two hundred and fifty pounds a year, or persons whose employment
is of a casual nature, and who are employed otherwise than
for the purposes of the employer’s trade or business, or members
of a police force, or out-workers, or members of the employer’s
family dwelling in his house. But it expressly applies to seamen.
To entitle a workman engaged in an employment to which the act applies to compensation all the following conditions must be fulfilled: (1) There must be personal injury by accident. This will exclude injury wilfully inflicted, unless the injury results in death or serious Conditions of claim. and permanent disablement, but the act introduces a new provision by making the suspension or disablement from work or death caused by certain industrial diseases “accidents” within the meaning of the act. The industrial diseases specified in the 3rd schedule of the act were anthrax, ankylostomiasis, and lead, mercury, phosphorus and arsenic poisoning or their sequelae. But § 8 of the act authorized the secretary of state to make orders from time to time including other industrial diseases, and such orders have embraced glass workers’ cataract, telegraphists’ cramp, eczematous ulceration of the skin produced by dust or liquid, ulceration of the mucous membrane of the nose or mouth produced by dust, &c. To render the employer liable the workman must either obtain a certificate of disablement or be suspended or die by reason of the disease. If the disease has been contracted by a gradual process, all the employers who have employed the workman during the previous twelve months in the employment to which the disease was due are liable to contribute a share of the compensation to the employer primarily liable. (2) The accident must arise out of and in the course of the employment. In each case it will have to be determined whether the workman was at the time of the accident in the course of his employment, and whether the accident arose out of the employment. It will have to be considered when and where the particular employment began and ended. Other difficulties have arisen and will frequently arise when the workman at the time of the accident is doing something which is no part of the work he is employed to do. So far as the decisions have gone, they indicate that if what the workman is doing is no act of service, but merely for his own pleasure, or if he is improperly meddling with that which is no part of his work, the accident does not arise out of and in the course of his employment; but if, while on his master’s work, he upon an emergency acts in his master’s interest, though what he does is no part of the work he is employed to do, the accident does arise out of and in the course of his employment. (3) The injury must be such as disables the workman for a period of at least one week from earning full wages at the work at which he was employed. (4) Notice of the accident must be given as soon as practicable after the happening thereof, and before the workman has voluntarily left the employment in which he was injured; and the claim for compensation (by which is meant notice that he claims compensation under the act addressed by the workman to the employer) must be made within six months from the occurrence of the accident or, in case of death, from the time of death. Want of notice of the accident or defects in it are not to be a bar to proceedings, if occasioned by mistake or other reasonable cause, and the employer is not prejudiced thereby. But want of notice of a claim for compensation is a bar to proceedings, unless the employer by his conduct has estopped himself from relying upon it. (5) An injured workman must, if so required by the employer, submit himself to medical examination.
When these conditions are fulfilled, an employer who is within the act has no answer unless he can prove that the injury arose from the serious and wilful misconduct of the workman. The precise effect of these terms is not clear; but mere negligence is not within them.
Where the injury causes death, the right to compensation belongs to the workman’s “dependents”; that is, such of the members of the workman’s family as were at the time of the death wholly or in part dependent upon the earnings of the workman for their maintenance. “Members of a family” means wife or husband, father, mother, grandfather, grandmother, step-father, step-mother, son, daughter, grandson, granddaughter, step-son, step-daughter, brother, sister, half-brother, half-sister. The act of 1906 makes also a very remarkable departure in including illegitimate relations in the direct line among “dependents,” for where a workman, being the parent or grandparent of an illegitimate child, leaves such a child dependent upon his earnings, or, being an illegitimate child, leaves a parent or grandparent so dependent upon his earnings, such child or parent is to be included in the “members of a family.”
Under the act compensation is for loss of wages only, and is, as has been said, based upon the actual previous earnings of the injured workman in the employment of the employers for whom he is working at the time of the injury. In case of death, if the workman leaves dependents who were wholly Amount. dependent on his earnings, the amount recovered is a sum equal to his earnings in the employment of the same employer during the three years next preceding the injury, or the sum of £150, whichever is the larger, but not exceeding £300; if the period of his employment by the same employer has been less than three years, then the amount of his earnings during the three years is to be deemed to be 156 times his average weekly earnings during the period of his actual employment under the said employer. If the workman leaves only dependents who were not wholly dependent, the amount recovered is such sum as may be reasonable and proportionate to the injury to them, but not exceeding the amount payable in the previous case. If the workman leaves no dependents, the amount recoverable is the reasonable expenses of his medical attendance and burial, not exceeding £10. In case of total or partial incapacity for work resulting from the injury, what is recovered is a weekly payment during the incapacity after the second week not exceeding 50% of the workman’s average weekly earnings during the previous twelve months, if he has been so long employed, but if not, then for any less period during which he has been in the continuous employment of the same employer; such weekly payment is not to exceed £1—and in fixing it regard is to be had to the difference between the amount of his average weekly earnings before the accident and the average amount which he is able to earn after the accident. Any payments, not being wages, made by the employer in respect of the injury must also be taken into account. The weekly payment may from time to time be reviewed at the request of either party, upon evidence of a change in the circumstances since the award was made, and after six months may be redeemed by the employer by payment of a lump sum. A workman is within the act although at the time of the injury he has been in the employment for less than two weeks, and although there are no actual earnings from the same employer upon which a weekly average can be computed. But how are the average weekly earnings which he would have earned from the same employer to be estimated? The question must be determined as one of fact by reference to all the circumstances of the particular case. Suppose the workman to be engaged at six shillings a day and injured on the first day. If it can be inferred that he would have remained in such employment for a whole week, his average weekly earnings from the same employer may be taken at thirty shillings. If it can be inferred that he would have worked one day and no more, his average weekly earnings from the same employer may be taken at six shillings.
All questions as to liability or otherwise under the act, if not settled by agreement, are referred to arbitration in accordance with a scheme prescribed by the act. Contracting out is not permitted, save in one event: where a scheme of compensation, benefit or insurance for the workmen of an employer has been certified by the Registrar of Friendly Societies to be not less favourable to the workmen and their dependents than the provisions of the act, and that where the scheme provides for contributions by the workmen, it confers benefits at least equal to those contributions, in addition to the benefits to which the workmen would have been entitled under the act, and that a majority (to be ascertained by ballot) of the workmen to whom the scheme is applicable are in favour of it, the employer may contract with any of his workmen that the provisions of the
