damages for personal injury, irrespective of the Act, which action has failed, and the plaintiff makes a request to the court (m) to assess his compensation under the Workmen's Compensation Act. See ante, pp. 483, 484. The certificate which in this event has to be given by the court, showing the amount of compensation awarded and the deduction made for the costs of the abortive action, is to be according to Form 44 and is to be recorded as if it were a memorandum of an award made by an arbitrator (W. C. R. 51), i.e. it may be registered in the county court of the district in which the plaintiff in the action resides, or in which the accident in respect of which compensation was awarded arose, and may be enforced as a judgment (W. C. R. 51, 73). This application must be made as promptly as possible after the action is dismissed. It is the court in which the action is tried, not the appellate court, which can assess compensation. See Quinn v. John Brown & Co. (ante, p. 489), and see generally as to procedure to be pursued by a plaintiff who fails in his action and desires compensation, Chapter VI.: "Election of Remedies." (b) Where New Arbitrator Appointed by Judge of the County Court. The second case arises where an arbitrator having been appointed either dies, or refuses or becomes incapable of acting. A new arbitrator may, in these circumstances, be appointed by a judge of the county court on the application of any party (n) who then derives jurisdiction solely from such appointment (Sched. 2 (8); W. C. R. 29, Forms 34, 35). Such an arbitrator, when appointed, is in the same position and has the same powers as the arbitrator originally appointed by the judge. (m) Whether the word "court" means the judge or jury in a case where a jury has tried the action, is not stated. It is believed the word refers to the judge of the court. (n) Under the Act of 1897 this jurisdiction was given to a judge of the High Court. (c) A Medical Referee. As previously shown (ante, pp. 474, 475) a medical referee can be invoked by consent of employer and workman, and to him may be referred (a) any question of the workman's condition or fitness for employment, (b) a dispute as to whether, or to what extent the incapacity of the workman is due to the accident (Sched. 1 (15); W. C. R. 54, 82, Forms 48-51). The medical referee in such a case becomes an arbitrator, from whose decision, on the matters submitted to him, there is no appeal (ib.). CHAPTER XI. PROCEDURE IN AN ARBITRATION BEFORE A COUNTY COURT JUDGE, OR ARBITRATOR APPOINTED BY HIM. THE ARBITRATION. In Arbitration Regulated by Rules.-The procedure in an arbitration before a county court judge, or an arbitrator appointed by him, is regulated by the Act itself and by the rules and forms (a) made thereunder. both cases almost all the proceedings are taken in the county court. They are to be recorded in the books of the court in the way usual in other proceedings. In addition a special register is to be kept in which practically every step in an arbitration under the Workmen's Compensation Act, 1906, is to be entered (W. C. R. 81). The proceedings are judicial. See ante, p. 565. Each arbitration matter under the Act is to be kept separately in the register, to be exhibited in the matter of the Act, and to be distinguished by a separate number (W. C. R. 83). See Form of Register, Form 67. The Interpretation Act, 1889 (b), is to apply to the interpretation of the Workmen's Compensation Rules (see r. 1 (4)), and the rules are to be read and construed with the County Court Rules, 1903, and rules amending the same (W. C. R. 1 (5)). Subject to the rules, the procedure in an arbitration is to be the same as in an (a) See Rules and Forms for use under the Act (Appendix N). action commenced in the county court, by plaint and summons in the ordinary way, for trial by the judge without a jury. The rules in force for the time being applying to actions shall, with the necessary modifications, apply to such arbitrations (W. C. R. 27), provided that the burden of proof of any facts which are not admitted shall be the same whoever the party may be by whom the request for arbitration is filed (ib. (2) ). Where any matter or thing is not specially provided for under the rules the same procedure shall be followed and the same provisions apply as far as practicable as in a similar matter or thing under the County Courts Act, 1888, and the rules made thereunder, (r. 80). THE PARTIES. "The Applicant."-The party making application for arbitration under the Act is to be called "the applicant " (W. C. R. 2 (1)). The applicant who institutes the proceedings is generally the workman or the dependants of the workman, but this is not necessarily so, for the employer may institute arbitration proceedings. See ante, p. 569. More persons than one may be joined as applicants in one arbitration in any case in which such persons might be joined in one action as plaintiffs under the county court rules. See W. C. R. 3. If there is a legal personal representative of the deceased workman, the application should be made by him; but it can be made by the dependants themselves (W. C. R. 4 (1)). The term "dependants" includes persons claiming to be dependants (ib. 4 (3)). It is not necessary to take out administration to the estate of a deceased workman for the purpose alone of commencing proceedings to recover compensation under the Act. In Clatworthy v. Green, Limited (c), an employer, who insisted upon this course (c) 86 L. T. 702; 18 T. L. R. 641; 4 W. C. C. 152. being adopted when there was no dispute as to the compensation payable, was held, by the Court of Appeal, to have been rightly made to pay the costs of the proceedings. If a dispute really exists as to who are the dependants entitled to compensation, it may be that the employer would be justified in requiring that letters of administration should be taken out, or at all events that all the persons who are, or may claim to be dependants, should be made parties in the arbitration proceedings (d) (ib. 4 (2)). When the Compensation becomes Vested.—The Irish Court of Appeal held that where a person solely dependent upon the earnings of a deceased workman died before compensation proceedings were commenced, the legal personal representative of such dependant had no claim to institute arbitration proceedings under the Act. The ground of the decision was that the claim of a "dependant" under the Workmen's Compensation Act, is a personal claim, and dies with the person (e). In this case the question whether, if arbitration proceedings had been commenced they would have abated in consequence of the death, was left open (Darlington v. Roscoe, ante, p. 404). This question, however, has now been settled by the House of Lords, and the Irish decision declared to be wrong (United Collieries, Limited v. Simpson & Hendry, ante, p. 405). Independent Right of the Dependants.-The fact that a workman has received compensation before his death, does not, if the injury results in death, take away the claim of the dependants (f), though the weekly payments and any lump sum paid in redemption thereof must be deducted (Sched. 1 (1) (a) (1), ante, p. 406). (d) See Pollok v. Workman, 2 F. 354. (e) O'Donovan v. Cameron, 34 Ir. L. T. (C. A.) 116. |