this section shall be of no force whatever unless and until it is confirmed by Parliament, and if, while the bill confirming any such order is pending in either House of Parliament, a petition is presented against the order, the bill may be referred to a select committee, and the petitioner shall be allowed to appear and oppose as in the case of private bills, and any act confirming any provisional order under this section may be repealed, altered, or amended by a provisional order made and confirmed in like manner. (9) Any expenses incurred by the Secretary of State in respect of any such order, provisional order, or confirming bill shall be defrayed out of moneys provided by Parliament. (10) Nothing in this section shall affect the rights of a workman to recover compensation in respect of a disease to which this section does not apply, if the disease is a personal injury by accident within the meaning of this act. [This section is new, and enlarges materially the scope of the act.] 2. Text of third schedule. Mercury poisoning or its sequelæAny process involving the use of mercury or its preparations or compounds. Phosphorus poisoning or its sequelaAny process involving the use of phosphorus or its preparations or compounds. Arsenic poisoning or its sequela-Any process involving the use of arsenie or its preparations or compounds. Ankylostomiasis-Mining. Where regulations or special rules made under any act of Parliament for the protection of persons employed in any industry against the risk of contracting lead poisoning require some or all of the persons employed in certain special rules to be periodically examined processes specified in the regulations or by a certifying or other surgeon, then, in the application of this schedule to that industry, the expression "process" shall, unless the Secretary of State otherwise directs, include only the processes so specified. b. In general. Apart from § 8, the act has no operation except where there is an accident,59 The third schedule, mentioned in § 8 and this section does not have a retroof the act, is given below. DESCRIPTION OF DISEASE AND PROCESS. Anthrax-Handling of wool, hair, bristles, hides, and skins. Lead poisoning or its sequela-Any process involving the use of lead or its preparations or compounds. 59 If there has been no accident, the | workman's right to compensation, if any, must be based on § 8 of the act. Chuter v. Ford [1915] 2 K. B. (Eng.) 113, 84 L. J. K. B. N. S. 703, [1915] W. C. & Ins. Rep. 104, [1915] W. N. 53, 31 Times L. R. 187, 8 B. W. C. C. 160. 60 In Greenhill v. The Daily Record (1909. Ct. of Sess.) 46 Scot. L. R. 483, the court refused to entertain a claim made by the widow of a workman who had left his employment before the date when the act came into force, and had died after it took effect, from an “industrial disease" to which it was applicable. 61 Curtis v. Black [1909] 2 K. B. (Eng.) 529, 78 L. J. K. B. N. S. 1022, 100 L. T. N. S. 977, 25 Times L. R. 621, 53 Sol. Jo. 576. Cozens-Hardy, M. R., observed that a workman who had contracted an industrial disease, lead poisoning in this case, in order to make a claim, must procure a certificate from the certifying surgeon appointed under the factory and workshop act "for the district in which he is em ployed;" there can be no such surgeon where the disease was contracted at sea. 62 It is not enough for the applicant to active effect,60 and cannot apply to seamen contracting industrial diseases while at sea. 61 There can be no recovery under § 8 unless it is established that the employment caused the disease,62 and that the disease caused the workman's death or prove that the deceased employee had been employed in a lead process within twelve months, and that he died of lead poisoning; it must be shown that the disease was caused by the employment. Dean v. Rubian Art Pottery Co. [1914] 2 K. B. (Eng.) 213, 83 L. J. K. B. N. S. 799, 110 L. T. N. S. 594, 30 Times L. R. 283, 58 Sol. Jo. 302, [1914] W. N. 45, [1914] W. C. & Ins. Rep. 147, 7 B. W. C. C. 209. Compensation cannot be allowed where there is no evidence that the workman's tendency to an industrial disease was due to a previous attack of the disease while in the employment of the master, as opposed to a physical susceptibility to the disease. Jones v. New Brynmally Colliery Co. [1912] W. C. Rep. (Eng.) 281, 5 B. W. C. C. 375, 106 L. T. N. S. 524. Where a medical referee has certified that a miner was suffering from nystagmus, but that it was not due to mining, the sheriff substitute must allow the matter to go on so that the workman may show if he can that the disease of nystagmus, from which he is certified to be suffering, really arose from his employment, and did not arise from other causes. M'Ginn v. Udston Coal Co. [1912] S. C. 668, 49 63 disability; and the workman has the burden of proof of showing that the liability to a recurrence of the disease is due to the accident, and not to a constitutional predisposition to the particular disease.64 The certificate of a certifying surgeon that a workman is suffering from an industrial disease does not require to be obtained before the initiation of proceedings, but may be obtained and produced in the course of the proceedings; 65 and the date at which the certifying surgeon finds the workman to have been disabled may be subsequent to the time of the termination of the workman's employment with the employers.6 66 In the absence of a contract of employment there can be no liability for contribution under 8; 67 but a workman is not necessarily barred from compensation because he falsely stated in his application for employment that he had not used white lead when employed by other persons, where it appeared that the employer was not prejudiced thereby in securing contribution from the other employers.68 on the ground that eight months after he left the employment he was disabled by nystagmus.69 So, where a workman had worked for a few days in an employment involving the use of lead, and after leaving the employment caught cold and died of pneumonia about a month after he had left the employment, the employment was not "at or immediately before," the death, within the meaning of § 8 subsec. 2.70 d. Presumption as to cause of disease. The presumption referred to in § 8, subsec. 2, is that the disablement was due to the nature of the scheduled employment irrespective of the date or place at which the disease was contracted."1 A workman engaged as a surface laborer at a colliery is not entitled to a statutory presumption that the disease of nystagmus, from which he is suffering, was due to the nature of the employment.72 e. Contribution by other employers. Compensation for an industrial disease is recoverable in the first instance from c. Meaning of phrase "at or immedi- the employer who had last employed the ately before." The phrase "immediately before" as used in 8, subsec. 2, refers to a sequence of time, not to a sequence of employment. Consequently, a miner who leaves the employment of the mine owner for a reason not connected with the disease cannot procure compensation upScot. L. R. 531, [1912] W. C. Rep. 134, 5 B. W. C. C. 559. 63 Haylett v. Vigor [1908] 2 K. B. (Eng.) 837, 77 L. J. K. B. N. S. 1132, 24 Times L. R. 885, 72 Sol. Jo. 741, 99 L. T. N. S. 74. 64 Darroll v. Glasgow Iron & Steel Co. [1913] S. C. 387, 50 Scot. L. R. 226, [1913] W. C. & Ins. Rep. 80, 6 B. W. C. C. 354. 65 Taylor v. Burnham [1909] S. C. 704, 46 Scot. L. R. 482. 66 Russell v. Keary (1915) 52 Scot. L. R. 447, 8 B. W. C. C. 410. 67 Pears v. Gibbons [1913] W. C. & Ins. Rep. (Eng.) 469, 6 B. W. C. C. 722. 68 Taylor v. Burnham [1910] S. C. 705, 47 Scot. L. R. 643, 3 B. W. C. C. 569. 69 M'Taggart v. Barr (1914) 52 Scot. L. R. 125, 8 B. W. C. C. 376. 70 An employment which terminated on April 19th cannot be said to have been employment "at or immediately before" May 15th. Dean v. Rubian Art Pottery Co. [1914] 2 K. B. (Eng.) 213, 83 L. J. K. B. N. S. 799, 110 L. T. N. S. 594, 30 Times L. R. 283, 58 Sol. Jo. 302, [1914] W. N. 45, [1914] W. C. & Ins. Rep. 147, 7 B. W. C. C. 209. 73 workman during the period, however short that period of employment may have been.7 In seeking contribution from prior employers, there is no obligation on the part of the employers to prove that the disease was contracted while the claimant was in the service of the previous employers.74 Under 8, subsec. 1 (c) (iii), the ar 71 Glancy v. Watson (1915) 52 Scot. L. R. 279, [1915] W. C. & Ins. Rep. 40, 8 B. W. C. C. 391. 72 Scullion v. Cadzow Coal Co. [1914] S. C. 36, [1913] 2 Scot. L. T. 271, 51 Scot. L. R. 39, [1914] W. C. & Ins. Rep. 129, 7 B. W. C. C. 833. The basis of this decision was that the expression "the process of mining" was not equivalent to the expression "employment on, in, or about a mine," and that if the legislature had intended that the statutory presumption should apply in the case of a surface worker, the latter phrase would have been used in the statute. 73 Merry v. M'Gowan (1914) 52 Scot. L. R. 30, 8 B. W. C. C. 344. In this case, the miner had been in the last employment but two days. 74 Where, upon an application for compensation by an employee who was suffering from mercurial poisoning, the employers disputed their liability on the ground that the disease was not contracted in their service, and served third-party notices on other employers, claiming contribution from them in respect of compensation on the ground that the disease was of such a respondent, there being no suspensory agreement, and no suspensory award." 1. Functions of certifying surgeons and medical referees. bitrator must determine what, under all the facts of the case, is a fair and proper contribution for the former employers to make to the compensation which the last employer had to pay, and he is not to limit himself to merely calculating The sole function of the certifying the number of days during which the surgeon, and of the medical referee on man was in the respective employ- appeal, is to determine whether the workments,75 unless there is no special cir- man is suffering from a scheduled discumstance to show that the disease had ease, and is thereby disabled from earnin reality been greatly accelerated by the ing full wages in his employment, and, conduct of some particular employer.76 subject to the provisions of § 8, subsec. A builder's laborer who had contracted 4, to fix the date on which disablement eczematous ulceration from contact with commenced.78 A certificate by the medicement and lime while in the employ- cal referee allowing an appeal by the ment of the respondent, and who was workman from the refusal of the certivoluntarily paid compensation for the fying surgeon to give the workman a time he was disabled, cannot, over a year certificate of disablement in respect of thereafter, when he is in the employment a disease falling within the statute, and of other employers and the disease re-fixing the date of the disablement, is appears, recover compensation from the conclusive.79 But the county court nature as to be contracted by gradual process, and that the workman had been employed by the other employers within twelve months of his disablement, the defendant employers need not allege that the disease had been actually contracted at any particular date, or prove that it was contracted while the claimant was in the service of the previous employers. Mal linder v. Moores [1912] 2 K. B. (Eng.) 124, 81 L. J. K. B. N. S. 714, 106 L. T. N. S. 487, [1912] W. C. Rep. 257, [1912] W. N. 97, 5 B. W. C. C. 362. The ground of this decision was that the county court judge had misdirected himself in that he considered the case to fall within § 8 (1) (e) (ii), which applies where the employer claims that the disease was wholly contracted in another employment. The disease, mercurial poisoning, was within the provisions of § 8 (1) (c) (iii), and the employment with the third person had been within the twelve months. 75 In Barron v. Seaton Burn Coal Co. [1915] 1 K. B. (Eng.) 756, 112 L. T. N. S. 897, 31 Times L. R. 199, 84 L. J. K. B. N. S. 682, [1915] W. C. & Ins. Rep. 132, [1915] W. N. 70, 59 Sol. Jo. 315, 8 B. W. C. C. 218, the court of appeal allowed an appeal from an award of the county court judge in the case of a miner who was suffering from nystagmus, and who, during the twelve months preceding the award, had worked for five different employers engaged in mining. The county court judge ordered each of the five employers to contribute in proportion to the period during which the man was employed with them. One of the employers claimed that the working arrangements at his colliery were so good and so far superior to those of the other collieries that it was not right that the other employers should bear simply a ratable proportion of the total sum, having regard only to the number of days or weeks in which the man was employed at their colliery. The county court judge, however, was of the opinion that the provision in question was intended to obviate the necessity of making such inquiries in the case of a disease acquired gradually. The court of appeal, however, took the contrary view. 76 Lees v. Waring (1909 C. C.) 127 L. T. Jo. (Eng.) 498, 2 B. W. C. C. 474. 77 Timpson v. Mowlem (1915) 112 L. T. N. S. (Eng.) 885, 8 B. W. C. C. 178. The court pointed out that the workman should have proceeded against his last employers, and that they had power to call in the respondent and make out, if they could, that the industrial disease was really contracted when the workman was in the respondent's employ, and not while in the employment of the last employers. 78 The sheriff as arbitrator should refuse to accept the report of a medical referee to whom the matter was referred under § 8 (1) (f), where the latter, subject to a note appended, dismissed the appeal. Winters v. Addie & Sons' Collieries [1911] S C. 1174, 48 Scot. L. R. 940. A medical referee to whom a case is referred under § 8 (1) (f) of the act has no power to dismiss an appeal by the employers from an award, with the restriction that the applicant "is now able to resume his ordinary work." Garrett v. Waddell [1911] S. Č. 1168, 48 Scot. L. R. 937. Where a certifying surgeon had given a certificate that a workman was suffering from an industrial disease, but in the certificate fixed the commencement of the disablement at the time of the examination, which, under the circumstances of the case, prevented the workman from taking proceedings for compensation under the act, the workman is aggrieved under § 8 subsec. 1 (iii) (f), and has a right of appeal to the medical referee. Birks v. Stafford Coal & I. Co. [1913] 3 K. B. (Eng.) 686, 109 L. T. N. S. 290, 82 L. J. K. B. N. S. 1334, [1913] W. N. 238, 57 Sol. Jo. 729, 6 B. W. C. C. 617. 79 Chuter v. Ford [1915] 2 K. B. (Eng.) 113, 84 L. J. K. B. N. S. 703, [1915] W. C. judge is entitled to ignore a certificate | erees under this act shall, subject to regof a certifying surgeon to the effect that ulations made by the Treasury, be paid a bookbinder was suffering from lead out of moneys provided by Parliament. poisoning, but that there were none of the usual symptoms, and that the disease could only be inferred from the man's history of the case. 80 A medical referee should not sit with the county court judge as assessor upon an issue upon which he had already given his opinion as medical referee.81 Where a medical referee has been employed as a medical practitioner in connection with any case by or on behalf of an employer or workman, or by any insurers interested, he shall not act as medical referee in that case. (2) The remuneration of an arbitrator appointed by a judge of county courts under the second schedule to this act XI. Application to workmen under the shall be paid out of moneys provided by Crown (89). a. Text of $9. Section 9 (1) This act shall not apply to persons in the naval or military service of the Crown, but otherwise shall apply to workmen employed by or under the Crown to whom this act would apply if the employer were a private person: Provided, that in the case of a person employed in the private service of the Crown, the head of that department of the Royal Household in which he was employed at the time of the accident shall be deemed to be his employer. (2) The Treasury may, by warrant laid before Parliament, modify for the purposes of this act their warrant made under § 1 of the superannuation act 1887, and, notwithstanding anything in that act, or any such warrant, may frame schemes with a view to their being certified by the registrar of friendly societies under this act. [This section is the same as § 8 of the original act, except that the proviso in subsec. 1 is new.] Parliament in accordance with regulations made by the Treasury [new.] XIII. Detention of ships whose owners are liable for compensation (§ 11). a. Text of $ 11. Section 11 (1) If it is alleged that the owners of any ship are liable as such owners to pay compensation under this act, and at any time that ship is found in any port or river of England or Ireland, or within 3 miles of the coast thereof, a judge of any court of record in England or Ireland may, upon its being shown to him, by any person applying in accordance with the rules of the court, that the owners are probably liable as such to pay such compensation, and that none of the owners reside in the United Kingdom, issue an order directed to any officer of customs or other officer named by the judge, requiring him to detain the ship until such time as the owners, agent, master, or consignee thereof have paid such compensation, or have given security, to be approved by the judge, to abide the event of any proceed XII. Appointment and remuneration of ings they may be instituted to recover arbitrators and medical referees ($ 10). a. Text of $ 10. Section 10 (1) The Secretary of State may appoint such legally qualified medical practitioners to be medical referees for the purpose of this act as he may, with the sanction of the Treasury, determine, and the remuneration of, and other expenses incurred by, medical ref& Ins. Rep. 104, [1915] W. N. 53, 31 Times L. R. 187, 8 B. W. C. C. 160. It was further held that the certificate of the medical referee was not irregular and invalid by reason of the omission of the statement that the workman was disabled by the disease from earning full wages at the work at which he was employed. 80 Mapp v. Straker [1914] W. C. & Ins. Rep. (Eng.) 98, 7 B. W. C. C. 18. 81 Wallis v. Soutter [1915] W. N. (Eng., 68, 59 Sol. Jo. 285, [1915] W. C. & Ins. Rep. 113, 8 B. W. C. C. 130. such compensation, and to pay such compensation and costs as may be awarded thereon; and any officer of customs or other officer to whom the order is directed shall detain the ship accordingly. (2) In any legal proceeding to recover such compensation, the person giving security shall be made defendant, and the production of the order of the judge, made in relation to the security, shall be conclusive evidence of the liability of the defendant to the proceeding. (3) Section 692 of the merchant shipping act 1894 shall apply to the detention of a ship under this act as it applies to the detention of a ship under that act and, if the owner of a ship is a corposection be deemed to reside in the United ration, it shall for the purposes of this Kingdom if it has an office in the United Kingdom at which service of writs can be effected [new]. b. Proceedings under this section. An appeal from an order of the county court judge detaining a vessel under 11 lies to the provisional court, and not to the court of appeal.82 XIV. Reports of injuries (§ 12). a. Text of $ 12. Section 12 (1) Every employer in any industry to which the Secretary of State may direct that this action shall apply shall, on or before such day in every year as the Secretary of State may direct, send to the Secretary of State a correct return specifying the number of injuries in respect of which compensation has been paid by him under this act during the previous year, and the amount of such compensation, together with such other particulars as to the compensation as the Secretary of State may direct, and in default of complying with this section shall be liable, on conviction under the summary jurisdiction acts, to a fine not exceeding £5. (2) Any regulations made by the Secretary of State containing such directions as aforesaid shall be laid before both Houses of Parliament as soon as may be after they are made [new]. XV. Definition clauses (§ 13). Section 13. In this act, unless the context otherwise requires, "Employer" includes any body of persons, corporate or unincorporate, and the legal personal representative of a deceased employer, and where the services of a workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship, the latter shall, for the purposes of this act, be deemed to continue to be the employer of the workman whilst he is working for that other per son; "Workman" does not include any person employed otherwise than by way of manual labor whose remuneration exceeds £250 a year, or a person whose employment is of a casual nature, and who is employed otherwise than for the purposes of the employer's trade or business, or a member of a police force, or an outworker, or a member of the employer's family dwelling in his house, but, save as aforesaid, means any per 82 Panagotis v. The Pontiac [1912] 1 K. B. (Eng.) 74 [1911] W. N. 221, 28 Times L. R. 63, 56 Sol. Jo. 71. son 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, and whether the contract is expressed or implied, is oral or in writing; Any reference to a workman who has been injured shall, where the workman is dead, include a reference to his legal personal representative or to his dependents or other person to whom or for whose benefit compensation is payable; "Dependents" means such of the members of the workman's family as were wholly or in part dependent upon the earnings of the workman at the time of his death, or would but for the incapacity due to the accident have been so dependent, and where the workman, being the parent or grandparent of an illegitimate child, leaves such a child so dependent upon his earnings, or, being an illegitimate child, leaves a parent or grandparent so dependent upon his earnings, shall include such an illegitimate child and parent or grandparent respectively; "Member of a family" means wife or husband, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother, half-sister; "Ship," "vessel," "seaman," and "port" | have the same meanings as in the merchant shipping act 1894; "Manager," in relation to a ship, means the ship's husband or other person to whom the management of the ship on behalf of the is intrusted by or owner; "Police force" means a police force to which the police act 1890, or the police (Scotland) act 1890, applies, the City of London Police Force, the Royal Irish Constabulary, and the Dublin Metropolitan Police Force; "Outworker" means a person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished, or repaired, or adapted for sale, in his own home or on other premises not under the control or management of the person who gave out the materials or articles; The exercise and performance of the powers and duties of a local or other public authority shall, for the purpose of this act, be treated as the trade or business of the authority; "County court," "judge of the county court," "registrar of the county court," "plaintiff," and "rules of court," as respects Scotland, mean respectively sher |