60 & 61 Vict. c. 37, s. 1 (2) (a). Injury caused by personal negligence or wilful act. disable the workman for a period of at least two weeks (1) from earning full wages at the work at which he was employed: (1) In explaining the introduction of these words, Mr. Chamberlain said :— The reason why the limit of two weeks was introduced was this. The Bill applied a new principle to industry, and threw a new burden on employers and on the trades they represented independent altogether of any negligence or action attributed to the employers themselves. This new principle the Government would only be justified in applying by some great public human interest. Now that great public human interest arose in the case of what he might call serious accidents. The sufferers from those accidents were the wounded soldiers of industry whom they had in their minds, and about whom so much was said in discussing this subject-people who were seriously if not permanently injured, and prevented, at all events for a considerable period, from following their ordinary employment. There would be no ground for legislative interference if they could believe that every accident which occurred was an accident whose effects would not last longer than three weeks. Such accidents as these were accidents for which the workman might properly be expected to make provision himself. (b) When the injury was caused by the personal negligence or wilful act of the employer, or of some person for whose act or default the employer is responsible, nothing in this Act shall affect any civil liability of the employer, but in that case the workman may, at his option, either claim compensation under this Act, or take the same proceedings as were open to him before the commencement of this Act; but the employer shall not be liable to pay compensation for injury to a workman by accident arising out of and in the course of the employment both independently of and also under this Act, and shall not be liable to any proceeding 60 & 61 Vict. c. 37, independently of this Act, except in case of In explaining this clause, Mr. Chamberlain said : They always intended that questions affecting the personal negligence of the employer should be dealt with by alternative methods. It was perfectly true that the essence of the Bill was, with regard to the vast proportion of the accidents which would come under it, that there should be no choice for either the workman or employer but to take their position under the Bill. But they always made an exception in the cases in which it was alleged that the accident was due to the personal negligence of the employer. Those were a very small proportion of the accidents, but as to that proportion, they did intend that the rights of the workman should remain absolutely unimpaired. He was not only to have this new option of taking his position, without discussion, under the Bill, but he would have, if he preferred it, any of the other rights which he would have now under the Employers' Liability Act, Lord Campbell's Act, or the common law. Under the law as it existed before the present Act, the employer was only liable for the wilful act of his servant when done in the course of the servant's employment on the employer's behalf, and with the intention of serving his purposes. The employer was not liable for the wilful act of his servant when that act was done in order to effect some purpose of the servant's. See, on the one hand, 1862, Limpus v. London General Omnibus Co. (1 H. & C. 526), in which the defendants were held liable for the act of their driver in pulling their omnibus across the road in front of the plaintiff's omnibus, although the driver had printed instructions not to race with or obstruct other omnibuses; and, on the other hand, 1821, Croft v. Alison (4 B. & Ald. 590), in which it was held, that where the servant wantonly, and not in order to execute his master's orders, strikes the plaintiff's horses, and thereby produces the accident, his master is not liable. If the workman chooses the old remedies, this question will, of course, be important, but if he chooses the new remedy, the sole question will be, whether the accident arose out of, and in the course of, his employment. tributable (c.) If it is proved that the injury to a workman Injury atis attributable to the serious and wilful mis- to serious conduct of that workman, any compensation and wilful 60 & 61 Vict. c. 37, s. 1 (2) (c). misconduct of workman. claimed in respect of that injury shall be dis allowed. The object of this sub-section is to prevent the workman from recovering in cases where the accident is caused by his own gross negligence without introducing the doctrine of contributory negligence. When the Bill went to the House of Lords, the words were "solely attributable." The House of Lords struck out the word "solely," and the amendment was accepted by the House of Commons. The following passage from Mr. Chamberlain's speech on the consideration of the Lords' amendment is very instructive : The word "solely " was not, it is true, introduced in the early discussions of this amendment. In the first instance there was no reference to the case of " gross and wilful negligence" of the workmen, but it was admitted not merely by the employers but also by representatives of the workmen that it would be a monstrous thing to compensate a workman whose wilful and gross fault had brought on himself and others serious injury. To do so was really to take away one of the causes which might lead to the prevention of accidents-almost to induce accidents instead of to prevent them. In the attempt to deal with this matter, which I admit is a very complicated one, we tried one form of words after another; but we have never been able to please the hon. member. In the first instance, the proposal was that wherever an accident was due to the wilful breach of rules and regulations, or drunkenness, or gross misconduct-in all these cases the workman was not to receive compensation. The word "solely" was not introduced then; it was where the accident was attributable to those causes that the word "solely' was introduced. That was objected to, because it was pointed out that it might go too far, and rules might be made a breach of which might not constitute wilful and serious negligence. On the other hand, it was argued that where a rule was made in order to secure the safety of the workmen and the accident was due to a breach of such rule, then it ought to hold as gross and wilful negligence. We agreed to that argument, and we took out those specific words, and we left the provision in the form in which it has been amended by the other House. In the other House it was pointed out that that would clearly lead to injustice, and I do not think it can be denied even by the hon. member. If you say you must prove that the accident is " solely "attributable, probably you will never be able to prove it, although there might have been much gross and wilful negligence. I am sure that hon. members would not pretend that a 60 & 61 Vict. c. 37, workman in such circumstances is entitled to compensation, yet you could not say that the accident was "solely attributable to any one cause, because an accident almost s. 1 (2) (c). invariably is connected with more than one cause, and "solely " would bar all these cases. I will give one case. Suppose an accident were due, using the words here, to "serious and wilful misconduct" of two workmen engaged in the same operation. Then, as it would not be "solely attributable" to the action of either, for both of these men were guilty, it is doubtful whether they would come in for compensation. There is evidently a blot in our work, and although it is true we gave serious consideration to the matter before proposing the provisions, yet when it was pointed out that a construction of this kind would be unfair and unjust, we thought it would be right to accept or to consider an amendment to remove that injustice. As the section will stand with the amendment of the other House, I do not think it makes a great difference. It takes a very great lawyer to see the exact difference between "attributable" and "solely attributable." The only fear is whether by the word “solely” we should let in the doctrine of contributory negligence, which we expressed our desire to exclude. I do not think it would be the case. tion. (3.) If any question arises in any proceedings Arbitraunder this Act as to the liability to pay compensation under this Act (including any question as to whether the employment (1) is one to which this Act applies), or as to the amount (2) or duration (2) of compensation under this Act, the question, if not settled by agreement, shall, subject to the provisions of the First Schedule to this Act, be settled by arbitration, in accordance with the Second Schedule to this Act. (1) As defined by sect. 7 (1). (2) See the First Schedule as to the amount and duration of compensation. (4.) If, within the time (1) hereinafter in this Act Mistake limited for taking proceedings, an action is brought as to proceedings. to recover damages independently of this Act for injury caused by any accident, and it is determined in such action that the injury is one for which the 60 & 61 Vict. c. 37, s. 1 (4). Time for taking proceedings and notice of injury. employer is not liable in such action, but that he would have been liable to pay compensation under the provisions of this Act, the action shall be dismissed; but the Court in which the action is tried shall, if the plaintiff shall so choose, proceed to assess such compensation, and shall be at liberty to deduct from such compensation all the costs which, in its judgment, have been caused by the plaintiff bringing the action instead of proceeding under this Act. In any proceeding under this sub-section, when the Court assesses the compensation it shall give a certificate of the compensation it has awarded and the directions it has given as to the deduction for costs, and such certificate shall have the force and effect of an award under this Act. (1) The claim for compensation must be made within six months of the accident causing the injury, or, in case of death, within six months from the time of death. (See sect. 2 (1).) (5) Nothing in this Act shall affect any proceeding for a fine under the enactments relating to mines or factories, or the application of any such fine, but if any such fine, or any part thereof, has been applied for the benefit of the person injured, the amount so applied shall be taken into account in estimating the compensation under this Act. 2. (a)—(1) Proceedings for the recovery under this Act of compensation for an injury shall not be maintainable unless notice of the accident has been given as soon as practicable after the happening thereof and before the workman has voluntarily left the employment in which he was injured (1), and (a) See the corresponding sections in the Employers' Liability Act, post, pp. 61, 64. |