The National Insurance (Industrial Injuries) Act, 1946 / with general introduction and annotations by N.P. Shannon and Douglas Potter.

United Kingdom

Date:: 1946

Credit: The National Insurance (Industrial Injuries) Act, 1946 / with general introduction and annotations by N.P. Shannon and Douglas Potter. Source: Wellcome Collection.

223/252 (page 213)

$ACT, 1946. SCHEDULES (c) Ship or vessel employed exclusively in Great Britain.—As to insurable employment in ships generally see paragraph 2 of this Schedule, Part I, ante, and notes thereto. It is to be observed that even though an employment in a ship or vessel does not fall within that paragraph, if the ship or vessel is employed exclusively in Great Britain (e.g., a lake or river steamer) the employment is insurable by virtue of Part I, paragraph 1, of this Schedule, ante, on the ground that it is employment in Great Britain under a contract of service. Paragraph 3 (a) of Part II of the Schedule leaves such cases as insurable employments. (qd) Gontract entered into outside the United Kingdom.—tThe effect of this provision is that if a person is engaged out of the United Kingdom in any other - capacity on board a ship or vessel than that of a master or a member of the crew, he is not in an insurable employment. (e) Employment of a casual nature.—In order for an employment to be exempt on the ground that it is of a casual nature there are two conditions, both of which must be satisfied, viz. (i) the employment must be casual, and (ii) even though it is casual it must not fall within any of the four specified classes of employment dealt with in the notes below. In this note the meaning “ of a casual nature ’’ is discussed. There was a similar, though not identical, provision in section 3 (2) (b) of the Work- men’s Compensation Act, 1925; Willis 161; in paragraph 10 of Part II of Schedule I to the Unemployment Insurance Act, 1935; 28 Halsbury’s Statutes 571; and in paragraph (1) of Part II of Schedule I to the National Health Insurance Act, 1936 ; 29 Halsbury’s Statutes 1191 ; and the cases decided under these earlier Acts are relevant under the present Act. In Ait v. Begg, {1908] 2 K.B. 802, .C_A7; 34 Digest.256,. 2792; Bucxiey, L.]., at pp. 805-806, drew a distinction between a person who is ‘ casually employed ’’, and “ employment of a casual nature ’’ and said that it was not the tenure of the employment that mattered but whether the employment was one which in its nature was casual. No appellate tribunal has attempted a comprehensive definition of what is covered by the words “‘ employment of a casual nature ’’ and the effect of the decisions, taken as a whole, is that where upon all the facts there is a reasonably debatable question whether the employment is casual or not the decision must be regarded as involving a question of fact on which, under the Workmen’s Compensation Act, 1925, the decision of arbitra- tion was conclusive ; see Smith v. Buxton (1915), 112 L.T. 893; 34 Digest 256, 2797 ; Stoker v. Wortham, [1919] 1 K.B. 499; 34 Digest 255, 2786 ; Williams v. Haigh (1925), 18 B.W.C.C. 549 ; 34 Digest 257, 2797. Similarly under the present Act it is a matter for the Minister to-decide as a question of fact under section 36 (1) (a) ante, whether a person is excluded from being in in- surable employment because his employment is of a casual nature, and unless he mis- directs himself in law as to the principles he should apply, or makes a finding of fact which is unsupported by evidence, there will be no point of law arising on which there could be a reference or appeal to the High Court under section 37 (1) of the Act. The following cases are given as illustrations only of findings of fact which have (with one exception, viz., Hill v. Begg, post) been accepted by the appellate court on the ground that there was evidence to support them. In the following cases the employment was held to be casual: Hull v. Begg, [1908] 2 K.B. 802, C.A.; 34 Digest 256, 2792 (temporary employment to clean windows extend- ing over two years at irregular intervals of about six weeks) ; Rennie v. Read, [1908] S.C. 1051 (cleaner employed about once a month, no arrangement being made in advance, the employer having the liberty to employ any other cleaner at any time) ; McCarthy v. Norcott (1908), 43 Ir. L.T. 17 (person employed to do some repairs at private house and afterwards to cut down some trees for a daily wage); Knight v. Bucknill (1913), 6 B.W.C.C. 160; 34 Digest 256, 2787 (jobbing gardener employed at 3s. 6d. a day to cut trees, level a lawn and then to lop more trees ; work lasted over five weeks and payment was weekly) ; Iitchings v. Bryant (1913), 6 B.W.C.C. 183 ; 34 Digest 256, 2194 (man cleaned windows of a house for four years once a month, but there were no arrangements as to future work) ; Stoker v. Wortham, [1919] 1 K.B. 499; 34 Digest 255, 2186 (temporary cook for fourteen days while regular cook on holiday : wages weekly with full board and lodging and living in); Nash v. Nari (No. 2) (1932), 25 B.W.C.C. 275 ; Digest Supp. (man employed to whitewash rooms by woman who let furnished rooms). In the following cases the employment was held not to be casual: Dewhurst v. Mather, [1908] 2 K.B. 754; 34 Digest 256, 2790 (employment on the Friday of every week and on Tuesday in every alternate week) ; Williams v. Haigh (1925), 18 B.W.C.C. 549 ; 34 Digest 257, 2797 (employment to lop trees overhanging a road at a daily wage with an agreement that the job in question should be finished in a few weeks) ; Hughes v. Walker (1926), 19 B.W.C.C. 79 ; 34 Digest 256, 2789 (workman employed for a few days to build a wall round a garden). (f) For the purposes of the employer’s trade or business.—Even if the employment is of a casual nature it is still an insurable employment provided (i) it falls within one of the paragraphs of Part I of this Schedule, ante, and (ii) it is employment for the purposes of the employer’s trade or business. This was also the case under section 3 (2) (b) of the Workmen’s Compensation Act, 1925; Willis 161; and the following cases decided under that Act may assist, though it must be remembered that in this case$