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Compston, K.C., and D. Rowland Thomas, for the respondents. To entitle the appellant to compensation under the second limb of par. 1 (a) (i.) it must be shown that the employment was an employment short of a substantially continuous employment for three years. As regards the seven days during which the deceased was out [763] of work, the maxim de minimis applies. Continuity of employment does not involve continuity of the contractual engagement. Hewlett v. Hepburn & Co. (1899) 16 Times L. R. 56; Turner v. Port of London Authority (1913) 6 B. W. C. C. 23, 29 Times L. R. 204. The employment need not be under one contract of service; there may be a succession of contracts. The onus is on the applicant, the appellant, to prove that the old contract was at an end and that a new contract came into existence commencing on July 22, and that onus she has failed to discharge. It was for the applicant to show that this day to day contract was a contract which came to an end automatically, like the contract of a dock laborer or a taxicab driver. Assuming that notice was necessary to terminate this contract, it was agreed in the Court of Appeal, in order to save the expense of sending the case back to the county court judge, that no notice of the so-called strike was given to the employers. The men simply ceased work; they did not even remove their tools. There being no evidence of what this contract was, or that it was a contract that could be determined without notice, there could be no evidence that the contract had come to an end. A mere repudiation of a contract does not of itself bring the contract to an end. Frost v. Knight (1872) L. R. 7 Ex. 111, 41 L. J. Exch. N. S. 78, 26 L. T. N. S. 77, 20 Week. Rep. 471. On July 15, no notice to terminate having been given, the men were still under an obligation to work for their employers; and it is remarkable, as showing the appellant's view of the case, that in her particulars of claim compensation is claimed as from July 15. There was no evidence whatever to support the finding of the county court judge beyond the mere fact that the deceased was out of work. Tindal Atkinson, K.C., replied.

The House took time for consideration.

9 B. R. C.

Lord Finlay, L.C.: My Lords, the question in this case is ast to the measure of compensation payable under the Workmen's Compensation Act 1906, in respect of the death of a workman. The relevant enactments are found in the first schedule to the Workmen's Compensation Act 1906, clause 1 (a) and clause 2 (c). Clause 1 of that schedule deals with the amount of compensation payable under the act, and under (a) it provides what [764] the compensation should be where death results from the injury. In cases in which the workman has left dependents wholly dependent upon his earnings the compensation is to be "a sum equal to his earnings in the employment of the same employer during the three years next preceding the injury," or 150l., whichever of these sums is the larger, but in no case to exceed 300l., "and if the period of the workman's employment by the said employer has been less than the said three years, then the amount of his earnings during the said three years shall be deemed to be one hundred and fifty-six times his average weekly earnings during the period of his actual employment under the said employer."

Clause 2 (c) gives the following definition: "Employment by the same employer shall be taken to mean employment by the same employer in the grade in which the workman was employed at the time of the accident, uninterrupted by absence from work due to illness or any other unavoidable cause."

The deceased was killed by accident in the course of his employment on March 10, 1916, and his widow claimed compensation on the footing that the period of the deceased's employment by the same employer had been less than three years, in which case she would be entitled to the maximum compensation of 3001. The employers contended that he had been in their employment during the three years next preceding the injury, so that the compensation was the amount of his earnings during the three years; namely, 2591. 4s.

The case resolved itself into an inquiry whether there had been a break in the employment from July 14 to 21, 1915. If there had been such a break, the employment would not have been continuous for the three years and the larger amount of compensation would be payable.

The county court judge decided in favor of the claimant, giv

ing her 3001. His decision was overruled by the Court of Appeal, who held that there was in point of law no evidence on which the county court judge could find that there had been such a break in the employment, and reduced the amount of compensation to 2591. 4s. Your Lordships are now asked to restore the award of the county court judge.

The deceased had been in the employment of the respondents as [765] assistant repairer for three years continuously, unless there was a break during the week July 14 to 21, 1915, as found by the county court judge. Up to June 30, 1915, he was serving on the terms of the Conciliation Board agreement of April 8, 1910, which by clause 26 was to continue until March 31, 1915, and thenceforth until the expiration of three months' notice. On April 1, 1915, the three months' notice was given to terminate this contract, and that notice expired on June 30, 1915. The deceased, however, along with the other men, worked on "day by day" up to July 14. During the week July 14 to 21 there was what is called in the judge's notes a strike, and the deceased, with most of the other men in the colliery, did no work during that time. On July 22 they returned to work on a provisional agreement, and on September 2, 1915, a final agreement was arrived at regulating in a number of particulars the terms of employment. Its 30th clause provided that the agreement should continue in force from July 15 till the expiration of six months after the expiration of the war, and thereafter until the expiry of three months' notice. The 32d clause provided for the signature of the contract by the owners and by each workman "as one of the terms of the engagement between the owners and the said workmen." This agreement was signed by owners and workmen, including the deceased, the men returned to work, and the deceased continued at work until his death.

The authorities lay down, and I think rightly, that a workman is not in the employment of the same owner for the three years within the meaning of the provisions of the schedule which I have quoted unless his employment is continuous. It need not be under the same contract of service. So long as there is no interval of time between the end of one contract of service and the beginning of another there would be continuous employment. Indeed, I think it follows from the authorities that if a dock

laborer, who is engaged day by day, whose wages are paid at the close of each day, and who has no right to be employed on the following day, had been in fact employed on every working day of the three years by the same employer, there would have been continuous service, and therefore he would have been in the employment of the same employer for the three years so as to render applicable to his case the first scale mentioned in clause 1 (a) of the first schedule.

[766] If there is continuous employment, it is not necessary that there should be continuous work. If the contract or contracts subsist throughout the three years, there may be intervals in the work. The man may be employed to work only for, say, two or three days a week. He may stop away from work with or without leave, and even unlawful absence would not interrupt the continuity of the employment unless the employer dismissed the workman for it.

As the absence of the deceased from work during the week July 14 to 21, 1915, was wilful and not due to illness or any other unavoidable cause, it is unnecessary for the purpose of the present case to consider the meaning of the words at the end of clause 2 (c) of the schedule, "interrupted by absence from work due to illness or any other unavoidable cause," which have given rise to so much doubt and difficulty.

That the deceased was not working during the week July 14 to 21, 1915, is clear. The question on which the county court judge and the Court of Appeal differed was whether during that week there was a break in his employment as well as in his work. The question is one purely of fact, and the decision of the county court judge is conclusive on questions of fact, provided there was any evidence in point of law on which his conclusion of fact could be arrived at. The only ground on which the decision of the county court judge can be reversed is that there was no evidence on which, if the case had been tried by a jury, the judge would have been justified in leaving the question to them.

At the conclusion of the hearing I was under the impression that there was evidence on which the county court judge might arrive at the conclusion which he reached. As I understood that the majority of your Lordships on the hearing of this appeal were of opinion that there was none, I have most carefully recon

sidered the case, and after doing so I remain of opinion that it is impossible to say that there was in point of law no evidence in support of the appellant's contention. It was, of course, for the appellant, as claimant, to establish the proposition on which her claim to compensation on the scale which happened in the present case to be more beneficial to her must depend. The burden of proof was upon her, and if she failed to adduce any evidence in support of it the Court of Appeal were justified in setting the award aside. The award could [767] not be interfered with merely on the ground that upon the balance of evidence a different conclusion ought to have been arrived at.

The contract on which the deceased had for a long time worked came to an end on June 30, 1915, but he and the other workmen worked "day by day" up to July 14. Working "day by day,” in my opinion, denotes prima facie that there was no engagement of any sort beyond the day. It was not suggested that there was any usage requiring notice to determine such an employment, and indeed, on what I think is the prima facie meaning of the term, there is nothing on which notice could operate. If a man work merely "day by day" he is not bound to return to work on the morrow. We have no information as to whether the wages are, under such a system, paid each day or at the end of the week, and it does not appear to me that in either case such a circumstance can be decisive. No point appears to have been taken in the county court as to the necessity of notice in order to terminate a "day to day" employment, and I think that Mr. Tindal Atkinson was entitled to observe, on behalf of the appellant, that if this point had been raised it might have been met by evidence.

The county court judge found that there was a complete break in the employment from July 14 to 21, and further on in his judgment he explains his meaning thus: "In further reply to the contentions made on behalf of the respondents I say that during the seven days the men were away there was no engagement at all. The relationship of master and servant did not exist; it was open for the deceased and any other workman to enter into any employment they liked without any liability for breach of service, and the employers could decline to re-engage them without any corresponding liability. It did not matter what had taken place between the masters and the representatives of the workmen;

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