Part A. Introductory. injuries, for which there had been no I. Introduction and scope of note. previous common-law or statutory remedy, the attempt has also been made to The purpose of this annotation is to simplify the procedure so as to make the bring together the English and Colonial recovery quickly, easily, and inexpenand American cases involving the appli- sively obtainable, thus doing away with cation and effect of the so-called work- the great delay and expense which so men's compensation acts. The most radi- often attended former actions for percal departure in these statutes from sonal injuries to employees.2 the common law or the previous statu- In an annotation of this character, an tory law is the awarding of compensa- | investigation of the causes leading up to tion in cases of injuries to workmen in the passage of these acts, and the ethical, the absence of any negligence, actual or humanitarian, or sociological theories unimputed, on the part of the employer. The defenses of coservice and assumption of risk are entirely abrogated, as is the defense of contributory negligence, except in cases where the negligence of the injured servant amounts to serious or wilful misconduct. In support of these advanced steps, the injury to a workman has frequently been compared to the breaking of a machine, and as the cost of repairing the latter is borne by the industry, so should the burden of injuries to workmen be considered as an incidental expense of the business.1 In addition to giving compensation for 1 The act means that, apart from negligence, "the industry itself should be taxed with an obligation to indemnify the sufferer for what was an 'accident' causing damage." Lord Halsbury, L. C., in Brintons v. Turvey [1905] A. C. (Eng.) 230, 74 L. J. K. B. N. S. 474, 53 Week. Rep. 641, 92 L. T. N. S. 578, 21 Times L. R. 444, 2 Ann. Cas. 137. The essential operation of the statutes herein discussed is, broadly speaking, that, irrespective of any negligence or misconduct on the master's part, the classes of servants to whom they are applicable are, in a certain sense, insured against any accident that takes place in the course of their employment. Cooper v. Wright [1902] A. C. (Eng.) 302, 71 L. J. K. B. N. S. 642, 51 Week. Rep. 12, 86 L. T. N. S. 776, 18 Times L. R. 622, per Lord Halsbury. In 11 Journ. of Soc. of Comparative Legislation, p. 55, will be found an interesting and instructive criticism of the unsatisfactory features of this act. The learned contributor, Sir J. G. Hill, also gives much useful information concerning similar legislation in the countries of Continental Europe and elsewhere. He remarks that "the justification put forward for these new laws is that it is expedient in the public interest derlying them, would be out of place. The discussion will be confined to the case law upon the subject, and the judicial conclusions as to the meaning of the various provisions of the acts will be set forth, and, as far as possible, harmonized, so that the general applicability and effect of the statute, as judicially interpreted, will be shown for future guidance. As these statutes constitute an entirely new departure in the law of employers' liability, it is not surprising that there are numerous conflicting decisions, many of which are due to the inconsistto throw the risk of accidents upon the trade in which they occur, and that the employer can recoup himself for the cost incurred by him by raising the price of his productions and by reducing wages." 2 After mentioning certain difficulties encountered by an injured workman in attempting to recover damages at common law or under the employers' liability act, Lord Brampton, in Cooper v. Wright [1902] A. C. (Eng.) 302, said: "Added to these obstacles, the law itself was for the most part too uncertain, too dilatory, and far too expensive for an ordinary workman to embark in." Lord Stirling, in Field v. Longden [1902] 1 K. B. (Eng.) 47, 71 L. J. K. B. N. S. 120, 66 J. P. 291, 50 Week. Rep. 212, 85 L. T. N. S. 571, 18 Times L. R. 65, observed that the compensation act "was intended for the benefit of workmen, and not for that of the legal profession." 3 Lord Brampton, in Cooper v. Wright (Eng.) supra, stated that the English act was so framed as to provoke rather than to minimize litigation. In Oliver v. Nautilus Steam Shipping Co. [1903] 2 K. B. (Eng.) 639, Lord Vaughan Williams said: "The act is not very easy to construe. It is an act as to which I encies and crudities of the acts them- By numerous cross references between selves, and many others are due to the the division of the note discussing the varying views taken by the different English cases, and that treating the judges before whom the questions arose. American decisions, it is hoped to faciliThe compensation principle originated tate the comparison of decisions conin Continental Europe long before it was struing similar provisions in the various adopted in England, and statutes em- acts. bracing this principle were in force in upwards of twenty-five jurisdictions before any similar act was passed in the United States.5 The first English act was passed in 1897, and the provisions of this act were extended to agricultural laborers by the act of 1900. The second act, passed in 1906, greatly extended the application of the statute, and simplified some of the complicated sections found in the earlier act. The compensation principle has spread so quickly and so broadly among the American jurisdictions that it is probable that, in the near future, compensation acts will be in force in all of the states of the Union, and that these acts will be harmonized and the decisions thereon grow more uniform, so that there will be no more difficulty in construing and applying these acts than in applying any other statutes which are applicable to so broad a field. Considering the length of the various statutes, it would be impracticable even if it would be useful, to print all of the statutes in full; but as the American statutes are patterned more or less closely after the English act, it has been deemed wise to print the text of the latter in full. The English and Colonial decisions will be discussed together, and the American cases will then be taken up and grouped, so far as possible, according to the principle involved, although as the acts differ radically in many particulars, and the decisions covering any one point are not very plentiful, logical treatment cannot in all cases be attained. think I may properly say that the difficulties of construction are so great that it is not desirable that judges should decide more than is absolutely necessary for the decision of the particular case before them." 4 In Sheehy v. Great S. & W. R. Co. [1913] W. C. & Ins. Rep. 404, 47 Ir. Law Times 161, 6 B. W. C. C. 927, Holmes, L. J., said: "There is nothing more tiresome, and, I might add, more unprofitable than to try to reconcile propositions and dicta of judges, including my own, relating to the workmen's compensation act, and I shall not now attempt the task." 5 "According to Bulletin No. 90 (September 1910) of the United States Bureau of Labor, pp. 723-748, the workmen's compensation acts outside the United States, to Part B. English and Colonial decisions. II. In general. The complete text of the English act of 1906 is given below, with such references to the act of 1897 as will indicate to the reader the material changes made. Of course, the most essential change was the extension of the remedy to all employments, instead of to certain designated employments. Wherever there has been a change of sufficient importance to be noted, brackets have been used to show the change, and bracketed matter without further explanation indicates parts of the original act which were omitted in the act of 1906. Where the provisions of the two acts are the same, no attempt has been made to differentiate the cases. In England, appeals from the findings of the arbitrator upon questions of law lie only to the court of appeal, and the great body of decisions is from that court. When the case has been decided by some other court, that fact will be noted unless it appears from the context or from the form of the citation. The same is true in respect to the Irish decisions. In Scotland, appeals lie to the court of sessions, and if the decision is by any other court, that fact will also be noted. The following British colonies, among possibly others, have statutes modelled closely after the English Acts: Alberta, British Columbia, Manitoba, Nova Scotia, Quebec, New South Wales, New Zealand, Queensland, and Western Australia. gether with the dates of first enactment, are: Germany (1884); Austria (1887); Norway (1894); Finland (1895); Great Britain (1897); Denmark (1898); Italy (1898); France (1898); Spain (1900); New Zealand (1900); South Australia (1900); New South Wales (1901); Netherlands (1901); Greece (1901); Sweden (1901); Western Australia (1902); Luxembourg (1902); British Columbia (1902); Russia (1903); Belgium (1903); Cape of Good Hope (1905); Queensland (1905); Hungary (1907); Transvaal (1907); Alberta (1908); Quebec (1909). The statutes in force in those twenty-six jurisdictions in 1909 are summarized in the same place." Article by Eugene Wambaugh, 25 Harvard L. Rev. 132. The Colonial cases will be discussed in connection with the British cases involving similar points. III. Application of the statute generally ($ 1). As to the application of the statute in cases of industrial diseases, see post, 106. a. Text of § 1. Section 1 (1). If in any employment [to which this act applies] personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with the first schedule to this act. (2) Provided that (a) the employer shall not be liable under this act in respect of any injury which does not disable the workman for a period of at least one [two, in the original act] week from earning full wages at the work at which he was employed: (b) When the injury was caused by the personal negligence or wilful act of the employer or of some person for whose act or default the employer is responsible, nothing in this act shall affect any civil liability of the employer, but in that case the workman may, at his option, either claim compensation under this act or take proceedings independently of this act; but the employer shall not be liable to pay compensation for injury to a workman by accident arising out of and in the course of the employment, both independently of and also under this act, and shall not be liable to any proceedings independently of this act, except in case of such personal negligence or wilful act as aforesaid: (c) If it is proved that the injury to a workman is attributable to the serious and wilful misconduct of that workman, any compensation claimed in respect of that injury shall, unless the injury results in death or serious and permanent disablement, be disallowed, the exception as to injuries resulting in death or serious and permanent disablement was not in the original act. (3) If any question arises in any proceedings under this act as to the liability to pay compensation under this act (including any question as to whether the person injured is a workman to whom this act applies), or as to the amount or duration of compensation under this act, the question, if not settled by agreement, shall, subject to the provisions of the first schedule to this act, be settled by arbitration, in accordance with the second schedule to this act. (4) If, within the time hereinafter in this act limited for taking proceedings, an action is brought to recover damages independently of this act for injury. caused by any accident, and it is determined in such action that the injury is one for which the employer is not liable in such action, but that he would have been liable to pay compensation under the provisions of this act, the action shall be dismissed; but the court in which the action is tried shall, if the plaintiff so choose, proceed to assess such compensation, but may deduct from such compensation all or part of the costs which, in its judgment, have been caused by the plaintiff bringing the action instead of proceeding under this act. In any proceeding under this subsection, when the court assesses the compensation it shall give a certificate of the compensation it has awarded and the directions it has given as to the deduction for costs, and such certificate shall have the force and effect of an award under this act. (5) Nothing in this act shall affect any proceeding for a fine under the enactments relating to mines, factories, or workshops, or the application of any such fine, but if any such fine, or any part thereof, has been applied for the benefit of the person injured, the amount so applied shall be taken into account in estimating the compensation under this act.6 b. "Injury by accident" (§ 1, subsec. 1). As to what constitutes an "accident" or "personal injury" within the meaning of the American statutes, see post, 227. There has been considerable conflict as to the meaning of the word "accident" as used in the British act. Lord Halsbury has said that it was to be interpreted according to its ordinary and popular meaning, and similar language was used in another case by Lord Macnaghten. But in an Irish case, the Lord Chancellor observed that "the word 6 The enactments here referred to are the coal mines regulation act 1887, the metalliferous mines regulation act 1872, and the factory and workshop act 1901. 7 Brintons v. Turvey [1905] A. C. (Eng.) 233, 74 L. J. K. B. N. S. 474, 53 Week. Rep. 641, 92 L. T. N. S. 578, 21 Times L. R. 444, 2 Ann. Cas. 137. 8 Fenton v. Thorley [1903] A. C. (Eng.) 443, 72 L. J. K. B. N. S. 787, 52 Week. Rep. 81, 89 L. T. N. S. 314, 19 Times L. R. 684. In this case Lord Lindley said that the 'accident' has, when used in this statute, long ceased to have the meaning the man in the street would attribute to it." 9 In a comparatively early case in the court of appeal, it was said that the word involves the idea of something fortuitous and unexpected.10 But the use of the word "fortuitous" has been criticized in a House of Lords decision as meaning either just the same as accidental, or else introducing the element of "haphazard," which element was misleading, and not warranted by the act; and it was held that the word "accidental" was used in its ordinary and popular sense.11 word is not a technical legal word with a clearly defined meaning. 9 Sheerin v. Clayton [1910] 2 I. R. (Ir.) 105, 3 B. W. C. C. 583. In the House of Lords, an accident has been defined as "an unlooked-for or untoward event which was not expected or designed; and as "an unintended and unexpected occurrence which produces hurt or loss;" 12 it includes or denotes "any unexpected personal injury resulting to the workman, in the course of his employment, from any unlooked-for mishap or occurrence.' "13 the injury is an untoward event, not exWhether or not pected, is to be determined from the standpoint of the workman, and not from a medical aspect.14 It is well settled that to be entitled to compensation for "personal injury by accident" there must be a definite time, place, and circumstance to which the infrom a steel plate with a cold chisel was injured by a piece of the steel so chipped off, which struck him in the eye. Neville v. Kelly Bros. (1907) 13 B. C. 125. The somewhat singular contention rejected by the court was that the occurrence in question was an expected liability naturally resulting from the occupation in which the workman was engaged, and therefore did not involve the element of the fortuitous, apart from which an "accident" is not predicable. 10 Hensey v. White [1900] 1 Q. B. (Eng.) 481, 81 L. T. N. S. 767, 48 Week. Rep. 257, 69 L. J. Q. B. N. S. 188, 63 J. P. 804, 16 Times L. R. 64. 11 Fenton v. Thorley [1903] A. C. (Eng.) 443, 72 L. J. K. B. N. S. 787, 53 Week. Rep. 81, 89 L. T. N. S. 314, 19 Times L. R. 684. Lord Macnaghten said: "It does seem to me extraordinary that anybody should 12 In Ismay v. Williamson [1908] A. C. suppose that when the advantage of insur- (Eng.) 437, 77 L. J. P. C. N. S. 107, 99 L. ance against accident at their employers' T. N. S. 595, 24 Times L. R. 881, 52 Sol. Jo. expense was being conferred on workmen, 713, a workman engaged to rake ashes Parliament could have intended to exclude from the furnaces of a steamship suffered from the benefit of the act some injuries a heat stroke. It was contended that this ordinarily described as 'accidents' which was not an accident, but Lord Ashbourne beyond all others merit favorable consider- said: "If the act is to be interpreted acation in the interest of workmen and em- cording to its 'ordinary and popular meanployers alike. A man injures himself by ing,' as Lord Halsbury said was right in doing some stupid thing, and it is called Brintons v. Turvey [1905] A. C. (Eng.) an accident, and he gets the benefit of the 233, 74 L. J. K. B. N. S. 474, 53 Week. Rep. insurance. It may even be his own fault, 641, 92 L. T. N. S. 578, 21 Times L. R. 444, and yet compensation is not to be disal- 2 Ann. Cas. 137, would not the generality lowed unless the injury is attributable to of mankind say that what occurred was an 'serious and wilful misconduct' on his part. injury caused by an accident? The authorA man injures himself suddenly and unex-ities support this view. In Fenton v. Thorpectedly by throwing all his might and all his strength and all his energy into his work, by doing his very best and utmost for his employer, not sparing himself or taking thought of what may come upon him, and then he is to be told that his case is outside the act because he exerted hi'nself deliberately, and there was an entire lack of the fortuitous element! I cannot think that that is right. I do think that if such were held to be the true construction of the act, the result would not be for the good of the men, nor for the good of the employers either, in the long run. Certainly it would not conduce to honesty or thoroughness in work. It would lead men to shirk and hang back, and try to shift a burthen which might possibly prove too heavy for them on to the shoulders of their comrades." Recovery has been allowed where a workman while engaged in chipping the burs ley (Eng.) supra, where a man ruptured himself in an exertion during his employment, Lord Macnaghten laid down that an accident is used in the popular and ordinary sense of the word, as denoting an unlookedfor mishap, or an untoward event which is not expected or designed.' Lord Lindley in the same case said that 'in the act the word is used in a very loose way,' that it meant any unintended and unexpected occurrence which produces hurt or loss.' 13 Lord Shand in Fenton v. Thorley (Eng.) supra. 14 Fulford v. Northfleet Coal & Ballast Co. (1907; C. C.) 1 B. W. C. C. (Eng.) 222. In Clover v. Hughes [1910] A. C. (Eng.) 242, 3 B. W. C. C. 275, Lord Loreburn, L. C., said: "I cannot agree with the argument presented to your Lordships, that you are to ask whether a doctor acquainted with the man's condition would have expected it. Were that the right view, then it would 8 of the act.20 jury can be referred.15 But an accident | meaning as in the act, and to include in the sense of the act need not be disablement from disease, described in an extraneous circumstance.16 The word "accident" is not "made inappropriate by the fact that the man hurt himself;" 17 or by reason of the fact that "it was caused by deliberate violence" on the part of third persons. 18 A nervous shock causing incapacity to work is as much "personal injury by accident" as is a physical injury.19 Where a scheme, under § 3, purports to be intended as a substitute for the act, the word "accident" in the scheme will be construed as having the same not be an accident if a man very liable to fainting fits fell in a faint from a ladder, and hurt himself." 15 "Except in the case of these industrial or scheduled diseases, unless the applicant can indicate the time, the day, and circumstance, and place, in which the accident has occurred, by means of some definite event, the case cannot be brought within the general purview of the act, and does not entitle the workman or his dependents to compensation." Eke v. Hart-Dyke [1910] 2 K. B. (Eng.) 677, 3 N. C. C. A. 230. a In Alloa Coal Co. v. Drylie (Ct. of Sess.) [1913] W. C. & Ins. Rep. 213, 6 B. W. C. C. 398, 50 Scot. L. R. 350, Lord Dundas said: "I think one may postulate as result of all the decisions that you must have a definite 'accident' of some sort,-not necessarily an occurrence extraneous to the workman,-involving something unusual, unexpected, and undesigned, to which the injury or death can be unequivocally-or at least by a reasonably inferred train of causation in fact-attributed; and also probably, as a corollary, that death from disease-apart from the industrial diseases specially mentioned in the act of 1906 and subsequent statutory rules and orders-is not an 'accident' unless the disease which caused death can be definitely collocated in the relation of effect to cause with some unusual, unexpected, and undesigned event arising at an ascertained time out of the employment." The county court judge is not justified in finding that there was an accident, where a barber's assistant claimed that his hand began to smart on January 17th, and upon consulting a doctor on February 15th he was found to be suffering from dermatitis. Petschett v. Preis (1915) 31 Times L. R. (Eng.) 156. While dermatitis is a schedule disease, the applicant did not proceed under § 8, but under § 1, on the assumption that he had suffered an accident at the time when he first began to feel his hand smart. To succeed under § 1, there must be a finding that there had been an accident, which involved that something had happened at the definite time and place. 16 Euman v. Dalziel [1913] S. C. 246, 50 Scot. L. R. 143, [1913] W. C. & Ins. Rep. 49, 6 B. W. C. C. 900 (peritonitis supervened If a workman has suffered an injury by accident, he will not be deprived of compensation merely because something else occurs to produce incapacity; as where he would likewise have been incapacitated from heart disease,21 or where he has been convicted of a crime and confined in prison.22 It has been pointed out that the statute does not in its terms refer to compensation for an "accident," but to "personal injuries by accident." 23 But the after accident); Alloa Coal Co. v. Drylie, (Scot.) supra (a case of death from pneumonia following a chill after workman had been forced to stand in water for some time.) These cases overruled in effect Perry v. Baker (1901; C. C.) 3 W. C. C. (Eng.) 29, in which the county court judge drew the inference, from a number of decisions of the court of appeal, that an accident within the meaning of the act must be the result of some extraneous circumstance. 17 Lord Robertson, in Fenton v. Thorley [1903] A. C. (Eng.) 443, 72 L. J. K. B. N. Š. 787, 52 Week. Rep. 81, 89 L. T. N. S. 314, 19 Times L. R. 684. 18 Trim Joint District School v. Kelly [1914] A. C. (Eng.) 667, 83 L. J. P. C. N. S. 220, 111 L. T. N. S. 306, 30 Times L. R. 452, (1914) W. N. 177, 58 Sol. Jo. 493, 7 B. W. C. C. 274, [1914] W. C. & Ins. Rep. 359, 48 Ir. Law Times, 141. 19 A nervous shock caused by a fatal injury to a fellow workman is an "accident." Yates v. South Kirkby, F. & H. Collieries [1910] 2 K. B. (Eng.) 538, 79 L. J. K. B. N. S. 1035, 103 L. T. N. S. 170, 26 Times L. R. 596, 3 B. W. C. C. 418, 3 N. C. C. A. 225. 20 Leaf v. Furze (Div. Ct.) [1914] 3 K. B. (Eng.) 1068, 83 L. J. K. B. N. S. 1822. 21 Harwood v. Wyken Colliery Co. [1913] 2 K. B. (Eng.) 158, 82 L. J. K. B. N. S. 414, 108 L. T. N. S. 283, 29 Times L. R. 290, 57 Sol. Jo. 300, [1913] W. C. & Ins. Rep. 317, [1913] W. N. 53, 6 B. W. C. C. 225. 22 McNally v. Furness [1913] 3 K. B. (Eng.) 605, 82 L. J. K. B. N. S. 1310, 109 L. T. N. S. 270, 29 Times L. R. 678, [1913] W. N. 239, 6 B. W. C. C. 664, [1913] W. C. & Ins. Rep. 717. A different result has been reached in an earlier case in the county court. Clayton v. Dobbs (1908) 2 B. W. C. C. (Eng.) 488. 23 In Warner v. Couchman [1912] A. C. (Eng.) 35, 5 B. W. C. C. 177. Lord Loreburn, L. C., said: "I will only say this further: To be perfectly strict and accurate, it is somewhat lax to speak of this statute as though it referred to an accident. I am perfectly conscious that I myself, as well as others, have fallen into that lapsus linguæ; but at times it may be apt to con |