regularly employed in one grade, and is temporarily transferred to another grade in an emergency, the wages of the latter grade do not determine his compensation.5

The construction and meaning of the word "grade" as used in schedule 1 (2) is a question of law.6

3. Concurrent employments. The provision in 2 (b), as to concurrent contracts, applies only to cases where it is necessary to compute the average weekly earnings of the workman; consequently earnings under a concurrent contract are to be disregarded where compensation is sought by the dependents of a workman who had worked continuously for over three years for the same employer.7

This provision does not apply where, to a machine where a finer grade of hemp was handled, and her wages were increased, such a change is a change in the grade of her employment; and although she had worked in that grade but five weeks at the time of her injury, her compensation is to be fixed with reference to the wages she was earning at the time of her injury, and not with reference to the average amount she had earned during the year. Dalgleish v. Edinburgh Roperie & Sailcloth Co. [1913] S. C. 1007, 50 Scot. L. R. 916, 6 B. W. C. C. 867.

5 Where a sailor had for some time been employed in different capacities and at various rates of wages by the employer, and at the time of his accident had been engaged three days temporarily as mate in the place of his son, who had been injured, it is error for the county court judge to hold that the man's grade at the time of his death was that of mate, and that the determination of the grade was a question of law which was appealable. Jury v. The Atlanta [1912] 3 K. B. (Eng.) 366, 81 L. J. K. B. N. S. 1182, 107 L. T. N. S. 366, 28 Times L. R. 562, 56 Sol. Jo. 703, [1912] W. N. 218, 5 B. W. C. C. 681.

Where a workman who was employed as a casual carter, for a few weeks immediately prior to his death had been employed by the same employers as a casual teamster while the employers were on the lookout for a regular man, the defendents were not entitled to compensation upon the basis of his wages as teamster, which were higher than those earned as cartman, but the total amount of wages earned by the cartman, both as carter and as teamster, were to be taken into consideration in calculating the "average weekly earnings." Edge v. Gorton [1912] 3 K. B. (Eng.) 360, 81 L. J. K. B. N. S. 1185, 107 L. T. N. S. 340, 28 Times L. R. 566, 56 Sol. Jo. 719, [1912] W. N. 217, 5 B. W. C. C. 614.

The same method of calculating the average weekly earnings was approved in Dobson v. British Oil & Cake Mills (1912)

although money is earned in another way, it is not earned under contract of employment. And a laborer has not concurrent contracts of employment, where he only takes the second job on which the contract arises after the first one is finished, and he only takes a later one after the second one is finished.9 The concurrent contracts, however, need not be of an ejusdem generis character.10 4. Absences from work.

In computing the average weekly earnings of a workman who had been in the employment for a full year or more, but who was unable to work all of the time because the employer did not have work for him, his total earnings for the year are to be divided by 52, and not by that figure, less the number of weeks he did not work for this reason.11 The same

106 L. T. N. S. (Eng.) 922, [1912] W. C. Rep. 207, 5 B. W. C. C. 405.

Jury v. The Atlanta (Eng.) supra. 7 Buckley v. London & I. Docks (1909) 127 L. T. Jo. (Eng.) 521, 2 B. W. C. C. 327.

8 An employee of a laundry who also gives music lessons is not entitled when injured in the laundry to claim anything for the money earned by giving music lessons which was not earned under a contract of employment. Simmons v. Heath Laundry Co. [1910] 1 K. B. (Eng.) 543, 79 L. J. K. B. N. S. 395, 102 L. T. N. S. 210, 26 Times L. R. 326, 54 Sol. Jo. 392, 3 B. W. C. C. 200.

9 The county court judge is in error in finding that a porter on a wharf, engaged by different shipping companies from time to time, was under concurrent contracts of employment. Cue v. Port of London Authority [1914] 3 K. B. (Eng.) 892, [1914] W. N. 280, 137 L. T. Jo. 211, 83 L. J. K. B. N. S. 1445, 111 L. T. N. S. 736, 7 B W. C. C. 447.

10 The amount earned in the evening at a theater by a workman employed during the day by a railroad company is to be taken into consideration in fixing his average weekly earning, although the rules of the railroad provided that all persons employed by the company must devote themselves exclusively to the company's service. Lloyd v. Midland R. Co. [1914] 2 K. B. (Eng.) 53, 83 L. J. K. B. N. S. 330, 110 L. T. N. S. 513, 30 Times L. R. 247, 58 Sol. Jo. 249, [1914] W. N. 32, [1914] W. C. & Ins. Rep. 108, 7 B. W. C. C. 72.

In fixing the average weekly earnings of a stoker, a retainer as stoker in the Royal Naval Reserve must be taken into account, as well as his wages. The Raphael v. Brandy [1911] A. C. (Eng.) 413, 80 L. J. K. B. N. S. 1067, 105 L. T. N. S. 116, 27 Times L. R. 497, 55 Sol. Jo. 579, 4 B. W. C. C. 307.

11 In calculating the average weekly earnings consideration must be given to the

period of employment the workman, for some reason, did not work. In a Scotch case where the workman had been employed for thirteen weeks, but had been absent for a fortnight because of illness, and for nearly another fortnight because of general trade holidays, the court of session held that the arbitrator was wrong in dividing the total amount earned by thirteen;15 such a holding would amount to an assumption that out of every thirteen weeks the workman would always be ill for two weeks and there would always be two weeks of trade holidays. The case is not very satisfactory because the court apparently took the view that the question was one of fact for the arbitrator; at least, the question of law was not answered, but remit was made to the arbitrator to proceed. The following principles may, however, be fairly drawn from the language of the Lord President: Ordinarily the average weekly earnings of a workman are to be ascertained by dividing the total amount earned during the relevant period of his employment by the number of weeks actually worked within that period, and if there are regularly recurring trade holidays when no work can be done, by deducting from the result above obtained a fraction equal to the fraction of the year during which, for this reason, no wages can be earned. Nothing is said as to how the adsences

15 Carter v. Lang [1998] S. C. 1198, 45 Scot. L. R. 938, 1 B. W. C. C. 379.

16 Where the workman had been employed for two full weeks, one-half the amount he earned during those weeks is his average weekly earnings, although one of the weeks embraced Christmas day, upon which he earned nothing, so that his average weekly earnings for the two weeks were less than his earnings for one of those weeks. Faircloth v. Waring & Gillow (1906; C. C.) 8 W. C. C. (Eng.) 99.

17 In Perry v. Wright [1908] 1 K. B. (Eng.) 441, 1 B. W. C. C. 351, Fletcher Moulton, L. J., said: "For instance, two workmen in the same employment, at the same wages would, in my opinion, be entitled to have their average weekly earnings estimated at the same figure, even though the Wakes Week occurred in the period during which the one had been in the master's employment, and did not so occur in the case of the other. The master would be entitled to have regard taken to the fact that the average weekly earnings in such employ were somewhat less than the £2 by reason of the fact that only fifty weeks were worked out of the fiftytwo of which a year consists; but the rate of remuneration so arrived at must be applied equally to the case of each of the two workmen."

from illness were to be treated, but it seems plain from the language of schedule 1, 2 (c), that nothing should be deducted because of such time.

In an early case before the county court judge, it was held that where a holiday occurred during the two weeks in which the employee worked, the average weekly earnings were only one half of what he actually earned.16

There is dicta in an opinion of one of the judges of the English court of appeal that the average weekly earnings of a workman are not affected by the question whether or not a larger or smaller amount of enforced stoppages due to trade holidays occurs in the period which furnishes the material for the average.1

17

Absence from work because of some unavoidable cause, such as is referred to in 2 (c), must be ejusdem generis with illness; 18 that is, it must be a cause personal to the workman, and not have to do with the work, such as absences due to trade holidays.1

19

Absences of a few days in an employment lasting for one and one-half years may be disregarded in the case of a workman working by the hour.20 Absence of a workman from work because of a strike, not in his own trade, but in an allied trade, is an "unavoidable cause,” and is to be deducted from the time when the workman could have worked.21 Absences due to unavoidable causes are 18 (Eng.) Ibid.

19 Carter v. Lang (Scot.) supra.

20 The court of appeal will dismiss an appeal from an award of the county court judge, who, in estimating the compensation to be paid to the dependent of a workman who has been paid by the hour, took the odd days at the beginning and at the end of the employment as full two weeks, and made no reduction for two periods of four days during which the workman was absent because of illness; the court said that they could not estimate the amount which he would have earned during the two periods in which he was absent because of illness, and that the error in taking the odd days as two full weeks was too trivial to be the subject of an appeal. Turner v. Port of London Authority [1913] W. C. & Ins. Rep. (Eng.) 123, 29 Times L. R. 204, 6 B. W. C. C. 23.

21 In computing the average weekly earnings of a workman who had been employed by an employer for upwards of one year at the same trade, a week during which the workman was absent from his work due to a strike, not in his own trade, but another trade with which his trade was related, should be excluded. Griffiths V. Gilbertson [1915] W. N. (Eng.) 253, 84 L. J. K. B. N. S. 1312.

not to be regarded where the employment has been continuous with the same employer for three years, and the compensation is sought by his dependents.22 5. Period of employment forming basis for computation of average weekly earnings.

In case of the death of the workman, the compensation recoverable by the dependents is based upon the earnings for the previous three-year period; but in case of injury not resulting in death, the workman's compensation is based upon his wages for the period of one year preceding the accident.23 Where a workman has been employed continuously by the same employer for upwards of three years, neither the provision relative to the concurrent employments nor the one relative to absences due to illness is applicable, but the compensation is limited to the amount of wages actually received by the employee.24 And in the case of an injured workman, only the last twelve months of the employment can be taken into consideration, although the conditions as to earnings had considerably changed during that period.25

A workman need not be in the employment for two weeks in order to recover compensation. The English court of appeal had laid down the rule that in order to obtain the benefit of the act a workman must have been, for at least two weeks, in the employment of the employ

22 Where a workman had been in the employment of the same employer for upwards of three years, and had been in the same grade of employment during that time, his dependents are entitled to compensation to the amount of his wages for three years preceding the accident resulting in his death, where that sum is between £150 and £300, and absence due to the illness of the workman is to be disregarded. Greenwood v. Hall [1915] W. N. (Eng.) 1244, 31 Times L. R. 476, 59 Sol. Jo. 577. 23 Perry v. Wright [1908] 1 K. B. (Eng.) 441, 77 L. J. K. B. N. S. 236, 98 L. T. N. S. 327, 24 Times L. R. 186, 1 B. W. C. C. 351.

24 Buckley v. London & I. Docks (1909) 127 L. T. Jo. (Eng.) 521, 2 B. W. C. C. 327; Greenwood v. Hall [1915] W. N. (Eng.) 244, 31 Times L. R. 476, 59 Sol. Jo. 577.

25 Where the workman had been employed by the same employer for many years, but during the last twelve months previous to the accident he had, owing to slackness of work, been employed much less than the full number of hours per week, the compensation was awarded on the basis of the average weekly earnings for the last twelve months only. Kelly v. York Street Flax Spinning Co. (1909; C. C.) 43 Ir. L. T. Jo. 81, 2 B. W. C. C. 493.

er in whose service he has sustained the injury for which he seeks compensation.26 But the decisions cited were reversed by the House of Lords,27 and the correct doctrine was declared to be that the right to compensation given by 1 of the act is not restricted by schedule I. to employments by the week, or for weekly wages, or for two weeks at least, and that employment by the day for one or more days is within the act. It was remarked that the word "average" in the expression "average weekly earnings" is used loosely and inaccurately in the schedule, and that the words in section 1 "in accordance with the first schedule to this act" are not intended to limit or restrict the right of the workman to receive compensation, or the obligation upon the employer to pay it, but denote the manner and mode in which the payment is to be carried into effect. The effect of this decision is that the right to compensation does not depend on the length of service, but merely on the fact that the workman was injured while in the employment of the "undertaker" through an accident arising out of the employment.28 Compensation is recoverable although the workman had not been in the employment long enough to be entitled to any wages.29

There is a conflict between the English and Scotch courts with regard to the effect of the decision of the House of Lords upon the rights of a servant who is

26 Lysons v. Knowles [1900] 1 Q. B. (Eng.) 780, 69 L. J. Q. B. N. S. 449, 64 J. P. 292, 48 Week. Rep. 408, 82 L. T. N. S. 189, 16 Times L. R. 250; Stuart v. Nixon [1900] 2 Q. B. (Eng.) 95, 82 L. T. N. S. 489, 69 L. J. Q. B. N. S. 598, 48 Week. Rep. 598, 16 Times L. R. 335.

27 [1901] A. C. (Eng.) 79, 70 L. J. Q. B. N. S. 170, 65 J. P. 3S8, 49 Week. Rep. 636, 84 L. T. N. S. 65, 17 Times L. R. 156.

28 There is a sufficient basis for computing the "average weekly earnings," where a servant worked on the Friday in one week, and then during the following week until Thursday, when the accident occurred. Cadzow Coal Co. v. Gaffney (1900) 3 Sc. Sess. Cas. 5th series, 72, 38 Scot. L. R. 40, 8 Scot. L. T. 224.

And where the servant was injured on the fifth day of his second week of work. Russell v. McCluskey (1900) 2 Sc. Sess. Cas. 5th series, 1312, 37 Scot. L. R. 931, 8 Scot. L. T. 172.

29 Leonard v. Baird (1901) 3 Sc. Sess. Cas. 5th series, 890, 38 Scot. L. R. 649, 9 Scot. L. T. 83, holding that in a case where a servant was killed so soon after the employment that no right to any wages had accrued at the time of his death, a dependent was entitled to recover £150.

33

In cases of casual and intermittent employment, the average weekly earnings are arrived at by taking the total amount earned, and dividing that sum by the number of weeks during which the employment lasted.34

In Scotland, on the other hand, it has been held that the proper construction of the decision of the House of Lords is that the actual earnings for a part of a week, if the period of work has been no longer, are to be taken as the earnings with reference to which the compensation is to be assessed.31 Where death ultimately resulted from injuries received during the workman's first week of employment, but he had continued to work during a second week, it was held that the earnings of the second week might be taken into account in calculating the amount recoverable.32 But where a workman, after working one week, is injured so soon after the beginning of the following week that no right to any wages had then accrued, the sum earned

30 Ayres v. Buckeridge [1902] 1 K. B. (Eng.) 57, 71 L. J. K. B. N. S. 28, 65 J. P. 804, 50 Week. Rep. 115, 85 L. T. N. S. 472, 18 Times L. R. 20.

This decision apparently overrules Peers v. Astley & T. Collieries Co. (1901; C. C.) 3 W. C. C. (Eng.) 185, in which it was held that where a workman had worked for less than a week, the amount actually earned is to be taken as the average weekly earnings.

Where a workman had worked part of a week only, his compensation is to be fixed with regard to what he would have earned had he worked for the entire week. Greaves v. Mulliners (1901; C. C.) 3 W. C. C. (Eng.) 189.

Where a meat porter secured work at the dock as a strike breaker, being taken on as an extra casual laborer, and was employed for twelve continuous days before his accident, and there was every probability that, but for his accident, he would have been continuously employed until the end of the strike, which lasted for five weeks after the accident, the county court judge is justified in taking the amount he earned for the first completed week as his average weekly earning. Barnett v. Port of London Authority [1913] 2 K. B. (Eng.) 115, 82 L. J. K. B. N. S. 353, 108 L. T. N. S. 277, 29 Times L. R. 252 [1913] W. C. & Ins. Rep. 250 [1913] W. N. 35, 57 Sol. Jo. 282, 6 B. W. C. C. 105.

31 McCue v. Barclay (1902) 4 Sc. Sess.

6. Trade or calendar weeks.

In an English case, where a servant worked for six consecutive days, beginning on Wednesday and ending on the following Tuesday, the work being done under a daily engagement, no notice on either side being necessary to terminate the connection, but where it was also shown that there was a custom in the trade to pay weekly wages, it was held that compensation was properly awarded on the footing that the sum earned during the six days represented his average weekly earnings. The court considered that it was immaterial, for the purposes of the computation, that the trade week of the employer ended on the Thursday night, and negatived the contention of the employer that, for this reason, the average weekly earnings were half of the amount actually received.35 In another case, it is said that the number of weeks constituting the divisor of Cas. 5th series, 909, 39 Scot. L. R. 690, 10 Scot. L. T. 116; Grewar v. Caledonian R. Co. (1902) 4 Sc. Sess. Cas. 5th series, 895, 39 Scot. L. R. 687, 10 Scot. L. T. 111.

32 Doyle v. Beattie (1900) 2 Sc. Sess. Cas. 5th series, 1166, 37 Scot. L. R. 915, 8 Scot. L. T. 131.

33 Nelson v. Kerr (1901) 3 Sc. Sess. Cas. 5th series, 893, 38 Scot. L. R. 645, 9 Scot. L. T. 83.

In Brown v. Cunningham (1904) 6 Sc. Sess. Cas. 5th series (Scot.) 997, it was held that where a workman was engaged for a fixed weekly wage, entered upon his work on a Saturday, and worked for the whole of the following calendar week, at the end of which his employment was terminated by his employers in consequence of an injury resulting in total incapacity, he was entitled to compensation, and that the fixed weekly wage was the basis for determining the amount of the weekly payment. The Lord Justice Clerk said: "I am satisfied that where there is a fixed contract, and it is fulfilled over a full week, the earnings so made by contract form the true basis for ascertaining the rights as to compensation. This is, I think, consistent with the view expressed in the House of Lords in the case of Lysons." See note 26, supra.

34 Williams v. Poulson (1899) 16 Times L. R. (Eng.) 42, 63 J. P. 757.

35 Watters v. Clover (1901) 18 Times L. R. (Eng.) 60.