tion. Formerly, according to a Scotch case ("), which hardly appears SCHED. I. Pars. (1), (2). to be sound, claims under these heads were mutually exclusive, so The amount that one set of persons could not claim under (a) (ii.) and another of compensaset under (a) (iii.); and if those wholly dependent were found Its assessentitled, it excluded all those in part dependent from claiming as well. But this is so no longer, and the rights of dependants inter se are provided for by para. (8) of the First Schedule, and are there dealt with. Next, as to the compensation to be paid in case of (i) Total incapacity. (ii) Partial incapacity. Along with paragraphs (1) and (2), para. (3) is most material. Amount of weekly payment. (3) In fixing the amount of the weekly payment, regard shall be had to any payment, allowance, or benefit which the workman may receive from the employer during the period of his incapacity, and in the case of partial incapacity the weekly payment shall in no case exceed the difference between the amount of the average weekly earnings of the workman before the accident and the average weekly amount which he is earning or is able to earn in some suitable employment or business after the accident, but shall bear such relation to the amount of that difference as under the circumstances of the case may appear proper (s). (r) Fagan v. Murdoch, 1 F. 1179. (s) There is a considerable difference between this and the old sub-sect. (2), for which it is substituted, which was as follows: "(2) In fixing the amount of the weekly payment, regard shall be had to the difference between the amount of the average weekly ment. SCHED. I. Par. (3). Amount of weekly payment. be had. During the period of his incapacity. As regards the period of incapacity the para. equally applies to total as partial incapacity. In other respects it mainly deals with Regard shall partial incapacity. What regard an arbitrator must have to such payments is a matter within his discretion. He is to settle how such regard should be worked out. Thus, payments made to a hospital may well be taken into account (t). This is the rule, and in ordinary cases it works well. It enables an employer to at once assist an injured workman, knowing that if compensation is claimed, such assistance must be credited to him. In the case of seamen, it may operate harshly. Under sect. 7 (1) (e), he is not to receive any weekly payment at all, whilst his employer is liable under the Merchant Shipping Act, 1894, to pay anything for his maintenance whilst disabled. And, if during any part of the same period his employers have to pay him his wages, as they may be bound to do, then, on the settling the amount of the compensation, they are entitled to require the arbitrator to have regard to the wages so paid him as a payment made during the period of his incapacity. Thus, according to the regard had, a man may possibly receive neither wages nor compensation (u). As a rule all payments made pending incapacity ought to be taken into account. Thus, a workman and his employer mutually agreed to settle for 107., which was paid. When the agreement came before the County Court for registration, the arbitrator refused to pass it, and subsequently, when the matter again came before him to assess the compensation, he refused to credit the employers with the 107. paid. But in this he was held to have decided wrongly, as he ought to have taken it into account (†). However, where a workman received aliunde 10s. a week as poor (t) Kempson v. Moss Rose, 4 B. W. C. C. 101. (u) McDermott v. S.S. "Tintoretto," (1909) 2 K. B. 704; see also ante, p. 214 et seq. Since writing above the Court of Appeal has in this respect been overruled by the House of Lords, 4 B. W. C. C. 123. (v) Horsman v. Glasgow Navigation Co. (1909), 3 B. W. C. C. 27. relief during part of the same period of incapacity, it was held SCHED. I. this payment could not be taken into account and deducted from the compensation (x). Total incapacity. Next as to (b) (i.) Where the injury results in total incapacity. In this case the compensation will be a sum not exceeding half the workman's average weekly earnings as ascertained, with a maximum not exceeding 17. a week. But neither in this case nor in the case of partial incapacity is it open to the arbitrator to award a lump sum (y). The proviso (a) to para. (1) provides that if the incapacity was less than two weeks, no compensation shall be payable in respect of the first week; and the proviso (a) to sect. 1 (2) of the Act provides that the employer shall not be liable in respect of any injury which does not disable the workman for a period of at least one week from earning full wages at the work at which he was employed. Subject to this, compensation is payable for the whole time of incapacity, and without excluding the first two weeks, as under the old Act. Young persons. Further, in the case of a workman under twenty, it is specially provided that he is to receive a weekly sum equal to the whole of his weekly earnings so that it does not exceed 10s. a week, and special provisions are made in his case for the review of such payment by para. 16, for which, see infra. Partial incapacity. (b) (ii.) Where the injury results in partial incapacity. In cases of partial incapacity, the arbitrator may award any sum not exceeding that payable for total incapacity right up to the limit (x) Gilroy v. Mackie, 46 S. L. R. 325. (y) Baird v. Dempster, 46 S. L. R. 119. Par. (3). Amount of weekly payments. Total incapacity. SCHED. I. Amount of of the maximum of 17. a week. The direction in paragraph (3), that the weekly payment is not to exceed the difference between what the workman could earn before and after the accident, is merely a guide to the arbitrator in determining the amount, and not the limit he must give in every case (z). Nor does it lay down that the actual loss of wage-earning capacity is to be equally borne by the workman and his employer (a); and if, for instance, the workman had originally been earning 27. a week and had had compensation assessed at 17. a week, the arbitrator might continue such compensation at 17. a week so long as the man was not earning more than another 17. himself. The result practically is, in the case of partial incapacity, to leave the amount to the arbitrator, who will take into account all the circumstances, having regard to what the applicant is able to earn after the accident in some suitable employment or business. So the Court has held that, whether the incapacity is the result of the accident, or has arisen from neglect of medical advice, is a question of fact from the decision of which there is no appeal (b). Able to earn in some suitable employment or business. This enactment is probably of the most general importance in the whole statute. Other points may be of moment in an occasional instance, this practically affects every case where a workman does not succumb to his injuries. This clause presents itself under three heads: (a) Ability to earn as a physical fact. (z) Illingworth v. Walmsley, (a) Ellis v. Knott, 2 W. C. C. 116. earning 10s. a week by bootrepairing, and he refused to return to his old employment. As he could not work satisfactorily at such former employment, the arbitrator would not make him return to it, and on appeal his decision was approved. (b) Smith v. Cord Taton Colliery Co., 2 W. C. C. 121. Par. (3). Amount of payments. earn. (c) The steps taken by the workman to recover from his SCHED. I. accident. At the same time these questions are so inextricably mixed in weekly the cases decided, that we cannot keep to this order in discussing Ability to them. Further, we may observe that the same points and the same evidence equally arise both on original applications for arbitration in the first instance, as well as for review under para. 16, and therefore so far as they run on common lines we may do well to consider them both together. The differences, due to the fact that review involves a prior agreement or hearing, we will defer till we consider this later paragraph. Here, we may premise that in assessing compensation for partial incapacity, the governing rate of wage is the rate ruling at the time of the accident. Fluctuations in the market rate cannot be taken into account in subsequent application for review. A man earning 34s. a week as a haulier was injured, and held entitled to 17s. a week whilst totally disabled. His employers took him back as a lamplighter, and gave him the wages he would have been then earning if still a haulier, viz., 298. 5d. The arbitrator refused him compensation on the ground that the average, as originally fixed, ought to be varied with variations in the rate of wage on which it was based. This was held a wrong principle, and the case sent back to him for rehearing. The same principles were approved in the Scotch case of Jamieson v. Fife Coal Co. (d). In addition to there being a general fall in miners' wages, it was urged the miner was over sixty-four, and therefore less likely to have earned so much, but neither fact was held to be relevant (e). Where, however, a man is actually employed he benefits or otherwise by the fluctuations in the rate of wages paid. Thus, a man who lost his right hand was found employment in another (d) 40 S. L. R. 704. (e) See otherwise, where man's remaining incapacity only due to advancing years, Boase v. M'Avan, |