the total earnings is not the number of | is to be taken into account in computing weeks from the pay day, but the number the amount of compensation recoverof weeks from the first day of employ- able.39 Any separate and distinct pement.36 But another view prevails in riods during which the servant may preScotland, where it has been held that the viously have worked are not to be taken week to be taken as the unit of division into consideration.40 But a temporary is not the calendar week, but the trade cessation of work does not necessarily or pay week of the particular employ- break the continuity of the employment ment.$7 If there is no trade week, the in such a manner as to exclude from the calendar week from Sunday to Saturday computation the period anterior to that is to be taken as the week with reference | cessation.4 41 Continuous employment may to which the average earnings are to be estimated.38

7. Continuity of the employment. The words "period of his actual employment under the said employer," as used in paragraph 1 (a) (i), are con- To enable a court to say that "a series strued as denoting the period of con- of short periods [of work] should be tinuous employment immediately preced- taken together and treated as a continuing the accident; and that period aloneous term, there must be some nexus to 36 Turner v. Port of London Authority | the employer for more than a year, when he (1913) 29 Times L. R. (Eng.) 204, 6 B. W. C. C. 23.

Where a workman had been working for 126.

join them. There must be some contract, proved of the course followed by an arexpress or implied, which raises a rea- bitrator, who disregarded a weekly sonable expectation of continuity in the deduction from the workman's wages employment. In the absence of that nex- which, under the employer's rules, was us, casual engagements on noncontract made on account of lamp oil supplied to days do not constitute one continuous him, and took the full amount of his employment, for they are not bound to-weekly wages as the basis of the award.45 gether." To bring about that consequence there must have been an actual interruption for the time being of the relation of master and servant. Whether there has been such an interruption is to be determined from the evidence, as a question of fact.44

" 43

8. Deductions.

This course has been approved by the House of Lords.46 In another case the court of appeal intimated its opinion, but did not expressly decide, that the value of the tuition given to an apprentice should not be taken into account in computing the amount of his "average weekly earnings." In another case it was held by the Scotch court of sessions that,

1947

In one case the court of appeal ap-in estimating the average earnings of a

43 Collins, L. J., in Hathaway v. Argus Printing Co. [1901] 1 K. B. (Eng.) 96. There a workman was under an agreement to work for his employers on the nights of Thursday and Friday in each week, for a period extending over two weeks, and at a fixed rate of wages for each night. During the rest of the week he worked, at times, for the same employers, when they had work to give him, and at other times for other firms carrying on a similar business to that of the employers. The workman was injured during the third week of his employment under the agreement, and an award was made in his favor, based on the weekly wages earned by him in respect of the two nights a week during which he worked under the agreement. On appeal it was held (1) that the employment for two nights a week was a continuous one, and that the earnings of those two nights were properly taken into account in determining the weekly payment to be made to the applicant; (2) that the amount received for casual work done for the same or different employers could not be taken into account in estimating the average weekly earnings of the applicant.

44 A workman was in the employment of the defendants as a riveter at a weekly wage of £2, 10s., from the 27th of September, 1895, to the 16th of March, 1896, when he was injured by an accident which incapacitated him for eleven months, during which time he did not work, and earned no wages. In February, 1897, the defendants employed him as a time keeper at a weekly wage of £1, 10s., and he continued in such employment until the 27th of September. 1898, when he was killed by an accident. Held, that for the purpose of calculating the compensation payable, the period of the workman's employment by the defendants had been less than three years, and that his "average weekly earnings" must be calculated with reference only to the period between the time when he resumed work and the date of his death. Appleby v. Horseley Co. [1899] 2 Q. B. (Eng.) 521, 68 L. J. Q. B. N. S. 892, 80 L. T. N. S. 853, 47 Week. Rep. 614, 15 Times L. R. 410.

A finding that the employment was not

continuous was held justifiable in a case where the workman had been absent eleven weeks on account of sickness, although when he resumed work no fresh engagement was entered into. Hewlett v. Hepburn (1899) 16 Times L. R. (Eng.) 56.

A period of six weeks during which the servant was disabled from work, owing to a previous accident, constitutes a break in the employment, and any compensation that may be due for a second injury received after resuming work must be ascertained with reference to the period which had elapsed between the resumption of work and the occurrence of the second accident, upon which the claim is based. Gibb v. Dunlop (1902) 4 Sc. Sess. Cas. 5th series, 971, 39 Scot. L. R. 750, 10 Scot. L. T. 184.

Such portion of the period of one year preceding the injury as occurred prior to a strike during which the injured workman was not employed, and after the termination of which he re-entered the employment under a new agreement, is not to be considered. 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.

45 Houghton v. Sutton Health & L. G. Collieries Co. [1901] 1 K. B. (Eng.) 93, 83 L. T. N. S. 472, 70 L. J. Q. B. N. S. 61, 65 J. P. 134, 49 Week. Rep. 196, 17 Times L. R. 54.

46 In estimating the compensation payable to an injured servant under the workmen's compensation act 1897, the word "earnings" in the act means the sum the workman receives for his labor when he comes to it properly equipped according to the general understanding and practice in the particular trade. Abram Coal Co. v. Southern [1903] A. C. (Eng.) 306, 72 L. J. K. B. N. S. 691, 89 L. T. N. S. 103, 19 Times L. R. 579. It was accordingly held that the earnings of a collier from whose weekly wages were deducted by agreement sums for cleaning lamps, supply of oil, sharpening wicks, and checking weights, were his full wages without the deductions. The decision of the court of appeal in the Houghton Case was approved.

47 Pomphrey v. Southwark Press [1901]

the House of Lords that allowances for expenses for board and lodging while the workman was away from home constituted part of his earnings.52 But this decision is no longer authority, in view of the express provision of schedule 1,

servant who was paid according to his
output, nothing is to be deducted in re-
spect to the value of the services of his
son, whom he employed as an assistant,
without paying him anything.48 But the
wages of a "drawer" or assistant, which
were, in accordance with custom, includ-¶ 2 (d), of the act of 1906.
ed in the remuneration given the miner,
are to be deducted.49 The cost of ex-
plosives used by a miner, although pro-
cured from the employer, who deducts
the cost thereof from the miner's wages,
is not to be deducted in estimating the
average weekly earnings of the miner.50
But the English court of appeal has held
that the cost of powder furnished a gang
of miners is to be considered and de-
ducted where the gang was paid for the
amount of sand and stone gotten out,
and the amount earned, less the cost of
the powder, was given to the head of
the gang, who gave to each miner his
aliquot part. This case, however, was
distinguished in various ways by the
judges delivering judgment.51

9. Remuneration other than regular
wages.

Under the act of 1897 it was held by

1 K. B. (Eng.) 86, 83 L. T. N. S. 468, 70 L. J. Q. B. N. S. 48, 65 J. P. 148, 17 Times L. R. 53.

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

49 M'Kee v. Stein [1910] S. C. 38, 47 Scot. L. R. 39, 3 B. W. C. C. 544.

50 Where a miner was in the habit of purchasing the explosives which he required for his work from his employers, and the price of these was retained by them from his wages, the cost of explosives does not represent a sum paid to the miner "to cover any special expenses." (Scot.) Ibid. 51 Shipp v. Frodingham Iron & Steel Co. [1913] K. B. (Eng.) 577, 82 L. J. K. B. N. S. 273, 108 L. T. N. S. 55, 29 Times L. R. 215, 57 Sol. Jo. 264 [1913] W. N. 16, [1913] W. C. & Ins. Rep. 230, 6 B. W. C. C. 1, Ann. Cas. 1914C, 183. Cozens-Hardy, M. R., said that there was a contract to pay the workman only his aliquot share of the net earnings; that is, the gross earnings of the gang, less the value of the powder. Buckley, L. J., said that each man was not paid according to the amount which he individually got out, and was not charged with the amount of powder which he used. Hamilton, L. J., said that the wages were fixed only after the powder had been deducted.

52 Midland R. Co. v. Sharpe [1904] A. C. (Eng.) 349, 73 L. J. K. B. N. S. 666, 91 L. T. N. S. 181, 20 Times L. R. 546, 53 Week. Rep. 114. Against the contention that it was the amount of "profits" which a workman made which was to be considered in fixing the compensation, Lord Davey said that it was the actual amount of his remuneration that was to be looked to, and there was not to be taken into account the

"Earnings in the employment" do not always come from the employer.53 So, where the giving and receiving "tips" are notorious, the money thus received is to be included in the "average weekly earnings." 54 The "average weekly earnings" do not include weekly payments by way of compensation for a previous accident,55 nor an amount received from the poor fund.56

In determining the average weekly earnings of a seaman who is paid a certain sum per week, and his board and lodgings on a ship, the cost to the employer of the food and a reasonable allowance for the lodging has been taken expenses which he had to incur in putting himself in a position to earn the money.

53 Penn v. Spiers [1908] 1 K. B. (Eng.) 766, 77 L. J. K. B. N. S. 542, 98 L. T. N. S. 541, 24 Times L. R. 354, 52 Sol. Jo. 280, 1 B. W. C. C. 401, 14 Ann. Cas. 335.

54 (Eng.) Ibid.

The county court judge in calculating the average weekly earnings of an employee may take into consideration tips obtained by the workman, although they were given for services outside the regular employment. Knott v. Tingle Jacobs & Co. (1911) 4 B. W. C. C. (Eng.) 55.

In Hains v. Corbet (1912) 5 B. W. C. C. (Eng.) 372, the court of appeal held that the finding of the county court judge as to the amount of wages which a workman was receiving at the time of the injury was conclusive, although the county court judge had admittedly made an error in refusing to take into consideration tips and commissions earned by the workman, so that the workman was not entitled to compensation upon resuming work, where his wages were higher than what the county court judge had in the first instance found them to be, although such wages were not as large as his prior wages, and the tips together were.

55 Gough v. Crawshay Bros. [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. 374.

56 The amount of the poor relief paid to a workman employed by a distress committee under the unemployed workman act 1905 is not to be taken into account in calculating the amount of the compensation payable by the distress committee. Gilroy v. Mackie [1909] S. C. 466, 46 Scot. L. R. 325.

The steward of a vessel is entitled to have a monthly bonus received from his employers when satisfied with his work, and the profits which he makes on the sale of whisky at the bar of the vessel, taken into consideration in fixing his average earnings.59 The right to use a uniform, which remains the property of the employer, must be treated as part of the workman's earnings.60

as the value to the workman.57 But in | been made, but had been discontinued.64 another case in the same court it was In each of these decisions it was held said that the true test was the actual that it applies to a case where the emvalue to the workman of the board furn- ployers had been voluntarily paying full ished by the employer.58 compensation, had terminated such payment, and the workman then commenced proceedings. The House of Lords further held that under 4, the right to require the workman, who has given notice of an accident, to submit to an examination, is not confined to a single examination.65 The mere fact that an employer has made no objection to the commencement of proceedings, on the ground that no notice of the accident was given by the workman, does not warrant the inference of a waiver by the employer of his right to compel the workman to submit to a medical examination, nor justify the arbitrator in imposing terms upon the employer, as a condition of his obtaining an order that the workman shall be examined.66

1. Medical examination of injured workman (¶¶ 4, 14, 15).

The first schedule provides that the employer may require the workman to submit to a medical examination under two different situations. First, by 4, when he has given notice of an accident and thereby asserts a claim to compensation; second, by ¶ 14, where he has been receiving compensation. These sections do not overlap, as they deal with different states of facts.6 61 Paragraph 15 covers the practice in either case. Upon the refusal of the workman to be medically examined, the county court judge is authorized to suspend proceedings pending examination, provided he finds the refusal to be unreasonable.62

The court of appeal laid down the rule that 4 applied in every case in which the workman's right to compensation had not been fixed by an agreement or by an award of an arbitrator.63 But the House of Lords held that 4 applies in every case in which compensation was not actually being paid at the time of the application, although such payments had

The view has been taken by the court of appeal that the words "receiving weekly payments," as used in ¶ 14, mean not only payments to a man who, up to the moment of his refusal, was getting week by week the money paid into his hands, but also to a man who, whether receiving it in money or not, is entitled to receive it under some enforceable right.67 The House of Lords subsequently, however, laid down the rule that ¶ 14 does not apply in a case in which payments were not being made at the time of the request for an examination, whether payments had formerly been made or not, and whether or not there was any award or agreement as to such payment.6

68

Under the act of 1897, a workman who while receiving compensation sub

57 Rosenqvist v. Bowring [1908] 2 K. B. | ies, and Longhurst v. The Clement (Eng.) (Eng.) 108, 77 L. J. K. B. N. S. 545, 98 L. supra. T. N. S. 773, 24 Times L. R. 504.

58 Dothie v. MacAndrew & Co. [1908] K. B. (Eng.) 803, 77 L. J. K. B. N. S. 388, 98 L. T. N. S. 495, 24 Times L. R. 326.

59 Skailes v. Blue Anchor Line [1910] W. N. 267, 27 Times L. R. 119, 55 Sol. Jo.

107.

60 Great Northern R. Co. v. Dawson [1905] 1 K. B. (Eng.) 331, 74 L. J. K. B. N. S. 271, 53 Week. Rep. 309, 92 L. T. N. S. 145, 21 Times L. R. 193.

61 Major v. South Kirkby, F. & H. Collieries [1913] 2 K. B. (Eng.) 145, 82 L. J. K. B. N. S. 452, 108 L. T. N. S. 538, 29 Times L. R. 223, 57 Sol. Jo. 244, [1913] W. N. 17, [1913] W. C. & Ins. Rep. 305, 6 B. W. C. C. 169, Ann. Cas. 1914C, 81.

62 Longhurst v. The Clement [1913] W. C. & Ins. Rep. (Eng.) 312, 6 B. W. C. C.

218.

63 Major v. South Kirkby, F. & H. Collier

64 Smith v. Davis [1915] A. C. (Eng.) 1528, 31 Times L. R. 356, [1915] W. N. 152, 59 Sol. Jo. 397.

65 The county court judge is justified in making an order suspending a workman's right to compensation where he refused to submit to a medical examination under ¶ 4 of the first schedule, at the time when he took proceedings to enforce his claim for compensation, although he had submitted to an examination at the time of making his claim, about three months previously. Smith v. Davis (Eng.) supra.

66 Osborn v. Vickers [1900] 2 Q. B. (Eng.) 91, 69 L. J. Q. B. N. S. 606, 82 L. T. N. S. 491, 16 Times L. R. 333.

67 Hamilton, L. J., in Major v. South Kirkby, F. & H. Collieries (Eng.) supra.

68 Smith v. Davis (Eng.) supra. Lord Loreburn, L. C., said: "I cannot see why they are not applicable to the case of a

mits to an examination by a medical expenses are paid.73 So, a workman who practitioner provided by the employer is receiving compensation does not obneed not submit to an examination by one of the referees appointed under the second schedule of the act, but may file a request for arbitration upon the employer's discontinuing the compensation. The provision of the act under which these cases arose (a portion of ¶ 11) was omitted from the corresponding paragraph (14) of the act of 1906.

60

The workman is not entitled as a matter of right to have his own doctor present at the examination.70 Whether or not he is so entitled is a question of fact to be determined by the arbitrator." It is a refusal to submit to an examination where the workman refuses to be examined except at his solicitor's office or in his presence.7 72 A workman does not necessarily obstruct a medical examination, within the meaning of the act, by going into another country and refusing to return for an examination unless his

74

struct the holding of a medical examination within ¶ 14, schedule I. of the act by enlisting and going with his regiment to India, since he was acting under military orders, and was not intending to reside permanently outside of the United Kingdom.7 But an injured. workman who is in receipt of weekly payments and who goes to Australia without intimating to his employers that he is going, or without leaving his address, obstructs the medical examination in the sense of these paragraphs of the first schedule.75 As to the effect of refusal to have an operation performed, see notes 26 et seq. ante, 139.

ject to a physical examination, provided his own physician was present.

There is no refusal to submit, under sched. I., ¶ 14, where the workman offers to submit to an examination at the surgery of his doctor. Harding v. Royal Mail Steam Packet Co. (1911) 4 B. W. C. C. (Eng.) 59. The court held that the workman's request was not unreasonable.

The report of a medical practitioner appointed for the purpose of the act is conclusive upon the question whether the incapacity arising from the injury has ceased.76 And the county court judge is justified in following the report of man who is receiving weekly payments by | 1059, 101 L. T. N. S. 299, it was held that oral agreement just as much as if a memo- a workman did not refuse to be examined, randum had been recorded, or as if the sums in telling a medical man sent by the emwere payable under an award. The pur-ployers to examine him, that he did not obpose seems to me to be exactly what the words say. If the employer for any reason does not make the weekly payment, he has no right to have a medical examination under these provisions, and he and the workman are left to their rights without the obligation on the workman of submitting to the examination imposed by these provisions. If, on the other hand, the workman is receiving weekly payments under the act, it does not signify whether there is a memorandum or an award or an unrecorded agreement, provided that the man is in fact being paid in respect of the rights conferred upon him by the act. It would be different if the money were being paid as an act of mere charity or benevolence, for in that case no part of the act has any application." 69 Niddrie & B. Coal Co. v. McKay (1903) 5 Sc. Sess. Cas. 5th series, 1121, 40 Scot. L. R. 798, 11 Scot. L. T. 275; Neagle v. Nixon's Nav. Co. [1904] 1 K. B. (Eng.) 339, 73 L. J. K. B. N. S. 165, 68 J. P. 297, 52 Week. Rep. 356, 90 L. T. N. S. 49, 20 Times L. R. 160; Strannigan v. Baird (1904) 6 Sc. Sess. Cas. 5th series, 784, 41 Scot. L. R. 609, 12 Scot. L. T. 152. Davidson v. Summerlee & M. Iron & Steel Co. (1903) 5 Sc. Sess. Cas. 5th series, 991, 40 Scot. L. R. 764, 11 Scot. L. T. 269, was disapproved in the other two Scotch cases which were decided in the other division of the court.

70 Morgan v. Dixon [1912] A. C. (Eng.) 74, 81 L. J. P. C. N. S. 57, 105 L. T. N. S. 678, 28 Times L. R. 64, 56 Sol. Jo. 88, [1912] S. C. (H. L.) 1, 49 Scot. L. R. 45, 5 B. W. C. C. 184, [1911] W. N. 220, [1912] W. C. Rep. 43.

72 Warby v. Plaistowe (1910) 4 B. W. C. C. (Eng.) 67. Cozens-Hardy, M. R., said that a solicitor's office is not, under ordinary circumstances, a proper place at which to hold a medical examination of a workman.

73 Where a workman receiving compensation fixed by agreement, who had twice submitted himself for examination by a medical practitioner provided by the employers, and been certified not to have recovered, immediately after the second examination went to Ireland to reside with his father, by refusing another examination unless his expenses were paid, where he offered to submit himself for examination to a medical man near the place where he was residing, did not refuse to submit himself to medical examination, or obstruct the same, in the sense of the workmen's compensation act 1897, sched. I., § 11. Baird v. Kane (1905) 7 Sc. Sess. Cas. 5th series (Scot.) 461.

74 Harrison v. Dowling (1915) 31 Times L. R. (Eng.) 486.

75 Finnie v. Duncan (1904) 7 Sc. Sess. Cas. 5th series (Scot.) 254.

76 Ferrier v. Gourlay Bros. (1902) 4 Sc. Sess. Cas. 5th series, 711, 39 Scot. L. R. 453, Scot. L. T. 517; McAvan v. Boase SpinS. ning Co. (1901) 3 Sc. Sess. Cas. 5th series,

71 In Devitt v. The Bainbridge [1909] 29 K. B. (Eng.) 802, 78 L. J. K. B. N.