ally produced within the meaning of the Quebec act. Intoxication has been held to be serious and wilful misconduct. As to whether injuries by accident received by an employee while he is intoxicated "arise out of and in the course of his employment," see note 47 ante. The making of a false representation by an infant that he is of full age in order to secure employment is not "serious and wilful misconduct or serious neglect," where it appears that the accident is not solely attributable to the misrepresentation.5 It is to be noted that under the act of 1906, serious and wilful misconduct is not a bar to compensation where the injury results in death or in serious and permanent disablement. What constitutes serious and permanent disablement has been passed upon in a few cases." 3 Jetté v. Grand Trunk R. Co. (1911) Rap. Jud. Quebec, 40 C. S. 204 (brakeman jumped on a moving train). 4 Going up a ladder while intoxicated, carrying unnecessarily a large piece of timber and failing to use the hands in the proper and ordinary way for support, is serious and wilful misconduct. Burrell v. Avis (1898; C. C.) 106 L. T. Jo. (Eng.) 61, 1 W. C. C. 129. Being drunk and unfit to work is serious and wilful misconduct. M'Groarty v. Brown (1906) 8 Sc. Sess. Cas. 5th series (Scot.) 809. 5 Darnley v. Canadian P. R. Co. (1908) 14 B. C. 15, 2 B. W. C. C. 505. 6"I think that the 'serious and wilful misconduct' section of the act-§ 1, subsec. (2) (c) really throws great light on the present case. It is not every misconduct that prevents a workman from recovering compensation. It must be proved that the misconduct was 'serious and wilful;' and although the present case does not come under that provision,-because for some reason the section does not apply to a case where the accident results in death, -still the principle that it is not every misconduct which disentitles a workman to the benefit of the act must apply in this case as in every other." Cozens-Hardy, M. R., in Robertson v. Allan Bros. & Co. (1908) 1 B. W. C. C. (Eng.) 172. Serious and wilful misconduct is not material where the workman has been seriously and permanently disabled. Jackson v. Denton Colliery Co. [1914] W. C. & Ins. Rep. (Eng.) 91, 110 L. T. N. S. 559, 7 B. W. C. C. 92. In Weighill v. South Hetton Coal Co. [1911] 2 K. B. (Eng.) 757, in discussing the effect of the provision of the act of 1906, which provides that serious and wilful misconduct is not a bar to compensation where the injury results in "death or serious and permanent disablement," Cozens-Hardy, M. R., said: "Serious and wilful misconduct within the sphere of the Where the county court judge on the hearing permitted an amendment so as to allow the employer to set up the defense of serious and wilful misconduct, which was not raised by the answer nor in the correspondence between the parties, the workman is entitled to an adjournment in order to call evidence in rebuttal.8 The phrase "serious neglect" in § 2, subsec. (c) of the British Columbia act does not refer to the conduct of the workman after the injury.9 Under the Quebec act, the compensation recoverable by an injured employee is reducible to the extent that the injuries were caused by the fault of the workman.10 Serious and wilful misconduct to prevent a recovery must be the proximate cause of the injury. And the burden employment does not prevent the workman's dependents from claiming compensation: serious and wilful misconduct outside the sphere of his employment is entirely different. Serious and wilful misconduct outside the sphere of his employment does. not bring within the sphere of the employment that which but for the serious and wilful misconduct would be outside of it." Although a collier in going into a dangerous working in disobedience to the colliery special rules, and against the warnings of a fireman or overlooker, was guilty of "serious and wilful" misconduct, yet if he did so in an honest attempt to further that which he was instructed to effect, his dependents may secure compensation for his death, which resulted from such act. Harding v. Brynddu Colliery Co. [1911] 2 K. B. (Eng.) 747, 80 L. J. K. B. N. S. 1052, 105 L. T. N. S. 55, 27 Times L. R. 500, 55 Sol. Jo. 599, 4 B. W. C. C. 269. 7 A workman who has lost two fingers of his right hand is seriously and permanently disabled, and is entitled to comoccasioned by his "serious and wilful" mispensation notwithstanding the injury was conduct. Hopwood v. Olive (1910) 102 L. T. N. S. (Eng.) 790, 3 B. W. C. C. 357. The loss of the top joint of the middlefinger of the right hand of a machinist may be found to be serious and permanent disablement within the meaning of § 1 (2) Brewer v. Smith, (1913) (3) of the act. 6 B. W. C. C. (Eng.) 651. 8 Casey v. Humphries [1913] W. N. (Eng.) 221, 29 Times L. R. 647, 57 Sol. Jo. 716, [1913] W. C. & Ins. Rep. 485, 6 B. W. C. C. 520, 4 N. C. C. A. 881. 9 Powell v. Crow's Nest Pass Coal Co.. (1915) 23 D. L. R. (B. C.) 57. 10 Croteau v. Victoriaville Furniture Co. (1911) Rap. Jud. Quebec, 40 C. S. 44. 11 A breach of a statutory rule as tomines is "serious and wilful misconduct," but such breach is not a bar to recovery, unless it is the cause of the accident. Pra- 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 Whether or not a workman is guilty of serious or wilful misconduct is a question of fact, 13 g. Arbitration for settlement of disputes (§ 1, subsec. 3). In order that this subsection may apply, it must be shown that a question has arisen and that it has not been settled by agreement.14 Where a question as to the amount or duration of compensation has been settled by agreement, there is no room for arbitration. The workman's Generally as to the powers of an arbi-proper course is to get a memorandum of ties v. Broxburn Oil Co. [1906-07] S. C. (Scot.) 581. In order that a breach of a statutory rule as to mines shall amount to "serious and wilful misconduct," it must be shown to have been the cause of the accident. Allan v. Glenborg Union Fire Clay Co. [1906-07] S. C. (Scot.) 967. The death of a miner killed while riding on top of a loaded hutch in the mine, in breach of one of the rules in force in the mine, by the fall of a stone from the roof of the tunnel in which the hutch was running, is not "attributable" to his serious and wilful misconduct. Glasgow Coal Co. v. Sneddon (1905) 7 Sc. Sess. Cas. 5th series (Scot.) 485. Lord M'Laren observed: "What is included under the word 'attributable?' I think that under that word there must be some causal relation between the misconduct of a workman and the injury which he suffers. It is enough that it is a material cause that in some way contributes to the unfortunate result. Therefore I think that the question to be considered under the word 'attributable' is very much the same as we have to consider in cases at common law where there is fault on the part of employer or his servant, and the meaning is that the injury was either caused solely by the workman's own fault, or was contributed to materially by his act or fault." 12 British Columbia Sugar Ref. Co. v. Granick (1910) 44 Can. S. C. 105, affirming 15 B. C. 198. C. 13 Johnson V. Marshall [1906] A. (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; Casey v. Humphries (1913) 6 B. W. C. C. (Eng.) 520, [1913] W. N. 221, 29 Times L. R. 647, 57 Sol. Jo. 716. Whether or not a workman is guilty of serious and wilful misconduct is a question of fact, and the court will not interfere with the finding of the arbiter. Leishmann v. Dixon [1910] S. C. 498, 47 Scot. L. R. 410, 3 B. W. C. C. 560. Whether the fact that a farm servant fastened the reins to the breeching, instead of holding them in his hand, in violation of the general turnpike act, amounts to serious and wilful misconduct, is a question of fact, and the finding by the sheriffsubstitute that it did not will not be reviewed on appeal. Mitchell v. Whitton [1906-07] S. C. (Scot.) 1267. 14 Field v. Longden [1902] 1 K. B. (Eng.) 47, 71 L. J. K. B. N. S. 120, 66 J. P. 291, 50 Week. Rep. 212, 85 L. T. N. S. 571, 18 Times L. R. 65. There a workman, having been incapacitated for work by an accident arising out of, and in the course of, his employment, his employers had, since the second week after the accident, paid to him, by way of compensation, weekly payments of the full amount mentioned in schedule I., § 1 (b) (see subtitle B. post), and promised to continue to do so during the period of his incapacity; but the workman, nevertheless, filed a request for arbitration in the county court, and the county court judge made an award for compensation in his favor. It was held, that, under the subsection it was a condition precedent to the jurisdiction of the county court judge that a question should have arisen as to the liability to pay, or as to the amount or duration of compensation under the act, and that, no such question having arisen, the county court judge had no jurisdiction to make an award. The petition for arbitration is incompetent where, at the date when the petition was presented, no dispute had arisen between the parties as to compensation, and the compensation was not in arrears. Caledon Shipbuilding & Engineering Co. v. Kennedy (1906) 8 Sc. Sess. Cas. 5th series (Scot.) 960. There is no dispute so as to give the county court power to award costs where the employers, not knowing that the injured workman was a minor, paid him only a portion of the compensation to which he as a minor was entitled, but eight days after receiving notice of that fact and a demand for the balance tendered such balance, which was refused because certain alleged costs were not tendered. Smith v. Abbey Park Steam Laundry Co. (1909) 2 B. W. C. C. (Eng.) 142. A petition for arbitration is incompetent where, at the date when the petition was presented, no question had arisen between the parties as to the duration of the compensation; and the mere fact that there was no agreement between the parties capable of registration does not show that a question had arisen between them, so as to entitle the workman to present a petition for arbitration. Gourlay Bros. v. Sweeney (1906) 8 Sc. Sess. Cas. 5th series (Scot.) 965. The refusal of the employer, who had been voluntarily paying compensation to a workman, to sign an agreement, does not give the county court judge jurisdiction to make an award, since it does not pre agreement recorded.15 An implied agreement is sufficient to take away the jurisdiction of the arbitrator.16 The dispute to be settled by the arbitrator may be as to the liability to pay compensation,17 as to the amount of compensation payable,18 or as to the duration of the incapacity.19 The dispute must exist at the present time; if the employer is paying full compensation there is no quessent a question as to the liability to pay compensation, or as to the amount of duration of compensation. Mercer v. Hilton (1909) 3 B. W. C. C. (Eng.) 6. 15 Dunlop v. Rankin (1901) 4 Sc. Sess. Cas. 5th series, 203, 39 Scot. L. R. 146. See also Cochrane v. Traill (Ct. of Sess.) 2 F. (Scot.) 794, as cited in 2 Mew's Dig. Supp. 1576. 16 Where there is an implied agreement between the parties, there is no jurisdiction for an arbitrator. Jones v. Great Central R. Co. (1901) 4 W. C. C. (Eng.) 23; Webster v. London & N. W. R. Co. (1901; C. C.) 3 W. C. C. (Eng.) 52; Busby v. Richardson (1901; C. C.) 3 W. C. C. (Eng.) 54; Trenear v. Wells (1900; C. C.) 3 W. C. C. (Eng.) 58. 17 In Barron v. Carmichael (1912) 5 B. W. C. C. (Eng.) 436, Buckley, L. J., said: "Jurisdiction under the act arises only if a question arises upon some one of three subject-matters: firstly, liability to pay compensation; secondly, amount of compensation; and, thirdly, duration of compensation." 18 The county court judge has jurisdiction where the correspondence between the parties shows that although the employer agreed that the workman was entitled to compensation, they could not agree upon the amount thereof. Brooks v. Knowles (1911) 5 B. W. C. C. (Eng.) 15. Where the applicant filed an application for compensation at 12s. 6d., the employer admitting liability and present total incapacity and submitting to an award of 10s. per week during total disability, the amount payable during partial incapacity to be settled thereafter, there was a dispute at the time of application so as to give the county court judge jurisdiction, although the workman had before the hearing agreed to accept 10s. compensation but objected to the limitation to total incapacity. Higgins v. Poulson (1911) 5 B. W. C. C. (Eng.) 66. 19 Arbitration is competent although the employers admitted liability under the act and there was no dispute as to the compensation, but the employers insisted that the workman sign a receipt which provided that the payment admitted liability only for compensation to date of payment, and further liability, if any, was to be determined week by week. Summerlee Iron Co. v. Freeland [1913] A. C. (Eng.) 221, 82 L. J. P. C. N. S. 102, 108 L. T. N. S. 465, 29 Times L. R. 277, 57 Sol. Jo. 281, [1913] W. N. 34, [1913] W. C. & Ins. Rep. 302, tion for arbitration, although some dispute may arise in the future.20 An appeal from a decision of the county court judge dismissing an application for arbitration upon the ground that no question has arisen cannot be sustained upon the ground that the correspondence between the parties showed that a difference had arisen which was not raised 6 B. W. C. C. 255, [1913] S. C. (H. L.) 3. Where the employer raises the question of duration of incapacity by his answer, he cannot be heard to say that there was no dispute at the time of the application. Barron v. Carmichael (1912) 5 B. W. C. C. (Eng.) 436. An application for arbitration is competent where, although the employers were paying full compensation and had made no threat to stop payment, they had barred the recording of a memorandum of agreement by a receipt signed by the applicant which provided that the payment should continue only while the employers were of the opinion that the incapacity continued. Brown v. Hunter (1912) 49 Scot. L. R. 695, 5 B. W. C. C. 589. A question has arisen for arbitration under § 1 (3) of the act where the employer, although admitting liability to pay compensation during total incapacity, refuses to admit liability to pay compensation in event of partial incapacity and the workman declines to accept an admission limited to total incapacity only. Cooper v. Wales (1915) 31 Times L. R. (Eng.) 506. 20 Where the employer was paying full compensation, the workman was not entitled to arbitration merely because a question might thereafter arise as to whether the compensation which was being made may or may not have to be reviewed in accordance with condition of health and other circumstances affecting the workman. Payne v. Fortescue [1912] 3 K. B. (Eng.) 346, 81 L. J. K. B. N. S. 1191, 107 L. T. N. S. 136, 57 Sol. Jo. 81, [1912] W. N. 216, 5 B. W. C. C. 634. No question for arbitration has arisen where the employers have admitted liability and paid full compensation up to the day of the application for arbitration, although the employers refused to agree to pay compensation during partial incapacity. Bedwell v. London Electric R. Co. (1914) 7 B. W. C. C. (Eng.) 685. There is no question for arbitration where incapacity and liability are admitted and full compensation being paid, although the employer refused to make any agreement as to payment after total incapacity had ceased, but was willing to sign an agreement that the amount of compensation payable during partial incapacity was to be settled afterward. Sampson v. General Steam Nav. Co. [1914] W. C. & Ins. Rep. (Eng.) 36, 7 B. W. C. C. 107. when the request for arbitration was filed.21 Section 1, subsec. 3, with reference to arbitration, refers only to questions between the undertaker and the workman; the right of indemnity given by 4 in favor of the undertaker against a third person who would have been liable but for the provisions of § 4 may be enforced in the high court.22 h. Recovery of compensation where action for damages has failed (8 1, subsec. 4). The cases construing the provision relative to the alternative remedies open to an injured workman may be read with profit in connection with the cases construing this subsection. See ante, 72. As to election to come under the American statutes, see post, 219. As to exclusiveness of remedy furnished by American statutes, see post, 223. This subsection is applicable where it is found that no cause of action at common law and under the act of 1880 was stated by the averments of the com 21 Wooder v. Lush [1914] 7 B. W. C. C. (Eng.) 673. 22 Evans v. Cook [1905] K. B. (Eng.) 53, 74 L. J. K. B. N. S. 95, 92 L. T. N. S. 43, 21 Times L. R. 42, 56 Week. Rep. 81. 23 Henderson v. Glasgow (1900) 2 Sc. Sess. Cas. 5th series, 1127, 37 Scot. L. R. 857, 8 Scot. L. T. 118. In Ivenhoe Gold Corp. v. Symonds (1907) 4 Austr. C. L. R. 642, it was held that the section was applicable to all cases in which the plaintiff's action failed provided he was otherwise entitled to recover under the statute and consequently applied to a case where the successful defense was a confession and avoidance. 24 By bringing an action at common law or under the employers' liability act of 1880 a workman exercises his option and the matter is at an end unless he has expressly brought himself within the provisions of § 1, subsec. 4; he cannot after having failed in his law action launch proceedings under the compensation act in respect to the same injuries. Edwards v. Godfrey [1899] 2 Q. B. (Eng.) 333, 68 L. J. Q. B. N. S. 666, 80 L. T. N. S. 672, 15 Times L. R. 365, 47 Week. Rep. 551. See also Quinn v. Brown (1906) 8 Sc. Sess. Cas 5th series (Scot.) 855; M'Gowan v. Smith [1906-07] S. C. (Scot.) 548. 25 Greenwood v. Greenwood (1907; Div. Ct.) 97 L. T. N. S. (Eng.) 771, 24 Times L. R. 24, 1 B. W. C. C. 247. plaint.23 Where a workman who has failed in an action to recover damages is desirous of having compensation for his injury assessed under the act, he must follow the procedure prescribed by this subsection, and must apply, then and there, to the judge trying the action, for an assessment of compensation; he cannot at a subsequent date initiate independent proceedings against his employer by a request for arbitration under the act.24 If a workman fails in an action to recover damages for the injury, the trial court is the proper tribunal to assess compensation.25 And it is only when the action at law is commenced within six months after the injury that compensation may be awarded upon the failure of the law action.26 A workman who brings an action at common law and recovers a judgment in the trial court is not barred from subsequently applying for compensation upon his judgment being reversed by a higher court, because he did not apply at the trial court for the assessment of compensation.27 And the fact that a workman whose action under the employers' liability act has been wrongfully dismissed McCormick v. Kelliher Lumber Co. (1912) 17 B. C. 422, 6 B. W. C. C. 947. Upon the failure of an action under the employer's liability act of 1880, for an injury compensation for which has been assessed under the compensation act, the court before whom the action was tried has power to deal with the costs of the action including the proceedings for the assessment of compensation. Cattermole v. Atlantic Transport Co. [1902] 1 K. B. (Eng.) 204, 50 Week. Rep. 129, 85 L. T. N. S. 513, 18 Times L. R. 102, 71 L. J. K. B. N. S. 173, 66 J. P. 4. 26 Cribb v. Kynoch [1908] 2 K. B. (Eng.) 551, 77 L. J. K. B. N. S. 1004, 99 L. T. N. S. 216, 24 Times L. R. 736, 52 Sol. Jo. 581, 1 B. W. C. C. 43. An application for the assessment of compensation after an unsuccessful action for damages against the employer is incompetent where the action was not raised within six months after the accident. Durkin v. Distillers Co. [1914; L. O.] W. C. & Ins. Rep. (Eng.) 28, as cited in Law Reports Current Dig. 1914, col. 808. 27 McCormick V. Kelliher Lumber Co. (1913; B. C.) 7 B. W. C. C. 1025. The court said: "Here the judgment at common law was in favor of the plaintiff; and although the judgment was reversed by this court, the effect of that, as I view it, would be to place the parties back in 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.ment of compensation." action An action under Lord Campbell's act is an action "where injury caused by any accident" within the meaning of 1, subsec. 4 of the act.3 32 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 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- diet in favor of the defenders in an actopped from proceeding further in the tion brought independently of the act, action.29 It was argued in this case is in time.31 that as the workman was an infant he was not bound by the award, and that the court should proceed upon the assumption that the option had not been exercised for the benefit of the infant, but it was held that the court had no jurisdiction to inquire into that question, and it must treat the award as valid since no steps had been taken to impeach it. No mention is made of a former decision of the same court, where it was held that the compensation act by including apprentices in the general word "workmen" did not in any respect alter the law applicable to contracts made by infants, and consequently the fact that an infant who had been injured made a claim under the compensation act, and the employers had agreed to pay him, and he had received from them the maximum amount payable under the act dur 28 Isaacson v. New Grand (Clapham Junction) [1903] K. B. (Eng.) 539, 72 L. J. K. B. N. S. 227, 88 L. T. N. S. 291, 19 Times L. R. 150. It was pointed out that the phrase "the action shall be dismissed" could not have reference to an erroneous decision of the county court judge. 29 Neale v. Electric & Ordinance Accessories Co. [1906] 2 K. B. (Eng.) 558, 75 L. J. K. B. N. S. 974, 95 L. T. N. S. 592, 22 Times L. R. 732. 30 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. 31 Slavin v. Train (1911; Ct. Sess.) 49 Scot. L. R. 93, [1912] W. C. Rep. 167, 5 B. W. C. C. 525. 32 Potter v. Welch [1914] 3 K. B. (Eng.) 1020, 30 Times L. R. 644, [1914] W. N. 106, 317, 137 L. T. Jo. 290, 83 L. J. K. B. N. S. 1852, 7 B. W. C. C. 738. 33 It is discretionary with the court whether the expenses of an unsuccessful trial in an action for damages are to be deducted from a subsequent award of compensation. M'Kenna v. United Collieries (1906) 8 Sc. Sess. Cas. 5th series (Scot.) 969. Costs may be allowed when compensation is awarded under the act after an action independent of it has failed. Wilson v. Kelly (1909) 14 B. C. 436. The costs of bringing a common-law action, in which the jury found for the defendants, may be deducted from the amount awarded the workman under the act. Cohen v. Seabrook Bros. (1908; Div. Ct.) 25 Times L. R. (Eng.) 176. Where a workman has brought an action at common law or under the employers' liability act of 1880 and failed in such action, and has subsequently applied for compensation, it is generally held that whether or not costs should be awarded because of the action at common law or under the employers' liability act is discretionary with the court.33 The costs where compensation is awarded after the bringing of an unsuccessful action at law for damages are such as would have been incurred had the plaintiff limited himself to proceedings under the act less the extra costs occasioned to the defendant by reason of plaintiff's proceeding originally by action.34 In Black v. Fife Coal Co. (1909) S. C. 152, 46 Scot. L. R. 191, it was held that where an action had been brought for the death of a miner against his employers at common law and alternatively for a certain sum under the employers' liability act, and the defenders denied liability but tendered the amount claimed as the amount to which the pursuers were entitled under the compensation act, and upon the tender being refused the defenders were assoilzied at common law and found liable under the employers' liability act in the sum tendered, the pursuers were liable in expenses. This decision, however, was reversed by the House of Lords, which held that the pursuer was entitled to the costs. 5 B. W. C. C. (Eng.) 217. A workman was not entitled to costs where he brought an action under the employers' liability act of 1880 when such action was dismissed and an award of compensation made under § 1, subsec. 4 of the compensation act, and it appeared that all of the costs, with one immaterial exception, had been incurred because of the bringing of the action under the employers' liability act. Skeggs v. Keen (1899) 1 W. C. C. (Eng.) 35. The employers are entitled to deduct from an award of compensation the amount of costs which they recovered in an action for damages for the same injuries, which action had failed. Ferguson v. Brick & Supplies (1914; Alberta) 7 B. W. C. C. 1054. 34 McCormick v. Kelliher (1912) 7 D. L. R. (B. C.) 732. Where a workman fails in an action |