If the injury to the deceased person had not resulted in death immediately, and in the interval between the date of the accident and the date of death, he had himself brought an action against the person liable, his representatives would not be able to bring another action under Lord Campbell's Act. The action would be absolutely barred if not commenced within twelve months of the death. This provision is qualified where the person liable is a public authority within the meaning of the Public Authorities Protection Act, 1893, in which case the action must be commenced within six months of the death. An executor or administrator who neglected to bring an action under Lord Campbell's Act against a public authority during the first six months, would thereby debar the relatives from suing in their own names during the second six months.

Particulars Required. By Section 4, the person bringing an action under this Act is required to deliver particulars of the person or persons on whose behalf the action is brought, and the nature of the claim.

Scottish Law. Section 6 provides that nothing in the Act shall apply to Scotland.

The Act was not required in Scotland, as by the law of that country, it had always been competent for a jury to award damages to the relatives of a deceased person whose death was caused by some other person's negligence.

Application of Act. The Fatal Accidents Act is of universal application wherever a death is caused by the wrongful act, neglect, or default of another, and, in this sense, it forms an integral part of the law of negligence. So far as regards the law on workmen's compensation, it has to do only with cases where the death of a workman occurs, and it should again be emphasized that the Act introduced no new liability on the employer in respect of the death of his workmen. We have already shown in what circumstances the employer was liable for injury to his employees at common law. This liability remained exactly the same after the passing of Lord Campbell's Act, except that an extension was made in the number of persons who might sue in respect thereof.

That the common law was often harsh in its operation, and except in a limited number of cases left a workman and his dependants totally unprovided for in case of injury by accident, even though

LIABILITY OF THE EMPLOYER FOR ACCIDENTS

9

that accident was solely occasioned by the nature of the employment, cannot be doubted. With the growth and development of industrial life in this country this state of affairs became in course of time impossible, and led to the passing, step by step, of the laws governing the relations between an employer and a workman injured in his employment. The legislature, as is usual, proceeded slowly in the matter by first depriving the employer of certain defences open to him when sued by an employee for injuries due to negligence, and only at a later stage recognizing any right in the workman to compensation apart from negligence.

The evolution of the law on the subject will be dealt with in the next chapter.

2-(1907)

CHAPTER II

STATUTORY LAW

A FULL and thorough exposition of the statute law relating to workmen's compensation would more than suffice to fill the whole of this volume. It may be doubted whether any one Act has ever given rise to so much litigation as the Workmen's Compensation Act, 1906. Its exact meaning is so undefined and the question of liability thereunder is often so difficult to determine. The late Lord Cozens-Hardy, who as Master of the Rolls did more than any other judge to interpret its provisions, used constantly to refer to it as this most difficult Act." The law of workmen's compensation has been fully and adequately dealt with by Judge Ruegg in his standard work on the subject, and an admirable text-book for students is Willis' Workmen's Compensation, which, as a compendium of the latest developments of this branch of the law, would be hard to excel.

In order, however, to add coherence to a work on the insurance side of the subject, and to facilitate a due appreciation of the conditions attaching thereto, it is desirable to set out as briefly as may be possible how the law stands.

EMPLOYERS' LIABILITY ACT, 1880.

The position of an employee in relation to occupational injury under the common law was, as we have seen, one of considerable hardship, and this fact contributed in no small degree to the passing of the Employers' Liability Act, 1880, the forerunner of the series of Acts. It should be understood that this Act did not recognize nor establish any right in the workman to compensation merely because he had met with an accident in the course of employment. What it did was to make the employer liable in certain cases of negligence, and to deprive him of the common law defence of "common employment." The title of the Act, "Employers' Liability," as distinct from "Workmen's Compensation," gives

the clue to this distinction.

Section 1. Section 1 of the Act enacts as follows-
Where personal injury is caused to a workman

(1) By reason of any defect in the ways, works, machinery or plant connected with or used in the business of the employer; or (2) 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; or

(3) 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; or

(4) By reason of the act or omission of any person in the service of the employer, done or made in obedience to the rules or by-laws of the employer, or in obedience to particular instructions given by any person delegated with the authority of the employer in that behalf; or

(5) By reason of the negligence of any person in the service of the employer who has the charge or control of any signal, points, locomotive engine, or train upon a railway, the workman, or where the injury results in death, his legal personal representatives, shall have the same right of compensation and remedies against the employer as if the workman had not been in the service of the employer nor engaged in his work.

It will be clearly seen from this that the right to compensation under this Act is founded solely in the negligence either of the employer himself or of his servants, and the employer could no longer set up as a defence that the workman was in common employment unless the injury was due to the negligence of a subordinate fellow employee.

There was, however, another defence available to the employer at common law, viz., contributory negligence of the injured workman, so that no remedy would lie if the workman's negligence and not the employer's was the proximate cause of the injury.

Section 2. This defence was still preserved under the 1880 Act by the provisions of Section 2, which runs as follows

A workman shall not be entitled under this Act to any right of compensation or remedy against the employer in any of the following cases.

(1) Under Sub-section 1 of Section 1, unless the defect therein mentioned arose from, or had not been discovered or remedied owing to the negligence of the employer, or of some person in the service of the employer, and entrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition.

(2) Under Sub-section 4 of Section 1, unless the injury resulted from some impropriety or defect in the rules, by-laws, or instructions therein mentioned.

(3) In any case where the workman knew of the defect or negligence which caused his injury and failed within a reasonable time to give, or cause to be given, information thereof to the employer or some person superior to himself in the service of the employer, unless he was aware that the employer or such superior already knew of the said defect or negligence.

Scale of Compensation. The Act goes beyond the rules of common law in laying down a definite scale of compensation. If an action for damages could be sustained at all at common law, damages were assessed by a jury. By Section 3 of the Act, the compensation is not to exceed a sum equivalent to the estimated earnings during the three years preceding the injury of a person in the same grade employed during those years in the like employment and in the district in which the workman is employed at the time of the injury.

This defines the maximum amount payable as compensation. The amount payable in each case is decided by the Judge of the County Court in England, or the Sheriff Substitute of the Sheriff's Court in Scotland, but such action may on the application of either party be removed to the High Court (Section 6).

Under Section 5, there shall be deducted from any compensation awarded to a workman any penalty which may have been paid to the workman or his representatives by virtue of any other Act, or if full compensation had been awarded under this Act, the workman could not subsequently claim any such penalty.

Notice of Injury. Section 4 of the Act deals with the question of notice of injury and the time limit for making a claim. Notice of injury must be given within six weeks, and any action must be commenced within six months from the date of the accident, unless it resulted in death, when the period is extended to twelve