982, 80 L. J. K. B. N. S. 728, 104 L. T. N. S. 298, 4 B. W. C. C. 148; Melville v. M'Carthy (Ir.) [1913] W. C. & Ins. Rep. 353, cited in Law Reports Current Dig. 1912, col. 725; Judd v. Metropolitan Asylums Board [1912] W. C. Rep. (Eng.) 220, 5 B. W. C. C. 420; Bruno v. International Coal & Coke Co. (1913; Alberta) 7 B. W. C. C.

1033.

87

Absence from the United Kingdom has been held a sufficient excuse in a few as has serious sickness immedcases,8 iately following the injury.8 88 The conduct of the employer may be such that he will be held to have waived the giving of the notice,89 or any defects

2 Q. B. (Eng.) 240, 82 L. T. N. S. 346, 69 L. J. Q. B. N. S. 551, 64 J. P. 420, 48 Week. Rep. 533, 16 Times L. R. 327.

Where a workman engaged in lifting heavy cases felt a severe strain internally, and informed his foreman that an old rupture had come down, and that he would consult a doctor, and having been informed by the doctor that he would have to undergo an operation, he so informed his employer, who agreed to make weekly pay

87 Failure to give notice for over two years may be found to be excusable where the workman was sick during that period, and was in a foreign country, spending most of the time in hospitals. Dight v. Craster Hall [1913] 3 K. B. (Eng.) 700, 82 L. J. K. B. N. S. 1307, 109 L. T. N. S. 200, 29 Times L. R. 676, [1913] W. N. 259, 6 B. W. C. C. 674.

The failure to give prompt notice of the accident is excusable where the applicant was absent from the United Kingdom at the time, and the delay after her return, which was accomplished as soon as practicable, was occasioned by legal advice to the effect that her time to give notice had expired. Smith v. Pearson (1909; C. C.) 2 B. W. C. C. (Eng.) 468.

The finding of the county court judge that a workman's failure to make a claim within six months was "due to" his absence from the United Kingdom, instead of finding that it was "occasioned by," does not invalidate his finding. Dight v. Craster Hall (Eng.) supra.

88 The fact that the applicant had been eight weeks in the hospital is a reasonable excuse for not giving notice within six weeks. Ex parte Dunn (1911) 28 W. N. New So. Wales, 9.

89 An agreement arrived at between the parties shortly after the accident, that there is a statutory liability on the employer to pay compensation, the amount of compensation being left open for future settlement, is evidence upon which the judge or arbitrator may properly find that the employer is estopped from setting up the defense that the request for arbitration was not filed within six months of the accident. Having allowed the six months to expire while the negotiations were still proceeding, the employer cannot then turn round and say that the time for claiming compensation has gone by. Wright v. Bagnall [1900]

may find that the employer had been informed of the accident as soon as possible, and was not prejudiced by want of or any defect or inaccuracy in the notice, although he had not been given a written notice. Ralph v. Mitchell [1913] W. C. & Ins. Rep. (Eng.) 501, 6 B. W. C. C. 678.

Employers who have paid full compensation for more than four months are thereafter estopped from claiming that notice of the accident was not given as soon as possible, and that they were prejudiced thereby. Turnbull v. Vickers (1914) 7 B. W. C. C. (Eng.) 396.

In Luckie v. Merry (1915) 31 Times L. R. (Eng.) 466, [1915] W. N. 243, 59 Sol. Jo. 544, it was held that the county court judge may find that there was reasonable excuse for failure to give notice of an accident, where the injured workman had been for seventeen years in the employment of the respondent as a horse keeper, and, upon crushing his fingers, went to the employer, who told him to potter in the factory until he was better, which he did, and for more than six months remained in the employment, doing his old work and receiving his old wages, when he was discharged for reasons not connected with the accident. The master of the rolls distinguished two Irish cases which were cited by the county court judge as authority for holding that there was no reasonable excuse shown. The first of these cases was Healy v. Galloway, 41 Ir. Law Times, 5, which was a case under the old law, which did not provide for a plea of reasonable excuse. The decision of the court in this case was that the mere fact that the employer had paid wages after the accident was not such a circumstance as amounted to a waiver by the employer of the necessity of making a claim, or, to put it in another way, was not a foundation for an estoppel to prevent the master from asserting that no claim had been made. The Healy Case was cited in the second case mentioned, Lynch v. Lansdowne, 48 Ir. Law Times, 89, as authority for the proposition that mere payment of wages from an employer to an injured workman after the latter has been injured, is not

therein;90 but the mere payment of some compensation is not such a waiver as a matter of law.91

V. Substitution of scheme approved by friendly society for provisions of the act (§ 3).

a. Text of $ 3.

Section 3. (1) If the registrar of friendly societies, after taking steps to ascertain the views of the employer and workmen, certifies that any scheme of compensation, benefit, or insurance for the workmen of an employer in any employment, whether or not such scheme includes other employers and their workmen, provides scales of compensation not less favorable to the workmen and their dependents than the corresponding scales contained in this act, and that, where the scheme provides for contributions by the workmen, the scheme confers benefits at least equivalent to those contributions, in addition to the benefits to which the workmen would have been entitled under this act, and that a majority (to be ascertained by ballot) of the workmen to whom the scheme is applicable are in favor of such scheme, the employer may, whilst the certificate is in force, contract with any of his workmen that the provisions of the scheme shall be substituted for the provisions of this act, and thereupon the employer shall be liable only in accordance with the scheme; but, save as aforesaid, this act shall apply notwithstanding any consufficient to enable the court to draw the inference that the workman had reasonable cause, within the meaning of the statute, for not making the claim within six months from the date of the accident. The master of the rolls, in Luckie v. Merry, stated that the Healy Case could not be authority upon this point because, in that case, there was no question of reasonable cause whatsoever. 90 Employers, by paying compensation for seven weeks, waived any defect in the notice of accident. Davies v. Point of Ayr Collieries (1909) 2 B. W. C. C. (Eng.) 157. 91 The mere fact that the employer has made weekly payments to a workman is not such evidence of an admission of liability and of an agreement to pay compensation as will enable the workman to commence proceedings under the act after the expiration of six months from the accident, where the employer took a receipt which stated that the money was received on account of compensation which might be or become due to the workman under the act. Rendall v. Hill's Dry Docks & Engineering Co. [1909] 2 Q. B. (Eng.) 245, 69 L. J. Q. B. N. S. 554, 64 J. P. 451, 48 Week. Rep. 530, 82 L. T. N. S. 521, 16

tract to the contrary made after the commencement of this act.

(2) The registrar may give a certificate, to expire at the end of a limited period of not less than five years, and may from time to time renew, with or without modifications, such a certificate, to expire at the end of the period for which it is renewed.

(3) No scheme shall be so certified which contains an obligation upon the workmen to join the scheme as a condition of their hiring, or which does not contain provisions enabling a workman to withdraw from the scheme.

(4) If complaint is made to the registrar of friendly societies, by or on behalf of the workmen of any employer, that the benefits conferred by any scheme no longer conform to the conditions stated in subsection (1) of this section, or that the provisions of such scheme are being violated, or that the scheme is not being fairly administered, or that satisfactory reasons exist for revoking the certificate, the registrar shall examine into the complaint, and, if satisfied that good cause exists for such complaint, shall, unless the cause of complaint is removed, revoke the certificate.

(5) When a certificate is revoked or expires, any moneys or securities held for the purpose of the scheme shall, after due provision has been made to discharge the liabilities already accrued, be distributed as may be arranged between the employer and workmen, or as may be determined by the registrar of friendly Times L. R. 368, distinguishing Wright v. Bagnall [1900] 2 Q. B. (Eng.) 240, 82 L. T. N. S. 346, 69 L. J. Q. B. N. S. 551, 64 J. P. 420, 48 Week. Rep. 533, 16 Times L. R. 327, supra.

The fact that an employer for a period of about six months voluntarily paid an injured workman a sum in excess of what he would have had to pay under the act does not bar him from pleading the omission to begin proceedings within the prescribed six months, where nothing at all had been said between the parties as to the act. O'Neill v. Motherwell [1906-07] S. C. (Scot.) 1076.

Employers are not estopped from claiming that the act is inapplicable by the fact that shortly after the accident they wrote to the workman's daughter that if she would forward them a certificate of the doctor attending him, stating the nature of the injuries and the probable period of injury, they would pay him whatever was due him under the act during his illness, dating one week from the day of the accident, and that they did not so pay him for a period of about six months. Ross v. Smith (1909) So. Austr. L. R. 128.

societies in the event of a difference of opinion.

(6) Whenever a scheme has been certified as aforesaid, it shall be the duty of the employer to answer all such inquiries and to furnish all such accounts in regard to the scheme as may be made or required by the registrar of friendly

societies.

(7) The chief registrar of friendly societies shall include in his annual report the particulars of the proceedings of the registrar under this act.

(8) The chief registrar of friendly societies may make regulations for the purpose of carrying this section into effect.

[The changes in § 3 are for the most part mere matters of detail.]

b. Construction of this section. The provision in the statute against contracting out of the statute refers only to contracts as to future injuries.92 A penal clause in an agreement whereby a workman is to lose all rights to compensation unless he insists in an application for examination by a medical referee under certain circumstances is void under 3, subsec. 1 of the act.93 A contract, under § 3, need not be in writing.9

94

A workman who has agreed to accept the provisions of a duly certified scheme cannot resort to the act in any way.95

92 Ryan v. Hartley [1912] 2 K. B. (Eng.) 150, 81 L. J. K. B. N. S. 666, 106 L. T. N. S. 702, [1912] W. C. R. 236, [1912] W. N. 115, 5 B. W. C. C. 407.

93 British & S. A. Steam Nav. Co. v. Neil (1910) 3 B. W. C. C. (Eng.) 413.

94 Berry v. Canteen & Mess. Co-op. Soc. (1910) 3 B. W. C. C. (Eng.) 449.

95 Godwin v. Lords Comrs. of Admiralty [1913] A. C. (Eng.) 638, 82 L. J. K. B. N. S. 1126, 109 L. T. N. S. 428, 29 Times L. R. 774, [1913] W. N. 267, 6 B. W. C. C. 788, affirming Court of Appeal [1912] 2 K. B. 26, 81 L. J. K. B. N. S. 532, 106 L. T. N. S. 136, 28 Times L. R. 229, [1912] W. C. Rep. 49, 5 B. W. C. C. 229, 56 Sol. Jo. 307, [1912] W. N. 45.

A workman who has come in under a scheme, duly certified under § 3 of the act, and has signed an agreement, is outside of the provisions of the act altogether, and cannot subsequently obtain compensation from the employer, although the scheme was terminated in consequence of its not being recertified under the act. Howarth v. Knowles [1913] 3 K. B. (Eng.) 675, 82 L. J. K. B. N. S. 1325, 109 L. T. N. S. 278, 29 Times L. R. 667, 57 Sol. Jo. 471, [1913] W. N. 237, 6 B. W. C. C. 596.

96 A workman who has signed an agreement to accept compensation certified by

In such a case the county court judge has no jurisdiction of the matter.96 And no appeal lies to the court from the decision of a committee appointed under a scheme formed by the employer and accepted by the workman, where all the requirements of the act had been fulfilled, and the scheme provided that the committee had power to determine all claims arising under the scheme.97 But the county court judge is not ousted if the scheme has not been properly certified.98 And a minor who has assented to a duly certified contracting-out scheme is not bound to accept payment of amount given by such scheme if it is not beneficial to him.99

Where a scheme purports to be intended as a substitute for the act, the word "accident" in the scheme will be construed as having the same meaning as in the act, and to include disablement from disease described in § 8 of the act.1

The employer is not entitled to deduct from the workman's wages a contribution to a scheme of compensation where the original scheme to which the workman had consented had expired by lapse of time, and the new scheme certified by the registrar of friendly societies had not been agreed to by the workman.2

As to the recertifying of schemes under the act of 1897, so as to render them valid under the act of 1906, see post 128. the chief registrar of friendly societies is outside the provisions of the act altogether. Horn v. Lords Comrs. of Admiralty [1911] 1 K. B. (Eng.) 24, 80 L. J. K. B. N. S 278, 103 L. T. N. S. 614, 27 Times L. R 84, 4 B. W. C. C. 1.

97 Allen v. Great Eastern R. Co. [1914] 2 K. B. (Eng.) 243, 110 L. T. N. S. 498, [1914] W. N. 33, 83 L. J. K. B. N. S. 898. [1914] W. C. & Ins. Rep. 388.

98 Where a duly certified scheme provided that the funds were to be managed in accordance with rules not inconsistent with the scheme, to be framed from time to time, which rules had not been certified, and it was found as a matter of fact that the rules were inconsistent with the scheme, the scheme, as modified by the rules, cannot be said to be a properly certified scheme. Moss v. Great Eastern R. Co. [1909] 2 K. B. (Eng.) 274, 78 L. J. K. B. N. S. 1048, 100 L. T. N. S. 747, 25 Times L. R. 466, 2 B. W. C. C. 168.

99 Morter v. Great Eastern R. Co. (1908; C. C.) 126 L. T. Jo. (Eng.) 171, 2 B. W. C. C. 480.

1 Leaf v. Furze (Div. Ct.) [[1914] 3 K B. (Eng.) 1068, 83 L. J. K. B. N. S. 1822.

2 Wilson v. Ocean Coal Co. (1905) 21 Times L. R. (Eng.) 621, affirming 21 Times L. R. 195.