be held to have undertaken to execute the work on every street radiating from the place where the work was being done over which the subcontractor might be minded to take his cart in drawing away the refuse from the street where the paving was being done.18

f. Work "ancillary or incidental" to the trade or business of the princi pal.

The most notable change in § 4, as it appears in the act of 1906, is the omission of the second paragraph of the original act, which provided that the act was not applicable to any work

has undertaken to execute the work."

Under 4, subsec. 4, a principal contracting to do certain work in connection with the paving of a street cannot

14 The dependents of a laborer engaged | to repair a roof of a house in which drapery, grocery, and hardware business is carried on, and who was killed while so employed, are entitled to compensation, since he was employed for the purpose of the trade. Johnston v. Monasterevan General Store Co. [1909] 2 I. R. 108, 42 Ir. Law Times, 268, 2 B. W. C. C. 183.

The work of putting tiles on the roof of a farmer's granary is for the purpose of the farmer's business. Blyth v. Sewell (1909; C. C.) 126 L. T. Jo. (Eng.) 552, 2 B. W. C. C. 476.

15 Cotter v. Johnson (1911) 45 Ir. Law Times, 259, 5 B. W. C. C. 568.

16 Hockley v. West London Timber & Joinery Co. [1914] 3 K. B. (Eng.) 1013, 83 L. J. K. B. N. S. 1520, [1914] W. N. 330, 58 Sol. Jo. 705.

17 Where a farmer arranged with the applicant, a young lad, for the services of a threshing machine belonging to the latter's father, who was to be paid 20 s. out of 25 s., and in the course of the work the applicant was injured, he is not entitled to compensation, there being no "work undertaken by the principal." Walsh v. Hayes (1909) 43 Ir. Law Times, 114.

Where the respondents, who were green grocers, entered into a joint venture with a billiards saloon keeper for the erection of a skating rink as a speculation, and employed a contractor to do the part of the work, and the servant of the contractor was injured, it cannot be said that the work on which the applicant was employed was work "undertaken" by the respondents as principals within the meaning of § 4 of the

to" the trade or business carried on by the undertaker. The decisions as to the scope of the phrase quoted are not consistent.19

the barge owner. Hayes v. Thompson [1913] W. C. & Ins. Rep. (Eng.) 161, 6 B. W. C. C. 130.

The work of unloading sulphur from a barge, which was consigned to a firm of drug grinders, is not work undertaken by the drug grinders, where they declined to do this work themselves, as they had previously attempted it, and found that their own men were not suitable for such work. Bobbey v. Crosbie (1915) 84 L. J. K. B. N. . S. (Eng.) 856, 112 L. T. N. S. 900, 8 B. W. C. C. 236.

A municipal corporation which purchased land for the extension of its market, and sold an old mill on the premises, to be torn down and carried away, is liable as undertaker to a workman employed by the purchaser of the mill, who was injured in the work of demolition. Mulrooney v. Todd [1909] 1 K. B. (Eng.) 165, 78 L. J. K. B. N. S. 145, 100 L. T. N. S. 99, 73 J. P. 73, 25 Times L. R. 103, 53 Sol. Jo. 99 [1908] W. N. 242.

A company who purchased a lighter in England, and engaged a man to navigate it to Cape Verd for them and to provide and pay for the crew, is liable for injuries to one of the latter during the voyage. Dittmar v. The V. 593 [1909] 1 K. B. (Eng.) 389, 78 L. J. K. B. N. S. 523, 100 L. T. N. S. 212, 25 Times L. R. 188.

18 Andrews v. Andrews [1908] 2 K. B. (Eng.) 567, 77 L. J. K. B. N. S. 974, 99 L. T. N. S. 214, 24 Times L. R. 709, 1 B. W. C. C. 264.

19 The following operations have been held to be "merely ancillary" to the business of the defendant:

The erection of a station building for a railway company by a contractor. Pearce v. London & S. W. R. Co. [1900] 2 Q. B. (Eng.) 100, 69 L. J. Q. B. N. S. 683, 48 Week. Rep. 599, 82 L. T. N. S. 473, 16 Times L. R. 336.

The work of putting a new driving wheel

a. Text of § 5.

Section 5. (1) Where any employer has entered into a contract with any insurers in respect of any liability under this act to any workman, then, in the event of the employer becoming bankrupt, or making a composition or arrangement with his creditors, or, if the employer is a company, in the event of the company having commenced to be wound up, the rights of the employer against the insurers as respects that liability shall, notwithstanding anything in the enactments relating to bankruptcy and the winding up of companies, be transferred to and vest in the workman, and upon any such transfer the insurers shall have the same rights and remedies and be subject to the same liabilities as if they were the employer, so, however, that the insurers shall not be under any greater liability to the workman than they would have been under to the employer.

(2) If the liability of the insurers to the workman is less than the liability of the employer to the workman, the into a steam engine belonging to a cotton factory, where such work is done under contract by a firm of engineers. Wrigley v. Bagley [1901] 1 K. B. (Eng.) 780, 84 L. T. N. S. 415, 70 L. J. K. B. N. S. 538, 65 J. P. 372, 49 Week. Rep. 472, affirmed in [1902] A. C. 299, 71 L. J. K. B. N. S. 600, 66 J. P. 420, 50 Week. Rep. 656, 86 L. T. N. S. 775, 18 Times L. R. 559.

The fixing of an iron roof by a subcontractor for a builder, the evidence showing that this was no part of the latter's business. Bush v. Hawes [1902] 1 K. B. (Eng.) 216, 71 L. J. K. B. N. S. 68, 85 L. T. N. S. 507, 66 J. P. 260, 50 Week. Rep. 311.

The erection by a contractor of coal-hauling machinery at the power station of an electric railway company. Brennan v. Dublin United Tramways Co. [1900] 2 I. R. (Ir.) 241.

The erection by a contractor of a retaining wall to protect the track of a railway. Dundee & A. Joint R. Co. v. Carlin (1901) 3 Sc. Sess. Cas. 5th series, 843, 38 Scot. L. R. 635, 9 Scot. L. T. 55 (servant run over by train).

The work of a man employed by a window cleaning company, who was injured while cleaning the windows of the defendant, a firm of tailors. Dempster v. Hunter (1902) 4 Sc. Sess. Cas. 5th series, 580, 39 Scot. L. R. 395, 9 Scot. L. T. 450.

The following operations have been held not to be "merely ancillary" to the business of the defendant:

Work done by a subcontractor for a firm

(3) There shall be included among the debts which, under § 1 of the preferential payments in bankruptcy act 1888, and 4 of the preferential payments in bankruptcy (Ireland) act, 1889, are, in the distribution of the property of a bankrupt and in the distribution of the assets of a company being wound up, to be paid in priority to all other debts, the amount, not exceeding in any individual case £100, due in respect of any compensation the liability wherefor accrued before the date of the receiving order or the date of the commencement of the winding up; and those acts and the preferential payments in bankruptcy amendment act, 1897 shall have effect accordingly. Where the compensation is a weekly payment, the amount due in respect thereof shall, for the purposes of this provision, be taken to be the amount of the lump sum for which the weekly payment could, if redeemable, be redeemed if the employer made an application for that purpose under the first schedule to this act.

(4) In the case of the winding up of a company within the meaning of the stannaries act 1887, such an amount as aforeof building contractors, who habitually made contracts for the demolition of old buildings on the site of which new ones were to be constructed. Knight v. Cubitt [1902] 1 K. B. (Eng.) 31, 50 Week. Rep. 113, 18 Times L. R. 26, 71 L. J. K. B. N. S. 65, 66 J. P. 52, 85 L. T. N. S. 526.

The erection of signals for a new railway siding by a contractor. Burns v. North British R. Co. (1900) 2 Sc. Sess. Cas. 5th series, 629, 37 Scot. L. R. 448, 7 Scot. L. T. 408 (workman was run over).

Work done in the course of his employment by a servant of a contractor for the collection and delivery of goods conveyed by a railway for a through rate. Greenhill v. Caledonian R. Co. (1900) 2 Sc. Sess. Cas. 5th series, 736, 37 Scot. L. R. 524, 7 Scot. L. T. 458 (servant injured while transferring a barrel from a lorry to a goods train).

Carting work done by the servant of a firm of contractor, who were under contract to do all the carting work in connection with a factory. Bee v. Ovens (1900) 2 Sc. Sess. Cas. 5th series, 439, 37 Scot. L. R. 328, 7 Scot. L. T. 362 (factory owner held liable).

Work done by a carter in the employ of a railway company, while he was engaged in transporting the goods of the defendants, a firm of sausage makers, to a station on the railway. M'Govern v. Cooper (1902) 4 Sc. Sess. Cas. 5th series, 249, 39 Scot. L. R. 102, 9 Scot L. T. 270.

Appeals from orders of the county court judge relative to payment to the workmen by insurance companies in which the bankrupt employer was insured lie to the divisional court, and not to the court of appeal; 26 and an appeal from the decision of the county court judge, awarding a lump sum to an injured workman against the receiver or liquidator of the employer, does not lie to the court of appeal.27

In the cases cited in the subjoined note, all of which arose out of the same transaction, the court discusses a number of questions involving § 6 of the British Columbia workmen's compensation act of 1902, which is similar to ý 5 of the English act of 1897, with the exception that jurisdiction is given to a judge of the supreme court, instead of to the judge of the county court.28

VIII. Liability of third person whose negligence causes the injury (§ 6).

a. Text of $ 6.

38.

27 Homer v. Gough [1912] 2 K. B. (Eng.) 303, 81 L. J. K. B. N. S. 261, 105 L. T. N. S. 732, 5 B. W. C. C. 51.

28 In Disourdi v. Sullivan Group Min. Co. (1909) 14 B. C. 256, it is held that this provision of the act cannot be invoked, unless the insurer has admitted his liability, or has been found by a competent tribunal to be liable. In this case the insurer was proposing to contest his liability. In Disourdi v. Sullivan Group Min. Co. (1909) 14 B. C. 273, the application of the workman for an order that the employer and the insurers proceed to the trial of an issue with him was refused on the ground that any right which he might have against the insurers must be decided in an action commenced in the ordinary

way.

In Disourdi v. Sullivan Group Min. Co. (1910) 15 B. C. 305, on the ground that

(1) The workman may take proceedings both against that person to recover damages, and against any person liable to pay compensation under this act, for such compensation, but shall not be entitled to recover both damages and compensation; and

(2) If the workman has recovered compensation under this act, the person by whom the compensation was paid, and any person who has been called on to pay an indemnity under the section of this act relating to subcontracting, shall be entitled to be indemnified by the person so liable to pay damages as aforesaid; and all questions as to the right to and amount of any such indemnity shall, in default of agreement, be settled by action, or, by consent of the parties, by arbitration under this act. [Section 6 of the original act provided as follows:

[Section 6 of the original act provided compensation is payable under this act was caused under circumstances creating a legal liability in some person other than the employer, to pay damages in respect thereof, the workman may, at his option, proceed, either at law against that person to recover damages, or against his employer for compensation under this act, but not against both; and there was no privity of contract between the workman and the insurer of the employing company, it was held, after the company had become insolvent, that he could not, by any proceedings taken in his own name, establish the liability of the insurer to the company, and that the liability must be ascertained by the liquidator of the company. The decision of Macdonald, C. J. A., proceeded upon the ground that the liability of the insurer could not be ascertained in such an action as he was maintaining. "The creation of the charges alone, without reference to that part of the section which gives a remedy for enforcing it, effects the subrogation mentioned in the English cases." The view expressed by Irving, J. A., was that the liability of the insurers could be determined only in an action in which the liquidator of the insolvent company should be plaintiff. Martin, J. A., was of opinion that an action in the supreme court could not be deemed an application to a “judge of the supreme court," in the sense of the statutory provision.

en

In the same cases an action to obtain a declaration that the workman was titled to a first charge on the moneys to which his employer was entitled, and for an order for payment, was held to have been rightly dismissed. The dismissal by the trial judge was rested on the ground that there was no privity of contract between the workman and the insurers.

if compensation be paid under this act, the employer shall be entitled to be indemnified by the said other person.]

b. Joint liability of employer and third person.

As to liability of third person whose negligence caused the injury under the American statutes, see post, 225.

The effect of § 6, subsec. 1 of the act, is that although an injured workman may proceed against either his employer or the person liable for damages, there cannot be a recovery both of compensation and of damages, and the recovery of one terminates the right to proceed for the other.29 So a workman who has obtained an award for the payment of compensation cannot subsequently maintain an action against the third person whose negligence caused the accident.30 And the father of a workman who for three years had received full compensation from his employers, and who subsequently died as the result of his injuries, cannot thereafter bring an action based on fault, against a third person

29 Where a workman made no claim and took no proceedings under the act, but merely reported the accident in the ordidary way, and was informed that he was entitled to compensation, and afterwards received the maximum amount payable under the act, he will be deemed to have "recovered" compensation, and will be barred from proceeding against the person liable in damages for his injury. Mahomed v. Maunsell (1907; C. C.) 124 L. T. Jo. (Eng.) 153, 1 B. W. C. C. 269.

30 Tong v. Great Northern R. Co. (1902; Div. Ct.) 86 L. T. N. S. (Eng.) 802, 66 J. P. 667, 18 Times L. R. 566.

31 Gray v. North Britain R. Co. (1914) 52 Scot. L. R. 144, 8 B. W. C. C. 373.

32 Woodcock v. London & N. W. R. Co. [1913] 3 K. B. (Eng.) 139, 82 L. J. K. B. N. S. 921, 109 L. T. N. S. 253, 29 Times L. R. 566, [1913] W. N. 179, [1913] W. C. & Ins. Rep. 563, 6 B. W. C. C. 471. This action was brought in the divisional court. Rowlatt, J., said: "The right to recover damages in respect of a personal injury is one indivisible right, and when the statute says the workman is not entitled to recover damages, unless it divides the right to recover damages,-it must mean that he is barred of his remedy for any common-law damages which flow from the injury which he has traced to the negligence of the defendants. I do not think that the statute allows any other than that interpretation. The present case in volves a curious position. It is not without its hardship to the plaintiff, but I am bound to say that I do not see any ground for doubting that in law he must fail in the claim which he makes against the railroad company."

whose negligence was alleged to have caused the injury.31 Where a workman in a colliery also carried on a small farm, and while occupied as a collier was injured by the negligence of a third person, and recovered compensation from his employer, he cannot thereafter bring an action for damages against the third party and recover damages for injuries which he has suffered as a farmer, although such damages were not included in the compensation.32

The acceptance of payments by the injured workman from a person other than the employer, who was alleged to be liable for negligence, although no action has been commenced and such liability is not admitted, precludes the workman, under § 6, subsec. 1, from obtaining compensation from the employer. And the fact that a workman expressly reserves his right to compensation does not affect the result.34 But a servant who, having received one payment under the act without qualification, which payment was offered voluntarily by the employer, refused to sign any

33

33 A workman is precluded from obtaining compensation from his employer under the act, when he has made a claim for compensation against a person other than his employer, alleged to be liable for negligence, and has received various payments in satisfaction of his claim, although he has not resorted to legal proceedings and no legal liability is admitted. Page v. Burtwell [1908] 2 K. B. (Eng.) 758, 77 L. J. K. B. N. S. 1061, 99 L. T. N. S. 542.

34 Where an injured workman has made a claim for damages at common law against a person other than his employers, and, without having taken legal proceedings, has received a payment in settlement of his claim, he is barred from claiming compensation against his employers; and this result is not prevented by a clause in the receipt given by him, reserving a right to claim compensation from his employers. Mulligan v. Dick (1903) 6 Sc. Sess. Cas. 5th series, 126, 41 Scot. L. R. 77, 11 Scot. L. T. 433.

A workman in the employment of carting contractors, who was injured while employed under a contract between the contractors and a railway company, and who, under reservation of all claims he might have for compensation against other parties, asked for and accepted from the contractors a payment in full of all claims against them, under any statute or at common law, in respect of the injury, is barred by the terms of § 6 from thereafter claiming compensation under the act from the undertakers. Murray v. North British R. Co. (1904) 6 Sc. Sess. Cas. 5th series, 540, 41 Scot. L. R. 383, 11 Scot. L. T. 746.