the grounds upon which he arrived at his findings.38 Several other decisions on this section of schedule I. but involving no general principle will be found discussed in the note below.39 As to the effect of refusal to have an operation performed upon the right of review, see notes 26 et seq. ante, 139. k. Payment of lump sum (¶ 17). There does not exist anywhere in the act, except in schedule I. ¶ 17, any right to award a lump sum.40 Under this paragraph the employer's right to redeem is absolute; 41 and the registrar is liable in damages to the employer for failure to record a memorandum of agreement as to a lump sum, where it is signed by the agent for the employer, although former work at the old rate of wages. Jones v. Anderson (1914) 84 L. J. P. C. N. S. (Eng.) 47, 112 L. T. N. S. 225, 31 Times L. R. 76, [1914] W. N. 432, 59 Sol. Jo. 159, [1915] W. C. & Ins. Rep. 151, 8 B. W. C. C. 2. The county court judge was justified in increasing from a nominal amount the compensation of a man who had lost an eye by accident, and consequently could not do his work properly and was reduced to the status of a casual laborer. Brown v. Thornycroft (1912) 5 B. W. C. C. (Eng.) 386. 38 Jones v. Tirdonkin Colliery Co. (1911) 5 B. W. C. C. (Eng.) 3. 39 In an application by an employer for review and ending of a weekly payment made under agreement, because the workman had recovered and had been certified as recovered by a medical practitioner selected by the employer, the sheriff substitute was not entitled to refuse the allowance of proof that the workman had not recovered. Johnstone v. Cochran (1904) 6 Sc. Sess. Cas. 5th series, 854, 41 Scot. L. R. 644, 12 Scot. L. T. 175. form 53, which by rule 56a (4) must accompany such payment, requires that it shall be signed by the employers or their solicitors.42 43 The arbitrator in making an award of a lump sum has no power to make an optional award, and he has no jurisdiction over an application for the reduction of liability for weekly payments by the payment of a lump sum, where the applicant limits the lump sum to a certain amount.** There is no provision in the act for the review of an award of a lump sum in redemption of the weekly payment, since ¶ 16 applies to the review of weekly payments only.45 Unless the county court judge is satisfied that the incapacity of the workman is permanent, he is not, in awarding a | (1909) S. C. 426, 46 Scot. L. R. 354, 2 B. W. C. C. 131. The county court judge was justified in finding that a workman was still entitled to compensation, where the workman was suffering from nystagmus and the county court judge found that his susceptibility to nystagmus was increased. Garnant Anthracite Collieries v. Rees [1912] 3 K. B. (Eng.) 372, 81 L. J. K. B. Ñ. S. 1189, 107 L. T. N. S. 279, 5 B. W. C. C. 694. 40 Mulholland v. Whitehaven Colliery Co. [1910] 2 K. B. (Eng.) 278, 79 L. J. K. B. N. S. 987, 26 Times L. R. 462, 102 L. T. N. S. 663, 3 B. W. C. C. 317. 41 In Kendall v. Pennington (1912) 106 L. T. N. S. (Eng.) 817, [1912] W. C. Rep. 144, 5 B. W. C. C. 335, the court held that, as the employer's right to redeem is absolute, the county court judge is not justified in refusing the employer's application to redeem upon the ground that it would not be for the benefit of the workman to have so large a sum paid to him at once, and that provision is made in clause 17 for investing the sum for the benefit of the workman in such a case. 42 Thompson v. Ferraro (1913) 57 Sol. Jo. (Eng.) 479, 6 B. W. C. C. 461. 43 Calico Printers' Asso. v. Booth [1913] 3 K. B. (Eng.) 652, 82 L. J. K. B. N. S. 985, [1913] W. C. & Ins. Rep. 540, 109 L. T. N. S. 123, 6 B. W. C. C. 551. In this case the judge made an award that a weekly payment "may be redeemed." 44 Castle Spinning Co. v. Atkinson [1905] 1 K. B. (Eng.) 336, 74 L. J. K. B. N. S. 265, 53 Week. Rep. 360, 92 L. T. N. S. 147, 21 Times L. R. 192. Where the workman made a definite claim and the employer admitted his liability but claimed that the workman had recovered his earning capacity upon a fixed date and asked the court to terminate the workman's right to compensation, the proper procedure was for the sheriff substitute not to grant a decerniture for the admitted liability and to hold that there was no dispute to be submitted to arbitration, but to make a finding that the workman was entitled to compensation to the amount of the admitted liability, and then to take up the question 45 Marshall v. Prince [1914] 3 K. B. whether the compensation was to be ended (Eng.) 1047, 30 Times L. R. 654, 137 L. T. or not at the date fixed by the employer. Jo. 316, 58 Sol. Jo. 721, 7 B. W. C. C. 755. The fact that the workman made no The applicant in this case was an infant claim for compensation beyond the date and the court of appeal held that he was mentioned was not the equivalent of a in no better position than an adult so far finding that his right to compensation had as procuring a review of an award of a terminated. Bowhill Coal Co. v. Malcolm | lump sum was concerned. lump sum, to be guided by the principle | is a question of fact, dependent upon the laid down in 17 of the first schedule.16 particular circumstances of each case.49 In a Scotch case it was held that a In an application for the redemption workman who had lost an arm was per- of weekly payments the amount which manently incapacitated within the mean- the employer has already paid is irreleing of 17.47 But it has been pointed out that because some physical injury is permanent, it does not follow that the incapacity is permanent.48 In this point of view the amount of the lump sum paid 46 Swannick v. Congested Dist. Board [1913] W. C. & Ins. Rep. 96, 46 Ir. Law Times, 253, 6 B. W. C. C. 449. 47 National Teleph. Co. v. Smith [1909] S. C. 1363, 46 Scot. L. R. 988. 48 In fixing the lump sum by which the weekly payments of an injured employee may be redeemed, the county court judge must direct his mind to the question whether the payments may be increased or diminished in the future; the fact that the physical injury is permanent is not conclusive on the question whether the incapacity is permanent. Calico Printers' Asso. v. Higham [1912] 1 K. B. (Eng.) 93, [1911] W. N. 221, 28 Times L. R. 53, 56 Sol. Jo. 89. Cozens-Hardy, M. R., disagreed with the conclusion of Lord Dundas and Lord Ardwell in National Teleph. Co. v. Smith [1909] S. C. 1363, 46 Scot. L. R. 988, 2 B. W. C. C. 417, that where a man was in receipt of half wages in consequence of total incapacity the 75 per cent rule must be applied, and that no preliminary inquiry was necessary to determine whether the incapacity was permanent. 49 In Staveley Coal & I. Co. v. Elson [1912] W. C. Rep. (Eng.) 228, 5 B. W. C. C. 301, the court of appeal held that the county court judge misdirected himself when he awarded as a lump sum the actuarial value of the average weekly payments. The county court judge followed National Teleph. Co. v. Smith (Scot.), but, as it was pointed out by the court of appeal, that case had been dissented from in Calico Printers' Asso. v. Higham (Eng.) supra. In Pattinson v. Stevenson (1900; C. C.) 109 L. T. Jo. (Eng.) 106, 2 W. C. C. 156, where the parties had agreed upon the actuarial value of the weekly payment for the life of the workman, the county court judge determined that that value was subject to deduction on the contingency of his condition improving and in respect to his dying at an earlier age than the average human life. This decision was subsequently affirmed by the court of appeal on June 30, 1900. In Grant v. Conroy (1904; C. C.) 6 W. C. C. (Eng.) 153, a lump sum of £250 was awarded a man forty years of age, both of whose hands had been severely and probably permanently injured, who had been receiving one pound a week as compensation. 50 In Victor Mills v. Shakleton [1912] 1 K. B. (Eng.) 22 [1911] W. N. 197, 81 L. J. K. B. N. S. 34, 105 L. T. N. S. 613, it vant.5 50 In the note below will be found some cases dealing with questions of practice under this paragraph.51 was held that under § 13 of the first schedule (act of 1897) it was error for the county court judge, in fixing the lump sum, to estimate the damages which the workman would have been awarded at the time of the accident, and deduct therefrom the payments received by him, and to award the balance; all the county court judge has to do in such a case is to assess the redemption price of the weekly payments payable under the award. Cozens-Hardy, M. R., took the view that such sums were recoverable in a separate action. Victor Mills v. Shakleton (Eng.) was followed by Dutka v. Bankhead Mines (1915) 23 D. L. R. (Alberta) 273. 51 It was error for the county court judge to direct the employer to pay the cost, where the workman had agreed to accept a lump sum in discharge of the employer's liability and the matter only came before the court because the registrar was dissatisfied as to the amount of the commutation, which amount, however, was held to be satisfactory by the judge. Kierson v. Thompson [1913] 1 K. B. (Eng.) 587, 82 L. J. K. B. N. S. 920, 108 L. T. N. S. 237, 29 Times L. R. 205, 57 Sol. Jo. 226, [1913] W. N. 12, [1913] W. C. & Ins. Rep. 140, 6 B. W. C. C. 60. Where the county court judge denied the application of the workman to review and increase the amount of compensation, and the judge immediately by the consent of the parties took up the application of the employers for payment of a lump sum and made an award, the order of the county court judge denying a review cannot be appealed from, since the application to redeem was by consent, although the payments had continued for about four months only. Howell v. Blackwell [1912] W. C. Rep. (Eng.) 186, 5 B. W. C. C. 293. On an application by the employers under schedule I. (17) to redeem weekly payment, the judge properly excluded his own personal knowledge gained from other sources. Calico Printers' Asso. v. Booth 29 Times L. R. 664, 57 Sol. Jo. 662, [1913] 3 K. B. (Eng.) 652, 82 L. J. K. B. N. S. 985, 6 B. W. C. C. 556. Where an employer, who was paying compensation, applied for a diminution or redemption of a weekly payment, he was entitled, after the workman had answered and objected to it and before the matter came on for jury, to withdraw the application so far as it related to the question of redemption. Gotobed v. Petchell [1914] · 2 K. B. (Eng.) 36, 83 L. J. K. B. N. S. 1. Set-offs against weekly payments | refers the matter, or fails to settle the (1 19). The purpose of the act is to give to the workman for his subsistence the full amount of the weekly payments.52 Money paid in weekly payments in excess of what is legally required to be paid cannot be offset against future payments.53 An allowance of coal given by custom to all miners when incapacitated is not to be regarded as compensation, this being his due under his contract of employment.54 But the employer may, under an agreement with the workman, deduct the amount of weekly rent which the workman as the employer's tenant owed him, from the amount of the weekly payment.55 XXI. Arbitration (sched. II.). a. Text of schedule II. Second Schedule. Arbitration, etc. (1) For the purpose of settling any matter which under this act is to be settled by arbitration, if any committee, representative of an employer and his workmen, exists with power to settle matters under this act in the case of the employer and workmen, the matter shall, unless either party objects by notice in writing sent to the other party before the committee meet to consider the matter, be settled by the arbitration of such committee, or be referred by them in their discretion to arbitration as hereinafter provided. (2) If either party so objects, or there is no such committee, or the committee so 429, 110 L. T. N. S. 453, 30 Times L. R. 253, 58 Sol. Jo. 249, [1914] W. N. 33, [1914] W. C. & Ins. Rep. 115, 7 B. W. C. C. 109. An agreement for the redemption of the weekly payment by a lump sum should be registered by the registrar upon the application of either party, although the agreement has been executed, the money having been paid. Rex v. Thetford County Ct. Registrar (1915; Div. Ct.) [1915] 1 K. B. (Eng.) 224, 112 L. T. N. S. 413, 84 L. J. K. B. N. S. 291, [1915] W. C. & Ins. Rep. 136, [1914] W. N. 438, 8 B. W. C. C. 276. 52 An employer who has been found liable in a weekly payment under the act to a workman cannot set off against that payment a sum awarded to him as expenses, against the workman, in an application for the diminution of the weekly payment. Rosewell Gas Coal Co. v. M'Vicar (1904) 7 Sc. Sess. Cas. 5th series (Scot.) 290. The Lord Justice Clerk said: "The object of the act is to secure that an injured workman shall have for his subsistence the sum awarded to him, and that is not to be trenched upon in any way." 53 Muller v. Batavier Line (1909; C. C.) 126 L. T. Jo. (Eng.) 96, 2 B. W. C. C. 495. (3) In England the matter, instead of being settled by the judge of the county court, may, if the Lord Chancellor so authorizes, be settled, according to the like ed by that judge, and the arbitrator so procedure, by a single arbitrator appointappointed shall, for the purposes of this act, have all the powers of that judge. (4) The arbitration act of 1889 shall not apply to any arbitration under this act; but a committee or an arbitrator may, if they or he think fit, submit any question of law for the decision of the judge of the county court, and the decision of the judge on any question of law, either on such submission, or in any case where he himself settles the matter under this act, or where he gives any decision or makes any order under this act, shall be final, unless within the time and in accordance with the conditions prescribed by rules of the supreme court either party appeals to the court of appeal; and the judge of the county court, or the arbitrator appointed by him, shall, for the purpose of proceedings under this act, have the same powers of procuring the attendance of witnesses and the production of documents as if the proceedings were an action in the county court. (5) A judge of county courts may, if The employer is not entitled to set off against a period during which he had paid no compensation the amount which he had paid for a previous period in excess of what was due to the workman as compensation. Doyle v. Cork Steam Packet Co. [1912] W. C. Rep. (Eng.) 203, 5 B. W. C. C. 350. Where by order of the county court judge the amount of compensation has been duly reduced as of a prior date, the employer is not entitled to treat the excess which he paid between the time when the reduction was to take place and the date when the order was made as payments pro tanto in advance of the reduced payments. Hosegood v. Wilson [1911] 1 K. B. (Eng.) 30, 80 L. J. K. B. N. S. 519, 103 L. T. N. S. 616, 27 Times L. R. 88, 4 B. W. C. C. 30, [1910] W. N. 242. 54 Simmonds v. Stourbridge Brick & Fire Clay Co. [1910] 2 K. B. (Eng.) 269, 79 L. J. K. B. N. S. 997, 102 L. T. N. S. 732, 26 Times L. R. 430. 55 Brown v. South Eastern & C. R. Co. (1910) 3 B. W. C. C. (Eng.) 428. he thinks fit, summon a medical referee to sit with him as an assessor. (6) Rules of court may make provision for the appearance, in any arbitration under this act, of any party by some other person. weekly payment by a lump sum, or an agreement as to the amount of compensation payable to a person under any legal disability, or to dependents, ought not to be registered by reason of the inadequacy of the sum or amount, or by reason of the agreement having been obtained by fraud or undue influence, or other improper means, he may refuse to record the memorandum of the agreement sent to him for registration, and refer the matter to the judge, who shall, in ac (7) The costs of and incidental to the arbitration and proceedings connected therewith shall be in the discretion of the committee, arbitrator, or judge of the county court, subject as respects such judge and an arbitrator appointed by him to rules of court. The costs, wheth-cordance with rules of court, make such er before a committee or an arbitrator or in the county court, shall not exceed the limit prescribed by rules of court, and shall be taxed in manner prescribed by those rules, and such taxation may be reviewed by the judge of the county court. (8) In the case of the death, or refusal or inability to act, of an arbitrator, the judge of the county court may, on the application of any party, appoint a new arbitrator. order (including an order as to any sum already paid under the agreement) as under the circumstances he may think just; and (e) The judge may, within six months after a memorandum of an agreement as to the redemption of a weekly payment by a lump sum, or of an agreement as to the amount of compensation payable to a person under any legal disability, or to dependents, has been recorded in the register, order that the record be removed from the register on proof to his satisfaction that the agreement was obtained by fraud or undue influence or other improper means, and may make such order (including an order as to any sum already paid under the agreement) as under the circumstances he may think just. (9) Where the amount of compensation under this act has been ascertained, or any weekly payment varied, or any other matter decided under this act, either by a committee or by an arbitrator or by agreement, a memorandum thereof shall be sent, in manner prescribed by rules of court, by the committee or arbitrator, or by any party interested, to the registrar of the county court, who (10) An agreement as to the redempshall, subject to such rules, on being tion of a weekly payment by a lump sum, satisfied as to its genuineness, record if not registered in accordance with this such memorandum in a special register act, shall not, nor shall the payment of without fee, and thereupon the memor- the sum payable under the agreement, andum shall for all purposes be en-exempt the person by whom the weekly forceable as a county court judgment. payment is payable from liability to conProvided that (a) no such memorandum tinue to make that weekly payment, and shall be recorded before seven days after an agreement as to the amount of comthe despatch by the registrar of notice pensation to be paid to a person under a to the parties interested; and— legal disability, or to dependents, if not so registered, shall not, nor shall the payment of the sum payable under the agreement, exempt the person by whom the compensation is payable from liability to pay compensation, unless, in either case, he proves that the failure to register was not due to any neglect or default on his part. (b) Where a workman seeks to record a memorandum of agreement between his employer and himself for the payment of compensation under this act, and the employer, in accordance with rules of court, proves that the workman has in fact returned to work and is earning the same wages as he did before the accident, and objects to the recording of such memorandum, the memorandum shall only be recorded, if at all, on such terms as the judge of the county court, under the circumstances, may think just; and (11) Where any matter under this act is to be done in a county court, or by, to, or before the judge or registrar of a county court, then, unless the contrary intention appear, the same shall, subject (c) The judge of the county court may to rules of court, be done in, or by, to, at any time rectify the register; and-or before the judge or registrar of, the (d) Where it appears to the registrar county court of the district in which all of the county court, on any information the parties concerned reside, or, if they which he considers sufficient, that an reside in different districts, the district agreement as to the redemption of a prescribed by rules of court without prejudice to any transfer in manner pro- | may think fit, confer on any committee vided by rules of court. representative of an employer and his (12) The duty of a judge of county workmen, as respects any matter in courts under this act, or in England of which the committee act as arbitrators, an arbitrator appointed by him, shall, or which is settled by agreement subsubject to rules of court, be part of the mitted to and approved by the comduties of the county court, and the offi-mittee, all or any of the powers conferred cers of the court shall act accordingly, by this act exclusively on county courts and rules of court may be made both for or judges of county courts, and may by any purpose for which this act authorized the order provide how and to whom rules of court to be made, and also gen- the compensation money is to be paid erally for carrying into effect this act in cases where, but for the order, the so far as it affects the county court, or an arbitrator appointed by the judge of money would be required to be paid into court, and the order may exclude the county court, and proceedings in the county court or before any such arbitra- from the operation of provisos (d) and tor, and such rules may, in England, be (e) of ¶ (9) of this schedule agreements made by the five judges of county courts submitted to and approved by the comappointed for the making of rules under mittee, and may contain such incidental, 164 of the county courts act 1888, consequential, or supplemental provisions and when allowed by the Lord Chancel as may appear to the Secretary of State lor, as provided by that section, shall to be necessary or proper for the purhave full effect without any further con- poses of the order. sent. (13) No court fee, except such as may be prescribed under ¶ (15) of the first schedule to this act, shall be payable by any party in respect of any proceedings by or against a workman under this act in the court prior to the award. (14) Any sum awarded as compensation shall, unless paid into court under this act, be paid on the receipt of the person to whom it is payable under any agreement or award, and the solicitor or agent of a person claiming compensation under this act shall not be entitled to recover from him any costs in respect of any proceedings in an arbitration under this act, or to claim a lien in respect of such costs on, or deduct such costs from, the sum awarded or agreed as compensation, except such sum as may be awarded by the committee, the arbitrator or the judge of the county court, on an application made either by the person claiming compensation, or by his solicitor or agent, to determine the amount of costs to be paid to the solicitor or agent, such sum to be awarded subject to taxation and to the scale of costs prescribed by rules of court. (15) Any committee, arbitrator, or judge may, subject to regulations made by the Secretary of State and the Treasury, submit to a medical referee or report any matter which seems material to any question arising in the arbitration. (16) The Secretary of State may, by order, either unconditionally or subject to such conditions or modifications as he (17) In the application of this schedule to Scotland-(a) "County court judgment" as used in ¶ (9) of this schedule, means a recorded decree arbitral; (b) Any application to the sheriff as arbitrator shall be heard, tried, and determined summarily in the manner provided by § 52 of the sheriff courts (Scotland) act 1876, save only that parties may be represented by any person authorized in writing to appear for them, and subject to the declaration that it shall be competent to either party, within the time and in accordance with the conditions prescribed by act of sederunt, to require the sheriff to state a case on any question of law determined by him, and his decision thereon in such case may be submitted to either division of the court of session, who may hear and determine the same, and remit to the sheriff with instruction as to the judgment to be pronounced, and an appeal shall lie from either of such divisions to the House of Lords; (c) Paragraphs (3), (4), and (8) shall not apply. (18) In the application of this schedule to Ireland the expression "judge of the county court" shall include the recorder of any city or town, and an appeal shall lie from the court of appeal to the House of Lords. [It has not been deemed necessary to give any of the text of the second schedule of the original act; but it may be noted that, for the most part, the later act follows along the lines of the earlier 'one.] |