2 No recovery was allowed where a girl engaged in passing sheaves on a threshing machine undertook, in disobedience to an express prohibition, to step across the opening through which they were fed to the machine, merely for the purpose of speak ing to a friend, and without any necessity arising out of the work. Callaghan v. Maxwell (1900) 2 Sc. Sess. Cas. 5th series, 420, 37 Scot. L. R. 313, 7 Scot. L. T. 339.

Nor where a miner infringed a rule forbidding him to carry a naked light on his cap while carrying cartridges not inclosed in a case. Dailly v. Watson (1900) 2 Sc. Sess. Cas. 5th series, 1044, 37 Scot. L. R. 782, 7 Scot. L. T. 73.

Nor where miners contravene a special rule framed under the coal mines regulation act. United Collieries v. M'Ghie (1904) 6 Sc. Sess. Cas. 5th series, 808, 41 Scot. L. R. 705, 12 Scot. L. T. 650; Lynch v. Baird (1904) 6 Sc. Sess. Cas. 5th series, 271, 41 Scot. L. R. 214, 11 Scot. L. T. 597 (facts, however, did not show contravention).

Nor where a miner violated a rule requiring the erection of props at specified intervals. O'Hara V. Cadzow Coal Co. (1903) 5 Sc. Sess. Cas. 5th series (Scot.) 439. The Lord Justice Clerk said: "The rule is an imperative one, and is plainly meant to insure the safety of the worker, and the failure to carry it out is plainly 'serious misconduct,' as adding greatly to danger. That it was wilful is also plain, for there is no suggestion of an excuse for the disobedience."

Nor where a miner failed to get into a manhole in the main haulage road of the mine, after he had been warned by a fellow workman that a train of cars was approaching. John v. Albion Coal Co. (1901) 18 Times L. R. (Eng.) 27, 65 J. P. 788.

Nor where the servant cleaned machinery in motion, such an act being forbidden by a rule known to him. Guthrie v. Boase Spinning Co. (1901) 3 Sc. Sess. Cas. 5th series, 769, 38 Scot. L. R. 483.

Nor where an engine-driver left the foot plate of the engine while in motion, contrary to rules. Bist v. London & S. W. R. Co. [1907] A. C. (Eng.) 209, 76 L. J. K. B. N. S. 703, 96 L. T. N. S. 750, 23 Times L. R. 471, 8 Ann. Cas. 1; Jones v. London & S. W. R. Co. (1901) 3 W. C. C. (Eng.) 46. Nor where a workman failed to use a guard to a saw which he had been directed to use by both the foreman and a factory inspector. Brooker v. Warren [1907] 23 Times L. R. (Eng.) 201.

The disobedience by boys of positive directions not to go to a certain dangerous place is "serious and wilful misconduct." Powell v. Lanarkshire Steel Co. (1904) 6 Sc. Sess. Cas. 5th series (Scot.) 1039.

A deliberate breach of a regulation forbidding the use of a freight elevator to reach another floor, committed by an inexperienced workman after two warnings, is serious and wilful misconduct. Granick v. British Columbia Sugar Ref. Co. (1909) 14 B. C. 251.

The breach of a general rule in a mine and disobedience of the order of a deputy is serious and wilful misconduct. Watson v. Butterley Co. (1902; C. C.) 114 L. T. Jo. (Eng.) 178, 5 W. C. C. 51.

Where a miner after lighting a fuse and retiring to a safe place waits only three minutes before returning to see whether or not the fuse has gone out, instead of the thirty minutes required by the rules of the mine, he is guilty of serious and wilful misconduct which prevents a recovery of compensation. Waddell v. Coltness Iron Co. [1913] W. C. & Ins. Rep. 42, 50 Scot. L. R. 29, 6 B. W. C. C. 306.

A workman employed in a mine, who, despite warnings and in violation of the orders of the manager, rides upon a truck of ore at point where it will travel about 6 miles an hour by gravitation and where the track is curving and only temporary, is guilty of serious and wilful misconduct. Rowe v. Reynolds (1910) 12 West Austr. L. R. 75.

A collier who permits his naked light to remain in such a position that it ignites gunpowder, and thereby commits a breach of a special rule, is guilty of wilful and serious misconduct which precludes a recovery. Donnachie v. United Collieries [1910] S. C. 503, 47 Scot. L. R. 412.

The violation of a rule forbidding the opening of the gate fencing to a shaft before the cage is stopped is "serious and wilful" misconduct. George v. Glasgow Coal Co. [1909] A. C. (Eng.) 123, 78 L. J. P. C. N. S. 47, 99 L. T. N. S. 782, 25 Times L. R. 57 [1909] S. C. (H. L.) 1, 46 Scot. L. R. 28. Lord Loreburn, L. C., and Lord Robertson both expressed the opinion that the violation of a rule was not prima facie evidence of "serious and wilful" misconduct.

A charwoman who in hanging out clothes stands upon the ledge of a glass frame, which she has been forbidden to do, is guilty of serious and wilful misconduct. Beale v. Fox (1909; C. C.) 126 L. T. Jo. (Eng.) 257, 2 B. W. C. C. 467.

In Hill v. Granby Consol. Mines (1906) 12 B. C. 118, where a brakeman stood on the platform of a car in such a position that when it entered a shed projecting from the mouth of a tunnel he would inevitably be killed, Duff, J., said: "Any neglect is 'serious neglect' within the meaning of the act, which in the view of reasonable persons, exposes anybody (including the person guilty of it) to the risks of serious injury. The test is the apprehended, as distinguished from the actual, consequences."

ally produced within the meaning of the Quebec act. Intoxication has been held to be serious and wilful misconduct. As to whether injuries by accident received by an employee while he is intoxicated "arise out of and in the course of his employment," see note 47 ante.

The making of a false representation by an infant that he is of full age in order to secure employment is not "serious and wilful misconduct or serious neglect," where it appears that the accident is not solely attributable to the misrepresentation.5 It is to be noted that under the act of 1906, serious and wilful misconduct is not a bar to compensation where the injury results in death or in serious and permanent disablement. What constitutes serious and permanent disablement has been passed upon in a few cases."

8 Jetté v. Grand Trunk R. Co. (1911) Rap. Jud. Quebec, 40 C. S. 204 (brakeman jumped on a moving train).

4 Going up a ladder while intoxicated, carrying unnecessarily a large piece of timber and failing to use the hands in the proper and ordinary way for support, is serious and wilful misconduct. Burrell v. Avis (1898; C. C.) 106 L. T. Jo. (Eng.) 61, 1 W. C. C. 129.

Being drunk and unfit to work is serious and wilful misconduct. M'Groarty v. Brown (1906) 8 Sc. Sess. Cas. 5th series (Scot.)

809.

5 Darnley v. Canadian P. R. Co. (1908) 14 B. C. 15, 2 B. W. C. C. 505.

6"I think that the 'serious and wilful misconduct' section of the act-§ 1, subsec. (2) (c) really throws great light on the present case. It is not every misconduct that prevents a workman from recovering compensation. It must be proved that the misconduct was 'serious and wilful;' and although the present case does not come under that provision,-because for some reason the section does not apply to a case where the accident results in death, -still the principle that it is not every misconduct which disentitles a workman

to the benefit of the act must apply in this case as in every other." Cozens-Hardy, M. R., in Robertson v. Allan Bros. & Co. (1908) 1 B. W. C. C. (Eng.) 172.

Serious and wilful misconduct is not material where the workman has been seriously and permanently disabled. Jackson v. Denton Colliery Co. [1914] W. C. & Ins. Rep. (Eng.) 91, 110 L. T. N. S. 559, 7 B. W. C. C. 92.

In Weighill v.. South Hetton Coal Co. [1911] 2 K. B. (Eng.) 757, in discussing the effect of the provision of the act of 1906, which provides that serious and wilful misconduct is not a bar to compensation where the injury results in "death or serious and permanent disablement," Cozens-Hardy, M. R., said: "Serious and wilful misconduct within the sphere of the

Where the county court judge on the hearing permitted an amendment so as to allow the employer to set up the defense of serious and wilful misconduct, which was not raised by the answer nor in the correspondence between the parties, the workman is entitled to an adjournment in order to call evidence in rebuttal.8

The phrase "serious neglect" in 2, subsec. (c) of the British Columbia act does not refer to the conduct of the workman after the injury.9

Under the Quebec act, the compensation recoverable by an injured employee is reducible to the extent that the injuries were caused by the fault of the workman.10

Serious and wilful misconduct to prevent a recovery must be the proximate cause of the injury. And the burden employment does not prevent the workman's dependents from claiming compensation: serious and wilful misconduct outside the sphere of his employment is entirely different. Serious and wilful misconduct outside the sphere of his employment does not bring within the sphere of the employment that which but for the serious and wilful misconduct would be outside of it.”

Although a collier in going into a dangerous working in disobedience to the colliery special rules, and against the warnings of a fireman or overlooker, was guilty of "serious and wilful" misconduct, yet if he did so in an honest attempt to further that which he was instructed to effect, his dependents may secure compensation for his death, which resulted from such act. Harding v. Brynddu Colliery Co. [1911] 2 K. B. (Eng.) 747, 80 L. J. K. B. N. S. 1052, 105 L. T. N. S. 55, 27 Times L. R. 500, 55 Sol. Jo. 599, 4 B. W. C. C. 269.

7 A workman who has lost two fingers of his right hand is seriously and perma. nently disabled, and is entitled to com. pensation notwithstanding the injury was occasioned by his "serious and wilful" misconduct. Hopwood v. Olive (1910) 102 L. T. N. S. (Eng.) 790, 3 B. W. C. C. 357.

The loss of the top joint of the middle finger of the right hand of a machinist may be found to be serious and permanent disablement within the meaning of § 1 (2) Brewer v. Smith, (1913) (3) of the act.

6 B. W. C. C. (Eng.) 651.

8 Casey v. Humphries [1913] W. N. (Eng.) 221, 29 Times L. R. 647, 57 Sol. Jo. 716, [1913] W. C. & Ins. Rep. 485, 6 B. W. C. C. 520, 4 N. C. C. A. 881.

9 Powell v. Crow's Nest Pass Coal Co. (1915) 23 D. L. R. (B. C.) 57.

10 Croteau v. Victoriaville Furniture Co. (1911) Rap. Jud. Quebec, 40 C. S. 44.

11 A breach of a statutory rule as to mines is "serious and wilful misconduct," but such breach is not a bar to recovery, unless it is the cause of the accident. Pra

'15 Dunlop v. Rankin (1901) 4 Sc. Sess. Cas. 5th series, 203, 39 Scot. L. R. 146. See also Cochrane v. Traill (Ct. of Sess.) 2 F. (Scot.) 794, as cited in 2 Mew's Dig. Supp. 1576.

16 Where there is an implied agreement between the parties, there is no jurisdiction for an arbitrator. Jones v. Great Central R. Co. (1901) 4 W. C. C. (Eng.) 23; Webster v. London & N. W. R. Co. (1901; C. C.) 3 W. C. C. (Eng.) 52; Busby v. Richardson (1901; C. C.) 3 W. C. C. (Eng.) 54; Trenear v. Wells (1900; C. C.) 3 W. C. C. (Eng.) 58.

17 In Barron v. Carmichael (1912) 5 B. W. C. C. (Eng.) 436, Buckley, L. J., said: "Jurisdiction under the act arises only if a question arises upon some one of three subject-matters: firstly, liability to pay compensation; secondly, amount of compensation; and, thirdly, duration of compensation."

18 The county court judge has jurisdiction where the correspondence between the parties shows that although the employer agreed that the workman was entitled to compensation, they could not agree upon the amount thereof. Brooks v. Knowles (1911) 5 B. W. C. C. (Eng.) 15.

Where the applicant filed an application for compensation at 12s. 6d., the employer admitting liability and present total incapacity and submitting to an award of 10s. per week during total disability, the amount payable during partial incapacity to be settled thereafter, there was a dispute at the time of application so as to give the county court judge jurisdiction, although the workman had before the hearing agreed to accept 10s. compensation but objected to the limitation to total incapacity. Higgins v. Poulson (1911) 5 B. W. C. C. (Eng.) 66.

19 Arbitration is competent although the employers admitted liability under the act and there was no dispute as to the compensation, but the employers insisted that the workman sign a receipt which provided that the payment admitted liability only for compensation to date of payment, and further liability, if any, was to be determined week by week. Summerlee Iron Co. v. Freeland [1913] A. C. (Eng.) 221, 82 L. J. P. C. N. S. 102, 108 L. T. N. S. 465, 29 Times L. R. 277, 57 Sol. Jo. 281, [1913] W. N. 34, [1913] W. C. & Ins. Rep. 302,

An appeal from a decision of the county court judge dismissing an application for arbitration upon the ground that no question has arisen cannot be sustained upon the ground that the correspondence between the parties showed that a difference had arisen which was not raised 6 B. W. C. C. 255, [1913] S. C. (H. L.) 3. Where the employer raises the question of duration of incapacity by his answer, he cannot be heard to say that there was no dispute at the time of the application. Barron v. Carmichael (1912) 5 B. W. C. C. (Eng.) 436.

An application for arbitration is competent where, although the employers were paying full compensation and had made no threat to stop payment, they had barred the recording of a memorandum of agreement by a receipt signed by the applicant which provided that the payment should continue only while the employers were of the opinion that the incapacity continued. Brown v. Hunter (1912) 49 Scot. L. R. 695, 5 B. W. C. C. 589.

A question has arisen for arbitration under § 1 (3) of the act where the employer, although admitting liability to pay compensation during total incapacity, refuses to admit liability to pay compensation in event of partial incapacity and the workman declines to accept an admission limited to total incapacity_only. Cooper v. Wales (1915) 31 Times L. R. (Eng) 506.

20 Where the employer was paying full compensation, the workman was not entitled to arbitration merely because a question might thereafter arise as to whether the compensation which was being made may or may not have to be reviewed in accordance with condition of health and other circumstances affecting the workman. Payne v. Fortescue [1912] 3 K. B. (Eng.) 346, 81 L. J. K. B. N. S. 1191, 107 L. T. N. S. 136, 57 Sol. Jo. 81, [1912] W. N. 216, 5 B. W. C. C. 634.

No question for arbitration has arisen where the employers have admitted liability and paid full compensation up to the day of the application for arbitration, although the employers refused to agree to pay compensation during partial incapacity. Bedwell v. London Electric R. Co. (1914) 7 B. W. C. C. (Eng.) 685.

There is no question for arbitration where incapacity and liability are admitted and full compensation being paid, although the employer refused to make any agreement as to payment after total incapacity had ceased, but was willing to sign an agreement that the amount of compensation payable during partial incapacity was to be settled afterward. Sampson v. General Steam Nav. Co. [1914] W. C. & Ins. Rep. (Eng.) 36, 7 B. W. C. C. 107.

Section 1, subsec. 3, with reference to arbitration, refers only to questions between the undertaker and the workman; the right of indemnity given by 4 in favor of the undertaker against a third person who would have been liable but for the provisions of § 4 may be enforced in the high court.22

h. Recovery of compensation where action for damages has failed (8 1, subsec. 4).

The cases construing the provision relative to the alternative remedies open to an injured workman may be read with profit in connection with the cases construing this subsection. See ante, 72. As to election to come under the American statutes, see post, 219.

As to exclusiveness of remedy furnished by American statutes, see post, 223.

This subsection is applicable where it is found that no cause of action at common law and under the act of 1880 was stated by the averments of the com

21 Wooder v. Lush [1914] 7 B. W. C. C. (Eng.) 673.

22 Evans v. Cook [1905] 1 K. B. (Eng.) 53, 74 L. J. K. B. N. S. 95, 92 L. T. N. S. 43, 21 Times L. R. 42, 56 Week. Rep. 81. 23 Henderson v. Glasgow (1900) 2 Sc. Sess. Cas. 5th series, 1127, 37 Scot. L. R. 857, 8 Scot. L. T. 118.

In Ivenhoe Gold Corp. v. Symonds (1907) 4 Austr. C. L. R. 642, it was held that the section was applicable to all cases in which the plaintiff's action failed provided he was otherwise entitled to recover under the statute and consequently applied to a case where the successful defense was a confession and avoidance.

24 By bringing an action at common law or under the employers' liability act of 1880 a workman exercises his option and the matter is at an end unless he has expressly brought himself within the provisions of § 1, subsec. 4; he cannot after having failed in his law action launch proceedings under the compensation act in respect to the same injuries. Edwards v. Godfrey [1899] 2 Q. B. (Eng.) 333, 68 L. J. Q. B. N. S. 666, 80 L. T. N. S. 672, 15 Times L. R. 365, 47 Week. Rep. 551. See also Quinn v. Brown (1906) 8 Sc. Sess. Cas. 5th series (Scot.) 855; M'Gowan v. Smith [1906-07] S. C. (Scot.) 548.

25 Greenwood v. Greenwood (1907; Div. Ct.) 97 L. T. N. S. (Eng.) 771, 24 Times L. R. 24, 1 B. W. C. C. 247.

Where a workman has failed in an action at law to recover damages on the ground that the master was not guilty of negligence, the trial court is the only court in which compensation may be assessed.

failed in an action to recover damages is desirous of having compensation for his injury assessed under the act, he must follow the procedure prescribed by this subsection, and must apply, then and there, to the judge trying the action, for an assessment of compensation; he cannot at a subsequent date initiate independent proceedings against his employer by a request for arbitration under the act.24 If a workman fails in an action to recover damages for the injury, the trial court is the proper tribunal to assess compensation.2 And it is only when the action at law is commenced within six months after the injury that compensation may be awarded upon the failure of the law action.26

25

A workman who brings an action at common law and recovers a judgment in the trial court is not barred from subsequently applying for compensation upon his judgment being reversed by a higher court, because he did not apply at the trial court for the assessment of compensation.27 And the fact that a workman whose action under the employers' liability act has been wrongfully dismissed McCormick v. Kelliher Lumber Co. (1912) 17 B. C. 422, 6 B. W. C. C. 947.

Upon the failure of an action under the employer's liability act of 1880, for an injury compensation for which has been assessed under the compensation act, the court before whom the action was tried has power to deal with the costs of the action including the proceedings for the assessment of compensation. Cattermole v. Atlantic Transport Co. [1902] 1 K. B. (Eng.) 204, 50 Week. Rep. 129, 85 L. T. N. S. 513, 18 Times L. R. 102, 71 L. J. K. B. N. S. 173, 66 J. P. 4.

26 Cribb v. Kynoch [1908] 2 K. B. (Eng.) 551, 77 L. J. K. B. N. S. 1004, 99 L. T. N. S. 216, 24 Times L. R. 736, 52 Sol. Jo. 581, 1 B. W. C. C. 43.

An application for the assessment of compensation after an unsuccessful action for damages against the employer is incompetent where the action was not raised within six months after the accident. Durkin v. Distillers Co. [1914; L. O.] W. C. & Ins. Rep. (Eng.) 28, as cited in Law Reports Current Dig. 1914, col. 808.

27 McCormick V. Kelliher Lumber Co. (1913; B. C.) 7 B. W. C. C. 1025. The court said: "Here the judgment at common law was in favor of the plaintiff; and although the judgment was reversed by this court, the effect of that, as I view it, would be to place the parties back in the position they would have been in at the trial if the trial judge had given the judgment which this court held should have been given. The plaintiff would then have been in a position to ask for an assessment of compensation."