1912

SWANSEA CORPORATION

v.

HARPUR.

Railways Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 20), s. 140 (under the heading, "And with respect to the recovery of damages not specially provided for, and of penalties, and to the determination of any other matter referred to justices, be it enacted as follows"): "In all cases where any damages, costs, or expenses are by this or the special Act, or any Act incorporated therewith, directed to be paid, and the method of ascertaining the amount or enforcing the payment thereof is not provided for, such amount, in case of dispute, shall be ascertained and determined by two justices

C. A.

1911

Dec. 18, 20;

1912 Feb. 7.

[IN THE COURT OF APPEAL.]

GODWIN v. THE LORDS COMMISSIONERS OF THE

ADMIRALTY.

Employer and Workmen-Compensation-Contracting out-Scheme of Compensation-Re-certification-Ballot-Jurisdiction of County Court Judge— Workmen's Compensation Act, 1906 (6 Edw. 7, c. 58), s. 3, sub-s. 1; 8. 15, sub-ss. 2 and 3. (1)

On re-certification under s. 15 of the Workmen's Compensation Act, 1906, of a scheme of compensation which has been certified under the Workmen's Compensation Act, 1897, it is not necessary that a ballot of the workmen should be taken before the registrar can re-certify. The applicant had been employed in the Portsmouth Dockyard as a

C. A.

1912

GODWIN

v. LORDS COMMISSIONERS

bricklayer for about twenty years, and in May, 1908, in the course of
his employment he met with an accident which resulted in January,
1910, in his being returned unfit for service. He was dissatisfied with
the compensation offered by the respondents and applied to the county
court to settle the amount. The respondents answered that he had
contracted with them to be bound by a scheme of compensation certified
and re-certified by the Registrar of Friendly Societies, by which com-
pensation was to be fixed by the Treasury; and they contended that ADMIRALTY.
the county court judge had no jurisdiction to hear the application. It
was admitted that there had not been any ballot of workmen in the
respondents' employment prior to the re-certification of the scheme;
and the applicant contended that on that ground the certificate was
invalid :-

Held (by Cozens-Hardy M.R. and Farwell L.J., Fletcher Moulton L.J.
dissenting), that it was not necessary that a ballot should be taken before
the registrar could re-certify; that the certificate was valid and the
applicant was bound by the scheme; and that the county court judge
had no jurisdiction to hear the application.

APPEAL from an award of the county court judge of Portsmouth sitting as arbitrator under the Workmen's Compensation Act, 1906.

Frederick Godwin, the applicant, had been employed by the Lords Commissioners of the Admiralty as a bricklayer in His Majesty's dockyard at Portsmouth for about twenty years, and on May 23, 1908, while following his employment, was injured in his right hand. On September 9, 1909, he had one of the fingers of his right hand amputated, and in January, 1910, he was returned unfit for service. His average weekly earnings previous to the injury had been 1l. 14s. 6d. ; and he had received from the respondents compensation at various rates during the time he was unable to do any work. They then offered him a weekly sum as compensation, but he refused the offer and applied to the county court to fix the compensation. The respondents answered that a scheme of compensation for their workmen had been duly certified and re-certified by the Registrar of Friendly Societies, and his certificate was in force when the applicant received his injury;

Registrar of Friendly Societies, have effect as if it were a scheme under this Act.

"(3.) The registrar shall re-certify any such scheme if it is proved to

his satisfaction that the scheme con-
forms, or has been so modified as to
conform, with the provisions of this
Act as to schemes."

OF THE

C. A.

1912

GODWIN

LORDS COMMISSIONERS

OF THE

that on January 17, 1908, the applicant had signed a contract with them to be bound by the scheme instead of by the provisions of the Workmen's Compensation Act, 1906; and they contended that the county court had no jurisdiction to hear the application. By the scheme it was provided under " B. Incapacity from injury" that (clause 9)" when total or partial incapacity for work conADMIRALTY. tinues beyond the period for which the workman receives hurt pay, as provided by clause 5, an allowance shall be paid to him at the following rates during the continuance of the incapacity, viz.; when his capacity to contribute towards his own support has been shown to the satisfaction of the Treasury to have been (1.) totally destroyed, then twenty-four sixtieths; (2.) materially impaired, eighteen sixtieths; (3.) impaired, twelve sixtieths; (4.) slightly impaired six sixtieths, of his average weekly earnings during the previous twelve months, if he has been so long employed, but if not, then during any less period for which he has been in the employment of the Government." (Clause 14) "Any workman who wishes to withdraw from the scheme may do so at any time." On the scheme was a certificate of re-certification as follows:

"No. 71 C. under the Act of 1897 re-certified as No. 116.

"Workmen's Compensation Act, 1906.

"It is hereby certified that the foregoing scheme (No. 71 C. under the Act of 1897) provides scales of compensation not less favourable to the workmen and their dependants than the corresponding scales contained in the Workmen's Compensation Act, 1906. If not renewed this certificate is to expire on the 30th day of June, 1913. Dated the 16th day of December, 1907."

This certificate was signed by the Registrar of Friendly Societies. It was admitted that there had never been any ballot of the workmen in the respondents' employment within the terms of s. 3 of the Act of 1906 prior to the re-certification of the scheme.

The learned county court judge followed Horn v. Lords
Commissioners of the Admiralty (1) and dismissed the application
on the ground that he had no jurisdiction to hear it.
The applicant appealed.

(1) [1911] 1 K. B. 24.

C. A.

1911

GODWIN

v.

LORDS

SIONERS OF THE ADMIRALTY.

1911. Dec. 18. Sir Alfred Cripps, K.C., and Harold Morris, for the appellant. Horn v. Lords Commissioners of the Admiralty (1) was wholly unlike this case; it did not refer in any way to the necessity of taking a ballot of the workmen on re-certifying a scheme; and all the conditions had been complied with. The appel- COMMISlant submits that in this case the scheme was not validly re-certified and therefore that there is no scheme which can interfere with the jurisdiction of the county court judge. Under the Workmen's Compensation Act, 1897, schemes of compensation were provided for by s. 3, and no ballot was required, although the views of the employer and workmen had to be ascertained. Sect. 3 of the Act of 1906 provides for schemes under that Act and makes a ballot of the workmen necessary. Sect. 15 provides that the registrar may re-certify a scheme if (sub-s. 3) it conforms with the provisions of the Act of 1906 as to schemes. One of the provisions of the Act as to schemes is that there should be a ballot, and until a ballot has been taken the scheme cannot conform and the registrar cannot re-certify. The Regulations and Forms of July 1, 1907, actually provide that a ballot shall be taken before re-certification.

Sir Rufus Isaacs, A.-G., and B. A. Cohen, for the respondents. It is not necessary that a ballot of the workmen should be taken before a scheme certified under the Act of 1897 can be re-certified under the Act of 1906. It is true that the Regulations and Forms of July 1, 1907, provide for a ballot, but so far as that provision is concerned they are ultra vires. Sect. 15 of the Act of 1906 says nothing about a ballot and no power is given to make regulations under that section. The only power is contained in s, 3, sub-s. 8, and it refers to that section only. The regulations have never been altered, but the mistake was recognized from the first, and in practice a ballot has never been asked for on re-certification. By s. 15, sub-s. 3, the registrar is to re-certify a scheme if it conforms or has been so modified as to conform

with the provisions of the Act as to schemes. A ballot is a condition precedent to the making of a scheme; it is not a provision of the scheme. What is meant by sub-s. 3 of s. 15 is that the benefits to the workmen must be as great in a re-certified scheme as in the old scheme. That is shewn by sub-s. 4, which treats an (1) [1911] 1 K. B. 24.

C. A.

1911

GODWIN

v.

LORDS COMMISSIONERS

OF THE

ADMIRALTY.

old scheme as actually in operation. Under s. 3 of the Act of
1897 no ballot was necessary, but the registrar had to ascertain
the wishes of the employer and workmen, and that was done in
this case.
There is nothing to make all the requirements of s. 3
of the Act of 1906 applicable to re-certification of an old scheme
under s. 15. That section was intended to keep old schemes
alive, not to produce new ones. A ballot cannot make an old
scheme conform with the provisions of the present Act. This is
a valid scheme and has been properly re-certified; the appellant is
bound by his contract; the county court judge was right, and the
question of compensation is left to the Treasury.

This Court has jurisdiction to hear the appeal: Moss v. Great Eastern Ry. Co. (1) The respondents do not contend that Horn v. Lords Commissioners of the Admiralty (2) has any bearing on this point.

Sir Alfred Cripps, K.C., in reply.

Cur, adv. vult.

1912. Feb. 7. COZENS-HARDY M.R. The appellant is a bricklayer employed in the dockyard at Portsmouth. He was injured by an accident and he claimed compensation under the Workmen's Compensation Act, 1906. He was met by the defence that he had contracted himself out, of the Act, and that in conformity with the decision of this Court in Horn v. Lords Commissioners of the Admiralty (2) the county court judge had no jurisdiction. The county court judge acquiesced in this view and the workman has appealed. Under the old Act of 1897 a scheme might be certified by the Registrar of Friendly Societies. Before certifying he was bound to take steps to ascertain the views of the employer and workmen and to certify that the scheme was on the whole not less favourable to the general body of workmen and their dependants than the provisions of the Act, and a workman was then authorized to contract that the provisions of the scheme should be substituted for the provisions of the Act. A scheme of compensation in case of injury to workmen in Government establishments was certified under that section. The Act of 1897 has been repealed by the Act of 1906, and there are some material changes introduced by (1) [1909] 2 K. B. 274. (2) [1911] 1 K. B. 24.