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9 1934

WORKMEN'S COMPENSATION ACT, 1934

PART II.

Compensation for Personal Injuries to Workmen and Liability Therefor.

Liability of employers to workmen for injuries.

15. —(1) If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject to the provisions of this Act, be liable to pay compensation in accordance with the provisions of this Act.

(2) Where an accident results in the death or serious and permanent disablement of a workman, such accident shall for the purpose of this Act be deemed to arise out of and in the course of his employment notwithstanding the fact that such workman was at the time when such accident happened acting in contravention of any statutory or other regulation applicable to his employment, or of any orders given by or on behalf of his employer, or that he was acting without instructions from his employer, if such act was done by such workman for the purpose of and in connection with his employer's trade or business.

Non-liability of employer in certain cases.

16. —(1) An employer shall not be liable under this Act in respect of any injury which does not disable a workman for a period of at least three days from earning full wages at the work at which he was employed when he sustained such injury.

(2) An employer shall not be liable under this Act in respect of any injury to any workman which is proved to be attributable to the serious and wilful misconduct of such workman, unless such injury results in the death or the serious and permanent disablement of such workman.

Prohibition of contracting out.

17. —(1) Subject to the provisions of this section, any contract between an employer and any of his workmen whether made before or after the commencement of this Act whereby other provisions are substituted for the provisions of this Act shall be void and of no effect.

(2) This section shall not apply to any contract authorised to be made under the provisions of this Act relating to substitution of liability under a scheme for liability under this Act.

Persons entitled to compensation.

18. —(1) Where compensation is payable under this Act in respect of an injury to a workman which does not result in his death, the compensation shall be paid to or applied in the manner provided by this Act for the benefit of such workman.

(2) Where compensation is payable under this Act in respect of an injury to a workman which results in his death—

(a) so much (if any) of such compensation as consists of the adults' lump sum shall—

(i) in case he leaves one adult dependant only, be paid to or applied in the manner provided by this Act for the benefit of such dependant;

(ii) in case he leaves two or more adult dependants, be allotted amongst such dependants in such proportions as the Court shall order, and the amount so allotted to any dependant shall be paid to or applied in the manner provided by this Act for the benefit of such dependant;

(b) so much (if any) of such compensation as consists of the children's lump sum shall—

(i) in case he leaves only one juvenile dependant, be applied in the manner provided by this Act for the benefit of such dependant;

(ii) in case he leaves two or more juvenile dependants, be applied in the manner provided by this Act for the benefit of such dependants;

(c) such compensation shall, if he leaves neither an adult dependant nor a juvenile dependant be paid to his personal representative or, if he has no such representative, to the persons to whom the expenses of medical attendance and burial are due, in such shares as may, in default of agreement between those persons, be ordered by the Court.

(3) Where compensation consisting wholly or partly of the adults' lump sum is payable under this Act in respect of an injury to a workman which results in his death and such workman leaves both total and partial adult dependants, nothing in this Act shall be construed as preventing the adults' lump sum being allotted partly to such total dependants and partly to such partial dependants.

(4) Where an adult dependant or a juvenile dependant dies before a claim under this Act is made or, if a claim has been made, before an award has been made, the legal personal representative of the dependant shall have no right to payment of compensation, and the amount of compensation shall be calculated and apportioned as if the dependant had died before the workman.

Sub-contracting.

19. —(1) Subject to the provisions of this section, where any person (in this section referred to as the principal) in the course of or for the purpose of his trade or business, contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of such work any compensation under this Act which he would have been liable to pay if such workman had been immediately employed by him.

(2) Where, by virtue of the foregoing sub-section, compensation is claimed from or proceedings are taken by a workman against the principal, references in this Act to the employer of such workman shall be construed as references to the principal, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the contractor.

(3) Where the contract between the principal and the contractor relates to threshing, ploughing or other agricultural work, and the contractor provides and uses machinery driven by mechanical power for the purpose of such work, the contractor alone shall be liable under this Act to pay compensation to any workman employed by him on such work.

(4) Where the principal is, by virtue of this section, liable to pay compensation to a workman he shall be entitled to be indemnified in respect of such liability by any person who would have been liable to pay such compensation independently of this section and all questions as to the right to and the amount of any such indemnity shall, in default of agreement, be determined by the Court.

(5) This section shall not operate to prevent a workman recovering compensation under this Act from the contractor instead of the principal

(6) This section shall not apply in any case where the accident which gave rise to the claim for compensation occurred elsewhere than on, or in, or about premises on which the principal has undertaken to execute the work or which are otherwise under his control or management.

Bankruptcy of employer.

20. —(1) Where any employer has entered into a contract (in this section referred to as a contract of insurance) with any insurers in respect of any liability under this Act of such employer to any workman, then, in the event of such employer becoming bankrupt or making a composition or arrangement with his creditors, or if such employer is a company, in the event of such company having commenced to be wound up or a receiver or manager of such company's business or undertaking having been duly appointed or possession having been taken, by or on behalf of the holders of debentures secured by a floating charge, of any property comprised in or subject to that charge, the following provisions shall have effect:—

(a) the rights of such employer against such insurers as respects that liability shall, notwithstanding anything contained in any enactment, be transferred to and vest in the workman, and upon any such transfer such insurers shall have the same rights and remedies and be subject to the same liabilities as if they were the employer, so however that such insurers shall not be under any greater liability to the workman than they would have been under to the employer, and

(b) if the liability of the insurers is less than the liability of the employer to the workman, the workman may prove for the balance in the bankruptcy or liquidation, or, as the case may be, he may recover the balance from the receiver or manager.

(2) Where an employer (being an individual) has not entered into a contract of insurance, then in the event of such employer becoming bankrupt or making a composition or arrangement with his creditors, there shall be included amongst the debts which, under section 4 of the Preferential Payments in Bankruptcy (Ireland) Act, 1889, are in the distribution of the property or assets of a bankrupt or arranging debtor to be paid in priority to all other debts the amount due in respect of any compensation or liability for compensation under this Act by such employer accrued before in the case such employer has become a bankrupt the date of the order for adjudication, or in case such employer has become an arranging debtor, the date of the filing of the petition for arrangement.

(3) Where an employer (being a company) has not entered into a contract of insurance, then in the event of the company having commenced to be wound up, there shall be included amongst the debts which under section 209 of the Companies (Consolidation) Act, 1908, are in the winding up of a company in priority to all other debts, the amount due in respect of any compensation or liability for compensation under this Act by such company accrued before the date mentioned in sub-section (5) of the said section 209.

(4) When an employer (being a company) has not entered into a contract of insurance, then in the event of a receiver or manager of the company's business or undertaking having been duly appointed, or possession having been taken, by or on behalf of the holders of debentures secured by a floating charge, of any property comprised in or subject to the charge, there shall be included amongst the debts which under section 107 of the Companies (Consolidation) Act, 1908, are to be paid in priority to any claim for principal or interest in respect of debentures, the amount due in respect of any compensation or liability for compensation under this Act by the company accrued before the date of the appointment of the receiver or manager or of possession being taken mentioned in the said section 107.

(5) When the compensation is a weekly payment, the amount due in respect thereof shall, for the purposes of sub-sections (2) (3) and (4) of this section, be taken to be the amount of the lump sum for which the weekly payment could, if redeemable, be redeemed if the employer made an application for that purpose under this Act.

(6) This section shall not apply where a company is wound up voluntarily merely for the purpose of reconstruction or of amalgamation with another company.