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Of Persons entitled to Compensation . VII. Of the Amount of Compensation VIII. Liability op the Employer IX. Procedure ..... 1 11 22 27 44 53 63 73 90 APPENDIX Workmen's Compensation Act, 1897 .... 107 Sections op Factory Act, 1878 .... 119 Sections op Factory Act, 1895 . . . .123 Act of Sederunt ... . . 128 Sheriff Courts (Scotland) Act, 1876, Sec. 52 . . 134 Suggested Forms ..... 135-139 Statutory Rules and Orders as to the Appointment and Payment of Medical Referees . . . .140 INDEX 149 Property of MARTIN P. CATHERWOOD LIBRARY NEW YORK STATE SCHOOL LAeOR RELATIONS Cornell University Library The original of tiiis 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/cu31924002279382 TABLE OF CASES CITED Case. Date. 1 Reference. Pages. Aboi-deen Trawling Co. v. Peters ■Adams v. Glasgow^ S.-W. Ry. 1899 1 F. 786 ; 36 S. L. R. 573 . 30, 32, 33 34 1875 3 R. 215 ; 13 S. L. R. 136 . 83 Appleby v. Horseley . 1899 15 T. L. R. 410 ; 43 Sol. Journ. 568 . 65,"66, 103 Ashley v. Rothesay Magis- 1873 11 M. 708 ; 10 S. L. R. 513 95 trates Barkley v. Simpson . 1897 24 R. 346 ; 34 S. L. R. 276 80 * Barrett u. North British 1899 36 S. L. R. 874 . ' 58 59 Railway Bartonshill Goal Company/ 1855 17 D. 1017 \ 3 Macq. 266 / " 2 V. Reid 1. 1858 Baxter v. Boswell 1899 6 S. L. T. No. 351 . 86 Bell V. Laing 1896 4 S. L. T. No. 252 . 59 Bennett v. Wtjrdie 1899 1 f. 855 ; 36 S. L. R. 643 . 94 95 Billings V. Holloway . 1898 (1899) 1 Q. B. 70 41 Blake v. Midland Railway . 1852 18 Q. B. 93 . . . 63 67 Bone V. Sorn School Board . 1886 13 R. 768 ; 23 S. L. E. 537 97 Bortick v. Head, Wrightson, 1885 53L. T. (N. S.)909 . 64 &Oo. Bradburn v. Great Western 1874 L. R. 10 Ex. 1 . 68 Railway Bramall v. Lees . 1857 29 L. T. (0. S.)lll . 57 Brownlie v. Tennant . 1854 .16D. 998 . . 18 Brydon v. Stewart 1855 2 Maoq. 30 . . . . 17 Calder v. Caledonian Railway 1871 9 M. 833 ; 8 S. L. R. 571 . ■". 83 Caledonian Railway v. Devine 1899 7 S. L. T. No. 128 '. 12 15 Caledonian Railway!). Paterson 1898 1 F. (J. C.) 24 . 29 Caledonian Railway v. War-J wick j 1897 1897 24 R. 429 ; 34 S. L. R. 317 25 R. (H. L) 1 ; (1898) A. C. 216 ; S. L. R. 54 35 I . 86 *Campbell ■;;. Caledonian 1899 36 S. L. R. 699 . . . : . 62 , 75 Railway Campbell v. Morrison . 1891 19 R. 282 ; 29 S. L. R. 251 86 Carter v. Drysdale 1883 L. R. 12 Q. B. D. 91 . . 93 Chadwick v. Ball 1885 L. R. 14 Q. B. D. 855 103 Chambers v. Whitehaven 1899 (1899) 2 Q. B. 132 . . 27, 28 33, 39, 40 , 41 Harbour Corars. Chandler v. Smith 1899 (1899) 2 Q. B. 506 .. . . 55, 71, 101 Clark V. Adams . 1885 12 R. 1092 ; 22 S. L. R. 740 94 Clark V. Caledonian Railway 1877 5R. 273; 15 S. L. R. 165 . 83 [Not yet reported in the Session Cases. ] TABLE OF CASES CITED Case. Date. Eeference. Pages. Clarke v. Carfin Coal Co. 1891 18 Pv. (H. L.) 63 ; 28 S. L. R. 960 . . 7, 57 Clarke v. Scott . 1896 23 R. 442; 33 S. L, R. 318 81 *Clenient v. Bell & Sons 1899 36 S. L. R. 725 . 57 Connolly v. Young's Paraffin 1894 22 R. 80 ; 32 S. L. R. 61 . 92 Oil Co. Cox 1). Great Western Railway 1882 L. R. 9 Q. B. D. 106 . 39 Dalton V. South-Eastern Ry. 1858 4 C. B. (N. S.) 296 . 57 Davis V. Main Colliery Co. . 1899 107 L. T. (0. S.) 135 . 58 Dickinson v. North-Eastern 1863 2 H. & C. 735 . 57 Railway DoUan i>. Linwood Brick- 1899 Not yet reported . 21 making Co. Doughty V. Fivbank . 1883 L. R. 10 Q. B. D. 358 39 Durham v. Brown Bros. 1898 1 F. 279 ; 36 S. L. R. 190 . 14, 15, 16, 21, 101 Durrie v. Warren 1899 15 T. L. R. 365 . 32 Edwards v. Godfrey . 1899 (1899) 2 Q. B. 333 . 73, 75, 96 Edwards v. Hutcheon . 1889 16 R. 694 ; 26 S. L. R. 550 . 84, 86 Eistoni). North British Railway 1870 8 M. 980 ; 7 S. L. R. 638 . . 6, 57 *Fagau v. Murdoch 1899 36 S. L. R. 921 . 53, 59, 60 Fagan i\ Reed Brothers 1899 43 Sol. Jour. 546 96 Farwell v. Boston and Wor- 1842 38 Am. Dec. 339 ; 3 Macq. 316 2 cester Railway Corporation Flowers v. Chambers 1899 (1899) 2 Q. B. 142 . 30, 32 Franklin v. South-Eastern 1858 3 H. & N. 211 . 57 Railway Fraser v. Dimlop 1822 1 S. 258 (N. E. 243) . 2 Gardiner v. Main 1894 22 R. 100 ; 32 S. L. R. 91 . . 81, 86 *Geary v. Dixon . 1899 36 S. L. R. 640 . 70 Gillard v. Lancashire ami 1849 12 L. T. (0. S) 356 67 Yorkshire Railway Gorman -o. Morrison . 1885 12 R. 1073 ; 22 S. L. E. 708 81 Grainger v. Aynsley . 1880 L. R. 6 Q. B. D. 182 . 55 Hall V. Suowden . 1899 (1899) 2 Q. B. 136 . 30, 35 *Hanlin v. Melrose & Thomson 1899 36 S. L. R. 814 . . 7, 56 Hearn v. Phillips 1885 1 T. L. R. 475 93 Heaven v. Pender 1883 L. R. 11 Q. B. D. 503 . 84, 86 Henderson ■». Paul 1867 5 M. 628 ; 3 S. L. R. 316 . 97 Hicksi). Newport, etc. , Railway 1857 4 B. & S. 403 . 68 Hoddinott v. Newton . 1899 (1899) 1 Q. B. 1018 . 39, 41. 42, 43 Holleran v. Bagnell . 1880 6 L. R. Ir. 333 . 57 Holness v. Mackay & Davis . 1899 (1899) 2 Q. B. 319 18, 102 Irons V. Davis 1899 (1899) 2 Q. B. 330 . 71 *Jackson v. Rodger 1899 36 S. L. R. 851 . 32, 34, 37, 82 Johnson v. Lindsay . 1891 (1891) A. C. 371 . 4 Johnston v. Shaw 1883 21 S. L. R. 246 . 94 Jones V. Ocean Coal Co. 1899 (1899) 2 Q. B. 124 . 65, 66 Keast V. Barron Hematite 1899 15 T. L. R. 141 . 66 Steel Go. Keen v. Millwall Dock Co. . 1882 L. R. 8 Q. B. D. 482 . 93 Keith V. Keir 1812 10th June 1810, F. C. 2 Lang V. Kerr 1878 L. R. 3 App. Ca. 529 . 53 * \_Not yet reported in the Session Cases. ] TABLE OF CASES CITED Case. Date. Reference. Pages. Loudon & N. -W. Ry. v. Llan- 1896 (1897) 1 Q. B. 287 28 dudno Improvement Comrs. Lowe V. Pearson . 1898 (1899) 1 Q. B. 261 17 Lowth V. Ibbotson 1899 (1899) 1 Q. B. 1003 . 27 Lyons v. Wilkins 1899 (1899) 1 Ch. 255 . 7 Maodonald v. Macdonald . 1846 8 D. 830 . . . 57 M'Fadyen v. Dalmellington 1897 24 R. 327 ; 34 B. L. R. 266 92 Iron Co. M'Gill V. Bowman 1890 18R. 206; 28S. L. R. 144 86 M'Govan v. Tancred, Arrol, 1886 13 R. 1033 ; 23 S. L. R. 737 93 &Co. M'Gregor v. Dansken . 1899 1 F. 536 ; 36 S. L. R. 393 . . 4, 25, 26, 42, 55 76, 77, 78 M 'Lean v. Carse . 1899 1 F. 878 ; 36 S. L. E. 678 . 92 M'Martin'!). Hannay 1872 10 M. 411 ; 9 S. L. R. 289 . 5 M'Neill V. Wallace 1853 15 D. 818 5 McNicliolas v. Dawson 1899 (1899) 1 Q. B. 773 . . 16, 19 21, 35, 36 M'Nicol V. Speirs & Gibb . 1899 1 F. 604 ; 36 S. L. R. 428 . 11, 16, 17, 20, 102 Medd V. Maolver 1899 15 T. L. R. 364 . 32 Mellor V. Tomkinson . 1899 (1899) 1 Q. B. 374 . 43 Mowbray v. Merryweatber . 1895 (1895) 2 Q. B. 640 . . . 81, 85, 86 Moyle V. Jenkins 1881 L. R. 8 Q. B. D. 116 . 93 Mulligan v. M 'Alpine . 1888 15R. 789; 25S. L. R. 589 5 Murnin v. Calderwood 1899 1 F. 634, 862 ; 36 S. L. E. 453, 648 ; 6 S. L. T. No. 427 43, 101 Murray v. Lanark Road Trs. 1888 15 R. 737 ; 25 S. L. R. 545 5 Nelson v. M'Pliee 1889 17 R. (J. C.)l; 27 S. L. R. 12 . 53, 83 Nicolson V. Maoandrew 1888 15 E. 854 ; 25 S. L. R. 607 . 26, 83 Noel V. Redruth Foundry Co. 1896 (1896) 1 Q. B. 453 .. . 66 Oram v. Brearey . 1877 L. R. 2 Ex. D. 346 . 103 Ovington v. M'Vicar . 1864 2 M. 1066 .... . 81, 86 Palmer v. Wick, etc., Ship- 1894 21 R. (H. L.) 39 ; (1894) A. C. 318 ; . 86, 88 ping Co. 31 S. L. R. 937 Portobello Magistrates v. 1882 10 R. 130 ; 20 S. L. R. 92 . 103 Edinburgh Magistrates Potter 1). North British Ry. 1873 11 M. 664 ; 10 S. L. R. 446 5 Powell V. Brown 1898 (1899) 1 Q. B. 157 . 28, 100, 102 Previsi v. Gatti . 1888 4 T. L. R. 487 . 93 Price V. Marsden 1899 (1899) 1 Q. B. 493 .. . 64 Priestly v. Fowler 1837 3 M. & W. 1 2 Pym V. Great Northern Ry. 1863 4 B. & S. 396 . 57, 67 Pyner v. Bullard 1897 14 T. L. R. 57 . . . 6 *Rae V. Eraser . 1899 36 S. L. R. 782 . 40, 101 Eees V. Thomas . 1899 (1899) 1 Q. B. 1015 . 15, 21 Rohl V. Metropolitan Railway 1890 7 T. L. R. 2 18 Rowley v. London & N.-W. 1873 L. R. 8 Ex. 221 . 68 Railway Roxburgh County v. Dal- 1894 21 R. 1063 ; 31 S. L. R. 906 103 rymple's Trs. Rumbolli). Nunnery Colliery Co. 1899 80 L. T. (N. S.) 42 ; 43 Sol. Jouni. 242 20, 102 Sim v. Evans 1875 23 W. R. 730 38 Simmons v. White 1899 (1899) 1 Q. B. 1005 ; 106 L. T. (0. S.) 458 58, 102 * [Not yet reported in the Session Cases.] TABLE OF CASES CITED Case. Date. Reference. Pages. Skeggs v. Keen . 1899 107 L. T. (0. S.)318 . 96 *SmaU V. M 'Coiinick & Ewing 1899 36 S. L. R. 700 . '. 55, 64 65 Smith V. Baker . 1891 (1891) A. C. 325. 6 Smith v. Lancashire and 1898 (1899) 1 Q. B. 141 12,' 16, ioO, 102 Yorkshire Railway Smith V. Wilsons 1893 21 E. 162 ; 31 S. L. R. 125 98 Stephen v. Lord Advocate . 1878 6 R. 282 ; 16 S. L. R. 195 . 81 Stewart v. Coltness Iron 1877 4 R. 952 ; 14 S. L. R. 575 . 5 Company Stone n. Hyde . 1882 L. R. 9 Q. B. D. 76 . 93 Straiten Estates Ltd. v. 1880 8R. 299; 18 S. L. R. 187 . 81 Stephens Stuart V. Evans . 1883 49 L. T (N". S.)138 . 54 Sweeney v. M'Gilvray 1886 14 R. 105 ; 24 S. L. R. 91 18 Sword V. Cameron 1839 1 D. 493 . 2 Thomas v. Quartermaine 1887 L. R. 18 Q. B. D. 685 5 Thomson r. Robertson 1884 12 R. 121 ; 22 S. L. R. 97 . 93 *Todd V. Caledonian Railway lg99 36 S. L. R. 784 . 19,' 20, 102 Tuniiey i'. Midland Railway 1866 L. R. 1 C. P. 291 17 Wallace v. West Calder Co- 1888 15 R. 307 ; 25 S. L. R. 458 67 operative Society Weems v. Mathieson 1861 4 Macq. 215 .. . 7 Whitehead r. Blaik . 1893 20 R. 1045 ; 30 S. L. R. 916 58 *Whitton V. Bell 1899 36 S. L. R. 754 . 27 Williams v. Birmingham 1899 (1899) 2 Q. B. 338 . 6 Battery Co. Wilson v. Crichton 1898 5 S. L. T. No. 443 76 Wingate v. Monkland Iron Company Wolfe V. Great Northern Ry. 1884 12 R. 91 ; 22 S. L. R. 74 . 2 1890 26 L. R. Ir. 548 . 58 Wood V. Walsh & Sons 1899 (1899) 1 Q. B. 1009 . . .39, 41 , 42 Woodham v. Atlantic Trans- 1898 (1899) 1 Q. B. 15 . 24 , 33 port Co. Woodhead v. Gartness 1877 4 R. 469 ; 14 S. L. R. 320 . 2 Mineral Company * {^Kul yet reported in the Session Cases. WORKME]^['S COMPEKSATIOI^ ACT, 189T CHAPTER I INTKODUCTORY In order to appreciate the extent of the change in the law Employers' effected by this Act, it is necessary to advert to the state of the ilf presLt 1". law of employers' liability prior to 1st July 1898. By the law prior to that date the only liability of an employer to make reparation to a workman injured in his service, was founded on fault. Employers' liability was a branch of the law of negligence, and arose from the same principle as liability to a third party. The principle is that every person is liable in damages for Negligence, injury arising from his failure to use reasonable care for the safety of the person injured. In its original and direct applica- tion the doctrine is easily understood. But its application to cases between employers and employed has given rise to specialties and exceptions which have been the occasion of many difficulties. A rapid survey of this branch of the law will show how complicated its provisions have become, and how difficult it often is for employer and employees to ascertain their legal position, even after the Legislature has interfered to correct certain judge-made refinements. Starting from the simplest illustration, suppose that A. drives recklessly along a road and runs down B. and injures him. It is obviously reasonable and in accordance with principle that A. should make reparation to B. But the next step in the law of negligence, which was to make a person liable for the act of his servant, is not easUy reconciled with the above-mentioned principle of liability. Still this vicarious liability has long been established. In Scotland, as far back as 1822, it was held that WORKMEN'S COMPENSATION ACT, 1897 employment. a person run over by a horse and van carelessly driven by a brewer's servant had an action against the brewer.^ This decision recognised vicarious liability without any qualification, and the result, of course, was that a workman injured through the negligence of another workman could hold the common master responsible for that workman's negligence. Thus we find that a quarryman injured through the blasting of rock being carried out carelessly by one of the servants of the quarrymaster, was entitled to recover damages from the master.^ Common It did not occur to Scots lawyers that the fact of the injured person being in the same employment as the person who injured him made any difference in the legal aspects of the case, and that a master was under less obhgation to his own workman than to a stranger with whom he had no contract. But this view was enunciated and upheld both in England^ and in America,* and was ultiruately, in 1858, introduced into the law of Scotland by a decision of the House of Lords revising a decision of the Court of Session.^ By this doctrine of Common Employment, as it was called, a master was entirely freed from liability to a servant where the servant's injury was caused by the fault of a fellow-servant. As in industrial undertakings most injuries due to negligence arise from that of a fellow-servant, and not from that of the employer, whose personal attention must necessarily be limited, it followed from this decision that in the greater number of cases an injured workman had no remedy. His recourse against the actual wrong-doer, invariably an impecunious workman, being only a worthless decree, may be disregarded. Nor did the judge- made doctrine of Common Employment stop with servants under the same master, for legal ingenuity soon discovered that the principle, which was said to exclude the claim of servants, would also cover the case of a third party who was engaged in a common work with the servant who injured him, or was injured by him.^ 1 Fraser v. Dunlop, 1822, 1 S. 258, Corporatimi, 1842, 38 Am. Deo. 339 ; 3 N. E. 243 ;, see also Keith v. Keir, F. C, Macq. 316. 10th June 1812. ^ BartonsJiill Coal Company v. Beid, 2 Sword V. Caoneron, 1839, 1 D. 493. 1855, 17 D. 1017 ; 1858, 3 Macq. 266. ^ Priestly v. Fowler, 1837, 3 M. and ^ Woodhead v. Gartness Mineral Coin- W. 1. pany, 1877, 4 R. 469 ; Wingate v. ^ Farwell v. Boston and Worcester Monlcland Iron Company, 1884, 12 E. 91. I\ INTRODUCTORY To remedy the disability under which an injured workman Doctrine lay by reason of the introduction of these doctrines into the law, two changes were effected. They were brought about by different agencies, the first being statutory, the second judicial. By the Employers' Liability Act of 1880 the defence of Employers' /-. -F^i ■ ,, 11-11 A Liability Act (Jommon Jimployment was to a certam extent abolished. A of 1880. master then became liable for the fault of a fellow-servant of the pursuer, subject to three concurring limitations. The work- man suing had to be of a certain class ; the servant, for whose fault the master was to be made liable, had to be of a certain grade ; and the amount of damages recoverable was not to exceed three years' wages. The form in which the Act was drawn suggests that a new ground of liability was created, and that the right to reparation depends on the happening of any of five enumerated events, but the Act has always been looked upon as a leading example of involv ed draughtsm anship, and the true meaning and effect have been found to be as above stated. The relief afforded by this Act, however, has not been complete, and its practical working has caused great dissatisfaction both to employer and employed. Certain classes of workmen, such as seamen, menial servants, and shop assistants, are excluded altogether from its benefits, and many injuries — viz. all those occtirring through the fault of a servant who is not in a position of authority or control — are left unprovided for. Further, the dubiety as to the validity of a claim, and the expense of enforcing and defending it, have been felt to be excessively great. In Scotland, in particular, where oases can be brought into the Court of Session for jury trial, the latter objection has been forcibly illustrated. On the whole, therefore, it has been found that the Act has not provided a sufficient remedy for the evil it was intended to remove, and that the benefits which it has conferred have been accompanied with conditions which have deprived them of much of their value to the employed, and have rendered them singularly irksome to the employer. The other modification of the doctrine of Common Employ- •^".^s"™ ^'• ment came from the House of Lords itself. It held that the lower Courts had gone astray in applying the doctrine to cases of workmen engaged at the same undertaking, but under different masters. The theory that each workman had under- taken to run the risks due to the negligence of other workmen at the job was repudiated. The true theory was declared to be WORKMEN'S COMPENSATION ACT, 1897 Proposed legislation. Contributory negligence. that a servant, by his contract with his master, had undertaken the risks of the negligence of the servants of that master, and that the plea being founded on contract was not applicable in the case of those between whom there was no contractual relation.! It is obvious that the theory which the House of Lords rejected was one which would soon have led to the extinction of common law actions on account of injuries sustained by those engaged in industrial undertakings. Notwithstanding, however, the Employers' Liability Act of 1880 and the decision of the House of Lords in Johnson v. Lindsay, it was stiU felt that workmen were not put in the position to which they were entitled in respect of reparation for injuries received in the course of their work. For many injuries due to negligence an injured workman could not recover. A. large part of the law of Common Employment still survived, and, in addition, the growing practice of employing sub- contractors relieved employers of the liability they would have incurred if their operations had been carried on by their own workmen. Of course the injured person had always an action, assuming him to be answerable, against his own master, the sub- contractor, but these men usually belonged to a class but little superior to the injured, — pit-sinkers and gangers, for instance, — against whom it was useless to take a decree.^ To remedy this, Mr. Asquith's Bill of 1893 was introduced, which proposed to abolish Common Employment altogether, and, as amended, to make an employer liable for the negligence of a sub-contractor and his servants. This Bill, however, never became law, and although various BiUs to abolish the defence of Common Employ- ment have since been announced, the law is not yet altered. In addition to the defence of Common Employment, other defences were introduced, and were developed along with the growth of the law of negligence. Chief among these stands contributory negligence, which has been greatly elaborated and refined in this* country as compared with continental countries. Stated in general form, the plea is that, granted the defender was in fault, yet the injured person having been also in fault, and his fault having been a direct cause of his injury, he is not entitled to recover damages. The rigour of this plea has not * Johnson v. 371. Lindsay, 1891, A. 0. 2 See M'Gregor v. Dansken, 1899, 1 F. 536, 547. INTRODUCTORY been sustained in those eases where juries have been free to deal with it, but the theory has remained untouched both by legislation and judicial decision. It is to be observed, however, that the onus of establishing this defence is laid on the defender, and in order to maintain it successfully a defender must establish it as clearly as a pursuer requires to establish his' ground of action.^ Closely allied to the foregoing is the plea of seen danger. Seen danger, which means that the pursuer with his eyes open encountered the danger of which he complains. An illustrative case is that of a workman causing an explosion by striking a light near an uncovered barrel of gunpowder.^ Though the word negligence does not appear in this plea, it is, in reality, founded on the negligence of the pursuer, and where the defender has also been negligent it becomes a plea of contributory negligence. It has probably been dignified with a special name, since its chief use is as a preliminary plea by which the defender seeks to dispense with inquiry. The defender's contention then is that, on the facts stated by the pursuer, he has disclosed that he caused the injury by courting the danger, and that it is immaterial whether the defender was negligent or not. The next defence with which an injured worlanan may be VoUnti met is an extension or development of the foregoing, but is not so simple or so easily a.pplied. It has not, in fact, received unvarying treatment from the Courts themselves. A perusal of the cases gives the impression that the conflict of decisions arises from the fact that the Courts have not proceeded on any clear conception of the exact nature of the defence. The plea is usually expressed by the maxim volenti non fit. injuria. At one time it was held that knowledge of a risk, and the absence of compulsion to face it, or, in other words, the existence of an option to avoid it, satisfied the requirements of the maxim.^ But it has since been explained that mere knowledge of a risk is not sufficient, and that the maxim is really volenti, and not scienti.^ The House of Lords has recently emphasised this distinction by holding that the particular risk must be brought to the workman's notice at the time when it is to affect him, 1 M'Martin v. Hannay, 1872, 10 M. ^ M'mUl v. Wallace, 1853, 15 D. 818, 411, 413; Murray v. Lanark Boad 820; Stewart y. Coltness Iron Oo., 1877, Trustees, 1888, 15 R. 737 ; Potter v. 4 E. 952, 956. North British Railway, 1873, 11 M. 664. * Thomas v. Quartermaiiie, 1887, L. R. rwn fit injuria. '■ Mulligany.H'Alpine, 1888,15R.789. 18 Q. B. D. 685, 696. WORKMEN'S COMPENSATION ACT, 1897 Theory of the maxim. Rights of relatives of deceased. and that consent to undertake any particular risk is not to be inferred from a knowledge that he is from time to time exposed to risks of that nature.^ Later cases have restricted the applica- tion of the maxim still further, and the Courts have held workmen entitled to recover, who, in the absence of a safer access, knowingly put themselves in danger by attempting to climb up a rope ^ and over a wall.^ In both cases the Court refused to hold that the injured person had agreed to take the risk. Although the application of the maxim has been thus far determined, it is not easy to formulate the theory on which the Courts have proceeded. There are two views which may be taken. The one is that a workman by his contract has undertaken to run the risks incident to the work as he knows it is carried on. This aspect has to be considered with reference to alternative states of fact. If the risk is one which is necessarily present, one that cannot by any care be eliminated, that is not a case for the application of the maxim at all, for there would be no liability on the part of the employer, since he would not be in fault. But if extra precautions and expense would remove the risk, such as having a man specially employed to give warning every time the jib of a crane came in the workman's direction, it may be said that the master, though otherwise he would be liable, is relieved, because the servant agreed to work without these precautions being taken. This view would refer the defence, like that of common employment, to implied agreement in the contract of service, and would mean, in effect, that an employer, having been relieved of a duty otherwise incumbent, was not in fault. The other view is that, there being no implied agreement, the employer has been in fault in not provid- ing the extra precautions, or in not removing the risk, but that the workman, knowing the risk, voluntarily encounters it. In this view the defence is analogous to that of seen danger, and consequently is a species of contributory negligence. It only remains to be noticed that in cases of fatal injury the right to reparation depends upon propinquity, and the mutual obligation to aliment existing between the deceased and the claimant.* Those entitled are husband, wife, ascendants and ^ Smith V. Baker, L. R. 1891, A. C. ^ jjr^mams v. Birmingham Battery 325. Co., (1899) 2 Q. B. 338. 2 PijiKr V. Billiard, 1897, 14 T. L. R. <■ Eisten v. North British Railway, 57. 1870, 8 M. 980, 984. INTRODUCTORY descendants,! excluding bastards.^ The law has undergone no change in this respect, nor has there been any proposal to alter it. It may be observed, however, that while in Scotland a claim may be made for solatium, alone, or in addition to patrimonial loss, the law of England does not allow such a claim.^ The law of employers' liability, therefore, prior to 1st July Summary. 1898, or in so far as founded on negligence, may be summed up in the following propositions : — 1. A workman is entitled to damages where his employer's fault has caused the injury. 2. A workman is entitled to damages from his employer under the Act of 1880, where the fault of another of the \ employer's workmen, placed by him in a position of authority, has caused the injury. ' \ 3. Under the Act of 1880 the maximum sum recoverable is three years' wages, according to a certain standard. 4. In all cases the onus of proving negligence is on the claimant. 5. An employer relieves himself of liability by proving that — (a) The workman was also in fault in such manner that his fault was the proximate cause of the injury. (h) The workman voluntarily faced the risk. (c) In cases raised under the Act of 1880, the person for whose fault he is sought to be held liable was not a servant, but a sub-contractor. (d) The workman had contracted out of the Act. The Workmen's Compensation Act does not attempt to Workmen's enlarge a workman's right to reparation for injury by alter- Compensatiou ing or extending the law of negligence. That is the way in which the Act of 1880 dealt with the question, and was also the way proposed in Mr. Asquith's Bill of 1893. But the objects of the present Act, as disclosed by its terms,* could not be served by any provisions which depended upon an action at ^ Weemsv. MatMeson, 1861, 4 Macq. " Reference to speeches made in Parlia- 215 ; Hanlin v. Melrose <£- Thomson, ment is not permissible for the purpose 1899, 36 S. L. E. 814. of construction. Lyons v. Wilkins, (1899) 2 Clarke v. Carfin Goal Company, 1 Ch. 255, per Lindley, M. R. , 264. 1891, 18 E. (H. L.) 63. Hardcastle on Statutes, 2nd ed., 143. ' Lord Campbell's Act, 1846, see infra, p. 56. 8 WORKMEN'S COMPENSATION ACT, 1897 law founded on negligence. This Act, therefore, deals with the matter in an entirely new way. So far as its main provisions are concerned, the law of negligence might have had no existence, and this might have been the first attempt to deal with the question of injuries to workmen in the course of their work. The Act is entirely unrelated, except by way of contrast, to anything in the law. What has been written above as to the development of the law of negligence, both judicially and by statute, shows what has preceded this enactment in point of time, but, while pointing out the state of matters for which a remedy was sought, does not suggest the method by which the remedy has been effected. The new provisions are not founded on any previously existing legal theory of liability, and do not invoke the ordinary procedure of the Law Courts. Compensation The leading provision of the Act is to give to workmen for all injuries. . i.- c i engaged m certain employments compensation tor personal injuries resulting from accidents occurring therein. The cause of accident is immaterial. It is the fact of injury which entitles to compensation. Legal theory of This right to recover and liability to pay compensation must be assigned to contract. The effect of the Act is to add to every contract of service between the parties to whom it applies a new and implied term. An employer, in addittion to under- taking to pay wages, insures his servant against accident, the terms of this obligation being found in the Act. But no new obligation is placed on the servant. It may be that, as a con- sequence of increased cost of production, wages will be lowered, but the Act disregards economic questions, and it is not proposed to discuss them here. Contrasted Two points on which this scheme of compensation differs witn German -"^ ^ ■■; scheme. from that adopted in Germany may be noticed. In that country an injured workman gets relief in the first instance from a sick fund. He is maintained by it for the first thirteen weeks of incapacity, if incapacity lasts so long. This sick fund is created by compulsory contributions from both masters and men, the former paying in the proportion of one-third, and the latter of two-thirds. In the case of death, or incapacity enduring beyond the period of thirteen weeks, compensation is obtained from another fund maintained wholly by the employer. This fund is provided through all the employers in a particular trade being formed into an association for the purpose, and the amount of INTRODUCTORY the contributions required being levied from them. In the result, therefore, the German scheme is less favourable to the workmen, inasmuch as they are made to contribute to the insur- ance, and more favourable in respect that workmen have an association of employers, instead of a single employer, to look to for payment. In this country, employers who are under the Act will, no doubt, as a rule, either form associations and thus insure themselves, or will effect insurances with public companies, and if they do so, a workman, as will be seen, will have the security of the insurers for the payment of his compensation. But the Act leaves an employer free to insure or not, as he pleases. Though a new right is conferred on a workman, his debtor (dis- regarding an employer's liability for a contractor) remains the same as under the common law. The fact that accident causing injury, fer se, confers a right Difference , , . . -. , T , • -1 1 ■ • • n J.1 between claim on the mjured at once distmguishes a claim arismg under tne under Act and present Act from one at common law, or under the Act of 1880. S'"*'^- The result is that, as no question as to fault arises, inquiry into the cause of an accident is, as a rule, unneccessary. An injured workman will know that he has a claim for compensation, and an employer will know that he must pay. The defences at present open to a master in an action at law are quite unavail- able, and the ordinary rules as to the recovery of damages are also inapplicable. The grounds upon which an employer may successfully resist Summary of - dsftncGS unilcr a claim appear under the Act to be chiefly the following : — Act. 1. The claim has not been timeously brought. 2. Damages have already been recovered, or proceedings taken, at law. 3. In case of fatal injury, there is no title to claim, or no title to claim in the capacity alleged. 4. The employment in which the accident occurred is not under the Act. 5. The occurrence complained of — (a) is not an accident in the sense of the Act ; or (h) was caused by the serious and wilful misconduct of the claimant. 6. The accident did not arise out of and in the course of the employment. 7. The person claimed against is not the one whom the Act makes liable. 8. The sum asked is excessive in cases of — (a) fatal injury lo WORKMEN'S COMPENSATION ACT, 1897 and claim by one partially dependent ; and (&) claim by injured person himself. In the commentary on the Act which follows, the plan has been adopted of selecting its leading provisions and treating of them in separate chapters. Consequently, the commentary does not adhere to the order of sections in the Act, but collects from various parts of the Act what seems pertinent to the subject of the chapter. It is thought that in this way the general scope of the Act will be better brought out, and that points of detail, through reference to the index, will be no less accessible, than by annotating each section seriatim. CHAPTER II OF THE ORIGIN OF THE INJURY If in any employvient to which this Act applies, personal injury hy Accident in accident arising out of and in the course of the ernployment is caused to a workman, his employer shall, subject as hereinafter Tiuntioned, be liable to pay compensation in accordance with the First Schedule to this Act. " Injury " and " accident " are here used in a popular or Accident. non-legal sense. Th.g__legal_meaning of the _^worcl accident is damnum fatale, or an occurrence which is not to be foreseen or preventecfTS^op'posed to one due to negligence. Accident in its legal use describes an event by reference to a cause ; in its popular or wider meaning it describes an event apart altogether from its cause. It is a sudden occurrence out of the usual order of work. To personal injuries arising from such an event the Act applies.^ To give the word its legal meaning would restrict the application of the Act to those losses for which there has been hitherto no legal remedy, which is obviously not the meaning of the Act. Whether the occurrence arose from negligence, or was due to latent defect, or such like cause, is here immaterial. But " accident," even in its wider meaning, introduces a Not sickness, limitation to the injuries for which the Act provides. Not all personal injuries received in the course of work are included. Accident does not apply to events due to causes which are known, and which become injurious by continuous action. Deaf- ness caused by working at riveting, poisoning from continued working at white lead manufacturing, ague from working in brass, and the like, cannot be described as injuries due to accident. Another limitation is introduced by the words " arising out ' It has been observed that the Act Lord M'Laren in M'Nicol v. Speirs d- does not regard an injury attributable to GiM, 1899, 1 F. 604, 608 ; but this ex- the serious and wilful misconduct of the coption has been specially provided for injured as due to an "accident" — per by the Act. 12 WORKMEN'S COMPENSATION ACT, 1897 Sec. Arising out of the employ- ment. Accident not caused by workman. 1 (1). of and in course of the employment." These provisos are cumu- ~ lative. An accident may arise in course of the employment, while not out of the employment, and vm versd, but both elements are essential to the recovery of compensation.-^ Nice questions occur under both divisions. Questions as to whether an accident arises out of the employ- ment may be raised by two different states of fact. A workman engaged at the employment may be injured by some occurrence which he has done nothing to produce, which affects him because he is within its reach, but which he has in no way caused. On the other hand, his injury may be due to something he himself has done, to an occurrence which he has caused or helped to cause. For instance, a steeple-jack on the top of a chimney stalk may be killed by a flash of lightning, or by falling there- from through his recldess behaviour. A test whether an accident arises out of the employment or not, which might be supposed to be easily applied in the former class of cases, would be whether the cause of accident was external to the employment. Suppose, as has happened, that a chimney stalk or wall adjacent to a factory falls and injures those working therein. This occurrence could not be described as arising out of the employment in which those injured were engaged. Or suppose that the chimney or wall was being erected in the factory in which those injured were employed, and was being erected by the landlord or by a sub-contractor, for whom the factory occupier is not liable under the Act. Presumably the answer would, still be that the accident did not arise out of the employment, for a building in the course of construction would be used in the builder's employment, and would have no more relation to the factory work than any adjacent buildings.^ But, on the other hand, if the building had been completed, and was being used in the employer's business, there could be no doubt that its fall would be an accident arising out of the employment. There would be no difference between such an occurrence and the break-down of a machine used for the factory purposes. ^ Smith V. Lancashire and Yorkshire Railway, (1899) 1 Q. B. 141, 143. Sec. 1 is misquoted ill the report, "or" being printed instead of " and. " ' Ste Caledonian Railway v. 1899, 7 S. L. T. No. 128, where it was remarked that a master was not liable for an accident arising independently of his employment. OF THE ORIGIN OF THE INJURY 13 The mere fact, however, of a cause being external to the Sec. 1 (1). employment will not be sufficient to exclude all such cases from the Act. Take the case, for instance, of a workman engaged at the repair of a sewer on a public street, and injured by a negli- gently driven horse. It is thought that this would be an accident arising out of the employment. The risk would be connected with the engineering work in which he was engaged, more than it would be with merely walking on the street as a pedestrian, for the latter is free to attend to his safety, while the accident to the workman may be said to be due to his occupa- tion having placed him in a position where he is exposed to such risks, and having at the same time monopolised his attention. There may be taken also, as an illustration, the case of fire breaking out in, or being communicated to, a factory, the article made therein not being of an unusually inflammable nature, and where, either from the fire or from the rush to escape, a workman is injured. The injury in this case would result from being confined in the building in which the em- ployment was carried on, and it is thought that such a risk would be covered. For if the fire broke out in a mine, or a match or gunpowder factory, the case would clearly be in- cluded, and it does not appear that any valid distinction arises from the fact that there is less risk in the one case than in the other. In the eases where an accident is caused by, or partly caused Accident by, the action of the workman himself, it is plain that it can butatie to"" arise out of the employment only if the workman at the time workman, was doing an act within the employment, and that it does not arise out of the employment if the workman's act was outwith the employment. It is difficult in this connection to distinguish " arising out of " from '* in the course of," and, indeed, the two phrases seem to be synonymous. It will be convenient, therefore, to treat cases of this sort under the head of " arising out of the employment." Before doing so, however, it is necessary to advert to the Meaning of meaning of " employment," for it can be taken in two senses. The ment.™^ °^' word employment may be used in a general sense, and mean the undertaking, industry, or trade, such as mining, building, or baking, carried on by an employer, or it may be used in a more special sense, and mean the service which the workman has contracted 14 WORKMEN'S COMPENSATION ACT, 1897 Sec. 1 (1). to perform, or, in other words, his employment.^ The latter, for several reasons, appears to be the true meaning. " The employ- ment," as used in this section, naturally refers to the opening phrase, " If in any employment to which this Act applies," and that in turn refers to sec. 7 (1), which says, "This Act shall apply only to employment by the undertakers ... on, in, or about a railway," etc. " Employment " here obviously means a contract of service in connection with some industry, and not the industry itself. Further, it appears that the Act does not intend to give compensation for every accidental injury arising out of and in the course of the industry. If a workman leave the part of the premises where his work is and goes to another where he has no business to be, and an accident happens to him there, he will not be entitled to compensation. For instance, if a time- keeper in a factory goes to the engine-house to chat with the engineer and is injured by an escape of steam, he will have no claim.^ But the claim is excluded, not because the accident did not arise out of and in course of the industry (for the engineer, if injured, could certainly recover), but because the accident did not arise out of the timekeeper's work. In the course In ascertaining whether an accident has happened to a work- ment. man in the course of his work, the spirit rather than the strict letter of his contract of employment has been regarded. If he was acting, or supposed he was acting, for the furtherance of the master's work, the fact that he acted mistakenly will not necessarily bar a claim. In the earhest case, a workman who was engaged to assist a boilermaker in an engineering factory, followed him, without invitation, to a tank from which water was leaking, and, taking a wrong and very dangerous way there, was killed. The workman's representatives were found entitled to compensation, upon the simple ground that the boilermaker's duty was to see to the leak, and that the duty of the deceased was to assist the boilermaker. In repelling the arguments for the employer, however, two propositions of importance were laid down. It was said : " First, that a man does not cease to be in the course of his employment merely because he is not actually engaged in doing what is specially prescribed to him, if in the course of his employment an emergency arises, and without ' It may "be noted that the word is ^ See Durham v. Brown Bros., 1898, used in both senses in sec. 4. 1 F. 279, per Lord M'Laren, 286. OF THE ORIGIN OF THE INJURY 15 deserting his employment, he does what he thinks necessary for Sec. 1 (1). the purpose of advancing the work in which he is engaged in the interest of his master .... Second, it does not seem to be arguable that a man ceases to be in the course of his employment because he takes a wrong or a dangerous method of doing what might be done safely if it was to be done at all." -^ The same view as to extent of a servant's duty on the occur- Emergency, rence of an emergency has been taken in an Enghsh case. In it a miner, on the occasion of the accident, was in the course of his employment taking a report from the pit to the office. There was a tram running in the direction in which he was goiag ; and, though he had no business to do so, he got on to it. While he was riding on the truck, the horse bolted, upon which he jumped down, and in endeavouring to stop the horse was killed. It was argued that this accident did not arise out of his employ- ment, because it was the result of a voluntary act on his part, viz. his attempt to stop the horse. But it was held that the deceased was acting in the interest of his master in an emer- gency which suddenly arose, and in a way anyone would naturally have adopted. " I think, therefore," said A. L. Smith, L.J., " that the accident arose out of his employment ; and there is no doubt that it arose in the course of it, as he was taking the report to the office in the ordinary course of his duty." ^ It would not have been thought necessary to observe, if the question had not actually been raised, that it is in the course of a carter's employment to stop his horse if it bolts.^ But an emergency is not required in order to extend the Wrong words of this section to an act not strictly within the contract ™^ of service. A slight deviation from the proper way of executing the work does not put an accident in the category of an occur- rence not connected with the employment. A miner, who had negli- gently failed to inform himself of a rule* requiring thirty minutes' absence from a place where a shot had been lighted but had not exploded, and who returned within about six minutes to examine the shot-hole, was held to have been in the course of his employ- ment. As he acted according to the best of his judgment in the matter, it appeared that the explosion which occurred and ^ Durham v. Brown Bros., 1898, IF. ' Caledonian Railway v. Devine, 1899, 279, per Lord Kinnear, 286. 7 S. L. T. No. 1^8. ^ Jiees V. Thomas, (1899) 1 Q. B. 1015, ^ A special rule under the Coal Mines 1017. Regulation Act, 1887. 1 6 WORKMEN'S COMPENSATION ACT, 1897 Sec. 1 (1). injured him was one arising out of the employment he was exercising, not perhaps in the right way, but according to his own understanding and belief as to the nature of his duties.^ Opinions were reserved as to what the judgment would be in a case where a rule had been intentionally broken ; but it appears from another case that non-observance of an order intended for the workman's safety, may not sever the required connection between the accident and the employment. In that case the deceased workman had been in charge of an engine in a shed adjacent to a building in course of erection, the engine being used in connection with a mortar-pan outside the shed. There was safe ingress and egress by a full-sized door remote from the shaft, which extended to the mortar-pan, and there was a small door for ventilation purposes, which could be reached only by crawling under the shaft. The deceased had been forbidden to go out by this door ; but the judgment of the Court in favour of his representatives assumed that he had met his death when attempting to go out by this forbidden exit.^ Not in course In Contrast to the cases where a workman has done negli- ment. gently or improperly something which it was his regular duty, or his duty in the circumstances, to do, are those in which an act is not done for the furtherance of the employer's work, or is one clearly outwith the scope of the service for which the workman has been employed. But in order to say that at any given moment a man is not in the course of his employment, it must appear that he has for the time being ceased his work to do something else.^ This was held to be the case where a ticket- collector, after having checked the tickets on a departing train, jumped on the footboard to exchange some remarks with a female passenger, not for any object of his employers, but for his own pleasure.* And though an act is ostensibly undertaken in the interests of the employer, it may be held not to be in the course of the employment if it belongs to a part of the work which the workman has no business to meddle with. A boy engaged to make clay balls and hand them to a woman to put into a machine driven by steam, and who did not require to clean the machinery, and was forbidden to touch it (a special servant being 1 M'Niml V. Speirs, GiU, & Co., 1899, = Per Lord President in Durham v. 1 F. 604. Brown Bros., 1898, 1 F. 279, 284. ^ McNicholas V.Dawson, (\?,9^)\(i.'&. * Smith v. Lancashire and Yorkshire 773, 777. Eailwaij, (1899) 1 Q. B. 141. OF THE ORIGIN OF THE INJURY 17 provided for that purpose), attempted to clean the machine, and Sec. 1 (1). got hurt. This meddling was said to be entirely out of the course of the boy's employment, and compensation was refused.^ Further illustration of acts not arising in course of the employ- ment may be obtained from cases at common law, in which a master has escaped vicarious liability for his servant's fault on the ground that the latter was at the time engaged in some business or pastime of his own.^ " That is just the distinction which has been taken in a series of cases as to the liability of an employer for accident caused by his own servant ; and the meaning of the words used by the statute must be the same, whether the question involves the liability of the employer to a third person, or his hability under the statute to his own workman." ^ " In the course of the employment " also involves that the Hour and ■ 1 ■, 1 1 T • ii j_- J place of work, workman was occupied at the place and during the time covered by his contract of service. To an accident occurring either before the employment has commenced or after it has terminated, the Act does not apply. An example has occurred of compensa- tion being refused because employment had not commenced. A man was employed by a firm of contractors who were ballasting a siding for a railway company. Access to the siding was obtained with the permission of the railway company along the line, and one foggy morning, while on his way to work, the workman was run over by a train and killed at a spot about one himdred and fifty yards short of the siding to which he was going, and about seven minutes before the hour for commencing work. It was argued by the claimants that the deceased was protected tundo, morando, redeundo,*" and that the case was like that of a man employed in a quarry and killed while going to a particular place in it, or in a factory and killed while proceeding to an upper floor to work. " But," said A. L. Smith, L.J., " those cases are very different. In the case of a quarry or a factory the employer has the control over the whole of the premises ; here the appellants bad no control over the railway premises except that part where the work under their contract was being actually performed, for the mere licence to use the premises to 1 Lmie V. Pearson, (1899) 1 Q. B. 261. * See Brydon v. Stewart, 1855, 2 2 See Glegg on Eeparation, p. 442. Macq. 30 ; Tunney T. Ifidland Railway, 3 Per Lord Kinnear in M'Nicol v. 1866, L. R. 1 C. P. 291. Speirs & Cfibb, 1899, 1 F. 604, 609. 1 8 WORKMEN'S COMPENSATION ACT, 1897 Sec. 1 (1). get to the locality of the work gave the contractors no right of control over the portion along which they passed, or over the trains running thereon. The present case seems to nae like the case of a man who meets with an accident while passing along a highway or any other way in order to get to his work. I do not think that it was part of the contract of employment that the employment should extend till the deceased got to the place where his work was, or rather should include the time taken in getting to that place, nor can I hold that he had in contempla- tion of law begun his work when he had not got to the place where his work lay and the time for commencing work had not arrived. It is true that the accident happened only seven minutes before his work was to commence ; but if the shortness of the time is an element for our consideration, where is the hne to be drawn ? There can be only one line which can be safely drawn, one test which can be safely applied, and that is unless the injury arises out of and in the course of the workman's employment, and happens in the locahty where he is employed, he does not come within the terms of this Act." ^ Examples of termination of employment showing circumstances in which the Act would not apply, are to be found in common law cases. For instance, the servant of a railway company, dismissed from duty for the day, and travelling home as a passenger in one of the company's trains, is not then in the service of the company ; ^ nor miners who have stopped work and gone down into the mine to hold a meeting and arrange about coming out on strike.^ But an injury received while engaged on the employer's work will not be held to be outwith the course of the employ- ment, because the accident may have occurred before or after the regular working hours, if the workman is at the time engaged in his master's business.* Even after his active duty has ceased, a workman may be considered - as still in the employment of his master. An engine-driver, who had handed over his engine to another and was proceeding along the line to an office to report himself and sign off duty, in consideration of which he was entitled to overtime wages, was held to be in the course of his 1 Holmss V. Mackay & Davis, (1899) ^ Srowidie v. Tennant, 1854, 16 D. 2 Q. B. 319, 325. Komer, L.J., dis- 998, 1001. sented. « Sweeney v. M'GUvray, 1886, 14 R. ^ liohl V. MrtropoHtan Railway, 1890, 105. 7 T. L. R. 2. OF THE ORIGIN OF THE INJURY 19 work.^ And it appears from the opinions of the judges, Sec. 1(2) (c). although the point was not decided, that the fact of the accident having happened while wages were actually running was not essential, but that it was sufficient that the engine-driver was on the company's works for the purpose of reaching a particular point when it was his" duty to be.^ The Court was not prepared to adopt a construction of the statute which would exclude a miner who might have to walk through miles of underground passages before he reached the working face,^ and a factory hand who might have to proceed through different parts of the factory.* The onus of proving that an accident arose out of and in Onus, course of the employment is on the claimant.^ If it is proved that the injury to a workman is attributable to Serious and the serious and wilfid misconduct of that wo7'hnan, any com- conduct. pensation claimed in respect of that injury shall be disallowed. ^'^' '"'" The defence afforded by- this provision is slight, as may be seen from the following considerations, (a) The onus of proof is on the employer, (b) The cause must be shown to be " misconduct," which is a thing of a different kind from inadvert- ence or negligence, (c) The misconduct must be " serious and wilfid." The words of the clause point to moral delinquency. Being intoxicated while at work, or lighting a pipe in a fiery mine, would instruct the defence, but mere breach of a regulation, either statutory or devised by the employer, would not be sufficient. {d) Only the injured person, or those claiming through him, are barred from recovering, not other victims of the accident. It is not, therefore, surprising to find that cases supply examples only of the defence having failed. In the leading Scotch case, a miner who had negligently failed to inform himself of the existence of a rule of the mine requiring him to abstain from returning to an unexploded shot until thirty minutes had elapsed since lighting it, returned to inspect the shot-hole about six minutes thereafter, and was killed by the explosion of the shot. It was pleaded for the employers that the deceased had been guilty of serious and wilful misconduct, because he 1 Todd V. Oaledonian Railway, 1899, * Per Lord Kinnear, p. 787. 36 S. L. R. 784. = IIcMcholas v. Dawson, (1899) 1 Q. B. 2 Per Lord President, p. 785. 773, per Collins, L.J., 778. » Per Lord M'Laren, p. 786. 20 WORKMEN'S COMPENSATION ACT, 1897 Sec.l(2)(c). either knew the rule and disobeyed it or had failed to inform himself of it. The Court, however, sustained an award in favour of his dependants, although it assumed that the deceased did not know the rule, and had been negligent in not informing himself of it. " Negligence," said Lord Kinnear, " would not amount to wilful misconduct, because negligence implies merely a man's failure to advert to something which it is his duty to do, or which a reasonably prudent man in his circumstances would have done ; whereas, what the statute requires is a wilful violation of some known rule." ^ And this requisite is not necessarily satisfied by a violation which is intentional. If it is not ultroneous, but made in pursuance of the servant's work, it is not serious and wilful. Where miners, in order to proceed with the laying of tramway rails in a pit, removed certain timbers in the knowledge that there was a rule of the mine forbidding this, they were found entitled to compensation for injury caused by a fall of the roof in consequence of the withdrawal of support.^ In both of these cases the rule was one made under the Coal Mines Eegulation Act of 1887, for the breach of which a penalty might be imposed, so that is now well established, that every breach of a statutory rule will not instruct this defence. Negligence. As it has been held that merely doing a thing negligently does not bring an act outwith the course of the employment, it follows from that construction that negligence does not set up the defence contained in this subsection. For, as has been observed,^ the case to be considered in subsection (c) is rather an alternative to the principal enactment than an exception from it. Consequently, if an injury arise from accident in the course of the employment in the sense of sec. 1 (1), it cannot fall under the alternative here dealt with. A workman, therefore, causing an accident through negligence or rashness, but held to be in the course of his employment, as in the case of a railway employee not at once stepping off the four -foot way when he has been warned that a train is coming from behind, is not barred by the provisions of this subsection.* The decisions above considered, in which questions were ^M'Nicoly. Speirs&Oihl, 1899, IF. = Per Lord M'Laren in M'Niml v. 604, 609. S'pdrs, Gibh, S Co., 1899, 1 F. 604, 608. ^ Ruimholl V. Nunnery Colliery Oo., * Todd v. Caledonian Railway, 1899, 1899, 80 L. T. (N. S.) 42; 43 Sol. 36 S. L. B. 784. Journ. 242. OF THE ORIGIN OF THE INJURY raised as to a workman taking a wrong or dangerous method of Sec. 1(2) (c). doing work/ or using a wrong way in going from one place where he is employed to another, also supply examples of what fails to instruct this defence.^ As the injury complained of must be attributable to the mis- Attributable conduct, the causal connection between the two must be estab- lished. Where a lad under sixteen had obtained employment on the night-shift at a factory by a fraudulent representation that he was over sixteen, and was injured a few nights later, the defence that his accident was attributable to his misconduct in misrepresenting his age was abandoned, after an intimation from the Court that it was untenable.^ 1 Durham v. Brown Bros., 1898, IF. ^ Dollan v. Linwood Brickmaking Co., 279, 284, 286. 20 July 1899, First Div. As yet unre- 2 McNicholasv. Dawson, (1899) l.Q. B. ported. See also Beesy. Thomas, (1899) 773, 776. ' 1 Q. B. 1015. CHAPTER III OF UNDERTAKERS Undertakers. This Ad shall apply Only to employment hy the undertakers as hereinafter defined, on, in, or about a railway, factory, mine, quarry, and any luilding which exceeds thirty feet, etc. Two requisites are here set down. The employment must be — (1) by a certain person ; and (2) at a certain work, as these are afterwards defined. This division is made necessary by the fact that the Act does not proceed on the lines of including generally certain occupations, and the masters and servants engaged therein, but that it selects certain undertakings which it treats as '' employments," and certain persons (the undertakers), who may or may not be the masters, whom it treats as " em- ployers." There is a slight hiatus in the Act in this matter, inasmuch as the Act does not say that an undertaker shall be deemed to be an employer under sec. 1. The Act says in sec. 1 that if injury is caused to a workman, "his em- ployer " shall be liable, and sec. 7 enacts that the Act shall apply only to undertakers, who, by sec. 4, may not be the employers at all. Construing the different sections together, however, it appears that, while in certain cases undertakers may be liable as " employers " while not actually employers, employers Employers not are liable only when they are " undertakers." For instance, all undert'akeKj^. building Operations do not fall within the Act, but constructing, by means of scaffolding, a building which exceeds thirty feet in height does. If, therefore, a mason, who may afterwards be engaged at such a building, suffers an injury while preparing material in his master's yard, he has no claim against his master under the Act. On the other hand, a workman may be injured while occupied at the building, and may have a claim under the Act, but the claim may not be against his master. For suppose that a carpenter's workman is injured while erecting a scaffolding for the use of the masons, his claim will not be against the master carpenter, but OF UNDERTAKERS against the master mason, since the building is an undertaking of Sec.7(l)(2). the latter and not of the former, and it is the undertaker whom the Act holds liable.^ It is accordingly necessary to deal separately with employer or undertaker, and with employment. " Undertakers " in the case of a railway means the Railway EaUway. Company, . . . and "Railway Company" has the same meaning ^"^ as in the said Acts of 1873 and 1896. By sec. 3 of the Eegulation of Eailways Act, 1873, "The term ' railway company ' includes any person being the owner or lessee of or working any railway in the United Kingdom, con- structed or carried on under the powers of any Act of Parlia- ment." By sec. 28 of the Light Eailways Act, ISO 6, "The expression ' light railway company ' includes any person or body of persons, whether incorporated or not, who are authorised to construct, or are owners or lessees of, any light railway authorised by this Act, or who are working the same under any working agreement." According to the letter of this definition, it would appear that a workman would have a claim, where such various persons exist, against either the owner, lessee, or person working a railway. In some cases he might have this option under the provisions of sec. 4, but it is thought that in so far as this definition is concerned it does not give him the right to go against any other than the person with whom he has a contract of service. As the Act professes to put liability on the employer, the fair construc- tion seems to be that where there are several undertakers, one of whom is an employer and the others are not, the employer who is also an undertaker shall alone be liable. " Undertakers " ... in the case of a factory, quarry, or Occupier of laundry, means the occupier thereof within the meaning of the " °'^^' Factory and Workshop Acts, 1878 to 1895. This definition does not afford much assistance, inasmuch as occupier, with one exception, is not defined in the Acts referred to. The exception is supplied by sec. 23 (1) (v.) (b) of the Factory and Workshop Act of 1895, which says: "The person Dock, wharf, having the actual use or occupation of a dock, wharf, quay, or '^^^^' ^ It is assumed for the purpose of scafTold is not merely ancillary to the illustration that the erection of the mason work in the sense of sec. 4. 24 WORKMEN'S COMPENSATION ACT, 1897 Sec. 7 (2). warehouse, or of any premises within the same, or forming part thereof, and the person using any such machinery, shall be deemed to be the occupier of a factory." ^ The words " actual use or occupation " of a dock, wharf, and quay require special attention in connection with the loading and discharging of ships. Where the ship contracts with a stevedore for loading from or discharging on to the quay, the ship may be taken as being the occupier of the quay, through the stevedore.^ But where the ship confines itself, according to the theory of loading and discharging, to handling the goods only inside the ship's rail, then the quay will not be in the occupation of the ship. In that case it can only be in the occupation of the stevedore or of the merchant who employs him. The question will then be, whether the stevedore occupies the quay for himself as an independent contractor, or whether his occupation is as the agent or servant of the merchant. It is thought that the former is the correct view. The matter, however, is further complicated by the fact that a merchant sometimes contracts with a company of porters, when he may be regarded as the direct employer of the men. In that case he wiU probably be held to be the occupier. If, however, a merchant sends his workmen to deliver goods over the ship's side, especially if he uses any machinery or plant on the quay for that purpose, he wUl then be the occupier. In cases in which there is no statutory definition of occupier, he may be taken to be the person actually using the premises and carrying on the work.^ Mine. " Undertakers" . . . in the case of a mine means the owner thereof within the meaning of the Coal Mines Regulation Act, 1887, or the Metalliferous Mines Begulation Act, 1872, as the case may he. By sec. 75 of the first-mentioned, and sec. 41 of the second-mentioned Act, it is declared that " owner, when used in relation to any mine, means any person or body corporate who is the immediate proprietor or lessee or occupier of any 1 For full text of section, see infra, ' By sec. 24 of the last-cited Act, the p. 127. Compare provision in same owner of a tenement factory is sub- section as to occupier of machinery at stituted for the occupier for certain pur- building, poses, but he does not become an occupier ^ See Woodham v. Atlantic Transport in the sense of the Act. Company, (1899) 1 Q. B. 15. OF UNDERTAKERS 25 mine or of any part thereof, and does not include a person or Sec. 7 (2). body corporate who merely receives a royalty, rent, or fine from a mine, or is merely the proprietor of a mine subject to any lease, grant, or licence for the working thereof, or is merely the owner of the soil and not interested in the minerals of the mine (but any contractor for the working of any mine, or any part thereof, shall be subject to this Act, in like manner as if he were an owner, but so as not to exempt the owner from any liability)." The concluding part of the section, which occurs only in the first-mentioned Act, shows that a con- tractor is not included in the definition of owner under that Act, for it says that the liabilities of an owner shall attach to a contractor as if he were an owner. This section, there- fore, does not bring in as " undertakers " or employers under the present Act, contractors for the erection of machinery, driving of mine or sinking of shaft, etc.^ Occupier must, as a rule, be confined to proprietor or lessee ; but the word would include a bondholder in possession, although he could not be accurately described as either. " Undertakers " ... in the case of an engineering work Engineering means the person undertaking the construction, alteration, or repair. The engineer and not his employer is the undertaker. If a proprietor or local authority employ a contractor to construct sewers, it is the contractor upon whom liability is placed.^ " Undertakers "... in the case of a building means the Building. persons undertaking the construction, repair, or demolition. Under this definition a sub-contractor employed for a depart- ment of the work of construction', as for instance a joiner employed by a mason, or a master of a squad of labourers engaged to excavate foundations, is not included. A contractor for a department may, however, be the only person employed, as in the case of repairs, where a plumber or slater may be the person " undertaking " the repairs. Where several tradesmen are engaged independently at the same job, a difficulty arises. Take the ordinary case of the erection of a building, where the ' See sees. 4 and 6 of the present tractor is liable in indemnity to the Act as to the extent to which a con- employer, infra, p. 80 et seq. ^ M'Gregor v. Dansken, 1899, 1 F. 536. 26 WORKMEN'S COMPENSATION ACT, 1897 Sec. 7 (2). proprietor contracts with one person for the mason-work and with another for the joiner-work, and suppose that an accident happens to a joiner when laying joists. Who is the under- taker to whom the joiner is to look for compensation ? The proprietor apparently is not. The other parts of this section and the provisions of sec. 4 contemplate that the trades- man, the person actually engaged in the industry, and not the person for whose ultimate use or benefit a thing is done, is the undertaker.^ Mason satisfies the meaning of undertaker, but so does joiner in so far as the construction of the woodwork is concerned. There is nothing repugnant to common-sense in holding that there may be more than one undertaker at a building, and this reading receives support from the language of the section itself ; for while with respect to engineering, " person " was used in the singular, it is here used in the plural number, the language of the clauses being otherwise exactly similar. The injured joiner would therefore, it is thought, have to look to his employer for compensation. But if the joiners were injured while erecting scaffolding at the orders of the masons, and for their use, it is thought that the master mason would be liable. If, on the other hand, a mason uses a scaffold erected by the joiners for their own use, and it breaks down and injures him, his remedy under the Act is against the master mason, not the joiner.^ It is, of course, immaterial in considering who is liable to regard how the accident arose. That may be important in considering the question of relief, but it cannot assist in determining who is undertaker. Employer. " Employer " includes any hody of persons, corporate or unin- corporate, and the legal representative of a deceased employer. Since the proceedings for recovery of compensation by way of arbitration before the sheriff are subject to ordinary rules of Court procedure, it will be necessary to see that an employer is correctly described and called, in order to get a good decree.^ ^ M'Gregor v. Dansken, 1889, 1 F. of hardsbip at common law, which is 536. remedied by the Act. " Nicolson V. Macandrew, 1888, 15 R. ^ See Mackay's Manual of Court of 854, supplies a good example of a case Session Practice, p. 158. CHAPTER IV OP THE EMPLOYMENT This Act shall apply only to employment by the imdertahers . . . On, in, or on, in, or about a railway, factory, mine, quarry, or engineering ^^^-j ^^y work, etc. The words, " on, in, or about," in consequence of the definition of railway, factory, etc., impose a considerable limitation on the scope of the Act. These things are defined as places and not as trades or businesses. In order that an employment may be included under the Act, it is necessary that it should be carried on at a certain locality. If the work on which a workman is engaged takes him away from the locality mentioned, his employ- ment ceases to be under the Act. In a case where a workman, who was employed at dredging operations in a harbour, had left the dredger and proceeded in the hopper to sea, where he was drowned, it was held that his case did not come within the Act, because his " employment was not on, in, or about a locality named in the Act," viz. the harbour.^ The fact that he had been engaged on the dredger, when it was thought he would have been under the Act, and that he would have been so engaged on his return, was held to be immaterial, as " the locality of the accident must be within the purview of the section." In accord- ance with this view, the Act has been held not to apply where a carter in the employment of occupiers of a flour mill factory was killed a mile and a half away from it while delivering sacks of flour, by one falling on him,^ and where another carter in the employ- ment of saw millers was killed about two miles away while on his way to deliver goods, by the giving way of part of the road on a route which he had been instructed to take.^ The illustration ^ Chambers v. Whitehaven Barbour " LowCh v. Ihhotson, (1899) 1 Q. B. Comrs., (1899) 2 Q. B. 132. Whether 1003. dredging a harbour was engineering ^ Whitton v. Bell, 1899, 36 S. L. R. work was not decided. 754. 27 28 WORKMEN'S COMPENSATION ACT, 1897 Sec. 7 (1). may be added of a railway company which does its own carting, whose carters will be employed within the meaning of the Act when on the company's premises, but not when collecting or distributing goods through the town. But employment does not require to be within the confines of the place named. "About" is an enlarging word, and as the Legislature has not restricted the Act to employment on or in a factory, the language of the section will be satisfied if the employment is in close proximity to it.^ This was held to be the case where a workman in the service of builders was arranging timber on a cart on the street near to the entrance to their factory premises.^ It was also observed that the question whether the employment is in close propinquity to the factory in any particular case, is a question of fact to be decided by the tribunal before which the claim comes.^ The places mentioned in this subsection are defined in the following subsection. Sec. 7 (2). In this Act " railway " means the railway of any railway com/pany to which the Regulation of Railways Act, 1873, applies, and includes a light railway made under the Light Railways Act, 1896. This limits the railways dealt with to those constructed under statutory authority. There is thus a wide distinction between the use of the word railway in this Act and in the Employers' Liability Act of 1880, where it is used in a popular sense.* Sec. 3 of the Act of 1873 is — "The term 'railway' includes every station, siding, wharf, or dock of or belonging to such railway, and used for the purposes of public traffic." This definition does not in terms exclude any part of the under- taking, and " railway '' of course includes also the permanent way.^ But the term does not include carriages, trucks, or vehicles adapted for running on the railway, as these are declared by the same section to be " traftic." The definition omits premises and places not used for the purposes of public traffic, so that ' See Chamhers v. Whitehaven Har- to on, in, or about a dock and quay, see hmir Gomrs., (1899) 2 Q. B. 132, 135. infra, p. 30 et seq. 2 Fouiell V. Brmon, (1899) 1 Q. B. •" See Glegg on Reparation, p. 419. 157. ^ See London and North- Western Bail- ^ Per A. L. Smith, L.J., p. 159. As way v. Llandudno Improvem,ent Comrs., (1897) 1 Q. B. 287. OF THE EMPLOYMENT 29 employment in, for instance, a railway workshop or stable will Sec. 7 (2). not fall under this clause, but such of these as are " factories " will of course fall under the Act in respect of the provision after mentioned. It is to be noticed that a canal (apart from its construction, Canals, alteration, or repair) ^ is omitted from the Act, and that this omission is maintained in connection with canals which form part of a railway system. Canal is defined in the Act of 1873 as well as railway, and the fact that one definition has been taken and the other left, seems sufficient to exclude from the Act employment by a railway company at a canal. Boats or ships are dealt with in the same way. Boat by Boats, the Act of 1873 is included under "traffic" in reference to a canal, and therefore not incorporated by reference into the pre- sent Act, but apparently excluded. That being so, employment on a ferry-boat or steamer run by a railway company on a river or inland loch, or on the sea, would also fall outwith the Act. Light railway is not defined under the Act of 1896, except by implication as a railway authorised by that Act.^ " Factory " has the same meaning as in the Factory and Factory. 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 applied hy the Factory and Workshop Act, 1895. . . . The definition of factory is contained in sec. 93 and the relative schedules of the Factory and Workshop Act of 1878.^ The purposes of that Act are, of course, different from those of the present, and the distinction which it draws between textile and non-textile factories is irrelevant to the questions under consideration, and is to be disregarded. For the present purpose a factory may, in brief, be said to be any premises where, for the purpose of gain,* a manufacturing process is carried on with the assistance of steam, water, or other mechanical power ; and in addition eighteen specified classes of works which are declared to be factories irrespective of the use of mechanical power. The words " other mechanical power " are understood to include gas, wmd, hot air,'^ompressed ^ See p. 38. * See Oaledonian Railway v. Patersmi, 2 See. 28, see supra, p. 23. 1898, 1 F. (J. 0.) 24. 3 See p. 119. 30 WORKMEN'S COMPENSATION ACT, 1897 Sec. 7 (2). air, and electricity. They do not apply to a fly-wheel turned by manual labour or horse-power.^ Manufacturing premises in which mechanical power is not used are described in the Factory Acts as " workshops," and therefore do not fall under the pre- sent Act. This is subject to one exception, however, inasmuch as a " white lead factory " may include a workshop.^ A factory may not include all the places situated within its precincts. A place so situated, and used for a purpose other than the manufacturing process carried on in the factory,^ and a room solely used for the purpose of sleeping therein, are not to be deemed to form part of the factory.* Dock, wharf, '' Every dock, wharf, quay, and warehouse, and so far as relates iiouse, maciiiu- to the process of loading or unloading therefrom or thereto, all ery, plant. machinery and plant used in that process," are to be held as if included under "factory" for the purposes of sec. 23 (1) (v.) {a) of the Act of 1895, which extends certain provisions of the Fac- tory Acts to them.^ As the places here mentioned are not defined by the Act of 1895, there is primd facie nothing in this refer- ence to assist in construing the names used. The provisions of the Factory Acts are applicable to every place which is a " dock, quay, wharf, or warehouse," and the character of the place must be ascertained before it can be said to be a " dock," etc., importing the application of the said Acts. But the Courts have been guided in deciding whether a place can come under the Factory Acts by considering whether the place is suitable for the application of the provisions mentioned.^ In this way, therefore, the reference to some extent defines the requisites for constituting such places " factories." The words " to which any provision, etc., is applied," apply to and limit the whole budget of the words preceding them, and do not apply merely to the words " machinery or plant." ''' Premises and machinery are mentioned separately, and it ' See Redgrave on the Factory Acts, ^ Sec. 93 of Factory Act of 1878. 7th ed., p. 130. * Sec. 31 of Factory Act of 1891. = Factory and Worl Son, (1899) wharf, quay, warehouse, machinery, or 1 Q. B. 773, 780. plant to which any provision of the ^ McNkliolas, supra. ^ P. 43. OF THE EMPLOYMENT 37 No decision has as yet been given as to the effect of this Sec. 7 (3). clause, but in a case in which it was canvassed it received a ""^^ somewhat narrow interpretation from one of the judges. In that case the Lord Justice-Clerk said : " The subsection was intended to cover the removal of a vessel outside a yard while the work on it was still being done from the yard, as in the case of a vessel being launched and work done on her while lying in the water near the yard." Where a ship, launched at Port-Glasgow, was taken fifteen miles up the river to the Cess- nock Dock at Glasgow to have her engines put in by a sub- contractor, and an engineer in his employment was injured, and claimed against the shipbuilders, it was said, by the same judge, that the dock was not near the shipbuilding yard in the sense of this subsection.^ As the arbitrator had found as a matter of fact that the dock was not near, and as the case was otherwise decided in favour of the workmen, there was no decision given on this point, and in these circumstances it is submitted that this dictum has not authority to exclude a different construction. In particular, exception may be taken to the view that the subsection is to apply only in cases where the work is being done from the yard. As has been seen above, the principle of the Act is to define " employment " with reference to a locality, and if the locality is such as to bring the employment within the Act, it seems to be irrelevant (for this purpose) to inquire whether the injured man is in the employment of a shipbuilder or of a sub-contractor. The sub-contractor's workman would undoubtedly be under the Act so long as employed in the yard, and it is difficult to see why, when the ship is moved out, the Act, by virtue of this subsection, should continue to cover the shipbuilder's servant, but not the sub-contractor's. " Factory "... includes . . . every laundry worked hy steam, Laundry. water, or other mechanical power. ^' ^ '' Under the Factory Acts, only such laundries are factories as are carried on by way of trade or for the purpose of gain. Here, however, there is no such restriction, and a domestic laundry will be included if it is worked by mechanical power.^ " Mine " means a mine to which the Goal Mines Begulatiun Mines. 1 Jackson v. Rodger, 1899, 36 S. L. E. ^ As to meaning of "other mechanical 851. power," .see p. 29. 38 WORKMEN'S COMPENSATION ACT, 1897 Coal mine. Sec. 7 (2). Act, 1887, or the Metalliferous Mines Regulation Act, 1872, applies. The application of these Acts involves two considerations — one, the mineral ; the other, the mine. Sec. 3 of the first- mentioned Act reads : " This Act shall apply to mines of coal, mines of stratified ironstone, mines of shale, and mines of fireclay. . . } Sec. 75 of the same Act proceeds : " ' Mine ' includes every shaft in the course of being sunk, and every level and inclined plane in the course of being driven, and all the shafts, levels, planes, works, tramways, and sidings, both below ground and above ground, in and adjacent to and belonging to the mine." " Mine " applies only to underground workings, those carried on by removing the covering strata being quarries. By sec. 3 of the Metalliferous Mines Act, it is enacted : " This Act shall apply to every mine, of whatever description, other than a mine to which the Coal Mines Kegulation Act, 1872, applies." That Act is in the same terms as those, above quoted, of the Act of 1887, which now takes its place. The section (41) in the Act of 1872, interpreting the term "mine," is practically the same as sec. 75 of the Act of 1887. Under this Act it is immaterial what the substance worked is. Working slate by means of underground levels was held to constitute the place a metalliferous mine and not a quarry.^ Metalliferous mine. Quarry. Engineering work. " Quarry" means a quarry under the Quarries Act, 1894. Sec. 1 thereof says : " This Act shall apply to every place (not being a mine) in which persons work in getting slate, stone, coprolites, or other minerals, and any part of which is more than twenty feet deep." A quarry may also come under " Factory," in which case depth is not required, but mechanical power is.^ It is doubtful if sand, gravel, or clay pits are included, as these are not ejusdem generis with the minerals mentioned. " Engineering ivorh " means any work of construction or altera- 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 hy steam, water, or other mechanical power is used. ' As to the minerals which fall under these words, see Chisholm's Manual of the Coal Mines Regulation Act, 1887, p. 14. 2 Sim V. Evans, 1875, 23 W. R. 730. 3 Act of 1878, sec. 93 (2) ; Schedule IV. 2 (25). OF THE EMPLOYMENT 39 "Eailroad" appears here instead of the word railway which Sec. 7 (2). was used in the subsection dealing with railway service. " Eail- „ ., ~T~ road," unlike " railway," is not confined to a work constructed under statutory authority. It will therefore apply to a tem- porary railroad laid down by a contractor for the purpose of the construction of works, and in fact to any way upon which trains pass by means of rails.^ It is probably immaterial what the motive power is, locomotive or stationary engine, or horse.^ Pre- sumably the meaning of the substitution of railroad for railway is, that only work at the way which carries rails is referred to, work at a station or other building being left to the operation of the latter part of this paragraph, and of subsec. 1 of this section. Construction and alteration are words which do not suggest Harbour, difficulties of meaning, but repair is more difficult to construe. It is intended apparently to denote something short of alteration, and something more than cleaning. The opinion has been indicated that dredging mud from the bottom of a harbour and keeping it in a fit state to receive vessels coming in, would be an engineering work within the meaning of this subsection.^ With this may be contrasted the meaning taken of repair in a decision under sec. 7 (1), dealing with a building, in which it was held that outside painting was not included.* It is to be observed that " alteration," the omission of which in connection with building has led to a somewhat anomalous exclusion,^ is here inserted. The. occurrence of the word "other" in introducing the class Mechanical of work dealt with in the second part of the paragraph, appears P°^^''- to suggest that mechanical power is a condition which attaches to all " engineering work." But this construction cannot be adopted, for if it were, the special mention of railroad, etc., would be unnecessary, since all these undertakings would fall under " work " in the latter part of the paragraph. The test of work being "engineering" is therefore (1) whether it is on a railroad, harbour, dock, canal, or sewer ; or (2) whether machinery driven by mechanical power is used. 1 Doughty v. FirbanTc, 1883, L. R. 10 ^ Chambers v. Whitehaven Sarbour Q. B. D. 358. Comrs., (1899) 2 Q. B. 132, 135. '^ Cox V. Great Western Hailwaij, 1SS2, * Wood v. Walsh & Sons, (1899) 1 L. R. 9 Q. B. D. 106. This and the pre- Q. B. 1009. ceding case are decisions upon "rail- ^ Hoddinott v. Newton, (1899) 1 Q. B. way" and "train" in the Employers' 1018. Liability Act, 1880. 40 WORKMEN'S COMPENSATION ACT, 1897 Sec. 7 (2). It is difficult to say what kind of work, or, in other words, "Otlierwork" '^^^^ ^^^ object of the construction, alteration, or repair is to be in the second case. The definition proceeds upon unusual and confusing lines, inasmuch as it says engineering work shall mean certain processes, and shall include certain objects. There is a double difficulty here, for in its earlier part the clause refers to a process, and in its latter to an object, while it " means " a certain thing and " includes " something " other." It may be said that the object intended in the second part is to be ejuscleni generis with those mentioned in the first, and it may be taken that rail- road, etc., are leading examples of the matter to be dealt with. The nature of the operation, however, is also to be considered, for similarity is to be looked for as much in that as in the thing operated upon. Examples. The erection by mechanical power of iron bridges, not in connection with a railroad, etc., seems to fall under " other " engineering work. A building in subsec. (1) of this section seems to refer to the work of builders as commonly understood, in distinction to that of engineers. Other examples are, always assuming mechanical power, constructing an aqueduct or reser- voir, boring a well, dredging a channel leading to a harbour, raising a sunken wreck. There_would jrobably b e also included road-making which involvefthe blasting of ro ck, as it is c on- sidered an explosive may be called-mechahical power. But an engineering work is to be distinguished from work merely ancillary thereto. Take the case of the repair of a road with the assistance of a steam roller, and by way of contrast the use of a traction-engine to bring materials to the work. The latter would not be an employment within the Act, since the steam power would not be used for repairs but for carriage.^ Similarly the taking out to sea by means of a tug a hopper containing mud obtained by dredging a harbour, is not included. This process has no more relation to the engineering work of dredging the harbour than taking away the stuff in a cart would have.^ Building over Employment . . . on, in, or about any huilding which exceeds high. thirty feet in height, and is either being constructed or repaired by means of a scaffolding, or being demolished. ^ See also Rae v. Fraser, 1899, 36 ^ Chambers v. Whitehaven Harbour S. L. E. 782. Coinrs., supra. OF THE EMPLOYMENT 41 The building must at the time be over thirty feet in Sec. 7 (2). height. If, although intended to be higher, no part of it has reached that height in the course of construction,^ or if, having been higher, every part has been reduced below that height in the course of demolition, the Act will not apply. Further, the employment must be on, in, or about the building. A man, while engaged in his master's yard preparing material for the building, or while conveying the material to the building, will not be engaged at the defined employment.^ In the case of construction or repair, scaffolding also is Scaffoidmg. essential. For construction scaffolding will of course always be used, but for repairs it may not. Thus a workman repairing a building at the ground level, or at a higher level and working from a ladder, as, for instance, a plumber mending a pipe, or a slater a roof, would not come under the Act. The addition of a board to a ladder tied to a rung at one end and resting at the other on a window-sill, does not convert the arrangement into scaffolding.^ But an arrangement of planks fixed to inside pillars in a building, and strengthened by trestles below, having been held by the arbitrator to be scaffolding, his finding was sustained.* It is immaterial whether scaffolding is within or without the building.^ No indication is given by the Act, and -no assistance is Heigiit. obtairiable from common law, as to the level from which height is to be measured. The street level, the basement, or, in the case of a building in course of construction, the foundations, are all possible termini. Probably the height above the surface of the ground adjacent to the outside wall will be taken as the point from which the measurement begins, but the matter is in doubt, and will have to be brought up on appeal, when, being arbitrarily settled, a rule will be established.^ The height, however, to which the measurement is to be taken has been fixed as the apex of the roof, and not (when that point is lower) to the top of the wall.'^ The same case also decided that the height of the building, and not of the scaffolding, settles the question of the application ' Billings v. EoUoway, (1899) 1 Q. B. " Soddinott v. Newton, (1899) 1 Q. B. 70. 1018, 1021. " See Chambers v. Whitehaven Har- ^ Idem, hour Comrs., (1899) 2 Q. B. 132. ^ In the same case this question was = Wood V. Walsh is Sons, (1899) 1 reserved. Q. B. 1009. ' Idem. 42 WORKMEN'S COMPENSATION ACT, 1897 Sec. 7 (2). of the statute. Nor does the place at which the ■workman stands require to be thirty feet high.^ It has been recognised that the risk in connection with repair or construction of a building thirty feet in height is not confined to falling from a height, but extends to being fallen upon by things from above, and no doubt a workman standing on the ground would be included as well as one on the scaffolding. The cause of the accident, provided it arises out of the employment, is of course immaterial, and may have nothing whatever to do with the scaffolding. Repair. It does not follow, however, that every tradesman brought into a building over thirty feet in height, and using scaffolding in his work, is in an employment under the Act. A painter mounted on a scaffolding to paint or whitewash a roof,^ could hardly be said to be engaged in repairing the buildiag, nor a plumber putting in new gas-pipes. Construction and repair must be taken as referring to the structure and not the finishing or embellishing of a building. Where the work consisted in preparing the outside of a building for painting, by removing the old paint, making good defects in the woodwork with putty and in the stonework with plaster, it was said not to be repair, and clearly not construction.^ And to fall within the Act the work must come under the one category or the other. Work by way of alteration, although it involves structural changes, is not in- cluded, since this definition, unlike that dealing with engineering work, omits the word alteration. In consequence of this contrast between the two definitions, a somewhat severe construction has been adopted, and, as the following case shows, operations which it might have iDcen expected would have been included, have been excluded. A building six months after its completion, and after use as a stable, appeared deficient in rigidity, and a firm of ironmasters were employed to strengthen it by introducing iron stays, which were fastened to the girders and upright iron columns supporting the building. It was held that this was not construction, for the building had already been constructed and in use, and not repair, for the building was not out of repair. What was being done was an addition to that which it had originally been contemplated would be wanted, which might be ^ Hoddinott v. Newton, supra. 1899, 1 F. 536, a contract to do slater ^ Idem, per Collins, L. J., p. 1024. work on the roof of a house was spoken ^ Wood T. Walsh & Sons, (1899) 1 of as a contract to repair, but the point Q. B. 1009. In M'Gregor v. Danskeu, was not decided. OF THE EMPLOYMENT 43 alteration, but did not fall under either of the operations Sec. 7 (2) ; mentioned.^ ^ (^)- In the case of demolition of a building, the section does not Demolition, require for its application the use of scaffolding. Employment . . . on, in, or about any iuilding . . . on Mechanical which machinery driven hy deam, water, or other mechanical P°^^^''- 'power is being used for the purpose of the construction, repair, or demolition thereof. Height and scaffolding are both immaterial in this case.^ The essentials are a " building " and mechanical power used for the purposes mentioned. There is a difference in the wording of this clause and the analogous section in the Factory Acts, which refers to premises on which machinery is temporarily used for the purpose of the construction of a building or any structural work in connection with a building.^ In consequence of the construction which the definition of " Factory " has received, by which machinery in the premises mentioned is included by reference in this Act, the ground covered by the present clause is already pretty fully occupied. This clause, however, which deals with a building on which there is machinery, may be regarded as the leading provision, and the Factory Act clause may be regarded as extending this provision to premises con- taining machinery, which do not require to be part of the building, but may be adjacent to it. The purposes for which the machinery is used seem in both cases the same, with the important exception that alteration is not mentioned here, and therefore excluded,* while it may fall within the expression " structural work." In the case, therefore, of a workman injured on a building during structural alterations, he will have no claim under this subsection, but will reqrdre to proceed under sub- section (2) (" Factory "), and plead that the machinery was a factory in the sense of the Factory Act of 1895.^ Employment in the naval or mihtary service of the Crown is Naval and specially excepted from the apphcation of the Act, but otherwise Serviced the Crown is dealt with as a private employer.^ 1 Eoddinott v. Newton, (1899) 1 Q. B. = ^c^ ^f jggg^ gg^. 23 (1) (v.) (6). See 1018. su^ira, p. 36 ; App. p. 119. 2 Mcllor V. TomUnson, (1899) 1 Q. B. * Supra, p. 42. 374 ; Murnin v. Calderwood, 1899, 1 ^ See p. 36. F. 862 ; 36 S. L. R. 648. " Sec, 8 (1). CHAPTEE V LIST OF EMPLOYMENTS TO WHICH THE ACT APPLIES Since the general provisions of the Act relating to Employment are capable of definite application, in so far as employments have known names and conditions of working, it has been thought desirable to set forth by name those included. Inclu- sion results either from the direct application of sec. 7 of the present Act, or in consequence of a reference to the Factory and other Acts. In the following list the reason for the inclu- sion of each employment under the present Act is appended thereto. The references, unless otherwise mentioned, are to ■sections of the Factory and Workshop Act, 1878. In some cases it may be that an employment falls to be included under more than one subsection of sec. 93 of that Act, but as the fact of inclusion, however operated, exhausts the present question, double references are not given. Express mention of mechanical power is also omitted in referring to that Act. Some employments are factories, and consequently under the present Act, by reason of being carried on by the aid of mechanical power, and some are factories irrespective of the use of mechanical power. As the names of the employments do not show when mechanical power is employed, it is assumed to be present when no reference to it is expressed. When an employ- ment is a factory irrespective of mechanical power, that fact will be mentioned. It has also to be pointed out that, in addi- tion to employments which in their whole course fall within the Act, workmen in other employments may from time to time be under the Act through being engaged at a dock, wharf, quay, or warehouse.^ It would be difficult, if not impossible, to enumerate all the employments in which this occasional inclu- sion would occur, and it is therefore to be kept in view that ' Vide supra, p. 30 et seq. 44 EMPLOYMENTS TO WHICH THE ACT APPLIES 45 the list does not profess to exhaust such cases. There may also be omitted some recently arising or rare industries which ought to be included. In cases where it is thought omission occurs, reference must be made to the provisions of the Factory Acts. Sec. 7. Aerated Water Manufacturers, 93 (3) (a). Agricultural Implement Manufac- turers, 93 (3) (a). Alkali "Works, 93 (3) (a). Arms Factories, 93 (1); Schedule IV., Part I. (13). Arsenic Works, 93 (3) (a). Artificial Flower-Making, 93 (3) ia). Asplialte Works, 93 (3) (a). Bacon Curers, 93 (3) (a). Bakers, 93 (2) ; Schedule IV., Part II. (22). Bargemen, Factory Act of 1895, sec. 23 (1) (v.) (a)} when em- ployed about loading machinery used on quay. Basketmakers, 93 (3) {a). Bedding Manufacturers, 93. Bedstead Manufacturers, Metal, 93 (1) ; Schedule IV., Part I. (13) ; if Foundry, (12) of same Part of Schedule ; ISTon-Metal, 93 (3) (a). Beetling, Yarn or Cloth, 93 (1) ; Schedule IV., Part I. (2), irre- spective of mechanical power. Benzine Works, 93 (3) (a). Biscuit-Makers, see Bakers. Blacking Manufacturers, (93) (3) (a). Blacklead Manufacturers, 93 (3) (a). Blacksmiths, 93 (1) ; Schedule IV., Part I. (13). Blast Furnaces, 93 (1) ; Schedule IV., Part I. (9). Bleachers, 93 (1) ; Schedule IV., Part I. (2), irrespective of mechanical power. Blockmakers, 93 (1) ; Schedule IV., Part I. (13), and see Ship- smiths. Boatbuilders, 93 (2); Schedule IV., Part II. (24). Bobbin and Shuttle Manufacturers, 93 (3) (a). Boilermakers, 93 (1) ; Schedule IV., Part I. (13). Bone Works, 93 (3) (a). Bookbinding, 93 (1); Schedule IV., Part I. (18), irrespective of mechanical power. Boot and Shoe Makers, 93 (3) (a). Borax Eefiners, 93 (3) (a). Bottlers of Beer, 93 (3) {b) or (c).^ Boxmakers, 93 (3) (a). Brass Finishing, 93 (3). Brass Foundry, 93 (1); Schedule IV., Part I. (12), irrespective of mechanical power.^ ' Supra, p. 33. ^ Packing or making up in quantities or parcels for sale does not. come under the Factory Acts, but it is considered that the bottling of beer, which changes the nature of the article, either "alters," "finishes," or "adapts it for sale," and falls within the Acts. The bottling of whisky, however, which effects no change on the nature of the liquor, is merely packing, and is not included. ^ When process subsidiary, more than five persons must be employed. 46 WORKMEN'S COMPENSATION ACT, 1897 Sec. 7. Breweries, 93 (3) (a). Brickmakers, 93 (3) (a). Brushmakers, 93. Buckle Manufacturers, 93 (3) {a). Builders, Workmen's Compensa- tion Act, sec. 7.1 Butchers, 93 (3) (c), in respect of meat-chopping. Butter-Making, 93 (3) (a). Button Manufacturers, 93 (3) (a). Cab Proprietors, 93 (3) (c), in respect of chopping and bruising hay and corn for sale, see Farmer. Cabinetmakers, 93 (3) (a). Calenderers, 93 (1) ; Schedule IV., Part I. (2), irrespective of mechanical power. Calico Printers, 93 (1) ; Schedule IV., Part I. (1), irrespective of mechanical power. Candlemakers, 93 (3) (a). Cardboard Makers (not being printers), 93 (3) (a). Carinen, Factory and Workshop Act, 1895, sec. 23 (1) (v.) (a), in respect of employment at dock, wharf, quay, and warehouse.^ Carpenters, 93 (3) (a). Carpet Manufacturers, 93. Carriers, see Carmen. Cartridge Works, 93 (1) ; Schedule IV., Part I. (6), irrespective of mechanical power. Carvers, 93 (3) (a). Cattlemen, employed at dock. Fac- tory and Workshop Act, 1895, sec. 23 (1) (v.) (a) 3. Celluloid Manufacturers, 93 (3) (a). Cement Works, 93 (3) (a). Chain Manufacturers, 93 (3) (a). Chairmakers, 93 (3) (a). Chalk Quarries, over twenty feet deep, Quarries Act, 1894, sec. 1. Chandelier Manufacturers, 93 (3) (a), and see Foundry. Cheese-Making, 93 (3) (a). Chemical Works, 93 (3) (a), but see White Lead Factory. China, making or finishing, 93 (1) ; Schedule IV., Part I. (3), and Factory Act of 1891, sec. 38, irrespective of mechanical power. Cloth Mills, 93. Clothiers, Manufacturing, 93. Coachbuilders, 93 (3) (a). Coal Merchants, with wharf or warehouse. Factory and Work- shop Act,1895, sec. 23 (1) (v.) (a). Coal Mines, see Collieries. Cocoa Fibre Works, 93. Cocoa Manufacturers, 93 (3) (a). Coffee Eoaster, 93 (3) (c). Collieries, Coal Mines Regulation Act, 1887. Colour Works, 93 (3) (a). Combmakers, 93 (3) (a). Condensed Milk Making, 93 (3) (a). Confectioners, 93 (3) (a). Contractors, see Dock, Railway, Builder, Engineer, etc. Coopers, 93 (3) (a). Copper Foundry, 93 (1) j Schedule IV., Part I. (12), irrespective of mechanical power. ^ Copper Mill, 93 (1); Schedule IV., Part I. (10), power not essential, but always jtresent. Copper Smiths, 93 (3) (a). Copper Works, 93 (3) (a). Cork Works, 93 (3) (c). 1 See pp. 40, 43. = See pp. 29-35, ^ Must be more than five persons engaged when foundry subsidiary. EMPLOYMENTS TO WHICH THE ACT APPLIES 47 Com Merchants, in respect of cutting or bruising, 93 (3) (c) ; also in respect of employment at warehouse, etc., Factory and Workshop Act, 1895, sec. 23 (1) (y.) (a). Corn Mills, 93 (3) (&). Cotton, printing on, 93 (1) ; Schedule IV., Part I. (1), irre- spective of mechanical power. Cotton Merchants (1), in respect of warehouse, Factory Act, 1895, sec. 23 (1) (v.) (a) ; (2), in respect of making up, etc., 93 (1) ; Schedule IV., Part I. (2). Cotton Spinners and Weavers, 93. Creosoting Works, 93 (3) (a). Curing Fish and Ham, 93 (3) ip), see Fish. Curriers, 93 (3) (a). Cutlery Works, 93 (3) (a). Dairymen, in respect of separators and churns, 93 (3) (a). Dentists, 93 (3) ia). Distillers, 93 (3) (a). Dock Contractors, " engineering works," Workmen's Compensa- tion Act, sec. 7. Dock Service, Factory Act of 1895, sec. 23 (1) (v.) (a), see p. 29. Drain-pipe Works, 93 (3) (a).i Dredgers, " engineering work," Workmen's Compensation Act, sec. 7 (2), see p. 27. Dye Works, 93 (1) ; Schedule IV., Part I. (2), irrespective of mechanical power. Dye-Wood Grinders, 93 (3) (6). Earthenware Works, 93 (1) ; Schedule IV., Part I. (3). Elastic Manufacturers, 93 (1) ; Schedule IV., Part I. (13). Electric Supply, 93 (3) (a). Electro-plating, 93 (3) (a)? Emery Manufacturers, 93 (3) (a). Engineers, 93 (3) (a). Engineers, " engineering work,'' Workmen's Compensation Act, sec. 7 (2). Envelope Makers, 93 (3) (a). Farmer, 93 (3) (c), in respect of threshing or bruising corn, etc., for sale.^ Fat Melters, 93 (3) (6). Feather Manufacturers, 93. Fellmongers, 93 (3) (a). Felt Manufacturers, 93. Filemakers, 93 (3) (a). Fire Clay Mines, Coal Mines Act, 1887, sec. 3. Fishcuring,* 93 (3) (&). Sec. 7. "■ Not included in earthenware works under 93 (1) ; Schediile IV., Part I. (3). 2 The use of electricity in a chemical process is not using "mechanical power," and will not constitute such a place a factory. ' The subsection cited seems to deal with trades which have for their ultimate "purpose" either (a) making, (6) alter- ing, or (c) adapting for sale of an article. Tried by this test, bruising corn for feeding his own horses would not bring a farmer under the Act, and the same observation applies to cab proprietors, tramway and omnibus companies. The purposes of these trades cannot be as- cribed to either {a) or (6). It is a possible reading, however, to say that (a) and '{b) are not limited to the ultimate pur- pose, but are satisfied by an incidental purpose of making or altering, although the thing made or altered is not directly productive of gain. See p. 29, "Gain." ^ Gutting, salting, and packing imme- diately on arrival of iishing boats not included, sec. 100 of the Act of 1878. WORKMEN'S COMPENSATION ACT, 1897 Sec. 7. Flax Merchants, in respect of warehouse, Factory Act, 1895, sec. 23 (1) (v.) (a). Flax Scutch Mills, 93 (1) ; Sched- ule IV., Part I. (19), irrespective of mechanical power. Flax Spinners, 93. Flockmakers, 93. Floor-cloth Makers, 93. Flour Mills, 93 (3) (6). Foundry, 93 (1), Schedule IV., Part I. (12), irrespective of mechanical power. Framemakers, 93 (3) (a). Fuller's Earth Makers, 93 (3) (6). Furniture Depositories, " Ware- house,'' Factory Act, 1895, sec. 23 (1) (v.) (a). Furriers, 93 (3) (6). Fustian Cutting Works, 93 (l)j Schedule IV., Part I. (8), irre- spective of mechanical power. Galvanisers, 93 (3) (S). Gas Works, 93 (3) (a). Glass Works, 93 (1); Schedule IV., Part I. (15), irrespective of mechanical power. Glove-Making, 93 (3) (a). Glue Works, 93 (3) (a). Granite Quarry, Quarries Act, 1894, sec. 1, and see p. 38. Granite Works, 93 (3) (6). Graving Dock, 93 (2) ; Schedule IV., Part II. (24), and see also Engineers. Grocers, " Warehouse," Factory Act, 1895, sec. 23 (1) (v.) (a),i "mechanical power," 93 (3) (c). Gunmakers, 93 (3) (a). Gunpowder Works, 93 (3) (a), and see Cartridge. Gutta-percha Manufacturers, 93 (1) ; Schedule IV., Part I. (13). Hair Manufacturers, 93. Harness-Makers, 93 (3) (a). Hat Works, 93 (2) ; Schedule IV., Part II. (20). Hay Merchants, in respect of cutters, 93 (3) (&).2 Heald Manufacturers, 93. Hejnp Manufacturers, 93. Hinge Manufacturers, 93 (3) (a). Hollow-ware Manufacturers, 93 (3) (a). Hook and Eye Manufacturers, 93 (3) (a). Horticultural Builders, 93 (3) (a). Hosiery Manufacturers, 93. Ice Manufacturers, 93 (3) (a). India-ruhher Works, 93 (1); Schedule IV., Part I. (13). Ink Manufacturers, 93 (3) (as). Iron Foundry, 93 (1); Schedule IV., Part I. (12), irrespective of mechanical power. Iron Merchants, " Warehouse," Factory Act, 1895, sec. 23 (1) (v.) («). Iron Mills, 93 (1); Schedule IV., Part I. (11), mechanical power not required but always present. Iron-Smelting, 93 (1) ; Schedule IV., Part I. (9), irrespective of mechanical power. Ivory Works, 93 (3) (a). Japanners, 93 (3) (i). Jewellers, 93 (3) (a). Joiners, 93 (3) (a). Jute Spinners, 93. 1 See p. 35. "^ See Farmer. EMPLOYMENTS TO WHICH THE ACT APPLIES 49 Lace Manufacturers, 93. Lace Dressing and Finishing, 93 (1); Schedule IV., Part I. (2), irrespective of mechanical power. Lace "\^'■arehouse, 93 (2) ; Schedule IV., Part II. (23). Lacquerers, 93 (3) (6). Lamp Manufacturers, 93 (3) (a). Lapping, 93 (l)j Schedule IV., Part I. (2), irrespective of mechanical power. Laundries, Workmen's Compensa- tion Act, sec. 7 (2).i Lead Works, Smelting, 93 (1); Schedule IV., Part I. (9), irre- spective of mechanical power. Leather Goods Makers, 93 (3) (a). Leather Merchants, " Warehouse,'' Factory Act, 1895, sec. 23 (1) (V.) (a). Letterpress Printing Works, 93 (1); Schedule IV., Part L (17), irrespective of mechanical power. Lightermen, employed at machinery on quay. Factory Act, 1895, sec. 23 (1) (v.) (a), see p. 31. Lime Quarry, Quarries Act, 1894, sec. 1, and see p. 38. Lime Works, 93 (3) (6). Linen, Printing on, 93 (1) ; Sched- ule IV., Part I. (1), irrespective of mechanical power. Linen-Weaving, 93. Locksmith, 93 (3) (a). Lucifer Match Works, 93 (1) ; Schedule IV., Part I. (4), irre- spective of mechanical power. Machine Rulers, 93 (3) (6). Machinist, 93 (3) (a). Maltsters, 93 (3) (a). Mantle Manufacturers, 93 (3). Manure Works, 93 (3) (a). Masons, see "Building," Work- men's Compensation Act, sec. 7.2 Match Works, see Lucifer. Matting Manufacturers, 93. Metal Mines, Workmen's Com- pensation Act, sec. 7. Metal Spinners, 93 (1); Schedule IV., Part I. (13). Metal Works, 93 (1); Schedule IV., Part L (13). Millers, 93 (3) (a). Millstone Manufacturers, 93 (3) (.). Mineral Water Manufacturers, 93 (3) {a). Musical Instrument Makers, 93 (3) (a). Mustard Manufacturers, 93 (3) (6). Nailmakers, 93 (3) (a). Needlemakers, 93 (3) (a). Nut and Bolt Makers, 93 (3) (a). Oakum Manufacturers, 93. Oil Mills and Oil-Cake Makers, 93 (3) (a). Omnibus Companies, in respect of cutting and bruising hay and corn, 93 (3) (6).3 Organ Builders, 93 (3) (a). Packing Case Makers, 93 (3) (a). Paint Manufacturers, 93 (3) (a). Paper Mills, 93 (1) ; Schedule IV., Part I. (14), irrespective of mechanical power. Sec. 7. 1 See p. 37. 4 ' See pp. 36, 40-43. 3 See Farmer. 50 WORKMEN'S COMPENSATION ACT, 1897 Sec. 7. Paper-Staining Works, 93 (1); Schedule IV., Part I. (7), irre- spective of mechanical power. Patent Fuel Makers, 93 (3) (a). Percussion Cap Works, 93 (1) ; Schedule IV., Part I. (5), irre- spective of mechanical power. Photographic Material Makers, 93 (3) (a). Pianoforte Manufacturers, 93 (3) («)• Pipe Manufacturers, Iron, see Iron Foundry. Pipemakers, Earthenware or China, see Earthenware Works. Pit Banks, 93 (2) ; Schedule IV., Part II. (26). Plumbers, see Metal Works. Pork Pie Makers, 93 (3) (as). Potteries, 93 (1); Schedule IV., Part I. (3), and Factory Act of 1891, sec. 38, inserting " china " after earthenware in 1878 Act, irrespective of me- chanical power. Printing, on certain substances other than paper, 93 (1) ; Sched- ule IV., Part I. (1), irrespective of mechanical power. Printing, Letterpress, 93 (1) ; Schedule IV., Part I. (17), irre- spective of mechanical power. Provision Preserving, 93 (3) (a). Puddlers, see Iron-Smelting. Quarries, Quarries Act, 1894, sec. 1, and see p. 38. Quays, Employment on. Factory and Workshop Act, 1895, sec. 23 (1) (v.) {a). Eailroad-Making, Workmen's Com- pensation Act, sec. 7 (2).^ Eailways, Workmen's Compensa- tion Act, sec. 7.^ Railway Works, 93 (3) (a). Eeed-Making, 93 (4) (a). Eibbon-Making, 93. Eiggers, " Shipbuilding Yards," 93 (2) ; Schedule IV., Part II. (24). Eoad-Making, Workmen's Com- pensation Act, sec. 7 (2).^ EoUing Mills, see Iron Mills. Eope Works, 93 (2); Schedule IV., Part 11. (21). Eubber Stamp Makers, 93 (1) ; Schedule IV., Part I. (13). Sackmakers, 93. Sailmakers, 93. Salt Work, 93 (3) (c). Sandpaper Makers, 93 (3) (a). Sausage Manufacturers, 93 (3) (a). Sawmakers, 93 (3) (a). Saw Mills, 93 (3) (6). Scalemakers, 93 (3) (a). Screenmakers, 93 (3) (a). Seed-Crushing Mills, 93 (3) (&). Seed Merchants, in respect of separating and dressing, 93 (3) (c). Sewer Construction, Alteration or Eepair, Workmen's Compensa- tion Act, sec. 7 (2), see p. 38. Shale Mine, Coal Mines Eegulation Act, 1887, sec. 3. Shell Cutting or Polishing, 93 (3) (&). Shipbuilders and Eepairers, 93 (2) j Schedule IV., Part II. (24).* Shoddy Manufacturers, 93. 1 See p. 39. "" See p. 28. ' See p. 40. ^ See Workmen's Compensation Act, see. 7 (3), as to vessel in dock, river, or tidal water near the yard. Supra, p. 36. EMPLOYMENTS TO WHICH THE ACT APPLIES 51 Shot Manufacturers, 93 (3) (a); ■when under 93 (1), Schedule IV., Part I. (12), mechanical power unnecessary. Silk Spinners, 93. Sinkers, Coal Mines Act of 1887, and Metalliferous Mines Act of 1872. Size Manufacturers, 93 (3) (a). Slate Enamelling, 93 (3) (&). Slate Quarries, Quarries Act, 1894, sec. 1, and see p. 38. Slaters, " Building," Workmen's Compensation Act, sec. 7 (1). Soap Works, 93 (3) (a). Spelter Manufacturers, 93 (1) ; Schedule IV., Part I. (12), irre- spective of mechanical power. Spinners, Textile, 93. Spring and Axle Makers, 93 (1); Schedule IV., Part I. (13). Starch Manufacturers, 93 (3) (a). Stationers, Manufactiu:ing, 93 (3) (&) ; in respect of bookbinding, 93 (1)- Schedule IV., Part I. (18), irrespective of mechanical power. Staymakers, 93. Steel Pen Makers, 93 (3) (a). Steel Works, 93 (1); Schedule IV., Part I. (9), (11), or, if foundry, under (12), irrespective of mechanical power. Stevedores, see Dock Service. Stone Works, 93 (3) (J), see Quarry. Sugar Eefiners, 93 (3) (a). Surgical Instrument Makers, 93 (3) (a). Tailors, 93 (3) (a). Tank Manufacturers, 93 (3) (a). Tanneries, 93 (3) (a). Tar Distillers, 93 (3) (a). Telegraph Works, 93 (3) (a). Tiemakers, 93 (3) {a). Tilemakers, ornamental, 93 (1) ; Schedule IV., Part I. (3), irre- spective of mechanical power. Tilemakers, other than orna- mental, 93 (3) (a). Tinplate Works, 93 (1); Schedule IV., Part I. (11), irrespective of mechanical power. Tin Eefining Works, 93 (1) ; Schedule IV., Part I. (9), irre- spective of mechanical power. Tobacco Manufacturers, 93 (1) ; Schedule IV., Part I. (16), irre- pective of mechanical power. Tool Manufacturers, 93 (3) (a). Tow Works, 93. Tramway Company, in respect of cutting and bruising hay and corn for sale, 93 (3) (6).i Turners, 93 (3) (a). Typefounders, 93 (1) ; Schedule IV., Part I. (12), irrespective of mechanical power. Upholsterers, Manufacturing, 93 (3) (a). Varnish Manufacturers, 93 (3) (a). Vinegar Manufacturers, 93 (3) (a). Waggon Works, 93 (3) (a). Warehouse and Warehousemen, Factory Act of 1895, sec. 23 (1) (v.) (a), see p. 35. Washing and Wringing Machine Manufacturers, 93 (1) ; Schedule IV., Part I. (13). Watch and Clock Makers, 93 (3) Sec. 7. ' See Farmer, supra, p. 47. 52 WORKMEN'S COMPENSATION ACT, 1897 Sec. 7. Weavers, 93. Wire and Wire-Kope Makers, 93 Wharfingers, see Dock Service.i (1) ; Schedule IV., Part T. (13). Wheelwrights, 93 (3) (a). Wood Carvers, 93 (3) (a). White Lead Works, Factory Act, Wool Combers, 93. 1883, sec. 18, irrespective of Worsted Makers, 93. mechanical power. Whiting Manufacturers, 93 (3) Zinc Works, 93 (1) ; Schedule IV., {a). Part I. (12). 1 Supra, pp. 29, 30. CHAPTER VI OF PERSONS ENTITLED TO COMPENSATION The Act, though entitled the Workmen's Compensation Act, nowhere says expressly that compensation is payable to a work- man. The first section says that in a certain event an employer shall be liable in compensation in accordance with the First Schedule, and it is there set forth what the amount of com- pensation shall be in three sets of circumstances. From this it is deduced that the First Schedule confers the title to claim on, and regulates it among, the persons there mentioned.^ " Workman" includes every person who is engaged in are "Workman.' employrnent to which this Act applies, luhether hy 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. Workmen of all grades are included in this definition. All grades Manual labour, which limits the application of the Employers' ^"^ " ^ ■ Liability Act, is here dispensed with. Any limitation, also, which might be extracted from the word " workman " is unavail- able in construing the definition, since it proceeds, " every person who " and not " every workman." " Person " is thus substituted for " workman," and what follows contains nothing to limit the application of the word. A person engaged " otherwise " than in manual labour may be one engaged in any capacity. A factory overseer and a certified mine manager are included equally with a factory hand and a miner. A partner, however, although in receipt of a salary for his services, will not be ^ Fagan v. Murdoch, 1899, 36 S. L. R. any farther mention of "Conditions." 921. It may be noticed that; though the The heading, however, is part of the heading of this schedule is "Scale and Act. Lang v. Kerr, 1878, 3 App. Ca. Conditions of Compensation," a sub- 529 ; Nelson v. M'Phee, 1889, 17 R. heading follows of "Scale" without (J. C.) 1, 2. S3 54 WORKMEN'S COMPENSATION ACT, 1897 Sub-con- tractor. Sec. 7 (2). included. The section does not, indeed, expressly limit the workman's agreement to one of service, and the words " or other- wise" might cover an agreement of copartnery, but the other provisions of the Act seem inconsistent with such a construction. They imply that the contract is one of service, or of the nature of a contract of service, and that the relation of master and servant is constituted. Nor will a sub -contractor be included.^ Here again the words of the definition are wide enough to include such a one, as service is not expressly made a requisite of the agreement, but, as in the case of a partner, the other provisions of the Act exclude him.^ Compensation to a workman is to be calculated with reference to weekly earnings, which provision is inapplicable to the case of a sub-contractor. His emolument is measured, not by the sum received from his employer, but by his profit on the job, which may be much less. Assistance in determining whether a person is a workman or a sub-contractor may be obtained from decisions under the Employers' Liability Act. The same consideration as to estimating damages by reference to earniugs or wages will apply, and cases which satisfy the description of workman under the Employers' Liability Act may be taken as satisfying the definition here. The definition contained in that Act, incorporated by reference from the Employers and Workmen Act, 1875,^ is on this matter followed pretty closely in the present section. The difference is that here the words are " whether his agreement is one of service or apprenticeship or otherwise," and ia the earlier Act, " whether the contract be of service, or a contract personally to execute any work or labour." The Employers' Liability Act was held to apply to a case where a slater was employed by a builder to slate houses for him, and paid so much by the piece, the slater having his own tools, and the builder supplying slates, poles, and scaffolding.* Illustrations from Act of 1880. ' M'Gregm- v. Dansken, 1899, 1 F. 536. ^ The case where a sub-contractor is an undertaker scarcely requires to be mentioned. = 38 & 39 Vict. cap. 90, sec. 10. "In this Act the expression ' workman ' does not include a domestic or menial servant, but, save as aforesaid, means any person who, being a labourer, servant in hus- bandry, journeyman, artiiicer, handi- craftsman, miner, or otherwise engaged 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 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." * Stuart V. Evans, 1883, 49 L. T. (N. S.) 138. OF PERSONS ENTITLED TO COMPENSATION 55 The slater did the work unaided, but it was said that he would Sec.l(2)(a). not be outwith the Act although he had employed assistants. ' A bricklayer also, employed to execute repairs, and calling in the assistance of a hodman, and a potter's printer employing another to do part of his work, which if skilled enough he could do himself, are both workmen in the sense of that Act.^ The contract of service does not require to be for a regular period. Employment by the hour,^ or on the most incidental service, is sufficient.* Employment may be proved, and for the reason explained above, can be proved only by the receipt of wages, or the right thereto.* Th& employer shall not ie liable under this Act in respect of Disablemeut any injury which does not disable the workman for a period of at s°o. T°(^^«>.^' least two weeks from earniny fidl wages at the work at which he was employed. In other words, a workman has a title to claim who has been unable to earn full wages for two weeks. It is the inability to earn, and not the shortage in payment of wages, which is the test. An employer will not get rid of his liability by paying, or offering to pay, full wages to a workman who has been able to earn only part. " Disability does not depend on the liberality of the employer, it must be physical, and must depend upon the question whether the workman is capable of performing the work at which he was employed at the time of the accident as efficiently as he did before." Whether acceptance of full wages by a workman will be evidence of having earned the wages will always be a question of circumstances. The Court overturned the finding of an arbitrator, who had dismissed a case in respect of payment of two weeks' wages, because there was no evidence to show that they had been paid to the workman in fulfilment of his contracb and not as a gratuity. The workman was a foreman, part of whose work involved the use of his hands, and his injury consisted in the losing a thumb, which interfered with his work and caused absence during part of the day of the accident, and occasionally for an hour thereafter for dressing.^ 1 Grainger v. Aynsley, 1880, L. E. 6 ^ M'Gregm- v. Dansken, 1899, 1 F. Q. B. D. 182. 536, per Lord Trayner, 548. '^ Small Y. M'Cormick & Eioing, 1899, * As to meaning of "earnings," see 36 S. L. R. 700. wfra, p. 66. = Chandler Y. Smith, (1899) 2 Q. B. 506. S6 WORKMEN'S COMPENSATION ACT, 1897 Sec. 1(2) (a). Disablement for at least two weeks means that the workman has to continue incapax throughout. But it appears that week is here taken as a unit, and that the expression " period of two weeks " does not mean fourteen days, on each one of which there must be incapacity. Accordingly, disablement for part of a week, which results in earning less than full wages for that week, will mean incapacity for that week. This consideration may be of importance in cases of apparent recovery and subse- quent relapse, it being assumed that the " two weeks " mean those immediately following the date of the accident. In the majority of cases the " two weeks " will necessarily be the two after the accident, but the Act can be read differently, and a later two weeks may possibly be held to satisfy the condition. Deceased workman's re- presentatives. See. 7 (2). Any reference to a workman who has been injured shall, where the workman is dead, include a reference to Ms legal personal representative or to his dependants. The legal personal representative is the executor, either nominated in a testament, or appointed by the Commissary. He, of course, is only a hand acting for the dependants,^ a class which is thus limited by the following subsection: — Dependants. Sec. 7 (2) (I). " Dependants " means — (a) In England and Ireland^ . . . (b) in Scotland, such of the persons entitled according to the law of Scotland to sue the employer for damages or solatium in respect of the death of the loorkman, as were wholly or in part dependent upon the earnings of the workman at the time of his death. By this definition the application of the Act is made less extensive in Scotland than in England and Ireland. While in Scotland, as in England, parents and children, grandparents and grandchildren are included,^ in the latter, step-children and step- parents are also included by virtue of the definition in Lord Campbell's Act, but in Scotland are excluded by reason of not 1 See First Schedule I. (4). ^ "Such members of the workman's family specified in the Fatal Accidents Act, 1846 (Lord Campbell's Act), as were wholly, etc." Sec. 2 thereof specifies "wife, husband, parent, and child," and sec. 5 declares that "parent shall include father and mother, and grand- father and grandmother, and step-father and step-mother, and the word child shall include son and daughter, and grandson and granddaughter, and step- son and step-daughter." ^ Sanlin v. Melrose Jc Thomson, 1899, 36 S. L. E. 814. Some of the judges seem to make the decision turn on dependence, but the question was stated and argued as at common law. OF PERSONS ENTITLED TO COMPENSATION 57 having a title to sue for damages or solatium. That right depends Sec. 7(2) (b). upon nearness of relationship and mutual obligation to aliment, and step-children and step-parents not being under that obligation do not possess the right.^ For the same reason, collaterals,^ and bastards with their parents,^ are also excluded. Scotch law and English reach the same result in this respect, however, as neither collaterals nor bastards * are included in Lord Campbell's Act. The provision as to dependence introduces an important Claim for distinction between a title to claim under the Act, and a title noWtie'uudCT to sue at common law. By the law of Scotland the question of •*■''*■ dependence is immaterial on the matter of title, since, unlike the law of England, an action will lie for damages in respect of solatium for wounded feelings, although the pursuer has not lost but received pecuniary benefit by the death of the injured person. Under this Act, the loss of support is essential to the existence of a claim. The effect of introducing these words as to dependence is to avoid a difficulty which has occurred in England in cases under Lord Campbell's Act. That Act does not contain the limitation, but inasmuch as by the law of England a right to sue for solatium does not exist, and the Act says that the damages are to be proportionate to the injury,^ the Courts have ruled that the plaintiff must show that he has suffered pecuniary loss before an action will lie." This rule, however, has been found difficult of application. Eeasonable expectation of pecuniary benefit from the deceased has been considered sufficient to found a claim for pecuniary loss,^ and it has been said that legal liability alone is not the test,^ but the decisions are not quite uniform as to whether there must have been pecuniary advantage to the plaintiff in existence prior to or at the time of the death.^ These questions, however, will not arise here, as " reasonable Dependants. ' Macdonald v. Macdonald, 1846, 8 D. ^ Pym v. Great Northern Railway, 830. 1863, 4 B. and S. 396, 408. '' Eisten v. North British EaiUmij, ' Franklin v. South-Eastern Railicay 1870, 8 M. 980. ' Company, 1858, 3 H. and N. 211. ^ Clarke V. Carfiii Coal Oom2Jany, 1891, ^ Dalton v. Soibth-Eastern Railway, 18 R. (H. L.) 63 ; Clement v. Bell is_father's "Support, or for that of a child who was not earning more than his keep. There must be dependence on the deceased, to some extent at least, for the ordinary necessaries of life, having regard to the class and condition of life of the claimant. Partial dependence in this sense was held to be instructed where the deceased, a lad of fourteen, earned seventeen shillings a week, which he brought home to his father and mother, with whom he lived, and which, with his father's wages of thirty-four shillings per week, went into a common fund. The father allowed the deceased part of his wages as pocket-money, and the rest helped to maintain the family.^ The same result was arrived at in circumstances which were similar, except that the son was an adult, and handed over his wages to his mother in order that she might be able to stay at home instead of going out to work at a factory to swell the family earnings.^ But it does not follow that dependence can be instructed only by payments of money or supplies of clothing and keep. It may be that a girl, who earns wages not more than sufficient to keep herself, con- tributes to the support of her parents by household services, inasmuch as if she were removed another would have to be paid to do the work, and her parents to this extent would be the losers by her death.^ There will lie no claim as for one wholly dependent, if the dependant had other means of subsistence, as for instance a friendly society allowance or parochial relief. Parents. Apart from these specialties, the title to claim is the same as at common law. Thus, where both father and mother of the deceased workman are alive, the father alone has a claim,* and ' Himinons v. White, (1899) 1 Q. B. ^ Barrett v. North British Raihvay, 1005 ; 106 L. T. (0. S.)' 458, followed in 1899, 36 S. L. R. 874. Davis V. Main Colliery Co., 1899, 107 ^ Wolfe v. Great Northern Railway, L. T. (0. S.) 135. 1890, 26 L. E. Ir. 548. * Whitehead v. Blaik, 1893, 20 R. 1045. OF PERSONS ENTITLED TO COMPENSATION 59 a joint conclusion is incompetent.^ If, therefore, the parents Sec. 7 (2). reside apart, the deceased having lived with the mother and contributed to her support, there will be no claim at the instance of either, since the mother has no title to sue for solatium, and the father cannot instruct dependence as required by the Act.^ In England, however, both father and mother seem to have a title under Lord Campbell's Act.* The 071US of instructing total or partial dependence will be Onus. upon the claimant. Any reference to a worhnian shall include . . . other person Medical and ,7 ... , , funeral to whom compensation is payable. expenses. This means the person to whom the expenses of medical ^^''^ '' '^)* attendance and burial are due ; * in short, the doctor and under- taker. Where the parish has paid, or is liable for these expenses, it will be entitled to claim them. Although it may be said that the expenses are not due to the parish, still it could get an assignation of the claim, and proceed in the assignors' names. But these three classes of claims are alternative.^ If Claims the deceased leaves a dependant who was wholly depend- ent, he has the only claim. If there are none wholly dependent, then those partially dependent have the claim. If there are none of either class, then the undertaker and doctor come in. It is important in settling a claim to note in whom the title Settlement by , .,, . , , T 1 agreement. IS, as an employer will reqmre to see that he gets a discharge First Schedule from the right party, and attention may be called to the follow- ^ ' ^''''" ing points. I f the d eceased workman leaves, say a wife wholly dependent, and also children partially dependent, the wife alone has a title under the Actj and the children are entitled to nothing. But since the option is given in cases where there is a claim independently of the Act to raise an action at law, the children may prefer to raise an action at law, in which the amount of damages is not limited.*' A settlement with children in these circumstances will not, of course, get rid of any liability ^Barrett v. North British Railway, * First Schedule (1) (a) (iii.), (4). 1899, 36 S. L. R. 874. = First Schedule (1) (a). Fagan v. = See Bell v. Laing, 1896, i S. L. T., Murdoch, 1899, 36 S. L. R. 921. No. 252. ^ Sec. 1 (2) (6), infra, p. 73. " See sec. 5 of Act, and Bell, supra. 6o WORKMEN'S COMPENSATION ACT, 1897 First Schedule (1) (a). Several dependants. under the Act. A settlement with the wife, however, for her claim under the Act, will cut out the claim of the children at law. For there can be only one claim, and the wife, as representing the deceased under the Act, is entitled to make the election. The children cannot then insist in an action at law, although they have received nothing in satisfac- tion of their claim, since the whole rights arising through the death of the workman are submerged in the claim made under the Act. This construction is open to the criticism that it makes the Act, in the circumstances mentioned, impose a disability without conferring any corresponding benefit, and it has been said that " it must be borne in mind that the Act leaves untouched the common law rights of persons who do not come under it." ^ But the definition of workman,^ and the declaration that a workman may proceed either imder the Act or at law, but that an employer shall not be liable to pay under both,^ seem to lead necessarily to the conclusion above stated. For suppose a workman is killed, leaving some partial and some total dependants, and that an executor is appointed and takes proceedings under the Act.* One of the partial dependants who wished to raise an action of damages could not stop these proceedings and insist on his remedy being taken instead, but they would go on, and an award of the sum allowed by the Act would be made, which would fall to the total dependants. The dissentient dependant could not then successfully sue his action of damages, since the employer would at once answer that he had paid the " workman " compensation under the Act, and was not liable to pay again. And this answer will be equally good wherever one with an exclusive title under the Act — a " workman " — has been paid and settled with. The Act has not provided in terms for the cases where several are left wholly dependent, or partially dependent, and some of them wish to claim under the Act and some at law, l3ut it may be taken that if one claims under the Act, the others will be restricted to claiming under it also.^ As has been said, ' Per Lord President in Pagan, su2ira, p. 921. 2 Sec. 7 (2). 3 Sec. 1 (2) (6). * First Schedule (4) (5). ° See Act of Sederunt, sec. 2, p. 128. OF PERSONS ENTITLED TO COMPENSATION 6i there cannot be the two kinds of claim, and as the one under First the Act is indefeasible, the other must fall. Schedule Where there are several persons with a title to claim under ' / '^ the Act, settlement with one will in no way protect against claims by the others. Payment of the full amount of statutory liability to one will not discharge the claim of another, nor will payment to one restrict the amount claimable by another to the difference between the amount paid and the limit allowed by the Act. To ensure safety in settling claims by agreement, all those having a title must be arranged with, or otherwise those who have claimed timeously may be settled with after the lapse of six months from the date of death.^ Where an executor to the deceased has been appointed, these Executor, questions will not arise, as he has the title to claim for all interested, and can be safely dealt with.^ An employer, however, who is in the position of a debtor, has no power to petition for the appointment of an executor. In consequence of a claim under the Act excluding one at Burial ex- law, it follows that settlement of a claim for medical attendance fenced to"^^ and burial would be a discharge from those entitled to claim s"'"**"'"- under the Act, and would exclude claims at law by children or parents who otherwise might raise actions for solatium. It is unhkely, however, that the parties interested will allow this result to occur. When there is no claim by relatives under the Act, in respect that they were not dependent, they will no doubt pay these expenses to those entitled to them, so as to leave their right of action at law unimpeded. A settlement of a claim under the Act should bear that it Agreement is made in full of all that can be claimed thereunder or other- to Act. '^^ '^^ wise. If it does not bear to be a discharge of liability in terms of the Act, it would not prevent another person, who had a title at common law, from coming forward and claiming. When an agreement is come to with a workman, whose injury has caused continuing incapacity, by which he is to receive a certain weekly payment, the workman should see that it is recorded within six months, or is in a form capable of being recorded without further authority from the employer. Otherwise an employer may cease paying, and the workman may have difficulty in compelling payment, unless he first raise an action of declarator and record 1 Sec. 2 (1). 2 First Schedule, 1 (4). 6-2 WORKMEN'S COMPENSATION ACT, 1897 First the decree obtained therein setting forth the agreement. On the Schedule other hand, an employer who makes a weekly payment should obtain a receipt bearing that it has been made under the Act, and that the workman has elected to take that remedy, and renounces his right of action at law.'- ' Camphell v. Caledonian Railway, 1899, 36 S. L. R. 699. (1) (a). CHAPTER VII OF THE AMOUNT OF COMPENSATION The Act does not provide for any compensation by way of Solatium- solatium, either by itself or in addition to patrimonial loss. The first alternative is clear, from the fact that without patrimonial loss — the loss of support — there is no title to claim. It is arguable, however, that though patrimonial loss is an essential condition of the title to sue, a person thus possessing a title may have his wounded feelings considered in fixing the amount of compensation. Under the first provision of the First Schedule, the question is immaterial, and the argument is not touched, because the amount of compensation is a fixed, or relatively fixed, sum. But under the second provision it may be said • that solatium may be allowed for in determining what amount of compensation is " reasonable and proportionate to the injury to the said dependants." The answers to this contention are — (1) that the Act does not appear to proceed upon the analogy of the common law — which it indeed repudiates in disallowing a claim for solatium alone ; (2) that, as there is no claim for solatium by the law of England, introducing it here would be giving the Act a different construction in the two countries ; and (3) that similar words in Lord Campbell's Act have been held not to cover a claim for solatium} (1) The, amount of compensation under this Act shall he — Relatives (a) Where death results from the injury. pendent— (i.) If the workman leaves any dependants tvholly 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 these sums is the larger, hut not exceeding 1 Blake v. Midland Railway, 1852, 18 Q. B. 93, and see supra, p. 57. 63 64 WORKMEN'S COMPENSATION ACT, 1897 First Schedule (1) (a) (i.). Earnings. weekly earnings. 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 he deemed to be 156 times his average weekly earnings during the period of his actual employment under the said employer. Unlike the corresponding section of the Act of 1880, this defines exactly the amount recoverable by reference to the wages actually earned by the deceased, and does not fix a limit by reference to a standard wage.^ Only earnings in the employment of the same employer are regarded,^ and the actual sum of these is taken. It is clear under this Act that if a workman has been paid at a lower rate during part of the period mentioned, and has been advanced to a higher rate before the accident, the compensation is the sum of the payments during the three years, and not 156 times the higher rate.^ But questions may arise in connection with cases where a workman who has been injured in the course of an " employment " under the Act, has for part of the period mentioned been engaged under the same master at different wages at an employment not under the Act. An example of the facts raising the question occurred in a case under the Employers' Liability Act.* An apprentice mason, towards the end of his apprenticeship, was injured while engaged at a building operation to which the present Act would apply, but during the earlier years of his apprenticeship, and until within a short time of the accident, he had been engaged in his master's yard at an employment outwith this Act. His wages, however, and this was the custom of the trade, were much less (in other cases they might be much more) when at the occupa- tion in the course of which he was injured than they had been previously. If the present Act had to be applied to similar facts, it is submitted that only the wages earned at the employ- ment under the Act would be looked at. The word " employer " occurring in the Act is to be read as " employer under the Act," and the same may be said of '' employment." * When there has not been continuous employment for three ^ Bortick v. Sead, Wrightson, & Co., 1885, 53 L. T. (N. S.) 909. 2 Small V. M'Gormick & Ewing, 1899, 36 S. L. E. 700. ' Price V. Marsden, (1899) 1 Q. B. 493. ' The case was settled extra-judicially. ' Sec. 7 (1). OF THE AMOUNT OF COMPENSATION 65 years,^ the period of employment for the purpose of estimating Fii-st average weekly earnings is the time from the date of the accident Schedule back to the commencement of the last engagement of the work- ^ ' WJ'-)- man. In other words, if a break in the relationship of master and servant has occurred within three years, no regard is to be had to an engagement prior to the break. Disconnected periods are not to be added together to make up the three years. The word used in the Act is singular, " period," and it denotes a tract of time during which there has been continuous employ- ment. Where a workman met with an accident in March 1896, which disabled him from working for eleven months, and returned to the same employers under a new contract of service in Feb- ruary 1897, and was fatally injured in the employment in Sep- tember 1898, only the period from February 1897 to the date of the accident was regarded.^ The eleven months during which he was off work were held, though he had not been dismissed, to constitute a severance in the contractual relation between the deceased and his employers, especially in view of the fact that he was re-engaged for different work and at different wages. A strike has also been held to instruct a severance of this relationship, since during its continuance the workman is not in " the employment " any more than if he were working for a different master.* At apparent variance with these decisions is a Scotch case, in which a dock labourer, paid by the hour, had been engaged during two years at irregular intervals, amounting in all to seventy-seven days, and where the average weekly earnings were calculated by dividing the amount actually received by the number of weeks in the two years. But the judges said in that ease that they were precluded by the form in which the case was presented to them from considering the period of employment, and opinions on that question were reserved.* It is plain that the finding of the amount of compensation due in that case cannot be taken as a decision on the method of calculation which will stand along with the English decisions, as there was actually a gap of five months in the period of employment. Another case, decided in England prior to the leading cases above cited, may, if necessary, be explained in the same way. It is doubtful, ' First Schedule (1) (a) (i.). Q. B. 124 — a decision on the subsequent ^ Appleby Y. JSorseUy, 1899, 15 T. L. R. paragraph (6) of same schedule. 410. ^ Small v. M 'Cormick (1) (J). « Sec. 6, infra, p. 129. 2 First Schedule (12). ' Henderson v. Paul, 1867, 5 M. 628. ' See Form of Memorandum, p. 132. ' For form of petition, see pp. 135-139. ^ Act of Sederunt, sec. 7. Second ' Bone v. School Board of Sorn, 1886, Schedule (14) (6). 13 E. 768. 5 Second Schedule (6). 7 WORKMEN'S COMPENSATION ACT, 1897 Second Schedule (14) (c). By whom parties may appear. Petition to set forth all dependants. Intimation to those liable iu indemnity. Forum. this practice. The advantage of this course is obvious when a case is appealed, as the sheriff can only state a question on a point of law which he has decided, and there can be no doubt as to the points intended to be submitted to him if they are set forth in written XDleadings. The other points of procedure will be found in the books on Sheriff-Court practice, and only the specialties introduced by the present Act need be noticed here. Besides appearing in person, a party may appear by counsel, by a duly qualified law agent, or where any written authority from him is produced by any other person.^ Since the limits of the amount of compensation imposed by the Act in the case of fatal injury remain fixed, whatever number of dependants there may be, it is obviously necessary that the sheriff should know, in order properly to apportion the amount, how many there are. Consequently, means have been provided for bringing them all into the proceedings.^ Should any of the dependants, to whom intimation is made, not sist himself as a pursuer, the safer course will be to delay proceedings until the expiry of six months from the date of the death. In common law cases, a time for appearance has been fixed in the interlocutor ordering intimation to other members of the family,^ apparently on the footing that failure to sist within that time would be held to constitute a personal bar, but here, where a time is specified by the Act within which proceed- ings may be taken, it seems doubtful if a. claimant could Ije deprived of part of it by the terms of an interlocutor. A somewhat similar provision is made for the purpose of allowing those liable in indemnity to become parties to the proceedings in which the initial liability is fixed.* It is also directed that an application for the review or redemption of a weekly payment shall be intimated to the " parties interested," which may be held to include a party liable in indemnity.* In any event, it will be the prudent course for an employer intending to redeem to intimate to him against whom he has recourse, in order that the , latter may be precluded from questioning the terms of the redemption. The application is to be brought in the Sheriff-Court of the district in which all the parties concerned reside, or if they reside 1 Second Schedule (12) (c), Act of Sederunt, sec. 1 {a) [i) (c) (d), p. 128. ^ Act of Sederunt, sec. 2, p. 128. 3 Smith V. Wilsons, 1893, 21 R. 162. * Act of Sederunt, sec. 3, p. 129. ^ Act of Sederunt, see. 5, p. 129. PROCEDURE 99 iu different districts, of the district in wliich the accident arose. Second Power is given, however, to transfer a case from one Sheriff- Schedule Court to another. Under the relative section of the Act of ^' ^ ' ' Sederunt, it will be competent for a sheriff to remove a case to another Court in the same sheriffdom, or to one in a different sheriffdom.^ Obviously this power may be frequently exercised with advantage to all parties. Where, for instance, all the witnesses reside near another Sheriff- Court, it will be less expensive to have the proof there, and where an accident has occurred, say, in an engineering work in the remote Highlands, a locus other than that of the accident may be convenient. A sheriff may (and the same power is given to a committee Remit to or arbitrator) remit to a medical practitioner, appointed by ^onen ' ^™'''' the Secretary of State, to report on any matter which seems IS**] material to any question arising in the arbitration. A remit ^ is intended to be made only when the sheriff is in doubt after all the evidence offered by the parties has been led.^ The report is to be a written communication, and there is no authority given for calling the medical referee as a witness.* The sheriff is not directed either by the Act or the Statutory Eules to take the report as conclusive of the matter reported on, but it is proper that he should be guided by the reporter, as the sheriff makes the remit when in doubt himself, and the form in which it is made points to its being practically a reference. The expenses of the medical practitioner are in this case payable by the Treasury.^ When a workman in receipt of weekly payments declines to Examination be examined by a medical practitioner, provided and paid by hi r^cei^Tf the employer, or is dissatisfied with his certificate, and elects to ^^^ ^^^' submit himself for examination to a State-appointed referee, the First Schedule payment of his fee is not provided for by the Act. It seems clear that the fee cannot be paid by the Treasury, as there is no power given to do so, and it does not seem reasonable that the employer, who does not provide the medical practitioner, and who may have already provided and paid for another medical practitioner whose certificate the workman desires to question, 1 Sec. 4, p. 129. 3R^le2, p. 141. 2 Statutory Eules and Orders with ^ See Kule 19, p. 143. regard to the appointment and payment ^ Second Schedule (13), for scale of of medical referees, and the references, fees, see Rule 3, p. 143. see p. 1 iO, WORKMEN'S COMPENSATION ACT, 1897 First Schedule (11). Certificate conclusive evidence. Eecording of memorandum of award. Second Schedule (8). Review and redemption of weekly pay- ments. First Schedule (13). Review of sherifFs decision. should be liable for it. This view is supported by the fact that, in the earlier part of the paragraph in question, payment is provided for in the case of a practitioner selected by the employer, and is not provided for in the case of the employer's nominee being rejected. It would therefore follow that in such case the workman is liable in the fee. The Treasury not being the debtor in the fee, it will be the practitioner's right to refuse to make an examination until a reasonable fee has been paid. In this case the certificate is declared to be conclusive evidence of the workman's condition.^ If, therefore, it bears that the workman is fit to return to work, the employer will be entitled to cease the weekly payments. When an award is obtained, a memorandmn thereof is to be recorded in the Sheriff-Court of the district in which the person entitled to compensation resides. After that is done, it is declared to be enforcible as a Sheriff-Court judgment. No explanation is forthcoming why recording should take place in the Court to whose jurisdiction the claimant, and not the employer, is subject. Apparently such recording is also con- templated when a sheriff is arbitrator.^ Where an application for review of a weekly payment, or for redemption thereof, is made in the Court in which the original apphcation was determined, it may be made by way of a minute in the original process.^ When such application is made in another Court, in consequence of some of the parties having changed their residence,* it will apparently have to be by way of petition, just as if it were an original application. A decision of the sheriff on a matter of fact is final.^ The evidence does not require to be recorded, and no method is provided for bringing a judgment on the facts under review. A method is provided, however, for reviewing the determination by a sheriff of a question of law. The form of appeal is modelled on that under the Summary Prosecutions Appeals Act, 1875, the sheriff being directed, at the request of either party, to state a case on any question of law determined by him, which may be submitted to either Division of the Court of ' First Schedule (11), p. 115. 2 See Act of Sederunt, sec. 7 (6) ; also Second Schedule (13) (6). ^ Act of Sederunt, sec. 5, p. 129. ^ Second Schedule (9), p. 117. ^Powell V. Brmrni, (1899) 1 Q. B. 157, 160 ; Smith v. Lancashire, etc., Sail- way, (1899) 1 Q. B. 141, and cases infra. PROCEDURE Session.^ The case must state expressly the question of law, and Second also in what way it has been decided by the arbitrator.^ Where Schedule a case stated the facts, and questions of law arising thereon, but ' > ^^'' did not state the arbitrator's decision, it was remitted to him to amend the case by setting forth his determination.^ The Court will decide that question only, and will not allow any other to be raised.* Although it is clear that only a decision on a question of law Whether fact can be reviewed, it is far from clear what constitutes a question '"' ^' of law and what a question of fact. It has been said that every question as to the construction of a statute is a question of law, since a decision on such a question may govern a great number of cases, not identical in their facts, but having an element in common which would make the decision a precedent.^ A case may thus competently, though inconveniently, raise a question of law which, after a narrative of facts, baldly asks whether on these facts there is a case under the statute.^ A question may also be competent which raises the sufficiency of the evidence on which a finding of fact proceeds. This is shown by a case in which the Court set aside the decision of an arbitrator who found that a workman who had lost his thumb had not been disabled from earning full wages during the first two weeks after the accident. Although the same amount had been paid, there was no evidence that the workman could have exacted from his master the full wage to which he had been entitled before the accident, and consequently nothing to show that the payment was obligatory and not gratuitous on the part of the master. " If," said A. L. Smith, L.J., " a County Court judge decides a fact when there is no evidence upon which he could find it, this is a matter of law, for in such a case he has misdirected himself, and this is law." '' If, however, there is some evidence, the Court of review will not disturb the finding. In a case where the question was whether the workman had been injured " about," in the sense of in close propinquity to, a factory, and the arbitrator had decided 1 Second Schedule (li) (c), A. of S., * Durham, supra; Eaey. Fraser, 1899, sec. 9, p. 130. 36 S. L. E. 782. '^Durham v. Brown Bros., 1898, 1 F. ^ Per Lord M'Laren in Durham v. 279, 283. Brown Bros., 1898, 1 F. 285. ^ Murnin v. Galderwood, 1899, IF. ° Per Lord President, idem, p. 283. 634 ; 6 S. L. T. No. 427 ; 36 S. L. R. ' Chandler v. Smith, (1899) 2 Q. B. 453. 506. WORKMEN'S COMPENSATION ACT, 1897 Second Schedule (14) (c). Court of Session final. that he had, the Court said that the question was one of fact in the particular case to be decided by the tribunal before which the claim came in the first instance.^ Decisions that a claimant satisfied the established construction of dependant,^ and that a workman had not been guilty of serious and wilful misconduct,^ have also been treated as matter of fact. But the tendency of the Appeal Courts has rather been to regard an inference from facts as a question of construction, and to review a decision which is a finding of fact in that sense. Whether a workman was drunk or broke a rule of the employ- ment, is a pure question of fact ; but whether drunkenness or the breach of a rule in the particular case implied serious and wilful misconduct, is a question of the application of the facts. Although a decision on a certain point may be regarded as one of fact, yet in so far as the arbitrator gives reasons for his finding by stating the crucial and material facts proved, it is open to the Court to consider these facts. " If the conclusion of fact has been arrived at by means of a faulty syllogism, it would be monstrous that the Court should be unable to correct such a mistake." * Therefore findings repelling the defence of serious and wilful misconduct have been reviewed, and the facts considered.^ Whether an accident has arisen out of or in course of the employment has been treated as a question of law, and decisions of arbitrators have been recalled, without impugning any of their findings in fact.^ The judgment of the Court of Session appears to be final on the question of law. The words introduced in a section applicable to Scotland,^ " who may hear and determine the same finally and remit to the sheriff," appear to exclude appeal to the House of Lords. The rule of construction is " that the jurisdiction of a superior Court is not to be ousted, unless by express language in, or obvious inference from, some Act of ' Powdl V. Brown, (1899) 1 Q. B. 157. 2 Simmons v. White, (1899) 1 Q. B. 1005. ^ Mumboll V. Nunnery Colliery, 1899, 43 Sol. Journ. 242. * Holness v. Mackay, (1899) 2 Q. B.' 319, per Vaughan "Williams, L.J., 325. ° Todd V. Caledonian Railway, 1899, 36 S. L. E. 784 ; M'Nicol v. Speirs, 1899, 1 F. 604. " Smith V. Lancashire and Yorkshire Railway, (1899) 1 Q. B. 141 ; Holness v. Mackay, (1899) 2 Q. B. 319. ' Second Schedule (14) (c). PROCEDURE 103 Parliament," ^ and the words above quoted satisfy that require- Sec. 4, 6. ment. Only one matter is brought before the Court of Session, and " finally " cannot mean a judgment exhausting the cause as distinguished from previous interlocutory judgments, but must mean that judgment in that Court is to be conclusive of the matter submitted.^ In England, however, it is said, there is nothing to prevent the right of appeal, and if that is so, the question will be whether the implication thus arising is sufficient to override the plain meaniag of the provision applicable to Scotland. Where an arbitrator is agreed on by the parties, no provision No appeal is made for having his decision on a point of law brought under on'arbHrator. review. The provisions applicable to England, as to taking the opinion of a County Court judge, and then taking an appeal from his judgment, are declared to be not applicable to Scotland.^ Consequently the award of an agreed-on arbitrator can only be interfered with by way of reduction on the ordiaary grounds known to law. 2. In connection with Indemnity The law governing these claims has already been noticed. Proceedings and it has been incidentally observed that, though the right at law. to indemnity is conferred by the Act, it must be recovered by an action at law.* Provision has been made, however, for establishing in proceedings under the Act the grounds of the claim of indemnity.^ Intimitation may be made under an intimation, order from the sheriff fixing a time for the appearance of the party to be held liable in indemnity. If he appears he becomes a party to the cause, and cannot afterwards dispute the award, and if he consents thereto, the question of his liability to the undertaker may be decided by the arbitrator. The consent may 1 Per Pollock, B., in Oram v. Brearey, ^ Supra, pp. 80, 83, 96. 1877, L. R. 2 Ex. D. 346, approved by ^ Act of Sederunt, sec. 3, p. 128. It 'Lm&\ey,'h.3.,iuChadwickY. Ball, 1885, has been decided, under sec. i and the 14 Q. B. D. 858 ; Roxburgh County v. English Rules of Court, that notice of DalrympWs Tr.i., 1894, 21 R. 1063. intention to claim indemnity must ^ See also Portohello Magistrates v. be given, although the party claimed Ediriburgh Magistrates, 1882, 10 R. 130, against is a respondent in the primary and cases there cited. application. Appleby v. Eorsely, 1899, 3 Second Schedule (4) (15), pp. 116, 118. 43 Sol. Journ. 568. 104 WORKMEN'S COMPENSATION ACT, 1897 Act of Sederunt, sec. 3. Agreement to refer question of indemnity. Validity of award in question of indemnity. Intimation in case of redemption. be made by way of reference, so that the sheriff can pronounce an award on which diligence will follow. Such a reference, however, will not constitute an arbitration under the Act, which refers only questions of compensation, and the parties will not be entitled to have a case stated for the purpose of review, as is provided for in the case of the workman and his employer. The Act of Sederunt, assuming it to have the power, is not to be held to confer this right on the parties to what is really an arbitration under agreement, although it makes the indemnifier " a party to the case." The Act of Sederunt, in declaring that a person who does not appear after intimation has been made shall not be entitled to question the validity of the award,^ deals with a matter to which the Compensation Act does not extend. As this provision, how- ever, does not differ from what would probably be the common law applicable to most cases, it seems on that ground defensible. But if a case should occur where an employer, to ingratiate himself with his workmen, or for some similar reason, consents to pay the full amount allowed by the Act, when the extent of the injury plainly entitles the claimant to much less, it is submitted that the terms of the Act of Sederunt will not prevent the party from whom indemnity is sought from impugning the validity of the award. Where an employer proposes to allow an award to be given of consent, his safer course will be to intimate that to the indemnifier, and offer to allow him to take up the defence if he is dissatisfied with the proposed settlement. When, also, an employer proposes to redeem^ a weekly payment, intimation should be made to the person liable in indemnity.* For the question is not simply the value of an annuity of so much for a person of a certain age, since the extent of the injury as affecting the duration of life must be regarded. The elements that enter into the computation of the sum to be awarded as redemption are therefore variable, and an opportunity may be afforded the employer of considerably modifying the sum claimed. This consideration renders the matter of an award by consent of the greater importance to the person who has to indemnify, and again raises the question of his foreclosure by absence from disputing the validity of the award. 1 Sec. 3 (c). 2 First Schedule (13), p. 115. ^ Act of Sederunt, sec. 5, p. 129. PROCEDURE 105 As a person liable in indemnity is not empowered to apply Act of for redemption, an application in his name will be incompetent. Sederunt, But one paying indemnity is entitled at common law to an ' '_ assignation of the rights of the person for whom he pays, and Application the person liable may thus get himself put in the employer's liable in place, and either use his name or set forth a title as assignee. ™ or inaccuracy, or that such want, defect, or inaccuracy was occa- 1°"' • sioned 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 unincorporate, the notice may also be served by delivering the same at, or by sending it by post in a registered letter addressed to the employer at, the office, or, if there be more than one office, any one of the offices of such body. 3. — (1) If the Registrar of Friendly Societies, after taking Contracting 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 certificate is revoked, contract with any of those workmen that the provisions of the scheme shall be substituted for the provisions of this Act, and thereupon the employer shall be liable only in accordance with the scheme, but, save as afore- said, this Act shall apply notwithstanding any contract to the contrary made after the commencement 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 obliga- tion upon the workmen to join the scheme as a condition of their hiring. (4) If complaint is made to the Eegistrar of Friendly Societies by or on behalf of the workmen of any employer, that the pro- I lo APPENDIX Workmen's visions of any scheme are no longer on the whole so favourable to Compensa- the general body of workmen of such employer and their depend- tion Act, ajjts as the provisions of this Act, or tliat the provisions of such 1897. 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 Eegistrar of Friendly Societies in the event of a difference of opinion. (6) Whenever a scheme has been certified as aforesaid, it shall be the duty of the employer to answer all such inquiries, and to furnish all such accounts in regard to the scheme, as may be made or required by the Eegistrar of Friendly Societies. (7) The Chief Registrar of Friendly Societies shall include in his annual report the particulars of the proceedings of the Eegistrar under this Act. Sub-oontract- 4. Where, in an employment to which this Act applies, the ™^' undertakers, as hereinafter defined, contract with any person for the execution by or under such contractor of any work, and the undertakers would, 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 compensation which is- payable to the workman (whether under this Act or in respect of personal negligence or wilful act independently of this Act) by such contractor, or would be so payable if such contractor were an employer to whom this Act applies. Provided that the undertakers shall be entitled to be indemni- fied 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 pro- cess in, the trade or business carried on by such undertakers respectively. Compensation 5. — (1) Where any employer becomes liable under this Act case rfbank-'" *° P^^" Compensation in respect of any accident, and is entitled ruptcyof to any sum from insurers in respect of the amount due to a employer. workman under such liability, then in the event of the employer APPENDIX becoming bankrupt, or making a composition or arrangement Workmen's with his creditors, or if the employer is a company, of the com- Compensa- pany having commenced to be wound up, such workman shall tion Act, have a first charge upon the sum aforesaid for the amount so due, l°°7- 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 investment in the Post-OfEice Savings Bank of any sum allotted as compensation, and those provisions shall apply accordingly. (2) In the apphcation 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 Recovery of this Act was caused under circumstances creating a legal liability gt^anger ^^°^^ in some person other than the employer to pay damages in respect thereof, the workman may, at his option, proceed either at law against that person to recover damages, or against his employer for compensation under this Act, but not against both ; and if compensation be paid under this Act, the employer shall be entitled to be indemnified by the said other person. 7. — (1) This Act shall apply only to employment by the Application of " ' " ' "" Act and definitions. undertakers as hereinafter defined, on or in or about a railway, ■*-°* ^^^ factory, mine, quarry, or. engineering work, and to employment by the undertakers as hereinafter deBned, 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— " Eailway " means the railway of any railway company to which the Regulation of Eailways Act, 1873, applies, 36 & 37 Vict. and includes a light railway made under the Light "■ *^" Eailways Act, 1896 ; and " railway " and " railway 59 & 60 Vict. 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 applied by the Factory and Workshop Act, 1895, and every 58&59 Vict. laundry worked by steam, water, or other mechanical "• ^^' power : APPENDIX 50 & 51 Vict. " Mine " means a mine to which the Coal Mines Eegulation Sk^.^"ofl ir- ^ Act, 1887, or the Metalliferous Mines Eegulation Act, 35 & 36 Vict. 1 0170 1- & > c. 77. 1872, applies : ^7^58 Vict. " Quarry " means a quarry under the Quarries Act, 1894 : "Engineering work" means any work of construction or alteration or repair of a railroad, harbour, dock, canal, or sewer, and includes any other work for the con- struction, 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 Eegulation Act, 1887, or the Metalliferous Mines Eegulation Act, 1872, as the case may be; and in the case of an engineering work, means the person undertaking 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 unincorporate, and the legal personal representative of a deceased employer: " Workman " includes every person who is engaged in an employment to which this Act applies, whether by way of manual labour or otherwise, and whether his agreement is one of service or apprenticeship or otherwise, and is expressed or implied, is oral or in writing. Any reference to a workman who has been injured shall, where the workman is dead, include a reference to his legal personal representative or to his dependants, or other person to whom compensa- tion is payable : " Dependants " means — (a) in England and Ireland, such members of the 9 &_io Vict. workman's family specified in the Fatal Accidents Act, 1846, as were wholly or in part dependent upon the earnings of the workman at the time of his death ; and (&) in Scotland, such of the persons entitled, according to the law of Scotland, to sue the employer for damages or solatium in respect of the death of the workman, as were wholly or in part dependent upon the earnings of the workman at the time of his death. ■ 0. 93. APPENDIX 113 (3) A workman employed in a factory which is a shipbuilding Workmen's yard shall not be excluded from this Act by reason only that the Compensa- accident arose outside the yard in the course of his work upon a tion Act, vessel in any dock, river, or tidal water near the yard. 1897. 8. — (1) This Act shall not apply to persons in the naval or Appiicatiou to military service of the Crown, but otherwise shall apply to any emSoyment employment by or under the Crown to which this Act would of Crown. 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 50 & 5i Vict. anything in that Act, or any such warrant, may frame a scheme °" ^''' with a view to its being certified by the Eegistrar of Friendly Societies under this Act. 9. Any contract existing at the commencement of this Act, Provision as whereby a workman relinquishes any right to compensation from *°^t^j.acts^ 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 con- tract of service would determine if notice of the determination thereof were given at the commencement of this Act. 10. — (1) This Act shall come into operation on the first day Commence- of July one thousand eight hundred and ninety-eight. STdshorUiUe (2) This Act may be cited as the Workmen's Compensation Act, 1897. FIRST SCHEDULE Sees. 1, 5. 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 employ- 1 14 APPENDIX First ment by the said employer has been less than the said Schedule. three years, then the amount of his earnings during the said three years shall be deemed to be 156 times his average weekly earnings during the period of his actual employment under the said employer ; (ii.) if the workman does not leave any such dependants, but leaves any dependants in part dependent upon his earnings at the time of his death, such sum, not exceeding in any case the amount payable under the foregoing provisions, as may be agreed upon, or, in default of agreement, may be determined, on arisitration under this Act, to be reasonable and proportionate to the injury to the said dependants ; and (iii.) if he leaves no dependants, the reasonable expenses of his medical attendance and burial, not exceeding ten pounds ; (ft) 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 amoimt 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. I \ (4) The payment shall, in case of death, be made to the legal personal representative of the workman,' or, Tf 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 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 APPENDIX 115 Post Office Savings Bank by the registrar of the county court in his First name as registrar. Schedule. (8) Any sum to be invested may be so 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 banks, 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, never- theless, 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 pro- vided 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 as to the condition of the workman at the time of the examination shall be given to the employer and workman, and shall be conclusive evidence of that condition. If the workman refuses to submit, himself to such examination, or in any way obstructs the same, his right to such weekly payments shall be suspended until such examination has taken place. (12) Any weekly payment may be reviewed at the request either of the employer or of the workman, and on such review may be ended, diminished, or increased, subject to the maximum above provided, and the amount of payment shall, in default of agreement, be settled by arbitration under this Act. (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 committee 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 Ii6 APPENDIX First of compensation by a friendly society, the provisions of the proviso to Schedule, the iirst subsection of section eight, section sixteen, and section forty- one of the Friendly Societies Act, 1896, shall not apply to such society 59 & 60 Vict, in respect of such scheme. *■' "■ (16) In the application of this schedule to Scotland, the expression " registrar of the county court " means " sheriff clerk of the county," and "judge of the county court" means "sheriff." (17) In the application of this Act to Ireland, the provisions of the 40&41 Vict. County Officers and Courts (Ireland) Act, 1877, with respect to money deposited ia the Post Office Savings Bank under that Act shall apply to money invested in the Post Office Savings Bank under this Act. c. 56. Seel. SECON.D 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 work- men, 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 procedm-e 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 Parliament in accord- ance with regulations to be made by the Treasury. 52 cSc 53 Vict. (4) The Arbitration Act, 1889, shall not apply to any arbitration ''• *9- 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 APPENDIX 117 same powers of procuring the attendance of witnesses and the produc- Second tion of documents as if the claim for compensation had been made by Schedule. 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 applica- tion 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 compensation resides, who shall, subject to such rules, on being satisfied as to its genuineness, record such memo-! randum 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 concerned reside, or, if they reside in different districts, the district in which the acccident out of which the said matter arose occurred, without prejudice to any transfer in manner provided by rules of court. (10) The duty of a county court judge under this Act, or of an arbitrator appointed by him, shall, subject to rules of court, be part of the duties of the county court, and the officers of the court shall act accord- ingly, 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 51 & 52 Vict, provided by that section, shall have full effect without any further °- *^' consent. (11) No court fee shall be payable by any party in respect of any proceeding under this Act in the county court prior to the award. (12) Any sum awarded as compensation shall be paid on the receipt of the person to whom it is payable under any agreement or award, and ii8 APPENDIX Second his solicitor or agent shall not be entitled to recover from him, or to Schedule, 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 oj^ agent, such sum to be awarded subject to taxation and to the scale of costs prescribed by rules of court. (13) The Secretary of State may appoint legally qualified medical practitioners for the purpose of this Act, and any committee, arbitrator, or judge may, subject to regulations made by the Secretary of State and the Treasury, appoint any such practitioner to report on any matter which seems material to any question arising in the arbitration ; and the expense of any such medical practitioner shall, subject to Treasury regulations, be paid out of moneys to be provided by Parliament. (14) In the application of this schedule to 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 coiirt " : (6) Any award or agreement as to compensation under this Act may be competently recorded for execution in the books of Council and Session or Sheriff Court books, and shall be enforceable in like manner as a recorded decree arbitral : ((I) Any application to the sheriff as arbitrator shall be heard, tried, and determined summarily in the manner provided by the 39 & 40 Vict. fifty-second section of the Sheriff Courts (Scotland) Act, 70. 1876, save only that parties may be represented by any person authorised in writing to appear for them, and sub- ject to the declaration that it shall be competent to either I party, within the time and in accordance with the condi- ' tions prescribed by act of sederunt, to require the sheriff to I 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 deter- mine the same finally, and remit to the sheriff ^yith instruc- tion 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. FACTOEY AND WORKSHOP ACT, 1878, 41 Vict. Cap. 16 Factoryand Workshop Act, 1878. PART IV Definitions, Savings, Application to Scotland and Ireland, and Repeal (1) Definitions 93. The expression "textile factory" in this Act means — any Factories and premises wherein or within the close or curtilage of which steam, water, workshops to or other mechanical power is used to move or work any machinery applies. '^ employed in preparing, manufacturing, or finishing, or in any process incident to the manufacture of, cotton, wool, hair, silk, flax, hemp, jute, tow, china-glass, cocoa-nut fibre, or other like material, either separately or mixed together, or mixed with any other material, or any fabric made thereof : Provided that print works, bleaching and dyeing works, lace ware- houses, paper mills, flax scutch mills, rope works, and hat works shall not be deemed to be textile factories. The expression " non-textile factory " in this Act means — (1) Any works, warehouses, furnaces, mills, foundries, or places named in Part One of the Fourth Schedule to this Act. (2) Also any premises or places named in Part Two of the said schedule whereui, or within the close or curtilage or pre- cincts of which, steam, water, or other mechanical power is used in aid of the manufacturing process carried on there. (3) Also any premises wherein, or within the close or curtilage or precincts of which, any manual labour is exercised by way of trade or for purposes of gain in or incidental to the follow- ing purposes, or any of them ; that is to say, (a) In or incidental to the making of any article or of part of any article ; or, (&) in or incidental to the altering, repairing, ornamenting, or flnishing of any article ; or, (c) in or incidental to the adapting for sale of any article, and wherein, or within the close or curtilage or precincts of which, steam, water, or other mechanical power is used in aid of the manufacturing process carried on there. The expression "factory "in this Act means textile factory and non- textile factory, or either of such descriptions of factories. The expression " workshop " in this Act means — (1) Any premises or places named in Part Two of the Fourth 119 APPENDIX Factory and Workshop Act, 1878. Amended by Act of 1891, see p. 30. Schedule to this Act, which are not a factory within the meaning of this Act. (2) Also any premises, room, or place not being a factory within the meanuig of this Act, in which 23remises, room, or place, or within the close or curtilage or precincts of which premises, any manual labour is exercised by way of trade or for purposes of gain in or incidental to the following purposes or any of them ; that is to say, (a) In or incidental to the making of any article or of part of any article ; or, (&) in or incidental to the altermg, repairing, ornamenting, or finishing of any article ; or, (c) in or incidental to the adapt- ing for sale of any article, and to which or over which premises, room, or place the employer of the persons working therein has the right of access or control. A part of a factory or workshop may for the purposes of this Act be taken to be a separate factory or workshop ; and a place solely used as a dwelling shall not be deemed to form part of the factory or workshojj for the purposes of this Act. Where a place situate within the close, curtilage, or precincts form- ing a factory or workshop is solely used for some purpose other than the manufacturing process or handicraft carried on in the factory or work- shop, such place shall not be deemed to form part of that factory or workshop for the purposes of this Act, but shall, if otherwise it would be a factory or workshop, be deemed to be a separate factory or work- shop, and be regulated accordingly. Any premises or place shall not be excluded from the definition of a factory or workshop by reason only that such premises or place are or is in the open air. This Act shall not apply to such workshops, other than bakehouses, as are conducted on the system of not employing any child, young person, or woman therein, but save as aforesaid applies to all factories and workshops as before defined, inclusive of factories and workshops belonging to the Crown ; provided that in case of any public emergency a Secretary of State may exempt a factory or workshop belonging to the Crown from this Act to the extent and during the period named by him. The exercise by any child or young person in any recognised efficient school during a portion of the school hours of any manual labour for the purpose of instructing such child or young person in any art or handi- craft, shall not be deemed to be an exercise of manual labour for the purpose of gain within the meaning of this Act. APPENDIX FOUKTH SCHEDULE Factoryand _, „^ Workshop List op Factories and Workshops ^q-j; 1378 Part One Sees. 93, 96. Non-Textile Factories (1) " Print works," that is to say, any premises in whicli any persons "Printworks." are employed to print figures, patterns, or designs upon any cotton, linen, woollen, worsted, or silken yarn, or upon any woven or felted fabric not being paper. (2) "Bleaching and dyeing works," that is to say, any premises in "Bleacliing which the processes of bleaching, beetling, dyeing, calendering, finishing, and dyeing hooking, lapping, and making up and packing any yarn or cloth of any material, or the dressing or finishing of lace, or any one or more of such processes, or any process incidental thereto, are or is carried on. (3) "Earthenware works," that is to say, any place in which persons "Earthenware work for hire in making or assisting in making, finishing or assisting in ^™'''^^- finishing, earthenware (or china. Act of 1891, sec. 38) of any description, except bricks and tiles not being ornamental tiles. (4) " Lucifer-match works," that is to say, any place in which persons " Lucifer- work for hire in making lucifer matches, or in mixing the chemical ^^t''^^ works, 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 per- " Percussion- sous work for hire in making jjercussion-caps, or in mixing or storing the '^'^P work.s." chemical materials for making them, or in any process incidental to making percussion-cajjs. (6) "Cartridge works," that is to say, any place in which jiersons "Cartridge work for hire in making cartridges, or in any process incidental to '^^orks." 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 per- "Paper- sons work for hire in printing a pattern in colours ujjon sheets of paper, staining 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 "Fustiau- persons work for hire in fustian-cutting. cutting^ (9) "Blast furnaces," that is to say, any blast furnace or other fur- "Blast nace or premises in or on which the process of smelting or otherwise furnaces." obtaining any metal from the ores is carried on. (10) " Copper mills." "Copper (11) "Iron mills," that is to say, any mill, forge, or other premises in "'j^^'j^'jj^jjj^ „ 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, " Foundries." brass foundries, and other premises or places in which the process of founding or casting any metal is carried on; except any premises or APPENDIX Factory and Workshop Act, 1878. ** Metal and india-rubher works." "Paper mills. ' "Glass works." "Tobacco factories." ' ' Letterpress printiug works." "Bookbinding works." " Flax scutch mills." Sees. 93, 96. "Hat works." "Rope works." 'Bakehouses.' " Lace ware- houses." "Shipbuilding yards." "Quarries." "Pit-banks." 35 & 36 Vict, c. 76. 35 & 36 Vict, c. 77. places in which such process is carried on by not more than tive 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 manu- facture of any article of metal not being machinery, or in the manu- facture 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 manu- facture of paper is carried on. (15) " Glass works," that is to say, any premises in which the manu- facture of glass is carried on. (16) "Tobacco factories," that is to say, any premises in which the manufacture of tobacco is carried on. (17) "Letterpress printing works," that is to say, any premises in which the process of letterpress 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. Paet Two Non-Textile Factories and Workshops (20) " Hat works," that is to say, any premises in which the manu- facture 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 com- munication as is necessary for the transmission of power. (22) " Bakehouses," that is to say, any places in which are baked bread, biscuits, or confectionery, from the baking or selling of which a profit is derived. (23) "Lace warehouses," that is to say, any premises, room, or place not included in bleaching and dyeing works as hereinbefore defined, in which persons are employed upon any manufacturing process or handi- craft 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 a 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. FACTOEY AND WOEKSHOP ACT, 1895 Sfecial Eules and Eequieements Docks, etc. 23. — (1) The following provisions, namely : — (i.) Section eighty-two of the principal Act (a). Factory and Workshop Act, 1895. Extension to docks, etc., of (ii.) The provisions of the Factory Acts with respect to accidents (6). '^'i^^^^^ P™ vifiions of Factory Acts. Penal com- pensation to persons injured by want of fence to machinery, etc. (o) The Factory and Workshop Act, 1878, 41 Vict. cap. 16— 82. If any person is killed or suffers any bodily injury in consequence 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 consequence 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 fencing, 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 a Secretary of State determines : Provided that the occupier of a factory shall not be liable to a tine 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. (S) Sec. 22 (2) (3) of Factory Act of 1891, 54 & 55 Vict. cap. 75— Amendment of (2) The notice required under that 41 & 42 Vict, section shall, where the person killed or injured is not removed to his own residence, state both his residence and the place to which he has been removed. (3) Where a death has occurred by accident in any factory or workshop, the coroner shall forthwith advise the dis- trict inspector under this Act of the c. 16, sec. 31, as to notice of accidents. time and place of the holding of the inquest, and at such inquest any relative of any person whose death may have been caused by the accident with respect to which the inquest is being held, and any inspector under the principal Act, and the occupier of the factory or work- shop in which the accident occurred, and any person appointed by the order in writing of the majority of the work- people employed in the said factory or workshop, shall be at liberty to attend and examine any witness either in person or by his counsel, solicitor, or agent, subject nevertheless to the order of the coroner. Sees. 18-21 of Factory Act of 1895, 58 & 59 Vict, cap, 37— Accidents 18. For section thirty-one of tlie Notices of principal Act the following section shall accidents, be substituted, namely, — (1) Where there occurs in a factory or workshop any accident which either — ■ {a) Causes loss of life to a per- son employedinthefactory or in the workshop ; or (6) Causes to any person em- ployed in the factory or workshop such bodily in- jury as to prevent him on any one of the three work- ing days next after the occurrence of the accident, from being employed for five hours on his ordinary work, written notice shall forthwith be sent to the inspector for the district. (2) If the accident causes loss of life, 123 124 APPENDIX Factoryand Workshop Act, 1895. (iii.) Section sixty-eight of the principal Act with respect to the powers of inspectors (a). 3 & 39 Viet, c. 17. Inquests. or is produced either by machin- ery moved by steam, water, or other mechanical power, or through a vat, pan, or other structure filled with hot liquid or molten metal or other sub- stance, or by explosion or escape of gas, steam, or metal, then, unless notice thereof is required by section sixty-three of the Explosives Act, 1875, to be sent to a Government inspector, notice thereof shall forthwith be sent to the certifying surgeon of the district. (3) The notice shall state the residence of the person killed or injured, and the place to which he has been removed. (4) If any notice required by this section to be sent with respect to an accident in a factory or workshop is not so sent, the occupier of the factory or work- shop shall be liable to a fine not exceeding five pounds. (5) If any accident to which this section applies occurs to a peison employed in an iron mill or blast furnace, or other factory or work- shop, where the occupier is not the actual employer of the per- son killed or injured, the actual employer shall immediately re- ytort the same to the occupier, and in default shall be liable to a fine not exceeding five pounds. (6) This section shall extend to work- shops conducted on the system of not employing any child, youug person, or woman therein. 19. Where a death has occurred by accident in any factory or workshop, the coroner shall adjourn the inquest, unless the inspector or some person on behalf of a Secretary of State is present to watch the proceedings, and shall at least four days before holding the ad- journed inquest send to the inspector notice in writing of the time and place of holding the adjourned inquest. Provided that, if the accident has not occasioned the death of more than one person, and the coroner has sent to the inspector notice of the time aud place of holding the inquest at such time as to reach the inspector not less than twenty- four hours before the time of holding the same, it shall not be imperative on him to adjourn the inquest in pursuance of this section if the majority of the jury think it unnecessary so to adjourn. 20. (1) Every occupier of a factory Eegister of or workshop shall keep a register of acci- accidents, dents, and shall enter therein every accident occurring in the factory or work- shop of which notice is required by the Factory Acts, within one week after the occurrence of the accident, and this register shall be at all times open to inspection by the inspector and by the certifying surgeon for the district. (2) If any occupier of a factory or workshop makes default in complying Avith the requirements of this section, he shall be liable on summary conviction to a fine not exceeding ten pounds. (a) Act of 1878, sra^ra — 68. An inspector under Ibis Act shall. Powers of for the purpose of the execution of this inspectors. Act, have power to do all or any of the following things ; namely, (1) To enter, inspect, and examine at all reasonable times, by day and night, a factory and a workshop and every part thereof, when he has reasonable cause to believe that any person is employed therein, and to enter by day any place which he has reasonable cause to believe to be a factory or workshop ; and (2) To take with him in either case a constable into a factory in which he has reasonable cause to appre- hend any serious obstruction in the execution of his duty ; and (3) To require the production of the registers, certificates, notices, and documents kept in pursuance of this Act, and to inspect, ex- amine, aud copy the same ; and (J) To make such examination and inquiry as may be necessary to ascertain whether the enactments for the time being in force re- lating to public health and the enactments of this Act are com- plied with, so far as respects the factory or workshop and the persons employed therein ; and (5) To enter any school in which he has reasonable cause to believe that children employed in a factory or workshop are for the time being educated ; and (6) To examine, either alone or in- the APPENDIX (iv.) Sections eight to twelve of the Act of 1891 with respect to Factoryand special rules for dangerous employments (a), and Workshop Act, 1895. presence of any other person, as he thinks fit, with respect to matters under this Act, every person whom he finds in a factory or workshop or such a school as aforesaid, or whom he has reasonable cause to believe to be Of to have been within the preceding two months employed in a factory or workshop, and to requii'e such person to be so examined, and to sign a declara- tion of the truth of the matters respecting which he is so exam- ined ; and (7) To exercise such other powers as may be necessary for carrying this Act into effect. The occupier of every factory and workshop, his agents and servants, shall furnish the means req^uired by an in- spector as necessary for an entry, ■inspection, examination, inquiry, or the exercise of his powers under this Act in relation to such factory and workshop. Every person who wilfully delays an inspector in the exercise of any power under this section, or who fails to comply with a requisition of an in- spector in pursuance of this section, or to produce any certificate or document which he is required by or in pursuance of this Act to produce, or who conceals or prevents a child, young person, or woman from appearing before or being examined by an inspector, or attempts so to conceal or prevent a child, young person, or woman, shall be deemed to obstruct an inspector in the execution of his duties under this Act : Provided always that no one shall be required under this section to answer any ques- tion or to give any evidence tending to criminate himself. Where an inspector is obsti'ucted in the execution of his duties under this Act, the person obstructing him shall be liable to a fine not exceeding five pounds ; and where an inspector is so obstructed in a factory or workshop, the occupier of that factory or workshop shall be liable to a fine not exceeding five, or, where the offence is committed at night, twenty pounds ; and where an inspector is so ob- sti-ueted in a factory or workshop within the meaning of section sixteen of this Act, the occupier shall be liable to a fine not exceeding one, or where the offence is committed at night, five pounds. (a) 54 & 55 Vict. cap. 75— Hiiwial RuUs and Requirements 8. (1) Where the Secretary of State certifies that in his opinion any machinery or process or particular de- scription of manual labour used in a factory or workshop (other than a domestic workshop) is dangerous or in- jurious 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 provisions 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 tlie occupier serves on the chief inspector a notice in writing that he objects to the rules or requirement, the rules shall be estab- lished, or, as the case may be, the requirement shall be observed. • (3) If the notice of objection suggests any modification of the rules or require- ment, the Secretary of State shall con- sider 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, sub- ject 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 estab- lished, or the requisition shall have effect, as settled by an award on arbitra- tion. (5) Any notice under this section may beserved by post. (6) With respect to arbitrations under this Act, the provisions in the First Schedule to this Act shall have effect. Special rules and require- ments as to dangerous ami unhealthy incidents of employment. 126 APPENDIX Factory and Workshop Act, 1895. . (v.) The provisions of this Act with resjDect to the power to make orders as to dangerous machines (a) Penalty for contravention of special rules orrequirenient. Amendment of special rules. Publication of special rules. (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 convic- tion 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 require- ment made under this Act, shall be deemed not to be kept in conformity with the principal Act. 10. (1) After special rules are estab- lished under this Act in any factory or workshop, the Secretary of State may from time to time propose to the occupier of the factory or workshop any amend- ment of the rules or any new rules ; and the provisions of this Act with respect to the original rules shall apply to all such amendments and new rules in like manner, as nearly as may be, as they apply to the original rules. (2) The occupier of any factory or workshop in which special rules are established, may from time to time pro- pose in writing to the chief inspector, with the approval of the Secretary of State, any amendment of the rules or any new rules, and the provisions of this Act with respect to a suggestion of an occupier for modifying the special rules proposed by a chief inspector shall apply to all such amendments and new rales in like manner, as nearly as may be, as they apply to such a suggestion. 11. (1) Printed copies of all special rules for the time being in force under this Act in any factory or workshop, shall be kept posted up in legible characters in conspicuous places in the factory or workshop, where they may be conveniently read jjy the persons em- ployed. In a factory or workshop in Wales or Monmouthshire the rules shall be posted up in the Welsh language also. (2) A printed copy of all such rules shall be given by the occupier to any person afl'ected thereby on his or her application. (3) If the occupier of any factory or workshop fails to comply with any pro- vision of this section, he shall be liable on summary conviction to a, fine not exceeding ten pounds. (4) Every person who pulls down, injures, or defaces any special rules when posted up in pursuance of this Act, or any notice posted up in pur- suance of the special rules, shall be liable on summary conviction to a fine not exceeding five pounds. 12. An inspector shall, when required. Certified copies certify a copy which is shown to his of special rules satisfaction to be a true copy of any to be evidence, special rules for the time being estab- lished under this Act for any factory or workshop, and a copy so certified shall be evidence (but not to the exclusion of other proof) of those special rules, and of the fact that they are duly established under this Act. (a) Sec. 4— 4. (1) A court of summary jurisdiction power to make may, on complaint by an inspector, and order as to on being satisfied that any machine used dangerous in a factory or workshop is in such a machine, 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 jiartz by the inspector, and on leceiving evidence that the use of any such machine in- volves 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 en- titled to control the use of the machine shall be liable to a fine not exceeding forty shillings a day during such con- travention. APPENDIX 127 shall have effect as if— Factoryand (a) Every dock, wharf, quay, and warehouse, and, so far as Workshop relates to the process of loading or unloading therefrom or Act, 1895. thereto, all machinery and plant used in that process ; and ■ (5) 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 connection with a building, 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. Act of ACT OF SEDERUNT bated Juxe 3rd, 1898, to Regulate in Sederunt. certain points the Procedure under the Workmen's Coji- PENSATiON Act, 1897 (60 & 61 Vict. cap. 37) The Lords of Council and Session, in virtue of the powers conferred by the "Workmen's Compensation Act, 1897 (hereinafter called "the Act"), and in pursuance of said Act, do enact and ordain as follows : — 1. A party to any arbitration under the Act may appear to be represented — (a) In person ; (6) By counsel ; (c) By a duly qualified law agent ; or (d) Where written authority from him is produced, by a member of his family, or any other person ; but no fee paid to a counsel shall be allowed on taxation, unless the arbitrator has certified that the employment of counsel was proper ; and no person other than a counsel (when the employment of counsel is authorised), or a dvily qualified law agent, shall be entitled to have any fee or reward for appearing or acting on behalf of any party in an arbi- tration under the Act; provided always that an arbitrator may, in the case of a workman appearing in person, or a member of his family appearing for him, or in the case of a manager, clerk, or other servant appearing as the representative of an employer, make such allowance in respect of loss of time and traveUing expenses as he shall think reasonable. 2. A petition craving compensation under the Act in a case where death has resulted from the accident, shall set forth the names of all the dependants (including those persons who claim to rank as dependants), so far as known to the pursuer or pursuers, and, where it is presented by or on behalf of some only of the enumerated dependants, the rest of them shall be called as defenders ; provided always, that if in the course of the proceedings it ajjpears that there are other dependants than those who are parties thereto, the Sheriff may order the petition to be served upon the omitted dependants, and may sist procedure in order to enable him or them to appear. 3. Where a claim for compensation under the Act is made against the undertakers, they may, at the calling of the case, move the Sheriff 128 APPENDIX 129 for authority to serve a copy of the petition, together with a notice of Act of the claim for indemnity, upon any person against whom they intend to Sederunt. claim indemnity, and (a) such persons may, within the time fixed by the Sheriff, lodge a notice of appearance, and (J), if he does, he shall there- after be deemed to be a party to the case, and the question of his liability to indemnify the undertakers may, if he and they consent, be summarily and finally determined therein, provided always that, if he is held in that process not to be liable to indemnify the undertakers, he shall not be subjected in any part of the pursuer's expenses, or (c), if he fails to lodge a notice of appearance, he shall not be entitled, in any subsequent proceedings against him at the instance of the undertakers, to dispute the validity of any award made under the petition, whether the same be made of consent or otherwise. 4. If a Sheriff before whom an application under the Act is brought is of opinion that the case can be more conveniently tried and determined in another Sheriff Court, being one within the district attached to which either the accident giving rise to the application occurred or any defender resides, he may, on the motion of any of the parties, make an order remitting the case to such Sheriff Court, and on such order being made it shall be the duty of the Sheriff-Clerk to transmit the application with all the relative documents to the Clerk of the Court named in the order, and the case shall thereafter proceed in the last-mentioned Court as if it had originated there. 5. An application to review a weekly payment under paragraph 12 of the First Schedule appended to the Act, or an application to redeem liability for a weekly payment under paragraph 13 of the said Schedule, if made in the Court in which the order for the weekly payment was pronounced, shall be made by a minute lodged in the original process, which minute shall be intimated to the other party or parties interested, and thereafter be disposed of summarily as if it were a petition under the 52nd section of the Sheriff Courts (Scotland) Act, 1876. The like procedure may be followed in the case of an application under paragraph 12 of the Second Schedule appended to the Act, and in all the cases referred to in this clause a memorandum of the Sheriff's determination shall be entered by the Sheriff-Clerk in the special register kept for the purposes of the Act. 6. In any arbitration under the Act, the cost of and incident to the same and the proceedings connected therewith shall not exceed the limits prescribed by the Act of Sederunt of 4 th December 1878, entituled "An Act of Sederunt regulating the fees of agents practising before the Sheriff Courts in Scotland," and the regulations and table of fees therein contained shall, so far as applicable, be held to apply to all proceedings under the Act. It shall be competent to an arbitrator agreed on by the parties to direct payment to his clerk of such remunera- tion as may be allowed by the auditor of the Sheriff Court of the district, but not exceeding a fee of SA for each day of the trial, a fee of 5s. for each other necessary meeting with the parties, and a fee of 2s. for each necessary letter, besides outlays and copying charges. 9 I30 APPENDIX Act of 7. (a) Tlie memorandum as to any matter decided by a committee, Sederunt, or by an arbitrator other than a Sheriff, or by agreement, which is by paragraph 8 of the Second Schedule appended to the Act required to be sent to the Sheriff-Clerk, shall be as nearly as may be in the form set forth in Schedule A appended hereto. Where such memorandum purports to be signed by or on behalf of all the parties interested, or where it purports to be a memorandum of a decision or award of a com- mittee or of an arbitrator agreed on by the parties, and to be signed in the former case by the secretary or by at least two members of the committee, and in the latter case by the arbitrator, the Sheriff-Clerk shall proceed to record it in the special register to be kept by him for the purpose, without further proof of its genuineness. In all other cases he shall, before he records it, send a copy (for which, unless it is supplied ,' ' to him along with the memorandum, he shall be allowed to charge at \ I the rate of Is. per sheet) to the party or parties interested (other than ' the party from whom he received it) in a registered letter containing a ; request that he may be informed within a reasonable specified time whether the memorandum and award (or agreement) set forth therein are genuine ; and if within the specified time he receives no intimation that the genuineness is disputed, then he shall record the memorandum without further proof ; but if the genuineness is disputed, he shall send a notification of the fact to the party from whom he received the memorandum, along with an intimation that the memorandum will not be recorded without a special warrant from the Sheriff. (6) A judgment of a SheriiT disposing of an application made to him under the Act, or a certified copy thereof, shall be dealt with by the Sheriff-Clerk as if it were a memorandum as to a matter decided by an arbitrator agreed on by the parties duly signed by the arbitrator, as shall also a certificate granted by a Court under subsection 4 of section 1 of the Act. 8. Where an award, or a memorandum under paragraph 8 of the Second Schedule appended to the Act, or a certificate granted by a Court under subsection 4 of section 1 of the Act, has been recorded in the books of any Court, and any party takes in another Court any pro- ceedings under the Act with reference to the subject-matter of such award, memorandum, or certificate, he shall lodge with his application an extract or certified copy of such award, memorandum, or certificate. 9. The following regulations shall apply to Cases to be stated by a Sheriff in virtue of the provision contained in paragraph 14 (c) of the Second Schedule appended to the Act : — (a) An application to a Sheriff to state a Case on a question of law determined by him, shall be made by minute lodged in the process within seven days after the Sheriff has issued his award, and such minute shall set forth the question (or questions) of law which is (or are) proposed as the subject- matter of the Case, and shall be accompanied by a deposit of ^ £1, which shall be paid to the Sheriff-Clerk as his fee for preparing the Case, APPENDIX (b) The Slieriff-Clerk shall, within seven days from the lodging of Act of such minute accompanied as aforesaid, prepare the Case and Sederunt. submit the same in draft to the parties or their agents. - — (c) Should the parties or their agents fail to agree as to the terms of the Case, these shall be settled by the Sheriff, provided always, that if the Sheriff on a draft Case being submitted to him is of opinion that any question of law stated in it was not raised by the admissions made or the facts proved before him, or that the application for a Case is frivolous, he may refuse to state or sign the Case, but in that event he shall grant to the applicant a certificate specifying the cause, and bearing the date, of the refusal. (d) The Case shall be as nearly as possible in the form set forth in Schedule B appended hereto, and shall bear to be stated by the Sheriff, and shall be signed by him. (e) The appellant shall, within seven days after the Case as settled has been delivered to him, give written notice of his inten- tion to proceed with it, and of the Division to which he proposes to submit it, to the other party or parties interested, and shall at the same time send to each of such parties a copy of the Case. He shall also within the said seven days transmit the Case by post to, or cause the same to be lodged with, the principal clerk of the Division mentioned in the foresaid notice, together with a certificate under the hand of himself or his law agent of the notice having been given to the other parties. (/) The regulations as to the printing of appeals from the Sheriff Courts contained in the Act of Sederunt of 10th March 1870, "anent probation and appeals from inferior courts," shall apply to Cases stated under the Act, provided always that it shall not be necessary to print any document, except the Case, without a special order from the Court, and provided also that either party may move for an order on the Sheriff- Clerk to transmit the process. (g) The Court shall have power when determining a Case to make such order arising out of the answer (or answers) given by them to the question (or questions) put as they shall think necessary, and also to make such order as to the costs of the Case as to them may seem right. They may also, before giving their determination, send back the Case to the Sheriff for amendment. (h) When a Sheriff has refused to state and sign a Case, the applicant for the Case may within seven days from the date of such refusal apply by a written note to one of the Divisions of the Court of Session for an order upon the other party or parties to show cause why a Case should not be stated. Such note, which may be in the form of Schedule C appended hereto, shall be accompanied by the above-mentioned certificate of refusal, and shall state shortly the nature of the cause, the facts, and the question or questions of law which the applicant desires to raise, and 132 APPENDIX Act of any Judge of the Division, or in vacation the Lord Ordinary Sederunt. officiating on the Bills, may, after intimation to the other •" — party or parties, dispose of it summarily, and his judgment upon it, as well as upon the question of costs, shall be final. If an order is pronounced requiring the Sheriff to state and sign a Case, the Case shall be stated as hereinbefore pro- vided, and these regulations shall apply to the subsequent procedure. And the Lords APPOINT this Act to be inserted in the Books of Sederunt, and to be printed and published in common form. APPENDIX Schedule A Form of Memorandum under paragraph 8 of Schedule II. To the Sheriff-Clerk of the County of In the matter of an arbitration under the Workmen's Compensation Act, 1897, between A. B. {name and design Mm), Applicant, and C. D. & Co. Limited {name and design them), Respondents. Take notice that in the foresaid arbitration, in which the applicant claimed compensation from the respondents in respect of bodily injury caused to him \or as the case may be] by accident arising out of and in the course of his employment as a workman in the service of the respondents at on (to he varied according to circumstances), the following decision was, on the day of 18 , given by a committee representative of the said C. D. & Co. Limited, and their workmen, having power to settle matters under the above-mentioned Act in the case of the said firm and their workmen, that is to say : [or, the following award was, on the day of 18 made and given by E. F., being an arbitrator agreed on by the said parties, that is to say :] [Here set out the decision or award."] pursr Act. {Signature.) You are requested to record this memorandum pursuant to paragraph 8 of the Second Schedule to the above-mentioned Act. Dated this day of 18 . ; {Note. — The above form can easily be varied to meet the case of an 'agreement.) APPENDIX 133 Schedule B Act of Sederunt. Form of Stated Case In the Sheriff Court of at , on appeal, to the Division of the Court of Session, in the matter of an arbitration under the Workmen's Compensation Act, 1897, between A. B. (name and design Mm), Appellant, and C. D. & Co. {name and design them). Respondents. This is an arbitration [state concisely and without argument the nature of the application, and the facts admitted or proved which raise the question (or questions) of law to be submitted on appeal]. The question (or questions) of law for the opinion of the Court is (or are) [state it or them']. This Case is stated [or, as adjusted by the parties, is stated] by me. {Signature of Sheriff.) Dated this day of 18 . Schedule C Form of Note for Order to state a Case In the Sheriff Court of at , on appeal, at the instance of A. B. {name and design him), Appellant, to the Division of the Court of Session, in the matter of an arbitration under the Workmen's Compensation Act, 1897, between {state the parties). In this arbitration, which was decided by Sheriff , on , the said Sheriff has refused, conform to certificate here- with produced, to state and sign a Case for which the Appellant duly applied in writing. [Here state concisely and 'without argument the nature of the applica- tion, and the facts alleged to be admitted or proved, lohich raise the question {or questions) of law proposed to be submitted on appeal.] The question (or questions) of law proposed to be submitted for the opinion of the Court is (or are) [state it or them]. The Appellant prays for an order on the Eespondents, the said , to show cause why a case should not be stated by the Sheriff for the following reasons : — [Here state seriatim the reasons.] [To be signed by the Appellant or his counsel or law agent.] Dated this day of 18 . Sheriff Courts (Scotland) Act, 1876. SHEEIFF COUETS (SCOTLAND) ACT, 1876, 39 k 40 Vict. CAP. 16. Sec. 52. In every case of an application, whether by appeal or petition, made to the Sheriff under any Act of Parliament which provides, or according to any practice in the Sheriff Court which allows, that the same shall be disposed of in a summary manner in the Sheriff Court without record of the defence or evidence, and without the judg- ment being subject to review, but which does not more particularly provide in what form the same shall be heard, tried, and determined, the application may be by petition in one of the forms as nearly as may be contained in Schedule A annexed to this Act, and the Sheriff shall appoint the application to be served, and the parties to be heard at a diet to he fixed by him, and shall at that diet, or at an adjourned diet, summarily dispose of the matter after i^roof led when necessary, and hearing parties or their procurators thereon, and shall give his judgment in writing. SCHEDULE (A) In the Sheriff Court of shire at , A. B. [design hini], — Pursuer ; AGAINST C. D. [design liini], — Defender. [ When any jparty sues or is sued, in any special character — as trustee or inspector or otherwise — state what it is.'] The above-named pursuer submits to the Court the Condescendence and Note of Pleas in Law hereto annexed, and prays the Court — (a) To grant a decree against the above-named defender, ordaining him to pay to the pursuer the sum of sterling. Condescendence • [State articulately the facts lohich form the grounds of action.] Note of Pleas in Law [State them articulately. ] Warrant Note. — In all these writs, where interest and expenses, or either, are sought, they must be prayed for. Every writ shall be signed by the pursuer or his law agent, who shall add his address. 134 APPENDIX 135 SUGGESTED FORMS Suggested Forms. Notice of Accident \Place and date.] To X. Y. [JSfame and address of employer.'] Sir, I hereby give notice \jf not given by claimant, state on whose behalf], that on [date of accident], A. B. [name and address of injured] was injured [or killed, or received injuries from the effect of which he died on , as the case may be], by the [breaking of chain, or as the case may be], at [place lohere workman was injured]. [Signed] Claim by Injured Workman In the Sheriff Court of the Lothians and Peebles at Edinburgh, Michael Gilhoolt, Labourer, residing at 334 Cowgate, Edinburgh, — Pursuer ; AGAINST Smith & Mactavish, Builders, 137 Dairy Eoad, Edinburgh, — Defenders. The above-named pursuer submits to the Court the Condescendence and Note of Pleas in Law hereto annexed, and prays the Court — To grant a decree against the above-named defender, ordaining him to pay to the pursuer the sum of 10s. weekly, beginning the first weekly payment on [insert date of Ibth day after the accident, counting the day on which the accident occurred as the first day], with expenses. Condescendence 1. On 1st July 1900 the pursuer was employed by the defenders at the erection of the Memorial Hall in George Street. Said building was then over thirty feet in height, and scaffolding was being used for its construction. Defenders, who are builders, were erecting said build- ing under contract with the proprietors, the Memorial trustees. 2. While engaged in carrying a hod of lime up the ladder, between the second and third floors of said building, the pursuer's foot slipped and he fell to the basement of said building. Notice of said accident was served on defenders on 14th July 1900. 3. In consequence of said fall pursuer has suffered permanent dis- ablement. His left leg was badly fractured, and had to be amjJutated. 136 APPENDIX Suggested Since the date of the said accident the pursuer has been unable to earn Forms. any wages, and in the future he will be equally incapacitated. 4. The pursuer was in the employment of the defenders for three months prior to the accident, and during that time he was earning wages at the rate of £A. per week. This application is made under the Workmen's Compensation Act, 1897. Pleas in Law 1. The erection of said building being an undertaking within the meaning of the Workmen's Compensation Act, 1897, and the defenders being the undertakers thereof, pursuer is entitled to compensation from them. 2. The pursuer being permanently incapacitated as the result of said accident, is entitled to a weekly payment of the amount concluded for. In respect lohereof, David How, 300 Princes Street, Edinburgh, Pror. for Pursuer. In the Sheriff Court of the Lothians and Peebles, at Edinburgh, DEFENCES IN THE Arbitration Michael Gilhooly, Labourer, residing at 334 Cowgate, Edinburgh, — Pursuer ; against Smith & Mactavish, Builders, 137 Daby Road, Edinburgh, — Defenders. Answers to Condescendence 1. Admitted that pursuer was employed by defenders at said build- ing, which was being erected by defenders. Denied that any part thereof had attained the height of thirty feet. 2. Admitted that pursuer was injured by falling from a ladder to the basement, and that notice was duly served. Averred that pursuer fell in consequence of being drunk, and that he had, prior to the accident, been ordered by the defenders' foreman to leave the building. 3. Admitted that pursuer's leg has had to be amputated. Denied that he is totally incapacitated. Pursuer has been earning occasional wages as night watchman at street obstructions, and is able for similar employment. From these sources pursuer is able to earn half a crown per week. APPENDIX 137 4. Admitted that pursuer was in defenders' employment as stated. Suggested Quoad ultra denied. His wages never exceeded 18s. per week, and Forms. averaged 16s. per week. Pleas in Law 1. Said building not having been over thirty feet in height, the Workmen's Compensation Act, 1897, does not apply. 2. The pursuer's injury being attributable to his serious and wilful misconduct, he is not entitled to compensation. 3. In any event, the pursuer's average earnings being only 16s. per week, he is not entitled to a weekly payment of more than 8s. under the provisions of the Act founded on. 4. Pursuer being able to earn two shillings and sixpence per week, that amount falls to be deducted from the maximum allowed by the Act. • Thos. Muebat, 64 Duke Street, Edinburgh, Pror. for Defenders. Claim by Dependants In the Sheriff Court of the Lothians and Peebles, at Edinburgh, Mary Moreison or Scott, 130 Pleasance, Edinburgh, widow of the deceased John Scott, sometime residing there, as an Individual, and also as Tutor and Administrator-rQ-Law for her son, James Scott, — Pursuers ; AGAINST Barclay & Adamson, Bakers, 301 George Street, Edinburgh, — Defenders. The above-named pursuers submit to the Court the Condescendence and Note of Pleas in Law hereto annexed, and pray the Court — To ordain the defenders to pay to the pursuers the sum of £300 in such proportions to each as the Court may direct, with legal interest thereon, from the date of citation hereto till payment ; with expenses. Condescendence 1. The pursuers are the widow and pupil child of the said John Scott, James Scott being aged thirteen. The said John Scott was employed by the defenders as foreman at their bakery in George Street. The pursuers were wholly dependent on the deceased for their support. There were no others dependent on deceased {or if others, name them). 138 APPENDIX Suggested 2. On the 2nd May 1899 the said John Scott received injuries Forms. from several bags of flour falling on him in said bakery. He survived said injuries only a few hours. Said bakery is a warehouse within the meaning of the Factory and Workshop Act of 1895, and of section 7 of the Workmen's Compensation Act. Notice of said accident was given on 10th May last. 3. The wages earned by the deceased were over two pounds a week for the three years prior to the accident, during the whole of which time he had been in the employment of the defenders. The sum con- cluded for is less than three years' wages. This application is made under the Workmen's Compensation Act, 1897. Pleas in Law 1. The defenders' premises, in which the deceased was injm-ed, being a factory within the meaning of section 7 of the Workmen's Compensa- tion Act, the defenders are liable in compensation. 2. The pursuers being wholly dependent on the deceased, are entitled to the sum sued for, in such proportions as the Court may direct. In respect whereof, David How, 300 Princes Street, Edinburgh, Pror. for Pursuers. In the Sheriff Court of the Lothians and Peebles, at Edinburgh, Defences in the Arbitbation jMary Mobeison or Scott, 130 Pleasance, Edinburgh, ividow of the deceased John Scott, sometime residing there, as an Individual, and also as Tutor and Administrator-in-Law for her son, James Scott, — Pursuers ; AGAINST Baeclat & Adamson, Bakers, 301 George Street, Edinburgh, — Defenders. Answebs to Condescendence 1. Admitted, except the averment as to pursuer's dependence. Averred that the female piu-suer is liferenter of a house in Davidson's Mains, which yields her a free annual return of £10, The male pursuer holds a scholarship known as the Scott Bursary, the annual value of which is £b. APPENDIX 139 2. Admitted that pursuer met his death, and that notice was given Suggested as alleged. Denied that said bakery is a factory. The premises consist Forms. of a retail shop in front, and of a bakery behind, in which no mechanical power is used. 3. Admitted. Pleas in Law 1. Said premises being a retail shop and bakery, where no mechan- ical power is used, do not constitute a factory as alleged, and the defenders are not subject to the provisions of the Acts libelled. 2. The pursuers not having been wholly dependent on the deceased, are not entitled, without proof of their loss, to recover the maximum sum allowed by the Act. 3. The pursuers having independent means, the siini sued for is excessive. In reinfect lohereof, Thos. Mubray, 64 Duke Street, Edinburgh, Pror. for Defenders. Medical Referees. STATUTOPwY EULES AND ORDEES, 1898 No. 407 MASTEE AND SERVANT, SCOTLAND Workmen's Compensation Act, 1897 Medical Refeeees Regulations, dated May 24, 1898, made by the Seoeetaey of State and the Treasuey as to the Appointment and Payment op Medical Referees in Scotland I, the Eight 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 : — Sched. II. (13). Sched. II. (13). Sched. II. (1). Sched. II. (2). Definitions 1. In these regulations- (i.) "Medical Eeferee " means a legally qualified medical practi- tioner 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 sheriff 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 em- ployer and his workmen, with power to settle matters under the Workmen's Compensation Act, 1897, in the case of the employer and workmen. (iv.) " 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. 140 APPENDIX 141 (v.) " Sheriff" includes " Sheriff-Substitute." Medical Referees. (vi.) " Sheriff-Clerk" includes Sheriff-Clerk Depute for purposes of ordinary sheriff court jurisdiction. (vii.) The words " district in which the case arises " mean the Sched. II. (9). district of the sheriffdom for purposes of ordinary sheriff court jurisdiction 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 Acts of Sederunt. Conditions of Reference 2. Before making any reference, the committee, arbitrator, or sheriff shall be satisfied, after hearing all medical evidence tendered by either side, that such evidence is either conflicting or insufftcient 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 pre- Form A. scribed in the schedule to these regulations, or as near thereto as may be. The reference shall be accompanied by a general statement of the medical evidence given on behalf of the parties ; and if such evidence has been given before a committee or an arbitrator, each medical witness shall sign the statement of his evidence, and may add any necessary explanation or correction. 4r. On making the reference to the medical referee, the committee, arbitrator, or sheriff shall make an order in the form prescribed in the Form B. schedule, directing the injured workman to submit himself for examina- tion by the medical referee. Before making such order, they shall inquire whether he is in a fit condition to travel for the purpose of examination, and if satisfied 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 sheriff is satisfied that the workman 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 clerk of the committee ; if made by an arbitrator, by the arbitrator ; if made by a sherifif, by the sheriff, or by the sheriff-clerk. 6. Where there has been a previous reference in any case, any sub- 142 APPENDIX Medical sequent reference in the same case shall, if possible, be accompanied by Eeferees. the previous report of the medical referee. 7. "Where the reference is made by a committee or arbitrator, it shall be forwarded to the sheriff-clerk. Selection of Medical Referee 8. (1) In the case of a reference by a committee or arbitrator, the medical referee shall be one of those appointed by the Secretary of State for the sheriffdom which includes the district in which the case arises, and shall, except as provided in Regulation 10 — (a) If the sheriffdom has been subdivided and medical referees have been ajjpointed for each subdivision, be one of those appointed for the subdivision which includes the district in which the case arises ; (i) If a rota has been established either for the sheriffdom or for a subdivision of the sheriffdom, be selected in accordance with the rota. (2) In the case of a reference by a sheriff, the medical referee shall be one of those appointed by the Secretary of State for the sheriffdom. 9. It shall be competent for a committee or an 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 Compensation Act, 1897." 10. Where there has been a previous reference in any case, any sub- sequent reference in the same case shall, if possible, be made to the same referee. Duties of Sheriff-Glerh 11. (1) In the case of a reference by a committee or arbitrator, the sheriff-clerk, on receiving the reference — (a) Shall see that the reference is in accordance with these regula- tions, and if it is not shall return it for amendment ; (h) 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 it, and forward it forthwith to the medical referee. (2) In the case of a reference by a sheriff, the sheriff-clerk shall sign (or countersign) it, and forward it forthwith to the medical referee. Form D. 12. The sheriff-clerk 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. APPENDIX 143 1 3. The sheriff-clerk, on receiving a report from a medical referee Medical under Regulation 17, shall forthwith record the same in a separate Eeferees. register to be kept by the sheriff-clerk, file a copy at the court, and transmit the report to the committee, arbitrator, or sheriff by whom the reference was made. If the committee, arbitrator, or sheriff shall direct that the parties be at liberty to inspect the report, the sheriff-clerk shall, on receiving notice of such direction, permit such inspection to be made during office hoiirs, 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. 14. When a medical referee attends under Eegulation 19, the sheriff-clerk shall certify in the record of references which he is required to keep under Eegulation 12, that the attendance was at the special request of the sheriff. Rejpmt of Medical Referee, 15. The medical referee shall not accept any reference unless signed by the sheriff or sheriff-clerk. 16. The medical referee shall, on receipt of a reference duly signed. Form C. appoint a tune 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 sheriff-clerk from whom he received the reference. 18. The committee, arbitrator, or sheriff 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 sheriff 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 examination of the injured workman and written report . . 2 guineas, (ii.) For a further statement under Regulation 18 on 144 APPENDIX Medical any matter not covered by the original refer- Referees. ence ........ 1 guinea. (iii.) For a second or subsequent reference to the same referee in a further arbitration on the same case, to include examination, if necessary, and written report ........ 1 guinea. (iv.) "Where a medical referee attends at the request of the sheriff, for such attendance ... 3 guineas, (v.) AVhere, in order to examine the injured workman or to attend on the sheriff, the medical referee is compelled to travel to a place distant more than two miles from his residence or such other centre as may be prescribed by the Secretary of State, in addition to the above fees — 5s. for each mile distant from such residence or centre. Form E. 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 Eegulation 20 (v.) in respect of an examination of an injured workman, the medical referee, in submitting his quarterly statement under Eegulation 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 Scotland. M. W. ElDLEY, Oyie of Her Majesty's Principal Secretaries of State. W. H. ElSHER, Stanley, Two of the Lords Commissioners of Her Majesty's Treasury. 2ith May 1898. APPENDIX 145 SCHEDULE Medical (Form A) Ref^ees. Reference to a Medical Referee In the matter of the Workmen's Compensation Act, 1897, and In the matter of an Arbitration between — A.B. G. D. Address Description Applicant, and As the case may- be Address Description Respondent. (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 C. D. ; (b) I, , an arbitrator agreed upon by ^. B. and C D. to arbitrate in the matter arising between them under the Workmen's Compensation Act, 1897; .(c) I. > Sheriir {or Sheriff-Substitute), having heard the evidence tendered by both parties, hereby certify that in our (or my) opinion the medical evidence given before us (or me) is conflicting (or insufficient) on a matter which seems to us (or me) to be material to a question arising in the above-mentioned arbitration, and that it is desirable to obtain a report from a medical referee on such matter, as follows : — (a) On the day of , personal injury was (or is alleged to have been) caused to* * Insert name by accident arising out of and in the cotirse of his employment, under ^OTlcmaif the following circumstances : — T f Here state (b) The matter on which we are (or 1 am) satisfied that it is desirable the facts of to obtain a report is- SceSd * " (c) Such matter seems to be material to the following question from the arising in the arbitration, viz. : — evidence. We (or I) therefore appoint j + Tlie name one of the medical referees appointed by the Secretary of State for the ^^Yt "nder purposes of the Workmen's Compensation Act, 1897, to examine the ^g^fgfj*;^ " ^' said § and to report to us blank to be (or me) on the matter specified above. inserted by the A statement of the medical evidence given before us (or me) is appended. § Insert name We are (or I am) satisfied that the said § of injured who is now at , is in a fit condition to travel ^^orkman. for the purpose of being examined, anil he has been directed to attend on the referee for examination at such time and place as shall be fixed by 146 APPENDIX Medical the referee ; or does not appear to be in a fit condition to travel for the Keferees. purpose of being examined. The referee is requested to forward his report to — The Sheriff-Clerk (or Sheriff-Clerk Depute, as the case may be), at on or before the day of Dated this day of (Signed) ** For signa- * * ture of arbitra- or On behalf of the Committee tor, sheriff, or Chairman \ . ^ ■** sheriflF- ^,7 > of Uommittee. }o/< substitute. Clerk Signature of Slieriff-Clerlt. 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 I^otice — That the committee (or arbitrator, or sheriff) have (or has) appointed one of the medical referees under the Workmen's Com- pensation 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 * Strike out referee,* and to attend for that purpose at such time and place as may from "and to ^e fixed by him. attend when injured work- Dated this day of man does not appear to be in rj^o be signed in tlie same manner as reference.) a fit condition to travel. (Form C) Notice by Medical Referee to injured Workman Workmen'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'cloclc. (Signed) Medical Referee. APPENDIX ' 147 Sheriffdom (Form D) Record of Reference to he kept by Sheriff-Clerk . District . !N"ame of Sheriff-Clerk For quarter ended Medical Referees. Number of Refer- ence. Names of Parties. Work- V 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. of t Here say whether committee, arbitrator, or sheriff. I hereby certify that the medical referee attended at , on Endorsement , with respect to reference l!^o. , at the special request ^ ^ ^^^ ^^ back of form. (Form E) Medical Referee^s Statement of Fees Names of Parties. Date on which Reference received. Sheriff- Clerk from whom received. Date and Place of Examina- tion. Date on which Report sent. Date of Attend- ance, if any, on Sheriff. Amount of Fees under each of the head)ng:s in Regu- lation 20. S5 (i.) (ii.) £s.d. (iii.) (iv.) (V.) 1. 2, A. B. and C. D. E. F. and G. H. 10 July 1898. 6 Sept. 1898. £s. d. £s. d. £s.d. £s.d. Total, 1 1 hereby certify that I examined the applicant on , at , which is distant residence or prescribed centre. (Signed) . £ s. d. t Endorsement miles from my to be made on back of state- ment. mDEX For list of Employments included, see pp. 44-52 "About"— meaning of ....... . question of fact ....... Absence, question of indemnity settled in, A. of S., sec. 3 Accident — meaning of .... . locus of, fixing /orwm, 2nd Sch. (9), A. of S., sec. 4 notice of, under Factory Acts Act of Sederunt — may regulate procedure generally, 2nd Sch. (10) text of ..... . Action- competent where notice omitted turned into proceedings under Act, sec. 1 (4) exercise of option .... See Arbitration. Actual use and occupation Agent — appearance of law .... lien on costs, 2nd Sch. (12) occupying machinery by, Factory Act, 1895 Agreement — of service ...... form of, immaterial, sec. 7 (2) . questions may be settled by, sec. 1 (3), 1st Sch. (1) (a (5), (6), (12), (13); 2nd Sch. (8), (14) Ague from working in brass Air, factory may be in open Air, hot or compressed, mechanical power Alteration, engineering work, sec. 7 (2) . Altering article, Factory Act, 1878 . Alternative Claimants under Act . 28 . 101 103, 128 11 98, 129 33, 34, 123 117 128 95 95 75 23 98 117 24, 127 53 53 ) (ii.), 59-62 11 120 29 39 119 59 149 ISO INDEX Amount of Compensation — First Schedule (1) 63-72 settled by arbitration, sec. 1 (3) ; 1st Sch. (5) . . . 96 Ancillary — meaning of, sec. 4 . . . . . , . . 81 to engineering work ........ 40 Annuity — value of injured workman's life ...... 104 purchase of, 1st Sch. (8) ...... . 115 Appearance — of parties, 2nd Sch. (14) (c), A. of S., sec. 1 ... 98 by party liable in indemnity ..... 98, 105 Application — of Act referred to arbitration . . . . . . 96 to review or redeem, procedure in, A. of S., sec. 5 . 100, 129 in Court other than original . . . . . .100 "by or behalf of employer," 1st Sch. (13) . . . .105 Appointment of medical practitioner, 2nd Sch. (13) . . . 118 Apprentice, tuition not earnings ...... 66 Apprenticeship, agreement of, sec. 7 (2) 53 Arbitration — questions to be settled by, sec. 1 (3), 1st Sch. (1) (5) . . 96 reference within six months, sec. 2 (1) . . . . 94, 95 by agreement ......... 97 failing agreement, 2nd Sch. (2) .... 97,116 before sheriff, 2nd Sch. (14) (c) 97 turning action into, sec. 1 (4) . ... 75, 95 on question of iudemnity . . . . . .103 fees of clerk in, A. of S., sec. 6 . . . . 97, 129 Arbitrator — agreed on, powers of . . . . . . . . 97 agreed on, no review of ...... . 103 sheriff as, 2nd Sch. (14) 97 fees of, agreed on .... . . . 97 finding as to damages due by contractor . . . . 96 "Arising out of the Employment," sec. 1 (1) . 12 "As soon as Practicable," sec. 2 (1) 90 Ascendant, title to sue 7, 56 Assessing, damages under, sec. 4 ...... 96 Assignation — of claim to funeral expenses ...... 59 of rights of person indemnified . . . . . .105 For list of Employments included, see pp. 44-62 INDEX 151 Assignee, suing for indemnity as ... . Association of Employers, mutual insurance " Attributable to " misconduct .... Authentication of memorandum of award, A. of S., sec Average Weekly Earnings, 1st Scli. (1) (a) (i.) Award — of, agreed on, arbitrator ..... memorandum of, to be recorded, 2nd Sch. (8) (14) (<;) reduction of ...... . validity of, in question of indemnity . withholding, to secure fee ..... extract of, in subsequent proceedings, A. of S., sec. 8 Bakehouses, Factory Act, 1878 Baker's Store, retail .... Bankruptcy of insured employer, sec. 5 (1) (2) Bar- in respect of defective notice, sec. 2 (1) dependant not appearing after intimation serious and wilful misconduct Barge, employment in Bastard and parent, no title to sue Beer, bottling .... Benefit accruing through death Blast Furnaces, Factory Act, 1878 Bleaching and Dyeing Works, Factory Act, 1878 Boat, railway or canal Bondholder in possession of mine Bookbinding Works, Factory Act, 1878 Brass working causing ague Building — defined, sec. 7 (1) (2) employment at . thirty feet high mechanical power at . undertakers, sec. 7 (2) contractor and undertaker injured by third party at Burial Expenses, 7 (2), 1st Sch. (1) (a) (iii.) Business — of undertaker, part of, sec. 4 does not define employment 7(a) PAGE 83 89 21 97, 130 64 97 100 103 103 97 130 122 36 89, 110, 111 90 98 19 32 7, 57 45 68 121 121 29 25 122 11 36, 40-43 36,43 40 43 25,78 77 83 59, 61, 69 81 . 27,82 For list of Employments included, see pp. 44-52. 152 INDEX Campbell's Act ....•• Canal — not included in " railway "... construction and repair of, sec. 7 (2) . Cargo, loading and unloading .... Carter, where included ..... Carting Contractor, involving employer in liability Cartridge Works, Factory Act, 1878 Case stated — review on question of law, 2nd Sch. (14) (c) to be in form in Schedule B, A. of S., sec. 9 (c) procedure in, A. of S., sec. 9 not competent in arbitration by agreement Certificate — under sec. 1 (4), recording of . extract of, A. of S., sec. 8 of medical practitioner, 1st Sch. (11) by Registrar of Friendly Societies, sec. 3 by Court after dismissing action, sec. 1 (4) Certified copy of sheriff's judgment, recording A. of S. Children, title to claim .... Civil Liability of employer, sec. 1 (2) (6) . Claim — what is ..... . to be made within six months, sec. 2(1) option of, under Act, or at law, sec. 1 (2) (6), Clay Pit, quarry Clerk appearing in arbitration, expenses of, A Coal Mine defined, sec. 7 (2) . Coal Mines Act, imdertakers, sec. 7 (2) . Collaterals, no title to sue Commencement of Act, sec. 10 (1) . Committee of employer and workmen, 2nd Sch Common Employment .... Common Law — apparently altered by sec. 4, 6 . not otherwise altered by Act Common Work Compensation — for all injuries ... after first two weeks .... amount of ..... of S. (1) I-AGK 56, 63, 67 29 38 . 24, 33 27, 28, 82 82 . 121 100, 118 131, 133 . 130 . 103 . 130 130 100 88, 109 5, 108, 130 r (&) 130 56 73 59, 62 sec. 1 94 94 74,75 38 128 38 24 57 113 116 2,4 79, 84 7, 73 3 55 63-72 For list of Employments included, see pp. 44-62. INDEX 153 Compensation- amount of ...... proportionate to injury .... amount of, settled by arbitration, sec. 1 (3) division among dependants, 1st Sch. (-5) does not include solatium .... to whom payable ..... fine imputed towards, sec. 1 (2) (5) . application for, in action of damages, sec. 1 (4) payment of discharges claims Complaint to Eegistrar of Friendly Societies, sec. 3 Consent, validity of award made of, A. of S., sec. 3 Construction — of statute. Parliamentary speeches rubric ..... of building, undertaker, sec. 7 (2) machinery at ..... . of railroad, harbour, dock, canal, or sewer, sec. 7 Contract^ right to found on breach of ancillary, sec. 4 Contract of Service, expiry of, sec. 9 Contracting-Out, sec. 3 . Contractor — liability of undertaker for, sec. 4 not a workman .... and undertaker, when both liable in mine, not occupier Contribution among wrong-doers Contributory Negligence . not misconduct . Copper Mills, Factory Act, 1878 Coprolite, quarry Copying Charges — clerk to arbitrator, A. of S., sec. 6 Sheriff-Clerk, A. of S., sec. 7 (a) Corporation, where employer, sec. 2 (5) . Costs — deducted from compensation, sec. 1 (4) of arbitration, 2nd Sch. (6) agent's lien for, 2nd Sch. (12) . See Expenses. (4) 81, 1 63-72 67 96 69 63,71 53 75 76, 95 59, 75 109 03, 104 (2) 53, 83 25 36 38 86 81 89, 113 89 76-79 54 77 25 86 4 19 121 38 129 130 26 95 117 117 For list of Employments inchided, see pp. 44-52. '54 INDEX Counsel, appearance of, in proceedings, A. of S., sec. 1 (a) 98, 128 County Court Judge means Sheriff, 2nd Sell. (14) (a) . . 118 Course of Employment, accident in, sec. 1 (1) ■ • • • 12-19 Court of Session, final on question of law, 2nd Sch. (14) (c) • 102, 118 Crane on quay, employment at . . . . . . . 33 Crew of ship unloading 33 Crown, as employer, sec. 8 (1) 43, 113 Curtilage of factory 119 Damages under Employers' Liabihty Act ..... 3 employer's liability in 73 distinguished from compensation ..... 79 liability of undertaker for contractor, sec. 4 . . . 77, 79 compensation claimed in action of, sec. 1 (4) . . . 75, 95 Danger, defence of seen 5,15,21 Date omitted from notice ..... . . 93 Deafness, not caused by " accident " 11 Death — compensation for, 1st Sch. (1) (a) (i.) .... 63 benefit accruing through ....... 68 Deduction — from compensation of weekly payments, 1st Sch. (1) (a) (i.) of fine ...... of earnings from weekly payment, 1st Sch, of expenses of action of damages, sec. 1 (4) Default of servant, sec. 1 (2) (6) Defect in notice, sec. 2 (1) Defences — common law ..... under Act ..... prejudice to, by defective notice, sec. 2 (1) in summary proceedings forms of . Defenders, dependants to be called as, A. of S., Demolition of buildings, sec. 7 . Dependants, sec. 7 (2), included in " workman ' defined, sec. 7 (2) (a) title of diiferent kinds of . partially dependent .... to be set forth in petition, A. of S., sec. 2 intimation to, and non-appearance of . division of compensation among (2) sec. 64 75 70 76, 95 73 90-94 2-7 9 90-92 97 136-139 98, 128 25, 40, 43 56 56 . 59-61 58 98, 129 98 . 5, 69 For list of Employments included, see pp. 44-52. INDEX 155 PAGE Dependence, what is . 57, 58 Descendant, title to sue . 7, 57 Diligence— may follow on recorded award, 2nd Sch. (8) (14) (fe) . 118 may not attach weekly payment, 1st Sch. (14) . . 115 Disablement 55, 101 Discharge, by dependant . 59-61 Disfigurement, claim for 71 District — in which parties reside, 2nd Sch. (9) . 98, 117 of claimant's residence and recording award. 2nd Sch. (8) . 117 Dock, Wharf, Quay, and Warehouse, Act of 1895 . 29-36, 123 Dock- employment at, sec. 7 (2) . 30, 44 construction and repair of dock, sec. 7 (2) . 38 occupier of 23 railway .... . . 28 ship in ... ... 31-34, 36 dry 33 Dockowner, liability for defective plant . 84 Drugs, expense of medical attendance 69 Drunk, misconduct 19 Dwelling — Factory Act, 1878 . 120 amended by Act of 1891 to " sleeping " 30 Earnings — past, 1st Sch. (1) (a) (i.) ; (6) (2) . . . 64-66, 69 test of sub-contractor or workman 54 after injury, 1st Sch. (2) . . 70 Earthenware Works — Factory Act, 1878 . 121 china, Act of 1891, sec. 38 ... . . 121 Election, compensation or damages . . . . I )9-62, 74, 75 Electricity, mechanical power . . . . . 30, 47 Emergency, workman's duty in .... . 14, 15 Employer — definition of .... . . 22, 77 liability of ... . . . . 73-89 as occupier of quay, etc. . . 23, 24, 31 corporation, sec. 7 (2) 26 For list of Employments included, see pp. 44-52. 156 INDEX Employer — deceased, legal representative of right to relief when negligent . application of Act to . bankruptcy of, sec. 5 (1) (2) Employers' Liability at common law Employers' Liability Act — defence of common employment unaffected Employers' Representative, expenses of, A. of S., sec. 1 Employment — " the," meaning of, . defined, sec. 7 . arising out of . in course of . . . contract of . . . earnings during period of . Engineer, marine, as sub-contractor, sec. 4 Engineering Work — defined, sec. 7 (2) . undertaker of, sec. 7 (2) . sewer, accident in employment at Eimdo, morando, redeundo .... Evidence — when inconclusive, remit to medical practitioner report under 1st Sch. (11) is conclusive report under 2nd Sch. (13) is not conclusive Examination, medical, 1st Sch. (3) (11) . Execution, recording for, 2nd Sch. (8) (14) (6) . Executor — representative ....... represents dependants, 1st Sell. (4) . Expenses — of person appearing, 2nd Sch. (6), A. of S., sec. 1 imder 2nd Sch. (12), application concerning, A. of S, of arbitration, scale of, A. of S., sec. 6 of arbitration by agreement .... of case stated, A. of S., sec. 9 (a) of medical attendance, 1st Sch. (1) {a) (iii.) of State-appointed medical referee of unsuccessful action, sec. 1 (4) deducted from compensation, sec. 1 (4) 26 86 22-26, 76 89, 110, 111 7 3 73, 74 128 13, 14 27-43 12 14-19 53-55 -66, 69 81 64- (5) 38-40 25 13 17 99 100 99 100 118 56 60, 61 117, 129 . 129 129 97 130 . 59, 61 99 75 . 76, 95 For list of Employments included, see pp. 44-52, INDEX '57 Expenses — claim of indemnity for ....... 80 to pursuer from one liable in indemnity, A. of S., sec. 3 . 128 Extract of memorandum, etc., A. of S., sec. 8 . . . . 130 Fact, decision on ...... . Factory — what is, sec. 7 (2) . . . 29- undertaker defined . belonging to Crown included railway works .... fire in .... . Factory and Workshop Act, 1878, excerpt from Factory and Workshop Act, 1895, sec. 23, sec. 7 (2) Factory Acts, application of, sec. 7 (2) . Family — member of, may appear, A. of S., sec. 1 (d) See Dependants. Farmer, in respect of threshing for sale Fatal Accidents Act, Lord Campbell's Fault — ground of common law liability . ground of indemnity .... Fees — to counsel and agent only, A. of S., sec. 1 medical practitioner .... to Sheriff-Clerk for preparing case stated, A. of S., sec, of Court, none payable prior to award, 2nd Sch. (11) of arbitrator's clerk, A. of S., sec. 6 . Fellow-Servant, defence of . . . Fencing machinery, application of Factory Acts Ferry-boat, not part of " railway " . Final- decision of Court of Session on law, 2nd Sch. (14) (o) decision of sheriff on facts, 2nd Sch. (14) (c) judgment on refusal to state case, A. of S., sec. 9 (7t) . Fine, liability to and application of, unaffected, sec. 1 (2) (5) Finishing, a factory process ...... Fire— " arising out of employment " ..... in match or gunpowder factory or mine 100-102 37, 38, 44, 119 23 43 29 13 119 123 29, 30-36, 44, 82 98, 128 47 56, 63, 67 80, 1-9 83-88 128 99, 100, 143 9 (a) 130 . 117 97, 129 2-5 34, 36 29 102 100 131 75 119 12 13 For list of Employments incladed, see pp. 44-52. 158 INDEX PA8E Flax Scutch Mills, Factory Act, 1878 . . . 122 Flywheel, not mechanical power ..... 30 Form — of memorandum under 2nd Sch. (8) . . 132 of stated case ..... . . . 133 of note for order to state case ... . 133 of petition in Sheriff Court . . . . . 134 of defences ... . . 136-139 of reference to medical referee ..... . 145 of order to submit to examination 146 of notice by referee to workman . 146 of record of reference ...... . 147 of medical referee's statement of fees .... . 147 of notice of accident 93, 135 Forum, circumstances determining, 2nd Sch. (9) 98 Foundries, Factory Act, 1878 . 121 Friendly Societies Act, 1896, Scheme unaffected, 1st Sch. (1 5). 115 Fustian Cutting Works, Factory Act, 1878 . . 121 Gain, meaning of, under Factory Acts .... 29 Gas, mechanical j)ower 29 Genuineness of memorandum, 2nd Sch. (8) . . . . 130 German Scheme of compensation ... . 8 Glass Works, Factory Act, 1878 ... . 122 Grades of workmen 53 Grand-parents and children, title of 56 Gravel Pit, quarry 38 Grocer's Eetail Store, not a warehouse .... 36 Gunpowder Factory, fire in 13 Harbour — construction and repair of, sec. 7 (2) . 38 employment at dredgiug . 27, 40 Hat Works, Factory Act, 1878 122 Height of building, sec. 7 (2) . 40, 41 Hiring, contracting out in contract of, sec. 3 (3) 89 Hopper, employment on . 27, 40 Horse — stopping runaway, in course of duty .... 15 not mechanical power ...... 30 House of Lords, no appeal to . 102 Husband, title to sue . 7,57 For list of Employnients included, see pp. 44-52. INDEX 159 " In course of the Employment " . Inaccuracy in notice, sec. 2 (1) . Incapacity, 1st Sch. (1) (&) Incidental — to trade or business, sec. 4 . . . different meaning in Factory Acts Indemnity — recoverable from contractor, sec. 4 . . claim against stranger, sec. 6 . . . questions of, not referred to arbitrator procedure in recovering, A. of S., sec. 3 intimation to person liable in, A. of S., sec. 3 question may be referred .... person paying, entitled to rights of indemnified not partial relief ..... India-rubber Works, Factory Act, 1878 Injury — origin of, sec. 1 (1) . defined, sec. 1 (2) (a) .... gives right to compensation compensation proportionate to, 1st Sch. (1) (a) (iii.) Inquiry, not excluded by want of notice . Insurance — in employer's option .... deduction from compensation bankrupt employer, sec. 5 (1) Insurer, assignation of rights if insured Interest, parties with an . Intimation— claim of indemnity .... of action to dependants in connection with iademnity . redemption of weekly payment . See Parties Interested. Investment of compensation, 1st Sch. (6)-(10) (13) Iron Mills, Factory Act, 1878 . PAGE 12, 14, 16, 20 . 90-94 . 69-72 81 119 . 8C », 88 83 96 103, 128 98, 103 102 105 80 122 11 55 8 67 91 9 68 89, 110, 111 105 98 80 98, 128 98, 103 104 . 114, 115 121 Joiner — as sub-contractor injured at building . contractor or undertaker 25 26 78 For list of Employments included, see [ip. 44-52. i6o INDEX PAGE Judgment — treated as memorandum, A. of S., sec. 7 ip) . 130 to be ill writing, Act of 1876, sec, 52 . 134 of sheriff on fact, final ..... . 100 of Court of Session on law .... . 102 Jurisdiction — of arbitrator ....... 96 workman to record in Court of his own . 100 of Appeal Courts when ousted .... . 102 Lace Warehouse, Factory Act, 1878 . 122 Ladder, not scaffolding ...... 41 Laundry — when a factory, sec. 7 (2) 37 undertaker defined 23 Law — decision on ...... . 100-102 agent may appear in proceedings, A. of S., 1 (a) . 98 Legal Liability — in both employer and third party 86 of third party, circumstances creating 84 of stranger, sec. 6 ..... . 83 Legal Personal Representative, sec. 7 (2) 56 Lessee of coal mine ....... 24 Letterpress Printing Works, Factory Act, 1878 . 122 Liability — imposed by Act 75 referred to arbitration ..... 96 of third party, sec. 6 . 83 Lien on costs, 2nd Sch. (12) . 117 Lighters, employment in 32 Light Railway defined, sec. 7 (2) ... . 23, 28 Liquidator of employer company 89 Loading and Unloading at dock, etc. . 23, 30 Locality — governs application of Act . 27, 31, 33 exception under sec. 4 82 Locus of accident and fm'um .... 98 Lord Campbell's Act .... 56 solatium ..... . 57, 63 compensation proportionate to injury . 67 B'or list of Emi)loynients included, see pp. 44-52. INDEX i6i Loss, patrimonial, title to sue .... PA9E 7 Lucifer Match Works, Factory Act, 1878 . . 121 Machinery — Factory Act, 1895, fencing of . . 34, 36, 123 employment at . . . 30 on quay, etc., sec. 7 (2), occupier of . 24 used at engineering work .... 38 used at building, sec. 7 (1) . 36, 43 supplied, liability for . . 84 Manager — of mine, a workman ..... 53 appearing in proceedings, expenses of, A. of S. , sec. 1 . .128 Manual Labour — , immaterial in defining workman, sec. 7 (2) . 53 Factory Act, 1878 29, 119 Marine Engineer, liability of shipbuilder for 81 Mason — application of Act to workman . 22 injured at building . 26 as undertaker 25, 78 Mechanical Power — what constitutes, sec. 7 (1) . 29, 30 dock, wharf, quay, warehouse . 29 at engineering work ..... 39 used on building, sec. 7 (1) 36, 43 constituting factory . ... . 29, 44 Medical Attendance — drugs, wines ...... 69 claim for, sec. 7 (2), 1st Sch. (1) (a) (iii.) . . 59, 61 Medical Examination after notice of accident. 1st Sch. (3) (11) • 114, 115 Medical Practitioner — report of, 1st Sch. (11) ; 2nd Sch. (13) . 99 remit to, 2nd Sch. (13) . 99 by whom fees payable .... 99 Medical Beferee — rules and orders anent .... 140-147 selection of 142 duties of Sheriff-Clerk in reference . 142 attendance of referee . 143 mode and form of reference 141 For -list of Employments included, see pp. 44-52. 1 62 INDEX Medical Referee — report of . • • 1^1' ^^^ fees of, scale . • • .143 Memorandum — of Award, to be recorded, 2nd Sch. (8) (13) (6) . . 100 of sheriff's determination to be registered, A. of S., sec. 7 100, 130 under 2nd Sch. (8), requisites of, A. of S., sec. 7 (a) 130 of, under 2nd Sch. (8), form of . . . . . 132 Menial Servants not under Employers' Liability Act . 3 Metal and India-rubber Works, Factory Act, 1878 . 122 Metalliferous Mine, sec. 7 (2) . . • 24, 38 Military Service of Crown, sec. 8 (1) 43 Mine — defined, sec. 7 (2) ... 37 undertakers defined as owner, sec. 7 (2) . 24 breach of rule of . . . ■ 16, 19) "0 misconduct causing accident in . 19 Minerals, quarrying . . °3 Miners, course of employment .... 15-19 Minute, when application competent by, A. of S., sec. 5 . . 100 Misconduct, wilful and serious, sec. 1 (2) (c) . 19, 102 Mistake, notice defective through, sec. 2 (1) . . . 90-92 Money equivalents 66 1-7 Month means calendar . . .95 Naval Service of Crown, sec. 8 (1) 43 " Near," sec. 7 (3) . . 37 Negligence — ground of common law liability .... personal liability for, unchanged, sec. 1 (2) (6) . . 73 is not misconduct . . . 20 Note for order to state case, form . . 133 Notice — of accident, sec. 2 (1) . . ... 90-94 form of . . . ... . 135 of claim of indemnity, A. of S., sec. 3 . 80, 104, 128 of proceeding with case stated, A. of S., sec. 9 (e) . . 130 Occupier — of factory, quarry, or laundry, sec. 7 (2) . . . . 23 of dock, etc.. Factory Act, 1895 . 123 of mine . . . . . .24 For list of Employments included, see pp. 44-52. INDEX 163 PAOK Occupier — of machinery 24 of plant 31 On, in, or about — meaning of, sec. 7 (1) 27 a building 22, 36, 40, 43 a harbour . 27 a factory- 27 railway carting 82 Onus — proof of contributory negligence ... 5 ,, arising out of employment 19 ,, serious and wilful misconduct 19 „ dependence . 58 in case of defective notice . 92 Option — compensation or damages, sec. 1 (2) (&), 6 . 59-62, 74, 75 proceedings against employer or third party 83 Order, non-observance of . 16, 19, 20 Ornamenting, article, Factory Act, 1878 . 119 Overseer of factory, a workman 53 Packing not a factory process . 45 Painter engaged at building 42 Painting, not repair . 39, 42 Paper Mills, Factory Act, 1878 122 Paper Staining Works, Factory Act, 1878 . 121 Parents, title to claim . 56, 58 Parochial Relief 58 Part of, or process in, trade or business, sec. 4 . 81 Partially Dependent, 1st Sch. (1) (a) (ii.) 58 Parties — " interested " . . 98 interested may record award, 2nd Sch. (8) . 117 to get notice of appeal, A. of S., sec. 9 (e) . . 130 Partner not a workman . 53 Patrimonial Loss .... 57 Percussion-cap Works, Factory Act, 1878 . 121 Period of Emplojrment, 1st Sch. (1) (a) (i.) . 64-66 Personal Negligence, sec. 1 (2) (6) . 73 Fcir list of Employments included, see pp. 44-52. 1 64 INDEX Petition — under Act of 1876, form of ... . to set forth names of dependants, A. of S., sec. 2 to be intimated to other dependants, A. of S., sec. 2 when minute cannot be used Pit Banks, Factory Act, 1878 .... Place, employments deiined by . . Plant — sec. 7 (2), on quay, etc. .... Factory Act, 1895 . Plumber — as sub-contractor or undertaker .... repairing building ...... Poisoning not " accident " Post Office Savings Bank, sec. 5 (1), 1st Sch. (7) (10) Preferentially entitled, sec. 5 (1) (2) Prejudiced by defective notice, 'sec. 2 (1) Premises, within factory ...... Print Works, Factory Act, 1878 . Printing of Case stated, regulations, A. of S., sec. 9 (/) Procedure Proceedings — sec. 1 (2) (6) conditions as to taking ..... subsequent, in different Courts, A. of S., sec. 8 . Process — transmission of, in Case stated, A. of S., sec. 9 (/) in trade or business, sec. 4 . . . . Proof, convenient /orM?;i for .... . See Onus. Proportionate to injury ...... Proprietor — of mine ........ of building Purposes, meaning of, in Factory Acts . 134 98, 128 128 . 100 122 27, 31, 33, 82 . 30, 31 . 123 25 42 11 111 89, 110, 111 . 90-92 30 122 131 90-105 75 90 130 131 81 99 57, 67 24 26 47 Quarry — definition of, sec. 7 (2) Factory Act, 1878 . undertaker going to work in 38 122 23 17 For list of Employments included, see pp. 44-52. INDEX 165 Quay — employment at, sec. 7 (2) . Factory Act, 1895 occupier of, is undertaker . ship loading at Questions — to be settled by arbitration, sec. of law, review on 1 (3), 1st Sch. (5) Railroad, construction and repair of, sec. 7 (2) Railway — defined, sec. 7 (2) . course of employment servant off duty .... Railway Company — definition of . . . liability for carting contractor business of .... . liability at law for defective trucks . Reasonable cause, excuse for defective notice Reasonable excuse, construction of . Reasonable and proportionate, 1st Sch. (1) (a) (ii.) Receipt of notice, proof Recording — award, 2nd Sch. (8) (13) (6) . of memorandum under 2nd Sch. (8), A. of S., sec. 7 . of certificate under sec. 4 (1), A. of S., sec. 7 (6) agreement in proper form for . . . . Redemption of weekly payment — 1st Sch. (13) ... intimation of proposed .... and review, application by minute procedure in, A. of S., sec. 5 . . . . Reduction of award .... Reference — to arbitration, which see, sec. 1 (3) of question of indemnity ... to medical man, conditions of . . . Refusal — of sheriff to state a case, A. of S., sec. (9) (/i) note to Court of Session thereon .... to submit to medical examination under 1st Sch. (3) (11) . 23, 30 123 23 24 96 100 39 28 . 16, 17 18 23 82 82 85 90 92 67 93 . 100 100, 130 100 61 71 98, 103 . 100 129 103 96 96-98 99 . 131 . 131 99 For list of Employments included, see pp. 44-52. 1 66 INDEX Register, special entry of Sheriff's determination in, A. of S., sec. 5 Begistered Letter, notice served by, sec. 2 (4) . Registrar — of Friendly Societies, sec. 3, sec. 8 (2) of the County Court means Sheriff-Clerk, 1st Sell. (16) Regulation of Railways Act, 1872, sec. 7 (2) . Relief, conditions determining right to See Indemnity. Remit — from one Sheriff Court to another, A. of S., sec. 4 to medical practitioner, 2nd Sch. (13) of Case stated, for amendment, A. of S., sec. 9 ((7) for further procedure, 2nd Sch. (14) (c) Repair — of building, sec. 7 (1) (2) . of bulling, undertaker .... of railroad, harbour, dock, canal, or sewer, sec. 7 (2) Report, medical practitioner, 1st Sch. (11), 2nd Sch. (13) . Residence of parties determining forum, 2nd Sch. (9) Review — of weekly payments, 1st Sch. (12) intimation to those interested . of Sheriff's decision . of agreed-on arbitrator Risk, volenti non fit injuria Road-making, engineering work Rope Works, Factory Act, 1878 Royalty, receiver of, not undertaker Rubric not part of Act ...... Rules, breach of . . ... Rules of Court means Act of Sederunt, 2nd Sch. (14) («) . Sailor on ship in dock Sale, "purpose" under Factory Act, 1878 Sand Pit, quarry .... Savings Bank, Post Oface — payment into, sec. 5 (1) 1st Sch. (7)-(10) Scaffolding — what is . . . . . accidents arising from at building over thirty feet high .... For list of Employments included, see pp. 44-52. 5 129 93 109, 113 116 , 23 83-89 99, 129 99 101. 131 118 40-42 25 39 99, 100 98 71 98 100- -102 103 .5 40 122 25 83 6, 1£ f, 20 118 31 47 38, 121 110 111 41 2(: 1, 78 . 41 ,43 INDEX 167 PAGE " Scale," part of Act .53 Scale of Compensation — 1st Sch. (1) 113 of medical fees ........ 143 Scheme — in lieu of Act, sec. 3 88 unaffected by Friendly Societies Act, 1st Sch. (15) 115 Seamen- definition of . ■ . . . . . . . . 33 not under Employers' Liability Act .... 3 wliether under present Act .... 31-34 Secretary of State — appoints medical practitioner, 2nd Sch. (13) . 118 rules and orders by ... . 140 Security for compensation . . . 9, 89 Seen Danger, defence of 5, 15, 21 Selection of Medical Referee ... . . 142 Servant, liability for, at law . . .2 Service, agreement of, sec. 7 (2) . . . 53 Service of Notice, sec. 2 (3) (4) (5) . . . .93 Settlement — by agreement ...... . . 59-62 effect on claim of indemnity . . . 80, 81, 104 protected by A. of S. . . 128 Sewer — construction or repair, sec. 7 (2) . . .39 accident arising out of employment at . . . 12 Shaft, contractor for sinking .... . . 25 Sheriff— as arbitrator, 2nd Sch. (14) (c) . . . . . 97 may remit to medical practitioner, 2nd Sch. (13) . 99 award of, to be recorded .... . . 100 review of decision of, 2nd Sch. (14) (c) . . . .100 equivalent to County Court Judge, 2nd Sch. (14) (a) . 118 may remit to another Court, A. of S., sec. 3 . .128 judgment in writing, Act of 1876, sec. 52 . . .134 to settle terms of Case stated, A. of S., sec. 9 (e) . . 130 Sheriff-Clerk— fee for preparing Case stated, A. of S., sec. 9 (a) . . 130 investment in name of, sec. 5 (1) . . . . . Ill duties of, in medical reference . . . . . .142 equivalent to registrar of County Court, 1st Sch. (16) . 116 For list of Employments included, see pp. 44-.'i2. t68 INDEX Sheriff Court— 2nd Sch. (14) (c) transference from one to another .... judgment, award enforceable as, 2nd Sch. (8), (14) (J) Sheriff Courts Act, 1876— 2nd Sch. (14) (c) sec. 52, text of ...... applies to redemption and review, A. of S., sec. 5 Ship- definition of .... . loading and discharging belonging to railway, in dock or at quay .... Shipbuilding, part of, or process in, business of Shipbuilding Yard — employment in, sec. 7 (2) . in vessel near, sec. 7 (3) . Factory Act, 1878 . Shop- not a warehouse .... servants not under Employers' Liability Act Sick Fund, German scheme Sickness distinguished from accident Siding — railway . .... in mine ....... Sist— failure of dependant to ... . to allow dependants to appear, A. of S., sec. 2 Slate quarry .... Slater — sub-contractor or workman as undertaker or sub-contractor . repairing building .... Sleeping-room in factory . ... Solatium— title to sue for . no claim for, sec. 7 (2) (&) ... Stable, employment at railway .... Stated Case. See Case Stated. 97, 118 99 . 100 97 . 134 . 129 33 . 24, 31 29 31-34 81 . 32,33 36 122 35 3 8 11 28 38 98 128 38 55 25 . 42, 81 30, 120 . 7, 56 63 29 For list of Employments included, see jip. 44-52. INDEX 169 PAGE Station — railway employment at ... . 28 loading at ...... 82 Statute — construction, Parliamentary speeches . 7 rubric not part of . .53, 83 Statutory Regulation and misconduct 19 Steam, mechanical power, sec. 7 (1) . 29 Steam-roller and repair of road 40 Steamer, employment on railway • . . . 29 Step-parent and child, title of . . 56, 57 Stevedores — dock employment . ... . 24, 30-34 liability of . . . . . 24, 86 Stoker on ship in dock . . 31 Stone quarry 38 Store, may not be warehouse .... 35 Stranger, liability for, sec. 6 . . . . 83 Sub-contractor— building, sees. 4, 7 . 25, 26 not a workman ..... . 54, 78 undertaker's liability for, sec. 4 . 76 Summarily, applications for review to be tried, A. f S., sec. 5 . 129 Summary Procedure, 2nd Sch. (14) (c) 97, 134 Superannuation Act, sec. 8 (2) 113 Support contributed by deceased 58 Tenement Factory 24 business of occupier . ... 81 Terms of Notice 92 Textile and Non-Textile, distinction immaterial 29 Textile Factory defined . ... . 119 Third Party, liability for .... 82 Time- employment outwith working hours . . 17-19 broken, computation of earnings 66 computation of 95 limit in application, under sec. 1 (4) . 95 for giving notice, sec. 2 (1) 90 for raising claim, peremptory 94 For list of Emj)loyments included, see jjp. 44-52. I70 INDEX 98 128 122 Time — appointed in interlocutor ordering intimation loss of, expenses allowed for, in proceedings, A. of S., sec. Title- to sue for damages under Act to claim .... . . . 57- Tobacco Factories, Act of 1878 Tort-feasors, relief among Trade, Factory Act, 1878 ... . . 119 Trade or Business, sec 4 . . . .81 Traffic, railway . . . . . 28 Tramways in mine ....... 38 Transfer, power of sheriff to, 2nd Sch. (9), A. of S., sec. 4 98, 129 Travelling expenses of person appearing, A. of S., sec. 1 . 128 Treasury pays State-appointed medical referee only . 99 Trial of application, 2nd Sch. (14) (c) ... 118 Trustee, bankrupt employer .... 89 Underground Workings, mine Undertaker — defined, sec. 7 (2) . railway ... factory ...... dock, wharf, etc. mine engineering work building ..... means " employer " . means tradesman, not his employer where more than one liable for contractor, sec. 4 expenses due to funeral intimation of petition by, A. of S., sec. 1 when entitled to indemnity Use of dock, etc., Factory Act, 1895 38 22-26 23 23 24 24 25 25 22 26 . 23, 25 76, 79, 96 59,69 . 128 80 123 Vessel, injury received on, sec. 7 (2) Volenti non fit injuria . Volunteer, as defence, under Act 31-34 5 14, 15 For list of Employments included, see pji. 44-52. INDEX 171 Wages — evidence of employment . .... 55 ability to earn full ........ 55 See Earnings. Want of notice, sec. 2 (1) . . . . . 90 Warehouse — definition of . ... ... 35 occupier of, is undertaker .... 23 employment at, sec. 7 (2) ..... 30 Factory Act, 1895 123 Warrant, special, to record memorandum, A. of S., sec. 7 (a) . 130 Water, mechanical power, sec. 7 (1) . . . . 29, 119 Weekly Payment — deducted from compensation un death . . .64 computation of . ... ... 70 redemption of, 1st Sch. (13) . . . . 71 to disabled workman, 1st Sch. (1) (6) . • • 69, 99 undertaker's liability for, under sec. 4 . . 96 intimation of proposed review or redemption . . 98 application for review by minute . 100 redemption, indemnity, intimation . 98, 103 review of, 1st Sch. (12) . . .71 not assignable, l.st Sch. (14) . . . .115 review and redemption, procedure, A. of S., sec. 5 129 settlement by agreement ... .61 Weeks, meaning of, sec. 1 (2) (a) . 56 Wharf- employment at, sec. 7 (2) . 30, 34 occupier of, is undertaker . .23 Factory Act, 1895 . . . .123 employment at railway . . ... 28 White Lead Factory 30 Whitelead poisoning, not accident . .11 Wife, title to sue . . • ■ 7, 57 Wilful Act of employer or servant, sec. 1 (2) ih), 4 . 73, 76 Wind, mechanical power . . . . 29 Witness — medical referee is not . .99 residence of, a reason for transference . . .99 Work, other, meaning of, sec. 7 (2) . .... 38-40 Workman defined, sec. 7 (2) . . 53 Workshop, meaning of 30 For list of Employments included, see pii. 44-52. 172 INDEX 93 Writing— requisite for nobice ........ authorising person to appear, 2nd Sell. (14) (c) . . 118, 128 medical report to be in . ... 99 Wrong-Doer — employer not viewed as . . . . . 8, 87 remedy against .... ... 83-89 For list of Employments included, see pp. 44-52. 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