by reason of any defect in the condition of the plant used in the Chap. VIII. business of his employer, under s. 1 (1) applies to a case where the plant is unfit for the purpose for which it is used, though no part of it is shown to be unsound. Thus the plaintiff, a workman in defendant's employment, was injured by reason of the breaking of a ladder which was being used to support a scaffold. The ladder was insufficient for the purpose for which it was being used, and the scaffold and ladder had been placed and were being used under the directions of one of the defendants. It was held, under the above circumstances, there was evidence that the plaintiff had been injured by reason of a defect in the condition of the plant, owing to the negligence of his employer within the meaning of the Employer's Liability Act (1). An obstruction caused by a piece of iron which had been negligently left projecting into the roadway, is not a defect in the condition of way within s. 1 (1) (m). "Defects in condition of way." "Person hav tendence en him.' s. 1 (2). An employer may be liable under s. 1 (2), where personal injury is caused to a workman "by reason of the negligence of ing superinany person in the service of the employer who has any superin- trusted to tendence entrusted to him whilst in the exercise of such superintendence," although the superintendent when negligent, is voluntarily assisting in manual labour (n). A person whose duty whilst engaged in the operation of loading a ship is to guide the beam of a crane by means of a guy rope, and to give directions when to lower and hoist the chain, is not "a person having superintendence entrusted to him" within s. 1 (2) (o). A boy who is employed by a railway company to assist their carman in loading goods and under whose direction he is placed, is a person bound to conform to the "orders or directions" of a fellow workman, and as such comes within section 1 (3) (p). The meaning of the term "railway" as used in s. 1 (5) is not confined to railways belonging to railway companies, such as are subject to the provisions of the Railway Regulation Acts, but it also applies to a temporary railway laid down by a contractor for the purposes of the construction of works (q). A steam crane (1) Cripps v. Judge, 13 Q. B. D. 583 (C.A.); approving Heske v. Samuelson, 12 Q. B. D. 30. (m) McGiffin v. Palmer's Shipbuilding Co., 10 Q. B. D. 5. (n) Osborne v. Jackson, 11 Q. B. D. 619. (0) Shaffers v. Gen. Steam Nav. Co., 10 Q. B. D. 356; 52 L. J. Q. B. 260. (p) Millward v. Midland Rail. Co., 14 Q. B. D. 68. (1) Doughty v. Firbank, 10 Q. B. D. 358. "Railway"- meaning of. S. 1 (5). Chap. VIII. fixed on a trolly and propelled by steam along a set of rails is not "a locomotive engine" within this section (r). "In charge of Amount of A., who was in the employ of a railway company as a "capstan man," without giving the usual warning propelled a series of trucks along the line, and injured the plaintiff who was engaged in similar work at the other end of the line about 100 yards off. The capstan was set in motion by hydraulic power communicated to it from a stationary engine at a distance. It was held that there was evidence to warrant a jury in finding that A. was a person who had the charge and control of "a train upon a railway within the statute " (s). A person who is employed by a railway company to clean, oil, and adjust the points, is not a person having the charge or control" of them within s. 1 (5) (t). 66 By section 2 it is enacted that a workman shall not be entitled under this Act to any right of compensation or remedy against the employer in any of the following cases, that is to say, (1.) Under subsection 1 of section 1, unless the defect therein mentioned arose from, or had not been discovered or remedied, owing to the negligence of the employer, or of some person in the service of the employer, and entrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition. (2.) Under subsection 4 of section 1, unless the injury resulted from some impropriety or defect in the rules, bye-laws, or instructions therein mentioned; provided that where a rule or bye-law has been approved, or has been accepted as a proper rule or bye-law by one of Her Majesty's principal Secretaries of State, or by the Board of Trade, or any other department of the government, under or by virtue of any Act of Parliament, it shall not be deemed for the purpose of this Act a defective rule or bye-law. (3.) In any case where the workman knew of the defect or negligence which caused his injury, and failed within a reasonable time to give, or cause to be given, information thereof to the employer, or some person superior to himself in the service of the employer, unless he was aware that the employer or such superior already knew of the said defect or negligence. Section 3 limits the amount of compensation recoverable under compensation. the Act, to a sum not exceeding an equivalent to the estimated (r) Murphy v. Wilkinson, 52 L. J. Q. B. 524. (s) Cox v. G. W. Rail. Co., 9 Q. B. D. 106. (1) Gibbs v. G. W. Rail. Co., 12 Q. B. D. 208. earnings during the three years preceding the injury of a person Chap. VIII in the same grade employed during three years in the like employment, and in the district in which the workman is employed at the time of the injury. Section 4 enacts that no action shall be maintainable under Limit of time for bringing the Act, unless notice of the injury sustained is given within action. six weeks, and the action commenced within six months after the occurrence of the accident causing the injury, or in case of death within twelve months, provided that in case of death want of notice shall be no bar to an action, if in the opinion of the judge there was a reasonable excuse for not giving it. Section 5 enacts that money payable under penalty to the workman or his representatives is to be deducted from the amount of compensation. Section 6 enacts that every action for recovery of compensation under this Act shall be brought in a County Court, subject to removal into a Superior Court in like manner as any other action in a County Court may be removed. This power of removal will only be exercised in exceptional cases, and upon special grounds (u). Section 7 gives directions as to the form and service of notice of an injury under the Act. It must be served on the employer, and state the name and address of the person injured, the cause of the injury, and when it happened. Such notice must be in writing (x). It need not be written in technical language, it is sufficient if it substantially conveys to the mind of the person to whom it is given, the name and address of the person injured, and the cause and date of the injury (y). Thus, the plaintiff's notice of injury stated that she was injured in consequence of the defendant's negligence in leaving a certain hoist in their warehouse unprotected, whereby her foot was caught in the casement of the hoist and crushed. At the trial, the jury found that the accident occurred through the negligence of a superintendent in the warehouse, in allowing the plaintiff, a young girl, to go in the hoist alone. It was held that the notice sufficiently stated the "cause of injury" within the statute (z). (u) Munday v. Thames Ironworks Co., 10 Q. B. D. 59. (x) Moyle v. Jenkins, 8 Q. B. D. 116; Kent v. Millwall Dock Co., 8 Q. B. D. 482. (y) Stone v. Hyde, 9 Q. B. D. 76; 51 L. J. Q. B. 452. (z) Clarkson v. Musgrave, 9 Q. B. D. 386; 51 L. J. Q. B. 525. Money payable as penalties to be deducted from compensation. Action to be commenced in County Court. Service of notice of in jury. Chap. VIII. Where a plaintiff, in giving a notice of injury, omitted to state the date, it was held that such omission, as it did not prejudice the defendant in his defence, and was not omitted for the purpose of misleading, did not render the notice invalid (a). Definitions. Section 8 enacts that for the purposes of this Act, unless the context otherwise requires The expression "person who has superintendence intrusted to him" means a person whose sole or principal duty is that of superintendence, and who is not ordinarily engaged in manual labour: The expression "employer" includes a body of persons, corporate or unincorporate: The expression "workman " means a railway servant, and any person to whom the Employers and Workmen Act, 1875, applies. An omnibus conductor engaged at daily wages, paid daily, is not a "person to whom the Employers and Workmen Act, 1875, applies," and therefore is not entitled to the benefit of the Employer's Liability Act, 1880 (V). (a) Carter v. Drysdale, 12 Q. B. D. 91. See last paragraph of s. 7. (b) Morgan v. Lond. Gen. Omnibus Co., 13 Q. B. D. 832 (C.A.) See Appendix, where statute is set out in full. CHAPTER IX. NEGLIGENCE. SECTION I-NEGLIGENCE IN GENERAL. "THE action for negligence proceeds upon the idea of an obligation on the part of the defendant towards the plaintiff to use care, and a breach of that obligation to the plaintiff's injury " (a). The negligence which is actionable consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes a duty of observing ordinary care and skill, by which neglect the plaintiff, without contributory negligence on his part, has suffered injury to his person or property (b). The omission to provide against extraordinary accidents is not negligence (c). As a general rule the mere happening of an accident through the instrumentality of the defendant, is not primâ facie evidence of negligence, which must be established by some affirmative proof on the part of the plaintiff (d). But accidents may occur of such a nature that negligence may be presumed from the mere fact of the accident; the presumption depending on the nature of the accident. Thus where a person was walking along the street past the defendant's shop, when a barrel of flour fell upon him from a window above the shop, and seriously injured him; it was held sufficient prima facie evidence of negligence to cast on the defendant the onus of proving that the accident was not caused by his negligence (e). The general rule of law as to contributory negligence is that (a) Per Wilde, B., Swann v. N. Brit. Aust. Co., 7 H. & N. 603; see Hayn v. Culliford, 4 C. P. D. 182 (C. A.) (b) Per Brett, M.R., Heaven v. Pender, 11 Q. B. D. at p. 507 (C.A.) (c) Blyth v. Birm. Waterworks Co., 11 Ex. 781; 25 L. J. Ex. 212. (d) Cotton v. Wood, 8 C. B. N. S. 568; 29 L. J. C. P. 233; Hammack v. White, 11 C. B. N. S. 588; Manzoni v. (e) Byrne v. Boadle, 2 H. & C. 722; Chap. IX. Torts founded on negligence. |