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liability therefor redeemed, by the payment of a lump sum to be agreed upon by the parties in interest, or determined by arbitration.
Contracting out was permitted only when a substitute provision, acceptable to the workmen and approved by the registrar of friendly societies, was shown to make a not less favorable provision for workmen and their dependents than was made by the act. sation was payable unless the injured employee was disabled from earning full wages at the work at which he was employed for a period of at least two weeks, nor if the injury was the result of the employee's own serious and willful misconduct. The burden of proving the claimant guilty of such misconduct is held to be on the employers, and is said by employers to be “practically impossible, whatever a man does, to get a finding of serious and willful misconduct against him.” The act left other modes of redress open to the injured employee when the injury was occasioned by the personal negligence or willful act of the employer, but did not allow recovery both under and independently of the act. Remedies can not be pursued consecutively, a defeat either at common law or under the employers' liability act closing the case, except that when an action at law fails and liability for compensation is proved, the court may award compensation on the request of the workman, the costs of defense to be deducted in the discretion of the court.
The act was opposed not only by many employers, but in a considerable measure by employees as well, who believed that the amounts required for the payments provided for by the act would be a burden on the workmen rather than on the employer; and when the mine owners asserted that the cost of coal would be increased, the secretary of one of the great miners' associations, himself a member of Parliament and fighting the proposed law, replied that this would not be the case, since the cost of compensation would come ultimately out of the wages of the working people. The supporters of the measure maintained that it only recognized the right of those engaged in the industrial warfare of the country” to be indemnified for accidents occurring under the circumstances of a complex system of production involving the use of dangerous and rapidly moving machinery, that the cost of such indemnification should be classed as one of the incidental expenses of production, and as such would be ultimately met by the consuming public.
That the latter views met with the more general approval is indicated by the amending act of 1900, which extended to agricultural laborers the benefits of the act. The same conclusion is expressed in the report of the departmental committee of 1903 appointed to inquire into the law on workmen's compensation, which said of the original and the amended act that to the question whether these acts had been of substantial benefit to the workmen coming within their provisions, "we think that the general answer must be decidedly in the affirmative."
The original intent of the act of 1897 was that it should provide an automatic method of compensating workmen for injuries, and it was proposed that lawyers should not be allowed to assist claimants under the act. Trial by jury was ruled out and adjustment by arbitrators was provided for. It fell out in practice, however, that the majority of disputed cases were settled by the county courts. Appeal was allowed to the court of appeal and ultimately to the House of Lords, and so far did the law come from being automatic in its operations that one commentator declared that each day the law depends less on the statute created by Parliament and more on the decisions of the court of appeal interpreting the act." A considerable body of cases has accumulated.
WORKMEN'S COMPENSATION ACT OF 1906.
As a net result of the eight years of experience under the tentative act of 1897, a new compensation act was adopted in December, 1906 (see appendix), to take effect July 1, 1907, which covers almost every kind of employment and applies to accidents on the sea as well as to those occurring on the land. The number of persons included in its provisions is estimated to be 13,000,000, as against 7,500,000 covered by the acts of 1897 and 1900.
The word “workman," as used in the act, means any person who has entered into or works under a contract of service or apprenticeship with an employer, whether by way of manual labor, clerical work, or otherwise," unless the remuneration exceeds £250 ($1,216.63) per year (though manual laborers are included, regardless of the amount of earnings) or unless the employment is casual and for other purposes than those of the employer's trade or business. Outworkers, i. e., persons to whom articles are given out to be worked on in their own homes or other premises not under the control of the person for whom the work is done, are excluded. The law includes domestic servants, but excludes members of the employer's family dwelling in his house. Certain industrial diseases are to be compensated for as accidents, the list given in the original act having been enlarged by orders of the secretary of state for the home department, dated May 22, 1907, and December 2, 1908. (See appendix.)
Commutation of weekly payments at the employer's request is regulated by the new law by requiring the sum so paid, in cases where the disability is permanent, to be sufficient to purchase an immediate life annuity through the Post-Office Savings Bank equal in amount to 75 per cent of the annual value of the weekly payments.
Agreed commutations may be made by the parties in interest at
The construction put by the courts on the expressions "accident” and "arising out of and in the course of the employment” is of sufficient importance to receive some notice here. These are the same in both acts, so that decisions relating to the act of 1897 are applicable to that of 1906.
Early cases involving the meaning of the word "accident" resulted in conflicting and unsatisfactory rulings, the general attitude of the court of appeal being that the question as to whether or not any certain event was an accident was one of fact rather than of law; so that the findings of the arbitrators in the various cases were approved, without attempting to reconcile them when they differed. The question finally came before the House of Lords in the year 1903, in the case of Fenton v. Thorley & Co. (A. C. 443, 72 L. J. K. B. 787, 89 L. T. 314, 19 T. L. R. 684). The case was that of a man who had ruptured himself by an act of overexertion in attempting to turn the wheel of a machine. He was allowed compensation. In this case it was said the expression “accident” as used in the act is used in the popular and ordinary sense, as denoting “an unlooked for mishap or an untoward event which is not expected or designed.” Another case was quoted, in which it was said: “Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss." It was also said that the word “accident" is not made inappropriate by the fact that the man hurt himself and that the interpretation of the act, when applied to ascertained facts, is a question of law, so that the question as to whether certain ascertained causes of injury amount to an accident is for the appellate courts to freely decide, without regard to the attitude or opinion of the arbitrators.
The event may be the natural and reasonably anticipated result of the conditions, if they had been fully known, and therefore not fortuitous, but may be none the less accidental so far as the injured person is concerned. This would cover cases of injury caused by the malicious act of another, as where a locomotive engineer was struck by a stone thrown at his engine by a malicious or mischievous person.
Infection with anthrax has been held to be caused by the “accidental alighting of a bacillus”'on the person of the deceased, and so within the act of 1897; though lead poisoning, gradually contracted, and “beat hand” and “beat knee," caused by repeated jar or pressure of the affected parts, were not caused by accident within the meaning of that act. It may be noted that the above injuries are all within the provisions of the compensation act of 1906 without regard to the element of accident.
The expression, "arising out of and in the course of the employment” involves two ideas, “arising out of” conveying the idea that the accident happened owing to some danger or risk which belongs to or is connected with the employment and to which the workman was exposed during the employment; while in the course of” only means that the accident must happen during the employment, i. e., during the existence of the relationship of master and servant, though the workman need not be actually at work at the time. Thus, an employee on his employer's premises for a reasonable time before and after work time, or during dinner hour according to custom, is held to be present in the course of his employment; but is not when going to a different part of the plant for his own personal ends. Travel on the employer's conveyance, under orders to thus reach a place of work, is within the act, while mere permission to use trains as a matter of personal convenience does not give an employee injured during such use a right to receive compensation. Acts done in excess of one's ordinary duties may or may not be regarded as being done in the course of employment, owing to the circumstances. If they can be reasonably regarded as beneficial to the employer, they will be regarded as done in the course of employment, though even this test has not always been able to save a claim.
An injury need not be absolutely and exclusively a consequence of the employment, as where a workman on a scaffold is struck by lightning. In such a case it was held that the greater exposure to danger owing to the position of the workman supported the view that the accident arose out of his employment. So, where a workman was employed near a hatchway into which he fell while suffering from an epileptic fit, it was held that his employment and not the fit was the proximate cause of the injury. Where a ticket collector jumped upon the footboard of a railway car to speak to a friend, and was killed while alighting, the injury did not arise out of his employment; so of an employee cleaning a machine which it was not his duty to clean, or going to a place different from that to which he was ordered. An accident caused by the wrongful act of a fellowworkman or of a stranger will not give rise to a claim unless the accident so caused can be shown to be one of the usual risks of the employment.
The amount of compensation is fixed at the same rate as under the earlier law, except that minors whose average weekly earnings are less than 20s. ($4.87) receive 100 per cent instead of 50 per cent of their wages, provided that the amount payable shall not exceed 10s. ($2.43) per week. Disability to earn full wages need continue but one week to entitle a workman to compensation, instead of two weeks as formerly. Under the first act, no compensation was paid for the first two weeks' disability, no matter how long the workman was laid off. Under the present act, compensation dates from the moment of the accident unless the disability continues less than two weeks, in which case he is compensated only for the fraction of the week succeeding the first. Such at least is the apparent provision of the law, though a construction that is favored by a leading authority on the subject (@) is to the effect that a resultant disability, whether developing immediately, or only after some days, and whether for a single continuous period, or for an aggregate of several shorter intervals, if actually amounting to disability for one week, should entitle to compensation.
An abuse that grew up under the old law in connection with the settlement of claims for death is provided against in the new law by making it the rule that such sums should be paid into the county court to be invested or expended for the benefit of the persons entitled thereto. This prevents the squandering or other improvident use of the money, which as found to be a matter of serious moment when the payment was made in a lump sum to persons who were often incompetent or otherwise unfit to be intrusted with such sums. So also weekly payments or lump sums in commutation thereof may be ordered to be paid into the court to be by it administered for the benefit of the persons entitled thereto, and the original apportionment of amounts payable to each of several dependents may be revised or varied with varying circumstances.
Contracting out under approved schemes is permitted as under the former law, but the scheme must contain provisions enabling a workman to withdraw. An employer may be proceeded against independently of the act only in case the injury is caused by the personal negligence or willful act of the employer or his personal representative; no double recovery can be had. The serious and willful misconduct of the employee bars recovery, unless the injury results in death or in serious and permanent disablement.
The employer is the person primarily charged with the payment of compensation, even though the workman is under a contractor. Provision is made for cases of bankruptcy of the employer by securing to the workman any insurance the former may have been carrying, as well as by making compensation in an amount not exceeding £100 (5486.65) in any individual case a preferred claim against the bankrupt's estate. Where the injury is caused by the negligence of a stranger, an action may be brought against him for damages, as well as making a claim for compensation against the employer; but both damages and compensation can not be recovered. An employer paying compensation under such circumstances is entitled to reimbursement from the negligent third party. No action at law can be brought by an injured person to recover the compensation provided for by the act. In order to recover under the act, notice of an accident must be given as soon as practicable after its occurrence and before the employee has voluntarily left his employment. Claims must
a Ruegg's Employers' Liability and Workmen's Compensation, 7th Ed., p. 337.