LIABILITY OF THE EMPLOYER

Dominion, Volume 32, Issue 157, 29 March 1939, Page 13

LIABILITY OF THE EMPLOYER

4 —.—- Workers’ Compensation Act WHETHER HE HAS BEEN NEGLIGENT OR NOT “’The outstanding characteristic of the Act is that it allows compensation without reference to any question of negligence. The employer is made liable for tile results of accidents whether, in fact, he has been negligent or not,” said the President of the Court of Arbitration, -Mr. Justice O’Regan, in delivering the judgment of the Court in a compensation case yesterday. The case was one in which a widow sought compensation for the death of her husband, a nightwatchman, who overbalanced, fell to the wharf and was fatally injured when boarding a vessel by a gangway on which the man-ropes had not been placed in position. Plaintiff alleged that her husband died as a result of injury by accident arising out of and in tile course of his employment. Defendant company admitted the accident but denied liability on the ground that it did not arise out of the employment. Mr. J. S. Hanna appeared for plaintiff and Mr. C. G. White for defendant. Negligence of Deceased. “The regulations made pursuant to the Harbours Act require that every ship shall be provided with a gangway, and there is no suggestion that in this case tiie gangway was not fully up to the requirements prescribed,” Mr. Justice O'Regan said. “There can be no doubt that the proximate cause of the accident was the negligence of deceased himself in attempting to board the ship before the gangway had been completed. “Briefly, Mr. White submits that, under the circumstances, though the accident may have occurred in the course of the employment, it did not arise out of it for the reason that deceased was doing something he was not authorized to do by his contract of employment. In other words, that he was injured as the result of a risk of which he was the sole author.

“Mr. Hanna, on the other band, submits that, though deceased wag negligent, he was in the course of his employment, and he has referred us to a number of authorities showing the difference between an unauthorized act within the scope of the employment and an act wholly outside it.” Position of Employer. His Honour said the Workers’ Compensation Act left the door of the common law open to an injured man, aud so he might discard his new remedy, and proceed for damages as before, but the Act was made available to him even in cases where there was no suggestion of negligence on the part of the employer, nor was a worker himself to be denied compensation by reason of any negligence on his own part, unless it amounted to serious and wilful misconduct, and even that would not preclude, a claim where the accident caused death or permanent injury. “Looking at the facts of the present case, therefore, in the light of decided cases and having regard to the policy of the Act, we are satisfied that plaintiff is entitled to succeed,” His Honoursaid. “When deceased reached the wharf, he found that the gangway was in position, but that it had not been completed, and it is quite evident that he attempted ito go on board before the manropes had been placed in position or the lashings completed. Though it is beyond doubt that deceased was negligent,fit is clear that his negligence cannot have been the result of deliberation inasmuch as he was suddenly confronted with a situation which, till he had reached the ship’s side, he could not have anticipated. Under the circumstances, we must hold that the accident arose out of the employment and hence that, the widow is entitled to 1 compensation.”