workman was in his employment shall not be liable to pay compensation; and (ii) If that employer alleges that the disease was in fact contracted whilst the workman was in the employment of some other employer, and not whilst in his employment, he may join such other employer as a party to the arbitration; and if the allegation is proved, that other employer shall be the employer from whom the compensation is to be recoverable; and (iii) If the disease is of such a nature as to be contracted by a gradual process, any other employers who during the said twelve months employed the workman in the employment to the nature of which the disease was due shall be liable to make to the employer from whom compensation is recoverable such contributions as, in default of agreement, may be determined in the arbitration under this act for settling the amount of the compensation; (d) The amount of the compensation shall be calculated with reference to the earnings of the workman under the employer from whom the compensation is recoverable; (e) The employer to whom notice of the death, disablement, or suspension is to be given shall be the employer who last employed the workman during the said twelve months in the employment to the nature of which the disease was due, and the notice may be given notwithstanding that the workman has voluntarily left his employment. (f) If an employer or a workman is aggrieved by the action of a certifying or other surgeon in giving or refusing to give a certificate of disablement, or in suspending or refusing to suspend a workman for the purposes of this section, the matter shall, in accordance with regulations made by the Secretary of State, be referred to a medical referee, whose decision shall be final. (2) If the workman at or immediately before the date of the disablement or suspension was employed in any process mentioned in the second column of the third schedule to this act, and the disease contracted is the disease in the first column of that schedule set opposite the description of the process, the disease, except where the certifying surgeon certifies that in his opinion the disease was not due to the nature of the employment, shall be deemed to have been due to the nature of that employment, unless the employer proves the contrary. (3) The Secretary of State may make rules regulating the duties and fees of certifying and other surgeons (including dentists) under this section. (4) For the purpose of this section the date of disablement shall be such date as the certifying surgeon certifies as the date on which the disablement commenced, or, if he is unable to certify such a date, the date on which the certificate is given: Provided that— (a) Where the medical referee allows an appeal against a refusal by a certifying surgeon to give a certificate of disablement, the date of disablement shall be such date as the medical referee may determine: (b) Where a workman dies without having obtained a certificate of disablement, or is at the time of death not in receipt of a weekly payment on account of disablement, it shall be the date of death. (5) In such cases, and subject to such conditions as the Secretary of State may direct, a medical practitioner appointed by the Secretary of State for the purpose shall have the powers and duties of a certifying surgeon under this section, and this section shall be construed accordingly. (6) The Secretary of State may make orders for extending the provisions of this section to other diseases and other processes, and to injuries due to the nature of any employment specified in the order, not being injuries by accident, either without modification or subject to such modifications as may be contained in the order. (7) Where, after inquiry held on the application of any employers or workmen engaged in any industry to which this section applies, it appears that a mutual trade insurance company or society for insuring against the risks under this section has been established for the industry, and that a majority of the employers engaged in that industry are insured against such risks in the company or society, and that the company or society consents, the Secretary of State may, by provisional order, require all employers in that industry to insure in the company or society upon such terms and under such conditions and subject to such exceptions as may be set forth in the order. Where such a company or society has been established, but is confined to employers in any particular locality or of any particular class, the Secretary of State may for the purposes of this provision treat the industry, as carried on by employers in that locality or of that class, as a separate industry. (8) A provisional order made under this section shall be of no force whatever unless and until it is confirmed by Parliament, and if, while the bill confirming any such order is pending in either House of Parliament, a petition is presented against the order, the bill may be referred to a select committee, and the petitioner shall be allowed to appear and oppose as in the case of private bills, and any act confirming any provisional order under this section may be repealed, altered, or amended by a provisional order made and confirmed in like manner. (9) Any expenses incurred by the Secretary of State in respect of any such order, provisional order, or confirming bill shall be defrayed out of moneys provided by Parliament. (10) Nothing in this section shall affect the rights of a workman to recover compensation in respect of a disease to which this section does not apply, if the disease is a personal injury by accident within the meaning of this act. [This section is new, and enlarges materially the scope of the act.] 2. Text of third schedule. Mercury poisoning or its sequelaAny process involving the use of mercury or its preparations or compounds. Phosphorus poisoning or its sequelæ Any process involving the use of phosphorus or its preparations or compounds. Arsenic poisoning or its sequelæ-Any process involving the use of arsenic or its preparations or compounds. Ankylostomiasis—Mining. Where regulations or special rules made under any act of Parliament for the protection of persons employed in any industry against the risk of contracting lead poisoning require some or all of the persons employed in certain processes specified in the regulations or special rules to be periodically examined by a certifying or other surgeon, then, in the application of this schedule to that industry, the expression "process" shall, unless the Secretary of State otherwise directs, include only the processes so specified. b. In general. Apart from 8, the act has no operation except where there is an accident,5 The third schedule, mentioned in § 8 and this section does not have a retroof the act, is given below. DESCRIPTION OF DISEASE AND PROCESS. Anthrax-Handling of wool, hair, bristles, hides, and skins. Lead poisoning or its sequela-Any process involving the use of lead or its preparations or compounds. 59 If there has been no accident, the workman's right to compensation, if any, must be based on § 8 of the act. Chuter v. Ford [1915] 2 K. B. (Eng.) 113, 84 L. J. K. B. N. S. 703, [1915] W. C. & Ins. Rep. 104, [1915] W. N. 53, 31 Times L. R. 187, 8 B. W. C. C. 160. 60 In Greenhill v. The Daily Record (1909, Ct. of Sess.) 46 Scot. L. R. 483, the court refused to entertain a claim made by the widow of a workman who had left his em ployment before the date when the act came into force, and had died after it took effect, from an "industrial disease" to which it was applicable. 61 Curtis v. Black [1909] 2 K. B. (Eng.) 529, 78 L. J. K. B. N. S. 1022, 100 L. T. N. S. 977, 25 Times L. R. 621, 53 Sol. Jo. 576. Cozens-Hardy, M. R., observed that a workman who had contracted an industrial disease, lead poisoning in this case, in order to make a claim, must procure a certificate from the certifying surgeon appointed under the factory and workshop act "for the district in which he is em ployed;" there can be no such surgeon where the disease was contracted at sea. 62 It is not enough for the applicant to active effect,60 and cannot apply to seamen contracting industrial diseases while at sea.61 There can be no recovery under $ 8 unless it is established that the employment caused the disease,62 and that the disease caused the workman's death or prove that the deceased employee had been employed in a lead process within twelve months, and that he died of lead poisoning; it must be shown that the disease was caused by the employment. Dean v. Rubian Art Pottery Co. [1914] 2 K. B. (Eng.) 213, 83 L. J. K. B. N. S. 799, 110 L. T. N. S. 594, 30 Times L. R. 283, 58 Sol. Jo. 302, [1914] W. N. 45, [1914] W. C. & Ins. Rep. 147, 7 B. W. C. C. 209. Compensation cannot be allowed where there is no evidence that the workman's tendency to an industrial disease was due to a previous attack of the disease while in the employment of the master, as opposed to a physical susceptibility to the disease. Jones v. New Brynmally Colliery Co. [1912] W. C. Rep. (Eng.) 281, 5 B. W. C. C. 375, 106 L. T. N. S. 524. Where a medical referee has certified that a miner was suffering from nystagmus, but that it was not due to mining, the sheriff substitute must allow the matter to go on so that the workman may show if he can that the disease of nystagmus, from which he is certified to be suffering, really arose from his employment, and did not arise from other causes. M'Ginn v. Udston Coal Co. [1912] S. C. 668, 49 disability; 63 and the workman has the burden of proof of showing that the liability to a recurrence of the disease is due to the accident, and not to a constitutional predisposition to the particular disease.64 The certificate of a certifying surgeon that a workman is suffering from an industrial disease does not require to be obtained before the initiation of proceedings, but may be obtained and produced in the course of the proceedings; 65 and the date at which the certifying surgeon finds the workman to have been disabled may be subsequent to the time of the termination of the workman's employment with the employers.66 In the absence of a contract of employment there can be no liability for contribution under 8; 67 but a workman is not necessarily barred from compensation because he falsely stated in his application for employment that he had not used white lead when employed by other persons, where it appeared that the employer was not prejudiced thereby in securing contribution from the other employers.68 on the ground that eight months after he left the employment he was disabled by nystagmus.69 So, where a workman had worked for a few days in an employment involving the use of lead, and after leaving the employment caught cold and died of pneumonia about a month after he had left the employment, the employment was not "at or immediately before," the death, within the meaning of § 8 subsec. 2.70 d. Presumption as to cause of disease. The presumption referred to in § 8, subsec. 2, is that the disablement was due to the nature of the scheduled employment irrespective of the date or place at which the disease was contracted.71 A workman engaged as a surface laborer at a colliery is not entitled to a statutory presumption that the disease of nystagmus, from which he is suffering, was due to the nature of the employment.72 e. Contribution by other employers. Compensation for an industrial disease is recoverable in the first instance from c. Meaning of phrase "at or immedi- the employer who had last employed the ately before." The phrase "immediately before" as used in 8, subsec. 2, refers to a sequence of time, not to a sequence of employment. Consequently, a miner who leaves the employment of the mine owner for a reason not connected with the disease cannot procure compensation upScot. L. R. 531, [1912] W. C. Rep. 134, 5 B. W. C. C. 559. 63 Haylett v. Vigor [1908] 2 K. B. (Eng.) 837, 77 L. J. K. B. N. S. 1132, 24 Times L. R. 885, 72 Sol. Jo. 741, 99 L. T. N. S. 74. 64 Darroll v. Glasgow Iron & Steel Co. [1913] S. C. 387, 50 Scot. L. R. 226, [1913] W. C. & Ins. Rep. 80, 6 B. W. C. C. 354. 65 Taylor v. Burnham [1909] S. C. 704, 46 Scot. L. R. 482. 66 Russell v. Keary (1915) 52 Scot. L. R. 447, 8 B. W. C. C. 410. 67 Pears v. Gibbons [1913] W. C. & Ins. Rep. (Eng.) 469, 6 B. W. C. C. 722. 68 Taylor v. Burnham [1910] S. C. 705, 47 Scot. L. R. 643, 3 B. W. C. C. 569. 69 M'Taggart v. Barr (1914) 52 Scot. L. R. 125, 8 B. W. C. C. 376. 70 An employment which terminated on April 19th cannot be said to have been employment "at or immediately before" May 15th. Dean v. Rubian Art Pottery Co. [1914] 2 K. B. (Eng.) 213, 83 L. J. K. B. N. S. 799, 110 L. T. N. S. 594, 30 Times L. R. 283, 58 Sol. Jo. 302, [1914] W. N. 45, [1914] W. C. & Ins. Rep. 147, 7 B. W. C. C. 209. workman during the period, however short that period of employment may have been.7 73 In seeking contribution from prior employers, there is no obligation on the part of the employers to prove that the disease was contracted while the claimant was in the service of the previous employers.74 Under 8, subsec. 1 (c) (iii), the ar 71 Glancy v. Watson (1915) 52 Scot. L. R. 279, [1915] W. C. & Ins. Rep. 40, 8 B. W. C. C. 391. 72 Scullion v. Cadzow Coal Co. [1914] S. C. 36, [1913] 2 Scot. L. T. 271, 51 Scot. L. R. 39, [1914] W. C. & Ins. Rep. 129, 7 B. W. C. C. 833. The basis of this decision was that the expression "the process of mining" was not equivalent to the expression "employment on, in, or about a mine," and that if the legislature had intended that the statutory presumption should apply in the case of a surface worker, the latter phrase would have been used in the statute. 78 Merry v. M'Gowan (1914) 52 Scot. L. R. 30, 8 B. W. C. C. 344. In this case, the miner had been in the last employment but two days. 74 Where, upon an application for compensation by an employee who was suffering from mercurial poisoning, the employers disputed their liability on the ground that the disease was not contracted in their service, and served third-party notices on other employers, claiming contribution from them in respect of compensation on the ground that the disease was of such a 76 respondent, there being no suspensory agreement, and no suspensory award.77 1. Functions of certifying surgeons and 79 medical referees. bitrator must determine what, under all the facts of the case, is a fair and proper contribution for the former employers to make to the compensation which the last employer had to pay, and he is not to limit himself to merely calculating The sole function of the certifying the number of days during which the surgeon, and of the medical referee on man was in the respective employ- appeal, is to determine whether the workments,75 unless there is no special cir- man is suffering from a scheduled discumstance to show that the disease had ease, and is thereby disabled from earnin reality been greatly accelerated by the ing full wages in his employment, and, conduct of some particular employer.7 subject to the provisions of § 8, subsec. A builder's laborer who had contracted 4, to fix the date on which disablement eczematous ulceration from contact with commenced.78 A certificate by the medicement and lime while in the employ- cal referee allowing an appeal by the ment of the respondent, and who was workman from the refusal of the certivoluntarily paid compensation for the fying surgeon to give the workman a time he was disabled, cannot, over a year certificate of disablement in respect of thereafter, when he is in the employment a disease falling within the statute, and of other employers and the disease re-fixing the date of the disablement, is appears, recover compensation from the conclusive.7 But the county court nature as to be contracted by gradual process, and that the workman had been employed by the other employers within twelve months of his disablement, the defendant employers need not allege that the disease had been actually contracted at any particular date, or prove that it was contracted while the claimant was in the service of the previous employers. Mallinder v. Moores [1912] 2 K. B. (Eng.) 124, 81 L. J. K. B. N. S. 714, 106 L. T. N. S. 487, [1912] W. C. Rep. 257, [1912] W. N. 97, 5 B. W. C. C. 362. The ground of this decision was that the county court judge had misdirected himself in that he considered the case to fall within § 8 (1) (c) (ii), which applies where the employer claims that the disease was wholly contracted in another employment. The disease, mercurial poisoning, was within the provisions of § 8 (1) (c) (iii), and the employment with the third person had been within the twelve months. 75 In Barron v. Seaton Burn Coal Co. [1915] 1 K. B. (Eng.) 756, 112 L. T. N. S. 897, 31 Times L. R. 199, 84 L. J. K. B. N. S. 682, [1915] W. C. & Ins. Rep. 132, [1915] W. N. 70, 59 Sol. Jo. 315, 8 B. W. C. C. 218, the court of appeal allowed an appeal from an award of the county court judge in the case of a miner who was suffering from nystagmus, and who, during the twelve months preceding the award, had worked for five different employers engaged in mining. The county court judge ordered each of the five employers to contribute in proportion to the period during which the man was employed with them. One of the employers claimed that the working arrangements at his colliery were so good and so far superior to those of the other collieries that it was not right that the other employers should bear simply a ratable proportion of the total sum, having regard only to the number of days or weeks in which the man was employed at their colliery. The county court judge, however, was of the opinion that the provision in question was intended to obviate the necessity of making such inquiries in the case of a disease acquired gradually. The court of appeal, however, took the contrary view. 76 Lees v. Waring (1909 C. C.) 127 L. T. Jo. (Eng.) 498, 2 B. W. C. C. 474. 77 Timpson v. Mowlem (1915) 112 L. T. N. S. (Eng.) 885, 8 B. W. C. C. 178. The court pointed out that the workman should have proceeded against his last employers, and that they had power to call in the respondent and make out, if they could, that the industrial disease was really contracted when the workman was in the respondent's employ, and not while in the employment of the last employers. 78 The sheriff as arbitrator should refuse to accept the report of a medical referee to whom the matter was referred under § 8 (1) (f), where the latter, subject to a note appended, dismissed the appeal. Winters v. Addie & Sons' Collieries [1911] S. C. 1174, 48 Scot. L. R. 940. A medical referee to whom a case is referred under § 8 (1) (f) of the act has no power to dismiss an appeal by the employers from an award, with the restriction that the applicant "is now able to resume his ordinary work." Garrett V. Waddell [1911] S. Č. 1168, 48 Scot. L. R. 937. Where a certifying surgeon had given a certificate that a workman was suffering from an industrial disease, but in the certificate fixed the commencement of the disablement at the time of the examination, which, under the circumstances of the case, prevented the workman from taking proceedings for compensation under the act, the workman is aggrieved under § 8, subsec. 1 (iii) (f), and has a right of appeal to the medical referee. Birks v. Stafford Coal & I. Co. [1913] 3 K. B. (Eng.) 686, 109 L. T. N. S. 290, 82 L. J. K. B. N. S. 1334, [1913] W. N. 238, 57 Sol. Jo. 729, 6 B. W. C. C. 617. 79 Chuter v. Ford [1915] 2 K. B. (Eng.) 113, 84 L. J. K. B. N. S. 703, [1915] W. C. judge is entitled to ignore a certificate | erees under this act shall, subject to regof a certifying surgeon to the effect that ulations made by the Treasury, be paid a bookbinder was suffering from lead out of moneys provided by Parliament. poisoning, but that there were none of the usual symptoms, and that the disease could only be inferred from the man's history of the case.80 A medical referee should not sit with the county court judge as assessor upon an issue upon which he had already given his opinion as medical referee.81 Where a medical referee has been employed as a medical practitioner in connection with any case by or on behalf of an employer or workman, or by any insurers interested, he shall not act as medical referee in that case. (2) The remuneration of an arbitrator appointed by a judge of county courts under the second schedule to this act XI. Application to workmen under the shall be paid out of moneys provided by Crown ($ 9). a. Text of $ 9. Section 9 (1) This act shall not apply to persons in the naval or military service of the Crown, but otherwise shall apply to workmen employed by or under the Crown to whom this act would apply if the employer were a private person: Provided, that in the case of a person employed in the private service of the Crown, the head of that department of the Royal Household in which he was employed at the time of the accident shall be deemed to be his employer. (2) The Treasury may, by warrant laid before Parliament, modify for the purposes of this act their warrant made under § 1 of the superannuation act 1887, and, notwithstanding anything in that act, or any such warrant, may frame schemes with a view to their being certified by the registrar of friendly societies under this act. [This section is the same as § 8 of the original act, except that the proviso in subsec. 1 is new.] XII. Appointment and remuneration of arbitrators and medical referees (§ 10). Parliament in accordance with regulations made by the Treasury [new.] XIII. Detention of ships whose owners are liable for compensation (§ 11). a. Text of § 11. Section 11 (1) If it is alleged that the owners of any ship are liable as such owners to pay compensation under this act, and at any time that ship is found in any port or river of England or Ireland, or within 3 miles of the coast thereof, a judge of any court of record in England or Ireland may, upon its being shown to him, by any person applying in accordance with the rules of the court, that the owners are probably liable as such to pay such compensation, and that none of the owners reside in the United Kingdom, issue an order directed to any officer of customs or other officer named by the judge, requiring him to detain the ship until such time as the owners, agent, master, or consignee thereof have paid such compensation, or have given security, to be approved by the judge, to abide the event of any proceedings they may be instituted to recover such compensation, and to pay such compensation and costs as may be awarded thereon; and any officer of customs or other officer to whom the order is directed shall detain the ship accordingly. a. Text of § 10. Section 10 (1) The Secretary of State may appoint such legally qualified medical practitioners to be medical referees (2) In any legal proceeding to recover for the purpose of this act as he may, such compensation, the person giving sewith the sanction of the Treasury, de-curity shall be made defendant, and the termine, and the remuneration of, and other expenses incurred by, medical ref 31 & Ins. Rep. 104, [1915] W. N. 53, Times L. R. 187, 8 B. W. C. C. 160. was further held that the certificate of the It medical referee was not irregular and invalid by reason of the omission of the statement that the workman was disabled by the disease from earning full wages at the work at which he was employed. 80 Mapp v. Straker [1914] W. C. & Ins. Rep. (Eng.) 98, 7 B. W. C. C. 18. 81 Wallis v. Soutter [1915] W. N. (Eng.) 68, 59 Sol. Jo. 285, [1915] W. C. & Ins. Rep. 113, 8 B. W. C. C. 130. production of the order of the judge, made in relation to the security, shall be conclusive evidence of the liability of the defendant to the proceeding. (3) Section 692 of the merchant shipping act 1894 shall apply to the detention of a ship under this act as it applies to the detention of a ship under that act and, if the owner of a ship is a corporation, it shall for the purposes of this section be deemed to reside in the United Kingdom if it has an office in the United Kingdom at which service of writs can be effected [new]. |