in question selected a tradesman having skill and experience, and contracted with him to provide such a scaffold, he would not be liable if it fell from being erected in an unskilful manner."

It is difficult to see, in view of the English decisions, in what respect this direction was erroneous, or of what negligence under the circumstances, the defender could have been convicted; but the Scottish courts have taken a stronger view than the English as to the duty of the employer to examine, by himself or his own superintendents, the plant used in his business.

On the other hand, they have so far followed the decision of Kiddle v. Lovett, ante, p. 127, as to declare that, where an employer is properly condemned in damages under the Employers' Liability Act, he cannot claim indemnity from a third party in respect of a breach of duty owed to him by such third party. See Wood v. Mackay (f). In this case a stevedore, who had been supplied by a shipowner with rope slings for the purpose of discharge of the cargo, was sued by his workman for damages for injury caused by the breaking of one of the said slings. The employer was condemned to pay damages under the Employers' Liability Act. He, in turn, sued the shipowner for negligence in supplying slings unfit for the purpose for which they were to be used (118). The court assoilzied the shipowner on the grounds (1) that, as the shipowner's duty was merely to supply rope slings to the satisfaction of the stevedores, he was not liable in respect of injury caused by the breaking of the defective sling, and (2) that, in any event, as the sole ground on which the stevedores had been held liable in damages was their own negligence in failing to inspect the sling, they could not have an

(ƒ) 8 F. 625; 43 Sc. L. R. 458.

Canadian Notes.

(118) Sec statutory provisions, p. 75, note 68.

action of relief against the shipowner based on breach of contract.

Summary of Decisions. From the review of the whole of the decisions upon this section of the Act, the following general principles may be deduced:

1. The common law liability of the employer for his personal negligence, in the superintendence of his ways, works, machinery or plant, is not extended or altered.

2. There is a new liability imposed by the Act upon employers for the negligence of those to whom they entrust the superintendence of their ways works, machinery or plant.

3. That "defect" in a "way" means a permanent or quasi permanent defect, and not mere temporary obstruction of the way.

4. That a "way" need not be a defined or marked-out path.

5. That works in course of erection may be the "works," within the meaning of the section, of the employer engaged in the erection of such works.

6. That "plant," within the meaning of the section, may be animate or inanimate.

7. That "plant " may be "defective" within the section by being unsuitable for the purpose for which it is applied by the employer or his deputy, as well as by being in bad condition.

8. That unreasonable danger in machinery may be an element proper to be considered in deciding whether such machinery is "defective" within the section.

9. That the ways, works, machinery, or plant need not belong to the employer in the sense that he is the absolute owner of them,

E.L.

K

10. That the "defect" in the ways, works, machinery, or plant must be one which implies negligence on the part of the employer, or of his deputy.

2.-WAS THE INJURY CAUSED BY A FELLOW-SERVANT, WHOSE NEGLIGENCE THE EMPLOYER IS BY

FOR

THE ACT MADE RESPONSIBLE?

Section 1, sub-sections (2) and (3),. considered.As to who are fellow-servants, want of space forbids the enlargement upon what has been already stated with reference thereto (g).

The two sub-sections which refer to this heading must be carefully considered. Both these sub-sections relate to the responsibility of an employer for the acts of his workmen, to whom he has entrusted either a general or a restricted superintendence over the other workmen in his employment. They are conveniently treated of together.

Sub-section (2) enacts that the employer shall be responsible where a workman is injured:

"By reason of the negligence of any person in the service of the employer who has any superintendence entrusted to him whilst in the exercise of such superintendence."

Sub-section (3) makes him responsible in the same way where the workman is injured :

"By reason of the negligence of any person in the service of the employer to whose orders or directions the workman at the time of the injury was bound to conform, and did conform, where such injury resulted from his having so conformed." The language of both these sub-sections demands careful scrutiny, for they together form the chief inroad (g) Ante, pp. 18-22.

made by the Act upon the doctrine of common employment" (119).

What might have been the operation of sub-s. (2) is very much curtailed by the definition given in s. 8 of the Act, of the expression "person who has superintendence entrusted to him," which is declared to mean "a person whose sole or principal duty is that of superintendence, and who is not ordinarily engaged in manual labour" (120). The words "any superintendence," in the sub-section, are therefore somewhat misleading. They may, and probably were, intended to refer to superintendence of any kind or class, and not to the extent or amount of the superintendence. The meaning of the sub-section would have been more easily apparent if it had run thus:

The employer shall be responsible for the negligence of anyone in his service whose sole or principal duty is superintendence, whilst such person is exercising such superintendence.

The two sub-sections, although the wording of them is vague, were, it is believed, intended to refer to a delegation by the employer of what may be described respectively as general and special superintendence over his workmen, and to make him responsible for the acts of the person exercising a delegated authority of either kind.

Each of these sub-sections probably contains, to some extent, what is contained in the other; thus, the person

Canadian Notes.

(119) Identical words are contained in the sub-sections of s. 3 of the Ontario, Manitoba, British Columbia, and Nova Scotia Acts and the Yukon Ordinance. Sub-section (b) of s. 3 of the New Brunswick Act reads, "by reason of the negligence of the employer, or any person in the service of the employer.'

(120) Superintendence is defined in the Ontario Act (s. 2, sub-s. (1)) as meaning "such general superintendence over workmen as is exercised by a foreman, or person in a like position to a foreman, whether the person exercising superintendence is or is not ordinarily engaged in manual labour." The definitions in the Manitoba, British Columbia, Nova Scotia, and New Brunswick Acts and the Yukon Ordinance are substantially similar.

66

mentioned in sub-s. (3) as one to whose orders or directions the workman at the time of the injury was bound to conform," may be a person with general superintendence under sub-s. (2), and vice versa.

Duties of Superintendence.-Considering, in the first place, sub-s. (2), it will be seen that, read with the important limitation contained in s. 8, it makes the employer liable for the negligence of any of his workmen whose sole or principal duties are those of superintendence.

The "duty of superintendence" referred to means a duty which gives a control or authority to the workman exercising it, either over the manner in which the work of the employer is to be carried on, or over the whole or some part of his fellow-workmen, and in this sense have the words been interpreted (h).

The superintendence under sub-s. (2) need not be exercised over the injured person. It is sufficient to render the employer liable that a servant who has superintendence, whilst exercising such superintendence, causes injury to a workman in the service of the same master (i) (121).

In any case the injury must have been caused by the

(h) See, as an example of a case which failed owing to the absence of any evidence of superintendence, Hooper v. Holme and King, 13 T. L. R. 6.

(i) Kearney v. Nicholls, 76 L. T. Newsp. 63.

Canadian Notes.

(121) See Cox v. Hamilton Sewer Pipe Co., 14 O. R. 300; Woods v. Toronto Bolt and Forging Co., 11 O. L. R. 216; Canadian Coloured Cotton Mills v. Talbot, 27 S. C. R. 198; Wilson v. Boulter, 26 Ont. A. R. 184; Shea v. The John Inglis Co., 11 O. L. R. 124; 12 O. L. R. 80; Caldwell v. Mills, 24 O. R. 462; Madden v. Hamilton Iron Forging Co., 18 O. R. 55; and see dissenting judgment of NESBITT, J., in Canada Woollen Mills v. Traplin, 35 S. C. R., at pp. 449 and 450.

It may be the duty of a superintendent to give warnings and instructions: Choate v. Ontario Rolling Mill Co., Limited, 27 Ont. A. R. 155; See MACLENNAN, J.A., at p. 161; Gunn v. Le Roi Mining Co., 10 B. C. R. 59; Lawson v. Packard Electric Co., Limited, 16 O. L. R. 1; McPherson v. Vail, 40 N. S. R. 517; Archibald v. Yelle, Q. R. 6 Q. B. 334; and see p. 121, note 107,