SCHED. II. Par. (4). Provisions as evidence of how a deceased workman hurt himself by striking his head against a lintel, and there was no other evidence, his award was set aside (). In a similar case, where the applicants wanted to rely on the statement of the deceased as to how he had been hurt, Buckley, L. J., said :-" You want to use this evidence, not to show that this man was ill, but why he was ill "(i). A case presenting more difficulty is where there has been some evidence, but at the same time the judge has been obviously influenced by other evidence which was not admissible. Can an appeal be then entertained? Such difficulty arises when judges have to adjudicate on the weekly average earnings under Schedule II., para. (2) (a), and take the evidence of what was being earned by certain persons as there specified. There cannot help but be times when the admissibility of such evidence must be doubtful, and the question is, Can the judge's decision on such point be appealed from when, apart from such evidence, there is other evidence in support of his finding of fact? The question whether such evidence, or similar evidence, was admissible would undoubtedly be a question of law, and, as such, a matter for appeal. But would the decision carry the matter further? Would the Court hold that, there being some evidence, they were still bound by his finding, or, rather, that they ought to inquire whether his finding would have been the same irrespective of such evidence? It seems the latter view would be more consonant with the furtherance of justice, and, therefore, on the whole, it would seem that appeals on the wrongful admission of evidence could be correctly made. If this is so, the logical result would also follow that the wrongful rejection of evidence would also be the subject of appeal. Of course, these cases are quite different from where there is a conflict of evidence. It is no ground of appeal that the decision was against the weight of evidence. "It is not ad rem to (h) Wolsey v. Petluck, 1 B. W. C. C. 411. (i) Gilbey v. G. W. Rly., 102 L. T. 202. Provisions as say that the finding was, on the balance of evidence, a wrong one, SCHED. II. and that the judge ought, upon the evidence, to have come to a Par. (4). different conclusion of fact" (k). One must go further and say to appeal. there was no evidence, though possibly it may be enough to prove of law. the judge was influenced by matters which were not evidence, and that therefore his decision was not correct. No doubt the right of appeal is the safety of our judicial system, aud the tendency is to enlarge, not restrict, such right, and as an example of such tendency and of the foregoing remarks, we cannot do better than instance the recent case of Brooker v. Warren (1). Here a workman was engaged at a circular saw. Under certain conditions this saw had a tendency to catch the log being sawn, and to hurl it, like a bolt from a catapult, across the factory. To prevent this a guard was provided. The factory inspector told the man to use this guard, his master told him to use it, and his fellow-workmen complained when he did not. Notwithstanding, he deliberately would not do so. He did not believe in it, and he preferred working without it. happened that the wood got caught and thrown, as described. He was in front of it at the time, and was struck by it and mortally injured. The County Court judge found his act was wilful, but not serious, misconduct. There was some evidence to support his view. Amongst other matters, the employer knew he was not being obeyed, but as the man was his friend as well as his workman, he did not peremptorily insist on his orders being carried out. Under such circumstances, was the not carrying out such order not merely misconduct but serious misconduct ? Then it we have The Court of Appeal hardly pretended there was no evidence on which the County Court judge could find it was not, but simply disagreed with him, and reversed his decision on the ground that, in their opinion, the misconduct was not only wilful but most (k) Collins, M. R., in Kenny v. Harrison, (1902) 2 K. B. at p. 172. (1) 23 T. L. R. 201. Questions SCHED. II. Provisions as of law. serious as well. Now, the principle is well established that where the end of a rule or order is to secure safety of life and limb, and the breach of it may be attended with serious consequences, then the breach itself must be regarded as serious misconduct. In this light possibly there was no evidence to justify the finding of the arbitrator. But whilst it would seem the right of appeal is considerably larger than at first sight would appear, yet let practitioners never forget that judges who have neither seen the witnesses nor heard the evidence always pay the greatest deference to the opinion of the judge who has had this advantage. Hence the weight his findings have with those who have to reconsider his conclusions in law. Court of Appeal. The right to appeal is given by this para. (4). This paragraph is the same as under the old Act, save that the words in italics have been added. Formerly the words governing such appeal were, "and in any case where he himself settles the matter under this Act." Now they are, "and in any case where he himself settles the matter under this Act or when he gives any decision or makes any order under this Act." Under the old Act, after numerous decisions, one did know at last to which Court to appeal. Now it is all unsettled. Few things are more wearisome than weighing the effect of words which, after all, are only to settle what judges are to hear a cause. However, nothing is more irritating than to be dismissed for want of jurisdiction, and so we will consider the subject far more lengthily than the merits deserve. We will first state what we take the law to have been, apart from the added words, as found in the old decisions. Ordinarily appeals from the County Court, by sect. 120 of the County Courts Act, 1888, are to a Divisional Court, but in arbi- SCHED. II. trations under this Act are to be direct to the Court of Appeal (m). Par. (4). Provisions as to appeal. Appeal. When the judge decided matters connected with such arbitra- Court of tions as judge, and not as arbitrator, the appeal lay to the Divisional Court. The dividing line between his functions as arbitrator and judge was the making of the award. When it was made the arbitration was at an end (»). The award, if faulty, might be questioned, but not matters outside it. Interlocutory and other proceedings leading up to the award as preliminary to and part of the arbitration were and are subject to appeal to the Court of Appeal (o), but matters subsequent to it formed part of the ordinary County Court procedure, and, as such, if appealed against, had to be taken to the Divisional Court (p). This was so decided as regards the registering of the memorandum and enforcing it, as also when awards were sought to be enforced against insurers (pp). For the same reason, a question of jurisdiction between Scotch and English Courts was disposed of by a Divisional Court, whilst in a number of cases on costs the Court of Appeal refused to hear them, on the ground they were outside the award. Thus, in Welland v. G. W. Rly. (q), the judge refused to exercise powers it was asserted he possessed. As the matter came before the Court of Appeal in the form of asking them to compel him to use such powers, they decided such application should have been made to the Divisional Court under sect. 131 of the County Courts Act, 1888 (r). Keene v. Nash (s) was a similar case. There a plaintiff, having failed in an action under the Employers' Liability Act, 1880, SCHED. II. asked for compensation to be assessed under sect. 1 (4) of the Act. This was done. On taxation the registrar allowed the defendants their costs at 227., then taxed the plaintiff's costs of assessing compensation on a hypothetical bill at 157., and set off one set of costs against the other. The plaintiff objected to all the defendant's costs being allowed, and applied to the County Court judge to order a review of the taxation. On his refusing he appealed to the Court of Appeal. The Court dismissed the appeal on the preliminary objection that no appeal lay to them from the refusal of a County Court judge to direct a review of taxation, and that it was a matter quite outside the appellate jurisdiction of the Court under the Act. The question again came before the Court of Appeal in Rigby v. Cox (No. 1) (t). Here an application to review compensation had been made, and failed. On taxation of costs the registrar followed the general rule of the judge, that all such costs were to be taxed as on interlocutory proceedings. On appeal being made to the judge to order a review of such taxation, on the ground such general rule was bad (u), and his refusing to make such order, the workman appealed to the Court of Appeal. This appeal the Court dismissed on the ground they could not distinguish it from their former ruling in Keene v. Nash (x). In Williams v. Army and Navy, &c. Society (y), the appellant was again unfortunate. He had brought an action under the Employers' Liability Act, 1880, had been non-suited, had appealed to a Divisional Court against the non-suit and been dismissed, and on asking for compensation to be assessed under the Act, the judge had ordered the costs occasioned by the action. and appeal to be deducted. Again he appealed to the Divisional Court as to such deduction, and again was dismissed on the preliminary objection he should have gone to the Court of Appeal. (1904) 1 K. B. 358. (u) Ultimately so held by the Divisional Court in Rigby v. Cox (No. 2), (1904) 2 K. B. 208, as the judge must exercise his discretion in every case. (x) 88 L. T. 790. (y) 23 T. L. R. 408. |