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ally produced within the meaning of the Where the county court judge on the Quebec act.3 Intoxication has been held hearing permitted an amendment so as to be serious and wilful misconduct.* to allow the employer to set up the deAs to whether injuries by accident re- fense of serious and wilful misconduct, ceived by an employee while he is in- which was not raised by the answer nor toxicated "arise out of and in the course in the correspondence between the of his employment," see note 47 ante. parties, the workman is entitled to an

The making of a false representation adjournment in order to call evidence by an infant that he is of full age in in rebuttal.8 order to secure employment is not "se The phrase "serious neglect” in 2, rious and wilful misconduct or serious subsec. (c) of the British Columbia act neglect," where it appears that the ac- does not refer to the conduct of the workcident is not solely attributable to the man after the injury.9 misrepresentation. 5 It is to be noted Under the Quebec act, the compensathat under the act of 1906, serious and tion recoverable by an injured employee wilful misconduct is not a bar to com- is reducible to the extent that the inpensation where the injury results in juries were caused by the fault of the death or in serious and permanent dis- workman.10 ablement.6 What constitutes serious and Serious and wilful misconduct to prepermanent disablement has been passed vent a recovery must be the proximate upon in a few cases."

cause of the injury.11 And the burden 3 Jetté v. Grand Trunk R. Co. (1911) employment does not prevent the work. Rap. Jud. Quebec, 40 C. S. 204 (brakeman man's dependents from claiming compensajumped on a moving train).

tion: serious and wilful misconduct outside 4 Going up a ladder while intoxicated, the sphere of his employment is entirely carrying unnecessarily a large piece of tim- different. Serious and wilful misconduct ber and failing to use the hands in the outside the sphere of his employment does. proper and ordinary way for support, is not bring within the sphere of the employserious and wilful misconduct. Burrell v. ment that which but for the serious and Avis (1898; C. C.) 106 L. T. Jo. (Eng.) wilful misconduct would be outside of it.”. 61, 1 W. C. C. 129.

Although a collier in going into a dangerBeing drunk and unfit to work is serious

ous working in disobedience to the colliery and wilful misconduct. M'Groarty v. Brown special rules, and against the warnings of (1906) 8 Sc. Sess. Cas. 5th series (Scot.) a fireman or overlooker, was guilty of “seri809.

ous and wilful" misconduct, yet if he did 5 Darnley v. Canadian P. R. Co. (1908) so in an honest attempt to further that 14 B. C. 15, 2 B. W. C. C. 505.

which he was instructed to effect, his de6 "I think that the 'serious and wilful pendents may secure compensation for his misconduct section of the act-$ 1, subsec. death, which resulted from such act. Hard(2) (c)-really throws great light on the ing v. Brynddu Colliery Co. [1911] 2 K. present case. It is not every misconduct B. (Eng.) *747, 80 L. J. K. B. N. S. 1052, that prevents a workman from recovering 105 L. T. N. S. 55, 27 Times L. R. 500, 55 compensation. It must be proved that the Sol. Jo. 599, 4 B. W. C. C. 269. misconduct was 'serious and wilful;' and

7 A workman who has lost two fingers although the present case does not come

of his right hand is seriously and permaunder that provision,--because for some nently disabled, and is entitled to comreason the section does not apply to a case where the accident results in death, occasioned by his "serious and wilful” mis

pensation notwithstanding the injury was -still the principle that it is not every conduct. Hopwood v. Olive (1910) 102 L. T. misconduct which disentitles a workman to the benefit of the act must apply in N. S. (Eng.) 790, 3 B. W. C. C. 357.

The loss of the top joint of the middle this case as in every other.” Cozens-Hardy, M. R., in Robertson v. Allan Bros. & co finger of the right hand of a machinist

may be found to be serious and permanent (1908) 1 B. W. C. C. (Eng.) 172.

disablement within the meaning of § 1 (2) Serious and wilful misconduct is not ma

Brewer v. Smith, (1913) terial where the workman has been serious. (3) of the act. ly and permanently disabled.

Jackson v.

6 B. W. C. C. (Eng.) 651. Denton Colliery Co. [1914] W. C. & Ins.

8. Casey v. Humphries (1913) W. N. (Eng.) Rep. (Eng.) 91, 110 L. T. N. S. 559, 7221, 29 Times L. R. 647, 57 Sol. Jo. 716, B. W. C. C. 92.

[1913] W. C. & Ins. Rep. 485, 6 B. W. In Weighill v. South Hetton Coal Co. C. C. 520, 4 N. C. C. A. 881. [1911] 2 K. B. (Eng.) 757, in discussing

9 Powell v. Crow's Nest Pass Coal Co. the effect of the provision of the act of (1915) 23 D. L. R. (B. C.) 57. 1906, which provides that serious and wil

10 Croteau v. Victoriaville Furniture Co. ful misconduct is not a bar to compensa- (1911) Rap. Jud. Quebec, 40 C. S. 44. tion where the injury results in “death 11 A breach of a statutory rule as to or serious and permanent disablement,” mines is "serious and wilful misconduct," Cozens-Hardy, M. R., said: Serious and but such breach is not a bar to recovery, wilful misconduct within the sphere of the unless it is the cause of the accident. Pra..

fact. 13

con

of proving that the accident was due to , trator appointed under this subsection, the serious and wilful misconduct of the see post, 177. workman is upon the employer.12 Wheth- In order that this subsection may aper or not a workman is guilty of serious ply, it must be shown that a question has or wilful misconduct is a question of arisen and that it has not been settled

by agreement.14 Where a question as to

the amount or duration of compensation g. Arbitration for settlement of dis

has been settled by agreement, there is putes ($ 1, subsec. 3).

no room for arbitration. The workman's Generally as to the powers of an arbi- I proper course is to get a memorandum of ties v. Broxburn Oil Co. (1906–07] S. C. , 50 Week. Rep. 212, 85 L. T. N. S. 571, (Scot.) 581.

18 Times L. R. 65. There a workman, In order that a breach of a statutory having been incapacitated for work by rule as to mines shall amount to "serious an accident arising out of, and in the course and wilful misconduct,” it must be shown of, his employment, his employers had, to have been the cause of the accident. since the second week after the accident, Allan v. Glenborg Union Fire Clay Co. paid to him, by way of compensation, [1906-07) S. C. (Scot.) 967.

weekly payments of the full amount menThe death of a miner killed while riding tioned in schedule I., $ 1 (b) (see subtitle on top of a loaded hutch in the mine, in B. post), and promised to continue to do so breach of one of the rules in force in the during the period of his incapacity; but mine, by the fall of a stone from the roof the workman, nevertheless, filed a request of the tunnel in which the hutch was run- for arbitration in the county court, and ning, is not "attributable” to his serious the county court judge made an award for and wilful misconduct. Glasgow Coal Co. compensation in his favor. It was held, v. Sneddon (1905)_7 Sc. Sess. Cas. 5th that, under the subsection it was a series (Scot.) 485. Lord M'Laren observed: , dition precedent to the jurisdiction of the “What is included under the word 'attribu- county court judge that a question should table? I think that under that word there have arisen as to the liability to pay, or must be some causal relation between the as to the amount or duration of compenmisconduct of a workman and the injury sation under the act, and that, no such which he suffers.

It is enough that question having arisen, the county court it is a material cause that in some way judge had no jurisdiction to make an award. contributes to the unfortunate result. The petition for arbitration is incompeTherefore I think that the question to he tent where, at the date when the petition considered under the word 'attributable' is was presented, no dispute had arisen bevery much the same as we have to con- tween the parties as to compensation, and sider in cases at common law where there the compensation was not in arrears. Caleis fault on the part of employer or his don Shipbuilding & Engineering Co. v. Kenservant, and the meaning is that the in: nedy (1906) 8 Sc. Sess. Cas. 5th series jury was either caused solely by the work. (Scot.) 960. man's own fault, or was contributed to There is no dispute so as to give the materially by his act or fault."

county court power to award costs where 12 British Columbia Sugar Ref. Co. v. the employers, not knowing that the inGranick (1910) 44 Can. S. C. 105, affirm - jured workman was a minor, paid him ing 15 B. C. 198.

only a portion of the compensation to 13 Johnson Marshall (1906) A. C. which he as a minor was entitled, but (Eng.) 409, 75 L. J. K. B. N. S. 868, 94 eight days after receiving notice of that L. T. N. S. 828, 22 Times L. R. 565, 5 fact and a demand for the balance tendered Ann. Cas. 630, 8 W. C. C. 10; Casey v.

such balance, which was refused because Humphries (1913) 6 B. W. C. C. (Eng.) certain alleged costs were not tendered. 520, [1913] W. N. 221, 29 Times L. R. Smith v. Abbey Park Steam Laundry Co. 647, 57 Sol. Jo. 716.

(1909) 2 B. W. C. C. (Eng.) 142. Whether or not a workman is guilty A petition for arbitration is incompeof serious and wilful misconduct is a ques. tent where, at the date when the petition tion of fact, and the court will not inter- was presented, no question had arisen be. fere with the finding of the arbiter. Leish- tween the parties as to the duration of the mann v. Dixon (1910) S. C. 498, 47 Scot. compensation; and the mere fact that there L. R. 410, 3 B. W. C. C. 560.

was no agreement between the parties caWhether the fact that a farm servant pable of registration does not show that fastened the reins to the breeching, instead a question had arisen between them, so of holding them in his hand, in violation as to entitle the workman to present a of the general turnpike act, amounts to petition for arbitration. Gourlay Bros. v. serious and wilful misconduct, is a ques. Sweeney (1906) 8 Sc. Sess. Cas. 5th series tion of fact, and the finding by the sheriff. (Scot.) 965. substitute that it did not will not be re. The refusal of the employer, who had viewed on appeal. Mitchell v, Whitton been voluntarily paying compensation to [1906–07] S. C. (Scot.) 1267.

a workman, to sign an agreement, does not 14 Field v. Longden (1902) 1 K. B. (Eng.) give the county court judge jurisdiction 47, 71 L. J. K. B. N. S. 120, 66 J. P. 291,/ to make an award, since it does not pre

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agreement recorded.15 An implied agree-| tion for arbitration, although some disment is sufficient to take away the pute may arise in the future.20 jurisdiction of the arbitrator.16 The dis An appeal from a decision of the counpute to be settled by the arbitrator may ty court judge dismissing an application be as to the liability to pay compensa- for arbitration upon the ground that no tion,17 as to the amount of compensation payable,18 or as to the duration of the question has arisen cannot be sustained incapacity.19 The dispute must exist at upon the ground that the correspondence the present time; if the employer is pay- between the parties showed that a differing full compensation there is no ques-'ence had arisen which was not raised sent a question as to the liability to pay 6 B. W. C. C. 255, [1913] S. C. (H. L.) 3. compensation, or as to the amount of dura Where the employer raises the question tion of compensation. Mercer v. Hilton of duration of incapacity by his answer, he (1909) 3 B. W. C. C. (Eng.) 6.

cannot be heard to say that there was no 15 Dunlop v. Rankin (1901) 4 Sc. Sess. dispute at the time of the application. Cas. 5th series, 203, 39 Scot. L. R. 146. Barron v. Carmichael (1912) 5 B. W. C. C. See also Cochrane v. Traill (Ct. of Sess.) (Eng.) 436. 2 F. (Scot.) 794, as cited in 2 Mew's Dig. An application for arbitration is compeSupp. 1576.

tent where, although the employers were 16 Where there is an implied agreement paying full compensation and had made no between the parties, there is no jurisdiction threat to stop payment, they had barred for an arbitrator. Jones v. Great Central the recording of a memorandum of agreeR. Co. (1901) 4 W. C. C. (Eng.) 23; Web- ment by a receipt signed by the applicant ster v. London & X. W. R. Co. (1901; which provided that the payment should C. C.) 3 W. C. C. (Eng.) 52; Busby v. continue only while the employers were Richardson (1901; C. C.) 3 W. Ć. C. (Eng.) of the opinion that the incapacity contin54; Trenear v. Wells (1900; C. C.) 3 W. ued. Brown v. Hunter (1912) 49 Scot. C. C. (Eng.) 58.

L. R. 695, 5 B. W. C. C. 589. 17 In Barron v. Carmichael (1912) 5 B. A question has arisen for arbitration W. C. C. (Eng.) 436, Buckley, L. J., said: under $ 1 (3) of the act where the employ“Jurisdiction under the act arises only if er, although admitting liability to pay a question arises upon some one of three compensation during total incapacity, resubject-matters: firstly, liability to pay fuses to admit liability to pay compensacompensation; secondly, amount of com tion in event of partial incapacity and pensation; and, thirdly, duration of compen- the workman declines to accept an admissation.”

sion limited to total incapacity only. Coop18 The county court judge has jurisdiction er v. Wales (1915) 31 Times L. R. (Eng.) where the correspondence between the par- 506. ties shows that although the `employer

20 Where the employer was paying full agreed that the workman was entitled to compensation, the workman was not encompensation, they could not agree upon titled to arbitration merely because a questhe amount thereof. Brooks v. Knowles tion might thereafter arise as to whether (1911) 5 B. W. C. C. (Eng.) 15.

the compensation which was being made Where the applicant filed an application may or may not have to be reviewed in for compensation at 12s. 6d., the employer accordance with condition of health and admitting liability and present total in other circumstances affecting the workman. capacity and submitting to an award of Payne v. Fortescue [1912] 3 K. B. (Eng.) 10s. per week during total disability, the 346, 81 L. J. K. B. N. S. 1191, 107 L. T. amount payable during partial incapacity N. S. 136, 57 Sol. Jo. 81, [1912] W. N. to be settled thereafter, there was a dis- 216, 5 B. W. C. C. 634. pute at the time of application so as to No question for arbitration has arisen give the county court judge jurisdiction, where the employers have admitted liaalthough the workman had before the hear- bility and paid full compensation up to ing agreed to accept 10s. compensation but the day of the application for arbitration, objected to the limitation to total inca- although the employers refused to agree pacity. Higgins v. Poulson (1911) 5 B. to pay compensation during partial incaW. C. C. (Eng.) 66.

pacity. Bedwell v. London Electric R. Co. 19 Arbitration is competent although the (1914) 7 B. W. C. C. (Eng.) 685. employers admitted liability under the act There is no question for arbitration and there was no dispute as to the com where incapacity and liability are admitted pensation, but the employers insisted that and full compensation being paid, although the workman sign a receipt which provided the employer refused to make any agreethat the payment admitted liability only ment as to payment after total incapacity for compensation to date of payment, and had ceased, but was willing to sign an further liability, if any, was to be deter: agreement that the amount of compensamined week by week. Summerlee Iron Co. tion payable during partial incapacity was v. Freeland [1913] A. C. (Eng.) 221, 82 to be settled afterward. Sampson v. GenL. J. P. C. N. S. 102, 108 L. T. N. S. 465, eral Steam Nav. Co. [1914] W. C. & Ins. 29 Times L. R. 277, 57 Sol. Jo. 281, [1913] Rep. (Eng.) 36, 7 B. W. C. C. 107. W. N. 34, [1913] W. C. & Ins. Rep. 302,

when the request for arbitration was plaint.23 Where a workman who has filed.21

failed in an action to recover damages is Section 1, subsec. 3, with reference to desirous of having compensation for his arbitration, refers only to questions be- injury assessed under the act, he must tween the undertaker and the workman; follow the procedure prescribed by this the right of indemnity given by ý 4 in subsection, and must apply, then and favor of the undertaker against a third there, to the judge trying the action, for person who would have been liable but an assessment of compensation; he canfor the provisions of ý 4 may be enforced not at a subsequent date initiate indein the high court.22

pendent proceedings against his employ

er by a request for arbitration under the h. Recovery of compensation where act.24 If a workman fails in an action action for damages has failed ($ to recover damages for the injury, the 1, subsec. +).

trial court is the proper tribunal to as

sess compensation.25 And it is only The cases construing the provision rel- when the action at law is commenced ative to the alternative remedies open within six months after the injury that to an injured workman may be read with compensation may be awarded upon the profit in connection with the cases con- failure of the law action.26 struing this subsection. See ante, 72. A workman who brings an action at

As to election to come under the Amer- common law and recovers a judgment in ican statutes, see post, 219.

the trial court is not barred from subseAs to exclusiveness of remedy fur- quently applying for compensation upon nished by American statutes, see post, his judgment being reversed by a higher 223.

court, because he did not apply at the This subsection is applicable where it trial court for the assessment of compenis found that no cause of action at com- sation.27 And the fact that a workman mon law and under the act of 1880 was whose action under the employers' liastated by the averments of the com-'bility act has been wrongfully dismissed

21 Wooder v. Lush [1914) 7 B. W. C. C. , McCormick v. Kelliher Lumber Co. (1912) (Eng.) 673.

17 B. C. 422, 6 B. W. C. C. 947. 22 Evans v. Cook [1905] 1 K. B. (Eng.) Upon the failure of an action under the 53, 74 L. J. K. B. N. S. 95, 92 L. T. N. S. employer's liability act of 1880, for an 43, 21 Times L. R. 42, 56 Week. Rep. 81. injury compensation for which has been

23 Henderson v. Glasgow (1900) 2 Sc. assessed under the compensation act, the Sess. Cas. 5th series, 1127, 37 Scot. L. court before whom the action was tried R. 857, 8 Scot. L. T. 118.

has power to deal with the costs of the In Ivenhoe Gold Corp. v. Symonds (1907) action including the proceedings for the 4 Austr. C. L. R. 642, it was held that assessment of compensation. Cattermole v. , the section was applicable to all cases in Atlantic Transport Co. [1902] 1 K. B. which the plaintiff's action failed provided (Eng.) 204, 50 Week. Rep. 129, 85 L. T. he was otherwise entitled to recover under N. S. 513, 18 Times L. R. 102, 71 L. J. the statute and consequently applied to a K. B. N. S. 173, 66 J. P. 4. case where the successful defense was 26 Cribb v. Kynoch [1908] 2 K. B. (Eng.) confession and avoidance.

551, 77 L. J. K. B. N. S. 1004, 99 L. T. 24 By bringing an action at common law N. S. 216, 24 Times L. R. 736, 52 Sol. Jo. or under the employers' liability act of 581, 1 B. W. C. C. 43. 1880 a workman exercises his option and An application for the assessment of comthe matter is at an end unless he has pensation after an unsuccessful action for expressly brought himself within the pro- damages against the employer is incomvisions of $ 1, subsec. 4; he cannot after petent where the action was not raised having failed in his law action launch within six months after the accident. Dur. proceedings under the compensation act in kin v. Distillers Co. [1914; L. 0.) W. C. respect to the same injuries. Edwards v. & Ins. Rep. (Eng.) 28, as cited in Law Godfrey [1899] 2 Q. B. (Eng.) 333, 68 Reports Current Dig. 1914, col. 808. L. J. Q. B. N. S. 666, 80 L. T. N. S. 672, 27 McCormick Kelliher Lumber Co. 15 Times L. R. 365, 47 Week. Rep. 551. (1913; B. C.) 7 B. W. C. C. 1025. The

See also Quinn v. Brown (1906) 8 Sc. court said: "Here the judgment at common Sess, Cas 5th series (Scot.) 855; M'Gowan law was in favor of the plaintiff; and v. Smith [1906--07] S. C. (Scot.) 548. although the judgment was reversed by

25 Greenwood v. Greenwood (1907; Div. this court, the effect of that, as 1 view Ct.) 97 L. T. N. S. (Eng.) 771, 24 Times it, would be to place the parties back in L. R. 24, 1 B. W. C. C. 247.

the position they would have been in at Where a workman has failed in an action the trial if the trial judge had given the at law to recover damages on the ground judgment which this court held should that the master was not guilty of negli- have been given. The plaintiff would then gence, the trial court is the only court have been in a position to ask for an assessin which compensation may be assessed. I ment of compensation.”

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V.

action.29

applies for an assessment of compensa- | ing his incapacity, did not preclude him tion under the act does not estop him from thereafter bringing an action from prosecuting an appeal from the against the employers for negligence. 30 order dismissing the action.28 If, how- A request for assessment of compensaever, the claim has ripened into an award tion made on a motion to apply the verof compensation, the workman is es- dict in favor of the defenders in an actopped from proceeding further in the tion brought independently of the act,

It was argued in this case is in time.31 that as the workman was an infant he An action under Lord Campbell's act was not bound by the award, and that is an action "where injury caused by any the court should proceed upon the as- accident” within the meaning of ý 1, sumption that the option had not been subsec. 4 of the act.32 exercised for the benefit of the infant, Where a workman has brought an acbut it was held that the court had no tion at common law or under the employjurisdiction to inquire into that question, ers' liability act of 1880 and failed in and it must treat the award as valid such action, and has subsequently apsince no steps had been taken to impeach plied for compensation, it is generally it. No mention is made of a former de- held that whether or not costs should be cision of the same court, where it was awarded because of the action at common held that the compensation act by in- law or under the employers' liability act cluding apprentices in the general word is discretionary with the court 33 The "workmen" did not in any respect alter costs where compensation is awarded the law applicable to contracts made by after the bringing of an unsuccessful acinfants, and consequently the fact that tion at law for damages are such as an infant who had been injured made a would have been incurred had the plainclaim under the compensation act, and tiff limited himself to proceedings under the employers had agreed to pay him, the act less the extra costs occasioned to and he had received from them the max- the defendant by reason of plaintiff's imum amount payable under the act dur- proceeding originally by action.34 28 Isaacson v. New Grand (Clapham Junc

In Black v. Fife Coal Co. (1909) S. C. tion) [1903] 1 K. B. (Eng.) 539, 72 L. J. 152, 46 Scot. L. R. 191, it was held that K. B. N. S. 227, 88 L. T. N. S. 291, 19 whese an action had been brought for the Times L. R. 150. It was pointed out that death of a miner against his employers the phrase "the action shall be dismissed” at common law and alternatively for a could not have reference to an erroneous certain sum under the employers' liability decision of the county court judge.

act, and the defenders denied liability but 29 Neale v. Electric & Ordinance Accesso- tendered the amount claimed as the amount ries Co. (1906] 2 K. B. (Eng.) 558, 75 L. J. to which the pursuers were entitled under K. B. N. S. 974, 95 L. T. N. S. 592, 22 the compensation act, and upon the tender Times L. R. 732.

being refused the defenders were assoilzied 30 Stephens v. Dudbridge Ironworks Co. at common law and found liable under the [1904] 2 K. B. (Eng.) 225, 73 L. J. K. B. employers' liability act in the sum tendered, N. S. 739, 68 J. P. 437, 52 Week. Rep. 644, the pursuers were liable in expenses. This 90 L. T. N. S. 838, 20 Times L. R. 492. decision, however, reversed by the

81 Slavin v. Train (1911; Ct. Sess.) 49 House of Lords, which held that the purScot. L. R. 93, [1912] W. C. Rep. 167, 5 suer was entitled to the costs.

5 B. W. B. W. C. C. 525.

C. C. (Eng.) 217. 32 Potter v. Welch [1914] 3 K. B. (Eng.) A workman was not entitled to costs 1020, 30 Times L. R. 644, [1914] W. N. where he brought an action under the 106, 317, 137 L. T. Jo. 290, 83 L. J. K. B. employers' liability act of 1880 when such N. S. 1852, 7 B. W. C. C. 738.

action was dismissed and an award of 33 It is discretionary with the court compensation made under s. 1, subsec. 4 whether the expenses of an unsuccessful of the compensation act, and it appeared trial in an action for damages are to be that all of the costs, with one immaterial deducted from a subsequent award of com- exception, had been incurred because of pensation.

M'Kenna v. United Collieries the bringing of the action under the em(1906) 8 Sc. Sess. Cas. 5th series (Scot.) ployers' liability act. Skeggs V. Keen 969.

(1899) 1 W. C. C. (Eng.) 35. Costs may be allowed when compensa The employers are entitled to deduct tion is awarded under the act after an from an award of compensation the amount action independent of it has failed. Wilson of costs which they recovered in an action v. Kelly (1909) 14 B, C. 436.

for damages for the same injuries, which The costs of bringing a common-law ac action had failed. Ferguson v. Brick & tion, in which the jury found for the de- Supplies (1914; Alberta) 7 B. W. C. C. fendants, may be deducted from the amount 1054. awarded the workman under the act. Cohen 34 McCormick v. Kelliher (1912) 7 D. v. Seabrook Bros. (1908; Div. Ct.) 25 Times L. R. (B. C.) 732. L. R. (Eng.) 176.

Where a vorkman fails in an action

was

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