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therein ;90 but the mere payment of some tract to the contrary made after the comcompensation is not such a waiver as a mencement of this act. matter of law.91

(2) The registrar may give a certifi

cate, to expire at the end of a limited V. Substitution of scheme approved by period of not less than five years, and

friendly society for provisions of the may from time to time renew, with or act ($ 3).

without modifications, such a certificate, a. Text of $ 3.

to expire at the end of the period for

which it is renewed. Section 3. (1) If the registrar of (3) No scheme shall be so certified friendly societies, after taking steps to which contains an obligation upon the ascertain the views of the employer and workmen to join the scheme as a conworkmen, certifies that any scheme of dition of their hiring, or which does not compensation, benefit, or insurance for contain provisions enabling a workman the workmen of an employer in any em- to withdraw from the scheme. ployment, whether or not such scheme (4) If complaint is made to the regisincludes other employers and their work- trar of friendly societies, by or on behalf men, provides scales of compensation not of the workmen of any employer, that less favorable to the workmen and their the benefits conferred by any scheme no dependents than the corresponding scales longer conform to the conditions stated contained in this act, and that, where in subsection (1) of this section, or that the scheme provides for contributions the provisions of such scheme are being by the workmen, the scheme confers violated, or that the scheme is not being benefits at least equivalent to those con-, fairly administered, or that satisfactory tributions, in addition to the benefits to reasons exist for revoking the certificate, which the workmen would have been the registrar shall examine into the comentitled under this act, and that a ma- plaint, and, if satisfied that good cause jority (to be ascertained by ballot) of exists for such complaint, shall, unless the workmen to whom the scheme is ap- the cause of complaint is removed, replicable are in favor of such scheme, the voke the certificate. employer may, whilst the certificate is (5) When a certificate is revoked or in force, contract with any of his work- expires, any moneys or securities held men that the provisions of the scheme for the purpose of the scheme shall, after shall be substituted for the provisions due provision has been made to discharge of this act, and thereupon the employer the liabilities already accrued, be distrishall be liable only in accordance with buted as may be arranged between the the scheme; but, save as aforesaid, this employer and workmen, or as may be deact shall apply notwithstanding any con- termined by the registrar of friendly sufficient to enable the court to draw the, Times L. R. 368, distinguishing Wright v. inference that the workman had reasonable Bagnall [1900] 2 Q. B. (Eng.) 240, 82 L. T. cause, within the meaning of the statute, N. S. 346, 69 L. J. Q. B. N. S. 551, 64 J. P. for not making the claim within six months 420, 48 Week. Rep. 533, 16 Times L. R. from the date of the accident. The master 327, supra. of the rolls, in Luckie v. Merry, stated that' The fact that an employer for a period the Healy Case could not be authority upon of about six months voluntarily paid an this point because, in that case, there was injured workman a sum in excess of what no question of reasonable cause whatsoever. ' he would have had to pay under the act

90 Employers, by paying compensation for does not bar him from pleading the omisseven weeks, waived any defect in the no- sion to begin proceedings within the pretice of accident. Davies v. Point of Ayr scribed six months, where nothing at all Collieries (1909) 2 B. W. C. C. (Eng.) 157. had been said between the parties as to the

91 The mere fact that the employer has act. O'Neill v. Motherwell (1906-07] S. C. made weekly payments to a workman is (Scot.) 1076. not such evidence of an admission of lia. Employers are not estopped from claimbility and of an agreement to pay com- ing that the act is inapplicable by the fact pensation as will enable the workman to that shortly after the accident they wrote commence proceedings under the act after to the workman's daughter that if she the expiration of six months from the acci- would forward them a certificate of the dent, where the employer took a receipt doctor attending him, stating the nature of which stated that the money was received the injuries and the probable period of inon account of compensation which might jury, they would pay him whatever was due be or become due to the workman under him under the act during his illness, dating the act. Rendall v. Hill's Dry Docks & one week from the day of the accident, and Engineering Co. [1909] 2 Q. B. (Eng.) 245, that they did not so pay him for a period 69 L. J. Q. B. N. S. 554, 64 J. P. 451, 48 of about six months. Ross v. Smith (1909) Week. Rep. 530, 82 L. T. N. S. 521, 16 'So. Austr. L. R. 128.

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

has no jurisdiction of the matter. 96 And (6) Whenever a scheme has been cer- no appeal lies to the court from the detified as aforesaid, it shall be the duty cision of a committee appointed under a of the employer to answer all such in- scheme formed by the employer and acquiries and to furnish all such accounts cepted by the workman, where all the in regard to the scheme as may be made requirements of the act had been fulor required by the registrar of friendly filled, and the scheme provided that the societies.

committee had power to determine all (7) The chief registrar of friendly claims arising under the scheme.97 But societies shall include in his annual re- the county court judge is not ousted if port the particulars of the proceedings the scheme has not been properly certiof the registrar under this act.

fied.98 And a minor who has assented to (8) The chief registrar of friendly a duly certified contracting-out scheme societies may make regulations for the is not bound to accept payment of purpose of carrying this section into ef- amount given by such scheme if it is fect.

not beneficial to him.99 [The changes in ý 3 are for the most Where a scheme purports to be inpart mere matters of detail.]

tended as a substitute for the act, the

word "accident" in the scheme will be b. Construction of this section.

construed as having the same meaning The provision in the statute against as in the act, and to include disablement contracting out of the statute refers only from disease described in § 8 of the act. to contracts as to future injuries. 92 A

The employer is not entitled to deduct penal clause in an agreement whereby from the workman's wages a contribution a workman is to lose all rights to com- to a scheme of compensation where the pensation unless he insists in an appli- original scheme to which the workman cation for examination by a medical ref- had consented had expired by lapse of eree under certain circumstances is void time, and the new scheme certified by under ♡ 3, subsec. 1 of the act.93 A con- the registrar of friendly societies had tract, under $ 3, need not be in writing:94 not been agreed to by the workman.2

A workman who has agreed to accept As to the recertifying of schemes unthe provisions of a duly certified scheme der the act of 1897, so as to render them cannot resort to the act in any way. 95 valid under the act of 1906, see post 128.

92 Ryan v. Hartley (1912] 2 K. B. (Eng.) | the chief registrar of friendly societies is 150, 81 L. J. K. B. N. S. 666, 106 L. T. N. S. outside the provisions of the act altogether. 702, (1912) W. C. R. 236, [1912] W. N. 115, Horn v. Lords Comrs. of Admiralty (1911] 5 B. W. C. C. 407.

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.

84, 4 B. W. C. C. 1. 94 Berry v. Canteen_& Mess. Co-op. Soc. 97 Allen v. Great Eastern R. Co. [1914] (1910) 3 B. W. C. C. (Eng.) 449.

2 K. B. (Eng.) 243, 110 L. T. N. S. 498, 95 Godwin v. Lords Comrs. of Admiralty | [1914] W. N. 33, 83 L. J. K. B. N. S. 898, [1913] A. C. (Eng.) 638, 82 L. J. K. B. [1914] W. C. & Ins. Rep. 388. N. S. 1126, 109 L. T. N. S. 428, 29 Times 98 Where a duly certified scheme provided L. R. 774, [1913] W. N. 267, 6 B. W. C. c. that the funds were to be managed in ac788, affirming Court of Appeal [1912] 2 cordance with rules not inconsistent with K. B. 26, 81 L. J. K. B. N. S. 532, 106 L. T. the scheme, to be framed from time to time, N. S. 136, 28 Times L. R. 229, [1912] W. C. which rules had not been certified, and it Rep. 49, 5 B. W. C. C. 229, 56 Sol. Jo. 307, was found as a matter of fact that the rules [1912] W. N. 45.

were inconsistent with the scheme, the A workman who has come in under a scheme, as modified by the rules, cannot be scheme, duly certified under $ 3 of the act, said to be a properly certified scheme. Moss and has signed an agreement, is outside of v. Great Eastern R. Co. [1909] 2 K. B. the provisions of the act altogether, and (Eng.) 274, 78 L. J. K. B. N. S. 1048, 100 cannot subsequently obtain compensation L. T. N. S. 747, 25 Times L. R. 466, 2 B. W. from the employer, although the scheme C. C. 168. was terminated in consequence of its not 99 Morter v. Great Eastern R. Co. (1908; being recertified under the act. Howarth ; C. C.) 126 L. T. Jo. (Eng.) 171, 2 B. W. C. C. v. Knowles [1913] 3 K. B. (Eng.) 675, 82 480. L. J. K. B. N. S. 1325, 109 L. T. N. S. 278, 1 Leaf v. Furze (Div. Ct.) [[1914] 3 K. 29 Times L. R. 667, 57 Sol. Jo. 471, [1913] B. (Eng.) 1068, 83 L. J. K. B. N. S. 1822. W. N. 237, 6 B. W. C. C. 596.

2 Wilson v. Ocean Coal Co. (1905) 21 96 A workman who has signed an agree Times L. R. (Eng.) 621, affirming 21 ment to accept compensation certified by Times L. R. 195.

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VI. Liability to servants of contractors, under such contractor of any work, and ($ 4).

the undertakers would, if such work a. Text of $ 4.

were executed by workmen immediately

employed by them, be liable to pay comSection 4. (1) Where any person (in pensation under this act to those workthis section referred to as the principal), men in respect of any accident arising in the course of or for the purposes of out of, and in the course of, their emhis trade or business, contracts with any ployment, the undertakers shall be liable other person in this section referred to to pay to any workmen employed in the as the contractor) for the execution, by execution of the work any compensation or under the contractor, of the whole or which is payable to the workmen (whethany part of any work undertaken by the er under this act, or in respect of perprincipal, the principal shall be liable sonal negligence or wilful act independto pay to any workman employed in the ently of this act) by such contractor, or execution of the work any compensation would be so payable if such contractor under this act which he would have been were an employer to whom this act apliable to pay if that workman had been plies: Provided, that the undertakers immediately employed by him; and shall be entitled to be indemnified by where compensation is claimed from or any other person who would have been proceedings are taken against the prin- liable independently of this section. cipal, then, in the application of this act, This section shall not apply to any references to the principal shall be sub-contract with any person for the exestituted for references to the employer, cution by or under such contractor of except that the amount of compensation any work which is merely ancillary or shall be calculated with reference to the incidental to, and is no part of, or proearnings of the workman under the em

cess in, the trade or business carried on ployer by whom he is immediately em- by such undertakers respectively.] ployed: Provided that, where the contract relates to threshing, plowing, or

b. In general. other agricultural work, and the con

The meaning of the word "undertractor provides and uses machinery by takers," as used in this section, is dismechanical power for the purpose of cussed in connection with the cases dissuch work, he and he alone shall be liable cussing the meaning of the word as used under this act to pay compensation to in the factory act. See post, 209. any workman employed by him on such

It is stated in respect to ý 4 of the work.

earlier act, and the statement applies (2) Where the principal is liable to equally well to this section of the prespay compensation under this section, he ent act, that it “contemplates the case shall be entitled to be indemnified by of persons who, being undertakers in reany person who would have been liable spect to a particular class of business, to pay compensation to the workman in- substitute for themselves a contractor dependently of this section, and all ques- to do some part of that business, and tions as to the right to and amount of provides that the workmen of such a conany such indemnity shall in default of

tractor shall have the same rights agreement, be settled by arbitration un

against such persons as they would have der this act.

if they were employed by them." 3 The (3) Nothing in this section shall be principal will not be held liable for comconstrued as preventing a workman re

pensation to a man who has no claim covering compensation under this act

against the contractor.4 from the contractor instead of the prin

The act does not impose joint liability, cipal. (4) This section shall not apply in from both the principal and the con

so that an application for compensation any case where the accident occurred

tractor will be dismissed; and where elsewhere than on or in or about premises on which the principal has under 3 Collins, L. J. in Wrigley V. Bagley taken to execute the work, or which are [1901] 1 K. B. (Eng.) 780. otherwise under his control or manage

4 Marks v. Carne (1909] 2 K. B. (Eng.) ment.

516, 78 L. J. K. B. N. S. 853, 100 L. T. N. [Section 4 of the original act provided S. 950, 25 Times L. R. 620, 53 Sol. Jo. 561,

2 B. W. C. C. 186 (the workman was the as follows: Section 4. Where, in an employment house with him).

son of the contractor, dwelling in the same to which this act applies, the under

5 The widow and children of a workman takers, as hereinafter defined, contract who was killed while working in the emwith any person for the execution by or ployment 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 manuA subcontractor is liable to indemnify facturers never stacked the wood themthe principal contractor under the pro- selves, but always had it stacked by visions of 4 of the act, where the latter contract.11 So, a painter employed casuhas been obliged to pay compensation to ally as an agent to do work on the one of the subcontractor's employees.? premises of his principal, who was a c. "In the course of or for the purposes business, is not within the statute, since

gentleman living in the country, without of" the principal's trade or busi

the employer does not carry on a “trade ness."

or business.” 12 The work of cleaning the boilers of The work of putting gravel on apone of their ships lying in a harbor, proaches to a level crossing, which has which work is left to independent con- been ordered by the Board of Railroad tractors, is not undertaken by the ship- Commissioners, is work for the purpose owners “in the course of or for the of the trade or business of the railway purposes of” their trade or business; 8 company, but is not “in the way of their nor is the tarring on the outside of a tank trade or business.” 13 But the repairing used by chemical manufacturers in the of the roof of buildings used as a store course of or for the purpose of the trade and as a granary has been held to be or business of the manufacturers; nor for the purposes of the trade of the 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 , does not relate to work undertaken by the manufacturers, cannot claim compensation i surveyor in the course of and for the purfrom both, and an application for compen- poses of his business. Brine v. May (1913] sation from both will be dismissed. Herd W. C. & Ins. Rep. (Eng.) 148, 6 B. W. C. C. v. Summers (1905) 7 Sc. Sess. Cas. 5th

134. series (Scot.) 870.

11 Hockley v. West London_Timber & 6 Meier v. Dublin [1912] 2 I. R. 129, Joinery Co. [1914] 3 K. B. (Eng.) 1013, [1913] W. C. & Ins. Rep. 30, 46 Ir. Law 83 L. J. K. B. N. S. 1520, [1914] W. N. 330, Times, 233, 6 B. W. C. C. 441.

58 Sol. Jo. 705. 7 Cooper v. Wright (1902] A. C. (Eng.) 12 Miles v. Dawe (1915) W. C. & Ins. Rep. 302, 71 L. J. K. B. N. S. 642, 86 L. T. N. S. (Eng.) 29, 8 B. W. C. C. 225 (case arose 776, 18 Times L. R. 622, 4 W. C. C. 75, 51 under § 13). Week. Rep. 12; Wagstaff v. Perks (1902) 13 Ringwood v. Kerr Bros. (1914; Alberta) 51 Week. Rep. (Eng.) 210, 87 L. T. N. S. | 7 B. W. C. C. 1056. With reference to § 6, 558, 5 W. C. C. 110, 19 Times L. R. 112. paragraph 3, of the Alberta act, the court

8 Spiers v. Elderslie S. S. Co. (1909] S. said: "Under this section, the principal, C. 1259, 46 Scot. L. R. 893 (not one of the the railroad company in this case, would normal operations which form the ordinary be liable for an injury to an employee of business of a ship owner); Luckwell v. the contractor, when the contract is made Auchen Steam Shipping Co. [1913] W. C. 'in the course of or for the purposes of its & Ins. Rep. (Eng.) 167, 108 L. T. N. S. 52, trade or business, for the execution by or 12 Asp. Mar. L. Cas. 286, 6 B. W. C. C. under the contractor, of the whole or any 51.

I part of any work undertaken by the princi9 A firm of chemical manufacturers is not pal, which is in the way of the principal's liable to pay compensation to a workman of trade or business.” The court further said: a person who had contracted to tar the i "Now it seems quite clear that the placing outside of tanks used by them in their busi- of gravel at a highway crossing is not work

Zugg v. Cunningham [1908] S. C. in the way of a railway company's business, (Scot.) 827. Lord M'Laren observed: “In which is the operation of trains, and is the present circumstances I am unable to not undertaken by the company within the see that the work of tarring the building meaning of the section.” This decision in question was work undertaken by the seems to lay down a very strict construeappellants, whose business is not the erec- tion of the statute. If the business of a tion or repair of structures, but the manu- railway company is merely the operation of facture of chemicals."

trains, then any repair work done upon the 10 Where a surveyor and real estate track would not come within the purvier agent, who had been instructed

of the statute. It certainl: seems very diffidwelling house by its owner, decided to cult to distinguish between the work of take the house himself, and contracted to placing gravel at a crossing and the ordihave the house repaired, as he was au- nary track repairing which all railway comthorized to do by the owner, the contract 'panies have to perform.


let a

to bring the workman within the pro- l 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 prin

f. Work "ancillary or incidentalto cipal."

the trade or business of the princi. Under ø 4, it is not sufficient to say pal. that the work done was for the purpose of the business; it must also be a part

The most notable change in ý 4, as it of the work undertaken by the prin- appears in the act of 1906, is the omiscipal.16 A few cases have turned on the sion of the second paragraph of the meaning of this phrase.17

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."

to" the trade or business carried on by Under $ 4, subsec. 4, a principal con- the undertaker. The decisions as to the tracting to do certain work in connec- scope of the phrase quoted are not contion with the paving of a street cannot i sistent.19

14 The dependents of a laborer engaged | the barge owner. Hayes v. Thompson to repair a roof of a house in which drap. [1913] W. C. & Ins. Rep. (Eng.) 161, 6 B. ery, grocery, and hardware business is car- W. C. C. 130. ried on, and who was killed while so em- The work of unloading sulphur from a ployed, are entitled to compensation, since barge, which was consigned to a firm of he was employed for the purpose of the drug grinders, is not work undertaken by trade. Johnston v. Monasterevan General the drug grinders, where they declined to Store Co. [1909] 2 I. R. 108, 42 Ir. Law do this work themselves, as they had preTimes, 268, 2 B. W. C. C. 183.

viously attempted it, and found that their The work of putting tiles on the roof of own men were not suitable for such work. a farmer's granary is for the purpose of Bobbey v. Crosbie (1915) 84 L. J. K. B. N. the farmer's business. Blyth v. Sewell S. (Eng.) 856, 112 L. T. N. S. 900, 8 B. W. (1909; C. C.) 126 L. T. Jo. (Eng.) 552, 2 B. 4 C. C. 236. W. C. C. 476.

A municipal corporation which purchased 15 Cotter v. Johnson (1911) 45 Ir. Law land for the extension of its market, and Times, 259, 5 B. W. C. C. 568.

sold an old mill on the premises, to be torn 16 Hockley v. West London Timber & down and carried away, is liable as underJoinery Co. [1914] 3 K. B. (Eng.) 1013, 83 taker to a workman employed by the purL. J. K. B. N. S. 1520, [1914) W. X. 330, chaser of the mill, who was injured in the 58 Sol. Jo. 705.

work of demolition. Mulrooney v. Todd 17 Where a farmer arranged with the ap. [1909] 1 K. B. (Eng.) 165, 78 1. J. K. B. plicant, a young lad, for the services of a N. S. 145, 100 L. T. N. S. 99, 73 J. P. 73, 25 threshing machine belonging to the latter's Times L. R. 103, 53 Sol. Jo. 99 [1908] W. father, who was to be paid 20 s. out of 25 s., N. 242. and in the course of the work the applicant A company who purchased a lighter in was injured, he is not entitled to compensa- England, and engaged a man to navigate tion, there being no “work undertaken by it to Cape Verd for them and to provide the principal.” Walsh v. Hayes (1909) 43 and pay for the crew, is liable for injuries Ir. Law Times, 114.

to one of the latter during the voyage. Where the respondents, who were green Dittmar v. The V. 593 [1909] 1 K. B. (Eng.) grocers, entered into a joint venture with 389, 78 L. J. K. B. N. S. 523, 100 L. T. N. S. a billiards saloon keeper for the erection 212, 25 Times L. R. 188. of a skating rink as a speculation, and em- 18 Andrews v. Andrews (1908] 2 K. B. ployed a contractor to do the part of the (Eng.) 567, 77 L. J. K. B. N. S. 974, 99 L. work, and the servant of the contractor | T. N. S. 214, 24 Times L. R. 709, 1 B. W. C. was injured, it cannot be said that the work C. 264. on which the applicant was employed was 19 The following operations have been work "undertaken” by the respondents as held to be “merely ancillary” to the busiprincipals within the meaning of 4 of the ness of the defendant: act. Skates v. Jones (1910) 2 K. B. (Eng.) The erection of a station building for a 903, 79 L. J. K. B. N. S. 1168, 103 L. T. railway company by a contractor. Pearce v. X. S. 408, 26 Times L. R. 643, 3 B. W. C. C. London & S. W. R. Co. [1900] 2 Q. B. (Eng.) 460.

100, 69 L. J. Q. B. N. S. 683, 48 Week. Rep. The periodical overhauling and cleaning 599, 82 L. T. N. S. 473, 16 Times L. R. of a barge may be found not to be part of 336. the business carried on and undertaken by The work of putting a new driving wheel

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