ed Kingdom, he shall thereupon cease to be entitled to receive any weekly payment, unless the medical referee certifies that the incapacity resulting from the injury is likely to be of a permanent nature. If the medical referee so cer

do, refuses to submit himself for ex- (18) If a workman receiving a weekamination, by a medical referee to whom ly payment ceases to reside in the Unitthe matter has been so referred as aforesaid, or in any way obstructs the same, his right to compensation and to take or prosecute any proceeding under this act in relation to compensation, or, in the case of a workman in receipt of a weekly payment, his right to that week-tifies, the workman shall be entitled to ly payment, shall be suspended until such examination has taken place. Rules of court may be made for prescribing the manner in which documents are to be furnished or served and applications made under this paragraph, and the forms to be used for those purposes, and, subject to the consent of the Treasury, as to the fee to be paid under this paragraph [new].

receive quarterly the amount of the weekly payments accruing due during the preceding quarter so long as he proves, in such manner and at such intervals as may prescribed by rules of court, his identity and the continuance of the incapacity in respect of which the weekly payment is payable [new].

(19) A weekly payment, or a sum paid by way of redemption thereof, shall not be capable of being assigned, charged, or attached, and shall not pass to any other person by operation of law, nor shall any claim be set off against the same [same as ¶ 14 of the original act].

a

(22) In application of this act to Ireland the provisions of the county officers and courts (Ireland) act 1877, with respect to money deposited in the Postoffice Savings Bank under that act shall apply to money invested in the Postoffice Savings Bank under this act [¶ 17 of the original act].

(16) Any weekly payment may be reviewed at the request either of the employer or of the workman, and on such review may be ended, diminished, or increased, subject to the maximum above provided; and the amount of payment (20) Where under this schedule shall, in default of agreement, be set-right to compensation is suspended, no tled by arbitration under this act; Pro- compensation shall be payable in respect vided that where the workman was at of the period of suspension [new]. the date of the accident under twenty- (21) Where a scheme certified under one years of age, and the review takes this act provides for payment of complace more than twelve months after the pensation by a friendly society, the proaccident, the amount of the weekly pay-visions of the proviso to the first subs. ment may be increased to any amount of § 8, § 16, and 41 of the friendly not exceeding 50 per cent of the weekly societies act 1896, shall not apply to sum which the workman would probably such society in respect of such scheme have been earning at the date of the re- [ 15 of the original act]. view if he had remained uninjured, but not in any case exceeding £1 [same as 12, except that the proviso is new]. (17) Where any weekly payment has been continued for not less than six months, the liability therefor may, on application by or on behalf of the employer, be redeemed by the payment of a lump sum of such an amount as, where the incapacity is permanent, would, if invested in the purchase of an immediate life annuity from the National Debt Commissioners. through the Postoffice Savings Bank, purchase an annuity for the workman equal to 75 per cent of the annual value of the weekly payment, and, as in any other case, may be settled by arbitration under this act; and such lump sum may be ordered by the committee or arbitrator or judge of the county court to be invested or otherwise applied for the benefit of the person entitled thereto: Provided that nothing in this paragraph shall be construed as preventing agreements being made for the redemption of a weekly payment by a lump sum [elaboration of ¶ 13 of the original act].

b. Meaning of phrase “where death re

sults from the injury" (¶ 1a).

Death may be the result of the injury within the meaning of this paragraph of the act, even though, in fact, it may not be the natural or probable consequence 75 as where the death resulted thereof;

75 Dunham v. Clare [1902] 2 K. B. (Eng.) 292, 71 L. J. K. B. N. S. 683, 66 J. P. 612, 50 Week. Rep. 596, 86 L. T. N. S. 751, 18 Times L. R. 645, 4 W. C. C. 102. In this case a workman injured his foot and erysipelas supervened. Collins, M. R., said: "It is incumbent upon the applicant for compensation to show that there was accident which caused injury, and that death resulted from that injury. When the applicant has shown that, he has done all that is necessary to establish the claim

an

from a disease caused by the accident; and where it is caused by the second administration of an anesthetic for the performance of a second operation, necessary to secure the full results anticipated by the first operation. So, death may be found to be the result of an injury where such injury left the workman in a debilitated condition, and un-ly from the fact that a workman who had able to resist a disease subsequently intervening.78

was due to accident merely because they | from the injury, and the workman leaves had made an agreement with the work- dependents who were wholly dependent man during his lifetime to pay him com- on his earnings, the amount of compenpensation as long as his incapacity con- sation is to be a sum equal to his earntinued; it was still open for them to ings in the employment of the same show that the death was due to some employer during the three years next other cause.81 preceding the injury, or, where the employment has been less than the three years, a sum equal to 156 times his average weekly earnings during the period of his actual employment. But in neither case is the compensation to exceed £300 or be less than £150. The maximum and minimum amounts of compensation which are specified apply whether the workman has been working more than the three years or a less period.86

The burden of proof is on the applicant to show that the death or injury was due to the alleged accident.82 That death resulted from the accident may be proved by legitimate inference from the circumstances established, but there must be something more than guess, conjecture, or surmise.83

The court of appeal will not review the findings of fact by the county court judge as to whether the death was or was not caused by the accident.84 The county court judge is justified in relying upon the medical opinion of the assessor as to the cause of the death.85

c. Amount recoverable in case of death by persons dependent upon the workman's earnings (¶ 1a).

The effect of schedule I. (1) (a) (i) as a whole, is that, where death results 8 B. W. C. C. 69, [1915] W. N. 43, 59 Sol. | Jo. 233.

81 Cleverley v. Gaslight & C. Co. (1907; H. L.) 24 Times L. R. (Eng.) 93, 1 B. W. C. C. 82.

82 Dean v. London & N. W. R. Co. (1910) 3 B. W. C. C. (Eng.) 351.

83 The county court judge cannot find that death resulted from the accident where it appeared that death was the result of peritonitis following a perforation of the bowels, which perforation was shown upon a post mortem examination not to have been the result of an accident but of some unknown cause or of appendicitis from which the workman was suffering prior to the accident. Woods v. Wilson [1913] W. C. & Ins. Rep. (Eng.) 569, 29 Times L. R. 726, 6 B. W. C. C. 750.

In determining the sum, "reasonable and proportionate to the injury," which is to be awarded to partial dependents, the funeral expenses of the workman may be taken into consideration.87 What compensation is "reasonable and proportionate to the injury" to a dependent partially dependent upon the earnings of a deceased workman is a question of fact for the county court judge.88 proper case, he may award a partial dependent the sum of £300 compensation, committed suicide than anything else. The judge is not entitled to act upon a surmise of that nature. It is not at all a case in which there are facts from which an inference may be drawn."

In a

84 Cameron v. Port of London Authority (1912) 5 B. W. C. C. (Eng.) 416.

85 Lewis v. Port of London Authority [1914] 58 Sol. Jo. (Eng.) 686, 7 B. W. Č. C. 577.

86 Forrester v. M'Callum (1901) 3 Sc. Sess. Cas. 5th series, 650, 38 Scot. L. R. 448, 8 Scot. L. T. 486, reconsidering and disapproving Doyle v. Beattie (1900) 2 Sc. Sess. Cas. 5th series, 1166, 37 Scot. L. R. 915, 8 Scot. L. T. 131.

87 Bevan v. Crawshay Bros. [1902] 1 K. B. (Eng.) 25, 71 L. J. K. B. Ñ. S. 49, 85 L. T. N. S. 496, 50 Week. Rep. 98; Murray v. Gourlay [1908] S. C. 769, 45 Scott. L. R. 577; Hughes v. Summerlee & M. Iron & Steel Co. (1903) 5 Sc. Sess. Cas. 5th series (Scot.) 784.

Where a workman died four years after the accident, and two doctors said the death was due to the accident, and two others thought the death was not due to the accident, the county court judge is justified 88 An award of compensation by the counin holding that the death did not result ty court judge without stating how he arfrom the injury. Taylorsen v. Framwell-rived at that amount will not be disturbed gate Coal & Coke Co. [1913] W. C. & Ins. Rep. (Eng.) 179, 6 B. W. C. C. 56.

In Southall v. Cheshire County News Co. (1912) 5 B. W. C. C. (Eng.) 251, where a workman, while suffering from his injuries, went out of his house early in the morning, and his body was afterwards found in a canal more than 400 yards from the house, and there was no evidence as to how he came by his death, Cozens-Hardy, M. R., said: "The judge seems to have thought it was more likely that the man

on appeal where it appears that the amount awarded was £5 less than the maximum which could have been awarded, and there was evidence that the applicant, the widow of the deceased workman, was earning something less than 2s. a week herself, there being no evidence to show that the county court judge had misdirected himself. Osmond v. Campbell, [1905] 2 K. B. (Eng.) 852, 75 L. J. K. B. N. S. 1, 54 Week. Rep. 117, 93 L. T. N. S. 724, 22 Times L.

R. 4.

which is the maximum that could be awarded for total dependency.89

Where the county court judge awards a certain sum to a dependent, he must find whether or not the dependent was totally or partially dependent.90 But the existence of persons wholly dependent does not exclude partial dependents from sharing in the compensation recovered.91

to the workman during his lifetime.94 But a statutory election by a workman, as between his employer and a third person whose negligence caused the injury, is binding not only upon the workman, but also upon his dependents. See ante, 101.

Upon the death of the sole dependent, his representative is entitled to claim all that the dependent might have claimed. It has been so held in a case in which the claim had been made by the dependent during his lifetime,95 and also in a case in which the dependent had died without making any claim whatsoever.96

Dependents are entitled to compensation upon the death of the workman ai though he had been receiving compensation during his lifetime.92 They are not precluded from recovering the compensation due them under the act, by any action on the part of the workman, except that the employer is to be credited with any compensation which he had paid to the workman himself.93 And their right to compensation not being a derivative claim, they are not estopped by an award terminating compensation' 89 Cheverton v. Oceanic Steam Nav. Co. [1913] W. C. & Ins. Rep. (Eng.) 462, 29 Times L. R. 658, 6 B. W. C. C. 574. 90 Cheverton v. Oceanic Steam Nav. Co. 317, 81 L. J. K. B. N. S. 668, 106 L. T. N. (1913) 6 B. W. C. C. (Eng.) 253.

91 Robinson v. Anon (1904; C. C.) 39 L. J. (Eng.) 164, 6 W. C. C. 117, disapproving Fagan v. Murdoch (1899) 1 Sc. Sess. Cas. 5th series, 1179, 36 Scot. L. R. 921, 7 Scot. L. T. 113.

92 O'Keefe v. Lovatt (1901) 18 Times L. R. (Eng.) 57.

93 The mere fact that a workman who has been receiving compensation goes back to his work, nothing being said by either the workman or the employer as to the discontinuance of the compensation, does not show that he had abandoned his right to further compensation; and even if he had, he cannot deprive his dependents under the act, except that the employer is entitled to credit for what he had paid the workWilliams v. Vauxhall Colliery Co. [1907] 2 K. B. (Eng.) 433, 76 L. J. K. B. N. S. 854, 97 L. T. N. S. 559, 23 Times L.

man.

R. 591.

In Howell v. Bradford (1911) 104 L. T. N. S. (Eng.) 433, it was held that the act of an injured workman in signing a receipt as "being in full satisfaction and liquidation of all claims under the employers' liability act of 1880 and the common law in respect of the injuries, whether now or hereafter to become manifest, arising, directly or indirectly, from an accident which occurred" to him, would not bar his dependents from subsequently claiming compensation under the act, they being barred merely from recovering under the act to the extent of the benefits received by him.

Statements of the deceased workman are not admissible as against his dependents, since the applicants have, as dependents, a direct statutory right against the employer, and the applicants do not de

Where the mother of a deceased workman received from him a regular weekly allowance and also received weekly relief from the guardians of the poor, the proper method of computing the compensation is to take the deceased's earnings on the three year basis and deduct from that the amount the dependent rive their title to compensation by derivation from the workman. Tucker v. Oldbury Urban Dist. Council [1912] 2 K. B. (Eng.)

S. 669, [1912] W. C. Rep. 238, [1912] W. N. 96, 5 B. W. C. C. 296.

94 An award terminating weekly payments to an injured workman is not a bar to a claim for dependents filed after the death of the workman. Jobson v. Cory (1911) 4 B. W. C. C. (Eng.) 284.

95 If the sole dependent dies after making a claim, but before the award is made, the claim survives. Darlington v. Roscoe [1907] K. B. (Eng.) 219, 76 L. J. K. B. N. S. 371, 96 L. T. N. S. 179, 23 Times L. R. 167.

96 United Collieries v. Simpson [1909] A. C. (Eng.) 383, 78 L. J. C. P. N. S. 129, 101 L. T. N. S. 129, 25 Times L. R. 678, 53 Sol. Jo. 630, [1909] S. C. (H. L.) 19, 46 Scot. L. R. 780, 2 B. W. C. C. 308, affirming [1908] S. C. 1215, 45 Scot. L. R. 944, I B. W. C. C. 289. In this case the dependent died without making any claim, and a claim was subsequently filed in behalf of her personal representative. The Lord Chancellor said: "The act does not require that the dependent himself should make the claim, and I do not see why that right to make the claim should not pass to the executor. It seems to me, therefore, that, as the person represented by the respondent was the only dependent, her representative may properly claim all that she was entitled to, the right being transmissible as property. If there had been several dependents, the law would not be different, but the discretion of the county court judge or sheriff in apportioning might very likely render the proceedings unprofitable. No doubt this act was intended to save dependents from the loss they might sustain by being deprived of the support they previously had from the deceased workman,

would have received from the guardians workman's wages, in the absence of an during the three years.97 express contract.1

as

In determining the question of the dependency of a father on the earnings of his son, the county court judge is not precluded by law from making a deduction in respect of the cost of the son's maintenance.98 But he is not precluded from taking into account against the cost of maintenance of the son, the pecuniary benefit, if any, of the services rendered by the son to the father in the conduct of the latter's business.99 Help given by younger members of the family who live together should not be treated as a deduction from a and if the dependents themselves die they | require it no longer. And it seems anomalous to enforce payment when no dependent is still living to require support. The act, however, provides a fixed sum, and this must be taken as the statutory provision, whether in the event it is needed or not. Perhaps if this result had been foreseen, it might have been guarded against; but that cannot affect the judgment of a court of law."

The above decision disapproves O'Donovan v. Cameron [1901] 2 I. R. 633, 34 Ir. Law Times, 169, where it was held that where the sole dependent of a deceased workman dies after having served notice of the accident, but before any claim for compensation has been made, the right to recover compensation does not pass to the personal representative of the dependent.

Harvey v. North Eastern Marine Engineering Co. (1902; C. C.) 5 W. C. C. (Eng.) 30, 113 L. T. Jo. 499, holding that the personal representative of a dependent who died after filing a claim, but before an award was made, cannot continue the proceeding, as the dependent's right to compensation died with him, must be considered as overruled.

97 Byles v. Pool (1908; C. C.) 126 L. T. Jo. (Eng.) 287, 73 J. P. 104, 53 Sol. Jo. 215, 2 B. W. C. C. 484.

98 Tamworth Colliery Co. v. Hall [1911] A. C. (Eng.) 665, 105 L. T. N. S. 449, 55 Sol. Jo. 615, 4 B. W. C. C. 313, reversing [1911] 1 K. B. (Eng.) 341, 80 L. J. K. B. N. S. 304, 103 L. T. N. S. 782, 4 B. W. C. C. 107. Osmond v. Campbell [1905] 2 K. B. (Eng.) 852, 54 Week. Rep. 117, 22 Times L. R. 4, 75 L. J. K. B. N. S. 1, 93 L. T. N. S. 724, in so far as it may hold that upon the question of partial dependency the county court judge is not entitled to deduct from the earnings of a deceased workman the cost of his maintenance, was overruled.

The court of appeal has refused to interfere with the conclusion of the county court judge where, in the case of a person partially dependent upon a deceased workman, he estimated the workman's earnings upon the whole amount received, and not

As to the manner of paying the money to the dependent, see post, 162. And as to the determination of the question, Who are dependents? see ante, 121. d. Amount recoverable by workman totally or partially incapacitated (T 1b).

The expression "incapacity for work" includes incapacity to get work as well as incapacity to do work. So a workman may be incapacitated within the meaning of the statute although he is able to resume his work, if his condition is such that he cannot get work because upon the part thereof that went to the support of the dependent. Littleford v. Connell (1909) 3 B. W. C. C. (Eng.) 1. The decision in Osmond v. Campbell [1905] 2 K. B. (Eng.) 852, was followed.

See also O'Neill v. Bansha Co-op Agri. & Dairy Soc. [1910] 2 I. R. 324, 44 Ir. Law Times, 52.

99 Tamworth Colliery Co. v. Hall [1911] A. C. (Eng.) 665, 105 L. T. N. S. 449, 55 Sol. Jo. 615, 4 B. W. C. C. 313.

1 Roper v. Freke (1915) 31 Times L. R. (Eng.) 507.

In

2 An accident which necessitates the removal of the left eyeball causes an "incapacity for work," although the sight of the eye had previously been lost, where the workman is unable to obtain work as being "manifestly a one-eyed man." Ball v. Hunt [1912] A. C. (Eng.) 496, 81 L. J. K. B. N. S. 782, 106 L. T. N. S. 911, 28 Times L. R. 428, 56 Sol. Jo. 550, [1912] W. N. 149, [1912] W. C. Rep. 261, 5 B. W. C. C. 459, reversing [1911] 1 K. B. 1048, 80 L. J. K. B. N. S. 655, 104 L. T. N. S. 327, 27 Times L. R. 323, 55 Sol. Jo. 383, 4 B. W. C. C. 225. a dissenting opinion in the court of appeal, Fletcher Moulton, L. J., whose views were in effect adopted in the House of Lords, said: "In the phrase 'incapacity for work' in sched. I. (1) the word 'work' is used in the sense of doing work as a workman, i. e., for wages or other remuneration. It is to the capacity for earning wages as a workman that the whole scheme of the act relates. It is beyond question that the amount of the compensation depends on the change produced in this, and, in my opinion, the right to receive compensation depends on it also. A capacity to do certain physical acts, but not to do them as a workman for wages, is not in my opinion a capacity to do that work within the meaning of the act. It follows, therefore, that as a general principle a workman has brought himself within the act when he shows that by reason of an accident arising out of and in the course of his employment he has sustained an injury which lessens his earning capacity, and this, whether or not it has diminished his physical capacity for doing his work."