An interesting question has arisen in London Authority [1913] W. C. & Ins. Rep. (Eng.) 455, 6 B. W. C. C. 732. the court of appeal, that if a workman ments for a considerable period of takes proceedings under the workmen's time.79 But an alleged election may be compensation act or commences an ac- disproved by showing that, although the tion either at common law or under the workman had accepted payment, he was employers' liability act, he has exercised excusably ignorant of the effect of his his option regardless of the outcome of act, particularly if there were anything such proceedings, the only exception be- like misrepresentation made by the eming that provided for in § 1, subsec. 4.78 ployer in order to secure the acceptance An election under the act is shown by by the workman of the payment.80 proof that the workman accepted paycase is therefore not within the proviso we are considering, which presupposes two claims, one of which is to be heard and determined. But in the present case the claim under the compensation act was tried and decided against the claimant on its merits, and he is now attempting to follow out, by action at law, the alternative claim, which is founded on the alleged fault of the employer. This proceeding, as I think, is contrary to the letter, and the spirit of the statutory provision against double liability." 78 Cribb v. Kynoch [1908] 2 K. B. (Eng.) 551, 77 L. J. K. B. N. S. 1001, 99 L. T. N. S. 216, 24 Times L. R. 736, 52 Sol. Jo. 581. Beckley v. Scott (Ir.) and Rouse v. Dixon (Eng.) supra, were disapproved. It is to be noted, however, that the actual decision in this case was that a workman could not give the required notice in due time, and have it serve as a foundation for future proceedings in the event that an action at law commenced more than six months after the injury should prove unsuccessful. no 79 Where it appeared that at the end of the week in which he was injured a workman was paid a sum in lieu of wages, and was told that for the next two weeks he would get nothing, but after that he would be paid half wages, and subsequently, for a period of about six months, received each week a sum amounting to slightly more than half his average weekly wage, it was held that, notwithstanding there was written agreement and no receipt was given, the pursuer had elected to accept, and had accepted, compensation under the workmen's compensation act, and was therefore barred from bringing an action at common law. Mackey v. Rosie [1908] S. C. 174, 45 Scot. L. R. 178, 1 B. W. C. C. 52. The lord ordinary pointed out that the workman was not a foreigner nor an illiterate person and was not in such a condition as the result of the accident that he could claim not to be responsible for his acts. An election to take under the act is evidenced by receipts for weekly payments, some of which were worded, "in full satisfaction of amount due to me under the act." Little v. MacLellen (1900) 2 Sc. Sess. Cas. 5th series, 387, 37 Scot. L. R. 287, 7 Scot L. T. 313. Weekly payments of half wages continued for over six months will be held satisfaction of any claim for compensation although the receipts which the workman gave were headed with the words "compassionate allowances." Ferriter v. Port of 80 In Fowler v. Hughes (1903) 5 Sc. Sess. Cas. 5th series, 394, 40 Scot. L. R. 321, 10 Scot. L. T. 583, the court held that a receipt for 12 s. 6 d. for injuries due to the loss of an eye, secured by an agent of the employer while the injured employee was lying in bed in great suffering, and without giving him any explanation, and without reading it over to him, could not be considered as an agreement by him to take his compensation under the act. The signing of a receipt which purports to be a "final discharge" does not bar the workman's claim to compensation as long as he is incapacitated, where the workman was ignorant of what the paper contained, and it was without consideration. Macandrew v. Gilhooley [1911] S. C. 448, 48 Scot. L. R. 511, 4 B. W. C. C. 370. A workman cannot be said to have elected to take compensation under the act because he had applied for money for his injuries, and accepted two sums consisting of the amount due him under the act, and had with his mark authenticated two receipts therefor, and knew of his right to half wages during incapacity, where it appears that he was imperfectly acquainted with the English language, and unable to read or write it, and did not know of the act by name, or of his rights apart from the act, and the receipts were not read over or explained to him. Valenti v. Dixon [1906-07] S. C. (Scot.) 695. While a release or an agreement to accept a lump sum in full satisfaction of all claims is not prohibited by the act, a receipt for the amount to which an injured workman is entitled under the act, although expressed to be in full satisfaction and liquidation of any claim he had or might have in respect to the accident, does not amount to a release, being without consideration. Great Fingall v. Sheehan (1906) 3 Austr. L. R. 176. It is for the jury to say whether an injured workman understood the nature of several receipts which he signed, acknowledging the receipt of compensation under the act, where he subsequently returned the money, and claimed that he did not understand the nature of the receipts. Huckle v. London County Council (1910) 27 Times L. R. (Eng.) 112, 4 B. W. C. C. 113. A workman cannot be held to have taken proceedings independently of the act, where he signed a receipt in full of claims "under the employers' liability act of 1880" where a few cases as to whether some of the dependents in a case in which the workman has been killed under circumstances which render the employer liable at common law, or under the employers' liability act, may, by taking proceedings to secure compensation, prevent other dependents from bringing in an action to recover damages, but in these cases the facts are such that the court has not had to pass upon the question.81 Thus, a widow, who, although not a party to the proceedings for compensation, attends the hearing and renounces her right and interests in the award to be made, cannot subsequently bring an action for damages.82 The decision of the court of appeal was put upon the ground that the award had been made with the widow's knowledge and consent.83 In another case the widow re he claimed compensation under the act of 1906, and no previous mention of employers' liability act had been made, and as a matter of fact the employer had not paid the workman the full amount mentioned in the receipt. Hawkes v. Coles (1910) 3 B. W. C. C. (Eng.) 163. 81 In Codling v. Mowlem (1914) 7 B. W. C. C. (Eng.) 786, Buckley, L. J., in discussing the provision of § 1 (2) (b), as to the privilege given to dependent, to proceedings either under the act or independently of the act, said: "I quite recognize, as has been suggested in the course of the argument in this case, that many very difficult questions may arise under that provision. For instance, if you have, as here, seven dependents, what is meant by 'may at their option? Does that mean that they must be unanimous in their option, or if four of them take one view, and three take the other, is the voice of the majority to prevail, or has each one of the dependents individually an option? Inasmuch as the option is to do either one thing or another thing, you cannot, of course, have an option exercised in one way which does not exclude the other; and if three of them take the former course, and four take the latter, there is no option really of the dependents as a body at all. Those are difficulties which will have to be faced when they arise." 82 Codling v. Mowlem (Div. Ct.) [1914] 2 K. B. (Eng.) 61, 83 L. J. K. B. N. S. 445, 108 L. T. N. S. 1033, 29 Times L. R. 619, [1914] W. C. & Ins. Rep. 1, 6 B. W. C. C. 766, affirmed by the court of appeal in [1914] 3 K. B. (Eng.) 1055, 111 L. T. N. S. 1086, 83 L. J. K. B. N. S. 1727, 30 Times L. R. 677, 58 Sol. Jo. 783, [1914] W. N. 333, 7 B. W. C. C. 786. 83 In the divisional court Atkin, J., had said: "The employer has been made liable to pay, and has in fact paid, compensation for injury to a workman by an accident arising out of and in the course of his em- i nounced her interest in the arbitration, intending to bring suit under Lord Campbell's act; and upon the award being made, it was simply held that the dependents, who claimed the award, were entitled to all of it, and that the portion which would have gone to the widow had she joined in the award did not go back to the employers.84 An option exercised in behalf of minors to accept benefits under the act is not a bar to a subsequent action for damages, if the option is not for the benefit of the minor.85 But where litigation duly commenced in the name of the infant by a next friend has been prosecuted to judgment, he is as much bound by the proceedings as if he were an adult, and will be held to have exercised his option.86 The personal representatives of a ployment under the workmen's compensation act by an award duly made. It seems to me immaterial whether such liability was imposed and payment made with the knowledge and consent of the plaintiff or not, but in this case the plaintiff both knew and consented. I think that the employers are, by the terms of the act, not liable also to pay compensation for such injury independently of the act, and the plaintiff in this action seeks to impose such a liability. I therefore decide the point of law mentioned in the order in favour of the defendants, the employers, who must have the costs of the hearing before me in any event." The court of appeal, however, differed from Atkin, J., in his statement that it was immaterial whether such payment had been made with the knowledge or consent of the plaintiff or not; it was stated by that court that if the payment had been made without her knowledge and without her consent, a very different question would have arisen, but that it appeared that the plaintiff both knew and consented to the payment. 84 Gill v. Fortescue [1913] W. C. & Ins. Rep. (Eng.) 471, 6 B. W. C. C. 577. 85 Stephens v. Dudbridge Ironworks Co. [1904] 2 K. B. (Eng.) 225, 73 L. J. K. B. N. S. 739, 68 J. P. 437, 52 Week. Rep. 644, 90 L. T. N. S. 838, 20 Times L. R. 492, 6 W. C. C. 48. The acceptance in behalf of a minor fourteen years of age of compensation at one half the amount of her wages will not preclude her from maintaining an action for damages against the employer if the arrangement does not appear to be for her benefit. Ford v. Wren (1903; common-law action) 115 L. T. Jo. (Eng.) 357, 5 W. C. C. 48. 86 Cribb v. Kynoch [1908] 2 K. B. (Eng.) 551, 77 L. J. K. B. N. S. 1001, 99 L. T. N. S. 216, 24 Times L. R. 736, 52 Sol. Jo. 581, 1 B. W. C. C. 43. “Serious and wilful misconduct" of workman (§ 1, subsec. 2 (c)). As to the effect of serious and wilful misconduct of employee, under the American statutes, see post, 243. workman who had accepted a scheme; f. certified by the registrar of a friendly society under § 3, subsec. 1 of the act, cannot take advantage of the rights which they otherwise would have had under the common law or the employers' liability act. The workman had exercised the option provided for in 1, subsec. 2 (b).87 A workman who, upon the suspension of payments made under the act, commences a common-law action for his injuries, will be held to have acquiesced in the suspension of payments under the act during the continuance of the action, and is barred from thereafter claiming compensation for such time.88 A workman receiving full compensation in respect to an injury causing incapacity is estopped from claiming wages during the period for which he received compensation.89 See also the cases construing subsec. 4 of § 1, relative to the recovery of compensation in cases where nonliability apart from the statute has been established. Post, 81. 87 Taylor v. Hamstead Colliery Co. [1904] 1 K. B. (Eng.) 838, 73 L. J. K. B. N. S. 469, 68 J. P. 300, 52 Week. Rep. 417, 90 L. T. N. S. 363, 20 Times L. R. 338. 88 Rosie v. MacKay [1909-10] S. C. 714, 46 Scot. L. R. 999. 89 Elliott v. Liggens [1902] 2 K. B. (Eng.) 84, 71 L. J. K. B. N. S. 483, 50 Week. Rep. 524, 87 L. T. N. S. 29, 18 Times L. R. 514. 90 Cotton, L. J., in Lewis v. Great Western R. Co. (1877) L. R. 3 Q. B. Div. (Eng.) 195, 47 L. J. Q. B. N. S. 131, 37 L. T. N. S. 774, 26 Week. Rep. 255. The language used by the other lords justices is to a similar effect. 91 Lord M'Laren in Praties v. Broxburn Oil Co. [1906–07] S. C. (Scot.) 581. 92 Johnson v. Marshall [1906] A. C. (Eng.) 409, 75 L. J. K. B. N. S. 868, 94 L. T. N. S. 828, 22 Times L. R. 565, 5 Ann. Cas. 630, 8 W. C. C. 10. In Wallace v. Glenboig Fire Clay Co. [1907] S. C. (Scot.) 967, as cited in 2 Mew's Dig. Supp. 1547, it was held that the act must be wilful and also serious-that is, not doubtful or trivial in quality. 93 Johnson v. Marshall (Eng.) supra. Serious misconduct means misconduct which in itself is serious, and not serious only when looked at in the light of the actual consequences of it. Hill v. Granby Consol. Mines (1905) 12 B. C. 118. Compensation will not be refused on the ground of serious and wilful misconduct on the part of a workman who was injured while walking along a tramway in a mine upon which he knew trams were approaching, where the injury was caused by the The phrase "serious and wilful misconduct" implies, apparently, something nearly, if not quite, the same as that "wilful misconduct" which was explained by the court of appeals in a case involving the liability of a carrier for damage to goods. "There must be the doing of something which the person doing it knows will cause risk or injury, or the doing of an unusual thing with reference to the matter in hand, either in spite of warning, or without care, regardless whether it will or will not cause in jury."90 It has been said that miscon- The The question whether the servant is or is not debarred from recovery on the ground of "serious and wilful miscon rope slipping, and there was no evidence that he could not have reached a manhole before the tram reached him. Rees v. Powell Duffryn Steam Coal Co. (1900) 64 J. P. (Eng.) 164. Nor where an engineer, after leaving his engine, walked along the track to a station where he had to report himself off duty. Todd v. Caledonian R. Co. (1899) 1 Sc. Sess. Cas. 5th series, 1047, 36 Scot. L. R. 784, 7 Scot. L. T. 85. Nor where a watchman, stationed at a certain point to warn approaching trains of a landslide, went along the line for about 300 yards. Glasgow & S. W. R. Co. v. Laidlaw (1900) 2 Sc. Sess. Cas. 5th series, 708, 37 Scot. L. R. 503, 7 Scot. L. T. 420. But a miner's injury must be held attributable to his own serious and wilful misconduct, where the injury was received while he was attempting to cross two sets of rails in a mine while the hutches were running, with full knowledge that it was dangerous so to do, and the danger could have been avoided by waiting a short time until the hutches had ceased running. Condron v. Paul (1903) 6 Sc. Sess. Cas. 5th series, 29, 41 Scot. L. R. 33, 11 Scot. L. T. 383. The act of a farm servant who, in driving a lorry, ties the reins to a small wheel which worked a brake on the front of the lorry, instead of keeping them in his hand, thereby causing the horse's head to be pulled round so as to make it run back and upset the lorry, amounts to "serious and wilful misconduct." Vaughan v. Nicoll (1906) 8 Sc. Sess. Cas. 5th series (Scot.) 464. 99 97 duct" ceases to be of any importance, by the master,96 especially if the rule when it is apparent from the circumstan- was unknown to the workman,9 or if it ces that the accident did not arise out appears that the rule was habitually vioof, or in the course of, his employment.9 .94 lated.98 Ignorance of a rule for the But if the workman brings himself with- guidance of miners may not amount to in the act by showing that the accident serious and wilful misconduct, although arose out of, and in the course of, his the miners had means of knowledge of employment, his case can only be met by the rule.9 But a decision apparently the employer by showing that the injury the contrary has been handed down by to the workman is attributable to his the Scottish court of sessions, in regard serious and wilful misconduct.95 to a statutory rule.1 Ordinarily, however, the breach of an express rule or order will be held to be serious or wilful misconduct as a matter of fact, especially if such rule or order was made especially 97 As where a servant used a hoist to ascend to a platform, in contravention of a prohibitory notice, but the trial judge did not find that he knew of the prohibition. McArthur v. McQueen (1901) 3 Sc. Sess. Cas. 5th series, 1010, 38 Scot. L. R. 732, 9 Scot. L. T. 114. It has been held that a finding in favor of the workman will not be held erroneous as a matter of law because of his violation of rules and orders laid down 94 Lowe v. Pearson [1899] Q. B. (Eng.) 261, 68 L. J. Q. B. N. S. 122, 47 Week. Rep. 193, 79 L. T. N. S. 654, 15 Times L. R. 124. See also cases cited in notes 10 et seq. ante, in which there was a disobedience of orders which might be considered serious and wilful misconduct, but the decisions are based upon the ground that the injury did not arise out of the employment. 95 McNicholas v. Dawson [1899] 1 Q. B. (Eng.) 773, 68 L. J. Q. B. N. S. 470, 80 L. T. N. S. 317, 47 Week. Rep. 500, 15 Times L. R. 242, per Collins, L. J.; Johnson v. Marshall [1906] A. C. (Eng.) 409, 75 L. J. K. B. N. S. 868, 94 L. T. N. S. 828, 22 Times L. R. 565, 5 Ann. Cas. 630, 8 W. C. C. 10, per Lord Loreburn, L. C. 96 In George v. Glasgow Coal Co. [1909] A. C. (Eng.) 123, 2 B. W. C. C. 125, Lord Loreburn, L. C., said: "In my opinion, it is not the province of a court to lay down that the breach of a rule is prima facie evidence of serious and wilful misconduct. That is a question purely of fact, to be determined by the arbitrator as such. The arbitrator must decide for himself and ought not to be fettered by artificial presumptions of fact prescribed by a court of law." A finding in favor of a servant will not be pronounced erroneous, as a matter of law, where a rule made under the coal mines regulation act of 1887 was violated by a workman employed in a coal mine. Rumboll v. Nunnery Colliery Co. (1899) 80 L. T. N. S. (Eng.) 42, 63 J. P. 132. Nor where a workman instead of using a ladder undertook to ascend by a hoist to a platform for the purpose of obtaining a certain article which he required for his work. Logue v. Fullerton (1901) 3 Sc. Sess. Cas. 5th series, 1006, 38 Scot. L. R. 738, 9 Scot. L. T. 152. Nor where a boy of nineteen, in contravention of an express order, put his hand across a circular saw to pick up an uncut screw which had fallen from its place. Reeks v. Kynoch (1901) 18 Times L. R. (Eng.) 34, 50 Week. Rep. 113, 2 N. C. C. A. 877. The court said that the inference was that the element of wilfulness was not present, but that the act was committed on a sudden impulse. A breach of a rule as to mines, unknown to the servant, where his ignorance is due to mere negligence, is not "serious or wilful misconduct." M'Nicol v. Spiers (1899) 1 Sc. Sess. Cas. 5th series, 604, 36 Scot. L. R. 428, 6 Scot. L. T. 353. 98 The county court judge may find that a girl fourteen years old employed as a soda water bottler was not guilty of serious and wilful misconduct in neglecting to wear gauntlets which had been furnished by the employer and which by the special rules of the establishment and by special orders given directly to the workmen she was required to use, where the evidence showed that the forewoman had allowed her to disregard the rules but verbally told her to obey them, and had verbally told her to put them on in case the employer should come to see her. Casey v. Humphries (1913) 6 B. W. C. C. (Eng.) 520, [1913] W. N. 221, 29 Times L. R. 647, 57 Sol. Jo. 716. The use by an employee for his own purpose of a lift upon which was a notice that no one was allowed to use the lift except in charge of a load does not amount to serious and wilful misconduct, where other employees had used the lift in like manner and the notice was not intended as a warning against danger and no danger could have been anticipated from the use of the lift by an individual workman. Johnson v. Marshall [1906] A. C. (Eng.) 409, 75 L. J. K. B. N. S. 868, 94 L. T. N. S. 828, 22 Times L. R. 565, 5 Ann. Cas. 630. 99 M'Nicol v. Spiers (1899) 1 Sc. Sess. Cas. 5th series, 604, 36 Scot. L. R. 428, 6 Scot. L. T. 353. 1 Where a workman, except for some dominant reason, is in breach of a duly published statutory rule, and an injury results there from, his de facto ignorance of the rule can in no circumstances prevent the injury from being attributable to his "serious and wilful" misconduct. Dobson v for the safety of the employee.2 Where to the express orders of his superior, and a workman does a dangerous act contrary is injured, the accident is one intention United Collieries (1905) 8 Sc. Sess. Cas. 5th series (Scot.) 241 (miner carrying cartridge not in a case, with naked light in his cap). 2 No recovery was allowed where a girl engaged in passing sheaves on a threshing machine undertook, in disobedience to an express prohibition, to step across the opening through which they were fed to the machine, merely for the purpose of speak ing to a friend, and without any necessity arising out of the work. Callaghan v. Maxwell (1900) 2 Sc. Sess. Cas. 5th series, 420, 37 Scot. L. R. 313, 7 Scot. L. T. 339. Nor where a miner infringed a rule forbidding him to carry a naked light on his cap while carrying cartridges not inclosed in a case. Dailly v. Watson (1900) 2 Sc. Sess. Cas. 5th series, 1044, 37 Scot. L. R. 782, 7 Scot. L. T. 73. Nor where miners contravene a special rule framed under the coal mines regulation act. United Collieries v. M'Ghie (1904) 6 Sc. Sess. Cas. 5th series, 808, 41 Scot., L. R. 705, 12 Scot. L. T. 650; Lynch v. Baird (1904) 6 Sc. Sess. Cas. 5th series, 271, 41 Scot. L. R. 214, 11 Scot. L. T. 597 (facts, however, did not show contravention). Nor where a miner violated a rule requiring the erection of props at specified intervals. O'Hara v. Cadzow Coal Co. (1903) 5 Sc. Sess. Cas. 5th series (Scot.) 439. The Lord Justice Clerk said: "The rule is an imperative one, and is plainly meant to insure the safety of the worker, and the failure to carry it out is plainly 'serious misconduct,' as adding greatly to danger. That it was wilful is also plain, for there is no suggestion of an excuse for the disobedience.' Nor where a miner failed to get into a manhole in the main haulage road of the mine, after he had been warned by a fellow workman that a train of cars was approaching. John v. Albion Coal Co. (1901) 18 Times L. R. (Eng.) 27, 65 J. P. 788. Nor where the servant cleaned machinery in motion, such an act being forbidden by a rule known to him. Guthrie v. Boase Spinning Co. (1901) 3 Sc. Sess. Cas. 5th series, 769, 38 Scot. L. R. 483. Nor where an engine-driver left the foot plate of the engine while in motion, contrary to rules. Bist v. London & S. W. R. Co. [1907] A. C. (Eng.) 209, 76 L. J. K. B. N. S. 703, 96 L. T. N. S. 750, 23 Times L. R. 471, 8 Ann. Cas. 1; Jones v. London & S. W. R. Co. (1901) 3 W. C. C. (Eng.) 46. Nor where a workman failed to use a guard to a saw which he had been directed to use by both the foreman and a factory inspector. Brooker v. Warren [1907] 23 Times L. R. (Eng.) 201. The disobedience by boys of positive directions not to go to a certain dangerous place is "serious and wilful misconduct." Powell v. Lanarkshire Steel Co. (1904) 6 Sc. Sess. Cas. 5th series (Scot.) 1039. A deliberate breach of a regulation forbidding the use of a freight elevator to reach another floor, committed by an inexperienced workman after two warnings, is serious and wilful misconduct. Granick v. British Columbia Sugar Ref. Co. (1909) 14 B. C. 251. The breach of a general rule in a mine and disobedience of the order of a deputy is serious and wilful misconduct. Watson v. Butterley Co. (1902; C. C.) 114 L. T. Jo. (Eng.) 178, 5 W. C. C. 51. Where a miner after lighting a fuse and retiring to a safe place waits only three minutes before returning to see whether or not the fuse has gone out, instead of the thirty minutes required by the rules of the mine, he is guilty of serious and wilful misconduct which prevents a recovery of compensation. Waddell v. Coltness Iron Co. [1913] W. C. & Ins. Rep. 42, 50 Scot. L. R. 29, 6 B. W. C. C. 306. A workman employed in a mine, who, despite warnings and in violation of the orders of the manager, rides upon a truck of ore at point where it will travel about 6 miles an hour by gravitation and where the track is curving and only temporary, is guilty of serious and wilful misconduct. Rowe v. Reynolds (1910) 12 West Austr. L. R. 75. A collier who permits his naked light to remain in such a position that it ignites gunpowder, and thereby commits a breach of a special rule, is guilty of wilful and serious misconduct which precludes a recovery. Donnachie v. United Collieries [1910] S. C. 503, 47 Scot. L. R. 412. The violation of a rule forbidding the opening of the gate fencing to a shaft before the cage is stopped is "serious and wilful" misconduct. George v. Glasgow Coal Co. [1909] A. C. (Eng.) 123, 78 L. J. P. C. N. S. 47, 99 L. T. N. S. 782, 25 Times L. R. 57 [1909] S. C. (H. L.) 1, 46 Scot. L. R. 28. Lord Loreburn, L. C., and Lord Robertson both expressed the opinion that the violation of a rule was not prima facie evidence of "serious and wilful" misconduct. A charwoman who in hanging out clothes stands upon the ledge of a glass frame, which she has been forbidden to do, is guilty of serious and wilful misconduct. Beale v. Fox (1909; C. C.) 126 L. T. Jo. (Eng.) 257, 2 B. W. C. C. 467. In Hill v. Granby Consol. Mines (1906) 12 B. C. 118, where a brakeman stood on the platform of a car in such a position that when it entered a shed projecting from the mouth of a tunnel he would inevitably be killed, Duff, J., said: "Any neglect is 'serious neglect' within the meaning of the act, which in the view of reasonable persons, exposes anybody (including the person guilty of it) to the risks of serious injury. The test is the apprehended, as distinguished from the actual, consequences." |