Ml' |ii Miilii..' L" l!!i 11 Employers' Liability L H S E V R L C P Assurance r A-\ I ^A (Jnrupll aiam ^t\^nxx\ Sjibraty FfE-STrKvcrs Tur-T=xnrrcrT notcmrrto^ inaeij&rr- dent of Capital TOTAL FUNDS CAPITAL SUBSCRIBED and NOT CALLED TOTAL SECURITY for POLICY HOLDERS S. STANLEY BROWN E.C. ', E.G. Railway). ! Hydraulic Jmited). wlais). 1, Limited, imited). , Limited). Co.) Limited). iOOO 00 E150,000 £198,872 £348,872 £600,000 £948,872 General Manager. 84 and 8S, KING WILLIAM STREET, LONDON, E.G. Employers' Liabilit Assurance Corpor 84 and 89, KING i Cornell University Library KD 3229.H64 3 1924 021 859 412 Offices will be removed in 1899 to HAMILTON HOUSE, VICTORIA EMBANKMENT, E.G. EMPLOYERS. In the trades affected by the WORKMEN'S COMPENSATION ACT, 1897, for every accident of occupation however arising, the Employer is liable in case of death for three years' wag^es (but not less than £150), and in case of disablement after tvro weeks, for half wages (not exceeding One Pound per week), without limit of time. This compensation is payable to or for any workman employed by the Employer or by his Sub.contractor. There is no defence of pure misadventure, of "common employment," of workman's knowledge, or of workman's contributory negligence. The only defence is the workman's serious and wilful misconduct. No contract made with the workman by which he will obtain less benefits will avail to destroy or mitigate this liability. The Employer must therefore stand this very serious risk or INSURE. In anticipation of the WORKMEN'S COMPENSATION ACT, 1897, the Corporation has compensated, without litigation and without contracting out, 96,000 sufferers. The Corporation offers indemnity against risk of Common Law, Employers' Liability Act, i88o, and WORKMEN'S COMPENSATION ACT, 1897. A communication to the Head Office or Branch Offices (see within) will secure to existing Policy Holders full protection under the new Compensation Act in addition to that already contained in their policies, with allowance for unexpired premium, and to Employers not already on the books similar protection pending agreement as to terms. Meantime, on application to the Head Office or Branch Offices (see within), rates, prospectuses, proposal forms, and forms of policy will be issued, and any information given on matters arising out of the WORKMEN'S COMPENSATION ACT, 1897. 84 and 85, KING WILLIAM STREET, LONDON, E.G. Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924021859412 THE LAW AND PEAOTIOE RELATING TO WORKMEN'S COMPENSATION AND EMPLOYERS' LIABILITY, BEING A PRACTICAL GUIDE TO THE EMPLOYEES' LIABILITY ACT, 1880; THE WOEKMEN'S COMPENSATION ACT, 1897 ; THE MATEEIAL SECTIONS OF THE FACTOEY AND WOEKSHOP ACTS, 1878 to 1895; AND LOED CAMPBELL'S ACT. BY W. ELLIS HILL, M.A. {Of the Irmer Temple and Northern Circuit), BARKISTER-AT-LAW. LONDON : WATEBLOW AND SONS LIMITED, LONDON WALL. 1898. 13 7^ 3 "7^ WATBELOW AND SONS LIMITED, DUNBTABLB AXD LONDON. CONTENTS. TABLE OF CASES v LIST OP ABBREVIATIONS x INTRODUCTION xi Chap. I. THE LIABILITY OP THE EMPLOYER AT COMMON LAW 1 „ n. THE EMPLOYERS' LIABILITY ACT, 1880 19 „ m. THE PACTOBY AND WORKSHOP ACTS 70 „ IV. LORD CAMPBELL'S ACT AND THE AMENDING STATUTE 78 „ V. NEGLIGENCE, CONTRIBUTORY NEGLIGENCE, VOLENTI NON FIT INJURIA 90 „ VI. PRACTICE IN AN ACTION UNDER THE EMPLOYERS' LIABILITY ACT, 1880 109 „ VIL THE WORKMEN'S COMPENSATION ACT, 1897 ... 123 APPENDICES. A. THE EMPLOYERS' LIABILITY ACT, 1880, WITH A DIGEST OP THE CASES DECIDED THEREON 163 B. TEXT OP 1. THE EMPLOYERS' LIABILITY ACT, 1880 ... 183 2. LORD CAMPBELL'S ACT 188 3. LORD CAMPBELL'S ACT AMENDMENT ACT 190 4. MATERIAL SECTIONS OF THE FACTORY AND WORKSHOP ACTS 192 5. WORKMEN'S COMPENSATION ACT, 1897 ... 208 C. FORMS 225 INDEX 237 TABLE OP CASES. Allen V. The New Gas Co 4, 91 Ashworth v. Stanwix 17, 93 Bacon v. Dawes & Co 167 Baddeley i>. Granville (Earl) 40,71,77,106 Barter «. Bvirt . 57,121,173 BartonehiU Coal Co. ■». Reid ... 5, 11 Bates ». "Warner . . .113 Bell V. The Great Northern Hallway of Ireland Co 29 Blake v. The Midland EaUway Co 82, 144 Blakeway v. Patteshall 121 Blyth V. The Birmingham Waterworks Company 93 Bortick v. Head & Co 67, 178 Boulter v. Webster 82 Bound V. Lawrence 26, 165 Bradhurn v. The Great Western EaUway Co. 85 Brannigan 1). Rohinson 37,41, 167 Britton v. The Great Western Cotton Co 40, 71 Bromley v. The Cavendish Spinning Co. 167 Brown v. The Butterly Coal Co 22, 165 Browne's Will, In re 147 Buhner v. Buhner 87 Bunker v. The Midland Eailway Co 56, 174 Carter v, Drysdale 66 CasweU v. Worth 71, 96 Chapman v. The Nitro-Phosphate Co 71 Church V. Applehy 105 Clarkson v. Musgrave 65, 120, 180 Claxton V. Mowlem . • . 43, 60, 172 Conroy u. Peacock 64, 114, 181 Conway v. The Belfast & North. Counties Railway Co 12, 92 Cook V. Gordon 121 TABLE OF CASES. Cook V. The North Metropolitan Tramways Co. Cowler V. The Moresby Coal Co. . Cox V. The Great "Western Railway Co. Cripps V. Judge Crocker v. Banks . ... PAGE 25, 26, 164 . 24, 165 . 60, 176 . 30, 168 . 18, 95 Dalton V. The South Eastern EaUway Co. . Davey v. The London & South Western Eailway Co. Dawson v. Heam ....... Debont v. The General Steam Navigation Co. Degg V. The Midland Railway Co. Dickinson v. The North Eastern Eailway Co. Dinger v. Mathews Donovan v. The Laing, Wharton, &o., Syndicate, Ltd. Doughty V. Firhank Duckworth v. Johnson . Dunn V. Butler . . ... . 82, 83 . 96, 99 .147 . 32 . 15 . 79 . 119 13, 22, 158 . 61, 177 82, 83,' 84 .110 Farwell v. The Boston & Worcester Eailway Co 19 Eranklin v. The South Eastern Eailway Co 83, 84 Gautret v. Egerton 3 " George & Eichard," The 79 Gibbs 1). The Great Western Eailway Co. . . . . 61, 176 Giles V. The Thames Ironworks Co . . 166 Gaiett 4). Fairbank ' . . . . 5, 63, 78, 127 Gordon v. Jennings Grainger v. Aynesley Grand Trunk Railway v. Jennings Griffiths V. Dudley (Earl of) . Grizzle v. Frost . 21, 128 . 25, 164 . 85 20, 24, 81 . 18 Haigh V. The Eoyal Mail Steam Packet Co 80 Heam v. Phillips . 64 Heaven r. Pender ... ........ 154 Heasman v. Waygood & Co., Ltd 68 Hedley v. Pinkney & Sons' Steamship Co. 12, 92 Heske i). Samuelson . . . . ... 30, 167 Hetherington v. The North Eastern Eailway Co 84 Holmes v. Clarke 40 71 How V. The London & North Western Eailway Co 119 Howard v. Bennett . . 48 49 173 Howe V. Finch 37, 41, 169 Hunt V. The Great Northern Eailway Co 26 164 TABLE OF CASES. vii FAOB Indermaur v. Dames 3 Jackson v. Hill & Co 26 Johnson v. Lindsay 3, 6, 10, 16, 168 Jones V. Burford 30, 41, 170 Kay V. Briggs 122 Keen v. The MillwaU Docks Co 64, 66, 180 Kellard v. Eooke 43, 48, 62, 63, 171 Kelly 4). The Globe Sugar Refining Co 71 Kirk V. Todd ... . . . 6, 78, 127 Leech v, Gartside 25, 164 Lynch v. Nurdin 95 Marley v. Oshome . 57, 174 Martin v. Connah's Quay Alkali Co . . 96 McCord V. Cammell & Co . .60, 177 McGiffen v. Palmer's Shipbuilding Co 30, 35, 36, 168 McGhrah v. Cartwright 121 Metropolitan EaUway Co. v. Wright 119 Miller v. Hancock 156 Millward v. The Midland Railway Co 48, 51, 64, 85, 174 Moore v. Gimson 33, 169 Morgan v. The London General Omnibus Co. . . .26, 26, 164 Morgan v. Hutchins 30, 36, 39, 74, 167 Mowbray v. Merryweather 165 Moyle V. Jenkins - 64, 140, 180 Munday «. The Thames Ironworks Co 113 Murphy v. Smith 18 Murphy v. Wilson 61, 176 Murtagh v. Barry 119 Nicoll V. Greaves .... 25, 164 Noel V. The Redruth Foundry Co 67, 178 Nowlan v. Ablett . . 25, 164 Osborne v. Jackson & Todd 46, 171 Osborne v. Gillett .' .' . .' 5) 78 TABLE OP OASES. Paley v. Gamett . Pearce v. Lansdowne Pearson v. The Belgian Mills Co. . Pegram v. Dixon .... " Petrel," The Pierpoint v. Cartwright . Phillips V. Homfray .... Pole V. Bright Potter V, Faulkner . . . . Potter ». The Great Western Colliery Co. Priestley v. Fowler .... Previdi v. Gatti . ... Pugh V. The London, Brighton & South Coast Railway Co. Pym v. The Great Northern EaUway Co. PAOE .167 26, 165 . 76 35, 36, 169 . 12 . 120 5,78 .119 . 15 .113 . 5 65, 180 . 28 80, 83, 84, 134 Eay V. WaDis ..... Read v. The Great Eastern Railway Co. Redgrave v. Lloyd .... Reg. V. Judge of the City of Loudon Court Roebuck v. The Norwegian Titanic Forge Co. Rourke v. The White Moss Colliery Co. Rowley v. The London & North Western Railway Co. 44, 47, 171 . 81 . 73 111, 121 .107 . 14 . 86 Salomon f. Salomon & Co. . 124 Scott V. The London & St. Katharine Docks Co 91 Searle v. Lindsay . . .... ... 12 Senior v. Ward . 71, 81, 96 Seward ». The Owners of the " Vera Cruz " 80,134 Shaffers v. The General Steam Navigation Co 43, 44, 171 Smith ». Baker . . . .31,35,39,95,101,103,105,120 Smith V. Johnson . . . . . ... 29 Snowden v. Baynes 53, 55, 173 Stanton v. Scrutton ... .31, 35, 168 Stimpson v. Wood . 84 Stone V. Hyde 65, 180, 181 Stuart V. Evans .... 24, 165 Swainson «). The North Eastern Railway Co. 4,9,91 Sykes v. The North Eastern Railway Co 83 Tarrant v. Webh 9 Tate V. Latham & Co 34 36 167 Thomas v. Quartermaine 62, 90, 95, 96, 102, 105 Thrussell v. Handyside I55 TABLE OF CASES. Vaughan v. The TafE Vale Railway Co. Victorian Eailway CommiBsioners v. Coviltas 27, 29 23, 48, WakeUn v. The London & South Western Eailway Co. . . . .97 Walsh V. Whiteley 30, 31, 32, 35, 39, 74, 170 30, 96, 168 59, 60, 175 . 10 49, 56, 61, 172 . 29 . 36, 169 3, 6, 17, 94 .167 . 10 . 16 . 51, 53 Weblin i>. BaUard . Whatley v. HoUoway Wiggett V. Fox Wild V. Waygood . Wilkinson v. Downton WiUets V. Watt & Co. Wilson V. Merry . Wood V. Dorrall Woodhead ». The Gartness Mineral Co. Wright V. The London & North Western Eailway Co. Wright V. WaUis Yarmouth ». Prance 25,40,95,101,164,168 Younghushand v. Gisbome 147 LIST OF ABBREVIATIONS. R.S.C. CCA. CC.E. E.L.A. W.CA L.J. L.T. J.P. W.R. E. T.L.E. Rules of the Supreme Court. County Courts Act, 1888. County Court Rules, 1889. Employers' Liability Act, 1880. Workmen's Compensation Act, 1897. " Law Journal " Reports. " Law Times " Reports. " Justice of the Peace " Reports. " Weekly Reporter." The Reports. " Times" Law Reports. INTEODUCTION. TJ^OE many years previous to the passing of the Workmen's Compensation Act, 1897, it had been felt that the principle of the common law, which practically cast the burden of bearing the loss caused by personal injury to a workman sustained by him in his employment, entirely upon the injured person, was inequitable ; and although the severity of the common law had been considerably modified by the Employers' Liability Act, 1880, and by the Factory and Workshop Acts, yet there re- mained a large class of injuries caused either by the negligence of a feUow-workman in the same grade as the injured person, or by accident apart from negligence, in which the workman was unable to recover any compensation from his employer, and was thus compelled to bear the whole of the loss and damage caused by his injury or disablement. The Workmen's Compensation Act, 1897, is an attempt to modify this state of affairs, and to divide the loss in such cases between the workman and his employer. The measure is, however, of a tentative nature, and applies only to a limited number of employments ; it also, in aU cases in which the injury is caused by the personal negligence or wilful act of the employer, or of some person for whose act or default the employer is responsible, leaves open to the workman the remedies at law which he possessed before the 1st of July, 1898, when that statute comes into operation. It is difficult to see how any negligence on the part of an individual, and yet of an impersonal character, can exist. If a man is negligent, it would appear that he is guilty of negligence xii INTRODUCTION. personal to himself, and therefore it may be taken that the law existing before the coming into force of that statute is left unaffected. Under the Act, however, the workman is given the right to proceed either under the law existing before the coming into operation of the Act, or, at his option, to take advantage of the provisions of the statute. In considering the advantages or disadvantages of either course of action, the workman and his advisers will have to take into account the amount of the compensation which is given by the statute ; and it will be found, on referring to the First Schedule, that the compensation is of a very meagre description in any case in which the workman is not actually killed. In the first place, if total or partial disablement from work results from the accident, the employer is not liable to compensate the workman at all, unless the latter is disabled from earning his full wages for two weeks, and it is only after the expiration of the fortnight that the payment of compen- sation is to begin. Such compensation is limited to a weekly sum, not exceeding half of the workman's average weekly earnings during the twelve months prior to the accident, and in any case not more than £1 a week. Supposing, therefore, that a workman, earning say twenty-six shillings a week, breaks his leg and is laid up for eight months in consequence, he will be entitled to a sum not exceeding thirteen shillings a week for the eight months, less the first fortnight. If the total amount is calculated, it will be found to amount to the sum of £19 10s., and this is the maximum. But, on the other hand, if the workman succeeds in an action at common law or under the Employers' Liability Act, 1880, it is most improbable that he would get less than £50, he would probably get from £80 to £120, and perhaps £150 or more. It will therefore be seen that, if he can show a case INTRODUCTION. xiii of negligence, either at common law or under the Employers' Liability Act, 1880, he is extremely unlikely to avail himself of the provisions of the Workmen's Compensation Act, 1897. He, moreover, risks but little by proceeding independently of the Act, as it is therein provided that if he fails in the action, yet the judge of the court in which the action has been tried must, at the option of the workman, assess the compensation due to him under the Workmen's Compensation Act, and give him a certificate therefor. This certificate has the same force and effect as an award made under the Act. It is true that the judge has the power to deduct the costs caused by the plaintiff bringing the action, instead of proceeding under the Compensation Act ; but it is very doubtful whether this provision will really have any but a very small effect. It is doubtful whether many judges will avail themselves of the power, and in most cases the extra costs cannot be very great. There does not appear to be any absolute provision prohibiting the plaintiff, after failing in his action, from proceeding under the Act, although this is probably contrary to the intention of the Legislature (a) ; and if this course can be pursued, there does not appear to be any power on the part of the arbitrator to take any debt due to the employer from the workman into consideration when assessing the compensation. For these reasons, the writer has great doubt whether the Workmen's Compensation Act will have any effect in reducing the number of actions brought under the present law by workmen who have been injured in their employers' service. In his experience, large engineering and building firms or the companies in which they and smaller firms insure themselves against such accidents, are even now almost always willing to pay far larger sums than those prescribed by the Act, partly {a) Post p. 133, xiv INTRODUCTION. out of a feeling of compassion towards the injured man, and partly to avoid the trouble and expense of litigation. The writer has in his mind a case, where the plaintiff in an action under the Employers' Liability Act, 1880, who had little or no case against the defendant, was offered and refused nearly five times the amount which in such case could have been awarded under the Workmen's Compensation Act, 1897. In oases where death ensues, the scale of compensation under the Act does not differ widely from that given by the Employers' Liability Act, 1880. In cases, however, where the deceased workman leaves dependants, who were wholly dependent upon his earnings, the latter are entitled to a sum equal to his earnings for the three years previous to the accident, or not less than £150, whichever is the larger ; but in any case not exceeding the sum of £300. This provision will be of assistance in those cases in which the workman's wages would amount to less than the £150 when continued during three years. Where, however, the workman is earning more, and has a case of negligence under the Employers' Liability Act, 1880, in which the maximum is three years' wages of a workman in a similar position to the plaintiff, or under Lord Campbell's Act, where there is no limit, it may be to the advantage of those entitled on his death to proceed independently of the Workmen's Compensation Act. In the case of those partially dependent upon the deceased, the compensation is to be assessed on the basis that it is to be proportionate to the injury sustained, but not exceeding £300, or the amount of three years' wages, whichever is the smaller. All these amounts are to be assessed by a committee or arbitrator under the Act, and it may well be, that the plaintiffs or their advisers may consider that a jury would be to them a more satisfactory tribunal. Another great INTRODUCTION. xv disadvantage to a dependant is that the committee or arbitrator may probahly invest the money for the benefit of the claimant, whereas under the present law a plaintiff of full age gets the compensation in cash. It has therefore been considered necessary, in order to deal comprehensively with the subject of the liability of an employer for accidents to his workmen, to treat in this volume of — (1) The master's liability at common law. (2) His liability under the Employers' Liability Act, 1880. (3) His liability under the Workshop and Factory Acts, etc. (4) His liability under Lord Campbell's Act and the statute amending the same. (5) His liability under the Workmen's Compensation Act, 1897. It is the writer's opinion that even after the Workmen's Compensation Act has come into operation, the liability of the employer under the Employers' Liability Act, 1880, will be one of the most important branches of the law relating to the liability of a master for his servant's injuries. The provisions of the latter statute are complicated, and involve the con- sideration of many difficult questions of law, while the oases decided upon them are numerous and by no means consistent. These decisions are by no means all to be found in the Law Reports, but are scattered over several series of other Reports which a practitioner may wish to see, but which are not always available. The writer has endeavoured to meet this want by coUeoting in AppendiK A. to this volume, all the cases in all the Reports which he considers of any value as containing decisions on points of law arising under that Act, or as to the status under the Act of persons whose occupation is well defined. xvi INTBODUCTION. He hopes that these decisions will assist the practitioner who wishes to lay his hand with the least trouble and delay on the case which he needs, and will also be of great use to the advocate who is so situated that he cannot easUy obtain access to the large number of Reports in which these decisions are to be found. In each case the material facts upon which the decision rests are set out in the Appendix, while in those cases in which explanation or comment is considered necessary, references are given in each case to the text of this volume where such explanation or comment is to be found. The writer hopes that this volume will attain the desired object. It is probable that rules of court under the Workmen's Compensation Act will be published, for, although the pro- cedure to be followed in prosecuting or resisting a claim under that Act is, to a certain extent, provided by the statute itself ; yet power has been given by the Act to the Rule Committee of the judges of County Courts, to make rules of court for the purpose of carrying the Act into effect. It is doubtful, however, when they will be published. It has therefore been decided not to delay the publication of this book until these rules are issued, but to embody in a Supplement a compendium of the procedure which will be con- tained therein. This Supplement wiU contain full directions as to the manner in which a claim under the Act may be pro- secuted or resisted and also the text of the rules and the forms of notices and other documents forming part of the proceedings. It will be published as soon as possible after the issue of the rules. It has not been considered desirable to discuss in this volume this branch of the law as it exists in Scotland or Ireland, as it is conceived that it can and wiU be better treated by those who have a practical experience of the tribunals of those countries. W. E. H. 3, Papeb Buildings, Temple, February, 1898. THE LAW AND PRACTICE EELATING TO WORKMEN'S COMPENSATION AND EMPLOYEES' LIABILITY. CHAPTEE I. THE LIABILITY OP THE EMPLOYER AT COMMON LAW. It has already been mentioned in the Introduction that it is provided by the Workmen's Compensation Act, 1897, that when an accident, by reason of which a workman is injured, is 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 rights which such workman possessed before the coming into operation of that statute, are not affected. In such case the workman had a remedy, or rather a right of action against his employer at common law, for the personal negligence of the latter; while under the Employers' Liability Act, 1880, he could sue his employer to recover damages for the injuries he had sustained, by reason of the negligence of any of the persons for whose negligence the employer was made answerable by the first and second sections of that Act. In treating, therefore, of the liability of a master for the injuries sustained by a workman in his service, caused by negligence, it is necessary, in the first place, to consider the extent of his liability at common law. At common law the liability of a master for damage caused by injuries, sustained 1 2 WORKMEN'S COMPENSATION AND by his servants in the course of their employment, was based upon the doctrine, that when one person is guilty of negligence towards another which is the cause of injury to the latter, the person guilty must compensate the person injured for the damage which he has sustained ; providing that such damage is the direct result of the former's negligence. It will be seen, therefore, that to enable a plaintiff to make a successful claim against a defendant for compensation for damage sustained by reason of the latter's negligence, it was necessary for him to prove : — 1. Negligence on the part of the defendant. 2. That such negligence was, legally speaking, the direct cause of the injury to the plaintiff. It therefore becomes necessary, in the first place, to enquire what constitutes negligence on the part of a master towards his servants ? Now, negligence is a state of affairs in which the person who has been negligent has been guilty of a breach of duty towards the person injured, and therefore it is, in the first place, necessary for a plaintiff to prove that the defendant owed some duty to him ; and, secondly, that there has been a breach of such duty on the part of the defendant. This duty of one man towards another is, by no means, a fixed quantity, nor is one man always bound to exercise the same degree of care towards another. The obligation of the one to show a certain degree of care towards the other, depends entirely upon the relationship that exists between them ; thus if a man enters upon the private property of another with the leave and license of the owner, he must take the permission given him in the character of a gift, and the owner is not responsible for damage arising from the insecurity of such premises unless he knew of their evil character at the time, and omitted to caution the donee. There must be something like fraud on the part of the giver, before he can be made answerable. To bring the case within the category of actionable negligence, some wrongful act must be shown or a breach of EMPLOYERS' LIABILITY. 3 some positive duty : otherwise a man who allowed strangers to roam oyer his property, would be held answerable for" not protecting them against any danger which they might encounter while availing themselves of the licence (a). On the other hand, if the owner invites a stranger on to his premises for some business purpose in which he is interested, either solely or jointly, with the person invited ; it becomes his duty towards such person, to see that his premises are in a reasonably safe condition. A person so invited and using reasonable care on his part for his own safety, is entitled to expect that the occupier shall, on his part, use reasonable care to prevent damage from unusual danger, of which he knows or ought to know. In other words, a reciprocal duty arises from the relationship between the two men, that each shall use reasonable care towards one another, and a breach of such duty on the part of either of them would be negligence (b). So, therefore, with regard to the liability of the master towards his servant, it is, in the first place, necessary to enquire what is the nature of the contract between them in order to ascertain what duty each one owes to the other ; for it is clear that the only duty which can exist between them as master and servant must depend upon the nature of the contract, express or implied, which has been arrived at between them (c). At common law the contract, in default of express stipulation, was as follows : — 1. The servant contracted that he was reasonably competent to do the work he had engaged to do, would use reasonable care in doing it, and would obey the reasonable orders of his employer and of those superior to himself in his employer's service, but he did not stipulate for a right of action against his employer if he sustained damage from the negligence of a person in the same service and employment ; or, to (a) Gautret v. ISgerton, L.R. 2 C.P. 371 ; 36 L.J.C.P. 191 ; 16 L.T. 17. (i) Indermaur v. Dames, L.E. 1 O.P. 274 ; 2 C.P. 311. (c) Wilson V. Merry, L.E. I H.L. Sc. 326; Johnson \. Lindsay ^ Co., 1891, A.O. 371; 61 L.J.Q.B. 90. 1a t WORKMEN'S COMPENSATION AND put it in other words, he agreed to accept the ordina,ry risks of the employment, including the risk of sustain- ing damage by reason of the negligence of another person, in the same service and emplojrment (a). 2. The master, on the other hand, in addition to agreeing to pay the stipulated wages, contracted that he would either superintend the work himself or would appoint a proper numher of reasonably competent men to do so; and also that all the tools and machinery he supplied were, so far as he could reasonably know, fit and proper for the work for which they were intended ; he did not, however, contract that he would personally superintend the work, or would personally examine the tools, or machinery supplied, but that if he did not, he would employ reasonably competent persons to make such an examination as was reasonably necessary. In no case did the master contract that such persons or any other of his servants whose work or negligence would in the ordinary conditions of the employment affect the servant, should never be guilty of negligence or that the tools or machinery should be absolutely perfect. It followed, therefore, that before a servant could substantiate a claim for damages against his master, it was necessary for htm to prove that the latter had been guilty of some personal negligence, and it was not enough for him merely to prove the existence of a state of affairs which was, or might have been, the result of acts of negligence on the part of one or more of the servants engaged in the same employment, and serving the same master as himseK (b). It wiU also be seen that this right of action is a personal right of action against the master, and consequently comes within the principle of the common law, that a personal action died with the person {Actio personalis (ff) Swainson v. The North Eastern Sailway Co., 3 Ex. D. 341 ; 47 L.J. Ex. 372 ; 38 L.T. 201. (J) Allen T. New Gaa Co., 1 Ex. D. 2S1 ; 46 L.J. Ex. 668 ; 34 L.T. 541. EMPLOYEES' LIABILITY. 5 moritur cum persond) ; therefore if the person who had suffered damage died hefore he had obtained judgment his action also became dead, and no other person could maintain an action for the wrong committed against the deceased. This is still the law (a) but by two statutes, viz. : Lord Campbell's Act and the statute amending it, a right of action has been given to certain of the relatives of the deceased to recover compensation for the pecuniary loss they have sustained by reason of the death of the deceased, if it occurred from injuries sustained by him under circumstances, which, if he had lived, would have given him a right to recover compensation for his injuries. This right is fvdly discussed in Chapter IV. (6). These statutes, however, do not alter the common law rule with regard to a defendant, and, consequently, if the latter dies before the plaintiff has recovered judgment against him, the action dies also, and the plaintiff is left without a remedy (c). The first reported instance in which a servant sued his master for damages for injury sustained by him by reason of the negligence of a fellow-servant was the case of Priestley v. Fowler (d), which was decided in the year 1837. In that case, judgment was given for the defendant upon the ground that the master was not responsible for the negligence of the plaintiff's fellow-servant. It is not, however, necessary at the present time to examine the reasoning upon which the judgment in this, or in the other numerous and similar cases which have since been decided, was founded, as the nature of the contract of employment, so far as it affects the question of the master's liability for injuries sustained by his servant in the course of his employment, has been exhaustively treated by the House of Lords in three recent cases (e). (a) Osborne v. Gillett, L.E. 8 Ex. 88 ; 42 L.J. Ex. 63. (b) Foit p. 78. (e) Kirk v. Todd, 21 Ch. D. 484 ; Phillips v. Homfray, 24 Ch. D. 439 ; Gillett V. Fairbmlc, 3 T.L.E. 618. ((?) 3 M. & W. 1. («) The Bartonshill Colliery Co. v. Reid, 3 McQ. H.L. Ca. 266 ; Wilson v. Merry, L.E. 1 H.L. So. 326 ; Johnson v. Lindsay, 1891, A.C. 371 ; 61 L. J.Q.B. 90. 6 WORKMEN'S COMPENSATION AND In the case of The Bartmshill Colliery Co. v. Beid, Lord Oranworth, then Lord Chancellor, in giving judgment, carefully examines the doctrine of the liability of an employer for negligence, with regard both to the general public and also to his servants. He says : — " Where an injury is occasioned to anyone by the negligence of another, if the person injured seeks to charge with its conse- quences any person other than him who actually caused the damage, it lies on the person injured to show that the circum- stances were such as to make some other person responsible. In general, it is sufficient for this purpose to show that the person whose neglect caused the injury was at the time when it was occasioned acting not on his own account, but in the course of his employment as a servant in the business of a master and that the damage resulted from the servant so employed not having conducted his master's business with due care. In such a case the maxim ' respondeat superior ' prevails, and the master is responsible. Thus, if a servant driving his master's carriage along the highway carelessly runs over a bystander, or if a gamekeeper employed to kill game, carelessly fires at a hare so as to shoot a person passing on the ground, or if a workman employed by a builder in building a house negligently throws a stone or brick from a scaffold, and so hurts a passer-by ; in all these cases (and instances might be multiplied indefinitely) the person injured has a right to treat the wrongful or careless act as the act of the master. Quifacit per alium facit per se. If the master himself had driven his carriage improperly, or had fired carelessly, or negligently thrown the stone or brick, he would have been directly responsible, and the law does not permit him to escape liability because the act complained of was not done with his own hand. He is considered as bound to guarantee third persons against all hurt arising from the carelessness of himself, or of those acting under his orders in the course of his business. Third persons cannot, or, at all events, may not, know whether the particular injury complained of was the act of the master or the act of his servant. A person sustaining injury in any of the EMPLOYERS' LIABILITY. 7 modes I have suggested, has a right to say : ' I was no party to your carriage having been driven along the road, to your shooting near the public highway, or to your being engaged in building a house. If you choose to do, or cause to be done, any of these acts, it is to you, and not to your servants, I must look for redress, if mischief happens to me as their consequence.' A large portion of the ordinary acts of life are attended with some risks to third persons, and no one has a right to involve others in risks without their consent. This consideration alone is sufficient to justify the wisdom of the rule which makes the person by whom, or by whose orders, these risks are incurred responsible to third persons for any ill consequences resulting from want of due skill or caution. " But do the same principles apply to the case of a workman injured by the want of care of a fellow-workman engaged together in the same work ? I think not. When the workman contracts to do work of any particular sort, he knows, or ought to know, to what risks he is exposing himself ; he knows, if suoh be the nature of the risk, that want of care on the part of a fellow-workman may be injurious or fatal to him, and that against such want of care his employer cannot by any possibility protect him. If such want of care should occur, and evil is the result, he cannot say that he does not know whether the master or the servant was to blame. He knows that the blame was whoUy that of the servant. He cannot say that the master need not have engaged in the work at all, for he was a party to its being undertaken. Principle, therefore, seems to me opposed to the doctrine that the responsibility of a master for the ill consequences of his servant's carelessness is applicable to the demand made by a fellow-workman in respect of evil resulting from the carelessness of a fellow-workman when engaged in a common work." In the later case of Wilson v. Merry, which was decided in the year 1868, Lord Oairns, then Lord Chancellor, made a still more exhaustive statement of the law with regard to the mutual rights of master and servant, and extended the application of the doctrine of common employment to persons who were not. 8 WOEKMEN'S COMPENSATION AND in ordinary parlance, the fellow-workmen of the injured person, hut were in a much superior position in the service of the master. After quoting the passage from Lord Cranworth's judgment, which is given in externa above. Lord Cairns thus proceeds : — " My Lords, I would only add to this statement of the law, that I do not think that the liability, or non-liability, of the master to his workmen can depend upon the question whether the author of the accident is not or is, in any technical sense, the fellow-workman or coUahorateur of the sufferer. In the majority of cases in which accidents have occurred the negligence has, no doubt, been the negligence of a fellow- workman ; but the case of the fellow-workman appears to me to be an example of the rule, and not the rule itself. The rule, as I think, must stand upon higher and broader grounds. The master is not, and cannot be, liable to his servant unless there be negligence on the part of the master in that which he (the master) has contracted or undertaken with his servant to do. The master has not contracted or undertaken to execute in person the work connected with his business. 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 incom- petent personally to conduct the work. At all events, a servant may choose for himself between serving a master who does, and a master who does not, attend in person to his business. But what the master is, in my opinion, bound to his servant to do, in the event of his not personally superintending or directing the work, is to select proper and competent persons to do so, and to furnish them with adequate materials and resources for the work. When he has done this, he has, in my opinion, done all that he is bound to do. And if the persons so selected are guilty of negligence, this is not the negligence of the master ; and if an accident occurs to a workman to-day in consequence of the negligence of another workman, skilful and competent, in the employment of the master, the latter is, in my opinion, not liable, although the two workmen cannot technically be EMPLOYERS' LIABILITY. 9 descrilDed as fellow-workmen. "As was said in the case of Tarrant v. Webh (a) negligence cannot exist if the master does his best to employ competent persons ; he cannot warrant the competency of his servants." As, therefore, the doctrine of common employment is founded upon the contract entered into between master and servant, it necessarily follows that there must be in existence a contractual relationship of service between the plaintiff and the defendant, if the defence is to be successfully maintained. It will, therefore, not be sufficient for the defendant to allege only that the plaintiff and the person by whose negligence he was injured were engaged in a common work. It is also necessary that they should be in the service of a common master. This is clearly shown in the case of Swainson v. The North Eastern Railway Co.{b), in which the plaintiff was the widow of one Thomas Swainson, a signalman in the employment of the Great Northern Railway Company, whose duty it was to assist in working the trains belonging to both companies at a station at Leeds, which was owned and worked jointly by the two companies. Whilst so engaged he was fatally injured by the negligence of an engine-driver in the service of the North Eastern Eailway Company. The defendants set up the defence of common employment, but the case was decided against them upon the ground, that, as there was no contractual relationship of master and servant between the deceased man and the defendants, such a defence was not maintainable. In giving judgment Lord Justice BramweU expressed himself as follows: — "We must consider what obligations a servant takes upon himself; it is sometimes said that he contracts to take upon himself the risks of his service ; but the proposition may also, be stated as follows, namely, that he has not stipulated for a right of action against his master if he sustains damage from the negligence of a fellow-servant. The two forms of the proposition seem to me to be substantially the same ; in either («) 26 L.J. (N.S.) O.P. 263. (S) 3 Ex. D. 341 ; 47 L.J. Ex. 372 ; 38 L.T. 201. 10 WOEKMEN'S COMPENSATION AND case it is necessary to prove that a relation has been estahlished between the person who complains and the master of the person who does the injury." Attempts have, however, been made to extend this defence to cases where both the injured and the negligent persons were engaged in a common work, although not in the service of the same master (a), but such a case has recently been discussed in the House of Lords (6), and their Lordships' judgment definitely decides that, in order to maintain the defence of common employment, the injured and the negligent persons must both, not only be engaged in the same employment, but must be the servants of the same master. In that case the plaintiff Johnson was employed by a firm of the name of Higgs and Hill, who were the contractors for the building of a block of workmen's dwellings; a part of the contemplated work consisted of fireproof flats and floors to be completed on the Lindsay system, and it was arranged that the defendants, Lindsay and Co., should carry out this work free from any interference from Higgs and Hill, and that a lump sum, severed from the total sum payable to Higgs and Hill under their contract, should be paid direct to Lindsay and Co. in respect of the work they did. The plaintiff, who was employed on the portion of the work entrusted to Higgs and Hill, was injured by the negligence of one of the servants of Lindsay and Co., and brought his action against that firm. The House of Lords entered judgment for the plaintiff, on the ground that the defence of common employment could not be maintained, as there was no common master. Lord Herschell, in giving his judgment, reviews several other cases, in which the opinions which he himself expresses are put forward, and then sums up the law on the subject in the following words (c) : — " These authorities are sufficient to establish the proposition that, unless the person sought to be rendered liable for . the (a) Wiggett v. Fox, 11 Ex. 832 ; Woodhead v. Qartness Mineral Co., i So. Sess. Cas. 4th series 469. (J) Johnson v. Lindsay ^ Co., 1891, A.C. 371 ; 61 L.J.Q.B. 90. (c) 1891, A.C, at p. 377. EMPLOYERS' LIABILITY. 11 negligence of his servant, can show that the person so seeking to make him liahle was himself in his service, the defence of common employment is not open to him. Such service need not, of course, be permanent or for any defined term. The general servant of A may, for a time, as on a particular occasion, be the servant of B, and a person who is not under any paid contract of service, may, nevertheless, have put himself under the control of an employer to act in the capacity of servant, so as to be regarded as such. This, as has been pointed out, is the position of a volunteer. But it is obvious that if the exemption results, as it does according to the authorities I have cited, from the injured person having under- taken, as between himself and the person he sues, to bear the risks of his fellow servants' negligence, it can never be applicable, where there is no relation between the parties from which such an undertaking can be implied. There are other considerations which point in the same direction. It must be remembered that whilst a servant contracts with his master to bear the risks of the negligence of his feUow-servants, there is, as has been more than once laid down, a corresponding duty on the part of the employer to take due care to select competent servants. And it would be most unreasonable to hold that he is exempt from liability for his servants' negligence, in any case where he is not under this obligation. But I do not see how such an obligation can arise otherwise than from some contractual relation. The obligation and the exemption appear to me to be implied from the relation of master and servant created between the parties." In accordance with the principles laid down in the foregoing cases, the doctrine of common employment has been held to apply as between persons of very different rank serving under the same master. Thus, to give a few instances of the extent to which the doctrine has been carried, it has been held to apply to the relationship between a miner and the engineer of his employers the mining company (a), a milesman and a (a) The Bartonahill Coal Co. v. Seid, 3 McQ. H.L. Ca. 266. 12 WORKMEN'S COMPENSATION AND general traffic manager employed on the same railway (a), a seaman and the chief engineer (6) and even the captain (c) serving the same owner on board the same ship. It is, however, impossible to lay down any general rule as to whether the doctrine applies or not, as every case must depend upon the particular facts proved, but it is clear from the above cases that difference in rank and authority does not affect the application of the doctrine ; it is, nevertheless, conceivable that it is possible for an employer, to put forward his manager in such a way that a contract may be implied on the part of the master, to be responsible for the manager's negligence; but in all ordinary cases the presumption in law that the servant has no right of action against his master for damage sustained by reason of the negligence of anyone, in the same common service and employment, appKes. At the same time, from the foregoing considerations, it follows that the negligence causing the damage, must be that of such persons in the service of the employer who, at the making of the contract, may reasonably be considered by the servant to be persons whose negligence would or might be the cause of danger to himself in the course of his employment. This is well illustrated by the two following cases {d). In the case of Sedley v. Pinhiey ^ Sons' Steamship Co., the husband of the plaintiff, a man named Hedley, who was a seaman on board the steamship " Prodano," was drowned by reason of the negligent conduct of the captain of that ship. It was held in the House of Lords that the seaman Hedley and the captain were in one common employment serving under a common master, and judgment was given for the defendants. On the other hand, in the case of the " Petrel," two ships by name the " Petrel " and the " Cormorant," both belonging to (o) Conway v. The Self ait $ North Counties Eaihvay Co., 11 Ir.E. O.L. 345. (b) 8earle\. Imdsay, 11 C.B.N.S. 429; 31 L.J.C.P. 106. (c) Sedley v. Finhney # Sons, 1894, A.C. 222 ; 63 L.J.Q.B. 419 ; 70 L.T. 630 ; 42 "W.E. 497. {d) Sedley y. Pinkney # Sons' Steamship Co., supra. The " Petrel " 1893, P. 320 ; 62 L.J.P. 92 ; 70 L.T. 417. EMPLOYERS' LIABILITY. 13 tlie General Steam Navigation Company, with crews both in the employment of Jthe company, came into collision by reason of the negligence of those on hoard the " Petrel," and, in consequence, the "Cormorant" went down. The General Steam Navigation Company paid a sum of money representing their liability into Court. It was held that the master and crew of the " Cormorant " were entitled to claim against such sum of money in respect of their lost effects, for although they were employed by the same shipowner, yet they were not engaged in a common employment, in the sense that the risk of injury or damage from the negligence of the master or crew of the " Petrel," was an ordinary risk of their service on board the " Cormorant." It not infrequently happens that another difficulty arises, owing to the fact that very often it is extremely doubtful whether or not the injured person, and the person whose negligence was the cause of the accident, were in the service of the same master. It is not unusual in business for one firm to hire out or lend a machine such as a crane or steam-roller to another person ; and to supply with the machine the man accustomed to work it. The law is, that if the machine driver is guilty of negKgence whilst thus hired out or lent to another, and when he is under the latter's orders and subject to his control ; such driver is, so far as the working of the machine is concerned, the servant of the person to whom he is hired out or lent ; so that the injured person is unable to recover com- pensation against the firm or person who has so hired out or lent the driver, as there has been no negligence on their or his part, and is equally debarred from recovering compensation from the person under whom the driver is working by the defence of common employment. The position of a driver in such circumstances has been examined lately in the case of Donovan v. Laing, Wharton ^ Down Syndicate, Limited {a) in the Court of Appeal. In that case the defendants were the owners of a crane capable of being (a) 1893, 1 Q.B. 629 ; 63 L.J.Q.B. 25 ; 68 L.T. 512. 14 WORKMEN'S COMPENSATION AND used for loading and unloading ships, and they hired out the crane and a man called Wand, who worked it, to a firm of wharfingers called Jones and Co. Wand worked the crane in conformity with the orders of Jones and Co., and it was his duty to ohey the directions of the plaintiff, who was in the service of Jones and Co., when he signalled to raise or lower the chain attached to the crane for the purpose of loading the ship. Whilst the loading was in progress, Wand negligently swung the crane without waiting for the plaintiff's signal, and, in consequence, the chain struck the plaintiff and injured him. Lord Esher, in giving judgment, after stating the -foregoing facts, proceeds as follows (a) : — " In this case the crane and the man to work it were lent by the defendants to Jones and Co. for a consideration, and to be used in the manner I have described. For some purposes, no doubt, the man was the servant of the defendants. Probably, if he had let the crane get out of order by his neglect, and in consequence anyone was injured thereby, the defendants might be liable ; but the accident in this case did not happen from that cause, but from the manner of working the crane. The man was bound to work the crane according to the orders, and under the entire and absolute control, of Jones and Co. " That being so, whose servant was the man in charge of the crane as to the working of it ? It is true that the defendants selected the man and paid his wages, and these are circum- stances which, if nothing else intervened, would be strong to show that he was the servant of the defendants. So, indeed, he was as to a great many things ; but as to the working of the crane he was no longer their servant, but bound to work under the orders of Jones and Co., and, if they saw the man misconducting himself in working the crane, or disobeying their orders, they would have a right to discharge him from that employment. This conclusion hardly requires authority ; but there is authority for it, without going back to an earlier date, in the case of Bourke v. White Moss Colliery Co." (6). (a) At p. 632. (b) 2 C.P.D. 205 ; 46 L.J.C.P. 283 ; 36 L.T. 49. EMPLOYERS' LIABILITY. 15 It has been enacted by the Workmen's Compensation Act, 1897, that after the date when the Act comes into operation, the workman shall have a right of compensation as limited by the Act against the " Undertakers " as therein defined, where such undertakers would, if they had been the workmen's employers, have been liable {a). This right only extends to the workmen in those emplojonents to which that Act applies, and the subject is more fully treated of in Chapter YII. {b). The position also of a person who voluntarily assists the servants of a master without any interest in so doing, and without any request to do so from the master, is certainly not better than that of a workman, if so good (c), but if, on the other hand, the person who assists the servants of a master, has a common interest in the work to be done, and there is anything from which a request for or authorisation of his assistance can be implied ; then the doctrine of common employment does not apply, and the master is responsible for his servant's negligence. This is well illustrated by the case of Wright v. The London 8f North Western Railway Co., decided in the then existing Court of Appeal. The defendants had carried a heifer for the plaintiff to their Penrith station, and the horse-box in which the heifer had been carried had to be shunted on to a siding in order to get the heifer out. The plaintiff, with the knowledge and assent of the station-master, assisted in the shunting, and whilst so doing was injured by the negligence of the defendants' servants. It was proved that, the station being a small one, there were but few porters there, and that the Company allowed persons having cattle carried by them to assist in the shunting of the trucks. Lord Justice Mellish, in delivering his judg- ment, says : — " It is settled by Degg v. Midland Railway Co. (c) and Potter V. Faulkner (d) that if a man's servant invites a friend as a mere (a) W.C.A., SB. 4, 7 (2). (J) Fast p. 156. (c) Begg V. Midland Hallway Co., 1 H. & N. 773 ; 26 L.J. Ex. 171 ; Johnson t. Lmdsay S[ Co., 1891, A.C. 371 ; per Lord HerscheU, at pp. 377 and 378. (rf) 1 B. & S. 800 ; 31 L.J.Q.B. 30. 16 WORKMEN'S COMPENSATION AND volunteer, for his own amusement, as it were, to take part in a dangerous duty, and he meets with injury in the course of it, the master is not liable. The present case difEers in several essentials. First, the plaintiff was not a mere volunteer, but was assisting to get his own heifer. I do not say that in every case a person wanting to get his goods off the railway could - justify his being on the premises assisting the railway servants ; but there may be cases in which it would be but reasonable that he should interfere and assist them where a mere stranger could not. Here there was a difficulty in getting the horse-box shunted, and the practice at the station was to allow persons to assist in getting their cattle trucks shunted ; and in the present case the station-master was standing by and made no objection to the plaintiff's assisting. It is obvious that if a company allow persons to take this part in doing what they ought to do — in order to save porters — they must take upon themselves the consequences if the persons are injured by the negligence of the Company's servants " («). The principle of these cases seems to be that when a man assists in the work of another in such circumstances that it ought to be inferred that he assists the servant in the capacity of a servant, although he may not actually have agreed to serve the master ; yet, as he has voluntarily put himself in that position, he cannot contend that it is the master's duty to exercise towards him a greater degree of care than that which the master is bound to show towards the others with whom he has voluntarily associated himself. On the other hand, if the circumstances are such as to justify the inference, that the plaintiff assisted in the work in his own right ; then he is not a servant nor in the position of one, and he has a right to enjoy the same degree of care which the master is bound to show to a stranger under like circumstances. It follows necessarily, from the foregoing considerations, that a master cannot set up the defence of common employment in an action brought against him to recover damages for an injury (a) 1 Q-B.D. 262, at p. 266. EMPLOYERS' LIABILITY. 17 sustained through his personal negligence ; even when he has been guilty of such negligence while engaged on the same piece of work as his servants and working with them {a), and if a partner in a firm is so negligent the firm is liable (b). It is still undecided to what extent the doctrine of common employment is a defence with regard to actions brought by young children. It is said, and with truth, that young children cannot, in fact, understand the nature of the risks of the employment in which they engage, and that, therefore, there is no contract upon their part to take the risks of their work upon themselves. It is, therefore, suggested that the employer is liable, if an accident happens to them by reason of the negligence of a fellow-workman. On the other hand it is alleged that the presumption in law that a workman takes such risks upon himself cannot be rebutted, as, if evidence on the subject could be given, in almost every case the workman could prove that he was perfectly unconscious that he had entered into such a contract. The youth of a child is merely an incident, and is only evidence to show that the child does not understand the risks, and does not contract to take them upon himself. If the ordinary presumption could be rebutted, any workman who was of more than ordinary stupidity, or a bad lawyer, would be able to evade the application of the doctrine. If the doctrine that the defence of common employment is to be supported on the theory, not that the servant takes the risks of the employment upon himself, but upon the supposition that the master does not contract to superintend the work himself, but only to supply competent superintendents (c), it is difficult to see how, if his superintendent is negligent, he can be made liable, as there is no breach of contract on his part. The question is still open, as there has been no ease on the subject since the action of Wilson v. Merry (c) was decided. (a) AshwoHh v. Stanwix, 30 L.J.Q.B. 183 ; 3 El. & El. 701 ; 4 L.T. 86. (*) 53 & 54 Vict., 0. 39, s. 10. (c) Wilson V. Merry, ante pp. 6, 7. 18 WORKMEN'S COMPENSATION AND There are certainly dicta in cases decided before the case of Wilson V. Merry, which point to the liability of the master (a) ; but they are founded on the doctrine exploded by the case of Wilson V. Merry, that a manager or foreman in the service of the defendant, is his alter ego, and that the negligence of such manager or foreman is the negligence of the master. It is clear law that what would be negligence in an adult is not necessarily negligence in a child {b) ; but this appears to the writer not to affect the question of the contract between the master and the child. It is probable also that the duty of a superiatendent over a child is greater towards the child than it would be towards an adult, but this would only affect the duty of the superintendent and make greater care on his part necessary. If the presumption of law that the servant takes the risks of the employment cannot be rebutted, or if the employer does not contract to personally superintend the work of every child, it is difficult to see how the child can recover, at common law, against the master, for injuries sustained through the negligence of a superintendent ; unless there is some duty independent of contract thrown upon the master by the mere fact of his employing the child. Certain duties relating to children are imposed upon certain employers by the Factory and Workshop Acts and certain other statutes. The effect of these is discussed in Chapter III. (c). (a) Grizzle V. Frost, 3 F. & F. 662, at p. 665; Mmphy v. Smith, 19 C.B.N.S. 361. (b) Crocker \. Banks, i T.L.E. 324. (c) Fast p. 70. EMPLOYERS' LIABILITY. 19 CHAPTEE II. THE EMPLOYERS'! LIABILITY ACT, 1880, AND ITS EFFECT UPON THE CONTRACT OF EMPLOYMENT. The result which necessarily followed from the decisions which have been examined in the last chapter, was that great hardship was endured by the workmen who were so unfortunate as to he injured at their work hy the negligence of those, for whose actions the master, if no contract of employment had existed, would have been answerable. It seemed, indeed, not unfair that the master should be free from liability for the injuries sustained by a workman in his employ, when such injuries were caused by the negligence of a person in the same grade as the injured man, as the latter was probably the only person who was in a position to discover that the negligent person was not working properly, and could, of course, call the attention of the employer or his foreman to the fact, to the mutual benefit of both employer and employed («). Such considerations, however, did not apply when the doctrine of common employment became so far extended, that it embraced persons who were fellow-servants of the injured person only in the eye of the law, but who were, in fact, in a position infinitely superior to him, and of whom, practically speaking, it was impossible for him to complain without prejudicing or raining his position in his master's employment, and perhaps with other employers of labour. It began to be realised that some modification of the law was desirable. It was in consequence of this feeling that the Employers' Liability Act, 1880, was passed ; and its effect was to throw (a) Farwell v. The Boston and Worcester if. Co., 4 Meto. (Massa.), Keps. 49. 2a 20 WORKMEN'S COMPENSATION AND on the master a modified responsibility for the loss caused to a workman hj personal injuries sustained by reason of the negligence of persons in the employer's service, who were m the position of superintendents or foremen. There are also more particular provisions relating to railway servants. The different cases which have been decided upon the various sections of this Act have been collected and arranged in Ap- pendix A, and the material facts in each case have been set out. It remains, therefore, to give in this chapter an account of the Act, and of the way in which it has modified the contract of employment at common law. The effect of the statute, however, is only to create an implication of law, that in every contract of service in an employment to which the Act applies, the provisions therein contained also apply ; and, therefore, if afterwards an accident occurs which brings the case within the Act, the master is liable. Like most legal presumptions, it can be rebutted by the master if he can show that the workman has agreed not to avail himself of the benefits conferred by the Act, or, in the words of a phrase which has been much in evidence lately, has contracted out of the Act. In such a case, the workman cannot recover against his employer under the provisions of the statute (a). If the provisions of the Employers' Liability Act are ex- amined, it will be found that the subject naturally, and conveniently, divides itself into the following sections, which must all be considered before it can be properly ascertained whether the plaintiff has a right of action under the Act, whether he has adopted the proper procedure for availing himself of that right, and, lastly, in the event of success, what damages he is entitled to. 1. The Status of the Plaintiff. — In other words, does the nature of the plaintiff's employment bring him within the definition of the word "workman" within the meaning of the Act ? {a) Griffiths v. Earl of Dudley, 9 Q.B.D. 367 ; 61 L.J.Q.B. 643 ; 47 L.T. 10 : 30 W.E. 797. EMPLOYEES' LIABILITY. 21 The first section of the Act gives the benefits conferred thereby only to a " workman " ; and, therefore, it is necessary for a plaintiff to prove, in the first place, that he is a workman within the meaning of the Act. The definition of the word " workman " is contained in the eighth section of the Act, where it is defined as meaning a railway servant, and any person to whom the Employers and Workmen Act, 1875, applies. The first diiEculty in this definition arises in the expression " railway servant," for it is, of course, obvious that in a sense all the persons employed by a railway company are railway servants. There has been no decision upon the meaning of these words, but it is apprehended that only that class of railway servant which would generally be considered as of the working class would be included. The expression would pro- bably be construed in conformity with the subject matter and general intention of the Act, and regard would probably be paid to the collocation of the words " railway servant " with the other classes of workmen enumerated in the section («) . It is probable that these words were introduced in order to include in the beneficial operation of the Act those railway servants, such as guards and ticket-collectors, who are not engaged in manual labour, and, therefore, would not come within the Employers and Workmen Act, 1875, but who, nevertheless, belong to the same class of employes. The classes of workmen to whom the Employers and Work- men Act, 1875, applies are enumerated in the tenth section of that Act. By virtue of that section, " the expression ' workman ' does not include a domestic or menial servant, but, save as aforesaid, means any person who, being a labourer, servant in husbandry, journeyman, artificer, handicraftsman, miner, or otherwise en- gaged in manual labour, whether under the age of twenty-one years or above that age, has entered into or works under a contract with an employer, whether the contract be made (a) Gordon v. Jwnings, 9 Q.B.D. 45; 51 L.J.Q.B. 417; 46 L.T. 634; 46 J.P. 519. 22 WORKMEN'S COMPENSATION AND before or after the passing of this Act, be express or implied, oral or in writing, and be a contract of service or a contract personally to execute any work or labour." By the twelfth and thirteenth sections of the above Act, apprentices for whom more than £25 has been paid as a premium, and who have not been bound apprentice under the Acts relating to the relief of the poor, and also seamen and apprentices to the sea service, are excluded from the benefits of the Act. A plaintiff, therefore, in order to prove that he is a workman, must, in the first place, show that he has entered into a contract of service with the person against whom he is proceeding under the provisions of the Employers' Liability Act; and it very often happens that a difficulty arises, owing to its being doubtful who is, in fact, the employer. A workman is often sent with the machine or engine which he is accustomed to drive, to take part in some operation conducted by some person other than the man who actually pays the workman; and the question arises whether the workman is the servant of the man who owns the machine or engine, or whether, at the time of the accident, he is in the service of the person to whom he has been sent or hired out. This difficulty has occurred more frequently in actions at common law, and has been more fully discussed already («) ; but, as a rule, the person who possesses the right to control the workman at the time of the accident, and, a fortiori, to dismiss him if he is incompetent or acts improperly, has generally been considered the employer at the time of the accident {b). The case of Broicn v. The Butter li/ Colliery Company [c), a decision under the Employers' Liability Act, 1880, is a good illustration of this principle. In that case, the defendants were the owners of a mine, which was worked upon the " butty system." Certain persons called " butty men " contracted with the defendants to raise coal out of the mine at a fixed price (a) Ante p. 13. (J) Donovan Y. Laing, TFharton and Down Conttrtiction,ld., 1893, 1 Q.B. 629 63 L.J.Q.B. 25 ; 68 L.T. 612 ; 57 J.P. 583. (c) 53 L.T. 964; 50 J.P. 230 ; 2 T.L.R. 169. EMPLOYERS' LIABILITY. 23 per ton raised. The plaintiff was employed as a miner by one of these hutty men to work in the mine ; and, so far, there was no evidence of any contract of service between the plaintiff and the defendants. It appeared, however, that the defend- ants had drawn up certain rules and regulations which all who worked in the mine were forced to obey ; and, by one of the regulations which is set out in full in the "Times" Law Eeport, it was provided that the fact of the miner commencing to work should be considered as an agreement to observe the rules, equally binding upon him and upon the defendants. As thus it was clear that there existed an agreement between the plaintiff and the defendants, that the latter should have a certain control over the former, it was held that there was evidence from which the County Court Judge could infer that a contract of service existed between the parties. In another case {a), a builder named Horton was engaged in building a house, and the plaintifp was in his employment. Horton had contracted with the defendants for the latter to construct a lift in the house. One Duplea was a joiner in the defendants' employ, and asked Horton's foreman to lend him a workman ; and the plaintiff was lent to Duplea in consequence of his request. There was also evidence that the defendants asked for an account of the plaintiff's work in order that they might pay his wages during the time he was so engaged. It was decided that it might be inferred from the above facts that the plaintiff was a workman employed by the defendants. It has now been enacted by the fourth section of the Work- men's Compensation Act, 1897, that after the date when that Act comes into operation the workman shall have a right of action, as limited by that section, against the " undertakers," as defined by that Act (h), where such undertakers would, if they had been the workman's employers, have been liable under the provisions of the Employers' Liability Act. This right only extends to the workmen engaged in those (a) Wild V. Waygood, 1892, 1 Q.B. 783 ; 61 L. J.Q.B. 391 ; 66 L.T. 309 ; 56 J.P. 389. (b) "Workmen's Compensation Act, 1897, sec. 7 (2). 24 WORKMEN'S COMPENSATION AND employments to wliich the Workmen's Compensation Act, 1897, applies (a) ; and in any case the workman must show that he has a good right of action against his actual employer before he can take advantage of this provision of the Workmen's Compensation Act, 1897, and sue the undertakers. It is, moreover, of importance to consider who is the workman's actual employer, as if the undertakers are compelled to com- pensate the workman under the above-mentioned provision, the undertakers are given by the same section a right, subject to certain limitations, to recover what they have been forced to pay from the person who was the workman's employer at the time of the accident. If it is proved that one of the terms of the contract of service is, that the Employers' Liability Act shall not apply, the plaintiff cannot avail himself of the benefits given by that Act, and cannot succeed in an action brought under the same (b). It is necessary, therefore, to consider whether the plaintiff has entered into any such contract before the action is launched. In one case a question has arisen as to whether the contract of employment "between the plaintiff and the defendants had not terminated before the accident (c). By the rules of the defendants, the Colliery Co., a miner was not to be paid the wages due to him when he ceased to be in their employ, until he had returned to them the tools which he had used, and which were the property of the defendants. The plaintifi was discharged on a Saturday, but was not paid his wages. On the Monday he descended the pit to fetch his tools, and, whilst doing so, was injured. It was decided that he was still in the employ of the defendants. After the plaintifi has shown that a contract of service, or one personally to execute any work or labour which may be paid for as piece work {d), exists between himself and the (a) "Workmen's Compensation Act, 1897, sec. i. See post p. 129. (i) Griffiths V. Harl of Dudley, 9 Q.B.D. 357 ; 61 L.J.Q.B. 643 ; 47 L.T. 10 : 30 W.K. 797. (c) Cowler v. The Moresby Coal Co., lei., 1 T.L.E. 575. (rf) Stuart T. Evans, 49 L.T. 138 ; 31 W.E. 706. EMPLOYERS' LIABILITY. 25 defendant, lie must prove tliat the work which he had bound himself to execute was manual labour. It must be manual labour of the same class as that in which the labourer, servant in husbandry, journeyman, artificer, handicraftsman or miner, enumerated in the tenth section of the Employers and "Work- men Act, 1875 (a), are engaged (b). It will be observed, in the first place, that domestic or menial servants are excluded from the benefits of the Act. The latter have been defined as those servants who have duties to perform about their master's house, which are of such a nature as to bring them into close intercourse with their master (c) ; and upon this principle a gardener (d) and a huntsman (c) have been held to be menial servants. The other words in the section, " otherwise engaged in manual labour," have been the subject of numerous decisions, great difficulty having arisen where the duties of the plaintiff have consisted partly of manual labour, or, at any rate, of manual work, and partly of other duties. The general rule to be deduced from these cases is, that the substantial work of the plaintiff is to be regarded, and not what he does which is merely incidental to his main employment. It may also be gathered from those decisions that intellectual work is to be more highly regarded than manual labour, when the two are combined in one individual. In accordance with the above rule, a man whose duties were to load and unload a trolly, and drive the horse which pulled it (e), a potter's printer and overlooker (/), and an overlooker of looms (g-), were held to be engaged in manual labour within the meaning of the section ; their physical work being their substantial occupation, and {») 38 & 39 Vict. c. 90. (i) Morffom. L.9.0. Co., 13 Q.B.D. 832; 53 L.J.Q.B. 352; 51 L.T. 213; 48 J.P. 503. Cook v. The North Metropolitan Tramways Co., 18 Q.B.D. 683 ; 56 L.J.Q.B. 309 ; 56 L.T. 448 ; 3 T.L.R. 623. (c) Nicoll T. Qrecmes, 33 L.J.C.P. 259. \i) Nowlan v. Ablett, 2 C. M. & E. 64. («) Yarmouth v. France, 19 Q.B.D. 647 ; 57 L.J.Q.B. 7 ; 36 "W.R. 281. (/) Grainger \. Aynesley, 6 Q.B.D. 182 ; 50 L.J.M.O. 48 ; 43 L.T. 608. (y) Leeeh v. Gartside, 1 T.L.E. 391. 26 WORKMEN'S COMPENSATION AND their other duties being merely ancillary to it. On the other hand, an omnibus conductor (a), the driver of a tramcar(6), the guard of a goods train (c), a grocer's shop-assistant (of), and, presumably, all other shop-assistants, and also a potman at a public-house (e), have been held not to be engaged in manual labour within the meaning of the section. It should, however, be noted that the proceedings taken by the guard of the goods train were under the Employers and Workmen Act, 1875 ; for if such a guard were to sue under the Employers' Liability Act, he would, in all probability, succeed in bringing himself within the expression " railway servant." In the case of the potman, the Court seemed to think that, although he may have been engaged in home duties requiring manual labour, yet, under all the circumstances of the case, he came under the denomination of menial servant. The case of Jacksmi v. Hill 8f Co. (/) has also been regarded by some writers as a decision that a man, who has entered into a lengthy written contract with his employers, to assist the latter in developing new mechanical ideas, and also, to assist, by his own manual labour, in carrying them out, was not en- gaged in manual labour. It is true that such is the effect of the head-note to the report of the case ; but, if the judg- ments are examined, it will be found that the Court did not decide this point. The employers had ordered Jackson to do some ordinary fitter's work, which he declined to do. They then proceeded against him under the Employers and Work- men Act, 1875, for not obeying these orders, and thus absenting himself from his work without lawful excuse. The Court decided, and this was all that they did decide, that, as Jackson had only agreed to do special work, he was not {a) Morgan y. L.G. 0. Co., supra. [b) Cooh V. The North Metropolitan Tramwa/ys Co., supra. («) Hunt T. The G.N.R. Co., 1891, 1 Q.B. 601 ; 60 L.J.Q.B. 216; 64 L.T. 418; 56J.P. 470. {d) Bound v. Lawrence, 1892, 1 Q.B. 226 ; 61 L.J.M.C. 21 ; 66 L.T. 844 ; 66 J.P. 118. (e) Pearce v. Lmsdowne, 62 L.J.Q.B. 441 ; 69 L.T. 316 ; 67 J.P. 760. (/) 13 Q.B.D. 618. EMPLOYERS' LIABILITY. 27 obliged, by his contract, to do ordinary mechanic's work ; and that, therefore, the order given to him was one which he was not bound to obey, and, therefore, he had not been gmlty of absenting himself from his work without lawful excuse when he refused to do such work. There is nothing to show that the Court thought that the magistrates had acted without jurisdiction, as would have been the case if Jackson had not been a workman ; but the learned judges, in their judgment, only say that the magistrates had misconstrued the agreement. It is true that Smith, J., refers, at the end of his judgment, to the case of Morgan v. the London General Omnibus Co., so that probably he had in his mind that Jackson did not come within the definition of a " workman," which is probably the case ; but the decision of the Court does not extend beyond the finding that, under his agreement, Jackson was justified in refusing to do the work which he was ordered to perform. 2. The Injury to the Plaintiff. — In order to succeed under the Act, the plaintiff must show that he has sustained personal injury from one of the causes set out in the five sub-sections of the first section of the Act ; and although, in most cases, there is little difficulty in ascertaining whether the plaintiff has been so unfortunate, yet, occasionally, the question has arisen as to whether the injury to the person has been caused by an act of negligence. It has sometimes happened that the plaintiff has suffered from shock to the system, caused by terror or some other violent emotion of the same character, without any physical contact with any object, where the circimistances which cause this feeling are the result of negligence on the part of the defendants. Thus in the case of The Victorian Railway Commissioners v. Coultas (a), the plaintiff, through the negligence of a gate- keeper in the service of the Commissioners, was allowed to drive across a level crossing when a train was approaching. She got across safely, but her escape was a narrow one, and the terror she endured caused her to suffer from nervous shock, («) 13 App. Oa. 222 ; 67 L.J.P.C. 69 ; 58 L.T. 390 ; 62 J.P. 500. 28 WORKMEN'S COMPENSATION AND by which she sustained considerahle damage. The Judicial Oommittee of the Privy Council held that an action for damages, sustained as aforesaid, would not He, upon the ground that the shock to the plaintiff's nerves could not be looked on as the natural consequence of the negligence of the defendants' servants. It is difficult to see upon what principle this case was decided, as it can hardly be disputed, at the present day, that such an injury to the nervous system can, and often is, caused by a strong emotion of terror; and there appears to be but little difference to the injured person whether there is, through the defendant's negligence, actual physical contact with some sub- tance, which causes an injury, or whether certain bodies are negligently managed in such a manner as to cause, without contact, an injury, often far more serious, to the nervous system. In either case the injured person sustains damage resulting from the negligence of some other person. The writer is sustained in the view thus put forward by several other more recent cases, in which the case of The Victorian Railway Commissioners v. Coultas has been subjected to severe comment. In Pugh v. The L.B. ^ S.C.R. Co. (a), the defendants had insured the plaintiff against injury arising from accident. The plaintiff was a signalman upon their line ; and, on one occasion, a train, in which some carriages were off the line, approached his box. The plaintiff did his duty, and stopped the train ; but the sight of the approaching derailed carriages caused him to suffer from nervous shock. The Court of Appeal held that the nervous shock was injury arising from accident within the meaning of the policy. It will, of course, be seen that the facts of the two cases are not identical, and that injury resulting from accident is by no means the same as injury caused by negligence ; but the re- marks of the learned judges in the Court of Appeal show that they had great doubt whether the case of The Victorian Railway Commissioners v. Coultas was rightly decided. {«) 1896, 2 Q.B. 248 ; 65 L.J.Q.B. 521 ; 74 L.T. 724. EMPLOYERS' LIABILITY. 29 In the case of Wilkinson \. Bowntou (a), ihe defendant had slandered the plaintiff, and the annoyance resulting from the slander caused the plaintiff to fall into ill-health. It was held that this damage sustained hy the plaintiff was not too remote a consequence, and that the action could he sustained. In the case of Bell v. The Great Northern Railway of Ireland {b), the case of The Victorian Railway Commissioners v. Coultas (c) was distinctly disapproved of, and not followed. It has, however, heen decided in the case of Smith v. Johnson and Co., which is not reported, that damage caused hy the shook from fear of harm or injury happening to another person, in such circumstances that the position of danger or injury of such person is caused by the negligence of the defendant, is too remote a consequence of the defendant's negligence to give rise to a cause of action (d). It may be considered, therefore, that the case of The Victorian Railway Commissioners v. Coultas is of very doubtful authority, and probably would not be followed in this country. 3. The Cause or the Injury : Defect in the condition of the Ways, Works, Machinery or Plant due to negligence. — The first sub-section of the first section of the Employers' Liability Act, which must be read with the first and third sub-sections of the second section, gives a workman a right of action if the injury was caused to him by reason of a defect in the condition of the ways, works, machinery or plant connected with or used in the business of the employer, provided that (1) such defect had arisen, or had not been discovered or remedied, owing to the negligence of the em- ployer, 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 ; and (2) that if the workman was aware of the defect or negligence, and gave («) 1897, 2 Q.B. 67. (i) 1890, 26 L.E. Ir. 428. (c) 13 App. Ca. 222 ; 57 L.J.P.C. 69 ; 58 L.T. 390; S2 J.P. 500. (d) Eeferred to in Wilkinson v. Downton, supra. 30 WORKMEN'S COMPENSATION AND no notice of it within a reasonable time to the employer, or to some one superior to himself in the service of the employer, he should not he entitled to any right of compensation or remedy, unless he was aware that the employer or such superior already knew of such defect or negligence. A defect in the condition of the ways, works, machinery or plant is wider than a defect in the ways, works, machinery or plant, hut not much wider. It means 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 its use {a) ; and it must be such a defect in the construction, or subsequent condition of the machine, as to render it unfit for the purpose to which it is applied when used with reasonable care and caution {b). If the machine is in such a condition, that it cannot be worked with safety by the workmen whose duty it is to work it, if they use reasonable care, its condition is defective (c). The machine or article may be perfect, in itself for certain purposes, but if it is used for other purposes for which it cannot be safely used, it is defective in its condition, or, at any rate, the ar- rangement of the works, machinery or plant in which it is so used constitutes a defect in the condition of such works, machinery, or plant (c?). The machine or article must, how- ever, have been put to this dangerous use, or use for which it is unfit, by the employer, or by the person entrusted by him with the duty of seeing that the ways, works, machinery or plant were in proper condition, or with their or his knowledge and assent, express or implied. If the machine or article is put to such use by some person not authorised, expressly or impliedly, by the employer so to do, the latter is not liable (e). (a) McGiffin v. Palmer's Shipbuilding Co., 10 Q.B.D. 6; 62 L.J.Q,.B. 25; 47 L.T. 346 ; 47 J.P. 70. (J) Walsh T. WhiteUy, 21 aB.D. 371 ; 57 L.J.Q.B. 686 ; 63 J.P. 38. \c) Morgan v. Hutehins, 69 L. J.Q.B. 197 ; 6 T.L.R. 219. {d) SesTte v. Samuekon, 12 Q.B.D. 30; 53 L.J.Q.B. 45; 49 L.T. 474. Weblm V. Ballard, \7 Q.B.D. 122; 65 L.J.aB. 396; 64 L.T. 532. Cripps v. Judge, 13 aB.D. 683 ; 63 L.J.Q.B. 517 ; 51 L.T. 182. (e) Jones y. Burford, 1 T.L.E. 137. EMPLOYERS' LIABILITY. 31 A machine, or an arrangement of plant or tackle which can be safely used by those who are actually working it, but yet, in ordinary circumstances, is dangerous to other workmen employed near at hand, is defective in its condition so far as regards those workmen (a). It has been laid down that a defect in the condition of the ways, works, machinery or plant must be a defect which implies negligence in the employer, or in the person entrusted by him with the duty of seeing that they are in proper condition (b) ; but it is conceived that such a proposition only applies where there is no additional evidence of negligence in those persons. It may happen, as in the case of Bebont v. The General Steam Navigation Co. (c), that a defect of a temporary nature exists, which may have arisen whilst the person in charge may have been absent upon his other duties. Whether such person is guilty of negligence or not would depend upon whether he, in the ordinary course of his duties, has had an opportunity of discovering or remedying the defect. But still it cannot, it is submitted, be denied that a defect exists within the meaning of the sub-section, the existence of which, it is true, of itself gives no cause of action, but which, when it is supplemented with other evidence, may be shown to exist by reason of the negligence of the person entrusted with the duty of seeing that the ways, works, machinery or plant were in proper condition. It is submitted that the more correct way of expressing the proposition is, that to give a right of action the circumstances must show (1) that a defect exists, whether or not of such a character that negligence on the part of the persons mentioned in the first sub-section of the second section ought to be in- ferred therefrom, and (2) negligence on the part of such persons which may be implied from the nature of the defect, or proved by other evidence. This view is confirmed by the language of the third sub-section of the second section, which (a) Smith T. Saker, 1891, A.C. 325 ; 60 L.J.Q.B. 683 ; 65 L.T. 467 ; 55 J.P. 660. Stanton v. Serutton, 6 E. 244 ; 62 L.J.Q.B. 406. . (i) Walsh V. Whiteley, supra, {o) Poet p. 32. 32 WORKMEN'S COMPENSATION AND alludes to defect or negligence, and thus evidently contemplates that a defect within the meaning of the first suh-section of the first section can exist, without it heing necessary that negligence should be implied therefrom on the part of the employer or the person entrusted by him with the duty of seeing that such defect should not exist. An employer is not bound to provide the newest form of machinery, and, therefore, the condition of a machine is not defective, although other machines of a newer pattern, and doing the same work, are in existence (a). The negligence, which must exist as well as the defect, in order to give the plain- tiff a right of action, must be that of the employer or of some person entrusted by him with the duty of seeing that the ways, works, machinery or plant are in proper condition. It is not sufficient for the plaintiff to prove a state of affairs which may, indeed, be due to the negligence of the employer or some person entrusted by him with the before-mentioned duty, but which may equally well be caused by the negligence of some other person. The plaintiff must show that it was the duty of the person so entrusted as aforesaid, to discover or remedy the defect, and that he has not done so ; or, in other words, that he ought, while using ordinary and reasonable care in the exercise of his duties, to have discovered or remedied the defect. An excellent illustration of the above is an unreported case, Debont v. The General Steam Navigation Co. The cargo of a ship, belonging to the defendants, was in the course of being unloaded from two hatches. The day's work was on the point of commencing, and the mate of the ship, who was the person entrusted with the duty of seeing that the ways, works, machinery or plant were in proper condition, first of all started the work at the fore hatch, and then went aft, in the course of his duty, to start proceedings at the after hatch. While he was at the after hatchway, he could not see the fore hatch, or what was goiug on there. At some time or another, the [a] Walih T. Whiteley, supra. EMPLOYERS' LIABILITY. 33 driver at the crane, ■which, was used for unloading the cargo at the fore hatch, placed upon the platform of his crane a thick piece of wood. This was a common practice of crane- drivers, as the wood was more comfortahle to stand upon, but it was contrary to the orders of the defendants, who had for- bidden the practice as dangerous. Whilst the first load was being hoisted, the wood slipped under the brake of the crane, which, in consequence, failed to act, and the load fell back into the hold, injuring the plaintiff. The Court of Appeal held that there was no evidence of negligence on the part of the mate, for it was his duty, after starting the work at the fore hatch, to proceed to the after hatch, where he could not see the fore hatchway ; and it was quite possible that the crane-driver placed the wood upon the platform of the crane after the mate had gone aft. If the plaintiff could have shown that the wood had been upon the platform of the crane when the mate was present, there would have been evidence of negligence on his part ; but, as it was, the plaintiff's action failed. On the same principle, if the employer or the person en- trusted with the before-mentioned duty, is justified in trusting to another to see that the ways, works, machinery or plant were in proper condition, he is not guilty of negligence, although such other may fail in his duty, and an accident happens. In the case of Moore v. Gfimson (a) a building, forming a part of the defendant's works, was in the course of repair by a contractor, who had control over it. The defendant's foreman considered that a part of such building was unsafe, and called the contractor's attention to it. The latter shored up the dangerous portion, and assured the foreman that it was safe. The foreman, therefore, relying upon the contractor's information, ordered some workmen to work near the building, a part of which fell and injured the plaintiff, who was one of them. It was held that there was no evidence of negligence on the part of the foreman, as he was justified in trusting to the contractor's assurances. (b) 58 Ii.J.Q.B. 169. 3 34 WORKMEN'S COMPENSATION AND It is submitted that the person who is entrusted with the duty of seeing that the ways, works, machinery or plant are in proper condition must be a person who is in a somewhat superior position. It is submitted that it is not enough for the plaintiff to give evidence showing negligence on the part of a man employed to work one or even two machines, and whose duty it is, in a sense, to see that his particular machine is in proper condition. The only case in which observations, which are apparently contrary to this view, are laid down, is the case of Tate v. Latham {a). In that case, one Cook was a servant of the defendants, and his duty was to work at a saw-bench, where there was a circular saw. There was a moveable guard underneath the bench, which the plaintiff had constructed by the orders of Cook, the latter giving, as his reason, that a visit from the Factory Inspector was ex- pected. Cook, before the accident, removed the guard, and neglected to replace it. The plaintiff, while engaged on his duties, was injured by the part of the saw which ought to have been guarded. It was held that the evidence that Cook told the plaintiff to make a guard for the machine, for the reason above stated, was evidence that he was a person en- trusted by the defendants with the duty of seeing that the machinery was .in proper condition ; but it is expressly stated in the Master of the Rolls' judgment that it was such evidence only in the absence of Cook ; and it may be inferred that if Cook had been called by the defendants as their witness, and had been able to prove that his duties did not extend beyond the duty of working his own machine, and, in that capacity only, of seeing that it was in proper condition, the judgment of the Court would probably have been that he was not a person so entrusted. It is impossible to lay down any exact rule, or to give any definition of a defect in the condition of the ways, works, machinery or plant which would be of any practical use, as the circumstances in which a manufacture is carried on are so widely (a) 1897, 1 Q.B. 502 C.A. ; 76 L.T. 694 D. EMPLOYERS' LIABILITY. 35 different ; but the general rule to be derived from the different decisions upon the sub-section appears to be, that whereas danger in a machine or article does not of itself afford evidence of such a defect, that negligence could be implied from the fact of its existence ; yet if the machine or article in question cannot be used by those, whose duty it is to work it, without danger, even if they use ordinary and reasonable skill and caution, then there is a defect in the condition of the machine or article (a). The same reasoning applies to an arrangement of plant or machinery (b). The reader is referred to the cases collected in Appendix A, under this sub-section, for illustrations of this proposition(c). A great distinction, however, exists between those eases in which, on the one hand, the condition of the ways, works, machinery or plant is defective, whether or not the employer, or the person who is entrusted by him with the duty of seeing that they are in proper condition, is guilty of negligence, and, on the other hand, those cases in which the condition of the ways, works, machinery or plant is not rendered defective, but their use is rendered dangerous by some independent event. In the case of McQiffin v. Palmer's Shipbuilding Co. (d) there existed a way upon the defendants' works. The way was perfect in itself, but a piece of tap (a substance used for lining furnaces) had, by some means or other, been left upon the way, and formed an obstruction thereon. It was held that the condition of the way was not defective, as, although the obstruction upon it placed passers-by in danger, it was not due to any fault or defect in the condition of the way. A way in this sub-section means not a right-of-way, but the course which a workman would, in ordinary circumstances, take in order to go from one part of the shop or works where {a) Walsh v. WhiteUy, 21 Q.B.D. 371 ; 57 L.J.Q.B. 586 ; 63 J.P. 38. Morgan V. Sutohins, 69 L.J.aB. 197 ; 6 T.L.E. 219. (i) Smith V. Balcer, 1891, A.C. 325 ; 60 L.J.aB. 683 ; 66 L.T. 467 ; 55 J.P. 660. Stanton v. Serutton, 5 R. 244 ; 62 L.J.Q.B. 405. (c) Fost p. 166 et seq. [ic) 10 Q.B.D. 5 ; 52 L J.Q.B. 25 ; 47 L.T. 346 ; 47 J.P. 70 ; 31 W.E. 118. See also Pegram v. Dixon, 65 L.J.Q.B. 44 ; 51. J.P. 198. 3a 36 WORKMEN'S COMPENSATION AND the business of his employer is carried on, to another part of the same, in the course of his employment (a). Its condition does not become defective, within the meaning of the sub-section, if it becomes dangerous to those passing along it by reason of some obstruction which does not interfere with the condition of the way itself {b) ; or by reason of some negligent or wrongful act of another (c). If the way becomes dangerous by reason of some operation affecting it being carried on in the ordinary and usual course of the employer's business, and which, neces- sarily, causes its use or even its condition to become dangerous, there is no defect in its condition from which negligence can be implied [d) ; but if the alteration in the state of the ways, works, machinery or plant is made unnecessarily and negligently, then the dangerous state of such ways, works, machinery or plant constitutes a defect in their condition implying negligence (e). It must be borne in mind, however, that although the employer may, in some of the above-mentioned cases, have a good de- fence against a claim under this sub-section, yet the omission on the part of the foreman or superintendent to guard the danger, or to warn the injui-ed person of its existence, may give the latter a cause of action under the other sub-sections of this section. Works. — There can be little or no difficulty in interpreting the meaning of this expression, and, so far as the writer is aware, no ease has been decided which, in any way, gives an interpretation to the word which is different from its obvious meaning. Some controversy, however, has arisen with regard to its meaning when read, as it must be, with the words " connected with or used in the business of the employer." Two cases have been decided upon these words, and at first sight they do not appear to be consistent with one another. In (a) McGiJfin v. Palmer's Shipbuilding Co., supra. Willetts v. Watt & Go , 1892 2 Q.B. 92 ; 61 L.J.Q.B. 540 ; 66 L.T. 818 ; 56 J.P. 772. (J) McGiffin y. Palmei's Shipbuilding Co., supra. (c) Pegram v. Dixon, supra. (d) Willetts V. Watt, 1892, 2 Q.B. 92 ; 61 L.J.Q.B. 540 : 66 L.T. 818 ; 56 J.P. 772. («) Tate V. Latham, 1897, 1 Q.B. 602 O.A. ; 75 L.T. 694 D. EMPLOYERS' LIABILITY. 37 the first case, that of Howe v. Finch (a), a new wall was in the course of being built by the defendants on their works, and for the purposes of their business ; and was imperfectly built, owing to their negligence. On these facts, the Court held that such a partially-built wall did not come within the meaning of the expression, " works connected with or used in the busi- ness of the employer," but that such expression included only works which were completed, and were actually in connection with, or in use, in such business. In the second case, Brannigan v. Robinson {h), the defendant, who was a builder, was in possession of certain premises, for the purpose of pulling them down, in order to erect a theatre upon the site. The defendant negligently allowed a gable of one of the houses to remain unshored, by reason of which it fell upon the plaintiff, who had gone near it in the course of his employment. The Court, in this case, held that the wall, being left unshored, constituted a defect in the con- dition of the defendant's works. It will be seen at once that there is a distinction between the two cases. In the former case the wall, in its partially- built state, was an unfinished article, and was not actually connected with or used in the business. In the latter oalse, on the other hand, the gable was one of the subjects upon which it was the defendant's business to operate, and may be said to have been connected with his business. Wright, J., who delivered one of the judgments in Bran- nigan V. Robinson, endeavoured to distinguish Howe v. Finch upon another ground. He states that the employer who was sued in that case was not the builder of the wall, but the owner of the premises only, and that the wall, being still in an un- finished condition, was in the possession and control of the builder (a contractor) at the time of the accident, and could not have been connected with or used in the business of the employer. These remarks of Wright, J., must be founded (a) 17 Q.B.D. 187 ; 51 J.P. 276 ; 34 "W.R. 593. (6) 1892, 1 a.B. 344 ; 61 L.J.Q.B. 202 ; 66 L.T. 647 ; 66 J.P. 328. 38 WORKMEN'S COMPENSATION AND upon private information, for the writer has searched all the reports of the case, and is unable to find anything stated therein which can account for this distinction, except a state- ment on the part of the counsel for the plaintiff, in the case of Brannigan v. RoMnson, to that effect. The writer respect- fully suggests that, so far as the reported case of Smve v. Finch is concerned, this distinction is untenahle. In all the reports it is distinctly stated, either that the defendants were building the wall themselves, or that the wall was defective owing to their negligence ; and the only question raised was whether, under the circumstances, the wall came within the expression, " works connected with or used in the defendant's business." Mathew, J., in giving his judgment in that case, states that the Court, in deciding as they did, were assuming that the defendants were responsible for the defect in the wall, and, upon that assumption, that the defendants were liable, under the common law, for their negligence, although not under the Employers' Liability Act. If, therefore, the defendants had employed a contractor to build the wall, and the wall was in the latter's possession and control, it is difiicult to see how the defendants could have been guilty of negligence at common law, if the wall was built, as it in fact was, in an improper manner. The writer suggests that the two cases are consistent on the following grounds : It appears to him that the plaintiff, in the case of Hoive v. Finch, was in error in alleging that the defect in question existed in the partially-built wall, because that wall was not connected with or used in the business of the employer, and, therefore, he failed. It is suggested that if he had laid the defect in the condition of the defendant's business premises, which, in ordinary language, would be in- cluded in the word "works," he would have had a better chance of success. It is submitted that premises, where a business is carried on, are defective in their condition, if they are in such a state that a wall which their owners are building, or have in their control, is likely to fall, and thus to injure workmen engaged upon such premises. If such a wall did EMPLOYERS' LIABILITY. 39 fall and injure one of the workmen, it seems to the writer highly prohahle that the workman could successfully allege that, as the works were dangerous to workmen engaged thereon, when the latter were working with, and exercising reasonable care and skill at their work, such premises or works were defective in their condition, and that such defective state was due to the negligence of the defendants, or the person entrusted by them to see that the works were in proper condition (a). It will be observed that Wright, J., in the case of Brannigan v. Rohinson, takes this view, as he observes, in his judgment, that he could not 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, as long as he is carrying on his business there. It will, however, be seen that if the reports of the case of Howe v. Mnch are correct, the same re- mark would hold good in that case also, as it is clear that the spots where the plaintiffs, in each of those cases, were injured, were situated upon the premises in the possession of the re- spective defendants for the purposes of their businesses. Unless, therefore, the writer's suggestion is the correct one, the cases would appear to be inconsistent in principle; and, in any case, it will be satisfactory if some case, where similar questions are involved, is carried to the Court of Appeal. The writer ventures to suggest, therefore, that the principle to be deduced from these two cases is that, although ways, works, machinery or plant which are incomplete, and not in use, do not come within the expression, " ways, works, machinery or plant connected with, or used in the business of the em- ployer," yet the premises, where the employer's business is carried on, are within that expression, and their condition becomes defective within the meaning of the section, if work- men employed thereon are endangered or injured by the negligent building, shoring or stacking of incomplete erections, (a) Walsh V. WhiteUy, 21 CI.B.D. 371 ; 57 L.J.Q.B. 586; 53 J.P. 38. Morgan T. Butehins, 59 L.J.Q.B. 197; 38 W.E. 412; 6 T.L.R. 219. Smith t. Balcer, 1891, A.O. 325 ; ftO L.J.a.B. 683 ; 66 L.T. 467 ; 55 J.P. 660. 40 WORKMEN'S COMPENSATION AND machinery or other material, when such workmen are carrying out their duties with ordinary and reasonable care. Machinery. — There has been no decision known to the writer upon the meaning of this expression, but there is no reason to suppose that its meaning in law differs, in any respect, from its ordinary signification. There are, however, certain statutory provisions contained in the Factory and Workshop Acts, by which a duty is cast upon the employer to fence certain parts of his machinery. A breach of such a duty would give rise to a right of action, both at common law (a), and under the Employers' liability Act (J) ; and, owing to the very far-reaching provisions con- tained in the later Factory and Workshop Acts, it is con- sidered better to treat the obligations of the employer under the Factory and Workshop Acts, and also under other similar statutes in a separate chapter (c). Comparatively few actions, however, have, as yet, been brought for breach of this duty, as plaintiffs and their ad- visers have apparently not yet become aware of the provisions of the Factory and Workshop Acts relating to dangerous machinery. Plant. — This expression includes whatever apparatus is used by a business man for carrying on his business — not his stock-in-trade which he buys or makes for sale, but all goods and chattels, fixed or moveable, live or dead, which he keeps for permanent employment in his business. This definition is to be found in the judgment of Lord Justice Lindley, in the case of Yarmouth v. France {d). In that case a vicious horse was held to be included in the word " plant," and it was also decided that the vice of the horse, which was (a) SohmsY. Clark 6 H & N. 349; Brifton v. Th, Great Western Cotton Co., L.R. 7 Ex. 130 ; 41 L.J. Ex. 99 ; 27 L.T. 126. {b)Saddeley v. £arl Oramille, 19 Q.B.D. 423 ; 66 L.J.Q.B. 601 ; 67 L.T. 268 ■ 61 J. Jr. 822. (c) Chapter IIL, post p. 70. [d) 19 Q.B.D. 647, at p. 668 ; 57 L.J.Q.B. 7 ; 36 W.R, 281. EMPLOYERS' LIABILITY. 41 known to the defendant's foreman, was a defect in its con- dition within the meaning of the sub-section. Connected with or Used in the Business of the Employer. — The ways, works, machinery or plant must he actually in connection with, or in use in the business of the employer ; it is not enough that they are about to he connected with or used in it (a). The employer need not be the owner of such ways, works, machinery or plant; and premises which, although not owned by him, are in his possession and control for the purposes of his business, are works connected with or used in his business within the meaning of the sub- section (6). They must, however, be connected with or used in his business by his authority, or by some person entrusted by him with authority so to use the particular ways, works, machinery or plant Thus, iii the case of Jones v. Burford (c), the defendant was a builder, engaged upon a building operation at a certain house, and his foreman brought down three ladders to the job which were unsuitable. He then borrowed three others from the neighbourhood. After this, one of the work- men, of his own motion, borrowed a ladder from the gardener of the house where the work was carried on. The plaintiff, another workman, used such ladder, which proved defective, and thereby he was injured. On these facts the Court gave judgment for the defendant, upon the ground that the defective ladder was used without his authority, or that of any one for whom he was responsible. The expression " employer " includes a body of persons in- corporate or unincorporate {d). The right given by this sub-section is limited by the third sub-section of the second section, by which it is enacted, that if the workman was aware of the defect or negligence, and gave no notice of it within a reasonable time to the employer, {a) Howe v. Finch, 17 Q.B.D. 187 ; SI J.P. 276 ; 34 "W.E. 593. (*) Brannigan v. BoUnson, 1892, 1 Q.B. 344; 61 L.J.Q.B. 202; 66 L.T. 647 ; 66 J.P. 328. (c) Jones V. Burford, 1 T.L.B. 137. [d) E.L.A., sec. 8. 42 WOEKMBN'S COMPENSATION AND or some person superior to himself in the service of the em- ployer, he is not entitled to any right of compensation or remedy, unless he was aware that the employer or such superior knew of such defect or negligence. In practice, however, this sub-section has but little effect. As a rule, the circumstance which is alleged to be a defect in the condition of the ways, works, machinery or plant is one which is weU known to the superior of the workman, or to the defendant ; and the only questions in the case are whether the condition of the ways, works, machinery or plant is thereby defective, and whether such condition, if it is defective, is due to the negligence of the employer, or of the person entrusted by him with the duty of seeing that the ways, works, machinery or plant were in proper condition. No case, so far as the writer is aware, has been decided upon the words of this sub-section ; but it is submitted that the person superior to the workman, must be a person who is superior to him in the sense that the workman is under his orders or control, and that it would not be sufficient for a workman to give information to a clerk in his employer's office. 4. The Cause of the Injury : Negligence on the part of a superintendent. — By the second sub-section of the first section, compensation is given to a plaintiff for injury caused to him, by reason of the negligence of any person in the service of the employer, who has any superintendence entrusted to him whilst in the exercise of such superintendence, subject to the proviso contained in the third sub-section of the second section, that the workman may not recover in any case where he knew of the negligence which caused the injury, and failed, within a reasonable time, to give, or cause to be given, information thereof to his 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 said negligence. This proviso, which as a rule is of little practical value as a defence in any case, has little or no effect upon the right of EMPLOYERS' LIABILITY. 43 action given by this sub-section. The employer is placed in this dilemma : if the plaintiff did not know that the person entrusted with superintendence was negligent, the proviso has no application ; on the other hand, if he did, it is almost a certainty that the person entrusted with superintendence, in his superior position, and being primd facie a man of greater capabilities than the workman, was also aware of it. In most cases, however, which come under this sub-section, the negli- gence which causes the accident is momentary, and occurs almost simultaneously with the injury. Two questions of importance, however, arise on this sub- section : in the first place, was the individual who was guilty of negligence a person entrusted with superintendence within the meaning of the sub-section ? and secondly, what is the class of negligence which gives rise to a cause of action ? The expression "person who has superintendence entrusted to him " is defined by section 8 of the Employers' Liability Act to mean " a person whose sole or principal duty is that of superintendence, and who is not ordinarily engaged in manual labour." It follows, therefore, that a person who, in the discharge of his ordinary duties, is obliged to perform acts of manual labour, is not a person entrusted with superintendence within the meaning of this sub-section, even although he may have duties of superintendence entrusted to him. Thus, neither a "gangwayman" (a), or the foreman of a gang who worked with his gang at loading a ship, but whose duty it was to warn the men in the hold of the ship when bales were thrown down the hatchway (b), or a banksman who gave the signal to a crane driver for the lowering or raising of buckets by means of the crane (c), are persons entrusted with superintendence ; but, on the other hand, where a person was described in the evidence as a walking foreman and not engaged in manual labour, it la) Shaffers v. Tke General Steam NoAiigation Co., 10 Q.B.D. 366 ; 62 L.J.aB. 260 ; 48 L.T. 228 ; 47 J.P. 327. (I) Kellard v. Soohe, 21 aB.D. 367 ; 57 L.J.Q.B. 699 ; 62 J.P. 820. (c) Claxton v. Mowlem, 4 T.L.K. 756. 44 WORKMEN'S COMPENSATION AND was held that there was evidence upon which a jury could find that he was a person entrusted with superintendence {a). There has been much controversy as to the nature of the negligence which a person entrusted with superintendence must he guilty of in order that the workman may have a right of action under this suh-section. On the one hand, it has been contended that it is necessary that the injury to the plaintiff should be caused by an act of negligent superintendence; whilst, on the other (and in the writer's opinion this latter contention is the correct one), any act of negligence of which the superintendent has been guilty whilst he was exercising superintendence is sufficient, if injury results, to give the plaintiff a right of action. In the case of Shaffers v. The General Steam Navigation Co. (b), although the case was decided against the plaintiff upon the ground that the gangwayman, whose negligence caused the accident, was not a person whose sole or principal duty was that of superintendence, and who was not ordinarily engaged in manual labour ; there are certain observations which certainly point to the fact that the learned judges also considered that the plaintiff was not entitled to succeed, upon the further ground that the gangwayman was not negligent as a superintendent, but merely that an act of manual labour upon his part was a negligent one. It is, however, submitted that the words " whilst in the exercise of superintendence " must have a somewhat broader signification. The person who usually comes within the terms of the definition is, as a rule, the foreman of a department, or of a job, or even in a higher position ; such a man comes upon the works or job when^work commences in the morning, and is present performing his duties (i.e., exercising superin- tendence) until work ceases at night. His sole or principal duty is that of superintendence, but he may, now and then, voluntarily lend a hand to the men under him in some piece of manual work, and in this he may be guilty of negligence. (a) May v. WalHs, 61 J.P. 519 ; 3 T.L.E. 777. {b) 10 Q.B.D. 356 ; 62 L.J.a.B. 260 ; 48 L.T. 228 ; 47 J.P. 327. EMPLOYERS' LIABILITY. 45 It is submitted that by doing this casual act of manual labour he does not strip himself of his character of superintendent ; and the fact that, for a minute or two, he may manually assist in an operation, does not prevent him from still being in the exercise of superintendence. It is to be observed that the language of the sub-section is not " negligence in the exercise of such superintendence," but " negligence whilst {i.e., during the period in which he is) in the exercise of such superin- tendence." This view is supported by two oases, one of which was decided upon this sub-section, the other upon the third sub- section. In the former case, that of Osborne v. Jackson 8f Todd {a), the foreman, who was the person entrusted with super- intendence, and whilst so superintending, handed a plank to a labourer and called upon him to take it. The labourer took hold of the end of the plank, but was too far ofE to be able to hold it; the foreman let go his end, and in consequence the plank struck and injured the plaintiff. The Court held that the employer was liable. It wOl be seen, therefore, that the negligent act in question was a manual act, and one which, in ordinary language, could not be called an exercise of superintendence, but the learned Judges who decided that case were not content with letting their judgment rest on the principle suggested but added dicta, by which it may be inferred that they considered the negligence in question to be an act of superintendence, because the foreman, when handing the plank to the labourer, called on him to take it. It is submitted, however, that the negligence consisted in the foreman letting go the plank before the labourer had got into position to take it. Denman, J., in giving judgment, says : " In the present case, the foreman was generally superintending the work on which the plaintiff and Collier (the labourer) were employed. The foreman called to Collier, who was under his orders, to take the plank when it was impossible to do so safely. That was superintendence, and («) 11 Q.B.D. 619 ; 48 L.T. 642. 46 WORKMEN'S COMPENSATION AND the judge might find, and has found, that it was negligence within the meaning of suh-section 2. I think it was, although Thomas (the foreman) was at the time supplying, as a volun- teer, the place of another workman." Hawkins, J., also m giving judgment, says : " That Thomas had superintendence entrusted to him is clear from his own admission. His duty was to see that the men did not do harm to the others, and he was guilty of negligence ' whilst in the exercise of such super- intendence.' He took the plank, and in effect directed Collier to take it, when he could not do so safely. If Thomas had directed another to do what he did himself, he would surely have been negligent in the exercise of superintendence." It is submitted, however, that these latter remarks are unnecessary for the decision of the case, and the real effect of the decision is that, although Thomas was, when negligent, supplying the place of another workman as a volunteer, yet he had not by so doing cast off from himself the character of a superintendent. It must, however, be admitted that the dic- tum of Hawkins, J., in the last sentence of his judgment, does affect the force of the decision, but the reasoning is difiicult to understand. It seems somewhat doubtful whether a manual act done by A.B. can be considered an act of superintendence on his part, because he might have ordered CD. to do it, and superintended him whilst he was doing it. It is submitted that to be in superintendence necessarily implies the existence of a superintendent and of someone who is superintended. It will be seen also that Hawkins, J., does not draw the distinction which has been before suggested, that the negligence of A.B. whilst in the exercise of superintendence is wider than the negligence of A.B. in the exercise of superintendence. In the case of Wild v. Way good (a), which was a decision upon the next sub-section, it was contended by the defendants that the negligence which gave rise to a cause of action under that sub-section must be negligence in the orders given to the workman ; but it was held that the negligence which gave rise («) Fast p. 49. EMPLOYERS' LIABILITY. 47 to tlie cause of action need only be any kind of negligence in the person to whose orders or directions the workman was bound and did conform, although it must also be proved that the injury resulted from his having so conformed. If analogous reasoning is applied to this sub-section, it will be seen that, in the first place, the plaintiff must prove that he was injured by some act of negligence on the part of the superintendent, and, secondly, that it happened whilst {i.e., during the period in which) the superintendent was in the exercise of such superintendence. The superintendent guilty of negligence need not be en- trusted with superintendence over the person who is injured {a). There are certain provisions in the Factory and Workshop Acts whereby employers and those in their service are pro- hibited from allowing certain classes of workmen from doing certain work, the breach of which would be an act of negli- gence in superintendence. These statutes are more fully treated in Chapter III. (J). 5. Cause of the Injury: Negligence of the person to tvhose orders the tcor/cman is bound to conform. — The third sub-section of the first section of the Act gives a right of compensa- tion to the workman if the injury he has sustained is caused by the negligence of any person in the service of the employer to whose orders or directions the workman at the time of the injury was bound to conform and did conform, where the injury resulted from his having so conformed, subject to the proviso contained in the third sub-section of the second section of the Act, that if the workman was aware of the defect and gave no notice of it within a reasonable time to the employer or to some person superior to himself in the service of the employer, he is not to be entitled to any right of compensation or remedy, unless he was aware that the employer or such superior knew of such defect or negligence. (a) Eay v. Wallis, 61 J.P. 619 ; 3 T.L.E. 777. (i) Post p. 70. 48 WORKMEN'S COMPENSATION AND This proviso, in practice, has but little effect for the same reasons as those which render it practically inoperative in the case of the person entrusted by the employer with superin- tendence. The sub-section has already been more fuUy dis- cussed in dealing with the person so entrusted. The person to whose orders or directions the workman is bound to conform is in an inferior position to the person entrusted with superintendence mentioned in the second sub- section. It is not necessary that this person should be engaged in superintendence ; it is enough if the workman is under his orders. This person may be ordinarily engaged in manual labour ; thus a carman (a), the foreman of a gang who worked with the gang in loading a ship (b), and a joiner under whose orders the workman was placed (c), were held to be persons to whose orders the plaintiff in each case was bound to conform. On the other hand, a printer at work on a calico printing machine, with a back-tenter, was held not to be a person to whose orders or directions the back-tenter was bound to conform (d). It will be seen that although the class of persons included in this sub-section, and for whose negligence the employer is made liable, is larger than the class of superintendents, yet the actual liability for their acts is narrower, as compensation for the injury arising out of their negligence is only given when they are guilty of negligence and also when such injury has resulted from conformity to an order or direction given by them, and not from negligence in their conduct generally. It is not necessary that these orders or directions should be by express words only, but they may be implied from the course of business (e). They need not be negligent in them- selves, nor need conformity to such orders or directions be the {a} Millward v. The Midland Railway Co., 14 Q.B.D. 68 ; 54 L.J.Q.B. 202 ; 49 J.P. 453. (h) KeUardy. Booke, 21 Q.B.D. 367; 57 L.J.Q.B. 599 ; 62 J.P. 820. (o) Wild V. Waygood, 1892, 1 Q.B. 783 ; 61 L.J.Q.B. 391 ; 66 L.T. 309 : 56 J.P. 389. (rf) Soward v. Bennett, 60 L.T. 152 ; 58 L.J.Q.B. 129. ie) Millward t. The M.R. Co., supra. EMPLOYERS' LIABILITY. 49 causa causans of the injury, but the injury must be the result of negligence of the person giving these orders or directions, and of the plaintiff conforming to them. 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 that their joint effect causes the injury, the plaintiff is entitled to suc- ceed (a). In other words, the order or direction may be a perfectly proper order or direction, but if it is followed by an act of negligence on the part of the person giving the order or direction, which puts the plaintiff in a position in which he suffers injury as a result of his having so obeyed, and also by reason of the negligence, the case comes within the sub-sec- tion (a). This interpretation of the sub-section has not been arrived at without some difference of judicial opinion on the subject. In the case of Soward v. Bennett (b), although the point was not necessary for the decision. Lord Coleridge, O.J., expressed his opinion that to give the workman a right of action under this sub-section the injury must be the direct result of the plaintiff's obedience to the order, and not that of a subsequent negligent act on the part of the person who gave the order, which dictum practically lays down that the order must be a negligent one. This opinion was, however, expressly dissented from by the Court of Appeal in the case of Wild v. Way good (c) , which is now the leading decision upon this sub-section. In that case one Duplea, to whose orders the plaintiff was bound to conform, ordered the plaintiff to put a plank across a lift and then to stand upon it. Shortly afterwards Duplea negKgently started the lift, whereby the plank was knocked down and the plaintiff was injured. Upon these facts it was held that the defendant was liable. Lord Herschell, who gave the leading judgment in the Court of Appeal, speaks as follows {d) : " I do not think that, on the true construction of («) Wild V, Waygood, supra. (i) Supra. (c) 1892, 1 Q.B. 783 ; 61 L.J.Q.B. 391 ; 66 L.T. 309 ; 56 J.P. 389. (i) 1892, 1 Q.B., at p. 789. 50 WORKMEN'S COMPENSATION AND this sut-seotion, it is necessary that conformity to the order should he the earner causans of the injury, hecause the provision is that the action may he hrought where personal mjujy is caused hy reason of the negligence. The negligence must be the causa camam of the injury, no douht. That is what gives the right of action, and if the section had stopped there that is all that would have to he proved, viz., negligence which was the causa causans of the injury to the person who sufiered. . But then the section does not stop there, and undoubtedly something more must be proved. It is not enough to prove there was negligence in a servant of the defendant which caused the injury, nor that that negligence was the negligence of the person to whose orders the plaintiff was bound to con- form ; but it must be proved that the injury arose not alone from the negligence of such person, but from his having con- formed to the order Now it is quite clear that the injury did result from 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 that the case is within the very terms of the Act. It is not limited to an order, which order is negligent in itself." lindley, L.J., sums up the doctrine thus laid down in the following words {a) : " The whole, I think, comes to this : that the injury must be the result of the negligence of the person giving these orders and of the plaintiS conforming to these 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." Although the principle upon which this sub-section is to be interpreted is clear enough, it is conceivable that great diffi- culty wiU be experienced not infrequently in applying the (a) 1892, 1 Q.B., at p. 793. EMPLOYEES' LIABILITY. 51 principle to the facts of a particular case. The matter is com- plicated by those decisions by which it is laid down that the orders or directions may be implied from the course of business, or, in other words, that if the foreman sees a workman doing a piece of work in a particular way a few times, and does not signify his dissent, it may be implied that the foreman in question ordered or directed the workman to do it in this particular way. This was decided in the case of Millward v. The Midland Railway Co. {a) A railway van was in charge of one Hicks, a carman, and the plaintiff was a lad under Hicks' orders. In this van were three iron window frames tied by two pieces of string (one at the head and one at the tail of the van) to the hoops supporting the covering of the van. Hicks, in order to unload the van, untied the string at the tail of the van, and the plaintiff, without any order or direction from Hicks, untied the string at the head of the van. He had done so on previous occasions with the knowledge of, and without objection from. Hicks. Hicks pulled one of the frames without retying the others, and the latter fell and injured the plaintiff. The Divisional Court held that, from the above facts, an order or direction on the part of Hicks could be implied, as the plaintiff previously, in the course of business, had acted as he did on this occasion. In the case of Wright v. Wallis (b), one Thomas was the person to whose orders the plaintiff was bound to conform. He ordered the plaintiff to work in a barge alongside a ship, which Thomas' gang was assisting to unload. Thomas and his gang were throwing bundles of iron into the barge, and Thomas, whose duty it was to give warning when one of these bundles was thrown over, did not do so on one occasion, and in consequence the bundle struck and injured the plaintiff. It does not appear from the report, but it is stated by Mr. Euegg, who was one of the counsel in the case, in his book upon the (a) 14 Q.B.D. 68 ; 54 L.J.Q.B. 202 ; 62 L.T. 256 ; 49 J.P. 453. (i) 3 T.L.E. 779. 4a 52 WOEKMEN'S COMPENSATION AND Employers' Liability Act (a), that the order was given by Thomas to the plaintiff in the morning, while the accident happened in the afternoon. The decision of the Court was that Thomas' position appeared on the evidence so doubtful {i.e., whether he was a superintendent or a person to whose orders the plaintiff was bound to conform), that they ordered a new trial (b). Lord Esher, M.E., is, however, reported to have said that the order to stand on the barge and the throwing down of the iron were all part of the same occurrence. It may be doubted whether it was present to the learned judge's mind at that moment that so much time had elapsed between the order and the negligence, and whether the two facts were so disconnected with one another as they, in fact, were. The importance of the times of the order and of the accident did not make any im- pression upon the reporter, as he makes no mention of them ; and probably the only question which occupied the minds of the judges and of those in the Court was, what was the exact position of Thomas ? This is entirely in accordance with what Lindley, L.J., says about the case in Kellard v. Booke (b). In that case (c) the plaintiff was under the orders of one Bbdfield at the time of the accident, but it appeared that the defendant usually superintended the loading of the vessel (which was the work upon which the plaintiff was engaged), but that Bodfield was superintending during the defendant's temporary absence. The manner of loading the ship was to drop bales into the hold. The plaintiEE was in the hold of the ship, and Bodfield, after giving warning, dropped a bale with- out giving the plaintiff time to get out of the way : the bale fell on the plaintiff and injured him. The Court of Appeal found for the defendant on the ground that Bodfield had given no orders from which the accident resulted. As Bodfield was only in temporary command it, of course, could not be Implied that the plaintiEE was in the hold in pursuance of Bodfield's («) 2ud Edit., p. 87. (J) Of. per Lindley, L.J., in Kellard v. Sooke, 21 Q.B.D., at p. 370. (5) 21 Q.B.D. 367 ; 67 L.J.Q.B. 699 ; 62 J.P. 820. EMPLOYERS' LIABILITY. 53 orders ; but there are, in the judgment of Lord Esher, M.E., expressions which would seem to show that from the course of business such an order could be implied. He says : " It was suggested that an order must be implied from the circum- stances. Such an order can only be implied from the ordinary course of business. There was no such course of business here from which any order which caused the accident could be implied." It will be seen that the effect of these three cases, if they stood alone, would be to give this sub-section a very wide operation. If the order or direction can be disconnected, in point of time, from the negligence which causes the injury, and can be implied by the ordinary course of business, it would appear that any injury which is caused to a workman by the negligence of a person under whose orders he is placed, might be said to result from his having obeyed the orders or direc- tions of such person, as it can be implied from the ordinary course of business that the workman was working by reason of orders or directions given him by such person. The Court of Appeal, however, seem to have considered that the observations of Lord Esher, M.E., in Wright v. Wallis, if they are correctly reported, and if it was present to that learned judge's mind that a considerable interval of time had elapsed between the order and the accident, were too wide ; for in the case of Kellard v. Rooke {a) Lindley, L.J., says that he should be sorry if it should be supposed that the former case was an authority for any proposition of law ; and explains that the only decision of the Court in that case was that they con- sidered that sufficient evidence had not been given to show what was Thomas' real position, i.e., whether he was a super- intendent under the second sub-section, or merely a person to whose orders the plaintiff was bound to conform under the third sub-section. The question has further been considered by the Divisional Court in the case of Snowden v. Baynes (h). One Sellick had (a) 21 Q.B.D. 367 ; 57 L.J.Q.B. 699 ; 52 J.P. 820. (b) 24 Q.B.D. 568 ; 38 "W.B. 658. , 54 WORKMEN'S COMPENSATION AND authority to tell the plaintiff what work he was to do each day. On the morning of the day of the accident Sellick told him what he was to do, and in the ordinary course of his work he went into a certain shed. Whilst there, but in the evening, he was injured hy an act of negligence on the part of Sellick. The case was eventually decided in favour of the defendant, as it was proved that the plaintiff had finished his day's work and had voluntarily elected to do overtime, and was injured whUe he was engaged on the latter, and, therefore, was not working in consequence of any order from Sellick. Wills, J., however, in delivering judgment, deals with this question of an order, either given expressly in the ordinary course of business or implied therefrom. He says : " We think it better not to lay down any law which goes beyond the case of Millward v. The Midland Railway Co." (a), and then continues, " 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 performance 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, 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 the 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 acci- dent happened. In such 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 on a particular job, and it is difficult to suppose that such a case could be within the Act." [a] 14 Q.B.p. 68 ; 54 L.J.Q.B. 202 ; 52 L.T. 255 ; 49 J.P. 453. EMPLOYERS' LIABILITY. 55 Since the ease of Snowden t. Baynes (a), the case of Wild v. Waygood (b) has been decided, from which it is clear that it is not necessary, in order to support the action, that the orders themselves should be negligent. It win be observed, however, that in both the cases under this sub-section which have been decided in favour of the plaintiff, the order has related to a particular act, in which, unless a certaia amount of care in relation to that act was shown, danger ensued to the plaintiff. In the case of Millward V. The Midland Railway Co. (c). Hicks must have known that for the plaintiff to untie the window frames at his end would be dangerous to the plaintiff if he (Hicks) attempted to disturb the frames by pulling at them before he had secured them again; so that his negligence was closely connected with the implied order or direction. In the case of Wild v. Waygood, Duplea, in the words of Lord Herschell, ordered the plaintiff to go to a place which he must have known was dangerous if he (Duplea) started the lift. In this case also the act of negli- gence was closely connected with the order to the plaintiff. Lindley, L.J., says that the act of negligence and the order must be so connected together as to cause the injury ; and Kay, L.J., says that the negligence must have an intimate connec- tion with the order and with the conforming of the workman thereto at the time of the injury. It is submitted, therefore, that the criticism of Wills, J., in Snowden v. Baynes (d) still holds good, and that a case cannot be brought within the sub-section when obedience to the order is accompanied by no circumstance of present risk from the person giving the order, and which only involves the presence of the workman in a spot where he is afterwards endangered by acts of the person giving the order. It is submitted that in such a case the order and the negligence would not be so connected as to cause the injury within the principle laid down in the case of Wild v. Waygood. {a) Supra, p. 63. (J) 1892, 1 Q.B. 783; 61 L.J.Q.B. 391 ; 66 L.T. 309 ; 56 J.P. 389. (c) Supra. W 24 aB.D. 568 ; 38 W.E. 568. 56 WORKMEN'S COMPENSATION AND The writer further suggests that if the sub-section is not limited as aforesaid, and if an order can be impKed from the ordinary course of business, the proviso at the end of the sub- section, " Where such injury resulted from his having so con- formed," are rendered almost, if not entirely, nugatory. For instance, A.B. is at work on the premises of CD. under the orders of E.F., and by E.F.'s negligence A.B. is injured. It can be implied from the fact that A.B. was accustomed to work there under the orders of E.F., that he was working in con- formity to E.F.'s orders or directions. If A.B. in such a case is entitled to succeed, it is submitted that the words " Where such injury resulted from his having so conformed " have prac- tically no limiting effect upon the sub-section, and, therefore, no meaning. It was at one time contended that the orders or directions must be such orders or directions as the workman was bound to conform to. In the case of Bunker v. The Midland Railway Co. {a) the plaintiff was under the orders of one Parker. The plaintiff was a van-guard and under fifteen years of age, and there was a regulation of the defendants which prohibited van- guards under fifteen years of age from driving a van. Parker told the plaintiff to drive a van, saying that he would get extra money for doing it. The plaintiff obeyed the order, and in consequence was injured, although he knew that it was con- trary to the rules for him to do so. The Court held that the plaintiff could not succeed, as he was not bound to obey the order and was well aware of the fact. It is impossible to support this decision upon the ground given in the report, although the decision itself was probably correct. It may be supported upon the ground, in the first place, that Parker gave the plaintiff no order or direction, but told him he could drive the van if he liked, and would get extra pay if he did so; or, secondly, on the ground that, although the negligent order of Parker was partly the cause of the accident, yet, as the plaintiff knew of the rules and (a) 47 L.T. 476 ; 31 W.E. 231. EMPLOYERS' LIABILITY. 57 deliberately disobeyed them, the accident was not wholly caused by his conformity to the order, but was also due partially to the plaintiff's own negligence. A glance at the sub-section will show that it contains nothing to the effect that the workman is bound to conform to the particular order, obedience to which results in the injury. The case of Marley v. Osborne (a) shows clearly that it was not the intention of the Legislature to leave to the workman to decide whether the order given to him by a superior was one to which he was bound to conform. The question was whether it was given to him by a person to whose orders he was bound to conform. If a foreman orders a workman to do a piece of work which he (the foreman) knows that the latter is not qualified or com- petent to do and the workman is thereby injured, it is an act of negligence on the part of the foreman within the meaning of this sub-section (b). To order a workman to do a piece of work which the person giving the order is by statute prohibited from permitting the workman to do, would be an act of negligence within this sub- section. See also Chapter III. (c) 6. Cause of the Injury: By an act or omission made in pursuance of rules, hye-laws, or particular instructions. — The fourth sub-section of the first section of the Act must be read with the second sub-section of the second section thereof. The effect of the two sub-sections is to give a right of action to the workman if he suffers injury, not from the negligence of a fellow-servant, but from the act or omission of any person in the service of the employer, made or done in obedience to the rules or bye-laws of the employer, or in obedience to particular instructions given to any person delegated with the authority of the employer in that behalf ; provided that there must be some impropriety or defect in the rules, bye-laws, or instructions (a) 10 T.L.E. 388. (J) Barter Y. Burt, 10 T.L.R. 383. (c) Post p. 70. 58 WOItKMEN'S COMPENSATION AND therein mentioned ; and provided further that any such rule or bye-law which has been approved or accepted as a proper rule or bye-law by a Principal Secretary of State or a Government Department shall not be considered improper or defective. One of Her Majesty's Principal Secretaries of State may approve or accept rules or bye-laws relating to certain factories or mines under or by virtue of the provisions of the Factory and Workshop Acts (a), The Coal Mines Regulation Act, 1887 {b), and the Metalliferous Mines Eegulation Act, 1872 (c). The Board of Trade or the Local Government Board has the like power with regard to bye-laws made by railway com- panies (d), and under the Alkali Act (e), and jointly with the Secretary of State with regard to rules made under the Explo- sives Act, 1875 (/). It wUl be seen that this sub-section still further enlarges the class of workmen for whose acts the employer is answerable : the person mentioned in this sub-section need not be a super- intendent, or in any way superior to the workman who is injured. At the same time, the extent of the liability of the employer for his acts is stiU further limited ; that is to say, the employer is not responsible for the acts done by such person on his own initiative, but only for those acts which are done by him in obedience to the rules, or bye-laws, or particular instruc- tions to do the particular act, or make the particular omission. The sub-section, however, has been of but little practical use, and the writer is not aware of any case in which the workman has succeeded in an action brought under its provisions. It will be seen that its principle is different from that contained in the other sub-sections of the first section of the Act, inas- much as the cause of action given by these other sub-sections {a) 64 & 55 Vict. c. 76, s. 8 ; 68 & 69 Vict. u. 37, a. 28 ; see also Chapter IH., post p. 70. (J) 50 & 61 Vict. c. 58, s. 61. {c) 35 & 36 Vict. c. 77, a. 24. (d) 3 & 4 Vict. c. 97, ss. 7, 8. (e) 44 & 45 Vict. c. 37, =. 20. (/) 38 Vict. c. 17, 88. 35, 36. EMPLOYERS' LIABILITY. 59 is, in fact, negligence on the part of the person who is in contact with the workman, whereas in this section a cause of action is given, not where the injury is caused by the negli- gence of the person directly in contact with the workman, but when it occurs by reason of such person carefully carrying out his instructions, owing to some defect or impropriety in the same, when injury thereby results to the workman. It is clear that such rules, bye-laws, or instructions must be, in some way, improper or defective ; and in that case the cause of action given to the workman or to his representatives is only that which is given to them if a contract of employment had not existed between the former and his employer (ffl). It follows, therefore, that the rules, bye-laws, or instructions must be negligent, as well as defective or improper, in order to give rise to a cause of action. It woxdd appear, therefore, that the plaintiff, in such a case, would have had a good cause of action at common law without any of the restrictions imposed by the Act, and probably this fact, combined with the rarity of acci- dents happening from such a cause, accounts for the little use to which the sub-section has been put. It may be suggested that the person delegated must be delegated specially by the employer on a particular occasion to give those particular instructions; but it appears to the writer that an ordinary foreman, delegated with the ordinary authority of such a fore- man, who, in the course of his duty, gives particular instructions to do a piece of work in a particular manner, comes within the words of the sub-section, inasmuch as he would be undoubtedly delegated by the employer with authority to give such par- ticular instructions. If the person to whom these particular instructions are given goes to a certain place and there works in obedience to such instructions, and is then guilty of negligence not com- mitted in obedience to such instructions, such act of negligence is not such a consequence of such particular instructions as to bring the case within this sub-section (6). If the particular (a) E.L.A. sec. 1. (i) Whatley v. HoUoway, 62 L.T. 639 ; 54 J.P. 645 ; 6 T.L.E. 353. 60 WOBKMEN'S COMPENSATION AND instructions can be carried out in a proper and safe way, but are, in fact, carried out in a negligent manner -which results in injury to the workman, the result is not due to obedience to the particular instructions, and an action will not lie under this sub-section (a). A banksman is not a person delegated within the meaning of the sub-section (b). 7. Cause of the Injury : NegUgeme of a person in charge or control of any signal, points, locomoti've engine, or train upon a railway. — By the fifth sub-section of the first section a right of action is given to a workman if he is injured by the negli- gence of any person in the service of the employer who has the charge or control of any signal, points, locomotive engine or train upon a railway, subject to the proviso contained in the third sub-section of the second section of the Act, that the workman, if he knew of such negligence, must, in order to recover, have given, or caused to be given, within a reasonable time, information thereof to his employer, or to some one superior to himself in his employer's service, unless he was aware that the employer or such superior already knew of such negligence. A person in charge of a train does not necessarily cease to have charge over a part of it which has been separated from the remainder with which he remains ; nor are the words of the sub-section confined to the one person who actually moves, or has complete charge or control, over the whole or parts of the train ; thus, both an engine driver and a fireman may each be in charge or control of a train (c), and a person who works a hydraulic engine rotating a capstan, by which a line of trucks was moved at a place for loading and shifting trucks, is a person in charge or control of a train [d), and the line of trucks moved by him was held to be a train upon a railway within the meaning of the sub-section {d). {a) Whatley v. Holloway, supra. (b) Claxton T. Mowlem # Co., 4 T.L.R. 756. {c) McCord V. Cammell # Go., Ltd., 1896, A.O. 67 ; 65 L. J.Q.B. 202 ; 73 L T. 634 ; 60 J.P. 180. (d) Cox V. G.TF.S. Co., 9 Q.B.D. 106 ; 30 W.E. 816 ; 47 J.P. 118. EMPLOYERS' LIABILITY. 61 A temporary line of rails laid down, to be used in the con- struction of a permanent line of railway, is a " railway " within the meaning of this suh-section (a), but a locomotive engine refers only to an engine which is used for traction purposes upon a railway {b). A person in charge or control of points is a person who has general charge of the working thereof for the purposes of traffic (c), or, at any rate, has a general, and not merely a temporary, charge or control thereof ; thus, a man whose duty it was to clean and oil the points is not such a person as is described in this sub-section {d). It would seem probable that the Legislature only intended that the employer should be responsible under this sub-section if the person in charge or control was guilty of negligence in such charge or control, but there appears to be nothing in the sub-section which so limits its scope, and the reasoning upon which the case of Wild v. Way good (e) was decided is clearly against this view. It is, therefore, probable that the employer will be held liable for any damage caused by the negligence of any person in his service who is in charge or control of any signal, points, locomotive engine or train upon a railway, if circumstances arise (which will probably be of rare occurrence) in which he is guilty of negligence whilst in such charge or control as aforesaid. 8. The Eight of Compensation. — Where the workman has been killed, or has sustained personal injury by reason of one of the different causes of such death or injury which are contained in the five sub-sections which have just been examined, the first section of the Act gives to the workman, or in case the injury results in death, to the, legal personal representatives of the workman and any persons entitled in case of death, the same (») Doughty v. Mrbmh, 10 Q.B.D. 358 ; 62 L.J.Q.B. 480 ; 48 L.T. 530. (h) Murphy v. Wilson, 52 L.J.Q.B. 524 ; 48 L.T. 788 ; 48 J.P. 24. (c) Gihla V. G. W.B. Co., 11 Q.B.D. 22 ; 48 L.T. 640. (d) Gihhsy. G.W.R. Co., 12 Q.B.D. 208; 63 L.J.Q.B. 543; 50 L.T. 7. (e) Ante p. 49. 62 WORKMEN'S COMPENSATION AND 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. In such circumstances, therefore, i.e., when the injury to the workman has happened by reason of one of the causes contained in the said five sub-sections, the workman is placed in the position of a visitor invited by the employer to come upon his premises either on mutual business {a) or on business of the employer's own (J). He has, therefore, to prove two things in order to succeed in his action against his employer. The first is, that the defendant has been guilty by himself or someone for whom he is responsible under the Act of negli- gence, that is to say, of some breach of duty towards the plaintiff himself. The second, that such negligence had been the proximate cause of the accident ; that there had not merely been incuria, but incuria dans locum injurim. Whether there has, or has not, been contributory negligence is, to speak pre- cisely, only a branch of this second enquiry. Contributory negligence in a plaintiff only means that he himself has con- tributed to the accident in such a sense as to render the defendant's breach of duty no longer its proximate cause (c). This subject, however, is too large to be dealt with con- veniently at this place, and it has been thought better to examine the question of negligence and the defences of the employer in an action brought to recover compensation for injuries caused thereby in a separate chapter {d). The rights of the legal personal representatives and other persons entitled in case of the death of the workman, when such death is caused under circumstances which, if the work- man had survived, would have enabled him to recover com- pensation from his employer, are fully treated in the chapter relating to actions under Lord Campbell's Act and the amend- ing statute (e). (a) Thomas v. Quartermaine, per Fry, L.J., 18 Q.B.D., at p. 703. {b) Thomas v. Quartermaine, per Bowen, L.J., at p. 694. (c) Fer Bowen, L.J., at p. 694. (d) Fast p. 90. (e) Post p. 78. EMPLOYERS' LIABILITY. 63 If the defendant dies after the injury is sustained, and before judgment is recovered against him, the action abates and the plaintiff, or if he has been killed, his legal personal representatiTes and other persons entitled in the event of his death, have no remedy against the defendant's legal personal representatives («). It must also be remembered that certain provisions of the Employers' Liability Act, with regard to the notice of injury and the commencement of the action, must be complied with before an action can be successfully maintained under that statute. These provisions are contained in the two following sections of this chapter. 9. Notice or Injury : Has this been duly given. — An action under this statute is not maintainable unless notice that injury has been sustained is given within six weeks from the occur- rence of the accident causing the injury (6). It has not yet been decided whether, in cases which result in death, the period of six weeks runs from the accident or from the death, but it is thought that the period runs from the time of the death. The question is not of much moment, as in cases resulting in death the want of notice is not a bar to the action if the judge is of opinion that there was reasonable excuse for such want of notice (c). It is provided by the seventh section of the Act that such notice shall give the name and address of the person injured, and sha.ll state in ordinary language the cause of the injury and the date at which it was sustained. It must be served upon the employer, or, if there is more than one employer, upon one of them. It may be served by delivering it at the residence or place of business of the person on whom it is to be served, but it may also be served by post by a registered letter addressed to the person on whom it is to be served at his last known place of residence or business, and if served by post (a) Gillett v. Fairimlc, 3 T.L.E. 618. \b) E.L.A., 1880, sec. 4. («) E.L.A., 1880, sec. 4. 64 WORKMEN'S COMPENSATION AND shall be deemed to have been served at the time when the letter containing the notice would be delivered in the ordinary course of post. In such case it is not necessary to prove actual ser- vice, but it is sufficient to prove that the notice was properly addressed and registered (a). Where the employer is a body of persons corporate or unin- corporate, the notice shall be served by delivering it at, or by sending it by post in a registered letter addressed to, the office or any one of the offices of such body (5). The receipt of the notice by the employer within the six weeks may, of course, be proved by other means (c). Such notice is not rendered invalid by any defect or in- accuracy therein, unless the judge who tries the case is of opinion that the defendant was prejudiced iu his defence by such defect or inaccuracy, and that the same were for the purpose of misleading («?). It has been decided that, if the defendant intends to rely upon the fact that no notice has been served upon him, he must file a notice of special defence to that effect (e). It must, however, always be borne in mind that in cases of accidents resulting in death, such want of notice does not bar the action if the judge who tries the case thinks that there is reasonable excuse for such want of notice (/ ). The notice of injury must be in writing (g), but may consist of more than one document, provided that the one document incorporates the other and both are delivered within the six weeks (A). The somewhat numerous details directed by the seventh section to be given in the notice are necessary if the (o) E.L.A., 1880, sec. 7. (*) E.L.A.,Beo. 7. («) Mearn v. FhiUips, 1 T.L.R. 476. (d) E.L.A., sec. 7. (e) Conrot/ v. Peacock, 1897, 2 Q-B. 6; 66 L.J.Q.B. 425; 76 L.T. 465 ; 61 J.P. 310; C.C.E. O.X. rr. 10, 18a. See also Chapter VI., post p. 114. For form of notice, &c., see post p. 235. (/) E.L.A., sec. 4. iff) MoyU T. Jenkins, 8 Q B.D. 116; 61 L.J.Q,.B. 112; 46 L.T. 472; 30 "W.E. 324. [h) Keen v. Millwall Docks Co., 8 Q.B.D. 482 ; 61 L.J.Q.B. 277 ; 46 J.P. 436. EMPLOYERS' LIABILITY. 65 notice is to be a perfect one ; but a notice of injuxy, bowever defective in sucb particulars, is valid (a) , and should be so treated by the judge at the trial, unless he is of opinion both that the defendant is prejudiced in his defence by any such defect or inaccuracy, and also that such defect or inaccuracy was for the purpose of misleading (b). His opinion must be a judicial one, founded upon evidence (c). " As long as notice that an injury has been sustained is duly given that will satisfy the Act ; but if the address of the person injui-ed is omitted, or the cause of the injury, or the date at which it is sustained, all these are defects in the notice. So again, if a wrong address is given, or if the cause of the injury is wrongly stated, or if the date given is incorrect, all these are in- accuracies in the notice. But the Act expressly provides that, notwithstanding the fact of the notice containing such defects or inaccuracies, the notice may still be good, unless it shall appear to the judge who tries the action that the defendant in the action is prejudiced thereby, and that the defect or in- accuracy is for the purpose of misleading him " (d). The notice is not invalid if it gives notice of the injury, although it may allege that the injury was caused by one form of negligence and the jury find for the plaintiff on the ground that it was, in fact, caused by another, so long as it gives the employer sub- stantial notice of what has occurred (e). The only case which runs counter to the general current of authority is that of Keen V. The Millwall Docks Co.(f). The notice, so far as is material, was in the following terms : "I am instructed by George Keen, of 136, Rhodeswell EiOad, Limehouse, to apply to you for compensation for injury received at your dock," and the Court of Appeal held that this was not a sufficient notice. This case was almost immediately afterwards followed by the case of Stone V. Syde {g), where the notice was substantially in identical («) Frevidi v. Gatti, 58 L.T. 762 ; 52 J.P. 646 ; 36 W.E. 670 ; 4 T.L.E. 487. (*) E.L.A., sec. 7. (e) Stone t. Hyde, 9 aB.D. 76 ; 51 L.J.Q.B. 452 ; 46 L.T. 421 ; 46 J.P. 788. (d) Frevidi v. Gatti, supra, per Cave, J. [e) Clarkson v. Mmgrave, 9 Q.B.D. 386 ; 51 L.J.Q.B. 526 ; 31 "W.E. 47. (/) 8 Q.B.D. 482 ; 51 L.J.Q.B. 277 ; 46 J.P. 435. {g) Supra. 5 66 WORKMEN'S COMPENSATION AND terms except that the date of the injury was added. ^ The Divisional Court held that the notice was valid. It is difficult to explain why the decision of the Court of Appeal was thus ignored, because the omission of the date of the injury has heen held to he a mere defect, not rendering the notice invalid (a). However, the cases which have since been decided have, in fact, followed Stom v. Hyde, and most probably the case oiEeen v. The Milkvall Docks Co. cannot now be relied on except where the words of the notice are identical. The latest and most complete statement of the law on the subject is contained in the ease of Previdi v. Gatti (6), and the reasoning in the judg- ment of that case, which is quoted above {h), is no doubt correct. The various notices which have been the subject of judicial decision are set out in full in the note to the fourth section of the Act in Appendix A (c). 10. The Limitation of the Action : The period within which it must he commenced. — To be maintainable the action, in case of injury, must be commenced within six months from the occurrence of the accident causing the injury ; in case of death it must be commenced within twelve months from the time of the death {d) . It will be noticed that in cases of injury the time runs from the accident, but in cases of death from the time of the death, as in such cases it is the damage sustained by the death which (together with the injury to the deceased caused by negligence as aforesaid) gives the right to sue. If it is proposed to rely upon the fact that the action has not been commenced within one of the above-mentioned periods, it will be necessary for the defendant to file a notice of special defence (e). The months mentioned are calendar months {f). (a) Carter t. Drysdale, 12 Q.B.D. 91 : 53 L.J.Q.B. 557 ; 32 W-E. 171. (b) Supra, p. 65. ( c) Post p. 180. {cl) E.L.A., sec. 4. («) C.C.R. 1889, O.X. rr. 10, 14a, 18a ; see also under Practice, Chapter VI., post p. 114. (/) 13 & 14 Vict. 0. 21, sec. 4. EMPLOYERS' LIABILITY. 67 11. The Damages : What compensation the plaintiff can re- cover in an action under this Act. — The amount of compensa- tion recoverable may not exceed such sum as may be found the 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 (a). The damages will be the amount of the loss sustained by the workman, and, therefore, are not limited to the wages paid to a workman by the employer in whose service he is injured (6). Thus, a workman who worked at his trade under A. for stated wages was injured whilst in his employ, but was also accustomed to work overtime at the same class of work for another employer for extra wages, was held to be entitled to have his damages assessed upon the aggregate amount per week of both sets of wages (J). In estimating the maximum, however, this right is to be limited to a workman who works at the same trade or employment under both masters, so as to bring himself within the words " in the like employment." If a man who works at the trade of an engineer's fitter, and is injured in it, was accustomed to earn extra wages as a gardener, he could hardly claim those extra wages as a part of the earnings of a person in the same grade, in the like employment, and in the district in which the workman is employed. The word " earnings " includes money and some things other than money, but having a definite money value (c), such as food given to a workman, or perhaps board and lodging {d) ; but tuition, or rather, the value of tuition, is not one of such things (c). In the case of Noel v. The Redruth Foundry Co. ( c) a curious point arose. The plaintiff had been a pupil fitter for (a) E.L.A., B. 3. (*) BoHick V. Head, 53 L.T. 909 ; 34 W.R. 102 ; 50 J.P. 327. (e) Noel^. The Sedruth Foimdry Go., 1896, 1 Q.B. 453; 74 L.T. 196; 44 "W.R. 407. {d) Suggested in the argument by the Court in Noel v. The Redruth Foimdry Co. 5a 68 WORKMEN'S COMPENSATION AND five years, and his wages had commenced at one shilling per week for the first year, and had increased at the rate of one shilling per week in each successive year, so that at the time of his accident in his fifth year he was earning five shillings a week. The question, therefore, arose whether he was entitled to obtain compensation as a pupil fitter only, or whether he could claim it on the footing of an ordinary workman doing the work he was doing, in which case he would be entitled to compensation on the footing of wages at fourteen or fifteen shillings a week. The Court decided in favour of the de- fendants that he could only claim as a pupil fitter. Then a second point was to a certain extent discussed, which was whether he was entitled to be compensated on the basis of wages at five shillings a week, or whether he could only claim the wages of the three preceding years, i.e., one year at three shillings, one at four, and the third at five shillings per week. The Court strongly intimated their opinion that the latter interpretation was the correct one. The defendants' counsel, however, intimated that the defendants were willing that the plaintiff should receive compensation on the basis of wages at five shillings per week for the three years preceding the injury. There can, in the writer's opinion, be no doubt that the opinion of the Court was correct, and, no doubt, the principle is an important one. It not infrequently happens that a boy just commencing work at the age of fourteen or fifteen years is injured when neither he nor any boy in his position has been at work for more than one or two years. It would appear, upon the same principle as that indicated in the case of Noel v. The Redruth Foundry Co., that in a case where the injured plaintiff is fifteen years old, and the usual age for boys to begin working at the plaintiff's trade is fourteen years, the compensation to which the plaintiff is entitled would be limited to one year's wages. The writer is bound to say that in a case, Heasman v. Way good, Ltd. (a), the learned deputy county court judge expressed great doubt on the matter, and refused to (a) Unreported, EMPLOYERS' LIABILITY. 69 direct the jury in aooordance with the defendants' contention. The verdict of the jury, however, was for the plaintiEE for the siun of one farthing, so that the defendants could not, of course, test the ruling in a superior Court. Where any penalty, or any part of a penalty, has been paid, pursuant to any other Act of Parliament, to the workman or his representatives or other persons entitled in the event of his death, such penalty, or part thereof, is to be deducted from any compensation awarded to the workman or to any such persons claiming under or through him ; and where any action has been brought under the Employers' Liability Act, 1880, and pay- ment of any penalty, or part of a penalty, has not been pre- viously made, the workman and those claiming under or through him are not entitled to receive such penalty, or any part thereof, under any other Act of Parliament in respect of the same matter (a). The Factory and Workshop Act, 1878, provides that under certain cirotimstances the occupier of a factory or workshop is liable to a fine not exceeding one hundred pounds, the whole or part of which may be applied for the benefit of the injured person or his family or otherwise, as a Secretary of State may determine (b). Similar provisions as to penalties are contained in the Coal Mines Regulation Act(c) and the Metalliferous Mines Eegulation Act (d). {a) E.L.A., sec. 5. {*) 41 Vict. 0. 16, sec. 82. (c) 50 & 51 Vict. 0. 68, sec. 70. id) 35 & 36 Vict. c. 77, sec. 38. 70 WORKMEN'S COMPENSATION AND CHA.PTEE III. THE FACTOEY AND WORKSHOP ACTS, AND THEIR EFFECT UPON THE CONTRACT OF EMPLOYMENT. It has already been shown, in the two preceding chapters, that in order that a workman might maintain an action against his employer, either at common law, or under the provisions of the Employers' Liability Act, it was necessary for him to show, in the first place, a duty on the part of his employer towards himself ; and, secondly, a breach of such duty, which was the direct cause of the accident. It has also been shown that, as a rule, such a duty depended upon and was created by the terms of the contract of the employment, either express or implied. By certain statutes, however, certain duties are imposed upon the employer, and in some cases on other people with regard to workpeople, and any breach of such duties, if injury results to the employe, will give the latter a right of action against the person upon whom the duty was imposed. Chief amongst these statutes are the Factory and Workshop Acts, which impose upon the occupier, and in some cases upon the owner of a factory, the duty of fencing, or otherwise ren- dering secure, certain parts of the machinery in a factory, and which also prescribe certain restrictions on the employment of children, young persons, and women. It cannot be maintained that this duty exists in respect to every person who, for his own purposes, goes on to the premises of the employer. For the purposes of this book, however, it is not material to enquire to what classes of persons this duty extends, as there can be no doubt that an employe working upon his employer's premises and amongst his employer's machinery, is entitled to the benefit of the provisions contained EMPLOYERS' LIABILITY. 71 by these statutes ; and a duty exists on the part of the employer towards all persons employed at the factory to see that the statutory requirements are carried out (a). In a word, the duty imposed by statute upon the employer exists towards those who are upon the employer's premises, on the employer's or on their mutual business ; and the contract of employment, by placing the employe in such a category, applies such duty specially to the workman himself, and gives him a right to recover compen- sation from his employer, if he is injured by the latter's breach of any such duty. (6) It follows, therefore, that the employe, in order to succeed, must prove : 1. That he was lawfully upon the employer's premises, and this he does by proving the contract of employ- ment. 2. The statutory obligation. 3. The breach. 4. That the accident occurred by reason thereof. It follows, therefore, that if the plaintiff has been guilty of contributory negligence, he fails to prove the fourth of the above propositions and must fail in his action (c). As, however, this defence is maintainable, when the facts warrant it, as an answer to every action to recover damages for a breach of duty or for negligence, the subject is treated fully in a separate chapter {d). The action wiU. lie at common law, as the duty is imposed on the master personally, and, therefore, any breach thereof is his personal negligence, and in some cases under the Employers' (a) Eelly v. Tke Globe Sugar Refining Co., 20 Eettie 833. (J) Bohnes v. Clarke, 6 H. & N. 349 ; Britton v. The Great Western Cotton Co., L.E. 7 Ex. 130; 41 L.J. Ex. 99 ; 27 L.T. 125; BaddeUy \. Barl Granville, 19 Q.B.D. 423 ; 56 L.J.Q.B. 501 ; 67 L.T. 268 ; Chapman v. The JUitro- Fhosphate Co., 1 T.L.R. 493. {c) Caswell t. Worth, 5 E. & B. 849 ; 25 L.J.Q.B. 121 ; Senior v. Ward, 1 El. & El. 385 ; 28 L.J.Q.B. 139. {d) Foat p. 95. 72 WORKMEN'S COMPENSATION AND Liability Act, either because the want of a fence, etc., constitutes a defect in the condition of a machine, which has been allowed to exist owing to the breach of duty or negligence of the master, or perhaps in matters of superintendence or orders under the second, third or fourth sub-sections of the first section of the Employers' Liability Act. The statutory duties imposed by the Factory and "Workshop Acts may be divided into two classes : those relating to the fencing of machinery or otherwise rendering it safe, and, secondly, those relating to superintendence. 1. Machinery. — With regard to the first and most important class, namely, the fencing of machinery, it is provided that every hoist and teagle («), and every fly-wheel, directly connected with the steam or water or other mechanical power, whether in the engine-house or not, and every part of (S) any water-wheel, or engine worked by any such power (c), shall be securely fenced {d) ; and every wheel-race not otherwise secured, shall be securely fenced close to the edge of the wheel-race {e) ; and all dangerous parts of the machinery {/), and every part of the mill-gearing, shall either be securely fenced, or be in such position, or of such construction, as to be equally safe to every person employed {g), or working (A) in the factory, as it would be if it were securely fenced (») ; and all fencing shall be con- stantly maintained in an efficient state while the parts required to be fenced are in motion or use (J), except when the parts are under repair, or under examination in connection with repairs, or are necessarily exposed, for the purpose of cleaning or (a) 41 Viot. 0. 16, s. 6 (1) ; 54 & 55 Vict. o. 75, s. 6 (1). (S) 41 Viot. c. 16, B. 5. (1). (<•) 58 & 69 Vict. c. 37, B. 7 (1). (rf) 41 Vict. u. 16, s. 5 (1). (e) 41 Vict. u. 16, a. 5 (2). (/) 54 & 65 Vict. c. 75, s. 6 (2). (g) 41 Viot. c. 16, s. 5 (3). (A) 58 & 69 Vict. 0. 37, B. 7 (2). (i) 41 Viot. e. 16, s. 5 (3). U) 41 Vict. c. 16, a. 5 (4). EMPLOYERS' LIABILITY. 73 lubrioating, or for altering the gearing or arrangement of the parts of the machine {a). It is also provided that in any factory erected after the sixth of July, 1895, the traversing carriage of any self-acting machine shaU. not be allowed to run out within a distance of eighteen inches from any fixed structure, not being part of the machine, if the space over which it so runs out is a space over which any person is liable to pass {b). These provisions are all of importance, but that which is most likely to lead to Ktigation is contained in the section relating to the fencing of all dangerous parts of machinery (c). The nature of a hoist, teagle, or fly-wheel is well known ; and mill- gearing is defined as comprehending every shaft, whether up- right, oblique, or horizontal, and every wheel, drum or pulley by which the motion of the first moving power is communicated to any machine appertaining to a manufacturing process {d), but no definition is anjrwhere given of " dangerous parts of the machinery " (e). The only approach to a definition is that the word " machinery " includes any driving strap or band (/) ; but what is a dangerous part of the machinery is left entirely open. The word " machinery " is quite general, and includes all the operative machinery in a factory, and is not confined to machi- nery ejusdem generis with that mentioned in the fifth section of the Factory and "Workshop Act, 1878 {g). The decision in Redgrave v. Lloyd does not, however, lay down any guide or principle as to what parts of such machinery are to be considered as dangerous. It is clear that the words cannot mean every part of a machine by which any employe can, by wilful default or gross negligence, do himself an injury ; for in that case every («) 58 & 59 Vict. 0. 37, s. 7 (3). (b) 58 & 59 Vict. u. 37, o. 9 (1). («) 41 Vict. c. 16, 8. 5 (3) ; 54 & 55 Vict. c. 76, s. 6 (2). (d) 41 Vict. 0. 16, s. 96. (e) 54 & 55 Vict. .;. 75, d. 6 (2). (/) 54 & 55 Vict. s. 37. (g) Eedgrave v. Lloycl, 1896, 1 Q.B. 876 ; 64 L.J.M.C. 155; 72 L.T. 565 ; 59 J.P. 293. 74 WORKMEN'S COMPENSATION AND power machine -would have to he put in a cage. It is suhmitted that danger in the condition of the machinery under this statute has much the same meaning as defect in the condition of the ways, works, machinery or plant has under the Employers' Liability Act, 1880. It has heen pointed out in the cases decided on the Employers' Liability Act that danger does not of itself prove a defect ; but that if a machine is dangerous to the workmen whose duty it is to work it, when they use ordinary care and skill, the condition of the machine is defec- tive (a). Moreover, it is to be observed that, by the Factory and Workshop Act, 1895, power is given to a Court of Summary Jurisdiction to make orders with regard (according to the mar- ginal notes of the statute) to dangerous factories and machin- ery (b), and the test given in that statute is, that the Court, before making such orders, must be satisfied that the manufacturing process in the factory proceeded against, cannot be carried on as it is at the time of the complaint without danger to life or limb ; or that the machinery is in such a condition that it cannot be used without danger to life or limb. It will be seen that the governing words of the sections are " cannot be used without danger to life or limb," and, therefore, the inference is, that if the machinery in question can be used by workmen possessed of ordinary care and skill, without danger to them- selves so long as they use such care and skill, the machinery cannot be called dangerous within the meaning of the Act. The obligation to see that these provisions of the statutes are observed is, as a rule, cast upon the occupier of the factory (c) ; and, therefore, such person would, as a general rule, be the plaintifE's employer, and could be sued both at common law, and under the Employers' Liability Act. The only exception is in the case of tenement factories, where the occupier pays a rent of less than two hundred pounds per annum, in which case the duty before-mentioned is transferred from the occupier to (a) Walsh v. WhiteUy, 21 Q.B.D. 371 ; 67 L.J.Q.B. 586 ; 63 J.P. 38 ; Morgan T. Hutchina, 69 L.J.Q.B. 197 ; 6 T.L.K. 219. (S) 68 & 59 Vict. c. 37, ss. 2 & 4. (c) 41 Vict. c. 16,88. 81 & 82. EMPLOYERS' LIABILITY. 75 the owner (a), who, therefore, and not the occupier, would be the person liable for a breach of such provisions. In that case the employe's right of action would lie against the owner of the factory at common law for the injury sustained by the breach of his statutory duty, and the former's contract of employment with the occupier would only be used for the purpose of proving that the employ^ was lawfully upon the latter's premises as a workman. An action might, in some circumstances, lie against the occupier if the latter became aware of the dangerous state of the machinery and failed to inform the owner of the condition it was in. 2. Superintendence. — Certain restrictions on the employment of children, young persons, and women are imposed by the Factory Acts upon the occupiers of factories ; and a breach of the provisions of the Acts relating thereto would, if damage resulted, render the occupier liable to an action at common law. If the breach were caused by some omission on the part of a superintendent, or by some order given by some person to whose orders a workman was bound to conform and did con- form, a right of action would in all probability arise under the Employers' Liability Act, as it would be the duty of such superintendent, or person aforesaid, to make himself acquainted with the statutory provisions relating to the employment, and an omission on the part of a superintendent, by which an employe was allowed to do work which he was prohibited by statute from doing, and, d fortiori, any order by which he was directed to do any such work, would be respectively negligent omissions or acts on the part of the superintendent, or the person to whose orders or directions the workman was bound to conform. By the provisions of the Factory Acts, the occupier of a factory is not to allow a child (i.e. a person under thirteen years of age, who has obtained a certificate of having attained the fifth standard, or a certificate of having attended school on two (a) 68 & 59 Viot. o. 37, s. 24 (IJ) & (7). 76 WORKMEN'S COMPENSATION AND hundred and fifty occasions per annum after attaining five years of age ; or if he has not obtained one of these certificates, under fourteen years of age (a) ) to clean any part of the machinery in a factory, while any part of it is in motion by the aid of steam, water, or other mechanical power (&) ; or a young person {i.e. a person above thirteen years of age and holding one of the above- mentioned certificates ; or if not, above fourteen years of age, and in any case under the age of eighteen years (c) ) to clean any dangerous parts of the machinery whilst it is in motion with the aid of such power {d). He must not allow a young person or a woman to clean such part of the machinery in a factory as is mill-gearing, while the same is in motion for the purpose of propelling any part of the manufacturing machi- nery (e) ; or a child, young person or woman to work between the fi^ed and traversing parts of any self-acting machine, while the machine is in motion by steam, water or other mechanical power (e). Where the owner or hirer of a machine worked by mechanical power, in connection with which children, young persons and women are employed by him, is not the occupier of the factory, he is to be deemed to be such occupier so far as the children, young persons and women are concerned (/). It is also provided that when the Secretary of State certifies that in his opinion any machinery or process is dangerous to life or limb, special rules are to be enacted and observed {g). Such rules when passed have the force and effect of statutory regulations (A). The definition of the word "factory" is contained in the Factory and Workshop Acts of 1878 and 1895. The material (a) 41 Viot. 0. 16, sa. 26 & 96. (S) 41 Viot. c. 16, s. 9 (1). Fearson v. Belgian Mills Co., 1896, 1 Q.B. 244 ; 65 L.J.M.O. 48 ; 74 L.T. 101; 60 J.P. 151. (c) 41 Viot. c. 16, SB. 26 & 96. (d) 58 & 69 Viot. o. 37, s. 8. («) 41 Vict. 0. 16, B. 9. (/) 41 Viot. 0. 16, a. 99. (g) 64 & 55 Vict. u. 75, d. 8 (1) ; post p. 224. (A) 54 & 56 Viot. o. 76, b. 9. EMPLOYEES' LIABILITY. 77 sections of these Acts, and also the Fourth Schedule to the Act of 1878, are fully set out in Appendix B (a). By the Metalliferous Mines Eegulation Act, 1872, certain general rules are enacted which are to be observed, so far as may be reasonably practicable, in any mine to which the Act applies. They relate to the ventilation, blasting, roadways, signalling, lining and casing of the shafts and fencing of the shafts and machinery, and also contain regulations in respect to the chains, drums and ladders (b). The Coal Mines Regulation Act, 1887, contains similar provisions, and, in addition, certain rules relating to safety lamps, water and bore holes, barometers, timbering and inspection of the mine (c). The owner, agent or manager of the mine can, however, exonerate himself from any breach of such rules by proving that he has taken all reasonable means by publishing, and to the best of his power by enforcing, such rules and regulations to prevent any contravention or non-compliance with the same(<^). These rules are too lengthy and too technical to be treated at length in this book, and the reader is referred for the same to the above-mentioned Acts. Special rules, subject to the approval of the Secretary of State, and when approved by him, having the force of the general rules before-mentioned, in the case of metalliferous mines may, and, in the ease of coal mines, must be enacted and observed (e). The owner, agent or manager of a mine can, however, exonerate himself from any breach thereof, in the same manner as he can for the breach of any of the general rules. It has been held that the doctrine of volenti nonfit injuria (/) is not applicable to a breach of a statutory regulation {g). (a) Post p. 192 et seq. [b] 35 & 36 Vict. o. 77, s. 23. (e) 50 & 51 Vict. c. 58, s. 49. {i) 36 & 36 Vict. c. 77, s. 24 ; 50 & 51 Vict. c. 58, s. 60. («) 35 & 36 Vict. 0. 77, s. 24 ; 50 & 51 Vict. c. 58, s. 61. (/) Fast pp. 104, 106. \g) Baddeley v. Earl Granville, 19 Q.B.D. 423 ; 56 L.J.Q.B. 601 ; 67 L.T. 268 ; 61 J.P. 822. 78 WORKMEN'S COMPENSATION AND CHAPTEE lY. LOBD CAMPBELL'S ACT AND LORD CAMPBELL'S ACT AMENDMENT ACT. By the common law, the wrong inflicted by a person who was guilty of negligence on a person who was injured thereby was a personal wrong, and the action to recover damages therefor was a personal action, and, therefore, if one of the parties thereto died, such action died with such party. If, therefore, the injured person was killed on the spot, or died of his injuries before he had recovered judgment against the person whose negligence was the cause of his injury, neither his legal personal representatives or those dependent upon him had any remedy against the person guilty of negligence (a). So, also, if the person guilty of negligence died, the living plaintiff lost his right of action {b). So far as defendants are concerned, the law is still the same, and the death of the defendant defeats the plantiff's right ; but by Lord Campbell's Act (c) and the statute amending the same (d), a right has been given to certain relatives of persons who have been killed by reason of the negligence of others, which enables such relatives to recover from the guilty person compensation for the loss they have sustained by reason of the death of such injured person ; provided that at the time of, or rather, just before the latter's death, he had a good cause of action against the guilty person. (o) Osborne v. Gillelt, L.E. 8 Ex. 88 ; 42 L.J. Ex. 63. (J) Kirk V. Todd, 21 Cli. D. 484 ; TUttips v. Somfray, 24 Ch. D. 439 ; GilUtt V. Fairbank, 3 T.L.R. 618. (o) 9 & 10 Vict. c. 93. (d) 27 & 28 Vict. c. 95. EMPLOYERS' LIABILITY. 79 By the first section of Lord Campbell's Act (a) it is enacted that whensoever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death bad not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in 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 party injured, and although the death shall have been caused under such circumstances as amount, in law, to felony. By the second section it is further enacted that every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused, and shall be brought in the name of the executor or administrator of the person deceased ; and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom, and for whose benefit, such action shall be brought ; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the above-mentioned parties in such shares as the jury, by their verdict, shall find and direct. The word " person " applies to bodies, politic and corporate ; the word " parent " includes father, mother, grandfather, grandmother, stepfather and stepmother ; and the word " child " includes son, daughter, grandson, granddaughter, stepson and stepdaughter {b). It has been decided that a child en ventre sa mere has a right to have its claims, under Lord Campbell's Act, protected, and, when born, is entitled to receive compensation under that statute (c) ; an illegitimate child, however, is not a child within the meaning of the Act (rf). (a) 9 & 10 Vict. c. 93, ri. 1. (h) 9 & 10 Vict. c. 93, s. 5. (c) The " George and Siehard," L.E. 3 A. & E. 466; 24 L.T.- 717. (d) Dickenson v. The N.E.E. Co., 2 H. & 0. 735 ; 33 L.J. Ex. 91 ; 9 L.T. 299 ; 12 W.E. 52. 80 WORKMEN'S COMPENSATION AND The right given by the statute is a statutory right of action to recover damages for the pecuniary loss sustained Toy reason of the death of the deceased person, when such death occurred by reason of injuries caused to him by the wrongful act, neglect, or default of the defendant, for which injuries the deceased person would, at the time of the commencement of the action under Lord Campbell's Act, have been entitled to recover compensation if he had remained alive {a). It will be remembered that the Employers' Liability Act, in the case of the death of an injured " workman," gives to his legal personal representatives, and any persons entitled in case of death, the same right of compensation and remedies against the employer as if the workman had not been a workman, nor in the service of the employer, nor engaged in his work (6). The right, therefore, which is given by the statute not only enables the relatives entitled, or the legal personal repre- sentatives, to sue at common law, if the deceased person had any right of action thereunder, but also enables them to sue under the Employers' Liability Act, if the deceased person had died under such circumstances as to bring the case within the provisions of that statute. The plaintiff must, therefore, prove, in the first place, that the deceased person, if he had lived, would have had a right of action against the defendant ; and secondly, that he, or the persons for whose benefit he sues, have sustained damage by reason of the death of the deceased person. Every defence which would have been open to the defendant in an action which might have been brought by the deceased person if he had remained alive, is, therefore, available against his legal personal representative, or the other persons entitled. Thus, in the case of Sail/ v. The Royal Mail Steam Packet Company, one Schwind, who was a passenger on board one (a) Seward v. The " Vera Crm," 10 App. Ca. 59 ; 54 L.J. P. 9 ; 52 L.T. 474 ; 5 Asp. M.O. 386. Pijm v. G.N.R. Co., 4 B. & S. 396 ; 32 L.J.Q.B. 377 ; 10 Jur. N.S. 199 ; 11 W.K. 922. (i) 43 & 44 Vict. c. 42, s. 1. EMPLOYERS' LIABILITY. 81 of the defendants' ships, was drowned by reason of the negligence of some of the defendants' servants, who were on board of her. Schwind, however, in the contract by which he had become such passenger, had agreed that the defendants were not to be liable for the negligence of such of their servants as, in fact, were in default ; and, therefore, as Schwind, if he had lived, could not have sued the defendants to recover damages caused by the negligence of their servants, it was decided that his representatives could not recover (a). So where the deceased man had contracted, both for himself and any person entitled in case of his death, not to claim any compensation under the Employers' Liability Act, 1880, it was decided that his widow could not maintain an action to recover damages for the injury resulting from his death, which occurred under circumstances which would have given him a right to sue under the Employers' Liability Act ; as the deceased man had, by his contract, deprived himself of any right to sue under the provisions of that statute (6) . So, also, in the case of Senior v. Ward, where it was proved that the deceased man had been guilty of negligence, con- tributing to the accident which caused his death, and, therefore, could not have recovered damages against the defendants, it was held that the personal representatives of the deceased, or other persons entitled, had no cause of action against the defendants (c) ; and where the deceased man had been injured, but did not die immediately of his injuries, and before his death accepted from the defendants a sum of money in full discharge of all his claims against them, it was decided that, as his right of action had been extinguished by him during his lifetime, the action was not maintainable by his widow {d). This last case has, by some writers, been regarded as a decision that the right given by Lord Campbell's Act and (a) 52L.J.Q.B. 640;49L.T. 802. (b) Griffith V. Earl of Dudley, 9 Q.B.D. 357 ; 51 L.J.Q.B. 543 ; 47 L.T. 10 ; 46 J.P. 711; 30 W.E. 797. (c) 1 El. & El. 385 ; 28 L.J.Q.B. 139 ; 5 Jur. N.S. 172 ; 7 W.E. 261. (i) Heady. G.E.R. Co., L.R. 3 Q.B. 565 ; 9 B. & S. 714; 37 L.J.Q.B. 278. 6 82 WOBKMBN'S COMPENSATION AND the amending statute is not a new cause of action, but if it is carefuUy examined, it wiU be seen that all that the judgments of Blackburn and Lush, JJ., amount to is, that the action is not new in the sense that there is an independent cause of action vested in the representatives of the deceased, ©r other persons entitled in their own right ; but that the Act only gives a right of action (which is a new right of action) where the deceased person had not obtained compensation in his lifetime, when he had a right to compensation at his death. They also decide that the second section of the Act alone gives no fresh cause of action. The remarks of Lord Selborne, in the House of Lords, in the case of Seward v. The Oivners of the " Vera Cruz" make it clear that the right of action is a new cause of action given by the statute (a). When it has been made out by the plaintiff that the deceased person had, just before his death, a subsisting cause of a,ction, which, if he had not died, would have entitled him to maintain an action, he has further to prove that he, or the persons for whose benefit he is suing, have suffered damage by reason of the death of the deceased ; for, by the second section of the Act, the compensation is to be given for the injury resulting to such persons from the death of the deceased person. The damages in question are for the injury resulting from the death, and the injm-y must be a pecuniary one (6), and, therefore, mental sufferings caused by grief or loss of society {b) and funeral and mourning expenses (c) are not to be considered as elements of damage, nor will merely nominal damages be sufficient to support an action [d). The plaintiff must show that actual pecuniary damage has resulted to the persons for whose benefit the action is brought (e), but to do this it is not (a) 10 App. Ca. 69. (b) BUke V. M.U. Co., 18 Q.B. 93 ; 21 L.J.Q.B. 233 ; 16 Jur. 562. (c) Hdlton ^.S.B.E.Co.,i: C.B.N.S. 296; 27 L.J.C.P. 227 ; i Jnr. N.S. 711. Bmilter v. Webster, 11 L.T. 598; 13 W.E. 289. (d) Boulter v. Webster, supra. (e) Duckworth v. Johnson, 4 H. & N. 653 ; 29 L.J. Ex. 26 ; 5 Jur. N.S. 630 ; Blake v. M.R. Co., supra. EMPLOYERS' LIABILITY. 83 necessary to show that actual benefit has been received (a) ; and a reasonable expectation of a pecuniary advantage to be derived by such persons from the deceased person, is evidence of a pecuniary loss resulting from the death of the deceased {b). A reasonable expectation of pecuniary benefit, taking into consideration all the circumstances of the case, is suiScient to support the action ; and it is not necessary to prove that there has been the loss of a legal right to such benefit (a) ; and damages for the loss of advantages upon which a pecuniary value can be placed, such as education, or the comforts and conveniences of life, are not too remote to support the action (c). The pecuniary benefit which is lost must arise owing to the family relationship between the persons for whose benefit the action is brought and the deceased person : thus, where a father employed the deceased, who was his son, at a brickfield at the wages of a skilled workman, and the latter assisted in the management thereof, so that his death crippled his father's business to a considerable extent, it was decided that the action was not maintainable, as the damage sustained by the father resulted from the loss of the services of the deceased person as a servant, and not as a son. It is to be presumed that the wages were a fair equivalent for the son's services (f^). Comparatively slight evidence of the loss of a reasonable expectation of pecuniary benefit is sufficient to support the action. Thus, where the plaintiff was an old man employed as light porter at St. Thomas' Hospital, at the wages of three shillings and sixpence per week, with house-room at the lodge, and had a son, the deceased person, who earned twenty-three shUKngs a week, and helped his father to a certain extent in his work at the hospital, but did not assist him pecuniarily, the father not needing such help ; it was decided that the father had lost such reasonable expectation of pecuniary benefit as (a) Frmhlin v. S.E.M. Co., 3 H. & N. 211 ; 4 Jur. N.S. 566. (b) Dalton v. S.E.R. Co., supra. Duckworth v. Johnson, supra. (c) Tym V. O.N.R. Co., 4 B. & S. 396 ; 31 L.J.Q.B. 377 ; 10 Jur. N.S. 199 ; 11 "W.E. 922. {A) Sylcea v. N.E.B. Co., 44 L.J.C.P. 191 ; 32 L.T. 199 ; 23 W.R. 473. 6a 84 WORKMEN'S COMPENSATION AND would support the action (a). So, also, where the plaintiff, who was a working mason, lost a son who was earning four shillings a week, and who paid it into the family purse, the action was held to be maintainable (h) ; but it wiU be observed that no evidence was given to show what was the cost of the boy's keep. If the plaintiflE had been cross-examined on this point, it is very doubtful whether he could have shown that he had sustained any pecuniary loss ; but, in the absence of such evidence, there remained the admitted fact, that the plaintiff, had benefited by his son's life to the extent of four shillings per week. Where the plaintiff was an elderly man, nearly blind and partially crippled, and his son had helped him six years before the latter's death, the action was held to be maintainable, as there was a loss of a reasonable expectation of pecuniary benefit (c). But where a widow was, at the time of her husband's death, living in adultery with another man, but was yet on friendly terms with her husband, who occasionally made her small presents, it was decided that she had not such expectation of pecuniary benefit from him as would support the action {d). The right given to the different relatives of the deceased person by the second section of the Act, is given to them disjunctively : thus, in Pym v. The Great Northern Railway Company, the deceased left an estate of about four thousand pounds per annum, the bulk of which was settled upon his eldest son ; and it was decided that the widow and yoiinger children could sue for the loss they had sustained, although the widow and children of the deceased, taken together, had collectively lost nothing by his death (e). Where the life of the deceased person is insured, and on his death a sum of money becomes payable under the policy to (a) Franklin v. S.B.S. Co., supra. (i) Duckworth v. Johnson, 4 H. & N. 653 ; 29 L.J. Ex. 25 ; 6 Jur. N.S. 630. (c) Betherington v. The N.E.R. Co., 9 CI.B.D. 160 ; 51 L.J.aB. 496 ; 30 W.R. 797. (d) Stimpson v. Wood, 57 L.J.Q.B. 484 ; 59 L.T. 218 ; 52 J.P. 822. (e) JPt/m T. The G.N.R. Co., 4 B. & S. 396 ; 31 L.J.Q.B. 377 ; 10 Jur. N.S. 199 ; 11 W.E. 922. EMPLOYERS' LIABILITY. 85 his widow or children, the jury should not, in estimating the damages, take into consideration the whole of the pecuniary- benefit arising from the payment of the money under such policy, but should take into their consideration the pecuniary benefit which accrued to the plaintiffs from the accelerated receipt of such money, and in such case the extent of the benefit might be fairly taken to be represented by the use or interest of the money during the period of acceleration {a). Where the plaintiff has lost an annuity by the death of the deceased person, all the circumstances of the annuitant and the grantor of the annuity are to be considered, i.e., the state of health of the plaintiff is to be considered an element in considering the duration of his life, and also the probability of the deceased person having been able to continue to pay the annuity, and generally all the circumstances of the case {b). The action must be brought in the name of the executor or administrator of the deceased person (c) ; but if there is no such administrator or executor, or if there is, and no action is brought within six calendar months after the death of the deceased person, then it may be brought in the names or name of all or any of the persons, if more than one, for whose benefit such action would have been brought, if it had been commenced in the name of such executor or administrator [d). Only one action and no more is maintainable in respect of the same subject matter of complaint (e), which is the injury resulting from the death of the deceased person, caused by the wilful act, neglect or default of another. It is, therefore, apprehended that one action can be brought against A, and if, in the course of the proceedings, it is ascertained that A was guiltless of negligence, but that B was the author of the negligence which caused the death, another action can be (a) Grimd Trunk Railway of Ca/nada v. Jennings, 13 App. Oa. 800 ; 58 L.J.P.C. 1. Bradhurn v. G. W.R. Co., L.R. 10 Ex. 1 ; 44 L.J. Ex. 9 ; 23 W.E. 48. (J) Rowley v. L. % S. W.R. Co., L.E. 8 Ex. 221 ; 42 L.J. Ex. 153 ; 29 L.T. 180 ; 21 W.R. 869. («) 9 & 10 Vict. 0. 93, s. 2. (i) 27 & 28 Vict. 0. 95, s. 1. («) 9 & 10 Vict. c. 93, s. 3. 86 WORKMEN'S COMPENSATION AND commenoed against B, as the first action was brouglit for a different subject matter of complaint, i.e., tlie damage resulting from the death caused by A's negligence, and this even if judgment has been given in favour of A. There has, however, been no decision upon this point. The action must be commenced within twelve calendar months from the occurrence of the death of the deceased person {a) ; and if the defendant intends to rely upon the fact that the action has been commenced after the expiration of that period, it must be pleaded, if the action is tried in the High Court {h) ; or if tried in the County Court, a notice of special defence must be filed (c). The only peculiarity in the procedure in an action under this Act is that the plaintiffi is required, together with his declaration, to deliver 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 the damages shall be sought to be recovered {d). This provision is haxdly necessary under the present rules of pleading, but the usual practice is to state as briefly as possible in the statement of claim that the plaintiff sues to recover damages resulting from the death of the deceased person, caused by the negligence of the defendant ; and then to set out in the particular under the Act, the material facts upon which the plaintiff relies, including those which are prescribed by the full particular under the statute (e). The defendant is entitled to pay into Court a lump sum to answer his entire liability to all the persons for whose benefit the action is brought, without apportioning any particular sum to any one of such persons. If the total amount of all the damages awarded is less than, or equal to, the sum paid into Court, the defendant is entitled to the verdict on that (a) 9 & 10 Vict. c. 93, s. 3. (b) E.S.C. 0. XIX. i. 15. (c) C.C.K. 0. X. r. 14a. (d) 9 & 10 Vict. u. 93, o. 4. (e) See also at p. 111. EMPLOYEES' LIABILITY. 87 issue (a) and would, of course, get his costs thereof, and the general costs of the action. After a verdict for the total amount of the damages due to all the persons for whose benefit the action has been brought has been obtained, such total amount, after deducting therefrom the costs not recovered from the defendant, is to be divided by the jury among the parties for whose benefit the action has been brought. This provision may occasion some difficulty, as it may happen that the action has been tried before a judge sitting without a jury. It is apprehended, however, that although probably neither of the parties of the action can be compelled to go to trial before any tribunal, other than a judge and jury, yet this right is one which may be waived by the parties. If, therefore, neither party takes the necessary steps to obtain a trial with a jury, it may be assumed that each party consents to have the case tried before the judge sitting alone ; and if one of the parties repents at the last moment, and demands a jury, although probably the judge would allow the adjournment necessary in order that a jury may be summoned, yet there appears no reason why, in ordinary circumstances, the judge should not make it a condition that the party so demanding a jury should pay the costs thrown away, and this, it is submitted, would be the proper order to be made. If once the case is tried and judgment is given for the total amount of the damages, it is apprehended that the judge who tried the case would have jurisdiction to distribute it among the persons for whose benefit the action is brought. In the case of Bulmer v. Bulmer {b) it was decided that when the defendant had compromised with the executors of the deceased person, before action brought, a claim which they might have made in an action under Lord Campbell's Act, and had paid into Court to the credit of the above-mentioned action (which was brought to obtain a declaration as to how such shares (a) 27 & 28 Vict. c. 95, b. 2. (4 25 Ch. D. 409 ; 53 L.J. Ch. 402 ; 32 W.R. 380. 88 WORKMEN'S COMPENSATION AND should be apportioned) the sum agreed upon, the judge, to •whom the action was assigned, had power under the general jurisdiction of the Court to distribute such sum amongst the persons entitled under the statute. It was also decided that such distribution must be made on the same principles as those upon which a jury should act. The defendant appears to run no danger in acquiescing in such a distribution, and it is obviously convenient to the persons entitled under the statute, that they should be able to have the amounts of their shares ascertained for them, without the trouble, uncertainty, and expense of going before a jury. It is, therefore, most probable that the jurisdiction exercised in this case will never be disputed. Assuming, therefore, that this power exists in a judge of the High Court, as decided in Bulmer v. Bulmer, it is clear that the judge who tries the case would, when the damages awarded are paid into Court, have power to distribute the fund. It would appear, therefore, that the payment into Court would merely be an empty form, and that the more direct course may be safely adopted, i.e., that the judge who tries the case may make an order at the trial, that the different shares of the total amount awarded should be paid direct to the persons to whom the judge apportions them, or be invested for their benefit respectively. In actions in the County Court, the damages awarded to the plaintiff are always paid into Court, and in such case it is apprehended that the County Court judge would have the same power to distribute the amount awarded as is possessed by a judge of the High Court, up to the limit of the equitable jurisdiction of the Court, i.e., five hundred pounds {a) ; and it is extremely improbable that any sum awarded in a County Court action to any one group of relations will exceed that limit. There is, however, so far as the writer is aware, no reported case upon the subject, and only once in his experience has the (a) County Courte Act, 1888, o. 67. EMPLOYERS' LIABILITY. 89 point ever arisen. The objection was pointed out by the Eegistrar of the Court just before the hearing, but the counsel on both sides agreed not to raise any objection, as both were desirous that the case should be heard before the judge alone, and the writer was of opinion that the defendants could not be prejudiced by such a course being pursued. The question, however, never actually arose, as the judge decided in favour of the defendants. It is submitted, therefore, that, if neither party objects, the action can be tried before a judge sitting without a jury, and that where it has been so tried, and the amount of the damages ascertained, the judge who tried the case has power to distribute the sum awarded among the persons for whose benefit the action is brought. These statutes have no application to proceedings under the Workmen's Compensation Act, 1897, which statute contains provisions dealing with claims made thereunder by persons who were dependent, or partially dependent, as defined by the Act ifl), upon the deceased person. It also deals with claims advanced by such dependants not only against the employer of the deceased workman, but against such employer's executors or administrators (5). Lord Campbell's Act may be cited as " The Fatal Accidents Act, 1846 " (c). (a) W.C.A., tf. 7 (2). (h) W.CA., 8. 7 (2). (c) 69 & 60 Vict. c. 14. 90 WORKMEN'S COMPENSATION AND CHAPTEE V. NEGLIGENCE, CONTRIBUTORY NEGLIGENCE, VOLENTI NON FIT INJURIA. Negligence. In the previous chapters of this hook the various rights of the servant to recover, damages for personal injury from his employer have heen considered. It now remains to discuss the question, not only from the point of view of the plaintiff, but also from that of the defendant. It has been seen that in order to succeed the plaintiff must prove negligence, at common law, on the part of his employer, and under the Employers' Liability Act on the part of his employer or of those for whom under that statute his employer is responsible. He must also prove that the negligence in question was the direct cause of the injury. In order to answer the first enquiry, whether the defendant has been guilty of negligence, the first step to be taken is to consider what is the duty towards the servant which it is alleged the master has broken — for the ideas of negligence and duty are strictly coiTelative, 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 somebody. This duty is not an abstract obligation, but is a duty towards particular people ; and it is obvious that this duty must vary with the individual and with the circumstances of the case (a). The doctrine known at law as that of common employment has already been discussed (5), and the result of its application («) Thomas v. Quartermame, per Bowen, L.J., 18 Q.B.D., at p. 694. (i) Ante p. 5 et seq. EMPLOYERS' LIABILITY. 91 is to render it much more difficult for a servant than for a stranger to prove negKgence against his employer, because in the case of the servant the duty owing to him from his employer is so much narrower. It will he remembered that, at common law, in the absence of express stipulation, the law presumes that the servant, by his contract of employment, agrees to take upon himself the ordinary risks of his work, and that one of such risks is the danger of being injured by the negligence of other persons in his master's service, whose work affects him, or, as Bramwell, L.J., said in Swainson v. The N.E.R. Co. (a), he has not stipu- lated for a right of action if he sustains damage from the negligence of a fellow-servant. It follows, therefore, that although a stranger might give evidence of negligence against the defendant by showing the existence of circumstances which were only consistent with negligence on the part of the defendant or his servants, yet such evidence, if adduced by a servant against his master, would not be evidence of negligence against the latter, as in such case the guilty person might have been a fellow-servant of the plaintiff, and negligence on his part, therefore, would not constitute a breach of duty on the part of the defendant (S). For these reasons the cases which are usually quoted as examples of cases where there was evidence of negligence at common law have no application to an action by a servant against a master. These oases rely upon the doctrine known as " res ipsa loquitur," i.e., that from the fact of an accident happening under certain circumstances the inference that negligence existed ought to be drawn. Thus, in the well-known case of Scott V. The London and St. Katharine Docks Go.{c), where certain bags of sugar which were being lowered by a crane upon the defendants' premises, fell on the plaintiff, who was lawfully walking on such premises, and caused him injury, it (a) 3 Ex. D. 341 ; 47 L.J. Ex. 372 ; 38 L.T. 201. (*) Allen V. The New Gas Co., 1 Ex. D. 251 ; 45 L.J. Ex. 668 ; 34 L.T. 641. (c) 3 H, & 0. bn ; 34 L.J. Ex! 220 ; 13 L.T. 148. 92 WORKMEN'S COMPENSATION AND was decided that the inference to be drawn from the accident was that neghgence existed on the part of the defendants or their servants. In that case Erie, C.J., says: — "When the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care." If, however, in this case the plaintiff had been a fellow- servant with those engaged on the operation in question, the above facts would not have constituted evidence of negligence, as the accident would have been consistent with negligence either on the part of the defendants, if a company can be negligent, or on the part of the plaintiff's fellow-servants. The doctrine of " res ipsa loquitur " will, therefore, in ordinary circumstances be of little use to the plaintiff at common law, unless he can show that a reasonable man in the position of the defendant would have personally exercised such care as would have prevented the accident. It will usually be extremely difficult for the plaintiff to carry his case so far, and practically impossible when the employer is a corporation aggregate or a limited company. The partners of a firm will, however, each be liable for their co-partners' negligence (a). It is true that a negligent system of work would give rise to a cause of action, if an accident happened thereby, and if the employer was responsible for such system ; but in most large businesses such a system would probably be entirely under the control or management of some head of a department in the defendants' service, and, therefore, the doc- trine of common employment would apply (6). Practically, therefore, the only way in which a servant can give evidence of negligence against his master at common law, (a) 53 & 64 Vict. c. 39, a. 12. (J) Conway v. The Belfast and North. Counties Rail. Co., 11 Ir. E.C L 345 • Hedley v. Pinhney ^ Sons, 1894, A.C. 222 ; 63 L.J.Q.B. 419 ; 70 L.T 630 ■ 42 W.E. 497. EMPLOYERS' LIABILITY. 93 except where the master takes a personal part in the operation which causes the injury {a), is by showing that the employer is subject to some statutory duty which he has disregarded. This cause of action has already been dealt with at length in the previous chapter (J). In an action brought under the Employers' Liability Act the task of the workman is much easier. He has only to prove a state of circumstances from which negligence should be inferred on the part of his employer, or of those for whom his employer is responsible under the provisions of that statutie, and in such case the doctrine of " res ipsa loquitur " can be invoked. Thus, if the plaintiff proves that he was working at the time of the accident at a machine which was in a defective condition because it had been allowed to get out of repair, the presumption would arise that it had got into such a condition through the negligence of the defendant, or of the person entrusted by him with the duty of seeing that the machinery was in proper condition. It is not, however, possible, nor would it be of any practical use, to give an exact definition of negligence, as it has already been pointed out that negligence is a breach 'of duty, and its nature, therefore, is dependent upon the nature of the duty. The definitions which have been attempted do not afford much assistance to those who have to decide whether negligence exists. It has been defined as the omission to do something which a reasonable man would do, or the doing something which a reasonable man would not do under all the circum- stances (c), or, more shortly, the absence of reasonable care according to the circumstances {d). What is a reasonable man, and what constitutes reasonable care, is within very wide limits left to the tribunal before which the case is tried, but in {a) AihwoHh v. Stmwix, 30 L.J.Q.B. 183 ; 3 El. & El. 701 ; 4 L.T. 85. {}) Ante p. 70. (c) Sh/th V. The Birmingham Waterworks Co., 11 Ex. 781 ; 25 L.J. Ex. 212 ; 2 Jur. N.S. 333. {fl) Vaughm y. The Taff Vale Bail. Co., 5 H. & N. 679 ; 29 L.J. Ex. 247 ; 2 L.T. 394. 94 WORKMEN'S COMPENSATION AND Appendix A {a) will be found numerous examples of what is, and what is not, evidence of negligence under the Employers' Liability Act. It may, however, be useful to summarise the duty of the employer towards his servant under the following headings : — 1. At common law. — It is the duty of the master, apart from special circumstances, to use reasonable care to see that any machinery or tools he supplies to his servant are reasonably fit and proper for the purpose for which they are used ; to use reasonable care in what he does himself; and to select com- petent persons both to superintend operations and to carry on the work (5). 2. Under various statutes. — It is his duty to see that the various measures (fencing, etc.) prescribed by those statutes, or the rules made in pursuance of their authority, are properly carried out (c). 3. Under the Employers'' Liability Act. — It is his duty towards any " workman " within the meaning of the Act to take reason- able care to see that his ways, works, machinery or plant are in proper condition, and that any person he may appoint to do so in his place uses reasonable care and skill in so doing. He must also see that due care and skill are exercised by the following persons : — (a) Any person entrusted with the duty of superin- tendence whilst in the exercise thereof. (b) Any person to whose orders the workman is bound to conform whilst the latter is conforming to such orders. (c) Any person in charge or control of any signal points, locomotive engine or train upon a railway. (a) Post p. 163. (J) Wilson T. Merry, L^E. 1 H.L. Sc. 326. (c) Chapter III., ante p. 70. EMPLOYERS' LIABILITY. 95 He must also use ordinary care and skill in framing his rules or bye-laws and in giving particular instructions. What is reasonable care and skUl will depend upon the circumstances of each case. The breach of any of the above-mentioned duties, either statutory or contractual, if such breach is the direct cause of the accident, will give a servant a right of action. Contributory Negligence. Negligence on the part of the servant which contributes to the accident is subject to the same considerations as negligence on the part of his master. It is, as a rule, the servant's duty to exercise reasonable care and skUI in his work, and, therefore, a want of such care constitutes negligence on his part. The mere fact, however, that a workman continues to work after knowing that such work has become dangerous owing to some default on his master's part, is not necessarily negligence upon the part of the servant, for it may be a reasonable course of conduct to pursue and he may use extra precautions in conse- quence {a) ; and where the master has established an improper system of work it is not negligence on the part of the servant if he continues to work at it (ft). If a man is put in a dangerous position by the fault of the defendant, the former is not bound to adopt the best possible course to extricate himself from such a position, but allowance must be made for the sudden character of the danger and the difficulty in deciding on the best course to pursue in a sudden emergency. The age of the plaintiff may also be a material element in the case : not so much care is to be expected from a child as from an adult (c). (a) Weblin v. Ballard, 17 Q.B.D. 122 ; 56 L.J.Q.B. 395 ; 64 L.T. 632 ; 50 J.P. 597. Thomas t. Quartermame, 18 Q.B.D. 685 ; 56 L.J.aB. 340 ; 57 L.T. 537 ; 61 J.P. 516. Yarmouth v. France, 19 Q.B.D. 647 ; 57 L J.Q.B. 7 ; 36 W.R. 281. (*) Smith v. Baker, 1891, A.C. 326; 60 L.J.Q.B. 683; 65 L.T. 467; 51 J.P. 660. (c) Zyneh t. Mirdin, 4 P. & D. 672 ; 1 Q.B. 29 ; 5 Jnr. 797 ; Crocker v. Banks, i T.L.R. 324. 96 WORKMEN'S COMPENSATION AND When the plaintiff has proved negligence on the part of his employer at common law, or on the part either of his employer or those for whom his employer is responsible under the Employers' Liability Act, he has to prove that the negligence in question has been the proximate cause of the accident, for contributory negKgence in a plaintifiE only means that he him- self has contributed to the accident in such a sense as to render the defendant's breach of duty no longer its proximate cause (a). If the negligence on the part of the master be a breach of his statutory duty, the defence of contributory negligence, resting as it does upon the contention that the injury was not caused solely as between the plaintiff and defendant by such breach of duty, is open to the defendant (b). There has been some question as to the party upon whom the burden of proof lies when this defence is set up. In the case of Davey v. The London and South Western Railway Co. (c), the plaintiff was able to give in evidence certain facts which, in the eyes of the Court of Appeal, constituted evidence of negli- gence on the part of the defendants; but his evidence also disclosed facts upon which the Court of Appeal considered that negligence on his part contributing to the accident ought necessarily to be inferred. The jury, as is not unusual in such cases, found that no contributory negligence existed, but the Court of Appeal entered judgment for the defendants. In giving his judgment in that case Lord Bsher, M.E., says as follows: — " Now in such an action as this the burden of proof lies entirely upon the plaintiff. There are two things for him to establish, one is affirmative, the other negative. It is for the plaintiff to show that the accident which happened to him was caused by a negligent act of the defendants, or of those for whose negligent acts the defendants are liable, and that the accident was produced as between him and the defendants (a) Thomas v. Quartermaine, per Bowen, L.J., 18 Q.B.D., at p. 694 Martin v Connah's Quay Alkali Co., 33 W.R. 216. (6) Caswell y. Worth, 5 E. & B. 849; 25 L.J.Q.B. 121. Senior y. Ward 1 El &E1. 386; 28L.J.Q.B. 139; 7 W.E. 261. ' (c) 12 Q.B.D. 70 ; 53 L.J.Q.B. 58. EMPLOYERS' LIABILITY. 97 solely by the defendants' negligence in this sense: that he himself was not guilty of any negligence which contributed to the accident, because even though the defendants were guilty of negligence which contributed to the accident, yet if the plaintiff also was guilty of negligence which contributed to the accident, so that the accident was the result of the joint negli- gence of the plaintiff and the defendants, then the plaintiff cannot recover, it being understood that, if the defendants' servants could by reasonable care have avoided injuring the plaintiff, although he was negligent, then the negligence of the plaintiff would not contribute to the accident." (a) The statement of Lord Esher that it lay upon the plaintiff to establish that the accident was produced, as between himself and the defendants, solely by the latter's negligence, so thait he himself was not guilty of contributory negligence, has been the subject of some criticism in the case of Wakelin v. The London and South Western Railway Co. (b), which action was brought by the widow of a man who was found upon a level crossing on the defendants' railway in such circumstances as to leave no doubt that he was killed by a passing train. In delivering judgment in that case, Lord Halsbury, L.O., says as follows : — " My Lords, it is incumbent upon the plaintiff in this case to establish by proof that her hus- band's death has been caused by some negligence of the defendants, some negligent act, or some negligent omission, to which the injury complained of — in this case the death of the husband — is attributable. This is the fact to be proved. If that fact is not proved the plaintiff fails, and if, in the absence of direct proof, the circumstances which are established are equally consistent with the allegation of the plaintiff as with the denial of the defendants, the plaintiff fails for the very simple reason that the plaintiff is bound to establish the aflSrmative of the proposition, ' M qui affirmat non ei qui negat incumbit probatio.' I am not certain that it will not («) 12 Q.B.D., at p. 71. (*) 12 App. Ga. 41 ; 56 L.J.Q.B. 229; 55 L.T. 709; 51 J.P. 404. 98 WOEKMEN'S COMPENSATION AND be found that the question of onus of proof, and of what onus of proof the plaintiff undertook, in which the Court of Appeal has dealt so much at large, is not rather a question of subtlety of language than a question of law. "If the simple proposition with which I started is accurate, it is manifest that the plaintiff, who gives evidence of a state of facts which is equally consistent with the wrong of which she complains having been caused by — ^in this sense that it could not have occurred without — her husband's own negligence as by the negligence of the defendants, does not prove that it was caused by the defendants' negligence. She may, indeed, establish that the event has occurred through the joint negli- gence of both, but if that is the state of the evidence the plaintiff fails, because ' m pari delicto potior est conditio de- fendentis.' It is true that the onus of proof may shift from time to time as a matter of evidence, but stiU the question must ultimately arise whether the person who is bound to prove the affirmative of the issue, i.e., in this case the negligent act done, has discharged herself of that burden. I am of opinion that the plaintiff does not do this unless she proves that the defendants have caused the injury in the sense I have ex- plained. " (ffi) In the same case Lord Watson says, indeed, that con- tributory negligence is substantially a matter of defence, but adds that the plaintiff may have to submit to the inconvenience of having his adversary's defence proved by his own witnesses, and Lord MtzGrerald agrees with Lord Watson's view, and states that the difficulty in most cases will be found to be a contest of words only [b). It is submitted that there is no real inconsistency between the two views thus put forward. The learned judges in the House of Lords are discussing the question from the point of view in which it was presented by the case before them. In Wakelin v. The London and South Western Raihcay Co., the (a) 12 App. Ca., at p. 44. (h) 12 App. Ca., at pp. 48 & 61. EMPLOYERS' LIABILITY. 99 plaintiff had given evidence which was consistent with the accident having been caused (1) by the defendants' negligence, (2) by that of the deceased man, and (3) by the joint negli- gence of both ; and, therefore, the parties to the action were practically in the same position as they were before the case was tried, i.e., the burden of proof had in no way been shifted. It is submitted that it is quite clear that before any evidence is given the burden of proving negligence on the ^art of the defendants lies upon the plaintiff, and that of proving con- tributory negligence upon the defendant; but, on the other hand, when the evidence on the part of the plaintiff has been given it is submitted that the case must be regarded in a different Kght. It is obvious that the burden of proof in a case often shifts as the case proceeds : at the commencement the burden lies upon the plaintiff to prove that the defendant has been guilty of negligence causing the injury. He proves facts from which this may be inferred, and the burden will then lie upon the defendant to prove contributory negligence ; but if the plaintiff, in continuing his evidence, goes on to prove further facts wmch, taken in connection with the first part of his evidence, show that the accident was caused, at any rate, partially by his own negligence, and not solely as between himself and the defendant by the negligence of the latter, then the defendant is entitled to avail himself of such evidence in order to dis- charge from hiinself the burden of proof which the first part of the plaintiff's evidence had cast upon him {a). It is in relation to this latter state of circumstances that Lord Esher, M.E., is speaking in the case of Davey v. The London and South Western Railway Co. The plaintiff had proved negli- gence on the part of the defendants, and if he could have stopped there he would have been, in the absence of evidence on the part of the defendants, entitled to succeed, but, unfor- tunately for himself, he did not stop there, but went on, or was («) Wakelin v. J. and S. W.R. Co., per Lord Watson, 12 App. Ca., at p. 48. 7a 100 WORKMEN'S COMPENSATION AND compeUed to go on, to prove that he himself had been guilty of contributory negligence. He, therefore, faned in his action. It is submitted, therefore, that Lord Bsher's remarks, taken in connection with the facts of the case on wHch he was speak- ing, were sound in law. The proposition may, perhaps, be stated in the following manner : that the plaintiff, in order to be entitled to have his case laid before the jury, must prove the existence of facts from which the proper inference to be drawn is that the defendant has been guilty of negligence, and from which it is not necessarily to be inferred that the plaintiff has been guilty of contributory negligence. By the Employers' Liability Act it is provided that 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, unless he was aware that the employer or such superior already knew of the said defect or negligence, the workman should not be entitled under the Act to any compensation or remedy against his employer (a). This proviso has already been dealt with in Chapter II. (6). Volenti lion fit Injuria. The doctrine known by the designation of " Volenti nan fit injuria " has, in late years, been very much discussed, and an attempt has been made to extend it beyond the limits within which it ought properly to be confined. This doctrine is founded upon the broad principle that when a man voluntarily engages to do work in which there are certain known and apparent risks, it is to be presumed that he takes such risks upon himself, and cannot recover com- pensation from his master if he is injured thereby. (a) 43 & 44 Vict. u. 42, s. 2 (3). (*) Ante^^. 41, 42. EMPLOYEES' LIABILITY. It has lately been attempted to extend the doctrine Vj^ further, and to make it embrace cases where the workmen knew of a danger attaching to the work, which danger was caused by some negligent act or default of the master, or of a person for whom the master is answerable, and, with this knowledge, continued at his work. The late case of Smith v. Baker (a), a decision of the House of Lords, is, however, conclusive that such an extension of the doctrine cannot, except, perhaps, in very exceptional circum- stances, be supported. In giving judgment in that case, Lord Halsbury, L.O., lays it down " that, in order to defeat a plaintiff's right by the application of the maxim, who would otherwise be entitled to recover, the circumstances should be such that it ought to be inferred therefrom that the plaintiff consented to the particular thing being done which would involve the risk, and consented to take such risk upon him- self." (b) It is clear that, except under very exoeption'al circumstances, no plaintifE ever does give such a consent in any case where the circumstance which causes the danger did not exist before he entered into his contract of employment, but arose in the course of his work through the conduct of his master. It is extremely improbable that a man, fully appreciating the risk, and knowing that it was likely he would be injured, would consent to take the risk upon himself ; and it is, in practice, almost impossible to persuade a jury to take such a view. The mere fact that a servant continues in his employment after knowledge of the danger, is now not conclusive evidence against him (c), as it is possible that he may continue so doing in the belief that, if he were injured, his master would be compelled to compensate him (d). (a) 1891, A.O. 326 ; 60 L.J.Q.B. 683 ; 66 L.T. 467 ; 65 J.P. 660. (J) 1891, A.C., at p. 338. (e) Smith v. Baker, supra. Yarmouth v. France, 19 Q.B.D. 647 ; 67 L.J.Q.B. 7 ; 36 W.R. 281. (d) Yarmouth v. France, supra. 102 WORKMEN'S COMPENSATION AND It is suggested that the true function of this dootrine is not to act as an independent defence, hut to be of service as a means of ascertaining what the terms of the contract of em- ployment, in fact, were at the time of the accident, for, as has been ab-eady pointed out, negligence is a breach of some duty founded on the contract of employment between the master and the servant. In the case of Thomas v. Quartermaine (a), the late Lord Bowen, then a Lord Justice of Appeal, delivered an elaborate judgment, in which he carefully examined the subject. In that case a vat on the defendant's premises was allowed to remain unfenced, and the County Court judge held that its condition was thus defective, owing to the defendant's negligence. He also found that there was no contributory negligence on the part of the plaintiff, but that the latter was aware of the con- dition of the vat. The plaintiff fell into the vat by reason of its unfenced condition, and was thereby injured. Bowen, L.J., after pointing out that, by the contract of employment, the servant was deemed to have taken upon himself the ordinary risks of a business lawfully carried on upon his master's premises, and that it has been assumed, as an a fortiori case, that he took upon himself such risks as were visible and known, proceeds as follows {b) : — " This is one way of putting such a defence, and may, in many cases, be sufficient ; but there is another way of stating it, and another principle wholly independent of contract in which a similar defence arises. The law is full of instances where duties assume a double aspect, and may be viewed concurrently, as arisiag by implication out of a contract, or as created by some wider principle of law which happens to take effect and to receive apt illustration in the particular instance of some particular contract. It is, in most cases, a barren and metaphysical enquiry to discuss whether such duties are best treated as arising by implication from the contract, or from (a) 18 Q.B.D. 685 ; 66 L.J.Q.B. 340 ; 51 L.T. 637 ; 61 J.P. 616. (*) 18 Q.BD., at p. 698. EMPLOYERS' LIABILITY. 103 the general law outside ; and down to the Employers' Liability Act, 1880, it may have been less important in the case of visible and apparent risks, which explanation of the master's immunity was given. The Employers' Liability Act of 1880 makes precision on this point necessary, and renders it im- portant to remember that, quite apart from the relation of master and servant, and independent altogether of it, one man cannot sue another in respect of a danger or risk, not unlawful in itself, that was visible, apparent, and voluntarily encountered by the injured person. The County Court judge, in the ease now under appeal, while negativing contributory negligence, has found the issue of ' knowledge ' against the plaintiff. In what sense must this finding be read, having regard to the undisputed facts? Knowledge, as we have seen, is not con- clusive where it is consistent with the facts that, from its imperfect character or otherwise, the entire risk, though in one sense known, was not voluntarily encountered ; but here, on the plain facts of the case, knowledge on the plaintiff's part can only mean one thing. For many months the plaintiff, a man full of intelligence, had seen this vat — known all about it — appreciated its danger — elected to continue working near it. It seems to me that legal language has no meaning unless it were held that knowledge such as this amounts to voluntarily incurring of the risk. There was therefore, in my opinion, no evidence of negligence on which the County Court judge could act, and, therefore, the appeal should be dismissed with costs." This case, and the reasoning upon which it is founded, is mentioned with approval, or without dissent, by the judges who decided the case of Smith v. Baker (a), with the exception of Lord Herschell, who says : "If it is assumed that there was a breach of duty on the part of the employer in not having the vats fenced, as it obviously was, since if there had been no breach of duty, it would not have been necessary to enquire whether the maxim, ^Volenti non fit injuria,' afforded a (a) 1891, A.C. S25 ; 60 L.J.Q.B. 683 ; 65 L.T. 467 ; 65 J.P. 660. 104 WORKMEN'S COMPENSATION AND defence. It seems to me that it must have heen a question of fact, and not of law, whether the plaintiff undertook the employment with an appreciation of the risk which arose, on the occasion in question, from the particular nature of the work which he had to perform." It is submitted that Lord Herschell was inaccurate in saying that the question of " Volenti non fit injuria" only arises as a defence when there has actually heen a hreach of duty on the part of the employer. This is certainly inconsistent with Lord Bowen's view as expressed in his judgment in Thomas v. Quartermaine {a), for if the plaintiff is " volens" in doing a dangerous piece of work in a particular way, there is no breach of duty towards him on the part of the employer if he is injured whilst en- gaged upon it. It seems to the writer that the difficulty that the defendants, in the case of Smith v. Baker, were in, was that they could not dispute that there existed a breach of duty on their part. They were obliged to contend that, although the breach existed, the plaintiff was willing to take such risk upon himself ; and this they failed to prove. What they ought to have been able to maintain, was that the plaintiff had taken upon himself the risk, and that, therefore, they had not been guilty of any breach of duty {b). It is, therefore, submitted that the two cases of Smith v. Baker and Thomas v. Quartermaine are quite consistent with one another ; and the result of such cases may be stated thus : — In the first place, in an employment there may be certain well-known and apparent risks, which every person who engages in that employment must be taken to know, the particular consent being implied from the general course of conduct. Every sailor who mounts the rigging of a ship knows and appreciates the risk he is encountering. The act is his own, and he cannot be said not to consent to the thing which he (a) 18 Q.B.D., at p. 699. (6) Seeper Lord Watson, 1891, A.C., at pp. 361, 352. EMPLOYEES' LIABILITY. 105 himself 18 doing. And examples might be indefinitely multi- plied where the essential cause of the risk is the act of the complaining plaintiff himself, and where, therefore, the appli- cation of the maxim, " Volenti non fit injuria" is completely justified [a). Secondly, it is submitted that there is another class of cases to which the doctrine applies. There may be an operation carried on in a particular manner, by reason of which the plaintiff was injured, in which, if nothing more were proved, there would exist a presumption that the employer had not used reasonable care in the manner in which the work is carried on. It is submitted that if, in such a case, the employer can show that the workman knew of the state of affairs, appreciated the risk, and continued his work under such circumstances as to show that he had waived the right to the more stringent or greater degree of care on the part of his master, then the necessary implication is that, by continuing so to work, the servant has agreed that he would not look for the greater degree of care from his master, but is wUling to take upon himself the risk of injury arising from such want of greater care. It is submitted that the case of Thomas v. Quartermaine is an example of this second class of cases. There, it might have been negligence on the part of the master, towards such of his servants who were imperfectly acquainted with the locality, to leave the vat unfenced ; but this negligence did not exist so far as regards the plaintiff, as he knew and appreciated the risk, and must, therefore, be taken to have waived his right to the degree of care to which such other servants would have been entitled. As Lord Bowen says, in Thomas v. Quartermaine [b) : " A confusion of ideas has frequently been created in accident oases by an assumption that negligence to the many who are ignorant may be properly treated as negligence as regards the one individual who knows and runs the risk, and by dealing (o) Smith V. Baker, per Lord Halsbury, L.C., 1891, A.O., at p. 338 ; Church V. AppUhy, 68 L.J.Q.B. 144 ; 60 L.T. 542. (i) 18 Q.B.D., at p. 698. 106 WORKMEN'S COMPENSATION AND with the case as if it turned only on a suhsequent investigation into contributory negligence. ... To prove negligence, it is not enough to show that the defendant has been negligent to others : the plaintiff must show there has been a breach of duty towards himself." A master would be guilty of a breach of duty if he ordered one of his domestic servants to work on the roof of his house without taking precautions for the latter's safety ; but, on the other hand, if he employs a builder to mend the broken slates therein, can he be liable if the latter tumbles off ? Has the master been guilty of any breach of duty towards him ? Is he bound to erect a parapet round the roof before having the slates mended ? The duty of an occupier of premises which have an element of danger upon them reaches its vanishing point in the case of those who are cognisant of the full extent of the danger, and voluntarily run the risk, " Volenti non fit in- juria." {a) If what has been submitted is correct, it will be seen that the doctrine in question cannot be applied when the act of negligence on the part of the employer is the breach of some duty imposed upon him by statute. This duty, being statutory, arises independently of any agreement between the parties, and a presumption that it has been waived by the workman cannot be implied from any conduct on his part during his employment (b). To allow it to be so waived by the workman would, in all probability, be against public policy (i). It is, however, submitted that if the servant were to agree in his contract of employment for a consideration that the employer should, so far as the workman is concerned, not be bound by the provisions of the statute, it is probable that the servant could not recover. The agreement, with regard to the statutory obligation, would go to the root of the contract of employment, and, if it were held to be illegal, it is sub- mitted that it would not be severable from the residue of the (a) Fer Bowen, L.J., Thomas v. Quartermaine, 18 Q.B.D., at p. 696. (S) BaddeUy v. Earl Granville, 19 Q.B.D. 423 ; 66 L.J.Q.B. 501 ; 57 L.T. 268. EMPLOYERS' LIABILITY. 107 contract of employment ; and, therefore, if the contract was void, the servant would occupy the position of a trespasser, or, at most, a mere licensee. A curious case, which stands by itself, is that of Roebuck v. Tlie Norwegian Titanic Co (a). In that case a mine belonging to the defendants was invaded by black damp, admittedly by reason of the negligence of the defendants, or of some person for whom they were responsible. The deceased man Eoebuck heard that another man named Hall was in danger, and en- deavom-ed to rescue him, but lost his own life in the attempt. The widow brought her action under Lord Campbell's Act and the Employers' Liability Act, and recovered. The defences were two in number : (1) That the deceased was a volunteer, and (2) that he was guilty of contributory negligence. The first point, however, was given up by the defendants' counsel upon the hearing, and the Court held that, under the circumstances of the case, the question as to whether or not contributory negligence existed was a question for the County Court judge, and that, as he had decided this in favour of the plaintiff, his judgment could not be disturbed. It is difficult to see how the question of contributory negli- gence could arise. The deceased man knew that he was in- curring great risk, and resolved to undergo that risk for the purpose of saving his comrade's life. Such conduct was heroic, but certainly not negligent. It can hardly be maintained that a workman contracts with his employer, by implication derived from the ordinary contract of employment, that he will never run any risk in order to save the life of a fellow- servant. It seems to the writer that the only substantial defence in such a case was, that the death of the deceased man was not, legally speaking, caused by the negligent act of the defendants, as the deceased could have avoided the black damp by (a) 1 T.L.R. 117. 108 WORKMEN'S COMPENSATION AND retreating, and that it was his voluntary act, in endeavouring to save his comrade, which caused his death. Day, J., however, suggests that an order from the defendants to endeavour to save Hall might be implied from the circumstances. The writer thinks that an undertaking to be responsible for any injury resulting from obedience to such order might also be implied. In any case, the writer is confident that it would be almost, if not quite, impossible for the defendant to succeed under similar circumstances. EMPLOYERS' LIABILITY. 109 OHAPTEE YI. THE PRACTICE IN AN ACTION UNDER THE EMPLOYERS' LIABILITY ACT. The practice in an action brought at common law, or for the breach of some duty imposed by statute, is the same as that of any other common law action. If the amount of the damages claimed exceeds fifty pounds it should be commenced in the High Court, and if under that sum in the County Court. The general practice of those Courts will apply. The general practice of the County Court also, as a rule, applies to actions brought under the Employers' Liability Act ; but there are certain peculiarities in the practice relating to such actions which make it necessary to consider the same. Proceedings before the Trial. — The different proceedings to be considered before the trial are as follows : — (A) Notice of Injury. — In the first place, notice of injury must be given to the defendant under the statute. In cases where personal injury alone results, it must be given within six weeks from the occurrence of the injury {a), and there is no power to extend the period for giving such notice. If, therefore, the notice is not given within the six weeks the action must fail, if the defendant files due notice that he intends to rely upon the want of the same as a defence. If, however, the accident results in the death of the workman, the notice must be given within six weeks of the time of the death, but the want of notice is not a bar to the action if the judge who tries the case is of opinion that there was reasonable excuse for such want of notice (a). For form of notice see Appendix C (6). (a) E.L.A., s. 4. (li) Post p. 229. See also ante p. 63. no WORKMEN'S COMPENSATION AND (B) The Summons. — The action must be brought in the County Court (a), and in the home district the summons should be delivered to the bailiff thirty-two clear days at least, and in a foreign district thirty-five clear days before the return day, but must in either case be served thirty clear days before the return day {b) ; but if this is not done and the defendant appears and defends the action, he by his conduct waives any irregularity (c). An infant should sue by his next friend in the same way as in ordinary actions. (C) The particulars of demand. — The particulars of demand must be filed by the plaintiff at the time of the entry of the plaint, whatever the amount claimed may be, and a copy thereof must be forthwith sent to the judge. If more than one defendant is to be served, a copy must be provided for each defendant {d). It will be the duty of the officials of the Court to forward to the judge the copy provided for him (e). The particulars of demand should state in ordinary lan- guage (/) :— (1) The cause of the injury. (2) The date at which it occurred. (3) The amount of compensation claimed. (4) If the action is brought by more than one plaintiff, the amount claimed by each plaintiff. (5) The name and description of any person in the service of the defendant against whom negligence- is alleged. (6) An allegation that the plaintiff was in the service of the defendant as a workman. («)' E.L.A., 8. 6 (1), (b) C.C.E. 0. 44, r. 1. (c) Dunn v. Buthr, 1 T.L.E. 476. (d) C.C.R. 0. 51, r. 15. (c) Ih. 0. 44, r. 2. (/) lb. 0. 44, r. 3. For form, see Appendix C, post p. 230. EMPLOYERS' LIABILITY. Ill Where the aotion is brought under Lord Campbell's Aot as well as under the Employers' Liability Act, the particulars must contain the information prescribed in the full particular prescribed by that Act (a). If the particulars of demand are not sufficiently full or explanatory, the defendant may at any time, not less than five clear days before the return day, give notice to the plaintiff that he requires further paiiioulars, and the plaintiff must within two clear days after receiving such notice file full par- ticulars of his claim, and supply the defendant with a copy thereof. If the plaintiff fails to do so, the Court before or at the trial, if satisfied that the defendant is prejudiced in his defence, may order the plaintiff to file full particulars or may adjourn the case and stay all proceedings therein until such order has been complied with, and make such order as to costs as may be thought fit (6). Clear days in the County Court Rules are reckoned exclusive both of the first and last days (c). (D) Removal of the action into the High Court. — The action may, upon the application of either party, be removed into a superior court in like manner and upon the same conditions as an action commenced in the County Court may by law be removed {d). The defendant, however, cannot avail himself of the right given by the sixty-second section of the County Courts Act, 1888 ; that is to say, he cannot remove the action into the High Court, where more than ten pounds is claimed, by objecting to the action being tried in the County Court, and giving security for the costs (e). The High Court, or a judge or a master thereof, may order the removal into the High Court by writ of certiorari or other- wise, of any action commenced in the County Court (/), and as (a) Ante p. 86. For form, see p. 232. {*) C.C.E. 0. 6, r. 8. (c) lb. 0. 52. (i) E.L.A., 8. 6 (2). (e) JJ. V. Gity of London Court, 14 Q.B.D. 906 ; 64 L.J.Q.B. 330. (/) CCA. 1888, s. 126. 112 WORKMEN'S COMPENSATION AND a matter of practice, sucli an action is almost always removed by a writ of certiorari. The application for such writ is made to a judge in chambers, or to a master (a), but may not apparently be made to a district registrar, as no action is proceeding in the registry which would give him jurisdiction (b). It must be made upon an affidavit intituled in the High Court, but not in any cause or matter. The affidavit is in the ordinary form (c), and should contain all the material facts upon which the application is founded, and the grounds upon which it is based. The judge or master, upon the application, may either grant an order or summons calling upon the other party to show cause why the writ should not issue, or may forthwith order it to issue. The order nisi operates, if the Court so directs, as a stay of all the proceedings in the County Court until further order of the High Court, or the determination of the order or summons, and the County Court Judge must adjourn the trial of the action untU such order or determination (rf) . The application should be made in good time, for if the writ or the copy of the order or summons is not served by the party who has obtained it upon the Begistrar of the County Court two clear days before the day fixed for the trial, the judge may order such party to pay all the costs of the day or such costs as he thinks fit (e) . If the judge or master refuses to grant the summons or order or the writ, no other Court or judge may do so ; but the party making the application may appeal to the High Court itself, or make a second application to such court or a judge or master upon different grounds from those upon which the first appli- cation was based (/). The terms upon which the writ, summons or order is granted are in the discretion of the Court, judge or master (a). (o) lb. B. 126. (*) E.S.C. 0. 35, r. 6. (c) Post Appendix C, p. 233. {d) C.C.A., 8. 129. (e) Ih. 8. 129, 130. (/) C.C.A., 8. 132. EMPLOYERS' LIABILITY. 113 It is extremely difScult to obtain a writ of certiorari to remove an action brought under the Employers' Liability Act into the High Court. The fact that difficult questions of law- are likely to arise, which is a good ground for removal in an ordinary action, is, as a rule, of no avail, as almost all, if not all, questions of law which can arise are those which arise under the Act, and the Legislature when it enacted that this class of actions should be brought in a County Court, must have contemplated that such tribunal was competent to deal with such questions of law. The same reasoning, as a rule, applies to evidence of a scientific nature which it may be intended to adduce (a). The fact that the plaintiff was desirous of commencing a common law action for negligence in the High Court, and wished to remove an action under the Employers' Liability Act commenced by him in a County Court into the High Court, in order that the two actions might be consolidated and tried together, has been stated not to be a good ground for removal (b) ; but the fact that a fair trial cannot be obtained owing to local feeling is a good ground (c), unless perhaps the plaintiff is willing to forego his right to a jury. The large amount of a claim, by itself, is not a good ground for removal, although the general importance of the action, added to the fact that difficult questions of law might arise, may be a good ground (d). (B) Interrogatories. — Either party to an action may, without filing an affidavit, by leave of the judge or registrar, deliver interrogatories in writing for the examination of any one or more of the opposite parties. The practice relating thereto is the same as in other actions brought in the County Court, and is contained in Order XVI. of the County Court Rules. A form will be found in Appendix C. (a) Mundayy. The Thames Ironworks Co., 10 Q.B.D. 59; 52 L.J.Q.B. 119; 47 L.T. 351. (fi) Mtmday v. The Thames Ironworhs Co., supra. (ff) Bates V. Warner, 5 T.L.R. 582. [d) Potter V. The Great Western Colliery Co., 10 T.L.E. 380. 8 114 WORKMEN'S COMPENSATION AND (F) S-pecial Defences. — The special defences wliicli may be set up in this class of action are three in number : — (1) that no notice of injury has been served within the proper time ; (2) that the action has not been commenced within the time limited ; and (3) payment into Court. It has been decided that the defence of want of due notice is a special defence, and notice thereof must be given if it is intended to set it up {a) ; and there can be little doubt that notice of the defence that the action has not been commenced within the proper time must also be filed. This notice must be filed five clear days before the return day, and it is then the duty of the registrar to transmit a copy thereof to the plaintiff. If the defendant is too late, the judge may, on such terms as he thinks fit, adjourn the trial of the action to enable the defendant to give such notice, provided that the plaintiff will not consent to allow the defendant to avail himself of the notice on the return day ih). The notice must contain the defendant's name and address, together with a concise statement of his grounds (c), and the year, chapter and section of the statute, and the particular matter upon which he relies (d). For form of notice, see Appendix C. (e) (Gr) Payment into Court. — The rules relating to payment into Court in this class of action are the same as those which regulate the general practice of the County Court on this point. A form of notice will be found in Appendix 0. (e) (H) The Jury.—li it is desired by either party that the action should be tried by the judge sitting with a jury, notice {a) Conroy v. Feaoock, 1897, 2 aB. 6 ; 66 L.J.Q.B. 426 ; 76 L.T. 465 : 61 J. P. 310. (J) C.O.E. 0. 10, r. 10. {«) Ih. i. 10. (d) lb. rr. 14a, 18a. (e) Posi p. 235. EMPLOYERS' LIABILITY. 115 of a demand for the same must be given, at least fifteen clear days before the return day (a), that is to say fifteen days, reckoned exclusive both of the first and last days {b) ; but if notice has not been given in time the judge may, upon such terms as he thinks fit, adjourn the trial in order that a notice for a jury may be given (c). (I) Assessors. — The action may also be tried by the judge, assisted by one or more assessors who may be appointed for the purpose of ascertaining the amount of the compensation (d) ; but, in practice, it will be found that assessors are very rarely, if ever, required for this purpose, as the County Court Judge is usually quite as well able to assess the compensation as assessors would be. There appears, however, to be no reason why assessors to advise the judge upon technical questions may not be appointed under the provisions relating to assessors in the general practice of the Courts (e) ; but even this power is very rarely exercised. The qualification of an assessor is merely that he should have been appointed by the judge (/). If there has been no demand for a jury, the party who desires assessors to be appointed must, at least ten clear days before the return day, file an application according to the form, stating the number, names, addresses, and occupations of the persons who have expressed their willing- ness in writing to act as assessors. If the applicant has obtained the consent of his opponent to the appointment of the persons proposed, this consent must "be filed with the application (g). Where the application is made by one party, the registrar must forward a copy thereof to the other party, who may either («) C.C.R. 0. 44, r. 4. (b) C.C.K. 0. 52. (c) lb. 0. 22, r. 2. {d) B.L.A., M. 6 (2); C.C.E. O. 44, i. 17. (e) C.C.A., s. 103 ; C.C.E. 0. 21. (/) C.C.E. 0. 44, r. 5. (?) C.C.E. O. 44, r. 6. 8a 116 WORKMEN'S COMPENSATION AND make an application himself or else object to one or more of the persons proposed {a). When each party makes an application no party may object, but the judge may appoint an equal number, from one upwards, from each list (b). The applications and objections must be forwarded by the registrar to the judge (c), who, if he grants the application, may appoint such of the persons proposed as he may think fit, subject to the pro- visions contained in this order (d). Where no demand for a jury has been made and such an application has been filed, the judge may appoint an additional person as assessor ; and if no application has been made, may appoint any one or more persons to act as assessors before the return day ( e). If one or more of the assessors do not attend the trial the judge may (1) try with those who do attend ; (2) adjourn the case on any terms he may think fit ; (3) appoint any available person who is willing to act, and against whom no sufficient objection is made ; or (4) may try the case without any assessors (/). The remuneration of the assessors is two guineas each per day's attendance in every action, with such allowance for expenses as the judge may order (g-). The party applying for the assessor must deposit two guineas per assessor with the registrar, unless the assessor in writing informs the registrar that he does not require pay- ment (A) . The remuneration of any assessors, other than those proposed by the parties, must be borne by the parties, or either of them, as the judge may direct {i) ; and if the action is settled before trial the assessor is entitled to half his fee, and the residue of the two guineas, less expenses, is paid back to the party depositing the two guineas (J). {a.) C.O.E. 0. 44, r. 7. (S) lb. r. 8. (c) lb. T. 9. {d} lb. r. 10. (e) a. r. 11. (/) /*. r. 12. (vhich persons work for hire in making lucifer matches, or in mixing the chemical materials for making them, or in any process incidental to making lucifer matches, except the cutting of the wood ; (5.) "Percussion-cap works," that is to say, any place in which persons work for hire in making percussion caps, or in mixing or storing the chemical materials for making them, or in any process incidental to making percussion caps ; (6.) "Cartridge works," that is to say, any place in which persons work for hire in making cartridges, or in any process incidental to making cartridges, except the manufacture of the paper or other material that is used in making the cases of the cartridges ; (7.) "Paper-staining works," that is to say, any place in which persons work for hire in printing a pattern in colours upon sheets of PACTOBY AND WORKSHOP ACTS, 1878 to 1895. 195 paper, either by blocks applied by hand, or by rollers worked by steam, water, or other mechanical power ; (8.) " Fustian-cutting works," that is to say, any place in which persons work for hire in fustian cutting ; (9.) " Blast furnaces," that is to say, any blast furnace or other furnace or premises in or on which the process of smelting or other- wise obtaining any metal from the ores is carried on ; (10.) "Copper mills"; (11.) "Iron mills," that is to say, any mill, forge, or other premises in or on which any process is carried on for converting iron into malleable iron, steel, or tin plate, or for otherwise making or converting steel ; (12.) " Foundries," that is to say, iron foundries, copper foundries, brass foundries, and other premises or places in which the process of founding or casting any metal is carried on ; except any premises of places in which such process is carried on by not more than five persons and as subsidiary to the repair or completion of some other work ; (13.) " Metal and india-rubber works," that is to say, any premises in which steam, water, or other mechanical power is used for moving machinery employed in the manufacture of machinery, or in the manufacture of any article of metal not being machinery, or in the manufacture of india-rubber or gutta-percha, or of articles made wholly or partially of india-rubber or gutta-percha ; (14.) "Paper mills," that is to say, any premises in which the manufacture of paper is carried on ; (15.) " Glass works," that is to say, any premises in which the manufacture of glass is carried on ; (16.) "Tobacco factories," that is to say, any premises in which the manufacture of tobacco is carried on ; (17.) "Letter-press printing works," that is to say, any premises in which the process of letter-press printing is carried on ; (18.) "Bookbinding works," that is to say, any premises in which the process of bookbinding is carried on ; (19.) Flax scutch mills. ^ ' 13 a 196 FACTORY AND WORKSHOP ACTS, 1878 to 1895. Part Two. Non-Textile Factories and Workshops. (20.) " Hat works," that is to say, any premises in whicE the manufacture of hats or any process incidental to their manufacture is carried on ; (21.) "Rope works," that is to say, any premises being a ropery ropewalk, or rope work, in which is carried on the laying or twisting or other process of preparing or finishing the lines, twines, cords, or ropes, and in which machinery moved by steam, water, or other mechanical power is not used for drawing or spinning the fibres of flax, hemp, jute, or tow, and which has no internal communication with any buildings or premises joining or forming part of a textile factory, except such communication as is necessary for the trans- mission of power ; (22.) "Bakehouses," that is to say, any places in which are baked bread, biscuits, or confectionery from the baking or selling of which a profit is derived ; (23.) " Lace warehouses," that is to say, any premises, room, or place not included in bleaching and dyeing works as herein-before defined, in which persons are employed upon any manufacturing process of handicraft in relation to lace, subsequent to the making of lace upon a lace machine moved by steam, water, or other mechanical power ; (24.) " Shipbuilding yards," that is to say, any premises in which any ships, boats, or vessels used in navigation are made, finished, or repaired ; (25.) " Quarries," that is to say, any place not being a mine, in which persons work in getting slate, stone, coprolites, or other minerals ; (26.) " Pit-banks," that is to say, any place above ground adjacent to the shaft of a mine, in which place the employment of women is not regulated by the Coal Mines Regulation Act, 1872, or the Metalliferous Mines Regulation Act, 1872, whether such place does or does not form part of the mine within the meaning of those Acts. FACTORY AND WORKSHOP ACTS, 1878 to 1895. 197 Factory and Workshop Act, 1895. Laundries. 22. — (!•) In any laundry carried on by way of trade, or for purpose of gain, the following provisions shall apply : — (iv.) So far as regards sanitary provisions, safety, accidents, the affixing of notices and abstracts and the matters to be specified in such notices (so far as they apply to laundries), notice of occupation of a factory or workshop, powers of inspectors, fines, and legal proceedings for any failure to comply with the pro- visions of this section, and education of children, the Factory Acts shall have effect as if every laundry in which steam, water, or other mechanical power is used in aid of the laundry process were a factory, and every other laundry were a workshop ; and as if every occupier of a laundry were the occupier of a factory or of a workshop. Docks, &c. 23. — (!•) The following provisions, namely : — (i.) Section eighty-two of the principal Act ; (ii.) The provisions of the Factory Acts with respect to accidents. (iv.) Sections eight to twelve of the Act of 1891 with respect to special rules for dangerous employments. (v.) The provisions of this Act with respect to the powers to make orders as to dangerous machines, and shall have effect as if — (a) every dock, wharf, quay, and warehouse, and so far as relates to the process of loading or unloading therefrom or thereto, all machinery and plant used in that process ; and (6) any premises on which machinery worked by steam, water, or other mechanical power, is temporarily used for the purpose of the construction of a building or any structural work in con- nexion with a building, 198 FACTORY AND WORKSHOP ACTS, 1878 to 1895. were included in the word factory, and the purpose for which the machinery is used were a manufacturing process, and as if the person who by himself, his agents, or workmen temporarily uses any such machinery for the before-mentioned purpose were the occupier of the said premises ; and for the purpose of the enforcement of those sections the person having the actual use or occupation of a dock, wharf, quay, or warehouse, or of any premises within the same or forming part thereof, and the person so using any such machinery, shall be deemed to be the occupier of a factory. (2.) The provisions of this Act with respect to notice of accidents and the formal investigation of accidents shall have effect as if — (as) any building which exceeds thirty feet in height, and which is being constructed or repaired by means of a scaffolding ; and (6) any building which exceeds thirty feet in height, and in which more than twenty persons, not being domestic servants, are employed for wages ; were included in the word " factory," and as if, in the first case, the employer of the persons engaged in such construction or repair, and, in the second case, the occupier of the building, were the occupier of a factory. Tenement Factories. 24. — (1-) Where mechanical power is supplied to different parts of the same building occupied by different persons for the purpose of any manufacturing process or handicraft in such manner that those parts constitute in law separate factories, the owner (whether or not he is one of the persons so in occupation) of the building (which building is hereafter in this Act referred to as a tenement factory) shall, instead of the occupier, be liable for the observance, and punishable for non-observance, of the following provisions, namely ; (b.) Sections five and eighty-two of the principal Act, with respect to the fencing of machinery in a factory, except so far as those sections relate to such parts of the machinery as are supplied by the occupier ; and (4.) The provisions of this Act with respect to the power to make orders in the case of dangerous premises shall apply in the case of a tenement factory as if the owner were substituted for the occupier. FACTORY AND WORKSHOP ACTS, 1878 to 1895. 199 (6.) For the purpose of the provisions of this Act with respect to tenement factories all buildings situate within the same close or curtilage shall be treated as one building. (7.) This section shall not apply in the case of any occupier pay- ing a rent in excess of two hundred pounds a year. 25. — (1-) Where grinding is carried on in a tenement factory, the owner of the factory shall be responsible for the observance of the regulations set forth in the First Schedule to this Act. (2.) In every such tenement factory it shall be the duty of the owner and of the occupier of the factory respectively to see that such parts of the horsing chains and of the hooks to which the chains are attached as are supplied by them respectively are kept in efficient condition. (3.) In every tenement factory where grinding or cutlery is carried on the owner of the factory shall provide that there shall at all times be instantaneous communication between each of the rooms in which the work is carried an and both the engine-room and the boiler-house. (4.) A tenement factory in which there is any contravention of this section shall be deemed not to be kept in conformity with the principal Act, but for the purposes of any proceeding in respect of a provision for the observance of which the owner of the factory is responsible, that owner shall be substituted for the occupier of the factory. (5.) This section shall not apply to a textile factory. B.— THE FENCING OF MACHINERY IN A FACTORY. Factory and Workshop Act, 1878. (2.) Safety. 5, — With respect to the fencing of machinery in a factory the following provisions shall have effect ; (1.) Every hoist or teagle near to which any person is liable to pass or to be employed, and every fly-wheel directly 200 FACTORY AND WORKSHOP ACTS, 1878 to 1895. connected with the steam or water or other mechanical power, whether in the engine house or not, and every part of a steam engine and water wheel, shall be securely fenced J and (2.) Every wheel-race not otherwise secured shall be securely fenced close to the edge of the wheel-race ; and (3.) Every part of the mill gearing shall either be securely fenced or be in such position or of such construction as to be equally safe to every person employed in the factory as it would be if it were securely fenced ; and (4.) All fencing shall be constantly maintained in an efficient state while the parts required to be fenced are in motion or use for the purpose of any manufacturing .process. A factory in which there is a contravention of this section shall be deemed not to be kept in conformity with this Act. Definition. 96, — The expression " mUl-gearing " comprehends every shaft, whether upright, oblique, or horizontal, and every wheel, drum, or pulley by which the motion of the first moving power is communicated to any machine appertaining to a manufacturing process. (4.) Fines. 81. — If a factory or workshop is not kept in conformity with this Act, the occupier thereof shall be liable to a fine not exceeding ten pounds. The court of summary jurisdiction, in addition to or instead of inflicting such fine may order certain means to be adopted by the occupier, within the time named in the order, for the purpose of bringing his factory or workshop into conformity with this Act ; the court may, upon application, enlarge the time so named, but if, after the expiration of the time as originally named or enlarged by subsequent order, the order is not complied with, the occupier shall be Uable to a fine not exceeding one pound for every day that such non-compliance continues. FACTORY AND WORKSHOP ACTS, 1878 to 1895. 201 82. — If any person is killed or suffers any bodily injury in con- sequence of the occupier of a factory having neglected to fence any machinery required by or in pursuance of this Act to be securely fenced, or having neglected to maintain such fencing, or in con- sequence of the occupier of a factory or workshop having neglected to fence any vat, pan, or other structure required by or in pursuance of this Act to be securely fenced, or having neglected to maintain such fenciug, the occupier of the factory or workshop shall be liable to a fine not exceeding one hundred pounds, the whole or any part of which may be applied for the benefit of the injured person or his family, or otherwise as the Secretary of State determines : Provided that the occupier of a factory shall not be liable to a fine under this section if an information against him for not fencing the part of the machinery, or the vat, pan, or other structure, by which the death or bodily injury was inflicted, has been heard and dismissed previous to the time when the death or bodily injury was inflicted. Factory and Workshop Act, 1891. Safety. 6, — (1.) The words " near to which any person is liable to pass or to be employed " in sub-section (1) of section five of the principal Act are hereby repealed. (2.) In sub-section three of the same section before the words " every part " shall be inserted the words " all dangerous parts of the machinery and." 37. — (!•) For the purposes of the principal Act and this Act the expression " machinery " shall include any driving strap or band, and the expression " process " shall include the use of any locomotive. Factory and Workshop Act, 1895. 2, — (1.) A court of summary jurisdiction may, on complaint by an inspector, and on being satisfied that any place used as a factory or workshop or as part of a factory or workshop is in such a condition that any manufacturing process or handicraft carried on therein cannot be so carried on without danger to health or to 202 FACTOEY AND WORKSHOP ACTS, 1878 to 1895. life or limb, by order, prohibit the place from being used for the purpose of that process or handicraft, until such works have been executed as are in the opinion of the court necessary to remove the danger. 4. — (1.) A court of summary jurisdiction may, on complaint by an inspector, and on being satisfied that any machine used in a factory or workshop is in such a condition that it cannot be used without danger to life or limb, by order prohibit the machine from being used, or, if it is capable of repair or alteration, from being used until it is duly repaired or altered. (2.) Where a complaint has been made under this section the court or a justice may, on application ex parte by the inspector, and on receiving evidence that the use of any such machine involves imminent danger to life, make an interim order prohibiting either absolutely or subject to conditions the use of the machine until the earliest opportunity for hearing and determining the complaint. (3.) If there is any contravention of an order under this section, the person entitled to control the use of the machine shall be liable to a fine not exceeding forty shillings a day during such con- travention. 7. — (1.) In paragraph (1) of section five of the principal Act for the words " a steam engine and water-wheel " shall be substituted the words " any water-wheel or engine worked by any such power." (2.) In paragraph (3) of the same section after the word " employed," the words " or working " shall be inserted. (3.) In paragraph (4) of the same section for the words " for the purpose of any manufacturing process," shall be substituted the words " except where the parts are under repair or under examina- tion in connexion with repair, or are necessarily exposed for the purpose of cleaning or lubricating or for altering the gearing or arrangements of the parts of the machine." 9, — (1.) In a factory erected after the commencement of this Act, the traversing carriage of any self-acting machine shall not be allowed to run out within a distance of eighteen inches from any fixed structure not being part of the machine, if the space over which it so runs out is a space over which any person is liable to pass, whether in the course of his employment or otherwise. FACTORY AND WORKSHOP ACTS, 1878 to 1895. 203 C— SUPERINTENDENCE AND CONTROL IN A FACTORY. Factory and Wokkshop Act, 1878. 96. — In this Act, unless the context otherwise requires, — The expression " child " means a person under the age of fourteen years : The expression " young person " means a person of the age of fourteen years and under the age of eighteen years : The expression " woman " means a woman of eighteen years of age and upwards : The expression " Secretary of State " means one of Her Majesty's Principal Secretaries of State : The expression " prescribed " means prescribed for the time being by a Secretary of State : The expression " person " includes a body of persons corporate or unincorporate : 26. — When a child of the age of thirteen years has obtained from a person authorised by the Education Department a certificate of having attained such standard of proficiency in reading, writing, and arithmetic, or such standard of previous due attendance at a certified efficient school, as hereinafter mentioned, that child shall be deemed to be a young person for the purposes of this Act. The standards of proficiency and due attendance for the purposes of this section shall be such as may be from time to time fixed for the purposes of this Act by a Secretary of State, with the consent of the Education Department, and the standards so fixed shall be published in the London Gazette, and shall not have effect until the expiration of at least six months after such publication. 94, — A child, young person, or woman who works in a factory or workshop, whether for wages or not, either in a manufacturing process or handicraft, or in cleaning any part of the fact ry or workshop used for any manufacturing process or handicraft, or in cleaning or oiling any part of the machinery, or in any other kind of work whatsoever incidental to or connected with the manu- 204 FACTORY AND WORKSHOP ACTS, 1878 to 1895. facturing process or handicraft, or connected with the article made or otherwise the subject of the manufacturing process or handicraft therein, shall, save as is otherwise provided by this Act, be deemed to be employed therein within the meaning of this Act. For the purposes of this Act an apprentice shall be deemed to work for hire. 9, — A child shall not be allowed to clean any part of the machinery in a factory while the same is in motion by the aid of steam, water, or other mechanical power. A young person or woman shall not be allowed to clean such part of the machinery in a factory as is mill-gearing while the same is in motion for the purpose of propelling any part of the manu- facturing machinery. A child, young person, or woman shall not be allowed to work between the fixed and traversing part of any self-acting machine while the machine is in motion by the action of steam, water, or other mechanical power. A child, young person, or woman allowed to clean or to work in contravention of this section shall be deemed to be employed contrary to the provisions of this Act. 83. — Where a child, young person, or woman is employed in a factory or workshop contrary to the provisions of this Act, the occupier of the factory or workshop shall be liable to a fine not exceeding three, or if the offence was committed during the night, five pounds for each child, young person, or woman so employed. 99, — Where in a factory the owner or hirer of a machine or implement moved by steam, water, or other mechanical power, in or about or in connexion with which machine or implement children, young persons, or women are employed, is some person other than the occupier of a factory, and such children, young persons, or women are in the employment and pay of the owner or hirer of such machine or implement, in any such case such owner or hirer shall, so far as respects any offence against this Act which may be committed in relation to such children, young persons, or women be deemed to be the occupier of the factory. FACTORY AND WORKSHOP ACTS, 1878 to 1895. 205 Factory and Wokkshop Act, 1891. 8, — (1.) Where the Secretary of State certifies that in his opinion any machinery or process or particular description of manual labour used in a factory or workshop (other than a domestic workshop) is dangerous or injurious to health, or dangerous to life or limb, either generally or in the case of women, children, or any other class of persons, or that the provision for the admission of fresh air is not sufficient, or that the quantity of dust generated or inhaled in any factory or workshop is dangerous or injurious to health, the chief inspector may serve on the occupier of the factory or workshop a notice in writing, either proposing such special rules or requiring the adoption of such special measures as appear to the chief inspector to be reasonably practicable and to meet the necessities of the case. (2.) Unless within twenty-one days after receipt of the notice the occupier serves on the chief inspector a notice in writing that he objects to the rules or requirement, the rules shall be established, or, as the case may be, the requirement shall be observed. (3.) If the notice of objection suggests any modification of the rules or requirement, the Secretary of State shall consider the suggestion and may assent thereto with or without any further modification which may be agreed on between the Secretary of State and the occupier, and thereupon the rules shall be established, or, as the case may be, the requirement shall be observed, subject to such modification. (4.) If the Secretary of State does not assent to any objection or modification suggested as aforesaid by the occupier, the matter in difference between the Secretary of State and the occupier shall be referred to arbitration under this Act, and the date of the receipt of the notice of objection by the Secretary of State shall be deemed to be the date of the reference, and the rules shall be established, or the requisition shall have effect, as settled by an award on arbitration. (5.) Any notice under this section may be served by post. (6.) With respect to arbitrations under this Act the provisions in the First Schedule to this Act shall have effect. 206 FACTORY AND WORKSHOP ACTS, 1878 to 1895. (7.) No person shall be precluded by any agreement from doing, or be liable under any agreement to any penalty or forfeiture for doing, such acts as may be necessary in order to comply with the provisions of this section. 9. — (1.) If any person who is bound to observe any special rules established for any factory or workshop under this Act acts in contravention of, or fails to comply with, any such special rule, he shall be liable on summary conviction to a fine not exceeding two pounds ; and the occupier of the factory or workshop shall also be liable on summary conviction to a fine not exceeding ten pounds, unless he proves that he had taken all reasonable means, by publishing, and to the best of his power enforcing, the rules to prevent the contravention or non-compliance. (2.) A factory or workshop in which there is a contravention of any requirement made under this Act shall be deemed not to be kept in conformity with the principal Act. Factory and Workshop Act, 1895. 8, — The first paragraph of section nine of the principal Act (which relates to the cleaning of machinery) shall apply, so far as the dangerous parts of machinery are concerned, to young persons in like manner as it applies to children, and for this purpose such parts of the machinery shall, unless the contrary is proved, be presumed to be dangerous as are so notified by an inspector to the occupier of the factory. 9. — (2.) A person employed in a factory shall not be allowed to be in the space between the fixed and the traversing portions of a self-acting machine unless the machine is stopped with the traversing portion on the outward run, but for the purpose of this provision the space in front of a self-acting machine shall not be included in the space aforesaid. (3.) A factory in which a traversing carriage is allowed to run out in contravention of this section shall be deemed not to be kept in conformity with the principal Act, and any person allowed to be in the space aforesaid in contravention of this section, shall be deemed to be employed contrary to the provisions of the principal Act. FACTORY AND WORKSHOP ACTS, 1878 to 1895. 207 Tenement Factories. 24. — (1.) Where mechanical power is supplied to different parts of the same building occupied by different persons for the purpose of any manufacturing process or handicraft in such manner that those parts constitute in law separate factories,' the owner (whether or not he is one of the persons so in occupation) of the building (which building is hereafter in this Act referred to as a tenement factory) shall, instead of the occupier, be liable for the observance, and punishable for non-observance, of the following provisions, namely : (3-) Sections eight to eleven of the Act of 1891, shall, if and as far as if in the case of a tenement factory the Secretary of State by order so directs, apply as if the owner of the factory were substituted for the occupier. (7.) This section shall not apply in the case of any occupier paying a rent in excess of two hundred pounds a year. 28. — (1.) Section eight of the Act of 1891 shall extend to authorise the making of special rules or requirements prohibiting the employment of, or modifying the period of employment for, all or any classes of persons in any process or particular description of manual labour which is certified by the Secretary of State to be dangerous or injurious to health, or dangerous to life or limb. Provided that any special rules or requirements under this section which relate to the employment or period of employment of adult workers shall be laid for forty days before both Houses of Parliament before coming into operation. 208 WORKMEN'S COMPENSATION ACT, 1897, [60 & 61 Vict. Ch. 37.J An Act to amend the Law with respect to Compensation to "Workmen for accidental Injuries suffered in the course of their Employment. \_6th August 1897.] "OE it enacted by the Queen's most Excellent Majesty, by and J-' with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : — 1, — (1.) If in any employment to which this Act applies personal injury by accident arising out of and in the course of the employ- ment is caused to a workman, his employer shall, subject as herein-after mentioned, be liable to pay compensation in accordance with the First Schedule to this Act. (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 two weeks from earning full wages at the work at which he was employed ; (6.) 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 Uability of the employer, but in that case the workman may, at his option, either claim compensation under this Act, or take the same proceedings as were open to him WORKMEN'S COMPENSATION ACT, 1897. 209 before the commencement of this Act ; but the employer shall not be liable to pay compensation for injury to a workman by accident arising out of and in the course of 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 ; (c.) If it is proved that the injury to a workman is attributable to the serious and wilful misconduct of that workman, any compensation claimed in respect of that injury shall be dis- allowed. (3.) If any question arises in any proceedings under this Act as to the UabiUty to pay compensation under this Act (including any question as to whether the employment is one to which this Act applies), or as to the amount or duration of compensation under this Act, the question, if not settled by agreement, shall, subject to the provisions of the First Schedule to this Act, be settled by arbitration, in accordance with the Second Schedule to this Act. (4.) If, within the time herein-after in this Act limited for taking proceedings, an action is brought to recover damages independently of this Act for injury caused by any accident, and it is determined in such action that the injury is one for which the employer is not liable in such action, but that he would have been liable to pay compensation under the provisions of this Act, the action shall be dismissed ; but the court in which the action is tried shall, if the plaintifif shall so choose, proceed to assess such compensation, and shall be at liberty to deduct from such compensation all the costs which, in its judgment, have been caused by the plaintiff bringing the action instead of proqeeding under this Act. In any proceeding under this sub-section, when the Court assesses the compensation it shall give a certificate of the compensation it has awarded and the directions it has given as to the deduction for costs, and such certificate shall have the force and effect of an award under this Act. (5.) Nothing in this Act shall affect any proceeding for a fine under the enactments relating to mines or factories, or the applica- tion of any such fine, but if any such fine, or any part thereof, has been applied for the benefit of the person injured, the amount so 14 210 WORKMEN'S COMPENSATION ACT, 1897. applied shall be taken into account in estimating the compensation under this Act. 2. — (1.) Proceedings for the recovery under this Act of compen- sation 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 employ- ment in which he was injured, and unless the claim for compensation with respect to such accident has been made within "six months from the occurrence of the accident causing the injury, or, in case of death, within six months from the time of death. Provided always that the want of or any defect or inaccuracy in such notice shall not be a bar to the maintenance of such proceedings, if it is found in the proceedings for settling the claim that the employer is not prejudiced in his defence by the want, defect, or inaccuracy, or that such want, defect, or inaccuracy was occasioned by mistake or other reasonable cause. (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 it was sustained, and shall be served on the employer, or, if there is more than one employer, upon one of such employers. (3.) The notice may be served by delivering the same to or at the residence or place of business of the person on whom it is to be served. (4.) The notice may also be served by post by a registered letter addressed to the person on whom it is to be served at his last known place of residence or place of business, and if served by post shall be deemed to have been served at the time when the letter containing the same would have been delivered in the ordinary course of post, and in proving the service of such notice it shall be sufficient to prove that the notice was properly addressed and registered. (5.) Where the employer is a body of persons corporate or unin- corporate, the notice may also be served by delivering the same at, or by sending it by post in a registered letter addressed to the employer at, the office, or, if there be more than one office, any one of the offices of such body. WOEKMEN'S COMPENSATION ACT, 1897. 211 3. — (1.) If the Registrar of Friendly Societies, after taking steps to ascertain the views of the employer and 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, is on the whole not less favourable to the general body of workmen and their dependants than the provisions of this Act, the employer may, until the certifi- cate is revoked, contract with any of those workmen that the provisions of the scheme shall be substituted for the provisions of this Act, and thereupon the employer shall be liable only in accord- ance with the scheme, but, save as aforesaid, this Act shall apply notwithstanding any contract to the contrary made after the com- mencement of this Act. (2.) The registrar may give a certificate to expire at the end of a limited period not less than five years. (3.) No scheme shall be so certified which contains an obligation upon the workmen to join the scheme as a condition of their hiring. (4.) If complaint is made to the Registrar of Friendly Societies by or on behalf of the workmen of any employer that the provisions of any scheme are no longer on the whole so favourable to the general body of workmen of such employer and their dependants as the provisions of this Act, 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 registrar shall examine into the complaint, and, if satisfied that good cause exists for such complaint, shall, unless the cause of complaint is removed, revoke the certificate. (5.) When a certificate is revoked or expires any moneys or securities held for the purpose of the scheme shall be distributed as may be arranged between the employer and workmen, or as may be determined by the Registrar of Friendly Societies in the event of a difference of opinion. (6.) Whenever a scheme has been certified as 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 Registrar of Friendly Societies. 14 a 212 WORKMEN'S COMPENSATION ACT, 1897. (7.) The Chief Registrar of Friendly Societies shall include in his annual report the particulars of the proceedings of the Registrar under this Act. 4. Where, in an employment to which this Act applies, the undertakers as herein-after defined contract with any person for the execution by or under such contractor of any work, and the under- takers would, if such work were executed by workmen immediately employed by them, be liable to pay compensation under this Act to those workmen in respect of any accident arising out of and in the course of their employment, the undertakers shall be liable to pay to any workman employed in the execution of the work any com- pensation which is payable to the workman (whether under this Act or in respect of personal negUgence or wilful act independently of this Act) by such contractor, or would be so payable it such contractor were an employer to whom this Act applies. Provided that the undertakers shall be entitled to be indemnified by any other person who would have been liable independently of this section. This section shall not apply to any contract with any person for the execution by or under such contractor of any work which is merely ancillary or incidental to, and is no part of, or process in, the trade or business carried on by such undertakers respectively. 5. — (1.) Where any employer becomes liable under this Act to pay compensation in respect of any accident, and is entitled to any sum from insurers in respect of the amount due to a workman under such liability, then in the event of the employer becoming bankrupt, or making a composition or arrangement with his creditors, or if the employer is a company of the company having commenced to be wound up, such workman shall have a first charge upon the sum aforesaid for the amount so due, and the judge of the county court may direct the insurers to pay such sum into the, Post Office Savings Bank in the name of the registrar of such court, and order the same to be invested or applied in accordance with the provisions of the First Schedule hereto with reference to the invest- ment in the Post Office Savings Bank of any sum allotted as compensation, and those provisions shall apply accordingly. WORKMEN'S COMPENSATION ACT, 1897. 213 (2.) In the application of this section to Scotland, the words " have a first charge upon " shall mean " be preferentially entitled to." 6. — Where the injury for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof, the workman may, at his option, proceed, either at law against that person to recover damages, or against his employer for compensation under this Act, but not agaiast both, and if compen- sation be paid under this Act, the emplSyer shall be entitled to be indemnified by the said other person. 7, — (1.) This Act shall apply only to employment by the under- takers as herein-after defined, on or in or about a railway, factory, mine, quarry, or engineering work, and to employment by the undertakers as herein-after defined on in or about any building which exceeds thirty feet in height, and is either being constructed or repaired by means of a scaffolding, or being demolished, or on which machinery driven by steam, water, or other mechanical power, is being used for the purpose of the construction, repair, or demolition thereof. (2.) In this Act— " Railway " means the railway of any railway company to which the Regulation of Railways Act, 1873, applies, and includes a light railway made under the Light Railways Act, 1896; and "railway" and "railway company" have the same meaning as in the said Acts of 1873 and 1896 : " Factory " has the same meaning as in the Factory and Workshop Acts, 1878 to 1891, and also includes any dock, wharf, quay, warehouse, machinery, or plant, to which any provision of the Factory Acts is apphed by the Factory and Workshop Act, 1895, and every laundry worked by steam, water, or other mechanical power : " Mine " means a mine to which the Coal Mines Regulation Act, 1887, or the Metalliferous Mines Regulation Act, 1872, applies : 214 WORKMEN'S COMPENSATION ACT, 1897. " Quarry" means a quarry under the Quarries Act, 1894 : " Engineering work " means any work of construction or alterEi- tion or repair of a railroad, harbour, dock, canal, or sewer, and includes any other work for the construction, alteration, or repair of which machinery driven by steam, water, or other mechanical power is used : " Undertakers " in the case of a railway means the railway company; in the case of a factory, quarry, or laundry means the occupier thereof within the meaning of the Factory and Workshop Acts, 1878 to 1895 ; in the case of a mine means the owner thereof within the meaning of the Coal Mines Regulation Act, 1887, or the Metalliferous Mines Regulation Act, 1872, as the case may be, and in the case of an engineering work means the person under- taking the construction, alteration, or repair ; and in the case of a building means the persons undertaking the construction, repair, or demolition : " Employer " includes any body of persons corporate or unin- corporate and the legal personal representative of a deceased employer. "Workman" includes every person who is engaged in an em- ployment to which this Act applies, whether by way of manual labour or otherwise, and whether his agreement is one of service or apprenticeship or otherwise, and is expressed or implied, is oral or in writing. Any reference to a workman who has been injured shall, where the workman is dead, include a reference to his legal personal representative or to his dependants, or other person to whom compensation is payable : " Dependants '' means — (a) in England and Ireland, such members of the work- man's family specified in the Fatal Accidents Act, 1846, as were wholly or in part dependent upon the earnings of the workman at the time of his death ; and (6) in Scotland, such of the persons entitled according to the law of Scotland to sue the employer for damages or WORKMEN'S COMPENSATION ACT, 1897. 215 solatium in respect of the death of the workman, as were wholly or in part dependent upon the earnings of the workman at the time of his death. (3.) A workman employed in a factory which is a shipbuilding yard shall not be excluded from this Act by reason only that the accident arose outside the yard in the course of his work upon a vessel in any dock, river, or tidal water near the yard. 8. — (1-) This Act shall not apply to persons in the naval or military service of the Crown, but otherwise shall apply to any employment by or under the Crown to which this Act would apply if the employer were a private person. (2.) The Treasury may, by warrant laid before Parliament, modify for the purposes of this Act their warrant made under section one of the Superannuation Act, 1887, and notwithstanding anything in that Act, or any such warrant, may frame a scheme with a view to its being certified by the Registrar of Friendly Societies under this Act. 9, — Any contract existing at the commencement of this Act, whereby a workman relinquishes any right to compensation from the employer for personal injury arising out of and in the course of his 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 givKi at the commencement of this Act. 10. — (!•) This Act shall come into operation on the first day of July one thousand eight hundred and ninety-eight. (2.) This Act may be cited as the Workmen's Compensation Act, 1897. 216 WORKMEN S COMPBXSATION ACT, 1897. SCHEDULES. FIRST SCHEDULE. Scale and Conditions of Compensation. Scale. (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 at the time of his death, a sum equal to his earnings in the employment of the same employer during the three years next preceding the injury, or the sum of one hundred and fifty pounds, whichever of those sums is the larger, but not exceeding in any case three hundred pounds, provided that the amount of any weekly payments made under this Act shall be deducted from such sum, and if the period of the workman's employment by the said employer has been less than the said three years, then the amount of his earnings during the said three years shall be deemed to be 156 times hi& average weekly earnings during the period of his actual employ- ment under the said employer ; (ii.) if the workman does not leave any such dependants, but leaves any dependants in part dependent upon his earnings at the time of his death, such sum, not exceeding in any case the amount payable under the foregoing provisions, as may be agreed upon, or, in default of agreement, may be determined, on arbitration under this Act, to be reasonable and proportionate to the injury to the said dependants ; and WORKMEN'S COMPENSATION ACT, 1897. 217 (iii.) if he leaves no dependants, the reasonable expenses of his medical attendance and burial, not exceeding ten pounds ; (b) -where total or partial incapacity for work results from the injury, a weekly payment during the incapacity after the second week not exceeding fifty per cent, of his average weekly earnings during the previous twelve months, if he has been so long employed, but if not, then for any less period during which he has been in the employment of the same employer, such weekly payment not to exceed one pound. (2.) In fixing the amount of the weekly payment, regard shall be had to the difference between the amouQt of the average weekly earnings of the workman before the accident and the average amount which he is able to earn after the accident, and to any payment not being wages which he may receive from the employer in respect of his injury during the period of his incapacity. (3.) Where a workman has given notice of an accident, he shall, if so required by the employer, submit himself for examination by a duly qualified medical practitioner provided and paid by the employer, and if he refuses to submit himself to such examination, or in any way obstructs the same, his right to compensation, and any proceeding under this Act in relation to compensation, shall be suspended until such examination takes place. (4.) The payment shall, in case of death, be made to the legal personal representative of the workman, or, if he has no legal personal representative, to or for the benefit of his dependants, or, if he leaves no dependants, to the person to whom the expenses are due ; and if made to the legal personal representative shall be paid by him to or for the benefit of the dependants or other person entitled thereto under this Act. (5.) Any question as to who is a dependant, or as to the amount payable to each dependant, shall, in default of agreement, be settled by arbitration under this Act. (6.) The sum allotted as compensation to a dependant may be invested or otherwise applied for the benefit of the person entitled 218 WORKMEN'S COMPENSATION ACT, 1897. thereto, as agreed, or as ordered by the committee or other arbitrator. (7.) Any sum which is agreed or is ordered by the committee or arbitrator to be invested may be invested in whole or in part in the Post Office Savings Bank by the registrar of the county court in his name as registrar. (8.) Any sum to be so invested may be invested in the purchase of an annuity from the National Debt Commissioners through the Post Office Savings Bank, or be accepted by the Postmaster-General as a deposit in the name of the registrar as such, and the provisions of any statute or regulations respecting the limits of deposits in savings bank, and the declaration to be made by a depositor, shall not apply to such sums. (9.) No part of any money invested in the name of the registrar of any county court in the Post Office Savings Bank under this Act shall be paid out, except upon authority addressed to the Postmaster-General by the Treasury or by the judge of the county court. (10.) Any person deriving any benefit from any moneys invested in a post office savings bank under the provisions of this Act may, nevertheless, open an account in a post office savings bank or in any other savings bank in his own name without being liable to any penalties imposed by any statute or regulations in respect of the opening of accounts in two savings banks, or of two accounts in the same savings bank. (11.) Any workman receiving weekly payments under this Act shall, if so required by the employer, or by any person by whom the employer is entitled under this Act to be indemnified, from time to time submit himself for examination by a duly qualified medical practitioner provided and paid by the employer, or such other person; but if the workman objects to an examination by that medical practitioner, or is dissatisfied by the certificate of such practitioner upon his condition when communicated to him, he may submit himself for examination to one of the medical practitioners appointed for the purposes of this Act, as mentioned in the Second Schedule to this Act, and the certificate of that medical practitioner WORKMEN'S COMPENSATION ACT, 1897. 219 as to the condition of the workman at the time of the examination shall be given to the employer and workman, and shall be con- clusive evidence of that condition. If the workman refuses to submit himself to such examination, or ia any way obstructs the same, his right to such weekly payments shall be suspended until such examination has taken place. (12.) Any weekly payment may be reviewed at the request either of the employer or of the workman, and on such review may be ended, diminished or increased, subject to the maximum above provided, and the amount of payment shall, in default of agreement, be settled by arbitration under this Act. (13.) Where any weekly payment has been continued for not less than six months, the liability therefor may, on the application by or on behalf of the employer, be redeemed by the payment of a lump sum, to be settled, in default of agreement, by arbitration under this Act, and such lump sum may be ordered by the com- mittee or arbitrator to be invested or otherwise applied as above mentioned. (14.) A weekly payment, or a sum paid by way of redemption thereof, shall not be capable of being assigned, charged, or attached, and shall not pass to any other person by operation of law, nor shall any claim be set off against the same. (15.) Where a scheme certified under this Act provides for payment of compensation by a friendly society, the provisions of the proviso to the first sub-section of section eight, section sixteen, and section forty-one of the Friendly Societies Act, 1896, shall not apply to such society in respect of such scheme. (16.) In the application of this schedule to Scotland the expres- sion " registrar of the county court " means " sheriff clerk of the county," and " judge of the county court " means " sheriff." (17.) In the application of this Act to Ireland the provisions of the County Officers and Courts (Ireland) Act, 1877, with respect to money deposited in the Post Office Savings Bank under that Act shall apply to money invested in the Post Office Savings Bank uDder this Act. 220 WORKMEN'S COMPENSATION ACT, 1897. SECOND SCHEDULE. Arbitration. The following provisions shall apply for settling any matter which under this Act is to be settled by arbitration : — (1.) If any committee, representative of an employer and his workmen exists with power to settle matters under this Act in the case of the employer and workmen, the matter shall, unless either party objects, by notice in writing sent to the other party before the committee meet to consider the matter, be settled by the arbitration of such committee, or be referred by them in their discretion to arbitration as hereinafter provided. (2.) If either party so objects, or there is no such committee, or the committee so refers the matter or fails to settle the matter within three months from the date of the claim, the matter shall be settled by a single arbitrator agreed on by the parties, or in the absence of agreement by the county court judge, according to the procedure prescribed by rules of court, or if in England the Lord Chancellor so authorises, according to the like procedure, by a single arbitrator appointed by such county court judge. (3.) Any arbitrator appointed by the county court judge shall, for the purposes of this Act, have all the powers of a county court judge, and shall be paid out of moneys to be provided by Parlia- ment in accordance with regulations to be made by the Treasury. (i.) The Arbitration Act, 1889, shall not apply to any arbitra- tion under this Act ; but an arbitrator may, if he thinks fit, submit any question of law for the decision of the county court judge, 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, shall be final, unless within the time and in accordance with the conditions prescribed by rules of the Supreme Court either party appeals to the Court of Appeal ; and the county court judge, or the arbitrator appointed by him, shall, for the purpose of an arbitration under this Act, have the same powers of WORKMEN'S COMPENSATION ACT, 1897. 221 procuring the attendance of witnesses and the production of docu- ments as if the claim for compensation had been made by plaint in the county court. (5.) Rules of court may make provision for the appearance in any arbitration under this Act of any party by some other person. (6.) The costs of and incident to the arbitration and proceedings connected therewith shall be in the discretion of the arbitrator. The costs, whether before an arbitrator or in the county court, shall not exceed the limit prescribed by rules of court, and shall be taxed in manner prescribed by those rules. (7.) In the case of the death or refusal or inability to act of an arbitrator, a Judge of the High Court at Chambers may, on the application of any party, appoint a new arbitrator. (8.) Where the amount of compensation under this Act shall have been ascertained, or any weekly payment varied, or any other matter decided, under this Act, either by a committee or by an arbitrator or by agreement, a memorandum thereof shall be sent, in manner prescribed by rules of court, by the said committee or arbitrator, or by any party interested, to the registrar of the county court for the district in which any person entitled to such com- pensation resides, who shall, subject to such rules, on being satisfied as to its genuineness, record such memorandum in a special register without fee, and thereupon the said memorandum shall for all purposes be enforceable as a county court judgment. Provided that the county court judge may at any time rectify such register. (9.) Where any matter under this Act is to be done in a county court, or by to or before the judge or registrar of a county court, then, unless the 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 con- cerned reside, or if they reside in different districts the district in which the accident out of which the said matter arose occurred, without prejudice to any transfer in manner provided by rules of court. (10.) The duty of a county court judge under this Act, or of an arbitrator appointed by him, shall, subject to rules of court, be part 222 WORKMEN'S COMPENSATION ACT, 1897. of the duties of the county court, and the officers of the court shall act accordingly, and rules of court may be made both for any purpose for which this Act authorises rules of court to be made, and also generally for carrying into effect this Act so far as it affects the county court, or an arbitrator appointed by the judge of the county court, and proceedings in the county court or before any such arbitrator, and such rules may, in England, be made by the five judges of the county courts appointed for the making of rules under section one hundred and sixty-four of the County Courts Act, 1888, and when allowed by the Lord Chancellor, as provided by that section, shall have full ejffiect without any further consent. (11.) No court fee shall be payable by any party in respect of any proceeding under this Act ia the county court prior to the award. (12.) Any sum awarded as compensation shall be paid on the receipt of the person to whom it is payable under any agreement or award, and his solicitor or agent shall not be entitled to recover from him, or to claim a lien on, or deduct any amount for costs from, the said sum awarded, except such sum as may be awarded by the arbitrator or county court judge, on an application made by either party to determine the amount of costs to be paid to the said solicitor or agent, such sum to be awarded subject to taxation and to the scale of costs prescribed by rules of court. (13.) The Secretary of State may appoint legally qualified medical practitioners for the purpose of this Act, and any committee, arbi- trator, or judge may, subject to regulations made by the Secretary of State and the Treasury, appoint any such practitioner to report on any matter which seems material to any question arising in the arbitration ; and the expense of any such medical practitioner shall, subject to Treasury regulations, be paid out of moneys to be pro- vided by Parliament. (14.) In the application of this schedule to Scotland — (a.) "Sheriff" shall be substituted for "county court judge," " sheriff court " for " county court," " action " for " plaint," " sheriff clerk " for " registrar of the county court," and " act of sederunt " for " rules of court : " WORKMEN'S COMPENSATION ACT, 1897. 223 (b.) Any award or agreement as to compensation under this Act may be competently recorded for execution in the books of council and session or sheriff court books, and shall be enforce- able in like manner as a recorded decree arbitral : (c.) Any application to the sheriff as arbitrator shall be heard, tried, and determined summarily in the manner provided by the fifty-second section of the Sheriff Courts (Scotland) Act, 1876, save only that parties may be represented by any person authorised in writing to appear for them, and subject to the declaration that it shall be competent to either party within the time and in accordance with the conditions prescribed by act of sederunt to require the sheriff to state a case on any question of law determined by him, and his decision thereon in such case may be submitted to either division of the Court of Session, who may hear and determine the same finally, and remit to the sheriff with instruction as to the judgment to be pronounced. (15.) Paragraphs four and seven of this schedule shall not apply to Scotland. (16.) In the application of this schedule to Ireland the expression " county court judge '' shall include the recorder of any city or town. 224 LIST OF OCCUPATIONS CERTIFIED BY THE SECRE- TARY OF STATE TO BE DANGEROUS, AND IN WHICH SPECIAL RULES ARE TO BE OBSERVED. Processes in The manufacture of white lead. „ „ paints and colours. „ „ lucifer matches, except when made with red or amorphous phosphorus. „ ,, earthenware. ,, „ explosives in which di-nitro benzole is used. „ „ red, orange, or yellow lead, extraction of arsenic, enamelling of iron plates. Chemical works. Quarries. Lead smelting. The tinning and enamelling of iron hollow-ware. Electric accumulator works. Flax mills and linen factories. The tinning and enamelling of iron hollow-ware and cooking utensils. Which yellow chroma te of lead is used, or in which goods dyed with it undergo the process of bundling or noddling, winding, weaving, or any other treatment. Mixing and casting of brass, gun, bell, white and delta metals, phosphor bronze and manilla mixture. Sorting wool, goat hair or camel hair, and processes incidental thereto. 225 APPENDIX C. LIST OF FOEMS. A. UNDER THE WORKMEN'S COMPENSATION ACT, 1897. Forms of: — (1.) Notice of Accident. (2.) Application for Certificate to Scheme. B. UNDER THE EMPLOYERS' LIABILITY ACT, 1880. Forms of: — (1.) Notice of Injury. (2.) Particulars of Demand. (3.) Such Particulars where the Action is also brought under Lord Campbell's Act. (4.) Affidavit to be used upon j^n Application for A Writ of Certiorari. (5.) Interrogatories. (6.) Answers thereto. (7.) Notice of Special Defences. (8.) Notice of Payment into Court. (9.) Application for a New Trial. (10.) Notice of Appeal. 15 226 FORMS. UNDER THE WORKMEN'S COMPENSATION ACT, 1897. (1) FORM OF NOTICE OF ACCIDENT. Sir, Workmen's Compensation Act, 1897. I beg to give you notice that A. B. [if killed, insert " late "] of [here insert addressl on the [here insert date of accident"] at the premises known as [insert address or description of premises'] and whilst a workman in your employment [or, " whilst employed as a workman by one C. D. upon such premises "] sufEered an accident whereby he was injured [or " killed "] by reason of : [here insert in ordinary language the cause of the accident, as for instance] (1) The falling of a girder upon his foot ; or (2) The neghgence of one E. F., a workman in the employ of G. H. & Co., in starting a lift at which the said A. B. was at work, without warning, whereby the arm of the said A. B. was crushed. or as the case may he. Dated the day of 18 Yours truly, [Signature of Solicitors or Agents]. To Mr. X. Y. FOBMS. 227 (2) APPLICATION FOR CERTIFICATE TO SCHEME. Title of Scheme Nature of Employment Situation of Works This application is made by the undersigned employer and workmen. The undersigned workmen have been authorised to join in it by out of the total number of workmen in the employment. [^State how authority was given. The statement should be authenticated.'] The following is a comparison of the provisions of the scheme with those of the Act : — Scale of Compensation. By Act. By Scheme. On death of a workman leaving i dependants wholly dependent, j On death of a workman leaving ( dependants in part dependent. | On death of a workman leaving no ) dependants. j During incapacity for work after second week. £150 to £300, sub- ject to the con- ditions mentioned in the Act. Compensation pro- portionate to the injury. Not exceeding £10. Not exceeding 60 per cent, of earnings and not exceeding £1 per week. 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 ll. 228 FORMS. The scheme contains no obligation upon the workmen to join the scheme as a condition of their hiring. The scheme has been actuarially [valued andi] reported upon by Mr. , and a copy of his report is lodged herewith. The views of the employer are as follow : — (Signature) Employer. [Where more than one employer joins in the scheme, the form should be modified accordingly, and all should sign it.'] The views of the undersigned workmen are as follows : — (Signatures) >■ Workmen. FORMS. 229 UNDER THE EMPLOYERS' LIABILITY ACT, 1880. (1) FORM OF NOTICE OF INJURY. Sir, Employers' Liability Act, 1880. I beg to give you notice that A. B. [if killed insert " late "] of [insert address] at the premises known as [Jill in address or description'] and whilst a workman in your employ was injured [or " killed "] by reason of : [here insert in ordinary language the cause of the accident, as for exampW] (1) A bale of wool being allowed to fall upon the said A. B. by reason of the brake of a crane, then being used for the purpose of unloading the forehold of your steamship the "Ibex," refusing to act, such defect in its condition not having been discovered or remedied owing to the negligence of one C. D. ; or, (2) The negligence of one C. D. in allowing a crane to be worked over the forehold where the plaintifE was when such crane was in a defective condition by reason of its brake being out of order as the said CD. knew or ought to have known. Dated this day of 189 Yours truly, [Signature of Solicitor or Agent]. To Mr. X. Y. 230 FORMS. (2) FORM OF PARTICULARS OF DEMAND. No. of Plaint. IN the County Court of holden at Between A. B. [if an infant add " by C. D. his next friend "] Plaintiff, and B. F Defendant. Particulabs of Demand. The plaintiff claims £ damages under the Employers' Liability Act, for that he on the day of 189 , then being a workman in the defendant's employ, was injured : [Here insert cause of injury, i.e., defect and negligence, as for example.'] (1.) By reason of a defect in the condition of a certain crane used in the business of the defendant to unload the forehold of the defendant's steam- ship " Ibex," the brake of which, by reason of its being in such defective condition as aforesaid, refused to act, whereby a bale of wool was allowed to fall into the said forehold and to strike and injure the plaintiff who was lawfully at work therein. Such defective condition of the said crane had not been discovered or remedied owing to the negligence of one 6. H., a person in the service of the defendant and entrusted by him with the duty of seeing that the said crane was in proper condition. (2.) By reason of the negligence of the said G. H., a person in the service of the defendant and entrusted by him with the duty of superin- tendence, in allowing the said crane to be used as aforesaid in its said defective condition when the plaintiff was in the said forehold as aforesaid. (3.) By reason of the negligence of the said G. H. in ordering or directing the plaintiff to work in the said forehold beneath tbe beam of the said crane, such crane being in the condition aforesaid. And in the alternative. (4.) The plaintiff claims £ damages for that the defendant allowed the work of unloading his said steamship to be con- ducted on a system which was dangerous and improper as he well knew. FORMS. 231 (5.) The injuries of the plaintifE are linsert injuries.] Particulars of Special Damage. Medical attendance. Nursing. Extra nourishment. Loss of weeks' wages at 30s. a week, which loss is still continuing. [^Signature of plaintiff's solicitor.] Solicitor for the above-named plaintiff A. B., who will accept service of all proceedings on behalf of the above-named plaintifE at his office at [insert business address of solicitor.] Dated this day of 189 . To the Registrar of the Court and to the Defendant. 232 FOBMS. UNDER LORD CAMPBELL'S ACT {The Fatal Accidents Act, 1846) and the EMPLOYERS' LIABILITY ACT, 1880. (3) FORM OF PARTICULARS OF DEMAND. No. of Plaint IN the County Court of holden at Between A. B. (widow of C. D., deceased) Plaintiff, and E. F Defendant. Particulars of Demand. (1.) The plaintiff claims £ damages for the loss which she and her two children have sustained by reason of the death of C. D. as hereinafter mentioned. (2.) She is the widow of the said C. D., late of {^insert late address] and is suing on behalf and for the benefit of herself and her two children K. and L., aged respectively seven and ten years. (3.) On the day of 18 the said C. D., then being a workman in the defendant's employ, was killed by a bale of wool falling upon his head while lawfully woi'king in the forehold of the defendant's steamship " Ibex.'' (4.) The said accident happened [insert cause of accident as in paragraphs 1,2,3 and 4, in the preceding form, with the alterations rendered necessary by the result of the accident being death instead of injury'] . (5.) The said C. D. at the time of his death was earning thirty shillings a week and the plaintiff and her said two children were entirely dependent upon him for their support. (6.) By reason of the premises she and her said two children have suffered damage. [Signature of plaintiff's solicitor.] solicitor for the above-named plaintiff, &c. [as in preceding form]. Dated this day of 189 To the Registrar of the Court and to the Defendant. FORMS. 233 (4) FORM OF AFFIDAVIT TO BE USED UPON AN APPLICATION FOR A WRIT OF CERTIORARI. IN the High Court of Justice. Queen's Bench Division. I, A. B., of [here fill in address and description of deponent] make oath and say as follows : — 1. On the [here fill in date] 189 , a summons was issued out of the County Court of holden at , a sealed copy of which is now produced and shown to me and marked A. B. 1. 2. The paper writing now produced and shown to me is a copy of the Particulars of Demand aunexed to such summons, and the said action com- menced thereby is brought under the provisions of the Employers' Liability Act, 1880 [and the Fatal Accidents Act, 1846]. 3. The plaintifEs in such actions are [here insert number of plaintiffs if more than one, if only one this paragraph may be omitted]. 4. The total amount claimed is £ 5. [Here insert a short account of the accident.] 6. [Here insert the scientific evidence necessary.] 7. I verily believe that a jury summoned from the district of the said County Court would not be competent to properly try the said action. 8. [Here set out the difficult questions of law.] 9. [Here set out the reasons for believing that a Jury will not try the action impartially, with a statement of deponent's belief to that effect.] 10. I verily believe that the defendants have a good defence to this action upon the merits thereof. Sworn, &c. 234 POEMS. (5) FORM OF INTBRROGATOBIES. No. of Plaint IN the County Court. Between A. B PlaintifE, and C. D. &Co Defendants. Interrogatories on behalf of the above-named plaintiff A. B. for the examination of the above-named defendants C. D. & Co. (a). (1.) What is the name of the person (if any) entrusted by you with the duty of seeing that the ways, works, machinery, or plant connected with or used in your business were in proper condition ? (2.) Was not E. F. a person entrusted by you with the duty of superin- tendence ? If not, state who was so entrusted by you. (3.) Was not one A. B. in your employ at the time of the accident, a person to whose orders the plaintiff was bound to conform ? The defendants, or one of them [^or their secretary\ are required to answer all the above interrogatories, and so far- as their [or his] personal knowledge does not extend to make enquiry and to make answer to the best of their [or his] knowledge, information and belief from the informa- tion so obtained. (a) The questions are merely specimens of what may be asked. (6) FORM OF ANSWER TO INTERROGATORIES. (Heading as in Preceding Form.) In answer to the said interrogatories I \_E. F., a memher of the said defendant s firm, or one of the above-named defendants, or the secretary to the defendant Company] say that I have no personal knowledge of the matters therein referred to but depose to the best of my knowledge, information, and belief. Or, In answer to the said interrogatories I, the above-named defendant, make oath and say as follows : — Sworn, &c. FOEMS. 235 (7) FORM OF NOTICE OF SPECIAL DEFENCE. (Heading as in Form 5.) TAKE NOTICE that the defendant intends at the hearing of this action to give in evidence, and rely upon the following ground[s] of defence. Dated this day of 189 . [^Signature of defendant or his solicitor.] To the Registrar of the Court. Ground [s] of Defence. That no notice of injury was given to the defendant pursuant to sections 4 and 7 of the Employers' Liability Act, 1880 (43 & 44 Vict. c. 42, ss. 4, 7). That the injury complained of [^or, "the death of the deceased"] took place on the day of 189 , more than 6 months [or " 12 months "] before the commencement of this action, and that the plaintiff's claim is barred by the statute 43 & 44 Vict. c. 42, s. 4, and 9 & 10 Vict. c. 93, s. 3. (8) FORM OF NOTICE OF PAYMENT INTO COURT WITH A DENIAL OF LIABILITY. (Heading as in Form 5.) TAKE NOTICE that the above-named defendant has paid into Court the sum of £ in satisfaction of the whole of the plaintiff's claim herein. And further take notice that notwithstanding such payment the defendant denies his liability. And further take notice that the address of the said defendant is as follows : — [state the address] Dated this day of 189 . [Signature of defendant or of his solicitor.] To the Registrar of the Court and to A. B., the above-named plaintiff. 236 FORMS. (9) FORM OF APPLICATION FOR A NEW TRIAL. (Heading as in Form 5.) TAKE NOTICE that on the day of 189 , at the sitting of the Court at o'clock in the forenoon or so soon thereafter as this application can be heard, this Court will be moved on behalf of the Iplaintif] for an order directing that the verdict and judgment entered herein for the [defendanti may be set aside and a new trial had between the parties, upon the following groimds (6) \_Insert grounds upon which the order for a new trial is moved for. See ante p. 118.] Dated this day of 189 . [Signature of (^plaintiff's) solicitor.'] solicitor for the [plaintiff']. To the Registrar of the Court and to the [defendant] (i) For the rules relating to applioations for new trials, see ante p. 118. (10) FORM OF NOTICE OF APPEAL. IN the High Court of Justice. Queen's Bench Division. On Appeal from the County Court. Between A. B PlaintifE, and CD Defendant. TAKE NOTICE that the Divisional Court will be moved on the day of 189 , at 10-30 o'clock of the forenoon or so soon thereafter as counsel can be heard, by Mr. of counsel on behalf of the [defendant] for an order directing that the verdict and judgment for the [plaintiff^ entered herein on the day of 189 , may be set aside and judgment entered for the [defendant], or that a new trial may be had between the parties upon the following grounds : — [Here insert (he grounds upon which the motion is made.] Dated the day of 189 . [Signature of the defendant's solicitors.] To the plaintifE and to E. F. his solicitor. 237 INDEX. ABATEMENT OF ACTION, on death of plaintifE or defendant, 4, 63. effect of Lord Campbell's Act, 5, 78. ACTION, at common law, 1. under the Employers' Liability Act, 19. under the Factory and Workshop Acts, 70. under Lord Campbell's Act, 78. See " Practice and Procedure," 109. independently of Workmen's Compensation Act, when it may be brought, 132, 133, 208. costs when unsuccessful, 133, 209. ANNUITY, how to be estimated in damages, 85. ANSWERS TO INTBEEOGATORIES, form of, 234. APPEAL, in action under Employers' Liability Act, 119. only on a question of law, 119. which must be raised at the trial, 120. judges' notes, 121. time for appeal, 119. security for costs, 121. to Court of Appeal by leave, 132. form of notice, 236. under the Workmen's Compensation Act, from arbitrators to judge by special case, 136, 137, 220. from county court judge to Court of Appeal, 137, 220. APPLICATIONS, in a county court action, 117. for a writ of certiorari. 111. form of affidavit in, 233. for a new trial, 118. form of notice of, 236. APPRENTICES, - when " workmen " under E.L.A., 21, 22, 163. are "workmen" under W.C.A., 128, 214. 238 INDEX. ARBITRATION UNDER WORKMEN'S COMPENSATION ACT, voluntary, 135, 220. compulsory, 136, 220. ARBITRATOR, voluntary — appointment of, 135, 220. payment of, 136. powers of, 135, 136. compulsory — appointment of, 136, 220. payment of, 137, 220. powers of, 137, 220. questions to be settled by, 138, 220. county court judge as, 136, 138, 220. ASSESSORS, under E.L.A., 115, 186. ASSURANCE, how afEected by W.C.A., 158, 159, 212. ASSURANCE MONIES, how to be estimated in damages, 84. AWARD, registration of, 141, 221. enforcement of, 141, 221. BYE-LAWS, improper, 57, 184. BUILDINGS, to which the Workmen's Compensation Act applies, 129, 131, 213. to which the Factory Acts apply, 198, 199. BURIAL EXPENSES, cannot be recovered under Lord Campbell's Act, 82. under the Workmen's Compensation Act, 144, 217. CAMPBELL'S ACT (LORD), a distinct cause of action, 78. persons entitled to sue, 79, 85. time for commencing action, 86. only one action for one subject matter of complaint, 85. damages, for pecuniary loss only, 82. no allowance for grief, 82. or funeral or mourning expenses, 82. nominal, are not sufficient, 82. assurance money to be considered, 84. annuities to be estimated, 85. apportionment by jiiry, 79, 87. text of the Act, 188. INDEX. 239 CAMPBELL'S ACT AMENDMENT ACT (LORD), payment into court, 86, 191. persons entitled to sue, 85. text of the Act, 190. CERTIORARI, application for writ of, HI. summons, 112. affidavit, 112. form, 233. CHILDREN, whether " common employment " applies to, 17, 18. contributory negligence of, 18, 95. CLAIM UNDER WORKMEN'S COMPENSATION ACT, time for making, 138, 210. probably must be in writing, 141. COMMITTEE, as arbitrators, 135. may order compensation money to be invested, 146, 217. COMMON EMPLOYER, must exist if defence of common employment is to be sustained, 9, 10. COMMON EMPLOYMENT, doctrine of, 6, 7, 9. must be common work, 9, 12. must be under a common master, 10. depends upon contract, 9, 10, 11. risks must be naturally incident to the employment, 12. not affected by the E.L.A., 61, 62. COMMON LAW, liability of master for negligence at, 2, 4. for not supplying reasonably proper machinery or tools, 4, 8. under the Factory Acts, 70. fencing of machinery, 72, 200. superintendence, 75, 203. COMMUTATION OF WEEKLY PAYMENTS, under the W.C.A., cannot be charged or attached, 148, 219. effected by arbitration, 149, 219. COMPENSATION, under the E.L.A., limit of, 67, 68, 178, 185. "earnings," 67. money earned in overtime, 67. 240 INDEX. COMPENSATION (^continued). under Lord Campbell's Act, the damages, 78, 82. under the W.C.A., recovery of, 138, 210. limit of, in case of death, 143, 216. in case of injury, 145, 217. claim for, 138, 210. when claims to be made, 138, 210. assessment of, 143, 217. investment of, 146, 217, 218. none for first fortnight after injury, 145, 208. to whom payable, 142, 145, 217. weekly, may not be charged or attached, 149, 219. COMPULSORY ARBITRATION, the tribunals, 136, 220. CONTRACTING OUT, out of Employers' Liability Act, 20. out of Workmen's Compensation Act, 159, 211. volenti nonfit injuria, 100. CONTRACTOR, action against, 156, 212. when " undertakers " liable to workmen in the place of the contractor, 156, 212. hability to indemnify " undertakers," 157, 212. CONTRACT OF EMPLOYMENT, at common law, 3. duty of employer, 94. CONTRIBUTORY NEGLIGENCE, principle of, 95, 96. when a question for the judge, 96, 100. when for the jury, 100. where a breach of statutory duty exists, 96. burden of proof, 96, 99. on the part of children, 95. " serious and wilful misconduct," 131, 134, 209. under E.L.A., sec. 2 (3), 41, 42, 184. CORPORATION, may be employer, 41, 127, 187, 214. COUNTY COURT, action under E.L.A. must be commenced in, 110, 186. INDEX. 241 COUNTY COURT JUDGE, in an action under the B.L.A., appeal from, on point of law, 119. notes of, 120, 121. in arbitration under'W.C.A., must settle matters in dispute, 136, 220. what matters, 138, 217, 220. may appoint an arbitrator, 137, 220. power to award costs, 137, 221. power to award a particular sum for costs, 142, 222. power to deduct costs of unsuccessful action from com- pensation, 133, 209. power to order compensation to be invested, 146, 217. power to rectify register of county court, 141, 221. power to decide question of law, 137, 220. appeal to Court of Appeal, 137, 220. CROWN, W.C.A. apphes to "workmen" of, 128, 215. scheme for " workmen " of, 161, 215. naval and military services not afEected by W.C»A., 128, 215. DAMAGES, ■ independently of the W.C.A. as compared with compensation under W.C.A., 149 et seq. under W.C.A., limits of, 143, 145, 216, 217. under the B.L.A., limits of, 67, 178, 185. excess or inadequacy of damages is aground for a new trial, 118. DANGER, when it constitutes a " defect," 30, 35. DANGEROUS PARTS OF MACHINERY, what are, 72, 73. must be fenced, 72, 199. DANGEROUS EMPLOYMENTS, Ust of, 224. special rules relating to, 76, 205. DEATH OF A PLAINTIFF OR DEFENDANT, efEect on the action, 4, 63. Lord Campbell's Act, 5, 78. DEATH OF AN EMPLOYER, does not bar a claim under the W.C.A., 127, 214, does bar a claim under the E.L.A., 63, and at common law, 4. 16 242 IXDEX. DEFECT. common law liability for, 4. only if due to negligence, 4, 8. under the Employers' Liability Act, in the condition of the ways, etc., 29, 166. if plant unsuitable, 30, 167. if undue danger, 30, 35. only if due to negligence, 31, 32, 35, 166, 168. DEFECTIVE NOTICE, of injury (E.L.A.), 63, 65, 180, 187. of accident (W.C.A.), 138, 210. DEFENCES, special defences, 114. forms of notice, 235. DEFINITIONS under the Employers' Liability Act, employer, 41, 187. person entrusted with the duty of superintendence, 43, 187. workman, 20, 21, 187. under the Workmen's Compensation Act, dependants, 128, 214. employer, 127, 214. engineering work, 130, 214. factory, 129, 213. mine, 130, 213. quarry, 130, 214. railway, 129, 213, undertakers, 126, 214. workman, 127, 214. DEMAND, for a jury, 115. when to be made in an action under E.L.A., 116. DEMAND (PARTICULARS OF), what they must contain, 110. in an action under Lord Campbell's Act, 111. forms of, 230, 232. DEPENDANTS, definition of, 128, 214. DOCKS, DOMESTIC SERVANTS, the EL. A. does not apply to, 21, 163, INDEX. 243 EMPLOYER, definition (E.L.A.), 41, 187. definition (W.C.A.), 127, 214, his duties, 94. his liability at common law, 1. for not supplying reasonably proper tools, 4, 8. where workman is lent to another master, 13, 22. where a stranger assists his servants, 15. when joining in work himself, 16, 17. see also Employers' Liability Act, iiifra. under the Workmen's Compensation Act, his civil UabiUty is not affected, 132, 208. on bankruptcy, 158, 212. on winding up, 158, 212. his liability for sub-contractors, 156, 212. for acts of a stranger, 154, 213. his rights against sub-contractors, 157, 212. and against strangers, 154, 213. EMPLOYERS' LIABILITY ACT, status of plaintiff, 20, 163. injury to plaintiff, 27. cause of the injury, defect in the condition of, 29, 35, 166. ways,. 35, 166. works, 36, 166. machinery, 40, 166. plant, 40, 166. connected with or used, 36 et seq., 41. negligence of a superintendent, 42 et seq , 170. negligence of person in command, 47, 172. bye-laws, 57, 174. negligence of a person in charge or control of a signal, points, locomotive engine or train, 60, 176. upon a railway, 60, 61, 177. right of compensation, 61. notice of injury, 63, 178, 180. the limitation of the action, 66, 178. the damages, 67, 178. EMPLOYERS AND WORKMEN ACT, definitions, 21, 22, 163. EMPLOYMENTS TO WHICH THE WORKMEN'S COMPENSATION ACT APPLIES, railway, 129, 213. factory, 129, 213. mine, 130, 213. quarry, 130, 214. engineering work, 130, 214. building, 129, 213. ENGINEERING WORK, definition of, 130, 214. 16. 244 INDEX. EVIDENCE, grounds for a new trial, verdict against the weight of evidence, 118. improper reception or rejection of, 119. discovery of fresh evidence, 119. EVIDENCE OF NEGLIGENCE, at common law, 90. under the E.L.A., 93. FACTOBY, definition of, 129, 192 et seq. FACTORY AND WORKSHOP ACTS, duty to fence machinery, 72, 199. duty towards children, young persons and women under, 75, 203. contributory negligence a defence to breach of duty under, 71, 96. volenti nonflt injuria not a defence, 77, 106. FATAL ACCIDENTS ACT 1846. another name for Lord Campbell's Act, 89. FELLOW-SERVANTS, must have a common master, 9, 10. must be engaged in the same work, 10, 12. grade in the service not important, 11, 12. under the Employers' Liability Act, superintendent, 42, 170. person in command, 47, 172. superintendent of machinery, 84. acting in pursuance of bye-laws, 57, 1741 in charge of a signal, etc., 60, 176. FORMS, under the Workmen's Compensation Act, notice of accident, 226. application for certificate of a scheme, 227. under the Employers' Liability Act, notice of injury, 229. particulars of demand, 230, 232. affidavit to be used upon an application for a writ of certiorari, 233. interrogatories, 234. answers to interrogatories, 234. notices of special defences, 235. notice of payment into court, 235. application for a new trial, 236. notice of appeal, 236. FUNERAL EXPENSES, not recoverable under Lord Campbell's Act, 82. under the Workmen's Compensation Act, 144, 146, 217, INDEX. 245 GOVERNMENT WORKMEN, Workmen's Compensation Act applies to, 128, 215. scheme for, 161, 215. INACCURATE NOTICE, under the Employers' Liability Act, 64, 65, 180, 187. under the Workmen's Compensation Act, 138, 140, 210. INCOMPETENT SERVANTS, master liable for appointing, 8. INFANT, may be a workman, 21. must sue by a next friend, 110. INJURY, what is a personal injury, 27. INSURERS, habiUty on bankruptcy or winding up of assured, 158, 212. INTERROGATORIES, form of, 234. answers to. Form, 234. INVESTMENT OF COMPENSATION MONEY, by order of arbitration tribunal, 146, 217. form of investment, 146, 218. JURY, in action under the E.Ii.A., 114. LATENT DEFECT, employer not liable for, if no negligence, 4. LAUNDRIES, when factories, 130, 197. LICENSEE, duty of owner of premises to, 2, 3. LIMITATION, in the time for commencing proceedings, under the Employers' Liability Act, 66, 185. under Lord Campbell's Act, 86, 189. under the Workmen's Compensation Act, 138, 210. in amount of compensation recoverable, under the Employers' Liability Act, 67, 185. under the Workmen's Compensation Act, 143, 216. 246 INDEX. LOCOMOTIVE ENGINE, what it is, 61, 176. LORD CAMPBELL'S ACT, gives a distinct cause of action, 78, 80. persons entitled to sue, 79, 85. limitation of action, 86, 189. damages, , given to the persons entitled disjunctively, 84. mode of estimating, 82. assurance monies, 84. annuities, 85. apportionment by jury, 87. text of the Act, 188. LOED CAMPBELL'S ACT AMENDMENT ACT, payment into court, 86. persons entitled to sue, 85. text of the Act, 190. MACHINEEY, LIABILITY OF MASTER, at common law, 4. under the Factory and Workshop Acts, 70, 72. under the Employers' Liability Act, when defective, 30 et seq., 166. MANUAL LABOUR, who are engaged in, 25. decisions on these words, 25, 164. must be ejusdem generis with the preceding words, 25. a " workman " under the E.L.A. must be engaged in, 24, 25, 163. not necessary under W.C.A., 128, 214. MASTER, See " Employer." MEDICAL MAN, examination by, 140, 218. after notice of the accident, 140, 217. after the award, 148, 218. definition of, 142. MEDICAL EXPENSES, of deceased person, 144, 217. of examination by employer's medical man, 140, 148, 217, 218. by medical man officially appointed, 142, 218. MEDICAL OFFICERS, appointment of, 142, 222. INDEX. 247 MENIAL SERVANT, definition of, 25, 164. METALLIFEROUS MINES REGULATION ACT, restrictions under, 77. rules, 77. MINE, definition of, 130, 213. owner of, 126, 127. MISDIRECTION, ground for a new trial, 119. MONTH,- in an Act of Parliament means calendar month, 66, 180. MOTION, under E.L.A., appeal must be by motion, 119. form of notice, 236. for a new trial, 118. form of notice, 236. NEGLIGENCE, at common law, 2, 90. must be personal negligence of the master, 2, 4, 910. "res ipsa loquitur" of little effect, 91. definition of, 93. as regards children, 18, 75, 203. under the E.L.A., of superintendent of machinery, 34, 93. of superintendent, 42, 170. of person in command, 47, 172. of person in charge of signals, &c., 60, 176. " res ipsa loquitur " of importance, 93. contributory negligence, a branch of the general law, 95, 96. burden of proof in, 96. of children, 95. NEW TRIAL, notice of application for, 118. form, 236. motion by way of appeal, 119. form, 236. 248 INDEX. NOTICE, of accident under W.C.A., must be in writing, 140. time for giving, 138, 210. want of, does not bar claim, 138, 210. defect, 138, 210. inaccuracy, 138, 210. service, 139, 210. form, 226. of injury under the E.L.A., must be in writing, 64. time for giving, 63, 185. want of notice is a bar in actions for persona injury, 63, 185. not where death ensues, 64, 185. defect or inaccuracy, 65, 186. evidence of intention to mislead, 65. service of, 63, 64, 186. service by post, 63, 186. on a corporation, 64, 187. proof of service, 64, 187. when in more than one document, 64. cases on, 180. form, 229. of motion in a county court, 118. form, 236. of appeal in an action, 119. form, 236. ONUS OF PROOF of negligence, 90. of contributory negligence, 96, 100. ORDERS OR DIRECTIONS, may be implied, 48. when negligent, 47. when accident the result of, 49 et seq., 172. special orders, 57, 175. OWNER OF MINE, definition, 126, 127. PARTICULAR INSTRUCTIONS, must be negligent, 59. PARTICULARS OF DEMAND, contents of, 110. forms of, 230, 232. PARTNERS, firm is liable for liegligence of one partner, 17. INDEX. 249 PAYMENT INTO COURT, notice of, 114. form of notice, 235. PENALTY, to be deducted from compensation, under E.L.A., 69, 185. under W.C.A., 145,209. PERSONAL INJURY, what is, 27. PERSONAL NEGLIGENCE, law not altered on this point, 132, 208. what is, 132, 133. PLAINT, entry of, 110. PLAINTIFFS, who are plaintiffs under Lord Campbell's Act, 79, 85. PLANT, definition of, 40, 167. a horse is, 40, 168. defective if put to improper use, 30, 167. "connected with or used," 41. POINTS, person in charge or control of, 60, 176. PREMISES, when a factory, 192 et seq. PRACTICE AND PROCEDURE : EMPLOYERS' LIABILITY ACT, notice of injury, 63, 109. summons, 110. particulars of demand, 110. removal of action. 111, interrogatories, 113. special defences, 114. payment into court, 114. jury, 114. assessors, 115. interlocutory applications, 117. trial, 117. judgment, 117. application for a new trial, 118. appeal, 119. See " Forms." 250 INDEX. PRACTICE AND PROCEDURE : WORKMEN'S COMPENSATION ACT, disputed liability to be settled by arbitration, 138, 209. in accordance with Schedules I. and II., 135, 209. . notice of accident, when to be given, 138, 210. contents of, 139, 210. to be in writing, 140, 210. service of, 140, 210. service on a company, 140, 210. form, 226. claim for compensation, when to be made, 138, 210. must be in writing, 141. award of compensation, memo, to be sent to county court, 141, 221. registration, without fee, 141, 221. to have the force of a county court judgment, 141, 221. register may be rectified by county court judge, 141, 221. no court fee to be paid prior to the award, 141, 222. payment of sum awarded, to persons entitled, 142, 217. solicitor or agent has no lien, 142, 222. investment of sum awarded, 146, 147, 217. purchase of annuity, 146, 218. medical examination, before the arbitration, 140, 217. after the award, 148, 149, 218. at the option of the employer, 148, 218. or of person paying the compensation, 148, 218. application for a certificate of scheme, 160. form, 227. PROXIMATE CAUSE OF INJURY, actionable negligence must be, 2, 90. contributory negligence, 96. QUARRY, definition of, 130, 214. RAILWAY, under E.L.A. definition, 60, 61, 177. temporary railway is, 61, 177. under W.C.A. definition, 129, 213. RAILWAY COMPANY, under W.C.A. definition, 129, 213. RAILWAY SERVANT, does it include all servants of a railway, 21. under B.L.A., 21. under W.C.A., 128. INDEX. 251 REDEMPTION OP WEEKLY PAYMENTS, how effected, 149, 219. cannot be charged or attached, 149, 219. REGISTRAR OF THE COUNTY COURT, registration of award by, 141, 221. investment of compensation, 146, 217. purchase of annuity, 146, 218. exempt from restrictions imposed by Post OfBce Regulations, 146, 218. REGISTRAR OF FRIENDLY SOCIETIES, power to certify scheme, 159, 211. nature of scheme, 159, 160, 211. withdrawal of certificate, 160, 211. form of application for certificate, 227. REMOVAL OF ACTION, by writ of certiorari. 111. procedure upon, 112. grounds for, 112. difficult in actions under E.L.A., 113. form of affidavit on, 233. BES IPSA LOQUITUR, of little use at common law, 91, 92. effective under the E.L.A., 93. RISK, contract by workman to take risk, 7. volenti nonfit injuria, 100. RULES, under Factory and Workshop Acts, 58, 76, 205. under Mining Acts, 58, 77. to be made in dangerous employments, 76, 205. approval by Government Department, 58, 77. list of dangerous employments, 224. SCALE OF COMPENSATION, under B.L.A., 67, 178, 185. under W.C.A., 143, 145. SCHEME, certificate for, 159, 211. grounds for revoking certificate, 160, 211. as a means of contracting out, 159, 211. form of application for certificate, 227. SEAMEN, are not workmen, 22, 164. 252 INDEX. SECURITY FOR COSTS OP APPEAL, application for, 121. SERIOUS AND WILFUL MISCONDUCT, is a" defence under the W.C.A., 131, 134, 209. SERVANT, contract by, 3, 7, 8. takes the ordinary risks of his employment, 7, 11. SERVICE, of notice of injury under E.L.A., 63, 64, 186. of notice of accident under W.C.A., 139, 210. SPECIAL DEFENCES, notice of, 114. time for, 114. forms, 235. STATUTES, 3 & 4 Vict. c. 97. 58. 9 & 10 Vict. c. 93 (Lord Campbell's Act), 78, 188. 13 & 14 Vict. c. 21. 66. 27 & 28 Vict. c. 95 (Lord Campbell's Act Amendment Act), 78, 190. 35 & 36 Vict. c. 77 (Metalliferous Mines Act), 58, 69, 77, 126. 36 & 37 Vict. c. 48. 129. 38 Vict. c. 17 (Explosives Act), 58. 38 & 39 Vict. c. 90 (Employers and Workmen Act, 1875), 25, 163. 41 Vict. c. 16 (Factory and Workshop Act, 1878), 58, 70, 192, 199, 203. 43 & 44 Vict. c. 42 (Employers' Liability Act, 1880), 41, 80, 100, 183. 44 & 45 Vict. c. 37 (Alkali Act), 58, 59. 50 & 51 Vict. c. 58 (Coal Mines Act, 1887), 58, 69, 77, 127. 51 & 52 Vict. c. 43 (County Courts Act, 1888), 88, 111, 112, 119. 54 & 55 Vict. c. 75 (Factory and Workshop Act, 1891), 58, 70, 201, 205. 57 & 58 Vict. c. 42. 130. 58 & 59 Vict. c. 37 (Factory and Workshop Act, 1895), 58, 70, 197, 201, 206. 59 & 60 Vict. 0. 14. 89. (._ 43_ J29. 60 & 61 Vict, c 37 (Workmen's Compensation Act, 1897), 123 et seq.,208. STATUTORY DEFENCES, See Special Defences, siipra. STRANGER, when defence of common employment applies, 15, 16. under Workmen's Compensation Act, when accident caused by, 154, 213. liable to indemnify employer, 154, 213. right to medical examination of the workman, 148, 218. INDEX. 253 SUB-CONTRACTOES, " independently of the W.C.A., 10. under the W.C.A., when " undertakers" are liable to the workmen in his place, 156, 212. his liability to indemnify "undertakers," 157, 212. SUMMONS, issue of, 110. service of, 110. particulars of demand to be served with, 110. SUPERANNUATION ACT, 1887, warrants imder, 161, 215. SUPERINTENDENT OF WORKMEN, definition of in E.L.A., 42, 43, 187. must not ordinarily be engaged in manual labour, 43. negligence of, 42. cases on, 171. TIME, under the Employers' Liability Act, for giving notice of injury, 63, 185. for commencing action, 66, 185. for serving summons, 110. for summoning jury, 114. for summoning assessors, 115. for notice of application for a new trial, 118. for notice of appeal, 119. for interlocutory applications, 117. under Lord Campbell's Act, for commencing action, 86, 189. under the Workmen's Compensation Act, for giving notice of accident, 138, 210. for making a claim, 138, 210. TRAIN, definition of, 60, 176. person in charge or control of, 60, 177. TRIBUNALS FOR ARBITRATION, voluntary, 135, 220. compulsory, 136, 220. UNDERTAKERS, definition of, 126, 214. liability to workmen of contractors, 156, 212. rights of indemnity, 157, 212. 254 INDEX. VOLENTI NON FIT INJURIA, doctrine of, 100. its true function, 102. does not apply in case of breach of a statutory duty, 106. summary of, 104. VOLUNTARY TRIBUNALS, in an arbiti-ation under the Workmen's Compensation Act, 135, 220. VOLUNTEER, when the defence of common employment applies, 11, 15. when he assists in work in his own right, 15, 16. WANT, of notice of injury (E.L.A.) when a bar to the action, 63, 185. of notice of accident (W.C.A.) is not a bar to the claim, 138, 210.' WAY, definition of, 35. what is a defect in its condition, 35, 36. cases, 166, 168. WEEKLY PAYMENTS, how to be assessed, 145, 217. how varied after award, 148, 219. cannot be charged or attached, 149, 219. commutation of, 149, 219. WORKMEN UNDER THE EMPLOYERS' LIABILITY ACT, definition of, 21, 22, 25, 163, 187. rights in cases of, defect, 29, 166. negligence of superintendent, 42, 170. neghgence of person in command, 47, 172. improper bye-laws, 57, 174. negligence of person in charge of a signal, etc., 60, 176. may contract out of the Act, 24. " may be guilty of contributory negligence, 95. may have voluntarily incurred the danger, 100. WORKMEN UNDER THE WORKMEN'S COMPENSATION ACT, scale of compensation, 143, 216. choice of remedies, 149. may agree on a scheme, 159, 211. remedy against employer, 131, 138, 208. undertaker, 156, 212. stranger, 154, 213. contractor, 156, 212. costs if unsuccessful in an action, 133, 209. remedy on the bankruptcy or winding up of employer, 158, 212. procedure to obtain compensation, 138, 210. " serious and wilful misconduct," 134, 209. INDEX. 255 TVORKMEN'S COMPENSATION ACT, 1897, persons to whom the Act applies, undertakers, 126, 214. employer, 127, 214. workmen, 127, 214. dependants, 128, 214. employments to which it applies, building, 129, 213. railway, 129, 213. factory, 129,213. mine, 130, 213. quarry, 130, 214. engineering work, 130, 214. right and remedy under the Act, in any case, 131, 208. in cases of negligence, 132, 208. the tribunals, voluntary, 135, 220. compulsory, 136, 220. the compensation, how it can be recovered, 138, 210. the amount, in case of death, 143, 216. in case of injury only, 145, 217. application of, 145, 217. varying of, 148, 219. the choice of remedies, 149. the efEect of the Act on third parties, 153, 212, 213. contracting out of the Act, 159, 211 . WORKS, defect in, 29, 36, 167, 169. connected with or used, 36 et xeq. in control of employer, 37, 39, 169. SUPPLEMENT TO THE LAW AND PRACTICE KELATING TO WORKMEN'S COMPENSATION AND EMPLOYERS' LIABILITY. BY W. ELLIS HILL, M.A. (Of the Inner Temple and Northern CircuitJ, BABKISTEE-AT-LAW, LONDON : WATERLOW AND SONS LIMITED, LONDON WALL. 1898. WATEETiOW AWD SONS I.IMITEII, PRINTKRB, DTTNSTABLE AND LOlfDOIf. CONTENTS. PAGE THE PRACTICE IX ARBITRATIONS UNDER THE WORKMEN'S COMPENSATION ACT 1 THE TEXT OF THE RULES PUBLISHED UNDER THE WORKMEN'S COMPENSATION ACT, WITH THE FORilS ' .'.. ' ... 27 THE TEXT OF THE COUNTY COURT RULES IN- " CORPORATED THEREIN WITH THE FORMS .... 89 THE REGULATIONS AS TO MEDICAL REFEREES MADE BY THE SECRETARY OF STATE AND THE TREASURY 101 INDEX 110 LIST OF ABBEEVIATIONS. W.C. & B.L. ... The Law and Practice of Workmen's Com- pensation and Employers' Liability. W.C.A. . . . The Workmen's Compensation Act, 1897. C.C.R County Court Rules, 1889. R.S.C. . . . Rules of the Supreme Court. SUPPLEMENT TO THE LAW AND PRACTICE RELATING TO WOEKMEN'S COMPENSATION AND EMPLOYERS' LIABILITY. PART I. THE PRACTICE IN ARBITRATIONS UNDER THE WORKMEN'S COMPENSATION ACT, 1897. It was stated in the Introduction to the Law and Practice relating to Workmen's Compensation and Employers' Liability, that, before the Workmen's Compensation Act came into operation, Rules of Coui-t would in all probability be issued. These Rules have now been published and (together with the Act and Treasury Regulations and certain of the County Court Rules) contain a complete code of the procedure to be adopted. By the Workmen's Compensation Act two classes of tribunals for arbitration have been created, namely : — (1.) The voluntary tribunals, i.e., a committee or an arbi- trator selected by agreement ; (2.) In default of agreement, the County Court Judge or an arbitrator appointed by him. The Rules published relate, so far as the procedure in the arbitration is concerned, solely to arbitrations before the County Court Judge or the arbitrator appointed by him, leaving the voluntary tribunals and the parties who have selected them to 1 2 WORKMEN'S COMPENSATION AND settle their course of procedure as they may think fit. It is prohahle, however, that the most convenient course for those trihunals to adopt, will be to follow in essentials the practice provided by the Rules for the compulsory tribunals. The Rules, however, contain the necessary provisions for enforcing the awards or orders of the voluntary tribunals, and for regulating the amount of costs which may be awarded by them. It has not been considered necessary to set out in this Supple- ment all the regulations relating to the administrative duties of the Registrar of the County Court ; but it is proposed to state shortly, what has to be done by the different parties to the arbitration in order to safeguard their respective interests, and only to deal with the duties of the judge, arbitrator, and registrar in so far as they affect the parties. It may be said that the Rules start with the assumption that the necessary notice of accident has been duly served («). It is considered that the most convenient course will be to deal with the practice and procedure under the following headings. 1. The county court to be selected. — The county court in which proceedings must be taken is the court of the district in which all the parties reside ; or, if they do not reside in the same district, the court of the district in which the accident happened (6), and where the registrar is mentioned without any further description the registrar of that court is indicated. 2. Filing and service of documents and notices. — A document directed by these Rules to be filed, must be so filed by delivering it at the registrar's office, or by sending it by post addressed to the registrar at his office ; and where a document is so ffled, there must be filed with it, as many copies thereof as there are persons to whom copies are to be («) W.C. & E.L., pp. 138, 210. (*) W.C.A., Sched. n.,cl. 9. EMPLOYERS' LIABILITY. 3 sent by the registrar, and also a further copy for the use of the judge or arbitrator. The registrar may send any document by post. Any person may serve any proceeding, document, or notice by his solicitor, and unless there are any special directions as to the service of a particular document in the Eules, any proceed- ing, document, or notice may be served upon any party or on his solicitor in the same way as the notice of accident may be served (a), that is to say : (a.) By delivering them at the residence or place of business of the person on whom they are to be served ; (b.) By post by a registered letter addressed to the person on whom it is to be served at his last known place of residence or business, and if so served it is to be deemed to have been served at the time when the letter contain- ing the notice could be delivered in the ordinary course of post, and in proving the service it is enough to prove that the documents were properly addressed and registered. (c.) If the employer is a body of persons corporate or unincorporate, the notice must be served by delivering it at, or by sending it by post in a registered letter addressed to the office, or any one of the offices of such body(i). 3. Procedure generally. — Where a party acts by a solicitor any notice, order or decree may be served upon the solicitor (c), and any act to be done by a party may be done, if it can be legally done, by his solicitor or agent (d), and service on a party's solicitor is service on such party, except when the copies or notices mentioned in Rule 14 are served as default summonses (e). Any solicitor acting for a party may give {a) R. 62. (b) W.O.A., sec. 2, sub-sees. 2—5. W.C. & E.L., p. 139. (c) R. 63. C.C.R., 0. XXIII., i. 4. Id) R. 63. C.C.R., 0. LI., r. 1. (e) C.C.R., O. LI., r. 2. See also R. 15 (2). 4 WORKMEN'S COMPENSATION AND notice thereof to the registrar, and thereafter is deemed to be so acting, hut this need not he done hy a solicitor who has filed the request and signed the particulars {a) ; and where the solicitor undertakes the service of any process he must make the necessary copies for the same [h) ; and notice of a change of solicitor is given in the usual way (c). The judge upon affidavit and for sufficient cause may order substituted service (d). 4. Proceedings to be taken befoke the arbitkation w^hether held before the judge or the arbitrator appointed by him : (1.) The parties to the arbitration. — The persons who have the right to take proceedings under the Act are : (i.) The injured workman ; (ii.) If he is killed, his legal personal representative acting on behalf of (a.) The workman's dependants or those claiming to be his dependants ; (b.) Any person to whom he or his legal personal 1 representative was indebted for the expenses of his medical attendance or burial (e) . (iii.) If there is no legal personal representative, then the dependants or such other persons may commence proceedings in their own names (/). If there is a conflict of interest between the dependants, the legal personal representative may apply on behalf of one or some only of such dependants ; but, in that case, the other dependants must be joined as respondents to the application (gr). («) C.C.E., 0. LI., r. 3. (*) /*., r. 4. («) lb., r. 5. {d) lb., r. 6. (e) W.C.A., Sched. I., cl. 1. W.C. & EX., p. 126. (/)R.S(1). (3) K- 4 (3). EMPLOYERS' LIABILITY. 5 The person who institutes the proceedings is called the "applicant," and the person or persons against whom such proceedings are instituted is or are called the " respondent " or " respondents " (a). The application which institutes the proceedings is the filing with the registrar of a " request for arbitration " (6). All persons may be joined in one arbitration as applicants in whom any right to relief in respect of, or arising out of, the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, where, if such persons were applicants in separate arbitrations, any common question of law or fact would arise. The judge or arbitrator may, however, order separate arbitrations or make such order as may be expedient, if such joinder would embarrass or delay the arbitration. The award may be given in favour of one or more of the applicants for the relief he or they may be found entitled to, without any amendment, but the respondent or respondents, although unsuccessful, are entitled, subject to the order of the judge or arbitrator, to any extra costs occasioned by the joinder of any person who is found not entitled to relief (c). The award must be for all the applicants, but the amount and costs ordered to be paid to each applicant or respondent must be set forth in the award, and the costs awarded must be paid to such person and in such manner as the judge or arbitrator may think fit {d). If the respondent fails to pay the several amounts and costs awarded, execution against his goods may issue for the whole, and if the amount levied is insufficient to pay the whole of the compensation awarded, a dividend must be paid to each applicant subject to the provisions relating to costs contained in Rule 47(c). Where there are numerous parties having the same interest, one or more of such parties may take proceedings or may be (a) R. 2 (1). (i) E. 8. {c) B. 3. C.O.R., 0. III., r. la. (d) C.O.E., 0. XLrV., r. 17. (e) lb., 1. 18. 6 WORKMEN'S COMPENSATION AND authorised to resist a claim in the name of the others (a). The authorisation is obtained upon an application to the registrar upon giving two clear days' notice thereof to the applicant, within two clear days of the service of the copy of the request and upon filing an affidavit of the facts, containing also the names, addresses, and occupations of the persons whom the respondent wishes to represent. The registrar may then give him leave to resist the claim on tehalf of one or more of such persons (b). An infant may proceed hy his next friend and resist a claim by a guardian at litem (c) , but a married woman may do both without a husband or next friend being joined (d). Lunatics not so found by inquisition may proceed, or be proceeded against, by their committees or guardians at litetn (e). In all cases any consent given in the course of the arbitration as to the procedure by any committee, guardian or next friend may, by the consent of the judge or arbitrator, be binding upon the person for whom it was given, save only that in the case of a lunatic the consent of the Lord Chancellor or of the Lords Justices sitting in Lunacy is also necessary (/). Co-partners may be proceeded against in the name of their firm, and the registrar may compel them to disclose the names of the partners in the firm (it pp. 59-69 . 8 WOEKMEN'S COMPENSATION AND for the omission must be given {a) ; and when the applicant files his request and particulars he must also deliver to the registrar a copy thereof for the judge or arbitrator and also a copy for each respondent {h). Where the applicant is illiterate and unable to furnish the request, particulars, and copies, they must be filled in by the registrar's clerk (c). So far the proceedings are common to both an arbitration before the judge and to one before an arbitrator appointed by him. 5. Proceedings on akbitration before the judge : (1.) Fixing the time and place of hearing. — It is the duty of the registrar to bring the request and particulars when filed, to the notice of the judge, who then fixes the day and hour of the hearing, and each respondent is entitled to ten clear days' notice thereof {d) . In the ordinary course the arbitration takes place at the county court, but the judge may direct that it shall be held at another place on the application of any party ; who, however, must in such case undertake to provide some other place to the satisfaction of the judge and at his own expense, and must also pay the necessary expenses incurred by the judge and officers of the court in attending the same. If such direction has been given before the notice of the time and place is issued, the place so fixed on is to be the place so notified; but, if the notices have been despatched before the judge has given such direction, the registrar must notify the new place to the parties (e). (2.) Notice of time fixed for the hearing. — As soon as the day is fixed, the registrar must give notice to the applicant stating (a) E. 10 (2). (J) K. 11. (c) E. 12. (d) E. 13 (1). (e) R. 13 (2) to (5). EMPLOYERS' LIABILITY. 9 the day, hour and place fixed, and must also issue similar notices, together with sealed copies of the request and particulars for service upon the respondents. If the latter do not attend at the hearing by themselves or their solicitors in pursuance thereof, such order may he made or proceedings taken as the judge may think just and expedient («). (3.) Service on respondents. The ahove-mentioned copies and notices may he served (b), (i.) By a haiKff of the court ; or, at the request of the applicant or his solicitor, (ii.) By the applicant or by some clerk or servant in his permanent and exclusive employ ; or (iii.) By the applicant's solicitor, or a solicitor acting as agent for such solicitor, or some person in the employ of either of them. Service may be effected (c), (i.) In accordance with the rules as to service of default summonses, that is to say : (a.) Personally within twelve months of their date (d) ; (b.) If the respondents are a firm, it is only necessary to serve one partner personally {e) ; (c.) If they are a corporation aggregate, service must be effected upon the mayor or other head officer, or the town clerk, clerk, treasurer, or secretary of such corporation (/) ; (ii.) By registered post, in the same way as a notice of accident may be served (g) ; Where service is effected otherwise than by a bailiff, a copy of the document served, with the date and mode of service (a) K. 14. (*) E. 15. (c) K. 15 (2). (d) C.O.R., 0. VII., r. 29. h). lb., r. 29a. (/) lb., rr. 23, 29b. (- itmal pay day] after the date of the award, and for the payment thereafter of the said sum of to the said A.B. on Saturday \or othe>- usual pay day] in every week. [Or, And the said CD. & Co., Limited, herewith pay into Court the sum of £ in satisfaction of such liability.] Dated this day of (Signed) Solicitors for the Respondents, To the Registrar of the Court, and CD. & Co., Limited. To the Applicant A.B., and To the Respondents {if any, naming them). Form 10. Notice of Filing of Submissimi to an Award, [Title as in Request for Arbitration.] Take Notice — That the respondents, C D. & Co., Limited, have this day filed with me a notice (copy of which is sent herewith) that they admit their liability to pay compensation in the above-mentioned matter, and submit 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. FORMS. 73 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 Registrar of the To the Applicant, A.B. Court. Form 11. Notice of Payment into Court. [Title as in Request 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 siun 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, where 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 apportionment and application of the said sum of £ , the judge of this Court will, 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 appor- tionment 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]. In default of such notice being sent by you and all the other respondents [or, by the applicant and yourseU and aU the other respondents], the arbitration will be proceeded with: and if no greater amount than the said sum of £ is awarded as compensation, the parties who do not send such notice wiU be liable to be ordered to pay the costs incurred by the respondents, CD. & 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 of the To the Applicant A.B., Court. [or To the Respondent G.H.] (or as the ease may be). 74 FOBMS. Form 12. Notice of Acceptance of Weekly Sum offered, or of Willingness to accept Sum paid into Court. [Heading as in Bequest for Arbitration^. Take Kotice — That the applicant, A.B. accepts the weekly sum offered by the respondents, C.D. & Co., Limited, in satisfaction of his claim in the above-mentioned matter [or, that the applicant E.F. [or, the respondent G.H.] is willing to accept the simi of £ paid into Court by the respondents, CD. & Co., Limited, in satisfaction of the compensation 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, CD. & Co., Limited, to pay the costs properly incurred by the applicant [or the said respondent G.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 Court]. Dated this day of (Signed) Applicant, or To the Registrar of the Court, and - Respondent. To the Respondents, CD. & Co., Limited, and To the Applicant, A.B., and To the Respondents {naming them). Form 13. Notice by Sespondent to Third Farties, [Seadi/ig as in Request for Arbitration']. To Mr. , of {address and description) Take Notice — That A.B. of, &c., , has filed a request for arbitration (a copy whereof is hereto annexed) as to the amount of com- pensation payable by the respondents, CD. & Co., Limited, to the said A.B. under the said Act in respect of personal injury caused to the said A.B. by accident arising out of and in the course of his employment. The respondents, CD. & 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 in respect of which the said CD. & Co., Limited,- had contracted with you for the execution thereof by or under j-ou, and that you would, independently of section 4 of the said Act, have been liable to pay compensation in respect of such injury. [Or on the ground that the injury for which compensation is claimed was caused under circumstances creating a legal liability on your part to pay damages in respect thereof] ((»• as the case may be). FORMS. 75 And take notice, that if you wish to dispute the applicant's claim as against the respondents, CD. & Co., Limited, 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 not he entitled in any future proceedings between the respondents, CD. & Co., Limited, and your- self to dispute the validity of the award made 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. Dated this day of (Signed) CD. & Co., Limited, To By Secretary. of or Solicitors for the Respondents, CD. & Co., Limited. FOKM 14. Award. (i.) In case of Application by Workman. [Seading as in Request for Arbitration. ] Having duly considered the matters submitted to me, I do hereby make my award as follows : — 1. I order that the respondents, CD. & 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 CD. & Co. in [state nature of employmenf] 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 [the first Saturday or other usual pay day after the date of the award'] and do thereafter pay the said sum of to the said A.B. on Saturday {or other usual pay day) in every week. 3. 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]. 76 FORMS. (ii.) In Cme of Application by Dependants. [^Heading as in Request for Arbitration.'] Having duly considered the matters submitted to me, I do hereby make my award as follows : — 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 injxiry 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 CD. & Co., Limited, in [state nature of employment}. 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 K.B. an infant daughter of the said A.B. 3. And I declare that the respondent G.B. , the father 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 £ be apportioned between the said J.B. and K.B. 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 dE to or for the benefit of the said K3. 5. And I order that the said CD. & Co., Limited, do pay the said sum of £ to the applicant, E.F., the legal personal reprraentative of the said A.B. \&r if no legal personal rep^-esentative, to the registrar of this Court,] for the use of the said J.B. within 14 days from the date of this award, and that the said CD. k Co., Limited, do within the same perit-1 pay the said sum of £ apportioned to or for the benefit of the said K.B. to the registrar of this Court. 6. And I order that the said last mentioned sum be invested by the registrar in his name in the P<^ Office Savings Bank for the benefit of the said £.B., and that the interest arising from such investment be from time to time, nntil further order, paid to the said J.B. to be br her applied for the maintenance, education, or benefit of the said K.B." 7. And I order that the said CD. & Co., Limited, do pay to the r^^istrar 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 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 any giien) as to costs occasioned by claim of person claiming as a dependant whose claim is disallowed,'] Dated this day of Judge [or Arbitrator]. FORMS. 77 (iii.) In case of Application by Ferson to whom Expenses of Medical Attendance or Surial are due. l^Hending as in Bequest for Arbitration.'] Having duly considered the matters submitted to me, I do hereby make my award as follows : — 1. I order that the respondents, CD. & Co., Limited, do pay the sum of £10 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 employment of the said A.B. as a workman employed by the said CD. & Co., Limited, in [state nature of emploj/tncnf]. 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 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 £10 to the registrar of this Court within 14 days from the date of this award, and that the said sum of £10 be apportioned between and paid to the said E.F. 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 applicant, E.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 taxation. Dated this day of Judge [or Arbitrator]. , [Note. — The above forms will serve as guides for framing awards in other cases of arbitration]. Form 15. Notice of DoAj upon which Special Case will he heard. In the County Court of , holden at [Heading as in Special Case.] Take Notice that the judge of this Court will hear the special case stated by Mr. , the arbitrator 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 . ^ Kegistrar of the Court. To [Z%e Applicant and Sespondents.] 78 FORMS. Form 16. Form of Memorandum imder Paragraph 8 of iSchedule II. To the Registrar of the County Court of , holden at In the matter of the Workmen's Compensation Act, 1897, and In the matter of an Arbitration between ■^■B- of, &c., AppUcant, and CD. & Co., Limited, of, ^0., Respondents. [or, where the matter has heen decided by agreement without arbitration. In the matter of an Agreement between A.B. of, &c., and CD. & Co., Limited, of, &c., .] Be it remembered, that on the day of personal injury was caused to the said A. B. of, &o., in [state nature of employment'] , 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 CD. & 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:] [Sere set mU copy of agreement, decision, or award.l [or, where death resulted from the accident. Be it remembered, that on the day of personal injury was caused to A.B. late of deceased, who was a workman employed by CD. & Co., Limited, of, &c., in [state nature of employment'] 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 CB. G.B. &c., 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: [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 FORMS. 79 Act in the case of the said CD. & Co., Limited, and their workmen • that 18 to say :] ' [01- And that on the day of the following award was made ajid given by me, the undersigned, being an arbitrator agreed on by C.B. G.B. , &c., , the dependants of the said A.B. withm the meaning of the above-mentioned Act, and the said CD. & Co., Limited, ; that is to say :] [Sere set out copy of agreement, decision, or mvard.'] 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 You are hereby requested to record this memorandum, pursuant to paragraph 8 of the second schedule to the above-mentioned Act. • Dated this day of [To be signed — In the case of an agremnmt, by the parties or some or one of them, or by their or his solicitor on their or his behalf: In the ease of a decision by a committee, by the chainncm and secretary on behalf of the cmnmittee : In the case of an award, by the arbitrator.'] FoiiM 17. Inquiry as to Genuineness of Memorandum. In the County Court of , holden at [Heading as in Memorandiwi.] Taxe Notice, that a memorandum, copy of which is hereto annexed, has been sent to me for registration. Such memorandum, which appears to affect you, is not signed by yon or on your behalf. I have therefore to request you to inform me in due course of post, whether you admit the genuineness of the memorandum, or whether you dispute it, and, if so, in what particulars. If you do not inform me in due course of post that you dispute the genuineness of the memorandum, it will be recorded without further inquiry, and win be enforceable accordingly. If you dispute its genuineness, it will not be recorded, except with your consent in writing, or by order of the judge of this Court. Dated this day of Registrar of the Court. To 80 FOEMS. Form 18. Notice Disptitinff Memorcmdum. In the County Court of , holden at [Seading as in Meinoramdimn^ Take Notior, that the undersigned CD. & Co., of &c., dispute the genuineness of the memorandum sent to you for registration in the ahove-mentioned matter in the following particulars : — \heTe state pcerticulars.] Dated this day of CD. & Co., Limited, by Secretary, [or , Solicitors for CD. & Co., Limited.] To The Ee^istrar. Form 19. Notice that Genuineness of Memorandum is disputed. [^Seading as in last JForm.'] Take Notice, that the genuineness of the memorandum in the ahove- mentioned matter left with [or sent to] me hy yon is disputed hy of , a party affected hy such memorandum, hut who has not signed the same, in the following particulars : [_here state pwrticidwrs of dispute.'\ The memorandum wiU therefore not he recorded, except with the consent in writing of the said , or hy order of the judge of this Court. Dated this day of Registrar of the Court. To Form 20. Notice of Application, for Segistration of Memorandum or for Bectifieation of Register. In the County Court of , holden at [Title as in the Memorandtim.'] Take Notice, that I intend to apply to the judge at on the day of , at the hour of o'clock in the noon [in ease of notice by solicitor, on hehaU of of ] for an order for the registration of the memorandum sent to the registrar in the FORMS. 81 above-mentioned matter [^or for an order for the rectification of the memorandum recorded in the above-mentioned matter] by {state particulars of rectification applied 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). Form 21. Notice of Application for Determination of Amount of Costs under paragraph 12 of II. to the Act. In the County Court of , holden at \_Title as in Award or Memorandum.'] Take Notice, that I intend to apply to the judge at on the day of ' at the hour of o'clock 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 22. Form of Certificate under Section 1, sub -section 4. 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. 6 82 FORMS. And in the matter of the "Workmen's Compensation Act, 1897, I hereby certify that on the day of the above-named plaintiff commenced the above-named action against the above-named defendants claiming [Aece state claim of plaintiff in action.^ And that on the trial of the said action on the day of 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 to 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 compensation of any costs which in the judgment of the Court were cawed by the plaintiff bringing the action instead of proceeding tmder the Act). Dated this day of Registrar of the Court. FofiM 23. Execution on Award or Memorandum or Certificate. In the County Court of , holden at i^Title 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 the day of a memorandum was recorded in this Court of an agreement [or decision or 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 certifi ate] : 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 [as in ordinary executions.] [This form to he adapted to the circumstances of the case tvhere execution is ordered to issue under Ittik 47, paragraph (e) for costs.] PORMS. 83 Form 24. Notice of Application to stay Proceedings in Arbitration or suspend weekly Payments, under Schedule I., paragraph 3, or paragraph 11, and Rule 60. \Seading as in Request for Arbitration, or Award, or Meinorandum or Certificate [as the ease may fe].] Take Notice that I intend to apply to the judge \or to Mr. the arhiti-ator appointed in the ahove-mentioned matter] at on the day of at the hour of o'clock in the noon, [on behalf of Messrs. CD. & Co., Limited, of &c., ] for an order staying the proceedings in the above-mentioned arbitration [or suspending the weekly payments awarded to you by the above-mentioned award, <»■• memorandum Of certificate] on the ground that you refuse to submit yourself to medical examination as required by me [or by the said CD. & Co., Limited], in accordance with paragraph 3 [or paragraph 11] of the first schedule to the above-mentioned Act [or that you obstruct the medical examination required by me [or by the said CD. & Co., Limited,] in accordance with paragraph 3 [or paragraph 11] of the first schedule to the above-mentioned 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.] FOKM 2S. Affidamit on Summons against Insurers under Section 5 of the Act. In the County Court of , holden at [Title as in Award, Memorandum, or Certijicate.'] I, A.B. of [o)I, B.F., of . solicitor to A.B. of ,] make oath and say as follows : 1 . 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 on the day of . a memorandum was recorded in this Court of an agreement [or decision or award or certificate] come to [or given or made] in the above mentioned matter whereby it was agreed [or determined or ordered] [state operative parts of agreement, decision, award, or certificate.^ 2. The sum of £ [or a weekly payment of from the day of as the ease may be] still remains due [or payable] to me [or to the said A.B. ] from or by the said CD. under the said award [or memorandum or certificate.] 3. The said CD. is [or are] entitled to the sum [or weekly payment] of from of [insert name and address of insurers'] in respect of the amount due [or payable] to me [or to the said A.B. 1 as aforesaid. 6a 84 FORMS. 4. \^Sere state particulars showing that the employer has become bankrupt, or made a composition or arrangement with his creditors, or, if a company, that the company has commenced to be wound up ; stating, in ease of an assignmettt, the names and addresses of the assignees, or in case of bankruptcy, the name and address of the official receiver or other trustee, or, in case of liquidation, the name and address of the provisional or other liquidator, so far as known to the deponent,"] 5. I [or the said A.B. ] claim [or claims] to have hy virtue of the said Act a first charge on the sum [or weekly payment] to which the said CD. is [or are] entitled from the said {insurers) as aforesaid, for the amount so due [or payable] to me [or him], and claim [or claims] that the said may he ordered to pay the said sum, or so much thereof as may he sufficient to satisfy the amount so due to me [or the said A.B. ] into Court, to be invested or applied for my [or his] benefit [or, in the casi of a weekly payment, that the said may be ordered to pay the said weekly payment to me [or him]. Sworn, &c. Form 26. Summums to Insurers. In the County Court of , holden at No. of plaint. [Title as in Award, or Memorandum, or Certificate.'] Insurers. [Insert here name, address, and description of Insurers.] Whereas [recite award, or memorandum, or certificate, as in affidavit]. And whereas the said A.B. has filed an affidavit in this Court, stating that the sum of £ [or a weekly payment of from the day of [as the case may be] still remains due [or payable] to him from or by the said CD. under the said award [or memorandum, or certificate] : And that the said CD. is [«• are] entitled to the sum [or weekly payment] of from you in respect of the amount due or payable to the said A.B. as aforesaid : And that [Sere repeat allegations in affidavit as to bankruptcy, composition, arrangement, or winding up]. And that the said A.B. claims by virtue of the said Act to have a first charge on the sum [or weekly payment] to which the said CD. is [or are] so entitled from you as aforesaid, and claims that you may be ordered to pay the said sum, or so much thereof as may be sufficient to satisfy the amount so due to the said A.B., into Court, to be invested or applied for his benefit [or, in the case of a weekly payment, that you may be ordered to pay the said weekly payment to him] : You are therefore hereby summoned to appear at a Court to be holden at , on the day of , at o'clock in the noon, to show cause why an order should not be made upon you for the payment into Court of the sum to which the said CD is [or are] entitled from you as aforesaid or so much thereof as may he sufficient to satisfy the amount so due to the said A.B. [or for the payment by you of the said weekly payment to the said A.B. ] : FORMS. 85 And take notice, that from and after the service of this summons upon you such sum [or weekly payment] is attached to answer the sum [oj- weekly payment] payable to the said A.B. as aforesaid, and that if you shall pay the said sum [or weekly payment] to the said CD. or otherwise dispose of the same you wUl he liahle to he dealt with for contempt. Dated this day of To [the Insurers']. Eegistrar of the Court. Form 27. Notice to Employer or his Assignee, or to Official Meceiver or Ti-mtee in Bankruptcy, or Liquidator, of Issue of Summons to Insurers. [Title as in Summons to Insurers]. Take Notice, that a summons, a sealed copy of which is served herewith, has been issued in the above mentioned matter, and that the judge [or registrar] of this Court has directed that notice of the issue of such summons shall be given to you. AsD FcRTHER Take Notice, that the hearing of the said summons will be proceeded with at on 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 place and time above mentioned, such order will be made and proceedings taken as the judge may think fit. Dated this day of To Eegistrar of the Court. [The Employer or his Assignee, or the Official Receiver or other T^tcstee in Ba/nhmptcy, or the Provisional or other Liquidator.] Form 28. Order against Insurers. [Title as in Summons.] Whereas [recite award or memorandum or certificate, as in affidavit.] And whereas the said A.B. having filed an affidavit [recite affidavit as in smnmmis] the said were summoned to appear before the Court this day and to show cause why an order should not be made on them for the payment into Court by them of the sum to which the said CD. is [or are] entitled from them as aforesaid, or so much thereof as might be sufficient to satisfy the amount so due to the said A.B. [or for the payment by them of the said weekly payment to the said A.B. .] Now the said having failed to appear before the Court this day [or having appeared before the Court this day and failed to shew cause why they should not be ordered to make such payment as aforesaid]. 86 FORMS. It is ordered that the said do within 14 days from the date of this order pay to the registrar of this Court the snni of £ to which the said CD. is [or are] entitled from them in respect of the amount due to the said A.B. under the said award [or memorandum or certificate]. [Or, It is ordered that the said do within 14 days from the date of this order pay to the registrar of this Court for the use of the said A.B. the sum of £ , heing the amount to which Jhe said CD. is [or are] entitled from them in respect of the weekly sum payable to the said A.B. under the said award [or memorandum or certificate] from the day of to the day of And that the said do thereafter until further order pay to the -Said A.B. the weekly sum of , being the amount to which the said CD. is [or are] entitled from the said in respect of the weekly sum payable to the said A.B. under the said award [or memorandum or certificate]. Add Directions as to Investment and Application of Money ordered to he paid into Gow/rt, omA as to Costs.l^ FoKM 29. Execution against Insurers. In the County Court of , holden at [Title as in Order against Insurers.] Whereas on the day of , it was ordered [recite operative parts of order against insurers."] And whereas default has been made in payment of the sum of £ , payable into Court under the said order [or payable to the said A.B. under the said order] : These are therefore, &c. — fas in ordinary executions. J Form 30. Register. The Workmen's Compensation Act, 1897. Register. No. of. Date of Matter. Title. Proceedings. Nature. 1. In the matter of Oct. 11, 1898. Request for arbitration filed. arbitration be- and copy sent to judge. tween A.B. of &c., Applicant and Oct. 20, 1898. Appointment of Mr. CD. & Co., as arbitrator. Limited, of, &c., Respondents Oct. 24, 1898. Copy request sent to arbi- trator. FORMS. Register — contimted. 87 No. of Matter. Title. In the matter of an agreement between A.B., of and E.F. & Co., Limited, of &o. Date of Proceedings. Oct. 28, 1898. Oct. 28, 1898. Nov. i, 1898. Nov. 6, 1898. Nov. 12, 1898. Nov. 13, 1898. Nov. 16, 1898. Nov. 23, 1898. Deo. 13, 1898. Dec. 20, 1898. Jan. 3, 1899. Jan. 10, 1899. Jan. 7, 1899. Jan. 8, 1899. Jan. 10, 1899. Nature. Day for arbitration fixed. Notice of day fixed sent to applicant, and notice with copy request sent to respon- dents by registered post. Respondents' answer filed ; copies sent to arbitrator and applicant. Application by applicant for discovery ; order made. Respondents' affidavit filed. Five subpoenas issued on appli- cation of applicant's solicitor. Arbitration held ; Mr. appointed as medical referee to report ; further hearing adjourned. Report of medical referee re- ceived 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 coats paid into Court by respondents. £ for costs paid to applicant's solicitor. Memorandum of agreement as to compensation, signed by solicitor of A.B., left to be recorded. Inquiry as to genuineness sent by post to E.F. & Co., Limited. Letter received from E.F. & Co., Limited, disputing genuine- 88 No. of Matter. Title. FORMS. Register — contimted. Date of Proceedings. Jan. 10, 1899. Jan. 15, 1899. Jan. 31, 1899. Feb. 2, 1899. Feb. 13, 1899. Mar. 1, 1899. Nature. Notice sent to A.B.'s solicitor, that genuineness is disputed, and that Memorandum will not he recorded without consent in writing of E.F. & Co., Limited, or order of Judge. Application on behalf of A.B., that Memorandum be re- corded. Application heard, and order made that Memorandum be recorded with alterations. Memorandum recorded as fol- lows [set out Memorandum], Costs of A.B. taxed and allowed at £ Execution issued for costs. &c., &c., &c. We, Alfred Martineau, Henry J. Stonori Richard Haringtoiij William L. Selfe, and William Cecil Smyly, 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 ten of the Second Schedule to the Workmen's Com- pensation Act, 1897, do hereby certify the same under our hands, and submit them to the Lord Chancellor accordingly. Alfred Ma/rtineau. Henry J. Stonor. Richard Ha/rington. Wm. L. Selfe. William Cecil Smyly. I allow these Rules, The 27th of May, 1898. Halshury, C. 89 THE COUNTY COUET RULES, INCORPORATED BY THE RULES PUBLISHED UNDER THE WORKMEN'S COMPENSATION ACT. ORDER III. Paeties. Generally. I A. All persons may be joined in one action as plaintiffs in whom any right to reljef in respect of or arising out of the same trans- action or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, where, if such persons brought separate actions, any common question of law or fact would arise : Provided that if upon the application of any defendant it shall appear that such joinder may embarrass or defeat the trial, the judge may order separate trials, or make such other order as may be expedient. And judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment. But the defendant, though unsuccessful, shall be entitled to any extra costs occasioned by so joining any person who shall not be found entitled to relief, unless the Court in disposing of the costs of the action shall otherwise direct. 7. Where there are numerous persons having the same interest in one action or matter, one or more of such persons may sue or be sued, or may be authorized, at or before the trial, by the judge or registrar to defend in such action or matter, on behalf or for the benefit of all parties so interested. 8. Where a defendant desires to defend on behalf or for the benefit of others having the same interest, he shall within two clear days of the date of service of the summons on him give notice to the plaintiff of his intention to apply, upon a day and hour to be named 90 THE COUNTY COURT RULES. in such notice, to the registrar for leave so to defend, and shall file an affidavit of the facts upon which he relies to obtain such leave, together with the names, addresses, and occupations of such persons, and the registrar may thereupon make an order for the defendant so to defend, and shall add the names to that of the defendant in the plaint and minute book, and a copy of such order shall be personally served on each of such persons and notice sent to the plaintiff according to the form in the Appendix : Provided that the plaintiff or any of the persons whose names have been so added may at the trial object to the defendant defending on behalf of all or any of the persons as to whom such order has been made, and the Judge may thereupon, if he thinks fit, strike the name of all or any of such persons out of the proceedings, and order the defendant to pay such costs as he shall think fit. Persons under disability. 9. Infants may sue as plaintiffs by their next friends, and may defend by their guardians appointed for that purpose, but nothing herein contained shall affect the right of any infant to sue as if he were of full age in the cases enumerated in section ninety-six of the Act. 10. In those cases to which the Married Women's Property Act, 1882, does not apply, a married woman may sue by her next friend, nevertheless by leave of the judge or registrar she may sue or defend without her husband and without a next friend, on giving such security, if any, for costs, as the 'judge or registrar may require, and such leave may, in the discretion of the judge or registrar, be given with or without the imposition of terms, at the trial, or at any time during the course of the action or matter. 11. In all cases in which lunatics and persons of unsound mind not so found by inquisition might respectively before the 1st November, 1875, have sued as plaintiffs or would have been liable to be sued as defendants in any action, they may respectively sue as plaintiffs in any action by their committee or next friend accord- ing to the practice of the chancery division of the high court of justice, and may ia like manner defend any action by their com- mittees or guardians appointed for that purpose. THE COUNTY COUET RULES. 91 12. In all actions or matters to which any infant or person of unsound mind, whether so found by inquisition or not, or person under any other disability, is a party, any consent as to the mode of taking evidence or as to any other procedure given by the next friend, guardian, committee, or other person acting on behalf of the person under disability, shall, with the consent of the judge, have the same force and effect as if such party were under no disability and had given such consent. Provided that no such consent by any committee of a lunatic shall be valid as between him and the lunatic unless given with the sanction of the lord chancellor or lords justices sitting in lunacy. Part'iiers. 13a. Any two or more persons claiming or being liable as co- partners may sue or be sued in the name of their respective firms, if any, of which such persons were co-partners at the time of the accruing of the cause of action ; and in any such case on application by any party to the action the registrar may order a statement of the names of the persons who were at the time of the accruing of the cause of action co-partners in any such firm, to be furnished in such manner, and verified on oath or otherwise, as the registrar may direct. 16a. Any person carrying on business in a name or style other than his own name may be sued in such name or style, as if it were a firm name, and so far as the nature of the case will permit, all the provisions of these rules relating to proceedings against firms shall apply. ORDER VII. Service. 23. In the absence of any statutory provision regulating the service of process, service may be made on a corporation aggregate, on the mayor or other head officer or on the town clerk, clerk, treasurer, or secretary of such corporation, and when, by any statute, provision is made for service of any writ of summons, bill, petition, summons, or other process upon any corporation, or upon any 92 THE COUNTY COURT RULES. hundred, or the inhabitants of any place, or society or fellowship, or any body or number of persons, whether corporate or unincorporate, a summons may be served in the manner so provided. Default Summonses and Service. 29. Default summonses shall be personally served within a period of twelve months from their date; but if any defendant therein named shall not have been served therewith, the plaintiff may, before the expiration of twelve months, apply to the registrar, and if the registrar is satisfied that reasonable efforts have been made to serve such defendant, or that there is some other good reason why service has been delayed, may issue a successive summons for a further period of twelve months, and so from time to time during the currency of the successive summons, and such successive summonses shall be a continuance of the action on and from the day on which the plaint was entered. 29a. Where a default summons is issued against partners in the firm's name, it shall be deemed to be sufficiently served on the firm if served personally on any one of the partners. 29b. Where a default summons is issued against a corporation or against any other defendant or body of defendants mentioned in Rule 23 of this Order, it shall be sufficiently served on such corporation or other defendant or body of defendants if served in accordance with the said rule. ORDER VIII. Consolidation m- Stay a/ Proceedings-Transfer. 2. Where several actions shall be brought by different plaintiffs against the same defendant in the same court for or in respect of causes of action arising out of the same breach of contract, wrong or other circumstances, the defendant may, on filing an undertaking to be bound so far as his liability in the said several actions is concerned by the decision in such one of the said actions as may be selected by the judge apply to the judge for an order to stay the proceedings in the actions other than in the one so selected, until judgment is given in such selected action. THE COUNTY COURT RULES. 93 3. Applications under the two preceding rules shall be made upon notice to the plaintiffs to be affected by any order made thereon. 4. Upon the hearing of any application for consolidation of actions or for stay of proceedings, the Judge shall have power to impose such terms and conditions and make such order in the matter as may be just. 5. In case a judgment in a selected action under Rule 2 of the Order shall be given in favour of the defendant, the defendant shall be entitled to his costs up to the date of the order staying pro- ceedings against every other plaintiff whose action is stayed, unless such plaintiff shall give the registrar within one month from such judgment written notice to set down his action for hearing, which, on the receipt of such notice, the registrar shall forthwith do and give notice thereof to the plaintiff and defendant. 6. In case a judgment in a selected action shall be given against the defendant, the plaintiffs in the actions stayed shall be at liberty to proceed for the purpose of ascertaining and recovering their debts or damages and costs. 9. Where application is intended to be made for the transfer of any action or matter, or proceeding under section 85 of the Act, or under the last preceding rule, or under Order XXXIII., Rule 1 2, three clear days' notice in writing of such intended application shall be given by the applicant to the registrar of the Court in which such action, matter, or proceeding is pending, and to all parties who may be affected by such application ; but the judge may, at any time, by consent of all parties, or without such consent, if he shall think fit, order a transfer although this rule has not been complied with. When a transfer is ordered, the judge may make such order as to the costs incurred before or occasioned by such transfer as he shall think fit. ORDER IX. Payment into Cou/rt-Investment. 21. In any action or matter in which a sum of money has been awarded to or recovered by an infant, or person of unsound mind not so found by inquisition, the judge may at or after the trial order 94 THE COUNTY COURT RULES. that the whole or any part of such sum shall be paid into court to the credit of an account intituled in the action or matter ; and any sum so paid into court may either be invested, or be paid from time to time out of court to such person as the judge may direct, to be held and applied for the benefit of such infant or person of unsound mind in such manner as the judge from time to time shall direct. 22. When any moneys have been paid into court or invested pursuant to the order of the judge under the last preceding rule, it shall not be necessary that applications in regard to them shall be made by petition. Any person interested may apply in person to the j udge, or registrar, and he, on such evidence of right and identity as he may think necessary, may make such order as he may deem to be just. ORDER XXII. General jurisdiction on Trial. 10. At the trial the court may try the whole matter of the action and give judgment thereon, or grant any relief, redress, or remedy, or may make any order, or give any direction he may consider necessary to enable him to give a final judgment upon a day to which the trial may be adjourned, and may also make such order as to costs as he may think fit. ORDER XXIII. Service on Solicitw. 4. When a party acts by a solicitor, service of any judgment or order in the nature of a decree, and of any interlocutory order, or any notice relating to any such order when directed to be served, may be made by or upon such solicitor, as the case may be. ORDER XXV, Discover^/ in aid of Execution. 52. When a judgment or order is for the recovery or payment of money, the party entitled to enforce it may apply to the judge or registrar for an order that the debtor liable under such judgment THE COUNTY COURT RULES. 95 or order, or in the case of a corporation, that any officer thereof, be orally examined, as to whether any or what debts are owing to the debtor, and whether the debtor has any and what other property or means of satisfying the judgment or order before the judge or registrar as the judge or registrar shall appoint. And the judge or registrar may make an order for the attendance and examination of such debtor, or of any other person, and for the production of any books or documents. ORDER XXVlA. Attachment of Debts. 5. Where the garnishee shall pay into court five clear days before the return-day the amount due from him to the debtor liable under the judgment or order, or an amount equal to the judgment or order, he shall not be liable for any costs incurred by the person who obtained the judgment or order. 6. The registrar shall forthwith give notice of the payment into court to the person who has obtained the judgment or order, and if such person elects to accept the money so paid into court by the garnishee, and shall send to the registrar and to the garnishee by prepaid post or leave with the registrar a written notice stating such acceptance within forty-eight hours after receipt of the notice of payment into court, all further proceedings against the garnishee shall abate, and the registrar shall pay the money so paid into court to the person who obtained the judgment or order in discharge or part discharge of the debt due to such person, and of the costs of issiiing the garnishee summons. 7. If the garnishee does not before the return-day of the summons pay into court the amount due from him to the debtor liable under the judgment or order, or an amount equal to the judgment or order, and does not on the return-day dispute the debt due or claimed to be due from him to such debtor, or if he does not appear on the return-day either in person or by some person duly authorised on his behalf, then the judge may give judgment for the plaintiff, and may order execution to issue to levy the amount due from the garnishee, or so much thereof as may be sufficient to satisfy the judgment or order. 96 THE COUNTY COURT RULES. 8. Upon the return-day, should the amount paid into court under Rule 5 of this Order be not accepted, the judge shall determine as to the liability of the garnishee to pay any further sum on account of the debt claimed to be due from him to the debtor, and as to the party by whom the costs of the proceeding by plaint shall be paid, and make such order as may be in accordance with such deter- mination. 9. If the garnishee appears on the return-day and disputes his liability the judge may instead of giving judgment order that any issue or question necessary for determining his liability be tried or determined in any manner in which any issue or question in an action may be tried or determined. 11. Whenever in proceedings to obtain an attachment of debts it is suggested by the garnishee that the debt sought to be attached belongs to some third person, or that any third person has a lien or charge upon it, the judge may order such third person to appear, and state the nature and particulars of his claim upon such debt. After hearing the allegations of such third person and of any other person whom the judge, by the same or any subsequent order, may order to appear, or in case of such third person not appearing when ordered, the judge may decide in favour of the person who obtained the judgment or order, or may order any issue or question to be tried or determined between the third person and the person who obtained the judgment or order, and may bar the claim of such third person or make such other order as such judge shall think fit, upon such terms, in all cases, with respect to the lien or charge (if any) of such third person, and to costs, as the judge shall think just and reasonable. 12. Payment made by or execution levied upon the garnishee under any such proceeding as aforesaid shall be a valid discharge to him as against the debtor, liable under a judgment or order, to the amount paid or levied, although such proceeding may be set aside, or the judgment or order reversed. 13. The costs of any application for an attachment of debts, and of any proceedings arising from or incidental to such application, shall be in the discretion of the judge. THE COUNTY COURT RULES. 97 ORDER XLIV. Judgment where sevet'ol plaintiffs. 18. Where two or more persons are joined as plaintiffs under Order III., Rule 1, and the negligence, act, or omission which is the cause of action shall be proved, the judgment shall be for all the plaintiffs, but the amount of the sum so awarded for damages and the costs ordered to be paid to each such plaintiff shall be found and set forth in the judgment, and the amount of costs awarded in the action shall be ordered to be paid to such person and in such manner as the court may think fit. 19. Should the defendant fail to pay the several amounts of com- pensation and the costs awarded in the action, execution against his goods may issue as in an ordinary action, and should the proceeds of the execution be insufficient, after deducting all costs, to pay the whole of the amounts awarded, a dividend shall be paid to each plaintiff, calculated upon the proportion of the amount which shall have been awarded to the respective plaintiffs to the total amount realised after the deduction of all the costs of the action as aforesaid. ORDER LI. General Provisions. 1 . Where by these rules any act may be done by any party, such act may be done either in person or by his solicitor or agent, if it can be legally done by an agent. 2a. Where a party acts by solicitor, service of any proceeding or document upon such solicitor, or delivery of the same at his office, or sending the same to him by post prepaid, shall be deemed to be good service upon the party for whom such solicitor acts, as upon the day when the same is so served or delivered, or upon which in the ordinary course of post it would be delivered, except in cases where by these orders personal service upon a party is required. Provided that the provisions of this rule shall not extend to any default or judgment summons, nor except as provided by Order VII., rule 9c, to any ordinary summons. 7 98 THE COUNTY COURT RULES. 3. A solicitor acting for a party in any action or matter may give notice in writing by post or otherwise to the registrar and to the other party, or his solicitor, that he is so acting, whereupon service of any document, notice, or proceeding whatsoever authorized by these rules to be served by or upon a solicitor so acting shall be served by or upon such solicitor accordingly, and he shall be deemed to be the solicitor acting for the party on whose behalf he has given such notice, until notice of change of solicitor has been duly given. No notice need be given under this rule by a solicitor acting for the plaintiff where the plaint has been entered by such solicitor and the particulars duly signed by him. 4. Where a solicitor undertakes the service of any process, he shall make the necessary copies of each process, and the registrar shall seal the same and return them to the solicitor for service. 5. Any party who acts by solicitor shall be at liberty to change his solicitor without any order for that purpose, but when any such change is made he shall give twenty-four hours' notice in writing to the registrar and to the solicitor, if any, acting for any other party to the action or proceedings of such change, and of the name or firm and place of business of the new solicitor, and the registrar shall file the notice given to him ; but until such notice is filed and a copy thereof served the former solicitor shall be continued as the solicitor of the party. 6. Where by reason of the absence of any party, or from any other sufficient cause, the service of any summons (other than a default summons), notice, proceeding, or document cannot be made, the judge or registrar may, upon an affidavit showing grounds, make such order for substituted service, or for the substitution for service of notice by advertisement or otherwise, as may be just. THE COUNTY COURT RULES. 99 FOEMS UNDEE THE COUNTY COURT EULES. 21. Atfidavit of Service of a Default Summons. I, A.B., of »»■ G.H., a clerk [or servant] in the permanent and exclusive employ of] 'or L.M., of , the solicitor for] 'or E.S., of , solicitor, agent for L.M., of , the solicitor for] 'or X.Y., a clerk in the employ of [R.S., of , solicitor, agent for] L.M. of , solicitor for] the ahove-named PlaintifE make oath and say : That I [am a clerk [or servant] in the permanent and exclusive employ of] [or am a clerk in the employ of [R.S., of , solicitor, agent for] L.M., of , solicitor for] the above-named Plaintiff, and that I am over sixteen years of age. That I did on the day of 18 , duly serve E.F., the above-named Defendant [or one of the above-named Defendants] with a summons, a true copy whereof is hereunto annexed, marked " A," by delivering the same personally to the said Defendant [here insert place ivhere service teas made']. {Indorse the copy-simimons or other process thxis : — This paper, marked " A," is the paper referred to in the annexed affidavit.) 38a. Notice to Plaintiff of Payment of Instalment. I hereby give you notice, that A.B., the defendant, [or garnishee] has paid into court the sum of £ under the judgment [of garnishee summons] obtained by you against him. [If the money is paid into Court by a garnishee add : 2f yon elect to accept the sum paid into Court as a satisfaction of your claim against the garnishee, you must, in order to save costs, send a written notice of acceptance to the registrar and to the garnishee within forty -eight hours after receipt of this notice.'] [N.B. — X7pon your applying for the above amount it will be necessary that you should produce or send the plaint-note given to you on the entry of the plaint.'] 111. Notice to Plaintiff that Defendant defends on behalf of otheks. Take notice, that the above-named defendant has obtained an order for leave to defend the above action on behalf of or for the benefit of [state names of persons as in order], as well as on his own behalf. You may, if you think fit, object at the trial to the defendant defending on behalf of all or any of such persons. The affidavit on which the above-mentioned order was made is filed at my office and may be inspected by you. Dated this day of 18 . Registrar. To the above-named plaintiff. 7a 100 THE COUNTY COURT RULES. 117. Undertaking by Defendant applying for Stay op Proceedings. In the County Court of, &c. Plaint No. Between A. B., plaintiff, and C. D., defendant, and Plaint No Between E. F., plaintiff, and C. D., defendant. Whereas the above-mentioned actions have been brought in this court by the said A. B. and B. F. against me, and whereas the causes of action in the said actions arise out of the same alleged breach of contract [<)>• wrong or breach of duty]. Now, therefore, I undertake to be bound, so far as my liability in the said actions is concerned, by the judgment of the court, in either of the said actions which may be selected by the judge. Defendant. 101 PAET III. Regulations as to Medical Referees made by the Secretary of State and the Treasury. STATUTOEY EULES AND OEDEES, 1898. No. 345. MASTER AND SERVANT. WORKMEN'S COMPENSATION ACT, 1897. MEDICAL REFEREES. Regulations, dated May 2, 1898, made by the Secretaey of State and the Treasury as to the appointment and PAYMENT OF MeDICAL ReFBREES IN ENGLAND AND WaLES. I, the Right Honourable Sir Matthew White Ridley, Baronet, one of Her Majesty's Principal Secretaries of State, and We, the Lords Commissioners of Her Majesty's Treasury, in pursuance of the power conferred on us by the Workmen's Compensation Act, 1897, Schedule II., paragraph (13), hereby make the following regulations : — Definitions. 1. In these regulations — (i.) "Medical Referee" means a legally qualified medical practitioner appointed by the Secretary of State for the purposes of the Workmen's Compensation Act, 1897. (ii.) " Reference " means 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, 1897. (iii.) " Committee " means a committee representative of an employer and his workmen, with power to settle matters under the Workmen's Compensation Act, 1897, in the case of the employer and workmen. 102 STATUTORY RULES AND ORDERS, 1898. (iv.) " Agreed Arbitrator " means a single arbitrator agreed on by the parties to settle any matter which under the Workmen's Compensation Act, 1897, is to be settled by arbitration. (v.) "Appointed Arbitrator" means a single arbitrator ap- pointed by the judge, (vi.) " Judge " means County Court Judge. (vii.) The words " district in which the case arises " mean the county court district in which all the parties concerned reside, or, if they reside in different districts, the district in which the accident occurred, subject to any transfer made under rules of court. Conditions of Reference. 2. Before making any reference, the committee, arbitrator, or judge shall be satisfied, after hearing all medical evidence tendered by either side, that such evidence is either conflicting or insufficient on some matter which seems material to a question arising in the arbitration, and that it is desirable to obtain a report from a medical referee on such matter. Form, and Mode of Reference. 3. Every reference shall be made in 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 prescribed in the schedule to these regulations, or as near thereto as may be. The reference shall be accompanied by a general statement of the medical evidence given on behalf of the parties ; and if such evidence has been given before a committee or an agreed arbitrator, each medical witness shall sign the statement of his evidence, and may add any necessary explanation or correction. 4. On making the reference to the medical referee, the com- mittee, arbitrator or judge shall make an order in the form prescribed in the schedule, directing the injured workman to submit himself for examination by the medical referee. Before STATUTORY RULES AND ORDERS, 1898. 103 making such order they shall inquire whether he is in a fit condition to travel for the purpose of examination, and if satisfied that he is in a fit condition they shall by the same order direct him to attend at such time and place as the referee may fix. It shall be the duty of the injured workman to obey any such order. If the committee, arbitrator or judge is satisfied that the work- man is not in a fit condition to travel, they shall so state in the reference. 5. 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. 6. Where there has been a previous reference in any case, any subsequent reference in the same case shall, if possible, be accom- panied by the previous report of the medical referee. 7. Where the reference is made by a committee or agreed arbitrator, it shall be forwarded to the registrar of the county court of the district in which the case arises. Selection of Medical Referee. 8. (1) In the case of a reference bj' a committee or agreed arbitrator the medical referee shall be one of those appointed by the Secretary of State for the county court circuit which includes the district in which the case arises, and shall, except as provided in Regulation 10, (a) If the circuit has been sub-divided and medical referees have been appointed for each sub-division, be one of those appointed for the sub-division which includes the district in which the case arises ; (b) If a rota has been established either for the circuit or for a sub-division of the circuit, be selected in accordance with the rota. (2) In the case of a reference by a judge or by an appointed arbitrator, the medical referee shall be one of those appointed by the Secretary of State for the circuit. 104 STATUTORY RULES AND ORDERS, 1898. 9. It shall be competent for a committee or an agreed arbitrator, without naming a medical referee, to 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 Com- "pensation Act, 1897." 10. 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. Duties of Registrar. 11. (1) In the case of a reference by a committee or agreed arbitrator, the registrar on receiving the reference — {a) Shall see that the reference is in accordance with these regulations, and if it is not shall return it for amend- ment ; (6) Shall, if no medical referee is named in the reference, insert the name of the medical referee proper to be appointed ; (c) Shall, when the reference is in accordance with these regulations, countersign and seal it, and forward it forth- with 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. 12. The registrar shall keep a record in the form prescribed in the schedule to these regulations of all references forwarded by him, and shall send the same to the Secretary of State at the end of each quarter. 13. The registrar, on receiving a report from a medical referee under Regulation 17, shall forthwith file a copy at the court and transmit the report to the committee, arbitrator, or judge by whom the reference was made. If the committee, arbitrator, or judge shall direct that the parties be at liberty to inspect the report, the registrar shall on receiving notice of such direction permit such inspection to be made during office hours, and shall on the application and at the cost of any party furnish him with a copy of the report or allow him to take a copy thereof. STATUTORY RULES AND ORDERS, 1898. 105 14. When a medical referee attends under Regulation 19, the registrar shall certify in the record of references which he is required to keep under Regulation 12, that the attendance was at the special request of the judge or appointed arbitrator. Bepcn-t of Medical Beferee. 15. The medical referee shall not accept any reference unless signed by the judge, appointed arbitrator, or registrar, and sealed with the seal of the county court. 16. The medical referee shall, on receipt of a reference duly signed, appoint a time and, in cases where the injured workman is able to travel, a place for the examination of the workman, and shall send him notice accordingly. 17. The medical referee shall give his report in writing, and shall forward it to the registrar from whom he received the reference. 18. The committee, arbitrator or judge may, by request signed and forwarded in the same manner as the reference, remit the report to the medical referee for further statement on any matter to be specified in such request. Personal Attendance of Medical Referee. 19. In any case of special difficulty the judge, or appointed arbitrator, may require the attendance of the medical referee at any proceedings in the arbitration subsequent to the receipt of the report, at a date and hour to be arranged, and the medical referee shall attend accordingly, but this regulation shall not authorise the medical referee being called as a witness. Fees. 20. The following shall be the scale of fees to be paid to the medical referees : — (i.) For a first reference, to include examina- tion of the injured workman and written report 2 guineas. (ii.) For a further statement imder Regu- lation 18 on any matter not covered by the original reference ... ... ... 1 guinea. 106 STATUTORY RULES AND ORDERS, 1898. (iii.) For a second or subsequent reference to the same referee in a further arbitration on the same case, to include examination, if necessary, and written report ... 1 guinea. (iv.) Where a medical referee attends at the request of the county court judge or appointed arbitrator, for such attend- ance ... ... ... ... ... 3 guineas. (v.) Where in order to examine the injured workman or to attend on the coimty court judge or arbitrator the medical referee is compelled to travel to a place distant more than 2 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 distant from such residence or centre. 21. The medical referee shall send to the Home Office at the end of each quarter a statement, in the form prescribed in the schedule to these regulations, of the fees due to him for the quarter under these regulations. 22. In cases where a claim is made under Regulation 20 (v.) in respect of an examination of an injured workman, the medical referee, in submitting his quarterly statement under Regulation 21, shall certify the distance of the place where the examination was made from his residence or other prescribed centre. 23. These regulations shall come into force on the 1st day of July, 1898, and shall apply to England and Wales. M. W. Ridley, One of Her Majesty's Principal Secretaries of State. H. T. Anatruther, W. H. Fisher, Two of the Lords Commissioners of Her Majesty's Treasury. 2nd May, 1898. STATUTORY RULES AND ORDERS, 1898. 107 SCHEDULE. (Form A.) Reference to a Medical Referee. In the matter of the Workmen's Compensation Act, 1897, and In the matter of an Arhitration between — A. B. Address CD. Description Applicant, and As the case may ■ he. Address Description. Eeapondent. ' (a) We, a committee representative of and his workmen, and empowered to arbitrate in the matter arising under the Workmen's Compensation Act between A. B. and CD.; (b) I, , an arbitrator agreed upon by A. B. and C D. to arbitrate in the matter arising between them under the Workmen's Compensation Act, 1897 ; (c) I, , Judge of County Courts ; (d) I, , arbitrator appointed by a Judge of County Courts. having heard the evidence tendered by both parties, hereby certify that in our {or my) opinion the medical evidence given before us (or me) is conflicting {or insufficient) on a matter which seems to us (or me) to be material to a question sirising 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 \here insert name of injured workman'} by accident arising out of and in the course of his employment, under the following circumstances (a) : — (b) The matter on which we are (or I am) satisfied that it is desirable to obtain a report is — (c) Such matter seems to be material to the following question arising in the arbitration, viz. : — We (or I) therefore appoint (J) one of the medical referees appointed by the Secretary of State for the purposes of the Workmen's Compensation Act, 1897, to examine the said [insert name of injured worRman"] and to report to us (or me) on the matter specified above. A statement of the medical evidence given before us (or me) is appended. (a) Here state facts of accident as ascertained from the evidence. (6) The name may under Regruiation 9, be left in blank to be inserted by the Registrar. 108 STATUTORY RULES AND ORDERS, 1898. We are {or I am) satiafied that the said [insert name of injured workman] who is now at , is in a fit condition to travel for the purpose of being examined, and he has heen directed to attend on the referee for examination at such time and place as shall he fixed by the referee ; or does not appear to be in a fit condition to travel for the purpose of being examined. The referee is requested to forward his report to — The Registrar, County Court Office, on or before the day of Dated this day of (Signed) {a) or On behaH of the Committee Chairman ) , ,-, „ •,, , c J t of Committee. Secretary } •' Signature of Registrar amd Seal of Court. A previous reference was made to a medical referee in this case on the ,189 , and a copy of the report then given is attached. (Form B.) Order on injured workman to submit himself for examination by Medical Referee. {Title as in reference.) To a. B. Address. of Description. Take Notice — That the Committee {or arbitrator, or judge) have {or has) appointed one of the medical referees under the Workmen's Compensation Act, 1897, to examine you for the purposes of the above-mentioned arbitration, and to report to them {or him). You are hereby required to submit yourself for examination by such referee, and to attend (b) for that purpose at such time and place as may be fixed by him. Dated this day of (To be signed in the same manner as reference.) (FOKM 0.) Notice by Medical Referee to injured Workman. Worhnen's Compensation Act, 1897. To A. B. I hereby give you notice that I have been appointed to examine and report on your case under the above-named Act, and that I propose to make such examination at on the day of at o'clock Signed Medical Referee. (a) For signature of judgfe or arbitrator. (6) Strike out "and to attend" when injured workman does not appear in a fit condition to travel. STATUTOEY EULES AND OEDEES, 1899. 668 No. ' L. 34. MASTER AND SERVANT. WORKMEN'S COMPENSATION ACT, 1897. The Workmen's Compensation Rules, 1899. Dated September 1, 1899. The following additional Rules shall have effect under the Work- men's Compensation Act, 1897. They may be cited as the Workmen's Compensation Rules, 1899, and shall be read and construed as if they were contained in the Workmen's Compensation Rules, 1898 (herein called the Principal Rules) ; and they shall come into operation on the first day of November, One thousand eight hundred and ninety nine. 1. The words "fifteen clear days" shall be substituted for the words "ten clear days" in paragraph (1) of Rule 13 of the Principal Rules. 2. The words " ten clear days " shall be substituted tor the words "five clear days" in paragraph (1) of Rule 17 of the Principal Rules. 3. The following Rule shall stand as Rule 34a in the Principal Rules : — 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. 4. Paragraph {d) of Rule 46 of the Principal Eules is hereby annulled, and the following paragraphs shall stand in Keu thereof: — {(J) 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. (e) On the hearing of any application under this rule, the judge or arbitrator may award costs to the soHcitor 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. ( 2 ). (J) Any costs awarded to a solicitor or agent on any such application shall, in default of agreement between the parties as to the amount of such costs, be taxed according to such one of the scales of costs applicable to actions in the County Court as the judge or arbitrator shall direct ; and in default of such direction such costs shall be taxed according to the scale which would be apphcable 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 shall apply accordingly. {g) Where the subject matter of the arbitration is not a capital sum, the judge or arbitrator 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.' 5. The first paragraph of Rule 4T of the Principal Rules is hereby annulled, and the following paragraph shall stand in lieu thereof : — Where an order is made by the judge or an arbitrator awarding costs to a solicitor or agent, and 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, the following provisions shall apply : 6. The following paragraph shall stand at the end of Rule 47 of the Principal Rules : — (gr) 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. We, Alfred Martineau, Henry J. Stonor, Richard Harington, WiUiam L. Selfe, and William Cecil Smyly, being the five judges of the County Courts appointed for the making of Rules under section one hundred and sixty-four of the County Court Act, 1888, having made the foregoing additional Rules of Court, pursuant to paragraph ten of the Second Schedule to the Workmen's Compensation Act, 18Q7, do hereby certify the same under our hands, and submit them to the Lord Chancellor accordingly. A. Martineau. Henry J. Stonor. Richard Harington. Wm. L. Selfe'. William Cecil Smyly. I allow these Rules, The 1st of September, 1899. Halshury, C. STATUTORY RULES AND ORDERS, 1898. 109 County Court Circuit (FOBM D.) Record of references to be kept hy Registrar. District For quarter ending Name of Registrar. Number of Refer- ence. Names of Parties Work- man's Em- ployment. Date on which Reference received or made. By whom made.t Whether workman directed to attend on Medical Referee, or not. Medical Referee appointed. Date and number of previous Reference in same case, if any. t Here Bay whether committee, agreed arbitrator, county court judge, or appointed ca*bitrator. of I hereby certify that the medical referee attended at , on , with respect to reference No. , at the special request (Form E.) Medical Referee^s stateinent of fees. 1 Names of Parties. Date on which Reference rece.ved. Regis- trar from whom received. Date and place of Exami- nation. Date on which Report sent. Date of attend- ance, it any, on Judge or Arbitra- tor. Amount of Fees under each of the headinffs in Regu- lation 20. s. (i.) (ii.) (iii.) (iv.) (V.) 1. 2. A. B. and CD. B.F. and G. H. 10 July, 1898. 6 Sept., 1898. £ £s.a. Bs.d. £s.a. Ss.d. Ss.d. ^ Total (a) I hereby certify that I examined the applicant ^ , at . which is distant residence or prescribed centre. Signed ... e .. d. on miles from my (a) To be endorsed on back of statement. 110 INDEX. ACTION, when plaintifi unsuccessful, costs, 21, 50. certificate, 21, 81. AFFIDAVIT, in applications against insurers, 22, 51, 83. of service of default summons, 10, 32. ANSWER, to be filed by respondents, 10, 33, 70. APPEAL, by special case to judge, 16, 42. to the Court of Appeal, 19, 45. APPEARANCE, of parties, 17, 43. of third parties, 13, 36. of insurers, 17, 23, 43, 52, 96. APPLICANTS, who may be, 4, 28. APPLICATIONS, for arbitration, 7, 30. for registration of memorandum, 20, 47, 80. for execution against a third party, 14, 38. for stay of proceedings, 10, 33, 92, 99, 100. for suspension of weekly payments, 22, 50, 83. against insurers, 22, 51, 83. APPOINTMENT, of arbitrator by county court judge, 15, 40. of medical referee, 15, 102, 107. of arbitrator by judge of the High Court, 15, 40. ARBITRATION, before the judge or arbitrator, parties, 4, 28. application for arbitration, 7, 30. before the judge, time of hearing, 8, 31. notice thereof, 8, 31. service of notices, 9, 32. stay of proceedings, 10, 12, 33, 92, 99, 100. answer of respondents, 10, 33, 70. submission to award, 11, 34, 72. payment into court, 11, 34, 73. notice to third parties, 13, 36, 74. procedure, 3, 14. INDEX. Ill ARBITRATION— continued. medical referees, 15, 39, 101, 107. award, 15, 40, 75. before arbitrator appointed by judge, appointment of arbitrator, 16, 40. time and place of hearing, 16, 41. procedure, 16, 41. submission of question of law, 16, 42. subsequent arbitration, 17, 43. costs, 17, 18, 44. before committee or voluntary arbitrator, procedure not provided for, 1, 2. costs, 2. AEBITEATOK, voluntary arbitrator, 1, 2. must send memorandum to registrar, 19, 46. costs, 2, 18, 45. appointed by a judge, appointment of, by county court judge, 15, 40. judge of High Court, 15. may fix time and place of hearing, 16, 41. procedure before, 16, 41. may submit question of law to county court judge, 16, 42. subsequent arbitration, 17, 43. AWAED, how to be drawn up, 15, 40, 75. apportionment by, 5, 76, 97. execution upon, 5, 21, 50, 97. memorandum of, 19, 46, 78. BAILIFF, service of documents by, 9, 32. BANKRUPT EMPLOYER, notice to trustee of, 24, 52. examination of, 24, 53, 94. claim on insurers, 22, 51. CEETIFICATE FOR COMPENSATION, when plaintiff is unsuccessful in an action, 21, 50, 81. COMMITTEE, procedure before, 1, 3. memorandum of, 19, 46, 78. CONSOLIDATION, of applications against insurers, 24, 53. COSTS, generally, 18, 44. of solicitor or agent, 17, 18, 20, 48. lien of solicitor or agent, 20, 48. as regards third parties, 13, 37. as regards insurers, 23, 25, 95, 96. 112 INDEX. COUNTY COURT, selection of, 2. transfer from one to another, of the arbitration, 26, 55, 93. of proceedings against insurers, 24, 53. DIRECTIONS, as to third parties, 13, 37. as to insurers, 23, 51, 96. DISCOVERY, examination of insolvent employer, 24, 53, 94. DOCUMENTS, insolvent employer may he ordered to produce, 24, 53, 95. EXECUTION, on award, memorandum or certificate, 5, 21, 60, 82, 97. against third parties, 13, 38. against insurers, 23, 51, 86, 95. FILING, generally, 2, 66. of request, 7, 30. of answer, 11, 33. of submission to award, 11, 34. of notice claiming indemnity, 13, 36. of appointment of arbitrator, 16, 40. FIXING OF TIME AND PLACE OF ARBITRATION, by the judge, 8, 31. by the arbitrator, 16, 41. FORMS, under the Workmen's Compensation Rules, request and particulars, by injured workman, 69. by legal personal representative, 61. to settle apportionment, 63. to settle medical and burial expenses, 66. application for arbitration to review or vary weekly payment, 68. notice of time and place to applicant, 69. respondent, 70. answer of respondent, 70. notice admitting liability, 72. of payment into court by respondent, 72. of filing submission to award, 72. by registrar of payment into court, 73. of acceptance of weekly payment, 74. of payment into court, 74. by respondent to third parties, 74. award as regards, workmen, 75. dependants, 76. creditors for medical or burial expenses, 77. notice of day of hearing of special case, 77. INDEX. 113 FO'BMS— continued. form of memorandum, 78. inquiry as to genuineness thereof, 79. notice disputing it, 80. of application for registration of memorandum or rectification of register, 80. of application for determining the amount of costs, 81. certificate, 81. execution, 82. notice of application to suspend proceedings or weekly payments, 83. affidavit for summons against insurers, 83. summons to insurers, 84. notice to employer or his trustee, etc., 85. ordera gainst insurers, 85. execution against insurers, 86. register, 87. under the Treasury regulations, reference to a medical referee, 107. order on injured workman to submit himself to examination, 108. notice by medical referee to workman, 108. record of references to be kept by registrar, 109. medical referee's statement of fees, 109. under County Court Kules, notice by plaintiff of .payment of instalment, 99. affidavit of service of default summons, 99. undertaking of defendant applying for stay of proceedings, 100. notice to plaintiff that defendant defends on behalf of others, 99. njJTEEATE APPLICANT, registrar's clerk must assist, 8, 31. INDEMNITY, claims for, 13, 36. INSUEEE, claims against, 22, 51. JUDGE, proceedings before the arbitration, 4. at the arbitration, 8. fixes time and place for hearing, 8, 31. procedure at hearing, 14. powers as to transfer, 25, 55, 93. apportionment of compensation, 5, 24, 28, 52, 76, 97. as to third party, 13, 36. costs, 18, 44. costs as to third party, 13, 38. may appoint medical referee, 15, 39. may order workman to be examined, 15, 39. may allow expenses incurred at a medical examination, 18, 45. award of, 15, 40. may appoint arbitrator, 15, 40. may decide question of law submitted by arbitrators, 16, 42. must take a note of point of law, 19, 45. appeal from, 19, 45. may allow solicitor his costs, 20, 48. , , .. „„ o^ may give a solicitor or agent a lien for has costs or aUow deductions, 20, 84. 8 114 INDEX. JUDGE — continued. certificate after plaintiff has failed in an action, 21, 50, 81. may suspend proceedings, 22, 50. weekly payments, 22, 50. as to insurers, directions and orders, 22, 52, 94, 96. powers as to transfer and consolidation, 24, 53. costs, 25, 52, 96. LAW, question of law to be submitted to the judge, 16, 42. appeal from judge on question of law, 19, 45. MEDICAL EEPBEEES, appointment of, 15, 39. report of, 105. Treasury regulations, 101. fees, 105. MEMORANDUM: SCHED. II., CL. 8. nature, 19, 46. registration, 20. application to register or to rectify the register, 20, 47, 80. NOTICES, of time of hearing to applicant, 8, 31. respondents, 9. admitting liability, 11, 34. of payment into court, 11. of submission to award, 11. by registrar of payment into court, 11. by applicant of acceptance of weekly sum, 12. payment into court, 12. by respondent to third parties, 13, 36. of day of hearing of special case, 16. notice disputing memorandum, 20, 47. that genuineness is disputed, 20. of application for registration of memorandum or rectification of register, 20. of application for determining the amount of costs and the lien, 20, 48. of application to suspend proceedings or weekly payment, 22, 50. to employer or his trustee, etc., 24, 52. by medical referee to workman, 105. that defendant defends on behalf of others, 5, 30, 89. See Forms. PARTICULARS, filed with request, 7, 30. copies to be served on, respondents, 9, 32. contractors, 13, 36. PARTIES TO AJ!J ARBITRATION, applicants, 4, 28. respondents, 4. joinder of parties, 5, 89. under disability, 6, 30, 90. partners, 6, 91. when the employer has paid the amount of compensation, 7, 29. INDEX. 115 PARTNERS, how sued, 6, 30, 91. PAYMENT INTO COURT, by respondent, H, 34. stay of proceedings upon, 12, 36. by insurers, 23, 61, 96. PLAINT, by workman against insurers, 23, 51. PROCEDURE, before tbe judge, 3, 8. before the arbitrator appointed by him, 16. before a committee or voluntary arbitrator, 1, 2. PROCEEDINGS, before the arbitration, 4. at the arbitration before a judge, 8. at the arbitration before an arbitrator, 15. abatement, 23, 95. stay, 10, 12, 33, 92. suspension, 22, 60. in one court when the proceedings are registered in another court, 25, 54. transfer, generally, 26, 65, 93. as regards insurers, 24, 63. REGISTRAR, filing documents with, 2, 66. may send documents by post, 3. his clerk must assist illiterate applicants, 8, 31. must give notice of day of arbitration, 8, 31. must transmit respondent's answer to applicant, 11, 33. must transmit notice of submission or payment into court to applicant and to other respondents, 11, 34. notice of acceptance must be sent to, 12, 34. notice claiming indemnity must be filed with, 13, 36. appointment of arbitrator must be filed with, 40. appointment of arbitrator by judge of High Court must be lodged with, 15,41. must tax costs, 18, 45. must see to genuineness of memorandum, 20, 47. must add taxed costs to memorandum, 18, 44. must register certificate, 21, 50. must keep record of medical references, 104. investments and payment out of court by, 26, 63. as to insurers, affidavit must be lodged with, 22, 61. issue of summons by, 22. must give notice of payment into court, 23, 51, 96. RESPONDENTS, who may be, 4, 28. when employer need not be, 6, 7, 29. when dependants must be, 4, 29. SERVICE, generally, 2, 65. of copies of request and particulars, 9, 32. 116 INDEX. SEUYlGE—eontmrnd. of notices, 3, 56. of notice to third parties, 13, 16. of summons against insurers, 22, 51. STAY OF PROCEEDINGS, when one case selected as a test case, 10, 30, 33, 92. against respondent on payment into court, 7, 12, 29, 35. against insurer on payment into court, 23, 51, 95. applications to he made to the judge and not the arbitrator, 16, 42. SUBMISSION, notice of submission to award, 11, 34. of question of law to judge, 16, 42. SUBSEQUENT ARBITRATION, when before arbitrator, 7, 26, 43. when before judge, 17, 26. SUSPENSION, of proceedings, 22, 50. of weekly payments, 22. TERMINATION, of weekly payments, 26. TEST ARBITRATION, when one case selected, 10, 30, 33, 92. THIRD PARTIES, claims against, 13, 36. TIME OF HEARING, before a judge, 8. before an arbitrator, 15. 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