there is great difficulty in convincing a jury that the "decisive cause" of the accident was due to the negligence of the workman, though undoubtedly a jury would sometimes compromise matters and give a less amount of damages if they thought the workman had been negligent. It is fancied that counsel of experience might aver that the chances of proving to the satisfaction of a county court judge that a workman had been guilty of "serious and wilful misconduct" would be at least equal to the chances, with the same facts, of convincing a jury that the workman had been guilty of contributory negligence.

Mr. Beven, after saying that "wilful" means no more than intentional, sums up the matter by saying that "to constitute serious misconduct it is probable the Legislature intended to signify conduct that an average workman in being guilty of either would know, or ought to know, if he turned his mind to consider the matter, to be conduct likely to jeopardize his own and his fellow-workmen's safety" (p. 226). In this judgment of what the intention of the Legislature was, one must fully agree; but from the four decided cases to which he refers it would appear that this intention has hardly as yet been carried out. And from the case of Collier v. Pogmore Brothers (106 L.T. Newspaper 200) in which Mr. Beven says that the learned judge must be taken to have found that the workman "wilfully stepped into vacancy," it will be seen that the determination of this question of fact may not infrequently prove an available defence for the employer. This is more especially so since, as Lord Justice A. L. Smith said in Rumboll v. Nunnery Colliery Company, Limited (80 L.T. 42),an appeal against such finding can hardly ever be successful.

In this connection it may be remarked that Mr. Willis is of opinion (p. 25) that the employer "must show that the misconduct was the proximate cause of the injury;" but until the matter receives judicial interpretation, it would not appear quite so clear that the meaning to be given to the

word "attributable" is that the "serious and wilful misconduct" must be the causa causans of the injury. The spirit of the Act is as far as possible to limit the findings of fact, and if Mr. Willis is correct, the arbitrator after he has found "serious and wilful misconduct" in the workman will have. to enter upon the delicate inquiry as to whether such misconduct was the proximate cause of the injury.

But even where the workman's actions do not rise to the height of "serious and wilful misconduct," the same facts may provide the employer with the defence that the accident was not one "arising out of and in the course of the employment." This was clearly seen in the case of Smith v. The Lancashire and Yorkshire Railway [1899] (1 Q.B. 141), where actions, which probably amounted to contributory negligence, did not rise to the height of serious and wilful misconduct, but the employer had a valid defence in that the accident which was caused by such actions did not arise "out of and in the course of the employment." The same result in a lesser degree is seen in the case of Lowe v. Pearson [1899] (1 Q.B. 261).

Mr. Beven also suggests (p. 215) in the following passage another set of cases in which these words may prove a valuable defence to the employer :

"Neither is there any right on the part of the workman under the Act, when the injury is done by an accident in some adjacent premises, the consequences of which extend to the employment in which he is working; for the personal injury does not arise out of the employment." And he goes on to add that, "The accident must be caused by operations within the scope of the employment, and not by others with which the employer has no concern." If this is so, the arbitrator may in many cases have to enter upon an inquiry as to who is to blame for the happening of the accident, a finding which it was the whole intention of the Act to make unnecessary.

Mr. Willis also in his discussion upon this first set of words raises a very interesting question (p. 17): “Can an accident which results from an act of God be said under any circumstances to arise 'out of the workman's employment'?"

He seems to think that the test to be applied in answering this question is "whether or not the workman was injured by one or other of those risks which are created by or incidentally attend such employment?" And, accordingly, if he is right, we shall have the novel object-lesson of a legal tribunal considering whether or not in any particular employment an act of God is of frequent occurrence.

There are under the Act two cases in which the workman is given an option. The first in section 1, sub-section 4, and the words used are "if the plaintiff shall so choose." Mr. Beven was of opinion that this was not an option which the workman was obliged to exercise immediately upon the conclusion of an unsuccessful action (p. 240). Since the publication of the book, however, the case of Edwards v. Godfrey, reported in the Times of May 15 last, seems to have decided the point adversely to the above view; and as Mr. Willis says (p. 33), "Where his action has failed, the workman must claim compensation under this sub-section, or he will forfeit all right to it." The effect of the section, as A. L. Smith, L.J., said in his judgment, is that a locus panitentiæ is given to the workman. At the same time a benefit was given to the employer by allowing the judge to deduct from the compensation awarded, the costs caused by the workman having wrongly brought the action. "If this were not the true construction of the Act, a workman who had failed in an action would never apply" under the section. The other option given to the workman is that in section 6. When Mr. Beven comes to comment upon this section, which it must be admitted is very difficult of interpretation, and which must sooner or later cause some difficulty, he says:-" In the case of abortive compensation proceedings

there can be no legal objection to the workman resorting to his common law remedy " (p. 271).

Far be it from me to say that this interpretation is not the one that will be ultimately put upon the section, and no doubt any believer in the sanctity of the Common Law would be shocked by the idea of a workman being deprived of his Common Law rights which this section at first sight would apparently appear to indicate; but one would have been glad if the author had detailed his reasons for deeming that words should be read into the section, more fully than by merely saying that “The recovery of damages from both persons against whom the workman has a claim, seems the thing prohibited, not the keeping open the possibilities of going against one on failure against the other."

Is it not possible that the case of Edwards v. Godfrey may throw some light upon the matter? In that case the issues in the Action and the Arbitration were of course different, but the facts were so far the same that A. L. Smith, L.J., said that at the termination of the action the employer in ordinary circumstances could plead res judicata. Under section 6 also the issues would be different, but the facts in the Arbitration and the Action respectively would, for the most part, be the same.

The main distinguishing feature, however, would be that, unlike sub-section 4, the parties to the Action and Arbitration would be different. Workman and stranger in the one case, workman and employer in the other. On the whole there seems to be no reason why the Legislature should wish to take away the Common Law rights of the workman, or, in fact, prevent him from recovering against both parties. The only thing to be guarded against was that the employer should not be obliged to pay compensation in respect of a tort which had been, in fact, committed by a stranger. And if this were so, a section one would have thought could easily have been framed which would have given to the employer

the right to sue in respect of the tort to his workman by which he, the employer, had been damnified.

One of the words in the Act most difficult of precise definition is the word "scaffolding," and Mr. Beven goes somewhat fully (pp. 274, 275) into suggested definitions of the word.

It is to be particularly noticed that both in the case of Wood v. Walsh [1899] (1 Q.B. 1009), and in Hoddinott v. Newton, Chambers & Co. [1899] (1 Q.B. 1018), the Court of Appeal expressly refrained from giving a definition of "scaffolding." The first case they decided by holding that 'painting" was not "repairing," and the second, that strengthening the roof of a new building was not "construction" or "repair." In fact, the word is another issue of fact which the arbitrator has to find in each case.

But Lord Justice A. L. Smith, in Wood v. Walsh, so far assisted towards arriving at a definition as to hold that a ladder by itself could in no case be "scaffolding."

In dealing with the First Schedule in which the scale of compensation is fixed, Mr. Beven notices an interesting point.

In section 1 (a) (1) it is provided "that the amount of any weekly payments made under this Act shall be deducted" from the sum paid to dependants who are wholly dependent. Mr. Beven, as to this, says (p. 300): "Supposing the injured man to live more than six months, and then to compound future weekly payments for a lump sum which he alienates, and immediately afterwards dies. His dependants seem to be entitled to compensation; indeed, the case is one of those the Act is passed to meet." He considers, in other words, that the term "weekly payments" must not be read to include a "lump sum" by which the same are redeemed.

The point cannot, however, be of great practical importance, since under the Act the weekly payments can only be redeemed after six months, and then only upon the application of the employer. After six months it will be possible to gauge fairly accurately the nature of the injury, and if there