Sec. 43 (1)

The question of serious and wilful misconduct under this Section most frequently arises in connection with the disobedience by the workman of rules and regulations made for his protection under the Factory and Workshop Act, 1901.1

PROVISIONS FOR THE PROTECTION OF THE EMPLOYER WHO LAST EMPLOYED THE WORKMAN.-The compensation in respect of industrial diseases is recoverable from the employer "who last employed the workman," during the twelve months previous to the disablement or suspension, in the employment to the nature of which the disease was due. But although such employer may have no defence to the claim by the workman, he may be able to shift his liability on to other shoulders, or make others bear a fair share of it.

By Sub-sec. (1) (c) (ii), if the last employer alleges that the disease was contracted whilst the workman was in the employment of some other employer, he may bring in such other employer as a third party, and if the allegation is proved, that other employer will be the one

from whom the compensation is recoverable," provided that the workman was employed by him during the twelve months previous to the date of disablement, suspension, or death. See Dean v. Rubian Pottery Co., Ltd. (p. 457), as reported in 7 B. 209, at p. 219, where it was pointed out by Cozens-Hardy, M.R., that under this Sub-section the employment must have been within the twelve months. In the same case, Evans, P., said, on p. 221, that Sub-secs. (c) (i) and (ii) applied only to diseases contracted at once and not to gradual diseases. See also Archibald Russell, Ltd. v. Docherty (p. 467).

By Sub-sec. (1) (c) (iii), where the disease has been contracted by a gradual process, all the employers who during the previous twelve months have employed the workman in the employment to the nature of which the disease was due, are liable to make to the last employer "such contributions as, in default of agreement, may be determined in the arbitration under this Act for settling the amount of compensation, or, if the amount of compensation is not in dispute, as may be determined by arbitration under this Act."

There is a broad distinction between Sub-sec. (1) (c) (ii) and Subsec. (1) (c) (iii). Under Sub-sec. (1) (c) (ii) the last employer may escape liability altogether, if he proves that the disease was in fact contracted whilst the workman was in the employment of some other employer whom he joins as a party to the arbitration. Under Subsec. (1) (c) (iii), although the last employer cannot altogether escape liability, he may make others share it with him, as, where the disease is one which is contracted by a gradual process, any other employers who employed the workman during the preceding twelve months in the employment to the nature of which the disease was due," are liable to contribute to the compensation payable by the last employer, without any proof that the disease was in fact contracted whilst in their employment. (Mallinder v. Moores and Sons, Ltd.-Booth and Moores, Third Parties [1912] 2 K. B. 124; 81 L. J. K. B. 714; 106 L. T. R. 487; 5 B. 362; [1912] W. C. Rep. 257.)

CONTRIBUTIONS BY PREVIOUS EMPLOYERS.-In cases where the disease was brought about by a gradual process, a convenient method of calculating the proportion of compensation to be paid by each employer is, in the absence of special circumstances showing that the risk was greater in one employment than in another, to divide the

11 Edw. 7. c. 22.

liability between the different employers according to the length of Sec. 43 (1) time the workman had been employed by each of them. But where there are special circumstances (e.g., where one of the employers claims the right to give evidence that the working arrangements at his works were so far superior to those of the other works in question, that it was not right that he should bear a rateable proportion of the total sum calculated on the weeks of employment by him), the Arbitrator must admit the evidence and do his best to properly apportion the liability between the several employers (Barron v. Seaton Burn Coal Co., Ltd. [1915] 1 K. B. 756; 84 L. J. K. B. 682; 112 L. T. R. 897; 31 T. L. R. 199; 8 B. 218; [1915] W. C. Rep. 132).

PROCEDURE FOR BRINGING IN OTHER EMPLOYER.-Rule 41 (p. 565) gives directions as to the course to be adopted when the employer desires to add any employer as a party to the arbitration pursuant to Sec. 43 (1) (c) (ii), or when he claims under Sec. 43 (1) (c) (iii) to be entitled to contribution from any other employer.

44.—(1) If the workman at or immediately before the date of such disablement or suspension as aforesaid, was employed in any process mentioned in the second column of the Third Schedule to this Act, and the disease contracted is the disease in the first column of that Schedule set opposite the description of the process, the disease, except where the certifying surgeon certifies that in his opinion the disease was not due to the nature of the employment, shall be deemed to have been due to the nature of that employment unless the employer proves the contrary.

Sec. 44 (1) Supplemental provisions as to industrial

diseases.

1906 Act, Sec. 8 (2).

Sec. 13.

(2) Where a workman claims to be suffering from and Sec. 44 (2) disabled by a disease to which the foregoing provisions 1923 Act, of this Part of this Act apply, the employer may agree with the workman that he is liable to pay compensation without requiring the workman to obtain the certificate of the certifying surgeon mentioned in those provisions, and thereupon the workman shall be entitled to compensation as for injury by accident from the date of the agreement or from such other date as may be agreed.

Any such agreement may be recorded in the manner. provided by section twenty-three of this Act, and shall be enforceable against the employer in like manner and subject to the same provisions as an agreement to pay compensation in case of an injury by accident.

(3) In such cases, and subject to such conditions as the Secretary of State may direct, a medical practitioner appointed by the Secretary of State for the purpose shall

Sec. 44 (3)

1906 Act,

Sec. 8 (5).

Sec. 44 (3)

Sec. 44 (4) 1906 Act, Sec. 8 (3).

have the powers and duties of a certifying surgeon under the foregoing provisions of this Part of this Act, and those provisions shall be construed accordingly.

(4) The Secretary of State may make rules regulating the duties and fees of certifying and other surgeons (including dentists) under the foregoing provisions of this Part of this Act.

PRESUMPTION RAISED BY SEC. 44 (1).-When once it is proved that the disablement or suspension has been caused by a disease mentioned in the Third Schedule, and that the workman was at or immediately before the date of the disablement or suspension" employed in the corresponding process therein mentioned, it is provided by this Sub-section that it will be presumed that the disease was due to the nature of the employment, unless the certifying surgeon certifies, or the employer proves, that it was not.

Where a workman died from lead poisoning on 15th May, but had only worked in a lead process during the previous twelve months for two short periods, viz., 12th to 15th March and 14th to 18th April, it was held 18th April was not at or immediately before' 15th May, so that this Sub-section did not raise any presumption in his favour (Dean v. Rubian Art Pottery Co., Ltd., p. 457).

Where a workman, who was engaged as a surface labourer at a colliery, obtained from the Certifying Surgeon a certificate that he was suffering from nystagmus and was disabled from earning full wages, it was held that he was not employed in any process of "mining within the meaning of this Sub-section and Schedule III. (p. 517), and consequently was not entitled to the statutory presumption thereof, viz. : that the disease was due to the nature of the employment (Scullion v. Cadzow Coal Co., Ltd. [1914] S. C. 36; 51 S. L. R. 39; 7 B. 833; [1914] W. C. Rep. 129).

In Wilson v. Blyth Ship Building, etc. Co., Ltd. ([1919] 1 K. B. 324; 88 L J. K. B. 27; 120 L. T. R. 1; 11 B. 173; [1919] W. C. Rep. 335) a workman, employed as a riveter's holder up," was certified to be incapacitated from "beat hand." The description of process set opposite to the disease in the second column to the Schedule is "mining." On a claim for compensation the employers contended that "beat hand " only became a disease for which compensation was payable under the Act if it were due to the employment of mining. It was held, however, that the disease of "beat hand," being a scheduled disease under the Act, gave the workman the right to compensation, provided the disease was proved to be due to his employment. The fact that "mining " appeared opposite "beat hand" in the second column of the Schedule did not prevent workmen who contracted beat hand in trades other than mining" from recovering compensation under the Act, but was only relevant where the workman was at or immediately before the date of disablement employed in mining, and then the employer would have to prove, in order to avoid liability, that the disease was not due to mining; the presumption raised by Sec. 44 (1) being that it was so due. Swinfen Eady, M.R., said :—“ The effect of [Sec. 44 (1)] is that, where a workman is for the time being engaged in a process mentioned in the second column of the schedule and he is suffering from a disease set opposite to it in the first column, the burden of proof is shifted from the

workman to the employer, and the disease is to be deemed to be due Sec. 44 (1) to the nature of the employment . . . 'except where the certifying surgeon certifies that in his opinion the disease was not due to the nature of the employment . . . or unless the employer proves the contrary.'

Where a workman is employed in a process mentioned in the second column of Schedule III, or of the Orders of the Secretary of State, and obtains from the certifying surgeon (or, on appeal, from the medical referee (Sec. 43 (1) (f)) a certificate that he is suffering from a disease mentioned in the first column of that Schedule or Order set opposite the description or process, but the certifying surgeon (or medical referee) certifies that in his opinion the disease is not due to the nature of the employment, although in such a case the statutory presumption of Sec. 44 (1) that the disease is due to the nature of the employment is thereby excluded, yet the workman is not estopped from proving in the terms of Sec. 43 (1) that the disease was in fact due to the nature of the employment (M'Ginn v. Udston Coal Co., Ltd. [1912] S. C. 668; 49 S. L. R. 531; 5 B. 559; [1912] W. C. Rep. 134).

It is important to remember that this Sub-section does not apply until the applicant has proved that the death or incapacity is due to the disease, that is to say, it has no application until the applicant has brought his case within the operation of Sec. 43 (1), and, in order to bring a case within the operation of that Section, it must be established that the disease was either the proximate or ultimate cause of the incapacity or death. It is not sufficient that the death or incapacity was caused by a complaint which might in some cases be a sequela of the disease but might also be a sequela of something else. It must be proved that it was at least a remote consequence of the disease in the case of the particular individual. For instance, in Haylett v. Vigor and Co. ([1908] 2 K. B. 837; 77 L. J. K. B. 1132; 99 L. T. R. 674; 24 T. L. R. 885; 1 B. 282), on a claim by the dependants of a deceased workman who had for many years been a painter and who had suffered from lead poisoning, the County Court Judge found: (1) that the immediate cause of death was granular kidney; (2) that granular kidney is a sequela of lead poisoning, but is also a sequela of gout, alcoholism, heart pressure and other complaints; and (3) that lead poisoning was not proved to have been the cause of the granular kidney or of the death, but that, on the other hand, the employers did not prove that it was not the cause of death; and upon these findings he held that the applicants were entitled to compensation, but he was reversed on appeal. Speaking of Sec. 44 (1), CozensHardy, M.R., said :-"This Section presupposes death caused by a disease mentioned in the Third Schedule, and in no way alters the operation of Sec. 43 (1) . . . It deals only with evidence, and it has no effect whatever until the applicant has brought the case within the operation of the earlier part of the Section."

employed in any

EMPLOYED IN ANY PROCESS.-The words process mentioned in the second column of the Third Schedule" relate to the general nature of the workman's employment, and are not confined to the particular work, or job, which he was doing under his contract of service at or immediately before the date of disablement. Meadows v. Ellerman Lines, Ltd. ([1920] 3 K. B. 544; 89 L. J. K. B. 1234; 124 L. T. R. 65; 13 B. 227; [1920] W. C. Rep. 207) the deceased workman was a foreman in charge of a gang whose duty it was to unload ships. While acting as foreman he often had to handle hides

Sec. 44 (1)

Sec. 45 (1)

Mutual insurance of employers engaged in industries.

and skins himself and touches ropes and articles which had come in contact with the skins. Four days after a ship containing skins had been unloaded he was found to be suffering from anthrax. At this time he was, in fact, engaged in unloading another ship on which there were no skins, but the employer's sheds, through which he was constantly passing, were full of skins. He died shortly afterwards and his dependants claimed compensation. The County Court Judge found that there was no evidence that the deceased had handled hides or skins in the course of his employment at or immediately before the date of disablement, and, therefore, the onus was on the dependants to prove that the disease was due to the nature of the employment; they had not discharged this onus, and therefore, the application for compensation failed. He further stated that if the onus had been on the employers within the meaning of Sec. 44 (1), to prove that the man had not contracted the disease in their employment, he would have found that they had not discharged the onus and would have awarded for the dependants. It was held by the Court of Appeal, reversing the County Court Judge, that it was impossible to limit the description of the processhandling hides to an employment which consisted of handling hides and nothing else. Where handling of hides formed part of the regular duties of the employment at or immediately before the disable ment, then even though the workman was not engaged upon the particular job of handling hides at or immediately before the disablement, the onus is upon the employer. In the present case it was established that the regular duties of the employment at the material period included the duty of handling hides. The workman, therefore, was employed in the scheduled process, and was in such employment at or immediately before the disablement, and the dependants were entitled to compensation.

Atkin, L.J., in delivering the judgment of the Court in Meadow's case p. 471) pointed out that it would be illogical to cast the onus, under Sec. 44 (1), upon the employer in cases where "handling hides" was only a casual incident and not one of the regular duties of the employment, or in cases where, though "handling hides" was one of the regular duties of the employment at varying times or seasons, yet it was not part of the regular duties at or immediately before the disablement.

EFFECT OF SUB-SECTION (2).-This sub-section provides that it shall not be necessary for a workman to obtain a certificate from a certifying surgeon in any case where the employer agrees that he is liable to pay compensation in respect of incapacity arising from a scheduled disease. Such an agreement may be recorded under Sec. 23 of the Act, and will be enforceable against the employer in the same manner and subject to the same provisions as an agreement to pay compensation in case of an injury by accident.

SUB-SECTION (3).-See note, p. 460, ante.

SUB-SECTION (4).-See note, p. 460, ante.

45.--(1) Where, after inquiry held on the application of any employers or workmen engaged in any industry to which the foregoing provisions of this Part of this Act apply, it appears that a mutual trade insurance company