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an application to diminish weekly payments where the county court judge found that the man was fit for light work, and where the evidence was undisputed that the employers had offered him light work, the county court judge is not entitled to make an order refusing to diminish the payment without requiring evidence from the workman as to his condition and as to his probable earnings.73

What is a suitable occupation for a workman who has not fully recovered is primarily a question of fact depending upon his condition and the nature of the work in question.7 74 The county court judge may find that mining coal is not a "suitable occupation" for a man, one of whose eyes is defective.75 So the work of stoking a furnace may be found unsuited for a workman who has lost one eye by accident, where the other eye is also affected.76 But a miner who had lost an eye while at work at his employment cannot claim upon his recovery that the same employment is not suitable for him, merely because of the fact that if a similar accident befalls him in the future, the consequence will be the total loss of his eyesight.77 An

73 Gray v. Reed [1913] W. C. & Ins. Rep. (Eng.) 127, 108 L. T. N. S. 53, 6 B. W. C. C. 43.

74 The county court judge is justified in failing to reduce the compensation given to an injured employee, where he found that the man could do the old work, but that it would be dangerous for him and that it was not suitable employment because of his injury. Dinnington Main Coal Co. v. Bruins [1912] W. C. Rep. (Eng.) 173, 5 B. W. C. C. 367.

75 Eyre v. Houghton Main Colliery Co. [1910] 1 K. B. (Eng.) 695, 79 L. J. K. B. N. S. 698, 102 L. T. N. S. 385, 26 Times L. R. 302, 54 Sol. Jo. 304, 3 B. W. C. C. 250.

76 Thompson v. Newton (1914) 7 B. W. C. C. (Eng.) 703.

77 Law v. Baird [1914] S. C. 423, 51 Scot. L. R. 388, [1914] W. C. & Ins. Rep. 140, 7 B. W. C. C. 846.

To the same general effect was the decision in Housley v. Hadfields (1915) 8 B. W. C. C. (Eng.) 497, where it was held that a steel settler could not refuse to do his old work merely because he was afraid that he might lose the sight of his other eye, with the result that he would be totally blind.

78 Burt v. Fife Coal Co. (1914) 52 Scot. L. R. 51, 8 B. W. C. C. 350.

79 Furness v. Bennett (1910) 3 B. W. C. C. (Eng.) 195.

An offer by the employers to give a workman injured at Belfast, work in Dublin at his old wage, may be found to be reasonable, the employers having discontinued

arbitrator, however, is not bound by this decision to find that work as a miner at the coal face is suitable for a miner who had recently lost an eye at such work.78 Whether or not the refusal of a workman to do light work is unreasonable is a question of fact.79 But the arbitrator is not justified in holding that light work is not suitable for a workman who had lost an eye, merely upon the workman's opinion that the fumes from a gas plant would probably cause an irritation to his remaining eye.80 A workman may be found to be acting unreasonably in refusing to do light work, although the refusal is based upon the advice of his doctor.8 The county court judge may find that the workman's refusal to perform light labor is unreasonable, although the employer has not specifically alleged this fact in his answer.

81

83

82

In fixing the amount of the weekly payment, regard must be had to any payment, allowance, or benefit which the workman may have received from the employer during the period of his incapacity.8 The fees paid by the employer for treatment given to the injured employee at a hospital may be deducted from the compensation paid to the worktheir business in Belfast. Wallis v. M'Neice (1912) 46 Ir. L. T. 202, 6 B. W. C. C. 445. 80 Ashmore v. Lillie [1915] W. C. & Ins. Rep. (Eng.) 7, 8 B. W. C. C. 89.

81 Higgs v. Unicume [1913] 1 K. B. (Eng.) 595, 82 L. J. K. B. N. S. 369, 108 L. T. N. S. 169, [1913] W. N. 36, [1913] W. C. & Ins. Rep. 263, 6 B. W. C. C. 205. See also Cowan v. Simpson (1909) 3 B. W. C. C. (Eng.) 4, cited supra, note 72.

In both of these cases it was contended that, inasmuch as the workman followed the advice of his doctor, he could not be considered to have acted unreasonably, citing Tutton v. The Majestic [1909] 2 K B. (Eng.) 54, 78 L. J. K. B. N. S. 530, 100 L. T. N. S. 644, 25 Times L. R. 482, 53 Sol. Jo. 447, 2 B. W. C. C. 346, in which case it was held that a workman did not act unreasonably in refusing to have an operation performed where his doctor advised against it. But in the Higgs Case, Hamilton, L. J., distinguished between a case in which the workman neither had nor could be expected to have any compe tent knowledge, and a case in which the circumstances were peculiarly within the knowledge of the workman, as his ability to do light work.

82 Potts v. Guildford (1914) 7 B. W. C. C. (Eng.) 675.

83 An employer who, for a considerable portion of time after an accident, had paid the workman considerably more than half wages as compensation, and then reduced the payment to half wages, but in computing the half wages did not take into consideration certain allowances which were

84

men. But no regard shall be had of | wages, an agreement for the usual rate any payments made to the workman for that particular work in that localwhich the employer was legally bound to ity will be inferred.89 make.85

In the case of minors, it is neces

e. “Average weekly earnings" ( 2). sary to read into schedule 1, ¶ 3, the

1. In general.

"probable earnings" of a minor in place of his "average earnings." 90 In computing the average weekly earnings of not competent to take into account the a casual laborer hired by the hour, it is probability of his continuing in the employment.91

In the case of a fatal accident to a workman who has for the three years preceding the accident been in the employment of the same employers, the compensation is based on the total of his earnings during those three years. But constitute a question of fact; and if The average earnings of a workman in cases where there is a fatal accident there is evidence to support the county after a period of employment amount-court judge's conclusion, it will not be ing to less than three years, and in cases interfered with.92 where total or partial incapacity results from the injury, the "average weekly earnings" of the workman constitute the basis of computation for the assessment of the amount recoverable.86

Under the act of 1897, the only proper basis for the assessment of the amount of compensation with reference to the average weekly earnings of the workman was to consider the period of actual employment under his own employer, and the sum actually received by him from that employer. An arbitrator was not entitled to take into consideration what the workman might possibly have earned in the employment of other employers.93 But this frequently worked

The phrase "average weekly earnings" is to be taken in the natural meaning of the term,87 and has been defined as the total amount actually earned by the workman during his employment divided by the number of weeks during which or during part of which he was employed.88 In the absence of any agreed rate of paid to the workman, is entitled, upon | 55 Sol. Jo. 124, 11 Asp. Mar. L. Cas. 515, a subsequent application for arbitration, 4 B. W. C. C. 123, 48 Scot. L. R. 728, it to have the excess paid under the first arrangement offset against the arrears due the workman under the second arrange ment. Porter v. Whitbread [1914] W. C. & Ins. Rep. (Eng.) 59, 7 B. W. C. C. 205. Cozens-Hardy, M. R., said: "In the case of an ordinary workman, I think you are bound to take into consideration all these payments. The opposite view would strike me as almost so absurd as not to be permissible at all. Any payments in respect of the accident must be taken into account."

An amount paid the workman under an unregistered agreement, which amount was tendered and received as full settlement of the employer's liability to the workman, must be taken into account where the registrar refused to register the agreement and the county court to whom the matter was referred awarded compensation. Horsman v. Glasgow Nav. Co. (1909) 3 B. W. C. C. (Eng.) 27.

84 Suleman v. The Ben Lomond (1909; C. C.) 126 L. T. Jo. (Eng.) 308, 2 B. W. C. C. 499.

Maintenance and medical treatment received by an injured seaman in a hospital, which was subsequently paid for by the employer, may be found to be a benefit received by the seaman during the period of incapacity. Sorensen v. Gaff [1912] S. C. 1163, 49 Scot. L. R. 896, 6 B. W. C. C. 279.

85 In McDermott v. The Tintoretto [1911] A. C. (Eng.) 35, 80 L. J. K. B. N. S. 161,| 103 L. T. N. S. 769, 27 Times L. R. 149,

was held that the provisions of paragraph 3 of the first schedule do not require that,. in fixing the compensation of a seaman who was totally incapacitated by accidental injury, regard must be had to the payment of any wages and maintenance which the vessel was required to give him under the merchants' shipping acts, where the applicant did not ask for compensation for the period prior to his return to England.

86 Perry v. Wright [1908] 1 K. B. (Eng.) 441, 77 L. J. K. B. N. S. 236, 98 L. T. N. S. 327, 24 Times L. R. 186, 1 B. W. C. C. 351.

87 (Eng.) Ibid.

88 Fleming v. Lochgelly Iron & Coal Co. (1902) 4 Sc. Sess. Cas. 5th series, 890, 39 Scot. L. R. 684, 10 Scot. L. T. 114.

89 Jones v. Walker (1899; C. C.) 105 L.. T. Jo. (Eng.) 579, 1 W. C. C. 142.

90 Edwards v. Alyn Steel Tinplate Co. (1910) 3 B. W. C. C. (Eng.) 141.

91 Case v. Colonial Wharves (1905) 53 Week. Rep. (Eng.) 514.

92 Williams v. Wynnstay Collieries (1910) 3 B. W. C. C. (Eng.) 473.

93 Price v. Marsden [1899] 1 Q. B. (Eng.) 493, 68 L. J. Q. B. N. S. 307, 47 Week. Rep. 274, 80 L. T. N. S. 15, 15 Times L. R. 184; Williams v. Poulson (1899) 16 Times L. R. (Eng.) 42, 63 J. P. 757, 2 W. C. C. 126; Small v. M'Cormick (1899) 1 Sc. Sess. Cas. 5th series, 883, 36 Scot. L. R. 700, 7 Scot. L. T. 35.

Where a workman who had been employed by contractors in a mine was dis-

2. Grades.

hardships, upon the workman, and by, of the first schedule also expressly prothe express provisions of schedule 1, vides for the consideration of wages paragraph 2 (a), of the act of 1906, the earned under concurrent contracts of court is empowered in cases where service, so that the arbitrator may now the shortness of the time during which in a proper case, consider earnings rethe workman has been in the employment ceived from another employer than that of his employers, or the casual nature from whom compensation is sought. of his employment, or the terms of the employment render it impracticable to compute the rate of remuneration at the The word "grade," as used in scheddate of the accident, to resort for as- ule 1 (1) (a), has no technical meaning.95 sistance in estimating that rate, to mat- It does not refer to the individual charters relating to workmen of the same acteristics of the workman, but to the grade employed at the same work for particular rank in the industrial hierthe same employer, or even should this archy occupied by the workman, such as fail, to persons in the same grade em- shepherd, carter, bricklayer, etc.96 But, ployed in the same class of employment in determining the question of average in the same district.94 Paragraph 2 (b) weekly earnings of a casual workman, missed, and two days thereafter secured county court judge found that it was im¡ employment from the mine master in the practicable to compute the rate of comsame mine, and after working three days pensation, and that among dock laborers was injured, his earnings under the con- there were no definite grades; but that the tractors cannot be considered in fixing his men formed themselves into "good" and compensation. Hunter v. Baird, 7 F. (Scot.) "bad." and that the applicant belonged to 304 (Ct. of Sess.) as cited in 2 News' Dig. the latter grade because of his poor physique Supp. 1570. and his addiction to drink. In sending the case back to the county court judge, CozensHardy, M. R., observed: "I think the learned county court judge has misdirected himself as to the meaning of the word 'grade.' That word does not involve or depend upon individual characteristics. Each grade may, and indeed must, have good and bad members. The good and the bad are not two grades. I think the case must go back to the learned county court judge to decide whether casual dock laborers from a distinct grade in the hierarchy of labor, and, if so, what are the average earnings in that grade. He may have regard to these average earnings, but he will not be bound to take those average earnings as the basis of his award. He has seen Perry, and is satisfied that he was not getting, and would not get, the full average. But Perry must not be put into an artificial class of bad workers entitled to only half wages. If, however, the county court judge should decide that casual dock laborers do not form a distinct grade, it will then be necessary to estimate the proper compensation as best he can without the aid afforded by the proviso in § 2(a)." Fletcher Moulton, L. J., said: "In considering the average earnings of a workman of the same grade he was not entitled to consider whether the workman in question was a good or a bad specimen. By the word 'grade' the act refers, in my opinion. to a class of employment, and not to the relative merits or capabilities of the persons in that class, so that it is an error to talk about a class of good workmen and a class of bad workmen as constituting different grades. The relevant grade in this case was that of casual dock laborers as a whole; and the learned judge was entitled to have regard to the average account earned by such laborers in the district, but was not entitled to separate

In Bartlett v. Tutton [1902] 1 K. B. (Eng.) 72, 71 L. J. K. B. N. S. 52, 66 J. P. 196, 50 Week. Rep. 149, 85 L. T. N. S. 531, 18 Times L. R. 35, a workman employed as a casual dock laborer to work for a day met with an accident in the course of his employment. He was paid 3s. 3d. for the work done by him up to the time of the accident, being at the rate of so much an hour for the number of hours he had worked. There was no evidence that the workman had ever before, or would again, work for the employers. An award in the workman's favor for 50 per cent of 18s..which the judge found to be the average weekly earnings of an ordinary casual dock laborer in the port of Bristol (where the workman worked), taking one week with another throughout the year, was held to be erroneous, as there were materials before the arbitrator upon which it was possible for him to find the weekly earnings of the workman in the employment of the defendant.

94 Perry v. Wright [1908] 1 K. B. (Eng.) 441, 77 L. J. K. B. N. S. 236, 98 L. T. N. S. 327, 24 Times L. R. 186, 1 B. W. C. C.

351.

95 Barnett v. Port of London Authority [1913] 2 K. B. (Eng.) 115, 82 L. J. K. B. N. S. 353, 108 L. T. N. S. 277, 29 Times L. R. 252, [1913] W. C. & Ins. Rep. 250, [1913] W. N. 35, 57 Sol. Jo. 282, 6 B. W. C. C. 105.

96 Perry v. Wright [1908] 1 K. B. (Eng.) 441, 77 L. J. K. B. N. S. 236, 98 L. T. N. S. 327, 24 Times L. R. 186, 1 B. W. C. C. 351. In this case the workman was a casual dock laborer who worked first for one stevedore and then for another, "just a job turned up," remaining idle between jobs, and had worked but two days for the respondent when injured. The

as

after fixing the grade to which he be-, the purpose of estimating the average longs, regard must then be had to the personal qualifications of the man.97

Where the arrangements are such that casual dock laborers are divided into two classes, one of which is entitled to employment in preference to the other, the two classes form distinct grades.98 "Light work" furnished to an injured workman is not a grade of employment,99 and there is no grade of strike breakers.1 Any step from one grade up or down to another is a change of employment for them into two grades, namely, the good and bad workmen, and consider only the average amount earned by those whom he included in the latter class."

In Cain v. Frederick Leyland & Co. [1908] 1 K. B. (Eng.) 441, 77 L. J. K. B. N. S. 236, 98 L. T. N. S. 327, 24 Times L. R. 186, 1 B. W. C. C. 368, a casual shipwright was injured on the first day of his employment. The county court judge found that there were two classes of casual shipwrights, the good and the indifferent; and fixed the mean between the average earned by the two classes as being the average weekly earnings of the average good shipwright, such as he found the injured workman to be, and his conclusion was sustained by the court of appeal. It is to be noted that the county court judge did not make use of the word "grade," and Fletcher Moulton, L. J., said that there was nothing in his findings that could be excepted to, as a matter of law. 97 Cue V. Port of London Authority [1914] 3 K. B. (Eng.) 892, 83 L. J. K. B. N. S. 1445, 111 L. T. N. S. 736, [1914] W. N. 280, 137 L. T. Jo. 211, 7 B. W. C. C.

447.

In Perry v. Wright [1908] 1 K. B. (Eng.) 441, 1 B. W. C. C. 351, Cozens-Hardy, M. R., said: "Having found that the man has a particular grade and what are the average wages in that grade, there is no obligation to adopt those average wages as the basis of compensation. The personal element then comes in. It will still be open to consider whether the individual workman is an average man or is above or below an average man. This must be so where men in a particular grade are employed on piecework. You cannot reject evidence of the skill and efficiency of the individual workman. Where payment is at so much per hour for every man in a particular grade, the skill and efficiency may, perhaps, be disregarded, though I am not prepared to say that the age and the habits of the individual may not have such an influence upon his chance of employment as to deserve consideration."

In computing the average weekly earnings of a casual laborer, the arbitrator is not merely to ascertain the amount of the average weekly earnings of men employed in the same class of work as the applicant, but regard must be had to the personal qualifications of the injured workman; and

weekly earnings of the workman "at the time of the injury." 2 A different rule prevailed under the act before it was amended in 1906 by the addition of the second paragraph of schedule 1.3

In fixing the compensation of an injured workman who had served the same employer in different capacities, the compensation must be based on the wages the workman was earning in the grade of employment in which he met with the accident. But if the workman is if his actual earnings during the past year or any other evidence showed that he was in fact above the average, that must be regarded. Snell v. Bristol Corp. [1914] 2 K. B. (Eng.) 291, 83 L. J. K. B. N. S. 353, 110 L. T. N. S. 563, [1914] W. N. 47, [1914] W. C. & Ins. Rep. 103, 7 B. W. C. C. 236.

98 Where dock laborers were divided into three classes known as A laborers and B laborers and extra casual laborers, and the A. laborers had permanent employment, and the B laborers secured admission tickets and got employment after the A laborers, and the extra casual laborers had a chance for work after the B laborers, and at the same rate of pay, the B laborers and the extra casual laborers, form or may form separate grades. Barnett v. Port of London Authority [1913] 2 K. B. (Eng.) 115, 82 L. J. K. B. N. S. 353, 108 L. T. N. S. 277, 29 Times L. R. 252, (1913] W. C. & Ins. Rep. 250, [1913] W. N. 35, 57 Sol. Jo. 282, 6 B. W. C. C. 105.

99 Where a workman previously injured had returned and been employed at "light work" for upwards of six months, the earnings for that period only are to be considered in determining his average weekly earnings, and the question of the existence of other workmen "of the same grade" does not arise. Gough v. Crawshay Bros. [1908] 1 K. B. (Eng.) 441, 77 L. J. K. B. N. S. 238, 98 L. T. N. S. 327, 24 Times L. R. 186, 1 B. W. C. C. 374.

1 Priestley v. Port of London Authority [1913] 2 K. B. (Eng.) 115, 82 L. J. K. B. N. S. 353, 108 L. T. N. S. 277, 29 Times L. R. 252, 57 Sol. Jo. 282, 6 B. W. C. C. 105.

2 Perry v. Wright (Eng.) supra.

3 Price v. Marsden [1899] 1 Q. B. (Eng.) 493, 80 L. T. N. S. 15, 68 L. J. Q. B. N. S. 307, 47 Week. Rep. 274, 15 Times L. R. 184, holding that the amount of compensation due to a workman who had been employed by the same employer during twelve months before the accident should be computed from the weekly earnings during the entire twelve months, although the character of his work had, within that period, been altered, and his wages increased.

4 Babcock v. Young [1911] S. C. 406, 48 Scot. L. R. 298, 4 B. W. C. C. 367 (workman served as boiler maker and as common laborer).

Where a mill girl in a roperie, because of her proficiency in her work, was advanced

regularly employed in one grade, and is temporarily transferred to another grade in an emergency, the wages of the latter grade do not determine his compensation.5

The construction and meaning of the word "grade" as used in schedule 1 (2) is a question of law.6

3. Concurrent employments.

The provision in ¶ 2 (b), as to concurrent contracts, applies only to cases where it is necessary to compute the average weekly earnings of the workman; consequently earnings under a concurrent contract are to be disregarded where compensation is sought by the dependents of a workman who had worked continuously for over three years for the same employer.7

This provision does not apply where, to a machine where a finer grade of hemp was handled, and her wages were increased, such a change is a change in the grade of her employment; and although she had worked in that grade but five weeks at the time of her injury, her compensation is to be fixed with reference to the wages she was earning at the time of her injury, and not with reference to the average amount she had earned during the year. Dalgleish v. Edinburgh Roperie & Sailcloth Co. [1913] S. C. 1007, 50 Scot. L. R. 916, 6 B. W. C. C. 867.

5 Where a sailor had for some time been employed in different capacities and at various rates of wages by the employer, and at the time of his accident had been engaged three days temporarily as mate in the place of his son, who had been injured, it is error for the county court judge to hold that the man's grade at the time of his death was that of mate, and that the determination of the grade was a question of law which was appealable. Jury v. The Atlanta [1912] 3 K. B. (Eng.) 366, 81 L. J. K. B. N. S. 1182, 107 L. T. N. S. 366, 28 Times L. R. 562, 56 Sol. Jo. 703, [1912] W. N. 218, 5 B. W. C. C. 681.

Where a workman who was employed as a casual carter, for a few weeks immediately prior to his death had been employed by the same employers as a casual teamster while the employers were on the lookout for a regular man, the defendents were not entitled to compensation upon the basis of his wages as teamster, which were higher than those earned as cartman, but the total amount of wages earned by the cartman, both as carter and as teamster, were to be taken into consideration in calculating the "average weekly earnings." Edge v. Gorton [1912] 3 K. B. (Eng.) 360, 81 L. J. K. B. N. S. 1185, 107 L. T. N. S. 340, 28 Times L. R. 566, 56 Sol. Jo. 719, [1912] W. N. 217, 5 B. W. C. C. 614.

The same method of calculating the average weekly earnings was approved in Dobson v. British Oil & Cake Mills (1912)

although money is earned in another way, it is not earned under contract of employment.8 And a laborer has not concurrent contracts of employment, where he only takes the second job on which the contract arises after the first one is finished, and he only takes a later one after the second one is finished.9 The concurrent contracts, however, need not be of an ejusdem generis character.10

4. Absences from work.

In computing the average weekly earnings of a workman who had been in the employment for a full year or more, but who was unable to work all of the time because the employer did not have work for him, his total earnings for the year are to be divided by 52, and not by that figure, less the number of weeks he did not work for this reason." The same

11

106 L. T. N. S. (Eng.) 922, [1912] W. C. Rep. 207, 5 B. W. C. C. 405.

6 Jury v. The Atlanta (Eng.) supra.

7 Buckley v. London & I. Docks (1909) 127 L. T. Jo. (Eng.) 521, 2 B. W. C. C. 327.

8 An employee of a laundry who also gives music lessons is not entitled when injured in the laundry to claim anything for the money earned by giving music lessons which was not earned under a contract of employment. Simmons v. Heath Laundry Co. [1910] 1 K. B. (Eng.) 543, 79 L. J. K. B. N. S. 395, 102 L. T. N. S. 210, 26 Times L. R. 326, 54 Sol. Jo. 392, 3 B. W. C. C. 200.

9 The county court judge is in error in finding that a porter on a wharf, engaged by different shipping companies from time to time, was under concurrent contracts of employment. Cue v. Port of London Authority [1914] 3 K. B. (Eng.) 892, [1914] W. N. 280, 137 L. T. Jo. 211, 83 L. J. K. B. N. S. 1445, 111 L. T. N. S. 736, 7 B. W. C. C. 447.

10 The amount earned in the evening at a theater by a workman employed during the day by a railroad company is to be taken into consideration in fixing his average weekly earning, although the rules of the railroad provided that all persons employed by the company must devote themselves exclusively to the company's service. Lloyd v. Midland R. Co. [1914] 2 K. B. (Eng.) 53, 83 L. J. K. B. N. S. 330, 110 L. T. N. S. 513, 30 Times L. R. 247, 58 Sol. Jo. 249, [1914] W. N. 32, [1914] W. C. & Ins. Rep. 108, 7 B. W. C. C. 72.

In fixing the average weekly earnings of a stoker, a retainer as stoker in the Royal Naval Reserve must be taken into account, as well as his wages. The Raphael v. Brandy [1911] A. C. (Eng.) 413, 80 L. J. K. B. N. S. 1067, 105 L. T. N. S. 116, 27 Times L. R. 497, 55 Sol. Jo. 579, 4 B. W. C. C. 307.

11 In calculating the average weekly earnings consideration must be given to the

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