Employers' Liability Act 1894 (WA)

58 VICTORI.E. No. 8

Employers' Liability.

WESTERN AUSTRALIA

ANNO QUINQUAGESIMO OCTAVO

VICTORIZE REGIME

No. 3

An Act to extend and regulate the Liability of Employers to make Compensation for Personal Injuries suffered by Workmen in their Service.

[Assented to 10th October, 1894.

Assembly of Western Australia, in this present Parliament assembled, the advice and consent of the Legislative Council and Legislative and by the authority of the same, as follows :- BE it enacted by the Queen's Most Excellent Majesty, by and with

1. This Act may be cited as The Employers' Liability Act, Short titre

1894.'

2. For the purposes of this Act, unless the context otherwise Interpretation Imp. Act, 43 &

requires : 44 vie., 0. 42, e.

The expression' person who has the superintendence entrusted 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 cor- porate or unincorporate, and the Governor or any Minister acting for or on behalf of Her Majesty or Her Majesty's Government within the Colony.

The expression workman' means a railway servant, and any person (other than a domestic or menial servant) who, being a labourer, servant in husbandry, journeyman, artificer, handicraftsman, miner, or otherwise engaged in manual labour, whether under the age of twenty-one years or above that age, has entered into, or works under a contract with an employer, whether the contract be made before or after the passing of this Act, be express or implied, oral or in writing, and be a contract of service or a contract personally to execute any work or labour.

The expression 'Judge who tries the action' includes 'the Magistrate' of a Local Court and the Justices exercising the powers of a Local Court.

Amendment of

3. Where, after the commencement of this Act, personal injury is law

caused to a workman Imp. Act, 43 4.

(1) By reason of any defect in the condition of the ways, works, 44 Vie., c. 42, s. /

machinery, or plant connected with or used in the business

of the employer ; or

58 VICTORPE. No. 3

Employers' Liability

(2) By reason of the negligence of any person in the service

of the employer, who has any superintendence entrusted

to him, whilst in the exercise of such superintendence ; or

(3) By reason of the negligence of any person in the service of

the employer to whose orders or directions the workman

at the time of the injury was bound to conform, and did

conform, where such injury resulted from his having so

conformed ; or

(4) By reason of the act or omission of any person in the service of the employer, done or made in obedience to the rules or by-laws of the employer, or in obedience to particular instructions given by any person delegated with the authority of the employer in that behalf ; or

(5) By reason of the negligence of any person in the service

of the employer who has the charge or control of any

signal points, locomotive engine, or train upon a railway ;

the workman, or in case the injury results in death, the legal personal

representatives of the workman and any persons entitled in case of

death, shall have the same right of compensation and remedies against

the employer as if the workman had not been a workman of, nor in the

service of, the employer nor engaged in his work.

Exceptions to 4. A workman shall not be entitled under this Act to any right of

amendment of

law compensation or remedy against the employer in any of the following

Imp. Act, 42 & cases, that is to say :—

44 Vic., o.42, s, 2 (1) Under sub-section (1) of the last preceding section, unless

the defect therein mentioned arose from or had not been discovered or remedied owing to the negligence of the em- ployer, 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 sub-section (4) of the last preceding section, unless the injury resulted from some impropriety or defect in the rules, by-laws, or instructions therein mentioned; provided that where a rule or by-law has been approved, or has been accepted as a proper rule or by-law by the Governor in Executive Council, or by any department of the Government or officer under or by virtue of any Act of Parliament, it shall not be deemed for the purposes. of this Act to be an improper or defective rule or by-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 him- self in the service of the employer, unless he was aware that the employer or such superior already knew of the said defect or negligence.

Representatives

of deceased 5. An action under this Act shall lie and may be maintained

re ter may against the legal personal representatives of a deceased employer.

Limit of sum 6. The amount of compensation recoverable under this Act shall

recoverable as not exceed such sum as may be found to be equivalent to the estimated compensationearnings during the three years preceding the injury of a person in the

58 VICTORI/E, No. 3

Employers' Liability

same grade employed during those years in the like employment, and Imp. Act, 43 &

in the district in which the workman is employed at the time of the " Vie., "2, 8' 3

injury.

7. In determining in any case the amount of compensation payable determining In

by an employer, the Court shall take into consideration the value of ic=iceiliroir b

any payment or contribution made by such employer to or for the contributions	by
injured person in respect of his injury, and also the value of any pay-on,'.13,;,,°;;°,1aT'oir
ment or contribution made by such employer to any insurance or workman to becompensation fund to the extent to which any person who would considered
otherwise be entitled to compensation has received or is entitled to receive compensation out of such fund. In any action the fact of any payment or contribution having been made by the employer as aforesaid shall not, of itself, be any admission of liability on the part of the employer.

S. Where compensation is awarded in case of the death of a work- Judge may

man for an injury sustained by him in the course of his employment, litt compen.	d
,ael
the amount recovered, after deducting the costs not recovered from the defendant, may, if the Judge who tries the action so directs, be divided between the wife, parents, and children of the deceased, in such shares as the Judge may determine.

in death, the same rights of compensation shall exist for the benefit of bar to actin" 9. Where the personal injury to a workman who is illegitimate results Illegitimacy no

his mother, or of brothers and sisters by the same father and mother,

as if he and such brothers and sisters were legitimate.

10. An action for the recovery, under this Act, of compensation for Limit of time

an injury shall not be maintainable unless notice in writing that efoornIptecio„vaegof

injury has been sustained is given within six weeks, and the action is Imp. Act 43 &	commenced within six months, from the occurrence of the accident 44 vie., c. 42,
causing the injury, or in case of death within twelve months from the time of death ; Provided always, that the want of such notice shall be no bar to the maintenance of such action if the Judge who tries the action shall be of opinion that there was reasonable excuse for such want of notice, and that the employer has not been prejudiced thereby.

IL There shall be deducted from any compensation awarded to Money payable

any workman, or representatives of a workman, or persons claiming 1),"TerdLenani °

by, under, or through a workman, in respect of any cause of action compensation arising under this Act, any penalty or part of a penalty which may under Act

have been paid in pursuance of any other Act of Parliament to such

44'34 5

workman, representatives, or persons in respect of the same cause of action ; and where an action has been brought under this Act by any workman, or the representatives of any workman, or any persons claiming by, under, or through such workman for compensation in respect of any cause of action arising under this Act, and payment has not previously been made of any penalty or part of a penalty under any other Act of Parliament in respect of the same cause of action, such workman, representatives, or person shall not be entitled thereafter to receive any penalty or part of a penalty under any other Act of Parlia- ment in respect of the same cause of action.

58 VICTORIX. No. 3

Employers' Liability

Node of serving 12. (1) Notice in respect of an injury under this Act shall give the

notice of injury name and address of the person injured, and shall state in ordinary Imp. Act, 43lanotage the cause of the injury and the date at which it was sus- 4 ic., c 4 2, s &. 7 b

taMed, and shall be served on the employer, or if there is more than

one employer, upon one of such employers.

(2) The notice may be served by delivering the same to or at the residence or place of business of the person on whom it is to be served.

(3) The notice may also be served by post by a registered letter addressed to the person on whom it is to be served, at his last known place of residence or place of business ; and if served by post shall be deemed to have been served at the time when a letter containing the same would be delivered in the ordinary course of post, and in proving the service of such notice it shall be sufficient to prove that the notice was properly addressed and registered.

(4) Where the employer is a body of persons corporate or unincorporate the notice shall be served by delivering the same at or by sending it by post in a registered letter addressed to the office, or if there be more than one office, any one of the offices of such body.

(5) A notice under this section shall not be deemed invalid by reason of any defect or inaccuracy therein, unless the Judge who tries the action arising from the injury mentioned in the notice shall be of opinion that the defendant in the action is prejudiced in his defence by such defect or inaccuracy, and that the defect or inaccuracy was for the purpose of misleading.

Actions under 13. (1) Every action for recovery of compensation under this Act

this Act brought brought in a Local Court, may, upon the application of either plaintiff

in Local Courts

may be removed or defendant, be removed into the Supreme Court, in like manner and

as other actions upon the same conditions as an action commenced in a Local Court

may by law be removed.

And may be (2) Actions under this Act in a Local Court may be consoli-

consolidated dated by order of the Magistrate, in like manner as a Judge may order

Imp. Act, 43 & consolidation of actions in the Supreme Court ; and for the purpose of 4 ic., 0 42, s. G

preventing multiplicity of such actions, rules and orders may be made, varied, and repealed from time to time, in the same manner as rules and orders for regulating the practice and procedure in other actions in the Local Court ; and until such rules and orders are made, the rules and orders governing the practice and procedure of County Courts in England, in actions under ' The Employers' Liability Act, 1880,' shall be in force and govern the proceedings as far as the same may be applicable.

Contracts to	14. Every covenant, contract, or agreement hereafter made or entered into, whereby any workman or person binds himself or his personal representatives, either expressly or by implication, not to claim any benefit or enforce any right under this Act, shall be null and void.
forego benefits
of Act to be void

W. C. F. ROBINSON,

GOVERNOR.