صور الصفحة
PDF
النشر الإلكتروني

therein;90 but the mere payment of some compensation is not such a waiver as a matter of law.91

V. Substitution of scheme approved by friendly society for provisions of the act (§ 3).

a. Text of $ 3.

Section 3. (1) If the registrar of friendly societies, after taking steps to ascertain the views of the employer and workmen, certifies that any scheme of compensation, benefit, or insurance for the workmen of an employer in any employment, whether or not such scheme includes other employers and their workmen, provides scales of compensation not less favorable to the workmen and their dependents than the corresponding scales contained in this act, and that, where the scheme provides for contributions by the workmen, the scheme confers benefits at least equivalent to those contributions, in addition to the benefits to which the workmen would have been entitled under this act, and that a majority (to be ascertained by ballot) of the workmen to whom the scheme is applicable are in favor of such scheme, the employer may, whilst the certificate is in force, contract with any of his workmen that the provisions of the scheme shall be substituted for the provisions of this act, and thereupon the employer shall be liable only in accordance with the scheme; but, save as aforesaid, this act shall apply notwithstanding any consufficient to enable the court to draw the inference that the workman had reasonable cause, within the meaning of the statute, for not making the claim within six months from the date of the accident. The master, of the rolls, in Luckie v. Merry, stated that the Healy Case could not be authority upon this point because, in that case, there was no question of reasonable cause whatsoever. 90 Employers, by paying compensation for seven weeks, waived any defect in the notice of accident. Davies v. Point of Ayr Collieries (1909) 2 B. W. C. C. (Eng.) 157. 91 The mere fact that the employer has made weekly payments to a workman is not such evidence of an admission of liability and of an agreement to pay compensation as will enable the workman to commence proceedings under the act after the expiration of six months from the accident, where the employer took a receipt which stated that the money was received on account of compensation which might be or become due to the workman under the act. Rendall v. Hill's Dry Docks & Engineering Co. [1909] 2 Q. B. (Eng.) 245, 69 L. J. Q. B. N. S. 554, 64 J. P. 451, 48 Week. Rep. 530, 82 L. T. N. S. 521, 16

tract to the contrary made after the commencement of this act.

(2) The registrar may give a certifi cate, to expire at the end of a limited period of not less than five years, and may from time to time renew, with or without modifications, such a certificate, to expire at the end of the period for which it is renewed.

(3) No scheme shall be so certified which contains an obligation upon the workmen to join the scheme as a condition of their hiring, or which does not contain provisions enabling a workman to withdraw from the scheme.

(4) If complaint is made to the registrar of friendly societies, by or on behalf of the workmen of any employer, that the benefits conferred by any scheme no longer conform to the conditions stated in subsection (1) of this section, or that the provisions of such scheme are being violated, or that the scheme is not being fairly administered, or that satisfactory reasons exist for revoking the certificate, the registrar shall examine into the complaint, and, if satisfied that good cause exists for such complaint, shall, unless the cause of complaint is removed, revoke the certificate.

(5) When a certificate is revoked or expires, any moneys or securities held for the purpose of the scheme shall, after due provision has been made to discharge the liabilities already accrued, be distributed as may be arranged between the employer and workmen, or as may be determined by the registrar of friendly Times L. R. 368, distinguishing Wright v. Bagnall [1900] 2 Q. B. (Eng.) 240, 82 L. T. N. S. 346, 69 L. J. Q. B. N. S. 551, 64 J. P. 420, 48 Week. Rep. 533, 16 Times L. R. 327, supra.

The fact that an employer for a period of about six months voluntarily paid an injured workman a sum in excess of what he would have had to pay under the act does not bar him from pleading the omis sion to begin proceedings within the prescribed six months, where nothing at all had been said between the parties as to the act. O'Neill v. Motherwell [1906-07] S. C. (Scot.) 1076.

Employers are not estopped from claiming that the act is inapplicable by the fact that shortly after the accident they wrote to the workman's daughter that if she would forward them a certificate of the doctor attending him, stating the nature of the injuries and the probable period of injury, they would pay him whatever was due him under the act during his illness, dating one week from the day of the accident, and that they did not so pay him for a period of about six months. Ross v. Smith (1909) So. Austr. L. R. 128.

societies in the event of a difference of In such a case the county court judge opinion.

(6) Whenever a scheme has been certified as aforesaid, it shall be the duty of the employer to answer all such inquiries and to furnish all such accounts in regard to the scheme as may be made or required by the registrar of friendly societies.

(7) The chief registrar of friendly societies shall include in his annual report the particulars of the proceedings of the registrar under this act.

(8) The chief registrar of friendly societies may make regulations for the purpose of carrying this section into effect.

[The changes in § 3 are for the most part mere matters of detail.]

b. Construction of this section. The provision in the statute against contracting out of the statute refers only to contracts as to future injuries.92 A penal clause in an agreement whereby a workman is to lose all rights to compensation unless he insists in an application for examination by a medical referee under certain circumstances is void under § 3, subsec. 1 of the act.93 A contract, under § 3, need not be in writing.94 A workman who has agreed to accept the provisions of a duly certified scheme cannot resort to the act in any way.95

92 Ryan v. Hartley [1912] 2 K. B. (Eng.) 150, 81 L. J. K. B. N. S. 666, 106 L. T. N. S. 702, [1912] W. C. R. 236, [1912] W. N. 115, 5 B. W. C. C. 407.

1

|

has no jurisdiction of the matter.96 And no appeal lies to the court from the decision of a committee appointed under a scheme formed by the employer and accepted by the workman, where all the requirements of the act had been fulfilled, and the scheme provided that the committee had power to determine all claims arising under the scheme.97 But the county court judge is not ousted if the scheme has not been properly certified.98 And a minor who has assented to a duly certified contracting-out scheme is not bound to accept payment of amount given by such scheme if it is not beneficial to him.99

Where a scheme purports to be intended as a substitute for the act, the word "accident" in the scheme will be construed as having the same meaning as in the act, and to include disablement from disease described in § 8 of the act.1

The employer is not entitled to deduct from the workman's wages a contribution to a scheme of compensation where the original scheme to which the workman had consented had expired by lapse of time, and the new scheme certified by the registrar of friendly societies had not been agreed to by the workman.2

As to the recertifying of schemes under the act of 1897, so as to render them valid under the act of 1906, see post 128. the chief registrar of friendly societies is outside the provisions of the act altogether. Horn v. Lords Comrs. of Admiralty [1911] 1 K. B. (Eng.) 24, 80 L. J. K. B. N. S.

93 British & S. A. Steam Nav. Co. v. Neil 278, 103 L. T. N. S. 614, 27 Times L. R. (1910) 3 B. W. C. C. (Eng.) 413.

94 Berry v. Canteen & Mess. Co-op. Soc. (1910) 3 B. W. C. C. (Eng.) 449.

95 Godwin v. Lords Comrs. of Admiralty [1913] A. C. (Eng.) 638, 82 L. J. K. B. N. S. 1126, 109 L. T. N. S. 428, 29 Times L. R. 774, [1913] W. N. 267, 6 B. W. C. C. 788, affirming Court of Appeal [1912] 2 K. B. 26, 81 L. J. K. B. N. S. 532, 106 L. T. N. S. 136, 28 Times L. R. 229, [1912] W. C. Rep. 49, 5 B. W. C. C. 229, 56 Sol. Jo. 307, [1912] W. N. 45.

A workman who has come in under a scheme, duly certified under § 3 of the act, and has signed an agreement, is outside of the provisions of the act altogether, and cannot subsequently obtain compensation from the employer, although the scheme was terminated in consequence of its not being recertified under the act. Howarth v. Knowles [1913] 3 K. B. (Eng.) 675, 82 L. J. K. B. N. S. 1325, 109 L. T. N. S. 278, 29 Times L. R. 667, 57 Sol. Jo. 471, [1913] W. N. 237, 6 B. W. C. C. 596.

96 A workman who has signed an agreement to accept compensation certified by

[ocr errors]

84, 4 B. W. C. C. 1.

97 Allen v. Great Eastern R. Co. [1914] 2 K. B. (Eng.) 243, 110 L. T. N. S. 498, [1914] W. N. 33, 83 L. J. K. B. N. S. 898, [1914] W. C. & Ins. Rep. 388.

98 Where a duly certified scheme provided that the funds were to be managed in accordance with rules not inconsistent with the scheme, to be framed from time to time, which rules had not been certified, and it was found as a matter of fact that the rules were inconsistent with the scheme, the scheme, as modified by the rules, cannot be said to be a properly certified scheme. Moss v. Great Eastern R. Co. [1909] 2 K. B. (Eng.) 274, 78 L. J. K. B. N. S. 1048, 100 L. T. N. S. 747, 25 Times L. R. 466, 2 B. W. C. C. 168.

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

1 Leaf v. Furze (Div. Ct.) [[1914] 3 K. B. (Eng.) 1068, 83 L. J. K. B. N. S. 1822.

2 Wilson v. Ocean Coal Co. (1905) 21 Times L. R. (Eng.) 621, affirming 21 Times L. R. 195.

VI. Liability to servants of contractors under such contractor of any work, and

(84).

a. Text of § 4.

the undertakers would, if such work were executed by workmen immediately employed by them, be liable to pay compensation under this act to those workmen in respect of any accident arising out of, and in the course of, their employment, the undertakers shall be liable to pay to any workmen employed in the execution of the work any compensation which is payable to the workmen (whether under this act, or in respect of personal negligence or wilful act independently of this act) by such contractor, or would be so payable if such contractor were an employer to whom this act applies: Provided, that the undertakers shall be entitled to be indemnified by any other person who would have been liable independently of this section.

Section 4. (1) Where any person (in this section referred to as the principal), in the course of or for the purposes of his trade or business, contracts with any other person (in this section referred to as the contractor) for the execution, by or under the contractor, of the whole or any part of any work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this act which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal, then, in the application of this act, references to the principal shall be sub-contract with any person for the exestituted for references to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed: Provided that, where the contract relates to threshing, plowing, or other agricultural work, and the contractor provides and uses machinery by mechanical power for the purpose of such work, he and he alone shall be liable under this act to pay compensation to any workman employed by him on such work.

(2) Where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by any person who would have been liable to pay compensation to the workman independently of this section, and all questions as to the right to and amount of any such indemnity shall in default of agreement, be settled by arbitration under this act.

(3) Nothing in this section shall be construed as preventing a workman recovering compensation under this act from the contractor instead of the principal.

(4) This section shall not apply in

any case where the accident occurred elsewhere than on or in or about premises on which the principal has undertaken to execute the work, or which are otherwise under his control or management.

[Section 4 of the original act provided as follows:

Section 4. Where, in an employment to which this act applies, the undertakers, as hereinafter defined, contract with any person for the execution by or

This section shall not apply to any

cution by or under such contractor of any work which is merely ancillary or incidental to, and is no part of, or process in, the trade or business carried on by such undertakers respectively.]

b. In general.

The meaning of the word "undertakers," as used in this section, is discussed in connection with the cases discussing the meaning of the word as used in the factory act. See post, 209.

It is stated in respect to § 4 of the earlier act, and the statement applies equally well to this section of the present act, that it "contemplates the case of persons who, being undertakers in respect to a particular class of business, substitute for themselves a contractor to do some part of that business, and provides that the workmen of such a contractor shall have the same rights against such persons as they would have if they were employed by them." principal will not be held liable for compensation to a man who has no claim against the contractor.4

The

The act does not impose joint liability, from both the principal and the conso that an application for compensation tractor will be dismissed; 5 and where

3 Collins, L. J. in Wrigley v. Bagley [1901] 1 K. B. (Eng.) 780.

4 Marks v. Carne [1909] 2 K. B. (Eng.) 516, 78 L. J. K. B. N. S. 853, 100 L. T. N.

S. 950, 25 Times L. R. 620, 53 Sol. Jo. 561,
2 B. W. C. C. 186 (the workman was the
house with him).
son of the contractor, dwelling in the same

5 The widow and children of a workman who was killed while working in the employment of a glass merchant, on the roof

a workman employed by a contractor occupancy in the course of or for the was injured, and proceeded against the purposes" of the trade or business of a contractor, and recovered compensation, real estate agent.10 And a company enhe could not thereafter proceed against gaged in the manufacture of wood is the principal, although the contractor not liable for compensation to a workwent bankrupt and his insurance com- man employed by a contractor to stack pany went into liquidation. wood, where it appeared that the manufacturers never stacked the wood themselves, but always had it stacked by contract. So, a painter employed casually as an agent to do work on the premises of his principal, who was a gentleman living in the country, without business, is not within the statute, since the employer does not carry on a “trade or business." 12

A subcontractor is liable to indemnify the principal contractor under the provisions of 4 of the act, where the latter has been obliged to pay compensation to one of the subcontractor's employees.7 c. "In the course of or for the purposes of" the principal's "trade or business."

The work of putting gravel on approaches to a level crossing, which has been ordered by the Board of Railroad Commissioners, is work for the purpose of the trade or business of the railway company, but is not "in the way of their trade or business." 13 But the repairing of the roof of buildings used as a store and as a granary has been held to be for the purposes of the trade of the

The work of cleaning the boilers of one of their ships lying in a harbor, which work is left to independent contractors, is not undertaken by the shipowners "in the course of or for the purposes of" their trade or business; nor is the tarring on the outside of a tank used by chemical manufacturers in the course of or for the purpose of the trade or business of the manufacturers; 9 nor is the repairing of a house for his own'occupant of the store or granary, so as of a building occupied by a firm of wool manufacturers, cannot claim compensation from both, and an application for compensation from both will be dismissed. Herd v. Summers (1905) 7 Sc. Sess. Cas. 5th series (Scot.) 870.

6 Meier v. Dublin [1912] 2 I. R. 129, [1913] W. C. & Ins. Rep. 30, 46 Ir. Law Times, 233, 6 B. W. C. C. 441.

7 Cooper v. Wright [1902] A. C. (Eng.) 302, 71 L. J. K. B. N. S. 642, 86 L. T. N. S. 776, 18 Times L. R. 622, 4 W. C. C. 75, 51 Week. Rep. 12; Wagstaff v. Perks (1902) 51 Week. Rep. (Eng.) 210, 87 L. T. N. S. 558, 5 W. C. C. 110, 19 Times L. R. 112.

8 Spiers v. Elderslie S. S. Co. [1909] S. C. 1259, 46 Scot. L. R. 893 (not one of the normal operations which form the ordinary business of a ship owner); Luckwell v. Auchen Steam Shipping Co. [1913] W. C. & Ins. Rep. (Eng.) 167, 108 L. T. N. S. 52, 12 Asp. Mar. L. Cas. 286, 6 B. W. C. C.

51.

9 A firm of chemical manufacturers is not liable to pay compensation to a workman of a person who had contracted to tar the outside of tanks used by them in their business. Zugg v. Cunningham [1908] S. C. (Scot.) 827. Lord M'Laren observed: "In the present circumstances I am unable to see that the work of tarring the building in question was work undertaken by the appellants, whose business is not the erection or repair of structures, but the manufacture of chemicals."

10 Where a surveyor and real estate agent, who had been instructed to let a dwelling house by its owner, decided to take the house himself, and contracted to have the house repaired, as he was authorized to do by the owner, the contract

does not relate to work undertaken by the surveyor in the course of and for the purposes of his business. Brine v. May [1913] W. C. & Ins. Rep. (Eng.) 148, 6 B. W. C. C. 134.

11 Hockley v. West London Timber & Joinery Co. [1914] 3 K. B. (Eng.) 1013, 83 L. J. K. B. N. S. 1520, [1914] W. N. 330, 58 Sol. Jo. 705.

12 Miles v. Dawe [1915] W. C. & Ins. Rep. (Eng.) 29, 8 B. W. C. C. 225 (case arose under § 13).

13 Ringwood v. Kerr Bros. (1914; Alberta) 7 B. W. C. C. 1056. With reference to § 6, paragraph 3, of the Alberta act, the court said: "Under this section, the principal, the railroad company in this case, would be liable for an injury to an employee of the contractor, when the contract is made 'in the course of or for the purposes of its trade or business, for the execution by or under the contractor, of the whole or any part of any work undertaken by the principal, which is in the way of the principal's trade or business." The court further said: "Now it seems quite clear that the placing of gravel at a highway crossing is not work in the way of a railway company's business, which is the operation of trains, and is not undertaken by the company within the meaning of the section." This decision seems to lay down a very strict construction of the statute. If the business of a railway company is merely the operation of trains, then any repair work done upon the track would not come within the purview of the statute. It certainly seems very difficult to distinguish between the work of placing gravel at a crossing and the ordinary track repairing which all railway companies have to perform.

to bring the workman within the pro- | be held to have undertaken to execute tection of the act, although the employ- the work on every street radiating from ment was of a casual nature under the place where the work was being 13.14 So, casual employment to lop off done over which the subcontractor might trees on a farm being carried on for be minded to take his cart in drawing profit is for the purpose of the farmer's away the refuse from the street where trade or business.15 the paving was being done.18

d. Work "undertaken by the principal."

Under 4, it is not sufficient to say that the work done was for the purpose of the business; it must also be a part of the work undertaken by the principal.16 A few cases have turned on the meaning of this phrase.17

f. Work ancillary or incidental" to the trade or business of the principal.

The most notable change in § 4, as it appears in the act of 1906, is the omission of the second paragraph of the original act, which provided that the act was not applicable to any work

e. "Premises on which the principal "which is merely ancillary or incidental

has undertaken to execute the work."

Under § 4, subsec. 4, a principal contracting to do certain work in connection with the paving of a street cannot

14 The dependents of a laborer engaged to repair a roof of a house in which drapery, grocery, and hardware business is carried on, and who was killed while so employed, are entitled to compensation, since he was employed for the purpose of the trade. Johnston v. Monasterevan General Store Co. [1909] 2 I. R. 108, 42 Ir. Law Times, 268, 2 B. W. C. C. 183.

The work of putting tiles on the roof of a farmer's granary is for the purpose of the farmer's business. Blyth v. Sewell (1909; C. C.) 126 L. T. Jo. (Eng.) 552, 2 B. W. C. C. 476.

15 Cotter v. Johnson (1911) 45 Ir. Law Times, 259, 5 B. W. C. C. 568.

16 Hockley v. West London Timber & Joinery Co. [1914] 3 K. B. (Eng.) 1013, 83 L. J. K. B. N. S. 1520, [1914] W. N. 330, 58 Sol. Jo. 705.

17 Where a farmer arranged with the applicant, a young lad, for the services of a threshing machine belonging to the latter's father, who was to be paid 20 s. out of 25 s., and in the course of the work the applicant was injured, he is not entitled to compensation, there being no "work undertaken by the principal." Walsh v. Hayes (1909) 43 Ir. Law Times, 114.

Where the respondents, who were green grocers, entered into a joint venture with a billiards saloon keeper for the erection of a skating rink as a speculation, and employed a contractor to do the part of the work, and the servant of the contractor was injured, it cannot be said that the work on which the applicant was employed was work "undertaken" by the respondents as principals within the meaning of § 4 of the act. Skates v. Jones [1910] 2 K. B. (Eng.) 903. 79 L. J. K. B. N. S. 1168, 103 L. T. N. S. 408, 26 Times L. R. 643, 3 B. W. C. C. 460.

The periodical overhauling and cleaning of a barge may be found not to be part of the business carried on and undertaken by

[ocr errors]

to" the trade or business carried on by the undertaker. The decisions as to the scope of the phrase quoted are not consistent.1

19

[blocks in formation]

The work of unloading sulphur from a barge, which was consigned to a firm of drug grinders, is not work undertaken by the drug grinders, where they declined to do this work themselves, as they had previously attempted it, and found that their own men were not suitable for such work. Bobbey v. Crosbie (1915) 84 L. J. K. B. N. S. (Eng.) 856, 112 L. T. N. S. 900, 8 B. W. C. C. 236.

A municipal corporation which purchased land for the extension of its market, and sold an old mill on the premises, to be torn down and carried away, is liable as undertaker to a workman employed by the purchaser of the mill, who was injured in the work of demolition. Mulrooney v. Todd [1909] 1 K. B. (Eng.) 165, 78 L. J. K. B. N. S. 145, 100 L. T. N. S. 99, 73 J. P. 73, 25 Times L. R. 103, 53 Sol. Jo. 99 [1908] W. N. 242.

A company who purchased a lighter in England, and engaged a man to navigate it to Cape Verd for them and to provide and pay for the crew, is liable for injuries to one of the latter during the voyage. Dittmar v. The V. 593 [1909] 1 K. B. (Eng.) 389, 78 L. J. K. B. N. S. 523, 100 L. T. N. S. 212, 25 Times L. R. 188.

18 Andrews v. Andrews [1908] 2 K. B. (Eng.) 567, 77 L. J. K. B. N. S. 974, 99 L. T. N. S. 214, 24 Times L. R. 709, 1 B. W. C. C. 264.

19 The following operations have been held to be "merely ancillary" to the business of the defendant:

The erection of a station building for a railway company by a contractor. Pearce v. London & S. W. R. Co. [1900] 2 Q. B. (Eng.) 100, 69 L. J. Q. B. N. S. 683, 48 Week. Rep. 599, 82 L. T. N. S. 473, 16 Times L. R.

336.

The work of putting a new driving wheel

« السابقةمتابعة »