E. 7 Ex. 96 ; 41 L. J. Ex. 46 ; 26 L. T. 318 ; 20 W. E. 493 55, 64 
 Burt-Boulton & Hayward v. Bull, [1895] 1 Q. B. 276 ; 64 L. J. 
 
 Q. B. 232 ; 71 L. T. 810 ; 43 W. E. 180 ; 11 T. L. E. 90 ; 2 Mans. 
 
 94; 14E. 65 584 
 
 Bush i>. Hawes, [1902] 1 ^K. B. 216 ; 71 L. J. K. B. 68 ; 85 L. T. 
 
 507 ; 50 W. E. 311 ; 66 J. P. 260 ; 4 W. C. 0. 33 491 
 
 Butlerr. Birnbaum, (1891), 7T. L..E. 287 178 
 
 Butterfield 1). Forester, (1809), 11 East 60 ; 10 B. E. 433 85 
 
 Butterly v. Drogheda Corporation, [1907] 2 I. E. 134 98 
 
 Butts n. Goddard, (1887), 4 T. L. E. 193 292 
 
 Byrne v. Boadle, (1863), 2 H. & C. 722 ; 33 L. J. Ex. 13 ; 9 L. T. 450 ; 
 
 12 W. E. 279 75 
 
 Cadzow Coal Co. v. GafEney, (1900), 3 F. 72 ; 38 Sc. L. E. 40 ; 8 So, 
 
 L. T. 224 240 
 
 Cahalane v. North Metropolitan Ey. and Canal Co., (1896), 12 
 
 T. L. E. 611 141 
 
 Cain V. Frederick Leyland & Co., [1908] 1 K. B. 444 ; 77 L. J. K. B. 
 
 236 ; 98 L. T. 327 ; 24 T. L. E. 186 540 
 
 Cairns v. Clyde Navigation Trustees, (1898), 25 B. 1021 ; 35 Sc. 
 
 L. B. 808 ; 6 So. L. T. 58 44,140 
 
 Caldwell «. Mills, (1893), 24 Ont. E. 462 ' 171,172 
 
 Caledon Shipbuilding, etc., Co. v. Kennedy, (1906) 8 F. 960 ; 43 Sc. 
 
 L. B. 430, 687 ; 13 Sc. L. T. 901 663 
 
 Caledonian Ey. Co. v. Breslin, (1900), 2 P. 1158 ; 37 Sc. L. E. 873 495, 503 
 Caledonian Ey. v. Mulholland, [1898] A. C. 216 ; 67 L. J. P. C. 1 ; 
 
 77L. T. 570; 46W. E. 236; 14T. L. E. 41 53 
 
 CaUaghan v. Maxwell, (1900), 2 F. 420 ; 37 Sc. L. B. 313 ; 7 So. 
 
 L. T. 339 373,407 
 
 Callender v. Carlton Iron Co., (1893), 9 T. L. E. 646, (C.A.) ; (1899), 
 
 10 T. L. B. 366 (H.L.) ... ... ... ... 133 
 
 Cameron v. Nystrom, [1893] A. C. 808 ; 62 L. J. P. C. 85 ; 68 L. T. 
 
 772 ; 57 J. P. 550; 7 Asp. M. C. 320; 1 B. 362 13, 42 
 
 Cameron v. Walker, (1898), 25 E. 449 ; 35 So. L. E. 347 53, 178 
 
Table of Cases. 
 
 XXIX 
 
 Cammiok v. Glasgow Iron and Steel Co., Ltd., (1901) ; 4 F. 198; 
 
 39 So. L. B. 138 ; 9 So. L. T. 218 ... 666 
 
 Campbell «. Dearborn, (1900), 175 Mass. 183 171 
 
 OampbeU u. Ord, (1873), 1 R. U9 ; 11 So. L. R. 54 94 
 
 Canavan «. John Green & Co., (1905), 8 F. 275 ; 43 So. L. R. 200 ... 209 
 Capel V. Child, (1832), 2 C. & J. 558 ; 1 L. J. Ex. 205 ; 2 Tyr. 689 ... 627 
 Capell «. G. W. Ry. Co., (1883), 11 Q. B. D. 345 ; 52 L. J. Q. B. 345 ; 
 
 48 L. T. 505 : 31 W. R. 555 362 
 
 Carey v. Bermondsey Borough Council, (1903), 67 J. P. 447 ; 2 
 
 L. G. R. 219: 20T. L. R. 2 . 247 
 
 Caron «. Boston, etc.. Railroad Co., (1895), 164 Mass. 523 ... 236,238 
 
 Carter v. Clarke, (1898), 78 L. T. 76 ; 14 T. L. R. 172 58, 182, 184, 187 
 
 Carter v. Drysdale, (1883), 12 Q. B. D. 91 ; 53 L. J. Q. B. 557 ; 32 
 
 W. R. 171 260 
 
 Castle Spinning Co., Ltd. v. Atkinson, [1905] 1 K. B. 336; 74 
 
 L. J. K. B. 265 ; 92 L. T. 147 ; 53 W. R. 360 ; 21 T. L. R. 192 ; 
 
 7W. C. C. 124 • 556,557 
 
 Caton V. Caton, (1867), L. R. 2 H. L. 127 ; 36 L. J. Oh. 886 ; 16 
 
 W. R. 1 432 
 
 Caton V. Summerlee and Mossend Iron and Steel Co., Ltd., (1902), 4 
 
 F. 989 ; 39 So. L. R. 762 ; 10 So. L. T. 204 381 
 
 Cattermole v. Atlantic Transport Co., Ltd., [1902] 1 K. B. 204 ; 71 
 
 L. J. K. B. 178 ; 85 L. T. 513 ; 50 W. R. 129 ; 66 J. P. 4 ; 18 
 
 T. L. R. 102; 4 W. 0. C. 28 653,655,658,659 
 
 Cavagnaro ■«. Clark, (1898), 171 Mass. 359 207 
 
 Cavenagh «. Park, (1896), 23 Ont. A. R. 715 260 
 
 Cayzer v. Carron Co., (1884), 9 App. Cas. 873 ; 54 L. J. Adm. 18 ; 
 
 52L. T. 861; 33W. R. 281; 5Asp. M. C. 371 90 
 
 Central Vermont Ry. Co. v. Franohfere, (1904), 35 Can, S. C. R. 68 ... 114 
 
 Challis 0. L. & S.-W. Ry. Co., [1905] 2 K. B. 154 ; 74 L. J. K. B. 
 569 ; 93 L. T. 380 ; 53 W. R. 613 ; 21 T. L. R. 486 ; 7 W. 0. C. 
 23 378 
 
 Chambers v. Whitehaven Harbour Commissioners, [1899] 2 Q. B. 
 132; 68 L. J. Q. B. 740; 80 L. T. 586; 47 W. R. 533; 15 
 T. L. R. 341 ; 1 W. C. C. 47 : 496 
 
 Chandler v. Smith, [1899] 2 Q. B. 506 ; 68 L. J. Q. B. 909 ; 81 L. T. 
 
 317 ; 47 W. B. 677 ; 15 T. L. R. 480 ; 1 W. C. C. 19 ... 346, 563, 573 
 Chapman v. Rothwell, (1858), E. B. & E. 168 ; 27 L. J. Q. B. 315 ; 
 
 4 Jur. (N. S.) 1180 v 293 
 
 Chapman, Morsons & Co. v. Auckland Union, (1889), 23 Q. B. D. 
 
 ,294; 58 L.J. Q.B. 504; 61 L.T. 446; 53 J. P. 820 246 
 
 Chaproniere u. Mason, (1905), 21 T. L. R. 633 74 
 
 Charles v. Taylor, (1878), 3 C. P. D. 492 ; 38 L. T. 773 ; 27 W. R. 32 13, 139 
 Charleston v. London Tramways Co., (1888), 4 T. L. R. 157, 629 ; 36 
 
 W. R. 367 ; 32 Sol. J. 557 152 
 
 Chartered Mercantile Bank of India v. Netherlands Steam Naviga- 
 tion Co., (1883), 10 Q. B. D. 521; 52 L. J. Q. B. 220; 48 L. T. 
 546 ! 31 W. R. 445 ; 47 J. P. 260 16 
 
 Chawner v. Cummings, (1846), 8 Q. B. 311 ; 15 L. J. Q. B. 161 ; 10 
 
 Jur. 454 294 
 
XXX Table of Cases 
 
 PAGE 
 
 Cheshire v. Bailey, [1905] 1 K. B. 237 ; 74 L. J. K. B. 176 ; 92 L. T. 
 
 142; 53 W. E. 322; 21T. L. B. 130 140 
 
 CheBsum & Sons v. Gordon, [1901] 1 K. B. 694 ; 70 L. J. Q. B. 894 ; 
 
 84 L. T. 187 ; 49 W. B. 309 638 
 
 Child V. Hearn, (1874), L. E. 9 Ex. 176 ; 43 L. J. Ex. 100 ; 22 
 
 W. B. 864 65 
 
 Childrens v. Saxby, (1683), 1 Vern. 207 ; 1 Eq. Cas. Ab. 15, PI. 2; 
 
 229, PI. 11 ; 23 Eng. Bep. 417 81 
 
 "Circe," The, [1906] 1 P. 1 ; 74 L. J. P. 106; 93 L. T. 640; 21 
 
 T. L. B. 525; lOAsp. M. C. 149 103 
 
 " City of Lincoln," The, (1889), 15 P. D. 15 ; 59 L. J. P. 1 ; 62 L. 
 
 T. 49 ; 38 W. B. 845 ; 6 Asp. M. 0. 475 52 
 
 " City of London," The, see Morgan v. Sim. 
 
 Clark, In re, Schulze, Ex parte, [1898] 2 Q. B. 880; 67 L. J. Q. B. 
 
 759 ; 78 L. T. 735 ; 46 W. B. 678 ; 14 T. L. B, 462 ; 5 Manson, 201 277 
 
 Clark V. Adams, (1885), 12 B. 1092 ; 22 So. L. B. 740 243 
 
 Clark V. Chambers, (1878), 3 Q. B. D. 327 ; 47 L. J. Q. B. 427 ; 38 
 
 L. T. 454 ; 26 W. E. 613 71,93,94- 
 
 Clark V. Gas Light and Coke Co., (1905), 21 T. L. B. 184 ; 7 W. C. C. 
 
 119 575,576 
 
 Clark V. London General Omnibus Co., [1906] 2 K. B. 648 ; 75 L. J. 
 
 K. B. 907 ; 95 L. T. 435 ; 22 T. L. B. 691 102, 105, 106 
 
 Clarke v. Carfin Coal Co., [1891] A. C. 412; 7 T. L. B. 714 107 
 
 Clarke v. Holmes, (1862), 7 H. & N. 937 ; 81 L. 3. Ex. 356 ; 8 Jur. 
 
 (N. S.) 992 ; 10 W. E. 405 28, 30, 34, 38, 227, 229 
 
 Clarke v. Lewisham Borough Council, (1902), 67 J. P. 195; 1 
 
 L. G. E. 68 ; 19 T. L. E. 62 246 
 
 Clarke u. M'Naught, (1846), Arkley 33 (So.) 274 
 
 Clarkson v. Musgrave, (1882), 9 Q. B. D. 886 ; 51 L. J. Q. B. 525 ; 
 
 31W. E. 47 244,262 
 
 Clatworthy v. B. & H. Green, Ltd., (1902), 86 L. T. 702 ; 50 W. E. 
 
 610; 66 J. P. 596 ; 18 T. L. E. 641 ; 4 W. C. C. 152 ... 469, 644, 663 
 
 Claxton i;. Mowlem, (1888), 4 T. L. B. 756^ 175,233 
 
 Clayards «. Dethick, (1848), 12 Q. B. 489 85,87 
 
 Olaydon v. Green, (1868), L. E. 3 C. P. 511 ; 37 L. J. C. P. 226 ; 18 
 
 L. T. 607 ; 16 W. E. 1126 ... 123 
 
 Clegg, Parkinson & Co. v. Earby Gas Co., [1896] 1 Q. B. 592 ; 65 
 
 L. J. Q. B. 339 ; 44 W. E. 606 ; 12 T. L. E. 241 25 
 
 Clement v. Bell, (1899), 1 P. 924 ; 36 So. L. B. 725 107 
 
 Clements v. L. & N.-W. By. Co., [1894] 2 Q. B. 482 ; 63 L. J. Q. B. 
 
 837 ; 70 L. T. 896 ; 42 W. E. 663 ; 70 L. T. 896 ; 58 J. P. 818 ; 
 
 10 T. L. E. 539 ; 9 E. 641 36,280 
 
 Cleveland u. Spier, (1864), 16 C. B. N. S. 399 46 
 
 Cleverley v. Gas Light and Coke Co., (1907), 24 T. L. B. 93 ... .351 
 
 Clothier v. "Webster, (1862), 12 C. B. N. S. 790; 81 L. J. 0. P. 316; 
 
 9 Jur. (N. S.) 231 ; 6 L. T. 461 ; 10 W. B. 624 246 
 
 Coates V. Parkgate Iron Co., see Parkgate Iron Co. v. Coates. 
 
 Cobbett V. Grey, (1850), 4 Ex. 729; 19 L. J. Ex. 13T 5 
 
 Cochrane v. Traill, (No. 1), (1900), 2 P. 794 ; 37 So. L. R. 662 ... 668 
 Cochrane v. Traill, (No. 2), (1900), 3 P. 27 ; 38 So. L. E. 18 ; 8 So. 
 
 L-T. 188 622,666 
 
Table of Cases 
 
 XXXI 
 
 _ , PAGE 
 
 Cochrane v. TraiU, (No. 3); (1901), 3 F. 1901 ; 38 So. L. R. 848 662, 666 
 Coe V. Piatt, (1851), 6 Ex. 752 ; 1852), 7 Ex. 460, 923 ; 21 L. J. Ex. 
 
 146; 16Jur. 174 ... ... 24,25 
 
 Coggs V. Bernard, (1704), 1 Sra. L. C. (11th ed.) 173 ; 2 Ld. Raym. 
 
 909 81 
 
 Colchester (Mayor of) v. Brooke, (1845), 7 Q. B. 389 ; 15 L. J. Q. B. 
 
 173 ; 10 Jur. 610 ... ... ... 89 
 
 Coldriob v. Partridge, Jones & Co., Ltd., (1908), 98 L. T. 644 ; 24 
 
 T.L.R.646 ..." ...35,372 
 
 Coleman v. S.-E. Ry. Co., (1899), 1 W. C. C. 151 ; Times, 28th Feb. 643 
 
 Coleman's Depositories and Life and Health Assurance Corporation, 
 
 In re, [1907] 2 K. B. 798 ; 76 L. J. K. B. 865 ; 97 L. T. 420; 23 
 
 T.L. R. 638 588 
 
 CoUen V. Wright, (1857), 8 E. & B. 647; 27 L. J. Q. B. 215 ; 4 Jur. 
 
 (N. S.) 357 ; 6 W. R. 123 12 
 
 Collins V. Middle Level Commissioners, (1869), L. R. 4 C. P. 279 ; 
 
 38 L. J. C. P. 236 ; 20 L. T. 442 ; 17 W. R. 929. , ... 69 
 
 ColUs V. Selden, (1868), L. R. 3 C. P. 495 ; 37 L. J. C. P. 233 ; 16 
 
 W. R. 1170 293 
 
 CoUman v. Mills, [1897] 1 Q. B. 396 ; 66 L. J. Q. B. 170 ; 75 L. T. 
 
 590; 61 J. P. 102; 13 T. L. R. 122; 18 Cox C. C. 481 155 
 
 Colonial Bank v. Whinney, (1886), 11 App. Cas. 426 ; 56 L. J. Ch. 
 
 43 ; 55 L. T. 362 ; 34 W. R. 705 ; 3 Morrell, 207 ; 2 T. L. R. 747 248 
 Colonial Securities Trust Co. v. Massey, [1896] 1 Q. B. 38 ; 65 L. J. 
 
 Q. B. 100 ; 73 L. T. 497 ; 44 W. R. 212 ; 12 T. L. R. 57 ... 402 
 
 Colville & Sons v. Tigue, (1905), 8 P. 179 ; 43 So. L. R. 129 ; 13 So. 
 
 , L. T. 571 664 
 
 Commissioners of Railways v. Leahy, (1904), 2 Commonwealth L. R. 
 
 (Australia) 54 99 
 
 CondUfE «. Condliff, (1874), 29 L. T. 831 ; 22 W. R. 325 108 
 
 Condon v. Great Southern & Western Ry. Co. of Ireland, (1865), 16 
 
 Ir.C.L.415 ... Ill 
 
 Condron v. Gavin Paul & Sons, Ltd., (1903), 6 F. 29; 41 Sc. L. R. 
 
 33 ; 11 So. L. T. 383 411 
 
 Conklin v. Thompson, (1859), 29 Barb. (N.Y.) 218 84 
 
 Connolly v. Young's Paraffin Light and Mineral Oil Co., Ltd., (1894), 
 
 22 R. 80; 32 So. L. R. 61; 2 So. L. T. 306 202, 245 
 
 Conroy v. Peacock, [1897] 2 Q. B. 6 ; 66 L. J. Q. B. 425 ; 76 L. T. 
 
 466 ; 45 W. R. 502 ; 61J. P. 310 244,245 
 
 Conway u. Clemence, (1885), 2 T. L. R. 80 165,168,184 
 
 Cook u. Johnson, (1885), 55 Am. R. 703 92 
 
 Cook V. North Metropolitan Tramways Co., (1887), 18 Q. B. D. 683 ; 
 
 56 L. J. Q. B. 309 ; 56 L. T. 448 ; 57 L. T. 476 ; 35 W. R. 577 ; 
 
 51 J. P. 630 ; 3 T. L. R. 523 268,270 
 
 Cook 1). Stark, (1886), 14 R. 1 ; 24 Sc. L. R. 5 23,205 
 
 Cooke V. Midland Great Western Ry. Co. of Ireland, [1908] 2 I. R. 
 
 242 ; 41 Ir. L. T. 157 59,71,95 
 
 Coomber v. Berks, (Justices of), (1882), 9 Q. B. D. 17 ; 51 L. J. Q. B. 
 
 297 ; 30 W. R. 779 ; 46 J. P. 629 ; affirmed, (1883), 9 App. Cas. 61 123 
 Cooper «. Caledonian Ry. Co., (1902), 4 P. 880; 39 Sc. L. R. 660; 
 
 lOSc. L. T. 104 84 
 
 Cooper 1). Cooper, (1888), 147 Mass. 370 101 
 
xxxii Table of Cases 
 
 PAGE 
 
 Cooper V. Fife Coal Co., [1907] S. C. 564 ; 44 So. L. B. 402 470 
 
 Cooper V. M'Govern, (1901), 39 So. L. E. 102 ; 4 F. 249 ; 9 Sc. L. T. 
 
 270 ; ^89 
 
 Cooper V. Whittingham, (1881), 15 Ch. D. 501 ; 49 L. J. Oh. 752 ; 43 
 
 L. T. 16; 28W. E. 720 654 
 
 Cooper V. WooUey, (1867), L. E. 2 Ex. 88 ; 36 L. J. M. C. 27 ; 15 L. T. 
 
 539 ; 15 W. E. 450 605 
 
 Coppen V. Moore, (No. 2), [1898] 2 Q. B. 306 ; 67 L. J. Q. B. 689 ; 
 
 78 L. T. 520 ; 46 W. E. 620 ; 62 J. P. 453 ; 14 T. L. E. 414 ; 19 
 
 CoxC. C. 45 155 
 
 Corbett v. Pearoe, [1904] 2 K. B. 422 ; 73 L. J. K. B. 885 ; 90 L. T. 
 
 781; 68 J. P. 387; 20 T.L.E. 473 267,451,452 
 
 Corcoran v. East Surrey Ironworks Co., (1889), 58 L. J. Q. B. 145; 
 
 5T. L.E. 103 159,186 
 
 Oordey v. Cardiff Pure Ice and Cold Storage Co., Ltd., (1903), 88 
 
 L. T. 192 ; 19 T. L. R. 256 395 
 
 Cork and Youghal Ry. Co., In re, (1869), L. R. 4 Oh. 748 ; 39 
 
 L. J. Ch. 277 ; 21 L. T. 735 ; 18 W. R. 26 87 
 
 Corn V. Matthews, [1893] 1 Q. B. 310 ; 62 L. J. M. C. 61 ;• 68 L. T. 
 
 480; 41 W. E. 261; 57 J. P. 407; 9 T. L. E. 183; 4 E. 240 ... 280 
 
 Corning «. Burden, (1853), 16 How. (U.S.) 252 175 
 
 Cornish v. Accident Insurance Oo., Ltd., (1889), 23 Q. B. D. 453 ; 58 
 
 L. J. Q. B. 591 ; 38 W. E. 189 ; 54 J. P. 262 ; 5 T. L. E. 783 ... 16 
 Oornmau v. Eastern Counties Ey. Co., (1859), 4 H. & N. 781 ; 29 
 
 L. J. Ex. 94 ; 33 L. T. (0. S.) 302 ; 5 Jur. (N. S.) 657 ... 60, 78, 172 
 
 " Corsair " The, (1891), 145 U. S. (33 Davis) 335 119 
 
 Cosgrave v. Anglo-American Oil Co., Ltd., (1900), 34 Ir. L. T. 56 500, 503 
 
 Cotton V. Wood, (1860), 8 0. B. N. S. 568 ; 29 L. J. 0. P. 333 ; 7 
 
 Jur. (N. S.) 168 76 
 
 Couch V. Steel, (1854), 3 E. & B. 402; 23 L. J. Q. B. 121 ; 18 Jur, 
 
 515 ; 2 W. E. 170 27,251 
 
 Coughlan D. Cambridge City, (1896), 166 Mass. 268 234 
 
 Coughlin V. GiUison, [1899] 1 Q. B. 145 ; 68 L. J. Q. B. 147 ; 79 L. T. 
 
 627 ; 47 W. E. 113 35,184,188 
 
 Ooulthard v. Oonsett Iron Co., [1905] 2 K. B. 869 ; 75 L. J. K. B. 60 ; 
 
 54 W. R. 139 ; 93 L. T. 756 ; 22 T. L. R. 25 ; 8 "W. C. 0. 95 465, 468 
 Cousins V. Lombard Deposit Bank, (1876), 1 Ex. D. 404; 45 
 
 L. J. Ex. 573 ; 85 L. T. 484 ; 25 W. E. 116 656 
 
 Oowler V. Moresby Coal Co., (1885), 1 T. L. E. 575 ; 79 L. T. newsp. 
 
 176 139 
 
 Cowley V. Mayor of Sunderland, (1861), 6 H. & N. 565 ; 30 L. J. Ex. 
 
 127; 4L. T. 720; 9W. E. 668 180 
 
 Cox V. G. W. Ey. Co., (1882), 9 Q. B. D. 106 ; 30 W. E. 816 ; 47 J. P. 
 
 116 235 
 
 Cox D. Hamilton Sewer Pipe Co., (1887), 14 Ont. R. 300 ... 210,260 
 
 Coyle V. Great Northern Ry. Co. o£ Ireland, (1887), 20 L. R. Ir. 409 99 
 
 Coylton Coal Co. v. Davidson, (1905), 7 P. 727 ; 42 So. L. R. 596 ; 
 
 18Sc. L. T.99 506 
 
 Coyne v. Union Pacific Ry. Co., (1890), 133 U. S. (26 Davis) 370 ... 213 
 Grafter v. Metropolitan Ry. Co., (18G6), L. E. 1 0. P. 300; 35 L. J. 
 
 C. P. 132; H. &R. 164; 12 Jur. (N. S.)272; 14W.E. 334 ... 172 
 
Tahle of Cases xxxiii 
 
 PAQB 
 
 Cramb v. Caledonian Ry. Co., (1892), 19 R. 1054 ; 29 So. L. E. 869 53 
 
 Crawford «. Upper, (1889), 16 Ont. App. 440 73 
 
 Cremius v. Guest, Keen & Nettlefolds, Ltd., [1908], IK. B. 469 ; 77 
 
 L. J. K. B. 326 ; 98 L. T. 335 ; 24 T. L. R. 189 382 
 
 Cribb V. Kynooh, [1907] 2 K. B. 548 ; 76 L. J. K. B. 948 ; 97 L. T. 
 
 181 ; 23 T. L. R. 550 41 
 
 Oribb V. Kynoch, (No. 2), [1908] 2 K. B. 551 ; 77 L. J. K. B. 1001 422, 
 
 423, 424 
 
 Crichton I). Keir, (1863), 1 Maoph. 407 ; 35 So. Jur. 247 30 
 
 Cripps V. Judge, (1884), 13 Q. B. D. 583 ; 53 L. J. Q. B. 517 ; 51 
 
 L. T. 182 ; 33 W. R. 35 ; 49 J. P. 100 159,164 
 
 Crisp V. Anderson, (1815), 1 Stark (N. P.) 35 ; 18 R. R. 744 ... 82 
 
 Croaker v. Chicago & N.-W. Ry. Co., (1875), 17 Am. R. 504 ... 146 
 
 Crocker v. Banks, (1888), 4 T. L. R. 324 39, 40, 92 
 
 Croft V. Alison, (1821), 4 B. & Aid. 590 ; 23 R, R. 407 149 
 
 Cross, Tetley & Co. «. Catterall, (unreported), referred to in Sharp v. 
 
 Johnson, [1905] 2 K. B. 139, at p. 145 382 
 
 Crossan v. Caledon Shipbuilding & Engineering Co., (1906) W. N. 
 
 104; 43 So. L. R. 852 ; 14 So. L. T. 33 116, 117 
 
 Crossfield v. Tanian, [1900] 2 Q. B. 629; 82 L. T. 813; 48 W. E. 
 
 609 ; 16 T. L. R. 476 ; 2 W. C. C. 141 573, 575 
 
 Crumble v. WaUsend Local Bd., [1891] 1 Q. B. 503 ; 60 L. J. Q. B. 
 
 392; 64L. T. 490; 55 J. P. 421; 7T.L. R. 229 247 
 
 Cuff V. Newark & New York Ry. Co., (1872), 6 Vroom (N. J.) 17 ... 285 
 Cullen V. Thompson, (1862), 4 Macq. (H. L. So.) 424 ; 2 Paterson 
 
 1143 13 
 
 Cundy v. Le Cooq, (1884), 13 Q. B. D. 207 ; 53 L. J. M. C. 125 ; 51 
 
 L. T. 265; 82 W. R. 769; 48 J. P. 599 155,156 
 
 Cunningham v. Grand Trunk Ry. Co., (1871), 31 Upp. Can. Q. B. 
 
 350 43 
 
 Cunningham v. M'Gregor & Co., (1901), 3 P. 775 ; 38 So. L. R. 574 ; 
 
 9Sc. L. T. 36 464 
 
 Czech V. General Steam Navigation Co., (1867), L. E. 3 C. P. 14 ; 37 
 
 L. J. C. P. 3 ; 17 L. T. 246 ; 16 W. R. 180 79 
 
 Dailly v. Beattie, (18,82), 20 So. L. R. 92 134 
 
 Dailly v. Watson, (1900), 2 P. 1044 ; 37 So. L. R. 782 ; 8 Sc. L. T. 73 403 
 
 Dakymple «. Dalrymple, (1811), 2 Hagg. Cons. 54 479 
 
 Dalton V. S.-E. Ry. Co., (1858), 4 C. B. N. S. 296; 27 L. J. C. P. 
 
 227; 4Jur. (N. S.)711; 6W. R. 574 105,110,550 
 
 Daniel v. Metropolitan Ey. Co., (1871), L. E. 5 H. L. 45 ; 40 L. J. 
 
 C. P. 121; 24 L. T. 815; 20W. R. 37 80 
 
 Daniel v.. Ocean Coal Co., Ltd., [1900] 2 Q. B. 250; 69 L. J. Q. B. 
 
 567 ; 82 L. T. 523 ; 48 W. R. 467 ; 64 J. P. 436 ; 16 T. L. R. 
 
 368; 2 W. C. C. 135 580,592 
 
 Darlington v. Rbsooe, [1907] 1 K. B. 219; 76 L. J. K. B. 371; 96 
 
 L. T. 179 ; 23 T. L. R. 167 ; 9 W. C. C. 1 101, 475, 580 
 
 Davey v. L. & S.-W. Ry. Co., (1883), 12 Q. B. D. 70 ; 53 L. J. Q. B. 
 
 58 ; 49 L. T. 739 ; 48 J. P. 279 ..." 83,84 
 
 Davidson u. Stuart, (1903), 34 Con. S. C. R. 215 168 
 
xxxiv Table of Cases 
 
 PAGE 
 
 Davidson v. Wright, (1887), 13 Vict. L. E. 351 137 
 
 Davidsson v. Hill, [1901] 2 K. B. 606 ; 70 L. J. K. B. 788 ; 85 L. T. 
 
 118 ; 49 W. B. 630 ; 17 T. L. B. 614 ; 9 Asp. M. C. 223 103, 476 
 
 Dayies v. Berwick, (Lord), (1861), 3 E. & E. 549 ; 30 L. J. M. C. 84 : 
 
 3 L. T. 697 ; 9 W. E. 334 ; 7 Jur. (N. S.) 410 273 
 
 Davies v. Mann, (1842), 10 M. & W. 546; 12 L. J. Ex. 10; 6 Jur. 
 
 954 88 
 
 Davies v. Bhymney Iron Co., Ltd., (1900), 16 T. L. E. 329 ; 2 W. C. C. 
 
 22 381,498,507 
 
 Davis V. Garrett, (1830), 6 Bing. 716 ; 4 M. & P. 540 ; 8 L. J. (0. S.) 
 
 C. P. 253 ; 31 E. E. 524 ... 65 
 
 Davis i;. New York, &c., Ed. Co., (1893), 159 Mass. 532 206 
 
 Davis V. Saunders, (1770), 2 Chitty, (K. B.) 639 16 
 
 Davison v. Henderson, (1895), 22 E. 448 ; 32 So. L. B. 313 77 
 
 Davys v. Eichardson, (1888), 21 Q. B. D. 202 ; 57 L. J. Q. B 409 • 
 
 59 L. T. 765 ; 36 W. B. 728 \ 247 
 
 De Francesco v. Barnum, (1890), 45 Oh. D. 430; 60 L. J. Ch 63 • 
 
 63L. T. 438; 39 W. B. 5; 6T. L. E. 463 ! 280 
 
 Degg V. Midland By. Co., (1857), 1 H. & N. 773 ; 26 L. J. Ex. 171 • 
 
 28 L. T. 357 ; 5 W. E. 364 ; 3 Jur. (N. S.) 395 15, 46, 57 
 
 Dempster v. Hunter & Sons, (1902), 4 F. 580 ; 39 Sc. L. E 395 ■ 9 
 
 Sc. L. T. 384 "... 488 
 
 Dempster v. Wm. Baird & Co., [1908] S. C. 722 ; 45 Sc. L. E. 432 664 
 
 Devine v. Caledonian By. Co., (1899), 1 F. 1105; 36 Sc. L. E. 877- 
 
 7S0.L.T.99 'g89_502 
 
 Devonald v. Eosser & Co., [1906] 2 K. B. 728 ; 75 L. J. K B 688 • 
 
 95 L. T. 232 ; 22 T. L. E. 682 ].. ' \ j^ 
 
 Devonshire ij. Eawlinson, (1864), 28 J. P. 72 277 
 
 Dewar v. Tasker, (1907), 23 T. L. B. 259 140 
 
 Dewhurst v. Mather, [1908], 2 K. B. 754 ; 24 T. L. E. 819 !!! 4S9, 546 
 
 Dickinson v. N.-E. By. Co., (1863), 2 H. & 0. 735 ; 33 L. J. Ex 91 • 
 
 9 L. T. 299 ; 12 W. E. 52 ' ^04 
 
 Dickson c. Evans, (1794), 6 T. E. 57 ; 3 E. E. 119 ... ... ... 74 
 
 Dimes v. Petley, (1850), 15 Q. B. 276 ; 19 L. J. Q. B. 449 ; 14 Jur 
 
 1132 . gg 
 
 Dixon J). Bell, (1816), 5 M. & Sel. 198 ; 1 Stark. 287 ; Holt, 233 ■ 17 
 
 E. B. 308 ... ... ... ... ' en 
 
 09 
 
 Dixon V. Muoklestone, (1872), L. B. 8 Ch. 155 ; 42 L J Ch 210 • 
 
 27 L. T. 804 ; 21 W. B. 178 ...„.'. 49 
 
 Dobson i;. United Collieries, Ltd., (1905), 8 F. 29 ; 43 So. L. B. 260 ' 
 
 13 be. L. T. 644 ' j,, 
 
 411 
 Doe d. Bish v. KeeUng, (1813), 1 M & S. 95 ; 14 E. B. 405 459 
 
 ^°'\n.IS8-VS.^23^2 * ^- ^^^' ^^ ^- ^- '^- ^- ^^^' 2 ^^- 
 
 ' ' ' * " " * • • ■ • • • ... ... 24 
 
 Dolau i>. Anderson, (1885), 12 E. 804 ; 22 So. L. E. 529 2O8 
 
 Donnelly v. Spencer & Co., (1898), 1 P. 1109 ; 36 So. L. B. 876 ." " 208 
 Donnelly v. W. Baird & Co., Ltd., [1908] S. C. 536 ; 45 Sc. L. B. 394 578 
 Donovan v. Laing, Wharton and Down Construction Svndicate 
 Ltd., [1893] 1 Q. B. 629; 63 L. J. Q. B. 25 ; 68 L T W2- 41 
 . W. B. 455 ; 57 J. P. 583 ; 9 T. L. B^313 ... ' 'l^' "^"it'lko 142, 478 
 
Table of Gases xxxv 
 
 PAGE 
 
 Dornan v. James Allan & Co., (1900), 3 P. 112 ; 38 Sc. L. B. 70 ; 8 
 
 So. L. T. 265 557 
 
 Dothie V. Robert MaoAndrew & Co., [1908] 1 K. B. 803 ; 77 L. J.K. B. 
 
 388 ; 98 L. T. 495 ; 24 T. L. B. 326 533 
 
 Boughty V. Pirbank, (1888), 10 Q. B. D. 358 ; 52 L. J. Q. B. 480 ; 
 
 48 L. T. 530 ; 48 J. P. 55 234 
 
 " Douglas," The, (1882), 7 P. D. 151 ; 51 L. J. Adm. 89 ; 47 L. T. 
 
 502 ; 5 Asp. M. 0. 15 69 
 
 Douglas V. United Mineral Mining Co., Ltd., (1900), 2 W. C. 0. 
 
 15 ; Times newspaper, 20th Peb 385,402 
 
 Dowding v. G. W. By. Co., (1857), 3 Jur. (N. S.) 1130 256 
 
 Dowds V. Bennie, (1902), 5 P. 268; 40 So. L. B. 239; 10 So. L. T. 
 
 439 578,625 
 
 Dowell V. General Steam Navigation Co., (1855), 5 E. & B. 195 ; 26 
 
 L. J. Q. B. 59 ; 1 Jur. (N. S.) 800 ; 3 W. E. 492 88 
 
 Doyle V. Seattle & Sons, (1900), 2 P. 1166 ; 87 Sc. L. B. 915 ... 529 
 
 Drew «. East Whitby, (1881), 46 Upp. Can. Q. B. 107 25 
 
 DubUn, Wioklow and Wexford By. Co. v. Slattery, (1878), 8 App. 
 
 Gas. 1155 ; 39 L. T. 365 ; 27 W. B. 191 78,83 
 
 Duckworth v. Johnson, (1859), 4 H. & N. 653 ; 29 L. J. Ex. 25 ; 
 
 5 Jur. (N. S.) 630 ; 7 W. B. 655 110 
 
 Duff V. National Telephone Co., (1889), 16 B. 675 ; 26 Sc. L. E. 512 92, 93 
 DuUeu V. White & Sons, [1901] 2 K. B. 669 ; 70 L. J. K. B. 837 ; 
 
 ■ 85L. T. 126; SOW. B. 76; 17T. L. B. 555 84 
 
 Duncan «. Findlater, (1839), 6 CI. & P. 894 102 
 
 Dundee & Arbroath Joint By. Co. v. Carlin, (1901), 3 P. 843 ; 88 
 
 So. L. B. 635 ; 9 So. L. T. 46 487,489 
 
 Dunham v. Clare, [1902] 2 K. B. 292 ; 71 L. J. K. B. 688 ; 86 L. T. 
 751 ; 50 W. B. 596 ; 66 J. P. 612 ; 18 T. L. B. 645 ; 4 W. C. C. 
 
 102, 55, 852 
 
 Dunkley a. Harrison, (1887), 56 L. T. 660 ; 51 J. P. 788 17 
 
 Dunlop V. Higgins, (1848), 1 H. L. 0. 381 ; 12 Jur. 295 265 
 
 Dunlop V. M'Oready, (1900), 2 P. 1027; 87 So. L. E. 779; 8 So. 
 
 L.T.91 ... ... 443,447 
 
 Dunlop V. Bankin & Blaokmgre, (1901), 4 P. 203 ; 89 So. L. E. 146 664 
 Dunn V. Maodonald, [1897] 1 Q. B. 555 ; 66 L. J. Q. B. 420 ; 76 
 
 L. T. 444 ; 45 W. E. 355; 13 T. L. E. 102, 292 282 
 
 Durham v. Brown, Ltd., (1898), 1 P. 279; 36 So. L. E. 190; 6 So. 
 
 L. T. 239 373,385,886 
 
 Duthie V. Caledonian By. Co., (1898), 25 B. 934 ; 35 So. L. B. 726 255 
 
 Dyer v. Munday, [1895] 1 Q. B. 742 ; 64 L. J. Q. B. 448 ; 72 L. T. 
 
 448 ; 43 W. B. 440 ; 59 J. P. 276 ; 11 T. L. B. 282 ; 14 B. 306 147, 369 
 Dynen v. Leach, (1857), 26 L. J. Ex. 221 ; 29 L. T. (0. S.) 81 ; 5 W. 
 
 B. 490 27,32,34 
 
 698 
 
 Eaglesfield v. Londonderry (Marquis of), (1876), 4 Ch. D. 693; 38 
 L. T. 303 ; 26 W. E. 540 
 
 East & West India Dock Co. u. Kirk & Eandall, (1887), 12 App. Cas. 
 
 738 ; 57 L. J. Q. B. 295 ; 58 L. T. 158 629 
 
 Eckert V. Long Island Eailroad Co., (1871), 43 N. Y. 502 91 
 
xxxvi Talle of Gases 
 
 FAQE 
 
 Edwards «. Godfrey, [1899] 2 Q. B. 333; 63 L. J. Q-^. 666; 80 
 
 L T. 672 ; 47 W. &. 551 ; 15 T. L. B, 335 ; 1 W. C. C. 32 417, 418, 410 
 
 421, 426 
 
 Edwards v. G. W. By. Co., (1851), 11 0. B. 588 ; 21 L. J. 0. P. 72 ... 244 
 Edwards v. Guest, Keen & Nettlefolds, Ltd., [1904] 1 K. B. 339; 
 
 73 L. J. K. B. 165 ; 90 L. T. 49 ; 52 W. B. 356 ; 68 J. P. 297 ; 
 
 20T. L. R. 160 688 
 
 Edwards v. Hatcheon, (1839), 16 R. 694 ; 26 So. L. B. 550 53 
 
 Edwards v. Internationfil Goal Co., Ltd., (1899), 5 W. C. C. 21 ; 
 
 Times newspaper, 13 Nov 389 
 
 Edwards v. London and Brighton By. Co., (1865), 4 P. cfe F. 530 ... 23 
 
 Edwards v. L. & N.-W. By. Co., (1870), L. B. 5 C. P. 445 ; 39 L. J. 
 
 C. P. 241 ; 22 L. T. 656 ; 18 W. B. 834 152 
 
 Edwards v. Melbourne and Metropolitan Board of Works, (1893), 19 
 
 V. L. B. (L.) 482 84 
 
 Edwards v. Midland By. Co., (1880), 6 Q. B. D. 287 ; 50 L. J. Q. B. 
 
 281; 43 L.T. 694; 29 W.B. 609; 45 J. P. 374 151 
 
 Bgerton v. Brownlow (Earl), (1853), 4 H. L. C. 1 ; 23 L. J. Ch. 348 ; 
 
 18Jur. 71 • 295 
 
 Eisten v. North British By. Co., (1870), 8 Maoph. 980; 42 So, Jur, 
 
 575 107 
 
 Elder «. Croall, (1849), 11 Dunlop 1040 107 
 
 Ellen «. G. N. By. Co., (1900), 17 T. L. B. 453 118 
 
 Elliott 0. Liggins, [1902] 2 K. B. 84 ; 71 L. J. K. B. 483 ; 87 L. T. 
 
 29; 50 W. B. 524; 18 T. L. E. 514 ; 4 W. C. C. 11 ... 531, 577, 688 
 
 Elliot J). Tempest, (1888), 5 T. L. B. 154 169 
 
 Ellis V. Joseph Ellis & Co., [1905] 1 K. B. 324 ; 74 L. J. K. B. 229 ; 
 
 92 L. T. 718 ; 53 W. R. 311 ; 21 T. L. B. 182 ; 7 W. C. C. 97 445, 452 
 Ellis V. Knott, (1900), 2 W. C. C. 116 ; Times newspaper, 9th April 566, 574 
 
 EUsbury v. New York, &o., Bd. Co., (1898), 172 Mass. 130 185 
 
 Emary v. NoUoth, [1903] 2 K. B. 264 ; 72 L. J. K. B. 620 ; 89 L. T. 
 
 100 ; 52 W. E. 107 ; 67 J. P. 354 ; 19 T. L. E. 530 ; 20 Cox C. 0. 507 155 
 Emmens v. Elderton, (1853), 4 H. L. C. 624 ; 13 C. B. 495 ; 18 Jur. 
 
 21 10,445 
 
 Engel V. New York, Providence & Boston Bd. Co., (1893), 160 Mass. 
 
 260 187 
 
 Englehart v. Farrant & Co., [1897] 1 Q. B. 240 ; 66 L, J. Q. B. 122 ; 
 
 75 L. T. 617 ; 45 W. B. 179 ; 13 T. L. B. 81 ... 54, 55, 56, 64, 71 
 
 " Englishman," The, and " Australia," The, [1895] P. 212 ; 64 L. 
 
 J. P. 74 ; 72 L. T. 203 ; 43 W. R. 670 ; 7 Asp. M. G. 605 ; 11 B. 757 154 
 Enohin v. Wylie, (1862), 10 H. L. C. 1 ; 31 L. J. Ch. 402 ; 8 Jur. 
 
 (N.S.) 897 ; 6 L.T. 263; low. E. 467 36,295 
 
 Eureka Co. i). Bass, (1886), 60 Am. E. 152 192 
 
 Evans v. Cook, [1905] 1 K. B. 53 ; 74 L. J. K. B. 95 ; 92 L. T. 43 ; 53 
 
 W.E.81; 21T.L.E.42 682,691 
 
 Evans v. Liverpool Corporation, [1906] 1 K. B. 160 ; 74 L. J. K. B. 742 ; 
 
 69J.P.263; 2L.G.E.868; 21T.L.B.558 45 
 
 Evans v. Penwyllt Dinas Silica Brick Co., (1901), 18 T. L. B. 58 ; 4 
 
 W.C.C.lOl ... 446,447 
 
 Ewbank t). Nutting, (1849), 7 C. B. 797 142 
 
 Eysten v. Studd, (1574), 2 Plowd. 459 ; 75 Eng. Bep. 688 ... 266, 443, 449 
 
Table of Cases xxxvii 
 
 PAGE 
 
 Fagan v. Murdoch, (1899), 1 F. 1179 ; 36 So. L. B. 921 ; 7 So. L. T. 
 
 U3 473,549 
 
 Pagan «. Eeed, (1899), Times newspaper, 6th June 418 
 
 Falconer v. London & Glasgow Engineering, etc., Co., (1901), 3 F. 564 ; 
 
 38 So. L. E. 381 ; 8 So. L. T. 430 378,390 
 
 Falconer v. M'Oabe, (1901), 3 F. 210 ; 38 So. L. E. 112 ; 8 Sc. L. T. 339 269 
 
 Farmer «. Grand Trunk By. Co., (1891), 21 Ont.E. 299 116 
 
 Famham v. New Bank Coal Co., Ltd., (1896), 23 E. 722 ; 33 So. L. E. 
 
 555; 4So.L. T. 2 202,207 
 
 Farrant v. Barnes, (1862), 11 C. B. N. S. 553 ; 31 L. J. C. P. 137 ; 
 
 8 Jur. (N. S.) 868 27 
 
 Farwell v. Boston and Worcester Eaihroad Oorpn., (1842), 45 Mass. 
 
 49 ; 3 Maoq. (H. L. So.) 316 21,186 
 
 Feltham v. England, (1866), L. E. 2 Q. B. 33 ; 7 b1 & S. 676 ; 36 L. J. 
 
 Q.B.14; 15W.E.151 6 
 
 Fenn v. MiUer, [1900] 1 Q. B. 788 ; 69 L. J. Q. B. 439 ; 82 L. T. 284 ; 
 
 48W.E.369; 64 J. P. 356; 16T.L.E.265; 2 W. 0.0.55 404,497, 
 
 500, 501 
 Fenton v. J. Thorley & Co., [1903] A. 0. 443 ; 72 L. J. K. B. 787 ; 89 
 
 L.T. 314; 52W.E.81; 19T.L.E.684; 5 W. 0. 0. 1 50,123,346,347, 
 
 348, 353, 354, 355 
 Ferguson, Ex parU, (1871), L. E. 6 Q. B. 280 ; 40 L. J. Q. B. 105 ; 
 
 24L.T.96; 19W.E.746; lAsp.M.0.8 452 
 
 Ferguson v. Green, [1901] 1 Q. B. 25 ; 83 L. T. 461 ; 49 W. E. 105 ; 
 
 64 J. P. 819; 17T. L. E. 41 404 
 
 Ferris v. Cowdenbeath Coal Co., Ltd., (1897), 24 E. 615; 34 Sc. L. 
 
 E.492; 4SC.L.T.335 171 
 
 Field V. Longden, [1902] 1 K. B. 47 ; 71 L. J. K. B. 120; 85 L. T. 
 
 571 ; 50 W. E. 212 ; 66 J. P. 291 ; 18 T. L. E. 65 ; 4 W. 0. 0. 
 
 20 595,596,662,663,683 
 
 Fielden ii. Morley Corporation, [1900] A. 0. 133 ; 69 L. J. Oh. 314 ; 82 
 
 L.T.29; 48W.jE.545; 64J.P.484; 16T.L.E.219 ... 123,247 
 
 Fife Coal Co. v. Cooper, (1907), 44 Sc. L. E. 402, see Cooper v. Fife 
 
 Coal Co. 
 
 FifeCoalOo.i;.Davidson, [1907]S.C.90; 44S0.L.E. 108 576 
 
 Fife Coal Co. «. Lindsay, [1908] S. C. 431 ; 45 So. L. E. 817 , 665 
 
 Filionu.TheQueen, (1894),4Ex.0.E. (Can.)134 132 
 
 Pindlay v. Angus, (1887), 14 E. 812 ; 24 Sc. L. E. 237 93 
 
 Pinlay v. Miscampbell, (1890), 20 Ont. E. 29 159 
 
 Pinnie v. Duncan, (1904), 7 P. 254 ; 42 So. L. E. 192 ; 12 So. L. T. 
 
 557 ' ... ... 682 
 
 Finnighan «;. Peters, (1861), 23 Dunlop 260 ; 33 So. Jur. 119 ... 25 
 
 Fitzgerald, In re, Surman v. Fitzgerald, [1904] 1 Oh. 573 ; 73 L. J. Oh. 
 
 436; 90L.T.266; 52W.E.432; 20T.L.E.332 295 
 
 Fitzgerald v. W. G. Clarke & Son, [1908], 2 K. B. 796; 99 L. T. 101 
 
 299, 364, 369, 378 
 Pitzpatrick v. Evans & Co., [1902] 1 K. B. 505 ; 71 L. J. K. B. 302 ; 
 
 86 L. T. 141 ; 60 W. E. 290 ; 17 T. L. E. 253 ... 276, 289, 399, 447 
 Pitzpatrick v. Hindley Field Colliery Co., Ltd., (1901), 110 Law 
 
 Times newspaper, 548 ; 3 W. 0. 0. 37 ; 4 W. 0. 0. 7 884 
 
 Fletcher v. L. & N.-W. Ey., [1892] 1 Q. B. 122 ; 61 L. J. Q. B. 24 ; 
 
 65 L. T. 605 ; 40 W. E. 182 ; 8 T. L. E. 77 13 
 
 B.E.L. ^ 
 
xxxviii Table of Cases 
 
 PAGE 
 
 Fletcher v. Bylands, (1866), L. B. 1 Ex. 265 ; affirmed sub nom, 
 
 Eylands v. Fletcher, (1868), L. B. 3 H. L. 330 ; 37 L. J. Ex. 161 ; 
 
 19L. T. 220 Ta 
 
 Plinn V. Perkins, (1862), 32 L. J. Q. B. 10 ; 7 L. T. 364 ; 11 W. B. 95 ; 
 
 8 Jur. (N. S.) 1177 101 
 
 Flower v. Adam, (1810), 2 Taunt. 314 ; 11 E. B. 591 68 
 
 Flower v. L. & N.-W. By., Co., [1894] 2 Q. B. 65 ; 03 L. J. Q. B. 547 ; 
 
 70 L. T. 829 ; 42 W. B. 519 ; 10 T. L. E. 427 ; 9 B. 494 . . . 36, 280 
 
 Flower v. Low Leyton Local Bd., (1877), 5 Oh. D. 347 ; 46 L. J. Oh. 
 
 621; 36L.T.760; 25W.B.545 246 
 
 Forbes v. Aberdeen Harbour Commissioners, (1888), 15 E. 323 ; 25 
 
 Sc.L. B.239 39 
 
 Porder v. G. W. By. Co., [1905] 2 K. B. 532; 74 L. J. K. B. 871; 93 
 
 L. T. 344; 53W. B. 574; 21T. L. E. 625 395 
 
 Foreman v. Canterbury, (Mayor of), (1871), L. E. 6 Q. B. 214 ; 40 L. J. 
 
 Q. B. 138; 24L. T. 385; 19W. E. 719 288 
 
 Forgan v. Burke, (1861), 12 Ir. 0. L. B. 495 268 
 
 Formau u. Dawes, (1841), Car. & M. 127 260 
 
 Forrester v. M'Callum, (1901), 3 P. 650 ; 38 Sc. L. E. 448 ; 8 So. L. T. 
 
 486 520 
 
 Forsyth v. Bamage, (1890), 18 E. 21 ; 28 So. L. E. 26 ... 166, 172 
 
 Foulkes V. Metropolitan District By., (1880), 5 C. P. D. 157 ; 49 
 
 L. J. C. P. 361 ; 42 L. T. 345 ; 28 W. E. 526 15 
 
 Fowler v. Lock, (1872), L. E. 7 C. P. 272 ; (1874), L. E. 10 0. P. 90; 
 
 31L.T.884; 23W. E.415 32 
 
 Fox V. Veale, (1841), 8 M. & W. 126 ; 10 L. J. Ex. 273 ; 9 Dowl. 798 ; 
 
 5 Jur. 345 257 
 
 " Franoonia," The, (1877). 2 P. D. 163 ; 36 L. T. 640 ; 25 W. E. 699 ; 
 
 3 Asp. M. C. 435; sub nom. Jeffrey v. " Franconia " (Owners 
 
 of), 46 L. J. P. 33 104 
 
 " Praukland," The, [1901] P. 161 ; 70 L. J. P. 42 ; 84 L. T. 395 ; 17 
 
 T. L. E. 419 ; 9 Asp. M. C. 196 154 
 
 Franklin v. S.-B. By. Co., (1858), 3 H. & N. 211 ; 6 W. B. 573 ; 4 Jur. 
 
 (N. S.)565 110 
 
 Eraser v. Fraser, (1882), 9 E. 896 ; 19 Sc. L. E. 646 179 
 
 Eraser v. G. N. of Scotland By. Co., (1901), 3 P. 908 ; 38 So. L. E. 
 
 653 346,567,612,613 
 
 Fraser v. Hood, (1887), 15 B. 178 ; 25 Sc. L. E. 164 30, 169, 183 
 
 Frasersv.EdinburghTramway Oo.,(1882),10B.264; 20So.L.E.192 97 
 Preeland v. Macfarlane, Lang & Co., (1900), 2 F. 832 ; 37 Sc. L. B. 
 
 599; 7 Sc.L. T. 456 346,573 
 
 Preemantle v. L. & N.-W. By. Co., (1860), 2 F. & P. 337 ; (1861), 
 
 lOC.B.N. S. 89; 31L. J. C. P. 12; 9W. B. 611 ... ... 60 
 
 French v. Underwood, (1903), 19 T. L. B. 416 ; 5 W. C. C. 119 471, 549 
 Fritz V. Hobson, (1880), 14 Ch. D. 542 ; 49 L. J. Ch. 321 ; 42 L. T. 
 
 225, 677 ; 28 W. B. 459, 722 ... 638 
 
 Froy V. Balmain Steam Perry Co., (1886), 7 N. S. W. B. (Law) 146 
 
 267, 269, 278, 279 
 Fullers, Ltd. v. Squire, [1901] 2 K. B. 209 ; 70 L. J. K. B. 689 ; 85 
 
 L. T. 249 ; 49 W. E. 683 ; 65 J. P. 660 ... 461 
 
 FuUerton, Hodgart & Barclay v. Logue, (1901), 38 So. L. E. 738, 
 
 see Logue v. Pullerton, Hodgart & Barclay. 
 
Table of Gases xxxix 
 
 PAGE 
 
 Grardner «. Grace, (1858), 1 F. & F. 359 92 
 
 Garland u. City of Toronto, (1896), 23 Ont. A. R. 238 219 
 
 Gas Float Whitton (No. 2) ; see Wells v. Owners of Gas Float 
 
 Whitton 
 Gautret v. Bgerton, (1867), L. B. 2 0. P. 371 ; 36 L. J. 0. P. 191; 
 
 16 L. T. 17 ; 15 W. B. 638 57,293 
 
 Geary v. Dixon, (1899), 36 So. L. B. 640 569, 570 
 
 Gee V. MetropoUtan By. Co., (1873), L. B. 8 Q. B. 161 ; 42 L. J. Q. B. 
 
 105 ; 28 L. T. 282 ; 21 W. R. 584 79 
 
 General Steam Navigation Co. v. British and Colonial Steam Navi- 
 gation Co., Ltd., (1869), L. B. 4 Ex. 238; 38 L. J. Ex. 97; 20 
 
 L. T. 581 ; 17 W. p. 741 U 
 
 Geprge v. Glasgow Coal Co., Ltd., [1908] S. C. 846 ; 45 So. L. B. 686, . 
 
 in H. L. 25 T. L. B. 57 411 
 
 George v. Glasgow Coal Co., Ltd., [1908] 25 T. L. B. 57 (H. L.) 410, 412 
 " George and Richard," The, (1871), L. R. 3 A. & E. 466 ; 24 L. T. 
 
 717 ; 20 W. E. 245 104 
 
 George Whitechurch, Ltd. v. Cavanagh, see Whiteohurch (George) 
 V. Cavanagh. 
 
 Gerard (Lord) v. Kent County Council, [1897] 1 Q. B. 351, affirmed 
 
 sub nom. Kent C. C. v. Gerard (Lord), [1897] A. C. 633; 66 
 
 L. J. Q. B. 677 ; 77 L. T. 109 ; 46 W. R. Ill ; 61 J. P. 804 ; 13 
 
 T.L. R. 536 64 
 
 Gibbs V. G. W. By. Co., (1884), 12 Q. B. D. 208 ; 53 L. J. Q. B. 543 ; 
 
 50 L. T. 7 ; 32 W. R. 329 ; 48 J. P. 230 237,238 
 
 Gibson v. Nimmo, (1895), 22 R. 491 ; 32 So.L. R. 411 ; 2 So. L. T. 563 39 
 
 Gibson v. WUson, (1901), 3 F. 661 ; 38 Sc. L. R. 450 ; 8 So. L. T. 497 884 
 Gibson v. Wormald & Walker, Ltd., [1904] 2 K. B. 40 ; 73 L. J. K. B. 
 
 491; 91 L. T. 7; 52 W. R. 661 ; 68 J. P. 382; 20 T. L. B. 452; 
 
 6W. C. C. 155 639,672 
 
 Gilbertson v. Richardson, (1848), 5 C. B. 502 ; 17 L. J. C. P. 112 ; 
 
 12Jur. 292 68 
 
 Giles V. Belford, Smith & Co., [1903] 1 K. B. 843; 72 L. J. K. B. 
 
 569 ; 88 L. T. 754 ; 51 W. B. 692 ; 67 J. P. 399 ; 19 T. L. B. 
 
 422; 5 W. C. C. 136 456,529 
 
 Giles V. Thames Ironworks and Shipbuilding Co., (1885), 1 T. L. B. 
 
 469 ; 185 
 
 GUI V. Aberdeen Steam Trawling and Pishing Co., Ltd., [1908] S. 
 
 C. 328; 45So. L. B. 247 453 
 
 Gill t;. Thorneycroft, (1894), 10 T. L. B. 316 175,177 
 
 Gillard v. Lancashire & Yorkshire By. Co., (1848), 12 L. T. (0. S.) 356 109 
 
 GiUespie v. Hunter, (1898), 25 B. 916, 35 So. L. B. 714 151 
 
 Gillett u. Fairbank, (1886), 3 T. L. B. 618 266,281,477 
 
 Gilshannon v. Stony-Brook Bailway Corporation, (1852), 64 Mass. 
 
 372 
 
 409, 641 
 
 Glasgow & S. W. By. Co. v. Laidlaw, (1900), 2 F. 708 ; 37 So. L. R, 
 503 
 
 Glasgow Coal Co. v. Sneddon, (1905), 7 P. 485 ; 42 So. L. B. 365 
 12 Sc.L. T. 717 
 
 Glenister i;. G. W. By. Co., (1873), 29 L. T. 423 
 
 Glover v. L. & S.-W. By. Co., (1867), L. B. 3 Q. B. 25 ; 37 L. J. Q 
 B. 57; 17L. T. 139 
 
 405, 412 
 395 
 
 68 
 
xl Table of Cases 
 
 PAGE 
 
 Godefroy*. Dalton, (1830),6Bmg. 460; 4M.&P.149; 8L. J.(O.S.) 
 
 C. P. 79 ; 31 E. B. 467 63 
 
 Gofi V. a. N. By. Co., (1861), 3 E. & E. 672 ; 30 L. J. Q. B. 148 ; 
 
 3 L. T. 850 ; 7 Jur. (N. S.) 286 142,151 
 
 Golder v. Caledonian Ey. Co., (1902), 5 P. 128 ; 40 So. L. E. 89 ; 10 
 
 So. L. T. 373 350 
 
 Golding V. CaudweU, (1851), 2 L. M. & P. 175 257 
 
 Goldstone 1J. GifEard, (1899), Times, 19th Jan. 59 
 
 Goodes V. Clufi, (1884), 18 Q. B. D. 694 656 
 
 Goodlet V. Caledonian Ey. Co., (1902) 4 ¥. 986 ; 39 So. L. E. 759; 
 
 lOSc. L. T. 203 374 
 
 Gordon, E.x parte, (1855), 25 L. J. M. C. 12 ; 25 L. T. (0. S.) 187 ; 3 
 
 W. E. 568 ; 1 Jur. (N. S.) 683 275 
 
 Gordon v. Jennings, (1882), Q. B. D. 45 ; 51 L. J. Q. B. 417 ; 46 L. 
 
 T. 584 ; 30 W. E. 704 ; 46 J. P. 519 266,443 
 
 Gorley v. Backworth Collieries, (1905), 93 L. T. 360 ; 21 T. L. E. 
 
 494; 7 W. 0. C. 19 849 
 
 Goslan v. James Gillies & Co., [1907] S. C. 68 ; 44 Sc. L. E. 71 ... 386 
 Goudie v. Paul, (1894), 22 E. 1 ; 32 So. L. E. 3 ; 2 So. L. T. 258 ... 255 
 Gough V. Crawshay Brothers, [1908] 1 K. B. 448 ; 77 L. J. K. B. 236 ; 
 
 98L. T. 327; 24T. L. E. 186 542 
 
 Gourlay •«. Murray, [1908] S. C. 769; 45 Sc. L. E. 577 ... 469, 550, 569 
 Gourlay Bros. & Co. v. Perrier, (1902), 4 P. 711 ; 39 Sc. L. E. 458 686 
 
 Gow V. Henry, (1899), 2 P. 48 ; 37 Sc. L. E. 40 108 
 
 Graoey v. Belfast Tramway Co., [1901] 2 I. E. 322 146, 149 
 
 Graham 1J. Ingleby, (1848), 1 Ex. 651 ; 5 Dowl. & L. 737 429 
 
 Graham v. Public Works Commissioners, [1901] 2 K. B. 781 ; 70 
 L. J. K. B. 860 ; 85 L. T. 96 ; 50 W. E. 122 ; 65 J. P. 677 ; 17 
 
 T. L. E. 540 .., ... 282 
 
 Graham «. Thomson, (1822), 1 Shaw 309 267 
 
 Graig' Brick Co. v. Williams, (1901), 18 Nov., Parsons & Bertram 
 
 W. C. Acts, 8rd ed. 124 574 
 
 Grainger v. Aynsley, (1880), 6 Q. B. D. 182; 50 L. J. M. C. 48; 43 
 
 L. T. 608; 29 W.E. 242; 45 J. P. 142 141,277,289 
 
 Grand Trunk Ey. Co. of Canada v. Jennings, (1888), 13 App. Oas. 
 
 800; 58L.J.P.C.1; 59L.T.679; 37W.E.408; 4T.L.E.752 115 
 Grand Trunk Ey. Co. of Canada v. Wfiegar, (1894), 23 Can. S. C. 422 210 
 Grant v. Caledonian Ey. Co., (1870), 9 Macph. 258 ; 8 Sc. L. E. 192 93 
 
 Grant v. Glasgow & S.-W. Ey. Co., [1908] S. C. 187 ; 45 Sc. L. E. 128 870 
 
 Gray iJ. Haig, (1855), 20 Beav. 219 81 
 
 Gray 1;. Thomson, (1889), 17 E. 200 ; 27 Sc. L. E. 113 166 
 
 Great Eastern Ey. Co. v. Goldsmid, (1884), 9 App. Cas. 927 ; 54 
 
 L. J. Ch. 162 ; 52 L. T, 270 ; 33 W. E. 81 ; 49 J. P. 260 ... 295 
 
 Great Pingal Consolidated v. Sheehan, (1905), 3 C. L. E. (Australia) 
 
 176 557 
 
 Great North of Scotland Ey. Co. v. Praser, (1901), 38 Sc. L. E. 653 ; 
 
 see Praser v. G. N. of Scotland Eailway. 
 Great Northern Ey. Co. v. Dawson, [1905] 1 K. B. 831 ; 74 L J. K B 
 
 271 ; 92 L. T. 145 ; 53 W. E. 309 ; 21 T. L. E. 193 ; 7 W. C. C. 114 - 533 
 Great Northern Ey. Co. v. Whitehead & Co., (1902), 18 T. L.E. 816 
 
 690, 694 
 
Table of Cases xli 
 
 PAGE 
 
 Great Weatern Railway Co. v. Blower, see Blower v. G. W. Ry. Co. 
 Green v. Thompson, [1899] 2 Q. B. 1 ; 68 L. J. Q. B. 719 ; 80 L. T 
 
 691 ; 48 W. R. 31 ; 63 J. P. 486 280 
 
 Greenhill v. Caledonian Ry. Co., (1900), 2 P. 736 ; 87 So. L. R. 524 ; 
 
 7So. L. T. 458 487 
 
 Greenland v. Chaplain, (1850), 5 Ex. 243 ; 19 L. J. Ex. 293 ... 67, 87 
 
 Greenwell v. HoweU, [1900] 1 Q. B. 585; 69 L. J. Q. B. 461; 82 
 
 L. T. 183; 48 W. R. 307; 16T. L. R. 235 246 
 
 Greenwood u. Greenwood, (1907), 24 L. T. R. 24 40,165,424 
 
 Greenwood «. Hawkings, (1906), 23 T. L. R. 72 682 
 
 Greenwood v. Seymour, see Seyniour v. Greenwood. 
 
 Gregory v. Piper, (1829), 9 B. & C. 591 ; 4 M. & Ry. 500 50, 145, 146, 148 
 
 Grendon v. Lincoln, (Bishop), (1575), Plow. 493 ; 75 Eng. Rep. 734 37 
 
 Grenier D. The Queen, (1899), 6 Ex. C. R. (Canada), 276 132 
 
 Griffiths V. Davis & Sons, Ltd., (1899), Times newspaper, 13th Nov. 470 
 Griffiths V. Dudley (Earl), (1882), 9 Q. B. D. 357 ; 51 L. J. Q. B. 
 
 543 ; 47 L. T. 10 ; 30 W. R. 797 ; 46 J. P. 711 ... 36, 37, 241, 294 
 
 Griffiths V. Gidlow, (1853), 8 H. & N. 648 ; 27 L. J. Ex. 404 ... 28 
 
 Griffiths V. London and St. Katherine Docks Co., (1884), 13 Q. B.D. 
 
 259 ; 53 L. J. Q. B. 504 ; 51 L. T. 533 ; 33 W. R. 35 ; 49 J. P. 
 
 100 27,37,169,194,293 
 
 GriU V. General Iron Screw Collier Co., (1866), L. R. 1 C. P. 600 ; 
 
 35 L. J. C. P. 321 ; 12 Jur. (N. S.) 727 ; 14 L. T. 711 ; 14 W. R. 
 
 893 16 
 
 Grizzle u. Frost, (1863), 3 P. & P. 622 40,92 
 
 Groves r. Puller, (1888), 4 T. L. R. 474 6 
 
 Groves v. Wimborne (Lord), [1898] 2 Q. B. 402 ; 67 L. J. Q. B. 862 ; 
 
 79 L. T. 284 ; 47 W. R. 87 ; 14 T. L. R. 493 25,62,251 
 
 Guthrie v. Boase Spinning Co., (1901), 8 P. 769 ; 38 Sc. L. B. 483 886, 407 
 
 GwiUiam v. Twist, [1895] 2 Q. B. 84 ; 64 L. J. Q. B. 474 ; 72 L. T. 
 
 579 ; 43 W. R. 566 ; 59 J. P. 484 ; 11 T. L. R. 415 ; 14 R. 461 50, 56 
 
 Haddock v. Pisher & Sons, (1900), 2 W. C. C. 48 ; Times newspaper, 
 
 7th May 673,674 
 
 Haddock v. Humphreys, (1899), 1 W. C. C. 117 ; Times, 1st Aug. ... 649 
 
 Halbot V. Lens, [1901] 1 Ch. 344 ; 70 L. J. Ch. 125 ; 83 L. T. 702 ; 
 
 49W. R. 214 12 
 
 Haley v. United OolUeries, [1907] S. C. 217 ; 44 Sc. L. B. 193 ... 383 
 
 Hall, In re, The Official Receiver, Ex parte, [19071 1 K. B. 875 ; 76 
 
 L. J. K. B. 546 ; 97 L. T. 33 ; 23 T. L. R. 327 ;'l4 Manson, 82 ... 584 
 
 Hall V. Johnson, (1865), 3 H. & C. 589 ; 34 L. J. Ex. 222 ; 11 L. T. 
 
 779 ; 13 W. R. 411 ; llJur. (N. S.) 180 22 
 
 Hall V. Lees, [1904] 2 K. B. 602 ; 73 L. J. K. B. 819 ; 91 L. T. 20 ; 
 
 53 W. R. 17 ; 20 T. L. R. 678 45 
 
 Hall V. N.-E. Ry. Co., (1885), 1 T. L. R. 359 200, 206 
 
 Hall V. Snowdon, Hubbard & Co. (No. 1), [1899] 1 Q. B. 593; 68 
 L. J. Q. B. 363 ; 80 L. T. 256 ; 47 W. R. 322 ; 15 T. L. R. 244 ; 
 IW. C. C. 114 647,648 
 
xlii Table of Cases 
 
 PAGE 
 
 Hambro v. Burnand, [1903] 2 K. B. 399; [1904] 2 K. B. 10; 73 
 
 L. J. K. B. 669 ; 90 L. T. 803 ; 52 W. K. 583 ; 9 Com. Cas. 251 ; 
 
 20T. L. B. 398 1^* 
 
 Hamilton v. Groesbeok, (1889), 19 Ont. R. 76 ; (1891), 18 Ont. A. E. 
 
 437 ... 168,176 
 
 Hamilton Bridge Co. ■«. O'Connor, (1895), 24 Can. S. C. B. 598 ... 159 
 Hamlyn «. Crown Accidental Insurance Co., [1893] 1 Q. B. 750 ; 62 
 
 L. J. Q. B. 409 ; 68 L. T. 701 ; 41 W. E. 531 ; 57 J. P. 663 ; 9 
 
 T. L. E. 427 ; 4 E. 407 17 
 
 Hamlyn v. John Houston & Co., [1903] 1 K. B. 81 ; 72 L. J. K. B. 
 
 72; 87L.T.500; 51 W.E.99; 19T.L.E.66 4,147 
 
 Hammaok v. White, (1862), 11 C. B. N. S. 588 ; 31 L. J. C. P. 129 ; 
 
 5 L. T. 676 ; 10 W. B. 230 ; 8 Jur. (N. S.) 796 51,73,75 
 
 Hammersmith Vestry v. Lowenfield, [1896] 2 Q. B. 278; 65 
 
 L. J. Q. B. 662; 75 L. T. 182 ; 45 W. E. 60; 60 J. P. 600; 12 
 
 T. L. E. 459 424 
 
 Hammond v. Busaey, (1887), 20 Q. B. D. 79 ; 57 L. J. Q. B. 58 ; 4 
 
 T. L. E. 95 697 
 
 Handford v. George Clarke, Ltd., [1907] 1 K. B. 181 ; 76 L. J. K. B. 
 
 76; 96L. T. 175; 23T. L. E. 127; 9 W. C. C. 136 649 
 
 Hanlin u. Melrose, (1899), 1 P. 1012 ; 36 Sc. L. E. 814 476 
 
 Hannan, Sa;^orte, (1897), 18N. S. W. L. E. (L.)422 245 
 
 Hannan «. Hudson, 7 W. N. (N. S. W.) 105 207 
 
 Hanrahan v. Ardnamult Steamship Co., (1887), 22 L. E. Ir. 55 ... 26, 179 
 Hanson v. Australasian Steam Navigation Co., (1884), 5 N. S. W. E. 
 
 (Law) 407 279 
 
 Hanson v. Lancashire & Yorkshire Ey. Co., (1872), 20 W. E. 297 ... 60, 178 
 Hanson v. Waller, [1901] 1 K. B. 390 ; 70 L. J. K. B. 231 ; 84 
 
 L. T. 91 ; 49 W. E. 445; 17 T. L. E. 162 152, 153 
 
 Hardaker v. Idle District Coujacil, [1896] 1 Q. B. 335 ; 65 L. J. Q. B. 
 
 363 ; 74 L. T. 69 ; 44 W. E. 323 ; 60 J. P. 196 ; 12 T. L. E. 
 
 207 61,62,66 
 
 Hardcastle v. Bielby, [1892] 1 Q. B. 709 ; 61 L. J. M. 0. 101 ; 66 
 
 L. T. 343 ; 56 J. P. 549 155 
 
 Hardy v. Eyle, (1829), 9 B. & 0. 603 ; 7 L. J. (0. S.) M. C. 118 ; 
 
 4M. &E. 295 276 
 
 " Harrisburg," The, (1886), 119 U. S. (12 Davis) 199 102 
 
 Harris v. Tinn, (1889), 5 T. L. E. 221 76, 186, 198 
 
 Harrison v. G. N. Ey. Co., (1864), 3 H. & C. 231 ; 33 L. J. Ex. 266 ; 
 
 10 Jur. (N. S.) 992 ; 10 L. T. 621 ; 12 W. E. 1081 65, 69 
 
 Harrison v. Whitaker Bros., Ltd., (1900), 64 J. P. 54; 16 T. L. E. 
 
 108 ; 2 W. C. C. 12 374,390 
 
 Harrold v. Watney, [1898] 2 Q. B. 320 ; 67 L. J. Q. B. 771 ; 78 L. T. 
 
 788 ; 46 W. E. 649 ; 14 T. L. E. 486 41,71,93,94 
 
 Harrop v. Ossett Corporation, [1898] 1 Ch. 525 ; 67 L. J. Ch. 347 ; 
 
 78 L. T. 387 ; 46 W. E. 391 ; 62 J. P. 297 ; 14 T. L. E. 308 ... 246 
 Hart V. Lancashire & Yorkshire Ey. Co., (1869), 21 L. T. 261 ... 19, 60 
 Hartley v. Eochdale Corporation, [1908] 2 K. B. 594 ; 77 L. J. 
 
 K. B. 884 ; 72 J. P. 343 ; 24 T. L. E. 625 ; 6 L. G. E. 858 ... 54, 64 
 Harvey v. Dunlop, (1843), Lalor, Supplement to HiU & Denis, 193 52 
 
 Harwood and Abrahams, In re, [1901] 2 K. B. 304 ; 70 L. J. K. B. 
 
 746; 84L. T. 857 648 
 
Table of Gases ' xliii 
 
 PAGE 
 
 Hasker j;. Wood, (1885), 54 L. J. Q. B. 419 ; 33 W. B. 697 247 
 
 Haston v. Edinburgh, &o., Tramways Co., (1887), 14 E. 621 ; 24 So. 
 
 L.B. 435 183 
 
 Hatohard v. Mfege, (1887), 18 Q. B. D. 771 ; 56 L. J. Q. B. 397 ; 56 
 
 L. T. 662 ; 35 W. E. 576 ; 51 J. P. 277 ; 3 T. L. R. 546 ... 115 
 
 Hathaway v. Argus Printing Co., Ltd., [1901], 1 Q. B. 96 ; 70 
 L. J. K. B. 12 ; 83 L. T. 465 ; 49 W. R. 113; 64 J. P. 804 ; 17 
 
 T. L. E. 42 ; 3 W. C. C. 177 456,527,529 
 
 Haugbton v. North British Ry. Co., (1892), 20 E. 113 ; 80 So. L. E. 
 
 Ill ... 97 
 
 Haworth v. Andrew Knowles & Son, Ltd., Accident Society, (1908), 
 
 19T. L. E. 658 430 
 
 Hawtayne v. Bourne, (1841), 7 M. & W. 595 ;. 10 L. J. Ex. 224 ; 5 
 
 Jur. 118 50,67 
 
 Hayden v. Dick, (1902), 5 F. 150 j 40 So. L. E. 95 ; 10 Sc. L. T. 380 447 
 Haylett v. Vigor & Co., [1908] 2 E. B. 837 ; 24 T. L. E. 885 ... 366 
 
 Headford v. M'Clary Manufacturing Co., (1894), 21 Ont. A. E. 164 172 
 
 Hearn u. Phillips, (1886), 1 T. L. E. 475 260 
 
 Heaven v. Pender, (1883), 11 Q. B. D. 503 ; 52 L. J. Q. B. 702; 49 
 
 L. T. 357 ; 47 J. P. 709 58,54,58 
 
 Heoksoher v. Orosley, [1891] 1 Q. B. 224 ; 60 L. J. Q. B. 75 ; 39 
 
 W. E. 211 648 
 
 Hedley v. Pinkney & Sons' Steamship Co., [1894] A. C. 222 ; 63 
 
 L. J. Q. B. 419 ; 70 L. T. 680 ; 42 W. E. 497 ; 10 T. L. E. 347 ; 
 
 7 Asp. M. C. 483 ; 6 E. 106 14 
 
 Henderson v. Carron Co., (1889), 16 E. 633 ; 26 So. L. E. 456 ... 29 
 
 Hendry v. Caledonian Ey. Co., [1907] S. C. 732 ; 44 Sc. L. E. 584 ... 374 
 Hennessy v. MoCabe, [1900] 1 Q. B. 491; 69 L. J. Q. B. 173; 81 
 
 L. T. 575; 48W. E. 231; 64 J. P. 4; 16T. L. E. 77 355 
 
 Herron v. Charnley, (1900), 2 W. C. C. 24; Times newspaper, 
 
 19th February : 486 
 
 Heske v. Samuelson, (1883), 12 Q. B. D. 30 ; 53 L. J, Q. B. 45; 
 
 L. T.474 
 
 Hetherington v. Kemp, (1815), 4 Camp. 193 ; 16 E. E. 773 ... 
 Hetherington v. North-Eastern Ey. Co., (1882), 9 Q. B. D. 160 ; 
 
 L. J. Q. B. 495 ; 30 W. E. 797 ,. 
 
 Hewlett V. AUen, [1892] 2 Q. B. 662 ; affirmed, [1894] A. C. 383 ; 
 
 L. J. Q. B. 608 ; 6 E. 175 ; 71 L. T. 94 ; 42 W. E. 670 ; 58 J. 
 
 700; lOT. L. E. 464 
 
 Hewlett V. Hepburn, (1899), 16 T. L. E. 56 ; 2 W. C. C. 123 
 Hibbs V. Eoss, (1866), L. E. 1 Q. B. 534 ; 9 B. & S. 655 ; 35 
 
 L. J. Q. B. 193 ; 15 L. T. 67 ; 14 W. E. 914 ; 12 Jur. (N. S.) 812 144 
 Hick V. Eaymond & Eeid, [1893] A. 0. 22 ; 62 L. J. Q. B. 98 ; 68 
 
 L. T. 175 ; 41 W. E. 385 ; 7 Asp. M. C. 233 191 
 
 Hicks V. Newport Abergavenny & Hereford Ey. Co., (1857), 4 
 
 B. &S. 403n 114 
 
 Hide V. Proprietors of Trent Navigation, (1793), 1 Esp. (N. P.) 36 . . . 15 
 
 Higgs V. Maynard, (1866), 1 H. & E. 581 ; 14 L. T. 332 ; 14 W. E. 
 
 610 ; 12 Jur. (N. S.) 705 77 
 
 Higgins V. Butcher, (1606), Yelv. 89; Noy 18; 80 Eng. Eep. 61 ... 102 
 Hildesheimer v. W. & F. Faulkner, Ltd., [1901] 2 Oh. 552 ; 70 
 
 L. J. Oh. 800 ; 85 L. T. 332 ; 49 W. E. 708 ; 17 T. L. E. 737 ... 548 
 
 49 
 
 
 159, 
 
 164 
 
 • .. 
 
 264 
 
 51 
 
 
 111, 
 
 112 
 
 63 
 
 
 P. 
 
 
 
 294 
 
 
 525 
 
161 
 118 
 
 xliy Table of Gases 
 
 PAGE 
 
 HiU V. Begg, [1908] 2 K. B. 802; 99 L. T. 104; 24 T. L «■ ^^ ^^^ 
 
 711 .:! ... 457,458,459,544 
 
 Hill V. New Biver Co., (1868), 9 B. & S. 303 ; 18 L. T. 355 68 
 
 Hindle v. Birtwistle, [1897] 1 Q. B. 192; 66 L. J. Q. B. 173; 76 
 
 L. T. 159 ; 45 W. B. 207 ; 61 J. P. 70 ; 13 T. L. E. 129 ; 18 Cox 
 
 CO. 508 
 
 Hlrsohfield v. London, Brighton &; South Coast By. Co., (1876), 2 
 
 Q. B. D. 1; 46L. J. Q. B. 94; 35L. T. 473 
 
 Hoare v. Eobert Green, Ltd., [1907] 2 K. B. 315 ; 76 L. J. K. B. 730 ; 
 
 96 L. T. 724 ; 71 J. P. 341 ; 23 T. L. E. 483 272, 461 
 
 Hobbs V. Bradley, (1900), 2 F. 744 ; 37 So. L. E. 532 ... 641, 702 
 
 Hoddinott v. Newton, Chambers & Co., Ltd., [1901] A. C. 49 ; 70 
 
 L. J. K. B. 150 ; 84 L. T. 1 ; 49 W. E. 380 ; 17 T. L. E. 134 404, 640 
 Hoey V. Dublin & Belfast Junction Ey. Co., (1870), 5 Ir. E. 0. L. 
 
 206 ; 18 W. E. 930 24,32 
 
 Holderan «. Bagnell, (1879), 4 L. E. Ir. 740 108 
 
 HoUeran i;. Bagnell, (1880), 6 L. E. Ir. 383 108,110 
 
 HoUiday.i). National Telephone Co., [1899] 2 Q. B. 393 ; 68 L. J. Q. B. 
 
 1016; 81L. 0?. 282; 47W. E. 658; 15T. L. E. 483 61,287 
 
 Holmes v. Clarke, (1861), 6 H. & N. 349 ; 30 L. J. Ex. 135 ; 7 Jur. 
 
 (N. S.) 397 ; 3 L. T. 675 ; 9 W. E. 419 ; affirmed sub nom. 
 
 Clarke «. Holmes, g.i;. 24,25,31 
 
 Holmes v. G. N. Ey. Co., [1900] 2 Q. B. 409; 69 L. J.Q. B. 854; 
 
 83 L. T. 44 ; 48 W. E. 681 ; 64 J. P. 532 ; 16 T. L. E. 412 ; 2 
 
 W. C. C. 19 881,498 
 
 Holmes v. North-Eastern Ey. Co., (1869), L. E. 4 Ex. 254 ; L. E. 6 
 
 Ex. 123 ; 40 L. J. Ex. 121 ; 24 L. T. 69 47,293 
 
 Holmes «. Worthington, (1861), 2 P. & P. 533 30,192,229 
 
 Holness v. Maokay, (1898), 106 L. T. newspaper, 418 ; [1899] 2 Q. B. 
 
 319 ; 68 L. J. Q. B. 724 ; 80 L. T. 831 ; 47 W. E. 531 ; 15 
 
 T. L. E. 351 ; 1 W. 0. C. 13 872,380,881,498 
 
 Hooper v. Holme, (1896), 13 T. L. E. 6 210, 211 
 
 Home V. Widlake, (1609), Yelv. 141 ; 80 Eng. Eep. 95 37 
 
 Hornsey Local Board v. Monarch Investment Building Society, 
 
 (1889), 24 Q. B. D. 1; 59 L. J. Q. B. 105; 61 L. T. 867; 38 • 
 
 W. E. 85; 6T. L. E. 30 347,397 
 
 Horsburgh D. Sheach, (1900), 3 E. 268 ; 38 So. L. E. 197 71,94 
 
 Horwell v. London General Omnibus Co., (1877), 2 Ex. D. 365 ; 46 
 
 L. J. Ex. 700 ; 36 L. T. 637 ; 25 W. E. 610 65 
 
 Houghton V. Sutton Heath Collieries, [1901] 1 K. B. 93 ; 70 L. J. 
 
 K. B. 61; 83 L. T. 472; 49 W. E. 196; 65 J. P. 134; 17 
 
 T. L. E. 54 ; 3 W. C. C. 173 531,532,534 
 
 Houldsworth v. City of Glasgow Bank, (1880), 5 App. Cas. 317 ; 42 
 
 L. T. 194; 28W. E. 677 143 
 
 Howard v. Bennett, (1888), 58 L. J. Q. B. 129 ; 60 L. T. 152 ; 53 
 
 J. P. 359; 5T.L. E. 136 216,217 
 
 Howarth v. Brearley, (1887), 19 Q. B. D. 803 ; 56 L. J. Q. B. 543 ; 
 
 56 L. T. 743 ; 36 W. E. 302 ; 51 J. P. 440 ; 3 T. L. E. 680 ... 678 
 
 Howe V. Pinch, (1885), 17 Q. B. D. 187 ; 34 W. E. 593 ; 51 J. P. 
 
 276 168,187,188 
 
 Howells V. Landore Siemens Steel Co., (1875), L. E. 10 Q. B. 62 ; 44 
 
 L. J. Q. B. 25 ; 32 L. T. 19 ; 23 W. E. 335 4, 14, 413 
 
Table of Cases xlv 
 
 • PAGE 
 
 HoweUs V. Vivian, (1901), 85 L. T. 529 ; 53 W. R. 163 ; 18 T. L. R. 
 
 36; 4W. C. C. 106 471,549 
 
 Howson u. Barrett, (1888), 4 T. L. R. 449 161,177 
 
 Hubball V. Everitt & Sons, Ltd., (1900), 16 T. L. R. 168 ; 5 W. 0. C. 
 
 145 648 
 
 Hughes, Ex parte, (1854), 2 0. L. R. 1542 ; 23 L. J. M. C. 138 ; 18 
 
 Jur. 447 ; 2 W. R. 465 273 
 
 Hughes 11. Blunt, (1884), 5 W. N., N.S.W. 17 260 
 
 Hughes, and Abbott v. Maofie, (1863), 2 H. & C. 744 ; 38 L. J. Ex. 
 
 177;10Jur. (N, S.)682; 12W. R. 315 93 
 
 Hughes «. Maiden, etc.. Gas Light Co., (1897), 168 Mass. 395 ... 187 
 Hughes V. Percival, (1883), 8 App. Gas. 443 ; 52 L. J. Q. B. 719 ; 49 
 
 L. T. 189; 31,W. R. 725; 47 J. P. 772 12 
 
 Hull V. Great Northern Ry. Co. of Ireland, (1890), 26 L. R. Ir. 289 ; 
 
 24Ir. L. T. 101 110,111 
 
 Hunt V. G. N. Ry. Co., [1891] 1 Q. B. 601; 60 L. J. Q. B. 216 ; 64 
 
 L. T. 418 ; 55 J. P. 470 271 
 
 Hunt V. Hunt, (1862), 4 De G. P. & J. 221 ; 31 L. J. Ch. 161 ; 5 
 L. T. 778 ; 10 W. R. 215 ; 8 Jur. (N. S.) 85 ; 45 Eng. Bep. 
 1168 295,429 
 
 Hunter v. Northern Marine Insurance Co., (1888), 13 App. Oas. 717 452 
 
 Hurdman v. N.-E. Ry. Co., (1878), 3 C. P. D. 168 ; 47 L. J. C. P. 
 
 368 ; 38 L. T. 339 ; 26 W. R. 489 66 
 
 Hutchinson v. York, Newcastle & Berwick Ry. Co., (1850), 5 Ex. 
 
 343s 19 L. J. Ex. 296; 5 Rail. Gas. 580 21 
 
 Huxam i;. Thorns, (1882), 72 L. T. newspaper, 227 180 
 
 Huzzey v. Field, (1835), 2 C. M. & R. 432 ; 5 Tyr. 855 ; 1 Gale 166 143 
 
 Hyams v. Webster, (1868), L. R. 4 Q. B. 138; 30 L. J. Q. B. 21; 
 
 17W. R. 232 64 
 
 Hyman v. Nye, (1881), 6 Q. B. D. 685 ; 44 L. T. 919 ; 45 J. P. 554 50 
 
 lies V. Abercam Welsh Flannel Co., (1886), 2 T. L. R. 547 25, 186 
 
 Illidge V. Goodwin, (1831), 5 C. & P. 190 55, 71, 94 
 
 Illingworth v. Walmsley, [1900] 2 Q. B. 142; 69 L. J. Q. B. 519; 
 
 82 L. T. 647 ; 16 T. L. R. 281 ; 2 W. C. C. 118 567, 617 
 
 Imperial Loan Co. v. Stone, [1892], 1 Q. B. 599 ; 61 L. J. Q. B. 449 ; 
 
 66 L. T. 556 ; 56 J. P. 436 ; 8 T. L. R. 408 282 
 
 Imperial Wine Co., In re ; see ShirreH's Case. 
 
 Indermaur v. Dames, (1866), L. R. 1 G. P. 274 ; (1867), L. R. 2 C. P. 
 
 311 ; 36 L. J. G. P. 181 ; 16 L. T. 293 ; 15 W. R. 484 45, 292 
 
 Ingram v. Barnes, (1857), 7 E. & B. 115, 132 ; 26 L. J. Q. B. 82, 
 
 319; 5 W. R. 726 ; 3 Jur. (N. S.) 861 272, 273, 274, 278 
 
 Innes v. Fife Coal Co., (1901), 3 P. 835 ; 38 Sc. L. R. 289 94 
 
 Iron Shipbuilding Works «. Nuttall, (1888), 119 Pa. St. 149 ... 20 
 
 Irons V. Davis & Timmins, Ltd., [1899] 2 Q. B. 330; 68 L. J. Q. B. 
 
 673 ; 80 L. T. 673; 47 W. R. 6X6; 1 W. C. G. 26 ... 562, 563, 564 
 
xlvi Tahle of Cases 
 
 PAGE 
 
 Isaacson & another v. New Grand (Clapham Junction), Ltd., [1903] 
 1 K. B. 539 ; 72 L. J. K. B. 227 ;> 88 L. T. 291 ; 19 T. L. 11. 150 ; 
 5W. G. C. 35 38,279,420,422 
 
 ismay, Imrie & Co. v. "Williamson, [1908] A. C. 437 ; 77 L. J. P. C. 
 
 107 ; 24 T. L. R. 881 353,354,358 
 
 Jackson^. Hill, (1884), 13Q. B. D. 618; 49J. P. 118 271 
 
 James, Ex parte, Condon, In re, (1874), L. B. 9 Ch. 609; 43 L. J. 
 
 Bank. 107 ; 30 L. T. 773 ; 22 W. R. 937 584 
 
 James v. Ocean Coal Co. Ltd., [1904] 2 K. B'. 213 ; 73 L. J. K. B. 
 
 915 ; 90 L. T. 834 ; 52 W. B. 497 ; 68 J. P. 431 ; 20 T. L. R. 483 ; 
 
 6W. C. C. 128 515,566 
 
 James v. Westinghouse Brake Co., (1898), Times newspaper, Ist 
 
 February 25 
 
 Jamieson v. Fife Coal Co., (1903), 5 F. 958; 40 So. L. R. 704; 11 
 
 So. L. T. 183 566 
 
 Jamiesoni;. Russell, (1892), 19 R. 898; 29 Sc.L.B. 790 172 
 
 Janson v. Driefontein Consolidated Mines, [1902] A. C. 484; 71 
 
 L. J. K. B. 857 ; 87 L. T. 372 ; 51 W. B. 142 ; 7 Com. Gas. 268 ; 
 
 18T. L. R. 796 295 
 
 Jeffrey v. "Franconia," (Owners of), 46 L. J. P. 33, see "Fran- 
 
 conia," The. 
 
 Jennings v. Bundall, (1799), 8 T. R. 335 ; 4 R. R. 680 281 
 
 Jenoure v. Delmege, [1891] A. C. 73 ; 60 L. J. P. C. 11 ; 63 L. T. 
 
 814 ; 39 W. R. 388 ; 55 J. P. 500 92 
 
 Jewson V. Gatti, (1886), 2 T. L. R. 441 .'. 94, 97 
 
 John V. Albion Coal Co., Ltd., (1902), 18 T. L. R. 27 ; 65 J. P. 788 ; 
 
 4W. C. C. 15 405 
 
 Johnson, Ex ■parte, Johnson, In re, (1883), 25 Ch. D. 112 ; 53 L. J. 
 
 Ch. 309 ; 50 L. T. 157 ; 32 W. R. 175 596,597 
 
 Johnson v. Adshead, (1901), 109 Law Times newspaper 40 ; 2 
 
 W. C. C. 158 .; 668 
 
 Johnson v. Lindsay, [1891] A. C. 371 ; 61 L. J. Q. B. 90 ; 65 L. T. 
 
 97 ; 40 W. R. 405 ; 55 J. P. 644 ; 7 T. L. R. 715 ... 13, 14, 42, 44, 
 
 276, 380, 482, 483, 484, 692, 702 
 Johnson v. Marshall, [1906] A. C. 409 ; 75 L. J. K. B. 868 ; 94 L. T. 
 
 828; 22T. L. R. 565; 8 W. C. C. 10 409,410,412 
 
 Johnson v. Mitchell, (1885), 22 So. L. R. 698 175 
 
 Johnston v. Great Northern By. Co. of Ireland, (1890), 26 L. B. Ir. 
 
 691 106,110 
 
 Johnston v. G. W. By., [1904] 2 K. B. 250 ; 73 L. J. K. B. 568 ; 91 
 
 L. T. 157 ; 52 W. B. 612 ; 20 T. L. R. 455 113, 291 
 
 Johnston i;. Shaw, (1883), 21 So. L. R. 246 243 
 
 Johnstone v. Sutton, (1786), 1 T. R. 493 ; 1 Bro. P. C. 76 ; 1 R. R. 
 
 257 282 
 
 Jolliffe V. Wallesley Local Board, (1873), L. R. 9 0. P. 62; 43 
 
 L. J. C. P. 41 ; 29 L. T. 582 246 
 
 Jones V. Boyce, (1816), 1 Starkie (N. P.) 493 ; 18 B. R. 812 52, 84, 91 
 
 Jones 1). Burford, (1884), 1 T. L. B. 137 184 
 
 Jones V. Curling, (1884), 13 Q. B. D. 262 ; 53 L. J. Q. B. 373 ; 50 
 
 L. T. 349; 32W. R. 651 654 
 
Table of Cases xlvii 
 
 PAGE 
 
 Jones «. Duck, (1900), The Times newspaper, 16th March 152 
 
 Jones V. Great Central Ey. Co., (1901), 18 T. L. R. 65, 66; 4 
 
 W.C.C.23 ;. 596,663 
 
 Jones V. Livferpool Corporation, (1885), 14 Q. B. D. 890 ; 54 L. J. 
 
 Q. B. 345 ; 33 W. E. 551 ; 49 J. P. 311 ; 1 T. L. B. 389 286 
 
 Jones V. L. & N.-W. Ey. Co., (1902), 4 W. C. C. 140 568 
 
 Jones V. L. & S.-W. Ey. Co., (1901), 3 W. C. C. 46; 111 L. T. news- 
 paper, 210 406 
 
 Jones V. Ocean Coal Co., [1899] 2 Q. B. 124 ; 68 L. J. Q. B. 731 ; 
 
 80 L. T. 582 ; 47 W. E. 484 ; 15 T. L. E. 339 ; 1 W. C. C; 94 523, 524 
 
 Jones V. Ehymney Iron Co., [1902] 1 K. B. 57 ; 71 L. J. K. B. 28 ; 
 85 L. T. 472; 50 W. E. 115; 65 J. P. 804, see Ayres v. 
 Backeridge. 
 
 Jones V. Soullard, [1898] 2 Q. B. 565 ; 67 L. J. Q. B. 895 ; 79 L. T. 
 
 386 ; 47 W. R. 303 ; 14 T. L. E. 580 45, 140, 146 
 
 Joseph ?j. Whitney Co., (1900), 177 Mass. 176 207 
 
 Joyce «. Capel, (1838), 8 C. & P. 370 ... 144 
 
 Judge V. Selmes ; see Selmes v. Judge. 
 
 Julius V. Bishop of Oxford, (1880), 5 App. Cas. 214 ; 49 L. J. Q. B. 
 
 577 ; 42 L. T. 546; 28 W. E. 726 ; 44 J. P. 600 589, 654 
 
 Kane v. Singer Manufacturing Co., (1904), 6 P. 658 ; 41 So. L. E. 571 259 
 Kearney v. London, Brighton and South Coast Ey. Co., (1870), 
 
 L. E. 5 Q. B. 411 ; (1871), L. E. 6 Q. B. 759 ; 40 L. J. Q. B. 
 
 285 ; 24 L. T. 913 ; 20 W. E. 24 77 
 
 Kearney v. NiohoUs, (1883), 76 Law Times newspaper, 63 ... 201, 207 
 
 Keast V. Barrow Haematite Steel Co., (1899), 63 J. P. 56 ; 15 T. L. E. 
 
 141 ; 1 W. C. C. 99 392,522 
 
 Keeble «. Bast and West India Docks, (1889), 5 T. L. E. 312 ... 293 
 Keen v. MillwaU Dock Co., (1882), 8 Q. B. D. 482 ; 51 L. J. Q. B. 
 
 277 ; 46 L. T. 472 ; 30 W. E. 503 ; 46 J. P. 435 244, 261 
 
 Keenan v. Plemington Coal Co., (1902), 5 F. 164 ; 40 So. L. E. 144 ; 
 
 lOSo. L. T. 409 388 
 
 Kehler v. Schwenk, (1891), 144 Pa. St. 348 ; 27 Am. St. E. 633 ... 93 
 
 Keighley, Maxstead & Co., In re, [1893] 1 Q. B. 405 ; 62 L. J. Q. B. 
 
 105 ; 68 L. T. 61 ; 41 W. B. 437 ; 4 E. 136 ; 7 Asp. M. C. 268 ; 
 
 . 9T. L. E. 107 629 
 
 KeUard v. Rooke (1888), 21 Q. B. D. 367; 57 L. J. Q. B. 599; 36 
 
 W. R. 875 ; 52 J. P. 820 ; 4 T. L. R. 709 135, 197, 198, 200, 
 
 206, 208, 269 
 Kelly V. Arrol & Co., Ltd., (1902), 7 F. 906; 42 So. L. E. 695; 13 
 
 Sc. L. T. 264 472 
 
 Kelly V. Glebe Sugar Eefining Co., (1893), 20 E. 833 ; 30 Sc. L. E. 
 
 758 24,39,181 
 
 Kelly i). Hopkins, [1908] 2 I. E. 84 466 
 
 Kemp V. Bahie, (1844), 1 Dowl. & L. 855 ; 13 L. J. Q. B. 149 ; 8 Jur. 
 
 619 258 
 
 Kendall v. L. & S.-W. Ey. Co., (1872), L. B. 7 Ex. 373 ; 41 L..J. Ex. 
 
 184; 26L. T.735; 20W. E. 886 75 
 
 Kent «. Porter, (1901), 38 Sc. L. E. 482 498 
 
xlviii Table of Gases 
 
 PAGE 
 
 Kent County Council v. Folkstone Corporation, [1905], 1 K. B. 620 ; 
 
 74 L. J. K. B. 352 ; 92 L. T. 309 ; 53 W. E. 371 ; 69 J. P. 125 ; 
 
 3L. G. K. 438; 21T. L. R. 269 246 
 
 Kent County Council v. Gerard, (Lord), see Gerard (Lord) v. Kent 
 
 C. C. 
 
 KettleweU ?j. Paterson, (1886), 24 Sc. L. R. 95 169,205,218 
 
 Kiddle «. Lovett, (1885), 16 Q. B. D. 605 ; 34 W. R. 518 169 
 
 Kilpatriok v. Wemyss Coal Co., Ltd., [1907] S. C. 320 ; 44 So. L. R. 
 
 255 ... 610,614 
 
 King V. Henkie, (1886), 60 Am. R. 119 266 
 
 King, The v. Dixon, (1814), 3 M. & S. 11 ; 4 Camp. 12 ; 15 R. R. 381 155 
 
 King, The v. Hampden, (1637), 3 How. St. Tr. 825 295 
 
 King, The v. Haslingfield, (1814), 2 M. & S. 558 ; 15 R. R. 350 ... 73 
 
 Kingston's, Duchess of. Case, (1776), 20 How. St. Tr. 537 ; 1 Leach, 
 
 0. C. 146 ; 2 Sm. L. C. (11th ed.) 731 417 
 
 Knight V. Cubitt, [1902] 1 K. B. 31 ; 71 L. J. K. B. 65 ; 85 L. T. 
 
 526; 50 W. R. 113; 66 J. P. 52 ; 18T. L. R. 26; 4 W. C. C. 
 
 42 490,491 
 
 Knight V. North Metropolitan Tramways Co., (1898), 14 T. L. R. 
 
 286 ; 78 L. T. 227 153 
 
 Kniveton v. Northern Employers Mutual Indemnity Co., [1902] 
 
 1 K. B. 880 ; 71 L. J. K. B. 588 ; 86 L. T. 721 ; 50 W. R. 704 ; 
 
 4 W. C. C. 37 ; sub nom. N. E. M. I. Co. v. Kniveton, 18 T. L. R. 
 
 504 585,689 
 
 Korten u. West Sussex County Council, (1903), 19 T. L. R. 354 ... 156 
 
 Lamb v. G. N. Ry. Co., [1891] 2 Q. B. 281 ; 60 L. J. Q. B. 489 ; 65 
 
 L. T. 225 ; 39 W. R. 475 ; 56 J. P. 22 ; 7 T. L. R. 415 271 
 
 Lamley u. East Retford Corporation, (1891), 55 J. P. 133 261 
 
 Lampleigh v. Brathwait, (1615), 1 Sm. L. C. (11th ed.) 141 ; Hob. 
 
 105 ; Moore 866 ; Brownl. & Gold. 7 ; 80 Eng. Rep. 255 ... 697 
 
 Lampman v. Gainsborough, (1888), 17 Out. R. 191 108 
 
 Lancashire Insurance Co. v. Commissioners of Inland Revenue, 
 
 [1899] 1 Q. B. 353 ; 68 L. J. Q. B. 143 ; 79 L. T. 131 ; 47 W. R. 
 
 396; 63 J. P. 21; 15T. L. R. 119 590 
 
 Lane v. Cotton, (1701), 1 Lord Raym. 646 ; 1 Salk. 17 ; 12 Mod. 489. . . 288 
 Langmead v. Maple, (1865), 18 C. B. N. S. 255 ; 11 Jur. (N. S.) 177 ; 
 
 12 L. T. 143 ; 13 W. B. 469 ... 256 
 
 Larbey i;. Greenwood, (1885), Times, 23rd July 255 
 
 Laugher v. Pointer, (1826), 5 B. & C. 547 ; 4 L. J. (0. S.) K. B. 309 ; 
 
 8 D. & R. 550 ; 29 R. R. 319 142 
 
 Lawler v. Linden, (1876), Ir. R. 10 C. L. 188 ; 10 Ir. L. T. 86 ... 267 
 Lawrence v. Accident Insurance Co., (1881), 7 Q. B. D. 216 • 50 L J 
 
 Q. B. 522; 45L. T. 29; 29W. R. 802; 45 J. P. 781 .' 16 
 
 Lawrence v. Todd, (1863), 14 0. B. N. S. 554 ; 32 L. J. M. C. 238 ■ 
 
 8L. T. 505; IIW. R. 835; lOJur. (N. S.)179 276 
 
 Lawrie v. James Brown & Co., Ltd., [1908] S. C. 705 ; 45 So. L. R 
 
 477 664 
 
 Lax V. Darlington Corporation, (1879), 5 Ex. D. 28 ; 49 L J Ex 
 
 105 ; 41 L. T. 489 ; 28 W. R. 221 ; 44 J. P. 312 '. ' ..'. 87 
 
Table of Cases xlix 
 
 PAGE 
 
 Lay V. Midland Ry. Co., (1874), 30 L. T. 529 ; (1875), 34 L. T. 30 ... 77, 93 
 Ledward v. Hassells, (1856), 2 K. & J. 370 ; 25 L. J. Ch. 311 ; 2 Jur 
 
 (N. S.) 277 ; 4 W. R. 315 ; 69 Eng. Eep. 825 592 
 
 Ledwidge D. Hattaway, (1898), 170 Mass. 348 245 
 
 Lee V. Cortonwood Collieries, (1902), 4 W. 0. C. 32 611 
 
 Lee V. Lancashire and Yorkshire Ry. Co., (1870), L. R. 6 Ch. 527 • 
 
 25L. T. 77; 19W. R. 729 117 
 
 Lee T. W. Baird & Co., Ltd., (1908), 45 So. L. R. 717 561 
 
 Leech v. Gartside, (1885), 1 T. L. R. 391 270, 276 
 
 Leech v. Life and Health Assurance Association, [1901] 1 K. B. 707 ; 
 70 L. J. K. B. 544 ; 84 L. T. 414 ; 49 W. R. 482 ; 17 T. L. R. 
 
 354; 3 W. CO. 202 ...586,590,689 
 
 Leggett & Sons v. Burke, (1902), 4 P. 693 ; 39 So. L. E. 448 ; 9 So. 
 
 L.T.518 472,549 
 
 Leggott V. G. N. Ry. Co., (1876), 1 Q. B. D. 599 ; 45 L. J. Q. B. 557 ; 
 
 35 L. T. 334 ; 24 W. R. 784 H5 
 
 Le Lievre v. Gould, [1893] 1 Q. B. 491 ; 62 L. J. Q. B. 353 ; 68 L. T. 
 
 626 ; 41 W. R. 468 ; 57 J. P. 484 ; 4 R. 274 57, 58, 81 
 
 Leman v. Houseley, (1874), L. R. 10 Q. B. 66 ; 44 L. J. Q. B. 22 ; 
 
 31L. T. 833; 23 W. R. 235 , 678 
 
 Lendon v. London Road-Car Co., (1887), 4 T. L. R. 488 115 
 
 Leonard v. WiUiam Baird & Co., (1901), 3 F. 891 ; 38 Sc. L. R. 
 
 649 520,529 
 
 Leslie Maruo v. Workman, Clark & Co., Ltd., (No. 1), (1899), 38 
 
 Ir. L. T. 183 ; (No. 2), (1899), 34 Ir. L. T. R. 14 ... 612, 668 
 
 Levering v. St. Katherine Dock Co., (1887), 3 T. L. R. 607 ... 200, 288 
 
 Lewis V. G. W. Ry. Co., (1877), 3 Q. B. D. 195 ; 47 L. J. Q. B. 131 ; 
 
 37 L. T. 774 ; 26 W. R. 255 395,396,397 
 
 Lightly V. Clouston, (1808), 1 Taunt. 112; 9 R. R. 718 101 
 
 Lilley v. Elwin, (1848), 11 Q. B. 742 ; 17 L. J. Q. B. 132 ; 12 Jur. 623 273 
 ' Limpus V. London General Omnibus Co., (1862), 1 H. & C. 526 ; 
 32 L. J. Ex. 34; 7 L. T. 641; 11 W. R. 149; 9 Jur. (N. S.) 
 
 333 4,10,13,142,143,146,414 
 
 Lindsay v. M'Glashen & Son, Ltd., [1908] S. C. 762 ; 45 Sc. L. R. 559 464 
 
 Linklater «. Webster, (1904), 6 W. 0. C. 50 618 
 
 Little V. McLeUan, (1900), 2 P. 887 ; 37 Sc. L. R. 287 ; 7 Sc. L. T. 313 424 
 Little V. Neilson (Summerlee Iron and Coal Co.), (1855), 17 Dunlop 
 
 310 ; 27 Sc. Jur. 135 46,47 
 
 Lloyd V. General Iron Screw Collier Co., (1864), 3 H. & C. 284 ; 33 
 
 L. J. Ex. 269 ; 10 Jur. (N. S.) 661 ; 10 L. T. 586 ; 12 W. R. 882 16 
 
 Lloyd 1;. Ogleby, (1859), 5 C. B. N. S. 667 58 
 
 Lloyd V. Woolland Brothers, (1902), Times newspaper, 7th November 33 
 
 Loader v. London and East and West India Docks Joint Committee, 
 
 (1891), 65 L. T. 674 ; 56 J.-P. 165 ; 8 T. L. R. 5 53, 81, 172 
 
 Lobb V. Amos, (1886), 7 N. S. W. R. (Law) 93 279, 280, 289 
 
 Loohgelly Iron and Coal Co. v. Sinclair, [1907] S. 0. 3 ; 44 Sc. L. R. 
 
 750 667 
 
 Logue V. PuUerton, Hodgart & Barclay, (1901), 3 P. 1006 ; 38 Sc. 
 
 L. E. 738 ; 9 Sc. L. T. 152 373,385,402 
 
 London and Edinburgh Shipping Co. v. Brown, (1905), 7 P. 488 ; 42 
 
 Sc. L. R. 357 ; 12 So. L. T. 694, 760 377 
 
1 Table of Cases 
 
 PAGE 
 
 London and Glasgow Engineering Co. v. Falconer, (1901), 38 So. 
 
 L. R. 381, see Falconer v. London, &o., Engineering Co. 
 London, Mayor of, and Tubbs Contract, In re, [1894] 2 Oh. 524 ; 63 
 
 L. J. Ch. 580 ; 70 L. T. 719 ; 7 R. 265 ; 10 T. L. B. 481 ... 396 
 
 London Tilbury & Southend By. Co. and Trustees of Gowers Walk 
 
 Schools, In re, (1889), 24 Q. B. D. 326; 59 L. J. Q. B. 162 ; 62 
 
 L. T. 306; 38W. B. 343; 6T. L. B. 120 69 
 
 " Longford," The, (1889), 14 P. D. 34 ; 58 L. J. P. 38 ; 60 L. T. 373 ; 
 
 37 W.B. 372; 6 Asp. M. 0.371 246 
 
 Longmore v. G. W. By. Co., (1865), 19 C. B. N. S. 183 ; 35 L. J. 
 
 C. P. 135 172 
 
 Lord Advocate and Trustees of the Clyde Navigation Co. v. Blantyre 
 
 (Lord), (1879), 4 App. Cas. 770 78 
 
 Losh v. Eichard Evans & Co., Ltd., (1902), 51 W. B. 243 ; 19 T. L. E. 
 
 142 ; 5 W. 0. 0. 17 386 
 
 Lovegrove v. London, Brighton & South Coast By. Co., (1864), 16 
 
 0. B. N. S. 669 ; 33 L. J. C. P. 329 ; 10 L. T. 718 ; 12 W. R. 
 
 988 ; 10 Jur. (N. S.) 879 78 
 
 Lovell «. Charrington, (1882), 72 L. T. newspaper, 356 138 
 
 Lovell & Christmas v. Beauohamp, [1894] A. 0. 607 ; 63 L. J. Q. B. 
 
 802 ; 71 L. T. 587 ; 43 W. B. 129 ; 1 Mans. 467 ; 11 R. 45 ... 282 
 Lovell V. Howell, (1875), 1 C. P. D. 161 ; 45 L. J. 0. P. 387 ; 34 
 
 L. T. 183 ; 24 W. B. 672 21 
 
 Low V. Barchard, (1803), 8 Ves. 133 ; 7 B. B. 4 ; 32 Eng. Eep. 303 114 
 Lowe V. Myers & Son, [1906] 2 K. B. 265; 75 L. J. K. B. 651 ; 95 
 
 L. T. 35 ; 22 T. L. B. 614 ; 8 W. 0. 0. 22 599, 610, 683 
 
 Lowe V. Pearson, [1899] 1 Q. B. 261 ; 68 L. J. Q. B. 122 ; 79 L. T. 
 
 654 ; 47 W. B. 193 ; 15 T. L. B. 124 ; 1 W. 0. 0. 5 374, 375, 377, 386 
 Lowth V. Ibbotson, [1899] 1 Q. B. 1003 ; 68 L. J. Q. B. 465 ; 80 L. T. 
 
 341 ; 47 W. B. 506 ; 15 T. L. E. 264 ; 1 W. 0. 0. 46 ... 496, 497 
 Lovfther v. Bentinck, (1874), L. B. 19 Eq. 166 ; 44 L. J. Ch. 197 ; 31 
 
 L. T. 719; 23 W. B. 156 443 
 
 Lowther v. Eadnor (Earl), (1806), 8 East 113 ; 20 E. E. 542 n. 272, 274 
 
 Lowry u. Shefaeld Coal Co., (1907), 24 T. L. E. 142 384 
 
 Lunnie v. Glasgow & S. W. By. Co., (1906), 8 F. 546; 43 So. L. E. 
 
 372 46 
 
 Lygo V. Newbold, (1854), 9 Ex. 302 ; 23 L. J. Ex. 108 ; 2 C. L. E. 
 
 449;2W.E.158 93 
 
 Lyles V. Southend-on-Sea Corporation, [1905] 2 K. B. 1 ; 74 L. J. 
 
 K. B. 484 ; 92 L. T. 586 ; 69 J. P. 193 ; 3 L. G. B. 691 ; 21 
 
 T. L.B. 389 246 
 
 Lynch r. AUyn, (1893), 160 Mass. 248 168 
 
 Lynch v. Nurdin, (1841), 1 Q. B. 29 ; 10 L. J. Q. B. 73 ; 4 P. & D. 
 
 672;5Jur.797 41,93 
 
 Lysons v. Kno-wles, [1901] A. C. 79 ; 70 L. J. K. B, 170 ; 84 L. T. 
 
 65 ; 49 W. B. 636 ; 65 J. P. 388 ; 17 T. L. R. 156 ; 3 W. C. C. 1 520, 526 
 
 McAdam «. Harvey, [1903] 2 I. R. 511 ; 36 Ir. L. T. 89 388 
 
 M' Allan v. Perthshire 0. 0. Western District, (1906), 8 P 783 • 43 
 
 Sc. L. R. 592 ; 14 So. L. T. 36 ... ... "... 388 
 
Table of Cases li 
 
 PAGB 
 
 M' Arthur v. Dominion Cartridge Co., [1905] A. C. 72 ; 74 L. J. P. 0. 
 
 30; 91L. T. 698; 53W. E. 305; 21T. L. R. 47 78 
 
 M'Avan v. Boase Spinning Co., Ltd., (1901), 3 P. 1048 ; 38 Sc. L. R. 
 
 772 ; 9 So. L. T. 152 682,686,687 
 
 M'Avoy V. Young's Paraffin Light and Mineral Oil Co., (1881), 9 
 
 R. 100 ; 19 So. L. R. 61 134,137,253 
 
 MoCahe i). Guinness, (1875), Ir. R. 9 G. L. 510 106 
 
 M'Cabe «. Shields, (1900), 175 Mass. 438 206 
 
 M'Callum v. North British Ry. Co., (1893), 20 R. 385 ; 80 So. L. R. 
 
 427 44 
 
 McCarthy v. British Shipownejs' Co., (1883), 10 L. R. Ir. 384 ; 17 
 
 Ir. L. T. 21 172 
 
 M'Carthy J). Jacob & Nicholson, (not reported) 281 
 
 M'Cloherty v. Gale Manufacturing Co., (1892), 19 Ont. App. 117 159, 180 
 McCordB. Oammell & Co., [1896] A. C. 57 ; 65 L. J. Q. B. 202 ; 78 
 
 L. T. 634; 60 J. P. 180; 12T. L. R. 98 234,235,236 
 
 M'Cready v. Dunlop, (1900), 37 Sc. L. R. 779, see Dunlop v. M'Cready. 
 M'Donagh v. MacClellan, (1886), 13 R. 1000 ; 23 Sc. L. R. 717 117, 243 
 McDonald v. Owners of S. S. " Banana," [1908] 2 K. B. 926 ; 24 
 
 T. L. R. 887 370 
 
 Maodonald v. Udstone Coal Co., Ltd;, (1896), 23 R. 504 : 38 So. L. R. 
 
 351 ; 3 Sc. L. T. 281 23 
 
 Maodonald v. WyUie, (1898), 1 F. 339 ; 36 Sc. L. R. 262 169 
 
 MoDowall V. G. W. Ry., [1908] 2 K. B. 331 ; 72 L. J. K. B. 652 ; 88 
 
 L. T. 825 ; 19 T. L. R. 552 71 
 
 M'Fayden v. DalmeUington Iron Co., (1897), 24 R. 327 ; 34 Sc. L. R. 
 
 266; 4 So. L.T. 245 245 
 
 Maofarlane v. Thompson, (1884), 12 R. 232 ; 22 Sc. L. R. 178 161, 179 
 
 MoGiffin V. Palmer's Shipbuilding Co., (1882), 10 Q. B. D. 5 ; 52 
 
 L. J. Q. B. 25 ; 47 L. T. 846 ; 31 W. R. 118 ; 47 J. P. 70 ... 185, 
 
 162, 163, 165, 170 
 
 M'Govan v. Tanored, (1886), 13 R. 1033 ; 23 Sc. L. R. 737 262 
 
 M'Govern v. Cooper, (1901), 4 P. 249, see Cooper v. M'Govern. 
 M'Groarty v. John Brown & Co., (1906), 8 P. 809 ; 43 Sc. L. R. 598 ; 
 
 14Sc. L. T. 66 407 
 
 McGregor v. Dansken, (1899), 1 P. 536 ; 36 Sc. L. R. 393 ... 443, 447, 493 
 MacGregor v. Kelly, (1849), 3 Ex. 794 ; 6 D. & L. 635i; 18 L. J. Ex. 
 
 391 265 
 
 M'Gregor r. Ross, (1883), 10 R. 725 ; 20 Sc. L. R. 462 93,95 
 
 M'Harg v. Campbell, (1767), (So.), Mor. 12541 107 
 
 Mcintosh V. Stewart, (1900), 19 N. Z. L. R. 152 176 
 
 M'Intyre v. A. Rodger & Co., (1903), 6 P. 176; 41 Sc. L. R. 107; 
 
 llSc. L. T. 467 378 
 
 M'Inulty V. Primrose, (1897), 24 R. 442 ; 34 Sc. L. R. 334 ; 4 Sc. L. T. 
 
 286 45,172 
 
 Mackay v. Commercial Bank of New Brunswick, (1874), L. R. 5 P. 
 
 C. 394 ; 48 L. J. P. C. 81 ; 30 L. T. 180 ; 22 W. R. 473 ... 143 
 
 Mackay v. Rosie, [1908] S. 0. 174 ; 45 So. L. R. 178 426 
 
 Mackay v. Watson, (1897), 24 R. 383 ; 34 So. L. R. 314 186 
 
 Mackenzie v. Coltneas Iron Co., (1903), 6 P. 8 ; 41 Sc. L. R. 6 ; 11 
 
 So. L.T. 350 384 
 
lii 
 
 Table of Cases 
 
 PAGE 
 
 91 
 
 M'lLeolinie v. Couper, (1887), 14 B. 345 ; 24 So. L. E. 252 
 
 M'Kennat). United CoUierieg, Ltd., (1906), 8 F. 969; 43 So. L. B. 
 
 718 658 
 
 MoKelvin ii. " The City of London," (1892), 22 Ont. B. 70 53 
 
 Maokle v. Straohan, Kimnond & Co., (1896), 23 E. 1030 ; 33 So. L. E. 
 
 764 : 118 
 
 M'KiUop V. North British By. Co., (1896), 23 B. 770; 33 So. L. B. 
 
 586 ; 3 So. L. E. 25 23 
 
 MoKinnon v. Barclay, see Osborne v. Barclay. 
 
 McLean v. Carse & Holmes, (1899), 1 P. 878 ; 36 So. L. B. 678 ; 7 
 
 So. L. T. 26 605 
 
 , McLean t;. Cole, (1899), 175 Mass. 5 186 
 
 M'Laohlan v. Steamship " Peveril " Co., Ltd., (1896), 23 B. 753 ; 33 
 
 So. L. B. 634 ; 4 So. L. T. 19 58,182,185 
 
 M'Laughlin v. Clayton, (1899), 1 W. C. 0. 116 ; Times newspaper, 
 
 28th February 649 
 
 M'Leod V. Pine, (1893), 20 B. 381 243, 259, 267 
 
 McMahou v. Field, (1881), 7 Q. B. D. 591 ; 50 L. J. Q. B. 552 ; 45 
 
 L. T. 381 ; 46 J. P. 245 87 
 
 McMahon «. McHale, (1899), 174 Mass. 320 
 
 M'Manus v. Crickett, (1800), 1 East 106; 5 B. B. 518 
 
 M'Manus v. Hay, (1882), 9 B. 425 ; 19 So. L. E. 345 186, 203, 208, 
 M'Millan «. Barclay, Curie & Co., Ltd., (1899), 2 F. 91 ; 37 So. L. B, 
 
 61 
 
 McMullen v. Newhouse Coal Co., (1896), 23 B. 759 ; 33 So. L. E. 598 
 
 4Sc. L. T. 34 
 
 M'Neill V. Kinneil Cannel and Coking Coal Co., Ltd., (1898), 25 E, 
 
 962; 35Sc. L. B. 768 
 
 McNicholas v. Dawson & Son, [1899] 1 Q. B. 773 ; 68 L. J. Q. B. 470 
 
 80 L. T. 317 ; 47 W. E. 500 ; 15 T. L. E. 242 ; 1 W. 0. C. 80 
 M'Niool V. Spiers, Gibb & Co., (1899), 1 F. 604 ; 36 So. L. E. 428 
 
 6So. L. T.353 
 
 M'Quade v. Dixon, (1887), 14 E. 1039; 24 Sc. L. B. 727 
 
 MoQuibban v. Menzies, (1900), 2 F. 732 ; 37 Sc. L. B. 526 ; 7 Sc. L. T 
 
 432 
 
 Magee v. DalgUsh, Falconer & Co., (1884), 11 B. 857 ; 21 Sc L. B 
 
 569 
 
 171 
 
 150 
 
 209, 212 
 
 500 
 
 171 
 
 21 
 
 369, 373 
 
 411 
 163 
 
 889 
 
 254 
 
 258 
 
 91 
 
 Magee v. Martin, (1882), 16 Ir. L. T. 5 
 
 Maguire v. Middlesex Eailroad Co., (1874), 115 Mass. 239 ... 
 Main Colliery Co. v. Davies, [1900] A. 0. 358 ; 69 L. J. Q. B 755 • 
 
 83 L. T. 83 ; 65 J. P. 20 ; 16 T. L. E. 460 ; 2 W. 0. C. 108' 463, 466 
 
 468, 470, 471, 549 
 Manby u. Scott, (1659), 1 Lev. 4 ; 1 Mod. 124 ; 1 Sid. 109 ; 2 Sm. L C. 
 
 (11th ed.) 446 ; 88 Eng. Bep. 268 ; 86 i6. 781 467 
 
 Manchester v. Carlton Iron Co., Ltd., (1904), 89 L. T. 730 • 52 W E 
 
 291 ; 68 J. P. 209 ; 20 T. L. B. 155 ... \,\ 530 
 
 Mangan v. Atterton, (1866), L. E. 1 Ex. 239 ; 4 H. & 888 ■ 35 
 
 L. J. Ex. 161 ; 14 L. T. 411 ; 14 W. B. 711 ' 41,93,94 
 
 Mann v. Ward, (1892), 8 T. L. B. 699 55'^ 55' 93 
 
 Manzoni v. Douglas, (1880), 6 Q. B. D. 145 ; 50 L. J. O. B 289 • 29 
 
 W. E. 425 ; 45 J. P. 391 ... 51,72,7376 
 
Table of Gases liii 
 
 PAGE 
 
 Mardorf and Aooideat Assuranoe Co., In re, [1903] 1 K. B. 584 ; 72 
 
 L. J. K. B. 362; 83L. T. 330; 19T. L. R. 274 56 
 
 Markey v. Tolworth Joint Hospital District Board, [1900] 2 Q. B. 
 
 454 ; 69 L. J, Q. B. 738 ; 83 L. T. 28 ; 64 J. P. 647 ; 16 T. L. R. 
 
 411 106,246,247 
 
 Markham v. Stanford, (1863), 14 0. B. N. S. 376 ; 8 L. T. 277 ... 295 
 
 Marley v. OsborUj (1894), 10 T. L. R. 388 209, 218 
 
 Marney v. Soott, [1899] 1 Q. B. 986 ; 68 L. J. Q. B. 736 ; 47 W. R. 
 
 666 ; 15 T. L. R. 320 26,53,54,184 
 
 Marno v. Workman (No. 1), (1899), 33 Ir. L. T. 183 ; (No. 2), (1899), 
 
 34Ir.I]. T. 14 612,668 
 
 " Marpesia," The, (1872), L. R. 4 P. C. 212 ; 8 Moore, P. C. (N. S.) 
 
 468 ; 26 L. T. 333 16 
 
 Marrow v. Mimby & Broughton Moor Coal and Fire Brick Com- 
 pany, Ltd., [1898] 1 Q. B. 588 ; 67 L. J. Q. B. 976 ; 79 L. T. 397 ; 
 
 14 T. L. R. 583 217, 255, 276, 281, 398 
 
 MarshaU v. East HolyweU Goal Co., (1904), 93 L. T. 360 ; 21 T. L. R. 
 
 494 ; 7 W. C. C. 19 349 
 
 Martin v. Baltimore Railroad Co., (1894), 151 U. S. (44 Davis) 673 266 
 
 Martin v. Connah's Quay Alkali Co., (1884), 33 W. R. 216 ... 186, 213 
 
 Martin ii. Midland Ry. Co., 9 T. L. R. 514, see Midland Ry. Co, v. 
 
 Martin. 
 Martin v. Temperley, (1843), 4 Q. B. 298 ; 12 L. J. Q. B. 129 ; 3 G. & 
 
 D. 497 ; 7 Jut. 150 139,285,288 
 
 Martin v. Wards, (1887), 14 R. 814 ; 24 So. L. R. 586 92, 97 
 
 Mason v. Bertram, (1889), 18 Ont. R. 1 112 
 
 Mason v. Dean, [1900] 1 Q. B. 770 ; 69 L. J. Q. B. 358 ; 82 L. T. 139 ; 
 
 48 W.. R. 353 ; 64 J. P. 244 ; 16 T. L. R. 212 493 
 
 Mason i;. Langford, (1888), 4 T. L. B. 407 292 
 
 Masters u. Jones, (1894), 10 T. L. R. 408 140,255 
 
 Matthews v. Bedworth Brick and Tile Co., (1899), 1 W. C. C. 124 ; 
 
 106 Law Times newspaper, 485 , 376 
 
 Maver«. Park, (1905), 8P. 250; 43 So. L. R. 191 614 
 
 Maxim Nordenfelt Guns &, Ammunition Co. v. Nordonfelt, [1893] 
 
 1 Ch,.630 ; 2 R. 538 ; 62 L. J. Ch. 749 ; 69 L. T. 471 ; 42 W. R. 
 
 38 ; 9 T. L. R. 150, aff. in H. L. suh nom. Nordenfelt v. Maxim, 
 
 &c., Co., g.u 295 
 
 Maxwell v. Wolesley, (Viscount), [1907] 1 K. B. 274; 76 L. J. 
 
 K. B. 163 ; 96 L. T. 4 ; 23 T. L. B. 157 102 
 
 May V. Burdett, (1846), 9 Q. B. 101 ; 16 L. J. Q. B. 64 ; 10 Jur. 692 51 
 
 May«. Chapman, (1847), 16 M. & W. 355 195 
 
 Maynard v. Peter Robinson, (1903), 89 L. T. 136 ; 19 T. L. R. 492 272 
 
 Medwayir. Greenwich Inlaid Linoleum Co., Ltd., (1898), 14 T. L. R. 
 
 ,, 291 33,193,202,210 
 
 Mellors v. Shawj (1861), 1 B. & S. 437 ; 30 L. J. Q. B. 338 ; 7 Jur. 
 
 (N. SO 845 ; 9 W. B. 748 .., 22 
 
 Membery v. G. W. Ry. Co., (1889), 14 App. Gas. 179 ; 58 L. J. Q. B. 
 . 563 ; 61 L. T. 566 ; 38 W. R. 145 ; 54 J. P. 244 ; 5' T. L. R. 468 6, 20 
 Menzies 1). M'Quibban (1900), 2 P. 732, see M'Quibban v. Menzies. 
 Merry v. NickaUs, (1873), L. R. 8 Ch. 205 ; 42 L. J. Ch. 479 ; 28 
 
 L. T. 296; 21 W. R.305 ... 106 
 
 B.E.L. 
 
liv • Table of Gases 
 
 PAGE 
 
 Merryweather v. Nixan, (1799), 1 Sm. L. 0. (11th ed.) 398 ; 8 T. K. 
 
 186 ; 16 R. R. 810 65,154,696 
 
 Metoalf 11. Great Boulder Proprietary Gold Mines, (1906), 3 C. L. B. 
 
 (Australia), 5i3 166 
 
 Metropolitan By. Co, v. Jackson, (1877), 3 App. Oas. 193 ; 47 L. J. 
 
 0. P. 303 ; 87 L. T. 679 ; 26 W. B. 175 63, 71, 82, 288, 404 
 
 Meux V. G. B. By. Co., [1895] 2 Q. B. 387 ; 64 li. J. Q. B. 657 ; 78 
 
 L. T. 247 ; 48 W. B. 680 ; 59 J. P. 662 ; 14 R. 620 ; 11 T. L. R. 
 
 517 4,96,416 
 
 Middlemiss v. Berwickshire County Council, (1900), 2 F. 392 ; 37 
 
 Sc. L. R. 297 ; 7 So. L. T. 230 499 
 
 Midland Couuties District Bank, Ltd. v. Attwood, [1905] 1 Ch. 357 ; 
 
 74 L. J. Ch. 286; 92 L. T. 860; 12 Manson, 20; 21 T. L. B. 
 
 175 11 
 
 Midland By. Co. v. Martin, [1893] 2 Q. B. 172 ; 62 L. J. Q. B. 517 ; 
 
 69 L. T. 353; 58 J. P. 39; 17 Cox C. C. 687; 5 B. 489; 9 
 
 T. L. B. 514 254 
 
 Midland By. Co. v. Sharpe, [1904] A. 0. 349; 73 L. J. K. B. 666; 
 
 91 L. T. 181 ; 53 W. B. 114; 20 T. L. B. 546; 6 W. C. C. 119 
 
 532, 533 
 
 Midwood V. Manchester Corporation, [1905] 2 K. B. 597 ; 74 L. J. 
 
 K. B. 884; 93L.T.525; 54W. B.37; 69 J. P. 348; 21 T. L. B. 
 
 667 ; 3 L. G. B. 1136 75 
 
 Migotti V. Colville, (1879), 4 C. P. D. 233 ; 48 L. J. C. P. 695; 40 
 
 L. T. 747; 27 W. B. 744; 14CoxC. C. 305 368 
 
 Mildred v. Maspons, (1883), 8 App. Cas. 874 ; 53 L. J. Q. B. 33 ; 49 
 
 L. T. 685 ; 32 W. B. 125 ; 5 Asp. M. C. 182 195 
 
 MUford Docks Co. v. MUford Haven U. D. C, (1901), 65 J. P. 488 246 
 
 MiUigan 1J. Muir, (1891), 19 B. 18 ; 29 Sc. L. R. 36 178 
 
 MiUer v. Dalgety, (1884), 1 W. N. 164 ; 2 W. N. 17 (N.S.W.) ... 245 
 Mills V. Armstrong (" The Bernina "), (1888), 18 App. Cas. 1 ; 57 
 
 L. J. P. 65; 58 L. T. 423; 36 W. B. 870; 52 J. P. 212; 4 
 
 T. L. B. 360; 6 Asp. M. C. 257 ... 65, 85, 88, 97, 98 
 
 MiUward v. Midland By. Co., (1884), 14 Q. B. D. 68 ; 54 L. J. Q. B. 
 
 202 ; 52 L. T. 255 ; 33 W. E. 366 ; 49 J. P. 453 209, 219 
 
 Milne v. Townsend, (1892), 19 B. 830; 29 Sc. L. B. 747 29, 177 
 
 Milner v. G. N. Ey., [1900] 1 Q. B. 795 ; 69 L. J. Q. B. 427; 82 
 
 L. T. 187 ; 48 W. R. 887 ; 64 J. P. 291 ; 16 T. L. B. 249 ; 2 
 
 W. C. C. 51 495,502,503 
 
 Missouri Steamship Co., In re, (1888), 42 Ch. D. 321 ; 58 L J Ch 
 721 ; 61 L. T. 316 ; 37 W. B. 696 ; 6 Asp. M. C. 423 ; 5 T. L. b' 
 i38 ; 479 
 
 Mitchell & Izard and Governor of Ceylon, In re, (1888), 21 O B D 
 
 408 ; 57 L. J. Q. B. 524 ; 59 L. T. 812 ; 36 W. B. 878 .„" ' ..." 641 
 MitcheU v. Coats Iron and Steel Co., (1885), 23 Sc. L. B. 108 ... 163 
 Mitchell V. Crassweller, (1858), 13 0. B. 237 ; 22 L. J C P 100 • 
 
 17 Jur. 716; IW. B. 153 \,/ ..'. 149 
 
 Mitchell V. Glamorgan Coal Co., (1907), 23 T. L. B. 588 ; 9 W. C. C. 
 
 16 ' ... ■ 76,' 98, 870 
 
 " M. Moxham," The, (1876), 1 P. D. 107 ; 46 L. J. P. 17 • 34 L T 
 
 559; 24W.B.650 ' ... ' . /. 453 
 
 Moffatt V. Bateman, (1869), L. B. 3 P. C. 115; 22 L T 140-6 
 
 Moore P. C. N. S. 369 ... .'.. '... 49^77 
 
table of Oases Iv 
 
 ,, PAGE 
 
 Monaghan v. Horn, (1881), 7 Can. S. 0. R. 409 119 
 
 Mouaghan v. United Collieries, Ltd., (1900), 3 F. 149: 38 Sc. 
 
 L.R.92; 8SO.L.T.261 .:. ... ... 495,506 
 
 Monahan u. Moore, (1897), 23 V. L. B. 230 183 
 
 Monok V. Hilton, (1877), 2 Ex. D. 263 ; 46 L. J. M. 0. 163 ; 36 L. T. 
 
 66;25W. B. 373 442 
 
 " Monte Rosa," The, [1893] P. 23; 62 L. 3. P. 20; 68 L. T. 299; 
 
 41 W. E. 304 ; 7 Asp. M. C. 326 90 
 
 Mooney v. Edinburgh & District Tramway Co., Ltd., (1901), i F. 
 
 390; 38 So. L.B. 260 ... ... 503 
 
 Moore v. Gimson, (1889), 58 L. J. Q. B. 169 ; 5 T. L. E. 177 ... 169, 
 
 174, 205, 223 
 Moore v. Metropolitan By. Co., (1872), L. B. 8 Q. B. 36 ; 42 L. J. 
 
 Q.B. 23; 27L. T. 579; 21 W. B. 145 151 
 
 Moore I). Bansome's Dock Committee, (1898), 14 T. L. B. 539 ... 58 
 
 Moore u. Boss, (1890), 17 E. 796 ; 27 Sc. L. B. 626 166,185,267 
 
 Moorhouse «. Lee, (1864), 4 P. & F. 354 275 
 
 Morden v. Porter, (1860), 7 C. B. N. S. 641 ; 29 L. J. M. C. 213 ; 
 
 IL. T. 403; 8W. E. 262 156 
 
 Morgan v. Hutchins, (1890), 59 L. J. Q. B. 197 ; 38 W. B. 412 ; 
 
 6 T. L.B. 219 159,166,176 
 
 Morgan v. Loudon General Omnibus Co., (1885), 13 Q. B. D. 832 ; 
 
 58 L. J. Q. B. 352 ; 51 L. T. 213 ; 32 W. B. 759 ; 48 J. P. 503 268, 
 
 270, 272, 274, 277 
 Morgan v. Sim, (1857), 11 Moo. P. C. 307 ; 30 L. T. (0. S.) 236 ; 
 
 sm6 worn. " City of London," The, Swabey, 300 72 
 
 Morgan v. Vale of Neath By. Co., (1865), L. E. 1 Q. B. 149 ; 5 
 
 B. & S. 736 ; 35 L. J. Q. B. 23 ; 13 L. T. 564 ; 14 W. E. 144 ... 14 
 
 Morris v. Atkins & Brooker, (1902), 18 T. L. E. 628 63 
 
 Morris v. Boase Spinning Co., Ltd., (1895), 22 B. 836 ; 32 S9. L. B. 
 
 243 39 
 
 Morris v. Lambeth Borough Council, (1905), 22 T. L. E. 22 ... 379 
 
 Morris v. Northern Employers' Mutual Indemnity Co., [1902] 2 K. B. 
 165 ; 71 L. J. K. B. 733 ; 86 L. T. 748 ; 50 W. E. 545 ; 66 J. P. 
 644; 18 T. L.B. 635; 4 W. C. C. 38 585,586,639 
 
 Morrison v. Baird, (1882), 10 E. 271 ; 20 So. L. E. 185 ... 134, 137, 217, 
 
 244, 254, 276 
 
 Morrison «. M'Ara, (1896), 23 B. 564 70 
 
 Morrison v. Scottish Employers' Liability and Accident Assurance * 
 
 Co., (1888), 16 B. 212; 26 Sc. L.B. 151 134 
 
 Mors-le-Blanch v. Wilson, (1873), L. B. 8 C. P. 227 ; 42 L. J. C. P. 
 
 70 ; 28 L. T. 415 ; 1 Asp. M. C. 605 697 
 
 Morten v. MarshaU, (1863), 2 H. & C. 305 ; 33 L. J. Ex. 54 ; 9 Jur. 
 
 (N. S.) 651 ; 8 L. T. 462 295 
 
 Morton ?). Quick, (1878), 26 W. B. 441 255 
 
 Morton v. Woodward, [1902] 2 K. B. 276 ; 71 L. J. K. B. 736 ; 86 
 
 L. T; 878 ; 51 W. R. 54 ; 66 J. P. 660 ; 4 W. C. C. 148 ... 576, 577, 
 
 625, 685 
 
 Mountain v. Parr, [1899] 1 Q. B. 805 ; 68 L. J. K. B. 447 ; 80 L. T. 
 
 342 ; 47 W.. B. 353 ; 15 T. L. E. 262 ; 1 W. C. C. 110 . ,. 631, 671, 677 
 
Ivi Tahh of Gases 
 
 PAGE 
 
 Mowbray.u. Mecryweather, [1835] 2 Q. B. 640 ; 65 L. J. Q. B. 50 ; 73 
 
 L. T..459 ; 44 W. R. 49 ; 59 J. P. 390 ; 12 T. L. B. 14 ; 14 B. 767 53 
 
 Moyes u/Wm. Dixon, Ltd., (1905), 7 P. 386; 42 Sc. L. B. 319; 12 
 
 Sc. L. T. 658 472 
 
 Moyle V. Jentms, (1881), 8 Q. B. D. 116 ; 51 L. J. Q. B. 112 ;.46 
 
 L. T. 472 ; 30 W. E. 324 260 
 
 Mullen V. Stewart & Co., Ltd., (1908), 45 Sc. L. E. 729 ... 377, 388 
 
 Mulligain). M'Alpine, (1838)^ 15 R. 739 ; 25 Sc. L. B. 589 ... 169, 186 
 
 MuUins V. Collins, (1876), L. E. 9 Q. B. 292 ; 43 L. J. M. 0. 67 ; 29 
 
 L. T. 838 ; 22 W. E. 297 155 
 
 Mulrooney v, Todd and the Lord Mayor, etc., of Bradford, 25 T. L. E. 
 
 103 459,481 
 
 Munday J). Thames Ironworks Co., (1882), 10 Q. B. D. 59 ; 52 L. J. 
 
 Q. B. 119 ; 47 L. T. 851 252,253 
 
 Munster v. OammeU & Co., (1882), 21 Oh. D. 183 ; 51 L. J. Ch. 731 ; 
 
 47 L. T. 44 ; 30 W. E. 812 456 
 
 Murnin v. Oalderwood, (1899), 1 F. 634 ; 36 So. L. E. 648 641 
 
 Murphy v.G. n'. By. Co. of Ireland, [1897] 2 I. E. 301 70 
 
 Murphy v. Phillips, (1876), 35 L. T. 477 ; 24 W. E. 647 ... 26, 29, 34, 179 
 
 Murphy v. Smith, (1865), 19 C. B. N. S. 361 ; 12 L. T. 605 41, 208 
 
 Murphy v. Smith, (1886), 13 E. 985 ; 23 Sc. L. R. 709 71 
 
 Murphy v. Wilson, (1883), 52 L. J. Q. B. 524 ; 48 L. T. 788 ; 47 J. P. 
 
 565;48J.P.24 235,238 
 
 Murray v. Currie, (1870), L. R. 6 0. P. 24 ; 40 L. J. 0. P. 26 ; 23 
 
 L. T. 557 ; 19 W. E. 104 43,140,286 
 
 Murray v. Gourlay, [1908] S. C. 769, see Gourlay v. Murray. 
 
 Murray «. Merry, (1890), 17 E. 815 ; 27 So. L. R. 666 159 
 
 Murray v. Steel, (1885), 12 R. 945 ; 22 So. L. R. 630 244, 258 
 
 Nash i;. Cunard Steamship Co., (1891), 7 T. L. R. 597 40 
 
 Neagle v. Nixon's Navigation Co., Ltd., [1904] 1 K. B. 339 ; 73 
 
 L. J. K. B. 165 ; 90 L. T. 49 ; 52 W. R. 356 ; 68 J. P. 297 ; 20 
 
 T. L. R. 160 683 
 
 Neale v. Electric & Ordnance Accessories Co., [1906] 2 K. B. 558 ; 
 
 75 L. J. K. B. 974 ; 95 L. T. 592 ; 22 T. L. R. 732 ; 8 W. C. C. 6 118, 
 
 422, 424, 427 
 Nelson v. Kerr & Mitchell, (1901), 3 P. 893 ; 38 Sc. L. E. 645 ; 9 Sc. 
 
 L. L. 83 532 
 
 Nelsop ■«. Maudslay, Son & Pield (not reported) 587 
 
 Nelson v. Scott, (1892), 19 R. 425 ; 29 So. L. E. 354 187 
 
 New South Wales (Bank of) v. Owston, see Bank of New South 
 
 Wales V. Owston. 
 Nicholls 13. Hall, (1873), L. R. 8 0. P. 322 ; 42 L. J. M. C. 105 ; 28 
 
 L. T. 473 ; 21 W. R. 579 604 
 
 Nichols V. Marsland, (1875), L. R. 10 Ex. 255 ; (1876), 2 Ex. D. 1 • 46 
 
 L. J. Ex. 174 ; 35 L. T. 725 ; 25 W. R. 173 50,59 
 
 Nicholson v. Lancashire and Yorkshire By. Co., (1865), 3 H & 
 
 0. 534 ; 34 L. J. Ex. 48 ; 12 L. T. 391 ... ... 172 
 
 Nicholson 1). Mouncey, (1812), 15 East 384 ; 13 E. E. 501 288 
 
 Nicholson v. Piper, [1907] A. 0. 215 ; 76 L. J. K. B. 856 ; 97 L T 
 
 119 ; 23 T. L. E. 620 ." 566 
 
Table of Cases Ivii 
 
 PAGE 
 
 NiooU V. Greaves (1864), 17 C. B. N. S. 27 ; 33 L. J. C. P. 259 ; 
 
 10 Jur. (N, S.) 919 ; 10 L. T. 531 ; 12 W. E. 961 ... ... 268 
 
 Nioolson V. MaoAndrew, (1888), 15 R. 854; 25 So. L. E. 607 ... 133 
 
 Nield V. L. & N.-W. Ey. Co., (1874) L. E. 10 Ex. 4 ; 44 L. J. Ex. 15 ; 
 
 23W. R. 60 69 
 
 Nimmo & Co. v. Fisher, [1907] S. C. 890 ; 44 So. L. R.,641 . ... 615 
 Nitro-Phosphate and Odam's Chemical Manure Co. v. London and 
 
 St. Katharine Docks Co., (1878), 9 Ch. D. 503 ; 39 L. T. 433 ; 
 
 27W. E. 267 16,65 
 
 Noel V. Eedruth Foundry Co., [1896] 1 Q. B. 453 ; 65 L. J. Q. B. 
 
 330; 74 L. T. 196; 44 W. R. 407 ; 12 T. h. R. 248 ... 105, 239, 
 
 240, 241, 521, 572 
 Nordenfeltsj. Maxim Nordenfelt Guns, &o., Co., [1894] A. 0. 535; 
 
 63 L. J. Ch. 908 ; 11 E. 1 ; 71 L. T. 489 ; 10 T. L, E. 636 ... 295 
 Nordheimer «. Alexander, (1891), 19 Can. S. C. R. 248 ... 168,188 
 
 Norman & Burt v. Walder, [1904] 2 K. B. 27 ; 73 L. J. K. B. 461 ; 90 
 
 L. T. 531 ; 52 L. R. 402 ; 68 J. P. 401 ; 20 T. L. R. 427 ; 6 W. C. C. 
 
 124 ... ■ 575 
 
 North V. Smith, (1861), 10 C. B. N. S. 572 ; 4 L. T. 407 146 
 
 North British Ey. Co. v. Wood, (1891), 18 E. (H. L.) 27 ; 28 So. L. E. 
 
 130, . , 118 
 
 North Eastern Ey. Co. v. Wanless, (1874), L. E. 7 H. L. 12; 43 
 
 L. j..Q. B. 185; 30L. T. 275; 22 W. R. 561 81 
 
 North Metropolitan Tramways Co. v. London County Council, 
 
 [1898] 2 Ch. 145 ; 67 L. J. Ch. 449 ; 78 L. T. 711 ; 46 W. E. 554 ; 
 
 62 J, P. 488 ; 14 T. L. R. 414 247 
 
 Northern Employers' Mutual Indemnity Co. v. Kriiveton, see 
 
 Kniveton v. N. E. M. I. Co. 
 Northey v. Trevillion, (1902), 18 T. L. R. 648 ; 7 Com. Cas. 201 ... 11 
 
 Nowlan v. Ablett, (1885), 2 C. M. & R. 54 ; 4 L. J. Ex. 155 ; 5 Tyr. 
 
 709; 1 Gale 72 268 
 
 Nugent V. Smith, (1875), 1 C. P. D. 423 ; 45 L. J. C. P. 697 ; 34 
 
 L. T. 827; 25 W. R. 117 16,51,66 
 
 Nunn V. Tyson, [1901] 2 K. B. 487 ; 70 L. J. K. B. 854 ; 85 L. T. 
 
 123; 50W. R. 16; 17T. L. R. 624 597 
 
 Nurse 1). Yerworth, (1674) 3 Swan (App.), 608; Rep. Tem. Pinch. 
 
 155 ; 2 Mod. 8 ; 23 Eng. Eep. 85 ; 36 i6. 993 104 
 
 Oakes v. Monkland Iron Co., (1884) 11 E. 579 ; 21 So. L. E. 407 267, 452 
 O'Byme v. Burn, (1854), 16 Dunlop, 1025 ; 26 Sc. Jur. 559 ... ,40 
 
 O'Connor v. Hamilton Bridge Co. , (1893) , 25 Ont. E. 12 180 
 
 O'Donovan and Cameron, Swan, In re, [1901] 2 I. E. 633 ; 34 Ir. 
 
 L. T. 169 101,475 
 
 Offin I!. Rochford Rural D. C, [1906] 1 Ch. 342 ; 75 L. J. Ch. 348 ; 
 
 94 L. T. 669 ; 54 W. R. 244 ; 70 J. P. 97 ; 4 L. G. R. 595 ... 247 
 
 Ogden i;. Eummens, (1863), 3 F. & F. 751 28,33,169 
 
 Ogdens, Ltd. v. Nelson, [1905] A. C. 109; 74 L. J. K. B. 433; 92 
 
 L. T. 478 ; 53 W. R. 497 ; 21 T. L. R. 359 11 
 
 Ogle V. Morgan, (1852), 1 DeG. M. & G. 359 ; 16 Jur. 277 ; 42 Eng. 
 
 Rep. 590 2G8 
 
Iviii Table of Cases 
 
 PAGE 
 
 O'Hanlon v. Dundalk, &o., Steam Packet Co., (1899), 33 Ic. L. T. 
 
 36 431 
 
 O'Hara v. Cadzow Coal Co., Ltd., (1908) 5 P. 439 ; 40 So. L. R. 355 ; 
 
 lOSo. L. T. 617 *11 
 
 O'Keefe v. Lovatt, (1901), 18 T. L. R. 57 ; 4 W. 0. 0. 109 ; W.N. 
 
 923 ... ... 531,638 
 
 / Oldfield V. Fumess, Withy & Co., (1893), 9 T. L. R. 515 ; 58 J. P. 
 
 ' 102 43 
 
 Oliver «. Nautilus Steam Shipping Co., Ltd., [1903] 2 K. B. 639 ; 72 
 
 L. J. K. B. 857 ; 89 L. T. 318 ; 52 W. R. 200; 9 Asp. M. C. 
 
 436 ; 5 W. C. C. 65 ; 19 T. L. R. 607 616,689 
 
 O'Neil V. Everest, (1893), 61 L. J. Q. B. 453 ; 66 L. T. 396 ; 56 J. P. 
 
 612 ; 8 T. L. R. 426 ; 7 Asp. M. C. 163 1T2 
 
 O'Neill V. MotherweU, [1907] S. C. 1076 ; 44 So. L. R. 764 614 
 
 Ormrod, or Omerod, Ex parte, (1844), 1 Dow. & L. 825 ; 1 New Sess. 
 
 Cas. 38 ; 13 L. J. M. 0. 73 ; 8 Jur. 495 275 
 
 Ormond u. HoUand, (1858), E. B. & E. 102 34 
 
 " Orwell," The, (1888), 13 P. D. 80 ; 57 L. J. P. 61 ; 59 L. T. 312 ; 
 
 36 W. R. 703 ; 6 Asp. M. C. 309 119 
 
 Osborn v. GiUett, (1873), L. R. 8 Ex. 88 ; 42 L. J. Ex. 53 ; 28 L. T. 
 
 197 ; 21 W. R. 409 102,105 
 
 Osborn V. Viokers, Sons & Maxim, Ltd., [1900] 2 Q. B. 91 ; 69 L. J. 
 
 Q. B. 606; 82L. T. 491; 16 T. l: R. 333; 2W. C. C. 130 ... 582, 
 
 605, 640, 678, 679 
 Osborne v. Jackson, (1883), 11 Q. B. D. 619 ; 48 L. T. 642 ... 203, 212 
 
 Osmond v. Campbell & Harrison, [1905] 2 K. B. 852 ; 75 L. J. K. B. 
 
 1; 93L. T.724; 54 W. R. 117; 22T. L, R. 4 549 
 
 O'SuUivan v. O'Connor, (1888), 22 L. R. Ir. 467 46 
 
 Ovingtoni). M'Vioar, (1864), 2 Maoph. 1066 161,177,178 
 
 Owner v. Hooper, (1903), 89 L. T. 130 ; 67 J. P. 406 ; 19 T. L. R. 601 294 
 
 Page V. Burtwell, [1908] 2 K. B. 758 : 308, 424, 600, 690 
 
 Paley v. Garnett, (1885), 16 Q. B. D. 52 ; 34 W. B. 295 ; 50 J. P. 469 175, 186 
 Palmer v. Wick and Pulteney Town Steam Shipping Co., [1894] 
 
 A. C. 318 ; 71 L. T. 163 ; 10 T. L. R. 511 ; 6 R. 245 ... 65, 154, 696 
 Park V. Maver, 43 So. L. R. 191, see Maver «. Park. 
 Park Gate Iron Co. v. Coates, (1870), L. R. 5 C.iP. 684 ; 39 L. J. C. P. 
 
 317; 22L. T. 658; 18 W. R. 928 244 
 
 Parker v. Bristol and Exeter Ry. Co., (1851), 6 Ex. 184 ; 2 L. M. & P. 
 
 136 ; 20 L. J. Ex. 112 ; 15 Jur. 809 257 
 
 Parker v. London County Council, [1904] 2 K. B. 501 ; 73 L. J. K. B. 
 
 561 ; 90 L. T. 415 ; 52 W. R. 476 ; 68 J. P. 239 ; 2 L. G. R. 662 ; 
 
 20T.L. R. 271 ... 246 
 
 Parker D. Wm. Dixon, Ltd., (1902), 39 So. L. R. 663 569 
 
 Parry i). Smith, (1879), 4 C. P. D. 325 ; 48 L. J. C. P. 731 ; 41 L. T. 
 
 93;27W. R.801 59 
 
 Partington, Ex parte, (1844) , 6 Q . B . 649 361 
 
 Patent Safety Gun Cotton Co. v. Wilson, (1880), 49 L. J. Q. B 713 57 
 
 Paterson v. Blackburn Corporation, (1892), 9 T. L. R. 55 55 
 
Table of Cases lix 
 
 PAGE 
 
 Paterson «. Fleming, (1904), 23 N. Z. L. K. 676 141 
 
 Patersonii. Lookhart, (1905), 7 F. 954 ; 42 So. L. R. 755 ; 13 So. L. T. 
 
 298 ... 447 
 
 Paterson v. Wallace, (1854), 1 Maoq. (H. L. So.) 748 ; 1 Pateraon 389 
 
 22, 33, 74 
 Paton V. Niddrie & Benliar Coal Co., (1885), 12 R. 588 ; 22 So. L. B. 
 
 345 259 
 
 Pattlnson & Sons v. Stevenson, (1900), 2 W. 0. C. 156 ; 109 L. T. 
 
 newspaper, 106 552,554,556,568 
 
 Pattlson V. White & Co , (1904) , 20 T. L. R. 775 499 
 
 Pattonu. Texas, &o., Ry. Co., (1901), 179 U. S. 658 74 
 
 Paul V. Travellers' Insurance Co., (1889), 8 Am. St. R. 758 ... 16 
 
 • Pearoe v. L. & S.-W. By. Co., [1900] 2 Q. B. 100 ; 69 L. J. Q. B. 683 ; 
 
 82 li. T. 487; 48 W. B. 599; 16 T. L. B. 336; 2 W. C. C. 47 
 
 486, 487, 488 
 
 Pearson u. Cox, (1877), 2 C. P. D. 369 ; 36 L. T. 495 71,77 
 
 Pearson v. DubKn Corporation, [1907] 2 I. B. 27 ; [1907] A. C. 351 ; 
 
 77 L. J. P. C. 1 ; 97 L. T. 645 246 
 
 Pedgrift v. ChevaUier, (1860), 8 C. B. N. S. 240, 246 ; 29 L. J. M. C. 
 
 225; 6Jur. (N. S.)1341; 8W. R. 500 678 
 
 Peebles v. Oswaldtwistle Urban District Council, [1896] 2 Q. B. 159 ; 
 
 65 L. 3. Q. B. 499; 74 L. T. 721 ; 44 W. B. 513 ; 60 J. P. 516 
 
 101. 476, 477 
 Pegram v. Dixon, (1886), 55 L. J. Q. B. 447 ; 51 J. P. 198 ; 2 T. L. B. 
 
 801 165 
 
 Penn v. Spiers & Pond, Ltd., [1908] 1 K. B. 766 ; 77 L. J. K. B. 542 ; 
 
 98L. T. 541 394,528 
 
 Penny v. Wimbledon Urban District Council, [1899] 2 Q. B. 72 ; 
 
 68 li. J. Q. B. 704 ; 80 L. T. 615 ; 47 W. R. 565 ; 63 J. P. 406 ; 
 
 15T. L. R. 348 ... 61,287 
 
 Pennsylvania Co. o. Lanjendorf, (1891), 29 Am. St. R. 553 92 
 
 Percival v. Garner, [1900] 2 Q. B. 406 ; 69 L. J. Q. B. 824 ; 64 J. P. 
 
 500 ; 16 T. L. R. 396 ; 2 W. C. C. 99 492,511 
 
 Percival v. Hughes, see Hughes v. Percival. 
 
 Perkins v. Stead, (1907), 23 T. L. R. 433 140 
 
 Perry u. Brass, (1889), 5 T. L. R. 253 188 
 
 Perry v. Clements, (1900), 17 T. L. R. 525; 49 W. R. 669; 
 
 3W. 0. C. 56 607,611 
 
 Perry v. Wright, [1908] 1 K. B. 441 ; 77 L. J. K. B. 286 ; 98 L. T. 
 
 327 ; 24 T. L. R. 186 521, 526, 529, 536, 537, 539, 563 
 
 " Petrel," The, [1893] P. 320 ; 62 L. J. P. 92 ; 1 R. 651 ; 70 L. T. 417 ; 
 
 7Asp. M. C434 14 
 
 Phillips V. Alhambra Palace Co., [1901] 1 K. B. 59 ; 7 L. J. K. B. 26 ; 
 
 83 L. T. 431 ; 49 W. B. 223 ; 17 T. L. B. 40 10 
 
 Phillips V. Homfray, (1883), 24 Ch. D. 439 ; 52 L. J. Ch. 833 ; 49 
 
 L.T.5; 32W.E.6 ... 101 
 
 Phillips V. L. & S.-W. By. Co., (1879), 5 Q. B. D. 78 ; 41 L. T. 121 ; 28 
 
 W.B.IO; 5C. P.D.280; 49 L. J.C.P.233; 42 L. T.6; 44 J.P. 
 
 217 114,290,292 
 
 Piers V. Lovatt, cited in Ruegg's Workman's Compensation (7th 
 
 edit.), 82 265 
 
 Pike u. London General Omnibus Co., (1891), 8 T. L. R. 164 ... 97 
 
Ix Tdble of Cases 
 
 PAGE 
 
 Pisani v. Lawson, (1839), 6 Bing.N. 0. 90; 8 Scott, 180; 8 Dowl. 
 
 57; 9 L.J. 0. P. 12; 3 Jur. 1153 103 
 
 PoUey V. Pordham, [1904] 2 K. B. 345 ; 73 L. J. K. B. 687 ; 90 L. T. 
 
 755; 53W.K.48, 188; 68 J.P.321; 20T.L.K.435 247 
 
 Pomfret v. L. & Y. By. Co., [1903] 2 K. B. 718 ; 72 L. J. K. B. 729 ; 
 
 89 L. T. 176 ; 52 W. E. 66 ; 19 T. L. E. 649 ; 5 W. C. C. 22 ... 98, 364, 
 
 369 
 Pomphrey v. Southwark Press, [1901] 1 K. B. 86 ; 70 L. J. Q. B. 48 ; 
 
 83 L. T. 468 ; 65 J. P. 148 ; 17 T. L. E. 53 ; 3 W. C. 0. 194 ... 535, 
 
 568, 571, 573, 575 
 Porton V. Central (Unemployed) Body for London, 25 T. L. E. 102 448 
 
 Potter V. Faulkner, (1861), 1 B. & S. 800 ; 31 L. J. Q. B. 30 ; 5 L. T. 
 
 465; 10 W. E.93; 8 Jur. (n.s.)259 46,59 
 
 Potter V. Great Western Colliery Co., (1894), 10 T. L. E. 380 ... 252 
 
 Potter V. Metropolitan District Ey. Co., (1874), 30 L. T. 765 ; (1875), 
 
 32L. T. 36 ... 115 
 
 Potts v. Plunk'ett, (1859), 9 Ir. C. L. E. 290 : 22 
 
 Potts V. Port Carlisle Dock and Ey. Co., (1860), 2 L. T. 283 ; 8 W. E. 
 
 524 23 
 
 Poultoni;. L. & S.-W. Ey. Co., (1867), L. E. 2 Q. B. 534 ; 8 B. & S. 616 ; 
 
 36L. J.Q;b.294; 17L.T. 11; 16W. E.309 152 
 
 Powell V. Brown, [1899] 1 Q. B. 157; 68 L. J. Q. B. 151 ; 79 L. T. 
 
 631; 47W.E,145; 15T.L.E.65; IW.C.0.44 ... 490,496,497, 
 
 501, 502 
 
 Powell Duffryn Steam Coal Co.r. Edwards, (1900), The Times news- 
 paper, 23rd July ..; ..: 559,564 
 
 Powell V. Pall, (1880), 5 Q. B. D. 597 ; 49 L. J. Q. B. 428 ; 43 L. T. 562 285 
 
 Powell V. Kempton Park Eaceoourse Co., [1899] A. C. 143 ; 68 L. J. 
 
 Q.B.392; 80L.T.538; 47W.E.585; 63 J. P. 260; 15T.L.R. 
 
 266 : 123 
 
 Powell V. Lanarkshire Steel Co., (1904), 6 P. 1039 ; 42 Sc. L. E. 231 ; 
 
 12SC.L.T.656 388 
 
 Powell V. M'Glynn & Bradlaw, [1902] 2 I. E. 154 71, 76 
 
 PoweU V. Main Colliery Co., Ltd., [1900] A. C. 366; 69 L. J. Q. B. 
 
 758 ; 83 L. T. 85 ; 49 W. E. 49 ; 65 J. P. 100 ; 16 T. L. E. 466 ; 
 
 2 W . C. C. 29 ... 426, 597, 598, 600, 607, 608, 610, 612, 613, 616, 669 
 Praed v. Graham, (1889), 24 Q. B. D. 53 ; 59 L. J. Q. B. 230 ; 38 
 
 W. E. 103 291 
 
 Praties v. Broxburn Oil Co., [1907] S. C. 581 ; 44 So. L. E. 408 411, 412 
 
 Pratt V. Weymouth Inhabitants, (1888),'147 Mass. 245 ; 9 Am. St. E. 
 
 691 163 
 
 Prendible v. Connecticut Eiver Manfg. Co., (1893), 160 Mass. 131 ... 170 
 
 Preston Banking Co. v. William AUsup & Sons, [1895] 1 Ch. 141 ; 
 
 64 L. J. Ch. 196 ; 71 L. T. 708 ; 43 W. R. 231 ; 12 E. 51 ... 638 
 
 Previdi or Previsi v. Gatti, (1888), 58 L. T. 762; 36 W. E. 670; 52 
 
 J.P. 646; 4T.L.E.487 243,263 
 
 Price V. Marsden, [1899] 1 Q. B. 493 ; 68 L. J. Q. B. 807 ; 80 L. T 
 
 15 ; 47 W. E. 274 ; 15 T. L. E. 184 ; 1 W. 0. C. 108 521 
 
 Pridie v. Dick, (1857), 19 Dunlop 287 ; 29 So. Jur. 142 107 
 
 Priest D. Cochrane, (1902), 7 April, (unreported) 4.30 
 
 Priestley v. Powler, (1837), 3 M. & W. 1 ; 7 L. J. Ex. 42 ; M. & H. 
 
 305; 1 Jur. 987 21 
 
Tnhle of Cases Ixi 
 
 Printing and Numerical Eegistering Co. i). Sampson, (1875), L. R. 
 
 19 Eq. 462 ; 44 L.J. Ch. 705 ; . 32 L. T. 354 ; 23 W. B. 463 ... 295 
 
 Pritchard 1). Lang, (1889), 5 T. L. R. 639 171 
 
 Prosser v. Edmonds, (1835), 1 Y. & C. 481 108 
 
 Prosser-H. Lancashire and Yorkshire Accident Insurance Co., (1890), 
 
 6T.L. K 285 ... 117 
 
 Pryoe, In re, Eensburg, Ex parte, (1877), 4 Oh. D. 685 ; 36 L. T. 117 : 
 
 25W. B. 432 373 
 
 Pryce v. Penrikyber Navigation Co., [1902] 1 K. B. 221 ; 71 L. J. 
 
 K. B. 192 ; 85 L. T. 477 ; 50 W. B. 197 ; 66 J. P. 198 ; 18 T. L. R. 
 
 54 ; 4 W. C. C. 115 465,474 
 
 Pugh V. London, Brighton and South Coast By. Co., [1896] 2 Q. B. 
 
 248 ; 65 L. J. Q. B. 521 ; 74 L. T. 724 ; 44 W. B. 627 ; 12 T. L. B. 
 
 448 ... 16 
 
 Pulling- V. G. E. By. Co., (1882), 9 Q. B. D. 110 ; 51 L. J. Q. B. 
 
 453 ; 30 W. B. 798 ; 46 J. P. 617 .' 115 
 
 Pumpherston Oil Co., Ltd. v. Cavaney, (1903), 5 P. 963 ; 40 Sc. L. B. 
 
 "'■ 724; 11 So. L.T. 171 576 
 
 Purves r. Sterne, (1900), 2 P. 887 ; 37 Sc. L. B. 696 512 
 
 Pym v.G. N. By. Co., (1862), 2 B. & S. 759; (1863), 4 B. & S. 396 ; 
 
 32 L. J. Q. B. 377 ; 8 L.T. 734; 11 W. B: 922; 10 Jur. (n.s.) 
 
 199 109,111 
 
 Quarman v. Burnett, (1840), 6 M. & W. 499; 9 L. J. Ex. 308 ; .4 
 
 Jur. 969 140,146 
 
 iQueen I!. Clarke, [1906] 2 L R. 135 466,466 
 
 Queen, The v. Boteler, (1864), 4 B. & S. 959 ; 33 L. J. M. C. 101 ; 10 
 
 Jur. (N.s.) 798; 12 W.B. 466 637,654 
 
 Queen, The v. City oif London Court (Judge of), (1885), 14 Q. B. D. 
 
 90S ; 54 L. J. Q. B. 330 ; 52 L. T. 537 ; 33 W. B. 700 ; 1 T. L. E. 
 
 484 253 
 
 Qiieen, The v. Hutchings, (1881), 6 Q. B. D. 300 ; 50 L. J. M, C. 
 
 35 ; 44 L. T. 364 ; 29 W. B. 724 ; 45 J. P. 504 417 
 
 Queen, The v. Kent Justices, (1873), L. R. 8 Q. B. 305 ; 42 L. J. M. 0. 
 
 112;-21 W. B. 635 ... ... ' 432 
 
 Queen, The v. Madhub, &c., (1878), 21 Sutherland's W. B. Orim. 
 
 (India) 13 78 
 
 Queen, The u. Oxfordshire County Court (Judge of), [1894] 2 Q. B. 
 
 440 ; 63 L. J. Q. B. 689 ; 70 L. T. 874 ; 42 W. B. 603 ; 58 J. P. 
 
 752; 10R.381; 10T.L.B.547 630 
 
 Queen, The v. Sheffield (Mayor of), (1871), L. R. 6 Q. B. 652 ; 40 L. J. 
 
 Q.B. 247; 24 L.T. 659; 19 W.B. 1159 246 
 
 Queen, The v. Shropshire Justices, (1838), 8 A. & B. 173 392 
 
 Queen, The.u. Wortley, (1851), 21 L. J. M. C. 44 ; 2 Den. 0. C. 333 ; 
 
 T. &M. 636; 15 Jur. 1137; 5. Cox C.C. 382 ... .... 268 
 
 Quinni;. Brpwn, (1906), 8P. 855; 43SC.L..B.643 424 
 
 Quinn v. Leathern, [1901] A. C. 495 ; 70 L. T. P. C. 76; 85 L. T. 289 ; 
 
 50 W.B. 139; 65 J. P. 708; 17 T.L.E. 749 355 
 
 R. D. Almon, (1770), 20 How. St. Tr. 803 ... 156 
 
 R.iJ.Ashton, (1754), Sayer, 159 ... 'i ... 449 
 
253 
 
 Ixii Table of Cccses 
 
 FAGH 
 
 E. V. Boteler, (1864), 4 B. & S. 959 ; 33 L. J. M. 0. 101 ; 10 Jur. (ir.s.) 
 
 798 ; 12 W. R. 466 637,654 
 
 B. V. City o£ London Court, (Judge of), (1885), 14 Q. B. D. 905 ; 54 
 
 L. J. Q. B. 330 ; 52 L. T. 537 ; 33 W. B.,700 ; 1 T. L. E. 434 ... 
 E. D.Dixon, (1814), 3 M.&S. 11; 4 Gamp. 12; 15 E.E. 381 ... 155 
 
 E. •<;. Haines, (1847), 2 C. & K. 368 64 
 
 E. V. Hampden, (1637), 3 How. St. Tr. 825 295 
 
 E. V. Haslingfield, (1814), 2 M. & S. 558 ; 15 E. E. 350 73 
 
 E. V. Hutohings, (1881), 6 Q. B. D. 300 ; 50 L. J. M. C. 35 ; 44 L. T. 
 
 364; 29 W.E. 724; 45 J. P. 504 417 
 
 E. u. Ivinghoe, (1718), 1 Stra. 90 478 
 
 E. V. Kent Justices, (1873), L. E. 8 Q. B. 305 ; 42 L. J. M. C. 112 ; 21 
 
 ■W.E.685 482 
 
 E: 1). Louth Justices, [1900] 2 I. E. 714 ; 34 Ir. L. T. 131 272 
 
 E. V. Madhub, &c., (1873), 21 Sutherland's W. E. Criminal (India), 13 78 
 
 E. V. Owen, [1907] 2 K. B. 436 ; 71 L. J. K. B. 770 ; 87 L. T. 298 ; 51 
 
 W. E. 168 ; 18 T. L. R. 701 ; 4 W. C. C. 150 673 
 
 E. V. Oxfordshire County Court (Judge of), [1894] 2 Q. B. 440; 63 
 
 L.J.Q.B.689; 70L.T.874; 42 W.E. 603; 58 J. P. 752; 10 E. 
 
 381; 10T.L.E.547 630 
 
 E. V. Pearoe or Pierce, (1880), 5 Q. B. D. 386 ; 49 L. J. M. 0. 81 ; 28 
 
 W.E.568; 44J.P.216 477 
 
 E. V. Sheffield Corporation, (1871), L. E. 6 Q. B. 652 ; 40 L. J. Q. B. 
 
 247; 24 L.T. 659; 19 W.E. 1159 246 
 
 E. V. Shropshire Justices, (1838), 8 A. & E. 173 392 
 
 E. «. SterUng, (1755), Sayer, 174 449 
 
 R. «. Wakefield, (1758), 1 Burr. 485 ; 2 Ld. Ken. 164 257 
 
 E. «. Walker, (1842), 1 C. & P. 320 91 
 
 E. V. Wortley, (1851), 21 L. J. M. C. 44 ; 2 Den. 0. C. 333 ; T. & M. 
 
 636; 15 Jur. 1137; 5 Cox C.C. 382 268 
 
 Eaoe «. Harrison, (1893), 10 T. L. R. 92 175,177 
 
 Rae I). Milne & Sons, (1896), 24 E. 165 ; 34 So. L. R. 149 168 
 
 Eadley v. L. & N.-W. By. Co., (1875), 1 App. Gas. 754 ; 46 L. J. Ex. 
 
 573; 35 L.T. 637; 25 W.E. 147 86,89 
 
 EaUroad Co. ■«. Port, (1873), 17 Wall. (U. S.) 553 40,208 
 
 EaUway Sleepers Supply Co., In re, (1885), 29 Ch. D. 204 ; 54 L. J. 
 
 Ch. 720; 52 L. T. 731 ; 33 W. E. 595 ; 1 T. L. E. 399 392 
 
 Baleigh v. Goschen, [1898] 1 Ch. 73 ; 67 L. J. Ch. 59 ; 77 L. T. 429 ; 
 
 46 W. E. 90; 14T.L.B.36 282 
 
 Ealston 1). Eowat, (1833), 1 CI. & P. 424 107 
 
 Eankine v. Alloa Coal Co., (1904), 6 P. 375 ; 41 So. L. B. 306 ; 11 Sc. 
 
 L.T. 670 605 
 
 Baphael v. Bank of England, (1855), 17 C. B. 161 ; 25 L. J. C. P. 33 ; 
 
 4W. B. 10 195 
 
 Eatcliffe v. Barnard, (1871), L. E. 6 Ch. 625 ; 40 L. J. Ch. 777 ; 19 
 
 W. B. 764 49 
 
 Eathbone v. Boss, (1891), 35 Sol. J. 208 260 
 
 Bay «. Wallis, (1886), 51 J. P. 519 ; 3 T. L. E. 777 201,203,206 
 
 Eayner v. Mitchell, (1877), 2 C. P. D. 357 ; 25 W. B. 633 149 
 
 Bea V. Balmain New Perry Co., (1896), 17 N. S. W. B. (L.) 92 ... 84 
 
Table of Cases Ixiii 
 
 PAGE 
 
 Bead v. G. E. Ry. Co., (1886), L. E. 3 Q. B. 555 ; 9 B. & S. 714 ; 37 
 
 L. J. Q. B. 278 ; 18 L. T. 82 ; 16 W. B. 1040 J.03, 116, 531 
 
 Reedv. Great Western By. Co., (1908), 25 T.L.E. 86 ... 373,383 
 
 Reed v. Harvey, (1880), 5 Q. B. D. 184 ; 49 L. J. Q. B. 295 ; 42 L. T. 
 
 511 ; 28 W. B. 423 ; 44 J. P. 474 265 
 
 Beedie v. L. & N.-W. By. Co., (1849), 4 Ex. 244 ; 20 L. J. Ex. 65 ; 
 
 6 Bail. Cas. 184 75,287 
 
 Reeks v. Kynoch, Ltd., (1901), 18 T. L. E. 34; 50 W. B. 113; 4 
 
 W. C.C. 14 386,408,412 
 
 Bees V. Penrikyber Navigation Co., Ltd., [1903] 1 K. B. 259 ; 72 L. J. 
 
 K. B. 85 ; 87 L. T. 661 ; 51 W. E. 247 ; 67 J. P. 231 ; 19 T. L. E. 
 
 113 ; 5 W. C. C. 117 465 
 
 Bees V. Powell Duffryn Steam Coal Co., (1900), 64 J. P. 164 ; 4 
 
 W.C.C.17 405 
 
 Bees V. Thomas, [1899] 1 Q. B. 1015; 68 L. J. Q. B. 539 ; 80 L. T. 
 
 578 ; 47 W. B. 504; 15 T. L. E. 301 ; 1 W. 0. C. 9 ... 92, 377, 389 
 Eeeve v. Gibson, [1891] 1 Q. B. 652 ; 60 L. J. Q. B. 451 ; 39 W. E. 420 247 
 Beeves v. Hearne, (1836), 1 M. & W. 323 ; 5 L. J. Ex. 156 ; 2 Gale 4 617 
 
 BeidD.Baxter, (1840), 7C1. &F. 261 432 
 
 Eeld u. BUsland School Board, (1901), 17 T. L. B. 626 246 
 
 Beid V. Fleming, (1901), 3 F. 1000 ; 38 So. L. B. 720 512 
 
 Rendall v. HiUs Dry Dock and Engineering Co.,itd., [1900] 2 Q. B. 
 
 245 ; 69 L. J. Q. B. 554 ; 82 L. T. 521 ; 48 W. B. 530 ; 64 J. P. 
 
 451 ; 16 T. L. B. 368 ; 2 W. C. 0. 40 615,616,689 
 
 Beynolds v. Accidental Insurance Co., (1870), 22 L. T. 820; 18 
 
 W. B. 1141 16 
 
 Beynolds u. HoUoway, (1898), 14 T. L. E. 551 184,211 
 
 Beynolds v. Thomas Tilling, Ltd., (1903), 19 T. L. E. 539; 20 T. 
 
 L. B. 57 86,98 
 
 Rhodes v. Forwood, (1876), 1 App. Cas. 256 ; 47 L. J. Ex. 396 ; 34 
 
 L. T. 890; 24 W. R. 1078 11 
 
 Rhodes v. Georgia Railroad Co., (1890), 20 Am. St. E. 362 93 
 
 BichardB v. West Middlesex Waterworks Co., (1885), 15 Q. B. D. 
 
 660; 54 L.J. Q.B. 551; 33 W. E. 902; 49 J. P. 631 147 
 
 Bichardson v. G. E. By. Co., (1876), 1 C. P. D. 342 ; 35 L. T. 351 ; 
 
 24W. R. 907 49 
 
 Richardson v. Mellish, (1824), 2 Bing. 229 ; 9 Moore, C. P. 435 ; 1 
 
 C. & P. 241; 3 L. J. (O. S.) C. P. 265; R. & M. 66; 27 R. R. 
 
 603 295 
 
 Rideal i;. G. W. Ry. Co., (1859), 1 F. & P. 706 116 
 
 Rigby V. Cox, [1904], 1 K. B. 358 ; 73 L. J. K. B. 80 ; 89 L. T. 717 ; 
 
 52 W. R. 195 ; 68 J. P. 195 ; 20 T. L. R. 136 ; 6 W. C. 0. 158 586, 
 
 639, 646 
 Rigby V. Cox (No. 2), [1904] 2 K. B. 208; 73 L. J. K. B. 690; 91 
 
 L. T. 72 ; 68 J. P. 385 ; 20 T. L. R. 461 ; 6 W. C. C. 161 586, 646 
 
 Rigby V. Hewitt, (1850), 5 Ex. 240 ; 19 L. J. Ex. 291 88 
 
 RUey V. Baxendale, (1861), 6 H. & N. 445 ; 30 L. J. Ex. 309 j 9 W. 
 
 R. 347 28 
 
 Biley v. Warden, (1848), 2 Ex. 59 ; 18 L. J. Ex. 120 268, 272, 278 
 
 Rimmer v. Premier Gas Engine Co., (1907), 23 T. L. R. 610 ... 507 
 Riou V. Rockport Granite Co., (1898), 171 Mass, 162 206 
 
Ixiv Table of Cases 
 
 PAGE 
 
 River Wear Commissioners v. Adamson, (1877), 2 A. 0. 743 ; 47 L. J. 
 
 Q. B. 193 ; 37 L. T. 543 ; 20 W. B. 217 64 
 
 Eivett-Camac, In re, Simmonds, Ex parte, see Simmonds, Ex 
 
 parte. 
 Bobb V. Bulloch, Lade & Co., (1892), 19 B. 971 ; 29 So. L. B. 832 24 
 
 Boberts D. Eastern Counties By. Co., (1859), 1 F. & P. 460 ... 115 
 
 Boberts v. Sheffield Corporation, see E. v. Sheffield Corporation. 
 Boberts v. Smith, (1857), 2 H. & N. 213 ; 26 L. J. Ex. 819 ; 8 Jur. 
 
 (N. S.)469; 5 W. E. 581 : 23 
 
 Boberts v. Woodward, (1890), 25 Q. B. D. 412 ; 59 L. J. M. C. 129 ; 
 
 63 L. T. 200 ; 38 W. B. 770 ; 55 J. P. 116 ; 17 Cox C. C. 139 ... 156 
 Bobertson v. Henderson, (1904), 6 P. 770 ; 41 So. L. E. 597 ; 12 So. 
 
 L. T. 113 ■ 592 
 
 Bobertson v. EusseU; (1885), 12 E. 634 ; 22 So. L. E. 404 137 
 
 Eobinson v. Barton Eocles Local Board, (1883), 8 App. Cas. 798; 
 
 53 L. J. Ch. 226 ; 50 L. T. 57 ; 32 W. E. 249 ; 48 J. P. 276 ... 452 
 Eobinson v. Canadian Pacific Ey. Co., [1892] A. C. 481 ; 61 L. J. 
 
 P. C. 79j 67L. T. 505; 8T. L. E. 722 132 
 
 Eobinson v. Eeid's Trustees, (1900), 2 P. 928 ; 37 Sc. L. E. 718 ... 70 
 
 Eobinson v. Watson, (1892), 20 E. 144 ; 30 Sc. L. B. 144 187 
 
 Eobinson v. W. H. Smith & Co., (1901), 17 T. L. E. 423 40, 93 
 
 Bobson V. Drummond, (1831), 2 B. & Ad. 303 ; 9 L. J. (0. S.) K. B. 
 
 187 10 
 
 Bobson V. Korth-Eastern Ey. Co., (1875), L. E. 10 Q. B. 271 ; (1876), 
 
 2 Q. B. D. 85 ; 46 L. J. Q. B. 50 ; 35 L. T. 535 ; 25 W. R. 418 79 
 
 Boe V. Birkenhead By. Co., (1851), 7 Ex. 36 ; 21 L. J. Ex. 9; 6 
 
 Bail. Cas. 795 142,143 
 
 Boe V. Eraser, (1899), 1 P. 1017 ; 36 Sc. L. E. 782 512 
 
 Boebucku. Norwegian Titanic Co., (1884), IT. L. E. 117 92 
 
 Eogers v. Cardiff Corporation, [1905] 2 K. B. 832 ; 75 L. J. K. B. 22 ; 
 
 93 L. T. 683 ; 54 W. E. 35 ; 70 J. P. 9.; 22 T. L. E. 9 ; 4 L. G. 
 
 E. 1; 8W.. CO. 51 499 
 
 Bogers 'v. Hadley, (1863), 2 H. & C. 227 ; 32 L. J. Ex. 241 ; 9 Jur. 
 
 (N. S.)898; 9L. T. 292; 11 W. E. 1074 358,611 
 
 Eohl V. Metropolitan Ey. Co., (1889), 7 T. L. E. 2 138, 372 
 
 Bolls D. MiUer, (1884), 27 Ch. D. 71; 53 L. J. Ch. 682; 50 L. T. 
 
 597; 32 W.E. 806; 48 J. P. 518 459 
 
 Bomney Marsh (Bailifis of) v. Trinity House, (1870), L. B. 5 Ex. 
 
 204 ; (1872), L. E. 7 Ex. 247 ; 41 L. j; Ex. 106 ; 20' W. B. 952 69 
 
 Booney i;, Allans, (1883), 10 E. 1224 ; 20 So. L. B. 812 ... 82, 96, 179 
 
 Boper v. Greenwood, (1900), 83 L. T. 471 ; 3 W. C. C. 23 404 
 
 Boss «. Keith, (1888), 16 E. 86 ; 26 Sc. L. E. 55 94 
 
 Eosenqvist v. Bowring & Co., Ltd., [1908] 2 K. B. 108; 77 L. J. 
 
 K. E. 545 ; 98 L. T. 773 ; 24 T. L. B. 504 ... 533 
 
 Bothwell «. Davies, (1903), 19 T. L. E. 423 577 
 
 Bourke b. White Moss Colliery Co., (1876), 1 C. P. D. 556 ; (1877), 
 
 2 C, p. D. 205 ; 46 L. J. C. P. 283 ; 36 L. T. 49 ; 25 W. E- 263 44, 484 
 Bouse 1J. Dixon, [1904] 2 K. B. 628; 73 L. J. K. B. 662; 91 L. T. 
 
 436; 68 J.P. 406; 20T. L. E. 553; 6 W. C. C. 44 ... 421,424 
 
 Eousillon V. Eousillon, (1880), 14 Ch. D. 351 ; 49 L. J. Ch. 338 ;' 42 
 
 L.T. 679; 28 W.E. 623; 44 J. P. 663 295 
 
Table of Cases Ixv 
 
 Rowbathom v. Wilson, (1857), 8 E. & B. 123 ; 27 L. J. Q. B 61 • 
 
 3 Jar. (N. S.) 1297 ; 5 W. B. 820, affirmid, (1860), 8 H. L. c'. 
 
 343;, 30 L. -J. Q. B. 49; .6 Jur. (N. S.) 965 ; 2 L. T. 642 ... 36, 295 
 
 Bowland «. Wright, (1908), 24 T. L. R. 852 391 
 
 Rowlands v. De Veoohi, (1882), 1 C. & E. 10 264 
 
 Rowley v. L. & N.-W. Ry. Co., (1873), L. R. 8 Ex. 221; 42 L J 
 
 Ex. 153; 29L. T. 180; 21 W.R. 869 113,556 
 
 " Ruby," The (No. 2), [1893] P. 59 ; 67 L. J. P. 23 ; 78 L. T. 235 ; 
 
 46 W. R. 687 ; 14 T. L. R. 184 267,452 
 
 RumboU V. Nunnery Colliery Co., (1899), 80 L. T. 42 ; 63 J. P. 132 • 
 
 1W.C.G.28 ... '402,633 
 
 Rumsey v. North Eastern Ry. Co., (1863), 14 C. B. N. S. 641; 32 
 
 L. J. .C. P. 244 ; 10 Jur. (N. S.) 203 ; 8 L. T. 666 ; 11 W. R. 911 295 
 Rushbrook v. Grimsby Palace Theatre, (1908), 99 L. T. 18 : 24 T. L 
 
 R.617 :. 272 
 
 Russell V. Holme, (1900), 108 Law Times newspaper, 373 ; 2 W. C. C. 
 
 153 567 
 
 Russell V. M'Clusky, (1900), 2 P. 1312 ; 37 So. L. R. 931 ... 520, 527 
 
 Russell ^;. M'Leish & M'Taggart, (1898), 35 So. L. R. 818 45,183 
 
 RyaUs B. Mechanics' Mills, (1889), 150 Mass. 190 132 
 
 Ryder v. Wombwell, (1868), L. R. 4 Ex. 32 ; 38 L. J. Ex. 8 ; 19 
 
 L. T. 491 ; 17 W. R. 167 78 
 
 Rylands v. Fletcher, see Fletcher v. Rylands. 
 
 Sadler v. Henlock, (1855), 4 E. & B. 570; 3 C. L. R. 760; 24 L. J 
 
 Q. B. 138 ; 1 Jur. (N. S.) 677 ; 3 W. R. 181 ... 10, 139, 277, 285, 447 
 
 " St. Cloud," The, (1863), Browning and Lush. 4 ; 8 L. T. 54 ... 397 
 St. Lawrence and Ottawa Railroad Co. v. Lett, (1884), 11 Can. 
 
 S. C. R. 422 109 
 
 Sandeman v. Sourr, (1866), L. R. 2 Q. B. 86 ; 8 B. & S. 50 ; 86 L. J. 
 
 Q.B. 58; 15L. T. 608; 15 W. R. 277 185 
 
 Sanders «. Barker, (1890), 6 T. L. R. 324 165 
 
 Sanderson v. Sanderson, (1877), 36 L. T. 847 108, 242 
 
 Saroh v, Blackburn, (1830), 4 C. & P. 297 ; M. & M. 505 50 
 
 Saunderson v. Judge, (1795), 2 H. Bl. 509 ; 3 R. B. 492 264 
 
 Saxton «. Hawkesworth, (1872), 26 L. T. 851 27 
 
 Scaramanga v. Stamp, (1880), 5 C. P. D. 295 ; 49 L. J. C. P. 674 ; 
 
 42 L. T. 840 ; 28 W. R. 691 ; 4 Asp. M. 0. 295 92 
 
 Soarr v. General Accident Assurance Corporation, Ltd., [1905] 
 
 1 K. B. 387 ; 74 L, J. K. B. 237 ; 92 L. T. 128 ; 21 T. L. R. 173 17 
 
 Schmidt v. Kansas City Distillery Co., (1886), 59 Am. R. 16 ... 97 
 
 Schneiders. Norris, (1814), 2 M. &S. 286; 15 B.B. 250 432 
 
 Sohofield V. Orrell Colliery Co., (1908), Times Newspaper, SOth Nov. 469 
 Soholfield V. Earl of Londesborough, [1896] A. C. 514 ; 65 L. J. Q. B. 
 
 593 ; 75 L. T. 254 ; 45 W. B. 124; 12 T. L. E. 604 67 
 
 "Schwan," The; "Albano," The, [1892] P. 419; 69 L. T. 84; 8 
 
 T. L. B. 425 ; 7 Asp. M. C. 347 16 
 
 Soott V. Foley, Aikman & Co., (1899), 5 Com. Cas. 53 ; 16 T. L. E. 
 
 55 54 
 
Ixvi TaUe of Gases 
 
 PAGE 
 Scott V. London and St. Katharine Docks Co., (1865), 3 H. & C. 
 
 596 ; 34 L. J. Ex. 220 ; 13 L. T. 148 ; 13 W. B. 410 ; 11 Jur. 
 
 (N. S.)204 75,180 
 
 Scott V. Shepherd, (1778), 1 Sm. L. C. (11th ed,), 454; 3 Wilson, 
 
 408 ; 9 Wm. BI. 892 51,67 
 
 Seddon v. Tutop, (1796), 6 T. B. 607 ; 1 Esp. 401 ; 3 B. B. 274 255, 256 
 Selmes v. Judge, (1871), L. E. 6 Q. B. 724; 40 L. J. Q. B. 287; 24 
 
 L. T. 904 ; 19 W. B. 1110 246 
 
 Senior v. Fountains & Burnley, Ltd., [1907] 2 K. B. 562 ; 76 L. J. K. 
 
 B. 928; 97L. T. 562; 23T. L. B. 634; 9-W. C. 0. 116 ... 472 
 
 Senior v. Ward, (1859), 1 E. & E. 385 ; 28 L. J. Q. B. 139 ; 7 W. B. 
 
 261 ; 5 Jur. (N. S.) 172 27,194,377 
 
 Seward v. "Vera Cruz," (1884), 10 App. Cas. 59; 54 L. J. P. 9; S2 
 
 L. T. 474; 33 W. B. 477; 49 J. P. 324; 1 T. L. B. Ill; 5 
 
 Asp. M. 0.386 103,119 
 
 Seymour v. Greenwood, (1861), 7 H. & N. 355 ; 30 L. J. Ex. 327 ; 
 
 4 L. T. 833 ; 9 W. B. 785 149 
 
 Shaffers v. General Steam Navigation Co., (1883), 10 Q. B. D. 356; 
 
 52 L. J. Q. B. 260; 48 L. T. 228; 31 W. B. 656; 47 J. P. 327... 135, 
 
 198, 199, 211, 212, 277 
 
 ShaUow V. Verdon, (1875), Ir. B. 9 0. L. 150 108 
 
 Sharman v. HoUiday & Greenwood, [1904] 1 K. B. 235 ; 73 L. J. K. B. 
 
 176 ; 90 L. T. 46 ; 68 J. P. 151 ; 20 T. L. E. 135 ; 6 W. C. C. 147 575 
 Sharman v. Sanders, (1853), 13 0. B. 166 ; 22 L. J. 0. P. 86 ; 17 Jur. 
 
 765;1W.E.152 274,278 
 
 Sharp V. Johnson & Co., Ltd., [1905] 2 K. B. 139 ; 74 L. J. K. B. 
 
 566 ; 92 L. T. 675 ; 53 W. E. 597 ; 21 T. L. E. 482 ; 7 W. C. 0. 28 382, 
 
 383 
 
 Sharp V. Pathhead Spinning Co., (1885), 12 E. 574 ; 22 Sc. L. B.'363 93 
 
 Sharp V. Powell, (1872), L. E. 7 0. P. 253 ; 41 L. J. C. P. 95 ; 26 
 
 L. T. 436; 20W. E. 584 55,65,66,70,223 
 
 Sharpington v. Pulham Guardians, [1904] 2 Oh. 449 ; 73 L. J. Oh. 
 
 777 ; 91 L. T. 739 ; 52 W. B. 617 ; 68 J. P. 510 ; 2 L. G. B. 
 
 1229 ; 20 T. L. E. 643 246 
 
 Shaw V. Hertfordshire County Council, [1899] 2 Q. B. 282 ; 68 L. J. 
 
 Q. B. 857 ; 81 L. T. 208 ; 63 J. P. 659 ; 15 T. L. B. 462 ... 247 
 
 Shea V. Drolenvaux, (1903), 19 T. L. E. 473 ; 88 L. T. 679 ; 5 W. 
 
 CO. 144 648 
 
 Shea i;. New York, &c., EaUroad Co., (1899), 173 Mass. 177 ... 236 
 
 Shearer v. MiUer & Sons, (1899), 2 F. 114 ; 37 So. L. B. 80 ; 7 Sc. 
 
 L. T. 231 605 
 
 Shepherd v. Midland By. Co., (1872), 25 L. T. 879 ; 20 W. E. 705 ... 171 
 
 Sheppard D. Gosnold, (1672), Vaugh. 159 15 
 
 Sherras 1). De Butzen, [1895] 1 Q. B. 918 ; 64 L. J. M. 0. 218 ; 72 
 
 L. T. 839; 43 W. E. 526; 59 J. P. 440; 11 T. L. B. 369; 18 
 
 Cox 0. 0. 157 ; 15 E. 388 156 
 
 Shields v. Murdook, (1893) , 20 E. 727 ; 30 W. B 650 24 
 
 Shiells V. Blackburne, (1789), 1 H. Bl. 158 ; 2 B. E. 750 63 
 
 Shirreff's Case, (1872), L. E. 14 Eq. 417; 42 L. T. Oh. 5 ; 20 W. E. 
 
 966 11 
 
 Silvester v. Cude, (1899), 15 T. L. E. 434 ; 1 W. 0. C. 120 ... 606, 618, 635 
 Simat «. Silva, (1887), 8 N. S. W. B. (Law) 415 137 
 
TMe of Gases Ixvii 
 
 PAGE 
 
 Simmonds, Ex parte, Carnao, In re, (1885), 16 Q. B. D. 308; 65 
 
 L. J. Q. B. 74 ; 54 L. T. 439 ; 34 W. B. 421 584 
 
 Simmons i;. Faulds, (1901), 65 J. P. 371 ; 17 T. L. B. 852 ; 3 W. C. 0. 
 
 169 446,447 
 
 Simmons v. Whits Brothers, [1899] 1 Q. B. 1005 ; 68 L. J. Q. B. 507 ; 
 
 80 L. T. 344 ; 47 W. B. 513 ; 15 T. L. B. 263 ; 1 W. C. G. 89 470, 549 
 Simms v. Eegistrar of Probates, [1900] A. 0. 323 ; 69 L. J. P. 0. 57 ; 
 
 82L. T. 433 362 
 
 Simpson v. Ebbw Vale Steel, Iron and Coal Co., [1905] 1 K. B. 453 ; 
 
 74 L. J. K. B. 347; 92 L. T. 282; 53 W. E. 390; 21 T. L. B. 
 
 209 ; 7 W. C. C. 101 266,443,444 
 
 Simpson v. Paton, (1896), 23 B. 590; 33 So. L. B. 413 ; 3 So. L. T. 
 
 309 182,185 
 
 Simson v. London General Omnibus Co., (1873), L. E. 8 C. P. 890; 
 
 42 L. J. C. P. 112 ; 21 W. B. 595 ; sub mm. Smith v. L. G. 0. Co., 
 
 28L. T. 560 73 
 
 Sinclair v.. Maritime Passengers Assurance Co., (1861), 3 El. & El. 
 
 478 ; 30 L. J. Q. B. 77 ; 4 L. T. 15 ; 7 Jur. (N.S.) 367 ; 9 W. B. 
 
 342 16 
 
 Singleton v. Eastern Counties By. Co., (1859), 7 0. B. N. S. 287 ... 80 
 
 1 V. Keen & Co., (1899), 1 W. C. C. 35 ; 1 W. 0. C. 119 ; Times, 
 
 21st February ; i6k., 19th June 656,657,658 
 
 Skelton v. L. & N.-W. By. Co., (1867), L. B. 2 C. P. 631; 36 L. J. 
 
 0. P. 249; 16L. T. 563; 15 W. B. 925 71,81 
 
 Skerritt v. Scallan, (1877), Ir. B, 11 C. L. 389 ; 11 Ir. L. T. 185 ... 23 
 
 SkUbeck v. Garbett, (1845), 7 Q. B. 846 ; 14 L. J. Q. B. 338 ; 9 Jur. 
 
 939 264 
 
 Skipp V. Eastern Counties By. Co., (1853), 9 Ex. 223 ; 23 L. J. 
 
 Ex. 23 ; 2 C. L. B. 185 6,8,27 
 
 Slade V. Victorian BaUways Commissioners, (1889), 15 Vict. L. B. 190 95 
 
 Slater v. Baker, (1767), 2 Wils. (C. P.) 359 63 
 
 Slater «. Mersereau, (1876), 64 N. Y. 138 286 
 
 Sleeman v. Barrett, (1864), 2 H. & C. 934 ; 33 L. J. Ex. 153 ; 9 L. T. 
 
 834 ; 12 W. B. 411 ; 10 Jur. (N.S.) 476 278 
 
 Sly D. Edgeley, (1806), 6 Esp. (N. P.) 6 285 
 
 Small V. Attwood, see Attwood v. Small. 
 
 Small V. M'Cormiok, (1899), 1 F. 883 ; 36 Sc. L. B. 700 ; 7 So. L. T. 
 
 35 522 
 
 Smith V. Anderson, (1880), 15 Oh. D. 247 ; 50 L. J. Ch. 39 ; 43 L. T. 
 
 329 ; 29 W. E. 21 459 
 
 Smith V. Associated Omnibus Co., [1907] 1 K. B. 916 ; 76 L. 7 K. B. 
 
 574 ; 96 L. T. 675 ; 71 J. P. 239 ; 23 T. L. E. 381 ... 270, 271 
 
 Smith V. Bailey, [1891] 2 Q. B. 403 ; 60 L. J. Q. B. 779 ; 65 L. T. 
 
 331; 40 W.E. 28; 56 J. P. 116 144 
 
 Smith V. Baker, [1891] A. 0. 325 ; 60 L. J. Q. B. 683 ; 65 L. T. 467 ; 
 
 40 W. E. 392 ; 55 J. P. 660 ; 7 T. L. E. 679 6, 8, 13, 28, 25, 29, 31, 33, 
 
 38, 87, 96', 133, 165, 168, 173, 193, 380 
 
 Smith u. Browne, (1891), 28 L. B. Ir. 1 91 
 
 Smith t!. Dowell, (1862), 3 F. & F. 238 27 
 
 Smith V. Forbes, (1897), 24 E. 699 ; 34 Sc. L. B. 513 ; 1 Sc. L. T. 341 23 
 
 Smith V. G. E. By. Co., (1866), L. B. 2 C. P. 4 ; 36 L. J. C. P. 22 ; 
 
 15 L. T. 246 ; 15 W. B. 131 79 
 
Ixviii Table of Gases 
 
 PAGE 
 
 Smith u. Harrison, (1839), 5 T. L. E. 406 159,205 
 
 Smith u. Howard, (1870), 22 L. T. 130 23 
 
 Smith V. Johnson, (1897), (unreported), see Dulieu v. White, [1901] 
 
 2 K. B. 675, and WUkinson «. Downton, [1897] 2 Q. B. 61 ... 84 
 
 Smith V. Lancashire and Yorkshire Ey. Co., [1899] 1 Q. B. 141 ; 68 
 
 L. J. Q. B. 51 ; 79 L. T. 533 ; 47 W. E. 146 ; 15 T. L. E. 64 ; 
 
 IW. C. G. 1 369,373,374,638 
 
 Smith V. L. &. S. W. Ey. Co., (1870), L. E. 6 C. P. 14; 
 
 40 L. J. C. P. 21 ; 23 L. T. 678 ; 19 W. E. 230 67,69 
 
 Smith V. L. G. 0. Co., see Simson v. L. G. 0. Go. 
 
 Smith V. Midland Ey. Co., (1887), 57 L. T. 813 ; 52 J. P. 262 ; 
 
 4T. L. E. 68 75 
 
 Smith V. Northleaoh Eural District Council, [1902] 1 Gb. 197 ; 
 
 71 L. J. Ch. 8; 85 L. T. 449; 50 W. E. 104; 66 J. P. 88; 
 
 18T. L. E. 30 247 
 
 Smith i>. S.-E. Ey. Co., [1896] 1 Q. B. 178 ; 65 L. J. Q. B. 219 ; 73 
 
 L. T. 614 ; 44 W. E. 291 ; 60 J. P. 148 80,81 
 
 Smith V. S. Normanton Colliery Co., Ltd., [1903] 1 K. B. 800; 
 
 72 L. J. K. B. 76 ; 88 L. T. 5 ; 51 W. E. 209 ; 67 J. P. 381 ; 
 
 19 T. L. E. 128 ; 5 W. C. G. 14 375,387 
 
 Smith V. Steele, (1875), L. E. 10 Q. B. 125 ; 44 L. J. Q. B. 60; 32 
 
 L. T. 195 ; 23 W. E. 388 14,54 
 
 Smithwhite v. Moore & Sons, Ltd., (1898), 14 T. L. E. 461 21 
 
 Smout ^). Ilbery, (1842), 10 M. & W. 1 ; 12 L. J. Ex. 357 12 
 
 " Snark," The, [1900] P. 105 ; 69 L. J. P. 41 ; 82 L. T. 42 ; 48 W. E. 
 
 279; 16T. L. E. 160; 9 Asp. M. C. 50 287 
 
 Sneddon v. Glasgow Coal Co., (1905), 7 P. 485; 42 Sc. L. E. 365 ; 
 
 12Sc. L. T. 717 405,412 
 
 Sneddon v. Eobert Addie & Sons Colliery Co., Ltd., (1904) , 6 P. 992 ; 
 
 41So. L. E. 826 463,464,465 
 
 Sneei). Durkie, (1903), 6P. 42; 41 Sc. L. E. 39 73 
 
 Sneesby v. Lancashire and Yorkshire Ey. Co., (1874), L. E. 9 Q. B. 
 
 263; (1875), 1 Q. B. D. 42; 45 L.J. Q.B.I 70 
 
 Snook V. Grand Junction Waterworks Co., (1886), 2 T. L. E. 308 ... 61 
 
 Snowden v. Baynes, (1890), 25 Q. B. D. 193 ; 59 L. J. Q. B. 325 ; 
 
 38 W. E. 744 ; 55 J. P. 133 208,219,220,221 
 
 Southport (Mayor of) v. Morriss, [1893] 1 Q. B. 359 ; 62 L. J. M. G. 
 
 47 ;■ 68 L. T. 221; 41 W. E. 382 ; 57 J. P. 231 ; 7 Asp. M. G. 
 
 279 452 
 
 South Staffordshire Tramways Go. v. Sickness and Accident Assur- 
 ance Association, [1891] 1 Q. B. 402 ; 60 L. J. Q. B. 47 ; 63 
 
 L. T. 807 ; 55 J. P. 168 ; 7 T. L. E. 267 16 
 
 Southcote V. Stanley, (1856), 1 H. & N. 247 ; 25 L. J. Ex. 839 ... 5, 293 
 Southern Pacific Co. «. Seley, (1894), 152 U. S. (45 Davis) 145 ... 159 
 
 Southhook Pire-Clay Co., Ltd. v. Laughland, [1908] S. C. 831 ; 
 
 45Sc. L. E. 664 576 
 
 Spacey v. Dowlais Gas and Coke Co., [1905] 2 K. B. 879; 75 L. J. 
 K. B. 5 ; 93 L. T. 685 ; 54 W. E. 138 ; 22 T. L. E. 29 ; 
 8 W. C. C. 29 499 
 
 Spaight V. Tedcastle, (1881), 6 App. Gas. 217 ; 44 L. T. 589 ; 29 
 
 W. E. 761 ; 4 Asp. M. G. 406 90 
 
Table of Cases Ixix 
 
 PAGE 
 
 Spinoer v. Watts, (1889), 23 Q. B. D. 350 ; 58 L. J. Q. B. 383 ; 
 
 61L. T. 711; 37W.R.676 597 
 
 Spittal V. Glasgow Corporation, (1904), 6 F. 828 ; 41 So. L. R. 629 ... 247 
 Squire «. Midland Laoe Co., Ltd., [1905] 2 K. B. 448; 74 L. J. 
 
 K. B. 614 ; 93 L. T. 29 ; 53 W. B. 653 ; 69 J. P. 257 ; 21 T. L. E. 
 
 466 278,448 
 
 Stables i;. Bley, (1825),1 0. & P. 614 144 
 
 Stalker v. WaUaoe, (1900), 2 F. 1162 ; 37 So. L. B,. 898 493 
 
 Stamp «. WilUams, (1896), 12 T. L. B. 516 200 
 
 Stanland v. N. E. Steel Co., cited in Williams v. Ocean Coal Co., 
 
 Ltd., [1907] 2 K. B. 425 note 3 463 
 
 Stanley v. Powell, [1891] 1 Q. B. 86 ; 60 L. J. Q. B. 52 ; 63 L. T. 
 
 809; 89W. B. 76; 55 J. P.327; 7T. L. B. 25 694 
 
 Stanton «. Peroival, (1855), 5 H. L. 0. 257 ..; 81 
 
 Stanton v. Sorutton, (1898), 62 L. J. Q. B. 405 ; 9 T. L. B. 236 ; 
 
 5B. 244 165,173,180 
 
 Staples ■«. Accidental Death Insurance Co., (1861), 10 W. B. 59 ... 257 
 Stead V. Moore, (1900), 2 W. C. C. 96; Times newspaper, 13th, 
 
 June 493 
 
 Steams u. Ontario Spinning Co., (1898), 184 Pa. St. 823 74 
 
 Stedman «. Baker & Co., (1896), 12 T. L. B. 451 153 
 
 Steel V. Cammell, Laird & Co., [1905] 2K.B. 232; 74L.J. K.B. 
 
 610 ; 93 L. T. 357 ; 53 W. B. 612 ; 21 T. L. B. 490 ; 7 W. C. C. 9 348, 
 
 355,357,365,366 
 Steel V. Oakbank Oil Co., (1902), 5 P. 244 ; 40 So. L.iB. 205 ; 10 Sc. 
 
 L.T.505... , 576 
 
 Steele «. G. N. By. Co., (1890) 26 L. B. Ir. 96 104 
 
 Stephen v. Thurso Police Commissioners, (1876), 8 B. 535 287 
 
 Stephens v. Austral Otis Engineering Co., (1902), 27 Vict. L. B. 724 254 
 Stephens v. Dudbridge Ironworks Co., Ltd., [1904] 2 K. B. 225 ; 73 
 
 L. J. K. B. 739; 90 L. T. 888; 52 W. E. 644; 68 J. P. 437; 
 
 20 T. L. E. 492 ; 6 W. C. C. 48 116,118,431,432,592 
 
 Stephens v. Myers, (1830), 4 C. & P. 349 ; 84 B. B. 811 5 
 
 Stevens c. M'Kenzie, (1899), 25 Vict. L. B. 115 92 
 
 Stewart V. Caledonian By. Co., (1870), 8 Maoph. 486 ; 7 So. L. B. 277 172 
 Stewart v. G. W. By. Co., (1865), 2 De G. J. & S. 319 ; 18 L. T. 79 ; 
 
 13 W. B. 907 ; 11 Jur. (N. S.) 627; 46 Eng. Eep. 339 ... 116, 117 
 
 Stiefsohn D. Brook, (1889), 5 T. L. E. 684 94 
 
 Stiles V. Cardiff Steam Navigation Co., (1863), 33 L. J. Q. B. 310; 
 
 10 Jur. (N. S.) 1119 ; 10 L. T. 844 ; 12 W;. E. 1080 50 
 
 Stimpson v. Wood, (1888), 57 L. J. Q. B. 484 ; 89 L. T. 218 ; 36 
 
 W. E. 734 ; 52 J. P. 822 ; 4 T. L. B. 589 104 
 
 Stockdale v. Nicholson, (1867), L. B. 4 Eq. 359 ; 36 L. J. Ch. 793 ; 
 
 16 L. T. 767; 15 W. E. 986 289 
 
 Stocken V. Collin, (1841), 7 M. & W. 515 ; 9 C. & P. 653 ; 10 L. J. 
 
 Ex.227 265 
 
 Stone 13. Hyde, (1882), 9 Q. B. D. 76 ; 51 L. J. Q. B. 452 ; 46 L. T. 421 ; 
 
 30 W. Ei 816 ; 46 J. P. 788 260 
 
 Storey v. Ashton, (1869), L. B. 4 Q. B. 476 ; 10 B. & S. 337 ; 38 
 
 L. J. Q. B. 223 ; 17 W. E. 727 13,146,149 
 
 Stormont u. Workman, Clark & Co., (1899), 38 Ir. L. T. newspaper, 165 649 
 
 B E.L. / 
 
578 
 
 Ixx Table of Cases 
 
 PAGE 
 
 Stretton «. Holmes, (1890), 19 Ont. E. 286 54 
 
 Stride v. Diamond Glass Co., (1895), 26 Out. B. 270 172, 187 
 
 Stuart V. Evans, (1883), 49 L. T. 138 ; 31 W. B. 706 192, 193, 278 
 
 Styles V. Cardifi Steam Navigation Co., see Stiles v. Cardiff, etc., Co. 
 Sullivan v. Bennett Steamship Co., Ltd., (1898), Times newspaper, 
 
 10th August ^ 
 
 SuUivan v. Creed, [1904] 2 I. B. 317 ; 37 Ir. L. T. 254 59 
 
 Sutton V. L. 0. & D. By. Co., (1896), 12 T. L. B. 425 443 
 
 Sutton V. Johnstone, see Johnstone v. Sutton. 
 
 Sutton V. Sutton, (1882), 22 Ch. D. 511 ; 52 L. J. Ch. 333 ; 48 L. T. 
 
 95;31W.B.369 ^^^ 
 
 Swainson v. N.-E. Bv. Co., (1878), 3 Ex. D. 341 ; 47 L. J. Q. B. 372 ; 
 
 38 L. T. 201 ; 26 W. E. 413 5,42,139 
 
 Swan u. Blair, (1835), 3 CI. & F. 610 295 
 
 Swansea Improvements and Tramway Co. v. Swansea Urban 
 
 Sanitary Authority, [1892] 1 Q. B. 357; 61 L. J. M. C. 124; 
 
 66 L. T. 119 ; 40 W. B. 283 ; 56 J. P. 248 238 
 
 Sweeney v. Duncan, (1892), 19 B. 870 ; 29 Sc. L. B. 777 133 
 
 Sweeney v. M'Gilvray, (1886), 14 B. 105 ; 24 Sc. L. B. 91 ... 199, 203, 
 
 205, ^IX, uta 
 
 Sweeney v. Pumpherston Oil Co., (1903), 5 P. 972 ; 40 Sc. L. B. 721 ; 
 
 llSc.L. T. 279 
 
 Sword «. Cameron, (1839), 1 Dunlop 493 23,33 
 
 Sykes v. N.-E. By. Co., (1875), 44 L. J. 0. P. 191 ; 32 L. T. 199 ; 
 
 23W. B. 473 • 110 
 
 Tasker v. Shepherd, (1861), 6 H. & N. 575 ; 30 L. J. Ex. 207 ; 4 L. T. 
 
 19;9W. B. 476 10 
 
 Tarrant v. Wehb, (1856), 18 C. B. 797 ; 25 L. J. 0. P. 261 ; 4 W. B. 640 24 
 
 Tarry v. Ashton, (1876), 1 Q. B. D. 314; 45 L. J. Q. B. 260; 34 
 
 L. T. 97 ; 24 W. B. 581 26,29,77,180,196 
 
 Tate V. Latham & Son, [1897] 1 Q. B. 502; 66 L. J. Q. B. 349; 76 
 
 L. T. 336 ; 45 W. B. 400 ; 13 T. L. B. 251 25, 167, 176 
 
 Taylor v. Hampstead ColUery Co., [1904] 1 K. B. 838 ; 73 L. J. K. B. 
 469; 90L.T.363; 52W.B,417; 68J.P.300; 20T.L.E.838; 
 
 6W. C. C. 34 420,436,437 
 
 Taylor v. Manchester, Sheffield and Lincolnshire By. Co., [1895] 
 1 Q. B. 134 ; 64 L. J. Q. B. 6 ; 71 L. T. 596 ; 43 W. B. 120 ; 
 
 59 J. P. 100; IIT. L.B. 27; 14B. 34 4,416 
 
 Tench v. Pish & Sons, (1901), 111 L. T. newspaper, 42 ; 3 W. 0. G. 140 498 
 Thomas D. Great Western OoiUery Co., (1894), 10 T. L. B. 244 ... 19,60, 
 
 133, 157 
 Thomas v. Quartermaine, (1887), 18 Q. B. D. 685 ; 56 L. J. Q. B. 
 
 340 ; 57 L. T. 537 ; 35 W. B. 555 ; 51 J. P. 516 ; 3 T. L. B. 495 32 
 
 37, 39, 49, 135, 136, 156, 157, 162, 163, 164, 192, 193, 228, 293 
 Thomas v. Winchester, (1852), 8 N. Y. 397 ; Bigelow, Leading Cases 
 
 on Torts, 602 ... 54 
 
 " Thomas Powell," The v. " Cuba," The, (1865), 2 Mar. Law Cas. 344 ; 
 
 14L. T. 603 16 
 
 Thompson v. Ashington Coal Co., Ltd., (1901), 84 L. T. 412; 65 
 
 J. P. 356; 17T. L. B. 345; 3W. C. 0. 21 350 
 
Table of Cases Ixxi 
 
 PAGE 
 
 Thompson v. City Glass Bottle Co., [1902] 1 K. B. 233 ; 71 L. 7. K. 
 
 B. 145 ; 85 L. T. 661 ; 18 T. L. E.. 69 189,190,191 
 
 Thompson v. North-Eastern Marine Engineering Co., Ltd., [1903] 
 
 1 K. B. 428 ; 72 L. 5 K. B. 222 ; 88 L. T. 239 ; 19 T. L. E. 
 
 206 ; 5 W. C. C. 71 682,688 
 
 Thompson v. N.-B. By. Co., (1860), 2 B. & S. 106; (1862), ift. 119; 
 
 81 L. J. Q. B. 194 ; 6 L. T. 127 ; 10 W. R. 404 ; 8 Jur. (N. S.) 
 
 991 87,682 
 
 Thompson v. Schmidt, (1891), 56 J. P. 212 ; 8 T. L. B. 120 ... 63 
 
 Thompson v. Southern Coal Co., (1894), 15 N. S. W. L. B. (Law) 162 243 
 
 Thompson t). Wright, (1892), 22 Ont. B. 127 180 
 
 Thomson v. Diok, (1892), 19 E. 804; 29 So. L. B. 729 134 
 
 Thomson v. Robertson, (1884), 12 E. 121 ; 22 So. L. B. 97 260 
 
 Thomson v. Scott, (1897), 25 E. 54; 85 So. L. B. 98 166 
 
 Thomson v. Thomson's Trustee, (1889), 16 B. 333 ; 26 So. L. B. 217 112 
 Thorogood v. Bryan, (1849), 8 C. B. 115 ; 18 L. J. 0. P. 336 64, 87, 97 
 
 Thorpe v. Cooper, (1828), 5 Bing. 116 ; 2 M. & P. 245 ; 2 Y. & J. 445 256 
 Tigue V. Colville & Sons, (1905), 43 So. L. B. 129, see Colville & Sons 
 
 V. Tigue. 
 
 Tirlot V. Morris, (1612), 1 Bulst. 134 ; 80 Eng. Bep. 828 103 
 
 Tod or Todd v. Caledonian Ey. Co., (1899), 1 P. 1047 ; 36 So. L. E. 
 
 784; 7Sc. L. T. 85 384 
 
 Toleman v. Portbury, (1870), L. B. 5 Q. B. 288 ; 39 L. J. Q. B. 136 ; 
 
 22 L. T. 33 ; 18 W. B. 579 73 
 
 Tolhausen v. Davies, (1888), 57 L. J. Q. B. 392 ; 59 L. T. 436; 52 
 
 J. P. 804; 58 L. J. Q. B. 98 ; 5 T. L. B. 18 73, 94 
 
 Tong V. G. N. By., (1902), 18 T. L. B. 566 ; 86 L. T. 802 ; 66 J. P: 
 
 677 ; 4 W. 0. 0. 40 688 
 
 Toomey or Tooney v. London, Brighton and South Coast Ey. Co., 
 
 (1857), 3 C. B. N. S. 146 ; 27 L. J. C. P. 39 ; 6 W. B. 44 ... 78 
 
 Toosey «. Williams, (1827), M. & M. 129 264 
 
 Tottenham Local Board v. Bowell, (1876), 1 Ex. D. 514 ; 46 L. J. 
 
 Ex. 432 ; 85 L. T. 887 ; 25 W. B. 135 424 
 
 Tozeland v. West Ham Union, [1907] 1 K. B. 920 ; 76 L. J. K. B. 
 
 514; 96 L. T. 519; 71 J. P. 194; 23 T. L. E. 325; 5 L. G. E. 
 
 507 448 
 
 Trail v. Kelman, (1887), 15 B. 4 ; 25 Sc. L. B. 8 244 
 
 Traill v. Actieselskabat Dalbeattie, Ltd., (1904), 6 P. 798 ; 41 So. 
 
 L. E. 614 108 
 
 Treharne v. Ocean Coal Co., Ltd., (1905), 21 T. L. B. 621 434 
 
 Trenear v. WeUs & Co., (1900), 8 W. C. C. 58 ; 109 L. T. newspaper, 
 
 302 611 
 
 Trotter i>. Maclean, (1879), 13 Ch. D. 574; 49 L. J. Ch. 256; 42 
 
 L. T. 118 ; 28 W. B. 244 264 
 
 Tucker D. Chaplin, (1848), 2 C. & K. 730 103 
 
 Tuff V. Warman, (1857), 2 0. B. N. S. 740 ; (1858), 5 0. B. N. S. 
 
 573 ; 27 L. J. C. P. 322 ; 5 Jur. (N. S.) 222 ; 6 W. B. 693 ... 86 
 
 TuUis iJ.'jacBon, [1892] 3 Ch. 441; 61 L. J. Ch. 655; 67 L. T. 840; 
 
 41 W. E. 11 ; 8 T. L. E. 691 295 
 
 Tunney v. Midland Ey. Co., (1866), L. E. 1 C. P. 291 ; 12 Jur. (N. S.) 
 
 691 22,138,372 
 
Ixxii Table of Gases 
 
 FAOE 
 
 Turley «. Daw, (1906), 94 L. T. 216 ; 22 T. L. E. 231 247 
 
 TurnbuU v. Lambton Collieries, Ltd., (1900), 82 L. T. 589 ; 64 J. P. 
 
 404 ; 16 T. L. B. 369 ; 2 W. C. C. 84 498, 506, 507 
 
 Turner v. Goldsmith, [1891] 1 Q. B. 544; 60 L. J. Q. B. 247; 64 
 
 L. T. 301 ; 39 W. R. 547 ; 7 T. L. R. 283 11 
 
 Turner v. Q. E. By. Co., (1875), 38 L. T. 431 44, 139, 140 
 
 Turner v. Beynall, (1863), 14 C. B. N. S. 328 ; 32 L. J. 0. P. 164 ; 
 
 8 L. T. 281 ; 11 W. B. 700 ; 9 Jur. (N. S.) 1077 678 
 
 Turner v. Sawdon, [1901] 2 K. B. 653 ; 70 L. J. K. B. 897 ; 85 L. T. 
 
 222 ; 49 W. B. 712 ; 17 T. L. B. 645 10 
 
 Turners, Ltd. w. Gillies or Whitefield, (1904), 6 P. 822 ; 41 So. L. B. 
 
 631 ; 12 Sc. L. T. 131 ... 464,465,468 
 
 Turvey v. Brintons, Ltd., [1904] 1 K. B. 328, afBrmed sub now,. 
 
 Brintons, Ltd., I). Turvey, 2.U 847,348 
 
 Tyler, In re, Ofaeial Beceiver, Ex parte, [1907] 1 K. B. 865 ; 76 
 
 L. J. K. B. 541 ; 97 L. T. 30 ; 23 T. L. B. 828 ; 14 Manson, 73 584 
 
 Union Pacific Railroad Co. v. Port, (1878), 17 Wall. (U. S.) 553 ... 40, 208 
 
 Union Pacific By. Co. v. Botsford, (1890), 141 U. S. (34 Davis) 250 675 
 
 Union Pacific By. Co. v. McDonald, (1893), 152 U. S. (45 Davis) 
 
 262 93 
 
 Union Steamship Co., Ltd. v. Claridge, [1894] A. C. 185 ; 63 L. J. 
 
 P. C. 56 ; 70 L. T. 177 ; 58 J. P. 366 ; 7 Asp. M. 0. 412 ; 6 B. 
 
 434 44,140,286 
 
 United Collieries v. Gavin, (1899), 2 P. 60 ; 37 So. L. R. 47 ... 638 
 
 Valenti v. Wm. Dixon, [1907] S. 0. 695; 44 So. L. R. 532 118 
 
 Vamplew v. Parkgate Iron and Steel Co., [1903] 1 K. B 851- 72 
 
 L. J. K. B. 575; 88 L. T. 756; 51 W. R. 691; 67 D". P. 417- 
 
 19T. L. R. 421; 5W. C. C. 114 446,447 
 
 Van De Bynde v. Ulster By. Co., (1871), Ir. R. 5 C. L. 328 ... 154 
 
 Vaughan «. Booth, (1852), 16 Jui. 808 268 
 
 Vaughan v. Cork and Youghal Ry. Co., (1860), 12 Ir. C. L. R. 297 29, 34 
 Vaughan v. Niooll, (1906), 8 P. 464 ; 43 Sc. L. B. 351 ; 13 Sc L T 
 
 804 ■..: 407 
 
 Vaughan v. Taff Vale By. Co., (1860), 5 .H. & N. 679 ; 29 L J Ex 
 
 247 ; 2 L. T. 394 ; 8 W. B. 549; 6 Jui. (N. S.) 899 ... " ..[ 49 
 
 63 
 
 Venables v. Smith, (1877), 2 Q. B. D. 279; 46 L. J. Q. B. 470- 36 
 L. T. 509; 25W. B. 584 ... ... • *'"> °o 
 
 Vera Cruz, The, (No. 2), see Seward v. The Vera Cruz. 
 
 Vickery v. G. E. Ry. Co., (1898), 79 L. T. 121 ; 14 T. L. B. 562 138, 372 
 
 Vicksburg Eailroad Co. «. Putnam, (1886), 118 U. S. 545 114 
 
 Victorian By. Commissioners v. Coultas, (1888), 13 Ann Cas 999 ■ 
 
 57 L. J. P. C. 69 ; 58 L. T. 890 ; 87 W. B .129 ; 52 J P 555 '■ 
 
 4T. L. B. 286 i.r.oiM, 
 
 "' *•■ ••• •.( o4 
 
 ViUar v. GUbey, [1907] A. C. 139 ; 76 L. J. Ch. 339: 96 L T '511 ■ 
 
 23T. L. B. 892 ov, ^o u. 1. c\l, 
 
 ••■ •■■ ... 1U4 
 Vose V. Lancashire and Yorkshire Ry. Co., (1858> 2 H * TSr 70H . 
 
 27 L. J. Ex. 249 ; 4 Jur. (N. S.) 364; 6 W. B.^295 . .! 227 
 
Table of Cases Ixxiii 
 
 PAGE 
 
 Wainwright u. Oriohton, (1904), 117 Law Times newspaper, 2 ... 475 
 Waits V. N.-E. Ry. Co., (1858), E. B. & E. 719 ; (1859), ib. 723 ; 28 
 
 L. J. Q. B. 258 ; 5 Jur. (N. S.) 936 ; 7 W. R. 311 95, 96 
 
 Wakelin v. L. & S.-W. Ry. Co., (1886), 12 App. Gas. 41 ; 56 L. J. 
 
 Q. B. 229 ; 55 L. T. 709 ; 35 W. R. 141 ; 51 J. P. 404 ; 3 T. L. R. 
 
 233 72,76,84,98,371 
 
 Wakeman v. Robinson, (1823), 1 Bing. 213 ; 8 Moore (C. P.) 63 ; 1 
 
 L. J. (O.S.) 0. P. 70; 25R.R. 618 ... 16 
 
 Waldook V. Winfield, [1901] 2 K. B. 596 ; 70 L. J. K. B. 925 ; 85 
 
 L. T. 202; 17T. L. R. 661 45,141 
 
 Walker 1). Gann, (1826), 7 D. & R. 769 257 
 
 Walker v. Goe, (1858), 3 H. & N. 395 ; (1859), 4 H. & N. 350 ; 28 
 
 L. J. Ex. 184 ; 6 Jur. (N. S.) 737 ; 7 W. R. 289 68 
 
 Walker v. Olsen, (1882), 9 R. 946 ; 19 So. L. R. 708 179 
 
 WaUaoe v. Culter Paper MUls Co., Ltd., (1892), 19 R. 915 ; 29 So. 
 
 L. B. 784 82,165 
 
 Wallace v. Glenboig Union Fireclay Co., [1907] S. C. 967 ; 44 So. 
 
 L. R. 726 412 
 
 Wallace v. R. W. Hawthorne, Leslie & Co., Ltd., [1908] S. C. 713 ; 
 
 45Sc. L. R. 547 431,703 
 
 WaUey u. Holt (1876), 35 L. T. 631 ... 281 
 
 WaUis V. Smith, (1882), 21 Ch. D. 243 ; 52 L. J. Ch. 145 ; 47 L. T. 
 
 889 ; 31 W. R. 214 295 
 
 Walsh V. Whiteley, (1888), 21 Q. B. D. 371 ; 57 L. J. Q. B. 586 ; 36 
 
 W. R. 876; 53 J. P. 38; 4 T. L. R. 694 159, 160, 161, 
 
 166, 167, 175, 176, 177 
 Walter u. Haynes, (1824), Ry. & M. 149 265 
 
 Walton V. London, Brighton and South Coast By. Co., (1866), H. & R. 
 
 424; 14L. T. 258; 14 W. R. 395 86 
 
 Warburton v. G. W. Ry. Co., (1866), L. R. 2 Ex. 30 ; 4 H. & C. 695 ; 
 
 36 L. J. Ex. 9 ; 15 L. T. 361 ; 15 W. R. 108 42 
 
 Ward V. L. & N.-W. Ry. Co., (1901), 111 Law Times newspaper, 209 ; 
 
 3W. C. C. 192. 561 
 
 Ward V. London General Omnibus Co., (1873), 42 L. J. C. P. 265 ; 
 
 28L. T. 850 148,149 
 
 Ware, In re, Cumberlege v. Cumberlege-Ware, (1890), 45 Ch. D. 
 
 269 ; 59 L. J. Ch. 717 ; 63 L. T. 52 ; 88 W. R. 767 289 
 
 Warnoken v. R. Moreland & Son, (1908), Times newspaper, 1st Dec. 578 
 
 WarnookK. Glasgow Iron and Steel Co., (1904), 6 P. 474; 41 So. 
 
 L. R. 359 ; 11 So. L. T. 697 351 
 
 Warren v. Warren, (1834), 1 C. M. & R. 250 ; 4 Tyr. 850 ; 3 L. J. 
 
 Ex.294 265 
 
 Warren v. WUder or WUdee, (1872) W. N. 87 ; 41 L. J. C. P. 104, n. 22 
 
 Washburn and Moen Manufacturing Co. v. Patterson, (1885), 29 Ch. 
 
 D. 48; 54 L. J. Ch. 643 ; 52 L. T. 705 ; 33 W. R. 403 ...' ... 191 
 
 Waterson v. Murray, (1884), 11 R. 1036 ; 21 So. L. R. 695 159 
 
 Watson «. M'Leish, (1898), 25 R. 1028 184 
 
 Watson V. Weekes, (1887), cited in Tolhausen v. Davis, (1888), 57 
 
 L. J. Q. B. at p. 394 73 
 
 Watt V. Neilson, (1888), 15 R. 772 ; 25 So. L. R. 576 29 
 
Ixxiv Table of Oases 
 
 PAGE 
 
 Wear Eiver Commissioners v. Adamson, (1877), 2 App. Cas. 743 ; 47 
 
 L. J. Q. B. 193 ; 37 L. T. 543 ; 26 W. B. 217 o* 
 
 Weaver v. Floyd, (1852), 21 L. J. Q. B. 151 ; 16 Jur. 289 ... 275, 278 
 
 Weaver v. Ward, (1616), Hob..l34 ; 80 Eng. Bep. 284 50, 52 
 
 Weavings v. Kirk & Eandall, [1904] 1 K. B. 213 ; 78 L. J. K. B. 77 ; 
 89 L. T. 577; 52 W. B. 209; 68 J. P. 91; 20 T. L. B. 152, 
 
 6W. 0. 0. 95 *93 
 
 Webb V. Bennie, (1865), 4 P. & F. 608 26, 30, 179, 184 
 
 Weblin v. BaUard, (1886), 17 Q. B. D. 122 ; 55 L. J. Q. B. 395 ; 54 
 
 L. T. 532 ; 34 W. B. 455 ; 50 J. P. 597 ; 2 T. L. E. 444... 134, 158, 159, 
 
 192, 196, 293, 294 
 
 Webster v. Foley, (1892) , 21 Can. S. 0. B. 580 193 
 
 Webster v. L. & N.-W. By. Co., (1901), 3 W. C. C. 52 ; 111 Law 
 
 Times newspaper, 209 ^'^^ 
 
 Webster v. Sharp & Co., [1904] 1 K. B. 218 ; 73 L. J. K. B. 141 ; 89 
 
 L. J. 627 ; 52 W. B. 275 ; 68 J. P. 140 ; 20 T. L. E. 121 ; 6 W. 0. C. 
 
 120 ; affirmed by consent, [1905] A. C. 284 ; 74 L. J. K. B. 776 ; 
 
 92L. T. 373 ... ... 560,570,571 
 
 Weems v. Mathieson, (1861), 4 Maoq. (H. L. So.) 215 ; 1 Paterson 
 
 1044 ... ... 20,161,178,227 
 
 Weir V. Coltness Iron Co., (1889), 16 B. 614 ; 26 So. L. E. 470 ... 107 
 
 Welolii;. Grace, (1897), 167 Mass. 590 186 
 
 Welfare v. London and Brighton By. Co., (1869), L. B. 4 Q. B. 693 ; 
 
 38 L. J. Q. B, 241 ;' 20 L. T. 743 ; 17 W. B. 1065 77 
 
 Wells V. Gas Float Whitton, (No. 2), [1897] A. C. 337 ; 66 L. J. Adm. 
 
 99;76L. T. 663 452 
 
 Welland v. G. W. By. Co., (1900), 16 T. L. E. 297 ; 2 W. 0. 0. 145 640, 
 
 ' 643,645 
 
 Welshw. Moir, (1885), 12B. 590; 22 So. L. E. 381 159 
 
 West Ham Local Board v. Maddams, (1876), 40 J. P. 470 ; 1 Ex. D. 
 
 516, u. ; 33 L. T. 809 424 
 
 Whalley v. Lancashire and Yorkshire Ey. Co., (1884), 13 Q. B. D. 
 
 131 ; 53 L. J. Q. B. 285 ; 50 L. T. 472 ; 32 W. B. 711 ; 48 J. P. 
 
 500 69 
 
 Whatlevt). HoUoway, (1890), 54 J. P. 645 ; 6 T. L. E. 353 ... 132, 222, 230, 
 
 231, 232 
 
 Whatman v. Pearson, (1868), L. B. 3 C. P. 422 ; 37 L. J. C. P. 156 ; 
 
 18 L. T. 290 ; 16 W. B. 649 55,147 
 
 Wheale v. Bhymney Iron Co., Ltd., [1902] 1 K. B. 57 ; 71 L. J. 
 K. B. 28; 85 L. T. 472; 50 W. E. 115; 65 J. P. 804; 18 
 T. L. E. 23 ; 4 W. C. C. 120 568 
 
 Whitamore t). Waterhouse, (1830), 4 0. & P. 383 693 
 
 Whitby V. Brock, (1888), 4 T. L. B. 241 59 
 
 Whitoombe & Tombs v. Taylor, (1907), 27 N. Z. L. E, 237 542 
 
 Wh ite V. Parker, (1889), 16 Can. S. C. B. 699 115 
 
 Whitechuroh (George), Ltd. v. Cavanagh, [1902] A. 0. 117 ; 71 L. J. 
 
 K. B. 400; 85 L. T. 349 ; 50 W. E. 218 ; 9 Mans. 351 143 
 
 Whitehead v. Eeader, [1901] 2 K. B. 48 ; 70 L. J. K. B. 546 ; 84 
 
 L. T. 514 ; 49 W. B. 562 ; 65 J. P. 403 ; 17 T. L. E. 387 ; 
 
 3W. G.C.40 375,386,412 
 
Table of Gases Ixxv 
 
 PAGE! 
 
 Whiteley i;. Armitage, (1864), 13 W. E. 144 275 
 
 Whitfield u. Lord Le Despenoer, (1778), 2 Oowp. 754 288 
 
 Whitley, Partners, Ltd., In re, (1886), 82 Ch. D. 837 ; 55 L. J. Ch. 
 
 540 ; 54 L. T. 912 ; 34 W. R. 505 ; 2 T. L. B. 541 432 
 
 Whittingham v. HUl, (1618), Cro. Jao. 494 ; 79 Eng. Rep. 421 ... 282 
 Wicks or Wilkes v. Dowell, [1905] 2 K. B. 225 ; 74 L. J. K. B. 572 • 
 
 92 L. T. 677; 53 W. R. 515 ; 21 T. L. R. 487 ; 7 W. C. C. 14 ... 852 
 Wiggett V. Pox, (1856), 11 Ex. 832 ; 25 L. J. Ex. 188 ; 2 Jur. (N. S.) 
 
 955;4W.R.254 ...43,484 
 
 Wightwiok V. Pope, [1902] 2 K. B. 99 ; 71 L. J. K. B. 709 ; 86 L. T. 
 
 750 ; 50 W. R. 531 ; 18 T. L. R. 639 648 
 
 Wigmore v. Jay, (1850), 5 Ex. 354 ; 19 L. J. Ex. 300 ; 14 Jur. 837... 15, 41 
 WUd V. Waygood, [1892] 1 Q. B. 783 ; 61 L. J. Q. B. 391 ; 66 L. T. 
 
 309 ; 40 W. R. 501 ; 56 J. P. 389 ; 8 T. L. R. 410 209, 213, 214, 215, 
 
 216, 217, 219, 221, 222 
 
 Wilkes's case, (1770), 19 How. St. Tr. 1075 ; 4 Burr. 2527 295 
 
 Wilkea v. DoweU, see Wicks or WUkes v. DoweU. 
 
 WilMnson v. Downton, [1897] 2 Q. B. 57 ; 66 L. J. Q. B. 493 ; 76 
 
 L. T. 493 ; 45 W. R. 525 ; 13 T. L. B. 388 84 
 
 Wilkinson v. Kinneil Oannel and Coking Coal Co., Ltd., (1897), 24 
 
 B. 1001 ; 84 So. L. B. 533 ; 4 Sc. L. T. 349 92 
 
 WUletts V. Watt, [1892] 2 Q. B. 92 ; 61 L. J. Q. B. 540 ; 66 L. T. 
 
 818 ; 40 W. B. 497 ; 56 J. P. 772 ; 8 T. L. E. 533 ... 166, 167, 170 
 
 WiUiams v. Army and Navy Auxiliary Co., Ltd., (1907), 23 T. L. B. 
 
 408; 9W.C. C. 134 ... 654 
 
 Williams v. Birmingham Battery and Metal Co., [1899] 2 Q. B. 338 ; 
 
 68 L. J. Q. B. 918 ; 81 L. T. 62 ; 47 W. B. 680 ; 15 T. L. E. 468 .6, 21, 
 
 27, 29, 31, 32, 33, 37, 193 
 WUUams v. Clough, (1858), 3 H. & N. 258 ; 27 L. J. Ex. 325 27, 33, 228 
 Williams v. East India Co., (1802), 3 East 192 ; 6 E. B. 589 ... 72, 76 
 
 WiUiams v. G. W. By. Co., (1874), L. E.I9 Ex. 157; 43 L. J. Ex. 
 
 105 ; 31 L. T. 124 ; 22 W. B. 531 ; 76,80 
 
 Williams ■;;. Jones, (1865), 3 H. & C. 256 ; 33 L. J. Ex. 297 ; 3 
 
 H. & C. 602 ; 18 L. T. 300 ; 13 W. B. 1023 ; 11 Jur. (N. S.) 843 146 
 Williams v. Mersey Dock and Harbour Board, [1905] 1 K. B. 804 ; 
 
 74 L. J. K. B. 481 ; 92 L. T. 444 ; 53 W. B. 488 ; 69 J. P. 196-; 
 
 21 T. L. B. 397 ; 3 L. G. B. 529 ... ■ 103,247 
 
 Williams v. Ocean Coal Co., [1907] 2 K. B. 422 ; 76 L. J. K. B. 
 
 1073 ; 97 L. T. 150 ; 23 T. L. B. 584 104, 463, 466, 467 
 
 WiUiams v. Penrikyber Navigation ColUery Co., (1903), 19 T. L. B." 
 
 490 372 
 
 Williams v. Poulson, (1899), 63 J. P. 757; 16 T. L. B. 42; 2 
 
 W. 0. C. 126 392,525,526 
 
 Williams v. VauxhaU Colliery Co., Ltd., [1907] 2 K. B. 433 ; 76 
 
 L. J. K. B.-854 ; 97 L. T. 559 ; 23 T. L. E. 591 ; 9 W. C, C. 120 421, 
 
 436, 561 
 
 WiUmott V. Baton, [1902] 1 K. B. 237 ; 71 L. J. K. B. 1 ; 85 L. T. 
 
 569; SOW. E. 148; 66 J. P. 197; 18 T.L.E. 48 511 
 
 WiUoughby v. G. W. By. Co., (1904), 6. W. C. C. 28; 117 Law 
 
 Times newspaper, 28 350 
 
 Wilson V. Boyle, (1889), 17 B. 62 ; 27 Sc. L. B. 57 30 
 
Ixxvi Table of Cases 
 
 PAGE 
 
 Wilson V. Caledonian Ey. Co,, (1899), 2 P. 319 ; 37 So. L. R. 235 20, 30, 
 
 Wilson V. Glasgow Tramways and Omnibus Co., (1878), 5 B. 981; 
 
 15So. L.R. 656 ^^^ 
 
 Wilson V. Love, (1897), 25 R. 280 ; 35 So. L. R. 223 ; 5 So. L. T. 217 165 
 Wilson V. Mcintosh, [1894] A. C. 129 ; 63 L. J. P. C. 49 ; 70 L. T. 
 
 536;6R.429 295,429 
 
 Wilson V. Merry, (1868), L. R. 1 H. L. So. 326 ; 19 L. T. 30 4, 14, 15, 28, 
 ^ ' 41,206,251,413 
 
 WUson V. Ocean Coal Co., Ltd., (1905), 21 T. L. R. 621 ; 7 W. C. C. 
 
 34 ... ... 433,434 
 
 Wilson V. Zulueta, (1849), 14 Q. B. 405 ; 19 L. J. Q. B. 49 ; 14 Jur. 
 
 866 269 
 
 Winspear v. Accident Insurance Co., (1880), 6 Q. B. D. 42 ; 50 L. J. 
 
 Q. B. 292; 43 L. T. 459; 29 W. R. 116 ; 45 J. P. 110 16 
 
 Wisely v. Aberdeen Harbour Commissioners, (1887), 14 B. 445 ; 24 
 
 Sc.L. E. 315 60,178 
 
 Wolfe V. G. N. Ry. Co., (1890), 26 L. R. Ir. 548 110, 111 
 
 Wood V. Darrell, (1886), 2 T. L. B. 550 163, 164 
 
 Wood V. Gray & Sons, [1892] A. C. 576 ; 67 L. T. 628 ... 101, 107 
 
 Wood V. Maokay, (1906), 8 P. 625 ; 43 Sc. L. R. 458 169 
 
 Woodgate v. KnatchbuU, (1787), 2 T. B. 148 ; 1 E. B. 449 155 
 
 Woodhead v. Gartness Mineral Co., (1877), 4 E. 469 ; 14 So. L. R. 
 
 370 ... 44,482 
 
 Woodley v. MetropoUtau District Ry. Co., (1877), 2 Ex. D. 384 ; 46 
 
 L. J. Ex. 521 ; 86 L. T. 419 21,45,81,380 
 
 Woods V. Caledonian Ry. Co., (1886), 13 R. 1118 ; 23 So. L. E. 798 91 
 
 Woods V. Oarron Iron Co., (1892), 8 T. L, B. 376 171 
 
 WooUey v. SooveU, (1828), 3 Man. & By. 105 ; 7 L. J. (O.S.) K. B. 
 
 41; 32B. B. 716 68 
 
 Wright V. Glyn, [1902] ,1 K. B. 745 ; 71 L. J. K. B. 497 ; 86 L. T. 
 
 378 ; 50 W. B. 402 ; 18 T. L. R. 404 ,. ... 369 
 
 Wright V. John Bagnall & Sons, Ltd., [1900] 2 Q. B. 240 ; 69 L. J. 
 Q. B. 551 ; 82 L. T. 346 ; 48 W. E. 538 ; 64 3. P. 420 ; 16 
 T. L. B. 327 ; 2 W. C. C. 36 613,615,617 
 
 Weight V. L. & N.-W. Ey. Co., (1875), L. E. 10 Q. B. 298 ; (1876), 1 
 
 Q. B. D. 252 ; 45 L. J. Q. B. 570 ; 83 L. T. 830 47 
 
 Wright r. London General Omnibus Co., (1877), 2 Q. B. D. 271 ; 46 
 
 L. J. Q. B. 429 ; 36 L. T. 590 ; 25 W. E. 647 117, 118, 154 
 
 Wright V. WaUis, (1887) , 3 T. L. E. 779 198, 200 
 
 Wright V. Zetland (Marquis), [1908] 1 K. B. 68 ; 77 L. J. K. B. 
 
 152 ; 97 L. T. 867 ; 24 T. L. B. 48 449 
 
 Wrigley v. Bagley & Wright and Whittaker & Sons, [1901] 1 K. B. 
 780 ; 70 L. J. K. B. 538 ; 84 L. T. 415 ; 49 W. E. 472 ; 65 J. P. 
 372 488,488,512 
 
 Wrigley v. Whittaker & Sons, [1902] A. C. 299 ; 71 L. J. K. B. 600 ; 
 86 L. T. 775 ; 50 W. R. 650 ; 66 J. P. 420 ; 18 T. L. R. 559 ; 4 
 W. C. C. 93 489,500 
 
Table of Cases Ixxvii 
 
 PAGE 
 
 Wyatt V. G. W. By. Co., (1865), 6 B. & S. 709 ; 34 L. J. Q. B. 204 ; 
 
 12 L. T. 568 ; 13 W. B. 837 ; 11 Jur. (N. S.) 825 87 
 
 WylUe V. Caledonian By. Co., (1871), 9 Macph. 463 ; 43 Sc. Jur. 220 47 
 
 Yarmouth v. France, (1887), 19 Q. B. D. 647; 57 L. J. Q. B. 73 ; 36 
 
 W. B. 281 ; 4 T. L. B. 1 ... 31, 37, 38, 135, 137, 181, 201, 270, 502 
 " Ydun," The, [1899] P. 236 ; 68 L. J. P. 101 ; 81 L. T. 10 ; 15 
 
 T. L. B. 361 ; 8 Asp. M. 0. 551 246 
 
 Yewens v. Noakes, (1880), 6 Q. B. D. 530 ; 50 L. J. Q. B. 132 ; 44 
 
 L. T. 128; 28 W.B. 562; 45 J. P. 468 10 
 
 Young & Harston's Contract, In re, (1885), 31 Ch. D. 168; 58 
 
 L. T. 837 ; 34 W. E. 84 ; 50 J. P. 245 15,395 
 
 Young V. Hoffman Manufacturing Co., [1907] 2 K. B. 646 ; 76 L. J. 
 
 K. B. 993 ; 97 L. T. 230 ; 23 T. L. E. 671 42 
 
TABLE OF STATUTES 
 
 PAGE 
 
 43 Eliz. 0. 5, s. 2 (Inferior Courts) 258 
 
 21 Jac. I. 0. 23, s. 3 (Inferior Courts) 257 
 
 22 & 23 Car. II. 0. 10 (Statute of Distributions) ... - 289 
 
 20 Geo. II. 0. 19 (Begulation of Servants and Apprentices) ... 272 
 
 36 Geo. III. u. 22, s. 3 (Making of bread) 155 
 
 42 Geo. III. c. 73 (Factories) • 4 
 
 4 Geo. IV. c. 34, s. 3 (Masters and Servants) 276 
 
 6 Geo. IV. c. 120, s. 40 (Court of Sessions Act, 1825) 259 
 
 1 & 2 Wm. IV. 0. 37, B. 3 (Truck Act, 1831) 272, 294 
 
 3 & 4 WiU. IV. u. 42, s. 39 (Arbitration Act, 1833) 641 
 
 3 & 4 wm. IV. c. 103 (Factories) 4,39 
 
 1 & 2 Vict. li. 106 (PluraUties Act, 1888) 448 
 
 2 & 3 Vict. c. 47, s. 54 (Police Act) 66 
 
 5 & 6 Vict. c. 99 (Mines and Collieries) 4 
 
 6 & 7 Vict. c. 86, s. 28 (London Hackney Carriages) 154 
 
 7 & 8 Vict. 0. 15 (Factories Act, 1844) 4 
 
 s. 21 39 
 
 8 & 9 Vict. 0. 20, ss. 103 & 104 (Railway Clauses Consolidation Act, 
 
 1845) 151, 152 
 
 9 & 10 Viot. 0. 93 (Fatal Accidents Act, 1846, " Lord Campbell's 
 
 Act") 101-119,242,287 
 
 s. 1 52,103 
 
 s. 2 104,242,290,548 
 
 s. 3 106 
 
 a. 4 106 
 
 a. 5 106,290 
 
 s. 6 107 
 
 14 & 15 Vict. c. 99, s. 16 (Evidence Act, 1851) 624 
 
 21 & 22 Vict. c. 90, s. 27 (Medical Act, 1858) 678 
 
 s. 34 678 
 
 23 & 24 Vict. 0. 151 (MetaUiferous Mines Regulation Act, 1860) ... 4 
 
 24 Vict. c. 10, s. 7 (Admiralty Court Act, 1861) . 119 
 
 24 & 25 Vict. c. 100, s. 35 (Offences against the Person Act, 1861) ... 84 
 
 24 & 25 Vict. i;. 101 (Statute Law Revision Act, 1861) 155 
 
 27 & 28 Vict. c. 95 (Lord Campbell's Act Amendment Act, 1864) ... 101, 
 
 107, 242, 248, 290 
 30 & 31 Vict. c. 14 (Master and Servant Act, 1867) 9 
 
Ixxx Table of Statutes 
 
 PAGE 
 
 30 & 31 Viot. 0. 105 (CouacUg of Conciliation Act, 1867) . . . 624, 670 
 
 30 & 31 Viot. 0. 146 (Workshops Regulation Act, 1867) 275 
 
 31 & 32 Viot. c. 119, s. 22 (Regulation of Railways Act, 1868) ... 62, 675 
 82 & 33 Viot. u. 62 (Debtors Act, 1869) 346, 669 
 
 32 & 33 Vict. c. 71, s. 15, sub-s. 5 (Bankruptcy Act, 1869) 373 
 
 33 & 34 Viot. 0. 78 (Tramways Act, 1870) 238 
 
 34 & 35 Vict. c. 108, s. 3 (Pauper Inmates Discharge and Regulation 
 
 Act, 1871) 456 
 
 35 & 36 Vict. c. 46, s. 1, sub-s. 9 (Arbitration Masters and Workmen 
 
 Act, 1872) 670 
 
 35 & 36 Vict. 0. 76 (Coal Mines Regulation Act, 1872) 24 
 
 s. 52 482 
 
 35 & 36 Vict. 0. 77 (Metalliferous Mines Regulation Act, 1872) 4, 225, 427 
 
 s. 23 225 
 
 s. 24 225 
 
 ss. 31-38 249 
 
 s. 39 225 
 
 36 & 37 Vict. c. 48 (Regulation of Railways Act, 1873) ... 502,503,504 
 
 36 & 37 Vict. c. 66, s. 25, sub-s. 6 (Judicature Act, 1873) 248 
 
 37 & 38 Vict. c. 67, s. 4 (Slaughter Houses Act, 1874) 155 
 
 38 Viot. c. 17, ss. 33-38 (Explosives Act, 1875) 227 
 
 38 & 39 Vict. c. 60, ss. 10-14 (Friendly Societies Act, 1875) ... 427 
 
 38 & 39 Vict. c. 55, s. 2 (Public Health Act, 1875) 226 
 
 s. 113 226 
 
 s. 150 61 
 
 s. 184 226 
 
 s. 264 261,262 
 
 38 & 39 Vict. 0. 66 (Statute Law Revision Act, 1875) 102 
 
 38 & 39 Vict. c. 90 (Employers and Workmen Act, 1875) ... 10,202,266 
 
 ss. 8, 10, 13 266, 267, 270, 278, 448 
 
 39 & 40 Viot. c. 59, s. 3 (Appellate Jurisdiction Act, 1876) 640 
 
 40 & 41 Vict. c. 50, s. 9 (Sheriff Courts (Scotland) Act, 1877) 258, 341, 629 
 
 c. 56, ss. 57, 58 (County Officers' and Courts' (Ireland) 
 
 Act, 1877) 258, 335, 582 
 
 41 Viot. c. 16 (Factory and Workshop Act, 1878) 4, 181, 275 
 
 41 & 42 Viot. c. 49, s. 25 (Weights and Measures Act, 1878) ... 150 
 
 43 & 44 Viot. c. 42 (Employers LiabUity Act, 1880) 3, 7, 36, 58, 111, 123 
 
 296, 322, 399, 412, 414, 438, 604, 640, 656, 693 
 ti.l 124,295 
 
 
 sub-s. 1 
 
 41, 124, 156, 
 
 157, 159, 
 
 , 166, 172, 182, 201 
 
 
 sub-s. 2 
 
 ... 
 
 41, 124, 
 
 , 194, 197, 204, 230 
 
 
 sub-s. 3 
 sub-s. 4 
 
 124, 
 
 , 158, 194, 204, 207, 208, 230 
 124 
 
 s. 2 
 
 sub-s. 5 
 
 sub-s. 1 
 sub-s. 2 
 sub-s. 3 
 
 
 
 ... 125,234,236 
 
 125 
 
 125,157 
 
 125,224 
 
 ... 126,191,194 
 
 s. 3 
 
 
 
 
 105, 126, 158, 239 
 
 s. 4 
 
 
 
 
 ... 
 
 126, 260, 601, 602 
 
Table of Statutes 
 
 Ixxxi 
 
 iB&U 
 
 46 Viot. 
 46&47 
 49&50 
 50&51 
 
 Viot. c. 42, s. 5 
 s. 6 
 
 s. 7 
 =j. 8 
 
 PAGE 
 
 127,248 
 
 127,259 
 
 128,259,261,602 
 
 129, 197, 202, 203, 234, 260, 265, 281 
 
 ss. 9, 10 130 
 
 No. 20 (New Zealand Employers Liability Act, 1882) ... 182 
 
 Viet. c. 52 (Bankruptcy Act, 1883), s. 37 (1) 591 
 
 Viet. c. 48, s. 6 (Medical Act, 1886) 678 
 
 Viet. c. 58 (Coal Mines Eegulation Act, 1887) ... 225,427 
 
 s. 8, sub-s. 2 398 
 
 s. 49, r. 8 226 
 
 r. 21 251 
 
 s. 51 226 
 
 s. 59(2) 249 
 
 s. 70(11.) 249 
 
 No. 8 (New South Wales Employers Liability Act, 1886) 208, 241 
 No. 24 (Queensland Employers Liability Act, 1886) 132, 208 
 
 No. 894 (Victoria Employers Liability Act, 1886) ... 132, 208 
 
 Vict. u. 43 (Stanneries Act, 1887) 307,585 
 
 Viet. 0. 67, ss. 1, 2, 3 (Superannuation Act, 1887) ... 283, 317, 437 
 
 ss. 2,4 284 
 
 Viet. u. 43, s. 72 (County Courts Act, 1888) 630 
 
 s. 85 253 
 
 s. 118 650 
 
 s. 120 586 
 
 s. 126 252 
 
 s. 131 641 
 
 s. 164 674 
 
 c. 58 (Expiring Laws Continuance Act, 1888) . . . 296 
 
 0. 62 (Preferential Payments in Bankruptcy Act, 
 
 1888) 307,584 
 
 52 & 53 Vict. 0. 49, s. 1 (Arbitration Act, 1889) 336, 624 
 
 u. 57, s. 5 (Begulation of Eailways Act, 1889) ... 152 
 c. 60 (Preferential Payments in Bankruptcy (Ireland) 
 
 Act, 1889) 307 
 
 e. 63, s. 1, sub-s. 1 (Interpretation Act, 1889) 441 
 
 sub-s. 2 267 
 
 s. a 243 
 
 s. 14 629 
 
 s. 26 263,601 
 
 53 & 54 Vict. No. 1087 (Victoria Employers and Employees Act, 
 
 50 Viet. 
 50 Viet. 
 50 Vict. 
 50&51 
 50&51 
 
 51&52 
 
 1890) 
 53 & 54 Viot. e. 39 (Partnership Act, 1890) 
 
 53 & 54 Vict. 0. 45 (PoUoe Aet, 1890) 
 
 c. 67 (PoUoe (Scotland) Aet, 1890) 
 
 54 & 55 Vict. u. 39, s. 98 (1) (Stamp Aet, 1891) 
 
 c. 67 (Statute Law Revision Act, 1891) 
 c. 75 (Factories and Workshops Act, 1891) 
 c. 76 (Public Health (London) Act, 1891) 
 s, 142, sub-s, 2 (6) 
 
 132, 208 
 445 
 
 321, 461 
 461 
 589 
 102 
 
 161, 461 
 
 155, 226 
 155 
 
Ixxxii Table of Statutes 
 
 PAGE 
 
 54 & 55 Vict. No. 1219 (Victoria Employers and Employees Act, 
 
 1891) 132,208 
 
 55 & 56 Vict. 0. 19 (Statute Law Revision Act, 1892) 152 
 
 55 & 56 Vict. 0. 30 (Ontario Workmen's Compensation for Injuries 
 
 Act, 1892) 132,172,185 
 
 0. 62, s. 9 (Shop Hours Act, 1892) 39 
 
 56 Vict. No. 6 (New South Wales Employers Liability Amendment 
 
 Act, 1892) ... 279 
 
 56 Vict. c. 14 (Statute Law Revision Act, 1893) 102 
 
 56 & 57 Vict. 0. 63, s. 2 (Married Women's Property Act, 1893) ... 597 
 
 56 & 57 Viot. c. 66 (Rules Publication Act, 1893) 629 
 
 56 & 57 Viot. c. 67 (PubUo Authorities Protection Act, 1893) 245, 246, 247 
 
 56 & 57 Vict, 0. 71, s. 56 (Sale of Goods Act, 1893) ... 
 
 57 & 58 Viot. c. 28 (Notice of Accidents Act, 1894) ... 
 
 0. 56 (Statute Law Revision Act, 1894) 
 57 & 58 Viot. c. 60, s. 1 (Merchant Shipping Act, 1894) 
 ss. 2 and 3 
 
 3.174(2) 
 
 s. 458 
 
 ss. 502-509 
 
 ss. 691, 695 
 
 a. 692 
 
 s. 696 
 
 s. 742 
 
 59 cS; 60 Vict. o. 14 (Short Titles Act, 1896) 
 
 u. 25 ss. 1-4 (Friendly Societies Act, 1896) 
 
 ss. 1-7 
 
 a, 8, sub-s. 1 
 
 s. 16 
 
 s. 41 
 
 59 & 60 Viot. c. 44 (Truck Act, 1896) 
 
 60 & 61 Viot. 0. 19 (Preferential Payments in Bankruptcy Amend- 
 
 ment Act, 1897) 584 
 
 60 & 61 Viot. vs. 37 (Workmen's Compensation Act, 1897) 4, 7, 92, 118, 240, 
 
 294, -322, 323, 431, 446, 477, 640, 648, 664, 667 
 
 a. 1, snb-3. 2 419 
 
 s-2 678 
 
 !i. 3 420 
 
 s. 4 483, 486, 491, 494, 657, 659 
 
 s. 6 694 
 
 s-7(3) ■ 500 
 
 1st sch. par. (11) ggs 
 
 1st soh. par. (12) 586 
 
 2nd sch. par. (13) 685 
 
 61 Viot. No. 28 (New South Wales Employers Liability Act, 1897) 132 
 1 Edw. VII. c. 22 (Factories and Workshops Act, 1901) 180, 181, 427, 603 
 
 s-10 '. 25,39 
 
 s. 19-22 34y 
 
 ^■"^^ 226,357,365,368 
 
 s-104(a) 250 
 
 
 191 
 
 238 
 
 ,602 
 
 
 130 
 
 
 451 
 
 
 451 
 
 
 618 
 
 
 58 
 
 451 
 
 ,598 
 
 309, 
 
 ,454 
 
 318, 
 
 ,699 
 
 ... 
 
 618 
 
 267, 452, 
 
 453 
 
 
 101 
 
 427, 
 
 582 
 
 
 427 
 
 
 435 
 
 
 435 
 
 
 435 
 
 
 278 
 
Table of Statutes 
 
 1 Edw. VII. u. 22, a. 105 (b) 
 
 s. 106(1) 
 
 s. 106(c) 
 
 s. 107 
 
 s. 136 
 
 s. 122-124 
 
 s. 149, sub-s. 4 
 
 s. 156i 
 
 5 Edw. VII. c. 10 (Shipowners' Negligence (Remedies) Act, 1905) 
 
 s. 1 
 
 s. 11 
 
 5 Edw. VII. c. 18 (Unemployed Workmen Act, 1905) s. 1 (1), (2) 
 
 (5), (7) 
 
 6 Edw. VII. c. 48, 3. 34 (Merchant Shipping Act, 1906) 
 
 s. 49(2) 
 
 s. 71 
 
 6 Edw. Vn. 0. 53 (Notice of Accidents Act, 1906) s. 5 (1) 
 6 Edw. VLI. c. 58 (Workmen's Compensation Act, 1906) 
 
 1st sch. 
 
 2ndsch 
 
 8 Edw. VII. u. 7 (Fatal Accidents (Damages) Act, 1908) 
 
 8 Edw. VII. 0. 39, s. 1 (Endowed Schools (Masters) Act), 1908 
 
 Ixxxiii 
 
 PAGE 
 250 
 502, 507 
 250 
 462 
 .. 25,249 
 311, 356 
 503 
 39, 181 
 700, 701 
 701 
 701 
 
 '. 448 
 
 552, 593 
 
 450 
 
 451 
 
 602, 603 
 
 299-824 
 
 325-335 
 
 335-343 
 
 114 
 
 450 
 
COREIGENDA ET ADDENDA. 
 
 Page 11, n. (a), fcyr " Ogden " read " Ogdens." 
 
 „ 11, n. (a), for " 106 " read " 109." 
 
 „ 27, n. (c), fw " Griffith " read " Griffiths." 
 
 „ 29, add note to Tarry v. Ashton, "Palmer v. Batsman [1908], 2 
 
 I. B. 393." 
 
 „ 40, n. (6), f<yr " O'Bryne " read " O'Byrne " twice. 
 
 „ 50, n. {d), line 3, after " 352 " add " in C. of A. [1908], 2 K. B. 825." 
 
 „ 59, n. (e), for " Cook " read " Cooke." 
 
 „ 84, n. (c), line 9, for " 36 " read " 85." 
 
 „ 106, n. line 2, for " Niohalls " read " Niokalls." 
 
 „ 108, n. (6), line 15, for " WaUl " read " Traill." 
 
 „ 110, n. (6), „ 11, for " Johnson " read " Johnston." 
 
 „ 115, n. (6), „ 1, for " Bamet " read " Bamett." 
 
 „ 116, n. (a), „ 7, for " Steward " read " Stewart." 
 
 „ 133, n. (d,), for " Nioolson " read " Nicholson." 
 
 „ 152, n. (a), for " 1839 " read " 1889." 
 
 „ 163, n. (e), line 6, for " Miohell " read " Mitchell." 
 
 „ 166, n. (a), „ 11, delete " 54." 
 
 „ 171, n. (e), for •' Priohard " read " Pritchard." 
 
 „ 171, n. If), line 3, for" Cowden Heath " read " Cowdenbeath." 
 
 „ 180, line 2 from hottom of text, for " Thomson " read " Thompson." 
 
 „ 185, n. line 4, for " Gilchrest" read " Purness." 
 
 „ 207, n. {d), delete " 10," and for " 360 " read " 359." 
 
 „ 223, n. (d), for " Grimson " read " Gimson." 
 
 „ 246, n. (6), line 15, for " Pulham " read " Pulham." 
 
 „ 246, n. [b), „ 20, add " in H. of L., [1907] A. 0. 351." 
 
 „ 251, n. (6), from " Betts " delete the " s." 
 
 „ 252, line 13, for " Porter " read " Potter." 
 
 „ 258, n. {d), line 2, for " M'Avory " read " MoAvoy." 
 
 „ 254, n. (e), from " Betts " delete the " s." 
 
 „ 265, n. (b), Une 2, for " KeUy " read " Keily." 
 
 „ 448, n. (6), line 3, fm " Times newspaper, 28th Nov., 1908," read " 25 
 
 T. L. R. 102." 
 
 „ 459, n. (c), line 2, for " Times newspaper, 28th Nov., 1908," read " 25 
 T. L. R. 103." 
 
PAET I 
 
 EMPLOYEES' LIABILITY AT 
 COMMON LAW 
 
CHAPTER I 
 
 PEELIMINAEY 
 
 The right of a workman against his employer for com- Three aspecti 
 
 „ . . . , . , n 1 .' 1 the subject, 
 
 pensation lor injury sustained m the course of nis employ- 
 ment has to be considered in three aspects : — 
 
 (1) As it stands at common law ; 
 
 (2) As the common law right is affected by the 
 
 Employers Liability Act, 1880 ; {a) 
 
 (3) As it is settled by the Workmen's Compensation 
 
 Act, 1906. (J) 
 
 The relation of master to servant has been gradually change of rei 
 
 tion between 
 
 changing during the course of legal history. At first a m^terand 
 ■status, the position of a servant or workman then became 
 the subject of contract pure and simple, with such in- 
 cidents deduced, or perhaps added, as in the opinion of the 
 Courts were the logical outcome of the relationship viewed 
 as purely a contractual one. Lastly, the relation of master 
 and servant has become a matter of State regulation, with 
 a rapidly progressive tendency to restrain its contractual 
 freedom by considerations of public duty and State policy. 
 As connoting status the relation of master and servant 
 need not concern us here. 
 
 (a) 43 & 44 Viot. o. 42. -(6) 6 Edw. VII., c. 58. 
 
 B.E.L. B 2 
 
Preliminary 
 
 Chap. I. 
 
 cgisUtive 
 eriod. 
 
 elation of 
 laster and 
 Tvant to 
 SFSODB outside 
 le relation. 
 
 The common law, as we have to deal with it, is occupie 
 with the development of the contractual view of tl 
 relationship. This reached its full expansion in Wilson 
 Merry, {a) and was more strikingly illustrated in Howells 
 Landore Steel Co. (J) 
 
 The passing of the Employers Liability Act, I881 
 marks the close of the first definite stage of the legislatiT 
 period (c) in which a standard of duty independent c 
 contract was gradually set up ; while the Workmen's Con 
 pensation Act, 1897, was only the commencement of 
 system of compulsory restriction on the free relations c 
 Capital and Labour, which admits of almost indefinit 
 extension. 
 
 The common law relation of master and servant to th 
 outside world is peculiar in two respects. The master ma 
 sue a wrongdoer for the loss of the services of his servan 
 caused by " a wrong or injury done to the servant in th 
 course of his master's business " ; {d) and, conversely, an; 
 one injured by the servant acting in the scope of hi 
 employment may make the master liable for the injury, (c) 
 
 Apart from these peculiarities, persons holding th 
 relation of master and servant stand to each other in th' 
 same position as they do to the rest of the community. I 
 
 (a) L. E. 1 So. App. 326. (h) L. E. 10 Q. B. U. 
 
 (c) The legislation which resulted in the Employers Liability Aol 
 1880, traces its origin from the 42 Geo. III. c. 73, through the 3 & 
 William IV. c. 103, and the 7 & 8 Vict. c. 15 to the Factory and Worksho 
 Act, 1878 (41 Vict. o. 16), and from the 5 & 6 Vict. c. 99 through the 23 & 2 
 Vict. 0. 151 to the Metalliferous Mines Eegulation Act, 1872 (35 & 36 Viet 
 u. 77), and other like special legislation. 
 
 (d) Per Willes, J., Alton v. Midland Ey. Co., 34 L. J. 0. P. 292 at 29'i 
 The limits of the decision in Alton's case are indicated in Taylor i 
 Manchester, ShefBeld and Lincolnshire Ey. Co., [1898] 1 Q. B. 184 ; and i] 
 Meux V. G. E. Ey. Co., [1895] 2 Q. B. 387. 
 
 (e) Limpus v. London General Omnibus Co., 1 H. & C. 526. Post, lit 
 Hamlyn v. John Houston & Co., [1903] 1 K. B. 81, is an instance of an actio) 
 for inducing a servant to commit a breach of contract. 
 
Master anA Servant 5 
 
 a servant personally injures any one outside his relation of Chap. ] 
 service, the injured person has a right of action, (a) both for 
 the damage and the insult, (6) as in any other case ; and if 
 a servant is injured he has his right of action wholly 
 unaffected by his position as servant. 
 
 Neither is there immunity amongst servants inter se. servants iiaw 
 True, Pollock, C.B., in Southcote v. Stanley, (c) says that 
 one servant cannot " maintain an action against another 
 for negligence whilst engaged in their common employ- 
 ment"; but the authorities for the other yiew prepon- 
 derate; and it is clear that a workman has an action 
 against a fellow-workman who injures him. (d) 
 
 The relation of a workman to his employer now-a-days Relation of « 
 at common law arises entirely from contract ; and all those manatcomm 
 
 •' ' law. 
 
 terms are to be read into the formal contract which are 
 necessarily or ordinarily attached in the circumstances of 
 the society in which the contracting parties make their 
 agreement. For example : a workman on entering into a 
 contract with an employer is entitled to assume, that the 
 other party (the employer in this case) will perform his part 
 of the contract with ordinary care and good faith. Hence 
 it is that the workman is entitled to presume that the 
 materials provided for him to work upon are not inferior 
 to the average, and that the employer will exercise towards 
 him, at least, ordinary care and diligence. On the other 
 
 (a) Stephens v. Myers, 4 C. & P. 349 ; 34 E. E. 811. Witli this, however, 
 op. per Pollock, O.B., in Cobbett v. Grey, 4 Ex. 729 at 744, and the same 
 learned Judge in Allsop v. AUsop, 29 L. J. Ex. 315 at 316. 
 
 (6) This has been questioned by a reviewer. My authority is, 3 Bla. 
 Com., 120 : if one strikes at another "but misses him; this is an assault, 
 insultus." " This also is an inchoate violence, amounting considerably 
 higher than bare threats; and therefore, though no actual suffering is 
 proved, yet the party injured may have redress by action of trespass vi et 
 armis." See Cooley, Torts (2nd ed.), 185, n. 
 
 (c) 1 H. & N., 247 at 250. 
 
 (d) Per Pollock, B., Swainson v. N. E. Ey. Co., 3 Ex. D. 341 at 344 ; 
 Wharton, Negligence (2nd ed.), 245. 
 
6 Preliminary 
 
 Chap. I. hand, the employer is, at common law, entitled to presume 
 that the competent workmen, whom he has engaged to work 
 together, will neither negligently nor wilfully injure one 
 another; and to conduct his business on the footing that 
 a pure accident will not affect his responsibility to them. 
 
 w determined. The grouud of thoso views is that, so long as the relation 
 between master and servant is the subject of contract, the 
 ordinary rules governing the interpretation of contracts 
 must apply to them ; and those rules assume a contract with 
 a knowledge of all ordinary circumstances and surround- 
 ings. So soon as one party to the contract knows and the 
 other is ignorant of any circumstance which alters the 
 conditions of the contract, it becomes his duty to communi- 
 cate the fact to the other ; and if he fails in his duty, the 
 other may treat him as if the contract had been made 
 expressly to exclude the person who is ignorant from re- 
 sponsibility in respect of such circumstance. For example : 
 if the master discovers a defect in the machinery used 
 on the work, of which the servant is ignorant, and does 
 not either inform him of the defect or remedy it, the 
 master is liable for any accident arising from it; but if 
 the master is ignorant and the servant knows, then the 
 servant is held to take the risk arising from the defect. 
 If both know, and the working is continued without comment 
 accordingly to the latest decisions, (a) which considerably 
 modify what was once held to be the law, (6) the workman 
 is not to be held to undertake it unless — 
 
 (1) In addition to knowledge of the risk he is shown 
 
 (a) Smith v. Baker, [1891] A. C. 325 ; applied in WiUiams v. Birming- 
 ham Battery and Metal Co., [1899] 2 Q. B. 338. 
 
 (b) Cp. Speech of Lord Bramwell, Membery v. G. W. Ey. Co., 14 App. 
 Cas. 179 at 186 ; Skipp v. Eastern Counties Ey. Co. (1853), 9 Ex. 223 ; 
 followed in Peltham v. England, L. E. 2 Q. B. 33. See for the principle 
 on which a rule of law is established Holmes, The Common Law, 123 ; 
 Groves v. Fuller, 4 T. L. E. 474. Post, 20, 87. 
 
Thomas v. Quartermaine 7 
 
 to have appreciated or had the means of appre- Chap. I 
 elating its danger ; and 
 
 (2) So conducted himself as to warrant the inference 
 that he undertook it. In fact a new contract 
 must be inferred. .The old cases are no longer of 
 authority. 
 
 To the purely contractual notions that prevailed in the state duty, 
 middle of the last century has lately been brought again 
 into prominence the notion of a State duty to regulate the 
 conditions of labour. The relation of workman and em- 
 ployer has been lifted from its place in the ordinary law of 
 contracts, and arbitrary incidents have been attached to it, 
 with the political object of improving the position of the 
 workman, and may be of a waken ing or consecrat ing his j> 
 sympathies. The Employers Liability Act, 1880, adopted 
 the means of adding advantageous implied obligations to 
 the contract. The Workmen's Compensation Acts have 
 gone in a different direction, and essayed to improve the 
 position of the workman by compulsory regulations of the 
 terms of labour, and the imposition of terms to contracts of 
 service which must result in a general system of insurance. 
 They proceeded on the theory that one making a contract 
 undertook the natural and obvious risks of the situation: 
 that volenti non fit injuria. The decision in Thomas v. 
 Quartermaine made the first inroad into what till then had 
 been settled law : that the onus of showing that the 
 workman did not undertake any particular risk incident to 
 his contract of employment ; and did it by emphasizing a 
 scholastic subtilty which must have been very congenial to 
 Bowen, L. J., who revived it : " The maxim be it observed is 
 not seienti non fit injuria but volenti. It is plain that mere 
 knowledge may not be a conclusive defence. There may 
 be a perception of the existence of the danger without 
 
8 Preliminary 
 
 Chap. I. comprehension of the risk." This only goes to affirm that 
 the presumption of the common law is not irrebuttable, but 
 that where the facts point to knowledge as the fair pre- 
 sumption, the workmen may give evidence to show that it 
 is not the true one. The House of Lords, however, in 
 Smith V, Baker, went far beyond this position. 
 
 ,ith». Baker, This iUustrious body in its judicial capacity has 
 frequently shown its susceptibility to considerations of 
 policy if not of politics; and it did so notably in the 
 case of Smith v. Baker, which in its facts raised exactly 
 the point that had been treated as settled law since Skipp 
 V. Eastern Counties Ey. Co. A workman was exposed to 
 a danger of the employment but outside the immediate 
 object of his own work : in one case the running of periodic 
 trains ; in the other, the swinging overhead of large stones 
 at the place where he was engaged at work. The dissenting 
 speech of Lord Bramwell expresses beyond a doubt in 
 the writer's opinion what was the common law doctrine 
 up to this point. But the House of Lords decided that 
 " the mere fact that he . [the workman] undertakes or 
 continues in such employment, with full knowledge and 
 understanding of the danger, is not conclusive to show 
 that he has undertaken the risk." So far this is mere 
 iteration of the old law ; but, to quote the words of Lord 
 Herschell, (a) "it must have been a question of fact and 
 not of law whether the plaintiff undertook the employment 
 with an appreciation of the risk." The interpretation of 
 this clause is given by Komer, L.J. : " It is no sufficient 
 answer to the prima facie liability of the employer (&) 
 
 (a) [1891] A. C. 325 at 367. 
 
 (6) It may be worth while to note that this is the exact opposite o£ 
 what had hitherto been held to be law. There was no "primd facie 
 liability of the employer." Bes i^sa logmtur does not, or did not, apply 
 as between master and servant. The oases demonstrating this conclusion 
 are collected in Labatt, Master and Servant, 2298. Probably sufficient of 
 
Definitions 9 
 
 to show merely that the servant was aware of the risk and Chap, 
 of the non-existence of the precaution which should hare 
 been taken by the employer, and which, if taken, would, 
 or might, have prevented the injury. Whether the servant 
 has taken that upon himself is a question of fact to be 
 decided on the circumstances of the case." 
 
 This has since been adopted as the modern law. The outcome. 
 way it works out is, the master has now to probe into the 
 man's mind to find his intention in taking the work ; he 
 has to give the man's reason for working, and his action 
 is not eyen prima, facie evidence of his intention. Keliance 
 can no longer be placed on what he does ; for a jury is to 
 find what he thinks, and is hampered by no logical obstacles 
 in doing so. (a) 
 
 The object of this book is to trace the growth of the law scope of the 
 of workmen's compensation through these stages, and to 
 present a view of the law as it stands to-day. 
 
 Before setting out, it is expedient to define certain Terms, 
 terms which we must frequently use. 
 
 ■ The substitution of the words Employer and Work- ^pA^^" *' 
 man for the words familiar to the common law. Master slrTOntr'* 
 and Servant, serves to illustrate rather a social than a 
 legal change. The use of the term workman connotes 
 the performance of work; that of servant submission to 
 control ; while the term employer points to the providing 
 of work ; that of master to the exercise of control. In law 
 they are practically synonymous. (&) 
 
 them to Ijear out the proposition are quoted, Beven, Negligence (3rd ed.), 
 130. 
 
 (a) Adapted from an article by the author in the Journal of the Society 
 of Comparative Legislation (N. S.), No. XVIII., 185. 
 
 (b) It may be interesting to note the transition from the legislative use 
 of one phrase to the other. The Master and Servant Act, 1867 (30 & 31 
 Vict. 0. 14), is the last of a long series, as may be seen from the schedule, 
 where the term master and servant is employed. The Employers and 
 
10 Preliminary 
 
 Chap. I. A Master is one who not only prescribes to the work- 
 
 gi.g'jr man the end of his work, but one who may direct the 
 
 means also; who "retains the power of controlling the 
 work." (a) He who works on these terms is a servant ; for 
 whose acts, neglects and defaults the master is liable while 
 he is engaged on matters conducing to bring about the 
 completion of the work. (&) 
 vant. A Servant is a person subject to the command of 
 
 his master as to the manner in which he shall do his 
 (work, c) 
 
 The relation of employer and workman does not connote 
 actual employment. " It is not those only who are actually 
 called upon to perform duties, but those who are under an 
 obligation to perform them who are employed." 
 
 ipioy. Employ in relation to a servant means " hire " or 
 
 " keep in a service," and does not necessarily imply that 
 the master is bound to supply the servant with any par- 
 ticular work whilst the relation subsists, {d) 
 
 Workmen Act, 1875 (38 & 39 Viot. o. 90), is the starting-point of the new 
 nomenclature. 
 
 (a) Orompton, J., Sadler v. Henlock, 4 E. & B. 570 at 578. 
 
 (6) Limpus V. London General Omnibus Co., 1 H. & C. 526. 
 
 (c) Per Bramwell, L.J., Yewens v. Noakes, 6 Q. B. D. 530 at 532; see 
 art. " Servant," Stroud Judicial Dictionary. 
 
 id) Per Parke, B., Emmens v. Elderton, 4 H. L. 0. at 668 ; per Cromp- 
 ton, J., at 642 ; cp. Turner v. Sawdon, [1901] 2 K. B. 653. In Phillips v. 
 Alhamhra Palace Co., [1901] 1 E. B. 59, it was held that where a contract 
 of employment is not of such a personal character on the part of the 
 partnership as to be put an end to by the death of the deceased partner it 
 could be enforced by the surviving partners. This assumed that the law 
 looks on the existence of the obligation as dependent for its basis on the 
 personal element : Tasker v. Shepherd, 6 H. & N. 575 ; Eobson v. Drum- 
 mond, 2 B. & Ad. 303. In his judgment in Phillips's case at 64, 
 Kennedy, J., cited Lindley on Partnership, 6th ed., p. 297 : "If a person 
 enters into a contract with a firm, and that contract is of a purely 
 personal character to be performed by the individuals who have entered 
 into it, and not by any one else, a change in the firm may operate as a 
 dissolution of the contract, so that neither the new nor the old partners 
 can sue in respect of any alleged breach which may have occurred since 
 the change took place." He also cited Bullen and Leake, 3rd ed.,p. 229: 
 "A contract made with a partnership respecting matters connected with 
 
Definitions 11 
 
 If, however, wages are to be paid in the form of com- Chap, 
 mission a contract is impliedly created to find work, {a) 
 
 Whatever a man does in the course of his master's 
 employ, eundo, morando, redeundo, the master is responsible 
 for, even if the man is leaving his work without excuse, (h) 
 
 A Contractor for work is not a servant. " If there conti-ftctor. 
 is a contract between them" (i.e. an employer and a 
 workman) "so that the person doing the work, or doing 
 the act complained of, has a right to say to the employer, 
 '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 
 
 partnership business is generally construed as applicable to the existing 
 partnership and business, and is terminated by a dissolution or change 
 of the partnership or alteration in its business, unless the contrary in- 
 tention expressly appears." In Brace v. Oalder, [1895] 2 Q. B. 253, the 
 majority of the Court of Appeal (Lopes and Bigby, L.JJ.) were of opinion 
 that a contract to serve four employers cannot without express language 
 be construed as being a .contract to serve two of them and the dissolution 
 of the partnership operated as the dismissal of the plaintiff, the agent 
 of whisky dealers at a fixed salary at £300 a year. Lord Esher, M.R., 
 agreed with Wright, J., in the court below that the change in the firm 
 did not operate as a breach of the contract of employment, but that 
 the plaintiff was bound to continue to serve the continuing partners. 
 Though the division of authority is unfortunate, in the result justice 
 seems to have been done ; for the continuing partners had offered to 
 employ the plaintiff on the terms of his contract : an offer of employment 
 that had to be taken in reduction of damages, which reduced them to 
 nominal, while no costs were given. In Midland Counties District Bank 
 V. Attwood, [1905] 1 Oh. 857, Warrington, J., held that a compulsory 
 winding-up changes the personality of a company so as to operate as a 
 notice to dismiss the servants. This is not so in the case of a voluntary 
 winding-up. He explains Shirreff's Case, L. K. 14 Eq. 417. 
 
 (a) Turner v. Goldsmith, [1891] 1 Q. B. 544 ; Ogden Ltd. v. Nelson, 
 [1903] 2 K. B. 287 ; [1904] 2 K. B. 416 ; [1905] A. 0. 106 ; Devonald v. 
 Rosser & Sons, [1906] 2 K. B. 728. See, however, Northey v. Trevillion, 18 
 T. L. E. 648 ; following Khodes v. Porwood, 1 App. Cas. 256. 
 
 (6) Brydon v. Stewart, 2 Macq. (H. L. Sc.) 30. 
 
12 Preliminary 
 
 Chap. I. do it as I direct you to do it,' there the law of master and 
 servant applies, and the master is responsible." {a) 
 
 ent. An Agent is not a servant. An agent is allowed more 
 
 or less discretion, while a servant is, as a rule, bound to 
 obey specific orders. Thus, the publisher is the mandatory 
 or agent of the author in printing a book ; the compositor 
 is the locator or servant of the printer in setting up the 
 type. A trustee is the mandatory or agent of his principal 
 in investing the latter's funds ; the trustee's clerk, who 
 keeps his account, is the trustee's locator or servant. A 
 contractor undertaking to build a house for a capitalist 
 is the capitalist's agent, the mason or the bricklayer who 
 directly lets his labour is a servant. 
 
 The servant binds the master so long as he acts for 
 the advancement of the master's business, (b) 
 
 A contractor or an agent does not affect his principal 
 with liability unless his act is done in the necessary or 
 usual conduct of the work, (c) 
 ,peof An act within the "scope of the authority" of the 
 
 servant comprehends any act which may be considered 
 as having resulted from the performance of the duty 
 entrusted to the servant; or to have been undertaken by 
 him with that end in view; and especially if in doing 
 
 (a) Per Bramwell, L.J., Minutes of Evidence on Employers' Liability. 
 Parliamentary Papers, 1876, vol. x. 58. Mr. Stroud, Judicial Dictionary, 
 2nd ed., sub. voce Contractor, cites from an American report the follov^ing : 
 " A ' Contractor ' is a person who, in the pursuit of an independent business, 
 undertakes to do specific jobs of work for other persons without submitting 
 himself to their control in respect of the details of the work." Post, 139. 
 
 (6) Per Willes, J., Barwick v. English Joint Stock Bank, L. E. 2 Ex. 259 
 at 265-6; see also per Bowen, L.J., British Mutual Banking Co. v. Cham- 
 wood Eorest By. Co., 18 Q. B. D. 714 at 717, and post, 142, andseg^. In 
 Halbot V. Lens, [1901] 1 Ch. 344, Kekewich, J., held that the proposition 
 in Smout v. Ilbery, 10 M. & W. 11, that there must be some wrong or 
 omission on the part of the agent in order to make him personally liable 
 in respect of a contract made in the name of his principal, is negatived by 
 CoUen V. Wright, 8 E. & B. 647. 
 
 (c) Percival v. Hughes, 8 App. Gas. 443. 
 
 thorlty. 
 
Definitions 13 
 
 the act he were acting for his master's benefit, and not Chap. : 
 for any purpose of his own. {a) 
 
 The question whether acts of the servant are within 
 the scope of his authority is for the jury, unless they 
 are of a nature which manifestly cannot be so ; when the 
 judge will nonsuit, (h) 
 
 Common Employment. — When "servants are ser- common em. 
 
 ployment, 
 
 vants of the same master, (c) and where the service of 
 each will bring them so far to work in the same place and 
 at the same time " (and on the same system of work) {d) 
 " that the negligence of one, in what he is doing as part 
 of the work which he is bound to do, may injure the other 
 whilst doing the work which he is bound to do," such 
 service is in a common employment. («) 
 
 "In all cases the immediate instrument of physical 
 injury must be contiguous to the person injured, and in 
 most cases the person who causes physical injury is not 
 far from the person to whom it results. But I suppose 
 that the signalman at one end of a rifle range is clearly 
 in common employment with the marker at the other, 
 when the two have a common master ; and to give a 
 stronger instance, a servant who unskilfully packs dynamite 
 in a factory, and another who is unpacking it at a distant 
 warehouse is injured by its explosion, are clearly in a 
 
 (as) Per Williams, J., Limpus v. London General Oinnibus Co., 1 H. & 
 C. 526 at 539 ; Storey v. Ashton (1869), L. B. i Q. B. 476, per Cookburn, 
 O.J., at 479. The contract of agency or service cannot impose an 
 obligation to commit a tort ; Cullen v. Thompson, 4 Macq. (H. L. So.) 424 
 at 432. 
 
 (6) Fletcher v. L. & N. W. By. Co., [1892] 1 Q. B. 122. 
 
 (c) Johnson v. Lindsay, [1891] A. C. 371 ; Cameron v. Nystrom, [1893] 
 A. 0. 308. Post, 42. 
 
 (d) Smith V. Baker, [1891] A. 0. 325 at 336, and 355. 
 
 (e) Charles v. Taylor, 3 C. P. D. 492 at 496. 
 
14 Preliminary 
 
 Chap. I. common employment, (a) On the other hand, mere con- 
 tiguity, if unusual or accidental, would not be consistent 
 with common employment." (6) 
 
 Test. The question comes to this : Did the one servant 
 
 know or have reason for knowing that the employment 
 of the other servant was incidental to his own employ- 
 ment ? (c) 
 
 Fellow-servant. Fellow-scrvailts are all those who are engaged in 
 a common employment under the same employer, who 
 either themselves come into contact during the progress 
 of the work, or whose work is so performed as to subject 
 to risk others engaged in the same employment and under 
 the same employer, even though the work from which the 
 risk arises is done in some other place thart that in which 
 the risk is encountered, or before the person so affected by 
 it was engaged in the service, {d) 
 
 (a) But query whether this last illustration is correct unless the cir- 
 cumstances of the employment are such that " the risk of injury from 
 the negligence of 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 are to be considered in his wages"; per Blackburn, J., 
 cited by Erie, C.J., Morgan v. Vale of Neath By. Co., L. B. 1 Q. B; 149 
 at 155. 
 
 (6) Per Sir F. Jeune, " The Petrel," [1893] P. 390 at 325. The leading 
 case on the common law doctrine of common employment is Wilson v. 
 Merry (1868), L. B. 1 Sc. Ap. 326 ; see too per Lord Oranworth, Bartonshill 
 Goal Co. V. Eeid (1858), 3 Macq. (H. L. Sc), 266 at 295. In Bartonshill 
 Coal Oo. V. Maoguire, ib. at 308, the same learned Lord says: "There 
 may be some nicety and difficulty in peculiar cases in deciding whether 
 a common employment exists ; but in general by keeping in view what the 
 servant must have known or expected to have been involved in the service 
 which he undertook, a satisfactory conclusion may be arrived at." Post, 41. 
 
 (c) Morgan v. Vale of Neath By. Co., L. E. 1 Q. B. 149. Post, 42. 
 
 (d) Wilson v. Merry, L. B. 1 So. App. 326 ; explained iu Johnson v. 
 Lindsay, [1891] A. C. 371. A manager appointed under a statutory 
 obligation and acting under statutory powers is at law no different from an 
 ordinary manager : Howells v. Landore Siemens Steel Co., Ltd., L. B. 10 
 Q. B. 62. The captain of a ship and the sailors are fellow-servants: 
 Hedley v. Pinkney & Sons Steamship Co., [1894] A. 0. 222. A compulsory 
 pilot is not a fellow-servant with the crew he is engaged in piloting: 
 Smith V. Steele, L. B. 10 Q. B. 125 ; nor is the relation between the owner 
 and the pilot one of master and servant : General Steam Navigation Co. v. 
 British and Colonial Steam Navigation Co., Ltd., L. B. 4 Ex. 238. In 
 
Befinitions 15 
 
 Duty iu law is the correlative term to Right, and Chap. I. 
 signifies that which a person is bound by legal obligation „uty^|^igijt. 
 to do or forbear with reference to some other person or 
 persons. The word " Duty " is most commonly used to 
 indicate obligations implied by law, and thus generally 
 applicable, and not those undertaken by contract, which 
 are special in their obligation, (a) 
 
 The most general expression of the notion of duty is 
 that of Bramwell, L.J. : " That duty which the law imposes 
 on all, namely, to do no act to injure another," (6) 
 
 " Default is a purely relative term, just like negli- Default, 
 gence. It means nothing more, nothing less, than not 
 doing what is reasonable under the circumstances — not 
 doing something which you ought to do, having regard 
 to the relations which you occupy towards the other 
 person interested in the transaction." (c) 
 
 Wigmore v. Jay, 5 Ex. 354, the ■workman who wag killed was absent at the 
 time of making the defective soafiold which caused the accident, and, for 
 aught that appears, might not have been in the service at the time of the 
 making of the scaffold. In Wilson v. Merry, L. B. 1 So. App. 326 at 332, 
 Lord Cairns, C, says : " If an accident occurs to a workman to-day in con- 
 sequence of the negligence of another workman, skilful and competent, 
 who was formerly but is no longer in the employment of the master, the 
 master is not liable, although the two workmen cannot technically be 
 described as fellow- workmen." 
 
 (a) Legal duty is not to be confounded with moral duty. See 
 Holmes, The Common Law, 148. " The law certainly does not pro- 
 fess to treat as a legal wrong every act which may be disapproved of 
 in point of morality " : per Lord Hersohell, Allen v. Flood, [1898] A. C. 
 at 120. 
 
 (6) Poulkes V. Metropolitan District Co., 5 C. P. D. 157 at 159. 
 " Where a man is bound to any duty and chargeable to a certain extent by 
 the operation of the law, in such case he cannot by any act of his own dis- 
 charge himself " — that is apart from agreement : per Lord Kenyon, G.J., 
 Hide V. Proprietors of Trent Navigation, 1 Esp, (N. P.) 36. " There can 
 be no action except in respect of a duty infringed, and no man by his 
 wrongful act can impose a duty " : Degg v. Midland Ey. Co., 1 H. & N. 773, 
 per Bramwell, B., at 781. " A duty impossible to be known can be no 
 duty, for civilly what cannot be known to be, is as that which is not " : 
 per Vaughan, C.J., Sheppard v. Gosnold, Vaugh. 159-166, cited per 
 Tindal, C.J., Barrow v. Arnauld, 8 Q. B. 595, 608. How the notion of 
 legal duty is formed is discussed in Beven, Negligence {3rd ed.), 10. 
 
 (c) Per Bowen, L.J., Ire re Young and Harston's Contract, 31 Ch. D, 
 168 at 174. 
 
16 Preliminary 
 
 Chap. I. Xegligenee is " the absence of such care as it was 
 
 Negligence. t^^ duty of the defendant to use." (a) 
 
 Accident. Accideilt is an occurreuce which " could not have 
 
 been avoided by the use of the kind and degree of 
 care necessary to the exigency and in the circum- 
 stances." (6) In this sense the term concludes "Act of 
 God."(c) 
 
 Test. Two tests, applicable in ascertaining whether an occur- 
 
 rence is an accident or not, are — 
 
 (a) Per Willes, J., Grill v. General Iron Screw Collier Co., L. E. 1 C. P. 
 600 at 612. In 35 L. J. C. P. at 330 this passage is amplified. WUles, J., 
 points out (I. c.) that " confusion has arisen from regarding negligence as a 
 positive instead of a negative v?ork." Post, 49. 
 
 (6) Per Shaw, C.J., Brown v. Kendall, 60 Mass, 292 at 295 ; Pugh v. 
 li. B. & S. C. Ey. Co., [1896] 2 Q. B. 248; Lloyd v. General Iron Screw 
 Collier Co., 3 H. & C. 284, per Bramwell, at 292 ; cp. Cornish v. Accident 
 Insurance Co., Ltd., 23 Q. B. D. 453. " Accident " is not actionable : Davis v. 
 Saunders, 2 Chitty, 639 ; Wakeman v. Eobinson, 1 Bing. 213. " Inevitable 
 accident " has been defined as an occurrence which has " taken place in 
 such a manner as not to have been capable of being prevented by ordinary 
 skiU and ordinary diligence " : " The Thomas Powell " v. " The Cuba," 2 
 Mar. Law. Cas. 344. See " The Marpesia," L. E, 4 P. C. 212 at 220, and 
 The Schwan— The Albano, [1892] .P. 419. The word " inevi&ble " thus 
 merely emphasizes the primary meaning of accident, and distinguishes it 
 from accident in its secondary sense. " An accident is that which 
 happens without the fault of anybody": per Brett, L.J., Chartered 
 Mercantile Bank of India v, Netherlands India Steam Navigation Co., 
 lOQ.B. 0.530. 
 
 (c) Nugent v. Smith, 1 C. P. D. 428 ; Nitro-Phosphate Co. v. London 
 & St. Katharine Docks Co., 9 Ch. D. 503, per Pry, J., at 515. Sunstroke 
 was held not an accident in Sinclair v. Maritime Passengers Assurance Co., 
 4 L. T. (N. S.) 15, as " we cannot think disease produced by the action of a 
 known natural agent can be considered accidental." " In the term accident 
 , , . some violence, casualty or OTs mo/or is necessarily involved." Falling 
 into a river during an epileptic seizure was held an accident in Winspear 
 V. Accident Insurance Co., 6 Q. B. D. 42 ; so was falling under a train in 
 Lawrence v. Accident Insurance Co., 45 L. T. (N. S.) 29. See also Eeynolds 
 V. Accidental Insurance Co., 22 L. T. (N. S.) 820 ; South Staffordshire 
 Tramways Co., Ltd. v. The Sickness and Accident Assurance Association, 
 Ltd., [1891] 1 Q. B. 402 ; and Stroud, Judicial Dictionary, sub voce. Post, 
 346. In 30 Law Magazine (5th series) 439, August, 1905, there is a valuable 
 paper read before the Medico-Legal Society of London entitled " Definitions 
 of Accident, Accidental, and Accidentally," by Mr. Stanley Atkinson of the 
 Inner Temple, where there is an apparently exhaustive classification of the 
 cases under the three words defined, and a consideration of them that 
 should be of the greatest value to resort to in any case of difficulty. There 
 is also a note to Paul v. Travellers' Insurance Co., 8 Am. St. E. 763-766 : 
 " What is death by accidental means ? " 
 
Definitions 17 
 
 (1) Was the result contemplated ? Chap. I. 
 
 (2) Was the result the ordinary and natural sequence 
 of the course of action preceding it ? (a) 
 
 The word "accident" is used also with a secondary 
 meaning, in which it signifies an occurrence following on 
 previous default or negligence. 
 
 (a) See per Lord Esher, M.R., Hamlyn v. Crown Accidental Insurance 
 Co., [1893] 1 Q. B. 750 at 753. In this case plaintiff seeing a marble rolling 
 down a slope stooped to pick it up, and in doing so wrenched his knee. 
 The injury was held to be caused by accident within the terms of an 
 insurance policy. Cp. Scarr v. General Accident Assurance Corporation, 
 Ltd., [1905] 1 K. B. 387, where injury to the insured's heart was the result 
 of violent exertion that was intended and therefore held not accidental. 
 ij Incapacity' arising from progressive natural decay is not even counted 
 sickness : Dunkley v. Harrison, 56 L. T. 660. 
 
 B.E.L. 
 
CHAPTER II 
 
 The Position of the Employee ' and his Workmen 
 AT Common Law 
 
 PEOPOSITION I 
 
 The duty of an employer to his workpeople must be General duty of 
 
 employer to 
 
 determined by reference to all the circumstances of time workman, 
 and place, and of the ordinary habits and safeguards in 
 working in the employment. A custom to be negligent 
 is not valid in law. 
 
 A particular kind of brattice cloth, well known to be inflammable, illustrations, 
 was kept without any accident happening for a long time in proximity 
 to an engine which emitted sparks. At last an accident occurred, and 
 it was contended that the previous immunity rebutted any case of default. 
 But long immunity from accident does not prove absence of carelessness, {a) 
 
 The man in charge of an engine while coaling had a fit and the engine 
 ran away. Injury having been caused, the railway company is charged 
 with negligence in not having two men on the engine. Since coaling is 
 usually conducted by one man without ill results, there is no default in 
 continuing a method not known to be unsafe, (h) 
 
 (a) Thomas v. Great Western Colliery Co., 10 T. L. E. 244. 
 
 (6) Hart v. Lanes. & Y. Ky. Co., 21 L. T. (N.S.) 261. The defendants 
 subsequently to the accident adopted another method of doing their work. 
 This was urged against them as evidence of their previous defective course. 
 Bramwell, B. {I. c. at 263), answers the argument thus: "People do not 
 furnish evidence against themselves simply by adopting a new plan in 
 order to prevent the recurrence of an accident. I think that a proposition 
 to the contrary would be barbarous. It would be, as I have often had 
 occasion to tell juries, to hold that, because the world gets wiser as it gets 
 older, therefore it was foolish before." The case, it is true, does not raise 
 specifically the duty of an employer to his workpeople. The principle 
 affirmed is the wider one of which the relation of employer and workpeople 
 is merely an instance. Beever v. Hanson, Dale & Co., 25 L. J. Notes of 
 Oases 132, is however such a case where Lord Coleridge, C.J., puts the point 
 very plainly. See Labatt, Master and Servant, 2278 et segc[. Post, 25 n. and 59. 
 
20 
 
 Liability at Common Law 
 
 Chap. II. An employer who provides machinery iit and proper for his work and 
 
 takes measures to have it superintended in a fit and proper manner, has 
 discharged his duty, {a) 
 
 PEOPOSITION II 
 
 An employer is not , liable for damage caused to his 
 rkman througt the ordinary risks of 
 or through the default of fellow-workmen. 
 
 Employer not 
 
 ordinary risks, workman through the ordinary risks of the employment 
 
 Illustrations. A. railway company agrees with a contractor to shunt their trucks upon 
 
 their line, and to supply horses and men for that purpose ; if the company 
 have boys at hand they are to supply them to assist in the shunting; 
 when they have not, the shunting, so far as they are concerned, is to 
 be done without boys. Shunting is dangerous when undertaken without 
 assistance. A workman had for several years been in the service of the 
 contractor shunting, sometimes with, sometimes without boys. When 
 shunting without assistance, he is injured. He brings an action against 
 the railway company. He cannot recover since he undertook the risk. (5) 
 
 A contractor agrees with a railway company to do work in a dark 
 tunnel while the ordinary service of trains is running. No precautions 
 are taken, and a workman of the contractor's, who had been working 
 
 {a) Weems v. Mathieson, 4: Maoq. (H. L. So.) 215, per Lord Wensleydale, 
 at 227. In an American case it was said, " It is a proposition of law that 
 the owner or employer must furnish tools and machinery reasonably safe 
 and adequate for the purpose of performing the work required of him. He 
 is not required to adopt every new idea of safety ; he is not even required 
 to adopt the very best and safest machinery, for that would break up 
 almost every establishment in the country. Everywhere new improve- 
 ments are constantly being made ; new safeguards invented. When they 
 become generally used, when they are generally adopted, then it is the 
 duty of the employer to use them ; but until the adoption of the machine 
 becomes common, until the new safeguard becomes general, until they are 
 in general use to a certain extent, so general as to convey notice to the man 
 using such a machine, they are not required to adopt every new safeguard " : 
 Iron Shipbuilding Works v. Nuttall, 119 Pa. St. 149 at 150. Cp. Baddeley 
 ■V. Earl Granville, 19 Q. B. D. 423. 
 
 (6) Membery v. G. W. Ky. Co., 14 App. Gas. 179. The position of a man 
 loading or unloading heavy packages is considered in Wilson v. Caledonian 
 Ey. Co., 37 Sc. L. R. 235. 
 
Employers Personal Default 21 
 
 there a fortnight, is injured by a passing train. The Court of Appeal Chap. II. 
 held that he cannot recover, {a) 
 
 A miner is being drawn up from' the pit in a cage. A fellow- 
 workman faUs to stop the engine as soon as the cage arrives at the 
 platform. The cage is in consequence overturned, and the miner is 
 killed. The accident is due to a risk of the employment. (J) 
 
 A waterman is employed to attend to barges at his employer's 
 premises. When on the barges preparing for his night duty he is 
 summoned by the manager to the office ; to reach which he has to pass 
 through the warehouse and cross the street ; while crossing he is knocked 
 down by a sack of peas which is being hoisted from a waggon by a crane 
 to an upper iloor of the warehouse. The accident is due to the careless- 
 ness of one of the men of the common employer leaving the rope by 
 which the sack is being hauled too slack. The risk is incident to the 
 employment, (c) 
 
 A butcher directs his servant to take goods in a van ; in consequence 
 of being overloaded the van breaks down and the servant is injured. 
 The accident arises from a risk of the employment, (oi) 
 
 A person in the employment of a railway company is injured by 
 another person in the same employment, but engaged in different duties 
 and while they are both engaged. He cannot recover, (e) 
 
 PROPOSITION III 
 
 An employer must safeguard his servant from the Butiiabiefor 
 
 ^ •" ° personal default. 
 
 employer's own personal default. 
 
 (a) Woodley v. Metropolitan District Ey. Co., 2 Ex. D. 384:. This and 
 the preceding case are instances of an action brought not against the 
 master but against his contractor. Mellish, L.J., would have determined 
 the case on the principles afterwards enunciated in Williams v. Birmingham 
 Battery and Metal Co., [1899] 2 Q. B. 338. 
 
 (6) Bartonshill Coal Co. o. Eeid, 3 Maoq. (H. L. So.) 266. 
 
 (c) Lovell V. Howell (1875), 1 0. P. D. 161. 
 
 (d) Priestley v. Fowler (1837), 3 M. & W. 1. 
 
 (e) Hutchinson v. York, Newcastle and Berwick Ry. Co. (1850), 5 
 Ex. 343. See also Parwell i>. Boston and Worcester Ed. Corporation, 
 45 Mass. 49 ; 3 Macq. (H. L. Sc.) 316. In M'Neill v. Kinneil Cannel & 
 Coking Coal Co., 35 So. L. E. 768, the sheriff substitute would not allow 
 the plea that the injury alleged was the fault of a fellow-servant, unless 
 the name of the fellow-servant was indicated ; but the Court reversed his 
 decision. Smithwhite v. Moore & Sons, 14 T. L. E. 461 — the case of a cut 
 arm while cleaning windows, through cracked glass. 
 
22 Liability at Common Laiv 
 
 Chap. II. One of two partners, owners of a coal mine, acts as raanagov of the 
 
 Illustrations niine. Through the shaft being unsafely constructed a collier is injured. 
 Both the partners are liable for the default of one. (a) 
 
 An employer goes with a lighted candle to detect an escape of 
 gas. Before the gas is turned off at the meter, an explosion results 
 and the servant is injured. He is entitled to recover against the 
 employer. (6) 
 
 PROPOSITION IV 
 
 versoiMi default, The duty of an employer to guard against personal 
 default, besides including the case of actual physical 
 interference with work, also cover the cases — 
 
 (1) Where machinery, tackle or material supplied for 
 the purposes of the work is insufficient, or the 
 general arrangement of the work is defective ; 
 
 (2) Where incompetent workmen are employed ; 
 
 (3) Where there is a neglect to observe statutory 
 requirements. 
 
 nittstrations. 0) ^ '^i'd^ stbne is carelessly left on the roof of a mine so that it 
 
 falls on workmen in the mine. If the circumstances are such that the 
 mine owners must be taken to have known of the insecure condition of 
 their works, they are liable for the consequences, (c) 
 
 Men leave a mine without working, as preliminary to entering on a 
 strike. An accident happens in drawing them up, through defective 
 tackle. The employer is liable for the injury, (d) 
 
 A labourer is employed to erect a scaflFold. The materials for the 
 scaffold are in bad condition. The labourer breaks several of the putlogs 
 
 (a) Mellors v. Shaw (1861), 1 B. & S. 437. 
 
 (6) Warren v. Wilder, 41 L. J. C. P. 104. See also W. N. 1872, 87. 
 
 (c) Paterson v. Wallace (1854), 1 Macq. (H. L. So.) 748. See Potts v. 
 Plunkett, 9 Ir. C. L. B. 290 ; cp. Hall v. Johnson, 3 H. & C. 589. 
 
 (d) Brydon v. Stewart (1855), 2 Maoq. (H. L. So.) 30 : cp. Tunney v. 
 Midland By. Co., L. R. 1 C. P. 291. 
 
Employer's Personal Default 23 
 
 ou account of their being unsound. One of the employers tells him to Chap. II. 
 
 break no more — that the putlogs would do very well. The labourer uses 
 
 such as he thought sound. One of the putlogs hei uses gives way, the 
 scaftold falls, and the labourer is injured. There is evidence for a jury of 
 the employers' liability, (a) 
 
 A workman is employed at a stone quarry to manage a crane. Others 
 are blasting rock. Notice of an explosion, but insufficient to allow of the 
 crane worker getting under cover, is given by the blasters. He is injured. 
 The defective system is to blame, and the employer is liable for the 
 consequences of it. (6) 
 
 A workman is employed drilling holes in a rock cutting. Men employed 
 in another department of the employers' work are simultaneously lifting 
 stones by means of a crane near by. Stones are thus swung over the 
 driller s head. One falls from the crane and injures him. With a good 
 system of work this would not happen. There is fault in the employer, (c) 
 
 (2) A boy is engaged by a foreman, to whom complaints are made of 
 his incompetence. No attention is paid to the complaints, and an accident 
 happens through the boy's incompetence. The employer is not liable to 
 the injured person for this, since the foreman is not shown to be incom- 
 petent ; and the incompetent boy is not engaged by the employer, who is 
 not bound personally to appoint his servants, {d) 
 
 The remark may here be interjected that to render a master liable for incompetent 
 
 1 . i. . 11 servant, 
 
 the appomtment of an mcompetent servant there must be shown— 
 
 (a) Incompetency of the servant, (e) 
 
 A workman is employed in the care and management of a valuable 
 printing press. Whilst so engaged a roller known as the " toprider " 
 jammed under the cylinder and did damage to the machine to the extent 
 of £30. The accident occurred through the workman's forgetfulness to 
 
 (a) Eoberts v. Smith, 2 H. & N. 213. 
 
 (6) Sword V. Cameron, 1 Dunlop 493, explained by Lord Cranworth in 
 BartonshiU Goal Co. v. Beid, 3 Macq. (H. L. So.) 266 at 290. See Cook v. 
 Stark, 14 B. 1. 
 
 (o) Smith V. Baker, [1891] A. C. 325 ; cp. Maodonald v. Udston Coal Co., 
 Ltd., 23 E. 504; M'Killop v. North British By. Co., 23 E. 768 ; Smith v. 
 Forbes, 24 E. 699. 
 
 (d) Smith V. Howard (1870), 22 L. T. (N. S.) 130. Under the Employers 
 Liability Act, 1880,' this is not so ; s. 2, sub-s. 3. See also per Lord 
 Cairns, Wilson v. Merry, L. E. 1 So. App. 326 at 332 ; Potts v. Port 
 Carlisle Dock and Ey. Co., 8 W. B. 525 ; 2 L. T. (N. S.) 283. 
 
 (e) The onus changes on proof of incompetency of the servant : Skerritt 
 V. Soallan, Ir. B. 11 C. L. 389 at 401 ; Edwards «. L. & B. Ey. Co., 4 P. & P. 
 530; Sullivan ii. Bennett Steamship Co., Ltd., Times newspaper, 10th 
 August, 1898. 
 
24 Liability at Common Lav) 
 
 Chap. II. fix the end of the " topiider " ia the forks before starting the machine.' 
 The employer is justified in dismissing the workman for this single instance 
 of forgetfulness. (a) 
 
 (6) "Want of care by the master. (J) 
 
 A painter is injured through a defective scaffold erected by a fellow- 
 servanl. The employer is not liable unless the person erecting it is shown 
 to be incompetent, and appointed without care, (c) 
 
 (3) Machinery is required by an Act of Parliament to be fenced so aa 
 to guard against danger to persons working at it. A servant enters upon 
 an employment in connection with the machinery while it is fenced as 
 required by the Act, and continues there after the fencing becomes broken 
 down, and the employment dangerous. The servant complains. A 
 promise is given to restore the fencing. Nothing is done, and the servant 
 is injured. The servant may recover, (ti) 
 
 Machinery is required by Statute to be fenced in order to afford security 
 to young people working in proximity to it. A positive enactment requires 
 that when any part of the machinery is used for any manufacturing pro- 
 cess it shall be securely fenced. Any person sustaining injury through 
 the breach of this enactment has a right to bring an action, (e) 
 
 A miner is killed through breach of a statutory duty imposed by the 
 Coal Mines Regulation Act, 1872 (35 & 36 Vict. c. 76). His representative 
 is entitled to recover. (/) 
 
 (a) Baster «. London and County Printing Works, [1899] 1 Q. B. 901. 
 A fortiori a single instance of incompetency may constitute such neglect 
 of duty as will .warrant dismissal without notice. But " an individual 
 who by- years of faithful service has shown himself trustworthy, vigilant, 
 and competent is not disqualified for further employment, and proved, 
 either incompetent or careless, and not trustworthy by a single mistake or 
 act of forgetfulness and omission to exercise the highest degree of caution 
 and presence of mind. The fact would only show — what must he true of 
 every human being — that the individual was capable of an act of negli- 
 gence, forgetfulness, or error of judgment " : Bauleo v. New York &c. Ed. 
 Co., 59 N. Y. 356. The intermediate cases are treated by Labatt, Master 
 and Servant, 409. Op. Hales v. Kerr, [1908] 2 K. B. 601. 
 
 (6) Tarrant v. Webb, 18 0. B. 797 at 804 ; Hoey v. Dublin and Belfast 
 Junction Ey. Co. (1870), 5 Ir. E. C. L. 206. 
 
 (c) Tarrant v. Webb, 25 L. J. C. P. 261. 
 
 {d) Holmes v. Clark, 6 H. & N. 349 ; 7 H. & N. 937. The distinction 
 between a statutory and a common law liability is treated in Britton v. 
 Great Western Cotton Co. (1872), L. E. 7 Ex. 130 at 136. See Eobb v. 
 Bullock, 19 E. 971 ; Shields v. Murdoch, 20 E. 727 ; Kelly v. Glebe Sugar 
 Befining Co., 20 E. 833. 
 
 (e) Coe V. Piatt, 6 Ex. 752 : 7 Ex. 460, and 923 ; Doel v. Sheppard, 
 5 E. & B. 856. 
 
 (/) Baddeley v. Earl Granville, 19 Q. B. D. 423. The reasoning of the 
 judpnents in this case is eminently unsatisfactory. See the rule formulated 
 
Employer'' s Personal Default 25 
 
 Chap. II. 
 PROPOSITION V 
 
 Where an employer works with his workmen, his Extent of 
 
 '^ •' liability for 
 
 liability for his personal defaults to them differs nothing p^™""^ ''^*'"»"- 
 from his liability to strangers or from the liability of one 
 workman to another. 
 
 An emplo3'er acted as his own banksman. One of the tram Illustration, 
 plates became loose. After he had been told of this it fell down 
 the pit, and severely injured a workman. The employer is liable 
 to the workman just as if the workman had never been in the 
 employment, (a) 
 
 in Clegg, Parkinson & Co. v. Earby Gas Co., [1896] 1 Q. B. 592. In James 
 V. Westlnghouse Brake Co., Times newspaper, 1st February, 1898, the 
 proposition that neglect to fence a dangerous machine, which is required 
 to be fenced by Statute, and from which neglect to fence an accident 
 happens, is evidence of neglect of a common law duty, seems to have 
 been disputed, on the ground that by the Factory Acts, 1878 and 1891, 
 a penalty of £iOO is imposed for the neglect, and that the penalty may be 
 awarded to the person injured by the neglect. The obligation in a case of 
 this sort is unequivooaUy laid down in Smith v. Baker, [1891] A. C. 325, 
 and in Tate v. Latham & Son, [1897] 1 Q. B. 502. See now Factory and 
 Workshop Act, 1901 (1 Edw. 7, c. 22), sees. 10 and 136. To determine 
 what is an adequate case on which to found a charge of negligence, regard 
 must be had to " the state of knowledge at the time. If a particular pre- 
 caution has not been hitherto known or used, or if its use is obscure, the 
 omission of it is not Aegligence; but if it is used to any considerable 
 extent, that changes the case, and makes the omission some evidence of 
 negligence " : per Grove, J., Blamires v. Lanes, and Y. Ey. Co., L. R. 8 
 Ex. 283 at 289, and post, 62. When, then, there is an universal custom to 
 fence certain machinery, based, moreover, on a statutory duty, neglect to 
 do so is swcelj primd facie evidence of negligence. See Coe v. Piatt, 6 Ex. 
 752, per Parke, B., at 757. In Holmes v. Clarke, in the Ex. Ch. 7 H. & N. 
 987, a diversity of opinion appeared ; but in Groves v. Lord Wimborne, 
 [1898] 2 Q. B. 402, the Court of Appeal held that where " there has been a 
 failure in the performance of an absolute statutory duty " "there is no 
 need for the plaintiff to allege or prove negligence on the part of any one 
 in order to make out his cause of action." In lies v. Abercarn Welsh 
 Flannel Co., 2 T. L. E. 547, proof of a breach of a statutory obligation to 
 fence machinery was held evidence of negligence, but it was further held 
 that proof of such a breach of duty did not disentitle those guilty of it to 
 set up a defence of contributory negligence. Groves v. Lord Wimborne, 
 supra, per Williams, L.J., at 419 ; Bett v. Dahneny Oil Co., 7 F. 787. 
 
 (a) Ashworth v. Stanwix, 8 E. & E. 701. This case is distinguished in 
 Drew V. East Whitby, 46 Upp. Can. Q. B. 107 ; and is followed in Pinnighan 
 ■0. Peters, 23 Dunlop 260. For the authority for the latter portion of the 
 proposition, see ante, 5. 
 
26 
 
 Liability at Common Lav) 
 
 Chap. II. 
 
 Deficient 
 Bupervision. 
 
 lustrations. 
 
 PEOPOSITION VI 
 
 An employer's duty is not discharged when he has 
 appointed competent servants, and given them instructions 
 to provide fit and proper machinery, if the employer might 
 have known, by the exercise of reasonable care, that the 
 machinery actually supplied is defective. 
 
 A contractor employs men on a work. The superintendence of tlie 
 plant is the duty of the foreman. One of the workmen is injured through 
 the fall of a scaffold-pole. The fall is caused through the rottenness of 
 the end which had been in the earth two years without examination. The 
 contractor ought to have seen that the pole was iu a fit state, and is liable 
 for his breach of duty, (a) 
 
 A workman is injured by the breaking of a chain used in the works 
 on which he is engaged. Adequate inspection would have disclosed the 
 defect. The employer is liable. (5) 
 
 PEOPOSITION VII 
 
 Improper ^"^ employer is not liable for supplying inefficient 
 
 ™acbioe.y or j^^chinery or tackle :— 
 
 (1) Where the workman enters on the service having 
 the same means of knowledge of the danger or 
 inefficiency of the machinery as the master ; 
 
 (2) Where the workman either expressly or impliedly 
 undertakes to work under conditions of greater 
 risk than the normal risks of the employment. 
 
 (a) Webb v. Rennie, 4 F. & P. 608. The principle at the root of this 
 case is the same as that of Tarry v. Ashton, 1 Q. B. D. 314 : there is a 
 duty periodically to examine things which tend to get out of condition. 
 Mamey v. Scott, [1899] 1 Q. B. 986, is the case of a ship's charterer being 
 held liable to a stevedore's labourer for an accident arising from a 
 defective ladder. The duty to inspect is, however, very indistinctly 
 stated. 
 
 (6) Murphy v. Phillips (1876), 35 L. T. (N. S.) 477. This case is dis- 
 tinguished in Black v. Ontario Wheel Co., 19 Ont. K. 578 ; and in Hanrahan 
 ■0. Ardnamult Steamship Co., 22 L. R. Ir. 55. 
 
Illustrations. 
 
 Improper Machinery 27 
 
 (1) A sujar reSuer employs a labcmrer in filling sugar moulds and Chap. II. 
 hoistiug them when filled to a higher floor in the warehouse. Through 
 motives of economy a cheaper way of raising the moulds than the ordinary 
 one is adopted ; an accident occurs, and the labourer is injured. The 
 refiner's act may be inhuman, but does not subject him to liability if the 
 workman knows as well as the employer the nature of the machinery he 
 undertakes to use. (a) 
 
 A person employs another to carry a carboy of nitric acid, but does 
 not explain to him the dangerous character of his burden. The carrier 
 trips, falls, and is injured by the acid. The employer is answerable. (6) 
 
 A dock labourer claims against his employers, alleging that an iron 
 door of a warehouse in the docks fell upon him, and that the employers 
 knew of its defective condition. In the absence of an allegation that the 
 plaintiff was ignorant of the condition of the door, no ground of action is 
 disclosed, (c) 
 
 A seaman enters upon service on a vessel that is unseaworthy and 
 leaky. In consequence of the condition of the vessel the seaman suffers 
 damage. In the absence of allegations that the shipowner knew of the 
 defects, and that the seaman did not know of them, no cause of action 
 appears, {d) 
 
 Statutory rules prescribed for testing the rope by which miners descend 
 into a colliery are habitually neglected. A fire occurs, by which the rope 
 is injured. The banksman advises a miner to test the rope before 
 descending by means of it. The miner refuses to do so ; the rope breaks, 
 the miner is killed. He is the cause of his own death, (e) 
 
 (2) A railway company's staff is confessedly insufficient. One' of their 
 workmen continues at the work for three months till he is injured. He 
 has no legal redress. (/) 
 
 (a) Dynen v. Leaoh, 26 L. J. Ex. 221. A similar decision would now 
 be very difficult to obtain. See the note to Williams v. Clough, 3 H. & N. 
 258 at 259 on this case. Aasop tfr Alsop v. Yatfis, 2 H. & N. 768 ; 27 L. Z. 
 Ex. 156. 
 
 (6) Earrant v. Barnes, 11 0. B. (N. S.) 553. See Saxton v. Hawkes- 
 worth (1872), 26 L. T. (N. S.) 851 at 853 ; Smith v. Dowell, 3 F. & E. 238. 
 
 (c) Griffith V. London and St. Katharine Docks Co., 13 Q. B. D. 259. 
 
 (d) Couch V. Steel, 6 E. & B. 402. 
 
 (e) Senior v. Ward, 1 E. & B. 385. This case also is invariably 
 " distinguished " when now cited. The reasoning in Williams v. Birming- 
 ham Battery and Metal Co., [1899] 2 Q. B. 338, would now induce a 
 difEereut conclusion. There must also be a finding that the workmen 
 undertook the risk. 
 
 (/) Skipp V. Eastern Counties By. Co. (1853), 9 Ex. 228. 
 
28 
 
 LiaMlity at Common Law 
 
 Chap. II. A workman is engaged in excavating a cellar. A wall has to be 
 
 broken through and the earth taken out. The wall gives way, and the 
 workman is injured. The injury is a risk of the work, (a) 
 
 A porter is engaged in unloading or shunting trucks. The trucks are 
 placed on a turntable. By reason of an increase in business and the use 
 of larger trucks, the trucks cannot be safel3' turned on the table, unless by 
 a careful person. The porter attempting to turn one is struck by it and 
 crushed. He has undertaken the risk of the injury. (5) 
 
 PEOPOSITION VIII 
 
 Neglect of the 
 workman to use 
 the apparatus 
 supplied. 
 
 Illustrations. 
 
 Where an employer has supplied proper apparatus he 
 is not liable to his workmen for negligence in its use. 
 
 A mine-sinker is working at the bottom of a shaft, up which tubs are 
 drawn to the top. He assists in attaching these to a rope which runs 
 over a pulley at the mouth of the shaft. A jiddy or slide is provided to 
 prevent the tub from falling back when unhooked. This is not used. 
 A tub falls and injures the mine-sinker. Failure to use the jiddy is 
 negligence of a fellow-servant, (c) 
 
 Efficiency of 
 plant. 
 
 PEOPOSITION IX 
 
 An employer does not discharge his duty merely by 
 providing machinery, tackle and material adequate at the 
 outset of the work. He must provide during its continu- 
 ance against their deterioration to any extent that may 
 substantially increase the danger'to the servant. 
 
 The master's duty is " to keep the machinery in the condition in 
 which from the terms of the contract or the nature of the employment 
 the servant had a right to expect that it would be kept." (d) 
 
 (a) Booker v. Higgs, 3 T. L. E. 618 ; Ogden v. Rummens, 3 P. & F. 751. 
 (6) Riley v. Baxendale, 6 H. & N. 445. 
 
 (c) Grifaths v. Gidlow, 3 H. & N. 648. 
 
 (d) Clarke v. Holmes, 7 H. & N. 937. 
 
Irr^proper Machinery 29 
 
 The old cases must now be taken in their connection with the principle Chap. II. 
 
 enunciated in Smith v. Baker, (a) A workman cannot be held to have 
 
 undertaken a risk unless he knew of its existence and appreciated or 
 had the means of appreciating its dauger, and the mere fact of hia con- 
 tinuing at his work with full knowledge and appreciation will not of 
 itself necessarily imply his acceptance, for " it must have been a question 
 of fact and not of law whether the plaintiff undertook the employment 
 with an appreciation of the risk." 
 
 The presumption of the common law till the date of Smith v. Baker 
 is abolished, and the defendant has to prove an intention on the plaintiff's 
 part (which may never have passed his lips) to take the ordinary risks of 
 the employment. The fact of working in the surroundings is now not 
 even prima facie proof of his having done so. 
 
 The principle is stated in Williams v. Birmingham Battery and Metal 
 Co. (6) " If the employment is of a dangerous nature, a duty lies on 
 the employer to use all reasonable precautions for the protection of the 
 servant. If by reason of breach of that duty a sei-vant suffers injury, 
 the employer is primd facie liable ; and it is no sufficient answer to the 
 prima facie liability for the employer to show merely that the servant 
 was aware of the risk and of the non-existence of the precautions which 
 should have been taken by the employer, and which, if taken, would 
 or might have prevented the injury. In order to escape liability the 
 employer must establish that the servant has taken upon himself the 
 risk without the precautions. Whether the servant has taken that upon 
 himself is a question of fact to be decided on the circumstances of 
 each case." (c) 
 
 Employers have control of a wall. A workman is engaged working lUuetrations. 
 on the wall ; the condition of it deteriorates till it becomes ruinous and 
 falls. There is a duty on the employers to prevent injury arising from 
 the altered condition of the wall, of which they have cognizance ; and 
 they are liable for the accident, (d) 
 
 A chain used in work is worn out. An accident results. The 
 employer is liable for not having the chain periodically inspected, (e) 
 
 {a) [1891] A. C. 825. 
 
 (6) [1899] 2 Q. B. 338 at 345. (c) Ante, 9. 
 
 (d) Vaughan v. Cork and Youghal Ey. Co. (1860), 12 Ir. C. L. B. 297. 
 For the Scotch oases see Watt v. Neilson, 15 B. 772 ; Henderson v. Carrpn 
 Co., 16 B. 633 ; and particularly Milne v. Townsend, 19 B. 830. 
 
 (e) Murphy v. Phillips (1876), 35 L. T. (N. S.) 477. There is a duty 
 of inspection at suitable intervals, failing which an inference of negligence 
 is drawn. If the chain has been properly inspected and breaks notwith- 
 standing, unless there is something more in the evidence, there is no primd 
 facie evidence of negligence. 
 
 Blackburn, J., thus states the law in Tarry v, Ashton, 1 Q. B. D. at 819 
 
30 
 
 Liability at Common Law 
 
 Chap. II. -A- scafiFold-pole becomes rotten, breaks and causes injury. 
 employer is in fault for not having it inspected, (a) 
 
 The 
 
 PROPOSITION X 
 
 Knowledge of The knowledge of a workman of dansrerous incidents 
 
 dangerous ^ ° 
 
 conditions. gr Conditions of the work on which he is engaged is not 
 by itself sufficient to preclude his recovering from his 
 employer for injuries received therefrom. 
 
 Illustrations. ^ defective rope is used in hoisting casks. The employer promises 
 
 to repair it, but does not do so. The workman continues to use it. The 
 rope breaks, and a cask falls on the workman. The workman's know- 
 ledge does not countervail the employer's default. (6) 
 
 —the case of a lamp overhanging the highway which fell on a passer-by. 
 " The occupier would be bound to know that things like this lamp will 
 ultimately get out of order, and, as occupier, there would be a duty cast 
 upon him from time to time to investigate the state of the lamp. If he 
 did investigate, and there were a latent defect which he could not dis- 
 cover, I doubt whether he would be liable ; but if he discovers the defect 
 and does not cure it, or if he did not discover what he ought on investiga- 
 tion to have discovered, then I think he would clearly be answerable for 
 the consequences." See 'post, 74. In Batohelor v. Fortescue, 11 Q. B. D. 
 477, Smith, L.J., says, on the question of whether there was evidence of 
 negligence to leave to a jury where a chain broke in using, " We think 
 that, though slender, coupled with the admission in the pleadings that 
 the chain was somewhat worn, it could not properly have been with- 
 drawn from the jury." Mr. Buegg's conclusion. Employers' Liability, 
 7th ed.j. 185, that the breaking of a chain by itself afiords no evidence 
 of negligence must therefore be qualified by the consideration that there 
 is a duty periodically to examine the chain, or whatever the article is, 
 if it tends to deteriorate in the lapse of time. The periods at which 
 an examination should be held are, however, somewhat vague. The 
 authorities are marshalled with his usual thoroughness by Mr. Labatt, 
 Master and Servant, 338-359. 
 
 (a) Webb v. Rennie, 4 P. & F. 608 ; Allen ii. New Gas Co., 1 Ex. D. 251, 
 so far as it is in conflict with this case must be considered not law. 
 
 (ft) Holmes v. Worthington, 2 F. & F. 533. The Scotch case of 
 Crichton v. Keir, 1 Macph. 407, seems to be decided on a misapprehension 
 of the facts in Clarke v. Holmes, 7 H. & N. 937. Eraser v. Hood, 15 B. 
 178, follows Crichton v. Keir. In Wilson v. Boyle, 17 B. 62, the case is 
 concluded by findings of the jury. See Wilson v. Caledonian Bv. Co., 37 
 Sc. L. E. 235. ^ ' 
 
Knowledge 31 
 
 A wovkman's duty is to oil raaohiaery dangerous if not fenced. When Chap. II. 
 
 lie enters the employment the machinery is fenced ; subsequently the 
 
 fencing becomes broken, and it is not repaired. The workman com- 
 plains, but continlies at the work. He is injured. He can recover from 
 his employer, (a) 
 
 PKOPOSITION XI 
 The knowledge of a workman of dangerous incidents what is 
 
 ° knowledge. 
 
 or conditions of the work on which he is engaged, to 
 preclude his recovering from his employer in respect of 
 injuries received therefrom, must be knowledge actively 
 present to his mind at the time of entering upon the work 
 — i.e. knowledge combining both perception of the danger, 
 together with comprehension of the risk. 
 
 A driver is supplied by his employer with a vicious horse. He com- illustrations, 
 plains, but continues to drive it. He is kicked. His knowledge does not 
 necessarily preclude his recovering against his employer. (6) 
 
 A workman is engaged in drilling a rock. Above him is, a crane 
 lifting stones. The position of the crane and the character of the 
 work going on is apparent. His continued working in these cir- 
 cumstances does not shut him out from denying his acceptance of 
 the risk, (c) 
 
 (1) A workman falls into an unfenced vat open to view, in a room in 
 which he has been at work for many months. 
 
 (2) A builder is employed to mend the broken slates on a roof. He 
 tumbles off. 
 
 (3) A bridge is in a dangerous condition. A person on the premises 
 where the bridge is, is injured in consequence. Another workman is 
 thereupon directed to repair the bridge, and his attention is called to its 
 dangerous condition. In doing the work he is injured. 
 
 (a) Holmes v. Clarke, 6 H. & N. 349 ; 7 H. & N. 937. 
 (6) Yarmouth v. Prance, 19 Q. B. D. 647. 
 
 (c) Smith V. Baker, [1891] A. C. 325 ; Williams v. Birmingham Battery 
 and Metal Co., Ltd., [1899] 2 Q. B. 338 ; Salpaond, Torts, 348, 359. 
 
32 
 
 Liability at Common Law 
 
 Chap. II. I" none of these cases can the workman recover, (a) 
 
 An engine driver who knows that another engine driver in his 
 employer's service is incompetent is injured thereby. His knowledge is 
 strong evidence of his assenting to take the risk thereof, but is not 
 conclusive. (J) 
 
 A workman descending from an elevated tramway slips, falls and is 
 injured. No ladder or other safe means of descending is provided by 
 the employers. To discharge the employers there must be a finding of 
 fact that the workman undertakes the risk of dispensing with performance 
 of the employer's duty towards him. (c) 
 
 PEOPOSITION XII 
 
 When 
 
 knowledge 
 
 presumed. 
 
 Illustrations. 
 
 Knowledge by a workman of dangers incidental to 
 the particular work on whibli lie is employed is to be pre- 
 sumed; but knowledge of dangers incidental to the general 
 system of the employment, and not necessarily attaching 
 to the particular work, must be shown to be undertaken 
 by the workman. 
 
 A labourer is injured by the fall of a sugar mould that he is assisting 
 to hoist. The accident happens through the substitution of a cheaper 
 and less efficient method of raising the sugar moulds for a more costly 
 and safer one. The presumption is that the labourer knew of the 
 danger, (d) 
 
 (o) Thomas i). Quartermaine, 18 Q. B. D. 685. But now in all . the 
 finding of fact must be left to the jury. Ante 29. See WaUaoe v. Culter 
 Paper MiUs Co., Ltd., 19 R, 915. 
 
 (i) Hoey v. Dublin and Belfast Junction By. Co., 5 Ir. B. C. L. 206. 
 In Thomas v. Quartermaine, 13 Q. B. T>. 685 at 696, Bowen, L.J., says : 
 " Mere knowledge may not be a conclusive defence. There may be a 
 perception of the existence of the danger without comprehension of the 
 risk." " There may, again, be concurrent facts which justify the inquiry, 
 whether the risk though known was really encountered voluntarily." 
 
 (c) Williams v. Birmingham Battery and Metal Co., [1899] 2 Q. B. 338. 
 This case seems absolutely inconsistent with Dynen v. Leach, infra. The 
 decisions seem to have veered round to the principle of the canon law : 
 PrcBsumitur ignorantia-, ubi scientia non jgrohatwr : Sext, V. De Begulis 
 Juris, 48. 
 
 (d) Dynen v. Leach, 26 L. J. Ex. 221. The tendency of modem oases 
 is certainly in a contrary direction to this case. When cited it is most 
 generally distinguished ; e.g. Fowler v. Lock, L. E. 7 C. P. 272 at 278 ; and 
 
Knowledge 33 
 
 A labourer is injured wliile working at undermining a wall. He is Chap. II, 
 presumed to liave known the danger, {a) 
 
 A stone is left in the roof of a mine in a dangerous position. It falls 
 on a miner who is digging out coal. He must be shown to have under- 
 taken the danger. (J) 
 
 A workman is engaged in working a crane. Near him others are 
 working blasting rock. He is injured by an explosion. There is no 
 presumption that the workman undertakes the risk, (c) 
 
 PEOPOSITION XIII 
 No obligation on an employer to alter or improve imperfect and 
 
 "I; deteriorated 
 
 macninery is presumed where the workman knowingly maobinery. 
 enters on the employment with the machinery in any 
 particular condition. An obligation is presumed where 
 during the employment machinery becomes deteriorated. 
 
 A woi'kman undertakes an employment which is in its nature illustrations. 
 dangerous. He does so as his own insurer against the risk, {d) 
 
 A workman enters on an employment not in its nature dangerous, but 
 is supplied with defective tools, and the machinery is in bad condition to 
 his knowledge. He cannot recover for injury sustained in consequence 
 
 since Smith v. Baker, [1891] A. C. 325, the matter is never withdrawn 
 from the jury. See the note to Williams v. Clough, 3 H. & N. 258 at 259. 
 The extent to which the judicial legislation in Smith v. Baker — for the 
 dicta of the Lords come to nothing short of this — has remodelled the law 
 may be seen by reference to Medway v. Greenwich Inlaid Linoleum 
 Company, Limited, 14 T. L. B. 291, and WUliams o. Birmingham 
 Battery and Metal Co., [1899] 2 Q. B. 338. Cp. Lloyd v. Woolland 
 Brothers, Times newspaper, 7th Nov., 1902. 
 
 (o) Ogden v. Eummens, 8 F. & F. 751. 
 
 (6) Paterson v. WaUaoe (1854), 1 Macct. (H. L. So.) 748. 
 
 (c) Sword V. Cameron, 1 Dunlop 493. See Smith v. Baker, [1891] 
 A. C. 325. Proof of knowledge of risk, it must be borne in mind, is not 
 enough to disentitle the workman to recover. There must be also the 
 finding of an agreement to undertake the risk : Williams v. Birmingham 
 Battery and Metal Co., [1899] 2 Q. B. 338. Ante, 8. 
 
 (d) Booker v. Higgs, 3 T. L. E. 618, per Lord Coleridge, C.J.: "If it 
 were negligence to direct a man to do work more or less dangerous, it 
 would be impossible to do such work." 
 
 B.E.L, D 
 
34 Liability at Common Law 
 
 Chap. II, thereof, unless the condition of the tools and machinery has deteriorated 
 since he undertook the employment, (a) 
 
 A wall, part of the premises on which a workman is engaged, becomes 
 ruinous and dangerous after the workman was engaged in the service, and 
 while he is actually employed at the work. The employer is bound to 
 take precautions. (6) 
 
 PKOPOSITION XIV 
 Defective An employer is not responsible to his workmen for 
 
 management j. ./ x 
 
 maotitoery i^^j^ry resulting from the defective management of reason- 
 ably efficient machinery by other servants in whose 
 selection due care has been exercised. 
 
 Illustiationa. A miner is upset while being drawn up from the pit in a cage which 
 
 is unskilfully handled by the workman in charge of the winding apparatus. 
 The employer is not liable, (c) 
 
 The duty of a yardman is to examine all plant before it goes out from 
 the yard, so that no defective plant is issued. A workman is injured 
 by the breaking of a round of a ladder passed by the yardman. The 
 employer is not liable, (d) 
 
 Employers provide a train to carry their workmen to and from their 
 works, and charge nothing for the accommodation, nor do they constrain 
 their workmen to use the train, which passes under a bridge. A work- 
 man — a mason, is engaged under the engineer of the works to strengthen 
 the bridge, and to that end erects a scaffolding close to the line. A 
 workman at one of the two collieries which are being worked in conjunction 
 is returning home seated on the floor of the carriage, with his feet project- 
 ing beyond the carriage step. As the train passes under the bridge his 
 
 (a) Dynen v. Leaoh, 26 L. J. Ex. 221, per Bramwell, B. Clarke v. 
 Holmes, 7 H. & N. 937, per Cockburn, C.J., at 943 and approved by Kelly, 
 O.B., Murphy v. Phillips, 35 L. T. (N. S.) 477 at 478. See further per Lord 
 Oranworth, Bartonshill Coal Co. v. Reid, 3 Maoij. (H. L. So.) 266 at 290. 
 But see note (a). 
 
 lb) Per Pigot, C.B., Vaughan v. Cork and Youghal By. Co., 12 Ir. 
 C. Ii. E. 297. See too Clarke v. Holmes, 7 H. & N. 937, and ante, 22; also 
 Armour v. Hahn (1885), 111 U. S. 313. 
 
 (c) Bartonshill Coal Co. v. Raid, 3 Macq. (H. L. So.) 266. 
 
 {d) Ormond -o. Holland (1858), E. B. & E. 102. See ante, 28, as to 
 incompetent servants. 
 
Statutory Obligation 35 
 
 foot catches the scaffolding ; he is thrown on the line and killed. In an Chap. II. 
 
 action under Lord Campbell's Act, the jury finds that the accident is 
 
 caused by the negligence of the mason and the engineer. The risk is a 
 risk of the employment, and no difference is made by the workman having 
 left his work and being on his way home, if he is still on the premises 
 where he works, (a) 
 
 A chorus girl is engaged to perform in a pantomime. As she is leaving 
 the stage where scene shifters are shifting the scenery she is injured by 
 the fall of a piece. The employer is not liable since the chorus girl 
 impliedly undertakes as incident to the employment the risk of negligence 
 on the part of one engaged in the same employment. (6) 
 
 Men are engaged by a firm of ballast contractors to ballast a ship. 
 In the ordinary way this work is done by hand winches. The men ask 
 to be allowed to use the ship's donkey engme, and obtain permission on 
 condition that they get a competent man to work the engine and pay 
 him. The engine is accordingly handed over to them, and while being 
 used explodes and injures a man. The ship owners are not liable. The 
 lending is gratuitous, and liability does not arise unless there is conceals 
 ment of any particular circumstance, e.g. long non-user, or negligence in 
 not disclosing defect. There is no duty of examination, (c) 
 
 PEOPOSITION XV 
 Where a statutory obligation is imposed for the pro- statutory safe- 
 
 , guards, 
 
 tection of workmen, the workmen may contract themselves 
 out of the same ; provided that — 
 
 (1) The statutory obligation is imposed for the benefit 
 of a class only, and not for the benefit of the 
 community at large ; and 
 
 (a) Ooldrick v. Partridge, Jones & Co., Ltd., 24 T. L. E, 646, 
 (6) Burr v. Theatre Eoyal, Drury Lane, [1907] 1 K. B. 544. 
 (c) Coughlin v. Gillison, [1899] 1 Q. B. 145. 
 
36 Liability at Common; Law 
 
 Chap. II. (2) In making the contract there is consideration 
 
 given, and neither force, fraud, duress nor undue 
 
 influence used. 
 
 Quilibet potest renunciare juri pro se introdudo. (a) 
 
 Uiasirations. At the time of the passing of the Employers Liability Act, 1880, 
 
 miners contribute to a benefit fund in conjunction with their employer. 
 One of the benefits is an allowance made to the widow and family of 
 any workman-contributor killed in the course of his employment. On 
 the day on which the Act comes into operation the employer publishes 
 a document which is brought to the notice of the workmen, and which 
 requires adhesion to its terms as a condition of employment. By it the 
 employer engages to continue his contribution to the benefit fund in 
 consideration of the workmen abandoning the benefits of the Act. A 
 miner who continues at work on the terms of the employer's circular is 
 killed while thus engaged. In the absence of force, fraud or duress, and 
 there being consideration, his widow is bound by his renunciation, (h) 
 
 A youth under age enters the service of a railway company. He 
 agrees to become a member of an insurance society to which the 
 employers contribute, and to accept the advantages of the society in 
 lieu of any claims under the Employers Liability Act, 1880. He is 
 injured while stiU under age, and brings an action by his next friend 
 against his employers, claiming to disaffirm his contract. The contract 
 was for his benefit and binding on him. (c) 
 
 A boy between thirteen and fourteen years of age, employed at a 
 colliery, makes an agreement with a railway company by which, in con- 
 sideration of being allowed to travel to and from his work on the railway 
 on special terms made between the colliery proprietors and the railway 
 company, he agrees to renounce any claim against the company for 
 compensation for injury or loss occasioned by the negligence of the 
 company or their servants. He is injured through the negligence of the 
 company's servants. The agreement is not binding on him, as it was to 
 his detriment, (d) 
 
 (a) Bowbotham v. Wilson, 8 E. & B. 123 ; see per Martin, B., at 161. 
 Lord Weatbury, 0., quotes the maxim in the form : — Ouigue competit 
 renunciare jiiri pro se mtroducto in Enohin v. Wylie, 10 H. L. C. at 15. 
 Post, 294. 
 
 (ft) Grifaths V. Earl of Dudley, 9 Q. B. D. 357. 
 
 (c) Clements v. L. & N. W. By. Co., [1894] 2 Q. B. 482. 
 
 (d) Flower v. L. & N. W. By. Co., [1894] 2 Q. B. 65. The element of 
 statutory obligation is wanting in this case. The illustration is, however, 
 
Bisks of Employment 37 
 
 Chap. II. 
 PEOPOSITION XVI — 
 
 Where the risk of the employment is apparent at the Apparent risk. 
 time of entering on the employment, the presumption of 
 law is that the workman enters on the employment on the 
 terms of encountering the risk, even though in fact he 
 has no knowledge of its existence. 
 
 Volenti nonfit injuria, (a) 
 
 A workman is engaged on machinery wherein is a defect open and lUuBtrations. 
 palpable. Whether, at the time of entering on the employment, he knew 
 of its existence or not he is presumed to have accepted the employment 
 subject to the risk, though a jury may find the fact to be otherwise. (6) 
 
 A workman falls into an unfenced vat, open to view in a room in which 
 he has been at work for many months. He is presumed to have accepted 
 the risk of the employment, though a jury may find the fact to be other- 
 wise, (c) . . ■ 
 
 A workman nndertakes work on unsafe premises. The om«s is on tha 
 workman to show his employer's knowledge and his own ignorance of the 
 unsafe conditions of the work, (d) 
 
 Proposition XVI. and the illust^'ations to it must be taken subject to 
 the very material modifications aifirmed in Williams v. Birmingham 
 
 given as indicating the constituents to be taken into account under clause 
 2 of the proposition; see Ghitty, Contracts (13tli ed.) 20, n. (r), 198-201, 
 562, 583-587. Where an Act of Parliament in effect makes a contract for 
 a man, he is not per se prohibited from waiving his rights to the benefits 
 secured to him ; but when a penalty is imposed by Act of Parliament for 
 dbing or omitting something, a person subject to the Act cannot contract 
 himself out of it : Inre Cork and Youghal Ey. Oo„ L..R. 4 Ch. 748 ; Grifaths 
 V. Earl of Dudley, 9 Q. B. D. 357. 
 
 (a) Wing. Max. 482. This maxim is found in Homer, Iliad, 4. 43 : txav 
 ieKovTi ye Suntf and can be traced to Y. B., 33 Edw. I. (ed. Horwood) at 9; 
 and, in the form Sdenti et- consentienti non .fit injuria neque dolus, to the 
 Canon law : Sext. V., De Eegulis Juris 28, While Manwood, J., appeals 
 to it as an axiom, in Grendon v. Bishop of Lincoln (1575) Plow. 493. ^ See 
 again Home v. Widlake, Yelv. 141 ; and an article in the JourAal of the 
 Society of Comparative Legislation, New Series, No. XVIII. (December, 
 1907), 185 ; Labatt, Master and Servant, 968 ; Salmond, Torts, 46. In Sir 
 W*Uer Scott's The Betrothed, Father Aldrovand is made to say: "I 
 hold with the learned scholiast, Volenti non fit injuria;" o. 29, about 
 two-thirds through. 
 
 (6) Yarmouth v. Prance, per Lord Esher, M.R., 19 Q. B. D. 647 at 653. 
 
 (c) Thomas v. Quartermaine, 18 Q. B. D. 685. 
 
 (d) Griffiths v. London and St. Katharine Docks Co., 13 Q. B, D. 259. 
 
38 
 
 Liability at Common Law 
 
 Chap. 11. Battery and Metal Company, and that the question is always for 
 the jury, (a) 
 
 The law as thus modified was invoked as the reason for granting the 
 • new trial in Isaacson and Another v. New Grand Clapham Junction, 
 
 Ltd. (Z>) 
 
 Eisk super- 
 added. 
 
 lUusLratlong. 
 
 PEOPOSITION XVII 
 
 Where a risk is added after tlie commencement of the 
 employment, the presumption! is that the workman does 
 not undertake the risk till it appears that he has actual 
 knowledge and a full appreciation thereof, and notwith- 
 standing, has continued in his employment ; and not even 
 then if his continuance in the employment is explained 
 by other circumstances. 
 
 A workman is engaged on machinery. A defect subsequently becomes 
 apparent thereon. The workman reports it. The employer promises a 
 remedy, and induces the man to continue to work. There is no pre- 
 sumption that the workman accepts the risk, (c) 
 
 A workman, who never in fact engaged to incur a particular danger 
 finding himself exposed to it, complains. To avoid dismissal he continues 
 at the work and is injured. It is for a jury to say whether his continuance 
 at work operates as an undertaking of the risk, {d) 
 
 A workman is engaged in circumstances where the acceptance or nOii" 
 acceptance of certain risks is left to implication. He cannot be held to 
 have undertaken them unless he knew of their existence, and appreciated 
 or had the means of appreciating the danger ; and not necessarily even 
 then, since the conclusion to be drawn may vary with the circumstances 
 of each case, (e) 
 
 statutory duty 
 unperformed. 
 
 PEOPOSITION XVIII 
 
 Where a statutory duty is imposed on the employer, 
 and is unperformed and an accident happens to a workman, 
 
 (a) [1899] 2 Q. B. 338. See Proposition IX., ante, 29. 
 (i) 19 T. L. R. 150. 
 
 (c) Clarke v. Holmes, 7 H. & N. 937, per Cockburn, C.J., at 945. 
 
 (d) Yarmouth v. France, 19 Q. B. D. 647, per Lindley, L.J., at. 661. 
 
 (e) Smith «. Baker, [1891] A. 0. 325, per Lord Watson, at 855. 
 
Duty to Young Persons 39 
 
 the presumption is that the employer is in default ; and Chap. II. 
 
 this is not displaced by proof that the workman had equal 
 
 knowledge or means of knowledge, with the employer. 
 
 By Statute (a) there is an unqualified duty to fence " every flywiieel illustration. 
 directly connected with the steam-engine, or water-wheel, or other 
 mechanical power," in a factory. An engine-driver's duty requires him 
 to grease the bearings of a fly-wheel. To do this he has to stand on a 
 wall, in a cavity made for the purpose, into which he crawls through the 
 spokes of the fly-wheel. At this place the fly-wheel is unfenced. On the 
 sixth morning of his employment the engine-driver is caught by the fly- 
 wheel and killed. The employers are in fault in not having fenced the 
 fly-wheel. They are prima facie responsible. (6) 
 
 PEOPOSITION XIX 
 
 There is a greater duty to take care on an employer in special duty to 
 
 il. c cc >> ii. • XT. c 1 IX young persons. 
 
 the case oi a " young person than m the case of an adult. 
 
 A girl of seventeen is injured by the bursting of a soda water bottle illustrations. 
 which she is filling. The machine she uses is fitted with a guard, but 
 when it became necessary to take the bottle from the machine the guard 
 drops. Then a mask is provided, which she does not use. She can 
 recover from the employer, as a young person, (c) 
 
 A girl is employed at a machine carding hemp. Her regular duty 
 involves no danger ; but the foreman, seeing that some of the hemp drops, 
 
 (a) 7 & 8 Viot. 0. 15, s. 21. See now 1 Bdw. VII., e. 22; s. 10. 
 
 (6) Britton v. Great Western Cotton Co., L. B. 7 Ex. 130. See per 
 Bowen, Ij.J., Thomas v. Quartermaine, 18 Q. B. D. 685 at 696; 'K.eWy v. 
 Glebe Sugar Eefining Co., 20 B. 833. Post, 181. 
 
 (o) Crocker v. Banks, i. T. L. B. 324. The Sooteh Courts do not seem 
 so liberal in their interpretation of the phrase "young person" as the 
 English Court of Appeal ; Forbes v. Aberdeen Harbour Commissioners, 15 
 R. 323 ; Morris v. Boase Spinning Co., Ltd., 22 R. 336 ; Gibson v. Nimmo, 
 22 E. 491. By sec. 156 of the Factory and Workshop Act, 1901 (1 Bdw. VII., 
 C. 22), " young person " is defined : " a person who has ceased to be a child 
 and is under the age of eighteen years." A child is " a person who is under 
 the age of fourteen years and has not, being of the age of thirteen years, 
 bbtajmed the certificate of proficiency or attendance at school mentiTjned in 
 Part IIL of this Act." These definitions are substantially the same as 
 those in the Factory Act, 1883 (3 & 4 Will. IV., c. 103). By the Shop 
 Hours Act, 1862 (55 & 56 Vict. c. 62), s. 9, a young person means a person 
 under the age of eighteen years. 
 
40 Liability at Common Law 
 
 Chap. II. tells her to replace it between the rollers ia a way he indicates. Two or 
 
 three days afterwards while doing so her fingers are caught in the rollers. 
 
 The employers are liable for the default of their foreman, (o) 
 
 An inexperienced girl is employed in a hazardous manufactory under 
 the control of an overseer. She is injured. The employer is bound to 
 protect her in her work. (J) 
 
 A boy of twelve is employed at a railway book-stall on a platform 
 surrounded by railway lines. He is told his duties by a boy of the same 
 age as himself. The boys are in the habit of crossing the rails instead of 
 going by the footbridge when going about their work. Their practice ia 
 Imown to the man in charge, who does not forbid it. There is a notice 
 at the station warning the public not to cross the rails, but to go by 
 the footbridge. The boy knows the danger, but crosses the rails and is 
 injured. Knowledge by the boy of the danger does not exonerate the 
 employer from responsibility to keep him out of danger as alleged by 
 specific injunctions, (c) 
 
 PEOPOSITION XX 
 
 Youniz person Where E jouiig person is injured through meddling 
 
 ■ outside, his work, the employer is not liable unless know- 
 ledge of the meddling can be brought home to one with 
 authority to intervene and who does not do so. 
 
 (o) Grizzle v. Frost, 8 F. & F. 622. 
 
 (6) O'Bryne v. Burn, 16 Dunlop 1025, as explained by Lord Chelmsford 
 in Bartonshill Coal Co. v. MoGuire, 3 Macq. (H. L. So.) at 311. In the 
 United States it has been held in the Supreme Court in Union Pacific Rd. 
 Co. V. Fort, 17 Wall (U.S.) 553, that a father making a contract of work on 
 behalf of a child is presumed not to consent to the child being exposed to 
 hazardous work. " It is not possible to conceive that the contract would 
 have been made at all if the father had supposed that his son would have 
 been ordered to do so hazardous a thing." If Lord Chelmsford's view of 
 O'Bryne v. Burn is correct, and the principle of the United States case is 
 accepted, Bunker v. Midland Ey. Co., 47 L. T. 476, should have been 
 decided otherwise at common law. The point does not, however, seem to 
 have been suggested; cp. Nash v. Cunard Steamship Co., 7 T. L. B. 597; 
 and Crocker v. Banks, 4 T. L. B. 324. Judge Wheeler in Greenwood 
 V. Greenwood, 24 T. L. R. 24, seems to have held a farm labourer 
 twenty to be a "young and inexperienced person," but qucere. 
 
 (c) Robinson v. W. H. Smith, 17 T. L. E. 423. Post, 92 et seqg. 
 
Duty, to Young Persons 41 
 
 A boy engaged in a lucifer factory meddles with other work. A Chap. II. 
 
 workman of full age standing by does not interfere. The boy injures — ; — 
 himself. The employer is not liable, (a) 
 
 PROPOSITION XXI 
 
 An employer who uses due diligence in choosing work- common em- 
 men is not answerable for an injury received by one 
 through the default of another while both are engaged in 
 the common employment. (6) 
 
 A scaffolding is erected under the superintendence of a builder's fore- illustrations, 
 man. The workmen use an unsound ledger, to which the attention of 
 the foreman, who is not incompetent, is called. A bricklayer is at work 
 on the scaffold when the ledger breaks, and he is thrown to the ground 
 and killed. The employer is not liable for an injury caused by the default 
 of a fellow- workman, (c) 
 
 A girl of fifteen years of age is employed, in a cartridge factory under 
 a forewoman, whose duty is to give her proper instructions and warnings 
 in the dangerous natm'c of her work. The forewoman is competent for 
 her work but is negligent in the performance of it, and the girl is injured 
 thereby. The employer is not liable ; for the duty of instruction may be 
 delegated, and the negligence of a forewoman is a risk which a fellow- 
 servant, even though an infant, undertakes. (<£) 
 
 A boy of fifteen is injured through his arm being caught in a circular 
 saw used at engineering works where he is employed. The employers 
 are found negligent in not sufficiently instructing the boy how to use the 
 machinery. The employer's duty extends no further than to employ a 
 
 (a) Murphy v. Smith (1865), 19 C. B. (N. S.) 361 ; cp. Lynch v. Nurdin, 
 1 Q. B. 29 ; Mangan v. Atterton, L. E. 1 Ex. 239 ; Bailey v. Neal, 5 T. L. B. 
 20 ; and Harrold v. Watney, [1898] 2 Q. B. 320. 
 
 (6) Chapter I., " Common Employment," ante, 13. 
 
 (c) Wigmore v. Jay, 5 Ex. 354. See Wilson v. Merry, L. E. 1 So. App. 
 326, per Lord Chelmsford, at 338. This case would now be within thfe 
 Employers Liability Act, 1880, s. 1, sub-ss. 1 and 2. 
 
 (d) Cribb V. Kynoch, Ltd., [1907] 2 K. B. 548. 
 
42 Liability at Common Law 
 
 Chap. II. competent foreman to give proper instruction, regard being had to the 
 
 boy's age and other circumstances. Where the competent foreman is 
 
 negligent in giving instruction there is no liability on the employer, (a) 
 
 PEOPOSITION XXII 
 
 Co-operation in Where Workmen of different employers are co-operating 
 
 work. , 
 
 in tne same place- and at the same time, and the workman 
 of one is injured by the default of the workman of another 
 employer, such injured workman can recover from the 
 employer of the man causing the injury. 
 
 iiiuBtrationa. BuUder? contract to erect. a block of buildings under a specification 
 
 prepared by the architect of the building owner. Fire-proof floors are to 
 be put down by specialists in that kind of work. The fire-proof 
 specialists are not under the direction or control of the builders. One of 
 the builders' servants is injured by one of the fire-proof specialists' 
 ■workmen's negligence. The builders' workman can recover from the 
 fire-proof specialists. (J) 
 
 A porter in the employment of one railway company is injured by 
 the negligence of the engine-driver of another railway company. Both 
 companies use the station, where the accident happens, in common; and 
 their servants, while in the station, are subject to the rules of the first- 
 mentioned company and to the control of their station-master. The 
 porter can recover from the engine-driver's employers, (c) 
 
 A signalman is one of a joint station staff. One railway company 
 engages him, pays him, and can alone dismiss him. He is bound to 
 perform certain duties for the other. The signalman is killed by the 
 negligence of a driver of the other company. His representatives can 
 recover from that company, (d) 
 
 (a) Young v. Hofimann Manufacturing Co., Ltd., [1907] 2 K. B. 646 ; 
 Burr v- Theg.tre Eoyal, Drury Lane, [1907] 1 Ki B. 544. See the sections In 
 Mr. Labatt's Master and Servant on the " duty of instruction considered 
 with reference to the servant's minority," pp.' 558 et segg. to 578. ^ 
 
 (h) Johnson v. Lindsay, [1891] A. C. 371 : Cameron v. Nystrom, [1893] 
 A. C. 308. AnU, 13. 
 
 (c) Warburton v. G..W. Ey. Co., L. B. 2 Ex. 30. 
 
 id) Swainson v. N. E. By. Co., 3 Ex. D. 341. 
 
Suh-Oontractor 43 
 
 Chap. II. 
 
 PEOPOSITION XXIII 
 
 Where different employers co-operatina;. in a common contractor and 
 
 , -. sub-contractor, 
 
 work stand m the relationship of contractor and sub-con- 
 tractor, the workman of a sub-contractor is not disentitled 
 to recover against the contractor for injury received, in the 
 course of the common work, from a workman of the con- 
 tractor, unless he either expressly or impliedly consented to 
 accept the contractor as his master for the purposes of the 
 common employment ; neither mutatis mutandis is a work- 
 man of the contractor disentitled when injured by a work- 
 man of the sub-contractor. 
 
 Contractors agree with other persons for the execution of portions niustrations. 
 of the work. These persons engage a workman, who is paid hy the 
 contractors, who have a control over and power to dismiss him. He is 
 injured by a workman engaged by the contractors. He is not entitled to 
 bring an action against them, (a) 
 
 Cotton brokers employ a carman to fetch cotton from their warehouse. 
 The carman's carter is receiving bales into his lorry, when through the 
 negligence of the warehouse porter a bale falls on him. The carter can 
 recover from the cotton brokers. (J) 
 
 A shipowner employs a stevedore to unload his vessel. The steve- 
 dore employs his own labourers. Amongst these he engages one of the 
 crew, whom he pays, and over whom he exercises complete control 
 while engaged in unloading. A labourer of the stevedore is injured 
 through the default of the member of the crew. He cannnot recover 
 from the shipowner, (c) 
 
 A railway company employ a contractor to unload coal trucks. The 
 contractor engages his own men, and exercises all control over them. 
 One of the men is injured by the improper shunting of an engine bringing 
 
 {a) Wiggett V. Fox (1856), 11 Ex. 832, as explained by Channell, B., who 
 had been counsel for Fox, in Abraham v. Beynolds, 5 H. & N. 143 at 
 149-150. See Johnson v. Lindsay, [1891] A. C. 371, per Lord Hersohell, 
 C, at 379. 
 
 (6) Abraham v. Reynolds (1860), 5 H. & N. 143. 
 
 Jo) Murray v. Ourrie (1870), L. E. 6 0. P. 24, distinguished in Oldfield 
 V. Furuess, Withy & Co., 9 T. L. B. 515. See also Cunningham v. Grand 
 Trunk Ry. Co., 31 Upp. Can. Q. B. 350. 
 
44 LiaMlity at Common Law 
 
 Chap. II. coal trucks to a siding. The injured man can recover from the railway 
 company, (a) 
 
 Colliery proprietors make a contract for sinking a shaft. They 
 provide a steam engine in charge of an engineer to facilitate the work. 
 The engineer is under the sole orders and control of the contractor, and 
 is paid by the colliery owners. By the engineer's negligence one of the 
 contractor's men is injured. He is not entitled to recover from the 
 colliery proprietors. (6) 
 
 Employers lend a workman to another firm to work a crane. He 
 negligently causes injury to a workman of the other firm. The injured 
 workman cannot recover from the original employers, fc) 
 
 A steamship company contract with a stevedore to discharge a cargo. 
 The company are to provide a winch-driver. They provide one of the 
 crew. He negligently causes injury to one of the stevedore's labourers. 
 The labourer is entitled to sue the steamship company, {d) 
 
 PEOPOSITION XXIV 
 
 Workman no re- Where an employer contracts for the execution of a 
 
 contractor's""' particular work to be carried out under ascertained cir- 
 
 ™ cumstances of risk, a workman of the contractor's cannot 
 
 recover against the employer for injuries, sustained in the 
 
 course of the employment, caused by a contemplated risk. 
 
 Illustrations. '^^^ owner of a brougham horse and harness keeps them at a livery 
 
 stable, the keeper of which was used to lend one of his servants to drive 
 the brougham. On one occasion while driving, the driver through 
 negligence loses control of the horse, which dashes through a shop 
 
 (a) Turner v. G. E. By. Co. (1875), 33 L. T. (N. S.) 431. 
 
 (6) Eourke v. White Moss CoUiery Co. (1876), 1 C. P. D. 556 ; 2 C. P. D. 
 205. 
 
 (c) Donovan v. Laing, Wharton and Down Oonstruotion Syndicate, 
 [1898] 1 Q. B. 629. 
 
 (d) Claridge v. Union Steamship Co., [1894] A. C. 185. The well-known 
 Scotch case of Woodhead v. Gartness Mineral Co., 4 R. 469, is overruled by 
 Johnson v. Lindsay, [1891] A. C. 371. M'Callmn v. North British By. Co., 
 20 B. 385 ; Cairns v. Clyde Navigation Trustees, 35 So. L. E. 808. 
 
Volunteers 45 
 
 window, doing damage. Tiiere is evidence that the driver is the servant Chap. II. 
 of the livery stable keeper in respect of this casualty, (a) 
 
 A carman makes a contract with iron founders to supply a van horse 
 and driver for the 'purpose of delivering goods to their customers. In 
 performance of the contract a van and horse in charge of a man in the 
 carman's employ are sent to the iron founders' premises to take some 
 girders to the premises of one of their customers. The girders are 
 secured by a chain. Some of the customer's men are sent on the arrival 
 of the car at the destination to assist delivery. Before they are ready to 
 set to work the driver negligently unfastens the chain, and one of the 
 customer's men is injured. The control of the driver when delivering the » 
 
 iron founders' goods remains in the carman. (5) 
 
 A railway cdmpany contract for the repair of a tunnel. The repairs 
 are to be executed without interfering with the working of the ordinary 
 service of trains. A workman is injured by a passing train. He has no 
 right of action against the railway company, (c) 
 
 PEOPOSITION XXV 
 
 Where a person is permitted voluntarily to undertake volunteers 
 work in conjunction with the workmen of some other " "" " "^^ 
 person, in which work he has no interest arising out of a 
 
 (a) Jones ^.ScuUard, [1898] 2 Q. B. 565. 
 
 (6) Waldook v. Wiufield, [1901] 2 K. B. 596. The contract may some- 
 times be not to perform any sort of work through the agency of a servant, 
 but merely to procure a duly qualified servant to do the work ; in this case 
 the contractor is not liable for the negligence of the person supplied : Hall 
 V. Lees, [1904] 2 K. B. 602 ; Evans v. Mayor, &o., of Liverpool, [1906] 1 
 K. B. 160. 
 
 (c) Woodley v. Metropolitan District By. Co. (1877), 2 Ex. D. 384. The 
 workman would have a right if the contractor's employer was in default as 
 to his general duty to him — for example, in not disclosing some latent 
 danger : Indermaur v. Dames, L. K. 2 0. P. 311. Cp. M'Inulty v. Primrose, 
 24 R. 442. If the workman uses the head employer's material which is on 
 the ground to ffave himself the trouble of bringing the contractor's material, 
 and the material used proves defective, the employer is not liable, for he 
 has not undertaken to provide any. A window cleaning company sent a 
 window cleaner to clean the roof lights of a foundry under a contract. 
 The window cleaner did not take the necessary appliances with him as he 
 should have done, but found a plank on the roof which he used. The 
 plank was rotten, and be was injured. The window cleaner could not 
 recover in respect of his injuries : Russell v. M'Leish and M'Taggart, 85 
 Sc. L. R. 818. 
 
.46 Liability at Common Law 
 
 Chap. II. duty, by undertaking the work he places himself in the 
 ""^ position of a fellow-servant of those workmen whom he 
 engages in assisting. 
 
 ninstrations. ^ man assists servants of a railway company to turn a truck on a 
 
 turntable. An engine comes into the siding where the work was going 
 on. The man is struck and injured through the want of care of the 
 engine-driver. He is in no better position than a fellow-servant, (o) 
 
 A njan is waiting at a warehouse to load cotton. Workmen of the 
 warehouseman are lowering bales into a cart. The man waiting 
 intervenes to assist the servant in the cart. A bale falls on and injures 
 him. He is in no better position than a fellow-servant. (J) 
 
 PROPOSITION XXVI 
 
 Volunteers with Where a person is permitted voluntarily to undertake 
 work in conjunction with the workmen of some other 
 person, in which work he has an interest arising out of a 
 duty, and undertakes the work with a view to the advance- 
 ment of his interest (but in this case only), the employer 
 of the workmen with whom such person has undertaken 
 the work is responsible for any injury that results from 
 want of care and prudence of his servants in the course 
 of the work, or from the defective condition of the 
 premises on which the work is carried on. 
 
 lUuBtrations. The practice at a railway company's station is to unload coal waggons 
 
 by shunting them and tipping the coal into cells. There is also a practice 
 for the consignees to assist in this. A consignee of a coal waggon which 
 cannot be unloaded because all the cells are occupied, by permission of 
 
 (a) Degg V. Midland By. Co. (1857), 1 H. & N. 773. A passer-by, casually 
 appealed to by a workman for information, does not make himself a 
 volunteer by affording it : Cleveland v. Spier, 16 C. B. (N. S.) 399. 
 
 (6) Potter V. Faulkner (1861), 1 B. & S. 800. See Lunnie v. Glasgow & 
 S. W.By. Co., 8 F. 546 ; Little v. Summerlee Iron and Goal Co., 17 Dunlop 
 810 ; and an Irish case, O'SuUivan v. O'Connor, 22 L. B. Ir. 467. 
 
Volunteers 47 
 
 the station-master goes to his waggon along a flagged path (which is the Chap. II. 
 
 accustomed way), takes some coal from his waggon, and descends on to 
 
 the flagged path. The flag he steps on is worn and gives way. The 
 consignee falls and is injured. The consignee is engaged in a matter of 
 common interest to both parties with the consent of the railway company. 
 He has a right of action against them, (a) 
 
 A consignor sends a heifer by rail. On the arrival at the destination 
 the railway company had not sufBcient porters to shunt the box in which 
 the heifer is conveyed to a siding, where only can delivery be given. The 
 consignor assists in the shunting, and is injured by the negligence of the 
 railway company's servants. He is entitled to recover. (J) 
 
 (a) Holmes v. North Eastern By. Co., (1869) L. E. 4 Ex. 254 : L. E. 
 6 Ex. 123. 
 
 (6) Wright V. L. and N.-W. Ry. Co. (1875), L. E. 10 Q. B. 298 ; 1 
 Q. B. D. 252. Cp. Wyllie v. Caledonian Ey. Co., 9 Maoph. 463, which is a 
 very similar case, though decided on a different principle ; and Little v. 
 NeUson, 17 Dunlop 310, a decision previous to that in Bartonshill Coal Co. 
 V. Raid, 3 Maoq. (H. L. So.) 266. A distinction must be drawn between 
 acts done to assist and acts prompted by some other motive, yet which, 
 when done, do assist. Thus if a runaway horse is stopped by a person 
 jeopardized by its career, such person does not by stopping the horse 
 constitute himself the servant of the owner : Shearman & Redfield, 
 Negligence (4th ed.), § 183. Mr. Labatt collects and summarizes a 
 vast body of authority under the heading: Right of Action where the 
 injured person was not in the service of the defendant for any purpose. 
 Master and Servant, pp. 1852-72. 
 
CHAPTER III 
 
 Negligence 
 
 PKOPOSITION I 
 
 Negligence is absence of care according to the cir- Definition, 
 cumstances. (a) 
 
 A man takes another in his carriage without previously examining lUuBtrations. 
 its holts and fastenings. A hlacksmith examines these every three months. 
 During the journey an accident happens which might have been averted 
 if the owner had examined his carriage before starting. He is not negli- 
 gent as regards his companion in not doing so. (6) 
 
 A railway company make a cursory examination of a truck travelling 
 over their line. A minute examination might discover a crack in an 
 axle, through which an accident subsequently happens. They are under 
 no duty to make the more minute examination, (c) 
 
 A person hires a can-iage, a pair of horses, and a driver from a job- 
 master. While being driven a bolt in the under-part of the can'iage 
 breaks, and an accident results. The carriage is eight or nine years old. 
 About fifteen months before the accident it had been repaired by a 
 competent person. The defect in the bolt, if any, could not be discovered 
 by any ordinary inspection. The duty of the job-master to his customer 
 
 (a) See per WiUes, J., Vaughan v. Taff Vale By. Co., 5 H. & N. 679 at 
 688. " The ideas of negligence and duty are strictly correlative, and 
 there is no such thing as negligence in the abstract. Negligence is simply 
 neglect of some care which we are bound by law to exercise towards 
 Bomebody " : per Bowen, L.J., in Thomas v. Quartermaine, 18 Q. B. D. 685 , 
 
 at 694. Ante, 16. The phrase " wilful negligence " has been frequently 
 observed upon, yet it has been used by great judges, e.g., James, L.J., 
 Eatcllfie V. Barnard, L. B. 6 Oh. 652 at 654; and Lord Selborne, 0., 
 Dixon V. Muckleston, L. B. 8 Ch. 155 at 160. Where used it signifies 
 that the law does not regard wilful acts as such, but in their aspect as , 
 breaches of legal duty — the ignoring a duty, which is negligence in its legal 
 valuation, even though intentional. 
 
 (6) Mofiatt V. Bateman, L. E. 3 P. C. 115. 
 
 (c) Bichardson v. Great Eastern By. Co., 1 C. P. D. 842, 
 
 B.E.L. K 
 
50 iTegligencn 
 
 Chap. III. is to see that the carriage is as fit for the purpose for which it is hired 
 "~~" as care and skill can render it. (a) 
 
 A coach breaks down on its journey by reason of an extraordinary 
 accident. The proprietor is not liable, apart from any contract he may 
 have made with his passengers. (&) 
 
 A master orders his servant to put a lot of rubbish against his neigh- 
 bour's wall, but so as not to touch it. It is possible to execute the order. 
 The servant uses ordinary care and skill in doing the work, yet notwith- 
 standing the rubbish touches the wall. The master is liable for his 
 servant's act. (c) 
 
 A fierce dog is kept in a garden walled all round. A trespasser is 
 bitten by the dog. The master is not liable, (d) 
 
 A man goes on premises to remove his luggage where the owner has 
 a fierce dog. He is bitten. The master is liable, (c) 
 
 (a) Hyman v. Nye, 6 Q. B. D. 685. 
 
 (6) Semble, per Parke, B., Hawtayne v. Bourne, 7 M. & W. 595 at 
 598 and 599. See Gwilliam v. Twist, [1895] 2 Q. B. Si, per Lord Bsher, 
 M.R., at 87. " Ad ea gucE freqtientius accidunt leges adaptantur," i 
 H. L. 0. at 405 ; 9 H. L. C. at 52. With this compare D. 50, 17, 64 : " Ea 
 qiUB raro accidunt, non temere in agendis negotiis computantur." Beard 
 V. London General Omnibus Co., [1900] 2 Q. B. 530. 
 
 (c) Gregory v. Piper, 9 B. & 0. 591. 
 
 {d) Saroh v. Blackburn, 4 0. & P. 297 ; per Tindal, O.J. : " Undoubtedly 
 a man has a right to keep a fierce dog for the protection of his projierty." 
 In Baker v. Suell, [1908] 2 K. B. 352, a barmaid sued her employer 
 for injuries from the bite of a dog kept by him, and known both to 
 him and the barmaid to be " a savage one," which was set on her by the 
 barman. Ohannell and Sutton, JJ., were of opinion that the employer 
 Was liable. The action, however, was at common law, and the barmaid 
 and barman were fellow-servants, and a taking of the risks of the acts of 
 one another would be a term of their respective contracts. Ante, 13. I 
 venture the suggestion, though the point cannot here be argued at length, 
 that the liability for keeping of a " savage dog " is not as Ohannell, J., says 
 it is — " in the same position " as the liability attaching to keeping a " wild 
 animal" of the tiger class. True, in declaring on an injury from either, 
 the scienter is not necessary. In the case of a fierce dog, however, which 
 " undoubtedly a man has a right to keep," the primd facie liability may 
 be rebutted by showing absence of negligence. In the other case, where 
 not protection of property or other such motive but whim only is the 
 reason for keeping the animal, the liability may be absolute, as Bram- 
 well, B., suggests in Nichols v. Marsland, L. E. 10 Ex. 255. A possible 
 dif&oulty about the causa causans and the causa proxima of the injury 
 is dealt with by Lord Lindley in Penton v. Thorley, [1903] A. 0. at the 
 bottom of p. 454. On appeal, Oozens-Hardy, M.B., and Parwell, L.J., held 
 that " it was a wrongful act to keep an animal which was known to be 
 dangerous," i.e. a dog that has snapped at any one : 24 T. L. B. 811. Sir 
 ■ B. Ooke said that the common law is the perfection of reason. Can this 
 then be the common law ? or is the dictum at fault ? Kennedy, L. J., did not 
 agree with the majority. He would allow the dog's owner to show, as in 
 Weaver v. Ward, Hob. 184, that the result was Utterly without his fault ; 
 that the liability was prima facie. 
 
 (e) Stiles v. Cardiff Steam Navigation Co., 33 L. J. Q. B. 310. 
 
Grounds of Liability 51 
 
 A man keeps a monkey. Without any special default of the owner Chap. Illt 
 alleged it bites a woman. The owner is liable, (a) 
 
 PEOPOSITION II 
 
 Legal liability postulates some responsible person to intelligent 
 
 ■ agent, 
 
 whom it may attach, as distinguished from an agency. 
 
 A practical joker throws a lighted squib into a crowd. A bystander, to lUuBtrations. 
 protect himself, instinctively and without premeditation throws the squib 
 away in the direction of another person. He acts in a similar manner, 
 and others likewise. Ultimately the squib bursting, puts out a person's 
 eye. That person has a remedy against the first person setting the 
 injurious agency in motion ; but the action of the intermediate persons 
 if merely instinctive does not affect them with any liability, (i) 
 
 A house is burnt by lightning or overturned by the wind. There is 
 no liability, (c) 
 
 Despite all precautions known to prudent and experienced carriers, a 
 storm destroys goods entrusted to a carrier for transport. He is not liable 
 for the loss, {d) 
 
 A man rides a horse at a slow pace in Finsbury Circus to try it.' The 
 horse is restless. The man used every precaution against accident. 
 The horse swerves, lashes out, and injures a man. The rider is not 
 liable, (e) 
 
 A horse, drawing a brougham, suddenly and without any cause that 
 is discovered to account for the . conduct, bolts and, despite every 
 reasonable effort of the coachman to control him, swerves on to the foot- 
 way and injures a passer-by. Twenty yards aftar the bolt the horse 
 casts a shoe. The coachman does not call for assistance. There is no 
 evidence of negligence against the owner of the horse. (/) 
 
 (a) May v. Burdett, 9 Q. B. 101. 
 
 (6) Soott V. Shepherd, 1 Sm. L. 0. (11th ed.) 454. The condition of 
 the validity of this view of the decision (which primarily turned on the 
 pleading distinction between trespass and case) is that in none of the 
 stages of the transit of the squib is an originating or diverting power 
 exercised. 
 
 (c) Dyer 33, Case (10). 
 
 (d) Nugent v. Smith, 1 C. P. D. 423. 
 
 (e) Hammaok v. White (1862), 11 0. B. (N. S.) 588. 
 
 (/) Manzoni v. Douglas, 6 Q. B. D. 145. As to onus, see post, 72, 
 
Chap. III. 
 
 Absence of 
 responsibility. 
 
 lUustratioQ. 
 
 52 Negligence 
 
 PROPOSITION III 
 
 Legal liability is not imputable to a person wholly 
 unable to distinguish the character of his acts, (a) 
 
 One cMd throws a stone at another child which puts out her eye. 
 No liability arises from the act, since there is no responsibility, (h) 
 
 doDStraibti 
 
 lllustTations. 
 
 PROPOSITION IV 
 
 Legal liability is not imputable to a person who acts 
 under compulsion, or under the overmastering influence of 
 terror. 
 
 " If a man by force take my hand and strike you, so that it appears to 
 have been inevitable by me, I shall not be liable." (c) 
 
 A coach proprietor neglects to provide a proper coupling rein. The 
 one he does supply breaks. A passenger is thereby placed in a perilous 
 position. In his agitation he leaps off the coach and breaks his leg. His 
 act is instinctive and not voluntary. The coach proprietor's default is 
 the legal cause of the accident, (rf) 
 
 PROPOSITION V 
 
 Uninterrupted In determining on whom responsibility for injuries 
 
 conB™Mnces. caused by negligence should fall, the last intelligent 
 
 (a) Wharton, Negligence (2nd ed.), § 88. Query : Could a maniac's 
 estate be rendered liable for the death of one killed by the maniac, under 
 Lord Campbell's Act, 9 & 10 Vict. i;. 93, a. 1, the words of which are : 
 "Whensoever the death of a person shall be caused by a wrongful act, 
 neglect or default " ? Again, where negligence or default is necessary to 
 constitute a cause of action, can one who, by hypothesis, cannot dis- 
 criminate his actions be accountable for them ? This is discussed, Beven, 
 Negligence (3rd ed.), 47, 553-570. 
 
 (6) Harvey v. Duulop, Hill & Denio, Supp. Vol. by Lalor, 193, per 
 Nelson, C.J., at 194. 
 
 (c) Weaver 13. Ward, Hob, 134. 
 
 (d) Jones v. Boyoe, 1 Starkie (N. P.) 493, approved Lindley L.J., in 
 " The Citv of Lincoln," 15 V. D. 15 at 18. See too Adams v. Lanes. & Y. Rv. 
 Co., L. 11. 4 C. P. at 743. I'ost, 91. 
 
Legal Sequence 53 
 
 ageut {a) must be ascertained ; and if, between the agent Chap. III. 
 setting the mischief at work and the actual mischief done, ' 
 
 there intervenes an intelligent agent (6), not within the 
 exception of Proposition IV., who should have averted (c) 
 the mischief, the original wrongdoer ceases to be liable, 
 Where there is no fault there is no responsibility. 
 
 Sugar is delivered to a railway company to carry. They pack it in niustrations, 
 proximity to some weed-killer they are also carrying. They do not 
 know anything as to the properties of the weed-killer. When the 
 sugar is delivered it is wet. This is a not unusual incident to the 
 carriage of sugar, and not necessarily injurious to it. The grocer to 
 whom the sugar is delivered sells some to a person, who eats of it and 
 is killed. The weed-killer is an arsenical preparation the exudation 
 from which poisons the sugar. Neither the grocer nor the carriers are 
 liable, (<?) 
 
 A dock-owner supplies and puts up staging as incident to the use of 
 his dock. A painter contracts with a shipowner using the dock to paint 
 his ship in dock. The painter employs workmen, one of whom is 
 injured through the breaking of a" rope supporting the staging. He can 
 recover from the dock-owner, (e) 
 
 (a) i.e. a person legally responsible for his acts. Post, 65. 
 
 (6) The constituents of an " intervening cause " are considered in the 
 Canadian case of McKelvin v. " The City of London," 22 Ont. B. 70, per 
 Paloonbridge, J., at 77, Cp. Badisobe Anilin uud Soda Fabrik v. Basle 
 Chemical Works, Bindsobedler, [1898] A. 0. 200, per Lord Halsbury, C, 
 at 204, and per Lord HersoheU at 209. 
 
 (c) The test is not who migM have averted, but who had a duty to avert 
 the mischief; op. Loader v. London and India Docks Joint Committee, 
 8T. L. E.5. 
 
 {d) Cramb v. Caledonian Ky. Co., 19 E. 1054. 
 
 (e) Heaven v. Pender, 11 Q. B. D. 503, distinguished in Caledonian 
 Eailway v. MulhoUand, [1898] A. 0. 216 ; op. Mowbray v. Merryweatber, 
 [1895] 1 Q. B. 857, [1895] 2 Q. B. 640 ; Edwards v. Hutobeon, 16 E. 
 694 ; Cameron v. Walker, 35 So. L. E. 347. If A supplies an article to B 
 for the use of 0, A is liable to C on the general duty. B may be liable also 
 to on his contract ; but if A supplies something to B on which B has to 
 do work before it is used by 0, A is not liable to B in respect of any par- 
 ticular as to which B has to do work or to exercise bis judgment. Cp, 
 Marney v. Scott, [1899] 1 Q. B. 986. I have been informed that on the 
 shipowner paying the costs and damages, an appeal in this case was 
 abandoned. Bigbam, J.'s rule (at p.. 993), that some slight attention ought 
 to be devoted to the condition of the tackle and appliances which the 
 stevedore's labourers are to use in their " work " is not very illuminating, 
 especially as he negatives any duty " to have the vessel surveyed from 
 
54 Negligence 
 
 Chap. Ill, A physioian writes a prescription for his patient. Tlie charge for 
 
 '""' making up the prescription is included in the fee which is paid by the 
 
 patient to the physician. In making up the prescription the druggist's 
 
 clerk compounds a wrong and hurtful ingredient. The patient is injured. 
 
 The druggist is liable for the injury, and not the physician, [a) 
 
 A man, his wife being ill, purchases what is believed to be the pre- 
 scribed medicine from a druggist. The druggist had procured the jar 
 from which the medicine is taken from a dealer, who had procured it 
 from the manufacturer. The jar is labelled with the name of the manu- 
 facturer, and the descriptionof the preparation intended to be put therein. 
 The jar in fact contains deleterious matter which injures the wife. There 
 is no duty on the druggist or the dealer to examine and test the medicine 
 so supplied and labelled; therefore the manufacturer is liable. (6) 
 
 stem to stern." Can any duty be formulated, and what? _ Bigham, J., 
 seems to reach his conclusion by assuniing that the charterer s duty to the 
 stevedore's men is the same as the stevedore's duty to them. But the 
 charterer's relation to the stevedore is contractual only. The shipowner's 
 liability to the workmen comes under the principle enunciated by Cotton 
 and Bowen, L.JJ., in Heaven v. Pender, 11 Q. B. D. 503 at p. 515; there 
 was " an obligation to take reasonable care that at the time the appliances 
 provided for immediate use were provided they were in a fit state to be 
 used— that is, in such a state as not to expose those who might use them 
 to any danger or risk not necessarily incident to the service in which they 
 were employed." In Scott v. Foley, Aikman & Co., 5 Com. Cas. 53, the 
 defendant in Marney v. Soott recovered against the shipowners on their 
 warranty. Generally, it may be said that the liability of the possessor of a 
 chattel to persons permitted or invited to use it does not difier from that 
 of the occupier of dangerous premises to persons entering on them : Smith 
 V. Steele, L. E,. 10 Q. B. 125. Hartley v. Mayor, &o., of Bochdale, [1908] 
 2 K. B. 594, does not seem to be a case under the proposition enunciated 
 at all. It was a case of the violation of a statutory duty, which cannot 
 be delegated. Proposition X, post, 61. 
 
 (a) Stretton v. Holmes, 19 Ont. R. 286. If the druggist is known to be 
 an incompetent person by the physioian, the physioian would be liable. 
 
 (b) Thomas -u. Winchester, 8 N. Y. 397, Bigelow, Leading .Cases on 
 Torts, 620, where the principle under discussion is examined. In Engel- 
 
 Engelhart^^ hart v. Parrant & Co., and T. J. Lipton, [1897] 1 Q. B. 2iO at 246, 247, 
 Bigby, L.dT., said that the proposition is not law that " wherever between 
 the negligence of a servant and the incident the act of some third person 
 intervenes, and is the proximate cause of the accident, the employer is not 
 liable." As stated, without limitation the proposition is clearly not law. 
 If the servant of a manufacturer of patent lozenges were to pack up some 
 actively poisonous compound, and the Government stamp were alHxed to 
 the packet, and the lozenges passed through the hands of half-a-dozen 
 retail dealers, the civil liability of the master would assuredly be no whit 
 less than had he made the preparation with his own hands and distributed 
 it. Nevertheless, there would be the intervention of a third person, whose 
 sale of the poisonous compoimd to the purchaser would be the proximate 
 cause of the injury. But if after the poisonous compound had left the 
 manufacturer's it comes into the hands of some one whose duty is to test 
 it, and who does not do so, the employer is as plainly not liable as in the 
 
 Farrant & Co. 
 
Legal Sequence ' 55 
 
 A person insures himself under a polioy in which it is agreed to pay Chap. III. 
 him a certain sum if he should be injured by accidental -violence and 
 
 former case he is liable. If he is, he is liable for what he has not done ; 
 for he is entitled to assume that those who aot subsequently to him or 
 their servants will do their legal duty, and not be in default. The case 
 was not appealed because Lipton had an indemnity from Farrant. 
 
 In cases lilre Illidge v. Goodwin, 5 G. & P. 190, and Engelhart v. 
 Warrant & Oo. supra (op. Whatman v. Pearson, L. E. 9 0. P. 422), to leave 
 a oart unattended is, in the oiroumstanoes, a wrongful aot. The inter- 
 vention of the third party is a reasonable and probable consequence flowing 
 from the Wrongful aot, and not a diversion of responsibility for it. In 
 Bngelhart's case, if Tucker was Lipton's servant, then his aot bound 
 Lipton. If he was not, then Mears was negligent in leaving the cart 
 unattended, and Tucker's interference was, in the opinion of the Court of 
 Appeal, a natural and probable consequence of his negligence, for which 
 Lipton was responsible. This explains one way' of looking at Burrows v. 
 March Gas and Coke Co., L. B. 5 Ex. 67 ; 7 Ex. 96, and Paterson v. Mayor 
 of Blackburn, 9 T. L. K. 55. A man has a right to be as negligent as he likes, 
 with the proviso only that his negligence does not harm any one else. He 
 has also a right to aot on the assumption of the ordinary course of things 
 flowing on in their order. If his negligence in concert with the natural 
 sequence of events produces injury to another, he is not the less liable 
 because the proximate and operative cause of the mischief is a foolish 
 and thoughtless man, than if it were a savage and unrestrained animal. 
 IJ his negligence only brings injury through the intervention of an aot not 
 natural and probable, he is not responsible : Sharp v. PoweU, L. K. 7 0. P. 
 253. But if a wrongful act is followed by a not probable consequence the 
 wrongdoer is answerable : " An injury to the head has been known to set up 
 septic pneumonia, and many years ago I remember when that incident had 
 in fact occurred, it was sought to excuse the person who inflicted the blow 
 on the head from the eonsequences of his crime because his victim had died 
 of pneumonia, and not as it was contended by the blow on the head " : per 
 Lord Halsbury, C, Brintons Ltd. v. Turvey, [1905] A. C. at 233. Neither 
 is a person liable for negligence the consequences of which it is the duty 
 of some intervening person to divert, before they can work injuriously. 
 Pp. Dunham v. Clare, [1902] 2 K. B. 292, per Collins, M.E., at p. 296. 
 
 Two of the judges in Engelhart v. Parrant unfavourably criticised Mann v. WarJ. 
 Mann v. Ward, 8 T. L. E. 699. The facts of that case as reported are as 
 follows ; A man crossing a road was knocked down by a cab driven at a 
 furious pace. The cab-driver was inside drunk. The man driving at the 
 time of the accident was unlicensed and drunk. The injured man sued 
 the oab-proprietor. He was nonsuited, and the Court of Appeal sustained 
 the nonsuit. To render the cab-proprietor liable, negligence must be 
 shown on his part. To make negligence there must be a duty to the 
 party injured, and a breach of the duty. The duty to the injured rnan in 
 the present case was assuredly not a duty to see that the cab, in no 
 circumstances, and in no one's hands to whom it might come, should not 
 do bim an injury. There was a duty on the cab-proprietor, neitherby 
 himself nor by his servant in charge of the cab, to do any aot causing 
 injury to any member of the public. If the drunken cabman had been 
 driving the cab at the time of the. accident, clearly the master would have 
 been hable. But neither master nor man did anything.^ The cab was 
 practically unattended, and though probably in that condition afiecting its 
 master with liabilities under the Cab Acts, and in circumstances like those 
 in Illidge v. Goodwin, still not like a savage beast broke loose. Admitting 
 that the aot of the master in committing his cab to the charge of a drunken 
 
56 
 
 Negligence 
 
 Chap. III. should die within three months of the occurrence if the injuiy should be 
 the " direct and sole cause " of his death. The policy is subject to the 
 condition that it should not applj' to " death . . . caused by or arising 
 wholly or in part from " any " intervening cause." The insured accidentally 
 inflicted a wound on his leg with his thumb nail. The leg becomes 
 inflamed, erysipelas sets in, septicsemia follows, and death ensues through 
 septic pneumonia. The erysipelas septicaemia and septic pneumonia are 
 not " intervening cause." (o) 
 
 PROPOSITION VI 
 
 Negligence There can be no iies;ligence in law unless there is 
 
 pre-suppoBes o o 
 
 •""'y- shown to exist some legal duty (&) owing by a responsible 
 
 person, (e) who is the cause of the act complained of, to the 
 person complaining of the act. 
 
 iiuistrationa. A bill for £500 is presented for acceptance. The stamp on the paper 
 
 is of much larger amount than is necessary. On the bill as drawn at the 
 time of presentation spaces are left in which figures to a larger amount 
 than the £500 for which the bill is drawn might be inserted. The 
 acceptor, without taking any precaution against the amount inserted in 
 the bill being increased, writes his acceptance on the bill as presented to 
 him. The drawer fraudulently fills in the spaces and turns the bill into a 
 bill for £3,500. This bill he negotiates and obtains money for. There is 
 
 cabman would have rendered the master liable if injury had resulted ; in 
 the case in question none in fact did. The eab was absolutely harmless. 
 The drunken man who seized upon the cab set at work a new train of con- 
 sequences, clearly out of the ordinary and natural course, and which could 
 not be anticipated. Thus the cab-proprietor had violated no duty to the 
 injured man. The violation of duty to him was by an act not a natural 
 and probable consequence of anything the cab-proprietor did. If the cases 
 are inconsistent, Mann v. Ward, both as to the decision of a much stronger 
 Court and also as more in accord with the other cases, seems the preferable 
 decision to Engelhart v. Parrant. Besides which, in Engelhart v. Farrant, 
 according to Kigby, L.J., in that case (at p. 247) : " We sitting here and 
 dealing with the finding of the County Court judge as to matters of 
 fact, ought to exercise the function of a jury," so that no binding rule of 
 law was laid down. Cp. Gwilliam v. Twist, [1895] 2 Q. B. 84. 
 
 (a) Mardorf v. Accident Insurance Co., [1903] 1 K. B. 584. 
 
 (h) Ante, 15. 
 
 (c) See Proposition Y., ante, 52. 
 
DiUy to use Care 57 
 
 no duty on the acceptor towards any person who may take the bill for Chap. III. 
 value to use any degree of care in signing or issuing it. (a) ~ 
 
 A man takes his stand in the midst of excavating operations to watch 
 the men working. He has no concern with the working, and no business 
 there. Through the breaking of a chain while he is looking on he is 
 injured. There is no duty on the excavators to modify their method of 
 working through his presence. He takes the risks incident to the position 
 in which he voluntarily places himself, (b) 
 
 A private path by a canal is allowed to get into a bad condition. 
 People walking along it are not interfered with by the owners of the path. 
 Through the bad condition of the path a passer along it is injured. There 
 is no negligence in law ; because tlie owners are under no legal duty to 
 persons merely permitted to use the path, (c) 
 
 PEOPOSITION VII . 
 
 A duty to take care arises where the person or property Duty to take 
 of one stands in such a relation to some other person 
 or to property that, unless care is exercised, according to 
 the natural and probable course of events, damage may 
 result. 
 
 A man is driving along a road in a town. He has a duty to take care illustrations, 
 to drive so as not to injure any one who may probably be using the road. 
 
 A man is driving on Salisbury Plain [or any deserted place where in 
 
 (a) Scholfieia v. Earl of Londesborough, [1896] A. G. 514. An even 
 stronger case is Patent Safety Gun Cotton Co. v. Wilson, 49 L. 3. Q. B. 
 713. Beven, Negligence (3rd ed.), 1317. 
 
 (6) Batchelor v. Fortescue, 11 Q. B. D. 474. Care must be taken not 
 to extend this decision beyond its proper terms. Had the defendant known 
 that the man was in a dangerous position he should have warned him. 
 The principle of the case may be stated to be that " no duty was oast upon 
 the defendant to take care that the deceased should not go to a dangerous 
 place." If he were there to the knowledge of the defendant's servants, 
 there would be a duty not recklessly to injure him ; but not a duty to alter 
 their mode of working, unless they had reasonable cause to regard it as 
 dangerous. Cp. Le Lievre v. Gould, [1893] 1 Q. B. 491 at 497 ; also per 
 Bramwell, B., Degg v. Midland By. Co., 1 H. & N. 773 at 777. 
 
 (c) Gautret v. Egerton, L. B. 2 0. P. 371 ; op. Barrett v. Midland By. 
 Co., 1 P. & F. 361. 
 
58 Negligence 
 
 ■Chap. III. ordinary course he would meet or could injure no one]. He may drive 
 — - as fast and as recklessly as he pleases, (as) 
 
 A man draws a certificate carelessly. In the absence of contract he 
 is not responsible in law for what he writes, (ft) 
 
 A labourer in the employment of stevedores brings an action under 
 the Employers Liability Act, 1880, on account of personal injuries sus- 
 tained by him through the fall of a stanchion which is unfastened and 
 unsupported on the ship on which he is going to work. There is no duty 
 on stevedores to inspect the ship to see to its safety for their servants, (c) 
 
 The Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60, s. 458), gives 
 statutory protection to seamen by providing that as between a shipowner 
 and the master, seamen, and apprentices on board his ship, an obligation 
 is implied that the owner, the master, and every agent charged with the 
 loading or preparing for or sending the ship to sea, shall use all reasonable 
 means to insure the sea worthiness (d) of the ship for the voyage at the 
 time when the voyage commences, and to keep her in a seaworthy 
 condition for the voyage during the voyage. 
 
 PKOPOSITION VIII 
 
 Unusual or The duty to use care increases in proportion to the 
 
 dangerous iorceB.^^^g^^ involTcd in dealing with, any agency requiring 
 
 more than the normal amount of care and skill in the 
 
 handling. 
 
 (a) Le Lievre v. Gould, [1893] 1 Q. B. 491, per Lord Esher, M.E., at 
 497. If the man driving on Salisbury Plain sees a party ahead of hira he 
 is as muoh bound to care to avoid injuring them as if they were in Cheap- 
 side ; but he is not bound so strictly to anticipate that a party will be 
 there, and tUl the circumstances are such as should raise the anticipation, 
 no duty to take care arises. Lloyd i). Ogleby, 5 0. B., N. S. 667 : Wharton, 
 Negligence (2nd ed.), § 882. See Moore v. Ransome's Dock Committee, 
 14 T. L. K. 539. As reported there is no indication of what the functions 
 of the defendents were or their duty to the deceased. 
 
 (6) Le Lievre v. Gould, [1893] 1 Q. B. 491, per Bowen, L. J., at 502. 
 
 (c) M'Laohlan v. ss. " Peveril" Co., Ltd., 23 B. 753. This decision 
 does not afieot the question of the liability of shipowners or other persons 
 responsible for the condition of the ship. Cp. Heaven v. Pender, 11 Q. B. 
 D. 503. See further. Carter v. Clarke, 14 T. L. R. 172. Ante, 26 (a), 53 
 11. (e), and jposi, 184. 
 
 (d) Beven, Negligence (3rd ed.), 1025-1034 ; Stroud, Judicial Dictionary 
 ■(2nd ed.), sub wee. 
 
Duty to use Care 59 
 
 " The law of England in its eare for human life requires consummate Chap. III. 
 caution in the person who deals with dangerous weapons." (a) 
 
 llIUBtrations, 
 
 " I am by no means sure that if a man kept a tiger, and lightning 
 broke his chain and he got loose and did mischief, that the man who 
 kept him would not be liable." (5) 
 
 A gas fitter is employed to repair a gas meter. He removes it from 
 the premises, and in lieu makes a temporary connection between the 
 inlet pipe and the house pipe. The householder's servant in the ordinary 
 course of his duty goes to the cellar from which the meter had been 
 removed carrying a light. There is an explosion, due to an escape 
 through the insufficiency of the temporary connection. The servant is 
 injured. The gas fitter is liable. Having to deal with a highly dangerous 
 thing, he is bound to use the greatest care, (c) 
 
 Exhibitors let off fireworks at the Crystal Palace. A person entering 
 the Palace grounds is struck on the leg by a firework and injured. The 
 mere occurrence of the accident justifies leaving the case to the jury, (d) 
 
 A boy finds his father's gnn in a field and, taking it up, not knowing 
 that it is loaded, points it at the plaintiff, who is injured by the dis- 
 charge. The plaintiff is entitled to recover damages against the boy's 
 father, (e) 
 
 PEOPOSITION IX 
 Legal duty is fixed by reference to the rule of care Notion of duty 
 
 ■' ■' . . progressive. 
 
 for the time being ordinarily obtaining in the occupation, 
 class, and circumstances about which the inquiry is con- 
 cerned, and is dependent on the state of knowledge and 
 practice of the class of those whose conduct is being tested, 
 
 (a) Per Erie, O.J., Potter v. Faulkner, 1 B. & S. 800 at 805. Dixon v. 
 Bell, 5 M. & S. 198. See also Goldstone v. Giffard, Times newspaper, 
 19th Jaoiuary, 1899. ■ 
 
 (6) Per Bramwell, B., Nichols v. Marsland, L. E. 10 Ex. 255 at 260. 
 
 (c) Parry v. Smith, 4 0. P. D. 325. 
 
 (d) Whitby u. Brook, 4 T. L. R. 241. 
 
 (e) Sullivan v. Creed, [1904] 2 I. R. 317; distinguished in Cook i). 
 Midland Great Western Ry. of Ireland, [1908] 2 I. E. 242. , 
 
60 Negligeme 
 
 Chap. III. and progresses with the growth of science and the increase 
 of experience, (a) 
 
 lUustretionB. A passenger on a railway jilatform on Christmas Day is injured by 
 
 being driven by a crowd against a portable weighing machine, the foot 
 of which projects six inches or thereabouts above the level of the 
 platform ; the machine is unfeneed, and had stood in the same position 
 for some years. The accident could not reasonably have been foreseen. 
 There is no liability. (J) 
 
 A particular kind of brattice cloth is kept without accident for a long 
 time in proximity to an engine which emits sparks. An accident at 
 length happens through the cloth catching fire. It has long been known 
 to be inflammable. There is a duty to guard against the probability 
 of fire, (c) 
 
 A pointsman who has but an instant to decide what to do with a run- 
 away engine on the main line (the driver having been seized with a fit), 
 without negligence turns it into a siding on which there is a train at rest, 
 rather than allow it to meet an advancing express train. A person in 
 the train at rest is injured, and sues the railway company for negligence : 
 first, for not having two men in charge of the engine ; and secondly, for 
 having the points of the sidings so arranged that the enguie must neces- 
 sarily, in case of the driver being incapacitated, pass on to the main line. 
 The operation of coaling an engine (in which the driver was engaged at 
 the time of his seizure) is one usually conducted by one man with safety. 
 It is therefore not negligence to make preparations for its performance in 
 the accustomed way. As to the second point, it is not negligence not 
 to foresee that a plan safely adopted for many years may result in 
 accident, {d) 
 
 Premises are flooded with water which is ultimately discovered to 
 have escaped from a fracture in a water main. The pipes are cast iron, 
 
 (a) See Hanson v. Lanes, and Y. Ey. Co., 20 W. R. 297 ; Wisely «. 
 Aberdeen Harbour Oommiasioners,. 14 B. 445 ; and Williams, J., summing 
 up in Premantle v. L. & N.-W. By. Co., 2 F. & F. 337 to 340. A man is 
 negligent not merely in falling short of doing Ms duty in what lie knows 
 but in what he ought to know. The test of this fact is the knowledge 
 reasonably to be anticipated from his contemporaries of his class. 
 
 (6) Cornman v. Eastern Counties By. Co., 4 H. & N. 781 ; see Black- 
 man v. L., B. and S. 0. By. Co., 17 W. E. 769 ; also n. (6), ante, 54. 
 
 (c) Thomas v,. Great Western Colliery Co., 10 T. L. R. 244. The 
 fact of previous accidents at the same place and in similar circumstances 
 may be given in evidence as tending to show that there had been negligence 
 in providing means of prevention. Cp. Brown v. Eastern and Midlands 
 By. Co., 22 Q. B. D. 391, 
 
 (i) Hart v. Lanes. & Y. By. Co., 21 L. T. (N. S.) 261. Ante,^ 19. 
 
Standard 'of Care 61 
 
 which is the material used by all other water companies. The sole Chap. III. 
 
 suggestion of negligence is that cast iron is an improper material for 
 
 water pipes. Use of the material in general use discharges the water 
 company's duty. They are not bound to invent something more 
 efficient, (a) 
 
 PROPOSITION X 
 
 Where a duty is imposed by statute, such duty is fXtor'''duty 
 absolute, and a breach of it is actionable, even although «<="<""'"«• 
 the person, bound to the performance of it by the statute, is 
 wholly without fault. 
 
 A district council having a statutory duty to construct a sewer, lU«strations. 
 employ a contractor for the work. In carrying out the contract a gas 
 main is broken, gas escapes into a house and causes an explosion, 
 injuring the occupants and the furniture. The district council is liable, 
 for a statutory duty cannot be delegated, (h) 
 
 A district council on default of the owner to make up a road under 
 sec. 150 of the Public Health Act, 1875 (38 & 39 Vict. c. 55), make 
 a contract to do the work. The contractor leaves on the roads a heap of 
 soil unlighted and unprotected. A person walking along the road after 
 dark falls over this heap and is injured. The work contracted to be 
 done is likely to cause danger to the public unless precautions are taken. 
 There is an obligation on the district council who order the work to see 
 that the precautions are taken which render its execution safe, on the 
 double ground that the work is statutory and that it is dangerous, (c) 
 
 The danger to he provided against where there is no statutory duty 
 seems to be a " danger to the public." The rule of law here considered 
 
 (a) Snook v. Grand Junction Waterworks Co., 2 T. L. E. 308, per 
 Huddleston, B. : " They (the Water Company) are only bound to use what 
 (description of pipes) are In general use." This is not absolutely accurate. 
 If water companies were either designedly or by a coincidence to use water 
 pipes in fact inefficient for the ordinary purposes of water pipes, they 
 would not by their unanimity discharge their duty. On the other hand, 
 invariable use by all companies raises a very strong presumption that the 
 pipe so used is reasonably fit for use; still the presumption may be 
 rebutted. 
 
 (6) Hardaker v. Idle District Council, [1896] 1 Q. B. 835. 
 
 (c) Penny v. Wimbledon Urban Council, [1899] 2 Q. B. 72 ; Holliday v. 
 National Tclophono Co. [1899], 2 Q. B. 393. 
 
62 Ne^igence 
 
 Chap. III. has been generalized : the occupier of property cannot escape liability 
 by employing another to work on his property— 
 
 (1) Where this work to be done is illegal. 
 
 (2) Where the very object of it is to do something injurious to the 
 
 rights of a third person. 
 
 (3) Where there is a statutory duty. 
 
 (4) Where the work is dangerous. 
 
 PROPOSITION XI 
 
 Negligence in the performance of a statutory duty to 
 provide safeguards is evidence of negligence, in the same 
 matter and apart from the statute, at common law. 
 
 UluBtration. Railway legislation (a) provides for precautions in running certain 
 
 trains. An accident happens to a train, within the meaning of the 
 legislation, where the precautions had not been taken ; if they had been 
 the accident might possibly have been prevented. This is evidence of a 
 breach of common law duty. (6) 
 
 PROPOSITION XII 
 
 standard of The Tule of duty which one man must observe in his 
 
 du^yatcommoD JQ^gj-gQu^gg ^jjj^ others requires the exercise of that amount 
 of care and knowledge which an ordinary intelligent person 
 ordinarily exerts in similar circumstances. If he undertakes 
 duties requiring a special skill he is bound to the exercise 
 of that amount of care and skill in his undertaking as an 
 expert in the same sort of business ordinarily exerts in 
 similar circumstances. Whether a legal duty can exist in 
 
 (a) The Eegulation of Railways Act, 1868 (31 & 32 Vict. o. 119), s. 22. 
 
 (6) Blamires v. LancS. & Y. Ey. Co., L. K. 8 Ex. 283, per Brett J. 
 at. 288; Groves v. Lord Wimhorne, [1898] 2 Q. B. 402; Hardaker v Icu'e 
 District Council, [1896] 1 Q. B. 335. Ante, 25. 
 
Co-operating Causes 63 
 
 the circumstances is matter of law for the direction of Chap. III. 
 the judge ; whether in the particular case it does is for the 
 jury, (a) 
 
 A medical man calls on a former patient in a friendly manner. He illustrations, 
 has reason to believe that a member of the family is insane. He com- 
 municates with the authorities, and the person so alleged to be insane is 
 confined in consequence. The person is not insane, and brings an action. 
 The standard of duty required is that of an ordinary intelligent person 
 onlj', as the visit was not a professional one. (J) 
 
 A surgeon is employed to cure the leg of a patient. The leg had 
 been broken and set and the callus of the fracture formed. Hb disunites 
 the callus, and fixes on the leg a heavy steel instrument with teeth 
 to stretch or lengthep. the leg. The treatment is injurious and 
 professionally wrong. The surgeon is liable for his bi'each of duty, (o) 
 
 A solicitor is ignorant of the rules of practice of the Court, and 
 neglects to attend with the witnesses when his case comes on for trial. He 
 is guilty of breach of duty, {d) 
 
 PEOPOSITION XIII 
 Where iniury is caused to a third person by reason of co-operating 
 
 ■' •' . , negligence. 
 
 the negligent act of an intelligent agent co-operating with 
 
 (a) This direction he gives by ruling whether there ia evidence of 
 negligence to submit to the jury ; do the facts proved raise a legal duty F 
 Per Lord Oaims, Metropolitan By. Co. v. Jackson, 3 App. Cas. at 197 ; 
 Holmes, The Common Law, 120. The case of Bond v. Wilson, 24 T. L. E. 
 238, is dif&cult to deal with seriously. A doubt arises which, by the way, 
 is not noticed by the Divisional Court, whether the relation was that of 
 master and servant at all, but not rather of bailor and bailee : Venables v. 
 Smith, 2 Q. B. 279, 282. 
 
 lb) Thompson v. Schmidt, 8 T. L. B. 120. Op. Morris li. Atkins and 
 Brooker, 18 T. L. E. 628. " A man who had a disorder in bis eyes called 
 on a farrier for. a remedy, and he applied to them a medicine oornmonly 
 used for his patients ; the man lost his sight and brought an action for 
 damages ; but the judge said : ' No action lies ; for if the complainant bad 
 not himself been an ass he would never have employed a fwrHer^ " ; Sir 
 Wm. Jones, Bailments, 100. See per Heath, J., in Shiells v. Blaokburne, 
 1 H. Bl. 158 at 161. 
 
 (fl) Slater v. Baker, 2 Wils. (0. P.) 359. 
 
 id) Godefroy v. Daltou, 6 Bing. 460; per Tindal, C.J., at 468. Spondet 
 pentiam artis. Spondet diUgentiam gerendo negotio parem. Imperitia 
 culpa adnumerahir : Story, Bailm. § 431. 
 
64 Negligence 
 
 Chap. III. the act of some other intelligent agent {a), the test of 
 liability is whether the negligent act is an "effective 
 cause " (6) of the injury. 
 
 Illustrations. " It seems strange to say that A shall not be responsible for his 
 
 negligence because B has been negligent likewise, C being the party 
 injured." (c) 
 
 A is guilty of manslaughter if B's negligence co-operating does not 
 detract from the result of A's actions, {d) 
 
 A gas company put a defective pipe in the shop of one of their 
 consumers. The servant of a gasfitter negligently takes a light to 
 inspect the pipe. There is an explosion. The gas company is 
 liable, (e) 
 
 PKOPOSITION XIV 
 
 Joint wrongdoer Where iniurv arises through the concurring acts or 
 
 liable for the . . 
 
 whole injury, omissions (where there is a duty to act) (/) of different 
 persons or forces, each wrongdoer is liable jointly and 
 seyerally for the whole injury, unless the acts or omissions 
 
 (a) See Propositidn V., ante, 25. 
 
 (6) See per Lord Esher, M.R., Engelhart v. Parrant, [1897] 1 Q. B. 240 
 
 • at 243. This phrase seems to be one coined by Lord Esher to express a 
 
 portion of the proximate or efficient cause, using the language of the 
 
 Schoolmen. Lopes, J., uses it a fortnight later in Lord Gerard v. Kent 
 
 County Council, [1897] 1 Q. B. 361. 
 
 (c) Per Cresswell, J., Thorogood v. Bryan, 8 0. B. 115 at 121. 
 The rule as to the care which is to be used in regard to property 
 adjoining a spot on which the public have rights of traffic is stated by Lord 
 Blackburn, Biver Wear Commissioners «. Adamson, 2 App. Cas., 743 at 767. 
 
 (d) Eeg. V. Haines, 2 C. & K. 368. 
 
 (e) Burrows v. March Gas and Coke Co., L. R. 5 Ex. 67 ; 7 Ex. 96. * In 
 the Ex. Ch. this case was decided on the ground of contract. See, however 
 per Kelly, C.B., L. R. 5 Ex. at 70. 
 
 (/) In Hartley v. Mayor, &o., of Rochdale, [1908] 2 K. B. 594, the con- 
 clusive answer to the bold contention of the defendants is that the road 
 authority were under no duty to act, i.e. no enforceable legal duty, and 
 the defendants were guilty of breach of duty, the consequences of which 
 were in full operation. On the contract the water authority might recover 
 against the road authority. Hyams «. Webster, L. B. 4 Q. B. 138, is the 
 same case with the important difierence that the defendant was not "uilty 
 of negligence. 
 
Co-operating Causes 65 
 
 can be disoriniinated, and the consequences of each Chap. IIL 
 attributed to its author. -"— 
 
 A dock company are subject to a duty to construct a river wall of a niustrations. 
 certain minimun height. They build it in one portion below the level 
 allowed. An extraordinary high tide overflows their wall and causes 
 damage. The dock company is prima facie liable for the whole damage 
 caused, (o) 
 
 Two steamships come into collision through the fault or default of the 
 masters and crews of both. A passenger injured on one ship can 
 recover against the owners of either or both the ships, (6) 
 
 PEOPOSITION XV 
 
 If an intelligent agent, in conjunction with irrespon- intelligent 
 sible agents, produces an effect not in ordinary course conjliMtton with 
 produced without the operation of an intelligent agent, *'''™=- 
 the intelligent agent is liable for the whole effect pro- 
 duced; and the intelligent agent continues liable for the 
 natural (c) consequences of his act until the injurious 
 operation of the effect is exhausted or is diverted by some 
 other intelligent agent, (d) 
 
 A passenger on a highway receives injury occasioned partly by ice mnstrations 
 
 (a) Nitro-Phosphate and Odam'a Chemical Manure Go. v. London and 
 St. Katharine Docks Co., 9 Cb. D. 503 ; see Child v. Hearn, L. E. 9 Ex. 176 
 at 180. The rule as to contribution between joint tort feasors is treated, 
 Merryweather v. Nixan, 1 Sm. L. 0. (11th ed.) 398 : "No wrongdoer can 
 be allowed to apportion or qualify his own wrong." The appUoation of 
 which is limited by Palmer v. Wick and Pulteney Steam Shipping Co., 
 Ltd., [1894] A. C. 818. " It might admit of a different construction if he 
 could show, not only that the same loss might have happened, but that it 
 must have happened if the act complained of had not been done " : per 
 Tindal, O.J., Davis v. Garrett, 6 Bing. 716 at 724. Harrison ■;;. Great 
 Northern By. Co., 3 H. & C. 231. 
 
 (6) Mills V. Armstrong, 13 App. Oas. 1. As to the disability of the 
 defendant to make a third person party to the action, see Horwell v. 
 London General Omnibus Co., Ltd., 2 Ex. D. 365. 
 
 (c) Or " probable." See Grove, J., L. R. 7 C. P. at 259. 
 
 (d) See Proposition V,, ante, 58, 
 
 B.E.L. F 
 
66 Negligence 
 
 Chap. III. which covers the road aud partly by defect in tlie structure of the road. 
 The road authorities are liable for the whole, (o) 
 
 A person places a heap of refuse on his land against his own wall, 
 which adjoins his neighbour's house. Rain falls on the heap, and makes 
 its way into the neighbour's house. The person placing the heap where 
 it caused mischief is liable for all the consequences. (&) 
 
 A horse, while being led along a public road, slips on some ice and 
 breaks its leg. The ice results from water used in washing a van in the 
 public street in breach of a Police Act. (c) The waste water runs into a 
 gptter towards a grating over tlie sewer. The grating is obstructed by 
 ice, and the water flows upon a portion of the causeway. If the cause- 
 way had been in a proper state of repair the water would have flowed 
 away without doing damage to any one. The person responsible for 
 washing the van does not know of, and has no duty to inquire about, 
 the defective condition of the causeway. He is not responsible for the 
 stoppage or accumulation of water that in ordinary circumstances 
 would flow down the grating to the sewer and not freeze on the 
 causeway, (d) 
 
 PEOPOSITION XVI 
 
 Act of God. Legal liability does not attach for any occurrence due 
 
 to natural causes directly and exclusively, and which no 
 amount of foresight and care reasonably to have been 
 looked for in the circumstances can avert, (e) 
 
 Illnetrations. -^ shipowner, subject to the liability of a common carrier, receives a 
 
 mare to be carried on his ship. Through badness of weather and her 
 fright and struggling, the mare receives such injuries that she dies. The 
 shipowner is under no liability for her loss. (/) 
 
 (a) Wharton, Negligenoe (2nd ed.), § 86. 
 
 (6) Hurdman v. North-Eastern By. Co., 3 C. P. D. 168. 
 
 (c) 2 & 3 Vict. u. 47, s. 54. 
 
 (d) Sharp v. Powell, L. R. 7 0. P. 258. If the person for whose act the 
 proprietor of the van was responsible were shown to have had knowledge of 
 the stoppage of the grating, of course the result would have been diSerent. 
 See Hardaker v. Idle District Council, [1896] 1 Q. B. 335, per Smith L J 
 at 350 ; also jgost, 69. ' ' " 
 
 (e) See per James, L.J., Nugent v. Smith, 1 C. P. D. 423 at 444. 
 (/) Nugent V. Smith, 1 0. P. D. 423. See ante, 16. 
 
Causation 67 
 
 Chap. III. 
 PROPOSITION XVII — 
 
 Legal liability for neerligence is limited to the con-umitof 
 
 • 1. 1 / r 1 • 1- liability. 
 
 sequences immediately (a), aud m ordinary sequence (b), 
 arising from the wrongful act which founds the liability. 
 In determining whether an act is wrongful, only , the 
 reasonable and probable (e) consequences of the act are to 
 be looked to. (d) When tl^ese indicate probable injury 
 the act is a wrongful one, and liability attaches for all the 
 actual consequences flowing in uninterrupted sequence from 
 the act. (e) When these indicate probable harmlessness 
 the act is a lawful one, and carries no legal liability even 
 though, in fact, harm follows from it. 
 
 Injure non remota catisa sed proxima speatatur. (/) 
 
 A places lime-rubbish in a highway ; the dust blown from it frightens illustrations, 
 the horse of B and nearly carries him into contact with a passing waggon, 
 
 (a) "Immediately" in this connection designates consequences which 
 "a reasonable man might foresee"; per Channell, B., Smith v. L. & 
 S.-W. Ey. Co., L. B. 6 C. P., at 21 ; that is, in the run of cases would foresee. 
 
 (6) "In ordinary sequence " means, " given a negligent act, then all circum- 
 stances which in fact result from this act and all the natural consequences '■' ; 
 per Kelly, O.B., Smith v. L. & S.-W. By. Co., L. B. 6 C. P., at 20. 
 
 (c) See note (c) to Proposition XV., cmte, 65. 
 
 (d) " The law provides for that which is common, not for that which is 
 unusual" : per Parke, B., Hawtayne v. Bourne, 7 M. & W. 595 at 598. 
 
 (e) " When it has been once determined that there is evidence of 
 negligence, the person guilty of it is equally liable for its consequences, 
 whether he could have foreseen them or not " : per Channell, B., in Ex. 
 Ch., Smith i;. L. & S.-W. By. Co., L. B., 8 C. P. at 21. "I also agree 
 that what the defendants might reasonably anticipate is, as my Brother 
 Channell has said, only material with reference to the question whether 
 the defendants were negligent or not, and cannot alter their liability 
 if they were guilty of negligence " : per Blackburn, J., I.e. " I agree with 
 Brother Nares, that whenever a man does an unlawful act he is answerable 
 for all the consequences " : per Gould, J., Scott v. Shepherd, 1 Sm. L. C. 
 (11th ed.) at 459 ; to the same effect, " Every one who does an unlawful 
 act is considered as the doer of all that follows " : see De Grey, C.J., at 460. 
 Sir P. Pollock, Torts (8th ed.), 41, suggests a different rule, based on the 
 dicta of Pollock, C.B., in Greenland v. Chaplin, 5 Ex. at 248. If an act is 
 negligent damages may be recovered for all its direct consequences. To 
 determine whether an act is negligent, foresight, of its consequences must 
 be regarded. 
 
 (/) Bacon, Max. Beg. 1. 
 
68 Negligence 
 
 Chap. III. in avoiding which the driver, without the necessity of tnrning his horse 
 
 so violently as he does, drives over other rubbish placed in the road by 
 
 and is overthrown and hurt. B cannot i-ecover against A. (a) 
 
 A carriage is driven against the wheels of a chaise. The collision 
 throws a person i;j the chaise upon the " dashing-board " ; the " dashing- 
 board " falls upon the horse ; the horse kicks and injures the chaise. 
 The person responsible for the collision is responsible for the whole 
 train of occurrences. (6) 
 
 The New River Company causes a stream of water to spout on a 
 highway to a height of several feet. The water is unguarded by the 
 company's servants. By the side of the highway is an open ditch 
 insufficiently protected. A horse with a carriage is being driven along 
 the highway. The horse takes fright at the spouting water and falls 
 into the ditch. The Water Company is liable for all the consequences 
 of their negligence, (e) 
 
 An Act of Parliament empowers commissioners to lease a canal ; the 
 lessees are to do repairs after notice. If the lessees make default in 
 doing the repairs, the commissioners are authorized to do them. One 
 of the locks of the canal gets out of repair. The commissioners give no 
 notice. A barge is blocked by the falling in of the side of the lock. No 
 action lies against the commissioners, (d) 
 
 A passenger is wrongfully ejected from a railway carriage. He leaves 
 behind his race-glass, which he loses. His loss is the consequence of his 
 own carelessness. The company is not liable, (e) 
 
 An Act of Parliament empowers commissioners to construct a cut 
 with proper gates and sluices, to keep out the waters of a tidal river, and 
 also a culvert under the cut to drain lands on the east side of the cut. 
 The culvert is to be kept open at all tunes. Through defective construc- 
 tion the river flows into the cut, bursts the western bank, and floods the 
 adjoining lands. The occupier of lands on the east side closes the culvert 
 
 (a) Flower v. Adam, 2 Taunt. 314. If the running against the second 
 heap was the result of not being able to manage the horse through the 
 fright, then B. would be able to recover. Ante, 52. 
 
 (6) Gilbertson v. Biohardson, 5 C. B. 502. Usually perhaps dash-board, 
 i.e. the board or leathern apron In front of a vehicle. 
 
 (c) Hill V. New Biver Oo. (1868), 9 B. & S. 303. 
 
 (d) Walker v. Goe, 8 H. & N. 395 ; in Ex. Ch. 4 H. & N. 350. 
 
 (e) Glover o. L. & S.-W. By. Co., L. B. 3 Q. B. 25. The result would 
 be difEerent if the glasses were shaken from the person of the passenger in 
 violently removing him, or if such a state of terror and confusion had been 
 produced by the defendants' wrongful act as to induce the loss- cp 
 WooUsy 1}. Soovell, 3 Man. & By. 105. The decision went on the leaving 
 of the glasses being the plaintifi's own negligence. 
 
Causation 69 
 
 and stops a deal of .damage. Occupiers on the west remove the obstruc- Chap. IIL 
 
 tion, and cause the waters to flow again upon the eastern lands. The 
 
 commissioners are liable for the whole damage, (a) 
 
 A railway company having trimmed the banks and hedges at the side 
 of their line, rake the trimmings into heaps between the rails and the 
 hedges, and leave them there for a fortnight in very hot weather. These 
 are set on fire by a spark from one of the company's engines in a high 
 wind. The fire burns the hedge, passes over a stubble field and a 
 pubhc road, and destroys a cottage 200 yards from the line. The 
 company is liable for all the damage. (J) 
 
 A ship, being driven on a sea-wall through the negligence of her crew, 
 becomes a wreck, and canuot be removed without breaking her up. To 
 do this involves the sacrifice of valuable property. To avoid the sacrifice 
 the property is unloaded while the ship is still on the wall, to which it is 
 doing increasing damage during the whole time of unloading. The ship- 
 owners are liable for the whole damage, (c) 
 
 A person unlawfully washes a van in the public street. Water from 
 the washing flows some distance from the gutter towards a sewer grating. 
 This happens to be obstructed with ice. The water flows over a portion 
 of the roadway and there freezes. A horse being led along the road slips 
 
 (o) Collins V. Middle Level Commissioners, L. R. i G. P. 279. The 
 ground of this decision is that by the Act of Parliament the culvert was to 
 be kept open at all times. The occupiers on the west had thus a right to 
 its being open. Cp. Harrison v. G. N. R. Co., 3 H. & C. 231 ; Nield v. L. & 
 N.-W. By. Co., L. R. 10 Ex. 4; Whalley v. Lanes. & Y. By. Co., 13 
 Q. B. D. 131. 
 
 (6) Smith V. L. & S.-W. Ry. Co. (1870), L. R. 5 C. P. 98; 'in the 
 Ex. Ch. L. B. 6 C. P. 14. Brett, J., thought otherwise. The rule he 
 preferred was that " the plaintifi is entitled to recover for all the damage 
 caused which was the direct consequence of the wrongful act, and so 
 probable a consequence that if the defendant had considered the matter he 
 must have foreseen that the whole damage would result from that act " : 
 In re London, Tilbury and Southend By. Co. and Trustees of Gower's 
 Walk Schools, 24 Q. B. D. 326 at 329. In Smith v. L. & S.-W. By. Co., in 
 the Ex. Ch., two inquiries were contemplated : 1st. Whether the act from 
 which the injury flowed was a negligent act. 2nd. If so, what were the 
 continuous consequences ? In determining whether the act was negligent 
 or not, only reasonable and probable consequences ab ante are to be taken 
 into account. See per Bramwell, B., in Blyth v. Birmingham Waterworks 
 Co., 11 Ex. 781 at 785. When the quality of the act is fixed, then only the 
 continuousness of the consequences is regarded. Ante, 67 n. (e). 
 
 (c) Bailiffs of Bomney Marsh v. Trinity House, L. B. 5 Ex. 204 ; in Ex. 
 Ch. L. B. 7 Ex. 247. The position of the ship was due to negligence ; the 
 consequences flowed in ordinary sequence from this. If there had been 
 no negligence the loss would have lain where it fell ; op. The Douglas, 7 
 P. D. 151, per Brett", L.J., at 160. 
 
70 ' Negligence 
 
 Chap. III. "" ^^ '•'^ *nd breaks his leg. The accident is not a reasonable and 
 probable conset[uenee of the act of washing the van. (a) 
 
 A man is cleaning a window. The sash line breaks. By the jar of 
 the fall the window is broken ; the broken glass falls on and injures a 
 passenger. The accident is too unlikely a contingency to be foreseen by 
 an ordinary careful person, so there is no liability. (5) 
 
 A railway porter at the arrival platform of a railway station wheels a 
 truck of luggage to the head of a flight of steps leading to the street. 
 This is an improper place for luggage to be stacked. At the foot of the 
 steps a number of outside porters are waiting anxiously for a job. A 
 policeman is usually stationed there to restrain them ; on this occasion he 
 has left his post. On the coming of the luggage the porters rush up the 
 steps ; in their struggle for the luggage a package rolls down the steps 
 and injures a passenger. The railway are not liable, (c) 
 
 Cattle are rightfully crossing a railway line. Servants of the railway 
 company are at the same time and without proper care moving trucks 
 from a siding. The cattle become frightened, and disperse. Subsequently 
 some are found lying dead on another portion of the railway, whither 
 they have strayed through a gap in a garden fence. The company is 
 liable for all the injuries received by the cattle from the time control of 
 them is lost through the default of the company, {d) 
 
 A passenger along a public footway is injured by the fall of a plasterer's 
 tool from the window of an unfinished house adjacent to the footway. A 
 plasterer walking aloiig a plank causes it to spring, and the tool that was 
 
 (a) Sharp v. Powell, L. E. 7 0. P. 253. The act of washing the van in 
 the road is not in itself, and apart from its consequences, a breach of duty 
 to the owner of the horse, or if it is, the washing is not the proximate 
 cause of the plaintiff's horse's accident. When the water gets intci the 
 ordinary channel the consequences of the originally unlawful ac$ are 
 exhausted. The accident is caused by water being obstructed from flowing 
 down the gutter. The obstruction is not a matter for which the van- 
 washer is answerable. Cp. Assop v. Yates, 2 H. & N. 768. There the 
 erecting of the hoarding was negligent, because it was too wide. The 
 accident occurred through a cart knocking against it. The negligence in 
 the erecting the hoarding was too remote to give a cause of action to the 
 plaintiff who was injured by the fall of it. If the erecting of the hoarding 
 had been unlawful, the result must have been different. Cp. the Scotch 
 case of Morrison v. M'Ara, 23 R. 564 ; also Abrahams i). BuUock, 85 L. T. 
 237 at 289 — a decision overruled on the main point, 18 T. L. B. 701. 
 
 (6) Bobinson v. Eeid's Trustees, 2 F. 928. 
 
 (c) Murphy v. G. N. By. Co. of Ireland, [1897] 2 I. B. 301. 
 
 {d] Sneesby v. Lanes. & Y. By. Co., L. B. 9 Q. B. 263 ; 1 Q. B. D. 42. 
 
Causation • 71 
 
 lying on the plank is thus dislodged. There is no liability either on the nT,nn TTT 
 plasterer or his employer, (a) umtp. j.h. 
 
 A person to protect certain interests in property puts up a barrier in 
 circumstances unauthorized and wrongful. This is removed by another 
 person, and put on the side of the way. A third person using the way on 
 a very dark night is injured. The person originally erecting the barrier 
 is liable. (6) 
 
 Persons endeavour to force themselves into a railway carriage that is 
 over-full. A passenger rises to prevent their entry. The train moves 
 forward and is on the point of entering a tunnel, when a railway porter, 
 turning away the persons who are attempting to force an entry, slams the 
 door. As the train begins to move the passenger, to save himself from 
 falling, puts his hand on the lintel of the door. His thumb is caught by 
 the door and crushed. The injury is an accident for which the railway 
 company is not liable, (c) 
 
 (as) Pearson v. Cox, 2iC. P. D. 369. The (juestion whether the plasterer's 
 act is a negligent one is dependent on determining whether, in walking 
 
 along the plank a reasonable man should have foreseen the oousequenoes 
 
 the jumping of the plank, the falling of the tool, the injury of the passer-by. 
 If the evidence had been that the plasterer was jumping on the plank to 
 amuse himself by making it spring, the act would have been negligent and 
 the consequences not too remote. 
 
 (6) Clark v. Chambers, 3 Q. B. D. 327. See note to Proposition V., 
 discussing lUidge v. Goodwin and Bngelhart v. Parrant & Co., ante 45 n (6) 
 PoweU V. MoGlynn, [1902] 2 I. E. 154. In McDowell v. G. W. By. Co., 
 [1902] 1 K. B. 618, Kennedy, J., appears to have held that knowledge of a 
 danger arising from the possible acts of wrongdoers creates a duty to guard 
 against it. This as a general proposition is clearly not so. I may know 
 that people drown themselves in my canal, yet this does not impose a legal 
 duty on me to fence it, apart from the statutory duty under 61 & 62 Vict. 
 0. 16. Kennedy, J., aJso regards the act of the railway company in pro- 
 viding a catch-point for their own purposes as imposing a duty to use it for 
 the benefit of third persons. .This again is not so ; per Willes, J., Skelton 
 V. L. & N.-W. Ry. Co., L. B. 2 C. P. at 636. The Scotch Courts arrived 
 at an opposite conclusion in Murphy v. Smith, 23 So. L. R. 709. On 
 principle the decision seems bad, in that it limits the owner's rights of 
 property by the disposition of bad neighbours, and not by his own conduct. 
 " The van as placed was not a cause of danger " : per Kennedy, J., at 625. 
 This decision was overruled in the Court of Appeal, [1903] 2 K. B. 331 ; 
 and is discussed in Beven, Negligence (3rd ed.), 97, 432 ; Cooke v. Midland 
 G. W. Ry of Ireland, [1908] 2 1. R. 242. In Harrold v. Watney the decision 
 turned on the fact of the fence in the condition in which it was, not in 
 which it might become, constituting a danger to those using the highway. 
 Cp. Horsburgh v. Sheach, 3 P. 268 ; and Barry Ry. Co. v. White, 17 T. L. R. 
 644 (H. L.). Post, 93 n. (6), 97 n. (a). 
 
 (c) Metropolitan Ry. Co. v. Jackson, 3 App. Cas. 193. The grounds of 
 this are — 1st. The negligence of the company in having the carriage over- 
 full was not " immediately " connected with the subsequent injury ; 2nd. 
 The slamming of the door in the circumstances was not negligent. 
 
72 Negligence 
 
 Chap. III. -^ person while being driven in a cab is upset. Work has been done 
 
 in the road in laying a sewer, and the surface has been incompletely 
 
 made up. The driver is induced to swerve aside to another part of the 
 road to avoid the defect, and in so doing comes in contact with a heap of 
 rubbish deposited there by some wrongdoer. The cab is overturned and 
 the passenger injured. The road authority is liable for the injury. Ifl) 
 
 PKOPOSITION XVIII 
 
 The onus of proving injuria and damage lies on him 
 seeking to recover in respect thereof, except 
 
 (1) Where there is a presumption of law in favour of 
 
 an affirmative allegation, the party who supports 
 the negative must call witnesses to rebut the 
 presumption ; 
 
 (2) Where the subject-matter of the allegation lies 
 peculiarly within the knowledge of one of the 
 parties, that party must prove it. 
 
 Ei incwmhit probatio qui dicit ; non qui negat. (6) 
 
 (a) Bull V. Mayor, &c., of Shoreditoh, 19 T. L. E. 64 (O.A.), Collins, 
 M.E.., reasons as follows : " A breach of duty as between the defendants 
 and the plaintiffs was clearly established. There was an immediate duty on 
 the part of the defendants towards the plaintlfi as one of the class of 
 persons for whose benefit the duty of maintaining the roads had been 
 imposed on the defendants, and whom they must contemplate as being 
 likely to use the roads. There was an obligation on the defendants to 
 safeguard the plaintiff, and under those circumstances in his opinion if 
 there was a chain of causality connecting their breach of duty with the 
 ultimate mischief, then, unless there was a novus actus interveniens, they 
 were responsible, even for the consequences of the act of an independent 
 wrongdoer." See Street, Foundations of Legal Liability, vol. i. 101 
 Foresight of Harm. The other view is set out in Pollock, Torts isth. ed )' 
 41, and Salmon, Torts, 103. ^ '■'' 
 
 (6) D. 22, 3, 2; op. Wakelin v. L. & S.-W. Ey. Co., 12 App. 
 Gas. 41, per Lord Halabury, 0., at 45. See also Manzoni v. Douglas 
 6 Q. B. D. 14S, and per Lord Wensleydale, in Morgan v. Sim, 11 Moo. P.' 
 0. 0. 307 at 311. See Angus v. L. T. & Southend Ey. Co., 22 T. L. E. 222* 
 discussed from the point of view of Wakelin's case, Beven Negligence' 
 (Srd ed.), 144; Phipson, Evidence (4th ed.), 22. ° 
 
Onus of Proof 73 
 
 A horse bought the previous day at an auction is being ridden in a djor) TTI 
 public thoroughfare to try it. The horse is restless, and the rider takes 
 every care. Notwithstanding, the horse swerves from the roadway on to mustrations. 
 the pavement, and knocks down a man walking there. The rider is not 
 liable in the absence of proof of knowledge that the horse was vicious and 
 unmanageable, (a) 
 
 A passenger in an omnibus sues for injuries caused by a blow from the 
 hoof of one of the horses. No evidence is given that the horse is a 
 kicker, but it is proved that the panel bore marks of other kicks, and that 
 no kicking strap was used. In the circumstances the mere fact of the 
 horse having kicked must be left to the jury. (J) 
 
 Plaintiff having given evidence that defendant's horse, harnessed to a 
 cart, ran away unattended along a highway where the plaintifif lawfully 
 was and injured him, the defendant is called on to answer the case made ; 
 for the facts are more consistent with the absence of ordinary care in, the 
 superintending the horse than with such care having been used, (c) 
 
 (1) Charterers of a ship are made defendants to a claim for the loss of 
 the ship by fire in consequence of their putting on board a dangerous 
 compound, without giving notice to those employed in navigating the 
 vessel. The plaintiff is required to prove want of notice, {d) 
 
 A dwelling-house is leased with a covenant not to permit a sale by 
 auction on the premises without the consent of the lessor. The lessee 
 underlets the premises, and assigns his goods there under a bill of sale. 
 The assignee sells the goods by auction on the premises. The lessor 
 brings ejectment for a forfeiture by a breach of the covenant. He must 
 prove that the sale is by permission of the lessee, and that the lessor has 
 not given his consent to it. (e) 
 
 (a) Hammaek v. White (1862), 11 C. B. (N. S.) 588. Ante, 51. Crawford 
 V. Upper, 16 Ont. App. ii.0, per Hagarty, O.J., at 144. "The reasonable 
 view of the law and of the ordinary transactions of human life is that if a 
 man's horses, galloping through a street, run on to and injure a passenger 
 on the side walk a case of primd facie wrong is shown. It may be fully 
 explicable, but I think it calls for explanation." 
 
 (6) Simson i). London General Omnibus Co., L. R. 8 0. P. 390. 
 
 (c) Snee v. Durkie, 6 P. 42 ; Watson v. Weokes, in Tolhausen v. Davies, 
 57 L. J. Q. B. 892 at 394. See also per Lindley, J., Manzoni v. Douglas, 6 
 Q. B. D. at top of 153, substituting " defendant's brougham " for " plaintifi's 
 brougham." 
 
 (d) Williams v. The Bast India Co., 3 East 192 ; 6 E. E. 589. The King 
 V. Haslingfield, 2 M. & S. 558 ; 15 E. E. 350. 
 
 (e) Toleman v. Portbury, L. E. 5 Q. B. 288. 
 
74 Negligence 
 
 Clia<p. III. (2) Assignees of a bankrupt sue for a debt due to tbe bankrupt's 
 
 estate. The defendant seeks to set off cash notes dated previously to the 
 
 bankruptcy. He must further show that they came into his hands before 
 the bankruptcy, (a) 
 
 PKOPOSITION XIX 
 
 Fault Where injury is caused by anything under the control 
 
 presumed. ^f g^ persou and is of a character that in the ordinary 
 
 course of things does not happen if such person uses 
 
 proper care, the legal presumption is that the occurrence 
 
 arises from want of proper care. 
 
 But there must be reasonable evidence of negligence; 
 and the mere occurrence of an injury will raise a 'prima 
 facie case ; 
 
 (1) Where the injurious agency is under the control 
 
 of the alleged wrongdoer ; 
 
 (2) And the injury is such as in the normal course 
 
 of things does not happen where those who have 
 the management of things use ordinary care. 
 
 Over inanimate things this duty of care is absolute ; 
 over animate beings it extends only to guard against 
 injuries arising from their customary conduct, or any pro- 
 pensity contra naturam suam of the animal, of which the 
 owner has knowledge. 
 
 Bes ipsa loquitur, (b) 
 
 (a) Dickson v. Evans, 6 T. B. 57 ; 3 R. R. 119. See Phipson, Evidence 
 (4th ed.), 22-28. 
 
 (b) Broom, Legal Maxima (6th ed.), 298; Chaproniere v. Mason, 21 
 T. L. B. 633 (the bath bun case). The maxim res ipsa loquitur does not 
 apply in master and servant cases. The common law rule requires culpa 
 as a pre-requisite of liability. Fault must he proved affirmatively, Paterson 
 V. Wallace, 1 Maoq. (H. L. So.) 748. In the Supreme Court of the United 
 States, Patton v. Texas, &c., Ry. Co. (1901), 179 U. S. 658, 663, the 
 principle is thus put : " The fact of accident carries with it no presumption 
 of negligence on the part of the. employer, and it is an affirmative fact for 
 the injured employ^ to establish that the employer has been guilty of negli- 
 gence." In Stearns v. Ontario Spinning Co. (1898), 184 Pa. St. 519 at 523, a 
 broad principle is formulated : " Excepting where contractual relations exist 
 
Presumption of Fault 75 
 
 A barrel of flour falls from a warehouse over a shop which the CJiai) III 
 defendaut occupies, and injures the plaintiff, who is walking along the ' 
 
 public highway. The fall of the barrel from the defendant's premises is U'uBiratiuus. 
 prima facie evidence of negligence, (a) 
 
 An ofiBcer of customs engaged at certain docks is ordered from one 
 part of them to another. As he goes he is felled to the ground by six 
 bags of sugar falling on him. . The bags, were being lowered by servants 
 of the dock company by means of a crane. The fall of the bags is 
 evidence of negligence against the dock company. (6) 
 
 A packing case belonging to defendant is reared against the wall of 
 his premises. One of his servants is watching it. This packing case falls 
 on the plaintiff. The fall of the packing case is prima facie evidence of 
 its having been set up improperly, (c) 
 
 between the parties, as in the case of carriers of passengers and some others, 
 negligence vrill not be presumed from the mere happening of the accident 
 and a consequent injury, but the plaintifi must show either actual 
 negligence or conditions which are so obviously dangerous as to admit of 
 no inference other than that of negligence." By the common law of 
 England the fact of an accident having happened to a servant while working 
 for his master is in no case sufficient to raise the presumption that the 
 servant has a claim against his master for legal compensation. The autho- 
 rities are all set out by Mr. Labatt, Master and Servant, 2298. Where 
 circumstances proved are of a neutral character, evidence of opinion is 
 sometimes given to point their significance, as in Smith v. Midland By. Co., 
 57 L. T. 8X3. The maxim res ipsa loquitur does not apply to an accident 
 on a highway : Fletcher v. Eylands, L. B. 1 Ex. 286, per Blackburn, 3. 
 Neglect of this principle is perhap.s at the root of much nonsense talked 
 about motor-cars. In this coimection attention may be drawn to an error 
 which regards an occurrence as a nuisance which may not be treated as a 
 negligent act. A nuisance is a continuing wrong. Reedie v. L. &, N.-W. By. 
 Co., 4 Ex. 2i4, 257, per Rolfe, B. : " The wrongful act here could not in any 
 possible sense be treated as a nuisance. It was one single act of negligence." 
 The, electric supply cases have been used to contend that a single act may 
 constitute a nuisance, and Midwood v. Mayor, c&c, of Manchester, [1905] 
 2 K. B. 597, has been given as authority; but there Collins, M.E., at 605, 
 states the basis of decision to be : " There was a gradual accumulation of 
 explosive gas brought about by the fusion of the bitumen by the operation 
 of the overheated electric wires, which process went on for some three 
 hours, and ultimately resulted in an explosion." 
 
 (a) Byrne v. Boadle (1863), '2 H. & 0. 722. The distinction between 
 this case and Hammaok v. White, 11 0. B. (N. S.) 588, is that in Hammaok 
 V. White aU care had been used, and the accident happened from an 
 unknown peculiarity in the horse. Cp. Blower v. G. W. By. Co., L. B. 7 C. P. 
 655 ; and Kendall v. L. & S.-W. By. Co., L. B. 7 Ex. 373. In the present 
 case, if care had been used, in the ordinary com'se of things the accident 
 would not have happened. 
 
 (6) Scott V. London and St. Katharine Docks Co., 3 H. & C. 596. 
 Nevertheless, Erie, C.J., and Mellor, J., could not find reasonable evidence 
 of negligence in these facts. 
 
 (c) Briggs V. Oliver, 4 H. & C. 403. Martin, B., dissented from this 
 decision. He thought the fallacy underlying the case was an assumption 
 
76 
 
 Negligence 
 
 Chap. III. Plaintiff is injured by a jolt of the train in which he was a passenger. 
 
 The jolt is caused by the train going against two stationary buffers. 
 
 Evidence is given that the train ought to have been brought up without 
 the jolt. The mere fact of the happening of the accident is sufficient to 
 entitle the plaintiff to have his case submitted to the jury, {a) 
 
 PKOPOSITION XX 
 
 It fault is not Where evidence is equally consistent with either negli- 
 
 presumed it , . . . p i - t 
 
 must be shown, gence OX no negligence, it is not competent lor the judge 
 to leave the jury to find either alternative. The plaintiff 
 must be taken to have failed to establish a case, (b) 
 
 Illustrations. 
 
 On a dark night in a storm of snow a woman endeavours to cross a 
 London thoroughfare. She passes the line of direction in which an 
 omnibus of the defendant's is going, then becoming alarmed at the 
 approach of another vehicle she turns back and endeavours to regain the 
 pavement. The horses of dofepdant's omnibus knock her down and the 
 wheels pass over her. These facts- disclose no evidence of a breach of 
 duty fit to submit to a jury, (c) 
 
 Plaintiff, while lawfully walking on the foot pavement of a public 
 thoroughfare, is knocked down by a horse drawing the defendant's 
 brougham. Plaintiff's witnesses show that the horse had bolted and the 
 defendant's coachman had lost all control over it. The cause of the 
 bolting is not known. In these circumstances there is no evidence of 
 negligence to submit to a jury, (d) 
 
 that the plaintiff should be excused from proving negligence, because the 
 person who really knew whether there was negligence or not was the 
 defendant's servant. Gp. Williams v. The East India Co., 3 East, 192. 
 
 (a) Burke v. Manchester, ShefiS.'eld and Lincolnshire Ev Co 22 L T 
 (N. S.) 4i2. •' ■' 
 
 (6) See per Williams, J., Cotton v. Wood (1860), 29 L. J. C. P. 333 at 
 335 ; per Lord Halsbury, C, Wakelin v. L. & S.-W. By. Co., 12 App Cas 
 41 at 44 ; especially the Irish C. of A. case, Powell v. M'Glynn and Bra'dlaw' 
 [1902] 2 1. B. 154. ^ ""!«.«, 
 
 (c) Cotton V. Wood, 29 L. J. C. P. 333 ; Mitchell v. Glamorgan Coal Co 
 23 T. L. E. 588 ; Harris v. Tmn, 5 T. L. E. 221. ' 
 
 (d) Manzoni v. Douglas, 6 Q. B. D. 145. See also Williams v 
 G. W. By. Co., L. B. 9 C. P. 157. '""ams v. 
 
Evidence 77 
 
 A person goes to a railway station to inquire about tiie departure of Chap. III. 
 
 trains. He is referred by a porter to a time-table hanging in a portico in . 
 
 the station. While looking at the time-table a plank and a roll of zinc 
 fall through a hole in the roof and injure him. In an action against the 
 railway company the injured person cannot succeed on these facts in 
 getting his case to the jury, (a) 
 
 Builders, having finished the outside of a house, remove the outer 
 boarding and employ a sub-contractor to do the internal plastering. One 
 of the sub-contractor's men walking along a plank shakes it so as to 
 cause a tool to fall out of window and to injure a passer-by. The 
 falling of the tool is not a probable accident that might have been fore- 
 seen so to impose a duty on the builders to guard against it. (6) 
 
 Whilst defendant is gratuitously conveying his servant to his place 
 of work the horses and front wheels of defendant's carriage separate 
 from the hinder wheels. The plaintiff (the servant) is seriously 
 injured. The carriage was regularly examined by a blacksmith every 
 three months. The above facts do not disclose a prima facie case of 
 negligence, (c) 
 
 PEOPOSITION XXI 
 A mere surmise that the defendant's conduct points to sciniiua of 
 
 ^ evidence not 
 
 default does not entitle the plaintiff to have his case left ™™eii. 
 
 (a) Welfare v. L. & B. By. Co., L. R. 4 Q. B. 693. If the man who 
 dropped the plank was a servant there was not enough evidence that he 
 was negligent. But the probability is that he was the servant of a con- 
 tractor for whom even if negligent the railway company would not be 
 liable. Again, the probability is not that the roof was so out of repair as 
 to render it dangerous to send a man ou it. If it were true, the plaintiff 
 should show it ; further, the fall might be due to a mere accident. Op. 
 per Bramwell, B., in Lay v. Midland By. Co., 30 L. T. (N. S.) 529 at 531. 
 Kearney v. L., B. & S. C. By. Co., L. B. 5 Q B. 411, in Ex. Oh. 6 Q. B. 
 759, is distinguishable from Welfare's case in that there it was the duty of 
 the defendants to inspect the bridge, from a pier of which the brick causing 
 the plaintiff's injury fell. Cp. Tarry v. Ashton, 1 Q. B. D. 314, per Black- 
 burn, J., at 319, as to liability for "a latent defect which he could not 
 discover." See also Davison v. Henderson, 22 B. 448. 
 
 (b) Pearson v. Oox, 0. P. D. 369, cmU, 71 ; Black v. Christ Church 
 Knanoe Co., [1894] A. C. 48. See also Higgs v. Maynard, 12 Jur. (N. S.) 
 705, where a ladder falling through a window was held not evidence of 
 negligence since it was " not necessarily an event occurring in the course 
 of the defendant's business." A sufficient reason would have been the 
 other reason given for the decision : " the ladder was not shown to have 
 been under the management of the defendant or his seivaats." 
 
 (c) Moflatt V. Bateman, L, B. 3 P. C. 115. 
 
78 Negligence 
 
 Chap. Ill, to the jury; he must give evidence of some specific 
 negligent act or omission. («) 
 
 niustrations. On the platform of a railway station there are two doors, one of which 
 
 is marked " For Gentlemen," has a light over it, and leads to an urinal. 
 The other, which is marked " Lamp Room," is open, has steps down- 
 stairs inside and no lamp over it. The plaintiff, who could not read, asks 
 his way to the urinal of a stranger, then going in a huny through the 
 door of the lamp room falls down the steps. In an action against the 
 railway company on proof of these facts the plaintiff is not entitled to 
 recover. (J) 
 
 On the platform of a railway station there is a portable weighing 
 machine used for weighing passengers' luggage, and which has stood 
 against a pillar. Passengers had passed it in going to and coming from the 
 trains, for about five years without any accident occurring. The foot of 
 the machine projects about six inches above the level of the platform. 
 Plaintiff is driven by the crowd on the platform against the machine, 
 catches his foot, and falls over it. The above facts do not suffice to 
 found a case of negligence against the railway company, (c) 
 
 An ownerless dog by some unexplained means gets upon the platform 
 at a railway station. At nine o'clock in the evening he attacks a woman 
 
 (a) In Lovegrove v. L. & B. Ey. Co., 16 C. B. (N. S.), at 692, Willes, J., 
 said : ■' It is not enough for the plaintiff to show that he has sustained an 
 injury under circumstances which may lead to a suspicion, or even a fair 
 inference, that there may have been negligence on the part of the defen- 
 dant ; he must go on, and give evidence of some specific act of negligence 
 on the part of the person against whom he seeks compensation." Willes, J., 
 considers the question of the sufficiency of a scintilla of evidence in Ryder 
 V. Wombweli, L. R. 4 Ex. 32 at 39. See also per Lord Hatherley, Dublin, 
 Wioklow and Wexford Ry. Co. v. Slatte'ry, 3 App. Cas. 1155 at 1171. " For 
 weighing evidence and drawing inferences from it there can be no canon. 
 Each case presents its own peculiarities, and in each commcusense and 
 shrewdness must be brought to bear upon the facts elicited " : Phipson, 
 Evidence (4th ed.), 625. Mr. Phipson informs me that the correct 
 reference for this is per Birch, J., in the Queen v. Madhub, etc., 21 
 W. R. (Or.) 13, 19. Cp. per Lord Blackburn, Lord Advocate v. Lord 
 Blantyre, 4 App. Cas. at 792. To the proposition in the text exacting 
 specific evidence of negligence to found a case the Privy Council in 
 MoArthur v. Dominion Cartridge Co., [1905] A. C. 72, makes an exception 
 " when the accident causing the injury is the work of a moment, and the 
 eye is incapable of detecting its origin or following its course. It cannot 
 be of universal application or utter destruction would carry with it 
 complete immunity for the employer." This case is examined in detail, 
 Beven, Negligence (3rd ed.), 615.i 
 
 (6) Toomey v. L., B. & S. C. Ry. Co., 27 L. J. C. P. 39. 
 
 (c) Cornman v. Eastern Counties Ry. Co., 4 H. & N. 781 : " It was 
 incumbent on the plaintiff to give ' reasonable evidence ' " : per Willes J., 
 at 303. 
 
Evidence 79 
 
 there and tears her dress. Nothing more is seen of the dog until about Chap. III. 
 
 half-past ten. Then he is seen attacking a cat belonging to the station, 
 
 and the porter kicks him out. He runs along the line, escaping the 
 porter's observation among the crowd on the platform, where ten minutes 
 later he bites . another woman. She brings an action. A nonsuit is 
 refused. The jury in answer to questions left to them find that the dog 
 is a ferocious and dangerous animal; that the servants of the railway 
 company had notice of his attack on the woman earlier in the evening, 
 and took no measures to prevent a recurrence ; and that through the 
 negligence of the company's servants the station is dangerous to persons 
 lawfully coming there. The Court on appeal orders a nonsuit, on the 
 ground that the facts disclose nothing which the defendants might have 
 done and which they omitted to do to prevent the accident. The facts 
 are consistent with the absence of the dog from nine o'clock till half-past 
 ten. (a) 
 
 A passenger on a railway gets up from his seat, puts his hand on the 
 bar which passes across the window of the carriage with the intention of 
 looking out to see the lights of the next station. The pressure causes the 
 door to ily open. The passenger falls out and is injured. The want of 
 an adequate fastening to the door is evidence of negligence which must 
 be left to the jury. (5) 
 
 Sugar shipped sound under a bill of lading is converted into syrup 
 as it is packed before the end of the voyage. 
 
 The shipowner is not liable, because the result is consistent with the 
 occurrence of storms which might occasion the injury without any want 
 of care on the part of the captain or crew. 
 
 Sugar shipped sound under a bill of lading is converted into syrup 
 before the end of the voyage. It is further proved that the damage is 
 done by fresh water. 
 
 The shipowner is liable ; for then the probability is that the damage 
 had been caused by rain through leaving open the hatches, (c) 
 
 (a) Smith v. G. E. Ey. Co., L. E. 2 C. P. 10. The canon of evidence 
 was thus formulated by Willes, J. : " It is not enough to show that the 
 damage may have occurred through the negligence of the defendants' 
 servants — even coupled with the suggestion that no sufficient explanation 
 was given of the dog's conduct. The plaintifE must show something which 
 the defendant might have done and which they omitted to do, before they 
 can be held responsible for the misfortune which has happened." Probably 
 a more accurate expression would be not " might have done " but " were 
 under a legal duty to the plaintiff to do," i.e. to take all ordinary and 
 reasonable precautions ; cp. Allen v. New Gas Co., 1 Ex. D. 251. 
 
 (6) Gee v. Metropolitan By. Co., L. E. 8 Q. B. 161 ; Bobson v. North- 
 Bastern By. Co., L. E. 10 Q. B. 271. 
 
 (c) Czech V. General Steam Navigation Co., L. E. 3 C. P. 14, per 
 Willes, J., at 19. 
 
80 
 
 Negligence 
 
 Chap. III. 
 
 PROPOSITION XXII 
 
 Well-defined 
 negligence. 
 
 IlInstrationE, 
 
 A " specific negligent act " within the meaning of Propo- 
 sition XXI. (a) is shown by evidence from which a reason- 
 able probability may be inferred, that the injury sued 
 on results from the absence of some precaution which 
 the defendant ought to have taken, and an indication 
 with reasonable certainty what particular precautions should 
 have been taken. (6) 
 
 Children get on a railway line. It is not shown how. They are 
 sitting upon the parapet of a small wooden hridge when a train comes 
 along, and, in passing, cuts off the leg of one of them, a child of three 
 and a half years old. There is no evidence of negligence to charge the 
 railway company, (c) 
 
 A child four and a half years old is found lying on the level crossing 
 of a railway, a foot having been cut away by a passing train. The 
 railway company have neglected their statutory duty to protect the 
 crossing. There is evidence of negligence to charge the railway 
 company, (d) 
 
 A man living near a railway crossing, and conversant with the 
 practice of signalling at the crossing, calls at the gatekeeper's lodge 
 on a December night. As he leaves the lodge to cross the line a train 
 is signalled. The gatekeeper does not mention this, and does not go on 
 the line and show a light, as is his duty. The man proceeds to cross 
 the line, is struck by the train and killed. There is a case of negligence 
 to go to a jury, (e) 
 
 (a) Ante, 78. 
 
 (6) See per Willes, J., Daniel v. Metropolitan By. Co., L. B. 3 0. P. 
 216 at 229 ; also per Pollock, B., Williams v. G. W. B. Co., L. B. 9 Ex. 
 157 at 161. 
 
 (c) Singleton v. Eastern Counties By. Co., 7 0. B. (N. S.) 287. 
 
 (d) Williams v. G. W. Ey. Co., L. B. 9 Ex. 157. 
 
 (e) Smith v. S.-E. Ey. Co., [1896] 1 Q. B. 178. The absence of a light 
 when there was accustomed to be one raised the probability that the 
 accident was caused thereby. Had the precaution of showing the light 
 been taken the company would have discharged their duty. The contention 
 (A the defendants was that the display of the light was for the purposes of 
 the company, and wag not in respect of a duty to foot passengers. Two of 
 
Presumptions 81 
 
 Chap. III. 
 PEOPOSITION XXIII — 
 
 He who tampers with the evidence bearinar on the Presumption 
 
 ° against 
 
 matter m issue has every presumption, arising from ™P^"||" "^ 
 defective testimony caused by his act, made against him. 
 
 Omnia prsesumuntur in odium spoliatoris. (a) 
 
 A chimney-sweeper's boy found a jewel and took it to a goldsmith's. lUustrations. . 
 The apprentice, under pretence of weighing it, took out the stones, and 
 calling to the master to let him know it came to three half-pence, the 
 master offered the boy the money. The boy refused to take it, and 
 demanded his jewel back. The apprentice then gave him back the 
 locket without the stones. Unless the master produces the stones as 
 against him they are to be presumed of the finest water, (b) 
 
 the judges in the Court of Appeal appear to hold, though with some cir- 
 cumlocution, that there was a duty to the public generally. Lord Esher, 
 M.K., considered the fact of duty or no duty immaterial. He considered 
 " there was evidence from which the jury might infer that he " (the man 
 killed) " knew that Judges (the gatekeeper) had to perform the services, 
 which I have mentioned, for the company, whenever a train was passing 
 over the crossing ; and that being so, they might on the evidence take the 
 view that under the circumstances it was not a want of reasonable care on 
 the part of the deceased to presume that, as Judges remained in his house, 
 no train was coming, and therefore he might go over the crossing in safety 
 without taking the precaution of looking up and down the line, or any 
 other such precaution as might otherwise be neoeseary." All this because 
 "the deceased man lived in the neighbourhood, and had been at the 
 crossing on previous occasions." On the hypothesis that there was a duty 
 to the general public this is undoubtedly so, and was so decided in North- 
 Bastern Ry. Co. v. Wanless, L. B. 7 H. L. 12. Assuming there is no duty 
 it is a very hard saying. The law on the point is clear : "If a person 
 undertakes to perform a voluntary act he is liable if he performs it 
 improperly, but not if he neglects to perform it. Such is the result of the 
 decision in the case of Coggs v. Bernard : " per Willes, J., Skelton v. London 
 and N.-W. Ey. Co., L. E. 2 C. P. 631 at 6b6; op. per Lord Esher, in 
 Loader v. London and India Docks Joint Committee, 8 T. L. E. 5 ; also 
 Woodley v. Metropolitan District Ry. Co., 2 Ex. D. 384. See too per Lord 
 Esher, M.R., in Le Lievre v. Gould, [1898] 1 Q. B. 491 at 497. Angus v. 
 London, Tilbury and Southend Ry. Co., 22 T. L. R. 222, is commented on 
 adversely to the decision ; Beven, Negligence (3rd ed.), 144, where Smith 
 V. S.-E. Ry. Co. also is examined; cp. Gray v. Haig, 20 Beav. 219.' 
 
 (a) Broom, Maxims (6th ed.), 892 ; Childrens v. Saxby, Vern. Case 203. 
 
 (6) Armory v. Delamirie, 1 Strange 504 ; 1 Sm. L. C. (11th ed.) 356. 
 " A spoliator must expect that every possible inference will be drawn against 
 him " : per Lord St. Leonards, Stanton v. Percival, 5 H. L. C. 257 at 281. 
 Cp. Lord Lyndhurst : " If a man withholds documents which are material 
 to be produced on an investigation everything will be presumed against 
 him " : Attwood v. Small, 6 CI. & P. at 412. 
 
 B.E.L. G 
 
82 
 
 Negligence 
 
 Chap. III. A workman sues for injury caused by the breaking of a cliain. The 
 
 defendant's manager has thrown away the broken parts. A presumption 
 
 of negh'gence is to be drawn from the act. (a) 
 
 PROPOSITION XX [V 
 
 Where there are facts from which negligence can 
 the case must be si 
 jury to say whether it ought to be inferred. 
 
 The inference 
 of negligence 
 
 Is for the jury, reasonably be inferred, the case must be submitted to the 
 
 Illustrations. A train drew up at a station so that the back part remains in a tunnql 
 
 where there is no platform. A short-sighted passenger in the back part 
 of the train gets out on hearing the name of the station called. He falls 
 on a heap of dry rubbish, and sustains injuries. The passengers are 
 subsequently called on to keep their seats, but not till another passenger 
 has got out. Hearing a groan he goes into the tunnel and finds the 
 deceased. The case must go to the jury. (J) 
 
 A railway carriage is filled with more passengers than its complement. 
 At the next station after the excessive number have entered, just as the 
 train is starting, the door of the carriage is opened by persons trying 
 to get in. A passenger thereupon partly rises and holds up his hand to 
 prevent more people entering. As the train moves the motion causes 
 the passenger to fall forward. He puts his hand on one of the hinges of 
 the carriage door to save himself. At the same moment a porter pushes 
 away the people and slams the door to, crushing the passenger's thumb. 
 Negligence is not shown, (c) 
 
 PROPOSITION XXV 
 Conflicting When evidence has been given from which negliffence 
 
 testimony for ° ° 
 
 tiiejury. may reasonably be inferred, and subsequently on behalf 
 
 (a) Eooney v. Allans, 10 R. 1224 at 1227. Thus, too, if one withholds 
 an agreement under which he is chargeable, it is presumed to have been 
 properly stamped till the contrary appears ; Crisp v. Anderson, 1 Stark 
 (N. P.) 35. 
 
 (6) Bridges v. North London By. Co., L. R. 7 h1 of L. 218, 
 
 (c) Metropolitan By. Co. v. Jackson, 8 App. Oas. 193. 
 
Province of Jury 83 
 
 of the other party to the suit other evidence is given Chap. III. 
 inconsistent with the first, the decision which is more 
 credible must rest with the jury; and the duty of the 
 judge is confined to pointing out to the jury the con- 
 siderations that should guide them in their findings, and 
 the consequences respectively attaching to them, (a) 
 
 A man is knocked down and killed by an express train while lawfully lUuatration. 
 crossing the line in a station. His widow sues the railway company in 
 respect of his death. The negligence alleged against the company is 
 default in the driver of the express train in not whistling on approaching 
 the station. It is a rale of the line for the express train always to whistle 
 on approaching the station. Two witnesses for the plaintiff say they did 
 not hear a whistle, and one that he did not hear a whistle but could not 
 swear that there was no whistling. On the part of the defendants the 
 driver of the train swears that he whistled twice. Nine other persons, 
 " including every person who could be supposed to have been material, 
 all of whom seem to be entirely unimpeached and unimpeachable," (&) 
 said they heard the whistling. The opinion of the jury must be taken on 
 the evidence, (c) 
 
 PROPOSITION XXVI 
 When the plaintiff by his evidence succeeds in bringing But not self- 
 
 destructive 
 
 home negligence to the defendant, but shows also that he testimony. 
 himself caused the accident through omitting to use 
 reasonable care, his case fails. 
 
 Plaintiff sues in respect of injuries received through being knocked mastration. 
 down and injured on a level crossing of a railway by a train. The plaintiff 
 by his evidence in effect states " that he himself caused the accident by 
 walking straight into a train which he might have seen." It is the judge's 
 duty to nonsuit, (d) 
 
 (a) As to the last clause, see per Lord O'Hagan, 3 App. Gas. at 1185. 
 
 (6) Per Lord Cairns, C, 3 App. Gas. at 1164. 
 
 (c) Dublin, Wioklow and Wexford By. Go. «. Slattery, 3 App. Gas. 
 1155. 
 
 . (d) Davey v. L, & S.-W. Ey. Co., 11 Q. B. D, 213; 12 Q. B. D. 70. 
 The quotation is from the judgment of Lord Coleridge, dJ., 11 Q. Bi Di at 
 
84 
 
 I^egligende 
 
 Chap. III. PROPOSITION XXVII 
 
 Nervoua shock. A negligent act producing nervous shock to the 
 plaintiff and, in natural and ordinary course, causing 
 actual physical injury (a) is a violation of a legal right 
 and actionable, even though no actual physical impact 
 occurs. 
 
 Illustrations. -A- man by way of practical joke represents to a woman that her 
 
 husband is seriously injured. The shock of the announcement is such 
 that the woman becomes seriously ill. Her illness is not in any way the 
 result of previous ill-health or weakness of constitution, but the natural 
 effect of the action. He is liable for the consequences of his action. (6) 
 
 A pregnant woman is in her house. Defendant so negligently drives 
 that his horse's head appears in the house and causes the woman such 
 a shock that she is prematurely confined. She has a right of action 
 against the defendant, (c) 
 
 217. The decision in this case hag been doubted ; but Lord Esher, M.R., 
 in Wakelin v. L. & S.-W. Ky. Co., [1896] 1 Q. B. 189, 191, says : " I do not 
 retract any part of the statement which I made in the ease of Davey v. 
 L. & S.-W. Ey. Co. as to the principle of law in relation to the proof of the 
 cause of action in cases of this kind." 
 
 la) See per Palles, C.B., Bell v. G. N. Ry. Co. of Ireland, L. E. Ir. 26 
 C. L. 428 at 441. 
 
 lb) Wilkinson v. Downton, [1897] 2 Q. B. 57. Beferences to the various 
 authorities on both sides of tlie discussion of this principle are to be found 
 in Wright, J.'s judgment, and in the note to the report. Victorian 
 Eailway Commissioners i). Coultas, 13 App. Gas. 222, is in any event 
 wrongly decided, since the facts proved show actual physical impact. See 
 per Holroyd, J., Edwards v. Melbourne and Metropolitan Board of Works, 
 19 V. L. E. (L.) 432 at 434. Cp. Eea v. Balmain New Perry Co., 17 
 N. S. W. E. (L.) 92. Wright, J.'s explanation of the ground of decision 
 in Jones v. Boyce, and that class of case (at 61), if it explains those he 
 mentions, cannot account for the decision in Conklin v. Thompson, 29 
 Barb. (N.Y.), 218, where a horse died from sudden fright, caused by the 
 explosion of a cracker between its legs. 
 
 (c) Dulieu V. White & Son, [1901] 2 K. B. 669. The shook must be the 
 result of something calculated to produce a fear of personal injury. Mere 
 violence to one's taste or feelings is not enough ; per Kennedy, J., oom- 
 m.enting on an unreported case. Smith v. Johnson, I.e. at 675. Philli- 
 more, J., at 684, doubts " whether as between people travelling on high- 
 ways there is any duty so carefully to conduct yourself or your vehicle as 
 not to frighten others." Plainly not — so stated. But there is a duty, e.g. 
 not to drive furiously. If in breach of this statutory duty (24 & 25 Vict, 
 c. 100, sec. 36) a man causes injury to another, why should a wrongful act 
 have different consequences on a highway than elsewhere ? Cp. Cooper v. 
 Caledonian Ey. Co., 4 F. 880. 
 
CHAPTER lY 
 
 OONTKIBUTOKY NeGI/IGENCE 
 
 PEOPOSITION I 
 
 CoNTEiBDTOBT negligence is negligence produced by such 
 want of care of the persoa suffering the injury as, in 
 co-operation with negligence of the person sought to be 
 charged, in natural and ordinary sequence (a) jointly 
 occasions (6) the injury complained of. 
 
 A man puts up an obstruction in the public street. Another, who is 
 riding furiously, (c) rides against it without observing it, and falls with 
 his horse and is very much hurt. He is guilty of contributory 
 negligence, (d) 
 
 (a) " If a man is lying drunk on the road another is not negligently to 
 drive over him. If that happened the drunkenness would have made the 
 man liable to the injury, but would not have oooasioned the injury" : per 
 Coleridge, J., Clayards v. Dethiok, 12 Q. B. 439 to 445. 
 
 (6) Contributory negligence may be regarded as a case of negligence, 
 where the inquiry is limited to ascertaining to which of two or more 
 persons who are guilty of negligence its final direction is due. In a case 
 where negligence is the gist of the action, the inquiry is (1) whether certain 
 facts can be proved or not ; and (2) whether when proved they show a 
 breach of duty occasioning damage to some person in natural and ordinary 
 sequence. 
 
 (c) " Violently " in the report. 
 
 (d) Butterfield v. Forrester, 11 East 60 ; 10 E. K. 433. See per Lord 
 Esher, M.B., in " The Bernina," 12 P. D. 58 at 70. In the same case, at 
 61, Lord Esher, M.B., enunciates the following two propositions : " (5) If, 
 although the plaintiff has himself or by his servants been guilty of negli- 
 gence, such negligence did not directly partly cause the accident, as if, for 
 example, the plaintiff or his servants having been negligent, the alleged 
 Tyrongdoers might by reasonable care have avoided the accident, the 
 plaintifi can maintain an action against the defendant ; (6) If the plaintiff 
 has been personally guilty of negligence which has partly directly caused, 
 the accident, he cannot maintain an action against any one.." 
 
86 Contributory Negligence 
 
 Chap IV. -^ haxge goes down a river with two men on board, one at the helm 
 _i- ' but with no look-out. A steamer, on her right side, and taking such 
 precautions as would have avoided a collision had the barge only taken 
 similar precautions, runs into the barge and causes injuries, for which 
 redress is sought. If the defendant can establish to the satisfaction of 
 the jury that by omitting to keep any look-out the plaintiff contributed 
 to the accident, he is entitled to a verdict, (a) 
 
 PROPOSITION II 
 
 constitnents. Where a defendant is shown to have been guilty of 
 
 negligence, and the plaintiff is also shown to have been 
 guilty of negligence in the same particular, the plaintiff 
 is still entitled to recover against the defendant unless 
 it further appears, either : 
 
 (1) That the plaintiff might have avoided the conse- 
 
 quences of the defendant's negligence by the 
 exercise of ordinary care ; (6) or 
 
 (2) that the defendant could not have avoided the 
 
 consequences of the plaintiff's negligence by the 
 exercise of ordinary care, (e) 
 
 (a) Tuft V. Warman, 2 C. B. (N. S.) 740 ; 5 0. B. (N. S.) 573. See per 
 Cockburn, O.J., 2 C. B. (N. S.) at 755. There is some slight verbal inac- 
 curacy in the expression of Gockbum, O.J.'s, opinion. He seems to assume 
 that if there is negligence it must be a proximate cause of the damage. 
 But this is not necessarily so. There must be (1) Evidence of negligence ;• 
 (2) Evidence of proximate causation ; both these questions are for the 
 judge to determine ; (3) The jury must say whether there is negligence, 
 and what its actual results are. See ante, 65. Post, 81. Beyndlda v. 
 T. Tilling, Ltd., 20 T. L. E. 57. 
 
 (6) See per Parke, B., Bridge v. The Grand Junction Ey. Co., 3 M. & W. 
 244. In Walton v. L., B. & S. 0. Ey. Co., H. & E. 424, at 429, Willes. J., 
 expresses the effect of Tuff v. Warman, 2 C. B. (N. S.) 740 ; 5 0. B. (N. S.) 
 573, to be that the use of the word "directly" before " contributing to " 
 the accident was not wrong as indicating the kind of negligence on the 
 part of the plaintiff which would disentitle him to recover against the 
 defendant. 
 
 (c) See per Lord Penzance, Eadley v. L. & N.-W. Ey. Co.. 1 App. Cas. 
 754 at 759. 
 
How Constituted 87 
 
 (1) A party having set a spring gun in his garden, of whioh he gives Chap IV 
 
 lio notice, the plaintiff enters the garden in pursuit of a strayed fowl, and 
 
 is wounded by the gun. He can recover in respect of his injury, (a) lUustrotions. 
 
 A contractor acting under ,the contract with a local sewer authority to 
 deepen a sewer in order to make a drain to a mews, digs a trench down 
 the only passage leading to the mews. This opening is not fenced. 
 Notice of it is given to the occupiers of stables in the mews. A cab 
 proprietor having stables there wishes to get one of his horses out, and 
 endeavours to lead him over the heap of earth and gravel thrown up on 
 one side of the trench to a- height of four feet. To do this is safer than 
 to lead the horse along the other side of the trench, which is much 
 narrower. The horse falls into the trench, and is strangled in an 
 endeavour to drag him out with ropes. The cab proprietor is entitled to 
 recover for his loss. (6) 
 
 , Two steamboats are making for the same pier. The one strikes tlie 
 other on the bow where the anchor is carried. A passenger is in the 
 same place, and ia injured through the fall of the anchor. Assuming 
 the anchor to be negligently placed, and the passenger wrongfully where 
 he is, he can still recover against the owner of the other steamboat ; for 
 he could not avoid the consequences of the defendant's negligence by the 
 exercise of ordinary care, (c) 
 
 (o) Bird V. Holbrook (1828), 4 Bing. 628 ; 29 B. E. 657. 
 
 (6) Clayards v. Dethick, 12 Q. B. 439. The negligence of the "defendants 
 was leaving the excavation without a proper fence. The question in dis- 
 pute was whether the plaintiff might have avoided the consequences of the 
 defendant's negligence by the exercise of ordinary care. This question 
 the jury answered in the plaintiff's favour. Bramwell, L.J., canvassed the 
 justness of this conclusion ; see Lax v. Corporation of Darlington, 5 Ex. 
 B. 28. at 34.; McMahon v. Field, 7 Q. B. D, 591 at 594 ; and Appendix to 
 Smith,' Negligence i(2nd ed.). He considered .that the only ground on 
 whioh the case could be sustained was that the risk was not an obvious 
 one. Bramwell, L.J.'s, dislike was due to his views on the application of 
 the maxim. Volenti non fit injuria ; as to which see Smith v. Baker, [1891] 
 A. 0. 325.; and ante, 32 and 37. It seems plaiu on principle that a person 
 is not to be paralyzed in the exercise of his legal rights of property merely 
 by a wrongdoer choosing to act negligently. If the danger from acting 
 appears merely possible and a safe event probable, the right to act even at 
 the peril of the wrongdoer would remain, provided the action was taken 
 with all ordinary care to avoid the consequences of the other party's 
 wrongful act. Clayards v. Dethick has been followed in Thompson v. 
 N.-B. By. Co., 2 B. & S. 106, see per Blackburn, J., at 118 ; and in Wyatt 
 V. G. W. By. Co., 6 B. & S. 709. 
 
 (c) Greenland v. Chaplain, 5 Ex. 243. This is contrary to the direction 
 given tp the jury. The learned judge at the trial, Pollock, C.B., was also 
 the judge who delivered the judgment of the Court, when he recanted his 
 earlier opinion and joined with the rest of the Court in holding that " a 
 person who is guilty of negligence, and thereby produces injury to another, 
 has no right to say, 'Part- of that mischief would not have arisen if you 
 
88 Contributory Negligence 
 
 Chap. IV. ^ passenger on an omnibus which was racing with another omnibus, 
 
 is injured by reason of the wheel of the omnibus on which the passenger 
 
 is not riding coming in contact with a projecting step of the omnibus, on 
 which the plaintiff is riding. The collision is occasioned in trying to 
 avoid a cart. Both omnibuses are being driven furiously, but it does not 
 appear that the one on which the passenger (the plaintiff) is could avoid 
 the swervmg of the other, while it is impossible for the driver to pull up. 
 The plaintiff is entitled to recover, (a) 
 
 (2) Plaintiff having fettered the forefeet of an ass belonging to him, 
 turns it upon a public highway. While the ass is grazing on the offside, 
 the defendant's waggon with a team of three horses coming down a slight 
 descent at " a smartish pace " runs against it and kills it. The 
 defendant could with ordinary care have avoided the consequence of the 
 plaintiff's negligence. He is therefore liable. (6) 
 
 A sailing collier vessel and a steamer come into collision on a dark 
 and rainy night in the Thames. The collier exhibited a light, but had 
 withdrawn it for two or three minutes before the accident, and she is not 
 visible to those on board the steamer till she is within two or three 
 lengths of the collier. In withdrawing the light the collier is in fault, 
 and directly contributes to the accident. The steamer is going at too 
 great a speed on so dark a night, but when the steamer comes within two 
 or three lengths of the collier it is impossible to avoid the accident, 
 though the preponderance of blame is with the steamer. The owner of 
 the collier sues the owner of the steamer. The steamer could not with 
 ordinary care avoid the consequence of the plaintiff',s negligence. The 
 plaintiff can recover, (c) 
 
 A wharfinger has a wharf to which is adjoined a jetty projecting at high 
 water into the waterway of the Thames. A vessel going up the river 
 
 yourself had not been guilty of some negligence.' I think that where the 
 negligence of the party injured did not in any degree contribute to the 
 immediate cause of the accident, such negligence ought not to be set up as 
 an answer to the action." It is true that had the passenger not been where 
 he ought not to have been the accident could not have happened. But the 
 passenger was under no duty to the owner of the other steamboat to stand 
 in any particular place ; while the owner of the other steamboat was under 
 a duty not to come into collision. Ante, 67. 
 
 (a) Eigby v. Hewitt (1850), 5 Ex. 240. At the time of this and the 
 next decision, reported in the same volume, Thorogood v. Bryan, 8 C. B. 
 115, was stiU held to lay down good law, that the passenger on an omnibus 
 was in the same situation as the owner of the omnibus on which he was a 
 passenger, so that if the driver's conduct was such as to disentitle the 
 owner to sue, the plaintiff could not recover. For the existing law see 
 Mills v. Armstrong (" The Berhiua "), 13 App. Gas. 1. ' 
 
 (6) Davies v. Mann, 10 M. & W. 546. 
 
 (c) Dowell V. General Steam Navigation Co., 5 B. & E. 195, 
 
How Constituted 89 
 
 with the flood tide, under tow by a steam tug, in avoiding some colliers in Chan IV. 
 
 the way strikes the jetty and does damage. The jetty is unlawfully in 
 
 the waterway. The vessel does not touch the wharf. No averment is 
 made that it is necessary to pass over the part of the river where the 
 jetty is, or that the river cannot be conveniently navigated without 
 coming in contact with the nuisance. The owner of the vessel is liable, 
 for he could (so far as appears) avoid the consequences of the plaintifl's 
 unlawful act in obstructing the waterway by the exercise of ordinary 
 care. (a) 
 
 A railway company take full trucks from the siding of a colliery 
 owner, and return empty trucks to the same place in ordinary course 
 of business. Over the siding is a bridge eight feet high. The railway 
 company's servants on one occasion run trucks on the siding after all the 
 colliery men have left work. The first of these trucks contains another 
 truck that has broken down. The joint height of the two is eleven feet. 
 Watchmen employed by the colliery owner know of the trucks being in 
 the siding, and of the probability of more being run on the siding, yet 
 nothing is done, and the broken-down truck is left. Subsequently more 
 trucks are run on the siding, and pu^ forward those already there. Some 
 extra resistance being felt, additional force is used, with the result that 
 the broken-down truck is thrust against the bridge and wrecks it. The 
 jury have to say whether ordinary care on the part of those responsible , 
 for pushing forward the second lot of trucks would not have made the 
 accident impossible, notwithstanding any previous negligence of the 
 colliery people in leaving the truck containing the broken truck on 
 the line. (6) 
 
 PEOPOSITION III 
 
 Where the direct and immediate cause of damage, is Defendant 
 
 cannot excuse 
 
 the fault of the defendant, contributory negligence cannot ^jJegta^J^l?' 
 be established merely by showing that, Lad the plaintiff ^^^p^^ 
 done something he did not do, the accident might not mtferentiy. 
 have happened. 
 
 (a) Dimes v. Petley (1850), 15 Q. B. 276. A private individual must 
 not abate a nuisance in a public highway of his own authority, unless it 
 does him a special injury : Mayor of Colchester v. Brooke, 7 Q. B. 339. 
 
 (6) Radley v. L. & N.-W. By. Co., 1 App. Gas. 754.. 
 
90 
 
 Contributory Negligence 
 
 Chap. IV. 
 
 Illustrations. 
 
 A sailing vessel is taken in tow by a steam-tug. After the tug begins 
 the towing services, the master of the sailing vessel leaves the deck. The 
 ttig, under the direction of the ship's pilot, pursues a dangerous course, 
 ■which, if persisted in, might probably have taken the vessel clear of a 
 dangerous bank. The ship's pilot failing to give further directions, the 
 tug starboarded her helm, causing the sailing vessel to go aground. At 
 the crisis the sailing vessel takes all proper steps. The failure to prevent 
 the tug entering on the dangerous course is not contributory ^negligence, (a) . 
 
 Two ships come into collision rounding a point. If one of them had 
 obeyed a rule of navigation she would have been a hundred yards distant 
 from the place of collision. In the existing circumstances the act of the 
 other running where she does is an act of rashness and negligence. The 
 collision is the result. The infringement of the rule of navigation on 
 the part of the first ship is not contributory negligence. (5) 
 
 A tug comes into collision with a steamer. The tug receives damage 
 from the anchor of the steamer, which is being carried in a position not 
 allowed under navigation rules. After the negligent act of the tug has 
 produced the risk of collision there is no time to shift the anchor. The 
 negligence as to the anchor is not contributory to the accident, and the 
 owners of the steamer are not responsible for the damage caused 
 thereby, (c) 
 
 Physical 
 incapacity. 
 
 PEOPOSITION IV 
 
 Physical incapacity of the iDJured person, although 
 conducing to the injury-^ does not of itself deprive such 
 person of his right to recover in respect of the injury. ■ 
 
 Illustrations. An intoxicated man is walking in the roadway. A man driving two 
 
 horses in a cart without reins, and approaching the man in the roadway 
 at a rapid pace, calls on him twice to get out of the way. From the state 
 
 (a) Spaight v. Tedoastle, 6 App. Oas. 217. ' In the report the facts are 
 complicated with a question of compulsory pilotage which is here omitted. 
 (h) Cayzer v. Carrpn Co., 9 App. Caa. 873. 
 
 (c) The Monte Rosa, [1893] P. 23. As the three last instances given 
 are Admiralty oases, it may he well to note that, so far aS the prinfiiple 
 they serve to illustrate goes, there is no distinction between the Admiralty 
 and the Comlnon Law; see per Lord Blackburn, Oayzer v. Carron Co., 
 9 App. Cas. 878 at 880.. 
 
.Instinctive Action 91 
 
 of intoxication in which he is, and the rapid pace of the horses, he is Ohap IV 
 unable to do so. The driver is guilty of manslaughter, (a) _1_ 
 
 A deaf man is injured through not hearing a man in a cart coming 
 behind him. He can recover, notwithstanding, if in approaching him the 
 man in the cart neglects precautions. (6) 
 
 PROPOSITION V 
 
 An instinctive effort to avoid danger, resulting in instinctive 
 ipjuJ^y OQ the part of one person, and occasioned by the 
 wrongful conduct of another, will not relieve the wrong- 
 doer from responsibility. 
 
 A coach proprietor neglects to provide a proper coupling-rein. The illustrations, 
 one supplied breaks. In terror, occasioned by the peril he is thus placed 
 in, one of the passengers jumps from the coach and breaks his leg. He 
 is not guilty of contributory negligence, (c) 
 
 A young woman is killed while endeavouring to drag her companion 
 out of danger from an approaching train. The railway company is guilty 
 of negligence. The young woman's act is not in law contributory, (d) 
 
 A little child three or four years old gets on a railway track. A train 
 is approaching in circumstances which a jury find to show negligence. 
 A man springs on the line, throws the child clear, but is killed. His act 
 is not contributory negligence, (e) 
 
 , (as). Rex v. William Walker, 1 C. & P. 320. If the intoxication actually 
 contributes to the injury the intoxicated man cannot recover : Maguire v. 
 Middlesex Ed. Co., 115 Mass. 239 at 240. 
 
 (6) M'Kechnie v. Couper, 24 Sc. L. B. 252. See too Anderson v. Black- 
 wood, 23 Sc. L. E. 227 ;, and Smith v. Browne, 28 L. S. Ir. 1. A news- 
 paper report of a case is sometimes cited in county courts in which a very 
 distinguished judge is reported to have said that a driver along a highway, 
 seeing a person in front of him, to fulfil his duty should act as if such 
 person were deaf. This is clearly against both authority and principle. 
 The standards of the law presume ordinary and normal capacity. So soon 
 as the driver has knowledge or means of knowledge of any infirmity or 
 abnormality a greater duty of caution arises, but not till then. 
 
 (c) Jones V. Boyce, 1 Stark. (N. P.) 498. Ante, 52. 
 
 (d) Woods V. Caledonian Ey. Co., 13 E. 1118. 
 
 (e) Eokert v. Long Island Ed. Co., 48 N. Y. 502. The ground for this ■ 
 conclusion has been much debated. If the man's act was instinctive it 
 niay.be brought, under the above principle. " The impulsive desire to save 
 human life when in peril is one of the most beneficial Instincts of 
 
92 Contributory Negligence 
 
 Chap. IV, A boy is working with an " elderly man." He sees a runaway waggon 
 
 — descending upon them and gets out of the way ; but attempts to avert 
 the danger to the life of his companion by trying to stop the waggon. 
 He is injured in his attempt. He sues his employers for their negligence 
 in letting the waggon be at large. Negligence is admitted. He is entitled 
 to recover, (a) 
 
 PROPOSITION VI 
 
 mrsona '^^^ ^^^^ 0^ ^^^ determining liability for case3 of con- 
 
 tributory negligence does not necessarily apply in the 
 case of " young persons," who are entitled to special con- 
 sideration. In their case, provided that the defendant is 
 shown to be in default, a " young person " is not precluded 
 from recovering, although guilty of conduct contributing 
 to the injury. (&) 
 
 humanity," says Oookburn, C.J. : — Soaramanga v. Stamp, 5 C, P. D. 
 295 at 304. If the act was meditated it comes within the principle 
 enunciated by Lord Maonaghten in Jenoure v. Delmege, [1891] A. C. 73 at 
 77 : " To protect those who are not able to protect themselves is a duty 
 which every one owes to society." While, then, the man was doing his 
 duty the railway company was in default, and estopped from saying they 
 had no duty to him. Jenoure v. Delmege is distinguished in Stevens v. 
 M'Kenzie, 25 V. L. R. 115. In Cook v. Johnson, 55 Am. E. 703, one injured 
 while exposing himself to danger in order to save his property was held 
 guilty of contributory negligence ; this is a fortiori if the property were 
 not his own. In Pennsylvania Co. v. Langendorf, 29 Am. St. R. 553, the 
 Court acted on the view that the plaintifi in endeavouring to save life was 
 in the performance of a legal act while the wrongdoer was in default. Cp, 
 Roebuck v. Norwegian Titanic Co., 1 T. L. R. 117. 
 
 (a) Wilkinson v. Kinneil Cannel & Coking Coal Co., 24 R. 1001. The 
 Scottish judges were divided, four against' three. Cp. Bees v. Thomas, 
 [1899] 1 Q. B. 1015, under the Workmen's Compensation Act, 1897. The 
 cases are collected, Labatt, Master and Servant, 935. 
 
 (6) See per Ohannell, B., Gardner v. Grace, 1 P. & F. 359. Cp. Martin 
 V. Wards, 14 B. 814, with DufE v. National Telephone Co., 16 B. 675, per the 
 Lord President, at 676. There is difB.culty in defining "young person" 
 within the meaning of the proposition in the text. The English cases do 
 not appear to afiord any plain rule. In Crocker v. Banks, 4 T. L. R. 324, 
 the Court of Appeal seem to have regarded a girl of seventeen, described as 
 " an expert hand " at her business, as entitled to special protection. In 
 Grizzle v. Frost, 3 F. & F. 622, the age of the " young person" injured was 
 sixteen. Perhaps to lay down an inflexible rule is impossible. The govern- 
 ing considerations for the determination of the matter are thus stated in 
 the United States : (1) Primd facie an infant under the age of ten years has 
 not sufl&oient capacity to be sensible of danger, or to have the power to 
 
Young People 93 
 
 A cart is left unattended. A child of seven gets upon the cart to _, »« 
 play. Another child leads the horse on. The child on the cart is thrown ^' 
 
 down and hurt. There is negligence in the owner of the cart. The illustrations. 
 child does as is to be expected from a child of its age. The conduct of 
 the child is not contributory to the accident, (a) 
 
 On one side of a street there is a footpath, on the other side cellars 
 but no footpath, though the public has a right of passage. The occupier 
 of a house and cellar on this side takes off the flap or cover of his cellar, 
 and places it against his wall nearly upright, so that it can easily be pulled 
 over. The flap is pulled over by a child of seven years old by playing on 
 it and jumping from it, when it falls and hurts him severely. The flap is 
 placed negligently, but the child's act is held contributory negligence. (J) 
 
 avoid it. The presumption under this age will continue till proof showing 
 the contrary. (2) Prima fade an infant upwards of the age of fourteen 
 years has suf&oient capacity to be sensible of danger and to have the power 
 to avoid it. This proposition will continue till overthrown by clear proof 
 of the absence of the capacity thus presumed. (3) An infant between the 
 age of ten and fourteen must be shown to have capacity in the particular 
 instance to understand and avoid danger. (4) The law fixes the 
 age of fourteen as the convenient point at which the presumption of 
 capacity is changed, and lays upon the infant the burden of showing his 
 personal want of the faculties usual at that age. See Bhodes v.. Georgia 
 Kd. Co., 20 Am. St. B. 362 ; Kehler v. Sohwenk, 144 Pa. St. 348, 27 Am. 
 St. E. 633 : cp. Sharp v. Pathhead Spinning Co., 12 E. 574. In Grant v. 
 Caledonian Ey. Co., 9 Macph. 258, it was held that a child of six may 
 contribute by negligence to an injury to itself ; in M'Gregor v. Eoss, 10 E. 
 725, a child of four was held not capable of contributing. In Eobinson v. 
 W. H. Smith, 17 T. L. E. 423, the " child " was twelve^ the M.E. said : " It 
 was not sufficient to say that the child knew of the danger, but there 
 was a duty on the master to order the child what to do in order to keep 
 out of the danger." The duty of a defendant where a " young person " 
 within the rule is concerned is to be free from fault. Ante, 39. 
 
 (a) Lynch v. Nurdin, 1 Q. B. 29 ; op. Lay v. Midland Ey. Co., 84 L. T. 
 (N. S.) 30. Lord Bsher, M.B.'s, remark as to Lynch v. Nurdin, in Mann 
 V. Ward, 8 T. L. B. 699, was perhaps a slip. The case of Mangan v. Atter- 
 ton was probably the one present to his lordship's mind. See Clark v. 
 Chambers, 3 Q. B. D. 327 at 338 ; Union Pacific By. Co. v. McDonald, 152 
 U.S. (45 Davis) 262, per Harlan, J., at 270 ; and Smith, L.J., in Harrold v. 
 Watney, [1898] 2 Q. B. 320 at 322. The decision here is on the ground 
 that the rotten fence abutting on the highway " constituted a danger to 
 those using the highway — that is, it constituted a nuisance ; " per Williams, 
 L.J., at 324. However, see Lygo v. Newbold, 9 Ex. 302, per Alderson, B., 
 at 305. 
 
 (6) Hughes V. Maofie, 2 H. & C. 744. In Pindlay v. Angus, 14 B. 312, 
 a shutter fastened by a bolt was meddled with by children, and fell, 
 injuring one. The owner of the shutter was held liable, though the Court 
 were of opinion that the protection afforded was enough " if not tampered 
 with in respect of any ordinary pressure that might be exerted." In'Dufi 
 V. National Telephone Co., 16 B. 675, the owner of a barrow had left it in 
 a lane in a town. Children began to play with it, and one of them was 
 injured. On the assumption that leaving the barrow unattended was in 
 the circumstances not negligence, the owner of it was not liable for the 
 
94: Contributwy Negligence 
 
 Chap. IV. -^ machiae for crushing oil-cake is left standing in the street and 
 
 without superintendence. The cogs which work the crushing rollers are 
 
 exposed, and the handle is not secured. By direction of his brother a 
 child of four years old who is passing puts his fingers in the cogs and gets 
 them crushed. An action is held not maintainable, (a) 
 
 A cellar abutting on a highway is used for scene painting. The area 
 over the cellar is open, and there is a protecting bar round the opening. 
 A little girl is leaning against the rail looking down into the cellar at the 
 scene painters at their work, falls into the area, and is injured through the 
 giving way of the railing. The child's conduct does not disentitle her to 
 recover in a case where the defendants are at fault in not having a 
 sufficiently strong railing, (i) 
 
 Merchants receive their goods into their warehouse through an aperture 
 in the wall, which is three feet six inches from the ground. About two 
 feet from the outer edge of the sill inside the aperture there is a lift. On 
 the wall outside is a notice to the effect that the place is dangerous. A 
 child eight years old climbs up on the sill, and leaning forward to see 
 what is inside is struck on the head and injured by the descending lift. 
 The merchants are not in default, and the child cannot maintain an 
 action, (c) 
 
 A street roller with reversible shafts is left standing in a street secured 
 by a strong rope which would have held it immovable. Two children 
 meddle with it. One cuts the rope, and the fingers of the others are 
 crushed in the reversible shaft. Those responsible for the roller have 
 
 accident. The legality of leaving a barrow unattended must depend on the 
 circumstances; see lUidge v. Goodwin, 5 C. & P. 190; and per Smith J., 
 Tolhausen v. Davies, 57 L. J. Q. B. 392. Innes 'i;. Fife Coal Co., Ltd., 3 
 ]?. 835, is a " strong" decision even for a Scottish Court. It is difScult to 
 understand how the plaintiff could recover if he were guilty of negligence, 
 or how the defendants were liable if they were not. Horsburgh v. Sheaeh, 
 3 F. 268, is in line with the best authorities, English and American. See 
 Boss V. Keith, 16 B. 86 and ante, 71. 
 
 (a) Mangan v. Atterton, L. B. 1 Ex. 239; op. Campbell v. Ord, 1 B. 
 149. Mangan v. Atterton as it stands is in decided oonfliot with other 
 cases. See Clark v. Chambers, supra, and Wharton, Negligence (2nd ed.), 
 § 320. The decision may. perhaps be supported on the ground that it 
 was market day when the accident happened, and that the place where 
 the machine was exposed was within the limits of the market, and conse- 
 quently the defendant was not in fault. 
 
 (6) Jewson v. Gatti, 2 T. L. B. 411. This is a decision of the Court of 
 Appeal. A ground of the decision was that the painting was a positive 
 allurement to children. Cp. Harrold v. Watney, [1898] 2 Q. B. 320. 
 
 (c) Stiefsohn v. Brook, 5 T. L. B, 684; a ruling of Fry, L.J.'s. 
 
Infant's Guardian 96 
 
 beea guilty of no negligence, aad therefore the child has no right of Chap. IV 
 action, (a) ^' 
 
 Children trespass. They get on to a siding of a railway company, 
 through a gap in a hedge which it is the statutory duty of the railway 
 company to keep "good and sufficient" as an approach to a bridge. 
 They then go down a slope to a turntable, which they set in motion, 
 one of them riding on it. He is injured. There is no ciusal connection 
 to render them liable between the breach of duty of the railway company 
 and the accident. As regards the accident, they are not in default. (6) 
 
 PEOPOSITION VII 
 Where an infant in arms, or a person in charge of Pefson in 
 
 . . ^ charge of 
 
 anothpr Unable to protect himself, is injured by reason of *!l°'¥rp^"™ 
 the negligence of the person, in whose charge he is, co- "^sugent. 
 operating with the negligence of some third person, in 
 such circurnstances that the negligence of the person in 
 charge amounts to contributory negligence, the infant 
 in arms or person in charge has no right of action in 
 respect of the injury caused to him against such third 
 person, (c) 
 
 A woman carrying an infant of five, years old took a half-ticket for illustration, 
 the child and a ticket for herself to travel by railway. It is necessary to 
 cross the line on the level to get to the departure platform. The woman 
 with the infant attempts to cross the line, but she is knocked down by a 
 
 (a) Bailey v. Neal, 5 T, L. B. 20 ; M'Gregor v. Boss, 10 B. 725 ; Slade 
 V. Victorian Bailways Commissioners, 15 Vict. L. E. 190. 
 
 (6) Oooke V. Midland G. W. By. Co. of Ireland, [1908] 2 I. E. 242. 
 
 (c) See particularly the judgments of Pollock, G.B., Williams and 
 Crowder, JJ., and Bramwell, B., in the Ex. Ch. in Waite v. N.-E. 
 By. Co., B. B. & E., at 733 et seqq. The decision in this case may turn on 
 the existence of the contractual relation, and probably does. The company 
 were entitled to assume proper care would be taken with the child when 
 they issued the ticket. There does not seem any objection against ah 
 infant recovering against a wrongdoer, whose breach of duty is in con- 
 junction with wrong-doing on the part of its nurse. The child could 
 clearly maintain an action for negligence against the nurse ; then why not 
 against the other wrongdoer ? ■» 
 
Chap. IV. 
 
 96 
 
 Contributory Negligence 
 
 passing train and killed, while the infant is severely injured. The rail- 
 way company are guilty of negligence. In attempting to cross as she did 
 the woman is guilty of negligence, without which the accident would not 
 have happened ; and had she acted with ordinary prudence, neither she 
 nor the infant would have suffered. The infant is in no respect negligent. 
 The infant has no right of action against the railway company, (a) 
 
 PKOPOSITION VIII 
 
 Extraneous 
 perils. 
 
 One engaged in work does not undertake the risk of 
 any negligence in addition to the intrinsic and necessary 
 perils of the work, and is not guilty of contributory 
 negligence if he is injured through failure to make pro- 
 vision against perils extraneous and non-essential to his 
 employment. 
 
 ninstrations. " A labourer is not to be blamed or barred from recovering damages 
 
 for injuries sustained by him through his employer's fault because he has 
 not provided against a possible defect in his employer's machinery or 
 tackle of which he could not be expected to be aware." (6) 
 
 A workman is employed drilling holes in a rock. Overhead are men 
 working at a crane lifting stones, and of whose employment the workman 
 is aware. At times stones are swung over his head without warning. 
 One falls and injures him. He is not necessarily guilty of contributory 
 negligence, (c) 
 
 A boy four years old goes with his sister to a house where a few stejys 
 protected on either side by railings lead to the door. One of the railings 
 is broken. Hopes have been interlaced to protect the gap made, but are 
 worn away. The sister goes into the house, telling the child to stop at 
 
 (a) Waite v. N.-E. Ey. Co., E.- B. & E. 719. The decision suggests the 
 identity in principle between a helpless person in charge of another and a 
 chattel injured while in charge of a person not the owner, by whose fault, 
 in conjunction with that of another, injury ds done to it. In Meux v. 
 G. E. Ry. Co., [1895] 9 Q. B. 387, the railway company were negligent, but 
 not the bailee. 
 
 (b) Per Lord Young, Eooney v. Allans, 10 E. 1224 at 1228. 
 
 (c) Smith V. Baker, [1891] A. C. 326. 
 
Onus of Proof 97 
 
 the bottom of the steps. The child goes up the stops, falls through the Chap IV 
 gap and is injured. The owner of the house is not liable, (a) — — 
 
 PEOPOSITION IX 
 
 The passenger on a vehicle is not identified with the Mentacation. 
 servants in charge of the vehicle, so as to enable another 
 person, whose servants have been guilty of negligence 
 causing damage to the passenger, to defend himself by 
 the allegation of contributory negligence on the part of 
 the person injured. 
 
 A man gets out of an omnibus while the omnibus is in motion. The illustrations. 
 driver is negligent in not drawing up. Another omnibus coming up very 
 fast behind, the man is unable to get out of the way and is killed. He is 
 not identified with the negligence of the driver of the omnibus on which 
 he was a passenger, (b) 
 
 (a) Burchell v. Hickisson, SO L. J. Q. B. 101. The ground of this 
 decision is that the owner of the house never invited such a person as 
 the plaintiff to oome unless he was taken care of ; and if he was in charge 
 of others there was no concealed danger. If the child was brought, it was 
 the negligence in leaving him which contributed to the accident. See 
 possible limitations to this noted under Proposition VI., ante, 92,- especially 
 Jewson V. Gatti, 2 T. L. B. 441. In an American case, Schmidt v. Kansas 
 City Distilling Co., 59 Am. E. 16, Henry, C.J., says an ovmer of property 
 must not place temptations upon it to allure any one to a dangerous place 
 upon his premises, nor yet place dangerous things so near a pubUo street 
 or highway as to endanger persons thereon, and the fact that young children 
 are in the habit of resorting to the neighbourhood is an element in deter- 
 mining what is alluring and what safeguards should be adopted. If a child 
 is in a place where it should not be permitted to be without being in the 
 charge of some responsible elder, the negligence of the person, in whose 
 custody the child should be, is imputed to the child so as to bar recovery. 
 As regards children playing in the public streets, different considerations 
 apply. " Very young children must go to school or run messages ; and 
 they are accustomed to play about the doors unattended, for the mass of 
 people cannot afiord to furnish them with a nurse. The presence of 
 children on the public streets not old enough to be able to take care of 
 themselves is one of the risks which the drivers of wheeled vehicles require 
 
 . to have in view: " Guthrie Smith, Law of Damages (2nd ed.), 145, 
 citing Martin v. Wards, 14 R. 814 ; and Erasers v. Edinburgh Tramway 
 Co., 10 E. 264. See also Haughton v. North British Ry. Co., 20 E. 113, 
 ante, 72. 
 
 (b) Thorogood v. Bryan, 8 C. B. 115, overruled by "The Bernina" 
 sub nom. Mills v. Armstrong, 13 App. Cas. 1 ; cp. Pike v. London General 
 Omnibus Co., 8 T. L. E. 164. 
 
 15.E.L. II 
 
98 Contributory Negligence 
 
 , Chap. IV. Ships are in collision through fault common to the crews of both. 
 - — Two people on board one ship, to whom no participation in the negligence 
 can be imputed, are injured. Their representatives can maintain an 
 action against the owhers of the other ship, (a) 
 
 PKOPOSITION X 
 
 ^'"'«- The onus of proving contributory negligence is on the 
 
 defendant. In the absence of any such evidence the 
 plaintiff is not bound to prove the negative in order to 
 entitle him to a verdict. (6) 
 
 Illustration. A man is found dead on a railway line. Nothing is known how he 
 
 got there. To enable his widow to recover it is only necessary for her 
 to show negligence of the company. If they rely on contributory 
 negligence as a defence they must prove it. (c) 
 
 PEOPOSITION XI 
 
 To justify the judge in leaving the case to the jury, 
 notwithstanding the voluntary act of the injured person 
 which contributes to the injury complained of, the circum- 
 stances must be such as either — 
 
 Firstly, make the question whether that act is 
 negligent (either per se, or having regard to the conduct 
 of the defendants inducing or affecting it), a question of 
 fact; or, 
 
 (a) " The Bernina," I.e. 
 
 (b) See per Lord Watson in Wakelin v. L. & S.-W. Ey. Oo. 12 Add 
 Cas. 41 at 48. ' '' '^'^' 
 
 (c) Wakeliu J-. L & S.-W. By. Co., 12 App. Cas. 41. Another pro- 
 poBition lUustrated by this case is that where the plaiutifE elves evidence 
 of a state of things equally consistent with the wrong being caused hv his 
 own neghgence or by the negUgence of the defendant, he has not proved 
 his case. Pom ret v. Lanes & Y. Ry. Co., [1903] 2 K. B. 718 ; Mitchell v. 
 Glamorgan Coal Co., 23 T. L. R. 588; Reynolds v TilUnff 20 T T S fST- 
 Butterly v. Mayor, &c., of Drogheda, [1907] 2 I. R. 134. ■ ^- J^- oi , 
 
Bitty to Non-suit 99 
 
 Secondly, render reasonable an inference of fact that Chap. IV. 
 the defendants, by using due care, could have obviated 
 the consequences of the plaintiff's negligence. 
 
 If the case is so clear that the determination of those 
 two questions involves no inference of fact, it is for the 
 judge and not the jury, (a) 
 
 (a) Per Palles, C.B., Coyle v. G. N. Ey. Co. o£ Ireland, 20 L. R. Ir. 
 409, 418 ; adopted in the Conunisaioner of Kailways v. Leahy, 2 C. L. R. 
 (Australia) 54. 
 
CHAPTER V 
 
 Lord Campbell's Act (a) 
 
 (9 & 10 Vict. c. 93, amended by 27 & 28 Viot. o. 95.) 
 
 PEOPOSITION I 
 
 At common law an action for damages caused by the ^°™™° ^^"^ 
 homicide of a human being cannot be maintained. 
 
 Actio personalis moritur cum 'persona, (h) 
 
 (a) The Legislature by the Short Titles Act, 1896 (59 & 60 Viot. c. 14), 
 "Ail Act to facilitate the citation of sundry Acts of Parliament," has 
 enacted that " without prejudice to any other mode of citation " this Act 
 may be cited by the short title of the Fatal Accidents Act, 1846. 
 
 (6) Noy, Max. 14. For the history of this maxim, see Phillips v. 
 Homfray, 24 Ch. D. 439, per Bowen, L.J., at 453. The law in Scotland is 
 not the same as that of England on this matter ; see Wood v. Gray, [1892] 
 A. C. 576. The rule is that wherever one person commits a wrong or tort 
 against the property of another with the result of benefiting his own 
 estate, the law will impose at the election of the injured party a con- 
 tractual obligation on the wrongdoer to pay the injured party the value of 
 the property appropriated. In the old pleading this was sued for in the 
 form of indebitatus assumpsit. But this will not lie for a merely destructive 
 wrong. It is essential that there should be an enrichment of the wrong- 
 doer's estate. The gist of the action is not the loss of the plaintiff but the 
 gain of the defendant. Lightly v. Clouston, 1 Taunt. 112; Cooper v. 
 Cooper, 147 Mass. 870. See Keener, Quasi-Oontraots, 205, of which the 
 inception was probably two articles on Waiver of Tort, Harv., Law Rev., 
 vi., 223, and 269. An action of tort is immediately superseded if one of 
 the parties dies before verdict or other finding of the issues of fact, and 
 there is no power by which the personal representatives can continue it ; 
 Bowker v. Evans, 25 Q. B. D. 565 ; Flinn v. Perkins, 32 L. J. Q. B. 10. 
 There is an exception to this when a statute oasts a duty on one person 
 towards another, then the action for the breach of such statutory duty 
 survives : Peebles v. Oswaldtwistle Urban District Council, [1896] 2 Q. B. 
 159. In re O'Donovan v. Cameron, Swan & Co., [1901] 2 1. B. 633, is a 
 decision of the Court of Appeal in Ireland which conflicts with this, which 
 the Court of Appeal in Darlington v. Boscoe, [1907] 1 K. B. 219, dis- 
 tinguished, and had it been necessary would probably have dissented from. 
 See the last par. of Cozens-Hardy, L.J.'s judgment at 229. Where money 
 
102 
 
 Lord Campbell's Act 
 
 Chap. V. 
 
 ". If a man beat the servant of J. S. so that he dies of that battery, 
 the master shall not have an action against the other for the battery or 
 lUustrations. ^.j^g ^^^ ^f service." (a) 
 
 In an action to recover for loss of a wife's services, Lord Ellen- 
 borough, C.J., directed the jury "that the damages as to the plaintiff's 
 wife must stop with the period of her existence." (5) 
 
 The plaintiff's daughter is run over by a waggon and horses driven 
 by defendant's servant and killed on the spot. No action is maintainable 
 for the death, (c) 
 
 The text of Lord Campbell's Act, 9 & 10 Vict. c. 93 
 is as follows : — {d) 
 
 An Act for Compensating the families of Persons Killed 
 hy Accident. [26th August, 1846. 
 
 An action to bs 
 maintainable 
 against any 
 Person causing 
 Death through 
 Keglect. &c., 
 notwithstand- 
 ing the death 
 of the Person 
 injured. 
 
 Wheeeas no action at law is now maintainable against 
 a person who by his wrongful act, neglect, or default may 
 have caused the death of another person, and it is often- 
 times right and expedient that the wrongdoer in such 
 case should be answerable in damages for the injury so 
 caused by him. (e) Whensoever the death of a person shall 
 
 has been paid into Court without denial of liability and either of the 
 parties dies, the Court has a discretion to order to whom the same should 
 be paid out : Maxwell v. Wolseley (Viscount), [1907] 1 K. B. 274 ; E. S. C. 
 1883. Order XVII. rr. 1 and 2. 
 
 (a) Per Tanfield, J., Higgins v. Butcher, Yelv. 87 ; Noy. 18. 
 
 (6) Baker v. Bolton, 1 Camp. 493. The whole of the authorities are 
 noticed in " The Harrisburg," 119 U. S. (12 Davis) 199. 
 
 (c) Osborn v. Gillett, L. R. 8 Ex. 88, followed in Clark v. London General 
 Omnibus Co., [1906] 2 K. B. 648. See the argument of Sir John Camp- 
 bell, A.G., in Duncan v. Pindlater, 6 CI. & P. 894. Salmond, Torts, 834. 
 
 (d) Only the unrepealed portion of Lord Campbell's Act and its 
 amending Act are set out ; see the Statute Law Bevision Act, 1875 (38 & 
 39 Vict. c. 66), the Statute Law Revision Act, 1891 (54 & 55 Vict. o. 67), 
 and the Statute Law Revision Act, 1893 (55 Vict. c. 14). 
 
 (e) See the use made by Pigott, B., of this preamble in Osborn v. 
 Gillett, L. R. 8 Ex. 88 at 92 ; and by Kelly, C.B., at 100. 
 
Lord CampbelVs Act 103 
 
 be caused by a wrongful act, neglect, or default, (a) and the Chap. V. 
 act, neglect, or default is such as would (if death had not 
 ensued) (&) haye entitled the party injured to maintain an 
 action and recover damages in respect thereof, then and 
 in every such case the person who would have been liable 
 if death had not ensued shall be liable to an action 
 for damages, notwithstanding the death of the person 
 injured, (c) and although the death shall have been 
 
 (a) No peculiarity arises under Lord Campbell's Act as to the nature of 
 the act, neglect or default which will give rise to an action. The law as to 
 this is the same as at common law, where death has not followed the 
 infliction of injury. 
 
 (6) See per Lord Blackburn, Seward v. " Vera Cruz," 10 App. Cas. 59 
 at 70. Davidsson v. Hill, [1901] 2 K. B. 606, overruling Adam v. British 
 and Foreign Steamship Co., Ltd., [1898] 2 Q. B. 430, decided that Lord 
 Campbell's Acts apply as well for the benefit of a foreigner, in respect of 
 the death of a foreigner out of the jurisdiction, as for a British adminis- 
 trator of a British subject. Cp. Pisani v. Lawson (1839), 6 Bing. N. 0. 90, 
 per Tindal, C.J., 95 : " So long ago as the 19th of Henry VIII., I read in a 
 case reported in Dyer, page 2, that an alien living in Prance having 
 brought a writ of debt, and the defendant having demanded judgment if 
 he was bound to answer, the plaintiff being out of the King's dominions, 
 this Court held that the plea furnished no answer to the action." After 
 citing Tirlot v. Morris, 1 Buls. 184, where Yelverton, J., said: "that an 
 alien friend may well have here all actions personals whatsoever," 
 Tindal, C.J., thus concludes : " It would present our laws in a very 
 unfavourable light to strangers if they were to be told that they can 
 obtain no redress for an injury inflicted on them in this country, whereas 
 if they come here but for an instant they owe such obedience to those laws 
 as to become liable for any wrong done by themselves." The Circe, 
 [1906] P. 1. 
 
 (c) " Lord Campbell's Act gives a new cause of action clearly, and does 
 not merely remove the operation of the maxim. Actio personalis moritur 
 cum persona, because the action is given in substance, not to the person 
 representing in point of estate the deceased man, who would naturally 
 represent him as to all his own rights of action which could survive, but 
 to his wife and children, no doubt suing in point of form in the name of 
 his executor. And not only so, but the action is not an aption he could 
 have brought if he had survived the accident, for that would have been an 
 action for such injury as he had sustained during his lifetime, but death 
 is essentially the cause of the action : " per Lord Selbourne, C, Seward v. 
 " Vera Cruz," 10 App. Cas. 59 at 67. Notwithstanding this, the survivors 
 may be altogether defeated of their right of action by the conduct of the 
 deceased, as, for instance, by his contributory negligence : Tucker v. 
 Chaplin, 2 C. & K. 730 ; or by the deceased accepting a sum in full dis- 
 charge : Bead v. G. B. Ey. Co., L. R. 3 Q. B. 555 ; or by the right of action 
 of the injured person had he survived being barred by the Public Authorities 
 Protection Act, 1893 : Williams v. Mersey Docks and Harbout Board, [1905] 
 1 K. B. 804. Post, 246. In A.-G. v. Brunning (1860), 8 H. L. C. 243 at 255, 
 Lord Campbell, 0., says; "It is then urged that probate, is only to be 
 
104 
 
 Lord Campbell's Act 
 
 Qhap. V. 
 
 Action to 1)6 for 
 the benefit of 
 certain rela- 
 tions, and shall 
 be brougiit by 
 and in tbe 
 name of 
 execntor or 
 administrator 
 of the deceased. 
 
 as 
 
 amount iu law to 
 
 caused under such circumstances 
 felony, (a) 
 
 II. Every such action shall be for the benefit of the 
 wife,(&) husband, parent, (c) and child (c^) of the person 
 whose death shall have been so caused, (e) and shall be 
 brought by and in the name of the executor or adminis- 
 trator of the person deceased; and in every such action 
 the jury may give (/) such damages as they may think 
 
 granted of that which is of definite value ; that the executor could have 
 put no definite value on his right to sue upon the contract ; and that an 
 executor might as well be called upon to include in his return of the estate 
 and effects of the testator the value of his hope of recovering damages 
 under a recent Act of Parliament, if the testator had come to his death by 
 the negligence of a railway company. But this is only a renewal of the 
 objection that the only course for the executor to take was to sue for 
 damages in respect of the breach of contract waiving his remedy by bill 
 for specific performance, or by petition by which the exact amount of the 
 purchase-money might have been recovered. The sum to be recovered in 
 case of death by negligence certainly would not be subject to probate duty, 
 for it is not made part of the estate of the deceased ; and, on the contrary, 
 the Act of Parliament directs it to be apportioned among the members of 
 the family of the deceased according to the pecuniary loss which they are 
 supposed respectively to have sufiered from the bereavement. Post, 109. 
 
 (a) Cp. Appleby v. Franklin, 17 Q. B. D. 93. 
 
 (6) A wife living apart from her husband in adultery cannot recover 
 imder this provision : Stimpson 'O. Wood, 4 T. L. R. 589 ; 36 W. B. 784. 
 [Query : Whether evidence of her husband's willingness to take her back 
 would entitle her to maintain the action.] 
 
 (c) See s. 5. In Steele v. G. N. By. Co., 26 L. B. Ir. 96, an applica- 
 tion by the father and mother of the deceased for liberty to appear by 
 counsel and solicitor at the trial of an action by the deceased's widow and 
 executrix, and tender evidence as to the amount of their shares of the 
 money to be awarded as damages in the action, or iu default might be made 
 parties thereto, was refused. 
 
 (d) See s. 5. A child en ventre sa mire was held to be entitled to be 
 reckoned amongst those entitled to an apportionment of money recovered : 
 " The George and Richard," L. B. 3 A. & E. 466 ; Nurse v. Yerworth, 3 
 Swan. 608 (App.) ; Villar v. Gilbey, [1907] A. C. 139 ; Williams v. Ocean 
 Coal Co., Ltd. [1907], 2 K. B. 422. A bastard cannot maintain the action : 
 Dickinson v. N.-E. By. Co., 2 H. & C. 735. 
 
 (e) It is not necessary to negative the existence of any relatives of the 
 deceased other than those named in the writ ; Barnes v. Ward, 9 C. B. 392 
 at 398. 
 
 (/) In The Pranconia, 2 P. D. 168, Bramwell, L.J., observes at 171: 
 " As to the words ' the jury may give,' that might possibly be held to mean 
 jury where there was a jury, and Court where there was not ; I do not say 
 it could be, but whether or no, we are of opinion that under that section it 
 must be a jury who find and direct the division into shares." " Would 
 
Lord Campbell's Act 105 
 
 proportioned to the injury resulting from such death to Chap, V. 
 the parties respectively for whom and for whose benefit 
 such action shall be brought, (a) and the amount so 
 recovered, after deducting the costs not recovered from 
 the defendant, shall be divided amongst the before- 
 mentioned parties in such shares as the jury by their 
 verdict shall find and direct. (6) 
 
 an action lie in the County Court witliout a jury ? No ; the jury is 
 essential." 
 
 (a) Under Lord Campbell's Act there is no limit to the damages which 
 may be recovered. Under the Employers Liability Act, 1880, see. 3, the 
 amount of compensation recoverable is limited 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 ; " see Noel v. 
 Redruth Foundry Co., [1896] 1 Q. B. 453 ; :post, 239. Under the Work- 
 men's Compensation Act, 1906 Sch. I., compensation "not exceeding in 
 any case three hundred pounds," if estimated on three years' earnings, 
 or, in the alternative, of a sum of one hundred and fifty pounds may be 
 given. 
 
 (6) The compensation awarded by the jury must be given in accordance 
 with the legal principles embodied in Propositions II., III., IV., V., VI. 
 and VII. Post, 109 — 115. Funeral expenses cannot be taken into account : 
 Dalton V. S.-E. Ey. Co., 4 C. B. (N. S.) 296 ; though, see per Bramwell, B., 
 in Osborn v. Gillett, L. B. 8 Ex. 88 at 89. The reason that expenses of 
 burial must be incurred sooner or later, and therefore cannot be recovered 
 as damages, seems unsatisfactory as applied to Lord Campbell's Act. 
 The Act compensates for the pecuniary loss caused by the death. In 
 cases where a father has to bury a son whose death has been caused by 
 accident, expenses appear to be imposed on the father which else in the 
 order of nature would not be incurred by him at all ; and Phillimore, J., 
 in Bedwell v. Golding, 18 T. L. R. 436, held that funeral expenses could 
 be recovered under Lord Campbell's Act, and was followed by Darling, J., 
 Clark 1). London General Omnibus Co., 21 T. L. R. 505. But these leariied 
 judges in thus attempting to alter the law render themselves open to the same 
 criticism as James, L.J., made on Blackburn, J., who instead of following 
 decided cases delivered a " very elaborate judgment," which " would appear 
 to be rather an exposition of the law intended for the guidance of the 
 House of Lords if and when the whole matter should ever come to be 
 reviewed before that tribunal of ultimate appeal ; because the thesis of the 
 learned Judge is, not that the cases were wrongly decided, but that the 
 oases were decided on a wrong principle. However, that is not the way a 
 Court like this deals with the decisions of a Court of co-ordinate juris- 
 diction. The cases which are cited do not bind us as res gestcB, because 
 they are inter alios acta (sic) ; but they bind us in so far as they are autho- 
 ritative expositions and statements of the law. It is the principle of the 
 decision by which we are bound, not a mere rule that in exactly the same 
 circumstances we are to arrive at the same conclusions. Therefore, to say 
 that the decisions are wrong in point of principle if that principle was 
 clearly laid down, does not relieve us from the obligation of following the 
 principle of the decision, because the whole theory of our system is, that 
 the decision of a superior Court is binding on an inferior Court, and on a 
 
106 
 
 Lord Campbell's Act 
 
 Chap. V. 
 
 One only action 
 shall lie, and to 
 be commenced 
 within twelve 
 months. 
 
 Plaintiff to 
 deliver a full 
 particular of 
 the person for 
 whom such 
 damages shall 
 be claimed. 
 
 Construction of 
 Act. 
 
 III. Provided always that not more than one action 
 shall lie for and in respect of the same subject-matter of 
 complaint ; and that every such action shall be commenced 
 within twelve calendar months after the death of such 
 deceased person, {a) 
 
 IV. In every such action the plaintiff on the record 
 shall be required, together with the declaration, to deliver 
 to the defendant or his attorney, a full particular of the 
 person or persons for whom and on whose behalf such 
 action shall be brought, and of the nature of the claim 
 in respect of which damages shall be sought to be re- 
 covered. (6) 
 
 V. The following words and expressions are intended 
 to have the meanings hereby assigned to them respectively, 
 so far as such meanings are not excluded by the context 
 or by the nature of the subject-matter; that is to say, 
 words denoting the singular number are to be understood 
 to apply also to a plurality of persons or things ; and 
 words denoting the masculine gender are to be understood 
 to apply also to persons of the feminine gender ; and the 
 word " person " shall apply to bodies politic and corporate ; 
 
 Court of subordinate jurisdiction in so far as it is a statement of the law 
 which the Court is bound to accept" : Merry v. Nichalls, 7 Ch. D. 733 at 
 750. The Court of Appeal in Clark v. London General Omnibus Co., [1906] 
 2 K. B. 648, however, overrule, Phillimore and Darling, JJ. Cp. Bevan 
 V. Crawshay Brothers, [1902] 1 K. B. 25. The Public Authorities Pro- 
 tection Act, 1898 (56 & 57 Vict. c. 61), sec. 1, applies to an action under 
 Lord Campbell's Act ; and accordingly where applicable the action must 
 be commenced within six months next after the act, neglect or default 
 complained of : Markey v. Tolworth Joint Hospital District Board, [1900] 
 2 Q. B. 454. 
 
 (a) As to successive actions, where plaintiff's father and stepfather were 
 simultaneously killed, see Johnston v. G. N. Ky. of Ireland, 26 L. R. 
 Ir.691. 1 > 
 
 (b) See Annual Practice, under Order 19, r. 7 ; see also County Court 
 Eules, 1903, Order 6, r. 1, and Order 44, r. 3. In Ireland, in MoCabe v. 
 Guinness, Ir. B. 9 0. L. 510, default in delivering particulars with the 
 declaration was held ground for setting aside the service of the writ, not 
 for setting the writ aside. 
 
Lord Cam/phell's Act 107 
 
 id the word " parent " shall include father and mother, Chap. V. 
 id grandfather and grandmother, and stepfather and 
 epmother ; and the word " child " shall include son and 
 lUghter, and grandson and granddaughter, and stepson 
 id stepdaughter. 
 
 VI. Nothing therein contained shall apply to that ■*<=' "<>' '" »ppiy 
 
 " '^■' ■' to Scotland. 
 
 irt of the United Kingdom called Scotland, (a) 
 
 By an amending Act of 27 & 28 Vict. c. 95, the 
 lUowing additional provisions are made : — 
 
 1. If and so often as it shall happen at any time or where no action 
 
 , rt 1 . -IT brought within 
 
 mes hereafter in any of the cases intended and provided «'^ montbe ty 
 
 *' ^ executor of 
 
 »r by the said Act that there shall be no executor orP^J^™™^^^y 
 iministrator of the person deceased, or that there being plrsons ^'nea- 
 
 T , i--ii 1,. • ,1 daily Interested 
 
 icn executor or administrator no such action as in the in result of 
 
 action, 
 
 lid Act mentioned shall within six calendar months after 
 ae death of such deceased person or therein mentioned 
 ave been brought by and in the name of his or her 
 xeoutor or administrator, then and in every such case 
 ach action may be brought by and in the name or names 
 f all or any of the persons (if more than one) for whose 
 
 (a) By the law of Scotland a widow is entitled to damages for the death 
 f her husband, a son for the death of his father, and vice versa. It is no 
 nswer for the defender to show that the deceased was a burden to his 
 imiLy and his death a blessing. Evidence of this sort may affect the 
 amages but will not traverse the right : Elder v. Croall, 11 Dunlop 1040. 
 L claim of this sort is not competent to collaterals, whether the action is 
 aunded on solatium simply or on actual pecuniary loss : Pridie v. Dick, 19 
 )unlop, 287 ; Eisten v. North British Ry. Co., 8 Maopherson, 980 ; Black 
 . North British By. Co., [1908] S. C. Hi. The Scotch law has been con- 
 idered in the House of Lords, in Clarke v. Carfin Coal Co., [1891] A. C. 412 ; 
 ,nd Wood V. Gray & Sons, [1892] A. C. 576. An illegitimate child may 
 lot sue in respect of the death of his mother : Clement v. Bell, 1 P. 924 ; 
 Veir V. Ooltness Iron Co., 16 B. 614. By the law of Scotland also a 
 larty whose interests were injured by a murder might maintain a civil 
 lOtion for damages, called an action of assythement, against the murderer. 
 L verdict finding the prisoner guilty of the murder might be conclusive 
 gainst him, but an acquittal was not conclusive in his favour as against 
 he claim for damages. M'Harg v. Campbell, Mor. 12541 ; cited Ealston 
 I. Eowat, 1 CI. & P. at 428 ; op. appeal of murder. 
 
108 
 
 Lord Camphell's Act 
 
 Chap. V. 
 
 Money paid into 
 Court may be 
 paid in one sum 
 -without regard 
 to its division 
 into shares. 
 
 It not accepted, 
 defendant en- 
 titled to verdict 
 on the issue. 
 
 benefit such action would have been, if it had been brought 
 by and in the name of such executor or administrator ; and 
 every action so to be brought shall be for the benefit of 
 the same person or persons, and shall be subject to the 
 same regulations and procedure, as nearly as may be, as 
 if it were brought by and in the name of such executor 
 or administrator, (a) 
 
 2. It shall be sufficient, if the defendant is advised 
 to pay money into Court, that he pays it as a compensation 
 in one sum to all persons entitled under the said Act for 
 his wrongful act, neglect or default, without specifying 
 the shares into which it is to be divided by the jury ; (6) 
 and if the said sum be not accepted, and an issue is taken 
 by the plaintiff as to its sufficiency, and the jury shall 
 think the same sufficient, the defendant shall be entitled 
 to the verdict upon that issue. 
 
 3. This Act and the said Act shall be read together 
 
 This and recited . , 
 
 Act to be read aS OUC ACt. 
 
 as one. 
 
 (a) Under the similar Canadian Act an action for damages by reason 
 of the death of a person can be maintained by the person beneficially 
 entitled, though brought within six calendar months from the death, 
 unless there be at the time an executor or administrator of the deceased : 
 Lampman v. Gainsborough, 17 Ont. R. 191 ; following HoUeran v. BagneU 
 i L. &. Ir. 740. 
 
 (6) Where money has been paid to compromise a claim, but no division 
 or apportionment of the money has been made, and there is no legal right 
 to obtain apportionment, an action will lie, though the proper remedy is 
 to go to a court of equity to compel the defaulter to administer the trust : 
 CondUSE V. CoudlifiE, ii9 L. T. (N. S.) 831. Money paid into Court may be' 
 paid out on a consent embodying the agreed terms of payment being made 
 a rule of Court ; Shallow v. Verdon, Ir. B. 9 C. L. 150. Failing an agree- 
 ment, money paid into Court may be paid out in proportions fixed by 
 analogy to the Statute of Distributions : Sanderson v. Sanderson, 36 L. T. 
 (N. S.) 847. As to money paid into Court on account of an infant ; B. S. C. 
 1883, Order 22, rr. 15 and 16 ; and 0. C. E. 1908, Order ix., r. 24 For the 
 practice as to next friend of an infant, see Annual Practice, 1908, 171. 
 In Scotland it has been held that as the next friend is dominus litis he 
 may compromise the infant's claim : Gow v. Henry, 2 P. 48. It seems 
 that in Scotland a mere claim for personal injury may be assigned : Waill 
 V. Actieselskabat Dalbeattie, 6 F. 798. This is not so in England : Prosser 
 V. Edmonds, 1 Y. & 0. 481. The law as to the assignment of rights of 
 action for torts is exhaustively treated in eleven propositions in Salmond, 
 Law of Torts, 133. 
 
Rule of Compensation 109 
 
 Chap. V. 
 PEOPOSITION II — 
 
 Oompensation under this Act is to be governed by compensation 
 the consideration of what the deceased man himself would 
 be entitled to were he alive and suing. 
 
 "You cannot estimate the value of a person's life to his relatives illustration. 
 
 You must estimate the damage by the same principle as if only a wound 
 had been inflicted." (cs) 
 
 PEOPOSITION III 
 
 Compensation under this Act is purely for pecuniary Loss means 
 
 ^ i .f A ^ ./ pecuniary lo! 
 
 loss, therefore mental sufferings of the surviving relatives 
 cannot be taken into consideration. 
 
 " The meaning of this enactment is this : If a man's life be valuable lUnstratlon. 
 to his family by reason of his possession of any annuity, his family have 
 now a right to say, ' We have lost the life on which this annuity hung,' 
 and they may claim compensation for that loss, but nothing more ; they 
 cannot enter into the question of the shock to their feelings." (6) 
 
 PEOPOSITION IV 
 
 Pecuniary loss from a death is estimated by reference '^'^^^^^^°^^ 
 to any reasonable expectation of pecuniary benefit the P^°^P^^Jy°^ 
 
 benefit. 
 
 (o) Per Parke, B., Armsworth v. S.-E. By. Co. (1847), 11 Jur. 758 at 
 760. The meaning of this is that the claim of the relatives is limited to 
 the loss they have sustained by the death. 
 
 (6) Per PoUook, C.B., GiUard v. Lanos. & Y. By. Co. (1848), 12 L. T. 
 (0. S.) 356, quaUfied by his remark in Pym v. G. N. By. Co., 4 B. & S. 396 
 at 402 ; Blake v. Midland Ey. Co. (1832), 18 Q. B. 93. In St. Lawrence 
 and Ottawa Ed. Co. v. Lett, 11 Can. S. 0. E. 422, a husband is held entitled 
 to recover in respect of the death of his wife damages for the loss of house- 
 hold services accustomed to be performed by the wife, which have to be 
 replaced by hired services, and also th§ Ipss tg the children of the care and 
 moral training of their mother. 
 
110 Lord Gampbell's Act 
 
 Chap. V. survivors may establish, and is not limited to the con- 
 sideration of the actual legal liability of the deceased to 
 support them. 
 
 niustratioDs. " What," says, Fitzgibbon, L.J., " is the ' pecuniary damage ' of which 
 
 the plaintiff must give evidence? In my opinion damage capable of 
 being estimated in money and of being compensated in money y (a) 
 
 A father who is old and infirm received assistance from his son to the 
 extent of 3s. 6d. per week. The son is killed by the negligence of a 
 railway company. The reasonable expectation of the father that the son 
 would continue his assistance is sufficient to enable the father to maintain 
 an action. (6) 
 
 A chemist, by mistake for tincture of rhubarb, sends laudanum for a 
 child, and which, being administered, causes death. The child is only 
 twelve years old, living at home, and pecuniarily a burden to its parents. 
 The father has a reasonable expectation of benefit from the child, and 
 can sue. (c) 
 
 A father sues in respect of the death of his son, caused by the 
 defendant's negligence. Two years and a half before the accident the 
 boy earned 4s. a week. At the time he was killed he was not in any 
 employment. The father on the finding of the jury is entitled to 
 recover, {d) 
 
 {a) Wolfe V. Or. N. Ky. Co., 26 L. B. Ir. 556. 
 
 (6) Franklin v. S.-E. Ky. Go. (1858), 3 H. & N. 211 ; foUowed in Dalton 
 V. S.-E. By. Co. (1858), 4 C. B. (N. S.) 296. But where a father employed 
 his son, who was a skilled workman, at the current rate of wages, he was 
 held to have no claim under the Act in respect of his loss : Sykes v. N.-E. 
 By. Co., a L. J. 0. P. 191 ; and where the father was in an independent 
 position, and the child had never contributed anything to the father, and 
 there was no moral duty upon the child's part, taking into consideration 
 the position of the father, to contribute any part of earnings he might 
 make in the future, it was held that no reasonable expectation existed 
 sufficient to warrant the claim being left to a jury : Bourke v. Cork and 
 Maoroom By. Co. (1879), 4 L. B. Ir. 682; Johnson v. G. N. By. Co. of 
 Ireland, 26 L. E. Ir. 691. 
 
 (c) Bramall v. Lees, 29 L. T. (0. S.) Ill and 166, where the rule obtained 
 in the case is stated to have been abandoned. 
 
 {d) Duckworth v. Johnson (1853), 4 H. & N. 653, Bramwell, B., doubted. 
 The test applied was whether there was " some evidence of a prospect of 
 benefit." Morris, C.J., in HoUeran v. Bagnell, 6 L. E. Ir. 333, adds a rider 
 to the principle as enunciated in Duckworth v. Johnson : " And there 
 should be distinct evidence of pecuniary advantage in existence prior to or 
 at the time of the death. This advantage must be a benefit to the plain- 
 tiff." The same rule was adopted in Hull v, Gr. N. By. Co. of Ireland, 26 
 L. B. Ir. 289; and in Wolfe v. G. N. By. Co, of Ireland, 26 L. B. Ir. 548. 
 
Rule of Compensation 111 
 
 A widow sues ia respect of the death of her son, a boy of fourteen, Qhap. V 
 
 who had never earned wages, but whose capability is valued at sixpence 
 
 a day. The probability of his earning more and devoting part of his 
 earnings to his mother is evidence that must be submitted to a jury, (a) 
 
 A man of considerable landed property, which went in greatest part 
 to his eldest son, but who had several younger children, is killed by the 
 negligence of a railway company. His property is undiminished, but the 
 distribution of it is altered by his death. Those of his family who have 
 lost a reasonable probability of pecuniary benefit by the death can 
 maintain an action. (V) 
 
 A laundress sues in respect of the death of her mother, killed in a 
 railway accident. The mother lived with her daughter (the plaintiff), 
 by whom she was lodged and maintained. The mother assisted in the 
 laundry, in keeping house, and cooking and serving meals. No 
 evidence is given that the value of her services exceeded the cost of her 
 support. Failing evidence on this point there is no case to go to the 
 jury- (c) 
 
 A child of ten, negligentlir killed on the defendants' railway line, 
 " did the work of the house " for her father and mother. There is 
 evidence that after her death the parents are obliged to hire a substitute 
 at 3s. 6d. a week. This is evidence that must go to a jury of reasonable 
 expectation of pecuniary benefit, {d) 
 
 Judge Lumley Smith, K.O., held in the City of London Court (Times 
 Newspaper, 13th IPebmary, 1903) that where two children, thirteen and 
 sixteen years of age respectively, were supported by a grandfather aged 
 seventy, and the father did not contribute anything, on the death of the father 
 through an accident there was no reasonable expectation of pecuniary benefit 
 from him such as would enable them to recover under the Employers 
 Liability Act, 1880. The facts and circumstances of the particular 
 ca3e, here e.g. the habits, health, means, declarations, and disposition of 
 the father, must have a deciding force in oases of this kind. As Meld, J., 
 said in Hetherington v. N.-E. Ey. Co., 9 Q. B. D. 160 at 162 : " I have 
 always understood the rule laid down by the decisions in such cases to be 
 that there must have been a reasonable expectation of pecuniary advantage 
 to the relation from the life of the deceased." There five or six years 
 before the accident a father being out of work for six months had been 
 assisted by his son, who had not done so since, 
 
 (a) Condon v. Great Southern and Western Ey. Co. of Ireland, 16 
 Ir. C. L. 415. In this case past filial conduct was also held evidence to be 
 submitted to the jury. 
 
 (6) Pym V. G. N. Ry. Co. (1862), 2 B. & S. 759 ; 4 B. & S. 396. The 
 remedy, it was said, was given not to a class but to individuals. 
 
 (c) Hull V. G. N. By. Co. of Ireland, 26 L. B. Ir. 289. 
 
 (d) Wolfe V. G. N. By. Co. of Ireland, 26 L. R. Ir. 548. In the opmion 
 of Pitzgibbon, L.J., in this case, at 566, " pecuniary damage " must be 
 damage capable of being estimated in money and compensated in money. 
 
112 
 
 Lord Campbell's Ad 
 
 Chap. v. ^ father, fifty-nine years of age and infirm, sues in respect of the 
 
 death of his son. Fire or six years previously, while the father had 
 
 been out of health, the son had contributed to his support. At the time 
 of the son's death by the defendant's negligence these contributions 
 had ceased. There is evidence of a reasonable expectation of pecuniary 
 benefit, (a) 
 
 PEOPOSITION V 
 
 Life income. 
 
 Where the person in respect of whose death an action 
 under this Act is brought was in possession of an income 
 terminating with his life, the jury, in assessing the loss 
 arising from the death, should be directed to calculate the 
 value of the income as a life annuity, and then to deduct 
 therefrom such allowances in respect of the various con- 
 tingencies attaching to the life, and the income while 
 enjoyed by the deceased, save only the accident causing 
 the death, as, in the circumstances of the case, seem 
 reasonable and probable. The remainder is the pecuniary 
 loss recoverable under the Act. 
 
 lUustrationa. A widow Sites in respect of the death of her husband. The deceased 
 
 was a partner in a mercantile house. His whole income was £850 a 
 year, derived from profits of trade as well as from permanent sources. 
 His age at the time of his death is thirty-four, his, wife's age twenty-six. 
 
 The judge suggests to the jury, as a mode of estimating the pecuniary 
 loss, to take so much per annum of the whole income as a wife living 
 with her husband, and maintained according to her station in life, might 
 be supposed to enjoy, and considering it as an annuity to reckon its value 
 as so many years' purchase as it was worth, reference being had to the 
 joint ages of husband and wife ; then to deduct from this gross value the 
 amount in money which the wife would become entitled to by the death 
 
 The question in what oiroumstanoes services are to be considered as 
 rendered gratuitously or for remuneration was considered in Thomson v. 
 Thomson's Trustee, 16 E. 883, per Lord Shand at 335. " Beasonabla 
 expectation of benefit " is discussed, Mason v. Bertram, 18 Ont. R. 1. 
 
 (a) Hetherington v. N.-E. Ry. Co. (1882), 9 Q, B.,P, 160. 
 
Assessment of Loss 113 
 
 of her husband (namely, his share of the partnership profits for a term of Chap. V, 
 
 from four to five years, according to the deed of partnership, and dower 
 
 upon his real property), and to award the balance as compensation under 
 the Statute. 
 
 It is objected that allowance is not made for certain contingencies 
 which might have lessened the annual amount supposed to be enjoyed 
 by the wife during the husband's lifetime. The learned judge admits 
 these. A new trial is, however, granted on the ground that the judge 
 at the trial had not more specifically negatived any claim for mental 
 suffering, (a) 
 
 A solicitor, by articles of partnership with his father, covenants 
 diu-ing the joint lives of himself and his mother to pay her an annuity 
 of £200. He is kflled in a railway accident. At the time of his deatli 
 he is forty years of age, and his mother sixty-one. He leaves a widow 
 and children. His executrix brings an action under Lord Campbell's 
 Act. The judge directs the jury that they may, if they think proper, 
 calculate the damage which the mother of the deceased is entitled to 
 recover by ascertaining what is the sum of money which would purchase 
 an annuity for a person sixty-one years of age according to the average 
 duration of human Hfe ; and that they may, if they think proper, take as 
 a guide in their calculations of the damages recoverable for the wife and 
 children the probable duration of the life of a man of forty years of age, 
 in the ckcumstances in which the deceased was. Tables used by 
 insurance offices, and known as the '■ Carlisle Tables," are put in to 
 show the average duration of lives of the ages indicated. 
 
 The direction of the learned judge is excepted to and held defective — 
 (1) in not pointing out that the mother had lost an annuity for the joint 
 lives of herself and her son ; (2) in not pointing out that the annuity lost 
 was one secured by the personal covenant of the deceased, while that 
 spoken to in the evidence was a Government annuity, or one on very 
 exceptionally good security. 
 
 The direction is, however, correct— (1) in taking the annuity as an 
 average one in the absence of evidence that the life was either better or 
 worse than the average'; (2) in stating that the data from actuaries' 
 tables may be elements for the consideration of the jury. (6) 
 
 {a) Blake v. Midland Ey. Co., 18 Q. B. 93. 
 
 (6) Eowley v. L. & N.-W. Ky. Co., [1873] L. E. 8 Ex. 221 ; foUowed 
 Johnston v. G. W. By. Co., [1904] 2 K. B. 280, where (at 259) Williams, 
 L.J., approves a direction : " There are the accidents of life and other 
 elements which have to be taken into consideration, which ought to 
 prevent you giving him such a sum as would be simply an investment for 
 
 B.E.L. -i- I 
 
114 
 
 Lord Cam^phelVs Act 
 
 Insurance 
 money taken 
 into account. 
 
 -Chap^V. PEOPOSITION VI 
 
 At common law insurance money receivable by the 
 injured party is not to be taten into account in estimating 
 the compensation payable in case of accident. 
 
 The rule under Lord Campbell's Act was different, and 
 the reasonable expectation of pecuniary benefit from in- 
 surance money receivable by the executor or administrator 
 of the deceased was taken into account. 
 
 Now the rule under Lord Campbell's Act is identical 
 
 with that of the common law.(a) 
 
 llluatrations. A plaintiff recovers £217 at common law in respect of damages sus- 
 
 tained through the defendants' negligence. He had received besides 
 £31 on account of the accident upon an insurance effected by him with 
 an insurance company. This latter sum cannot be taken into account in 
 reduction of damages. (J) 
 
 A man was killed by the negligence of a railway company. His repre- 
 sentative sued under Lord Campbell's Act. Two insurance policies were 
 subsisting, into which he had entered — one against accident by railway, 
 one on his life. The whole amount of the one was to be deducted from 
 the money payable to his representative ; from the other only the amount 
 of the premiums payable for the period for which the jury estimated his 
 life, (c) 
 
 A healthy man forty-one years of age loses his life through the 
 negligence of a railway company. He leaves no estate, but has effected 
 a life policy for 2,000 dols. payable to his widow. This is paid to her 
 after his decease. She sues under the Canadian Statute corresponding 
 to Lord Campbell's Act. The defendants claim to deduct the 2,000 dols. 
 from the amount assessable as damages. The Court holds that the 
 
 him and enable him to do nothing. Still, he is entitled to a fair sum, 
 considering the position for which he was fitted and the position in which 
 he is now." See also Phillips v. L. & S.-W. Ey. Co., 5 Q. B. D. 78, and 
 5 C. P. D. 280 ; op. Vioksburg Bd. Co. v. Putnam, 118 XJ. S. (11 Davis) 545 
 at 554 ; and Central Vermont Ed. Co. v. Pranoh^re, 35 Can. S. 0. E. 68. 
 As to the actuarial value of an annuity, see per Lord Eldon, C, Low v. 
 Barohard, 8 Ves. 138 at 136. As to the general principles of compensa- 
 tion, post, 290. 
 
 (a) Fatal Accidents (Damages) Act, 1908 (8 Edw. 7, o. 7). 
 
 (6) Bradburn v. G. W. Ey. Co., L. E. 10 Ex. 1. 
 
 (c) Hicks V. Newport, Abergavenny and Hereford Ey. Co., 4 B. & S. 
 403 n. 
 
■ Effect of Receipt 115 
 
 receipt of the insurance money by the widow is merely one of the oiroum- Chau V 
 
 stances which ought to be taken into account by the jury in estimating L 
 
 her pecuniary loss, and the jury are not bound as matter of law, to 
 deduct from the damages the full amount paid to the widow under the 
 policy, (a) 
 
 PROPOSITION VII 
 
 The pecuniary loss in respect of which the repre- Pecuniary loss 
 sentatires of the deceased are compensated under Lord does not include 
 
 * Injuiy to the 
 
 Campbell's Act does not include the right to recover for p^^™"' estate. 
 any injury sustained through the death by the personal 
 estate. 
 
 A widow, after recovering damages for the death of her husband illustrations, 
 under Lord Campbell's Act, sues as administratrix of her husband to 
 recover damages for injuries caused by the same negligence to the 
 " personal chattels " of the deceased. She is entitled to do so. (6) 
 
 The widow of a man killed in a railway accident brings an action for 
 damages against the railway company, not consequentially upon her 
 husband's death, but caused by his inability to attend to his business in 
 his lifetime. She is entitled to recover, (c) 
 
 (a) Grand Trunk Ry. Co. of Canada v. Jennings, 13 App. Gas. 800. At 
 the trial the judge, apparently wrongly, excluded from the consideration of 
 the jury " all chances of the deceased's having obtained a rise of wages, 
 or of his having been able to make some further provision for his widow " ; 
 see at 805. 
 
 (h) Bamet v. Lucas (1870), Ir. B. 5 O.L. 140; in Ex. Oh. Ir. R. 6 0. L. 
 2i7 ; cp. Brunsden v. Humphrey (1884), 14 Q. B. D. 141 : A cabman re- 
 covered damages for injury caused by the defendant's negligence to his 
 cab. He subsequently recovered for personal injuries sustained through 
 the same negligence. His claims were at common law. This case is 
 almost identical with Roberts v. Eastern Counties By. Co., 1 F. & P. 460. 
 
 (c) Bradshaw v. Lanes. & Y. By. Co. (1875), L. B. 10 C. P. 189; 
 following Potter v. Metropolitan District By. Co., 30 L. T. (N. S.) 765 ; 
 and followed by Leggott «. G. N. By. Co., 1 Q. B. D. 599. Pulling v. 
 G. E. By. Co., 9 Q. B. D. 110, which was an action by an administratrix 
 for loss of earnings by her intestate during his illness preceding death, and 
 for medical expenses, was distinguished from Bradshaw's case on the 
 groimd that the alleged cause of action arose from a tort having no 
 feundation in contract. See Lendon v. London Boad-Car Co., 4 T. L. B. 
 448 ; also Hatchard v. M6ge, 18 Q. B. D. 771. There is a Canadian case, 
 White V. Pai:ker, 16 Can. S. C, B. 699, which may be looked at. 
 
116 
 
 Lord Oampheirs Act 
 
 Chap. V. 
 
 Keceipt not 
 conclusive of 
 satisfaction. 
 
 tllastrations. 
 
 PROPOSITION VIII 
 
 Tlie acceptance of compensation and the giving a 
 receipt by the plaintiff in full satisfaction and discharge 
 of his cause of action is prima facie a bar to any further 
 claim but such receipt is not conclusive ; (a) and, where it 
 is shown that the compensation was accepted and the 
 receipt given in ignorance of the plaintiff's total injuries 
 and claim, or that any unfair advantage was taken of the 
 plaintiff in order to obtain it, will not avail to defeat the 
 plaintiff's claim. 
 
 Deceased had recovered damages in an action in respect of the injuries 
 which subsequently caused his death. On death ensuing deceased's 
 executor seeks to bring a fresh action. He is pot entitled to do so. (b) 
 
 A railway company gave a man injm-ed by them £20, for which ho 
 signed a receipt in full satisfaction of the grievances complained of. The 
 man seeks to bring an action, alleging the facts in respect of which he 
 had been given the £20 and had signed the receipt. He declares he did 
 not read the receipt, but supposed it merely acknowledged the payment 
 of the £20. There is a question for the jury whether the plaintiff's mind 
 went with his signature and was he aware of the terms of the receipt, (c) 
 
 Plaintiff effected a policy of insurance with defendants against bodily 
 injury. He meets with an injury which disables him for some days. He 
 
 (a) A question has been raised whether there is any legal difference 
 between " a reoeipt in full discharge" and "a formal agreement in satis- 
 faction." The difierence would appear for practical purpose to be only in 
 degree. The one document is a contract and the other is not. In both 
 cases the plaintiff would have to establish a case for relief : in the case of 
 the contract he would have to overcome a stronger presumption against 
 him, possibly even to show fraud, Steward v. G. W. By. Co., 2 De G. J. & Sm. 
 319 ; Crossan v. Caledon Shipbuilding and Engineering Co., [1906] 
 W. N. (H. L.) 104k. In the case of a contract with an infant, Stephens v. 
 Dudbridge Ironworks Co., [1904] 2 K. B. 225 at 229, points out that 
 "whenever such a contract comes before a court of law, the question 
 whether it was for the benefit of the infant has to be considered, and the 
 contract will not be enforced unless the Court is of opinion that it was for 
 the benefit of the infant." 
 
 (6) Read v. G. E. By. Co., L. B. .3 Q. B. 555 ; see Farmer v. 
 Trunk By. Co., 21 Ont. B. 299. 
 
 (c) Bideal v. G. W. B. Co., 1 F. & F. 706. 
 
 Grand 
 
Effect of Receipt 117 
 
 then signs an agreement undertaking to accept £11 15s. lOd. in full Chap. Vi 
 
 discharge of his claim against defendants in respect of the accident, •^^^^'^ 
 
 Subsequently he sighs a receipt for the money in full discharge of his 
 
 claim. After this and in consequence of the injury he becomes totally 
 
 disabled for twenty-six weeks. He then brings his action to recover the 
 
 sum of £144 12s., the balance of the sura due under the policy for such 
 
 total disablement. He is entitled to succeed ; for his agreement is to 
 
 accept the sum he receives in full discharge of his claim against defendants 
 
 in respect of the accident. " That meant the claim which had already 
 
 been made, and which related solely to the disablement to which he had 
 
 already suffered." (a) 
 
 When a man is lying suffering from the effects of an accident, persons 
 go to him on behalf of the railway company liable for the consequences 
 of the accident and induce him, by false representations as to the medical 
 opinions which have been given about his case, to accept an insignificant 
 sum in full of all demands. The railway company will be restrained from 
 setting up the document thus procured against a further claim. (6). 
 
 A gentleman of education and skill having received injury in a railway 
 accident, and having been treated for some time for his injuries and seen 
 by doctors on behalf of the railway company, sends to the company, after 
 consultation with his medical advisers, a claim for £691. Persons from 
 the company having visited him on the subject of this claim, and having 
 discussed it, the compensation is fixed at £400. The money is paid and 
 a receipt given by the injured man to the Lancashire and Yorkshire Rail- 
 way Company " in discharge of my claim in full upon that company for 
 all loss sustained and expenses incurred by the late accident," " including 
 aU expenses attending the same." Subsequently, on the ground that the 
 injuries are more serious and permanent than had been supposed, an 
 action is commenced against the company for damages. The company 
 in defence alleges the payment of the £400 in satisfaction. The Court 
 of Chancery refuses to restrain the company from relying on their plea. 
 In the action it is for the jury to say whether the plaintiff, lona fide and 
 fairly knowing what he was about, received the sum in satisfaction of his 
 claims, (c) 
 
 (a) Prosser v. Lancashire and Yorkshire Accident Insm'anoe Co., 
 6 T. L. E. 285, per Lord Bsher, M.E., at 286. As the injury had been 
 discharged and the case heard by the judge, this conclusion must be taken 
 to be his on the evidence acting as a jury. 
 
 (6) Stewart v. G. W. By. Co., 2 De G. J. & S. 319 ; Crossan v. Galedon 
 Shipbuilding and Engineering Co., [1906] W. N. (H. L.) 104. 
 
 (c) Lee V. Lanes. & Y. By. Co. (1870), L. B. 6 Ch. 527 ; see particularly 
 per Mellish, L.J., at 536 ; M'Donagh v. MacClellan, 13 B, 1000, Wright v. 
 
118 
 
 Lord Campbell's Act 
 
 Chap. V. -A- plaintiff having faken £27 in settlement is held barred from pursuing 
 • an action for £5,000. (a) 
 
 An apprentice who receives 5s. a week as wages is injured, losing three 
 fingers while working a plane driven by machinery andinsufBciently fenced. 
 A relative with whom he is living but who is not his guardian writes to the 
 employers and says that he cannot "do less than respectfully make a 
 claim upon the Company (under the Workmen's Compensation Act, 1897) 
 for the sum of £50 as compensation for the loss of such fingers." The 
 employers answer that they are willing to pay the scale of compensation 
 under that Act. On the following day the apprentice gives a receipt : 
 " Eeceived of the Dudbridge Ironworks Co., Ltd., the sum of 12s. &d., being 
 the first five of the successive weekly payments which I elect to accept 
 under the Workmen's Compensation Act in full satisfaction and discharge 
 of all claims for compensation accrued or to accrue, in respect of all 
 injuries or injurious results, direct or indirect, arising or to arise from 
 an accident sustained by me on or about the 15th day of August last 
 while in the employment of the above." (J) The receipt is not binding on 
 the infant, and though he has returned and worked some time in the 
 employment he has not lost his right of action at common law. (c) 
 
 PEOPOSITION IX 
 
 Admiralty The Admiralty Division of the High Court of Justice 
 
 Division do " . 
 
 jurisdiction jj^s no iurisdictiou to entertain suits instituted under 
 
 against wrong- J 
 
 Sndlrlhrict. Lord Campbell's Act by the legal representatives of the 
 deceased person against the wrong-doing vessel. 
 
 London General Omnibus Co. (1877), 46 L. J. Q. B. 429, is a case o£ res 
 judicata, and not of accord and satisfaction. The O[uestion of knowledge 
 or intention could therefore not arise. Hirschfeld v. London, Brighton 
 and South Coast By. Co., 2 Q. B. D. 1, is the case of fraudulent 
 representation as to the nature of injuries. 
 
 (a) North British By. Co. v. Wood, 18 E. (H. L.) 27, followed in Mackie 
 V. Straohan, Kinmond & Co., 23 R. 1030, and Ellen v. G. N. R. Co., 
 17 T. L. R. 453. 
 
 (6) Neale v. Electric and Ordnance Accessories Co., Ltd., [1906] 2 K. B. 
 558, differs in being the case of the award of a judge on the trial of an 
 action. 
 
 (c) Stephens v. Dudbridge Ironworks Co., [1904] 2 K. B. 225. Valenti 
 V. Wm. Dixon, [1907] S. C. 695, is a case under the Workmen's Compensa- 
 tion Act, 1897, where it is held not proved that the applicant had elected to 
 take compensation under the Act. 
 
Effect of Receipt 119 
 
 The action under Lord Campbell's Act is " as plainly as possible, a Chap. V. 
 
 personal action given for a personal injury inflicted by a person who 
 
 would .have been liable to an action for damages, manifestly in the illustration. 
 common law courts, if the death had not ensued." (o) 
 
 (a) Per Lord Selborne, C, in Seward v. " Vera Cruz," 10 App. Gas. 59 
 at 67. The question principally in dispute was whether the Admiralty 
 Court Act, 1861 (24 Vict. o. 10), gave the jurisdiotion by the words of sec. 7, 
 which enacted that the " High Court of Admiralty shall have jurisdiotion 
 over any claim for damage done by any ship." The answer, after much 
 fluctuation of opinion, is that it did not. In Seward v. " Vera Cruz," at 64, 
 Lord Selborne, C, affirms the jurisdiotion of the Admiralty Division to 
 deal with an action under Lord Campbell's Act, " as in any other case 
 (but not more in this than any other case), if no objection were taken, 
 and no transfer asked for or made." This, however, is not to constitute 
 an Admiralty action under the special Adiniralty jurisdiction ; see The 
 Orwell, 13 P. D. 80. See the Canadian case, Monaghan v. Horn, 7 Can. 
 S. C. R. 409 ; and the United States case, " The Corsair," 145 XJ.S. (38 
 Davis) 335 at 343, where the English cases are collected and considered. 
 
PAET II 
 
 THE EMPLOYEES LIABILITY 
 ACT, 1880 
 
THE EMPLOYERS LIABILITY ACT, 1880(a) 
 
 (43 & 4A Vict. 0. 42.) 
 
 An Act to extend and regulate the Liability of Employers ^• °- "^ °- 
 to make Compensation for Personal Injuries suffered 
 by Workmen in their service. (6) 
 
 [7th September 1880.] 
 
 Be it enacted by the Queen's most Excellent Majesty, by 
 
 (a) " As to the style or title of the Act," says Lord Coke (11 Co. Eep. Title, preamble, 
 33), " that is no parcel of the Act, and ancient Statutes were without any "^ marginal 
 title, and many Acts are of greater extent than the titles are." Lord ^ " 
 Hardwioke also, in Att.-Gen. v. Lord Weymouth (Ambler 23), says : " The 
 title is no part of the Act." 
 
 "In strictness neither the full title, the marginal notes nor the 
 pimotuation form any part of an Act of Parliament, and they ought not in 
 any way to be allowed: to afieot its construction " (Per Willes, J., in 
 Claydon v. Green, L. B. 3 0. P. 511 at 522). Although the full title is no 
 part of an Act of Parliament it is always on the roll. As to the marginal 
 notes, the practice is uncertain (Sutton v. Sutton, 22 Ch. D. 511, per 
 Jesael, M.R., at 512). The title and the preamble may always " be looked at 
 in order to remove any ambiguity in the words of the Act" (Per Huddle- 
 ston, B., in Coomber v. Justices of Berks, 9 Q. B. T>. 17 at 33. The 
 significance of a statement in the preamble of an Act of Parliament was 
 discussed at length in Powell v. Kempton Park Eacecourse Company in 
 the House of Lords, [1899] A. 0. 143 at 157, 184 and 192, and by Lord 
 Maonaghten in Penton v. Thorley & Co., [1903] A. 0. at 447). 
 
 "In old days," says Lindley, M.R. (Fielding v. Morley Corporation, 
 [1899] 1 Ch. 1 at 4), the title of an act of Parliament used not to be part of 
 the Act, " and in the old law books we were told not so to regard it ; but now 
 the title is an important part of the Act and is so treated in both Houses 
 of Parliament." In Eagleson, Liability of Employers, the various dicta 
 of judges on the necessity for a beneficial construction of the Act in the 
 , interest of the workman are collected at 85-90. 
 
 ' (6) Post, 134. 
 
~'J 
 
 124 Employers Liability Act, 1880 
 
 A.D^8o. ^^^ ^-^jj ^j^g adrice and consent of the Lords Spiritual 
 and Temporal, and Commons, in this present Parliament 
 assembled, and by the authority of the same, as follows : — 
 
 Amendment 1. Where after the commencement of this Act personal 
 
 1/ injury (a) is caused (6) to a workmanYcV ^i^'*-^^ « '^''■' 
 
 I \''/ (1) By reason of any defect ((^) in the condition («) 
 
 of the ways,(/) works, (5') machinery, (A) or 
 plant (i) connected with or used in the business 
 of the employer ; Qt) or 
 
 (2) By reason of the negligence of any person in the 
 service of the employer who has any super- 
 intendence entrusted to him (J) whilst in the 
 exercise of such superintendence ; (m) or 
 
 (3) By reason of the negligence of any person in the 
 service of the employer to whose orders or direc- 
 tions the workman at the time of the injury was 
 bound to conform, («.) and did conform, where 
 such injury resulted (0) from his having so con- 
 formed •,{p) 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, (j) or in obedience to particular 
 instructions given by any person delegated with 
 the authority of the employer in that behalf ; if) 
 or 
 
 (a) Ante, 51. (6) Ante, 52. (c) Foit, 266. (S) Post, 159, 187. 
 
 (e) Post, 156. (/) Post, 168. (g) Post, 168, 173. [h) Post, 169,175. 
 
 (i) Post, 181. (k) Post, 168, 179. (I) Post, 194, 197. (to) Post, 194. 
 
 (n) Post, 208, (o) Post, 223. {p) Post, 221. (j) Post, 224. 
 
 ()•) Post, 229, 
 
Employers Liahilihj Act, 1880 125 
 
 (5) By reason of the negligence of any person in the a.d. isso. 
 service of the employer who has the charge or 
 control (a) of any signal, points, locomotive 
 engine, or train upon a railway, QS) 
 
 the workman, or in case the injury results in death, the 
 kgal personal representatives of the workman, (c) and 
 any persons entitled in case of death, shall have the same 
 right of compensation (d) and remedies against the em- 
 ployer as if the workman had not been a workman of 
 nor in the service of the employer, nor engaged in his 
 work. 
 
 2. A workman shall not be entitled under this act to Exceptions to 
 
 ** amendment of 
 
 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 negli- 
 gence of the employer, (e) 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 men- 
 tioned ; 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 
 
 (a) Fost, 237. (b) Post, 234. (c) Post, 238, 289. 
 
 (d) Post, 290. (e) Post, 159. (/) Post, 157. 
 
126 Employers Liability Act, 1880 
 
 A.D. 1880. ii , of Trade or any otlier department of the G-ovem- 
 ment, under 6r 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. (a) 
 
 (3) In any case where the workman knew of the defect 
 or negligence which caused his injury, and failed 
 within a reasonable time to give, or cause to be 
 given, information thereof to the employer or 
 some person superior to himself in the service 
 of the employer, (5) unless he was aware that the 
 employer of such superior already knew of the 
 said defect or negligence, (c) 
 
 Limit of sum 3. The amouut of compensation recoverable under 
 
 TOmplnsation. this Act shall not cxcced 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, (e) 
 
 Limit of time for 4. Au actiou for the recovcry under this Act of com- 
 peneation. pensatiou for an injury shall not be maintainable unless 
 notice that injury has been sustained 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 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, {g) 
 
 (a) Post, 224, (6) Post, 194. (c) Post, 158, 191, 194. 
 
 (d) Post, 158. (e) Post, 240. (/) Post, 242, 
 
 (a) Post, 243. 
 
Employers Liability Act, 1880 127 
 
 5. There shall be deducted from any compensation ^-d- isso. 
 awarded to any workman, or representatives of a workman, Money payable 
 
 , under penalty to 
 
 or persons claiming by, under, or through a workman in com^eSsltU)?™ 
 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 
 workman, representatives, or persons in respect of the same 
 cause of action; and where an action has been brought 
 under this Act by any workman, or the representatives 
 of any workman, 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 Tmi of actions. 
 this Act shall be brought in a county court, but may, upon 
 the application of 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. (6) 
 
 (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, (c) 
 
 (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 
 
 (a) Post, 248. (6) Posi, 251. (c) Post, 258. 
 
128 Employers Liability Act, 1880 
 
 A.D. 1880. also for the purpose of consolidating 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, (a) 
 
 " County court " shall, with respect to Scotland, mean 
 the "Sheriff's Court," and shall, with respect to Ireland, 
 mean the " Civil Bill Court." (6) 
 
 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) 
 
 40 & 41 Vict. Act, 1877, (c) 
 
 c. 60. ' \ / 
 
 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, {d) 
 
 Mode of seiTing 7. Notice in respect of an iniury under this Act shall 
 
 notice of injury. ^ J J 
 
 give the name and address of the person injured, and shall 
 state in ordinary language the cause of the injury and the 
 date at which it was sustained, and shall be served on the 
 employer, or, if there is more than one employer, upon one 
 of such employers, (e) 
 
 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(5') by a 
 registered letter addressed to the person on whom it is 
 
 (o) Post, 259. (6) Post, 258. (c) Post, 258. 
 
 (d) Post, 284. (e) Post, 259, 262. (/) Post, 265. 
 
 (g) Post, 262. 
 
Employers Liability Act, 1880 129 
 
 to be served at his last known place of residence or place a.d. isso. 
 
 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 
 unincorporate, 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) 
 
 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.(6) 
 
 8. For the purposes of this Act, unless the context Deamtiona. 
 otherwise requires, — 
 
 The expression "person who has superintendence en- 
 trusted to him " means a person whose sole or prin- 
 cipal duty is that of superintendence, and who is not 
 ordinarily engaged in manual labour : (c) 
 
 The expression " employer " includes a body of persons 
 corporate or unincorporate : (d) 
 
 The expression "workman" means a railway servant 
 and any person to whom the Employers and 
 Workmen Act, 1875, applies.(e) as & 39 vict. 
 
 c. 90. 
 
 (a) Post, 260. (6) Post, 2. (c) Post, 197. 
 
 (d) Post, 265, (e) Post, 266. 
 
 B.E.L. K 
 
130 Emploi^ers Liability Act, 1880 
 
 A.D^ao. g_ This Act shall not come into operation until the first 
 
 of a"?""""™' *^*y "^ January one thousand eight hundred and eighty-one, 
 which date is in this Act referred to as the commencement 
 of this Act. (a) 
 
 sbort title. 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 Parlia- 
 ment, 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, (i) 
 
 (a) This section is repealed by the Statute Law Revision Act, 1894 
 (57 & 58 Vict. c. 56), First Schedule. 
 
 (6) Post, 295. 
 
CHAPTER VI 
 
 The Employees Liability Act, 1880 
 The relation of master and servant at common law, as Proposition 
 
 , - , , , , , , stating the 
 
 developed m the preceding chapters, may be stated in the oommon law. 
 following proposition : A master is not liable to any 
 servant for any injury which arises from the act or default 
 of any fellow servant, whether that fellow servant be in a 
 position of authority or not ; and, in ascertaining whether 
 the person to whose act or default the injury is due is a 
 fellow servant, the widest possible construction is given to 
 the term "common employment." (a) To this there are 
 certain exceptions. The servant is saved from the operation 
 of the general rule, and held to have his action, if he shows 
 either : 
 
 First, that the master has omitted to provide suitable Exceptions. 
 materials and facilities for the work ; or 
 
 Secondly, that the master has been in default in 
 engaging incompetent workmen through whose in- 
 competence the injury happens ; or, 
 
 Thirdly, that the master has personally been guilty of 
 the negligence that causes the injury. 
 
 In 1876 a Committee of the House of Commons was House of 
 
 Commons Com- 
 
 appointed to inquire into the legal relations of master and S^'°o™j. 
 servant with regard to injuries suffered by servants in the Liawiity. 
 course of their employment. The Committee was re- 
 appointed in the following session, and ultimately reported 
 in favour of amending the common law in two particulars : 
 
 (a) Eeport of House of Commons Committes on Employers' Liability, 
 Parliamentary Papers, 1877, vol. x. iii. 
 
132 
 
 Employers Liability Act, 1880 
 
 Chap. VI. 
 
 Amendments 
 suggested by 
 their Heport, 
 
 Fry, L.J.'s 
 criticism. 
 
 First, in order to render the master liable in cases where 
 he has delegated his authority. 
 
 Secondly, in order to narrow the doctrine of common 
 employment to those cases where each servant is an observer 
 of the conduct of the other, and can give notice of any mis- 
 conduct, incapacity, or neglect of duty, and leave the 
 service if the common employer will not take such pre- 
 cautions and employ such agents as the safety of the whole 
 party may require. 
 
 The outcome of this Report was the Employers Liability 
 Act, 1880, which we are now to consider, (a) 
 
 Fry, L.J.'s criticism of the act in Whatley v. Hollo- 
 way (h) is indubitably just : " It appears to me to be a piece 
 of legislation which does not carry into effect any one 
 simple idea, but is, on the contrary, a compromise, so to 
 speak, between two contending schemes of legislation or 
 lines of thought on the subject of the liability of a master 
 
 (o) 43 & 44 Vict. 0. 42. The Colonies have generally adopted similar 
 legislation. In Newfoundland the British Act is followed verbati/m. In 
 New South Wales the existing Act is one of the year 1897 (61 Vict. No. 
 28) ; in the Queensland Act (50 Vict. No. 24), there is a provision forbidding 
 contracts to exclude the Act ; in Victoria, an Act (50 Vict. No. 894), in terms 
 almost identical with the Act of the United Kingdom, is amended by The 
 Employers and Employes Act, 1890, No. 1087, and this is amended in 
 1891 by an Act, No. 1219. In Ontario the statute in force is 55 Vict. c. 30 
 (Ont. Bev. Stat. 1897, o. 160), which, while adopting the essential features of 
 the English Act, makes considerable additions. In New Zealand the Act 
 is 46 Vict. No. 20, and applies to Crown servants. In Quebec, the doctrine 
 of common employment, I am informed by a kind correspondent, has 
 never been a part of the law of that province. Mr. Justice Bvtrbidge, of 
 the Bxcheq[uer Court of Canada, has so decided in Eilion v. The Queen, 4 
 Ex. C. B. 134 ; Grenier ii. The Queen, 6 Ex. 0. B. 276. See also Bobinson 
 ■V. Canada Pacific By. Co., [1892] A. C. 481. In Nova Scotia " The Em- 
 ployers Liability Act " was passed in 1900. In Massachusetts too the Act 
 is a close copy of the British Act, and this has been the occasion of a 
 special rule of interpretation, that the Massachusetts Courts must assume 
 that the Legislature with the words of the English Act accepted the 
 interpretation placed on them : Byalls v. Mechanics Mills, 150 Mass. 190 ; 
 and this canon has been accepted by several other States ; Labatt, Master 
 and Servant, 1930 ; where the Acts in force in difierent States are given 
 textually. 
 
 (6) 62 L. T. 639, 640. 
 
Object of Act 133 
 
 to an employe. Every word of it represents the result of a Chap. VI. 
 conflict or struggle of thought." Its main object, accord- 
 ing to Lord Watson, (a) was " to place masters who do not 
 upon the same footing of responsibility with those who do 
 personally superintend their works and workmen by making 
 them answerable for the negligence of those persons to 
 whom they entrust the duty of superintendence, as if it 
 were their own." 
 
 The governing principle of the Act is that, in certain GovcmiDg 
 
 principle of 
 
 Circumstances, presently to be considered, a workman (6) "le Employers 
 
 ' i- J ' ^ ■' Liability Act, 
 
 " 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," where personal injury (c) is caused 
 to him in the manner indicated in the first section of the 
 Act. 
 
 It has been decided, and perhaps somewhat superfluously 
 reported, that " the relation of employer and employed " 
 must exist, and be set forth by the pursuer, to warrant 
 action under the Act ; (d) and further, " that the Act has 
 no application where a man is conducting his own business, 
 and where the fault, if any, is imputable to himself " ; (e) or 
 where the injury arises from pure accident, (/) even though 
 
 (a) Smith v. Baker, [1891] A. C. 354. 
 
 (6) Section 1. Thomas v. The Great Western Colliery Co., 10 T. L. K. 
 244. 
 
 (c) The principles determining legal responsibility for personal injury are 
 treated ante, 19 et seg[q. " The words personal injury are, it is evident 
 from the context used in their ordinary or popular sense, as meaning 
 physical injury to the person, including injuries to health, such, for 
 example, as may be caused by defective sanitary arrangements : " Spens 
 and Younger, Employers and Employed, 268. 
 
 (d) Nicolson v. Macandrew, 15 B. 854 ; Sweeney v. Duncan, 19 R. 870. 
 
 (e) Bruce v. Barclay, 17 E. 811 ; per Lord Young, 814. 
 
 (/) Callender v. The Carlton Iron Co., 9 T. L. E. 646; (C. A.), 10 
 T. L. E. 366 (H. L.). Beven, Negligence (3rd. ed.), 541, 558. 
 
134 Employers Liability Act, 1880 
 
 Chap. VI. the possibility of the occurrence of such an injury might be 
 obviated by extreme precautions, (a) 
 
 Objects of The obiect of the statute has been most diversely 
 
 the Act. > •' /. 1 ■ -1. 
 
 ^/ regarded. The most accurate estimate of Jjiff scope is that 
 Lord Young In of Lord Youuff in Morrisou v. Baird & Co., (b) where he says 
 
 Morrison c. ° 
 
 =»'«!• that the Employers Liability Act "does no more than 
 
 remove a defence, in the class of actions to which it refers, 
 which was theretofore competent, by providing that an 
 employer against whom such action is raised shall not, in 
 certain circumstances specified in the statute, be entitled to 
 plead what the common law entitled him to plead— that he 
 is not responsible to one employee for the fault of others. 
 The statute does no more then remove that defence in 
 certain specified circumstances " ; or, as it is put by 
 
 webiini). Smith, J., iu Weblin v. Ballard, (c) "That the workman, 
 
 when he sues his master under the provisions of the Act for 
 any of the five matters designated in it, shall be in the 
 position of one of the public suing, and shall not be in the 
 position a servant theretofore was when he sued his master ; 
 in other words, that the master shall have all the defences 
 he theretofore had against any one of the public suing him, 
 but shall not have the special defences he theretofore had 
 when sued by his servant." The same learned judge, in 
 the same judgment, (d) states that he regards the result of 
 this to be that " the defence of common employment, and 
 
 (a) Thomson v. Diet, 19 E. 804. 
 
 (ft) 10 B. 278; M'Avoy v. Young's Paraffin Co., 9 B. 100; Dailly v. 
 Beattie, 20 So. L. B. 92. Morrison v. Scottish Employers' Liability and 
 Accident Assurance Co., 16 B., 212, where a policy to indemnify an 
 employer for " all sums which such employer shall become liable for, under 
 or by virtue of the Employers Liability Act, 1880," was held not to render 
 the insurer liable for damages recovered in a common law action, though 
 the circumstances were such that damages might have been recovered 
 under the Act. 
 
 (c) 17 Q. B. D. 125. 
 
 (d) L. c, 125. 
 
Object of Act 135 
 
 also the defence that the servant had contracted to take Chap. VI 
 
 upon himself the known risks attending upon the engage- 
 
 ment are taken away from him [the employer] when sued 
 by a workman under the Act." To the same effect is Lord 
 Esher, M.E. : (a) « It has been suggested that this Act has tordEBher, 
 only the effect of doing away with the doctrine of the TtomasV 
 immunity ot the master from damage arising from the 
 negligence of another servant in the common employment 
 of the master. To my mind it is clear that the statute has 
 taken away from the master another defence "—that the 
 servant undertook to take all the ordinary risks incident to 
 the employment, unless they were concealed or known to 
 the master and not to the servant, (b) It is apparent, not- 
 withstanding, on consideration that the Act has not "the 
 effect of doing away with the doctrine of the immunity of 
 the master for damage arising from the negligence of 
 another servant," otherwise the limitations in sub-sections 
 2, 3, 4, and 5 of section 1 would be unnecessary ; (e) while 
 the operation of the sub-sections is to do away with so 
 much of the "doctrine," etc., as is included within their 
 scope, and the absence of any other legislation leaves what 
 is not included within them still subsisting. 
 
 As to the second alleged operation of the Act, that " it Effect on the 
 has taken away the defence from the master that the man tte workman 
 
 *^ undertook the 
 
 imdertook to take all the ordinary risks incident thereto," "^"'loj^^g^t 
 on the assumption that this is so, it is curious to note that 
 
 (a) Thomas v. Quartermaine, 18 Q. B. D. 688. 
 
 (6) Lord Esher, M.E., iu Yarmouth v. France, 19 Q. B. D. 653, 654, 
 says : " I never entertained a doubt that the Employers Liability Act does 
 not prevent the proper application of the maxim Volenti non fit injuria ; 
 and I can only say, as an excuse for the part I took in Thomas v. Quarter- 
 maine, that that doctrine had never been mentioned on the argument of 
 that case, but was for the first time suggested in the judgment of my 
 brother Bowen." 
 
 (c) McGiffin V. Pahner's Shipbuilding Co., 10 Q. B. D. 5 ; Shaffers v. 
 General Steam Navigation Co., 10 Q. B. D. 356 ; Kellard v. Kooke, 19 Q. 
 B, D, 585 ; 21 Q. B. D. 367. 
 
136 Employers Liability Act, 1880 
 
 Chap. VI. the objects laid down by the House of Commons Com- 
 mittee's Keport on the Employers' Liability specifically 
 exclude this. The suggestion was to narrow the doctrine of 
 common employment to those cases where each servant " is 
 an observer of the conduct of the other, can give notice of 
 any misconduct, incapacity, or neglect of duty, and leave 
 the service if the common employer will not take such 
 precaution and employ such agents as the safety of the 
 whole party may require." (a) 
 
 viewof ihe Morcovcr, the judgment of the majority of the Court in 
 
 majority of the -^ ' i\ iti 
 
 Court of Appeal Thomas v. Quartermaine (o) establishes that the view of 
 
 in Thomas 1). '' ^ ^ 
 
 wuartermaine. Lord Eshcr, M.E., is uot a correct reading of the Act. " An 
 Bowen, L.J. enactment," says Bowen, L. J., (c) quoting the first section, 
 " which distinctly declares that the workman is to have the 
 same rights as if he were not a workman, cannot, except by 
 violent distention of its terms, be strained into an enactment 
 that the workman is to have the same rights as if he were 
 not a workman and other rights in addition. It cannot \r\ 
 the case of a defect in the employer's works be distorted 
 into the meaning that a new standard of duty is to be 
 imposed on the employer as regards a workman which 
 would not exist as regards anybody else. If the language 
 of the section were not even so precise, the point would be 
 concluded, one might well think, by the observation that if 
 the Act had intended to prescribe some new measure of 
 duty the least one might expect would be that it should 
 define it." Fry, L.J,, adds : {d) " If the workman is to 
 have the same rights as if he were not a workman, whose 
 rights is he to have ? Who are we to suppose him to be ? 
 
 (a) These words are adopted by the Committee from the judgment of 
 Shaw, C.J., in Farwell v. Boston Ed. Corporation, 3 Maoq. (H. L. So.) 319. 
 (6) 18 Q. B. D, 685, 
 
 (c) Ibid. 692, 
 
 (d) Ibid, 700. 
 
Scope of the Act • \zi 
 
 I thiak that we ought to consider him to be a member of Chap. VI. 
 
 the public entering on the defendant's property by his 
 
 invitation. Can such a person maintain an action in 
 respect of an injury arising from a defect, of which defect 
 and of the resulting damage he was as well informed as the 
 defendant ? I think not. To such a person it appears to 
 me that the maxim Volenti non fit injuria applies." {a) 
 
 The common law doctrine may be taken from the 
 statement of Lord Esher, M.E. : (&) " Before the Employers 
 Liability Act there was this condition in the contract of 
 hiring, that, if there was a defect in the premises or 
 machinery which was open and palpable, whether the 
 servant actually knew it or not, he accepted the employ- 
 ment subject to the risk." There are, doubtless, expressions 
 by other judges, and by the same judge in other cases, 
 superficially at variance with this, which have been else- 
 where collected and considered, (c) but subject to the 
 minuter distinction there considered in full the outcome of 
 the principle is as thus stated. What, then, is the effect 
 worked by the Employers Liability Act on the principles 
 of the common law ? 
 
 We have already seen that the central conception of scope of the 
 the Employers Liability Act, 1880, is to place the work- 
 man in the same position with regard to the employer, in 
 certain enumerated circumstances, as would be held by any 
 person not in the employment suffering injury. 
 
 (a) The Supreme Court of Victoria had previously arrived at the same 
 conclusion : 35avidson v. Wright, 13 Viot. L. K. 351. The New South 
 Wales case of Simat v. Silva, 8 N. S. W. B. (Law) 415, is at common law, 
 and holds that, where a plaintiff's knowledge is equal to the defendant's, 
 the rule involved in Yolenti non fit injuria applies. There the plaintifi 
 was the engineer of a steam-tug. See, too, the Scotch cases, M'Avoy v. 
 Young's Paraffin Co., 9 B. 100; Morrisons. Baird, 10 B. 271; Bobertson 
 V. Bussell, 12 B. 634 ; and the principles noticed, ante, 7, 29. 
 
 (6) Yarmouth v. Prance, 19 Q. B. D. 653. 
 
 (c) AnU, 30. 
 
138" Employers Liability Act, 1880 
 
 Chap. VI. The consideration of the definition of a workman under 
 the Act will for the present be deferred; and before we 
 proceed to cojisider the way in which the common law is 
 affected by the Act, it is convenient to analyse somewhat 
 minntely a term that is constantly cropping up in the con- 
 sideration of the Act — " in the service of the employer." 
 
 Seetice of the Emploteb. 
 Service of the " In the scrvicc of the employer" means in the service 
 
 employer, ^ •' 
 
 at the time of the accident ; so that a man who was promised 
 a job on the following day, but came too late to take it, and, 
 while leaving the premises, was injured, was held not within 
 the words, (a) 
 
 A man who has left work and is going home, from no 
 apprehension of danger but to subserve some private end, 
 and who is injured in going, is still regarded as in the 
 service of his employer, (l) 
 
 A workman conveyed to and from his work in a " piclt- 
 up train " was injured as he was returning from his work. 
 He was none the less in the service of the employer because 
 his day's work was finished ; " for it was part of his contract 
 that he was to be carried by the train to and from the place 
 where his work happened to be." (e) 
 
 But more than this : a workman may in some circum- 
 stances be held to be in the service of the employer, though 
 the service has in fact been terminated and the workman 
 discharged ; as where a workman was discharged from work- 
 ing in a mine on Saturday night, and sustained injuries 
 
 (a) Lovell v. Charrington, 72 L. T. Newspaper 356. 
 
 (6) Brydon v. Stewart, 2 Macq. (H. L. So.) 30. 
 
 (c) Tunney v. Midland Ry. Co., L. R. 1 C. P. 291 ; cp. Rohl v. Metro- 
 politan Railway Co., 7 T. L. E. 2; and Viekery v. G. E. Ry. Co., 14 
 T. L. R. 562. 
 
Employer 139 
 
 while in the mine on the following Monday morning. His Chap. VI. 
 presence there was, however, explained by a rule that work- 
 men on being discharged were not to receive their wages 
 till they returned their tools. He was in the mine for this 
 purpose when he was injured. It was held he was in the 
 pit by reason of his employment, (a) 
 
 The question of employer or not employer is thus a who is employer 
 
 1 • It ■^ 1 1 1^ question of 
 
 question of fact ; and questions of whether workmen who &«■ 
 ' stay on the premises after working hours are there in the 
 course of the employment or not must also be solved as 
 questions of fact. 
 
 In Swainson v. North-Eastern Ey. Co., (b) Bramwell, Tests to deter- 
 
 •' mine wlio ia 
 
 L.J., intimates that in order to determine who is an employer employer. 
 there are four principal criteria which should in the first 
 instance be looked to : — 
 
 (1) Between whom is the engagement for service made? 
 
 (2) To whom does the workman look for payment of his 
 wages ? 
 
 (3) "Who has the power of discharging him ? and 
 
 (4) Whose orders is he bound to obey ? 
 
 Of these criteria the last is the most important, control. 
 Crompton, J., (c) indeed proposes as the test " whether the 
 defendant," the alleged master, "retained the power of 
 controlling the work." 
 
 In Charles v. Taylor (<i) the engagement was made 
 )etween the plaintiif and a man in the defendant's employ 
 
 (a) Cowler v. Moresby Coal Co., 1 T. L. B. 575. 
 
 (6) 47 L. J. Q. B. 372 at 375 ; cp. per Coleridge, J., Martin v. Temperley , 
 4 Q. B. D. 298 at 312. 
 
 (c) Sadler v. Henlock, 4 E. & B. 570 at 578. See per Lord Coleridge, 
 C.J., Turner v. G. E. By. Co., 83 L. T. (N. S.), at 433. 
 
 (d) 3 C. P. D. 492, 
 
140 Eviploycrs LiaUlity Act, 1880 
 
 Chap. VI. as one of a gang of " lumpers." The defendants paid one 
 of the gang, who afterwards distributed the pay among the 
 members. The defendants had the power of dismissing the 
 plaintiff. He was held to be their servant. 
 
 In Turner v. Great Eastern Ey. Co. (a) the defendants 
 neither engaged, paid, could discharge, nor had control of 
 the workman and thus he was not in their employment. 
 
 In Murray v. Currie, (6) Boyill, C.J., lays stress on the 
 " control." 
 
 In Donovan v. Laing, Wharton and Down Construction 
 Syndicate, (c) the defendants engaged the man who caused 
 the injury, paid him, had the power of discharging him, 
 but at the time of the accident had lent him to another 
 firm. As they had not the power of control they were held 
 not his employers so as to be liable. 
 
 The same elements are again to be found in Claridge 
 V. Union Steamship Co., where a similar conclusion is 
 arrived at. {d) 
 
 No evidence of If, as in Douovan V. Laing, Wharton and Down Syndi- 
 
 cate (e), the evidence is clear that the entire and absolute 
 
 (a) 33 L. T. (N. S.) 481. 
 (6) L. E. 6 C. P. 24. 
 
 (c) [1893] 1 Q. B. 629. See Jones & Sons v. ScuUard, [1898] 2 Q. B. 
 565, where Quarman v. Burnett, 6 M. & W. 499, is distinguished. Dewar 
 V. Tasker, Ltd., 23 T. L.' E. 259; Perkins v. Stead, 28 T. L. E. 433. 
 Abrahams ti. Bullock, 85 L. T. 287, was decided by Eidley, J., on his view 
 
 t : the particular facts. There was no contract to safeguard the jewellery. 
 The Court of Appeal, however, did not assent (18 T. L. E. 67), preferring the 
 common-sense view that defendant, having contracted to supply a brougham, 
 horse and man for a known purpose, was fixed with liability in respect of 
 the incidents of the contract. Though very apparently distinguishable, 
 Abrahams v. Bullock was followed by Walton, J., in Cheshire v. BaOey, 
 where the wrongful act was the felony of the driver, and was overruled by 
 the Court of Appeal, [1905] 1 K. B. 237 : the jobmaster was " not re- 
 sponsible for the consequences of the crime committed by the driver in 
 this case, which was clearly outside the scope of his employment." 
 
 (d) [1894] A. C. 185. Cairns v. Clyde Navigation Trustees, 35 Sc. 
 L. E. 808, 
 
 (e) [1893] 1 Q. B. 629. In Masters v. Jones, 10 T. L. B. 403, the 
 
Scope of Servant's Authority 141 
 
 control is with the person to whom the servant is lent, the Chap. VI. 
 
 judge may withdraw the case from the jury. If the evidence 
 
 is not clear, the onus is on the defendant to make out that 
 he has no control; and the jury have to say what the 
 agreement is, and whether the defendant has given up all 
 right of interference, (a) 
 
 In every case in which a person has been held to be in 
 control of a servant, who, for general purposes, was the 
 servant of some one else, there has been some fact or clause 
 of an agreement which led to that conclusion. (6) 
 
 Scope of Employment. 
 
 Williams J. (of New Zealand) happily expresses the 
 law : " The right to take the work out of a man's hands is 
 one thing ; the right to see that he is to continue the work 
 and direct him during its continuance is another. It is 
 only in the latter case the right to control exists, and the 
 existence of that right is the test of liability." (c) 
 
 The employer is never liable where the servant acts Employer only 
 
 ■*■ liable where 
 
 without authority — that is, without authority express or ^"j^autli'iJjity 
 implied. The cases of express authority are easy to deal 
 with. The difficulty comes in in determining whether an 
 authority is to be implied. If it is the law estops the 
 master from averring that the act is not his ; because he 
 has placed the servant in a position from which a power 
 to do similar acts would flow in natural course. 
 
 The principle of this liability is an irrebuttable pre- Principle. 
 sumption that the master authorized every act done in 
 
 question was whether tlie plaiatiS was " in the sole and exclusive service " 
 of the sub-oontractor. Op. as to the position of a man " who took work 
 from the pottery," Grainger v. Aynsley, 6 Q. B. D. 182. 
 
 (a) Oahalane v. North Metropolitan Ey. & Canal Co., 12 T. L. R. 611. 
 
 (6) Per WiUiams, L.J., Waldook v. Winfield, [1901] 2 K. B. 596 at 608. 
 
 (c) Paterson v. Fleming, 23 N. Z. L. R. 676, 709. ^ 
 
142 
 
 Employers Liability Act, 1880 
 
 Chap. VI. 
 
 Secret 
 instructions. 
 
 Willes, J., in 
 Barwick v. 
 Kngllsh Joint 
 Stocli Bank. 
 
 advancement of the master's business, pending the authority, 
 and covered by it objects, (a) 
 
 Where the servant has been lent to another employer 
 for the performance of particular work, while engaged in it 
 he ceases to affect the employer lending him with liability 
 arising out of the work for the doing of which he has been 
 lent. (6) 
 
 " The, law is not so futile as to allow a master, by giving 
 secret instructions to his servant, to discharge himself from 
 liability." (e) 
 
 The statement by Willes, J., {d) of the principle of law 
 determining the scope of employment, is classical : " The 
 general rule is, that the master is answerable for every 
 such wrong of the servant or agent as is committed in the 
 course of the service and for the master's benefit, though 
 no express command or privity of the master be proved, (e) 
 That principle is acted upon every day in running-down 
 cases. It has been applied also to direct trespass to goods, 
 as in the case of holding the owners of ships liable for the 
 act of masters abroad improperly selling the cargo. (/) 1\ 
 has been held applicable to actions of false imprisonment, 
 in cases where officers of railway companies, entrusted with 
 the execution of bye-laws relating to imprisonment, and 
 intending to act in the course of their duty, improperly 
 imprison persons who are supposed to come within the 
 terms of the bye-laws, {g) It has been acted upon where 
 
 (a) See per Kelly, O.B., in Bayley v. Manchester, Sheffield and Lincoln- 
 shire By. Co., L. B. 8 C. P. 148 at 152. 
 
 (6) Donovan v. Laing, Wharton and Down Construction Syndicate, 
 [1898] 1 Q. B. 629. 
 
 (c) Per Willes, J., Limpus v. London General Omnibus Co., 1 H. & C. 
 526 at 539. 
 
 (d) Barwick v. English Joint Stock Bank, L. E. 2 Ex. 259 at i&beteeg. 
 
 (e) See Laugher v. Pointer, 5 B. & C. 547 at 554. 
 (/) Ewbank v. Nutting, 7 G. B. 797. 
 
 {g) GofE V. G. N. Ry. Co., 3 E. & E. 672, explaining at 683, Boe V, 
 
Scope of Employment 143 
 
 persons employed by the owners of boats, to navigate them Chap. VI. 
 
 and take fares, have committed an infringement of a ferry, 
 
 or such like wrong, (a) In all these cases, it may be said, 
 as it was said here, that the master has not authorized the 
 act. It is true, he has not authorized the particular act, 
 but he has put the agent in his place to do that class of acts, 
 and he must be answerable for the manner in which the 
 agent has conducted himself in doing the business which 
 it was the act of his master to place him in." 
 
 On this Bowen, L. J., thus comments : " The true rule Bowen, l.j.'s, 
 was, it seems to me, enunciated by the Exchequer Chamber 
 in a judgment of Willes, J., delivered in the case of 
 Barwick v. English Joint Stock Bank. . . . This definition 
 of liability has been constantly referred to in subsequent 
 cases as adequate and satisfactory, and was cited with 
 approval by Lord Selborne, in the House of Lords, in 
 Houldsworth v. City of Glasgow Bank (5 App. Cas. 317). 
 Mackay v. Commercial Bank of New Brunswick (L. E. 5 
 P. 0. 394) is consistent with the principle. It is a definition 
 strictly in accordance with the ruling of Martin, B., in 
 Limpus V. London General Omnibus Co. (1 H. & C. 526), 
 which was upheld in the Exchequer Chamber (see per 
 Blackburn, J.). " (&) 
 
 Lord Herschell's summary (c) is to be added : " It Lord Hersoheii 
 cannot be disputed, as a general proposition of law, that a Manufuctur von 
 person who does not himself enter into a contract can only "• f «™e8s. 
 be made liable upon the contract if it was entered into by 
 one who was his agent or servant acting within the scope of 
 
 Birkenhead Ey. Co., 7 Ex. 36 ; and see Barry v. Midland Ey. Co., Ir. E. 1 
 C. L. 130. 
 
 (a) Huzzey v. Meld, 2 0. M. & E. 432 at 440. 
 
 (6) British Mutual Banking Ox v. Charnwood Forest Ey. Co. 18 Q. B. D. 
 714 at 717 ; George Whiteohuroh, Ltd. v. Oavanagh, [1902] A. C. 117. 
 
 (c) BaumwoU Manufaotur von Carl Soheibler v. Purness ; [1893] 
 A. C. 8 at 16. 
 
144 Employers Liability Act, 1880 
 
 Chap. VI. his authority ; and it is equally indisputable that a liability 
 by reason of a wrong or tort can only be established by 
 proving either that the person charged himself committed 
 the wrong, or that it was committed by his servants or his 
 agents acting within the scope of their authority." (a) 
 
 A preliminary difficulty may arise in identifying the 
 servant. There are several cases on this : 
 
 A bai-ge runs down a "big boat." The name of the defendant is 
 proved to be on the barge and the number belonging to the defendant's 
 barge is aBBxed in accordance with the regulations of the Waterman's 
 Company, but the man in charge of the barge cannot be identified amongst 
 the defendant's men. The plaintiff has discharged the onus upon him, and 
 has given prima facie evidence that the man in charge of the barge is 
 one of the defendant's men. (6) 
 
 Plaintiff is injured through the negligence of a shipkeeper on board a 
 ship laid up in dock for the winter. A certified copy of the ship's register 
 is given in which the defendant's name appears as owner. This (doubt- 
 fully) is prima facie enough to warrant an inference that the person in 
 actual custody is employed by the owner, (c) 
 
 An accident occurs through the negligent driving of a cart. Ther-e is 
 the name on the cart of the owner of it. This is prima facie enough to 
 charge the owner with responsibility for the accident, which may "be met 
 by showing the truth of the matter, (d) 
 
 The following propositions are submitted as epitomizing 
 the law on the liability of the employer for the tortious act 
 of his workmen : — 
 
 (a) This passage does not appear to have been cited in Hambro V. 
 Burnand, [1903] 2 K. B. 399, where Bigham, J., at 416, regards suoh a con- 
 sideration as "a loose and unsatisfactory test of the liability"; but 
 Bigham, J.'s judgment was reversed, [1904] 2 K. B. 10. 
 
 (6) Joyce v. Capel, 8 0. & P. 370. 
 
 (c) Hibbs V. Eoss, L. B. 1 Q. B. 584. 
 
 (d) Stables v. Eley, 1 C. & P. &14, as limited in Smith v. Bailey, [1891] 
 2 Q. B. 403 at 406. 
 
Scope of Servant's Authm'ity 145 
 
 Chap. VI. 
 PEOPOSITION I 
 
 The master is liable for his servaat's tortious act — Liabiuiyof 
 
 I maBter. 
 
 (1) If he expressly directs it ; 
 
 (2) If the act is subsidiary or incidental to what has 
 
 been directed. 
 
 (1) If a servant whose duty it is to sell merchandise sells an unsound Utotriitions. 
 horse or other merchandise, by direction and connivance of the master to 
 
 any particular man, if it prove unsound an action lies against the master, 
 for it is his sale, (a) 
 
 (2) A labourer is employed to lay rubbish near another man's land in 
 order to obstruct the way. He has special instructions not to let any of 
 the rubbish touch the wall on the other man's land. As the rubbish dries 
 its shingles down against the wall. Trespass is brought against the 
 labourer's employer, and held maintainable ; as the trespass alleged is the 
 natural consequence of the act ordered to be done, and as much 
 the defendant's act as if done by his express command. Q>) 
 
 PEOPOSITION II 
 
 An act done by a servant in his master's service is f„"^Je„t"u" 
 subsidiary or incidental to what has been directed — 
 
 (1) Where the object of the servant in doing the act 
 
 is the advancement of his master's interest in 
 the business committed to the servant. 
 
 (2) Where it flows as a natural result from the busi- 
 
 ness committed to the servant. 
 
 (a) Y. B. 9 H. VI., 53 6, Prop. II. 
 
 (6) Gregory v. Piper, 9 B. & C. 591. , 
 
 B.E.L, L 
 
146 Employers Liability Act, 1880 
 
 Chap. VI. (3) Where it is done at a time when the servant is 
 
 acting in the course of the business committed 
 to the servant. 
 
 lUustrationB. (1) An omnibus driver, contrary to instructions, endeavours to obstruct 
 
 the passage along tiie road of an omnibus belonging to another person. 
 In consequence the second omnibus is overturned. The employer of the 
 first omhibus driver is liable, (a) 
 
 (2) A man and his groom are riding past a waggoner who is driving 
 three horses with a waggon. As they pass the master puts his horse to a 
 trot. The groom spurs his to keep up with his master. The horse strikes 
 out and injures the waggoner. The groom is negligent in what he did, 
 and the master is liable. (6) 
 
 (3) A master selecting a coachman believed to be sober, sends him 
 out with orders to drive quietly. The coachman gets drunk, drives 
 furiously and runs over some one. The master is liable, (c) 
 
 (a) Limpus v. London General Omnibus Co., 1 H, & C. 526. 
 
 (6) North r. Smith, 10 C. B. (N. S.) 572. See. also Gregory «. Piper, 
 supra. In Graoey v. Belfast Tramway Co., [1901] 2 Ir. E. 322, the injury 
 arose from two servants racing horses on the highway. 
 
 (c) Per Blackburn, J., Williams v. Jones, 3 H. & C. 602 at 609 ; per 
 Parke, B., Quarman v. Burnett, 6 M. & W. 499 at 510; also Storey u. 
 Ashton, L. B. 4 Q. B. 476. Quarman v. Burnett is distinguished in Jones 
 & Sons V. Soullard, [1898] 2 Q. B. 565. In the evidence of Mr. E. S. 
 Wright, before the House of Commons Committee on Employers' Liability, 
 Parliamentary Papers, 1876, Vol. IX., quest. 605, the following case is 
 put : " Supposing a miner employed in a coal mine (assuming him to be a 
 servant) improperly and contrary to orders, for the purpose of lighting his 
 pipe or anything of that sort, opens his safety lamp, and there is an 
 explosion, which kills a passer-by? ". Williams v. Jones, 8 H. & C. 609, per 
 Keating, J., at 612, supplies the answer, that the mine owner would not be 
 liable ; since " the act of lighting the pipe " was not " in any way whatever 
 for the benefit of his master, or in the furtherance of the object of his 
 employment." To render the employer liable the thing done or omitted 
 by the workman, from which the liability is charged to arise, must be " for 
 the purposes of his master and in the course of his employment." The 
 decision in Croaker v. Chicago & N.-W. Ed. Co., 17 Am. E. 504, the case 
 of the liability of a railway company for the misbehaviour of a " conductor " 
 in kissing her, has been attempted to be defended on principles of English 
 law by directing attention to the large powers these officers are entrusted 
 with. But the English rule is based on the principle, not on any question 
 of degree of power or confidence. In the illustration given above if a fellow 
 servant had been with the coachman and been injured through his drunken- 
 ness the master would not be liable ; for the master does not warrant his 
 coachman to his fellow servants. His duty is only to use reasonable care 
 in selecting them. Ante, 34, 
 
■ Scope of Servant's Authority 147 
 
 Chap. VI. 
 
 PEOPOSITION III 
 
 " Business committed to the servant " includes as well Business com 
 all acts done by an indiscreet, reckless or negligent servant. 
 servant in the prosecution of the master's interests com- 
 mitted to the servant, as those acts done in direct and 
 necessary furtherance of the ends proposed by the master 
 and undertaken by the servant. 
 
 A railway porter seeing a man in a railway carriage, conceives the illustrations. 
 notion that he is wrongly there, and pulls him out. The man is right, the 
 porter is wrong. The railway company's direction is, by general order, to 
 prevent pei-sons travelling in the wrong carriage if possible, accompanied 
 by a caution not to remove them from the carriage. The company is 
 liable, (a) 
 
 The manager of a furniture business conducted on the hire-purchase 
 system sells furniture to a lodger in the plaintiff's house. On default of 
 payment he seizes the furniture and removes it. In doing so he assaults 
 the plaintiff. The employer is liable. (6) 
 
 An omnibus conductor, in the absence of the driver during the dinner- 
 hour, drives the omnibus through some by-streets and runs over the 
 
 (a) Bayley v. Manchester, Sheffield and' Lincolnshire By. Co., L. E. 
 7 C. P. 415 ; in Ex. Ch. L. E. 8 C. P. 148. See Eichards v. West Middlesex 
 Waterworks Co., 15 Q. B. D. 660 ; Whatman v. Pearson, L. E. 9 C. P. 422. 
 
 (b) Dyer v. Munday, [1895] 1 Q. B. 742. As to a partnership : Hamlyn 
 V. John Houston & Co., [1903] 1 K. B. 81. Collins, M.E., summarizes the 
 law at 85: "It is too well established by the authorities to be now dis- 
 puted that a principal may be liable for the fraud or other illegal act 
 oommitted by his agent within the general scope of the authority given to 
 him, and even the fact that the act of the agent is criminal does not 
 necessarily take it out of the scope of his authority. If the act done by 
 the agent is within the general scope of the authority given to him, it 
 matters not for the present purpose that it was directly contrary to the 
 instructions of his principal, or even that it may have been an offence 
 against society itself. The test is that which is applied to this case by the 
 learned judge. Was it within the scope of the authority given to Houston 
 to obtain this information by legitimate means ? If so, it was within the 
 scope of his authority for the present purpose to obtain it by illegitimate 
 means." 
 
148 
 
 Umployers Liability Act, 1880 
 
 Chap. VI. plaintiff. The plaintiff suing for the negligence of the defendant's con- 
 
 ductor has the onus on him to show that he was acting in the scope of his 
 
 employment ; but otherwise if he were driving in ordinary course, (a) 
 
 PKOPOSITION IV 
 
 Acts for the 
 purpose of 
 advancing the 
 master's 
 business. 
 
 Illustration. 
 
 All acts done iu carrying out the business committed 
 to the servant are counted within the scope of the employ- 
 ment though, in fact, done contrary to the express 
 instructions of the master, so long as they are done for 
 the purpose of advancing the master's business. 
 
 A quarrel arises between the men engaged on a tramcar and those 
 engaged on an omnibus. One of the former gets on the steps of the 
 omnibus to get the number. The omnibus driver whips at him to drive 
 him down. The driver's whip strikes a passenger in the eye and injures 
 him. He brings his action against the omnibus company and recovers. 
 A rule to set the verdict aside is refused, because there is a question for 
 the jury whether the omnibus driver used his whip "to protect himself 
 or his employers against a charge being brought." (6) 
 
 PROPOSITION V 
 
 Forbidden 
 consequences 
 following on 
 permitted acts. 
 
 Illustration, 
 
 The master is liable for consequences (the occurrence 
 of which he has given express instructions to guard against) 
 which result, in natural and probable sequence, from acts 
 done in the course of carrying out his orders. 
 
 See Gregory v. Piper, the facts of which are set out under Proposition 
 I, (2), (c) 
 
 (a) Beard v. London General Omnibus Co,, [1900] 2 Q, B, 530. 
 
 (6) Ward v. London General Omnibus Co., 42 L, J, C. P. 265. Kelly, 
 C.B,, thus continues the passage quoted in the text: "And though the 
 former" (i.e. that the omnibus driver's act was to protect himself) "ig 
 more probable, still the other conclusion is possible and reasonably probable, 
 and if the latter were the case, and the driver were so negligent as to hurt 
 a passenger, I think he was guilty of negligence in the performance of his 
 duty," 
 
 (c) Ante, 145, 
 
Scope of Servant's Authority 149 
 
 Chap. VI. 
 . PEOPOSITION VI 
 
 Where the servant acts wilfully and under feelings of wiifui acts in 
 irritation, but yet with the object of advancing the interests inteS'"^" ^ 
 of the employer which are committed to him, fhe employer 
 is liable for such wilful and wrongful act. 
 
 Defendant's coachman wilfully strikes plaintiff's horses With his whip ; luustratiou. 
 in consequence of which they start forward and overturn the carriage. 
 After a verdict for the plaintiff, a new trial is refused on the ground that 
 the end in view in striking the horses is the defendant's service, (a) 
 
 PEOPOSITION VII 
 The master is responsible for the negligent act of his Negligent act 
 
 ^ DO iQ course of 
 
 servant, so long only as the servant is doing the class of ^'"P'°y°'™'- 
 acts, in the doing of which he is guilty of negligence, in 
 the course of his employment as servant. If his conduct 
 excepted to is merely a roundabout way of doing his 
 master's business, the master is liable ; but if it is in 
 the prosecution of some object other than the master's 
 business, the master is not liable. 
 
 A carman having finished the business of the day returns to his Illustration, 
 employers' shop with their horse and cart, and obtains the key of the 
 stable, which is close at hand ; but instead of going there at once he drives 
 out on a journey, upon his own account, and on his way back negligently 
 drives over a man. The employers are not liable, as the carman was 
 not at the time engaged in their business. (6) 
 
 {a) Croft V. Alison, 4 B. & Aid. 590; see Seymour v. Greenwood, 
 7 H. & N. 355 ; and Ward v. London General Omnibus Co., 42 L. J. 0. P. 265. 
 
 (6) Mitchell v. Orassweller, 13 C. B. 237; followed in Storey v. Ashton, 
 L. E. 4 Q. B. 476 ; Eayner v. Mifcchell, 2 C. P. D. 857. Op. Gracey v. 
 Belfast Tramway Co., [1901] 2 Ir. R. 322. 
 
150 
 
 Employers Liability Act, 1880 
 
 Chap. VI. 
 
 PROPOSITION VIII 
 
 M^ilful trespass 
 of the servant. 
 
 Illustration. 
 
 Where the act of the servant causing injury is a wilful 
 trespass, done from private malice, or a fraudulent act and 
 without regard to the business of the employer, the employer 
 is not liable in respect of the same. 
 
 Defendant's servant wilfully drives his master's carriage against the 
 plaintitt's chaise. The defendant is not liable for the injury, (a) 
 
 A shopman having a just measure supplied him by his employer for 
 the purposes of the business has a false one made for himself so that he 
 may commit a fraud for his own gain. The employer is not liable for the 
 fraud. (J) 
 
 A shopman who, while using the measures given to him by his em- 
 ployers, makes one of the just measures into an unjust measure will affect 
 his employers with the possession of the measure so falsified, (c) 
 
 The salesman of an oil company is sent out with a tank of oil and two 
 just measures. Defective measures are stored away in a separate part of 
 the oil company's premises till they can be rectified. By the Weights 
 and Measures Act, 1878 (41 & 42 Vict. c. 49), s. 25, every person who 
 is in " possession for use for trade " of a false or unjust measure is 
 punishable. The salesman obtains one of these, which he uses to commit 
 a fraud on his own account. The oil company is not in " possession for 
 use for trade " of the defective measure, {d) 
 
 PEOPOSITION IX 
 
 Act outside the 
 employment. - 
 
 Where the act of the servant is done for the advance- 
 ment of the master, but is concerned with matters other 
 
 (a) M'Manus v. Crickett, 1 East. 107. 
 
 (6) Anglo-American Oil Co., Ltd. v. Manning, [19081 1 K. B. per 
 Channell, J., 543. 
 
 (c) Ibid. 1 K. B. per Channell, J., 543. 
 
 {d) Ibid.'[1908]lK. B. 536. 
 
Representative of Employer 151 
 
 than those entrusted to the servant by the master, the Chap, VI. 
 master is not liable in respect of the same. 
 
 An acting bank manager directs the prosecution of a person whom he lUnatration. 
 charges witli stealing a cheque belonging to the bank. The person prose- 
 cuted brings an action against the bank for tlie act of their officer. The 
 arrest and prosecution of offenders is not witliin the ordinary routine of 
 banking business, and therefore not within the ordinary scope of a bank 
 manager's authority, (a) 
 
 PEOPOSITION X 
 
 It is the duty of an employer engaged in business Emergencies. 
 either himself to be available, or to have some representa- 
 tive available and clothed with authority, to deal without 
 delay with all exigencies reasonably and probably likely 
 to arise in the course of the conduct of business. 
 
 A person is arrested for travelling on a railway without a proper Illustration, 
 ticket by an inspector of the company acting under the direction of the 
 superintendent of the station. By the Railway Clauses Consolidation 
 Act, (J) a penalty is imposed on any person travelling on a railway with- 
 out having paid his fare, with intent to defraud ; and power is given to 
 all officers and servants on behalf of the company to apprehend such 
 person. The superintendent is the person in supreme authority at the 
 station. A jury is warranted in inferring that such an officer has power 
 to act in the matter of an arrest so as to bind the company, (c) 
 
 (a) Bank of New South Wales v. Owston, 4 App. Gas. 270, where the 
 oases are considered in the judgment deUvered by Sir Montague E. Smith. 
 See per Lord Esher, M.B., in Abrahams v. Deakin, [1891] 1 Q. .»■ .flo »' 
 521 ; Beard v. London General Omnibus Co., [1900] 2 Q. B. 530 ; Gillespie 
 «. Hunter, 35 So. L. B. 71. Post, 151. 
 
 (6) 8 & 9 Vict. u. 20, ss. 103, 104. 
 
 (c) GofE V G. N. By. Co., 3 B. & E. 672 ; followed Moore v. Metro- 
 politan By. Co., L. B. 8 Q. B. 36 ; Edwards v. Midland By. Co., 6 
 Q. B. D. 287. 
 
Chap. VI. 
 
 152 Employers Liability Act, 1880 
 
 PEOPOSITION XI 
 
 Act not lawful An employer is not liable for the act of his servant 
 
 employer. where the act, in respect of which he is sought to be made 
 
 liable, is one which, although professedly done in the 
 employer's interest and under his authority, could not 
 lawfully be done by the employer, and is one for the 
 doing of which the employer has given no express 
 authority. 
 
 Illustrations. A station-master in the employment of a railway company takes a 
 
 person into custody, alleging that he has not paid the fare for a horse that 
 has been carried on the railway. By statute (a) there is authority to 
 arrest and detain any person travelling on the railway without payment of 
 the fare. In the case of goods not paid for, the only power is to detain 
 them. As then the station-master's employers have no power to arrest, 
 there can he no authority implied from them for him to do so. (b) 
 
 An officer expressly appointed to watch property takes an innocent 
 person into custody on the charge of stealing to vindicate the law. His 
 employers are (probably) liable, (c) 
 
 A barman is superintending the delivery of mineral waters into the 
 cellar of the public house where he is employed under a manager. The 
 manager, in the mistaken belief that the barman is using the occasion to 
 remove whisky from the cellar, gives him into custody. The owner is not 
 liable for the manager's act. (dl) 
 
 (a) 8 & 9 Viot. 0. 20, ss. 103, 104. See Statute Law Revision Act, 
 1892 (55 & 56 Vict. o. 19), Sohed ; and also the Regulation of Railways Act, 
 1839 (52 & 53 Viot. u. 57), s. 5. 
 
 (b) Poulton V. L. & S.-W. Ry. Co., L. R. 2 Q. B. 534 ; Charleston v. 
 London Tramways Co., 4 T. L. R. 157 (C. A.) at 629. See also Bolingbroke 
 V. Swindon Local Board, L. R. 9 C. P. 575. 
 
 (c) See per Brett, J., Edwards v. L. & N.-W. Ry. Co., L. R. 5 C. P. 
 445 at 451. 
 
 (d) Hanson v. Waller, [1901] 1 K. B. 890,' citing Jones v. Duck, The 
 Times newspaper, 16th March, 1900, where Smith, L.J., is reported to have 
 said that " the cases showed that a servant had an implied authority to 
 give a person into custody if it was necessary to do so in order to protect 
 the master's property. But that does not apply here, because the master's 
 property was safe before the plaintifE was given into custody. The cases 
 also showed that a servant might have such an implied authority derived 
 from the exigency of a particular occasion." 
 
Servant's Implied Authority 153 
 
 Chap. VI. 
 PEOPOSITION XII — 
 
 A servant has no implied authority to take steps forNoimpued 
 
 -^ authority to 
 
 the punishment of a person whom he supposes to have servant to 
 
 ■■ ■•■ ■*■ ^ vindicate 
 
 done some wrong to his master's property, when the^"'"™' 
 property itself is safe and the object in view is not its 
 preservation but the vindication of justice. 
 
 A man takes a ticket at one of the stations of a railway company. Illustrations. 
 He tenders in payment a two-shilling piece. Among the change handed 
 to him is a French two-sous piece, which the man refuses to accept and 
 the hooking-clerk to take back. The man then reaches over the counter 
 to put his hand into a bowl containing copper coin. The booking- 
 clerk seizes him, calls a policeman who takes the man to the station, and 
 there he is looked up for the night. The act of the booking-clerk does 
 not render his employers liable, (a) 
 
 A man tenders in payment non-current coin at a public-house bar. 
 It is refused, taken back, and legal tender substituted. The man leaves 
 the bar, is followed by the manager of the establishment, and given into 
 custody on a charge of attempting to pass bad money. The proprietor of 
 the public-house is not liable for his manager's act. (6) 
 
 PEOPOSITION XIII 
 
 When a servant has reasonable grounds for believing im^iud ^^ 
 that property of his master entrusted to his custody has p""*"' property. 
 been wrongfully taten therefrom, he may detain a person 
 whom he reasonably suspects as the wrongdoer, in order 
 to regain possession of the property ; or to retake posses- 
 sion of the property. If he acts he must not be guilty 
 of unnecessary violence. 
 
 (ffl) Allen V. L. & S.-W. Ey. Co., L. B. 6 Q. B. 65. See Knight jj. North 
 Metropolitan Tramways Company, 14 T. L. B. 286. 
 
 (6) Abrahams v. Deakin, [1891] 1 Q. B. 516 ; followed in Stedman v. 
 Baker & Co., 12 T. L. K. 451 ; Hanson v. Waller, [1901] 1 K. B. 390. 
 
Chap. VI. 
 
 lUuBtratioDS. 
 
 154 
 
 Employers Liahility Act, 1880 
 
 Eabbits are wrongfully started and killed on the land of a landowner. 
 They are then conveyed in bags to a railway station, there to be delivered 
 to a purchaser from the wrongdoer. At the station the servants of the 
 landowner take possession of them on his behalf and as his property. 
 The servants are justified in doing so. (a) 
 
 A man is charged with stealing a railway ticket. The ticket clerk 
 and station-master have reasonable grounds for believing the man charged 
 had abstracted it and is retaining it. They detain the man in order to 
 regain possession of the ticket. They have implied authority to do so. (6) 
 
 PKOPOSITION XIV 
 
 No double 
 recovery. 
 
 Where injury has been occasioned by an act of the 
 servant acting within the scope of his employment, either 
 the master can be rendered liable or the servant ; but not 
 first one and then the other. They may be jointly pro- 
 ceeded against. 
 
 Illustration. A cabman is injured through the furious driving of an omnibus 
 
 driver. The driver is summoned, fined, and ordered to pay compensation 
 to the cabman under 6 & 7 Vict. c. 86, sec. 28. The cabman subse- 
 quently brings an action against the omnibus driver's employers. He is 
 not entitled to maintain it. (c) 
 
 (a) Blades v. Higgs, 11 H. L. 0. 62. 
 
 (6) Van De Eynde v. Ulster By. Co., 5 Ir. K. C. L, 6, 328; i)er 
 Monahan, C.J., Pigot, C.B., and Lawson, J. 
 
 (c) Wright V. London General Omnibus Co., 2 Q. B. D. 271. In Brins- 
 mead v. Harrison, L. E. 7 0. P. 547, the Ex. Ch. held that a judgment in 
 an action against one of two tort feasors is a bar to an action against the 
 other for the same cause. In Merryweather v. Nixan, 8 T. B. 186, it was 
 held that if A recover in tort against two defendants and levy the whole 
 damage on one, that one cannot obtain contribution from the other. This 
 was qualified in Adamson v. Jarvis, i Bing. 66, by the statement that the 
 rule " is confined to cases where the person seeking redress must be pre- 
 sumed to have known that he was doing an unlawful act." See also 
 Palmer v. Wick and Pulteney-Town Steam Shipping Co., [189i] A. C. 318, 
 and the statement, made there, explained in The Englishman and The 
 Australia, [1895] P. 212 at 216. The Frankland, [1901] P. 161. 
 
Criminal Liability 155 
 
 Chap. VI. 
 PEOPOSITION XV — 
 
 An employer is not criminally liable for the act of his criminal 
 
 IT.. , liability. 
 
 servant, unless he is made so — 
 
 (1) By Statute (a) ; or 
 
 (2) By reason of the act of the servant being obviously 
 
 the act of the master ; or 
 
 (3) Where he is an accessory. 
 
 (1) A master baker has two establishments. At one a foreman illustrations, 
 manages the business. The foreman uses alum in making the bread, con- 
 trary to the Statute 36 Geo. III. c. 22, sec. 3. (i) He states that his 
 master does not know of the use of the alum ; but considerable doubt is 
 thrown upon this statement. The master is liable for the act of his 
 foreman, (c) 
 
 Smuggled tobacco is detected concealed in a cellar. A servant in his 
 master's absence procures a permit by which he intends to protect the 
 goods from seizure. The master is liable for the penalty attached to the 
 offence of unduly using a permit, (d) 
 
 Daring the absence of his master, the licensed occupier of a slaughter- 
 house, his foreman in direct disobedience of his orders slaughters a sheep 
 in the pound in view of other sheep. IJnder by-laws made in pursuance 
 of the Slaughterhouses Act, 1874, (e) the master is criminally liable. (/) 
 
 (a) " It is a general principle of law that a man is not liable to be 
 indicted crimimilly for the act of his servant ; " see Woodgate v. Knatch- 
 bull, 2 T. E. 148, per Ashhurst, J. : " but a particular Statute may impose 
 this liability upon him by its express terms or by impUcatidn ; " per 
 Collins, J., Hardcastle v. Bielby, [1892] 1 Q. B. 709 at 712. 
 
 (6) Eepealed by the Statute Law Revision Act, 1861. 
 
 (c) The King v. Dixon, 3 M. & S. 11. This decision was rather on the 
 ground that the master had authorized the use of alum, which the Statute 
 showed to be a deleterious ingredient, and he would therefore be answer- 
 able if the servant used it in excess. 
 
 (d) A.-G. V. Siddon, 1 Tyr. 41 ; see Mullins v. Collins, L. E. 9 Q. B. 
 292 ; Oundy v. Le Cocq, 13 Q. B. D. 207 ; and Coppen v. Moore (No. 2) 
 [1898] 2 Q. B. 306; Emary v. NoUoth, [1903] 2 K. B. 264; Boyle v. Smith, 
 [1906] 1 K. B. 432 ; Anglo-American Oil Co. v. Manning, [1908] 1 K. B. 537. 
 
 (e) 37 & 38 Vict. u. 67, s. 4. repealed by Public Health (London) Act, 
 1891, s. 142, sub-Si 1 ; but by-laws made thereunder are validated by s, 142, 
 sub-s. 2 (b). 
 
 (/) CoUman v. Mills, [1897] 1 Q. B. 396, where the cases are cited. 
 
156 Employers Liability Act, 1880 
 
 Chap. VI. (2) The servant of a bookseller sells an indecent book from his 
 
 master's stock. The sale is presumed to be the act of the master, (a) 
 
 A barman supplies drink to a constable on duty. The publican is 
 liable. (S) 
 
 (3) It is obvious that the master is none the less liable as an accessory 
 to a crime because he is in the relation of master to his accomplice, than 
 he would be if no. relation of master and servant existed, (e) 
 
 We are now in a position to start a detailed considera- 
 tion of the bearing on the common law of the Employers 
 Liability Act, 1880. 
 
 I. Defect in Condition, {d) 
 
 I. Workman to The Workman is to be in the same position as " if the 
 
 theinju^ is*^^ Workman had not been a workman of, nor in the service of, 
 in the condition the cmplover, nor engaged in his work" (e) — in other 
 
 of ways, works, r J ' a a \ i 
 
 maoiiinery, or words, hc is to be in the same position as if he were a 
 
 plant, etc. ' ^ 
 
 licensee (/) — where the injury is caused "by reason of 
 
 (a) Per Pollock, B., Eoberts v. Woodward, 95 Q. B. D. 412 at 415. In 
 Hex V. John Almon, 20 How. St. Tr. 838, Lord Mansfield said : " I have 
 always understood, and take it to be clearly settled, that evidence of a 
 public sale, or public exposal to sale, in the shop, by the servant, or any- 
 body in the house or shop, is sufficient evidence to conviot the master of 
 the house or shop, though there was no privity or concurrence in him, 
 unless he proves the contrary, or that there was some trick or collusion." 
 
 (6) Cundy v. Lecocq, 13 Q. B. D. 207 ; Sherras v. De Butzen, [1895] 
 1 Q. B. 918, where Wright, J., admirably summarizes the law. There is a 
 presumption that mens rea is an essential ingredient in every offence. 
 This presumption may be displaced (1) by the words of the statute 
 creating the offence ; (2) by the subject-matter with which it deals ; both 
 points of view are to bo considered. The principal exceptions are — 
 
 (a) Acts which are not criminal in any real sense, "but are acts 
 which in the public interest are prohibited under a penalty ; " 
 
 (b) Acts which are public nuisances ; 
 
 (o) Acts dealt with under criminal procedure which is in reality only 
 a summary mode of enforcing a civil report ; e.g. unintentional 
 trespass in pursuit of game : Morden v. Porter, 7 ,0. B. (N. S.) 641 ; 
 
 and see previous note ; also an article in 105 L. T. newspaper 219 ; Korten 
 V. West Sussex County Council, 19 T. L. B. 354. 
 
 (c) Poster, Cr. Gas. 125. Cp. Brown v. Foot, 61 L. J. M. C. 110. 
 
 (d) Ante, 124. 
 
 (e) S. 1, sub-s. 1. Ante, 124. 
 
 (/) Thomas v. Quartermaine, 18 Q. B. D., per Bowen, L.J., 693. Post, 
 292. 
 
Defect in Condition 157 
 
 any defect in the condition of the ways, works, machinery, Chap. VI. 
 
 or plant connected with or used in the business of the 
 
 employer," where the defect arose from or had not been 
 discovered or remedied owing to : 
 
 1. The negligence of the employer, {a) 
 
 2. The negligence 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." (h) 
 
 The effect of sub-sec. 1 of sec. 2 is to require negligence 
 of either of these persons to be shown as a condition to 
 making sub-sec. 1 of sec. 1 applicable, (c) This clause has, to 
 quote Bowen, L.J. {d), " in the plainest language provided 
 that the master is not to be liable unless for defects that 
 arise through or have remained undiscovered or unremedied 
 owing to the negligence of the employer or his other 
 servants ; or, in other words, there must have been a breach 
 of duty before any action will lie." 
 
 The employer is bound independently of the Employers common law 
 Liability Act to guard the workman against his own 
 personal default, and to see that ways, works, machinery 
 or plant used in the ordinary course of the workman's 
 employment are in proper condition, (e) 
 
 An effect of the words of the Act is that, although there Effector words 
 
 10. tll6 BUD' 
 
 is a common law right of action against the employer, an =«=*'™- 
 action against him may, by virtue of them, be brought 
 under the Act in a County Court where more than £100 
 damages is claimed, and thus both master and servant are 
 
 (o) Ante, 125. 
 
 (6) S. 2, sub-3 . 1. See Thomas v. The Great Western Colliery Co., 
 T. L. R."244. Aiite,125. 
 
 (c) See Chapter III., Negligence. Ante, 49. 
 
 (d) Thomas v, Quartermaine, 18 Q. B. V. 683 at 693. 
 
 (e) See Props. III., et «e22-' Chapter II. Ante, 21. 
 
158 
 
 Employers Liability Act, 1880 
 
 Chap. VI. 
 
 Mr. Spens' 
 view. 
 
 Criticised. 
 
 saved the longer and more expensive procedure in the High 
 Court. , . . - 
 
 It must be noted, however, 1;bat an action could not be 
 brought in these circumstances for damages to a greater 
 amount than the estimated earnings of a person in the 
 same grade as the plaintiff for the period of three jears 
 preceding the injury, (a) 
 
 Consequently, notwithstanding this operation of the 
 section, it will be most advantageous, in the case of serious 
 injury sustained through the personal negligence of the 
 employer, to bring the action at common law, where the 
 amount of damages that may be awarded is unrestricted. 
 
 Mr. Spens (J) disputes this intention of the Legislature 
 in enacting these words, since they are inapplicable in 
 the Scotch procedure. Their operation, however, in the 
 way stated above, now they are inserted, is plain. Still, 
 this does not preclude another operation. Mr. Spens is 
 of opinion that the words were inserted with reference to 
 sub-sec. 3 of sec. 1 (c), which provides that the workman 
 shall not recover if he fail to give notice to the employer, 
 or some person superior to himself, of any defect or negli- 
 gence which caused his injury, unless he was aware that the 
 employer or superior knew thereof. Their effect would then 
 be to prevent the employer setting up the defence that the 
 workman was working in face of a known danger. 
 
 This contention, though countenanced by the judgment 
 of A. L. Smith, J., in Weblin v. Ballard {d), is opposed to 
 
 (a) S. 3. Ante, 126. 
 
 (6) Employers and Employed, 183. 
 
 (c) Ante, 126. 
 
 (d) 17 Q. B. D. 122 at 125 : " The defence of contributory negUgence 
 is still left to the employer ; but the defence of common employment and 
 also the defence that the servant had contracted to take upon himself the 
 known risks attending upon the engagement, are taken away from him 
 when sued by a workman Under the Act." 
 
Negligence of Employer 159 
 
 the decision of the Court in Thomas v. Quartermaine, where Chap. VI. 
 
 Bowen, L. J., expresses the view that so far as it is so, " I 
 
 think Weblin v. Ballard ought to be overruled." (a) 
 
 Notwithstanding this, Mr. Spens is still of opinion that 
 the view expressed by him " would receive effect in 
 Scotland." (b) 
 
 The words " owing to the negligence of the employer " 
 may not improbably have crept into the Act by reference 
 to the words of sub-sec. 1 of sec. 1. (e). 
 
 To give a right of action it is moreover necessary to Defect. 
 show a defect in some of the specified appliances. In 
 Heske v. Samuelson, (d) Lord Coleridge, O.J., suggests, as 
 a teat of a defect in the condition of the thing complained 
 of, the question whether it " was not in a proper condition 
 for the purpose for which it was applied." This was 
 adopted by the Court of Appeal in Cripps v. Judge, (e) 
 Thus, where a crane was used to tear up sleepers, and injury 
 resulted, there was held to be defect in the condition of 
 the machine. (/) 
 
 In Walsh v. Whiteley, (g) the county court, judge had waisho. ' 
 
 ^VhitBlcv 
 
 left it to the jury to say whether there was in fact a defect 
 
 (a) 18 Q. B. D. 685, I.e. at 699. 
 
 (6) Employers and Employed) Addenda et Errata. 
 
 (c) Ante, 124:. 
 
 (d) 12 Q. B. D. 30. The facts in Murray v. Merry, 17 E. 815, are some- 
 what similar, though the conclusion is difierent. Corcoran v. East Surrey 
 Iron Works, 5 T. L. R. 103, where a trolley " was in the usual form, and 
 it was admitted that there was no danger if the stanchions were packed as 
 usual." Hamilton Bridge Co. v. O'Connor, 24 Can. S. C. R. 598 ; Finlay 
 V. Miscampbell, 20 Ont. R. 29. 
 
 (e) 13 Q. B. D. 583. 
 
 (/) Welsh V. Moir, 12 R. 590. Op. Bacon v. Dawes, 3 T. L. R. 557. 
 
 {g) 21 Q. B. D. 371. Smith v. Harrison, 5 T. L. R. 406. Cp. Morgan 
 V. Hutchings, 6 T. L. R. 219, and the comment on the decision, post, 166 and 
 176. In Scotland the pursuer, must aver specifically in what respect the 
 ways, works, etc., are insufi&oient or defective : Watersonu. Murray, 21 Sc. 
 L. R. 695. Op. McCloherty v. The Gale Manufacturing Co., 19 Ont. App. 
 117 ; Southern Pacific Co. v. Seley, 152 U. S. (45 Davis) 145. 
 
160 Employers Liability Act, 1880 
 
 Chap. VI. in the condition of the machine — a carding machine, the 
 disc of the wheel of which was not solid throughout (had 
 the disc been solid the accident could not have happened) 
 — telling them that to be defective it must be such as a 
 reasonable, careful, experienced man, reasonably careful of 
 the safety of his workmen, would not use. The jury found 
 a defect, and on appeal, the Divisional Court were divided. 
 View of Lord In the Court of Appeal, Lord Esher, M.E.'s. view was : (a) 
 
 Esher, M.R. tftf ' ' w 
 
 " The true question seems to me to be whether the machine 
 is dangerous, and whether a careful consideration would show 
 it to be dangerous to the workman using it. I am prepared 
 to say that if a careful consideration would show a master 
 that the machine was dangerous to the workman using it, 
 even although that machine could not be improved upon, it 
 is negligence on the part of the master to use for his profit 
 a machine which is dangerous to his workman, and, if he 
 does use it, he can only do so upon the terms of being liable 
 to pay compensation to the workman, if he is thereby 
 injured." 
 Judgment of tie The majority of the Court (Lindley and Lopes, L.J J.) 
 the Court. jjei(j tiiat . (^) « There must be a defect implying negligence 
 in the employer. The negligence of the employer appears 
 to be a necessary element without which the workman is 
 not to be entitled to any compensation or remedy. It must 
 be a defect in the condition of the machine, having regard 
 to the use to which it is to be applied or to the mode in 
 which it is to be used. It may be a defect either in the 
 original construction of the machine, or a defect arising 
 from its not being kept up to the mark, (c) but it is essential 
 
 (a) 21 Q. B. D. 376. 
 
 (6) Lx. 378. 
 
 (c) As an instance how judicial interpretation differs sometimes from 
 the legislative conception of a measure, the following qiiotation from the 
 Times newspaper report of the discussion in the House of Commons Com- 
 mittee on the Employers' Liability Bill, under date August 4, 1880, may 
 
Act postulates Negligence l6l 
 
 that there should be evidence of negligence of the employer, chap. VI. 
 
 or some person in his service entrusted with the duty of 
 
 seeing that the machine is in proper condition." 
 
 The effect of adopting the principle contended for by i.ord_Esher, 
 Lord Esher, M.B., would, using an illustration given by considered. 
 Lopes, L..J.,(a) involve the consequence that giving a 
 workman " an ordinary sharp knife " with which he 
 managed to cut himself would import liability. Apart 
 altogether from the argumentative reductio ad absurdum, 
 the Act, as we have seen, requires negligence either of the 
 employer or of a supervisor in his employment. (6) In 
 the opinion of Lord Esher, M.E., the use of a dangerous 
 machine is equivalent to negligence, and the question of 
 negligence is for the jury. This, at least, is not the 
 common law; by which, "all that the master is bound to 
 do is to provide machinery fit and proper for the work, 
 and to take care to have it superintended by himself or by 
 his workmen in a fit and proper manner." (c) The matter 
 for the consideration of the jury is not whether the 
 machinery is dangerous, and therefore defective ; but whether 
 the machinery, even if dangerous, is " fit and proper for the 
 
 be noted : " Lord B. Churchill aaked whether a farmer would be liable if 
 his servant were injured while riding a horse which, to the knowledge of 
 the owner, was afflicted with nervous disease, or disease in the foot. The 
 Solicitor-General (Sir P. HeracheU) said the employer in that case would 
 not be liable, as the disease would not have arisen from his neglect." 
 
 (a) 21 Q. B. D. 379. This consequence is accepted by Wills and 
 Wright, JJ., Hindle v. Birtwistle, [1897] 1 Q. B. 192, interpreting the ■ 
 words " all dangerous parts of the machinery " in s. 6, sub.-s. 2, of the 
 Factory and Workshop Act, 1891 (54 & 55 Vict. c. 75). 
 
 (6) S. 2, sub-s. 1. 
 
 (c) Per Lord Wensleydale, Weems v. Mathieson, i Macij. (H. L. Sc.) 
 227; Ovington v. M' Vicar, 2 Macph. 1066 ; Macfarlane v. Thompson, 12 B. 
 232. Ante, 26. In Howson v. Barrett, 4 T. L. E. 449 (0. A.), the Lord 
 Chancellor propounded the question whether machinery which had been 
 safely used for three years could be called defective. The point, however, 
 was not decided, the case turning on the facts, though an absolute obliga- 
 tion to have the best machinery was negatived. Absence of an accident 
 may be equally consistent with fortunate negligence as with unfortunate 
 diligence. 
 
 B.E.L. M 
 
162 
 
 Employers Liahilily Act, 1880 
 
 Chap. VI. work," and is properly superintended. " Defective " is not 
 inclusive of " dangerous " at common law. What ground, 
 then, exists for putting a different meaning on the term 
 under the Act ? for nowhere is there any different meaning 
 given to it by the Act, and nowhere in the Act is the word 
 used in a sense inconsistent with its accustomed usage. 
 
 Defect and 
 
 defective 
 
 condition. 
 
 McGilHn V. 
 Palmer's Shlp- 
 buLding Co. 
 
 In McGilfin v. Palmer's Shipbuilding Co. (a) the 
 question arose whether the Act drew a distinction between 
 a " defect " merely and a " defect in the condition " of the 
 ways, etc. A workman was employed in the defendant's 
 ironworks to take puddled iron, while at a white heat, upon 
 a two-wheeled hand-car along an iron-plate roadway to a 
 steam-hammer. While so engaged the car struck against a 
 piece of substance, used for lining the furnaces, which had 
 got upon the roadway; some of the iron fell upon the 
 workman, who was killed. The Court (Field and Stephen, 
 J J.) held that this was not "a defect in the condition of 
 the way." " A defect," said Stephen, J., (b) " in the 
 machinery would be the absence of some part of the 
 machinery, or a crack, or anything of that kind. A defect 
 in the condition of the way, or works, or machinery, or 
 plant is certainly wider, but I do not think it is very much 
 wider. It means, I should be inclined to say, such a state 
 of things that the power and quality of the subject to 
 which the word ' condition ' is applied are for the time 
 being altered in such a manner as to interfere with their 
 use. For instance, if the way is made to be muddy by 
 water, or if it is made slippery by ice, in either of these 
 cases I should say that the way itself is not defective, but 
 the condition of the way, by reason of the water which is 
 
 (a) 10 Q. B. D. 5. Cp. Thomas v. Quartermaine, 17 Q. B. D., per 
 Wills, J., 417 ; also Pratt v. Inhabitants of Weymouth, 147 Mass. 245. 9 
 Am. St. B. 691. ' 
 
 (b) 10 Q. B. D. 9. 
 
Defect in Condition 163 
 
 incorporated with it, or from its being in a freezing state, chap. vi. 
 
 is affected." Or, as Field, J., said with regard to the same 
 
 illustration : (a) " That would be a defect in the condition 
 of the way, because the way is the thing which people walk 
 upon, and the thing itself is actually altered." 
 
 The Scotch case of Mitchell v. Coats Iron and Steel Mitchcu r. 
 
 , Coats Iron and 
 
 Co., (o) m which McGriffin's case was cited, seems to lean s'eei co. 
 to a different view ; for the employer was held liable for an 
 injury arising through a bar of iron projecting over the way 
 where the injured man was. The Lord Justice-Clerk 
 (MoncreifQ, however, said : " We have had difficulty and 
 some difference of opinion in arriving at a decision in the 
 present case. But on the whole matter we are not inclined 
 to disturb the judgment of the sheriff." So that in any 
 view the decision is not of high authority. The subsequent 
 case of M'Quade v. Dixon (c) leaves the point open ; for M-quade ». 
 there the decision is that when an obstruction is taken off 
 and put by the side of a way, and there causes injury, the 
 employer is not liable, {d) The distinction between the 
 two cases is that, in the case where liability was held to 
 exist, the obstruction was on the way ; in the other case 
 only hy the side of it. (e) 
 
 The Court of Appeal, in Thomas v. Quartermaine, (/) Thomas «, 
 
 Quartermaine. 
 
 seems to have assumed that there was a defect in the 
 
 (a) Ibid., 8. 
 
 (6) 23 Sc. L. B. 108. 
 
 (c) 24 Sc. L. E. 727. 
 
 (d) L.C., see per Lord Young, 728. 
 
 (e) In the English case of Wood v. Dorrall, 2 T. L. R. 550, the injury 
 was caused by the absence of a rail to a staircase, which left an opening 
 through which the plaintiff fell ; this was held to be a defect in the con- 
 dition of the way ; and rightly, since the sides are as much part of the way 
 as the ground. Spens and Younger, Law of Employer and Employed, 200, 
 are of opinion that the decision in Miohell v. Ooats Iron and Steel Co., 23 
 So. L. B. 108, "must be held in Scotland to overrule the judgment given 
 in the case of McGiffin." 
 
 (/) 18 Q. B. D. 685. 
 
164 Employers Liahility Act, 1880 
 
 Chap. VI. condition of the works there, (a) The difficulty in the case 
 arose from the operation of sec. 2, sub-sec. 1. A boiling 
 vat and a cooling vat were placed in the same room in the 
 defendant's brewery. A passage only three feet wide in 
 one part ran between them, the rim of the cooling vat 
 rising sixteen inches above the passage. In endeavouring 
 to get a board, used as a lid, from under the boiling vat 
 and which stuck, a man gave an extra jerk, the lid came 
 away suddenly, and he fell back into the cooling vat, which 
 was filled at the time with scalding liquid. In the 
 Divisional Court, however, Wills, J., says : (6) " I can see 
 no evidence of any defect in the condition of either ways 
 or plant. The way as a passage or gangway was safe 
 enough, and as far as appears wide enough for any 
 legitimate use it could be put to as a way. There was no 
 defect in the vat as a vessel to hold liquor to be cooled. 
 The defect, if defect there were, was not in the way, con- 
 sidered as a way, nor in the vat, considered as a vat, but 
 in the proximity of the vat to the place where a piece of 
 board was kept, which piece of board stuck by some 
 accident when required for use." This the learned judge 
 held was not within the test prescribed in Heske v. 
 Samuelson (c) and Cripps v. Judge, {d) 
 
 A workman tripped over something on the floor while 
 in the course of his business passing an aperture to a stair- 
 case which was left unprotected, (e) He fell down the stair- 
 case and was injured. The Divisional Court refused to set 
 aside the County Court judge's finding that there was a 
 defect in the condition of the way. 
 
 (a) This was because the County Court judge before whom the case was 
 tried in the first instance had held that there was a defect in the condition 
 of the works ; " and therefore if there is any evidence on which the 
 findings of the learned judge can be supported they must stand good " ; per 
 Lord Esher, M.B., I.e. at 687. See also per Fry, L.J., at 703. 
 
 (h) 17 Q. B. D. at 417. (c) 12 Q. B. D. 30. 
 
 (d) 13 Q. B. D. 583. Ante, 159. (c) Wood v. Dorrall, 2 T. L. E. 550. 
 
Defect in Conditimi 165 
 
 In Sanders v. Barker {a) the slackness of the wheel of a Chap. VI. 
 
 pump in a brewery, which needed a slight touch to set it 
 
 going when the steam was turned on, was held a defect. 
 This case, however, turned more on the point indicated by 
 Lord Coleridge, C.J.'s inquiry : " Is there any case in which 
 the workman having pointed out the danger and asked that 
 it should be remedied, the employer has been held not 
 liable?" 
 
 Wallace v. Culler Paper Mills (6) is referable to the waiiacc ». cuitcr 
 same principle. There a man was killed while pointing out 
 a defect in a calender machine of which he had previously 
 complained. The Scotch Court followed Smith v. Baker ; (c) 
 as also did the Divisional Court in Stanton v. Scrutton & 
 Co., (S) where the precise point decided was that " the 
 absence in the machinery of any sufficient safeguard against 
 such a probable occurrence as a slip in the management of 
 the machinery is a 'defect,' " "and if an injury arises from 
 such slip it was to be attributed to that defect." 
 
 Want of instruction in the use of a dangerous machine 
 does not constitute a defect in the condition of the 
 machine, (e) 
 
 In England, McGiffin's case was followed in Pegram v. Pegram ». 
 Dixon; (/) and it must be taken that the defect in the 
 condition of any of the specified particulars must be of a 
 permanent or jMasi-permanent nature. 
 
 (a) 6 T. L. E. 324. 
 
 (6) 19 E. 915 ; Wilson v. Love, 35 So. L. E, 223. 
 
 (c) [1891] A. C. 325. 
 
 (d) 62 L. J. Q. B. 405 ; 9 T. L. E. 236. 
 
 (e) Greenwood v. Greenwood, 24 T, L. E. 24. 
 
 (/) 55 L. J. Q. B. 447, the case of a boy throwing a board down an 
 opening through which workmen ascended to the upper portion of a build- 
 ing, the opening having been previously used for the purpose. See Conway 
 V. Clemenoe, 2 T. L. E. 80 ; Ayres v. Bull, 5 T. L. E. 202. 
 
166 
 
 Employers Liahility Act, 1880 
 
 Chap. VI. 
 
 Willctts I 
 Watt. 
 
 Morgan v. 
 Uutcbins. 
 
 This is pointed out by the Court of Appeal in Willetts v. 
 Watt, (a) A way was constructed to serve a twofold purpose. 
 Its usual function was to serve for purposes of passage ; when, 
 however, a lid was removed in the surface there was a well 
 or catch-pit disclosed. The construction was proper for both 
 purposes. It was accordingly held by the Court of Appeal 
 that an accident arising from a workman falling down the 
 well did not arise from " defect in the condition of the way," 
 but rather from a negligent user of it. " It appears to me," 
 said Fry, L. J., Cb) " that the language of sub-sec. 1 points to 
 a defect of a chronic character and not to a defect arising 
 from negligent user, and that view is supported by the judg- 
 ment of the majority of this Court in Walsh v. Whiteley, (c) 
 where a defect of condition is contrasted with negligent 
 user." In the particular case of Willetts v. Watt (d) the 
 plaintiff was unable to avail himself of this alternative 
 stating of his cause of action, since the particulars were 
 limited to sec. 1, sub-sec. 1. 
 
 Under sec. 1, sub-sec. 1, it was held, in Morgan v. 
 Hutchins, (e) that the fact that a machine is dangerous, that 
 is " defective with regard to the safety of the workman " who 
 used it, is a " defect in the condition of the machinery " 
 
 (a) [1892] 2 Q. B. 92. Op. Moore v. Boss, 17 R. 796, where Lord 
 M'Laren, 799, speaMng of " known danger," says : " One class of cases of 
 this sort is where the master by the adoption of some known and suitable 
 appliance may diminish the danger to his servants, and does not adopt it ; 
 in such oases, the rule of the statute as to injuries resulting from defects 
 in the ways, works, or plant will probably apply. But the other class of 
 cases is where the danger is one against which it is perfectly in the power 
 of the servant to guard himself, simply by keeping his eyes open. That is 
 the typical case in which the law says the servant must take the conse- 
 quences of his own neglect " : Forsyth v. Bamage, 18 R. 21. Thomson v. 
 Scott, 25 R. 54, 54; Metcalf v. Great Boulder Proprietary Gold Mines 
 (1906), 3 0. L. R. (Australia), 543. 
 
 (6) [1892] 2 Q. B. 100. 
 
 (c) 21 Q. B. D. 871. 
 
 (d) [1892] 2 Q. B. 92. 
 
 (e) 38 W. R. 412 ; 6 T. L. R. 219. As to defect in the condition of a 
 deck, see per Lord Lee, Gray v. Thomson, 17 R. 200. 
 
Be-fect in Condition 167 
 
 which entitles the workman to recover damages against his Chap. VI. 
 
 employer for an injury caused by the machine, even though 
 
 it is effective for the purpose for which it is used. The 
 Court which decided this protested that they were not going 
 to act against the decision of the Court of Appeal in 
 Walsh V. Whiteley; yet it is difficult to reconcile their 
 decision with the decision of the majority in that case, 
 where it is said : (a) " It is said there is evidence of the 
 machine being dangerous. So are most machines, so is even 
 an ordinarily sharp knife, unless used with care ; but that 
 does not make it defective in its condition, nor does it imply 
 negligence in the employer, if an accident happens, who 
 furnishes it to his workman for him to use with reasonable 
 care." 
 
 The phrase of Fry, L.J. — " defect of a chronic character " Tate «. Latiiam, 
 — in Willetts v. Watt (6) was the subject of criticism in 
 Tate V. Latham, (e) A movable guide necessary to protect 
 a circular saw had been removed by a workman for con- 
 venience in working "and had been left off for some 
 considerable time." A fellow workman was injured in 
 consequence. An argument was addressed to the Court 
 founded on Fry, L.J.'s expression that the defect must be 
 of a " chronic character," that the temporary removal of a 
 saw-guard to facilitate working was not within the Act. 
 Eeference to Fry, L.J.'s judgment will show that such a 
 meaning cannot fairly be attributed to his words. The lid 
 there was properly removed to perform one of the dual 
 purposes for which it was constructed. The accident 
 occurred through the workman negligently using it for the 
 other. In the present case the saw was being used for its 
 
 (o) 21 Q. B. D. 379. 
 (6) [1892] 2 Q. B. 100. 
 (c) [1897] 1 Q. B. 502. 
 
168 Employers Liability Act, 1880 
 
 Chap. VI. proper purpose, but without fitting an adjunct necessary for 
 its safe use. (a) 
 Defect connected The dsfect must further be in the condition of ways, 
 
 with or used in pi 
 
 the buBincss of etc, " Connected with or used in the business of the 
 
 the employer. 
 
 Howe V. Finch, employer." This is pointed out in Howe v. Finch, (&) 
 where it was sought to recover for injury caused by the fall 
 of a wall forming part of the defendant's works, and which 
 wall at the time of the accident had not been completed, 
 and had never been used, though it was intended to be used 
 for the business. The Divisional Court held the plaintiff 
 not entitled to recover. 
 
 ■ Ways.' 
 
 ■Ways.(c) 
 
 "Ways," says Smith, J., (d) "means the ways used 
 in the business, not partly made ways not used. If that 
 ■Works." is to be so as to 'ways,' it is so as to 'works,' I do not 
 agree that if a whole structure fell or caused damage to a 
 workman he would not have a right of action, for I think 
 that he would. But here it was partly finished. I think 
 ' ways, works, etc.,' . mean the existing and completed 
 works." («) 
 
 (a) Hamilton v. Groesbeok, 19 Ont. E. 76, oonfliota with this. The 
 want of a guard was held not a defect in the condition of a saw, " when 
 such guard was no part of the saw, nor of the machinery connected there- 
 with, nor at all necessary for any proper or reasonable fitness of the saw 
 for the purpose for which it was used." This point was not raised on the 
 Appeal, 18 Ont. A. R. 437. 
 
 (6) 17 Q. B. D. 187. Rae v. Milne & Sons, 24 E. 165. In Brannigan v. 
 Robinson, [1892] 1 Q. B. 344, the injured man was not engaged upon 
 pulling down a wall, but was injured by an unsafe wall while he was 
 otherwise employed than attending to it, and so the case is within Smith 
 V. Baker, [1891] A. C. 325. The work was done in an unsafe way, and was 
 not in its nature unsafe. In Lynch v. Allyn, 160 Mass. 248, the Court 
 considered these cases to conflict. In Davidson v. Stuart, 34 Can. S. 0. B. 
 215, the work itself was dangerous. Cp. Nordheimer v. Alexander, 19 Can. 
 S. C. E. 248. Ante, 30. Post, 1Y3. 
 
 (c) Ante, 124. 
 
 (d) 17 Q. B. D. 190. 
 
 (c) See Conway v. Clemence, 2 T. L. R. 80. 
 
Ways 169 
 
 This decision must extend to the case of " machinery," Chap. VI. 
 etc., brought into a place for the purpose of being used, j.^^^^ ^7^ 
 though not fixed for use. Neither is the employer liable *'=°'*'°"- 
 where he has put out the work to be done by a competent 
 contractor and is not guilty of negligence; and where 
 danger is not apparent ; (a) nor where the very nature of 
 the work manifestly involves considerable risk, as in 
 securing a tottering wall, and the accident happens in the 
 circumstances connoting the risk, (h) 
 
 Where a heavy machine had to be moved over an Bowie d. 
 
 , BaDkln. 
 
 uneven depression which was filled m with slips of wood Bromiey v. 
 
 J i ,1 . . „ . J . . .1 !• Cavendish 
 
 covered by a thin covering 01 iron, and in moving, the slips spinning co. 
 of wood gave way, and an accident resulted, the Second 
 Division of the Scotch Court of Session held that there was 
 a defect in the condition of a way. (c) In a somewhat 
 similar case, where the plaintiff came out of a mill-yard 
 where she was engaged, and was obliged to pass over a hole 
 in the ground where a weighing-machine was being set up, 
 and over which certain planks were placed, one of which, 
 being loose, tipped up as she stepped on it, and caused her 
 injury, the Court of Appeal held that " the place was a 
 ' way ' within the meaning of the sub-section, and the way 
 was defective, and defective owing to the negligence of the 
 defendants, and the defendants were liable." (d) 
 
 (a) Op. Kiddle v. Lovett, 16 Q. B. D. 605, where a oompetent contractor 
 was employed to put up " boat staging" which was negligently done, but 
 was held not to charge the employer with negligence. Maodonald v. 
 Wyllie, 1 P. 339, is at variance with this. But see Wood v. Mackay, 
 8 P. 625. Biddle v. Hart, [1907] 1 K. B. 649 ; Kettlewell v. Paterson, 
 24SC.L. B. 95. 
 
 (b) See per Day, J., in Griffiths v. London and St. Katharine Docks Co., 
 12 Q. B. D. 493 ; Ogden v. Bummens, 3 F. & P. 751. Also the Scotch 
 cases, Praser v. Hood, 15 B. 178, where a stableman, who undertook the 
 care of a horse that he knew to be vicious, was disentitled to recover for 
 injuries received from it. As to this qutzre and see ante, 31 ; and Mulligan 
 V. M' Alpine, 16 B. 789, a defective system of blasting; also Elliott v. 
 Tempest, 5 T. L. B. 154 ; Moore v. Gimson, 5 T. L. B. 177. 
 
 (c) Bowie V. Bankin, 13 B. 981. 
 
 (d) Bromley v. Cavendish Spinning Co., 2 T. L. B. 881 (0. A.). 
 
170 
 
 Employers Liability Act, 1880 
 
 Chap. VI. 
 
 Willetts II. 
 Watts. 
 
 Judgment of 
 Lord Esber. 
 M.E. 
 
 Instances 
 of " ways.' 
 
 In Willetts v. Watts, (a) the Divisional Court (Hawkins 
 and Wills, JJ.) put a somewhat forced construction on the 
 language of Field, J., in McGiffin v. Palmer's Shipbuilding 
 Co., (b) and held that to constitute a " way " there must be 
 a " defined way," and one " habitually used " as such. The 
 Court of Appeal disagreed with this construction. "The 
 second of these arguments," says Lord Esher, M.K, (c) 
 referring to the requirement of an habitual use, "is not 
 tenable, for if it were the Act would not apply 
 to the first user of a way, however defined it might 
 be, but would only apply after considerable use of 
 it. I cannot therefore regard habitual user as necessary. 
 Nor do I think that it is necessary the way should be 
 marked out and defined. If a way passes where the 
 user would make no mark and where there are no defined 
 boundaries, is it to be said that is not a way within the 
 Act? Difficulties in so holding have been pointed out 
 in the course of the argument, and I cannot come to that 
 conclusion. The definition which strikes me as sufScient 
 for the determination of this case is — the course which a 
 workman would in ordinary circumstances take in order to 
 go from one part of a shop, where a part of the business is 
 done, to another part where business is done, when the 
 business of the employer requires him to do so, must be 
 regarded as a ' way ' within the meaning of the statute." 
 
 A temporary staging erected by the side of a wood pile 
 to enable the workmen to place wood thereon and pile it 
 higher, and so movable from time to time, has been held a 
 " way ; " {d) so has a temporary derrick at a stone-yard 
 erected to move stones from cars to where stonecutters 
 
 (a) [1892] 2 Q. B. 92. 
 
 (b) 10 Q. B. D. 8. 
 
 (c) [1892] 2 Q. B. 97. 
 
 {d) Prendible v. Connecticut River Manufacturing Co., 160 Mass. 131. 
 
Ways 171 
 
 could use them ; (a) and a plank put down to serve as the . Chap. VI. 
 
 fulcrum of a lever where it is placed in such a position 
 
 that servants have to pass over it in the course of their 
 
 duties; (6) and a manhole on the side of a railway in a 
 
 mine so obstructed with rubbish that it cannot be resorted 
 
 to on the approach of cars, (c) But a mere pile of boards 
 
 is not. (d) 
 
 When a man is permitted to use a way which is choice of ways. 
 dangerous, while there are other ways for him to use if he 
 chooses, the employer is not liable, in the case of an 
 accident happening, on the ground that he has not made 
 the way safe, (e) 
 
 The roof of a mine is included in the term " ways." (/) 
 
 Apart from the Employers Liability Act, 1880, there Liability at 
 have been cases before the Courts involving expressions of 
 opinion on what is a defect in a way; and there is no 
 doubt but that at common law the employer may be liable 
 for the defective condition of ways if he have personal 
 knowledge of the defect and does not remedy it. (^) A 
 person lawfully on the platform at a railway company's 
 station fell upon some ice extending half across it. He was 
 held entitled to maintain an action, (h) So were the repre- 
 sentatives of a man killed through an accident caused by 
 the faulty construction of a bridge erected across a railway 
 
 (a) MoMahon v. MoHale, 174 Mass. 320. 
 (6) Caldwell v. Mills, 24 Out. E. 462. 
 
 (c) Ferris v. Cowdenbeath Coal Co., 24 B. 615. 
 
 (d) Campbell v. Dearborn, 175 Mass. 183. 
 
 (fi) Prichard v. Lang, 5 T. L. E. 639. This case is like Boloh v. Smith, 
 7 H. & N. 787. 
 
 (/) Woods V. Carron Iron Co., 8 T. L. E. 376. Manholes constructed 
 on the side of a roadway in a coal mine are parts of the ways of the mine : 
 Ferris v. Cowden Heath Coal Co., Ltd., 24 E. 615. 
 
 {g) MoMullen v. Newhouse Coal Co., 23 E. 759. See ante, 33. 
 
 (h) Shepherd v. Midland Ry. Co., 25 L. T. (N. S.) 879. 
 
172 Employers Liability Act, 1880 
 
 Chap. VI. line ; (a) so also was a man who stumbled over a hamper 
 ' placed at the side of the line some distance from the plat- 
 form, where it was the practice for arriving passengers to 
 walk alongside and round the end of the train in order to 
 cross the line. (6) So, too, where injuries were caused by 
 combined defective construction of railway carriage, dark- 
 ness of the station and a depression, the result of wear in 
 the surface of a platform, a right of action was held to 
 exist, (c) But there was held to be no right of action where 
 a man caught his foot against the raised edge of a weighing- 
 machine on a railway station platform ; {d) nor where one 
 fell down a staircase having stairs edged with brass which 
 had worn smooth.(e) 
 
 Britfsh shi^'. -^ ™^^ working on board ship fell down an open hatch- 
 
 pMy." '^°°'' ^ay. It was held that, in the circumstances, this leaving 
 the hatchway open was not negligence ; and if it was, it 
 was the negligence of a fellow-servant. (./) 
 
 (a) Longmore v. G. W. Ey. Co., 19 C. B. (N. S.) 183. 
 (6) Nicholson v. Lanes. & Y. Ey. Co., 34 L. J. Ex. 84. 
 
 (c) Stewart v. Caledonian Ey. Co., 8 Maoph. 486. 
 
 (d) Cornman v. Eastern Counties Ey. Co., 4 H. & N. 781. 
 
 (e) Crafter v. Metropolitan Ey. Co., L. B. 1 C. P. 300. In these days 
 stress would be laid on the evidence (at p. 301) that " the edge of each step 
 had by constant traffic been worn smooth," which nowhere else seems to 
 have been noticed. 
 
 (/) McCarthy v. British Shipowners' Co., 10 L. E. Ir. 384. Cp. O'Neill 
 V. Everest, 61 L. J. Q. B. 453 ; Eorsyth v. Eamage, 18 E. 21 ; Jamieson v. 
 Eussell, 19 E. 898 ; and Loader v. London and East and West India Docks 
 Joint Committee, 65 L. T. 674. In Stride v. Diamond Glass Co., 26 Ont. 
 E. 270, a public street in a defective condition, used by an employer in 
 connection with his business, is not a " way used in the business of the 
 employer " within the meaning of the Ontario Workmen's Compensation 
 for Injuries Act, 1892 ; but a plank placed to pry up a p^rt of the flooring 
 of a buUding partly erected is within the same words of the same Act : 
 CaldweU v. Mills, 24 Ont. E. 462. See also Headford v. M'Clary Manu- 
 facturing Co., 22 Ont. A. E. 164. M'Inulty v. Primrose, 24 E. 442, is the 
 case of an accident caused by the breaking of a step in an unfinished house 
 whUe a labourer was carrying a load of bricks up the stairs. It was held 
 that there was no right of action under s. 1, sub-s. 1 of the Emplovers 
 Liability Act, 1880. 
 
Works 173 
 
 Works, (a) Chap. VI. 
 
 Lord Watson in Smith v. Baker (6) refers to the- works." 
 dangerous arrangement of machinery and tackle in that 
 case as constituting a defect in the condition of the " works," 
 and the phrase may be taken as covering the method of 
 and the appliances for working. It has also been decided 
 that an arrangement of machinery not in itself defective, 
 but placed in the hands of unskilled labourers, must be 
 regarded in connection with any obvious danger likely to 
 arise from their use of it ; and in the absence, in the 
 condition of the machinery taken as a whole, of any 
 sufficient safeguard against probable and obvious danger 
 there is a defect (c) 
 
 A builder was engaged in pulling down an old house, urannigau u. 
 After the roof had been removed and part of the walls 
 pulled down, he ordered the plaintiif, a labourer in his 
 employment, to remove some of the debris of the roof, 
 which lay on the ground near one of the walls which was 
 left standing. Owing to the neglect of the defendant the 
 wall fell on the plaintiff as he worked. It was argued 
 that the injury was not caused through a defect in the 
 condition of works, since works signify those which are on 
 an employer's own premises, where he permanently carries 
 on his business; and further that works, as applied to a 
 building, means a complete structure. The Court, however, 
 held that the insecurity of the wall was a defect in the 
 condition of the works. " I cannot see," said Wright, J., {d) 
 " why premises which are in the possession of a person for 
 the purposes of his business should not be regarded as the 
 
 (a) Ante, 124. 
 
 (6) [1891] A. 0. 354. 
 
 (c) Stanton v. Sorutton, 62 L. J. Q. B. 405. 
 
 (d) Brannigan v. Robinson, [1892] 1 Q. B. 344 at 347. 
 
174 Employers Liahility Act, 1880 
 
 Chap. VI. works of such person, so long as he is carrying on his 
 business there." 
 
 Moore D.Gimson. In another case (a) certain buildings forming part of the 
 defendant's works had been destroyed by fire, and the walls 
 which remained standing after the fire were in a dangerous 
 condition. A contractor who had the sole control of the 
 work of reinstatement was employed to rebuild. The 
 foreman's attention being called to the matter, and the 
 walls being apparently dangerous, he withdrew the work- 
 men and apprised the contractor. The contractor shored 
 up the wall and left it safe, and certified the foreman to 
 that effect. The workmen were then placed on the work 
 again. Shortly after the wall fell and plaintiff was injured. 
 The jury in the County Court found for the plaintiff. The 
 evidence of negligence relied on was that when the foreman 
 had the assurance of the contractor that the wall was safe 
 he was satisfied with it, and never went to look at the wall 
 with his own eyes. The Divisional Court set the judgment 
 in the County Court aside, and entered judgment for the 
 defendant, on the ground that there was no evidence of 
 negligence. The contractor, who was not sued, was clearly 
 liable. The foreman, who went to the best person he could 
 to remedy the defect so soon as it was discovered, had 
 "done all a man could do for the safety of the workmen." (h) 
 
 Booker v. Higgs (c) is the case of a man engaged to 
 pick a hole in a wall which, while he was doing so, came 
 down upon him. The Divisional Court held that there was 
 no liability on the employer; "if it were negligence to 
 direct a man to do work more or less dangerous, it would be 
 impossible to do such work." 
 
 (a) Moore v. Gimson, 58 L. J. Q. B. 169. 
 
 (b) Per Hawkins, J., I.e. at 170. 
 
 (c) 3T. L. R. 618 
 
 Booker v. Higgs. 
 
Machinery 175 
 
 Machinery, (a) Chap. VI. 
 
 The cases on defects in the condition of machinery have uefmt in the 
 
 , 1 • • 1 , 11 1 1 condition of 
 
 already incidentally been treated. machinery. 
 
 A machine has been defined to include "every me- Machine. 
 chanical device or combination of mechanical powers and 
 devices to perform some function and produce a certain 
 effect or result." (6) It is defective in its condition if 
 it is not in a proper condition for the purpose for which 
 it is applied, (c) This is well illustrated in the Scotch case 
 of Johnson v. Blitchell, (d) which was an action to recover Johnson ». 
 
 . . ^ Mitchell. 
 
 damages for injuries sustained by crushing a hand while 
 shutting a sliding door on the occasion of an alarm of fire. 
 It was proved that the door was constructed for the purpose 
 of preventing fire communication from one room to another, 
 and that, when hastily closed, it would run on till brought 
 up by the handle. The Court held the plaintiff entitled to 
 recover, on the ground that the door, if shut quietly and 
 deliberately, could hurt no one, and if plaintiff had looked 
 to see how the door shut there would have been no chance 
 of danger ; yet, as the door was intended to be used on the 
 occasion of a sudden fire, when people act very hurriedly, 
 its construction was not suitable for the purpose for which 
 it was to be applied. 
 
 In Bacon v. Dawes (e) a difference was relied on between Distinction 
 
 . J 1 a ,* between defect 
 
 a defect in the condition of a machine and a deiective m the condition 
 
 of a machine and 
 defective result 
 in working. 
 (a') Ante, 124. 
 
 (6) Corning v. Burden, 15 How. (U.S.) 267. 
 
 (c) Paley v. Garnett, 16 Q. B. D. 52. Op. Walsh v. Whiteley, 21 
 ;s| Q. B. D. 371 ; Baxter v. Wyman, 4 T. L. B. 255. Where the evidence 
 ffll showed that a machine was the one in general use, it was held that its 
 
 particular construction was not a defect : Claxton v. Mowlem, 4 T. L. R. 
 756; Race v. Harrison, 9 T. L. R. 567, 10 T. L. R. 92 (0. A.) ; Gill o. 
 Thornyoroft, 10 T. L. R. 316. Ante, 19 and 34. 
 
 (d) 22 Sc. L. R. 698. 
 
 (e) 3 T. L. R. 557. 
 
176 
 
 Employers Liability Ad, 1880 
 
 Defect in the 
 condition of 
 pltint. 
 
 Chap. VI. result ia working caused by the negligence of the man in 
 charge of it. This may well be. In the case in question, 
 however, the evidence pointed to a defect in the machine 
 itself, which was held to be within the Act. The jury 
 found that the injury was caused by defective pressure in 
 the machine; and their finding was held to warrant a 
 verdict for the plaintiff. 
 
 In a Canadian case (a) want of a guard to a saw was 
 held not a defect in the condition of a saw, " when such 
 guard was no part of the saw, nor of the machinery con- 
 nected therewith, nor at all necessary for any proper or 
 reasonable fitness of the saw for the purpose for which it 
 was used." But Lords Coleridge and Esher, sitting as a 
 Divisional Court, are reported to have said, in Morgan v. 
 Hutchins, (i) a case, which has already been noticed, that 
 all the judges in Walsh v. Whiteley agreed in holding 
 " that danger is a defect (c) within the Employers Liability 
 Act ; and to have held that a liability arose where a machine 
 was not defective with reference to its purpose if it was so 
 with reference to the danger arising from its use. The 
 scope of this decision must not, however, be extended 
 beyond " dangerous machinery used by children or young 
 persons," {d) despite expressions in the report in the Weekly 
 Reporter which are apparently of a most general applica- 
 tion. One of the material facts in it is that " the inspector 
 
 Morgan v. 
 Uutchins. 
 
 (a) Hamilton v. Groesbeck, 19 Ont. E. 76, affd. 18 Ont. A. B, 437, for 
 the reason that the proximate cause of the injury was not the unguarded 
 .condition of the saw by which the plaintiff was hurt, but the fact that he 
 tripped over a pile of staves ; but op. Tate v. Latham, [1897] 1 Q. B. 502. 
 
 (6) 38 W. E. 412 ; 6 T. L. E. 219. 
 
 (c) L.C., per Lord Coleridge, 0. J., 418 : " If the machine is dangerous to 
 the man without whose assistance it cannot be worked, and that without 
 any fault of his own, that is a defect in the condition of the machinery." 
 " That was the opinion of all the judges in Walsh v. Whiteley," per Lord 
 Esher, M.E., 418. Mcintosh v. Stewart, 19 N, Z. L. E. 152, 156. 
 
 (d) 6 T. L. E. 219. 
 
Machinery 177 
 
 of factories had warned defendant against employing young Chap. VI. 
 persons" on the particular machinery there called in 
 question. The probability, therefore, is that the decision 
 turned on these special facts, and that the principle in 
 Walsh V. Whiteley(a) is in no way involved in the 
 decision; though the report in the Weekly Eeporter 
 makes the learned judges assert the decision in Walsh v. 
 Whiteley to be the distinct contradictory of the reported 
 judgment, which is that evidence of a machine being 
 dangerous "does not make it defective in its condition, 
 nor does it imply negligence in the employer if an accident 
 happens." (6) 
 
 An employer must see that the machinery supplied is i.atent defect. 
 not faulty. Still, it is not enough to prove merely a 
 breakdown and consequential injury ; for this may be due 
 to a latent defect, (c) as in Milne v. Townsend ; {d) where 
 a crane broke down through a latent defect in a band, in 
 respect of which the master was held not to be liable. 
 
 Defective machinery may raise the presumption of negli- onus. 
 gence and throw the onus on the defendant ; if he then 
 proves that he bought the machine in the best market, 
 and that there was no discoverable defect, he has rebutted 
 the presumption, (e) 
 
 An employer is not bound to keep up with the latest Latest 
 
 J. inventione. 
 
 inventions in machinery. He is not compelled to discard 
 an old machine to make room for a new invention. (/) If 
 
 (a) 21 Q. B. D. 371. 
 (h) Ibid., 379. 
 
 (c) See Chap. II. Props. VI.-X., ante, 26. 
 
 (d) 19 E. 830. 
 
 (e) Ovington v. M'Vioars, 2 Maoph. 1066, per Lord Neaves, at 1074 ; 
 cp. Howson V. Barrett, 4 T. L. E. 449. 
 
 (/) Eace V. Harrison, 9 T. L. E. 567 ; 10 T. L. E. 92; Gill v. Thorney- 
 oroft, 10 T. L. E. 316. 
 
 B.E.L. ^ 
 
178 
 
 Employers Liability Act, 1880 
 
 Butler V, 
 Birnbaum. 
 
 Defect at 
 common law. 
 
 Chap. VI. his machine suffers deterioration from age and wear, he is 
 in default, but not for continuing the use so long as he 
 maintains the efficiency of it. (a) 
 
 In Butler v. Birnbaum, {b) a man employed in the manu- 
 facture of waterproofs was cerebrally affected by the fumes 
 of chemicals used. The defect in the condition of the 
 machine alleged was that it was not protected in the same 
 way in which some of the newest constructed machines 
 were. The employer was held not liable. 
 
 Even at common law, where a machine is shown to be 
 defective and injury is caused thereby to a workman, the 
 employer is liable ; since although the workman is held to 
 take the risk of the negligence of his fellow-workman, he is 
 only held to do this on the assumption that he will be 
 furnished with proper instruments, (c) 
 
 If the accident can be traced to some specific defect in 
 machinery, the employer is put to explain how the defect 
 was allowed to continue, {d) If an examination is rendered 
 impossible by the act of the person alleged to be in fault, 
 the presumption that he is in fault, in the particular which 
 cannot be investigated through his act, will be made against 
 him. (e) Thus an accident having happened through a 
 link in a chain giving way, and the foreman having thrown 
 the broken link into a river so that no examination was 
 
 Specific defect 
 
 (a) Hanson v. Lanes. &, Y. By. Co., 20 W. R. 297 ; Wisely v. Aberdeen 
 Harbour Commissioners, 14 R. 445. 
 
 (6) 7 T. L. B. 287; cp. Milligan v. Muir, 19 B. 18, observed on in 
 Cameron v. Walker, 35 So. L. B. 347. 
 
 (c) Prop. VI., Chapter II., ante, 26. In Weems v. Matheson, 4 Macq. 
 (H. L. So.) 215 at 227, Lord Wensleydale said : " I take it to be perfectly 
 clear that in these cases there is no warranty ; all that the master is bound 
 to do is to provide machinery fit and proper for the work, and to take care 
 to have it superintended by himself or by his workmen in a fit and proper 
 manner." 
 
 (d) Weems v. Matheson, 4 Macq. (H. L. So.) 215. 
 
 (e) Ovington v. M'Vicars, 2 Macph. 1066. 
 
Maehinenj 179 
 
 possible, the presumption was made against the employer Chap. VI. 
 that the link was so bad as not to bear examination, (a) 
 
 Two Scotch cases (6) have been considered (c) to go too Fraser «. Fraaer. 
 far. In the former of these a workman engaged in attaching 
 a lightning conductor to a chimney-stack was killed by the 
 breaking of a rope by which he was suspended. No actual 
 evidence was given as to the defect which caused the acci- 
 dent, though there was skilled evidence given that it might 
 have been caused by a " nip " in the rope, i.e. by a defect 
 which would have been detected on proper examination. 
 No examination was made. In the latter of these two cases. 
 Walker v. Olsen, a stevedore while unloading a vessel was 
 injured by the tackling falling upon him. It was not 
 shown what caused the falling of the tackling, but it was 
 held that no satisfactory explanation being given by the 
 owner led to the conclusion that the tackling was defective, 
 and the owner liable for damages. Apart from possibly 
 unguarded expressions, in the judgments of Lord Moncreiff 
 these cases seem to accord with the authorities. In Fraser 
 V. Eraser the duty to the workman was to examine the rope, 
 and the failure to do so resulted in the accident. In Walker 
 V. Olsen again, tackling being liable to get out of order, 
 there was a duty of recurrent examination which was not 
 performed, {d) 
 
 These cases in principle do not differ from Murphy v. compared. 
 Phillips (e) and Webb v. Eennie ; (/) in the latter of which 
 
 (a) Booney v. AUans, 10 E. 1224; Prop. XXIII., Ohap. III., ante, 81. 
 (6) Fraser v. Fraser, 9 E. 896 ; Walker v. Olsen, 9 B. 946. 
 
 (c) Spens and Younger, Employers and Employed, 46. 
 
 (d) Cp. Maofarlane v. Thompson, 12 E. 232. 
 
 (e) 35 L. T. (N. S.) 477, distinguished in Black v. Ontario Wheel Co., 
 19 Ont. E. 578, and in Hanrahan v. Ardnamult Steamship Co., 22 L. E. 
 Ir. 55. 
 
 (/) 4 P. & P. 608 at 613. 
 
180 
 
 Employers Liability Act, 1880 
 
 Chap. VI. cases Cockbum, C.J., said it was the employer's " business 
 to know if, by reasonable care and precaution, he could 
 ascertain whether the apparatus or machinery were in a fit 
 state or not." (a) 
 
 In Cowley v. Mayor of Sunderland, (6) a machine 
 originally made to work by hand, and made properly for 
 that purpose, was adapted to work by steam. A rod 
 necessary for working the machine by hand, but otherwise 
 entirely useless, was left in the machine, projecting above 
 the level. The condition of the machine was defective. 
 
 Cowley tj. Mayor 
 of Sunderlaad. 
 
 Machinery 
 entmfited to 
 uDskilled 
 labourers. 
 
 Violation of 
 Factory Acts. 
 
 An arrangement of machinery, not in itself defective, 
 but entrusted to unskilled labourers to manage, must be 
 considered with regard to an obvious chance of danger 
 arising through their want of care ; and the absence, in the 
 condition of the machinery taken as a whole, of any 
 sufficient safeguard against danger from any ordinary 
 and probable occurrence (e.g. a slip in the management of 
 a winch) is a defect, (e) 
 
 There may be a violation of the Factory and Workshop 
 Act, 1901, (ci) which may be treated as a defect in condition 
 within the Employers Liability Act, 1880. This was dis- 
 cussed in the Ontario case of Thomson v. Wright, (e) where 
 a failure to guard dangerous machinery within the provisions 
 
 (a) See Propositions IX.-XIII., Chapter II., amte, 28. Cp. Tarry v. 
 Ashton, 1 Q. B. D. 314 at 319 : and Soott v. London and St. Katharine 
 Docks Co., 3 H. & C. 596 ; see also Huxam v. Thorns, Law Times, 21st 
 January, 1882. 
 
 (b) 6 H. & N. 565. 
 
 (c) Stanton v. Scrutton, 62 L. J. Q. B. 405. 
 {d) 1 Edw. VII., c. 22. 
 
 (e) 22 Ont. R. 127. Ante, 24. See M'Cloherty v. Gale Manufacturing 
 Co., per Osier, J.A., 19 Ont. App. 117. This is the case of a woman's hair 
 caught by an unguarded revolving horizontal shaft which passed through 
 the room near the ceiling, and in front of a window she was opening at 
 the time of the accident. See O'Connor v. Hamilton Bridge Co 25 
 Ont. E. 12. ® ' 
 
Statutory OUigation 181 
 
 of the Ontario Factory Act was described as ";per se chap. VI. 
 evidence of negligence." 
 
 In the Scotch decision of Kelly v. Glebe Sugar Refining Breach of some 
 
 f^ /\.i . -_, other statutory 
 
 company, (a) the protection of the Factory Acts, 1878 to °™«»'^™ f 
 1891, was held to extend to every one employed in the Sfl^pV^yers 
 factory; so that there is no necessity to show that at the ^'"''""^ ^°'- 
 time of the happening of an accident the injured person 
 should be actually engaged in the performance of his duty. 
 This liability exists independently of the Employers 
 Liability Act, 1880. (6) Lord Adam thus states it : " The 
 owners of the factory are in fault for not having this shaft 
 securely fenced, and are prima facie liable in damages for 
 the consequence of that fault, for I cannot adopt the view 
 that their liability is limited to the penalty imposed by 
 the Statute for neglect of its provisions. I think that the 
 neglect of the statutory provisions creates a prima facie case 
 of fault against the factory owners, which will render them 
 liable in damages to their employes, who may have been 
 injured through their fault." (c) 
 
 By the Factory and Workshop Act, 1901, (d) the 
 expression " machinery " is to include any driving strap 
 or band. 
 
 Plant, (e) 
 
 To decide what is " plant " within the Act is a matter of 
 more difficulty. Lindley, L. J., in Yarmouth v. France (/ ) 
 says : " In its ordinary sense, it includes- whatever apparatus 
 is used by a business man for carrying on, his business — not 
 
 (a) 20 B. 833. 
 ..(6) Ante, 25. 
 
 (c) See Proposition XIII., Chapter II., ante, 33. 
 
 (d) 1 Edw. VII., u. 22, s. 156. 
 
 (e) Ante, 124. 
 
 (/) 19 Q. B. D. 658. 
 
182 Employers Liability Act, 1880 
 
 Chap. VI. ^i® stock-in-trade which he buys or makes for sale ; but 
 
 all goods and chattels, fixed or movable, live or dead, which 
 
 he keeps for permanent employment in his business." (a) 
 The question arose in that case whether a horse was plant 
 within the sub-section. On this the Lord Justice observes : 
 ' The word ' defect ' and the words ' way and machinery ' 
 which occur in the section, throw some doubt on whether 
 plant can include horses; but I do not think the doubt 
 sufficient to require the Court to hold that plant cannot 
 include horses, or to hold that plant must be confined to 
 inanimate chattels. The defendant in this case has a 
 number of horses for use in his business ; they were part of 
 his plant, not only in the ordinary sense of the word, but 
 also, in my opinion, in the seilse in which the word is used 
 I in sec. 1, sub-sec. 1, of the Employers Liability Act." The 
 horse, being vicious, was held to be defective plant, as 
 whatever renders plant unfit for the use for which it is 
 intended, when used in a reasonable way, and with reason- 
 able care, is a " defect " in the condition within the Act. 
 Lord Esher, M.R., was of the same opinion, (b) 
 
 cirter «. . One decisiou, (e) by which it is held that a ship belong- 
 
 ' ing to a shipping company and carrying coals for coal 
 
 merchants is the coal merchants' plant, appears to impose a 
 
 non-natural strain on the word " plant ; " which but slightly 
 
 (a) See Blake v. Shaw, Johns. (Page Wood, V.O.), 732. 
 
 (6) Per Lord Esher, M.B. : The defendant " must use horses and carta 
 or waggons. They are all necessary for the carrying on of the husiness. It 
 cannot be contended that the carts and waggons are not ' plant.' Can it 
 be said that the horses, without which the carts and waggons would be 
 useless, are not ? " This method of reasoning may be yet further extended ; 
 e.g. can it be said that drivers, without which horses and carts and waggons 
 would be worse than useless — positively injurious — are not ? 
 
 (c).78 L. T. 76. Cp. Simpson v. Paton, 23 E. 590; M'Lachlan v. 
 Steamship " Peveril " Co., 23 B. 753. It is also inconsistent with Allmarch 
 V. Walker, 78 Law Times newspaper, 391, that says broadly that a defect 
 in a cart hired temporarily to carry a load is not a defect in plant, but 
 which is wrong if the principle in the text holds good. 
 
 I' 
 
Plant 183 
 
 extended would seem to cover the vehicle of the carrier Chap. VI. 
 where goods are delivered at the risk of the consignor. 
 
 In the Scotch case of Hasten v. Edinburgh Street Haston ». 
 Tramway Co. (a) the sheriff held that the word " plant " Tramway co. 
 includes animals used for the purpose of a business. When 
 the case came before the Court there appears to have been 
 no argument on the point, and Lord Young took it as 
 indisputable that horses are plant within the Act ; so that 
 permitting a horse unfit to be used to continue at work is 
 conduct that makes an employer liable for a defect in the 
 condition of his plant. In the Victorian case of Monahan v. 
 Moore, (b) " a rope, horse and bucket connected together 
 and used to lower cement down a sewage shaft " were held 
 " plant," and an insecure fastening of them a " defect." 
 
 Perry v. Brass (c) has been cited for the proposition Peny ». Brass. 
 that the workman cannot recover in respect of defective plant. 
 plant unless the plant belongs to the employer. The case 
 does not go so far as this ; but even to the length that it 
 does, it is scarcely (as reported) in accord with good sense. 
 Defendants were employed by Grovernment to do repairs to 
 Government buildings. Plaintiff was in their employ 
 under a foreman, to whom he applied for a ladder and was 
 referred by his foreman to the Government foreman of the 
 works. He told plaintiff he might have one which he 
 indicated, and which plaintiff fetched. It was defective, 
 broke as soon as used, and caused injury to plaintiff. The 
 Divisional Court held that "the ladder was not the 
 defendants', so that the accident did not arise from any 
 defect in plant of theirs," and as to "their duty to see 
 that it was safe there was no evidence of negligence." The 
 
 {a} 14 E. 621. Op. E'raser v. Hood, 15 R. 178. 
 
 (b) 23 V. L. R. 230. 
 
 (c) 5 T. L. E. 253. Op. Eussell v. M'Leisli, 35 Sc. L. R. 818. Ante, 22. 
 Post, 188. 
 
184 
 
 Employers Liability Act, 1880 
 
 Jones V. 
 Burford. 
 
 Chap. VI. question of the title to the plant actually used with the 
 
 sanction of the employer would appear irrelevant. When 
 
 the foreman authorizes the workman to apply in a certain 
 quarter for the plant necessary for the work, and which the 
 employer is bound to supply, and the plant supplied breaks in 
 using in a way that it ought not if the employer had done his 
 duty, a case of res ipsa loquitur appears to present itself, (a) 
 The principle at the bottom of Jones v. Burford (6) is very 
 different. A ladder was borrowed and used without the 
 knowledge or authority of the employer or his foreman, and 
 proved defective and caused injury. The ownership of the 
 defective instrument is in itself immaterial. The user in 
 the business with the sanction of the employer is what is to 
 be looked at. This seems to be the correct principle to 
 refer to. (c) 
 
 The carcase of a house cannot be said to be builder's 
 plant ; (d) and is plainly not included in Lindley, L. J.'s 
 description quoted above ; though it appears to come within 
 the words " works connected with or used in the business 
 of the employer." (e) 
 
 Carcase of 
 faouBC. 
 
 Sliip. 
 
 Ladder accident 
 through high- 
 heeled boots. 
 
 A ship, we have just seen, belonging to a shipping com- 
 pany, and carrying coals for coal merchants between Cardiff 
 and Newhaven, was held " plant " in the coal merchants' 
 business. (/) 
 
 A girl fell down a ladder and was injured. The accident 
 
 (a) Webb v. Eennie, 4 P. & F. 608. Mamey v. Scott, [18991 1 Q- B. 
 986 ; as to the authority of this case on the duty of examination, ante, 53. , 
 
 (6) 1 T. L. E. 137 ; Watson v. M'Leish, 25 B. 1028. 
 
 (c) Coughlin v. Gillison, [1899] 1 Q. B. 145, states the obligation where 
 plant is gratuitously lent. 
 
 {d) Conway v. Olemenoe, 2 T. L. E. 80, per Manisty, J. ; Reynolds v. 
 HoUoway, 14 T. L. E. 551. 
 
 (e) Braunigan v. Eobinson, [1892] 1 Q. B. 844. 
 
 (/) Carter v. Clarke, 14 T. L. E. 172. The report of the case is not 
 clear, and the decision may probably be sustained on one of the other 
 
Playvt 185 
 
 was caused through the girl wearing high-heeled boots. Chap. VI. 
 She was consequently disentitled to recover, (a) 
 
 A washerwoman fell down a trap door, through which Manifest danger, 
 was a ladder used for passing from one floor to another. 
 Lord M'Laren considered that "the question of known 
 danger is raised. One class [of cases] is where the master, 
 by the adoption of some known and suitable appliance, may 
 diminish the danger to his servants and does not adopt it ; in 
 such cases the rules of the Statute as to injuries resulting 
 from defects will probably apply; but the other class is 
 where the danger is one which is perfectly in the power of 
 the servant to guard himself against simply by keeping his 
 eyes open. That is the typical case in which the law says 
 the servant must take the consequences of his own 
 neglect." (6) 
 
 Having car buffers of different heights so that, in 
 coupling, the buffers overlap, is " a defect in the arrange- 
 ment of the plant," within the Ontario Workmen's Com- 
 pensation for Injuries Act. (c) 
 
 A driving band which had a habit of slipping when various cases. 
 the machine was used, has been held defective plant ; {d) 
 so has a temporary staging of loose planks, one of which 
 shifted when stepped on ; (e) and the roller of a jute 
 
 points taken. On the point for wMch the case is mentioned here it is 
 probably one of those cases which are said to be " decided on their par- 
 ticular facts, and which lay down no principle of law." See Sandeman v. 
 Scurr, L. B. 2 Q. B. 86 ; Baumwoll Manuf actur von Scheibler v. Gilchrest, 
 [1893] A. 0. 8 ; Simpson v. Baton, 23 B. 590 ; and M'Laohlan «. Steamship 
 " Peveril " Co., Ltd., 28 E. 758, hold that there is no duty on a stevedore 
 to inspect a vessel he is unloading in order to see to its safety for his 
 servants. 
 
 (a) Ayres «. BuU, 5 T. L. B. 202. 
 
 (6) Moore j>. Boss, 1TB. 796. See Propositions XVI.-XVIII., Chapter IL, 
 ante, 37. 
 
 (c) Bond V. Toronto By. Co., 22 Ont. A. B. 78 ; cp. EUsbury v. N. Y. N. H. 
 & H. Bd. Co., 172 Mass. 130. 
 
 (d) Ba-xter v. Wyman, i T. L. B. 255. 
 
 (e) Giles v. Thames Ironworks Co.," 1 T. L. B. 469. 
 
186 Employers Liability Act, 1880 
 
 Chap. VI. cutting machine which allowed the jute being cut to get 
 into the joints of the various sections of which it was 
 composed ; (a) a hydraulic crane which jerked as it was 
 used ; (6) unfenced machinery ; (c) but a failure to pack 
 iron stanchions so that they did not fall from the trolley 
 on which they were being carried, has been held not a 
 defect in the plant, (d) 
 
 Injury must be Lastlv, the iniurv must be " caused " by the defect; for 
 
 "caused" by the j' j j j 
 
 defect. it is not euough that a defect exists in some particular, and 
 
 that injury from the works, ways, etc., occurs subsequently 
 to the existence of the defect. The relation of cause and 
 effect in natural and ordinary sequence is necessary before 
 a liability on the part of the master can be established, (e) 
 
 The workman cannot recover if the occurrence causing 
 the injury is pure accident; (/) nor if any appliance fails 
 under some unexpectedly severe strain ; (g) nor if the 
 negligence is the work of a fellow-servant not in the 
 exercise of superintendence. The fact that a defect existed 
 in machinery, which the plaintiff had been told off to 
 remedy, has been held not the proximate cause of an injury 
 received by him through a fellow-servant negligently 
 setting machinery in motion while plaintiff was about the 
 work, (h) 
 
 {a) Paley v. Garnett, 16 Q. B. D. 52. 
 
 (6) Bacon v. Gray, Dawes & Co., 3 T. L. R. 557. 
 
 (c) Ilea V. Aberoarn Welsh Flannel Co., 2 T. L. K. 547. 
 
 (d) Corcoran v. Bast Surrey Ironworks Co., 58 L. J. Q. B. 145. 
 
 (e) Martin v. Connah's Quay Alkali Co., 33 W. R. 216. Mr. Labatt 
 discusses " the necessity of establishing a causal connection between the 
 order and the injury," Master and Servant, 2019-2024. 
 
 (/) Harris v. Tinn, 5 T. L. B. 221; M'Manus v. Hay, 9 R. 425 ; Welch 
 V. Grace, 167 Mass. 590. 
 
 (g) McLean v. Cole, 175 Mass. 5. A scaffold swung so violently as to 
 swing a workman out, through a gutter wrenched from a building coining 
 off unexpectedly easily. 
 
 {h) Mackay v. Watson, 24 R. 888 ; Mulligan v. M' Alpine, 15 R. 789. 
 
Bight to Remedy Defect 187 
 
 Holmes, J., (a) in discussing what is a "defect in the Chap. VI. 
 condition," etc., says that the words imply that " the defect Defcotml^t be 
 must be one which the employer has a right to remedy if empioyCThls a 
 he discovers it, and of a kind which it is possible to charge "^ """^ ^' 
 a servant with the duty of setting right ; " that is, the 
 master is not to be put to inquire as to things not under 
 his own control. (6) Thus the defective condition of a way 
 used in connection with the employer's business, but not 
 under his control — an unfenced road at the top of a steep 
 hill leading to the employer's premises — carries with it no 
 liability, (c) In this case Boyd, C, held that the meaning 
 of the words of the Act he was construing — defect in the 
 condition of a way used in the business — "means some 
 defect on his premises, or on a place over which he had 
 control, that could be made right by the employer " — 
 adopting in substance Holmes, J.'s construction, {d) 
 
 Mathew, J., (e) has held " that the Legislature in saying Defect must be 
 
 ' ' ^ ' ° 1 a connected with 
 
 ' defects in the condition of the . . . works . . . connected wjj'^'dj" 'fe 
 with or used in the business of the employer,' did not mean 
 ' about to be connected,' or ' about to be used.' I think the 
 defect that it was intended to protect the workman against 
 was a defect in the works connected with or used in the 
 business of the employer, carried on by himself, a defect 
 which the employer might or ought to discover, and the 
 workman ought to have an opportunity of objecting to. 
 I do not think sec. 1, sub-sec. 1 was intended to apply to 
 
 (a) Engel v. New York, Providence and Boston By. Co., 160 Mass. 260, 
 261. 
 
 (h) Hughes v. Maiden, &o.. Gas Light Co., 168 Mass. 395. 
 
 (c) Stride v. Diamond Glass Co., 26 Ont. B. 270. 
 
 (d) ^Robinson v. Watson, 20 B. 144, is on the same lines, and not 
 apparently reconcilable with the doctrine of Carter v. Clarke, 78 L. T. 76. 
 Cp. Nelson v. Scott, 19 B. 425. 
 
 (e) Howe v. Finch, 17 Q. B. D. 187 at 189. 
 
188 
 
 Employers Liability Act, 1880 
 
 Chap. VI. the case where machinery, etc., was brought into a place 
 intended to be used and left so insecure that it fell." 
 
 Mr. Spens' 
 commeDt. 
 
 W^right, J.'s 
 opinion in 
 Brannigan i), 
 Kobinson. 
 
 Mr. Spens (a) considers that " the Scotch Courts would 
 be disposed to give a much more liberal construction to the 
 word 'connected' in the phrase 'connected with the business 
 of the employer.' The word * connected,' I apprehend, 
 would be interpreted as meaning having something to do 
 with the business of the employer, and the wall which 
 fell in Howe's case having been put up for the purpose 
 of the business would, in my opinion, fall within that 
 interpretation." 
 
 Wright, J., (b) " cannot see why premises which are in 
 the possession of a person for the purposes of his business 
 should not be regarded as the works of such person so long 
 as he is carrying on his business there. The case of Howe v. 
 Finch (c) is not in any way inconsistent with our judgment ; 
 for in that case the employer who was sued was not the 
 owner of the premises, and the wall being still in an unfinished 
 state and in the possession of the builder at the time of the 
 accident could not have been said to be connected with or 
 used in the business of the employer." 
 
 In Howe -y. Finch {d) the plaintiff was employed at 
 chemical works. A wall in course of building fell on him. 
 This incomplete wall, in Wright, J.'s judgment, was con- 
 nected with the business of the builder, but not with the 
 chemical works. 
 
 Biddie II. Hart. Biddle V. Hart (e) is a confirmation of Wright, J.'s view. 
 
 (a) Spens and Younger, Employers and Employed, 205. 
 
 (b) Brannigan v. Bobinson, [1892] 1 Q. B. 34i at 347 ; cp. Nordheimer 
 V. Alexander, 19 Can. S. C. B. 248, the case of a wall left in a dangerous 
 condition and blowing down. 
 
 (c) 17 Q. B. D. 187. 
 
 (d) Supra. 
 
 (e) [1907] 1 K. B. 649 ; Coughlin v. GiUiaon, [1899] 1 Q. B. 145. Ante. 
 184. 
 
Plant 189 
 
 The question of the ownership of tackle used in a business Chap. VI. 
 is not material in the consideration whether it is plant and owne^^of 
 whether the employer has a duty with regard to it. The SJfeBT* '° " 
 Court of Appeal there declined to aiBrm the proposition "'°™°' 
 that " any one who uses tackle which is not his own in the 
 sense that it has either been purchased or hired by him, 
 that is gratuitously lent to him, is not bound to take 
 reasonable care to see that the tackle is in a proper con- 
 dition." In whomsoever the property in the tackle may be, 
 the employer " has to take reasonable care that the tackle 
 is reasonably fit for the purpose." In the Court of Appeal 
 the tackle appears to have been assumed to be plant; in 
 the Divisional Court to have been an integral portion of 
 the ship ; hence non-congruent conclusions. 
 
 Thompson v. City Glass Bottle Co., (a) is a decision Thompson v. 
 where the judgments of the Court of Appeal, howeverr"^'^' '^°- 
 legally authoritative, seem to lack logical cogency. AV 
 machine broke down, an order was given that it should 
 "not be used again," and a "new machine had been 
 ordered." The day following the breakdown — a Sunday — 
 the workmen were removing the machine to make ready 
 apparently for the work next day, when the broken part 
 fell on the plaintiff's toe and injured him. The County 
 Court judge found that the machine " had finally ceased 
 to be used in the defendants' business," yet that it still 
 remained "plant." The Divisional Court held that the 
 words "plant connected with or used in the business of 
 the employer " had no " reference to things which have 
 ceased to be so connected or used." The Court of Appeal 
 reversed this, (b) Collins, M.B. saying : " In the first place 
 he [the County Court judge] decided that the machine was, 
 
 {a) [1901] 2 K. B. 483. 
 (6) [1902] 1 K. B. 233. 
 
190 Employers Liahilitij Act, 1880 
 
 Chap. VI. though in a defective condition, plant connected with or 
 used in the employer's business." (a) " On the question 
 whether there was any evidence on which the judge could 
 find that the machine was plant, we have the fact that it 
 was in such physical contiguity to the rest of the plant 
 that it had to be removed out of the way under the orders 
 of the foreman. There was no evidence so far as I can see 
 of an absence of intention to mend the machine, (6) and it 
 could not be contended that the mere fact of its being out 
 of repair caused it to cease to be plant, (e) The words of 
 the section ' used in the business of the employer ' do not, 
 in my opinion, mean that the plant must be in use at the 
 moment when the injury occurs to the workman, and a 
 machine does not cease to be plant in the interval between 
 the giving an order that it shall be repaired and the com- 
 pletion of the repair." {d) Stirling, L.J., observes : " The 
 evidence seems to show that the machine had ceased to be 
 used in the business." This seems inconsistent with 
 Collins, M.E.'s remark. He adds: "The question arises 
 whether it had ceased to be connected with the business." 
 The evidence on which the Court of Appeal hold that it 
 
 (a) At 234 the report states that the County Court judge found that the 
 machine " had finally ceased to he used in the defendants' husiness." 
 
 (6) If there had been, the evidence would have been irrelevant, since the 
 severing from the business was found by the County Court judge to he 
 final. Supra. 
 
 (c) No suggestion of so futile a contention anywhere appears in the 
 report. The syllogism the M.B. appears eager to refute seems something 
 as follows : Machinery out of repair (i.e. defective) is not defective plant. 
 The injury was caused by machinery out of repair. Therefore the injury 
 was not caused by defective plant. The actual contention that he does not 
 touch is: machinery that had "finally ceased to be used in the business," 
 and which causes injury while the business is not being carried on, is not 
 machinery connected with the business. Is a partner who has finally 
 severed his interest in his late firm still " connected with " it ? The case 
 really turns on the meaning attributable to this last phrase. 
 
 (d) It should be noted that the circumstances assumed in this passage 
 have a very distant, if any, resemblance to the facts of the case before the 
 Court. 
 
Plant 191 
 
 had not seems to be that it was physically where it might Chap. VI. 
 be expected to be, if it were plant, {a) 
 
 In this connection we must take sub-sec. 3 of sec. 2, (J) Knowledge. 
 which provides that the workman shall not be entitled to 
 recover where he knew of the defect (e) or negligence (for 
 the sub-section is of general application and is to be read 
 into all the provisions of the Act) which caused the injury, 
 and did not within a reasonable time (d) give, or cause to be 
 
 (a) Mr. Labatt, Master and Servant, 1955-1963, after ooUeoting the 
 oases on the words " connected with or used in the business of," says of 
 Thompson v. Oity Glass Bottle Co. : " It is manifest that this ruling throws 
 considerable doubt upon many of the cases cited in the last two sub- 
 sections." The converse proposition may also with plausibility be advanced. 
 
 (6) Ante, 126. 
 
 (c) In Britton v. Great Western Cotton Co., L. B. 7 Ex. 130, it was said 
 that mere knowledge of a defect does not bar the servant's claim. There 
 must be knowledge of the danger consequent on the defect. Ante, 186. 
 
 (d) "Eeasonable time" is a matter dependent upon the particular facts, 
 and variable according to circumstances : Washburn, &c.. Go. v. Patterson, 
 29 Gh. D. 48. See Stroud, Judicial Dictionary, sub voce Eeasonable. 
 
 The determination of what is reasonable time may be either a 
 question of law or a question of fact, or a mixed question of law and fact 
 (Taylor, Evid., s. 30). 
 
 The Sale of Goods Act, 1893 (56 & 57 Vict. c. 71, sec. 56), provides that 
 so far as the matters dealt with in this Act are concerned, reasonable time 
 is a matter of fact. 
 
 " I should observe," said Lord Herschell, G. (Hick u. Raymond and 
 Eeid, [1893] A. 0. 22 at 29), discussing obligations under a bill of lading, 
 " that there is of course no such thing as a reasonable time in the abstract. 
 It must always depend upon circumstances." Lord Ashbourne adds {I.e. 
 at 34) : " What is the meaning of this expression ' reasonable time ' ? It is 
 obvious that ' reasonable ' cannot mean a definite and fixed time. It would 
 not be ' reasonable ' if it was not sufficiently elastic to allow the considera- 
 tion of circumstances, which all reason would require to be taken into 
 account." 
 
 Three months have been held (Washburn and Moen Manufacturing 
 Co. V. Patterson, 29 Ch. D. 48) more than a reasonable time for giving 
 security for the costs of an appeal, where an application was made to 
 dismiss the appeal for want of prosecution on default for three months 
 to give security within a reasonable time. The rule was laid down 
 in these words : " We think that in general three months must be con- 
 sidered more than a reasonable time. Therefore in future, when three 
 months, or what the Court may consider a reasonable time, have elapsed 
 without security being given, an order will be made for immediate dis- 
 missal of the appeal, unless there are extenuating circumstances, in which 
 case the Court will take those circumstances into consideration, and if they 
 are sufficient will fix a further time. We do not lay it down as a rule that 
 less than three months will in no case be sufficient, but only that an 
 unexplained delay of three months is sufficient." 
 
 No rule can certainly be laid down to determine what is a reasonable 
 
192 
 
 Employers Liability Act, 1880 
 
 statutory 
 defence. 
 
 Chap. VI. given, informa-tion, either to the employer or to 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 defect or negligence. 
 
 This has been described by Smith, J., {a) as a " statutory 
 defence," " which theretofore did not exist." Its effect is 
 twofold : First, the workman who knows of a defect or 
 negligence has a reasonable time in which to communicate 
 it to the master or his representative under the section. If, 
 before the " reasonable time " is elapsed, an injury happens, 
 the workman has his right of action unaffected. If the 
 " reasonable time " is elapsed, and no notice is given, then 
 the presumption that the workman takes the risk is raised. 
 This is probably no more than the expression of the work- 
 man's right at common law, on the assumption that the 
 defect is not plain and patent at the time when he enters 
 the service. (6) Secondly, where the workman knows that 
 the employer or the superior has already knowledge of the 
 defect or negligence, he is not bound to renew information 
 of it. At common law in this case his acquiescence will be 
 evidence of an acceptance of the risk, unless we have, 
 whether explicitly or implicitly, the master's assurance that 
 the defect shall be remedied, (c) 
 
 The defence of contributory negligence is not affected by 
 this section, («Z) which must be construed as limiting and 
 not as extending the employer's liability, (e) Consequently, 
 
 time within which a workman, in proceeding imder the Employers 
 Liability Act, 1880 , is to give information beyond this — that the actual 
 ciroumsfcanoes of each case must he considered, and the conclusiou arrived 
 at must be in accordance with the particular facts that therein appear. 
 
 (a) Weblin v. Ballard, 17 Q. B. D. 125. 
 
 (6) Eureka Co. v. Bass, 60 Am. R. 1S2. 
 
 (c) Holmes v. Worthington, 2 F. & P. 533. 
 
 (d) Stuart v. Evans, 31 W. B. 706. Ante, 85. 
 
 (e) Thomas v. Quartermaine, 18 Q. B. D., per Bowen, L.J., 693 : per 
 Pry, L.J., 703 ; Ayres v. Bull, 5 T. L. R, 202. 
 
 Contributory 
 negligence. 
 
Contributory Negligence 193 
 
 it does not affect the conditions in which the rule expressed . Chap. VI. 
 by the maxim Volenti non Jit injuria is invoked, (a) It 
 appears rather to specify certain requisites — viz., failure to 
 communicate defects or negligence to the master, the proof of 
 which will exonerate the master from liability, even though 
 at common law similar proof would not be sufficient. 
 
 Though the defences of contributory negligence, (b) and contributory 
 of volenti non Jit injuria, are both open to the employer pf™** """/'' 
 under the Act, (c) when the workman's " acceptance or non- 
 acceptance of the risk is left to implication, the workman 
 cannot reasonably be held to have undertaken it unless he 
 knew of its existence, and appreciated or had the means of 
 appreciating its danger. But assuming that he did so, 
 I am unable to accede to the suggestion that the mere fact 
 of his continuing at his work, with such knowledge and 
 appreciation, will in every case necessarily imply his 
 acceptance. Whether it will have that effect or not 
 depends, in my opinion, to a considerable extent upon the 
 nature of the risk, and the workman's connection with it, as 
 well as upon other considerations which must vary according 
 to the circumstances of each case." (d) 
 
 At common law, if the workman gave notice to the i^gyj^™ '*" 
 employer of a defect or negligence in the system of working, 
 and subsequently sustained injury therefrom, in circum- 
 stances that negatived the presumption that he undertook 
 the risk, the workman would be entitled to recover in 
 respect of the same. If, however, he continued working in 
 
 (a) Ante, 37. 
 
 (6) Stuart v. Evans, 31 W. E. 706 ; see Chapter IV., ante, 85. 
 
 (o) Thomas v. Quartermaine, 18 Q. B. D. 685 ; see Prop. XI., Chapter II,, 
 ante, 31. 
 
 (d) Per Lord Watson, Smith v. Baker, [1891] A. C. 325 at 355. The 
 outcome of this doctrine is seen in Medway v. Greenwich Inlaid Linoleum 
 Co., Ltd., 14 T. L. B. 291, or perhaps better in Williams v. Birmingham 
 Battery and Metal Co., [1899] 2 Q. B. 338 at 345. Ante, 29. Webster v. 
 Foley, 21 Can. S. C. 580. 
 
 B.E.L. 
 
194 Emjployers Liability Act, 1880 
 
 Chap. VI, face of the risk, knowing that the employer was acquainted 
 with the existence of it, he would be unable to recover in 
 respect of injuries sustained by him. (a) And if he gave 
 notice of the defect or negligence but only to a foreman and 
 not to his employer personally, he would still be disentitled 
 to recover.(&) 
 fub™6e°tiin° -^y sub-sec. 3, sec. 2, the workman is safeguarded — 
 
 (1) If he informs his employer; 
 
 (2) If he informs some person superior to himself in 
 
 the employment ; 
 
 (3) If he knew that his employer or some person superior 
 
 to himself in the service of the employer already 
 knew of the defect or negligence, and, knowing 
 this, did not communicate with them. 
 
 ^yem' '° '''""° I* is *o ^® noted that the notice may be given by the 
 workman to " some person superior to himself in the service 
 of the employer." This phrase is not limited to a person 
 in superintendence under sub-sec. 2 of sec. 1 ; nor yet to a 
 person to whose orders the workman is bound to conform 
 under sub-sec. 3 of sec. 1. It must include any person of 
 superior grade about the same works with the injured work- 
 man, even ' though he is ordinarily engaged in manual 
 labour. The words " superior to himself in the service of 
 the employer " imply gradation in the same department of 
 work. Thus it would not be sufficient for a bricklayer's 
 labourer to give information of defect or negligence to a 
 foreman of carpenters not concerned with the work as to 
 which the defect or negligence is reported. The superiority 
 must be " in the service of the employer," not a superiority 
 of employment merely ; but there must exist a relation 
 
 (a) Griffiths v. London and St. Katharine Docks Co., 13 Q. B. D. 259. 
 See Propositions XII., XVI., and XYII., Chapter II., ante, 32, 37, and 38. 
 (6) Senior v. Ward, 1 E. & E. 385. 
 
Knowledge and Notice 195 
 
 between the person complaining and the person complained Chap. VI. 
 
 to, and a relevance of the complaint to the business of 
 
 each. 
 
 There does not appear to have been any decision as to Effect of the 
 
 '■ '■ •' sub-sectloQ. 
 
 what amount of knowledge of the employer or the"Buperior 
 would be sufficient to exonerate the workman "who has 
 failed within a reasonable time to give or cause to be given 
 information " of defect or negligence known to him to his 
 employer. The matter cannot be taken from the jury, and 
 the fertility of their excuses for the injured man, whatever 
 his conduct in this respect, may never be exhausted. , 
 
 Knowledge has been distinguished from notice; (a) and 
 in the present case it is manifest that something much 
 less than notice would be sufficient to satisfy the require- 
 ments of the sub-section. As it is the duty of the employer 
 to remedy defects and to maintain his plant and machinery 
 in a condition of efficiency, any information which should 
 suggest inquiry or would make it the employer's duty to 
 inquire — constructive and not actual knowledge — would 
 seem to be sufficient to bring a workman within the pro 
 taction of these words. The analogy, an imperfect one 
 though, of the bills of exchange cases, may be suggested 
 under which it has been decided that notice and knowledge 
 meant "not merely express notice, but knowledge or the 
 means of knowledge to which the party wilfully shuts his 
 eyes — a suspicion in the mind of the party and the means 
 of knowledge in his power wilfully disregarded. " (6) The 
 workman, we have seen, (c) is to be in the same position as 
 a licensee on business on the premises of the employer. 
 
 (a) Per Alderson, B., Burgh v. Legge, 5 M. & W. 418 at 422. Per Lord 
 Blackburn, Mildred v. Maspons, 8 App. Gas. 874 at 885. See per Lord 
 Selborne at 888. As to knowledge, see cmte, 30. 
 
 (6) May v. Chapman, 16 M. & W. 355 ; Raphael v. Bank of England, 17 
 C. B. 161. 
 
 (c) Ante, 186. 
 
196 Employers Liability Act, 1880 
 
 Chap. VI. Now, the position of a licensee is that he can charge the 
 occupier of premises if the occupier " discovers the defect 
 and does not cure it, or if he did not discover what he 
 ought on investigation to have discovered ; " (a) or, to alter 
 the phraseology, which he ought to have investigated and 
 then ought to have discovered. 
 
 Bluard "■ Weblin v. Ballard (b) favours this view. Deceased was 
 
 a fireman in defendants' brewery. To reach a valve in a 
 pipe near the ceiling a ladder was used. This, through a 
 peculiarity in the construction of the premises, had to rest 
 against a bend in the pipe beneath that containing the 
 valve; and on this account, it could not rest upon it 
 securely. The ladder had been used for two years, and 
 had no hooks or stays whereby it could be steadied. 
 Deceased was found dead at the bottom of the ladder. It 
 was suggested that the ladder had slipped while he was on 
 it, and thereby caused his head to strike against a fly-wheel. 
 The county court judge found for the plaintiff, saying 
 that the ladder, placed as it was, "was manifestly a most 
 dangerous method of getting at the upper valve, and, 
 therefore, an unsafe way or portion of the defendants' 
 plant, and for which the defendants and their manager, 
 who were constantly on the premises, must be held re- 
 sponsible." It was argued that the statutory defence was 
 established, since there was no evidence that the employer 
 knew of the risk, and the deceased should therefore have 
 given notice. The Court, however, held that "there was 
 evidence upon which the learned County Court judge could, 
 if he had been so minded, find that the plaintiff [? the 
 deceased] was aware that the defendant knew of the defect." 
 Since there was no pretence even of evidence of any direct 
 
 (a) Per Blackburn, J., Tarry v. Ashton, 1 Q. B. D. 314 at 319. 
 (6) 17 Q. B. D. 122. 
 
Superintendence 197 
 
 communicated information, it is plain that in the opinion Chap. VI. 
 
 of the Court inferential knowledge — knowledge presumed 
 
 from the general condition of things — is sufficient. 
 
 II. Negligence in Superintendence. 
 
 Secondly, the workman is to be in the same position as ii. Negugence 
 a licensee (a) where he is injured " by reason of the negli- superintendence 
 
 ^ ' . . entrusted to him. 
 
 gence of any person in the service of the employer who has 
 any superintendence entrusted to him whilst in the exercise 
 of such superintendence." (6) The definition clause limits 
 those having superintendence, which entails chargeability 
 of the master, to persons whose sole or principal duty is 
 that of superintendence, and who are not ordinarily engaged 
 in manual labour, (e) 
 
 The negligence must also be (1) that of a person whose perS™°°'" 
 principal duty is superintendence, and (2) must be negli- j°^j~*'""- 
 gence while in the exercise of the superintendence. Thus, ^°'''''- 
 as to the first requisite, in Kellard v. Rooke, {d) the injury 
 was caused through the foreman of a gang of labourers, who 
 . was working with them, not giving sufficient warning of 
 the coming of a bale of goods which the gang was engaged 
 in packing, so that the plaintiff was injured. The plaintiff 
 was held disentitled to recover, because a ganger, the 
 foreman of a gang of labourers, who is working with his 
 hands all the day, is ordinarily engaged in manual labour, 
 and so not a superintendent within the Act. 
 
 (a) Ante, 136. Post, 292. 
 
 (6) S. 1, sub-s. 2. Ante, 124. In the Ontario, British Columbia, 
 and Manitoba Acts the definition runs : " Superintendence shall be con- 
 strued as meaning such general superintendence over workmen as is 
 exercised by a foreman, or person in a like position to a foreman, whether 
 the person exercising superintendence is or is not ordinarily engaged in 
 manual labour." 
 
 (c) S. 8. 
 
 (d) 19 Q. B. D. 585 ; 21 Q. B. D. 367. 
 
198 
 
 Employers Liability Act, 1880 
 
 Chap. VI. 
 
 AVright V, 
 Wallis. 
 
 Shaffers v. 
 General Steam 
 Navigation Co. 
 
 In this case Wright v. Wallis (a) was mentioned, in 
 which the Court of Appeal, apparently sitting as a Divisional 
 Court, set aside a nonsuit by the County Court judge where 
 a plaintiff was injured by iron thrown into a barge by a 
 person, according to the evidence of the plaintiff, " at work 
 on the stage, and giving all orders at the time of the acci- 
 dent." The Court set aside the nonsuit without reference 
 to the fact of the person giving the order being ordinarily 
 enga.ged in manual labour or not ; and possibly because the 
 injury was by reason of the act of a person to whose orders 
 the workman at the time of the injury was bound to conform 
 and did conform, and in consequence of which conformity 
 the accident happened ; since Lord Esher, M.E., said : An 
 argument addressed to the Court was " that if you ordered 
 a man to stand in a certain place, and then threw something 
 at him and injured him, the injury was not caused by his 
 conforming to the order, but solely by the subsequent act." 
 Lindley, L.J., however, who was a member of the Court in 
 Wright V. Wallis, in Kellard v. Eooke (h) explains that 
 decision to have been, that there was not sufficient evidence 
 to show what was the real position of the person whose 
 negligence caused the injury, and as the Court had not the 
 materials to decide it, they sent the case down for further 
 investigation. 
 
 On the second point, Shaffers v. General Steam Naviga- 
 tion Co. (c) may be referred to. The plaintiff was employed 
 with other workmen in loading corn on board a ship, and, 
 at the time of the accident, was in the hold stowing away 
 the sacks as they were lowered by means of a steam crane. 
 To control the motions of the crane there was a " guy-rope " 
 fastened to it, in charge of a man whose duty it was to 
 
 (a) 3 T. L. R. 779 {0. A.). 
 
 (b) 21 Q. B. D. 370. 
 
 (c) 10 Q. B. D. 356; Harris v. Tinn, 5 T. L, E. 221. 
 
Superintendence 199 
 
 stand by the hatchway and to warn the men working below Chap. VI. 
 to stand from under, to guide the beam of the crane by 
 means of the guy-rope, and to tell the man who was actually 
 working the crane when to lower and when to hoist. Through 
 the negligence of this man, who neglected to check the 
 movements of the crane by means of the guy-rope, an 
 accident happened, and the plaintiff was injured. The 
 Court said that, assuming the man whose negligence caused 
 the accident to have been in superintendence, the accident 
 did not occur whilst he was in the exercise of it. The 
 accident arose from his negligence as a workman, and 
 not as superintendent. However, in the Scotch case of 
 Sweeney v. McGilvray (a) the distinction between negli- jJ^gU^f/- 
 gence in superintendence and negligence in manual labour 
 did not commend itself to the judges, and, though urged in 
 argument, is not alluded to in the judgment. Shaffers's 
 case does not seem to have been cited. Their decision 
 goes to establish that in Scotland no distinction will be 
 drawn "between negligent superintendence and negligence 
 of a superintendent. 
 
 " Assuming that he [the man whose duty it was to guide 
 the crane by means of the guy-rope] superintended the 
 working of the crane, was he exercising such a super- 
 intendence as is contemplated by the Act ? I am clearly of 
 opinion that he was not a person whose sole or principal 
 duty was that of superintendence, and that the accident 
 was not caused by his negligence ' whilst in the exercise of 
 such superintendence.' " 
 
 On the other hand, though there may be a duty of workman ^^ 
 superintendence, if the workman superintending is " ordi- gff„'^,Wour. 
 narily engaged in manual labour " — is, in fact, no more than 
 
 (a) 24 So. L. R. 91. 
 
200 Employers Liability Act, 1880 
 
 Chap. VI. a "ganger" (a) — he is not within the section, and the 
 "" employer would not be liable for his negligence. 
 
 A lamp-man in the service of a railway company was 
 injured while crossing the railway line by reason of a truck 
 being negligently loaded with railway spindles, some of 
 which projected and caught the man, whereby he was 
 crushed between that and another truck. Another man in 
 the employ of the railway company was at the head of a 
 body of men who loaded the truck. His negligence in not 
 properly superintending the loading was alleged as the 
 cause of the accident. The company's case was that he had 
 no superintendence. His duty was to load properly. It 
 was agreed that if his duty required him to be " ordinarily 
 engaged in manual labour," the company were not liable. (&) 
 This was the actual ground of decision in Kellard v. 
 Eooke, (c) where the person in superintendence was also 
 engaged in manual labour. His work was hauling and 
 throwing bales of wool into a ship's hold. The injury was 
 sustained through a bale put in motion by him in the 
 exercise of a duty cast upon him as an ordinary work- 
 man, which bale fell upon another workman. The 
 negligence was thus " whilst in the exercise of " the 
 manual labour, and not in the exercise of superintendence 
 within the sub-section; although at the moment of the 
 accident the person causing the injury was superintending 
 during a temporary absence of the defendant. 
 
 (a) " Ganger " seems to be a word of uncertain connotation ; see 
 Levering v. St. Katharine Docks Co., 3 T. L. E. 607, where it is assumed 
 to signify a person " not ordinarily engaged in manual labour." With 
 this compare per Lord Esher, M.B., in Stamp v. Williams, 12 T. L. E. 516. 
 
 (6) Hall V. N.-E. Ey. Co., 1 T. L. E. 359. 
 
 (c) 19 Q. B. D. 585 ; 21 Q. B. D. 367 ; cp. Wright v. Wallis, 3 T. L. E. 
 779, which is distinguished in the Court of Appeal. In Aitken v. Newport 
 Slipway Dry Dock, 3 T. L. E. 526, it was held to be negligence in a foreman 
 having ordered one shift of workmen to disconnect machinery to omit to 
 inform the relieving shift of what had been done. 
 
Superintendence 201 
 
 As we have just seen, the fact of beiug engaged in Chap. VI. 
 manual labour at the momeat of the accident does not -walking 
 render the superintendent less a superintendent if the 
 manual work he has undertaken is merely voluntary and 
 temporary, and superintendence is his principal duty. 
 Neither is it necessary that the superintendence should 
 be over the person injured; so that when a "walking 
 foreman " interfered with work with which, it was alleged, 
 he had nothing to do, the Court held that he was in the 
 exercise of superintendence when he gave the order which 
 resulted in the accident, (a) 
 
 Neither is it necessary that the superintendence should over tht wor™."^ 
 be over workmen. It may equally be within the Act if over 
 work, and that in a different department from that in which 
 the person injured is working. 
 
 In Kearney v. NichoUs, (b) where this was held by 
 Denman, J., that learned judge puts the following case : 
 " Suppose there was a factory, and that the person injured 
 was one whose duty it was to go every day to the factory 
 and put the bales of goods into carts ; and suppose that the 
 stables of the factory were totally removed from the other 
 departments, and that the foVeman of the stables negli- 
 gently and improperly caused a furious horse to be put in a 
 cart, the words of the Act would cover an injury caused by 
 such negligence." (c) 
 
 Mr. Labatt, (d) however, says, "The superintendence 
 contemplated by the statutes is that which is exercised 
 over other men, not over inanimate appliances." "It is 
 
 (a) Bay v. WaUis, 3 T. L. E. 777 ; affd. 51 7. P. 519. 
 {b) 76 Law Times newspaper, 63. 
 
 (c) This would be a case of defective plant under sub-s. 1 ; see 
 Yarmouth v. France, 19 Q. B. D. 647. Ante, 7. 
 
 (d) Master and Servant, 1997. 
 
202 Employers Liability Act, 1880 
 
 Chap. VI. clearly settled that a master cannot be held liable, as for 
 negligence in the exercise of superintendence where the 
 culpable person was an employe whose duty was essentially 
 the operation of a piece of machinery, though in so doing 
 he necessarily exercised some control over other employes 
 who were affected by its movements " ; and for this proposi- 
 tion he cites Farnham v. New Bank Coal Co., {a) where an 
 engineman engaged in hoisting the cage in a mine from the 
 mid-working, who started the cage before the indicator 
 showed that the gate at the entrance to the shaft was 
 closed, and thus caused the death of a pitman, was held not 
 to be a person having superintendence entrusted to him. 
 In favour of the view taken by Denman, J., it may be 
 noted that the words used, differing from those of the 
 definition in sec. 8, are not " superintendence " merely, but 
 " any superintendence." 
 
 Statutory rules are prescribed for working a coal mine. 
 One of these is so systematically disregarded that the 
 ignoring it becomes the regular practice in the mine. In 
 consequence of the discontinuance of the statutory rule an 
 accident happens. The mine manager is guilty of negligence 
 in superintendence entrusted to him, in not enforcing the 
 rule. (S) 
 
 Superintendent If a persou has " Superintendence entrusted to him " he 
 
 not a workman, , . 
 
 is not able to recover as a "workman" under the Act, 
 since to be a workman he must be " engaged in manual 
 labour " within the definition clause ; (c) while to be in 
 
 (a) [1896] 23 B. 722. See post, iCfl. 
 
 (6) Baddeley v. Earl GranviUe, 19 Q. B. D. 423. See Medway v. Green- 
 wich Inlaid Linoleum Co., Ltd., 14 T. L. R. 291 ; Connolly v. Young's 
 Paraffin Light and Mineral OU Co., Ltd., 22 B. 80: and Chapter U., 
 Propositions XV.-XVIII. Ante, 85. 
 
 (c) Of the Employers and Workmen Act, 1875 (39 & 32 Viot. c. 90), 
 s. 10, 
 
Superintendence 203 
 
 superintendence within the Act (a) he must be " not ordi- Chap. VI. 
 narily engaged in manual labour." 
 
 A foreman handed a plank to a labourer, and called on osbome «. 
 
 *■ Jackson, 
 
 him to take it. He tried to do so, but failed through being 
 too far off to get hold of it, and the foreman letting go his 
 end, the plank slipped and knocked down some shoring, 
 which fell upon and injured the labourer. On these facts a 
 contention was raised that the foreman was not in super- 
 intendence, for that the injury was caused in the course of 
 manual labour. The answer was that had the foreman 
 directed some one else to do what he did, he would have 
 been negligent in superintending, and he was no less so 
 because he chose to take two functions upon himself, viz. 
 superintending and assisting. (6) 
 
 The foreman in this case, it must be noted, was " not 
 ordinarily engaged in manual labour." His "sole or 
 principal duty " was superintendence, and his interference 
 in manual labour was for a special and temporary purpose. 
 
 It has been contended that to bring a case within the 
 sub-section " the negligence complained of must occur not 
 only during the superintendence, but substantially in the 
 exercise of it." This, however, does not very clearly appear 
 to be so. In Eay v. Wallis(c) the point was taken, but 
 was not decided. 
 
 In Scotland, in Sweeney v. McGrilvray, (d) the same swecney v. 
 point seems to have been suggested. A plasterer entered 
 into a contract with a tramway company to lay premises 
 with concrete. To enable the work to be begun at seven 
 
 I (a) 43 & 44 Viot. o. 42, s. 8. Post, 129. 
 
 (6) Osborne v. Jackson, 11 Q. B. D. 619 ; Donnelly v. Spencer & Co., 36 
 S. L. E. 876; IP. 1109. 
 
 (c) 3 T. L. E. 777. 
 
 {d} 14 R. 105 ; op. M'Manus v. Hay, 9 E. 425. 
 
204 Employers Liability Act, 1880 
 
 Chap. VI. o'clock in the morning it was the duty of the tramway 
 company to remoTe the cars there over-night. They failed 
 to do this, and the plasterer's foreman asked the workmen 
 to come ten minutes before seven to clear the cars out of 
 the way for the work. The men were only paid as from 
 seven o'clock. It was no part of the duty of either the 
 foreman or of the men to remove the cars. They had, how- 
 ever, done so for a fortnight previous to the occurrence 
 of the accident. A workman was injured through the 
 foreman negligently pushing a tramcar against him in 
 running it out. The workman brought an action. On 
 behalf of the defendant it was argued that the accident 
 was not due to anything done whilst in the exercise of 
 superintendence, but to something done by the foreman 
 in his capacity of labourer. This contention seems to have 
 been disregarded by the Second Division of the Court of 
 Session. In giving judgment, the Lord Justice Clerk was 
 the only judge who referred to it, and he did so only to 
 remark that if the foreman were not within sub-sec. 2, he 
 still was within sub-sec. 3. 
 
 view, 
 
 Mr. spena' Mr. Spcus (a) cousidcrs the words were inserted "to 
 
 meet some such case as this : A foreman in one department 
 goes into another department, and, with the assent of the 
 men working under the foreman of the latter department, 
 gives as a volunteer manual assistance, and an accident 
 happens through his negligence." 
 
 The words " whilst in the exercise of such superintend- 
 ence" were not improbably inserted in the Act to fix 
 the employer's liability for acts done by the superintendent 
 during the period of his superintendency, and not rigidly 
 to limit the employer's liability to acts of superintendence 
 
 (a) Spens and Younger, Employers and Employed, 228. 
 
Superintendence 205 
 
 merely. The point is, however, of very small importance, Chap. VI. 
 as was intimated in Sweeney v. McGilvray, (a) since matters 
 not comprehended under this sub-section are within the 
 next. 
 
 Smith V. Harrison (&) is a case of a loom insufficiently 
 guarded so that the shuttles flew out. Complaints had 
 been made to the overlooker. 
 
 It is not negligence for a person in superintendence to unlawful order. 
 give an order for the excution of dangerous work where 
 the nature of the work is obvious, though injury happens 
 in the course of doing what is enjoined ; (c) nor is the 
 employer liable, where an injury occurs through an accident 
 arising from the unsafeness of premises, when the person 
 in charge of the work has consulted an expert, and has 
 been advised by him that they are safe — that is, where the 
 actual danger is not self-evident — before ordering his 
 workman to work upon them, even if, through the fault 
 of the expert, they are not in fact safe, (d) 
 
 The Scotch case of Cook v. Stark (e) goes too far. cookD. stark. 
 There it was held by the Second Division of the Court of 
 Session that, though the manager of a work may delegate 
 to others the ordinary operations in use in the work, yet 
 it is his duty to give his personal superintendence to an 
 operation which is dangerous and unprecedented, and that 
 his failure to do so will, in the event of an accident, amount 
 to such culpa as will render his master liable in damages 
 under the Act. The learned Lords who held this seem 
 to have overlooked the consideration pointed out by Lord 
 
 (o) 14 E. 105. 
 
 (b) 5 T. L. E. 406. 
 
 (c) Booker v. Higgs, 3 T. L. E. 618. 
 
 (d) Moore v. Gimson, 5 T. L. E. 177 ; Kettlewell v. Paterson, 24 So, 
 L. E. 95. 
 
 (e) 14 E. 1. 
 
206 Employers Liability Aet, 1880 
 
 Chap. VI. Cairns, C, in Wilson v. Merry : (a) " The result of an 
 obligation on the master personally to execute the work 
 connected with his business in place of being beneficial 
 might be disastrous to his servants, for the master might 
 be incompetent personally to perform the work." In the 
 case in point this view would appear to have special force, 
 since it would not improbably be disastrous for a general 
 manager personally to have the superintendence of blasting 
 operations ; which would much more efSciently be entrusted 
 to an ordinary engineer, not to say to an eminent engineer. 
 Still, the case is in accord with the bulk of American 
 authority. 
 
 Superintendence, To prove Superintendence, the acts of one " in putting 
 
 how proved. i jt 
 
 persons out of the shop " and what he said while doing so 
 may be given ; (6) and the question whether the principal 
 duty was superintendence or not is for the jury, (e) The 
 foreman of a "section gang" on a railway, who did not 
 work himself but looked on to see that the work was done, 
 and who gave warning of the approach of trains to the men 
 working, has been held a person exercising superintend- 
 ence, {d) So has a " working foreman " who interfered 
 with work with which it was alleged he had nothing to 
 do. (e) But a workman who was assisting another in 
 unloading a cart is only a fellow-workman; (/) and so is 
 a ganger or gang-foreman ordinarily engaged in manual 
 labour. (^) The superintendence contemplated by the statute 
 
 (a) L. B. 2 So. App. 326, 332. 
 
 (6) McOabe v. Shields, 175 Mass. 438. 
 
 (c) Eiou 1). Rookport Granite Co., 171 Mass. 162. 
 
 (d) Davis v. New York, &o., Rd. Co., 159 Mass. 532, 
 
 (e) Ray v. WaUis, 8 T. L. R. 777, afEd. 51 J. P. 519. 
 
 if) AUmaroli v. Walker, 78 Law Times newspaper, 391. 
 (g) Hall V. N.-B. Ry. Co., 1 T. L. R. 359 ; Kellard v. Eooke, 19 Q. B. D.' 
 585, 588. 
 
Superintendence 207 
 
 is said to be that which is exercised over workmen, not that Chap. VI. 
 over machinery ; so that an engineman engaged in hoisting 
 the cage in a mine from the mid-working, who started the 
 cage before the indicator showed that the gate of the shaft 
 was shut, has been held not to be a person having super- 
 intendence entrusted to him, (a) and so too it has been 
 held in New South Wales that one in charge of the lever 
 working a steam-hammer is not in superintendence ; (6) 
 on the other hand, the contrary was held by Denman, J., 
 in Kearney v. NichoUs (c) at Nisi Prius and quite obiter. 
 
 The Massachusetts Act, it must be remembered, is in the 
 same words as the English Act; and it has been decided 
 in that State that the employer is not made answerable 
 "for acts of superintendence negligently performed in 
 his service by an ordinary workman, or by one who is both 
 workman and superintendent in making declarations which 
 may be interpreted either as orders of a superintendent or 
 as assurances of a fellow-workman, if in fact they are merely 
 such assurances." (d) 
 
 III. Injuby through conforming to Orders. 
 Thirdly, the workman is to be in the same position as m. where the 
 
 ■' . workman is 
 
 a licensee (e) where he is injured " by reason of the negli- J5-'t"'^j\"'^™ 
 gence of any person in the service of the employer to whose ^hiroXa' he 
 orders or directions the workman at the time of the injury Mnform" *" 
 
 (a) Farnham v. New Bank Coal Co., 23 R. 722. Ante, 201. 
 (6) Hannan v. Hudson, 7 W. N. (N. S. W.) 105. 
 (c) 76 Law Times newspaper, 63. 
 
 {d) 10 Oavagnaro v. Clark, 171 Mass. 850; Joseph v. Whitney Co., 177 
 Mass. 176. 
 
 (e) Ante, 136. Post, 292. 
 
208 Employers Liability Act, 1880 
 
 Chap. VI. was bound to conform, and did conform, where the injury 
 resulted from his having so conformed." (a) 
 
 Scope. The scope of this provision is indicated in a judgment 
 
 of Lord Craighill in the Scotch case of Dolan v. Anderson, (b) 
 He says : " I see in the terms of the enactment no founda,- 
 tion for any distinction of classes upon this subject. The 
 question is not whether the person who gave the orders 
 or directions occupied a high or a humble position in the 
 works. It is simply whether, whatever was his position, 
 he was one to whose orders or directions at the time of the 
 accident the workman injured was bound to conform. If he 
 was, the words of the statute are satisfied, and a limitation 
 of their operation for the purpose of restricting the benefit 
 the statute was intended to confer would be, not an inter- 
 pretation of the words of the clause, but a capricious 
 interference with its application." To the same effect is 
 
 iverd Young in Lord Youug in M'Manus V. Hay : (c) " As I understand 
 
 M'Manua v. Hay. ° , 
 
 the expression in the statute', ' to whose orders or directions 
 the workman at the time of the injury was bound to 
 conform,' it means that the relative position of the parties 
 was such that the one owed obedience to the other, and 
 that the order was such that it could not be declined 
 without contumacy." 
 
 Sdiand Ry. Co. I^ Bunker V. Midland Ey. Co. (d) the Court laid con- 
 siderable stress on the provision that the injured person not 
 only does conform to orders, but is bound so to do. The 
 
 (a) S. 1, sub-s. 3. The Canadian and Australian Acts are in the same 
 words. 
 
 (6) 12 B. 804, 808. 
 
 (c) 9 R. 429. Smith, J., in Kellard v. Rooke, 19 Q. B. D. 588, was of 
 opinion that " a mere foreman of a gang of labourers will not do." 
 
 (i) 47 L. T. 476. Cp. Snowden v. Baynes, 25 Q. B. D. 193 ; Murphy v. 
 Smith, 19 C. B. N. S. 361 ; and the American case, Union Pacific Rd. Co. 
 V. Fort, 17 Wall (U. S.) 553. 
 
ConformiTig to Orders 209 
 
 plaintiff in that case was van guard in the defendants' Chap. VI. 
 service, and under the age of fifteen. There was a rule of 
 the company known to the plaintiff that no van guslrd under 
 the age of fifteen should drive a van. The defendants' fore- 
 man promised plaintiff extra money to drive a van; the 
 plaintiff consented, and whilst so engaged was injured. 
 The Queen's Bench Division held that he had no right of 
 action, since he was not bound to obey the order given to 
 him. (a) This ruling is identical with what has been 
 decided in Scotland in M'Manus v. Hay, (J) in the words of 
 Lord Young just quoted, (c) But the elements of the 
 injured boy's youth, the constraint put upon him by the 
 foreman's position, and the " allurement " to a young person 
 in an opportunity to drive, which might have availed at 
 common law, were not touched on. The " relative position 
 of the parties" might perhaps have induced a different 
 decision, if probably more had not appeared than the report 
 discloses. 
 
 Assuming, however, that the plaintiff is bound to obey 
 an order, there is no need for the order to be by express 
 words ; it will be for the jury to say whether the order was 
 to be implied from the circumstances. (^) The facts in 
 Millward v. Midland Ey. Co. (e) showed that plaintiff, a Muiward ». 
 
 J ^ ' r ' Midland Ky. Co. 
 
 (a) In Marley v. Osborn, 10 T. L. E. 388, the jury found that the order 
 given was one the plaintiff was bound to obey. The evidence on which 
 they found this is by no means clear. Indeed, it would appear from the 
 facts that in giving the order the foreman was transgressing rules binding 
 on himself and the plaintifE. If so, Bunker v. Midland Ky. Co. appears 
 directly in point, and no indication is given in the report of any assump- 
 tion of overruling it. If, on the other hiind, there was evidence to warrant 
 the finding of the jtiry, there does not appear room for any diflfioulty in the 
 decision. 
 
 (6) 9 E. 425. 
 
 (c) L.C. isa. 
 
 {d) MUlward v. Midland Ky. Co., U Q. B. D., per Day, J., 70 ; Canavan 
 V. John Green & Co., 8 P. 275. 
 
 (e) li Q. B. D. 68 ; approved Wild v. Waygood, [1892] 1 Q. B. 783 ; 
 Barber v. Burt, 10 T. L. E. 883, 
 
 B.E.L. P 
 
210 Employers Liability Act, 1880 
 
 Chap. VI. boy, was engaged under a carman in unloading three frames 
 from a van. Tlie method that ought to have been adopted 
 was that of untying the three frames, then tying two of 
 them up again, and removing the third. The method 
 actually adopted was to untie the three frames, then to 
 remove the first, without waiting to see the two remaining 
 frames secured. The boy, without express orders, assisted 
 in this operation and was injured. The Court held there 
 was evidence that he had conformed to the carman's orders, 
 which, though not expressly given, were implied from the 
 course adopted in co-operating with the carman. 
 Ciix D.Hamilton This docisiou was generalized in the Canadian case of 
 
 Sewer Pipe Co. ° 
 
 Cox V. Hamilton Sewer Pipe Co. (a) into the formula : 
 "No specific order at the time of the injury is req[uisite — 
 general prior orders suffice." 
 
 Hooper v. Holme (h) is in the same line of cases. A 
 mason's labourer employed by contractors widening a rail- 
 way line was killed by a passing train. Orders had been 
 given that the work was not to be done without a look-out man 
 being there ; but there was none at the time of the accident. 
 When the deceased arrived a mason was mixing cement for 
 himself at the end of one of the sleepers. Deceased com- 
 menced mixing cement at the end of another. The jury 
 found that the mason was foreman of the gang ; that the 
 deceased was bound to obey his orders ; and that he ordered 
 the deceased to commence work when there was no look-out. 
 Mathew, J., however, directed judgment to be entered for 
 the defendants : Was the deceased man " given an order to 
 which he was bound to conform ? The men were bound not 
 to work unless a proper look-out was kept ; special orders 
 
 (a) 14 Ont. R., per Boyd, 0., 311. Medway v. Greenwich Inlaid 
 Linoleum Co., 14 T. L. K. 291 ; Grand Trunk Ky. Co. v. Weegar, 23 Can, 
 S.C. 422. 
 
 (b) 12 T. L. R. 537, affirmed in C. A. 13 T. L. R. 6. 
 
Conforming to Orders 211 
 
 had been given to that effect. To make the employer Chap. VI. 
 liable under sub-sec. 3 there must be some one who had 
 authority to give orders — who had a mandate from the 
 employer — and the workman must be a man who by the 
 terms of his contract was bound to obey the man put over 
 him. There was no evidence that Cross [the mason] had a 
 mandate to give such an order as the one that caused 
 Hooper's death, or that Hooper was bound to obey. Further, 
 there was no evidence that Cross did order the deceased to 
 do his work in this particular way." 
 
 The last case was relied on by the defendants in 
 Reynolds v. HoUoway, (a) where plaintiff's husband was g^ynoids «. 
 killed while taking down a partition in a house under 
 orders from the foreman. There was evidence that the 
 order was negligent. Rigby, L. J., pointed out that Hooper 
 V. Holme was not applicable, because in Hooper v. Holme 
 " there was no order at all given to the deceased man to 
 go into the dangerous place where he was killed, and so 
 he might have chosen a safe place for mixing the cement." 
 In the present case the order was definite to do a particular 
 piece of work. 
 
 To this sub-section may more appropriately be referred Sweeney ». 
 the case of Sweeney v. McGilvray, (6) before alluded to. 
 Evidence was given that if the workmen had refused to do 
 what was required of them they would have been told to 
 "look for another job." This evidence, in the opinion of 
 the majority of the Court, concluded the case ; though, as 
 has before been noticed, there remained the point that the 
 injury resulted through negligent co-operation in the execu- 
 tion of an order not negligently given, and not from con- 
 formity to an order which in itself was reasonable and which 
 could be safely carried out. Shaffers v. General Steam 
 
 (o) 14 T. I/. K. 551. 
 
 (6) 24 So. L. E. 91. Ante, 199. 
 
212 Employ&rs Liability Act, 1880 
 
 Chap. VI. Navigation Oo. {a) does not appear to have been cited to the 
 Court, though Osborne v. Jackson (h) was. 
 
 M'Manus u. Hay. In M'Mauus V. Hay (c) the sheriff held that if the order 
 is a proper one, then subsequent negligence is not actionable 
 inerely because it occurs in carrying out the order. That view 
 has been disputed, {d) " It seems that that construction is 
 not correct, and that the wording of the sub-section is wide 
 enough to include some injuries resulting from obedience to 
 an order not itself negligent, where the injury has been 
 caused by the negligence of the person who gave the 
 order." The justness of this criticism is contingent on the 
 closeness of the connection established between the giving 
 of the order and the negligence that follows it. The 
 liability of the master is to be dependent on conformity of 
 the workman to orders " where the injury resulted from his 
 having so conformed." In law the injury must be the 
 ordinary natural sequence from the neglect which produces 
 it ; (e) and it would seem, unless some special rule of inter- 
 pretation is to be applied, that the injury must be the 
 natural sequence of conformity. To produce the injury in 
 the case suggested another cause must be introduced — 
 negligence; and it is of this that the injury is the conse- 
 quence and not of having conformed to a proper order. The 
 fact that the workman conformed to an order not in itself 
 negligent is only the condition, and not the cause, of the 
 injury, and which in ordinary case would not give a cause of 
 action against the person responsible for the order ; while, 
 so far from the action being given by the Act, it in terms 
 provides that the injury must have resulted from having 
 
 (a) 10 Q. B. D. 356. 
 (6) 11 Q. B. D. 619. 
 
 (c) 9 K. 425. 
 
 (d) Roberts and Wallace, Employers' Liability (4th ed,), 301. 
 
 (e) See Wharton, Negligence, § 97 et seqq. 
 
Conforming to Orders 213 
 
 conformed to the orders ; and this, except in a perverted Chap. VI. 
 and non-natural sense, which is nowhere imposed on the 
 words, is not the case. 
 
 This argument derives countenance from Martin -y. '('"'i'l ,"■ 
 
 ° Coanah 8 Quay 
 
 Connah's Quay Alkali Co. (a) The plaintiff was engaged '^""'" '^''• 
 upon a defective waggon. The foreman called to him to be 
 quick ; whereupon, in order to save time, he gave a signal 
 for the engine to which the waggon was attached to move. 
 The effect was that, having started the engine, he tripped 
 over loose bricks, lost his footing, and was injured. The 
 Court drew a distinction between " the immediate cause " 
 and the " remote cause " of the accident ; and held that the 
 plaintiff could not recover, as the accident was not " caused " 
 by the defect, though it appears that had there been no 
 "defect" there would have been no accident; since the con- 
 dition of things from which the accident arose would not 
 have existed, (h) 
 
 In Wild V. Way good, (c) however, the defendant's argu- ^"'*„''- . 
 ment was that the accident in respect of which the action 
 was brought was not caused by conformity to the orders of 
 the man whose negligence caused the injury, in the sense 
 of conformity being the causa causans, but only in the sense 
 of its being the causa sine qua non, and that the section did 
 not include responsibility for such remote consequences. 
 The plaintiff stood on a plank in conformity to orders when 
 
 (a) 33 W. E. 216. 
 
 (6) Cp. Coyne v. Union Pacific By. Co., 133 U. S. (26 Davis) 370. The 
 facts show that a workman was injured by the fall of steel rails which he 
 and other hibourers were trying to load from the ground upon a flat car. 
 A rail while being raised struck the side of the car and fell back. The 
 workman was injured. The negligence alleged was that of a foreman, who 
 moved out the train to which the oar belonged in the face of an approach- 
 ing train, to avoid which the labourers were hurrying to load the rails, and 
 failed to give the customary word of command to lift the rail in concert. 
 The Court under a law similar to the Employers Liability Act, 1880, held 
 unanimously that no case was made put. 
 
 (c) [1892] 1 Q. B. 783. 
 
214 
 
 Employers Liability Act, 1880 
 
 Jadgmcnt of 
 Lord Herscbell, 
 
 Chap. VI. the man who gave the orders was guilty of an. act of 
 negligence, which caused the injury by upsetting the plank. 
 This argument was unsuccessful, Lord Herschell (a) saying : 
 " It is not necessary to endeavour in the present case to 
 determine or lay down any general rule as to the construc- 
 tion of this section beyond this, that I am quite clear it is 
 not limited to an injury arising from an order, which order 
 is negligent in itself. That is one contention put before us. 
 I think the words used in the Act of Parliament are con- 
 clusive against any such construction. It would be limiting 
 it far beyond what the words either require or will admit of. 
 That is all I lay down as regards the construction of the 
 section, beyond this : that I do not think it essential to 
 show that the conformity to the order was what has been 
 called the cmisa causans of the injury. The negligence 
 must be proved, and if you prove the negligence then it is 
 sufficient if, in addition to proving that, you also prove that 
 the injury resulted, not from the negligence alone, but from 
 the negligence and the conforming to the order." Kay, 
 L.J., considered (b) the three possible constructions of the 
 sub-section; first, that the negligence from which the injury 
 arises must be in the order itself ; secondly, that any negli- 
 gence is aimed at that may occur while conforming to an 
 order; or thirdly, that the only negligence within the 
 section is that which is " closely connected with the order 
 that is given." He concluded that the third construction 
 was the correct one. Of this close connection, a phrase 
 the Lord Justice subsequently varies by speaking of an 
 "intimate connection," he refrains "from attempting to 
 give any general definition that might govern other 
 cases," (c) and is content with holding that the case before 
 
 Judgment of 
 Kay, L.J. 
 
 (a) [1892] 1 Q. B. 
 (6) Ibid. 795. 
 (c) Ibid. 796. 
 
 789. 
 
Conforming to Orders 215 
 
 him " does come within the true meaning and intent of the Chap. VI. 
 
 third sub-section, and that is one of the very cases which it 
 
 was intended to meet." Lindley, L. J., points out fa) that J"''s°'«''t "f 
 
 , . /. , Lindley, L.J. 
 
 under the section "five things must be proved. First, 
 injury to the plaintiif ; secondly, negligence of some person 
 in the service of the defendant ; thirdly, that the person 
 was one to whose orders the plaintiff was bound to conform ; 
 fourthly, that the plaintiff did conform to those orders ; 
 fifthly, that the injury resulted in his conforming thereto " ; 
 and he suggests the test "that the injury must be the 
 result of negligence of the person giving those orders and 
 of the plaintiff conforming to those orders. It will not do 
 to prove one of these things only ; the injury must be the 
 result of the two, and if the two are so connected together 
 as to cause the injury, then it appears to me that the case 
 comes within this section." 
 
 It is observable that nowhere is it said that where con- considered. 
 formity is merely the sine qua non of the accident, that 
 liability attaches. For instance, a workman says to work- 
 men who are bound to conform to his orders, " You stand 
 here, you here, you here,'' and in course of the work the one 
 next to him is injured through his negligence in doing his 
 part of the work ; it is not said in Wild v. Waygood that 
 the master would be liable. The utmost extent the case 
 goes is to include, in the words of Lindley, L. J., (6) those 
 cases where " it is impossible to say that the injury was not 
 caused by those two things, viz. negligence of the person 
 giving the order, and conformity with the order," where, 
 that is, probably, the conformity to the order is an element 
 in the injury and not the mere antecedent of it — a co- 
 operating cause in the actual result and not a mere step 
 toward the result. The master is liable for a complex result, 
 
 (o) L.C. 793. 
 (6) L.C. 794. 
 
216 Employers Liability Act, 1880 
 
 Chap. VI. but not for a simple result posterior to conformity to 
 orders. 
 
 This seems the conclusion from what Lord Herschell 
 says in Wild v. Waygood, {a) dissenting from the remarks 
 
 BeZ«t '■ of Lord Coleridge, C. J., in Howard v. Bennett. (6) In that 
 case two men were working a machine ; one had to start it, 
 the other to co-operate in working it. An order was given 
 and conformed to, immediately on which, and negligently, 
 the machine was started and the person conforming was 
 injured. Lord Coleridge, C.J., held that: "The injury 
 resulted, not from the directions given, but from the 
 machine being set off too soon and at too great a speed." 
 
 view. ^^ ° ^ Lord Herschell, commenting on this, says : (c) " I cannot 
 agree that in that case the injury which is caused by the 
 negligent starting of the machine in such circumstances is 
 not an injury which results from conforming to the order 
 given. The order given was to put his hand in a certain 
 part of the machine, which is a part where his hand will be 
 in immediate danger if the machine is started ; and his 
 hand being there, the negligence consists in starting the 
 machine whilst his hand is there. Under such circumstances 
 as those, there seems to me the most immediate and 
 intimate connection that one can conceive between the 
 negligence which caused the injury and the conforming to 
 the order, because it is in truth one element of the negli- 
 gence that he was conforming to the order at the time." If, 
 then, the conforming to the order is an ingredient in the 
 wrongful act, as distinguished from a mere antecedent of 
 it, the liability of the master does not end with the causa 
 causans, but is referred back so as even to include the causa 
 
 (a) L.C. 791. 
 
 (6) 60 L. T. 153; 58 L. J. (Q. B.) 120. 
 
 (c) [1892] 1 Q. B. 792. 
 
Conforming to Orders 217 
 
 sine qua non. Thus, while it is tolerably plain that the Chap. VI. 
 
 master would not be liable where a proper order is given,' 
 
 by one in superintendence, to which the workman conforms 
 and, in the subsequent course of working, is injured by an 
 independent negligent act ; and, on the other hand, it is 
 equally plain that he would be liable where a proper order 
 is given which concurs with a negligent act so that the 
 joint effect produces injury ; there is a third class of cases 
 where the relation between the proper order and the negli- 
 gent surroundings is too indeterminate to be more definitely 
 formulated than it is by Kay, L.J.'s use of the phrase 
 " intimate connection " between the order and the negli- 
 gence producing the injury. Of this last class of cases 
 Wild V. Waygood is a type, where the result is dependent 
 more on the effect produced on the Court by the particular 
 facts proved, as they may appear to approximate either to 
 the first or second class above designated, than by reference 
 to any general rule whatever. 
 
 Both in Scotland (a) and in England (b) it has been held workmen in the 
 
 ^ ^ ^ employ of 
 
 that where workmen are in the- employ of " butty-men," "butty.nen.- 
 who enter into a contract with the owners of the mine to 
 get coal, and are injured by others engaged in the same 
 system of work, they are within the provisions of the Act. 
 When, however, two workmen are working together, for 
 example, in cleaning and working a machine, and the one 
 too hastily starts the machine, so that the other is injured, 
 this is no more than the negligence of a fellow-workman, 
 to which the Act does not apply ; (c) of course this is on 
 the assumption that one is not subordinate to the other. 
 
 (o) Morrison v. Baird, 10 E. 280. 
 
 (5) Brown v. Butterley Coal Co., 2 T. L. E. 159. Cp. Marrow v. Flimby 
 & Broughton, &o., Co., [1898] 2 Q. B. 588. 
 
 (c) Howard v. Bennett, 58 L. J. (Q. B.) 129, considered and explained, 
 WUd V. Waygood, [1892] 1 Q. B. 791. 
 
218 
 
 Employers Liability Art, 1880 
 
 Chap. VI. 
 
 Kettlewell ». 
 FatergOD. 
 
 Xe^cligent 
 order. 
 
 The case of Kettlewell v. Paterson (a) comes under this 
 sub-section. A working glazier, who had been supplied 
 by his employer with suitable scaffolding for doing the 
 glazier work at a building, was directed by the foreman 
 to make use of another scaffold, which had been erected 
 by persons who had the contract at the same building for 
 joinery work. This scaffold gave way in consequence of 
 the joiner having carelessly constructed it of defective 
 materials, and the glazier was injured. The scaffold was 
 the work of a competent workman ; and it was not shown 
 that the defect could have been observed by such examina- 
 tion as the foreman glazier was bound to make. The Court 
 held that there was no negligence ; since the foreman of the 
 glazier was justified in making use of a scaffold erected by 
 a competent tradesman. This same ground would have 
 protected the employer had the negligence alleged been 
 a defect in the condition of ways, works, etc., under the 
 first section. 
 
 An order to " go on " with the work in a manner which 
 had not been usual — that is, with one workman instead of 
 two, as has been the accustomed manner — is a negligent 
 order. (6) 
 
 In Marley v. Osborn(c) plaintiff was injured through 
 cleaning a machine while in motion, by the order of one 
 to whose order he was bound to conform. A written notice 
 was posted up in the workshop that machines were not to 
 be cleaned while in motion ; and this the plaintiff admitted 
 he had seen. Nevertheless, the defendant was held liable, 
 because "the ordinary course taken in these works was 
 followed." The employer has been held not liable where 
 
 (a) 24 So. L. E. 95. 
 
 (6) Barber v. Burt, 10 T. L. R. 383. 
 
 (c) 10 T. L. R. 388. 
 
Conforming to Orders 219 
 
 one workman taking advantage of greater length of service Chap. VI. 
 
 or skill directs his fellow-workman to do work in a way that 
 
 is unsafe and injury results, (a) 
 
 To recapitulate : — to bring a case within the sub-section Negligent order 
 
 ° not essential. 
 
 we are now considering the injury must result from con- 
 formity to an order, but it is not necessary that the injury 
 should be caused by a negligent order. The order may 
 be a proper one, and the negligence may be subsequent 
 to the order, so long as it becomes injurious through 
 conforming to the order, (b) 
 
 The difficulty arises in the particular case in ■deter- 
 mining when an injury can be said to result from con- 
 forming to an order. The diiferent aspects of the question 
 are marked by the cases of Snowden v. Baynes (e) and Wild 
 V, Waygood. (c?) 
 
 In the former case, Sellick, a carpenter in the employ- snowden «. 
 ment of the defendant, used to receive directions from his 
 employer as to the work to be done, and give orders to the 
 plaintiff and to other men as to what work each of them 
 should do; and those orders they were bound to obey. 
 Sellick's duty and authority with respect to the plaintiff 
 ended there. On the morning of the accident Sellick told 
 the plaintiff what work he was to do, and according to the 
 ordinary course of his work he went to a particular machine 
 in a particular shed. The shed was stated in evidence not 
 to be a safe place for two people to work in at once. The 
 regular time for the plaintiff to leave off work was half-past 
 five. On the evening of the accident he elected to work 
 overtime till seven. After the ordinary hours Sellick and 
 
 (a) Garland v. City of Toronto, 23 Ont. A. E. 238. 
 (6) Millward v. Midland By. Co., 14 Q. B. D. 63; Wild v. Waygood, 
 [1892] 2 Q. B. D. 783 at 790. 
 
 (c) 24 Q. B. D. 568 ; 25 Q. B. T>. 193. 
 
 (d) [1892] 1 Q. B. 783. 
 
220 Emploijers Liahility Act, 1880 
 
 Chap. VI. another man came into the shed, and began to stack timber 
 there. Through negligence a piece of timber fell, and the 
 plaintiff was injured. He claimed against the employer 
 in respect of his injury on the ground that he was bound 
 to conform to Sellick's order, and was at the time of the 
 injury conforming to Sellick's order, i.e. to the general 
 order given in the morning. The jury in the County Court 
 found in his favour on these issues. The "Divisional Court 
 set the verdict aside, and entered judgment for the defen- 
 dant, holding that the injury did not result from his having 
 conformed to any order given. 
 
 Wills, J. '8, " It seems to us," said Wills, J., (a) delivering the 
 
 judgment. ' ' \ / o ^ 
 
 judgment of the Court, (b) " that there is no connection 
 between his [the plaintiff's] doing that piece of work rather 
 than any other and the accident. Sellick had no authority 
 to send him to any other place to work, or to exercise any 
 discretion, or give any orders as to where he should go 
 to do the work. . . . We think the order which is con- 
 templated by this sub-section must be one which is really 
 that of the person in the position of Sellick, and which is 
 the direct offspring of some choice or exercise of judgment 
 and will on his part; if not, it is not his order at all. 
 Sellick had authority to say, ' You shall do this bit of 
 work or that bit of work,' but not ' You shall do it at this 
 place or that place.' The choice of place rested with some 
 one else." ..." We think it right, however, to point out 
 that, besides the broad distinction we have already dealt 
 with, there is one obvious difference (whether affecting 
 the right of action or not) between a case in which the 
 circumstances of danger are brought about by the per- 
 formance on the part of the person injured, of acts the 
 
 (a) 24 Q. B. D. at 571. 
 
 (6) Pollock, B., and Wills, J. 
 
Conforming to Orders 221 
 
 direct result of obedience to an order then and there given, Chap. VI. 
 
 and which then expose him to immediate risk, if the person 
 
 giving the order be careless, and a case in which obedience 
 to the order is accompanied by no circumstance of present 
 risk from the negligence of the person giving the order, 
 and in which, if the mere fact that obedience to the order 
 involves the presence of a workman in a spot where he is 
 afterwards endangered by acts of the person giving the 
 order is sufficient to give a right of action, the liability 
 may flow from an order given a week or a month before 
 the accident happened. In such a case it is obvious that 
 such an order might amount to very little more than the 
 mere selection of a particular workman to be employed 
 upon a particular job, and it is difficult to suppose that 
 such a case could be within the Act." 
 
 The Court of Appeal affirmed the decision, (a) on the Affirmed in the 
 
 Court of Appeal. 
 
 ground that there was not evidence to show that Sellick 
 had a,uthority to tell the plaintiff where or at what time 
 he was to work. 
 
 Wild V. Waygood (b) was the case alluded to in the wjid ». way- 
 
 ^ good. 
 
 Divisional Court, in Snowden v. Baynes, (c) where " the 
 circumstances of danger are brought about by the per- 
 formance on the part of the person injured of acts the 
 direct result of obedience to an order then and there given, 
 and which then expose him to immediate risk, if the person 
 giving the order be careless." Plaintiff was working at 
 the construction of a lift. A man working with him, and 
 to whose orders he was bound to conform, directed him in 
 the course of the work to put a plank across the well of the 
 lift and to stand on it. While the plaintiff was on 
 
 (a) 25 Q. B. D. 193. 
 (6) [1892] 1 Q. B. 783. 
 (c) 24 Q. B. D. at 572. 
 
222 Employers Liability Act, 1880 
 
 Chap. VI. the plank the other man negligently started the lift and 
 caused injury to the plaintiff. The County Court jury 
 found in his favour. For present purposes the only point 
 necessary to notice is the contention that the injury did 
 not result from the plaintiff having conformed to the order 
 that he should place the plank and stand on it. 
 
 intheCoirt The Court of Appeal decided against the defendant, 
 
 and held that the injury did result not alone from the 
 negligence of the person who gave the order, but from 
 the plaintiff having conformed to the order. " It is quite 
 
 Lord Hcrscheii's clcar," Said Lord Herschell, (a) " the iniury did result from 
 
 udgment. . . . ^ ' "' ■' 
 
 the plaintiff having conformed to an order when he was 
 told to go to a place which was, and must have been known 
 to be, a dangerous place, if the person who told him to 
 go there was guilty of negligence. That person having 
 been guilty of negligence created the danger and caused 
 the injury, it seems to me the case is within the very 
 terms of the Act." 
 
 The distinction is clearly illustrated in Judge Eoberts's 
 book (h) : Suppose A temporarily placed in charge of a 
 hand crane with B under his orders. While A is working 
 it he calls B to take the handle. Before B can get firm 
 hold of it A lets it go. B's arm is broken in consequence. 
 In this case B's injury is caused by A's negligence and 
 through B's conformity to A's order. The common em- 
 ployer is liable. But, if B has taken the handle, and A, 
 telling him to go on working, leaves the place and returns 
 later driving a horse and cart and runs over B, the common 
 employer is not liable ; though B is where he is through 
 conformity to A's order, (c) Some such principle as is 
 
 (a) [1892] 1 Q. B. at 789. 
 
 (ft) Duty and Liability of Employers (4th ed.), 304 summarized. 
 
 (c) Cp. Whatley v. HoUoway. Post, 231. 
 
Conforming to Orders 223 
 
 illustrated by Sharp v. Powell (a) is at the root of the Chap. VI. 
 distinction : there must be a cessation of the direct effects 
 of the first cause and the operation of another series to 
 exculpate the first. 
 
 The word " resulted," (6) which is the word used in Resulted. 
 the sub-section, is a wider word than the word " caused," (c) 
 which is used in the earlier part of the section. Where 
 the order is a proper order, but through some antecedent 
 negligence which could not be detected by the use of 
 ordinary and reasonable care, an accident happens, the 
 case is not within the sub-section. Thus, a working glazier 
 had been supplied by his employer with suitable scaffolding 
 for doing glazier's work to a building. In the course of 
 the work he was directed by his foreman to make use of 
 another scaffold which had been erected by persons who 
 had the contract of the same building for joinery work. 
 This scaffold gave way, and the glazier was injured. The 
 scaffold was the work of a competent workman ; and it was 
 not shown that the defect could have been observed by such 
 examination as the foreman glazier was bound to make. 
 The Court held that there was no negligence, since the 
 foreman of the glazier was warranted in making use of a 
 scaffold erected by a competent tradesman, {d) 
 
 In Wilson v. Caledonian Kailway Co., (e) an action was wiison «. caie 
 
 donlan Ry. Co. 
 
 held not to lie where the workman asked for a crane to 
 assist in his work but was refused, and then in lifting a 
 package was inj ured. The Lord Justice Clerk said : " So 
 far as I can see the pursuer's case comes to this, that 
 it is the duty of the superintendent ... to see that 
 
 (a) L. R. 7 C. P. 258. Ante, 66. (ft) Ante, 124. (c) AnU, 123. 
 
 (d) Moore v. GrimsoQ, 58 L. J. Q. B. 169. Tlie fact that work is 
 dangerous, and that an accident happens while it is being done, does not 
 raise a presumption that there is negligence either in undertaking the 
 work or in allotting it t 
 3 T. L. B. 618. 
 
 (e) 87 So. L. E. 234. 
 
224 
 
 Employers Liability Act, 1880 
 
 Chap. VI. everything which comes out of a waggon is not too heavy 
 " for a man to remove from that waggon without assistance. 
 
 I cannot assent to that ; I cannot say that it is negligence 
 not to supervise to that extent. I think that in such 
 work as moving sacks or large packages in a waggon, 
 workmen must judge for themselves when they come to 
 try it, whether the sacks or packages are such that they 
 cannot move them without excessive exertion, and if they 
 cannot then they must apply for assistance." (a) 
 
 IV. Workman 
 Injured by act 
 or omission of 
 person acting 
 under bye-laws, 
 etc. 
 
 IV. Obedience to Eules oe Bye-laws {h) causing Injury. 
 
 Fourthly, the workman is to be in the same position as 
 a licensee (c) where he is injured " 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 bye-laws of the 
 employer, or in obedience to particular instructions given 
 by any person delegated with the authority of the employer 
 in tha,t behalf," "unless the injury resulted from some 
 impropriety or defect in the rules, bye-laws, or instructions 
 therein mentioned." "Where a rule or bye-law has been 
 approved or has been accepted as a proper rule or bye-law 
 by one of her Majesty's Principal Secretaries of State or 
 by the Board of Trade or any other department of the 
 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 bye-law." {d) 
 
 The leading industries of the country are now largely 
 conducted under codes of rules ; some of these are general 
 and statutory, others special to the particular employment. 
 
 (a) Ante, 20. 
 
 (6) So spelled uniformly as in the Act. The true spelling is by-law — 
 or town law : henoe a matter of internal regulation as distinguished from 
 a constitutional provision, 
 
 (e) Ante, 136. Post, 292. 
 
 (d) S. 2, sub-s. 2. Ante, 125. This provision is in the Colonial 
 statutes, but not in that of Massachusetts. 
 
Bules or Bye-laws 225 
 
 So far as these rules are general and statutory they are Chap. VI. 
 
 part of the law of the land; and a workman injured in 
 
 consequence of the natural operation of one of these would 
 
 have no claim against his employer, on the ground that it 
 
 was the law that was defective and injured him, and not 
 
 the employer's arrangements nor anything that is under 
 
 his control. 
 
 So far as the rules are special to particular employ- 
 ments, they must have the sanction prescribed by Parlia- 
 ment before they secure the same immunity. 
 
 Typical instances of both classes of rules are given by Rules. 
 the Metalliferous Mines Eegulation Act, 1872, (a) and by 
 the Coal Mines Eegulation Act, 1887. (h) 
 
 By sec. 23 of the former of these Acts, general rules are under the 
 
 •1111 1 o 1 Metalliferous 
 
 prescribed to be observed " so far as may be reasonably Mines Regnu- 
 practicable " in every mine to which the Act applies. 
 
 If there is any question whether any workings are a 
 mine within the Act, the question is decided finally by the 
 Secretary of State, (c) Any breach of any of the general 
 rules contained in the section thereupon becomes a 
 punishable offence. 
 
 In addition to these rules, provision is further made (d) 
 for the owner or agent of any mine to which the general 
 rules are applicable, if he think fit, to make special rules 
 for safeguarding the working of the mine. The suggested 
 rules have to be sent to the inspector of the district, to 
 obtain the 'approval of a Secretary of State. If the 
 Secretary of State does not object within forty days after 
 they have been forwarded to the inspector, the rules become 
 
 (a) 35 & 36 Vict. c. 77. 
 (6) 50 & 51 Viot. 0. 58. 
 (c) S.39. 
 (i) S. 24. 
 B.E.t. Q 
 
226 
 
 Employers Liability Act, 1880 
 
 Chap. VI. operative, and the absence of objection by the Secretary of 
 State is equivalent to an approval of them by him. 
 
 Under tbe Coul 
 Mines Begula* 
 tion Act, 1887. 
 
 tfnder the 
 Factory and 
 Workshop Act, 
 1901. 
 
 tJnder the 
 Public Health 
 Act, 18t6. 
 
 Under the 
 Public Health 
 (London) Act, 
 1891. 
 
 Under the Coal Mines Begulation Act, 1887, (a) a 
 similar but more elaborate code is devised (6) applicable 
 to all coal mines. By sec. 51 the framing of special rules 
 for each particular mine is made obligatory within three 
 months of the commencement of the Act, or within three 
 months of opening any new working. These special rules 
 are those provided for by the sub-section of the Employers 
 Liability Act, 1880, now under consideration. 
 
 fiy the Factory and Workshop Act, 1901, (c) where the 
 Secretary of State is satisfied that any manufacture, plant, 
 process or description of manual labour is dangerous or 
 injurious to health or life or limb, he may certify the same 
 and make such regulations as appear to him to be 
 reasonably practicable and to meet the necessity of the 
 case. 
 
 By the Public Health Act, 1875, {d) sec. 113, an urban 
 authority may make bye-laws with respect to any offensive 
 trade established since 1848 ; and by sec. 184 these are 
 not operative till confirmed by the Local Government 
 Board, (e) 
 
 The sections relating to bye-laws in the Public Health 
 Act, 1875, are incorporated in the Public Health (London) 
 Act, 1891, (/) by the First Schedule. 
 
 (a) 60 & 51 Viot. c. 58. 
 (6) S. 49. 
 
 (c) lEdw, VII. c. 22, s. 79. 
 
 (d) 38 & 39 Viot. c. 55. 
 
 (e) As to bye-laws under these provisions, see the circular letter on 
 model bye-laws addressed to Local Sanitary Authorities by the Local 
 Government Board, dated 25th July, 1877. 
 
 (/) 54 & 55 Viot. c. 76. 
 
R%les or Bye-laws 227 
 
 So too under the Explosives Act, 1875, bye-laws both Chap. VI. 
 general and special may be made and approved by a underihT 
 Secretary of State or the Board of Trade, (a) fsTs!"""' '^"' 
 
 The above enumerated instances are not intended to be 
 exhaustive of a system of control which is continually 
 extending its operations. 
 
 Whether any particular bye-laws are merely private or Tests of 
 authenticated by the Government may most usually be 
 ascertained on the face of them ; since the Acts under which 
 those having governmental sanction are issued most usually 
 provide that they shall be printed with the authorization of 
 the Secretary of State, or of the Government department 
 empowered to approve them attached thereto. 
 
 In the event however of any difficulty arising it could 
 be cleared up by an application to the proper Government 
 department, or by the consideration that the onus of proof 
 of the application of the sub-section is upon the employer. 
 
 By the common law (J) if a business is carried on in 
 obedience to rules or bye-laws, such rules and bye-laws are 
 part of the conditions of employment, and accidents thence 
 arising are risks which both the contracting parties are 
 held to contemplate as incidental to the employment, (c) 
 This principle is subject to two limitations : 
 
 (1) Where the employer is cognisant of a latent defect two limitauon?, 
 of which the workman has not knowledge or not equal ^J^™"^™' 
 means of knowledge, the employer is liable for injury "' ■"""'ing. 
 received through the risk ; (d) and, 
 
 (a) 38 VIot. 0. 17, ss. 33-38. 
 
 (b) As to the efiaot of defective rulea at common law, Vose v. Lane. & 
 Y. Ey. Co., 2 H. & N. 728. 
 
 (c) Clarke v. Holmes, 7 H. & N,, per Cookburn, O.J., 944. Weems v. 
 Mathieson, i Macq. (H. L. So.) 215. 
 
 (d) Bartonsliill Coal Co. u. Eeid, 8 Maoci, (H. L. So.) 266. 
 
228 Employers Liability Act, 1880 
 
 Chap. VI. (2) The employer is bound to see that the dangers 
 (2) wtol attendant on the system of working are not necessarily 
 neSri^' increased by the absence of due care and reasonable means 
 of prevention, (a) 
 
 increased. 
 
 The section works a change in the law by providing that 
 where anything is done under a rule or bye-law regulating 
 an establishment, the natural result of which is to work 
 injury to a workman the employer is liable. The same 
 principle applies where, under a rule or bye-law, some act is 
 omitted which would otherwise have been done, and injury 
 is caused. In other words, if the working of a rule or bye- 
 law results in injury, inefficiency of the rule or bye-law is to 
 be presumed; and this is so, though at common law the 
 working might be said to be under the conditions imposed 
 by the rule or bye-law. The meaning is pointed more 
 clearly by the proviso that where the rule or bye law is 
 approved or sanctioned by the Government authorities 
 therein specified, the employer shall not be liable, even 
 though in its working the rule or bye-law shall have 
 brought injury to a workman. 
 
 Effect of this The inquiry is next suggested. What is the effect of this 
 
 provision on the iiy» -ii-ji -t^-t. 
 
 application of upon the deiencc involved in the maxim Volenti non fit 
 
 the maxim 
 
 Volenti rum fit injuria ? The decisions (h) sav that this defence remains to 
 the employer. The Act says that the workman is to be in 
 the position of a licensee where the injury occurs through 
 the injurious operation of bye-laws, etc., which form part 
 of the system under which the workman is employed, unless 
 in certain excepted cases. 
 
 Effect would be given to the words of the Act, and to 
 the law as laid down by the decisions, by considering that 
 
 (a) Williams v. Clough, 3 H. & N. 258. 
 
 (6) e.g. Thomas v. Quartermaine, 18 Q. B. D. 685. 
 
JRules or Bye-laws 229 
 
 before the Act the fact of working on a system governed by Chap. VI. ; 
 rules might imply a voluntary undertaking of the risks 
 involved in them; while by the provisions of the sub- 
 section a change is made in the onus : on proof that injury 
 has resulted from bye-laws a presumption is raised that the 
 employer is liable for their ill operation. This may be 
 rebutted by showing that their working was known and 
 might have been anticipated by both parties. 
 
 Again, the rules may have been imposed subsequently 
 to the workman entering the employment. Then, at 
 common law, the rights of the workman are greater than 
 when he enters upon an employment under conditions 
 prescribed and manifest, (a) It may well be that the effect 
 of this sub-section is to place a workman (in the particulars 
 enumerated) in the same position under the statute as he 
 would have been in at common law, where he went on 
 working after discovering a risk, without a full and con- 
 scious acceptance of its danger. 
 
 It is pretty obvious that the act or omission must be 
 under the rules or bye-laws, and that an act or an omission 
 not contemplated by the bye-laws cannot be brought under 
 the section. 
 
 " Particular instructions " probably indicate orders given Particular 
 
 • instructions. 
 
 through a person without authority acting as the mouth- 
 piece of a person with authority. 
 
 A distinction has been taken between definite instruc- 
 tions given by the employer to a person, and instructions 
 afterwards to be particularly formulated and delivered by 
 the delegate. It seems useless to canvass the origin of the 
 instructions, since the Act merely requires that they should 
 
 (o) Clarke v. Holmes, 7 H. & N. 937 ; Holmes v. Worthington, 2 F. & 
 F. 533. 
 
230 Employers Liability Act, 1880 
 
 Chap. VI. be particular instructions when promulgated to the work- 
 man, as distinguished and apart from rules and bye-laws 
 which are in the nature of general instructions; so that, 
 however they emanate, they would seem to affect the 
 employer with liability if they are issued by his authority, 
 are improper or defective, and injury has resulted there- 
 from, (a) 
 
 In explanation of these words, — "in obedience to particular 
 instructions," — it may be noted that hitherto we have been 
 concerned with (1) the employer ; (2) the servants invested 
 with a general authority of superintendence ; (8) servants 
 to whose orders the workman is at the time of the accident 
 bound to conform. It is suggested that this sub-section 
 has to do with cases where (1) there has been no negligence 
 on the part of the workman causing the injury ; and (2) the 
 injured man is not under orders. This is clear as to the 
 earlier part of the sub-section. With regard to the words now 
 being considered, it is necessary to fix further the meaning to 
 be attached to the phrase " particular instructions." So far 
 as these words embrace definite individual orders given by 
 a superintendent while in the exercise of superintendence, 
 or by a person in the service of the employer to whose 
 directions the workman is bound to conform, they are un- 
 necessary as being covered by sub-sees. 2 and 3. They 
 therefore probably cover th^ cases where a messenger has 
 been selected to transmit special directions ; and also the 
 cases where some person of probably inferior position, or 
 standing outside the work, has been authorized to give 
 instruction in some phase or branch of it with power of 
 prescribing the detailed arrangements. The former of these 
 cases would be covered by the common law. The messenger 
 
 (a) Whatley v. Holloway, 6 T. L. K. 353 (C. A.), where an instruction 
 to do a certain thing was held not to imply the instruction to do it un- 
 reasonably or without the ordinary precautions requisite to do it safely. 
 
Particular Instructions 231 
 
 would be merely a conduit, and the impropriety of the in- chap. VI. 
 
 structions (a) would be personal negligence of the em- 
 
 ployer. (b) In the latter case at common law, the particular 
 instruction would be that of a fellow-servant and not 
 actionable, (c) The effect of this portion of the sub-section 
 appears to be to create a liability for a casual directory 
 intervention (as far as it is authorized by the master) in 
 work, where there is neither superintendence nor control ; 
 but where the " impropriety of the instructions " given, 
 even when carried out without negligence, has caused injury 
 to a workman. 
 
 The point of what is obedience to a particular instruc- whatiey «, 
 
 HoUoway. 
 
 tion was discussed in Whatiey v. Holloway. (d) A man 
 named Ancliffe was engaged by the defendant to attend to 
 an engine and boiler. His duty was also to assist the 
 plaintiff in working a circular saw ; in doing which he was 
 told not to neglect the engine. At the time of the accident, 
 Ancliffe and the plaintiff were at work with the saw — the 
 plaintiff feeding it with wood, Ancliffe, at the other end, 
 receiving the wood as it came from the saw, and holding it 
 so as to steady it. A noise being heard from the engine indi- 
 cating that it required attention, Ancliffe let the piece of wood 
 he was holding go without warning. The result was that the 
 piece of wood the plaintiff was holding was rendered unsteady, 
 and plaintiff's hand was jolted against the saw and injured. 
 The jury found a verdict for the plaintiff with £40 damages. 
 The question was whether there was any evidence warrant- 
 ing the jury finding under the sub-section that there was 
 an act or omission done or made in obedience to particular 
 
 (a) S. 2, sub-s. 2. Ante, 125. 
 (6) Ante, 21, 25. 
 ' (c) Ante, 4X. 
 
 (d) 6 T. L. E. 190 ; in C. A. 358. 
 
232 Employers Liability Act, 1880 
 
 Chap.VI. instructions. The plaintiff's contention was that the in- 
 junction to Ancliffe not to neglect the engine was a par- 
 ticular instruction, obedience to which had caused the 
 accident. The defendant's contention was that no par- 
 ticular instruction within the sub-section had been given ; 
 or if the instruction was to be held a particular instruction, 
 that Ancliffe's act was merely the negligent act of a fellow- 
 servant and not done in obedience to it. 
 
 j^d^'ment'fn the '^^^ inclination of Fry, L. J.'s opinion, was in favour of 
 CoBrt!™*' the defendant's contention on the first point, which, however, 
 he assumed in favour of the plaintiff. He thus continues : 
 "The rule laid down for Ancliffe was not to neglect the engine. 
 Did that mean that he was to attend to the engine with due 
 regard to the safety of the lives of others, or was it a wicked 
 rule that he was to look after the engine at all hazards, with- 
 out regard to the safety of others ? He had no hesitation in 
 saying that the instruction was a reasonable one, that the 
 engine was to be Ancliffe's first care, at the same time 
 leaving his other work in a proper and reasonable manner. 
 The question may be tested in another way. Supposing 
 Ancliffe had waited for a few seconds, and before leaving 
 told the plaintiff to take his hands off the wood. In his 
 opinion that would not be disobedience to the rule. There- 
 fore there was no rule requiring Ancliffe to do as he did . . . 
 The injury, therefore, was caused here, not by Ancliffe's 
 obedience, but by bis disobedience to his instructions." 
 Judgment was accordingly entered for the defendant. This 
 Lindiey, L.j.'s, was affirmed in the Court of Appeal, where Lindlev, L.J. 
 
 judgment in the • i / s -»t i i i i . ra. 
 
 Court of Appeal. Said, («) " JSo doubt Ancliffe was required to attend to the 
 engine, but the instructions did not require him, when it 
 was necessary to attend to the engine, to leave the saw 
 without giving his mate notice. It was impossible to 
 
 (a) L. c. at 364. 
 
Particular Instructions 233 
 
 construe Ancliffe's instructions as involving this, that he Chap. VI. 
 must go away without giving notice to the plaintiff." 
 
 In Glaxton v. Mowlem & Co., (a) the plaintiff was in the ciaxton d. 
 
 ^ \ / J. Mowlem. 
 
 employment of the defendants, who were contractors. His 
 work was unloading ballast. The ballast was raised in 
 buckets attached to the chain of a steam crane. As one 
 bucket was raised another bucket was lowered into the 
 barge from which the loading was going on, and in which 
 the plaintiff was working with other men. A banksman 
 gave the signal to the driver of the crane to raise or lower 
 the buckets. On the occasion of the accident the men 
 in the barge had attached the bucket to the chain and 
 called out, " Lower away ; steady ! " The banksman 
 called to the driver of the crane, " Lower away ! " meaning 
 to lower away quickly. The driver lowered quickly, and 
 the bucket fell on the plaintiff and injured him. The 
 question in the Court of Appeal was whether there was 
 any evidence that the direction of the banksman to " lower 
 away" was a particular instruction given by a person 
 delegated with the authority of the employer. The Court 
 held it not to be so. Lord Esher, M.E., said : " The 
 banksman , . , gave no instructions to any one ; he merely 
 gave notice. But assuming that he did give orders, a 
 person who was told to do a particular thing was not 
 ' delegated with the authority of the employer.' Those 
 words referred to a manager, or a person in the position of 
 a manager, who was put into the position of his employer 
 to do or to abstain from doing what the employer would 
 do or abstain from doing. If there was any negligence 
 here, it was in the banksman, and he was nothing more 
 than a fellow-servant." 
 
 (a) 4 T. L. B. 756. 
 
234 Employers Liability Act, 1880 
 
 Chap. VI. V. Charge oe Control of any Signal, Points, etc., on 
 
 a Eailway. 
 
 V. Workman Fifthly, the workman is to be iu the same position as a 
 
 may recover •' *■ 
 
 the"egiigenM'''^ Hcenseo (a) where he is injured " by reason of the negligence 
 ttesfrSof the o{ any person in the service of the employer who has the 
 hasthe charge or charge or control of any signal, points, locomotive engine, 
 
 control of any 
 
 signal, points, or tram upon a railway, (b) 
 
 etc., on a railway. ^ j \ / 
 
 " I cannot help thinking," says Lord Halsbury, C, (e) 
 " that the Legislature meant in a very wide way to protect 
 workmen who are engaged in such dangerous employments, 
 and they said, as an exception to the ordinary rule of law, 
 that if the person in charge of a locomotive or of a train 
 shall be guilty of negligence, then, quite apart from any 
 question of superiority of employment, and quite apart 
 from the necessity of superintendence, the employer may 
 be liable." 
 
 The definition clause of the Act,(d) which we shall 
 consider more minutely presently, provides that the ex- 
 pression "workman" means, amongst other things, "a 
 railway servant." The present sub-section appears to have 
 been introduced for their benefit. 
 
 The decisions upon this section have placed the natural, 
 
 as distinguished from a technical, meaning on the terms 
 
 Doughty V. used. Thus, in Doughty v. Firbank (e) it is held that rail- 
 
 Firbanlj. i,. 
 
 ways used by colliery owners and others upon which trains 
 run are within the section, and that it is not to be limited 
 
 (a) Post, 292. 
 
 (6) S. 1, sub-3. 5, Aiiie, 125. All the Employers Liability Acts, Colonial 
 and American, contain provisions for the protection of railway servants, 
 but there is considerable diversity in their language. 
 
 (c) McCord V. Cammell & Co., [1896] A. C. 63. 
 
 {d) S. 8, Ante, 129. 
 
 (e) 10 Q. B. D. S58. In Massachusetts, a short railway track intended 
 for temporary use by a city in transporting gravel has been held a railway : 
 Coughlan v. Cambridge, 166 Mass. 268, 
 
Signal, Points, etc., on a Railway 235 
 
 in its applications to railways used by railway companies. Chap. VI. 
 
 It applies where there is " a way upon which trains pass by 
 
 means of rails." In Cox v. G-. W. Ey. Co., (a) trucks cox «. o. w. 
 
 . Ey.Co. 
 
 coupled together in the usual way, though with no loco- 
 motive engine attached, and only a stationary hydraulic 
 engine and a capstan by which they were moved, were held 
 to be a train. In Murphy v. Wilson (6) an attempt to 
 comprehend under the term " locomotive engine " a steam 
 crane so fixed on a trolley that, by means of shifting gear 
 working on the axles of the trolley, the crane and trolley 
 could be moved from one place to another along rails, was 
 unsuccessful. Pollock, B., thus expressed his view: "The view of 
 
 . 1 , . Pollock, B. 
 
 term * locomotive engine ' has a well-known significance, 
 and is used generally for an engine to draw a train of 
 trucks or cars along a permanent or temporary set of rails. 
 There is also a well-known class of engines, such as traction 
 engines, which, though they are capable of being moved 
 from place to place, are never spoken of as locomotive 
 engines, (c) . . . If the Legislature had intended to in- 
 clude any such machine, they would have used proper 
 terms. I can see no reason why the defendants in this 
 case should be held liable under this section any more 
 than if it were a case of a steam printing machine or a 
 punching machine." 
 
 In McCord v. Cammell, {d) Lord Halsbury, C, doubted "A train." 
 very much whether the Legislature intended the words 
 " a train," as used in the sub-section now being considered, 
 to be used narrowly. " The Legislature meant that a loco- 
 motive engine by itself, or anything that was drawn along 
 
 (a) Q. B. D. 106. 
 
 (6) 52 L. J. Q. B. 524. 
 
 (c) But see Powell v. Fall, 5 Q. B. D. 597. 
 
 [d] [1896] A. 0. at 64. 
 
236 Employers LiaUlUy Act, 1880 
 
 Chap. VI. a railway, or was in course of being drawn along a railway 
 by that locomotive engine, should be included in a train." 
 "I idoubt very much whether it would depend upon the 
 number of carriages or the number of vehicles going upon 
 wheels which the locomotive was taking along the railway. 
 I should think the Legislature intended a very wide scope 
 to be given to the use of these words." (a) And Lord 
 Watson said : (b) " The words ' any person having charge or 
 control of the train' do not, in my opinion, necessarily 
 point to one person who is in charge of the whole train. 
 Different duties in connection with different parts of the 
 train may be assigned to different persons, and, in that case, 
 each and all of those persons are charged with the conduct 
 of the train ; and, if any one of them be negligent in his 
 own department, that will constitute ' negligence,' bringing 
 the case within the terms of sec. 1, sub-sec. 5." The con- 
 sideration which had weight with one of the judges in the 
 Court of Appeal, that the duty having been committed to a 
 great many people, any one of whom might have performed 
 it, therefore the person actually performing it was not " in 
 charge," was in the House of Lords regarded as " very 
 immaterial." The statute points directly to the person 
 having " the charge or control of the train " as being that 
 person who at the time when the negligent act is committed 
 has the duty cast upon him of performing that act with 
 reasonable care. 
 
 Scope of the By the interpretation clause "workman" means a 
 
 sub-section. i i n i 
 
 railway servant amongst others ; therefore any person who 
 can bring himself within the meaning of the term is 
 entitled to recover, not, indeed, for the negligence of any 
 
 (a) Cp. Caron v. Boston, &o. Ed. Co., 164 Mass. 523. Jn Maasacliusetts 
 a locomotive and a single oar conneoted and run together has been held to 
 be a train : Shea ■;;. New York, &o. Kd. Co., 173 Mass. 177. 
 
 (6) |;1896] A. 0. at 65. 
 
Signal, Points, etc., on a Railway 237 
 
 other railway servant, but for the negligence of those Chap. VI. 
 classes of railway servants who are specified in the sub- 
 section — that is, those " in charge or control of any signal, 
 points, locomotive engine, or train upon a railway." 
 
 On the meaning of the words " charge or control " in this '^Iff, °^ 
 connection, Gibbs v. G. W. Ry. Co. (a) is to be looked at. Gibts ». 
 
 mi J • . . . . . G. W. Ky. Co. 
 
 ihe decision is an earlier one than that just noticed. A 
 workman in the signal department of the defendants' railway 
 had to clean, oil, and adjust the points and wires of the 
 locking apparatus at various places along a portion of their 
 line ; for this purpose he was subject to an inspector, who 
 was responsible for the points and locking gear, which were 
 moved and worked by men in the signal-boxes. This 
 workman took the cover oif some points and locking gear 
 in order to oil them, and negligently left it projecting over 
 the metals of the line, and so caused injury to a fellow 
 workman. The attempt to render the company liable for 
 the neglect as that of a person in the service of the 
 employer who has the charge or control of points failed 
 both in the Divisional Court and in the Court of Appeal, 
 In the Divisional Court, Field, J., discussing the meaning 
 of " charge or control," doubted " whether the words ' charge 
 or control ' are intended to mean different things ; " 
 Mathew, J., thought that the Legislature had in contempla- 
 tion " the negligence of some person having charge or 
 control of the points for the purposes of traffic and of 
 movement." In the Court of Appeal, Brett, M.R, (h) draws Judgment of 
 
 ■t J; ' ' \ / Brett, M.E. 
 
 a distinction between charge and control. His words are : 
 " I cannot think that there is any colour for saying he [the 
 plaintiff] had the control of the points, and the only 
 question is whether he is a person who had the charge of 
 
 (a) 11 Q, B. D. 22 ; 12 Q. B. D. 208. 
 (6) 12Q. B. D. 212. 
 
238 
 
 Employers Liability Act, 1880 
 
 Tadguent of 
 Lord Coleridge, 
 
 Chap. VI. them within the meaning of the statute. I think that to 
 be such a person he should be one who has the general 
 charge of the points, and not one who merely has charge 
 of them at some particular moment." Lord Coleridge, 0. J., 
 too, discussing whether the workman whose fault was alleged 
 had charge or control, said : (a) " He certainly had to do 
 something from time to time to the machinery connected 
 with the points, but he himself .said he worked under the 
 direction of Saunders [the inspector], and Saunders was 
 called, and he proved, I think, that he was the person who 
 had apparently both the charge and the control of the 
 points, and that Fisher [the workman] was only a workman 
 under him', and was not a person who had either the charge 
 or the control of any points connected with the railway." 
 
 A good deal of ingenuity has been (extra-judicially) 
 expended on the question whether a tramway is a railway 
 within the section. Originally, doubtless, and in general 
 usage the terms may have been convertible. Now, however, 
 a distinction is drawn, (6) and the principle avails in this 
 case also, that was at the root of the decision in Murphy v. 
 Wilson (c) — that words expressing well-known objects are 
 to be confined in their ordinary usage to the designation 
 of them. 
 
 Is a tramway a 
 railway? 
 
 CompeDBatiou. 
 
 Compensation. 
 
 Where the workman establishes his right to compensa- 
 tion under the Act, the amount he may recover is limited 
 to "such sum as may be found to be equivalent to the 
 
 (o) 12 Q. B. D. 210. Cp. Caron v. Boston, etc. Ed. Co., 164 Mass. 523. 
 (6) The Tramways Act, 1870 (33 & 34 Vict. c. 78). Swansea Improve- 
 ments and Tramway Co. v. Swansea Urban Sanitary Authority, [1892] 
 1 Q. B. 357. Notice of Accidents Act, 1894 (57 & 58 Vict. c. 28V, soh. 
 railway, tramroad, and tramway." 
 
 (c) 52 L. Z. Q. B. 524. 
 
Compensation 239 
 
 estimated earnings, during the three years preceding the Chap. VI. 
 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." (a) 
 
 In Bortick v. Head, (6) a Divisional Court, overruling the Bortiok «. Head. 
 County Court judge, decided that the Act did not lay down 
 a measure of damages, but merely imposed a limit beyond 
 , which damages should not be recovered ; so that when a 
 jury estimated a sum for overtime work which the plaintiff overtime 
 
 •^ cai'uiDgs. 
 
 had earned for another employer than the one in whose 
 service the plaintiff was injured, the plaintiff was allowed 
 to recover the sum so assessed. 
 
 Noel V. Eedruth Foundry Co. (c) deals with the earnings Apprentice's 
 
 <f ^ ^ o earnings how 
 
 of an apprentice with a salary of Is. a week, which pro- ■="''="'»■'=*• 
 gressed yearly. In his fifth year, when he was injured, he 
 was getting 5s. a week. At the end of the year his 
 apprenticeship would have ended, and his rate of wages 
 as a workman might amount to 18s. a week. The County 
 Court judge awarded £80. The defendants appealed, but 
 conceded damages for three years at 5s. a week, i.e. £39. 
 In view of the concession the Court did not conceive that it 
 was bound to cut down this sum, but were not " satisfied 
 that on the true construction of the section, the standard 
 of the actual earnings during the last three years preceding 
 the injury can be left out of consideration, and that only 
 the words ' estimated earnings of a person in the same grade 
 employed in the like employment, and in the district in 
 which the workman is employed,' are to be taken into 
 account, the suggestion being that the only standard of 
 
 (a) S. 3. Ante, 126. 
 
 (6) 53 L. T. 909. 
 
 (c) [1896] 1 Q. B. 453. 
 
240 
 
 Employers Liability Act, 1880 
 
 Chap. VI. calculation is the rate of wages earned by persons of a 
 similar class at the time of the accident ; a proposition to 
 which 1(a) am not, as at present advised, prepared to 
 assent." In the same case it was contended that the 
 expression " earnings " could be construed to include the 
 value of an apprentice's tuition. The Court would not 
 admit this, though willing to concede that " food or clothing 
 which could be estimated at a money value might, be taken 
 into account." 
 
 This accords with the decision in Bortick v. Head, 
 Wrightson & Go., (6) that a jury may take into considera- 
 tion the wages earned by the workman suing when working 
 overtime for an employer other than the employer in whose 
 service the injury complained of is received. 
 
 The compensation is to be calculated on the basis of the 
 rate of wages in the district where the workman was working 
 at the. time of the injury. If, then, during the three years 
 the workman has passed from a district where a lower rate 
 of wages prevails to one where the rate is higher, the 
 compensation is to be reckoned all through at the higher 
 rate. 
 
 It seems that the actual payments made to the injured 
 person in respect of earnings are to be taken into account ; 
 at least that seems to be the inclination of the opinion of 
 Wills, J., in Noel v. Eedruth Foundry Co. ; (c) yet if the 
 earnings of such person are for any special reason abnormal, 
 then the average rate of wages is to be considered. For 
 example, if a workman were engaged for a special sum to do 
 a particular work, in the event of injury the compensation to 
 
 Basis of. 
 calculation, 
 
 Actual pay- 
 ments to b9 
 taken into 
 account. 
 
 (a) WiUs, J. 
 
 (6) 2 T. L. B. 103. 
 
 (c) [1896] 1 Q. B. 453. " Earnings means actual eainlligs " : CadzoW 
 Coal Co. V. GaHney, 8 P. 72 ; but see per Stirling, L.J., Ayres v. Buokeridge, 
 [1902] 1 K. B. at 70, under the Workmen's Compensation Act, 1897. 
 
Compensation 241 
 
 him would not be settled on the estimate ot three years' Chap. VI. 
 earnings at the same rate, but at the average rate of the ~~' 
 same grade of workmen in the district ; or again, if a work- 
 man were being paid specially low wages for some exceptional 
 reason, or were a volunteer working for the time at no wages 
 at all, the computation of compensation would not be that 
 of the personal rate, but that of the general rate of the 
 grade of workmen in the district. If, however, the wages of 
 the workman were fixed by actual work in a certain position 
 — for instance, as an apprentice or as a labourer — he would 
 not be enabled to recover a higher compensation than that 
 of the grade in which he was actually at work, because he 
 was competent to work in a higher grade, or indeed was 
 habitually employed in a higher grade, (a) 
 
 Under the standard fixed by the Act no deductions in No deauctiona. 
 respect of strikes and sickness are provided for. The 
 earnings are the full earnings for three years. Of course a 
 jury in any case may make these or other deductions ; they 
 are, however, not compelled to do so ; although, in no case 
 may they give compensation beyond the maximum of three 
 years' estimated earnings, subject to the deduction specified 
 in sec. 5. (6) 
 
 In the New South Wales Act (c) the value of any pay- 
 ment in respect of the injury, and also the value of any 
 insurance made by the employer on behalf of the workman, 
 are to be taken into account. There is no such provision in 
 the British Act. The matter is dealt with by the liberty 
 there is of contracting out of the Act. {d) 
 
 A voluntary payment made by the employer in respect voluntary 
 
 (ffl) Noel V. Bedruth Foundry Co., supra. 
 (6) Ante, 127. 
 
 (c) 50 Viot. No. 8, s. 6. 
 
 (d) Griffiths ■;;. Earl Dudley, 9 Q. B. D. 357. 
 B.E.L. R 
 
242 
 
 Employers Liability Act, 1880 
 
 Chap. VI. of an injury for which compensation is subsequently sought 
 under the Act, may undoubtedly be given in evidence in 
 reduction of damages, and a jury would probably consider 
 it in their award. They are, however, not compelled to do 
 so ; and may, if they please, notwithstanding any voluntary 
 payments, award the full three years' estimated earnings. 
 In New South Wales they would be unable to do this. 
 
 Lord Campbell'i 
 Act. 
 
 Damages 
 awarded. 
 Id Scotland, 
 
 Time for 
 giving notice 
 and bringing 
 action. 
 
 Where death has ensued upon injury, the action must 
 be brought under Lord Campbell's Act, {a) and then only 
 the loss of the reasonable expectation of pecuniary benefit 
 can be taken into account ; and thus a deduction must be • 
 made in respect of insurance money receivable. (6) 
 
 In Scotland, (c) in the Sheriff Courts, damages awarded 
 for the death of a man who has left a widow and a child or 
 children have been apportioned, the widow being allowed 
 half, " the other half being reserved for the ^children when 
 they came to sue." 
 
 In England the matter is regulated by sec. 2 of Lord 
 Campbell's Act, {d) whereby the damages may be apportioned 
 amongst those entitled " in such shares as the jury by their 
 verdict shall find and direct. " (e) Where the action is brought 
 in the Chancery Division, it has been decided that the 
 Court has power to apportion in such manner as a jury 
 could have done. (/) 
 
 Notice that injury has been sustained must be given 
 
 (a) 9 & 10 Vict. 0. 93. 
 
 (6) See Proposition VI., Chapter V. 
 
 Ante, 114. 
 
 (c) Spens and Younger, Law of Employer and Employed, 317. Cp. 
 Sanderson i;. Sanderson, 36 L. T. 847. 
 
 (d) 9 & 10 Viot. 0. 93 ; amended by 27 & 28 Vict. c. 95. 
 not apply to Scotland. Ante, 104. 
 
 (e) 9 & 10 Vict. c. 93, s. 2. 
 
 (/) Bulmer v. Bulmer, 25 Ch. D. 409. 
 
 This Act does 
 
Notice of Injury 243 
 
 withia six weeks (a) from the occurrence of the accident Chap. VI. 
 causing the injury, and the action must be commenced 
 within six months (6) from the same date. In the case of 
 death resulting the time to bring an action is extended to 
 twelve months. The want of notice is no bar to the main- 
 tenance of the action " if the judge shall be of opinion that 
 there was reasonable excuse for such want of notice." (c) 
 
 In the Scotch case of Johnston v. Shaw, ((^) the plaintiff Johnston u. 
 sought to excuse non-compliance with the provision for 
 the bringing of action within six months, alleging that, 
 .between the time of giving the notice and the expiration 
 of the six months, he was confined in a lunatic asylum in 
 consequence of his faculties having become impaired by 
 reason of the accident. The provision was, however, held 
 obligatory, and it was ruled that, beyond the time mentioned, 
 no action under the Act could be maintained. 
 
 Clark V. Adams, (e) another Scotch action under this ciark ». Adams, 
 section, raised a somewhat peculiar point. An action was 
 brought at common law, and was decided against the 
 pursuer, who appealed to the Court of Session. At the 
 hearing of the appeal it was stated that the pursuer had 
 become aware that he had given notice under the Em- 
 ployers Liability Act, 1880, and he sought to treat his 
 common law action as if it had been brought under the 
 
 (o) In M'Donagh v. MaoLellan, 13 K. 1000, the injury was sufiered on 
 the 7th of May, and the notice was sent by post, so that the employers 
 could not receive it before the 19th of June. Held, too late. 
 
 (6) By the Interpretation Act, 1889 (52 & 53 Vict. c. 68), s. 3, the ex- 
 pression mouth is to mean calendar month in every Act passed after 
 the year 1850. Cp. Bruner v. Moore, [1904} 1 Oh. 305. 
 
 (c) 43 & 44 Vict. 0. 42, s. 4. Ante, 126. See Previsi v. Gatti, 4 T. L. E. 
 487; M'Leod v. Pirie, 20 B. 381. In New South Wales this provision 
 has been held to apply only where due notice has not been given, and not 
 where no notice at aU has been given; Thompson v. Southern Coal Co., 
 15 N. S. W. L. E. (L.) 162. 
 
 (d) 21 Sc. L. E. 246. 
 (c) 12 E. 1092. 
 
244 Emjployers Liability Act, 1880 
 
 Chap, VI. statute. The Court seem to have considered that this 
 
 might be done within the six months, (a) but held that 
 
 since the time specified in the Act was elapsed it was not 
 possible in the particular case before them. 
 
 conroyv. Cavc and Lawrance, J J., decided in Conroy v. Pea- 
 
 Feacock. 
 
 Erroneous cock, (5) regarding, or at least treating, the point as too 
 
 decision. \/o a ^ 
 
 clear for argument, that in an action under the Employers 
 Liability Act, 1880, the defendant cannot rely upon the 
 defence that the notice of injury required by sec. 4 of the 
 Act has not been given, unless he has given notice that 
 he intends to rely upon it as a statutory defence pursuant 
 to Order X. rr. 10, 18 of the County Court Eules, 1886. (e) 
 Want of notice of injury, says Cave, J., "is clearly a 
 ' statutory defence,' because but for the statute no notice of 
 injury would be necessary." The words of the section on 
 which the learned judge was deciding show that an action 
 under the Act " shall not be maintainable unless notice . . . 
 is given." {d) In the absence of notice of injury and notice 
 by the defendant of statutory defence, the defendant must 
 wait (outside the Court would probably be preferable) (e) 
 while the judge is eliciting the want of that notice which 
 the statute makes an integral portion of the plaintiff's 
 cause of action ; and if judgment is then given ignoring 
 the requisites of the statute, on an appeal to a competent 
 
 {a) Morrison v. Baird, 10 R. 27X ; Murray v. Steel, 12 E. 943; this 
 seems to have been a sort of informal procedure under s. 6. In Scotland 
 it has been held that the question whether the omission to send notice of 
 injury to the employer is reasonable may be decided either at the adjust- 
 ment of issues, or at the trial, in the discretion of the judge : Trail v. 
 Kelman, 15 B. 4. 
 
 (6) [1897] 2 Q. B. 6. 
 
 (c) Now rr. 10, 18 of Order X. of County Court Eules, 1903. 
 
 (d) Keen v. MiUwall Dock Co., 8 Q. B. D., per Lord Coleridge, 484; per 
 Brett, L.J., 485. Clarkson v. Musgrave, 9 Q. B. D., per Keld, J., 890: 
 
 ' It is clear that the notice is a condition precedent to the right to sue." 
 
 (e) Edwards v. G. W. Ey. Co., 11 C. B. 588, 650 ; Park Gate Iron Co. u. 
 Goates, L. R. 5 0. P. 634. 
 
Notice of Injury 245 
 
 Court, Conroy v. Peacock must be formally OTerruled. Chap. VI. 
 Ignorance of the need of a notice liad been held not to be 
 a " reasonable excuse " for the absence of it. {a) 
 
 The Scottish Courts have been a bit exigent in this Scottish decisions 
 
 n 1 , on notice. 
 
 matter of the notice. Thus in M'Fadyen v. Dalmellington 
 Iron Co. (6) they refused to dispense with the notice though 
 the pursuer alleged that he was an old man and illiterate, 
 and that during the six months it was not known whether 
 the deceased would survive and take proceedings himself. 
 And in Connolly v. Young's Paraffin Light and Mineral 
 Oil Co. (c) they refused a dispensation where the action was 
 brought by the widow, who claimed indulgence on the 
 ground of her forgetfulness caused by her grief. 
 
 But Field, J., in Beckett v. Manchester Corporation, (cl) Fieia, j., in 
 
 ., -r 1 -1 » . "^ Beckett u. Man- 
 
 said : it matters not how defective the notice was, if it can Chester corpora- 
 
 _ ' tion. 
 
 be shown that it has not injured the defendants, that is to 
 say, if the defendants are not at the trial taken by surprise 
 in consequence of the defect " — in that case the omission 
 of the address and the date. 
 
 Public Authorities Peotection Act, 1893 AusProtectton 
 
 Act, 1893. 
 
 The Public Authorities Protection Act, 1893, (e) applies 
 in the case of a fatal accident under the Act, notwithstanding 
 
 {a) Ex parte Hannan, 18 N. S. W. L. E. (L.) 422. Want of notice has 
 been excused on the ground that the widow of the deceased man was in an 
 advanced stage of pregnancy and so excited that the doctor forbade her 
 being spoken to on the subject : Bromley v. Oldham, cited Kuegg, Em- 
 ployers' Liability (7th ed.) 74. In New South Wales the excuse that the 
 plaintiff had been for a long time in hospital, and was not in a fit state to 
 go on with the action, has availed : Miller v. Dalgety, (1884, N. S. W.) 
 1 W. N. 164; 2 W. N. 17. So has an explanation that negotiations 
 between the widow and the employer were begun within the six weeks, 
 but letters of administration were not granted tiU nearly eight months 
 after : Bulman v. Robertson, (1887, N. S. W.) 4 W. N. X31. 
 
 (6) 24 R. 327. (c) 22 E. 80. 
 
 (d) 52 J. P. 846. There is an instructive Massachusetts case, Ledwidge 
 V. Hathaway, 170 Mass. 348. 
 
 (e) 56 & 57 Vict. u. 67. 
 
246 Emjployers Liability Act, 1880 
 
 Chap. VI. that the Employers Liability Act allows a year from 
 the time of death for commencing an action, {a) This 
 being so a synopsis of the proyisions of the Act is given. 
 
 1. No action, (b) prosecution, or proceeding (e) will lie 
 against any person for any act done in intended execu- 
 tion (d) of any public statutory duty, or for any alleged 
 neglect thereunder, (e) unless commenced within six 
 months after the occurrence of the event from which it 
 
 (a) Markey v. Tolwortli Joint Isolation Hospital, [1900] 2 Q. B. 454. 
 
 (6) This includes actions where an injunction is asked for, see s. 1, 
 sub-s. (c) (and thus supersedes the law laid down in Flower v. Low 
 Leyton Local Board, 5 Oh. D. 347) ; Chapman v. Auckland Union, 23 
 Q. B. D. 294 ; and all actions in the Chancery Division, Harrop v. Mayor 
 of Ossett, [1898] 1 Ch. 525, or elsewhere, so long as the action is brought 
 against any one for an act done in pursuance or execution or intended 
 execution of any Act of Parliament : The Ydun, [1899] P. 236 ; and 
 extends even to the working by a municipality of a tram system under 
 statutory powers, Parker v. London County Council, [1904] 2 K. B. 501 ; 
 but not to the case of a contractor doing work for his own profit which a 
 public authority has been authorised to do: Kent County Council v. 
 Folkestone Corporation, [1905] 1 K. B. 620. It covers an ordinary action 
 for personal negligence : Lyles v. Southend-on-Sea Corporation, [1905] 
 2 K. B. 1 ; but not the breach of a private contract entered into in con- 
 templation of a public duty : Sharpington v. Pulham Guardians, [1904] 
 2 Ch. 449 ; Clarke v. Lewisham District Council, 19 T. L. E. 62 ; nor yet a 
 breach of duty by any company performing duties of public authority, but 
 also earning profit for its proprietors, e.g. a railway company: A.-G. v. 
 Margate Pier and Harbour Co., [1900] 1 Ch. 749. Pearson v. Dublin Cor- 
 poration, [1907] 2 I. B. 27. In libel, statements in a resolution dismissing 
 a schoolmaster upon which he founded an action against the School 
 Board, were held within the Act : Eeid v. Blisland School Board, 17 
 T. L. B. 626. Officers of a local board acting under orders to vindicate 
 a right of highway are held protected in an action for trespass brought 
 against them; GreenweU v. HoweU, [1900] 1 Q. B. 535. An action in rem 
 is mot within the Act : The Burns, [1907] P. 137: applying The Longford, 
 
 14 P. D. 34 ; nor is one for goods sold and delivered and for work and 
 labour : Milford Docks v. District Council, 65 J.P. 483. 
 
 (c) I.e. applications under 11 & 12 Vict. o. 44, for mandamus, pro- 
 hibition, or certiorari, not made by a department of the Government. The 
 time for moving these writs is limited by the Act to six months ; and the 
 law as stated in the Queen v. Mayor, &c., of Sheffield, L. E. 6 Q. B. 652, 
 
 15 now altered, except in the case of a certiorari to justices. 
 
 {d) Clothier v. Webster, 12 C. B. N. S. 790. The intention is no 
 defence on the merits : Selmes v. Judge, L. R. 6 Q. B. 724. 
 
 (e) Jolliffe V. Wallasey Local Board, L. R. 9 0. P. 62. 
 
Public Authorities Protection Act, 1893 247 
 
 takes its rise ; or in the case of a continuing damage («) Chap. VI. 
 within six months after its cessation, (b) 
 
 2. Where the defendant succeeds he is entitled to costs 
 to be taxed as between solicitor and client, (c) 
 
 3. Where the action is for damages the defendant may 
 plead tender of amends (cZ) before action, or may make a 
 payment into Court. If no more is recovered (e) than is 
 tendered or paid the plaintiff is not to recover any costs 
 incurred subsequent to the tender or payment; but the 
 defendant is to have his costs subsequent thereto as between 
 solicitor and client. (/) This provision does not affect the 
 costs of an injunction. 
 
 4. Where the defendant is in the opinion of the Court 
 not afforded " sufficient opportunity of tendering amends " 
 before the commencement of proceedings, the Court may 
 award costs against the plaintiff as between solicitor and 
 client. 
 
 (o) The calculation of the six months runs from the time of the legal 
 injury : Offin v. Bochford Bural District Council, [1906] 1 Oh. 342. The 
 prolonged effect of an injury is not a continuance of the act causing 
 damage : Carey v. Metropolitan Borough of Bermondsey, 20 T. L. B. 2 
 Markey v. Tolworth Joint Isolation Hospital District Board, [1900] 2 Q. B 
 454 ; WiUiams v. Mersey Docks and Harboiir Board, [1905] 1 K. B. 804 
 Spittal V. Glasgow (Corporation of), 6 P. 828 ; Polley v. Fordham, [1904] 
 2 K. B. 345 ; Turley v. Daw, 22 T. L. R. 231. 
 
 (6) Crumble v. Wallsend Local Board, [1891] 1 Q. B. 503. 
 
 (c) Avery v. Wood, [1891] 3 Ch. 115; Andrews v. Barnes, 39 Ch. D. 
 133. The general law applies to the plaintiff's costs : 53 & 54 Vict. o. 44, 
 s. 5 ; B. S. 0. 1883, Order LXV. r. 1. Beeve v. Gibson, [1891] 1 Q. B. 652 ; 
 Hasker v. Wood, 54 L. J. (Q. B.) 419. 
 
 (d) Davys v. Biohardson, 21 Q. B. D. 202. 
 
 (e) " Becover " in clause (o) of s. 1 means recover by judgment, or by 
 consent order : Smith v. Northleaoh Bural Council, [1902] 1 Ch. 197. 
 
 (/) The discretionary power under Order LXV. r. i._ to deprive the 
 defendant of his costs is not taken away by this provision: Bostock v. 
 Bamsey Urban District CouncU, [1900] 2 Q. B. 616 ; and the Act does not 
 apply to appeals : Fielden v. Morley Corporation, [1900] A. C. 133. No 
 special direction is needed for the defendant to take advantage of the Act : 
 North Metropolitan Tramways Co. v. London County Council, [1898] 
 2 Oh. 145. A consent order ^smissing an action with costs is equivalent 
 to a judgment : Shaw v. Hertfordshire County Council, [1899] 2 Q. B. 282. 
 
248 
 
 Employers Liability Act, 1880 
 
 Chap. VI. 
 
 Penalty. 
 
 Scope of the 
 Bection. 
 
 Penalty. 
 
 By sec. 5 (a) any penalty which is paid to the injured 
 workman in pursuance of any Act of Parliament is to be 
 deducted from the compensation payable in respect of a 
 cause of action under this Act ; and where the action has 
 been brought previously to the payment of any penalty, the 
 workman is not to be entitled to receive any such penalty 
 paid in respect of the same cause of action, (b) 
 
 Three states of fact seem contemplated under the first 
 words of this section : — 
 
 (1) The workman himself recovering in respect of his 
 
 injuries. 
 
 (2) In the event of death, his executor or administrator 
 
 recovering. 
 
 (3) In the event of death, and no executor or adminis- 
 
 trator being appointed, or if appointed neglecting 
 to bring an action within six calendar months of 
 the death, " all or any of the persons for whose 
 benefit the personal representative of would be 
 sued," recovering by virtue of sec. 1 of 27 & 28 
 Vict. c. 95. (e) 
 
 An absolute assignment by writing of a legal chose in 
 action under the Judicature Act, 1873, {d) may also have 
 been in the contemplation of the framers of the section, (e) 
 
 (a) AnU, 127. 
 
 (6) In Blenkinsop v. Ogden, [1898] 1 Q. B. 783, the contributory 
 negligence of the injured person wag held to be no answer to proceedings 
 for the penalty. 
 
 (c) Ante, 107. 
 
 (d) 36 & 87 Vict. c. 66, s. 25, sub-s. 6. 
 
 (e) As to a chose in action, see per Pry, L.J., Colonial Bank v. Whinney, 
 30 Ch. D. 261 at 285, affirmed 11 App. Gas. 426; also Law Quarterly 
 Beview, (1893) vol. ix., 311. 
 
Penalty 249 
 
 By the Coal Mines Kegulation Act, 1887, (a) every Chap. VI. 
 person guilty of an offence for which a penalty is not p^^^,;;;;;^^^ 
 expressly prescribed against the Act, shall be liable to a '" '"' °'Pp""'- 
 
 ■'■'■' ° Coal Mines 
 
 penalty not exceeding, if he is an owner, agent or manager, fg^j^'*"™ ^°'' 
 £20. By sec. 70, where there has been neglect to send a 
 notice of any explosion or accident, or where an offence 
 against the Act has occasioned loss of life or personal 
 injury, a Secretary of State may (if he think fit) direct 
 any penalty imposed in respect of the same neglect or 
 offence to be paid to or distributed among the persons 
 injured, and the relatives of any persons Tirhose death may 
 have been occasioned by such explosion, accident or offence, 
 provided that the persons so injured or killed have been 
 guilty of no contributory negligence. 
 
 There are similar provisions in Part III. of the Mctaiuferons 
 Metalliferous Mines Kegulation Act, 1872. (&) tionAoCmz' 
 
 Under the Factory and Workshop Act, 1901, (c) if any Factory and 
 
 . , .„ , . . ,. ,. / . Workshop Act, 
 
 person is killed or injured m consequence oi the occupier ism. 
 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 £100, and in the case of a 
 subsequent conviction in relation to a factory within two 
 years from the last conviction for the same offence not less 
 than £1 for each offence ; and the whole or any part of the 
 fine may be applied for the benefit of the injured person 
 or his family or otherwise, as the Secretary of State 
 determines. 
 
 (a) SO & 51 Viot. 0. 58, s. 59 (2). 
 
 ' (6) 35 & 36 Viot. o. 77, bs. 31-38. 
 
 (c) 1 Edw. Vn. c. 22, s. 136. In Blenkinaop v. Ogden, [1898] 1 Q. B. 
 783, the contributory negligence of the injured person was held to be no 
 answer to proceedings for the penalty. 
 
250 Employers Liability Act, 1880 
 
 Chap. "VI. Provided that— 
 
 (a) 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, (a) 
 
 (b) The occupier shall not be liable to fine under 
 this section if an 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. 
 
 The meaning of " factory " is extended by sec. 104 (a) 
 to docks, wharves, quays and warehouses ; and by sec. 105 (b) 
 to premises on which machinery worked by mechanical 
 power is temporarily used for the purpose of the con- 
 struction of a building or any structural work in connection 
 with a building ; also by sec. 106 (c) to certain railway 
 sidings. 
 Operation of The Working of the section appears to be as follows : — 
 
 the section. " '' '■ 
 
 If any penalty is imposed, and any portion of it is paid to 
 an injured workman, or distributed amongst the relatives of 
 one killed, the portion of the penalty so paid or distributed 
 is to be deducted from the amount of compensation awarded 
 under the present Act. If, however, the action is decided 
 before any proceedings for a penalty are taken, the work- 
 man is to recover his full compensation free of deductions ; 
 while in the case of the subsequent recovery of the penalty, 
 the employer is to pay the full sum, and is not to be per- 
 mitted to make any deduction with reference to the 
 compensation he has already paid. 
 
 It is thus apparently to the advantage of the employer 
 that proceedings for the penalty should be first taken ; 
 
 (a) See Propositions V.-X., Chapter III., Part I., ante, 52-61. 
 
Penalty 251 
 
 though it must be borne in mind that this is only con- Chap. VI. 
 tingently for his advantage, since the distribution is 
 dependent on the exercise of a discretion by the Secretary 
 of State. 
 
 In all these cases of the imposition of a penalty an Action at 
 
 .. D ^ p T 1 •/»•/! j_n t common law in 
 
 action 01 damages tor negligence lay — it it lay at ail, apart case of penalty 
 from the Employers Liability Act, 1880 — notwithstanding 
 the penalty ; for wherever the right existed independently 
 of the statute imposing the penalty, the penalty does not 
 take it away ; (a) moreover, the neglect of the statutory 
 precaution, which occasions the liability to the penalty, is 
 itself some evidence of neglect of the employer's duty at 
 common law to take reasonable and accustomed precautions. 
 There being an unqualified statutory obligation imposed 
 on a defendant, he cannot shift his responsibility for the 
 performance of the statutory duty on the shoulders of 
 another person. (6) 
 
 Every action for recovery of compensation must be Actjjji j" ^^^ 
 commenced in the County Court, and must be commenced 
 within six months from the occurrence of the accident 
 causing the injury, (c) The action may be ordered by the 
 High Court or a judge thereof to be removed into the High 
 Court, by a writ of certiorari or otherwise, if the High 
 Court or a judge thereof deem it desirable that the action 
 should be tried there, and upon such terms as to payment 
 
 (a) Proposition X., Chapter III., ante, 61. 
 
 (6) Groves v. Lord Wimborne, [1898] 2 Q. B. 402, dissenting from the 
 dictum of Lord Chelmsford, in Wilson v. Merry, L. B. 1 So. App. 326 
 at 341. See Atkinson v. Newcastle and Gateshead Waterworks Co., L. E. 6 
 Ex. 404 ; Couch v. Steel, 3 E. & B. 402. Betts v. Dalmeny Oil Co., 7 P. 
 787, under Coal Mines Regulation Act, 1887, s. 49, rule 21: statutory 
 duty to make " secure the roof and sides of every travelling road and 
 working place." 
 
 (c) S. 6, suh-s. (1). Ante 127. In the County Court an action is com- 
 menced on the day of entry of the plaint : C. 0. Kules, 1903, Order V. r. 1. 
 
252 Employers Liability Act, 1880 
 
 Chap. VI. of costs, giving security or otherwise, as the High Court or 
 a judge thereof shall think fit to impose, (a) 
 
 Certiorari. The practice under the provisions of the old County 
 
 Court Acts was, that in the case of common law actions the 
 removal was by the writ of certiorari, and in the case of 
 equity actions or matters the removal was by order. 
 Probably the consolidation of the Acts will make no 
 alteration in the procedure. 
 
 Grounds for The grouuds upou which the High Court or a judge 
 
 may remove apt action are in the section (b) stated to be that 
 they " deem it desirable that the action " " shall be tried in 
 the High Court." Consequently the reasons given may be 
 as various as the cases removed. Lopes, L. J., in Porter v. 
 Great Western Colliery Company, Limited, (c) specified 
 three, viz : — 
 
 (1) Where difficult questions of law would probably 
 arise at the trial of the action ; 
 
 (2) Where the character of the question raised, and the 
 nature of the evidence in support of it was special, 
 e.g. if a considerable amount of expert evidence had 
 to be considered, (d) 
 
 (3) Where the question in the actiou had previously 
 come before the County Court judge, and a new 
 trial had been granted. 
 
 All these considerations must be subject to the govern- 
 ing one, that this power of removal "was a jurisdiction 
 
 {a) 51 & 52 Vict. o. 43, seo. 126. 
 (6) Supra. 
 
 (c) 10 T. L. B. 380. 
 
 (d) The bare fact that there must he Boientiflo evidence and witnesses 
 is not sufficient : Munday v. Thames Ironworks and Shipbuilding Co., 10 
 Q. B. D. 59, per Manisty, J., at 61. 
 
Certiorari 253 
 
 which ought under this Act to be exercised only in Chap. VI. 
 exceptional circumstances." {a) 
 
 To these must be added — 
 
 (4) The probability of a fair trial not being obtainable 
 
 in the County Court district from any special 
 
 cause. (6) 
 
 In connection with this last ground the power now power to change 
 possessed by the County Court judge to change the place trkf 
 of trial must be taken into account, (c) This will form a 
 Tery important element in determining the course to be 
 taken where the objection is thereby to any particular 
 County Court as the place for trial of the action. 
 
 Brett, M.E., {d) states the rule that should govern in euio as to 
 England in deciding upon applications for the removal of Ty Brett,M.R', 
 
 Ti*/»i/^ ™ in The Queen v. 
 
 actions under the Act from the County Court to the Hieh Ji'^e«''f"'« 
 
 •' o City of London. 
 
 Court is as follows : — " They are only to be allowed if some '''""''• 
 new question of law is raised, or some very difficult question 
 in the particular case ; for instance, as to the way in 
 which the machinery caused the injury. The removal is ia 
 the discretion of the judge, and I should think that ia his 
 discretion he would, except in very peculiar circumstances, 
 leave the case in the County Court." 
 
 This rule is identical with that laid down in the earlier Mnnday v. 
 case of Munday v. Thames Ironworks and Shipbuildine works and swp- 
 
 . X- & building Co. 
 
 Co., (e) where Manisty, J., doubted whether an action at 
 common law could be consolidated with one under the Act ; 
 
 (a) See also Munday «. Tlie Thames Ironworks and Shipbuilding Co., 
 10 Q. B. D. 59, where the writ of certiorari was refused. 
 
 (b) Bates v. Warner, 5 T. L. E. 582. 
 
 (c) 51 & 52 Viot. c. 43, a. 85. 
 
 (d) The Queen v. Judge of City of London Court, 14 Q. B. D. 905 at 
 907. As to the principles regulating the practice in Scotland, M'Avory v. 
 Young's Paraffin Light and Mineral Oil Co., 9 B. 100, 
 
 (e) 10 Q. B. D. 59. 
 
254 
 
 Employers Liability Act, 1880 
 
 Movriaoa v. 
 Batod. 
 
 Chap. VI. since " the ordinary principle is that if there is a statutory 
 proceeding for a particular cause of action and compensa- 
 tion is recovered, although limited in amount, an action at 
 common law for large (a) damages shall not be maintained. 
 If proceedings have been taken before a magistrate and a 
 penalty or damages recovered, an action for the same cause 
 cannot afterwards be brought." (V) This may be explained 
 by considering Morrison v. Baird (c) in the Court of Session, 
 where a distinction is pointed out between cumulative and 
 mutually exclusive remedies. "I cannot conceive," says 
 the Lord Justice-Clerk (Moncreiff), " that the Legislature 
 ever intended that there should be both a common law and 
 a statutory action. . . . The ground upon which the action 
 is brought — the ground of liability — is a common law 
 liability ; and the only effect of the statute is, in the case 
 of fellow - workmen, to take away a plea which might 
 exclude such an action based upon the common law in the 
 event of the wrong complained of having been done by a 
 fellow-workman." Lord Young added : {d) " I agree with 
 your Lordship that it is not incompetent to combine the 
 common law and the provisions of the Employers Liability 
 Act in the same action." (e) 
 
 This manifestly means no more than that a workman is 
 not to recover damages twice over for the same injury, 
 though he may claim in the alternative. This, under the 
 
 Difference 
 between the 
 Scotch and the 
 English Eysteme. 
 
 (a) Probably this is a misprint for " larger." 
 
 (6) Cp. Midland Ky. Co. v. Martin, [1893] 2 Q. B. D. 172. 
 
 (c) 10 E. 271, 277. In Magee v. Dalglisb, 11 B. 857, an issue was 
 approved wMob concluded with the words : " Damages laid at common 
 law at £1000 or under the Employers Liability Act at £70 is." 
 
 (d) 10 B. 278. 
 
 (e) " The jury should be told by the presiding judge that their verdict 
 should be as to one cause of action or the other, and that they cannot give 
 judgment under both " : per Madden, C.J., Stephens v. Austral Otis Engineer- 
 ing Co., 27 V. L. B. 724, 728. The wording of this proposition wants 
 modification to make it a correct statement of English law : Betts v. 
 Dalmeny Oil Co., 7 P. 787. 
 
Qonsolidation of Actions 255 
 
 Scotch system, in which the Sheriff Courts have unlimited Chap. VI. 
 jurisdiction, may readily be done. In England the County 
 Court would not have jurisdiction beyond the £100 limit 
 except under the Act; so that claims in the alternative 
 would be to that extent hampered; though that does not 
 constitute a reason why they should not be pursued so far 
 as they may avail. Manisty, J., was probably thinking of 
 the case of a plaintiff recovering under the Act, and then, 
 with a view to secure larger damages, bringing his action at 
 common law ; in which case he would plainly be dis- 
 entitled, (a) If, however, he is to .be understood as afSrm- 
 ing that a workman may not frame his action in the 
 alternative either under the Act or at common law, then 
 the Act does not say so ; and the general rule of law in 
 the case of the existence of two remedies is otherwise. (6) 
 Does, then, the fact that simultaneous actions are brought 
 in different courts make a difference ? If it does, either or 
 both of the actions would not be maintainable. A stay 
 would be obtained with regard to the part common to the 
 two actions, (c) 
 
 Again : if an action under the Act is brought and fails, Action at 
 
 ° ■ common law 
 
 can the plaintiff proceed anew at common law ? For '^^*'^'^^™"-^i„ 
 
 the Act. 
 
 (a) See Seddon v. Tutop, 6 T. B., per Grose, J., 609 : " The only inquiry 
 is whether the saine cause of action has heen litigated and considered in 
 the former action." Op. Brunsden v. Humphrey, 14 Q. B. D. 141. 
 
 (6) Bagot v. Easton, 7 Ch. D. 1 ; Masters v. Jones, 10 T. L. E. 403 ; 
 Larbey v. Greenwood, Times newspaper, July '23, 1885, is a County Court 
 action under the Employers Liability Act, 1880, removed into the High 
 Court by certiorari to add a common law claim. Marrow v. Elimby & 
 Broughton Moor Coal and Eire Brick Co., [1898] 2 Q. B. 588, contained a 
 common law claim as well as the claim under the Employers Liability 
 Act, 1880: per Eigby, L.J., I.e. 600. In Scotland the practice is to 
 schedule alternatively in the issue the sums claimed respectively at 
 common law and under the Act : Goudie v. Paul, 22 E. 1. In Duthie v. 
 Caledonian Ey. Co., 25 E. 934, damages were recovered against one of two 
 defendants under the Employers- Liability Act, 1880, and against the 
 other at common law. Judgment was entered jointly and severally for 
 £156, the limit under the Act, and against the other for the balance. 
 
 (e) Morton v. Quick, 26 W. R. 441. 
 
256 Employers LiaMlity Act, 1880 
 
 Chap. VI. instance, an action against an employer fails through want 
 of notice of action, and the plaintiff commences a common 
 law action. Such action could be maintained on the 
 principle laid down by Willes, J., in Langmead v. 
 Maple : (a) " The conditions for the exclusion of jurisdiction 
 on the ground of res Judicata are that the same identical 
 matter shall have come in question already in a court of 
 competent jurisdiction, that the matter shall have been 
 controverted, and that it shall have been finally decided. 
 ... It is not sufficient to constitute res Judicata that the 
 matter has been determined on ; it must appear that it 
 was controverted as well as determined upon." (6) If an 
 action is brought under the Act for the negligence of the 
 master, and the plaintiff fails by the negligence alleged 
 being disproved, on the same principle a common law action 
 cannot be brought. If not proved, the ordinary rules re- 
 lating to nonsuits would apply. There remains the case of 
 an action brought at common law and failing, and subse- 
 quently an action commenced under the Act. This, too, 
 seems referable to the ordinary principles relating to res 
 judicata. But in every case sec. 4 must have been complied 
 with. 
 
 Application to Application for a certiorari must be made at Chambers 
 
 be made at 
 
 Chambers. and uot to the Court, (c) It may be made to a master, (d) 
 but not to a district registrar, (e) It is absolute in the first 
 instance. (/) 
 
 (a) 18 C. B. N. S. 270. 
 
 (6) " Although a declaration contains counts under which the plaintiff's 
 •whole demand might be recovered, yet, if no attempt has been made to 
 give evidence of some of the claims, they may be recovered in another 
 action. This was decided in Seddon v. Tutop, 6 T. E. 607, and that 
 decision has been confirmed by subsequent cases in the King's Bench and 
 Common Pleas " ■ Thorpe v. Cooper, 5 Bing. 116, per Best, C.J., 129. 
 
 (c) Bowen v. Evans, 3 Ex. 111. (d) R. S. C. 1883, Order LIV. r. 12. 
 
 (e) R. S. C. 1883, Order XXXV. r. 6. 
 
 (/) Dowding v. G. W. Ry. Co., 8 Jur. (N. S.) 1130, 
 
Certiorari 257 
 
 If a certiorari be refused by the Court or a judge, no Chap. VI. 
 other judge may grant it. The applicant has an appeal 
 from a judge to the Court, or may make a second applica- 
 tion on different grounds, (a) 
 
 Where a judge has declined to grant a certiorari the Appeal. 
 Court will not do so merely because it appears possible that 
 a serious question of law may arise ; since if it does, it may 
 be reconsidered on appeal ; nor because the decision, though 
 involving directly only a small sum, may be of importance 
 to the applicant as likely to affect other cases of a similar 
 nature. (6) 
 
 In the affidavit made for use on the application care Affidavit. 
 should be taken^to set out all the material facts. In Parker 
 V. Bristol and Exeter Ey, Co., (c) where this was not 
 done, the writ was set aside as improvidently issued, {d) 
 On the other hand, where- a certiorari had been issued by 
 leave of a judge on an affidavit which stated generally that 
 difficult questions would arise but did not state what they 
 were, the Court refused to set the writ aside, as it did not 
 appear that the particulars had not been pointed out to the 
 judge at Chambers, (e) 
 
 In Walker v. Gann (/) a procedendo was moved for on the f^^l^^Zi. 
 ground that a certiorari, issued and directed to the Forest 
 Court of Knaresborough, was not served till judgment had 
 been signed. Holroyd, J., was of opinion that it is "a 
 sound and wholesome general rule that a cause shall not 
 
 (a) 51 & 52 Viet. o. 43, s. 132. 
 
 (6) Staples v. Accidental Death Insurance Co., 10 W. E. 59. 
 
 (c) 6 Ex. 184. 
 
 (d) "If the certiorari issued i/mpromde, we can order it to be superseded, 
 and the return to be taken off the file " : per Lord Mansfield, C.J., Rex v. 
 Wakefield, 1 Bur. 485 at 489. 
 
 (e) Golding v. OaudweU, 2 L. M. & P. 175. 
 
 (/) 7 D. & R. 769. By 21 Jac. I. o. 23, s. 3, if a cause is sent back by 
 procedendo to an inferior Court it is not again to be removed. 
 
 B.E.L. S -1- 
 
258 
 
 Employers LiaMlity Act, 1880 
 
 Where case is 
 tried with jury. 
 
 Certiorari in 
 Ireland. 
 
 Chap. VI. be removed from an inferior jurisdiotion after judgment 
 has been signed there," and he thought "the rule par- 
 ticularly applicable where the defendant suffers judgment 
 by default in the first instance, and then applies for a 
 certiorari." The motion was allowed, (a) 
 
 Where the case is tried with a jury, by 43 Eliz. c. 5, 
 sec. 2, the writ is to be delivered to the judge of the 
 inferior Court at latest before any of the jury is sworn. 
 
 The provisions for the removal of actions from the 
 Civil Bill Court to the High Court of Justice in Ireland do 
 not materially differ from those obtaining in England. (J) 
 
 In allowing a certiorari, the practice in Ireland seems 
 to lay a considerably greater stress on the amount sought to 
 be recovered than is the practice in England, (c) 
 
 By virtue of sec. 9 of the Sheriff Courts (Scotland) Act, 
 1877, (d) any party to an action under the Employers 
 Liability Act, 1880, may claim that the process shall be 
 transferred to the Court of Session by a note in the process 
 (of which the form is given in the section), lodged at any 
 time before an interlocutor closing the process is pronounced 
 in the action, or within six days after such an interlocutor 
 is pronounced. The case is then to be set down and pro- 
 ceeded with before the Court of Session, as nearly as may be 
 as if it had been raised in that Court. If the case has 
 been improperly removed by the party ultimately success- 
 ful, he shall recover only such costs he would have been 
 entitled to if successful in the action in the Sheriff 
 Court, (e) 
 
 (a) This rule was approved in Kemp v. Balne, 13 L. J. O. B. 149 ■ and 
 in Pox D. Veale, 8 M. & W. 126. ' 
 
 (6) County Officers and Courts (Ireland) Act, 1877, 40 & 41 Vict o. 56 
 BS. 57, 58. ' 
 
 Scotch 
 procedure. 
 
 (c) Magee v. Martin, 16 Ir. L. T. 5. 
 (e) See Murray v. Steel, 12 R. 945. 
 
 (d) 40 & 41 Vict. c. 50. 
 
Notice of Action 259 
 
 The limitation on the right to appeal is not to apply to Chap. VI. 
 any actions to 'which the procedure of the Act is applied. 
 
 In Paton ■;;. Niddrie and Benhar Coal Co. (a) it was held 
 that this section does not interfere with the right of either 
 party under 6 Geo. IV. c. 120, sec. 40, having the cause 
 removed to the Court of Session, with a view to a jury 
 trial, after an order for proof has been pronounced, but this 
 was doubted in Kane v. Singer Manufacturing Co. (6) 
 
 The power to try with assessors (c) does not appear to Assessors. 
 have been resorted to, at any rate in any case with an 
 available record. 
 
 The rules for procedure (d) are embodied in the County Rules of pro- 
 
 . cedure. 
 
 Court rules, of which they form a part and are there to 
 be consulted. 
 
 Notice of action in respect of injury shall give : Sy.°' 
 
 (a) The name and address of the person injured. 
 (&) Shall state in ordinary language — (1) the cause 
 of the injury ; (2) the date at which it was 
 sustained, 
 (c) Shall be served : 
 
 (o) If the employer is a private person, on 
 him ; or, if there is more than one, on one 
 of them; and either (1) by delivering the 
 same to the person on whom it is to be 
 served, (2) by delivering it at his residence 
 or place of business, (3) by posting it in 
 a registered letter addressed to the person 
 on whom it is to be served to his last-known 
 place of residence or place of business ; 
 
 (a) 12 E. 538. (6) 6 F. 658. 
 
 (c) S. 6 (2). Ante, 127. 
 
 (d) S. 6 (3). Ante, 127. They are to be found in any Oounty Court 
 Practice. 
 
 (e) S. 7. Ante, 128. M'Leod v. Pirie, 20 E. 381.- 
 
260 Employers Liahility Act, 1880 
 
 Chap. VI. (/3) If the employer is a^ body of persons 
 
 corporate or unincorporate — (1) by deliver- 
 ing the notice at the oiBce or any one of the 
 offices of the body, (2) by sending it by 
 post in a registered letter to the office or 
 any one of the offices of the body. 
 
 A notice is not to be deemed invalid "by reason of 
 any defect or inaccuracy," (a) unless the defect or inaccuracy, 
 in the opinion of the judge who tries the action, (1) pre- 
 judices the defendant in his defence, and (2) " was for the 
 purpose of misleading." (6) 
 
 Mojie «. In Moyle v. Jenkins (c) the contention was that the 
 
 requirements of sec. 4 id) were satisfied by verbal notice ; but 
 
 (a) In Carter v. Drysdale, 12 Q. B. D. 91, the omission of the date was 
 held a " defect or inaccuracy " that did not render the notice invalid ; and 
 in Stone v. Hyde, 9 Q. B. D. 76, a letter from plaintiff's solicitor giving 
 the date of injury, and stating that the plaintiff for some time past had 
 been at a hospital under treatment " for injury to his leg," was held a 
 mere " defect or inaccuracy," and not such an omission as to make 
 the document "no notice at all." This was followed in Oox v. Hamilton 
 Sewer Pipe Co., 14 Ont. B. 300 ; but subsequently the notice sections in 
 the Ontario Act were altered : Cavanagh v. Park, 23 Ont. A. B. 715. In 
 Thomson v. Eobertson, 12 B. 121, a letter from the wife of the injured 
 man in these terms was held sufficient : " I find I will need some more 
 money and will you please oblige me with ten shillings. It is now five 
 weeks since Adam got his accident. His jaw has been so badly smashed 
 that he will never be the same man again. "Adam has been advised to get 
 damages from you." In Hearn v. Phillips, 1 T. L. B. 475, notice of injury 
 was served on the employer's son instead of on the employer. At the trial 
 the judge, knowing that the father was in Court, made the amendment, 
 and his order was upheld. The Divisional Court, however, intimated that 
 had the objection been to the proper service of the notice they might have 
 been constrained to a different decision. The notice need not refer to 
 proposed litigation : Hughes v. Blunt, (1888, N. S. W.) 5 W. N. 17. Notice 
 addressed to a deceased employer is sufficient if it is shown that the notice 
 has come to the hands of the trustee carrying on the business of the 
 deceased: Bathboue v. Boss, 35 S. J. 208. In Adams v. Nightingale, 72 
 Law Times newspaper 424, delivery to a child was held not sufficient 
 service ; see Forman v. Dawes, Car. & M. 127, where the witness serving 
 notice of injury did not know the handwriting of the plaintiff whose 
 signature it purported to bear ; but the notice was held suffioent if given 
 on behalf of plaintiff. 
 
 (b) Ante, 129. 
 
 (c) 8 Q. B. D. 116. 
 \d) Ante, 126. 
 
Notice of Injury 261 
 
 the Court held that, supposing that to be so if sec. 4 stood Chap. VI. 
 alone, yet it was so far affected by the terms of sec. 7 (a) as written notice 
 to make a written notice necessary. This view was sus- 
 tained by the Court of Appeal in the case of Keen v. 
 Millwall Dock Co. (&) Plaintiff's solicitor's letter referred 
 to particulars " which have already been communicated to 
 your superintendent." A verbal report had been made 
 to the defendants' inspector, who took down the particulars. 
 This was held insufficient. In this case Lord Coleridge, C. J., 
 also expressed an opinion that a notice, to satisfy the Act, 
 must be contained in one document. "If," he said, (c) 
 "the letter relied on in this case had referred to some 
 written document in which the nature and particulars of 
 the injury were given, it would not, I should have thought, 
 have been a compliance with the words of this enactment, 
 which describes the notice as one and single, containing 
 in it the incidents which the statute has required it to 
 contain as a condition precedent to maintaining any action." 
 The better opinion seems to be that this is not essential. 
 " I agree," said Brett, L. J., {d) " that, as a general rule , 
 the notice must be given in one notice, but I am not 
 prepared to say it would be fatal if it were contained 
 in more than one notice." Holker, L.J,, concurred in this 
 opinion. 
 
 In another case, (e) under sec. 264 of the Public Health MayOTfetc., of 
 Act, 1875, Lord Esher, M.E., with whom Bowen and Fry, ^»«' ^^'f''''^- 
 L.JJ., concurred, definitely laid down that, "it is not 
 necessary that the whole of a notice of action be set out 
 in one document." So that unless some distinction can 
 
 (as) Ante, 128. 
 
 (6) 8 Q. B. D. 482, 
 
 (c) L. c. 484. 
 
 {d) L. c. 485. 
 
 (c) Lamley v. Mayor, etp. p£ EaiSt Ketford, 55 J. P. 133, 
 
262 Employers Liability Act, 1880 
 
 Chap. VI. be taken between the notice required under the Employers 
 
 "~ Liability Act, 1880, and that formerly required under the 
 
 Public Health Act, 1875, it may be concluded that a 
 
 valid notice of action can be collected from two or more 
 
 documents. 
 
 In the notice it is not necessary to state the cause of 
 action, but only that which will enable the employer to 
 have substantial notice of what has occurred, so that he 
 may make proper inquiries, and may come to trial prepared., 
 to meet the plaintiff's case. The provision that he shall 
 state the "cause of injury" is not to be construed as a 
 requirement that he shall state the " cause of action." (a) 
 
 Service of With regard to the method of serving notice, there is 
 
 an important decision of the First Division of the Court of 
 Session, (&) on the point whether a notice sent by letter is 
 good if the letter is not registered. Evidence was given 
 that a letter not registered was posted and forwarded to the 
 defenders, who, in answer to a further letter sent after the 
 expiration of the six weeks, admitted its receipt, and stated 
 that they had forwarded it to the secretary of an insurance 
 Judgment of the compauy. The Lord President (Inglis) said it was quite 
 (ingUfl). indispensable under the Act " that notice of an action 
 
 should be served within six weeks, and, if it is not so 
 served, the action is not maintainable. This is plain 
 enough, but the point now to be considered is regarding 
 the manner of serving the notice. The statute provides two 
 modes in which it may be done, first, by ' delivering the 
 same to or at the residence or place of business of the 
 person on whom it is to be served.' That is plainly a 
 notice by a ' delivered ' letter, as distinguished from a 
 posted letter. The second mode is 'by post by a registered 
 
 (a) Clarkson v. Musgrave, 9 Q. B. D. 386, 390. 
 (5) M'Govan v. Tanored, 13 E. 1033. 
 
Notice iy Letter not Begistered 263 
 
 letter' — that is to say, the pursuer may avail himself Chap. VI. 
 
 of the Post Office as a means of service, and that by 
 
 means of a registered letter. The reason why the letter is 
 
 to be registered is that the pursuer is not to be entitled to 
 
 avail himself of the presumption of ordinary correspondence, 
 
 that a letter, when posted, is presumed to have reached its 
 
 destination unless it is returned from the Dead Letter Office. 
 
 But if, in addition to posting the letter, the pursuer 
 
 registers it, that, under the statute, creates a presumption 
 
 that the letter will reach its destination. This is expressed 
 
 by the last clause of the third paragraph of sec. 7 of the 
 
 Act, which says, * And in proving the service of such notice . 
 
 it shall be sufficient to prove that the notice was properly 
 
 addressed and registered.' That clause will not preclude 
 
 the defender proving, as matter of fact, that the letter did 
 
 not reach him ; just as little will it preclude the pursuer 
 
 from proving that though the letter was not registered, it 
 
 did, as matter of fact, reach the defender. Now, that has 
 
 been proved as matter of fact here." (a) 
 
 What is evidence sufficient to act on of the receipt of a Letter not 
 not registered letter was considered in Previsi v. Gatti. (6) 
 A letter was proved to have been posted on the 19 th 
 September ; the six weeks expired on the 25th September. 
 No proof of the receipt by the defendants was given, " but 
 the defendants did not say, nor indeed were they asked by 
 their counsel to say, when they did receive it." " Under 
 these circumstances the judge decided that the defendants 
 had received the notice on the 20th." On appeal the 
 Divisional Court held there was evidence justifying his 
 Hoing so. (c) 
 
 (a) Where service by post is dealt with in any Act subsequent to 1889, 
 see the Interpretation Act, 1889 (52 & 53 Yiot. o. 63), s. 26. 
 
 (b) i T. L. B. 487. 
 
 (c) Op. the Interpretation Act, 1889 (52 & 53 Vict. o. 63), s. 26. This 
 provision, however, only applies to Acts passed after 1st January, 1890. 
 
264 Employers Liability Act, 1880 
 
 Chap. VI. ■'■'^ Hetherington v. Kemp {a) evidence was given to show 
 that a letter was written by a merchant in his counting- 
 
 Hetheriogton D. - ■' 
 
 Kemp. house, and put upon a table for the purpose of being taken 
 
 and posted, and that by the course of business in the 
 counting-house all letters deposited on the table were 
 carried to the post-office by a porter. Lord EUenborough 
 ruled that this was not sufficient evidence of posting. 
 "Some evidence must be given that the letter was taken 
 from the table in the counting-house and put into the post 
 office. Had you called the porter, and he had said that 
 although he had no recollection of the letter in question, he 
 invariably carried to the post office all the letters found 
 upon the table, this might have done ; but I cannot hold 
 this general evidence of the course of business in the 
 plaintiff's counting-house to be sufficient." 
 
 In Skilbeck v. Garbett, (h) the evidence was that letters 
 were placed in a box in a room where witness was, and 
 were taken from that box by the postman, who invariably 
 called every day ; and this was held sufficient evidence of 
 posting. , 
 
 Proof of actual Proof of the actual receipt of a letter, when T)roof has 
 
 receipt of letter _ i ' jr 
 
 not requisite, been givou of its postage, never seems to have been 
 required by English law. So far back as 1795 it was 
 held in a bill of exchange case that the putting a letter 
 into the post offi'ce to the indorser in proper time, 
 informing him that the maker had not paid a note when 
 due, is sufficient evidence of notice to the indorser. (c) 
 There is a prima facie proof on proving posting, and 
 that the letter has not been returned by the post office, 
 
 (o) 4 Camp. 193 ; 16 E. E. 773 ; Trotter v. Maclean, 13 Oh. D. 574 
 at 580. Op. Toosey v. Williams, M. & M. 129 ; Eowlands v. De Veoohi, 
 1 C. & E. 10. 
 
 (b) 7 Q. B. 846. 
 
 (c) Saunderson v. Judge, 2 H. Bl. 509 ; 3 E. E. 492. 
 
Letter Not Registered 265 
 
 tliat the letter has reached its destination ; (a) and a con- Chap. VI. 
 elusive presumption that it arrived at its destination at the ' ' 
 hour it would be delivered in the ordinary course of postal 
 business. (6) 
 
 It is not suBScient if a letter is directed generally to a General address. 
 person in a large town, as " Mr. Haynes, Bristol," an 
 address which Abbott, O.J., held was not definite enough 
 to warrant a presumption that it reached the person 
 designated, (c) 
 
 His Honour Judge Euegg in a note to the 7th edition of is u negligence 
 
 ° "^ of a solicitor to 
 
 his work on Workman's Compensation, {d) says : " In one send notice by 
 case," which he does not further identify, "a solicitor who registered? 
 had omitted to give notice by registered letter was sued by 
 his client for negligence, and had to pay a considerable 
 sum as damages and costs." On these facts the decision 
 must have been wrong, as the Act provides for delivery of 
 the notice otherwise than by registered letter " at the 
 residence or place of business of the person on whom it 
 [the letter] has to be served '' ; and adopting a method 
 provided by Act of Parliament cannot -per se be negligence ; 
 though it may plainly be done in a negligent way. 
 
 An employer under the Act includes a body of persons Employer 
 
 - . includes 
 
 corporate or unmcorporate. (e) corporation. 
 
 (a) Warren v. Warren, 1 G. M. & E. 250. 
 
 (6) Stooken v. Collin, 7 M. & W. 515 ; Dunlop v. Higgins, 1 H. L. C. 
 381. As to special messenger, Maogregor v. Kelly, 3 Ex. 794. Op. Reed 
 V. Harvey (1880), 5 Q. B. D. 184. 
 
 (c) Walter o. Haynes, By. & M. 149 ; but cp. Burmester v. Barron, 17 
 Q. B. 828, where u bill was drawn dated " London " but not otherwise 
 giving the address of the drawer. Notice of dishonour of the bill was 
 given subsec^uently in a letter addressed to the drawer " London." As this 
 was addressed in the same way that the bill was drawn, it was held 
 •evidence on which a jury might find that due notice had been used to give 
 notice of dishonour. 
 
 (d) At p. 74. The case of Piers v. Lovatt, cited at p. 82 of the same 
 work, also presents no difficulty ; see the oases supra. 
 
 (e) S. 8. Ante, 129. Under the existing Act no action can be 
 
266 
 
 Employers Liability Act, 1880 
 
 Chap. VI. 
 
 Bailway ser- 
 vants. 
 
 Employers and 
 Workmen Act, 
 1875. 
 
 Workman, [a) 
 
 Workman (b) is defined to mean " a railway servant and 
 any person to whom the Employers and Workmen Act, 
 1875, (c) applies." 
 
 It has been suggested that the term " railway servant " 
 comprehends every servant of a railway. It is at least 
 doubtful whether in an Act whose object is " to extend and 
 regulate the liability of employers to make compensation 
 for personal injuries suffered by workmen in their service," 
 and in which " railway servant " is used in collocation 
 with workmen, those servants of a railway would be 
 included to whom its provisions are not otherwise appli- 
 cable, {d) The spirit of an Act of Parliament is not to be 
 sacrificed to the pedantry of verbal logic : Qui hceret in 
 litem hceret in oortiee. (e) 
 
 By sec. 10 of the Employers and Workmen Act, 1875, (/) 
 " the expression workman does not include a domestic 
 or menial servant, but . . . means any person who, being 
 a labourer, (g) servant in husbandry, (h) journeyman, (i) 
 artificer, (k) handicraftsman, (I) miner, (m) or otherwise 
 
 maintained against the representatives of a deceased employer : Gillett v. 
 Fairbank, 3 T. L. B. 618. Cp. a cmrious American case, King v. Henkie, 
 60 Am. B. 119. As to the operation of the maxim Actio personalis moritur 
 cum persona, amte, 101 ; also see Martin v. Baltimore Bd. Co., 151 U. S. 
 (44 Da-vis) 673. 
 
 (a) Ante, 124. 
 
 (6) S. 8. Ante, 129. 
 
 (c) 38 & 39 Vict. 0. 90. 
 
 (d) Gordon v. Jennings, 9 Q. B. D. 45. 
 
 (e) Eysten i). Studd, Plowd. 467. The point is concluded by Simpson 
 V. Ebbw Vale Steel, etc. Co., [1905] 1 K. B. 453, followed in Bagaall v. 
 Levinstein, [1907] 1 K. B. 531. 
 
 (/) 38 & 39 Vict. 0. 90. 
 
 (g) Post, 268. {h} Post, 273. (i) Post, 274. 
 
 (k) Post, 274. {I) Post, 275. (m) Post, 276. 
 
Workman 267 
 
 engaged in manual labour, (a) whether under the age of Chap. VI. 
 
 twenty-one or above that age, [b) has entered into or works 
 
 under a contract with an employer, (c) whether the contract 
 be made before or after the passing of this Act, be 
 express or implied, oral or in writing, and be a contract 
 of service (d) or a contract personally to execute any work 
 or labour." 
 
 By sec. 13 " this Act shall not apply to seamen or seamen, 
 to apprentices to the sea service." («) 
 
 By the Interpretation Act, 1889, (/) words importing the JJ^^^^" 
 masculine gender shall include females, unless a contrary 
 intention appears. 
 
 Domestic and menial servants are not within the Act. Domestic 
 
 servants not 
 
 A " domestic servant " is one who in ordinary circum- ""*"" "'^ ^''*" 
 stances resides in the master's house ; but this test is not 
 conclusive, (g) The determination of whether a servant is a 
 menial servant or not is a question of the facts in each 
 particular case, (h) 
 
 A menial servant is a somewhat more extensive term. Meniai servant. 
 Thus, a head gardener, living outside the house, but upon 
 the property, has been held to be a menial, though not a 
 
 (a) Post, 277. As to manual labour, M'Leod v. Pirie, 20 E. 381. 
 "Forewoman of a laundry" was held not a description such as to convey 
 to the Court knowledge one way or another as to the scale or proportion 
 of manual labour in the vocation : Moore v. Ross, 17 R. 796. 
 
 (6) Post, 280. (c) Post, 280, 284. (d) Post, 288. 
 
 (e) In Oakes v. Monkland Iron Co., 11 R. 579, a servant employed on 
 board a vessel solely used on a canal was held not to be a seaman. In 
 Proy V. Balmain Steam Ferry Co., 7 N. S. W. R. (Law) 146, an engineer 
 of a steam ferry-boat was held not within the Act as not ordinarily engaged 
 in manual labour. In Corbett v. Pearce, 20 T. L. R. 473, a man engaged 
 navigating a barge on the Thames which might be used for coasting 
 purposes was held a seaman. " Seaman " is defined by Merchant Shipping 
 Act, 1894 (57 & 58 Vict. o. 60), s. 742. Cp. The Ruby (No. 2), [1898] P. 59. 
 
 (/) 52 & 53 Vict. c. 63, s. 1, sub-s. 2. 
 
 (g) Graham v. Thomson, 1 Shaw, 309. 
 
 {h) Lawler v. Linden, Ir. E. 10 C. L. 188. 
 
268 
 
 Employers Liability Act, 1880 
 
 Labonrer, 
 
 Manual labour 
 and manual 
 work dis- 
 tinguished. 
 
 Chap. VI. domestic servant, (a) Domestic servants are those occupied ■ 
 in the service of the master's house ; menial (b) servants 
 those engaged on the establishment. Servants in either of 
 these classes are, by the exception in the definition, taken 
 out of the operation of the Act ; were this not so, they 
 would come within it as labourers. 
 
 " Labourer."(c) — "A labourer " is a man who digs and does 
 other work of that kind with his hands, {d) Parke, B.'s 
 definition (e) is, those who " enter into a contract to employ 
 their personal services, and to receive payment for that 
 service in wages." 
 
 To bring a person within the section it is further 
 necessary that he should be engaged in " manual labour." 
 The distinction between this and " manual work " is pointed 
 out by Smith, J., in Cook v. North Metropolitan Tramways 
 Co. (/) "The expression used" (in the Act), he says, 
 "it should be noted, is not 'manual work,' but 'manual 
 labour,' for many occupations involve the former but not 
 the latter, such as telegraph clerks, and all persons engaged 
 in writing. I cannot see the distinction between driving 
 and other occupations which involve no manual labour, 
 though they do involve manual work." 
 
 In The Queen v. Woitlej,(g) a case under the Stamp 
 Act, with reference to the non-stamping of an agreement, 
 
 (a) Nowlan v. Ablett, 2 C, M. & R. 54. In Ireland a steward and 
 gardener was held not to be " a menial servant " : Forgan v. Burke, 12 Ir. 
 0. L. B. 498. In Niooll v. Greaves, 33 L. J. G. P. 259, a huntsman vfas 
 held a menial servant. Op. Ogle v. Morgan, 1 De G. M. & G. 359- 
 Vaughan v. Booth, 16 Jur. 808. 
 
 (6) Saxon meine or mesnie— one of a household ; Skeat, Etym. Diet., 
 sub voce, Menial. 
 
 (c) Ante, 266. ; 
 
 (d) Per Brett, M.E., Morgan v. London General Omnibus Go 53 
 L. J. Q. B. 352. 
 
 (e) Riley v. Warden, 2 Ex. 59 at 63. 
 (/) 18 Q. B. D. 683 at 634. 
 (g) 21 L. J. M. C. 44. 
 
Workman 269 
 
 which was contended to be within the exemption for the Chap. VI. 
 
 hire of a labourer, Lord Campbell saw no reason " for con- 
 
 fining the meaning of the word ' labourer ' to a mere hedger 
 
 and ditcher"; and the Court held, that a man engaged 
 
 to take charge of glebe land at £25 a year and a third 
 
 of the clear annual profit after all expenses of rent, rates, 
 
 labour and interest of capital were paid, was not a " menial 
 
 servant " but a " labourer," On a similar point arising in 
 
 Wilson V. Zulueta, (a) Erie, J., said, " No man would doubt Erie, j. s, com- 
 
 that a stoker hired to work an engine on land would be a 
 
 labourer, whether the engine were moveable or not ; and it 
 
 would make no difference that the engine were one moveable 
 
 on water ; the stoker would not for that reason cease to be 
 
 a labourer." He adds later on in his judgment : " It is a 
 
 matter of common knowledge that words in one Act of 
 
 Parliament may have a meaning which they would not have 
 
 in another ; and I do not mean to say that the plaintiff 
 
 might not, under some other Act of Parliament, be subject 
 
 to liabilities as a mariner." 
 
 Firemen and engineers on steamers of every kind are Firemen ana 
 
 engineers. 
 
 decided to be outside the Employers Liability Act of New 
 South Wales. (&) 
 
 The foreman of a gang of labourers engaged on a ship in Foreman ot 
 stowing bales of wool, and whose work was to unhook the 
 bales as they were brought to them to the hatchway by 
 means of a steam crane, and then to throw them down into 
 the hold, has been held to be himself a labourer, (o) 
 
 In Wilson v. Glasgow Tramway Co.,{d) under theJ™»™yao'3 
 
 conductors, 
 
 (a) 14 Q. B. 405, per Erie, J., at 415. 
 
 (b) 50 Viot., No. 8; Froy v. Balmain Steam Ferry Co., 7 N. S. W. R. 
 (Law) 146. 
 
 (c) Kellard «. Rooke, 19 Q. B. D. 585 ; 21 Q. B, D. 367. So has a " hatch 
 mouth man" : Falconer v. M'Gabe, 3 F. 10. 
 
 (d) 5 E. 981. 
 
270 Employers Liability Act, 1880 
 
 Chap. VI. Employers and Workmen Act, 1875, a decision previous 
 wiiso^lT" to the passing of the Employers Liability Act, a tramway 
 tJ^wIj Co. conductor was held " not other than a labourer employed to 
 attend on the tramway oars as much so as a miner employed 
 to work a windlass or the gearing of a pit, or a man engaged 
 to drive the horses of a trackboat on a canal." (a) This is 
 Morgan v. inconsistent with Morgan v. London General Omnibus Co., (h) 
 Omnibus Co. in the English Court of Appeal, where an omnibus con- 
 ductor was held not to be a labourer within the definition ; 
 since " his real and substantial business is to invite persons 
 to enter the omnibus and to take and keep for his employers 
 the money paid by the passengers as their fares ; in fact, he 
 earns the wages becoming due to him through the confi- 
 cootD. North dence reposed in his honesty." (c) In Cook v. North 
 
 Metropolitan t m r^ 
 
 Tramways Co. Metropolitan Tramways Co. {a) the driver of a tramcar was 
 held to be excluded from the benefit of the Act because 
 the expression used is " manual labour " and not " manual 
 work " — that is, work apart from the necessity of thought 
 and skill. On the other hand, the plaintiff in Yarmouth 
 V. France (e) was held to be within the definition of 
 "workman" in the Employers and Workmen Act, 1875. 
 "He is," said Lord Esher, M.K., (/) "a man who drives 
 a horse and trolley for a wharfinger. We must take into 
 account what his ordinary duty was. He has to load and 
 unload the trolley. That is manual labour. His duty 
 may be compared to that of a lighterman who conducts 
 a barge or lighter up and down the river. The driving the 
 
 (a) L. c, per Lord Justice-Olerk Monoreiff, 988. 
 (6) 12 Q. B. D. 201 ; 13 Q. B. D. 882. 
 
 (c) L. c, per Brett, M.B., 884. 
 
 (d) 18 Q. B. D. 683 ; but in Smith v. Asaooiated Omnibus Co., [1907], 
 1 K. B. 916, the driver of a motor omnibus was held to be a person " other- 
 wise engaged in manual labour," and entitled to the benefit of the Act. 
 
 (e) 19 Q. B. D. 647. See Leech v. Gartside, 1 T. L. B. 391. 
 (/) 19 Q. B. D., per Lord Esher, M.E., 651. 
 
Workman 271 
 
 horse and trolley and the navigating of the lighter form Chap. VI. 
 
 the easiest part of the work ; his real labour, that which 
 
 tests his muscles and his sinews, is the loading and 
 unloading of the trolley or the lighter." 
 
 The inquiry in these cases is mainly one of fact, that 
 is, whether the duties in any case performed are mainly 
 manual or mainly mental. The question was again brought 
 before the Court of Appeal in Bound v. Lawrence, (a) 
 in the case of a grocer's assistant, when the test applicable Test applicable. 
 was determined to be an inquiry what is "the nature 
 of the substantial employment " unaffected by considera- 
 tion of " matters that are incidental and accessory." (6) 
 In an earlier case (e) to the same effect, Day, J., had 
 said : (d) " Every one knows the difference in degrees of 
 labour. For instance, no one would think of requiring a 
 stud groom to groom cart horses, or a groom of the 
 chambers or a butler to clean his boots. Here the respon- 
 dents bound themselves to employ the appellant, not in 
 merely mechanical work, but in a higher class of labour, 
 viz. developing ideas originating with his employers or 
 inventing and carrying out ideas and suggestions of his own 
 in furtherance of the business of the firm." The conclusion 
 was that the appellant was not within the Act. The driver 
 of a motor omnibus is a workman, (e) 
 
 In Hunt V. G. N. Ev. Co., ( f) Pollock, B., excluded an Hnnt v. g, n. 
 occasional resort to manual labour as sufficient to make 
 
 (a) [1892] 1 Q. B. 226. 
 
 (6) [1892] 1 Q. B., per Pry, L.J., 229. 
 
 (c) Jackson v. HIU, 13 Q. B. D. 618. 
 
 (d) L.C. 621. 
 
 (e) Smith v. Associated Omnibus Co., 23 T. L. E. 381. 
 
 (/) [1891] 1 Q. B. 601. The workman in question happened to be a 
 railway servant, so that the case is not directly an authority under the 
 Employers Liability Act, 1880 : Lamb v. G. N. By. Co., [1891] 2 Q. B. 281, 
 note at 282. 
 
272 
 
 Employers Liability Act, 1880 
 
 Chap. VI. a " person engaged in manual labour " ; for such a man's 
 "primary duty was to use his intelligence, not his hands." 
 In Eegina v. Louth Justices, (a) a hairdresser was held 
 not a workman engaged in manual labour. But in May- 
 nard v. Peter Eobinson (6) a worker with a sewing machine 
 who also ironed materials was held to be engaged in manual 
 labour ; as also was one who though called a stage manager 
 was employed to shift scenery and furniture, (c) 
 
 The term " labourer," under 20 Geo. II. c. 19, has been 
 held to extend to labourers of all descriptions; as, for 
 instance, to a labourer who had contracted to dig and stem 
 a well for cattle, to be paid for by the foot, and who em- 
 ployed another to assist him in the work, (d) though not to 
 a caretaker (e) of goods seized under a fi. fa. It does not 
 apply to " a carpenter, a bailiff, nor the clerk of a parish." (/) 
 
 Labourer. 
 
 Contractor, 
 
 A contractor for work is not a workman or labourer; 
 thus, where one took a contract to execute work on a 
 railway at a certain sum per cubic yard, and employed 
 other men to assist him in the work, he was held not to be 
 a workman or labourer, {g) 
 
 This was affirmed in the Exchequer Chamber (K) on the 
 ground that the Truck Act, (t) under which this and the 
 preceding case were determined, " was not designed for 
 the protection of persons taking contracts for labour to be 
 
 (a) [1900] 2 Ir. R. 7U ; Hoara v. Eobert Green, Ltd,, [1907] 2 K. B. 
 315. 
 
 (6) 19 T. L. B. 492. 
 
 (c) Bushbrook v. Grimsby Palace Theatre, 24 T. L. B. 617. 
 
 (d) Lowtber v. Earl of Radnor, 8 East. 113. 
 
 (e) BranweU v. Pennepk, 7 B. & C. 536. 
 
 (/) Morgan v. London General Omnibus Co., 13 Q. B. D., per Brett, 
 M. B., 833. 
 
 (<;) Biley v. Warden, 2 Ex. 59. 
 
 (A) Ingram v. Barnes, 7 E. & B. 115 at 134, 
 
 (i) 1 & 2 Will. IV, 0, 87, s, 3, 
 
Workman 273 
 
 done by others, persons who speculate upon the state of the Chap. VI. 
 labour market " ; and that " when the procuring work to be 
 done by the hands of others comprehends the whole of what 
 a man contracts for, the circumstance of his doing some 
 portion of the work himself does not bring him within the 
 statute — there must be a contract by which he binds himself 
 to do it." " When we look at the provisions of the Act," 
 says Cockburn, C.J., (a) "it seems to be clear that the 
 Legislature intended to protect only labourers, not what are 
 commonly called contractors." 
 
 " Servant in husbandry." (h) — A " servant in husbandry " servant in 
 
 husbandry. 
 
 does not refer merely to persons engaged in tilling and 
 sowing land or in other acts connected with the production 
 of crops, but includes all servants employed upon a farm 
 who are, by the terms of their contract of service, bound to 
 make themselves useful in its management. 
 
 This definition, which was intended to meet the case of 
 a bailiff or superintendent on a farm, must be limited by 
 the words " engaged in manual labour." (e). 
 
 A waggoner who during the harvest worked in the waggoner 
 
 ^ , working in 
 
 harvest field generally was held a " servant in husbandry ; " harvest aeu. 
 and there was held to be some evidence (d) to justify a similar 
 finding where a female servant acted as dairymaid and Dairymaid, 
 assisted in harvest work, but also assisted in the cooking and 
 in making the beds of the household, (e) In Scotland a Kitchen 
 servant engaged by a farmer to act as "kitchen woman 
 
 woman. 
 
 (a) 7 E. & B. at 135. 
 (6) Ante, 266. 
 
 (c) Per Bovill, arguendo, Davies v. Lord Berwick, 3 E. &. E 549 at 
 551. 
 
 (d) LiUey v. Blwin, 11 Q. B. 742. 
 
 (e) Ex parte Hughes, 23 L. J. M. C. 138. 
 
 B.E.L. T 
 
274 
 
 Employers Liability Act, 1880 
 
 Chap. VI, 
 
 Dictum of 
 Brett, M.R. 
 
 Journeyman. 
 
 Pistinctiun 
 between, and 
 labourer. 
 
 Artificer. 
 
 and bye woman " was included amongst " servants 
 husbandry." (a) 
 
 Brett, M.R, (Z)) says: "A man employed to dig tl 
 ground is a ' servant in husbandry.' " This statemer 
 however, must be taken with obvious reservations; othe 
 wise it would include a grave-digge? and a navvy ; both 
 whom are included in other terms of the definition. 
 
 "Journeyman." — "Etymologically considered," says Da 
 J., (e) " a journeyman is one employed by the day ; but thj 
 is not in the sense in which the term is ordinarily used, fo 
 in most trades where journeymen are employed — butcher 
 bakers and tailors, for instance, — they are hired and pai 
 by the week." In the Court of Appeal, in the same case, [i 
 Brett, M.E., defines a "journeyman" as " a man who 
 working for a master, such as a carpenter." 
 
 " Artificers, handicraftsmen, miners, etc., do not necei 
 sarily or properly fall under the denomination of Idbouren 
 there being, as I take it," says Lord Ellenborough, (e) " 
 known distinction between a journeyman in any art, trad 
 or mystery, or other workmen employed in the differei 
 branches of it, and a labourer." 
 
 " Artificer."—" An ' artificer,' " says Brett, L.J.,(/) " is 
 skilled workman, and a ' handicraftsman ' is the same." I 
 this must be added the qualification, " engaged in manui 
 labour." " The party to be an artificer," says Jervis, C. J., {t 
 
 (a) Clarke «. M'NaugM, Arkley, 33. 
 
 (V) Morgan v. London General Omnibus Co., 18 Q. B. D. 882 at 884. 
 
 (c) Ibid. 12 Q. B. D. 201 at 206. 
 
 (d) 53 L. J. Q. B. 352 at 358. This sentence does not appear in t] 
 Law Eeports. 
 
 (e) Lowtber v. Earl of Radnor, 8 East 118 at 124. 
 
 (/) Morgan v. London General Omnibus Co., 18 Q. B. D. 834. 
 
 (g) Sharman v. Sanders, 22 L. J. 0. P. 86 ; approved in tie Ex. CI 
 Ingram v. Barnes, 7 E. & B. 115 at 132. ^^ 
 
Workman 275 
 
 " must be a person who is to have the personal performance Chap. VI. 
 of some work for which he is^ to be paid wages, and this 
 must be with reference to the original contract or 
 obligation." 
 
 " I cannot conceive, " says Williams, J., (a) " that the e^ parte 
 word 'artificer' only applies to persons engaged in such 
 occupations as require merely (b) manual labour." The term 
 was applied in the case from which the above quotation is 
 taken to a designer of patterns for a calico printer. It has 
 also been applied to a working tailor engaged to make 
 clothes as he should be required, each garment to be paid 
 for according to a price list ; (e) to a stuff presser or stuff 
 finisher of Italian goods, working manually at weekly wages 
 and a commission, and besides superintending other work- 
 men (rf); to a framework knitter who manufactured stock- 
 ings, (e) and, under the Stamp Acts, to an overseer in a 
 printing ofiice. (/ ) 
 
 To constitute an artificer there must be an agreement to 
 work personally, (g) but the fact of having assistants does 
 not disqualify, nor yet that the work they do is piece- 
 work, (h) 
 
 " Handicraftsman." — By the Workshop Eegulation Act, Handicrafts- 
 1867, (i) handicraft shall mean " any manual labour exercised 
 by way of trade or for purposes of gain in or incidental to 
 the making any article or part of an article, or in or 
 
 (a) Ex parte Ormrod, 1 Dow. & Li. 825. 
 
 (6) In 13 L. J. M. C. 73 the word used is " great." 
 
 (c) Ex parte Gordon, 25 L. J. M. C. 12. 
 
 (d) Whiteleyi). Armitage, 13 W. B. 144. 
 
 (e) Moorhouse v. Lee, 4 F. & P. 354. 
 (/) Bishop V. Letts, 1 P. & P. 401. 
 
 (g) Weaver v. Ployd, 21 L. 3. Q. B. 151. 
 
 {h) Bowers v. Lovekin, 25 L. J. Q. B. 371. 
 
 (i) 30 & 31 Viot, Q, 146, s. 4, repealed by 41 Vict, o, 16, sch, 6. 
 
-276 Employers Liability Act, 1880 
 
 Chap. VI, incidental to the altering, repairing, ornamenting, finishing 
 or otherwise adapting for sale any article." 
 Making straw-plait is a handicraft, (a) 
 
 Iron riyetters — " angle-iron smiths and platers " — paid at 
 the rate of £5 a ton for the work executed, with liberty to 
 employ other workmen of inferior skill to themselves, " were 
 clearly handicraftsmen " within 4 Geo. IV. c. 34, sec. 3. (6) 
 
 A person who contracted to weave certain pieces of silk 
 goods for another at certain prices has been held not to 
 be " an artificer or handicraftsman " or " other person " 
 within 4 Geo. IV. c. 34, sec. 3. (c) 
 
 An overlooker of looms, who also does small repairs and 
 puts the warps in, is a handicraftsman." (d) 
 
 Miner. " Miner." — This word covers persons in the employ of 
 
 " butty-men " who enter into a contract with the owners of 
 the mine to get coal, and are injured by others engaged in 
 the same system of work, (e) 
 
 The term " miner " would appear to include all workers at 
 underground excavations employed to dig out minerals. 
 
 " The term," say Messrs. Spens and Younger, (/) " would 
 not apply to a pithead man, but the latter would be 
 embraced, if not under any other .category, in that of 
 * otherwise engaged in manual labour.' " 
 
 {a) Beadon v. Parrott, L. B. 6 Q. B. 718. 
 (6) Lawrence v. Todd, 32 L. J. M. C. 238. 
 
 (c) Hardy v. Kyle, 9 B. & 0. 603. 
 
 (d) Leech v. Gartside, 1 T. L. B. 391. 
 
 (e) Brown v. Butterley Coal Co., 2 T. L. B. 1S9; Morrison v. Baird, 10 
 B. 271 at 280. Op. Marrow v. Plimby & Broughton Moor Coal and Fire 
 Brick Co., [1898] 2 Q. B. 688 ; Mtzpatriok v. Evans, [1902] 1 K. B 505 ■ 
 and see Johnson v. Lindsay, [1891] A. C. 371. 
 
 (/) Employers and Employed, 140. 
 
Workman 2-77 
 
 A quarry is distinguished from a mine as being "a Chap. VI. 
 
 place upon or above and not under ground." (a) Quarry- 
 
 men, it not held to be miners withm the contenaplation 
 of the Act, (6) would yet be within it as " otherwise 
 engaged in manual labour " ; which has been expounded 
 by Brett, M.E., (c) to mean " any person engaged in the 
 same way as all the others are engaged, although they do 
 not go by the same names." {d) 
 
 "Otherwise engaged in manual labour." («) — A man Manual labour. 
 engaged as " a potter's printer, overlooker and mixer," 
 assisted in his work by "transferrers" whom he himself 
 engaged and paid, is a workman "engaged in manual 
 labour," notwithstanding that for the sake of speed and 
 convenience he paid for manual assistance. (/) 
 
 Men were engaged to load a ship. It was the duty of 
 one of them to guide the beam of a crane used in the load- 
 ing with a guy rope, and to give directions when to lower or 
 hoist the chain. He was " engaged in manual labour." {g) 
 
 A slater, paid by the piece and not bound to do the work 
 personally, but, as a matter of fact, working himself at the 
 time when he received the injury complained of, was found 
 by the County Court judge to be a workman, and the 
 
 (a) Per Turner, L.J., BeU v. WUson, L. B. 1 Ch. 303. 
 (6) Devonshire v. Rawlinson, 28 J. P. 72. 
 
 (c) Morgan v. London General Omnibus Co., 53 L. J. Q. B. 853. 
 
 (d) As to " a contract personally to execute any work or labour," see 
 Sadler v. Henlock, 4 B. & B. 570. 
 
 (e) See under " Labourer," wnte, 268. For the meanings of " otherwise" 
 see Stroud, Jud. Die. sub i)oce. Generally when following an enumeration 
 it should receive an ejusdem generis interpretation, much in the same way 
 as " other," g.v. I.e. See also In re Clark, ex parte Sohulze, [1898], 2 Q. B. 
 330. 
 
 (/) Grainger «. Aynsley, 6 Q. B. D. 182. 
 
 (g) Shafiers v. General Steam Navigation Co., 10 Q. B. D. 356. 
 
278 Employers Liability Act, 1880 
 
 Chap. VI. Divisional Court refused to disturb the finding, holding that 
 thiere was evidence in support of it. (a) 
 
 But, under the Truck Act, a labouring man who entered 
 into a written contract with a railway contractor to make as 
 many bricks as the contractor required, taking the clay 
 and finding all labour in preparing it, while the railway 
 contractor supplied the materials and paid so much a 
 thousand for the finished bricks, was held not to be a 
 workman ; because there was no contract binding him to do 
 the work personally. (6) 
 
 Test, The criterion is, whether the workman who did work 
 
 with his own hands in performance of the contract was 
 absolutely bound by the terms of the contract so to do. (c) 
 
 The reason for the discrepancy between Stuart v. Evans 
 and the law as declared in the earlier cases may be that the 
 Divisional Court in that case had only to find whether there 
 was any evidence that could possibly sustain the County 
 Court judge's decision. It may also be that the judges in 
 Ingram v. Barnes saw " good reason for not extending the 
 Act beyond its apparent meaning " ; (d) while the inter- 
 pretation put by many judges on the Employers Liability 
 Act, 1880, has been distinctly benignant. 
 
 Engtnefrnot The Ncw South Wales case of Froy v. The Balmain 
 
 engaged in '' 
 
 manual labour. 
 
 (a) Stuart v. Evans, 49 L. T. (N. S.) 138 ; op. Riley «. Warden, 2 Ex. 59 ; 
 and Weaver v. Floyd, 21 L. J. Q. B. 151, holding that to make a man an 
 artificer within the Truck Act it is not enough that he is at liberty to work 
 personally, but that he must be bound to do so. 
 
 (b) Ingram v. Barnes, 7 E. & B. 115 ; in Ex. Ch. 132, was followed in 
 Squire v. Midland Lace Go., 21 T. L. R. 466, where it was held that 
 " lace clippers " are not workmen within s. 10 of the Employers and Work- 
 men Act, 1875, and therefore not within the Truck Act, 1896. See also to 
 the same effect Sleeman v. Barrett, 2 H. & C. 934 : and Sharman v. Sanders 
 22 L. J. 0. P. 86. ' 
 
 (c) See per Lord Campbell, C.J., at 124. 
 
 (d) Per Bramwell, B., 7 E. & B. 139. 
 
Workman 279 
 
 Steam Ferry Co. (a) is ia accordance with the principle Chap. VI. 
 enunciated. An engineer on board a steam ferry boat — - 
 running within Sydney harbour was held not a work- 
 man, because not engaged in manual labour. Martin, 
 C.J., lays stress on the point that though the engineer had 
 to do manual labour in the course of his daily round, yet, as 
 this was not the substantial portion of his employment and 
 no more than ancillary, he is not within the section. But 
 in Isaacson v. New Grand Clapham Junction (6) the County 
 Court judge having ruled that an engineer engaged in 
 looking after electric lighting plant was not a workman, a 
 new trial was granted. 
 
 In a New South Wales case (c) plaintiff, being the owner Lobb ». Amos. 
 of a couple of carts, went, when it suited him, to the brick- 
 kiln of the defendants, and took bricks away to the places 
 on the defendants' works where they were required ; for 
 which he received a specified sum of money. He was not 
 bound to do the work, though, if he thought fit to do it, he 
 was paid. While the plaintiff was loading, the roof of the 
 kiln fell in, and he was injured ; for which injuries he sued 
 under the Act, claiming under the words a "contract of 
 service or a contract personally to execute any work or 
 labour." The Supreme Court held him disentitled to recover, 
 because a contract to be within the words must be a con- 
 tract to personally serve or to serve for some period or to do 
 some particular work. " It seems to me that the contract 
 
 (a) 7 N. S. W. E. (Law) 146. The definition of workman is, so far as 
 this case goes, identical with that in the English Act. In Hanson v. The 
 Australasian Steam Navigation Co., 5 N. S. W. K. (Law) 447, the question 
 was whether a " seaman " was within the then New South Wales Act. 
 The Court held that he was not, because the words " otherwise engaged in 
 manual labour " must he limited to labour of a similar kind to that before 
 enumerated. See now 56 Vict. No. 6 N. S. W. 
 
 ((.) 19 T. L. E. 150. 
 
 (c) Lobb V. Amos, 7 N. S. W. E. (Law) 92. 
 
280 
 
 Employers Liability Act, 1880 
 
 Chap. VI. "lust be for the personal doing of the work by the plaintiff 
 who brings an action of this sort." (a) 
 
 When void. 
 
 Works uuder 
 a contract. 
 
 Infants' Contracts, (b) 
 
 Prima facie an infant is incapable of contracting. To 
 this rule there is "an exception which is based on the 
 desirableness of infants employing themselves in labour, 
 therefore where you get a contract for labour, and you have 
 a remuneration of wages, that contract^ I think,, must be 
 taken to be fvima facie binding upon an infant." (c) If 
 viewed as a whole, the contract is an unfair one, it is void, {d) 
 Thus a contract by a boy of thirteen with a railway company 
 that, in consideration of their carrying him on reduced 
 terms he will surrender all right to any compensation for 
 injury arising through their default, is so prejudicial to the 
 boy as not to be binding on him. (e) While a contract not 
 to sue in respect of injuries arising from accident in con- 
 sideration of advantages obtained from membership of an 
 insurance society, is valid as being for the benefit of the 
 infant. (/) 
 
 " It seems to me that the words ' or works under a con- 
 tract with an employer' were inserted into the section to 
 meet the case of a workman who has not contracted directly 
 with an employer, but has been engaged by an agent of the 
 
 (a) L. c, per Sir James Martin, O.J., 96. 
 (6) Ante, 267. 
 
 (c) Per Pry, L.J., in De Francesco v. Barnum, 45 Ch. D. 430 at 439. 
 
 (d) Corn v. Matthews, [1893] 1 Q. B. 310. In Green v. Thompson, 
 [1899] 2 Q. B. 1, this is explained by Channell, J., at 6: "The true 
 question is whether the particular stipulation oomplauied of is so unfair 
 as to make the entire contract disadvantageous to the infant. You may 
 find in any contract a clause which by itself is not to the advantage of 
 the infant ; but that is not enough : the contract as a whole must be 
 
 (e) Flower v. L. & N.-W. By. Co., [1894] 2 Q. B. 65. 
 {/) Clements v. L. & N.-W. By. Co., [1894] 2 Q. B. 482. 
 
Employer not sui juris 281 
 
 employer to work for the employer — -videlicet by a butty- Chap. VI. 
 man or a ganger — or to meet the case of an apprentice or 
 other similar cases." (a) 
 
 The definition of " employer " is found in sec. 8, (6) and Employer. 
 has already been considered in detail with the collateral 
 law bearing on it. 
 
 At common law the result of finding the employer is, 
 with certain exceptions, (c) to find a person against whom 
 an action cannot successfully be brought. Under the 
 Employers Liability Act, 1880, an action can be brought 
 against no one except the employer. 
 
 But no action will lie against the representatives of a Deceased 
 
 *^ ■'- employer. 
 
 deceased employer for personal injuries sustained by a 
 workman, {d) 
 
 Neither probably could a workman recover against an infant. 
 infant employer. The rule of .the common law is that Knieofthe 
 
 ,,. , common law. 
 
 whenever the substantive ground of an action against an 
 infant is contract, the infant is not liable, even though the 
 contract is averred merely as inducement to a supposed 
 tort. («) Thus, an infant would be liable for any injury 
 directly inflicted by him ; for example, if he were working 
 with another and negligently struck him, the infant would 
 be liable to make compensation for the effects of the blow. 
 
 {a) Per Smith, L.J., Marrow «. Flimby and Broughton Moor Coal and 
 Mre Brick Co., Ltd., [1898] 9 Q. B. 58& at 597. 
 
 (6) Ante, 129. 
 
 (c) As to wUoh see cmte, 19 et seqq. 
 
 (d) GiUett V. Fairbank, 2 T. L. B. 618. Mr. Buegg says (Employers 
 Liability and Workmen's Compensation (Ttb ed.), 133) that it was decided 
 by the Court of Appeal in a case, M'Carthy v. Jacob & Nicholson, and which 
 he does not further identify, that if a plaintiff in an action under the 
 Employers Liability Act die after action commenced but before judgment, 
 the action abates. Any right of action under Lord Campbell's Act is a 
 different action, and must be prosecuted separately. 
 
 (e) Jennings v. BundaU, 8 T. B. 335 ; Burnard v. Haggis, 14 C. B. 
 (N. S.) 45. The decisions are discussed in Walley v. Holt, 35 L. T. (N. S.) 
 631. Sahnond, Law of Torts, 58-60, digests the principles. 
 
282 
 
 Employers LiaHlUy Act, 1880 
 
 Chap. VI. He would not be liable for an injury caused by the negli- 
 gence of those in his service ; for the negligence could not 
 be established except by reason of validating a contract 
 which the infant might treat as void, (a) 
 
 Lunatic. 
 
 Crown. 
 
 A lunatic employer is liable unless he can prove not 
 only his incapacity to make the contract out of which the 
 claim against him arises, but in addition the plaintiff's 
 knowledge of his incapacity. (6) 
 
 A servant of the Crown, acting on behalf of the Crown, 
 is not liable as an employer ; since no action lies against a 
 public servant upon any contract which he makes in that 
 capacity, (c) 
 
 The Crown is not liable as an employer within this 
 definition : 
 
 (1) Because the rights of the Crown are not aEFected 
 
 by an Act in which the Crown is not specially 
 named ; {d) 
 
 (2) Because the Crown is not liable for the torts of its 
 
 servants, (e) 
 
 (a) Cp. Lovell & Ohristmaa «. Beauoliamp, [1894] A. C. 607 ; citing 
 Whittingham v. Hill, Cro. Jao. 494, for the proposition that an infant trader 
 is not liable for goods supplied to carry on a trade with. 
 
 (6) Imperial Loan Co. v. Stone, [1892] 1 Q. B. 599. 
 of Torts, 61. 
 
 See Salmond, Law 
 
 (c) Dunn «. Maodonald, [1897] 1 Q. B. 555. But for exceptions of 
 certain of&cers who are liable to be treated as agents of the Crown, but 
 with a power of contracting as principals, see Graham v. Public Works 
 Commissioners, [1901] 2 K. B. 781, and particularly per PhiUimore, J., at 
 790, also at 791 : " I think that they have a general liability to be sued for 
 the purposes of obtaining a decision, although, of course, no execution can 
 go against them because their property . . . is Crown, property." 
 
 (d) Bao. Abr. Prerog. (E.) 5. The learning on this principle of law is 
 fuUy set forth in Craies on Statutes (4th ed.), 360-366. 
 
 (e) Johnstone u. Sutton, 1 T. B. 493 ; 
 Raleigh v. Gosohen, [1898J 1 Ch. D. 73. 
 
 Buron v. Denman, 2 Ex. 167 ; 
 
Compensation 283 
 
 Government Dockyards Compensation. Chap. VI. 
 
 A system of compensation prevails in the Government Superannuation 
 dockyards by virtue of a Treasury minute, made under the 
 Superannuation Act, 1887 (a) ; sec. 1 of which provides 
 that : — 
 
 (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 specificially 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. 
 
 (2) The Treasury shall forthwith, after the passing of 
 
 this Act, frame a warrant regulating the grant of 
 gratuities and annual allowances under this section, 
 and the warrant so framed shall be laid before 
 Parliament ; 
 
 (3) Provided that a gratuity under this section shall 
 
 not exceed one year's salary of the person injured, 
 and an allowance under this section shall not, 
 together with any superannuation allowance to 
 which he is otherwise entitled, exceed the salary 
 of the person injured, or three hundred pounds a 
 year, whichever is less. 
 
 (a) 50 & 51 Vict. o. 67. See now the Worlsmen's Compensation Act, 
 1906 (6 Edw. VII. c. 58), s. 6. 
 
284 Employers Liability Act, 1880 
 
 Chap. VI. By sec. 2 there is power to grant a retiring allowance 
 to persons removed from office on the ground of " inability 
 to discharge efficiently the duties of the office." 
 
 By sec. 4 of the same Act : 
 
 If a person employed in any public department in a 
 capacity in respect of which a superannuation allowance 
 cannot be granted under the Superannuation Act, 1859, 
 retires or is removed from his employment, and 
 
 (a) The employment is one to which he was required 
 to devote his whole time ; and 
 
 (b) The remuneration for the employment was paid 
 entirely out of the moneys provided by Parlia- 
 ment; and 
 
 (c) He has served in the employment for not less than 
 seven years, if he is removed in consequence of 
 the abolition of his employment or for the pur- 
 pose of facilitating improvements in the organiza- 
 tion of the department, by which economy can be 
 effected, or for not less than fifteen years if his 
 retirement is caused from infirmity of mind or 
 body, permanently incapacitating him from the 
 duties of his employment ; 
 
 the Treasury may, if they think fit, grant to him a com- 
 passionate gratuity not exceeding one pound or one week's 
 pay, whichever is the greater, for each year of his service in 
 his employment. 
 
 Contractor and Employer, (a) 
 
 Contractor and We have incidentally seen that to entitle an injured 
 
 person to recover under the Employers Liability Act, 1880, 
 
 (a) Ante, 267. 
 
 employer. 
 
Contractor and Employer 285 
 
 the relation between him and the person he is suing must Chap. VI. 
 
 be that of a workman and employer, not that of contractor 
 
 and employer, (a) The test by which to determine whether 
 
 the work is done under a contract or whether the employer 
 
 merely hires labour, is to ascertain who has the power of 
 
 controlling the work. The whole circumstances of the 
 
 employment must be looked to, and the real effect must not 
 
 be lost sight of by fixing attention on some special term, 
 
 such as a provision for supervision or dismissal or payment 
 
 in some particular way, which does not go to the root of the 
 
 relation. Thus, where it was attempted to treat a common 
 
 labourer employed for five shillings to clear out a ditch as 
 
 a contractor. Lord Campbell pointed out (6) that " the 
 
 defendant might have said, ' Fill up the hole in the road, 
 
 but not as you are now doing it, lest when a horse goes 
 
 over the place he may be injured,' the labourer would have 
 
 been bound to comply, and so could not be an independent 
 
 contractor, but a servant or workman merely." (c) The law 
 
 as to this was summarized in Martin v, Temperlev, (d^ bv coieridge, j. 
 
 r J '\ / .; i^ Martin v. 
 
 Coleridge, J. : " It is said that a difference arises where the Temperiey. 
 workman is paid so much for doing the whole job. But the 
 defendant might pay either for a given time or a given 
 work ; and the men here were as much under the defendant's 
 control' as a gentleman's coachman is under that of his 
 master." 
 
 The considerations to be given effect to are summed up Bigeiow, Leading 
 
 C^Bes on the 
 
 in an American case (e) cited in "Bigelow's Leading Cases Law of Torts. 
 
 (a) Ante, 11. 
 
 (6) Sadler v. Henlook (1885), 4 E. & B. 570 ; op. Sly v. Edgeley, 6 Bsp. 
 (N. P.) 6, which may be sustained on the ground that the bricklayer was 
 not a contractor but only a servant. Ante, 139. 
 
 (c) See the law as stated by Bramwell, B., to the House of Oommons 
 Committee, on Employers Liability, wnte, 11. 
 
 (d) (1843), 4 Q. B. 298 at 312. 
 
 («) Oufi V. Newark and New York Ey. Co., 6 Vroom (N. J.) 17, 
 
286 
 
 Employers Liability Act, 1880 
 
 Chap. VI. of Torts," (a) pointing out that " the question of liability 
 depended upon the relation of master and servant, incident 
 to which was the power to select the servant, direct him in 
 the performance of his work, and to discharge him when 
 found incompetent ; and also the duty so to control his acts 
 that no injury might be done to third persons." 
 
 Sub-contractor, 
 
 Willes, J., in 
 Murray v, 
 Currie. 
 
 But besides the existence of the relation of employer 
 and workman being requisite to found a liability under the 
 Employers Liability Act, 1880, it is further necessary that 
 the relationship should be direct and not mediate. The 
 interposition of a sub-contractor between the head employer 
 and the workman will oust the application of the Act. 
 Willes, J., says in Murray v. Currie (6) : " I apprehend it to 
 be a clear rule in ascertaining who is liable for the act of a 
 wrongdoer, that you must look to the wrongdoer himself, 
 or to the first person in the ascending line who is the 
 employer and has control over the work. You cannot go 
 further back, and make the employer of that person liable." 
 The facts in the case showed that one Kennedy, a stevedore, 
 was engaged by a shipowner to unload his vessel. " The 
 work of unloading was done by Kennedy under a special 
 contract. He was acting on his own behalf, and did not in any 
 sense stand in the relation of servant to the defendant. He 
 had entire control over the work, and employed such persons 
 as he thought proper to act under him. He had the option of 
 using the services of the crew of the ship, but he was under 
 no obligation to do so. Whether he selected independent 
 labourers or part of the crew, they were all his servants, and 
 their acts were hia acts, and not the acts of the owner." (c) 
 
 (a) At 654. 
 
 (6) L. E. 6 0. P. 24 at 27. 
 
 (c) Per Bovill, C.J., I.e. at 26 ; op. Jones v. Corporation of Liverpool, 
 14 Q. B. D. 890 ; Union Steamship Co., Ltd. v. Claridge, [1894] A. C. 185. 
 The New York case of Slater v. Mersereau, 64 N. Y. 108, is curious and to 
 
Contractor and Sub-contractor 287 
 
 Eolfe, B.'s statement in Reedie v. L. & N.-W. Ey. Chap. VI. 
 Co., (a) of the principle of the immunity of a contractor E„,f,~„ 
 for the wrongful act of the servant of a sub-contractor j^."ii!w"Ey. 
 is that most usually quoted: "The liability of any one,*^°" 
 other than the party actually guilty of any wrongful 
 act, proceeds on the maxim, qui faoit per alium faeit per 
 se. The party employing has the selection of the party 
 employed, and it is reasonable that he who has made 
 choice of an unskilful or careless person to execute his 
 orders, should be responsible for any injury resulting from 
 the want of skill or want of care of the person employed ; but 
 neither the principle of the rule, nor the rule itself, can 
 apply to a case where the party sought to be charged does 
 not stand in the character of employer to the party by 
 whose negligent act the injury has been occasioned." 
 
 " The test, I think," says Lord G-ifford in a Scotch case, (h) summary of the 
 
 ' ^ ' law from 
 
 " always is — had the superior personal control or power over ThPj.BoVouce 
 the acting or mode of acting of the subordinate ? I use the commissioners. 
 expression ' personal control ' because I think that this is 
 always the turning-point in such cases. Was there a control 
 or direction of the person in opposition to a mere right to 
 object to the quality or description of the work done ? " 
 
 The employer is not liable merely because in his contract Test. 
 he reserves the right of dismissing the sub-contractor or his 
 workmen, (c) The question in each case is whether the 
 intermediate person is an independent contractor, so that 
 the persons working under him are removed from the 
 
 the point. An undertaker was sued for damage done to plaintifi by a 
 carriage in a funeral procession he was conducting, which was owned by 
 the driver of it. The driver was held to be a sub-oontraotor. 
 
 (a) i. Ex. 244 at 2S5. But see the exceptions to this : Penny v. 
 Wimbledon Urban Council, [1899] 2 Q. B. 72; Holliday v. National 
 Telephone Co., [1899] 2 Q. B. 393 ; The Snark, [1900] P. 105. Ante, 61. 
 
 (6) Stephen v. Thurso Police Commissioners, 3 B. 535 at 542. 
 (c) Eeedie v. L. & N.-W. Ry. Qo., 4 Ex. 244. 
 
288 
 
 Employers Liability Act, 1880 
 
 Where no 
 relation of 
 master and 
 servant no 
 liability. 
 
 Chap. VI. control of the head contractor, or whether the head con- 
 tractor has directly or indirectly a practical control over 
 the men employed, {a) 
 
 If the superior is not responsible for tKe appointment 
 
 . of the workmen, but is compelled to take them for. the 
 
 work, he is not liable under the Act; for the relation of 
 
 master and servant does not exist between him and them. (6) 
 
 On the other hand, if the superior has any power of 
 selection, though only from a limited number, he would be 
 within the Act. (c) 
 
 If there is any evidence of the head employer exercising 
 practical control, the . determination of whether he does 
 exercise the control or not, where there is a jury, must be 
 submitted to their determination, {d) 
 
 The tendency is very strong to hold that where piece- 
 workers select their men, who then work in a scheme of 
 work, the men so working are in the employment of the 
 head contractor and not the sub-contractor, (e) 
 
 Contract per- 
 Bonally to 
 execute any 
 work. 
 
 Contract of Service. (/) 
 
 "What the exact meaning of the distinction between 
 ' contract of service ' and ' contract personally to execute 
 any work or labour ' may be is not quite easy to see. The 
 words may refer to a ' contract ' to serve, say, for a month, 
 as distinguished from a ' contract ' to execute any work or 
 
 (a) Levering ■;;. St. Katharine's Dock Co., 3 T. L. R. 607. 
 
 (6) Lane v. Cotton, 1 Lord Raym. 646 ; Whitfield v. Lord Le Despencer, 
 2 Cowp. 754 ; Nicholson v. Mouneey, 15 East, 384 ; Foreman v. Mayor of 
 Canterbury, L. R. 6 Q. B. 214, per Blackburn, J., at 218. 
 
 (c) Martin v. Temperley, 4 Q. B. 298. 
 
 (d) Metropolitan Ry. Co. v. Jackson, Sf App. Oas. 193. 
 
 (e) Levering v. St. Katharine's Dock Co., 3 T. L. R. 607; Brown v. 
 Buttorley Coal Co., 2 T. L. R. 159. 
 
 (/) Ante, 267. 
 
Contract of Service 289 
 
 labour, say, to dig a drain. That may or may not be Chap. VI. 
 the distinction." {a) 
 
 " I should say that a contract of service is when a man 
 is employed, say, as farm labourer, for three months or one 
 year, and that the other words, 'contract personally to 
 execute any work or labour,' apply to cases where a man is 
 employed to do any specific work or labour." (S) 
 
 Where the workman's 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 or not in the service of 
 the employer nor engaged in -his work." (c) 
 
 The words " personal representatives," or " legal repre- personal 
 
 . ,1 representative. 
 
 sentatives, or " legal personal representatives, are synony- 
 mous terms, and are prima facie equivalent to the words 
 " executors and administrators " of the person deceased, {d) 
 though if they are used to denote people who are to take 
 beneficially under a settlement or will they will preferably 
 mean next-of-kin, (e) 
 
 In the Statute of Distributions (/) the words " legal under statute 
 
 „ , . ., , of Distributions. 
 
 representatives are used to mean children. 
 
 Here there is a distinction drawn between "legal 
 personal representatives," i.e. executors and administrators, 
 " and any persons entitled in case of death." 
 
 (a) Per Lindley, J., Grainger «, Aynsley, 6 Q. B. D. 182 at 188. 
 (6) Per Lopes, J., I.e. at 189. See Lobb v. Amos, 7 N. S. W. B. (Law) 
 93. Op. Fitzpatricfc v. Evans & Co., [1902] 1 K. B. 505. 
 
 (c) B. 1. AnU, 125. 
 
 (d) Stookdale v. Nicholson, L. R. 4 Eq. 359. Cp. In re Ware, Oumber- 
 lege V. Cumberlege-Ware, 45 Oil. D. 269. 
 
 (e) Briggs v. Upton, L, B. 7 Ch. 376. 
 (/) 22 & 23 Oar. II. o. 10, ss. 6, 7. 
 
 B.E.L. - U 
 
290 
 
 Employers Liability Act, 1880 
 
 Ghap. VI. 
 
 FareDt and 
 cbild. 
 
 If the workman had been killed while entitled to the 
 Under Lord lights of One " not a Workman of nor in the service of the 
 Campbell's Act. employer nor engaged in his work," {a) the right of action 
 would in the first instance vest in " the executor or adminis- 
 trator of the person deceased " under sec. 2 of Lord Camp- 
 bell's Act. (6) Thus it is plain the same meaning is placed 
 on the words here. 
 
 If there be no executor or administrator, or if there 
 be such executor or administrator, and no action is brought 
 within six months from the death out of which the cause 
 of action arises, then an action may be brought by the 
 wife, husband, parent or child of the person whose death 
 fixes the cause of action, (c) 
 
 "Parent," under Lord Campbell's A,Qi,{d) includes 
 father and mother, and grandfather and grandmother, and 
 stepfather and stepmother, and " child " includes son and 
 daughter, and grandson and granddaughter, and stepson 
 and stepdaughter. 
 
 If there is no executor or administrator, as there need 
 not be where there is no estate, the action which enures by 
 reason of the death may be brought by surviving ascendants 
 or descendants to the second degree. Apart from this 
 provision, it would be necessary to take out administration 
 of the deceased's estate before suing. 
 
 The rights of compensation (e) are stated by Bramwell, 
 L.J., (/) as follows : " You must give the plaintiff a com- 
 pensation for his pecuniary loss, you must give him 
 compensation for his pain and bodily suffering ; of course it 
 
 (a) Ante, 125. 
 
 (6) 9 & 10 Viot. c. 93. Ante, 108. 
 
 (c) 27 & 28 Viot. 0. 95, s. 1. 
 
 (d) 9 & 10 Viot. 0. 93, s. 5. Ante, 106. 
 
 (e) Ante, 125. 
 
 (/) Pliillips «. L & S.-W. Ky Co., 5 C. P. D. 280 at 287. See also the 
 sumnung-up of Field, J., 5 Q. B. D. 78. 
 
 Where no 
 
 personal 
 
 repreaentative. 
 
 Compensation. 
 
Bule of Compensation 291 
 
 is almost impossible for you to give to an injured man Chap. VI 
 what can be strictly called a compensation ; but you must Bramweii, l.j., 
 take a reasonable view of the case, and must consider under prinoipieB ot 
 
 ,| , . . compensation. 
 
 all the circumstances what is a fair amount to be awarded to 
 him. I have never known a direction in that form to be 
 questioned. I may take the common case of a labourer 
 receiving an injury, which has kept him out of work for 
 perhaps six months ; his evidence may be that before the 
 time of the accident he was earning 25s. a week, that during 
 twenty-six weeks he had been wholly incapacitated for 
 work, that for ten weeks afterwards he has been able to 
 earn only 10s. a week, and that he will not get into full 
 work again for twenty weeks. The plaintiff will be entitled 
 to 25s. for each of the twenty-six weeks, and to 15s. for 
 each of the ten and twenty weeks. He is also entitled to 
 some amount for his bodily sufferings and for his medical 
 expenses; and in this manner the compensation to be 
 awarded to him is estimated. I have put a case where a 
 definite term may be fixed upon within which the party 
 injured will recover. But suppose a case in which no 
 definite term can be fixed ; in that case the direction to 
 the jury is that they must consider for themselves how 
 long the plaintiff will be incapacitated from earning his 
 livelihood or practising his profession, and that they must 
 take into account the chance of his losing employment, if 
 he had not met with the accident. Nevertheless the funda- 
 mental rule is to give the plaintiff a fair and reasonable 
 compensation for his pecuniary loss." 
 
 The rule as to granting a new trial on the ground of the JJl^^JJifn^^f 
 damages awarded being either inadequate or excessive is exceXe'^ "' 
 thus formulated by Lord Esher, M.R. : {a) "If the Court, ^*""^™- 
 
 (a) Praed v. Graham, 24 Q. B. D. at 55. Johnston v. G. W. Ey. Co., 
 [1901] 2 K. B. 2S0, holds that the rule in Fiaed v. Graham must be 
 
292 
 
 Employers Liability ^cf, 1880 
 
 Chap. VI. having fully considered the whole of the circumstances of 
 the case, come to this conclusion only, we think that the 
 damages are larger than we ourselves should have given, but 
 not so large as that twelve sensible men could not reason- 
 ably have given them ; then they ought not to interfere 
 with the verdict. If, on the other hand, the Court thinks 
 that, having regard to all the circumstances of the case, the 
 damages are so excessive that no twelve men could reason- 
 ably have given them, then they ought to interfere with the 
 verdict." 
 
 Character In Affain and again in our progress we have expressed the 
 
 which person ° ° , . i . i . i i 
 
 may be on position of the Workman as being identical with that oi a 
 
 premlBes of J^ ° 
 
 another. licensee. It may be well to specify more exactly what that 
 
 position is. 
 
 A person on the premises of another may, apart from 
 the Employers Liability Act, 1880, be there — 
 
 onbusineBs. (1) 0^ busiuoss ; whcu he is entitled to expect that, 
 
 provided he uses reasonable care for his own safety, the 
 occupier shall on his part use reasonable care to prevent 
 damage from unusual danger, which he knows or ought to 
 know of (a) 
 
 As a guest. (2) As a gucst ; when he must take the premises as he 
 
 construed in the light of such decisions as Phillips v. L. & S.-W. Ey. Oo., 
 holding that perversity in the jury in awarding damages need not be shown, 
 but only that the jury have taken into consideration matters which ought 
 not to be considered or have applied a wrong measure of damages. 
 
 (a) Indermaui v. Dames, L. B. 1 C. P 274 ; in the Ex. Oh., L. E. 2 
 0. P. 311. In Butts V. Goddard, 4 T. L. E. 193, plaintiff recovered when, 
 calling upon auctioneers and estate agents, she entered by a door which 
 was not the usual entrance, and having reached a folding door, which she 
 pushed open, fell down a flight of steps leading to a cellar. In Mason v. 
 Langford, 4 T. L. E. 407, plaintifi was found by a jury not entitled to 
 recover where, going after business hours to defendant's shop, which was 
 closed though the door was ajar, she pushed the door open, and entering 
 fell down a steep flight of stairs, the cover to which, a trap door, was 
 raised. 
 
Position as licensee 293 
 
 finds them, provided only that there is no concealed danger Chap. VI. 
 known to the occupier against which he is not warned, (a) 
 
 (3) As a mere licensee ; (b) when the licensor is not as a mere 
 
 licensee. 
 
 responsible for damage resulting from the dangers arising 
 from the existing condition of the premises, unless he knew 
 of them at the time of giving the licence and omitted to 
 caution the licensee. " There must be something like fraud 
 on the part of the giver before he can be made 
 answerable." (e) 
 
 (4) As a servant ; when the master is not liable for the as servant. 
 dangerous condition of premises till the servant has both 
 shown the knowledge of the master and his own want of 
 knowledge of the conditions which have caused the 
 accident, (d) 
 
 The effect of the Act seems to be to raise the workman 
 from the fourth of the classes just enumerated, and to place 
 him in the position of those in the first. He is to be 
 regarded as one invited upon premises for the common 
 purpose of himself and the occupier, (e) 
 
 The meaning of these words is thus explained by gj^en, l.j., in 
 
 o r J Thomas «. 
 
 Bowen, L.J., in Thomas v. Quartermaine : (/) "Does this '5"a''t«'-'"'>'°«- 
 language do more than remove such fetters on a workman's 
 right to sue as had previously been held to arise out of the 
 relation of master and workman? The express words of 
 
 (a) Southoote v. Stanley, 1 H. & N. 2i7 ; op. Chapman v. Eothwell 
 E. B. & E. 168 ; and OoUis v. Selden, L. B. 3 0. P. 495. 
 
 (6) In Holmes v. N.-E. Ey. Co., L. B. 4 Ex. 254 at 258, Channell, B., 
 Bays : " In one sense the plaintiff was a licensee, but he was not a mere 
 licensee, and the word mere has a very qualifying operation." 
 
 (c) Gautret v. Egerton, L. B. 2 0. P. 371, per Willes, J., at 375. See 
 also Keeble v. Bast and West India Docks, 5 T. L. B. 112. 
 
 {d) Griffiths v. London and St. Katharine Docks Co., 13 Q. B. D. 259. 
 See Weblin v. Ballard, 17 Q. B. D. 122, per A. L. Smith, J., at 124. 
 
 (e) " The statute was intended to place the workman in the same 
 position as a stranger lawfully on the property by the invitation of the 
 occupier, but in no higher or better position : " per Fry, L.J., Thomas v. 
 Quartermaine, 18 Q. B. D. 685 at 703. 
 
 (/) 18 Q. B. D. 685 at 692. 
 
294 Employers LiaMlity Act, 1880 
 
 Chap. VI. tlie section seem to permit of only one answer to this 
 inquiry. An enactment which distinctly declares that the 
 workman is to have the same rights as if he were not a 
 workman, cannot, except by yiolent distension of its terms, 
 be strained into an enactment that the workman is to have 
 the same rights as if he were not a workman and other 
 rights in addition. It cannot in the case of a defect in the 
 employer's works be distorted into the meaning that a new 
 standard of duty is to be imposed on the employer as 
 regards a workman, which would not exist as regards any- 
 body else. If the language of the section were not even so 
 precise, the point would be concluded, one might well think, 
 by the observation that if the Act had intended to prescribe 
 some new measure of duty the least one might expect 
 would be that it should define it. What sort of duty could 
 that be which does not exist at law, and which is not 
 defined by Statute ? It would be a duty that had no limits 
 except the benevolence of a jury exercised at the expense 
 of the pockets of other people." (a) 
 
 Workmen may Under the Employers Liability Act, 1880, an express 
 
 contract them- i • i i i 
 
 selves ont of coutract by which the workman engages to forego the 
 
 the Act. 
 
 benefits of the Act in the event of injury is valid ; (&) since 
 
 (a) See Weblin v. BaUard, 17 Q. B. D. 122, per A. L. Smith, J., at 124. 
 
 (6) Griffiths v. Earl of Dudley, 9 Q. B. D. 357. The provisions of the 
 Truck Act, 1831 (1 & 2 WiU. IV. c. 37), are not applicable to the agreement 
 ia Griffiths v. Earl of Dudley. In Owner v. Hooper, 19 T. L. R. 601, 
 a master in paying his workmen handed each a slip of paper on which 
 was written a sum of money equal to 2d. in the pound on the amount 
 of wages, which sum the workmen handed to the master, and which was 
 applied to provide for insurance premiums paid by the master to cover his 
 own liability under the Workmen's Compensation Act, 1897. This was 
 held not to be a payment of wages within s. 3 of the Truck Act, 1831. 
 Assuming they are, see Hewlett v. Allen, [1892] 2 Q. B. 662, affirmed in 
 H. L., [1894J A. 0. 383 ; also Chawner v. Oummings, 8 Q. B. 311 ; Archer v. 
 James, 2 B. &. S. 61, where the Ex. Oh. were equally divided. 
 
 The rule of law as to contracting out of a liability imposed by statute 
 has been the subject of so much discussion that it may be well to summarize 
 the authorities. The maxim of law is Quwis renuncia/re potest jwri pro se 
 introducto : BoviU v. Wood, 2 M. & S., per Bayley, J., 25 ; or as it appears 
 
Contracting out 295 
 
 sec. 1 of the Act only negatives the implication of an Chap. VI. 
 agreement by the workman to bear the risks of the 
 
 in Cod. 2, 3, 29 : Ommes Ucentiam habere, his, guce pro se mtroducta sunt, 
 rermntiare. Op. Wilson v. Mcintosh, [1894] A. 0. 133 ; 4 Bl. Oomm. 817 • 
 G. E. By. Go. v. Goldsmid, 9 App. Oas., per- Lord Selborne, C, 986, where 
 the form is, Xlrvusqmsgue potest rermnoiare juri pro se mtroducto • and 
 Enohin v. Wylie, 10 H. L. 0., per Lord Westbury, C, 15, where the form 
 is, Gui^ue competit renunciare juri pro se introducto. 
 
 In Eowbotham v. Wilson, 8 E. & B. 151, Martin, B., says : " I cannot 
 perceive any reason, either at law or otherwise, why parties should not be 
 at liberty, by apt words, either to add to, or qualify, or make more or less 
 extensive, the right which the law of itself provides and imposes, or, if they 
 think fit, declare that such rights shaU. not exist at aU. QuiUbet potest 
 renunciare juri pro se iniroducto." Again, in Rumsey v. N. E. Ky. Co., 14 
 0. B. (N. S.), Erie, C.J., 649, says : " It is undoubtedly competent to any 
 man to renounce a privilege which is given to him by a statute." Lord 
 Westbury, C, draws attention to the words pro se in the maxim, which he 
 says have been introduced to show that " no man can renounce a right 
 which his duty to the public, which the claims of society, forbid the 
 renunciation of " : Hunt v. Hunt, 31 L. J. Ch. 175. See also Markham v. 
 Stanford, 14 C. B. N. S., per Byles, J., 383 ; Morten v. Marshall, 2 H. & C. 
 805. The maxim as to this, Pactis privatorum publico jv/ri derogwri negmt : 
 Swan V. Blair, 3 CI. & P. 621, or, as it elsewhere appears, non derogal/wr. 
 
 In Printing and Numerical Registering Co. v. Sampson, L. R. 19 Eq. 
 465, Jessel, M.R., says : " It must not be forgotten that you are not 
 to extend arbitrarily those rules which say that a given contract is void as 
 being against public policy, because if there is one thing which more than 
 another public policy requires it is that men of full age and competent 
 understanding shall have the utmost liberty of contracting, and that their 
 contracts, when entered into freely and voluntarily, shall be held sacred, 
 and shall be enforced by courts of justice." This passage is cited and 
 approved by Fry, L.J., RousUlon v. EousDlon, 14 Ch. D. 365, and by Ghitty, 
 J., TuUis V. Jacson, [1892] 3 Ch. 445. Holmes, The Common Law, 205. 
 See also WaUis v. Smith, 21 Ch. D., per Jessel, M.R., 266. As to the 
 argument of " public policy," Burrough, J., says, Richardson v. MeUish, 2 
 Bing. 252 : " I, for one, protest, as my Lord has done, against arguing too 
 strongly upon public policy ; it is a very unruly horse, and when once you 
 get astride it you never know where it will carry you. It may lead you 
 &om the sound law. It is never argued at all but when other points fail." 
 Even more forcible are the words of Mr. Pierpoint arguendo, the passage is 
 too long to extract, in The King v. Hampden, 3 How. St. Tr. 1293 ; see 
 also Lord Mansfield, C.J., Wilkes's case, 19 How. St. Tr. 1112. 
 
 " Public policy," as a ground of legal decision, is exhaustively treated 
 in the leading case of Egerton v. Earl Brownlow, 4 H. 0. L. 1. Pollock, 
 O.B., in advising the Lords, summarises the oases as establishing the 
 distinction, " that where a contract is directly opposed to public welfare it 
 is void, though the parties may have a real interest in the matter, and an 
 apparent right to deal with it." See also per Bowen, L.J., in Maxim 
 Nordenfelt, etc., Co. v. Nordenfelt, [1893] 1 Ch. 665, affirmed in H. L., 
 [1894] A. C. 535 ; and per Lord Halsbury, C, Janson v. Driefontein Con- 
 solidated Mines, [1902] A. C. 491, citing Marshall, Marine Insurance. In 
 re Mtzgerald, [1904] 1 Ch. 573. 
 
 Inmto beneficium non datur D. 50, 17, 69 ; and Pacta guce contra leges 
 constituHonesque vel contra bonos mores fiunt nullam vim habere, indubitati 
 juris est. Cod. 2, 3, 6, are the maxims of the Roman law. 
 
296 Employers Liability Act, 1880 
 
 Chap. VI. employment, but does not forbid the constitution of an 
 express agreement. 
 
 Expiration of The Employers Liability Act, 1880, which would haye 
 
 bI16 .A.CGa 
 
 expired at the end of the session in 1888, was continued by 
 51 & 52 Vict. c. 58, until December 31, 1889, and has since 
 been continued annually by the Expiring Laws Continuance 
 Act. 
 
 END OF PART II 
 
PAET III 
 
 WORKMEN'S COMPENSATION 
 ACT, 1906 
 
WORKMEN'S COMPENSATION ACT, 1906. 
 (6 Edw. VII. c. 58.) 
 
 An Act to consolidate and amend the Law with respect to a.d^o6. 
 Compensation to Workmen for Injuries suffered in the 
 course of their Employment. [21st December 1906.] 
 
 Be it enacted by the King's most Excellent Majesty, by 
 and with the advice and consent of the Lords Spiritual and 
 Temporal, and Commons, in this present Parliament 
 assembled, and by the authority of the same, as follows : — 
 
 1.— (1) If in any employment (a) personal injury (6) by ^i'^i^J^f^ °J„ 
 accident (c) arising out of and in the course of the employ- i™urteB™ ^°'^ 
 ment (d) is caused to a workman, (e) his employer (/) shall, 
 subject as herein-after mentioned, be liable to pay compensa- 
 tion in accordance with the First Schedule to this Act. (g) 
 
 (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: (h) 
 
 (&) 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 
 
 (a) Post, 369. (6) Ante, 49 et seq^q,. (c) Post, 346. 
 
 (d) See per BuoMey, LJ., Fitzgerald v. W. G. Clarke & Son, [1908] 
 2 K. B. 796 at 799. Post, 369. 
 
 {e)Post,Ul. (f) Post, in. {g) Post, 325. (h) Post, B91. 
 
 B.E.L. ^ 2 
 
300 Worlcmen's Compensation Act, 1906 
 
 A.D. 1906. is responsible, (a) nothing in this Act shall affect 
 
 any civil liability of the employer, (6) but in that 
 case the workman may, at his option, (c) either 
 claim compensation under this Act or take 
 proceedings independently of this Act ; {d) but 
 the employer shall not be liable to pay compen- 
 sation for injury to a workman by accident arising 
 out of and in the course of the employment both 
 independently of and also under this Act, (e) and 
 shall not be liable to any proceedings in- 
 dependently of this Act, except in case of such 
 personal negligence or wilful act as aforesaid : (/) 
 
 (e) If it is proved that the injury to a workman is 
 attributable to the serious and wilful misconduct 
 {g) of that workman, any compensation claimed in 
 respect of that injury shall, unless the injury 
 results in death or serious and permanent dis- 
 ablement, (Jb) be disallowed. 
 
 (3) If any question arises in any proceedings under this 
 Act as to the liability to pay compensation (i) under this 
 Act (including any question as to whether the person 
 injured is a workman to whom this Act applies), (k) or as 
 to the amount or duration of compensation under this Act, 
 {I) the question, if not settled by agreement, shall, subject 
 to the provisions of the First Schedule to this Act, (m) be 
 settled by arbitration, in accordance with the Second 
 Schedule to this Act. (w) 
 
 (4) If, within the time herein-after in this Act limited 
 for taking proceedings, (o) an action is brought to recover 
 
 [a) Ante, 5, 20. (6) Ante, i. (c) Post, 416. (d) Post, 426. 
 
 (e) Post, 412. (/) Ante, 5, 20. (g) Ante, 394. {h) Post, 345, 394. 
 
 (i) Post, 596, 600. (k) Post, 443. (Z) Post, 515. (m) Post, 326, 
 
 (n) Post, 335, 595. (o) Post, 596. 
 
Workmen's Compensation Act, 1906 301 
 
 damages iadependeatly of this Act for injury caused by a.d. i906. 
 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 compen- 
 sation 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 compensa- 
 tion, 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 proceeding under 
 this Act. (a) In any proceeding under this subsection, 
 when the court assesses the compensation it shall give a 
 certificate of the compensation it has awarded and the 
 directions it has given as to the deduction for costs, and 
 such certificate shall have the force and effect of an award 
 under this Act. (6) 
 
 (5) Nothing in this Act shall affect any proceeding for 
 a fine under the enactments relating to mines, factories, or 
 workshops, or the application of any such fine, (c) 
 
 2. — (1) Proceedings (d) for the recovery under this Act Time for taking 
 
 proceedings, 
 
 of compensation (e) for an injury shall not be maintainable 
 
 unless notice of the accident (/) has been given as soon 
 
 as practicable after the happening thereof and before the 
 
 workman has voluntarily left the employment in which he 
 
 was injured, and unless the claim for compensation (g) with 
 
 respect to such accident has been made within six months (h) 
 
 from the occurrence of the accident causing the injury, or, in 
 
 case of death, within six months from the time of death : 
 
 Provided always that — 
 
 (a) the want of or any defect or inaccuracy in such 
 
 notice shall not be a bar to the maintenance of 
 
 (a) Post, 416. (b) Post, 653. (c) Post, 427. (d) Post, 596. 
 
 (e) Post, 668. (/) Post, 600. (g) Post, 599, 607. (h) Post, 613. 
 
302 Workmen's Compensation Act, 1906 
 
 ■i-D. 1906. 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 defence by the want, defect, or 
 inaccuracy, or that such want, defect, or inac- 
 curacy was occasioned by mistake, absence from 
 the United Kingdom, or other reasonable cause ; 
 and 
 
 (6) the failure to make a claim within the period 
 above specified shall not be a bar to the main- 
 tenance of such proceedings if it is found that 
 the failure was occasioned by mistake, absence 
 from the United Kingdom, or other reasonable 
 cause, (a) 
 
 (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, (b) 
 
 (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, (c) 
 
 (4) Where the employer is a body of persons, corporate 
 or unincorporate, the notice may also be served by deliver- 
 ing the same at, or by sending it by post in a registered 
 letter addressed to, the employer at the oflSce, or, if there 
 be more than one office, any one of the offices of such 
 body, (d) 
 
 (a) Post, 605. (6) Post, 600. (c) Ante, 262. (d) Post, 601. 
 
Workmen's Compensation Act, 1906 303 
 
 3. — (1) If the Eegistrar of Friendly Societies, after a.d. i906. 
 taking steps to ascertain tlie views of the employer and contracting out. 
 workmen, certifies that any scheme of compensation, 
 benefit, or insurance for the workmen of an employer in 
 any employment, whether or not such scheme includes 
 other employers and their workmen, provides scales of 
 compensation not less favourable to the workmen and 
 their dependants than the corresponding scales contained 
 in this Act, (a) and that, where the scheme provides for 
 contributions by the workmen, the scheme confers benefits 
 at least equivalent to those contributions, in addition to 
 the benefits to which the workmen would have been 
 entitled under this Act, (6) 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, (c) and 
 thereupon the employer shall be liable only in accordance 
 with the scheme, but, save as aforesaid, this Act shall apply 
 notwithstanding any contract to the contrary made after 
 the commencement of this Act. (d) 
 
 (2) The Registrar 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, (e) 
 
 (3) No scheme shall be so certified which contains an 
 obligation upon the workmen to join the scheme as a 
 condition of their hiring, or which does not contain 
 
 (a) Post, 428. (6) Post, 430. (c) Post, 427. 
 
 (i) Post, 428. (e) Post, 432. 
 
304 Workmen's Compensation Act, 1906 
 
 A.D. 1906. provisions enabling a workman to withdraw from the 
 scheme, (a) 
 
 (4) If complaint is made to the Eegistrar of Friendly 
 Societies by or on behalf of the workmen of any employer 
 that the benefits conferred by any scheme no longer con- 
 form to the conditions stated in subsection (1) of this 
 section, or that the provisions of such scheme are being 
 violated, or that the scheme is not being fairly administered, 
 or that satisfactory reasons exist for revoking the certificate, 
 the Eegistrar shall examine into the complaint, and, if 
 satisfied that good cause exist for such complaint, shall, 
 unless the cause of complaint is removed, revoke the 
 certificate. (6) 
 
 (5) When a certificate is revoked or expires, any moneys 
 or securities held for the purpose of the scheme shall, after 
 due provision has been made to discharge the liabilities 
 already accrued, be distributed as may be arranged between 
 the employer and workmen, or as may be determined by 
 the Eegistrar of Friendly Societies in the event of a 
 difference of opinion, (c) 
 
 (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, (d) 
 
 (7) The Chief Eegistrar of Friendly Societies shall 
 include in his annual report the particulars of the pro- 
 ceedings of the Eegistrar under this Act. 
 
 (8) The Chief Eegistrar of Friendly Societies may 
 
 (a) Fast, 430. (6) Post, 430. (c) Post, -481. {d) Post, 428. 
 
Workmen's Compensation Act, 1906 305 
 
 make regulations for the purpose of carrying this section a.d. isoe. 
 into effect, (a) 
 
 4. — (1) Where any person (in this section referred to sub-oontraoting. 
 as the principal), in the course of or for the purposes of 
 his trade or business, (6) 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, (c) the 
 principal shall be liable to pay to any workman employed 
 in the execution of the work any compensation under this 
 Act which he would have been liable to pay if that 
 workman had been immediately employed by him; and 
 where compensation is claimed from or proceedings are 
 taken against the principal, then, in the application of this 
 Act, references to the principal shall be substituted for 
 references to the employer, except that the amount of 
 compensation shall be calculated with reference to the 
 earnings of the workman under the employer by whom he 
 is immediately employed : 
 
 Provided that, where the contract relates to threshing, 
 ploughing, or other agricultural work, and the contractor 
 provides and uses machinery driven by mechanical power 
 for the purpose of such work, he and he alone shall be 
 liable under this Act to pay compensation to any workman 
 employed by him on such work, (d) 
 
 (2) Where the principal is liable to pay compensation 
 under this section, he shall be entitled to be indemnified 
 by any person who would have been liable to pay com- 
 pensation to the workman independently of this section, 
 and all questions as to the right to and amount of any such 
 
 (a) Post, 428. (6) Post, 469. (c) Post, 484. (d) Post, 510. 
 
306 Workmen's Compensation Act, 1906 
 
 A.D. 1906. indemnity shall in default of agreement be settled by 
 arbitration under this Act. (a) 
 
 (3) Nothing in this section shall be construed as 
 preventing a workman recovering compensation under this 
 Act from the contractor instead of the principal, (b) 
 
 (4) This section shall not apply in any case where the 
 accident occurred elsewhere than on, or in, or about 
 premises on which the principal has undertaken to execute 
 the work or which are otherwise under his control or 
 management, (e) 
 
 cm/bo? bank" 5' — ^^^ Where any employer has entered into a con- 
 
 empi^yer. 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 arrange- 
 ment 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 anything 
 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, {d) so however 
 that the insurers shall not be under any greater liability to 
 the workman than they would have been under to the 
 employer, (e) 
 
 (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. (/) 
 
 (a) Post, 512. (6) Post, 514. (c) Post, 495, 510. (d) Post, 681. 
 (e) Post, 582. (/) Post, 584. 
 
Workmen's Compensation Act, 1906 307 
 
 (3) There shall be included among the debts which a.d. i906. 
 under section one of the Preferential Payments in Bank- 5i&52Vict. 
 
 c, 62. 
 
 ruptcy Act, 1888, and section four of the Preferential jj & 53 vict. 
 
 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 Avherefor 
 
 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 Amend- ^"^^ » ^''='- 
 
 ment Act, 1897, shall have effect accordingly. Where 
 
 the compensation is a weekly payment, the amount due in 
 
 respect thereof shall, for the purposes of this provision, 
 
 be taken to be the amount of the lump sum for which 
 
 the weekly payment could, if redeemable, be redeemed if 
 
 the employer made an application for that purpose under 
 
 the First Schedule to this Act. (a) 
 
 (4) In the case of the winding up of a company within 5o&5ivict. 
 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 section nine of that Act, 
 and that section shall have effect accordingly. (&) 
 
 (5) The provisions of this section with respect to 
 preferences and priorities shall not apply where the 
 bankrupt or the company being wound up has entered into 
 such a contract with insurers as aforesaid, (e) 
 
 (6) This section shall not apply where a company is 
 wound up voluntarily merely for the purposes of recon- 
 struction or of amalgamation with another company, (i) 
 
 (a) Post, 584. (6) Post, 585. (c) Post, 585. [d) Post, 584. 
 
308 Worhneri's Compensation Act, 1906 
 
 A.D. 1906. 6- Where the injury for which compensation is payable 
 
 EemedieBboth Under this Act was caused under circumstances creating 
 
 against employer iii.i.i.,n. i i -i i 
 
 and stranger, a legal liaDUity(a) m some person other than the employer 
 to pay damages in respect thereof (J) — 
 
 (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 ; (c) and 
 
 (2) If the workman has recovered compensation under 
 
 this Act, the person by whom the compensation 
 was paid (and any person who has been called 
 on to pay an indemnity under the section of this 
 Act relating to sub-contracting) shall be entitled 
 to be indemnified by the person so liable to pay 
 damages as aforesaid, and all questions as to the 
 right to and amount of any such indemnity shall, 
 in default of agreement, be settled by action, or, 
 by consent of the parties, by arbitration under 
 this Act. (d) 
 
 Application of 7- — (1) TMs Act shall apply to masters, seamen, and 
 
 apprentices to the sea service and apprentices in the sea- 
 fishing service, (e) provided that such persons 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 modifi- 
 cations — 
 
 (a) Page v. Burtwell, [1908] 2 K. B. 758. (6) Post, 373, 380. 
 
 (c) Post, 688. (d) Post, 691. (e) Posf, 450, 593. (/) Post, 451. 
 
Workmen's Compensation *Act, 1906 309 
 
 (a) The notice of accident and the claim for compensa- a.d. isoe. 
 tion may, except where the person injured is the 
 master, be served on the master of the ship as if 
 he were the employer, but where the accident 
 happened and the incapacity commenced on board 
 the ship it shall not be necessary to give any 
 notice of the accident : (a) 
 
 Q)) In the case of the death of the master, seaman, or 
 apprentice, the claim for compensation shall be 
 made within six months after news of the death 
 has been received by the claimant : (b) 
 
 (c) Where an injured master, seaman, or apprentice is 
 discharged or left behind in a British possession 
 or in a foreign country, depositions respecting 
 the cirxjumstances and nature of the injury may 
 be taken by any judge or magistrate in the 
 British possession, and by any British consular 
 officer in the foreign country, and if so taken 
 shall be transmitted by the person by whom they 
 are taken to the Board of Trade, and such 
 depositions or certified copies thereof shall in 
 any proceedings for enforcing the claim be 
 admissible in evidence as provided by sections 
 six hundred and ninety-one and six hundred and 
 ninety-five of the Merchant Shipping Act, 1894, s? & as vut. 
 and those sections shall apply accordingly : (e) 
 
 {d) In the case of the death of a master, seaman, or 
 apprentice, leaving no dependants, no compensa- 
 tion shall be payable, if the owner of the ship 
 is under the Merchant Shipping Act, 1894, liable 
 to pay the expenses of the burial : {d) 
 
 {a) Post, 607. (6) Post, 618. (c) Post, 454. (d) Post, 593. 
 
310 WorkmeTiis Compensation Act, 1906 
 
 A.D,i906. (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 : (a) 
 
 (/) 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 five 
 hundred and three of the Merchant Shipping 
 Act, 1894 (which relates to the limitation of a 
 shipowner'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 : (S) 
 
 ' (ff) Subsections (2) and (3) of section one hundred and 
 
 seventy-four of the Merchant Shipping Act, 1894 
 (which relates to the recovery of wages of seamen 
 lost with their ship), shall apply as respects pro- 
 ceedings for the recovery of compensation by 
 dependants of masters, seamen, and apprentices 
 lost with their ship as they apply with respect 
 to proceedings for the recovery of wages due to 
 seamen and apprentices ; and proceedings for the 
 recovery of compensation shall in such a case be 
 maintainable if the claim is made within eighteen 
 
 (a) Post, 593. (6) Post, 593. 
 
Worhmen's Compensation Act, 1906 311 
 
 months of the date at which the ship is deemed a.d. i906. 
 to have been lost with all hands : {a) 
 
 (2) This Act shall not apply to such members of the crew 
 of a fishing vessel as are remunerated by shares in the profits 
 or the gross earnings of the working of such vessel, (h) 
 
 (3) This section shall extend to pilots to whom Part X. 
 of the Merchant Shipping Act, 1894, applies, as if a pilot 
 when employed on any such ship as aforesaid were a seaman 
 and a member of the crew, (e) 
 
 8-— (1) Where— 
 
 Application of 
 
 (i) the certifying surgeon appointed under the Factory tiSase"*™'"*' 
 and Workshop Act, 1901, (cZ) for the district in ^^^'^H'^-^^- 
 which a workman is employed certifies that the 
 workman is suffering from a disease mentioned in 
 the Third Schedule (e) 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 Work- 
 shop Act, 1901, suspended from his usual 
 employment on account of having contracted any 
 such disease {g) ; or 
 
 (iii) the death of a workman is caused by any such 
 disease ; (A) 
 
 and the disease is due to the nature of any employment {i) 
 in which the workman was employed at any time within the 
 twelve months {k) previous to the date of the disablement 
 or suspension, (I) whether under one or more employers, he 
 
 (a) Post, 618. (6) Post, 452. (c) Post, 453. 
 
 (d) 1 Edw. VII. c. 22, ss. 122-124. (e) Post, 342. (/) Post, 364. 
 
 (?) Post, 366. (h) Post, 357. (i) Post, 356. 
 
 (fe) Post, 368, (I) Post, 364. 
 
312 Workmen's Compensation Act, 1906 
 
 A.D. 1908. or his dependants shall be entitled to compensation under 
 this Act (a) as if the disease or such suspension as aforesaid 
 were a personal injury by accident (6) arising out of and in 
 the course of that employment, subject to the following 
 modifications : — 
 
 (a) The disablement or suspension shall be treated as 
 
 the happening of the accident ; (e) 
 (h) If it is proved that the workman has at the time of 
 entering the employment wilfully and falsely 
 represented himself in writing {d) as not having 
 previously suffered from the disease, compensation 
 shall not be payable ; 
 (c) The compensation shall be recoverable from the 
 employer who last employed the workman during 
 the last twelve months in the employment to the 
 nature of which the disease was due : (e) 
 
 Provided that — 
 
 (i) the workman or his dependants if so 
 required shall furnish that employer with 
 such information as to the names and 
 addresses of all the other employers who 
 employed him in the employment during 
 the said twelve months as he or they may 
 possess, (/) and, if such information is not 
 furnished, or is not sufficient to enable that 
 employer to take proceedings under the 
 next following proviso, that employer upon 
 proving that the disease was not contracted 
 whilst the workmen was in his employment 
 shall not be liable to pay compensation ; (g) 
 and 
 
 (a) Ante, 299. (b) Post, 346. (c) Post, 357. (d) Post, 357. 
 (e) Post, 368. (/) Post, 358. (?) Post, 859. 
 
Workmen's Compensation Act, 1906 313 
 
 (ii) if that employer alleges that the a.d. 1906. 
 disease was- in fact contracted whilst the 
 workman was in the employment of some 
 other employer, (a) and not whilst in his 
 employment, he may join such other em- 
 ployer as a party to the arbitration, (6) and 
 if the allegation is proved that other 
 employer shall be the employer from 
 whom the compensation is to be recover- 
 able ; (c) and 
 
 (iii) if the disease is of such a nature as 
 to be contracted by a gradual process, (d) 
 any other employers who during the said 
 twelve months (e) 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 com- 
 pensation is recoverable such contributions 
 as, in default of agreement, may be deter- 
 mined in the arbitration under this Act for 
 settling the amount of the compensa- 
 tion ; (g) 
 
 (d) The amount of the compensation shall be calcu- 
 lated with reference to the earnings of the work- 
 man under the employer from whom the compen- 
 sation is recoverable ; (h) 
 
 (e) The employer to whom notice of the death, disable- 
 
 ment, 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 
 
 (o) Poit, 359. (6) Post, 359. (c) Post, 360. (d) Post, 360, 363. 
 
 {e) Post, 360. (/) Post, 361. (g) Post, 360, 363. (h) Post, 363. 
 B.E.L. Y 
 
3l4 Workmen's Covipensatioil Act, 1906 
 
 A-D. 1906. nature of which the disease was due, (a) and the 
 
 notice may be given notwithstanding that the 
 workman has voluntarily left his employment. (6) 
 
 (/) 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 dis- 
 ablement 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, (c) 
 
 (2) If the workman at or immediately before the date 
 of the disablement or suspension was employed in any 
 process mentioned in the second column of the Third 
 Schedule to this Act, {d) and the disease contracted is the 
 disease in the first column of .that Schedule set opposite 
 the description of the process, (e) the disease, except where 
 the certifying surgeon certifies that in his opinion the 
 disease was not due to the nature of the employment, 
 shall be deemed to have been due to the nature of that 
 employment, unless the employer proves the contrary. (/) 
 
 (3) The Secretary of State may make rules regulating 
 the duties and fees of certifying' and other surgeons 
 (including dentists) under this section, {g) 
 
 (4) For the purposes of this section the date of dis- 
 ablement (/i) shall be such date as the certifying surgeon 
 certifies as the date on which the disablement commenced, 
 or, if he is unable to certify such a date, the date on which 
 the certificate is given : Provided that — 
 
 i (a) Post, 363. (6) Post, 363. (c) Post, 364. {d) Post, 342. 
 
 (c) Post, 842. (/) Post, 364, 366, 368. {g) Post, 852. (h) Post, 366. 
 
Workmen's Compensation Act, 1906 315 
 
 (a) Where the medical referee allows an appeal against a.d. igoe. 
 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 : (a) 
 
 (6) Where a workman dies without having obtained a 
 certificate of disablement, or is at the time of 
 death not in receipt of a weekly payment on 
 account of disablement, it shall be the date of 
 death, (b) 
 
 (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 accord- 
 ingly, (e) 
 
 (6) The Secretary of State may make orders for ex- 
 tending 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, (d) 
 
 (7) Where, after inquiry held on the application of 
 any employers or workmen engaged in any industry to 
 which this section applies, it appears that a mutual trade 
 insurance company or society for insuring against the risks 
 under this section has been established for the industry, 
 and that a majority of the employers engaged in that 
 industry are insured against such risks in the company 
 or society and that the company or society consents, the 
 Secretary of State may, by Provisional Order, require all 
 
 {a) Post, 366. (6) Post, 366. (c) Post, 852. (d) Post, 850. 
 
316 Workmen's Compensation Act, 1906 
 
 A.D. 1906. 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 em- 
 ployers in that locality or of that class, as a separate 
 industry, (a) 
 
 (8) A Provisional Order made under this section shall 
 be of no force whatever unless and until it is confirmed 
 by Parliament, and if, while the Bill confirming any such 
 Order is pending in either House of Parliament, a petition 
 is presented against the Order, the Bill may be referred 
 to a Select Committee, and the petitioner shall be allowed 
 to appear and oppose as in the case of Private Bills, and 
 any Act confirming any Provisional Order under this 
 section may be repealed, altered, or amended by a Pro- 
 visional Order made and confirmed in like manner. (6) 
 
 (9) Any expenses incurred by the Secretary of State 
 in respect of any such Order, Provisional Order, or con- 
 firming Bill shall be defrayed out .of moneys provided by 
 Parliament, (c) 
 
 (10) Nothing in this section shall affect the rights of 
 a workman to recover compensation in respect 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. {d} 
 
 Application to 9- — (1) This Act shall not appljC to persons in the naval 
 
 employment of or military service of the Crown, but l otherwise shall apply. 
 
 to workmen employed by or under the Crown to whom 
 
 (a) Post, 368. (6) Post, 368. (c) Post, 368. (d) Post, 368. 
 
Workmen's Oompensation Act, 1906 317 
 
 this Act would apply if the employer were a private a.d. 1906. 
 person : (a) 
 
 Provided that in the case of a person employed in the 
 private service of the Crown, the head of that department 
 of the Koyal Household in which he was employed at 
 the time of the accident shall be deemed to be his 
 employer. (&) 
 
 (2) The Treasury may, by warrant laid before Parlia- 
 ment, modify for the purposes of this Act their warrant 
 made under section one of the Superannuation Act, 1887, 5o&5ivict. 
 and notwithstanding anything in that Act, or any such 
 warrant, may frame schemes with a view to their being 
 certified by the Registrar of Friendly Societies under this 
 Act. (c) 
 
 10, — (1) The Secretary of State may appoint such Appointment 
 
 and remunera- 
 
 leffally qualified medical practitioners to be medical «»■">' "'6'5,'<=»i 
 
 o J ^ ■ r referees and 
 
 referees for the purposes of this Act as he may, with the •"■w™*""- 
 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, (d) 
 
 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, (e) 
 
 (2) The remuneration of an arbitrator appointed by a 
 judge of county courts under the Second Schedule to this 
 Act shall be paid out of moneys provided by Parliament in 
 accordance with regulations made by the Treasury. (/) 
 
 (a) Post, 437, 479. (6) Post, 437. (c) Post, 437. (d) Post, 676. 
 («) Post, 676. (/) Post, 681. 
 
318 Workmen'^ Compensation Act, 1906 
 
 A.D.,i906. 11. — (1) If it is alleged that the owners of any ship are 
 
 Detention of 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 compensa- 
 tion, 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, (a) 
 
 (2) In any legal proceeding to recover such compensa- 
 tion, 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, (b) 
 
 c.'^" ^'°'" (^) Section six hundred and ninety -two 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 section 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, (c) 
 
 (a) Post, 697. (6) Post, 698. (c) Post, 700. 
 
Workmen's Ooirvpensation Act, 1906 319 
 
 12. — '(l) Every employer in any industry to which the a.b. laos. 
 Secretary of State may direct that this section shall apply Betums as to 
 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 
 compensation has been paid by him under this Act during 
 the previous year, and the amount of such compensation, 
 together with such other particulars as to the compensation 
 as the Secretary of State may direct, and in default of 
 Complying with this section shall be liable on conviction 
 under the Summary Jurisdiction Acts to a fine not 
 exceeding five pounds, (a) 
 
 (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. 
 
 13- In this Act, unless the context otherwise requires, — Deflmtions, 
 
 " Employer " includes any body of persons corporate 
 or unincorporate and the legal personal repre- 
 sentative of a deceased employer, (V) and where 
 the services of a workman are temporarily lent or 
 let on hire to another person by the person with 
 whom the workman has entered into a contract of 
 service or apprenticeship, the latter shall, for the 
 purposes of this Act, be deemed to continue to be 
 the employer of the workman whilst he is working 
 for that other person ; (e) 
 
 " Workman " does not include any person employed 
 otherwise than by way of manual labour {d) whose 
 remuneration exceeds two hundred and fifty 
 
 (a) Post, 702. (6) Post, 477. (c) Post, 477. (d) Post, 454. 
 
320 Workmen's Compensation Act, 1906 
 
 A.D. 1906. pounds a year, (a) or a person whose employment 
 
 is of a casual nature (b) and who is employed 
 otherwise than for the purposes of the employer's 
 trade or business, (e) or a member of a police 
 force, {d) or an out worker, (e) 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 {g) 
 or apprenticeship Qi) with an employer, («) 
 whether by way of manual labour, (^) clerical 
 work, (l) or otherwise, (m) and whether the con- 
 tract is expressed or implied, or oral or in 
 writing ; (n) 
 
 Any reference to a workman who has been injured 
 shall, where the workman is dead, include a 
 reference to his legal personal representative (o) 
 or to his dependants (^) or other person to whom 
 or for whose benefit compensation is payable ; (g) 
 
 " 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 in- 
 capacity due to the accident have been so depen- 
 dent, {r) and where the workman, being the parent 
 or grand parent 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, 
 
 (a) Post, 454. (b) Post, 455, 544. (c) Post, 460, 545. (d) Post, 461. 
 
 (e) Post, 461. (/) Post, 462. (g) Post, 444. (h) Post, 448. 
 
 (i) Post, 442. (fc) Post, 454. {I) Post, 454. {m) Post, 442. 
 
 (w) Post, 442. (o) Post, 462, 579. {p) Post, 550, 551. (g) Post, 552. 
 (r) Post, 462. 
 
Workmen's Compensation Act, 1906 321 
 
 shall include such an illegitimate child and parent a.d. isos. 
 or grandparent respectively ; (a) 
 
 " Member of a family " means wife or husband, father, 
 mother, grandfather, grandmother, step-father, 
 step-mother, son, daughter, grandson, grand- 
 daughter, step-son, step-daughter, brother, sister, 
 half-brother, half-sister ; (b) 
 
 «Ship,"(c) "Tessel,"((^)« seaman," (e) and «port"(/) 
 have the same meanings as in the Merchant 
 Shipping Act, 1894 ; 
 
 "Manager," in relation to a ship, means the ship's 
 husband or other person to whom the manage- 
 ment of the ship is entrusted by or on behalf of 
 the owner ; (ff) 
 
 " Police force " means a police force to which the 53 & 54 vict. 
 Police Act, 1890, or the Police (Scotland) Act, gg^j^yj^j 
 1890, applies, the City of London Police Force, "■ "■ 
 the Eoyal Irish Constabulary, and the Dublin 
 Metropolitan Police Force ; (h) 
 
 "Outworker" means a person to whom articles or 
 materials are given out to be made up, cleaned, 
 washed, altered, ornamented, finished, or repaired, 
 or adapted for sale, in his own home or on other 
 premises not under the control or management of 
 the person who gave out the materials or articles, (i) 
 
 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 ; (k) 
 
 (a) Post, 469. (6) Post, 462. (c) Post, 452. {d) Post, 452. 
 (e) Post, 452. (/) Post, 452. (g) Post, 451. (ft) Post, 461. 
 (i) Post, 461. (fe) Post, 459. 
 
322 Workmen's Compensation Act, 1906 
 
 AD. 1906. " County court," " judge of the county court," " registrar 
 
 of the county court," "plaintiff," and "rules of 
 court," (a) as respects Scotland, mean respectively 
 sheriff court, sheriff, sheriff clerk, pursuer, and 
 act of sederunt, (h) 
 
 Special pro- 14- In Scotland, where a workman raises an action 
 
 visions as to . . n i . . 
 
 Scotland. agamst his employer independently of this Act m respect 
 
 of any injury caused by accident arising out of and in the 
 course of the employment, the action, if raised in the sheriff 
 
 43 & 44 Vict. court and concluding 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, (c) 
 
 Provisions as to IS- — (1) Any coutract (other than a contract substi- 
 
 existing con- , , . 
 
 tracts and tutiDg the provisious of a scheihe certified under the 
 
 schemes. ^ *■ 
 
 60 & 61 Vict. Workmen's Compensation Act, 1897, for the provisions of 
 that Act) existing at the commencement of this Act, 
 whereby a workman relinquishes any right to compensation 
 from the employer for personal injury arising out of and in 
 the course of his employment, shall not, for the purposes 
 of this Act, be deemed to continue after the time at which 
 the workman's contract of service would determine if notice 
 of the determination thereof were given at the commence- 
 ment of this Act. {d) 
 
 (a) See 52 & 53 Vict. c. 63, s. 14 and 56 & 67 Viot. u. 66. 
 
 (fc) Post, 582. (c) Post, 702. (d) Post, 431. 
 
 .37. 
 
Workmen's Compensation Act, 1906 323 
 
 (2) Every scheme under the Workmen's Compensation a.d. isoe. 
 Act, 1897, in force at the commencement of this Act shall, 
 
 if re-certified by the Eegistrar of Friendly Societies, have 
 effect as if it were a scheme under this Act. (a) 
 
 (3) The Eegistrar shall re-certify any such scheme if 
 it is proposed to his satisfaction that the scheme conforms, 
 or has been so modified as to conform, with the provisions 
 of this Act as to schemes. (6) 
 
 (4) If any such scheme has not been so re-certified 
 before the expiration of six months from the commencement 
 of this Act, the certificate thereof shall be revoked. 
 
 16. — (1) This Act shall come into operation on the first commencement 
 day of July nineteen hundred and seven, 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, eo & ei vict. 
 are hereby repealed, but shall continue to apply to cases ea & 64 vict. 
 where the accident happened before the commencement 
 of this Act, except to the extent to which this Act applies 
 to those cases. 
 
 17. This Act may be cited as the Workmen's Com- short utie. 
 pensation Act, 1906. 
 
 (a) Post, 434, 703. (6) Post, 434, 703. 
 
SCHEDULES. 
 
 A.D. 1906. 
 
 FIRST SCHEDULE. First schedule. 
 
 Scale and Conditions of Compensation. 
 
 (1) The amount of compensation under this Act shall 
 be— 
 
 (a) where death results from the injury — 
 
 (i) if the workman leaves any dependants wholly 
 dependent upon his earnings, (a) 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 pound's, whichever of those 
 sums is the larger, but not exceeding in any 
 case three hundred pounds, (h) 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, (c) and, if the period of the workman's 
 employment by the said employer has been 
 less than the said three years, then the 
 amount of his earnings during the said three 
 years shall be deemed to be one hundred 
 and fifty-six times his average weekly earn- 
 ings during the period of his actual employ- 
 ment under the said employer ;(cZ) 
 
 (ii) if the workman does not leave any such 
 dependants, but leaves any dependants in 
 
 (o) Post, 392. (i) Post, 519. (c) Post, 516, 530. [d) Post, 520. 
 
326 Workmen's Compensation Act, 1906 
 
 A.D. 1906. part dependent upon his earnings, {a) such 
 
 FirBt Schedule. sum, uot exceeding in any ease the amount 
 
 payable under the foregoing provisions, as 
 may be agreed upon, or, in default of agree- 
 ment, may. be determined, on arbitration 
 under this Act, to be reasonable and propor- 
 tionate to the injury to the said dependants ; (b) 
 and 
 
 (iii) if he leaves no dependants, the reasonable 
 expenses of his medical attendance and 
 burial, not exceeding ten pounds ; (c) 
 
 (&) where total or partial incapacity for work results 
 from the injury, {d) a weekly payment during the 
 incapacity not exceeding fifty per cent, of his 
 average weekly earnings during the previous 
 twelve months, if he has been so long employed, (e) 
 but if not then for any less period during which 
 he has been in the employment of the same 
 employer, such weekly payment not to exceed 
 one pound :(/) 
 
 Provided that — 
 
 (a) if the incapacity lasts less than two weeks no 
 compensation shall be payable in respect of the 
 first week ; (g) and 
 
 (h) 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 Jess than twenty 
 shillings, one hundred per cent, shall be sub- 
 stituted for fifty per cent, of his average weekly 
 
 (a) Post, 547. (6) Post, 531, 548. (c) Post, 550, 579. (d) Post, 552. 
 (e) Post, 392. (/) Post, 527, 569. (g) Post, 553. 
 
Workmen's Compensation Act, 1906 337 
 
 earnings, but the weekly payment shall in no case a.d. idos. 
 exceed ten shillings, (a) First scueduie. 
 
 (2) For the purposes of the provisions of this schedule 
 relating to " earnings " (&) and " average weekly earnings " (c) 
 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 re- 
 munerated, {d) Provided that where by reason of 
 the shortness of the time during which the work- 
 man has been in the employment of his employer, 
 or the casual nature of the employment, (e) or 
 the terms of "the employment, it is impracticable 
 at the date of the accident to compute the rate of 
 remuneration, 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 employed at the same 
 work by the same employer, (/) or, if there is 
 no person so employed, by a person in the same 
 grade employed in the same class of employment 
 and in the same district ; {g) 
 
 (b) where the workman had entered into concurrent 
 
 contracts of service (h) 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 (c) shall be 
 computed as if his earnings under all such con- 
 tracts were earnings in the employment of the 
 
 (a) Post, 553. (b) Post, 519, 572. {c) Post, 519. (d) Posi, 392, 519, 535. 
 (e) Post, 544. (/) Post, 538. (g) Post, 538. (h) Post, 543. 
 
328 Workmen's Compensation Act, 1906 
 
 ^•i*- 1906. employer for whom he was working at the time of 
 
 FiiBt Schedule. , the accident ; (a) 
 
 (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, (b) 
 
 (d) where the employer has been accustomed to pay 
 
 to the workman a sum to cover any special 
 expenses entailed on him by the nature of his 
 employment, the sum so paid shall not be 
 reckoned as part of the earnings, (e) 
 
 (3) In fixing the amount of the weekly payment, regard 
 shall be had to any payment, allowance, or benefit which the 
 workman may receive from the employer during the period 
 of his incapacity, (d) and in the case of partial incapacity 
 the weekly payment shall in no case exceed the difference 
 between the amount of the average weekly earnings of the 
 workman before the accident and the average weekly 
 amount which he is earning or is able to earn in some 
 suitable employment or business after the accident, but 
 shall bear such relation to the amount of that difference 
 as under the circumstances of the case may appear 
 proper. («) 
 
 (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, (g) his right to compensation, and to take or 
 
 (a) Post, 521. (b) Post, 537, 538. (c) Post, 533. (d) Post, 558. 
 (e) Post, 560. (/) Post, 676. (g) Post, 676. 
 
Worhmen's Compensation Act, 1906 329 
 
 prosecute any proceeding under this Act in relation "to a.d. 1906. 
 compensation, shall he suspended until such examination First schedule. 
 has taken place, (a) 
 
 (5) The payment in the case of death shall, unless 
 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 provisions of this schedule, be 
 invested, applied, or otherwise dealt with by the court in 
 such manner as the court in its discretion thinks fit for the 
 benefit of the persons entitled thereto under this Act, and 
 the receipt of the registrar of the court shall be a sufficient 
 discharge in respect of the amount paid in. (6) 
 
 Provided that, if so agreed, the payment in case of 
 death shall, if the workman leaves no dependants, be made 
 to his legal personal representative, or, if he has no such 
 representative, to the person to whom the expenses of 
 medical attendance and burial are due. (c) 
 
 (6) Bules 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 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 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, {d) 
 
 (0) Post, 676. 
 
 (6) Post, 549. 
 (d) Post, 59?. 
 
 (c)P 
 
 osf, 552, 
 
 B.E.L. 
 
 
 
 Z 
 
330 Workmen's Compensation Act, 1906 
 
 A.D. 1906. (8) Any question as to who is a dependant shall, in 
 
 First Schedule, 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, (a) 
 
 (9) Where, on application being made in accordance 
 with rules of court, it appears to a county court that, on 
 account of neglect of children on the part of 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 the apportionment amongst the 
 several dependants of any sum paid as compensation, or as 
 to the manner in which any sum payable to any such 
 dependant is to be invested, applied, or otherwise dealt 
 with, ought to be varied, the court may make such order 
 for the variation of the former order or the reward, as in the 
 circumstances of the case the court may think just. (6) 
 
 (10) Any sum which under this schedule is 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, (c) 
 
 (11) Any sum to be so invested may be invested in 
 the purchase of an annuity from the National Debt Com- 
 missioners 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 
 
 (a) Post, 549. (6) Post, 593. (c) Post, 581. 
 
Worhmens Compensation Act, 1906 331 
 
 statute or regulations respecting the limits of deposits in a.d. isos. 
 savings banks, and the declaration to be made by a depositor, First schedule. 
 shall not apply to such sums, (a) 
 
 (12) No part of any money invested in the name of 
 the registrar of any county court in the Post OfJSce 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 moneys 
 invested in a post office savings bank under the provisions 
 of this Act may, nevertheless, open an account in a post 
 office savings bank or in any other savings bank in his 
 own name without being liable to any penalties imposed 
 by any statute or regulations in respect of the opening of 
 accounts in two savings banks, or of two accounts in the 
 same savings bank. 
 
 (14) Any workman receiving weekly payments under 
 this Act shall, if so required by the employer, from time 
 to time submit himself for examination by a duly qualified 
 medical practitioner provided and paid by the employer. 
 If the workman refuses to submit himself to such examina- 
 tion, or in any way obstructs the same, (&) his right to 
 such weekly payments shall be suspended until such 
 examination has taken place, (c) 
 
 (15) A workman shall not be required to submit himself 
 for examination by a. medical practitioner under paragraph 
 (4) or paragraph (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, {d) 
 
 [a) Post, 581, (b) Post, 680, 682, (c) Post, 676, 
 
 (d) Post, 680, 
 
332 Workmen's Compensation Act, 1906 
 
 A.D. 1906. Where a workman has so submitted himself for examina- 
 
 Firet Schedule, tion 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 work- 
 man'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, (a) 
 
 The medical referee to whom the matter is so referred 
 shall, in accordance with regulations made by the Secretary 
 of State, (h) 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 certificate shall be conclusive evidence as to the 
 matters so certified, (e) 
 
 Where no agreement can be come to between the 
 employer and the workman as to whether or to what extent 
 the incapacity of the workman is due to the accident, the 
 provisions of this 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, (cZ) his right to compensation 
 and to take or prosecute any proceeding under this Act 
 
 (a) Post, 680. (6) Post, 871. (c) Post, 683. (d) Post, 682. 
 
Workmen's Compensation Act, 1906 333 
 
 in relation to compensation, or, in the case of a workman a.d. isoe. 
 in receipt of a weekly payment, his right to that weekly i^irst soiieduie. 
 payment, shall be suspended until such examination has 
 taken place, {a) 
 
 Eules of court may be made for prescribing the manner 
 in which documents are to be furnished or served and 
 applications made under this paragraph and the forms to 
 be used for those purposes and, subject to the consent of 
 the Treasury, as to the fee to be paid under this paragraph, (h) 
 
 (16) Any weekly payment may be reviewed at the 
 request either of the employer or of the workman, and on 
 such review may be ended, diminished, or increased, subject 
 to the maximum above provided, and the amount of payment 
 shall, in default of agreement, be settled by arbitration 
 under this Act : (c) 
 
 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 fifty 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, {d) 
 
 (17) Where any weekly payment has been continued 
 for not less than six months, the liability therefor may, 
 on application by or on behalf of the employer, be redeemed 
 by the payment of a lump sum of such an amount as, where 
 the incapacity is permanent, would, if invested in the 
 purchase of an immediate life annuity from the National 
 Debt Commissioners through the Post Office Savings Bank, 
 purchase an annuity for the workman equal to seventy-five 
 
 {a) Post, 68i. (6) Post, 681. (c) Post, 560, 574. (d) Post, 562, 573. 
 
334 Workmen's Oompensation Act, 1906 
 
 J A.. i). 190 6. per cent, of the annual value of the weekly payment, and 
 First Schedule, as iu 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. (a) 
 
 (18) If a workman receiving a weekly payment ceases 
 to reside in the United Kingdom, he shall thereupon cease 
 to be entitled to receive any weekly payment, unless the 
 medical referee certifies that the incapacity resulting from 
 the injury is likely to be of a permanent nature. If the 
 medical referee so certifies, the 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 con- 
 tinuance of the incapacity in respect of which the weekly 
 payment is payable, (b) 
 
 (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, (c) 
 
 (20) Where under this schedule a right to compensa- 
 tion is suspended no compensation shall be payable in 
 respect of the period of suspension, (d) 
 
 (21) Where a scheme certified under this Act provides 
 for payment of compensation by a friendly society, the 
 provisions of the proviso to the first subsection of section 
 
 {a) Post, 553. {b) Post, 557. (c) Post, 582. (d) Post, 681. 
 
Workmen's Compensafion Act, 1906 335 
 
 eigbt, section sixteen, and section forty-one of the Friendly 'a.d. woe. 
 Societies Act, 1896, shall not apply to such society in 59 & eo vict. 
 respect of such scheme, (a) 
 
 (22) In the application of this Act to Ireland the pro- 
 yisions of the County Officers and Courts (Ireland) Act, ^^g*^^''^'"^'- 
 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. (by 
 
 SECOND SCHEDULE. second SchedaU. 
 Sections 1, 14. 
 
 Aebiteation, etc. 
 
 (1) For the purpose of settling any matter which 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 herein-after 
 provided, (c) 
 
 (2) If either party so objects, or there is no such com- 
 mittee, 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 pro- 
 cedure prescribed by rules of court, (d) 
 
 (a) Post, 582. (b) Post, 582. (c) Post, 623, 626. (d) Post, 623. 
 
52 & 53 Vict, 
 c. 19. 
 
 336 Workmen's Compensation Act, 1906 
 
 A.D^oe. (3) In England tlie matter, instead of being settled 
 
 Second Schedule, by the judge of the countj court, may, if the Lord Chancellor 
 so authorizes, 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, (a) 
 
 (i) 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 ; (6) and the judge of the 
 county court, or the arbitrator appointed by him, shall, 
 for the purpose of proceedings under this Act, have the 
 same powers of procuring the attendance of witnesses and 
 the production of documents as if the proceedings were 
 an action in the county court, (c) 
 
 (5) A judge of county courts may, if he thinks fit, 
 summon a medical referee to sit with him as an assessor, (d) 
 
 (6) Eules of court may make provision for the appear- 
 ance in any arbitration under this Act of any party by 
 some other person. («) 
 
 (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, 
 
 (a) Post, 630. (6) Post, 624. (c) Post, 672. (d) Post, 687. 
 
 (e) Post, 629. 
 
Workmen's Compensation Act, 1906 337 
 
 subject as respects such judge and an arbitrator appointed a.d. 1906. 
 by him to rules of court, (a) The costs, whether before a second scueauie, 
 committee or an arbitrator or in the county court, shall not 
 exceed the limit prescribed by rules of court, and shall be 
 taxed in manner prescribed by those rules and such taxa- 
 tion may be reviewed by the judge of the county court, (b) 
 
 (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.(c) 
 
 (9) Where the amount of compensation under this Act 
 has been ascertained, or any weekly payment varied, or 
 any other matter decided under this Act, either by a 
 committee or by an arbitrator or by agreement, a memo- 
 randum thereof shall be sent, in manner prescribed by rules 
 of court, (d) 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, (e) 
 
 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 memorandum of 
 
 agreement between his employer and himself for 
 the payment of compensation under this Act and 
 the employer, in accordance with rules of court, 
 proves that the workman has in fact returned to 
 work and is earning the same wages as he did 
 
 (a) Post, 656. (6) Post, 656. (c) Post, 623. 
 
 [d) W. 0. B., 1907, rr. 41-47, post, 740 et sea- (e) Post, 626, 660. 
 
 (/) Post, 662. 
 
33S Workmen's Compensation Act, 1906 
 
 AD. 1906. before the accident, and objects to the" recording 
 
 Second Siheduie. of such memorandum, the niemorandum shall 
 
 only be recorded, if at all, on such terms as the 
 judge of the county court, under the circumstances, 
 may think just ; (a) and 
 (c) the judge of the county court may at any time 
 rectify the regis'ter ; (b) 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 tov be registered by 
 reason of the inadequacy of the sum or amount, or 
 by reason of the agreement having been obtained 
 by fraud or undue influence, or other improper 
 means, he may refuse to record the memorandum 
 of the agreement sent to him for registration, and 
 refer the matter to the judge who shall, in 
 accordance with rules of court, make such order 
 (including an order as to any sum already paid 
 under the agreement) as under the circumstances 
 he may think just ; (c) and 
 
 (e) The judge may, within six months after a 
 memorandum of an agreement as to the redemp- 
 tion of a weekly payment by a lump sum, or of aa 
 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 
 
 (a) Post, 667. (b) Post, 661. (c) Post, 661. 
 
Workmen's Compensation Act, 1906 339 
 
 was obtained by fraud or undue influence or other a.d. 1906. 
 improper means, and may make such order second schedule. 
 (including an order as to any sum already paid 
 under the agreement) as under the circumstances 
 he may think just, {a) 
 
 (10) An agreement as to the redemption of a weekly 
 payment by a lump sum if not registered in accordance 
 with this Act shall not, nor shall the payment of the sum 
 payable under the agreement, exempt the person by whom 
 the weekly payment is payable from liability to continue 
 to make that weekly payment, and an agreement as to the 
 amount of compensation to be paid to a person under a legal 
 disability or to dependants, if not so registered, shall not, nor 
 shall the payment of the sum payable under the agreement, 
 exempt the person by whom the conpeusation 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. (6) 
 
 (11) Where any matter under this Act is to be done in 
 a county court, or by, to, or before the judge or registrar of 
 a county court, then, unless the contrary intention appear, 
 the same shall, subject to rules of court, be done in, or by, 
 to, or before the judge or registrar of, the county court of 
 the district in which all the parties concerned reside, or if 
 they reside in different districts the district prescribed by 
 rules of court, without prejudice to any transfer in manner 
 provided by rules of court, (c) 
 
 (12) The duty of a judge of county courts under this 
 Act, or in England of an arbitrator appointed by him, shall, 
 subject to rules of court, be part of the duties of the 
 county court, and the officers of the court shall act 
 accordingly, and rules of court may be made both for any 
 
 (a) Post, 661. (6) Post, 665. (c) Post, 588, 636. 
 
340 Workmen's Compensation Act, 1906 
 
 A.D. 1906. purpose for whict this Act authorizes rules of court to be 
 Second Schedule, made, and also generally for carrying into effect this Act so 
 far as it affects the county court, or an arbitrator appointed 
 by the judge of the county court, and proceedings in the 
 county court or before any such arbitrator, and such rules 
 may, in England, be made by the five judges of county 
 courts appointed for the making of rules under section one 
 hundred and sixty-four of the County Courts Act, 1888, 
 and when allowed by the Lord Chancellor, as proyided by 
 that section, shall have full effect without any further 
 consent, (a) 
 
 (13) No court fee, except such as may be prescribed 
 under paragraph (15) of the First Schedule to this Act, 
 shall be payable by any party in respect of any pro- 
 ceedings by or against a workman under this Act in the 
 court prior to the award, (b) 
 
 (14) Any sum awarded as compensation shall, unless 
 paid into court under this Act, be paid on the receipt of 
 the person to whom it is payable under any agreement or 
 award, and the 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 committee, 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 taxa- 
 tion and to the scale of costs prescribed by rules of court, (c) 
 
 (15) Any committee, arbitrator, or judge may, subject 
 
 (a) Post, 674. (b) Post, 674. (c) Post, 591. 
 
Workmen's Compensation Act, 1906 341 
 
 to regulations made by the Secretary of State and the a.owos. 
 Treasury, submit to a medical referee for report any matter second schedule. 
 which seems material to any question arising in the 
 arbitration, (a) 
 
 (16) The Secretary of State may, by order, either 
 unconditionally or subject to such conditions or modifica- 
 tions as he may think fit, confer on any committee repre- 
 sentative of an employer and his workmen, as respects any 
 matter in which the committee acts 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, and the order may exclude from the operation of 
 provisoes (d) and (e) of paragraph (9) of this Schedule 
 agreements submitted to and approved by the committee, 
 and may contain such incidental, consequential, or supple- 
 mental provisions as may appear to the Secretary of State 
 to be necessary or proper for the purposes of the order. (6) 
 
 (17) In the application of this Schedule to Scotland — 
 (a) " County court judgment " as used in paragraph 
 
 (9) of this Schedule means a recorded decree 
 arbitral : 
 (&) Any application to the sheriff as arbitrator shall 
 be heard, tried, and determined summarily in the 
 manner provided by section fifty -two of the Sheriff 
 Courts (Scotland) Act, 1876, save only that parties 39&40 vict. 
 may be represented by any person authorized in "" 
 writing to appear for them and subject to the 
 declaration that it shall be competent to either 
 
 (a) Post, 624. (6) Post, 625. 
 
342 
 
 Workmen's Compensation Act, 1906 
 
 A.D. 1906. 
 Second Schedule. 
 
 party within the time and in accordance with 
 the conditions prescribed by act of sederunt to 
 require the sheriff to state a case on any question 
 of law determined by him, and the decision 
 thereon in such case may be submitted to either 
 division of the Court of Session, who may hear 
 and determine the same and remit to the sheriff 
 with instruction as to the judgment to be pro- 
 nounced, and an appeal shall lie from either of 
 such divisions to the House of Lords : 
 (e) Paragraphs (3), (4), and (8) shall not apply, (a) 
 (18) In the application of this schedule to Ireland the 
 expression "judge of the county court " shall include the 
 recorder of any city or town, and an appeal shall lie from 
 the Court of Appeal to the House of Lords, (b) 
 
 Section 8. 
 
 THIED SCHEDULE. 
 
 Description of Disease. 
 
 Description of Process. 
 
 Anthrax (c) - 
 
 Lead poisoning or its 
 sequelae (d) 
 
 Mercury poisoning or 
 its sequelae 
 
 Phosphorus poisoning or 
 its sequelsB 
 
 Arsenic poisoning or its 
 sequelae 
 
 Ankylostomiasis 
 
 Handling of wool, hair, bristles, hides, and skins. 
 
 Any process involving the use of lead or its 
 preparation or compounds. 
 
 Any process involving the use of mercury 
 or its preparations or compounds. 
 
 Any process involving the use of phosphorus 
 or its preparations or compounds. 
 
 Any process involving the use of arsenic or 
 its preparations or compounds. 
 
 Mining. 
 
 (a) Post, 629 n. 
 
 (b) Post, 674. (c) Post, 364. (d) Post, 365. 
 
Wm'kmen's Compensation Act, 1906 343 
 
 Where regulations or special rules made under any Act a.d. 1906. 
 of Parliament for the protection of persons employed in Third schedule. 
 any industry against the risk of contracting lead poisoning 
 require some or all of the persons employed in certain 
 processes specified in the regulations or special rules to be 
 periodically examined by a certifying or other surgeon, 
 then, in the application of this schedule to that industry, 
 the expression " process " shall, unless the Secretary of 
 State otherwise directs, include only the processes so 
 specified, (a) 
 
 (a) Post, 365. 
 
CHAPTER VII 
 
 The Eiohts confeeeed 
 
 We have now to consider the Workmen's Compensation New principle. 
 legislation of 1906. As before noticed, (a) the Workmen's 
 Compensation Act, 1897, introduced a new principle into 
 English law. The Act of 1906 repeals the earlier legisla- . 
 tion and, sweeping away its exceptions and limitations, 
 enacts that employers in any employment are responsible summary. 
 to their workmen for personal injury by accident arising 
 out of and in the course of the employment, in all cases 
 where the injury is of a character which disables the work- 
 man for at least one week from earning full wages at the 
 work at which he was employed, (b) and provided that he 
 is not shown to have brought the injury on himself by 
 " serious and wilful misconduct " ; (c) " unless the injury 
 results in death or serious and permanent disablement." 
 In this event, though the " serious and wilful misconduct " 
 may have caused the death or ruin or both of the employer, 
 the cause of it, the workman, in the case of his permanent 
 disablement is entitled to draw a weekly payment not to 
 exceed £1 ; or, in the case of his death, his dependants are to 
 receive a sum between £150 to £300 from the employer or 
 his estate ;(c^) payment of which may be enforced by ordinary 
 process of execution (e) or by a committal order under 
 
 (a) At 7, (6) S. 1 (2) (a). Ante, 299. 
 
 (c) S. 1 (2) (c). Ante, 300. 
 
 (d) See definition of " employer," s. 13. Ante, 319. 
 (c) W. C. B. 1907, r. 67. Post, 757. 
 
 B.E.L. 2 A 
 
346 
 
 Workmen's Compensation Act, 1906 
 
 Chap. VII. the Debtors Act, 1869. (a) The week's disability is a 
 condition precedent to the Act applying ; but when . that 
 condition is complied with, even though the employer has 
 continued paying full wages, the workman is no less 
 entitled to statutory compensation. He is brought within 
 the Act by the fact of a week's disability from earning 
 full wages at the work at which he was employed, (&) 
 where the disability is brought about by an accident 
 arising out of and in the course of the employment ; and 
 has prima facie a right to compensation. 
 
 We have already considered the constituents that go 
 . to make up personal injury in law. (c) We must now 
 ascertain the meaning of the terms " accident," " arising 
 out of and in the course of the employment," and " serious 
 and wilful misconduct," as necessary steps to arrive at an 
 accurate notion of the liability imposed. 
 
 statement of 
 principle by 
 Lord Mac- 
 nagbten. 
 
 Accident. 
 
 There is no definition of accident in the Act ; and the 
 meaning of accident, as applying in insurance cases and 
 which has already been considered, is not comprehensive 
 enough here. The principle to be adopted in interpreting 
 an accident under the Act has been thus enunciated by 
 Lord Macnaghten : (d) 
 
 " The expression ' injury by accident ' seems to me to be 
 a compound expression. The words ' by accident ' are, I 
 
 (a) 32 & 33 Viot. o. 62. Bailey v. Plant, [1901] 1 K. B. 31 ; W. 0. E 
 1907, r. 68. Post, 757. 
 
 (6) Chandler v. Smitli, [1899] 2 Q. B. 506, foUowed in Scotland, 
 Freeland i). Maofarlane (1900), 2 P. 832 ; Gt. N. of Scotland Ry. Go. v. 
 Praser, 38 So. L. E.. 653 : An ofier of employment is some evidence of earn- 
 ing capacity, bnt is not conclusive. 
 
 (c) Ante, 49 et seqc[. 
 
 (d) Penton v. Thorley & Co., [1903] A. C. 443 at 448. 
 
Injury hj Accident 347 
 
 think, introduced parenthetically as it were to qualify the Chap. VII. 
 word ' accident ' or the word ' injury ' or the compound 
 expression 'injury by accident,' I rather think that the 
 latter yiew is the correct one. If it were a question 
 whether the qualifying words apply to ' injury ' or to 
 ' accident ' there would, I think, be some difficulty in 
 arriving at a conclusion. . . . The truth is that in the 
 Act, which does not seem to have had the benefit of careful 
 revision, ' accident ' and ' injury ' — that is, injury by accident 
 — appear to be used as convertible terms ; for instance, in 
 sec. 2, ' notice of the accident ' has to be given, and that 
 notice is referred to immediately afterwards as ' notice in 
 respect of an injury under the Act.' I come, therefore to 
 the conclusion that the expression accident is used in the 
 popular and ordinary sense of the word as denoting an 
 unlooked-for mishap or an untoward event which is not 
 expected or designed." (a) This negatives the other view 
 which had up to this time prevailed : that there must be 
 first a personal injury ; second, that there must be an 
 accident causing it ; third, that such accident must be the 
 "proximate cause of the injury, and that nothing more 
 remote than the proximate cause can be properly taken 
 into account." (&) 
 
 In Brintons v. Turvey (c) — the anthrax case — Mathew, Brintons «. 
 L. J., states the effect of Fenton v. Thorley thus : " Where 
 the injury to the workman arises from a cause that 
 is unforeseen, the element which constitutes an accident 
 within the meaning of the Act arises " — a compendious 
 form of expression, the logical exactitude of which may be 
 
 (a) See Homsey Local Board v. Monarch Investment Building Society 
 (1889), 24 Q. B. D. 1, 5. Craies, Statute Law, 67 ; The Factory and Work- 
 shop Act, 1901 (I Edw. VII. 0. 21), ss. 19-22. 
 
 (6) [1903] A. 0. at 454. 
 
 (c) [1904] I %, p, .328 at 336, 
 
348 WorTcmen's Compensation Act, 1906 
 
 Chap. VII. doubtful even to the author of it, in view of his preceding 
 
 ■ sentence : " A number of illustrations, each of which was 
 
 more difficult than the case before us, were brought to 
 
 our notice, but I do not propose to follow the learned 
 
 counsel into those cases." 
 
 In Brintons v. Turvey, the argument was narrowed 
 
 down to the point whether an injury by disease, under the 
 
 Act of 1897, could be called an injury by accident. The 
 
 Court of Appeal held that Fenton v. Thorley went thus far. 
 
 lord RobertsoD'e In the House of Lords Lord Robertson, (a) who was of the 
 
 criticism. 
 
 contrary opinion, said : " Anthrax is a disease ; and unless 
 the contracting of infectious disease (so it arises out of and 
 in the course of the employment) is ' accident ' in the sense 
 of the Act, I do not see how this judgment can stand. If 
 it does stand, then in every case in which a man dies of 
 any infectious disease (his taking which arose out of and in 
 course of his employment), all he has got to do is to get the 
 doctor to prove (what could not be disputed) that a bacillus 
 did it, and the accident is there." The decision of the 
 House, however, went with Lord Macnaghten, who adhered 
 to his opinion in Fenton's case. Speaking of Turvey's 
 case, he said : (6) " I cannot doubt that the man's death was 
 attributable to personal injury by accident arising out of 
 and in the course of his employment. The accidental 
 character of the injury is not, I think, removed or displaced 
 by the fact that, like many other accidental injuries, it 
 set up a well-known disease, which was immediately the 
 cause of death, and would no doubt be certified as such in 
 the usual death certificate." 
 
 coiiiDs M.R.'8 Collins, M.R., criticizes Lord Macnaghten's opinion in 
 
 Fenton's case in Steel v. Cammell, Laird & Co., (c) which 
 
 [a) [1905] A. 0. 235. (fc) [1905] j^. Q^ 334. 
 
 (c) [1905] 2 K, 3, 252 at 233. 
 
Injury ly Accident 349 
 
 was a case of lead poisoning producing partial paralysis. Chap. VII. 
 
 Collins, M.R., found it " difficult to extract guidance from 
 
 that case " (Fenton's). He then says, " Turning to the facts of 
 the case, I find that the injury to the applicant was lead 
 poisoning, which was brought about through the applicant 
 being saturated with lead in consequence of his being in 
 continuous contact with it. According to the medical 
 evidence this might have come about by inhalation, or by 
 the lead getting into his system with his food or by absorp- 
 tion through the skin. In any case the result must have 
 come about through long exposure to contact with the lead, 
 and gradually, not suddenly. It is not possible to indicate 
 any precise time at which the mischief arose. It seems to 
 me that the provisions of sec. 2 of the Act show that what 
 is dealt with are cases in which a date can be fixed, as that 
 on which the injury by accident came about. I am unable 
 to find such a date in this case. It has been suggested that 
 there were a series of accidents by the continuous absorption 
 of lead, by one or other of the three processes named ; but 
 this suggestion does not meet the difficulty which arises 
 from the provisions of the Act, as to notice of the particular 
 date of the accident or the injury." 
 
 The next day the same Court had to consider a Marshall «. East 
 
 •' _ . Holywell Coal 
 
 similar difficulty, (a) in two cases where the incapacity co- 
 
 arose from infirmities known respectively as " beat hand " Goruy ». owners 
 
 ofBackworth 
 
 and "beat knee"; that is to say, that the hand and the coiueriea. 
 knee in the respective cases became maimed by the gradual 
 formation of an abscess brought about in the one case by 
 using the pick, and in the other by the friction caused by 
 the applicant wielding the pick while kneeling. In each 
 case the injury was caused by the gradual process of con- 
 tinued friction. CoUinsi M.R., referred to his remarks in 
 
 (a) MarshaU v. Bast HolyweU Coal Co., 21 T. L. B. 494 ; Gorley v. 
 Owners of Baokworth Collieries, ibid. 
 
350 Workmen's Compensation Act, 1906 
 
 Chap. VII. the preceding case " as to the difficulty of finding a mean- 
 ing for the word accident from which the element of hap- 
 hazard was eliminated, but he fell back upon this, which 
 remained after the decision of the House of Lords, that the 
 accident must be something which was capable of being 
 assigned to a particular date, and which was in the popular 
 and ordinary sense an accident. These conditions were 
 not fulfilled in the present case." 
 
 Thompson «. The distinction taken in these cases is marked by 
 
 AshiDgtonCoal 
 
 Co. Thompson v. Ashington Coal Co., (a) where a piece of coal 
 
 worked its way under the skin of the knee of a coal miner 
 (who had often to work kneeling) and caused inflammation 
 and incapacity. This was held an accident within the Act. 
 The date of the occurrence could be fixed. 
 
 Goider V. Golder V. Caledonian Ey. Oo. (V) is an earlier case, but 
 
 Caledonian Ey. i p , 
 
 Co. presents a different phrase of the question what is an 
 
 "accident." The workman was "affected with nephritis, 
 a disease which was likely to prove fatal to him, though 
 probably not for a few years." In these circumstances he 
 was injured in his employment. The sheriff also found 
 as a fact that his death was accelerated from the shock 
 to his system resulting from the accident. The Lord 
 President held that " when but for the accident the person 
 would not have died at the time at which, and in the way 
 in which, he did die, the accident must, in my judgment, 
 be held to have been the cause of his death in the sense 
 of the Act." (c) 
 
 (a) [1901] 84 L. T. 412. 
 
 (6) 5 F. 123. See 121 Law Times newspaper, 523. 
 
 (c) In WUlougliby v. G. W. Ey. Co. (1904), 6 W. C. 0. 28 ; 117 Law 
 Times newspaper, 28, the test given is : If the inability to follow employ- 
 ment is due solely to the presence and normal development of the disease 
 no further compensation is payable ; but, otherwise, if the progress and 
 intensity of the disease has been accelerated and aggravated by the 
 accident. 
 
Injury hy Accident 351 
 
 The other aspect is presented by VVarnock v. G-iasgow Chap. VII. 
 Iron & Steel Co., (a) where a man seventy-nine years of wam^^ 
 age had a stone fall on his foot and in consequence was ^inS c™ 
 obliged to leave work. His physical condition generally 
 was lowered, and he never regained his former standard of 
 health. A month after this accident by his doctor's advice 
 he returned to work. A fortnight afterwards he was taken 
 ill at his work and fainted. Ten days afterwards he had 
 an apoplectic stroke, and two days later he died. The 
 sheriff found that it had not been proved that death was 
 accelerated by the accident, and the Court dismissed an 
 appeal holding that the position was one of fact only. 
 
 This ratio decidendi has had the approbation of the cieveriey's case. 
 House of Lords in circumstances so clear that the only 
 wonder is that the case ever got so far. (h) A workman was 
 injured, and from the date of the accident his employers 
 paid him half wages till an agreement and a memorandum 
 of it registered under the Act was made by which the 
 workman was to have 18s. a week so long as his incapacity 
 lasted. This sum was paid him weekly for more than a 
 year, when the man died. The dependants then applied 
 for compensation under the Act. The deputy judge in a 
 written judgment said that "the evidence did not satisfy 
 him that the death was caused or to any appreciable 
 extent accelerated by the accident, but found as a fact 
 that the sole cause of Cieveriey's incapacity to work was " 
 an obscure disease from which he was suffering, symptoms 
 of which were present at the time of the accident, and of 
 which disease alone he died. He supplemented this by a 
 most extraordinary finding, "that the respondents were 
 estopped from denying that the disease which caused 
 the death was the result of the accident hy reason of the 
 
 (a) 6 P. 474. (6) Cleverley v. Gas Light & Coke Co., 24 T. L. B. 93. 
 
352 Workmen's Compensation Act, 1906 
 
 Chap. VII, agreement into ivhich they had entered and the contimied 
 payments which they had made." The Court of Appeal 
 held that there was no case of estoppel, and the House of 
 Lords aflBrmed them without calling on the respondents. 
 Lord Halsbury pointed out that "the County Court was 
 the deciding tribunal on all questions of fact, and the 
 judge had found that the death was not caused by the 
 accident." 
 
 Whatever the consequences of the injury, so only as 
 it is proved that they are the consequences, they are to be 
 attributed to the injury whether they are natural and 
 probable consequences of it or not; and the previous 
 condition of health of the workman is not material, (a) 
 
 Broderickii. The meaning of "accident" in the Act of 1906 was 
 
 councu. ""'' ^ before the Court of Appeal in Broderick v. London County 
 Council, (b) Applicant was a sewer man who had suffered 
 from enteritis caused by the inhalation of sewer gas, which 
 aggravated existing heart disease and incapacitated him. 
 Cozens-Hardy, M.E., affirming the County Court judge, 
 said that this was " not injury by accident," that the 
 anthrax case'(c) was explained by having regard to the 
 special finding of the County Court judge, that ordinarily 
 the operation of disease was not an accident within the 
 Act, and that this was conclusively established not only 
 by the remarks of Lord Lindley in Turvey's case, but also 
 by the new Act separating certain " industrial diseases " 
 from the rest and providing for them in the Act. 
 
 ismay, imrie & The determination of what is accident again came 
 
 Co. 1). William- , 
 
 8™- before the House of Lords on Appeal from the Irish 
 
 (a) Dunham v. Clare, [1902] 2 K. B. 296. Wicks v. Dowell, [1905] 2 
 K. B. 225. Case of a fall while in an epileptic fit, the woiknaan haviu g 
 had fits on three previous occasions. Ante, 67. 
 
 (6) [1908] 2 K. B. 807. 
 
 (c) Brintons v. Turvey, [1906] A. C. 230. 
 
Injury hy Accident 353 
 
 Courts in Ismay, Imrie & Co. v. Williamson, (a) which had Chap. VII. 
 awarded £162 compensation to the widow of one William- 
 son who had died from heat stroke while working as 
 trimmer on the s.s. Majestic. When about to leave New 
 York three men were needed for the ship, and the Seamen's 
 Mission supplied Williamson as one of them. He had 
 been starving and had applied to the said mission for 
 work. "He seems to have been a miserable creature 
 physically, undersized, underfed, and so emaciated that, 
 as one of the witnesses says, 'his bones projected.' The 
 work of a trimmer is not heavy in itself. It is, no doubt, 
 trying work, owing to the heated atmosphere of the stoke- 
 hole where trimmers work, raking out the ashes of the 
 furnaces. The men work in shifts — four hours on and 
 eight hours off. The deceased had no experience of such 
 work. He got through two shifts. On his third turn after 
 about an hour's work he had a ' heat stroke,' as it is called. 
 He went on until he dropped in a faint. He was carried 
 to hospital, recovered partially, then became violent and 
 died from exhaustion two hours after leaving the stoke- 
 hole." The above statement is taken from the opinion of 
 Lord Macnaghten, who asks, " Was that an injury by acci- 
 dent in the ordinary sense of the expression ? " This was 
 with reference to his lordship's expression in Fenton v. 
 Thorley : ■(&) " I come, therefore, to the conclusion that the 
 expression ' accident ' is used in the popular and ordinary 
 sense of the word as denoting an unlooked-for mishap 
 or an untoward event which is not expected or designed," 
 and which was adopted by the House. Lord Lore- 
 burn, C, answered: "In my view this man died from 
 an accident." "In common language it was a case of 
 accidental death." " What killed him was a heat stroke 
 
 (a) [1908] A. C. 437, Holmes, L.J., dissenting in the Irish Court of 
 Appeal. 
 
 (6) [1903] A. C. at 448. 
 
354 Workmen's Compensation -Act, 1906 
 
 Chap. VIL coming suddenly and unexpectedly upon him while at 
 work." The other aspect is put by Lord Macnaghten. 
 The expression of the Act, " personal injury by accident," 
 would, he said, "be equally applicable or equally 
 inapposite in the case of an attack of bronchitis or 
 pneumonia brought on by a sudden and violent chill dis- 
 regarded or neglected at the outset." "The death was 
 due to the physical state of the workman and ' the nature ' 
 of the employment, to use the language of section 8, sub- 
 section 6. It was, I think, just what anybody would have 
 expected who saw the man and knew what a trimmer has 
 to do. Add the fact that the man was wholly inex- 
 perienced, ignorant of what ought to be done in cases of 
 emergency, and the result would be a foregone conclusion." 
 Lord Ashbourne held the balance between these views. He 
 solved the question thus : " With great deference to 
 those who hold a contrary opinion, I can myself see no 
 room for doubt on the subject. Everything was in the 
 course of his [Williamson's] employment and arising out of 
 it. But for the boiler and the heat stroke, and the speedy 
 exhaustion it caused, there would have been no accident. 
 If the Act is to be interpreted according to its ' ordinary 
 and popular meaning,' " " would not the generality of 
 mankind say that what occurred was an injury caused by 
 an accident ? " To an intelligence less perspicacious than 
 that of Lord Ashbourne there may seem room for doubt 
 whether a death in the circumstances set out above would 
 be ordinarily and in popular phrase described as an 
 accident ; unless in the sense that accident is synonymous 
 with occurrence. In this sense every permutation in time 
 or space is an occurrence; but gome narrower meaning 
 than this seems confessed to be that to be placed on 
 the term in the Act. This much is allowed, Fenton v. 
 Thorley is " a conclusive authority." Ismay, Imrie & Co. v. 
 
Industrial Diseases 355 
 
 Williamson only raises a question of the application of a Chap. VII. 
 principle to particular facts, as to which Lord Ashbourne 
 cannot doubt, but Lord Macnaghten arrives at an opposite 
 conclusion. 
 
 Industrial Diseases. 
 
 The diflSculty felt at arriving at the decision in Fenton New ciassifica- 
 V. Thorley (a) and inability to overcome the reasoning in 
 Steel V. Cammell, Laird & Co., (b) have presumably induced 
 a new legislative departure ; though in the decisions on this 
 chapter of law Lord Halsbury's apophthegm, "the law is 
 not always logical at all," (c) is perhaps more frequently 
 and abundantly illustrated than anywhere else {d). Certain 
 descriptions of diseases are accordingly now brought under 
 the Act, whether they can be treated as accident or not. (e) 
 The old decisions stand quantum valeant ; they mark in some- 
 what indistinct outline the features of " injury by accident " ; 
 but now the effects of certain diseases are to be reckoned as 
 
 (fls) [1903] A. 0. 443. 
 (6) [1905] 2 K. B. 282. 
 
 (c) Quimiw. Leathern, [1901] A. C. at 506. 
 
 (d) On this part of the subject (s. 8 (1)) Mr. Parsons in his edition of the 
 Act has a valuable note, which I trust he will pardon me for transcribing : 
 " The elaborate set of substitutions by means of which the draughtsman 
 conjures with ' death,' ' disease,' and ' accident,' involves an amazing series 
 of logical absurdities. Having begun with disablement as effect of disease, 
 the section makes disease the equivalent of injury by accident, so that 
 disablement becomes the equivalent of an efieot of which accident is the 
 cause, and then by modification (a) enacts that effect ' shall be treated ' as 
 cause. Similarly it will be found that ' disablement,' 'suspension,' ' death,' 
 ' disease,' ' accident,' and ' injury ' become each the eqmvalent, the cause, and 
 the effect of each of the others. This specimen of draughtsmanship would 
 seem to justify the application to this Act of the words which Collins, L.J., 
 used of the Act of 1897 in Hennessy «. McCabe (as reported (1900), 69 L. J. 
 Q. B. 175) : The Act is drawn in such an extraordinary fashion, and the 
 methods of arriving at its meaning are so complicated, that it is not easy 
 to deal with it on broad grounds of common sense." My own standard of 
 expectation is not pitched so high as Mr. Parsons' apparently is, but e.g. I 
 do not find what is called the " definition " of " workman " in s. IB quite 
 lucid. 
 
 (e) Third Schedule. Ante, 342. 
 
356 Workmen's Compensation Act, 1906 
 
 Chap. VII. matter for compensation under the classification of - " in- 
 dustrial diseases." 
 
 Defined. An industrial disease is one which (a) "is due to the 
 
 nature of any employment in which the workman was 
 employed at any time within the twelve months previous to 
 the date of the disablement or suspension," (6) and which 
 is mentioned in the Third Schedule of the Act, or by an 
 order of the Secretary of State under sec. 8 (6) (e). 
 
 The Third Schedule (d) specifies anthrax, lead, mercury, 
 phosphorus, or arsenic poisoning and their sequelae, and 
 besides ankylostomiasis, (e) while under the powers given 
 to the Secretary of State an order has been issued including 
 eighteen more diseases, sufferers from which may obtain 
 the advantages of the Act if otherwise entitled. (/) 
 
 To obtain the benefit of sec. 8 of the Act for a workman 
 or his dependants — 
 
 The workman must either (1) be certified to be suffer- 
 ing from one of the above indicated diseases, 
 and to be disabled from earning full wages by 
 the certifying surgeon for the district in which 
 the workman is employed, appointed under the 
 Factory and Workshop Act, 1901 (1 Edw. VII. 
 c. 22), sees. 122-124; (g) 
 
 (a) a. 8 (1). Ante, 311. 
 
 (6) This refers to a suspension of a workman from his usual employment 
 in pursuance of special rules or regulations, made under the Factory and 
 Workshop Act, 1901, on account of having contracted a disease mentioned 
 in the Third Schedule of the Workmen's Compensation Act, 1906. 
 
 (c) Ante, 315. 
 
 (d) Ante, 342. 
 
 (e) A disease caused by the presence in the human intestine of a 
 parasitic worm, to which miners are sometimes exposed. 
 
 (/) Appendix B. Post, 850. 
 
 {g) By s. 8 (3), the Secretary of State may make rules regulating the 
 duties and fees of certifying and other surgeons (including dentists) under 
 this section. See Regulations dated 21st June, 1907. Appendix B. 
 Post, 852. 
 
industrial Diseases 357 
 
 or (2) be suspended from his employment, on account Chap. VII. 
 
 of having contracted any of the above-mentioned 
 
 diseases, in pursuance of regulations for dangerous 
 trades made under the powers given by the 
 Factory and Workshop Act, 1901 (1 Edw. VII. c. 
 22), sees. 79-86 ; (a) 
 
 or (3) have died from the effect of a scheduled in- 
 dustrial disease. 
 
 One or other of these sets of conditions being complied 
 with, the workman or his dependants " shall be entitled to 
 compensation under this Act as if the disease or such sus- 
 pension as aforesaid were a personal injury by accident 
 arising out of and in the course of that employment." (6) 
 
 The difficulty that the former law, as pointed out in steeiu.cammeii, 
 Steel V. Cammell, Laird, & Co., (e) interposed by requir- 
 ing "notice of accident" to be given, was overcome by 
 enacting that "the disablement or suspension shall be 
 treated as the happening of the accident." (d) But a repre- 
 sentation by the workman on entering the employment 
 that he had not previously suffered from the disease in 
 respect of which a claim is made, disentitles him to compen- 
 sation ; but only if such representation is in writing and was 
 " wilfully and falsely " made, (e) If " wilfully and falsely " 
 is the equivalent of fraudulently, this subsection makes an 
 inroad upon the doctrine of the common law ; for " by the 
 law of England fraud cuts down everything. I (f) believe 
 
 {a) An appeal from the certifying or other surgeon is given to a medical 
 referee to be appointed by the' Secretary of State. See Begulations of 21st 
 June, 1907, in Appendix B. Post, 852. 
 
 (6) S. 8 (1). Ante, 312. (c) [1905] 2 K. B. 232. 
 
 (d) S. 8 (1) (a) W. 0. R. 1907, i'. 39 (2), provides for notice of disablement. 
 Post, 738. 
 
 {e) S. 8 (1) (6). 
 
 (/) PoUook, 0, B. 
 
368 Workmen's Cmnpensation Act, 1906 
 
 Chap. VII. tliat is the common mode of expressing a legal proposition 
 
 known to every lawyer in Westminster Hall. The law sets 
 
 itself against fraud to the extent of breaking through 
 almost every rule, sacrificing every maxim, getting rid of 
 every ground of opposition which may be presented so as to 
 prevent it from succeeding. So much does the law of 
 England abhor fraud that even the maxim that you can 
 never aver against the record is not allowed to prevail if 
 fraud can be shown ; and probably there is no maxim more 
 stringent than that you cannot aver against the record. 
 The law will not allow technical difficulties of any kind to 
 interfere to prevent the success of right and justice and 
 truth." Thus speaks the wisdom of the common law. (a) 
 
 But expressio unius est exeiusio alterius. By this pro- 
 vision of the Workmen's Compensation Act the grossest 
 fraud may be successful if not in writing. The bane, how- 
 ever, produces the antidote ; and as the Act comes into use 
 all representations of this character will be required to be 
 in writing. 
 
 Where develop- ^g ^}^q development of disease may be slow and is often 
 
 ment of disease '^ •' 
 
 is gradual. obscuro, it may be due to work done during the twelve 
 months under more than one employer. In such case the 
 compensation is to be recoverable from the last employer. 
 
 But a difficulty may occur, and often does occur, in 
 tracing the history of the workman for a twelvemonth. 
 Provision is accordingly made by the Act (J) that if 
 required to do so the workman, or in case of his death his 
 dependants, shall affijrd " such information as to the names 
 and addresses of all the other employers who employed him 
 in the employment " " as he or they may possess." If enough 
 information is not given to enable the employer to bring in 
 
 (a) Rogers v. Hadley, 32 L. J. Ex. 248. (6) S. 8 (1) (c) (i). 
 
Industrial Diseases 359 
 
 a previous employer as respondent against whom he may Chap. VII. 
 proceed for indemnity, the employer " upon proving that 
 the disease was not contracted whilst the workman was in 
 his employment shall not be liable to pay compensation." 
 But if the information is given, there is a choice for the 
 employer either to use it and bring in another respondent, 
 or to defend on his own case. If he defends on his own 
 case he is bound to pay the compensation on proof of the 
 applicant's case, whether the disease originated during 
 the period of the workman's service with him, or whether 
 at any other period of the twelve months' service in the 
 employment to the nature of which the disease was due. 
 The wording at first sight is a little odd, as if in a 
 particular case a right is given to an employer to prove 
 that the disease was contracted at a period when the work- 
 man was not in his service. A reference to the following 
 proviso makes the matter clear. If after taking the steps 
 indicated by the Act the employer has not the information 
 at hand to bring in a predecessor, then he may prove that 
 the disease was not contracted in his employment. If he 
 has this information, that proof will not avail unless he 
 brings the proper person before the tribunal. 
 
 The workman is not concerned in the first instance with 
 his employers' contention inter se whether any one of them is 
 entitled to exoneration (a) or to contribution. (&) The claims 
 to indemnity or to contribution are provided for as separate 
 cases. If the employer proceeded against disputes that the indemnity. 
 disease was contracted whilst the workman was in his 
 service and alleges that it was while in the service of 
 another employer, such employer is to be added as a re- 
 spondent, (c) The workman has his right to compensation 
 
 (a) S. 8 (1) (c) (ii). Ante, 313. (6) S. 8 (1) (c) (iii). 
 
 (c) W. 0. R. 1907, r. 39 (4) (a). Post, 738. 
 
360 Workmen's Compensation Act, 1906 
 
 Chap. VII. against employer No. 1 till the liability of employer 
 No. 2 is established. Then No. 1 is discharged and No. 2 is 
 substituted as the one against whom the compensation is 
 recoverable. 
 
 Contribution. On the Other hand, if the employer's claim is for con- 
 
 tribution, (a) he may bring in such other employer or 
 employers as third parties under W. 0. E. 1907, 1 9-23, 25 
 and 26 ; and these rules, which apply primarily to indemnity 
 under sees. 4 and 6, are to be moulded to apply to a claim 
 for contribution. 
 
 To make out a case for contribution in this regard the 
 disease must be " of such a nature as to be contracted by a 
 gradual process." Lead, mercury, phosphorus and arsenic 
 poisoning come in this classification, and some at any rate 
 of the diseases named in the Order of 22nd May, 1907. 
 
 Two possible Two meanings of this sub-section at least are possible. It 
 
 constructions of _ 
 
 s. 8 (1) c«) (iii> may mean (1) that in the case of an employment in which 
 working for a twelvemonth is likely to cause disease by a 
 gradual cumulation the compensation payable when a 
 disease of such a nature has befallen a workman is in no 
 case to fall on the last of several employers, but it is to be 
 apportioned amongst them : that in certain employments 
 the burden of the "insurance of industry" should be 
 divided amongst the employers in whose service the work- 
 man had been for the preceding twelve mouths, in such 
 proportions as are determined by the arbitrator. 
 
 Or it may mean (2) that in the case of diseases that are 
 usually contracted by a gradual process, failing proof of the 
 actual incidence of the disease, the employers of the work- 
 man for twelve months past are to divide payment of the 
 compensation between them; but that, though the disease 
 
 (a) S. 8 (1) (c) (iii). Ante, 313. 
 
Industrial Diseases 361 
 
 is " of such a nature as to be contracted by a general Chap. VII. 
 process," if in point of fact in any case this has not 
 happened, and the history of the disease is satisfactorily 
 proved, then only those employers in whose service the 
 disease was contracted or developed are to contribute to the 
 compensation. While the former interpretation is not at 
 all out of character with the provisions of the Act, the latter 
 (this is possibly quite an insignificant coincidence) is more 
 in accord with the principles of the common law. We must 
 besides note that the suggested widening of the principle 
 of compensation is contained in a proviso " which " — the rule 
 is old and well established — "must be construed with 
 reference to the preceding parts of the clause to which it is 
 appended " ; (a,) and by proviso {l) of the same clause 
 "the employer upon proving that the disease was not 
 contracted whilst the workman was in his employment shall 
 not be liable to pay compensation." 
 
 Any difficulty there may be arises from the logical Ambiguous 
 vagaries in the drafting of the Act. " Disease " in this 
 connection is indeed Protean, In the Third Schedule 
 disease is nomen generalissimum, it is a summum genus ; in 
 sec. 8 its meaning oscillates between the summum genus 
 and the infima species. In sec. 8 (1) (i) the meaning is as 
 in the Third Schedule ; later on in the phrase " as if the 
 disease or such suspension as aforesaid were a personal injury 
 by accident " it is an infima species : the particular case of 
 the particular workman whose disablement is the subject of 
 inquiry. In sec. 8 (1) (e) iii. the phrase " if the disease is 
 of such a nature as to be contracted by a gradual process " 
 may indicate either. The better view probably is that 
 there it means : if the particular manifestation of the 
 disease in the case of the workman about whom inquiry is 
 
 (a) Ex paHe Partington, 6 Q. B. 649, 653. 
 B.E.L. . 2 B 
 
362 
 
 Workmen's Compensation Act, 1906 
 
 Haylett v. 
 Vigor k Co. 
 
 Kttles of inter- 
 pretation. 
 
 Chap. VII. being made is in the actual case contracted, etc. ; then it 
 accords with the words cited above from (i) of the same 
 proviso; and the employer who shows that the disease, 
 though capable of being contracted by a gradual process 
 was, in the actual case in arbitration, contracted at a period 
 when the workman was not in the employment may go 
 free of contributing to compensation. Against this there is 
 the further ambiguity in the words " to be contracted " ; if 
 they had been " to be capable of being contracted " they 
 would be clear one way ; if they were " to have been con- 
 tracted " they would be clear the other. 
 
 The rules for the interpretation of statutes applicable 
 are — 
 
 (1) If "the precise words used are plain and un- 
 ambiguous we are bound to construe them in their ordinary 
 sense, even though it does lead to an absurdity or manifest 
 injustice." (a) 
 
 (2) "Where there are ti^o meanings, each adequately 
 satisfying . the meaning (of a statute), and great harsh- 
 ness (6) is produced by one of them, that has a legitimate 
 influence in widening the mind to the other ... it is more 
 probable that the legislature would have used the word 
 ('evade') in that interpretation which least offends our 
 sense of justice." (c) 
 
 The only doubt that can arise is where a disease which is 
 ordinarily of " such a nature as to be contracted by a 
 
 (a) Abley v. Dale (1851), 20 L. J. C. P. 238, per Jervis, O.J. at 235; 
 Capell V. G. W. By. Co. (1883), 11 .Q. B. D. 845, per Brett, M.B., at 348. 
 
 (6) But " great harshness " without ambiguity avails not at all. " I 
 utterly repudiate the notion that it is competent to a judge to modify the 
 language of an Act in order to bring it in accordance of his views of what 
 ia right or reasonable " : per Willes, J., Abel v. Lee, L. E. 6. C. P. 365 at 871. 
 
 (c) Simms v. Registrar of Probates, [1900] A. C. 323, per Lord Hobhouse 
 at 335. See Brett, J.'s three canons of construction in Gover's case, 
 1 Ch. D. 182 at 198. 
 
Industricd Diseases 363 
 
 gradual process " has ia a particular case been proved not Chap. VII. 
 to have been so contracted but to have had its origin in Disea^T^auy 
 definite circumstances in one employment. Is proof of this gr°d™i p^oess 
 admissible under the ambiguity of the words used, or does soTpart'oSiar^ 
 the Act constrain an absolute presumption to the contrary ? 
 In all other cases where the workman is found with the 
 disease but the time of the origin of it is left uncertain, 
 the employers for whom he has worked during, the pre- 
 ceding twelve months are to be liable to make " such con- 
 tributions as, in default of agreement, may be determined 
 in the arbitration under this Act for settling the amount of 
 the compensation." (a) 
 
 In any of the cases we are considering the compensation 
 is to be calculated with reference to the earnings of the 
 workman under the employer from whom the compensation 
 is recoverable. (6) This is presumably the employer who 
 gives wages most beneficial to the workman, that one who 
 has last employed him (c) ; but if he is able to show that 
 the disease was not contracted whilst the workman was in 
 his employment, where insufficient information is furnished 
 by the workman under (i); or where he proves that the 
 disease was in fact contracted whilst the workman was in the 
 employment of another employer under (ii) ; the employer 
 in the first case goes free, and in the second case the com- 
 pensation is recoverable with reference to the earnings of 
 the workman under the employer who is brought into the 
 arbitration by means of the procedure under W. 0. E. 1907, 
 r. 39 (4). 
 
 The employer to whom notice of death, disablement, or 
 suspension is to be given is, as is implied by sub-sec. 1 (c), 
 the one who last employed the workman previous thereto (d), 
 
 (a) S. 8 (1) (c) iii. (6) S. 8 (1) (d). 
 
 (c) S. 8 (1) (c). Ante, 312. {d) S. 8 (1) (e). 
 
364 
 
 Workmen's Compensation Act, 1906 
 
 Onus altered. 
 
 Chap. VII. This will be discussed more conveniently when notice is 
 \ dealt with generally. 
 
 In the Third Schedule (a) there is a column containing 
 a description of the processes which are to be regarded as 
 conducive to the diseases mentioned in the first column ; 
 as, for example, " and handling of wool, hair, bristles, hides, 
 and skins " is regarded as a possible antecedent to anthrax. 
 When, then, any workman has been engaged in any of these 
 processes and is found suffering from anthrax " immediately 
 before the date of disablement or suspension," the common 
 law onus of proof which would require the workman to 
 give prima facie proof of the connection between the two 
 states is abrogated. Post hoc ergo proper hoc is under this 
 statute now the rule in this connection. The presumption 
 is made that the disease arose from the nature of the em- 
 ployment ; and this the employer is put to disprove, if he 
 wishes to contest liability, (b) 
 
 There is an exception to this where the certifying 
 surgeon certifies that the disease, i.e. the particular 
 incidence of disease, was not due to the nature of the 
 employment. There is an appeal from the surgeon's certifi- 
 cate, (c) But if there is no appeal the words of the section 
 would seem to have their natural operation by leaving the 
 common law to apply ; and the workman would be entitled 
 to take on himself the proof that his incapacity did arise 
 from the natiu:e of the employment ; for he is excepted from 
 the benefit of the subsection, but not from any other benefit 
 of the Act. A long way the best course will be to appeal ; 
 for the surgeon is sure at the arbitration to be called against 
 him. But suppose the particular illness is a species of 
 
 {a) Ante, 842. 
 
 (6) S. 8 (2). The rule of the common law and mider this Act of 
 Parliament outside this the section is stated by Collins, M.B., in Pomfret 
 V. Lanos. & Y. Ky. Co., [1903] 2 K. B. 718 at 721 ; explained Fitzgerald v. 
 W. G. Clark & Son, [1908] 2 K. B. at 799. Post, 369. (c) S. 8 (1) (/). 
 
 Appeal from 
 Burgeon's cer- 
 tificate. 
 
Industrial Diseases 365 
 
 anthrax which does not arise from working at any of the Chap. VII. 
 
 processes enumerated in the schedule? There does not 
 
 seem any reason why he is not entitled to recover by virtue 
 of sec. 1 (1) ; he sustains personal injury in his employment 
 by accident arising out of and in the course of his employ- 
 ment. Prove this, and he is within the principle of 
 Brintons, Ltd. v. Turvey. (a) 
 
 But then comes the instance of " lead poisoning ^^^ poisooing 
 
 ^ o or its sequdK, 
 
 or its sequelae," which is to cover " any process involv- 
 ing the use of lead or its preparations or compounds." 
 The schedule, however, contains a limitation : " 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 pro- 
 cesses specified in the regulations or special rules to be 
 periodically examined by a certifying or other surgeon, then 
 in the application of this schedule to that industry the 
 expression ' process ' shall, unless the Secretary of State 
 otherwise directs, include only the processes so specified." (b) 
 Thus any process not so specified is outside the operation 
 of sec. 8. Suppose such a case, and arbitration proceedings 
 commenced under sec. 1, Steel v. Cammell, Laird & Co. (c) 
 is still good law. But by the Order of the Secretary of 
 State of the 21st June " handling of lead or its preparations 
 or compounds " is included. If the process which is outside 
 the schedule, and is not an accident because of Steel's case, 
 is now included there is a right given under sec. S.{d) 
 The same considerations apply in all the other cases. 
 
 (a) [1905] A. C. 230. 
 
 (6) This refers to Factory and Workshop Act, 1901 (1 Bdw. VII. o. 22), 
 ii., Eegulations for dangerous trades, ss. 79-86. For the orders, see 
 Redgrave Factory Acts. (c) [1905] 2 K. B. 232. 
 
 {d) For the practice, see W. C. B. 1907, r. 39. Post, 738 ; and W. C. E., 
 1908, r. 2. Post, 836. 
 
366 Workmen's Compensation Act, 1906 
 
 Chap. VIL Steel v. Oammell, Laird & Co., though still of authority 
 outside this section, is of no avail against an applicant 
 proceeding under it. There the difficulty was to give the date 
 of an illness of the slowly cumulative sort : one contracted 
 by a gradual process. Here by sub-sec. (4) the date of 
 disablement " shall be such date as the certifying surgeon 
 certifies " ; or if he is unable to give a date, then the date 
 of the certificate itself Only in the case of a successful 
 appeal from the certifying surgeon the date is to be filled in 
 by the medical referee ; and where the workman dies and has 
 not got a certificate of disablement, or is at the time of 
 death not in receipt of a weekly payment on account of dis- 
 ablement, the date is the date of death, (a) If the workman, 
 who subsequently dies, has a certificate of disablement, the 
 date of disablement is the date given in the certificate ; and 
 if he was in receipt of a weekly payment under sec. 8 
 (1) (ii), then the date of suspension. 
 
 Hayiettr.^ The interpretation of sec. 8, sub-sees. 1 and 2, came 
 
 before the Court of Appeal in Haylett v. Vigor & Co. (6) 
 The point for decision was whether, in the event of a man 
 dying from a disease which is a sequela of any of the 
 industrial diseases specified in the Third Schedule, it has to 
 be established that the industrial disease is either the proxi- 
 mate or ultimate cause of the death, or whether this is to be 
 assumed in the absence of evidence to the contrary. The 
 Court decided in unison with the general law that evidence 
 of causation must be given. " In short, it must be proved 
 that death was a consequence of lead poisoning in the case of 
 this particular individual, not necessarily a direct or imme- 
 diate consequence, but at least a remote consequence " under 
 sub-sec. 2, which presuppposes death caused by a disease 
 mentioned in the Third Schedule. 
 
 (a) S. 8(4) (a) (b). Ante, 314. (6) [1908] 2 K. B. 837. 
 
Industrial Diseases 367 
 
 Haylett, a painter, worked for one employer for years ; he Chap. VII. 
 then took employment with another and worked for three or HayiettT" 
 four days, when he suffered from signs of lead poisoning. He ^'^°' ^ '^°' 
 went into hospital, but before then all symptoms of it had 
 passed away ; yet he died in a week ; and, as the County Court 
 judge found, from " granular kidney." Granular kidney is a 
 sequela of lead poisoning ; also of gout, of alcoholism' heart 
 pressure, and other complaints. Lead poisoning was not 
 proved to have been the cause of the granular kidney, nor was 
 any cause shown. The County Court judge gave compensa- 
 tion, £260, against the old employers. The Court of Appeal 
 reversed him, and held that the defendants were not entitled. 
 " When once," says Oozens-Hardy, M.E., " it has been 
 proved that death was caused by lead poisoning or its 
 sequels in the sense in which those words must be inter- 
 preted, then the burthen of proof is thrown upon the 
 employers of the deceased painter to make out that death 
 was not due to the nature of the employment at the date of 
 the disablement. It was under this subsection that Messrs. 
 Vigor, who were Haylett's last employers, were relieved 
 from responsibility by the learned County Court judge. 
 This subsection (sub-sec. (2) as to which it was argued that 
 it ' enlarges the scope of the section, and throws upon the 
 employer the burden of proof ') does not create a liability. 
 Its only use is to saddle the liability upon the proper 
 person. It deals only with evidence, and it has no effect 
 whatever until the applicant has brought the case within the 
 operation of the earlier part of the section." " Sub-sec. 2," 
 says Farwell, L. J., " has no application to a case like the 
 present ; it only comes into operation when lead poisoning, 
 or a disease consequent on lead poisoning, has been proved, 
 and it then raises an inference in favour of the claimant 
 that lead poisoning — as either the immediate or ultimate 
 cause of death — being proved, such disease was caused by 
 
368 
 
 Workmen's Compensation Act, 1906 
 
 Chap. VII. employment in work where lead was handled, an inference 
 which is reasonable enough if death is proved to have been 
 due to lead poisoning directly, or as the causa causans, but 
 quite unreasonable if death may more probably or as pro- 
 bably have resulted from gout or alcohol, and no evidence of 
 lead poisoning at all has been given." 
 
 Kennedy, L.J., notices a further point, whether "this 
 sec. 8. applies only to cases in which the 'process' men- 
 tioned in the Third Schedule is carried on under conditions 
 to which the Factory and Workshops Act, 1901, would 
 be applicable. It seems to me that language is used in 
 portions of sec. 8 (1) and (2) which appears to lend support 
 to such a contention; but it is unnecessary to decide the 
 question in the present case, and I mention it only that 
 it may not be inferred from silence in regard to it that I 
 have formed a definite opinion against such an interpre- 
 tation of this portion of the statute." 
 
 The twelve months are to be reckoned as calendar 
 months, (a) At the arbitration the judge or arbitrator is to 
 decide all questions, both between applicant and respon- 
 dents, and also all added respondents, and may make such 
 order as will settle all questions in the arbitration, and such 
 order as to costs as may be just, whether between original 
 or added parties. (6) 
 
 There is further provision for the establishment under 
 safeguards of a mutual trade insurance company for insur- 
 ing against the risks under this section, but with so many 
 preliminaries, safeguards, limitations, and confirmations, 
 that sec. 8, sub-sees. 7, 8, 9, are not likely largely to be 
 used. The rights of workmen to recover apart from this 
 section are unaffected by it. (c) 
 
 Arbitration. 
 
 Mutual Trade 
 Insurance Co. 
 
 (a) 52 & 53 Viot. c. 63, s. 3. See per Brett, L.J., Migotti v. Colvill, 
 4 C. P. D. 238 ; Burner v. Moore, [1904] 1 Ch. 305. 
 
 (6) W. C. B. 1907, r. 39 (4) (a), (b), (c), (d). Ante, 738. (c) Sec. 8 (10). 
 
Course of Employment 369 
 
 Employment. ^^^P- ^^^• 
 
 To bring an accident causing personal injury within the 
 Act, it is not merely necessary that there should be an 
 employment, but the accident must be one " arising out of 
 and in the course of " it. These phrases have separate and 
 distinct valuations, (a) 
 
 The employment covers all that class of acts which Defined. 
 ordinarily or reasonably fall to be done by those engaged 
 in the work assigned to the workman. The expressions 
 " scope of authority " and " course of employment " are 
 synonymous terms ; and an act done in the carrying on of 
 the business entrusted to the workman binds his employer, 
 though it may be beyond any authority actually given to 
 him. (6) 
 
 At the outset we may note that the onus lies on the onm. 
 applicant (e) to prove that the personal injury for which 
 compensation is sought was caused by accident arising out 
 of and in the course of the employment. 
 
 Collins, M.E., says in Pomfret v. Lanes. & Y. Ey. couins, m.r., in 
 Co. {d) : " In the present case, however, the only evidence i-ancs. & y. 
 upon which the learned judge acted, as explained by the 
 principle upon which he acted, was that during the employ- 
 ment of the deceased he met with an accident. That seems 
 to me to be the principle which he applied to the case ; it 
 being once shown or admitted that this occurrence was an 
 accident, and that it took place during the employment of 
 
 (a) Smith v. Lanes. & Y. Ey. Co., [1899] 1 Q. B. lil ; Armitage v. 
 Lanes. & Y. By. Co., [1902] 2 K. B. 178 ; and per Buckley, L.J.,- Fitzgerald 
 V. W. G. Clarke & Son, [1908] 2 K. B. at 799. 
 
 (6) Dyer v. Munday, [1895] 1 Q. B. 742 at 748. Op. Wright v. Glyn, 
 [1902] 1 K. B. 745 — coachman's authority to pledge master's credit for 
 forage. Ante, 138-156. 
 
 (c) Per Collins, L.J., MoNieholas v. Dawson & Son, [1899] 1 Q. B. 
 773 at 778. 
 
 (d) [1903] 2 K. B. 718 at 721. 
 
370 Workmen's Compensation Ad, 1906 
 
 Chap. VII. the deceased, he seems to have thought that sufficient 
 unless the employers gave evidence to the contrary ; in 
 other words, he must have held that it shifted the burden 
 of proof, and threw on the employers the onus of showing 
 that it did not arise out of the employment. In my opinion 
 that is a wrong view. The burden, and the whole burden 
 of proving the conditions essential to the obtaining an 
 award of compensation, rests upon the applicant and upon 
 nobody else, and if he leaves the case in doubt as to 
 whether these conditions are fulfilled or not, where the 
 known facts are equally consistent with their having been 
 fulfilled or not fulfilled, he has not discharged the onus that 
 is laid upon him." (a) 
 
 Mitchell V. In Mitchell v. Glamorgan Coal Co. (b) this is adopted 
 
 Co. by the Court of Appeal, with the addendum that if the 
 
 known facts are equally consistent with either alternative, 
 the plaintiff is not entitled to succeed, because no one could 
 reasonably draw the inference in his favour ; but one's know- 
 ledge of the affairs of ordinary life must be brought to bear 
 to determine whether the known facts are equally consistent. 
 McDonald «. In this conuection McDonald v. Owners of the s.s. 
 
 Owners of _ / \ • - * t-\ 
 
 s.s. Banana. Banana {c) IS an instructive case. Deceased was em- 
 ployed as a " donkeyman " in the s.Sr Banana. When 
 the ship was at Bremerhaven he went ashore. On re- 
 turning he slipped off the gangway leading to the ship 
 and fell into the water, striking his head as he fell ; 
 from which injury he died. The only evidence of how 
 the accident happened was an extract from the ship's log- 
 book. The Deputy County Court judge was of opinion 
 
 (a) By s. 8 (2) a modification of this rule is applied to casea under the 
 section. Ante, 364. 
 
 (6) 23 T. L. B. 688. See Grant ii. Glasgow & S.-W. Ey. Co., 45 So. L. E. 
 128 — workman found killed where probably performing duty. 
 
 (c) [1908] 2 K. B. 926 ; 24 T. L. E. 887. 
 
Course of Employment 371 
 
 that a conclusion could be drawn from this consistent either Chap. VII. 
 with the deceased having met his death by accident arising McDoi^i^«. 
 out of the employment or otherwise. In these circum- 8.™JonaL. 
 stances "he thought that he was entitled to draw the 
 inference that the deceased was returning to the ship in 
 pursuance of an obligation so to do> and that the accident 
 occurred by reason of the risk naturally incident to his 
 occupation, and arose out of and in consequence of his 
 employment." The Court of Appeal upset his award in 
 favour of the widow. " There seems to be no presumption 
 in favour of one view rather than of another, and that is 
 precisely the position that was dealt with by the House of 
 Lords in Wakelin v. L. & S.-W. Ey. Co., 12 App. Gas. 41." (a) 
 " There being no such presumption as that suggested, the 
 onus in the present case is upon the applicant to show that 
 the accident arose out of, as well as in, the course of the 
 employment of the deceased." " The accident," said 
 Oozens-Hardy, M.E.,(6) " in the present case did not happen 
 on the ship, although the man was very close to the ship 
 on his way back. I have stated three possible events. If 
 he was sent ashorfe on a ship's errand, he would be within 
 the Act. If he went ashore without leave, he would plainly 
 not be within the Act. If he went ashore, not on a ship's 
 errand, but with leave and for his own pleasure, I think he 
 would equally not be within the Act. To give an illus- 
 tration which possibly appeals to most of us, if I send my 
 domestic servant in the evening with a letter to a friend 
 and he is knocked down by a motor omnibus on his way to 
 or from my friend's house, I should be liable. If, however, 
 he, having a night off, goes — as he is at full liberty to go — 
 to the Franco-British Exhibition for his own amusement 
 and meets with an accident at the same spot, I take it I 
 should not be liable." 
 
 (o) Per Farwell, L.J., I. c. 930. (6) L. c. 929. 
 
372 Workmen's Oompensaiion Act, 1906 
 
 Chap. VII. Whether an accident is one " arising out of or in course 
 Question of fact, of an employment " must be largely a question of fact. In 
 ordinary cases it is obvious that an accident occurring (e.g. 
 when a workman is on the top of a tramcar or in a railway 
 train, on his way to his work) is not more an accident in 
 the course of his employment or arising out thereof than is 
 one occurring while he is getting up in the morning or 
 having his breakfast. 
 
 On the other hand, where men left their work in a mine 
 and were going off in a body for their own purposes to 
 make a complaint to the manager when an accident hap- 
 pened by which one of them was injured, the House of 
 Lords decided that the employer who let the men down 
 into the mine was bound to bring them up, even if they 
 leave their work and wish to come up for their own 
 business, (a) 
 
 Again, where the terms of the employment are that the 
 workmen are to travel up and down a railway line for the 
 purposes of their work, any accident which happens to them 
 in their transit is clearly in the course of their employment.(6) 
 Principle. The principle is well stated by Mr. Labatt (c) though 
 
 dealing with a different aspect of the subject, so that some 
 adjustment of his language must be made. "It is clear 
 that the defence of common employment is not available to 
 
 (a) Brydon v. Stewart, 2 Maoq. (H. L. So.) 30. 
 
 (h) Tunney v. Midland By. Co., L. E. 1 0. P. 291. The same point is 
 decided in the Massachusetts case of Gilshannon v. Stony Brook By. Cor- 
 poration, 64 Mass. 228. Op. Rohl. v. Metropolitan By. Co., 7 T. L. B. 2 ; 
 and the Scotch case, Sweeney i). M'Gilvray, 14 B. 105. For the facts of 
 this last case, see ante, 203. The judgment of Judge Owen in Holness v. 
 Macliay, 106 L. T. newspaper 418, contains a full discussion of the law in 
 this connection. Vickery v. G. E. By. Co., 14 T. L. B. 562, is an insurance 
 case. The death was caused while going to the employment in a way that 
 was forhidden. Williams v. Penrikyber Navigation Colliery Co., 19 T. L. E. 
 490, is a case where it was a term of the contract that miners should be 
 down in the mine by 7 a.m. See Labatt, M. and S. 1832. The point was 
 made in Coldrick v. Partridge, Jones & Co., Ltd., 24 T. L. E. 646, but was 
 not decided, 649. 
 
 (c) Master and Servant, 1832. 
 
Course of Employment 373 
 
 the master where the injured person was travelling entirely Chap. VII. 
 
 for his own purpose, and the right of the master to exact 
 
 the performance of service was not merely dormant, but 
 wholly superseded." 
 
 If an accident arises out of the employment, the work- 
 man is entitled to compensation under the Act, even 
 although it is due to the misconduct of a stranger. This 
 right conferred upon the workman is regulated by sec. 6. (a) 
 
 There is no such right where the stranger has taken the wufui act. 
 occasion of the workman being engaged in the employer's 
 work to injure him by a wilful act ; since, though the time 
 at which the injury happens would bo while the workman 
 is engaged in the. employment, the injury would neither 
 arise out of nor be in the course of the employment. (6) 
 
 In Smith v. Lanes. & Y. Ey. Co. (e) the Court of Appeal Not arising out 
 
 of employment. 
 
 held that to bring a case within the Act " it is necessary to 
 show an employment to which the Act applies, and also 
 that the accident which caused the injury was one arising 
 out of and in the course of such employment." The facts 
 showed that a man employed to collect tickets having 
 finished collecting them from the passengers by a train, 
 after the train had started got on the footboard to speak to 
 a woman passenger in a carriage, not " for any object of his 
 employers, but for his own pleasure " ; in doing so he 
 caught his foot and was killed. The accident was held not 
 
 (o) Ante, 308. 
 
 (6) Cp. In re Pryoe, ex parte Eensburg, 4 Oh. D. 685. This is a decision 
 under the Bankruptcy Act, 1869, s. 15, sub-s. 5, on the words " debts due 
 to the bankrupt in the course of his trade," and thus only very indirectly 
 bearing on the point noticed in the text. 
 
 (c) [1899] 1 Q. B. 141 at 143. Smith «. Lanes. & Y. Ey. Co. is commented 
 on and explained in MoNioholas o. Dawson & Son, [1899] 1 Q. B. 773. 
 With these cp. Durham v. Brown Bros. & Co., 36 So. L. E. 190; and 
 Callaghan v. Maxwell, 37 So. L. R. 313 ; PuUerton, Hodgart & Barclay v. 
 Logue, 38 Sc.i L. R. 738 ; 3 P. 1006 ; Reed v. G. W. Ey. Co. in H. of L., 
 25 T. L. E. 36. 
 
374 Workmen's Compensation Act, 1906 
 
 Chap. VII. to arise out of the employment, and the defendants con- 
 
 sequently were not entitled to recover under the Act. 
 Goodiet 1). The Scotch case of Groodlet t. Caledonian Ry. Co. (a) 
 
 Co. illustrates most clearly the principle at the bottom of 
 
 Smith's case. An engine-driver having brought his train 
 into the station about 10.10 p.m., was ordered to take his 
 engine into a particular " lye " there. Having done so, he 
 crossed some four or five sets of rails to ask why he had 
 been ordered to put his engine in the particular "lye," 
 which was an unusual one, and thinking there might be 
 some mistake. His next duty was to take out a train at 
 11 p.m. After inquiring about his engine, he crossed two 
 more sets of rails to a spot about twelve or thirteen yards 
 further off from his engine to speak to B., another employe 
 in the Company's service. What he had to say to B. was 
 merely casual conversation, lasting for a moment or two, 
 and had nothing to do with his duties as an engine-driver. 
 Immediately after leaving B., and while he was on his way 
 back to his engine, he was knocked down by an empty 
 train, which was being shunted. The Court of Session held 
 that the accident arose out of and in the course of the 
 . employment. The Lord Justice Clerk distinguished Smith's 
 case : There the ticket collector " was not, at the time, 
 acting in the employment of his master, and, moreover, was 
 exposing himself to danger which was palpable to him." 
 
 Lowe V. Pearson. The Court of Appeal in Lowe v. Pearson (h) held the 
 following facts not to bring the accident arising therefrom 
 within the words " out of and in the course of the employ- 
 ment." A boy was employed in manual labour in pottery 
 works. His duty was to make clay balls and hand them to 
 
 (a) (1902) 4 F. 986. Cp. Harrison v. Whitaker Bros., Ltd., 16 T. L. E. 
 108 ; Hendry v. Caledonian By. Co., [1907] S. 0. 732, where Goodlet's case 
 was distinguished. 
 
 (6) [1899] 1 Q. B. 261. 
 
Gov/rse of Employment 375 
 
 a woman who worked at a machine. The boy had nothing Chap. VII. 
 
 to do with the machine, and was expressly forbidden to 
 
 interfere with it. The woman, being in want of clay, went 
 
 for some. In her absence the boy attempted to clean the 
 
 cones of the machine. His fingers were caught in the 
 
 machine, and he suffered injury, A. L. Smith, L.J., based 
 
 his judgment on the facts that the boy was ordered not to 
 
 touch the machine, that he knew he was not to touch it, 
 
 and that "he was solely employed in manual labour in 
 
 making clay balls, and had nothing to do with the machinery 
 
 at all." 
 
 The County Court judge had held that the boy knew it 
 was against orders for him to clean the cones, and that he 
 went about its cleaning in a careless and reckless manner, 
 yet that his action was prompted by a desire to further the 
 work, and that his conduct did not " amount to serious and 
 wilful misconduct." A. L. Smith, L.J., remarks as to this : 
 " The County Court judge has found that the respondent 
 was not guilty of ' serious and wilful misconduct,' because 
 he did what he did with a view of furthering the work ; but 
 it does not appear to me that the finding is of any im- 
 portance as bearing on the first question whether the 
 accident arose out of and in the course of the respondent's 
 employment." 
 
 Lowe V. Pearson was fruitlessly prayed in aid in whitehead «. 
 
 Reader. 
 
 Whitehead v. Reader (a) and was much discussed there. 
 A workman was employed as a carpenter, and part of his 
 duty was to sharpen his tools on a grindstone rotated by 
 machinery. He had had orders not to touch the machinery ; 
 but the driving band having slipped, he endeavoured to 
 
 . (a) [1901] 2 E. B. 48. Smith v. South Nonnanton ColHery Co., [1903] 
 1 K. B. 204, one of those numerous cases where the Ooimty Court judge's 
 finding was upheld because " there was evidence upon which he was entitled 
 to find as he did." 
 
376 Workmen's Compensation Act, 1906 
 
 Chap. VII. replace it and was injured. The man's act was held not 
 necessarily outside the employment and disentitling him 
 to recover. The principal value of the case is from ex- 
 pressions in the judgments. "It cannot be said that 
 every disobedience of an order terminates a man's employ- 
 ment. Disobedience may or may not give a defence to 
 a master under the clause relating to serious and wilful 
 misconduct. "(a) "It cannot be said that every dis- 
 obedience of an order terminates a man's employment so 
 as to excuse the master from the consequences 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 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 em- 
 ployment without such an order, his acts do not make the 
 master liable." 
 
 In the Nuneaton County Court, in the case of Matthews 
 V. Bedworth Brick, Tile and Timber Co., Ltd., (6) Judge 
 Wightm9,n Wood held the applicant entitled to compensa- 
 tion where her husband had been killed when descending 
 a shaft to rescue a fellow-workman who had been over- 
 powered by choke-damp, "because, although he [the 
 deceased workman] was not acting under any direct order 
 to do what he did, he was acting under a reasonable belief that 
 his employers would have wished him to do what he did." 
 This ground of decision seems within the principle enunciated 
 
 (a) Per Smith, M.E. at 50. 
 
 (6) 106 Law Times newspaper, 485. 
 
Gcmrse of Ew/ployment 377 
 
 in Lowe v. Pearson, (a) and reiterated in Eees v. Thomas, (&) Chap. VII. 
 
 "of a servant, while in his master's employ, doing upon 
 
 an emergency something outside the scope of what he was 
 employed to do in the interests of his master." The learned 
 County Court judge thus pats his point : " It [the act which 
 cost the deceased his life] was done not only for the benefit 
 of the man for whom he went down, but also for the benefit 
 of his employers, who would certainly have sustained con- 
 siderable pecuniary loss if the man who fell first had been 
 allowed to be there and had lost his life." This view 
 assumed a not unimportant point as to what is " serious 
 and wilful misconduct." The man who fell first was warned 
 by the superintendent not to descend the shaft " without 
 first testing the air." The man replied, " Old man, we 
 know our business," and descended wilfully and recklessly, (e) 
 But under the Act of 1906 the assumption is irrelevant ; and, 
 though the process of the reasoning is grotesque, the con- 
 clusion in carefully chosen instances is sound, (d) 
 
 Neither is there any right to compensation on the part Possible cases. 
 of the workman under the Act when the injury is done by 
 an accident in some adjacent premises to those in which 
 he is working and the consequences of which extend to 
 the employment in which he is working, as they might 
 have extended to him had he been elsewhere and have had 
 merely an incidental connection with the business ; for the 
 personal injury does not arise out of the employment in the 
 sense of the Act. Because the injury results during the em- 
 ployment it can undoubtedly be said that the accident occurs 
 " in the course of the employment " ; it may also, in a sense, 
 
 {a) [1899] 1 Q. B. 261. 
 
 (6) [1899] 1 Q. B. 1015. 
 
 (o) Cp. Senior v. Ward, 1 E. & E. 385. 
 
 ((J) Ante, 91. London and Edinburgh Shipping Oo. v. Brown, 7 
 P. 488. Post, 386, and Mullen v, Stewart, 45 So. L. B. 729, and post, 388 
 et seqq. 
 
 B,E,L, 2 
 
378 Workmen's Compensation Act, 1906 
 
 Chap. VII. be true that the accident arises out of it, in so far as the work- 
 man is engaged in propinquity to the agency that causes 
 the accident ; but this is not enough ; the accident must be 
 caused by operations within the scope of the employment 
 and not by others with which the employer has no con- 
 cern, (a) An injury, for instance, caused by men larking, 
 or by independent trespassers, or by one workman with a 
 grudge against another, would not be within the Act. The 
 case of a workman injured by machine breakers or strikers 
 would seem different. So would that of a steeple jack 
 blown down by a high wind. " The statute does not pro- 
 vide an insurance for the workman against every accident 
 happening to him, while he is engaged in the employment 
 of his master, but only against accident arising out of and 
 in the course of that employment." (6) 
 M'l^tyre »• The other side of this principle is seen in M'Intyre v. 
 
 A. Eodger. (e) Applicant was oiling his machine with a brush 
 not belonging to the machine he was at but to that of another 
 workman, who came up and demanded the brush, which he 
 pulled from the applicant's hand, and in so doing injured 
 applicant. The applicant was held entitled to compensation 
 in respect of an injury arising out of and in the course of his 
 employment. An engine driver injured by a stone inten- 
 tionally dropped by a boy from a bridge over the line was 
 held to be injured by an accident " arising out of" the engine 
 driver's employment. (<?) «I should," says Cozens-Hardy, 
 L. J., (e) " hesitate to say that an accident due to stone throw- 
 ing by a stranger would in the case of every employment come 
 
 (a) Falconer v. London and Glasgow Engineering, etc., Co. 3 P. 
 564, followed Armitage v. Lanes. & Y. Ey. Co., [1902] 2 K. B. 178 which 
 was followed in Wm. Baird & Co., Ltd. v. Burley, 45 So. L. R. 416 :' a case 
 ?„^*^,^ ',*''? ^^^ followed and approved by the 0. of A. in Fitzgerald v. 
 W. G. Clarke & Son, [1908] 2 K. B. 796. g aau . 
 
 (6) Per Collins, M.R., Armitage v. L. & Y. Ey., [1902] 2K. B. at 181. 
 
 (c) 6 F. 176. 
 
 (d) Challis V. L. & S.-W. Ey. Co., [1905] 2 K. B. 154. (e) L. c. 159. 
 
Course of Employment 379 
 
 within the Act. I am not, however, prepared in this case . . . Chap. VII. 
 to disregard what is common knowledge, namely, that the 
 offence of throwing stones at trains from bridges and other 
 places by boys is of frequent occurrence. It seems to me 
 that the risk of such an occurrence is one which may 
 reasonably be looked upon as incidental to the employment 
 of an engine driver, though it might not be incidental to 
 other employments." 
 
 The same view was taken in Andrew v. Failsworth Andrew v. 
 Industrial Society, (a) JChe workman there was injured by industrial 
 lightning while "working on a scaffolding at a height 
 of about twenty-three feet from the ground on a building 
 which his employers were engaged in erecting." Evidence 
 was given that this was "a very exposed position." "If 
 it is wet the danger is increased." " A man working on an 
 elevated scaffold runs an appreciably greater risk from that 
 fact." Collins, M.R., thus states the principle applicable : 
 "Though it may not be connected with, or have any 
 relation to the work the man was doing, yet, if in point 
 of fact the position in which the man was doing the work 
 and the place he must necessarily occupy whilst doing the 
 work are a position and a place of danger which caused 
 the accident, it may fairly be said that it arose out of 
 the employment, not because of the work, but because 
 of the position"; and this modification must be taken as 
 involved in the statement of the general principle. (6) 
 
 A night watchman injured by the fall of a shanty 
 (wherein, because of the rain, he had lighted a fire to cook 
 a chop) is injured in or about his employment though he 
 ought not to have lighted a fire there at all. (e) 
 
 {a) [1904] 2 K. B. 32. 
 
 (6) Ante, 377. 
 
 (c) Morris v. Mayor, etc., of Lambeth, 22 T. L. R. 22. 
 
380 Workmen's Gorrvpensation Act, 1906 
 
 Chap. VII. A case where the facts are like they were in Smith 
 V. Baker {a) would undoubtedly fall within the Act; but 
 that would be by, virtue of the danger causing the accident 
 being within the employment. The case of Johnson v. 
 Lindsay (6) would also appear to be a case provided for. 
 There a condition of the working is that it is carried on in 
 conjunction with the workmen of other employers ; so too in 
 Woodley v. Metropolitan Ey. Co. (c) The provisions made 
 by the Act for injuries inflicted by outsiders ((^)must be such 
 as arise " out of and in the course of the employment." 
 
 Effect of sec. 6. The effect of sec. 6 is very difficult to define, but it 
 
 does not extend to cases where injury has arisen from 
 negligence in the exercise of rights of property by adjacent 
 owners ; and will not be extended beyond such acts as 
 would ah ante have been regarded, by a reasonable man 
 whose attention was turned to the matter, as incidents 
 likely to be attendant on the conduct of the work for which 
 he engages himself. There must be personal injury arising 
 out of or in the course of the employment, which alone is 
 " injury for which compensation is payable under this Act." 
 
 injuricB As an abstract proposition it is not correct to say that 
 
 Bustalned while ... .ii i.i- i. 
 
 going to work, mjuries sustamcd by a man while gomg to his employment 
 arise out of his employment, or on, in or about the railway, 
 factory or other locality wherein he exercises his employ- 
 ment, (e) To include these there should be circumstances 
 to the contract which bring in things happening before 
 the hour at which the work is to commence, and not on 
 the site of the work. Thus, if workmen have an option 
 whether they use a train belonging to the employer from 
 their work to their homes, and one of them, using the 
 
 (a) [1891] A. C. 325. (6) [1891] A. 0. 371. 
 
 (c) 2 Ex. D. 384. (d) S. 6. Ante, 308. 
 
 (e) Holuess v, Maokay & Davies, [1899] 2 Q. B. 319. 
 
Course of Employment 381 
 
 means of conveyance offered, is injured thereby, Ms accident Chap. VII. 
 has been held not to be one arising out of and in the course 
 of the employment. He went home by a way he was not 
 bound to take ; and was under no duty to his employers 
 at the time of the accident; and in no sense could the 
 accident be said to have been connected with his employ- 
 ment, (a) It is, however, otherwise where the conveyance 
 is a term of the contract of employment, as it was held 
 to be in Holmes v. Great Northern Ry. Oo. (&). An engine 
 cleaner who was engaged at King's Cross was directed 
 to work at Hornsey, whither he travelled by train ; then 
 he proceeded to cross the line to get to the engine shed 
 where he worked, but was killed by an express train. The 
 contention of the employers was that the injury did not 
 arise in the employment ; and reliance was placed on 
 Holness v. Mackay & Davies (c) to show that the employ- 
 ment did not commence till the hour of actual work had 
 arrived, that is, 6 a.m. ; while it was admitted that the train 
 reached Hornsey at 5.45 a.m. The County Court judge 
 took the view that the accident happened while the work- 
 man was going to the particular place on his employers' 
 premises where he had to work, and that the beginning 
 of the employment was at King's Cross. This view com- 
 mended itself to the Court of Appeal. 
 
 If it be found as it was in the case just cited, {d) that 
 it was no part of the contract of employment that the 
 employment should include the time taken in getting to 
 and from work, and that the employers had performed their 
 duty when they obtained a licence to their workman to go 
 
 (a) Davies v. Ehymney Iron Co., Ltd., 16 T. L. E. 329; Oaton v. 
 Siunmerlee and Mossend Iron and Steel Co., Ltd., 4 P. 989. 
 
 (6) [1900] 2 Q. B. 409. 
 
 (c) [1899] 2 Q. B. 319. 
 
 (d) Holness v. Mackay & Davies, swpra. 
 
382 
 
 Worhmen's Compensation Act, 1906 
 
 CreminB v. 
 G-uest, Keen, & 
 Nettlefolds. 
 
 Chap. VII. over the railway company's premises, the zone of danger 
 in that case, there is no obligation to take measures for 
 their safety in traversing it. This was under the Act of 
 1897. Under the Act of 1906 the limitation "on, in or 
 about " premises is abolished ; there is no restriction now 
 as to the place. The only consideration is whether the 
 accident arises "out of and in the course of the employ- 
 ment " ; and on the assumption there made the case still 
 remains an authority. 
 
 This brings us to the earliest case under the Act of 
 1906, Cremins v. Guest, Keen, & Nettlefolds, Ltd., (a) 
 where colliers who resided six miles from their work were 
 conveyed to and from their work " free of charge," and " as 
 an implied term of the contract of service." A workman 
 who was injured while on the platform waiting for the train 
 was held injured in the course of his employment. " To 
 avoid misconception," says Cozens-Hardy, M.R., " I desire to 
 say that I base my judgment on the implied term of the 
 contract of service, and that it by no means follows that 
 every workman is entitled to the protection of the Act 
 whenever an accident happens to him on his way from his 
 home to his employers' place of business." 
 
 The distinction is that indicated above : if the master 
 has control there is responsibility, if not there is none. 
 This is illustrated by what Collins, M.E., says in Sharp 
 V. Johnson & Co. (&): "It clearly appears to have been 
 decided both in this Court and the House of Lords in Cross, 
 Tetley & Co. v. Catterall (c), that the moment at which the 
 actual work of the workman begins cannot be taken as the 
 true moment of the commencement of his employment 
 for the purposes of the Act. Lord Halsbury, C, appears 
 
 (a) [1908] 1 K. B. 469. (6) [1905] 2 K. B. 139 at 145. 
 
 (c) Not reported. 
 
 Sharp V. 
 Johnsou & Co< 
 
Course of Employment 383 
 
 to have said in that case that it was not correct to say that Chap. VII. 
 the employment of a miner did not begin till he struck coal 
 with his pick, and that the workman there was doing some- 
 thing on behalf of his employers, as being essential to the 
 work which he was employed to do when going to the lamp- 
 cabin to get his lamp. It was there held that the employ- 
 ment commenced as soon as the workman crossed the 
 boundary line of the employers' premises, though he had 
 to do something after getting over that boundary before he 
 could commence actual work. So the moment of beginning 
 the actual work is not the true test of the time when the 
 employment commences." 
 
 In Benson i'. Lanes. & Y. Ey. Co. (a) a workman went Benson ». 
 
 t t ■ 1 • 1 Ik ^ ~ Lanes. & Y. Ry, 
 
 to a Signal box m the midst oi the permanent way, not for co. 
 his employers' business, but to make an inquiry on his own 
 account, and while returning was injured. The accident was 
 held not to arise out of or in the course of the employment. 
 
 In Sharp v. Johnson & Co. (6), the workman was iniured sharp «. 
 
 '^ ■" Johnson & Co. 
 
 while depositing a check ticket before beginning work, 
 and the accident was held to arise out of the employ- 
 ment, (e) The distinction is between the man pleasing 
 himself and adyancing his employers' business. Haley v. Haicy ». united 
 United Collieries (c?) is a case where both considerations 
 were present. There had been a breakdown a't the pit 
 where the applicant had been working. The applicant 
 went to inquire when work would be resumed, and to draw his 
 advance wages. He was held not entitled to recover because 
 he was injured while leaving the mine by a short cut and not 
 by the " provided exit." As Lord Pearson put the point (e) : 
 " The crossing the lye where the accident took place was no 
 more in the course of his employment than if, in making 
 
 (a) [1904] 1 K. B. 242. (6) [1905] 2 K. B. 139. (c) [1905] 2 K. B. 139. 
 
 (d) [1907] S. C. 217 ; Beed v. G. W. Ey. Co. in H. of L., 25 T. L. E. 36. 
 
 (e) i.e. 217. 
 
384 
 
 Workmen's Compensation Act, 1906 
 
 Lowry u, 
 Sheffield Coal Co. 
 
 Workman 
 trespasser. 
 
 Chap. VII. his exit, he had crossed his employers' wall by climbing or 
 their canal by swimming." 
 
 In Lowry v. Sheffield Coal Co. (a) an injury received 
 while going to the pay office to receive wages due was held to 
 be one arising out of and " in the course of the employment." 
 Cozens-Hardy, M.E., thought « it was just as much part of 
 his (the injured workman's) employment to go to the pay 
 office ... as it was to go down to the pit on the following 
 Sunday night." 
 
 A variation of the circulnstances is provided where the 
 workman, in order more speedily to get to his work, 
 trespassed on other premises and was injured. His work 
 was to paper the ceiling of a church. On his arrival he 
 found the door locked. To gain access he climbed the iron 
 railings of a neighbouring school yard. A spike pierced his 
 foot, and from the effects of the wound he died. The Lord 
 Justice Clerk puts the point tersely : " He had not reached 
 the ' factory ' ; and was taking his own way of coming to it ; 
 the accident could not therefore arise out of and in the 
 course of his employment." Lord Moncreiff doubted ; yet 
 it seems reasonably plain that the injury was not received 
 in the course of the employment, (b) 
 
 Equally plain is the case of the engine driver, part of 
 whose duty was to report himself before leaving work, and 
 who was injured whilst doing so. The accident was in the 
 course of the employment, (c) 
 
 It has further been held that a miner's employment 
 has commenced when he has obtained his pit lamp and his 
 " tallies," and is waiting at the pit brow to descend, (d) 
 
 (a) 24 T. L. B. 142. 
 
 (6) Gibson v. WUaon, 3 P. 661. 
 
 (c) Tod V. Caledomaii Ry. Co. (1899), 1 P. 1047; approved Mackenzie 
 V. Coltnesa Iron Co., 6 P. 8. 
 
 (d) Pitzpatriok v. Hindley Pield Colliery Co., Law Times newspaper, 
 lath April, 1901, 3 W. 0. C. 87, afarmed in C. of A., 4 W. 0. 0. 7. 
 
 Doty tio report 
 before leaving 
 work. 
 
Course of Employment 385 
 
 A benignant view of the facts originally secured for the Chap. VII. 
 widow her coiapensation in Douglas v. United Mineral jj„„ ^^ 
 Mining Co., Ltd. (a) A collier leaving a mine induced aMillgl""" 
 boy by a trick to wind him up by a shaft used only for 
 . pulling up tools, but dangerous for men. The boy had 
 refused to wind him up, saying he should only wind up the 
 tools. "Go on, then," said the man. The boy, thinking 
 he was winding the tools, began to wind. When near the 
 top the man called out " Higher up." The boy was startled, 
 let go, and hence the accident. The Court of Appeal 
 agreed with the County Court judge that the accident arose 
 out of and in the course of the employment. They were of 
 opinion that there was evidence for the finding of the judge 
 on the question of " serious and wilful misconduct," which 
 they therefore could not disturb. Collins, L.J., observed 
 that he " would not have interfered if the County Court 
 judge had found the other way." The evidence was that 
 men frequently left the mine in this manner, though never 
 when an overman was present. The practice was known to 
 be prohibited, but no actual notice was posted forbidding 
 the use of the shaft to men. (6) 
 
 An accident may readily be attributable to the negli- Negligence 
 
 irrelevant. 
 
 gence or fault of the injured, and none the less on that score Durham d. 
 arise out of and in the course of the employment. This is 
 clear from the provisions as to serious and wilful mis- 
 conduct, (c) That work is done in a wrong way conveys no 
 valid suggestion that the workman was not engaged in his 
 proper employment ; not even if the way is a dangerous one, 
 
 (a) Times newspaper, SOth Feb., 1900, 2 W. C. 0. 15. 
 
 (5) Cp. the Scotch case of Logue v. FuUerton, 3 F. 1006. The decision 
 turned on the absence of a finding that the workman's attention had been 
 called to a rule forbidding the use of a hoist. 
 
 (c) S. 1, sub-s. 2 (c). Ante, 300. Post, 394. 
 
386 Workmen's Compensation Act, 1906 
 
 Chap. VII. provided the danger encountered falls short of inferring 
 
 serious and wilful misconduct, (a) 
 Lowe V. Pearson TMs principle Came in conflict with the principle asserted 
 
 and Whitehead r r jr x 
 
 diete^Tshed, ^^ ^o^^ ^- Pearson (6) in Whitehead v. Keader. (c) A 
 carpenter when requisite sharpened his tools on a grind- 
 stone, rotated by machinery. He was forbidden to touch 
 the machiaery, but the band rotating the grindstone having 
 come off he endeavoured to replace it, and injured his hand. 
 The County Court judge found that the accident arose out 
 of and in the course of the employment of the workman, 
 and that Lowe v, Pearson did not apply. There a boy was 
 injured who had been told not to touch a certain machine. 
 In doing so he acted outside the scope of his employment. 
 In the present case the workman was at his proper business. 
 On an emergency instantly arising and on the impulse of 
 the moment he interfered with the machinery. This was 
 neither outside his employment nor yet wilful and serious 
 misconduct, (d) 
 
 but followed in Lowc V. Pearsou was followed iu Losh v. Richard Evans & 
 
 Losh V. Bichard 
 
 Evans k Co. Qq^ (g) Applicant was a girl of eighteen, whose duty it was 
 to pick dirt out of coal as it passed along a band. The 
 man in charge of the engine being temporarily absent, the 
 girl started the engine, which some of the girls who were 
 
 (a) ,Durham v. Brown, 1 P. 279, per Lord Kinnear : " It does not seem 
 to be arguable that a man ceases to be in the course of his employment 
 because he takes a wrong or dangerous method of doing what might be 
 done safely, if it was to be done at all." 
 
 (6) [1899] 1 Q. B. 261. Ante, 374. 
 
 (c) [1901] 2 K. B. 48. Cp. Beeks v. Kynoch, Ltd., 18 T. L. R. 34, 
 where the injured boy " acted on a sudden impulse " in picking up an 
 uncut screw which had fallen from its place and was injured by a circular 
 saw. The " element of wilfulness did not enter at all into what he did " ; 
 so he was entitled to recover. 
 
 (d) Cp. Guthrie v. Boase Spinning Co., 38 So. L. E. 483, where " serious 
 afid wUful misconduct " was found. * 
 
 (e) 19 T. L. R. 142 ; Goslau v. James Gillies & Co., [1907] S. 0. 68, 
 where Lord Kinnear says at 72, " It seems a narrow understanding of the 
 contract of employment to say that he [the injured man] went beyond his 
 duty in giying a helpful hand to others." 
 
Course of Employment 387 
 
 working with her told her not to touch, though others of Chap. VII. 
 them at times stopped and started the engine. The County 
 Court judge found as a fact that it was not her business to 
 touch the engine. The Court of Appeal held that there 
 was evidence to question this finding ; but Mathew, L.J., 
 dissented on the ground that there was no express pro- 
 hibition to the injured girl against doing the act that caused 
 the injury ; and, moreover, that it was customary for the 
 girls to do so in the absence of the man in charge. The 
 question whether and how far one sphere was marked oif 
 from another is a question of fact. 
 
 In Smith v. Normanton Colliery Co. (a) a boy was sus- smith v. 
 
 •' ^ ' •' Normanton 
 
 pended from work and told to go to the bottom of the pit. He Coiuery co. 
 
 did not do so, but remained in a " pass by," where two hours 
 
 later he was injured. The County Court judge held that the 
 
 accident did not arise in the course of the employment. 
 
 The Court of Appeal held that there was evidence from 
 
 which he might so find ; but " it appears to me (6) to be 
 
 a question of fact where the line is to be drawn, but there 
 
 must be some line beyond which the liability of the employer 
 
 cannot continue." The boy was " where prima facie he had 
 
 no business to be." Yet where a workman remained on the ^}27™' *• 
 
 premises during the dinner hour and ate his dinner under 
 
 a wall which he had been building, and while so engaged 
 
 the wall fell upon him, the accident was held by the Court 
 
 of Appeal to have arisen in the course of the employment, (e) 
 
 " We must take a broader view, and treat him as continuing 
 
 in the employment of the master by the consent of the 
 
 master, inasmuch as it is for the master's advantage that the 
 
 workman should have an opportunity to feed himself. 
 
 A workman would do his work all the better by taking his 
 
 (a) [1903] ,1 K. B. 204 ; 72 L. J. K. B. 76. 
 
 (6) CoUins, M.B., at 207. 
 
 (c) Blovelt V. Sawyer, [1904] 1 K. B. 271. 
 
388 Workmen's Compmisation Act, 1906 
 
 Chap. VII. meal at that time, and if it is part of the contract between 
 him and his master that he may do so upon the .works 
 instead of going away, that may be a matter of mutual 
 convenience." This somewhat " refined reasoning " dwindles 
 away thus : " It does not seem . . . that as a matter of law 
 it can be said that, when sitting down to his dinner, the 
 applicant had ceased to be in his master's employment." 
 The Scotch cases follow the same lines, and so do the 
 
 &otch and Irish Irish, (a) Thus, in Keenan v. Memington Coal Co., (6) a 
 miner went to the boilers to get a drink of water. In 
 returning he was struck by a runaway hutch and killed. 
 The accident arose out of and in the course of his employ- 
 ment. In Powell V. Lanarkshire Steel Co. (e) again, it was 
 assumed that a half-an-hour's rest that was allowed a boy 
 between two jobs was not a break in his employment. 
 
 ^ewart&co. Mullen V. Stewart & Co. {d) is the case of a work- 
 
 man who along with others broke off work (rightly) and 
 went to a public-house to refresh. As they returned to 
 work they saw a bogie being drawn from one portion of the 
 works to another, and one of them in a spirit of mischief 
 took hold of the rope at a point between the bogie and the 
 men who were drawing it, and proceeded to pull against 
 them. While doing so he slipped and fell across the rope 
 and was in imminent danger of being crushed had not 
 another run to his assistance, but was himself crushed in 
 rescuing the other man. His intervention was held not to 
 be in course of his employment, nor did the accident arise 
 out of or in the course of the employment, (e) 
 
 (a) MoAdam v. Harvey, [1903] 2 I. B. 511. 
 (6) 5 P. 164. 
 
 (c) 6 P. 1039. 
 
 (d) 45 So. L. E. 729. Ante, 376. 
 
 (e) See also McAllan v. Perthshire County Council, 8 P. 783 : workman's 
 private arrangement. 
 
Course of Employment 389 
 
 The signification of the phrase " course of the employ- Chap VII. 
 ment " was considerably extended in Brown v. Scott, (a) BrowIT^cott 
 where the Court of Appeal (William, L.J., dissenting) held 
 that a boy who was injured by a machine which he was told 
 to oil by a man who was not in authority over him was 
 acting in the course of the employment in obeying the 
 order. True, the boy was deceived ; for on asking : " Who 
 says so ? " the reply was, " Your boss," indicating the fore- 
 man. The "boy then objected to oil the machine while in 
 motion. The man refused to stop the machine, and threat- 
 ened to report the boy. The boy thereupon complied, and 
 was injured. As the precise circumstances are hardly likely 
 to recur the decision is not to be regretted. 
 
 Action on an emergency does not disentitle the work- Action on an 
 
 . rni. • • emergency. 
 
 man so acting to recover. Thus, a miner carrying a report 
 of the state of the mine from the pit's mouth to the office 
 was riding on a truck when the horse bolted. The miner 
 jumped down, tried to stop the horse, but slipped, fell and 
 was killed. The miner's action in the interest of his master 
 in an emergency which suddenly arose was held by the 
 Court of Appeal to be in the course of the employment, and 
 arising out of it. (b) " 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." (c) 
 
 (a) 1 W. 0. 0. 11. See, however, Edwards v. The International Goal 
 Co., Ltd., Times newspaper, 23rd November, 1899. The Scotch Oase, 
 MoQuibhan v. Menzies, 2 P. 732, is a similar decision only " stronger," 
 the injured person being an adnlt : " The legislature used language of wider 
 scope to include cases where a workman interferes to do something useful or 
 helpful to his master, although outside the special duties which he is 
 employed to perform." 
 
 (6) Eees v. Thomas, [1899] 1 Q. B. 1015. Cp. Devine v. Caledonian 
 Ey. Co., 1 F. 1105 : a carter killed while endeavouring to stop his runaway 
 horse. 
 
 (c) Per A. L, Smith, L.J., I. c. at lOlT. 
 
390 
 
 Workmen's Compensation Act, 1906 
 
 not necessary, 
 Harrison v. 
 Whitaker. 
 
 Cause of accident 
 external to the 
 employment. 
 
 Chap. VII. The " course of the employment " does not necessitate 
 Actual working ^.ny woik being done at all at the time of the accident. 
 Thus in Harrison v. Whitaker Brothers, (a) the injured 
 boy was " resting " at the time of the accident. His duty 
 was to grease the wheels and axles of railway trucks. He 
 finished greasing all that were ready for him, and while 
 waiting for more he went to a fire a short distance from his 
 post and sat on the handle of a lever near by to warm him- 
 self. An engine with trucks coming down the line jerked 
 the lever and threw and injured the boy. His injury was 
 one " arising out of and in the course of the employment," 
 for " it was the boy's duty to wait for the other trucks." 
 
 The distinction between an accident in the course of 
 the employment, but not arising out of it, was emphasized 
 in the Scotch case of Falconer v. London and Glasgow 
 Engineering and Iron Shipbuilding Co. (b) Kespondent 
 was employed as a blacksmith in the appellants' works, and 
 was at his work when he was injured by two of his fellow 
 workmen tumbling over him in their horseplay. The Court 
 held, Lord Moncreiff dissenting, that the accident did not 
 arise out of, though it was received in the course of, the 
 employment. The object of the statute was to compensate 
 workmen who were engaged in occupations which exposed 
 the employes to exceptional dangers. The protection 
 was, however, against accidents incidental to the special 
 employments. 
 
 Lord Trayner's judgment is fruitful in illustrations. A 
 servant engaged in a foundry, if struck by lightning, could 
 have no claim under the Act, nor yet his representatives, if 
 he were killed. A workman at his work injured by a stone 
 thrown maliciously over the wall of the yard, or by a pistol 
 fired into the yard by an outsider, could not successfully 
 
 Lord Trayner's 
 illustrations. 
 
 (a) 16 T. L. R, 108. 
 
 (6) 3 F. 564. 
 
Course of Employment 391 
 
 rely on the Act. Such accidents, though received in the Chap. VII. 
 
 course of, in no sense arise out of the employment, and 
 
 might equally happen to workmen engaged in employments 
 which are not within the employments enumerated in the 
 Act. (This was said under the Act of 1897.) This line 
 of reasoning on the whole seems satisfactory, and was 
 followed by the Court of Appeal in Armitage v. Lanes. 
 and T. Ry. Co., (a) where two boys quarrelling, one threw 
 a piece of iron . at the other which struck and injured 
 a third, who was engaged at his work. The accident was 
 due to a wrongful act which had no connection with the 
 employment. " An useful guide " in such a case was " to 
 see whether the act which caused the accident was or was 
 not entirely outside the scope of the employment of the 
 person who committed it." The legislature did not intend 
 " to give compensation to the workman for injuries occasioned 
 to him while engaged in his employment, by an accident 
 arising from any act which might be done by another work- 
 man engaged in the same employment, although it might 
 have no relation whatever to that employment." 
 
 Eowland v. Wright (&) is interesting not from any Bite by a oat in^ 
 
 i/»in . ^^^ course of /N. 
 
 new view of the law, but from the novelty of the facts. A employment. 
 teamsman took his horses home for the midday meal to the 
 stables, where was a cat, which, so it was said, without 
 provocation or any manifest inducement, bit the teamsman, 
 and in consequence he had to have two fingers amputated. 
 The injury was sustained arising out of and in the course 
 of his employment. 
 
 The period for which a workman must be disabled ^e week's 
 
 c aisablement. 
 
 before he can claim under the Act is at least one week ; 
 during which time he is prevented earning full wages, (e) 
 
 (a) 2 K. B. 178. (6) 24 T. L. E. 852. 
 
 (c) S. 1, sub.-s. 2 (a). Ante, 299. 
 
392 Worhmen's Compensation Act, 1906 
 
 Chap. VII. According to the usual computation the week must be 
 reckoned excluding both the day of the act and that of 
 the event (a) — it usually means any consecutive seven 
 days, (b) 
 
 "Fnii wages" There appears to be a distinction between the "full 
 
 and " Average ^^ 
 
 r»ra*tag8" wages," disability to earn which entitles a workman to 
 compensation, under sec. 1 (2) (a), and the " average weekly 
 earnings" with reference to which his compensation is 
 adjusted under First Schedule, sec. 1 (b). 
 
 The first sum is the full wages at the work at which the 
 workman was employed immediately preceding the accident. 
 
 The second sum is " the average weekly earnings during 
 the previous twelve months." (c) 
 
 The "average weekly earnings during the previous 
 twelve months" is the actual average, not the possible 
 average. A miner may choose to work only four or five 
 days a week, or to take a rest for a whole week. In taking 
 the average of his "earnings during the previous twelve 
 months" he is not entitled to count in respect of these 
 intermissions. His weekly average is l-52nd of his total 
 actual earnings in his employment for the whole twelve 
 months — and on this his compensation is to be assessed, (d) 
 
 The fact that the workman has been paid " full wages " 
 is only an element in the case. The test is whether he is 
 disabled "from earning full wages." Suppose the rule of 
 
 (a) The Queen v. Justices of Shropshire, 8 A. & E. 173. 
 
 (6) Bazalgette v. Lowe, 24 L. J. Oh. 368, 416. In re Eailwav Sleepers 
 Supply Co., 29 Oh. D. 204. " 
 
 (c) First Schedule (1) (b), ante, 326. The statement in the text deals 
 only with total or partial incapacity— not with death. In case of death, 
 where dependants are left, there is a minimum payment of £150 ■ or where 
 dependants in part dependent are left an amount " reasonable' and pro- 
 portionate to the injury to the said dependants." Mrsti Schedule (1) (a) 
 (ii). Ante, 326. Post, 521, as to weekly earnings, etc. 
 
 (d) Keast v, Barrow Hematite Steel Co., 15 T, L, R. 141 • Williams v 
 Poulson, T. L. B. 42. ' 
 
Weelcly Earnings 393 
 
 an employment to be that injured men are kept on at tlieir Chap. VII. 
 old rate of pay, a man injured is still entitled to oompen- 
 sation under the Act, for he might wish to leave his em- 
 ployment and go elsewhere where he could not command 
 " full wages at the work at which he was employed," or he 
 might be dismissed; at least he would be in misericordid. 
 But we shall consider this aspect of the case more in detail, 
 later on. (a) 
 
 The Court of Appeal have decided that open and Tips. 
 
 ■'■■'■ ^ Penn v. Spiers & 
 
 notorious " tips " sanctioned by the employer are to be ^°^^- 
 brought into account in estimating the average " weekly 
 earnings." 
 
 This was disputed in the County Court and was given 
 adversely to the workman because " weekly earnings mean 
 earnings between employer and employe, and nobody else " ; 
 and secondly there was no evidence of a bargain that the 
 workman should retain the tips. In the Court of Appeal, 
 however, it was pointed out that the measure of the com- 
 pensation under the Act is not wages but earnings ; and 
 these must be in the employment. "If the workman by 
 the exercise of his talents during his leisure hours, as, say, 
 a conjurer or a musician, gains money, the money thus 
 gained will increase his ' income ' but not his * earnings ' 
 under the Act." Earnings in the employment do not 
 always come from the employer. As to the second point, 
 it is enough that the Court finds that it is " an implied term 
 for the contact, and that both parties contracted on that 
 footing." " To avoid misconception," the Court added " that 
 nothing in this judgment extends to 'tips' or gratuities 
 (a) which are illicit; (b) which involve or encourage, a 
 neglect or breach of duty on the part of the recipient by 
 his employer; or (c) which are casual and sporadic, and 
 
 (a) Post, 521. 
 B.E.L. 2 D 
 
394 Workmen's Compensation Act, 1906 
 
 Chap. VII. trivial in amount." When the fact that the Act of 1906 
 applies to "domestic servants " is considered, the possi- 
 bilities opened up by the exception (d) are wide reaching. 
 Will evidence be admitted to show that the gratuities to the 
 housemaid are " casual," " sporadic," or trivial in amount ; 
 and will she be allowed to rebut this evidence by showing 
 that her employer is given to hospitality, and that his 
 guests are kno\vn in her walk in life for their liberality ? (a) 
 
 "Seeious and Wilful Misconduct." 
 
 BencDcent We have already noted that if the action of the work- 
 
 wisdom of the '' 
 
 legislature. uj^n results in "death or serious and permanent disable- 
 ment," though he may have brought it on himself by his 
 serious and wilful misconduct, it is the employer or the 
 insurance company who is to be pecuniarily affected there- 
 by. If the ruin done is great but the workman escapes, he 
 loses any compensation. If the same ruin is done, but the 
 workman is permanently disabled, then to the employer's 
 ruin is added the burthen of a life pension for the man that 
 worked it. The workman's compensation is in inverse ratio 
 to the success he has in taking care of himself. Suicide, 
 ihowever, is not within the proviso, for the accident must 
 arise out of and in the course of the eimployment. 
 
 For the moment we will defer the consideration of what 
 "serious misconduct" is. The word connotes weight or 
 gravity, and is thus very considerably dependent on its 
 surroundings for its valuation. In the first instance, we 
 may better direct our efforts to obtaining some definite 
 notion of the legal import of " wilful misconduct." We 
 may further note that the effect of these words is to ex~ 
 elude the defence of contributory negligence falUng short 
 of " serious and wilful misconduct." 
 
 (a) Penn v. Spiers & Pond, [1908] 1 K. B. 1908. 
 
Serious and Wilful Misconduct 395 
 
 The word " wilful " in law amounts to nothing more Chap. VII. 
 
 than this — that he (the person whose act is so described) 
 
 knows what he is doing, and intends to do what he is doing, "wiim" in law. 
 and is a free agent, {a) 
 
 " Wilful misconduct " is a phrase that has several times wufui 
 
 1 . -,. . 1 . . misconduct. 
 
 received judicial exposition. 
 
 In Glenister v. G. W. Ey. Co., (6) Quain, J., says: (c) Gienister ». 
 " Everybody knows how difficult it is to define the negli- q^^^ /' 
 gence which amounts to ' wilful misconduct ' so as to justify 
 a conviction for manslaughter. Something of the same 
 kind is intended here : but without defining it exactly, it is 
 sufficient that the facts here show no culpable negligence 
 at all, and negligence must be culpable to constitute ' wilful 
 misconduct.'" The negligence in the case before the 
 Court was taking cattle from their trucks and driving them 
 into a yard from which they strayed upon the railway. 
 Had the cattle been left in the trucks they would have had 
 to remain there till the , following day. Blackburn, J., Biaokbum, j. 
 said (d) : " It is admitted that there was no malice in what 
 the servants did here, and I fully agree that there may be 
 many cases of * wilful misconduct ' without malice ; for 
 instance, if railway servants were to shunt trucks of cattle 
 into a siding and leave them unattended for twenty-four 
 hours ; or if a railway company were for economy knowingly 
 to expose cattle to a risk which they incurred thereby," 
 
 In argument in Lewis v. G. W. Ey. Co., (e) " wilful ^^^^ ^y. co. 
 
 (a) PerBowen, L.J., In re Young & Harston's Contract, 31 Oli. D. 169 
 at 175, commented on by Buckley, J. ; Bennett v. Stone, [1902] 1 Oh. 226 
 at 232. 
 
 (6) 29 L. T. N. S. 423. 
 
 (e) At 426. (d) At 425. 
 
 (e) Lewis v. G. W. Ey. Co., 3 Q. B. D. 195. A thing done intentionally 
 and in the result wrongly is not necessarily wilful misconduct : Oordey v. 
 Cardiff Pure Ice and Cold Storage Co., Ltd., 19 T. L. K. 256. See also 
 Porder ii. G. W. Ky. Co., [1905] 2 K. B. 532. 
 
396 Workmen* s Oompensation Act, 1906 
 
 Chap. VII. misconduct" is defined as "doing wrong knowing that it 
 will cause damage ; * wilful omission ' might come within 
 
 Bramweii, L.J. the definition." (a) In delivering judgment, Bramwell, L. J., 
 says (6) : " ' Wilful misconduct ' means conduct to which 
 the will is a party, something opposed to accident or 
 negligence ; the mis-conduct, not the conduct must be 
 wilful, (c) It has been said, and I think, correctly, that 
 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 mis- 
 conduct ' 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 what 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. 
 
 Brett, L.J. I think that would be wilful misconduct." Brett, L.J., 
 says(«i): Wilful misconduct "must mean the doing of 
 something, or the omitting to do something, which it 
 is wrong to do or to omit, where the person who is 
 guilty of the act or the omission knows that the act 
 which he is doing, or that which he is omitting to do, 
 is a wrong thing to do or to omit ; and it involves the 
 knowledge of the person that the thing which he is doing 
 is wrong ; I think that if he knows that what he is doing 
 will seriously damage the goods of a consignor, then he 
 
 {a) At 201. (6) At 206. 
 
 (c) Oited and approve 
 394] 2 Oh. 524 at 536, i 
 
 (d) 3 Q. B. D. at 210. 
 
 (c) Oited and approved in In re Mayor of London and Tubbs's Contract, 
 [1894] 2 Oh. 524 at 536, 538. . ' 
 
Serioios and Wilful Misconduct 397 
 
 knows that what he is doing is a wrong thing to do ; and Chap. VII. 
 also, as my Lord has put it, if it is brought to his notice 
 that what he is doing, or omitting to do, may seriously 
 endanger the things which are to be sent, and he wilfully 
 persists in doing that against which he is warned, careless 
 whether he may be doing damage or not, then I think he is 
 doing a wrong thing, and that that is misconduct, and that, 
 as he does it intentionally, he is guilty of * wilful mis- 
 conduct ' ; or if he does, or omits to do something which 
 everybody must know is likely to endanger or damage the 
 goods, then it follows that he is doing that which he knows 
 to be a wrong thing to do. Care must be taken to ascertain 
 that it is not only misconduct but ' wilful misconduct,' and 
 I think these two terms together import a knowledge of 
 wrong on the part of the person who is supposed to be 
 guilty of the act or omission." And Cotton, L. J., says (a) : cotton, l.j. 
 " Now, I do not think there can be any doubt at all that 
 ' wilful misconduct ' is something entirely different from 
 negligence and far beyond it, whether the negligence be 
 culpable or gross, or howsoever denominated. There must 
 be the doing of something which the person doing it knows 
 will cause risk or injury, or the doing of an unusual thing 
 with reference to the matter in hand, either in spite of 
 warning or without care, regardless whether it will or will 
 not cause injury." 
 
 Now as to " serious misconduct " — serious 
 
 miscoDduct. 
 
 The rule is Verbis plane expressis omnino standum est ; (b) Euio or 
 
 ■^ ■'■ ^ construction. 
 
 or, as Lord Bsher expounds it in Hornsey Local Board v. 
 Monarch Investment Building Society (e) : " An Act of 
 Parliament is to be construed according to the ordinary 
 
 (a) L. c. at 213. 
 
 (6) Per Dr. LusMngton, " The St. Cloud," Bro. and Lush. 17. 
 
 (c) 24 Q. B. D. 5. 
 
398 Workmen's Compensation Act, 1906 
 
 Chap, VII. meaning of the words in the English language as applied 
 ~~ to the subject-matter, unless there is some very strong 
 ground derived from the context or reason why it should 
 not be so construed." 
 
 On this subject Vaughan Williams, L.J.'s words in 
 Anderson v. Eayner (a) may be profitably noted : " I cannot 
 assent to the suggestion of the plaintiif's counsel that it 
 is an established canon of construction that, where you have 
 an enactment passed in favour of a particular class it must 
 be construed liberally. On the contrary, I think the old 
 rule still prevails that, where you are dealing with an 
 enactment which imposes on members of the community 
 liabilities beyond those which would be imposed upon them 
 by the common law, the enactment ought not to be con- 
 strued as imposing upon them any liability that is not 
 clearly indicated by its language." Mathew, L. J., assented. 
 
 Ordinary The Ordinary meaning of the word " serious " in the 
 
 meaning. ^ ^ 
 
 English language is — grave, weighty, earnest, important, as 
 opposing to trifling and insignificant. " Serious miscon- 
 duct," then, is misconduct which in ordinary cases could 
 not readily be overlooked. But " serious misconduct " may 
 be so designated either from its intrinsic qualities or from 
 its consequences. It is probably only the former of these 
 classes which will constitute " serious misconduct " under 
 the Act. 
 
 Suggested cases. For instance, a breach of the statutory rule prescribed 
 by the Coal Mines Eegulation Act, 1887, (6) " no lamp or 
 
 (a) [1903] 1 K. B. at 591. 
 
 (6) 50 & 51 Viot. 0. 58, s. 49, r. 8. Op. anU, 225. As to the statutory 
 control given over persons in mines, see Marrow v. Flimby and Broughton 
 Moor Goal and Fire Brick Co., [1898] 2 Q. B. 588. It " does not in any 
 way alter the relationship of the contracting parties inter se; they [the 
 rules] simply give control to the mine owner over persons in the mine so 
 as to enforce the prescribed regulations for carrying on without danger 
 the mining operations." For example, s. 8, sub-s. 2 of the Coal Mines 
 Eegulation Act, 1887, provides that : "The immediate employer of every 
 
Serious and Wilful Misconduct 399 
 
 light other than a looked safety lamp shall be allowed or Chap. VII. 
 
 used," would iu itself constitute "serious misconduct." 
 
 The probable effect of the Tiolation of the rule would be 
 injury. The object of the rule is to preserve life and limb ; 
 and a violation of it, in the phrase of Brett, L. J., imports 
 " a knowledge of wrong " on the part of the person breaking 
 the rule ; and not wrong merely in the breaking the rule, 
 but a wrong that may likely extend beyond into untoward 
 consequences. 
 
 But, possibly, a breach of rule 10 (iv.) of the same Act, 
 "A person shall not have in his possession any lucifer 
 match or apparatus of any kind for striking a light," etc., 
 would not be held " serious " within the section, supposing 
 an explosion igniting the lucifer match and causing the man 
 to sustain more severe injuries than he would have done had 
 he observed the rules. The object of the rule is probably to 
 guard against the temptation to strike a match, not against 
 any damage from the mere possession of itj so long as it 
 remains in the pocket. In the one case, the open lamp in 
 the mine is a present menace to life and limb. In the 
 other case the matches in the miner's pocket are innocent 
 in ordinary and natural course so long as they remain there, 
 and their presence may be due to oversight and not to 
 active and wilful wrong-doing. 
 
 There must, too, be rules which are disciplinary or 
 precautionary as distinguished from those whose direct and 
 immediate object is the safety of the workmen and the 
 
 boy, other than the owner, agent or manager of the mine, before he 
 causes the boy to be below ground m any mine, shall report to the 
 manager of the mine or to some person appointed by that manager that 
 he is about to employ the boy in the mine." Fitzpatriok v. Evans & Co., 
 [1902] 1 K. B. 805, is a decision under the Employers Liability Act, 1880, 
 that the signature of conditions by a workman of a contractor, binding 
 himself to observe the regulations and conditions laid down for the safety 
 of the mine and for the guidance of the persons employed therein, as con- 
 sideration for being employed in the mine, did not create a contract of 
 service between the workman and the colliery owners. 
 
400 
 
 Workmen's Compensation Act, 1906 
 
 Principle 
 discussed, 
 
 Chap. VII. work, a neglect of which could not, apart from consequences, 
 be taken as " serious." (a) 
 
 If, however, the violation of a rule is to be determined 
 as " serious " by reason of its consequences, it is hard to see 
 how, when wilful misconduct is proved, any additional 
 element is added by the requirement that it should be 
 " serious " ; since in order to bring an accident within the 
 Act at all it must be such as produces disability for a 
 period of at least one week ; (&) and, in the ordinary and 
 natural use of the English language, anything producing 
 such effects on a workman's capacity would not, with 
 reference to the very probable requirements of himself and 
 family, be otherwise designated than as serious. 
 
 The word used by the Legislature is " serious," and the 
 arbitrator under the Act has, in the first instance, to put 
 his interpretation upon it. The method by which he is to 
 arrive at this is a familiar method in law. It is resorted to 
 in the determination of questions like what is a reasonable 
 time for presenting negotiable paper, or what shortcomings 
 in conduct are regarded in law as negligent. 
 
 In cases under the Act the presence of a jury is 
 dispensed with, and the whole procedure centres in the 
 arbitrator who has himself to exercise the functions both of 
 a judge and of a jury in the matter. 
 
 In the first place the standard of conduct by which 
 the particular facts have to be judged has to be pre- 
 scribed, (e) If there already exists any standard in the 
 
 Method of 
 interpretation. 
 
 Standard of. 
 conduct. 
 
 (a) Cp. Proposition XII., Chapter III., Part I., ante, 62. See also 
 
 Propositions XV.-XVIII., Chapter II., Part I., ante, 35. 
 
 (6) S. 1 (2), wnU, 299. 
 
 (c) I know of no place where the theory of the formation of a standard 
 of conduct is so well treated as in Holmes, The Common Law, par- 
 ticularly at 123-129. 
 
Serious and Wilful Misconduct 401, 
 
 matter this is to be adopted. If, for instance, daily Chap. VII. 
 experience prescribes a sufficiently definite rule of what is 
 
 „ . . , „ , , . , standard of 
 
 " serious misconduct, the rule is to be followed. If, as is cnduot. 
 probably the case in the present instance, no sufficiently 
 definite rule exists, one has to be formed. This will be 
 done by approximately similar states of fact recurring 
 frequently in practice, and similar decisions by degrees 
 hardening into rules. Until the materials for eliciting a 
 rule exist, each decision must stand upon the exercise by 
 the arbitrator of his judgment determining (1) approxi- 
 mately what is the standard to be set up, and (2) whether 
 the conduct in the case before him attains that standard. 
 
 So soon as the number of particular decisions admits of 
 a general rule being formed, this general rule ought to be 
 applied; and the standard having been ascertained, the 
 arbitrator, in the absence of a jury, has to determine what, 
 in cases where there is a jury, is the jury's peculiar 
 province : whether in the particular ease the facts reach 
 the standard. 
 
 The qualification of misconduct as " serious " has the 
 effect of narrowing the meaning of "misconduct" merely. 
 The distinction probably taken is between that misconduct 
 which viewed antecedently may be breach of discipline, 
 or tending to mismanagement, but which would not suggest 
 as its probable consequence peril to life or limb ; and that 
 misconduct which, if contemplated by a reasonably prudent 
 man in the position in all respects of the wrong-doer, 
 would suggest as a probable consequence injury to life 
 or limb. 
 
 To constitute " serious misconduct," then, it is probable summary. 
 that the Legislature intended to signify conduct that an 
 average workman in being guilty of either would know, 
 or ought to know, if he turned his mind to consider the 
 
402 Workmen's Compensation Act, 1906 
 
 Chap. VII. matter, to be conduct likely to jeopardise his own and Ms 
 fellow-workmen's safety, (a) 
 
 Arbitrator may But the arbitrator may submit any question of law 
 
 submit question 
 
 ?» conn'y Court for the decision of the County Court judge ; (o) and on this 
 point of " wilful and serious misconduct," three questions 
 of law may be raised : — 
 
 (1) What is the correct standard of conduct ? What, 
 
 that is, are the elements which are to be, or may 
 be, considered in arriving at a conclusion of what 
 is " serious and wilful misconduct " ? 
 
 (2) Whether there is any evidence of the facts which 
 
 the arbitrator takes as proved in any given case ? 
 
 (3) Assuming there to be evidence, are the facts 
 
 sufScient to warrant the inference of "serious 
 and wilful misconduct " being drawn from them ? (e) 
 
 state of the In EumboU V. Nunnery Colliery Co. in the Court of 
 
 "serious and Appeal, (^) Smith, L.J., adopted the proposition "that it 
 conduct." was not right to say that every violation by a, workman of 
 
 any of the rules, general or special, framed for the regula- 
 tion of coal mines must necessarily render the man guilty 
 of ' serious and wilful misconduct ' within the meaning of the 
 Workmen's Compensation Act. Such a proposition could 
 not be laid down as a matter of law, but it was necessary 
 in each case to consider the particular circumstances." 
 
 MmSaiMMn'* Douglas V. United Mineral Mining Co., Ltd.,(e) has 
 
 c°- been noticed in connectio.n with the cases treating of the 
 
 course of employment, where its bearing on the present 
 
 (a) Propositions VI.-IX., Chapter III., Part I., cmte, 56. 
 (6) Second Schedule (4). Ante, 336. 
 
 (c) See Colonial Securities Trust Co. i). Massey, [1896] 1 Q. B. 38. 
 id) Times newspaper, 6th Feb., 1899; 80 L. T. 42. See FuUerton, 
 Hodgart & Barclay v. Logue, 88 Sc. L. E. 738 ; 3 F. 1006. 
 (e) Times newspaper, 20th February, 1900, 2 W. C. 0. 15. 
 
Serious and Wilful Misconduct 403 
 
 matter as manifested by the finding of " fact " by the Chap. VII. 
 
 County Court judge, was glanced at. (a) In Dailly v. 
 
 Watson (b), however, the sheriff was even more liberal than 
 the County Court judge in the earlier case, and held that a 
 miner who, in breach of a special rule of the mine, wore a 
 naked lamp in his cap while carrying cartridges not 
 enclosed in a case or canister, was not guilty of " serious 
 and wilful misconduct." The Court of Session reversed 
 this, holding that the miner's conduct constituted in law 
 " serious and wilful misconduct." Any other decision 
 would have practically deleted these words from the Act. 
 The way the conclusion of the Court was worked out may 
 have been that there was evidence of the workman's know- 
 ledge of the rule, with appreciation of it, and of a wilful 
 or reckless breach of it ; and thus evidence of serious and 
 wilful misconduct, which, unrebutted, must be acted on. 
 Where evidence of facts exists which is not contradicted, 
 and which the judge cannot disbelieve, he is not at liberty to 
 disregard it or to act contrary thereto. That the judges in- 
 tended to ignore the element of fact that must always be 
 present in these cases is a belief not lightly to be entertained. 
 
 The two cases last noticed, decided respectively by the ^^abSia^^* 
 English and Scottish Courts, moreover, illustrate a difficulty ''™/™s"'°- 
 constantly arising. In the Court of Appeal, at least one of 
 its members was obviously not content with the finding of 
 the County Court judge, yet the finding stood, because the 
 Court was able to discover some possible evidence for it and 
 the members of the Court professed themselves not entitled 
 to interfere. Had the Court fixed a standard, however low 
 that standard might be, it is hardly possible that the facts 
 indicating serious and wilful misconduct should be outside it. 
 The Scottish Court on the other hand framed for themselves 
 
 ifl) Ante, 384. (6) (1900) 2 P. 1044. 
 
404 WwhamiiCs Compensation Act, 1906 
 
 Chap. VII. a definition of the words, and, determining that the particular 
 facts could not be brought within the formula, or indeed, 
 within any reasonable formula, reversed the sheriff. The 
 course adopted by the Scottish Court is obviously the more 
 correct. Definition is always a matter for the Court. 
 Whether the words can mean any particular thing is the 
 preliminary question for the Court. Whether they do is 
 for the subsequent determination of the jury, (a) and no one 
 would contend that the notion of serious and wilful mis- 
 conduct is so unformed' as not to admit of any generalization 
 of it, Collins, L.J., puts the point neatly in Roper v. 
 Greenwood. (6) " When we are dealing with a word in an 
 Act of Parliament, before we can arrive at a decision of fact 
 as to whether that which the word in question means has 
 taken place or not, we must adopt some standard of what 
 the word means. That involves a proposition of law as well 
 as of fact. The County Court judge, therefore, has two 
 duties to perform ; he must incidentally direct himself as 
 „to the meaning of the Act of Parliament, and then he must 
 find, as a jury, whether that which the Act of Parliament 
 means has taken place. It seems to me that the judge 
 cannot find upon the question of fact without adopting 
 some standard of the meaning of the Act. If then the 
 County Court judge has misdirected himself as to the 
 meaning of the Act, we ought to send the case back to him 
 for a new trial. If the facts admit of only one inference, 
 and the judge has so found that he must have misdirected 
 himself as to the law, it would be right to send the case 
 back to him." (e) 
 
 (a) See per Lord Cairns, Metropolitan By. Co. v. Jackson, 3 App. Cas. 
 193 at 197. 
 
 (6) 88 L. T. B. 471, 3 W. 0. C. 23 at 27. See per the same learned 
 judge, Penn v. Miller, [1900] 1 Q. B. 788 at 792 ; and Ferguson v. Green, 
 [1901] 1 K. B. 25 at 29. 
 
 (c) Cp. Hoddinott v. Newton, Chambers & Co., [1901] A. C 49 at 
 56 and 68. 
 
Serious and Wilful Misconduct 405 
 
 This failure to have some standard before the Court will Chap. VII. 
 explain decisions otherwise unaccountable. The finding of 
 the County Court judge is in all these instances affirmed, 
 whether imputing serious and wilful misconduct or refusing 
 to do so. Any continuity of decision is thus impossible, 
 depending as the cases do on the fluctuating views and 
 insight and, possibly, prejudices of the County Court 
 bench. 
 
 In Rees v. Powell Duffrvn Steam Coal Co. (a) the Court Rees u. Poweii 
 
 •' ^ ' Dutfryn steam 
 
 of Appeal reversed the County Court judge, who held that coai co. 
 a collier was guilty of serious and wilful misconduct who, 
 returning to the lamp station in the mine to re-light his 
 lamp, passed along a way over which trains were being 
 hauled by a rope. Though told that a train was being 
 hauled he proceeded and was injured by the breaking of a 
 rope as he was making for a manhole. Manifestly here the 
 injury was not the result of his misconduct, supposing 
 there was misconduct, but was due to the breaking of the 
 rope. 
 
 John V. Albion Coal Co., Ltd., (6) turns on somewhat J °*jYo -^^'Won 
 similar facts. A miner experienced in the respondents' 
 mine left his work and was walking along the main haulage 
 road with some other men when the rope began to move 
 and the trams started. One of the men at the first manhole 
 told the miner to come into the manhole as the trams were 
 not far off. He refused, and walked on, passing six man- 
 holes and had just reached the seventh, when he was over- 
 taken and killed. The County Court judge found serious 
 
 (a) 64 J". P. 164. With this accords Sneddon v. Glasgow Goal Co., 
 7 P. 485. There a miner in breach of regulations was riding on the top of 
 a loaded tram through a tunnel when he was killed by a stone that fell 
 from the roof. No evidence connected the fall of the stone with the man 
 being on the tram ; therefore the injury was not attributable to the 
 misconduct. 
 
 (6) 18 T. L. B. 27. 
 
406 Workmen's Compensation Act, 1906 
 
 Chap. VII. and wilful misconduct, and the Court of Appeal refused to 
 disturb his finding on the grounds that there was evidence 
 for it. 
 
 Gemofa An eudeavour to formulate some guiding principles was 
 
 decision. made by the judge of the Winchester County Court in 
 
 Jones V. London and S.-W. Ey. Co., (a) and the case is 
 interesting as an English decision in this connection not 
 decided merely by rule of thumb. The fireman of a railway 
 engin'e was missed by the driver between two stations. He 
 turned and discovered him lying on the coals at the rear of 
 the tender. The fireman had obviously been struck on the 
 back of his head. At the next station he was found to be 
 dead. He had struck against an arch in going into the 
 well of the tender, while the train was in motion, to get 
 coal. This was both unnecessary and forbidden by special 
 notices brought to the knowledge of the deceased man. 
 The judge decided that " as matter of law " it was serious 
 and wilful misconduct to violate the general directions and 
 rules, of which the fireman had full notice ; that is, probably, 
 that on the admitted facts only one conclusion could be 
 drawn. 
 
 The case was not taken to the Court of Appeal. 
 Judging from precedent, had it been, the Court would 
 have afBrmed the County Court judge, holding that there 
 was evidence for his finding " as a fact," and ignoring his 
 attempt to reach a principle. 
 
 Scotch decisions The Scotch Courts, however, are in accord with this 
 
 seelt a principle. 
 
 finding " of law," this indication of a minimum line below 
 which conduct in ordinary cases could not go without 
 carrying the legal inference of "serious and wilful mis- 
 conduct," though even here the interposition of another fact, 
 or the alteration in proportions of two facts, might make all 
 
 (a) L. T. newspaper, 29th June, 1901 ; 3 W. C. C. 46. 
 
Serious and Wilful Misconduct 407 
 
 the difference. In Callaghan v. Maxwell, (a) for example, Chap. VII. 
 a farm servant employed on the platform of a steam 
 
 , . "^ Callaghan D. 
 
 threshing machine m passing sheaves to the millman was Maxweii. 
 directed to remain in her place, and, moreover, was warned 
 what would result if she disobeyed. Nevertheless, she left 
 her place to gossip with an acquaintance and lost her leg. 
 The sheriff substitute found she was not guilty of " serious 
 and wilful misconduct"; but he was reversed, the Lord 
 Justice Olerk in particular expressing the opinion that there- 
 could be no more pronounced case of wilful misconduct 
 than disobedience to a specific order given to safeguard the 
 disobedient person. Another Scotch case already noticed 
 is to the same effect. In Gruthrie v. Boase Spinning Co. (&) spinnta|co!"°° 
 there was an express order not to clean machinery. The 
 machinery was stopped at regular intervals for cleaning. 
 Disobedience to this order was held " serious and wilful 
 paisconduct." Two other Scottish cases have gone further 
 than, probably in view of the opinions pronounced in the 
 House of Lords in two cases we are in a moment to consider, 
 the English Courts would follow. In Vaughan v. NicoU (c) ^S?;" "• 
 a farm servant in charge of a horse and cart tied the reins 
 to a wheel which worked a brake. An accident happened in 
 consequence. He was held guilty of serious and wilful mis- 
 conduct. But an appeal was disallowed, as it involved 
 only a question of fact which the Court will not entertain. 
 
 Drunkenness, which was solely the cause of an accident, d™'"^'™™^^. 
 was held serious and wilful misconduct in M'Groarty v, 
 John Brown & Co., Ltd. (d) In these and similar cases the 
 real solution is that the law and the fact is so intermixed 
 that the conclusion that is in any particular case arrived at 
 
 (0) 37 So. L. R. 313 ; 2 P. 420. 
 
 (6) 8 F. 769 ; 38 So. L. B. 483. 
 
 (c) 8 F. 464. . . 
 
 {d) 8 F. 809. Op. Burrell v. Avis, 106 L. T, newspaper, 61. 
 
408 
 
 Workmen's Compensation Act, 1906 
 
 Disobedience 
 with serious 
 consequences 
 not necessarily 
 " wilful." 
 
 Chap. VII. might by a very slight variation of the facts be of quite 
 another complexion. A finding in a case that conduct is 
 not wilful and serious, which according to all ordinary use 
 of language is obviously so, raises a question of law ; for it 
 reasons from the hypothesis that language, not susceptible 
 of such a meaning, is capable of the meaning and so is a 
 subject of appeal in law ; but there are a number of nebulous 
 questions in the debatable land that when they have been 
 •decided one way as matter of fact do not admit of appeal. 
 The attributing these to their right classification is matter 
 of experience for which no certain rule is to be give.n. 
 
 Though there may be disobedience with most serious 
 consequences, it by no means follows that it is wilful in the 
 sense of the Act. Thus, a boy working at a machine used 
 for cutting screws leaned over a circular saw to pick up an 
 uncut screw which had fallen from its place ; in doing so he 
 injured his finger. He had been frequently warned. The 
 Court of Appeal were of opinion that the prima facie 
 inference arising on the facts was that the element of 
 wilfulness did not enter at all into what he did, but that 
 he acted from sudden impulse, (a) 
 
 By the terms of the Act (5) the workman is entitled 
 to his compensation unless it is proved that his injury is 
 attributable to his serious and wilful misconduct ; and thus 
 it is plain that the onus is on the employer to prove this. 
 The Courts have refused to treat the proof as matter of res 
 ipsa loqxdtur requiring rebutting testimony ; and it may be 
 taken that to discharge the employer direct, and not merely 
 inferential, evidence will be required. A landslip having 
 happened on the appellants' railway, two workmen were 
 employed as night watchmen— one to be at the site of the 
 
 (a) Eeeks v. Kynooh, Ltd., 18 T. L. E. 34. 
 
 (6) S. 1 (2) (c), ante, 300. Hapelman v. Poole, Times newspaper. 
 December 8th, 1908. 
 
Serious and Wilful Misconduct 409 
 
 landslip, where there was a fire, the other down the line to Chap. VII. 
 
 warn approaching trains. Both men shortly before the 
 
 accident were by the fire. He whose duty it was to be 
 there fell asleep; on waking he found that the other had 
 been killed by a train. The sheriff refused to draw the 
 inference that he was asleep, or that he was guilty of serious 
 and wilful misconduct ; or even supposing that he was, that 
 the accident was attributable to the misconduct. The 
 Court declined to interfere, as on the facts found no question 
 of law could arise, (a) 
 
 In Johnson v. Marshall, Sons & Co., (6) the matter was Johnson ». 
 brought before the House of Lords. A workman was 
 found fatally injured in a lift on his employers' premises 
 without a load. The rule of the employment was that no 
 man was to use the lift if he did not have a load. The 
 onus was the employers' to show "serious and wilful mis- 
 conduct." Lord Loreburn, C, considered the word " wilful " 
 to import " that the misconduct was deliberate, not merely a 
 thoughtless act on the spur of the moment." " Serious " he 
 held to imply "not that the actual consequences were 
 serious but that the misconduct itself was so." The inten- 
 tion of the 1897 Act, says Lord James of Hereford, (c) was 
 " to make the business bear the burthen of the accidents that 
 arose in course of the employment, and relief from this 
 liability is not found even if the injured workman be guilty 
 of negligence. The doctrine of contributory negligence 
 was superseded by the Act." Lord Robertson (d) took a Lord Eobertson's 
 
 VIGW 
 
 somewhat stricter view, and thought that "a breach of a 
 
 regulation committed intentionally and of choice, the 
 
 regulation directly relating to personal safety, might well 
 
 come within the language, even although the thing done 
 
 did not involve anything morally censurable." In the 
 
 (o) Glasgow & S.-W. Ey. Co. v. Laidlaw, 2 F. 708. See Proposition 
 XXL, Chapter III., Part I., write, 77. 
 
 (6) [1906] A. C. 409. (c) L. c. 412. (d) L. c. .414. 
 
 B.E,L. 
 
 2 E 
 
410 Workmen's Compensation Act, 1906 
 
 Chap. VII. later case, also in the House of Lords, of Bist v. Londo] 
 Biat T~London S.-W. Ey. Co., (a) the remarks of Lord James of Herei 
 ■ ^' "■ indicate an apprehension that the house was receding ft 
 the consequences of their holding in Johnson v. Marsh 
 An engine driver left the footplate of his engine ! 
 mounted the tender to get coal while the train was in 
 course of its journey, and was killed by collision wit 
 bridge. He " broke a rule which certainly is a very seri 
 rule. There is evidence that he knew of its existence, t 
 that he knowingly and wilfully acted in defiance of it. 
 was a rule to save life and prevent danger both to i 
 public and to the servants of the company." " I think," s 
 Lord Loreburn, C, (&) " the duty of the Court is to insist tj 
 there shall be sufficient proof, and to scrutinize that pre 
 bearing always in mind that negligence will not suffic 
 "Both wilful and serious conduct is involved," says Lord Ht 
 bury, (c) " in doing that which would undoubtedly exp^ 
 to danger both the man himself and those who in a certi 
 sense are under his charge." The addition of this alt 
 istic element, not the consequences to the misdoer, 1 
 to those exposed to the consequences of his misdoing, is 
 valuable addition to the elements, the consideration 
 which is to fix the character of the Act. 
 wancn."' Even had the consequences of the misconduct in Brooke: 
 
 Warren {d) not been serious it could hardly be intelligen 
 contended that the misconduct itself was not. The workm 
 there had a rooted objection to the provisions of sec. 10, si 
 sec. 1 (c) of the Factory and Workshop Act, 1901, whi 
 makes the requirement that an effective guard (a recent 
 vention, not approved by the workman) shall be used wh 
 working with circular saws. Both the Inspector of Factor 
 and the employer directed the workman to use the gua 
 
 (a) [1907] A. C. 209. 
 
 (b) L. c. 211. See George v. Grlasgow Coal Co. in H. of L. 25 T L B 
 
 (c) L. c. 212. (d) 23 T. L. E. 201. 
 
Serious and Wilful Misconduct 411 
 
 He refused, and in the course of his work an accident Chap. VII 
 happened, and he was killed in consequence of his default. 
 The Court of Appeal held him guilty of " serious and wilful 
 misconduct." " He was guilty of misconduct in deliberately 
 and intentionally refusing to obey the order to use the 
 guard, and the misconduct was serious because it produced 
 a condition of danger to himself and others." Here also it 
 may be well to note the common peril was an element in 
 fixing the character of the Act. 
 
 The effect of these later cases is fatal to the authority 
 of many of the earlier. For example, in McNicol v. Speirs, moNIcoi v. 
 Gibb & Co.,(a) it had been decided that because the workman 
 did not know of the statutory rules which he had Tiolated 
 and had acted in accordance with the practice of the mine, 
 he was entitled to compensation when he was injured ; but 
 in O'Hara v. Cadzow Coal Co., Ltd., (h) the Court of Session 
 held that breach of a statutory rule from which an accident 
 resulted was in itself "serious and wilful misconduct." 
 They followed this ruling in Condron v. Gavin, Paul & Sons, 
 Ltd., (c) and in Dobson v. United Collieries, Ltd., (d) where 
 a miner was injured through having a naked light in his 
 cap while working with explosives, and the sheriff found 
 that the workman did not know the rule prohibiting this. 
 A Court of seven judges sat to determine the principle 
 applicable. This they held to be that acting in breach of a 
 duly published statutory rule where there is no dominant 
 reason for so doing is " serious and wilful misconduct " ; and 
 that ignorance of the rule can in no circumstances be an 
 excuse. The conduct of the workman in this case as a 
 matter of fact, without any accentuating from the rules, 
 seems in the highest degree reprehensible, yet in the words 
 
 {a) 1 P. 604. (6) 5 P. 439. (c) 6 P. 29. 
 
 (d) 8 P. 241 was distinguished, Praties v. Broxburn Oil Co., Ltd., [1907] 
 S. 0. 581 ; but followed George v. Glasgow Coal Co., 45 So. L. B. 686, in 
 H. L. 25 T. L. E. 57. 
 
412 
 
 Workmen's Compensation Act, 1906 
 
 Sneddon v. Glas- 
 gow Coal Co, 
 
 Chap. VII. of Lord Lorebum it might have been " merely a thoughtless 
 act on the spur of the moment," and if so, the wrong 
 criterion was applied; (a) for the determination of this 
 question of the fact was necessary. (6) 
 
 In Glasgow Coal Co. v. Sneddon (c) there was breach 
 of a statutory rule ; yet the injury alleged, caused by 
 the fall of a stone from the roof of the mine which killed 
 the man, was not attributable to the breach; and conse- 
 quently compensation was allowed to his dependants : 
 though the workman had broken a statutory rule yet the 
 accident was due to something else which, if a rash and 
 foolish act, was not " serious and wilful misconduct." 
 
 The recitation of this long catalogue of cases and the 
 examination of the principles applicable have seemed ex- 
 pedient because the proviso about serious and wilful mis- 
 conduct is still retained in the Act. The exemption from 
 the consequences where injury results in death or serious 
 and permanent disablement has, 'however, deprived the 
 proviso of most of its importance. 
 
 Employer not 
 liable both 
 independently 
 of and also 
 under the Act. 
 
 Common law 
 rules. 
 
 No Double Compensation. 
 
 ' There is one other limitation to the right to compensa- 
 tion under the Act remaining for consideration. The 
 remedy of the workman against his employer, either at 
 common law (d) or under the Employers Liability Act, 
 1880, (e) is preserved to him; but the employer is not 
 liable both independently of and also under the Act (/). 
 
 We may shortly recapitulate what the rights of the 
 workman are — 
 
 (a) [1906] A. 0. 412. Beeks v. Kynooh, 18 T. L. E. 34 ; Whitehead v. 
 Header, [1901] 2 K. B. 48. George v. Glasgow Coal Co. in H. of L 
 25 T. L. B. 57. 
 
 (b) Cp. Praties v. Broxburn OU Co., [1907] S. 0. 681; WaUaoe v. 
 Glenboig Union, etc., Co., [1907] S. C. 967. (c) 7 P. 485. 
 
 (d) Ante, 19 et se^q. (e) Ante, 131 et seqg. {/) S. 1 (2) (b). Ante, 300. 
 
Recapitulation 413 
 
 (1) At common law ; and Chap. VII. 
 
 (2) Under the Employers Liability Act. 
 
 (1) At common law the employer is liable for the acts 
 of his workmen to third persons if he directs the acts, or 
 if they are done in the course of the workman's employ- 
 ment, (a) 
 
 At common law the employer is liable to a workman 
 injured by another of his workmen, if the injuring and the 
 injured workman, though having a common master, are not 
 in a common employment. (6) 
 
 Since Wilson v. Merry, (c) the rule of the common law 
 has been incontrovertible that there is no legal duty on the 
 employer to answer to one person in his employment for 
 the injurious acts of any other person in the same employ- 
 ment; even though the injurious person is a manager 
 appointed by authority of an Act of Parliament, {d) 
 
 The only persons for whose acts or defaults, occurring and 
 causing injury to a workman in the course of the employ- 
 ment, the employer would be responsible at common law are — 
 
 (i) A partner ; (e) 
 
 (ii) An incompetent servant, of whose incompetency 
 
 the employer has knowledge or the means of 
 
 knowledge.(/) 
 
 The employer would be liable for the " wilful " acts of 
 
 these, so far as the acts are done in the course of the 
 
 employment, on the ground that he is guilty of " personal 
 
 negligence." Beyond this there is no liability. 
 
 {a) Ante, IH et seqq. 
 
 (6) Chapter I., " Common Employment." Ante, 13 ; and Propositions 
 XXI.-XXV., Chapter II., Part I. Ante, 41 et sec[g,. 
 
 (c) (1868) L. R. 1 Sc. App. 326. 
 
 . (d) HoweUs V. Landore Steel Co., L. R. 10 Q. B. 62. 
 
 («), Proposition III., Chapter II., Part I. Ante, 21, 
 
 (/) Proposition IV., Chapter II., Part I. Ante, 22. 
 
414 Workmen's Compensation Act, 1906 
 
 Chap. VII. A case, then, like Limpus v. London General Omnibus 
 Company (a) has no bearing on the relation of master and 
 servant, except in so far as the injury sued on is one done 
 by a partner or by an incompetent servant. In other cases, 
 if the wilful act done were outside the scope of the employ- 
 ment, by the very statement of the case, it is plain there 
 can be no liability ; if again the wilful act done were within 
 the scope of employment, it would be also within the rule 
 under which one servant takes the risks of the othet 
 servants' conduct. (6) 
 
 Effect of the (2) The Employers Liability Act, 1880, extends the 
 
 i88o''"^ ■^°'' employer's liability by making the employer liable for the 
 negligence of his servants in the circumstances enunciated 
 in the 1st and 2nd sees, of the Act. (c) To the extent 
 indicated by the Act the employer is rendered liable for 
 the wilful acts of the servants whose position is there dealt 
 with. He is liable not because the acts are wilful, but 
 because they are negligent. True, they are acts which the 
 servant does of his own clear volition; but none the less 
 for that are they acts, done while in the exercise of the 
 employer's business, which fall below the standard of care, 
 the attainment of which is the sole justification of entering 
 on the employment. 
 
 The Act prescribes duties on the part of the master in 
 respect of the workmen beyond what before existed. 
 Accordingly, if a superintendent or other servant within the 
 Act pursuing his master's interests, as he regards them, 
 does something whereby personal injury is caused to a 
 workman, his act is a wilful act, in so far as it is the result 
 of a deliberate choice of means, but it is no less a negligent 
 
 (a) Limpus v. London General Omnibus Co., 1 H. & 0. 526. Ante, 146. 
 (6) Propositions II. and XXI., Chapter II., Part I. Ante, 20, 41. 
 (c) Ante, 124. 
 
No Double Recovery 415 
 
 one, in that, having by law to safeguard the workman, he Chap. VII. 
 prefers some other object and overlooks his first concern. 
 
 Apart from this class of cases, the Employers Liability 
 Act, 1880, does not deal with wilful acts — does not deal with 
 them, that is, otherwise than as they are the overt indica- 
 tions of neglect of statutory duty — and there is no greater 
 liability imposed than previously existed at common law. 
 
 This consideration will explain difficulties sometimes 
 arising, where it is sought to shift the liability for negligence 
 on the ground that the act complained of was foreseen and 
 deliberately calculated. The cause of action is, neverthe- 
 less, rightly negligence ; for the wilful act implies an ignoring 
 of the legal duty which the law makes of first consideration. 
 So much for the law independent of the present Act. 
 
 Turning then to the law as modified by the Workmen's No donwe 
 
 TBCOVCrv. 
 
 Compensation Act, 1906, the proviso dealing with this 
 says : " 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 the employer . . . shall not be liable to pay com- 
 pensation for injury to a workman by accident arising out 
 of and in the course of the employment both independently 
 of and also under this Act, and shall not be liable to any 
 proceedings independently of this Act, except in case of 
 such personal negligence or wilful act as aforesaid." (a) 
 
 The consideration of the remedy that the employer has, 
 where he has been ordered to pay compensation under the 
 Workmen's Compensation Acts, but has an indemnity over 
 against some one else, will be deferred till we are dealing 
 with procedure, (6) as the method indicated gives no new 
 right, but points out a course of procedure that may be 
 
 (a) Ante, 300. (i) Post, 687. 
 
416 Workmen's Compensation Act, 1906 
 
 Chap. VII. adopted where the workman has preferred the remedy 
 given by the Act to pursuing the right which he has at 
 common law and which becomes enforceable' by the master. 
 Probably an action for damages caused by injuring the 
 servant might be brought apart from this Act, and damages 
 not only to the extent of the indemnity pointed out might 
 be 'obtained, but additional damages also, in some cases 
 at least for loss of service, (a) 
 Workman's By the Act the workman has his option either to 
 
 option. _ "^ ^ 
 
 claim thereunder or to resort to the remedies that existed 
 previously to its passing. Apart from enactment the 
 common law would have precluded him from a double 
 remedy; but the words of the Act add a statutory 
 assurance. The words of the first section of the Act, 
 moreover, summarise the workman's rights independently 
 of the Act as " injuries caused by the personal negligence 
 or wilful act of the employer, or of some person for whose 
 act or default the employer is responsible." 
 
 The first points to determine are what this option is 
 and how it may be exercised. 
 
 At one time the view was prevalent that the remedy 
 under the Act was cumulated upon the existing rights of 
 the workman, and that assuming him to bring a common 
 law action against his employer and to fail, he might still 
 take proceedings under the Act, provided that he did not 
 infringe the time-limits. This view has been decided to 
 be erroneous by the Court of Appeal, and he can only in 
 those circumstances obtain the benefit of the Act by 
 availing himself of the provisions of sec. 1 (4) (6) 
 
 The decision has been confirmed by authority, but the 
 
 (a) Alton V. Midland Ey. Co., 34 L. J. 0. P. 292. See Taylor v. 
 Manchester, Sheffield & Line. Ry. Co., [1895] 1 Q B. 134 ; Meux v. Q-. E. 
 By. Co., [1895] 2 Q. B. 387. 
 
 (6) Ante, 301. 
 
Workman's Option 417 
 
 reasoaing at least on one portion of the case that decided Chap. VII. 
 this is far from unexceptionable, (a) An action under the 
 Employers Liability Act, 1880, had proved unsuccessful. 
 Subsequently independent proceedings were begun under 
 the Workmen's Compensation Act, and the judge made 
 an award. On the appeal the award was set aside on the 
 ground, as stated by Smith, L.J., that under ordinary 
 circumstances the defeated plaintiff, under the Employers 
 Liability Act, 1880, would have been met by the defence 
 of res judicata, and that proceedings "in respect of any 
 matters arising out of the same accident " would have been 
 impossible but for the provisions of sec. 1 (4), which con- 
 fers rights on the workman, when he has exercised his 
 pption in bringing a common law action and failed. The 
 workman must therefore follow the prescribed procedure 
 and apply at the trial for an assessment of compensation. 
 Independent proceedings cannot be taken. 
 
 So far as this reasoning depends on an affirmation that Edwards «. 
 
 ° ^ _ Godfrey 
 
 a workman who fails in a common law action can only criticized. 
 establish a claim under the Act by putting the same facts 
 before the arbitrator to establish his claim, it is by no 
 means convincing ; for example, he may fail in his action 
 by being shown guilty of contributory negligence at 
 common law; but under the Act this may not amount 
 to "serious and wilful misconduct." Every fact established 
 on the first inquiry may be admitted on the second, indeed 
 prayed in aid, without conflicting with the conclusion in 
 favour of the applicant on the second. Both conclusions 
 may well stand together — certainly the material facts on 
 the second inquiry are not res Judicata, (b) As Eitzgibbon, 
 
 (a) Edwards v. Godfrey, [1899] 2 Q. B. 333. 
 
 (6) The Queen v. Hutchings, 6 Q. B. P. 300. Duchess of Kingston's 
 Case, 2 Sm. L. 0. (llth ed.) 731. 
 
418 WorJomen's Compensation Act, 1906 
 
 Chap. VII. L.J., says in Beckley v. Scott (a), "The ground of dismissal 
 had nothing to do with the right of suit for damages upon 
 the civil liability, and it could not operate a determination 
 that such liability did not exist." 
 
 Fa^an v. Reed However, in Fagau V. Eeed Brothers, (b) the Court of 
 
 Brothers. ' & i_ i. 
 
 Appeal followed Edwards v. Godfrey, holding that the 
 applicant could not, after having elected to proceed with 
 an action at common law, afterwards take separate pro- 
 ceedings under the Workmen's Compensation Act. Dis- 
 missing the unsatisfactory ground of res judicata altogether, 
 this decision may be maintained by the consideration that 
 the new remedy is given by sec. 1 of the Act, which in 
 sub-sec. (4) points out the circumstances in which, after 
 the failure of an action, compensation may be had ; and 
 that none can be had save in the way provided, (c) The 
 application must be made at once on the determination of the 
 common law or employer's liability claim, "then and there." 
 
 Beckley v. Scott. The Irish judgcs were very divided in Beqkley v. Scott & 
 Co. (d) on the question whether a right to damages existing 
 independently of the Act is so affected by a claim for com- 
 pensation under the Act that the right to sue for damages 
 at common law is taken away by the workman's exercise of 
 the option which the Act gives him to " claim compensation." 
 A claim had been made under the Act, which claim had 
 been disallowed, under the decisions as they then stood, on 
 the ground that the provisions of the Act did not apply to 
 the case. The applicant then began an action at common 
 law. His right to do so was objected to ; but the majority 
 of the Irish Court of Appeal held that the true construction 
 
 {a) Weekly Notes, 1903 at 175 ; [1903] 2 1. E. 574. 
 
 (6) Times newspaper, 6th June, 1899. 
 
 (c) The Scotch case is Baird v. Higginbotham & Co., Ltd., 38 Sc. L. E. 
 *79. (d) [1902] 2 I. E. 504 ; W. N. 1903, 173. 
 
Beckley v. Scott 419 
 
 of sec. 1, sub-sec. 2 (b) of the Act of 1897, which is identical Chap. VII. 
 with the Act of 1906, confines the protection "to double 
 payment," and "that it is not the mere claim but the 
 recovery of compensation under the Act which puts an end 
 to the civil liability to damages, which is otherwise not to be 
 affected by anything in the Act." Edwards v. Godfrey (a) 
 was distinguished as being under sub-sec. 4. Holmes, L.J., Hoimes, l.j.'s 
 dissented. "As I understand the English language," he ■'"''Bment. 
 said, " when an option is given to a person to take either of 
 two courses, he is not to take both ; and as I understand 
 legal principle, an option or election of this kind once 
 exercised must be adhered to." " The opening words of the 
 clause (sec. 1, sub-sec. 2 (b)) are merely intended to preserve 
 such rights as the workman had outside the Act, provided 
 he desires to rely on them. Admittedly, the recovery of 
 compensation under the statute would deprive him of these 
 rights ; and there is nothing inconsistent in a provision that 
 his making a claim for compensation would have a similar 
 effect." " The Legislature, in conferring on workmen a new 
 and most valuable right of compensation for personal injuries, 
 provides that when they elect to avail themselves thereof, 
 they abandon other modes of recovering damages for the 
 same injuries." " The 4th subsection seems to me to aid the 
 construction I have adopted, and to take away all reasonable 
 grounds of complaint to which the option clause might 
 otherwise have given rise." " I think that the idea under- 
 lying it was to relieve him [the workman] to a certain 
 extent, and without undue prejudice to the employer, from 
 the embarrassment of the option clause. In a doubtful 
 case he can sue independently of the Act ; and, if he fails, 
 the Court that tries the case can award him compensation 
 under the Act if he is entitled to it." 
 
 {a) [1899] 2 Q. B. 333. 
 
420 Workmen's, Compensation Act, 1906 
 
 Chap. VII. In Isaacson v. New Grand (Olapham Junction), Ltd., {a) 
 Isaacs'^. New ^^"^^ Alvcrstone, C.J. (with whom Wills and Ohannell, J J. 
 Wioa)!*''''™ concurred), held that « the condition which allowsthe plaintiff 
 to exercise the option is that the defendant is not liable in 
 the action under the Employers Liability Act," or at common 
 law, as the case may be. The case in which this was said 
 was one where an action under the Employers Listbility Act 
 had been dismissed with costs ; and where the plaintiff, 
 though applying for compensation under the Workmen's 
 Act, was desirous of appealing against the decision under 
 the other Act, and establishing a liability thereunder. Lord 
 Alverstone's view was : " That if the plaintiff intends to 
 appeal he may . . . have to make an application pro forma 
 to the County Court judge to assess the compensation under 
 the Workmen's Compensation Act and to ask that the 
 application may stand over until the appeal has been heard. 
 It cannot be that because the County Court judge has 
 wrongly determined the action in favour of the defendants 
 the plaintiffs are debarred from taking any further pro- 
 ceedings, and we ought not to decide that we are powerless 
 because the plaintiffs took this step before the County Court 
 judge with a view to the protection of their rights." 
 
 Taylor ». Ham- The uext case dealing with the import of the option 
 
 Btead Colliery o r r 
 
 ^"^ approaches it from a different point of view. The plaintiff 
 
 in Taylor v. Hamstead Colliery Co. (6) sued in respect of 
 the death of a workman who had worked at a colliery on 
 the terms of a scheme of compensation under see. 3 of the 
 Workmen's Compensation Act, 1897. The contention for 
 the defendants in the action was that the deceased man had 
 exercised his option under the Act, and had elected to take 
 the benefits provided by the scheme. The Court of Appeal 
 held that " the provisions of the scheme are substituted for 
 
 (o) [1903] 1 K. B. 539. (S) [1904] 1 K. B. 838. 
 
Option 421 
 
 the provisions of the Act. If he [the deceased workman] Chap. VII. 
 had proceeded under the provisions of the Act he would 
 have been debarred from taking proceedings independently 
 of the Act, and he is in the same position when proceeding 
 under the provisions of a scheme which are substituted 
 for the provisions of the Act." Mathew, L.J., observed, 
 " As to the case of Beckley v. Scott & Co., I only wish to 
 add that I am impressed by the reasoning of Holmes, L.J., 
 who dissented from the judgment of the majority of the 
 Court." (a) This decision overruled that of the Divisional 
 Court (Wills and Kennedy, JJ.s), before whom, with the 
 addition of Lord Alverstone, C. J., the next case, Eouse v. eousc v. Dixon. 
 Dixon, (b) came. A workman claimed compensation under 
 the Workmen's Compensation Act. After the employer 
 had filed his answer, the workman gave notice withdrawing 
 his claim for compensation and brought an action for 
 damages under the Employers Liability Act. This the • 
 
 Divisional Court held that he could do ; " because the case 
 does not come within the Act at all, the right of the work- 
 man to make any other claim is not lost." " At any rate," 
 says Lord Alverstone, " I am clearly of opinion that there is 
 nothing in the Act to lead to the extraordinary result that, 
 where a claim is made under the Act, but withdrawn before 
 there has been any decision upon it, all other liability on 
 the part of the master is thereby wiped out. In my opinion 
 the intention of the Act was only to prevent the master 
 from being liable to pay twice over." "To my mind the 
 reasoning of the decision in Beckley v. Scott is unanswer- 
 able, and is not inconsistent with Edwards v. Godfrey." 
 Kennedy, J., acquiesced apparently with some reluctance, 
 and with the remark that " it would certainly be very hard 
 
 (a) dp.. Williams v. Vauxhall ColUery Co., Ltd., [1907] 2 K. B. 433. 
 ■ (6) [1904] 2 K. B. 628. 
 
422 Workmen's Compensation Act, 1906 
 
 Chap. VII. on the workman if he were barred from all other rights by 
 anything short of a decision." 
 
 Neaie v. Electric In the Court of Appeal in Neale v. Electric and Ordnance 
 
 and Ordnance ■'■ ^ 
 
 AcceaeorieB Co. Accessories Co., Ltd., (o) it was argued that that case was con- 
 cluded by Isaacson t. New Grand (Clapham Junction), Ltd., 
 decided in the Divisional Court. " It was there held that 
 the mere application for an assessment of compensation 
 under the Workmen's Compensation Act, 1897, upon the 
 dismissal of an action under the Employers Liability Act 
 did not amount to the exercise of an option so as to estop 
 the plaintiff from appealing against the dismissal of the 
 action." "Here the matter did not stop short at a mere 
 application, but ripened into an award of compensation, 
 which is unimpeachable. Therefore the two cases are quite 
 distinguishable." But the Court of Appeal also thus laid 
 down the principle applicable. Sec. 1, sub-sec. (2) (b) " gives 
 the workman in cases to which it applies an option whether 
 he will claim compensation under the Act or take proceed- 
 ings against the employer independently of the Act ; but 
 having that option he must take it subject to the condition on 
 which it is given, namely, that though he may have one of 
 two modes of relief, he cannot have both. Therefore a con- 
 cluded election to accept one of these modes of relief operates 
 to debar him from claiming the other." (6) To this there is 
 the saving given by sub-sec. 4. 
 
 &ibb V The decision in Neale v. Electric and Ordnance Accessories 
 
 iiynocQ. 
 
 Co., Ltd., was held by the Court of Appeal in Cribb v. 
 Kynoch (No. 2), (c) to involve the proposition that, under 
 sec. 1, sub-sec. (4), if the workman within the six months 
 brings his action to enforce the common law liability and 
 fails, he may in the action have an assessment of the 
 
 (a) [1906] 2 K. B. 558. (6) Per CoUins, M.R., at 564. 
 
 (c) [1908] 2 K. B. 551 ; 24 T. L. B. 786. 
 
Option 423 
 
 compensation payable in respect of the statutory liability ; Chap. VII. 
 while it confers a benefit upon the employer in that it 
 allows the County Court judge to deduct from such com- 
 pensation all the costs of the defeated action. " This is 
 ... to be the only means by which the plaintiff in a 
 defeated action is to be entitled after the expiration of the 
 six months to recover the statutory compensation." 
 
 Cribb V. Kynoch, Ltd., also, so far as the English Beckiey v. scott 
 
 overruled as an 
 
 Courts short of the House of Lords go, settled the question |"'Ynd^ ™ 
 raised in Beckiey v. Scott (a), whether the prosecution of a 
 remedy, even though it subsequently is found that the 
 remedy is not applicable in the particular case, is an in- 
 ■ superable impediment to other proceedings either under the 
 Workmen's Compensation Act or otherwise. Holmes, L. J.'s 
 view was taken, and Cozens-Hardy, M.E., adopted into his 
 judgment the passage in Holmes, L.J.'s judgment imme- 
 diately preceding that already quoted: "If the employer 
 is not to be liable to pay compensation both under and 
 independently of the Act, is he to be subjected to the 
 expense, trouble, and inconvenience of two sets of pro- 
 ceedings ? In many cases the question at issue in a claim 
 under the Act and in a common law action for damages is 
 the same. If I am to judge by what I read and hear, 
 claims for compensation are often resisted on the ground 
 that the injury is attributable to the serious and wilful 
 misconduct of the* workman ; and two or three of the most 
 recent cases before this Court have turned on this point. 
 But this is a good defence to an action for damages ; and it 
 would seem highly unreasonable that a matter that had 
 been fought out and adjudicated upon in one tribunal 
 could be forthwith reopened in another. I think that it 
 must have been the desire to guard against an employer 
 being subjected to two law suits to recover compensation 
 
 (a) [1902] 2 I. K. 504. 
 
424 Workmen's Compensation Act, 1906 
 
 Chap. VII. for the same injury that led to the introduction, immediately 
 after the provision that secures to the workman his old 
 right of action, of the remarkable words, ' but in that case the 
 workman may, at his option, either claim compensation 
 under this Act, or take the same proceedings as were open 
 to him before the commencement of this Act.' " The 
 effect of the section, at least in England^ is now established 
 to be " that a workman cannot proceed to trial under the Act 
 and fail, and then proceed by common law action, and also 
 cannot proceed by common law action, and having failed in 
 that action then proceed under the Act." (a) 
 
 The wording of this proposition accords with the 
 suggestion of Kennedy, J., in Eouse v. Dixon, that nothing 
 " short of a decision " would avail to mate an option. But 
 this inference does not quite accord with the reasoning of 
 Holmes, L.J., in the passage read from his judgment by 
 Cozens-Hardy, M.E., which lays stress on the "expense, 
 trouble,' and inconvenience of two sets of proceedings," nor 
 yet with the judgment of the Court of Appeal in Neale v. 
 Electric and Ordnance Accessories Co., Ltd., that a concluded 
 election to take one mode of relief operates to debar the 
 workman from claiming the other. To proceed to obtain a 
 decision on one of the alternative remedies offered to the 
 workman would be a most indubitable exercise of an 
 option : (6) but it does not follow that some less thorough 
 course of action would not avail. The determination of 
 whether the option has been exercised is one of those 
 mixed questions of law and fact, instances of which are so 
 
 (a) Per Cozens-Hardy, M.R., Cribb v. Kynooh, Ltd., [1908] 2 K. B 551 
 at 555 ; Page v. Burtwell, [1908] 2 K. B. 758 ; Greenwood •». Greenwood, 
 24 T. L. E. 24. In Scotland the other view has prevailed: Ouinn v 
 Brown, 8 F. 855 ; Little v. MoLellan, 2 P. 387. 
 
 (c) Cp. Blackburn Corporation v. Sanderson, [1902] 1 K. B. 794, where 
 the earlier cases, West Ham Local Board v. Maddams, 40 J. P. 470 and 
 Tottenham Local Board v. Rowell, 1 Ex. D. 514, are distinguished •' and 
 Hammersmith v. Lowenfeld, [1896] 2 Q. B. 278, is overruled ' 
 
Option 425 
 
 abundant in jurisprudence. The decision of what can Chap. VII. 
 
 be an option is a question of law which the County Court 
 
 judge will determine and on which, as the phrase is, " he 
 
 will direct himself." There will then come the question 
 
 whether the facts in the case before him can be brought 
 
 within the terms of his definition, which must be drawn 
 
 from the cases just passed in review. If the definition is 
 
 rightly drawn, the judge's finding whether the particular 
 
 case is within it or outside of it is final (supposing there 
 
 is evidence before him for either view) ; but if he has added 
 
 to or detracted from the elements that should be present in 
 
 the legal notion of the exercise of an option his judgment will 
 
 be reviewed. There is no doubt that in the interpretation 
 
 of the exercise of an option, not only an unequivocal 
 
 indication of the remedy the workman intends to take must 
 
 be given, but that some steps, possibly involving " expense, 
 
 trouble, and inconvenience " to the employer, must be taken 
 
 to place the determination beyond mere surmise. Even 
 
 this would not be conclusive, and the final solution would rest 
 
 in the inferences to be drawn from the facts in each case. 
 
 Some analogy may be found in the cases already noted, (a) 
 
 Where a receipt in discharge of all liability has been given, 
 
 the tendency of all the cases is not to hold the workman 
 
 precluded where there are features of ambiguity in his 
 
 action or in the facts. 
 
 To issue a writ in an action for negligence, or to enter a 
 plaint under the Employers Liability Act in the County 
 Court, would frima facie be exercises of the option, yet 
 they would not bind if they were not served on the 
 respondents. But a less definite step than' either of these 
 would sufSce if other matters concurred, involving reason- 
 able expense and trouble on the respondents. In Scotland, 
 
 (a) Ante, 116 ; see too 404. 
 B.E.L. 2 r 
 
426 Workmen's Compensation Act, 1906 
 
 Chap. VII. receiving for about six months rather more that half 
 wages, barring the first two weeks after injury, has been 
 held exercise of the option. The Lord President treated 
 it as raising solely a question of fact, (a) 
 
 Powell «• Main Judging from the case of Powell v. Main Colliery 
 Co<, (b) an option is plainly not exercised when the work- 
 man merely gives the notice of the accident ; neither would 
 it necessarily follow that he has made his election when 
 he has made a claim for compensation which would be 
 effectual under the Act if ultimately he so elected. The 
 claim may be so worded as to indicate an election, though 
 probably the Court would be slow to hold the applicant to 
 the exact terms of a rudely drawn claim. But a claim for 
 compensation in which the claim was the main feature, and 
 which only incidentally glanced at the method of obtaining 
 it, could scarcely be held conclusively binding. The com- 
 mencement of legal proceedings may be too late ; for the 
 circumstances may point to the exercise of the option 
 previously to them by proceedings by which the respondents 
 may have been prejudiced ; but generally this may be 
 taken as prima facie indicating the exercise of the option 
 or the claim for compensation under the Workmen's Com- 
 pensation Act. A general claim for compensation would 
 be indefinite and leave the final choice open. 
 
 Dictum of In Beckley v. Scott, (c) Holmes, L. J., seems to be 
 
 Holmes, L. J, In •' ' \ ^ » > 
 
 wmidered' ^"" ioaccurate whcrc he says : " There is nothing in sub-sec. 4 
 to prevent the unsuccessful plaintiff from obtaining com- 
 pensation by arbitration in accordance with the second 
 schedule. It merely enables him if he shall so choose to 
 have compensation assessed by the Court." It is contrary 
 to Edwards v. Godfrey, (tZ) where Smith, L.J., says: 
 
 (a) Mackay v. Eose, [1908] S. 0. 174. (6) [1900] A. 0. 866. 
 
 (c) [1902] 2 I. B. 504 at 586. (d) [1899] 2 Q. B. 833 at 387. 
 
Contracting Out 42*7 
 
 "Having been defeated in this action, there would but for Chap. VII. 
 
 the proyisions of sec. 1, sub-sec. 4, have been an end of any 
 
 claim by the respondent against the appellant in respect 
 
 of the injury " ; and also to Neale's case, (a) It reads into 
 
 the sub-section a remedy that is not found there, and it 
 
 seems contradictory of the earlier passages of the L.J.'s 
 
 judgment. 
 
 Nothing in the Workmen's Compensation Act, 1906, is 
 to affect any proceeding for a fine under the enactments 
 relating to mines, factories, or workshops, or to the appli- 
 cation of the fine, (b) 
 
 The enactments referred to are now codified by the 
 Factory and Workshop Act, 1901, (c) by the Coal Mines 
 Eegulation Act, 1887, {d) and by the Metalliferous Mines 
 Regulation Act, 1872, (e) and have been already referred 
 to.(/) 
 
 CONTEACTING OUT OF THE AcT. 
 
 The liability of the employer is not, however, absolute contracUDg out. 
 in the terms of the Act. He is allowed, with severe limita- 
 tions under the stringent conditions of sec. 3, to contract 
 himself out of his liability, or, more accurately perhaps, to. 
 vary the incidence of his liability. 
 
 The method of doing this is through the instrumentality 
 of the Eegistrar of Friendly Societies, an office created by 
 the Friendly Societies Act, 1875, (^) and confirmed and 
 extended by the Friendly Societies Act, 1896. Qi) 
 
 (a) [1906] 2 K. B. 538 at 563, 567 and 568. 
 
 (6) Sec! 1, sub-s. 5. Ante, 301. 
 
 (c) 1 Edw. VII. 0. 22, ss. 136, 144. 
 
 \d) 50 & 51 Vict. 0. 58, ss. 59 (2), 70. 
 
 (e) 35 & 36 Viot. c. 77, ss. 31-38. 
 
 (/) Ante, 225. 
 
 (g) 38 & 39 Viot. c. 50, ss. 10-14. 
 
 \h) 59 & 60 Vict. o. 25, ss. 1-7. 
 
428 Workmen's Compensation Act, 1906 
 
 Chap. VII. By his authority (a) regulations have been made and 
 forms of application have been drawn up, providing for his 
 obtaining all relevant information . both for granting 
 certificates under the new Act or of recertifying schemes 
 under the old Act. (6) But first he is bound " to take steps 
 to ascertain the views of the employer and workmen," and 
 then that any scheme of compensation, benefit or insurance 
 for the workmen of an employer in any employment is not 
 less favourable to the workmen and their dependants than 
 the corresponding scales contained in this Act. If the 
 scheme provides for contributions by the workmen it must 
 confer benefits at least equivalent to such contributions ; 
 and the assent of a majority of the workmen (to be ascer- 
 tained by ballot) is given to the scheme. It is not necessary 
 that the scheme should be limited to the workmen of any 
 particular employer ; it may include many, (c) When a 
 certificate is granted by the Eegistrar, the employer may, 
 till the certificate is revoked, contract with the workmen 
 included in the scheme for the substitution of the provisions 
 of the scheme for those of the Act, and the employer is to 
 be liable only in accordance with the scheme. 
 
 EequircmentB The Ecgistrar of Friendly Societies, before certifvin? a 
 
 of the Eegistrar ° J ' j b 
 
 sodSiM*''' scheme, requires, in addition to full particulars of the 
 nature of the employment, tiie place where it is carried on, 
 and the number of workmen engaged in it, and what 
 number of them join with the employer in promoting the 
 scheme — 
 
 (1) A comparison of the provisions of the scheme with 
 
 those of the Act, 
 
 (2) A statement of the exceptional benefits the work- 
 
 man is to receive under the scheme. 
 
 (a) S. 3, sub.-s. (8). Ante, 30i. 
 
 (6) S. 15 (2). Ante, 322. See Appendix B. Post, 884. 
 
 (c) S. 3 (1). Ante, 303. 
 
Contracting Out 429 
 
 (3) A statement of the respective proposed contributions Chap. VII. 
 
 of both employer and workmen, 
 
 (4) A declaration that the scheme contains no obliga- 
 
 tion on the workmen to join the scheme as a 
 condition of their hiring. 
 
 (5) An actuary's report upon the scheme, {(/i) 
 
 (6) Two printed copies. 
 
 (7) A statutory declaration verifying the result of the 
 
 ballot. 
 
 (8) A statement showing — 
 
 (a) the views of the general body of the workmen 
 as to the scheme ; 
 
 (i) how such views were ascertained. 
 
 According to the common law " a duty imposed by common law 
 statute for the benefit of any particular person" may be 
 waived by the person intended to be benefited. (6) 
 
 The maxim of law is, Qwivis renuneiare potest juri pro se 
 introdMcto. (o) 
 
 The common law right is taken away by the section. Taken away. 
 If the employer wishes to regulate his obligations to com- 
 pensate his workpeople for injury arising out of and in the 
 course of their employment he can only do so by obtaining 
 a certificate from the Eegistrar of Friendly Societies 
 approving a scheme in conformity to the requirements 
 
 (d) The fonns of application for the oertifloate of th? Bagistrar of 
 Friendly Societies are set ont in the Appendis. Posti 886. 
 
 (6) Graham v. Ingleby, 1 Ex. 651. 
 
 (c) BoviU V. Wood, 2 M. & S. 23, per Bayley, J., at 2$ ; or as the 
 maxim appears in Cod. 2, 3, 39, Orrmes licenUam habere kis, gViCS pro se 
 introducta sunt, renuntia/re. Lord Westbury points out in Hunt v. Hunt, 
 31 L. 3. Gh. 161 at 175, that the pro se in the maxim show that '' no man 
 can renounce a right which his duty to the public, which the claims of 
 society forbid the renunciation of." Cp. WUaon v. Mcintosh, [1894] A. 0. 
 129 at 133. Ante, 294. 
 
430 WorJcmen's Compensation Act, 1906 
 
 Chap. VII. just set out ; and the Registrar is only empowered to grant 
 the certificate on the conditions that the contract is — 
 
 (1) Not less favourable to the workmen and their 
 
 dependants than the corresponding scales con- 
 tained in this Act. 
 
 (2) Not obligatory on the workman as a condition of 
 
 the employment. («) 
 
 (3) One that contains provisions enabling any workman 
 
 to withdraw from the scheme. 
 
 In theory an employer has his common law right to 
 refuse to employ a workman who will not come into the 
 scheme ; but an employer who is anxious about his scheme 
 would do well to consider how, in the event of such action, 
 he could face an application under sub-sec. (4) to revoke the 
 certificate on the ground that "the scheme is not being 
 fairly administered or that satisfactory reasons exist for 
 revoking " the certificate. 
 
 No direct liability In Priest ^.Cochrane & Co., in the Dudley County 
 
 of employer "^ ■' 
 
 necesaary. Court, (&) Judge Robcrts decided that under a scheme there 
 need be no direct liability of the employer — i.e. the liability 
 of an insurance society or a benefit society may be sub- 
 stituted. The scheme may be such that it is for the benefit 
 of the workman to discharge the employer from all liability 
 whatever, substituting the liability of an insurance or 
 benefit society which has made a contract with the employer 
 to which the workmen are not parties. 
 
 AnrewViowies ^1* t^® t^^ms of the scheme must be narrowly regarded, 
 and if in any particular it is not applicable to the workman's 
 case he is restored to his common law rights. As in 
 Haworth v. Andrew Knowles & Sons, Ltd., (e) where the 
 
 (a) lb. : Sec. 3 (3). 4«fe,303. (6) 7tli April, 1902, but unreported, 
 (c) 19 T. L. R. 658. 
 
Contracting Out 431 
 
 committee of management of a scheme having stopped a Chap. VII. 
 workman's disablement allowance on the ground that he was ~ 
 
 fit to work and failed to go to work when able to do so. 
 The workman brought an action for arrears ; and the Court 
 of Appeal held that on a true interpretation of the rules 
 under the scheme the decision of the committee was not 
 conclusive and final, and the workman had his remedy in 
 the Courts. 
 
 In the event of the scheme becoming insolvent the scheme 
 
 1-T/.1 1 11 . 1 1 insolvent, 
 
 liability of the employer would not revive, so long as the 
 certificate continues unrevoked. 
 
 Any existing contract by which a workman relin- 
 quishes his 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 the Act, be 
 deemed to continue after the time at which the workman's 
 contract of service would determine if notice of the determi- 
 nation thereof were given on the 1st July, 1907. Contracts 
 substituting the provisions of a scheme certified under the 
 Workmen's Compensation Act, 1897, are excepted from 
 this provision, but if any such scheme is not recertified 
 before six months from the 1st July, 1907, the certificate 
 thereof shall be revoked, {a) 
 
 Where an infant is a workman within the scheme, it has infant. 
 been decided that the general law remains applicable ; he 
 will not be bound unless acceptance of the scheme is for 
 his advantage. (&) If the point ever arises the Courts will 
 probably on this section express inability to go behind the 
 certificate of the Chief Eegistrar; for upon his certificate 
 being given, and while it remains in force, the employer 
 
 (a) Ante, 322. Wallace v. E. & W. Hawthorne, 'Leslie & Co., Ltd., 45 
 So. L. E. 547. 
 
 (6) Stephens v. Dudbridge Iron Works Co., [1904] 2 K. B. 225. 
 
432 Worhnen's Compensation Act, 1906 
 
 Chap. VII. has statutory authority "to contract with any of his work- 
 men that the provisions of the scheme shall be substituted 
 for the provisions of the Act," and that the proper statutory 
 authority has certified that the scheme is for his benefit, 
 and from this there is no appeal. The Dudbridge case has no 
 bearing. No one there, official or other, had certified that 
 the exercise of the option was for the infant's benefit. 
 Under this clause all workmen are treated as infants, and 
 a special department has to see that they enter on no 
 contract, but that which is for their benefit. 
 
 The right to contract out of rights given by the 
 common law or by the Employers Liability Act, 1880, and 
 any contracts entered into with reference to these rights, 
 are unaffected. The limitation of freedom of contract 
 extends only to rights given by the Workmen's Compen- 
 sation Act, 1906. 
 
 Form of A poiut has been raised that the Eegistrar of Friefadly 
 
 Eegistrar'a „ , . ' •« i • i • mi • 
 
 certificate. Societics must Certify the scheme in his own name. This 
 is plainly not so, as may be seen by referring to the forms 
 in the Second Schedule to the Friendly Societies Act, 
 1896. (a) 
 
 The objection has, then, been altered to one that when 
 the Eegistrar signs, as frequently in practice he does, the 
 signature must be his full and ordinary signature and not 
 by initials. This contention, though not finally negatived 
 in any case, in so many words is still equally baseless with 
 the others. (6) 
 
 (a) 59 & 60 Viot. o. 25. 
 
 (fc) Benjamin on Sales' (2nd ed.), 190. " There seems to be no doubt 
 that if the initials are intended as a signature by the party who writes 
 them, this will suffice": per Lord Westbury, Caton v. Oaton, L. E. 2, 
 H. of L. 127, 143. Op. The Queen v. Justices of Kent, L. R. 8, Q. B. 305 ; 
 In re Whitley Partners, Ltd., 32 Ch. D. 337, as to the validity of a signature 
 authorized to be made by an agent ; as to a printed name — Schneider v. 
 Norris, 2 M. & S. 286, per Lord Ellenborough, O.J., at 289 ; Willis, Sale of 
 Goods, 113 ; for the Scotch law, see Eeid v, Baxter, 7 01. & P.^ei. 
 
Contracting Out 433 
 
 The certificate may be given for a limited period, but Chap. VII. 
 for not less than five years, and may from time to time be Duration of 
 renewed either with or without modifications, (a) Though 
 the scheme is certified for a longer period, it may be 
 terminated before that period is arrived. The workmen, 
 or any one on their behalf, may complain to the Registrar 
 of Friendly Societies that the benefits of the scheme — 
 
 (1) no longer conform to the conditions of sub-sec. 1 
 
 of sec. 3 of the Act ; or 
 
 (2) are being violated ; or 
 
 (3) are not being fairly administered ; or 
 
 (4) that satisfactory reasons exist for revoking the 
 
 certificate. 
 
 This is an amendment of the Act of 1897 under which. Renewal scheme. 
 where the original scheme had come to an end and the 
 workmen had gone on working with a " renewal scheme " in 
 operation to which he had not signified his assent and was 
 injured, it was held that the onus was on the employer to 
 show that the workman had agreed to accept the renewal 
 scheme ; and failing proof of this, that his rights under the 
 Act remained. (&) There was besides evidence that know- 
 ledge of his dissent had been brought to the notice of the 
 employer. The case is of no particular importance since 
 it was decided on its particular facts, and no inference as 
 to onus can be drawn from it. The claim of the plaintiff 
 was admitted subject to a special defence. This the Court 
 held was not proved. The rule of onus is: the onus rests Euie of oums. 
 before evidence is gone into upon the party asserting the 
 affirmative; and it rests after evidence is gone into upon 
 
 (a) S. 3, sub-B. (2). Ante,^03. 
 
 (b) Wilson V. Ocean Goal Co., Ltd., 21 T. L. B. 195, 621. 
 
434 Workmen's Compensation Act, 1906 
 
 Chap. VII. the party against whom judgment would go if no further 
 
 evidence is given. 
 Treharneti. In the caso of Trohame v. Ocean Coal Co., in which 
 
 Ocean Coal Co. 
 
 judgment was delivered in the Court of Appeal at the 
 same time as the judgment in Wilson's case (the facts 
 in each case are identical), Collins, M.R., summarized 
 the conclusion of the County Court judge, from whom the 
 appeal came : " That the workman, having assented to the 
 original scheme, was bound by the subsequent scheme so 
 as to throw on him the onus of giving notice to his 
 employers if he objected to it." This the M.R. thought 
 was wrong. 
 
 The Act of 1906 provides for renewal schemes, which the 
 previous Act does not. Every scheme in force at the com- 
 mencement of this Act shall if recertified by the Registrar 
 of Friendly Societies have effect as if it were a scheme 
 under this Act. (a) 
 
 The Registrar shall recertify 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. (&). Any such scheme not recertified before 
 the expiration of six months from the commencement of 
 the Act is revoked, (e) It is difficult to suppose that a 
 workman would be more bound by a renewal scheme to 
 which he had not assented than to work under the terms 
 of an expired scheme. 
 
 The Registrar shall examine into any complaint, and 
 if satisfied that good cause exists for such complaint 
 shall, unless the cause of complaint is removed, revoke the 
 certificate, {d) When the certificate is revoked or expires, 
 any moneys or securities held for the purposes of the 
 
 (a) S. 15 (2). AnU, 323. (ft) lb. (3). Ante, 323. 
 
 (c) lb. (4). (d) S. 3 (4). AnU, 304. 
 
Contracting Out 435 
 
 scheme shall be distributed as arranged, between the em- Chap. VII. 
 ployer and the workmen, or in the event of disagreement 
 as may be determined by the Eegistrar of Friendly 
 Societies, (a) The employer has to furnish all accounts 
 and answer inquiries in regard to the scheme as may be 
 made or required by the Eegistrar of Friendly Societies. (6) 
 
 Where a scheme that has been certified provides for 
 payment of compensation by a Friendly Society, the pro- 
 visions of the proviso to sec. 8, sub-sec. (1) of sec. 16 and of 
 sec. 41 of the Friendly Societies, 1896, (c) shall not apply 
 to such society in respect of such scheme, (d) 
 
 The provisions referred to are as follows : — 
 
 Sec. 8. (1) — ^Provided that a friendly society which 
 contracts with any person for the assurance of an annuity 
 exceeding £50 per annum, or of a gross sum exceeding 
 £200, shall not be registered under 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 to the 
 National Debt Commissioners, or by some actuary approved 
 by the Treasury, who has exercised the profession of an 
 actuary for at least five years, are sent to the Eegistrar 
 with the application for registry. 
 
 Sec. 41 (1). — A member, or person claiming through a 
 member, of a registered friendly society or branch, shall 
 not be entitled to 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 of such societies or branches. 
 
 (a) S. 3 (5). Ante, 304. (6) S. 3 (6). Ante, 304. 
 
 (c) 59 & 60 Viot. u. 25. (d) First Schedule (21). Ante, 334. 
 
Colliery Co, 
 coDBidered. 
 
 436 Workmen's Compensation Act, 1906 
 
 Chap. VII. (2) Any sucli society or branch may require a member, 
 or person claiming through a member, to make and sign 
 a statutory declaration that the total amount to which that 
 member or person is entitled from one or more such 
 societies or branches does not exceed the sums aforesaid. 
 
 The exclusion of these enactments is necessary, as 
 payments under the Workmen's Compensation Act may 
 amount to £1 per week or in case of death to £300. 
 
 The Chief Eegistrar is to include in his annual report 
 the particulars of the proceedings of the Eegistrar under 
 the Act. (a) 
 
 Taylor ■». Ham- In Taylor v. Hamstead Colliery Co., (i) the Court of 
 Co., aid Appeal decided that where a workman had assented to 
 
 Williams ». ^ '■ 
 
 coiiSrv'co ^ scheme under the section we are considering, such " assent 
 is binding on his representatiTes, and has placed them in 
 the same position as if they were claiming compensation 
 under the Act." It has been suggested that this is in 
 conflict with "Williams v. Vauxhall Colliery Co., Ltd., (c) 
 where Cozens-Hardy, M.E., held that " under this Act the 
 dependants have a separate and independent right ... a 
 right which the workman cannot deprive them of except 
 in this sense, that the Act contemplates that the employer 
 is not from first to last bound to pay more than the 
 maximum compensation given by the Act, and is entitled 
 to take credit for any sums advanced by way of weekly 
 payments." An examination of the facts will show there 
 is no conflict. In the latter case the injured workman 
 did not come to the Court for compensation, but made an 
 arrangement under which he received half his weekly 
 earnings while he was laid up ; he subsequently got back 
 to work, but to different and more highly paid work than 
 
 (a) S. 3, sub-s. (7). Ante, 304. (6) [1904] 1 K. B. 888. 
 
 (c) [1907] 2 K. B. 433. 
 
Contracting Out 437 
 
 before his accident, from the effects of which ultimately Chap. yil. 
 he died. Nothing had been said about further compensation. 
 The widow claimed under the Act. The employers set up 
 against her claim " an implied release by the workman of 
 his right to further compensation." It was to these facts 
 then that Cozens-Hardy, M.R.'s expressions are to be 
 applied. In Taylor's case the workman had come into a 
 scheme under sec. 3 which requires the provision of 
 " scales of compensation not less favourable to the workmen 
 and their dependants than the corresponding scales con- 
 tained in this Act." (a) 
 
 The Workmen's Compensation Act applies to any em- Employment 
 
 under the Crown. 
 
 ployment under the Crown to which the Act would apply 
 if the employer were a private person. The Act of 1906, 
 however, specially exempts employment in the naval or 
 military services, (b) 
 
 In the case of employment in the private service of 
 the Crown the head of the department of the Royal 
 Household in which the injured workman is employed at 
 the time of the accident is to be deemed to be the employer. 
 
 The Treasury may, by warrant laid before Parliament, 
 modify for the purposes of the Workmen's Compensation 
 Act, 1900, the warrant made under sec. 1 of the Superan- 
 nuation Act, 1887. 
 
 They may also frame a scheme with the view of its 
 being certified by the Registrar of Friendly Societies under 
 sec. 3 of the Workmen's Compensation Act, 1906. (c) 
 
 This seems a fitting place to compare the merits of the comparison of 
 various methods of compensation open to workmen at law. ^^^0*'^°'°°' 
 
 obtaining 
 . compeDBation. 
 
 (a) The decision was under the Act of 1897. The quotation is from 
 the Act of 1906, which, for this purpose, is identical. 
 
 (6) S. 9 (1). Ante, 316. (c) S. 9 (2). Ante, 317. 
 
438 
 
 Workmen's Compensation Act, 1906 
 
 Chap. VII. 
 
 Comparative 
 advantages of 
 clalmB. 
 Common Law. 
 
 Employers' 
 Liability. 
 
 Workmen's 
 Compensation. 
 
 Summary. 
 
 If the claim can be made at common law this is in 
 every way the most advantageous method ; for the damages 
 recoverable are unlimited, payment in the case of an adult 
 is made in a lump sum at his unlimited disposal, and the 
 costs are regulated by the general law. 
 
 With the Employers Liability Act the matter is more 
 complicated. The damages here recoverable are limited 
 to the estimated earnings, during the three years preceding 
 the injury, of a person in the same grade employed during 
 those years in a like employment to that in which the 
 injured person is engaged at the time he is injured. Thus, 
 if a man earning £1 a week is killed, his relatives can 
 recover under this Act £156, which is precisely the amount 
 they can recover under the Workmen's Compensation Act. 
 But if the same man receives a comparatively trivial 
 injury, incapacitating him for three months, under the 
 Employers Liability Act, the jury may, in theory, award 
 him the full sum of £156; while the utmost he could 
 obtain under the Workmen's Compensation Acts would be 
 10s. a week for the three months. 
 
 From this it appears that there is no decided balance as 
 an absolute rule determining whether proceedings should be 
 taken either under the Employers Liability Act or the 
 Workmen's Compensation Acts. The particular circum- 
 stances must in each case be looked to. The general 
 considerations applicable may be summarized as follows : — 
 
 (1) Where there is common law negligence the common 
 law remedy had better be pursued. There is always 
 an opportunity, in the event of any technical failure, 
 of resorting to the procedure of sec. 1, sub-sec. 4 of 
 the Workmen's Compensation Act, 1906, if the action 
 is brought within six months. 
 
Comparison of Advantages 439 
 
 (2) In the case of an injury not likely to have protracted Chap. VII. 
 
 consequences, both the remedy at common law and 
 
 under the Employers Liability Act present oppor- 
 tunities of obtaining more substantial compensation 
 than can be awarded under the "Workmen's Com- 
 pensation Act. 
 
 (3) If the injury is a fatal one and there is no liability 
 
 at common law, and the deceased man's wages are 
 less than £1 a week, the procedure under the 
 Workmen's Compensation Act is more advantageous 
 than that under the Employers Liability Act. 
 
 (4) If the injury is a fatal one and there is no liability 
 
 in respect of it at common law, and more wages than 
 £2 a week were being earned by the deceased, the 
 most advantageous procedure is under the Employers 
 Liability Act. 
 
 (5) If the injury is a serious one, but one that will 
 
 probably not be accompanied by prolonged disability 
 or infirmity, the lump sum of three years' wages 
 under the Employers Liability Act is more advan- 
 tageous for the injured man than the maximum 
 weekly payment of £1, which is, moreover, liable to 
 review. 
 
 (6) If the injury is permanent, the injured man's life a 
 good one, and his wages large, the compensation 
 (which may amount to £1 a week for life) under the 
 Workmen's Compensation Act offers the greatest 
 advantages. 
 
 (7) If the workman is under twenty-one years of age, 
 and the injury produces total incapacity, and his 
 wages are small (under £1 a week), the Workmen's 
 Compensation Act is best to go under as he may 
 obtain 10s. a week during incapacity. 
 
Chap. VIII. 
 CHAPTER VIII _ 
 
 WOEKMEN AND EMPLOYEE 
 
 The last chapter has been occupied with considering the 
 nature and extent of the liability imposed by the legisla- 
 tion which has culminated in the Workmen's Compensation 
 Act, 1906. 
 
 We are now to consider who are workmen and who 
 employers (a) within the meaning of it ; for by these names 
 are signified those who are to profit and those who are to 
 pay by virtue of its provisions. 
 
 WoEKMEN. (6) 
 
 The Act of 1906 has thrown open the benefits of the Principle. 
 legislation to all classes of labour in place of the restriction 
 to the workers in selected and specially dangerous occupa- 
 tions, which was the note of the Act of 1897. A new 
 definition of workmati is therefore become necessary, and 
 this is by no means the least noteworthy portion of the new 
 Act. The words of this definition will be found in the 
 copy of the Act, (e) which is worded in a manner more than 
 usually embarrassing. Here an endeavour will be made to 
 break up the section so as more conveniently to elicit its 
 meaning. 
 
 (a) s. 1 (1). 
 
 (6) By 3. 1 (1) of the Interpretation Act, 1889 (52 & 53 Vict. o. 68), words 
 Importing the masculine gender shall include females. 
 
 (c) S. 13. Ante, 319, 
 
 B.E.L. 2 G 
 
442 Workmen*s Oompensation Act, 1906 
 
 Chap. VIII. We eliminate from the possibility of being regarded as 
 a workman under the Act — 
 
 (A) Any person (1) who is employed in any other way 
 
 than by way of manual labour ; and 
 (2) whose remuneration exceeds £250 a year. 
 
 (B) Any person (1) who is employed in a "casual 
 
 manner," and 
 (2) who is employed otherwise than for the 
 purposes of the employer's trade or business. 
 
 (C) A member of a police force. 
 
 (D) An outworker. 
 
 (E) A member of an employer's family dwelling in his 
 house. 
 
 Having excepted all persons coming within these five 
 classes, the definition of workman is " any person who has 
 entered into or works under a contract of service or 
 apprenticeship with an employer." Then the Act adds, 
 more, possibly, to clarify and emphasize the intention than 
 from any enacting force in the words, " whether by way of 
 manual labour, clerical work or otherwise, and whether the 
 contract is expressed or implied, is oral or in writing." 
 
 The intention to include, amongst workmen, persons 
 employed under a contract of service for work which is not 
 manual work, and those doing clerk's work is thus unmis- 
 takably affirmatively indicajted as it is negatively by the 
 exclusion of those from the benefits of the Act by the 
 exception of class (A) of those " whose remuneration exceeds 
 two hundred and fifty pounds a year." What effect the 
 words " or otherwise " have in this connection is not clear. 
 
 In Monck v. Hilton (a) Pollock, B., in interpreting this 
 
 (a) 2 Ex. D. 268 ; 46 L. J. M. C. 163, 169. 
 
Workmen 443 
 
 phrase, says " We must read the statute as if it had used Chap. VIII. 
 
 the words ... or other act of the like kind. The principle 
 
 upon which this rule is founded is thoroughly established, 
 
 and the only difficulty which arises is in the mode and 
 
 extent of its application to the provision in question." (a) 
 
 We must have regard to the established rule Verba generalia 
 
 restringuntv/r ad habilitatem rei vel personm ; which Lord Bacon 
 
 translates: "For all words, whether they be in deeds or 
 
 statutes, or otherwise, if they be general, and not express 
 
 and precise, shall be restrained unto the fitness of the matter 
 
 or person." (6) 
 
 Under the Act of 1897, in Simpson v. Ebbw Vale Steel, simpson «. Ebbw 
 
 ' '^ Vale Sleel, Iron 
 
 Iron & Coal Co. (c), the Court of Appeal held that the words ^'Coai co. 
 served to extend the limited meaning that would otherwise 
 be put on the word " Workmen," for whom the benefits of 
 the Act were intended beyond the class of those who laboured 
 with their hands, so that it should include " the classes whose 
 remuneration can properly be described as wages." "We 
 must interpret the Act as applying to persons whom 
 exhypothesi the Legislature regards as not being in a position 
 to protect themselves." Baenall v. Levinstein (d) reiterated Bagnaii ti. 
 the principle of Simpson's case, that in determining who is 
 a workman the popular meaning has to be given to the 
 term. But that was because in the Act of 1897 there was 
 no definition. The presence of the definition in the Act of 
 
 (a) See, however, Lowther v. Bentinok, L. E. 19 Eq. 166, per Sir George 
 Jessel, M.B., 170, and Sutton v. L. G. & D. By. Co., 12 T. L. B. 425, per 
 Lord Eussell, C.J., 426. Also Dunlop v. M'Cready, 2 F. 1027, per the Lord 
 President, at p. 1029 ; McGregor v. Dansken, 1 F. 536, " or otherwise," says 
 Lord Frazer, are words no doubt very comprehensive, " but they appear to 
 me to comprehend only 'difierent degrees or characters of service,' not 
 differences of kind." 
 
 (b) Max. Beg. 10. See per Grove, J., Gordon o. Jennings, 9 Q. B. D, 
 45 at 46 ; Eysteu v. Studd, 2 Plowd. 459 at 467. 
 
 (c) [1905] 1 K. B. 453. 
 
 (d) [1907] 1 K. B. 531. 
 
44:4 5^ Workmen's Compensation Act, 1906 
 
 Chap. VIII. 1906 has the effect of extending the benefits of the Act to 
 " any person who has entered into or works under a contract 
 of service." The applicant in Bagnall's case would be clearly 
 within this ; and on the assumption that his work was manual 
 labour he would be within the Act of 1906 ; while on the 
 assumption that his work was not manual labour, he would 
 be within the benefits of the Act till the fifth year of his 
 term ; but after that, on the increase of the salary to £260 
 per annum, he would be outside it. 
 
 Simpson 1). Ebbw Ncxt We come to consider Simpson's case, (a) the case of 
 
 Vale steel, Iron, .« i ,. i • i • -j i 
 
 & Coal Co. a certificated manager oi a coal mine who is paid a yearly 
 salary, and is not required to engage in manual labour. 
 Had he been engaged in manual labour the Act would 
 apply, though it is " the case of a man who is paid a salary 
 of £400 a year and has a house rent free, and who might be 
 paid treble as much." (6) But since the case is not one 
 of manual labour, the limitation of Class (A) takes effect. 
 The remuneration is more than £250 a year; and the 
 result of Simpson's case would not be affected by the Act 
 of 1906. The question remains, which was asked by 
 Collins, M.R., in Simpson's case, (e) Can it be supposed 
 that the legislature intended the compensation under the 
 Act to be payable in the case of "a man who might be 
 earning thousands a year " : compensation which in the 
 case of temporary incapacity is not to exceed twenty shillings 
 a week ? Certainly not ; but then the way of escape is that 
 though the work he is doing might by an abuse of language 
 be called manual labour, the force which gives it effect is 
 the power of education, calculation, or genius. 
 
 We are now to fix, so far as we can, the limits of the 
 phrase " contract of service." {d) 
 
 (a) [1905] 1 K. B. 453. (6) Per Collins, M.B„ I. c. 458. 
 
 (c) L. c. 458. (d) Ante, 288. 
 
Workmen 445 
 
 In order to constitute a contract of service there must Chap. VIII. 
 be either an express or an implied mutual agreement 
 binding one party to employ and remunerate, and the other 
 to serve for some determinate term or period ; but wherever 
 there is a contract for hiring or employment on the one 
 part, and service for wages or salary on the other, for a 
 specified time, there is an engagement on the part of the 
 employer to keep the employed in the relation in question 
 during that time, and not merely to pay him the wages for 
 the services at the end, and in none of these cases does 
 the obligation to keep retained and employed necessarily 
 import an obligation on the part of the master to supply 
 work, (a) 
 
 But it often happens that contracts are made between p&rtner not a 
 persons engaged in business and their subordinates that 
 instead of salary they are to be remunerated by percentages 
 or a share of the profits of the business. Eule (3) of sec. 2 
 of the Partnership Act, 1890, {b) provides that the receipt 
 by a person, of a share of the profits of a business is prima, 
 facie evidence that he is a partner in the business ; but the 
 receipt of such a share, or of a payment contingent on or 
 varying with the profits of a business, does not of itself 
 make him a partner in the business; and in particular a 
 contract for the remuneration of a servant or agent of a 
 person engaged in a business by a share of the profits of the 
 business does not of itself make the servant or agent a 
 partner in the business or liable as such. But where the 
 position of the workman is that of partner he is thereby 
 excluded from the benefit of the Act. (c) " When one 
 comes to analyse an arrangement of this kind, namely, one 
 by which a partner himself works, and receives sums which 
 
 (a) Per Crompton, J., Emmens v. Elderton, i H. L. C. 624 at 644. 
 
 (6) 53 & 54 Vict. c. 39. 
 
 (c) Ellis V. Joseph Ellis & Co., [1905] 1 K. B. 324, 328. 
 
446 
 
 Workmen's Compensation Act, 1906 
 
 Vamplew v, 
 Parkgate Iron 
 & Steel Co. 
 
 Chap. VIII. are called wages, it really does not create the relation of 
 employers and employed, but is in truth a mode of 
 adjusting the amount that must be taken to have been 
 contributed to the partnership assets, by a partner who has 
 made what is really a contribution in kind, and does not 
 affect his relation to the other partners, which is that of 
 co-adventurer and not of employee." 
 
 Again, "where a man undertakes to do work as a 
 contractor, that prima faeie at any rate negatives the 
 existence of the relation of employer and employed, and 
 shows that the contract is not one of employment 
 within the meaning of this Act," i.e. the Act of 1897 ; (a) 
 he has not entered into a contract of service with an 
 employer. 
 
 The Court of Appeal seem to have followed Simmons v. 
 Faulds in arriving at their decision, (b) There a foreman 
 bricklayer contracted to do a piece of work for a fixed sum, 
 supplying the labour and tools, but not the machinery. He 
 worked at the job and drew 75 per cent, of the price for the 
 work he had done; nevertheless he was outside the Act, 
 and held to be not a workman but a contractor. In arguing 
 Vamplew's case it was urged that Evans v. Penwyllt Dinas 
 Silica Brick Oo. (c) had been overlooked. A quarryman 
 was employed under a written agreement providing for 
 payment for every ton of material worked. His tools were 
 found; but he hired the men who worked under him for 
 him, and could discharge them. Having doubt as to 
 whether he came under the Workmen's Compensation Act 
 or not, he gave notice to terminate his employment, which 
 he resumed on an assurance that he would be entitled to 
 
 Simmons v. 
 Faulds. 
 
 Erans v. Pen- 
 wyllt Dinas Silica 
 Brick Co. 
 
 (a) Vamplew v. Parkgate Iron & Steel Co., [1903] 1 K. B. 851. For the 
 test of who is a contractor, see ante, 138. 
 
 (6) 17 T. L. R. 352. 
 
 (c) 18 T. L. R, 58. 
 
WorJsmen 447 
 
 compensation if he were injured. Injury having been sus- Chap VIII. 
 tained by him, and an application made under the Act, the 
 County Court judge found that applicant was a " workman." 
 The Court of Appeal affirmed the County Court judge ; as it 
 was difficult to distinguish the man's position from that of an 
 ordinary labourer at piece-work ; (a) and, moreover, he was in- 
 duced to resume working by the assurance that in the event 
 of accident he would be entitled to compensation. This, said 
 Mathew, L. J., in Vamplew's case, was the differentia from 
 Simmons's case ; for the ground of the decision in Evans's 
 case was " the special agreement come to that the applicant 
 should be treated as a workman within the meaning of the 
 Workmen's Compensation Act, 1897." (b) 
 
 Fitzpatrick v. Evans & Co. (c) is not a decision under PitzpaMck ». 
 
 ^ \ / Evans. 
 
 the Workmen's Compensation Act. Colliery owners entered 
 into an agreement with a contractor to sink and wall a shaft. 
 On entering on the work he signed the "record book," 
 binding him to observance of the regulations for the 
 safety of the mine. The Court of Appeal held that this did 
 not create a contract of service between him and the colliery 
 owners. "It is a question of fact whether the relation of 
 employer and employed had been established . . . ; but, as 
 in the case of other questions of fact, there must be some 
 reasonable evidence to go to the jury on ^the question." 
 " I do not think that the evidence of Morris to the effect 
 
 (a) Gp. Sadler v. Henlook, 4 B. & B. 570; Pateraon v. Lookhart, 
 7 F. 954. 
 
 (i) The Seoteh eases are quite in accord. McGregor v. Dansken, 1 F. 
 536; Dunlop v. M'Oready, 2 P. 1027; and Hayden v. Dick, 5 P. 150, where 
 the Lord Justice Clerk said : " There was no obligation on the deceased to 
 do work with his own hands." " There was no arrangement for the work 
 being done in any particular way, or at any particular time, and the 
 deceased could and did carry on the work as he and his partner chose. 
 The quarry master could not have dismissed him as a servant. If any 
 question arose, it could only be dealt with as a question of breach of 
 contract, and not as a breach of a contract of service." 
 
 (e) [1902] 1 K. B. 505. 
 
448 Workmen's Compensation Act, 1906 
 
 Chap. VIII. that if the certificated manager of the mine had given him 
 an order relating to the work he would have obeyed it and 
 would have expected his own workmen to do so, constituted 
 any evidence that the relation of employer and employed 
 existed between these workmen and the Colliery owners." (a) 
 
 Employment of The employment of a pauper under the scheme of the 
 pauper. ^qqx Laws is not within the Workmen's Compensation Act. 
 
 The first objection to his inclusion is that he has neither 
 entered into nor worked under a contract of service or 
 apprenticeship. Then if he is killed he can leave no 
 dependants. If he is injured, he has no weekly earnings ; 
 and there is no difference between the amount of his 
 average weekly earnings [nil] before the accident and the 
 average weekly amount he is earning or able to earn 
 after the accident ; or if he is able to earn wages after, he 
 has gained, not lost by the accident. 
 
 What the pauper's position is at common law or under 
 the Employers Liability Act is a different question where 
 the difiSculty is not the right of action but whom to sue. (&) 
 
 There is the authority of the chancellor of a northern 
 Curate. diocese that a curate is within the Workmen's Compensa- 
 
 tion Act. This eminent person seems to have spoken 
 unadvisedly ; for in view of the complicated provisions of 
 
 1 & 2 Vict. c. 106, the incumbent (rector or vicar) could 
 hardly be termed an " employer," nor the curate a person 
 who has entered into a contract of service. The presence 
 of an element or two which go to create the relationship is 
 
 (a) Per Collins, M.R., I. c. 610. In Squire v. Midland Lace Co., [1905] 
 
 2 K. B. 448, the fact that laoe " clippers " were not bound personally to 
 work in performance of their contract was held to exclude them from the 
 definition of workman in s. 10 of the Employers and Workmen's Act, 1875. 
 The words there are " a contract of service or a contract personally to 
 execute any work or labour." 
 
 (6) See Tozeland v. West Ham Union, [1907] 1 K. B. 920 ; but as to 
 work under 5 Bdw. VII. c. 18 see Porton v. The Central Unemployed Body 
 for London, Times newspaper, 28th Nov., 1908. 
 
Workmen 449 
 
 not sufficient to constitute it where there are present other Ghap. VIII. 
 elements quite incongruous. The incumbent cannot 
 dismiss his curate nor the curate depart without the con- 
 sent of the bishop ; nor without this consent is there any 
 coercive power, while from the order of the incumbent there 
 is an appeal to the bishop. The relation is one sui generis, 
 and with no affinities other than verbal and merely 
 superficial, with the relationship between one who enters 
 into a contract of service with an employer and that 
 employer. Qui hseret in litera hserei in cortioe. (a) 
 
 Neither is a parish clerk a workman ; for his is prima Parisb ciert. 
 facie a freehold office (b) ; and though he be nominated by 
 the parson, when he is in he becomes not the parson's clerk, 
 but the clerk of the parish, who, therefore cannot turn him 
 out at pleasure, (e) This seems to be the test with regard 
 to other ecclesiastical offices. If there is a life estate in the 
 office, the life tenant is not a workman. If he works under 
 a contract he is. Difficulties often arise on the point 
 — between whom is the contract, the officer, and the incum- 
 bent, or the churchwardens, or the vestry, or {ill or some 
 or any. The head master of a grammar school was not schoolmaster. 
 a workman within the Act ; (d) for usually he worked 
 under a scheme of the Charity Commission or the Board of 
 Education, by which the governing body may not interfere 
 with his acts in the management of the school, and there was 
 no contract of service under an employer. The assistant 
 masters of a grammar school were probably workmen. Their 
 contract, however, was with the head master, (e) They had 
 no remedy against the Board of Governors ; probably they 
 had against the head master, and the governors were 
 
 {a) Eysten v. Studd, 2 Plowd. 459 at 467. 
 
 (6) Eex V. Ashton Sayer, 159 ; Bex v. Sterling Sayer, 174. 
 
 (o) Per Holt, O.J., Vin. Abridg. Parish Clerk, 541. 
 
 (d) Op. Wright v. Zetland (Marijms), [1908] 1 K. B. 63. 
 
450 
 
 WorJcmen's Compensation Act, 1906 
 
 Chap. VIII. bound to indemnify him from a statutory liability imposed 
 in respect of his school. But now (a) any master in an 
 endowed school by whomsoever appointed shall be deemed 
 to be in the employment of the governing body for the time 
 being of the school. By the interpretation section " master " 
 includes the head master. 
 
 The assistants in a village school have their remedy against 
 the committee or the incumbent, or such person by whom they 
 are appointed, and the head teacher also. The contracts of 
 local education authorities are probably generally made 
 directly with the teacher, even to the junior pupil teacher, and 
 the head teacher stands to themmerely as foreman or manager. 
 
 Church choir. Paid members of a church choir are probably within 
 
 the Act ; but the terms of their appointment must be looked 
 to, and their employer would probably not be the choir 
 
 Organist. master but his. An organist would not be within the Act 
 
 if the considerations before noted are valid. His work is 
 not a contract of service where the employer may direct 
 and control, but a contract for the display of skill or talent 
 which no more admits of it than the exercise of the ma&ual 
 skill of the surgeon or the dialectics of the barrister ; he is 
 concerned with results, and the master does not prescribe 
 the means by which they are attained, (b) The organ 
 blower's is a baser employment. 
 
 Seamen. 
 Masters, seamen, and apprentices to the sea service, and 
 apprentices in the sea fishing service are workmen ; (c) if — 
 (1) They have entered into or work under a contract 
 of service or apprenticeship with an employer ; and 
 
 (a) The Endowed Sehools (Masters) Act, 1908, 8 Edw. VII. o. 39, s. 1. 
 
 (6) See per BramweU, L.J., Evidence before Oommittee on Employers 
 Liability, Parliamentary Eeports, Committees' Papers, 1877, vol. iii., 58. 
 Having " a right to say to the employer, ' I agree to do it, but I shall do it 
 after my own fashion ; I shall begin the waU at this end, and not at the 
 other ' ; there the relation of master and man does not exist." 
 
 (c) S. 7 (1). As to apprentices, see Merchant Shipping Act, 1906 
 (6 Edw. VII. c. 48), s. 49 (2). 
 
Seamen 451 
 
 (2) They are members of the crew of any ship registered Chap. VIII. 
 in the United Kingdom, (a) or of any other 
 British ship (J) of which the owner (c) or the 
 managing owner or manager (d) resides, or has his 
 principal place of business, in the United Kingdom. 
 
 There are certain modifications in regard to the pro- 
 ceedings under the Act by seamen, the consideration of 
 which we shall defer till we deal with the procedure of the 
 Act generally, (e) 
 
 If a workman who is not a seaman is on board a workman on 
 
 ship, though not 
 
 ship and is injured he is not prevented from recovering fL^^™"" ^'*'° 
 because he is not named in this section ; for there seems 
 no reason, as was said in the Irish case of O'Hanlon v. 
 Dundalk, etc., Steam Packet Co., (/) " to suppose because the 
 accident happened in or upon a ship that therefore it 
 is to be excluded from the operation of the Act of 
 Parliament." Thus the "painters who go on board to 
 paint the ship, or stevedores who go there to stow or trim 
 cargo," though not seamen (g) are entitled to the benefit of 
 the Act as workmen ; and so are the cattlemen employed 
 by the cargo owners to feed a deck cargo of cattle, who 
 though " they were not part of the crew at all " would yet 
 be " the servants of the cargo owners." {h) 
 
 By the definition clause " ship," " vessel," " seaman " ceflnitionB. 
 
 (a) 57 & 58 Viot. c. 60, ss. 2, 3. 
 
 (b) 5T & 58 Viot. c. 60, s. 1. 
 
 (c) 57 & 58 Viot. c. 60, ss. 502-9, extended by 6 Edw. VII. o. 48, s. 71, 
 " to inolude any charterer to whom the ship is demised." 
 
 (£) 6 Edw. VII. c. 68, s. 13. " Manager " in relation to a ship means 
 the snip's husband, or other person to whom the management of the ship 
 is entrusted by, or on behalf of the owner. 
 
 (e) Post, 697. 
 
 (/) 33 Ir. L. T. E. 36. 
 
 (g) Corbett v. Pearoe, [1904] 2 K. B. 422, per Lord Alverstone, O.J., 426. 
 
 (h) Anglo-Argentine Live Stock and Produce Agency v. Temperley Ship- 
 ping Co., [1899] 2 Q. B. 403, per Bigham, J., at 412. 
 
462 Worhnen's Compensation Act, 1906 
 
 Ghap. VIII. and " port " have the same meanings as the Merchant Ship- 
 ping Act, 1894. (a) This refers to sec. 742, where we find 
 " ship" "includes every description of vessel used in navi- 
 gation, (6) not propelled by oars." (c) " Vessel " " includes 
 any ship or boat or any other description of vessel used in 
 navigation." " Seamen " " includes every person (except 
 masters, pilots, and apprentices duly indentured and 
 registered) employed or engaged in any capacity on board 
 any ship." {d) " Port " " includes place." (e) 
 
 These definitions do not exclude the ordinary meanings 
 attached to the terms they define ; they add to them any 
 additional meaning they may express. (/) 
 
 Exemption. The Act Specially excludes " 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 vessels." {g) Were 
 this not provided for by enactment it would result from the 
 decision in Ellis v. Joseph Ellis. Qi) There is a decision on 
 the section in Scotland. The sole remuneration of the mate 
 of a steam trawler was one and one-eighth share of the net 
 balance of the gross price of the fish caught on a trip, after 
 deducting certain specified charges, not including the re- 
 muneration of the other members of the crew, who were paid 
 
 (a) S. 13. Ante, 321. , 
 
 (6) A launch employed in pleasure trips round an artificial lake half a 
 mile long by one hundred and eighty yards wide is not a vessel used in 
 navigation : Mayor of Southport v. Morriss, [1893] 1 Q. B. 359 : Oakes v 
 Monkland Iron Co., 11 B. 579. 
 
 (c) A hopper barge without any means of propulsion is a ship : The 
 Mao, 7 P. D. 126 ; but a gas float is not : Wells v. Owners of Gas Float, 
 Whitton, No. 2, [1897] A. C. 337 ; The Euby, (No. 2) 1898, P. 59. 
 
 (d) Corbett v. Pearce, [1904] 2 K. B. 422. 
 
 (e) See Hunter v. Northern Marine Insuraoioe Co., 13 App. Cas 717- 
 Assheton Smith v. Owen, [1906] 1 Ch. 179. ' 
 
 (/) Per Blackburn, J., ex parte Ferguson, L. E. 6 Q. B. 280 at 291 ; per 
 Lord Selborne, Robinson v. Barton Eooles Local Board 8 Add Gas 
 798 at 901. ' '^''' 
 
 {g) S. 7 (2). Ante, 311. 
 
 (fc) [1905] 1 K. B. 324. 
 
Seamen 453 
 
 fixed wages. This was held to be within the exception, (a) Chap. VIII. 
 On the other hand a pilot to whom Part X. of the Merchant pjj^j 
 Shipping Act, 1894, applies is within the Act, (b) i.e. if he is 
 a " workman " within the meaning of it — has entered into a 
 contract of service with an employer, (c) Sec. 742 of the 
 Merchant Shipping Act, 1894, {d) defines " pilot " as meaning 
 " any person not belonging to a ship who has the conduct 
 thereof." 
 
 A foreign sailor working on a foreign ship would Foreign saiior 
 obviously not be entitled to recover against his employer ; 
 because at the time he was injured his ship might be 
 in British waters or in a British port, (e) A foreign 
 sailor on a British ship would equally obviously be 
 entitled under the Act. (/) But a British workman on a 
 foreign ship working in a British port and injured, would 
 not be deprived of the remedy of the Act, because his con- 
 tract in the jurisdiction was with a foreigner. " It would 
 be to my mind," says Lord Halsbury, C, " a most unreason- 
 able and extraordinary extension of that immunity given 
 to persons interested in seafaring adventure to suppose 
 because the accident happened in or upon a ship that 
 therefore it is to be excluded from the operation of the 
 Act of Parliament generally. I know of no such principle ; 
 and therefore one must examine and see what the facts are 
 that we are dealing with as regards the accident which is 
 the subject-matter of this inquiry." In the case referred 
 to the workman, though working upon a ship, "appears 
 
 (a) Gill V. Aberdeen Steam Trawling & Pishing Co., Ltd., [1908] S. 0. 
 328. 
 
 (6) S. 7 (3). 
 
 (c) S. 18. 
 
 \d) 57 & 58 Viot. o. 60. 
 
 (e) The M. Moxham, P. D. 107, per Mellish, L.J., at 112: "As to acts 
 done on board a ship itself, no doubt the English ship carries the English 
 law with it," and by parity a foreign ship the foreign law. ^ 
 
 '(/) S. 7(1). - 
 
454 Workmen's Compensation Act, 1906 
 
 Chap. VIII. to have been an ordinary labourer employed for the purpose 
 of doing anything that was required to be done." He was 
 held within the Act of 1897. Assume then that he had 
 been working on a foreign ship within the jurisdiction, 
 the owner would be none the less liable. By the present 
 Act the workman's remedy is made more effectual by 
 a provision for the detention of the foreign ship, (a) 
 
 Seaman left Where an injured master seaman or apprentice is dis- 
 
 behind by his , . 
 
 ship. charged or left behind in a British possession, or in a 
 
 foreign country, depositions may be taken and transmitted 
 to the Board of Trade, and are to be admissible evidence 
 in any proceeding for enforcing the claim as provided by 
 sees. 691 and 695 of the Merchant Shipping Act, 1894. (b) 
 
 Domestic Domostic scrvauts, hotel waiters, shop assistants, and 
 
 servants, clerks, -,_. n i < ^ i»>\i ii 
 
 etc. (by Virtue of the inclusion of " clerical work ) tne whole 
 
 army of ofiSce employes, provided their remuneration does 
 not exceed two hundred and fifty pounds a year, have the 
 benefits of the Act secured to them, (c) 
 Exceptions. We are now to note the exceptions which we have 
 
 divided into five classes, (d) 
 
 (A) Any person (1) who is employed in any other way 
 than by way of manual labour ; and 
 (2) whose remuneration exceeds two hundred and 
 fifty pounds a year. 
 Mannaiiabour (1) Manual labour (e) has been distinguished from 
 
 and manual 
 
 work. manual work. This latter covers work that indeed is done 
 
 by the hand, but in which the brain, not the muscles, is 
 the governing factor. A navvy's work is almost exclu- 
 sively the application of muscular exertion, the governing 
 force of the brain is small, even to being incommensurable. 
 
 (a) S. 11 (1). The procedure in this particular will be considered later. 
 Post, 697. 
 
 (6) S. 7 (c). Ante, 309. (c) S. 13. Ante, 320. 
 
 (d) Ante, 442. (o) Ante, 277. 
 
WorTcmen 455 
 
 On the other hand, with an accountant's clerk the manual Chap. VIII. 
 effort is small, though it is distinctly commensurable in the 
 entering up of books and copying out of accounts; while 
 the main business with which he is occupied, the casting or 
 co-ordinating of accounts is mainly an occupation of the 
 brain. To this class belong telegraph and telephone clerks, 
 and draughtsmen and the rest of this sort of employments. 
 They are yet to be reckoned as workmen till (2) their 
 remuneration exceeds £250 a year. A miner, for instance, if 
 he digs or blasts, or in any way is occupied with manual 
 labour in the pit, has the advantage of the Act, whatever 
 his earnings; but if he belongs to the class who perform 
 the office work, the staple of whose occupation is intel- 
 lectual and only subordinately physical, he becomes 
 excluded from the Act so soon as his remuneration touches 
 i;250 per annum. To state the point somewhat differently — 
 where the claimant has remuneration of more than £250 
 per annum an inquiry has to be made: is he employed, 
 that is substantially, mainly employed by way of manual 
 labour or not ? If he is, he continues entitled ; if he is 
 not, he becomes disentitled. There is yet one more 
 caution : the contract must be " a contract of service or 
 apprenticeship with an employer," a contract where the 
 employer has a right to intervene and order the processes, 
 and is not bound to wait with his criticisms for the result. 
 
 (B) Any person (1) who is employed in a casual casual manner. 
 manner ; and 
 
 (2) who is employed otherwise than for the pur- 
 poses of the employer's trade or business. 
 
 (1) The undefined term of the first requisition of this 
 exception is " in a casual manner." 
 
456 
 
 Workmen's Ccmipensation Act, 1906 
 
 Chap. VIII 
 
 Munster v. 
 Cammell & Co. 
 
 Hatbawa;f v, 
 Argus FriDting 
 Co. 
 
 The phrase " the casual nature of the employment" occurs 
 in the First Schedule." (a) 
 
 There are instances where the word " casual " has received 
 legislative interpretation. As for example in 34 & 35 Vict, 
 c. 108, s. 3, a casual pauper is defined, " any destitute way- 
 farer or wanderer, applying for, or receiving relief." 
 
 A " casual ward " is defined, " any ward or wards, building 
 or premises, set apart or provided for the reception and 
 relief of destitute wayfarers and wanderers." 
 
 There is also judicial authority; as for example in 
 Munster v. Cammell & Co., (6) where Fry, J., interpreting the 
 expression " any casual vacancy," i.e. in a body of directors 
 says it means any vacancy " arising otherwise than by the 
 retirement in rotation pointed out by the previous articles." 
 And more directly in Hathaway v. Argus Printing Co., (c) 
 where Collins, L. J., says : " The question is whether casual 
 work done for the same employer can be brought in to swell 
 the average earnings." After saying that the arbitrator must 
 consider whether the different periods of employment are 
 not separated by intervals which negative continuity in the 
 employment, he adds, " To enable one to say that a series 
 of short periods should be taken together and treated as a 
 continuous term there must be some nexus to join them. 
 There must be some contract express or implied which 
 raises a reasonable expectation of continuity in the employ- 
 ment. In the absence of that nexus casual engagements 
 on non-contract days do not constitute one continuous 
 employment, for they are not bound together." 
 
 The Oxford Dictionary (c?) defines the word "casual" 
 " depending on chance ; depending on or produced by chance ; 
 occurring or coming at uncertain times ; not to be calculated 
 
 (6) 21 Ch. D. 183 at 187. 
 Giles V. Belford, Smith & Co., [1903] 
 (d) sub voce. 
 
 [a) S. 1 (2) (4 
 (c[ [1901] 1 ^ 
 . B. " ■ 
 
 1 K. B. 843, 844. 
 
 Ante, 327. 
 B. 96 at 100. 
 
Casual Employment 457 
 
 on ; unsettled ; coming without design or premeditation ; Chap. VIII. 
 casual labourer : one who does casual or occasional jobs." 
 
 The notion prominent in these meanings is intermittance. Considered. 
 Each case is independent of any other case. There is no 
 nexus of contract that binds one case of casual employment 
 with another; though the notion of a recurrence of em- 
 ployment is by no means absent, that of continuance is. 
 Employment may be given extending over many years 
 whenever, may be, a recurrent occasion arises, but this 
 employment is casual so long as it is under a contract for 
 the occasion only and not in pursuance of a standing 
 engagement and of right. The fact that the same person is 
 employed at recurring times to do recurring work is not even 
 an element in the consideration whether it is casual or not ; 
 the material fact is whether the work is under a contract or 
 not. If the employer has an unfettered right to go else- 
 where, the employment is casual ; if he has not then the em- 
 ployment is not casual, though the work done in it may be so. 
 
 The nature of a casual employment has, moreover, been the hiu ». Begg. 
 subject of decision by the Court of Appeal, (a) Applicant 
 was the brother of a window-cleaner who met his death while 
 cleaning windows at a private house. For two years, 
 whenever the windows, wanted cleaning, at irregular intervals 
 of about a month or six weeks, a postcard was sent by 
 one of the servants asking the deceased to call and clean 
 them. The County Court judge held that this regularity 
 of application and service constituted continuity apart from 
 any actual contract. The Court of Appeal was of another 
 opinion. " There was no engagement that he [the window- 
 cleaner] should be employed. No complaint could have 
 been made if any other person had been employed. It 
 was uncertain when any person would have been employed." 
 
 (a) HUl V, 3p§§, [1908] 2 K. B. 802 ; 24 T. L. E. 711. 
 JB.E.L. 2 H 
 
458 Worhmen's Compensation Act, 1906 
 
 Chap. VIII. " A broad distinction is taken in the Act. If a man for the 
 purposes of his trade or business employs another, it matters 
 not that the employment is of a casual nature, such as, for 
 example, that of a dock labourer, and the man so employed is 
 a workman within the meaning of the Act. But an entirely 
 different principle is applicable to the case of what, for the 
 sake of distinction, I (a) may call domestic engagements, 
 I am not prepared to extend the burdens of the Act to 
 householders who simply call in a man, not part of their 
 regular establishment, to do a particular job, as and when 
 necessity arises." Buckley, L.J., pointed out (6) that the 
 words of the exception are not " who is casually employed," 
 but " whose employment is of a casual nature." In the one 
 case the position of the man would have to be first looked 
 to ; in the other, the employment. The L.J. thus happily 
 
 Buckley, L.J. 'a iUustratcs : " Suppose that a host, when from time to time 
 
 iUustratioD. f *■ ^ 
 
 he entertains his friends at dinner, or his wife gives a 
 reception or a dance, has been in the habit for many years 
 of employing the same men to come in and wait at his 
 table or assist at the reception, it may be said that their 
 employment is regular. But the employment is of a casual 
 nature. It depends upon the whim or the hospitable 
 instincts or the social obligations of the host, whether he 
 gives any, and how many, dinner parties or receptions, and 
 the number of men he will want will vary with the number 
 of his guests. In such a case the waiters may not in- 
 correctly be said to be regularly employed in an employment 
 of a casual nature. The employment in the present case 
 was, I think, of a casual nature. The lady might have gone 
 abroad for some months or might have let her house, and 
 in either of these cases the employment would, or might, 
 have ceased. If she remained at home there was, no doubt, 
 a well-founded expectation of employment, which would 
 
 (o) Cozens-Hardy, M.R. (b) [1808] 2 K. B. 805, 
 
Casual Employment 459 
 
 normally have resulted hx employment at intervals more or Chap. VIII. 
 less regular. But the employment remained of a casual 
 nature." Hill v. Begg was greatly pressed upon the Court in Bewhurst ». 
 the case of Dewhurst v. Mather, (a) where the applicant was 
 a washerwoman who went to the place where she was ulti- 
 mately injured " every Friday and every other Tuesday." 
 The County Court judge held that this was evidence of a con- 
 tract, which he found to exist, and that the washerwoman 
 was a workman under the Act. In this he was supported by 
 the Court of Appeal — the facts were inconsistent with any 
 other conclusion. The work was regular though intermittent. 
 
 (2) The second limb of this exception is that the Employment not 
 
 for the purposes 
 
 "casual" employment must not be for the purposes of the of the employer's 
 
 ^ '' ■»■ ^ trade or business. 
 
 employer's " trade or business." (h) Sec. 13 provides that 
 " 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." 
 "Trade" and "business" are not synonymous terms. 
 School-keeping, for instance, is a business; but is not a 
 trade, (e) " When we look into the dictionaries as to the 
 meaning; of the word ' business ' I do not think they throw 
 much light upon it. The word means almost anything 
 which is an occupation, as distinguished from a pleasure — 
 anything which is an occupation or duty which requires 
 attention is a business. I do not think we can get much 
 aid from the dictionary. We must look at the words in 
 the ordinary sense." (d) 
 
 Mr. Rueffff thinks (e) " that to constitute ' trade or what constitutes 
 
 Ob \ / , » "trade or 
 
 business' there must be an exchange or barter of goods business"? 
 
 (a) [1908] 2 K. B. 754 ; 24 T. L. E. 819. 
 
 (6) See per Jessel, M.R., Smith v. Anderson, 15 Oh. D. 247 at 258, 260. 
 (c) Doe V. Keeling, 1 M. & S. 98, 100. See Mulrooney v. Todd and the 
 Lord Mayor of Bradford, Times newspaper, 28th Nov., 1908. 
 {d) Per Lindley, L.J., Eolls v. Miller, 27 Oh. D. 71, 88. 
 (e) Employers Liability (7th ed.), 229. 
 
460 Workmen's Compensation Act, 1906 
 
 Chap. VIII. or exercise of an employment for the purpose of securing an 
 
 advantage, which may be estimated in money or money's 
 
 worth, either for the person exercising the trade or business, 
 or for others." This is not the opinion of the Court of 
 Appeal in the case last noticed, which was that of a charitable 
 institution, called a "Home for Working Girls," where the 
 inmates were provided with board and lodging, whether any 
 payment was taken or not; nor yet of Buckley, J., in 
 Barnard Castle Urban Council v. Wilson ; (a) nor yet prob- 
 ably in the common use of language ; and Mr. Ruegg's 
 conclusion " that all casual labour employed by religious or 
 philanthropic or quasi-philanthropic institutions and societies 
 for purposes entirely religious or philanthropic is not within 
 the Act " does not carry assent through its intrinsic reason- 
 ableness. There seems some unreason in supposing that a man 
 injured while cleaning windows for the Bible Society should 
 be disentitled to compensation under the Act, while if he 
 were doing the same work next door at the savings bank 
 branch of the Post Office he could recover. 
 
 If, then, the workman is employed ia a casual employ- 
 ment, yet one which is for the purposes of the employer's 
 trade or business, he is not excluded from the benefits of the 
 Act. An object of the Act appears to be to protect all work- 
 men engaged in the industrial system of the country. Along 
 with these are included, as it were incidentally, domestic 
 servants and others to whom the main intent of the Act is 
 directed, but who profit by the generality of its principle. 
 
 In the case of these last, limitations yet remain. One 
 of these is found where the employment of a member of 
 this class is of a casual nature ; but this exception does not 
 extend to the case of one casually employed in the course of 
 a trade or business. The actual employment may be the same 
 in both cases ; say to pack a crate of china to send to an 
 
 (a) [1901] 2 Ch. 813, 817 ; [1902] 2 Ch. 746, in 0. of A. 
 
Workmen 461 
 
 exhibition. If the exhibitor is a manufacturer sending to Chap. VIII. 
 the exhibition from his trade stock, the packer is a workman 
 within the Act. If he is the owner of a private collection 
 and is sending choice specimens therefrom, the packer's 
 employment is of a casual nature and is excluded from the 
 benefit of the Act. 
 
 (C) A Member of a Police Force. 
 
 The definition section (a) interprets this to mean "a 
 police force to which the Police Act, 1890, (b) or the Police 
 (Scotland) Act, 1890, (e) applies, the City of London Police 
 Force, the Koyal Irish Constabulary, and the Dublin 
 Metropolitan Police Force. 
 
 (D) An Oviworker. 
 
 Section 13 defines an outworker as " 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, (d) in his own home or on other premises not under 
 the control or management of the person who gave out 
 materials or articles." 
 
 This term first appears in the Factory and Workshop under Factory 
 
 . . and Workshop 
 
 Act, 1891, (e) sec. 27 ; by which the occupier of every factory Act, i89i. 
 and every contractor employed by any such occupier in the 
 business of the factory had the duty imposed, after an order 
 of the Secretary of State, " to keep in the prescribed form 
 and with the prescribed particulars lists showing the names 
 of all persons directly employed by him, either as workman 
 or as contractor, in the business of the factory or workshop, 
 
 (o) S. 13. Ante, 320. 
 
 (6) 83 & 54 Viot. o. 45. 
 
 (e) 53 & 54 Viot. o. 67. 
 
 (c[} PuUers, Ltd. v. Squire, [1901] 2 K. B. 209; Hoare v. Robert 
 Green, Ltd., [1907] 2 K. B. 815. 
 
 (e) 46 & 47 Viot. o. 53. 
 
462 Workmen's Compensation Act, 1906 
 
 Chap. VIII. outside the factory or workshop, and the places where they 
 are employed." 
 
 By the Factory and Workshop Act, 1901, (a) this duty 
 is considerably extended. 
 
 The principle at the bottom of this exception is that no 
 one is to be rendered liable for accidents arising out of or 
 in the course of the employment of those who, carrying on 
 their own business in their own way, and not on their 
 employer's premises and without opportunity for his inter- 
 Tention or supervision, work upon articles or materials 
 supplied by him and bailed to them to do work on. 
 
 • 
 
 (D) A Member of the Employer's family. 
 
 Section 13 (b) names these wife or husband, father, 
 mother, grandfather, grandmother, stepfather, stepmother, 
 son, daughter, grandson, granddaughter, stepson, step- 
 daughter, brother, sister, half-brother, half-sister. 
 
 Where the workman is dead his rights pass to his legal 
 personal representative (e) or to his dependants, {d) or other 
 person (e) to whom or for whose benefit compensation is 
 payable. (/) 
 
 Dependants. 
 
 Definition. The definition of dependants is simplified from the 
 
 preceding Act. It now runs, {g) " 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 
 
 (a) 1 Edw. VII. 0. 22, s. 107. 
 
 (6) 6 Edw. VII. c. 58. 
 
 (c) Ante, 289. {d) Post, 462-476. (e) Post, 518. 
 
 (/) 6 Edw. VII. 0. 58, s. 13. 
 
 (g) S. 13. Ante, 320. 
 
i)ependants 463 
 
 been so dependent." (a) So far the effect is substantially Chap. VIII. 
 identical with the Act of 1897, which contemplated the 
 inclusion of brothers and sisters both of the whole and the half- 
 blood. There now follows an addendum by which an illegiti- 
 mate child is included amongst the dependants of its parent 
 or grandparent who may be killed through personal injuries 
 received arising out of and in the course of his employment, 
 in those cases where such illegitimate child was dependent 
 on the earnings of the deceased workman ; and in the like 
 case, when an illegitimate child leaves a parent or grand- 
 parent so dependent the parent or grandparent is included 
 as a dependant of the child, and is made entitled to the 
 benefit of the Act. 
 
 The first question that has to be determined is what Dependency, 
 is dependency ? Lord Halsbury, C, in the House of Lords 
 in Main Colliery Co. v. Davies, (&) treated this purely as a 
 question of fact : dependency is an ordinary word with well- 
 ascertained popular meanings. It is to be decided in each 
 case whether the facts bring it within that popular meaning. 
 Lord Halsbury, C.'s words are : " My Lords, I am unable to c/s'VSw.*"'^' 
 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 ' — I am not quite 
 certain what it means, but I am quite certain that no human 
 intellect would be able to ascertain exactly what the 
 standard was if one had to deal with such a question — 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 
 
 (o) These are new words and probably unnecessary. See Stanland v. 
 N. E. Steel Co., Ltd., noticed in Williams v. Ocean Goal Co., Ltd., [1907] 
 2 K. B. 422 ; Sneddon v. Bobert Addie & Sons' Collieries, Ltd., 6 F. 992. 
 In the rules "dependants" includes persons who claim as dependants. 
 W. C. R. 1907, r. i (3). 
 
 (6) [1900] A. C. 358. 
 
464 Workmen's Compensation Act, 1906 
 
 Chap. VIII. extremely obscure that I cannot believe that the legislature 
 
 intended it to be solved. What the family was in fact 
 
 earning, what the family was in fact spending, for the 
 purpose of its maintenance as a family, seems to me to be 
 the only thing which the County Court judge could pro- 
 perly regard, and that being the thing which the County 
 Court judge ought to regard, I think in this case he has 
 regarded it, and accordingly it appears to me that the 
 question of fact, and the only question of fact, was one 
 which the County Court judge has properly answered." 
 This was approved by the other learned Lords present, with 
 
 LordDavey's the exception of Lord Shand. As Lord Davey shortly 
 expressed the decision of the House : " That is a much 
 more satisfactory way of construing this Act — to look at 
 their [the dependants'] actual income and actual expendi- 
 ture rather than to introduce some vague and uncertain 
 standard which it is impossible to lay down with precision." 
 
 The Scotch Courts, it is said, treated this matter of 
 
 dependency, in cases of husband and wife at any rate, as 
 
 Cunningham i). a qucstion of law. Thus, in Cunningham v. McGregor, (a) 
 
 McGregor. , . o i • i i 
 
 Lord Young says that the mere existence oi this legal 
 right to support ' raised the legal presumption that a wife 
 is wholly dependent upon her husband." But in Turners, 
 Ltd. V. Gillies or Whitefield, (b) where a wife claimed as 
 dependent on her husband. Lord Adams says : " I do not 
 think that the fact that the husband was under a legal 
 obligation to support her makes any difference; it does 
 
 (a) 3 F. 775. 
 
 (6) 6 P. 822. Thia was followed in Lindsay v. McGlashen & Son, 45 So. 
 L. B. 559, where Lord Ardwall expressed " ooncurrenoe with what was said by 
 the Lord President on the construction of this Act in the case of Baird, 8 
 P. 438, and in particular I concur in his criticism of Lord Young's judg- 
 ment in the case of Sneddon v. Addie." The opinion referred to was that 
 there is no presumption of law that a wife is dependent on her husband, 
 but merely an inference of fact. 
 
Dependants 465 
 
 not alter the fact that she was not dependent on his Chap. VIII. 
 earnings at the time of his death." 
 
 In Sneddon v. Eobert Addie and Sons' Collieries, Ltd., (a) Sneddon «. 
 
 ' ^ ■' Robert Addie & 
 
 another case of husband and wife, where the husband sons' coiuerieB. 
 deserted her and contributed nothing to her support, Lord 
 Moncreiff observed "a husband is primarily bound to 
 aliment his wife," and Turners, Ltd. v. Gillies or Whitefield 
 is treated as an exceptional case, where, " notwithstanding 
 that primary obligation, the wife could not be said in any 
 reasonable sense to be wholly dependent on his earnings." 
 
 The Irish case of Queen v. Clarke, (b) is, again, the case Queen u. ciartc. 
 of husband and wife. At the time of the husband's death 
 the wife had gone to her parents and was supported by 
 them. " Dependency,'* said Sir Samuel Walker, C, " whether 
 whole or partial, is a question of fact ; but I think that in 
 the case of husband and wife the facts in proof may be 
 such that the County Court judge is bound in point of 
 law, to find total dependency." 
 
 Coulthard v. Consett Iron Co. (c) was also a husband couithardB. 
 
 Coneett Iron Co. 
 
 and wife case, and was distinguished from Eees v. Pen- 
 rikyber Navigation Collieries (cZ) on that ground, "that 
 there was a direct obligation on the part of the workman 
 to support the applicant." The County Court judge on ■ 
 the evidence held that the wife was dependent, and the 
 Court of Appeal held that there was evidence to support 
 his decision. " The question," says Eomer, L. J., (e) " is 
 
 (a) 6 F. 992. 
 
 (6) [1906] 2 I. E. 135. 
 
 (c) [1905] 2 K. B. 869. 
 
 (d) [1903] 1 K. B. 259. Cp. Pryoe v. Penrikyber Navigation Collieries, 
 [1902] 1 K. B. 221, where CoUins, M.B., says at 223 : "The wife has legally 
 no other source of income during the lifetime of the deceased other than his 
 earnings." 
 
 (e) [1905] 2 K. B. 876. 
 
466 Workmen's Compensation Act, 1906 
 
 Chap. VIII. whether the applicant was dependent on her husband's 
 earnings at the time of his death ; that question appeals 
 to me to be really one of fact " ; and Mathew, L. J., {a) 
 reiterates : " The question is one of fact." 
 
 o^i"ifcoarco. ^"^ Williams v. Ocean Coal Co., Ltd.,(&) yet again a 
 
 husband and wife case, the appeal was on the ground that 
 in directing himself " in ignoring the legal presumption 
 of dependency of the wife, the County Court judge had 
 misdirected himself." The Court of Appeal held that this 
 was so. In giving judgment Cozens-Hardy, M.R., com- 
 mitted himself to the proposition : " Dependency . . . must 
 always be a mixed question of law and of fact." " I desire," 
 he added, "to adopt the language of Holmes, L.J., in 
 Queen v. Clarke, (e) where he said : »' We have only juris- 
 diction to hear an appeal on a question of law, and it may 
 be thought whether a wife is dependent wholly or in part 
 on her husband's earnings is more a matter of fact than 
 law. This sometimes may be so, but it is not in the present 
 case. We have here certain admitted facts, the legal 
 consequence of which is that the claimants are either 
 wholly dependent or are not ; and the proper conclusion to 
 be drawn from them is a pure question of law.' " Subsequently 
 in Kelly v. Hopkins, (d) where the wife was detained in an 
 asylum as a dangerous lunatic at the time of her husband's 
 death, and there was no evidence of the possible or probable 
 duration of her insanity, the Irish Court of Appeal held that 
 the presumption of the wife's dependency was not displaced." 
 
 Authorities con- Thus staud the authorities. Can they be reconciled? 
 
 Bidered. .„,..., 
 
 For some of the text writers nnd an incongruity m them. 
 Main Colliery Co. v. Davies (e) is the case of a father 
 
 (a) L. c. at 878. (6) [1907] 2 K. B. i22. 
 
 (c) [1906] 2 I. B. 135 at 163. (d) [1908] 2 I. B. 84. 
 
 (e) [1900] A. C. 358. 
 
Dependants 467 
 
 earning wages being found in part dependent on the Chap. VIII. 
 earnings of his child. This holding was upheld as con- 
 sistent with the facts proved. The other cases are all cases 
 of husband and wife. They raise the point whether the 
 existence of that relationship does not imply a dependency. 
 That it does at common law is plain. The first resolu- 
 tion of the iudges in the Exchequer Chamber in Manby w. Eesoiuuon in 
 
 „ . . Manby v. Scott. 
 
 Scott (a) is "that husbands are bound to supply their 
 wives with necessaries " ; and proof that a woman is a wife 
 would raise, wholly apart from the Workmen's Compensation 
 Act, the implication that she is entitled to support from her 
 husband, that she is dependent. This presumption would con- 
 tinue till rebutted. In showing she is wife she has established 
 her prima facie right to a provision from her husband, as 
 involved in her status as wife, and without any other proof. 
 This right may be displaced ; as Oozens-Hardy, M.E., (6) says : ^ e° towimams 
 "It is not a presumption that cannot be rebutted, but there "■ o^^c^'C" 
 are some circumstances which certainly are not sufficient to 
 negative or rebut that presumption. The presumption is 
 not rebutted by the mere fact of desertion. It is not 
 rebutted by proof that de facto not one penny was being 
 contributed by the husband to the wife's support at the time 
 of his death. It is not rebutted by evidence that the wife 
 was in fact being kept alive and maintained by her relations 
 as a matter of charity or kindness. It is not rebutted 
 merely by evidence that the wife is not being supported by 
 her husband, or is maintaining herself by going to domestic 
 service, earning small sums of money as a charwoman or 
 otherwise. It is not rebutted by proof that she was in 
 the workhouse at the date of his death. The presumption 
 can only be rebutted by there being reasonable evidence 
 justifying a Court in coming to the conclusion that this 
 
 (a) 2 Sm. L. 0. (11 ed.) 446, 1 Sid. 109. 
 
 (6) Williams v. Ocean Coal Co., Ltd., [1907] 2 K. B. at 427. 
 
468 Workmen's Compensation Act, 1906 
 
 Chap. VIII. presumption, like any other presumption, is in fact rebutted." 
 In Turners, Ltd. v. Gillies or Whitefield, (a) the presump- 
 tion was held to be rebutted. In Coulthard's case Q>) the 
 Court of Appeal confined themselres to affirming the 
 finding of the County Court judge, that on the facts, and 
 without mentioning the presumption arising from the status 
 of wife, the presumption was established. 
 
 All the instances adduced by Cozens-Hardy, M.E., are 
 merely illustrations of the wife's position at common law 
 till the death of the husband. Thpn comes the Workmen's 
 Compensation Act, and confers rights on dependants from 
 the moment of the death of the workman. Proof that the 
 applicant is a wife connotes that she is a dependant and 
 entitled to the benefits of the Act as such. 
 
 Child claiming as But whcQ in place of a wife a child claims as dependant 
 
 dependant or 
 
 father claiming, there is a difference. A child may or may not be a 
 dependant. What the particular case may show is matter 
 for evidence. So again with a father claiming as a depen- 
 dant of a child; prima facie there is no dependence. 
 Whether there is or not is matter of evidence. Yet 
 wherever the question of evidence arises in a certain sense 
 a question of law is involved, according to the old dis- 
 tinction what can he matter of evidence is for the judge, 
 what is evidence is for the jury to determine on. 
 
 What was Now thesc, as it were, preliminary questions are not 
 
 decided in Main , i. j l 
 
 ^oi»e^co. t). involved at all in the decision of Main Colliery Co. v. 
 Da vies. There evidence was given showing a contribution 
 to the family fund of so small an amount that the employers 
 claimed, as matter of law, a declaration that mere con- 
 tribution by a child to a common fund could not make 
 the father a dependant. The House of Lords answered 
 that there was no standard possible in these cases. Each 
 
 (a) 6 F. 822. (6) [1905] 2 K. B. 869. 
 
Dependants 469 
 
 case must be decided on its own facts. The House of Lords Chap. VIII. 
 certainly did not intimate that in the case of a wife any 
 other presumption than the legal one was to be drawn ; 
 any more than in case of a father, it dispensed with proof, 
 if disputed, of paternity, a mixed question of law and fact ; 
 but these relations being proved or admitted, it required 
 proof of various sequent positions and that these were 
 entirely matter of fact. 
 
 Any dispute as to who is a dependant is to be settled by 
 arbitration ; or after a payment into Court is to be settled 
 by the County Court, (a) It is not necessary for a dependant 
 to take out administration to the estate of the decease, (h) 
 
 The character of the dependency of an illegitimate Dependency of 
 
 ^ •> o illegitimate 
 
 child was discussed in a Scotch case, Gourlay v. Murray, (e) ""W- 
 The deceased man had had the Scotch analogue to a 
 bastardy order — a decree of aliment made against him, and 
 did not friendly regard his illegitimate daughter. The 
 sheriff substitute found that the sum available, on his death 
 caused by injury in his employment, under the Act was 
 £150 ; that of this sum £5 10s. was due to his father for 
 funeral expenses; and that the capitalized value of the 
 decree for aliment was £78. He accordingly assessed the 
 reasonable sum proportionate to the injury the illegitimate 
 daughter had received at £144 10s. On appeal the First 
 Division of the Court of Session disagreed with the method 
 of the sheriff in arriving at this amount, and sent the case 
 back to him. Lord M'Laren's reasoning puts the view 
 of the Court most clearly. " It is evident that the deceased 
 was not a willing contributor to the support of his illegiti- 
 mate child because he allowed a decree of afSliation and 
 
 (a) First Schedule (8). Ante, 330. 
 (6) Olatworthy v. Green, 18 T. L. E. 641. 
 
 (c) 45 So. L. B. 577. As to illegitimate child born after death of the 
 father, Schofield v. OrreU Colliery Co., Times newspaper, 30th Nov., 1908. 
 
470 Workmen's Compensation Act, 1906 
 
 Chap. VIII. aliment to go against him, and no facts are stated which 
 warrant the inference tliat the deceased would have con- 
 tributed anything in excess of what he could be compelled 
 by law to pay. If there are grounds for holding that the 
 deceased voluntarily recognized an obligation to contribute 
 to a larger extent than he was legally bound to, he [the 
 sheriff] was right in taking such evidence into account. 
 But I think that in awarding the whole available fund, 
 less funeral expenses, the sheriff substitute has proceeded 
 on a wrong principle, because the Act of Parliament does 
 not prescribe that the maximum sum available for com- 
 pensation should be awarded in every case, but only that 
 reasonable compensation within that limit should be paid." (a) 
 
 Workman The Qucstion of dependence is, as we have seen, mainly 
 
 Bpending wages 
 
 on himBeif. one of fact, yet legal problems have not failed to present 
 themselves to be solved, (h) 
 
 The case has been put of a man earning wages which he 
 spends on himself, while he maintains his dependants from 
 other sources which terminate with his life. The whims of 
 any individual man would seem to have very little bearing 
 on the provisions of the Act. The man is bound to main- 
 tain his dependants — out of his earnings ultimately ; else- 
 where, if he can, and chooses to do so. If through an 
 accident the other resources fail, the dependants are no less 
 dependent on his earnings than if he had had no other 
 resources. The fallacy lies in attributing to the wage- 
 earning class modes of living appropriate to other classes. 
 pwentThi"^ In Simmons v. White Brothers (c) a boy of fourteen who 
 
 wages. 
 
 (a) Cooper v. Fife Coal Co., Ltd., [1907] S. C. 564, is now of greatly 
 diminished importance with reference to the definition of dependant by 
 virtue of the definition in the Act. It was the claim in respect of the 
 death of a maternal grandfather. 
 
 (6) Main Colliery Co., Ltd. v. Davies, [1900] A. C. 358. Ante, 463. 
 
 (c) [1899] 1 Q. B. 1005. See Griffiths v. Davis & Son, Ltd., Times 
 newspaper, 13th November, 1899. 
 
Dependants 471 
 
 had been at work about five weeks, earning 17s. a week, Chap. VIII. 
 
 had up to the time of the accident causing his death brought 
 
 home his wages to his parents, who retained the surplus 
 
 beyond the cost of his keep for themselves. The County Court 
 
 judge held that the parents were " in part dependent " on 
 
 the boy ; and the Court of Appeal could not say that there 
 
 was no evidence on which the County Court judge could 
 
 find that the parties were in part dependent on the deceased. 
 
 There must be dependency to some extent for ordinary 
 necessaries having regard to the class and position in 
 life of the parties. The principle is expressed by Lord 
 Halsbury in Main Colliery Company v. Davies (a) to the 
 following effect : the father of the family is by law bound 
 to support his family, and is punishable if he does not 
 He in his turn " obtains from the wages of those who are 
 being maintained by him a partial contribution to the 
 general family fund " ; accordingly " he must be relying or 
 dependent— call it what you please — for the means by 
 which he discharges his legal obligations upon the funds 
 supplied to him, or partly supplied to him, by the children 
 who earn those funds." (b) 
 
 In Howells v. Vivian & Sons (c) the fact that the person capacity to 
 
 . support life does 
 
 alleged to be a dependant can support lite without the not necessoriiy 
 assistance of the deceased," was held not of itself to negative ^epeudency. 
 his status as a dependant. 
 
 In French v. Underwood (d) the County Court judge in 
 estimating whether a father was dependent on his son's 
 earnings made the mistake of taking "into consideration 
 his own knowledge of the district in which the family lived 
 and of what such a family would require for their main- 
 tenance " : he set up a standard. This the House of Lords 
 
 la) [1900] A. 0. 358. (&) L. c. at 361. 
 
 (c) 18 T. L. R. 36. (d) 19 T. L. E. 416. 
 
472 Workmen's Compensation Act, 1906 
 
 Chap. VIII. tad forbidden to be done. The proper inquiry was whether 
 " the father was partially dependent upon the earnings of 
 the son for contributions for the maintenance of the family." 
 
 rountarnB& Senior v. Fountains & Burnley, Ltd., (a) throws light 
 
 Burnley. q^ ^j^jg (JecisioB. There it was determined that the widow 
 
 and children of a deceased workman are not less dependent 
 upon his earnings because from money coming to him from 
 other channels he is enabled to live in an improved con- 
 dition from what otherwise he would.(6) If, however, the wife 
 — and of course this is a matter for proof by the respondents, 
 the prima facie inferences being the other way — is in the 
 receipt of a private income or earnings of her own, the case 
 becomes one of partial dependency, ov may be of no 
 dependency at all. (c) 
 
 Part dependants It mav be notod that in the event of the workman 
 
 may have the •* 
 
 "rapSion leaving only dependants in part dependent upon his 
 divrfed amongBt earnings, the sum payable to these is not necessarily 
 lessened by reason of their having other means of support. 
 If the arbitrator shall consider the maximum allowance in 
 the case of dependants wholly dependent to be a reasonable 
 one and proportionate to the injury sustained by the 
 dependants (by their loss of pecuniary resources), he may 
 award that sum irrespective of the fact that they have some 
 other means, (d) 
 
 The Scotch Courts have held that a claim under the Act 
 of 1897 by a dependant wholly dependent defeats the claim of 
 
 (a) [1907] 2 K. B. 563 ; 23 T. L. E. 634. 
 
 (6) KeUy v. Arrol & Co., Ltd., 7 F. 906, where a father earning wages, yet 
 actually receiving an allowance from his son, was held not a dependant since 
 he earned substantial wages on his own account. In Moyes v. Wm Dixon 
 Ltd., 7 F. 386, a daughter who could earn substantial wages, but indeed 
 kept house for a father who was killed, was held a dependant. 
 
 (c) Leggett V. Burke, 4 F. 693. 
 
 -.^n^'^^ T^^^^ Schedule (1) (a) (ii), ante, 326. Cp, Bortick v. Head, 34 W E 
 102. Ante, 239. ' ' 
 
Descendants 473 
 
 those in part dependent on a workman at the time of his Chap. VIII. 
 death. The reasoning by which this result is brought 
 about is as follows : " This section, (a) when read as a whole, 
 defines the total liability, and presents three alternatiTe 
 cases which are mutually exclusive. If there are persons 
 wholly dependent, then the employer, has got to pay three 
 years' earnings, not exceeding £300. The next case con- 
 templated is that of those partially dependent, but their 
 right is conditioned by the opening words, ' if the workman 
 does not leave any such (i.e. wholly dependent) dependants.' 
 If he has left such wholly dependent dependants, then the 
 Act does nothing for the partially dependent. There is no 
 provision authorizing the arbitrator to carve a provision for 
 them out of what' is devoted to the wholly dependent, and 
 no provision for any further liability on the part of the 
 employer than what is set forth in the three cases put in 
 the sub-section." (6) 
 
 This is one of those decisions prvmss im/presmmis which criticism. 
 one comes across now and again in the Scotch Reports. 
 Even as dialectic it is unsound. The proposition that, if 
 a man leave "any dependants wholly dependent " on him, 
 the amount of compensation to his dependants shall be 
 a fixed minimum sum is certainly not identical with the 
 ; proposition that, if a man leaves any dependants wholly 
 dependant on him, the amount of compensation to his 
 dependants shall be divided exclusively amongst those 
 wholly dependant on him; more especially is this not so 
 when the term " dependants " is defined by the statute 
 to include those partially dependant. The distinction 
 between the two classes (i) and (ii) appears to be this : 
 where any wholly dependent member of a family exists, 
 
 (a) First Schedule, (1) (a) (i) (ii). 
 
 (6) Per the Lord President, Pagan v. Murdoch, 1 P. 1179. 
 B.E.L. 2 I 
 
474 Workmen's Compensation Act, 1906 
 
 Chap. VIII. the minimum compensation is to be £150. Where 
 there is no wholly dependent member of the family, 
 the arbitrator has a discretion to award a less sum than 
 £150. 
 
 Amended Act of '^^^ inequity of the decision has been obviated by a 
 
 "°^' provision that "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." (a) 
 
 Dependant ^^^ *^s* 0^ ^^^* Constitutes a "dependant wholly 
 
 wholly depen- (dependent " was considered in Pryce v. Penrikyber Naviga- 
 tion Collieries. (6) The widow of a working man killed 
 in circumstances entitling her to compensation under the 
 Act, received £100 as his administratrix. It was contended 
 that the receipt of this sum disentitled her to claim 
 compensation as "wholly dependent." "I understand," 
 said Collins, M.E.,(c) "by the words 'wholly dependent,' 
 that there was no other source of income during the 
 lifetime of the deceased other than his earnings on which 
 the applicant was dependent. It is said that the inquiry 
 should be whether after the death of the husband, and 
 taking all sources of income into account, the position of 
 the widow could be properly described as one of dependence 
 on the earnings of her deceased husband. That is asking 
 the Court to say that an applicant to be wholly dependent 
 on a workman's earnings must be a person who is reduced 
 to destitution by his death. The Act does not say this, 
 and if it had said so very serious complications would 
 have been introduced in arriving at the amount of 
 
 (a) First Schedule (8). Post, 620. 
 (5) [1902] 1 K. B. 221. 
 (c) L, c. at 223. 
 
Dependants 475 
 
 compensation. . . . The only time at wMch to draw the Chap. VIII. 
 line is the time of the death of the workman, and sources 
 of income which may arise after that date cannot be taken 
 into consideration," 
 
 On the authority of this case the County Court judge 
 in Wainwright v. Crichton (a) held that where, the 
 father being injured, an agreement was made between 
 him and his son for the son to maintain the father, evidence 
 was not admissible of the father's earning capacity to show 
 whether the dependence was entire or partial, but he was 
 overruled by the Court of Appeal, who were of opinion that 
 evidence on the point should be received. 
 
 The Irish Court of Appeal have held that, where the peathofsoie 
 
 '^'- ' dependant. 
 
 sole dependant of a deceased workman died after having 
 served notice of the accident, but without having made 
 any claim, the right to compensation ceased, and did not 
 pass to his representatives. (6) 
 
 This decision was relied on in Darlington v. Eoscoe, (c) g'fjj'l'™ "• 
 to preclude recovery by the representatives of the widow 
 of a workman who had died from injuries received in 
 circumstances bringing the case under the Act. The 
 widow made a claim for compensation, but before the case 
 came on for hearing, died. The daughter then, having 
 taken out letters of administration, took proceedings in the 
 County Court. But the Court of Appeal held it sufficient 
 to distinguish the Irish case on the ground that there no 
 claim had been made for compensation. If a claim were 
 made as in the present case, the representative is entitled. 
 Such a distinction appears wholly without substance. A 
 
 (a) 117 Law Times newspaper, 2. 
 
 (6) In re O'Donovan and Cameron, Swan & Co., [1901] 2 I. E. 633. 
 
 (c) [1907] 1 K. B. 219. 
 
476 Workmen's Compensation Act, 1906 
 
 Chap. VIII. time is given for making a claim. If the claim is made 
 within the time either by the dependant or the repre- 
 sentative, there appears no ground in the Act for making 
 a distinction. If the claim is made outside the time the 
 dependant himself is precluded. Even before the claim 
 is made the dependant may not improbably have antici- 
 pated the payment. How then in reason can it be that 
 the legal representative of the dependant is cut down in 
 the time during which he may assert a vested right of the 
 dependant not arising out of a tort, when no limitation 
 can in any way be drawn from the Act itself ? {a) 
 
 A result of the alteration in the definition of dependants 
 in the Act of 1906 is that now in Scotland, the mother of a 
 dead workman is entitled to be ranked as a dependant 
 though the father is living. 
 
 Under the old Act grandchildren whose father was 
 dead, and who were dependent on their paternal grand- 
 father, were already so entitled. (J) 
 
 status of BritiBh The right of a dependant is not conditional on his 
 
 subject not *-* ■*■ 
 
 having the status of a British subject ; as in William 
 Baird and Co. Ltd., v. Savage, (e) where a claim was made 
 by the wife of a workman resident in Poland as dependant 
 on her husband, who while working in Scotland had been 
 used to send her £1 a week, which she supplemented by 
 her independent earnings. The Court of Session amended 
 the sheriffs decision that she was wholly dependent into 
 a finding that she was partially dependent on his earn- 
 ings, {d) 
 
 {a) Op. Peebles v. Oswaldtwistle Urban District CounoU, [1896] 2 Q. B. 
 159. 
 
 (6) Hanlin «. Melrose, 1 P. 1012. 
 
 (c) 8 F. 438. 
 
 (d) Cp. Davidsson v. Hill, [1901] 2 K. B. 606. 
 
 essential. 
 
Employer 4T7 
 
 rn T, Chap. VIII. 
 The Employee. l 
 
 The Act of 1897 proceeded from an enumeration of certain ^ow principle. 
 employments by " undertakers " to a distribution of them 
 into a number of sub-classes which, formed the backbone of 
 the Act, and by far its obscurest portion. " Employer " 
 was there stated to include " any body of persons, corporate 
 or incorporate, and the legal personal representative of a 
 deceased employer." (a) There it stopped. The new Act 
 continues, " 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 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." 
 
 We have before noticed that where a " definition " Definition. 
 clause provides that the word it professes to define shall, as 
 in this case, " include " the matters defined, it is to be used 
 for " interpreting words which are ambiguous or equivocal, 
 and not so as to disturb the meaning of such as are plain " ; (5) 
 it is for enlarging, not for restricting, for sweeping in things 
 not ordinarily or obviously within the meaning of the word 
 in its usual connotation. Thus employer means a person 
 who proposes a contract of service and whose offer is 
 accepted. The definition adds whether one or many, 
 corporate or unincorporate, and the legal representative of a 
 deceased employer. 
 
 (a) Ante, 319. If these words are introduced with reference to the rule in 
 Gillette. Pairbank, 3 T.L. R. 618, they are probably unnecessary; for a claim 
 under the Act does not arise out of a tort, but is a statutory subvention, 
 the right to which survives, though representatives are not named : Peebles 
 V. Oswaldtwistle Urban District Council, [1896] 2 Q. B. 159. The Act speaks 
 of " compensation, not damages." 
 
 (6) K. V. Pearce, per Lush, J., 5 Q. B. D. at 389. 
 
478 Workmen's Gompensation Act, 1906 
 
 Chap. VIII. The real substance of the definition of employer is to 
 be collected from that of workman. An employer is one 
 with whom a " workman," within the definition in the Act, 
 has entered into or works under a contract of service or 
 apprenticeship. Workman and employer are, so far as this 
 Act goes, strictly correlative terms, and what is said of one 
 holds good of the other, making allowance for the altera- 
 tion of the standpoint. If difficulties arise the considerar 
 tions ruling at common law will provide a line of guidance. 
 In searching for an employer we are treading familiar 
 ground, and the tests and suggestions before set out will 
 afford all the aid cases or general considerations can. (a) 
 The collocations of fact may be infinite, the principles 
 fairly plain. The only disturbing element is the provision 
 as to sub-contracting, which will presently be dealt 
 with, (b) 
 
 All the rest is quite plain, whether under the Act of 1906 
 or by the common law. There may be more doubt as to the 
 provision about the workman "temporarily lent." Lord 
 Chief Justice Pratt had in Eex v. Ivinghoe (c) very positively 
 laid down, "If I lend my servant to a neighbour for a 
 week or any longer time, and he goes accordingly, and 
 does such work as my neighbour sets him about, yet 
 all this while he is in my service and may reasonably 
 be said to be doing my business," — ^though the law has long 
 been settled otherwise, (^) if the control is with the 
 borrower, (e) 
 
 (a) Ante, 138. 
 (6) Post, 481. 
 
 (c) (1718) 1 Stra. 90 ; Campbell, Lives of the Chief Justices, vol. ii. 
 216. 
 
 (d) Donovan v. Laing, Wharton & Down Syndicate, [1893] 1 Q. B, 
 629. 
 
 (e) Ante, 139. 
 
Employer 479 
 
 In such cases, under the Workmen's Compensation Act, Chap. VIII . 
 1906, the presumption is now conclusive in accordance with 
 
 /-IT, '^''^ presumption 
 
 Pratt, O.J. s Tiew : and the contract of the workman is not '^'^^^ ^'<^^ ^<^ , 
 
 ' where a servant 
 
 altered by the change of his work, unless with his own con- '^ '*""• 
 sent the liability of his original employer is not taken away. 
 
 As the Crown, except as regards the military and naval cro^" work. 
 services, is within the Act, (a) the head of any department by, 
 in or under which the workman alleged to be injured was 
 employed, or if the head is a Board or Commission, the 
 Board or Commissioners shall be made a party under his or 
 their official title as representing the Crown ; and service 
 of process is to be on the permanent secretary of the 
 department. (6) 
 
 The provisions as to employers under sec. 8, by which 
 the Act is applied to industrial diseases, have been con- 
 sidered elsewhere, (c) 
 
 The cases where the employer or the workman is a case of contract 
 
 . .,.„. in a foreign 
 
 foreigner, or where the contract is made m a foreign country, country. 
 are to be noted. A contract made in a foreign country for 
 work to be done in England is prima, facie to be construed 
 by the law of the country where it is made {d) ; but this is 
 subject to the consideration whether there is any indica- 
 tion in the contract itself of what law is to prevail ; if 
 there is, the contract has to be interpreted by that law. (e) 
 Thus, if Italian workmen are brought from Italy on a con- 
 tract made in Italy, to work in England and with the rights 
 only of workmen under the Italian law (whatever those may 
 be), apart from the Act the contract would be good. But 
 assume that having entered into such a contract after the 
 
 (a) S. 9 (1). 
 
 (6) W. G. R. 1907, r. 79 (1). Ibid. (2). 
 
 (c) Ante, 355. 
 
 (d) See Lord Stowell ia Dalrymple v. Dalrymple, 2 Hagg. Cons. 61. 
 
 (fi) In re Missouri SteamsHp Co., 42 Oh. D. per Lord Halsbury, C, 335. 
 
480 Workmen^ s Comjaensation Act, 1906 
 
 Chap. VIII. ■^<'*> t^6 Italian workman is injured, can he recover under 
 
 the Act in the teeth of his contract ? Most probably he 
 
 would have this right ; since sec. 3 (1), the contracting out 
 section, provides "that, save as aforesaid, this Act shall 
 apply notwithstanding any contract to the contrary." The 
 work to be done is work for the doing which protection is 
 given as a matter of state policy ; and that policy should not 
 admit of defeat by the method of making the contract out 
 of the jurisdiction, even with the subjects of another nation 
 who do not wish for the protection, and by the incidental 
 exclusion of the native labourer. Were any other view 
 taken in addition to the legal difficulties to be surmounted, 
 there would be a " Chinese slavery " question amongst us of 
 altogether unmanageable proportions. It is clear that an 
 
 Case of contract alien while in the jurisdiction is entitled to the benefit of 
 
 with alien itiini*ik' 
 
 workman. the Act ; and no one entitled to the benefit of the Act is 
 entitled to contract out of the Act, save in the way 
 provided. 
 
 Foreign employer The casc of a foreisTU employer living outside the 
 
 with workman o r j o 
 
 in the juriadic- jurisdiction employing workmen within it, does not differ. 
 Those workmen are entitled to the benefits of the Act and, 
 save as in the Act indicated, cannot disentitle themselves. 
 
 British workmen But if British Workmen work for a foreign employer 
 employer in in the foreign country, the principles already indicated 
 
 foreign conntry. ° J' r r J 
 
 apply : the law of the country governs, if not, the law of 
 the contract ; and, save possibly in an action on the contract, 
 the workman cannot get any benefit from the Act. 
 
 Cases put. Take the case of a British contractor engaging men 
 
 in England to work in Egypt. If the engagement is under 
 a written contract and the workman is injured in circum- 
 stances to which had the work been in England the Act 
 would have applied, the workman may sue at common law 
 on the contract, or probably in the appropriate Court in 
 
Employer 481 
 
 Egypt. But it does not appear that lie can adopt the chap. VIII. 
 procedure of the Act, for the simple reason that neither the 
 Second Schedule of the Act (11) nor the rules made thereunder 
 apply, nor can be moulded to apply, (a) If the accident is in 
 a British Colony, then p~lvm facie the law of the colony 
 applies. Generally it may be said that the Act does not 
 apply outside the jurisdiction of the County Courts, or 
 of any jurisdiction by the Act identified with the County 
 Courts. (6) 
 
 But a British pater familias with his servants travelling 
 in a foreign country, where one of his servants is injured 
 would be liable to proceedings by the servant on his return ; 
 and in analogous circumstances a British workman could 
 recover. Difficulty might arise through the provisions of 
 Second Schedule (9) (c), and indeed would be necessarily 
 fatal to some of the cases we have just considered. 
 
 The considerations here noticed do not apply in the 
 case of seamen, whose position is specially provided for 
 by the Act. {d) 
 
 Sub-contracting. 
 Section 4 (1) introduces ns to two new definitions which principal 
 
 . . . . ,, contractor, 
 
 do not occur in the definition section— the "principal 
 and the "contractor." This is rendered necessary by the 
 general scheme of the section, which aims at preventing 
 the dividing up the responsibility for a large work into 
 fractions, whereby the security of the workman for his com- 
 pensation may be greatly curtailed. («) 
 
 A " principal," according to the section, is one who in the 
 course of, or for the purposes of his trade or business, 
 
 (a) W. C. B. 1907, rr. 73-75. (6) S. 13. " County Court." Ante, 322. 
 
 (c) Ante, 335. 
 
 (d) Ante, 308. Post, 450 and, aa to Detention of SHps, 697. 
 
 (e) See Mulrooney v. Todd and the Lord Mayor, etc., of Bradford, 25 
 T. L. R. 103. 
 
482 Workmen's Compensation Act, 1906 
 
 Chap. VIII. contracts with any other person for the execution by or under 
 such other person of the whole or any part of the work that 
 such contracting person has undertaken. A "contractor" 
 is the person with whom any such contract is made. 
 
 Johnson «. The commou law prcTiously to the decision of the 
 
 Lindsay. j. ./ 
 
 House of Lords in Johnson v. Lindsay (a) had been stated by 
 Lord President Inglis, in Woodhead v. Gartness Mineral 
 Co., (b) as follows : " The whole persons engaged in a mine 
 form one organization of labour for one common end (how- 
 ever different their functions may be), and are subject to 
 one general control exercised by the mine owner or those to 
 whom his authority is delegated. This community of labour 
 and of subjection to control arises from the very nature of 
 the work, and from the necessity of providing against 
 danger, and ensuring the maintenance of discipline. But 
 it is systematized and made even more directly binding on 
 all by the statute (c) and the special rules enacted under 
 its authority. The persons employed in a niine, superior 
 and inferior, contractor and workmen, of whatever class 
 or whatever their functions may be, are by those rules 
 erected, so to speak, into one community, who have their 
 relative duties assigned to them, and who owe each to his 
 neighbour many duties which it would be impossible to 
 enumerate. To such a community as this, and to its 
 individual members, the mine owner is under certain well- 
 defined obligations; but to hold that his obligations and 
 liabilities to the individual workmen depend on whether 
 they are technically his servants or employed by a cfon- 
 tractor on piecework in some limited portion of the mine, 
 while it would be inconsistent with legal principle, would 
 also, I think, introduce great confusion where it is desirable 
 
 (a) [1891] A. 0. 371. 
 
 (b) i E. 469 at 479. 
 
 (c) The Coal Mines Regulation Act, 1872 (35 & 36 Vict. c. 76), s. 52. 
 
Suh-Oontracting 483 
 
 that everything should be as clear as possible, and where the Chap. VIII. 
 statute makes the inter-dependence of the whole community 
 and their necessary reliance on one another for safety, the 
 regulating principle of their association and the basis of all 
 the special rules for their guidance." 
 
 The instance of a mine in the management of which 
 there are, in addition to the general scheme of working, 
 minute statutory rules that must be observed is given 
 merely as a type. The remarks of the Lord President are 
 •general and the principle of the law in this matter may be 
 readily referred therefrom. 
 
 In Johnson v. Lindsay (a) this further proposition was Johnson «. 
 
 Lindsiiy. 
 
 enforced — that the defence of common employment can only 
 be set up by the master of the injuring and injured man ; 
 and that failing the existence of that relationship, the 
 defence does not apply. 
 
 The common law immunity of the head of the scheme of 
 common work was deeply trenched upon by sec. 4 of the 
 Workmen's Compensation Act, 1897, the scope of which 
 was indicated by Collins, L.J., in Wrigley v. Bagley & ^",f ^^^^j ^ 
 Wright : (6) " The scope of that section is clear enough. 
 It contemplates the case of persons who being undertakers, 
 in respect of a particular business, substitute for themselves 
 a contractor to do some part of that business, and provides 
 that the workmen of such contractor shall have the same 
 rights against such persons as they would have if they were 
 employed by them. The reason of such a provision 
 obviously is, that if a person substitutes another for himself 
 to do that which is his own business, he ought not to escape 
 the liability which would have been imposed upon him if 
 he had done it himself towards the workmen employed in 
 that business." 
 
 (a) [1891] A. C. 371. (6) [1901] 1 K. B. 780 at 783, 
 
484 Workmen's Compensation Act, 1906 
 
 Chap. VIII. By sec. 4 of the Act of 1897 the "undertaker," as he is 
 there called, became liable to the workman of any sub- 
 contractor employed in any portion of the entire work 
 for any accident " arising out of and in the course of the 
 employment," whereby the workman is injured. He also 
 became liable to the sub-contractor's workmen in respect 
 of personal negligence or wilful act of the sub-contractor 
 independently of the Act. That is, he was liable for — 
 
 (1) Injuries sustained by the workmen while working 
 
 with the sub-contractor, arising out of the negli- 
 gence or default of the sub-contractor ; 
 
 (2) Injuries occasioned by defective machinery or a 
 
 defective system of work ; 
 
 (3) Injuries occasioned by the neglect of statutory 
 
 precautions. 
 
 Thus the head contractor's common law liabilities to a 
 workman injured while working with a sub-contractor were 
 increased; inasmuch as independently of the Act the sub- 
 contractor was regarded either as a foreman or a fellow 
 workman, (a) in neither of which capacities would the head 
 contractor be liable for his acts causing injury to a fellow 
 servant ; while by the Act he was made liable in either case 
 as if the sub-contractor's negligence or default were the 
 head contractor's own personal negligence or default. By 
 sec. 4 of the Workmen's Compensation Act, 1906, the 
 " principal's " liability at common law is no longer regarded, 
 and is instead confined to the "compensation under this 
 Act which he [the principal] would have been liable to pay if 
 that workman [i.e. any workman employed in the execution 
 of the work] had been immediately employed by him." 
 
 {a) Eourke v. White Moss Colliery Co., 2 0. P. D. 205 ; Wiggettu. Fox 
 11 Ex. 832, This, of course, was before Johnson v. Lindsay, [1891] A. 6. 37l'. 
 
Suh-Gontraoting 485 
 
 The section only applies to contracts — Chap. VIII. 
 
 (i) in the course of or for the purposes of the principal's 
 trade or business ; 
 
 (ii) for the execution by or under the contractor of the 
 whole or any part of any work undertaken by the 
 principal ; 
 
 (iii) where the accident occurred 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. 
 
 In these requisitions there are several points which 
 require to be cleared up. 
 
 The primary intention seems to be to redress what was 
 esteemed the harshness of the common law. We may 
 therefore take it that the typical case to which the section 
 is applicable is some large work, e.g. the building of the 
 Law Courts, where while there was one principal, the head 
 contractor, there were many subordinate contracts to his, 
 and these the subject of subdivision. 
 
 The section provides that in a case like this "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 work- 
 man had been immediately employed by him." Instead of 
 not being liable to any he is made liable to all. But the 
 accident must occur in "carrying out a contract, in the 
 course of OE for the purposes of the principal's trade or 
 business." The words of the old Act were : " This section 
 shall not apply to any contract with any person for the 
 execution by or under such contractor of any work which is 
 merely ancillary or incident to and is no part of, or process 
 in, the trade or business carried on by such undertakers 
 
486 WorJcmen's Compensation Act, 1906 
 
 Chap. VIII. respectively." (a) The interpretation of these words was that 
 the section was not to apply where the work out of which 
 the accident arose could not rightly be described as work 
 undertaken by the contractor (that is, according to the Act 
 of 1906, the principal) in the ordinary course of his trade or 
 business. 
 
 This consideration then is sufficient to render germane 
 the cases decided under the Old Act. 
 
 casea. Hcrron V. Charnley — The Ehea Fibre Co., Ltd., Third 
 
 Parties, (6) is an early decision under the Act. Charnley 
 undertook to do joinery work at the ' mill of the third 
 parties. Applicant while at the work was injured. Applicant 
 claimed against Charnley. Charnley claimed indemnity 
 against the third parties. The County Court judge made 
 an award against the third parties. In the Court of Appeal 
 the objection was urged, and was successful, that " the com- 
 pany was not his [applicant's] employer, and Charnley was 
 not an undertaker within the meaning of the Act." 
 
 This was followed by Pearce v. L. & S.-W. Ey., (e) where 
 the applicant was in the employment of contractors, who 
 were doing work on a station of respondents' under a con- 
 tract, in the course of which the applicant was injured and 
 claimed against the railway company. The County Court 
 judge held that the work the applicant was engaged in was 
 ancillary merely. He was affirmed by the Court of Appeal. 
 " The primary business of a railway company is to carry 
 passengers and goods. The erection of stations does not 
 appear to me (d) to be any part of, or process in, that 
 
 (a) 60 & 61 Vict. 0. 3T, s. i, last clause. 
 
 (6) The Times newspaper, 19th February, 1900, 2 W. C. C. 24. 
 
 (c) [1900] 2 Q. B. 100. 
 
 (d) L. c, Collins, liJ., at 102. The Irish case, Brennan v, Dublin 
 United Tram. Co., [1901] 2 Ir. B. 241, is to the same effect. 
 
Suh-Oontracting 487 
 
 business. I am not aware of any legal obligation upon Chap. VIII. 
 
 railway companies, apart from any special obligations imposed 
 
 by particular Acts, to erect railway stations at intermediate 
 
 places. It is a matter in their discretion." " The work 
 
 upon which the appellant was engaged, namely, the building 
 
 of a station, was not, in my opinion, a part of or process in 
 
 the business which the company carried on." 
 
 This reasoning, which seems cogent, is in direct conflict scotch case in 
 with the Scotch case of Burns v. North British Eailway 
 Co. (a) The First Division of the Court of Session there 
 held that the workman of a firm engaged to erect signals on 
 a new siding was engaged " on a railway on work of which 
 the railway company were undertakers." It is also incon- 
 sistent with Bee v. Ovens, (6) where a firm of manufacturers 
 of chemical manures contracted for all carting in connection 
 with their business. " The Scotch Court held that the manu- 
 facturers were liable to pay compensation to a servant of the 
 contractors who was injured while engaged in carting. 
 
 Greenhill v. Caledonian Ey. Co. (c) was a very, similar 
 case, only the contract for carting was with a railway 
 company. 
 
 In Dundee and Arbroath Ey. Co. v. Carlin (d) the Second English cases 
 
 . _ - .^ followed in 
 
 Division of the Court of Session (Lord Young dissenting) Dundee and 
 
 ^ ° °' Arbroath Rail- 
 
 followed Pearce v. L. & S.-W. Ey. Co., (e) in a case where ^IJy^"- ^• 
 a workman was killed by a train while engaged in the con- 
 struction of a wall to prevent soil coming down a bank, and 
 blocking the access to a signal cabin, under a contract, and 
 held that the work was ancillary to the railway company's 
 business. The Court, while faintly suggesting that Burns v. 
 North British Ey. Oo.(/) was distinguishable, indicated that 
 they preferred the English case. 
 
 (a) 2 F. 629. (6) 2 F. 439. (c) 2 F. 736. 
 
 (d) 8 F. 843. (e) [1900] 2 Q. B. 100. (/) Supra. 
 
488 Workmen's Compensation Act, 1906 
 
 Chap. VIII. The Scotch judges were unanimous in the next case that 
 came before them on this point. A window- cleaner in the 
 employment of a window-cleaning company was sent to clean 
 the windows in a tailors' workshop, which was a factory within 
 the Act. The man was injured, and claimed against the 
 tailors as the undertakers. There was no hesitation in hold- 
 ing that window-cleaning was not a part of, or process in, 
 a tailor's business, (a) 
 
 wrigiey v. In Wrigley v. Bagley & Wright and Whittaker & Sons, (6) 
 
 Whittaker & Sons were engineers who employed the appel- 
 lant's husband in fixing a driving wheel for the steam 
 engine belonging to the cotton spinning factory of Bagley. 
 Appellant's husband was killed. She claimed alternatively 
 against the respondents. The County Court judge held that 
 the work deceased was engaged in was merely ancillary. He 
 was approved by the Court of Appeal. "One case," says 
 Collins, M.E., (c) " which came before this Court, in Pearce v. 
 L. & S.-W. Ky. Co., {d) namely, that of altering a railway 
 station, afforded an excellent illustration of work which was 
 merely ancillary or incidental to, and formed no part of, or 
 process in, the work of a railway company. The priesent is, 
 in my opinion, an equally good illustration of work which is 
 ancillary to, as distinguished from work which forms part 
 of, a business. Putting a new driving wheel into an engine 
 used in a cotton spinning factory cannot, I think, be described 
 as part of or a process in the business of cotton spinning." 
 The decision of the Court of Appeal was affirmed in the 
 House of Lords in favour of the deceased's employer, on the 
 ground that the accident did not occur at the undertaker's 
 factory. There does not seem to have been any appeal 
 against the decision in favour of the cotton spinners holding 
 
 (a) Demster v. Hxmter & Sons, 39 So. L. R. 395. 
 
 (6) [1901] 1 K. B. 780. (c) L. c. at 783. (d) [1900] 2 Q. B. 100. 
 
Sub-Contracting 489 
 
 that the work was, so far as they were concerned, ancillary Chap. VIII. 
 only, (a) 
 
 In Cooper & Co. v. M'G-overn (b) the First Division of bu' scotch view 
 
 ■^ ^ ' re-asserted in 
 
 the Court of Session returned to the line of decision indicated ^?^ll^^''- "• 
 by Bee v. OTens, (e) notwithstanding the adhesion of the 
 Second Division to the line of the English cases in Dundee 
 and Arbroath Ey. Co. v. Carlin. {d) 
 
 The appellants were sausage makers, and their premises 
 a factory within the Act. The injured man was a carter, 
 employed by a railway company to collect goods for forward- 
 ing on their line. At the time of the accident the carter 
 was with his lorry, and had loaded goods from the appellants' 
 premises on his lorry — a distance of 32^ feet. He got 
 jammed between his own lorry and another lofry standing 
 close to it, and was injured. The sheriff substitute found, as 
 a fact, that the goods which the carter was conveying at the 
 time of the accident belonged to the appellants. He also 
 found, as a fact, that "the carrying of their goods from their 
 premises in Glasgow to their premises in Leeds and London 
 is part of the business of the appellants." 
 
 The appellants' goods were collected by the railway 
 company under the terms of a contract of through carriage 
 from Glasgow to Leeds and London to other premises of 
 the appellants. The Court of Session on these materials 
 held that the appellants, the sausage makers, were under- 
 takers of the business of collecting their goods, conveying 
 them and delivering in Leeds and London. This remark • 
 able decision is based on the "finding of fact" that 
 the carrying of goods was "part of the business of the 
 appellants," and this statement, in the judgment of the 
 
 (a) [1902] A. 0. 299, mh nom. Wrigley v. Whittaker & Sons. 
 (6) i P. 249. (e) 2 P. 439. {d) 3 P. 848. 
 
 B.E.L. 2 K 
 
490 Workmen's Compensation Act, 1906 
 
 Chap. VIII. Lord President, was " sufiScient to conclude the question." 
 In England a finding of fact, which there is no evidence to 
 support, is set aside, and on that ground. Further, the 
 Lord President relies on the authority of Powell v. Brown, (a) 
 This case was an employment about a factory. The injured 
 man was in the direct employment of the occupier of the 
 factory, and engaged in the work directly undertaken by 
 the employer when injured. The question of ancillary 
 employment not only did not but could not arise, and the 
 case has absolutely no bearing on the question of whether 
 an employment is " a part of or a process in the trade " 
 carried on by undertakers at a factory. Lord M'Laren 
 dissented in an admirable judgment, expounding the inter- 
 pretation of the section and constituting the sole reason 
 why, outside Scotland, this case should ever be noticed. 
 
 Principle of the. Knight V. Oubitt & Co. (b) brings us back again to 
 
 English caaea. ° i, , , . ,, ■, » 
 
 Knight V. cubitt. commou seuse. The appellants habitually made contracts for 
 the demolition of buildings, in which it was usual for them 
 to insert a "pulling down clause," but their practice was 
 not to do that work themselves, but to make a sub-contract 
 for it. One of the sub-contractor's men being killed at the 
 work, the claim was made against the appellants, who 
 resisted it on the ground that they were not " the 
 persons undertaking " the " demolition," the statute aiming 
 at those who actually execute the work. The Court of 
 Appeal held otherwise. "It was part of the appellants' 
 business to undertake the demolition of buildings, without 
 which they could not carry on the work of re-building ; and 
 it is immaterial, in my opinion, that they found it more 
 convenient in practice to sub-contract for that part of the 
 work which they had contracted to do." " I would point 
 out," continues Collins, M.E., (c) " that the question in this 
 
 (a) [1899] 1 Q. B. 157. (6) [1902] 1 K. B. 31. (c) L. c. at 86. 
 
Sub-Contracting 491 
 
 case arises under sec. 4 of the Act, and under that Chap. VIII 
 section the ' undertakers ' are ex hypothesi persons who have 
 deputed to a sub-contractor the execution of work under- 
 taken by them. The evidence showing, as I have said, that 
 it was the appellants' usual practice to undertake the work 
 of demolition, it seems to me impossible to say that that 
 work was merely ancillary to the trade or business carried 
 on by them." 
 
 Bush V. Hawes (a) is the converse of Knight v. Cubitt, Bush «. Hawes. 
 and the two cases enable the law to be clearly com- 
 prehended. Knight V. Cubitt, as we have seen, was the 
 case of builders building a new house, and before they 
 could proceed with the work, they had to pull down an 
 existing house. The work of demolition was made a 
 regular part of their contracts. Thus it was that the 
 County Court judge was justified in finding the work of 
 demolition to be a " part of or process in " their business. 
 Bush V. Hawes was the case of a builder constructing a 
 building, part of which required an iron roof, which was 
 supplied by other people. The County Court judge 
 having found that the erecting the iron roof was not part of 
 the business of the respondent, the Court of Appeal held 
 reversing him that he was not justified in holding that the 
 erection was other than "merely ancillary or incidental 
 thereto." (6) "This finding," says Stirling, L.J., "is not 
 affected by the view that appears to have been taken by 
 the learned judge that putting up an iron roof would 
 generally form part of such a business as the respondent 
 carried on." 
 
 In reading these cases, to appreciate their full relevancy 
 the word "principal" must be substituted for contractor and 
 « contractor " for sub-contractor. But note must be taken of 
 
 . {a) [1902] 1 K. B. 216. (6) L. c. at 220. 
 
492 -Workmen's Compensation Act, 1906 
 
 Chap. VIII. the different words of tlie section in the Act of 1906 — " in the 
 course of or for the purposes of his [the principal's] trade or 
 business " against the words of the Act of 1897 — " no part of 
 or process in the trade or business carried on." In this 
 connection some further of the old cases may be noticed. 
 
 pereivair. In Percival v. Garner (a) the facts showed that chemical 
 
 Gamer. _ _ -mi 
 
 manufacturers were adding to their own premises. They 
 provided the material, and the building was being erected 
 from the plans of their own architect. The chemical manu- 
 facturers, however, agreed with Percival the appellant for 
 the supply by him of labour for the brickwork, and under 
 this agreement the appellant sent bricklayers and labourers 
 as they were wanted for the work The men so sent were 
 under the supervision of the foreman of the chemical manu- 
 facturers, and the appellant was responsible for no part of 
 the work, but he paid their wages and made his profit from 
 the difference between what he got and what he paid to them. 
 One of the labourers was killed. Proceedings were taken 
 against the appellant, whom the County Court judge found 
 to be an " undertaker." The Court of Appeal reversed him. 
 The chemical manufacturers were the only persons under- 
 taking the construction. " The building was being built on 
 their own land, from the plans of their own architect, and 
 under the supervision and control of their own foreman; 
 they wanted labour for the building, and went to the 
 appellant to supply it, which he did. In my judgment," said 
 Smith, L.J., (&) " it is impossible to hold that the appellant, 
 who merely supplied the labour, was an undertaker withifl 
 the meaning of this Act." (c) 
 
 (a) [1900] 2 Q. B. 406. 
 
 (6) L. c. at 408. 
 
 (c) The distinction is the civil law one between locatio operarum and 
 locako operis. 
 
Suh-Oontracting 493 
 
 Two Sootcli oases must be mentioned here, M'Gregor v. Chap. VIII. 
 Dansken, (a) and Stalker v. Wallace. (6) In the former the M'Sr^g^. 
 owner of a building contracted with another to repair the stt°ke™! 
 building for him. He did not himself engage in the work. ^''"'°^' 
 He was held not to be the undertaker. In the latter a 
 builder engaged in the erection of a building for his own 
 use, and did the work partly by his own workmen, partly 
 under contracts for other persons for particular branches of 
 the work. He was held to be the undertaker for the whole 
 building, and therefore liable to pay compensation. But 
 further, in Mason v. Dean (c) it was held that a contractor 
 for a separate substantial part of a building who contracts 
 with the building owner is an undertaker within the mean- 
 ing of the Act. " I think," says Smith, L. J., (d) " that if any 
 person undertakes a material part of the construction of a 
 building . . . he is an undertaker." " The use or occupation 
 of any given thing may well be subject to the use of the 
 same thing by some one else, provided that the two do not 
 conflict." (e) 
 
 By the aid of the materials afforded in these decisions 
 we may solve several would-be problems as to what is " the 
 principal's trade or business." It seems then that the mere 
 executing of work will not make a "principal," for the 
 element of doing it in the employer's trade or business may 
 be wanting. The contractor is liable in any case. A man 
 undertaking to build a house for himself may be a principal 
 even though a private person and no builder (by business). (/) 
 
 (a) 1 F. 536. 
 
 (6) 2 F. 1162. 
 
 (c) [1900] 1 Q. B. 770. 
 
 {dj L. c. at 774. 
 
 (e) BarteU v. Gray, [1902] 1 K. B. at 229 ; Weavings v. Kirk & Randall, 
 [1904] 1 K. B. 213. 
 
 (/) See Stead v. Moore, 2 W. 0. 0. 96 ; Stalker v. Wallace, 2 F. 1162, 
 
494 Workmen's Compensation Act, 1906 
 
 Chap. VIII. There may also be more than one principal in carrying out 
 an extensiye work, e.g. in constructing a large building, as 
 the Law Courts. 
 
 Some commentators on the Act have discovered, as is the 
 manner of their kind, a particular significance in the work 
 " undertaken " ; and have refined on the speculation whether 
 this word means that the principal is doing the work for himself 
 or for other people. In its natural and ordinary meaning it 
 so obviously has both these meanings that the point may be 
 summarily dismissed. That to " undertake " is not synony- 
 mous with to contract to do must be very obvious to any 
 one who undertakes to read a heavy law book and at the end 
 of his undertaking does not succeed, say, in passing the 
 examination, to do which he had undertaken the uncongenial 
 labour. What we undertake has commonly little enough to 
 do with our contracts. 
 
 The section only applies to accidents occurring on, or 
 in, or about premises on. which the principal has undertaken 
 to execute the work or which are otherwise under his 
 control and management. 
 
 The considerations relevant under the Act of 1897 may 
 be resorted to for the meaning of the words " on or in or 
 about premises." 
 
 On or in or about Thesc words indicate that the fact of an accident 
 
 premises. 
 
 happening off the premises will not exclude from liability 
 if the accident is such that it was substantially caused by 
 work done on the premises ; unless the work were within the 
 exception of the third clause of sec. 4 of the Act of 1897, 
 and " merely ancillary or incidental to, and no part of or 
 process in, the trade or business carried on " upon the 
 premises. 
 
 Work upon railways, factories, mines, quarries, engineering 
 
„ lan V. 
 United Collieries 
 
 Sub- Oontr acting 495 
 
 work or buildings, in fact anywhere in the condition Chap. VIII 
 designated as being subsidiary to the principal end in Distaii^n 
 view, is within the Act, but not the work of those ®'""™'" 
 engaged in employments equally helpful to the main 
 enterprise carried on apart from it by any considerable 
 interval in space. Thus, in Monaghan v. United Collieries Monagh; 
 Co., {a) the Colliery Company were using their engines to co. 
 remove sand from a sand hole abutting on one of their 
 sidings under a contract with the owner, when a man in 
 their employ was killed on the railway line at or near the 
 extremity of the siding. The Court of Session held that 
 the Colliery Company were "not undertakers in respect 
 of their mercantile business, but in respect of their owner- 
 ship of the mine and siding, and their employment of 
 workmen in these dangerous places." Again, in Caledonian Caledonian Ey. 
 
 -r, ■ • . . ^■'"- Breslin. 
 
 By. Co. V. Breslin, (6) a smith was injured while shoeing 
 horses belonging to the company in a smithy wherein he 
 was employed within the area occupied by the company 
 as a general station. The horses were used for hauling 
 trucks and the goods business. It was held that the smithy, 
 being used for the purpose of facilitating public traffic, was 
 " used for the purposes of public traffic " within the meaning 
 of the Eegulation of Eailways Act, and therefore formed 
 part of the railway. Milner v. Great Northern Ey. Co. le) MUner ». Great 
 
 f "' J \ I Northern Ey. Co. 
 
 is not in conflict with these cases. The applicant there, 
 a waitress in the refreshment bar, was excluded, not 
 because she was not employed about the main business of 
 the Company, but because she was not employed in any 
 part of the " station " within the meaning of the Eegulation 
 of Eailways Act, 1873, and was consequently not employed 
 " on or in or about a railway." " The meaning is that at 
 the time of the accident the workman must be employed 
 
 (a) 3 F. 149. (6) 2 P. 1158. 
 
 (c) [1900] 1 Q. B. 795. 
 
496 
 
 Workmen's Compensation Act, 1906 
 
 Powell V. 
 Brown. 
 
 Chap. VIII. upon one of those specified localities ; and the locality of 
 the accident must be within the purview of the section." (a) 
 The words "on or in or about a factory" were the 
 subject of decision in Powell v. Brown. (6) Defendants 
 were occupiers of a factory from which they loaded goods on 
 carts in the street outside. One of their carters while 
 engaged in loading one of their carts was killed by a fall of 
 timber he was loading. Smith, L.J., said (c) the place in 
 question " is not inside the factory, nor is it on the factory 
 premises, but it is just outside them," and " is a place which 
 is habitually used when goods are being taken from the 
 factory to be sold or taken away." The deceased " was in 
 the employment of the factory owners," and " was as much 
 engaged on the business of the factory as if he had been 
 carrying the timber to stow it on the cart." Eeferring to 
 the words " on or in or about," the Lord Justice thus con- 
 tinues : " It is obvious that the Legislature thought that 
 the first two words were not large enough to cover all that 
 they intended to include, and they therefore added the 
 word ' about,' which is clearly an enlarging word. In my 
 view, that word means that the employment may be in close 
 propinquity to the factory, and whether that was so in any 
 particular case is a question of fact to be determined by the 
 tribunal before which the claim comes. The judge in this 
 case has found that the deceased was employed ' about ' the 
 factory, and this brings the case within the statute." 
 
 Chambers v. Whitehaven Harbour Commissioners (d) 
 was, on the point at present being examined, much the same 
 
 Chambers v. 
 Whitehaven 
 Harbour 
 CommlBsioners, 
 
 (a) Chambers v. Whitehaven Harbour Commissioners, [1899] 2 Q. B. 
 132, per Smith, L.J., at 134. 
 
 (6) [1899] 1 Q. B. 157, followed in Lowth v. Ibbotson, [1899] 1 Q. B. 
 1003. 
 
 (c) L. c. at 159. 
 
 (d) [1899] 2 Q. B. 132. 
 
Sub-Contracting 497 
 
 as the earlier cases. A harbour was being dredged by a Chap. VIII. 
 
 steam dredger ; the mud was discharged from the dredger 
 
 into hoppers, which were taken out to sea and emptied. 
 
 One of the workmen employed on the dredger went in his 
 
 turn on the hopper to help to discharge it. When a mile 
 
 and a half out he was knocked overboard and drowned. 
 
 " The man," says Smith, L. J., (a) " was not killed on the 
 
 dredger ; if he had been, I incline to think that he would 
 
 have been within the Act " \i,e. employed on or in or about 
 
 an engineering work], " but I do not decide it ; he was killed 
 
 while employed on the hopper, which was in a similar 
 
 position to the cart in the cases cited. (&) Was he then at 
 
 that time employed on an engineering work which was 
 
 going on in, on or about the dredger? I am clearly of 
 
 opinion that he was not. If the mud had been taken away 
 
 by a cart instead of by a hopper, the case would have been 
 
 precisely the same as Lowth v. Ibbotson." 
 
 Yet, though the judge may find as a fact that an accident ^"^^^,1^;'*™°° 
 has occurred "about" a locality, he could not; under the*""*'"^' 
 Workmen's Compensation Act, 1897, any more than under 
 any other Act, exercise that jurisdiction without any 
 evidence to support his finding or without a proper direction 
 to himself. "It is not left at large under this Act any 
 more than under any other statute," says Collins, L.J., (e) 
 " to the County Court judge to find a question of fact with- 
 out guiding the exercise of his own discretion by a proper 
 direction in law. If he could try such a case with a jury he 
 would be bound to give them the best direction he could as 
 to the class of cases that would or would not come within 
 the meaning of the word * about.' ... No doubt it is not 
 possible to define exactly the meaning of such a word as 
 
 (a) L. c. at 135. 
 
 (6) Powell V. Brown ; Lowth v. Ibbotson, supra. 
 
 (c) Fenn v. MiUer, [1900] 1 Q. B. 788 at 792. 
 
498 Workmen^ Compensation Act, 1906 
 
 Chap. VIII. ' about ' ; but the judge could assist the jury by illustrations 
 of its meaning, or by taking extreme cases which obviously 
 fall on one side or the other of the line that is to be drawn 
 by the jury, guided, as they should be, by his illustrations." 
 In the case before them, where an accident happened to a 
 water cart between 110 and 160 yards from a barn wherein 
 was a steam engine working a mortar mill, which thus was 
 constituted a " factory," the Court of Appeal held that there 
 was no evidence of " such physical contiguity as to come 
 within the meaning of the word ' about ' as used in the Act." 
 
 A distance of 115 yards from a warehouse was held not 
 Tmoh V. « on or in or about " in Tench v. Fish, {a) 
 
 Hoinesas. In Holuess V. Mackay & Davis {b) the injury was sus- 
 
 tained seven minutes before the hour for the commence- 
 ment of work and "some distance" from the place of it. 
 The Court of Appeal held that the claim was not brought 
 within the Act. 
 
 Holmes D. G. N. In Holmcs V. G. N. Ey., (c) as we have seen, (d) the 
 finding of fact was that the employment began when the 
 workman took train at King's Cross to get to his work at 
 Hornsey. This therefore differentiates the case. A distance 
 of 550 yards away was held not to be " about " a yard in 
 crt!.*M'K}nnon. ^^arclay, Curle & Co. V. M'Kinnon. (e) Similarly, 800 yards 
 Kent V. Porter, away was held not " about " a factory in Kent v. Porter, (/) 
 British E^co"' "'^^il© ™ Brodie v. North British Eailway Company, (g) three- 
 quarters of a mile from the junction of a railway with a 
 private line was held not to be "on or in or about" it. 
 Lambton "' Tumbull V. Lambtou Collieries (h) is practically identical. 
 
 CoUierieB. 
 
 (a) By Judge Howland Boberts, Law Times newspaper, 11th May. 
 1901, 3 W. C. C. 140. ' 
 
 (6) [1899] 2 Q. B. 319. (c) [1900] 2 Q. B. 409. (d) Ante, 381. 
 
 (e) 38 So. L. E. 321. (/) L. c. 482. (g) L. c. 38. 
 
 (h) 18 T. L. E. 369. So is Davies v. Ehymney Iron Co., Ltd., 16 
 
 T. L. R. 829. 
 
Sub-ContrcLcting 499 
 
 Middlemiss v. Middle District Committee of Berwick (a) Chap. VIII. 
 was a case where a road had been repaired by means of a Mi^aJ^'S^a, 
 steam roller, and a watering cart had been used in the work, committee^"' 
 The driver of the cart had left the place where the steam 
 roller was, and was watering a piece of road a quarter of 
 a mile away. While at that distance he met with an accident 
 which caused his death. He was nevertheless held to be 
 within the Act since the physical area of the engineering 
 work on which he was engaged extended to the place where 
 the accident happened. This case was followed by the Court 
 of Appeal in Atkinson v. Lumb. (b) The work in that case Atwnson i>. 
 
 '■'■ ■ Lumb. 
 
 was the construction of a reservoir and the laying down pipes 
 for the supply of water from it. A workman was laying the 
 pipes at a point 500 yards distant from the reservoir when 
 he was injured. He was held to be employed " on or in, or 
 about an engineering work " at the time. 
 
 The County Court judge in Spacey v. Dowlais Gas & spaoey u. 
 Coke Co., Ltd., (e) from the axiom that gas works were a coke co. 
 factory under the Act of 1897, arrived at the conclusion that 
 a gas main a quarter of a mile distant was an extension 
 thereof. The Court of Appeal did not accede to this view, 
 and held that a workman at the main was not "about a 
 factory." 
 
 The difference under the Act of 1897 between an 
 engineering work and the other employments included in 
 that Act as regards working " on or in or about " the respec- 
 tive areas is illustrated by Eogers v. Cardiff Corporation, {d) 
 where the whole extent of a corporation's tramway system 
 was held " on or in or about " an engineering work. 
 
 (a) 2 F. 392. 
 (6) [1903] 1 K. B. 861. 
 (c) [1905] 2 K. B. 879. 
 , (d) [1905] 2 K. B. 882 ; Pattison v. White, 20 T. L. R. 775. 
 
500 Worhmen's Compensation Act, 1906 
 
 Chap. VIII. The distinction between the words "on or in or about " 
 "aboiitF" ill sec. 7 (1) and the word "near" in sec. 7 (3) of the Act 
 """"■" of 1897 must not be lost sight of. The words "about " and 
 
 " near " are themselves not by any means synonymous, and 
 
 their collocation is very different, {a) 
 wrigiey 1). The decision of the House of Lords in Wrigley v. Whit- 
 
 Whittaker S; ° •' 
 
 s™s- taker & Sons (b) is conclusive as to this : " To make the 
 
 employer liable the accident must take place in his factory, 
 whereas here it was on the premises of others where work 
 was being carried on. The thing manufactured by the 
 respondents had been completed and finished on their own 
 premises and sent to what might, under other conditions, be 
 a ' factory ' ; but the Act meant the factory of the person 
 who was to be liable for accidents. Here the work was 
 executed entirely away from the respondents' place of 
 business. The appeal was really unarguable." 
 
 cosgiove 1). The Irish case of Cosgrove v. Anglo-American Oil Co. (e) 
 
 Anglo-Americai] . 
 
 Oil Co. has been commented on as inconsistent with Fenn v. Miller, {d) 
 
 Respondents were the owners of premises covering fifteen 
 acres for the manufacturing and storage of barrels; these 
 were manufactured in a factory and stored in another part of 
 the premises some distance away. Applicant was injured 
 while removing a barrel from the storage to another part of 
 the premises to be painted. The Recorder of Dublin found 
 that the barrels at the time of the accident were a " con- 
 siderable distance from and not in * close propinquity ' with 
 the factory. The case thus was on the other side of the 
 
 [a] McMillan v. Barclay, 2 P. 91, where two' miles from a shipbuilding 
 yard was held to be " near." Cp. A.-G. v. Horner. 11 App. Gas. 66, for 
 the meaning of the word " near " when considered in relation to the bounds 
 of a market. 
 
 (6) 18 T. L. B. 559. To the same effect, only longer, in the report, 
 [1902] A. 0. at 301. 
 
 (c) 34 Ir. L. T. B. 56. 
 
 (d) [1901J 1 Q. B. 788 ; Bowatead, Workmen's Compensation, 67. 
 
Sub-Contracting 501 
 
 line indicated in Powell v. Brown. The injured man was Chap. VIII. 
 not employed ' about ' a factory." To this is objected 
 Collins, L. J. 's observation in Fenn v. Miller: (a) "What 
 sort of case is it that is covered by the word ' about ' ? One 
 case that would obviously fall within the meaning of the 
 word is where the business of a factory involves the use of 
 some land beyond the actual physical limits of the buildings ; 
 employment on that land, which may be regarded as a quasi- 
 curtilage of the factory, would be employment ' about ' the 
 factory." The judgment of Fitzgibbon, L.J., is, however, 
 perfectly consistent with Collins, L. J.'s opinion. The barrels 
 were manufactured in the factory ; then stored ; then removed 
 to be painted. " As soon as they were removed from the 
 factory they were outside the scope of the Act." "The 
 word ' about ' cannot be measured by mere physical propin- 
 quity to the factory ; there must be some connection." The 
 finding of the Eecorder was in effect that there were two 
 businesses — the making and the painting. Storage was an 
 intermediate stage. Because two businesses are carried on 
 next door to one another there is no greater liability under 
 the Act for an accident happening in one chargeable against 
 the other than if they were ten miles apart. 
 
 This ground of decision would also cover the case of Burr d. wniiam 
 Burr V, William Whiteley, Ltd. (b) The applicant was head 
 salesman in the hat department of the respondents, whose 
 premises were in two blocks separated by an underground 
 passage. The applicant's department had no machinery, 
 but once a month or thereabouts, he had to go to the other 
 block where machinery was used. On one occasion, returning 
 from the dining-room, he was injured. He was held not to 
 be engaged " about " a factory. 
 
 {a) [1900] 1 Q. B. 788 at 793. 
 (6) 19 T. L. R. 117. 
 
502 Workmen's Compensation Act, 1906 
 
 Chap. VIII. An accident was held not to happen " on or in or about " 
 a railway when a man in the employment of a railway 
 company was injured at a considerable distance from the 
 premises of the railway company on a siding belonging to a 
 private trading company, and used entirely for the latter. 
 This was on the ground that the " siding " was not a siding 
 belonging to the railway company within the definition 
 in the Eegulation of Eailways Act, 1873. (a) Now by 
 sec. 106 (1) of the Factory and Workshop Act, 1901, (h) 
 any siding used in connection with a factory or workshop, 
 or with any place to which any of the provisions of the Act 
 are applied, is to be deemed part of a factory. 
 
 Refreshment Employment in a refreshment room at a railway station 
 
 is not employment, " on, in or about a railway," since the 
 refreshment room is not used " for purposes of public traffic," 
 but only for the comfort or convenience of passengers; 
 neither is a bookstall ; nor an hotel, (e) But a carter in 
 the employment of a railway company who was engaged at 
 a goods station, and who was killed while endeavouring to 
 stop a runaway horse, was held to be engaged " on or in or 
 about a railway." (d) This is the mere application to rail- 
 ways of the principle established in England with regard to 
 factories by Powell v. Brown, (e) It was strenuously 
 argued that the bolting of a horse was not an accident 
 arising out of the employment. The answer seems to be 
 that it was an inherent weakness in the plant em- 
 ployed. (/) 
 
 (a) Brodie v. North British Ey. Co., 3 P. 75 ; 38 So. L. B. 38. 
 (6) 1 Edw. VII. 0. 22. 
 
 (c) Milner v. G. N. By. Co., [1900] 1 Q. B. 795. 
 
 (d) Devine v. Caledonian By. Co., 1 F. 1105. 
 
 (e) [1899] 1 Q. B. 157. 
 
 (/) Cp. Yarmouth v. France, 19 Q. B. D. 647, ante, 181. 
 
Sub-Contracting 503 
 
 Caledonian Ey. Co. v. .Breslin (a) is a decision of the Chap. VIII. 
 Scotch Court somewhat diflScult to assent to. A railway gj^^jj; 
 company kept a number of horses in a stable within their 
 premises at one of their stations. There was a smithy there 
 besides, at which the horses were shod. A smith engaged 
 at the smithy was injured. A claim was made in respect of 
 an employment " on or in or about a railway." The company 
 submitted that the stable and smithy were not " used for 
 public traffic." The Court of Session held that the injured 
 man was employed about a railway, on the ground that he 
 was fitting a part of the railway plant for the purpose of 
 conducting the traffic. It may be observed that he might 
 equally well have been thus occupied in America, 
 
 Lord Adam was even more thoroughgoing in the canon The reasoning of 
 
 ° ° ° the Scotch 
 
 he formulated. He prescribed the test to be whether the J"*8es. 
 stables and smithy were used for the purpose of facilitating 
 the public traffic. The definition in the Eegulation of Eail- 
 ways Act, 1873, says " every station " " belonging to such 
 railway and used for the purpose of public traffic." " He 
 was," says the Lord President, referring to the injured 
 man, " fitting a part of the railway plant for the purpose 
 of conducting the traffic, as much as an engine-fitter or 
 an engine-cleaner preparing an engine to haul a train." 
 That may be conclusive to show that he was engaged in 
 doing work for a railway company ; but it does not advance 
 the real question whether he was engaged in an employ- 
 ment " on or in or about a railway." The Lord President's 
 test would have been complied with had the stables been 
 ten miles distant from the railway, (l) In Milner v. Gr. 
 N. Ey. Co.,(c) Collins, L.J,, speaking as to the facts in 
 
 (a) 2 P, 1158. Op. Mooney v. Edinburgh District Tramway Co., 
 4 P. 390. 
 
 (6) Cp. Oosgrove v. Anglo-American Oil Co., Ltd., 34 Ir. L. T. R. 56 ; 
 also s. 149, sub-s. 4, Factory and Workshop Act, 1901 (1 Edw. VII. o. 22). 
 
 (c) [1900} 1 Q. B. 795 at 799. 
 
504 Workmen's Compensation Act, 1906 
 
 Chap. VIII. that case, says: "In the present case the building as a 
 
 whole, that is, the station, was no doubt used for the purposes 
 
 of public traffic; the question is whether this particular part, 
 the refreshment room, was so used, and I think that it was not." 
 Breslin's case is not grappled with from this standpoint, 
 unless " used for the purpose of public traffic " and " used 
 for the purposes of facilitating public traffic " are phrases of 
 identical value, and the latter is appropriately used to 
 describe the labours of a farrier shoeing a horse. 
 
 The Lord President also treats the matter as concluded. 
 Since " they " (the horses) " are clearly employed in the 
 business of the company as carriers, or, in the language of 
 the Act of 1873, / for the purposes of public traffic ' " — a 
 method of reasoning suggestive of that of the schoolmaster 
 of Themistocles's son in the story. 
 
 Bathgate v. caic- Bathgate V. Calcdonian Ry. Co. (a) takes a view more 
 in accord with the English cases. A carter in the employ- 
 ment of contractors with a railway company for the cartage 
 of goods to and from a station of the company, had delivered 
 some of the goods at the station. This finished his day's 
 work. As he was leaving the station with his horse and 
 lorry on the way to the contractors' stable the horse took 
 fright and bolted. The carter was injured by the horse 
 and lorry dashing into a shop 315 yards away from the 
 station. The Court of Session held that the accident was 
 not "on or in or about a railway." The carter was no 
 longer engaged in the work of the railway, and nothing 
 was being done connected with any of its processes which 
 caused the horse to take fright and run away ; so that the 
 accident was not within the Act. 
 
 Back D. Dick The House of Lords was divided in opinion (three 
 
 ;wo) in Back v. Dick Kerr and Co., Ltd., 
 
 (a) i F. 313. (b) [1906] A. C. 325. 
 
 °" ■ against two) in Back v. Dick Kerr and Co., Ltd., (6) on the 
 
Sub-Contracting 505 
 
 meaning of the words " on or in or about an engineering Chap. VIII. 
 
 work." A horse tramway system was being converted into 
 
 an electrical tramway system. Within a few yards of one 
 
 of the lines of rail there is a railway yard, part of which, 
 
 by arrangement, was appropriated to stacking rails for use 
 
 in this work. In unloading there some of the rails the 
 
 applicant was injured. In the opinion of the County Court 
 
 judge this was " on or in or about " the work. The Court 
 
 of Appeal held that there was no evidence of this : their 
 
 opinion was upheld by the majority of the House of Lords. 
 
 Lord Davey expresses the view of the maiority : " The work of Lord Bavey 
 
 ■' ^ •) J gives the view 
 
 stacking the rails cannot properly be described as ' engineer- of the majority. 
 
 ing work,' within the definition. It may be said to be 
 
 preparatory or ancillary to it, but not, I think, a part of it. 
 
 The appellant was employed in unloading the truck and 
 
 stacking the rails in the station yard by the licence of 
 
 the railway company, but the rails might as well have been 
 
 loaded in a cart and hauled to the ' work,' or they might 
 
 have been stacked at the ironworks where they were made 
 
 until they were required for use. Nor do I think the 
 
 employment can properly be said to be ' about ' the 
 
 engineering work. I do not think this is a mere question 
 
 of comparative proximity. It is difficult to give any very 
 
 definite meaning to this word, and 'I doubt whether it adds 
 
 anything to the description which the Court would not 
 
 have included by construction. I can, however, imagine 
 
 a case where the man might actually be outside the ambit 
 
 of the 'railway, factory, mine, quarry, engineering work' 
 
 or building, but assisting in an operation carried on within 
 
 the ambit." Lord Loreburn, C.'s view, to which Lord Lord iorebum, 
 
 C, and Lord 
 
 James acceded, was that the question was a question of J''™'^^ dissent. 
 fact, which was concluded by the finding of the County 
 Court judge. 
 
 A workman was engaged in driving a train on a private ^OTt™Lta& 
 B.E.L. 2 L 
 
506 Workmen's Compensation Act, 1906 
 
 Chap. Vlli. railway belonging to his employers from a colliery to their 
 coal depot. When the train was come to a point three- 
 quarters of a mile from the pit's mouth, the workman struct 
 his head against a waggon standing in a siding through 
 leaning too far out from the engine, and was killed. The 
 County Court judge awarded compensation under the Act 
 on the ground that the accident occurred "on the 
 appellants' works and adjacent to the mine." The Court of 
 Appeal reversed this, holding that " the accident clearly did 
 not happen on or in or about the mine, because it happened 
 three-quarters of a mile away from the mine. There 
 remained the question whether the meaning of the word 
 ' mine ' was enlarged by sec. 75 of the Act of 1887, so as to 
 include this spot three-quarters of a mile away. The words 
 in that section, ' adjacent to and belonging to the mine,' 
 meant physically adjacent to and belonging to the mine 
 itself, and not merely belonging to the mine owner." (a) 
 
 Monaghani). This docs uot seom to harmouize with the decision in 
 
 ' Monaghan v. United Collieries, (b) unless the respective 
 distances, three-quarters of a mile and eighty yards, make 
 the difference. The owners of a coal mine, and of a siding 
 about eighty yards in length, made a contract with the 
 owners of a sand pit, situate on the line of railway which 
 the siding connects with the mine, to carry sand from the 
 pit in railway waggons to the colliery siding for removal 
 thence by the railway company. A man 'engaged in the 
 work was killed on the railway line, but, in the opinion of 
 the Court, so near to the siding that it could be said to be 
 " on or about " the siding. Thus, it was said, it was just as 
 much part of the mine as the underground workings. 
 Therefore, the employment of the man was " about a mine." J 
 
 (o) TurnbuU v. Lambton Collieries, Ltd., 16 T. L. E. 369; Coylton Coal 
 Co. V. Davidson, 7 F. 727. 
 
 (b) 3 P. 149. 
 
Sub-Contracting 507 
 
 The words of the Act, it will be noted, are " sidings ... in Chap. VIII. 
 
 and adjacent to and belonging to the mine." The second 
 
 point decided was — to give the words of Lord Kinnear : 
 
 " The carrying of sand for hire was not part of the proper 
 
 business of the respondents as a colliery company. But 
 
 that seems to me to be nothing to the purpose. They are 
 
 not undertakers in respect of their mercantile business, 
 
 but in respect of their ownership of the mine and siding, 
 
 and their employment of workmen in these dangerous 
 
 places." Lord Kinnear's exposition can scarcely be taken 
 
 literally, else if the mine owner had carpenters making a 
 
 fence for his mining property, or shepherds or haymakers 
 
 there, they would be within this construction of the Act. 
 
 There is a manifest conflict between this dictum and the Discussed. 
 
 decision of the Court of Appeal in TurnbuU v. Lambton 
 
 Collieries (a) that the words " adjacent to and belonging to " 
 
 the mine " meant physically adjacent to and belonging to the 
 
 mine itself, and not merely belonging to the mine owner." 
 
 By the Factory and Workshop Act, 1901, sec. 106 (1), (6) the 
 
 siding used in connection with a mine, i.e. a factory, becomes 
 
 part of the factory. 
 
 In Davies v. Khymney Iron Co., (c) a colliery com- "^°°\ Vj „ 
 pany provided a train on their railway to take their 
 colliers to their homes. The colliers did not pay to travel 
 by the train, and it was at their option whether or not they 
 used it. An accident happened three-quarters of a mile 
 from the colliery. The Court of Appeal afiSrmed the 
 County Court judge that the accident did not arise out of 
 the employment. The workmen had an option whether to 
 travel by the train or not. Collins, L. J., also concurred in 
 
 (a) 16 T. L. E. 369. 
 (h) 1 Edw. VII. u. 22, s. 106 (1), 
 
 (c) 16 T. L. B. 329; Bimmer v. Premier Qaa Engine Co., 28 T. L. E. 
 610. 
 
508 Workmen's Compensation Act, 1906 
 
 Chap. VIII. the opinion that the accident did not happen " in or on or 
 about " a mine. 
 
 Andrews «. Sub-SeC. (4) of SBC. 4 of the Act of 1906 was con- 
 
 Andrews & ^ ' 
 
 ^^°™- sidered by the Court of Appeal in Andrews v. Andrews & 
 
 Mears. (a) It was admitted that the effect of sec. 1 was to 
 remove the limitation in the Act of 1897 on the liability of 
 the employer to compensate workmen in the case of accident 
 happening "on or in or about" the works of the under- 
 taker as regarded claims against the workman's immediate 
 employer. But the words were reintroduced in the case of 
 a sub-contract. The interpretation is the same as it was 
 under the old Act. It was pointed out by the Court that 
 " under the new Act a liability is first imposed in all cases 
 in favour of a workman against his employer, and then in 
 certain cases there is an additional liability against a person 
 who is called ' the principal/ although the workman is not 
 employed by such principal but by a sub-contractor." The 
 limitation to such principal's liability is marked by 
 sub-sec. (4). 
 
 The facts were : the appellant had contracted to do 
 paving work near the Albert Hall. Part of the contract 
 was to remove rubbish. This had been sublet. Deceased 
 was engaged in the carting. While on a journey removing 
 the rubbish, having gone about two miles distant from the 
 Albert Hall, he fell from his cart in the public street 
 and was killed. The County Court judge found that the 
 appellant was liable to pay compensation. The Court of 
 Appeal reversed his decision. " We are asked," said Cozens- 
 Hardy, M.E., "to hold that this accident occurred 'on or 
 in or about premises ' on which Mears had undertaken to 
 execute the work or which were * otherwise under his control 
 or management.' I am entirely unable to see how that 
 
 (a) [1908] 2 K. B, 567, 
 
Suh-Contracting 509 
 
 contention can be supported." " To say that any portion of Chap. VIII. 
 the roads radiating from the Albert Hall and extending to 
 any distance over which the sub-contractor might be minded 
 to take his cart can be considered as premises on or in or 
 about which Mears had undertaken to execute the work, or 
 which were otherwise under his control or management, 
 seems to me to be giving a wholly unnatural and unjusti- 
 fiable meaning to the language of the proviso of the section. 
 In my opinion the dependants of the deceased workman 
 in the present case have a remedy, of course, against his 
 employer" but not against the appellant. Buckley, L.J., 
 added the remark that " premises " " implies some definite 
 place with metes and. bounds," and also that " a place • other- 
 wise under the control or management ' of the principal " 
 does not comprehend a public street at all. 
 
 Working between tramway lines at another employment, g^'^^^^^- 
 in the case in point telephonic work, is work on or about 
 a railway and so " engineering work " within sec. 7, sub-sec. 2 
 of the Act of 1897. This was held by Collins, M.K,, on the 
 ground that " obviously the governing notion [of the Act] 
 was that the work was such as would bring the men employed 
 under it into specially dangerous relations. Therefore, hi/ 
 whomsoever the worhman was employed, whether by the tram- 
 way owners or by somebody else, if he was so employed 
 upon work which entailed a physical alteration of the rail- 
 road — in the present case a tramway — the emplojrment was 
 brought within the line of danger." Eomer, L.J., disseiited 
 on the ground that the employment of men to lay a tele- 
 phonic wire in which every care was used not to interfere with 
 the tramway or the working of it was not, as a matter of law, an 
 alteration of the tramway, and thus of a railroad within the 
 Act. (a) One's intelligence instinctively leans to Romer, L. J. 's 
 view, but the matter has ceased to be of importance, 
 (a) Adams v. Shaddock, [1905] 2 K. B. 859. 
 
510 Workmen's Compensation Act, 1.906 
 
 Chap. VIII. Premises on which the principal has undertaken to 
 execute the work indicate in the case of a building work the 
 site of the operations ; in the case of an excavation, the 
 place where it is to be or is being made, and so on in 
 accordance with the particular work undertaken to be 
 executed; and "which are otherwise under his control or 
 management " must be limited by his capacity as undertaker 
 of the works, and probably include in the first instance 
 given the building yard and sheds, and in the second, any 
 premises where the debris from the excavation is shot, 
 though this may be doubtful, or the place where the machinery 
 to work with is kept. 
 
 The proviso — "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 purposes of such work, he, and he alone, 
 shall be liable under this Act to pay compensation to 
 any workman employed by him on such work " — is sub- 
 stantially an expansion of subsec. 2 of sec. 1 of the Work- 
 men's Compensation Act, 1900. The reason of it seems to 
 lie in the discrepancy between the methods of ordinary 
 farming and of farming in its scientific mechanical develop- 
 ments. The application of dynamic and mechanical forces 
 to husbandry has developed into an independent business. 
 Probably there was a reasoned objection to give the trained 
 operatives brought down to a farm for special work a 
 remedy against the farmer, who would naturally be most 
 loath to encounter a series of risks of whose import he could 
 not even surmise, and on account of men of whom he had 
 absolutely no knowledge. So distinct is this class of work 
 from that ordinarily undertaken on a farm, that in its classi- 
 fication it is much nearly akin to the work done for an 
 independent employer than for a "principal." 
 
Sub-Contracting 511 
 
 It must be noted that the section only extends to the Chap. VIII. 
 workmen of the contractor. The principal is liable under ' 
 
 the general law for harm befalling his own labourers, though 
 happening from the importation of the new machinery. 
 
 The proviso also applies where the contractor " provides 
 and uses" the machinery. If he only provides it, then 
 on the common law doctrine, he would not be liable for 
 reasonably fit machinery used by another man's servants. 
 If the machinery were not reasonably fit the common law 
 would also provide the remedy. But if the contractor sends 
 his trained men to use the farmer's machinery the contractor is 
 liable for any accident under the definition of " employer," (a) 
 by which one lending servants continues liable to them. 
 This is something like Percival v. Garner, (5) only the Act 
 alters the law. 
 
 There have been under the old Act several decisions 
 which may serve to assist in the apprehension of the phrase 
 " machinery driven by mechanical power." 
 
 A point ruled in a case, Bennett v. Aird, (c) otherwise Bennett «. Am. 
 of little or no authority, was that the words " mechanical 
 power," being equisdem generis with the steam and water 
 power which were mentioned with it in the old Act, were to 
 be construed with reference thereto ; and that therefore " a 
 pulley and chain suspended on shears fastened together at 
 the top, forming a tripod," and set in action by manual 
 power, is not within the Act. This rule is in accord with 
 the decision in Willmott v. Paton, (^) where Stirling, L.J.,™™" "• 
 says, " If the use of any instrument worked by hand power 
 constitutes the premises a place where machinery is worked 
 
 (a) Sec. 13. Ante, 319. 
 
 (6) [1900] 2 Q. B. 406. 
 
 (c) 1 W. 0. 0. 138. 
 
 Id) [1902] 1 K. B. 237 at 241. 
 
512 Workmen's Compensation Act, 1906 
 
 Chap VIII. ^y steam, water, or other mechanical power, then every 
 
 place in which a pulley or a crowbar is used to impart 
 
 motion falls within the definition. I do not think that the 
 expression 'mechanical power ' is fairly capable of such an 
 extended meaning." 
 
 wrigieyi). Wrigley v. Bagley & Wright (a) had previously decided 
 
 Wright. that pulleys worked by a winch were not machinery driven 
 
 by mechanical power, though it was sought to distinguish 
 
 the " mechanical power " of the winch from the hand power 
 
 which set it in motion. 
 
 Eoe V. Fraser. Similar Want of success befell a similar attempt in Roe v. 
 
 Fraser, (6) where it was argued that the lifting of an air 
 compresser from a quay to a lorry for removal by means 
 of a hydraulic jack was an engineering work. But where 
 machinery driven by electric power was used for the 
 purpose of testing a hay-cutting- machine, which during 
 the course of fitting it up from time to time was set at 
 work, and a workman was injured, the Court of Session 
 decided that the workman was employed on a work for 
 the construction of which machinery driven by mechanical 
 power was used, though the actual fitting up of the 
 machine was done only by manual labour." (c) All these 
 cases are now embraced in the Act of 1906, which extends 
 to personal injury in " any employment." 
 
 Indemnity under Sec. 4. 
 
 The principal is entitled to be indemnified by any 
 person who would have been liable to pay compensation 
 
 (a) [1901] 1 K. B. 780. 
 
 (6) 1 F. 1017. 
 
 (c) Eeid V. Fleming, 3 F. 1000 ; op. Purves v. Sterne, 2 F. 887. 
 
Indemnity under Sec. 4. 513 
 
 to the workman independently of this sec. 4. All questions Chap. VIII. 
 of indemnity in default of agreement are to be settled 
 by arbitration under the Act. This indemnity is quite 
 distinct from the indemnity under sec. 6 against a third 
 person ; that can only be enforced by action. 
 
 In the case of a claim to indemnity under this section, 5'^*™ '? 
 
 •' ' Indemnity. 
 
 the principal has to file a notice of his claim in a prescribed 
 form (a) ten clear days before the day fixed for the 
 arbitration. 
 
 Non-appearance at the arbitration involves an admis- P,"^,^*'^ 
 sion of the validity of any award made against the 
 respondent as to any matter which the judge has jurisdic- 
 tion to decide in the arbitration as between the applicant 
 and the respondent, whether such award is made by consent 
 or otherwise, and also the liability of the person served as 
 above to indemnify the respondent to the extent claimed in 
 the notice given by him. (6) 
 
 The judge may adjourn the proceedings in the event 
 of sufficient cause for him to do so being shown, (c) 
 
 At the hearing the judge may, if the third party makes 
 default, on the application of the unsuccessful respondent, 
 " make such an award as the nature of the case may require 
 in favour of the respondent against the third party." 
 Execution is not to issue without leave of the judge till 
 after satisfaction made by the respondent in respect of the 
 applicant's claim against him. The judge retains power 
 to set aside or vary any award made against the third 
 party, {d) The third party may apply before or at the 
 hearing for directions, and the judge give such directions 
 as he may think proper for having the question between 
 the respondent and the third party most conveniently 
 
 (a) W. G. R. 1907, r. 19. Post, 725. (6) W. 0. R. 1907, r. 20. 
 
 (c) Ibid. (d) W. 0. B. 1907, r. 21. 
 
514 Workmen's Compensation Act, 1906 
 
 Chap. VIII. determined and as to the mode or extent as to which the 
 third party is to be bound by the arbitration, (a) The 
 judge has full power over all questions of costs as between 
 the third party and the other parties to the arbitration, (h) 
 
 The determination of a question of indemnity between 
 respondents shall be subject to the same procedure as that 
 provided for between a third party and a respondent, (c) 
 as was required by the decision in Appleby v. Horseley 
 Co., Ltd. (d) " Notice is a necessary preliminary to any 
 indemnity proceedings, and is the foundation of the pro- 
 cedure dealt with," in the rules cited. 
 
 If the workman has a right to recover compensation 
 against the contractor, nothing in this Act is to be taken 
 as substituting the right against the principal for that 
 against the contractor. The workman has either right at 
 his option, but not both, (e) 
 
 (a) W. C. R. 1907, r. 22. Post, 726. (6) W. 0. B. 1907, j.'. 23. 
 
 (c) W. C. R. 1907, L. 26 (1). {d) [1899] 2 Q. B. 521, 526. 
 
 (e) S. 4 (3). 
 
CHAPTER IX 
 
 Compensation 
 
 The consideration of the question of compensation raises Chap. IX. 
 
 some of the most difScult points in the construction of the 
 
 Act. 
 
 The assessment of compensation by the County Court 
 judge is final. " This Court has no right to say whether a 
 County Court judge was right or wrong as to amount when 
 he merely assessed a certain sum as compensation which he 
 had a discretion to assess." (a) 
 
 There is nothing to prevent an agreement to take a sum 
 in compensation, and to abandon all resort to the Act. 
 
 The provisions of sec. 3(6) are with reference to con- Agreed compoax- 
 tracts excluding the provisions of the Act, and substituting 
 some other arrangement. They do not touch the case of a 
 composition agreed on between an employer and a workman 
 who is injured, and whose claim under the Act has become 
 vested. Where arbitration proceedings are taken under the 
 Act other considerations intervene, (c) 
 
 The agreement is liable to be invalidated in the way 
 pointed out when the validity of a receipt was being con- 
 sidered, (d) 
 
 It has been suggested that where there has been an Not to be 
 
 "° reviewed. 
 
 (a) Per Collins, M.B., James v. Ocean Coal Co., Ltd., 20 T. L. E. 483 
 at 484 ; [1904] 2 K. B. 213. 
 
 (6) Ante, 303. (c) Ante, 335. (d) Ante, 116, 
 
dies. 
 
 516 Worhmen's Compensation Act, 1906 
 
 Chap. IX. agreement as to compensation which takes the form of a 
 weekly payment, such agreement may be reviewed under 
 paragraph 16 of the First Schedule, {a) The answer to this 
 seems to be that in the case put there is no weekly payment 
 under the Act. 
 Where workman The caso has also been put of the workman receiving full 
 compensation by agreement and then dying; can his de- 
 pendants claim the amount of compensation to which they 
 would have been entitled had he not been compensated? 
 Even though there is a fair and full settlement with the 
 deceased and a payment under the Act, this — whether aweekly 
 payment or a lump sum — does not preclude the claim of the 
 dependants, but is to be deducted from what the dependants 
 would else have been entitled to ; for the payment of com- 
 pensation is a right given to the dependants subject to this 
 deduction, (5) and which, consequently, the workman may 
 not alienate. On the wording of the Act it would appear 
 that where the payment has not been made under the Act 
 no deduction can be made. The words of the First 
 Schedule (1) (a) (i) are " any weekly payments made under 
 this Act, and any lump sum paid in redemption thereof shall 
 be deducted from such sum." If any of the money paid has 
 come into the hands of the dependants, equity would compel 
 its being taken into account. 
 
 The section (c) dealing with notice cannot affect the 
 matter, since in case of death the notice is to be given 
 within six months of that event, and has no relation to the 
 time of the injury. 
 
 The acceptance of compensation is -prima facie evidence 
 
 (o) Ante, 333. 
 
 (6) First Schedule, par. (3). This is very considerably altered from the 
 analogous provision of the old Act. Ante, 328. See procedure as to pay- 
 ment into Court and investment under First Sched., par (5) W C R 
 1908, r. 4. Post, 886. ^ " 
 
 (c) S. 2, anU, 301. 
 
Compensation 517 
 
 of an agreement, and a bar to a further claim; but the Chap. IX. 
 circumstances of the acceptance may be looked at to rebut 
 this presumption. The law is stated in Proposition VIII. 
 of Chapter V., Part I. (a) 
 
 The scheme of the Act considers compensation under ^'=''^'"^°'-^''- 
 the headings of — 
 
 (1) Compensation to the relatives in cases of death. 
 
 (2) Sustentation to the workman during disablement. 
 
 (1) The compensation which is payable to relatives in 
 consideration of a death by accident in the circumstances 
 
 -bringing the case within the Act is further treated under 
 the heading of — 
 
 (a) Total dependency ; that is, where any relatives are 
 
 left who were wholly dependent upon the earnings 
 of the deceased at the time of his death; 
 
 (b) Partial dependency; where there are no relatives 
 
 left wholly dependent upon the deceased, but 
 where there are some whose means of living were , 
 supplemented by the deceased, and who were 
 consequently partially dependent, and 
 
 (o) where no dependants of any kind are left. 
 
 (2) Sustentation to a workman injured in the circum- 
 stances we have considered, and which bring him within the 
 Act, is similarly apportioned in respect of whether the 
 workman is 
 
 (a) totally disabled or 
 
 (b) partially disabled. 
 
 These four sets of circumstances we are now to consider 
 in their order. 
 
 (a) Ante, 116. 
 
518 
 
 Worhmeris Compensation Act, 1906 
 
 Chap. IX. 
 
 Death. 
 
 Total depen- 
 dency. 
 
 Method of com- 
 puting compen- 
 Bation. 
 
 I. Where the 
 workman has 
 been employed 
 three years at 
 least. 
 
 2. Where the 
 workman has 
 not been em- 
 ployed three 
 years. 
 
 (1) Compensation to the Eelativbs in case of 
 Death. 
 
 (a) Total Dependency. 
 
 We have already dealt with the question of who are 
 dependants, and there is, no need to recur to it. (a) 
 
 The compensation payable is a minimum sum of £150, 
 or a maximum sum of £300. 
 
 The method of arriving at the exact figure differs accord- 
 ing as the deceased has or has not been for the three 
 preceding years to the accident in the employment of the 
 employer in which he has met his death. 
 
 If, for example, the deceased had been employed for the 
 three years preceding at a wage of £2 a week or upwards, 
 his dependants would be entitled to £300 between them. 
 
 If the deceased had been employed for the three years 
 preceding at a wage of £1 a week, his dependants would be 
 entitled to £156. , 
 
 If the deceased had been employed for the three years 
 preceding at a wage of 30s. a week, his dependants would 
 be entitled to £234. 
 
 If the deceased had been employed for the three years 
 preceding at any sum less than about 19s. 3d. a week [1924], 
 his dependants would be entitled to £150. 
 
 But if the deceased had not been employed for the three 
 years preceding, then a different mode of computation is 
 resorted to ; observing always the maximum and minimum 
 limits already indicated. 
 
 If the deceased has not been employed for three years ' 
 (o) Ante, 462. 
 
■ Compensation 519 
 
 the average weekly earnings during the period of his actual Chap. IX. 
 employment is to be ascertained, and this sum is to be ^ 
 
 multiplied by 156. 
 
 If, for example, the deceased had been employed for one 
 week at £4, the amount of his earnings is deemed to be 
 £624. His dependants would consequently be entitled to 
 the maximum award of £300. 
 
 If the deceased had been employed for two years and 
 a half at a varying wage from 25s. to 35s. a week (say half 
 the time at each rate of wages), the weekly average would 
 thus be 30s., and this multiplied by 156 would give £234 as 
 the amount of compensation. If, however, the deceased had 
 been employed for less than a week at 10s. a week, his 
 dependants would, nevertheless, be entitled to an award 
 of £150. 
 
 In each of the foregoing cases a deduction would be 
 made from the sum thus arrived at in respect of any weekly 
 payments made under the Act and any lump sum paid in 
 redemption thereof. In a case then of death where the 
 deceased is within the Act and leaves dependants wholly 
 dependent upon him, the function of the arbitrator in fixing 
 the compensation is merely arithmetical. He has no dis- 
 cretion ; the result is merely a computation. 
 
 The cases given are without complications. But com- Average weekly 
 
 ° ^ earniDgs. 
 
 plications most often arise, and the First Schedule (2) (a) (a) 
 provides generally that " 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." 
 
 It may also be remarked that while three years is the 
 standard period in case of death, twelve months is the 
 standard period in case of partial incapacity. But in either 
 
 (a) Ante, 327, 392. 
 
520 Workmen's Compensation .Act, 1906 
 
 Chap. IX. case failing employment for the standard period an alterna- 
 tive is given for taking an average for a lesser period. 
 
 Cases. In stating the various aspects the question of compensa- 
 
 tion may assume, we have anticipated the doctrine of some 
 of the cases which we must now notice. In Eussell v. 
 
 Temporary or M'Clusky (ffi) the workmau had only been in the employment 
 
 casual employ- ./ \ ' J ± j 
 
 ment f^j. ^^q wecks, yet the maximum limit of £300 was held 
 
 applicable ; and in Forrester v. M'Oallum (b) the employ- 
 ment had been only for portions of two weeks, and the 
 wages were no more than an average of 12s., yet the 
 minimum of £150 was held exigible. Leonard v. Baird & 
 Co., Ltd., (c) was an even stronger case. The man was killed 
 before he had had time to earn wages ; he had descended 
 into the pit to work as a miner, but had not actually 
 commenced work. 
 
 kTLy^onsT"™ ^^^^ Macuaghteu, in Lysons v. Enowles, (d) is very 
 Knowies. explicit: "Where death results from the injury, and the 
 
 workman has left dependants, the compensation must be at 
 least £150. It is to be £150 or a sum equal to either the 
 actual amount or the hypothetical amount of his earnings 
 for the three years immediately preceding the accident, not 
 exceeding in any case £300. But if the workman has not 
 served the full period of three years, and if you could not 
 find a basis on which to calculate the hypothetical amount, 
 the compensation would, I think, still be £150." 
 
 The compensation is based on the " earnings " of the 
 deceased at the time of his death ; or where the period of 
 three years has not been accomplished in the employment of 
 the same employer, then on the "average weekly earnings." 
 These terms, therefore, we must proceed to consider. 
 
 (a) 2 P. 1312. (6) 38 Sc. L. E. 488. 
 
 (c) 3 P. 891. {d) [1901] A. 0. at 93. 
 
Compensation 521 
 
 In Price v. Marsden & Sons (a) tbe contention was that Chap. IX. 
 the words "average weekly earnings during the previous jj^^^^^'^T^eekiy 
 twelve months, if he has been so long employed," ought to ^''™'"^'- 
 be construed as meaning " if he has been so long employed 
 in the same kind of employment." The effect of this con- 
 struction would be that if a workman were employed for 
 nine months in one capacity and were then promoted to 
 another place at a higher remuneration, the average on 
 which compensation would be fixed was that of the three 
 months in the higher grade. The Court held that the 
 words meant " if he has been so long employed by the same 
 employer," and not "if he has been so long in the same 
 grade of employment." (6) 
 
 Now by First Schedule, par. 2 (c) it is specially provided p^^ «• Marajea 
 
 ■' ' JT \ / X J 1. superseded by 
 
 that 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." 
 Thus the contention that was overruled in Price v. Marsden & 
 Sons is now established to be law ; and " in taking the average 
 we are restricted to the period during which the workman 
 has been employed in the same grade. If therefore he 
 has been promoted by the employer to a higher grade and 
 is in this grade at the time of the accident, his earnings 
 when in the lower grade are not to be taken into considera- 
 tion in obtaining the average which is to give his ' average 
 weekly earnings.' " 
 
 It has also been contended that where the workman's How computed. 
 wages are more than £2 a week, so that in the event of 
 injury within the Act he would prima facie be entitled to 
 the maximum allowance, a less sum than the maximum 
 
 (a) [1899] 1 Q. B. 493. 
 
 (6) Op. Noel V. Redruth Foundry Co., [1896] 1 Q. B. 453. 
 (c) Per Fletcher Moulton, L.J., Perry v. Wright, [1908] 1 K. B. 457. 
 B.E.L. 2 M 
 
522 Workmen's Compensation Act, 1906 
 
 Chap. IX. should be awarded, if the injury compensated for is not of 
 the maximum gravity. The contention is that a proportion 
 should be observed between injury and compensation, even 
 where it is admitted that the loss of wages is greater than 
 the utmost amount of compensation payable. The Act, 
 however, is not to be treated as an Act providing for com- 
 pensation for personal injury, but as a provision against loss 
 of pecuniary means consequent on injury. The scale of 
 compensation does not measure the seriousness of injury by 
 a maximum of £1 a week ; but makes provision for loss 
 sustained by injury up to the limit of £1 a week. So soon as 
 loss is proved compensation is assured up to the maximum 
 and in proportion to the injury and not to the maximum. 
 Bortick v. Head, (a) decided upon sec. 3 of the Employers 
 Liability Act, 1880, enforces this view. As Cave, J., says 
 in that case, the section "does not give a measure of 
 damages, but the limit of the maximum damages which 
 may be awarded under that Act." 
 
 Hemttit 'steei" ^^^ method in which the " average weekly earnings " 
 are to be computed was the subject of decision in the Court 
 of Appeal in Keast v. Barrow Hematite Steel Co. (6) For 
 the employers it was contended that the true method was 
 " to take the total amount the man had earned during the 
 previous twelve months — that is to say, if he had been so 
 long employed — and divide that amount by fifty-two, the 
 number of weeks in the year." The contention on the part 
 of the claimant was that, "in making the calculation, those 
 weeks or day in weeks during which the workman had not 
 been actually employed ought to be excluded, and that, 
 therefore, where he had not been working continuously 
 throughout the whole year, the divisor ought not to be 
 
 (a) 34 W. E. 102, reported 53 L. T. 909, and 2 T. L. E. 103, sv,b rum. 
 Boriiok D. Head. 4wfe, 239. 
 
 (6) 15 T. L. R. 141. Cp. Small v. M'Cormiok, 36 So. L. E. 700. 
 
 Co. 
 
Compensation 523 
 
 fifty-two, but some lower number." The Court of Appeal Chap. IX. 
 
 adopted the view presented on the part of the employers. 
 
 "The total amount of the year's earnings ought to have 
 been divided by fifty-two, and not by any less number 
 excluding the weeks when the man was not at work." The 
 effect of this decision is that when workmen, miners for 
 instance, make holiday for a day or two a week, compen- 
 sation for accident is to be reckoned not on the rate of 
 earnings per week, but on the actual earnings. An effort 
 was made by the applicant's counsel to contend that the 
 period that the applicant had been away from work must be 
 taken as a break in the employment. If this were so the 
 employment would have been for less than a year, and the 
 average during the period of employment would have been 
 taken ; of course excluding the period of the break. The 
 question whether a break in employment is no more than a 
 holiday or the termination of the employment, so that the 
 resumption of work operates as a re-engagement, is a matter 
 of fact, which in the case under discussion was determined 
 adversely to the applicant. This point is now cleared up 
 by Bailey v. G. H. Kenworthy, Ltd. (a) 
 
 In Jones v. Ocean Coal Co., Ltd., (b) the workman was intermittent 
 
 employment. 
 
 ia the employment for six months, and then went on strike 
 for five months, when the contract of employment was only 
 determined by notice. On 12th September, 1898, he re- 
 entered the service under a fresh contract of employment. 
 On 3rd October, 1898, he was injured. The workman con- 
 tended that only the period between 12th September, 1398, 
 and the date of the accident should be regarded. The 
 employers asked that the average of the whole twelve 
 months before the accident should be taken and divided 
 by the number of weeks during which the appellant was 
 
 (a) [1908] 1 K. B. 447. Post, 541. (6) [1899] 2 Q. K 124. 
 
524 Workmen's Compensation Act, 1906 
 
 Chap. IX. actually at work, excluding the time pn strike. The 
 County Court judge acceded to this view, but was reversed 
 in the Court of Appeal, on the ground that the admitted facts 
 showed " not merely a break but an actual termination 
 of" the contract. " The question," says Williams, L.J., (a) 
 " is substantially whether the relation of master and servant 
 existed during the whole of the period under consideration, 
 and this applies equally to the lesser period mentioned in 
 the second part of clause 1 (b), and to the period of twelve 
 months in the first part. It seems to me that, if the state 
 of work were such that during the whole twelve months the 
 master could only give three days' work a week to his men, 
 it would still be true within the meaning of this clause to 
 say that the workmen had been employed during the whole 
 of the twelve months, for the relation of master and servant 
 would have existed during the whole time. The real 
 question is whether there has been any break in that 
 relation. To answer that question we may put this test : 
 Are the facts such that we can assume that the workman, if 
 called upon to work, will do so, or that the employer, if 
 asked to give employment, will allow the man to work ? 
 If there is a period of time during which that could not be 
 truly assumed, then the relation of master and servant will 
 have come to an end, and it is impossible to deal with any 
 period of time during which the master and servant have 
 respectively ceased to be willing to give and accept 
 employment." 
 
 Employment Jones V. Occau Co&,l Co. was a case of incapacity result- 
 
 means con- ^ "^ 
 
 mentr™'"'"^' ™S ^^'^^ Jiijury, and the word "employment" in that 
 connection was held to mean "continuous employment." 
 The case of compensation for death was before the Court in 
 Appleby v. Horseley Co., (b) and " employment " there was 
 
 (a) L. c. at 129, (6) [1899] 2 Q. B. 521. 
 
Compensation 525 
 
 held to bear a precisely similar meaning. Deceased had Chap. IX. 
 
 been in the employment for about six months when he met 
 
 with an accident which caused his absence from work for 
 
 eleven months. At the end of that time he was taken on 
 
 by his employers, not as a rivetter at £2 10s. a week as 
 
 before, but in some other capacity, with wages of 30s. a 
 
 week, at which he remained at work for about eight months, 
 
 when he was killed. It was suggested that, if the deceased 
 
 was taken to have been in continuous employment for the 
 
 three years preceding his death, the compensation would be 
 
 his actual earnings— £177. This view was, however, not 
 
 insisted on. In the Court of Appeal the employers — the 
 
 appellants — argued that the only period that could be 
 
 looked to was the period of continuous employment at 30s. 
 
 a week. The respondents' point was that the periods at 
 
 30s. and 50s. were to be taken together. In the one case 
 
 the sum payable would be £284, and in the other £269 15s. 
 
 The Court of Appeal reversed the County Court judge, and 
 
 held that the lesser sum only was payable. 
 
 The same question was discussed in Hewlett v. Hep- ^™^^- 
 burn, (a) The workman was away from work eleven weeks. 
 He returned without any fresh engagement, having left his 
 tools on the job. The County Court judge found that there 
 was a break in the employment. The Court of Appeal merely 
 held that there was evidence on which he could so hold. 
 
 Williams v. Poulson (h) is to the same purport. wiuiMis v. 
 Between 5th March, 1898, and 25th January, 1899, the 
 applicant had been working for the respondent during a 
 portion of each week— except on four occasions, when he 
 did not, for some reason not appearing — though sometimes 
 he only worked one day in the week, and there was no con- 
 tinuous employment, the applicant being a casual dock 
 
 (a) 16 T. L. E. 56. (6) 16 T. L. E. 42. 
 
526 Worhmen's Compensation Act, 1906 
 
 Chap. IX. labourer taken on by the job. The County Court judge 
 took all the periods during which the applicant had worked 
 for the respondent, and found that his total wages amounted 
 to £38 13s. Qd. This sum he divided by the number of 
 weeks, and calculated the applicant's average weekly earn- 
 ings to be about 15s, The award was thus 7s. 6d. On appeal 
 it was contended by the appellants that " where the work- 
 man had been employed only for a period less than a week 
 by the employer, the amount of compensation should be 
 calculated as if he had been employed by the same employer 
 for at least two weeks at the same rate of daily wages that 
 he was earning at the time of the accident." The Court of 
 Appeal refused to interfere. 
 Provision of the This case is provided for by the new enactment, (a) 
 
 Act of 1906. ^ •' _ ^ ' 
 
 The employment was " casual " ; and from the uncertainty 
 of the earnings it was "impracticable at the date of the 
 accident to compute the rate of remuneration." The 
 method therefore to be adopted now is to arrive at "the 
 average weekly amount which, during the twelve months 
 previous to the accident, was being earned by a person 
 employed at the same work by the same employer." Then 
 " the personal element comes in. It will still be open to 
 consider whether the individual workman is an average 
 man or is above or below the average man." (&) 
 
 The case of Williams v. Poulson was before the Court 
 -during the period that the decision of Lysons v. Andrew 
 Knowles & Sons, Ltd., (c) in the Court of Appeal governed, 
 deciding that where a workman had not been in the employ- 
 ment for a period of at least two weeks he could not obtain 
 compensation, because there were no average weekly 
 earnings. Lord McLaren, in Scotland, had decided the 
 
 (a) First Schedule, par. (2) (a). 
 
 (6) Per Cozens-Hardy, M.B., Perry i>. Wright, 1908] 1 K. B. 452. 
 
 (c) [1900] 1 Q. B. 780. 
 
Oompensation 527 
 
 contrary in Eussell v. M'Cluskey, (a) holding that an average Chap. IX. 
 could be arrived at where there was only one week's 
 employment. The Scotch view was maintained in the 
 House of Lords, (h) and the Court of Appeal was overruled. Houseof Lords- 
 
 ^ ' ^-t view of average 
 
 Employment, even for a day, was held to entitle the work- ^"'''y ™8eB. 
 man. The narrow meaning put upon the word "average" 
 by the Court of Appeal was repudiated. "I think, in 
 ordinary popular parlance," says the Lord Chancellor, (c) 
 " when you talk of a man, if he has earned irregular wages, 
 whether unequal wages or equal wages, you would say, 
 speaking of a yearly servant, that on the average he got so 
 much a week or So much a month, as the case might be. I 
 think that it was in that popular sense, taking one day with 
 another, or one week with another, that the Legislature used 
 those words, and I think it is what everybody would under- 
 stand by 'average,' that his earnings were so much — not 
 his agreed earnings by contract, there it would be definite — 
 that if a man was only employed at irregular intervals, or at 
 irregular amounts, you were to get at what the average was 
 by putting them together and striking an average so as to 
 afford a test of the weekly sum to be paid." The proviso to 
 par 2 (a) now gives a means of arriving at an average where 
 the facts of the injured workmen's earnings are insufiScient 
 of themselves to give a rule of computation. 
 
 While the preceding case was yet on its way to the House Hathaway ». 
 
 raj J Argus Printing 
 
 of Lords, Hathaway v. Argus Printing Co. was decided, (d) ^°- 
 This was a claim in respect of casual work done for other 
 employers, also for the contract employer. The applicant 
 had a contract to work on the nights of Thursday and Friday 
 in each week, at 8s. 8d. a night. In the third week of the 
 employment he was injured. The County Court judge 
 
 (a) 2 F. 1312. (b) [1901] A. 0. 79. 
 
 (c) L. c. at 87. {d) [1901] 1 K. B. 96. 
 
528 Workmen's Compensation Act, 1906 
 
 Chap. IX. awarded 8s. M. There were cross appeals. The workman 
 contended that the money paid for work done for other 
 employers, or casual work for the same employer, should be 
 taken into account. The employers contended that casual 
 employment was not within the Act. Both appeals were 
 unsuccessful. As to the workman's contention, it was said : 
 " To enable one to say that a series of short periods should 
 be taken together and treated as a continuous term there 
 must be some nexus to join them. There must be some 
 contract, express or implied, which raises a reasonable 
 expectation of continuity in the employment. In the 
 absence of that nexus, casual engagements on non-contract 
 days do not constitute one continuous employment, for they 
 are not bound together ... I do not think that the appli- 
 cant could be said to have been in the employment of the 
 same employers so far as these casual jobs are concerned, so 
 that they could be treated as a continuous employment." (a) 
 As to the employers' contention, the answer was, "To 
 constitute continuous employment it is not necessary that it 
 should have extended to every day of the week. . . . The 
 agreement was to serve two days in every week for a period 
 extending beyond two weeks, and under those circumstances 
 I can see no difficulty in arriving at the average weekly 
 earnings." (b) 
 
 Casual earnings. These casual earnings are probably within the third 
 
 class noticed by Cozens-Hardy, M.E., in Penn v. Spiers & 
 
 Pond, Ltd., (c) as " casual, sporadic, and trifling in amount," 
 
 which ought not to be brought into account in estimating 
 
 the average weekly earnings. There are other earnings 
 
 which that case shows are not to be neglected in this 
 
 estimation. 
 
 (a) L. c. per Collins, L.J., at 100. 
 (6) L. c. per Stirling, L.J., at 101. 
 (c) [1908] 1 K. B. 766 at 770. 
 
Compensation 529 
 
 The principle of Hathaway v. Argus Printing Co. cannot Chap. IX. 
 be legitimately extended to rule out " overtime " from being overttor" 
 in the same employment. " Overtime " is merely an incident 
 attaching to the employment, a development or extension of 
 it, continuing all the incidents of the employment, its rights 
 and its liabilities, but increasing its remuneration and the 
 period the workman is exposed to its incidents. 
 
 This was held by the Court of Appeal in Giles v. Belford f^fj^^^jj^c^o^''"''* 
 Smith & Co., {a) where the County Court judge came to the 
 " conclusion on the evidence that the nature of the employ- 
 ment was such that the workman would be called on from 
 time to time to work overtime, and it was understood, that 
 he would do so when required, and therefore his employment 
 in that way was not merely casual, and also that the days on 
 which he worked ought not to be regarded each as a separate, 
 casual day's employment, but that there was an underlying 
 presumption that the employment would continue until the 
 completion of the work." The duty of the Court under the 
 Act of 1906 is to ascertain " what remuneration the workman 
 would receive in a normal week in the employment in which 
 he was engaged at the time of the accident," and the Act 
 " gives it freedom to do so in the manner best calculated to 
 arrive at a fair result." (b) 
 
 In the case of a miner killed before he had earned any 
 wages under the Act of 1897 his widow was held entitled 
 to £150. Under the present Act her "solatium" would 
 be the same, (c) 
 
 The Scotch decision of Doyle v. Beattie & Sons {d) held Sntlof "' 
 that, where the injuries do not immediately incapacitate '™™^'"**^' 
 a workman, who accordingly returns to work after the 
 
 (a) [1903] 1 K. B. 843, 847. 
 
 (6) Per Oozens-Hardy, M.E., Perry i). WrigM, [1908] 1 K. B. 441 at 456. 
 
 (c) Leonard i>. Baird & Co., 88 So. L. B. 649. 
 
 (d) 2 F. 1166. 
 
530 
 
 Workmen's Compensation Act, 1906 
 
 Chap. IX. 
 
 Acceptance ojf 
 compensation 
 primd facie 
 evidence of 
 agreement. 
 
 accident, but is ultimately obliged to give over work, the 
 earnings during the period between the accident and his 
 incapacitation may be taken into account. This might well 
 be in the man's favour, for it wquld be evidence of what his 
 earnings would be if uninjured ; but certainly not against 
 him, for the lesser wages he might take would be the con- 
 sequence of the injury, which could not be held to diminish 
 the liability. Williams, L. J., touches the point in Appleby 
 V. Horseley Co. : (a) " Suppose the case of a man in an 
 employment at a high rate of wages, and that during that 
 employment he meets with an accident which results in his 
 death, but not for some little time, and that meanwhile his 
 master gives him some employment, not necessarily the same, 
 but enabling him to earn some wages : in such a case I do 
 not feel sure that the employment with which we should 
 have to deal would not be the employment up to the time 
 of the accident causing the death, and I do not wish to give 
 any opinion as to whether the tribunal assessing the com- 
 pensation should in such a case consider the employment at 
 the lesser wage." 
 
 By sec. 1, sub-sec. 3, the question of compensation is 
 contemplated as one that may be settled by agreement ; 
 and the acceptance of compensation is primd facie evidence 
 of this and a bar to a further claim, (h) 
 
 By First Sched. (1), (a) (i), (c) it is provided that, where 
 compensation is awarded for a death, " the amount of any 
 weekly payments made under this Act, and any lump sum 
 paid in redemption thereof, shall be deducted" from the 
 sum awarded. This would not include any sum in redemp- 
 tion paid to the workman before the expiration of the six 
 
 (a) [1899] 2 Q. B. at 526. 
 
 (6) See Proposition VIII., Chapter V., Part I., ante, 116. 
 
 (c) Ante 25. 
 
Compensation 531 
 
 months under par. (17). For such compensation is not paid Chap. IX. 
 under the Act, but would be a gratuitous payment. The 
 Act only allows redemption under named conditions. If in 
 circumstances to which the Act applies something is done 
 not allowed by the Act, the right of dependants cannot be 
 thus defeated. The fatal accident has deprived them of the 
 support on which they depended and, in the event, they 
 come under the benefits of the Act, which cannot be alienated 
 from them without their concurrence. 
 
 The occasion for making a deduction arises when an 
 applicant has obtained compensation for disablement and 
 subsequently dies, when his dependants may apparently 
 go for a new arbitration and recover within the limits of 
 £150 and £300, less the amount of any weekly payments 
 the deceased may have had made to him " under this Act." 
 Sums paid apart from the Act would not be reckoned iji 
 account. The reasoning in Bead v. Great Eastern Ky. 
 Co. (a) does not appear applicable. The compensation is 
 not for negligence, but a sum in aid of dependants. (6) 
 
 " I think," says Lord Alverstone, O.J., (c) " that a 
 workman who takes the benefit of the Act on the ground 
 of his incapacity to earn wages, and obtains compensation 
 based on the footing of those wages, cannot turn round and 
 say that he is entitled to the balance of his wages during 
 the time in which he has been disabled from work and 
 receiving compensation." 
 
 Another contention was advanced in Houghton v, Sutton Expenses ou 
 
 *-" 01 wages. 
 
 Heath and Lea Green Collieries Co. {d) 
 
 The wages of the deceased were £1 10s. lid. at the 
 time of the accident. The employers were in the habit 
 
 (a) L. B. 3 Q. B. 555. Cp. O'Keefe v. Lovatt, 18 T. L. E. 57. 
 
 (6) AnU, 326. 
 
 (c) Elliott V. Liggens, [1902] 2 K. B. 84, 86. 
 
 id) [1901] 1 K. B. 93. 
 
532 Workmen's Compensation Ad, 1906 
 
 Chap. IX. of supplying oil for the lamps with which the miners 
 worked, and it was the rule of the colliery that 6d. should 
 be deducted weekly in respect thereof. The County Court 
 judge's award was made irrespective of this deduction ; and 
 this was sustained in the Court of Appeal, on the ground 
 that the workman's wages are the full amount agreed to 
 be paid by the employers, and not that amount subject 
 to deductions. "I fail to see on what principle," says 
 Collins, L. J., (a) " a distinction can be drawn between light, 
 by which a man can see the coal on which he is to work, 
 and implements, by means of which he can cut it." 
 
 Miner assisted A similar decisiou was come to in the Scotch case of 
 
 by son who was 
 
 unpaid. Nclson V. Kerr & Mitchell, (b) A miner was assisted by 
 
 his son, who acted as drawer, but to whom he paid no wages, 
 though the, usual wages for a boy so assisting were 2s. 6d. 
 a day. No reduction was allowed in respect of the work 
 done by the boy. 
 
 Abram Coal Co. Houghton's casB was approvcd by the House of Lords 
 in Abram Coal Co. v. Southern, (c) Lord Macnaghten 
 there defines " earnings " as " the full sum for which the 
 man is engaged to work," when he comes to it properly 
 equipped according to the general understanding and 
 practice in the particular trade. Thus, where a deduction 
 is made by agreement from the wages of a collier in respect 
 of cleaning lamps, supplying oil, sharpening picks, and 
 checking weights, his earnings for the purpose of estimating 
 compensation are to be reckoned at the full amount for 
 which the man is engaged to work, without these deductions. 
 
 Midland Ey. Co, The couverse caso came before the House of Lords in 
 Midland Ky. Co. v. Sharpe. (d) Eespondent's husband was 
 
 (a) L. c. at 95. (6) 38 Sc. L. E. 645. 
 
 (c) [1903] A. C. 306. 
 
 (d) [1904] A. C. 349. 
 
GompeTisation 533 
 
 employed as a railway guard. In addition to his wages he Chap. IX. 
 received a fixed sum whenever his duties as guard required 
 him to lodge away from home. The question was whether 
 these fixed sums were " earnings." Lord Robertson (a) put 
 the matter thus : " The contract with this guard is that, 
 plus what is called his wages, he is entitled to so much 
 for each night he is away from home ; and no inquiry 
 is made whether that sum has been spent on board and 
 lodging or spent at all. This being so, it seems to me 
 that not the less because the purpose of these extra pay- 
 ments was to meet the cost of board and lodging has this 
 man a right to the money, and not the less because they bear 
 the name ' allowances ' does the guard earn them each time he, 
 on the service of his employers, has to spend the night away 
 from home. And if he earns them they are ' earnings.' " 
 
 This principle was applied to the case of a man who D^ws'on.^' ^" 
 was employed in a position where he had to appear in 
 uniform, but the uniform was lent him by his employers. 
 The Court held that "the privilege of being given the 
 use of such an uniform by the employers, and thereby 
 relieved from the necessity of paying for it out of his own 
 pocket, must be considered as an additional emolument 
 to be taken into account in estimating his earnings." (b) 
 
 These decisions are now subject to the enactment in 
 par. (2) (d) of the First Schedule. 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. That this provision is inconsistent 
 with the decision in Midland Ey, Co. v. Sharpe (c) is clear ; 
 
 (a) L. e. at 354. 
 
 (6) Per Oozens-Hardy, L.J., G. N. Sy. v. Dawson, [1905] 1 K. B. 
 331, 335 ; Dothie v. Eobert Maoandrew & Co. [1908] 1 K. B. 803 ; Rosea- 
 qvist V. Bowring & Co. [1908] 2 K. B. 108. 
 
 (c) [1904] A. C. 349. 
 
534 Worhmen's Compensation Act, 1906 
 
 Chap. IX. the extent that it actually goes is, however, not so plain. 
 The expenses not included are to be "special expenses 
 entailed on him [the workman] by the nature of his em- 
 ployment." This would seem to confine the allowance to 
 expenses made to the workman for some purpose special 
 to himself and not to the employment. The allowance 
 must be exceptional and not common to all engaged in 
 the same employment, or at least the employment must be 
 exceptional or possibly individual. For example, to take 
 Houghton V the illustration used by Smith, M.R., in Houghton v. Sutton 
 
 SuitoD Heath and j ' ' c 
 
 Coiiier?e9"co. Heath and Lea Green Collieries Co. {a) " In order to do 
 his work he [the workman] had to supply himself with 
 lamp oil, and in the same way he had to supply himself 
 with food, clothes, and other things which he required to 
 enable him to do his work. Are his earnings any the less 
 quoad what he receives from his employers because he has 
 to meet certain expenses ? " It is not to be assumed that 
 items of this sort are " special expenses entailed " by the 
 nature of the employment. On the contrary, they are 
 general, universal — even to the lamp oil. A special expense 
 in the case, say, of a manager would be the sum allowed for 
 travelling to London to give evidence before a Parliamentary 
 Committee, or attending an exhibition of mechanical 
 improvements with a view to their introduction to the 
 mine. • 
 
 Backhouse ». The casc of Backhouse v. Armstrong, Whit worth & Co., 
 
 Armstrong, . - 
 
 whitworth & Co. Ltd., (6) may be noticed in this connection. A workman 
 of the respondents was injured. It was agreed that he was 
 entitled to 10s. &d. a week, unless a deduction could be 
 made on account of 8s. a week due to him for the first 
 thirteen weeks and 5s. weekly for the next thirteen, from 
 a mutual aid fund to which he compulsorily contributed, 
 
 (o) [1901] 1 K. B. 93, 94. 
 
 (6) Eeported very shortly in a note 106 Law Times newspaper, 264, 
 
Compensation 535 
 
 and to which the employers contributed £100 a year to Chap. IX. 
 
 workmen's subscriptions of £1,400, made up of 2d. a week 
 
 per man, retained by the firm as treasurers of the fund. 
 
 The submission was that this was a deduction under a 
 
 contract, and never became wages at all ; it was the firm's 
 
 money. The arbitrator rightly held that this was not so. 
 
 On fulfilling the conditions, entirely irrespective of the 
 
 Act, the workman became entitled. " This Act created a 
 
 new liability of the employer, and any payment a man 
 
 would be entitled to in ordinary sickness should not be 
 
 taken to relieve an employer in case of accident." (a) 
 
 By the First Schedule (2) (a) average weekly earnings New method of 
 are to be computed in the way (whatever it may be) best USsaT"^^^^ 
 calculated to give the rate per week at which the workman 
 was being remunerated. 
 
 But where — 
 
 (1) through the shortness of time during which the 
 
 workman has been in the employment ; 
 
 (2) through the casual nature of the employment ; or, 
 
 (3) through the terms of the employment ; 
 
 it is impracticable at the date of the accident to compute 
 the rate of remuneration of the injured man, it must be 
 estimated according to the method of the section. 
 
 If the case of the individual man is difficult to deal with 
 by reason of any of the three causes above enumerated, a 
 typical Workman is to be taken as the standard of compen- 
 sation, and the compensation is to be measured by his case, 
 who is to be in the same employment if possible, if not, who 
 is to be employed in the same district. 
 
 The Court of Appeal considered the principles involved 
 
 (a) As to items that may -not be inoluded, see Pomphrey v. Southwark 
 Press, [1901] 1 K. B. 86. Post, 568. 
 
536 Workmen's Compensation Ad, 1906 
 
 Chap. IX. in these paragraphs (a) of the schedule in a group of cases 
 reported under the leading name of Perry v Wright. (6) 
 
 Paragraph 1 (a) and (b) of the First Schedule to the Act 
 of 1906 is an exact repetition of paragraph 1 of the First 
 Schedule of the earlier Act. 
 
 Paragraph 2 is a new section appropriate for the inter- 
 pretation of paragraph 1. By it a much greater elasticity 
 is given to the method of arriving at the amount of a 
 workman's " earnings " or " average weekly earnings," and 
 " whether the task [of computing] is ' impracticable ' must 
 be decided at the date of the accident " ; and if so an 
 estimate must be made, based " on the average weekly 
 amount whi,ch during the twelve months previous to the 
 accident was being earned by a person in the same grade, 
 employed at the same work by the same employer, or if 
 there is no person so employed by a person in the same 
 grade employed in the same class of employment." (c) 
 
 " In my opinion," says Fletcher Moulton, L. J., {d) " the 
 term ' average weekly earnings ' signifies broadly the average 
 earnings which the workman would make in a normal week if 
 employed on the terms prevailing before and up to the time 
 of the accident." This he explains thus : (e) " Let us assume 
 that workmen are paid by time, and are in the receipt of 
 £2 a week at a mill that is closed for holidays for two weeks 
 in the year. The wages earned by such workmen in the year 
 are represented by fifty times £2, and not fifty-two times 
 
 (a) That this is the proper nomenclature is evident from par. (15) of the 
 First Schedule, and pars. (16) and (17) of the Second Schedule. 
 
 (b) [1908] 1 K. B. 441. 
 
 (c) Per Cozens-Hardy, M.R., Perry v. Wright, [1908] 1 K. B. at 4S1. 
 The language is borrowed from s. 3 of the Employers Liability Act, 1880. 
 Ante, 126, 240. ■' ' 
 
 (d) Perry v. Wright, [1908] 1 K. B. 486. 
 
 (e) L. c, 461. 
 
Gompensation 537 
 
 £2, and the employer has a right to claim that this shall be Chap. IX. 
 recognized in calculating the average weekly earnings just as 
 much as any other lack of continuity in employment which 
 is inherent in the employment itself. But what is not, in 
 my opinion, fair or in accordance with the Act is to allow 
 the calculation of the average weekly earnings of the 
 particular workmen to be affected by the question whether 
 or not a larger or smaller amount of these enforced stoppages 
 occurs in the relevant period which furnishes the material 
 for the average. For instance, two workmen in the same 
 employment at the same wages would, in my opinion, be 
 entitled to have their average weekly earnings estimated at 
 the same figure, even though the Wakes' Week (a) occurred 
 in the period during which the one had been in the master's 
 employment and did not so occur in the case of the other. 
 The master would be entitled to have regard taken to the 
 fact that the average weekly earnings in such employ were 
 somewhat less than the £2, by reason of the fact that only 
 fifty weeks were worked out of the fifty-two of which a year 
 consists, but the rate of remuneration so arrived at must be 
 applied equally to the case of each of the two workmen." 
 
 But by par. (1) (a) (i) and (b) the " average weekly Employment 
 earnings " are to be those earned " in the employment of ^^^^^^' 
 the same employer " ; and by par. 2 (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." The first word needing explanation in this connec- 
 tion is "grade." "I think," says Cozens-Hardy, M.E.,(6) "Grade." 
 " it refers to the particular rank in the industrial hierarchy ■ 
 
 (a) A period in Lancashire during which works are stopped and perforce 
 workmen must be idle. 
 
 (6) Perry v. Wright, [1908] 1 K. B, 451, 
 
 B.E.L. 2 N 
 
538 
 
 Workmen's Compensation Act, 1906 
 
 Chap. IX. 
 
 Grade. 
 
 Employment 
 by the same 
 employer. 
 
 occupied by the workmaa, such as shepherd, carter, or 
 common labourer on a farm, or mason, or bricklayers, or 
 bricklayer's labourer in the building trade, and not his 
 greater or less excellence in that rank. It is a question of 
 fact whether there is any 'grade' to which the workman 
 belongs. ... If there is no grade an estimate must never- 
 theless be made." 
 
 " That word [grade] 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." (a) If a man is working in any of the 
 circumstances classified in the opening words of the proviso 
 to par. 2 (a) (6) so that it is " impracticable at the date of 
 the accident to compute the rate of remuneration " he has 
 been receiving, the first thing is to find the grade of labour 
 in which he has been working ; next, what are the average 
 wages in that grade. These are not binding on the 
 arbitrator. " The personal element then comes in. It will 
 still be open to consider whether the individual workman is 
 an average man or is above or below an average man. This 
 must be so where men in a particular grade are employed 
 in piece work. You cannot reject evidence of the skill and 
 efficiency of the individual workman." (c) The object of 
 this classification of exceptions is not " to depart from the 
 fundamental principles," but to give greater freedom to 
 the Courts in the admission of evidence in cases where 
 the ordinary modes of computing the average weekly . 
 earnings fail : " " the facts which the Courts may thus take 
 cognizance of are to be ' a guide and not a fetter.' " {d) 
 
 Paragraph 2 (c) defines " employment by the same 
 
 (a) L. c, 453. (6) Ante, 327. 
 
 (c) Per Cozens-Hardy, M.E., I. c, 452. 
 
 (d) Per Fletcher Moulton, L.J., I. c, 458. 
 
Compensation 539 
 
 employer." We have already set out the words. Their Chap. IX. 
 meaning, as expanded by Cozens-Hardy, M.R., (a) is "Any 
 step up or step down from one gi-ade to another is to be 
 regarded as commencing a fresh employment. But in calcu- 
 lating any of the periods mentioned in par. (1), you are to 
 disregard absence due to illness or to causes beyond the 
 control of the workman, and to reckon the employment as 
 continuous, notwithstanding any such absence. This will be 
 only a presumption, which may be rebutted by evidence that 
 the workman was in fact discharged on the ground of such 
 absence and subsequently re-engaged." Fletcher Moulton, change of grade. 
 L. J., (&) expands this thus : " I must not be understood 
 as saying that an increase of wages will necessarily have 
 the effect of excluding from the calculation of this average 
 the weeks in which the lower rate of wages has obtained, 
 because a man's wages may rise or fall without any change 
 of grade taking place. But if there has been a change 
 of grade, they must be so excluded. For instance, if an 
 ordinary seaman has been promoted to be an able-bodied 
 seaman, and continues in that grade up to the date of the 
 accident, par. (2) (c) excludes from the calculation of his 
 average weekly earnings the period during which he has 
 been an ordinary seaman." 
 
 These principles were illustrated by the cases before the P^ry «. wright. 
 Court. In Perry v. Wright (c) the applicant was a casual dock 
 labourer who had worked two days at the date of the 
 accident. He had no regular employment, but worked 
 sometimes for one employer, sometimes for another, as a 
 job turned up. 
 
 The County Court judge found that it was " impracti- 
 . able " to compute the rate of his remuneration. He found 
 
 (a) L. c, 453. (6) L. c, 457. 
 
 (c) [1908] 1 K. B. 441. 
 
540 Workmen's Compensation Act, 1906 
 
 Chap. IX. that there were " no definite grades " other than good and 
 bad ; that the wages of the former averaged 30s. per week, 
 and the latter about 15s. ; that applicant was a man of poor 
 physique owing to drink, and did not stick to his work. So 
 he graded him bad and awarded 15s. a week. 
 
 The decision of the Court of Appeal was that the 
 County Court judge was not entitled to do this ; that bad 
 and good were not grades ; that the only releyant grade in 
 this case was that of casual dock labourers as a whole, 
 whose average earnings the County Court judge might 
 consider ; yet that " after ascertaining what was the 
 average earnings of a casual dock labourer in that district, 
 he is entitled to consider what on that basis is a fair 
 estimate of the average weekly earnings of the workman in 
 question — in other words, how nearly his circumstances 
 approach those of the average labourer." (a) If there are 
 circumstances which differentiate the wages of the in- 
 dividual from those of his grade, the arbitrator is bound to 
 give effect to it. The case was referred back. History 
 does not report what happened. Most probably the 
 County Court judge amended his reasoning and confirmed 
 bis conclusion. 
 
 Cain V. Frederick The ncxt case is Cain V. Frederick Levland & Co. (I) 
 
 Lejrland&Co, •' ^ ' 
 
 Applicant's husband, a casual shipwright, met with a fatal 
 accident in his employment. The standard union rate 
 of wages for shipwrights was 7s. a day. The County 
 Court judge found £1 10s. a week to be "the average 
 weekly amount which during the twelve months previous 
 to the accident was being earned by what I may call 
 an average good shipwright casually employed in the same 
 district as the deceased." Compensation was awarded 
 
 (a) Per Fletcher Moulton, L.J., I. c, 464. 
 (6) [1908] 1 K. B. i.U. 
 
Compensation 541 
 
 on this basis. This was affirmed. " He [the County Court Chap. IX. 
 judge] has not held himself bound as matter of law to 
 adopt the average wages as a basis. But, there being no 
 evidence to show that Cain [the applicant's husband] was 
 either better or worse than an average man, he has thought 
 fit to adopt that basis." (a) 
 
 In Bailey v. G. H. Ken worthy, Ltd., (6) applicant ^a,d ^l^^'^-^-J-^ 
 beea in the employment for more than twelve months when 
 he was injured, and his earnings had amounted during that 
 time to £83 2s. Id. He was paid by the piece and not by 
 time. In the course of the year there were stoppages, 
 (a) by reason of a canal having burst its bank ; (b) during 
 the Wakes Week (c), (c) by reason of accidents to boiler and 
 machinery ; (d) on Bank Holidays. The County Court judge 
 divided the earnings by fifty-two and awarded compensation 
 during incapacity at the rate of 15s. ll^d. The method 
 adopted by the County Court judge was disapproved by the 
 Court of Appeal. " Assume for the sake of clearness that 
 the total of the stoppages from recognized holidays amount 
 to two weeks, and that the remainder of the interruptions 
 from accidents and other causes amount to one week." 
 " The right way of proceeding is to say that the sum total 
 of the earnings, namely, £83 2s. Id., was earned by forty- 
 nine weeks' work, and the average per week thus obtained 
 will give the average wages earned in a week of full work. 
 But there are only fifty weeks of full work in the year, and 
 therefore the average earnings in a week would be less than 
 the figure so obtained by one twenty-sixth part, or about 
 4 per cent. In other words, the earnings in a week of full 
 work are to that extent higher than the average weekly 
 earnings in the employment, because there is incident to it 
 
 (o) Per Oozens-Hardy, M.R., I. c, 454. (6) [1908] 1 K. B. 447. 
 
 (c) See note, ante, 537. 
 
542 WorJcmen's Compensation Act, 1906 
 
 Chap. IX. an enforced idleness of two weeks in the year. The week 
 during which the workman was absent from work on account 
 of breakdown in the works stands in a different position. 
 If such interruptions were a normal and recognized incident " 
 "they might be treated in the same way as the stoppages." 
 " Otherwise . . . accidental interruptions of that kind ought 
 not to be considered as affecting the rate of remuneration 
 which the workman was receiving." The sum of 16s. \l\d. 
 was agreed to be the correct basis of calculation, (a) 
 
 CrawBhay 
 Brothers. 
 
 crawflhay Grough V. Crawshay Brothers (&) is the fourth of this 
 
 series of cases. Applicant's husband met with two accidents. 
 After the first he received half the amount of difference 
 between £1 lis. Ad., the wages he was earning per week 
 when injured, and the average earnings in a light employ- 
 ment which he accepted after the accident ; provided such 
 difference did not exceed 15s. ^d. per week, which was the 
 statutory amount of the compensation. By the second 
 accident he was killed. 
 
 The County Court judge found that the deceased was 
 not working as a collier; that he was employed to carry 
 batteries, and that that was a grade of work ; and he made 
 his award on the basis of the average weekly sum paid as 
 wages for that work. The Court of Appeal upheld the County 
 Court judge. They could not say " as matter of law that 
 there cannot be a grade of battery carriers, and that he must 
 have retained his old grade of a collier. If so, the basis of 
 compensation was properly taken on the footing of his em- 
 ployment in that grade of a battery carrier from December 12 
 [the date of his accepting the light employment] until his 
 death. It was somewhat faintly suggested that the money 
 
 (a) Ab to the effect of public holidays in a contract of employment, see 
 Whitoombe & Tombs v. Taylor, 27 N. Z. L. B. 237. 
 
 (6) [1908] 1 K. B. 448. 
 
Gomjpensation 543 
 
 payable in respect of the first accident ought to be added Chap. IX. 
 to his earnings. But compensation money is one thing and 
 earnings are another thing." (a) 
 
 The second sub-section of par. 2 (2) (b) deals with " con- concurrent 
 
 ■^ \ / \ / contracts. 
 
 current contracts. Though the nature of a concurrent 
 contract has been several times discussed in County Courts, 
 no authoritative decision seems yet to have been elicited as 
 to its connotation, and one must consider the matter 
 on principle alone. 
 
 If a workman enters into contracts with different search for a 
 
 principle. 
 
 employers to give up a portion of his time to service with 
 one, and another portion to service with another, and the 
 two contracts coexist and extend over the same period of 
 time, he manifestly has entered into concurrent contracts of 
 service with two, or it may be with more employers. The 
 average weekly earnings of the workman in the event of his 
 being injured in either employment are then to be computed 
 as if his aggregated earnings were his earnings in the employ- 
 ment in which he was working at the time of the accident. 
 
 But take the case of a bricklayer who after his day's luusuations. 
 work increases his earnings by shoe-blacking or paper- 
 selling. Here the earnings out of hours are not under an 
 employer. His day's work is under contract, not so his 
 evening's work. There are not concurrent contracts of 
 service. He cannot aggregate the earnings of his two 
 occupations. Suppose, again, the case of a casual labourer 
 at the docks who also earns money after hours as a watch- 
 man or other night occupation. According to the practice 
 at the docks he does not work under a contract, he only 
 has a preference — his ticket, which assigns his grade and 
 the extent of his preference. He comes under the benefits 
 of the Act by reason of the proviso to par. (2) (a) of the 
 
 (a) Per Cozens-Hardy, M.E., I. c, 454. 
 
544 Workmen's Compeiisation Aet, 1906 
 
 Chap. IX. First Schedule, and has the compensation to which he is 
 entitled assigned to Jiim by the method indicated there ; 
 but there is no contract to employ him, and after his day s 
 work is done he has no legal claim to another. Con- 
 sequently when he is injured he does not come within 
 par. 2 (b), for the simple reason that he has not " entered 
 into concurrent contracts of service with two " employers. 
 He is not enabled to aggregate his earnings. 
 
 Again, let us take our bricklayer, who of evenings is 
 willing to clean windows. If he has a running contract for 
 this, in the event of being injured while working as a brick- 
 layer, he can claim compensation based on his aggregate 
 earnings as window-cleaner and bricklayer. Nay, more — he 
 can claim for an injury received while working as a window- 
 cleaner from his evening employer, on the basis of his 
 aggregate earnings as window-cleaner and bricklayer. Yet 
 once more — if he is employed now and again by a window- 
 cleaning company, however irregular and uncertain his 
 earnings in this respect, he may yet make them matter of 
 claim when he is injured in his capacity as window-cleaner 
 on the basis of the proviso to par. (2) (a), but not as brick- 
 layer ; for there are not concurrent contracts ; there is one 
 contract and an expectation. 
 
 But if his evening employer is not engaged in the 
 window-cleaning business, but casually gives him a job, (a) 
 he cannot obtain compensation from such employer, nor 
 may he aggregate his earnings with those received as brick- 
 layer in a claim made against his employer for an injury 
 received in his employment as a bricklayer ; since he is " 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," and is excepted from the definition of 
 
 (a) Hill V. Begg, [1908] 2 K. B. 802 ; 24 T. L. E. 711. 
 
Compensation 545 
 
 workman (a) in the Act ; and it follows that work, that is Chap. IX. 
 
 not of a character to bring a man under the Act, when done 
 
 by one who is on other accounts under the Act, is not to be 
 reckoned in assessing the compensation to which he is entitled. 
 But our bricklayer with his day contract to work may 
 get a job of an evening, say, to distribute bills. He may be 
 well known for his handiness, and may have many employers. 
 But his evening employment does not bring him within 
 par. (2) (b) ; so far as his bricklaying contract goes he has 
 not entered into concurrent contracts of service with two 
 or more employers. He would do so were his bill-distribut- 
 ing occupation for successive or even intermittent periods. 
 The reasoning as to this seems satisfactory. If the bricklayer 
 were injured in the day preceding his getting his evening 
 job, at the time of the accident he would have no other 
 contract in existence ; and if the evening work had been done 
 previously to the accident, still at the time of the accident 
 there would be no other contract that could in any reason- 
 able sense be called concurrent. In the converse case, if the 
 injury to the bricklayer is done while he is distributing 
 bills in the way of his then employer's business, there does 
 not seem any reason why he should not aggregate his 
 bricklaying earnings to his earnings as bill distributor. 
 At the time of the accident he is working as bill distributor 
 under a contract, and there is running concurrently with 
 that his contract for his day work at bricklaying. If this is 
 so the provision may be a drawback to the employment of 
 a diligent man. 
 
 The case of a jobbing gardener has been put. The 
 illustration is first of all defective from an ambiguity in 
 the statement. A jobbing gardener (in London at least) 
 very often employs a number of men, whom he detaches to 
 
 (a) S. 13. 
 
546 
 
 Workmen's Compensation Act, 1906 
 
 Chap. IX. 
 
 Working 
 gardener. 
 
 Dewhurst i). 
 Mather. 
 
 his various jobs. In these circumstances any job need not be 
 performed personally ; the contract is not a contract of service. 
 The Act does not render a householder who sends for a 
 plumber or glazier or a jobbing gardener in this sense 
 liable for the injuries sustained either by master or man 
 who are thus employed to work for him. (a) Take, however, 
 the case of a working gardener, but not employing journey- 
 men ; since if he employs men there is a danger that the 
 employment will cease to be a contract of service — and will 
 be outside the Act. Such a man would be entitled to add 
 together his earnings from his various running contracts of 
 service, but not his casual jobs; for at the time' of an 
 accident these would not be subsisting contracts. But in 
 the event of cutting himself with his mower while working 
 for A, he would be allowed to aggregate his earnings from 
 contracts with B, 0, and D in arriving at the compensation 
 payable by A ; the contracts would be concurrent ; but he 
 would not be allowed to bring into the computation any 
 stray jobs he might light upon while holding himself out for 
 hire in the market-place, or wherever he retails his services. 
 
 Dewhurst v. Mather (&) is a typical case of a concurrent 
 contract. The washerwoman who was engaged on "every 
 Friday and every other Tuesday " in that case, worked the 
 rest of the week with other employers, and her collective 
 earnings came to 15s. a week. When it was decided that she 
 was a workman working under a contract and not doing 
 merely casual jobs, the whole of the work she did weekly 
 under contract became capable of aggregation, and she was 
 entitled to recover up to half her weekly earnings. 
 
 The case of several persons in an office or set of 
 chambers entitled to the services of clerks may also be put. 
 The answer to this depends on the contract of service. If 
 
 (a) S. 4 (1). Ante, 305. 
 
 (6) [1908] 2 K. B. 754 ; 24 T. L. E. 819. 
 
Compensation 547 
 
 the clerk is engaged by one, and the others have the right Chap. IX. 
 
 by reason of their contracts with their landlord, perhaps, 
 
 to his services, the service is only one, and any proceeding 
 must be brought against the person with whom the clerk 
 has the service. The aggregate earnings from the whole 
 number would be the sum on which compensation is based. 
 Again, the contract may be with all the principals in the 
 ofSce ; then the clerk's claim would be against that member 
 for whom he is acting at the time of the injury. The basis 
 of compensation would still be the aggregate earnings ; — in 
 this instance, because there are concurrent contracts ; — in 
 the former case because the clerk's earnings from all the 
 sources go to make the average weekly earnings. 
 
 Paragraph (2) (c) is merely a definition already con- 
 sidered, and indicating how to arrive at the normal amount 
 of the wages of the employment previously to entering upon 
 the individual circumstances of the injured workman, which 
 would deteirmine whether the compensation to be assigned 
 by him should deflect either in the way of excess or 
 defect from the normal amount of his grade. 
 
 Paragraph (2) (d) we have already discussed in con- 
 nection with the class of cases that are affected by it. (a) 
 
 (b) Partial Dependency, (b) 
 In the case of total dependency the functions of the Arbitrator's 
 
 ^ 1 . 7 1 1 discretion 
 
 arbitrator are merely to arrive at a sum of which the data unlimited, 
 are immutable. In the cases now to be considered the 
 discretion of the arbitrator is, within the limits indicated 
 by the Act, immutable. The amount payable amongst 
 partial dependants is, as in the former case, a maximum 
 of £300, but there is no minimum fixed. The compensation, 
 
 (ffi) Ante, 533. 
 
 (6) First Schedule, par. (1) (a) (ii.). Ante, 326. 
 
548 Workmen's Compensation Act, 1906 
 
 Chap. IX. unless fixed by agreement, is to be " reasonable and pro- 
 portionate to the injury to the said dependants." (a) 
 
 The words in sec. 2 of Lord Campbell's Act are " pro- 
 portioned to the injury." Under these words it has been 
 decided that — 
 
 (1) The compensation must be for pecuniary loss 
 
 only, (6) and 
 
 (2) The expenses of the deceased's funeral and 
 
 mourning cannot be recovered, (c) 
 
 As to the former of these heads, the compensation is, 
 as we have seen, limited by the present Act. As to the 
 latter, where there is no compensation payable, expenses are 
 recoverable to the extent of £10. The sum recovered in case 
 of death is not protected by par. 19 of the First Schedule, (d) 
 
 The proportion would not be measured by the workman's 
 neglect of his obligations. For example, an employer 
 could not successfully contend that a deceased workman 
 had starved his wife, and that therefore her compensation 
 under the Act was pro tanto diminished. The employer's 
 obligation would be measured by the wife's right, not by 
 her laxity in enforcing it. 
 
 The word "proportionate," however, probably has 
 reference to the conflicting claims inter se of dependants, 
 as for instance between a widow and elder and younger 
 children. 
 
 blnefit"^ If, in the opinion of the arbitrator, there is small injury 
 
 to the partially dependent, he has an absolute discretion 
 to award any sum down to the smallest coin of the realm, (e) 
 The subject of inquiry that he has to set before himself is, 
 
 (a) Ante, 326. Cp. Props. HI., IV., and VII., Chapter V., Part I. 
 Ante, 109 et seqq. 
 
 (b) Ante, 109. (c) Ante, 105. (d!) Ante, 334. 
 (e) Cp. Hildesheimer v. W. & P. Faulkner, Ltd., [1901] 2 Ch. 552. 
 
Compensation 549 
 
 whether there was suflScient present pecuniary benefit, or chap. IX. 
 
 the anticipation of future pecuniary benefit, to constitute 
 
 the applicants in part dependent on the earnings of the 
 deceased, (a) 
 
 In Main Colliery Co. v. Davies, (&) Lord Davey quotes 
 with approval the County Court judge : " I think it is 
 clear that as the boy did give his parents his wages, and 
 the parents did receive and depend on their son's wages 
 as a part of their income or means of living, the question 
 is answered." (c) The arbitrator has in a case of that sort Question for 
 
 ^ arbitrator. 
 
 to say what the benefit is. Again, the fact that the person 
 claiming to be a " dependant " of a workman killed by 
 accident can maintain himself does not of itself debar 
 him from maintaining a claim as a dependant, (d) 
 
 Compensation in the case of partial dependency is to 
 be assessed on the same principle as in the case of total 
 dependency, so that it is not permissible to arrive at his 
 earnings (e) to deduct the cost of living of the deceased 
 workman. 
 
 Any question as to who is a dependant shall in default 
 of agreement be settled by arbitration under the Act, or, 
 if not so settled before payment into Court under this 
 schedule, (/) may be settled by the County Court. Total 
 and partial dependants may alike claim and the compensa- 
 tion shall be apportioned amongst them, (g) The Scotch case 
 of Fagani;. Murdoch (h) is thus superseded even in Scotland. 
 
 (a) Simmons v. White Brothers, [1899] 1 Q. B. 1005. 
 (fc) [1900] A. C. at 363. 
 
 (c) Cp. Leggett & Sons v. Burke, 39 So. L. B. 448. 
 
 (d) Howells V. Vivian & Sons, 18 T. L. E. 36 ; French v. Underwood, 19 
 1. L. E. 416. 
 
 (e) Osmond v. CampbeU & Harrison, Ltd., [1905] 2 K. B. 852. 
 (/) First Schedule, par. (5). 
 
 (g) First Schedule, par. (8). 
 {h) 1 F. 1179. 
 
550 Workmen's Compensation Act, 1906 
 
 Chap. IX. jjj Bevan -y. Crawshay Brothers, Ltd., (a) the contention 
 fxpemes. ^^® *^^* under First Schedule (1) (a) (ii) no a.ward could 
 
 be made to include funeral expenses. 
 
 The only case, it was said, in which the Act admits the 
 funeral expenses of a deceased workman as an element of 
 compensation, is that in which the workman leaves no 
 dependants. The compensation payable was to be " reason- 
 able and proportionate to the injury" — words suggested 
 by the wording of Lord Campbell's Act, under which it 
 had been decided that there was no recovery for funeral 
 expenses. The Court of Appeal, however, would not admit 
 the analogy. (&) It was pointed out that par. (1) (a) (iii) 
 seems to assume that where the deceased workman leaves 
 no dependants, his representatives will have to pay those 
 expenses, and that they ought to be reimbursed the amount 
 of them. " Why should these expenses be repayable in 
 the case where the deceased workman leaves no dependants, 
 and yet should not be taken into consideration in deter- 
 mining the sum reasonable and proportionate to the injury 
 to the dependants to be paid as compensation under 
 sub-sec. (ii)? It seems impossible to suggest any reason 
 why this should be intended. The statute has fixed a 
 maximum amount in the case of compensation to dependants 
 on a deceased workman, and it would, no doubt, not be 
 competent for the arbitrator under the Act to award 
 anything in addition to the maximum amount by way 
 of funeral expenses ; but the Act itself shows that it con- 
 templates funeral expenses as a subject of compensation, 
 and I do not see anything to prevent the arbitrator from 
 taking them into account in considering what sum he shall 
 award under sub-sec. (ii) within the maximum." (c) 
 
 (a) [1902] 1 K. B. 25 ; followed in Gourlay v. Murray, 45 So. L. R. 577. 
 (6) Dalton v. South-Eastem Ry. Co., 4 0. B. tN. S.) 296. 
 (c) Per Oollins, M.R., Bevan v. Crawshay Brothers, Ltd., ri902"l 1 K. B. 
 at 29. 
 
Compensation 551 
 
 (o) Where no Dependants are Left, (a) Chap. IX. 
 
 "Dependants" in this case covers both classes of 
 wholly dependent and partially dependent— where there 
 are dependants of no kind whatsoever. Then the employer 
 is to pay the reasonable expenses of medical attendance 
 and burial ; in all they are not to exceed ten pounds (&) 
 
 In the event of a person dying from the effect of an ^ho may 
 accident within the Act, and leaving no dependants/'""™""^'"'"' 
 difficulty may arise as to who is entitled to put the Act in 
 operation to recover expenses of medical attendance. The 
 legal personal representative who may have rendered him- 
 self liable for them could of course recover. But supposing 
 there is none, a contract would certainly be implied with 
 the deceased, whether adult or minor, (c) to pay the ex- 
 penses incurred; and by taking out administration to the 
 deceased a claim could be made for it by the person to 
 whom it was due. Still, in a case where no more than £10 
 can be recovered, both for the medical expenses and the 
 expenses of burial, a right to administration would be but a 
 profitless privilege, and the only valuable right would be 
 that of going directly against the employer. 
 
 The concluding words of the definition of " workman," (d) Legal personal 
 
 1 i-T/vii • T 1 representative. 
 
 however, meet this dimculty by providing that when the 
 workman is dead the word "workman" in the Act shall 
 include " his legal personal representative, or his dependants 
 or other person to whom or for whose benefit compensation 
 is payable." While par. (5) of the First Schedule (e) 
 provides that if the workman leaves no dependants and if 
 
 (a) First Schedule, par. (1) (a), (iii). Ante, 326.) 
 
 (b) As to the meaning of " reasonable," see ante, 191. 
 
 (c) Medical attendance is a necessary for which a child may contract. 
 Co. Litt. 172a, § 259. 
 
 {d} S. i3,-anie, 320. 
 
 (e) Ante, 329. 
 
552 Workmen's Compensation Act, 1906 
 
 Chap. IX. so agreed the payment in case of death shall be made 
 either " to his legal personal representative, or, if he has no 
 such representative, to the person to whom the expenses of 
 medical attendance and burial are due. {a) 
 
 Funeral With regard to funeral expenses, they were always a first 
 
 expenses. 
 
 charge on assets, and payable even in priority to Crown 
 debts. Unless payment is made under this proviso the 
 payment in the case of death is to be made into the County 
 Court and invested (J) or otherwise dealt with, as the Court 
 in its discretion thinks fit, for the benefit of the persons 
 entitled thereto under the Act. 
 
 In the case of a master, seaman, or apprentice who dies 
 leaving no dependants, no compensation is payable if the 
 ship-owner is liable for the expenses of burial under the 
 Merchant Shipping Act, 1894, (c) for which the provisions 
 of the Merchant Shipping Act, 1906, {d) sec. 34 are now 
 substituted. 
 
 (2) SUSTENTATION TO A WORKMAN INJURED. 
 
 (a) Totally Disabled, (e) 
 Weekly pay- Where' a workman is totally disabled in circumstances 
 
 ment during .' 
 
 incapacity. which entitle him to compensation under the Act, he is 
 entitled to receive a weekly payment during incapacity, (/ ) 
 not exceeding fifty per cent, of his average weekly earnings 
 during the previous twelve months, if he has been so long in 
 the same employment ; but if not, then for any less period 
 
 (a) Cp. note (e) to s. 1 of Lord Campbell's Act, ante, 104. 
 
 (b) Post, 837. 
 
 (c) 57 & 58 Viot. 0. 605, s. 207. 
 
 {d) 6 Edw. VII. 0. 48, [1903] 1 K. B. 589. 
 (c) First Schedule, par. 1 (b). Ante, 326. 
 
 (/) Pattinson v. Stevenson, 109 Law Times Newspaper, 106; 2 
 W. C. 0. 156. 
 
GompeTisation 553 
 
 during which he has been in the employment of the same Chap. IX. 
 employer. The maximum payment is to be £1 a week. 
 
 If the incapacity lasts less than two weeks no compen- 
 sation is to be payable in respect of the first week, (a) 
 
 If the workman is under twenty-one years of age at the 
 date of the injury by which he is totally incapacitated, and 
 his average weekly earnings are less than 20s., he is to be 
 paid the whole of his wages up to a sum of 10s. a week. (&) 
 
 We have already considered many of the elements of 
 this compensation, and there is no need for a repetition 
 here. Keference to what has been before said is sufficient, (c) 
 
 The maximum of £1 a week is by no means reserved for Maximum, 
 cases of entire disablement, but where there is entire dis- 
 ablement no more than £1 can be awarded, (d) 
 
 The workman becomes entitled to an annuity to that 
 amount from his employer, subject to a liability, at the 
 instance of the employer to be redeemed (e) by the payment Redemption. 
 of a lump sum, to be settled, in default of agreement, by arbi- 
 tration. The provision for redemption is subject to the weekly 
 payment having continued for not less than six months. 
 
 Where the workman's incapacity is permanent, such an 
 amount must be secured to him 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. This lump 
 sum may be ordered by the arbitrator to be invested or 
 otherwise applied for the benefit of the person entitled 
 
 {a) First Schedule, par. (1) (6) (a). 
 
 (b) First Schedule, par. (1) (b) (b). 
 
 (c) " Average weekly earnings," cmte, 392, 519 ; " employment," ante, 369 ; 
 " in the employment of the same employer," ante, 537. 
 
 {d) Op. Bortick v. Head, 84 W. B. 102. Ante, 239. 
 
 (e) First Schedule, par. (17). Ante, 333. 
 
 B.E.L. 2 O 
 
554 Worhmen's Compensation Act, 1906 
 
 Chap. IX. thereto. The right to redeem a weekly payment by a lamp 
 
 sum by agreement is not to be afifected by this enactment, (a) 
 
 The proceeding in which this may be assessed is a new 
 
 arbitration, and not the original one. (b) The employer is 
 
 made applicant, the workman respondent. 
 
 DiBcretion ot In Pattinson V. Stevenson, (c) under the Act of 1897, the 
 
 arbitrator. 
 
 Pattinsomi. Countv Oourt iudgc held that the respondent was entitled 
 
 Stevenson. •' . • n crv i 
 
 to the actuarial value of the weekly payment, viz. £750, less 
 a deduction in respect (1) of any contingency there might be 
 of the condition of the respondent improving ; (2) the con- 
 tingency of his dying at an earlier age than the average of 
 human life. The award of £600 was upheld by the Court 
 of Appeal. 
 
 Several material considerations seem, however, to have 
 been overlooked or waived in this arbitration. 
 
 ho'westlmate'd!"' ^^ ^^'^ ^^st place, " an annuity for life " seems to have 
 been accepted as a fixed sum, to be arrived at by an in- 
 spection of annuity tables. But it is manifest that the 
 capital value of an annuity dififers as the security is gopd or 
 bad. In the case in question the annuity agreed on was the 
 amount of a perfectly secured annuity, although the work- 
 man was entitled only to an annuity secured on a builder's 
 business; for the weekly payment made to him would 
 wholly determine in the event of the employer's bankruptcy, 
 with, say, no assets. It would not be a very valuable 
 security, again, in the event of the builder's death leaving no 
 property. Further, the form of the provision for redemption 
 in the statute, by giving the power to redeem only to the 
 employer, indicates that the benefit of the employer is its 
 object. How, then, would the provision ever be resorted 
 to if the employer, anxious to redeem, were entitled to 
 
 (a) First Schedule, par. (17) ; W. 0. E. 1907, r. 59. 
 
 (5) W. C. B. 1907, Appendix B. Post, 750, Form 5. Post, 177. 
 
 (c) 109 Law Times newspaper, 106 ; 2 W. C. C. 156. 
 
Compensation 555 
 
 redeem only on substituting the present value of a govern- Chap. IX. 
 
 ment or perfect secured annuity for the weekly payment 
 
 for which his continued solvency was the sole security ? 
 
 Thus, taking the case of a boy of seventeen in a printer's 
 
 employment, permanently injured by the loss of a limb, if the 
 
 value of the weekly payment awarded was 6s., on what terms 
 
 ought the employer to commute ? A government annuity of 
 
 that amount would be purchasable at about £350 ; clearly 
 
 the boy's right to be redeemed would be a smaller sum than 
 
 that. Now the state has stepped in and prescribed on what 
 
 terms alone the employer shall be permitted to enforce a 
 
 commutation where incapacity is permanent. In other cases 
 
 the old law obtains. 
 
 In redeeming, again, apart from the new enactment, it is ^^'^^"pJ'°° "' 
 not the value of the particular business that has to be taken 
 into account. If it were, a prolonged examination of books 
 would be necessary, and businesses in all respects the most 
 dangerous would be liable to the lowest awards of compensa- 
 tion. It plainly would not be admissible for an employer to 
 seek the benefit of a commutation, and to give evidence that 
 his business was worthless and his solvency doubtful or worse. 
 Neither would it be admissible to show that the employer 
 had a large private estate, and so was better able to pay. 
 The commutation, then, should be on the probabilities of the 
 ordinary trade. What, estimating the average casualties, 
 profits and position of the printing trade — to continue with 
 our illustration — would be the value of an annuity secured 
 on a typical business therein ? 
 
 An annuity according to the tables is calculated on the 
 average duration of human life. Any fact, therefore, that 
 disturbs the average would be admissible either to increase 
 or diminish the commutation. For example, all circum- 
 stances of additional danger in the surroundings of the 
 
556 Workmen's Compensation Act, 1906 
 
 Chap. IX. injured workman — save those arising from the employment 
 itself— confined locality of living, and all things tending to 
 shorten life or lower vitality, are to be regarded, (a) 
 
 In Pattinson v. Stevenson (6) the judge made allowance 
 for possible improvement in condition ; either from mitiga- 
 tion of the malady, where it admits it, or probably from a 
 greater adaptability to circumstances that increases the 
 wage-earning capacity. Mere inconvenience, loss of beauty, 
 scars, pain or suffering of any kind, are not matter of 
 compensation under the Act. Incapacity for earning the 
 normal rate of wage is the sole circumstance to be con- 
 sidered. If the incapacity is total, the compensation is to 
 last during life ; if partial, to stop when the incapacity 
 ceases, or to be measured strictly by the amount of in- 
 capacity and without other regards, (e) 
 
 On the other hand, it is to be remembered that one of 
 the objects of the Act is to force the employer to insure his 
 risk, alid when this mode of meeting the liability becomes 
 general the foregoing remarks must be discounted by the ' 
 consideration that the workman's security is not the 
 master's solvency, but that of the insurance co., which is 
 quite independent of the master's position. 
 
 Par. (17) of the First Schedule has eliminated the principal 
 part of the force of the considerations just noticed in cases 
 of permanent injury ; yet though the employer cannot redeem 
 on other terms than those of a government annuity of three- 
 quarters the amount of the weekly payment, the workman 
 can consent to what terms he will, or, perhaps rather, the best 
 he can make with the end of getting a lump sum in view. 
 Castle Spinning An attempt was made under the Act of 1897 in Castle 
 
 Co, V. Atkinson. 
 
 (a) Rowley v. London & N.-W. Ry. Co., L. R. 8 Ex. 221 at 232. 
 
 (b) 109 Law Times newspaper, 106; 2 W.C. C. 156. 
 
 (c) First Schedule, (1) (6). Ante, 326. 
 
Compensation 557 
 
 Spinning Co, v. Atkinson {a) to redeem, so to speak, with Chap. IX. 
 limited liability. The employers sought to redeem " by the 
 payment of a sum not exceeding £180, which sum the appli- 
 cants are willing to pay the respondent by way of redemption." 
 The County Court judge ordered accordingly. But the award 
 was set aside by the Court of Appeal. " What the Act 
 contemplates is a free and unfettered arbitration as to what 
 sum ought to be paid for the redemption of the liability 
 and not one limited as proposed." 
 
 If the employer "desires to redeem the liability he 
 must do so by paying such a sum as the arbitrator or 
 County Court judge in his unlimited discretion thinks it 
 right to give." Now in the case of permanent incapacity the 
 only right of redemption (apart from an agreement outside 
 the Act) is on the terms that have been already noted. (6) 
 
 The non-conclusive nature of a receipt acquitting the Eeceipt. 
 employer of all claim has been already considered, (e) and the 
 conclusions there arrived at hold good in this regard also, 
 with perhaps additional accentuation where " the parties are 
 mutually under the erroneous belief that the injury is 
 trivial and temporary, if it afterwards appears that the 
 injury is permanent." {d) 
 
 If a workman receiving a weekly payment ceases to workman 
 
 o ./ r ./ ceasing to reside 
 
 reside in the United Kingdom he becomes disentitled to KiJLaJ^. 
 receive a further payment while away ; unless the medical 
 referee certifies that his incapacity is likely to be of a 
 permanent nature, (e) If the referee so certifies the 
 workman is entitled to receive quarterly the amount of the 
 weekly payments during the preceding quarter on proving 
 identity and continuance of the incapacity. (/) Application 
 
 (a) [1905] 1 K. B. 336. (6) Ante, S53. (c) Ante, 116. 
 
 (d) See per Griffith, O.J., Great Fingall Consolidated v. Sheehan, 3 
 0. L. B. (Austr.), 176-190 ; Dornan v. AUan, 8 P. 112. 
 
 (e) First Schedule, (18), ante, 334. 
 
 (/) W. C. E. 1907, r. 60, post, 750 ; W. C. B. 1908, r. 5. Post, 839, 
 
558 Workmen's Compensation Act, 1906 
 
 Chap. IX. has to be made to the registrar on notice in writing 
 and with the report of a medical man selected by the workman 
 who has examined the workman, {a) If the registrar is not 
 satisfied the workman has an appeal to the judge. (&) Either 
 judge or registrar may refer the matter to a medical referee, (c) 
 The employer may then require the workman to submit to 
 an examination by his medical man. {d) 
 
 Where the incapacity is certified as likely to be of a per- 
 manent nature the registrar is to furnish the workman on 
 application with the documents specified in W. 0. E. 1907, 
 r. 60 (8), (e) and shall procure from the workman a specimen 
 of his signature, and file the same for reference. (/) At 
 intervals of three months from the date to which the payment 
 was last made the workman shall furnish evidence on oath of 
 the continuance of his incapacity, (5') and a declaration of 
 identity (K) with a request in his own handwriting for the 
 transmission of the sum due;(i) and the registrar being 
 satisfied shall obtain the sum due and forward it, deducting 
 expenses. (/<;) For the detailed procedure the rules, and 
 specially those of 1908, are to be consulted. 
 
 (b) Partially Disabled. 
 Payment" during- Compensation awarded under this Act for injury differs 
 
 incapacity, . n • i c 
 
 from compensation awarded at common law, m that even after 
 the award the payment is contingent on the continuance of 
 the incapacity. By par. (14) {I) of the First Schedule 
 the employer has a right of investigating the workman's 
 
 (a) W. C, B. 1907, r. 60 (2) ; W, 0. B, 1908, i;, 5, 
 (6) Form 56a. Post, 825. 
 
 (c) W, C. E, 1908, r. 5, Post, 839, Form 57a, Post, 844. 
 
 (d) W. C. E. 1908, i, 5 (4), 840. 
 
 (e) Post, 751, Form 50, Post, 821, 
 
 (/) Post, 752. Also see Forms 58a, ^os*, 845 ; and 59, 60, and 61, post, 827 , 
 
 (g) W. 0. B. 1907, r. 60 (9), Post, im. Form 60, Post, 828. 
 
 (h) lb, (10), Post, 752, Form 61, Post, 828, 
 
 (i) lb. (11). Post, 752. Form 62, Post, 829. 
 
 (7c) lb, (11) (12). Post, 752. Form 63. Post, 829, (l) Ante, 831. 
 
Compensation 559 
 
 continued incapacity. If the workman's recovery is more Chap. IX. 
 rapid than was anticipated, the weekly payment ceases. The 
 payment, in short, is not in respect of injury, but during; 
 incapacity. Under the Act the workman does not recover 
 compensation for pains and suffering, but rather maintenance 
 during the period of disability. 
 
 If this be so the case may occur where serious injury is injuiy without 
 received but yet there is no incapacity ; and consequently, °°''^*°' ^' 
 after convalescence, no compensation under the Act. For 
 instance, a sawyer loses two or three fingers ; this may be, 
 and as a matter of fact sometimes is, no impediment to his 
 earning full wages as a sawyer, and to this extent is not 
 matter for compensation. He may not be damaged as a 
 wage-earning instrument while he continues a sawyer ; but 
 his general adaptability may be greatly impaired, and he 
 may lose opportunities of turning to a more remunerative 
 mode of earning a living. Yet it seems that he is not 
 entitled to compensation, (a) The average amount which 
 he is able to earn after the accident as a sawyer is not less 
 than it was before. The possibility of his changing his 
 occupation for a more gainful or honourable one does not 
 enter into the scheme of the Act ; for the compensation is 
 to be adjusted with reference to the " period during which 
 he has been in the employment of the same employer." 
 
 An injury then that is total — which produces a life-long 
 disfigurement and incapacity for other employments — is 
 only a subject for weekly payments during the period of 
 illness, if, when the workman has got well, he is able with 
 the consequences of his injury to earn as good wages in the 
 employment in which he was injured as he was previously 
 able to earn before he was injured. Of course there is 
 always open the question of fact whether he really is able to. 
 
 (a) Powell Duffryn Steam Coal Co., Ltd. v. Edwards, Times newspaper, 
 23rd July, 1900. 
 
560 
 
 Workmen's Compensation Act, 1906 
 
 Chap. IX. 
 
 Actual wages at 
 lime of accident 
 not conclusive. 
 
 Award dealing 
 with all issues, 
 actual and con- 
 tingent. 
 
 The fact that he is being paid the same wages is not 
 conclusive. It may arise from the compassion or even the 
 artifice of the employers. In Form 1 (a) of the rules is 
 given a form of application for arbitration -in the case of 
 injury ; and there a particular which is required to be given 
 is the "average weekly amount which the applicant is 
 earning or is able to earn in some suitable employment or 
 business after the accident." From the wording of this it 
 is apparent that the actual wages received at the time of 
 the arbitration is not the test of the injury sustained ; 
 indeed it could not be so conclusively ; it is merely an 
 element, possibly not even a necessary element, in fixing 
 the ability of the workman. For example, were a workman 
 injured in such a way that his power of earning for a short 
 period in favourable circumstances was undiminished, but 
 so as to be absolutely disabled through enfeeblement to 
 undertake work at a pressure, his case would appear to be a 
 subject for compensation within the Act. (6) 
 
 By par. (3) of the First Schedule, (c) in fixing the amount 
 of the weekly payment, regard is to be had to the difference 
 of the workman's earnings before the accident and the average 
 amount he is able to earn after the accident. Further, any 
 payment, except wages, which he receives from his employer, 
 while he is incapacitated, is to be taken into account. 
 
 If after a weekly payment has been awarded, a change 
 in any of the conditions occurs, either the workman or the 
 employer may require a new arbitration, (d) and the weekly 
 payment may be ended, diminished or increased. 
 
 In one curious case the circumstances admitted of one 
 award finally dealing with the matter, (e) A workman 
 
 (a) W. 0. E. 1907, Appendix. Post, 767. (6) Post, 566. 
 
 (c) Ante, 328. See Webster v. Sharp, [1905] A. C. 284. 
 
 \d) W. C. B. 1907, rr. 9-11 ; Appendix, Form 6. Post, 777. 
 
 (e) Par. (16). Ante, 333. 
 
Compensation 561 
 
 alleged that the shock of an accident had produced Chap. IX. 
 " glaucoma." On the other hand, it was shown that the Glaucoma, 
 accident had not produced, but had accelerated the develop- 
 ment of the disease, so that blindness would be produced two 
 years earlier than by the unstimulated disease. An award 
 was accordingly made for the two years' incapacity attribut- 
 able to the accident, (a) This was only under the very 
 exceptional facts of the case, and the judge being of opinion 
 that all the evidence attainable was already before him. 
 Even this finding would not displace the power under the 
 provision just noted if there, in fact, proved to be an altera- 
 tion in the circumstances. 
 
 Bradbury v. Bedworth Coal Co. (6) may be noted in this Bradbury «. 
 
 , . . . , . . . Bedworth Coal 
 
 connexion. A miner was injured and received compensa- co. 
 tion for a period. Then he returned to work, till the pit 
 was closed and the workmen were discharged. During three 
 months at intervals the workman asked for work of his old 
 employers, fruitlessly. Then a fresh claim to compensation 
 was made on a renewal of the complaint. The County Court 
 judge held that the weekly payment "was received and 
 ended by mutual consent," and the Court of Appeal that 
 there was evidence warranting this. But the mere fact that 
 the workman has returned to work and is in receipt of the 
 same wages as before is not in itself evidence of an agree- 
 ment to abandon his rights, (c) 
 
 The test of a workman's right to a weekly payment is Test of right to 
 
 •''■*' weekly payment. 
 
 loss of wage-earning power — on the assumption that he is 
 actually earning wages at the time of his incapacitation. 
 
 (a) Ward v. London & North-Western Ey. Co., Ill Law Times news- 
 paper, 209 ; 3 W. C. C. 192. Lee v. W. Baird & Co., Ltd., 45 Sc. L. R. 717, 
 is a somewliat similar case. 
 
 (6) 2 W. C. C. 138 ; The Times newspaper, 30th January, 1900 ; 17th 
 March, 1900. 
 
 (c) Williams v. Vauxhall Colliery Co., [1907] 2 K. B. 433. 
 
562 Workmen's Compensation Act, 1906 
 
 Chap. IX. In Irons v. Davis, {a) a boy of seventeen, who was in 
 
 Irons V, Davis, receipt of 9s. a week wages, was injured and had to have his 
 thumb amputated. The County Court judge awarded him 
 27s., being half of his wages for six weeks (during which he 
 was incapacitated) and, besides, 2s. &d. a week for life. He 
 had, howevei", been taken back by his employers at the 
 same rate of wages. The Court of Appeal, as to the 2s. Qd. 
 a week, reversed the County Court judge, for " there is no 
 difference between his average weekly earnings before the 
 accident and the average amount which he is able to earn 
 afterwards that can possibly be taken into consideration. "(&) 
 If in the future that discrepancy arose, the remedy was a 
 resort to the power of review under par. (12) of the First 
 Schedule, (e) 
 
 Tonng workmen. The Act of 1906 has a proviso in favour of young workmen 
 to meet a difSculty that arises when the injury is serious but 
 the wages small : " 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 fifty 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." The word "pro- 
 bably " in this paragraph may become the subject of great 
 contention. The apprentice's view of probability and that of 
 the employer may materially vary. Assuming that the 
 method of getting at the compensation laid down by the 
 proviso to par. (2) (a) of the First Schedule is brought to 
 bear, an inquiry into the character, efficiency, and pros- 
 pects of the injured workman would be relevant, according 
 
 (as) [1899] 2 Q. B. 330. 
 
 (6) L. t;. per Smith, L.J., at 332. 
 
 (c) Now First Schedule, par, (16). Ante, 333. 
 
Compensation 563 
 
 to the principles laid down by Cozens-Hardy, M.E., in chap. IX. 
 Perry v. Wright, (a) but why should not also the financial 
 position or the practice of the employer? though these 
 would be excluded. 
 
 In the later case of Chandler v. Smith, (b) the same chanaier » 
 feature as in Irons v. Davis recurred. The County Court 
 judge found that the wages for the week of the accident and 
 for the following weeks were paid, not as matters of grace, 
 but in the performance of the contract of service, and that 
 the workman had not been disabled for a period of at least 
 two weeks from earning full wages at the work at which he 
 was employed, and that consequently the Act did not apply. 
 The workman had lost his thumb. His duty was to adjust 
 machinery, and general superintendence. For two weeks 
 after the accident he continued to give supervision, but 
 could not perform his other work by reason of the injury to 
 his thumb, though his wages were paid as usual all the 
 time. The Court of Appeal reversed the County Court 
 judge. The fact that the employer chooses to re-engage 
 the workman at the end of each week at the old wage is 
 some evidence that the employer considers the workman 
 worth that wage, notwithstanding the loss of his thumb. It 
 is plainly not conclusive, but if adhered to will give the 
 workman nothing for what may in the result prove matter 
 for compensation. 
 
 " But," continues Williams, L. J., (e) " having regard to KCTjew of 
 
 ' '■''■' o o weekly payment. 
 
 the provisions of sec. 1, sub-sec. 1 of the Act, that the 
 employer shall be liable to pay compensation if in any 
 employment personal injury arising out of and in the course 
 of the employment, is caused to a workman, and to the 
 provisions in sec. 1, sub-sec. 3, that the question of liability as 
 
 (a) [1908] 1 K. B. at 452. (6) [1899] 2 Q. B. S06. 
 
 (c) L. c. at 515. 
 
564 Workmen's Compensation Act, 1906 
 
 Chap. IX. well as the question of the amount or duration of com- 
 pensation is to be settled by arbitration, it seems to me that 
 the County Court judge in this case might and should have 
 made a declaration of liability, and adjourned the question 
 of the amount and duration of compensation. This seems 
 to me to be in accordance with the spirit of the pro- 
 visions of clause 12 of Schedule I., which provides that the 
 weekly payment may be reviewed at the request either of 
 the employer or of the workman, and on such review the 
 weekly payment may be ended, diminished or increased. If 
 you may review the award when the facts have been ascer- 
 tained for certain, it seems only reasonable that you may 
 postpone the fixing of the amount of compensation until the 
 facts are ascertained to which the measure is to be applied, 
 and I prefer this course to that of awarding a weekly pay- 
 ment of a penny, and then applying the provisions of 
 clause 12 of Schedule I." 
 
 If the course adopted in Irons v. Davis (a) is followed, 
 and a penny a week is awarded, adjournment will not be 
 necessary. But if a penny a week be awarded there seems 
 no insuperable objection to proceeding under par. (16) of the 
 First Schedule of the Act of 1906, and asking for redemption. 
 One County Court judge, in an unreported case, has allowed 
 this to be done. Unless the circumstances are exceptional, 
 the objection to this seems to be that the penny has been 
 awarded to keep open contingent liability, while the redemp- 
 tion shuts the parties out. The jurisdiction will probably be 
 only exercised where there is a consent to redeem, or where 
 the contingencies in regard to which the compensation was 
 kept open can be fairly estimated. 
 Declaration of The coursc of making a declaration of liability was 
 
 liability. ° •' 
 
 followed in Powell Diiffryn Steam Coal Co., Ltd. v. Edwards, (b) 
 
 (a) [1899] 2 Q. B. 330. (b) Times newspaper, 23rd July, 1900. 
 
Gompensation 565 
 
 A collier was obliged to have his leg amputated through Chap. IX. 
 an accident within the Workmen's Compensation Act. His 
 average earnings had been £1. Compensation at the rate 
 of 10s. a week was awarded. The workman then apprenticed 
 himself to a shoemaker. His employers subsequently offered 
 him employment at his old rate of wages in another depart- 
 ment of their colliery, which he refused. The employers 
 then applied to the County Court judge to terminate or 
 diminish the weekly payment, on the ground that the work- 
 man had fully or partially recovered from the effects of his 
 accident since the date of the award within the meaning of 
 par. (12) of the Act of 1897. The County Court judge awarded 
 that the payments should cease. On appeal on behalf of the 
 workman the argument was that " incapacity for work " meant 
 incapacity at the work at which the workman was employed 
 before, and the workman was not capable of working as 
 a collier. The appeal was, however, dismissed on the 
 employers undertaking not to take any objection that the, 
 workman was not entitled to apply to the County Court 
 judge in the future to review the award if circumstances 
 should require. 
 
 The County Court judge made an order in Nicholson v. Nicholson «. 
 Piper (a) that the weekly payments should be ended on the '^^'' 
 ground that the incapacity had ceased. This was afSrmed 
 in the Court of Appeal and in the House of Lords. There 
 had been no appeal, and the order was therefore binding. 
 Lord Halsbury said : " A practice has existed now for some 
 years of making a nominal payment in order to keep the 
 question [of compensation] alive. I do not say that there 
 is any legal effect in that practice." "I wish to leave 
 entirely untouched the question whether the practice of 
 making an order for a nominal payment is one which can 
 
 (a) [1907] A. q. 215. 
 
566 Workmen's Compensation Act, 1906 
 
 Chap. IX. '^^^e a^ny legal effect or not." Lord Eobertson spoke to the 
 
 same effect. 
 
 The expression, of Lord Halsbury is suggestive. The 
 par. (16) gives power on review to end, diminish or increase 
 the compensation ; and by necessity, if the application is not 
 adequately supported, to leave it as it is. But there is no 
 power where the arbitrator finds that the compensation should 
 be ended because the man is no longer incapacitated to keep 
 it alive lest peradventure he should become so. 
 Old age 6r That the workman has reached an age at which he 
 
 inlirmity. ° 
 
 cannot any longer expect to obtain full wages is not a 
 reason entitling the employers to a reduction in the com- 
 pensation originally awarded, (a) When the maximum has 
 been arrived at in the first instance, it is not subject to 
 alteration by anything that takes place subsequently. (6) 
 
 On an application to review the County Court judge 
 has to consider whether and to what extent, having regard 
 to the considerations indicated in the First Schedule, par. (3), 
 it may be proper to reduce the compensation below the 
 maximum by reason of the incapacity for work, which was 
 originally total, having become only partial. 
 Objection of the In the earlier case of Ellis v. Knott, (c) where the 
 
 workman to ' \ / 
 
 employer offered to take back the workman at his old 
 wages, the work offered to the man was such as the County 
 Court judge found the workman could not work at, and " he 
 ought not to compel a man to go back to the employment 
 to which he objected to go." The Court of Appeal affirmed 
 the County Court judge, on the ground that in his mutilated 
 state he was not fit to work at the only work that was offered 
 by his employers. Thus the judge's finding was tantamount 
 to finding that the man's capacity was diminished. 
 
 (a) Jamieson v. Fife Coal Co., 6 P. 958. 
 
 (6) James v. Ocean Coal Co., [1904] 2 K. B. 213. 
 
 (c) Times newspaper, 9tli April, 1900. 
 
 work offered. 
 
Compensation 567 
 
 The contention in lUingworth v. Walmsley (a) was that Chap. IX. 
 the County Court judge could only award fifty per cent, of ming^^ „. 
 the difference between the amount of the wages before and '^*'°"'^y- 
 after the accident ; and this was by the combined effect of 
 the First Schedule, par. (1) (b) and par. (2) of the Act of 
 1897. The Court of Appeal refused to accede to this con- 
 tention. " All that clause 2 (6) means is that the tribunal 
 assessing the compensation is to bear in mind and have 
 regard to the average weekly wages earned before and 
 after the accident respectively. Bearing that in mind, a 
 limit is placed on the amount of compensation that may be 
 awarded, and the only absolute limit is that which is found 
 in clause 1 (b), namely, half the amount of the average 
 weekly wages earned before the accident." (c) The rule is 
 the same in Scotland, (d) An engine-cleaner claimed com- 
 pensation for the loss of his right arm. The Company 
 offered to take him back at the same wages as before the 
 accident. He refused, and it was found as a fact that he 
 was no longer able to do the work. The Court of Session 
 held that he was under no obligation to accept the offer. 
 
 In Eussell v. Holme (e) the County Court judge seemed Eusseiiu. 
 to think it a reductio ad absurdum when he points out that 
 " a workman totally incapacita,ted could only recover one-half 
 his average earnings, not exceeding 20s. per week, whilst 
 a workman partially incapacitated only might recover his 
 full wages ; " but the major proposition he assumes is that 
 the compensation bears a necessary proportional relation to 
 the injury, whereas it is merely the maximum. 
 
 However, so far as this goes, Eussell v. Holme does not 
 
 (a) [1900] 2 Q. B. 142. 
 
 (6) First Schedule, par. (3) of the W. 0. A. 1906. 
 
 (c) L. c. per Eomer, L.J., at Hi. 
 
 {d) Gt. N. of Sootland By. Oo. v. Fraser, 38 So. L. R. 653. 
 
 (e) 108 Law Times newspaper, 373 ; 2 W. C. C. 153. 
 
568 Workmen's Compensation Act, 1906 
 
 Chap. IX. correctly state the law. A man who is totally incapacitated 
 
 can only be compensated to the extent of half his loss. A 
 
 man who is only partially incapacitated may be awarded 
 the whole difference between his wages before and his wages 
 after the accident, provided that difference does not exceed 
 £1 a week,_ and may thus be compensated twice as liberally 
 Pomphreyi). as a man much more severely injured, (a) Pomphrey v. 
 dictum of Collins^ Southwark Press (h) has been cited against this view of the 
 
 L.J., corrected. ^ 
 
 law. Collins, L. J., (c) is there reported as saying : " I take 
 it to be clearly settled that the maximum amount which 
 the injured workman can claim is to be measured by the 
 difference between his earnings before the accident and 
 what he can earn after it. The maximum that can be 
 awarded is one-half the difference so ascertained." But in 
 Wheale v. Ehymney Iron Co. (d) there is a reporter's note 
 stating that the last sentence of the quotation should be 
 deleted. Instead, thereof, the Law Times Eeports gives 
 the words : " The fund out of which that compensation is 
 payable is one-half of the average weekly earnings before 
 the accident." (e) 
 
 Injury compcn- The objection moreover applies with greater force 
 
 sated more . . . 
 
 liberally than in between the incapacitating a man and killing him outright. 
 If the man is killed outright the extreme compensation 
 that can be given is £300. Whereas in the case we were 
 lately considering, Pattinson v. Stevenson, (/ ) where a man's 
 
 (a) Op. Bortick v. Head, 34 W. B. 102. 
 
 (6) [1901] 1 K. B. 86. 
 
 (c) L. c. at 91. 
 
 {d) [1902] 1 K. B. at 61. 
 
 (e) 83 L. T. 468. In Messrs. Parsons & Bertram's work on Workmen's 
 Compensation (2nd ed.) at 85, there is a note embodying the statements in 
 the text, and continues: "The matter was considered hy the Court of 
 Appeal in a case in which a learned County Court judge had felt bound to 
 follow this very explicit dictum. Collins, M.R., there repudiated the 
 words attributed to him, and the case was sent back to be re-heard " ; 
 Jones V. L. & N. W. By. Co., i W. C. C. 140. 
 
 (/) 2 W. C. C. 156. 
 
Compensation 5 69 
 
 ankle bone was fractured, a redemption payment of £600 was Chap. IX. 
 made to him. — 
 
 In Scotland the view just advanced was adopted by the Payment of 
 Court of Session in G-eary v. Dixon, (a) The payment of notofr'gii'. 
 the whole difference is not of right. It is merely one of 
 the elements to be estimated in determining the question 
 of how much is to be given. Nevertheless, the compensation 
 is not limited to the fifty per cent, of the difference ; and the 
 whole fifty per cent, of the workman's average weekly earnings 
 during the previous twelve months, if he has been so long 
 employed, may be awarded in the discretion of the arbitrator, 
 but if not then for any less period during which he has 
 been in the employment of the same employer. But in no 
 case is such weekly payment to exceed £1. The same 
 point was before the first division of the Court of Session in 
 Gourlay v. Murray, (6) where the case was remitted to the Gouriay u. 
 sheriff " with instructions to put a value on the prospective 
 contributions which the deceased would probably have 
 made if he had lived, keeping in mind that an exact 
 estimate of the deceased's responsibility is seldom possible 
 and is not required by the statute." 
 
 Geary's case was followed in Parker v. William Dixon, Parkers. wiuiam 
 
 DixoD, Ltd. 
 
 Ltd. (e) The workman's wages in that case were 39s. 6d. a 
 week. From the time of his injury he was employed at 
 light work at wages of £1 a week. He further had 9s. 9d. 
 compensation paid to him during the time he was earning 
 the £1. When this work came to an end his employers 
 offered him other work at a wage of 33s. a week. This he 
 refused, giving as the reason (and this was correct) that his 
 accident had incapacitated him for it. He then sought com- 
 pensation. The sheriff-substitute, estimating his earning 
 
 (a) (1899) 36 So. L. B. 610. (&) 45 So. L. E. 577. 
 
 (c) 39 So. L. K. 663. 
 B.E.L. 2 t* 
 
Webster v. 
 Sharp. 
 
 570 Workmen's OoTilpensatiofi Act, 1906 
 
 Chap. IX. capacity at £1 a week, awarded him 19s. 6d. additional as 
 compensation. The Court on appeal affirmed the sheriff- 
 substitute, the Lord Justice Clerk saying : " Whether the 
 incapacity be total or partial, it is in the discretion of the 
 arbitrator, on a consideration of the whole circumstances, to 
 award half of the former earnings, or any less sum, as long 
 as the sum awarded does not exceed £1. I think the sound 
 principle is expressed in Geary's case, that the compensation 
 is for the difference between his earning capacity at the 
 time of the accident, and his earning capacity after the 
 accident, this latter being, of course, in many cases, a varying 
 quantity from time to time as changes take place in the 
 measure of improTcment in recovery." 
 
 Erroneoos The ludge of the Bradford County Court laid down a 
 
 principle la J a j 
 
 rule for himself " that the workman is to receive compensa- 
 tion for his loss of wages whether this is total or partial, 
 but that for the protection of the employer there is the 
 proviso that no more than half his wages is to be paid him. 
 In the case of partial disablement I think the Court should 
 first ascertain what is the loss of wages the person has 
 sustained — in this case 13s. 9d. I think, if this is less than 
 the maximum allowed, namely, half the original wages, the 
 whole of such amount ought to be awarded unless there is 
 some reason to the contrary, but that the Court is not bound 
 to award the whole of that amount, but may award a less 
 amount, say half the difference, if it sees fit." (a) The Court 
 of Appeal held that to lay this down as a rule of law was 
 wrong. " I think," says Mathew, L.J., (b) " that the mean- 
 ing of the directions contained in Schedule I., clause 2 of 
 the Act is plain. The County Court judge is thereby 
 directed to consider the relative amounts of the workman's 
 weekly earnings before and after the accident, obviously 
 
 (a) Webster v. Sharp, [1904] 1 K. B. 218, 219. (6) L. c. 221. 
 
Oompensation 571 
 
 for the purpose of. ascertaining whether an amount short of Chap. IX. 
 
 the maxitnum should be awarded by way of compensation. 
 
 I agree that the County Court judge is not necessarily 
 
 bound to fix the amount with reference to the difference 
 
 between the workman's earnings at the two periods.. He 
 
 may think, for example, that though the workman may at 
 
 the time be earning a certain amount, after the accident he 
 
 has received serious injury of a permanent kind, and is not 
 
 likely to continue to earn that average amount. But the 
 
 comparison of the earnings of the two periods is clearly an 
 
 element which the judge is bound to consider in relation to 
 
 the circumstances of the particular case." In the House of 
 
 Lords (a) Lord Halsbury merely said : " We think the 
 
 County Court judge had no right to lay down any such 
 
 rule as he did lay down ; he must decide each case on its 
 
 mierits." 
 
 Pomphrey v. Southwark Press (b) has been mentioned on Apprentice 
 
 '■ •! ^ ' injured, rule of 
 
 account of the misreported dictum of Collins, L.J. It must compensation. 
 now be noticed in connection with another point. An appren- 
 tice received an injury to his right hand which disabled him 
 from working as a skilled artisan, and his indenture of 
 apprenticeship was cancelled. An award was made based 
 on his wages for the previous year. He returned to the 
 employment as a workman at higher wages than at the 
 time of the accident, but less than those he would have had 
 if the injury had not affected his ability. 
 
 The employers applied for a review and termination of 
 the weekly payments, which was refused by the County 
 Court judge, but allowed by the Court of Appeal. "The 
 refusal," says Siaith, M.E., (e) "must have been on one of 
 two grounds. If it was on the ground that had the 
 
 (a) [1905] A. C. 284. (6) [1901] 1 K. B. 86. Ante, 568. 
 
 (c) L. c. at 89. 
 
572 Workmen's Compensation Act, 1906 
 
 Chap. IX. applicant not lost the use of one hand he might now be 
 making more money than the wages he was actually 
 receiving as a labourer, that is a consideration which clearly 
 does not come within the Act. If the refusal was on the 
 ground that the applicant had lost the tuition to which he 
 would have been entitled if the apprenticeship had not 
 been put an end to, that also, in my opinion, was not right. 
 The true reading of the Act ... is that the average earnings 
 before the accident and after it are to be compared. I am 
 not prepared to say whether the word ' earnings ' might not 
 in some cases include more than the cash paid as wages. 
 For instance, I do not say that in the case of a gardener, 
 supposing him to be within the Act, the fact that he was 
 allowed, a cottage free, worth say 5s. a week, might not be 
 taken into consideration in arriving at the amount of his 
 weekly earnings." " The sole elements that are to be taken 
 into consideration in arriving at the amount of the weekly 
 payment," says Stirling, L. J., (a) " that should be awarded 
 in such a case as that before us, are the average weekly 
 earnings before the accident, and the average amount 
 which the workman can earn after the accident. The 
 earnings before the accident embrace cash payments, and 
 possibly include other matters, the value of which is 
 capable of being estimated in money, such as clothes, board 
 and lodging ; but on this point it is not necessary to 
 express an opinion. As to the value of tuition, which it is 
 suggested should be taken into account, speaking for 
 myself, I should be of the opinion expressed by the two 
 learned judges who decided Noel v. Eedruth Foundry 
 Co., (6) that it was not capable of being estiinated." 
 
 New considera- To this Statement of the law an addendum is to be 
 
 tion to be . 
 
 introdnced. made by yirtue of the proviso to par. (16) of the First 
 
 (a) L. c. at 92. (6) [1896] 1 Q. B. 453. Ante, 239. 
 
Compensation ■ 57 S 
 
 Schedule of the Act of 1906 : (a) " Where the workman Chap. IX. 
 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 fifty 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.'' 
 
 Freeland v. Maefarlane (b) is not in accordance with scotch courts do 
 
 ■n t , -^11 11-11 11 not concur in the 
 
 romphrey s case. A boy employed in a bakery, and whose Engush mie. 
 duty was chiefly to clean and prepare fruit for baking, 
 sustained injuries necessitating the amputation of portions 
 of his thumb and three fingers. He returned to the service 
 of the same employer after the accident at the same wages. 
 The Court adopted the course laid down in Chandler v. 
 Smith, (c) but held in addition that the arbitrator can 
 consider the probabilities that, if the injuries had not been 
 sustained, the workman might be making more money. 
 
 It is not necessary that the proceedings for review Review not 
 
 necBssarily by 
 
 should be by arbitration. The parties themselves may arbitration. 
 agree, and if they do the agreement is binding, (d) 
 
 To enable a review under par. 16(e) to be made, it is change in 
 essential that some change in the circumstances can be before review, 
 shown ; otherwise under the fiction of a review there could 
 be indefinite rehearings. Thus, in Crossfield & Sons, Ltd. 
 V. Tanian, (/) an award had been made by the County 
 Court judge who had before him the statement of the 
 workman that his average wages were 30s. a week before 
 the accident. The employers tendered evidence that they 
 
 (a) Ante, 333. (6) 2 F. 832. (c) [1899] 2 Q. B. 506. 
 
 (d) Bradbury v. Bedworth Coal and Iron Co., Timea newspaper, 17th 
 March, 1900 ; 2 W. C. C. 138. Cp. Webster v. L. & N.-W. Ey. Co., Law 
 Times newspaper, 29th June, 1901 ; 3 W. C. C. 52. 
 
 (e) Ante, 333. (/) [1900] 2 Q. B. 629. 
 
574 Workmen's Compensation Act, 1906 
 
 Chap. IX. were no more than 19s. 10\d. This was rejected on the 
 ground that no answer within the time limited by the rules 
 had been put in. No appeal was brought. Then, after 
 paying the amount awarded for seven months, the employers 
 made an application for a review of the weekly payment. 
 The circumstances were admitted to be unaltered. The real 
 point was to upset the award on the 30s. and to have one 
 substituted on the basis of 19s. IQ^d. a week. The Court 
 of Appeal held such an attempt inadmissible. "Clause 
 12 (a) means that in cases where a weekly payment has 
 been ordered, and the injured workman gets better in 
 health and earns better wages, the employer may apply for 
 a review ; on the other hand, the man might get worse and 
 might be able to earn less wages, and he might in such a 
 case take proceedings for a review. It is ' any weekly 
 payment ' not ' any award ' which may be ended, diminished 
 or increased, upon such an application by either employer 
 or workman, subject, as the clause itself says, to the 
 maximum before provided in the schedule." Qi) 
 
 •'"je 5'^'='' c°' Messrs. Parsons & Bertram, in their work on the Work- 
 
 V. Williams, ' 
 
 men's Compensation Act, note an unreported case of Craig 
 Brick Company v. Williams (c) in the Court of Appeal, 
 holding that a definite offer of work made by the employer 
 was such a " change of circumstances " as to entitle him 
 to apply for a review of a weekly payment, although 
 there had been no change in the workman's condition since 
 the award. But the offer will be subject to the considera- 
 tion we have already noticed when considering Ellis v. 
 Knott and that group of cases, {d) 
 
 An application may be made by the workman for a 
 
 [a) Now par. (16) of the First Schedule. 
 
 (h) (1900) 2 Q. B., per Smith, L.J., at 631. 
 
 (c) (3rd ed.) 124. {d) Ante, 566. 
 
Compensation 575 
 
 reconsideration of the sum payable to him, even after the Chap. IX, 
 Court has decided that the workman's total incapacity has 
 ceased, that is, where the question has been kept alive ; (a) 
 for this decision is not res judicata, which may not be 
 avoided by a change in the circumstances. (6) Crossfield & 
 Sons V. Tanian was urged as an authority to the contrary, 
 but Collins, M.R., pointed out that in Crossfleld's case there 
 was no appeal against the award, but subsequently the 
 employers applied for a review of the weekly payment on 
 the ground, really, that they had not been able to set up the 
 true facts at the hearing. In the case now being noticed, 
 " the application appears to be on the ground that evidence 
 is now forthcoming to prove that, by subsequent experi- 
 ment, the decision based on the speculative opinion of 
 medical experts has been shown to be erroneous." " I think 
 that there is a change of circumstances where subsequent 
 experience has shown that the previous opinion based on 
 expert evidence was wrong." 
 
 The fact that since the accident the workman has set up workman sets 
 
 * up business. 
 
 a business of his own, and is earning profits, should be con- 
 sidered in determining whether the weekly payment should 
 or should not be ended or diminished, (c) The problem for 
 the arbitrator is to see how far the money-earning capacity 
 of the workman has been altered, and if it was as good as it 
 was before the accident that is a fact not to be ignored, 
 though the sources of income were not wages earned from an 
 employer. The County Court iudge is entitled to find that ciark v. gm 
 
 c J J , Light iCokeCo. 
 
 the workman's opportunity of finding employment has been 
 narrowed in consequence of the accident, when it is shown 
 that he had made lona fide efforts to get such work as he 
 was capable of doing before the accident, and this though it 
 
 (a) Pomphrey v. Southward Press, [1901] 1 K. B. 86. 
 
 (6) Sharman.i;. HolUday & Greenwood, Ltd;, [1904] 1 K. B. 235. 
 
 (e) Norman & Burt v. Walder, [1904] 2 K. B. 2T; 20 T. L. K, 427. 
 
576 
 
 Workmen's Compensation Act, 1906 
 
 Morton & Co. u, 
 Woodward. 
 
 Chap. IX. is proved that his physical condition is such as to allow 
 of his earning the same wages ; (a) for there is much dis- 
 inclination to employ an injured man. The standard of 
 compensation is the difference between the wages he was 
 able to earn before the accident and the wages he is able to 
 earn after the accident. 
 
 Arbitrator may The arbitrator has power, on an application to review 
 
 inquire into ^ _ / _ . ^ , , . 
 
 circumstances of a Weekly payment on the ground that the workman s m- 
 
 cessation of. J i. J o 
 
 incapacity. ' Capacity has ceased, to inquire whether the incapacity had 
 ceased when the application to review was made, or at any 
 and what subsequent time before the hearing. 
 
 In Morton & Co., Ltd. v. Woodward, (b) a riveter engaged 
 in boiler-making lost the sight of one eye. Compensation was 
 paid weekly, till ultimately the employers asked for a review 
 under the First Schedule, par. (12), in November. The hear- 
 ing took place in December, when it appeared that the 
 workman had submitted to an examination in the previous 
 September at the instance of his employers. The report of 
 a medical referee was then ordered, who did not report till 
 January in the following year. The case was not again - 
 heard till April, when the judge ordered that the weekly 
 payment " be diminished to the weekly sum of one penny, as 
 and from the 16th day of April instant ; but this award is 
 made without prejudice to the rights and remedies of the 
 respondent under the said agreement for the arrears of the 
 weekly payments up to the 16th day of April instant 
 inclusive." The judge found that the workman had been 
 able to earn the same amount of wages since 2nd September 
 
 (o) Clark v. Gas Light and Coke Co., 21 T. L. E. 184. 
 
 (6) [1902] 2 K. B. 276. The Scotch judges are not in accord with this. 
 Steel V. Oakbank Oil Co., 5 P. 244, the Lord Justice Clerk Macdonald dis- 
 senting; Pumpherston Oil Co., Ltd. v. Cavaney, 5 P. 963, Lord M'Laren 
 dissenting. In Southhook Fire Clay Co., Ltd. v. Laughland, 45 Sc. L. E. 
 664, the two above-mentioned oases were distinguished on the ground that 
 in the present case there was no recorded memorandum — only de facto pay- 
 ments, not a judgment. See Fife Coal Co., Ltd. v. Davidson, [1907] S. C. 90. 
 
Compensation 577 
 
 that he had earned previously to the application for Chap. IX. 
 arbitration. The employers appealed on the ground that ' 
 
 they should not be held liable to pay since that date, other- 
 wise they would have to pay merely in consequence of delay 
 in hearing the case. The Court of Appeal sustained this 
 contention. One particular piece of evidence, the referee's 
 report, was conclusive, but only conclusive as to the con- 
 dition of the workman on the 2nd January. " That may 
 throw, and must throw, some light on his condition at the 
 earlier date ; but as I (a) read the Act, there is nothing 
 whatever to make that certificate the sole admissible 
 evidence as to the condition of the man at an antecedent 
 date, or even at the subsequent date when the matter comes 
 on for decision." 
 
 It has been before noticed (6) that the acceptance of Compensation is 
 
 ^ ' ^ inconsistent 
 
 compensation blots out the claim for wages. The claims are ^^mX'""™'* 
 inconsistent. If the workman is entitled to his full wages ^*^^^' 
 he is not entitled to any sum under the Workmen's Com- 
 pensation Acts ; if he is entitled to payments under these, 
 he is taken to forego his right to wages, (e) 
 
 Eothwell V. Davies (d) decided that there is nothiner in the Rothweii u. 
 Act which imposes an obligation on a workman to submit 
 to a surgical operation in order to render himself fit. In 
 this particular case there was some risk involved ; but this 
 fact may be eliminated as irrelevant to the decision, which 
 went on the principle. In Scotland the Courts seem dis- 
 posed in some cases to take upon themselves to decide 
 whether or not an operation should be submitted to. Thus 
 
 (o) Cozens-Hardy, L.J., I. c. at 282. 
 
 (6) Ante, 531. 
 
 (c) Elliott V. Liggens, [1902] 2 K. B. 84. The power to require a work- 
 man to submit himself for examination by a duly qualified medicp.1 
 practitioner under the First Schedule, par. (4), is considered, ^os*, 675. 
 
 (i) 19 T. L. B. 423. 
 
578 Workmen's Compensation Act, 1906 
 
 Chap. IX. in Anderson v. Baird (a) a workman had submitted to two 
 Ander^^ Operations on his thumb, but declined to submit to a third, 
 ^*"''^" which was said to be "a simple one not attended with 
 
 serious risk or pain, and such as a reasonable man not claim- 
 ing compensation would for his own advantage and comfort 
 elect to undergo." This was held to disentitle him to com- 
 swecncy r. pum- pensation. Lord Youug dissented. In Sweeney v. Pum- 
 pherston Oil Co. (&) the suggested operation was the removal 
 of a piece of the workman's elbow bone ; from which the 
 man's doctor dissuaded him. The Court refused to subject 
 the man to any penalty for declining to submit to it. In 
 nonneiiy v. Donnellv V. William Baird & Co., Ltd., (c) the operation was 
 
 William Baird ■' » ' \ / r 
 
 & Co. « unattended with danger to life or health or with serious 
 
 suffering " ; it was the amputation of a finger. The Court, 
 on the workman's refusal to undergo it, held him " pre- 
 cluded from further insisting on his claim for weekly pay- 
 ments." Lords Stormonth-Darling and Pearson dissented 
 on the ground that a workman's refusal to undergo a 
 surgical operation even of a minor kind cannot be visited 
 with a practical denial of his right to further compensation. 
 
 Allowance from Neither cau the employer reduce the compensation bv 
 
 benefit society. , . . i i n 
 
 showing that the workman is getting a weekly allowance 
 from his benefit society. Where it is shown that "in- 
 capacity for work results from the injury " the condition of 
 the Act is complied with. The payment is to be made 
 " during the incapacity." 
 
 In case of death the payment of compensation is to be 
 paid into the County Court unless otherwise ordered, (i^) 
 
 (o) 5 P. 373. Dowds v. Bennie, 5 P. 268 : The employer was held 
 justified in discontinuing weekly payments where the workman's incapacity 
 is caused by neglect to exercise an injured limb to prevent its getting stifE. 
 
 (b) 5 P. 972. 
 
 (c) 45 So. L. B. 394, followed by the 0. of A. in Wamokeni;. E. More- 
 land, & Son (Ltd.), Times newspaper, Deo. 1st, 1908. 
 
 (d) First Schedule, par. (5). Ante, 329 ; W. 0. E. 1908, r. 4. Post, 837, 
 Porm 53a. Post, 841. 
 
Gampensation ' 579 
 
 Any sum paid into Court shall be invested, applied or njjo^, jy 
 
 otherwise dealt with in such manner as the Court thinks fit 
 
 for the benefit of the persons entitled. The receipt of the 
 registrar shall be a sufficient discharge in respect of the 
 amount paid in. 
 
 If the sum allotted to any person is ordered to be Payment. 
 paid out or applied by periodical payments, such pay- 
 ments 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 is to be in all 
 cases at the cost and risk of the person requesting the 
 same, (a) Where the workman leaves no dependants, if so 
 agreed, the payment shall be made to his legal personal 
 representative ; or if there is no such representative, to the 
 person to whom the expenses of medical attendance and 
 burial are due. This refers to the provision of the First 
 Schedule, par. 1 (a) (iii). 
 
 The legal personal representative of the deceased work- Legal personal 
 
 T , , T representative. 
 
 man may make the application under the Act. (6) Under 
 the old rule it was necessary he should make it ; now 
 it is optional, the dependants themselves may make it, 
 though there is a legal representative. But in either case 
 the particulars filed must state on behalf of what dependants 
 the application is made, (c) In the case of a conflict 
 amongst them, those not authorizing the application must 
 be named as respondents, {d) 
 
 The money paid to the legal personal representative is compensation 
 not to be 'distributed as the workman's personal estate. cstatL? ° 
 
 {a) W. C. E. 1907, r. 56 (10). Post, 149. 
 
 (6) W. C. B. 1907, r. 4 (1). Post, 716. 
 
 (c) lb. {d) W. C. E. 1907, r. i (2). 
 
580 
 
 Workmen's Compensation Act, 1906 
 
 Chap. IX. The legal personal representative is merely the conduit to 
 convey it to the dependants, unaffected by all charges 
 whatsoever attaching to the rest of the deceased's estate, (a) 
 • It is held for distribution amongst the dependants. The 
 County Court judge may order its investment, (b) In the 
 case of the existence of dependants medical and burial 
 expenses which are then not recoverable under par. (1) (a) 
 (iii) are covered by par. (5) under the words " 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." 
 
 The right to compensation survives and passes to the 
 personal representative of the deceased dependant, (c) 
 
 There is no power to direct payment so as to exclude 
 some of the dependants or to alter from time to time the 
 distribution made in the first instance unless the dependants 
 are sui jwris, and are thus in a position to renounce their 
 rights, {d) 
 
 In Daniel v. Ocean Coal Co. (e) the Court of Appeal 
 ordered that £146 7s. of an award of £246 7s. should be 
 paid to the widow for her own use ; and the residue of £100 
 apportioned to, or for the benefit of, the sons (notwithstand- 
 ing the opposition of the widow) should be paid to the 
 registrar of the Court to be invested by him in his name in 
 the Post Office Savings Bank for the benefit of the sons ; 
 the interest arising from such investment to be from time 
 to time until further order paid to the appellant [the widow], 
 to be by her applied for the maintenance, education, or 
 benefit of her sons. 
 
 Bight to 
 
 compenBatlon 
 
 Burvivee. 
 
 No selection 
 
 amongst 
 
 dependants. 
 
 Daniel v. Ocean 
 Coal Co. 
 
 (a) Except as provided for by the Second Schedule (14). Ante, 340. 
 (6) First Schedule (5). Ante, 329. 
 
 (c) Darlington v. Roscoe & Sons (1907), 1 K. B. 219. Ante, 475. 
 
 (d) Manchester and Carlton Iron Co., Ltd., 20 T. L. E. 155. 
 (c) [1900] 2 Q. B. 250, 
 
Compensation 581 
 
 The appeal was by the widow against so much of the Chap. IX, 
 decision of the County Court judge as directed the invest- invcBtal^tof 
 ment of her children's share of the award. The employers Sfau'lwlri "° 
 appeared on the appeal, but they were not allowed their deooaaed's 
 costs, as they " had no interest in the matter, and need hot 
 have appeared in response to the notice served on them." 
 It would be unsafe from this decision to draw an universal 
 rule that an employer who makes " application for the 
 settlement of any matter by arbitration " under W. C. B. 
 1900, 10a (1), (a) with a view to see that the interests of the 
 children of a deceased workman in his employment are 
 properly secured would not get his costs. Probably he 
 would not ; and probably he would not wish to get them at 
 the expense of the dependants he was philanthropically 
 anxious to assist. Nevertheless there might arise cases 
 where the employer's intervention would entitle him to the 
 costs, and where, if he claimed them, they would be allowed. 
 Such a case, however, would be most exceptional. 
 
 Any sum directed to be invested may be invested in the Annuity. 
 purchase of an annuity through the Post Office Savings 
 Bank, or placed there at deposit in the name of the regis- 
 trar, without affecting any rights of the beneficiary (and 
 obviously not of the registrar) with respect to any other 
 post-ofSce account he may have. (6) 
 
 Money invested under the Act is not to be paid out Money inTested, 
 
 •' how paid. 
 
 except upon authority addressed to the Postmaster-General 
 by the Treasury or by the judge of the County Court, (e) 
 
 Any beneficiary may open any other account in a Post post office 
 OfRce Savings Bank without incurring any penalty, {d) < 
 
 (a) Corresponding to W. C. E. 1907, r. 10. Post, 718. 
 (6) Mrst Schedule, par. (11). Ante, 330. 
 
 (c) First Schedule, (12). Ante, 331. 
 
 (d) First Schedule, (13). Ante, 331. 
 
582 
 
 Workmen's Compensation Act, 1906 
 
 Chap. IX. 
 
 Arbitrator no 
 power to limit 
 tjtatntory ; 
 riglits. , 
 
 Weekly 
 payment not 
 assignable. 
 
 Exemptions of 
 scheme. 
 
 Synonyms, 
 
 Money on 
 deposit. 
 
 Insurance and 
 insolvency of 
 employer. 
 
 The arbitrator has no power to impose limitations on 
 the Statutory rights conferred by the schedule, (a) 
 
 A weekly payment, or the sum payable for the redemp- 
 tion of it, may not be " 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, (b) 
 
 Par. (21) provides for excepting a scheme under the 
 Workmen's Compensation Act, sec. 3, from certain pro- 
 visions of the Friendly Society's Act, 1896. (c) This we 
 considered when we were dealing with the right conferred 
 by the Act. (d) 
 
 Where reference is made to the " County Court," " Judge 
 of the County Court," "Kegistrar of the County Court," 
 "plaintiff" and "rules of Court," in the application of the 
 Act to Scotland these terms are to mean respectively 
 sheriff court, sheriff, sheriff clerk, pursuer, and act of 
 sederunt, (e) 
 
 Where money is deposited under the Workmen's 
 Compensation Act in the Post Office Savings Bank in 
 Ireland, the provisions of the County OflScers and Courts 
 (Ireland) Act, 1877, with respect to money deposited in 
 the Post OfSce Savings Bank is to apply. (/ ) 
 
 Exceptional provisions for recovering the compensation 
 awarded are made for the benefit of the workman where 
 the employer is insured and becomes bankrupt, (g) or 
 
 {a) Osborn v. Viokers, Son & Maxim, [1900] 2 Q. B. 91. 
 
 (b) Fu-st Schedule, (19). Ante, 334. 
 
 (c) Ante, 334. 
 
 (d) Ante, 427. 
 
 (e) W. 0. Act, 1906, B. (13). 
 
 (/) First Schedijle, (22). Ante, 336. 
 (g) S. 5 (1). Ante, 306. 
 
 Post, 622. 
 
Compensation ' 583' 
 
 compounds or makes an arrangement with his creditors, Chap. IX. 
 or is a company in liquidation. 
 
 The workman is to have transferred to and vest in him workmaa to 
 
 ,.,«, , 11. -T have employer's 
 
 the right of the employers as respects the liability of rights vested, 
 insurers to pay compensation money. The County Court 
 judge may order the amount due to be paid into the Post 
 Office Savings Bank in the name of the Eegistrar, and 
 may order the same to be invested or applied in accordance 
 with the First Schedule, pars. (10)— (13) (a) 
 
 The case contemplated by the section was likely to scope of the 
 occur in a shape to cause hardship to the workman very 
 rarely if at all. In most policies of insurance there is a 
 provision that notice of the claim arising from the accident 
 must be given within a certain defined number of days. If 
 this is not done the insurance company is released. If it 
 is done, the insurance company deals with the claim apart 
 from the employer, but with all the employer's rights and 
 adopting all his liabilities. 
 
 The case, however, might occur, apart from the Act, 
 where workmen having recovered judgment against an 
 insured employer, before the judgment is realized, the 
 employer becomes bankrupt. The workmen would then, 
 in the absence of any step by the insurance company, have 
 to prove against the estate. The insurance company would 
 be liable to indemnify ; and the workmen might be left to 
 prove on their judgments jpa« fassw with other creditors. 
 Thus if the estate realized 6s. in the £, the workmen would 
 only get so much, and this would be all the insurance com- 
 pany could be called on to pay. The trustee, if he chose, 
 might* pay the whole sum due, and would then be entitled 
 to recover against the insurance company. But supposing 
 him not willing to assist the workmen,- and the insurance 
 
 (a) Ante, 330. 
 
584 Worhm&n^s Compensation Act, 1906 
 
 Chap. IX. company not. willing to pay — two, in practice, most im- 
 probable suppositions — there would at least be some expense 
 and trouble to compel him as an oflScer of the Court " to 
 do the fullest equity." (a) 
 
 Accident If an accidcnt happens after the making of a receiving 
 
 occurring after ^ ' - ^ ^ 
 
 receiving order, order, and while the employer's business is being carried 
 on for the creditors by the oflScial receiver or the trustee, 
 he is liable as employer. (6) 
 
 New remedy. The section gives the workmen under the W. 0. Act, 
 
 1906, a speedy and direct remedy against the insurance 
 money by making their claim a first charge upon it. The 
 charge makes the workmen secured creditors, and the 
 procedure gives them a summary way of enforcing their 
 charge. 
 
 Where 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, (c) 
 
 The amount of compensation payable under the W. C. 
 Act, 1906, to the extent of £100 shall be a preferential debt 
 under the Preferential Payments in Bankruptcy Act, 1888,(cZ) 
 where the liability to pay accrued before the date of the 
 receiving order in the case of a bankrupt employer, or 
 the date of the commencement of the winding up, where 
 the employer is a company in liquidation, but not where 
 it is wound up voluntarily for the purposes of reconstruction 
 
 (a) Cp. Ex 'parte James, In re Condon, L. B. 9 Ch. 609; Ex parte 
 Simmonds, In re Carnao, 16 Q. B. D. 308 ; In re Tyler, Ex parte the 
 Official Beoeiver, [1907] 1 K. B. 865; In re Hall, j;a; pa/rte the 'Official 
 Beoeiver, [1907] 1 K. B. 875. 
 
 (b) Burt, Boulton & Hayward v. Bull, [1895] 1 Q. B. 276. 
 
 (c) S. 5 (2). Ante, 306. 
 
 (d) 51 & 52 Vict. c. 62 ; for Ireland 52 & 53 Vict. c. 60, s. 4 ; Preferential 
 Payments in Bankruptcy Amendment Act, 1897 (60 & 61 Vict. o. 19). 
 
Compensation 585 
 
 or of amalgamation with another company (a) ; and where Chap. IX. 
 the compensation is a weekly payment the amount due ' 
 in respect thereof shall be taken to be the amount of the 
 lump sum for which the weekly payment could be re- 
 deemed if the employer made application for that purpose. (6) 
 
 In the case of the winding up of a company within the stannaries Act. 
 Stannaries Act, 1887, (c) the priority is that conferred on 
 wages of a miner by sec. 9 of that Act. (d) Where the 
 bankrupt or the company being wound up has entered 
 into a contract with insurers the priorities created by the 
 section shall not apply, (e) This appears to be irrespective 
 of whether the bankrupt is fully insured or not. In the 
 latter event consequently the workman has no priorities. 
 
 By sec. 5 the rights of the employer are transferred to statutory 
 and vest in the workman. There is a statutory subrogation 
 of the workmen to the employer's rights. (/) No larger right 
 is given against the insurance company than the employer 
 has.. Thus, if in the circumstances, eliminating the bank- 
 ruptcy, the employers have no claim against the insurers, 
 the workman has none. Again, where the policy provides 
 for the payments continuing only so long as the premium 
 continues to be paid, if the employer discontinues the pay- 
 ment the liability of the insurance company ceases on the 
 instant. So, too, the bankruptcy of the employer in such 
 a case determines the liability of the insurance company to 
 make further payments, {g) 
 
 Proceedings under this section are not a part of an 
 
 (a) S. 5 (6). 
 
 (6) S. 5 (3). Ante, 307. (c) 50 & 51 Vict, o. 43. 
 
 (d) S. 5 (4). (e) S. 5 (5). 
 
 . (/) Kniveton v. Northern Employers Mutual Indemnity Co., Ltd., 
 [1902] 1 K. B. 880. 
 
 {g) Morris v. Northern Employers Mutual Indemnity Co., Ltd., [1902] 
 2 K. B. 165. 
 
 B.E.L. 2 Q 
 
586 
 
 Workmen's Compensation Act, 1906 
 
 the Act, 
 
 Chap. IX. arbitration under the Act. They are a matter altogether 
 Not a^ subsequent to the arbitration and award. Consequently an 
 
 irbitration under ^ppg^j lies, not to the Court of Appeal under the Second 
 Schedule, par. (4), but to a Divisional Court (a) under the 
 County Courts Act, 1888, sec. 120, (b) which confers a right 
 of appeal in the case of " any action or matter " as there 
 limited. Prima facie, then, a Divisional Court would seem 
 to have jurisdiction to entertain an appeal with regard to 
 " any matter " with which a County Court judge has dealt 
 in the exercise of his jurisdiction, and there is nothing in 
 the Workmen's Compensation Act, 1906, which takes away 
 a right of appeal. 
 
 It may also here be mentioned that it has been decided 
 that there is an appeal to a Divisional Court, from the 
 refusal of a County Court judge to direct a review of taxation 
 of the costs of an application to review a weekly payment 
 under the First Schedule, par. (12), of the W. C. Act, 1897. (e) 
 
 The procedure is regulated by r. 35 of the Workmen's 
 Compensation Eules, 1907. (d) It is to be noted that 
 power under the section is only given in the event of the 
 employer becoming bankrupt, or making a composition or 
 arrangement with his creditors, or a company commenced to 
 be wound up. 
 
 A workman who claiming compensation under sec. 5 is 
 unable to ascertain whether the Employer is insured may 
 apply to the County Court ; the application may be supported 
 by afiSdavit for an order for the examination of the employer ; 
 and if the Court sees fit to make an order, the provisions of 
 
 (a) Leech v. Life & Health Assurance Association, [1901] 1 K. B. 707 ; 
 Morris v. Northern Employers Mutual Indemnity Co., Ltd., [1902] 2 
 X, B. 165. 
 
 (b) 51 & 52 Viot. c. 43. 
 
 (c) Rigby & Go. v. Cox, [1904] 1 K. B. 358 ; 2 K. B. 208. The correspond-^ 
 ing par. is (12) of the First Schedule of the Act, 1906. 
 
 (d) Pos^ 733. 
 
 Procedure as to 
 inBurers under 
 sec. 6. 
 
 "Workman's 
 application. 
 
Compensation 587 
 
 Order xxv. rr. 71, 72 of the County Court Eules, 1903, shall Chap. IX. 
 apply, as if the employer were a debtor liable under a 
 judgment or order, (a) 
 
 The provisions of the Act as to arbitration are to apply 
 to any question as to the liability of the insurers or the 
 amount of their liability. (6) 
 ■ Two cases unreported came before the Court of Appeal Rigua of insur. 
 
 auce Companies. 
 
 in the spring of 1902, where a County Court judge had 
 conceived the notion that an insurance company, to whom 
 the rights and liabilities of the employer had been 
 assigned, was not entitled to be heard on the arbitration. 
 Accordingly, on it appearing on the correspondence that 
 the case was defended by the insurance company, he refused 
 to allow counsel to address him. So soon as the case was 
 opened the Master of the KoUs, addressing the King's 
 Counsel who appeared for the respondent, asked him how 
 he proposed to maintain the award, as it was clear that the 
 judge had gone wrong. The counsel said he felt he could 
 not urge anything effective in support of the ruling ; upon 
 which judgment was given for the appellants. On this, 
 the second case, Kelson v. Maudslay, Son & Field, was 
 allowed to follow the fate of its predecessor, (e) 
 
 A policy of insurance covering the liability of an condition not 
 
 ■*■ •' Imown to tha 
 
 employer to compensate his workmen for injuries by employer. 
 accident in the course of their employment was negotiated, 
 and the representative of a firm of insurance brokers pro- 
 cured the signature of the employer to a proposal for the 
 same, which was to the agent of the Life and Health 
 Assurance Association, who signed a form of receipt or 
 covering note, which stated, " cover to hold good from this 
 date." The covering note contained no conditions. While 
 
 (a) W. C. B. 1907, r. 35 (2). (6) W. C. B., 1907, r. 35 (3). 
 
 (c) Ex relatione. 
 
588 
 
 WorJcmen's Oompensation Act, 1906 
 
 Chap. IX. 
 
 Power, how 
 exercised. 
 
 Lord Caitns's 
 proposition. 
 
 the covering note held good and no policy was signed a 
 workman of the employer was injured ; from the effects he 
 subsequently died. The day after the injury the policy 
 was signed. It contained a condition that the employer 
 should give immediate notice of any accident causing injury 
 to a workman. There was a further condition that the 
 observance and performance by the employer of the times 
 and terms set out in the policy so far as they contained 
 anything to be done by the employer were the essence of 
 the contract. The Court of Appeal held (Fletcher Moul- 
 ton, L. J., dissenting) that in the absence of evidence that the 
 employer either knew of, or had the opportunity of knowing 
 of the existence of the condition at the date of the accident, 
 the condition was one with which it was impossible to 
 comply, and the true inference was that the insurer never 
 imposed the condition on the employer at the time of the 
 accident, (a) 
 
 The judge is to be the judge either of the district in 
 which all the parties concerned reside, or if they reside in 
 different districts the district in which the accident occurred, 
 or of some other to which the matter has been transferred. (&) 
 
 The County Court judge is compelled to exercise this 
 power in a proper case; though he may find the facts 
 necessary to be proved as the foundation for the exercise of 
 his power not proved or disproved. 
 
 The legal proposition relevant is thus stated : — 
 
 " Where a power is deposited with a public ofiBcer for the 
 purpose of being used for the benefit of persons who are 
 specifically pointed out, and with regard to whom a defini- 
 tion is supplied by the Legislature of the conditions upon 
 
 (o) In re an arbitration between Coleman's Depositories and the Life 
 and Health Assurance Association, [1907] 2 K. B. 798. 
 (6) Second Schedule, (11). Ante, 339. 
 
Gompensation 589 
 
 which they are entitled to call for its exercise, that power chap. IX. 
 ought to be exercised, and the Court will require it to l>e j^^j,^^j^^^jjj,j 
 exercised ; " (a) or as it was otherwise expressed — " Enabling p"p™'"™- 
 words are construed as compulsory whenever the object of 
 the power is to effectuate a legal right." (6) 
 
 In Alderman Backwell's case (c) " the Lord Keeper Backweii's case . 
 declared, though the words in the Act of Parliament were 
 that the Chancellor may grant a commission of bankrupt, 
 yet that 'may was in effect must, and it had been so resolved 
 by all the judges, and the granting of a commission was not 
 a matter discretionary in him, but that he was bound to 
 do it. (d) 
 
 The workman's right is dependent on two conditions : — conditions of 
 
 workman's right 
 
 (1) The employer must be entitled to a sum from 
 
 insurers. 
 
 (2) The employer must be — 
 
 (a) Bankrupt; or 
 
 (i) Making a composition, or arrangement with his 
 
 creditors; or 
 (e) If a company, winding up. 
 
 The fulfilling of these conditions transfers or vests the 
 rights of the employers against the insurers in the workman. 
 
 A policy insuring the employer against his liability to Employer's 
 his workmen, is not a " policy of insurance against accident " ?4*^4^„t.. 
 within the definition of sec. 98 (1) of the Stamp Act, 1891 (e) ^^J\^, =^ 
 
 (a) Per Earl Cairns, L.O., Julius v. Bishop of Oxford, 5 App. Cas. 214 
 at 225. 
 
 (2)) Per Lord Blackburn, I. c. at 244. 
 
 (c) 1 Vem. 152. 
 
 (d) The word in the particular Statute was not " may," though 
 equivalent to it. See per Lord Blackburn, 5 App. Gas. at 242. 
 
 (e) 54 & 55 Vict. c. 39. 
 
insui'ance. 
 
 590 Workmen's Compensation Act, 1906 
 
 Chap. IX. — in which case it would only require a penny stamp— but 
 is a contract of indemnity, and so a deed requiring a 10s. 
 stamp, (a) . 
 
 If not under seal it is an agreement, and is liable to 
 a duty of 6d. 
 
 Bankraptcy The casc of bankruptcy of the employer where there is 
 
 where no x .^ x ./ 
 
 no insurance may be noted. 
 
 Three forms of this may occur : 
 
 (1) Where there is a claim by dependants for a lump 
 sum; 
 
 (2) Where there is a claim by the injured man for 
 future instalments of an award of weekly pay- 
 ments ; 
 
 (3) Where there is a claim by the injured man for 
 a redemption payment. 
 
 (1) This may be either a sum ascertained before the 
 bankruptcy, or to be ascertained at the moment of bank- 
 ruptcy. 
 
 In the former case there is the right to preference up to 
 £100 given by sec. 5 (3) ; for the definition of workman 
 covers " dependants or other person to whom or for whose 
 benefit compensation is payable ; " (6) there is, further, the 
 ordinary right of proof against the bankrupt's estate. 
 
 In the latter the question arises whether the claim for 
 compensation is a " demand in the nature of unliquidated 
 damages " (c) or not. The payment seems rather to be a 
 statutory liability to pay an ascertainable amount arising on 
 a contingency, which contingency has happened. The sum 
 
 (a) Lancashire Insurance Co. v. Commissioners of Inland Eevenue. 
 [1899] 1 Q. B. 353. xvovouub, 
 
 (b) S. 13. 
 
 (c) Leech v. Life and Health Association, [1901] 1 K. B. 707. 
 
Compensation 591 
 
 payable can be exactly ascertained by purely arithmetical Chap. IX. 
 processes — except in the case of partial dependants. Even ' 
 
 there the maximum liability is fixed. The liability has 
 nothing in it of the nature of damages ; for it is based on 
 no tortious act, and is an incident engrafted on the contract 
 of employment and becoming operative without any fault of 
 either employer or workmen. 
 
 (2) The liability to pay weekly payments is a future 
 debt, subject to a contingency. The value is accordingly to 
 be determined by the Court, (a) 
 
 (3) The claim in respect of a redemption payment seems 
 to differ nothing from that of lump sum. It is an ordinary 
 debt, with no special procedure for enforcement, and dealt 
 with under sec. 5 (3) and under the ordinary Bankruptcy 
 law. 
 
 In the case of the employer being a company in liquida- 
 tion, the winding-up procedure has to be taken into account 
 instead of the Bankruptcy law. 
 
 Any sum awarded as compensation must be paid on the Persons entitled 
 
 ■*■ ■*■ to receive 
 
 receipt of the person to whom it is payable under any compensation. 
 agreement or award. (6) 
 
 This person may be either — 
 
 (1) The workman himself, in the case of weekly 
 
 payments ; (e) 
 
 (2) The registrar of the County Court ; {d) 
 
 (3) The legal personal representative ; (e) 
 
 (a) 46 & 47 Viot. o. 52, see. 37 (1). 
 
 (2)) Second Schedule, par. (14), ante, 340. 
 
 (c) First Schedule, par. (1) (b), cmte, 326. 
 
 (d) First Schedule, par. (5), ante, 329 ; and s. 13, " Workman," 
 ante, 320. 
 
 (e) First Schedule, par. (1) (a) (i), amte, 325 ; and s. 13, " Workman,'' 
 ante, 320. 
 
592 Workmen's Compensation Act, 1906 
 
 Chap. IX. (4) The dependants ; (a) 
 
 (5) The dependants in part dependent ; (6) 
 
 (6) The medical attendant and the undertaker ; (c) or 
 
 the persons who have, in the case of the death of 
 the workman, made themselves responsible for 
 these expenses ; (d) 
 
 (7) Any person authorized under the award, (e) 
 
 Infant's receipt. The words of the scctiou are general enough to cover 
 the payment on the receipt of an infant, if a sum has been 
 awarded as compensation to him. In the case of an infant 
 dependant the powers of the First Schedule, par. (7), would 
 most likely be invoked. On application by the person liable 
 to make a weekly payment, or by or on behalf of the person 
 entitled to such payment, that such payment be paid during 
 the disability into Court, the County Court judge may make 
 an order to that end. (/) There is no intention indicated in 
 the Act to validate the receipt of a minor, possibly a child. 
 The minor by law is not sui juris ,- the Act does not make 
 him so, and the system of the common law, where not inter- 
 fered with, has to be read with the Act. 
 
 Where a weekly payment is payable under the Act to 
 a person under legal disability a County Court may order 
 that the weekly payment be paid during disability into 
 Court, (g) 
 
 [a) First Schedule, par. (1) (a) (i). Ante, 325. 
 (6) First Schedule, par. (1) (a) (ii). 
 
 (c) Mrst Schedule, par. (5). 
 
 (d) First Schedule, par. (5), ante, 329. 
 
 (e) Second Schedule, par. (9), ante, 837 ; Daniel v. Ocean Coal Co., 
 [1900] 2 Q. B. 250. 
 
 (/) W. C. E., 1907, r. 57. Post, 749. Form 54. Post, 824. See 
 Ledward and Hassells, 2 K. & J. 370 ; Ex parte Brocklebank, In re 
 Brooklebank, 6 Oh. D. 358. Position of infant, Stephens v. Dudbridge 
 Ironworks Co., Ltd., [1904] 2 K. B. 225 ; Robertson v. Henderson, 6 P. 770. 
 
 {g) First Schedule, par. (7), and W. C. E. 1907, r. 57. 
 
Oompensation 593 
 
 In the case of neglect of children on the part of a Chap. IX. 
 widow, or of change of circumstances, or " for any other 
 sufficient cause," an order as to the apportionment amongst 
 the dependants of any sum sued as compensation or as to 
 the investment of any such sum may be varied, and the 
 Court may make such varied order as the Court may think 
 just, (a) 
 
 In any case coming under the provisions of the Act seamen. 
 applicable to seamen, (6) the weekly payment shall not be 
 payable in respect of the period during which the owner of 
 the ship is liable to defray the expenses of the maintenance 
 of the injured man. 
 
 The law on this point is now contained in sec. 34 of the 
 Merchant Shipping Act, 1906, (c) whereby the shipowner is 
 at the expense of maintenance and medical attendance aiid 
 the accessories for a sick sailor (whose illness is not caused 
 by his misbehaviour), tUl he is cured or dies, or is returned 
 to a proper return port, as well as for his conveyance thither, 
 and this without any deduction on that account from his 
 wages. 
 
 If the injured person is removed from the ship for the 
 purpose of preventing infection, or otherwise for ,the con- 
 venience of the ship, and subsequently returns, all the 
 intervening expenses fall on the owner of the ship. 
 Notwithstanding the provisions about limitation of liability 
 in the Merchant Shipping Act, 1894, (d) any sum payable by 
 way of compensation under the Workmen's Compensation 
 Act, 1906, is to be paid in full, unless it is a sum recoverable 
 by way of indemnity under sec. 6 (2) (e). 
 
 {a) First Sohedtile, par. (9). 
 (5) S. 7 (o). Ante, 308. 
 
 (c) 6 Edw. VII. c. 48. 
 
 (d) 67 & 58 Viot. o. 60, s. 503. 
 
 (e) S. 7 (1) f. 
 
CHAPTER X 
 
 Pbooeduee 
 
 Where any question arises in any proceedings under the scope of Act. 
 Workman's Compensation Acts as to — 
 
 (1) Liability to pay compensation; or whether the 
 
 person injured is a workman to whom the Act 
 applies ; 
 
 (2) The amount of compensation ; 
 
 (3) The duration of compensation payments. If the 
 difference is not settled by agreement it is to be settled 
 by arbitration as provided for by the Act. (a) 
 
 To bring the procedure of the Act into operation, it Must be a 
 is imperative that there must be some definite question in dispute, 
 in dispute. 
 
 " It is thus," says Collins, M,E., in Field v. Longden & Field n.Longden. 
 Sons, (6) " by the terms of the sub-sec. made a condition 
 precedent to the right to proceed to arbitration, and to 
 the arbitrator's jurisdiction, that a question should have 
 arisen; . . . and, again, assuming that such a question 
 has arisen, there is another condition by which the juris- 
 diction may or may not be ousted, namely, that the question 
 has not been settled by agreement. ... I think that, upon 
 the admitted facts of this case, no question ever did arise ; 
 because, on the workman sustaining the injury, the em- 
 plbyers commenced and continued to pay to him weekly . 
 
 (o) S. 1, sub-s. (3), ante, 300. (6) [1902] 1 K. B. 17 at 52. 
 
596 
 
 Workmen's Compensation Act, 1906 
 
 Proceedings. 
 
 Chap. X. all that he could possibly be entitled to by way of com- 
 pensation under the Act. They neyer disputed his right 
 to such compensation, and he, of course, received it without 
 objection." The learned M.K. subsequently shows (a) how 
 the employers made "an express offer of everything that 
 the workman could possibly get by arbitration," and stated 
 that " they are quite prepared to have a memorandum 
 filed, but call attention to the fact that an effective 
 agreement to pay compensation according to the Act is 
 in force." He thus concludes— (6) "I think that the 
 respondent had no right to go to arbitration, because no 
 question existed between the parties when the request for 
 arbitration was filed. I cannot agree with the contention 
 that the request for arbitration in itself creates a question, 
 because the section in terms provides that a question must 
 have arisen as to the liability to pay compensation, or as 
 to the amount or duration thereof, before the provisions 
 as to arbitration come into play." 
 
 Memorandum 
 ordered to be 
 recorded. dccisioU tO 
 
 What is a 
 proceeding. 
 
 Jones V. Great Central Ey. Co. (c) is a simultaneous 
 the same effect. In this case, however, the 
 employers presented a memorandum of agreement under 
 the Second Schedule, par, (8), to the applicant, who refused 
 to sign it. They then sent it to the registrar, who refused 
 to record it. The Court of Appeal ordered the registrar to 
 record it. 
 
 There has been acute difference of opinion as to what 
 is a proceeding (d) under the Act. 
 
 The considerations bearing on the determination of this 
 in the abstract may be illustrated by Ex parte Johnson, 
 
 (a) L. c. at 53. (6) L. c. at 54. 
 
 (c) 18 T. L. R. 66 ; 4 W. C. 0. 23. 
 
 (d) Cp. " Stroud Judicial Dictionary," sub voce. 
 
PrQced^re 697 
 
 In re Johnson, (a) where Cotton, L.J., sayfe : " The question Chap. X. 
 we have to consider is whether a debtor's summons is a p„ceeaingg. 
 ' proceeding in bankruptcy.' I think a debtor's summons, Proceeding tn 
 being issued for the purpose of founding upon it an adjudi- 
 cation of hajihruptcy, is certainly a 'proceeding in 
 bankruptcy,' " 
 
 Again, in Spincer v. Watts, (6) the question was whether spincer «. watts. 
 taking out money paid into Court and paying in on a 
 counterclaim was "any other proceeding ^n the action." 
 Lindley, L.J., says : " The expression has light thrown 
 on it by the context, and 'any other proceeding in the 
 action ' means any proceeding with a view to continuing the 
 action." 
 
 Thus it would seem by analogy that a " proceeding 
 under this Act " indicates any step taken for the purpose 
 of rendering effectual the remedies provided by the Act. 
 The normal foundation of proceedings under the Act is 
 the giving notice under sec. 2 (1), (c) and the first pro- 
 ceeding is the filing with the registrar a request for 
 arbitration, {d) The applicant's request for arbitration 
 "shall be deemed to be a summons with particulars 
 annexed." (e) 
 
 Notice is not itself a proceeding, nor is a claim ; (/) ^"""^^""g''' 
 they are conditions precedent to proceedings. 
 
 In the House of Lords in Powell v. Main Colliery Co., {g) Proceeding 
 the ordinary meaning of the term "proceedings," as it is 
 understood to mean some form of known legal procedure, 
 
 (a) 53 L. J. Ch. 309 ; also reported 25 Ch. D. 112 at 115 in slightly 
 difEering words. 
 
 (6) 58 L. J. Q. B. 383. Cp. Nunn v. Tyson, [1901] 2 K. B. 487, as to a 
 "proceeding instituted" within the meaning of s. 2 of the Married 
 Women's Property Act, 1893 (56 & 57 Viot. o. 63). 
 
 (c) AnU, 301. (d) W. 0. B. 1907, r. 8. Post, 718. 
 
 (e) W. C. R. 1907, r. 27 (1). Post, 729. 
 
 (/) S. 2 (1). Ante, 301. (g) [1900] A. C. 366. 
 
598 Worhmen's Compensation Act, 1906 
 
 Chap. X. ^^s distinguished from its use in the Workman's Com- 
 
 pensation Act. "The word proceedings," says the Lord 
 
 gs. Clianeellor, {a) "is used in a sense different from that which 
 would describe legal procedure ordinarily." 
 
 Lord Brampton's Lord Bramptou interprets sec. 2 (1) and its dependent 
 clauses in popular language thus : (6) " If you desire com- 
 pensation, give notice of your injury as speedily as you can, 
 and send in your claim within six months ; try to agree 
 with your employer, but if you fail to do so, you may then 
 enforce your right to compensation by arbitration, but you 
 will not be entitled to an arbitration or to insist upon com- 
 pensation unless you have given your notice and claim as 
 the Statute directs you to do." 
 
 Lord Haisbnry'3. Lord Halsbury explaius the intent of the Act and its 
 interpretation thus: "It appears to me that the statute 
 deliberately and designedly avoided anything like tech- 
 nology. I should judge from the language and the mode 
 in which the statute has been enacted that it contemplated 
 what would be a horror to the mind of a lawyer, namely, 
 that there should not be any lawyers employed at all, and 
 that the man who was injured should be able to go him- 
 self and say, ' I claim so much,' and that then he should go 
 to the County Court judge and say, 'Now please to hear 
 this case because my employer will not give me what I 
 have claimed.' It appears to me that that is the meaning 
 and construction of the whole statute, and that i? what the 
 Legislature intended, and that is the reason why it avoided 
 any technical phrases. It strikes one at once that, if any- 
 thing which to a lawyer's mind would -be in the nature of 
 a technical application or a technical commencement of the 
 litigation was intended, the Legislature was competent and 
 had sufficient knowledge to say what it meant." 
 
 (a). L. c. at 370. , , (6) i, c. at 381, 
 
Procedure 599 
 
 The latitude allowed is well illustrated by Lowe v. Myers Chap. X. 
 & Sons, (a) By their answer to an application for com- 
 
 Proceedings. 
 
 pensation the respondents said they had paid to the applicant 
 a sum which he had accepted in satisfaction of all claims. 
 They also said that no claim for compensation had been 
 made within six weeks of the accident. The County Court 
 judge dismissed the claim on this ground ; but his decision 
 was reversed by the Court of Appeal on the ground that the 
 statement in the answer as to payment of compensation 
 afforded some evidence of a claim having been made which 
 the County Court judge ought to entertain. 
 
 Proceedings are not normally maintainable unless : conditions 
 
 precedent to 
 
 (1) Notice of the accident has been given— proctdtags! 
 
 (a) As soon as practicable after the happening of the 
 
 accident ; 
 
 (b) Before the workman has left the employment in 
 
 which he was injured ; and 
 
 (2) A claim for compensation has been made — 
 
 (A) Within six months of injury ; or 
 
 (B) In case of death, within six months thereof. 
 
 The want of notice, or any defect or inaccuracy therein, 
 is not to be a bar to the maintenance of the proceedings — 
 
 (1) If the employer is not prejudiced by the want, defect 
 or inaccuracy ; or would not be if a notice or an amended 
 notice were then given and the hearing postponed. 
 
 (2) The want, defect or inaccuracy was occasioned by 
 mistake or absence from the United Kingdom or other 
 reasonable cause. 
 
 Notice of action is clearly one requisite. The claim for 
 compensation is another. It was agitated whether claim for 
 
 (a) [1906] 2 K. B. 265. 
 
600 Workmen's Compensation Act, 1906 
 
 Chap. X. compensation was identical with the " request for arbitration " 
 — the commencement of proceedings in the tribunal which is 
 
 Proceedings. 
 
 to decide the case. 
 Claim for com- In SBC. 1 (3) the word " proceedings " means claim for 
 
 pensation ■*■ ° 
 
 necessary. Compensation and refusal, (a) This claim for compensation 
 
 and refusal are a necessary preliminary to the commencement 
 of proceedings before an arbitrator. " It is to be borne in 
 mind," says Eomer, L. J., (b) " that before arbitration can be 
 resorted to at all, either before the special committee, or 
 before any other arbitrator, or before the County Court 
 judge as an arbitrator, there must be a question arising 
 between the parties — there must be a difference. How can 
 there be a difference which will entitle either party to go to 
 the committee or to the arbitrator unless a claim has been 
 made which is challenged, which is denied, and which is 
 refused? Then and only then does aquestion arise." 
 
 We may then conclude that the preliminaries to arbitra- 
 tion are : — 
 
 (1) Notice of accident ; 
 
 (2) Claim for compensation ; 
 
 (3) Eequest for arbitration. 
 
 (1) Notice of Accident. 
 
 The notice of accident must give — 
 
 (1) the name and address of the injured person ; 
 
 (2) the cause of the injury, stated in ordinary language ; 
 
 (3) the date of the injury. 
 
 It must be served on the employer, either by delivering 
 the same to him or at his residence or place of business ; it 
 
 (a) Per Eomer, L. J., Powell v. Main Colliery Co., [1900] 2 Q. B. at 161. 
 Lord Davey— [1900] A. 0. at 378— adopts Bomer, L.J.'s reasons • Pase v 
 Burtwell, [1908] 2 K. B. 758. > 6 • 
 
 (6) L. c. at 158. 
 
Procedure 601 
 
 may also be served by post at the employer's last known Ohap. X. 
 place of residence or place of business ; if the employer is jroticTrf" 
 a body of persons then at any of their offices, (o) accident. 
 
 Sec. 2 of the Workmen's Compensation Act, 1897, differs compared with 
 
 '•1-1-11 X • 1 'T the correspond- 
 
 from the corresponding sections in the Employers Liability ing sections of 
 
 r o r J J the Employers 
 
 Act, 1880, as follows :— ]:^T''^'*' 
 
 (1) Notice under this section must be given " as soon 
 
 as practicable after the happening [of the accident] 
 and before the workman has voluntarily left the 
 employment in which he was injured." 
 By sec. 4 of the Employers Liability Act, 1880, notice 
 must be given within six weeks from the occurrence 
 of the accident. 
 
 (2) Under this section a claim for compensation in case 
 
 of death must be sent in within six months from 
 the time of death. 
 By sec. 4 of the Employers Liability Act, 1880, 
 twelve months are allowed for the bringing of an 
 action. 
 
 (3) Under this section want of notice or any defect or 
 
 inaccuracy in such notice is not to be a bar to the 
 maintenance of " proceedings " if in any case it is 
 found in the proceedings that the employer is not or 
 would not, if a notice or an amended notice were 
 then given and the hearing postponed, be pre- 
 judiced, or if the want, defect, or inaccuracy of 
 notice was occasioned by mistake, absence from the 
 United Kingdom, or other reasonable cause. 
 By sec. 4 of the Employers Liability Act, 1880, in 
 case of death only, want of notice is not to be a bar 
 if the judge is of opinion there was reasonable 
 
 (a) S. 2 (2), (3), (4), (5). Ante, 302. Op. The Interpretation Act, 1889 
 (52 & 53 Viot. 0. 63), s. 26. 
 
 B.E.L. 2 B 
 
Notice of 
 accident. 
 
 602 Workmen's Compensation Act, 1906 
 
 Chap. X. excuse for such want of notice ; in all other cases 
 
 want of notice is a bar to the action. 
 
 (4) Under this section defect or inaccuracy of notice is 
 condoned in the same circumstances and to the 
 same extent as want of notice. 
 
 By sec. 7 of the Employers Liability Act, 1880, 
 defect or inaccuracy is excused unless the judge 
 shall be of opinion that the defendant is prejudiced 
 thereby, and that the defect or inaccuracy was for 
 the purpose of misleading. 
 
 (5) This section comprehends both notice of the accident 
 and claim for compensation, two things that may 
 be distinct. Under the Employers Liability Act, 
 1880 there is but one notice and the action has to 
 be commenced within six months, or in case of 
 death within twelve months. Bequest for arbitra- 
 tion in this Act stands in the place of the " action " 
 under the Employers Liability Act, 1880. 
 
 Save in the particulars indicated, sec. 2 of the Workmen's 
 Compensation Act, 1906, is identical with sees. 4 and 7 of 
 the Employers Liability Act, 1880, under which the principal 
 matters are treated, (a) 
 
 It may be noted that when the requirements of sec. 2 are 
 complied with " proceedings " are maintainable. In the case 
 of the Employers Liability Act an action may be brought. 
 
 The Notice of Accidents Acts, 1894 (6) and 1906, will 
 1894 and 1906. probably have a considerable bearing on the working of the 
 provisions of the notice clauses of the Workmen's Com- 
 pensation Act, 1906. 
 
 By these Acts the employer is bound as soon as possible, 
 
 (o) Ante, 259. 
 
 (6) 67 & 58 Vict. o. 28. The Factory and Workshop Act, 1901 (1 Edw. 
 VII. c. 22), Part I. (iii.) Accidents, is repealed by the Sohed. 6 Edw. VII. 
 c. 53, but s. 4 of that Act is substituted. 
 
 Accidents Acts, 
 
 Effect of. 
 
Procedure 603 
 
 and in case of an accident not resulting in death, not later Chap. X. 
 than six days after the occurrence of the accident, to send jj^uc^^ 
 to the Board of Trade notice of any accident occurring in »™'''™'- 
 any of the scheduled employments which causes to any 
 person employed therein either loss of life or such bodily 
 injury as to prevent him on any of the three working days ■ 
 next after the occurrence of the accident from being employed 
 for five hours at his ordinary work. 
 
 The employments specified in the Schedule are : — 
 
 (1) The construction, use, working or repair of any Employments 
 
 ^ ' 1 1 within the Acts. 
 
 railway, tram-road, tramway, gaswork, canal, bridge, 
 tunnel, harbour, port, pier, quay, or other work 
 authorized by any local or personal Act of Parlia- 
 ment. 
 
 (2) Construction or repair by means of a scaffolding of 
 any building which exceeds thirty feet in height, 
 or use or working of any such building in which 
 more than twenty persons, not being domestic 
 servants, are employed for wages. 
 
 (3) Use or working of any traction engine, or other 
 
 engine or machine worked by steam in the open 
 air. 
 
 (4) These may be extended by order of the Secretary 
 
 of State "in every case of any special class of 
 explosion, fire, collapse of buildings, accidents to 
 machinery or plant, or other occurrences in a mine 
 or quarry, or in a factory or workshop, including 
 any place which for the purpose of the provisions 
 of the Factory and Workshop Act, 1901, with 
 respect to accidents is a factory or a workshop, (a) 
 
 Where the employer is bound himself to give notice of 
 (a) 6 Edw. VII. 0. 53, s. 5 (i). 
 
604 Workmen's Compensation Act, 1906 
 
 Chap. X. accident within six days, and is penally liable if he neglects 
 NoticTrf" to do so, it will very rarely happen that he will be able to 
 show that he is " prejudiced " in not receiving notice within 
 six months. 
 
 accident. 
 
 Why notice A noticc shouM be given in case of injury within six 
 
 ^ weeks of the time of accident in order to save the workman's 
 
 right of claiming under the Employers Liability Act, 1880, 
 
 if he should be so disposed, instead of under the Workmen's 
 
 Compensation Act, 1906. 
 
 Service by post. Sec. 26 of the Interpretation Act, 1889, (a) applies to 
 service by post under the Workmen's Compensation Act, 
 1906, by which service shall be deemed to be effected by 
 properly addressing, prepaying and posting a letter con- 
 taining 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. 
 
 Notice of The method of giving notice of the time and place of an 
 
 arbitration under the Act is prescribed by rule 14; the 
 service is regulated by rule 15. (6) 
 
 Where no special provision is made by the Workmen's 
 Compensation Eules for the service of any document or 
 notice, then service is to be made in the manner provided 
 by sub-sees. 3 and 4 of sec. 2 of the Act with reference to 
 service of notice in respect of an injury, and the provisions 
 of County Court E., 1903, Order LIV. r. 2, shall apply to the 
 service of any such proceeding, document or notice, (e) 
 
 "Withau NichoUs V. Hall (d) turned on the construction of a 
 
 practicable 
 
 speed." provision that notice should be given " with all practicable 
 
 speed " ; and it was held that knowledge of the facts was an 
 essential ingredient in the case. 
 
 {a) 52 & 53 Vict. o. 63, (6) W. 0. E. 1907. Post, 720. 
 
 (c) W. 0. B. 1907, r. 77 (4). Post, 762. (d) L. E. 8 0. P. 322. 
 
Procedure 605 
 
 In Cooper v. Wool ley (a) the obligation was "to con- Chap. X. 
 sume as far as possible the smoke," &c. ; and it was held jfoticerf" 
 that the words meant " as far as possible consistent with *°'''''™'- 
 
 ■^ « Ab far as 
 
 carrying on the trade in an ordinary manner and with a p^iwe." 
 careful use and management of a properly constructed 
 furnace." 
 
 The question of the onus of proving that the respondents on«s of proving 
 were not prejudiced in their defence was tiealt with in the arenot^''"" 
 
 prE^udiced. 
 
 Scotch case of Shearer v. Miller & Sons, (b) It was argued shearer ». 
 that being a matter primarily within the knowledge of the 
 respondent he should in the first instance give some 
 evidence that he was injured beyond the mere fact of the 
 non-receipt of notice ; but the onus was held to be on the 
 applicant ; though it is not necessary for the discharge of 
 this that separate evidence should be given : the proof may 
 be as a consequence from other facts. For example, where 
 a large number of persons have admittedly been injured, 
 but claims have only been sent in by some, the mere state- 
 ment would probably displace the onus, and the employer 
 would have to satisfy the arbitrator that he had been 
 prejudiced. "In order to get out of the vice of want of 
 notice of accident the workman is by sec. 2, sub-sec. 1 of the 
 Act bound to show that the employer is not thereby 
 prejudiced." (c) On the other hand, delay does not 
 necessarily prejudice within the section, and an arbitrator 
 is not justified on proof of delay only in refusing to hear 
 the case. Opportunity must be given to prove that the 
 delay was not in fact prejudicial, (d) 
 
 Two Scotch cases have been decided on this point. In Banwae «. 
 
 ^ Alloa Coal Co. 
 
 Eankine v. Alloa Coal Co. (e) the applicant did not give 
 
 {a) L. R. 2 Ex. 88. (6) 2 F. 114. 
 
 (c) Per Collins, L.J. Osborn v. Viokers, Son & Maxim, 69 L. J. Q. B. 
 at 607. This passage is not to be found in the Law Beports' report. 
 
 {d) McLean v. Oarse & Holmes, 1 F. 878. (e) 6 P. 375. 
 
606 
 
 Workmen's Compensation Act, 1906 
 
 Chap. X. 
 
 Notice of 
 accident. 
 
 Brown v. 
 Lochgelly Iron 
 Co. 
 
 notice because he underrated the injury he had sustained, 
 and his doctor did not explain so fully as was necessary to 
 make him appreciate his injuries for fear of giving him a 
 shock. The Court held that even though the employers 
 were prejudiced by the delay yet it was occasioned by a 
 mistake for which there was a reasonable cause. The case 
 of Brown v. Lochgelly Iron Co. (a) was similar. Applicant 
 continued to work for eleven weeks after he was injured. 
 Then he stopped work, and a week after this gave notice 
 of the accident. The Court excused him. The wording of 
 the section in the Act of 1906 is much extended beyond 
 that of the previous Act. There the question was rebus sic 
 stantibus was the employer prejudiced in his defence by the 
 want, defect, or inaccuracy. Now the additional question 
 has to be answered : would he be if a notice or an amended 
 notice were given at the time when objection is taken and 
 the hearing postponed ? (6) To take the point that notice 
 of accident or of death, disablement, or suspension was not 
 given, the respondent must file his answer with the registrar 
 ten clear days before the day fixed for proceeding with the 
 arbitration, stating his ground of objection, (e) 
 
 In the event of non-compliance with this rule, and the 
 applicant not permitting a waiver, the judge may on such 
 terms as he shall think fit, either proceed with the arbitra- 
 tion and allow the respondent to avail himself of such 
 matter, or adjourn the arbitration to enable the respondent 
 to file such answer, {d) 
 
 The judge has a discretion about this, (e) and notwith- 
 standing the opinion of Williams, L.J., it is a common 
 practice to grant terms where the workman's claim would 
 be extinguished by amended proceedings. 
 
 (a) [1907] S. 0. 198. (6) S. 2 (1) (a), 
 
 (c) W. C. E. 1907, r. 17 (1). (d) lb. (4). 
 
 (c) Silvester v. Cude, 15 T. L. E. 434. 
 
.Procedure 607 
 
 A notice of injury not followed by a claim for compensa- Ch^^p. X. 
 tion is not a "proceeding" under the Act. Though they noticTrf" 
 are two separate steps there is nothing to prevent both '°°'*™'" 
 being comprised in one document, (a) 
 
 In the case of an injury in the sea service but not on a 
 ship, notice of accident may be served on the master if he 
 is not the person injured. But where the accident happened 
 and the incapacity commenced on board the ship, it is not 
 necessary to give any notice of the accident. (6) 
 
 (2) Claim fok Compensation. 
 
 The claim which may be embodied in the notice of No technicality 
 injury but which is yet an independent requirement of the 
 statute may be entirely free from technicality. In Powell powcu «. Mam 
 
 Ti/T'/^ii- r-i r ^ ^ 1. Colliery Co. 
 
 V. Mam (Jolliery Company (c) the claim was in these 
 words : " I claim the sum of 15s. per week from the 4th day 
 of January, 1899, until such date as I shall be able to 
 resume work, as compensation for injury received by me, on 
 the 21st day of December, 1898, at your colliery at Bryn- 
 coch. — William Powell." This was given within six months 
 of the injury. " No one could reasonably doubt, unless he 
 is forced by some circumstances extrinsic to the actual 
 words under construction, that this was a * claim for com- 
 pensation.' " " It was also made by the person who was 
 alleged to have suffered, and it was served upon the person 
 who was alleged to be liable ; and the ' claim ' so stated and 
 described in the written paper was made for a definite 
 amount in respect of an accident described by its date ; " 
 and " no person, unless forced to give an artificial meaning 
 to the words of the section, could doubt that it was a ' claim 
 for compensation.' It purports on the face of it to be a 
 
 (a) Perry v. Clements, 17 T. L. R. 525. 
 
 (6) S. 7 (1) (a). Ante, 309. (c) [1900] A. 0. 366 at 369., 
 
608 Workmen's Compensation Act, 1906 
 
 Chap. X. claim for compensation ' under the Act." (a) This is 
 
 Claim foT" sufficient, and it is not necessary that it should be made in 
 
 compensa on. ^j^^ ordinary course of legal proceedings. " As soon as the 
 
 claim is sent to the employer he can, if he disputes it, 
 
 himself take the difference to arbitration and have it 
 
 settled." (h) 
 
 No limiiation oi The claim for compensation and its denial are, save as 
 
 time for request 
 
 for arbitration, hereafter (c) noticed, necessary preliminaries to the request 
 for arbitration. It follows, then, that to this last there is no 
 limitation of time. If the unequivocal claim for compensa- 
 tion is made within the six months the request for arbitration 
 may be indefinitely deferred. This formed the basis of an 
 objection to regarding the request as different from the claim. 
 It was urged that, a claim having been made by the workman, 
 the whole matter might then be hung up in defiance of 
 the employer, (d) Eomer, L. J., replies to this : " Would it 
 not be an extraordinary case to suppose that when a work- 
 man had made a claim for compensation, and the master 
 refused to agree to it, the workman should stand by for six 
 years and not proceed? It would, I think, be a most 
 extraordinary case. Is it to be wondered at that no form 
 can be found specially dealing with such a case? The 
 objection that the master cannot compel the workman to 
 go on in such a case is theoretical; but, assuming the 
 theory, it can be met by a theory — and that a good theory, 
 too — that the master can force the workman on in such an 
 extraordinary case." The Lord Chancellor also points 
 out (e) that as against an employer anxious to proceed it 
 would be an impossible one. " If it is meant that there is 
 no mode actually pointed out by the Statute, I agree ; but 
 
 {a) Per the Lord Chancellor, I. c. at 370. 
 
 (6) Per Lord Eobertson, I, c. at 382. 
 
 (c) Post, 612. {d) [1900] 2 Q. B. at 162. 
 
 (e) [1900] A. 0. at 372. 
 
Procedure 609 
 
 it is left to the ordinary law in that respect, and I have Chap. X. 
 
 never heard yet that a defendant cannot apply to anciaimtoT 
 
 arbitrator for an appointment to have settled a question '"""^™°*"°"" 
 
 which has arisen between himself and his co-litigant. It 
 
 has happened to me before now, and I dare say to all of 
 
 your Lordships who have sat as arbitrators, that if a plaintiff 
 
 has been found shilly-shallying and declining to go on, an 
 
 appointment has been applied for; and I dare say it has 
 
 happened to most of your Lordships in that event to give a 
 
 peremptory appointment for such and such a day, and to 
 
 say that you would go on in the absence of the plaintiff 
 
 unless he appears. Why is not that procedure applicable 
 
 to this matter?" Romer, L.J., answering the objection Absence of form 
 
 , . -I immaterial. 
 
 that there was no form provided, says : (a) " If there had 
 been no such rule as rule 67, (6) I should still have said 
 that the forms were machinery, and that ■ the absence of a 
 special form was no answer to the right of a master to 
 demand arbitration, when, as I have pointed out, the Act of 
 Parliament has clearly given him the right to demand 
 it . . . The master has only to take a form and adapt it to 
 his special case, and, in my opinion, he is entitled to 
 demand arbitration under such circumstances as I have 
 indicated, and to compel the County Court judge, if there 
 is no special committee to arbitrate upon the question." 
 
 The result of this decision was the issue of supple- 
 mentary rules formally to meet the case of the employer 
 desiring to set the arbitration procedure in motion, (c) 
 These merely adapt the procedure at the instance of the 
 workman to the procedure where the employer moves in 
 the matter. 
 
 (a) (1900) 2 Q. B. at 162. 
 
 (6) See now W. C. B., 1907, r. U. 
 
 (c) W. G. R. 1900, rr. 10a*, 14* (2), 17* (5), 18* (7), 22* (a), 24* (2). 
 See now W. 0. E. 1907, rr. 10, 14 (2), 17 (5), 18 (8), 2S. 
 
610 Workmen's Compensation Aet, 1906 
 
 Chap. X. The claim need not be in writing, thou^h^^ obviously, it 
 
 ciaim"ftr ^^^ better be. In Lowe v. Myers & Sons, (a) !Rlomer, L.J., 
 compenBation. . „ Q£ ^^^^^^ -f j^ ^^^ necessary that the claim should 
 
 Claim not •' •' ^ / , 
 
 writtm'^oM* taye been made ia writing different considerations might 
 arise. But the Act does not say that, nor that any 
 particular formalities should be adopted, an^Jjkmy opinion 
 it is not necessary that the claim skould be in writing, or 
 attended by any formalities, provid!ed it is a claim made 
 under the Act." 
 
 Claim must be But the claim (6) for compensation should be made 
 
 within the six \ / ± 
 
 months. within the six months. Yet the failure to make a claim 
 
 Failure to make 
 
 a claim. 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, is not a bar to the maintenance 
 of proceedings if it be found that the failure was occasioned 
 by mistake, absence from the United Kingdom, or other 
 reasonable cause, (e) 
 
 There is some incongruity at first sight between this 
 provision which guards against a " failure to make a claim," 
 and the preceding provision, (<Z) which is to apply where 
 there is " want of or any defect or inaccuracy in the notice 
 of accident." But omne majus in se continet minus ; and 
 " failure to make a claim " will doubtless when necessary , 
 be construed to be failure to make a valid claim, i.e. 
 specifying the names of workmen and employer, the amount 
 of compensation demanded, and the date of the accident, (e) 
 and its healing operation will be applied to any defect 
 or inaccuracy that would go to mar a claim as well as 
 to a total failure. 
 
 (a) [1906] 2 K. B. 265, 273. (6) S. 2 (1). Ante, 301. 
 
 (c) S. 2 (1) (b). (d) S. 2 (1) (a). 
 
 (e) Powell V. Main CoUiery Co., Ltd., [1900] A. 0. 866. Cp. Bennett v, 
 Wordie, 1 F. 250; Kilpatrick v. Wemyas Goal Co., Ltd., [1907] S. C. 320. 
 
Procedure 611 
 
 Absence from the United Kingdom, a trip to the Chap. X. 
 Channel Islands, for example, is a very clumsy excuse for ciaim fbT" 
 admitting a stale claim, but as it is linked with « other °°°'^*''°°"'°"' 
 reasonable cause" the judge would probably consider 
 himself bound to consider the bona fides of the excuse 
 given, though perhaps he would prefer to base his action 
 on more general grounds, (a) 
 
 Eidley, J., held in Perry v. Clements (6) that a mere Notice of injury 
 notice of injury was not sufficient without a claim for B»ffl<=*«it' 
 compensation; in the absence of which latter there was 
 no proceeding under the Act. Judge Stonor held in 
 Trenear v. Wells & Co. (e) that a letter containing notice 
 of injury, with the addition of the words: "I shall be Form of claim. , 
 extremely obliged if you will let me know what compensa- 
 tion you will allow me. An immediate reply will oblige " 
 is a claim for compensation. In Perry v. Clements it 
 seems to have been admitted that there was nothing in 
 addition to the mere notice of injury ; so that there is no 
 conflict between this case and Trenear v. Wells. There 
 can be no doubt that a claim for compensation may be 
 contained in the same document as the notice of injury ; 
 or, indeed, in no document at all, but may be orally 
 communicated. 
 
 Though there are elaborate provisions with regard to 
 the service of the notice of injury, which must be in writing, 
 there are none with regard to the making of the claim of 
 compensation. We have seen that this may be oral, (c?) 
 
 {a) Rogers v. Hadley, 32 L. J. Ex. 241, per Pollock, C.B., 248. 
 
 (6) 17 T. L. E. 525. Notice of injury, payment of compensation and 
 request for arbitration were held not to amount to a claim in Lee v. 
 Oortonwood Collieries Co., 4 W. C. C. 32. 
 
 (c) Law Times newspaper, 28th July, 1900 ; 3 W. C. C. 58. 
 
 {d) Ante, 610. 
 
612 
 
 WorTcmen's Compensation Act, 1906 
 
 Chap. X. 
 
 Claim for 
 compeDsation. 
 
 Claim for no 
 specific amount. 
 
 Whether a claim has been made or not will be a question 
 of fact for the arbitrator. 
 
 In Bennett v. Wordie {a) the document relied on as a 
 claim for compensation was worded thus : " Messrs. Wordie 
 & Co. — Thomas Bennett, stableman, 86, Albert Street, 
 Dundee, has consulted me in reference to the death of his 
 son, Thomas Bennett, who was killed while in your em- 
 ployment in the jute warehouse in Mid- Wind, Dundee, in 
 August last. As the accident arose in the course of 
 deceased's employment, and as insufficient precautions 
 were taken for his safety, I am instructed by his father to 
 intimate that he holds you liable for compensation and 
 solatium. This notice is given in the terms of the Statutes." 
 The Court held that here there was no "claim for com- 
 pensation," with which decision the Lord Chancellor did 
 " entirely agree," (6) as he did also in the Irish case of 
 Marno v. Workman, (c) and on the ground that there 
 was "absolutely no claim." 
 
 In another Scotch decision, Fraser v. Great North of 
 Scotland Ey. Co., {d) the point was discussed whether the 
 absence of a claim for a specific amount invalidated the 
 claim. This was left undecided, though on principle there 
 seems no doubt that it does not. All that is required is 
 definitely to propose compensation; the amount is im- 
 material. That has to be settled in default of other means 
 in the arbitration ; and the employer has, in the majority 
 of cases at least, as much material for judging what the 
 amount should be as the workman. What the Court did 
 decide was that a request for arbitration is a sufficient 
 claim. This would seem to concede the principle of the 
 other point. 
 
 (a) 1 P. 855. 
 
 (c) 34 Ir. L. T. B. U. 
 
 (h) [1900] A. 0. at 373. 
 ((J) 3 F. 908. 
 
Procedure 613 
 
 That a request for arbitration is a sufficient claim was Chap. X. 
 conceded in Wright v. Bagnall & Sons, Ltd. (a) On the cuimfoT^ 
 same point in Eraser v. Great North of Scotland Ry. Co., (6) "^^^''' 
 Lord M'Laren says : " I cannot find that any member of J^Sltciaim. 
 the Court of Appeal, or any of the judges who took part 
 in the decision of the House of Lords, ever doubted that 
 a request for arbitration filed in a County Court would 
 have been a good claim if made within the statutory period 
 of six months." 
 
 The deputy County Court judge in Wright v. Bagnall Employers may 
 & Sons, Ltd., further held as matter of law that the six i>y conduct. 
 months' limit was absolute, and that it was not open to the 
 w.orkman to show that the employers have debarred them- 
 selves from taking the objection. That is, of course, in 
 the absence of fraud. In this the Court of Appeal reversed 
 him, holding that on the facts there was evidence of an 
 agreement that compensation was to be paid, the only 
 question left open being the amount. Where there is a 
 statutory liability on the employer to pay compensation 
 and the amount is left open for future settlement, there 
 is evidence thus constituted from which the judge may 
 find that the employer is estopped from setting up that 
 the claim for compensation had not been made within 
 six months. 
 
 This reasoning appears to be in accordance with the LinwaterD. 
 holding of the Court of Appeal in Linklater v. Webster, (c) 
 and it certainly accords with Powell v. Main Colliery Co., {d) ^JJJ^^qJ'"'' 
 which strongly negatives anything like "technology." 
 " It certainly is a very familiar rule of construction that 
 you have no right to add words to a statute unless the 
 exigency of the rest of the statute which you are construing 
 
 (o) [1900] 2 Q. B. 240, (6) 3 P. 908. 
 
 (c) 6 W. 0. 0. 50. (d) [1900] A. 0. 366, 37L 
 
614 
 
 Workmen's Compensation Act, 1906 
 
 Chap. X. 
 
 Claim for 
 compensation. 
 
 Beath v. Keay 
 
 & NesB. 
 
 renders it necessary for you to do so." But in Kilpatrick 
 V. Wemyss Coal Co., (a) and in Maver v. Park, (&) the Scotch 
 Courts held that a claim means a demand for a definite 
 and specific sum. They also adopted a severely literal 
 construction in O'Neill v. Motherwell, (c) There a woman 
 who had been totally incapacitated through an injury 
 received in the coilrse of her employment received from 
 her employer for a period of six months thereafter the 
 sum of 10s. a week, which was 9d. a week in excess of 
 the maximum under the Act. After the period of six 
 months the employers proposed to pay no more than 5s. 
 per week. The woman then presented a request for 
 arbitration. The Court held that there was nothing in 
 the circumstances that avoided the strict rule of the Act 
 of 1897. But now as the failure to make a claim at all 
 m no bar to proceedings it is not to be anticipated, as has 
 just been pointed out, that the failure to insert figures 
 (which are substantially supplied by the First Schedule) 
 occasioned by mistake or other reasonable cause would 
 work any irremediable evil. 
 
 The limit of a claim for compensation one would have 
 thought was reached in Beath v. Keay & Ness, (d) where a 
 workman having obtained a decree for 17s. a week " until 
 further orders of Court," subsequently accepted employ- 
 ment with the same employers at 34s. a week, which were 
 the same wages as before the accident. He continued in 
 the employment for some time, and no steps were taken 
 by the employers " to have the decree for weekly payments 
 renewed or terminated." Having left the employment 
 the workman claimed against the employers for the weekly 
 payments from the date of the decree. The employers 
 
 (a) [1907] S. 0. 230. 
 
 (c) [1907] S. 0. 1076. 2 (1) (b). 
 
 .(6) 8 F. 2S0. 
 (d) 6 F. 168. 
 
Procedv/re 615 
 
 offered payment of the 17s. during the time the workman Chap. X. 
 was not working. Lord Pearson ordered them to pay the g,^;^ j^ 
 sum claimed, but was reversed by the Court, who held """P'"^""""- 
 that the workman was not ' entitled to payment under the 
 decree for the time he was earning full wages. The 
 attempt to obtain a profit payment in the manner above 
 indicated was repeated in Nimmo & Co. v. Fisher, (a) but 
 Beath v. Keay & Ness was followed. 
 
 In Wm. Baird & Co. v. M'Whinnie, (6) a similar pre- wm. Baw & co. 
 
 ^ ' '■ V. M'Whinnie. 
 
 tension was advanced, the effect of which would have 
 been to secure the workman a sum largely in excess of 
 his full average wages prior to the accident. Here also 
 he was unsuccessful. 
 
 Wright V. Bagnall (e) was distinguished in Een'dall v. Eendaii ». hiu's 
 Hill's Dry Docks and Engineering Co. {d) A workman Engineering co. 
 having been injured received through an insurance com- 
 pany half the amount of his wages, giving a receipt that 
 the money "was received on account of compensation which 
 may be or become due to me under the Workmen's Com- 
 pensation Act, 1897." They paid for ten months, when 
 they ceased. Thereupon the workman filed a request for 
 arbitration. The County Court judge held that the receipts 
 were " either claims for compensation or evidence that a 
 claim had been made." He was reversed by the Court of 
 Appeal. In Wright v. Bagnall it was said that " the claim 
 for compensation had not been made within six months of 
 the accident," and the County Court judge held " that the 
 parties had agreed that there was a statutory liability on 
 the respondents to pay compensation, and that each of 
 them had reserved the right to go to the Court to have 
 the amount determined." " Where," said Smith, L.J., (e) 
 
 (a) [1907] S. 0. 890. (6) 45 So. L. R. 338. 
 
 (c) [1900] 2 Q. B. 240. (d) [1900] 2 Q. B. 245. 
 
 (e) L. c. at' 249. 
 
616 
 
 WorhTTben's Compensation Act, 1906 
 
 Chap. X. 
 
 Claim for 
 compeuaation. 
 
 Oliver v, 
 NantiluB Steam 
 Sbipping Co. 
 
 " is there any evidence in the present case that the parties 
 agreed that there was a liability on the part of the em- 
 ployers to pay compensation? I can see no evidence of 
 any such agreement." 
 
 Stirling, L.J., thus explains Eendall v. Hill's Dry 
 Docks & Engineering Co, in Oliver v. Nautilus Steam 
 Shipping Co. (a) " There what took place was that 
 apparently no notice of the injury was sent under the 
 Act, nor was any formal claim put forward, but pay- 
 ments were made by an insurance company on behalf of 
 the master, and receipts were taken precisely in the same 
 form as are found to have been taken in the present case. 
 In that state of things the County Court judge before 
 whom the case came held that a claim for compensation 
 under the Act did not mean only an application for 
 arbitration; he further held that if, having regard to the 
 defence of the appellants, it was open to them to object 
 that the weekly receipts signed by the respondent were 
 not claims for compensation, such receipts were either 
 claims for compensation or were evidence that a claim 
 had been made, and that the appellants, by taking such 
 receipts and paying the weekly sums therein mentioned, 
 either waived a claim for compensation or were estopped 
 from taking their objection. He held, therefore, that the 
 employers were not entitled to set up the objection that 
 no claim had been made within the six months." At 
 that time the decision in Powell v. Main Colliery Co., 
 Ltd., (6) in the Court of Appeal was standing, and the case 
 was decided with reference to that decision. But it does 
 not seem to me that that exhausts the case, because A. L. 
 Smith, L.J., who delivered the judgment of the Court, 
 
 (a) [1903] 2K. B. at655; 
 (6) [1900] A. 0. 366. 
 
 19 T. L. B. 607. 
 
Procedwi 617 
 
 after referring to the receipt, says, (a) " Do these circum- Chap. X. 
 stances show a waiver of the six months' limitation, or ciaim^for" 
 amount to an estoppel against setting up that defence ? """"p™'""™" 
 Clearly they do not. The case of Wright v. Bagnall 
 has been referred to. What was the ratio decidendi in 
 that case? There the claim for compensation had not 
 been made within six months of the accident, and the 
 County Court judge held, as my brother Collins says, that 
 the parties had agreed that there was a statutory liability 
 on the respondents to pay compensation, and that each 
 of them had reserved the right to go to the Court to have 
 the amount determined. My brother Vaughan Williams 
 seems also during the argument to have said what was 
 exactly to the same effect. Where is there any evidence 
 in the present case that the parties agreed that there was 
 a liability on the part of the employers to pay com- 
 pensation ? I see no evidence of any such agreement." 
 
 Wright V. Bagnall cannot, therefore, be taken to lay 
 down any rule apart from its very special facts — certainly 
 not the rule that the workman does not lose his right 
 to recover if the employer, by temporizings spins out 
 negotiations beyond the time of limitation. (I) 
 
 The obiection that there is no claim for compensation, objection th»t 
 
 . 11.1 tliere is no claim 
 
 or that the claim is out of time, must be taken in the *■> ^ taken in 
 
 answer^ 
 
 answer to the particulars annexed to the request for 
 arbitration under rule 17 (1). (e) In lUingworth v. Leave to amend 
 
 rofusGd 
 
 Walmsley {d) the County Court judge refused leave to 
 amend so that the appellant might allege no claim for com- 
 pensation within the six months. As the allowance of the 
 amendment would necessarily be fatal to the application, 
 
 (a) [1900] 2 (5. B. at 249. 
 
 (6) Reeves v. Hearne, 1 M. & W. 323. 
 
 (c)- W. 0. R., 1907. Post, 721 
 
 (d) [1900] 2 Q. B. 142 ; 16 T. L. B. 281. 
 
 2 S 
 
618 
 
 Workmen's Compensation Act, 1906 
 
 Chap. X. 
 
 Claim for 
 comp&DBation. ' 
 
 Death in the 
 sea service. 
 
 Lost ship. 
 
 it would probably not be admitted in any case unless very 
 good cause were shown, (a) 
 
 In the case of the death of a master, seaman or 
 apprentice in the sea service, or an apprentice in the sea 
 fishing service or a pilot, (6) where the Act applies, (c) the 
 claim for compensation shall be made within six mouths 
 after news of the death has been received by the claimant, (d) 
 and shall state the date at which news of the death was 
 received by the claimant, (e) and (where the claim arises 
 out of the loss of the ship) the date at which the ship 
 was lost. (/) 
 
 It will be sufficient in the proceedings to describe the 
 
 owners of the ship as " the owners of the ship ." Service 
 
 of document or proceedings will be sufficient if made on 
 the managing owner or manager for the time being, or 
 (except where the master is claiming compensation) on 
 the master of the ship; and sec. 696 of the Merchant 
 Shipping Act, 1894, (^) sub-sec. (1), the section as to 
 service of notice, shall apply to service on the master of 
 the ship, and where the master is claiming compensation, 
 and there is no managing owner of the ship, service may 
 be effected in accordance with par. (c) of the said sub- 
 section, (h) by affixing a copy to the mast of the ship. 
 
 The presumption as to a lost ship is declared by 
 sec. 174 (2) of the Merchant Shipping Act, 1894. Where 
 a ship has twelve months or upwards before the institution 
 of any proceedings left a port of departure and has not been 
 since heard of for twelve months, she is to be deemed to 
 have been lost with all hands on board, either immediately 
 
 (a) Cp. Silvester v. Oude, 15 T. L. R. 434, 
 
 (6) S. 7 (3). (c) S. 7 (1). {d) lb. (b). 
 
 (e) W. 0. R. 1907, r. 36 (2). (/) lb. (3). 
 
 (g) 57 & 68 Viot. o. 60. (h) W. C. R. 1907. lb. (6). 
 
Procedure 619 
 
 after the time she was last heard of or at such later time Chap. X. 
 as the Court hearing the case may direct. ciaimfoT" 
 
 compeusation. 
 
 Sub-sec. (3) of the same section specifies certain docu- 
 ments which if produced out of the custody of the registrar- 
 general of shipping and seamen, or of the board of trade, 
 shall 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. 
 
 These sections are made applicable to the cases of 
 seamen under the W. C. Act, 1906. Proceedings for the 
 recovery of compensation in such cases are to 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. («) 
 
 (3) Request fob Aebitkation. 
 The request for arbitration must be made either — 
 
 (a) By the injured man. 
 
 (b) By his legal personal representative, 
 (o) By the dependants, or any of them, (b) 
 
 (d) By any one entitled to the reasonable expenses 
 
 of his medical attendance and burial, (c) 
 
 (e) By any one claiming to be a dependant, {d) 
 
 (f) By the employer, (e) 
 
 The person making the request is the applicant. All Applicant, 
 other persons brought into the arbitration for the more 
 effectively dealing with it are " the respondents," (/) Eeapondent. 
 
 (a) S. 7 (1) (g). (h) W. 0. B. 1907, r. 4. 
 
 (c) W. 0. E. 1907, r. 6. 
 
 (d) First Sohediile (8) ; W. 0. B. 1907, r. 5 (1). 
 
 (e) W. 0. B., 1907, r. 10. 
 
 (/) W. G. B. 1907, r. 2 (1). Post, 716. 
 
620 
 
 Workmen's Compensation Act, 1906 
 
 Chap. X. 
 
 Request for 
 arbitration. 
 
 Legal personal 
 representative. 
 
 "Dependants.'* 
 Application by 
 mother in life- 
 time of father. 
 
 More persons than one may be joined as applicants, (a) 
 The test of whether the joinder is proper is whether 
 the joinder would be allowable under the County Court 
 Eules. (S) 
 
 If the legal personal representative makes the request 
 for arbitration he must file particulars of the dependants 
 on whose behalf he appears, (c) 
 
 If there is no legal personal representative the depen- 
 dants may themselves apply, {d) or any of them, the others 
 being named as respondents, (e) 
 
 In Beavan v. Crawshay Brothers, (/) the deceased's 
 parents both survived. There was also another boy and a 
 sister. The father made a claim for compensation under the 
 Act. He then let the matter drop. The wife then took it up 
 and made the request for arbitration on the footing of 
 partial dependency. The County Court judge held that 
 the mother was in part dependent. Objection in the 
 Court of Appeal was now made that there was no power 
 to deal with the matter in the absence of the husband, and 
 the award was consequently bad. Collins, M.E., thought 
 the provision under rule 4 (3) {g) was " not so absolute as 
 was contended for." " He was not sure that the presence 
 of the husband (the father) was necessary to enable the 
 County Court judge to adjudicate on the questions involved 
 in the arbitration ; " however, " the point not being raised 
 
 (a) W. C. K. 1907, r. 3. Post, 716. 
 
 (6) Order III., r. 1, 0. 0. Bules, 1903 ; Order XLIV., rr. 18, 19. 
 
 (c) W. C. E. 1907, r. 4 (1). Post, 716. 
 
 (d) W. 0. B. 1907, 1'. 4 (2). 
 
 (e) W. 0. B. 1907, r. 4 (2). 
 
 (/) 18 T. L. E. 17, reported, but not on this point, under the name 
 Bevan v. Crawshay Brothers, [1902] 1 K. B. 25. 
 
 (g) Now 4 (2). 
 
Frocedure 621 
 
 at the hearing, it seemed to him no injustice was done by Chap. X. 
 the award." The mother is a dependant, (a) Requ^Itfor 
 
 \ arbitration. 
 
 In considering who are to be joined, those claiming to 
 be dependants are to be included, (b) The substantiation 
 of the claim will be matter subsequent, when the award 
 comes to be apportioned. Then the determination of the 
 claim to rank as a dependant can be made matter for an 
 arbitration, (e) in which the employer need not be made 
 a party ; {d) or, if made a party, may pay the amount of 
 compensation into Court and have the proceedings against 
 him stayed, (e) If the workman leaves no dependants, his 
 legal personal representative is the proper person to apply 
 for the payment of the medical attendance and funeral 
 expenses. If there be no such representative, then applica- 
 tion may be made by any person to whom they are due, 
 when all persons interested must also be joined ; (/) and, if 
 the compensation is not enough to pay the expenses in 
 full, it shall be apportioned as the judge shall direct. 
 
 The applicant, having: been determined on in the way Fiungreqofst 
 
 ^J^ , . for arbitration. 
 
 indicated, must file the request for arbitration with the 
 registrar of the County Court of the district in which all 
 the persons concerned reside, or, if they reside in different 
 districts, the district in which the accident occurred. (^) 
 The request must have appended particulars specifying— f^Xatio" 
 (1) The nature of the claim and the order the applicant 
 claims. 
 
 (a) S. 13 " dependants," " member of a family." 
 (6) W. C. E. 1907, r. 4 (1). Post, 716. 
 
 (c) W. e. B. 1907, r. 5 (1). Post, 717. 
 
 (d) W. 0. B. 1907, r. 5 (2). 
 
 (e) W. 0. B. 1907, r. 5 (3). 
 
 (/) W. C. B. 1907, r. 6 (1). Post, 717. 
 ig) W. 0. B. 1907, r. 8. Post, 718. 
 
622 WorJcmen's Compensation Act, 1906 
 
 Chap. X. (2) The date of service of the notice of the accident, 
 
 Request for or if nonc, then the reason why. 
 
 arbitration. 
 
 (3) The full names and addresses of the respondents 
 and of the applicant and his solicitor, if any. (a) 
 
 We have before noted (&) the provision for the employter 
 making the request for arbitration, the rules with regard 
 to which are applications of those providing for the 
 application by the workman, (c) 
 
 The request must be accompanied with particulars, (d) 
 
 Copy for judges The applicant must deliver to the registrar a copy of his 
 request and particulars for the judge or arbitrator, and a 
 copy for each respondent, (e) If the applicant is illiterate 
 and not able to write, the request and particulars and 
 copies are to be filled up by the registrar's clerk. (/) The 
 respondent must then file his answer, in which any objection 
 is to be stated (g). 
 
 (4) Aebiteation. 
 
 The proceedings as to arbitration are provided for by 
 the Second Schedule, (h) 
 Matters that The matters that may be settled by arbitration have 
 
 mitted to been enumerated (i) as follows : — - 
 
 arbitration. 
 
 (1) Liability. 
 
 (2) Amount. 
 
 (3) Duration. 
 
 (a) W. 0. R. 1907, r. 8 (3). Post, 718. Forms are given.— Appendix, 
 Forms 1—11. Post, 767. 
 
 (6) Ante, 609. (c) W. 0. B. 1907, r. 10. Post, 718. 
 
 (d) W. G. B. 1907, r. 10 (2). Post, 719. 
 
 (e) W. 0. B. 1907, r. 11. Post, 719. 
 (/) W.C.E. 1907,r. 12. Posi, 719. 
 
 (g) W. C. B. 1907, r. 17 (1). Post, 721. {h) Ante, 335. 
 
 (i) Cochrane v. Traill & Sons (No. 2), 38 Sc. L. R. 18. 
 
Procedure 623 
 
 (4) Dependency. Chap^X, 
 
 (5) Apportionment amongst dependants. Arbitration. 
 
 (6) Eeview. 
 
 (7) Kedemption. 
 
 The arbitrator may be — 
 
 (1) Any committee which has been established by the various 
 
 , 1 1 - f 1 . deacriptions of 
 
 employer and his workmen to settle matters arising arbitrators. 
 under the Act. (a) 
 
 (2) An arbitrator agreed on by the parties, (b) 
 
 (3) The County Court judge, (e) 
 
 (4) An arbitrator appointed by the County Court 
 judge, {d) 
 
 (5) 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 a party, appoint a new 
 arbitrator, (e) 
 
 In the case of a committee, if either the employer or procedure of 
 the workman wishes, and the other does not object before 
 the matter is brought before a conciliation committee, such 
 committee, if they choose, may settle the matter at once. 
 
 If they do not choose to undertake the reference, they 
 may refer it to arbitration. By par. (2), if they refer the 
 matter, the arbitrator to whom they refer it must be agreed 
 on by the parties. 
 
 If the parties do agree, they are in the same position 
 as if they had ignored the committee. 
 
 If they do not agree, they are equally in the same 
 
 (a) Second Schedule (1). Ante, 335. 
 
 (6) lb. (2). Ante, 335. (c) lb. (2). 
 
 (d) lb. (3). Ante, 336. This appointment is dependent on the rules to 
 be issued authorizing it. See W. C. E. 1907, r. 29. Post, 730. 
 
 (e) lb. (8). Ante, 337. 
 
624 
 
 Workmrnls Compensation Act, 1906 
 
 Arbitration. 
 
 Arbitration 
 
 without 
 formalities. 
 
 Powers. 
 
 Chap. X. position as if no committee existed. And in either event 
 there is merely so much lost labour, beyond the possibility 
 arising from the committee recommending an arbitrator. 
 
 On the other hand, the existence of the committee, and 
 the confidence it may have engendered between workman 
 and employer, may cause their disputes to be automatically 
 referred to the committee ; and hence a not inconsiderable 
 gain would ensue. 
 
 Where the arbitrator is (1) a committee, or (2) an arbi- 
 trator agreed on by the parties, the proceedings are to 
 be carried on without any formalities prescribed; unless 
 perhaps in the first case those indicated in the Councils of 
 Conciliation Act, 1867. (a) 
 
 There is no power to compel the attendance of witnesses, 
 nor the production of documents, nor to make the witnesses 
 who attend answer, nor to order and enforce the delivery 
 of particulars. By 14 & 15 Vict. c. 99, sec. 16: — "Every 
 court, judge, justice, ofiScer, commissioner, arbitrator or 
 other person, now or hereafter having by law or by consent 
 of parties authority to hear, receive and examine evidence, 
 is hereby empowered to administer an oath to all such 
 witnesses as are legally called before them respectively." 
 
 The Arbitration Act, 1889,(6) is not to apply to any 
 arbitration under the Workmen's Compensation Act, 1906 ; 
 but a committee or an arbitrator may, if they or he think fit, 
 submit any question of law for the decision of the County 
 Court judge, which shall be final unless there is an appeal 
 to the Court of Appeal, (c) They may also submit to a 
 medical referee for report any matter which seems material 
 to any question arising in the arbitration, {d) This power 
 
 Appeal, 
 
 (a) 30 & 31 Viot. o. 105. 
 (c) Second Schedule (4). 
 
 (6) S2 & 53 Viot. c. 49. 
 id) Second Schedule (15). 
 
Procedure 625 
 
 is subject to Joint Home Office and Treasury Eegulation, Chap. X. 
 which must be referred to (a). It has been decided, perhaps ArMtJIJi^. 
 somewhat superfluously, that the arbitrator is not bound to 
 treat the report as conclusiye. (6) If he were, what profit in 
 reporting? the matter would then be a reference. The 
 doctor is not judge ; at the highest he is but an assessor on 
 an issue in the case ; and is in a quite different position 
 from the medical referee, par. 15, (c) who is invoked by the 
 parties, and whose decision is conclusive between them, as 
 to the matters certified. 
 
 By the Second Schedule, par. (16), the Secretary of PowerofComty 
 
 c\. , 1 1 A Court conferred 
 
 btate may by order confer on a committee acting as ^y order of 
 
 -.. Secretary of 
 
 arbitrators all or any )5f the powers conferred by the Act ^^'^• 
 on County Courts or judges of County Courts, id) He may 
 also by order provide how and to whom the compensation 
 money is to be paid where but for the order it should be 
 paid into Court ; and may exclude agreements submitted 
 to the committee from the powers of revision of the registrar 
 of the County Court or the judge under second Schedule, 
 par. (9), (8) and (e). (e) The Secretary of State's Order may 
 further contain such incident, consequential, or supple- 
 mentary provisions as may appear to the Secretary of State 
 to be necessary or proper for the purposes of the Order. 
 At the time of printing these powers have not been 
 exercised. (/) 
 
 But when the amount of compensation is ascertained by Memorandum, 
 the committee or agreed arbitrator, or any weekly payment 
 is varied, or any other matter decided, a memorandum 
 thereof is to be sent to the registrar of the County Court 
 
 (a) Post, 869. (6) Dowds v. Bennie, 5 P. 268. 
 
 (c) First Schedule. Morton & Co., Ltd. v. Woodward, [1902] 2 K. B. 
 276. 
 
 (d) Ante, 341. (e) Op. ^rasi, 83T. (/) December, 1908. 
 
626 WorJcmen's Compensation Act, 1906 
 
 Chap. X. for the district in which the person entitled to the com- 
 Arbitration. pensation resides ; and, subject to authentication, this shall 
 be registered, (a) Upon which being done the memorandum 
 shall be enforceable as a County Court judgment. 
 
 Enforcement of This powcr of enforcement of the award as a County 
 Court judgment seems the main benefit of this mode of 
 procedure. If the sum arrived at as the compensation were 
 the result of a voluntary agreement, it would be possible 
 to dispute the binding character of it, and the cases noted 
 under Proposition VIII. of Chapter V., Part I. (6) would 
 have to be considered with reference to whether the agree- 
 ment was a valid one or in full satisfaction or not. 
 
 Tlie memorandum enforceable as a County Court judg- 
 ment is free from these difficulties. 
 
 arwtratorf I* IS to bc uotod that VQ. the case of the existence of 
 
 a committee, although neither party objects to the arbitra- 
 tion being settled by the committee, there is express power 
 given to the committee to refer the matter "in their dis- 
 cretion to arbitration as hereinafter provided." (c) If either 
 party objects the objection must be taken " before the com- 
 mittee meet to consider the matter " referred to them either 
 by the employer or the workman, {d) 
 
 Time of meeting J^q time IS Specified as necessary to intervene between 
 
 of committee. _ ••■ •' 
 
 the application by one party for arbitration and the con- 
 sideration of the application by the committee. 
 
 There is not even any provision that when the com- 
 mittee is invoked by one party notice should be sent to 
 the other party. It would be contrary to natural justice (e) 
 
 (a) Second Schedule (9). AnU, 337. (6) AnU, 116. 
 
 (c) Second Schedule (1). (d) lb. 
 
 (e) Quicungue aliquid statuit, parte inaudita altera 
 
 ^guum Ucet statuerit, hand ceguus fuerit, 
 cited from Seneca in Boawel's Case, 6 Co. Eep. 52a, and referred to in 
 
Procedwre 627 
 
 to enter on an arbitration without full notice to both Chap. X. 
 parties ; {a) and the meeting of the committee which is Arbitration. 
 to bind the parties to submit to the jurisdiction must be 
 the meeting for the purpose of taking evidence and 
 deciding the compensation, and not any preliminary meet- 
 ing at which the request of one party for the committee 
 to undertake the arbitration may be received, or any 
 meeting for the purposes of fixing the day for the hearing 
 or deciding upon the procedure to be adopted ; since the 
 words of par. (1) (h) are — " meet to consider the matter," that Matter for 
 
 >■ \ y ^ ' ^ consideration. 
 
 is, the main subject for consideration, and not mere sub- 
 sidiary inquiries. Thus either party, not otherwise com- 
 mitted, has a right to draw back until the matter is actually 
 before the committee for hearing ; and the matter which 
 may be considered by the committee may be either the 
 original application to fix compensation or subsequent arbi- 
 trations under par. (15) or par. (16) of the First Schedule, (c) 
 The time that is allotted for appearance and to prepare for 
 the arbitration must be a " reasonable time." (d) 
 
 If "the committee so refers the matter," by the next 
 provision («) the arbitrator is to be agreed on by the 
 parties, or, in the absence of agreement, is to be appointed 
 by the County Court judge. In fact, the provision for the 
 committee exercising a " discretion," if they do not wish to 
 undertake the arbitration, is absolutely otiose. 
 
 The rule merely gives to the committee a right that comment, 
 they have, quite independently of any rule — of tendering 
 
 Bonaker v. Evans, 16 Q. B. 162 at 172 by Parke, B., as " that great principle 
 of justice." 
 
 (a) In Bonaker v. Evans, 16 Q. B. 162 at 171, Parke, B., in delivering 
 the judgment of the Court, cites Bayley, B., in Capel v. Child, 2 C. & J. 
 558, as saying that he knows " of no ease in which you are to have a 
 judicial proceeding by which a man is to be deprived of any part of his 
 property without his having an opportunity of being heard." 
 
 (6) Ante, 335. (c) Ante, 831. 
 
 (d) See ante, 191. (e) L. c. (2). Ante, 335. 
 
628 
 
 WorhmerHs Compensation Act, 1906 
 
 Arbitrator 
 County Court 
 judge or his 
 nominee. 
 
 Chap. X. advice ; and gives to the parties a right they also have, 
 Arbitration. independently of any rule, of rejecting advice when 
 tendered. Whether the advice is rejected or accepted 
 conies to exactly the same thing. A name or names are 
 proposed, and, if one is agreed to, the parties are in the 
 same position as if they had in the first instance set to 
 find a person acceptable to both parties as their arbitrator. 
 If one is not agreed to, then the compulsory powers of 
 the Act come in, and the matter goes in due course before 
 the County Court judge. 
 
 One advantage there may be which may be noted. The 
 suggestion in the Act of the committee as arbitrator may 
 be acquiesced in since it is the suggestion of the Act, in 
 that large class of cases where no strong feeling exists ; 
 whereas were there no provision of the Act pointing to 
 such a mode of adjusting the compensation in every case, 
 proceedings more or less resembling litigation would have 
 to be taken. 
 
 Summary. The proccdurc may be thus summarized : 
 
 (1) The committee have an absolute right of refusing 
 to undertake the arbitration — like any other body 
 or person not bound by a legal duty to undertake 
 anything. 
 
 (2) If the committee refuse to undertake the arbitration, 
 the parties are referred to an arbitrator whom they 
 may agree upon ; in the absence of an agreement 
 an arbitrator is to be appointed by the County Court 
 judge, 
 
 (3) If the parties do not agree to go before the com- 
 mittee, they may — 
 
 (1) agree on an arbitrator ; 
 
 (2) if they do not agree they are to go before the 
 
 County Court judge. 
 
Procedure 629 
 
 A well-known writer on the Act, whom it is not necessary Chap. X. 
 further to identify, says that an arbitrator "is not bound by Artur"I«^. 
 the legal rules of evidence." This statement is directly in ^^1^^^^°* 
 conflict with the A.-G. v. Davison, (a) but derives what 
 semblance of authority it has from In re Keighley, Max- 
 stead & Co., (6) which case would, however, receive full 
 effect by interpreting the rule to be that in the case of an 
 arbitrator the Court will not be astute to seek out technical 
 deviations from the law of evidence in order to set aside an 
 award, while yet it requires a substantial compliance with 
 the general principles of evidence ; and has jurisdiction to 
 set an award aside in case of an infringement of them, (e) 
 ArUtrivm est boni viri arhitrium, (d) — the arbitration of a 
 competent man. 
 
 Where the arbitrator is either (1) the County Court 
 Judge, (e) or (2) an arbitrator appointed by the County Court 
 judge, whether originally or by substitution, the proceedings 
 are regulated by greater formality. 
 
 Under par. (6) (/) rules have been made for the appear- Eepresentation. 
 ance of any party by representation. 
 
 A party may accordingly appear — 
 (1) In person. 
 
 {a) M'Clel & Y. 160, 29 E. B. 774. 
 
 (6) [1893] 1 Q. B. 405. 
 
 (c) East & West India Dock Oo. v. Kirk & Eandall, 12 App. Gas. 738. 
 See Bussell, on Arbitration (9th ed.) 154. 
 
 ' (fl!) Per Dodderidge, 3., Berry v. Perry, 3 Buls. 62, 67. 
 
 (e) Or in Scotland the Sheriff, s. 13. By Second Schedule (17) (b). 
 In Scotland an application to the Sheriff under the Act is to be carried 
 through in the manner provided for by the Sheriffs Courts (Scotland) Act, 
 1876 (39 & 40 "Vict. o. 70), save only that the parties may be represented by 
 any person authorized in writing to appear. The Sheriff may be required 
 to state a case on any question of law determined by him to either 
 division of the Court of Session ; from whom there is an appeal to the 
 House of Lords. Pars. (3), (4), and (8) of the Second Schedule do not apply 
 to Scotland : Second Schedule (17). 
 
 (/) Ante, 836. See also the Eules Publication Act, 1893 (56 & 57 Viot. 
 0. 66) ; the Interpretation Act, 1889 (52 & 53 Viot. c. 63), s. 14. 
 
630 
 
 Workmen's Compensation Act, 1906 
 
 Chap. X. 
 
 Arbitration. 
 
 Solicitor. 
 
 (2) By a solicitor. 
 
 (3) By counsel. 
 
 Or by leave of the judge or arbitrator, a party may 
 appear — 
 
 (4) By a member of his family. 
 
 (5) By a person in the permanent and exclusive 
 
 employment of such party. 
 
 (6) In case of a company or corporation by any director 
 
 or secretary, or any other person in the per- 
 manent and exclusive employment of the company 
 or corporation. 
 
 (7) By any officer or member of any society of which 
 
 such party is a member. 
 
 (8) Under special cu'cumstances by any other person.(a) 
 
 None of these classes save a solicitor is entitled to 
 recover any fee for appearing. 
 
 The County Court Act, 1888,(6) sec, 72, permits a 
 solicitor " acting generally in the action or matter," " but 
 not a solicitor retained as an advocate by such first- 
 mentioned solicitor," to appear. But "the right of a 
 solicitor to address the court shall not be excluded by 
 reason only that he is in the permanent and exclusive 
 employment of any other solicitor." (e) 
 
 In England by par. (3), {d) a case of injury under the Act, 
 instead of being settled by the judge of the County Court, 
 may, if the Lord Chancellor so authorizes, be settled accord- 
 ing to the like procedure by a single arbitrator appointed 
 
 (a) W. 0. B. 1907, r. 83. Post, 732. See Law Times newspaper, 
 November 14, 1908, p. 86. 
 
 (6) 51 & 52 Vict. 0. 43. 
 
 (c) But see The Queen v. Judge ol County Court of Oxfordshire (1894), 
 2 Q. B. 440. 
 
 {d) Second Schedule. Ante, 836. 
 
Procedure 631 
 
 by that -judge, and the arbitrator so appointed shall have Chap. X. 
 all the powers of the judge in the matter of the arbitration. ^^,^5,^^. 
 The remuneration of an arbitrator appointed by a judge of 
 County Courts is to be paid out of moneys provided by 
 Parliament in accordance with regulations made by the 
 Treasury, (a) 
 
 By par. (4), " 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 production of documents 
 as if the proceedings were an action in the County Court. "(&) 
 
 Subject to the rules (and to the limitations of the Act), Procedure 
 
 *■ ^ ' prescribed by 
 
 the procedure in an arbitration shall proceed in the same ™i««- 
 manner as an arbitration before the judge ; but if before the 
 day fixed for the arbitration the parties agree upon an 
 award the judge may, with the consent of parties, settle it 
 himself, and the functions of the arbitrator are to cease, and 
 he is to be informed of the fact by the registrar ; and any 
 application for the enforcement of or for staying proceedings 
 on an award shall in the case of an award made by an 
 arbitrator be made to the judge, (c) 
 
 Where any matter arising is not specially provided for 
 under the rules, the rules made under the County Court 
 Act, 1888, are to govern the procedure, {d) 
 
 When a party acts by a solicitor, service of any order or 
 notice may be made by or upon such solicitor, in accord- 
 ance with the provisions of Order xxiii., r, 6, and Order 
 
 (o) S. 10 (2). Ante,M1. 
 (6) Ante, 336. 
 
 (c) W. 0. E. 1907, r. 31. Post, 731. " The proper oonstruotion to place 
 upon the rules . . is that, so far as the County Court rules apply to 
 arbitrations, they are to apply to arbitrations under this Act " : per Smith, 
 L.J., Mountain v. Parr, [1899] 1 Q. B. 805. 
 
 (d) W. 0. E. 1907, r. 80. Post, 762. 
 
632 
 
 Worhmen's Compensation Act, 1906 
 
 Chap. X. 
 
 Arbitration. 
 
 Submission to 
 pay. 
 
 liv., rr. 1 and 3 to 6, and Order vii., r. 40, (a) of the County 
 Court Eules, 1903. (J) 
 
 When the day is fixed for proceeding with an arbitra- 
 tion before an arbitrator appointed by the County Court 
 judge, the registrar of the County Court is to send notice 
 to the parties (c) ; and thenceforth the arbitration shall 
 proceed in the same manner as in an arbitration before the 
 judge. (5) 
 
 If before the day appointed for the arbitration the 
 respondent submits to pay a specified weekly sum, the 
 judge may make an award for the same; (e) or if the respon- 
 dent has paid money into Court further proceedings shall 
 be stayed, and if an agreement is come to as to the appor- 
 tionment and application of that sum an application may 
 be made to the judge himself, in or out of Court, with the 
 consent of all parties, forthwith to make an award for such 
 apportionment and application. (/) 
 
 In any other case the arbitration may proceed as 
 between the applicant and the other respondents, [g) 
 
 The applicant may accept a payment in satisfaction 
 in the Form 18 in the Appendix. Qi) The judge may also 
 order the respondent who has paid money into Court to pay 
 costs, but the applicant must give notice of his intention in 
 his notice of acceptance. (*) This requisite, however, may be 
 dispensed with in an emergency, {k) If the applicant does 
 not accept, but elects to go on, the judge has a discretion as 
 
 (a) As to substituted service. 
 
 (6) W. C. E. 1907, r. 78. Post, 762. 
 
 (c) W. 0. B. 1907, r. 14. Post, 720. 
 
 (d) W. 0. B. 1907, r. 31 (1). Post, 731. 
 
 (e) W. 0. B. 1907, •:. 18, (5) (a). Post, 724. 
 
 (/) lb. (6) (i). W. C. E. 1907, r. 31 (2) (a). {3) lb. (6) (ii). 
 
 (^ W. C. B. 1907, r. 18 (3), (4). Post, 723. 
 
 (i) W. C. E. 1907, 1'. 18 (5) (0). (fe) lb. (d). 
 
Procedure 633 
 
 to costs, and may give costs subsequent to the admission of Chap. X. 
 liability to the respondent, (a) Arwt^n. 
 
 In the case of an award made by an arbitrator, any 
 application for the enforcement of or for staying proceedings 
 on the award is to be made to the judge. (6) 
 
 The award of the judge must be in writing, sealed, filed 
 and served on all persons affected thereby, and enforceable 
 in the same manner as a judgment or order of the Court, (c) 
 
 An arbitration may be stayed where several applicants 
 are proceeding against the same respondent in the same 
 Court in respect of matter arising in the same circumstances, 
 pending the hearing of a test case, (d) 
 
 The respondent replies to the application for arbitration Answer. 
 by his answer. The answer may involve the admission 
 that a claim for compensation has been made, as in Lowe ■;;. 
 Myers (e) ; but it need not be in writing. 
 
 If the respondent desires to disclaim any interest in the Disclaimer of 
 
 ■'• "^ iDterest in 
 
 subject-matter of the arbitration, or intends to dispute his arbitration. 
 liability to pay compensation, he must, ten clear days at 
 least before the day fixed for proceeding with the arbitration, 
 file this with the registrar, stating the name and address of 
 his solicitor (if any), and that he disclaims any interest in 
 the subject-matter of the arbitration ; or stating in what 
 respect the applicant's particulars are inaccurate or incom- 
 plete, 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. (/) The observance of this rule, at least 
 
 (a) W. 0. R. 1907, r. 18 (7). 
 (6) W. C. B. 1907, r. 31 (2) (b). Post, 731. 
 (c) W. C. E. 1907, r. 28 (1). Post, 729. 
 (0) W. C. B. 1907, i-. 16. Post, 721. 
 (e) [1906] 2 K. B. 265. 
 (/) W. 0. E. 1907, r. 17 (1). Post, 721. 
 BE.L. 2 T 
 
634 Workmen's Compensation Act, 1906 
 
 Chap. X. in the Southwark County Court in Judge Addison's time, 
 Arbitrstion. had an important bearing on the question of costs. In that 
 Court in a case where no answer was put in and the only 
 point was the amount of the award on the taxation of costs, 
 the respondents objected to the costs of the applicant and 
 his witnesses who were not called. On the part of the appli- 
 cant it was urged that he could not be expected to wait 
 until fiye days t before the hearing of an arbitration before 
 he subpoenaed witnesses. To this his Honour replied, " That 
 is the fault of the rule. When you did not get an answer at 
 the end of five days f you were entitled to take it that it 
 was an undefended action, and you should have counter- 
 manded the subpoenas. Then you would be allowed the 
 costs you had incurred in summoning your witnesses and 
 countermanding them, but ouly in those cases where you 
 were compelled to summon witnesses before the five days.f 
 That would be a question for the learned registrar." " My 
 ruling is that the costs of any witnesses that prove anything 
 which is admitted before the five daysf preceding an 
 arbitration — and everything, under this Act, in the appli- 
 cant's particulars which is not denied is to be taken as 
 admitted by the respondents — cannot be allowed. But 
 where a witness must be summoned before the five days f in 
 order to secure his atten4ance, if at the last moment his 
 attendance is not needed, all reasonable costs of summoning 
 him and of countermanding the subpoena must be allowed. 
 In other words, the principle of the rule is that a person 
 must not get up his case until the issue is determined ; and 
 that need not be done until five days t before the hearing, 
 and he cannot be allowed costs incurred before that, except 
 under exceptional circumstances." (a) 
 
 t Under the original rule — now altered to " ten days." Possibly the 
 alteration was made to meet the suggested hardship of such a case as 
 that in the text. 
 
 (a) Times newspaper, 31st January, 1899, 
 
Procedure 635 
 
 By rule 17 (4) (a) there is power for the County Court Chap. X. 
 judge to amend. Kr^>^^.. 
 
 In the Shoreditch County Court, in the case of Sil- 
 vester V. Cude, (6) the County Court judge refused to allow 
 the respondent to avail himself of a point he desired to 
 raise, but of which he had not given the notice required by 
 rule 17, and, further, refused to adjourn the arbitration so 
 that the respondent might file an answer. 
 
 On appeal, Smith and Eigby, L.JJ., were of opinion 
 that "where the respondent failed to file an answer, the 
 County Court judge might take either of the courses 
 mentioned in the rule, but that he was not bound to take 
 either. There seemed to be nothing compulsory in the 
 rule." Williams, L.J., " did not think it was necessary 
 in this case to determine the meaning o'f the rule." The 
 appeal was dismissed on " a finding of fact " by the judge. 
 " But he (Williapis, L.J.) wished not to be taken as agreeing 
 that where the rule applied the County Court judge had 
 jurisdiction to do anything except one or other of the two 
 things mentioned in the rule." 
 
 Where a County Court judge becomes arbitrator (i.e. in what county 
 
 Court judge to 
 
 the absence of agreement), the judge of the district in »<='• 
 which all the parties reside, or, if they reside in different 
 districts, the judge of the district in. which the accident to 
 be arbitrated upon arose, is the arbitrator designated by the 
 Act, but without prejudice to any transfer in manner pro- 
 vided by rules of Court. The rules of Court provide that if 
 a judge is satisfied by any party to any matter under the 
 Act pending in his Court that it can be more conveniently 
 proceeded with in any other Court in England, Scotlalid or 
 Ireland, he may order the transfer, (c) and the transfer is 
 
 (a) W. 0. R. 1907. Post, 722. (6) 15 T. L. R.'434. 
 
 (c) W. 0. E. 1907, r. 75. Post, 761. 
 
636 
 
 Workmen's Compensation Act, 1906 
 
 Chap. X. 
 
 Arbitration. 
 
 Officers of the 
 County Court 
 render their 
 
 Cost of 
 interrogatories. 
 
 Payment of 
 County Court 
 judge's 
 nominee. 
 
 then to be made by the registrar as pointed out in the 
 rule. 
 
 Proceedings may be taken under the Second Schedule, 
 par. (11)— 
 
 (i) in the Court of the district in which all parties con- 
 cerned reside ; 
 (ii) where they reside in different districts — 
 (a) where the accident happened ; 
 (6) or in the case of a workman who has contracted an 
 industrial disease under sec. 8, in the district in 
 which he was last employed in the employment to 
 the nature of which the disease was due ; 
 (c) in the case of accident at sea — 
 
 (1) in the Court of the district where the ship was at 
 
 the happening : 
 
 (2) of the ship's port of registry ; 
 
 (3) where the workman or any of his dependants for 
 
 whom the proceeding is taken resides or reside, (a) 
 
 Where a County Court judge, or an arbitrator appointed 
 by him, is acting as arbitrator under the Act, the arbitra- 
 tion is to be dealt with as forming a part of the duties of 
 the County Court, so as to secure the services of the 
 officers. (6) Proceedings in an arbitration are to be within 
 C. C. E. 1903, Order LIU. rr. 7 & 8, and the word 
 "judge" in these rules is to include a committee and an 
 arbitrator. These rules authorize the judge to allow the 
 costs of " interrogatories and other matters required in the 
 course of the proceedings." 
 
 When the County Court judge is authorized to appoint 
 an arbitrator, and does appoint one under his authority, the 
 
 (a) Second Schedule (11). Ante, 339 ; W. C. R. 1907, r. 73. 
 
 (b) L. c. (12). Ante, 339. 
 
Procedure 637 
 
 arbitrator so appointed is to be paid in accordance with a Chap. X. 
 scale made by the Treasury, (a) The Treasury prescribe Arwtrattai. 
 four guineas a day as the rate of payment. 
 
 There is no provision for the payment of any other 
 arbitrator than one appointed by the County Court judge. 
 With respect to his appointment, the Lord Chancellor may 
 by general order with respect to any Court authorize the 
 settlement by an arbitrator appointed by the judge of 
 matters which in default of such authorization would be 
 settled by the judge. Then the judge may himself either 
 settle any such matter as it arises, or else with the approval 
 of the Lord Chancellor appoint by writing under his hand, 
 and filed in the Court, an arbitrator to settle the matter. 
 
 If no such general order is made, permission may be 
 given to the judge to appoint an arbitrator for that arbitra- 
 tion. On death or refusal to act of an arbitrator appointed 
 as above the judge may on the application of any party 
 appoint a new arbitrator. (6) 
 
 The judge shall return the copy of the request for 
 arbitration to the registrar with the appointment of the 
 arbitrator to be transmitted to him. The arbitrator is then 
 to fix the day for the arbitration, (c) and the registrar is to 
 give notice to the parties in the Forms 12 and 13. (d) 
 
 Auj arbitrator under the Act may state a case on a Case stated to 
 
 County Court 
 
 question of law for the decision of the County Court Judge, 
 judge («) of the district in which all the parties reside, or, 
 
 (a) S. 10 (2). Ante, 317. 
 
 (b) W. C. B. 1907, r. 29|(a), (b), (c), (d). Post, 730. 
 
 (c) W. C. R. 1907, r. 30. Post, 730. 
 
 (d) W. 0. R. 1907, r. 14 (1), 720. 
 
 (e) Second Schedule (4). Ante, 336. The words are " if he thinks fit." 
 Under these the judge's discretion is only to see whether the facts bring 
 the case within the reason of any rule or course of practice ; if they do, it 
 is obligatory to follow it— The Queen v. Boteler, iB.&S. 959. Ante, 588, 
 as to what is judicial discretion. 
 
638 
 
 Workmen's Compensation Act, 1906 
 
 Chap. X. 
 
 Arbitration. 
 
 Default of 
 appearance. 
 
 Appeal to CouTt 
 of Appeal. 
 
 if they reside in different districts, of the district prescribed 
 by rules of Court, (a) He may not vary his award if it 
 correctly expresses the meaning of his decision, (6) but may 
 " correct any clerical mistake or error in such award arising 
 from any accidental slip or omission." (c) 
 
 In Scotland it has been held that, if a respondent fails to 
 appear, the arbitrator should not give judgment by default, 
 but should ascertain the facts, and make an award on the 
 case as proved before him.(d) The Lord Justice Clerk's 
 words are : " It is quite in the spirit of the Workmen's 
 Compensation Act that one of the parties should place such 
 confidence in the good sense and knowledge of the sheriff 
 that he should take no part in the proceedings, but leave 
 the sheriff to ascertain the facts for himself." 
 
 Though an arbitrator has no power to vary his award, he 
 may yet entertain a subsequent claim by the dependants of 
 a workman who has died from injuries in respect of which he 
 has been awarded and received weekly payment, (e) This is, 
 however, quite plain from the words of the First Schedule 
 (1) (a) (i)— " 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." 
 
 There is further an appeal to the Court of Appeal. (/) 
 As to which Smith, L.J., said in Smith v. Lanes, and 
 Y. Ey. Co. (g) : " In cases under this Act, as in appeals 
 
 (a) lb. (11). Ante, 339. 
 
 (6) Preston Banking Co. v. Win. AUsup & Sons, [1895] 1 Oh. 141. 
 
 (c) W. C. B. 1907, r. 28 (2). Post, 729. See Ohessum & Sonsv. Gordon, 
 [1901] 1 K. B. 694 ; Fritz v. Hobson (1872), 14 Ch. D. 542. 
 
 (d) United Collieries v. Gavin, 37 So. L. E. 47. 
 
 (e) O'Keefe v. Lovatt, 18 T. L. B. 57. 
 
 (/) Second Schedule (4). Ante, 336. W.C.E. 1907, rr. 71, 72. Pos«, 758. 
 
 (g) [1899] 1 Q. B. 141 at 148; and see per Smith, L.J., BumboU v. 
 Nunnery Colliery Co., Ltd., Times newspaper, 6th February, 1899; 1 
 W. C. C. 28. 
 
Procedure 639 
 
 generally from County Courts, questions of fact are not the Chap. X. 
 subject of appeal. The County Court judge has found the Arwt^. 
 facts and has relegated them to us, and we have to decide 
 any question of law arising on them." 
 
 An appeal against a refusal to enforce an award lav to Appeal som 
 
 , refusal to enforce 
 
 the Divisional Court, and not to the Court of Appeal, (a) ^^^^l^l^^i_ 
 The test to be applied was, does the County Court judge sit 
 under his statutory jurisdiction as arbitrator or by virtue of 
 his general powers as a County Court judge ; but in the Act 
 of 1906 the words " or where he [the judge] gives any 
 decision or makes any order under the Act " are added, and 
 an appeal to the Court oif Appeal is given from such 
 decision or order. The effect of this is greatly to extend 
 the jurisdiction of the Court of Appeal. For now any 
 " ancillary matter which relates to securing the amount 
 of the compensation when settled by the award " (6) is 
 a " decision " or " order under the Act," and though formerly 
 in such a case the appeal was to a Divisional Court it must 
 now be taken directly to the Court of Appeal. The test, 
 therefore, now is not whether the judge was sitting as 
 arbitrator or not, but whether he was acting under jurisdic- 
 tion given by the Act. The effect of this is to nullify the 
 decisions in Kniveton v. Northern Employers Mutual In- 
 demnity Co., (c) Morris v. Northern Employers Mutual 
 Indemnity Co., Ltd., (c?) Eigby and Co. v. Cox,(«) and 
 Gibson v. Wormald & Walker, Ltd. (/) 
 
 Any arbitrator under the Act may deal with the costs 
 of the arbitration, but the costs are not to exceed the limits 
 prescribed by rules of Court, and are to be taxed in manner 
 
 (a) BaUey v. Plant, [1901] 1 K, B. 31, n. 
 
 (b) Per Gollms, M.B., Leech v. Life & Health Assurance Association, 
 [1901] 1 K. B. 707 at 709. 
 
 (c) [1902] 1 K. B. 880. {d) [1902] 2 K. B. 165, 
 (e) [1904] 1 K. B. 358. (/) [1904] 2 K. B. 40. 
 
640 
 
 Workmen's Compensation Act, 1906 
 
 Chap. X. 
 
 Arbitration. 
 
 Judge must take 
 a note of botti 
 law and facts. 
 
 Wliere County 
 Court judge 
 refuseB to Act. 
 
 Appeal. 
 
 In Scotland 
 direction to 
 sheriff to state 
 case. 
 
 provided by the rules, and the taxation may in all cases be 
 reviewed by the judge of the County Court, (a) 
 
 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, and shall give a copy of his notes 
 signed on application. (6) 
 
 If the County Court judge refuses to do his duty, the 
 proper course is to apply to the Divisional Court under sec. 
 131 of the County Court Act, 1888. (c) 
 
 But if a claim at common law or under the Employers 
 Liability Act fails, and application is at once made under 
 the Workmen's Compensation Act, the judge becomes an 
 arbitrator, and the appeal is to the Court of Appeal, {d) 
 
 An appeal lies to the Court of Appeal from an inter- 
 locutory order of an arbitrator, e.g. staying proceedings 
 under the First Schedule, par. (3). (e) 
 
 An appeal lies from the Court of Appeal to the House 
 of Lords in England by virtue of the Appellate Jurisdiction 
 Act, 1876, sec. 3, and in Scotland by the Second Schedule 
 (17)(b).(/) 
 
 The Court of Session has refused to order the sheriff- 
 substitute to state a case as to whether injury was attribu- 
 table to " serious and wilful misconduct," since on the facts 
 as found it was apparent that no question of law on the 
 
 (a) Second Schedule (7). Ante, 336. 
 (6) W. 0. B. 1907, r. 34. Post, 733. 
 
 (c) 51 & 52 Vict. c. 43. 
 
 (d) See per Lord Shand, Hoddinott v. Newton, Chambers & Co., Ltd., 
 [1901] A. C. 49 at 59 : " The claim which was made under the Employers 
 Liability Act of 1880, which failed, suddenly became before him a claim 
 under the Workmen's Compensation Act of 1897, under which he came to 
 act as arbitrator." 
 
 (e) Now par. (4). Welland v. Q. W. fiy. Co., 16 T. L. R. 297 ; Osborn 
 V. Viokers, Son & Maxim, [1900] 2 Q. B. 91. 
 
 (/) Ante, 341. 
 
Procedure 641 
 
 construction of the Statute was raised, (a) But under sec. 9 Chap. X. 
 of the Act of Sederunt of the 3rd June, 1898, the Court of Arwt^n. 
 Session directed a sheriff to st te a case on a question 
 formally submitted to him, since t 'le question was one of, or 
 might involve, a question of law. (6) Where a case slated 
 was not in proper form, and was remitted to the sheriff for 
 amendment, the Court held that neither party was entitled 
 to costs in the appeal, (c) 
 
 At common law the authority of an arbitrator might be RevoktnK 
 
 ■' ° arbitration. 
 
 revoked at any time before the award was made, by any 
 party to the submission. If, however, the submission con- 
 tained a direct (cZ) or indirect (e) agreement to make it a rule 
 of Court, such submission was irrevocable except by leave. 
 
 The exclusion of the operation of the Arbitration Act, 
 1889, would appear to render the rules of the common law 
 applicable to an arbitration under this Act. This would 
 not extend to the procedure before a County Court judge, 
 which is provided for by the Act. 
 
 On a case stated by an arbitrator to a County Court case stated. 
 judge, the judge sits in this matter as judge, and not as 
 arbitrator. The procedure is in the nature of a case stated 
 by justices for the opinion of the King's Bench Division. 
 
 On a case stated by an arbitrator to the County Court 
 judge there is an appeal to the Court of Appeal. (/) 
 
 The procedure on the submission of a question of law to 
 the judge is the same whether the arbitrator is one agreed 
 on by the parties or appointed by the judge. The submission 
 
 (a) Glasgow & Soiith- Western By. v. Laldlaw, 2 F. 708. 
 (6) Hobbs «. Samuels & Bradley, 2 P. 744. 
 
 (c) Murnin v. Calderwood, 1 F. 634. 
 
 (d) 3 & 4 Will. IV. 0. 42, 3. 39. 
 
 (e) In re Mitchell, 21 Q. B.D. 408. 
 
 (/) Second Schedule, par. (4). A-nte, 336. 
 
642 
 
 Workmen's Oompensation Act, 1906 
 
 Chap. X. 
 
 Arbitration, 
 
 is to. take the form of a special case (a) to be signed by 
 the arbitrator. (I) On the hearing the judge may, after 
 deciding the question submitted to him, remit the case with 
 a memorandum of such decision to the arbitrator, for him.to 
 proceed in accordance with the same ; but if the decision of 
 the judge disposes of the whole matter, then he may himself 
 make an award in the arbitration, (e) The judge may 
 remit the case to the arbitrator for restatement, {d) and 
 shall have the same power over the costs as he has over the 
 costs of an arbitration. («) 
 
 Costs, 
 
 Taxation, 
 
 (5) Costs. 
 
 The costs of and incident to the arbitration, and the 
 proceedings connected therewith, are in the discretion of 
 the arbitrator. They are in all cases, whether before an 
 arbitrator or in the County Court, limited to the amount 
 prescribed by rules of Court ; and are in all cases to be 
 taxed in manner prescribed by the rules. (/ ) 
 
 The costs of and incident to an arbitration are, in default 
 of agreement between the parties, to be taxed according to 
 such one of the scales of costs applicable to actions in the 
 County Court as the judge or arbitrator shall direct. 
 The word "judge" in the rules is to include a committee 
 and an arbitrator : presumably any arbitrator under the 
 Act ; {g) and the costs awarded by a committee or arbitrator 
 must be taxed by the registrar and entered by him in the 
 register ; and are to be deemed part of the memorandum 
 
 (a) W. 0. E. 1907, i'. 32 (1). 
 
 Post, 731. 
 
 (6) lb. (3). Post, 732. 
 
 
 (c) lb. (5). 
 
 
 {d) lb. (6). 
 
 
 (e) lb. (7). 
 
 
 (/) Second Sohei, par. (7). 
 
 Ante, 336, 
 
 (g) W. C. B. 1907, r. 61 (1). 
 
 Post, 753. 
 
Procedure 643 
 
 and enforceable accordingly, (a) The committee, arbitrator Chap. X. 
 or judge dealing with the question of costs may take into costs. 
 consideration any offer of compensation proved to have 
 been made on behalf of the employer. (6) In default of 
 a direction the costs are to be taxed according to the 
 appropriate County Court scale, (c) If the subject-matter 
 of the arbitration is not a capital sum, the committee, 
 arbitrator or judge is to fix what is to be considered 
 the subject-matter of the arbitration for the purposes of the 
 taxation of costs. In default of such determination the 
 amount is to be fixed by the registrar by whom the costs 
 are to be taxed subject to review by the judge, (d) 
 
 Where the respondents have offered to submit to an offer to submit 
 
 '■ to award. 
 
 award or made a payment into court, but the applicant has 
 not signified acceptance of it, the arbitration may proceed ; 
 but if no greater sum than that offered is awarded, the 
 judge may order any costs incurred by the 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 other costs payable by the party, 
 or to be deducted from the compensation. The costs of any 
 party who has given notice of acceptance may be ordered 
 to be paid by any other party who has not given notice, or 
 to be deducted from the compensation awarded, (e) 
 
 In Coleman v. South-Eastern Ey. Co. (/) the defendants counsel's fee. 
 admitted liability but desired the Court to enter the award 
 and sanction a division of the money, to which there was no 
 
 (o) W. 0. E. 1907, i-. 62. Post, 754. 
 
 (6) lb., r. 61 (3). Op. WeUand v. G. W. Ey. Co., 16 T. L. E. 297. 
 
 (c) lb. r. 61 (1). 
 
 (d) lb. (2). Post, 753. 
 
 (e) W. 0. E. 1907, r. 18 (7). Post, 725. 
 
 (/) Times newspaper, 28th Feb., 1899; 1 W, G. C. 151. 
 
644 Workmen's Compensation Act, 1906 
 
 Chap. X. objection. On the question of costs an objection was taken 
 Costs. to counsel's fees. His Honour (Judge Addison, Q.C.) 
 
 " thought it proper that counsel should attend on such an 
 occasion, because one never knew what points might arise." 
 " He would allow the applicants all the costs of that day, 
 but not any that might have been incurred in preparing 
 the case for trial, because the defendant company had 
 admitted their liability seven days before the date of 
 the hearing of the arbitration." "The Act (probably his 
 Honour said the rules) (a) did not allow any one to recover 
 costs incurred before five days (6) of the hearing of the 
 arbitration unless in exceptional circumstances, because all 
 that was not denied up to that time had to be taken as 
 admitted." (c) 
 
 jnrisdiotion of Clatworthy V. E. & H. Green, Ltd., {d) is important 
 
 judge as to costs, with regard to the County Court judge's jurisdiction as to 
 costs. Employers having agreed with the widow of a work- 
 man who had been killed by an accident, that they were 
 liable to pay the maximum compensation, withheld payment 
 till she took out administration to the deceased. She 
 refused, and filed a request for arbitration. The employers 
 then paid the compensation into court under Workmen's 
 Compensation Eules, 1898, r. 5 (3). The applicant there- 
 upon claimed (1) costs up to the payment into court ; (2) 
 costs of the application for costs. The County Court judge 
 ordered payment of both sets of costs. The employers 
 appealed. The Court of Appeal affirmed the County Court 
 judge. Collins, M.E., said : (e) "Par. (6) of Second Sched. 
 
 (a) W. C. R. 1898, rr. 17 (1), 33. Now W. 0. E. 1907, r. 17 (1) and 
 61 (1). Post, 722 and 753 respectively. 
 
 (6) Now " ten days "— W. C. R. 1907. Post, 722. 
 
 (c) W. 0. R. 1898, r. 17 (3). The notation of the new rules is the same. 
 Post, 722. 
 
 (d) 18 T. L. R. 641. 
 
 (e) L. c. at 642. 
 
Procedure 645 
 
 to the Act (of 1897) provided that the costs of and incident Chap. X. 
 to the arbitration and proceedings connected therewith costs. 
 should be in the discretion of the arbitrator. The County- 
 Court judge clearly had jurisdiction over the costs of the 
 arbitration, and he had before him the fact that everything 
 was agreed between the parties except as to a condition 
 which ought not to have been imposed. It was not till the 
 applicant's attempt Jo obtain compensation had failed, and 
 she had been obliged to take proceedings under the Act, 
 that the employers paid the money into Court. It seemed 
 to him to be obvious that the County Court judge had a 
 discretion as to the costs up to the time of payment into 
 Court. But it was said that he had no right to order the 
 employers to pay the applicant's costs of the application 
 for costs. In his opinion, the provision as to payment of 
 money into Court operating as a stay (a) did not prevent 
 the County Court judge from giving the applicant her costs 
 up to the time of payment into Court, and also the costs of 
 her application." 
 
 The County Court judge in Welland v. G. W. Ey. Co. (6) l^^^^.^^^^^^ 
 ordered a fixed sum for costs without taxation, and the ™"=- 
 Court of Appeal maintained his order, relying on the rule (c) 
 that the judge or arbitrator in dealing with costs may take 
 into consideration any offer of compensation made by the 
 employer. In the case in question the order was for a 
 payment of £5. Had the sum awarded exceeded the limit 
 prescribed by the rules of court, the award would have 
 infringed on the statutory limitations of the arbitrator's 
 powers, (d) 
 
 (a) B. 5 (3). The notation is the same under the new rules. Post, 717. 
 (6) 16 T. L. B. 297. 
 
 (c) W. C. B. 1898, r. 83 (3). Now W. C. B. 1907, r. 61 (3). Post, 753. 
 ((2) Second Schedule, (7). Ante, 336. 
 
646 Workmen's Compemation. Act, 1906 
 
 Chap. X. Three scales of costs are given in County Courts. The 
 
 Costs. jtidge or arbitrator may direct that any one of these may be 
 
 Scales of costs, adopted. Failing any direction the taxation is to proceed 
 as if the case were a County Court action, {a) 
 
 Taxation. rjij^g registrar of the County Court has the duty, on 
 
 application made to him, of taxing the costs awarded by an 
 arbitrator agreed on by the parties, (b) Application may be 
 made to the judge to review any taxation of costs. This 
 review, unless the judge otherwise directs, is to be on the 
 evidence which has been brought in before the registrar. 
 The costs of it are in the discretion of the judge. The 
 result of the review must be entered in the register, (e) 
 
 Solicitor's coats. Where a solicitor is employed he may take out of Court 
 or receive any sum payable into Court in respect of costs as 
 if the payment was made in respect of costs in an action, {d) 
 
 In Eigby & Co. v. Cox, (e) under the old Act the County 
 Court judge had laid down a general rule that the costs of an 
 application under par. (12) of the First Schedule, to vary an 
 award or to vary an agreement registered under par. (8) of the 
 Second Schedule, should be taxed as a mere application in the 
 matter of the arbitration and not as an original arbitration 
 or proceeding, The Court of Appeal while dismissing the 
 appeal on the ground that it ought to have been brought to 
 the Divisional Court, yet intimated an opinion that the 
 general rule was improperly laid down ; and when the case 
 came before them the Divisional Court so decided. (/) The 
 judge might order this in a particular case. He was wrong 
 
 (a) W. C. E. 1907, i. 61 (1). Post, 753. 
 (6) W. G. R. 1907, r. 62. Post, 7S4. 
 (c) W. 0. R. 1907, r. 63 (1) (2) (3) (4). 
 {d) W. 0. E. 1907, 1. 64. Post, 754. 
 (e) [1904] 1 K. B. 358; 20 T. L. R. 136. 
 (/) [1904] 2 K. B. 208 ; 20 T. L. R. 461. 
 
Procedure 647 
 
 not to apply his mind to each particular and to endeavour Chap. X 
 to do that by a general direction which if he did at all coBta. 
 must be done by particular adjudication. 
 
 Under this heading security for costs may also be 
 treated. 
 
 In Hall V. Snowdon, Hubbard & Co., (a) it was contended security for 
 that an appeal under the Workmen's Compensation Act, 
 1897, should not be weighted by the liability to give 
 security for costs. Smith, L.J., giving the judgment of the 
 Court of Appeal, said : (6) " The Legislature has in no way 
 enacted that the ordinary rule- of practice of this Court as 
 to security for the costs of an appeal should be abrogated in 
 such cases. The ordinary rule of the Court is that, except 
 in applications for new trials, when the respondent can 
 show that the appellant, if unsuccessful, wOuld be unable, 
 through poverty, to pay the costs of the appeal, an order 
 for security for costs is made. What is there to take the 
 case before us out of that rule? It is clear that the 
 appellant will, be unable to pay to the respondents their 
 costs of the appeal should it be unsuccessful, and, in my 
 opinion, in this and similar cases, security should be 
 ordered. If an appellant is in a position to obtain an order ' 
 for leave to appeal in forma pauperis, he can do so, and no 
 security would then be required j but I may point out that, 
 in such a case, the respondent gets this protection — 'that an 
 appellant cannot obtain such an order without a certificate 
 from counsel that the case is a proper one for appeal." 
 Security to the amount of £15 was ordered. 
 
 In subsequent cases leave to appeal in forma pauperis 
 has been given on making an affidavit stating that the 
 appeal is not by a trades union. 
 
 (a) [1899] 1 Q. B. 593. (6) L. c. at 594. 
 
648 Workmen's Compensation Act, 1906 
 
 Chap. X. In Hall v. Snowdon, Hubbard & Co., Smith, L.J., (a) had 
 
 Costs. noticed the exception to the rule requiring security for 
 
 In case of a costs in the casc of a new trial. 
 
 new trial. 
 
 In In re an Arbitration between Harwood and Abra- 
 hams, (b) the contention was advanced that an appeal under 
 the Workmen's Compensation Act, 1897, was analogous to 
 an application for a new trial, and thus should be within 
 the exception. The Court of Appeal would not accede to 
 this. " The rule that security will not be required for the 
 costs of a new trial of an action is somewhat anomalous." 
 " There is no doubt as to the rule, but it is somewhat anoma- 
 lous, and we think that it ought not to be extended." (e) 
 
 The exception itself was challenged in Wightwick v. 
 Pope, (d) and the rule of practice originally laid down in 
 Heckscher v. Crosley (e) was abrogated, with the con- 
 currence of all the Lords Justices. 
 
 An order may accordingly in future be made for security 
 for the costs of an application for a new trial. 
 
 Award ta fa-TOur In the caso of an award in favour of the employers but 
 stliyrf"""' execution stayed, the Court refused to order security for 
 costs. The judge had in effect invited the workman to get 
 the point of law settled, and he ought to be allowed to do 
 this unconditionally. (/) But this case was subsequently 
 explained (g) to be an exception to the rule — which is that 
 security will be ordered — usually to the amount of ten or 
 fifteen pounds. 
 
 The Irish Courts adhere to their own rule of practice 
 
 {a) L. c. (b) [1901] 2 K. B. 304. 
 
 (c) Per Collins, L.J., I. c. at 305. 
 
 (d) [1902] 2 K. B. 99. (e) [1891] 1 Q. B. 224. 
 (/) Hubball V. Everitt & Sons, Ltd., 16 T. L. B. 168. 
 
 (g) Shea v. Drolenvaux and another, 19 T. L. R. 473. 
 
Procedwe 649 
 
 not to order security for costs on the ground of poverty Chap. X. 
 alone, (a) costB. 
 
 The respondent to an appeal is allowed to appear in 
 forma pauperis- to resist the appeal without production of 
 the opinion of counsel, (b) 
 
 The fact that a trades union is conducting the case on 
 behalf of an appellant does not absolve from the necessity 
 of giving security for costs. "The fact that the union had costs m 
 paid the costs in the County Court is no ground for sup- ^^^ '"'* 
 posing that they will pay them in the Court of Appeal." (e) 
 
 The costs as between the employer and the workman 
 are provided for by the Second Sched., par. (7). (d) We 
 are now to deal with the costs as between solicitor and 
 client under par. (14), (e) noting by way of parenthesis 
 par. (13) that no Court fee except such as may be pre- 
 scribed under First Sched,, par. (15), 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. 
 
 Three courses seem indicated (whether or not they were 
 contemplated) here : — 
 
 (1) An award of costs by the arbitrator on the hearing ; 
 
 or at a new arbitration entered on to settle what 
 the costs should be. 
 
 (2) An application to the County Court judge after 
 
 the registration of a memorandum has made the 
 award enforceable as a County Court judgment ; 
 or perhaps an application to him in " any other 
 matter," within par. (9). (/) 
 
 (a) Stormont v. Workman, Clark & Co., 33 Ir. T. L. newspaper, 165, 
 where is an article contrasting the practice of the two countries. 
 
 (i) Handford v. George Clarke, Ltd., [1907] 1 K. B. 181, 
 
 (c) McLaughlin v. Clayton ; Haddock v. Humphreys, 1 W, 0. C. 116, 
 117. 
 
 {d) Ante, 336. («) Ante, 340. 
 
 (/) Ante, 337. 
 
 B.E.L. 2 U 
 
650 Workmen's Compensation Act, 1906 
 
 Chap. X. (3) An award of costs by the County Court judge 
 
 costB sitting in the arbitration. 
 
 In any case the costs awarded must be subject to 
 taxation, (a) 
 
 The arbitrator or the County Court judge (6) would 
 thus either award the costs between solicitor and client to 
 be taxed ; or would award costs not to exceed such an 
 amount, subject to a further reduction on taxation if the 
 costs properly incurred were shown not to amount to the 
 sum provisionally awarded, or would award a sum which 
 notwithstanding may be carried in and reduced on taxation 
 either apparently if it transcends the notion of what the 
 taxing officer looks on as suitable or the scale of costs 
 prescribed by the County Court Eules. But in the event 
 of the judge awarding a sum for costs, and the registrar 
 disallowing a portion of it, there is an appeal to the judge 
 who may set up the original amount, if that amount is not 
 in excess of the costs prescribed by rules of Court, (e) 
 
 The costs given by a committee or an arbitrator other 
 than one appointed by the judge of County Courts are 
 now limited by the rules of Court and are to be taxed in 
 the manner prescribed by the rules, and there is an appeal 
 from the taxation to the judge of the County Court. (cZ) 
 
 The procedure is probably modelled on that of the last 
 sentence of sec. 118 of the County Court Act, 1888, (e) 
 omitting the necessity for an application by either the 
 
 (a) Second Sohed., (7). Ante, 886. 
 
 (6) And by par. (8) " the arbitrator appointed by the Coimty Court 
 judge shall, for the purposes of this Act, have all the powers of that judge." 
 Ante, 336. 
 
 (c) Second Sohed., par. (U). 
 
 (d) lb., par. (7) ; W. 0. B. 1907, r. 61. 
 
 (e) 51 & 53 Vict. o. 48. 
 
Procedure 651 
 
 solicitor or the client, and adding the obligation of a Chap. X. 
 taxation in every case. 
 
 •' Costs. 
 
 By Second Sched., par. (14), the solicitor or agent of 
 a person to whom any sum of compensation is awarded is 
 not entitled to recover from him or to deduct from the sum 
 awarded any amount whatever for his costs, except such 
 sum as the committee, arbitrator or County Court judge 
 may award, (a) Where the sum awarded as compensation 
 has been awarded by a committee or an arbitrator agreed 
 on by the parties the application is to be made to such 
 committee or arbitrator. (6) The award is to be subject to 
 taxation and to the Court scale of costs, (c) 
 
 Where the arbitration is in the County Court or before 
 an arbitrator appointed by the judge of the County Court, 
 application should be made to the judge or arbitrator " at or 
 immediately after the hearing of the arbitration." (cZ) If 
 made at a subsequent date it must be before the judge in 
 court after notice in accordance with rule 48, (e) and where 
 a sum has been agreed as compensation, application should 
 be made to the judge. (/) 
 
 The taxation is by the registrar, who shall record a taxation, 
 memorandum of such order and amount in the register in 
 which the sum payable as compensation is recorded. The 
 person liable to pay compensation is not liable for costs to 
 a greater extent than the compensation, or to pay an 
 instalment larger than he is liable to pay for compensation. 
 In case of default execution may issue, payment under 
 which shall be ]pro tanto a discharge against the person 
 entitled to such compensation, {g) 
 
 (a) Ante, 340 ; W. C. E. 1907, r. 65 (7). Post, 755. 
 (6) lb. r. 65 (2). (c) lb. (8). {d) lb. (3) (a). Post, 755. 
 
 (e) Post, 742. (/) W. C. E. 1907, r. 65 (4). 
 
 ig) W. 0. K. 1907, r. 66 (a) (b) (c) (d) (e) (f). Post, 756. 
 
652 
 
 'JVorhinen's Gompensation Act, 1906 
 
 Chap. X. 
 
 Costs. 
 
 Compensatioa 
 paid into 
 Court. 
 
 When no 
 capital Bum. 
 
 Order may be 
 made lien. 
 
 When the compensation has been paid into Court the 
 amount to which the solicitor or agent is entitled shall be 
 paid out of it to him. (a) 
 
 When the subject-matter of the arbitration is not a 
 capital sum, the committee, arbitrator or judge must 
 determine what shall be considered the amount of the 
 subject-matter for the purpose of the allowance and taxation 
 of the costs. In default of such determination the amount . 
 shall be fixed by the registrar who has to tax them, subject 
 to review by the judge, (b) 
 
 When an order for costs has been made, which may 
 declare the solicitor entitled to a lien on the amount of 
 compensation awarded, the registrar shall on application 
 tax such costs ; (e) and a copy of the order and a memo- 
 randum of the amount awarded by the registrar shall be 
 issued by the registrar for service on the party liable to 
 pay the sum awarded as compensation ; (d) and the order 
 and memorandum shall be recorded in the register, (e) 
 The party liable to pay such compensation shall on demand 
 pay to the solicitor or agent the amount to which he is 
 entitled out of the compensation, but not so that he is liable 
 to pay any amount in excess of what he is liable to pay 
 for compensation or in other instalments than those by 
 which he is liable to pay the compensation. (/) If he fails 
 to do so, application may be made to the judge after notice 
 under Eule 48, and on proof of service and demand of 
 payment an order for payment may be made, and in default 
 execution may be ordered to issue, {g) 
 
 Payment made by, or execution levied on, the party 
 
 (a) W. 0. B. 1907, r. 66 (g). Post, 756. 
 
 (6) lb. r. 65 (9). Post, 755. 
 
 (c) lb. r. 66 (a). Post, 756. (d) lb. (b). Post, 756. 
 
 (e) lb. (o). (/) lb. (d). {g) lb. (e). Post, 756. 
 
Procedure 653 
 
 liable to pay such compensation is a valid discharge to him Chap. X. 
 as against the party entitled to such compensation to the coBts. 
 amount paid or levied, (a) 
 
 It remains to consider the provisions made as to costs costs of 
 
 ^ abortive action. 
 
 when the procedure marked out by sec. 1, sub-s. (4), (6) is 
 resorted to. An action under the common law or the 
 Employers Liability Act, 1880, having been dismissed, the 
 workman by that sub-section may claim to have compensa- 
 tion assessed under the Workmen's Compensation Acts. If 
 he does the Court " 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 proceeding 
 under this Act." 
 
 The costs of the abortive action are not separately dealt 
 with unless the judge can say that the costs incurred by 
 the action are not in excess of what would have been 
 caused by the arbitration alone — an affirmation that would 
 have appeared impossible had it not been made, (c) They 
 will in the first instance be fixed in the ordinary way by 
 taxation. If then the case goes further and the judge is 
 asked to award compensation, there will be the costs of the 
 abortive action to be dealt with. So far as they are costs 
 justifiable on the ground that they were occasioned under 
 the procedure of the Workmen's Compensation Act, 1906, 
 in making out the workman's claim, they are to be 
 attributed to that and cancelled. So far as they are due to 
 the wrongfully bringing the action, they are to be deducted, 
 from the compensation awarded under the Workmen's 
 Compensation Act, 1906. 
 
 An appeal against an order for the deduction of cdsts 
 
 {a) W. C. B. 1907, r. 66 (f). 
 (6) Ante, 300. 
 
 (c) Oattennole v. Atlantic Transport Co., [1902] 1 K. B. 204 at 205 and 
 210. Judicature Act, 1890 (53 & 54 Viot.o. 44), s. 5. 
 
654 
 
 Workmen's Compensation Act, 1906 
 
 Costs, 
 
 Possible 
 difficulties, 
 
 Chap. X. lies to the Court of Appeal and not to a Divisional 
 Court, (a) 
 
 The operation of the provision as to deduction of costs 
 may prove somewhat complex — 
 
 (1) If the abortive action is tried out vi^ith a jury in 
 the High Court, by Order Ixv., r. 1, (&) the costs 
 follow the event, unless the judge shall for good 
 cause otherwise order. 
 
 (2) If the abortive action is tried without a jury in the 
 High Court, by the same rule, the costs are in the 
 discretion of the judge, (e) 
 
 (3) If the action is in the County Court, the costs are 
 to be paid by or apportioned between the parties 
 as the Court shall think just, and in default of 
 any special direction shall abide the event, {d) 
 
 The expression " may deduct," i.e. " shall be at liberty to 
 deduct," appears to confer a power : the judge shall have the 
 power to deduct ; and with the power there is the duty to 
 exercise it in suitable cases, (e) But the power must be 
 exercised on fixed principles ; and consequently where there 
 has been no misconduct on the successful respondent's part, 
 he is entitled to his costs, so far as they come within the 
 provision of the section, and entitled to the deduction of them 
 from the compensation payable. (/) 
 
 If then the employer has won a case before a jury, the 
 
 " May deduct.' 
 " At liberty to 
 deduct." 
 
 (as) Williams v. Army and Navy Auxiliary Co-operative Society, Ltd., 
 23 T. L. E. 408. 
 
 (6) E. S. 0. 1883. 
 
 (c) Adlington v. Conyngliam, [1898] 2 Q. B. 492. 
 
 (d) 51 & 52 Viot. c. 43, s. 113. 
 
 (e) Per Earl Cairns, L.C., Julius v. Bishop of Oxford, 5 App. Cas. 214 
 at 225. The Queen v. Boteler, 4 B. & S. 959. 
 
 (/) Cp. Cooper v. Whittingham, 15 Ch. D. 501 ; Jones v. Curling, 13 
 Q. B. D. 262 at 265. 
 
Procedure 655 
 
 judge will, unless good cause is shown, be bound to Chap. X. 
 determine what costs should be deducted from any com- coats. 
 pensation the judge may award under the Workmen's summary. 
 Compensation Act, 1906. 
 
 If the employer has won his case before a judge without 
 a jury, and the judge makes no order, there are no costs to 
 deduct. 
 
 If the employer has won his case in the County Court, 
 and the judge makes no order, the consideration of the 
 deduction to be made must be entered on ; but if the judge 
 does make an order, the terms of the order determine the 
 course which is to be pursued. 
 
 In the case of compensation for total or partial in- 
 capacity, the payment must be by weekly sums for not less 
 than six months, (a) so that the deduction in respect of costs 
 cannot be a lump sum deducted in the first instance, but 
 must take th,e form of a diminished payment ; or the 
 subtraction of a portion of the weekly payment determined 
 on as compensation, (b) 
 
 Where death has resulted from the injury, the compen- 
 sation is to be paid in a lump sum, (e) and thus the costs 
 may be deducted at once. 
 
 It is, however, not doubtful that, whatever the theoretical 
 distinctions may be, this jurisdiction will be exercised 
 without undue deference to refinements. Oattermole v. 
 Atlantic Transport Co. in the County Court is a shining 
 example of this, {d) 
 
 The Court has to consider and judge of the matter ; Judgment when 
 
 ■' " exercised, floal. 
 
 {a) First Sohed. (i), (b). Ante, 326 ; ib. (17). AnU, 333. 
 
 (6) Cp. W. C. B., 1907, rr. 65, 66. Post, 754. 
 
 (c) First Sobed. (1) (a) (i). Ante, 325. Second Sohed. (14). Ante, 840. 
 
 (i) [1902] 1 K. B. 204. 
 
656 Workmen's Compensation Act, 1906 
 
 Chap. X. when it has done so and is arrived at a conclusion of fact, 
 Costs. there is not any power to interfere with its exercise, (a) 
 
 drscrlminated ^^® costs rccovered and the costs which there is a 
 
 claim to deduct are not the same sum. The Court has to 
 determine " in its judgment " how much of the costs of the 
 abortive action are to be attributed to the plaintiff bringing 
 his action, and to separate these from the costs which are 
 common to the two procedures. 
 
 Taxation. In the Countv Court the taxation of the costs of the 
 
 abortive action could be undertaken at once by the 
 registrar, (&) and the result would enable the costs incurred 
 by bringing the action beyond those required to obtain an 
 award under the Act to be readily discriminated. The 
 judge could then make the actual deduction indicated. If 
 the abortive action were tried on circuit there might be 
 more difficulty. Probably when the case arises this will be 
 obviated by the adoption of a practice, like the old practice 
 of the House of Lords in awarding costs, of allowing the 
 deduction of a lump sum determined by the judge on a 
 general view of the case, and without any taxation. 
 
 The costs of the proceedings under the Workmen's 
 Compensation Act, 1906, are to be taxed in manner 
 prescribed by the Workmen's Compensation Act Eules, 
 1907, rr. 61, 62. (c) 
 
 skegga V. Keen ^ ourious poiut was raiscd in Skeggs v. Keen & Co. (d) 
 
 An action was brought under the Employers Liability 
 Act, 1880, when there was a verdict for the defendant with 
 costs. The defendant, the employer, was all along willing 
 
 (a) Cousins v. Lombard Deposit Baiik, 1 Ex. D. 404 ; Goodes v. ClufE, 
 13 Q. B. D. 694. 
 
 (6) 51 & 52 Vict. c. 43, s. 118. 
 
 (c) Second Sohed. (7). Ante, 336. W. C. B. 1907. Post, 753. 
 
 (d) Times newspaper, 21st February, 1899. 
 
Procedure 657 
 
 to compensate under the Workmen's Compensation Act, Chap. X. 
 and compensation was assessed thereunder with costs. It costs 
 was contended for the plaintiff that he was entitled to have 
 all the costs which he might have incurred had he brought 
 his claim originally under the Workmen's Compensation 
 Act set off against the costs which he was liable to pay- 
 under the Employers Liability Act. 
 
 On the other side it was said that if the applicant had 
 claimed under the Workmen's Compensation Act his claim 
 would not have been disputed ; so that but for his action in 
 proceeding under the Employers Liability Act there would 
 have been no costs. His Honour (Judge Addison, Q.C.) took 
 this view, and held " that it was the duty of an arbitrator 
 (or judge sitting as such) in applying this section (the 4th) 
 to enter upon these inquiries, so as to ascertain the costs 
 which had been caused by the proceedings under the 
 Employers Liability Act." He found as a fact that the 
 costs which the respondents had incurred had been occasioned 
 by the appellant bringing his action under the Employers 
 Liability Act, 1880. He further decided that there was no 
 jurisdiction to give the applicant costs. 
 
 The applicant then went to the Court of Appeal, (a) 
 contending that there was jurisdiction to allow the workman 
 the costs in respect of the assessment of compensation. The 
 Court decided that it was unnecessary to give a decision on 
 this point of law ; because " it was clear that considering 
 how the appellant persisted in going on with his claim 
 under the Act of 1880 " the order was a perfectly right order. 
 Eigby, L. J., however, said " the inclination of his opinion 
 was that where compensation was assessed under sec. 1, sub- 
 sec. 4 of the Act of 1897, the workman was not entitled to 
 any costs. That sub-section did not seem to him to give the 
 
 (a) Times newspaper, 19th June, 1899 ; 1 W. 0. 0. 35. 
 
658 
 
 WorhmeTi's Compensation Act, 1906 
 
 Chap. X. 
 
 Catiermole v. 
 Atlantic 
 Transport Co, 
 
 workman any suck right to costs as he would have had if 
 there had been proceedings to assess compensation under the 
 Act. The only proceeding in the case was the action under 
 the Act of 1880, which action failed. The sub-section gave the 
 judge power, in dismissing the action, to assess compensation 
 under the Act of 1897, but it did not say that the workman 
 was to have any costs in addition to the compensation," 
 
 The point, however, came up in the Court of Appeal 
 in Cattermole v. Atlantic Transport Co. (a) An action 
 was brought before Judge French in the Bow County 
 Court under the Employers Liability Act, 1880, and Lord 
 Campbell's Act, and failed. Then at the request of the 
 plaintiff compensation was assessed under sec. 1, sub-sec. 4 
 of the Workmen's Compensation Act, 1897. A certificate 
 was given for £234, and an order made that the defendant 
 should pay to the plaintiff her costs of and incident to the 
 proceedings. The employers appealed on the strength of 
 the view taken by Rigby, L.J. (b) in Skeggs v. Keen, 
 Stirling, L.J., (c) in giving the judgment of the Court, says : 
 " In Skeggs v. Keen, Eigby, L. J., stated that the inclina- 
 tion of his opinion was to that effect [*.e. that the power of 
 the judge to deal with compensation is entirely derived from 
 sec. 1, sub-sec. 4] ; but neither he nor any of the members 
 of the Court gave a decision on the point. If this con- 
 tention be well founded, the result will be that the workman 
 not only will be liable to have all costs caused by his bring- 
 ing the action instead of proceeding under the Act deducted 
 from the compensation, but will have to bear all his 
 own costs, although successful in recovering compensation ; 
 whereas, according to the ordinary practice as regards costs, 
 he ought to have the costs of successful proceedings, except 
 
 (a) [1902] 1 K. B. 204 ; M'Kenna v. United CoUieries, Ltd., 8 F. 969. 
 
 (6) 1 W. 0. 0. 35. 
 
 (c) [1902] 1 K. B. at 208. 
 
Procedure 659 
 
 in so far as they are increased by any part of those pro- Chap. X. 
 ceedings which fails, and ought to bear all costs occasioned ^^^^ 
 by such failure." " In our judgment the effect of the sub- 
 section is to leave the Court in which the action is tried full 
 liberty to exercise any power of awarding costs which it 
 may have in the action, and to confer the additional power 
 of deducting from the compensation costs caused by the 
 plaintiff bringing the action instead of proceeding under 
 the Act." " In general the Court to try such actions is a 
 County Court." "The County Court has power to deal 
 with the costs of the action, including the proceedings for 
 the assessment of compensation under sec. 1, sub-sec. 4 of 
 the Workmen's Compensation Act, 1897. If the Court in 
 which the action is tried be the High Court . . . the High 
 Court has full power to deal with costs under sec. 5 of the 
 Judicature Act, 1890. The learned judge has dismissed the 
 action, but has ordered the defendants to pay all the costs 
 of the proceedings, and has not ordered any costs to be 
 deducted from the compensation. In general this would 
 not be right ; but such an order may be justified by special 
 circumstances ; as if, for example, the judge were satisfied 
 that no costs had been caused by the plaintiff bringing an 
 action instead of proceeding under the Act. This matter 
 is one within the discretion of the judge ; it has not been 
 shown that the judge exercised that discretion on a wrong 
 principle." (a) 
 
 The certificate of the judge of the compensation awarded judge's certificate 
 given under the provisions of this section is to have the 
 effect of an award under the Act. (6) An award under the 
 Act, in order to become enforceable, has to be embodied in 
 a memorandum and sent in manner prescribed by rules of 
 Court "by the committee or arbitrator, or by any party 
 
 (a) L. c. at 210. (6) S. 1, sub-s. 4. Ante, 301. 
 
660 Worlemen's Compensation Act, 1906 
 
 Chap. X. interested, to the registrar of the County Court " ; and the 
 Costs. registrar is to record such memorandum in a special register, 
 
 without fee, and thereupon the memorandum is to be enforce- 
 able as a County Court judgment, {a) i.e. by ordinary process 
 of execution, &c. 
 
 The certificate and its registration are provided for by 
 rule 81. (6) 
 
 (6) Memoeandum. 
 
 Definition. The memorandum is the record of the decision or award 
 
 of the committee, arbitrator, or of the terms of an agree- 
 ment come to as to the compensation payable, or any weekly 
 payment varied, or any other matter decided under the 
 Act. (e) 
 
 Registration of. ■ The proceedings under the Act are to be recorded in the 
 books of the Court as other proceedings in the Court are 
 recorded, {d) There is also to be a special register kept by 
 the registrar of the County Court for the district in which 
 a workman or dependant receiving the benefit of the award 
 resides, (e) and without fee. (/) 
 
 The memorandum when registered becomes for all pur- 
 poses enforceable as a County Court judgment. The award 
 of a judge on any arbitration is enforceable as a judgment 
 without registration on being " sealed and filed " and " served 
 on all persons affected thereby " ; {g) incidentally, however, 
 registration of a memoradum becomes necessary by reason 
 
 (a) Second Schedule (9). Ante, 337. 
 (6) W. 0. B. 1907. Post, 763. 
 
 (c) Second Sohediae (9). Ante, 837. 
 
 (d) W. 0. E. 1907, r. 81. 
 
 (e) lb. r. 73 (i). Post, 759. 
 (/) Second Schedule (9). 
 
 (g) W. 0. B. 1907, r. 28. Post, 729. 
 
Procedv/re 661 
 
 of rule 81, (a) requiring that proceedings under the Act Chap. X. 
 " shall be recorded in the books of the Court in the manner MemoT^um. 
 in which other proceedings in the Court are recorded." 
 
 The requirements of the memorandum nnder the Second 
 Schedule, par. (9), are specified in r. 41. (b) Where the 
 matter is decided after a medical referee has been appointed 
 to report under par. (15), a copy of the report is to be annexed 
 to the memorandum and recorded with it. (c) If within 
 seven days after notice by the registrar to parties interested 
 of the memorandum having been received the parties do 
 not dispute its being recorded the registrar is to record it 
 without further proof, (d) Unless the registrar considers 
 that it ought not to be registered by reason of (a) the 
 inadequacy of the amount ; or (b) fraud or undue influence 
 or other improper means, (e) 
 
 In either event he is to refer the matter to the judge, inquiry. 
 and the procedure is then under r. 49. The registrar reports 
 to the judge in writing, and informs the parties according 
 to Form 41(/). An inquiry is then held, and on the 
 hearing the judge may make such order or give such 
 directions as he may think just, (g) 
 
 The judge himself has a substantive power (h) within six 
 
 months after a memorandum has been recorded of ordering 
 
 the record to be removed on proof that the agreement was 
 
 obtained by fraud or undue influence or other improper 
 
 , means, {i) and he may at any time rectify the register, (k) 
 
 If any party interested disputes the genuineness of the 
 
 (a) W. 0. E. 1907. Post, 763. See Bailey v. Plant, 17 T. L. E. U9. 
 (6) W. C. E. 1907. Post, 740. (c) lb. i:. 41 (2). (d) lb. r. U. 
 
 (e) Second Schedule (9) (d). Ante, 338. (/) W. 0. E. 1907. Post, 815. 
 (g) W. 0. E. 1907, r. 49 (4). (h) lb. (7). 
 
 (i) Second Schedule (9) (e). W. G. B. 1907, r. 50, incorporating the 
 procedure of r. 48. 
 ih) lb. (c). 
 
662 
 
 Workmen's Compensation Act, 1906 
 
 Memorandum. 
 
 What recorded. 
 
 Chap. X. memorandum or its effectiveness, and objects to its being 
 recorded within seven days of the notice of the receipt of the 
 memorandum sent out by the registrar, he shall file with 
 the registrar a notice in the Form 38 (a) that he disputes 
 the genuineness of the memorandum, or that he objects to its 
 being recorded, (h) The matter is then to be heard, (e) and 
 the judge may make such order or give such directions as 
 he may think just, (d) 
 
 It is the duty of the registrar (e) to record a memorandum 
 signed by the chairman and secretary of the committee or 
 by the arbitrator without furtlier proof of its genuineness, 
 and of these functionaries to draw up the memorandum, and 
 to procure the same to be put in train for registration. (/) 
 
 A memorandum of a verbal agreement has been held in 
 Scotland (g) within the Act, and matter to be recorded, on 
 proof of its genuineness. If the memorandum embodies an 
 agreement signed by all parties, the registrar must record 
 it without further proof, (h) If the genuineness of the 
 memorandum is disputed, unless the objection is withdrawn 
 in writing, registration shall only be by order of the judge, (i) 
 but if it is withdrawn the memorandum is to be recorded 
 without further proof. But if a consent cannot be obtained 
 any party interested may apply to the judge to order the 
 memorandum to be recorded. 
 coiiinB, M.E., in The dictum of Collins, M.K., in Field v. Longden & 
 
 Field u. Longden ' ' ° 
 
 & Sons. Sons, (h) " If the workman gave notice that he proposed to 
 
 Proof required 
 of genuineness. 
 
 Dispute as to 
 geDUinencss. 
 
 (6) W. C. E. 1907, r. 45. (c) lb. r. 48. 
 
 (a) Post, 814. 
 
 (d) lb. (d). 
 
 (e) W. C. B. 1907, rr. 43, 44. Post, 741. 
 (/) lb. r. 42 (1). Post, 741. 
 
 (g) Cochrane v. Traill (No. 3), 38 So. L. E. 848. 
 
 {h) W. C. E. 1907, r. 44. 
 
 (i) lb. rr. 46, 47, (1) (2). Post, 742. 
 
 (k) [1902] 1 K. B. 47 at 54. 
 
Procedure 663 
 
 send in for registration a memorandum of an agreement for Chap. X. 
 payment of these amounts weekly during incapacity as Memorandum. 
 compensation, and the employers were to say that there 
 was no such agreement, then it appears to me that at once 
 there would be a dispute, and a question would have arisen 
 within sec. 1, sub-see. 3," presents difficulty unless con- 
 sidered with reference to the last cited rules. They supply 
 the method for dealing with such a case. The dictum of Dictum 
 
 1 TIT n 1 • 1 considered. 
 
 the MJi. does not intimate that a party dissenting from the 
 terms of a memorandum can, without further facts, finally 
 prerent its registration, and can throw the whole matter open 
 to arbitration. His power is very manifestly limited to com- 
 pelling the matter to be brought before the judge, who will 
 decide, not on the general matter, but on the special issue 
 of the genuineness of the memorandum. If in the opinion 
 of the judge the memorandum was not a record of either 
 award or agreement, the judge would not order it to be 
 registered, and the matter would be at large. If in the 
 opinion of the judge there was such agreement, notwith- 
 standing any dissent, he would order it to be recorded. 
 Test it this way: Assume a memorandum recording an 
 actual agreement valid in all respects. The employers say 
 " there is no such agreement." Clearly there is a dispute. 
 Equally clearly not within sec. 1, sub-sec. 3. The question 
 is not " as to the liability to pay compensation," nor yet " as 
 to the amount," nor yet " as to the duration of compensation," 
 but as to the existence of the alleged agreement, (a) 
 
 The reason of the decision in Jones v. Great Central Jones ». Great 
 
 Central Ky. 
 
 Ey., (S) decided simultaneously with Field v. Longden 
 & Sons, now becomes important. Here the employers 
 
 (a) Cp. Olatworthy v. E. & H. Green, Ltd., 18 T. L. E. 641, where the 
 employers sought to attach an illegal condition to their payment. Caledon 
 Shipbuilding & Engineering Co., Ltd. v, Kennedy, 8 F. 960. 
 
 (6) 18 T. L. E. 66. 
 
664 Workmen's Compensation Act, 1906 
 
 Chap. X. presented a memorandum, which the workman refused to 
 MemoTi^um. sigu. They showed the claim and the facts that they had 
 not disputed it and had paid it for many weeks. The 
 registrar, however, refused to record it, and was supported 
 by the judge. The Court of Appeal, notwithstanding, 
 directed registration. There was, indeed, this objection 
 by the applicant — he said there was no such agreement — 
 but the facts showed that his claim was admitted — there 
 was an agreement. The memorandum was genuine, and 
 consequently no dispute, so far as material for arbitration 
 went, though matter for the judge under rr. 43 and 44. 
 Workman In the Scotch case of Dunlop v. Eanken & Blackmore, (a) 
 
 entitled to have n i ' 
 
 memorandum a Workman who had been iniured in the course of his em- 
 
 registered. •' 
 
 ployment got a letter from his employers : " We admit 
 liability under the Workmen's Compensation Act, 1897, 
 and are prepared to pay compensation at the rate of 12s. 8d. 
 during incapacity in terms thereof." 
 
 After paying for some months the employers discon- 
 tinued, on the ground that the workman was now well. He 
 thereupon applied to the sheriff for arbitration, maintaining 
 that Ixe was still disabled. The sheriff assoilzied the em- 
 ployers, but stated a case. The Court of Session held that 
 the workman had mistaken his procedure. The letter con- 
 stituted an agreement, and this the injured party was 
 entitled to have registered. Moreover, the course that the 
 workman had adopted had not superseded the agreement, 
 which it was still competent for him to get registered. In 
 Lawric v. James Lawrie V. Jamcs Browu & Co., (V) one of the terms of an 
 
 Brown & Co. ^ ' 
 
 only recorded memorandum was that the employers agreed 
 to give the workman "regular employment" at specified 
 
 (a) 4 P. 203. Colville v. Tigue, 8 F. 179 : if the sheriff thought that 
 there was no subsisting agreement, his duty was to proceed to arbitration 
 under s. 1, sub-s. 3 ; Dempster v. Wm. Baird & Co., Ltd., 45 So. L. E. 482. 
 
 (b) 45 Sc. L. B. 432. 
 
Procedure 665 
 
 work. After nearly three years' employment there was a Chap. X. 
 dispute and the workman was dismissed. The workman MemoT^um. 
 brought his action. The Court of Session held that the 
 only remedy was under the memorandum. The Court was 
 further of opinion that "regular employment" was only 
 distinguished from "occasional" or "intermittent,", and 
 as no term was fixed that the employment was necessarily 
 employment at pleasure. Lord Ardwell thought on the 
 first point that, as there was no procedure under the 
 Workmen's Compensation Act for working out such a 
 claim, if good, it was not incompetent to seek it in an 
 ordinary Court of Law. 
 
 Adopting a wrong remedy was also the vice in Fife Adopting a 
 
 r o o J wrong remedy. 
 
 Coal Co. V. Lindsay, (a) There it was admitted that the 
 memorandum had been superseded by fresh agreements, 
 but it was successfully contended that while the recorded 
 agreement remained on the register, as the workman was 
 again totally incapacitated he was still entitled to enforce 
 it. By the Act neither an agreement for.the redemption 
 of a weekly payment by a lump sum, (6) nor yet the pay- 
 ment of the sum, will exempt the person by whom the 
 weekly payment is payable from liability to continue the 
 payment unless the agreement is registered, and there is 
 the same invalidity in the case of an agreement for com- 
 pensation to be paid to a person under a disability or to 
 dependants where it is not registered, unless failure to 
 register is not due to neglect or default of the person by 
 whom the weekly payment is payable. 
 
 The only issue on an application for the registration of ""Jj^j^^^*^^ 
 a memorandum — so it has been decided in Scotland — is 
 that of genuineness. The sheriff has no power to increase 
 or diminish the amount, or to attach conditions to its 
 
 (o) [1908] S. 0. 431. (6) Second Schedule, par. (10). 
 
 B.B.L. 2 X 
 
666 
 
 Workmen's Compensation Act, 1906 
 
 Chap. X. 
 
 Memorandum. 
 
 Cochrane v. 
 Traill (No. 2). 
 
 Cammick v. 
 Glasgow Iron I 
 Steel Co. 
 
 Begisterlng 
 
 merely 
 
 minleterial. 
 
 registration. Is it genuine? is the sole question he has 
 to concern himself with, {a) " The respondents," says Lord 
 Adam, (6) " have a perfect right to dispute its genuineness ; 
 that is, as I understand, either that there was no agreement 
 at all, or that, if there was, the memorandum does not truly 
 set forth its terms." 
 
 A memorandum was sent to the sheriff clerk for regis- 
 tration, which he refused to record, because the genuineness 
 was disputed. An application was then made to the sheriff 
 for a special warrant to register the memorandum. The 
 sheriff refused to entertain the application until the appli- 
 cant had paid the expenses of a former unsuccessful action 
 in the Court of Session. The Court of Session held that 
 on an application for a special warrant to register a memo- 
 randum of agreement, the sheriff is not acting as an arbi- 
 trator under the Act, and that, therefore, an appeal would 
 not lie ; but they added an expression of their opinion that 
 the only question for the sheriff, on such an application, 
 was whether th^ agreement was genuine, (e) 
 
 In Cammick v. Glasgow Iron & Steel Co., Ltd.,(d) 
 doubt was expressed as to the correctness of the holding 
 in Cochrane v. Traill (No. 2) that an application to register 
 to the sheriff, in the exercise of his ordinary common law 
 jurisdiction, was correct. The Lord Justice Clerk explains 
 the effect of the registration of the memorandum: "The 
 placing of a memorandum of agreement on the register is 
 in the nature of a ministerial and administrative act, by 
 which, while it subsists, it can be made legally operative. 
 It in no way prejudices the rights of the parties, for a party 
 can at once apply to have the arrangement made by it 
 modified, or put an end to, if grounds can be stated for 
 
 (a) Cochrane v. Traill (No. 2), 3 P. 
 (c) lb. (No. 2), 3 F. 27. 
 
 (6) lb. (No. 3), 3 P. 1091. 
 [d) 4 P. 198. 
 
Procedure 667 
 
 doing so." " The registration can fix nothing for the Chap. X. 
 future, but can only fix what was the agreement made in Memorandum. 
 the previously existing circumstances." 
 
 Under the Act of 1897 it was decided in Binning v. Binning d. 
 
 . ° Easton. 
 
 Easton (a) that where the genuineness of an agreement was 
 disputed and the sheriff (under the Act of Sederunt of 
 3rd June, 1898, sec. 7 (a)) refused to grant a warrant for 
 the registration of a memorandum, there was no appeal, 
 because the warrant was ministerial, and the sheriff does not 
 act as arbitrator, and this was followed in Lochgellv Iron Locigeiiy iron i 
 
 ° ■' Coal Co. V. 
 
 and Coal Co. v. Sinclair. (6) Sinclair. 
 
 The registrar may not refuse to record the memorandum 
 only on the ground that through altered circumstances the 
 workman is no longer entitled to the amount of compensa- 
 tion fixed by the agreement. The way to put an end to 
 a memorandum is by showing that a new agreement has 
 been made between the parties. The registration of a 
 memorandum is different from the registration of an agree- 
 ment. The only thing material in the former is to be 
 satisfied that the record is correct — not that the agreement 
 is applicable to the present circumstances, (c) 
 
 But by the Act of 1906 ((^) where a workman seeks 
 to record a memorandum of agreement between his em- 
 ployer and himself for the payment of compensation, and 
 the employer, in accordance with rules of Court, (e) proves 
 that the workman has, in fact, returned to work and is 
 earning the same wages as he did before the accidents, 
 and objects to the recording of such memorandum, the 
 memorandum is only to be recorded, if at all, on such terms 
 
 (a) 8 F. 407. (6) [1907] S. C. 3. 
 
 (c) Blake v. Midland Ey. Co., [1904] X K. B. 503. 
 
 (d) Second Schedule, par. (9). Baird & Go. v. Stevenson, [1907] S. C. 
 1259. 
 
 (e) W. 0. R. 1907, rr. 41, 43, 43, 44, 45, 46, 47. 
 
668 Worhmen's Compensation Act, 1906 
 
 Chap. X. as the judge of the County Court under the circumstances 
 
 Memorandum, may think jUSt. (a) 
 
 Is application There is a difference of opinion whether an application 
 
 for registration . t j> j.i 
 
 a "proceeding.- to rccord a memorandum is a "proceeding tor tne recovery 
 ... of compensation." (6) In Scotland this has been conr 
 eluded in the negative, with the result that the objection 
 that there was no claim within six months of the accident 
 is not good, (c) In Mamo v. Workman, {d) however, the 
 Irish Court of Appeal held that an application to record 
 the memorandum was a proceeding for the recovery of 
 compensation under the Act, and, as in that case no claim 
 had been made within the six months, they therefore 
 refused the application. 
 
 Award enforced In Johnson V. Adshsad («) the question was raised 
 
 by judgment ■ \ / :«. 
 
 summons. whether a workman could enfotce an order made under the 
 Workmen's Compensation Act by means of a judgment 
 summons. The Second Schedule, par. (8), (/) provided that 
 the memorandum " shall for all purposes be enforceable as 
 a County Court judgment," and " nineteen out of twenty 
 judgments obtained in the County Court were enforced by 
 judgment summons." The difficulty had arisen, in the 
 opinion of Judge Bradbury, owing to the fact that, under 
 the rules and forms provided in the Workmen's Compensa- 
 tion Act, there was no form, and there was no rule which 
 dealt with procedure by judgment summons. Eule 49 
 dealt with execution as a mode of enforcing an award under 
 the Compensation Act, and there was a form given for 
 
 (a) Second Schedule, par. (9) (b). Ante, 337. 
 (6) S. 2, sub-s. 1. AnU, 301. 
 
 (c) Cochrane v. Traill, 2 F. 794. 
 
 (d) 34 Ir. L. T. R. 14. (e) 109 L. T. newspaper, 40 ; 2 W: 0. 0. 158. 
 (/) Now Second Schedule, par. (9). 
 
Procedv/re 669 
 
 execution ; but nothing about enforcing an award by means Chap. X. 
 
 of a judgment summons, (a) Memorandum. 
 
 •: Judge Yate-Lee came to the opposite conclusion in Baiieyu. piant. 
 Bailey v. Plant, (&) but was reversed on appeal, (e) The 
 governing purpose in the making of a committal order is 
 to put pressure on the debtor to make him pay the debt, 
 and is substantially civil process and not merely punitive. 
 The case was accordingly sent back to the County Court Award useif 
 
 . t ^ '11 p 1 1 in. may be sent for 
 
 ludge, who still refused to make an order, alleging two registration 
 
 ■> ° ' » & & instead of the 
 
 grounds of objection : (d) memorandum. 
 
 (1) That the provision of the Second Schedule, par. 
 (8), (e) did not apply, because, though the award 
 itself had been sent, there was no memorandum of it. 
 
 (2) That the provisions did not apply where the arbi- 
 trator was appointed by the judge, or the judge 
 acted as arbitrator. 
 
 In the Divisional Court, to which the appeal was held to 
 lie, these objections were overruled. In the opinion of the 
 Lord Chief Justice " The paragraph provided that a memo- 
 randum of the award should be accepted in order to prevent 
 the necessity of sending the more formal document. The 
 best memorandum of the award was, of course, the award 
 itself." 
 
 Where proceedings by way of judgment summons under 
 sec. 3 of the Debtors Act, 1869, (/) are taken the County 
 Court Eules are to apply, {g) But the Court has no power 
 to alter the terms or mode of payment of any sum to 
 
 (a) See per Eomer, L.^., Powell v. Main Colliery Co., [1900] 2 Q. B. 
 at 161. 
 
 (h) 109 L. T. newspaper, 254 ; 2 W. 0. 0. 160. 
 
 (c) [1901] 1 K. B. 31. {d) 17 T. L. R. 449. 
 
 (e) Now Second Schedule, par. (9). 
 
 (/) 32 & 33 Viot. o. 62. (g) W, 0. B. 1907, r. 68 (1). Post, 757. 
 
670 
 
 Worhmen's Comfensation Act, 1906 
 
 Chap. X. become payable in future under any award, memorandum 
 
 Memo^um. or Certificate, otherwise than by consent or under the First 
 
 Schedule, par. (16), whereby any weekly payment may be 
 
 reviewed at the request either of the employer or of the 
 
 workman, (a) 
 
 County Court 
 the prevalliDg 
 forum. 
 
 Committee. 
 
 Arbitration. 
 
 Refusal to 
 arbitrate. 
 
 (7) County Court Jueisdiotion. 
 
 However resolute the intention of the framers of the 
 Act may have been to eliminate formal legal procedure 
 from the ' Act, and to constitute conciliation committees 
 or private arbitrators the resort in the bulk of the cases, 
 the convenience of the County Court procedure has been 
 recognized to an extent that is almost universal. (&) Con- 
 sequently there is no need to do more than indicate these 
 alternative tribunals. 
 
 Possibly the reference to the " committee " in the Act (c) 
 may have primarily been intended to indicate the Councils 
 of Conciliation under the Councils of Conciliation Act, 
 1867. {d) 
 
 There is also power under the Arbitration (Masters and 
 Workmen) Act, 1872, (e) to conduct an arbitration mutually 
 binding. 
 
 In Scotland I have been informed that there is a 
 decision that before a matter under the Act can be enter- 
 tained by the Sheriff Court there must be a refusal to 
 arbitrate. If this were ever a possible construction, and 
 the view no doubt grew in the first instance out of the 
 
 (a) W. 0. B. 1907, r. 68 (1). 
 
 f(6) During the year 1901, according to the Parliamentary Eeturn for 
 that year, there was not a single memorandum registered of an arbitration 
 before a committee, and only thirteen by arbitrators ; while there were 
 1,289 cases decided by County Court judges, and nine by special arbitrators. 
 
 (c) Second Schedule, par. (1). Ante, 335. 
 
 (d) 30 & 31 Vict. c. 105. (e) 35 & 36 Vict. o. 46. 
 
Procedure 671 
 
 strongly emphasised intention of the authors of the Act to Chap. X. 
 dispense with legal assistance, the practice in England has county court 
 been so uniform to the contrary that such a view would ^"" 
 now be impossible to maintain. In any view the require- 
 ment of an objection to arbitration in order to found juris- 
 diction by inserting a formal and additional step in the 
 order of procedure could only increase expense. 
 
 An arbitrator, whether private or appointed under the 
 Second Schedule, par. (3), may submit any question of law 
 to the County Court judge, (a) 
 
 The iudge sits in this matter as iudare, and not as county court 
 
 •' ° . J o » judge sits as 
 
 arbitrator, as he does when himself called on to assess judge on sub- 
 mission ot 
 
 compensation under the Act. (i) The procedure is in the pjI^^j"/^"" ''^ 
 nature of a case stated by justices for the opinion of the *''"'"'"■ 
 King's Bench Division. 
 
 On a case stated by an arbitrator to the County Court case stated by 
 
 arbitrator. 
 
 judge there is an appeal to the Court of Appeal, (c) 
 
 The procedure on the submission of a question of law to 
 the judge is the same whether the arbitrator is one agreed 
 on by the parties or appointed by the judge. The sub- 
 mission is to take the form of a special case {d) to be signed 
 by the chairman and secretary of the Committee or by the 
 arbitrator, (e) On the hearing the judge may, after deciding 
 the question submitted to him, remit the case with a 
 memorandum of such decision to the arbitrator, for him to 
 proceed in accordance with such decision ; but if the 
 decision of the judge disposes of the whole matter, then he 
 may himself make an award in the arbitration. (/ ) The judge 
 may remit the case to the arbitrator for restatement, {g) and 
 
 (a) Second Schedule, par. (4). Ante, 336. 
 
 (6) Mountain v. Parr, [1899] 1 Q. B. 805. (c) AnU, 638. 
 
 (d) W. 0. B. 1907, r. 32 (1). Post, 731. (e) (3). Post, 732. 
 (/) lb. (5). (g) lb. (6). 
 
672 
 
 Workmen's Compensation Act, 1906 
 
 County Court 
 jurisdictioD* 
 
 Chap. X. shall have the same power over the costs as he has over the 
 costs of an arbitration, (a) 
 
 But save where the Committee or the arbitrator submit 
 any question of law for the decision of the judge of the 
 County Court there is no appeal from their decisions. It 
 was urged that this view gives to the arbitrator appointed 
 by the County Court judge greater immunities than the 
 judge himself has ; while the intention to assimilate his 
 functions to those of a judge is manifested by the provision 
 of par. (3) that he is to have " all the powers of that judge." 
 To this it was answered that " the legislature had before 
 them the view that proceedings under the Act were 
 generally to be by arbitration before a committee or an 
 arbitrator and not proceedings of a technical legal character. 
 The primary idea seems to have been that of an arbitration 
 not open to review, and dealt with by non-technical 
 process," and this view has prevailed. (&) But the true 
 bearings of this decision must not be mistaken. A large 
 number of the appeals from the County Courts are from 
 decisions of deputies acting for the County Court judges. 
 It is obvious that these decisions are appealable. The 
 authors of them sit indeed as arbitrators, but, though the 
 point seems verbally a fine one, they sit as deputies of 
 the County Court judges in each case and not as arbitrators 
 under the Act appointed under r. 29 (a) either by general 
 order or by r. 29 (d) for the particular matter, (c) The 
 deputy exercises the very power of the judge himself and 
 not a delegation of a portion of it. 
 
 But the County Court jurisdiction is that to which the 
 overpowering bulk of the cases come ; and here the judge and 
 
 County Court 
 Jurisdiction. 
 
 40. 
 
 (a) W. 0. K. 1907, r. 82 (7). 
 
 (6) Gibson v. Wormald & Walter, Ltd., 20 T. L, R. 452 ; [1904] 2 K. B. 
 
 (c) W. 0. R. 1907, r. 29. Post, 730. 
 
Procedure 673 
 
 the arbitrator appointed by him have all the powers " as if Chap. X. 
 the proceedings were an action in the County Court." (a) conntTcrart 
 The Court to be resorted to is the « court of the district J"'='"'="'"'- 
 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." (6) 
 
 In Eex V. Owen (c) the judge declined to ; exercise Jurisdiction. 
 jurisdiction, on the ground that the respondent lived in 
 €rlasgow, and had been served there, while the applicant 
 lived and the accident happened in Newport, in Monmouth- 
 shire, in the district of the Monmouth County Court. In 
 the view of the judge the word "district" in the clause 
 meant the district of a County Court as mentioned in the 
 County Court Acts, which only apply to England and 
 Wales. A rule calling on the judge to show cause why he 
 should not hear and determine the matter was made 
 absolute by a Divisional Court (Lord Alverstone, C.J., 
 Darling and Channell, J J.) holding that the words "if they 
 reside in different districts " are wide enough to include the 
 case of a person residing in Scotland, and that the County 
 Court judge had jurisdiction to determine the compensa- 
 tion. " I am clearly of opinion," says Lord Alverstone, Lord Aivemtone, 
 G,J.,(d) "that, where the parties are resident in different 
 districts in the United Kingdom, the Court within the 
 district of which the accident happened has jurisdiction, 
 and that the procedure as to service of proceedings being 
 effected by registered letter is applicable to the whole area 
 which is within the ambit of the Act." The same point 
 had been before the Court of Appeal in Haddock v. Fisher 
 
 {a) Second Sohed. (4). 
 
 (6) Second Sohed., par. (11). Ante, 339. The rules of Court relevant 
 are W. C. E. 1907, r. 73 (1). Post, 759. 
 
 (c) [1902] 2 K. B. 436. (d) At HI. 
 
674 
 
 Wm'hnen's Oompensation Act, 1906 
 
 County Court 
 jurisdictioD. 
 
 Transfer of 
 proceedings. 
 
 No Court fees 
 payable. 
 
 Chap. X. & Sons, (a) but no decision was given on it, as the parties 
 agreed to try in the County Court, 
 
 The judge of any court in which any matter is pending 
 may transfer it to any other court. (Jb) 
 
 Where any matter under the Act is undertaken by the 
 County Court judge, or by the arbitrator appointed by him 
 under the jurisdiction conferred by the Second Sched., 
 par. (3), the ofiBcer of the County Court thereupon becomes 
 bound to the performance of all incidental duties as if they 
 were part of the duties of the County Court, and power 
 is conferred (c) for the making of rules of practice on 
 the five judges of the County Courts appointed for the 
 making of rules under sec. 164 of the County Courts Act, 
 1888. {d) 
 
 No court fees are payable by any party in respect of 
 any proceedings under the Act prior to the award, save 
 those authorised by the First Sched., par. (15), on application 
 to the Court by both parties for an order to refer the matter 
 to a medical reference, (e) The fee is not to exceed £1, and is 
 to be calculated at the rate of Is. in the pound on twenty-six 
 times the amount of the weekly payments claimed by or 
 payable to the workman. (/) 
 
 In Ireland, the recorder of any city or town is compre- 
 hended in the expression "County Court judge," and an 
 appeal lies from the Irish Court of Appeal to the House of 
 Lords, (g) 
 
 At the hearing of any arbitration or special case the 
 judge is to make a note of any question of law raised and 
 
 (a) Times newspaper, 7th May, 1900 ; 2 W. C. 0. 43. 
 
 (b) W. 0. E. 1907, 1-. 75. Post, 761. 
 
 (c) Second Sched., par. (12). Ante, 339. (d) 51 & 52 Yiot. o. 43. 
 (e) Second Sched., par. (13). Ante, 340. 
 (/) W. C. B. 1907, i.'. 54 (9). Post, 746. 
 (g) Second Sched., par. 18. Ante, 342. 
 
Procedure 675 
 
 of the facts bearing on it and of his decision on it, and of Chap. X. 
 his decision in the arbitration or on the hearing of the case, comty comt 
 He is to supply a copy at the expense of any party requiring ''""^ 
 one, and must sign the copy, (a) 
 
 Where an award or a memorandum under Second ceitwcated copy 
 
 of award. 
 
 Sched., par, (9), or a certificate under sec. 1, sub-s. 4, has 
 been recorded and any party desires to take subsequent 
 proceeding he must first get a certified copy of the award, 
 memorandum or certificate, and must file it in the Court in 
 which he wishes to proceed, and the registrar of that Court 
 must treat it as if it had been an award made in the 
 Court, (b) 
 
 Provisions for the transfer of proceedings and the 
 transfer of money paid into Court are made by rr. 75 & 
 76, (e) under the authority of the First Sched., par. (6). 
 
 (8) Medical Examination and Medical Eefekees. 
 The power of compelling the workman to submit himself Medical 
 
 _ _ . . . . examination. 
 
 to examination by a qualified medical practitioner when a 
 notice of claim has been given by the workman {d) appro- 
 priately comes under the heading of Procedure. 
 
 There is no power at common law to compel any one 
 personally injured by accident to submit to medical 
 examination, (e) A power is given to a limited extent by 
 the Eegulation of Eailways Act, 1868 (/), which provides 
 for the making of an order that the person injured in an 
 accident on a railway may be examined by a " duly qualified 
 medical practitioner named in the order and not being a 
 witness on either side." 
 
 (a) W. 0. E. 1907, r. 34. Post, 733. (6) lb. r. 74. Post, 760. 
 
 (c) lb. (d) First Sohed., par. (4). Ante, 328. 
 
 (e) The English common law is thoroughly considered in Union Pacific 
 By. Co. V. Botsford, 141 U.S. (34 Davis) 2S0. 
 (/) 31 & 32 Vict. 0. 119, s. 26. 
 
referees. 
 
 676 Workmen's Compensation Act, 1906 
 
 Chap. X. In the case now under consideration by the provisions 
 
 Mcdicrf of the Act, the employer may (1) require the workman to 
 
 IndSediMi submit to examination so soon as he has given notice of an 
 accident. If he refuses, or in any way obstructs the 
 examination, the employer or other person may apply to 
 the judge or arbitrator to stay proceedings in the arbitration 
 until such examination has taken place, (a) (2) Again;, 
 where the workman is receiving payments under the Act 
 he may be required by the employer from time to time to 
 submit himself for examination;, with the same conse- 
 quences if he refuses. (6) The "duly qualified medical 
 practitioner" to whom the workman is to submit himself 
 for examination is practically the employer's doctor; and 
 the employer has to pay him. And (3) if after the case 
 has been referred to a medical referee the workman refuses 
 to submit himself, his right to compensation or to take or 
 prosecute any procedure or to any weekly payment is 
 suspended till the examination has taken place, (c) 
 
 The medical referee is a "legally qualified medical 
 practitioner," appointed by the Secretary of State, and paid 
 subject to the sanction of the Treasury by moneys pro-- 
 vided by Parliament and subject to regulations made by 
 the Treasury, and cannot act as referee if he has been 
 employed in the case by either party, (d) 
 
 Where the application for suspensions of proceedings or 
 weekly payments on refusal to submit to examination is 
 made to the judge, either in or out of Court, notice shall be 
 served on the workman five clear days at least before the 
 hearing of the application, unless the judge or registrar 
 shall give leave for shorter notice, (e) 
 
 (a) First Sohed., par. (4). (b) First Sohed., par. (14). 
 
 (c) lb., par. (15). (d) S. 10 (1). Ante, 317. 
 
 (e) W. 0. E. 1907, r. 55. Post, 747. 
 
Procedure 677 
 
 The rules only apply to the Act so far as it affects the Chap. X. 
 County Court or an arbitrator appointed by the judge of Medicrfliilini- 
 the County Court, and proceedings in the County Court or m°edicaf referees. 
 before any such arbitrator, (a) So that where proceedings 
 are pending before a committee or a private arbitrator the 
 application is in each case to be made to such committee or 
 arbitrator. (6) If notice of an accident has been given but 
 no proceedings are pending, the application is to be made 
 to the judge, and the costs are incidental to the arbitration 
 and in the discretion of the committee or arbitrator, (e) 
 
 In all cases outside the rules, if the fact of the requisition Arbitration 
 
 ■^ outside the rules. 
 
 having been made, or of the workman having refused to 
 comply is disputed, the disputed fact must be established 
 to the satisfaction of the arbitrator, who may require such 
 notice to be given as is reasonable in the circumstances ; 
 since he is bound by no other rules of procedure than those 
 of good sense and fairness. The objection then goes to the 
 root of his jurisdiction. He is not empowered to dispense 
 with the examination or to modify it in any way ; and after 
 proof of the facts of the requisition and the refusal, to the 
 satisfaction of the arbitrator, no further step can be taken 
 till the medical examination has been held. The rule is 
 imperative: "he shall, if so required by the employer, 
 submit himself for examination." " 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 relation to compensation 
 shall be suspended until such examination has taken place." 
 
 The expression " a duly qualified medical practitioner " Duly quaimea 
 has to be interpreted by reference to the Medical Act, pra"itio°«r. 
 
 (a) W. 0. K. 1907, r. 1 (1). Post, 715. Op. Mountain v. Parr, [1899] 
 1 Q. B. 805. 
 
 (6) W, C. R. 1907, r. 55 (2). (c) Second Sohed., par. (7). 
 
678 Workmen's Compensation Act, 1906 
 
 Chap. X. 1858, (a) which provided for a system of registration, and 
 Medidimmi. ^^^^ ^^^ words " legally qualified medical practitioner," or 
 meSrefcrees. " duly qualified medical practitioner," or any words import- 
 ing a person recognised by law as a medical practitioner or 
 mei»ber of the medical profession when used in any Act of 
 Parliament, shall be construed to mean a person registered 
 under this Act. (b) 
 
 Sec. 27 of the Medical Act, 1858, provides for the 
 publishing of a register, which is to be called " The Medical 
 Eegister," a copy of which, for the time being, purport- 
 ing to be printed and published under the direction of 
 the Medical Council, shall be evidence in all Courts that the 
 persons therein specified are registered according to the 
 provisions of this Act. (c) 
 ^nnouS ose Osbom V. Vickcrs, Sons & Maxim, (d) in the County 
 
 eSmtton.'' Court, is oue of thosc extraordinary decisions occasionally 
 met with in that forum. The applicant was injured in 
 the course of his employment, and the respondents made 
 him an allowance for some time after the accident, but 
 being advised by the medical men employed by them that 
 he had completely recovered they ceased to do so. The 
 workman, who had given no notice of action as required 
 by the Workmen's Compensation Act, 1897, sec. 2, then 
 filed a request for arbitration. The respondents took no 
 
 (a) 21 & 22 Vict. c. 90. There are various amending Acts down to 49 
 & 50 Viet. u. 48, s. 6, which provides that a registered medical practitioner 
 shall, save as in the Act is mentioned, be entitled to practice medicine, 
 surgery and midwifery in the United Kingdom, and to recover in respect 
 of such practice any expenses, charges in respect of mendicaments or other 
 appliances, or any fees to which he may be entitled. 
 
 (6) 21 & 22 Vict. c. 90, s. 34. The Court of Queen's Bench held that 
 registration to be effectual must be before action brought; Leman v. 
 Houseley, L. B. 10 Q. B. 66 ; though not necessarily at the time the 
 attendance is rendered, according to Turner v. Beynall, 14 0. B. (N. S.) 
 328. This latter case is dissented from by Lord Coleridge, C.J., and 
 Denman, J., in Howarth v. Brearley, 19 Q. B. D. 303. 
 
 (c) Cp. Pedgrift v. ChevaUier, 8 C. B. (N. S.) 240. 
 
 (d) [1900] 2 Q. B. 91. 
 
Procedwe 679 
 
 objection to the claim on the ground that no notice had been Chap. X. 
 given, but objected that, as the applicant had recovered, Medicai exami- 
 they were not liable to pay further. They then required mediraf referees. 
 him to submit himself for examination by a duly qualified 
 medical practitioner under the Act. He refused unless" the 
 respondents " would pay for the attendance at the examina- 
 tion of a medical practitioner on his behalf, as well as the 
 medical practitioner employed by them." (a) This they 
 refused to do. On the day fixed for the hearing the 
 respondents applied to the County Court judge to suspend 
 the proceedings under the rule. The County Court judge 
 ordered that the applicant should submit himself for ex- 
 amination under the rule, " on condition that the appellants 
 (the respondents) would pay the fee of one guinea for the 
 attendance at the examination of a medical practitioner on 
 the respondent's behalf." The employers appealed, and 
 their appeal was allowed. Collins, L.J., said : (6) " The coiuns, lj.'s 
 contention for the respondent [the working man] is that, "^ """' 
 having started the proceedings to obtain compensation 
 without having given any notice of the accident as required 
 by sec. 2, and the appellants not having taken any objec- 
 tion to the proceedings on that ground, the respondent is 
 entitled, in answer to the appellants' claim that he should 
 submit to a medical examination under par. (3) of the First 
 Schedule to the Act, to turn round and say that the giving 
 of a notice of the accident is a condition precedent to the 
 obligation to submit to a medical examination under the 
 section. I think that this is an impossible position for the 
 respondent to take up. . . . I do not think that the County 
 Court judge had any jurisdiction to impose upon the 
 appellants such a condition as he did." (c) 
 
 (a) L. c. at 92. (6) L. c. at 94. 
 
 (c) As to the procedure by which a suspension of the proceedings may 
 be obtained : W. 0. E. 1907, r. 55. Post, HI. Form 52. PQst, 822. 
 
680 Workmen's Compensation Act, 1906 
 
 Chap. X. By par. (4) as we have seen, (a) the employer may 
 
 Medicaiexami- require the Workman to submit himself for examination 
 medical referees, whoro the Workman has given notice of the accident, with a 
 Workman to visw to the condition of the workman beinar ascertained for 
 
 submit to .mi 
 
 examination. the purposcs of th'o assossment of compensation. The 
 workman may thereupon refuse to submit himself for medical 
 examination, otherwise than in accordance with regula- 
 tions (&) made by the Secretary of State, (c) which provide 
 that when he has given notice of accident he shall not 
 be compelled to submit to examination except at reason- 
 able hours. After the first month the workman is only 
 bound to submit himself to medical examination against 
 his will, "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 of the award as the 
 case may be (this is in the case of the award of a com- 
 mittee or arbitrator), and thereafter once in every two 
 months." This regulation is probably directed against 
 applications like that in Baird v. Kane, {d) where a worfc 
 man refused to come from Ireland to Scotland to be ex- 
 amined three times in two months without payment of his 
 expenses. It was however held that he had not refused to 
 submit himself for examination. 
 
 Maungering. Where the workman has been awarded payment of a 
 
 weekly sum it may happen that ho comes under the sus- 
 picion of malingering. The employei: may then require 
 him to submit himself to a new examination for the purpose 
 of certifying whether the weekly payment ought to stop 
 under par. (14). The workman may, however, refuse to 
 submit himself for examination to the employer's practi- 
 tioner, or may decline to be bound by the certificate he 
 
 (a) Ante, 676. (6) The regulations are given, jposi, 883, 
 
 (c) First Schedule, par, (15). Ante, 331. (d) 7 P, 461. 
 
Procedwe 681 
 
 gives. In this case he may suggest to go before the referee. Chap. X. 
 To this course both must agree and join in the application. Medicri^mi- 
 The rules require that the application " shall be accompanied meaiSif referees. 
 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." (a) This is 
 probably under that paragraph of the Schedule (15) which 
 prescribes that " rules of court may be made for prescribing 
 the manner in which documents are to be furnished or served 
 and applications made." If the workman on being served 
 with a copy of order refuses to submit himself for examina- 
 tion, his right to compensation is suspended until such 
 examination takes place. (S) Where a right to compensa- 
 tion is suspended no compensation is payable in respect of 
 the period of suspension, (e) 
 
 If the workman submits to examination by one of the Medical 
 
 certificate. 
 
 medical referees appointed under the Act (a) the certificate he 
 gives of his condition is conclusive, (e) In this certificate 
 the referee certifies " his fitness for employment, specifying 
 where necessary the kind of employment for which he is fit." 
 
 In the rules to the former Act, besides the employer, 
 "any person by whom the employer is entitled to be 
 indemnified," was mentioned as entitled to require the 
 workman to submit hirriself to examination. These words 
 are omitted in the rules as now drawn. In the case of the 
 bankruptcy of the employer the insurers are substituted for 
 him, and are to " have the same rights and remedies and 
 be subject to the same liabilities as if they were the 
 
 (a) W. 0. B. 1907, r. 54 (2). 
 
 {&) Pirst Schedule, par. (15). W. 0. R. 1907, r, 54 (5). 
 
 (c) lb. par. (20). Ante, 334. 
 
 (d) lb. par. (15). Ante, 332.- 
 
 (e) lb. par. (15). AnU, 332. 
 
 B.E.L. 2 Y 
 
682 Workmen's Compensation Act, 1906 
 
 Chap. X. employer." (a) But in any case the employer would be 
 Medic^ilTami- bound on a suitable indemnity, being tendered to him to 
 m'SiMUeferces. allow the USB of his name. The omission of the words is 
 therefore insignificant. 
 
 Thompson k This poiut is touched on by Kennedy, J., in Thompson & 
 
 Sons V. North- '^ •' J ' ' tr 
 
 En|'n"erta"co ^°^^ '"' North-Eastsm Marine Engineering Co. (6) thus: 
 " In some cases the workman recovers from the accident, and 
 the Act in contemplation of that provides for a right of 
 review of the amount of compensation ; but while giving 
 to the person entitled to the indemnity the right of having 
 the man examined, it has not, so far as I can see, given 
 to the person liable to pay the indemnity — except only 
 in the case of insurers — the right to have the amount 
 payable for compensation reviewed. It has been contendedj 
 therefore, that such a person might be liable on his indemnity 
 even after the workman was quite well, if the employer chose 
 to go on paying him compensation under his agreement. 
 The answer I think is that, according to the general law of 
 indemnity, the person indemnifying could in such a case 
 compel the employer to let him use his name in any 
 proceedings to enforce a review." (c) 
 
 Obstructs. The meaning attaching to the word "obstructs" was 
 
 before the Court in Finnic v. Duncan (S). A workman in 
 receipt of weekly payments went to Australia. He left no 
 information of his whereabouts and his solicitor denied 
 having any information about him. The Court suspended 
 the weekly payment, holding that the workman was obstruct- 
 ing his examination. 
 
 It was contended in McAvan v. Boase Spinning Co. (e) that 
 
 {a) S. 5 (1). (6) [1903] 1 K. B. 428, 487. 
 
 (c) Evans v. Cook, [1905] 1 K. B. 53; Greenwood v. Hav 
 L. B. 72. 
 
 (d) 7 P. 254. (e) 3 F. 1048 ; 88 So. L. R. 772. 
 
Procedure 683 
 
 the certificate of the medical referee is conclusive only as Chap. X. 
 to the actual condition of the workman and as to whether Me«cai exami- 
 that actual condition arose from, and is the result of, the medi?ai'?etcrcea. 
 injury. A workman was required to submit himself to a J^jHSte, how 
 medical examination. He did so, but not being satisfied '" ^^^^^^ 
 with the certificate given, he submitted himself to a 
 medical referee. The referee's report stated that the 
 workman had recovered from his injuries, and would 
 probably never be capable for hard manual labour, but 
 only for light employment, but that this disability was not 
 connected with his injuries. The Court of Session (Lord 
 Young dissenting) held that this finding was binding on 
 the arbitrator, who had no choice but to make an order 
 terminating the weekly payments which the workman had 
 been receiving under the Act in respect of an injury. This 
 is embodied in the First Schedule par. (15): that "that 
 certificate shall be conclusive evidence as to the matters 
 certified." 
 
 The conduct of the employers in Field v. Longden & Demanding 
 
 ■"• . . 1 ij i_ medical examina- 
 
 Sons (a) in demanding a medical examination was held by tionaaadmiBsion 
 Collins, M.E., (6) "a clear admission of liability by them " ; 
 he adds that with the conduct of the workman " in submitting 
 to that examination, there was conclusive evidence, if the 
 question had arisen, of the existence of an agreement." ^ 
 
 In Neaele v. Nixon's Navigation Co., Ltd,, (c) the n eagic «. 
 
 " ° . , ■,. Nixon's 
 
 workman received compensation by arrangement with his Navigation co. 
 employers. After a while, having reason to think that 
 he had recovered,' they required him to submit to an ex- ' 
 
 amination by a medical practitioner provided by them. 
 
 (o) [1902] 1 K. B. 47. (6) L- c at 55. 
 
 (c) [1904] 1 K. B. 339, with which is reported, Edwards v. Guest, Keen 
 & Kettlefolds, Ltd. 
 
684 Warkmen's Compensation Act, 1906 
 
 Chap. X. He did so submit himself, and the medical practitioner 
 MedidZ^mi- certified that he had recovered. The employers gave him 
 med°Mf?e{ereeB. notice of that Certificate and of their intention to dis- 
 continue the weekly payments to him. He thereupon 
 instituted proceedings for the purpose of having compen- 
 sation assessed. The employers then applied for a stay 
 till the workman had submitted himself for examination by 
 a medical referee. The County Court judge granted the 
 application. The Court of Appeal however overruled him. 
 The only examination that was contemplated as compulsory 
 was the examination by the medical practitioner provided 
 by the employer. If the workman is dissatisfied by that 
 he has an option to submit himself for examination to a 
 medical referee ; if he does so the decision of the referee is 
 conclusive and binding on both parties, but he is not bound 
 to submit. Since this decision the provision of the Act of 
 1906 dealing with this has been so drawn that after the 
 workman has concurred in referring his case to a medical 
 referee he may be visited with the penalty of suspension of 
 the weekly payment if he refuses to submit to the 
 examination, (a) 
 
 Is the medical In the Southwark County Court the iudge made an 
 
 report "' JO 
 
 confidential? order iu the case of Bowden v. Barron Brothers (&) for the 
 examination by a medical referee of a workman who had 
 been in receipt of a weekly payment, on an application to 
 review the same. The report was handed to the judge, and 
 he stated the purport of it. The employers' solicitor then 
 asked for a copy. This request was refused, on the grounds 
 that the reports were privileged, and only for the judge. 
 
 The learned judge's ruling, however, appears inconsistent 
 (a) First Schedule, par. (16). Ante, 832. (6) 3 W. C. C. 215. 
 
Proeedure 685 
 
 with the statutory regulations, (a) Eeg. 13 providing that Chap. X. 
 if the judge direct the parties may inspect the report. Mediclillami- 
 On an application under the rule, it is manifestly no answer medirafreferees. 
 to say that inspection could not be given on account of the 
 privileged nature of the document; though an absolute 
 one to say that inspection should not be given because a 
 direction of the judge was necessary to permit it, which 
 direction he refused to give. 
 
 Morton & Co., Ltd. v. Woodward (6) is also inconsistent Morton & co. ■.. 
 
 Woodward, 
 
 with the ruling of the judge of the Southwark County 
 Court. In the report of that case in the Law Eeports (c) 
 the report of the medical referee is set out in full. 
 
 Though the general drift of this case is that a " report " 
 under Second Schedule, par. (15), is not conclusive, there 
 are some expressions in the judgment of Mathew, L.J., 
 in this particular that would lean to that construction. 
 Probably some confusion was in the minds of the judges 
 between the effect under the Act of 1897 of the First 
 Schedule, par. (11), and Second Schedule, par. (13). Where 
 the Act provides that evidence is to be conclusive it makes 
 it so; but the duty of the medical referee to report is 
 nowhere directly or by inference raised into a power to 
 decide. 
 
 By the rules, when any matter is submitted to a 
 medical referee for report, the judge may order the injured 
 workman to submit himself for examination by the medical 
 referee in accordance with the Regulations of the Secretary 
 of State, (d) The reference is to be in writing, (e) and to 
 state the facts and a general statement of the medical 
 
 (a) Medical Referees Reg., 1898. Now i.'. 26 oE Regulations of 24th 
 June, 1907. Post.Sli. 
 
 (6) [1902] 2 K. B. 276. (c) L. c. at 277. (d) W. 0. R. 1907, r. 53. 
 (e) Regulations as to Ref.to Medical Referees, 24th June, 1907, Reg. 21. 
 
686 WorhmeifCs Compensation Act, 1906 
 
 Chap. X. evidence given on behalf of tlie parties, {a) The report of 
 Medical exami- the rofotee is also to be in writing. (6) 
 
 nation and 
 
 medical referees. Jq McAvan V. Boase Spinning Co., Ltd., (c) the appellants 
 conclusive. first Called on the respondent in the terms of the First 
 sp°innin°gCo. "^ Schedule, par. (11), to submit himself to medical examina- 
 tion, which he did, and was examined by the appellants' 
 medical man, who reported him cured. He expressed 
 himself dissatisfied with this report, and the matter was 
 then referred to the medical referee, who reported him 
 recovered, but "will probably never be able for hard 
 manual labour, but only for light employment. This dis- 
 ability is not connected with his late injuries, but is the 
 result of deficient natural vigour of constitution, together 
 with advancing years." "It cannot be doubted for a 
 moment," said the Lord Justice Clerk, "that if the 
 certificate had stated that the workman was still afiiected 
 by the accident so as to be disabled wholly or partially 
 from work, the appellants could have been compelled to 
 continue to pay compensation, and would not have been 
 allowed to lead evidence to prove that the certificate was 
 erroneous. Here, equally, I hold that the certificate 
 declaring that he has recovered from his injuries, and 
 that any disability for hard work under which he may 
 suffer is not connected with his late injuries, is conclusive 
 upon the question of his right to further compensation," 
 
 Gouriay Brothers This was foUowcd bv Gourlav Brothers V. Ferrier, (d) 
 
 D. Ferrier. •' •' ' ^ ' 
 
 where the sheriff-substitute remitted to a medical, referee 
 to report on the case of the applicant, a labourer, whose 
 eye was injured. The referee reported that the power 
 of vision of the injured man was reduced by one 
 
 {a) Regulations as to Ref . to Medical Referees, 24tli June, 1907, Reg. 21. 
 (6) lb. Reg. 28. (c) 3 P. 1048. 
 
 (d) 39 So. L. R. 453. 
 
Proced^ire 687 
 
 half through the accident, which condition would be Chap.X. 
 permanent ; that the workman would never be able for Medicai exami- 
 
 Tj> 1-1 • '!•• j.«iij. nation and 
 
 any work tor which unimpaired vision was essential, but medical referees. 
 
 was quite able to undertake his ordinary work as a 
 
 labourer. The Court held the case concluded by McAvan's 
 
 case. " In ordinary circumstances," continued the Lord 
 
 Justice Clerk, " this view would lead to a final decision ; 
 
 but in the present case, where there has beeii an injury to 
 
 the sight, there may be ground for holding that, although 
 
 the respondent is at present in no way incapacitated for his 
 
 ordinary work, there may be supervening development of 
 
 injury to eyesight ; and this seems to me to be a reasonable 
 
 contention. I would propose, therefore, that the course 
 
 should be followed which was taken in some other cases 
 
 under the Act, of keeping the case in life by awarding 
 
 a nominal weekly sum." 
 
 A judge of County Courts may, if he think fit, summons 
 a medical referee to sit with him as assessor, (a) This 
 power may be set to work on the initiative of any party 
 to the arbitration. (6) The medical referee must be one 
 of those appointed for the area comprising the district of 
 the Court in which the arbitration is pending. 
 
 (9) Employee's Indemnity under Sec, 6. 
 The case may occur of the workman being entitled to indemnity from 
 
 third person. 
 
 recover under the Workmen's Compensation Act, 1906, 
 in respect of an injury arising out of and in the course of 
 the employment; but the injury may have been inflicted 
 by some third person in such circumstances that the 
 workman has a right of action against him independently 
 of the Act. 
 
 (a) Second Sohediile, par. (5). 
 
 (6) W. 0. R. 1907, r. 52 (1). Form 45. Form 46. Post, 818. 
 
688 
 
 WorhmeTCs Compensation Act, 1906 
 
 Chap. X It is obvious that the Act never intended that the 
 
 indem^itTundcr ■'^oi'^"^*'^ '^^^ *° ^^^® * double recovcry for his injuries. 
 
 S. 6. 
 
 No doable 
 recovery. 
 
 Scope of the 
 section. 
 
 Scope of the 
 words. 
 
 If he is compensated at law, then the provision made by 
 the Act is not needed. If the provision by the Act is 
 more advantageous than compensation by law, he may 
 take the advantage most beneficial for him ; but in no 
 circumstances is he to have both damages by law and the 
 provision under the Act. (a) Yet he has his choice which 
 remedy he is to pursue. (6) If he issues a writ against 
 the actual wrong-doer, this, as a " proceeding," will disable 
 him from claiming under the Act, (c) But if he claims 
 under the Act, and compensation is paid by the employer, 
 the employer becomes relegated to all the workman's right? 
 against the wrong-doer, who would have been liable had 
 common law process been resorted to. Consequently the 
 workman loses his claim against the wrong-doer, to which 
 his employer having paid compensation becomes entitled. 
 The section gives the employer no remedy beyond what 
 he already has at law. It guards against an attempt at 
 a double recovery by the workman; and it indicates an 
 employer's resort against the wrong-doer. 
 
 The section includes all cases of "legal liability in 
 some person other than the employer," i.e. either a stranger 
 or a fellow-workman, or a workman engaged in some 
 collateral occupation. 
 
 In Thompson & Sons v. North Eastern MarineEngineering 
 Co., (d) the workman and the employer had made an agree- 
 ment for the payment of compensation without any further 
 
 (a) Op. EUiott V. Liggins, [1902] 2 K. B. 84, per Lord Alverstone, O.J., 
 at 86. 
 
 (6) S. 6. Ante, 308. 
 
 (c) Tong V. G. N. Ey. Co., 18 T. L. R. 566. See per Kennedy, J., 
 Thompson & Sons v. North Eastern Marine Engineering Co., [1903] IK.B. 
 428 at 434. 
 
 (d) [1903] 1 K. B. 428. 
 
Procedure 689 
 
 " proceedings " than notice of the accident and the claim for Chap. X. 
 compensation. It was contended that this was not enough indemni^nnder 
 to bring the case within the Act so that the employer could ^" 
 obtain indemnity under sec. 6, over against the original wrong- i 
 doer. Kennedy, J., however, was of opinion that the words of 
 the section in the Act of 1897, " If compensation be paid 
 under this Act," were decisive on this point. In the Act 
 of 1906, the point is made clearer by the substituted 
 expression: "If the workman has recovered compensation 
 under this Act the person by whom the compensation was 
 paid, and any person who has been called on to pay an 
 indemnity under the section of this Act relating to sub- 
 contracting, shall be entitled to be indemnified." 
 
 The question what is the compensation recovered what is the 
 
 compenBation 
 
 imder the Act that is sufficient to hold the workman to thatdisenutieato 
 
 further recovery? 
 
 the exercise of an option against the employer and to the 
 exoneration of the person " other than the employer " was 
 raised in Oliver v. Nautilus Steam Shipping Co. (a) At^'^^JJ^-gj^^^ 
 the time of the injury the workman, who was in receipt of ^^pp'^b co. 
 wages at the rate of £2 a week, wrote informing the 
 employers of his injury. The agent of an insurance com- 
 pany with whom the employers had insured subsequently 
 called on the workman at the infirmary and paid him at 
 the rate of £1 a week, and took from him a form of receipt 
 as in Eendall v. Hill's Dry Docks & Engineering Co. (6) 
 Subsequently all receipts were given with the words 
 " without prejudice " on them. On leaving the infirmary 
 the workman issued a writ against the defendants for 
 whom his employers were doing work when he was injured. 
 The defendants said that the plaintiff had already recovered 
 compensation against his employers and could not sub- 
 sequently claim damages against them. This view was 
 
 (o) [1903] 2 K. B. 639. (6) [1900] 2 Q. B. 245. 
 
690 Workmen's Compensation Act, 1906 
 
 Chap. X. taken by the judge at the trial and judgment was entered 
 indem^under ^o'^ *^® defendants. This was reversed in the Court of 
 ^- '■ Appeal. Eomer, L. J., did not think that it could be said^ 
 
 " that a workman must necessarily be held to have exercised 
 the option given to him as against his employers or against 
 the stranger liable merely because he has taken some 
 proceedings either at law against the stranger or under 
 the Act as against the employer. Whether the proceedings 
 would, in fact, be such as to bind the workman must 
 depend upon the circumstances of each case, including 
 a consideration of what has resulted from the proceedings, 
 and whether or not any injury will result if the pro- 
 ceedings are held not to irrevocably bind the workman." 
 Eomer, L. J., threw out the suggestion that " proceedings 
 by a workman against his employer for compensation 
 should not be held to irrevocably bind the workman in 
 the exercise of the option given him by sec. 6 unless 
 those proceedings have resulted in some compensation as 
 such being paid to and received by the workman in such 
 a manner so as to bind both parties." In the case in point 
 we have compensation paid" to and received by the workman, 
 but the L.J. vouchsafes no information what makes " such 
 a manner as to bind both parties ; " beyond holding that in 
 the case before him that standard was not attained. At first 
 glance it may not be evident why the third party troubled 
 to contest the workman's right of action against them : 
 since they would be liable to the employers for what they 
 paid to the workman, i.e. the £1 a week during disability 
 and the costs, (a) But if the direct action • were not barred 
 they were liable to common lasv damages, which in this 
 case were agreed at £375, and costs. 
 
 A question has been asked whether this sec. 6 extends 
 
 (a) Proceedings is not to be confined to legal proceedings : Page v. 
 BurtweU, [1908] 2 K. B. 758 ; Great Northern Ey. Co. v. Whitehead & 
 Co., 18 T. L. E. 816. Post, 694. 
 
Procedure 691 
 
 to cases where the employer has an action on his contract Qjj^p x. 
 with, say, the machinery manufacturers who have supplied 
 
 ,.., ,. Ill Indemnity under 
 
 him with machinery, the breakdown of which has caused «• «. 
 the injury to the workman, who yet himself would not inoMe oon- 
 
 1 . 1 « . . , tractional rights ? 
 
 have a right oi action against them. The answer is No. 
 The opening words of the section (which by the way is 
 in' a WorJcmen's Compensation Act) are, " where the injury 
 for which compensation is payable under this Act was 
 caused under circumstances creating a legal liability in 
 some person other than the employer to pay damages in 
 respect thereof," are obviously used from the point of view 
 of the workman. The employer is liable in the case put 
 to pay damages to the workman. The manufacturer is 
 liable to pay to the employer, but not to the workman, 
 and the enactment cannot be shifted from its reference to 
 the workman and to create under the Act a remedy by 
 the employer on his contract with the manufacturer. " It 
 may further be noted that all questions as to the right to 
 and amount of any such indemnity shall in default of 
 agreement be settled by action." (a) 
 
 Rule 24 (1), (b) however, provides " that where a respon- 
 dent claims to be entitled under sec. 6 he * shall file,' and 
 serve a notice of his claim in accordance with Rule 19." 
 Moreover, Form 23 (c) contains two sentences at the end : 
 one — "Take notice that if you wish to dispute the ap- 
 plicant's claim as against the respondents, or your liability 
 to the said respondents, you must afi^ear before the judge 
 . . . at the time and place mentioned in the notice" etc. 
 The other — "In default of your appearing you will be 
 deemed to admit the validity of any award made in the 
 arbitration," etc., "and your own liability to indemnify," 
 etc. (d) 
 
 (a) S. 6 (2). (&) W. C. E. 1907. Ante, 727. (c) Post, 801. 
 
 (d) Evans v. Cook, [1905] 1 K. B. 53. 
 
692 Workmen's Compensation Act, 1906 
 
 Chap. X. What, too, is the exact meaning to be attributed to 
 
 , ^ - — ^ par. (5) of Eule 24 : " Nothing in this rule shall empower 
 
 Indemoity under ^ ^ -^ ° ^ 
 
 *•*• the judge to decide (otherwise than by consent) any 
 
 question as to the liability of the third party 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 order than that the third party shall not be 
 entitled in any further proceedings between the respondent 
 and such third party to dispute the validity of the award as to 
 ■" any matter which the judge has jurisdiction to decide in the 
 arbitration as between the applicant and the respondent " ? 
 
 Two states of circumstances may arise ; the respondent 
 may not cite the person liable to indemnify. Then the 
 rule would seem otiose ; or the person liable to indemnify 
 would take no notice of the citation, and if so how can 
 the rules of the County Court straighten his rights in the 
 action which he is entitled to require to be brought ? The 
 rules, note, that may be made are only valid " so far as it 
 [the Act] affects the County Court or an arbitrator ap- 
 pointed by the judge of the County Court and proceedings 
 in the County Court or before any such arbitrator." (a) 
 Johnson v. Johuson V. Liudsay (b) illustrates the general operation 
 
 of sec. 6. Builders contracted to build a block of artizans' 
 dwellings ; certain fireproof portions of the houses were to 
 be executed by ironfounders working under an independent 
 contract with the owners. Both groups of workmen were 
 engaged upon the building at the same time, though the 
 work they were respectively engaged on was not a common 
 enterprise. Some of the ironfounders' workmen let fall 
 a bucket and injured one of the builders' workmen. It was 
 held that at common law the injured workman had a right 
 of action against the ironfounders whose men did the injury 
 
 (a) Second Schedule, par. (12). Ante, 339. (6) [1891] A. C. 871. 
 
Procedure 693 
 
 in the scope of their employment. He would also, at Chap. X. 
 common law, have had an action against the ironfounders' indemnity under 
 workmen who injured him. (a) But he would not have an °" 
 action against his employers, either at common law or 
 under the Employers Liability Act, 1880. 
 
 By this sec. 6, since the accident was " caused under how affected by 
 
 *' ^ the present Act. 
 
 circumstances creating a legal liability in some person 
 other than the employer," and arose " out of and in the 
 course of the employment" of the builders' workman he 
 becomes entitled to compensation from his employers in 
 respect of an accident under the Act; and an option is 
 given to the injured workman either to pursue his other 
 remedies or to seek compensation under the Act. 
 
 Assuming compensation to be obtained under the Act, 
 the employers are put into the place of the injured work- 
 man, so far as relates to pursuing his other remedies. They 
 have an action against (1) the ironfounders — the employers 
 of the workmen doing the injury ; (2) against the workmen 
 themselves ; and proceedings against both could be taken 
 on one writ. (6) 
 
 In a case of this sort, however, it would doubtless be 
 better for the workman to pursue his remedy by the 
 common law, whether his injury were severe or slight; 
 since by the common law he would not be limited in his 
 claim ; while the ironfounders, against whom his claim 
 would substantially be, would not unlikely be as solvent as 
 his own employers. 
 
 To illustrate the case where a complete stranger to the luustration of 
 
 . , . ... . injury done by 
 
 work has caused injury to a workman, is not so readily done » stranger. 
 
 (a) Ante, 13. 
 
 (6) Jessel, M.B., in Baglesfield v. Londonderry (Marquis of), i Ch. D. 
 693 at 708, appears under the misapprehension that this could not always 
 be done. See Whitamore v. Waterhouse, 4 0. & P. 383. 
 
694 Workmen's Compensation Act, 1906 
 
 Chap. X. by means of an actual reported decision as in the instances 
 Indemnity under j^st given, whcrc a Workman engaged in some collateral 
 occupation or a fellow-workman is concerned. An apt 
 illustration is notwithstanding not wanting. Some years 
 since a man, while working in his accustomed occupation at 
 Wimbledon, was injured by a bullet shot at the rifle ranges 
 there. Under the Act, compensation would now be payable 
 by the employer, assuming the employment was a contract 
 of service, and the employer would stand in the injured 
 man's shoes in respect of any action of trespass or negligence 
 the injured man might have against his injurer. (a) 
 
 Great Norihem Sec. 6 in the 1897 Aot was the subiect of decision in 
 
 Eailway Com- "' 
 
 ^SLtead. ^- ^- %• ^°- ^- Whitehead & Co., Ltd. (h) The defendants 
 were in the habit of sending barrels of beer by the plaintiffs' 
 line; and on the occasion of the accident they sent a van 
 loaded to be conveyed on " station to station terms," under 
 which the brewers undertook the loading and unloading. 
 While the defendants' servants were engaged in rolling a 
 barrel from the van down a plank to the platform, the horses, 
 which were unattended, started forward, and the plank, 
 which was not secured, slipped, and this caused it to spring 
 and to injure a servant of the plaintiffs. The man recovered 
 £78 lis. Zd., the amount of weekly payments under the 
 Workmen's Compensation Act, 1897; and the employers 
 claimed indemnity from the defendants, against whom their 
 workman had an action for negligence at common law, of 
 which they were subrogated to the benefits by sec. 6 of the 
 Workmen's Compensation Act, 1897. 
 
 ^proSiSg^* The negligence alleged was the non-user by the 
 Workmen's defendants' servants of the proper appliance for unloading 
 Aotl^iTs?! °" the van, and their failure to secure the plank used by them, 
 
 whetber ' 
 
 recoverable 
 
 tadtmnity (*) Stanley 13. PoweU, [1891] 1 Q. B. 86, also iUustrates the principle. 
 
 (6) 18 T. L. B. 816. 
 
. B. 6. 
 
 Procedure 695 
 
 or to look after the horses. Darling, J., held the negligence chap. X. 
 proved, and gave judgment for the sum claimed. A j„a„„';;7~„„aj,r 
 question as to the costs then arose. The plaintiffs' work- 
 man, by claiming against his employers and not against the 
 wrong-doers, had occasioned an expenditure of £10 17s. M. 
 ^ — the costs of the arbitration — which the employers were 
 ordered to pay in the arbitration. The plaintiffs now 
 claimed this from the defendants in addition to the pay- 
 ments they had made to the injured workman. This was 
 resisted, on the ground that " the claim for compensation 
 under the Act of 1897 had nothing to do with negligence 
 at all." The section "said nothing as to indemnification 
 with regard to costs," and there was "no jurisdiction to 
 deal with them." Darling, J., "did not think the em- 
 ployer would be indemnified unless he received the com- 
 pensation he had to pay and the costs he had been put 
 to"; he therefore allowed the costs. The decision seems 
 inevitable, though the form of the report is unusual. It 
 appears, superficially looked at, as if the learned judge, 
 having decided the case, gave the costs of a proceeding 
 not before him under his general jurisdiction over costs. 
 This, however, was probably not so. The claim in the 
 action was for a declaration that the plaintiffs were entitled 
 to be indemnified by the defendants, and what appears in 
 the report as an order as to costs was an integral portion 
 of the decision — that the plaintiffs were entitled to be 
 indemnified. 
 
 The consideration that the defendants are incidentally 
 made liable for costs under the Act that in no case could 
 they have had directly awarded against them, does not 
 import any hardship. By hypothesis they were wrong- 
 doers, liable to have a verdict for damages against them 
 not weighed in golden scales^-had they been originally 
 made defendants. By the procedure adopted by the workman. 
 
696 Workmen's Compensation Act, 1906 
 
 Chap. X. *te employer has a claim against them for a rigidly 
 indem^under l™ited sum, wMch, in the run of instances, would probably 
 °" *• be much less than would have been given against them 
 
 had unliquidated damages been sought. They, therefore, 
 get the . advantage of having the damages against them in 
 the form of a liquidated sum + the cost of ascertaining the 
 sum, and with the satisfaction of knowing that it has 
 actually been paid. 
 feMore'"' It may happen that compensation is payable in cir- 
 
 cumstances creating a legal liability in some person other 
 than the employer, yet where the employer is jointly liable 
 with such other person. The point then arises whether, 
 supposing the employer pays the compensation under the 
 Act, he becomes by doing so entitled to indemnity from 
 his joint tort feasor. At common law it is very clear that 
 he would not be. (a) If it were argued that under this 
 section there is a difference, and that the employer is by 
 the section invested with the rights of the workman, and 
 sues not for contribution in respect of the joint liability, 
 but as the statutory assignee of the workman's right of 
 action, limited only to the extent that the employer has 
 had to pay compensation, the answer probably is that the 
 object of the section is to enable the workman, with the 
 least delay and expense, to recover compensation, for injury 
 by accident arising out of or in the course of the employ- 
 ment, from the employer, even when the injury is caused 
 by a stranger against whom the workman has a legal 
 remedy; and that the operation of the section is not to 
 give the employer rights of indemnity where he is now 
 liable at law; but to give him a remedy over in cases 
 where before the Act he was not liable, but where by the 
 policy of the Act a liability is now imposed ; that, in short, 
 
 (a) Merryweather v. Nixan, 8 T. B. 186 ; 1 Sm. L. 0. (11th ed.) 398 ; 
 see Palmer v. Wiok Co., [1894] A. C. 318. 
 
Procedv/re 697 
 
 the statute does not create new liabilities in the case of Chap. X. 
 
 strangers, but merely regulates the method of enforcing 
 
 existing liabilities. In so far as the relation of workman 
 and employer exists, it does create new liabilities, but its 
 efifect is limited to this case. 
 
 If this view be correct, the section is only operative in snggcBtcd 
 
 ir 1 nil! 1. limitation 
 
 tnose cases where, apart trom the Act, the employer is 
 under no liability. 
 
 The action which the employer has given to him is a 
 statutory action for indemnity to the extent of the com- 
 pensation awarded and the costs reasonably incurred in 
 ascertaining it. (a) He sues on a contract implied in law 
 — a statutory contract of indemnity. 
 
 In this action he may be met with all the defences the Defences. 
 claim of the workman was open to. He may besides be 
 met with the statutory defence that the compensation has 
 not been paid under the Act, and that the claim for the 
 statutory indemnity has consequently not arisen; or that 
 the compensation if paid was not paid in discharge of any 
 liability under the Act, and that the employer is not entitled 
 to be indemnified in respect of the payment. The damages 
 will sometimes have to take the form of the present value 
 of a liability of some continuance, and will thus have to be 
 the result of an actuarial calculation. 
 
 Detention of Ships. 
 
 Now that masters, seamen, and apprentices are brought 
 under the Act it is necessary that there should be some 
 procedure which, in the case of foreign ships, may secure 
 their detention pending arrangements for the assurance 
 
 (a) Mors le Blanch r. Wilson, L. E. 8, 0. P. 227; Hammond v. Bussey, 
 20 Q. B. T). 79. See the authorities smnmarized in the note to Lampleigh 
 V. Brathwait, 1 Sm. L. C. (Hth ed.) 141. 
 
 B.E.L. 2 Z 
 
698 Workmen's Compensation Act, 1906 
 
 Chap. X. of compensation payable on their claims. Not only so, 
 but it may happen that injury may be done in dock to 
 persons working on ships or about or concerned with them, 
 and who are not seamen, but whose chance of obtaining 
 compensation may depend upon the retention of the ship 
 about which they have been working within the jurisdiction. 
 Section 11 (a) is enacted with the object of safeguarding 
 people so situated. It provides that where the owners of 
 a ship are liable to pay compensation under the Act the 
 ship may in certain circumstances be held to answer. 
 Detention. If guch a ship is fouud in any port or river of England 
 
 or Ireland, or within the three-mile limit, a judge of any 
 Court of Eecord in England or Ireland, upon it being shown 
 to him by any person applying, in accordance with the 
 rules of the Court, that the shipowners are probably liable, 
 and that none of them reside in the United Kingdom, may 
 order the detention of the ship. Any officer of customs or 
 other officer to whom the order is directed is to detain the 
 ship accordingly. The ship is to be detained until compen- 
 sation has been paid, or alternatively security given, to be 
 approved by the judge, (6) to abide the event of any pro- 
 ceedings that may be instituted, and to pay such com- 
 pensation and costs as may be awarded. The procedure is 
 set in motion by an application to the judge supported by 
 an affidavit alleging (c) that the ship is within the juris- 
 diction and that none of the owners reside in the United 
 Kingdom, and that such owners are liable to pay compen- 
 sation under the Workmen's Compensation Act, 1906, and 
 asking for an order to detain. The application may be 
 made ex parte ; (d) but if the person intending to apply for 
 
 (a) S. 11 is worked out by means of W. C. R. 1907, rr. 37, 38. 
 (6) The judge shall signify in writing, signed by him, his approval of 
 the security. W. C. R. 1907, r- S7 (7). Post, 735. 
 
 (c) Form 26. (d) W. C. R. 1907, r. 37 (3). 
 
Procedure 699 
 
 an order for detention has knowledge of the name and Chap. X. 
 address of an agent or solicitor in England authorized to 
 act for the owners or people responsible, he must give sudh 
 person such notice of the time and place at which the 
 application for an order for detention is intended to be 
 made as may be practicable in the circumstances of the 
 case, (a) Before granting the order the judge may require 
 an undertaking as to damages. (&) 
 
 The order for detention (c) is to be issued in triplicate — order. 
 one copy for the applicant and the other two copies to the 
 ofiScer named by the judge ; of these one is to be given to 
 the person apparently in charge of the ship, or if there is 
 no such person shall be nailed or affixed on the main mast, 
 and the other retained. The amount for which security is 
 to be given must be specified, (d) 
 
 The judge may rescind any order for detention, and 
 shall, if the applicant so requires, give an order of release.(e) 
 
 If a solicitor in England represents that he is authorized 
 to act for the owners and signs an undertaking, (/) the ship 
 may be released, (g) 
 
 In any legal proceeding to recover such compensation the 
 person giving security shall be made defendant ; (h) 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, (i) 
 
 Section 692 of the Merchant Shipping Act, 1894, (/c) is 
 
 {a) W. 0. B. 1907, r. 37 (9) (b). (b) E'orm 27. Post, 806. 
 
 (o) Form 28. (.d) W. 0. E. 1907, r. 37 (5). 
 
 (e) Order XXIX. of C. C. B. 1903 as to security shall apply, and also 
 ss. 108, 109, of the County Courts Act, 1888. 
 
 (/) Form 30a. Post, 808. {g) Form 30. Post, 807. 
 
 th) The subsec[uent proceedings are set out in W. C. B. 1907, i'. 87 (10), 
 (11), (12). 
 
 (i) S. 11 (2). (k) 57 & 58 Vict. o. 60. 
 
700 Workmen's Compensation Act, 1906 
 
 Chap. X. applied to the detention of a ship under the foregoing 
 
 provisions, (a) If then a ship after detention, or after 
 
 service of any detaining notice, goes to sea before it is 
 released by competent authority, the master or the 
 owner or any person who sends the ship to sea, who 
 may be privy to the offence, shall be liable to a fine 
 not exceeding £100. If any government officer in the 
 execution of his duty is taken to sea, the owner and master 
 of the ship are each liable to pay all expenses of and 
 incidental to taking the officer or surveyor to sea, or £100, 
 or a penalty not exceeding £10 a day till the return of the 
 officer or surveyor, if the offence is not prosecuted in a 
 summary manner. When a ship is to be detained the 
 customs officer is to refuse to clear that ship outwards or to 
 grant a transive to that ship. 
 
 Shipowners' There is no express power given in the Workmen's 
 
 (Remedies) Act. Compensation Act, 1906, to detain a ship which is alleged 
 to have caused an injury in respect of which an employer 
 has paid compensation and seeks to be recouped by the 
 shipowner by way of indemnity. But this power is conferred 
 by the Shipowners' Negligence (Remedies) Act, 1905. (b) By 
 s. 1, " if it is alleged that the owners of any ship are liable to 
 pay damages in respect of personal injuries, including fatal 
 injuries caused by the ship or sustained on, in or about the 
 ship in any port or harbour of the United Kingdom in 
 consequence of the wrongful act, neglect or default of the 
 owners of the ship or the master or officers or crew thereof, 
 or any other person in the employment of the owners of the 
 ship, or of any defect in the ship or its apparel or equip- 
 ment," the same procedure is to become applicable as we 
 have already noted as availing in the case of the detention 
 
 (a) S. 11 (3). (6) 5 Edw. VII. c. 10. 
 
Procedure 701 
 
 of a ship under sec. 11. The phrase "any person applying Chap. X 
 in accordance with the rules of Court " {a) which occurs in — 
 sec. 1 of the Shipowners' Negligence (Eemedies) Act, 1905, (6) 
 as well as in sec. 11, to denote the force to put the Act in 
 motion is defined thus. " The words ' person applying ' in 
 this section shall include an employer who has paid 
 compensation, or against whom a claim for compensation 
 has been made under the Workmen's Compensation Act, 
 1897, as amended by any subsequent enactment, (e) if he 
 shows the judge that he probably is or will become entitled 
 to be indemnified under that Act, and in such case this 
 section shall apply as if the employer were a person claim- 
 ing damages in respect of personal injuries." 
 
 The purview of the two provisions is different. The ship Purview of the 
 
 two Acts 
 
 may be detained under the provision of the Workmen's Com- discriminated. 
 pensation Act whenever the owners are liable in the circum- 
 stances indicated in the section " to pay compensation under 
 this Act," that is, in any case where " in any employment 
 personal injury by accident arising out of and in the course 
 of the employment is caused " to a workman. Under the 
 Shipowners' Negligence (Eemedies) Act, 1905, the ship can 
 only be detained where the cause of detention alleged is a 
 tort — personal injury caused by the ship or sustained on, 
 in or about the ship in consequence of the wrongful act, 
 neglect or default of somebody for whom the owners are 
 answerable. Moreover, the injury must have been sustained 
 in a port or harbour in the United Kingdom ; while in 
 the case of the Workmen's Compensation Act the liability 
 to pay compensation may have taken place " in a British 
 possession or in a foreign country." 
 
 (a) Ante, 318. (6) S. 1 (4). 
 
 (c) The Workmen's Compensation Act, 1897, is repealed by s. 16 (2) of 
 the Act of 1906 ; but see The Interpretation Act, 1889 .(52 & 53 Vict, 
 c. 63), B. 38. 
 
702 
 
 Workmen's Compensation Act, 1906 
 
 Chap. X. The needful adjustments by way of procedure are made 
 
 by the rules of Court, (a) 
 
 Appeal to House 
 of Lords. 
 
 Uetum to 
 Secretary of 
 State. 
 
 Existing 
 coDtractB. 
 
 G-ENEEAL Provisions. 
 
 Section 14 and Second Schedule, par. (17), deal with 
 difficulties that might otherwise arise in the application of 
 the Act to Scotland, and the latter provides for an appeal 
 to the House of Lords. On the declaration of the rule of 
 law by the House of Lords, even in an English case, the 
 Scotch judges are bound, (b) 
 
 Under sec. 9 of the Act of Sederunt of 3rd June, 1898, 
 the Court of Session directed a sheriff to state a case on a 
 question formally submitted to him, since the question 
 was, or might involve, a question of law. (c) 
 
 There is a duty imposed on every employer in any 
 industry that the Secretary of State shall direct to make 
 the return to 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 the Act during the 
 previous year and the amount of such compensation and 
 such other particulars as to the compensation as the Secretary 
 of State may direct under penalty of a fine not exceeding 
 £5. (d) Any regulations under this section are to be laid 
 before Parliament. 
 
 By sec. 15 (1) any contract (other than a contract sub- 
 stituting the provisions of a scheme certified under the 
 Workmen's Compensation Act, 1897, for the provisions of 
 
 (a) S. 7 (1) (c) (g). W. 0. E. 1907, r. 38 (i) (ii) (iii) (iv). There are 
 no rules under the Shipowners' Negligence (Eemedies) Act, 1905, issued at 
 the time of going to press (Octoher, 1908). 
 
 (6) Cp. Johnson v. Lindsay, [1891] A. C. 371. 
 
 (c) Hobbs V. Bradley, 2 F. 744. 
 
 (d) S. 12 (1). Ante, 319. 
 
ProGe3,we 703 
 
 that Act) existing at the commencement of the Act of 1906 Chap. X. 
 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 the Act be deemed to continue after the time at which 
 the workman's contract of service would determine if notice 
 of the determination thereof were given at the commence- 
 ment of the Act. 
 
 (2) Every scheme in force at the beginning of the Act 
 shall, if recertified by the Eegistrar of Friendly Societies, 
 have effect as if it were a scheme under this Act. 
 
 (3) The scheme is to be recertified if the registrar is 
 certified that the scheme conforms to the provisions of the 
 Act. 
 
 (4) But if any such scheme has not been recertified 
 before the expiration of six months from the commencement 
 of the Act, the certificate shall be revoked. 
 
 In Wallace v. E. & W. Hawthorne Leslie & Co., Ltd.,(a) waii^e ». e. & 
 the Court of Session held that until " an old scheme is Le'sue"! 0^"* 
 recertified by the Eegistrar of Friendly Societies it has not 
 effect as if it were a new scheme under the Act of 1906, so 
 far as regards workmen signing it after the commencement 
 of the Act are concerned." 
 
 The Act of 1906 came into operation on the 1st July, 
 1907. So far as relates to references to medical referees 
 and proceedings consequential thereon, it applied from that 
 date generally; but in other respects only where the 
 accident happened before the commencement of the Act. (6) 
 
 The previous Acts are repealed save as mentioned 
 above, (c) 
 
 (a) 45 So. L. B. 34T. (6) S. 16 (1). (c) S. 16 (2). 
 
APPENDIX 
 
 EMPLOYERS LIABILITY ACT, 
 
 1880 
 
APPENDIX A. 
 
 FORMS OF NOTICES NECESSARY UNDER THE EMPLOYERS 
 LIABILITY ACT, 1880. 
 
 No. 1. 
 
 Notice of Injwry through Defect in Machinery. 
 
 I, the undersigned A. B., of , in the parish of , 
 
 in the county of , being at the time hereinafter mentioned in 
 
 your employment at , as , hereby give you 
 
 notice, that on the day of , through [your negli- 
 
 gence, or the negligence of one, 0. D., a person then in your service, 
 and entrusted by you with the duty of seeing that the machinery at the 
 place aforesaid was in a proper condition], a defect in [the fly-wheel of 
 an engine (or whatever it may 6e)], being a portion of the said maohincEy, 
 was not discovered nor removed, and in consequence of which [state the 
 nature of the breakage or acddentj whereby [I was thrown violently down, 
 my leg was broken (or whatever it may be)], and otherwise seriously injured ; 
 and I claim compensation for the same [or claim to be compensated 
 
 for the said injury]. 
 
 Dated this day of 19 . 
 
 (Signed) A. B. 
 To E. F., etc. 
 
 No. 2. 
 Notice of Injury through the Negligence of a person entrusted with 
 
 I, A. B., of No. street, in the parish of , in the county 
 
 of , do give you notice that, on the day of a.d. [here 
 
 state the cause o/ the injury clearly and explicitly, so as to inform the employer 
 of the nature of the complaint, e.g.'] through the negligence of one, C. D., a 
 foreman in your employment, and who on the said day and at the 
 time of my injury herein notified had superintendence entrusted to him 
 in that behalf, and whilst in the exercise of the same a certain 
 Bcafiolding whereon I, the aforesaid A. B., was working in pursuance of 
 the directions of the said C. D., was so negligently and improperly con- 
 structed, that a plank of the same fell upon me, the said A. B., and broke 
 my leg and otherwise injured me, whereby I have been unable to foUow 
 my employment, and have sustained pain and pecuniary loss, and I claim 
 & compensation from you for the same. 
 
 Dated this day of 19 . 
 
 Yours, etc., 
 
 A. B., 
 Of No. street, in the parish of 
 
 in the county of • 
 
708 Appendix A 
 
 No. 3. 
 
 Notice of Injury coMsed through the Negligence of a Person to whose Orders 
 the Injured Servant was bound to conform. 
 
 I, A. B., of No. street, in the parish of , in the county 
 
 of , do give yon notice that, on the day of a.d. 
 
 [here state the ca/use of the injury clearly amd explicitly, so as to 
 inform the employer of the nature of the complaint, e.g.'] through the 
 negligence of C. D., a person then in your service, and to whose orders or 
 directions I was at the time aforesaid bound to conform, and did conform 
 [here specify the precise cause of injury, e.g.], plants, not sufficiently seoilred, 
 were used in a scaffolding, and acting under the orders of the said 0. D. 
 I ascended the said scaffold, in consequence of which it feU and threw me 
 down, thereby breaking my arm, 5nd otherwise seriously injured me, for 
 which injuries I claim compensation. 
 
 Dated the day of 19 . 
 
 (Signed) A. B., 
 Of No. street, in the parish of , 
 
 in the county of 
 
 No. 4. 
 
 Notice of Injury caused by acting in obedience to the Mules or Bye-Laws 
 of the Employer. 
 
 I, A. B., of No. street, in the parish of , in the county 
 
 of , do give you notice that, on the day of a.d. [here 
 
 state the cause of the injury clearly and explicitly, so as to inform the 
 employer of the nature of the complamt], through the impropriety or defect 
 in one of the rules [or bye-laws] made or approved by you and used at the 
 place aforesaid, which said rule [or bye-law] is as follows [set out rule or 
 bye-laui], and, while acting in obedience thereto by [state what doing], I 
 was in consequence of [here state the impropriety or defect in the rule or 
 bye-law] injured [here state the injury], and I claim, etc. 
 Dated day of 19 . 
 
 Yours, etc., 
 
 A. B., 
 Of No. street, in the parish of , 
 
 in the county of 
 To Messrs. B. P. 
 
 No. ih.. 
 
 Notice where Injury was caused by acting iw obedience to Particular 
 Instructions given by a Person to whom authority was delegated in 
 that behalf. 
 
 I, the undersigned A. B., of No. street^ in the parish of 
 
 , in the county of , do give you notice that, on the 
 
Forms 709 
 
 day of , A.D. {here state the cause of the htjury 
 
 elea/rly and expUcitly, so as to inform the employer of the natmre of the 
 complaint, e.gr.] through the impropriety or defect in certain particular 
 instruotiona given to me by C. D., being a person then delegated by 
 you with authority in that behalf, which said . instructions were as 
 follows : — Istate imstruotions'], and while I was acting in obedience thereto 
 by \_state what domg\ I was in consequence of \_state impropriety or defect 
 of instructions'] [state mjv/ry\, and 1 claim, etc. 
 Dated day of 19 . 
 
 Yours, 
 
 A. B., 
 Of No. street, in the parish of 
 
 in the county of 
 To Messrs. E. P. 
 
 No. 5. 
 
 Notice of Injury caused by the negligence of a person who has charge of amy 
 signal points, locofooUve engine, or tram upon a raihiiay, 
 
 I, A. B., of No. street, in the parish of , in the 
 
 county of , do giVe you notice that, on the day of 
 
 A.D. [here state the cause of the mjwry clearly and 
 
 expUdtly, so as to inform the employer of the nature of the c&mplamt, e.g.'] 
 through the negligence of 0. D., being then a person in your service, who 
 had charge or control of a locomotive engine {or signal points or train) 
 upon the railway. The said locomotive engine came into 
 
 collision with a railway truck (or whatever else may hd/ve been the immediate 
 antecedent of the injury) at the place aforesaid, whereby I was thrown 
 violently down (or other result) and otherwise seriously injured, and I 
 claim £ compensation for the same. 
 
 Dated day of 19 , 
 
 Yours, 
 
 A. B., 
 Of No. street, in the parish of 
 
 in the county of 
 To the Railway Company. 
 
 Note. — As to the person on whom this notice should be served, see 
 fourth paragraph of the seventh section of the Act. 
 
 No. 6. 
 Beadmg of Form of Notice of Injury given by Solicitor. 
 
 To Messrs. E. & P., of , •, , . t, . -.t 
 
 I do hereby, as the solicitor for and on behalf of A. B., of No. 
 street, in the parish of , in the county of 
 
710 Appendix A 
 
 labourer, give you notice that A. B., a labourer in your employment, was 
 injured \set out cause of injury, etc., after the mode indicated, in the fore- 
 going forms, taking care to specify the na/me and address of the person injured ; 
 the cause of the injury and the date at which it was sustained, with a distinct 
 claim for compensation]. 
 
 Dat^d tbe day of 19 . 
 
 (Signed) C. T>., 
 Of street, in the parish of 
 
 Solicitor for A. B., of street, in the parish of 
 
 in the county of . 
 
 No. 7. 
 
 Notice by Executor or Administrator. 
 
 I, the undersigned A. B., of , being the executor [oj- 
 
 administrator] of 0. D., late of deceased, hereby give 
 
 you notice, that on the day of , the said 0. D., 
 
 being then in your employment at , as , was, through 
 
 the negligence of [state cause of injury, etc., after mode indicated in 
 previov,s forms'] killed \or injured] [state how], and from the efieots of such 
 
 injury died on the day of , and I claim, etc. 
 
 Dated the day of 
 
 To Messrs. E. F. 
 
 (Signed) A. B., 
 
 Executor [or administrator] of the above- 
 mentioned deceased. 
 
 No. 8. 
 
 Form of Particulars of Demand. 
 
 In the County Court. No. 
 
 Between A. B., Plaintiff, 
 and 
 
 G. D., Defendants. 
 Pabticdlaes. 
 1. The plaintiff's claim is under the Employers Liability Act, 1880, 
 for damages for personal injuries sustained by him on the day of 
 
 19 , on the defendants' premises, whilst in the 
 defendants' employment, by reason of defect in the condition of the ways, 
 work, machinery or plant connected with or used in the business of the 
 employer, that is to say [here set out specifically the cause of the injury, i.e., 
 by reason of a shaft not being properly fenced, or a floor not being secureVy 
 boarded, etc.]. The notice of injury was served on the 
 day of , 
 
Forms 711 
 
 • 2. And by reason of the negligence of B. F., being the superintendent 
 of 0. D., and who had superintendence entrusted to him and while in the 
 exercise of such superintendence. 
 
 3. And by reason of the negligence of the said E. P., to whose orders 
 the plaintiff at the time of the injury was bound to conform, and did con- 
 form ; and the said injury resulted from the plaintiS so conforming. 
 
 4. And by reason of the act or omission of the said E. P., being a 
 person delegated with authority within the meaning of the said Act. 
 
 5. The negligence of which the plaintiff complains was [here specify the 
 negligence, showing 
 
 (1) A duty under the Act to take some precaution. 
 
 !) The omission of the duty. 
 
 (3) Eesulting injxiry]. 
 
 6. The plaintiff, by reason of the negligence of the aforesaid, has been 
 prevented from following his employment from the to the 
 
 , or was partially incapacitated {state the extent) from the 
 to 
 
 7. The plaintiff claims : 
 
 (a) £ in respect of loss of wages. 
 
 (h) £ medical attendance and extra nourishment. Give 
 
 items, 
 (c) £ pain and suffering. 
 
 The plaintiff claims £ ' 
 
 Dated this day , 19 . 
 
 Yours, etc., 
 
 {Signed by the Solicitor) 
 Who undertakes to accept service, etc. 
 
 No. 9. 
 Form of Interrogatories. 
 
 In the County Court. 
 
 Between A. B., Plaintiff, 
 and 
 
 C. D., Defendant. 
 Interrogatories on behalf of the above-named plaintiff A. B. for the 
 examination of the above-named defendant C. D. 
 
 1. Was the plaintiff in your employment on the day of 
 
 19 , or at what time ? ■, ■ , ^-^ ■, ■ ^-a 
 
 2. Did [such or such occurrence befal] by which the plamtifi was 
 injured, or what happened ? , ^ ^. , ,_ ■ 
 
 3. Do you inspect your machinery, and at what time or by whom is 
 your' machinery inspected, and when last previously to the accident was 
 such inspection made ? . , , „ „ , , 
 
 4. Was the plaintiff under the orders of the foreman E. P., and was not 
 the- duty of the said B. P. to [here interrogate as to duty} ? ..„,,, 
 
 5. Did not the course of your business require that the plaintiff should 
 take orders from E. P., and conform to the same. 
 
 6. Did not E. P. order and direct the plaintiff to do [here set out what}. 
 1 Did you not receive a letter on or about the day of 
 
 19 , sent by or on behalf of the plaintiff, giving 
 you notice of his injury ? • 
 
712 Appendix A 
 
 No. 10. 
 
 Form of Notice of Payment into Cowt, with a denial of liability. 
 
 In the County Court. 
 
 Between A. B., PlaintifE, 
 and 
 0. D., Defendant. 
 Take notice that the above-named defendant has paid the sum of £ 
 into Court in this action in satisfaction of the whole of the plaintiff's claim 
 herein [or so much of the plaintiff's claim as relates to a/ny 
 
 separa^ issm]. 
 
 And further take notice that notwithstanding such payment the defen- 
 dant denies his liability. 
 
 And further take notice that the address of the defendant is as follows : 
 IState the address.] 
 
 Dated, etc. 0. D.,'the above-named defendant. 
 
 [or B. F., solicitor for the above-named 
 To the Eegistrar defendant.] 
 
 of the County Court, and 
 
 to A. B., the above-named plaintiff. 
 
 No. 11. 
 
 Forms of Special Defence and Coimterclaim. 
 
 In the County Court. 
 
 Between A. B., Plaintifl, 
 and 
 C. D., Defendant. 
 Take notice that the defendant intends at the hearing of this action to 
 give in evidence or to rely on the following ground of defence. 
 Dated this day of 19 
 
 Signed [the defendant or his soUdtorJ. 
 That no notice of the alleged injury was given to the defendant 
 pursuant to 43 & iA Vict. c. 42, see. 4. 
 
 Take notice that the defendant intends at the hearing of this action to 
 set up a counterclaim against the plaintiff's demand, the particulars of 
 which are annexed hereto. 
 
 Dated this day of 19 
 
 Signed [ifee defenda/nt or his soUoitorJ. 
 
 No. 12. 
 
 Form of Application for New Trial, 
 
 In the County Court. 
 
 Between A. B., Plaintiff, 
 and 
 0. D., Defendant. 
 Take notice that on the ,19 , an application 
 
 will be made on behalf of the plaintiff [or defendant] at the sitting of the 
 
Forms 713 
 
 Court for an order directing that the verdict and judgment entered herein 
 on the day of , 19 , may be set aside, and a new 
 
 trial be ordered between the parties on the following grounds : 
 
 (1) [Here specify theni], 
 
 (2) etc. 
 
 Dated this day of , 19 . 
 
 A. B., solicitor to the plaintiff [or 
 defendant]. 
 To the Registrar, and 
 
 O.D., the defendant [or plaintiff]. 
 
 Note. — The application should be made at the first sitting of the Court 
 after twelve clear days from the judgment. The notice must be served 
 seven days before the sitting. 
 
 No. 13. 
 Notice of Appeal. 
 
 In the High Court of Justice. 
 King's Bench Division. 
 
 Between A. B., Plaintiff, 
 and 
 0. D., Defendant. 
 Take notice that this Honourable Court will be moved on the [name a 
 date eight days clear after the notice'] day of , 19 , or so soon 
 
 thereafter as counsel can be heard, by Mr. , of counsel for 
 
 the defendant [or plaintiff, as the case ma/y regm/rel, for an order directing 
 that the verdict and judgment entered herein on the day of 
 
 , 19 , may be set aside, and judgment entered for the defen- 
 dant [or for the plaintiff], or that a new trial may be had between the 
 parties on the following grounds : 
 
 That there was no evidence of any defect, etc. 
 That there was no evidence that B. F. was in superintendence. 
 That there was no evidence that the injuries sustained by the said 
 A. B. was by reason of the act or omission of any person in the service of 
 the defendant done or made in obedience to particular instructions given 
 by any person delegated with the authority of the defendant in that behalf 
 [or any other ground on which an appeal is to be stipportedj. 
 Dated this day of 19 . 
 
 (Signed) 
 To the plaintiff, and to 
 his solicitor. 
 
 B.E.L. 
 
 3 A 
 
APPENDIX B. 
 
 STATUTOEY RULES AND ORDEES, 1907. 
 No. 433, L. 11. 
 
 MASTER AND SEKVANT. 
 Workmen's Compensation Act, 1906. 
 
 The Workmen's Compensation Mules, 1907. Dated the First Day 
 of June, 1907. 
 
 The Workmen's Compensation Rules, 1898, tte Workmen's Com- Former rules, 
 pensation Rules, 1899, and the Workmen's Compensation Enles, 1900, annulled, 
 are hereby annulled, but shall continue to apply to cases where the 
 accident happened before the commencement of the Workmen's Com- 
 pensation Act, 1906, except so far as the provisions of that Act and of eEdw.vil, c. 58. 
 these Rules relating to references to medical referees and proceedings 
 consequential thereon apply to those cases. 
 
 Preliminary. 
 
 1. (1) The foUowing Rules shall have effect under the Workmen's Effect, short 
 Compensation Act, 1906 (in these Rules referred to as the Act), with Jiencement nd 
 reference to any matter or proceeding for the regulation of which construction of 
 Rules of Court may be made under the Act, and generally for carrying ^ ^^ „^ ^ ^^ 
 the Act into effect so far as it affects the County Court or an arbitrator 
 appointed by the judge of the County Court, and proceedings in the 
 County County 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. 
 
716 
 
 Appendix 
 
 62 & 63 Vict. 
 0. 63. 
 
 (4) The Interpretation Act, 1889, shall apply for the purpose of 
 the interpretation of these Rules as it applies for the purpose of the 
 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 
 County Court Rules, 1903, or in any County Court Rules of subsequent 
 date, as the case may be. 
 
 Parties to 
 arbitration. 
 
 Order III., 
 Bule 2. 
 
 Joinder of 
 applicants. 
 Order III., 
 Eule 1. 
 Order XLIV., 
 Eules 18, 19. 
 
 Application by 
 dependants. 
 
 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 applica- 
 tion shaU. be called " the applicant " ; and, subject to these Rules, 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 defined by the Act 
 and a contractor with Mm are alleged to be liable to pay compensation 
 under the Act, Order III., Rule 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., Rule 1 ; and that Rule, and 
 Rules 18 and 19 of Order XLIV., shall, with the necessary modifica- 
 tions, 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 appUoation, 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 
 
Workmen's Compensation Rules, 1907 717 
 
 include persons who claim or maybe entitled to claim to be dependants, 
 but as to whose claim to rank as dependants any question arises. 
 
 5. (1) In any case in which the amount payable as compensation Application by 
 to the dependants of a deceased workman has been agreed upon or o*^™ ^"j, First 
 ascertained, but any question arises as to who are dependants, or as to ^^ejg"|J^(,Jn\' of 
 the amount payable to each dependant, an application for the settle- compensation 
 ment of such question by arbitration may be made either by the legal ascertained. 
 personal representative, if any, of the deceased workman on behalf of 
 the dependants or any of them, or by such dependants or any of them, 
 against the other dependants, and the persons claiming 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 ascer- 
 tained amount of compensation, it shall not be necessary to make him 
 a respondent, but if such compensation or any part thereof is still iu 
 his hands he shaU 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. 
 
 e. (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 deceased sum'p^yabie' '" 
 workman who leaves no dependants shall be made by the legal personal f" medical 
 
 ■^ -rn jT • 1 *"™dance and 
 
 representative, if any, of the deceased workman. If there is no such burial, 
 legal personal representative, the application may be made by any schedule, 
 person to whom any such expenses are due. In the latter case any P*'- ^ W ("O- 
 other person known to the applicant as a person to 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 Apportionment 
 arbitration of such amount, the amount awarded, if insufficient for 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 Rules 7 and 8 of Order III., as to parties Parties under 
 suing or defending on behalf of other persons having the same interest, partners^ °° 
 
718 
 
 Appendix 
 
 representation of and the provisions of the County Court Rules as to persons under 
 ftTMme''""^ disability and partners suing and being sued, shall, with the necessary 
 iuterest. modifications, apply to proceedings by way of arbitration under the 
 
 Act. 
 
 Bequest for 
 arbitration. 
 
 Particulars. 
 
 Forms of 
 request and 
 particulars. 
 Forms 1 to 11. 
 
 Application by 
 employer. 
 
 Application for Arbitration. 
 
 8. (1) An appKoation for the settlement of any matter by arbitra- 
 tion shall not be made unless and until some question has arisen between 
 the parties, and such question has not been settled by agreement. 
 
 (2) Where any question has arisen and has not been settled by 
 agreement, an application for the settlement of the matter by arbitra- 
 tion 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 — 
 
 (ct) 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 com- 
 menced 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 accord- 
 ance with Rule 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. 
 
Workmen's Compensation Rules, 1907 719 
 
 (2) Particulars shall be appended or annexed to tte recLuest, 
 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, whoUy 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 
 
 {d) the full names and addresses of the respondents and of the 
 applicant, aaid of his solicitor, if the proceedings are com- 
 menced through a solicitor. 
 
 11. The applicant shall deliver to the registrar with the req^uest 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 Wijere applicant 
 
 •^■^ J . n T '^ illiterate. 
 
 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 Fixing day 
 shall transmit a copy of the request and particulars to the judge, who arbitration. 
 shall 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 behaM 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. 
 
720 
 
 Appendix 
 
 (4) If such direction is given before tte 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 to 
 parties. 
 
 Forms 12, 13, 
 
 Notice where 
 employer is 
 applicant. 
 Form 13. 
 
 Notice of Day fixed. 
 
 14. (1) On the day for proceeding with an arbitration being 
 fixed, the registrar shall give or send by post notice in writing to the 
 appUcant, stating the place at which and the day and hour on and at 
 which the arbitration wiU be proceeded with, and shall issue the 
 copies of the reijuest and particulars, under the seal of the court, for 
 service on the respondents, together with notices signed by the 
 registrar himself, and 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 reo[uest 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. 
 
 Sen'ice on 
 respondents. 
 
 Service on Respondents. 
 
 15. (1) The copies and notices mentioned in the last preceding 
 rule shall 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 baidfE of a court ; 
 or, at the reo^uest 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. 
 
Workmen's Compensation Bules, 1907 721 
 
 (3) Service may be efEeoted 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 with Act, sec. 2, 
 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 efEeoted otherwise than by a bailiff, a copy where service 
 of the document served, with the date and mode of service indorsed tTse'than by " 
 thereon, shall within three days next after the date of service, or such bailiff, 
 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 Rules, with such 
 variations as the circxunstances of the case may req[uire. 
 
 (5) Where a document is served by post it shall, unless the Service by post, 
 contrary be proved, be deemed to have been served at the time when 
 
 the letter containing the same would have been delivered in the 
 ordinary course of post, ajid 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 Siandor"' 
 effected in accordance with this rule, and service so effected shall be ^™1*"«*' 
 deemed to be sufficient. 
 
 Stay of Proceedings. 
 
 16. Where several requests for arbitration are filed by different Stay of pro- 
 
 . . ^ . ii , . ceedings la 
 
 appuoants against the same respondent m the same court in respect other arwtra- 
 of matters arising out of the same circumstances, the respondent decision as to 
 may, on filing an undertaking to be boim.d, so far as his liability to ''^''H"? '" 
 pay compensation is concerned, by the award in such one of the said arbitration. 
 arbitrations as may be selected by the judge, apply to the judge under baHh 2-6. ' 
 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 Rule 2 to 6 of Order VIII. shall, with the 
 necessary modifications, apply accordingly. 
 
 Answer by Bespondent. 
 
 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 
 particulars are in any respect inaccurate or incomplete, or desires to 
 
722 
 
 Appendix 
 
 Form 14. 
 
 Answer where 
 employer is 
 applicant. 
 
 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 
 compensation 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 subject-matter of the arbitration, or stating in 
 what respect the applicant'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-fours hours after 
 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 modifica- 
 tions, 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 
 particulars in which he denies, wholly or partially, his liability to 
 pay compensation. 
 
 Submission to Award or Payment into Govrt by Respondent. 
 SubmisBion to 18. (1) Where a respondent from whom compensation is claimed 
 
 ment into Court admits liability, he may at any time before the day fixed for proceeding 
 Fom I™* ™'" with the arbitration, 
 
Workmen's Compensation Bides, 1907 723 
 
 (as) Wiere the application is made by an injured workmen, 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 
 sufB.oient to cover his liability in the circumstances of the 
 case. 
 
 (2) The registrar shall within twenty-four hours from the time Forms le, u. 
 of any notice filed or payment made pursuant to the last preceding 
 paragraph send notice thereof (with, where a notice is filed, a copy 
 
 of such notice) to the applicant, and to the other respondents (if 
 any). 
 
 (3) If the applicant is a workman, and elects to accept in satis- Acceptance of 
 faction of his claim the weekly payment specified in the respondent's ment offered. 
 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, 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 Acceptance ot 
 dependants of a deceased workman, or for the settlement of the siim court. 
 payable in respect of medical attendance and burial as foresaid, and ^ ■^'" 
 the applicant is w illin g to accept the sum paid into court in satis- 
 faction 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 wiUingness, 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 
 ooxirt by the respondent has permitted. 
 
 If there are any other respondents, the applicant shall in like manner 
 give notice of such wiUingness to such respondents; and if any of 
 such respondents are wiUing 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. 
 
724 Appendix 
 
 Procedure if (5) If the applicant is a -workman, and elects to accept in satis- 
 
 weekly payment jijj. 
 
 offered or Bum faction of his claim the weekly payment submitted to by the respondent 
 
 araepM. or if in aoay other case the appUoant and all the respondents give 
 
 notice of their wiUingness 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 ; 
 
 (&) 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 apportion- 
 ment and application ; 
 (ii) In any other case the arbitration may proceed as 
 between the applicant and the other respondents. 
 Costa payable (c) In any such case the judge may, in his discretion, by Ms 
 
 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 properly incurred before the receipt of notice of sub- 
 mission to an award or payment into court, including, if the 
 judge on consideration of the facts of the case shall so 
 order, any items which might have beeen allowed by order 
 of the judge at the hearing of the arbitration. 
 
 Form 18. (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. 
 
 fnv'ume'^efor ^^^ Where any party has not given notice of acceptance in 
 
 arbitration 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, 
 
Workmen's Compensation Mules, 1907 725 
 
 subject to the payment of any costs which may have been reasonably Costs. 
 monrred by the respondent since the date of filing notice of submission 
 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 ofi 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 Procedure and 
 respondents, the arbitration may proceed; but if no greater weekly sum offered or 
 payment or compensation is awarded than that which the respondent noracMPtcd.'^ 
 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 modifloa- Submission to 
 
 .r.n 1 iT-£ij J.J! awBFd or pay- 
 
 tions, apply to a case m which an employer who nas Metl a request tor ment into court 
 
 arbitration admits liability to pay compensation. ia applicant"^"^ 
 
 Notice to Parties against whom Indemnity claimed under section 4. 
 
 19 Where a respondent claims to be entitled imder section 4 of Notice of claim 
 
 ^ , , ,t_ T_., ,. tomdemnity 
 
 the Act to indemnity against any person not a party to the arbitration, under sec 4. 
 
 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 deliver Form 23. 
 
 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 anv person served with a notice under the last preceding Appearance by 
 
 •■ i\n. _LTj_ji tnird party. 
 
 rule (herein-after called the third party) desires to dispute the 
 applicant's claim in the arbitration as against the respondeat on 
 
726 
 
 Appendix 
 
 "Where notice 
 not served in 
 due time. 
 
 Proceedings 
 on default of 
 appearance by 
 tliird party. 
 
 Application for 
 directions. 
 What directions 
 may be given. 
 
 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 arbitration, 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 re- 
 spondent 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 seiwed on him by the respondent. 
 
 Provided, that if it appears to the judge before or at the arbitra- 
 tion 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 and otherwise, as may be just. 
 
 21. If the third.party fails to appear on the day mentioned in Exile 
 20, or, if the proceedings are adjourned under that rule, on the day to 
 which the proceedings are adjourned, then if the arbitration results 
 in an award in favour of the applicant, or the arbitration is finally 
 decided 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 untU 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. 
 
 22. The third party or the respondent may apply before or at the 
 arbitration to the judge for directions : and the judge, upon the hear- 
 ing 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 
 indemnity 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 
 
Workmen's OoinpensaUon Rules, 1907 727 
 
 part therein as may be just, and g'enerally may give suoli directions as 
 he may think proper for having the question most conveniently 
 determined, 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 Costs. 
 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- Notice of claim 
 covered against him he will be entitled under section 6 of the Act, under sec. e, or 
 or otherwise than under section 4, to iudemnity against any person u'^de™c.*4.™ 
 not a party to the arbitration, he shall file and serve a notice of his Form 23. 
 claim in accordance with Rule 19. 
 
 (2) If any person served with a notice under the last preceding if person 
 paragraph (herein-after called the third party) desires to dispute the ^Iflnit^T^^^ 
 applicant's claim in the arbitration as against the respondent on whose appearing, he 
 behalf the notice has been given, he must appear before the judge on to admit 
 the day fixed for proceeding with the arbitration, or on any day to award against 
 which he may have received notice from the registrar that the arbitra- respondent. 
 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 arbitra- where notice 
 tion that the notice of claim has not been served on the third party in due time, 
 time to enable him to appear on the day herein-bef ore 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. 
 
 (3) The third party or the respondent may apply before or at the Application to 
 arbitration to the judge for directions ; and the judge, upon the hear- directions as 
 ing of the application, may, if it appears desirable so to do, give the Irt^fttraf 
 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 arbitra- 
 tion and take such part therein as may be just, and generally may 
 
 give such directions as he shall think proper. 
 
third party. 
 
 728 Appendix 
 
 Costs. (4) If the third party obtains leave to resist the claim of the 
 
 applicant against the respondent, the provisions of Kule 23 as to 
 costs shall apply. 
 
 Judge how far (5) Nothing in this Rule shaU empower the judge to decide (other- 
 
 empowered to ^jgg ^j^g^jj^ T^j consent) any question as to the liability of the third 
 aa to liability of party to indenmify the respondent, or to make any award in favour of 
 the respondent against the third party, or to make any further or other 
 order than that the third party shall not be entitled in any future 
 proceedings between the respondent and such third party to dispute 
 the validity of the award as to any matter which the judge has juris- 
 diction to decide in the arbitration as between the applicant and tjie 
 respondent. 
 
 (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 appli- 
 cant, or is finally decided in favour of the appHosLnt 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 tmtil after satisfaction by the respondent of the 
 award against him, or the amount recovered against him ; or 
 
 (6) The judge may, on an application for directions, order any 
 question 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 favoxir 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 
 arbitration), or give such directions as to such costs as the 
 justice of the case may require. 
 
 Third Party ProcedAJure where Employer is Applicant. 
 
 The provisions of Rules 20 to 24 shall, with the n( 
 applicant.'^ modifications, apply to a case in which an employer who has filed a 
 
 procedurewhero 25. The provisions of Rules 20 to 24 shall, with the necessary 
 
Worhmen's Compensation Rules, 1907 729 
 
 req[uest for arbitration claims to be entitled to indemnity against any 
 person not a party to the arbitration. 
 
 Claim to Indemnity as between Respondents. 
 
 26. (1) Where a respondent claims to be entitled to indemnity Claim to 
 against any other respondent, a like notice shall be issued and the like j," t™eu ^ °^ 
 procedure shall thereupon be adopted for the determination of questions respondents. 
 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. 
 
 Proced/ure on Arbitration. 
 
 27. (1) Subject to the special provisions of these Rules, the pro- procedure in 
 oedure in an arbitration shall be the same as the procedure in an action ^'■'"'™"™- 
 commenced in the County Court by plaint and summons in the ordinary 
 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 
 appKcant's request for arbitration shall be deemed to be a summons 
 with particulars annexed, the day fixed for proceeding with the arbi- 
 tration shall be deemed to be the return day, and the applicant and 
 respondents shall be deemed to be plaintifE and defendants respectively. 
 
 (2) Provided, that the burden of proof of any facts which are not Burden of proof 
 litted shall be the same, w 
 request for arbitration is filed. 
 
 admitted shall be the same, whoever the party may be by whom the ^Sted. 
 
 Awa/rd. 
 
 28. (1) The award of the judge on any arbitration shall be prepared Award, 
 and settled by the registrar, and shall be signed by the judge, and ^o™ "4. 
 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. ; 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 
 
 B.E.L. 
 
 3 B 
 
730 Appendix 
 
 Proceedings before Arbitrator appointed by Judge. 
 Appointment of Arbitrator by Judge. 
 
 Appointment 29. With, respect to the appointment of an arbitrator by the judge, 
 
 of arbitrator by ^^^^ f oUowing provisions shaU 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. 
 
 (&) 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 settle- 
 ment 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 
 
 arbitrator appointed xmder this rule, the judge may, on the 
 appHoation of any party, appoint a new arbitrator in accord- 
 ance with this rule. 
 
 Fixing day for Arbitration. 
 
 Fixing day 30. Where any matter is to be settled by an arbitrator, the judge 
 
 proceedings shall retum the copy of the request for arbitration to the registrar, 
 
 before arbitrator, ^^jj ^j^g 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 
 
Workmen's Compensation Bules, 1907 731 
 
 the arbitration, in accordance witli Rule 13, and the provisions of 
 that rule as to the place where an arbitration shaU be held shall apply. 
 Proyided, 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 accommodation 
 in the court-house wiU be available for the arbitration. 
 
 Procedure hefore Arbitrator. 
 
 31. (1) On the day for proceeding with an arbitration being fixed Procedure 
 the registrar shall proceed according to Rule 14, and thence-forward 
 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 Rule 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 biTti in or out of court on behalf of or with the consent 
 of aU parties, settle the matter himself ; and thereupon the 
 functions of the arbitrator as to such matter shall cease, and 
 the registrar shall forthwith inform him that the matter 
 has been settled ; and 
 
 (5) Any application for the enforcement of or for staying 
 proceedings 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 Uke manner made to the judge. 
 
 Suhmission of Question of Law by Committee or ArUtrator to Judge. 
 
 32 (T) Where a committee or an arbitrator (whether agreed on Submission of 
 .,,,,,...,., ,. J, question of law 
 
 by the parties or appointed by the judge) submits any question ot by committee 
 
 law for the decision of the judge under paragraph 4 of the second to/Jdgl"'""^ 
 
 schedule to the Act, such submission shall, be in the form of a Act, Sched. 2, 
 
 par. 4. 
 
 special case. 
 
 (2) The case shall be intituled in the matter of the Act and of statement of 
 the arbitration, and shall be divided into paragraphs numbered con- 
 secutively, and shall state concisely such facts and documents as may 
 be necessary to enable the judge to decide the questions of law 
 
732 
 
 Appendix 
 
 Fixing day for 
 hearing. 
 
 Form 25. 
 
 Copies of 
 case. 
 
 Power of judge 
 on hearing of 
 case. 
 
 Ke-statement. 
 
 Costs of 
 special case. 
 
 raised thereby. Upon the argTiment of the case the judge and the 
 parties shall he 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 
 the committee or by the arbitrator, and sent to the reg^istrar, 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 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 
 party, furnish him with a copy of the case. 
 
 (6) On the hearing of the case the judge may, after deciding the 
 question submitted to him, remit the case with a memorandum of his 
 decision to the committee or arbitrator, for them or him to proceed 
 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 
 for re-statement or further statement. 
 
 (7) The judge shall have the same power over the costs of a special 
 case as he has over the costs of an arbitration, or he may direct 
 that such costs shall be dealt with as costs attending the arbitration ; 
 and the provisions of the Act and these Rules as to such costs shall 
 apply accordingly. 
 
 Appearance 
 of parties. 
 
 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 : 
 
Workmen's Compensation Bules, 1907 733 
 
 (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 employ- 
 ment of the company or corporation : 
 
 iff) By any officer or member of amy 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. 
 
 (2) No person other than a soUoitor who appears or acts on behalf 
 of any party in any arbitration under the Act shaU 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 afEeot the right of counsel to appear or act in any 
 arbitration, or the right of any soKoitor to recover costs in respect of 
 his employment of counsel to appear or act as aforesaid. 
 
 Duty of Judge as to taking Notes. 
 
 34. At the hearing of any arbitration or special case the judge Notes to be 
 
 shall make a note of any question of law raised, and of the facts in question of law 
 
 evidence in relation thereto, and of his decision thereon, and of his ^secl, etc.,and 
 ' ' copy furnished. 
 
 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. 
 
 Proceedings against Insurers under Section 5. 
 
 35. (1) Where under section 5 of the Act the rights of an where rights 
 employer against any insurers under a contract entered into by the etc .employer 
 employer with the insurers in respect of amy liability under the Act ^K^jn^' insurers 
 to any workman are transferred to and vest in the workman, the under sec. 6. 
 following provisions shall have effect. 
 
 (2) Where a workman who is or claims to be entitled to oompen- Examination of 
 sation from an employer to whom section 5 of the Act applies is fi^urance.*^ '" 
 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 
 
734 
 
 Appendix 
 
 Order XXV., 
 Rules 11, 12. 
 
 FrovisioDS as to 
 arbitration. 
 Form 11, 
 
 affidavit intituled in the matter of the Act, and settLag 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., Rule 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 Kules 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. 
 
 Claim for com- 
 pensation in 
 case of death. 
 
 Where master, 
 etc., lost witii 
 sliip. 
 
 Forms of 
 request for 
 arbitration. 
 Forms 6, 7. 
 
 Description of 
 owners in 
 documents and 
 proceedings. 
 
 Service of 
 documents and 
 proceedings. 
 
 Merchant 
 Shipping Act, 
 189), ss. 69, 696. 
 
 Masters, Sea/men, Apprentices, and Pilots. Section 7. 
 
 36. (1) In the application of the Act and these Rules in the case 
 of masters, seamen, and apprentices to the sea-service and apprentices 
 in the sea fishing service, who are workmen withiu the meaning of 
 the 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 
 pilot, the claim for compensation shall state the date at which news of 
 the death was received by the claimant. 
 
 (3) The claim for compensation on behalf of dependants of a 
 master, seaman, apprentice, or pilot lost with his ship, and the par- 
 ticulars appended or annexed to the request for arbitration, shall state 
 the date at which the ship was lost or is deemed to have been lost. 
 
 (4) A request for arbitration shall be according to such one of the 
 forms in the Appendix as shall be appHoable to the case, with such 
 modifications as the nature of the case shall require. 
 
 (5) In any document, notice, or proceeding it shall be sufficient to 
 describe the owners of the ship as " the owners of the ship '' ; 
 and the provisions of the County Court Rules as to disclosure of the 
 names of partners shall with the necessary modifications apply to the 
 disclosure of the names of such owners. 
 
 (6) Subject to the provisions of paragraph (a) of section 7 of the 
 Act as to service of the notice of accident and the claim for compensa- 
 tion, any document, notice, or proceeding to be served on the owners 
 of a ship shall be deemed to be sufficiently served if served on the 
 managing owner or manager for the time being of the ship, or (except 
 where the master is claiming compensation) on the master of the ship ; 
 and section 696 of the Merchant Shipping Act, 1894, sub-section (1), 
 
Workmen's Compensation Rules, 1907 735 
 
 shall apply to service on the master of the ship, and where the master 
 is claiming compensation, and there is no managing owner of the ship, 
 service may he effected in accordance with paragraph (c) of the said 
 sub-section. 
 
 Detention of Ships. Section 11. 
 
 37. (1) An application for an order for the detention of a ship under Application for 
 section 11 of the Act shall be made in accordance with the rules for g^jp" '™ ° 
 the time being in force under the Shipowners' Negligence (Remedies) Act, s. ii. 
 Act, 1905 ; and those rules, with the necessary modifications, shall 
 apply accordingly. 
 
 (2) Subject to any such rules as in the last proceeding paragraph 
 mentioned, an application for an order for detention shaU be made in 
 accordance with the following rtiles. 
 
 (3) The application may (subject to the provisions of paragraph 9 Application and 
 of this rule) be made ex parte either in or out of court, according to p"*™26 
 
 the form in the Appendix, and shall be supported by affidavit or other 
 evidence showing, to the satisfaction of the judge, the grounds on 
 which the application is made. 
 
 (4) The judge may, before granting the appHoation, req[uire the Undertaking as 
 appKcant to give or procure an undertaking, to the satisfaction of the po^^'j^^^' 
 judge, to abide by any order as to damages and costs which may be 
 thereafter made, in case any person affected by the order for detention 
 
 shall sustain any damages by reason of the order which the applicant 
 ought to pay. 
 
 (5) An order for detention shall specify the amount for which Order and 
 security shall be given, and shall be according to the form in the thereof. 
 Appendix, and shaU be issued in triplicate ; one copy shall be delivered Form 28. 
 to the applicant, and the other two copies to the officer named by the 
 judge ; and one of such last-mentioned copies shall be delivered by the 
 oflS.cer to the person who is at the time of the execution of the order 
 apparently in charge of the ship, or, if there is no person apparently 
 
 in charge, shaU be nailed or affiled on the main mast or on the single 
 mast of the ship; and the other copy shall be retained by the 
 officer. 
 
 (6) The judge may at any time on good cause shown rescind any Eeaoission of 
 order for detention made by him. 
 
 ("Tl The provisions of sections 108 and 109 of the County Courts Security. 
 
 ^ ' „ „ , -^-^-r-r,- i •j_^ 1 m -J.!. J.1 County Courts 
 
 Act, 1888, and of Order XXIX., as to security, shall with the necessary Act, isss, ss. 
 modifications apply to the giving of security; and the approval by the ordeJxxiX. 
 
736 
 
 Appendix 
 
 Eelease, 
 
 Form 30. 
 
 Notice of appli- 
 cation to agent 
 or solicitor of 
 owner. 
 
 Undertaking 
 by solicitor. 
 
 Form 30a. 
 
 Filing of 
 undertaking. 
 
 Attachmejit for 
 non-compliance 
 witli imder- 
 talsing. 
 
 judge of any security shall be signified in writing signed by him. 
 Where seoiirity is given by bond, such bond shall be according to the 
 form in the Appendix. 
 
 (8) If the judge rescinds any order for detention, or is satisfied 
 that satisfaction has been made, or when security has been given and 
 approved, or in any other case if the applicant so requires, the judge 
 shall deliver to the party applying for the same an order according to 
 the form in the Appendix, directed to the officer named in the order 
 for detention, authorising and directing him, upon payment of all 
 costs, charges, and expenses attending the custody of the ship, to 
 release it forthwith. 
 
 (9) (a) With respect to notice of application for an order for 
 detention, and to undertakings to give security, the following 
 provisions shall have effect. 
 
 (6) Notwithstanding anything in this rule contained, a person in- 
 tending to apply for an order for detention shall, if the name and 
 address of an agent in England for the owners of the ship, or of a 
 solicitor in England authorised to act for the owners, agent, master, 
 or consignee of the ship, are known to him, give to such agent or 
 solicitor, by post, telegram, or otherwise, such notice of the time and 
 place at which the application for an order for detention is intended 
 to be made as may be practicable in the circumstances of the case. 
 
 (c) If a solicitor in England represents that he is authorised to 
 act for the owners, agent, master, or consignee of the ship, and signs 
 an undertaking according to the form in the Appendix, to put in or 
 give security for an amount agreed on between the parties or fixed by 
 the judge, then, on such undertaking being filed in coxirt, 
 
 (i) the judge may in his discretion refuse to make an order for 
 detention; or 
 
 (ii) if an order for detention has been made, but not executed, 
 the judge may rescind it ; or 
 
 (iii) if an order for detention has been made and executed, the 
 judge may deliver to the party applying for the same an 
 order of release in accordance with paragraph 8 of this 
 rule. 
 
 (d) An undertaking given in accordance with the last preceding 
 paragraph shall be filed in the court to which the application for an 
 order for detention is made or is intended to be made. 
 
 (e) A solicitor who fails to put in or give security in pursuance of 
 his undertaking to do so shall be liable to attachment. 
 
Workmen's Compensation Mules, 1907 737 
 
 (10) "Where proceedings by way of arbitration for the recovery of Particulars to 
 
 compensation are taken agaiast the persons giving security, the stances under 
 
 rectuest for arbitration and particulars shall state concisely the ^^a„e giving 
 
 circumstanoes under which the persons giving security are made security are 
 
 respondents. dents. 
 
 Form 8. 
 
 (11) Where proceedings are commenced in any court in England, Transmission of 
 Scotland, or Ireland other than in which the order for detention was where prooee/-" 
 made or applied for, the registrar of the court in which the order in^|our"Sr'"^ 
 was made or applied for shall on request transmit bv registered post "i™ ""at in 
 
 i it -A iii. J.- I,- ifii, T wliicli order for 
 
 to tne registrar oi tne court in wnicn the proceedings are commenced detention made 
 
 all origiual documents iiled in the matter, and a certified copy of all " ^^^ '^ 
 
 records made with reference to the matter, and any bond by way of 
 
 security given in the matter, and shall transfer to such last-mentioned 
 
 court any money paid into oovu:t by way of security in the matter ; 
 
 and the provisions of Order VIII., Rule 9, as to the costs of copies 
 
 and the costs of transmission shall apply to any transmission under 
 
 this paragraph. 
 
 (12) The costs incurred by any party in relation to an application Costs of appiica- 
 
 j? JJJJJ.J.' J J- J, XI. t>on for order 
 
 tor an order ot detention and any proceedings consequent thereon for detention. 
 may in any subsequent proceedings by way of arbitration be allowed 
 as costs of the arbitration. 
 
 Proceedings where Employer who has paid Compensation, or from 
 whom, Compensation is claimed, desires to obtain Order for 
 Detention of Ship. 5 Edw. YII. c. 10. 
 
 38. Where an employer who has paid compensation or against Application by 
 whom a claim for compensation has been made under the Act desires dSention ot 
 to make an application for the detention of a ship under the Ship- ^'"'P- 
 owners' NegUgenoe (Remedies) Act, 1905, the provisions of the last 
 preceding rule shall apply, subject to the rules for the time being in 
 force under the last-mentioned Act, and to the following modifica- 
 tions, viz. : 
 
 (i) An application for an order for detention, an order for Forms 3), 32, 33. 
 detention, and a bond given by way of security, shall be 
 according to the forms in the Appendix. 
 
 (ii) Where proceedings by way of arbitration for the recovery of Form 23. 
 compensation are taken against the Employer, he may bring 
 in the persons giving security as third parties in accordance 
 with Rule 24, and the provisions of that rule shall apply 
 accordingly. 
 
738 
 
 Appendix 
 
 (iii) Where sueh proceedirigs are taken against the employer in 
 any court other than that in which the order for detention 
 was made or applied for, and the employer brings in the 
 persons giving security as third parties, the provisions of 
 paragraphs 11 and 12 of the last preceding rule shall apply. 
 
 (iv) Where the employer has paid compensation in respect of the 
 injury, aU questions as to his right to indemnity against the 
 persons giving security, and as to the amount of such 
 indemnity, shall in default of agreement be settled by action, 
 or, by consent of the parties, by arbitration in accordance 
 with the Act and these Eules ; and if such questions are 
 settled by arbitration, the provisions of paragraphs 10 to 12 
 of the last preceding rule shall apply. 
 
 Application of 
 Act and Rules 
 to cases of 
 industrial 
 
 Industrial Diseases. 
 
 39. (1) In the application of the Act and these Eules in the case 
 of a workman disabled by or suspended on account of his having con- 
 tracted any disease mentioned in section 8 of and the third schedule 
 to the Act, or whose death has been caused by any such disease, the 
 following provisions shall have effect. 
 
 (2) The notice reqxiired by section 2 of the Act shall state the 
 date and cause of the disablement or suspension; and where a 
 certificate of disablement or a certificate of or relating to suspension 
 has been given, a copy thereof shall on demand be furnished to the 
 employer. 
 
 (3) A request for arbitration 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. 
 
 (4) (a) If the employer desires to add any other employer as a 
 party to the arbitration, pursuant to proviso (ii) to paragraph (c) of 
 sub-section (1) of section 8 of the Act, he shall file vrith the registrar 
 in duplicate a notice according to the form in the Appendix : and there- 
 upon the registrar shall make an order adding such other employer 
 as a respondent, and may if necessary adjourn the hearing of the 
 arbitration for such time as may be necessary to enable such other 
 employer to be duly served. 
 
 Notice of (6) Where a respondent is added under the last preceding para- 
 
 service on added graph, copy of the notice pursuant to which he is so added, and of the 
 respondent. order, shall be sent by post to the applicant and the original respon- 
 dent ; and the like copies, together with a copy of the applicant's 
 
 Notice of 
 disablement. 
 
 Forms of 
 request for 
 arbitration. 
 Forms 9, 10. 
 
 Adding 
 respondent 
 under Act, b. t 
 (l)(c)(ii). 
 Forms 19, 20. 
 
Workmen's Compensation Bules, 1907 739 
 
 request and particulars, and of the notice served on the original respon- 
 dent under Rules 14 and 15, and a notice according to the form in the Forms 21, 22. 
 Appendix as to the place at which and the day and hour on and at 
 which the arbitration wiU be proceeded with, shall be issued by the 
 registrar for service on the added respondent ; and such copies and 
 notices shall be served on the added respondent in accordance with 
 Eiule 15, with the substitation of the original respondent for the 
 applicant. 
 
 (c) The provisions of these Rules as to respondents shall apply to Application of 
 the added respondent from the date of service on him as if he had respondent. 
 been originally made a respondent. 
 
 {d) At the hearing of the arbitration the judge or arbitrator shall Procedure at 
 decide aU questions as between the applicant and the original and ^"^ ' ™ '°°' 
 added respondents, and may make such award as may be necessary 
 efiectively and complete to adjudicate upon and settle aU the questions 
 involved in tbe arbitration, and may make such order as to costs costs, 
 as between the applicant and the respondents, and as between the 
 respondents themselves, as may be just. 
 
 (5) Where the employer claims under proviso (iii) to paragraph (c) Claim to con- 
 of sub-section (1) of section 8 of the Act to be entitled to contribution ^ct, s. a (i)<c) 
 from any other employer, he may bring in such other employer as a ^"^' 
 third party in accordance with Rules 19 to 23, 25 and 26 ; and the 
 provisions of those rules shall with the necessary modifications apply 
 to any such claim, to contribution in like manner as they apply to 
 claims to indemnity. 
 
 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 Application for 
 ,1 J. J J ji 1 -J, j_' 1 appointment, 
 
 arbitrator agreed on by the parties, any party to the arbitration who ^^^^^ 3^ 
 
 desires to make an appKoation 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 Fixing of 
 judge for any court appointed to be held within fourteen days from registrar. 
 the date of the appUoation 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 Fixing of 
 
 ^ ' . V T ,1 hearmgby 
 
 of the intended application to the judge, who shall as soon as con- judge. 
 
 veniently may be fix a time and place for the hearing of the application. 
 
740 
 
 Appendix 
 
 Summons to 
 other party. 
 Form 35. 
 
 Service of 
 summons. 
 
 Hearing of 
 application. 
 
 J^scertainment 
 of willingness 
 to act. 
 
 Order. 
 
 Costs. 
 
 Such time shall not, except by consent, be less than seven days from 
 the date of the application to the registrar. 
 
 (4) On the time and place for the hearing of the application being 
 fixed, the registrar shall issue to the appKcant 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. 
 
 (5) Such summons shaU be served by the applicant on the other 
 party in accordance with Rule 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. 
 
 Memorandum 
 to be sent to 
 registrar. 
 Act, Sched. 2, 
 par. 9. 
 Form 36. 
 
 Memorandimi under Schedule II., Paragraph 9. 
 
 41. (1) The memorandum as to any matter decided by a committee 
 or by an arbitrator or by agreement, which is by paragraph 9 of the 
 second schedule to the Act required to be sent to the registrar, shall 
 be intituled in the matter of the Act, and shall be left at the office of 
 the registrar, or sent by post by registered letter addressed to the 
 registrar at his office, as soon as may be after the matter has 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 
 schedtde 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. 
 
Workmen's Compensation Rules, 1907 741 
 
 42. (1) If the matter is decided by a committee or an arbitrator, Authentication 
 the memorandum shaU be authenticated by the signatures of the chair- of ScMorof" 
 man and secretary of the committee, or by the signature of the arbi- Sraton " 
 trator ; and it shall be the duty of the committee or arbitrator, as 
 
 soon as may be after the decision, to draw up such memorandum and 
 to sign the same or cause it to be signed as 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 Authentication 
 be authenticated by the signatures of all parties to such agreement, otr^Xent!™ 
 or by the signatures or signature of some or one of them, or by the 
 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 Notice to 
 one of the copies thereof to every party interested, with a notice Crested of 
 according to the form in the Appendix, requesting such party to ™/"^™J^5°™ 
 inform him within seven days from the date of the notice whether received, 
 the memorandum is genuine, or whether he disputes it, and, if so, ^°"" ^'' 
 
 in what particulars, or objects to its being recorded, and, if so, on 
 what grounds. 
 
 44. If aU the parties interested admit the genuineness of the Recording of 
 memorandum, or do not within such period of seven days dispute it S'^t^S^nuted 
 or object to its being recorded, the registrar shall, subject to 
 
 proviso {d) to paragraph 9 of the second schedule to the Act, and 
 to Biule 49, record it without further proof. 
 
 45. If any party interested disputes the genuineness of the memo- where memo- 
 randum, or if, where a workman seeks to record a memorandum of ""m^oyer'' ° ' 
 agreement between his employer and himself, the employer alleges being recorded 
 that the workman has in fact returned to work and is earning the Act, Sched. 2, ^ 
 same wages as he did before the accident, and objects to the recording 
 
 of the memorandum, such party or employer shall within seven 
 days from the date of the notice mentioned in Rule 43 file with the 
 registrar a notice according to the form in the Appendix that he porm 38. 
 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. 
 
742 
 
 Appendix 
 
 Notice of 
 dispute or 
 objection. 
 
 Form 39. 
 
 Subsequent 
 proceedings. 
 
 46. On the receipt of any such notice as in the last preceding 
 r\ile 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 he recorded except with the consent in writing of the party or 
 employer disputing the same or objecting to the same being recorded, 
 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 Rule 49, record the memo- 
 randum 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. 
 
 Froceedlngs on 
 application for 
 record of 
 
 Proceedings for Record of Memorandvm, or Bectification 
 of Segister. 
 
 48. The following provisions shall apply to an application for an 
 ,=w^>i ui order that a memorandum be recorded, or an application to the judge 
 
 SSdoHf" to rectify the register pursuant to paragraph 9 of the second schedule 
 register. to the Act. 
 
 Form 40. ■ 
 
 (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 
 memorandum 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 rectifica- 
 tion, subject to the provisions of these Eules as to the 
 parties to an arbitration ; 
 
 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 oraUy 
 examined in the same manner as on the hearing of an 
 fiction. 
 
Worhmen's Compensation Rides, 1907 743 
 
 (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 memorandum 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 Rules as to the costs of 
 
 an arbitration before the judge shall apply to any such 
 application. 
 
 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 Proceedings 
 registration relates to any matter referred to in proviso {d) to para- presenf&'tot"'" 
 graph 9 of the second schedule to the Act, the registrar may, before "f^'cd'bv " 
 recording the same, make such inquiries and obtain such information registrar to 
 as he may think necessary in order to satisfy himseK whether the Act, Schcd. 2, 
 memorandum may properly be recorded, regard being had to the said ^o^\^ u\ 
 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 
 according to the form in the Appendix, informing them that he has porn, 41, 
 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. 
 
 (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 Rules as to the costs of an 
 arbitration before the judge shall apply to any such inquiry. 
 
744 
 
 Appendix 
 
 Application for 
 removal of 
 agreement from 
 register. 
 Act, Sched. 2, 
 par. 9, 
 proviso (e). 
 J*'orm 42, 
 
 Notice where 
 inquiry directed 
 by judge. 
 Form 43. 
 
 Certificate under 
 Act, sec. 1, 
 sub-sec. 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 memoranduna 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, 
 req[uiring them to attend on a day to be named in the notice, when the 
 matter will be inciuired 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 wader 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 
 
 Act, Sched. 2, 
 par. 6. 
 Form 45. 
 
 Swm/moning Medical Referee as Assessor under Sched/ule II., 
 Pa/ragraph 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 
 registrar an application according to the form in the Appendix, 
 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. 
 
 Assessor to be (2) On the receipt of an application for an assessor the registrar 
 
 S"approves. ^^^^ forward a copy of the same to the judge, who if he thinks fit 
 
 shall return the same with his approval, and thereupon the registrar 
 
 shall forthwith summon an assessor. 
 
Workmen's Compensation Rules, 1907 745 
 
 (3) If the judge does not think fit that an assessor shall be Notice where 
 summoned, notice thereof shall be given by the registrar to the Ipp^ove.^^ ™ 
 applicant, according to the form in the Appendix. Form *6. 
 
 (4) If the judge thinks fit, either on the appUoation of any party sum„„niug of 
 to an arbitration or on his own motion, to summon a medical referee ossessor it judge 
 to sit with him as an assessor, the registrar shall forthwith summon directs. 
 
 one of the medical referees appointed by the Secretary of State for the 
 area comprising the district of the court in which the arbitrator is 
 pending, by sending to such medical referee by post a summons Form a. 
 according to the form iu the Appendix. 
 
 (5) If at the time and place appointed for the arbitration the where assessor 
 medical referee summoned does not attend, the judge may either 
 
 proceed with the arbitration without the assistance of an assessor, or 
 he may adjouxn the hearing. 
 
 Appointment of Medical Referee to Report under Schedule II., 
 Paragraph 15. 
 
 53. (1) Subject to and in accordance with regulations made by Appointment 
 the Secretary of State and the Treasury under paragraph 15 of the referees to 
 second schedule to the Act, the judge may submit to a medical referee Srsched", 
 for report any matter which seems material to any question arising P"'- ^^• 
 
 in an arbitration. 
 
 (2) When any matter is submitted as aforesaid, the judge may, 
 subject to and iu 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 beiug served with such 
 order, to submit himself for examination accordingly. 
 
 Application for Reference to Medical Referee under Schedule I., 
 Paragraph 15. 
 
 54. (1) With respect to applications to the registrar pursuant to Application for 
 paragraph 15 of the first schedule to the Act to refer any matter to a meS?eferM 
 medical referee, the foUowing provisions shall have efEect. sched.tfpar. is. 
 
 (2) An application to the registrar to refer any matter to a 
 medical referee shall be made in writiug, and shall contain a state- 
 ment of the facts which render the application necessary, according 
 to the form in the Appendix, and shall be accompanied by a copy of Form 48. 
 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 application shall be signed by or on behalf of both 
 
 B.E.L. ^ ^ 
 
746 Appendix 
 
 parties ; and the applicant shall file copies of the application and 
 reports for the nse 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. 
 
 j.oj,a 5Q, (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 inQ[uire whether 
 the workman is in a fit condition to travel for the purpose of examina- 
 tion, 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 workman, 
 on being served with the order, to submit himself for examination 
 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 himseU 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 office 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 pay- 
 ment 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. 
 
Workmen's Compensation Bules, 1907 747 
 
 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 Application to 
 accident, or is receiving' weekly payments under the Act, and the o/sa»pcnd 
 employer alleges that tKe workman refuses to submit himseH to ^^^^g^^^' 
 medical examination in accordance with paragraph 4, paragraph 14, refusal of 
 or paragraph 15 of the first schedule to the Act, or in any way submit to 
 obstructs such examination, the employer may apply for a suspension u^™Tct™ 
 of the right to compensation and to take or prosecute any proceedings p^'j^^o^"' *' 
 under the Act in relation to compensation, or of the right to the par. i5. 
 weekly payments, until such examination has taken place, in 
 accordance with this rule. 
 
 (2) Where proceedings are pending before a committee or an 
 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 
 
 (o) 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 62. 
 made in or out of court in accordance with Rule 48 ; and the provisions 
 
 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. 
 
748 Appendix 
 
 Payment into Court and Investment and Application of Money 
 payable in case of Death. Schedule I., Paragraph 5. 
 
 Payment into 56. (1) Where any payment in the case of death is to be paid into 
 
 menti and " the County Court pursuant to paragraph 5 of the 'first schedule to the 
 
 pa?mS oLe "^"t, the f oUowing provisions shaU have effect. 
 
 Sched!'i, Mr!'6. (^) Where any money is to be paid into court under an award 
 made by the judge or an arbitrator appointed by him, payment 
 shall be made in accordance with the directions contained in the 
 award. 
 
 (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. 
 
 (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 
 
 Form 63. praecipe 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 payment 
 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 pay- 
 able to each dependant have been settled by agreement or arbitration 
 before payment into court, the siun 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 schedxde 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 ap- 
 plication of the sum paid into court, such question shall be 
 settled by the court by arbitration in accordance with these 
 
Workmeri's Compensation Rules, 1907 749 
 
 rules ; and tte 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 amy 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 
 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) Where 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 appKed 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 ofSoe 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. 
 
 Payment into Cowrt and Application of Weekly Payments payable 
 to Person wnder Legal Disability. Schedmle I., Pa/ragraph 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 into^orart of 
 Act to a person under any legal disability shall during the disability J!™'^!^ payment 
 be paid into court may be made either by the person liable to make legal disability, 
 such payment, or by or on behalf of the person entitled to such par.' ». ' ' 
 payment. 
 
 (2) If the weekly payment is awarded by the judge, the ap- 
 plication may be made at or immediately after the hearing of the 
 arbitration. 
 
750 
 
 Appendix 
 
 Form 54. (3) In any other case the application may be made in or out of 
 
 court on notice in writing', which shall he 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 Kule 48 shall apply to any such 
 application. 
 
 (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 otherwise 
 applied for the benefit of the person entitled thereto in such manner 
 as the judge shall direct ; and the provisions of the last preceding 
 rule as to the payment out or application of ^ sums by weekly or other 
 periodical payments shall apply. 
 
 Application for 
 
 variation of 
 
 order. 
 
 Act, Sclied. 1, 
 
 par. 9. 
 
 Form 65. 
 
 Application for Variation of Order under Schedule L, 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 aU persons interested in accordance with Rule 48 ; 
 and the provisions of that rule and of Eule 56 shall apply to the 
 proceedings on such application. 
 
 InveBtment and 
 application of 
 Bnras paid in 
 redemption of 
 weekly pay- 
 ments. 
 
 Act, Sched. 1, 
 par. 17. 
 
 Investment and Application of Lump Sum paid in Medemption of 
 Weelcly 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 Eule 66 shall apply to the 
 investment and application of such lump sum. 
 
 Where workman 
 receiving 
 weekly pay- 
 ment intends 
 
 Proceedings where Worhman receiving Weekly Payment intends to 
 cease to reside in United Kingdom,. Schedule I., Paragraph 18. 
 
 60. (1) Where a workman receiving a weekly payment intends 
 to cease to reside in the United Kiugdom, the foUowiag provisions 
 shall have effect under paragraph 18 of the first schedule to the Act. 
 
Workmen's Compensation Rules, 1907 751 
 
 (2) The workman may apply to the registrar to refer to a medical to "^"s? ^ 
 
 referee the question whether the incapacity of the workman resulting tJnitcd 
 
 from the injury is likely to be of a permanent nature. Act, Sohed. 
 
 par. 18. 
 
 (3) The application shall be made on notice in writing, according 
 
 to the form in the Appendix, which shall be filed with the registrar. Form se. 
 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. 
 
 (4) If the workman has been examined by a medical practitioner 
 on behaM of the employer, the employer may at or at any time before 
 the hearing of the appKcation 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. 
 
 (6) On the hearing of the application the registrar, on being 
 satisfied that the applicant has a hond fide intention of ceasing to 
 reside in the United Kingdom, shall make an order referring the Form 6t. 
 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 
 question to a medical referee, he shall also make an order directing ^o™ so- 
 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 provision of paragraph 3 to 6 of Rule 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 
 paragraph 8 of Rule 54. Fo™ 5i. 
 
 (8) Where the medical referee certifies that the incapacity result- 
 ing 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 
 
752 Appendix 
 
 (6) 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 hand- 
 writing to be a true copy ; and 
 Form 58. (c) with a certificate of identity according to the form in the 
 
 Appendix; and 
 
 FonnB 59, 60, 61. (c?) with a notico according to the form in the Appendix, annex- 
 
 ing thereto forms of certificate and declaration according to 
 the forms in the Appendix ; 
 
 and shall procure from the workman a specimen of his signature, and 
 file the same for reference. 
 
 (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 pay- 
 ments 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 
 
 incapacity of the workman resulting from the injury continues ; and 
 such certificate shall be verified by declaration by the medical practi- 
 tioner, 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 
 Form 61. according to the form in the Appendix before a person having authority 
 
 to administer an oath, producing to such person the copy and certifi- 
 cate 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 a 
 
 Form 62. request, according to the form in the Appendix, for the transmission 
 
 to him of the amount of the weekly payments due to him, specifying 
 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 hand- 
 writing. 
 
 (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, 
 
Workmen's OompensafAon Rules, 1907 753 
 
 he shall send to the employer a notice according to the form in the 
 Appendix, reijiiesting: him to forward the amoxint due ; and the Form 63. 
 employer 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. 
 
 61. (1) Any costs of and incident to an arbitration and proceedings Costs, 
 connected therewith directed by a committee or by an arbitrator par.' ». 
 (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 agree- 
 ment 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 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 actions, and as 
 to objections and review of taxation by the registrar, shall apply 
 accordingly. Proceedings in an arbitration shall be within Order Order Llll. 
 LIU., Rules 7 and 8, and the word " judge " in those rules shall 
 include a committee and an arbitrator. 
 
 (2) Where the subject-matter of an arbitration is not a capital 
 sum, the committee, arbitrator, or judge shall determine what, for the 
 purpose 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 
 
754 
 
 Taxation of 
 costs awarded 
 by committee 
 or arbitrator 
 agreed on by 
 parties. 
 
 second schedxile 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. 
 
 Eeview of 
 taxation. 
 
 As to autlwrity 
 of solicitor to 
 receive costs 
 payable by 
 adverse party. 
 
 Review of Taxation hy Judge. 
 
 63. (1) An application to the judge to review any taxation of 
 costs shall be made on notice in writing, which shall be served on the 
 opposite party two clear days at least before the hearing of the appli- 
 cation, unless the judge or registrar gives leave for shorter notice. 
 
 (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 directs. 
 
 (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. 
 
 64. Where any party to whom costs are awarded acts by a solicitor, 
 such solicitor shall have the same authority to take out of court or 
 receive any sum paid into court or payable in respect of such costs by 
 the party against whom such costs are awarded as he would have if 
 such costs were awarded in an action. 
 
 Application to 
 
 determine costs 
 
 payable to 
 
 solicitor or 
 
 agent. 
 
 Act, Schtd. 2, 
 
 par. 14. 
 
 Costs of Solicitor or Agent vmder Schedule II., Paragraph 14. 
 
 65. (1) The following provisions shall apply to an application 
 under paragraph 14 of the second schedule to the Act. for the 
 determination of the amount of costs to be paid to the solicitor or 
 agent of a person claiming compensation under the Act. 
 
 (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. 
 
Workmen's Compensation iJijZes, 1907 755 
 
 (3) Where the sum awarded as compensation has been awarded hy 
 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 shaU be made only to 
 the judge. 
 
 (4) Where a sum has been agreed on as compensation, the applica- 
 tion shaU be made to the judge. 
 
 (5) An application made to the judge, other than an application 
 under paragraph 3 (a) of this rule, shall be made in court on notice in P<J™ 84. 
 writing in accordance with Biule 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. 
 
 (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 shaU, 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 Cotinty 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 pro- 
 ceeding had been an action in the County Court ; and the statutoryj 
 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 Rule 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 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. 
 
756 Appendix 
 
 Provisions as 66. Where an order is made by a committee, arbitrator, or judge 
 
 Souring awarding costs to a solicitor or agent, and declaring sncb solicitor or 
 
 lien, etc. agent to be entitled to recover sucb costs from the person for whom 
 
 he acted, or to be entitled to a lien for such costs on any sum 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 applioation 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 compensation ; and service thereof may be effected on such 
 party in accordance with Bule 16. 
 
 (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, amd 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 instal- 
 ments than those by which he is liable to pay such compen- 
 sation. 
 
 (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 Eule 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. 
 
 (/) 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. 
 
Workmen's Compensation Rules, 1907 757 
 
 Execution. 
 
 67. (1) When a party liable to pay compensation or costs under Execution, 
 any award, memorandum, or certificate Las made default in payment ^"^ ^^■ 
 of the amount awarded, or where payment is to be made by instalments, 
 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 alfidavit 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., Rule 11, shall, with the necessary modifications, apply Order XXV., 
 to execution under this rule. ''"'^ ^^' 
 
 Proceedings .under Debtors' Act, 1869, Section 5. 
 
 68. (1) Where proceedings by way of judgment summons under Proceedings 
 section 6 of the Debtors' Act, 1869, axe taken against a party hable to Tctisel!"""' 
 pay compensation or costs under any award, memorandum, or certifi- 32 & 33 Vict. u. 
 cate, who has made default in payment of the amount awarded, or, ' ' " 
 where payment is to be made by instalments, of any instalment, the 
 County Court Rules for the time being in force as to the committal of 
 . judgment debtors shall, with any necessary modifications, apply to 
 such proceedings ; Provided, that the court shall not alter the terms 
 or mode of payment of any sum to become payable in future under 
 any award, memorandum, or certificate, otherwise than by consent, or 
 under paragraph 16 of the first schedule to the Act. 
 
 (2) Where the amount in payment of which default has been made 
 is not payable tato court, the party applying for a judgment summons 
 shall satisfy the court, by affidavit or otherwise, as to the amount in 
 payment of which default has been made. 
 
 (3) A judgment summons issued under this rule shall be according Form 66. 
 to the form in the Appendix. 
 
 (4) Where the parties liable to pay compensation or costs are a 
 firm, the provisions of the County Court Rules as to judgment 
 summonses on a judgment or order against a firm shall, with the 
 necessary modifications, apply to proceedings by way of judgment 
 summons under this rule. 
 
758 
 
 other pro- 
 ceedings for 
 enforcement of 
 award, etc. 
 
 Rules as to 
 new trials not 
 to apply. 
 
 When award 
 or order may 
 be set aside or 
 varied. 
 
 Other Proceedings for Enforcement of Award, Memorandum, or 
 Certificate. 
 
 69. The County Court Rxdes for the time being in force as to pro- 
 ceedings for the enforcement of or the recovery of money due under 
 judgments or orders of the County Court otherwise than by execution 
 or committal shall, with the necessary modifications, apply to proceed- 
 ings 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 
 statutory provisions and rules relating to new trials in actions in the 
 County Court shall not apply to arbitrations under the Act. 
 
 (2) Where the judge is satisfied — 
 
 (a) that any award, or any order as to the application of any 
 amount awarded or agreed upon as compensation, made by the 
 judge or by an arbitrator appointed by him, has been obtained 
 by fraud or other improper means ; or 
 
 (6) 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 shaE. 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. 
 Act, Sched. 2, 
 par. 4. 
 
 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. 
 
Workmen's Compensation Rules, 1907 759 
 
 72. (1) When the Court of Appeal has given judgment on any ^°P^'|,'f°ipp^°' 
 appeal, any party may deposit the order of the Court of Appeal, or an. vith registrar, 
 ofB.ce copy thereof, with the registrar : and the registrar shall file JJereonr 
 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 re- 
 corded, 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-hear- 
 ing or further hearing, and shall instruct the registrar to give notice 
 thereof forthwith to the parties. 
 
 (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 he taken. 
 
 73. (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 ^^tifkei"^" """^ 
 county court, shall be done in the county court, or by to or before the ^!^i^}^^- ^• 
 judge or registrar of the county court, 
 
 (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 Rule 
 39 mentioned, of the district in which the workman was 
 last employed in the employment to the nature of which 
 the disease was diie ; or 
 
760 Appendix 
 
 (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. 
 
 Detention of (2) An application for an order for the detention of a ship may, 
 
 ^ '^"' subject to the provisions of the rules for the time being in force under 
 
 sEdw.Vii.c.io. the Shipowners' Negligence (Remedies) Act, 1906, be made to the 
 
 Act, sec. 11. . T o , 
 
 judge or any court. 
 Proceedings (3) Where proceedings by way of arbitration for the recovery of 
 
 gfwng secSy. compensation are taken against the persons giving security pursuant 
 sEdw.vil.c. 10. to the Shipowners' Negligence (Remedies) Act, 1905, or section 11 of 
 c , sec. 11. ^^ ^^^ ^^^ Rules 37 and 38, such proceedings may be commenced 
 
 (i) in the county court of the district in which all the parties con- 
 cerned reside ; or 
 
 (ii) i£ the parties concerned reside in different districts, 
 
 (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, Memorandum 
 or Certificate recorded in another Court. 
 Filing of certi- 74. Where an award, or a memorandum under paragraph 9 of the 
 
 fled copy of . • jt 
 
 memorandum. Second schedule to the Act, or a, certificate under sub-section 4 of 
 
 one court under Section 1 of the Act, has been recorded in any court, and any party 
 
 p^'Tbetore' desires to take any subsequent proceedings with reference to the 
 
 talcing Bubse- subject-matter of such award, memorandum, or certificate in any 
 
 ceedingsin other Court, he shall before taking such proceedings obtain from 
 
 anotlier court. 
 
Workmen's Compensation Bides, 1907 761 
 
 the registrar of the first-mentioned court a certified copy of such 
 award, memorandian, 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 heen an 
 award made in the court. 
 
 ZVaws/er of Proceedings. 
 
 75. If the judge is satisfied by any party to any matter under the Transfer. 
 Act pending in his court that such matter can he 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 regfistrar of the court to which such matter is transferred all 
 original documents filed in such matter, and a certified copy of aU 
 records made with reference to such matter, and shall transfer to 
 such last-mentioned court any money invested in his name as regis- 
 trar : 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., Order VIII., 
 Rule 9, shall apply to any such transfer or application for a transfer. 
 
 Transfer of Money paid into Cowrt. < 
 
 76. (1) The provisions of the last preceding rule shall apply to Transfer of 
 the trainsfer of money paid into court from one court to another S™ ranrt! 
 pursuant to paragraph 6 of the first schedule to the Act or otherwise, p^''f°''^' '• 
 and to proceedings with respect to the application of such money. 
 
 (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 Bocwtnents and Notices. 
 77. (1) Where any document is to be filed with the registrar under 
 these Rules, 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 
 B.E.L, 3 D 
 
762 
 
 Appendix 
 
 Act, sec. 2, 
 Bub-secs. 3, 4. 
 
 Order LIV., 
 Bule 2. 
 
 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, docu- 
 ment, or notice may be served on such party, or where he acts by 
 a solicitor, on his solicitor, in manner provided by sub-sections 3 and 4 
 of section 2 of the Act with reference to service of notice in respect of 
 an injury ; and the provisions of Order LIV., Rule 2, shall apply to 
 the service of any such proceeding, document, or notice. 
 
 FrovisionB as to 
 parties acting 
 by solicitors, 
 and as to sub- 
 stituted service, 
 and notice In 
 lieu of service. 
 Order XXIII., 
 Eule i i Order 
 LIV., Rules 1, 
 3 to 6 ; Order 
 VII., Eule 40. 
 Proceedings 
 where Crown 
 a party. 
 
 Service of 
 documents, etc. 
 
 Procedure, 
 where not 
 otherwise 
 provided for. 
 
 ProcedMre Generally. 
 
 78. The provisions of Order XXIII., Rule 6, Order LIV., Rules 
 1 and 3 to 6, and Order VII., Rule 40, as to parties acting by solicitors, 
 and as to substituted service and notice of lieu of service, shall apply to 
 proceedings under the Act. 
 
 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 Commissioners, shall 
 be made a party under his or their of&cial 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 Commis- 
 sioners, may be served on the permanent secretary to the department, 
 subject to the provisions of these rules as to service on parties acting 
 by soUoitors. 
 
 80. Where any matter or thing is not specially provided for under 
 these Rules, 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 pursuance 
 of that Act, 
 
Worhmen's Compensation Bules, 1907 763 
 
 Record of Proceedings. — Special Register. 
 
 81. Proceeding's under tie Act before the judge or an arbitrator Record of 
 appointed by him shall be recorded in the books of the court in the before judge 
 manner in which other proceedings in the court are recorded ; and gpeo^i'"''"'^" 
 the registrar shall also keep a special register for the purposes of the register. 
 Act, in which he shall record — 
 
 (1) A memorandmn 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 req^uested to attend any proceeding 
 in the arbitration, of such summons or request and attendance ; 
 
 (5) A memorandiim 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 ; 
 
 (8) A memorandum of every application to the eonrt for the 
 
 examination of an employer pursTiant to Rule 35, paragraph 
 2, and of the order and proceedings thereon ; 
 
 (9) A memorandum of every appUoation to the court for the 
 
 detention of a ship pursuant to section 11 of the Act and 
 Biules 37 and 38, 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 iaquiry, or by order of the judge ; 
 
764 Appendix 
 
 (12) If such memorandtun is recorded after inquiry, a memorandum 
 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 memorandiuu of an agreement the 
 registrar 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 agree- 
 ment from the register, and of the subsequent proceedings 
 and order thereon ; 
 
 (18) A memorandum of every application to the judge or 
 arbitrator, under paragraph 14 of the second schedule to the 
 Act, to determine the amount of costs to be paid to a 
 soUoitor 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 xmder sub-section 4 of section 1 of 
 the Act given by the court or sent to the registrar from any 
 other court ; 
 
 (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 paragrraph 16 of the first 
 schedule of the Act, and of the order and subsequent pro- 
 ceedings 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 ia relation to com- 
 pensation, or of the right to weekly payments, and of the 
 proceedings and order thereon ; 
 
WmhrmiC s Compensation Rules, 1907 765 
 
 (23) A memorandum of every sum paid into court pursuant to 
 paragraph 6 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 Kule 70, and of the proceedings and 
 order thereon ; 
 
 (29) A memorandum of every certified copy given pursuant to 
 Itule 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 ; 
 
 (31) A memorandum of the transmission of documents and 
 certified copies pursuant to paragraph 11 of Rule 37 or 
 paragraphs (iii) or (iv) of Eule 38 ; 
 
 (32) A memorandum of the transfer of any money paid into 
 court to any other court ; 
 
 (33) The Hke memorandum as to every matter transferred, or 
 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 ; 
 
766 
 
 Appendix 
 
 (34) A memorandum of amy other matter whicli 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. 
 
 References 
 under Act. 
 s. 8 (1) (/). 
 
 Record and 
 returns as to 
 references. 
 
 References to Medical Referees. 
 82. (1) Where a medical referee is summoned as an assessor, or 
 any matter is referred to a medical referee, such referee shall be 
 summoned or the matter shall be referred subject to and in accordance 
 with any regulations made by the Secretary of State and the Treasury; 
 and any such regulations shall so far as they afEeot 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 mentioned provide that an employer or a workman who 
 desires any matter to be referred to a medical referee under para- 
 graph (/) 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 ia the form prescribed by 
 regulations made by the Secretary of State of all cases in which 
 medical referees are summoned as assessors or matters are referred 
 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. 
 
 Matters, how distinguished. 
 
 83. Every matter brought into the court under the Act shall be 
 intituled in the matter of the Act, and shall be distinguished by a 
 separate number ; and aU. documents filed and subsequent proceedings 
 taken in the court with reference to such matter shaU be 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. 
 
 Forms. 
 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. 
 
WorkTmn's Compensation Bules, 1907 767 
 
 Appendix. 
 
 POBM 1, 
 
 AppUcaUon for Arbitration by Injwed Workman viith respect to the 
 
 Compensation pa/yable 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 
 CD. & Co., Limited, 
 of {address) 
 {description) Eespondents. 
 
 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 CD. & Co., Limited, [or by , 
 
 a contractor with CD. & Co., Limited, for the execution of work 
 
 undertaken by them]. 
 
 2. A question has [or Questions have] arisen 
 
 [h,ere state the questions, specifying only those which home arisen, e.g.] — 
 
 (a) as to whether the said A.B. is a workman to whom the 
 
 above-mentioned Act applies : or 
 (6) as to the liability of the said CD. & Co., Limited, to 
 
 pay compensation 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 
 
 said CD. & Co., Limited, 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 requested 
 between the said A.B. and the said CD. & Co., Limited, 
 
 for the settlement of the said question [or questions], 
 
 4. Particulars are hereto appended [or annexed]. 
 
 Particulaes. 
 
 1. Name and address of applicant. 
 
 2. Name, place of business, and _ 
 nature of business of respondent. 
 
 3. Nature of employment of 
 applicant at the time of accident, 
 and whether employed under re- 
 spondent or under a contractor with 
 him. [if employed under a con- 
 tractor who is not a respondent, 
 name cmd place of business of con- 
 tractor to be stated.'] 
 
768 
 
 m 
 
 PabtiouiiABS — continued. 
 
 4. Date and place of accident, 
 nature of work on which workman 
 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 incapacity. 
 
 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 imme- 
 diately 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 compen- 
 sation. 
 
 11. Date of service of statutory 
 notice of accident on respondent, 
 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 appli- 
 cation are : 
 
 Dated this 
 
 day of 
 
 [O 
 
 Applicant, 
 Applicant's Solicitor.] 
 
Workmen's Compensation Rules, 1907 769 
 
 FOBM 2. 
 
 AppUcation for AriitraUon by or on behalf of Dependcmts of Deceased Worh- 
 man, with respect to the CompensaHon payable in respect of the Ivjwy to 
 such Dependants, where Death has resulted from an Injury to the Work- 
 mam, and the Settlement of Questions as to who are Dependamts, and the 
 Apportionment and Application of such Compensation. 
 
 In the County Couit of holden at 
 
 In the matter of the Workmen's Compensation Act, 1906. 
 
 No. of Matter 
 
 In the matter of an Arbitration between 
 E.P. 
 
 of (address) 
 (descripUon) Applicant, 
 
 and 
 CD. & Co., Limited, 
 of (address^ 
 (desciripbuyiii) 
 and 
 G.H. 
 
 of (address) 
 (description) Bespondents. 
 
 lor as the case may be ; see Rule i.] 
 
 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 CD. & Co., Limited, 
 
 lor by a contractor with CD. & 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 
 
 (b) as to the liability of the said CD. & 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 CD. & 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. ; 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 pay- 
 
 able by the said CD. & 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. 
 
 lor as the case may be.] 
 
 3. An arbitration imder the above-mentioned Act is hereby requested 
 between E.F. , the legal personal representative of the 
 
770 
 
 Ajppendix 
 
 said A.B. , acting on behalf of the dependants of the said 
 
 A.B. [or between B.P. , a dependant 
 
 of the said A.B. ] and the said CD. & Oo., 
 
 Limited, and G.H. , 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 lor questions], 
 4. Particulars are hereto appended [or annexed]. 
 
 Pabticdlabs. 
 
 1. Name and late address of 
 deceased workman. 
 
 2. Name, place of business, and ■ 
 nature of business of respondent 
 from whom compensationis claimed. 
 
 3. Nature of employment of 
 deceased at time of accident, and 
 whether employed under respondent 
 or under a contractor with him. llf 
 employed under a contractor who is 
 not a respondent, name and place of 
 busin,ess of contractor to be stated.} 
 
 i. 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 em- 
 ployed, or if the period of his 
 employment had been less then the 
 said 3 years, particulars of his 
 average weekly earnings during the 
 period of his actual employment 
 under the said employer. 
 
 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 applicant 
 for arbitration. 
 
 9. Character in which applicant 
 applies for arbitration, i.e., whether 
 as legal personal representative of 
 deceased or as a dependant, and if 
 as a dependant, particulars showing 
 how he is so. 
 
Workmen's Compensation Rules, 1907 
 
 771 
 
 Paeticulaes — Bontinued, 
 
 10. Particulars as to dependants 
 of deceased by whom or on whose 
 behalf the application is made, 
 giving their names and addresses, 
 a,nd descriptions and oooupatiohs 
 (if any), and their relationship to 
 the deceased, and if infants, their 
 respective ages, and stating whether 
 they were wholly or partially de- 
 pendent 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 dependants, 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 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 before deceased 
 voluntarily left the employment in 
 which he was injured. [A copy of 
 the notice to be cmmexed.'] 
 
 14. 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 : 
 
 CD. & Co., Limited. 
 
 G.H., 
 
 Dated this 
 
 day of 
 
 [Or 
 
 (Signed) 
 
 Applicant. 
 Applicant's Solicitor.] 
 
772 Appendix 
 
 FOBM 3. 
 
 Application for Arbitration as to who are Dependants, or as to the Amount 
 payable to each Dependant, where the total amount Payable as Com- 
 pensation to the Dependants of a Deceased Workman has been agreed or 
 ascertamed. • 
 
 In the County Oouit of holden at 
 
 In the matter of the Workmen's Compensation Act, 1906. 
 
 No. of Matter 
 
 In the matter of an Arbitration between 
 
 B.F., 
 
 of (address) 
 (description) Applicant. 
 
 and 
 CD. & Co., Limited, 
 of (address) 
 
 (description) 
 and 
 G.H., 
 
 of (address) 
 (description) 
 J.K., 
 
 of (address) 
 
 (description) 
 and 
 L.M., 
 
 of (address) 
 (description) Bespondents. 
 
 lor as the case may be ; see Eule 5.] 
 
 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 CD. & Co., Limited, 
 [or by , a contractor with CD. & 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 CD. & 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 
 
 (b) as to the apportionment and application of the compensation 
 
 payable to the dependants of the said A.B. 
 
 [or as the case may 6e.] 
 
Workmen's Compensation Rules, 1907 
 
 773 
 
 3. An arbitration under the above-mentioned Act is hereby requested 
 between B.F. , the legal personal representative of the said A.B. 
 
 , acting on behalf of N.O. P.E. etc., dependants 
 
 of the said A.B. [or between E.P. N.O. P.E. 
 
 etc., dependants of the said A.B. ], and the said CD. & Co., 
 
 Limited, and G.H. J.K. andL.M. 
 
 , who are or claim or may be entitled to claim to be dependants of 
 the said A.B. 
 
 [or as the case may he ; see Bule 5.] 
 for the settlement of the said question [or questions]. 
 
 4. Particulars are hereto appended [or annexed]. 
 
 Pabticulabs. 
 
 1. Name and late address of 
 deceased workman. 
 
 2. Name and place of business of 
 employer by whom compensation 
 has been paid or is payable. 
 
 3. Date of accident to deceased, 
 and date of death. 
 
 4. Agreed or ascertained amount 
 of compensation to be paid to 
 dependants of deceased. 
 
 5. Particulars as td 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 appli- 
 cant applies for arbitration, i.e., 
 whether as legal personal repre- 
 sentative of deceased or as a de- 
 pendant, and if as a dependant, 
 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 dependant on 
 the earnings of the deceased at the 
 time of his death. 
 
 8. -The like particulars as to any 
 dependants who are made re- 
 spondents. 
 
 [Note. — If there is a legal personal 
 rejpresentatwe, and he is not the 
 applicant, he rrmst he made a respon- 
 dent.} 
 
774 Appendix 
 
 Pabtioulabs — continued. 
 
 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, descrip- 
 tions, and occupations (if any). 
 
 10. Particulars of the manner in 
 which the applicant claims to have 
 the amount of compensation appor- 
 tioned 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 : 
 
 CD. & Co. 
 
 Limited 
 
 G.H. 
 
 
 I.K. 
 
 
 L.M. 
 
 
 
 lor as the case may be.} 
 
 Dated this 
 
 day of 
 
 (Signed) 
 
 Applicant. 
 [Or 
 
 Applicant's SoUcitot. 
 
Workmen's Compensation Rules, 1907 775 
 
 Poem 4. 
 
 Application for Arbitration with respect to the Compepsation payable in 
 respect of Expenses 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 Arbitrat on between 
 E.F., 
 
 of (address) 
 
 (description) Applicant, 
 
 and 
 CD. & Co., Limited, 
 of (address) 
 
 (description) 
 and 
 G.H., 
 
 of (address) 
 
 (description) 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. , late of 
 
 , deceased, a workman employed by CD. & Co., Limited, 
 [or by , a contractor with CD. & 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. 
 
 3. A question has [or Questions have] arisen 
 
 [here state the questions, specifying only those which ha/ve a/risen ; e.g.] — 
 
 (a) as to whether the said A.B. was a workman to 
 
 whom the above-mentioned Act applied ; or 
 
 (b) as to the liability of the said CD. & Co., Limited, 
 
 to pay compensation under the above-mentioned Act in respect 
 . of the reasonable expenses of the medical attendance oij and 
 the burial of the said A.B. ; or 
 
 (c) as to the amount of compensation payable by the said CD. & Co., 
 
 Limited, under the above-mentioned Act in re- 
 
 spect of the reasonable expenses of the medical attendance on 
 and the burial of the said A.B. ; or 
 
 (d) as to the apportionment and application of the compensation 
 
 payable by the said CD. & Co., Limited, under 
 
 the above-mentioned Act in respect of the reasonable 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 requested 
 between B.P. and the said CD. & Co:, Limited, 
 
 and G.H. for the settlement of the said question [or questions]. 
 
 5. Particulars are hereto appended [or annexed]. . , , 
 
776 
 
 Appendix 
 
 Pabticulabs. 
 
 1. Name and late address of 
 deceased woikman:. 
 
 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 respondent 
 or under a contractor with him. 
 llf employed under a contractor who 
 is not a respondent, name and place 
 of business of contractor to be 
 stated.] 
 
 i. 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. Name and address of applicant 
 for arbitration. 
 
 7. Character in which applicant 
 applies for arbitration, i.e., whether 
 as legal personal representative of 
 deceased or as a person to whom 
 expenses in respect of which com- 
 pensation is payable are due; and 
 if the latter, particulars must be 
 given of the circumstances 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 respondents, 
 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, 
 
 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 a/rmexed,] 
 
 H. If notice not served, reason 
 for omission to serve same. 
 
Wc/rkmen's Compensation Rules, 1907 777 
 
 The names and addresses Of the applicant and his solicitors are : 
 Of the Applicant, 
 
 Of his Solicitor, 
 
 The names and addresses of the respondents to be served with this 
 application are : 
 
 CD. & Co., Limited. 
 
 G.H. 
 
 Dated this day of 
 
 (Signed) Applicant. 
 
 [Or 
 
 Applicant's Solicitor.] 
 
 FOBM 5. 
 
 AppUcation for Arbitration with respect to the Review, TerrmnaUon, 
 Dirmmution, Increase, or Bedemption of a Weekly Pa/yment. 
 
 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 
 CD. & Co., Limited, 
 of (address) 
 (description) Applicants, 
 
 and 
 A.B., 
 
 of {address) 
 
 (description) Bespondent. 
 
 [or as the case may he; see Act, Sched. 1, pars. 16, 17.] 
 
 An arbitration under the Workmen's Compensation Act, 1906, is hereby 
 requested between CD. & 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 \pr 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]. 
 
 B.E.L. 3 E 
 
778 
 
 Appendix 
 
 PABTIODLAEB. 
 
 1. Name and address of injured 
 workman. 
 
 2. Name and place of business of 
 employer by whom compensation is 
 payable. 
 
 3. Date and nature of accident. 
 
 4. Date of agreement, decision, 
 award, or certificate fixing weekly 
 payment, amount of such payment, 
 and date from which it commenced. 
 
 5. Belief sought by applicant, 
 whether termination, diminution, 
 increase, or redemption. 
 
 6. Grounds on which termination, 
 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 applica- 
 tion are : 
 
 Dated this day of 
 
 (Signed) 
 
 [Or 
 
 Applicants. 
 
 Applicants' Solicitor.] 
 
 POBM 6. 
 
 Application for Arbitration by an Injured Master, Seaman, Apprentice, 
 or Pilot, viith respect to the Compensation payable to Iwm. 
 
 In the County Court of holden at 
 
 In the matter of the Workmen's Compensation Act, 1906. 
 
 No. of Matter 
 
Workmen's Gompensation Rules, 1907 779 
 
 In the matter of an Aibitiation between 
 
 A.B. 
 
 of (address) 
 
 (descrvpUon) Applicant, 
 
 and 
 The owners 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 \pr Questions have] arisen 
 
 [here state the questions, spedfyiTig 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 
 
 (6) as to the liability of the owners of the said ship to pay compensa- 
 tion 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 requested 
 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]. 
 
 Pabticulaes. 
 
 1. Name and address of applicant. 
 
 ■ *2. Name of ship, of which appli- 
 cant 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 at time 
 of accident. 
 
 4. Date and place of accident, 
 nature of work on which applicant 
 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 incapacity. 
 
'780 
 
 A'pye.indix 
 
 PabtiouiiABB — eontintied. 
 
 7. Average weekly earnings dvning 
 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 employ- 
 ment or business after the accident. 
 
 9. Payment, allowance or benefit 
 received from employer during the 
 period of incapacity. 
 
 10. Amount claimed as com- 
 pensation. 
 
 11. Date of service of statutory 
 notice of accident, and whether 
 given before applicant voluntarily 
 left the employment in which he 
 was injured. [4 copy of the notice 
 to beamneaied.} 
 
 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 application 
 as representing the owners of the ship are : 
 
 « 
 [State name aif\A address of momagmg owner or manager, or of master of 
 sMp. See Rule 36 (6).] 
 
 Dated this 
 
 day of 
 (Signed) 
 
 [Or 
 
 Applicant. 
 Applicant's Solicitor.] 
 
Workmen's Oom^ensation Bides, 1907 781 
 
 POBM 7. 
 
 AppUcatian for Arbitration by or on behalf of Dependants of Deceased 
 Master, Seaman, Aprprentlce, or Pilot. 
 
 In the Ooimty Court of holden at 
 
 In the matter of the Worktaeu's Oompeusatiou Act, 1906. 
 
 No. of Matter 
 In the matter of an Arbitration between 
 E.F. 
 
 of (address) 
 (desmption) Applicant, 
 
 and 
 The owners of the Ship " " 
 
 and 
 G.B. 
 
 of (address) 
 (desoripUon) Respondents. 
 
 [or as the case may be ; see Rule 4.] 
 
 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 
 
 (b) as to the liability of the owners of the said ship to pay compensa- 
 
 tion xmder 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 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 pay- 
 
 able 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 6e.] 
 
782 
 
 Appendix 
 
 3. An arbitration under the above-mentioned Act is hereby requested 
 between E.P. , the legal personal representative of the said 
 A.B. lor between E.P. , a dependant of the said 
 A.B. ] and the owners of the said ship, and G.B. , 
 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]. 
 
 Pabticulabb. 
 
 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 
 deceased was employed as 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 bis em- 
 ployment had been less than the 
 said 3 years, particulars of his 
 average weekly earnings 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. 
 
 8. Name and address of applicant 
 for arbitration. 
 
 9. Character in which applicant 
 applies for arbitration, i.e., whether 
 as legal personal representative of 
 deceased or as a dependant, and if 
 as a dependant, particulars showing 
 how he is so. 
 
Workmen's Compensation Rules, 1907 
 
 783 
 
 Particulaes — continued. 
 
 10. Particulars as to the de- 
 pendants 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 re- 
 lationship to the deceased, and if 
 infants, their respective ages, and 
 stating whether they were wholly 
 or partially dependent on the earn- 
 ings 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 dependants, 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 applicant 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 armexed.2 
 
 14. 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 : 
 
 As representing the owners of the ship 
 
 [State name and address of ma/naging owner or manager, or of master of 
 sMp. See Rule 36 (6).] 
 
 and G.B., 
 
 Dated this day of 
 
 [Or 
 
 (Signed) Applicant. 
 
 Applicant's Solicitor.] 
 
784 Appendix 
 
 Form 8. 
 
 AppUcation for Arbitration where Securiiy has been given on behalf of the 
 Owners of a Ship tmder Section 11. 
 
 In the County Court of holden at 
 
 In the matter of the Workmen's Compen 
 
 In the matter of an Arbitration between 
 
 In the matter of the Workmen's Compensation Act, 1906. 
 
 No. of Matter 
 
 A.B., 
 
 of {address) 
 (description) Apphoant, 
 
 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 
 imder 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 pro- 
 ceedings that may be instituted in respect of the said injury, and to pay 
 such compensation and costs as may be awarded thereon. 
 
 3. A question has [or Questions have] arisen 
 
 {here state the guestions, specifying only those which have arisen, eg.} — 
 {a) as to whether the said A.B. is a workman to whom 
 
 the above-mentioned Act applies ; or 
 (6) as to the liability of the owners of the said ship to pay compensa- 
 tion 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.} 
 
 i. An arbitration under the above-mentioned Act is hereby requested 
 between the said A.B. and the respondents for the 
 
 settlement of the said question [or questions]. 
 
 5. Particulars are hereto appended [or annexed]. 
 
 Pabtioulaes. 
 
 [Here insert particulars of circumstances under which the application is 
 made, and of the relief or wder which the applicant claims, adapting (he 
 particulars in the preceding forms to the circumstances of the case."] 
 
 The names and addresses, etc., [as in Form 1.] 
 
 Note. — This form to be adapted as required to a/n application for arbi- 
 tration as between the dependants of a deceased workman and the persons 
 giving security. 
 
Worhvaen's Compensation Rules, 1907 785 
 
 FOEM 9. 
 
 AppViMitton for ArHfralion by WorJcman disabled by or suspended on aecouni 
 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 
 
 In the matter of an Arbitration between 
 
 A.B., 
 
 of (address) 
 (descrvpiion) Applicant, 
 
 and 
 CD. & Co., Limited, 
 of (address) 
 (description) Bespondents. 
 
 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. 
 
 [O 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. aUeges 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 CD. & Co., Limited, of 
 
 3. A question has [or Questions have] arisen 
 
 [here state the gitestions, 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 
 (6) as to the liability of the said CD. & 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 CD. 
 
 & Co., Limited, ; or 
 
 (d) as to whether the said disease is due to the nature of the employ- 
 
 ment of the said A.B. under the said 
 
 CD. & Co., Limited, ; or 
 
 (e) as to the amount [or duration] of the compensation payable by the 
 
 said CD. & Co., Limited, to the said 
 
 A.B. under the Workmen's Compensation Act, 1906, 
 
 in respect of the said disease. 
 
 [or as the case rnaiy be.] 
 
786 
 
 Appendix 
 
 i. An arbitration under the above-mentioned Act is hereby requested 
 between the said A.B. and the said 
 
 CD. & Co., Limited, for the settlement of the 
 
 said question [or questions]. 
 
 5. Particulars are hereto appended [or annexed]. 
 
 PAETICniiAES. 
 
 1. Name and address of applicant. 
 
 2. Name, place of business, and 
 nature of business of respondents. 
 
 3. Nature of employment of ap- 
 plicant under respondents to which 
 the disease was due. 
 
 4. Nature of Disease. 
 
 5. Date of disablement or sus- 
 pension. 
 
 6. Names and addresses of all 
 other employers by whom applicant 
 was employed in the same employ- 
 ment 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 incapacity. 
 
 8. Average weekly earnings 
 during the 12 months previous to 
 date of disablement or suspension, 
 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 suitable employ- 
 ment or business. 
 
 10. Payment, allowance, or benefit 
 received bova. employer during period 
 of incapacity. 
 
 11. Amount claimed as compensa- 
 tion. 
 
 12. Date of service of statutory 
 notice of disablement or suspension 
 on respondents. [A copy of the 
 notice to he a/nnexed.} 
 
 13. If notice not served, reason 
 for omission to serve same. 
 
 The names and addresses, etc. las in Form 1.] 
 
Workmen's Compensation Rules, 1907 787 
 
 FOBM 10. 
 
 A'pplication for Arbitration by or on behalf of Dependamts of Deceased 
 Worknum whose death fcas been caus^ by Industrial Disease. 
 
 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 
 B.P. 
 
 of (address) 
 
 (description) Applicant, 
 
 and 
 
 CD. & Co., Limited, 
 of (address) 
 
 and 
 
 G.H. 
 
 of (address) 
 
 (desoription) Eespondents. 
 
 lor as the case may be ; see Rule 4.] 
 
 1. On the day of Mr. the certifying 
 surgeon 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 sufEeriug 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 ; and on the 
 day of the said A.B. died, his death being 
 
 caused by the said disease. 
 
 [O 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, and on 
 the day of the said A.B. died, his death 
 
 being caused by the said disease.] 
 
 [Or 1. On the day A.B. late of 
 
 died, his death being caused by , a disease 
 
 coming within section 8 of the Workmen's Compensation Act, 1906.] 
 
 2. The applicant alleges that the above-mentioned disease was due to the 
 nature of the employment of the said A.B. in 
 
 (describe employment), and that he was last employed in such employment 
 within the twelve months previous to his disablement or suspension [or, if 
 the\ worhman died without homing obtained a certificate of disablement, or 
 was not at the time of his death in receipt of a weekly payment on account of 
 disahlemsnt, within the twelve months previous to his death] by CD & 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. was a workman to 
 
 whom the Workmen's Compensation Act, 1906, applied; or 
 
788 
 
 Appendix 
 
 (9) 
 
 (b) as to the liability of the said CD; & Co., Limited, 
 to pay oompenBation under the Workmen's Compensation Aot, 
 1906, 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 whether the said disease was in fact contracted whilst the said 
 A.B. was in the employment of the said O.I>. & Co., 
 Limited, ; or 
 
 {d) as to whether the said disease was due to the nature of the employ- 
 ment of the said A.B. under the said CD. & Co., 
 Limited, ; or 
 
 (e) as to whether the death of the said A.B. was in fact 
 
 caused by the said disease ; or 
 
 (/) as to the amount of compensation payable by the said CD. & Co., 
 Limited, to the dependants of the said 
 
 A.B. under the above-mentioned Aot in respect 
 
 of the injury caused to them by the death of the said A.B. 
 ; or 
 as to who are dependants of the said A.B. within the 
 
 meaning of the above-mentioned Act ; or 
 
 (h) as to the apportionment and application of the compensation pay- 
 able by the said CD. & 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 ma/y 'be.'] 
 
 4. An arbitration under the above-mentioned Act is hereby requested 
 between B.F. , the legal personal representative of the said A.B. 
 
 , acting on behalf of the dependants of the said A.B. 
 \or between Ej.F. , a dependant of the said A.B. ,] 
 
 and the said CD. & Co., Limited, and G.H. , who 
 
 claims or may be entitled to claim to be a dependant of the said A.B. 
 
 [or as the case may be ; see Bule 4.] 
 for the settlement of the said question [or questions]. 
 
 5. Particulars are hereto appended [or annexed]. 
 
 PABTIOUriABS. 
 
 1. Name and late address of 
 deceased workman. 
 
 2. Name, place of business, and 
 nature of business of respondents 
 from whom compensation is claimed. 
 
 3. Nature of employment of 
 deceased under respondents to 
 which the disease was due. 
 
 4. Nature of disease. 
 6. Date of disablement, and date 
 
 of death. 
 
 6. Earnings of deceased during 
 the 3 years next preceding disable- 
 ment, if he has been so long in the 
 employment of the respondents, or 
 if the period of his employment had 
 been less than the said 3 years, 
 particulars of his average weekly 
 earnings during the period of his 
 actual employment under the 
 respondents. 
 
Workmen's Compensation Rules, 1907 
 
 789 
 
 PABTionriAES — continued. 
 
 7. Names and addresses of all 
 other employers by whom deceased 
 was employed in the same employ- 
 ment during the 12 months preyious 
 to the date of disablement. 
 
 8. Amomit of weekly payments 
 (if any) made to deceased mider the 
 Act, and of any Imup sum paid in 
 redemption thereof. 
 
 9. Name and address of applicant 
 for arbitration. 
 
 10. Character in which applicant 
 applies for arbitration, i.e., whether 
 as legal personal representative of 
 deceased or as a dependant, and if 
 as a dependant, particulars showing 
 how he is so. 
 
 11. Particulars as to dependants 
 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 de- 
 pendent on the earnings of the 
 deceased at the time of his death. 
 
 12. 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, and 
 descriptions and occupations (if 
 any). 
 
 13. Particulars of amount claimed 
 as compensation, and of the manner 
 in which the applicant claims to 
 have such amount apportioned and 
 applied. 
 
 14. Date of service of statutory 
 notice of disablement. \_A copy of 
 the notice to he annexed.'] 
 
 15. If notice not served, reason 
 for omission to serve same. 
 
 The names and addresses, etc. [as in Form 2]. 
 
790 Appendix 
 
 FOBM 11. 
 
 Application for Arbitration where rights of Employer against Insurers 
 I are tram,sf erred, to 'Workman under Section 5. 
 
 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) 
 
 (desoription) Applicant, 
 
 and 
 (name and address of 
 Insv/rers) Eespondents. 
 
 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 
 of (name and address of employer), 
 
 [or by of , a contractor with 
 
 (name wnd address of employer) for the execution of work undertaken by 
 him], and the said A.B. claims that the said (employer) 
 
 thereupon became liable to pay compensation under the Workmen's Com- 
 pensation Act, 1906, to the said A.B. in respect of such injury. 
 
 [Or, where weekly payment has been settled, 
 
 1. Under an agreement [or a decision or an award or a certificate] recorded 
 in this court on the day of a weekly payment of is 
 
 payable by of (name and address 
 
 of employer) to the above-mentioned A.B. as compensation 
 
 for personal injury caused to the said A.B. by accident 
 
 arising out of and in the course of his employment as a workman employed 
 by the said (employer) [or by 
 
 of , a contractor with the said (employer) 
 
 for the execution of work undertaken by him].] 
 
 2. The respondents are insurers of the said 
 
 (employer) in respect of his [or their] liability to pay such compensation. 
 
 3. The said (employer) has become a bankrupt [or 
 made a composition or arrangement with his creditors [or, if the employer 
 is a compam/y, The said has commenced to be wound up] ; 
 and the rights of the said (employer) against the 
 respondents as such insurers in respect of his [or their] liability to the 
 said A.B. have by virtue of section 5 of the said 
 Act been transferred to and vested in the said A.B. 
 
 i. 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 said (employer) to pay 
 
 compensation under the above-mentioned Act m respect of the 
 said injury ; or 
 
 (c) as to the li?.bility of the respondents as such insurers as aforesaid 
 
 to the said A.B. ; or 
 
 (d) as to the amount [or duration] of the liability of the respondents 
 
 as such insurers as aforesaid to the said A.B. : 
 
 [or as the case may be.} 
 
Workmen's Compensation Bides, 1907 791 
 
 5. An arbitration under the above-mentioned Aot is hereby requested 
 between the said A.B. and the respondents for the 
 settlement of the said question \pr questions]. 
 
 6. Particulars are hereto appended [or annexed], 
 
 Pabticulabs. 
 
 (Here insert partioulars contammg a concise statement of the circum- 
 stances under wMch the appUcation is^made, and of all matters necessary to he 
 stated in order to bring the qvssHons to be settled properly before the judge or 
 arbitrator, and of the reli^ or order which the applicant claims, adapting 
 the particulars given in, the preceding Jorms to the oircmnstances of the case.) 
 
 The names and addresses of the applicant and his solicitot are 
 
 Of the Applicant, 
 
 Of his Solicitor, 
 
 The name and address of the respondents to be served with this 
 application are : 
 
 Dated this day of 
 
 (Signed) Applicant. 
 
 [O 
 
 Applicant's Solicitor.] 
 
 Note. — This form to be adapted as required to am application for arbitra- 
 tion as between the dependants of a deceased workman and insurers. 
 
 , FOBM 12. 
 
 Notice to Applicant of Day upon wMch Arbitration will be proceeded with. 
 
 ISeadmg as in Bequest for Arbitration.'] 
 
 Take Notice, that the judge of this Court [or Mr. the 
 
 arbitrator appointed by the judge of this Court] will proceed with the 
 arbitration in this matter at on the day of 
 
 at the hour of o'clock in the noon. 
 
 Dated this day of . 
 
 To 
 Of 
 
 Eegistrar. 
 
792 A](^endix 
 
 POBM 13. 
 
 Notice to Respondent of Day upon wMch Arbitration will be proceedsA with, 
 {Headmg as in Bequest for Arbiiration.'i 
 
 Take Notice, that the judge of this Court lor Mr. the 
 
 arbitrator appointed by the judge of this Court] will proceed with the 
 arbitration applied for in the request and particulars a sealed copy of which 
 is served herewith at on the day of at the 
 
 hour of o'clock in the noon : and that if you do not attend 
 
 either in person or by your solicitor at the time and place above mentioned 
 such order will be made and proceedings taken as the judge [or arbitrator] 
 may think just and expedient. 
 
 And further take notice, that if you wish to disclaim any interest in the 
 subject-matter of the arbitration, or consider that the applicant's particulars 
 are in any respect inaccurate or incomplete, or desire to bring any fact or 
 document to the notice of the judge [or arbitrator], or intend to rely on 
 any fact, or to deny (wholly or partially) your liability to pay compensation 
 under the Act, you must file with me an answer, stating your name and 
 address and the name and address of your solicitor (if any), and stating 
 that you disclaim any interest in the subject-matter of the arbitration, or 
 stating in what respect the applicant's particulars are inaccurate or in- 
 complete, or stating concisely any fact or document which you desire to 
 bring to the notice of the judge [or arbitrator], or on which you intend to 
 rely, or the grounds on and extent to which you deny liability to pay 
 compensation. 
 
 Such answer, together with a copy thereof for the judge [or arbitrator], 
 and a copy for the applicant and for each of the other respondents, must be 
 filed with me ten clear days at least before the day of 
 
 If no answer is filed, and subject to such answer, if any, the applicant's 
 particulars and your liability to pay compensation will be taken to be 
 admitted. 
 
 Dated this day of 
 
 To 
 Of 
 
 Begistrar. 
 
 FOBLI 14. 
 
 Answer by Respondents. 
 
 [Not to be pri/nted, but to be used as a Precedent.'] 
 
 [Headmg as in Bequest for Arbitration.'] 
 
 Take Notice— 
 
 That the respondent, G-.H., disclaims any interest in the subject 
 
 matter of the above arbitration. 
 
 Or 
 
 That the respondents, CD. & Co., Limited, state that the applicant's 
 particulars filed in this matter are inaccurate or incomplete in the 
 particulars hereto annexed. 
 
 Or 
 
 That the respondents, CD. & Co., Limited, desire to bring to the 
 
 notice of the judge [or arbitrator] the facts stated in the particulars hereto 
 annexed. 
 
WorJcmen's Compensation Rules, 1907 793 
 
 Or 
 
 That the respondents, CD. & Co., Limited, intend at the hearing of the 
 arbitration to give evidence and rely on the facts stated in the particulars 
 hereto annexed. 
 
 Or 
 
 That the respondents, CD. & Co., Limited, deny their liability to 
 
 pay compensation under the Act in respect of the injury to A.B. 
 mentioned in the applicant's particulars, on the grounds stated in the 
 particulars hereto annexed. 
 
 PaBTIOUIiAES. 
 
 1. Particulars in which the particulars filed by the Applicant are inaccurate 
 
 or incomplete. 
 
 2. Facts which the Respondents desire to bring to the notice of the Judge [or 
 
 Arbitrator]. 
 
 That the applicant A.B. refuses to submit himself to medical 
 
 examination as required by [or obstructs the medical examination required 
 by] the respondents, CD. & Co., Limited, in accordance with 
 
 paragraph 4 of the first schedule to the Act [or refuses to submit himself 
 for examination by a medical referee as ordered [or obstructs the examina- 
 tion by a medical referee ordered] in accordance with paragraph X5 of the 
 first schedule to the Act.] 
 
 [or as the case may be.} 
 
 B.E.L. 
 
 8 F 
 
794 Appendix 
 
 3. Facts wMch the Respondents CD. & Co., Limited, intend to give in 
 evidence and rely on at the hearing of the Arhitration. 
 
 That notice of the alleged aooident [or of death, disablement or sus- 
 pension] was not given to the respondents as required by the Act ; or 
 
 That the claim for compensation was not made on the respondents 
 within the time limited by the Act ; or 
 
 That a scheme of compensation [benefit or insurance] for the workmen 
 of the respondents, CD. & Co., Limited, has been duly 
 
 certified by the Registrar of Friendly Societies, and such certificate was 
 in force at the date of the alleged accident, and the said CD. & Co., 
 Limited, contracted with the applicant A.B. [or with 
 
 the deceased workman], by a contract which was in force at the date of 
 the alleged accident, that the provisions of the said scheme should be 
 substituted for the provisions of the • Act, and the said CD. & Co,, 
 Limited, are consequently liable only in accordance with 
 
 the said scheme. 
 
 lor as the case may 5e.] 
 
 4. Qrownds on which the Respondents dewy their Liability to pay 
 
 (i) That the applicant A.B. is lor the deceased workman was] 
 
 not a workman to whom the Act applies ; or 
 
 (ii) That the injury to the applicant [or deceased workman] was not 
 caused by accident arising out of and in the course of his 
 employment; or 
 
 (iii) That the injury to the applicant [or to the deceased workman] 
 was attributable to. the serious and wilful misconduct of the 
 applicant [or of the deceased workman], and did not result in 
 death of serious and permanent disablement ; or 
 
 (iv) That at the time of the alleged accident the applicant lor the 
 deceased workman] was not immediately employed by the 
 respondents, but was employed by of , 
 
 a contractor with the respondents for the execution by or under 
 such contractor of work undertaken by the respondents, and the 
 accident occurred elsewhere than , on, in, or about premises on 
 which the respondents had undertaken to execute the work or 
 which were otherwise under the control or management of the 
 respondents ; or 
 
 (v) That the injury to the applicant lor to the deceased workman] was 
 caused under circumstances creating a legal liability in a person 
 other than the respondents, to wit, Iname cmd 
 
 address of siich person^ to pay damages in respect thereof, and 
 the applicant lor the deceased workman] has taken proceedings 
 against that person and has recovered damages from him ; or 
 in case of industrial disease, 
 
 (vi) That the applicant [or the deceased workman] at the time of 
 entering the employment of the respondents wUfuUy and. falsely 
 represented himself in writing as not having previously suffered 
 from the disease mentioned in the applicant's particulars ; or 
 
WorJcmen's Compensation Rules, 1907 795 
 
 (vii) That the disease mentioned in the applicant's particulars was 
 not contracted whilst the applicant [or the deceased workman] 
 was in the employment of the respondents ; or 
 (viii) That the disease mentioned in the applicant's particulars was 
 not due to the nature of the employment in which the applicant 
 \or the deceased workman] was employed by the respondents ; 
 \pr as the case may be.'] 
 And further take notice, that the names and addresses of the said 
 respondents and their solicitors are : 
 of the Bespondents, 
 
 O.D. & Co., Limited, 
 of their Solicitors, 
 Dated this day of 
 
 (Signed) 
 
 Solicitors for the Bespondents, 
 To the Eegistrar of the Court, and CD. & Co., Limited. 
 
 To the Applicant, A.B., and 
 To the Bespondents 
 
 {if any, naming them). 
 
 FOBM 15. 
 
 Notice by Bespondent admitting Liability, and submitting to an Award for 
 Payment of a Weekly Sum, or paying Money into Court. 
 
 INot to be printed, but to be used as a Precedent.'] 
 
 IHeading as in Bequest for Arbitration.] 
 
 Take Notice — 
 
 That the respondents, O.D. & Co., Limited, admit their liability 
 
 to pay compensation in the above-mentioned matter. 
 
 And they hereby submit to an award for payment by them to the 
 applicant, A.B., of the weekly simi of such weekly payment 
 
 to commence as from the day of and to continue during 
 
 the total or partial incapacity of the said A.B. for work, or until the 
 
 same shall be ended, diminished, increased, or redeemed in accordance 
 with the provisions of the above-mentioned Act, 
 
 And for payment by them to the applicant forthwith after the 
 
 award of the amount of such weekly payments calculated from the 
 day of until the first Saturday [or other usual pay day] after the 
 
 date of the award, and for the payment thereafter of the said sum of 
 to the applicant on Saturday [or other usual yay day] in every 
 
 week. 
 
 [Or, And the said O.D. & Co., Limited, herewith pay into Court 
 
 the sum of B in satisfaction of such liability.] 
 
 Dated this day of 
 
 (Signed) 
 
 Solicitors for the Bespondents, 
 
 To the Begistrar of the Court, and CD, & Co., Limited. 
 
 To the Applicant A.B., and 
 
 To the Bespondents 
 
 (if any, nammiig them). 
 
796 Appendix 
 
 FOBM 16. 
 
 Notice offlUng of Submission to em Award. 
 [Heading as in Beguest for Arbitration.'] 
 Take Notice — 
 
 That the respondents, CD. & Co., Limited, have this day filed 
 
 with me a notice (copy of which is sent herewith) that they admit their 
 liahility to pay compensation in the above-mentioned matter, and suhmit 
 to an award for payment by them to you of the weekly sum of 
 
 If you elect to accept such weekly sum in satisfaction of your claim, 
 you must send to the registrar of this Court, and' to the said CD. & Co., 
 Limited, a written notice forthwith by post, or leave such notice 
 
 at the office of the registrar, and at the residence or place of business of 
 the said CD. & Co., Limited. 
 
 If you send such notice, the judge of this Court will, on application 
 made to him, make an award directing payment of such weekly sum to 
 you, and you will be liable to no further costs. 
 
 In default of such notice, the arbitration will be proceeded with ; and 
 if no greater weekly payment is awarded to you, you will be liable to be 
 ordered to pay the costs incurred by the respondents subsequent to the 
 receipt by you of this notice. 
 
 Dated this day of 
 
 To the Applicant, A.B. 
 
 Begistrar. 
 
 FOBM 17. 
 
 Notice of Payment into Cov/rt. 
 [Heading as in Beguest for Arbitration.'] 
 
 Take Notice — 
 
 That the respondents, CD. & Co., Limited, have this day filed with 
 me a notice that they admit their liability to pay compensation in the 
 above-mentioned matter, and they have paid into Court the sum of £ 
 in satisfaction of such liability. 
 
 If you are willing to accept the sum so paid into Court in satisfaction 
 of the compensation payable in the above-mentioned matter, you must, 
 send to the registrar of this Court, and to the said CD. & Co., Limited, 
 and to the other respondents [or, w'here this notice is sent to a 
 respondent, to the applicant and the other respondents], a written notice 
 forthwith by post, or leave such notice at the office of the registrar, and at 
 the residence or place of business of the said CD. & Co., Limited, 
 and at the residence or place of business of each of the other respondents] 
 or of the applicant and each of the other respondents]. 
 
 If you and all the other respondents [or If you and the applicant and 
 all the other respondents] send such notice, and agree as to the apportion- 
 ment and application of the said sum of £ , the judge of this Court 
 vdll, on application made to him, make an award for such apportionment 
 and application, and you will be liable to no further costs. 
 
 If you and all the other respondents [or If you and the applicant and 
 all the other respondents] send such notice, but do not agree as to the 
 apportionment and application of the said sum of £ , the arbitration 
 
 will be proceeded with as between you and such other respondents [or as 
 between the applicant and yourself and such other respondents]. 
 
Worhmen's Compensation Bules, 1907 797 
 
 lu default of such notice being sent by you and all the other respondents 
 [or by the applicant and yourself and all the other respondents], the 
 arbitration wiQ be proceeded with : and if uo greater amount than the 
 said sum of & is awarded as compensation, the parties who do not 
 
 send such notice will be liable to be ordered to pay the costs incurred by 
 the respondents, O.D. & Co., Limited, subsequent to the receipt 
 
 by such parties of this notice, and also any costs incurred subsequent to the 
 receipt of this notice by any parties who send notice of their willingness to 
 accept the said sum of & in satisfaction of the compensation payable 
 
 in the above-mentioned matter. 
 
 Dated this day of 
 
 Registrar. 
 
 To the Applicant, A.B., 
 [or To the Respondent, G.H.] 
 (or as the case may be). 
 
 POBM 18. 
 
 Notice of Acceptance of Weekly Sum offered, or of Willingness to 
 accept Sum paid into Gov/rt. 
 
 [Not to be printed, but to be used as a Precedent.'] 
 [SeaMng as in Bequest for Arbitration.} 
 Take Notice — 
 
 That the applicant, A.B. accepts the weekly sum offered by the 
 
 respondents, O.D. & Co., Limited, in satisfaction of hia claim in the 
 
 above-mentioned matter [or, that the appUoaut, E.P. [or, the respondent, 
 G.H.] is willing to accept the sum of £ paid into Oourt by the 
 
 respondents, O.D. & Oo., Limited, in satisfaction of the compensa- 
 
 tion payable in the above-mentioned matter]. 
 
 But the applicant [or the said respondent, G.H. ] will 
 
 apply to the judge to include in his award an order directing the said 
 respondents, O.D. & Co., Limited, to pay the costs properly 
 
 incurred by the applicant [or the said respondent, Q-.H. ] 
 
 before the receipt of notice of the offer of the said weekly sum [or of notice 
 of payment of the said sum of £ into Oourt]. 
 
 Dated this day of 
 
 (Signed) 
 
 Applicant. 
 [Or 
 To the Registrar of tie Court, and Respondent.] 
 
 To the Respondents, O.D. & Co., Limited, and 
 To the Applicant, A.B., and 
 To the Respondents 
 {naming them). 
 
798 Appendix 
 
 POBM 19. 
 
 Application for Addition of Employer as Bespondent under Section 8, 
 Sub-section (1), Paragraph (c), Proviso (ii), 
 
 [Not to be printed, but to be used as a Precedent.} 
 
 {Heading as in Request for Arbitration.'] 
 
 Take Notice — 
 
 That the respondents, CD. & Co., Limited, allege that the disease 
 
 mentioned in the applicant's particnlars filed in this matter was in fact 
 contracted while the applicant [or the deceased worljman] was in the 
 employment of of , and not whilst in the 
 
 employment of the said CD. & Co., Limited. 
 
 And the said CD. & Co., Limited, herehy apply for an order that 
 
 the said be joined as respondents in the 
 
 above arbitration, and if necessary for an adjournment of the hearing of 
 the arbitration. 
 
 Dated this day of 
 
 (Signed) CD. & Co., Limited. 
 By 
 
 Secretary. 
 
 [Or 
 
 Solicitors for the Respondents, 
 CD. & Co., Limited.] 
 
 To the Registrar of the Court, 
 
 FOBM 20. 
 
 Order adding Respondents. 
 
 [Heading as in Bequest for Arbitration.'] 
 
 It is this day ordered on the application of the respondents, CD. & Co., 
 Limited, that of 
 
 be added as respondents to this arbitration [and that the hearing of this 
 arbitration be adjourned to the day of at 
 
 o'clock in the noon.] 
 
 Dated this day of 
 
 Registrar. 
 
Worhmen's Compensation Rules, 1907 799 
 
 FOBM 21. 
 
 Notice to Applicant and Original Respondents of Addition of Respondents. 
 
 [Heading as in Request for Arbitration.^ 
 Take Notice — 
 
 That by order dated the day of it was ordered 
 
 on the application of the respondents, O.D. & Co., Limited, (a copy 
 
 whereof is hereto annexed), that of 
 
 be added as respondents to this arbitration [and that the hearing of this 
 arbitration be adjourned to the day of at 
 
 o'clock in the noon. 
 
 Dated this day of 
 
 Begistrar. 
 To the Applicant 
 
 and 
 The Respondents, 
 
 CD. & Co., Limited. 
 
 FOBM 22. 
 
 Notice to Parties who aire added as Respondents, 
 [Heading as in Reguest for Arbitration.] 
 
 To Messrs. of 
 
 (address and description.) 
 
 Take Notice — 
 
 That by an order of this Court, dated the day of 
 
 a copy of which order is hereunto aimexed, together with a copy of the 
 request and particulars filed by the applicant in this matter, and a copy of 
 the application on which the said order was made, you were ordered to be 
 added as a respondent in the above arbitration. 
 
 And further take notice, that the hearing of the above arbitration has 
 been appointed for the day of 
 
 at o'clock in the ' noon, and that if you do not attend, either in 
 
 person or by your solicitor, at the court-house at upon the 
 
 day and at the hour above mentioned, such order will be made and pro- 
 ceedings taken as, the judge [or arbitrator] may think just and expedient. 
 
 And further take notice, that if you wish to disclaim any interest in 
 the subject-matter of ' the arbitration, or consider that the _ applicant's 
 particulars are in any respect inaccurate, or incomplete, or desire to bring 
 any fact or document to the notice of the judge [or arbitrator], or intend to 
 rely on any fact, or to deny (wholly or partially) your liability to pay 
 compensation under the Act, you must file with me an answer, stating 
 your name and address and the name and address of your solicitor (if any), 
 and stating that you disclaim any interest in the subject-matter of the 
 arbitration, or stating in what respect the applicant's particulars are 
 inaccurate or incomplete, or stating concisely any fact or document which 
 you desire to bring to the notice of the judge [or arbitrator], or on which 
 you intend to rely, or the grounds on and extent to which you deny 
 liability to pay compensation. 
 
 Such answer, together with a copy thereof for the judge [or arbitrator], 
 and a copy for the applicant and for each of the other respondents, must be 
 filed with me ten clear days at least before the day of 
 
800 Appendix 
 
 If no answer is filed, and subject to such answer, if any, the applicant's 
 particulars and your liability to pay compensation will be taken to be 
 admitted. 
 
 Dated this day of 
 
 To 
 Of 
 
 Begistrar. 
 
 POBM 23. 
 
 Notice by Respondent to Third Parties. 
 
 INot to be printed, hut to be used as a Precedent.} 
 
 [Heading as in Bequest for Arbitration.'] 
 
 To Mr. , of {address and description) 
 
 Take Notice — That A.B. of, etc., , has filed a request for 
 
 arbitration (a copy whereof is hereto annexed) as to the amount of com. 
 pensation payable by the respondents, O.D. & Co., Limited, to the 
 
 said A.B. in respect of personal injury caused to the said A.B. 
 
 by accident arising out of and in the course of his employment. 
 
 \0r That E.F. of has filed a request for arbitration (a 
 
 copy whereof is hereto annexed) with respect to the compensation payable 
 to the dependants of A.B. deceased, in respect of the injury 
 
 caused to the said dependants by the death of the said A.B. 
 which resulted from injury caused to the said A.B. by accident 
 
 arising out of and in the course of his employment.] 
 
 \pr as the case may be ; see forms of request for a/rbitration.'] 
 
 The respondents, O.D. & Co., Limited, claim to be indemnified 
 
 by you against their liability to pay such compensation, on the ground that 
 at the time of the injury in respect of which compensation is claimed the 
 said A.B. was not immediately employed by the said CD. & Co., 
 
 Limited, but was employed by you in the execution of work under- 
 
 taken by the said CD. & Co., Limited, in respect of which the said 
 
 O.D. & Co., Limited, had contracted with you for the execution 
 
 thereof by or under you. 
 
 [Or on the ground that the injury for which compensation is claimed 
 was caused under circumstances creating a legal liability on your part [add, 
 if so, as the persons who have given security in respect of the liability of 
 the owners of the ship " "] to pay damages in respect thereof]. 
 
 [or as the case may be.} 
 
WorJcmen's Compensation Bules, 1907 801 
 
 [O, in case ofindtistrial disease, The respondents CD. & Co., Limited, 
 claim to be entitled to contribution from you in respect 
 of the compensation claimed from them, on the ground that the disease 
 mentioned in the applicant's particulars was of such a nature as to be con- 
 tracted by a gradujal process, and that the said A.B. was employed 
 by you during the 12 months previous to the date of disablement or 
 suspension in the employment to the nature of which the disease was due.] 
 
 And take notice, that if you wish to dispute the applicant's claim as 
 against the respondents, CD. & Co., Limited, or your liability to 
 
 the said respondents, you must appear before the judge {or arbitrator] at 
 the time and place mentioned in the notice a copy of which is hereunto 
 annexed. 
 
 In default of your so appearing you will be deemed to admit the validity 
 of any award niade in the said arbitration as to any matter which the judge 
 [or arbitrator] has jurisdiction to decide in such arbitration as between the 
 applicant and the respondents, CD. &, Co., Limited, whether 
 
 such award is made by consent or otherwise, and your own liability to 
 indemnify the said CD. & Co., Limited, [or to contribute as 
 
 above mentioned]. 
 
 Dated this day of 
 
 (Signed) CD. & Co., Limited, 
 
 To By 
 
 Secretary. 
 
 of [Or 
 
 Solicitors for the Eespondents, 
 CD. & Co., Limited.] 
 
 POBM 24. 
 Award. 
 
 [Note. — These forms are intended for use in ordinary cases only. The 
 award in any special case must be settled under Rule 28, in accordance 
 with the directions given by the Judge or Arbitrator.] 
 
 (i) In Case of Application by Workman. 
 
 [Heading as in Bequest for Arbitration.] 
 
 Having duly considered the matters submitted to me, I do hereby make 
 my award as follows : — 
 
 [Here insert any introductory recitals of findings on which the award is 
 made which the jvdge or arbitrator may direct.] 
 
802 
 
 Appendix 
 
 (■) First Satur- 
 day or other 
 usual pay day 
 after date of 
 award. 
 
 (») Or other 
 usual pay day. 
 
 1. I order that the respondents, O.D. & Co., Limited, do pay to 
 the applicant, A.B., the weekly sum of as compensation 
 for personal injury caused to the said A.B. on the day of 
 
 , by accident arising out of and in the course of his employment 
 as a workman employed by the said respondents, such weekly payment 
 to commence as from the day of , and to continue 
 
 during the total or partial incapacity of the said A.B. for work, or 
 
 until the same shall be ended, diminished, increased, or redeemed in 
 accordance with the provisions of the above-mentioned Act. 
 
 2. And I order that the said CD. & Co. do forthwith pay to the 
 said A.B. the sum of £ being the amount of such weekly 
 payments calculated from the day of until the day of ('). 
 and do thereafter pay the said sum of to the said A.B. 
 
 on Saturday {') in every Week. 
 
 i. And I order that the said CD. & Co. do pay to the registrar 
 
 of this Court, for the use of the applicant, his costs of and incident to this 
 arbitration, such costs, in default of agreement between the parties as to 
 the amount thereof, to be taxed by the registrar under column . of 
 
 the scales of costs in use in the County Courts, and to be paid by the said 
 CD. & Co. to the registrar within 14 days from the date of the 
 
 certificate of the result of such taxation. 
 
 Dated this 
 
 day of 
 
 Judge [or Arbitrator], 
 
 (ii) In case of Application by Dependants. 
 
 [Heading as in Bequest fen- Arbitration.'] 
 
 Having duly considered the matter submitted to me, I do hereby make 
 my award as follows : — 
 
 [Sere insert any introductory recitals of findings on which the award is 
 made which the judge or arbitrator may direct.] 
 
 1. I order that the respondents, CD. & Co., Limited, do pay the sum 
 of £ to the dependants of A.B., late of , deceased, 
 
 as compensation for the injury resulting to such dependants from the 
 death of the said A.B. , which took place on the day of 
 
 from injury caused to the said A.B. on the day of 
 
 by accident arising out of and in the course of his employment as a 
 workman employed by the said respondents. 
 
Workmen's Goriipensation Rules, 1907 803 
 
 2. And I declare that the persons hereinafter named are entitled to 
 share in such compensation as dependants of the said A.B. , that is 
 
 to say, J.B., the widow of the said A.B., and (') (>) Name the 
 
 other persona. 
 
 3. [Add, if SO found.] And I declare that the respondent G.H. , 
 the of the said A.B. , is not entitled to share in such 
 compensation as a dependant of the said A.B. 
 
 4. And I order that the said sum of S, be apportioned between 
 the said J.B. and (') 
 
 in the proportions following, that is to say :— 
 
 I apportion the sum of £ to or for the benefit of the said 
 J-B-, and the sum of £ to or for the benefit of the ,,, „ ., ., 
 
 said (2) O Specify the 
 
 ooixix ^ y persons 
 
 entitled and the 
 Bums apportioned 
 to them. 
 
 5. And I order that the said CD. & Co., Limited, do pay the said 
 sum of £, to the registrar of this Court within 14 days from the 
 date of this award. 
 
 6. And I order that on payment to the registrar of the said sum 
 of & , the registrar do forthwith pay to the said J.B. the sum 
 of S, hereby apportioned to her, [or the sum of & out of the 
 sum of £ hereby apportioned to her, and that the balance of the 
 last-mentioned sum (less the fee for the investment thereof) be invested 
 by the registrar in his name in the Post Office Savings Bank for the benefit 
 of the said J.B,, and that out of the sum so invested and the accruing 
 interest thereof the registrar do from time to time until further order pay 
 to the said J.B. the weekly [or fortnightly] sum of £ , the 
 first payment to be made on the day of ]. 
 
 7. And I order that on payment to the registrar of the said sum of 
 Si the sums of & and £ hereby apportioned to or 
 for the benefit of the said 
 
 respectively (less the fees for the investment thereof) be invested by the 
 registrar in his name in the Post Office Savings Bank for the benefit of 
 the said and respectively, and that 
 
 interest arising from such investments be from time to time until further 
 order paid to the said J.B. to be by her applied for the maintenance, 
 
 education, or benefit of the said and 
 
 respectively. 
 
 , 8. And I order that the said J.B. and the said 
 
 or any of them be at liberty to apply to the judge froin time to time as 
 they may be advised for any further or other order as to the application 
 of any of the said sums so ordered to be invested and the accruing interest 
 thereof. 
 
 r 9. And I order that the said CD. & Co., Limited, , do pay to the 
 
 registrar of this Court, for the use of the applicants, their costs of and 
 incident to this arbitration, such costs, in default of agreement between 
 the parties as to the amount thereof, -to -be taxed by the registrar under 
 
804 Appendix 
 
 column of the scales of costs in use in the County Courts, and to be 
 
 paid by the said CD. & Co., Limited, to the registrar within 
 
 14 days from the date of the certificate of the result of such taxation. 
 
 [Add directions {if amy gvoen), as to costs occasioned by claim of person 
 cUmnrng as a dependant whose claim is disallowed.] 
 
 Dated this day 
 
 Judge [ or Arbitrator]. 
 
 (iii) In case of Application by Person to whom expenses of Medical 
 Attendance or Burial are due. 
 
 [Heading as m Bequest for Arbi^ation.'] 
 
 Having duly considered the matters submitted to me, I do hereby make 
 my award as follows : — 
 
 [Leave space for any inirodtictory recitals of finding on which the award 
 is made which, the judge or arbitrator may direct.'] 
 
 1. I order that the 'respondents, CD. & Co., Limited, do pay 
 the sum of £ for or towards the expenses of medical attendance on and 
 the burial of A.B., late of , deceased, who died on 
 the day of from injury caused on the day of 
 
 by accident arising out of and in the course of the employ- 
 ment of the said A.B. as a workman employed by the said CD. 
 &. Co., Limited. 
 
 2. And I declare .that the persons hereinafter named are entitled to 
 share in such compensation, that is to say : 
 
 The applicant, E.F., in respect of charges amounting to £ 
 
 due to [or payable by] him for medical attendance on the said A.B. 
 and the respondent, G.H. , in respect of charges amounting 
 
 to & due to him for the burial of the said A.B. 
 
 3. And I order that the respondents, CD. & Co., Limited, do 
 pay the said sum of £ to the registrar of this Court within 14 days 
 from the date of this award, and that the said sum of £ be apportioned 
 between and paid to the said E.P. and G.H. in proportion to the amounts 
 due to them respectively as aforesaid. 
 
 4. And I order that the said CD. & Co., Limited, do pay to 
 the registrar of this Court for the use of the appUoaut, B.F., and the 
 respondent, G.H., their respective costs of and incident to this arbitration, 
 such costs, in default of agreement between the parties as to the amount 
 thereof, to be taxed by the registrar under column of the scales of 
 costs in use in the County Courts, and to be paid by the said CD. & Co., 
 Limited, to the registrar within 14 days from the date of the 
 certificate of the result of such taxations. 
 
 Dated this day of 
 
 Judge [or Arbitrator]. 
 
 [Note. — The above forms will serve as guides for framing awards in 
 other oases of arbitration.] 
 
Workmen's Compensation Rules, 1907 805 
 
 FOHM 25. 
 Notice of I)ay upon which Special Case will be heard. 
 In the County Court of holden at 
 
 IBeading as in Special Case.'] 
 
 Take Notice that the judge of this Court will hear the special case 
 
 stated in the above-named matter at a Court to be holden at on 
 
 the day of at the hour of in the 
 
 noon: and that if you do not attend in person or by your 
 
 solicitor at the place and time above mentioned, such order will be made 
 
 and proceedings taken as the judge may think just. 
 
 You may obtain a copy of the case upon application at my office and 
 upon prepayment of the costs of such copy. 
 
 Dated this day of 
 
 Begistrar. 
 To [The Applicant and Bespondents.J 
 
 Form a6. 
 AppUcation for Order for DetenUon of Ship. 
 INot to be printed, hut to be used as a Precedent.] 
 In the County Court of holden at 
 
 The Workmen's Compensation Act, 1906. Section 11. 
 The ship " " 
 
 Application is hereby made on behalf of 
 
 o£ 
 
 who alleges that the owners of the ship " » 
 
 which has been found in the port [or river] of 
 
 [or within three miles of the coast of England], are liable as 
 such owners to pay compensation under the Workmen's Compensation 
 Act, 1906, in respect of personal injury by accident arising out of and in 
 the course of his employment caused to of on 
 
 the day of in the port [or harbour] of ' 
 
 and who claims compensation in respect of such injury, and alleges that 
 none of the owners of the said ship reside in the United Kingdom, 
 for an order directed to an officer of Customs or other officer named by 
 the judge, requiring him to detain the said 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, or until 
 the said ship shall be otherwise released by due course of law. 
 
 The grounds on which this application is made are set forth in the 
 affidavit of filed herewith [or ■will be given in evidence 
 
 on the hearing of the application]. 
 
 Dated this day of 
 
 (Signed) 
 [Name and Address of Applicant or Applicant's SoUdtor.] 
 
806 Appendix 
 
 Poem 27. 
 Undertaking as to Damages, 
 INot to be printed, but to be used as a Precedent.} 
 In the County Court of holden at 
 
 The Workmen's Compensation Act, 1906. Section 11. 
 The Ship " 
 I the undersigned , of , 
 
 hereby undertake to abide by an order which may hereafter be made as to 
 damages, in case any person afEeoted by the order to be made on my 
 application for the detention of the Ship " " shall 
 
 sustain any damages by reason of such order which I ought to pay. 
 Dated this day of 
 
 (Signed) 
 ^Signature and Address of Applicant.] 
 
 [To be alteredas reqw/red, if the undertaking is given by any person other 
 than the applicant.] 
 
 POBM 28. 
 Order for Detention of Ship. 
 
 In the County Court of holden at 
 
 The Workmen's Compensation Act,- 1906. 
 
 The Ship " 
 
 Whereas it is alleged that the owners of the ship " "are liable 
 
 as such owners to pay compensation in respect of personal injury by 
 
 accident arising out of and in the course of his employment caused to 
 
 of in the port [or harbour] of : 
 
 And that the said shij hag been found in the port [or river] of 
 [or within three miles of the coast of England] : 
 
 And whereas it has been shown to me, on the application of 
 
 of, who claims compensation in respect of such 
 
 injury, that the owners of the said ship are probably liable as such to pay 
 such compensation, and that none of the owners reside in the United 
 Kingdom : 
 
 [And whereas the said has filed an 
 
 undertaking to abide by an order which may hereafter be made as to 
 damages, in case any person afiected by this order shall sustain any 
 damages by reason of this order which the said ought to pay :] 
 
 Now I do hereby issue this order directed to you, the Chief Officer of 
 Customs at [or other officer named by the judge], 
 
 requiruig you to detain the said ship until such time as the owners, agent, 
 master, or consignee thereof have paid compensation in respect of the said 
 injury, or have given seoujity in the sum of £ , to be approved 
 
 by the judg;e, 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, or untU the said ship shall be otherwise released 
 by due course of law. 
 
 Dated this day of 
 
 Judge. 
 To the Chief Officer of Customs at 
 [or other officer named by the judge.] 
 
Workmen's Compensation Rules, 1907 807 
 
 . FOBM 29. 
 Bond by way of Securiiy, 
 {Not to be printed, but to be used_as a Precedmt.} 
 In the County Court of holden at 
 
 The Workmen's Compensation Act, 1906. 
 The Ship " " 
 
 Whereas it is alleged that the owners of the ship " " are liable 
 
 as such owners to pay compensation in reSpeot of personal injury by accident 
 arising out of and in the course of his employment caused to of 
 
 in the port [or harbour] of : 
 
 And whereas the judge of this Court has issued an order directed to 
 the Chief Officer of Customs at [or other officer named by the 
 
 Judge"], requiring him to detain the said ship until such time as the 
 owners, agent, master, or consignee thereof have paid compensation in 
 respect of the said injiuy, or have given security in the sum of & , 
 
 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 com- 
 pensation add costs as mayb'e awarded ithereon, or xmtil ithe said ship 
 shall be otherwise released by due course of law : ■- 
 
 .Now, therefore, we [state na/mes, addresses, and description of sureties} 
 jointly and severally submit ourselves to the jurisdiction of this Court, or 
 of any other competent Court in England or Ireland in which any pro- 
 ceedings may be instituted in respect of the said injury, and consent that 
 if the owners, agent, master, or consignee of the said ship shall not pay 
 all such compensation and costs as may be awarded thereon execution 
 may issue forthwith against us, our heirs, executors, and administrators, 
 goods and chattels, for a sum not exceeding pounds. 
 
 ' [Signatures of Sureties.} 
 This bail bond was signed by the said 
 and 
 the sureties, the day of 
 
 19 . 
 
 Before me, 
 
 Eegistrar. 
 [or Clerk' to the Registrar nominated 
 to take affidavits.] 
 
 POBM 30. 
 
 Order of Release. 
 
 In the County Court of holden at 
 
 The Workmen's Compensation Act, 1906. 
 The Ship " 
 You are hereby authorized and directed to release the ship " " 
 
 now under detention by virtue of an order made on the day 
 
 of , upon the payment of all costs, charges and expenses 
 
 attending the custody thereof. 
 Bated this day of 
 
 Judge. 
 To the Chief Officer of Customs at 
 [or other officer named in the order for detention.} 
 
808 Appendix 
 
 FOBM 30a, 
 
 Solicitor's Undertaking to give Security. 
 
 [Not to be printed, but to be used as a Precedent.'] 
 
 In the County Court of tolden at 
 
 The Workmen's Compensation Act, X906. 
 
 The Ship " 
 
 Whereas it is alleged that the owners of the ship " "are 
 
 liable as such owners to pay compensation in respect of personal injury by 
 accident arising out of and in the course of his employment caused to 
 of in the port [or harbour] of : 
 
 Now, therefore, I, L.M. , of (address) , solicitor for 
 
 the owners [agent, master or oojasignee] of the said ship, hereby undertake 
 within days from the date hereof to put in or give security in the 
 
 sum of £ , 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. 
 
 Dated this day of . 
 
 (Signed) L.M. 
 
 FOBM 31. 
 Application for Order for Detention of Ship by Employer 
 
 [Not to be printed, but to be used as a Precedent] 
 
 In the County Court of holden at 
 
 The Shipowners' Negligence (Remedies) Act, 1905. 
 
 The Workmen's Compensation Act, 1906. 
 
 The Ship " " 
 
 Application is hereby made on behalf of 
 of 
 who alleges : — 
 
 1. That on the day of personal injury by accident 
 arising out of and in the course of his employment was caused to 
 
 of in the port [or harbour] of : and 
 
 2. That the applicant, as the employer of the said has paid 
 compensation [or has had a claim for compensation made on him] in respect 
 of such injury under the Workmen's Compensation Act, 1905 : and 
 
 3. That the applicant is [or will become] entitled to be indemnified 
 under that Act by the owners of the ship " ' "on the ground that 
 the said injury was caused by the said ship [or sustained on in or about 
 the said ship], in consequence of the wrongful aot.neglect, or default of the 
 owjners of the said ship, or the masters or officers or crew thereof, or of 
 some other person in the employment of the owners of the said ship, or of 
 some defect in the said ship or its apparel or equipment : and 
 
 i. That the said ship has been found in the port [or river] of 
 [or within three miles of the coast of England] : and 
 
Workmen's Compensation Bides, 1907 809 
 
 5. That none of the owners of the said ship reside in the United Kingdom : 
 
 for an order directed to an officer of Customs or other officer named hy the 
 judge, requiring him to detain the said ship until such time as the owners, 
 agent, master, or consignee thereof have indemnified the applicant or paid 
 compensation in respect of the said injury, or have given security, to be 
 approved by the judge, to abide the event of any proceedings that may be 
 instituted in respect of the said injury or to recover such indemnity, and to 
 pay such compensation, indemnity, and costs as may be awarded thereon, 
 or until the said ship shaU be otherwise released by due course of law. 
 
 The grounds on which this application is made are set forth in the 
 affidavit of filed herewith \or wiU be given in evidence on the 
 
 hearing of the application]. 
 
 Dated this day of , 
 
 (Signed) 
 [Jtone aTid Address of AppUccmt or Applicant's Solicitor.'] 
 
 Form 32, 
 
 Order for Detention of Ship on Application of Employer 
 clavmmg Indemmty. 
 
 In the Ooimty Court of holden at 
 
 The Shipowners' Negligence (Remedies) Act, 1905. 
 The Workmen's Compensation Act, 1906. 
 The Ship " 
 Whereas it is alleged by of 
 
 1. That on the day of personal injury by accident 
 arising out of and in the course of his employment was caused to 
 
 of in the port lor harbour] of : and 
 
 2. That the said as the employer of the said has 
 paid compensation lor has had a claim for compensation made on him] in 
 respect of such injury under the Workmen's Compensation Act, 1906 : 
 and 
 
 3 That the said is Icn- wiU become] entitled to be indemnified 
 
 under that Act by the ovmers of the ship " _ ," on the ground that 
 
 the said injury was caused by the said ship lor sustained on in or about the 
 said ship], in consequence of the wrongful act, neglect, or default of the 
 owners of the said sMp, or the master or officers or crew_ thereof, or of some 
 other person in the employment of the owners of the said ship, or of some 
 defect in the said ship or its apparel or equipment : and 
 
 i. That the said ship has been found in the port [or river] of 
 lor vrithin three miles of the coast of England] : 
 
 And whereas it has been shown to me, on the application of the said 
 that the applicant probably is lor wiU become] entitled to be 
 indemnified under the said Act, and that none of the owners of the said 
 ship reside in the United Kingdom: 
 
 [And whereas the said , ^^ , has filed an 
 
 undertaking to abide by any order which may hereafter be made as to 
 
 damages, in case any person afEeoted by this order shall sustain any d 
 
 by reason of this order which the said ought to pay] : 
 
 B.B.Ij. ^ ^ 
 
810 Appendix 
 
 Now I do hereby issue this order directed to you, the Chief Officer of 
 Customs at [or other officer named by the judge"], 
 
 requiring you to detain the said ship until such time as the owners, agent, 
 master, or consignee thereof have indemnified the said or paid 
 
 compensation in respect of the said injury, or have given security in the 
 sum of £ , to be approved by the judge, to abide the event of any 
 
 proceedings that may be instituted in respect of the said injury, or to 
 recover such indenmity, and to pay such compensation, indemnity, and 
 costs as may be awarded thereon, or until the said ship shall be otherwise 
 released by due course of law. 
 
 Dated this day of 
 
 Judge. 
 
 To the Chief Officer of Customs at 
 [or other officer na/med by thejitdge}. 
 
 FOBM 33. 
 
 Bail Bond by way of Security where Order of Detention made on 
 
 AppUcation of Employer claimmg Indemnity. 
 
 [Not to be printed, but to he used as a Precedent.'] 
 
 In the County Court of holden at 
 
 The Shipowners' Negligence (Remedies) Act, 1905. 
 The Workmen's Compensation Act, 1906. 
 The Ship " 
 Whereas it is alleged : — 
 
 1. That on the day of personal injury by accident 
 arising out of and in the course of his employment was caused to 
 
 of in the port [or harbour] of : 
 
 and 
 
 2. That of as the employer of the 
 said , has paid compensation [or has had a claim for 
 compensation made on him] in respect of the said injury under the Work- 
 men's Compensation Act, 1906 : and 
 
 3. That the said is [or will become] entitled to be 
 indemnified under that Act by the owners of the ship " ," 
 on the ground that the said injury was caused by the said ship [or sus- 
 tained on in or about the said ship] in consequence of the wrongful act 
 neglect, or default of the owners of the said ship, or the master or officers 
 or crew thereof, or of some other person in the employment of the owners 
 of the said ship, or of some defect in the said ship or its apparel or 
 equipment : 
 
 And whereas the judge of this Court has issued an order directed to the 
 Chief Officer of Customs at [or other offi/c&r named by the judge], 
 
 requiring him to detain the said ship until such time as the owners, agent, 
 master, or consignee thereof have indemnified the said 
 or paid compensation in respect of the said injury, or have given security 
 in the sum of £ , to be approved by the judge, to abide the event 
 
 of any proceedings that maybe instituted in respect of the said injury, or to 
 recover such indemnity, and to pay such compensation, indemnity, and 
 costs as may be awarded thereon, or until the said ship shall be otherwise 
 released by due course of law : 
 
Workmen's Compensation Rules, 1907 811 
 
 Now, therefore, we [state names, addresses, and description of sureties} 
 jointly and severally submit ourselves to the jurisdiction of this Court, or 
 of any other competent Court in England or Ireland in which any pro- 
 ceedings may be instituted in respect of the said injury, or to recover such 
 indemnity ,_ and consent that if the owners, agent, master, or consignee of 
 the said ship shall not pay all such compensation, indemnity, and costs as 
 may be awarded thereon execution, may issue forthwith against us, our 
 heirs, executors, and administrators, goods and chattels, for a sum not 
 exceeding pounds. 
 
 iSignatwres of Sureties.'] 
 This bail bond was signed by the said 
 and 
 the sureties, the day of , 
 
 19 . 
 
 Before me, 
 
 Begistrar. 
 \pr Clerk to the Eegistrar nominated 
 to take affidavits.] 
 
 Form 34. 
 AppUcation for Appointment of new Arbitrator, Schedule II., Pa/ragraph 8. 
 [Not to he printed, but to be used as a Precedent.] 
 In the County Court of holden at 
 
 In the matter of the Workmen's Compensation Act, 1906. 
 In the matter of an Arbitration between 
 
 A.B. 
 
 of (address) 
 
 (description) Applicant 
 
 and 
 CD. & Co., Limited, 
 of (ad&ress) 
 (description) Eespondents. 
 
 Application is hereby made to the judge on behalf of the above-named 
 
 to appoint a new arbitrator in the above-mentioned 
 
 matter in the place of Mr. , the arbitrator appointed therein, 
 
 by reason of the death [or refusal [or inability] to act] of the said 
 
 Mr. 
 
 And the applicant hereby requests that a time and place may be fixed 
 for the hearing of the application. 
 
 Dated this day of 
 
 Signed 
 
 Applicant. 
 [or 
 
 Applicant's Solicitor.] 
 
812 Appendix 
 
 FoBM 35. 
 Summons on Application for Appointment of new Arbitrator. 
 [Title as in Application.^ 
 You are hereby summoned to attend before the judge in chambers at 
 on the day of ' at the 
 
 hour of in the noon, on the hearing of an application 
 
 on the part of for the appointment by the judge of a 
 
 new arbitrator in the above-mentioned matter in the place of Mr. 
 
 the arbitrator appointed therein, by reason of the death [or refusal 
 [or inability] to act] of the said Mr. 
 
 And take notice, that in default of your attendance at the time and 
 place above-mentioned, the judge will, on proof of the service of this 
 summons, proceed to hear and dispose of the said application. 
 Dated this day of 
 
 To 
 
 Begistrar. 
 and to his [or their] 
 Solicitor, 
 
 FOKM 36. 
 Form of Memarwndvm, vmder Paragraph 9 of Schedule II. 
 [Not to he printed, hut to he used as a Precedent.'] 
 To the Begistrar of the County Court of holden at . 
 
 In the matter of the Workmen's Compensation Act, 1906, 
 
 and 
 In the matter of an arbitration between 
 A.B. of, etc., Applicant, 
 
 and 
 CD. & Co., Limited, 
 
 of, etc. Bespondents, 
 
 [or, where the matter has been decided by agreement without arbitration, 
 In the matter of an Agreement between 
 A.B. of, etc., 
 
 and 
 CD. & Co., Limited, 
 
 of, etc., ,] 
 
 Be it remembered, that on the day of personal 
 
 injury was caused to the above-named A.B, by accident arising 
 
 out of and in the course of his employment : 
 
 And that on the day of the following agreement was 
 
 come to by and between the said A.B. and the said O.D. & Co., 
 
 Limited, that is to say : 
 
 [or And that on the day of the following decision was given 
 
 by a committee representative of the said CD. & Co., Limited, 
 and their workmen, having power to settle matters under the above- 
 mentioned Act in the case of the said CD. & Co., Limited, and 
 their workmen ; that is to say :] 
 
 [or And that on the day of the following award was 
 
 made and given by me, the undersigned , being an arbitrator 
 
 agreed on by the said A.B. and the said CD. & Co., Limited, 
 
 that is to say :] 
 
 [Here set out copy of agreement, decision, or award.} 
 [or, where death resulted from the accident, 
 
Workmen's Compensation Rules, 1907 813 
 
 Be it remembered, that on the day of personal 
 
 injury was caused to A.B. late of deceased, by accident 
 
 arising out of and in the course of his employment, and that on the 
 
 day of the said A.B. died as the result of such injury : 
 
 And that on the day of the following agreement was 
 
 come to by and between C.B. G.B. etc., the 
 
 dependants of the said A.B. within the meaning of the above- 
 
 mentioned Act, and the said CD. & Oo., Limited, that is to say : 
 
 [or And that on the day of the following decision was 
 
 given by a committee representative of the said O.D. & Co., Limited, 
 
 and their workmen, having power to settle matters under the above- 
 mentioned Act in the case of the said O.D, & Co., Limited, and 
 their workmen ; that is to say : 
 
 \pr And that on the day of the following award was 
 
 made and given by me, the undersigned , being an arbitrator 
 
 agreed on by C.B. G.B. , etc., the dependants of 
 
 the said A.B. within the meaning of the above-mentioned Act, and 
 
 the said CD, & Co., Limited, ; that is to say :] 
 
 [_Mere set out copy of agreement, decision, or award.] 
 
 A copy of the report of Mr. , a medical referee appointed 
 
 to report in the above-mentioned matter, is hereunto annexed [add, if so, 
 The said Mr. attended the arbitration on the 
 
 day of ] 
 
 You are hereby rec[uested to record this memorandum, pursuant to 
 paragraph 9 of the second schedule to the above-mentioned Act, 
 
 Dated this day of 
 
 [To be signed — 
 
 In the case of an agreement, by the pa/rties or some or one of them, or by 
 their or his solicitor cm their or his behalf: 
 
 In the case of a decision by a committee, by the chairman and secretary 
 on behalf of the committee : 
 
 In the case of an award, by the arbitrator.'] 
 
 Note. — This farm to be adapted to the circumstances of the case and the 
 matter decided. 
 
 FoEM 37. 
 Notice of Memoramdv/m having been received. 
 
 In the County Court of holden at 
 
 [Heading as in Memorandum.] 
 
 Take Notice, that a memorandum, copy of which is hereto annexed 
 has been sent to me for registration. 
 
 Such memorandum appears to aflect you. 
 
 I have therefore to request you to inform me within 7 days from this 
 date whether you admit the genuineness of th'e memorandum, or whether 
 you dispute it, and if so, in what particulars, or object to its being recorded, 
 and if so, on what grounds. 
 
 If you do not inform me in due course that you dispute the genuineness 
 of the memorandum or object to its being recorded, it may be recorded 
 without further ing^uiry, and will be enforceable accordingly. 
 
814 Appendix 
 
 If you dispute its genuineness or object to its being recorded, it will 
 not be recorded, except with your consent in writing, or by order of the 
 judge of this Oourt. 
 
 Dated this day of 
 
 Eegistrar. 
 To 
 
 Poem 38, 
 
 Notice disputing Memorandum, or objecting to its being recorded. 
 
 [Not to be printed, but to be used as a Precedent.] 
 
 In the County Oourt of holden at 
 
 [Heading as in Memorandum.} 
 
 Take Notice, that the undersigned CD. & Co., of etc., 
 
 dispute the genuineness of the memorandum sent to you for registration in 
 the above-mentioned matter in the following particulars : — 
 
 [here state pa/rticulars.'] 
 
 [or Take Notice, that the undersigned CD. & Co., of etc., 
 
 object to the memorandum sent to you for registration in the above- 
 mentioned matter being recorded, on the following grounds : — 
 
 [here state grounds — see pa/rticulairVy Schedule 2, par. 9, proviso (6).] 
 
 Dated this day of 
 
 CD. & Co., Limited, 
 
 by Secretary. 
 
 [or 
 
 Solicitors for CD. & Co., Limited.] 
 To 
 The Begistrar. 
 
 FOEM 39. 
 
 Notice that Memorandum is disputed, or of Objection to its being recorded, 
 
 IHeading as i/n Memorandum.'] 
 
 Take Notice, that the genuineness of the memorandum in the above- 
 mentioned matter left with [or sent to] me for registration is disputed by 
 of , a party affected by such memorandum, in the following 
 
 particulars : 
 
 [here state particulars of dispute.] 
 [or that of , a party interested in the memorandum 
 
 in the above-mentioned matter left with [or sent to] me for registration 
 objects to the same being recorded, on the following grounds : 
 
 [here state grounds.] ] 
 
 The memorandum wUl therefore not be recorded, except with the 
 consent in writing of the said , or by order of the judge of this 
 
 Court. 
 
 Dated this day of 
 
 Begistrar. 
 To 
 
Workmen's Compensation Bules, 1907 815 
 
 Poem 40. 
 
 Notice of Apj^UcaUon for BegistraHon of MemoranMm or for BecUficaUon 
 
 of Begister. 
 
 INot to be printed, but to be used as a Precedent] 
 
 In the County Court of holden at 
 
 [Seading as in Memorandum.'] 
 
 Takb Notice, that I intend to apply to the judge at 
 
 °^ . , v.*^®x,. ^*y °* ' a* *li8 ^°^^ °^ 
 
 o clock in the noon [in case of notice by solicitor, on behalf 
 
 J t .-^ . °* ], foran 
 
 oraer for the registration of the memorandum sent to the registrar in the 
 above-mentioned matter \pr for an order for the rectification of the 
 memorandum recorded in the above-mentioned matter] by (state particulars 
 of rectification allied for), 
 
 and for consequential directions, and for costs. 
 Dated this day of 
 
 Applicant. 
 [or Applicant's Solicitor.] 
 To the Eegistrar of the Court 
 and to 
 
 and to Messrs. 
 (his [or their] solicitors). 
 
 FOBM 41. 
 
 Notice to Parties where Begistrar refers the Question of recording a Memo- 
 randum of an Agreement to the Judge under Schedule II., Paragraph 9, 
 Proviso (d). 
 
 In the County Court of holden at 
 
 [Heading as in Memorandum.] 
 
 Take Notice, that I have refused to record the memorandum sent to 
 me in this matter for registration, and have referred the matter to the 
 judge, pursuant to proviso (d) to paragraph 9 of the second schedule to the 
 Act, it appearing to me that the said memorandum ought not to be 
 registered by reason of — 
 
 (a) the inadequacy of the lump sum agreed to be paid in redemption of 
 the weekly payment referred to in the memorandum ; or 
 
 {b) the inadequacy of the amount of compensation agreed to be paid 
 to , a person under legal disability ; or 
 
 (c) the inadequacy of the amount of compensation agreed to be paid 
 
 to and , dependants ; or 
 
 (d) the agreement having been obtained by fraud [or undue influence 
 
 or improper means]. 
 
816 Appendix 
 
 And F0BTHEE TAKE NOTICE, that by order of the judge you are hereby 
 summoned to attend before the judge at a Court to be holden at 
 on the day of at the hour of in the 
 
 noon, when the matter will be inquired into by the judge ; 
 
 And that if you do not attend either iu person or by yoiur solicitor on 
 the day and at the hour above mentioned such order will be made and pro- 
 ceedings taken as the judge may think just and expedient. 
 
 Dated this day of 
 
 To (all parties concerned). 
 
 FOBH ^2. 
 
 AppUcation for Removal of Record of Memorandum of Agreement from 
 Registrar under Schedule II., Paragraph 9, Proviso (e). 
 
 In the County Court of holden at 
 
 {Heading as in Memorandum.'] 
 
 Take Notice, that I intend to apply to the judge at 
 on the day of at the hour of 
 
 in the noon, for an order for the removal from 
 
 the register of the record of the memorandum of the agreement in the 
 above-mentioned matter which was recorded on the day of , 
 
 pursuant to proviso (e) to paragraph 9 of the second schedule to the above- 
 mentioned Act, on the ground that the said agreement was obtained by 
 fraud [or undue influence or improper means], 
 and for consec[uential directions, and for costs. 
 
 Dated this day of 
 
 Applicant. 
 [or Applicant's Solicitor.] 
 To the Begistrar of the Court 
 and to 
 Messrs. 
 and his [or their] Solicitor. 
 
 FoEM 43. 
 
 Notice to Pa/rties where Judge directs Inquiry as to Removal of Record of 
 Memorandum of Agreement from Register under Schedule II., Pa/ra- 
 graph 9, Proviso (e). 
 
 In the County Court of holden at 
 
 [Headmg as in Memorandum.'] 
 
 Whereas it has been made to appear to the judge that an inquiry 
 should be held as to the removal from the register of the record of the 
 memorandum of the agreement in the above-mentioned matter which was 
 recorded on the day of , pursuant to proviso (c) 
 
 to paragraph 9 of the second schedule to the above-mentioned Act, on the 
 ground that the said agreement was obtained by fraud [or undue influence 
 or improper means] : 
 
Workmen's Compensation Bides, 1907 8l7 
 
 Take Notice, that you are hereby summoned to attend before the judge 
 at a Court to be holdeu at on the day 
 
 of at the hour of in the noon, when the 
 
 matter will be inquired into by the judge ; 
 
 And that if you do not attend either in person or by your solicitor on 
 the day and at the hour above mentioned such order will be made amd 
 proceedings taken as the judge may think just and expedient. 
 
 Dated this day of 
 
 Eegistrar. 
 To {all parties concerned). 
 
 POBM 44. 
 
 Fcyrm of Certificate under Section 1, Sub-section i. 
 
 In the County Court of holden at 
 
 No. of plaint. 
 Between 
 A.B., 
 
 of {address) 
 
 {description) Plaintiff, 
 
 and 
 CD. & Co., Limited, 
 of {address) 
 
 {description) Defendants. 
 
 And in the matter of the Workmen's Compensa,tion Act, 1906. 
 
 I hereby certify that on the day of the above-named 
 
 plaintiff commenced the above-named action against the above-named 
 defendants claiming 
 
 [here state claim of plaintiff in action."] 
 
 And that on the trial of the said action on the day of 
 
 it was determined that the injury in respect of which the plaintiff claimed 
 damages in the said action was one for which the defendants were not 
 liable in the said action, but that such defendants would have been liable 
 to pay compensation in respect of such injury under the above-mentioned 
 Act; 
 
 And that thereupon the said action was dismissed, but the Court, on 
 the request of the plaintiff, proceeded to assess the compensation which 
 the defendants would have been liable to pay under the said Act. 
 
 And that the Court assessed such compensation at the sum of £ 
 and directed {state directions given as to payment of compensation, and 
 directions, if any given, as to costs, and as to the deduction from the compen- 
 sation of any costs which in the judgment of the Court were caused by the 
 plm/ntiff bringing the action instead of proceeding under the Act). 
 
 Dated this day of 
 
 Eegistrar. 
 
818 Append'i 
 
 FOBH 4S. 
 
 AppUcaUon for Summons of Medical Beferee as Assessor. 
 
 INot to be printed, but to be used as a Precedent.} 
 
 [Seading as in Bequest for Arbitration.'] 
 
 The applicant [or respondent] applies to the judge to summon a medical 
 referee to sit with him as an assessor, on the ground that questions are 
 likely to arise in the arbitration as to the condition of the applicant or 
 his fitness for employment [or as the case may be}, and that it is desirable 
 that the judge should have the assistance of a medical referee in the 
 determination of such questions. 
 
 Dated this day of 
 
 To the Begistrar (Signed) A.B., 
 
 of the Court. Applicant. 
 
 or 
 Solicitor for the Applicant. 
 [or as the case ma/y be.} 
 I consent to a medical referee being summoned to sit with me as an 
 assessor. 
 
 Judge. 
 
 POBM 46. 
 
 Notice of Befusal to summon Medical Beferee as Assessor. 
 
 [Beading as in Bequest for Arbitration.} 
 
 I hereby give you notice that his Honour the Judge of this Court has 
 directed me to inform you that your application for a medical referee to 
 be summoned to sit with the judge as an assessor is refused, the judge 
 being of opinion that the summoning of a medical referee is unnecessary. 
 Dated this day of 
 
 Begistrar. 
 To 
 [the a/ppUcwnt 
 for an assessor.} 
 
 FOBM 47. 
 Surmnons to Medical Beferee to sit as Assessor. 
 [Title as in Bequest for Arbitration.} 
 The day of 
 
 Sir, 
 
 You are hereby summoned to attend and sit with the Judge as an 
 assessor at the court-house situate at 
 
 ?n ^ the day of at the hour of 
 
 m the noon. 
 
 I am, sir, 
 
 Your obedient servant, 
 
 °^ Begistrar. 
 
Worhmen's Compensation Bules, 1907 819 
 
 FoBM m. 
 
 Application for Beference to Medical Beferee under Schedule I., 
 Pcuragra/ph 15. 
 
 \Not to he printed, hut to he used as a Precedent.] 
 In the County Court of holden at 
 
 In the matter oJ the Workmen's Compensation Act, 1906. 
 In the matter of a claim for compensation made by A.B. 
 of , against O.D. & Co., Limited , of 
 
 [or, where an arbitration is pending, 
 
 In the matter of an arbitration between A.B. 
 of (address) 
 
 (description) Applicant, 
 
 and 
 CD. & Co., Limited , 
 
 of (address) 
 
 (description) Eespondents. 
 
 lor, where application is made after weekly payment has heen settled. 
 
 In the matter of an agreement [err a decision or, award m- certificate] 
 recorded in the above-mentioned Court as to the weekly payment 
 payable to A.B. , of , by O.D. & Co., 
 
 Limited , of 
 
 Application is hereby made to the Court on behalf of the above-named 
 A.B. and CD. & Co., Limited, for a reference in the above-mentioned 
 matter to a medical referee pursuant to paragraph 15 of the first schedule 
 to the above-mentioned Act under the following circumstances : — 
 
 !• On the day of notice was given by 
 
 Ipr on behalf of] the above-mentioned A.B. to the above-mentioned 
 
 C.D. & Co., Limited , of personal injury caused to the said A.B. 
 
 by accident arising out of and in the coiKse of his employment, in respect 
 of which injury the said A.B. claims compensation from the said 
 
 O.D. & Co., Limited, under the said Act. 
 
 [or, where arbitration is pending, 
 
 1. An arbitration under the said Act is pending between the above- 
 mentioned A.B. and the above-mentioned CD. & Co., Limited, 
 as to the amount of compensation 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.] 
 
 lor, where weekly payment has been settled, 
 
 1. Under an agreement lor a decision or award or certificate] in the 
 above-mentioned matter, recorded in this Court on the day of , 
 a weekly payment is payable to the above-mentioned A.B. by the 
 above-mentioned CD. & Co., Limited, as compensation in respect of 
 personal injury caused to the said A.B. by accident arising out of and in 
 the course of his employment.] 
 
 2. The weekly payment claimed by lor payable to] the said A.B. 
 is 
 
 3. A question has [or Questions have] arisen between the said A.B. 
 
 and the said CD. & Co., Limited, as to the condition 
 
 lor fitness for employment] of the said A.B. lor as to whether [or 
 
 to what extent] the incapacity of the said A.B. is due to the 
 
 accident], lor as to the condition lor fitness for employment] of the said 
 A.B. and as to -whether lor to what extent] the incapacity of the 
 
820 Appendix 
 
 said A.B. is due to the aooident], and no agreement can be 
 
 come to between the said CD. & Co., Limited, and the said 
 
 A.B. with reference to such question [or questions]. 
 
 4. The said A.B. has submitted himself for examination by a 
 
 medical practitioner provided by the said CD. & Co., Limited, [or 
 
 has been examined by a medical practitioner selected by himself] lor, if so, 
 the said A.B. has submitted himself for examination by a medical 
 
 practitioner provided by the said CD. & Co., Limited, and has also 
 
 been examined by a medical practitioner selected by himself], and a copy 
 of the report of the said practitioner is [or copies of the reports of the said 
 practitioners are] annexed to this application. 
 
 The applicants request that an order may be made referring the matter 
 to a medical referee for his certificate as to the condition of the said 
 A.B. and his fitness for employment, specifying if necessary the 
 
 kind of employment for which he is fit, [or for his certificate whether [or 
 to what extent] the incapacity of the said A.B. is due to the accident] [or 
 for his certificate as to the condition of the said A.B. and his fitness 
 
 for employment, specifying if necessary the kind of employment for which 
 he is fit, and as to whether [or to what extent] the incapacity of the said 
 A.B. is due to the accident]. 
 
 Dated this day of 
 
 (Signed) 
 
 Applicant. 
 [or Applicant's Solicitor.] 
 CD. & Co., Limited, 
 by Secretary, 
 
 [or 
 
 Solicitors for CD. & Co., Limited.] 
 To the Eegistrar. 
 
 FoEM 49. 
 
 Order of Reference, Schedule L, Paragraph 15. 
 
 In the County Court of holden at 
 
 [Heading as in Application.'] 
 
 On the application of A.B. of and CD. & Co., 
 
 Limited, 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 Work- 
 men's Compensation Act, 1906, to examine the said \name 
 of workman), and to give his certificate as to the condition of the 
 said and his fitness for employment, specifying if necessary the 
 kind of employment for which he is fit [or his certificate whether [or to 
 what extent] the incapacity of the said is due to the accident] 
 [or his certificate as to the condition of the said and his fitness 
 for employment, specifying if necessary the kind of employment for which 
 he is fit, and as to whether [or to what extent] the incapacity of the 
 said is due to the accident]. 
 
 Copies of the reports of the medical practitioners by whom the 
 said has been examined are hereto annexed. 
 
 The said , who is now at , has been directed 
 
 to submit himself for examination by the referee. 
 
Workmen's Compensation Bules, 1907 821 
 
 I am satisfied that the said is in a fit condition to travel foe 
 
 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.] 
 
 The referee is requested to forward his certificate to the Registrar at 
 the County Court Office situate at on or before the day 
 
 of 
 
 Dated this day of 
 
 Eegistrar. 
 
 FOKM 50. 
 
 Order on Injured Workman to submit himself for Exa/mmation by 
 Medical Referee. 
 
 In the County Court of holden at 
 
 [^Heading as in AppUcaUon.] 
 
 To A.B. , of [address and description]. 
 
 Take Notioe, 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 examine you in accordance 
 with the application in the above-mentioned matter for a reference to a 
 medical referee. 
 
 You are hereby required to submit yourself for examination by the 
 referee [add, where workman is in a fit condition to tramel, and to attend for 
 that purpose at such time and place as may be fixed by him]. 
 
 Dated this day of 
 
 Registrar. 
 
 Form 51. 
 NoUce to Parties of Certificate of Medical Referee. 
 
 In the County Court of holden at 
 
 [Heading as in AppUcation.] 
 
 Take Notice, that I have received the certificate of the medical referee 
 annointed in this matter, and that you may inspect the same during office 
 hours at my office situate at , and may on request and at your 
 
 own cost be furnished with or take a copy thereof. 
 
 Dated this day of 
 
 ipo Eegistrar. 
 
 and 
 
822 - Appendix 
 
 FoBM 52. 
 
 Notice of AppUcation far Suspension of Right to Cow/pensation or to take or 
 prosecute Proceedings in relation to Compensation, or of Bight to Weekly 
 Payments, under Schedule I., Pa/ragra/ph i, Paragraph li, or Paragraph 
 15, and Rule 55. 
 
 [Not tQ be printed, but to be used as a Precedent.} 
 
 In the Comity Court of holden at 
 
 In the matter of the Workmen's Compensation Act, 1906. 
 
 In the matter of a claim for compensation made by A.B. 
 of against CD. & Co., Limited, of 
 
 [or, where an arbitration is pending. 
 
 In the matter of an arbitration between 
 A.B. 
 of {address) 
 
 (description) AppUoant, 
 
 and 
 CD, & Co., Limited, 
 of (aMress) 
 \d ■ ■■ 
 
 s.] 
 
 [or, where application is made after weekly payment has been settled, 
 
 In the matter of an agreement [or a decision or an award or a 
 certificate] recorded in the above-mentioned court as to the weekly 
 payment payable to A.B. of 
 
 by CD. & Co., Limited, 
 of .] 
 
 Take Noticb, that I intend to apply to the judge at 
 on the day of at the hour of in 
 
 the noon [on behalf of Messrs. CD. & Co., Limited, of, etc., 
 
 ] for an order suspending your right to compensation 
 in the above-mentioned matter and to take or prosecute any proceedings 
 imder the above-mentioned Act in relation to oompensationi [or suspendinjg 
 your right to weekly payments in the above-mentioned matter], on the 
 ground that you refuse to submit yourself to medical examination as re- 
 quired by me [or by the said CD. & Co., Limited], in accordance with 
 paragraph 4 [or paragraph 14] of the first schedule to the Act [or that you 
 obstruct the medical examination required by me [or by the said CD. & 
 Co., Limited,] in accordance with paragraph 4 [or paragraph 14] of the first 
 schedule to the Act], [or on the ground that you refuse to submit yourself 
 for examination by a medical referee as ordered under paragraph 15 of the 
 first schedule to the Act, or that you obstruct the examination by a medical 
 referee ordered under paragraph 15 of the first schedule to the Act], and for 
 consequential directions, and for costs. 
 
 Dated this day of 
 
 To A.B., of (Signed) CD. & Co., Limited, 
 
 and to Messrs. by Secretary, 
 
 his Solicitors [Or 
 
 Solicitors for CD. & Co., Limited.] 
 
Workmen's Compensation Rules, 1907 823 
 
 Poem 53. 
 Praci^ for Payment into Court under Schedule I., Paragraph 5. 
 [Not to be printed, hut to be used as a Precedent.'] 
 In the County Court of holden at 
 
 In the matter of the Workmen's Compensation Act, 1906, 
 
 and 
 In the matter of an Arbitration between 
 A.B. 
 
 °*. sto. AppUoant, 
 
 and 
 CD. & Co., Limited, 
 
 °*> 6to. Eespondents. 
 
 or 
 [In the matter of an Agreement between 
 A.B. 
 
 of, etc. 
 
 and 
 CD. & Co., Limited, 
 
 of, etc. ■] 
 
 or 
 [In the matter of a Certificate given in an action in (state court), 
 Between 
 A.B. 
 
 oi, etc. Plaintiff, 
 
 and 
 CD. & Co., Limited, 
 
 of, etc. Defendants.] 
 
 [or as the case may 6e.] 
 Take Notice, that CD. & Co., Limited, of 
 
 [or Messrs. solicitors for CD. & Co., Limited, 
 
 of ] do pay into court [when paAd by solicitors, 
 
 add at the request and by the authority of the said CD. & Co., Limited, 
 ], the sxmi of {state stim, in letters) , being the 
 
 sum awarded [or agreed or directed] to be paid by the said CD. & Co., 
 Limited, as compensation in the above-mentioned matter. 
 
 Dated this day of 
 
 (Signed) CD, & Co., Limited, 
 
 by 
 
 Secretary, 
 [or 
 
 Solicitors for CD. & Co., Limited.] 
 To the Begistrar. 
 Beceived the above-mentioned sum of 
 
 Begistrar. 
 [Date.} 
 
824 Appendix 
 
 Form 5i. 
 
 Application for Order for Payment into Cowrt of Weekly Payment payable to 
 Person under Disability. Schedule I., Paragraph 7. 
 
 [Not to be printed, but to be used as a Precedent.} 
 
 In the County Court of holden at 
 
 [Heading as in Award, Memorandum, or Certificate.'] 
 
 Take Notice, that I [name and address of appUcaMt] 
 intend to apply to the judge at on the day of , 
 
 at the hour of in the noon, for an order that the weekly 
 
 payment payable in the above-mentioned matter to a person 
 
 under legal disability, [or to me] be during his [or my] disability paid 
 into court, and for consequential directions. 
 
 Dated this day of 
 
 To the Begistrar 
 and {to the parties 
 mterested). 
 
 (Signed) 
 
 POBM 55. 
 
 Application for Variation of Order under Schedule I., Paragraph 9. 
 
 [Not to be printed, but to be used as a Precedent.} 
 
 [Seadmg as in, Award, Memorandum or Certificate.} 
 
 Take Notice, that I [name and address of applicant} 
 intend to apply to the judge at a Court to be holden on the 
 
 day of , at the hour of in the noon, for 
 
 an order that the order of the court [or the award] made in the above- 
 mentioned matter on the day as to the apportionment 
 of the sum paid as compensation among the dependants of A.B, 
 deceased [or as to the manner in which the sum payable to 
 a dependant of A.B. deceased, should be invested, applied or 
 otherwise dealt with] may be varied by directing {here state 
 variation claimed by appUca/nt} 
 
 and for consequential directions. 
 
 And further take notice that the circuinstances in which this application 
 is made are 
 
 (State particulars.) 
 
 Dated this day 
 
 (Signed) 
 
 Applicant. 
 
 To the Eegistrar, 
 and to (all persons 
 interested). 
 
 [or 
 
 Applicant's Solicitor.] 
 
Workmen's Compensation Ribles, 1907 825 
 
 Poem 56. 
 
 AppUcation by Workman intending to cease to reside in the United Kingdom 
 for Reference to Medical Referee under Schedule T„ Paragraph 18. 
 
 INot to be printed, but to be used as a Precedent.'} 
 
 In the County Court of holden at 
 
 In the matter o£ the Workmen's Compensation Act, 1906, 
 and 
 
 In the matter of an agreement [or a decision or award or oertifioate] 
 recorded in the above-mentioned Court as to the weekly payment 
 payable to A.B. of 
 
 by CD. & Co., Limited, of 
 
 Take Notice, that A.B. of to whom under 
 
 an agreement [or a decision or an award or a certificate] in the above- 
 mentioned matter recorded in this Court on the day of 
 a weekly payment of is payable by the 
 above-mentioned CD. & Co., Limited, as com- 
 pensation for personal injury caused to the said A.B. 
 by accident arising out of and in the course of his employment, intends to 
 cease to reside in the United Kingdom ; 
 
 And that the said A.B. intends to apply to the registrar 
 
 at , on the day of , at the hour of 
 
 in the noon, for an order referring to a medical referee the question 
 
 whether the incapacity of the said A.B. resulting from the injury 
 
 is likely to be of a permanent nature. 
 
 Dated this day of 
 
 (Signed) 
 
 Applicant. 
 [Or 
 
 Applicant's Solicitor. 
 
 To the Registrar of the Court 
 and to (the employer). 
 
 POBM 67. 
 
 Order of Reference, Schedule I., Paragraph 18. 
 
 In the County Court of holden at 
 
 On the application of 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 examine the said 
 [name of workman) , and to give his certificate as to whether the 
 
 incapacity of the said (nam£ of workman) resulting from the injury 
 
 is likely to be of a permanent nature. 
 
 The said , who is now at 
 
 has been directed to submit himself for examination by the referee. 
 
 B.E.L. ^ H 
 
826 Appendix 
 
 I am satisfied that the said ia in a fit condition 
 
 to travel for tlie 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.] 
 
 The referee is requested to forward his certificate to the Eegistrar at 
 the County Court Office situate at 
 
 on or before the day of , specifying 
 
 therein the nature of the incapacity of the said , and whether 
 
 the same is total or partial. 
 
 Bated this day of 
 
 Judge [or Registrar]. 
 
 FoBM 58. 
 [To be printed on thick blue foolscap.'] 
 Certificate of Identity. 
 [to be oabefdllt pbesbbved.] 
 
 Notice. — This Cebtipicate is no secubity whateveb fob a Debt. 
 
 No. of Certificate 
 
 In the County Court of holden at 
 
 meading as in Award, Memorandum, or Certificate.'] 
 
 This is to certify that A.B. late of (address and description), 
 
 is entitled to a weekly payment of from {name and address of 
 
 employer) 
 
 as compensation payable to the said A.B. in respect of personal 
 
 injury caused to him by accident arising out of and in the course of his 
 employment, such weekly payment to continue during the total or partial 
 incapacity of the said A.B. for work : 
 
 And that the description of the said A.B. and his incapacity for 
 
 work, as certified by the medical referee appointed in this matter, are as 
 follows : — 
 
 Age, 
 
 Height, 
 
 Hair, Eyes, 
 
 Nature of incapacity, 
 
 [Describe nature of incapacity, and whether the same is total or partial, 
 as in certificate of medical referee. 
 
 Dated this day of 
 
 Registrar. 
 
Workmen's Compensation Mules, 1907 827 
 
 FOEM 59. 
 
 Notice to he given to Workman intending to cease to reside in the United 
 Kingdom, 
 
 [Heading as in Award, Memorandum, or Certificate.'} 
 
 Take Noticb, that if you desire to obtain payment of the weekly 
 payments payable to you under the award [memorandum or certificate] 
 hereto annexed while you are residing out of the United Kingdom, you 
 must, at intervals of three months from the date up to which such pay- 
 ments have been made, submit yourself to examination by a medical 
 practitioner in the place where you are residing, and produce to him the 
 copy of the certificate of the medical referee and the certificate of identity 
 hereto annexed ; and you must obtain from such medical practitioner a 
 certificate in the form hereto annexed that he has examined you, and that 
 your incapacity resulting from the injury specified in the certificate of the 
 medical referee continues : and such certificate must be verified by the 
 medical practitioner by declaration in your presence before some such 
 person as hereinafter mentioned. 
 
 You must also attend before some such person as hereinafter mentioned, 
 and make a declaration in the form hereto annexed that you are the same 
 person as mentioned in the copy of the certificate of the medical referee 
 and in the certificate of identity hereto annexed, and in the certificate of 
 the medical practitioner by whom you have been examined, producing to 
 Buoh person the copy and certificates above mentioned. 
 
 You must then transmit to me, at my office, situate at 
 the certificate of the medical practitioner by whom you have been 
 examined, and your declaration, together witha request for transmission to 
 . you of the amount of the weekly payments due to you, specifying the place 
 where and the manner in which the amount is to be transmitted, according 
 to the form hereto annexed, which request must be signed in your own 
 handwriting. 
 
 The persons before whom a certificate may be verified or a declaration 
 made are : — 
 
 1. Any person having authority to administer an oath in the place in 
 which you reside. 
 
 2. Any British ambassador, envoy, minister, charge d'affaires, or 
 secretary of embassy or legation, exercising his functions in any foreign 
 place in which you reside, or any British consul-general, consul, vice- 
 consul, acting-consul, pro-oonsul, or consular agent exercising his functions 
 in any foreign place in which you reside. 
 
 Dated this day of 
 
 Kegistrar. 
 
 To A.B. 
 
 of {address and description). 
 
828 Appendix 
 
 Form 60. 
 
 Form of Medical Oertiflcate to be obtained by Workman residing out 
 of the United Kingdom. 
 
 [Heading as in Award, Memorandum, or Certificate.'] 
 I {name, address, and medical qualification of medical practitioner) 
 hereby certify that I have this day examined A.B. of , 
 
 whom I conscientiously believe to be the same person as A.B. 
 of , described in the copy certificate of the medical referee 
 
 in the above-mentioned matter, dated the day of , and 
 
 in the certificate of identity dated the day of produced 
 
 to me by the said A.B. ; and that in my opinion the incapacity 
 
 of the said A.B. resulting from the injury described in the said 
 
 certificate of the medical referee still continues. 
 
 Dated this day of 
 
 (Signature) 
 
 Declared at this day of , in the 
 
 presence of the said A.B. , the copy of the certificate of 
 
 the medical referee and the certificate of identity above-mentioned being 
 at the same time produced, 
 
 Before me- 
 
 [Signature and description of person before 
 whom the decla/i-ation is made.] 
 
 Poem 61. 
 
 Declaration of Identity by Workman residing out of the United 
 Kingdom. 
 
 [Heading as in Awa/rd, Memorandum, or Certificate.] 
 
 I, A.B. of hereby declare that I am the same 
 
 person as A.B. of described in the copy of the certifi- 
 
 cate of the medical referee in the above-mentioned matter, dated the 
 day of , now produced by me, and in the certificate of identity, 
 
 dated the day of , now produced by me, and the same 
 
 person as A.B. of described in the certificate of 
 
 declared by the said in my presence on the 
 
 day of , and now produced by me. 
 
 (Signed) 
 
 A.B. 
 
 Declared at this day of , the certificates 
 
 above mentioned being at the same time produced, 
 Before me — 
 
 [Signature and description of person before 
 whom the declataMsm is made.], 
 
Workmen's Gompensation Rules, 1907 829 
 
 Form 62. 
 
 Eeqiiest for Transmission of Amount of Weekly Payments by Workman 
 residing out of United Kingdom. 
 
 [Heading as in Award, Memorandum, or Certificate.'] 
 Sir, 
 
 I herewith enclose medical certificate and affidavit o£ identity, and 
 request that the amount of the weekly payments due to me in the above- 
 mentioned matter may be transmitted to me at 
 
 (give full address) 
 {state hoio transmission to be made, as) — 
 by Post Office Order payable at 
 
 {nam£ of Post Office) 
 or by bankers' draft on the 
 
 {name and address of Bank). 
 
 I am, Sir, 
 
 Your obedient Servant, 
 A.B. 
 
 [To be signed by the workman in his own handwriting.} 
 
 To the Begistrar 
 
 of the County Court of 
 holden at 
 
 [add address of Registrar's Office.] 
 
 Poem 63. 
 
 Notice by Registrar to Employer of Receipt of Medical Certificate 
 and Declaration of Identity. 
 
 [Heading as in Awa/rd, Memorandum, or Certificate.'] 
 
 Take notice, that I have received proof of identity and of continuance 
 of incapacity in the above-mentioned matter. 
 
 And I have to request you to transmit the sum of , being the 
 
 amount of the weekly payments payable to A.B. under the above- 
 
 mentioned award [memorandum or certificate] from {the date to wMch they 
 were last paid ) to {13 weeks from that date) 
 
 to me, to be by me remitted to the said A.B. 
 
 Dated this day of 
 
 Begistrar. 
 To {name and address of employer). 
 
83G Appendix 
 
 FOBM 64. 
 
 Notice of Application for Determination of Amount of Costs under 
 Schedule II., Paragraph 14. 
 
 [Not to be printed, but to be used as a Precedent.] 
 
 In the County Court of holden at • 
 
 [Heading as in Award or Memorandum.'] 
 
 Take Notice, that I intend to apply to the judge at 
 on the day at the hour of 
 
 o'cloot in the noon, to determine the amount of costs to be paid 
 
 to me as solicitor [or agent] for you A.B. in the above- 
 
 mentioned matter ; 
 
 and for an order declaring that I am entitled to a lien for such amount on 
 or to deduct such amount from the sum awarded as compensation to you the 
 said A.B. in the above-mentioned matter, 
 
 and for consequential directions. 
 
 Dated this day of 
 
 Applicant. 
 
 To the Registrar of the Court, 
 and to 
 A.B. 
 of 
 
 FoBM 65. 
 
 Execution on Award or Memorandum or Certificate. 
 
 In the County Court of holden at 
 
 [Seadi/ng as in Award, Memorandum, or Certificate.] 
 
 Whereas on the day of 
 
 an award was made in the above-mentioned matter by the judge [or by 
 Mr. , an arbitrator appointed 
 
 by the judge] whereby it was ordered [state operative parts of award] : 
 
 [or Whereas on th6 day of 
 
 a memorandum was recorded in this Court of an agreement [or a decision 
 or an award] come to [or given or made] in the above-mentioned matter, 
 whereby it was agreed [or ordered] [state operative parts of agreement, 
 decision, or a^ard] : 
 
Wm'kmen's Compensation Rules, 1907 
 
 831 
 
 {or Whereas on the day of a memorandum was 
 
 recorded in this Court of a certificate given by the County Court of 
 
 holden at 
 to the effect that [state operative parts of certificate'] : 
 
 And whereas default has been made in payment of the sum of £ 
 payable by the said into court 
 
 [or to the said A.B. ] according to the said 
 
 award [or memorandum or certificate] ; 
 
 These are therefore to require and order you forthwith to make and levy 
 by distress and sale of the goods and chattels of [name the 
 
 party against whose goods execution is issited} wheresoever they may be 
 found within the district of this Court (except the wearing apparel and 
 bedding of him or his family, and the tools and implements of his trade, 
 if any, to the value of five pounds), the sum stated at the foot of this 
 warrant, being the amount due under the said award [or memorandum or 
 certificate], together with the costs of this execution ; and also to seize 
 and take any money or bank notes (whether of the Bank of England or 
 of any other bank), and any cheques, bills of exchange, promissory notes, 
 bonds, specialities, or securities for monejf of the said which 
 
 may there be found, or such part or so much thereof as may be sufficient 
 to satisfy this execution, and the costs of making and executing the same, 
 and to pay what you shall have so levied to the Begistrar of this Court, 
 and to make retiurn of what you have done under this warrant immediately 
 upon the execution thereof. 
 
 Given under the seal of the Court this day of 19 . 
 
 By the Court, 
 
 Registrar. 
 
 To the High BaiUft of the said Court, 
 and others the Bailifis thereof. 
 
 Amount in payment whereof default has been made 
 
 £ 
 
 s. 
 
 d. 
 
 Poundage for issuing a warrant 
 
 
 
 
 Total amount to be levied [with fees for execution 
 of warrant, as indorsed hereon] 
 
 
 
 
 Notice. — The goods and chattels are not to be sold until after the end of 
 five days next following the day on which they were seized, unless 
 they be of a perishable nature, or at the request of the said 
 Application was made to the Registrar for this warrant at minutes 
 
 past the hour of in the ' *'■" 
 
 day of 19 • 
 
 See Back. 
 
 noon of the 
 
832 Appendix 
 
 51 & 62 Vict. [To be indorsed on every warrwnt of execution.'] 
 
 c. 43, 8. 156. 
 
 Fees fob the Execution op this Wabbant. 
 
 RuU n^^" '^^^ ^®®^ *°' keeping possession of the goods seized (including expenses 
 
 of removal, storage of goods, and all other expenses) is sixpence in the 
 
 POUND PBB DAY NOT EXCEEDING SEVEN DAYS ON THE VAIjUB OF SUCH 
 
 GOODS, to be fixed by appraisement in case of dispute, so that the total fee 
 does not exceed 10s. per day although the value may exceed 20i., and, in 
 addition, for feeding animals, the actual cost thereof. 
 
 If the debtor pays the amount to be levied, as stated on the other side, 
 within half an hour of the entry of the bailiff, he will not be required to 
 pay to him any further sum. 
 
 If possession is kept after the seventh day at the written request of both 
 parties, the fees and cost of keeping possession as above may be allowed for 
 a reasonable further time in respect of such possession. 
 
 If the goods are removed, the debtor will have to pay the appraisement 
 fee as undermentioned. 
 
 If the goods are sold, the following fees are chargeable for the appraise- 
 ment and sale, and no others : — 
 
 For the appraisement, sixpence in the pound on the value of the 
 goods appraised, over and above the stamp duty. 
 
 For the sale, including advertisements, catalogues, sale and com- 
 mission, and delivery of the goods, one shiliino in the pound on 
 
 THE NET PEODUCE OF THE SALE. 
 
 For advertising and giving publicity to any sale by auction, pursuant 
 to section 145 of the Bankruptcy Act, 1883, in addition to the last- 
 mentioned fee, the sum actually and necessarily paid. 
 
 Where no sale takes place by reason of the execution being with- 
 drawn, satisfied, or stopped, there may be allowed all charges actually and 
 necessarily incurred for inventory, appraisement, cataloguing, lotting, and 
 preparing for sale, not exceeding one shiiiLIng in the pound on the value 
 of the goods seized, if such value does not exceed ten pounds, and eight- 
 pence IN the pound on any excess above ten pounds, the value to be fixed 
 by appraisement in case of dispute, and in addition any sum actually and 
 necessarily paid for advertising pursuant to section 145 of the Bankruptcy 
 Act, 1883. 
 
 If the goods are removed, the bailiff is required to give the debtor a 
 sufficient inventory of the goods so removed, and to give him notice of the 
 time when and the place where such goods will be sold, at least twenty- 
 four hours before the time fixed for the sale. 
 
 If the goods are sold, the bailiff is required to furnish the debtor, on 
 request, with a detailed account in writing of the sale, and of the application 
 of the proceeds thereof. 
 
 \TMs form to he adapted to the circumstances of tlie case where execution 
 is ordered to issue under Rule 66, paragraph (e), for costs.] 
 
Workmen's Compensation Rules, 1907 833 
 
 FoBM 66. 
 
 Judgment Summons on Award, Memorandum, or Certificate. 
 
 In the County Court of holden at 
 
 {Heading as in Award, Memorandum, or Certificate.'] 
 
 Whereas on the day of 
 
 an award was made in the above-mentioned matter by the judge [oj- by 
 Mr. , an arbitrator appointed by the judge], 
 
 whereby it was ordered [state operative parts of award"] : 
 
 [or Whereas on the day of 
 
 a memorandum was recorded in this Court of an agreement [or a decision 
 or an award] come to [or given or made] in the above-mentioned matter, 
 whereby it was agreed [or ordered] [state operative parts of agreement, 
 decision, or award] : 
 
 [or Whereas on the day of 
 
 a memorandum was recorded in this Court of a certificate given by the 
 
 County Court of holden at 
 
 to the effect that [state operative parts of certificate] : 
 
 And whereas default has been made in payment of the sum of £ 
 payable by you the above-named into court [or to 
 
 the said A.B. ] according to the said award [or memorandum 
 
 or certificate] : 
 
 You the said are therefore 
 
 hereby summoned to appear personally in this Court at [place where court 
 holden] on the day of 19 , 
 
 at the hour of in the noon, to be examined on oath 
 
 by the Court touching the means you have or have had since the date of 
 the award [or memorandum or certificate] to pay the said sum, in payment 
 of which you have made default ; and also to show cause why you should 
 not be committed to prison for such default, or why a receiving order 
 should not be made against you pursuant to sub-section 5 of section 103 of 
 the Bankruptcy Act, 1883. 
 
 Dated this day of 19 . 
 
 Registrar. 
 
 To [name and address of the party against 
 
 whom the summons is issued]. 
 
834 
 
 Appendix 
 
 Amount in payment of which default has been made 
 Costs of this summons 
 
 £ 
 
 5, 
 
 d. 
 
 Total sum due 
 
 
 
 
 Note. — This form to be adapted to the circumstances of the case where a 
 summons is issued under the County Court Rules, Order XXV., Rule 27, 
 against a person alleged to be a partner in or sole member of a firm, or to be 
 carrying on busitiess in any name other than his own ; see Form 184 in the 
 Appendix to the County Court Rules. If an order of commitment is made it 
 should be according to Form 189 or Form 191 in the said Appendix, such form 
 being adapted to the case of default in payment of an amount due under an 
 award, mem^rand/um, or certificate. 
 
 FOBM 67. 
 
 Begister. 
 
 The Workmen's Compensation Act, 1906. 
 
 Register. 
 
 No. of 
 Matter. 
 
 In the matter 
 of arbitra- 
 tion between 
 A.B., of, etc.. 
 Applicant, 
 
 and 
 CD. & Co., 
 Limited, of, 
 etc.. Respon- 
 dents. 
 
 Date or 
 Proceedings. 
 
 July 11, 1907 
 
 July 20, 1907 
 
 July 24, 1907 
 July 29, 1907 
 July 29, 1907 
 
 Aug. 5, 1907 
 
 Aug. 8, 1907 
 
 Aug. 15, 1907 
 Aug. 19, 1907 
 
 Aug. 23, 1907 
 
 Sept. 5, 1907 
 
 Got. 16, 1907 
 
 Oct. 23, 1907 
 Nov. 5, 1907 
 
 Nov. 11, 1907 
 
 Nature. 
 
 Request for arbitration filed, and 
 copy sent to judge. 
 
 Appointment of Mr. 
 as arbitrator. 
 
 Copy request sent to arbitrator. 
 
 Day for arbitration fixed. 
 
 Notice of day fixed sent to appli- 
 cant, and notice with copy request 
 sent to respondents by registered 
 post. 
 
 Respondents' answer filed; copies 
 sent to arbitrator and applicant. 
 
 Application by applicant for dis- 
 covery ; order made. 
 
 Respondents' affidavit filed. 
 
 Five subpcenas issued on application 
 of applicant's solicitor. 
 
 Arbitration held ; Mr. 
 appointed as medical referee to 
 report; further hearing adjourned. 
 
 Report of medical referee received 
 and forwarded to arbitrator; notice 
 given to the parties. 
 
 Further hearing. Award made as 
 follows (enter minute of award). 
 
 Costs of applicant taxed at & 
 
 & for costs paid into Court by 
 
 respondents. 
 
 & for costs paid to applicant's 
 
 solicitor. 
 
Workmen's Compensation Rules, 1907 
 Register — continued. 
 
 835 
 
 No. of 
 Matter. 
 
 Title. 
 
 Date of 
 Proceedings. 
 
 Nature. 
 
 2 
 
 In the matter 
 
 Oct. 7, 1907 
 
 Memorandum o£ agreement as to 
 
 
 of an agree- 
 
 
 compensation, signed by solicitor 
 
 
 ment be- 
 
 
 of A.B., left to be recorded. 
 
 
 tween A.B., 
 
 Oct. 8, 1907 
 
 Notice and copy memorandum sent 
 
 
 of 
 
 
 by post to B.P. & Co., Limited. 
 
 
 and E.F. & 
 
 Oct. 10, 1907 
 
 Notice received from E.F. & Co., 
 
 
 Co.,Limited, 
 
 
 Limited, disputing memorandum. 
 
 
 of, etc. 
 
 Oct. 10, 1907 
 
 Notice sent to A.B.'s solicitor, that 
 memorandum is disputed, and vrill 
 not be recorded without consent 
 in writing of E.F. & Co., Limited, 
 or order of Judge. 
 
 
 
 Oct. 15, 1907 
 
 AppEoation on behalf of A.B. that 
 memorandum be recorded. 
 
 
 
 Oct. 22, 1907 
 
 Application heard, and order made 
 that memorandum be recorded 
 with alterations. 
 
 
 
 Oct. 24, 1907 
 
 Memorandum recorded as follows 
 [set out memorandum]. 
 
 
 
 Oct. 31, 1907 
 
 Costs of A.B. taxed and allowed 
 at£ 
 
 
 
 Nov. 18, 1907 
 
 Execution issued for costs. 
 
 etc., etc., etc. 
 
 Note. — Simila/r entries to be made as to all matters required to be 
 recorded. 
 
 We, William L. Selfe, WiUiam CecU Smyly, Robert Woodfall, 
 Thomas C. Granger, and H. Tindal Atkinson, being the five judges 
 of the CoTuity Courts appointed for the making of Rules under section 
 one hundred and sixty-four of the County Courts Acts, 1888, having 
 made the foregoing Rules of Court, pursuant to paragraph twelve of 
 the Second Schedule to the Workmen's Compensation Act, 1906, do 
 hereby certify the same under our hands, and submit them to the Lord 
 Chancellor accordingly. 
 
 Wm. L. Selfe. 
 
 William Cecil Srn/yly. 
 
 B. Woodfall. 
 
 T. C. Granger. 
 
 Hi Tindal Atkinson. 
 
 I allow these Rules, 
 
 Loreium, C. 
 
 The 1st of June, 1907. 
 
836 Appendix 
 
 STATUTORY EULES AND OEDERS, 1908. 
 No. 214, L. 5. 
 
 MASTER AND SERVANT. 
 Workmen's Compensation Act, 1906. 
 
 The Workmen's Compensation Rules, 1908. Dated March 14, 1908. 
 
 The following Rules shall have efEect under the Workmen's 
 Compensation Act, 1906. 
 
 These Rules may be cited as the Workmen's Compensation Rules, 
 1908, or each Rule may be cited as if it had been one of the Workmen's 
 Compensation Rules, 1907 (herein referred to as the principal' Rules), 
 and had been numbered therein by the number of the Rule placed in 
 the margin opposite such Rule. 
 
 These Rules shall come into operation on the 1st day of May, one 
 thousand nine hundred and eight. 
 
 Parties to Arbitration before Judge or Arbitrator appointed by Judge. 
 
 1. The following paragraph shall be added to Rule 5 of the 
 principal Rules, viz. : — 
 
 (4) The registrar shall within twenty -four hours from the time of 
 payment made pursuant to the last preceding paragraph send notice 
 thereof to the applicant and to the other respondents (if any), and the 
 employer shall not be liable to any costs otherwise than in accordance 
 with paragraph 5 (c) of Rule 18. 
 
 Industrial Diseases. 
 
 Amendment of 2. Paragraph 1 of Rtile 39 of the principal Rules is hereby 
 
 annulled, and the following paragraph shall stand in lieu thereof, 
 viz. : — 
 
 (1) In the application of the Act and these Rules in the case of a 
 workman disabled by or suspended on account of his having contracted 
 any disease mentioned in section 8 of and the third scheditle to the 
 Act, or in any order of the Secretary of State made under sub-section 6 
 of the said section, or disabled by or suspended on account of his having 
 sustained any injury due to the nature of any employment specified iu 
 any such order, not being an injury by accident, or in the case of a 
 
Workmen's Compensation Rides, 1908 837 • 
 
 workman whose death has been caused by any such disease or injury 
 as above mentioned, the following provisions shall have effect. 
 
 Notice of Bay fixed. 
 3. Rule 14 of the principal Rules shall be read and construed as if Amendment ot 
 the words " signed by the registrar himself and " were omitted ^"'^ "" 
 therefrom. 
 
 Payment into Court and Investment and Application of Money payable 
 in case of Death. Schedule L, Paragraph 5. 
 
 4 Riile 56 of the principal Rules is hereby annulled, and the 
 following Rule shall stand in lieu thereof :— 
 
 56a. — (1) Where any payment in the case of death is to be paid Payment into 
 
 . 1 ,-, r\ j_ /~\ i court, Invest- 
 
 into the County Court pursuant to paragraph 5 of the first schedule ment, and 
 to the Act, the following provisions shall have effect. pa?m?ntta°' 
 
 (2) Where any money is to be paid into court under an award Act, Schedule \, 
 made by the judge or an arbitrator appointed by him, payment shall ''"■ ^' 
 
 be made in accordance with the directions contained in the award. 
 
 (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. 
 
 (4) If there is no dispute as to the amount payable, but no valid 
 agreement can be come to by reason of the disability or absence of the 
 dependants or any of them, payment shall be made into the court in 
 which, if a valid agreement could be come to in the matter, such 
 agreement would be recorded. 
 
 (5) Where money is to be paid into court under paragraph 2 or 
 paragraph 3 of this Rule, the employer shall lodge with the registrar 
 
 a praecipe in duplicate according to the form 53 in the Appendix, and Forms 53, 53.1. 
 
 where money is to be paid into court under paragraph 4, the employer 
 
 shall lodge with the registrar a praecipe in duplicate according to the 
 
 form 53a in the Appendix. The employer shall annex to one copy of 
 
 the prsecipe a form of receipt, and the registrar, on receipt of the sum 
 
 paid in, shall sign the receipt and return the same to the employer ; 
 
 and the employer shall forthwith give notice to the persons interested 
 
 in the sum paid in of such payment having been made. 
 
 (6) On the payment of money into court, the registrar shall forth- 
 with send by post to each of the persons appearing by the award, 
 memorandum, certificate, or praecipe to be interested in such money a 
 notice of the said payment according to the form 53b in the Appendix. Form 63b. 
 Provided that in the case of infant dependants residing with their 
 
838 Appendix 
 
 mother or giiardian it shall he sufficient to send such notice to the 
 mother or guardian only. 
 
 (7) If all ctuestions 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. 
 
 (8) If such q^uestions 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, or if no question 
 arises as to who is a dependant or as to the amount payable 
 to any dependant, or otherwise as to the application of the 
 sum paid into court, but any of the persons interested in 
 the said sum are absent or under disability, the amount 
 paid into court shall, on appKcation by or on behalf of the 
 persons interested therein, be invested, applied, or otherwise 
 dealt with by the court for the benefit of the persona 
 interested therein 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 
 application of the sum paid into court, such question shall 
 be settled by the court by arbitration in accordance with 
 these Kules; 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. 
 
 (9) 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. 
 
 (10) — (a) 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 the investment or application of any sum paid into 
 court, or of the amount allotted to any person, shall be made in court 
 on notice in writing, stating on whose behalf the application is mad£„ 
 
Workmen's Compensation Bules, 1908 839 
 
 and the order which the applicant asks, according to the form in the Form 53c. 
 Appendix. 
 
 (6) The notice shall be filed with the registrar, and where the 
 application is made by or on behalf of some only of the persons 
 interested, notice thereof shall be served on all other parties interested, 
 or on their solicitors, five 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, after making 
 or directing such inquiries as to the dependants and on such evidence 
 of title and identity as he may think necessary, make such order under 
 paragraph 5 of the first schedule to the Act and this rule as he may 
 think fit. 
 
 (e) The provisions of the Act and these Kuleg as to the costs of an 
 arbitration shall apply to any such application. 
 
 (11) An employer paying money into court under this rule shall 
 not be liable to any costs incurred by any person interested in such 
 money after the receipt of notice of payment into court; but the 
 judge may, in his discretion, order such employer to pay the costs of 
 any such person properly incurred before the receipt of such notice. 
 
 (12) 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. 
 
 (13) Where 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 a&ce 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. 
 
 Proceedings where Workman receiving weehly payment intends to 
 cease to reside in the United Kingdom. Schedule I., Para- 
 graph 18. 
 5. Paragraphs 3 to 7 of Rule 60 of the principal Rules and Amendment 
 
 Forms 56, 57, and 58, are hereby annulled, and the following para- FomBM°5°,'' 
 
 graphs and Forms 56a, 57a, and 58a in the Appendix shall stand in "'"' ^^■ 
 
 Ueu thereof .— 
 
840 Appendix 
 
 60. — (3) The appKcation shall be made on notice in writing', 
 Form 56a. according' to the form in the Appendix, which shall be filed with the 
 
 registrar, and shall be accompanied by a report of a medical practitioner 
 selected by the workman, setting out the nature of the incapacity 
 alleged to be the result of the injury ; and a copy of the application 
 and of the report shaU 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 for the use of the medical referee. 
 
 (4) The employer may, on being served with notice of the appli- 
 cation, require the workman to submit himself for examination by a 
 medical practitioner provided and paid by the employer, in accordance 
 with paragraph 14 of the first schedule to the Act ; and if the employer 
 requires the workman to submit himseK for such examination he shall 
 before or at 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. 
 
 (4a) The workman and the employer respectively may before or at 
 the hearing of the application submit to the registrar such statements 
 in writing as they may think fit, with copies of such statements for 
 the use of the medical referee. 
 
 (5) On the hearing of the application the registrar, on being 
 Form s?A. satisfied that the applicant has a bond fide intention of ceasiag to 
 
 reside in the United Kingdom, shall make an order referring 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 60. 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 Rule 54 shall with 
 the necessary modifications apply. 
 
 (6a) The registrar shall with the order of reference forward to 
 the medical referee copies of any statements submitted to him by 
 either party. 
 
 (7) The medical referee shall forward his certificate in the matter 
 to the regristrar by regfistered post, specifying therein the nature of 
 the incapacity of the workman resulting from the injury, and whether 
 such incapacity is likely to be of a permanent nature; and the 
 
 Form 61. registrar shall thereupon proceed in accordance with paragraph 8 of 
 
 Rule 54. 
 
Workmen's Gompensation Rules, 1908 841 
 
 APPENDIX. 
 
 Poem 53. 
 [Soe Appendix to Principal Rules.] 
 
 Form 53a. 
 
 PrcBcipe for Payment into Court under Schedule I., Paragraph 5, wh^re no 
 
 valid Agreement can be come to. 
 
 [Not to be printed, but to be used as a Precedent.'] 
 
 In the County Court of ■ holden at 
 
 No. of matter. 
 In the matter of the Workmen's Compensation Act, 1906, 
 
 and 
 In the matter of an injury by accident to A.B. , late 
 
 of , which resulted in the death of the 
 
 said A.B. 
 Take Notice, 
 
 1. That on the day of personal injury by accident 
 arising out of and in the course of his employment was caused at 
 
 (state place of accident) to A.B. 
 
 , late of deceased, a workman employed by 
 
 [or by , a contractor with for 
 
 the execution of work undertaken by than], and on the day 
 
 of the death of the said Al.B. resulted from the 
 
 injury. ■ ■ 
 
 2. There is no dispute as to the liability of the said 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 as to the amount payable as compensation, 
 but no valid agreement can be come to in the matter by reason of the 
 disability [or absence] of the dependants or some of them. 
 
 3. The said of 
 
 \pr Messrs. , solicitors for the said 
 
 of ] do therefore pay into court [when paid by 
 
 solicitors, add at the request of the said ] the sum 
 
 of {state sum in letters), being the amount payable by the 
 
 said as compensation in the above-mentioned matter. 
 
 4. To the best of the knowledge and belief of the said _ the 
 persons interested in the said sum as dependants of the said A.B. 
 
 are 
 [State dependants, with their ages amd relationship to deceased workman, 
 and places of residence, so far as 'known.'] 
 
 Dated this day of 
 
 (Signed) 
 
 [or 
 
 To the Eegistrar. 
 
 Beceived the above-mentioned sum of 
 
 B.E.L. 
 
 Solicitors for 
 
 Registrar, 
 (Date.) 
 
 3 I 
 
842 Appendix 
 
 POHM 53b. 
 
 Notice by Registrar of Payment into Court under Schedule I., paragraph 5. 
 
 In the County Court of holden at , 
 
 [Heading as in Prmcipe for Payment into Court,'] 
 
 Take Notice, that the sum of 
 
 has been paid into court as compensation in the above-mentioned matter. 
 
 Any person interested in the said sum may apply to the court for an 
 order for the investment and application of the said sum for the benefit of 
 the persons entitled thereto in accordance with paragraph 5 of the first 
 schedule to the Workmen's Compensation Act, 1906, and the rules of court 
 made under the said Act. 
 
 Dated this day of 
 
 To 
 Hours of attendance, &c. 
 
 Begistrar. 
 
 Form 53c. 
 
 Application for Investment or Application of Money paid into Court under 
 Schedule I., paragraph 5. 
 
 [Not to be printed, but to be used as a Precedent.] 
 
 (1) A-pplication for investment and application of the sum paid into court. 
 
 In the County Court of holden at 
 
 [Heading as in Pracipe for Pa/yment into Court.] 
 
 Take Notice, that I [name and address of applicant] 
 
 intend to apply to the judge at , 
 
 on the day of , at the hour of 
 
 in the noon, on behalf of myself and of 
 
 [specify the persons on whose behalf the 
 application is made], as dependants of the above-named A.B., 
 for an order for the investment and application of the sum paid into court 
 in the above-mentioned matter, and for the allotment of the same between 
 the dependants of the said A.B. 
 
 To the best of my knowledge and belief the persons interested in the 
 said sum as dependants of the said A.B. 
 are 
 
 [State dependants, with their ages and relationship to deceased workman, 
 and places of residence.] 
 
Workmen's CompeTisation Rules, 1908 843 
 
 I intend to apply for an order for the investment and application of tlie 
 said sum, and for the allotment of the same between the dependants of the 
 said A.B. as foUows, viz. :— 
 
 iState how applicant wishes the sum to be dealt with] 
 
 or in such other manner as the court in its discretion thinks fit for the 
 benefit of the persons entitled thereto under the above-mentioned Act, and 
 for consequential directions. 
 
 Dated this day of . 
 
 (Signed) 
 
 To the Begistrarand (to any other parties 
 interested, where the application is made 
 on behalf of some only of the parties 
 interested.) 
 
 (2) Application for Investment and Application of the Amoiml allotted to 
 
 any Person. 
 In the County Court of holden at 
 
 [Heading as in Pracipe for Payment into Court,} 
 Take Notice, that I {name and address of applicant) 
 
 intend to apply to the judge at 
 on the day of at the hour of 
 
 in the noon, on behalf of myself [or of ] 
 
 for an order for the investment and application of the sum paid into court, 
 in the above-mentioned matter and allotted to me [or to the said 
 
 ]• 
 I intend to apply for an order for the investment and applicition of the 
 said sum as follows, viz. : — 
 
 [State how applicant wishes the sum to be dealt with] 
 
 or in such other manner as the court in its discretion thinks fit for my 
 
 ]. 
 
 benefit {or for the benefit of the said 
 and for consequential directions. 
 
 
 Dated this 
 
 day 
 
 of 
 (Signed) 
 
 To the Begistrar. 
 
 
 
844 Appendix 
 
 POBM 56a. 
 
 Application by Workman inUnding to cease to reside in the United Kingdom 
 for Reference to Medical Beferee under Schedule I., Paragraph 18. 
 [Jfo< to be printed, but to be used as a Precedent.] 
 In the County Court of holden at 
 
 In the matter of the Workmen's Compensation Act, 1906, 
 
 and 
 In the matter of an agreement {or a decision or an award or a 
 certificate] recorded in the above-mentioned Court as to the weekly 
 payment payable to A.B. of 
 
 by CD. & Co., Limited, of 
 
 Take Notice, that A.B. of , to whom under 
 
 an agreement lor a decision or an award or a certificate] in the above- 
 mentioned matter recorded in this Court on the day of a weekly 
 payment of ia payable by the above-mentioned CD. & Co., 
 Limited, as compensation for personal injury caused 
 to the said A.B. by accident arising out of and 
 in the course of his employment, intends to cease to reside in the United 
 Kingdom ; 
 
 And that the said A.B. intends to apply to the registrar 
 
 at , on the day of , at the hour of 
 
 in the noon, for an order referring to a medical referee the question 
 
 whether the incapacity of the said A.B. resulting from the injury 
 
 is likely to be of a permanent nature. 
 
 A report of a medical practitioner, setting out the nature of the incapacity 
 of the said A.B. resulting from the injury, is hereto annexed. 
 
 Dated this day of 
 
 (Signed) 
 
 Applicant. 
 [Or 
 
 Applicant's Solicitor.] 
 To the Registrar of the Court 
 and to (the employer). 
 
 Form 57a. 
 
 Order of Beference, Schedule I., Paragraph 18. 
 
 In the County Com't of holden at 
 
 \_Heading as in Application, Form 56a.] 
 
 On the application of 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 examine the said 
 (name of workman) , and to give his certificate as to whether the 
 
 incapacity of the said (name of workman) resulting from the injury 
 
 is likely to be of a permanent nature. 
 
 A copy [or copies] of the report [or reports] of the medical practitioner 
 [or practitioners] by whom the said has been examined is 
 
WorJcmen's Compensation Rules, 1908 845 
 
 \pr are] hereto annexed. [Add, if so, Copies of the statements submitted 
 to me by the parties are also hereto annexed.] 
 
 Th? 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. 
 
 lor The said does not appear to be in a fit 
 
 condition to travel for the purpose of being examined.] 
 
 The referee is rec[uested to forward his certificate to the Registrar at the 
 County Court Office situate at 
 
 on or before the day of , specifying 
 
 therein the nature of the incapacity of the said resulting 
 
 from the injury, and whether such incapacity is likely to be of a permanent 
 nature. 
 
 Dated this day of 
 
 Judge [or Registrar]. 
 
 Form 58a. 
 
 [To be printed on thick blue foolscap.] 
 
 Certificate of Identity. 
 
 [to be cahefuelt pbbbebvbd.] 
 
 Notice. — This Obetipicatb is no secubity whatbveb foe a Debt. 
 
 No. of Certificate 
 In the County Court of holden at 
 
 [Heading as in Award, Memorandum, or Certificate.'] 
 ■ This is to certify that A.B. late of {address and description) 
 
 is entitled to a weekly payment of from (name and address of 
 
 employer) 
 
 as compensation payable to the said A.B. in respect of personal 
 
 injury caused to him by accident arising out of and in the course of his 
 employment, such weekly payment to continue during the total or partial 
 incapacity of the said A.B. for work : 
 
 And that the description of the said A.B. and his incapacity for 
 
 work, as certified by the medical referee appointed in this matter, are as 
 follows : — 
 Age, 
 Height, 
 
 Hair, Eyes, 
 
 Nature of incapacity, 
 [Describe nature of incapacity, as in certificate of medical referee.] 
 
 Dated this day of 
 
 Registrar. 
 
846 Appendix 
 
 STATUTOEY EULES AND OEDEES, 1907, 
 No. 460, L. 13. 
 
 COUNTY COURT, ENGLAND. 
 
 Fees. 
 
 Treasury Order, dated May 30, 1907, regulating Fees in County 
 Courts. 
 
 In pursuance of the powers given by the County Courts Act, 1888, 
 and of all other powers enabling us in this behalf, We the undersigned, 
 beiag two of the Commissioners of His Majesty's Treasury, whose 
 names are hereunto subscribed, do hereby, with the consent of the 
 Lord Chancellor, order that on and after the 1st day of Jjily, 1907, 
 the following alterations in the Treasury Order regulating fees in 
 County Courts, dated the 30th day of December, 1903, shall have 
 efEect. 
 
 Joseph A. Pease, 
 J. Herbert Lewis. 
 
 I approve of this Oi'der. 
 
 Lorehum, C. 
 
 Schedule A. 
 
 Paragraph 46 is hereby annulled, and the following paragraph 
 shall stand in lieu thereof. 
 
 Conf. Act. 46. — (a) No court fee shall be payable under this Schedule by any 
 
 par. 13. ' party in respect of any proceedings by or against a workman under 
 
 the Workmen's Compensation Act, 1906, or the Workmen's Com- 
 pensation Rules, 1907, in the County Court prior to the award. 
 
 (&) On an application for the settlement of any matter by arbitra- 
 tion under the said Act and Rules, when such application is not a 
 proceeding by or against a workman, plaint and hearing fees shall be 
 payable as in an ordinary action, and the poundage shall be calcxdated 
 as upon a claim for a sum of twenty pounds. 
 
 (c) Where a notice of claim to contribution or indemnity is filed 
 under the said Act and Rules, a fee shall be paid on an awai"d on such 
 claim, or on the hearing of such claim, in like manner as on entering 
 
County Court Fees 847 
 
 judgment on a default stunmons under paragraph S, or the hearing of 
 an action, as the case may be. 
 
 (d) In proceedings under the said Act and Rules for the enforce- 
 ment of an award, memorandum, or certificate, or an order for pay- 
 ment of costs, the same fees shall be taken as on the like proceedings 
 for the enforcement of a judgment for the like amount given in an 
 action, less, in any case in which fees for the issue service or execution 
 of any process are prescribed by Schedule B, the amount of such fees. 
 
 (e) On interpleader proceedings arising out of an execution issued 
 for the enforcement of an award, memorandum, or certificate or an 
 order for payment of costs under the said Act and Rules, fees shall 
 be paid in like manner as an interpleader proceedings arising out of 
 an execution issued in an action. 
 
 Schedule B. — Part I. 
 
 General. 
 
 Registbau's Fees. 
 
 The words " The "Workmen's Compensation Act, 1906, and the 
 Workmen's Compensation Rules, 1907," shall be substituted for the 
 words " The Workmen's Compensation Acts, 1897 and 1900, or 
 the Workmen's Compensation Rules, 1898 to 1900," in paragraphs 
 8 and 9. 
 
 Paragraph 26 is hereby annulled, and the following paragraph 
 shall stand in lieu thereof. 
 
 26. On proceedings under the Workmen's Compensation Act, 
 1906, and the Workmen's Compensation Rules, 1907. 
 
 (N.B. — These fees with the exception of Nos. 6 and 7 are not to be 
 taken in respect of proceedings hy or against a wwJtman prior to the 
 award.) 
 
 £ s. d. 
 
 1. On the filing of a special case under Rule 32 ... 5 
 
 2. On an order for the detention of a ship, an order of 
 
 release, a bail bond, or an affidavit of justification, 
 under the Workmen's Compensation Act, 1906, or 
 the Shipowners' Negligence (Remedies) Act, 1905 7 6 
 
 3. On an order adding a respondent under Rule 39 (4) 4 
 
 4. On an application to rectify the register or to remove 
 
 a record from the register under Schedule 2, par. 9 
 
 (c) or (e), and Rule 48 or Rule 50 4 
 
848 Appendix 
 
 £ s. d. 
 6. For preparing a Certificate under Section 1, Sub- 
 section 4 and Rule 51 ... 5 0. 
 
 6. On an application for a reference to a medical referee 
 
 under Schedule 1, paragraph 15, the fee prescribed 
 by Rule 54 (9) 
 
 7. On a reference to a medical referee in accordance 
 
 with regulations made by the Secretary of State 
 pursuant to Section 8 (1) (/) 10 
 
 8. On an application for the suspension of the right to 
 
 compensation or to take proceedings, or of the 
 rigjit to weekly payments, under Schedule 1, 
 pars. 4, 14 or 15, and Rule 55 4 
 
 9. On an application for investment, etc., under 
 
 Schedule 1, par. 5, and Rule 56 (8) or Rule 59 ... 4 
 
 10. On an application for the payment of weekly pay- 
 
 ments into Court under Schedule 1, par. 7, and 
 
 Rule 57 (3) 4 
 
 11. On an application for the variation of an Order under 
 
 Schedule 1, par. 9, and Rule 58 4 
 
 12. Tor every investment made by a registrar, including 
 
 the payment out or application of a sum allotted 
 to any person by weekly or other periodical pay- 
 ments (charged once only, and to be deducted from 
 the sum ordered to be invested or allotted). For 
 every £10, or part of £10, invested, but so that the 
 total fee shall not exceed 50s. ... ... ... 5 
 
 13. On an application for a reference to a medical referee 
 
 under Schedule 1, par. 18, and Rule 60 4 
 
 14. For a certificate of identity under Rule 60 (6) (c) ... 5 
 
 15. For receiving and forwarding any sum due to a 
 
 workman residing out of the United Kingdom 
 under Rule 60 (13) to be deducted from the sum 
 to be forwarded) 5 
 
 16. For every taxation of the costs of an award, or 
 
 between third parties and other parties to an 
 arbitration 10 
 
 17. For every other taxation of costs 5 
 
 18. On an application to the judge under Rule 65 (3 to 5) 
 
 at a date subsequent to the hearing of the 
 arbitration 4 
 
County Court Fees 849 
 
 £ s. d 
 
 19. On an application to the judge under Rule 66 (e) 
 
 other than an application for an order for execution 
 
 to issue 4 
 
 20. For examining every affidavit in support of an appli- 
 
 cation for issue of execution or a judgment 
 summons under Rules 67 (2) or 68 (2) 1 6 
 
 21. On an application to set aside or vary an award or 
 
 order under Rtile 70 4 
 
 22. For every Office copy or certified copy of documents 
 
 filed or records made in reference to any matter, 
 
 per folio 4 
 
 23. For every sitting under Rule 35 10 
 
 24. On any other proceeding not herein specified, for 
 
 which if such proceeding were taken in an action, 
 a fee would he payable, the fee which would he 
 payable if such proceeding were taken in an action. 
 
 High Bailiff's Fees. 
 
 The words "the Workmen's Compensation Act, 1906, and the 
 Workmen's Compensation Rules, 1907," shall be substituted for the 
 words "the Workmen's Compensation Acts, 1897 and 1900, or 
 the Workmen's Compensation Rules, 1898 to 1900," in paragraphs 41 
 and 42. 
 
 42a. Where the high bailiff is directed to detain a ship under the 
 Workmen's Compensation Act, 1906, or the Shipowners' Negligence 
 (Remedies) Act, 1905, the same fees for execution of the order for 
 detention and for keeping possession of the vessel as for executing a 
 warrant of arrest and keeping possession of a vessel in an Admiralty 
 action where the amount claimed exceeds £100, being part of the costs, 
 charges and expenses attending the custody of the ship (Rule 37 (8) ). 
 
 42b. On any proceeding under the Workmen's Compensation 
 Act, 1906, and the Workmen's Compensation Rules, 1907, not herein 
 specified (not being a proceeding by or against a workman prior to 
 the award) for which, if such proceeding were taken in an action a fee 
 would be payable, the fee which would be payable if such proceeding 
 were taken in an action. 
 
850 Appendix 
 
 STATUTOEY EULES AND OEDEES, 1907. 
 
 No. 407. 
 
 MASTER AND SERVANT. 
 
 Workmen's Compensation. 
 
 Industrial Diseases. 
 
 Order of tlie Seeretai-y of State, dated May 22, 1907, extending the 
 provisions of the Workmen's Compensation Act, 1906, to certain 
 Industrial Diseases. 
 
 Whereas by section 8 of the Workmen's Compensation Act, 1906, 
 the provisions of that Act are applied, ui certain oases and subject to 
 certain, modifications, to workmen disabled by, or suspended from their 
 usual employment on account of their having contracted, a disease 
 mentioned in the Third Schedule to the Act ; 
 
 And whereas it is enacted by sub-section (2) of the said section 
 that if the workman at or immediately before the date of his disable- 
 ment or suspension was employed in a process mentioned in the second 
 column of the Third Schedule to the Act, and the disease contracted is 
 the disease in the first column of that Schedule set opposite the 
 description of the process, then the disease shall be deemed, except as 
 otherwise provided in the sub-section, to have been due to the nature 
 of that employment unless the employer proves the contrary ; 
 
 And whereas sub-section (6) of the same section empowers the 
 Secretary of State to make Orders for extending the provisions of that 
 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 ; 
 
 Now I, the Right Honourable Herbert John Gladstone, one of His 
 Majesty's Principal Secretaries of State, by this Order made under 
 sub-section (6) of the said section, do hereby direct that the provisions 
 of section 8 of the Workmen's Compensation Act, 1906, shall extend 
 and apply to the diseases, injuries, and processes, specified in the first 
 and second columns of the Schedule annexed to this Order, as if the 
 said diseases and injuries were included in the first column of the 
 
Order extending Provisions as to Industrial Diseases 851 
 
 Third Schedvile to the Act and as if the said processes were set 
 opposite in the second column of that Schedule to the diseases or 
 injuries to which they are set opposite in the second column of the 
 Schedule annexed hereto. 
 
 -ff. /. Gladstone, 
 One of His Majesty's Principal 
 Secretaries of State. 
 WhitehaU, 
 
 May 22nd, 1907. 
 
 Schedule. 
 
 Description of Disease or Injury. 
 
 Description of Process. 
 
 1. Poisoning by nitro- and amido- 
 
 derivatives of benzene (dinitro- 
 benzol, anilin, and others), or 
 its sequelse. 
 
 2. Poisoning by carbon bisulphide 
 
 or its sequelae. 
 
 3. Poisoning by nitrous fumes or 
 
 its sequelae. 
 
 4. Poisoning by nickel carbonyl or 
 
 its sequelae. 
 
 5. Arsenic poisoning or its sequelae. 
 
 6. Lead poisoning or its sequelse. 
 
 7. Poisoning by Gonioma Kamassi 
 
 (African boxwood) or its 
 sequelae. 
 
 8. Chrome ulceration or its sequelae 
 
 9. Eczematous ulceration of the 
 skin produced by dust or 
 caustic or corrosive liquids, or 
 ulceration of the mucous mem- 
 brane of the nose or mouth 
 produced by dust. 
 
 10. Epitheliomatous cancer or ulce- 
 
 ration of the skin or of the 
 corneal surface of the eye, due 
 to pitch, tar, or tarry com- 
 pounds. 
 
 11. Scrotal epithelioma (chimney- 
 
 sweeps' cancer). 
 
 12. Nystagmus 
 
 Any process involving the use of a 
 nitro- or amido-derivative of ben- 
 zene or its preparations or com- 
 pounds. 
 
 Any process involving the use of 
 carbon bisulphide or its prepara- 
 tions or compounds. 
 
 Any process in which nitrous fumes 
 are evolved. 
 
 Any process in which nickel carbonyl 
 gas is evolved. 
 
 Handling of arsenic or its prepara- 
 tions or compounds. 
 
 Handling of lead or its preparations 
 or compounds. 
 
 Any process in the manufacture of 
 articles from Gonioma Kamassi 
 (African boxwood). 
 
 Any process involving the use of 
 chromic acid or bi-chromate of 
 ammonium, potassium, or sodium, 
 or their preparations. 
 
 Handling or use of pitch, tar, or 
 tarry compounds. 
 
 Chimney-sweeping. 
 Mining. 
 
852 
 
 Appendix 
 
 Description of Disease or Injury. 
 
 Description of Process. 
 
 13. Glanders ... 
 
 14. Compressed air illness or its 
 
 sequelse. 
 
 15. Subcutaneous cellulitis of the 
 
 hand (beat hand). 
 
 16. Subcutaneous cellulitis over the 
 
 patella (miners' beat knee). 
 
 17. Acute bursitis over the elbow 
 
 (miners' beat elbow), 
 
 18. Inflammation of the synovial 
 
 lining of the wrist joint and 
 tendon sheaths. 
 
 Care of any equine animal suffering 
 from glanders ; handling the car- 
 case of such aiiimal. 
 
 Any process carried on in com- 
 pressed air. 
 
 Mining. 
 
 Mining. 
 Mining. 
 Mining. 
 
 STATUTOEY RULES AND OEDERS, 1907. 
 
 No. 484. 
 
 MASTER AND SERVANT. 
 Workmen's Compensation Act, 1906. 
 
 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 Glaolstone, one of His 
 Majesty's Principal Secretaries of State, and We, the Lords Com- 
 missioners of His Majesty's Treasm-y, in pursuance of the powers 
 respectively conferred on us by the Workmen's Compensation Act, 
 1906, section 8, sub-sections (1) (f), (3) and (6), 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. 
 
Regulations as to Medical Referees 853 
 
 (iii) " Certifying' Surgeon" means either the certifying surgeon 
 mentioned in sub-seotion (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. 
 (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 certify- 
 ing surgeon, on payment of the prescribed fee, and after obtaining the 
 particulars specified in the schedule to these regulations and such Foim i. 
 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. ^°"° ^• 
 
 3. After personally examining the workman, thecertifying 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 Forms 3 and 5. 
 schedule to these regulations. 
 
 4. Where, in pursuance of any special rules or regulations made 
 under the Tactory 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 
 
854 
 
 Appendix 
 
 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 
 contracted 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 
 Forms 6 and 8. schedule to these regulations, and shall deliver such certificate to the 
 applicant. 
 
 5. Where a certificate of disablement is given or a workman is 
 suspended, 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 ia which at 
 or immediately before the date of the disablement or suspension 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 employer and on 
 
 See Forms 4 and payment of the prescribed fee ; and in either case shall follow the form 
 prescribed in the schedule to these regulations. 
 
 Eor 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 ujider 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. ; 
 
Regulations as to Medical Referees 855 
 
 (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 req[uired 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 work- 
 man is made in pursuance of any special rules or regula- 
 tions 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 hy the Employer. 
 
 (iv) For any certificate of suspension or refusal to suspend, obtained 
 by the employer under regulation 4, a fee of Is. 
 
 (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 surg eon in giving or refusing to give a 
 certificate 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 aooompanied 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 disable- 
 ment or suspension, 
 
856 
 
 Appendix 
 
 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. 
 
 Forms 9 and 10, 9. (o) Any application under the foregoing regulation shall be 
 
 made in writing, and shall state the grounds on which the reference 
 is asked for, in accordance with the form prescribed in the schedule 
 to these regulations, or as near thereto as may be. 
 
 (6) 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 sus- 
 pension 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 appUoation 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. 
 
 (i) 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 forward 
 to such medical referee by registered post one of the copies of the 
 application and the other documents filed therewith, with an order of 
 Form 11. reference according to the form prescribed in the schedule. 
 
 Form 12. 11. 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 
 
Regulations as to Medical Referees 857 
 
 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 workman, on heing served 
 with the order, to submit himsett 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 ciroviit 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 Secretary 
 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 authorized 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 reqxdred 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 work- 
 man, and, if the employer is the applicant, of the employer or a person Forms is and u. 
 duly authorized by him, to attend at the time and place fixed by the 
 
 medical referee, and in the event of failure on the part of the workman 
 or employer or both to appear as required by this regulation, the 
 medical referee shall decide on the matter referred to him forthwith 
 upon such information as shall be available and with or without a 
 personal examination. Provided that where the absence of the em- 
 ployer or Ms representative or of the workman is shown to the satis- 
 faction of the medical referee to be unavoidable, or where the medical 
 referee considers it necessary to apply for expert assistance as herein- 
 after provided, it shaU 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 aU parties concerned, 
 
 B.E.L. ^ ^ 
 
858 Appendix 
 
 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 statements made 
 or submitted by either party. 
 
 Form 15. 16. The medical referee shall, in the form prescribed in the 
 
 schedule to these regulations (subject to such additions and modifi- 
 cations as the circumstances of the case may require) notify in writing 
 his decision to the registrar of the comity court, to the applicant and 
 to the respondent. 
 
 Form 16. 17. The medical referee shall send to the Home Office at the end 
 
 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, ia 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. 
 
 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. 
 
 Form 17. 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 as to Medical Beferees 859 
 
 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. 
 
 (Porm: 1.) 
 
 Pmiidilars to be obtained by Certifying Szi/rgetm upon application by Work- 
 man far Certificate of Disablement. 
 
 1. Name and adress of workman 
 
 2. Disease in respect of which certifi-\ 
 
 oate is applied for / 
 
 3. Symptoms complained of 
 
 4. Employment to the nature of which\ 
 
 disease is attributed / 
 
 5. Name and place of business of em-j 
 
 ployer who last employed workman > 
 in such employment ) 
 
 6. (Where application is not made by 
 
 workman in person) whether work- 
 man is able to travel for piu'poses 
 of examination 
 
 (FOEM 2.) 
 
 NoUee to Workman of time and place appointed for his ExammaUon 
 by Swrgeon. 
 
 Workmen's Compensation Act, 1906. 
 
 I hereby give you notice, with reference to your application for a certifi- 
 cate 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) 
 
860 
 
 Appendix 
 
 (Form 3.) 
 Certificate of Disablement. 
 
 (o) strike out 
 portion of de- 
 scription inap- 
 plicable. 
 
 (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 schedule. 
 
 Workmen's Com/penaaiion 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 sections of the Act), hereby certify that having 
 personally examined (6) on the day of 
 
 I am satisfied that (c) is suffering 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 imme-l 
 diately before the date of disable- 1 
 ment ; 
 
 3. Name and place of business of em-^ 
 
 ployer stated by workman to have I 
 last employed him in process above- 1 
 mentioned ) 
 
 4. Leading symptoms of disease 
 Dated this day of 
 
 (Signed) 
 
 (a) name pro- 
 cess. 
 
 (b) " mentioned 
 in" or "added by 
 an Order of the 
 Secretary of State 
 to." 
 
 (c) name dis- 
 ease. 
 
 (d) " in the first 
 column of that 
 schedule " or 
 " under the pro- 
 visions of the 
 said Order." 
 
 (FOEM 4.) 
 
 Certificate {supplementary to a Certificate of Disablement) to be given by 
 Certifyimg Surgeon in circumstances mentioned in BegulaOon 5. 
 
 1. When the certificate is included in the certificate of disablement, it 
 should run as follows : — 
 
 But whereas the said workman appears to have been employed at or 
 immediately before the date of disablement 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) 
 
 (e) strike out 
 portion of de- 
 scription inap- 
 plicable. 
 
 C/J name of 
 workman. 
 
 2. When the certificate is given separately on a subseqicent application of 
 the employer, it should be in the following form ; — 
 
 Workmen's Compensation Act, 1906. 
 Whereas I, (e) the certifying surgeon appointed under the Factory and 
 Workshop Act, 1901, for the district of (or as a medical practi- 
 
 tioner 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-named Act), 
 on the day of certified that (/) was suffering 
 
 • If the surgeon is unable to certify a date on which the disablement commenced, he 
 should strike out this part of the certificate. In that case the disablement will be deemed ta 
 have commenced on the date on which this certificate is given. See section 8 (4) of the Act. 
 
Regulations as to Medical Referees 861 
 
 from {g) being a disease to which the Workmen's Oompenaation (jr) name dis- 
 
 Aot applies, and was thereby disabled from earning full wages at the work ^'■^- ^^^^ _ 
 at which he was employed; and whereas the said (/) appears to ^ggg-* 
 
 have been employed at or immediately before the date of disablement in (Ji) (i) ••mentioned 
 being a process (i) the second column of in " ov " added by 
 
 the third schedule to the Act, and the disease above-named is a disease georetowof State 
 which (h) is set opposite the above-mentioned ^n 
 
 process, I hereby certify that, in my opinion, the said disease was not due (K) "inthearst 
 to the nature of such employment. column of that 
 
 '^ ■' schedule" or 
 
 Dated this day of . •• under the pro- 
 
 iai,*^^A\ visions of the 
 
 (Signed) . said Order." 
 
 (FOBM 5.) 
 Certificate of Certifying Surgeon refusing to give Certificate of Disablement. 
 
 Worlcmen's Compensation Act, 1906. 
 I, (a) as certifying surgeon appointed under the Factory and Workshop po^tj'on'ofde-"' 
 Act, 1901, for the district of {or as a medical practitioner appointed soription inap- 
 
 by the Secretary of State to have the powers and duties of a certifying piicable. 
 surgeon for the purposes of section 8 of the above Act), hereby certify that W name work- 
 having personally examined (6) who has applied for a Certificate ™^°^ describe 
 of Disablement in respect of (c) being a disease to which the disease. 
 Workmen's Compensation Act applies, I am not satisfied that (d) is ^^ (d) "he " or 
 sufiering 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 of which! 
 
 disease complained of was attri-> 
 buted I 
 
 3. Name and place of business of em-j 
 
 ployer stated by workman to have I 
 last employed him in such employ- j 
 
 ment J 
 
 Dated this day of 
 
 (Signed) 
 
 (Form 6.) 
 Certificate of Suspension by Certifying or Appointed Surgeon. 
 
 Workmen's Compensation Act, 1906. A'^), '^ certify- 
 
 I the (a) surgeon for (6) "appointed." 
 
 hereby certify that after personally examining (c) , I have on ^^^^-'^ *"^^t- 
 
 the day of in pursuance of the (d) _ made under „„„ ,3 g^ploy;,^ 
 
 the Factory and Workshop Act, 1901, suspended the said (c) from (c) name worli- 
 
 le) usual employment on account of (e) having man. 
 contracted (/) being a disease to which the Workmen's spSiauSeVor 
 
 Compensation Act applies. regulations go- 
 
 1. Full name and address of work-l pt^ment.^*™ 
 
 man ... ... ... ... ■■./ (e)"his"or 
 
 2. Employment from which workman I "r?s"d 
 
 is suspended / disease. " 
 
862 
 
 3. Name and place of business of em-\ 
 
 ployer / 
 
 i. Leading symptoms of disease 
 
 Dated this 
 
 day of 
 (Signed) 
 
 (a) name pro- 
 cess. 
 
 (6) "men- 
 tioned in " or ■ 
 ** added by an 
 Order of the 
 Secretary of 
 State to." 
 
 (c) name 
 
 (ij) " in the 
 first column of 
 that schedule " 
 or *• under the 
 provisions of the 
 said Order.* 
 
 (FOBM 7.) 
 
 to be given by Swrgeon m cases of suspension 
 mentioned in Begulation 5. 
 
 in circumstcmces 
 
 1. When the certiflcate 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 (6) 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) 
 
 (o) "certify- 
 ing " or 
 " appointed." 
 
 (0) name 
 works at which 
 workman was 
 employed. 
 
 (c) name 
 special rules or 
 regulations 
 governing the 
 employment. 
 
 (a) name of 
 workman. 
 
 (e) "his" or 
 "her." 
 
 (/) describe 
 disease. 
 
 (fif) name pro- 
 cess. 
 
 (A) "men- 
 tioned in " or 
 " added by an 
 Order of the 
 Secretary of 
 State to." 
 
 (i) "in the 
 first colnmn of 
 that schedule" 
 or " under the 
 provisions of the 
 said Order." 
 
 2. When the certiflcate is given separately on an application by the 
 employer, it should be in the following form : — 
 
 Workman's Compensation Act, 1906. 
 
 Whereas I, the (a) surgeon for (6) 
 
 the day of in pursuance of the (c) 
 
 the Factory and Workshop Act, 1901, suspended (d) 
 
 on 
 made under 
 from (e) 
 
 having 
 
 usual employment on account of (e) 
 
 contracted (/) being a disease to which the Workmen's 
 
 Compensation Act applies, and whereas the said (d) appears to 
 
 have been employed at 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) 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 employment. 
 
 Dated this 
 
 day of 
 
 (Signed) 
 
Regulations as to Medical Referees 
 
 863 
 
 (FOBM 8.) 
 
 Certificate by Certifying or Appointed Surgeon of Refusal to suspend. 
 
 Workmen's Compensation Act, 1906. 
 I, the (a) surgeon for (6) 
 
 hereby certify that (c) haying applied to me to be 
 
 suspended from Ms 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 
 (") refused to suspend (g) 
 
 1. Full name and address of work- 
 man 
 
 ;k-\ 
 
 2. Name and place of business of em-\ 
 
 ployer / 
 
 3. Grounds for refusal to suspend 
 Dated this day of 
 
 (Signed) 
 
 (a) "certify 
 ing"or 
 "appointed." 
 
 (b) name 
 worlcB at wliich 
 workman is 
 employed. 
 
 (c) name 
 workman. 
 
 (d) name the 
 code of special 
 rules or regula- 
 tions gorerning 
 the employment. 
 
 (e) " his " or 
 "her." 
 
 (/) describe 
 disease. 
 
 (jT) "him" or 
 "her." 
 
 (FoBM 9.) 
 Application by Employer for Beference 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 (wame aaid address of worltmhn) 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 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 
 
 imder the provisions of the said Act. 
 
 2. That the said notice was consequent on a certificate of disablement 
 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 tmder 
 
 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 
 
864 Appendix 
 
 of whioli the said order was made) (or, in the case of a certificate of disable- 
 ment, was not suffering from the disease therein specified so as to be dis- 
 abled from earning full wages at the work at which he was employed), in 
 * State grounds support of which claim he mentions the following circumstances : — (*) 
 forclaim.e.^,, re- 
 port of any doctor 
 employed by ap- 
 plicant. 
 
 And the applicant hereby undertakes, if the matter is referred to a 
 medical referee, to repay to the said {workman) any reasonable 
 
 travelling expenses he may iucur in attending for examination 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) 
 
 To the Begistrar. 
 
 (FOEM 10.) 
 Ajoplication by Workman for Reference to Medical Eeferee. 
 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 a/ppUcant) 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 ymder Factory Act) at • {ncrnie 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. ■ 
 
Begulations as to Medical Referees 865 
 
 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 sufEering from the said disease, and was thereby 
 disabled from earning full wages at the work at which he was employed 
 (or m 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 regu- 
 lations) 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 
 mentions the following circumstances : — (*) * State grounds 
 
 ol claim, e.g., re- 
 port, if any, of 
 doctor employed 
 by applicant. 
 
 4. That the employer on whom the applicant, if the matter is referred to 
 a medical referee and decided in favour of the applicant, 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) 
 
 To the Registrar. 
 
 (Poem 11.) 
 
 Order of Beference to Medical Referee. 
 
 In the County Court of holden at 
 
 (Seadmg 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 aimexed. 
 
 • Or, if the workman is the appUcant, 
 
 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 appli- 
 cant 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. 
 
866 Appendix 
 
 (Poem 12.) 
 Order on Workman to submit himself for Examination by MedAcal Referee. 
 In the County Court of holden at 
 
 \Hea3Mig as in AppUcation.2 
 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 recLuired 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 
 
 (POBM 13.) 
 Notice by Medical Referee to Workmwn. 
 
 Workmen's Compensation Act, 1906. 
 
 I hereby give you notice that I have received from the Begistrar of the 
 County Court at , an order of reference appointing me to 
 
 decide on your appeal against the action of Mr. (name ofsv/rgeon) 
 
 in refusing to give you a certificate of disablement (or to suspend you). 
 
 Or, if the envployer is the a/ppellcmt, 
 on the appeal made by (name of employer) against the action of 
 
 Mr. (^ame of surgeon) in giving you a certificate of disablement 
 
 (or in suspending you) ; 
 
 And that you are required to attend (or, if the workmam has been ascer- 
 tained not to be in a fit condition to travel, to submit yourself) for examina- 
 tion at on the day of at o'clock. 
 
 Any statement made or submitted by you shall be considered. 
 
 (Signed) 
 
 Medical Referee. 
 To 
 
 (Poem 14.) 
 Notice by Medical Referee to Employer. 
 
 Workmen's Compensation Act, 1906. 
 
 I hereby give you notice that I have received from the Kegistrar 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) (mawe of 
 
 workman). ' 
 
Begulations as to Medical Beferees 867 
 
 Or, if the workman is the appellant, 
 on the appeal made by {nwme 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 (na/me of workman) at 
 
 on the day of at o'clock. 
 
 Any statement made or submitted by you shall be considered. 
 Add, if the em/ployer is the appellant, 
 
 You, or some person duly authorized by you, are hereby required to 
 attend at the above time and place. 
 
 Dated this day of 
 
 (Signed) 
 
 Medical Beferee. 
 
 To 
 
 (Form 15.) 
 Decision of Medical Beferee, 
 
 {Heading a^ in application.) 
 I hereby give you notice that having duly inc|.uired 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 workmam) on the 
 
 day of 
 
 or 
 I dismiss (or aUow) the appeal of (»Mime of employer) against the 
 
 suspension of (nameof workman) on ih.& day ot 
 
 or 
 I dismiss the appeal of (name of workman) against the refusal of 
 
 Mr. (name of swrgeon) to give him a certificate of disablement 
 
 in respect of (name of disease). 
 
 or 
 1 allow the anneal of (name of workman) against the refusal 
 
 fallow -PP^^f ) ti give him a certmc-*« ot disablemen 
 
 in respect of (nameofd^sease),a,niI&^th.e day of 
 
 m respeoii ^^ ^^^ ^^^ on which the disablement commenced, 
 
 or 
 I dismiss (or allow) the appeal of {name of workman) against 
 
 therefuXf^Mr («.^f 0/ swr^ecm) to suspend him on the day of 
 
 Dated this day of 
 
 (Signed) 
 
 Medical Beferee. 
 
 To (the Begistrar), 
 and to (the Employer), 
 and to (the Workman). 
 
868 
 
 Appendix 
 
 (FOBM 16.) 
 
 Medkal Referee's Statement of Fees m respect of References under section 8 
 of the Workmen's Compensation Act, 1906. 
 
 1 
 
 Names of 
 Parties. 
 
 Date on 
 
 wliich 
 
 Reference 
 
 received. 
 
 Registrar 
 from 
 whom 
 
 received. 
 
 Date and 
 Place of 
 EKaml- 
 nation. 
 
 Date and 
 Terms of 
 Decision. 
 
 Amount of Fees under each 
 of the headings in Regu- 
 lation 18. 
 
 a 
 
 (i) 
 
 (ii) 
 
 (lU) 
 
 1. 
 
 •i. 
 
 
 
 
 
 
 £ B. d. 
 
 f s. d. 
 
 £ «. d. 
 
 
 
 
 
 Total £ 
 
 I hereby certify that I examined the workman 
 on , at , which is distant 
 
 residence or prescribed centre. 
 
 (Signed) 
 
 miles from my 
 
 Medical Referee. 
 
 (FOBM 17.) 
 
 Record of References to he kept by Registrar. 
 
 For quarter ended. 
 
 Number 
 
 of 
 Eefercnce. 
 
 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 
 Medical 
 Referee. 
 
RegulatioTis as to Medical Referees 
 
 STATUTOEY EULES AND OEDEES, 1907. 
 No. 487. 
 
 MASTER AND SERVANT. 
 Workmen's Compensation Act, 1906. 
 
 Begulations, dated June 24, 1907, made hy the Secretary of State and 
 the Treasury as to the duties and Remuneration of Medical 
 Beferees in England and Wales under the provisions of the First 
 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 Regulations. 
 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 regTilations 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 para- 
 graph (15) of the first schedule to the Workmen's Com- 
 pensation 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 workman 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 
 injttry is likely to be of a permanent nature. 
 
870 Appendix 
 
 (e) 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. 
 
 " 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) " Jndge " means County Court Judge. 
 
 (vii) The words " district in which the case arises " mean the 
 county court district in which aU the parties concerned 
 reside, or, if they reside in difEerent 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. 
 
 Forms I, J, K, 4 The medical referee shall send to the Home Oflce at the end of 
 
 each quarter statements, in the forms "prescribed in the schedule to 
 these regulations, of the fees due to him for the quarter under these 
 regulations. 
 
 6. In oases where a claim is made under the reg^ulations in respect 
 of travelling expenses, the medical referee, in submitting his quarterly 
 
Regulations as to Medical Referees 871 
 
 statements under regxdation 4, shall certify the distance of 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 M. 
 form prescribed in the schedule, of aU references made xmder these 
 regulations, and of aU 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 II. — Regulations as to References under Schedule I., 
 pa/ragraph (15). 
 
 9. The medical referee shall, on receipt of a reference duly signed 
 and sealed, fix a time and place for the examination of the workman, 
 and shall send notice accordingly to bo'th the parties signing the 
 application on which the reference is made. 
 
 10. Before giving the certificate required by the reference, the Forms A and B. 
 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 ^o^'^ C. 
 to the form prescribed in the schedule to these regulations. 
 
 12. The medical referee shall forward his certificate to the registrar 
 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. 
 
872 Appendix 
 
 (iii) Where in order to examine the injured 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 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. 
 
 Part III. — Regulations as to References under Schedule I., 
 pa/ragra/ph (18). 
 
 F<"™ I)- 14. The medical referee shall, on receipt of a reference duly 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 req[mred by the reference the 
 medical referee shall make a personal examination of the workman. 
 
 Fonn E. 16. The certificate given by the medical referee shall be according 
 
 to the form prescribed in the schedule to these regulations. 
 
 17. The medical referee shall forward Ms certificate to the registrar 
 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 Remv/neration of Medical Referee for 
 sitting as Assessor vmder Schedmle II., paragraph (S). 
 
 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 Com- 
 pensation 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 mUes 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 Ss. 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. 
 
Regulations as to Medical Beferees 873 
 
 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 insuflS.cient on 
 some matter which seems material to a question arising in the arbi- 
 tration, 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 made iu writing and shall state the 
 matter on which the report of the medical referee is required, and the 
 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 
 maybe. 
 
 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, 
 arbitrator or judge shall make an order in the form prescribed in the Form G. 
 schedule, directing the injured workman to submit himself for examina- 
 tion 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 tha,t he is in a fit condition, they shall by 
 
 the same order direct biTin 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. 
 
 B.E.L. 3 L 
 
874 Appendix 
 
 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 Begistrar: 
 
 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 amendment ; 
 (6) Shall insert the name of the medical referee proper to be 
 
 appointed ; 
 (c) Shall, when the reference is in accordance with these regula- 
 tions, coimtersign and seal it, and forward it forthwith to 
 the medical referee. 
 (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 regristrar, on receiving a report from a medical referee 
 under Regulation 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 amy party 
 furnish him with a copy of the report or allow him to take a copy 
 thereof. 
 
 Report of Medical Referee. 
 Form H. 27. The medical referee shall, on receipt of a reference duly signed 
 
 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 req^uest 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. 
 
Regulations as to Medical Beferees 87S 
 
 Fees. 
 30. The following shall be the scale of fees to be paid to the 
 medical referees in. respect of references imder this part of the 
 regulations : — 
 
 (i) For a first reference, to include examination 
 of the injured workman and written 
 report 2 guineas. 
 
 (ii) Tor a further statement under regulation 29 
 on any matter not covered by the original 
 reference 1 guinea. 
 
 (iii) For a second or subsec[uent reference to the 
 same referee in a further arbitration on 
 the same case, to include examination, if 
 necessary, and written report 1 guinea. 
 
 (iv) Where in order to examine the injured 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 fees — 6s. for each mile beyond two, and up to ten, 
 miles distant from such residence or pentre, and thereafter 
 Is. for each mile distant therefrom. 
 
 S. J. Gladstone, 
 
 One of His Majesty's Principal 
 
 Secretaries of State. 
 
 Joseph A. Pease, 
 J. S. Whitley, 
 Two of the Lords Commissioners of 
 His Majesty's Treasury. 
 24th June, 1907. 
 
 Schedule. 
 
 (FOBM A.) 
 
 Notice by Medical Meferee 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 Eeference made to 
 me by the Begistrar of the County Court of holden at , 
 
 under Schedule I., paragraph.(15), of the above-named Act, in the case of 
 
876 Appendix 
 
 (name and add/ress 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 soUcitor, by the employer), will be considered. 
 
 Dated this day of 
 
 (Signed) 
 
 Medical Referee. 
 
 (Poem B.) 
 
 Notice by Medical Beferee to Workma/n or Solicitor signing the a/ppUcation 
 on Workman's behalf (Schedule I. (15)). 
 
 Workmen's ComgensaUon Act, 1906. 
 
 To 
 
 I hereby give you notice that in accordance with the Eef erenoe made to 
 me in your case (or, if notice is addressed to the solicitor), in the case of 
 
 (nams and address of workman), by the Begistrar of the Comity 
 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) vrill be considered. 
 
 Dated this day of 
 
 (Signed) 
 
 Medical Beferee. 
 
 (FOBM C.) 
 
 Certificate of Medical Beferee as to condition of Workman and fitness for 
 empliyyment, or as to whether or to what extent incapacity of Workman 
 is due to the accident (Schedule I. (16)). 
 
 Workmen's Conyaensation 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 : — 
 
Begulations as to Medical Referees 877 
 
 1. The said is * * Deaoribe atata 
 
 of health. 
 
 and Us oondition is such that he is t t State whether 
 
 workman la fit 
 for hla ordioary 
 or other work, 
 Bpecifyfng where 
 neceasary the 
 kind of work, or 
 whether he ia 
 unfit for work of 
 any kind. 
 
 2. The incapacity of the said is t t state 
 
 whether or to 
 what extent the 
 incapacity ia dne 
 to the accident 
 (or, in cases 
 comiTig viitJiin 
 section 8 of the 
 Act, to the 
 dieeaee). 
 THoiE.— 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 Beferee. 
 
 (FOBM D.) 
 
 NoUce by Medical Beferee 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 ease 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 Beferee. 
 
 (FOBM E.) 
 CerUficate of Medical Beferee (Schedule I. (18)). 
 
 Workman'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 Say of examined 
 
878 
 
 Appendix 
 
 of (name and address of 
 
 workman) and I hereby certify that Ms incapacity is [or is not] likely to be 
 of a permanent nature. 
 
 Dated this day of 
 
 (Signed) 
 
 Medical Referee. 
 
 * Insert name 
 of injured 
 workman. 
 
 f Here state 
 the facts of the 
 accident as 
 ascertained from 
 the evidence. 
 
 f Name 
 disease. 
 
 (Poem P.) 
 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 
 
 and 
 
 Applicant, 
 
 CD. 
 
 ti 
 
 Address 
 
 DesoripiAon Respondent, 
 
 f (a) We, a committee 
 
 representative of and 
 
 his workmen, and empowered to arbitrate in the matter 
 arising under the Workmen's Compensation Act, between 
 As the A.B. and CD. ; 
 
 case may'^ (6) I, , an arbitrator agreed upon by 
 
 be A.B. and CD. to arbitrate in the matter arising between 
 
 them under the Workmen's Compensation Act, 1906 ; 
 I, , Judge of County Courts ; 
 
 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 con- 
 flicting (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 *■ 
 
 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 sus- 
 pended 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 — 
 
Begulations as to Medical Referees 879 
 
 (c) Such matter seems to be material to the following question arising in 
 the arbitration, viz. : — 
 
 We {or I) therefore appoint § § The name 
 
 one of the medical referees appointed by the Secretary of State for the "^ren"^ 
 
 purposes of the Workmen's Compensation Act, 1906, to examine the made by a corn- 
 said mittee or agieed 
 (or me) on the matter specified above, and to report to us. arbitrator, be 
 ' " 1 r left in blank to 
 
 A statement of the medical evidence given before us (or me) is appended, be inserted by 
 
 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 Eegistrar, 
 
 Comity Court Office, 
 on or before the day of 
 
 Dated this day of 
 
 (Signed) 
 
 II II For signa- 
 
 or On behalf of the Committee ture of judge or 
 
 Chawman-^ of Committee. 
 
 arbitrator. 
 
 Signature of Eegistrar and 
 Seal of Court. 
 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. 
 
 (Poem G.) 
 
 Order on injured Workman to submit Mmself for examination by Medical 
 
 Referee. 
 
 ' (Title as m Reference.) 
 
 To Address. 
 
 of DescirvpUon. 
 
 Take Notice — 
 
 That the Committee (or abitrator, 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 arbitra- 
 tion, 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 as may be * strike out 
 
 fixed by him. from " and to 
 
 „,,,,. J , attend" wben 
 
 Dated this day OI ^ injured work- 
 
 (To he signed in the same manner as Beference.) ^^ar'to be in 
 
 a fit condition 
 to travel. 
 
880 
 
 Ajppeindix 
 
 (POBM 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. 
 
 (FOBM I.) 
 
 Referee's Statement of Fees m respect of References imder 
 Schedule I. (15). 
 
 s 
 
 1 
 
 o 
 
 ID 
 
 1 
 
 iz; 
 
 S4 
 
 1^1 
 
 11 
 
 ■s . 
 si 
 11 
 1^ 
 
 II . 
 
 Whether Certifi- 
 cate as tn con- 
 dition of work- 
 man or as to 
 cause of inca- 
 pacity or both. 
 
 Amount of the fees 
 under each of the 
 headings in Regu- 
 lation 13. 
 
 h 
 
 
 (11 
 
 (ii) 
 
 (Hi) 
 
 
 
 
 
 
 
 
 £s. d. 
 
 £ s. <J. 
 
 £,s.d. 
 
 £s.d. 
 
 
 
 
 
 ^ 
 
 Total 
 
 i, s. d. 
 
 Endorsement 
 to be made on 
 back of 
 statement. 
 
 I hereby certify that I examined the above-mentioned 
 {name of workman) on at which is distant 
 
 miles from my residence or prescribed centre. 
 
 (Signed) 
 
Regulations as to Medical Referees 
 
 881 
 
 (Form J.) 
 
 Medical Beferee's Staternent of Fees in respect of References under 
 Schedule L (18). 
 
 Name of 
 Workman. 
 
 Date on 
 which 
 
 received. 
 
 Registrar 
 from 
 whom 
 
 received. 
 
 Date of 
 exami- 
 nation. 
 
 Date on 
 which 
 
 Certificate 
 Bent to 
 
 Registrar. 
 
 Whether 
 incapacity 
 
 certified 
 
 to be 
 
 permanent, 
 
 or not. 
 
 Fees 
 under 
 Regula- 
 tiou 18. 
 
 Payments 
 
 under 
 Regula- 
 tion 6. 
 
 £ s. d. 
 
 £ s. d. 
 
 Total . . £ s. d. 
 
 (FOBM K.) 
 
 Medical Beferee's Statement of Fees for attendances as Assessor under 
 Schedule II. (5). 
 
 
 Date on which 
 Summons' 
 received. 
 
 RcgiBtrar from 
 
 whom Summons 
 
 received. 
 
 Date and Piace 
 of Attendance. 
 
 Fees under Keguiation 19. 
 
 i 
 
 z; 
 
 For 
 attendance. 
 
 For miles 
 travelled. 
 
 
 
 
 
 t, s. i. 
 
 £ s. d. 
 
882 
 
 Appendix 
 
 (Poem L.) 
 
 Medical Referee's statement of Pees m respect of References wnder 
 Schedule II. (15). 
 
 1 
 
 =1 
 
 1 
 
 IS 
 
 i 
 
 is 
 
 * 
 
 II 
 
 n 
 
 Amount of Fees under 
 
 each of the headings in 
 
 Begulation 30. 
 
 .i 
 
 ^ 
 
 W 
 
 («) 
 
 (ii) 
 
 (iv) 
 
 1^' 
 
 
 
 
 
 
 * 
 
 £s. d. 
 
 f s. a. 
 
 fs.d. 
 
 £ s. «. 
 
 £s.d. 
 
 
 
 
 
 
 
 Total 
 
 £ s. d. 
 
 * Endorsement * •'• J^^reby certify that I examined the above-mentioned 
 to be made on (name of workmtm) on , at , whiob is distant 
 
 , back of miles from my residence or prescribed centre, 
 
 statement, ,„. 
 
 (Signed) 
 
 (FOBM M.) 
 Record of References, etc., to be kept hy Registrar. 
 County Court Circuit . District . Name of Registrar 
 
 For quarter ended 
 
 
 
 
 
 Provision 
 
 
 
 
 
 
 
 
 in the Act 
 
 
 
 
 
 
 
 Date on 
 
 under 
 
 Whether 
 
 
 Date and 
 
 
 
 
 which 
 
 which Be- 
 
 workman 
 
 
 number of 
 
 Number 
 
 Names 
 
 Work- 
 
 Beference 
 
 ference is 
 
 directed to 
 
 Medical 
 
 previous 
 Beference 
 
 ofEefer- 
 
 of 
 
 man's 
 
 forwarded 
 
 made, and 
 
 attend on 
 
 Beferee 
 
 enoe. 
 
 Parties. 
 
 Employ- 
 
 to 
 
 if under 
 
 Medical 
 
 appointed. 
 
 in same 
 
 
 
 zuent. 
 
 Medical 
 
 Sched. 11. 
 
 Eleferee, 
 
 
 
 
 
 
 Beferee. 
 
 (16), by, 
 whom 
 made.* 
 
 or not. 
 
 
 any. 
 
 cn 
 
 (2) 
 
 (3) 
 
 W 
 
 (6) 
 
 (6) 
 
 (») 
 
 (8) 
 
 
 
 
 
 
 
 
 
 * Here say whether committee, agreed arbitrator, county court judge, or appointed 
 arbitrator. 
 
 Note. — In cases where there is no References, but the Medical Beferee 
 is summoned to sit as assessor, the Registrar should write a note to that 
 efiect across columns 4, 5, and 6. 
 
Begulations as to Medical Examination 883 
 
 STATUTOEY EULES AND OEDEES, 1907. 
 
 No. 505. 
 
 MASTER AND SERVANT. 
 Workmen's Compensation Act, 1906. 
 
 Regulations of the Secretary of State, dated June 28, 1907, as to 
 examinations of a worhman hy a Medical Practitioner provided 
 and paid hy the Employer under the provisions of the First 
 Schedule to the WorTemen's Compensation Act, 1906. 
 
 In pursuance of the powers vested in me by paragraph (15) of the 
 Eirst Schedule to the "Workmen's Compensation Act, 1906, I, the 
 Right 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 himseK, 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 req[uired, 
 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. 
 
 S. J. Gladstone, 
 
 One of His Majesty's Principal 
 Secretaries of State. 
 Whitehall, 
 
 28th June, 1907. 
 
884 Appendix 
 
 STATUTORY EULES AND ORDERS, 1907. 
 
 No. 500. 
 
 MASTER AND SERVANT. 
 Workmen's Compensation Schemes. 
 
 Regulations, dated July 1, 1907, made by the Chief Begistrwr of 
 Friendly Societies under the Workmen's Compensation Act, 1906. 
 
 In pursuance of the powers vested in me by the above-mentioned 
 statute, I, James Duncan Stuart Sim, Chief Registrar of Friendly- 
 Societies, hereby make the following Regulations : — 
 
 1. Every application for certificate to a scheme under section 3 of 
 the Workmen's Compensation Act, 1906 (in these regulations termed 
 " the Act "), shall be in Form A annexed to these regrulations, and 
 shall be accompanied by the documents mentioned in such Form. If 
 a scheme includes the workmen of more than one employer a separate 
 application shall be made by each employer. 
 
 2. Every application for re-certiflcation, under section 15 of the 
 Act, of a scheme certified under the Workmen's Compensation Act, 
 1897, and in force on 1st July, 1907, shall be in Form C, and shall be 
 accompanied by the documents mentioned in such Form. If a scheme 
 includes the workmen of more than one employer a separate application 
 shall be made by each employer. 
 
 3. Every application for certificate to a partial amendment of a 
 scheme shall be in Form D, and shall be accompanied by the documents 
 mentioned in such Form. If a scheme includes the workmen of more 
 than one employer a separate application shaU be made by each 
 employer. 
 
 4. Every application for renewal of certificate to a scheme shall be 
 in Form E, and shall be accompanied by the documents mentioned in 
 such form. If a scheme includes the workmen of more than one 
 employer a separate application shall be made by each employer. 
 
 5. Every- complaint by or on behalf of workmen shall be as nearly 
 as may be in Form F. 
 
£ 
 
 s. 
 
 d. 
 
 1 
 
 
 
 
 
 2 
 
 
 
 
 
 3 
 
 
 
 
 
 5 
 
 
 
 
 
 1 
 
 
 
 
 
 Begulations iy Registrar of Friendly Societies 885 
 
 6. The following fees shall be payable in advance for matters to be 
 transacted and for the inspection of documents Tinder the Act : — 
 
 For every certificate to a scheme, for the renewal of 
 certificate to a, scheme, or for the re-certification 
 (under section 15 of the Act) of a scheme, when the 
 number of workmen in the employment — 
 
 does not exceed 100 
 
 exceeds 100, but does not exceed SOO 
 
 „ 500 „ „ 1,000 
 
 „ 1,000 
 
 For every certificate to a partial amendment of a scheme 
 
 (In any of the above cases when a scheme includes the 
 workmen of more than one employer the fee wiU be 
 payable by each employer in accordance with the 
 number of workmen in his employment.) 
 
 For every determination as to distribution of funds on 
 expiration or revocation of certificate to a scheme, 
 when the amount for distribution 
 
 does not exceed £500 ... ... ... ... 5 
 
 exceeds£500 Not ex- 
 ceeding 1% of 
 the amount for 
 distribution. 
 
 For every document required to be signed by a Registrar 
 or to bear the seal of the Central Office and not 
 chargeable with any other fee to the Registrar ... 2 6 
 
 For every inspection on the same day of documents 
 (whether one or more) in the custody of the Registrar 
 relating to one and the same scheme ... ... ... 1 
 
 For every copy or extract of any document in the 
 custody of the Registrar, not exceeding 216 words ... 1 
 
 And, if exceeding that number, 4d. per folio of 72 words 
 (in addition to the fee, if any, for the signature of a 
 Registrar or seal of the Central Office). 
 
 /. D. Stuart Sim, 
 Chief Registrar of Friendly Societies. 
 
 1st July, 1907. 
 
886 
 
 Appendix 
 
 FOEM A. 
 
 Worhmen's Compensation Act, 1906. 
 
 Application for Certificate to Scheme. 
 
 If the scheme 
 iaclndes other 
 employers and 
 tbeir workmen 
 a separate 
 application 
 must be made 
 by each 
 employer and 
 provision for 
 administration, 
 etc., should be 
 made in the 
 scheme. 
 
 Pull 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 at a 
 
 ballot, taken on , 19 i of such workmen voted in favour 
 
 of the scheme, an abstract of which — with a notification that any work- 
 man objecting to the same was at liberty to communicate his views to the 
 Begistrar of Friendly Societies, 28, Abingdon Street, London, S.W. (or as 
 the case ma/y 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 with 
 those of the Act : — 
 
 
 Scale of Comfensatiok. 
 
 
 By Act. 
 
 By Scheme, 
 
 Where death results from the 
 
 
 
 
 mjury— 
 
 
 
 
 (a) If the workman leaves 
 any dependants whoUy 
 dependent upon his 
 earnings. 
 
 (a) 
 
 £150 to £300, subject to 
 the conditions men- 
 tioned in the Act. 
 
 (a) 
 
 (6) If the workman does 
 not leave any such 
 dependants, but leaves 
 any dependants in part 
 dependent upon his 
 eamiugs. 
 
 {V) 
 
 Not exceeding (a). 
 
 (b) 
 
 (c) If the workman leaves 
 no dependants. 
 
 (0) 
 
 Not exceeding £10. 
 
 ic) 
 
Eegulations by Registrar of Friendly Societies 887 
 
 
 Scale of Coufxhsaiion. 
 
 
 By Act. 
 
 By Scheme. 
 
 Where total incapacity for 
 work results from the 
 injury — 
 
 (a) All cases other than 
 those under (6). 
 
 (6) If the workman is 
 under 21 years of age 
 and his average weekly 
 earnings are less than 
 20s. 
 
 (a) Not exceeding 50% of 
 average earnings and not 
 exceeding £X per week, 
 but no compensation for 
 first week if the incapa- 
 city lasts less than two 
 weeks. 
 
 (6) Not exceeding average 
 earnings and not exceed- 
 ing 10s. per week, but no 
 compensation for first 
 week if the incapacity 
 lasts less than two weeks. 
 
 {a) 
 (6) 
 
 Where partial incapacity for 
 work results from the 
 injury. 
 
 As for total incapacity, but 
 not exceeding the dif- 
 ference between average 
 earnings before incapa- 
 city and average earn- 
 ings while in receipt of 
 compensation. 
 
 
 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 workmen 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 appUoants ; 
 
 (6) An actuarial report on the scheme by Mr. 
 
 (c) A statutory declaration in Form B verifying the result of the 
 
 ballot, etc. 
 
 (d) 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 
 
888 
 
 Appendix 
 
 •cgula- (e) The fee of* preaoribed by the Regulations. 
 
 The views of the employer are as follows : — 
 
 The views of the workmen are as follows :- 
 
 \ Workmen. 
 
 If the employer 
 is a body cor- 
 porate the eeal Date 
 of the corpora- 
 tion should be 
 afBzed and duly 
 witnessed in the 
 space provided 
 for the signature. 
 
 ,19 
 
 Employer. 
 
 (This declara- 
 tion is to be 
 made either by 
 the employer, 
 by the manager 
 of the works, or 
 by some other 
 responsible 
 person.) 
 
 * Insert 
 " certificate to," 
 " re-certification 
 of," or as the 
 case may Ve. 
 
 POBM B. 
 
 Workmen's Compensation Act, 1906. 
 
 Declarat/icm verifying result of Ballot, etc. 
 
 Pull name of employer 
 
 I, ,of 
 
 and sincerely declare that at a baUot taken on 
 fourteen days' notice thereof had been given, 
 of workmen in the employment of 
 of the scheme, application for * 
 declaration, and that on the date of the said ballot the total number of 
 workmen in the said employment was 
 
 And I make this solemn declaration, conscientiously believing the same 
 to be true, and by virtue of the provisions of the Statutory Deolarationa 
 Act, 1835. 
 
 , do solemnly 
 
 , 19 , after 
 
 out of the total number 
 
 voted in favour 
 
 which is attached to this 
 
 Signature of decla/rcmt. 
 
 t Taken and received before me, one-\ 
 of His Majesty's Justices of 
 the Peace for the County of 
 , at , 
 
 in the said County, this 
 day of , 19 . 
 
 t This is to be altered as the case requires where any declaration is made before a 
 Borough Magistrate or Commissioner for Oaths. 
 
Regulations by Registrar of Friendly Societies '889 
 
 Poem 0. 
 Workmen's Compensation Act, 1906. 
 
 AppUcdtion for re-certiflcation of a Scheme certified tmder the Act of 1897. 
 
 FuU 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 Workmen'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:— 
 
 If the scheme 
 includes other 
 employers and 
 their workmen 
 a separate appli- 
 cation must be 
 made by each 
 employer and 
 provision for 
 administration, 
 etc., should be 
 made in the 
 scheme. 
 
 
 Scale op CoMpressATfON. 
 
 
 
 
 By Scheme. 
 
 
 By Act. 
 
 
 
 
 
 As now 
 
 As already 
 
 
 
 submitted. 
 
 certified. 
 
 Where death results 
 
 
 
 
 from the injury— 
 
 
 
 
 (a) If the workman 
 
 (a) £150 tQ £300, sub- 
 
 (a) 
 
 (a) 
 
 leaves any depen- 
 
 ject to the eon- 
 
 
 
 dants wholly de- 
 
 ditions mentioned 
 
 
 
 pendent upon 
 
 in the Act. 
 
 
 
 his earnings. 
 
 ' 
 
 
 
 (6) If the workman 
 
 (b) Not exceeding (a). 
 
 (6) 
 
 (6) 
 
 does not leave 
 
 
 
 
 any such depen- 
 
 
 
 , 
 
 dants, but leaves 
 
 
 
 
 any dependants 
 
 
 
 
 in part depen- 
 
 
 
 
 dent upon his 
 
 
 > 
 
 
 earnings. 
 
 
 
 
 (c) If the workman 
 
 (c) Not exceeding £10. 
 
 (<=) 
 
 {0) 
 
 leaves no depen- 
 
 
 
 
 dants. 
 
 
 
 
 B.E.L. 
 
 3 M 
 
890 
 
 Appendix 
 
 
 SOAIB OP COMPBHSATIOK. 
 
 
 By Act. 
 
 By Scheme. 
 
 
 As now 
 snbmltted. 
 
 Ab already 
 certUed. 
 
 Where total incapacity 
 
 for work results from 
 
 the injury — 
 
 (a) All cases other 
 
 than those under 
 
 (6). 
 
 (6) If the workman 
 is under 21 years 
 of age and his 
 average weekly 
 earnings are less 
 than 20g. 
 
 (a) Not exceeding 50% 
 of average earnings 
 and not exceeding 
 £1 per week, but 
 no compensation 
 for first week if the 
 incapacity lasts 
 less than two 
 weeks. 
 
 (6) Not exceeding aver- 
 age earnings and 
 not exceeding 10s. 
 per week, but no 
 compensation for 
 first week if the in- 
 capacity lasts less 
 than two weeks. 
 
 (a) 
 (6) 
 
 (a) 
 (6) 
 
 Where partial incapa- 
 city for work resiSts 
 from the injury. 
 
 As for total incapacity, 
 but not exceeding 
 the difference be- 
 tween average 
 earnings before in- 
 capacity and aver- 
 age earnings while 
 in receipt of com- 
 pensation.- 
 
 
 
 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 workman to join 
 
 the scheme as a condition of their hiring. 
 
 With this application are sent — 
 
 (o) 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, etc. ; 
 
Regulations hy Registrar of Friendly Societies 891 
 
 (d) 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 : — 
 
 * See regula- 
 tion 6. 
 
 The views of the workman are as follows : — 
 
 Date 
 
 ,19 
 
 Workmen, 
 
 Employer. 
 
 FOBM D. 
 Workmen's Compensation Act, 1906. 
 
 If the em- 
 ployer is a body 
 corporate the 
 seal of the corpo- 
 ration should be 
 affixed and duly 
 witnessed in the 
 space provided 
 for the signature. 
 
 Application for Certificate to partial amendment of Scheme. 
 
 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 ; 
 (&) 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 regulations. 
 
 The views of the general body of workmen are as follows : — 
 
 I Workmen. 
 
 Employer. 
 
 Date 
 
 , 19 
 
 If the em- 
 ployer is a body 
 corporate the 
 seal of the corpo- 
 ration should be 
 affixed and duly 
 witnessed in the 
 space provided 
 for the signature. 
 
892 
 
 Appendix 
 
 FOBM E. 
 Workmen's Compensation Act, 1906. 
 
 A^Ucation for renewal of certificate to scheme. 
 
 If the scheme 
 sludeB other 
 iployers and 
 eir workmen 
 ieparate appli- 
 tion must be 
 ide by each 
 iployer and 
 ovision for 
 ministration, 
 ;., should be 
 Eide in the 
 heme. 
 
 Full name and address of em;ployer. 
 
 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 oom- 
 parative 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 : — 
 
 
 Scale or Compensation. 
 
 — 
 
 By Act. 
 
 By Scheme, 
 
 
 
 
 
 
 As certified. 
 
 Proposed 
 alterations. 
 
 Where death results 
 
 
 
 
 from the injury — 
 
 
 
 
 (a) If the workman 
 
 {a) £150 to £300, sub- 
 
 (a) 
 
 (a) 
 
 leaves any depen- 
 
 ject to the con- 
 
 
 dants wholly de- 
 
 ditions mentioned 
 
 
 
 pendent upon 
 
 in the Act. 
 
 
 
 his earnings. 
 
 
 
 
 (6) If the workman 
 does not leave 
 
 (6) Not exceeding (a). 
 
 (6) 
 
 (b) 
 
 any such depen- 
 
 
 
 
 dants, but leaves 
 
 
 
 
 any dependants 
 
 
 
 
 in part depen- 
 
 
 
 
 dent upon his 
 earnings, 
 (c) If the workman 
 
 
 
 
 (c) Not exceeding £10, 
 
 (c) 
 
 (c) 
 
 leaves no depen- 
 
 
 
 
 dants. 
 
 
 
 
Regulations hy Registrar of Friendly Societies 893 
 
 
 SCALB OF COMPEKSATIOH. 
 
 
 , 
 
 By Scbemi!, 
 
 
 iSyAct. 
 
 
 
 
 
 As certified. 
 
 Proposed 
 alterations. 
 
 Where total incapacity 
 
 
 
 
 for work results from 
 
 
 
 
 the injury — 
 
 
 
 
 (a) All cases other 
 
 (a) Not exceeding 50% 
 
 (a) 
 
 (a) 
 
 than those under 
 
 of average earnings 
 
 
 
 (6). 
 
 and not exceeding 
 £1 per week, but 
 no compensation 
 for first week if the 
 incapacity lasts 
 less than two 
 weeks. 
 
 
 
 (6) If the workman 
 
 (6) Not exceeding aver- 
 
 {b) 
 
 (6) 
 
 is under 21 years 
 
 age earnings and 
 
 
 
 of age and his 
 
 not exceeding 10s. 
 
 
 
 average weekly 
 
 per week, but no 
 
 
 
 earnings are less 
 
 compensation for 
 
 
 
 than 20s. 
 
 first week if the 
 incapacity lasts 
 less than two 
 weeks. 
 
 
 
 Where partial incapa- 
 
 As for total incapacity, 
 
 
 
 city for work results 
 
 but not exceeding 
 
 
 
 from the injury. 
 
 the difierence be- 
 tween average 
 earnings before in- 
 capacity and aver- 
 age earnings whUe 
 in receipt of com- 
 pensation. 
 
 
 
 Benefits other than those of the Act 
 
 
 
 Contributions of employer 
 
 
 
 Contributions of workme 
 
 a. 
 
 
 
 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 working of the scheme during the 
 preceding five years, l)y Mr. ; 
 
894 
 
 Appendix 
 
 The Regis- 
 may .require 
 Hot if he 
 ksfit. 
 
 See regula- 
 
 *(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 of t prescribed by the Begulations. 
 
 The views of the employer are as follows : — 
 
 The views of the workmen are as follows : — 
 
 the em- 
 er is a body 
 orate the 
 of the cor- 
 tioa Bhould 
 Hxed and 
 ' witnessed 
 le space 
 Ided for 
 iigaature. 
 
 Date 
 
 ,19 
 
 FOBM F. 
 
 Workmen's Compensation Act, 1906. 
 Form of Comjplamt of Workman. 
 
 Workmen. 
 
 Employer. 
 
 Scheme No. 
 To The Bbgistbab op FRniNDLy Societies, 
 
 28, Abingdon Stbbet, 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 : — 
 
 or, 
 2°. That the provisions of the scheme are being violated in the 
 following respects : — 
 
 3^^. That the scheme is not being fairly administered in the following 
 
 or, 
 
 4°. That the following reasons exist for revoking the certificate to 
 the scheme : — 
 
 You are re(iue3ted to examine into this complaint, and if satisfied that 
 
Worhmen's Compensation Rules, 1908 895 
 
 good cause exists for it, to revoke the oertifioate to tlie scheme unless the 
 cause of complaint is removed. 
 
 The undersigned have been authorised in the following manner to make 
 the oomplamt on behalf of themselves and the other workmen of the said 
 employer : — 
 
 Workmen. 
 
 Date , 19 
 
 WOEKMEN'S COMPENSATION KULES, 1908. 
 
 No. 2. 
 
 Bated the 2Wh Bay of November, 1908. 
 
 The following Rules shall have efEect under the Workmen's Com- 
 pensation Act, 1906. 
 
 These Hides may be cited as the Workmen's Compensation Rules, 
 1908 (No. 2), or each rule may be cited as if it had been one of the 
 Workmen's Compensation Rules, 1907 (herein referred to as the 
 principal Rides), and had been numbered therein by the number of 
 the Rule placed in the margin opposite such Rule. 
 
 These rules shall come into operation on the 1st day of January, 
 one thousand nine hundred and nine. 
 
 Appearance of Parties in Arbitration. 
 
 1. {Amendmient of Bule 33.] — (1) The following words shall be 
 inserted in paragraph 1 of Rule 33 of the principal Rules after the 
 word " Act," viz. : — 
 
 " whether before a committee or an agreed arbitrator, or before a 
 judge or an arbitrator appointed by a judge." 
 (2) The following words shall be inserted in paragraph (1) (g) of 
 the principal Rules after the word '' connected," viz. : — 
 
 " or, where death results from the injury, by any officer or 
 member of any society or other body of persons of which the 
 deceased workman was a member or with which he was 
 connected." 
 
896 Appendix 
 
 Memorcmdum imder Schedule II., Paragraph 9. 
 
 2. [Bule 41a. Amendment of Bide 41.]— The following- paragraph 
 shall be added to Rule 41 of the principal Kules, Tiz. : — 
 
 IForm 36a.]— (3) Where the matter is decided by agreement, 
 there shall be added to the memorandum a paragraph according to 
 the Form 36a in the Appendix, containing a statement of, such of 
 the particulars mentioned in that form as are applicable to the 
 circumstances of the case. 
 
 3. [Bule 42a. Amendment of Bule 42.] — The following paragraphs 
 shall be added to Rule 42 of the principal Rules, viz. : — 
 
 (4) Where the matter is decided by agreement, the registrar shall, 
 unless the original agreement, duly executed, is left or sent to be 
 recorded, satisfy himself that such original agreement has been duly 
 executed, and may for that purpose require such agreement to be 
 produced ; but he shall not be entitled to retain the same where a 
 memorandum thereof is left or sent to be recorded. 
 
 (5) An agreement or memorandum of an agreement may be left 
 with or sent to the registrar by insurers on behalf of the parties 
 interested. 
 
 Beference of Agreement presented for Begistration to the Judge. 
 Schedule II., Paragraph 9, Proviso (d). 
 
 4. [Bule 49a. Amendment of Bule 4-9. ] — (1) The following words 
 shall be added to paragraph 1 of Rule 49 of the principal Rules, 
 viz. ; — 
 
 ~ " And it shall be the duty of the parties to the agreement to 
 answer such inquiries and give such information accordingly." 
 
 (2) The following words shall be added to paragraph 8 of Rule 49 
 of the principal RxQes, viz. : — 
 
 " And in particular, if it appears that a report of the registrar 
 has been rendered necessary by the neglect or refusal of any 
 party to an agreement to furnish any information reasonably 
 reqtiired of him by the registrar, such party may be ordered 
 to pay the costs of the inquiry." 
 
 Application for Variation of Order under Schedule I., Paragraph 9. 
 
 5. [Bule 58a. Amendment of Bule 58 (1).] —Paragraph 1 of Rule 
 58 of the priacipal Rules shall be read and construed as if the words 
 " by or on behalf of " were substituted therein for the word " by." 
 
Worhmen's Compensation Bules, 1908 897 
 
 Coats. 
 
 6. \_Bule 61a. ATtiendment of Rule 61 (1).] — The following words 
 shaU be added to paragraph 1 of Rule 61 of the principal Rules, viz. :— 
 
 Where costs are directed to be taxed under Column A., a fee for 
 advising on evidence, and allowances under Order LIII., Rules 43 
 and 44, to expert or scientific witnesses, and for plans, &c., may be 
 allowed by special order of the judge, committee, or arbitrator, in 
 like manner as if costs had been directed to be taxed under Column B. 
 
 Proeedure Generally. 
 
 7. [liule 78a. Bules 7 and 33 to apply to all proceedings vmder 
 Act and Bules.']— Rules 7 and 33 of the principal Rules shall apply to 
 aU proceedings under the Act and these Rules in the like manner as 
 to proceedings by way of arbitration. 
 
 Appendix. 
 FoEM 36a. 
 
 Information to be supplied in Memorandum of Agreement with am, injti/red 
 jvorkma/n, or with the representative or dependants of a deceased 
 workman. 
 
 A. — In case of agreement with injti/red workman. 
 
 (a) The said A.B. was at the date of the accident years 
 
 of age. 
 
 (6) He was employed as , and Ms average weekly earn- 
 
 ings computed in aocordanoei with the above mentioned Act 
 were 
 
 (c) He was injured by , and the nature of his injury 
 
 was as follows : 
 
 (d) He was totally incapacitated for work for a period of 
 
 but recovered and wag fit to resume his ordinary work on the 
 day of 
 
 [or He was and is at present totally incapacitated for work, 
 but is expected to recover and to be fit to resume his ordinary work 
 in about ] : 
 
 [or He was totally incapacitated for work for a period of , 
 
 and is now partially incapacitated, but such partial incapacity is 
 not likely to be permanent, and he is expected to recover and to be 
 fit to resume his ordinary work in about ] : 
 
 [or He was and is totaUy incapacitated for work, and such 
 incapacity is likely to be permanent] : 
 
 [or He was totally incapacitated for work for a period of , 
 
 and is still partially incapacitated, and such partial incapacity is 
 
 likely to be permanent, but he is able to do light work, and it is 
 
 estimated that he is able to earn an average weekly amount of 
 
 in some suitable employment or business] : 
 
 [or as the case may be.] 
 
898 Appendix 
 
 (e) The said A.B. received the following payments, 
 
 allowances, or benefits from his employers previous to the date 
 of the agreement, viz. 
 
 B.— Where death resulted from the injury. 
 
 (a) The said A.B. was at the date of the accident 
 
 years of age. 
 
 (b) He was employed as , and his average weekly earnings 
 
 computed in accordance with the above mentioned Act were 
 
 (c) He left the following dependants wholly dependent upon his earn- 
 
 ings, and the following dependants partially dependent, viz, : 
 
 [Mere state dependants, with their relationship to the deceased, 
 arid pa/rticula/rs showing how and to what extent they were 
 
 - - 5.] 
 
 lor He left no dependants wholly dependent upon his earnings, 
 but left the following dependants partially dependent, viz. : 
 
 IHere state dependamts, with their relationship to the deceased, 
 a/)id particulars showing how and to what extent they were 
 
 (d) The following payments were made to the said A.B. 
 after the accident, viz. : 
 
 "We, William L. Selfe, William Ceon Smyly, Robert Woodfall, 
 Thomas C. Granger, and H. Tindal Atkinson, being the five judges of 
 the County Courts appointed for the making of Rules under section 
 one hundred and sixty-four of the County Courts Act, 1888, having 
 made the foregoing Rules of Court, pursuant to paragraph twelve of 
 the Second Schedule to the Workmen's Compensation Act, 1906, do 
 hereby certify the same under our hands, and submit them to the 
 Lord Chancellor accordingly. 
 
 (Signed) Wm. L. Selfe. 
 
 Wm. Cecil Smyly. 
 B. Woodfall. 
 T. G. Gromger. 
 H. Tindal Athinson. 
 
 I allow these Rules, 
 
 (Signed) Lorebum, C. 
 The 24th November, 1908. 
 
 Memorandum. 
 
 Bale 1. The proposed additions are intended to make it clear that 
 Rule 33, as to the appearance of parties to arbitrations, applies to all 
 arbitrations under the Act, and further provides that dependants of 
 
Workmen's Compensation Bides, 1908 899 
 
 a deceased workman may be represented by an officer of a society with 
 which the workman was connected. 
 
 Rules 2 and 4 are suggested to meet a difficulty which is experienced 
 by registrars to whom agreements are forwarded for registration 
 under Schedule 2, paragraph 9, in obtaining information to enable 
 them to judge whether such agreements may properly be recorded ; 
 and they provide that the memorandum of an agreement shall contain 
 such information. For this purpose Eule 2 provides that the memo- 
 randum shall state, in the case of a workman, his average weekly 
 earnings and his condition as to capacity for work, and in the case of a 
 deceased workman, his average weekly earnings and particulars as to his 
 dependants, so that the registrar may be able to form an opinion as to 
 whether a lump sum agreed to, be paid in redemption of a weekly pay- 
 ment, or the amount of compensation agreed to be paid to dependants, 
 is adequate or not. 
 
 B/ule 4 amends Rule 49 by providing that it shall be the duty of 
 the parties to an agreement to furnish such information as may be 
 required by the registrar ; and by providing that where a reference to 
 the judge is rendered necessary by the refusal or neglect of any party 
 to furnish information reasonably required by the registrar, such 
 party may be ordered to pay the costs of an inquiry by the judge. 
 
 A form of inquiry which is in use in some courts is hereto annexed. 
 It has been found to be of use in producing the necessary information. 
 
 Memokandtjm. 
 
 Trom 
 
 The Registrar, 
 
 County Court, 
 
 To 
 
 190 
 
 The Workmen's Gompensation Act, 1906. 
 
 The Registrar will be obliged by your informing him, either by 
 letter or at a personal interview here, the nature of the accident, the 
 duration of the total or partial incapacity for work, and any facts you 
 may desire to bring to his notice as to the circumstances leading to 
 the agreement as to the amount of the compensation. 
 
 Rule 3 is suggested in order to secure uniformity of practice. 
 Some registrars require the original agreement to be produced when 
 a memorandum is filed, and claim to retain it ; a practice to which 
 insurance companies object, as the original agreements are often 
 required as vouchers for payment or for purposes of audit; and a 
 
900 Appendix 
 
 question has also arisen as to whether a memorandum of agreement 
 may be lodged by insurers. 
 
 The Act only requires a memorandum of an agreement, and not 
 the original agreement, to be recorded, though ' no doubt the original 
 agreement, which is the best evidence, may be filed. It is submitted 
 that where a memorandum is filed, the registrar may properly require 
 the original to be produced, to satisfy himself that it has been duly 
 executed, but that he may well be satisfied on this point by the 
 assurance of a responsible person ; and that where a memorandum is 
 filed, the registrar is not entitled to retain the original agreement. 
 It is further submitted that memoranda of agreements, which are 
 generally entered into by insurers on behalf of the employers, may 
 properly be filed by insurers on behalf of the parties interested ; and 
 the draft additions to Rule 42 have been framed in accordance with 
 these submissions. 
 
 Rule 4 See note to Bule 2. 
 
 Bule 5 is suggested to enable applications under Rule 58 for the 
 variation of orders to be made on behalf of infant dependants by next 
 friends in cases where the interests of the mother and the infants 
 may be conflicting. 
 
 Bule 6. Cases arising under the Act of 1906 often resolve them- 
 selves into questions of medical evidence as to the condition of the 
 injured workman ; and where there is any dispute as to his condition 
 expert witnesses are habitually called. There is no power under the 
 Rxiles to allow the costs of advising on evidence, or fees to experts, 
 unless costs are allowed on Scale B, and many cases occur in which 
 the court is not disposed to aUow costs on that scale, but is met by 
 the diflculty that if the costs of advice on evidence and qualifying 
 fees to a medical man are not allowed, the whole amount of com- 
 pensation allowed will be swallowed up by such costs, if they have 
 to be borne by the workman. To meet this difficulty it is suggested 
 that power should be conferred to allow such costs where costs are 
 taxed on Scale A, as an alternative to allowing the whole of the 
 costs on Scale B. 
 
 Bule 7 applies Rules 7 and 33 as to persons under disability and 
 partners and as to the parties by whom parties to arbitration may 
 appear, to all proceedings under the Act and rules, those rules being 
 at present limited to proceedings by way of arbitration. The sug- 
 gested amendment would enable persons interested in infant children 
 to apply to the court under Schedule I., paragraph 9, for the variation 
 of orders or awards as to the apportionment of compensation. 
 
 November, 1908. 
 
900" 
 
 ADDITIONAL INDUSTEIAL DISEASES BEOUGHT 
 UNDEE THE ACT. 
 
 Home Oppioe, 
 
 Whitehall, S.W., 
 
 December, 1908. 
 
 " Sia, 
 
 With reference to the Home Office circular letter to 
 Certifying Surgeons of the 29th June, 1907, on the subject of the 
 application of the Workmen's Compensation Act, 1906, to oases of 
 industrial disease, I am dix-ected by the Secretary of State to say that 
 he has made a further Order dated 2nd December, 1908, under sub- 
 section (6) of section 8, which adds to the Ust of diseases in respect of 
 which compensation is payable two additional diseases, namely, cataract 
 in glassworkers and telegraphists' cramp. 
 
 In the case of a workman disabled by glassworkers' cataract who 
 has been employed in processes in the manufacture of glass involving 
 exposure to the glare of molten glass, and in the case of a workman 
 disabled by telegraphists' cramp who has been engaged in the use of 
 telegx-aphic instruments, the disease is to be deemed to be due to the 
 employment unless the Siirgeon certifies, or the employer proves, to 
 the contrary. 
 
 In the case of Post Office employees suffering from telegraphists' 
 cramp the application for a certificate of disablement is to be dealt 
 with by the Post Office Medical Officer under whose charge the appli- 
 cant is placed, and not hy the Certifying Surgeon. 
 
 The Order also modifies the description of the disease specified in 
 the previous Order as ' Eczematous ulceration of the skin produced 
 by dust or caustic or corrosive lic[uids, or ulceration of the mucous 
 tnembrane of the nose or mouth produced by dust ' (see No. 9 of the 
 List of Diseases in Schedule B of Table I in the Home Office circular 
 of 29th June, 1907) by the omission of the words ' caustic or corrosive.' 
 The description now reads as follows : — ' Eczematous ulceration of the 
 skin produced by dust or liquids, or ulceration of the mucous membrane 
 of the nose or mouth produced by dust.' 
 
 For the purpose of statistics under the Act the Secretary of State 
 is anxious to obtain certain particulars of the work done by Certifying 
 Surgeons under section 8, and he wiU be obliged therefore if you wiU 
 kindly fill in at tlie end of the year the enclosed Form and return it in 
 the accompanying envelope." 
 
 To Factory Certifying Surgeons. 
 
INDEX TO CONTENTS. 
 
 ABORTIVE ACTION- 
 oosts of . . 
 
 ABOUT 
 
 (See " On, in or about.") 
 
 PAGE 
 653 
 
 494 
 
 AOGEPTANOB OP COMPENSATION— 
 
 primS, facie evidence of agreement . . . . . . . . . . 530 
 
 ACCIDENT— 
 
 defined 16,346-355 
 
 secondary meaning .. .. .. .. .. .. .. 17 
 
 legal efieot of long immmiity from . . . . . . 19 
 
 spark emitted from engine . . . . . . . . . . . . 19 
 
 througli chain breaking . . . . . . . . . . . . 26 
 
 through cheap method of working . . . . . . . : 27, 32 
 
 extraordinary .. .. .. .. .. .. .. .. 50,60 
 
 from fireworks . . . . . . . . . . . . 59 
 
 not reasonably to be foreseen imports no liability . . . . 60 
 
 from imknown peculiarity of horse . . . . . . . . 75 n. (a) 
 
 not defined under Workmen's Compensation Act, 1906.. .. 346 
 
 Lord Macnaghten's enunciation . . . . . . . . . . 346 
 
 anthrax .. .. .. .. .. .. .. .. .. 347 
 
 whether injury by disease is an injury by accident . . . . 348 
 
 where effect of, not immediate . . . . . . . . 349, 529 
 
 accelerating death from pre-existing disease .. .. .. 350 
 
 acceleration of incapacity from disease by . . . . . . . . 850 
 
 apoplexy after accident . . . . . . . . . . . . 351 
 
 inhalation of sewer gas . . . . . . . . . . . . 352 
 
 heat stroke . . . . . . . . . . . . . . . . 353 
 
 industrial disease . . . . . . . . . . . . 355-368 
 
 arising out of and in course of employment under 1906 Act . . 369 
 (And see " Abisinq odt of and in coubse oi' the Employment.") 
 
 notice of, not exercise of " option " of remedy 
 
 whUe leaving mine . . . . . . . . . . . . . . 872 
 
 in transit to or from work . . . . . . . . 371, 380 
 
 occurring on adjacent premises, effect of . . . . . . . . 377 
 
 during temporary absence . . . . . . . . . . . . 388 
 
 arising out of cause external to employment 890 
 
 to sub-contractor's workman . . . . . . . . .. . . 484 
 
 employer's policy not against accident, within Stamp Act, 1891, 
 
 s. 98(1) 589 
 
 notice of, under W. 0. Act, 1906 600 
 
 compared with Employers Liability Act, 1880 .. .. 601 
 
902 
 
 Index 
 
 XGCIDE'N'S!— continued page 
 
 notice of, effect of, Notice of Accidents Acts . . . . . . 602 
 
 why notice should he given . . . . , . 604 
 
 onus of proving respondents not prejudiced 605 
 
 Notice of Accidents Acts, 1894 and 1906 . . . . . . . . 602 
 
 notice to be given by employer . . . . . . . . . . 602 
 
 workman having given notice of, to submit to examination if 
 
 required .. .. .. .. .. .. .. .. 676 
 
 ACCORD AND SATISFACTION— 
 
 pleaded to claim under Lord Campbell's Act 
 
 116, 118 
 .. 408 
 
 ACT— 
 
 reckless .. 
 
 ACT OP GOD— 
 
 included in accident . . 
 
 house burnt by lightning [[ 
 
 storm 
 
 legal principle signified by the phrase 
 
 ACT OF SEDERUNT— 
 
 substituted for rules of Court . . 
 directions to sheriff to state case under 
 
 ACTION— 
 
 under Employers Liability Act, 1880, how tried 
 
 consolidation of actions under Act of 1880 . . . . . . ,[ 
 
 workman's option of, under W. C. Act, 1906 
 
 arbitration in proceedings under the W. C. Act, 1906, after 
 
 unsuccessful action . . 
 costs of abortive 
 employer's right of , against stranger .. .. .. '' 
 
 ACTS OF PARLIAMENT- 
 construction of . . 
 
 ADMIRALTY DIVISION— 
 
 no jurisdiction in rem under Lord Campbell's Act 
 
 ADVOCATES— 
 
 who may appear at arbitration 
 
 AGE— 
 
 not a ground of diminished compensation . . 
 
 AGENT— 
 
 not a servant 
 
 nor under an obligation to commit a tort . . 
 co-operating with another to produce negligence . . 
 may render his principal liable by his fraud 
 or crime 
 
 AGREEMENT— 
 
 contracting out of benefit of statutory protection . . 
 
 compensation paid under 
 
 to review compensation valid . . 
 
 AMBIGUITY— 
 
 in words of Act of Parliament . . _ _ 260 
 
 16 
 51 
 61 
 66 
 
 322 
 702 
 
 251 
 255 
 416 
 
 417 
 653 
 687 
 
 362 
 118 
 
 566 
 
 
 .. 
 
 12 
 
 
 13 n (a) 
 
 
 
 63 
 
 
 
 155 
 
 
 iss 
 
 156 
 
 
 
 35 
 
 '.'. 515 
 
 '516 
 
 530 
 573 
 
Index 903 
 
 AMENDMENT— page 
 
 of notice of action 260 
 
 Oonnty Court Judge, power of .. .. .. .. 635 
 
 AMOUNT OP COMPENSATION 518 
 
 ANKYLOSTOMIASIS— 
 
 described.. .. .. .. .. .. .. _. ,, 356 
 
 ANNUITY— 
 
 purchase of through Post Office 553 
 
 how to be estimated 554 
 
 workman permanently injured entitled to . . . . . . 554, 556 
 
 ANSWEE— 
 
 objection of no claim, to be taken in 617 
 
 ANTHRAX- 
 
 disease under Act . . . . . . . . . . . . . . 347 
 
 APOPLEXY— 
 
 supervening after accident 351 
 
 APPEAL— 
 
 Court of Appeal has jurisdiction in questions of law only . . 638 
 
 to Court of Appeal under W. C. Act, 1906 688 
 
 refusal to state a case . . . . . . . . . . . . . . 640 
 
 to House of Lords in Scotch oases . . . . . . . . . . 702 
 
 APPEABANCE— 
 
 right to appear . . . . . . .-. . . . . . . . , 629 
 
 rules for 633 
 
 default of 638 
 
 " APPLICANT "— 
 
 who is 619 
 
 APPORTIONMENT— 
 
 of damages amongst dependants .. .. .. .. 620 
 
 may be submitted to arbitration . . . . . . . . . . 621 
 
 APPRENTICE— 
 
 earnings of, under Employers Liability Act, 1880, how calculated 239 
 
 wages of . . . . . . . . . . . . . . . . . . 571 
 
 rule of compensation to . . . . . . . . . . . . 571 
 
 APPRENTICE TO SEA SERVICE— 
 
 not within the Employers Liability Act, 1880 . . . . . . 267 
 
 within W. C. Act, 1906 308,450,593 
 
 APPRENTICESHIP— 
 
 loss of advantages of intuition, &c., not ground of compensation 
 
 under W. 0. Act, 1906 572 
 
 ARBITRATION— 
 
 schedule as to . . . . - . ■ ■ ■ • . • ■ ■ . . 335 
 
 to determine where disease is gradually contracted . . . . 363 
 
 appeal to the House of Lords 434 
 
904 Index 
 
 AEBITBATION— coniinued page 
 
 review of weekly payments by . . . . . . . . . . 574 
 
 preliminaries to . . . . . . . . . . . . . . . . 600 
 
 notice of . . . . . . . . . . . . . . . . . . 604 
 
 no limitation of time for request for . . . . . . 608 
 
 employer may demand . . . . . . . . . . . . 609 
 
 request for, a sufficient claim . . . . . . . . 613 
 
 request for, and who is to make . . . . . . . . 619 
 
 applicant.. .. .. .. .. .. .. .. .. 619 
 
 respondent .. .. .. .. .. .. .. .. 619 
 
 synopsis of procedure in . . . . . . . . . . 619-622 
 
 appUcatibn for . . . . . . . . . . . . . . . . 621 
 
 matters that may be submitted to .. '.. .. .. ... 622 
 
 on review . . " . . . . . . . . . . . . . . 622 
 
 various descriptions of . . . . . . . . . . . . . . 623 
 
 procedure of committee . . . . . . . . . . 623, 626 
 
 by substitute for County Court Judge . . . . . . 628 
 
 various descriptions of arbitrators . . . . . . . . . . 623 
 
 Councils of Conciliation . . . . . . . . 623 
 
 Arbitration Act, 1889, not to apply . . . . . . 624 641 
 
 without formalities . . . . . . . . . . . . 624 
 
 objection to voluntary . . . . . . . . . . . . 626 
 
 evidence in . . . . . . . . . . . . . . _ 629 
 
 appearance in, of any person for any other person 630 
 
 rules as to . . . . . . . . . . . . . . . . 630 
 
 procedure prescribed by rules . . . . . . . . . . 681 
 
 may be stayed pending test case . . . . . . . . 633 
 
 if submission to pay, award may be made . . . . . . . . 683 
 
 disclaimer of interest in . . . . . . . . . . . . 633 
 
 refusal of judge to exercise jurisdiction .. .. .. 640 673 
 
 case stated by arbitrator appeal to Court of Appeal . . . . ' 641 
 
 revocation of . . . . '. . . . . . . . . . _ 641 
 
 costs of. See Costs . . . . . . . . . . . . _ _ 642 
 
 ire forma pauperis .. .. .. .. . . . . _ 647 
 
 refusal, not condition precedent to, of County Court Judge's 
 
 jurisdiction . . . . . . . . . . . . . . _ 670 
 
 transfer of proceedings . . . . . . ■. . . . 674 
 
 ARBITBATOB— 
 
 functions of, in determining questions of serious and wilful 
 
 misconduct .. .. .. .. .. .. .. .. 400 
 
 may submit question to County Court Judge . . . . 402, 637, 641 
 
 discretion of , unlimited in oases of partial dependency . . .. S47 
 
 has no power to limit statutory rights . . . . : . . . 582 
 
 may force workman to proceed on application of employer . . 609 
 
 death, refusal or inability to act of . . . . . . 337 623 
 
 who may be . . . . . . . . . . . . . . _ ' 623 
 
 committee as . . . . . . . . . . . . . . 623 626 
 
 bound by rules of evidence . . . . . . . . . . . . ' 629 
 
 County Court Judge as . . . . . . _ 629 
 
 payment of .. .. .. .. '] 636 
 
 may correct clerical mistakes, or error in award . . 638 
 
 appeal in case stated by . . . . . . . . ... 641 
 
 AKTIPICER— 
 defined . . 
 
 274 
 
 distinguished from labourer ., .. ., ., ._ 274 275 
 
Index 
 
 905 
 
 PAGE 
 
 369 
 369 
 369 
 371 
 372 
 380 
 384 
 384 
 385 
 389 
 390 
 890 
 391 
 
 605 
 
 '■• AEISING OUT OF AND IN THE COURSE OF THE EM- 
 PLOYMENT "— 
 
 under Act of 1906 
 
 eaclt phrase has its own connotation 
 
 onus on applicant 
 
 whether accident is, question of fact 
 
 principle of .. 
 
 injuries sustained while going to work 
 
 workman trespasser 
 
 duty to report before leaving work . . 
 
 negligence irrelevant . . 
 
 workman acting on an emergency . . 
 
 actual working not necessary 
 
 cause of accident external to the employment 
 
 cat-bite .. 
 
 "AS FAE AS POSSIBLE"— 
 meaning of 
 
 ASSESSOES— 
 
 appointment of, imder Employers Liability Act 127 
 
 ASSIGNMENT— 
 
 weekly payments under W. 0. Act, 1906, not subject to . . 334, 548 
 
 AUTHOBITY— 
 
 (See Masteb and Sebvant, Scope oi" Authoeity, and Scope 
 
 01 Employment.) 
 scope of .. .. .. .. .. .. .. .. .. X41 
 
 AVERAGE WEEKLY EARNINGS— 
 how calculated under Act of 1908 
 Price V. Marsden superseded . . 
 how computed . . 
 
 in case of intermittent employment . . 
 House of Lords view of 
 Scotch view of . . 
 casual earnings . . 
 expenses out of wages . . 
 Lord Maonaghten's definition of 
 new method of computing 
 " employment by same employer " defined 
 
 "grade" 
 
 " concurrent contracts " 
 
 suggested cases . . 
 
 AWARD— 
 
 enforcement of . . . . _ . . 
 
 accidental sUp or omission in 
 
 of costs . . 
 
 certificate of judge to have eSeot of . . 
 
 judge's certificate when to act as an , . 
 
 registration of .. 
 
 no court fees payable in respect of any proceedings prior to 
 
 certified copy of.. 
 
 .. 519 
 .. 521 
 .. 521 
 .. 528 
 527 
 527 
 .. 528 
 531, 582 
 .. 532 
 .. 535 
 537 
 .. 537 
 381, 543 
 544, 645 
 
 626 
 638 
 649 
 658 
 659 
 669 
 674 
 675 
 
 BALANCE OP WAGES - 
 
 workman claiming under W. 0. Act, 1906, not entitled to 
 
 B.E.L. 
 
 3 N 
 
 381 
 
906 Index 
 
 BANKRUPTCY— ease 
 compensation to workmen in case of employer's, under W. G. 
 
 - Act, 1906 582 
 
 procedure as to insurers under employer's . . . . - • 583 
 
 of employer where no insurance . . . . . . . . • . 590 
 
 proceeding in bankruptcy, what is . . . . . . . . . . 597 
 
 BAR TO COMMON LAW PBOOEBDINaS 422 
 
 BASTARD— 
 
 cannot sue .. .. .. .. .. .. 107 
 
 within W. C. Act, 1906 463 
 
 BEAT HAND OR KNEE 349 
 
 BLASTING WORK— 
 
 negligently carried out . . . . . . . . . . 23 
 
 BLOOD POISONING— 
 
 resulting from accident — set up by coal in knee . . . . . . 350 
 
 BOARD AND LODGING— 
 
 may be included in earnings . . . . . . . . 533, 572 
 
 BOOKSTALL— 
 
 not on, in or about a railway under W. C. Act, 1906 . . . . 502 
 
 BORROWED— 
 
 things by workman on hia own account, not plant . . . . 184 
 
 BOY— 
 
 cleaning machine in a careless and reckless manner . . 374, 386 
 
 in a mine . . . . . . . . . . . . . . . . 387 
 
 wages of, given to parent . . . . . . . . . . . . 470 
 
 BURDEN OF PROOF- 
 
 of accident lies on plaintiff . . . . . . . , . . . . 369 
 
 of serious and wilful misconduct on defendant . . . . . . 369 
 
 BURIAL EXPENSES- 
 
 under Lord Campbell's Act, not recoverable . . 105 n (&) end 
 
 under W. C. Act, 1906 550,579 
 
 BUSINESS— 
 
 meaning of, under W. 0. Act, 1906 459 
 
 BUTTY MEN— 
 
 workmen.. .. .. .. .. .. '.. .. .. 217 
 
 miners under . . . . . . . . . . . . . . . . 276 
 
 BYE-LAWS— 
 
 at common law . . . . . . . . . . . . . . . . 224 
 
 under Employers Liability Act, 1880 . . . . . . . . 224 
 
 under various Statutes . . . . . . . . . . . . 225 
 
 tests of 227 
 
 limitations on . . . . . . . . . . . . . . . . 227 
 
 OAB— 
 
 horse falling into excavation . . . . . . . . . . . . 87 
 
 accident through drunken driver . . . . . . . . . . 55 (n) 
 
index 
 
 907 
 
 CAMPBELL'S (LOBD) ACT (9 & 10 Vict. c. 93) 
 common law doctrine . . 
 new cause of action 
 
 contributory negligence of deceased person 
 wife living in adultery . . 
 
 no right of father and mother of deceased to appear in action 
 
 PAGE 
 
 101-119 
 .. 101 
 103 n (c) 
 
 103 n (c) 
 
 104 n (6) 
 
 by executrix 
 child en ventre sa mire .. 
 bastard cannot maintain action under 
 no need to negative existence of relatives . . 
 jury must direct division of shares . . 
 effect of sec. 3 of Employers Liability Act, 1880, upon 
 compensation under . . 
 funeral expenses not recoverable under 
 successive actions 
 setting aside service of writ . . 
 money paid to compromise claim 
 payment out of Court of money paid in under 
 husband's right of recovery .. 
 
 children's right of recovery in respect of loss of mother 
 where life Income, damages how estimated 
 insurance money not taken into account . . 
 where injury to the personal estate . , 
 receipt not conclusive of satisfaction under 
 action under, after deceased had recovered damages 
 
 accord and satisfaction . . . . 
 
 no jurisdiction ira rem. under 
 
 CAEE— 
 
 duty to take, when arising 
 duty of exceptional 
 
 (See Duty and NEGMGENaB.) 
 
 CAEETAKEB— 
 not a labourer .. 
 
 CAET— 
 
 left unattended . . 
 
 104 n (c) 
 104 n (d) 
 104 n (d) 
 104 n (e) 
 
 104 n (/) 
 
 105 n (a) 
 
 105 n (6) 
 105 n (6) end 
 
 106 n (a) 
 106 n (&) 
 108 n 6) 
 
 108 n (6) 
 
 109 n (6) 
 109 n (6) 
 
 112 
 
 114 
 115 
 116 
 116 
 117 
 118 
 
 57 
 58,59 
 
 272 
 
 55 n 
 
 CASE STATED— 
 
 to County Court Judge .: 
 
 appeal from 
 
 CASUAL LABOUI^- 
 
 under W. C. Act, 1906 
 
 defined 
 
 employment must be of a casual nature 
 earnings of 
 
 CAT BITE, in course of employment . . 
 
 CATTLE— 
 
 on railway line 
 
 CAUSE— 
 
 distinctions as to 
 
 what the term signifies in law 
 
 CAUSED BY— 
 illustrated 
 
 336, 671 
 .. 671 
 
 .. 455 
 
 .. 456 
 
 .. 458 
 
 .. 528 
 
 .. 391 
 70 
 
 64 n (b) 223 
 52 
 
 (See' Accident and PkoXimatb Cause.) 
 
 351 
 
908 Index 
 
 CERTIFICATE— page 
 
 of Registrar of Friendly Societies as to contracting out under 
 
 W. C. Act, 1906 303,427,428,430,432 
 
 of judge when to act as an award . . . . . . . . . ■ 659 
 
 of medical referee, how far binding . . . . . . . . . . 683 
 
 CERTIFICATED COPY— 
 
 - of award .. .. .. .. .. .. ■• .- •■ 675 
 
 CEBTIFyrNG SURGEON— 
 
 how appointed .. .. .. .. .. .. .. 311,356 
 
 duties .. .. .. .'. .. .. .. .. .. 364 
 
 appeal from . . . . . . . . . . . . . . - • 364 
 
 CERTIORARI- 
 
 procedure in, considered . . . . . . . . . . 252-254 
 
 application, how to be made . . . . . . . . . . 256, 257 
 
 CHAIN- 
 
 breaking of 26,30,82 
 
 CHARGE ON COMPENSATION MONEY- 
 
 in no case allowed . . . . . . . . . . 582 
 
 CHARGE OR CONTROL— 
 
 of signal points, &c., on raUway . . . . . . . . 234-238 
 
 CHILD— 
 
 special duty<to . . . . . . . . . . . . . . . . 39 
 
 defined by the Factory and Workshop Act, 1901 . . . . 39 n (a) 
 
 throwing stones by infant under seven years of age . . . . 52 
 
 must be evidence of default to raise special duty to . . . . 80 
 
 "infant "defined 92 n (a) 
 
 playing on oart . . 
 
 jumping off cellar flap . . 
 
 finger crushed in machine 
 
 leaning on railing and falling into cellar 
 
 climbing on siU . . 
 
 fingers crushed in roUer 
 
 in arms injured . . 
 
 falling through defective area raUings 
 
 definition of, under Lord Campbell's Act 
 
 claiming as dependant under W. C. Act, 1906 . . . . . . 468 
 
 share of an award, investment of 
 
 (See Young Pbbson.) 
 
 93 
 93 
 94 
 94 
 94 
 94 
 95 
 97 
 104, 107 
 
 581 
 
 CHURCH CHOIR— 
 
 members of, within W. C. Act, 1906 450 
 
 CIVIL BILL COURT— 
 
 County Court in Ireland, means under Employers Liability 
 Act, 1880 128,258 
 
 CLAIM— 
 
 at common law, conjoined with under Employers Liability Act, 
 
 1880 253 
 
Index 
 
 909 
 
 CLAIM FOR COMPENSATION— page 
 
 a necessary preliminary under W. C. Act, 1906 600 
 
 no teohnloality needed . . . . . . . . . . . . . . 607 
 
 must be witliiii six months 608, 610 
 
 form o! 609, 611 
 
 but employer by conduct may waive this . . . . . . . . 613 
 
 leave to amend .. .. .. .. .. .. .. 617 
 
 request for arbitration is a sufficient claim . . . . . 613 
 
 objection of no claim, to be made in answer . . . . 617 
 
 in case of death of seaman . . . . . . . . . . . . 618 
 
 presumption as to lost ship . . . . . . . . . . . . 618 
 
 " CLOSELY CONNECTED "— 
 
 meaning of words . . . . . . . . . . . . . . 214 
 
 COALING ENGINE— 
 
 duty of employer in employing workmen for 19 
 
 COMMITTEE— 
 
 arbitration by, procedure . . . . . . . . . . 623 
 
 as arbitrator under W. 0. Act, 1906 626 
 
 time of meeting of . . . . . . . . . . 626 
 
 matter for consideration . . . . . . . . . . 627 
 
 summary of procedure . . . . . . . . . . . . 628 
 
 COMMON EMPLOYMENT— 
 
 servant may bring an action against another servant for injuries 
 
 sustained in . . . . . . . . . . . . . . 5 
 
 defined .. .. .. .. .. .. .. .. .. 13 
 
 test of . . . . . . . . . . . . . . . . . . 14 
 
 oases of . . . . . . . . . . . . . . 14 
 
 employer not liable for injury arising out of . . . . . . 41 
 
 does not exist between men of contractor and of sub-contractor 43 
 
 barman and barmaid . . . . . . . . . . . . . . 50 
 
 COMPANY— 
 
 in liquidation, as employer, right of workman to insurance . . 589 
 
 COMPENSATION— 
 where death results 
 
 under Lord Campbell's Act, means for pecuniary loss only 
 
 how measured . . 
 
 reasonable expectation of pecuniary benefit, what 
 
 only one recovery 
 
 limit of under Employers Liability Act, 1880 
 
 how estimated . . 
 
 what are weekly earnings 239, 327 
 
 in Government dockyards 
 
 proper direction to give to a jury relative to 
 
 principles of, under Act of 1880 
 
 schedule as to scale and conditions of 
 
 not payable where the cause of death is disease . . 
 
 contribution under sec, 8 
 
 no double recovery of 
 
 collateral remedy may not generally be pursued after 
 under W. 0. Act, 1906, contrasted vrith damages at 
 
 law .. .. ■• ■■ •■ ■• ,■•..- 
 
 comparison of advantages of different ways of obtaimng 
 claim for, not determinable by death of employer 
 
 101-119, 516, 518 
 
 391, 
 
 109 
 109-115 
 . 109 
 
 154 
 
 239, 240 
 
 519, 572 
 
 .. 283 
 
 .. 290 
 
 .. 291 
 
 325, 517 
 
 .. 350 
 
 .. 360 
 
 412, 415, 688 
 
 422 
 
 common 
 
 438 
 438 
 477 
 
910 Index 
 
 COMPENSATION— contouei? page 
 
 agreed composition . . . . . . . . . . • • ■ • 515 
 
 not to be reviewed . . . . . . . . . . . ■ • • 51^ 
 
 under W. C. Act, 1906 515 
 
 county court judge's assessment final . . . . . - . • 515 
 
 review of weekly payment . . . . . . . . ■ ■ ■ • 515 
 
 where workman dies '. . . . . . . . . . . . • ■ 616 
 
 scheme of the Act . . . . . . . . . . . . ■ ■ 517 
 
 in case of death, where there is total dependency . . 518-547 
 
 method of, where workman employed three years . . . . 518 
 
 where workman employed less . . . . . . 519 
 
 average weekly earnings . . . . . . . . . . • ■ 519 
 
 how computed . . . . . . . . • . . . • ■ • • 521 
 
 intermittent employment . . . . . . . . - . ■ • 523 
 
 casual earnings . , . . . . . . . . . . . . • • 528 
 
 acceptance of primd facie evidence of agreement '.. .. .. 530 
 
 in case of death, where is partial dependency . . . . 547-550 
 
 in case of death, leaving no dependants . . . . . . 551 
 
 payable to the workmen, what . . . . . . . . . . 552 
 
 where workman totally incapacitated . . . . . . . . 552 
 
 partial incapacity .. .. .. .. 558 
 
 injury without incapacity . . . . . . . . . . . . 559 
 
 young workmen and . . . . . . . . . . 562 
 
 review of weekly payment . . . . . . . . . . 564 et seq. 
 
 declaration of liahility . . . . . . . . 565 
 
 old age or infirmity and . . . . . . . . 566 
 
 objection to work oflered . . . . . . . . '. . . . 566 
 
 apprentice injured . . . . . . . . . . . . . . 571 
 
 new consideration introduced by the Act , , . . . . . . 572 
 
 not part of the estate . . . . . . . . . . . . 579 
 
 right to, survives . . . . . . . . . . . . . . 580 
 
 workman to have employer's rights vested . . . . . . 583 
 
 position of insurance companies . . . . . . . . 584 et seq. 
 
 in case of bankruptcy of employer . . . . . . . . . . 589 
 
 persons entitled to receive . . . . . . . . . . . . 591 
 
 infants receipt and . . . . . . . . . . . . . . 592 
 
 position of seamen . . . . . . . . . . . . . . 593 
 
 claim for, necessary under Act of 1906 . . . . . . . . 600 
 
 {See Claim fob Compensation.) 
 
 solicitor's lien under order for costs . . . . . . . . 652 
 
 abortive proceedings for . . . . . . . . . . . . 658 
 
 recovered from stranger as damages . . . . . . . . 688 
 
 what, disentitles from further recovery . . . . . . . . 689 
 
 COMPROMISE— 
 
 of claim, money paid in respect of . . . . . . . . 108 n (6) 
 
 CONCILIATION- 
 
 Councils of 624 
 
 OONCUBEENT CONTRACTS— 
 
 what are 381,543 
 
 considered 387, 543 
 
 CONDUCT— 
 
 standard of, how attained . . . . . . . . . . . . 400 
 
 employers may waive objection by .. .. .. .. .. 613 
 
 CONSEQUENCES— 
 
 rule novus actus interveniens when applicable . . . . 72 n (a) 
 
 of injury, what . . . . . . . . . . . . . . . . 352 
 
iTidex 911 
 
 CONTRACT— PiSE 
 
 induoing servant to break 4 n (e) 
 
 pro-vision as to existing . " 322, 431 
 
 concurrent, what is .. '543 
 
 CONTBAOT OF SEBVICE— 
 
 what is ■■. .. .. 288,445 
 
 CONTRACTING OUT OF— 
 liability at cojnmon law 
 
 taken away by W. C. Act, 1906 . 
 statutory obligations . . 
 the Employers Liability Act, 1880 
 contracts before Act determined 
 Workmen's Compensation Act, 1906, provisions as to 
 Registrar of Friendly Societies requirements for .. 
 (See Duty.) 
 
 35 
 
 429 
 
 
 429 
 
 .. 
 
 35 
 
 .. 
 
 294 
 
 322 
 
 431 
 
 
 427 
 
 427 
 
 428 
 
 
 11 
 
 'is 
 
 21 
 
 0.(0) 
 
 a (a) 
 43 
 
 77 
 
 11(a) 
 272 
 
 . , 
 
 285 
 
 . , 
 
 481 
 
 CONTRACTOR— 
 not a servant 
 
 not bound to commit a tort . . 
 actions against, and not against the employer 
 sub-contractor's workmen may recover against 1 . . 
 injury caused through servant of . . 
 not a workman or labourer . . 
 test to determine who is 
 principal and, under W. C. Act, 1906 
 
 (See SUB-OONTRACMNG.) 
 
 CONTRIBUTION— 
 
 under sect. 8 of 1906 Act . . . . . . . . . . . . 36O 
 
 CONTRIBUTORY NEGLIGENCE— 
 
 where statutory obligation . . . . . . . . . . . . 25 (w) 
 
 defined 85 
 
 analysed .. .. .. .. 85 
 
 the proportions of blame not estimated . . . . . . . . 87 
 
 test of, whether ordinary care could have prevented accident . . 86 
 
 plaintifi entitled, if he pleases, to take a dangerous course . . 87 
 defendant not excused by alleging that plaintifE could have 
 
 acted differently .. .. .. .. .. .. .. 89 
 
 physical incapacity is not, and does not deprive of right to 
 
 recover .. .. .. .. .. .. .. .. 90 
 
 drunken man . . . . . . . . . . . . . . . . go 
 
 deaf man . . . . . . . . . . . . . . . . 91 
 
 instinctive effort to avoid danger .. .. .. .. .. 91 
 
 in case of young persons . . . . . . . . . . . . 92 
 
 of person in charge of another and third person . . . . . . 95 
 
 extraneous perils . . . . . . . . . . . . . . 96 
 
 identification .. .. .. .. .. .. .. 97 
 
 ormis of proof of . . . . . . . . . . . . . . . . 98 
 
 function of judge and jury 98 
 
 of deceased person under Lord Campbell's Act . . . . 103 n (c) 
 
 under Employers Liability Act, 1880 . . . . . . . . 192 
 
 imder sec. 2, sub-s. 3, of Employers Liability Act, 1880 . . . . 194 
 
 in case of statutory penalty . . . . . . . . . . 248 n (6) 
 
 excluded under W. 0. Act, 1906 409 
 
 (See Penalty.) 
 
912 Index 
 
 CONTROL— PAGE 
 
 power of, test of who is employer 139 
 
 CORPORATION— 
 
 employer, when notice to, under W. C. Act, 1906 .. 302,601 
 
 COSTS— 
 
 of special case .. .. .. .. .. .. .. .. 435 
 
 where respondent has disclaimed any interest . . . . . . 633 
 
 of interrogatories . . . . . . . . . . . . 636 
 
 arbitrator may deal with .. .. .. .. .. .. 642 
 
 taxation 642,646,651,656 
 
 when respondent has ofiered to submit to an award . . . . 648 
 
 jurisdiction of County Court judge, as to . . . . . . . . 644 
 
 fixed sum may be awarded for . . . . . . . . . . 645 
 
 scale of . . . . . . . . . . . . . . . . • ■ 646 
 
 solicitor's costs . . . . . . . . • . 646 
 
 in formA pauperis .. . . . . . . • • • • 647 
 
 security for 647, 648 
 
 trade union . . . . . . . . . . . . . . . . 649 
 
 solicitor and client . . . . . . . . . . . . 649 
 
 lien for 652 
 
 method of adjusting, where abortive proceedings also taken . . 653 
 
 deduction of . . . . . . . . . . . . . . . . 654 
 
 judgment, when exercised final . . . . . . . • 656 
 
 discriminated . . . , . . . . . . . . . . 656 
 
 whether recoverable imder indemnity . . . . . . . . 694 
 
 COUNCIL OF CONCILIATION— 
 
 committee, whether . . . . . . . . . . . . . . 624 
 
 COUNSEL'S PEES— 
 
 cost of .. .. .. .. .. .. .. .. .. 643 
 
 COUNTY COURT— 
 
 Civil BiU Court in Ireland 128 
 
 funds invested in the name of the registrar of . . . . 330, 660 
 
 duties of ofacers of, under W. C. Act, 1906 . . . . 339, 674 
 
 application of rules of . . . . . . . . . . . . 340, 674 
 
 officers of, to render services under W. C. Act, 1906 .. .. 636 
 
 jurisdiction as to costs . . . . . . . . . . 642 
 
 jurisdiction of generally prevails . . . . 670, 672 
 
 Court fees, what payable . . . . . . . 674 
 
 transfer of proceedings in . . . . . . . . . . 674 
 
 COUNTY COURT JUDGE— 
 
 nominates arbitrator . . . . . . . . . . 336, 630 
 
 question of law submitted to, under W. C. Act, 1906 .. 402,641 
 
 sits as arbitrator only 629, 635, 636, 671 
 
 which, to act 
 
 power of amendment of 
 
 nominee of, how paid . , 
 
 case stated by . . 
 
 must take a note of both law and facts 
 
 refusing to act . . 
 
 appeal from 
 
 case stated to . . 
 
 635 
 635 
 636 
 637 
 640 
 640 
 640 
 641 
 
Index 913 
 
 COUNTY COURT JUDGE— eon«in«e(i page 
 
 refusal o£ voluntary arbitration not condition precedent to 
 
 arbitration by . . . . . . . . . . . . . . 670 
 
 case stated to . . . . . . . . . . . . . . . . 671 
 
 jurisdiction of, how determined . . . . . . . . 671, 673 
 
 substitute f or . . . . . . . . . . . . . . . . 674 
 
 COURSE OF EMPLOYMENT— 369-381 
 
 meaning of under W. C. Act, 1906 369 
 
 COURT PEES— 
 
 when payable . . . . . . . . . . . . . . . . 649 
 
 COVERTURE— 
 
 wife may claim as partial dependant of son . . . . . . 620 
 
 CRANE- 
 
 accident from .. .. .. .. .. .. .. 23 
 
 swinging stone by, over heads of workmen . . . . . . 31 
 
 CRIME— 
 
 employer when liable for agents . . . . . . . . 155, 156 
 
 CRIMINAL LIABILITY— 
 
 of employer, when . . . . . . . . . . . . • ■ 155 
 
 CROWN— 
 
 servant of, as employer not liable under the Employers Liability 
 
 Act, 1880 282 
 
 employment under, included in W. C. Act, 1906 . . . . 437 
 
 except as to naval and military services . . . . . - • ■ 437 
 
 CURATE— 
 
 whether within W. 0. Act, 1906 448 
 
 DAIRYMAID— , , , 
 
 assisting in harvest work, a servant m husbandry .. .. ^/o 
 
 DAMAGES— , , .;, Qi 
 
 measure of, against one keeping back evidence .. .. .. hi 
 
 under Lord Campbell's Act . . 90, 91, 92, 93, 94, 105 n (6), 109-118 
 Scotch law of, where death is caused by accident . . 107 u (a) 
 paid into OoUrt to account of infants 108 n (6) 
 
 '.'. 115 
 
 128, 258 
 
 .. 254 
 
 255 
 
 insurance money 
 
 to the personal estate . . 
 
 in the Sherifi Courts of Scotland 
 
 no double recovery of . . 
 
 Scotch system 
 
 recovery of , at common law and under Employers Liability Act. 
 
 1880, against joint defenders respectively ^56 
 
 for bodily injury, how estimated ^^^ 
 
 excessive, new trial on the ground of • • ■ • • ■ • ■ ^°^ 
 
 recovery of, from stranger, under W. C. Act, 1906 . . 308, 688 
 
 under Employers Liability Act, 1880, and W. C. Act, 1906, a 
 
 limit not a measure 
 
914 Index 
 
 DANGEBOUS COMPOUND— page 
 
 stowed away without notice . . . . . . . . . . • . 53 
 
 DANGEROUS CONDITION OF WORKS— 
 
 liability for aoeident arising from . . . . . . . . . . 22 
 
 blasting accident .. .. .. .. .. .. .. 23 
 
 knowledge of . . . . . . . . . . . . . . . . 25 
 
 arising from the nature of the work . . . . . . 28, 173 
 
 roof out of repair . . . . . . . . . . . . 77 n (6) 
 
 walls and buildiugs . . . . . . . . . . . . . . 173 
 
 manifest .. .. .. .. .. .. .. .. .. 185 
 
 where negligence may be inferred from . . . . . . . . 196 
 
 does not per se raise presumption of negligence . . . . 223 n (c) 
 
 DANGEROUS EMPLOYMENT— 
 
 iaoidents of . . . . . . . . . . . . . . . . 33 
 
 young person engaged in . . . . . . . . . . 39 
 
 DANGEROUS FORCES— 
 
 care required in dealing with . . . . . . . . . . 58 
 
 DANGEROUS OPERATION— 
 
 in work .. .. .. .. .. .. .. .. .. 192 
 
 duty to superintend . . . . . . . . . . . . . . 205 
 
 DANGEROUS WORKS— 
 
 neceissarUy so 28, 173 
 
 DATE— 
 
 of service of notice of injury . . . . .-. . . . . 302, 600 
 
 of stoppage of weekly payment . . . . . . . . . . 576 
 
 DEAF MAN— 
 
 duty of care to . . . . . . . . . . . . . . . . 91 
 
 DEATH- 
 
 caused by accident . . . . . . . . . . . . 101-119 
 
 Scotch rule of damages for, caused by accident . . . . 107 n (a) 
 
 damages for, under Canadian Act . . . . . . . . 108 n (a) 
 
 claim under Lord Campbell's Act, limited to the loss sustained 
 
 by 109 n (a) 
 
 husband entitled to recover loss of household services in respect 
 
 of, of wife 109 n (6) 
 
 " any persons entitled in case of," meaning of words .. .. 289 
 
 of arbitrator 337,623 
 
 of master, seaman, or apprentice leaving no dependants . . 385 
 
 of sole dependant transmits claim to representative . . . . 475 
 
 compensation in the event of . . . . . . . . . . 518 
 
 paragraphs to be read together dealing with compensation for 547-550 
 
 to whom sum payable by way of redemption passes on . . . . 551 
 
 (See Compensation.) 
 
 DEBILITY— 
 
 occasioned by accident, death from supervening cause . . . . 350 
 
 DECEASED EMPLOYER— 
 
 no action against representatives of, under the Act of 1880 . . 281 
 
 DECEASED PERSON— 
 
 negligence inflicting loss on personal estate of . . . . . . 115 
 
Index 
 
 915 
 
 DEDUCTION PROM COMPENSATION— 
 from wages 
 
 out of wages when not actually employed 
 none for unpaid assistance of son . . 
 expenses out of wages . . 
 for contributions to mutual aid fund 
 of successful defendant's costs 
 
 DEFAULT— 
 defined .. 
 
 none in continuing a method not known to be unsafe 
 personal .. 
 of appearance .. 
 
 DEFECT IN CONDITION— 
 common law duty 
 
 under Employers Liability Act, 1880 
 in ways 
 works 
 machinery 
 plant 
 injury must be caused by the defect 
 
 DEFECTIVE SYSTEM- 
 evidence of 
 
 DEFENCES— 
 
 of employer, in action of indemnity 
 
 DEPENDANT— 
 
 may not bring in a joint defendant . . 
 
 DEFICIENT SUPERVISION— 
 imports liability 
 
 DEFINITIONS— 
 
 under Employers Liability Act, 1880 
 
 (And see " Wobds.") 
 
 DEPENDANTS— 
 
 defined under W. 0. Act, 1906 
 
 illegitimate children included 
 
 wife living separate 
 
 what constitutes dependency . . 
 
 child claiming as dependant . . 
 
 character of dependency of illegitimate child 
 
 part dependants and maximum compensation 
 
 " wholly dependent " .. .. .. .. 
 
 death of sole dependant does not pass claim to 
 
 sentative 
 sole dependant, position on death of 
 need not be British subjects . . 
 amount secured to 
 entitled to what compensation 
 application by mother in lifetime of father 
 
 DEPENDENT— 
 who are . . 
 
 how wholly dependent defeats title to claim of partial 
 Scotch decision examined 
 
 PAGE 
 
 519 
 522 
 532 
 533 
 534 
 654 
 
 15 
 
 19 
 
 21,22 
 
 638 
 
 .. 157 
 156-168 
 168-172 
 173-174 
 175-181 
 181-186 
 
 .. 186 
 
 19 n (6), 23 
 
 .. 697 
 
 65 n (6) 
 
 26 
 
 .. 129 
 
 
 320 
 
 462 
 463 
 465 
 
 
 463-468 
 
 
 
 468 
 
 
 
 469 
 
 
 
 472 
 
 474 
 
 518 
 
 547 
 
 repre- 
 
 
 
 
 475 
 
 
 
 475 
 
 
 
 476 
 
 
 
 517 
 
 
 
 518 
 
 
 
 620 
 
 
 320, 
 
 462 
 
 
 472 
 
 473 
 
 473 
 
916 Index 
 
 PAGE 
 
 DETENTION OF SHIP 697 
 
 under see. 11 W. 0. Act, 1906 697 
 
 under Shipowners Negligence (Eemedies) Act . . . . . . 698 
 
 DISABILITY— 
 
 under W. C. Act, 1906 552 e« sej. 
 
 payment into Court on account of infant under Employers 
 
 Liability Act 883 
 
 (See Incapacity.) 
 
 DISABLEMENT— 
 
 sustentation to workmen in case of total . . . . . . . . 652 
 
 payment during partial . . . . . . 558 
 
 for work, period of . . . . . . . . . . . . . . 568 
 
 DISCLAIMER— 
 
 of interest in arbitration . . . . . . . . . . . . 633 
 
 DISCBETION— 
 
 judicial, bow exercised . . . . . . . . 588 
 
 what is 637 
 
 DISEASE— 
 
 gradual development of . . . . . . . . . . . . 858 
 
 different signification of word in Act . . . . . . . . 361 
 
 where proved not to be gradually contracted . . . . . . 363 
 
 DISOBEDIENCE— 
 
 when not serious and wilful misconduct . . . . . . . . 408 
 
 DOCKYARDS— 
 
 Government, compensation in . . . . . . . . . . 283 
 
 DOCUMENTS- 
 
 production of, before lay arbitrator . . . . . . . . . . 624 
 
 DOG— 
 
 that has had his bite classed with fercB natwriB risk of employ- 
 ment .. .. .. .. .. .. .. .. .. 50 
 
 DOMESTIC SERVANT- 
 
 not within Employers Liability Act, 1880 . . . . . . . . 267 
 
 tests of 267 
 
 within the W. C. Act, 1906 454 
 
 DOUBLE RECOVERY- 
 
 none 415,688 
 
 DRIVER OP TRAMCAB— 
 
 not a labourer under Employers Liability Act, 1880 . . . . 270 
 
 DRUNKEN MAN— 
 
 duty of care towards . . . . . . . . . . . . 90, 407 
 
 DRUNKENNESS— 
 
 may be " serious and wilful misconduct " .. .. .. .. 406 
 
 DULY QUALIFIED MEDICAL PRACTITIONER— 
 
 interpretation of . . . . . . . . . . . . . . 678 
 
Index 
 
 917 
 
 PAGE 
 15 
 
 15 n 
 15 n 
 15 u 
 20 n 
 
 DUTY— 
 
 defined .. 
 
 legal, not to be confounded with moral , . 
 
 one bound by, cannot discharge himself by his own act 
 
 not imposed by one's wrongfiU act . . 
 
 in providing machinery 
 
 of employer to safeguard servant from personal default 
 
 to inspect 
 
 to periodically test things which deteriorate in condition 
 
 where statutory obligation . . 
 
 to young persons (a/nd see Yoxjnq Pebsonb) 
 
 of employer to a volunteer 
 
 of examining articles to be used 
 
 and negligence, notions of, correlative 
 
 to avert mischief, test of liability . . 
 
 violation of, what is considered 
 
 none to alter mode of working which might interfere with 
 
 possible trespasser . . 
 to take care, what 
 increases with danger . . 
 
 rule of, progressivb with increase of facilities for taking care 
 statutory, breach of, actionable 
 standard of, at common law . . 
 difference between, required of ordinary man and that required 
 
 of one professing skill 
 to render premises safe 
 
 to inspect property to ensure against deterioration 
 distinction between, to the employer and to the public 
 voluntary act, bearing of on duty . . 
 owing to society 
 
 as to adopting new-fashioned machinery . . 
 imposed by Statute for benefit of any particular person may be 
 
 waived 294 n (6) 
 
 [3 
 
 6) 
 
 \a) 
 
 21 
 
 26 
 
 26 
 
 35 
 
 , 39, 40 
 
 . 45,46 
 
 49 
 
 49 
 
 53 n (o) 
 
 54 
 
 57 
 57 
 58 
 59 
 61 
 62 
 
 62,63 
 78 
 77 n (a) 
 . 81 n 
 81 
 91 n (e) 
 . 177 
 
 EARNINGS— 
 
 
 meaning of under Employers Liability Act, 1880 . . 
 
 .. 239 
 
 under W. 0. Act, 1906 
 
 519, 572 
 
 average weekly, how estimated 
 
 . . 519 
 
 earning capacity 
 
 531 
 
 average weekly 
 
 521 
 
 deductions from 
 
 522, 533 
 
 injury without loss of . . 
 
 . . 559 
 
 loss of prospective 
 
 .. 571 
 
 EFFECTIVE CAUSE— 
 
 a portion of the proximate cause 
 
 {See Oadsb and Proximate Cause.) 
 
 ELECTION OF EEMEDY— 
 
 (See Option) 
 
 EMEBGBNCY— , ^ ^. 
 
 duty of master to have some one ready to act m . , 
 action by workman on an 
 
 EMPLOY— 
 defined .. 
 
 64 n (6) 
 
 414-426 
 
 151 
 389 
 
 10 
 
918 Index 
 
 EMPLOYEE.- PAGE 
 
 new duties imposed on . . . . . . . . . . 3 
 
 employer's action against workmen . . . . . . . . 4 
 
 special meaning of the term . . . . . . . . ■ ■ . . 9 
 
 relation of, to contractor . . . . . . . . . . 11, 284 
 
 common employment . . . . . . . . . . > . . . . 13 
 
 general duty of . . . . . . . . . . . . . . 19 
 
 not liable for ordinary risks , . . . , . . . . . . . 20 
 
 to furnish tools and machinery reasonably fit . . . . . . 20 
 
 not liable for risks inseparable to the work . . . . . . 20 
 
 liable for personal default . . . . . . . . . . . . 21 
 
 liable for partner's default . . . . . . . . . . . . 22 
 
 causing gas explosion . . . . . . . . . . . . . . 22 
 
 personal default of, what . . . . . . . . . . . . 22 
 
 liability of, for incompetency of servant 23 
 
 working with workmen . . . . . . . . . . 25 
 
 liable for deficient supervision .. .. .. .. .. 26 
 
 liable for withholding information of dangerous property of 
 
 thing dealt with . . . . . . . . . . . . . . 27 
 
 staS of , confessedly insufficient .. .. .. .. .. 27 
 
 must provide against deterioration of machinery or plant . . 28 
 
 not liable for neglect of workman to use apparatus supplied . . 28 
 not liable for machinery unskilfully handled by competent 
 
 workmen .. .. .. .. .. .. .. .. 28 
 
 promise by, to take precautions . . . . . . . . . . 29 
 
 duty of, where statutory obligation (see Statutory Obligation) 35 
 
 duty of, to young persons . . . . . . . . . . . . 39 
 
 not liable for injury received through common employment . . 41 
 liable to workmen of other eniployers co-operating in the same 
 
 work .. .. .. .. .. .. .. .. .. 42 
 
 not liable to workman of a contractor (see Cohtbactob) .. 43 
 
 duty to volunteer . . . . . . . . . . . . . . 45 
 
 defined tmder Employers Liability Act, 1880 . . . . 129, 265 
 
 service of . . . . . . . . . . . . . . . . 138 
 
 control by . . . . . . . . . . . . . . . . 139 
 
 tests to determine who is . . . . . . . . . . . . 139 
 
 •only liable for acts within the scope of employment . . . . 141 
 
 delegating authority 230 
 
 infant 280 
 
 deceased .. .. .. .. .. .. .. .. .. 281 
 
 lunatic 282 
 
 Crown 282 
 
 not liable to contractor as to workman . . . . . . . . 284 
 
 remedies against . . • . . . . . . . . . . . . 292 
 
 defined under W. C. Act, 1906 319,477 
 
 not liable both independently of and also under Act of 1880, nor 
 
 under Act of 1906 412,688 
 
 liability of , for partner 413 
 
 who are members of famUy of . . . . . . . . . . 462 
 
 who is, under W. 0. Act, 1906 477 
 
 new principle under W. 0. Act, 1906 477 
 
 presumption where servant is lent .. .. .. .. 478,479 
 
 crown as . . . . . . . . . . . . . . . . 479 
 
 when a foreigner, position under Act of 1906 . . . . . . 4'79 
 
 insurance and insolvency of . . . . . . . . . . . . 589 
 
 position of, when bankrupt, as regards compensation to injured, 
 
 workmen 582,583 
 
 procedure as to, insurers under bankruptcy of . . . . . . 583 
 
 policy of insurance against accident, stamp for . . . . . . 589 
 
Index 
 
 919 
 
 EMPLOYEE— continued 
 
 bankruptcy, where no insurance of . . 
 
 notice o£ injury served on under W. .0. Act, 1906 . . .'. 
 
 may demand arbitration under Workmen's Compensation Act, 
 
 1906 
 
 defences of 
 
 {See Workman.) 
 
 EMPLOYEE AND WOEKMAN— 
 {See Mastejs and Sebvaht.) 
 
 EMPLOYEES LIABILITY ACT, 1880— 
 position ofi in the development of the law 
 course of legislation leadmg up to . . 
 contracting out of {see Contracting out op) 
 title, preamble and marginal notes . . 
 object of Act 
 definitions 
 
 governing principles of 
 service of the employer 
 scope of employment . . 
 defect in the condition 
 negligence of employer 
 ways 
 works 
 machinery 
 plant 
 
 connected with or used in the business of the employer 
 contributory negligence xmder 
 statutory defence, when knowledge of defect is . . 
 volenti non fit injuria .. 
 reasonable time 
 notice of defect . . 
 superintendence 
 
 negligence in superintendence . ; 
 
 • injury through conforming to orders 
 order or directions 
 injury resulting from conformity 
 bye-laws .. .. 
 particular instructions 
 limit of compensation under .. 
 charge or control of signal, etc., on a railway 
 compensation, how estimated 
 
 no deductions for strikes or sickness from compensation 
 voluntary payment 
 time limit 
 notice 
 
 penalty claiming by, under or through 
 trial of actions . . 
 
 notice of action in respect of injury . . 
 defect or inaccuracy under . . 
 rights of workmen under 
 
 efieot of, upon liability for injury caused by wilful acts .. 
 compared as to advantage of using with common law and W. 
 
 Act, 1908. 
 
 compared as to notice with W. 0. Act, 1906 
 
 EMPLOYMENT— 
 
 accident arising out of, and in the course of 
 question of fact ., 
 
 123, 
 
 page 
 590 
 600 
 
 609 
 697 
 
 i 
 4 n (c) 
 35 
 123 
 134 
 129 
 133 
 138 
 141 
 156-168 
 159 
 168 
 173 
 175 
 181 
 187 
 192 
 192 
 193 
 193 
 194 
 194 
 197 
 207 
 208 
 223 
 224 
 229 
 238 
 239 
 240 
 241 
 241 
 242 
 242 
 248 
 251 
 259 
 260 
 290 
 414 
 
 438 
 601 
 
 369 
 371 
 
920 Index 
 
 EMPLOYMENT— c(»i««»«e(J page 
 
 what is " out of and in the course of " .. .. 372 
 
 going to, iu a way forbidden . . . . . . . . . . . . 374 
 
 " course of employment " . . . . . . . . . . 377 
 
 on adjacent premises . . . . . . 377 
 
 full wages in . . . . . . . . . . . . 391 
 
 casual . . . . . . . . . . . . . . . . 455, 520 
 
 not for purposes of employer's trade or business . . . . . . 459 
 
 for the standard period . . . . . . . . . . . . 520 
 
 intermittent . . . . . . . . . . . . . . . . 523 
 
 means continuous . . . . . . . . . . . . . . 524 
 
 for less than a week . . . . . . . . . . . . . . 528 
 
 "actual" 530 
 
 under W. 0. Act, 1906, only under the same employer . . 537, 538 
 
 ofier of, evidence of earning capacity . . . . . . 566, 575 
 
 (See Scope of Employment.) 
 
 ENGINE DBIVEB— 
 
 leaving engine . . . . . . . . . . . . . . 374 
 
 ENGINEER ON STEAMER— 
 
 not within New South Wales Employers Liability Act . . . . 278 
 
 ENGINEERING WORK— 
 
 stacking of rails is, " on, in, or about " .. .. .. 505 
 
 EPILEPTIC PIT— 
 
 occasioning fall . . .. .. .. .. .. .. 352 
 
 ESTOPPEL— 
 
 wrongly alleged 351 
 
 what is waiver of six months' limit . . . . . . . . . . 617 
 
 EVIDENCE- 
 
 arbitrator bound by rules of 629 
 
 EVIDENCE OP NEGLIGENCE— 
 
 non-adoption of precaution . . . . . . . . . . . . 19 
 
 adoption of new plan, per se no . . . . . . . . 19 n (6) 
 
 in case of incompetency of servant . . . . . . . . . . 23 
 
 failure to guard dangerous machinery required to be fenced by 
 
 Statute .. .. .. .. .. .. .. .. 25 n 
 
 presumption of knowledge of danger . . . . . . . . 32 
 
 where workman enters on dangerous employment . . . . 38 
 
 where risk is superadded to employment . . . . . . . . 38 
 
 where statutory duty is unperformed . . . . . . 38 
 
 previous accidents at the same place and in similar circum- 
 stances . . . . . . . . . . . . . . 60 n (c) 
 
 invariable use raises a presumption of suitability for purposes 
 
 for which thing is used . . . . . . . . . . 61 n (o) 
 
 onus 72, 75, 76 
 
 ■vihsA prvmd facie .. .. .. .. .. .. .. 74 
 
 reasonable . . . . . . . . . . . . . . . . 74 
 
 fact of happening of accident . . . . . . 74 n (6) 
 
 where 09M4S on defendant .. .. .. .. .. 'r5n(c) 
 
 equally balanced evidence . . . . . . . . . . . . 76 
 
 where service is gratuitous . . . . . . . . . . 77 
 
 must be well defined .. 78 
 
 some specific act . . 78 
 
 scintilla not sufacient . . . . . . . . . . 78 n (a) 
 
Index 921 
 
 EVIDENCE OP NEGLIGENCE— contmiietJ page 
 
 "reasonable" 78n(c), 80 
 
 must raise a probability of negligence . . . . . . . . 80 
 
 in not discharging duty to employer . . . . 80 n (c) 
 
 where duty to general public . , . . . . . . 81 
 
 where voluntary aot is undertaken . . . . . . . . 81 
 
 presumption against one destroying evidence .. ..81,82 
 
 for the jury . . . . . . . . . . . . . . . . 82 
 
 must be directly connected with the accident . . . . . . 83 
 
 where conflicting, eSect for the jury .. .. .. ..82,86 
 
 where self-destruotive . . . . . . . . . . . . . . 83 
 
 OWMS of , proving contributory negligence ,. .. .. ..86,89 
 
 defect in the condition of thing when . . . . . . . . 160 
 
 inferential .. .. .. .. 177 
 
 dangerous state of works is not per se .. .. 223 n (c) 
 
 EXAMINATION— 
 
 by medical man . . . . . . . . . . . . 675 
 
 workman cannot impose terms as to his . . . . . . 678 
 
 employer may require workman's . . . . . . . . . . 680 
 
 obstructing .. .. .. .. .. 682 
 
 demanding, an admission of liability . . . . . . . . 683 
 
 judge may order .. .. .. .. 685 
 
 how far certificate conclusive . . . . . . . . 686 
 
 EXCAVATION— 
 
 unfenced . . . . . . , . . . . . . . . . . 87 n (b) 
 
 EXECUTION— 
 
 under W. 0. Act, 1906 668 
 
 EXISTING CONTRACTS— 
 
 provisions as to 322,431,702 
 
 EXPENSES— 
 
 out of wages, deduction for .. .. .. .. .. 531,532 
 
 niaximum . . . - . . • • • . . . 551 
 
 funeral .. .. 550,579 
 
 recovery of .. .. .. .. .. .. 582 
 
 FAMILY- 
 
 who are members of employer's 462 
 
 boy contributing to expenses of . . . . 470 
 
 FATAL ACCIDENTS ACT— 
 
 (See CampbbiiL's (Lobd) Act.) 
 
 FATHER— 
 
 rights of, against employer of child in dangerous employment 40 
 
 right of, to recovery for negligence causing death of child . , 110 
 
 FAULT- 
 
 when presumed . . . . . . • • • • • • • • ' * 
 
 (See Cabe, Default, Duty, and Nbgiigenoe.) 
 
 FEES— 
 
 none payable in County Court under W. C. Act, 1906, prior to 
 award .. .. .. .. ■■ •• •• ■• ■• ^'^^ 
 
 B.B.L. 3 
 
922 
 
 Index 
 
 FELLOW-SERVANTS— page 
 
 defiBed 14 
 
 who are 14 n (d) 
 
 neglect of duty by, a risk of the employment 14 
 
 failure by, to use appliances provided is a risk of the employ- 
 ment 28 
 
 co-operating in work at the same place and time to a common 
 
 result 
 who are not 
 
 42 
 43 
 
 PENCE— 
 
 duty to, machinery 
 
 24 
 
 PINE— 
 
 not afiected by W. C. Act, 1906 .. .. - .. 
 (See Compensation and Penalty.) 
 
 PIREMAN— 
 
 outside New South Wales Employers Liability Act 
 
 PIBST CHARGE— 
 
 workman to have, on money due from insurers . . 
 
 301, 427 
 
 269 
 
 307, 588 
 
 POOD— 
 
 portion of earnings 
 
 534 
 
 POREIGN EMPLOYER— 
 
 position of, under Act of 1906 
 
 479 
 
 POREIGN SAILOR^ 
 
 how far within W. C. Act, 1906 
 
 458 
 
 POREIGN WORKMAN— 
 
 position of, vmder Act of 1906 
 
 FORMS- 
 
 under Employers Liability Act, 1880 
 
 W. 0. Act, 1906, rules 1907 
 
 1908 
 
 tmder Regulations as to Medical Referees 
 
 by Registrar of Priendly Societies . . 
 
 PRAUD— 
 
 under Industrial Diseases section of W. C. Act, 1906, not cog- 
 nizable unless in writing . . 
 
 480 
 
 707 
 767 
 841 
 875 
 
 358 
 
 PRIENDLY SOCIETIES ACT— 
 provisions of, applicable to . . 
 requirements of Registrar under 
 form of Registrar's Certificate 
 duration of certificate . . 
 
 PRIGHT— 
 
 effect of, as a cause of damage 
 
 (See Accident.) 
 
 PULL WAGES— 
 
 and " average weekly earnings " discriminated 
 
 427 
 428 
 432 
 433 
 
 84 
 
 892 
 
Index 923 
 
 FUNERAL EXPENSES— page 
 
 under Lord Oampbell's Act not recoverable . . . . 105 n (6) end 
 
 how provided for under W. 0. Act, 1906 550, 551-552 
 
 who may recover . . . . . . . . . . . . . . 550 
 
 EUSE— 
 
 firing, when serious and wilful misconduct 411 
 
 GANGBE— 
 
 who is 200 n (a) 
 
 GAEDENER— 
 
 a menial servant . . . . . . . . . . . . . . 267 
 
 GAS EXPLOSION— 
 
 caused by employer not a risk of the employment . . . . 22 
 
 a duty of greatest care to prevent . . . . . . . . . . 59 
 
 caused by company's defective pipe renders them liable . . 64 
 
 GOVERNMENT DOCKYARDS— 
 
 compensation in .. .. .. .. .. ., .. 283 
 
 GOVERNMENT EMPLOYES— 
 
 under Employers Liability Act . . . . . . . . . . 283 
 
 under W. C. Act, 1906 437 
 
 "GRADE"— 
 
 meaning of, under W. 0. Act, 1906 537 
 
 GRANDCHILD— 
 
 entitled as dependant . . .. .. .. .. .. 321,462 
 
 GRATUITIES— 
 
 to be brought into account under Act of 1906 . . . . . . 393 
 
 GUEST— 
 
 rights of, on premises . . . . . . . . . . . . . . 292 
 
 HAIRDRESSER— 
 
 not a workman engaged in manual labour 272 
 
 ' HANDICRAFTSMAN- 
 
 distinguished from labourer 275 
 
 defined 276 
 
 HEAD CONTRAOTOR- 
 
 liabilityof 305,481 
 
 (See PsiNciPAr,.) 
 
 HEAT STROKE— 
 
 death through ^^° 
 
924 IndAX 
 
 HIGHWAY— PAGE 
 
 passenger injured by fall of something from house . . . . 46 
 
 partly covered with ioe . . . . . . . . . . . . 65 
 
 washing van on . . . . . . . . . . . . . . 66, 70 
 
 lime rubbish in . . . . . . . . . . . . . . . . 67 
 
 water spouting on . . . . . . . . . . . . . . 68 
 
 res i^ia logmtv/r does not apply to accident on . . . . . . 75 n 
 
 obstruction in .. .. .. .. .. .. .. .. 85 
 
 private individual must not abate nuisance on, of his own 
 
 authority 89n(a) 
 
 HIRE— 
 
 ofplant .. .. .. .. .. .. .. 184 
 
 HOARDING— 
 
 negligently erected 70 n (a) 
 
 illegally erected 70 n (a) 
 
 HOLIDAY— 
 
 effect of taking, on compensation .." .. .. .. .. 536 
 
 HORSE- 
 
 vicious .. .. .. .. .. .. .. .. .. 31 
 
 stopping runaway " 47 n (6) 
 
 lashing out and injuring man . . . . . . . . . . 51 
 
 slipping on ioe on highway .. .. .. 65 
 
 frightened .. .. .. .. .. .. .. _' 67 
 
 kicking .. .. .. .. .. .. .. .. " 73 
 
 unattended .. .. .. .. .. .. ., "_ 73 
 
 runaway, knocking down foot passenger .' .. 76 
 
 died from sudden fright .. .. .. .. .. 84 n (6) 
 
 injiired while being led out of mews .. .'. .'. 87 n {6) 
 vicious, may be plant, and so within Employers Liability Act, 
 
 1880 182 
 
 HOTEL— 
 
 not on, in, or about a railway, under W. 0. Act, 1906 . . . . 502 
 
 HOUSE— 
 
 burned by lightning 51 
 
 HOUSE OF LORDS— 
 
 appeal to, from Scotland . . 702 
 
 ICE- 
 
 on highway gg 
 
 horse slipping on . . . . . | ] " " gg 
 
 ILLEGITIMATE CHILD— 
 
 within W. 0. Act, 1906 4g3 
 
 character of dependency of .' . ' ' " ] 4g9 
 
 ILLITERATE PERSON— 
 
 particulars and request for arbitration by 622 
 
 IMMEDIATELY— 
 
 signification of 67 n (a), 71 n (c) 
 
Index 
 
 925 
 
 IMPRACTICABLE— page 
 
 meaning of 365 
 
 IMPULSIVE ACT— 
 
 not necessarily wUful misoonduot 408 
 
 INACCURACY— 
 
 does not vitiate notice . . . . . . . . . . 260 
 
 IN THE COURSE OP EMPLOYMENT 369-391 
 
 INCAPACITY— 
 
 of arbitrator .. .. .. .. .. 337 
 
 payment during total, Tinder Act of 1906 .. .. .'.' '552,583 
 
 partial 558,559 
 
 for work — what . . . . . . . . . . . . 559 
 
 injury without incapacity not within the Act . . '.'. 559 
 
 INCOMPETENCY— 
 
 liability of employer for incompetent servant . . . . 23, 54 n (a) 
 knowledge by one servant of, of another 32 
 
 INDEMNITY— 
 
 imder s. 8 of Act of 1906 . . . . . . . . . . 359 
 
 of principal under W. C. Act, 1906, s. 4 512 
 
 claim to . . . . . . . . . . . . . . . . . . 513 
 
 requires deed stamp . . . . . . . . . . . . . . 590 
 
 from third person . . . . . . . . . . . . . . 687 
 
 provisions as to . . . . . . . . . . . . . . . . 687 
 
 of elnployer under the W. C. Act, 1906, s. 6 687 
 
 defences to, action for . . . . . . . . . . . . 697 
 
 INDUSTRIAL DISEASES— 
 
 anthrax .. .. .. .. .. .. .. .. .. 347 
 
 ankylostomiasis .. .. .. .. .. .. .. 356 
 
 new classification of, under the W. C. Act, 1906 .. .. 355, 368 
 
 defined 356 
 
 conditions precedent to claim under . . . . . . . . 356 
 
 fraud under s. 8 not in writing . . . . . . . . . . 358 
 
 workman may recover against last employer . . . . . . 358 
 
 indemnity and contribution among employers . . . . 359, 360 
 
 onus altered . . . . . . . . . . . . . . . , 364 
 
 surgeon's certificate, appeal from . . . . . . . . . . 364 
 
 16 n (b) 
 
 108 n (6) 
 280 
 
 INEVITABLE ACCIDENT— 
 what 
 
 INFANT— 
 
 payment into Court on account of . . 
 
 ^imd/ocie incapable of contracting 
 
 receipt of . . . . '.. .. . . . . • . . . 592 
 
 {See Child ; also Young Pbbson.) 
 
 INFANT EMPLOYER— 
 
 no action against, under Employers Liability Act; 1880 . . 281 
 
 INFIRMITY, GROWING, NOT A GROUND FOR DIMIN- 
 ISHED COMPENSATION 566 
 
 INFIRMITY— 
 
 or old age, efiect, of, on compensation . . . . . . . . 566 
 
926 Index 
 
 INJURY— PiOE 
 
 for which compensation is payable . . . . . . ■ . ■ • 49 
 
 resulting from conforming to orders . . . . • . . • 207 
 
 service of notice of, under Employers Liability Act, 1880 259, 262 
 
 by accident . . . . . . . . . . . . • • • ■ 346 
 
 without incapacity . . . . . . . . . . - ■ • ■ 559 
 
 service of notice of, under W. C. Act, 1906 600 
 
 INSPECTION— 
 
 duty of ■ 26, 77 n (a) 
 
 INSTINCTIVE ACT— 
 
 no liability f or . . . . . . . . . . . . ■ • • • 52 
 
 does not disentitle for recovery against wrongdoer causing . . 91 
 
 INSUBANCE— 
 
 money receivable from, not to be taken into account in esti- 
 mating compensation at common law . . . . . . . . 114 
 
 under Lord Campbell's Act assimilated with common law rule 114 
 
 bankrupt employer under W. C. Act, 1906, and insurance money 582 
 
 workman to have employers' rights vested . . . . . . . . 583 
 
 workman to have first charge on insurance money . . . . 584 
 
 employers rights vest in workman against insurance company . . 585 
 
 proceedings under section not an arbitration under Act . . 586 
 
 therefore appeal to Divisional Court . . . . . . . . 586 
 
 application of workman, how made . . . . . . . . ' 586 
 
 rights of insurance companies . . . . . . . . . . 587 
 
 condition of workman's right i . . . . . . . . . . 589 
 
 not " a policy of insurance against accident " within section 98 
 
 of Stamp Act, 1891 589 
 
 INTERMITTENT EMPLOYMENT 458 
 
 (See Casuai. Labour.) 
 
 INTERPRETATION— 
 
 of words of an Act of Parliament . . . . . . . . . . 362 
 
 rule where words are ambiguous .. .. .. .. .. 362 
 
 INTERROGATORIES— 
 
 power to give leave to deliver under W. C. Act, 1906 . . . . 636 
 
 cost of .. .. .. .. .. .. •■ .. .. 636 
 
 INVESTMENT— 
 
 of compensation under the W. C. Act, 1906 . . . . . . 581 
 
 of children's share in award against widow . . . . . . 581 
 
 INVITATION— 
 
 on premises, no concealed danger .. .. .. .. 97 
 
 {See License.) 
 
 INVOLUNTARY ACT— 
 
 not negligence . . . . . . . . . . . . . . . . 91 
 
 IRELAND— 
 
 Civil BiU Court in Employers Liability Act, 1880 . . . . 128 
 provisions as to application of W. C. Act, 1906, to . . 335, 582 
 
 money on deposit in Post Of&ce Savings Bank in .. .. 335 
 
 application of terms in schedule to . . . . . . . . . . 342 
 
Itidex 927 
 
 PAGE 
 
 IRRELEVANT NEGLIGENCE 385 
 
 JOINT WRONGDOERS— 
 
 liable for the whole injury .. .. .. .. .. 64 
 
 rule of contribution between . . . . . . . . . . 65 n (a) 
 
 master and servant when . . . . . . . . . . . . 154 
 
 liability of 696 
 
 (See Wrongdoer.) 
 
 JOURNEYMAN— 
 
 who is 274 
 
 distinguished from labourer . . . . . . 274 
 
 (See Workman.) 
 
 JUDGMENT— 
 
 against two defendants under Employers Liability Act, 1880, 
 
 and at common law, how entered . . . . . . 255 n (6) 
 
 finality of, as to costs . . . . . . . . . . . . 656, 660 
 
 JUDGMENT SUMMONS— 
 
 award enforced by . . . . . . . . . . 668 
 
 JURISDICTION OF COUNTY COURT 670 
 
 JURY— 
 
 case tried with, under Employers Liability Act, 1880 . . 127, 258 
 
 not summoned under W. G. Act, 1906 . . . . . . . . 623 
 
 KITCHEN WOMAN— 
 
 may in some circumstances be included as a servant in husbandry 273 
 
 KNOWLEDGE— 
 
 of dangerous incidents of work 
 
 what is .. 
 
 when presumed at common law 
 
 where presumed 
 
 actual, with full appreciation of risk, effect of 
 
 increase of, increases duty 
 
 amount of, required by common law 
 
 of negligent act of another, effect of . . . . 
 
 when peculiarly within the power of one of two parties 
 
 of defect, what . . 
 
 when a statutory defence 
 
 distinguished from notice 
 
 that servant not bound to conform 
 
 30 
 
 31 
 
 32 
 
 32 
 
 37 
 
 59 
 
 62 
 
 66 n (d) 
 
 72 
 
 191 
 
 .. 192 
 
 .. 195 
 
 210 et seq,. 
 
 LABOURER UNDER EMPLOYERS LIABILITY ACT, 1880- 
 
 defined • ola 
 
 not confined to mere hedger and ditcher ^oo 
 
 test of .. .. .. •• •• ■• 
 
 (See Workman.) 
 
 borrowed by workman on his own account, not plant under 
 Employers Liability Act, 1880 
 
 LATENT DEFECT- ^„ 
 
 in machinery 
 
 271 
 
 183 
 
928 IiiAex 
 
 LEAD POISONING— page 
 
 and sequelae, an industrial disease under W. 0. Act, 1906 . . 356, 365, 366 
 (And see Industrial Disbabbs.) 
 
 LEAK. IN PIPE— 
 
 of water company . . . . . . . . . . . . • • 61 
 
 LEAVE TO AMEND— 
 
 claim for compensation .. .. .. .. .. •• 635 
 
 LEGAL PERSONAL EEPRESENTATIVE— 
 
 under Lord Campbell's Act 
 
 who is tinder Employers Liability Act, 1880 
 
 " workman " includes .. 
 
 of sole dependant 
 
 in case of workman's death payment to be made to 
 
 compensation paid to, not part of the estate 
 
 payment of sum awarded as compensation to 
 
 108, 290 
 .. 289 
 280, 462, 579 
 .. 475 
 579 
 .. 579 
 .. 580 
 
 must file particulars of dependants in request for arbitration . . 620 
 
 LENDING WORKMAN 139,478 
 
 LBTTEI^- 
 
 registered . . . . . . . . . • . • ■ . ■ . 262 
 
 not registered . . . . . . . . . j . . . . . . 263 
 
 evidence of postiiig . . . . . . . . . . . . 264 
 
 insufSoient address . . . . . . . . . . . . . . 265 
 
 LIABILITY— 
 
 declaration of . . . . . . . . . . . . . . 564 
 
 may be submitted to arbitration 622 
 
 LICENSEE— 
 
 duty to . . . . . . . . . . . . . . . . 57 
 
 rights of , on premises .. .. .. 292 
 
 mere, rights of . . . . . . . . . . . . . . . . 293 
 
 LIEN— 
 
 for costs under W. C. Act, 1906, none . . . . . . . . 340 
 
 unless awarded . . . . . . . . . . . . . . . . 652 
 
 LIGHT EMPLOYMENT— 
 
 offer of, to workman . . . . . . . . . . . . . . 569 
 
 LIGHTNING— 
 
 destroying house . . . . . . . . . . . . 51 
 
 LIMIT OP COMPENSATION— 
 
 under Employers Liability Act, 1880 238 
 
 under W. C. Act, 1906 438,552 
 
 LOCOMOTIVE ENGINE- 
 
 what is 234 
 
 LODGING— 
 
 board and lodging . . . . . . . . . . . . . . 533 
 
 LORD CAMPBELL'S ACT— 
 see Campbell's (Lord) Act 
 
Iiidex 929 
 
 LUCIPEB MATCH— page 
 
 igniting and causing explosion in mine 399 
 
 carried by miner . . . . 399 
 
 LUNATIC— 
 
 money paid into Court, on account of infant, or . . . . 108 n (6) 
 
 LUNATIC EMPLOYER— 
 
 when liable under Employers Liability Act, 1880 . . . . 282 
 
 MACHINEBY— 
 
 duty of employer to provide fit . . 20 n (a) 
 
 insufficient .. .. .. .. .. .. .. ,. 22 
 
 personal default of employer in respect of . . . . 22 
 
 statutory duty to fence, neglected . . . . 24 
 
 cleaning in a manner from which accident ensues . . . . 24, 39 
 
 extent of liability for personal default 25 
 
 failure to guard dangerous, per se evidence of negligence 25 n (/) 
 
 defective through deficient supervision .. .. .. .. 26 
 
 improper, when employer not liable for . . . . 26 
 
 . deterioration of . . . . . . , . . . . . . . 28 
 
 promise to take precautions as to . . . . . . 33 
 
 no obligation to improve the condition of . . . . . . 33 
 
 defective management of good . . . . . . . . . . 34 
 
 risk from open and palpable . . . . . . . . 37 
 
 defect subsequently apparent .. ;. -. . .. .. 38 
 
 young person engaged on . . . . . . . . . . . . 39 
 
 projecting above level . . . . . . . . . . 78 
 
 child's finger crushed in . . . . . . . . . . . . 94 
 
 omitting precaution against possible defect in, does not dis- 
 entitle workman to recover . , . . . . . , . . 98 
 
 defective under sec. 1 of the Employers Liability Act, 1880 . . 175 
 
 machine, what is a . . . . . . . . . . . . . . 175 
 
 latent defect 177 
 
 defective, onus .. .. .. .. .. .. .. .. 177 
 
 latest inventions . . . . . . . . . . . . . . 177 
 
 deterioration of . . . . . . . . . . . . . . . . 178 
 
 specific defect in . . . . . . . . . . . . . . 178 
 
 no warranty of .. .. .. .. .. .. 178 n (c) 
 
 entrusted to unskilled workmen . . . . . . . . 180 
 
 includes any driving strap or band by Factory and Workshop 
 
 Act, 1901 181 
 
 starting machinery with insufficient warning . . . . . . 216 
 
 cleaning, while in motion . . . . . . . . . . . . 217 
 
 worked by mechanical power - . . . . . . . . . . 511 
 
 MALINGERING- 
 
 where workman suspected of, under W. C. Act, 1906 . . . . 680 
 
 MANUAL LABOUR— 
 
 distinguished from manual work . . . . . . 268, 454 
 
 what is 268 
 
 engaged in, signification of words '.. .. .. .. .. 273 
 
 under W. C. Act, 1903 454 
 
 MARGINAL NOTE— 
 
 effect of, in interpretation of Act of Parliament . . . . 123 n (6) 
 
930 Index 
 
 MASTER AND SERVANT— page 
 
 changes in the relationship of . . . . . . . . . • 3 
 
 relation to persons outside the relation . . . . . . . . 4 
 
 action for inducing servant to break his contract . . . . . - 4 
 
 relation of employer and workman or master and servant con- 
 trasted . . . . . . . . . . . . ■ . . . . ■ ■ 5 
 
 limits of employment . . . . . . . . . . • . . . 10 
 
 leaving work without excuse . . . . . . . . . . . . H 
 
 owner and pilot not . . . . . . . . . . . . 14 n (a) 
 
 general duty of master to servant . . . . . . . . . . 20 
 
 incompetency of servant .. .. .. .. .. .. 23 
 
 order to do a thing requiring extraordinary care and skill . . 50 
 
 incidents of the relation . . . . . . . . . . . . 142 
 
 test of existence of relation of .. .. .. .. .. 139 
 
 secret instructions . . . . . . . . . . . . . . 142 
 
 liability of master for servant's tortious acts . . . . . . 145 
 
 acts done for the purpose of advancing master's business 145, 148 
 
 forbidden consequences following on permitted acts . . . . 148 
 
 wilful acts done in the master's interest . . . . . . . . 149 
 
 negligent act in course of employment .. .. .. .. 149 
 
 wilful trespass .. .. .. .. .. .. .. .• 150 
 
 act outside employment .. .. .. .. .. .. 150 
 
 emergency . . . . . . . . . . . . . . . . 151 
 
 act not lawful for master to do, done by servant . . . . . . 152 
 
 servant no implied authority to vindicate justice . . . . . . 153 
 
 implied authority of servant to protect property . . . . . . 153 
 
 injured person cannot successively obtain compensation against 
 
 both 154 
 
 master not generally criminally liable for act of servant . . 155 
 
 sale in shop by servant, when master responsible for . . 156 n (a) 
 
 MASTER OP SHIP— 
 
 within W. 0. Act, 1906 450 
 
 MAXIMS— 
 
 Actio personalis moritur cum persond .. .. .. 101, 266 
 
 Arbitrium, est boni viri arbitrium .. .. .. . . . . 629 
 
 Cuique competit renuntia/re juri pro se introducto .. . . 36 
 
 Ei i/ncumbit prof)atio qui dicit, non gui negat .. .. . . 72 
 
 Expressio unius est exclusio altervus .. . . . . . . 358 
 
 ImperiUa culpm adnumeratur .. .. .. .. 63 n (d) 
 
 In jure non remota causa sed proxima speotatur .. .. .. Bt 
 
 Omne majus in se continet minus .. . . . . . . . . 610 
 
 Omnes Ucentiam habere, his, quce pro se introdu^ta sunt, 
 
 renuntiare .. .. .. .. .. .. .. 294,429 
 
 Omnia prcesumuntur in odium spoUatoris . . . . . . . . 81 
 
 Qui hceret in Uterd hceret in cortice .. .. .. .. .. 449 
 
 Quicunque aliquid statuit, parte vnauMtA alterd .. .. \ ggg 
 
 ]£.■! JEquum licet statuerit, haud cequus fuerit .. .. .. j 
 
 Quilibet potest renundare juri pro se introducto .. .. .. 36 
 
 '.W Qui hceret m litera hceret in cortice .. .. .. .. . . 449 
 
 ^ Quivis rermnciare potest jv/ri pro se introducto .. .. 429 
 
 Bes ipsa loquitur .. .. . . . . . . . . . . 74 
 
 Scienti et consentienti non fit injuria neque dolus .. .. .. 37 
 
 [j/i Spondet peritiam artis .. ., .. .. . . . . 63 n (d) 
 
 * Spondet diUgentiam gerendo negotio parem .. .. .. 63 n (o) 
 
 '' Verba generaUa restri/nguntur ad habilitatem rei vel personm . . 443 
 
 Verbis plane expressisomnino standvm, est .. .. .. .. 397 
 
 ")r. Volenti non fit injuria . . .. .. .. .. .. .. 37 
 
Index 931 
 
 MAXIMUM— PAGE 
 
 compensation under Employers Liability Act, 1880 158, 191, 194 
 
 under W. 0. Act, 1906 519 
 
 expenses.. .. .. .. .. .. ., .. 550,579 
 
 MAY— 
 
 meaning of, in an Act of Parliament . . . . . . . . 654 
 
 MEDICAL ATTENDANCE— 
 
 expenses of, how provided for . . . . . . . . . . 551 
 
 a necessary . . . . . . . . . . . . . . 551 n (c) 
 
 MEDICAL CEBTIPICATE— 
 
 how far binding . . .. .. .. .. .. .. 681,683 
 
 MEDICAL EXAMINATION— 
 
 no power at common law to compel . . . . . . . . 675 
 
 provisions for . . . . . . . . . . . . . . . - 676 
 
 rules of W. C. Act, 1906, as to, do not extend to arbitration . . 677 
 
 workman cannot impose terms as to . . . . . . • • 678 
 
 workman must submit to . . . . . . . . . . • . 680 
 
 malingering .. .. .. .. .. .. .. .. 680 
 
 obstruction of . . . . . . . . . . . . . . • . 682 
 
 demanding, when admission of liability . . . . . . . . 683 
 
 MEDICAL EXPENSES— 
 
 action for 115 n (c) 
 
 under W. C. Act, 1906, when recoverable 551 
 
 MEDICAL PEACTITIONEE^ 
 
 negligence of, in making up prescription . . . . . • ■ • 54 
 
 duly qualified, meaning of . . . . . . • • ■ • 677 
 
 qiialifioation of, acting under W. C. Act, 1906 677 
 
 registration of ! . . . . . . . • . • 6'^° 
 
 fees of 680 
 
 MEDICAL EEPEEEE- 
 reference to be in writing 
 report to 
 
 685 
 685 
 
 County Court Judge may have, as assessor . . . . . . 687 
 
 MEDICAL EBPOBT- 
 how far confidential 
 
 684 
 
 how far conclusive 685,686 
 
 MBMOEANDUM— .„ 
 
 definition of , under W. C. Act, 1906 660 
 
 registration of . . . . ■ ■ • ■ ■ • • • ■ • ggj^ 
 
 inquiry as to „„^ 
 
 judge may rectify register as to °°^ 
 
 requirements of . . .. •• •• •• ■• • ■ „„„ 
 
 genuineness of, dispute as to . . • ■ °° 
 
 what recorded .. .. •■ •• •■ ' „„, 
 
 workman entitled to registration of °°* 
 
 genuineness, only issue .. .. „„„ 
 
 application to record, whether proceedmg 0°" 
 
 MENIAL SEEVANT— 267 
 
 defined . . . . • • • • " nn" " " oen 
 
 not within Employers Liability Act, 1880 ^o ' 
 
 labourer distinguished from 
 
932 Index 
 
 MINE— PAGE 
 
 adjacent to or about a . . . . . . . . . . 505, 506 
 
 on in or about . . . . . . . . . . . . . . 507 
 
 MINER— 
 
 opening safety lamp to light pipe . . . . . . . . . . 146 
 
 idefiued .. .., .. 276 
 
 distinguished from labourer . . . . . . . . . . . . 276 
 
 recklessness of . . . . . . . . . . . . . . . . 403 
 
 making holiday for a day a week, effect of on compensation 523, 541 
 
 MINIMUM COMPENSATION 518 
 
 MINOR— 
 
 medical attendance of . . . . . . . . . . . . . . 551 
 
 (See YouNa Person.) 
 
 MISCONDUCT— 
 
 serious and wilful . . . . . . . . . . . . 894 et sec[. 
 
 {See Serious and Wilful Misconduct.) 
 
 MISTAKE— 
 
 in notice of accident upder Employers Liability Act, 1880 . . 260 
 defect or inaccuracy in notice occasioned by failure to make a 
 claim through .. .. .. .. .. .. 415 
 
 power to correct in award under W. 0. Act, 1906 . . 638, 669 
 
 MONEY PAID INTO COURT .. 454 
 
 MONKEY BITE- 
 
 owner liable for . , . . . . . . . . . . 51 
 
 MONTH— 
 
 how computed 243 n (6), 868 
 
 MOTHER— 
 
 dependant .. .. .. .. .. .. .. .. 621 
 
 NATURAL AND PROBABLE CONSEQUENCES- 
 
 what 352 
 
 NEGLIGENCE— 
 
 defined 16, 49 
 
 contributory, where statutory obligation . . . . . . . . 25 n 
 
 omission of particular precaution, when . . . . . . . . 25 u 
 
 duty of examination . . . . . . . . . . . . . . 49 
 
 notion of, and duty correlative . . . . . . . . . . 50 
 
 where extraordinary care is required to do work efficiently .. 50 
 
 in keeping dog 50 
 
 in keeping monkey 50 
 
 liability for, how founded . . . . . . . ' . . . . 51 
 
 instinctive act does not bring liability for the consequences, as if 51 
 
 involuntary act not .. .. .. ., .. .. .. 51 
 
 responsibility for, implies a personal agent 51 
 
 child throwing stones . . . . . . . . . . . . . . 52 
 
 of coach proprietor in providing coupling rein . . . . . . 52 
 
 liability for, where uninterrupted sequence between act and 
 
 consequence .. .. .. ... .. .. .. .. 52 
 
Index 
 
 933 
 
 NEGLIGENCE— omimjtei page 
 
 in employing incompetent person .. .. .. .. .. 53 
 
 in making up prescription ,, 54 
 
 how consequences of negligent act may be arrested . . 54 n (6) 
 
 man has a right to he negligent 55 n 
 
 presupposes duty 56 
 
 duty to take care, when arising . . . . . . . . . . 57 
 
 lack of foresight when .. .. [, 59 
 
 Water Company when pipes leak how far liable for . . . . 61 
 
 rule of duty in ordinary affairs .. .. .. .. .. 62 
 
 rule of duty in special business .. .. .. .. .. 62 
 
 rule of duty in case of property adjacent to highway . . 64 n (c) 
 
 co-operating agents . . . . . . . . . . . . . . 63 
 
 joint wrongdoers .. .. .. .. .. ... .. 64 
 
 intelligent agent co-operating with irresponsible forces . . . . 65 
 
 placing refuse on land .. .. .. .. .. .. 66 
 
 act of God {see Accident) . . . . . . . . . . . . 66 
 
 limit of liability for .. .. .. .. .. .. 67 
 
 consequences of, how far followed . . . . 67 n (e) 
 
 in repairing canal . . . . . . . . . . . . . . 68 
 
 oausingfire .. .. .. .. .. .. .. 69 
 
 spark from railway engine . . . . . . . . . . . . 69 
 
 rule determining the extent of liability for . . . . 69 n (b) 
 
 destroying sea wall .. .. .. .. .. .. .. 69 
 
 in erecting hoarding . . . . . . . . . . . . 70 n (a) 
 
 in placing obstruction . . . . . . . . . . . . . . 72 
 
 onus of proof of . . . . . . . . . . . . . . . . 72 
 
 " immediately " connected with injury . . . . 67 n (a), 71 n (c) 
 
 fault presumed when .. .. .. .. .. .. .. 74 
 
 a single act of, does not constitute nuisance . . . . . . 75 n 
 
 where facts equally consistent with two hypotheses . . . . 76 
 
 not immediately referable to the act of the defendant . . . . 77 
 
 in rendering gratuitous service . . . . . . . . . . 77 
 
 scintilla of . . . . . . . . . . . . . . . . 77 
 
 in permitting strange dog on premises . . . . . . . . 78 
 
 well defined . . . . . . . . . . . . . . . . 80 
 
 effect of destroying evidence of . . . . . . . . . . 81 
 
 inference of, for injury .. .. .. .. .. .. 82 
 
 inference must be reasonable . . . . . . . . . . . . 82 
 
 effect of confiicting, for jury . . . . . . . . . . . . 82 
 
 but not if testimony is self-destructive . . , . . . 83 
 
 nervous shock .. .. .. .. .. .. .. .. 84 
 
 onus of proving contributory {see Oontbibutoby Negligbncb) . . 85 
 no action for death by, at common law {see Campbell's [Lord] 
 
 Act) .. .. 101 
 
 causing death of son, father's right to recover . . . . 110, 112 
 
 in making up prescription . . . . . . . . . . . . 110 
 
 to personal estate of deceased person . . . . . . . . 115 
 
 of employer under sec. 1 of Employers Liability Act, 1880, a 
 
 necessary element to entitle to recover . . . . . . . . I6b 
 
 inference of, from dangerous method of work . . . . .^ 196 
 
 of servant in course of employment . . . . 197 
 
 not, to give an order in a dangerous work 205 
 
 in conforming to order 207 
 
 presumption of, not raised by work being dangerous . . 223 n (as) 
 
 irrelevant under W. 0. Act, 1906 885 
 
 injury caused by, of employer under W. C. Act, 1906 . . 415 
 
 of sub-contractor at common law . . . . 482 
 
 act of sub-contractor under W. C. Act, 1906 484 
 
934 Index 
 
 NEPHRITIS— PAGE 
 
 death from, accelerated by accident . . . . . . . . 3S0 
 
 NEEVOUS SHOCK— 
 
 when recovery may be had for damages caused by . . . . 84 
 
 NEW TBIAL— 
 
 on ground of improper estimate of damages under Employers 
 
 Liability Act, 1880 291 
 
 where damages inadequate or excessive . . . . . . . . 291 
 
 not grantable under W. C. Act, 1906 636 
 
 NOMINAL SUM— 
 
 award of 562, 565 
 
 NOTICE— 
 
 of defect, at common law . . . . . . . . . . . , 193 
 
 to whom given . . . . . . . . . . . . . . . . 194 
 
 under Employers Liability Act, 1880 . . . . . . . . 194 
 
 distinguished from knowledge . . . . . . . . . . 195 
 
 of injury 259,262 
 
 condition precedent . . . . . . . . . . . . . . 244 
 
 ignorance of need of, no excuse . . . . . . . . . . 245 
 
 to dead employer under Employers Liability Act, 1880 260 n (a), 281 
 under Employers Liability Act, 1880, excused on account of 
 
 widow's pregnancy .. .. .. .. .. .. .. 245 
 
 requisites of .. .. .. .. .. .. .. .. 260 
 
 defect or inaccuracy in . . . . . . . . . . 260 
 
 inaccuracy does not vitiate . . . . . . . . . . . , 261 
 
 amendment of . . . . . . . . . . . , . . . . 261 
 
 addressed to deceased employer . . . . . , . . 260 n (a) 
 
 service of . . . . . . . . . . . . . . . . 262 
 
 of the particular date of accident or injury . , . . . . . . 349 
 
 of death, etc., to whom given under s. 8 (1) (c) . . . . . . 368 
 
 not a proceeding in the action under W. 0. Act, 1906 . . . . 597 
 
 not a " proceeding " unless (allowed by claim) or compensation 607 
 
 of accident under W. 0. Act, 1906 . . . . . . . . . . 600 
 
 how served under W. C. Act, Eules, 1907 . . . . 600 
 
 of injury, time and reason for giving .. .. .. .. 601 
 
 absence of should be explained . . . . . . . . . . 605 
 
 as to medical examination , . . . . . . . . . . . 676 
 
 (See Accident.) 
 
 NUISANCE— 
 
 a continuing wrong not a single act of negligence . . . . 75 n 
 
 OBJECTION OP WORKMAN— 
 
 to work offered . . . . . . . . . . . . . , , _ 556 
 
 OBJECTION TO CLAIM 
 
 must be stated in answer . . . . . . . . . . 617 622 
 
 OBSTRUCTION— 
 
 placing .. .. .. .. .. .. .. .. 71 
 
 OBSTRUCT— 
 
 what is to, an examination . . . . . . _ . 459 
 
Index 935 
 
 OCCUPIER— PAGE 
 
 duty to person coming to him on business 292 
 
 » >. „ as guest 
 
 „ „ „ as mere licensee . . . . . . 292 
 
 „ „ „ as servant .. .. .. ., 293 
 
 OFFER OP EMPLOYMENO? 
 
 566, 575 
 
 OFFICE EMPLOYES— 
 
 within W. C. Act, 1906 454 
 
 OMNIBUS CONDUCTOR^ 
 
 not a workmaai .. .. .. .. .. .. .. .. 270 
 
 " ON, OR IN, OR ABOUT THE PREMISES "— 
 
 under W. C. Act, 1906 382, 494 ei sfig. 
 
 to be distinguished from " near " .. .. .. .. 500 
 
 a refreshment-room is not .. .. .. .. .. .. 502 
 
 " an engineering work," stacking of raUs .. .. .. 505 
 
 ONUS— 
 
 where incompetency of servant charged . . . . 28 n (e) 
 
 as to acceptance of risk . . . . . . . . . . .'. 37 
 
 in pointing negligence . . . . „ . . . . . . 80 
 
 on person seeking to recover compensation for damage . . 72, 370 
 
 in the case of industrial disease .. .. .. .. 364,367 
 
 proving absence of prejudice from want of notice under W. C. 
 Act, 1906 605 
 
 OPTION— 
 
 no double recovery . . . . . . . . . . . . 415 
 
 under W. 0. Act, 1906 416 
 
 to proceed under W. 0. Act, 1906 on failure of ordinary action 416 
 what constitutes exercise of . . . . . . . . . . 424, 425 
 
 limitation of .. .. .. .. .. .. .. 424 
 
 mere notice of injury not exercise of . . . . . . 426 
 
 ORDERS OR DIRECTIONS— 
 
 scope of . . . . . . . . . . • . • • • • 207 
 
 specific, not essential . . 
 
 to "go on" 
 
 negligent, not essential to recovery . . 
 
 direct result of obedience^ to . . 
 
 resultmg from conforming to 
 
 OK OTHERWISE— 
 
 meaning of ^^3 
 
 ORGANIST— 
 
 not within W. G, Act, 1906 450 
 
 OTHERWISE ENGAGED— 
 
 in manuallabour 268, 277, 279 n (a) 
 
 "OUT OF AND IN THE COURSE OF EMPLOYMENT"— 
 
 meaning of 369 
 
 question of fact 372 
 
 negligence irrelevant if accident arismg 385 
 
 actual working not necessary 390 
 
 where accident external 390 
 
 209, 210 
 .. 218 
 219 
 . 209 
 . 223 
 
936 Index 
 
 OUTWOEKEE— paQE 
 
 not within W. 0. Act, 1906 442,461 
 
 " OVERTIME "— 
 
 a portion of the employment . . . . . . . . . . . . 529 
 
 OWNERSHIP OP TACKLE USED IN A BUSINESS— 
 
 irrelevant under Employers Liability Act, 1880 189 
 
 PARENT— 
 
 definition of under Lord Campbell's Act 107, 290 
 
 PARISH CLERK- 
 
 not a workman under W. 0. Act, 1906 .. .. .. .. 449 
 
 PARTIAL DEPENDENCY- 
 
 arbitrator's discretion unlimited .. .. .. .. .. 547 
 
 funeral expenses in case of workman's death . . . . . . 547 
 
 may be taken into account . . . . . . 550 
 
 PARTIAL DISABLEMENT— 
 
 payment during .. .. .. .. .. .. .. 558 
 
 PARTICULAR INSTRUCTIONS— 
 
 under Employers Liability Act, 1880 . . . . . . . . 229 
 
 obedience to, what . . . . . . . . . . . . . . 230 
 
 PARTICULAR PRECAUTION— 
 
 when indicated, duty to take . . . . . . . . . . 25 n 
 
 PARTICULARS— 
 
 delivery of .. .. .. .. .. .. .. .. 622 
 
 objection to claim out of time, or no claim io be taken in 
 
 answer to .. .. .. .. .. .. .. .. 622 
 
 PARTNER— 
 
 liability for default of . . .. .. .. .. .. .. 22 
 
 not a servant . . . . . . . . . . . . . . . . 445 
 
 PARTNERSHIP— 
 
 when dissolution of, is termination of service . . . . . . 6 
 
 PAUPER^ 
 
 as " workman " under Poor Laws not within W. C. Act, 1906 .. 448 
 
 PAYMENT— 
 
 during incapacity, mode of 579 
 
 PAYMENT INTO COURT .. .. 592,632 
 
 PECUNIARY LOSS— 
 
 under Lord Campbell's Act 109 
 
 reasonable expectation .. .. .. .. .. 109 
 
 " pecuniary damage " .. .. .. .. Ill n ((2) 
 
 (See Compensation.) 
 
Index 937 
 
 PENALTY— PAGE 
 
 statutory effect of 25 n 
 
 not to be contracted out of . . . . . . . . . . . . 37 n 
 
 when iuourring, under a Statute is evidence of breach of 
 
 common law duty 62 
 
 deducted from compensation under Employers Liability Act, 
 
 1880, in certain oases . . . , . . . . . . . , 248 
 
 statutory penalties . . . . . . . . . . . . . . 249 
 
 contributory negligence no answer to summons for .. .. 250 
 
 workman disentitled, when 250 
 
 action at common law .. .. .. .. .. .. 250 
 
 imposed on investors under Savings Banks Acts, waived under 
 
 the W. C. Act, 1906 .. 335,582 
 
 PEEMANENT INJUEY 552,559 
 
 PEESONAL AGENT— 
 
 who thus described 52 
 
 PEESONAL DEFAULT— 
 
 of employer .. .. .. .. .. .. .. .. 22 
 
 PEESONAL INJUEY— 
 
 how understood in law . . . . . . . . . . . . 49 
 
 by accident . . . . . . . . . . . . . . . . 354 
 
 PEESONAL EEPEESENTATIVE— 
 
 in case of workman's death, payment to be made to . . 107, 462, 579 
 who is under Employers Liability Act, 1885 . . . . 289 
 
 under Lord Campbell's Act . . . . . . . . . . 290 
 
 under W. 0. Act, 1906 320 
 
 PIEOEWOEKBES 446 
 
 PLACE OF TEIAL 673 
 
 PLANK 
 
 rotten, not employer's plank 45 n (c) 
 
 springing, injury caused by 71 
 
 loose across a hole, tipping up, defective way, under Employers 
 
 Liability Act, 1880 169 
 
 negligently put across the well of a lift 221 
 
 PLANT— ..... 
 
 employer to provide against deterioration of, at common law 
 negligent examination of, at common law . . 
 
 liability where supplying 
 
 imder Employers Liability Act, 1880 
 
 defined .. 
 horse may be . . 
 
 waggons •■ •■ •• 
 
 ship held in coal merchant's business probably not 
 must be the employer's, or authorized by him to be used 
 carcase of house not .. .... 
 
 {And see Maohinbby.) 
 
 POINTS— 
 
 upon a railway 
 
 POLICEMAN— 
 
 not within W. 0. Act, 1906 
 
 B.E.L. ^ ^ 
 
 .. 28,33, 
 
 
 34 
 
 
 53 
 
 
 181 
 
 181, 
 
 ,197 
 
 
 182 
 
 
 182 
 
 182, 
 
 ,184 
 
 
 183 
 
 
 184 
 
 
 234 
 
 442, 
 
 461 
 
938 Index 
 
 POST— PAGE 
 
 service by . . . . . . . . . . . . . . . . 262 
 
 POSTAGE— 
 
 ofletter 262 
 
 primA facie proof when letter not returned . . . . . . 264 
 
 POST OFFICE SAVINGS BANK— 
 
 account opened at . . . . . . . . . . . . . . 330 
 
 PEAOTIOAL JOKE— 
 
 liability for . . . . . . . . . . . . . . . . 51 
 
 PRECAUTION- 
 
 non-adoption of, when evidence of negligence . . . . . . 19 
 
 refusal to take 27 
 
 promise by employer to take . . . . . . . . . . . . 28 
 
 PREJUDICE OF EMPLOYER— 
 
 onus of proving . . . . . , . . . . . . . . . . 605 
 
 PREMISES— 
 
 rights on, of licensee . . . . . . . . . . . . . . 292 
 
 „ of guest 292 
 
 „ of mere licensee . . . . . . . . . . . . 292 
 
 „ ofservant .. .. .. .. .. .. .. 293 
 
 PRESUMPTION— 
 
 from destroying evidence . . 81 
 
 PRINCIPAL - 
 
 liabilities of, liable for fraud of agent when . . . . . . 140 
 
 meaning of, under W. 0. Act, 1906 481 
 
 meaning of trade or business of . . . . . . . . 493 
 
 when entitled to indemnity . . . . . . . . . . . . 512 
 
 PROCEDURE— 
 
 summary of, in arbitration under W. 0. Act, 1906 .. .. 595 
 
 where employer bankrupt and insured . . . . . . . . 586 
 
 on arbitration by committee . . . . . . . . . . . . 623 
 
 " PROCEEDING "— 
 
 what is under W. C. Act, 1906 596 
 
 notice not . . . . . . . . . . . . . . . . 597 
 
 defined 597 
 
 application to register a memorandimi, whether . . . . . . 608 
 
 PEOOEEDINGS— 
 
 time for taking . . . . . . . . . . . . . . . . 596 
 
 in bankruptcy . . . . . . . . . . . . . . . . 597 
 
 conditions precedent to maintaining . . . . . . . . 599 
 
 claim for compensation necessary . . . . . . . . . . 599 
 
 where lost ship . . . . . . . . . . . . . . . . 619 
 
 suspension of .. .. .. .. .. .. .. 676 
 
 PROCESS — 
 
 defined under sect. 8 of W. 0. Act, 1906 365 
 
Index 939 
 
 PRODUCTION OP DOCUMENTS- page 
 
 no power to compel . . . . . . . . . . . , . . 624 
 
 PBOXIMATE CAUSE— 
 
 ^lia* • 55 n (6) 
 
 signification of term . . . . . . . . . . . . 64 n (6) 
 
 QUABBY— 
 
 distinguished from mine . . . . . . . . . . . . 277 
 
 QUABBYMAN— 
 
 contract with . . . . . . . . . . . . . , _ _ 445 
 
 BAILWAY— 
 
 meaning of, in Employers Liability Act, 1880 234 
 
 BAILWAY SEBVANT— 
 
 under Employers Liability Act, 1880 234, 266 
 
 BEASONABLE— 
 
 evidence of negUgenoe • • . . . . 78 n (c) 
 
 expectation of pecuniary benefit . . . . . . . . . . 109 
 
 test .. .. .. .. .. .. .. .. .. Ill n 
 
 past filial conduct may be taken into account . . . . Ill n {a) 
 
 (See Compensation.) 
 
 BEASONABLE TIME— - 
 
 what is 191 n (6) 
 
 BECEIPT— 
 
 efieot of giving 116 
 
 of infant.. .. .. .. .. .. .. .. .. 592 
 
 of registrar under W. C. Act, 1906 385 
 
 BECEIVING OBDEI^- 
 
 accident occurring after . . . . . . . . . . . . 584 
 
 BEDEMPTION— 
 
 of compensation under W. C. Act, 1906 . . . . . . 553, 555 
 
 limitation on power of review, in case of . . . . . . . . 554 
 
 sum paid by way of, not alienable . . . . . . . . . . 582 
 
 redemption may be settled by arbitration 595 
 
 EBEEESHMBNT BOOM— 
 
 not on, or in, or about a railway under W. C. Act, 1906 . . . , 502 
 
 BEGISTBB— 
 
 keeping of 626 
 
 judge may rectify 661 
 
 BEGISTEEED LETTEB— 
 
 service of notice by 262 
 
940 
 
 Index 
 
 REGISTRAR OP COUNTY COURT— 
 in Scotland 
 duty of . . . . .... 
 
 to record memorandum under the W. 0. Act, 1906 
 
 REGISTRAR OP FRIENDLY SOCIETIES— 
 receipt of, discharge . . 
 to certify contracting out of W. C. Act, 1906 
 form of certificate of . . 
 duration of certificate . . 
 to certify scheme by Treasury 
 
 REGISTRATION— 
 of memorandum 
 of award .. 
 
 (See Memobaiidum.) 
 
 REMEDIES AGAINST EMPLOYER— 
 same as licencee's 
 
 REMOTE— 
 
 effects of injury, workman not immediately incapacitated 
 
 REMUNERATION— 
 
 persons with less than £250 a year, within W. C. Act, 1906 
 
 RENUNCIATION— 
 
 of legal right under W. 0. Act, 1906 
 
 REPRESENTATION— 
 of parties at arbitration 
 
 REPRESENTATION IN WRITING— 
 
 of workman's immunity from industrial disease . . . . 
 
 REQUEST POR ARBITRATION— 
 no .time limit for 
 
 good claim for arbitration if made within six months . , 
 who is to make it 
 copy of, for judge 
 copy for each respondent 
 
 ■RES IPSA LOQUITUR— 
 
 does not apply to accident on a highway . . 
 
 BES JUDICATA—. 
 what 
 
 RESPONDENTS— 
 
 who are .. .. .. .. .. .. .. • .. 
 
 RliSPONSIBLj; AGENt— 
 
 what .. .. .. .. .. .. .. ... 
 
 PAGH! 
 
 .. 332 
 
 337, 339, 660 
 
 .. U8 
 
 .. 385 
 427, 428 
 .. 432 
 .. 433 
 437 
 
 660 
 669 
 
 292 
 
 350, 529 
 
 454, 453 
 
 481 
 
 629 
 
 357 
 
 .. 608 
 .. 613 
 619, 620 
 
 75 n 
 
 256 
 
 619 
 
 52 
 
 RESULTED— 
 
 meaning in sub-seo. 3 6! sec. 1 of Employers Liability Act, 1880 223 
 
 RETURNS— 
 
 as to oompensatibn .'. ,'. :: .. .. 319,702 
 
Ivdex 
 
 941 
 
 REVIEW— PAGE 
 
 of amomjt awarded .. .. .. ■• 563 
 
 not necessarily by arbitration . . . . 573 
 
 change in circumstances before . . . . . ■ . ■ , ■ • 573 
 arbitrator may enquire into circumstances of cessation of 
 
 incapacity .. .. .. .. .. .. •• •• 576 
 
 RIGHT— 
 
 correlative of duty {see Duty) 
 to be negligent . . 
 
 RISKS^ 
 
 what are to be considered, in wages . . 
 what are ordinary, of the employment ' . . 
 gas explosion caused .by employer's negligence not one of the, 
 of the service . . . . . . . ■ , • 
 
 where inseparable from the work . ; 
 what, workman insures against 
 where apparent . . 
 whore superadded to the employment' 
 
 obvious .. 
 
 ROOF— 
 
 workman mending, tumbles from . . 
 
 RULES— 
 
 W.O. Act, 1906;. 
 
 medical referees . . ' ; . i ■ 
 
 by Chief Registrar of Friendly Societies 
 
 RUNAWAY ^ORSB, see HORSE. 
 
 15 
 55 n 
 
 14 
 
 22 
 30 
 33 
 37 
 38 
 50 
 87 n (6) 
 
 31 
 
 715 
 869 
 
 884 
 
 SAFEGUARDS— 
 
 duty of employer to supply 
 
 working vfith insufBcient 
 
 SAILORS— 
 how afieoted 
 
 SAVINGS BANK— 
 investment in . . 
 
 SAWYER 
 
 hypothetic case of, injury without loss of earnings 
 
 SCALE OP COMPENSATION 
 
 SCHEDULES— 
 
 Workmen's Compensation Act, 1906 
 
 SCHEME— 
 
 for contracting out of W. C. Act, 1906 . . .. • 
 
 provisions of Friendly Societies Act, 1896, applicable to 
 
 Registrar's signature, what sufficient 
 
 SCHOOLMASTER— „, n a ^ lonK 
 
 whether a workman under W. 0. Act, 1906 
 
 21 
 22, 26, 31, 32 
 
 308, 450, 593 
 
 .. 581 
 
 . . 559 
 826, 518 
 
 326 et seqq. 
 
 .. 427 
 .. 427 
 .. 432 
 
 449, 450 
 
942 Index 
 
 SCOPE OF AUTHOEITY— page 
 
 meaning of . . . . . . . . . . . . . . 138, 369 
 
 SCOPE OF EMPLOYMENT— 
 
 master liable for servant's acts in . . . . . . . . . . 5, 10 
 
 what acts within . . . . . . . . . . . . . . 11 
 
 law as to . . . . . . ... . . . . . . . . . . 138 
 
 course of employment . . . . . . . . . . . . . . 369 
 
 SCOTLAND— 
 
 appeal from, to House of Lords . . . . . . . . . . 702 
 
 SEAMAN— 
 
 not within Employers Liability Aot, 1880 267 
 
 within W. C. Act, 1906 308,450,593 
 
 SECURITY FOB COSTS— 
 
 in cases of appeal under W. C. Aot, 1906 . . . . . . . . 647 
 
 SECBETARY OF STATE— 
 
 returns by employers to . . . . . . . . . . . . 702 
 
 SEQUENCE— 
 
 what an uninterrupted .. .. .. .. .. .. 52 
 
 what is an ordinary .. .. .. .. .. .. 67 n (6) 
 
 what is a legal . . . . . . . . . . . . . . . . 67 
 
 of events following fire wrongfully caused . . . . . . . . 67 
 
 " natural and ordinary " .. .. .. .. .. .. 85 
 
 SEBIOUS AND WILFUL MISCONDUCT— 
 
 meaning of, under Act of 1906 . . . . . . . . . . 894 
 
 wilful misconduct defined . . . . . . . . . . . . 395 
 
 serious misconduct defined . . . . . . . . . . . . 397 
 
 suggested oases . . .. .. .. .. .. .. .. 398 
 
 principle discussed . . . . . . . . . . . . . . 400 
 
 method of interpretation . . . . . . . . . . . . 400 
 
 standard of conduct . . . . . . . . . . . . . . 400 
 
 questions of law which may be raised . . . . . . . . 402 
 
 authorities on, discussed . . . . . . . . . . . . 403 
 
 drunkenness may be .. .. .. .. .. .. .. 407 
 
 common peril frequently an element . . . . . . . . 410 
 
 SERVANT— 
 
 may sue for injuries sustained at the hands of another . . . . 5 
 
 who is . . . . . . . . . . . . . . . . . . 10 
 
 contractor is not . . . . . . . . . . . . . . 11 
 
 agent is not . . . . . . . . . . . . . . . . 12 
 
 not boTond to commit a tort . . . . . . . . . . 13 n (a) 
 
 rights on premises at common law . . . . . . . . . . 293 
 
 rights under Employers Liability Act, 1880 . . . . . . 393 
 
 partner not . . . . . . . . . . . . 445 
 
 contractor not . . . . . . . . . . . . . . . . 446 
 
 obligation to do work with a man's own hands, mark of 447 n (6) 
 
 SEBVANT IN HUSBANDBY— 
 
 who is 273,274 
 
Index 943 
 
 of notice under Employers Liability Act, 1880 262 
 
 l^ypost 262 
 
 contract of . . . 288 445 
 
 under W. 0. Act, 1906 '.'. '.'. '■ ■" '.'. .. ' 600 
 
 SEWER AUTHOEITY— 
 
 liability of employing contractor 287 
 
 SEWER GAS— 
 
 inhalation of . . . . . . . . . . _ _ 352 
 
 SHERIFF (Scotland) 
 
 as arbitrator . . . . . . . . . . _ _ _ 34]^ 
 
 direction to, to state case . . . . . . . , 341 
 
 SHIP— 
 
 defined 321,451 
 
 application of Act to .. .. .. .. .. .. .. 4^5 
 
 accident happening on . . . . . . . . " 451 
 
 presumption as to lost ship . . . ' 618 
 
 SHOP ASSISTAJSTT- 
 
 not a workman within Employers Liability Act, 1880 . . .271 
 
 within W. 0. Act, 1906 454 
 
 SICKNESS— 
 
 incapacity from progressive natural decay not .. .. .. 17 
 
 no deductions in respect of, under Employers Liability Act, 1880 241 
 
 not an accident within the W. 0. Act, 1906 .. .. .. 351 
 
 SIGNATURE— 
 
 what sufficient . . . . . . . . . . . . . . . . 432 
 
 SOLE DEPENDANT— 
 
 death of 475 
 
 SOLICITOR- 
 
 appearance of, at arbitration . . . . . . . . . . . . 630 
 
 service of order when party acts by . . . . . . . . . . 631 
 
 costs of .. .. .. .. .. .. .. .. .. 646 
 
 costs between, and client . . . . . . . , . . . . 649 
 
 may not deduct from compensation awarded . . . . . . 651 
 
 may be declared entitled to lien .. .. .. .. .. 652 
 
 SPARK— 
 
 from engine, where liability stops . . . . . . . . . . 69 
 
 SPECIAL CASE- 
 
 any arbitrator may state . . . . . . . . . . . . 637 
 
 arbitrator stating, to County Court Judge, judge sits as judge . . 641 
 
 judge may make award . . . . . . . . . . . . 642 
 
 has power over costs . . . . . . . . . . . . . . 642 
 
 STAMP ACT— 
 
 policy of insurance against accident . . . . . . . . 589 
 
 STATUTORY DEFENCE 192 
 
 under Employers Liability Act, 1880 192 
 
 Gonroy v. Peacock wrongly decided . . . . . . . . 244 
 
944 Index 
 
 STATUTORY DUTY— page 
 
 to fence machinery .. .. .. .. .. .. .. 25n 
 
 STATUTORY OBLIGATION— 
 
 coercive power of .. .. .. .. .. .. 35-38,62 
 
 STATUTORY RIGHTS— 
 
 arbitrator no power to, limit .. .. .. .. .. .. S82 
 
 STATUTORY SAFEGUARDS— 
 
 workman may oontrapt himself out of . . . . . . . . 35, 36 
 
 STATUTORY SUBROGATION 585 
 
 STAY under W. C. Act, 1906— 
 
 of arbitration pending test case .. .. .. .. 633 
 
 appeal from order of, now to Court of Appeal . . . . 640 
 
 of execution no order for security for costs . . . . 648 
 
 STEP— 
 
 breaking in unfinished house . . .. .. .. .. 172 n (/) 
 
 STOKER— 
 
 a labourer . . . . . . . . . . . . . . . . 269 
 
 STRAIN- 
 
 death due to, accelerated by disease . . . . . . . . 351 
 
 STRANGER— 
 
 recovery of damage from 308, 687 
 
 Ulustration of injuries done by . . . . . . 693 
 
 STRIKE— 
 
 workman injured leaving work on . . . . . . . . . . 22 
 
 STRIKES— 
 
 no deduction in respect of, under Employers Liability Act, 1880 241 
 
 SUB-CONTRACT— 
 
 common law as to . . . . . . . . . . . . . . 43 
 
 liabilities in respect of, under W. C. Act, 1906 . . . . 305, 481 
 
 SUB-CONTRACTING— 
 
 under W. C. Act, 1906 481 
 
 principal and contractor defined 481, 482 
 
 under the common law .. .. .. .. .. 482 
 
 under the W. C. Act, 1897 483 
 
 application of sect. 4 of W. C. Act, 1906 484 
 
 cases under 1897 Act still applicable 486 
 
 principle of the English oases .. .. .. .. 490 
 
 same as contractor and sub-contractor under 1897 Act . . . . 491 
 
 meaning of " principal's trade or business " . . . . . . 493 
 
 " on or in or about the premises " 494 
 
 SUB-CONTRACTOR— 
 
 workmen of, not disentitled to recover against the contractor . . 43 
 
 position of . . . . . . . . . . . . . . . . 286 
 
 remedy over, of under W. C. Act, 1906 . . . . . . . . 484 
 
 (See OONTEACTOE.) 
 
Index 945 
 
 SUDDEN IMPULSE— page 
 
 not wilful disobedience 409 
 
 SUICIDE— 
 
 outside the Act 394 
 
 SUPERANNUATION— 
 
 Government system of . . . . . . . . . . . . 283 
 
 scheme fraoied under W. 0. Act, 1906 317,437 
 
 SUPERINTENDENCE— 
 
 person entrusted with . . . . . . . . . . . . . . 197 
 
 negligence in 197-206 
 
 whilst in the exercise of . . . . . . . . . . . . 199 
 
 how proved .. .. .. .. .. .. .. .. 207 
 
 (And see Emergency.) 
 
 SURGEON— 
 
 certifying .. .. .. .. .. .. .. .. 356 
 
 appeal from certificate of . . . . . . . . . . . . 364 
 
 SUSPENSION OE PROCEEDINGS— 676,684 
 
 TAXATION— 
 
 of costs 651 
 
 of costs in abortive action . . . . . . . . . . . • 653 
 
 TEMPORARY OR CASUAL EMPLOYMENT— 
 
 weekly earnings in cases of . . . . . . . . • • . . 526 
 
 TEST— 
 
 novtis actus mterveniens, when applicable . . . . . . 72 n (o) 
 
 THIRD PERSON— 
 
 indemnity from, under W. C. Act, 1906 687 
 
 TIGER— 
 
 and fierce dog, classified as /era «otMj-£8 50 
 
 TIME— 
 
 reasonable, what is • • ■• . ■• ^ 
 
 limit of for recovery of compensation under Employers 
 
 Liabiu'ty Act, 1880 ••242 
 
 mnnfll .. .. •■ •■ 24a n (o) 
 
 week ".: ■-■• ■.' .. 891, 519, sW 
 
 for taking proceedings under W. C. Act, 1906 599 
 
 TIPS— .. ^^^ 
 
 (And see Gbatuities.) 
 
 TOOLS— 
 
 {See Machineby.) 
 
946 Index 
 
 TORT FEASOR— page 
 
 one cannot bring in another . . . . . . . . . . 65 n (6) 
 
 liability of joint . . . . . . . . . . . . . . 696 
 
 TOTAL DEPENDENCY— 
 
 compensation in ease of death . . . . . . . . 518-547 
 
 TRADE— 
 
 meaning of under W. 0. Act, 1906 459 
 
 TRADES UNION— 
 
 required to give security for appellant's costs . . . . . . 647 
 
 TRAIN— 
 
 upon a railway, meaning of 235 
 
 TRAM OAR— 
 
 driver of, not a workman under Employers Liability Act, 1880 270 
 
 TRAMWAY— 
 
 query whether, is included in railway . . . . . . . . 238 
 
 TRANSFER— 
 
 of proceedings from one County Court to another . . . . 674 
 
 of proceedings in arbitration under W. 0. Act, 1906 . . . . 675 
 
 TREASURY REGULATIONS— 
 
 matters subject to .. .. .. ^. . .. .. .. 437 
 
 TRESPASS— 
 
 wilful, by servant . . . . . . . . . . . . . . 150 
 
 workmen trespassing 884 
 
 TRESPASSER— 
 
 duty to . . . . . . . . . . . . . . . . 50 
 
 TRIAL— 
 
 power to change place of . . . . 257 
 
 place of under W. 0. Act, 1906 674 
 
 (See Action.) 
 
 TROLLEY DRIVER— 
 
 a labourer . . . . . . . . . . . . . . . . 270 
 
 TUITION— 
 
 loss of, not recoverable under W. C. Act, 1906 . . . . . . 572 
 
 tun:nel— 
 
 working in, at workman's risk . . . . . . 20 
 
 UNLAWFUL ACT— 
 
 doer of, liable for all consequences tiU diverted . . 67 n (e) 
 
Index 947 
 
 VIOLATION OF RULES— paob 
 
 by workman .. .. .. .. .. .. .. 398 
 
 VIS MAJOB— 
 
 defined 16 
 
 where there is negligence . . . . . . . . . . . . 65 
 
 principle as to , 66 
 
 (See Accident.) 
 
 VOLUNTARY AOT— 
 
 where it raises a duty ., .. .. .. .. .. .. 81 
 
 VOLUNTARY PAYMENT— 
 
 under Employers Liability Act, 1880, not provided for .. .. 241 
 
 VOLUNTEER— 
 
 what constitutes . . . . . . . . . . . . . . 45 
 
 without a duty . . . . . . . . . . . . . . . . 45 
 
 with a duty . . . . . . . . . . . . . . . . 46 
 
 foreman in one department acting as, in another . . 203, 204 
 
 WAGES— 
 
 must be paid, but work need not be provided under contract to 
 
 employ .. .. .. .. .. .. .. .. 10 
 
 full 392 
 
 average weekly . . . . . . . . . . . . . . . . 392 
 
 compensation inconsistent with continued claim for . . . . 531 
 
 of boy given to parent . . . . . . . . . . . . . . 549 
 
 deduction of expenses from . . . . . . . . . . . . 549 
 
 actual, at time of accident not conclusive . . . . . . . . 560 
 
 diminished capacity to earn full . . . . . . . . . . 566 
 
 of apprentice . . . . . . . . . . . . . . 571 
 
 in addition to compensation under W. C. Act, 1906 .. .. 613 
 
 WAGGONER— 
 
 servant in husbandry if working in harvest field . . . . . . 273 
 
 WAITERS— 
 
 within W. 0. Act, 1906 454 
 
 WAIVER— 
 
 of duty imposed by Employers Liability Act, 1880 . . . . 294 
 
 general law of, of statutory right considered . , . . 294 n (6) 
 
 of right to compensation . . . . . . . . . . . . 294 
 
 imder W. 0. Act, 1906, by employer of, objection by conduct . . 613 
 
 WAKES' WEEK— 
 
 what 537 
 
 WALKING FOREMAN- 
 
 in exercise of superintendence . . . . . . . . 201 
 
948 Index 
 
 WATjT, PAGE 
 
 faUof 28, 33 n (d), 173 
 
 WARNING— 
 
 . effect of disregard of , under W. C. Act, 1906 37,38 
 
 (See SEBions and Wilfui, Misconduct.) 
 
 WAEKANT— 
 
 of Treasury *3 ' 
 
 WATER COMPANY— 
 
 [ pipes 61 n (a) 
 
 WAY— 
 
 defect in condition of 168-172 
 
 defined 168 
 
 roof of mine . . . . . . - . ■ . • • 171 
 
 liability at common law . . . . . . • . • . . . 171 
 
 WEEK— 
 
 what is a, under W. C. Act, 1906 517 
 
 how computed . . . . . . . . • . • • . . 521 
 
 WEEKLY EARNINGS— 
 
 what are . . . . . . . . . . ■ • • • 519 et seq, 
 
 in temporary or casual employment . . . . . . . . 528 
 
 (See Average Weekly Babnings.) 
 
 WEEKLY PAYMENT— 
 
 redeemed . . . . . . . . - ■ . . 560 
 
 test of right to . . . . . . . . . . . . . 561 
 
 review of . . . . . . . . . . • • • • . . 563 
 
 may be reviewed . . . . . . . . . . 563, 56i 
 
 amount of . . . . . . . . . . . . . . . . 567 
 
 date of termination of . . . . . . . . . . 576 
 
 not assignable . . . . . . . . . . . . . . 582 
 
 WELL DIGGER^ 
 
 a labourer 272 
 
 WIPE— 
 
 living separate in adultery under Lord Campbell's Act . . 104 n (b) 
 
 living apart from husband under W. C. Act, 1906 . . . . 465 
 
 WILFUL ACT— 
 
 of servant 6,20,145 
 
 workman injured by, of stranger 308, 875 
 
 meaning of . . . . . . . . . . . . 373, 414 
 
 under Employers Liability Act, 1880 . . . . 414 
 
 WILFUL MISCONDUCT— 
 
 what is, under Act of 1906 394 
 
 sudden impulse is not . . . . . . . . . . 409 
 
Index 949 
 
 WINDING-TIP— PAGE 
 
 of company 585 
 
 WINDOW— I 
 
 broken arm out while cleaning 21 n (e) 
 
 WINDOW OLEANER- 
 
 injury to 45 n (c) 
 
 not necessarily a workman within W. C. Act, 1906' . . .. 459 
 
 WITH ALL PRACTICABLE SPEED 604 
 
 WITNESS— 
 
 no power to compel mider W. C. Act, 1906, in an informal 
 
 arbitration . . . . . . . . . . . , . . . . 624 
 
 may not be medical referee . . . . . . . . . . . . 676 
 
 WORDS— 
 
 about 494 
 
 accident .. .. .. .. .. .. .. .. .. 16 
 
 act of God . . . . . . . . . . . . . . . . 16 
 
 arising out of the employment . . . . 369 
 
 artificer 274 
 
 " as far as possible " .. .. .. .. .. .. 605 
 
 at his option . . . . . . . . . . . . . . . . 416 
 
 at liberty to deduct 654 
 
 average weekly earnings . . . . . • 519 
 
 caretaker . . . . . . . . . • . . • • • • • ■ 272 
 
 child 39 n (o), 92 n (6), 104, 107 
 
 closely connected . . . . ■ . . . • • • • • • 214 
 
 common employment . . . . . . . . ■ ■ ■ ■ 13 
 
 " compensation payable to the workman " . . . • 552 
 
 contractor .. .. .. .. •■ •■ •• •• 11 
 
 contributory negligence . . . . °5 
 
 County Court judge under W. C. Act, 1906 635 
 
 course of employment . . .. .. ■• ^^9 
 
 default 15.21 
 
 defect in the condition • 157 
 
 dependants 320,462 
 
 discretion .. •■ ■• •• ■• •■ ■• •• "^ 
 
 disobedience •• •■ *"° 
 
 domestic servant ^° ' 
 
 duly qualified medical practitioner oTb 
 
 duty ■ •■ •• gl^ 
 
 earnings -!d9, &ia 
 
 Z&r:: :,: :: :: :: " •■9,129,265,319,477 
 
 employer and workman ^" 
 
 family .. *°, 
 
 fellow-servants •■ ■• „_„ 
 
 '^j^^^ ■ •• ;; :: :: 260 nS 
 
 g™?" ; :: .. .. 637 
 
 272 
 hairdresser „„„ 
 
 handicraftsman.. ca? „ w 
 
 if he thinks fit .. •• ,,''°J^)fl 
 
 immediately 67 n (a), 91 n (6) 
 
950 
 
 Index 
 
 WORDS— contmMed 
 infant 
 journeyman 
 labourer . . 
 
 legal personal representative . . 
 machine . . 
 manual labour . . 
 master and servant 
 may 
 
 "may deduct" .. 
 menial servant . . 
 mine 
 miner 
 month 
 negligence 
 obstructs 
 occupier . . 
 on or in or about 
 or otherwise 
 
 otherwise engaged in manual labour 
 out of and in the course of . . 
 out worker 
 overtime . . 
 parent 
 plant 
 
 proceeding 
 process . . 
 proximate cause 
 quarry 
 
 railway servant under Employers Liability Act, 1880 
 railway under Employers Liability Act, 1880 
 reasonable time 
 resulted .. .. ■ 
 
 right 
 
 scope of authority 
 
 serious .. 
 
 serious and wilful misconduct 
 
 servant .. 
 
 " shall be at liberty to deduct " 
 
 ship 
 
 sickness .. 
 
 time 
 
 vis major 
 
 Wakes' week 
 
 way 
 
 week under W. C. Act, 1906 .. 
 
 wilful act 
 
 wilful misconduct 
 
 window cleaner . . 
 
 " with all practicable speed " 
 
 workman 
 
 works 
 
 young person 
 
 FAGI! 
 
 71 n (c) 
 .. 274 
 268-272 
 .. 289 
 .. 176 
 .. 268 
 10 
 .. 589 
 .. 654 
 .. 267 
 .. 505 
 
 276 
 
 .. 368 
 
 16 
 
 459 
 . . 292 
 . . 382 
 . . 448 
 
 277 
 . . 369 
 .. 461 
 .. 529 
 .. 290 
 28, 33, 181 
 .. 596 
 .. 365 
 55 n (6) 
 .. 276 
 .. 284 
 .. 234 
 
 191 
 
 .. 223 
 
 15 
 
 12 
 
 .. 397 
 
 394 et seq. 
 
 10 
 .. 654 
 321, 451 
 
 17 
 191, 242, 519 
 .. 16, 65 
 .. 537 
 .. 168 
 .. 517 
 .. 373 
 
 395 et seq. 
 .. 459 
 .. 604 
 
 9, 266, 441 
 
 .. 173 
 
 89 n (c) 
 
 WORK— 
 
 implied contract to find 
 
 by or under contractor 
 
 definite offer of, to workman under W. C, Act, 1906 
 
 10 
 484 
 566 
 
Index 951 
 
 WORKMAN— • PAGE 
 
 right of, against employer for compensation for injury .. .. 1 
 
 relation to employer at common law purely contractual . . 1 
 entitled to assume ordinary care and good faith on the part of 
 
 the employer . . . , . . . . . . . . . . 5 
 
 to constitute, actual employment not required . . . . . . 10 
 
 leaving work without excuse . . . . . . . . . . . . 11 
 
 employed coaling engine . . . . . . . . . . . . 19 
 
 undertakes ordinary risks . . . . . . . . . . . . 20 
 
 shunting trucks with insufficient help 20 
 
 in a dark tunnel .. .. .. 20 
 
 incompetent .. .. .. .. .. .. .. .. 23 
 
 injured leaving work on strike . . . . . . . . 23 
 
 injured through defective scaffold . . . . . . . . . . 28 
 
 injured blasting rock .. .. .. .. .. .. .. 23 
 
 complaints of incompetence of . . . . . . . . 24 
 
 employer working with . . . . . . . . . . . . 25 
 
 refusing to take precaution . . . . . . . . . . . . 27 
 
 neglect of, to use apparatus supplied . . . . . . . . 28 
 
 knowledge of dangerous conditions . . . . . . . . . . 30 
 
 what is knowledge . . . . . . . . . . . . . . 31 
 
 continuing work to avoid dismissal . . . . . . . . . . 37 
 
 co-operating with the workmen of another employer . . . . 42 
 
 of sub-contractor . . . . . . . . . . . . . . 43 
 
 of sub-contractor can recover against contractor . . . . 43 
 
 no recourse against contractor's employer . . . . . . . . 44 
 
 using material not his master's to save himself trouble . . 45 n (c) 
 of contractor may recover against contractor's employer where 
 
 he is guilty of a breach of general duty . . . . 45 n (c) 
 
 when a volunteer . . . . . . . . . . . . . . 45 
 
 position of volunteer with a duty working with . . . . . . 46 
 
 not barred from recovery because he took no precaution against 
 
 possible defect in machinery . . . . • . . . . . . 96 
 
 scope of employment of . . . . . . . . . . • ■ 1*1 
 
 borrowed appliances, nsing . . . . . . . . . . • • 183 
 
 scope of superintendence . . . . . . . . ■ • 197 
 
 " walking foreman " not a . . . . . . • . • ■ ■ • 201 
 
 superintendent not a . . . . . . . . . • . • • • 202 
 
 conforming to orders or directions . . . . . . • • • ■ 209 
 
 "butty man" 217 
 
 particular, selected for particular job .. .. ■• •• 221 
 
 in charge or control of points, &c. .. .. .. •• 234-238 
 
 compensation to, how estimated . . . . . . ■ • • • 240 
 
 claiming by, under or through . . . . . . • ■ ■ ■ 248 
 
 when not entitled to penalty . . . . . . . . 248 
 
 may frame actions in the alternative . . . . . . • • 254 
 
 rmder Employers Liability Act, 1880, defined 266 
 
 railway servant, who is . . . . . . • • • • • • 266 
 
 testofwhois • 271 
 
 injured by wilful act of stranger oao ?Kn' kqq 
 
 seamen 308, 450, 59d 
 
 debiUtyof 350 
 
 trespasser °°* 
 
 defined under W. 0. Act, 1906 ^^2 
 
 persons excluded from category of, under W. 0. Act, 1906 . . 442 
 
 meaning of, largely extended by W. C. Act, 1906 .. 443 
 
 partner not a . . . . . . • • • ■ • ■ ■ ■ • • **^ 
 
 agreement with colliery owners *4( 
 
 pauper not a 
 
 448 
 
952 Index 
 
 WOnKUAN— continued ' i'age 
 
 curate not . . . . . . • • • ■ • • **° 
 
 parish clerk . . . . . . . . ■ • • • ■ • **^ 
 
 schoolmaster .. .. .. .. •• •• =*9 
 
 paid members of church choir .. .. .. .. ■• *50 
 
 exemptions in the Act ^52 
 
 casual *^^ 
 
 outworker .. .. .. .. ■• •• •• •• ^°J 
 
 accident to, of aub-contraotor . . . . . . • . • • *84 
 
 dying after compensation paid « ■ • 516 
 
 residing abroad . . . . . . . . ■ . • • • ■ • • 557 
 
 definite ofier of work to . . . . . . . ■ • • • ■ °oo 
 
 offer of Ught employment to 669 
 
 conditions of right of, arising under W. 0. Act, 1906 .. .. 589 
 effect of choosing to have compensation assessed, after taking 
 
 ineffective independent proceedings . . . . . . • • 653 
 
 injured, with bankrupt employer 590 
 
 personal examination of . . . . . . • . • • 675 
 
 refusing to be examined .. .. .._ .. ■■ _ ■• 680 
 
 receiving weekly payments may be required to submit to 
 
 examination .. .. .. .. .. .. ■• •■ 680 
 
 WORKMEN'S COMPENSATION ACT, 1906— 
 
 text of 299-343 
 
 involves new principle . . .. .. .. .. ■■ •• 3*5 
 
 accident under .. .. .. .. .. •■ •• ^^^'^^^ 
 
 Industrial Diseases under .. .. .. -. ■• 354-368 
 
 " arising out of, and in course of employment," meaning of, 
 
 under .. 369-891 
 
 one week's disablement, condition precedent to claim under . . 391 
 
 " full wages " and " average weekly earnings " under . . . . 392 
 
 " tips " to be brought into account . . . . . . . • . • 393 
 
 " serious and wilful misconduct " .. .. .. .. 394-412 
 
 no double recovery . . . . . . - . . . ■ • • ■ 412 
 
 workman's option . . . . . . . . • • ■ • *16 
 
 limitation of option, summary . . . . . . • . - • 424 
 
 contracting out, of . . . . . . . . . . 427-437 
 
 applies to employment under Crown . . . . . . . . 437 
 
 advantages of proceeding under, as compared with Common Law 
 
 and Act of 1880 437-439 
 
 who are workmen under .. .. .. .. .. 441-450 
 
 seamen .. .. .. .. .. .. •• •• •• *51 
 
 casual labour under . . . . . . . . . . . . 454-461 
 
 member of police force under . . . . . . . . . . 461 
 
 outworker under .. .. .. .. .. ■• ■• 461 
 
 dependants under . . . . . . . . . . . . 462-476 
 
 employer under . . .. .. .. .. .. .. 477-481 
 
 sub-contracting under . . . . . . . . . . 481-512 
 
 indemnity of principal . . . . . . . • . . 512-514 
 
 compensation under {see Compensation) . . " . . . . 515-593 
 
 objection to work offered . . . . . . . . . . . . 666 
 
 procedure under . . . . . . . . . . . . 594-702 
 
 employers indemnity under .. .. .. .. .. .. 687 
 
 WOEKS— 
 
 defective condition of . . . . . . . . . . . . . . 22, 26 
 
 necessarily dangerous . . . . . . . . . . 23, 173 
 
 defect in the condition of . . . . . . 173, 174 
 
 defined . . . . . . . . . • . . . . . . 173 
 
 wall of building being pulled down 173 
 
Index 
 
 953 
 
 WRONGDOEE— pagis 
 
 may not apportion or qualify his own wrong . . . . 65 n (c) 
 
 liable for the effects produced by terror created by his act . . 91 
 instinctive effort to avoid danger caused by . . . . 91 n (c) 
 
 infant in arms recovering against .. .. .. .. .. 95 
 
 may be detained by servant in order to regain possession of 
 
 master's property 153 
 
 (See Joint Weon&dobbs.) 
 
 39 n (c) 
 --n(c) 
 
 39 
 
 YOUNG PEESON— 
 
 duty to, in fencing machinery . . . . . . . . . . 24 
 
 duty to, in employing .. .. .. .. .. .. .. 89 
 
 defined by the Factory and Workshops Act, 1901 
 
 defined by Shop Hours Act, 1892 
 
 who comes within the description . . . . . . . . . . 39 
 
 meddling .. .. .. .. .. .. .. .. 40 
 
 children on a railway line . . . . . . . . . . . . 80 
 
 rule as to contributory negligence of . . . . . . . . 92 
 
 who is 92 n (6) 
 
 contracts of .. .. .. .. .. .. .. 280 
 
 medical attendance of minor . . .. .. .. .. .. 551 
 
 investment of children's share of an award as against deceased's 
 
 widow 830,593 
 
 YOUNG WOBKMAN— 
 
 proviso in favour of, under W. C. Act, 1906 
 
 562 
 
 THE END 
 
 B.E.L. 
 
 3 Q 
 
ritlHTKD BY 
 WILLTAM; CLOWES AND fiOKS, LIUITBD, 
 LONDON AND BEGCLE5. 
 
P.O. Telephone : Telegraphic Address : 
 
 No. 221 CENTRAL. " POLYGRAPHY. LONDON. 
 
 A Catalogue of Law Works 
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 S"t-i9o9 
 
INDEX OF SUBJECTS. 
 
 
 PAGE 
 
 
 PAGE 
 
 Abstract Drawing — 
 
 
 Collisions at Sea — 
 
 
 Scott. 1892 
 
 27 
 
 Kay. 1895 
 
 . 21 
 
 Administration Actions — 
 
 
 Colonial Law — 
 
 
 Walker and Elgood. 1883 
 
 32 
 
 Cape Colony. 1887 
 
 ■ 31 
 
 Administrators — 
 
 
 Tarring. 1906 
 
 ■ 30 
 
 Walker and Elgood. 1905 
 
 31 
 
 Commercial Agency — 
 
 
 Admiralty Law — 
 
 
 Campbell. 1891 
 
 10 
 
 Kay. 189s 
 
 21 
 
 Commercial Law — 
 
 
 Smith. 1891 
 
 28 
 
 Hurst. 1906 
 
 • 19 
 
 Advocacy — 
 
 
 Common Law — 
 
 
 Harris. 1904 
 
 18 
 
 Indermaur. 1909 
 
 20 
 
 Affiliation — 
 
 
 Companies Law — 
 
 
 Martin. 1896 
 
 23 
 
 Brice. 1893 
 
 8 
 
 Arbitration — 
 
 
 Buckley. 1909 
 
 9 
 
 Slater. 1905 
 
 28 
 
 Smith. 1909 
 
 29 
 
 Attorney and Solicitor-General 
 
 
 Compensation — 
 
 
 of England, Law of — 
 
 
 Lloyd. 1895 
 
 22 
 
 Norton-Kyshe. 1897 
 
 24 
 
 Compulsory Purchase — 
 
 
 Banking — 
 
 
 Browne. 1876 
 
 9 
 
 Ringwood 
 
 26 
 
 Constables — 
 
 
 Bankruptcy — 
 
 
 See Police Guide. 
 
 
 Baldwin. 1904 
 
 Hazlitt. 1887 
 
 Indermaur(Questionand Answer). 
 
 1887 
 
 Ringwood. 1908 
 
 6 
 19 
 
 21 
 26 
 
 Constitutional Law and History— 
 Taswell-Langmead. 1905 
 
 Thomas. 1908 
 
 Wilshere. 1905 ... 
 
 Consular Jurisdiction — 
 
 30 
 31 
 32 
 
 Bar Examination Journal 
 Bibliography. 1908 
 
 6 
 8 
 
 Tarring. 1887 
 
 Contract of Sale — 
 
 30 
 
 Bills of Exchange — 
 
 
 Willis. 1902 
 
 32 
 
 Willis. 1901 
 
 32 
 
 Conveyancing — 
 
 
 Bills of Lading- 
 
 
 Copinger, Title Deeds. 1875 .. 
 
 13 
 
 Campbell. 1891 
 
 ID 
 
 Deane, Principles of. 1883 
 
 14 
 
 „.. Kay. 189s 
 
 21 
 
 Copyright— 
 
 
 Bills of Sale- 
 
 
 Briggs (International). 1906 .. 
 
 8 
 
 Baldwin. 1904 
 
 6 
 
 Copinger. 1904 
 
 12 
 
 Indermaur. 1887 
 
 21 
 
 Corporations — 
 
 
 Ringwood. 1908 
 
 26 
 
 Brice. 1893 
 
 8 
 
 Capital Punishment — 
 
 
 Browne. 1876 
 
 9 
 
 Copinger. 1876 
 
 12 
 
 Costs, Crown Office- 
 
 
 Carriers — 
 
 
 Short. 1879 
 
 28 
 
 See Railway Law. Ship- 
 
 
 Covenants for Title — 
 
 
 masters. 
 Chancery Division, Practice of — 
 
 
 Copinger. 1875 
 
 Crew of a Ship- 
 Kay. 1895 
 
 13 
 
 Brown's Edition of Snell. 1908 
 
 29 
 
 21 
 
 Indermaur. 1905 
 
 20 
 
 Criminal Law — 
 
 
 Williams. 1880 
 
 32 
 
 Copinger. 1876 
 
 12 
 
 And see Equity. 
 
 
 Harris. 1908 
 
 iS 
 
 Charitable Trusts — 
 
 
 Crown Law — 
 
 
 Bourchier-Chilcott. 1902 
 
 II 
 
 Hall. 1888 
 
 23 
 
 Cooke and Harwood. 1867 
 
 12 
 
 Kelyng. 1873 •-■ 
 
 . 22 
 
 Whiteford. 1878 
 
 32 
 
 Taswell-Langmead. 1905 
 
 • 30 
 
 Church and Clergy — 
 
 
 Thomas. 1908 
 
 • 31 
 
 Brice. 1875 
 
 8 
 
 Crown Office Rules- 
 
 
 Civil Law— 
 
 
 Short. 1886 
 
 • 27 
 
 See Roman Law. 
 
 
 Crown Practice — 
 
 
 Club Law— 
 
 
 Corner. igoS 
 
 • 27 
 
 Wertheimer. 1903 
 
 32 
 
 Short and Mellor. 1908 
 
 • 27 
 
 Codes— 
 
 
 Custom and Usage— 
 
 
 Argles. 1877 
 
 £ 
 
 ivjr— .«« ,««c 
 
 •»T 
 
STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. 
 
 INDEX OF SUBJECTS— conf/nued. 
 
 Damages — 
 
 Mayne. 1909 
 
 Discovery — 
 
 Peile. 1883 
 
 Divorce — 
 
 Harrison. 1 89 1 
 
 Domestic Relations — 
 
 Eversley. 1906 
 
 Domicil — 
 
 See Private International Law. 
 
 Dutch Law. 1887 31 
 
 Ecclesiastical Law — 
 
 Brice. 1875 8 
 
 Smith. 1902 28 
 
 Education Acts — 
 
 See Magisterial Law. 
 
 Election Law and Petitions — 
 
 O'Malley and Hardcastle. 1906 24 
 Seager. 1881 27 
 
 Employers' Liability^ 
 
 Beven. 1909 7 
 
 Equity — 
 
 Blyth. 1908 8 
 
 Choyce Cases. 1870 n 
 
 Pemberton. 1867 25 
 
 Snell. 1908 29 
 
 Story. 1892 29 
 
 Waite. 1889 31 
 
 Evidence — 
 
 Phipson. 1907 25 
 
 Examination of Students — 
 
 Bar Examination Journal ... 6 
 
 Indermaur. 1906 20 
 
 Intermediate LL.B. 1889 ... 17 
 
 Executive Officers — 
 
 Chaster. 1899 10 
 
 Executors — 
 
 Walker and Elgood. 1905 ... 31 
 
 Extradition — 
 
 Clarke. 1903 II 
 
 See Magisterial Law. 
 ' Factories — 
 
 See Magisterial Law. 
 
 Fisheries — 
 
 Moore. 1903 24 
 
 See Magisterial Law. 
 
 Foreign Law — 
 
 Argles. 1877 6 
 
 Dutch Law. 1887 31 
 
 Foote. 1904 IS 
 
 Foreshore — 
 
 Moore. 1888 23 
 
 Forgery— 
 
 See Magisterial Law. 
 Fraudulent Conveyances — 
 
 May. iqo8 23 
 
 Gaius Institutes- 
 Harris. 1899 18 
 
 Game Laws — 
 
 - See Magisterial Law 
 
 Glove Law — 
 
 Norton-Kyshe. 1901 ... 
 Guardian and Ward- 
 
 Eversley. 1906 
 
 Hackney Carriages— 
 
 See Magisterial Law. 
 Hindu Law — 
 
 Mayne. 1906 
 
 History — 
 
 Taswell-Langmead. 1905 
 Husband and Wife — 
 
 Eversley. igo6 
 
 Infants — 
 
 Eversley. 1906 
 
 Simpson 1909 ... 
 Injunctions — 
 
 Joyce. 1877 
 
 Insurance — 
 
 Porter. 1908 
 
 International Law — 
 
 Baty. 1900 
 
 Clarke. 1903 
 
 Cobbett. 1909 
 
 Foote. 1904 
 
 Interrogatories — 
 
 Peile. 1883 
 
 Intoxicating Liquors — 
 
 See Magisterial Law. 
 Joint Stock Companies — 
 
 See Companies. 
 Judgments and Orders — 
 
 Pemberton. 1887 
 Judicature Acts — 
 
 Cunningham and Mattinson. 1884 73 
 
 Indermaur. 1875 ... ... 20 
 
 Jurisprudence — 
 
 Salmond. 1907 27 
 
 Justinian's Institutes — 
 
 Campbell. 1892 10 
 
 Harris. 1899 19 
 
 King's Bench Division, Practice 
 of— 
 
 Indermaur. 1905 20 
 
 Landlord and Tenant— 
 
 Foi. 1907 15 
 
 Lands Clauses Consolidation 
 Act- 
 Lloyd. 1895 22 
 
 Latin Maxims. 1904 13 
 
 Leading Cases — 
 
 Common Law. 1903 ... ... 20 
 
 Constitutional Law. igo8 ... 31 
 Equity and Conveyancing • 1903 20 
 International Law. 1908 ... 11 
 Leading Statutes — 
 
 Thomas. 1878 ... - .„ ... 30 
 Leases — 
 
 Copinger. 1875 13 
 
 Legacy and Succession — 
 
 Hanson. 1904 17 
 
 24 
 >S 
 
 23 
 
 30 
 
 IS 
 
 IS 
 28 
 
 25 
 
 7 
 II 
 II 
 IS 
 
 2S 
 
 25 
 
STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 INDEX OF 
 
 S U B J ECTS— continued. 
 
 
 
 PAGB 
 
 
 PAGE 
 
 Legitimacy and Marriage — 
 
 
 Partition- 
 
 
 See Private International Law. 
 
 Walker. 18.82 
 
 31 
 
 Licensing — 
 
 
 Passengers — 
 
 
 Whiteley. 1905 
 
 32 
 
 See Magisterial Law. 
 
 
 See Magisterial Law. 
 
 
 „ Railway Law. 
 
 
 Life Assurance — 
 
 
 Passengers at Sea — 
 
 
 Buckley, 1902 
 
 9 
 
 Kay. 189s 
 
 21 
 
 Porter. 1904 
 
 25 
 
 Patents- 
 
 
 Limitation of Actions — 
 
 
 Frost. 1906 and igoS ... 
 
 i6 
 
 Banning. 1906 
 
 6 
 
 Pawnbrokers— 
 
 
 Local Legislatures- 
 
 
 ■ See Magisterial Law. 
 
 
 Chaster. 1906 
 
 10 
 
 Petitions in Chancery and 
 
 
 Lunacy — 
 
 
 Lunacy — 
 
 
 Renton; 1897 
 
 25 
 
 Williams. 1S80 
 
 32 
 
 Williams. 1880 
 
 32 
 
 Pilots— 
 
 
 Magisterial Law — 
 
 
 Kay 189s 
 
 21 
 
 Greenwood and Martin. 1890... 
 
 17 
 
 Police Guide- 
 
 
 Maine (Sir H.), Worlcs of— 
 
 
 Greenwood and Martin. 1890... 
 
 17 
 
 Evans' Theories and Criticisms. 
 
 
 Pollution of Rivers — 
 
 
 1896 
 
 15 
 
 Higgins. 1877 ' ... 
 
 19 
 
 Maintenance and Desertion — 
 
 
 Practice Books — 
 
 
 Martin. 1896 ,. 
 
 23 
 
 Bankruptcy. 1904 
 
 6 
 
 Marriage and Legitimacy — 
 
 
 Companies Law. igo2 
 
 9 
 
 Foote. 1904 
 
 IS 
 
 Compensation. 189s 
 
 22 
 
 Married Women's Property Acts 
 
 
 Compulsory Purchase. 1876 ... 
 
 9 
 
 Brown's Edition of Griffith. 1891 
 
 17 
 
 Conveyancing. 1883 
 
 13 
 
 Master and Servant — 
 
 
 Damages. 1903 
 
 23 
 
 Eversley. 1906 
 
 IS 
 
 Ecclesiastical Law. 1902 
 
 28 
 
 Mercantile Law - 
 
 
 Election Petition. 1906 
 
 24 
 
 Campbell. 1891 
 
 10 
 
 Equity. 1908 
 
 29 
 
 Duncan. 1886-7 
 
 14 
 
 Injunctions. 1877 
 
 21 
 
 Hurst. 1906 
 
 19 
 
 Magisterial. i8go 
 
 17 
 
 Slater. 1907 
 
 28 
 
 Pleading, Precedents of. 1884... 
 
 13 
 
 See Shipmasters. 
 
 
 Railways and Commission. 1875 
 
 9 
 
 Mines- 
 
 
 Rating. 1886 
 
 9 
 
 Harris. 1877 
 
 18 
 
 Supreme Court of Judicature. 
 
 
 Money Lenders — . 
 
 
 190S 
 
 20 
 
 Bellot. igo6 
 
 7 
 
 Precedents of Pleading — 
 
 
 Mortmain — 
 
 
 Cunningham and Mattinson. 1884 
 
 13 
 
 Bourchier-Chilcott, 1905 
 
 II 
 
 Mattinson and Macaskie. 1884 
 
 13 
 
 Nationality — 
 
 See Private International 
 Law. 
 Negligence— 
 
 Beven. 1908 
 
 
 Primogeniture — 
 
 Lloyd. . 1877 
 
 22 
 
 7 
 
 Principal and Agent — 
 
 Porter. igo6 
 
 2S 
 
 Campbell. 1879 
 
 10 
 
 Principal and Surety — 
 
 
 Negotiable Instruments — 
 
 
 Rovrlatt. 1899 
 
 26 
 
 Willis. 1901 
 
 32 
 
 Principles- 
 
 
 Newspaper Libel — 
 
 
 Brice (Corporations). 1893 
 
 8 
 
 EUiott. 1884 
 
 IS 
 
 Browne (Rating). 1886 
 
 9 
 
 Oaths- 
 
 
 Deane (Conveyancing). 1883 ... 
 
 14 
 
 Ford. 1903 
 
 16 
 
 "Harris (Criminal Law). 1908... 
 
 18 
 
 Obligations- 
 
 
 Houston (Mercantile). 1866 ... 
 
 «9 
 
 Brown's Savigny. 1872 
 
 27 
 
 Indermaur (Common Law).. 1909 
 
 20 
 
 Parent and Child— 
 
 
 Joyce (Injunctions). 1877 
 
 21 
 
 Eversley. igo6 
 
 IS 
 
 Ringwood (Bankruptcy). 1908 
 
 26 
 
 Parliament — 
 
 
 Snell (Equity). 1908 
 
 29 
 
 Taswell-Langmead. 1905 
 
 30 
 
 Private International Law— 
 
 
 Thomis. 1908 
 
 ^I 
 
 Foote. 1904 
 
 14= 
 
STEVENS &> SA YATES, BELL YARD, TEMPLE BAR. 
 
 INDEX OF SUBJECTS— co/iW/iuerf. 
 
 Probate — 
 
 Hanson. 1904 
 
 Harrison. 189 1 
 
 Public Trustee Act, 1906 — 
 
 Morgan, 1907 
 
 Public Worship — 
 
 Brice. 1875 
 
 Quarter Sessions — 
 
 Smith (F. J.). 1S82 ... 
 
 Questions for Students — 
 
 Aldred. 1892 6 
 
 Bar Examination Journal. 1894 6 
 
 Indermaur. 1887 2i 
 
 Waite. 1889 31 
 
 Railways— 
 
 Browne. 1875 9 
 
 Godefroi and bhortt. 1869 ... 17 
 
 Rating — 
 
 Browne. 1886 g 
 
 Real Property — 
 
 Deane. 1883 13 
 
 Edwards. 1904 15 
 
 Tarring. 1882 30 
 
 Records — 
 
 Inner Temple. 1896-8 21 
 
 Recovery — 
 
 Attenborough(StolenGoods). 1906 6 
 
 Registration — 
 
 Elliott (Newspaper). 1884 ... 14 
 
 Seager (Parliamentary). 1881... 27 
 
 Reports — 
 
 Bellewe. 1869 7 
 
 Brooke. 1873 9 
 
 Choyce Cases. 1870 II 
 
 Cooke. 1872 12 
 
 Criminal Appeal, 1908 to ... 13 
 
 Cunningham. 1871 ... ... 13 
 
 Election Petitions. 1906 ... 24 
 
 Finlason. 1870 ... .:. ... IS 
 
 Gibbs, Seymour Will Case. 1877 16 
 
 Kelyng, John. 1873 22 
 
 Kelynge, William. 1873 ... 22 
 Shower (Cases in Parliament). 
 
 1876 ... 28 
 
 South African. 1893-7 29 
 
 Roman Dutch Law — 
 
 Van Leeuwen. 1887 3' 
 
 Berwick. 1902 7 
 
 Roman Law — 
 
 Brown'sAnalysisofSavigny. 1872 27 
 
 Campbell. 1892 10 
 
 Harris. 1899 18 
 
 Salkowski. 1886 27 
 
 Whitfield. 1886 27 
 
 Salvage — 
 
 Jones. 1870 21 
 
 Kay. 189s 21 
 
 Savings Banks— 
 
 ■ Forbes. 1884 10 
 
 Scintillae Juris — 
 
 Darling (C. J.). 1903 
 
 Sea Shore — 
 
 Hall. 1888 
 
 Moore. i888 
 
 Shipmasters and Seamen — 
 
 Kay. 189s 
 
 Societies — See Corporations. 
 Stage Carriages — 
 
 See Magisterial Law. 
 Stamp Duties — 
 
 Copinger. 1878.., 
 Statute of Limitations — 
 
 Banning. 1906 ... 
 Statutes— 
 
 Craies. 1907 ■■• ••• •■• 
 
 Marcy. 1893 
 
 Thomas. 1878 
 
 Stolen Goods — 
 
 Attenboiough. 1906 ... 
 Stoppage in Transitu — 
 
 Houston. 1866 
 
 Kay. 1895 
 
 Succession Duties — 
 
 Hanson. 1904 ... 
 Succession Laws — 
 
 Lloyd. 1877 
 
 Supreme Court, of Judicature, 
 Practice of — 
 
 Indermaur. 1905 
 Telegraphs — 
 
 See Magisterial Law. 
 Title Deeds— 
 
 Copinger. 1875... 
 Torts — 
 
 Ringwood. 1906 
 
 Salmond. 1907 ... 
 Tramways and Light Railways^— 
 
 Brice. 1902 
 
 Treason — 
 
 Kelyng. 1873 
 
 Taswell-Langmead. 1905 
 Trials — 
 
 Bartlett, A. (Murder). 1886 
 
 Queen v. Giimey. 1870 
 Trustees — 
 
 Easton. 1900 
 
 Ultra Vires — 
 
 Brice. 1893 
 
 Voluntary Conveyances — 
 
 May. 1908 
 
 Water Courses — 
 
 Higgins. 1877 
 
 Wills, Construction of— 
 
 Gibbs, Report of Wallace 
 Attorney-General. 1877 
 
 Mathews. 1908 
 Working Classes, Housing of— 
 
 Lloyd. 189s 
 
 14 
 
 23 
 23 
 
 13 
 23 
 30 
 
 19 
 21 
 
 18 
 
 13 
 
 26 
 
 27 
 
 30 
 
 31 
 15 
 
 i-i 
 
 23 
 
 19 
 
 17 
 23 
 
STEVENS &> HAYNES, BELL YARD, TEMPLE BAR. 
 
 Aid red's Contract Law. 
 
 Questions on the Law of Contracts. With Notes to the Answers. Founded on 
 "Anson," " Chitty," and "Pollock." By Philip Foster Aldrbd, D.C.L., 
 Hertford College and Gray's Inn. In crown 8vo. 1882. 
 
 Argles' Foreign Mercantile Laws and 
 Codes in Force in the Principal States of 
 Europe and America. 
 
 ■ By Charles Lyon-Caen, Professeur agrege a la Faculte de Droit de Paris ; 
 Professeur a I'ficole libre des Sciences politiques. Translated by Napoleon 
 Argles, Solicitor, Paris. In 8vo, price 2.S., sewed. 1877. 
 
 Attenborougfh's Recovery of Stolen Goods. 
 
 By C. L. Attenborough, of the Inner Temple, Barrister-at-Law. In 8vo, price 
 7j. dd., cloth. 1906. 
 
 Baldwin's Law of Bankruptcy and Bills 
 of Sale. 
 
 With an Appendix containing The Bankruptcy Acts, 1883 — 1890 ; General Rules, 
 Forms, Scale of Costs and Fees; Rules under s. I2Z of i888 ; Deeds of Arrange- 
 ment Acts, 1887 — 1890 ; Rules and Forms ; Board of Trade and Court Orders ; 
 Debtors Acts, 1869, 1878; Rules and Fornis ; Bills of Sale Acts, 1878— 1S91, 
 etc., etc. By Edward T. Baldwin, M.A., of the Inner Temple, Barrister-at- 
 Law. Ninth Edition, in 8vo, price 27J. (>d., cloth. 1904. 
 
 " The minute care with which this work is always revised has long, since gained the 
 
 confidence of practitioners, and the present edition is fully up to the standard of its predecessors 
 in this respect. The index has also been enlarged." — Law Times. 
 
 Banning's Limitations of Actions. 
 
 With an Appendix of Statutes, Copious References to English, Irish, and American 
 Cases, and to the French Code, and a Copious Index. Third Edition. By 
 Archibald Brown, M.A. Edin. and Oxon., and B.C.L., Oxon., of the Middle 
 Temple, Barrister-at-Law. Royal 8vo, price i6j., clot;h. 1906. 
 
 " The work is decidedly valuable." — Law Titnes, 
 
 "Mr. Banning has adhered to the plan of printing the Acts in an appendix, and making his 
 book a cunning treatise on the case-law thereon. The cases have evidently been investigated with 
 care and digested with clearness and intellectuality." — Laixj youmal. 
 
 Bar Examination Journal, Vols. IV., V., 
 VI., VII., VIII., IX., and X. 
 
 Containing the Examination Questions and Answers from Easter Term, 1878, to 
 Hilary Term, 1892, with List of Successful Candidates at each examination. Notes on 
 the Law of Property, and a Synopsis of Recent Legislation of importance to 
 Students, and other information. By A. D. Tyssen and W. D. EDWARDS, 
 Barristers-at-Law. In 8vo, price i8j. each, cloth. 
 
 Bar Examination Annual for 1894. 
 
 (In Continuation of the Bar Examination Journal.) By W. D. EDWARDS, LL.B,, 
 of Lincoln's Inn, Barrister-at-Law. Price v. 
 
STEVENS Si' HAYNES, BELL YARD; TEMPLE BAR. 
 
 Baty's International Law in South Africa. 
 
 Including the following subjects : — Contraband for Neutral Ports, Suzerainty, 
 Passage of Troops over Neutral Territory, Conduct of Warfare, Annexation, 
 Limited Companies in the War, with a Comparative Summary of the Transvaal 
 Conventions of 1881 and 1884. By Th. Baty, B.C.L'., Barrister-at-LaW. In 
 Demy 8vo. 5^. net. igoo. ' 
 
 Six brief essays on aspects of International Law are here 'presented touching the points arising 
 for settlement in South Africa. . . . The collocation of interesting fragments and curious informa- 
 tion is apparent, but principles are also enunciated, and the little work will be of con^ideral^le value \ 
 *' r Pi^ss^nt epoch. . . . Persons whose ideas of legitimate warfare have been shocked and 
 confused by the extraordinary language of some newspaper correspondents and the irrational 
 attitude of part of the Press, will find in this book food for thought and reflection ; it ought to be 
 widely read."— iaiB Times. 
 
 Bellewe. Les Ans du Roy Ricliard le 
 Second. 
 
 Collect' ensembl' hors les abridgments de Statham, Fitzherbert et Brooke. Per 
 Richard Bellewe, de Lincolns Inne. 1585. Reprinted from the Original' 
 Edition. In 8 vo, price 3/. 3 j., bound in calf antique. 1869. 
 
 , ." ^9 Pitlic library in the world, where English law finds a place, should be without a copy of 
 this edition of Bellewe." — Canada Law Journal. 
 
 Bellot. Legal Principles and Practice of 
 Bargains with Money = Lenders. 
 
 Including the History of Usury to the Repeal of the Usury Laws, with Appendices, 
 and containing a Digest of Cases, Annotated ; relating to Unconscionable Bargains, 
 Statutes, and Forms for the use of Practitioners. Second Edition, enlarged., 
 By Hugh H. L. Bellot, M.A., B.C.L., Barrister-at-Law. Royal 8vo. 587 pp.1 
 Price z\s. 1906. 
 
 Berwick's Voet's Commentary on the 
 Pandects. 
 
 New and Revised Edition of an English Translation. Comprising all the titles on 
 Purchase and Sale — Letting and Hiring — Mortgages — Evictions — Warranty — and 
 Allied Subjectsj being Lib. XVIH., XIX., XX., XXL; and Tit. VII. of 
 Lib. XIII. By T. Berwick, of Lincoln's Inn, Barrister-at-Law, Retired Judge 
 of the District Court of Colombo. In 8vo, price 24J. (td. net, or rupees 18.50. 1902. 
 
 Beven's Law of Employers' Liability and 
 Workmen's Compensation. 
 
 Fourth Edition, much enlarged, and re-arranged. By Thomas Beven, of the 
 Inner Temple, Barrister-at-Law. In 8vo, price 2U. 1909. 
 
 Beven's Negligence in Law. 
 
 Being the Third Edition of " Principles of the Law of Negligence," re-arranged 
 and re-written. By Thomas Beven, of the Inner Temple, Barrister-at-Law ; 
 author of " The Law of Employers' Liability for the negligence of servants causing 
 injury to fellow servants." Third Edition, in two volumes, royal 8vo, price 70^., 
 cloth. 1908. 
 
 . l-he above account is but a sketch of Mr. Beven's great work. It is impossible within the 
 
 i^omre:"botrprSa"l!y and* thireScalir feV'hF'contribuVion to the due understanding of 
 S Mr. Beven hL placed the profession under a lasting obligation, an obligation which no reader 
 of his work will fail to realize." — Solicitors' Journal. 
 
8 STEVENS &• HAYNES, BELL YARD, TEMPLE BAR. 
 
 Bibliotheca Leg:um. Catalogue of Law 
 Books. 
 
 Including all the Reports in the various Courts of England, Scotland, and Ireland ; 
 with a Supplement to December, 1907. By Henry G. Stevens and Robert W. 
 Haynes, Law Publishers. In l2mo (nearly 500 pages), price 2s., cloth net. 
 
 BIyth's Analysis of Snell's Principles of 
 Equity. 
 
 Founded on the Fifteenth Edition. With Notes thereon. By E. E. Blyth, 
 LL.D., Solicitor. Ninth Edition, in 8vo, price ts., cloth. 1908. 
 
 ** Mr. BIyth's book will undoubtedly be very useful to readers of Snell." — Law Titties. 
 " This is an admirable analysis of a good treatise ; read with Snell, this little book will be found 
 very profitable to the student." — Law Journal. 
 
 Brice's Law Relating: to Public Worship. 
 
 With Special Reference to Matters of Ritual and Ornamentation, and the Means of 
 Securing the Due Observance Thereof. And containing in extenso, with Notes and 
 References, The Public Worship Regulation Act, 1874; The Church Discipline 
 Act ; the various Acts of Uniformity ; the Liturgies of. IS49, I5SZ, and 1559, 
 compared with the Present Rubric ; the Canons ; the Articles ; and the Injunctions, 
 Advei'tisements, and other Original Documents of Legal Authority. By Seward 
 Brice, LL. D. , of the Inner Temple, Barrister-at-Law. In one volume, 8vo, price 
 7.%$., cloth. 1875. 
 
 Brice's Ultra Vires: 
 
 Being an Investigation of the Principles which Limit the Capacities, Powers, and 
 LiabiUties of Corporations, and more especially of Joint Stock Companies. By 
 Seward Brice, M.A., LL.D., London, of the Iniier Temple, one of His Majesty's 
 Counsel. Third Edition. Revised Throughout and Enlarged, and containing the 
 United States and Colonial Decisions. Jloyal 8vo, price 38^., cloth. 1893. 
 
 " It is the Law of Corporations that Mr. Brice treats of (and treats of more fully, and at the 
 same_ time more scientifically, than any work with which we are acquainted), not the law of 
 principal and agent ; and Mr. Brice does not do his book justice by giving it so vague a title." — 
 Law yournal. 
 
 Brice's Tramways and Light Railways: 
 
 Containing The Tramways Act, 1870, and the Board of Trade Rules and Regu- 
 lations Relating to Tramways, with Notes ; and the Light Railways Act, 1896, 
 and the Board of Trade Rules and Regulations relating to Light Railways, with 
 Notes, and a Full Collection of Precedents. By Seward Brice, M.A., LL.D., 
 London, one of His Majesty's Counsel, Author of " A Treatise on the Doctrine of 
 Ultra Vires," &c., and B. J. LeveRson, of the Inner Temple, Barrister-at-Law. 
 Second Edition, in royal 8vo, price i8j. net, cloth. 1902. 
 
 ''The Second Edition of Brice on Tramways and Light Railways has been revised and brought up 
 to date by Mr. B. J. Leverson, and from a careful perusal of the contents it is evident that the work 
 has been ably done. The main part of the volume, dealing in text-book form with the Law of 
 iramwajTs and Light Railwiys, contams in 200 pages a clear and accurate exposition of nearly 
 every pomt of practical interest. The value of the book is increased by furnishing the statutes 
 which form the second part of the volume with cross references to the earlier pages of the work. A 
 lull hst of clauses, orders, and several useful forms, complete an indispensable hook."— Law Times. 
 
 Briggs' Law of International Copyright. 
 
 . With Special Sections on the Colonies and the United States of America, By 
 William Briggs, LL.D., D.C.L., M.A., B.Sc, F.C.S., F.R.AS. In 8vo, 
 price lOJ. 1906. 
 
STEVE ATS &• HAYNES, SELL YARD, TEMPLE BAR, 
 
 Brooke'5 (Sir Robert) New Cases in the 
 time of Henry VIII., Edward VI., and 
 Queen Mary. 
 
 Collected out of Brooke's Abridgement, and arranged under years, with a table, 
 together with March's (John) Translation «/ Brooke's New Cases in the time of 
 Henry VIII., Edward VI., and Queen Mary, collected out of Brooke's Abridg- 
 ment, and reduced alphabetically under their proper heads and titles, with a table 
 of the principal matters. In one handsome volume, 8vo. Price 4/. 4^., calf 
 antique. 1873. 
 
 " Both the original and the translation having long been very scarce, and the mispaging and other 
 errors in March's translation making a new and corrected edition peculiarly desirable, Messrs. 
 Stevens and Haynes have reprinted the two books in one volume, uniform with the preceding 
 volumes of the series of Early Reports." — Canada Law JournaL 
 
 Browne's Practice Before the Railway 
 Commissioners under the Reg^ulation of 
 Railway Acts, 1873 and 1874: 
 
 With the Ainended General Orders of the Commissioners, Schedule of Forms, and 
 Table of Fees: together with the Law of Undue Preference, the Law of the Jurisdiction 
 of the Railw.iy Commissioners, Notes of their Decisions and Orders, Precedents of 
 Forms of Applications, Answers and Replies, and AppencKces of Statutes and Cases. 
 By J. H. Balfour Browne, of the Middle Temple, K.C. In one volume, 8vo, 
 price \%s., cloth. 1875. 
 
 Browne on the Compulsory Purchase 
 of the Undertakings of Companies by 
 Corporations. 
 
 And the Practice in Relation to the Passage of Bills for Compulsory Purchase through 
 Parliament. iSy J. H. Balfour Browne, of the Middle Temple, K.C. In 8vo, 
 price Ts. 6d., cloth. 1876. 
 
 Browne and McNaughton's Law of Rating 
 of Hereditaments in the Occupation of 
 Companies. 
 
 By J. H Balfour Browne, of the Middle Temple, K.C, and D. N. 
 McNaughton, 01 th=^ Middle Temple, Barrister-at-Law. Second Edition, m 8vo, 
 , pries 25J., cloth. 1886. 
 
 Buckley on the Companies (Consolida= 
 tion) Act. 
 
 The Law and Practice under the Companies (Consolidation) Act, 1908^ and the 
 Limited Partnerships Act, 1907. Ninth Edition. By The Right Hon. S« Henry 
 Burton Buckley. In Royal 8vo, price 3,61., cloth. 1909- ... 
 
10 STEVENS &• HAYNES, BELL YARD, TEMPLE BAR. 
 
 Cairns, Lord, Decisions in the Albert 
 Arbitration. 
 
 Reported by Francis S. Reilly, of Lincoln's Inn, Barrister-at-Law. Parts I., 
 II., and III., price 25^., sewed. 1872. 
 
 Campbell's Compendium of Roman Law, 
 
 Founded on the Institutes of Justinian ; together with Examination Questions 
 Set in the University and Bar Examinations (with Solutions), and Definitions of 
 Leading Terms in the Words of the Principal Authorities. Second Edition. By 
 Gordon Campbell, of the Inner Temple, M.A., late Scholar of Exeter College, 
 Oxford; M.A., LL.D., Trinity College, Cambridge ; Author of "An Analysis of 
 Austin's Jurisprudence, or the Philosophy of Positive Law." In One Vol., 8vo, 
 price I2J., cloth. 1892. 
 
 Campbell's Sale of Goods and Com= 
 mercial Agency. 
 
 Second Edition. By Robert Campbell, M.A., of Lincoln's Inn, Barrister-at- 
 Law; Advocate of the Scotch Bar, author of the "Law of Negligence," etc. 
 Second Edition, in one volume, royal 8vo, price 32J., cloth. 1891. 
 
 *' An accurate, careful, and exhaustive handbook on the subject with which it deals. The 
 excellent index deserves a special word of commendation." — Laiu Quarterly Remiew. 
 
 _" We can, therefore, repeat what we said when reviewing the first edition— that the book is a con- 
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 fully."— Z^tfw yournal. 
 
 Campbell's Law of Negligence. 
 
 Second Edition. By Robert Campbell, of Lincoln's Inn, Barrister-at-Law, and 
 Advocate of the Scotch Bar. In 8vo, price I2J., cloth. 1879. 
 
 Catalogue, A, of the Reports in the 
 Various Courts of the United Kingdom of 
 Great Britain and Ireland. 
 
 Arranged in Chronological Order. By Stevens & Haynes, Law Publishers. In 
 small 4to, price 2s. net, cloth, beautifully printed, with a large margin, for the 
 special use of Librarians. 
 
 Chaster's Pov^ers, Duties, and Liabilities 
 of Executive Officers, as between these 
 Officers and the Public. 
 
 By A. W. Chaster, of the Middle Temple, Barrister-at-Law. Fifth Edition. In 
 Svo, price 15J. 1899. 
 
 " There is undoubtedly room for a legal treatise on the status of executive officers, and Mr. 
 Chaster has provided much valuable material on the subject."— iaa/y<7Kr»a/. 
 
 Chaster's Local Legislatures. 
 
 A Scheme for full Legislative Devolution for the United Kingdom on Constitutional 
 lines, being a Supplement to " Executive Officers." By A. W. Chaster, of the 
 Middle Temple, Barrister-at-Law. In 8vn. nrire rr, ««■/. lonfi _ 
 
STEVENS <&- HAYNES, BELL YARD, TEMPLE BAR, 11 
 
 Chilcott's, Bourchier=, Administration of 
 Charities. 
 
 Under the Charitable Trusts Acts, 1853-1894, Local Government Act, L894, and 
 London Government Act, 1899. By Thomas Bourchier-Chilcott, of the 
 Middle Temple, Barrister-at-Law. Second Edition, in 8vo, price 21 j., cloth. 1902. 
 
 '* The learned author has thoroughly revised the whole work, and has brought it well up to date. 
 There is an excellent index, a matter of great importance in a work of this kind, where the sub- 
 ject is dealt with in the way of annotated statutes.*' — Law Times. 
 
 "The work is a useful. guide in matters relating to charitable trusts." — Solicitor^ yourttal. 
 "... All concerned in the Administration of Charities will find in Mr. Bourchier-Chilcott's work, 
 a clear and trustworthy statement of their powers'and duties." — Law Journal. 
 
 Chilcott's, Bourchier=, Law of Mortmain. 
 
 By Thomas Bourchier-Chilcott, Barrister-at-Law, Author of "Administration, 
 of Charities." In demy 8vo, price \2.s, (yd. 
 
 *'As supplementary to the subject of the administration of charities, whidh has been already 
 dealt with by the author, this work is now pablished. Both Mortmain and Charitable Uses Acts 
 of i388 and 1891 are exhaustively annotated, while an excellent index, an item of no small 
 importance, will render reference an easy matter. It is undoubtedly a book that should prove 
 distinctly useful to practitioners.*' — Lam Times. 
 
 Choyce's Practice of the High Court of 
 Chancery. 
 
 With the Nature of the several Offices belonging to that Court. And the Reports' 
 of many Cases wherein Relief hath been there had, and where denyed. In 8vo, 
 price 2/. 2s., calf antique. 1870. 
 
 "_Xhis volume, in paper, type and binding (like ' Bellewe's Cases') is a fac-simile of the antique 
 edition. All who buy the one should buy the other." — Canada La/w youmai. 
 
 Clarke's Law of Extradition 
 
 And the Practice thereunder in Great Britain, Canada, the United States, and 
 France ; with the Conventions upon the subject existing between England and 
 Foreign Nations, and the Cases decided thereon. By Sir Edwakd Clarke, Knt., 
 K.C., Her Majesty's Solicitor- General, 1886-1892 ; formerly Tancred Student of 
 Lincoln's Inn. Fourth Edition. Prepared by the Author, and E. Percival 
 Clarke, B. A., of Lincoln's Inn, Barrister-at-Law. In 8vo, price 25^., cloth. 1903. 
 
 "Sir Cdward Clarke has prepared a fourth edition of his admirable treatise on the Law of 
 Extradition with the assistance of his son, Mr. £. Percival Clarke, of Lincoln's Inn, who is, in fact, 
 mainly responsible for it. . . . The book worthily maintains its reputation as the standard authority 
 on the subject. " — Law Times. 
 
 "A new edition of this standard work is welcomed, and the joint effort of the author and his son 
 fully sustain its established reputation as the most authoritative and complete work on its subject." 
 — Law youmai. 
 
 Cobbett's Leading Cases and Opinions on 
 International Law. 
 
 Collected and Digested from English and Foreign Reports, Official Documents, 
 Parliamentary Papers, and other Sources. With Notes and Excursus, containing 
 the Views of the Text- Writers on the Topics referred to, together with Supple- 
 mentary Cases, Treaties, and Statutes; and Embodying an Account of some of the 
 more important International Transactions and Controversies. By Pitt Cobbbtt, 
 M.A., D.C.L., of Gray's Inn, Barrister-at-Law, Professor of Law, University of 
 Sydney, N.S.W. Third Edition in the press, in 8vo, price , cloth* 1909. 
 
 "The book is well arranged, the materials well selected, and the comments to the point. Much 
 will be found in small space in this book."— £.<*«; youmai. . 
 
 "The notes are concisely written and trustworthy. . . . The reader will learn from them a 
 great deal on the subject, and the book as a whole seems a convenient introduction to fuller 
 and more systematic vOT)is."— Oxford Magazine. 
 
12 STEVEWS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 Cooke's (Sir Q.) Common Pleas Reports 
 . in the Reigns of Queen Anne and Kings 
 George I. and II. 
 
 The Third Edition, with Additional Cases and References contained in the Notes 
 taken from L. C. J. Eyre's MSS. by Mr. Justice Nares, edited by Thomas 
 TowNSEND BUCKNILL, of the Inner Temple, Barrister-at-Law. In 8vo, price 
 3/. 3j., calf antique. 1872. 
 
 "Law books never can die or remain long dead so long as Stevens and Haynes are willing to 
 continue them or revive them when dead! It is certainly surprising to see with what facial 
 accuracy an old volume of Reports may be produced by these modern publishers, whose good taste 
 .is only equalled by their enterprise;" — Canada 'Law ^umai. 
 
 Cooke and Harwood's Charitable Trusts 
 Acts, 1853, 1855, i860. 
 
 The Charity Commissioners' Jurisdiction Act, 1862 ; the Roman Catholic Charities 
 Acts; together with a Collection of Statutes relating to or affecting Charities, 
 including the Mortmain Acts, flotes of Cases from .1853 to the present time. Forms 
 of Declarations of Trust, Conditions of Sale, and Conveyance of Charity Land, "and 
 a very copious Index. Second Edition. By Hugh Cooke and R. G. Harwood, 
 of the Charity Commission. In 8vo, price i6j., cloth. 1867. 
 
 Copingfer's Law of Copyright 
 
 In Works of Literature and Art ; including that of the Drama, Music, Engraving, 
 Sculpture, Painting, Photography, and Designs ; together with International and 
 Foreign Copyright, with the Statutes relating thereto, and References to the 
 English and American Decisions. By Walter Arthur Copinger, of the 
 Middle Temple, Barrister-at-Law. Fourth Edition. By J. M. Easton, of the 
 Inner Temple/ Barrister-at-Law. In Royal 8vo, price 36^., cloth. 1904. 
 
 "Mr. Copinger's book is very comprehensive, dealing. with every branch of his subject, and 
 even extending to copyright in foreign countries. So far as we have examined, we have found all the 
 recent authorities noted up with scrupulous care, and there is an unusually good index. These 
 are meiiis which will, doubtless, lead to the placing of this edition on the shelves of the members 
 of the profession whose business is concerned with copyright ; and deservedly, for the book is one 
 of considei-able value."' — Solicitors' youmal. 
 
 Copinger's Tables of Stamp Duties ffom 
 1815 to 1878. 
 
 By Walter Arthur Copinger, of the Middle Temple, Esquire, Barrister-at- 
 Law ; Author of " The Law of Copyright in Works of Literature and Art," " Index 
 to Precedents in Conveyancing," 'f Title Deeds," &c., In 8vo, price 2f. 6a'., cloth. 
 
 1878. 
 
 . V/ 
 
 Popinger's Abolition of Capital Punish= 
 ment. 
 
 Embracing more particularly an Enunciation and Analysis of the Principles of 
 Law as applicable to Criminals of the Highest Degree of Guilt. By Walter 
 Arthur Copinger, of the Middle Ttmple, Esquire, Barrister-at-Law. In 8to, 
 price I J. net, sewed. 1876I — . — . — _ 
 
STEVENS &• HAYNES, BELL YARD, TEMPLE BAR. 18 
 
 Coping:er's Title Deeds: 
 
 Their Custody, Inspeclion, and Production, at Law, in Equity, and in Matters ot 
 Conveyancing. Including Covenants for the Production of Deeds and Attested 
 Copies ; with an Appendix of Precedents, the Vendor and Purchaser Act 1874, &<=. 
 &c. &c. By Walter Arthur Copinger, of the Middle Temple, Barrister-at- 
 1-aw; Author of "The Law of Copyright" and "Index to Precedents in Con- 
 veyancing. In one volume, 8vo, price l+r., cloth. 1875. 
 
 Cotterell's Latin Maxims and Phrases. 
 
 Literally Translated. Intended for the use of Students for all I-egal Examinations, 
 becond Edition. By J. N. Cotterell, Solicitor. In 8vo, price 4J., cloth. 1904.,, 
 
 " T^". ^°P\ seems admirably adapted as a book of reference for students who come across a Latin, 
 maxim in their reading." — Lmu Journal. 
 
 Craies' Statute Law. 
 
 Founded on and being the Fourth Edition of Hardcastle on 
 Statutory Law. With Appendices containing Words and Expressions used in 
 Statutes which have been judicially or statutably construed, and the Popular and 
 Short Titles of certain Statutes, and the Interpretation Act, 1899. B) William 
 Feilden Craies, M. A. , of the Inner Temple and Western Circuit, Barrister- at-Law. 
 In One Volume. Royal %vo. Price 28^., cloth. 
 
 "•, • • • Perhaps a book of this kind was never needed so much as at the present time, when the 
 Legislature has seen fit to pass enactments that, to sajr the least, are ill drawn, and are further 
 complicated by legislation by reference. Both the profession and students will find this work of great 
 assistance as a guide in that difficult branch of our law, namely the construction of Statutes." — 
 Laiti Times. 
 
 'I This new edition of Hardca<;tle bears signs of the painstaking research and careful arrangement 
 which we expect and get from Mr. Craies." — Law Journal. 
 
 " This is a carefully edited edition of a work of considerable value. The editor having prepared 
 the second edition is familiar with his subject, and we find throughout tlie book, the Recent decisions^: 
 and dicta on the subject very neatly inserted." — Solicitors^ Journal. ' '■ I \ .' 
 
 Criminal Appeal Reports. 
 
 Dealing (exclusively) with the whole of the Cases in the new Court of Criminal 
 ' Appeal, both those before the single Judge thereof and those before a full Court. 
 They will, therefore, include not only arguments on points of Law and Practice 
 (such as those with which the Court for Crown Cases Reserved dealt), but also 
 accounts of hearings on questions of Fact and Sentence. The price of the volume 
 to Subscribers will be 27J. 6</. ; that of the separate parts will vary according to the 
 size. Edited by Mr. Herman Cohen, Barrister-at- Law, Editor of the 13th Edition 
 of " Roscoe's Criminal Evidence," and of " The Criminal Appeal Act, 1907." 
 
 Cunningham and Mattinson's Selection 
 of Precedents of Pleading 
 
 Under the Judicature Acts in the Common Law Divisions. With Notes explanatory 
 of the different Causes of Action and Grounds of Defence ; and an Introductory 
 Treatise on the Present Rules and Principles of Pleading as illustrated by the various 
 Decisions down to the Present Timfe. By J. Cunningham and M. W. Mattinson. 
 Second Edition. By Miles Walker Mattinson, of Gray's Inn, Barrister-at- 
 Law, and Stuart Cunningham Macaskie, of Gray's Inn, Barrister-at-Law. 
 In Svo, price 28s., cloth. 1884. 
 
 Cunningham's Reports. 
 
 Cunningham's (T.) Reports in K. B., 7 to 10 Geo. II.; to which is prefixed 
 a Proposal for rendering the Laws of England clear and certain, humbly offered 
 to the Consideration of both Houses of Parliament. Third edition, with numerous 
 Correctio.ns. By Thomas Townsend Bucknill, Barrister-at-I^w. In 8vo, 1871, 
 price 3/. 3s., calf antique. 
 
14 STEVENS 6- HAYNES, BELL YARD, TEMPLE BAR. 
 
 Darling's Scintillae Juris and Meditations 
 in the Tea Room. 
 
 By the Hon. Mr. Justice Darling. With Colophon by the late Sir Frank 
 LocKWOOD, Q.C., M.P. Price ^s. net. 1902. 
 
 '"Scintillae Juris Ms that little bundle of humorous essays on law and cognate matters which, 
 since the day of its first appearance, some years ago, has been the delight of legal circles. - . . 
 It has a quality of style which suggests much study of Bacon in his lighter vein. Its best essays 
 would not be unworthy of the Essays, and if read out, one by one, before a blindfolded connoisseur, 
 might often be assigned to that wonderful book." — Daily NeTvs. 
 
 Deane's Principles of Conveyancing. 
 
 An Elementary Work for the use of Students. By Henry C. Deane, of Lincoln's 
 Inn, Barrister-at-Law, sometime Lecturer to the Incorporated Law Society of the 
 United Kingdom. Second Edition, in one volume, 8vo, price i8j., cloth. 1883. 
 
 De Bruyn's Opinions of Grotius 
 
 As contained in the HoUandsche Consultatien en Advijsen. Collated, translated, 
 and annotated by D. P. DK Bruyn, B.A., LL.B., Ebden E.ssayist of the University 
 of the Cape of Good Hope ; Advocate of the Supreme Court of the Colony of the 
 Cape of Good Hope, and of the High Court of the South African Republic. With 
 Facsimile Portrait of HuGO DE Geoot. In i Vol., 8vo, price 40^., cloth. 
 1894. 
 
 Duncan's Mercantile Cases for the Years 
 
 1885 and 1886. 
 
 Being a Digest of the Decisions of the English, Scotch and Irish Courts on Matters 
 Relating to Commerce. By James A. Dun'CAN, M.A., LL.B., Trinity College, 
 Cambridge, and of the Inner Temple, Barrister-at-Law. In Svo, price I2f. bd., 
 cloth. 1886—7. " 
 
 Easton's Law as to the Appointment of 
 New Trustees. 
 
 With Appendices containing Forms and Precedents and Material Sections of the 
 Trustee Act, 1893, and the Lunacy Acts, 1890 and 1891. By J. M. Eastdn, of 
 the Inner Temple, Barrister-at-Law. In 8vo, price Ts. td., cloth. 1900. 
 
 " j ■ li ^^' E^'pn.'ias devoted great ability and learning to a treatise on this one subject, and 
 savea all who may in future be wise enough to consult his work the labour of searching through many 
 other more ponderous tomes for what they will most likely find here more fully considered. Mr. 
 fiaston has not only carefully examined the cases to discover and expound what has been decided, 
 out Be nas shown great ingenuity in imagining what difficulties may arise, and sagacity in applying 
 principles to their solution. Tl)e book is very complete, and contains some useful precedents, and 
 the material sections of the Trustee Act, 1893, and the Lunacy Acts, 1890 and i8oi."-i<M</ 
 Magazine and Rmiew. i < •> v 
 
 " '"' J "S* ""npa<:t volume the author has collected the whole of the information on this subject 
 —Lawr'^ require information on this subject will find Mr. Easton's book a valuable aid." 
 
 _ "This is a useful book on an important subject, the law of which— though often supposed to be 
 sunple-^is in reality full of pitfa Is. ... Mr. Easton has done his work well, and his treatment ol 
 his subject is practically exhaustive, '—ioai JournaL 
 
STEVENS 6- HAYNES, BE LL YARD, TEMPLE BAR. IS 
 
 Edwards' Compendium of the Law of 
 Property in Land. 
 
 For the use of Students and the Profession. By William Douglas Edwards, 
 igoT'' ^'°=olns Inn, Barrister-at-Law. Fourth Edition, price zos., cloth. 
 
 genSoS wL'?^R?P,'^'y ^'""^ popular, and may now, we think, fairly daim to be to the present 
 generation what Burton s Compendium ■ was to our forefathers."-Za«, yottrmU. 
 Fourth Editmn^nT"' *'''"'.»™s "^ ™<:e more thoroughly up to date, and we hope that the 
 aiTeneth aS tT,^ n*^ rapid a s^,^ ,h, ^^^ g^^ ^^itions. It is unnecessary for us to write 
 
 "Mr 25 *, . ™«!'="C'=s of the work. . . ."—Law Notes. 
 and conci7ene« „f A'?'"' ™ ""^ HT °f ^"' Property is marked by excellency of arrangement 
 that the meritfof ,bl K^T"" ^^f.f ^^^ '° ^' ^^ "^» appearance of successive editions, 
 
 " Solv^ n . • It °^ ^"■^ appreciated. "-.S-fl/K/for-i' Jourtml. 
 it treats!"— Zaa/'TV^""*"^*""™' ""*' "^ ''""'^ "^ "° ''^"" compendium upon the subject of which 
 
 7oK^ia/°"*'''" "' °°'' °^ '''^ ''°^' ""''^ published on Real Property Law."-iaK/ Students 
 
 Elliott's Newspaper Libel and Registra= 
 tion Act, 1 88 1. 
 
 With a Statement of the Law of Libel as AfTecting Proprietors, Publishers, and 
 Editors of Newspapers. By G. Elliott, Barrister-at-Law, of the Inner Temple. 
 In 8vo, price 4f. (xi., doth. 1884. 
 
 Evans' Theories and Criticisms of Sir 
 Henry Maine. 
 
 By Morgan O. Evans, Barrister-at-Law. Contained in his six works, " Ancient 
 1-aw, Early Law and Customs," "Early History of Institutions," "Village 
 
 Communities," "International Law," and "Popular Government," which works 
 have to be studied for the various examinations. In 8vo, orice t,s., cloth. 1896. 
 
 Eversley's Domestic Relations. 
 
 Including Husband and Wife : Parent and Child : Guardian and Ward : Infants : 
 and Master and Servant. By William Pinder Eversley, B.C.L., M.A., of the 
 Inner Temple, Barrister-at-Law. Third Edition, in royal 8vo, price 38j-. , cloth. 1906.! 
 "We are glad to see a second edition of Mr. Eversley's useful work. There is a convenience irf 
 having the various subject? of which it treats collected in one volume, while at the same time each 
 IS handled with such fulness as to give the reader all tne information he could expect in a separate 
 voJume._ Mr. Eversley states the law with the most painstaking thoroughness, and has made an 
 exhaustive survey of all the relevant statutes and cases. . Great care nas been taken to make 
 
 the present edition complete and accurate, and a very full index adds to its utility."— i'o/iatori' 
 Journal. 
 
 Finlason's Queen v. Qurney and others 
 
 In the Court of Queen's Bench before the Lord "Chief Justice Cockburn. With 
 Introduction, containing History of tlve Case, and Examination of the Cases at Law 
 and Equity applicable to it. By W. F. FiNLASON, Barri.ster-at-Law. In 8vo, 
 price loj. 6^., cloth, 1870. 
 
 Foa's Law of Landlord and Tenant. 
 
 By Edgar Foa, of the Inner Temple, Barrister-at-Law. Fourth Edition, price 
 30r., cloth. 1907. 
 
 Foote's Private International Jurispru= 
 dence 
 
 Based on the Decisions in the English Courts. By loHN Alderson Foote, one 
 of His Majesty's Counsel ; Chancellor's Legal Medallist and Senior Whewell 
 Scholar of International Law, Cambridge University, 1873 ; Senior Student in 
 Jurisprudence and Roman Law, Inns of Court Examination, Hilary Term, 1874. 
 Third Edition, in roy. 8vo, cloth, 25^. 1904. 
 
 ". . . . Thisexcellent work on private international law is now well known throughout the Profession, 
 and its assistance to lawyers who have to deal with the difScult questions that arise on the subject 
 is undoubted. The ' continuous summary ' which appears throughout, and is reprinted in exienso 
 at the end of the volume, is a valuable guide to the reader, and will enable. him to get a good grasp 
 of a subject which is both difficult and complex." — Law Times. 
 
16 STEVENS 6» HAYNES, BELL YARD, TEMPLE BAR. 
 
 Forbes' Law of Savings Banks since 1878. 
 
 With a Digest of Decisions made by the Chief Registrar and Assistant Registrars of 
 Friendly Societies from 1878 to. 1882, being a Supplement to the Law relatihij to 
 Trustee and Post Office Savings, Banks. By U. A. Forbes, of Lincoln's Inn, 
 Barrister-at-Law. In demy l2mo, price (ss., cloth. The complete work can be had, 
 price loj. 6a'. 1884. 
 
 Forbes' Statutory Law relating to 
 Trustee Savings Banks (1863 — 1891). 
 
 Together with the Treasury Regulations (1888— 1889), and the Scheme for the 
 Appointment of the Inspection Committee of Trustee Savings Eanksi By 
 Urquhart a. Forbes, of Lincoln's Inn, Esq., Barrister-at-Law, Author of "The 
 Law Relating to Savings Banks " ; the " Law of Savings Banks since 1878 " ; and 
 joint Author of "The Law Relating to Water." In demy i2mo, price 5*. 1892. 
 
 Ford on Oaths, for use by Commissioners 
 for Oaths 
 
 And all Persons Authorised to Administer Oaths in the British Islands and the 
 Colonies, containing Special Forms of Jurats and Oaths — Information as to 
 Affidavits, Affirmations and Declarations — Directions for the Guidance of 
 Solicitors Applying to be Appointed English Commissioners : also Tables of Fees, 
 Statutes, etc., and general Practical Information as to the Powers, Duties, 
 De.signation, and Jurisdiction of all Official and other Persons authorised to 
 administer Oaths, as affected hy the Commissioners for Oaths Acts, 1889, 1890, 
 1891, and other Statutes, and by Rules of Supreme Courts of England and Ireland ; 
 with Notes of Recent Decisions. Eighth Edition. By Frederick Hugh Short, 
 Chief Clerk of the Crown Office, King's Bench Division. In crown 8vo, price 
 3^. ()d. net. 
 
 Frost's Law and Practice relating to 
 Letters Patent for Inventions. 
 
 With an Appendix of Statutes, International Coiiventionj Kules, Forms, and 
 Precedents, Orders, etc. By Kobert Frost, B.Sc. (Lend.), Fellow of the 
 Chemical Society ; of Lincoln's Inn, Esquire, Barrister-at-Law. Third Edition 
 in 2 vols., royal 8vo, price 36J., cloth. 1906. 
 
 " It is about seven years since we had the pleasure of noticing Mr. Frost's work on Patent Law, 
 and formed the opinion that its success would be secured by its undoubted merit. In the time that 
 has eiapsed ' Frost on Patents' has taken its place securely as the leading text book on the subject. 
 ... To all, whether lawyers" or patent agents, who require assistance in the law of patents, 
 Mr. Frost's book will be welcome as a mine of valuable and accurate mformation." — Lww Times, 
 Nov. 5th, i8g8. 
 
 " Mr. Frost has in this second edition produced a most admirable and exhaustive treatise on the 
 Patent Law of the United Kingdom. ... It is a work of well-directed industry from the pen of 
 one versed in this important branch of the law, and there are few questions arising in patent law 
 and practice on which adequate information and a complete collection of the authorities,, will not be 
 found within this volume . . . We congratulate Mr. Frost on having produced a very important 
 addition to our law text books." — Laiv Journal, Oct. 29th, i8g8. 
 
 "When the first edition of this work appeared^ more than seven years ago, we were glad to be 
 able to speak of it in favourable terms, and the opinion which we then expressed may be repeated with 
 greater emphasis with respect to this second edition, which leaves little to be desired either as a 
 statement of the law and ^jractice or as a monument of the author's industry and accuracy. . . . The 
 net result of our examination of the book is to satisfy us that it is one for which the profession will 
 very properly be grateful." — Solicitors' yournal^ Nov. 19th, i8g8. 
 
 Frost's Patents and Designs Act, 1907. 
 
 With Rules and Forms, &c. By Robert Frost, B.Sc. (Lond.), Fellow of the 
 Chemical Society; of Lincoln's Inn, Esq., Barrister-at-Law. In royal 8vo, 
 price IPX., cloth. 1908 
 
STEVENS &• ffAYNES, BELL YARD, TEMPLE BAR. 17 
 
 Qibbs' Case of Lord Henry Seymour's 
 Will (Wallace v. The Attorney -General) . 
 
 Reported by Frederick Weymouth Gibbs, C.B., Barrister-at-Law, late Fellow 
 of Trinity College, Cambridge. In royal 8vo, price loj. , cloth. 1877. 
 
 Qodefroi & 5hortt's Railway Companies. 
 
 Comprising the Companies Clauses, the Lands Clauses, the Railways Clauses 
 Consolidation Acts, the Railway Companies Act, 1867, and the Regulation of 
 Railways Act, 1868; with Notes of Cases on all the Sections, brought down to the 
 end of the year 1868 ; together with an Appendix giving all the other material Acts 
 relating to Railways, and the Standing Orders of the Houses of Lords and 
 Commons ; and a copious Index. By Henry Godefroi, of Lincoln's Inn, and 
 John Shortt, of the Middle Temple, Barristers-at-Law. In 8vo, price 32/., 
 cloth. 1869. 
 
 Greenwood & Martin's Magisterial and 
 Police Guide: 
 
 Being the law relating to the Procedure, Jurisdiction, and Duties of Magistrates and 
 Police Authorities, in the Metropolis and in the country, with an Introduction show- 
 ing the General Procedure before Magistrates both in Indictable and Summaiy 
 Matters. By Henry C. Greenwood, Stipendiary Magistrate for the district of the 
 Staffordshire Potteries ; and Temple Chevalier Martin, Chief Clerk to the 
 Magistrates at Lambeth Police Court, London ; Author of " The Law of Mainten- 
 ance and Desertion," " The New Formulist," etc. Third Edition. Including the 
 Session 52 & 53 Vict., and the cases decided in the superior courts to the end of the 
 year 1889, revised and enlarged. By Temple Chevalier Martin. In 8vo, 
 price 32J. , cloth. i8go. 
 
 Griffith's Married Women's Property 
 Acts; 1870, 1874, 1882 and 1884. 
 
 With Copious and Explanatory Notes, and an Appendix of the Acts relating to 
 Married Women. By Archibald Brown, M.A., Edinburgh and Oxon., and 
 the Middle Temple, Barrister-at-Law. Being the Sixth Edition of The Married 
 Women's Property Acts. By the late J. R. Griffith, B.A. Oxon., of Lincoln's 
 Inn, Barrister-at-Law. In Svo, price gi., cloth. 1891. 
 
 Handbook to the Intermediate and Final 
 LL.B. of London University. 
 
 Pass and Honours. Including a complete Summary of " Austin's Jurisprudence," 
 and the Examination Papers of late years in all branches. By a B.A., LL.B. 
 (Lond.). Second Edition, in Svo, price f>s., cloth. 1889. 
 
18 STEVENS &- HAYNES, BELL YARD, TEMPLE BAR, 
 
 Hanson's Death Duties. 
 
 Being the Fifth Edition of the Acts relating to Estate Duty, Finance, Probate, 
 Legacy, and Succession Duties. Comprising the 36 Geo, III. c. 52 ; 45 Geo. III. 
 c. 28 ; 55 Geo. III. c. 184; and 16 & 17 Vict. c. 51 ; the Customs and Inland 
 Revenue Acts, 43 Vict. c. 14; and 44 Vict. c. 12; also the New Estate Duty 
 Finance Acts, 57 & 58 Vict. u. 30, and 59 & 60 Vict. c. 28 ; with an Introduction, 
 Copious Notes, and References to all the Decided Cases in England, Scot- 
 land, and Ireland. An Appendix and a full Index. By Alfred HansOn, ot 
 the Middle Temple, Esq., Barrister-at-Law, Comptroller of Legacy and Suc- 
 cession Duties. Fifth Edition by Lewis T. Dibdin, D.C.L. (T)ean of the 
 Arches), and F. H. L. Errington, M.A., Barrister-at-Law. In 8vo, price 30J. 
 cloth. 1904. 
 
 " The Fifth Edition of this deservedly well-known text-book has been carried out with much 
 care, and many improvements by Mr. Eirington, Sir Lewis Dibdin being now otherwise occupied 
 with official duties .... And by way of a more complete consecutiveness, all the Acts are 
 printed without notes at the end of this part, with marginal references to the pages at which the 
 sections are treated in detail. This arrangement will much improve the usefulness of the book for 
 the busy man, who does not appreciate that form of original research, which reaches its highest 
 perfection in the brains of experts in Bradshaw. The Amending Acts and new decisions appear to be 
 fully incorporated, and will combine with the new arrangement to make the book most acceptable to 
 the profession."— 5o/k:iVo?-j' Journal. 
 
 "Seven years have elapsed since the last Edition of Hanson was published, and the profession 
 will welcome this new edition not less cordially than its predecessors .... The plan of 
 separating the sub-sections of the Acts, which led to confusion, has been abandoned, and the differ- 
 ence between the type of the Statutes and the notes has been made greater. The reputation of the 
 work of a leading authority on a complicated subject is fully maintained." — Laiv Journal. 
 
 " . . . . Since the last Edition there have been two Amending Acts dealing with estate duty, and 
 a large number of cases decided by the courts, all of which have been duly incorporated in the text. 
 All the Acts relating to estate duty have been printed together as a whole — a convenient arrange- 
 ment. The book may well be described as the leadins; work on the Death Duties." — La's} Times. 
 
 Harris' Illustrations in Advocacy, 
 
 With an Analysis of the Speeches of Mr. Hawkins, Q.C. (Lord Brampton) in the 
 Tichborne Prosecution for Perjury. (A study in Advocacy.) Also a Prefatory 
 Letter from the Right Hon. Lord Brampton. By Richard Harris, K.C, a 
 Bencher of the Middle Temple. Fourth Edition, re-written by the Author. l2mo. 
 Price 7j. bd., cloth. 
 
 Harris's Principles of the Criminal Law. 
 
 Intended as a Lucid Exposition of the subject for the use of Students and the 
 Profession. By Seymoub F. Harris, B.C.L., M.A. (Oxon.), Author of "A 
 Concise Digest of the Institutes of Gains and Justinian." Eleventh Edition. By C. 
 L. Attenborotjgh, of the Inner Temple, Barrister-at-Law. In 8vo, price 20s., 
 cloth. 1908. 
 
 "This Standard Textbook of the Criminal Law is as good a book on the subject as the ordinary 
 student will find on the library shehes .... The book is very clearly and simply written. No 
 previous legal knowledge is taken for granted, and everything is explained in such a manner, that 
 no student ought to have much difficulty in obtaining a grasp of the subject. . ." — Solicitors' 
 
 Journal. 
 
 " . . . . As a Student's Textbook we have always felt that this work would be hard to beat, and at 
 the present time we have no reason for altering our opinion " — Law Times, 
 
 Harris's Institutes of Gains and Justinian. 
 
 With copious References arranged in Parallel Columns, also Chronological and 
 Analytical Tables, Lists of Laws, &c., &c. Primarily designed for the use of 
 Students preparing for Examination at Oxford, Cambridge, and the Inns of Court. 
 By Sfymour F. Harris, B.C.L., M.A., Worcester College, Oxford, and the 
 Inner Temple, Barrister-at-Law, Author of " Universities and Legal Education." 
 Third Edition, in crown 8vo, 6s. 1899. 
 
 "This book contains a summary in English of the elements of Roman Law as contained in the 
 works of Gaius and Justinian, and is so arranged' that the reader can at once see wliat are the 
 opinions of either of these two writers on each point. From the very exact and accurate references 
 to titles and sections given he can at once refer to the original writers. The concise manner in 
 which Mr. Harris has arranged his digest will render it most useful, not only to the students 
 for whom it was originally written, but also to those persons who, though they have not the time to 
 wade through the larger treatises of Poste, Sanders, Ortolan, and others, yet desire to obtain 
 some knowledge of Roman 'Law."— Oxford and Cambridge Undergraduates' Journal. 
 
i^-JMVENS &• UAYNES, BELL YARD, TEMPLE BAR. 19 
 
 Harris's Titles to Mines in tlie United 
 States. 
 
 With the Statutes and References to the Decisions of the Courts relating thereto. 
 By W. A. Harris, B.A. Oxon, of Lincoln s Inn, Barrister-at-Law ; and of the 
 American Bar. In 8vo, price ^s. bd., cloth. 1877. 
 
 Harrison's Epitome of the Laws of Pro= 
 bate and Divorce. 
 
 For the use of Students for Honours Examination. By J. Carier Harrison, 
 Solicitor. Fourth Edition, in 8vo, price 7^. dd., cloth. 1891. 
 
 " The work is considerably enlarged, and we think improved, and will be found of great assis- 
 tance to students."— Zoiei Students' journal. 
 
 Hazlitt & Ringwood's Bankruptcy Act, 
 1883. 
 
 With Notes of all the Cases decided under the Act ; the Consolidated Rules and 
 Forms, 1886 ; the Debtors Act, 1869, so far as applicable to Bankruptcy Matters, 
 with Rules and Forms thereunder ; the Bills of Sale Acts, 1878 and 1882 ; Board of 
 Trade Circulars and Forms, and List of Official Receivers ; Scale of Costs, Fees, 
 and Percentages, 1886 ; Orders of the Bankruptcy Judge of the High Court ; and a 
 Copious Index. By Willi /vM Hazlitt, Esq., Senior Registrar in Bankruptcy, 
 , and Richard Ringwood, M.A., of the Middle Temple, Esquire, Barrister-at-Law. 
 Second Edition, by R. Ringwood, M.A., Barrister-at-Law. In crown 8vo, price 
 \2s. 6d., cloth. 1887. 
 
 Higgfins' Pollution and Obstruction of 
 Water Courses. 
 
 Together with a Brief Summary of the Various Sources of Rivers Pollution. By 
 Clement Higgins, M.A., F.C.S., of the Inner Temple, Barrister-at-Law. In 
 one volume, 8vo, price 12s., cloth. 1877. 
 
 Houston's Stoppage in Transitu, Reten= 
 tion, and Delivery. 
 
 By John Houston, of the Middle Temple, Barrister-at-Law. In one volume, 
 demy 8vo, price 10s. 6d., cloth. 1866. 
 
 Hurst & Cecil's Principles of Commercial 
 Law. 
 
 With an Appendix of Statutes, Annotated by means of references to the Text. 
 Second Edition. By Joseph Hdrst, of the Inner Temple, Barrister-at-Law. Iti 
 one volume, 8vo, price los. 6d., cloth. 1906. 
 
 "Their compendium, we believe, will be found a really useful volume, one for the lawyer and 
 the business man to keep at his elbow and which, if not giving them all that they require, will 
 place in their hands the key to the richer and more elaborate treasures of the Law which lie in 
 larger and more exhaustive works." — Law Times. 
 
 "The object of the authors of this work, they tell us in their preface, is to state, within a 
 moderate compass, the principles of commercial law. Very considerable pains have obviously been 
 expended on the task and the book is in many respects a very serviceable one."— Law Journal. 
 
20 STEVENS &• HAYNES, BELL YARD, TEMPLE BAR. 
 
 Indermaur's Principles of the Common 
 Law. 
 
 Intended for the use of Students and the Profession. Eleventh Edition. By JOHN 
 Indermaur, Solicitor, Author of " A Manual of the Practice of the Supreme 
 Court," " Epitomes of Leading Cases,'' and other Works ; and Charles Thwaites, 
 Solicitor. In 8vo, 2Qf. 1909. 
 
 " That invaluable students' manual, Indermaur's 'Principles of the Common Law,' has entered 
 upon a tenth edition in less than- two years and a half. Assisted by Mr. Charles Thwaites, 
 the learned author has incorporated recent cases, and generally revised the work in his usual skilful 
 fashion." — Laiu Times, 
 
 " The appearance of a tenth edition of ' Indermaur on Common Law ' shows that the work has 
 established for itself a safe position. " — Solicitor^ yournal. 
 
 Indermaur's Manual of the Practice of 
 the Supreme Court of Judicature, 
 
 In the' King's Bench and Chancery Divisions. Ninth Edition. Intended for the 
 use of Students and the Profession. By John Indermaur, Solicitor. In 8vo, 
 price 15J., cloth. 1905. 
 
 "The eighth edition of Indermaur s 'Manual of Practice' (London: Stevens and Haynes), 
 chiefly called for by reason of the Order XXX., has also been partly rewritten and improved in 
 arrangement and detail. While primarily designed for students, we may mention that it will be found 
 a useful companion to the White Book." — Law Times. 1 
 
 ' The arrangement of the book is good, and references are given to the leading decisions. Copious 
 references are also given. to the rules, so that the work forms a convenient guide to the larger 
 volumes on practice. It is a very successful attempt to deal clearly and concisely with an important 
 and complicated subject." — Solicitors' Journal. 
 
 Indermaur's Leading Conveyancing and 
 Equity Cases. 
 
 With some short notes thereon, for the use of Studentsi By John Indermaur, 
 Solicitor, Author of " An Epitome of Leading Common Law Cases." Ninth 
 Edition by C. Thwaites. In 8vo, price 6s., cloth. 1903. 
 
 "The Epitome well deserves the continued patronage of the class— Students — for whom it is 
 especially intended. Mr. Indermaur will soon be known as the * Student's Friend.' "—Canada Law 
 yourtial. 
 
 Indermaur's Leading Common Law Cases; 
 
 With some short notes thereon. Chiefly intended as a Guide to " Smith's 
 Leading Cases." By C. Thwaites, Solicitor. Ninth Edition, in 8vo, price 6s., 
 cloth, 1903. 
 
 Indermaur's Articled Clerk's Guide to and 
 Self=Preparationforthe Final Examination. 
 
 Containing a Complete Course of Study, with Books to Read, List of Statutes, 
 Cases, Test Questions, &c. , and intended for the use of those Articled Clerks who 
 read by themselves. By Charles Thwaites, Solicitor. Seventh Edition, 8vo, 
 price 6s., cloth. 1906. 
 
 His advice is practical and sensible : and if the course of study he recommends is intelligently 
 followed, the articled clerk will have laid in a store of legal knowledge more than sufficient to carry 
 him through the Final Examination."— .yo/rirj/ora' Journal. 
 
 Indermaur's Judicature Acts, 
 
 And the rules thereunder. Being a book of Questions and Answers intended 
 for the use of Law Students. By John Indermaur, Solicitor. In 8vo. price 6^.. 
 cloth. 1875. ^ 
 
STEVENS &• HAYNESi BELL YARD, TEMPLE BAR. 21 
 
 Indermaur's Guide to Bankruptcy, 
 
 Being a Complete Digest of the Law of Bankruptcy in the shape of Questions 
 and Answers, and comprising all Questions asked at the Solicitors' Final Examina- 
 tions in Bankruptcy since the Bankruptcy Act, 1883, and all iinportant Decisions 
 since that Act By John Indbrmaur, Solicitor, Author of "Principles of Com- 
 mon Law," &c. &c. Second Edition, in crown 8vo, price 5^. bd., cloth. 1887. 
 
 Indermaur's Law of Bills of 5ale, 
 
 For the use of Law Students and the Public. Embracing the Acts of 1878 and 
 1882. Part L— Of Bills of Sale generally. Part IL— Of the Execution, Attesta- 
 tion, and Registration of Bills of Sale and satisfaction thereof. Part III. — Of the 
 Effects of Bills of Sale as against Creditors. , Part IV. — Of Seizing under, and 
 Enforcing Bills of Sale. Appendix, Forms, Acts, &c. By John Indermaur, 
 Solicitor. In l2mo, price 5;. (sd., cloth. 18821 
 
 Inderwick's Calendar of the Inner Temple 
 Records. 
 
 Edited by F. A. Inderwiok, Q.C. Vol. I., 21 Hen. VIL (1505)— 45 Eliz. 
 (1603). Vol. II., James I. (1603)— Restoration (1660). Vol. III., 12 Charles II. 
 (1660) — 12 Anne (1714). Imperial 8vo. Roxburghe binding. 1896. 20s. per 
 vol. net. 
 
 Jones' Law of Salvage, 
 
 As administered in the High Court of Admiralty and the County Courts ; with the 
 Principal Authorities, English and American, brought down to the present time ; 
 and an Appendix, containing Statutes, Forms, Table of Fees, &c. By Edwyn 
 Jones, of Gray's Inn, Barrister-at-Law. In crown 8vo, price \os. (xi., cloth. 
 1870. 
 
 Joyce's Law and Practice of Injunctions. 
 
 Embracing all the subjects in which Courts of Equity and Common Law have 
 jurisdiction. By William Joyce, of Lincoln's Inn, Barristerrat-Law. In two 
 volumes, royal Svo, price ^os., cloth. 1872. 
 
 Joyce's Doctrines and Principles of the 
 Law of Injunctions. 
 
 By William Joyce, of Lincoln's Inn, Barrister-at-Law. In one volume, royal 
 Svo, price 30J., cloth. 1877'. 
 
 Kay's Shipmasters and Seamen. 
 
 Their Appointment, Duties, Powers,' Rights, Liabilities^, and Remedies. By the 
 late TObEPH Kay, Esq., M.A., Q.C. Second Edition. With a Supplenient 
 comprising the Merchant Shipping Act, 1894, the Rules of Court made thereunder, 
 and the (proposed) Regulations lor Preventing Collisions at Sea. By the .Hon. 
 T W. Mansfield, M. A., and G. iW. Duncan, Esq., B.A., of the Inner Temple, 
 Barristers-at-Law. In royal 8vo, price 46^., cloth. 1895.. . , 
 
 "Tf has had oractical and expert knowledge brought to bear upon it, while the case law is 
 brought down to a veiy late date. Considerable improvement has been made in the index. - 
 Law Timei. I 1 
 
22 STEVENS Sf HAYNES, BELL YARD, TEMPLE BAR. 
 
 Kay's Merchant 5hipping: Act, 1894. 
 
 With the Rules of Court made thereunder. Being a Supplement to KAY'S LAW 
 RELATING TO SHIPMASTERS AND SEAMEN. To which are added the 
 (proposed) Regulations for Preventing Collisions at Sea. With Notes. By Hon. J. 
 W. Mansfield, M.A., and G. W. Duncan, B.A., of the Inner Temple, Barristers- 
 at-Law. In royal 8vo, price loj. bd., cloth. 1895. 
 
 Kelyn§:'s (5ir John) Crown Cases. 
 
 Kelyng's (Sir J.) Reports of Divers Cases in Pleas of the Crown in the Reign of 
 King Charles II., with Directions to Justices of the Peace, and others; to which are 
 added, Three Modern Cases, viz., Armstrong and Lisle, the King and Plummer, 
 the Queen and Mawgridge. Third Edition, containing several additional Cases 
 never before printed, together with a Treatise upon the Law and Proceedings 
 in Cases of High Treason, first published in 179.3. The whole carefully revised 
 and edited by Richard Loveland Loveland, of the Inner Temple, Barrister- 
 at-Law. In 8vo, price 4/. +?., calf antique. 1873. 
 
 ' ' We look upon this volume as one of the most important and valuable of the unique reprints of 
 Messrs. Stevens and Haynes. Little do we know of the mines of legal' wealth that lie buried in the 
 old law books. But a careful examination, either ol the reports or of the treatise embodied in the 
 volume now bef ire us, will give the reader some idea of the good service rendered by Messrs. Stevens 
 and Haynes to the profession. . . . Should occasion arise, the Crown prosecutor, as well as counsel 
 for the prisoner, will find in this volume a complete vade mecunt of the law of high treason and 
 proceedings in relatiop thereto " — Canada haio 'journal. 
 
 Kelynge's (W.) Reports. 
 
 Kelynge's (William) Reports of Cases in Chancery, the King's Bench, &c., from 
 the 3rd to the 9th year of his late Majesty King George II., during which time 
 Lord King was Chancellor, and the Lords Raymond and Hardwicke were Chief 
 Justices of England. To which are added, seventy New Cases not in the First 
 Edition. Third Edition. In one handsome volume, 8vo, price 4/. 4J., calf antique. 
 1873. 
 
 Lloyd's Law of Compensation for Lands, 
 Houses, &c. 
 
 Under the Lands Clauses Consolidation Acts, the Railways Clauses Consolidation 
 Acts, the Public Health Act, 1875, the Housing of the Working Classes Act, 1890, 
 the Metropolitan Local Management Act, and other Acts, with a full collection of 
 Forms and Precedents. By Eyre Lloyd, ol the Inner Temple, Barrister-at-Law. 
 Sixth Ldition. ' By W. J. Brooks, of the Inner Temple, Barrister-at-Law. In 
 8vo, price 2.U., cloth. 1895. 
 
 " In providing the legal profession with a book which contains the decisions of the Courts of Law 
 and Equity upon the various statutes relating to the Law of Compensation, Mr. £yre Lloyd has 
 long since left all competitors in the distance, and his book may now be considered the standard 
 work upon the subject. The plan of Mr. Lloyd's book is generally known, and its lucidity is 
 appreciated ; the pre-ent quite fulfils all the promises of the preceding editions, and contains in 
 addition to other' matter a complete set of forms under the Artizans and Labourers Act, 1875, and 
 specimens of Bills of Costs, which will be found a novel feature extremely useful to legal 
 practitioners." — y-ustice of the Peace. 
 
 Lloyd's 5uccession Laws of Christian 
 Countries. 
 
 With special reference to the Law of Primogeniture as it exists in England. By 
 Eyre Lloyd, B.A., Barrister-at-Law. In 8vo, price is., cloth. iS'^-i _^ 
 
STEVENS &' HAYNES, BELL YARD, TEMPLE BAR, 23 
 
 Marcy's Epitome of Conveyancing 
 Statutes, 
 
 Extending from 13 Edw. I. to the End of 55 and 56 Victorise. Fifth Edition, with 
 Short Notes. By George Ntchols Marcy, of Lincoln's Inn, Barrister-at-Law. 
 In crown 8vo, price \2s. td., cloth. 1893. 
 
 Martin's Law of Maintenance and Deser= 
 tion, and the Orders of the Justices thereon. 
 
 Second Edition, including the Law of Affiliation and Bastardy. With an 
 Appendix of Statutes and Forms, including the Summary Jurisdiction (Married 
 Women's) Act of 1895. By Temple Chevalier Martin, Chief Clerk of the 
 Lambeth Police Court, Editor of the " Magisterial and Police Guide," &c., and 
 George Temple Martin, M.A., of Lincoln's Inn, Barrister-at-Law. In 8vo.- 
 price gj., cloth. 1896. 
 
 Mathews' Guide to Law of Wills. 
 
 By A. G. Mathews, of the Inner Temple, Barrister-at-Law. In i2mo, 
 price 7 J. td. 1908. 
 
 May's Statutes of Elizabeth against 
 Fraudulent Conveyances, 
 
 The Bills of Sale Acts 1878 and 1882 and the Law of Voluntary Dispositions of 
 Property. By the late H. W. May, B.A. (Ch. Ch. Oxford). Third Edition, 
 thoroughly revised and enlarged, by William Douglas Edwards, LL.B., of 
 Lincoln's Inn, Barrister-at-Law; Author of the "Compendium of the Law of 
 Property in Land," &c. In royal 8vo, price los. net, cloth. 1908. 
 
 Mayne's Treatise on the Law of Damages. 
 
 Eighth Edition, by His Honour Judge Lumley Smith, K.C. In 8vo, price 28j,, 
 cloih. 1909. 
 
 "It would be superfluous to say more of this notable book than that this is the seventh edition, 
 and that its original author and his co-editor, Judge Lumley Smith of the City of London Court, 
 have written ^e preface to this issue of it, nearly fifty years after the issue o^ the first. The last 
 edition was in 1899, and the present, carefully revised and corrected, brings up to date all the 
 English and Irish decisions bearing on the Law of Damages."— i'a^Kn^atj? Review, 
 
 Mayne's Treatise on Hindu Law and 
 Usage. 
 
 By John D. Mayne, ot the Inner Temple, Barrister-at-Law, Author of "A 
 Treatise on Damages," &c. Seventh Edition, 8vo, 3Qr. net. 1906. 
 
 Moore's History of the Foreshore and the 
 Law relating thereto. 
 
 With a hitherto unpublished Treatise by Lord Hale, Lord Hale's " De Jure Maris,'' 
 and the Third Edition of Hall's Essay on the Rights of the Crown in the Sea-shore, 
 with Notes, and an Appendix relating to Fisheries. By Stuart A. MoorEj 
 F.S.A., of the Inner Temple, Barrister-at-Law. In one volume, medium 8vo, price 
 38^., cloth ; or in half-roxbuigh, 42.?. 1888. 
 " Mr. Moore has written a book of great importance which should mark an epoch in the history 
 
 of the rights of the Crown and the subject in the litus maris, or foreshore of the kingdom 
 
 The Profession, not to say the general public, owe the learned author a deep debt of gratitude for 
 providing ready to hand such a wealth of materials for founding and building up arguments. 
 Mr. Stuart Moore has written a work which must, unless his contentions are utterly unfounded, at 
 once become the standard text-book on the law of the Sea-shore,"— Z.aa/ Times. 
 
24 STEVENS &■ HAYNES, BELL YATtD, TEMPLE BAR. 
 
 Moore'5 History and Law of Fisheries. 
 
 By Stuart A. Moore, F.S.A., and Hubert Stuart Moore, of the Inner 
 Temple, Barristers-at-Law. In one volume, royal 8vo, price z\s. 1903. 
 Contents : Part I. — Introduction. — Chapter I. Of the evidence as to fisheries 
 in the Domesday Book; II, Of putting rivers in defence; III. Of presump- 
 tions with regard to fisheries ; IV. Of the presumption of ownership of the soil 
 by the owner of the fishery; V. Of the origin and subdivision of fisheries; VI. 
 Of the different kind of fisheries ; VII. Of the various descriptions of fisheries in 
 ancient records ; VIII. Incorporeal fisheries in tidal water ; IX. Incorporeal 
 fisheries in non-tidal water ; X. ■ Of fishery appurtenant to or parcel of a manor ; 
 XI. Of fishery appurtenant to a particular tenement ; XII. Copyhold fisheries. 
 XIII. Of fisheries in gross ; XIV. Of divided fisheries and the Royal draught ; XV. 
 Of fisheries in ponds and lakes and the ownership of the soil ; XVI. Of fisheries in 
 canals and artificial watercourses ; XVII. Of fishery in relation to navigation ; 
 XVIII. Of fishing paths ; XIX. Of the public right of fishery and its limits ; XX. 
 Of boundaries of fisheries ; XXI. Of change in the course of a river, and its effect 
 upon the ownership of the fishery therein ; XXII. Of grants of fisheries ; XXIII. 
 Of evidence of title to fisheries ; XXIV. Of evidence of possession of fisheries in 
 proving title ; XXV. Of the effect of user by the public and others adverse to 
 the owner of a fishery ; XXVI. Of the powers of an owner of a fishery to lease and 
 license, &c. ; XXVII. Of proceedings for the protection of fisheries. Part II. — 
 Statute LaAv relating to Fisheries. — I. Summary of legislation relating to fish 
 and fisheries ; II. Regulation of sea fisheries ; III. Registration and discipline of sea 
 fishing boats ; IV. Statutory provisions relating to fisheries generally ; V. Statutory 
 provisions relating to floating fish ; VI. Statutory provisions relating to shell fish ; 
 VII, Regulation of salmon and fresh-water fisheries ; VIII. Powers of Boards of 
 Conservators ; IX. Water bailiffs ; X. Statutory provisions as to the capture and 
 destruction of salmon and fresh-water fish ; XI. Close seasons ; XII. Licenses ; 
 XIII. Sale and exportation of fish. Appendices : Statutes with notes relating 
 thereto ; Sea and Salmon Acts ; List of Sea and Salmon Fishery Districts ; Orders in 
 Council as to registration of sea fishing boats ; List of fisheries referred to in 
 Domesday Book ; List of fisheries referred to in notes of ancient records in the 
 Author's collection ; Index. 
 
 Morgan. — A Practical Analysis of the 
 Public Trustee Act, 1906, 
 
 By P. W. Morgan, Barrister-at-Law. In crown 8vo, \s. bd. net. 
 
 Norton =Kyshe's Law and Privileges 
 relating to the Attorney = General and 
 5olicitor=Qeneral of England. 
 
 With a History from the Earliest Periods, and a Series of King's Attorneys and 
 Attorneys and Solicitors-General from the reign of Henry III. to the 6oth of 
 Victoria. By J. W. Norton-Kyshe, of Lincoln's Inn, Barrister-at-Law. In 
 8vo, price \as. 6d. net. 1897. 
 
 Norton =Kyshe's Law and Customs relat= 
 ing to Gloves. 
 
 Being an Exposition Historically viewed of Ancient Laws, Customs, and Uses in 
 respect of Gloves and of the Symbolism of the Hand and Glove in Judicial Pro- 
 ceedings. With Illustrations. By J. W. Norton-Kvshe, of Lincoln's Inn, Esq., 
 Barrister-at-Law. In crown 8vo, ^s. net, cloth. 1901. 
 
 O'Malley & Hardcastle's Reports of the 
 Decisions of the Judges for the Trial of 
 Election Petitions, in England and Ireland. 
 
 Pursuant to the Parliamentary Elections Act, 1868. By Edward Loughlin 
 O'Malley and Henry Harijcas i le. Vol. IV.' Part III. and all after are 
 Edited by J. S. Sandars and A, P. P. Keep, Barristers-at-Law. Vols. I., II., III., 
 IV., and v., Parts I., II. and III., price 5/. 12s. 
 
STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. 26 
 
 Peile's Law and Practice of Discovery in 
 the Supreme Court of Justice. 
 
 With an Appendix of Forms, Orders, &c., and an Addenda giving the Alterations 
 under the New Rules of Practice. By Clarence J. Peile, of the Inner Temple, 
 Barrister-at-Law. In 8vo, price I2s., cloth. 1883. 
 
 Pemberton's Judgments, Orders, and 
 Practice of the Supreme Court, 
 
 Chiefly in respect to actions assigned to the Chancery Division. By LoFTUS 
 Leigh Pemberton, one of the registrars of the Supreme Court of Judicature ; and 
 Author of " The Practice in Equity by way of Revivor and Supplement." Fourth 
 Edition, in royal 8vo, price 40^., cloth. 1889. 
 
 Pemberton's Practice of Equity by Way 
 of Revivor and Supplement. 
 
 With Forms of Orders and Appendix of Bills. By Loftus Leigh Pemberton, 
 of the Chancery Registrar's Office. In royal 8vo, price \os. dd., cloth. 1867. 
 
 Phipson's Law of Evidence. 
 
 By S. L. Phipson, M.A., of the Inner Temple, Barrister-at-Law. Fourth Edition, 
 in demy 8vo, price 15J., cloth. 1907. 
 
 " This valuable book of reference has been brought up to date by the inclusion of the Criminal 
 Evidence Act, 1898, and the changes wrought by it in the Law of JEvldence." — Cambridge Review. 
 
 " Mr. Phipson's Is certainly one of the most useful works on an important and difficult subject. That 
 it is appreciated by the profession is obvious, or it would not in ten years have reached a third 
 edition." — Oxford Magazine. 
 
 " . . ... The work is a happy medium between a book of the type of Stephen's Digest, and the 
 large treatises upon the subject, and owing to its excellent arrangement is one that is well suited 
 both to practitioners and students." — Law Times. 
 
 Phipson's Manual of the Law of Evidence. 
 
 Being an abridgement of the larger treatise. By S. L. Phipson, M.A., of the 
 Inner Temple, Barrister-at-Law. In crown 8vo, "js. bd. 1908. 
 
 Porter'5 Laws of Insurance: Fire, Life, 
 Accident, and Guarantee. 
 
 Embodying Cases in the English, Scotch, Irish, American, and Canadian Courts. 
 By Jambs Biggs Porter, of the Inner Temple, Barrister-at-Law; assisted by 
 W. Fkilden Craies, M.A. Fifth Edition, in 8vo, 2ij. 1908. 
 
 " The successive editions of this book which have been called for shew that the profession 
 appreciate the advantage of having the law as to the various forms of assurance, except Marine 
 Insurance which forms a branch quite by itself, collected in one volume. . . . The. work is clearly 
 written, and this edition has been brought up to date by the inclusion of a large number of recent 
 czse^," Solicitors' youmal. 
 
 Porter. A Manual of the Law of Principal 
 and Agent. 
 
 By James Biggs Porter, Barrister-at-Law. In 8vo, price loj. dd., cloth. 1905. 
 
 Renton's Law and Practice in Lunacy. 
 
 With the Lunacy Acts, 1890-91 (Consolidated and Annotated) ; the Rules of 
 Lunacy Commissioners ; the Idiots Act, 1886 ; the Vacating of Seats Act, 1886 ; 
 the Rules in Lunacy; the Lancashire County (Asylums and other powers) Act, 1891 ; 
 the Inebriates Act, 1879 and 1888 (Consolidated and Annotated); the Criminal 
 Lunacy Acts, 1800-1884 ; and a Collection of Forms, Precedents, &c. By A. 
 Wood ReNton, Barrister-at-Law. In one Volume, royal 8vo, price SO.r. net. 1897. 
 
26 STEVENS <S- UAYNES, BELL YARD, TEMPLE BAR. 
 
 Ringwood's Principles of Bankruptcy. 
 
 Embodying the Bankruptcy Acts, 1883 and 1890, and the Leading Cases thereon ; 
 Part of the Debtors Act, 1869 ; The Bankruptcy Appeals (County Courts) Act, 
 1884; The Bankruptcy (Discharge and Closure) Act, 1887; The Preferential Pay- 
 ments in Bankruptcy Acts, 1888 and 1897 : with an Appendix containing the 
 Schedules to the Bankruptcy Act, 1883 ; The Bankruptcy Rules, 1886, 1S90, and 
 1891 ; the Rules as to the Committal of Judgment Debtors, and as to Administration 
 Orders ; Regulations Issued by the Bankruptcy Judge ; a Scale of Costs, Fees, and 
 Percentages ; The Bills of Sale Acts, 1878, 1882, 1890, and 1891, and the Rules 
 thereunder ; The Deeds of Arrangement Act, 1887 ; and the Rules thereunder. 
 By RiCHAKD RiNGWOOD, M.A., of the Middle Temple, Barrister-at-Law ; late 
 Scholar of Trinity College, Dublin. Tenth Edition, in 8vo, price \Qs. 6rf., cloth. 
 1908. 
 
 "We welcome a new edition of this excellent student's book. We have written favourably of 
 it in reviewing previous editions, and every good word we have written we would now reiterate 
 and perhaps even more so. . . . In conclusion, we congratulate Mr. Ringwood on this edition, 
 and have no hesitation in saying that it is a capital student's book."— Z-aw Students' yonrnal. 
 
 ""I'his edition is a considerable improvement on the first, and although chiefly written for the 
 use of students, the work will be found useful to the practitioner." — Law Times. 
 
 "The author deals with the whole history of a bankruptcy from the initialact of bankruptcy 
 down to the discharge of the bankrupt, and a cursory perusal of his work gives_ the impression 
 that the book will prove useful to practitioners as well as to students. The appendix also contains 
 much matter that will be useful to practitioners, Including the Schedules, the Bankruptcy Rules 
 of 1886, 1890 and 1891, the Rules of the Supreme Court as to Bills of Sale, and various Acts of 
 Parliament bearing upon the subject. The Index is copious." — Accountant's Magazine. 
 
 Ringwood's Outlines of the Law of Torts. 
 
 Prescribed as a Textbook by the Incorporated Law Society of Ireland, By 
 Richard Ringwood, M.A., of the Middle Temple, Barrister at-Law ; author 
 of "Principles of Bankruptcy," etc., and Lecturer on Common Law to the 
 Incorporated Law Society. Fourth Edition, in 8vo, price los. 6d,y cloth. 1906. 
 
 "We have always had a great liking for this work, and are very pleased to see by the appearance 
 of a new Edition that it is appreciated by students. We consider that for the ordinary student who 
 wants to take up a separate work on Torts, this is the best book he can read, for it is clear and 
 explanatory, and has good illustrative cases, and it is all contained in a very modest compass. 
 . . . This Edition appears to have been thoroughly revised, and is, we think, in many respects 
 improved." — Law Students' Journal. 
 
 " The work is one we well recommend to law students, and the able way in which it is written 
 reflects much credit upon the author." — Law Times. 
 
 Ringwood's Outlines of the Law of Banking. 
 
 In crown i2mo, price 5^., cloth. igo6. 
 "... The book is in a most convenient and portable form, and we can heartily commend the latest 
 production of this well-known writer to the attention of the business community." — Financial Times. 
 
 Rowlatt's Law of Principal and Surety. 
 
 By S. A. T. RowLATT, M.A., late Fellow of King*s College, Cambridge; of the 
 Inner Temple, Barrister-at-Law. In 8vo, price l6s. 1899. 
 
 "... Here will be found all the rights and liabilities of the surety, his defences, his releases, 
 the effect of bankruptcy, and so on ; and, as we said at the outset, the index forms a most 
 excellent and comprehensive guide to the text. . . . We can quite believe that this text-book will 
 take a respectable place among legal authorities." — Law Times. 
 
 "He brings out fully in all its ramifications the nature of the law of guarantee.'' — Saturday 
 Review. 
 
 " Few branches of the law are more important or difficult than that relating to sureties. The 
 latest addition to legal literature is a treatise by Mr. S. A. T. Rowlatt on 'The Law of Principal 
 and Surety,' which deals with the subject both exhaustively and ably. The work is excellent 
 in style and arrangement, and ought to prove very useful to every lawyer who has occasion to refer 
 to It.*— Globe. 
 
 "There are too many works on most branches of the English Law, and too many writers eager to 
 make books on almost every legal subject, however small. It is, therefore, a remarkable fact that 
 a subject so important as the Law of Sureties has been comparatively neglected, there being only 
 one recent work of repute devoted entirely to the subject. For this reason we welcome Mr. 
 Rowlatt's treatise, which has solid merits that ought to insure success. The book is a very go«d 
 one, and the author may be congratulated on the successful accomplishment of a dlfiicult task." 
 — Law Journal. 
 
STEVENS &• HAYNES, BELL YARD, TEMPLE BAR. 27 
 
 Salkowski's Institutes and History of 
 Roman Private Law. 
 
 With Catena of Texts. By Dr. Carl Salkowski, Professor of Laws, Konigsterg. 
 Translated and Edited by E. E. Whitfield, M.A. (Oxon.). In 8vo, price 321., 
 doth. 1886. 
 
 Salmond's Jurisprudence ; or, Tlieory of 
 the Law. 
 
 By John W. Salmond, M.A., !LL.B., Barrister-at Law; author of "Essays in 
 Jurisprudence and Legal History." Second Edition. In demy 8vo, price 12s. 6d., 
 net, cloth. 1907. 
 
 Salmond's Essays in Jurisprudence and 
 Legal History. 
 
 By John W. Salmond, M.A., LL.B. (Lond.), a Barrister of the Supreme Court of 
 New Zealand. In crown 8vo, price 6j., cloth. 1891. 
 
 Salmond's Law of Torts. 
 
 A Treatise on the English Law of Liability for Civil Injuries. By John W. 
 Salmond, M. A., LL.B., Barrister-at-Law. In Svo, price i%s. net, cloth. 1907. 
 
 Savigny's Treatise on Obligations in 
 Roman Law. 
 
 By Archibald Bbown, M.A., Edin. and Oxon., and B.C.L. Oxon., of the 
 Middle Temple, Barrister-at-Law. In Svo, 1872, price Ts. 6d., cloth. 1872. 
 
 Scott's Abstract Drawing. 
 
 Containing Instructions on the Drawing of Abstracts of Title, and an Illustrative 
 Appendix. By C. E. Scott, Solicitor. In crown Svo, price 4?. 6d., cloth. 1892. 
 
 "This little book is intended for the assistance of those who have the framing of abstracts of 
 title entrusted to their care. It contains a number of useful rules, and an illustrative appendix. — 
 Laiv Times. 
 
 " A handy book for all articled clerks."— Xal* Students Journal. . . . u ■ 
 
 " Solicitors who have articled clerks would save themselves much trouble if they furnished their 
 clerks with a copy of this little book before putting them on to draft an abstract of a heap of title 
 deeds."— Zrtw Notes. .,,,,.. u j .?. ^ 
 
 " The book ought to be perused by all law students and articled clerks. —Kea 1 ape. 
 
 Seager's Law of Parliamentary Registra= 
 tion. 
 
 With an Appendix of Statutes and Full Index. By J. R. Seager, Registration 
 Agent. In crown Svo, price +f., cloth. 1881. 
 
 Short & Mellor's Practice on the Crown 
 Side of the Queen's Bench Division of Her 
 Majesty's High Court of Justice. 
 
 (Founded on Corner's Crown Office Practice), including Appeals from Inferior 
 Courts; with Appendices of Rules and Forms. Second Edition. By F.H. Short, 
 Chief Clerk of the Crown Office, and Francis Hamilton Mellor, M.A., K.C. 
 In Svo, price 30^., cloth. 1908. 
 
 Short's Crown Office Rules and Forms, 
 
 The Supreme' Court of Judicature Acts and Rules of the Supreme Court, 1883, 
 relating ^o the Practice on the Crown side of the Queen's Bench Division ; including 
 aSs from Inferior Courts, Tables of Court Fees, Scales of Costs ; together wUh 
 Notes, Cases, and a Full Index. By F. H. Short, Chief Clerk of the Crown 
 Office. In Svo, priee I2i., cloth. 1886. 
 
28 STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. 
 
 Short's Taxation of Costs in the Crown 
 Office. 
 
 Comprising a Collection of Bills of Costs in the Various Matters Taxable in that 
 Office, including Costs upon the Prosecution of Fraudulent Bankrupts and on 
 Appeals from Inferior Courts ; together with a Table of Court Fees, and a Scale of 
 Costs usually allowed to Solicitors, on the Taxation of Costs on the Crown Side of 
 the Queen's Bench Division of the High Court of Justice. By Fredk. H. Short, 
 Chief Clerk in the Crown Office. In 8vo, price lOj., cloth. 1879. 
 
 Shower's Cases in Parliament 
 
 Resolved and Adjudged upon Petitions and Writs of Error. Fourth Edition. 
 Containing additional cases not hitherto reported. Revised and Edited by 
 Richard Loveland Loveland, of the Inner Temple, Barrister-at-Law ; Editor 
 of "Kelyng's Crown Cases," and "Hall's Essay on the Rights of the Crown in 
 the Seashore." In 8vo, price 4/. 4J., best calf binding. 1876. 
 
 Simpson's Law and Practice relating to 
 Infants. 
 
 By Archibald H. Simpson, M.A., of Lincoln's Inn, Barrister-at-Law, and 
 Fellow of Christ's College, Cambridge. Third Edition. By E. J. Elgood, 
 B.C.L., M.A., of Lincoln's Inn, Barrister-at-Law. In 8vo, z\s. 1909. 
 
 Slater's Law of Arbitration and Awards. 
 
 With Appendix containing the Statutes relating to Arbitration, and a collection 
 of Forms and Index. Fourth Edition. ' By Joshua Slater, of Gray's Inn, 
 Barrister-at-Law. Crown 8vo, price 6j. (id., cloth. 1905. 
 
 Slater's Principles of Mercantile Law. 
 
 By Joshua Slater, of Gray's Inn, Barrister-at-Law. Third Edition. Crown 
 8vo, price 6j. dd., cloth. 1907. 
 
 Smith's Law and Practice in the Ecclesi- 
 astical Courts. 
 
 For the use of Students. By Eustace Smith, of the Inner Temple ; author of 
 "A Summary of Company Law" and " A Summary of the Law and Practice in 
 Admiralty." Fifth Edition, in 8vo, 8^. 1902. 
 
 " His object has been, as he tells us in his preface, to give the student and general reader a fair 
 outline of thescope and extent of ecclesiastical law, of the principles on which it is founded, of the 
 Courts by which it is enforced, and the procedure by which these Courts are regulated. We think 
 the book well fulfils its object. Its value is much enhanced by a profuse citation of authorities for 
 the propositions contained in it." — Bar Examination jfonrfiai. 
 
 Smith's Law and Practice in Admiralty. 
 
 For the use of Students. By Eustace Smith, of the Inner Temple ; author of 
 
 " A Summary of Company Law." Fourth Edition, in 8vo, price ioj-., cloth. 1892. 
 
 ''1'he book is well_ arranged, and forms a good introduction to the s\j.h\sct." Soiicitors' JourttaL 
 
 * It is, however, in our opinion, a well and carefully written little work, and should be in the 
 
 hands of every student who is taking up Admiralty Law at the Final."— Z.a7« Students' Jtmnial. 
 
 ■ Mr. Smith has a happy knack of compressing a large amount of useful matter in a small compass. 
 The present work will doubtless be received with satisfaction equal to that with which his previous 
 Summary' has been \neX."— Oxford and Cambridge Undergraduates' youmal. 
 
 Smith's Quarter Sessions Practice. 
 
 A Vade Mecum of General Traclice in Appellate and Civil Cases at Quarter 
 Sessions. By Frederick James Smith, of the Middle Temple, Barrister-at-Law, 
 and Recorder of Margate. In Royal l2mo, price 20J-., cloth. 1882.. 
 
STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. 29 
 
 Smith's Short Practical Company Forms. 
 
 By T. Eustace Smith, of the Inner Temple and Lincoln's Inn, Barrister-at-Law, 
 Author of "A Summary of the Law of Companies, " etc., assisted by Roland E. 
 Vaughan Williams, of the Inner Temple, Barrister-at-Law. In 8vo, price %s., 
 cloth. 1S96, 
 
 " This 'Collection of Company Forms should certainly prove of service to secretaries, directors, 
 and others interested in the practical working of companies. . . . The forms themselves are short 
 and to the point." — Laiv Times. 
 
 Smith's Summary of Joint Stock Com= 
 panies' Law under the Companies (Con= 
 solidation) Act, 1908. 
 
 By T. Eustace Smith, Barrister-at-Law. Eleventh Edition, in 8vo, price *js. 6d, 
 cloth. 1909. 
 
 "The author of this handbook tells us that, when an articled student reading for the final 
 examination, he felt the want of such a work as that before us, wherein could be found the main 
 principles of a law relating to joint-stock companies . . . Law students may well read it ; for 
 Mr. Smith has very wisely been at the pains of giving his authority for all , his statements of the law 
 or of practice, as applied to joint-stock company business usually transacted in solicitors' chambers. 
 In fact, Mr. Smith has by his little book offered a fresh inducement to students to make themselves — 
 at all events, to some extent — acquainted with company law as a separate branch of study. '''; — Levut 
 Times. 
 
 "These pages ^ve, in the words of the Preface, ' aS briefly and concisely as possible a general 
 view both of the principles and practice of the law affecting companies.' The work is excellently 
 printed, and authorities are cited ; but in no case is the very language of the statutes copied. The 
 plan is good, and shows both grasp and neatness, and, both amongst students and laymen, 
 Mr. Sixuth's book ought to meet a ready sale." — Law youmal. 
 
 Snell's Principles of Equity. 
 
 Intended for the use of Students and the Profession. By EpMUND H. T. Snell, 
 of the Middle Temple, Barrister-at-Law. Fifteenth Edition. By Archibald 
 Brown, M.A. Edin. and Oxon., and B.C.L. Oxon., of the Middle Temple, 
 Barrister-at-Law ; Author of " A New Law Dictionary," ''An Analysis of Savigny 
 on Obligations," and the " Law of Fixtures." In 8vo, price 2\s., cloth. 1908. 
 
 South African Republic, 
 
 Cases decided in the High Court of the, during the Year 1893, as reported by 
 J. B. M. HertZOG, B.A., LL.D., (late) First Puisne Judge of the Orange Free 
 State, formerly an Advocate of the High Court of the South African Republic. 
 Translated by J. Woodford S. Leonard, B.A., LL.B., formerly an Advocate of 
 the High Court of the South African Republic, Advocate of the Supreme Court of 
 the Transvaal Colony. And revised by the Hon. J. G. K0Tz6, K.C., late Chief 
 Justice of the South African Republic, subsequently Attorney-General of Rhodesia, 
 and now Judge President of the Eastern Districts' Court in the Cape Colony. In 
 royal 8vo, bound in half-calf, price 50^. net ; postage is. extra. 
 
 South African Republic, 
 
 The Official Reports of the High Court of, translated into English, with Index 
 and Table of Cases. By Walter S. Webber, and revised by the Hon. J. G. 
 KOTZ^, K.C., Late Chief Justice of the South African Republic, subsequently 
 Attorney-General of Rhodesia, and now Judge President of the Eastern Districts' 
 Court in the Cape Colony. Vol. I.— 1894. Vol. II.— 1895. Vol. HI.— 1896. 
 Vol. IV.— 1897. Translated by the Hon. Mr. Justice KoTZiS. In royal 8vo, 
 bound in half-calf, price Sos. net each ; postage u. extra. 
 
 Story's Commentaries on Equity Juris= 
 prudence. 
 
 Second English Edition, from the Twelfth American Edition. By W. E. Grigsby, 
 LL.D. (Lond.), D.C.L. (Oxon.), and of the Inner Temple Barrister-at-Law 
 In roval 8vo, iioo pages, price 4S-f., cloth. 1892. 
 
 •' It is hieh tesfimony to the reputation of Story, and to the editorship of Dr. Grigsby, that another 
 edition should have been called for. ... The work has been rendered more perfect by additional 
 Indices." — Law Times. 
 
30 STEVENS &• HAYNES, BELL YARD, TEMPLE BAR. 
 
 Tarring' s Chapters on the Law relating 
 to the Colonies. 
 
 To which are appended Topical Indexes of Cases degided in the Privy Council on 
 Appeal from the Colonies, Channel Islands and the Isle of Man, and of Cases 
 relating to the Colonies decided in the English Courts otherwise than on Appeal from 
 the Colonies. By Charles James Tarring, M.A., sometime Judge of H.B.M.'s 
 Consular Court, Constantinople, and H.M.'s Consul; late Chief Justice of Grenada, 
 W. Indies; Author of "British Consular Jurisdiction in the East," "A Turkish 
 Grammar," &c. Third Edition, much enlarged, in 8vo, price 2IJ., cloth. 1906. 
 
 Contents : — ^Table of Cases Cited — Table of Statutes Cited. Introductory : Defi- 
 nition of a Colony. — Chapter I. The laws to which the Colonies are subject : 
 Section I. In newly-discovered countries; Section 2. In conquered or ceded 
 countries; Section 3. Generally. — Chapter II. The Executive; Section i. The 
 Governor (A. Nature of his office, power, and duties — B. Liability to answer for 
 his acts : I. Civilly — I. (a.) In the courts of his Government, b. In the English 
 courts. 2. For what causes of action. II. Criminally) — Section 2. The Executive 
 Council. Chapter III. The Legislative Power : Section i. Classification of 
 Colonies ; Section 2. Colonies with responsible government ; Section 3. Privileges 
 and powers of colonial' Legislative Assemblies. Chapter IV. The Judiciary and 
 the Bar. Chapter V. Appeals from the Colonies. Chapter VI. Imperial Statutes 
 relating to the Colonies. Section I. Imperial Statutes relating to the Colonies 
 in general ; Section 2. Subjects of Imperial Legislation relating to the Colonies 
 in general ; Section 3. Imperial Statutes relating to particular Colonies. Topical 
 Index of Cases decided in the Privy Council on appeal from the Colonies, the 
 Channel Islands, and the Isle of Man. Index of some Topics of English Law 
 dealt with in the Cases. Topical Index of Cases relating to the Colonies decided 
 in the English Courts otherwise than on appeal from the Colonies. Index of 
 Names of Cases. Appendix I. Appendix II. General Index. 
 
 Tarring's British Consular Jurisdiction in 
 the East. 
 
 With Topical Indices of Cases on Appeal from, and relating to. Consular Courts and 
 Consuls ; also a Collection of Statutes concerning Consuls. By C. J. Tarring, 
 M. A., Chief Justice of Grenada. In 8vo, price 7^. 6(^., cloth. 1887. 
 
 Tarring' s Analytical Tables of the Law of 
 Real Property. 
 
 Drawn up chiefly from Stephen's Blackstone, with Notes. By C. J. Tarring, of 
 the Inner Temple, Barrister -at-Law. In royal 8vo, price 5^., cloth. 1882. 
 
 ** Great care and considerable skill have been shown in the compilation of these tables, which 
 will be found of much service to students of the Law of Real Property." — Law Times. 
 
 TaswelNLangmead's English Constitu= 
 tional History. 
 
 From the Teutonic Invasion to the Present Time. Designed as a Text-book for 
 Students and others. By T. P. Taswell-Langmead, B.C.L., of Lincoln's Inn, 
 Barrister-at-Law, formerly Vinerian Scholar in the University and late Professor of 
 Constitutional Law and History, University College, London. Sixth Edition, 
 Revised throughout, with Notes. By Philip A. Ashworth, Barrister-at-Law; 
 Translator of Gneist's " History of the English Constitution." In 8vo, price 15^., 
 cloth, 1905. 
 
 Thomas's Leading Statutes Summarised. 
 
 For the Use of Students. By Ernest C. Thomas, Bacon Scholar of the Hon. 
 Society of Gray's Inn, late Scholar of Trinity College, Oxfoid ; author of " Leading 
 Cases in Constitutional Law Briefly Stated. " In one volume, 8vo, price 9^. , cloth. 1878. 
 
STEVENS &> HAYNES, BELL YARD, TEMPLE BAR. 31 
 
 Thomas's Leading: Cases in Constitutional 
 Law. 
 
 Briefly Stated, with Introduction and Notes. By Ernest C. Thomas, Bacon 
 Scliolar of the Hon. Society of Gray's Inn, late Scholar of Trinity College, Oxford. 
 Fourth Edition by C. L. AttenBorough, of the Inner Temple, Barrister-at-Law. 
 In 8vo, enlarged, price 6s., cloth. 1908. 
 
 Thwaites's Articled Clerk's Guide to the 
 Intermediate Examination, 
 
 As it now exists on Stephen's Commentaries. Containing a complete Scheme of 
 Work, Notes and Test Questions on each Chapter : List of Statutes. Also a com- 
 plete Selected Digest of the whole of the Questions and Answers set at the 
 Examinations on those parts of " Stephen " now examined on, up to January, 
 1902. Intended for the use of all Articled Clerks who have not yet passed the 
 Intermediate Examination. Charles Thwaites, Solicitor. In 8vo, price los. 
 net, cloth. 1902. 
 
 Trial of Adelaide Bartlett for Murder. 
 
 Complete and Revised Report. Edited by Edward Beal, B.A., of the Middle 
 Temple, Barrister-at-Law. With a Preface by Sir Edward Clarke, K.C. In 8vo, 
 price ios., cloth. 1886. 
 
 Van Leeuwen's Commentaries on the 
 Roman = Dutch Law. 
 
 Revised and Edited with Notes in Two Volumes by C. W. Decker, Advocate. 
 Translated from the original Dutch by J. G. KoTZift, LL.B., of the Inner Temple, 
 Barrister-at-Law, and Chief Justice of the Transvaal. With Facsimile Portrait in 
 the Edition by Decker of 1780. In 2 Vols., royal 8vo, price 90J., cloth. 1887. 
 
 Waite's Questions on Equity. 
 
 For Students preparing for Examination. Founded on the Ninth Edition of Snell's 
 " Principles of Equity." By W. T. Waite, Barrister-at-Law, Holt Scholar of the 
 Honourable Society of Gray's Inn. In 8vo, price 2s., sewed. 1889. 
 
 Walker's Compendium of the Law relat= 
 ing to Executors and Administrators. 
 
 With an Appendix of Statutes, Annotated by means of References to the Text. 
 By W. Gregory Walker, B.A., Barrister-at-Law, and Edgar J. Elgood, 
 B.C.L., M.A., Barrister-at-Law. Fourth Edition by E. J. Elgood, B.C.L., M.A. 
 In one volume, 8vo, price 21s., cloth. 1905. 
 
 " We highly approve of Mr. Walker's arrange uent The Notes are full, and as far as we 
 
 have been able to ascertain, carefully and accurately compiled. . ... . We can commend it as 
 
 bearine on its face evidence of skilful and careful labour, and we anticipate that it will be found a 
 very icceptable substitute for the ponderous tomes of the much esteemed and valued Wilhams."— 
 
 '^'"ia.r"wilia is fortunate in his choice of a subject, and the power of treating it succinctly' ; for 
 the Donderous tomes of Williams, however satisfactory as an authority, are necessarily inconvenient 
 
 for reference as well as expensive On the whole we are inclined to think the book a good 
 
 and useful one." — Zaw yaumal. 
 
 Walker's Partition Acts, 1868 & 1876. 
 
 A Manual of the Law of Partition and of Sale, in Lieu of Partition. With the 
 Decided Cases, and an Appendix containing Judgments and Orders. By W. 
 Gregory Walker, B.A., of Lincoln's Inn, Barrister-at-Law. Second Edition, 
 in 8vo, price Ss., cloth. 1882. 
 
32 STEVENS 6- JffAYNES, BELL YARD, TEMPLE BAR. 
 
 Walker & Elgood's Administration of 
 Deceased Persons by the Chancery Division 
 of the High Court of Justice. 
 
 With an Addenda giving the alterations effected by the New Rules of 1883, and an 
 Appendix of Orders and Forms, Annotated by References to the Text. By W. 
 Gregory Walker and Edgar J. Elgood, of Lincoln's Inn, Barristers-at-Law. 
 In 8vo, price 15^., cloth, 1883. 
 
 Wertheimer'5 Law relating to Clubs. 
 
 By the late John Wertheimer, Barrister-at-Law. Third Edition, by A. W. 
 Chaster, Barrister-at-Law. In crown 8vo, price ^s. 6d., cloth. 1903. 
 
 " A convenient handbook, drawn up with great judgment and perspicuity." — Morning Post. 
 
 " Both useful and interesting to those interested in club management." — Law Times. 
 
 " This is a very neat little book on an interesting subject. The law is accurately and well 
 expressed." — Law Journal. 
 
 Westbury'5 (Lord) Decisions in the 
 European Arbitration. 
 
 Reported by Francis S. Reilly, of Lincoln's Inn, Barrister-at-Law. Part I., 
 price Ts. td., sewed. 
 
 Whiteford's Law relating to Charities, 
 
 Especially with reference to the validity and construction of Charitable Bequests and 
 Conveyances. By Ferdinand M. Whiteford, of Lincoln's Inn, Barrister-at- 
 Law. In 8vo, price 6^:, cloth. 1878. 
 
 Whiteley's Licensing Act, 1904. 
 
 By George Cecil Whiteley, M.A. Cantab., of the Middle Temple, Barrister- 
 at-Law, Editor of the Third Edition of "Whiteley's Licensing Laws," and Author 
 of "The Licensing Act, 1902." Price ^s. net. 
 
 Williams' Petition in Chancery and 
 Lunacy. 
 
 Including the Settled Estates Act, Lands Clauses Act, Trustee Act, Winding-up 
 Petitions, Petitions Relating to Solicitors, Infants, etc., etc. With an Appendix of 
 Forms and Precedents. By Sydney E. Williams, Barrister-at-Law. In one 
 volume, Svo, price i8f., cloth. 1880. 
 
 Willis's Negotiable Securities. 
 
 Contained in a Course of Six Lectures. Delivered by William Willis, Esq., K.C., 
 at the request of the Council of Legal Education. Second Edition, in Svo, price 
 "js. td., cloth. 1901. 
 
 ''No one can fail to benefit by a careful perusal of this volume." — Irish Law Times. 
 
 " We heartily commend them, not only to the student, but to everybody— lawyer and commercial 
 man alike." — Tkt Accountant. 
 
 " Mr. Willis is an authority second to none on the subject, and in these lectures he summarizes 
 for the benefit not only of .his confreres, but of the lay public the knowledge he has gained through 
 close study and lengthy experience." 
 
 Willis's Law of Contract of Sale. 
 
 Contained in a Course of Six Lectures. Delivered by William Willis, one of His 
 Majesty's Counsel. At the request of the Council of Legal Education. In 8vo, 
 price 7i.~6rf., cloth. 1902. 
 
 Wilshere's Analysis of Taswell=Lang= 
 mead's Constitutional History. 
 
 By A. M. WiLSHERB, LL.B., Barrister-at-Law, of Gray's Inn. In crown Svo, 
 price 3j. net. 1905. 
 
 BRADBURV, AGNEW & CO., LTD., PRINTERS, LONDON AND TONBRIOGE. 
 
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 HANSON'S DEATH DUTIES : B^ing the Fifth Edition of 
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