question of law. Section 13 provides that any reference to a workman shall, if the workman be dead, include a reference to his personal representative or to his dependents. Under these provisions a question has arisen whether the father of a deceased workman was entitled to have his action remanded to the court of session for a jury trial. The House of Lords did not directly decide the question,68 but the court of session, in a subsequent decision, took the position that the father did not have such right.69

XVII. Termination of contracts reliev

has been so modified as to conform, with the provisions of this act as to schemes.

(4) If any such scheme has not been so recertified before the expiration of six months from the commencement of this act, the certificate thereof shall be revoked.

[Section 15 is an elaboration of § 9 of the earlier act, the additions being sufficiently indicated in the text itself.]

b. Effect of this section.

A scheme of compensation under § 3 of the act of 1897 does not, unless' recertified under § 15 of the act of 1906,

ing employers from liability; recerti- apply to an accident happening after the fication of schemes (§ 15).

a. Text of § 15.

act came in operation, but within the six months mentioned in § 15, subs. 4.70

A workman, who entered on his em

Section 15 (1) Any contract (other ployment after July 1st, 1907, is not than a contract substituting the provider that act by having agreed to acbarred from obtaining compensation un

sions of a scheme certified under the workmen's compensation act 1897 for the provisions of that act) existing at the commencement of this act, whereby a workman relinquishes any right to compensation from the employer for personal injury arising out of and in the course of his employment, shall not, for the purposes of this act, be deemed to continue after the time at which the

workman's contract of service would de

termine if notice of the determination thereof were given at the commencement of this act.

(2) Every scheme under the workmen's compensation act 1897, in force at the commencement of this act, shall, if recertified by the registrar of friendly societies, have effect as if it were a scheme under this act.

(3) The registrar shall recertify any such scheme if it is proved to his satisfaction that the scheme conforms, or

68 Where a father whose son had met his death by accident sought damages either at common law or alternatively under the employers' liability act of 1880, from the employers of the son, the father is entitled, to have the cause remitted for trial by jury to the court of session; for if such right was taken away by § 13 and § 14 | of the workmen's compensation act, it was restored by the sheriff court act of 1907, § 30. Banknock Coal Co. v. Lawrie [1912] A. C. (Eng.) 105, 81 L. J. P. C. N. S. 89, 106 L. T. N. S. 283, [1912] W. C. Rep. 1, 5 B. W. C. C. 209, 28 Times L. R. 136, [1912] S. C. 20, 49 Scot. L. R. 98.

cept the provisions of the scheme certified under the act of 1897, but which had not been recertified under the act of 1906 before the employment was entered into. 71

The six months allowed for recertifying schemes under the act of 1906 "from the commencement of this act" run from July 1, 1907, the date when the act took

effect.72

workmen shall be taken before the regIt is not necessary that a ballot of the istrar can recertify his scheme under § 15.73

XVIII. Repealing clause (§ 16). a. Text of $ 16.

Section 16 (1) This act shall come into operation on the 1st day of July, 1907, but, except so far as it relates to references to medical referees, and proceedings consequential thereon, shall not of sessions otherwise than by appeal on a question of law. Cook v. Bonnybridge Silica & Fireclay Co. (1914) 51 Scot. L. R. 529, 7 B. W. C. C. 907.

70 Moss v. Great Eastern R. Co. [1909] 2 K. B. (Eng.) 274, 78 L. J. K. B. N. S. 1048, 100 L. T. N. S. 747, 25 Times L. R. 466.

71 Wallace v. Hawthorne [1908] S. C. 713, 45 Scot. L. R. 547.

72 Morter v. Great Eastern R. Co. (1908; C. C.) 126 L. T. Jo. (Eng.) 171, 2 B. W. C. C. 480.

73 Godwin v. Lord Comrs. of Admiralty [1913] A. C. (Eng.) 638, 82 L. J. K. B. 69 An action by a father against the N. S. 1126, 109 L. T. N. S. 428, 29 Times employers of his deceased son, at common L. R. 774, [1913] W. N. 267, 6 B. W. law and under the liability act of 1880, C. C. 788, affirming Court of Appeal [1912] is an action "by a workman against his 2 K. B. 26, 81 L. J. K. B. N. S. 532, 106 employer," within the meaning of § 14 of L. T. N. S. 136, 28 Times L. R. 229, [1912] the act, and cannot be appealed to the court W. C. Rep. 49, 5 B. W. C. C. 229.

(b) Where total or partial incapacity sion reversing a decision of an arbiter for work results from injury, a weekbased on the report of a medical referee ly payment during the incapacity not exwill not lie under sched. II., ¶ 17 (b), ceeding 50 per cent of his average weekof the act of 1906, in a proceeding under ly earnings during the previous twelve the act of 1897 in regard to an accident months, if he has been so long employed, which occurred before the commence- but if not, then for any less period ment of the act of 1906, notwithstanding the exception in § 16, subs. 1, of the latter act, as to "references to medical referees and proceedings consequential

into concurrent contracts of service, such examination has taken place [¶ 3 with two or more employers under which of the original act]. he worked at one time for one such employer and at another time for another such employer, his average weekly earnings shall be computed as if his earnings under all such contracts were earnings in the employment of the employer for whom he was working at the time of the accident;

(c) Employment by the same employer shall be taken to mean employment by the same employer in the grade in which the workman was employed at the time of the accident, uninterrupted by absence from work due to illness or any other unavoidable cause;

(d) Where the employer has been accustomed to pay to the workman a sum to cover any special expenses entailed on him by the nature of his employment, the sum so paid shall not be reckoned as part of the earnings.

[Paragraph 2 is new.]

(5) The payment in the case of death shall, unless otherwise ordered as hereinafter provided, be paid into county court, and any sum so paid into court shall, subject to rules of court and the provisions of this schedule, be invested, applied, or otherwise dealt with by the court in such manner as the court in its discretion thinks fit for the benefit of the persons entitled thereto under this act; and the receipt of the registrar of the court shall be a sufficient discharge in respect of the amount paid in:

Provided that, if so agreed, the payment in case of death shall, if the workman leaves no dependents, be made to his legal personal representative, or, if he has no such representative, to the person to whom the expenses of medical attendance and burial are due [similar to 4 of the original act].

(6) Rules of court may provide for the transfer of money paid into court under this act from one court to another, whether or not the court from which it is to be transferred is in the same part of the United Kingdom as the court to which it is to be transferred [new].

(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 ex- (7) Where a weekly payment is payceed the difference between the amount able under this act to a person under of the average weekly earnings of the any legal disability, a county court may, workman before the accident and the on application being made in accordance average weekly amount which he is earn- with rules of court, order that the weeking or is able to earn in some suitable ly payment be paid during the disabilemployment or business after the ac-ity into court, and the provisions of this cident, but shall bear such relation to the amount of that difference as under the circumstances of the case may appear proper.

[Paragraph 2 of the original schedule reads as follows:

In fixing the amount of the weekly payment, regard shall be had to the difference between the amount of the average weekly earnings of the workman before the accident, and the average amount which he is able to earn after the accident, and to any payment, not being wages, which he may receive from the employer in respect of his injury during the period of his incapacity.]

(4) Where a workman has given notice of an accident, he shall, if so required by the employer, submit himself for examination by a duly qualified medical practitioner provided and paid by the employer, and if he refuses to submit himself to such examination, or in any way obstructs the same, his right to compensation, and to take or prosecute any proceeding under this act in relation to compensation, shall be suspended until

schedule with respect to sums required by this schedule to be paid into court shall apply to sums paid into court in pursuance of any such order [new].

(8) Any question as to who is a dependent shall, in default of agreement, be settled by arbitration under this act, or, if not so settled before payment into court under this schedule, shall be settled by the county court, and the amount payable to each dependent shall be settled by arbitration under this act, or, if not so settled before payment into court under this schedule, by the county court. Where there are both total and partial dependents, nothing in this schedule shall be construed as preventing the compensation being allotted partly to the total and partly to the partial dependents [similar to 5th paragraph of the act of 1897; last sentence is new].

(9) Where, on application being made in accordance with rules of court, it appears to a county court that, on account of neglect of children on the part of a widow, or on account of the variation of the circumstances of the various de

pendents, or for any other sufficient cause, an order of the court, or an award as to the apportionment amongst the several dependents of any sum paid as compensation, or as to the manner in which any sum payable to any such dependents is to be invested, applied, or otherwise dealt with, ought to be varied, the court may make such order for the variation of the former order or the award as in the circumstances of the case the court may think just [new]. (10) Any sum which under this schedule is ordered to be invested may be invested in whole or in part in the Postoffice Savings Bank by the registrar of the county court in his name as registrar [¶ 7 of the original act].

schedule, was omitted from ¶ 14 of the later act:

But if the workman objects to an examination by that medical practitioner, or is dissatisfied by the certificate of such practitioner upon his condition, when communicated to him, he may submit himself for examination to one of the medical practitioners appointed for the purposes of this act, as mentioned in the second schedule to this act, and the certificate of that medical practitioner as to the condition of the workman at the time of the examination shall be given to the employer and workman, and shall be conclusive evidence of that condition].

(15) A workman shall not be required (11) Any sum to be so invested may to submit himself for examination by a be invested in the purchase of an an-medical practitioner under paragraph nuity from the National Debt Commis- (4) or paragraph (14) of this schedule, sioners through the Postoffice Savings otherwise than in accordance with regBank, or be accepted by the Postmaster General as a deposit in the name of the registrar as such, and the provisions of any statute or regulations respecting the limits of deposits in savings banks, and the declaration to be made by a depositor, shall not apply to such sums [8 of the original act].

ulations made by the Secretary of State, or at more frequent intervals than may De prescribed by those regulations.

Where a workman has so submitted himself for examination by a medical practitioner, or has been examined by a medical practitioner selected by himseir, and the employer or the workman, as the case may be, has within six days after such examination furnished the otner with a copy of the report of that practitioner as to the workman's con

(12) No part of any money invested in the name of the registrar of any county court in the Postoffice Savings Bank under this act shall be paid out, except upon authority addressed to the Post-aition, then, in the event of no agreemaster General by the Treasury or, subject to regulations of the Treasury by the judge or registrar of the county court 9 of the original act].

ment being come to between the employer and the workman as to the workman's condition or fitness for employment, the registrar of a county court, on application being made to the court by both parties, may, on payment by the applicants of such fee, not exceeding £1, as may be prescribed, refer the matter to a medical referee.

(13) Any person deriving any benefit | from any moneys invested in a postoffice savings bank under the provisions of this act may nevertheless open an account in a postoffice savings bank or in any other savings bank in his own name The medical referee to whom the matwithout being liable to any penalties im-ter is so referred shall, in accordance posed by any statute or regulations in respect of the opening of accounts in two savings banks, or of two accounts in the same savings bank [¶ 10 of the original act].

(14) Any workman receiving weekly payments under this act shall, if so required by the employer, from time to time submit himself for examination by a duly qualified medical practitioner provided and paid by the employer. If the workman refuses to submit himself to such examination, or in any way obstructs the same, his right to such weekly payments shall be suspended until such examination has taken place. [The following clause, forming part of the first sentence in ¶ 11 of the earlier

with regulations made by the Secretary of State, give a certificate as to the condition of the workman and his fitness. for employment, specifying, where necessary, the kind of employment for which he is fit, and that certificate shall be conclusive evidence as to the matters so certified.

Where no agreement can be come to between the employer and the workman as to whether or to what extent the incapacity of the workman is due to the accident, the provisions of this paragraph shall, subject to any regulations made by the Secretary of State, apply as if the question were a question as to the condition of the workman.

If a workman, on being required so to

do, refuses to submit himself for ex- (18) If a workman receiving a weekamination, by a medical referee to whom | ly payment ceases to reside in the Unitthe matter has been so referred as ed Kingdom, he shall thereupon cease aforesaid, or in any way obstructs the to be entitled to receive any weekly same, his right to compensation and to payment, unless the medical referee certake or prosecute any proceeding under tifies that the incapacity resulting from this act in relation to compensation, or, the injury is likely to be of a permanent in the case of a workman in receipt of nature. If the medical referee so cera weekly payment, his right to that week-tifies, the workman shall be entitled to ly payment, shall be suspended until receive quarterly the amount of the weeksuch examination has taken place. ly payments accruing due during the preRules of court may be made for pre- ceding quarter so long as he proves, in scribing the manner in which documents such manner and at such intervals as are to be furnished or served and ap- may prescribed by rules of court, his plications made under this paragraph, identity and the continuance of the inand the forms to be used for those pur-capacity in respect of which the weekposes, and, subject to the consent of the ly payment is payable [new]. Treasury, as to the fee to be paid under this paragraph [new].

(19) A weekly payment, or a sum paid by way of redemption thereof, shall not (16) Any weekly payment may be re- be capable of being assigned, charged, or viewed at the request either of the em- attached, and shall not pass to any other ployer or of the workman, and on such person by operation of law, nor shall any review may be ended, diminished, or in-claim be set off against the same [same creased, subject to the maximum above as ¶ 14 of the original act]. provided; and the amount of payment (20) Where under this schedule a shall, in default of agreement, be set-right to compensation is suspended, no tled by arbitration under this act; Pro- compensation shall be payable in respect vided that where the workman was at of the period of suspension [new]. the date of the accident under twenty- (21) Where a scheme certified under one years of age, and the review takes this act provides for payment of complace more than twelve months after the pensation by a friendly society, the proaccident, the amount of the weekly pay-visions of the proviso to the first subs. ment may be increased to any amount of § 8, § 16, and § 41 of the friendly not exceeding 50 per cent of the weekly societies act 1896, shall not apply to sum which the workman would probably such society in respect of such scheme have been earning at the date of the re- [¶ 15 of the original act]. view if he had remained uninjured, but not in any case exceeding £1 [same as ¶ 12, except that the proviso is new].

of the original act].

b. Meaning of phrase "where death re

sults from the injury" (¶ 1a).

Death may be the result of the injury within the meaning of this paragraph of the act, even though, in fact, it may not be the natural or probable consequence thereof;

(22) In application of this act to Ireland the provisions of the county officers and courts (Ireland) act 1877, with re(17) Where any weekly payment has been continued for not less than six office Savings Bank under that act shall spect to money deposited in the Postmonths, the liability therefor may, on application by or on behalf of the emolice Savings Bank under this act [¶ 17 apply to money invested in the Postployer, be redeemed by the payment of a lump sum of such an amount as, where the incapacity is permanent, would, if invested in the purchase of an immediate life annuity from the National Debt Commissioners through the Postoffice Savings Bank, purchase an annuity for the workman equal to 75 per cent of the annual value of the weekly payment, and, as in any other case, may be settled by arbitration under this act; and such lump sum may be ordered by the committee or arbitrator or judge of the county court to be invested or otherwise applied for the benefit of the person entitled thereto : Provided that nothing in this paragraph shall be construed as preventing agreements being made for the redemption of a weekly payment by a lump sum [elaboration of ¶ 13 of the original act].

75 as where the death resulted

75 Dunham v. Clare [1902] 2 K. B. (Eng.) 292, 71 L. J. K. B. N. S. 683, 66 J. P. 612, 50 Week. Rep. 596, 86 L. T. N. S. 751, 18 Times L. R. 645, 4 W. C. C. 102. In this case a workman injured his foot and erysipelas supervened. Collins, M. R., said: "It is incumbent upon the applicant for compensation to show that there was an accident which caused injury, and that death resulted from that injury. When the ap: plicant has shown that, he has done all that is necessary to establish the claim