Risk to

Loss of one Eye by Accident Remaining Eye - Suitable employment Suspensory Award.]-A workman met with an accident arising out of and in the course of the employment as steam-hammer man, which caused the loss of one eye. Subsequently he recovered sufficiently to be physically able to do his old work, and his employers offered to take him on again in the same work at his old wages. The workman objected to doing the old work on account of the risk at that particular work to his remaining eye, and the arbitrator found that his position in the labour market would be affected detrimentally by the loss of one eye; that the work offered would be dangerous to his one eye; and that it was therefore not suitable employment within Schedule I. clause 3 of the Workmen's Compensation Act, 1906. He awarded in favour of the workman :-Held, that the arbitrator was justified in so awarding.

64

Average weekly earnings" Earnings Varying with Season-Scaffolder-Method of Computation.] A scaffolder was employed during the winter by a firm, and at the end of seven weeks he met with an accident arising out of and in the course of his employment. The rate of pay for scaffolders was 84d. an hour. His average weekly earnings over this period of seven weeks were about 11. 7s. 8d., while those of a scaffolder in the district, taken over a period of twelve months, were about 11. 15s. 9d., longer hours being worked in summer than in winter. Scaffolders were never employed for long by the same employer, but went from job to job. In an application by the scaffolder for compensation under the

Workmen's Compensation Act, 1906,-Held, that, as the result of computing the average weekly earnings by reference to the actual period of employment by the firm under Schedule I. clause 1 (b) of the Act was not to arrive at the normal rate of remuneration, the County Court Judge was entitled, by virtue of Schedule I. clause 2 (a) of the Act, to hold that it was impracticable, by reason of the shortness of the time during which the workman had been in the employment of the firm, to compute the rate of remuneration in that way, and was entitled to award compensation by reference to the average weekly earnings of a person in the same grade employed in the same class of employment and in the same district. Perry v. Wright (77 L. J. K.B. 236; [1908] 1 K.B. 441) and Carter v. Lang ([1908] S. C. 1198) applied.

Cox v. TROLLOPE, 85 L. J. K.B. 1652; [1916] 2 K.B. 682; [1916] W.C. & I. Rep. 270; 115 L. T. 394; 32 T. L. R. 670-C.A.

- Computation - Workman Earning Moneys Partly Within Act and Partly Outside Act.]The average weekly earnings under the Workmen's Compensation Act, 1906, of a man who earns part of his living by working under a contract of service within the Act, and the rest of it by work done outside the Act, are his average weekly earnings under that contract of service only, and regard cannot be had to the rest of his earnings. If it is practicable, his average weekly earnings must be ascertained under Schedule I. paragraph 1 (b) of the Act, and regard cannot then be had to the earnings of a man in the same grade under Schedule I. paragraph 2 (a) of the Act. SALES v. ABBOTT, 85 L. J. K.B. 1666; [1916] W.C. & I. Rep. 124; 114 L. T. 819; 32 T. L. R. 374-C.A.

The average weekly earnings of a man for work done outside the Act cannot be taken into consideration in computing his average weekly earnings under the Act.

ALDERMAN v. WARREN, 85 L. J. K.B. 1442; [1916] W.C. & I. Rep. 266; 115 L. T. 363; 32 T. L. R. 665-C.A.

Compensation Received by Workman in His Lifetime-Death by Accident-Earnings During Past Three Years-Deduction-Maximum Sum Payable—“ Such sum."]-Where a workman meets his death by accident, and weekly payments of compensation have been made to him by his employers before his death, and his earnings during the three years next preceding the injury exceed 3001., the weekly payments SO made must, under Schedule I. clause 1 (a) (i) of the Workmen's Compensation Act, 1906, be deducted from 3001., the maximum sum payable, and the balance is the sum payable by way of compensation to his dependants. Such sum in Schedule I. clause 1 (a) (i) means 3001.. and not the total amount of his earnings, if exceeding 300l., so as to entitle the dependants

-Employment by Same Employer for Three Years next Preceding the Injury Absence from Work During Period of Three Years.]— The definition of the words "employment by the same employer "' in Schedule I. (2) (c) of

the

Workmen's Compensation Act, 1906, applies to those words in Schedule I. 1 (a) (i), and must be followed in considering the amount of the average earnings of a deceased workman, upon which compensation is to be awarded under the Act. A workman had been in the employment of the same employers in the same grade for three years before he was killed by an accident arising out of and in the course of his employment; but during that period he had been absent from work on 163 working days from sickness, injury, and other causes, the longest period of absence being six weeks -Held, that the compensation due to his dependant must be calculated on his average weekly earnings during the three years, and not on the amount actually earned by him during that period.

GREENWOOD v. NALL & Co., 86 L. J. K.B. 17; [1916] W.C. & I. Rep. 367; 61 S. J. 54; 33 T. L. R. 43-H.L. (E.)

Decision of the COURT OF APPEAL (84 L. J. K.B. 1356; [1915] 3 K.B. 97; [1915] W.C. & I. Rep. 346) reversed. Ib.

-Employment for Less than Three Years.]In a claim for compensation by the dependants of a deceased workman the only evidence of the earnings of the deceased was a pay sheet, which shewed that he had been in the employment of the same employers for twenty-six weeks before his death, and that during that period his weekly earnings had varied, being over 11. in some weeks, and only a few shillings in others -Held (O'CONNOR, M.R., diss.), that for the purpose of ascertaining the amount of compensation under section 1 (a) (i) of the First Schedule to the Workmen's Compensation Act, 1906, the County Court Judge was bound to calculate the deceased's average weekly earnings by dividing the total amount actually earned by twenty-six, the number of weeks worked, and was not at liberty in making the calculation to leave out of account weeks in which only a small sum appeared to have been earned. Perry v. Wright; Bailey v. Kenworthy (77 L. J. K.B. 236; [1908] 1 K.B. 441) considered.

GILL v. GRAINGER, [1916] 2 Ir. R. 354C.A.

-Attendant in Lunatic Asylum-Permanent Partial Incapacity - Payment, Allowance, or Benefit Received from Employer during Period of Incapacity-Pension.]-A pension received under the Superannuation Acts, 1834 to 1909, by a person employed under the Civil Service

Commissioners as an attendant in a lunatic asylum on his retirement is a "payment, allowance, or benefit which the workman receives from his employer during the period of his incapacity within the meaning of Schedule I. clause 3 to the Workmen's Compensation Act, 1906, and regard should be had to it in fixing the amount of compensation for an injury by accident arising out of and in the course of the employment and resulting in permanent partial incapacity.

CONSIDINE v. MCINERNEY, 85 L. J. P.C. 168; [1916] 2 A.C. 162; [1916] W.C. & I. Rep. 114; 114 L. T. 1138; 60 S. J. 456; 32 T. L. R. 453-H.L. (Ir.)

Decision of the COURT OF APPEAL IN IRELAND ([1916] 2 Ir. R. 193) reversed. Ib.

Incapacity from Nervous Effects-Paralysis Caused by Loss of Will Power-Result of Accident-No Objective Symptoms.]-A workman's legs were paralysed owing to loss of will power as the result of an accident to his back and legs while working in his employment as a blacksmith's striker, although there were no objective symptoms, so that he was totally incapacitated for his work. It was not a case of malingering, and the man had undergone all the medical treatment he was asked to undergo :-Held, that he was entitled to full compensation for total incapacity from injury by accident arising out of and in the course of his employment within section 1, sub-section 1 of the Workmen's Compensation Act, 1906. STRIDE v. SOUTHAMPTON GAS LIGHT AND COKE Co., 85 L. J. K.B. 1449; [1916] W.C. & I. Rep. 285; 115 L. T. 498; 32 T. L. R. 680-C.A.

Partial Incapacity—Workman Fit for Light Work, but Unable to Walk from Place of Residence to Work-Refusal to Reside Near Work.]-In an arbitration it was proved that the injured workman, a miner, was fit for light work; that his employers had offered him light work at their pit, but that, by reason of his injury, he was unable to walk the distance between his residence and the pit, and that, although he could be provided with a house close to the pit, he, without assigning any reason, refused to change his residence: Held, that the arbitrator was entitled to assess the compensation on the basis of the workman's earning capacity if he resided close to his work.

PEARSON v. RUSSELL, LIM., [1916] S. C. 536 -Ct. of Sess.

Accident to Old Man in Bad Health Subsequent Total Incapacity for Work Incapacity only Partial as Result of Accident -Compensation for Partial Incapacity.]—An old workman who is totally incapacitated for work as the result of an accident operating on a body which was enfeebled before the date of the accident is entitled to compensation, under Schedule I. clause 1 (b) of the Workmen's Compensation Act, 1906, on the footing

of total incapacity; but he is only entitled to compensation on the footing of partial incapacity where the incapacity as the result of the accident is only partial, but his incapacity for work is rendered total through ill health.

LEWIS v. WREXHAM AND ACTON COLLIERIES, 85 L. J. K.B. 1456; [1916] W.C. & I. Rep. 275; 115 L. T. 367-C.A.

Recovery of Compensation from EmployerCompetency of Action against Third Party.]— An injured workman received weekly payments for more than a year from his employers, and granted a receipt for the first payment as *being compensation for accident sustained. The word compensation did not appear in subsequent receipts, and they ultimately bore to be granted without prejudice and under reservation of any claim against third parties. In a subsequent action of damages by the workman against a third party, through whose fault he alleged that he had been injured, he averred that, at the time when the payments by his employers began, he was a minor and was unaware of his legal rights, and that he was willing, in the event of his recovering damages from the defender, to repay to his employers the money received from them :Held, that as the workman had de facto recovered compensation from his employers, he was barred from recovering damages.

:

insolvent -Held, that the workmen could only prove in the liquidation of the employer company for such amount, if any, of the compensation to which they were entitled in excess of the amount at which the liability of the insurance company had been agreed. Pethick, Dix & Co., In re; Burrows v. The Company (84 L. J. Ch. 285; [1915] 1 Ch. 26), applied. RENISHAW IRON Co., In re, 61 S. J. 147— Neville, J.

Fatal Accident-Action under Fatal Accidents Act, 1846 — Damages — Misdirection — Reference to Amount Recoverable under Workmen's Compensation Act, 1906.] Where a dependant of a workman killed by accident elects to sue for damages under the Fatal Accidents Act, 1846, instead of taking proceedings for compensation under the Workmen's Compensation Act, 1906, the Judge, in directing the jury on the question of damages, should not refer to the amount of compensation which, having regard to the man's earnings, might have been recovered under that Act, and it is no ground for a new trial that he did not so refer, and that the amount of damages found by the jury was in fact less than the compensation which the plaintiff might have recovered had she proceeded under the Workmen's Compensation Act, 1906. Semble, if the Judge should refer to the amount of compensation recoverable under that Act, it would be a misdirection on his part.

PRICE v. GLYNEA AND CASTLE COAL AND BRICK Co., 85 L. J. K.B. 1278; [1916] W.C. & I. Rep. 93; 114 L. T. 264; 60 S. J. 274-C.A.

Per BANKES, L.J.: Where a claim is made for damages under the Fatal Accidents Act, 1846, the question not only of the expectation of life of the deceased man should be considered, but also the expectation of life of the claimant. Ib.