this point is dealt with, in the case of a public authority, by a special definition of "trade or business."

Compensation under the Act being based on "earnings," the gratuitous performance of work is not within the Act.

A sub-contractor is not a "workman " within this definition: Simmons v. Faulds (1901), 17 T. L. R. 352; Vamplew v. Parkgate, &c. Co., Ltd., [1903] 1 K. B. 851; nor is a member of a mining partnership, who, by arrangement with his partners, works in the mine as a working foreman, and receives weekly wages out of the profits of the business: Ellis v. Joseph Ellis & Co., [1905] 1 K. B. 324; nor is the certificated manager of a coal-mine, who is paid a yearly salary, and who, though his duties require his presence in the mine, is not required to engage in manual labour: Simpson v. Ebbw Vale, &c. Co., [1905] 1 K. B. 453.

"Dependants" means such of the members of the workman's family as were wholly or in part dependent upon the earnings of the workman at the time of his death, or would, but for the incapacity due to the accident, have been so dependent, and where the workman, being the parent or grandparent of an illegitimate child, leaves such a child so dependent upon his earnings, or, being an illegitimate child, leaves a parent or grandparent so dependent upon his earnings, shall include such an illegitimate child and parent or grandparent respectively.

"Member of a family" means wife or husband, father, mother, grandfather, grundmother, step-father, step-mother, son, daughter, grandson, granddaughter, step-son, step-daughter, brother, sister, half-brother, half-sister (sect. 13).

The words in italics are new.

These definitions apply to Scotland as well as England and Ireland, and add collateral relations to those mentioned in the Fatal Accidents Act, 1846, s. 5.

"Dependency" is a question of fact: Main Colliery Co. v. Davies, [1900] A. C. 358; Rees v. The Penrikyber, &c. Co., [1903] 1 K. B. 259.

See the notes on sect. 13, infra.

As to the application of this Act to workmen under the Crown, see sect. 9; and to "seamen," &c., see sect. 7.

Defences to Claims.

The following are the chief defences available to an employer:(A) That the injury is attributable to the "serious and wilful misconduct" of the workman (sect. 1, sub-sect. (2) (c)). But, under this Act, this defence is not available in cases of "death or serious and permanent disablement."

Misconduct or contributory negligence will not suffice, it must

be "serious and wilful;" and the accident must be "attributable " thereto see Glasgow Coal Co. v. Sneddon (1905), 7 F. 485.

:

"Wilful misconduct " has been defined as "misconduct to which the will is a party; something opposed to accident or negligence; the misconduct, not the conduct, must be wilful": Lewis v. Great Western Rail. Co. (1877), 3 Q. B. D. 195, 206, per Bramwell, L. J.; see In re Mayor of London and Tubbs' Contract, [1894] 2 Ch. 524.

This defence is only available against the individual guilty of the misconduct. But if others are involved in the consequences of the misconduct they may find it difficult to prove that the accident arose "out of and in the course of the employment' see notes on p. 652, infra.

The misconduct is a question of fact in each case: Rumboll v. Nunnery Colliery Co. (1899), 80 L. T. 42; Johnson v. Marshall, Sons &Co., Ltd., [1906] A. C. 409. And the burden of proving it is on the employers: Johnson v. Marshall, ubi sup.

A boy, employed to grease truck-wheels, meddles with a pointslever on a railway, in an interval of his work: Harrison v. Whitaker Brothers (1899), 16 T. L. R. 108; a fireman in a mine, when taking his report to the office, rides, against regulations, in a truck: Rees v. Thomas, [1899] 1 Q. B. 1014; a workman leaves a shed carelessly, it may be, by a forbidden door: McNicholas v. Dawson, [1899] 1 Q. B. 773; a boy leans over a circular saw to pick up a screw: Reeks v. Kynoch (1902), 18 T. L. R. 34. In all these cases there was a finding, either undisturbed or approved on appeal, that there was not "serious and wilful misconduct." In Rumboll v. Nunnery Colliery Co. (1899), 80 L. T. 42, the Court of Appeal held that the breach of a rule (as to propping the roof) made under the Coal Mines Regulation Act, 1887, is not per se conclusive evidence of "serious and wilful misconduct": see McNicol v. Speirs, Gibbs & Co. (1899), 36 Sc. L. R. 428. So in Johnson v. Marshall, Sons & Co., Ltd., [1906] A. C. 409, the workman's breach of a rule, which did not in itself involve danger, was held not to be evidence of "serious and wilful misconduct."

"The misconduct, therefore, is reduced to the bare breach of a rule, from which breach no injuries, actionable or otherwise, could reasonably be anticipated. Does this amount to serious misconduct? In my opinion it does not" per Lord James of Hereford, l. c. p. 413.

Lord Atkinson (p. 416) says:

If the word serious' used in this connection is to have any force or weight at all given to it, it must, I think, be held to mean at least that when

the risk of loss or injury resulting to any person or thing from the doing of any particular act is very remote, or where that loss or injury, even if probable, would be trivial in its nature and character, the doing of that act, however wilful, would not amount to serious misconduct' within the meaning of this statute, unless, indeed, the indirect influence of the act done on the discipline of the factory is to make every transgression serious."

But where a miner, after warning, persisted, with knowledge of the possible consequences, in doing the very thing against which he was warned, this defence defeated his claim: John v. Albion Coal Co., Ltd. (1902), 18 T. L. R. 27. An engine-driver left the footplate of his engine and mounted the tender while the engine was in motion, in breach of a rule of the railway company, well-known to him, prohibiting the act, and was killed by collision with a bridge. The county court judge found there was no justification for his act :-Held, that there was evidence upon which the judge might properly find that he was guilty of “serious and wilful misconduct": Bist v. London & South Western Rail. Co., [1907] A. C. 209.

(B) That the accident did not arise "out of and in the course of the employment " (sect. 1, sub-sect (1) ).

The onus of proving that the accident arose "out of" as well as "in the course of " the employment is on the applicant: Pomfret v. Lancashire & Yorkshire Rail. Co., [1903] 2 K. B. 718.

The question is one of fact; and if there is evidence to support the arbitrator's finding, that finding cannot be disturbed: Pomfret v. Lancashire & Yorkshire Rail. Co., ubi sup.; Losh v. Richard Evans &Co., Ltd. (1903), 19 T. L. R. 142.

In dealing with this point the control of the employer over the place where the accident occurs is an element to be considered. In Holness v. Muckay and Davies, [1899] 2 Q. B. 319, the Court of Appeal refused compensation on this ground to the widow of a workman who was killed by a train on the main line, which adjoined the siding upon which he was at work. Suppose carelessness or rashness or breach of regulations on the part of a workman in going from one part of his master's premises to another, that by itself will not disentitle him from recovering compensation, though probably there may be acts of negligence on the part of a workman so entirely outside his employment as to prevent an accident following on the negligent act from being described as arising out of his employment": McNicholas v. Dawson and Son, [1899] 1 Q. B. 773, 779, per Collins, L. J.

66

This defence succeeded where a workman was injured while

doing something, during work hours, merely for his own pleasure : Smith v. Lancashire & Yorkshire Rail. Co., [1899] 1 Q. B. 141. In such cases, the decisive question is "Did the particular Act constitute a break in the employment?" A workman was held entitled to recover compensation who was injured while eating his dinner on his master's premises, though he was paid by the hour, and the dinner-hour was excluded from the computation of his wages: Blovelt v. Sawyer, [1904] 1 K. B. 271. See Morris v. Mayor, &c. of Lambeth (1905), 22 T. L. R. 22.

A

In the cases of accidents occurring to workmen when going to or coming from work, the decision turns on the question: "When did the employment begin," or "cease," as the case may be ? That is a question of fact: Smith v. South Normanton Colliery Co., [1903] 1 K. B. 204. The proposition that the "employment" does not begin till the man's actual work begins is a misdirection in law: Sharp v. Johnson, [1905] 2 K. B. 139. workman was killed outside his master's premises, going to his work, before work-hours: Holness v. Mackay and Davies, [1899] 2 Q. B. 319; a workman was injured on a private railway belonging to his employers, used by the workmen at their will, as a convenience for getting home: Davies v. Rhymney Iron Co., Ltd. (1900), 16 T. L. R. 329 (r); an engine-driver was killed on his way to the engine shed from a visit which took him out of his way and which had been paid for purposes of his own private business : Benson v. Lancashire & Yorkshire Rail. Co., [1904] 1 K. B. 242. In all these cases the claim for compensation failed. But it is different where the contract of employment expressly or impliedly includes the going to or coming from work: Holmes v. Great Northern Rail. Co., [1900] 2 Q. B. 409; Cremins v. Guest, Keen & Nettlefolds, Ltd., [1908] 1 K. B. 469. See Holness's Case, ubi sup. It must be remembered that the element of physical contiguity to the place of employment at the moment of injury, in so far as it was involved in the words "on, in or about," in sect. 7 of the Act of 1897 (see Powell v. Brown, [1899] 1 Q. B. 157), does not exist under this Act.

The injury must be connected with the work which the applicant is employed to do. Thus a lad employed to make balls of clay, who injured himself in trying to clean machinery, which he was forbidden to touch, failed to get compensation: Lowe v.

(r) This point is considered, in connection with the defence of common employment" raised to a claim under Lord Campbell's Act, in Coldrick v. Partridge, Jones & Co., Ltd. (1908), 24 Times L. R. 646,

Pearson, [1899] 1 Q. B. 261; Losh v. Richard Evans & Co. (1903), 19 T. L. R. 142; see Harrison v. Whitaker (1899), 16 T. L. R. 108. Where a carpenter, whose duty it was to sharpen his tools at a grindstone turned by machinery, which he was forbidden to touch, was injured while replacing the band on the machinery, the Court of Appeal refused to disturb the finding that the accident arose "out of and in the course of the employment": Whitehead v. Reader, [1901] 2 K. B. 48 (s). In Rees v. Thomas, [1899] 1 Q. B. 1014, a mine-fireman was going to the office with his report in a horse-tramway truck which belonged to his master: the horse bolted and he was injured trying to stop it. The Court of Appeal decided in his favour on two grounds: (1) that he was in fact engaged upon his employment when the accident happened, and (2) that it is a part of every servant's employment to act in an emergency for the interests of his master.

Where the injury is caused by a danger, the risk of exposure to which is a necessary or recognized concomitant of the particular employment, this defence fails: as where an engine-driver is injured in consequence of a stone thrown by a boy hitting his engine: Challis v. London and South Western Rail. Co., [1905] 2 K. B. 154; or where a bricklayer, working on a scaffolding, is struck by lightning: Andrew v. Failsworth, &c., [1904] 2 K. B. 32; or where a man, working on the edge of a hatchway, is seized by epilepsy, and falls down the hatchway: Wicks v. Dowell, [1905] 2 K. B. 225.

With regard to accidents arising from the act or negligence of a third party, see sect. 6 of the Act and the notes thereon, infra. To entitle the workman to compensation under that section the injury must be one within sect. 1, sub-sect. (1). An injury by accident due to the tortious act of a fellow-servant, which has no relation to the employment, does not arise "out of" the employment: Armitage v. Lancashire & Yorkshire Rail. Co., [1902] 2 K. B. 178.

(C) That the employment is not within the Act. (See the notes on "Persons to whom the Act applies," at p. 648, supra ; and on sect. 13, infra.)

(D) That the injury is not a personal injury by "accident" (sect. 1, sub-sect. (1)).

(s) This decision turned partly on the form of the county court judge's note.