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encies and crudities of the acts them By numerous cross references between selves, and many others are due to the the division of the note discussing the varying views taken by the different English cases, and that treating the judges before whom the questions arose. American decisions, it is hoped to facili
The compensation principle originated tate the comparison of decisions conin Continental Europe long before it was struing similar provisions in the various adopted in England, and statutes em- acts. bracing this principle were in force in upwards of twenty-five jurisdictions be- Part B. English and Colonial decisions. fore any similar act was passed in the United States,
II. In general. The first English act was passed in 1897, and the provisions of this act were The complete text of the English act extended to agricultural laborers by the of 1906 is given below, with such referact of 1900. The second act, passed in ences to the act of 1897 as will indicate 1906, greatly extended the application of to the reader the material changes made. the statute, and simplified some of the Of course, the most essential change was complicated sections found in the earlier the extension of the remedy to all emact.
ployments, instead of to certain desigThe compensation principle has spread nated employments. Wherever there has so quickly and so broadly among the been a change of sufficient importance American jurisdictions that it is proba- to be noted, brackets have been used to ble that, in the near future, compensa- show the change, and bracketed matter tion acts will be in force in all of the without further explanation indicates states of the Union, and that these acts parts of the original act which were will be harmonized and the decisions omitted in the act of 1906. Where the thereon grow more uniform, so that there provisions of the two acts are the same, will be no more difficulty in construing no attempt has been made to differentiand applying these acts than in applying ate the cases. any other statutes which are applicable In England, appeals from the findings to so broad a field.
of the arbitrator upon questions of law Considering the length of the various lie only to the court of appeal, and the statutes, it would be impracticable even great body of decisions is from that if it would be useful, to print all of the court. When the case has been decided statutes in full; but as the American by some other court, that fact will be statutes are patterned more or less close- noted unless it appears from the conly after the English act, it has been text or from the form of the citation. deemed wise to print the text of the The same is true in respect to the Irish latter in full.
decisions. In Scotland, appeals lie to The English and Colonial decisions the court of sessions, and if the deciwill be discussed together, and the sion is by any other court, that fact American cases will then be taken up will also be noted. and grouped, so far as possible, accord The following British colonies, among ing to the principle involved, although as possibly others, have statutes modelled the acts differ radically in many particu- closely after the English Acts: Alberta, lars, and the decisions covering any one British Columbia, Manitoba, Nova Scotia, point are not very plentiful, logical treat- Quebec, New South Wales, New Zeament cannot in all cases be attained. land, Queensland, and Western Australia. think I may properly say that the diffi- gether with the dates of first enactment, culties of construction are so great that it are: Germany (1884); Austria (1887); Noris not desirable that judges should decide way (1894); Finland (1895); Great Britain more than is absolutely necessary for the (1897); Denmark (1898); Italy (1898); decision of the particular case before them.” France (1898); Spain (1900); New Zealand
4 In Sheehy v. Great S. & W. R. Co. (1900); South Australia (1900); New South  W. C. & Ins. Rep. 404, 47 Ir. Law Wales (1901); Netherlands (1901); Greece Times 161, 6 B. W. C. C. 927, Holmes, L. J., (1901); Sweden (1901); Western Australia said: “There is nothing more tiresone, (1902); Luxembourg (1902); British Coand, I might add, more unprofitable than lumbia (1902); Russia (1903); Belgium to try to reconcile propositions and dicta (1903); Cape of Good Hope (1905); Queensof judges, including my own, relating to land (1905); Hungary (1907); Transvaal the workmen's compensation act, and I (1907); Alberta (1908); Quebec (1909). shall not now attempt the task.”
The statutes in force in those twenty-six 5 “According to Bulletin No. 90_(Septem- jurisdictions in 1909 are summarized in the ber 1910) of the United States Bureau of same place.” Article by Eugene Wam. Labor, pp. 723–748, the workmen's compen- baugh, 25 Harvard L. Rev. 132. sation acts outside the United States, to
The Colonial cases will be discussed in by arbitration, in accordance with the connection with the British cases in second schedule to this act. volving similar points.
(4) If, within the time hereinafter in
this act limited for taking proceedings, III. Application of the statute gener.
an action is brought to recover damages ally ($ 1).
independently of this act for injury As to the application of the statute caused by any accident, and it is deterin cases of industrial diseases, see post, mined in such action that the injury is 106.
one for which the employer is not liable
in such action, but that he would have a. Text of $ 1.
been liable to pay compensation under Section 1 (1). If in any employment the provisions of this act, the action [to which this act applies] personal in- shall be dismissed; but the court in jury by accident arising out of and in which the action is tried shall, if the the course of the employment is caused plaintiff so choose, proceed to assess to a workman, his employer shall, sub- such compensation, but may deduct from ject as hereinafter mentioned, be liable such compensation all or part of the to pay compensation in accordance with costs which, in its judgment, have been the first schedule to this act.
caused by the plaintiff bringing the ac(2) Provided that (a) the employer tion instead of proceeding under this shall not be liable under this act in re-act. In any proceeding under this subspect of any injury which does not dis- section, when the court assesses the comable the workman for a period of at pensation it shall give a certificate of least one (two, in the original act] week the compensation it has awarded and the from earning full wages at the work at directions it has given as to the deducwhich he was employed :
tion for costs, and such certificate shall (b) When the injury was caused by have the force and effect of an award the personal negligence or wilful act of under this act. the employer or of some person for (5) Nothing in this act shall affect whose act or default the employer is any proceeding for a fine under the enresponsible, nothing in this act shall af- actments relating to mines, factories, or fect any civil liability of the employer, workshops, or the application of any but in that case the workman may, at such fine, but if any such fine, or any his option, either claim compensation un- part thereof, has been applied for the der this act or take proceedings inde- benefit of the person injured, the amount pendently of this act; but the employer so applied shall be taken into account in shall not be liable to pay compensation estimating the compensation under this for injury to a workman by accident act.6 arising out of and in the course of the b. “Injury by accident” (8 1, subsec. employment, both independently of and
1). also under this act, and shall not be liable to any proceedings independently of As to what constitutes an "accident" this act, except in case of such personal or "personal injury” within the meaning negligence or wilful act as aforesaid: of the American statutes, see post, 227. (c) If it is proved that the injury to
There has been considerable conflict as a workman is attributable to the serious to the meaning of the word "accident” and wilful misconduct of that workman, as used in the British act. Lord Halsany compensation claimed in respect of bury has said that it was to be interthat injury shall, unless the injury re- preted according to its ordinary and sults in death or serious and permanent popular meaning, and similar language disablement, be disallowed, the excep- was used in another case by Lord tion as to injuries resulting in death or
Macnaghten.8 But in an Irish case, the serious and permanent disablement was Lord Chancellor observed that “the word not in the original act.
6 The enactments here referred to are (3) If any question arises in any pro- the coal mines regulation act 1887, the ceedings under this act as to the lia- metalliferous mines regulation act 1872, bility to pay compensation under this act and the factory and workshop act 1901. (including any question as to whether 7 Brintons v. Turvey (1905) A. C. (Eng.) the person injured is a workman to whom 233, 74 L. J. K. B. N. S. 474, 53 Week. Rep. this act applies), or as to the amount 641, 92 L. T. N. S. 578, 21 Times L. R. 444,
2 Ann. Cas. 137. or duration of compensation under this
8 Fenton v. Thorley (1903] A. C. (Eng.) act, the question, if not settled by agree-443, 72 L. J. K. B. N. s. 787, 52 Week. Rep. ment, shall, subject to the provisions of | 81, 89 L. T. N. S. 314, 19 Times L. R. 684. the first schedule to this act, be settled ' In this case Lord Lindley said that the
'accident' has, when used in this stat-, In the House of Lords, an accident has ute, long ceased to have the meaning been defined as "an unlooked-for or unthe man in the street would attribute to toward event which was not expected or
designed; and as “an unintended and In a comparatively early case in the unexpected occurrence which produces court of appeal, it was said that the hurt or loss;" 12 it includes or denotes word involves the idea of something for any unexpected personal injury resulttuitous and unexpected.10
But the use
ing to the workman, in the course of his of the word “fortuitous” has been criti- employment, from any unlooked for miscized in a House of Lords decision as the injury is an untoward event, not ex
hap or occurrence." 18 Whether or not meaning either just the same as acci
pected, is to be determined from the dental, or else introducing the element standpoint of the workman, and not of “haphazard,” which element was mis- from a medical aspect.14 leading, and not warranted by the act; It is well settled that to be entitled to and it was held that the word "acci compensation for "personal injury by dental” was used in its ordinary and accident” there must be a definite time, popular sense. 11
place, and circumstance to which the inword is not a technical legal word with a , from a steel plate with a cold chisel was clearly defined meaning.
injured by a piece of the steel so chipped 9 Sheerin v. Clayton (1910] 2 I. R. (Ir.) off, which struck him in the eye. Neville 105, 3 B. W. C. C. 583.
v. Kelly Bros. (1907) 13 B. C. 125. The 10 Hensey v. White (1900) 1 Q. B. (Eng.) somewhat singular contention rejected by 481, 81 L. T. N. S. 767, 48 Week. Rep. 257, the court was that the occurrence in ques69 L. J. Q. B. N. S. 188, 63 J. P. 804, 16 tion was an expected liability naturally Times L. R. 64.
resulting from the occupation in which the 11 Fenton v. Thorley (1903] A. C. (Eng.) | workman was engaged, and therefore did 443, 72 L. J. K. B. N. S. 787, 53 Week. Rep. not involve the element of the fortuitous, 81, 89 L. T. N. S. 314, 19 Times L. R. 684. apart from which an "accident” is not Lord Macnaghten said: "It does seem predicable. to me extraordinary that anybody should 12 In Ismay v. Williamson  A. C. suppose that when the advantage of insur- (Eng.) 437, 77 L. J. P. C. N. Š. 107, 99 L. ance against accident at their employers' T. N. S. 595, 24 Times L. R. 881, 52 Sol. Jo. expense was being conferred on workmen, 713, a workman engaged to rake ashes Parliament could have intended to exclude from the furnaces of a steamship suffered from the benefit of the act some injuries a heat stroke. It was contended that this ordinarily described as “accidents' which was not an accident, but Lord Ashbourne beyond all others merit favorable consider said: "If the act is to be interpreted acation in the interest of workmen and em cording to its ‘ordinary and popular meanployers alike. A man injures himself by ing,' as Lord Halsbury said was right in doing some stupid thing, and it is called Brintons V. Turvey (1905] A. C. (Eng.) an accident, and he gets the benefit of the 233, 74 L. J. K. B. N. S. 474, 53 Week. Rep. insurance. It may even be his own fault, 641, 92 L. T. N. S. 578, 21 Times L. R. 444, and yet compensation is not to be disal. | 2 Ann. Cas. 137, would not the generality lowed unless the injury is attributable to of mankind say that what occurred was an 'serious and wilful misconduct on his part. injury caused by an accident? The authorA man injures himself suddenly and unex ities support this view. In Fenton v. Thorpectedly by throwing all his might and ley (Eng.) supra, where a man ruptured all his strength and all his energy into his himself in an exertion during his employ. work, by doing his very best and utmost for ment, Lord Macnaghten laid down that an his employer, not sparing himself or taking 'accident is used in the popular and ordinary thought of what may come upon him, and sense of the word, as denoting an unlookedthen he is to be told that his case is out for mishap, or an untoward event which side the act because he exerted himself is not expected or designed.' Lord Lindley deliberately, and there was an entire lack in the same case said that in the act the of the fortuitous element! I cannot think word is used in a very loose way,' that it that that is right. I do think that if such meant ‘any unintended and unexpected ocwere held to be the true construction of currence which produces hurt or loss.'” the act, the result would not be for the 13 Lord Shand in Fenton v. Thorley (Eng.) good of the men, nor for the good of the supra. employers either, in the long run. Certain- 14 Fulford v. Northfleet Coal & Ballast ly it would not conduce to honesty or Co. (1907; C. C.) 1 B. W. C. C. (Eng.) 222. thoroughness in work. It would lead men In Clover v. Hughes  A. C. (Eng.) to shirk and hang back, and try to shift | 242, 3 B. W. C. C. 275, Lord Loreburn, L. C., a burthen which might possibly prove too said: "I cannot agree with the argument heavy for them on to the shoulders of their presented to your Lordships, that you are comrades."
to ask whether a doctor acquainted with Recovery has been allowed where a work the man's condition would have expected it. man while engaged in chipping the burs I Were that the right view, then it would
jury can be referred.15 But an accident meaning as in the act, and to include in the sense of the act need not be disablement from disease, described in an extraneous circumstance.16 The word 0 8 of the act.2 "accident" is not "made inappropriate by If a workman has suffered an injury the fact that the man hurt himself;" 17 by accident, he will not be deprived of or by reason of the fact that "it was compensation merely because something caused by deliberate violence” on the else occurs to produce incapacity; as part of third persons. 18
where he would likewise have been inA nervous shock causing incapacity to capacitated from heart disease, 21 or work is as much "personal injury by where he has been convicted of a crime accident" as is a physical injury.19 and confined in prison.22
Where a scheme, under $ 3, purports It has been pointed out that the statto be intended as a substitute for the ute does not in its terms refer to comact, the word “accident” in the scheme pensation for an “accident,” but to “perwill be construed as having the same 'sonal injuries by accident.” 23 But the not be an accident if a man very liable to after accident); Alloa Coal Co. v. Drylie, fainting fits fell in a faint from a ladder, (Scot.) supra (a case of death from pneuand hurt himself.”
monia following a chill after workman had 15 “Except in the case of these industrial been forced to stand in water for some or scheduled diseases, unless the applicant time.) can indicate the time, the day, and circum These cases overruled in effect Perry v. stance, and place, in which the accident has Baker (1901; C. C.) 3 W. C. C. (Eng.) 29, occurred, by means of some definite event, in which the county court judge drew the the case cannot be brought within the gen- inference, from a number of decisions of eral purview of the act, and does not the court of appeal, that an accident within entitle the workman or his dependents to the meaning of the act must be the result compensation.” Eke v. Hart-Dyke (1910] of some extraneous circumstance. 2 K. B. (Eng.) 677, 3 N. C. C. A. 230.
17 Lord Robertson, in Fenton v. Thorley In Alloa Coal Co. v. Drylie (Ct. of Sess.) (1903] A. C. (Eng.) 443, 72 L. J. K. B. N. Š.  W. C. & Ins. Rep. 213, 6 B. W. C. C. 787, 52 Week. Rep. 81, 89 L. T. N. S. 314, 398, 50 Scot. L. R. 350, Lord Dundas 19 Times L. R. 684. said: "I think one may postulate as a
18 Trim Joint District School v. Kelly result of all the decisions that you must (1914) A. C. (Eng.) 667, 83 L. J. P. C. N. Š. have a definite 'accident of some sort,-not 220, 111 L. T. N. S. 306, 30 Times L. R. necessarily an occurrence extraneous to the 452, (1914) W. N. 177, 58 Sol. Jo. 493, 7 workman,-involving something unusual, B. W. C. C. 274, [1914) W. C. & Ins. Rep. unexpected, and undesigned, to which the 359, 48 Ir. Law Times, 141. injury or death can be unequivocally-or 19 A nervous shock caused by a fatal inat least by a reasonably inferred train of jury to a fellow workman is an “accident." causation in fact-attributed; and also Yates v. South Kirkby, F. & H. Collieries probably, as a corollary, that death from (1910] 2 K. B. (Eng.) 538, 79 L. J. K. B. disease--apart from the industrial diseases N. S. 1035, 103 L. T. N. S. 170, 26 Times specially mentioned in the act of 1906 and L. R. 596, 3 B. W. C. C. 418, 3 N. C. C. A. subsequent statutory rules and orders-is 225. not an 'accident' unless the disease which 20 Leaf v. Furze (Div. Ct.) (1914] 3 K. B. caused death can be definitely collocated in (Eng.) 1068, 83 L. J. K. B. N. S. 1822. the relation of effect to cause with some 21 Harwood v. Wyken Colliery Co.  unusual, unexpected, and undesigned event 2 K. B. (Eng.) 158, 82 L. J. K. B. N. S. 414, arising at an ascertained time out of the 108 L. T. N. S. 283, 29 Times L. R. 290, 57 employment."
Sol. Jo. 300,  W. C. & Ins. Rep. 317, The county court judge is not justified  W. N. 53, 6 B. W. C. C. 225. in finding that there was an accident, where 22 McNally v. Furness  3 K. B. a barber's assistant claimed that his hand (Eng.) 605, 82 L. J. K. B. N. S. 1310, 109 began to smart on January 17th, and upon L. T. N. S. 270, 29 Times L. R. 678, (1913] consulting a doctor on February 15th he W. N. 239, 6 B. W. C. C. 664, (1913] W. C. was found to be suffering from dermatitis. & Ins. Rep. 717. Petschett v. Preis (1915) 31 Times L. R. A different result has been reached in (Eng.) 156. While dermatitis is a schedule an earlier case in the county court. Clay. disease, the applicant did not proceed under ton v. Dobbs (1908) 2 B. W. C. C. (Eng.) $ 8, but under $ 1, on the assumption that 488. he had suffered an accident at the time 23 In Warner v. Couchman  A. C. when he first began to feel his hand smart. (Eng.) 35, 5 B. W. C. C. 177. Lord LoreTo succeed under § 1, there must be a find burn, L. C., said: "I will only say this ing that there had been an accident, which further: To be perfectly strict and acinvolved that something had happened at curate, it is somewhat lax to speak of this the definite time and place.
statute as though it referred to an accident. 16 Euman v. Dalziel (1913] S. C. 246, 50 I am perfectly conscious that I myself, as Scot. L. R. 143, 11913] w. C. & Ins. Rep. well as others, have fallen into that lapsus 49, 6 B. W. C. C. 900 (peritonitis supervened I linguæ; but at times it may be apt to con
compensation to be awarded is not, ly heavy duty is now, by the majority measured by the degree of the injury, of the cases, considered to be an accibut rather by the degree of the inca- dent.25 A different view taken in some pacity which is caused by the injury.24 of the earlier cases must be considered
An examination of the cases cited be- as overruled.26 An accident will not be low will show that it is difficult, if not inferred, however, where the disease or impossible, to reconcile all of the cases injury from which the workman suffered on this very important question of what may or may not have been caused by constitutes an accident.
strain, if there is no evidence of any A strain resulting from overexertion overexertion.27 in attempting to perform some unusual- If the primary cause of the workman's fuse one's idea of what is enacted in this personal injury by "accident.” Boardman v. particular act of Parliament. The act of Scott (1902] i K. B. (Eng.) 43, 71 L. J. K. Parliament does not speak of an accident, B. N. S. 3, 66 J. P. 260, 50 Week. Rep. 184. -it speaks of 'injury by accident arising A workman who, while engaged in mowout of and in the course of the employ- | ing around a field, stooped to straighten ment.'"
up some grain which had been trodden 24 Jones v. Anderson (1914) 84 L. J. P. C. down, and “rung" his leg, which tore N. S. (Eng.) 47, 112 L. T. N. S. 225, 31 muscles and ruptured fibers from which Times L. R. 76,  W. N. 432, 59 Sol. traumatic phlebitis eventually developed, Jo. 159,  W. C. & Ins. Rep. 151, 8 suffered injury by accident. Purse v. Hay. B. W. C. C. 2.
ward (1908; C. C.) 125 L. T. Jo. (Eng.) 25 “If a workman in the reasonable per- 10, 1 B. W. C. C. 216. formance of his duties sustains a physiolog. 26 Internal injuries resulting from an unical injury as the result of the work he is usual strain in lifting heavier articles than engaged in, I consider that this is accidental those which the employee had previously injury in the sense of the statute.” Stewart been handling was held not to arise from "acv. Wilsons & C. Coal Co. (1902) 5 Sc. Sess. cident." Roper v. Greenwood (1901] 83 L. Cas. 5th series (Scot.) 120, per Lord Mc. T. N. S. (Eng.) 471. The doctrine of the Laren. In this case a workman strained court in this case is strikingly similar to his back in replacing a derailed coal hutch the old doctrine of assumption of risk. on the rails.
Smith, M. R., in sustaining the finding of These words were also quoted with ap- the county court judge, said: “The facts proval by Lord Ashbourne in Ismay v. Wil of this case are that the plaintiff was emliamson (1908] A. C. (Eng.) 437, 77 L. J. ployed as a box maker, and upon this ocP. C. N. S. 107, 99 L. T. N. S. 595, 24 Times casion the boxes upon which she had to L. R. 881, 52 Sol. Jo. 713, 42 Ir. Law Times, work were of a larger size than usual; 213, 1 B. W. C. C. 232 (stoker suffered heat everyone knew that they were so. She stroke).
began to work upon these boxes in the A rupture caused by overexertion in at. morning; she found them somewhat too tempting to turn the wheel of a machine heavy for her; she did not give up, but went is an “accident” within the meaning of the on with the work. There was nothing foract. Fenton v. Thorley (1903] A. C. (Eng.) | tuitous or unforeseen as she went on from 443, 72 L. J. K. B. N. S. 787, 52 Week. Rep. one box to another. When she came to the 81, 89 L. T. N. S. 314, 19 Times L. R. 684, seventh box it was just the same as the 5 W. C. C. 1. Lord Macnaghten said: “If others were before it, and there was notha man, in lifting a weight or trying to move ing fortuitous or unforeseen. She strained something not easily moved, were to strain herself and was injured. She says that a muscle, or rick his back, or rupture him the employers are liable to pay her comself, the mishap, in ordinary parlance, would pensation because the injury was caused by be described as an accident. Anybody would accident. Upon those facts the county say that the man had met with an accident court judge came to the conclusion that in lifting a weight, or trying to move some there was no accident at all; that there thing too heavy for him.”
was nothing fortuitous or unforeseen.” A rupture caused by the effort of separat- Injury from a strain caused by lifting ing a plank from one to which it was stuck a bench was held not to arise from acciby ice formed during the preceding night dent. Perry v. Baker (1901; C. C.) 3 W. may properly be found to have been caused C. C. (Eng.) 29. The county court judge by an "accident." Timmins v. Leeds Forge said that this was a narrowed construction Co. (1900) 16 Times L. R. (Eng.) 521, 83 of the act, but that he felt himself bound L. T. N. S. 120.
by Hensey v. White (Eng.) cited in note 10, A workman in normal health was engaged supra. in the course of his duty in removing a 27 A stroke of apoplexy which may or beam from a loom. He was in the act of may not have been brought on by a strain lifting the beam on to his shoulder, when, or overexertion is not an injury suffered finding that it was not evenly balanced, by “accident," where there is no evidence he gave it an extra lift, or hitch up, and that the work subjected the workman to in so doing ruptured several fibers of the any serious strain. Barnabas v. Bersham muscles of his back, which incapacitated Colliery Co. (1910) 103 L. T. N. S. (Eng.) him for work. Held, that he had sustained 513, 55 Sol. Jo. 63. The House of Lords