A more complex problem arises where the workman has not been employed for a full year, and during a portion of the order to arrive at the average weekly earnings, but that the amount received should be divided by the actual number of weeks or portions of weeks during which the work was done, as it was not the workman's fault that the stoppages occurred. But Fletcher Moulton, L. J., held that stoppages on recognized holidays were to be regarded as times when the employer could not be called upon to furnish employment, and the amount which the workman might have earned during such period was to be deducted. He said: "I will assume, for the sake of clearness, that the total of the

To the same effect is a Scotch ruling to the effect that, in computing the "average weekly earnings" of a laborer who had been employed for a varying number of hours on seventy-seven stated days at ir regular intervals, during a period of 105 weeks, the total amount of the earnings should be divided by the whole number of weeks, without discarding weeks in which there had been no employment. Small v. M'Cormick (1899) 1 Sc. Sess. Cas. 5th series, 883, 36 Scot. L. R. 700, 7 Scot. L. T. 35.

In computing the average weekly earnings of a workman who had been employed for over a year in the same trade by the employer, a period of time during which trade was slack and the workman was absent from his work, due to the fluctuations of the trade, is not to be excluded, although such slackness was due somewhat to the conditions of war, but arose independently of the war. Griffiths v. Gilbertson [1915] W. N. (Eng.) 253, 84 L. J. K. B. N. S. 1312. Warrington, L. J., said that fluctuation of trade, even if caused by the war, are necessarily incident to the trade, and are not abnormal conditions within the meaning of schedule 1, clause 2(c).

12 In Bailey v. Kenworthy [1908] 1 K. B. (Eng.) 441, Cozens-Hardy, M. R., laid down the following rule: Where a workman is employed by the piece, and there have been stoppages of work during the year, owing to a break in the canal, accidents to machinery, bank holidays and trade holidays, it is error to divide the amount earned during the year by 52 in

to two weeks, and that the remainder of the interruptions from accidents and other causes amount to one week. It appears to me that the right method of proceeding is to say that the sum total of the earnings, namely, £83 2s. Id., was earned by fortynine weeks' work, and the average per week thus obtained will give the average wages earned in a week of full work. But there are only fifty weeks of full work in the year, and therefore the average earnings in a week would be less than the figure so obtained by one twenty-sixth part, or about 4 per cent. In other words, the earnings in a week of full work are to that extent higher than the average weekly earnings in the employment, because there is incident to it an enforced idleness of two weeks in the year. The week during which the workman was absent from work on account of breakdown in the works stands in a different position."

It is apparent that the amount arrived at by Cozens-Hardy, M. R., would exceed that arrived at by Fletcher Moulton, L. J. Farwell, L. J., did not deliver judgment. The question is left open so far as this case is concerned, since the parties subsequently agreed upon the amount and further proceedings in the court were not had. However, in the subsequent case of Anslow v. Cannock Chase Colliery Co. [1909] 1 K. B. (Eng.) 352, 78 L. J. K. B. N. S. 154, 99 L. T. N. S. 901, 25 Times L. R. 167, 53 Sol. Jo. 132, 2 B. W. C. C. 361, Cozens-Hardy, M. R., spoke with approval of the judg ment delivered by Fletcher Moulton, L. J., and said that there was no difference of opinion.

13 Ibid. (Eng.); 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.

14 Keast v. Barrow Haematite Steel Co. (1899) 15 Times L. R. (Eng.) 141, 63 J. P. 56, 1 W. C. C. 99.

period of employment the workman, for some reason, did not work. In a Scotch case where the workman had been employed for thirteen weeks, but had been absent for a fortnight because of illness, and for nearly another fortnight because of general trade holidays, the court of session held that the arbitrator was wrong in dividing the total amount earned by thirteen;15 such a holding would amount to an assumption that out of every thirteen weeks the workman would always be ill for two weeks and there would always be two weeks of trade holidays. The case is not very satisfactory because the court apparently took the view that the question was one of fact for the arbitrator; at least, the question of law was not answered, but remit was made to the arbitrator to proceed. The following principles may, however, be fairly drawn from the language of the Lord President: Ordinarily the average weekly earnings of a workman are to be ascertained by dividing the total amount earned during the relevant period of his employment by the number of weeks actually worked within that period, and if there are regularly recurring trade holidays when no work can be done, by deducting from the result above obtained a fraction equal to the fraction of the year during which, for this reason, no wages can be earned. Nothing is said as to how the absences

15 Carter v. Lang [1908] S. C. 1198, 45 Scot. L. R. 938, 1 B. W. C. C. 379.

16 Where the workman had been employed for two full weeks, one-half the amount he earned during those weeks is his average weekly earnings, although one of the weeks embraced Christmas day, upon which he earned nothing, so that his average weekly earnings for the two weeks were less than his earnings for one of those weeks. Faircloth v. Waring & Gillow (1906; C. C.) 8 W. C. C. (Eng.) 99.

17 In Perry v. Wright [1908] 1 K. B. (Eng.) 441, 1 B. W. C. C. 351, Fletcher Moulton, L. J., said: "For instance, two workmen in the same employment, at the same wages would, in my opinion, be entitled to have their average weekly earnings estimated at the same figure, even though the Wakes Week occurred in the period during which the one had been in the master's employment, and did not so occur in the case of the other. The master would be entitled to have regard taken to the fact that the average weekly earnings in such employ were somewhat less than the £2 by reason of the fact that only fifty weeks were worked out of the fiftytwo of which a year consists; but the rate of remuneration so arrived at must be applied equally to the case of each of the two workmen."

from illness were to be treated, but it seems plain from the language of schedule 1, 2 (c), that nothing should be deducted because of such time.

In an early case before the county court judge, it was held that where a holiday occurred during the two weeks in which the employee worked, the average weekly earnings were only one half of what he actually earned.16

There is dicta in an opinion of one of the judges of the English court of appeal that the average weekly earnings of a workman are not affected by the question whether or not a larger or smaller amount of enforced stoppages due to trade holidays occurs in the period which furnishes the material for the average.17

Absence from work because of some unavoidable cause, such as is referred to in ¶ 2 (c), must be ejusdem generis with illness; 18 that is, it must be a cause personal to the workman, and not have to do with the work, such as absences due to trade holidays.19

Absences of a few days in an employment lasting for one and one-half years may be disregarded in the case of a workman working by the hour.20 Absence of a workman from work because of a strike, not in his own trade, but in an allied trade, is an "unavoidable cause," and is to be deducted from the time when the workman could have worked.21 Absences due to unavoidable causes are 18 (Eng.) Ibid.

19 Carter v. Lang (Scot.) supra.

20 The court of appeal will dismiss an appeal from an award of the county court judge, who, in estimating the compensation to be paid to the dependent of a workman who has been paid by the hour, took the odd days at the beginning and at the end of the employment as full two weeks, and made no reduction for two periods of four days during which the workman was absent because of illness; the court said that they could not estimate the amount which he would have earned during the two periods in which he was absent because of illness, and that the error in taking the odd days as two full weeks was too trivial to be the subject of an appeal. Turner v. Port of London Authority [1913] W. C. & Ins. Rep. (Eng.) 123, 29 Times L. R. 204, 6 B. W. C. C. 23.

21 In computing the average weekly earnings of a workman who had been employed by an employer for upwards of one year at the same trade, a week during which the workman was absent from his work due to a strike, not in his own trade, but another trade with which his trade was related, should be excluded. Griffiths V. Gilbertson [1915] W. N. (Eng.) 253, 84 L. J. K. B. N. S. 1312.

In Scotland, on the other hand, it has been held that the proper construction of the decision of the House of Lords is that the actual earnings for a part of a week, if the period of work has been no longer, are to be taken as the earnings with reference to which the compensation is to be assessed.31 Where death ultimately resulted from injuries received during the workman's first week of employment, but he had continued to work during a second week, it was held that the earnings of the second week might be taken into account in calculating the amount recoverable.32 But where a workman, after working one week, is injured so soon after the beginning of the following week that no right to any wages had then accrued, the sum earned

30 Ayres v. Buckeridge [1902] 1 K. B. (Eng.) 57, 71 L. J. K. B. N. S. 28, 65 J. P. 804, 50 Week. Rep. 115, 85 L. T. N. S. 472, 18 Times L. R. 20.

This decision apparently overrules Peers v. Astley & T. Collieries Co. (1901; C. C.) 3 W. C. C. (Eng.) 185, in which it was held that where a workman had worked for less than a week, the amount actually earned is to be taken as the average weekly earnings.

Where a workman had worked part of a week only, his compensation is to be fixed with regard to what he would have earned had he worked for the entire week. Greaves v. Mulliners (1901; C. C.) 3 W. C. C. (Eng.) 189.

Where a meat porter secured work at the dock as a strike breaker, being taken on as an extra casual laborer, and was employed for twelve continuous days before his accident, and there was every probability that, but for his accident, he would have been continuously employed until the end of the strike, which lasted for five weeks after the accident, the county court judge is justified in taking the amount he earned for the first completed week as his average weekly earning. 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.

31 McCue v. Barclay (1902) 4 Sc. Sess.

6. Trade or calendar weeks.

In an English case, where a servant worked for six consecutive days, beginning on Wednesday and ending on the following Tuesday, the work being done under a daily engagement, no notice on either side being necessary to terminate the connection, but where it was also shown that there was a custom in the trade to pay weekly wages, it was held that compensation was properly awarded on the footing that the sum earned during the six days represented his average weekly earnings. The court considered that it was immaterial, for the purposes of the computation, that the trade week of the employer ended on the Thursday night, and negatived the contention of the employer that, for this reason, the average weekly earnings were half of the amount actually received.3 In another case, it is said that the num'ber of weeks constituting the divisor of Cas. 5th series, 909, 39 Scot. L. R. 690, 10 Scot. L. T. 116; Grewar v. Caledonian R. Co. (1902) 4 Sc. Sess. Cas. 5th series, 895, 39 Scot. L. R. 687, 10 Scot. L. T. 111.

35

32 Doyle v. Beattie (1900) 2 Sc. Sess. Cas. 5th series, 1166, 37 Scot. L. R. 915, 8 Scot. L. T. 131.

33 Nelson v. Kerr (1901) 3 Sc. Sess. Cas. 5th series, 893, 38 Scot. L. R. 645, 9 Scot. L. T. 83.

In Brown v. Cunningham (1904) 6 Sc. Sess. Cas. 5th series (Scot.) 997, it was held that where a workman was engaged for a fixed weekly wage, entered upon his work on a Saturday, and worked for the whole of the following calendar week, at the end of which his employment was terminated by his employers in consequence of an injury resulting in total incapacity, he was entitled to compensation, and that the fixed weekly wage was the basis for determining the amount of the weekly payment. The Lord Justice Clerk said: "I am satisfied that where there is a fixed contract, and it is fulfilled over a full week, the earnings so made by contract form the true basis for ascertaining the rights as to compensation. This is, I think, consistent with the view expressed in the House of Lords in the case of Lysons." See note 26, supra.

34 Williams v. Poulson (1899) 16 Times L. R. (Eng.) 42, 63 J. P. 757.

35 Watters v. Clover (1901) 18 Times L R. (Eng.) 60.

7. Continuity of the employment.

The words "period of his actual employment under the said employer," as used in paragraph 1 (a) (i), are construed as denoting the period of continuous employment immediately preceding the accident; and that period alone 36 Turner v. Port of London Authority (1913) 29 Times L. R. (Eng.) 204, 6 B. W. C. C. 23.

37 Fleming v. Lochgelly Iron & Coal Co. (1902) 4 Sc. Sess. Cas. 5th series, 890, 39 Scot. L. R. 684, 10 Scot. L. T. 114. The facts were that the claimant had been employed for three days in one week, and during the whole of the next two weeks, and on the Sunday of the fourth week. It was held that, in estimating his average weekly earnings, the total amount of his earnings must be divided by the number of calendar weeks, i. e., four, over which his employment extended. The court explained that the special point thus ruled upon had not been raised in an earlier case, in which the system of computation followed was the same as in the English case just cited. Peacock v. Niddric & B. Coal Co. (1902) 4 Sc. Sess. Cas. 5th series, 443, 39 Scot. L. R. 317, 9 Scot. L. T. 379.

In Campbell v. Fife Coal Co. (1902) 5 Sc. Sess. Cas. 5th series, 170, 40 Scot. L. R. 143, 10 Scot. L. T. 410, the decision in the Fleming Case was followed.

38 McCue v. Barclay (1902) 4 Sc. Sess. Cas. 5th series, 909, 39 Scot. L. R. 690, 10 Scot. L. T. 116.

39 Appleby v. Horseley Co. [1899] 2 Q. B. (Eng.) 521, 80 L. T. N. S. 853, 68 L. J. Q. B. N. S. 892, 47 Week. Rep. 614; Rothwell v. Davies (1903) 19 Times L. R. (Eng.) 423.

A workman who had been employed from time to time as his labor was required, and who had worked continuously from the 11th to the 28th of November, upon which latter day he was injured, but had not worked from the second to the 10th of that month, is entitled to compensation calculated with reference to his weekly earnings during the period of continuous employment. Giles v. Belford [1903] 1 K. B. (Eng.) 843, 72 L. J. K. B. N. S. 569, 51 Week. Rep. 692, 88 L. T. N. S. 754, 67 J. P. 399, 19 Times L. R. 422.

em

To enable a court to say that "a series of short periods [of work] should be taken together and treated as a continuous term, there must be some nexus to the employer for more than a year, when he left and went to Canada and was ployed at a much higher wage, and returned to England for the purpose of removing his family to Canada, and while there temporarily returned to his old employment and worked for nine weeks at an average wage considerably lower than that which he received during the previous employment, the county court judge has jurisdiction to compute the rate of remuneration from the period of the nine weeks during the time which the workman had been employed since his return from Canada, and was entitled to take into consideration the workman's intention to leave the country; and the facts that the wages would have been higher at another period of the year, and that he had been hindered by the weather, were immaterial. Godden v. Cowlin [1913] K. B. (Eng.) 590, 82 L. J. K. B. N. S. 509, 108 L. T. N. S. 166, 29 Times L. R. 255, 57 Sol. Jo. 282, [1913] W. N. 37, [1913] W. C. & Ins. Rep. 330, 6 B. W. C. C. 154.

40 Grewar v. Caledonian R. Co. (1902) 4 Sc. Sess. Cas. 5th series, 895, 39 Scot. L. R. 687, 10 Scot. L. T. 111.

41 There is no break in the workman's employment where he goes away on a holiday. Keast v. Barrow Haematite Steel Co. (1899) 15 Times L. R. (Eng.) 141, 63 J. P. 56, 1 W. C. C. 99.

In Jones v. Ocean Coal Co. [1899] 2 Q. B. (Eng.) 124, 68 L. J. Q. B. N. S. 731, 47 Week. Rep. 484, 80 L. T. N. S. 582, 15 Times L. R. 339, while it was declared that, while the average of the weekly earnings should not be reduced by taking into account a part of the year during which the relation of master and servant did not exist, a different rule was applicable where the relation continued, and the men did not work simply because there was nothing for them to do.

42 Williams v. Poulson (1899) 16 Times L. R. (Eng.) 42, 63 J. P. 757, 2 W. C. C.