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THE COLLIERY GUARDIAN.

March 17, 1916.

SOME RECENT DECISIONS UNDER THE
WORKMEN’S COMPENSATION ACT.

[Specially Contributed.]

Approved Societies and Workmen’s Compensation.

Section 11 (2) of the National Insurance Act, 1911, pro-
vides that where an injured person appears to be entitled to
compensation or damages under tile Workmen’s Compensa-
tion Act, 1906, or the Employers’ Liability Act, 1880, or
at common law, in respect of any injury or disease, and
unreasonably refuses or neglects to take proceedings to
enforce his claim, it shall be lawful for, the society or
committee concerned at its own expense to take such proceed-
ings in the name and on behalf of such person, in which
case any compensation or damages recovered shall be held
by the society as trustee for the injured person. This
means, of course, that in the event of proceedings railing, the
society or committee undertaking them would have to bear
the burden of costs, but a case that recently went to the
Court of Appeal, though not a colliery case, is worth noting
as an indication that an .approved society may risk a good
deal of unauthorised interference without incurring the
liability contemplated under the Act of 1911.

The “ workman ” concerned was a domestic servant , in
Southend. Before making any compensation claim she was
told by a National Insurance Act agent that as her insurance
card had not been properly stamped she would not be able
to get any money under that Act. In London' she saw the
approved society’s solicitor, who asked whether she wished
to claim compensation. The answer naturally being
affirmative, he wrote to the society’s local solicitors that
the case seemed to be one in which compensation proceedings
should at once be begun, and that if the1 applicant would
instruct them to act as. her solicitors the society would
give her financial assistance. Thereupon the local solicitors
sent the woman a retainer form to be signed by her, and
intimated that the proceedings must be instituted by her
in her own name, and that she would be liable to them as her
solicitors for costs,, but that they understood that the
approved society, having a financial interest in the matter,
were willing to indemnify her against any costs she might
have to pay. When the claim went before the county court
judge the question was raised on behalf of the employer that
the application was not really an arbitration at the instance
of the applicant, but proceedings instituted under section
11 (2) of the National Insurance Act, and that the applica-
tion should be dismissed on the ground that the condition of
the sub-section had not been complied with, inasmuch as it
had not been shown that the applicant had unreasonably
refused or neglected to take proceedings to enforce her claim
against her employer. In giving evidence, the applicant
said that she knew nothing of the local solicitors till she
received their letter; that she understood the retainer and
signed it, as she thought that unless she signed the form
the case would' not go on; that she thought the approved
society was taking up the case for her because she had not
got the benefit under the National Insurance Act ; and that
she never understood that she would be called upon to pay
any money, but thought that the approved society would
pay all the expenses. The county court judge held that the
proceedings were brought by the applicant and not by the
approved society, and the Court of Appeal affirmed the
decision.

The Master of the Rolls was of opinion that the case had
nothing to do with the Act of 1911, and that the question
whether the application was really that of the applicant
herself was simply a question of fact for the county court
judge. His lordship was also of opinion that there was
ample evidence on which the county court judge could so
find, that there had been no misdirection on his part, and
therefore that his decision could not be interfered with, con-
clusions to which his lordship would also have been led by
the signing of the retainer by the applicant and by the
letters she had written ; in his view it made no difference
that the approved society gave the applicant a partial
indemnity and found the money for the court and counsel’s
fees. In the course of the arguments the question of the
legal doctrine of “ maintenance ” had been raised in support
of the employer’s case, but the Master of the Rolls was of
opinion that the circumstance that the applicant had been
“ maintained ” by a third person would be no defence to
the compensation proceedings. While admitting that some
of the letters written by the approved society’s agents
invited hostile criticism, his lordship was of opinion that they
did not lead to the conclusion that the course adopted was
a deliberate attempt to escape the liability to pay costs
which is imposed on an approved society acting under
section 11 (2) of the National Insurance Act, 1911.
Incidentally his lordship made the interesting comment that
the provisions of that section are very obscure, an opinion
with which there is not likely to be any violent disagreement.

Bombardment Risks.

In Cooper v. North-Eastern Railway Company, the Court
of Appeal was recently called upon to consider whether a
condition arising directly from the war was a special risk
incidental to an employment. The circumstances were such as
might well occur in connection with colliery workers engaged
above ground. This claim originated from the bombardment
of Hartlepool in December 1914. An engine driver, who had
taken shelter behind some trucks, considered it necessary to
return to his engine to open the injector to prevent the boiler
tubes from being burned. In returning to his shelter he
was wounded by a shell splinter. The county court judge
held that the accident, while it arose “ in the course of ”
the employment, did not also arise “ out of ” it, as the work-
man was not exposed to any greater risk from the bombard-
ment than any other person in the open air at the time.
Invited by the Court of Appeal to say whether he thought it .
expedient to take into consideration any risk to which the
man was exposed from shell fire in having to return to the
engine from a place of safety, the county court judge replied
that, while, he had not specifically considered that question,
he had considered whether the man was exposed to greater
danger through being in charge of the engine, and came to
the conclusion that he was not. The Court of Appeal
affirmed the decision of the county court judge.

The Master of the Rolls, in giving judgment, said that,
the county court judge had followed principles laid down
both in the Court of Appeal and in the House of Lords. His
lordship then referred to the decisions in two well-known
lightning cases, as clearly distinguishing the conditions in
which there is or is not a special risk. One of these was an
Irish case; the other was Andrew v. Failsworth Industrial
Society [1904] 2 K.B. 32. In each case the man was doing
what he was employed to do, but that only established that
the accident arose “ in the course of ” the employment, and

not that it arose “ out of ” if. Reference was also made to
Warner v. Couchman [1912] A.C. 35, in which the House
of Lords held that the driver of a baker’s cart was not
entitled to compensation for an injury to his hand by frost-
bite, the ground of the decision being that the man was no
more exposed to the risk of frostbite than any other man
driving on a country road. His lordship then quoted the
following opinion expressed by himself in Craske v. Wigan
[1909] 2 K.B. 635, and approved by the House of Lords in
Plumb v. Cobden [1914] A.C. 68 :—“ It is not sufficient for
a workman to say, ‘ I should not have been injured unless I
had been where I was, and doing the work which I was
employed to do.’ ” In this case, his lordship went on to
say, the workman must prove that he was exposed by the
nature of his employment to some special or peculiar risk
beyond that of all other inhabitants of Hartlepool; no doubt
many, if not the great majority, of the persons injured by
the bombardment were doing the work they were employed
to do, but it would be straining the law to hold that in such
cases employers were liable for compensation. As illus-
trating the same principle, the Master of the Rolls also
referred to Mitchinson v. Day Brothers [1913] 1 K.B. 603,
and' especially the judgment of Lord Justice Hamilton.

Stone Throwing as a Special Risk.

Attention should be drawn to the recent decision of the
House of Lords in Clayton v. Hardwick Colliery Company
Limited. At the company’s colliery three slow-moving belts
placed on the same level a few yards apart, were used for
the conveyance of coal to the screens. Beside the belts boys
were stationed to pick out dirt and stones from the passing
coal. A stone thrown by one boy hit another so violently as
to destroy the sight of an eye. On a board at the top of the
stairs leading to the belts was a notice prohibiting stone-
throwing. It appeared that the boys sometimes threw stones
at one another to attract attention. In making an award
in favour of the injured boy, the county court judge found
that the stone was mischievously thrown, but he did not
know whether it was aimed at the boy who was struck,
and thought it. did not matter. He also considered that in
the circumstances, though the act was tortious, the practice
cf throwing stones was a special risk incidental to the employ-
ment. In tlie Court of Appeal, however, their lordships con-
sidered that it was impossible for them to say that this was
an accident that arose not only “ in the course of ” but “ out
of ” the employment. In the House of Lords, on the other
hand, the award of the county court judge was restored;

In the course of his judgment, Lord Loreburn said that
the finding of the county court judge was one of fact, which
their lordships had no jurisdiction to decide; what they had
to decide was whether there was any evidence on which the
county court judge could reasonably find as he did. That
did not imply that their lordships would have come to the
same conclusion; the facts were not. in dispute, but it did
not follow that, the conclusion of tlie county court judge was
one of law. In the Court of Appeal, their lordships were of
opinion that the accident did not arise “ out of ” the employ-
ment, but that, Lord Loreburn considered, was not the point;
to his mind the point was whether there was any material
to justify the'county court judge in finding as he did, and he
thought there was evidence which, coupled with the know-
ledge they were all supposed to possess as to the habits of
young boys, was sufficient to support such a conclusion on
a question of fact. It is only to be expected, of course, that
a distinction should be drawn between an accident which
results from a workman’s own misconduct, and one which
results from the misconduct of a fellow workman. In the
former case, a claim may be disallowed, especially if the
misconduct is of a flagrant character; in the latter case it is
unlikely to be disallowed. Admittedly there would be serious
hardship if the injured workman suffered through no fault of
his own, so that difficulty is avoided by the simple, but
unsatisfactory, expedient of passing on the hardship to the
employer, a further burden being thereby laid upon industry
and employers placed more at the mercy of irresponsible
workers.

“ Gassing ” and Delusional Insanity.

Sheriff Umpherston has issued judgment in one of the most
peculiar compensation actions which has arisen for some time.
The Fife Coal Company sought to have the compensation of
12s. paid per week, to Wilson. M‘Clure, miner, reduced.
M‘Clure was “ gassed ” with carbon monoxide in Lumphin-
nans Colliery nine years ago, while endeavouring to resctie
some companions. The Sheriff refuses the application, and
finds -no expenses due to or by either party. M‘Clure’s con-
pensation was revised in 1912. In a note, his lordship said
that physically the claimant was still able for work. The
important deterioration was in his mental condition, and he
was now incapable of the mental effort necessary to admit
of his working. He was of opinion that the claimant had
failed to prove that his total incapacity was the result of
his injury in 1906, and he was also of opinion that tlie
respondents had failed to prove that the claimant’s incapa-
city would have come to an end if he had returned to Work
when he could not do so. He was satisfied that there was a
time when the claimant could have gone back to some form
of work, and that if he had done so he would not have been
now in the condition in which he was. He had persistently
refused to work, and had consistently devoted himself to
inventing and perfecting—a novel form1 of disease peculiar to
himself, not known to the medical or any other profession,
the origin and manifestation of which proceeded from his
disordered brain. Three years ago his lordship had formed
an opinion that his mental condition was affected by the
“ gassing ” which he underwent, and he saw no reason now
to revise that opinion. The evidence now led confirmed
another opinion which he then expressed, viz., that his con-
dition was in part due to voluntary and conscious efforts to
what he professed to be symptoms of disease. Many eccen-
tricities were attributed to the workman in the course of the
evidence. He believed that his body, as the result of his
“ gassing,” was peculiarly sensitive to electricity, and certain
colours- gave him electric shocks. He looked upon himself as
being a person of superior intellect, and held the opinion that
he was being forced to work so that the Fife Coal Company
might exploit his brains. He believed himself to be a great
inventor, and had ideas for pumping air into mines miles
deep, while he also considered that by merely looking at a
ship he was able to navigate it better than the captain him-
self. He suffered from many other delusions.

Grimsby Coal Exports. — Returns for the week ending
March 10 show that the coal exported from Grimsby was as
follows :—Foreign : To Dieppe, 1,647 tons; and Esbjerg, 332
tons—total, 1,979 tons foreign, against 6,247 tons foreign
during the corresponding week last year.

MINING INDUSTRY AND MILITARY SERVICE.

At Cardiff, last week, the Glamorgan colliery tribunal
exempted all underground men, carpenters, smiths and
shoeing smiths employed by the Ocean Colliery Company.

At Leadgate, a colliery company successfully appealed on
behalf of its head clerk, who it was stated was indispensable
because of his technical knowledge, involving an acquaint-
ance with the Compensation Act, Insurance Act, Unemploy-
ment Act, royalties, waylea-ves and many other matters
incidental to colliery work, besides the keeping of various
kinds of books, the making-up of pay bills, the payment of
wages, etc. A similar application was heard at Annfield
Plain with reference to a pay and bill clerk and assistant
surveyor, who was the only clerk left in the colliery office
to assist the engineer in clerical work and also to assist in
surveying. The military representative remarked that
applicant was a useful man, but contended that he was not
’indispensable. It was stated that neighbouring collieries
had introduced lady clerks with fairly satisfactory results.
The clerk was exempted until May 6, in order that the
company should be given time to make other arrangements.

At a meeting of the Durham rural tribunal it was claimed
that the colliery cashier and assistant agent of the Framwell-
gate Coal Company was 'indispensable, and that any
substitute would be required to have had years of experience.
Two months’ postponement was granted.

The head clerk at Wheatley Hill Colliery has been granted
three months’ exemption. Total exemption was asked for.

A discussion as to the duties of colliery bill clerks resulted
from an appeal made by the Priestman Collieries Limited, in
respect of a bill clerk at Chester Moor. Mr. Morris, manager
of the colliery, being asked if a woman could not do the work,
replied that there were so many technicalities that he would
not like to ask a woman to undertake it. A member of the
tribunal then averred that the weighman and fore-overman
handed the bill clerk written particulars, and that it was only
necessary for the clerk to copy them from one book to another.
Another member remarked that women w’ere doing clerical
work in munitions factories, and he did not think that the
work under discussion could be much harder. Mr. Morris
replied that he believed that there were collieries where
women were employed, but he did not think that they acted
as bill clerks. He had only the one clerk in the office. The
application was refused.—A coke drawer at the same colliery,
for whom total exemption was asked, was granted conditional
exemption whilst following his present occupation. — The
same tribunal (at Chester-le-Street) took a rather different
line with reference 'to a coke oven loader at Pelton Fell. The
manager, in a written appeal, stated that, if the services of
the man were lost, it would be impossible to carry on the
coke ovens, and these would have to be closed. As there
was no personal.appearance in support of the appeal, it was
refused.

The whole of the appeals made by the Blackett and South
Tyne Collieries last week were granted, consideration having
been given apparently to the fact that a large proportion of
the men from these collieries are already with the Colours.

Workmen’s views of the colliery courts, and the working
of the Act generally, were heard at a meeting of trades
unionists employed at New Delaval Colliery last week. Many
of the intricacies of the appeal machinery were explained by
Mr. Aaron Walton, who has been appointed to the colliery
committee by the Delaval workmen, and some interesting
points arose. Up to the present, said Mr. Walton, they had
no guarantee that their employers would seek total or partial
exemption. A manager at a colliery such as their own, where
900 men were employed, might seek exemption for 600. The
workmen’s representatives did not favour the suggested
employment of women at the pit heads at all. So far as their
own colliery was concerned, he did not think such a thing
would come about. There were lots of old men who were
tired of hewing, who would be willing to do surface work, and
at some collieries, they had belt screens, where little labour
was required. It was mentioned that the men at the large
Ashington Collieries had secured exemption. Another speaker
said that if the manager sought exemption for 20 men, and
there were 20 men under similar circumstances for whom
exemption was not sought, they were surely not going to let
the manager have all the say in the matter. It was unani-
mously decided to send a letter to the clerk of the Blyth
tribunal, expressing strong disapproval of the action of that
court in holding its meetings in camera.

A meeting of tlie executive sub-committee of the Triple
Industrial Alliance was held in London last week. The
principal question under discussion was the position of
miners, railwaymen, and transport workers when the war
terminates and the troops are demobilised. Various sug-
gestions were put forward .as a means of dealing with the
situation. It was decided to submit them to the full
executive committees of the Miners’ Federation of Great
Britain, the National Union of Railwaymen, and the National
Transport Workers’ Federation at a joint conference.

The Rotherham tribunal has considered 10 claims made
by a colliery company, mainly on behalf of the clerical staff,
five of whom belonged to the wages department. It was
decided to exempt two of the four wages clerks, and one
month’s exemption was granted to the other two.

The miners’ tribunal at Doncaster has considered a
number of claims for exemption made by a local colliery
company. A month was allowed in the case of a speeder
who was said to be indispensable. In dealing with the
scrceners, the chairman said there were a lot of fine young
men of military age, and it was stated that the unattested
men would be called up in two months, the others in a
fortnight. Some of the men could not be replaced by older
men, it was stated, owing to the peculiar nature of the work.
In the case of a chemist, the only one left, it was stated that
he analysed samples of dust about twice a day, as occasion
required. Exemption was granted.

The allegation made at various tribunals that many young
men from uncertified occupations have flocked to the coal
mines in order to secure exemption from military service has
been emphatically repudiated by Mr. Robert Smillie,
president of the Miners’ Federation of Great Britain. Mr.
Smillie points out that nearly 300,000 miners have joined
the Colours, and that only half that number of workers have
replaced them. A large number of the new underground
workers are youths, the sons of men gone to the front, and
other workers include old men returned to the pit and
operatives whose' ordinary employment is affected by the
war. Mr. Smillie urges that the question now is to get more
men into the mines, to obtain the amount of coal required.

The Cumberland colliery recruiting court last week
exempted 216 underground men working at Wellington Pit,
Whitehaven, including a weighman, who, it was stated, could
speak French and Belgian, and was indispensable. Mr. T.
Cape, the men’s representative, elicited from the chairman
that the only question the court had to decide wTas whether a