COUNSEL: Danckwerts, K.C., and Raymond Asquith, for the appellants.

Waddy, for the respondent.

 

SOLICITORS: Mowll & Mowll, for Mowll & Mowll, Dover; H. G. Campion & Co., for Ernest E. Chitty, Dover.

 

JUDGES: Cozens-Hardy M.R., Fletcher Moulton and Farwell L.JJ.

 

DATES: 1909 March 30.

 

 

Employer and Workman – Compensation – Accident happening Abroad – Claim by Dependant – Jurisdiction – Scope of Workmen’s Compensation Act, 1906 (6 Edw. 7, c. 58).

 

The Workmen’s Compensation Act, 1906, has no application outside the territorial limits of the United Kingdom, except in the case of seamen and apprentices as provided by s. 7.

 

Where an English workman in the employment of English contractors was sent out by them to Malta to work for them there, and met with a fatal accident:–

 

Held, that his widow was not entitled to compensation under the Workmen’s Compensation Act, 1906.

 

APPEAL against the award of the judge of the county court of Dover upon a claim for compensation under the Workmen’s Compensation Act, 1906.

 

The question raised by this appeal was whether the Act applied to the case of an accident happening abroad.

 

The applicant was the widow of John Thomas Tomalin, deceased, a domiciled and resident Englishman. The respondents were an English company, having their registered office in London, and were contractors for public works, amongst others for the breakwater at Dover. The deceased was a fitter in their employ, and had worked for them for several years up to May 27, 1907, at Dover. In July, 1907, the respondents, having a contract for the construction of breakwaters at Malta, engaged the deceased to go and work for them there. The terms of the engagement were set forth in a letter addressed to the deceased, and dated July 18, 1907, under which he was to get [*62] 2l. 10s. a week as a fitter while at Malta, his passage out was to be paid, also 25s. a week during the time he was on the journey, and his passage home was also to be paid at the conclusion of satisfactory service. In accordance with that letter the deceased went out to Malta on July 20, 1907, and continued in the service of the respondents there, working regularly on the breakwater contract from the time of his arrival until August 24, 1908, when he was killed by accident arising out of and in the course of his employment. His widow claimed compensation under the Act of 1906, and if entitled to it the amount was not in dispute, but her title to compensation was disputed as a question of law. The county court judge held that the applicant was entitled to compensation. The contractors appealed.

 

Danckwerts, K.C., and Raymond Asquith, for the appellants, after stating the facts, were stopped.

 

Waddy, for the respondent. The workman being English, the contractors English, and there being no intention on the part of the workman to settle in Malta, the reasonable inference is that both parties regarded their contract as made with reference to the existing English law, and the lex loci contractus, and not the lex loci solutionis, governs its interpretation.

 

[COZENS-HARDY M.R. The widow was no party to the contract; she has a statutory and independent right of her own to compensation, and the employers were under a statutory obligation to pay in the event of death: Darlington v. Roscoe & Sons. (1)]

 

The workman might have had the English statute in mind when he accepted the employment abroad. Darlington v. Roscoe & Sons (1) shews that the workman himself has the statutory right also. Had this man only been injured instead of killed, he could have recovered compensation on his return; the same principle ought to be applied in favour of his dependants where the accident results in death.

 

Take the case of a chauffeur or valet engaged in England who goes abroad with his master and meets with an accident; is he to lose this statutory right? The Act applies to British subjects for the time being employed in Malta or elsewhere abroad.

 

(1) [1907] 1 K. B. 219.  [*63]

 

The statement in Maxwell on the Interpretation of Statutes, pp. 212, 213, as to the presumption that the Legislature does not intend its statutes to operate outside the United Kingdom is too general and is not borne out by the cases cited. The real test would seem to be that stated in Attorney-General v. Stewart (1), namely, is it a law of local policy adapted solely to the country where it was made, or is it equally applicable to any country so far as accidents are concerned? It was an Act with a general operation. Acts of this character should be construed generously: Davidsson v. Hill. (2)

 

COZENS-HARDY M.R. This appeal raises a curious and important question. The respondents are a well-known firm of contractors, and they are a British company. They entered into a contract for the erection of certain works at Malta, and for the purpose of that contract they engaged a workman by contract in England and he went out to Malta; he did his work there for some considerable time, and in the course of that work he met with an accident which proved fatal. The claim is made by his widow, who says: Under the Workmen’s Compensation Act I am a dependant, and I am entitled to compensation against the employers by reason of the fatal accident which my husband met with at Malta. The learned county court judge has held that the claim is a good claim. From that the respondent appeals, and the only question for us is whether in point of jurisdiction such a claim can be maintained. In my opinion it clearly cannot. It has been decided beyond all doubt, so far as this Court is concerned, that a separate and independent right is given to the dependant – in this case given to the widow. That is put beyond all doubt in the decision in Darlington v. Roscoe & Sons. (3) There the alleged cause of action arose out of the statutory duty which survived to his executors; and Lord Collins, then Master of the Rolls, said (4): “Here a statutory duty, not to do something, but to pay a sum of money, existed for the benefit of the dependant when she died, and that case” (meaning Peebles v. Oswaldtwistle Urban District Council (5)

 

(1) (1817) 2 Mer. 143, 160.

 

(2) [1901] 2 K. B. 606.

 

(3) [1907] 1 K. B. 219.

 

(4) [1907] 1 K. B. at p. 227.

 

(5) [1896] 2 Q. B. 159. [*64]

 

“seems to me a distinct authority that the right to performance of that duty survived to her legal personal representative”; and in that case I said, and I venture to repeat here (1), that “there was a statutory obligation on the part of the employers in this case to pay in the event which happened a definite sum to the widow, as being the sole dependant of the deceased workman.” Farwell L.J. gives judgment precisely to the same effect.

 

What is the widow’s claim here? She is claiming, not as a party to the contract, not as claiming any rights under a contract made by her or by any person through whom she claims, but she is simply claiming the performance by the defendants of a statutory duty, which statutory duty is said to be found in the Workmen’s Compensation Act. Now that brings us face to face with this proposition. What is the ambit of the statute and what is the scope of its operation? It seems to me reasonably plain that this is a case to which the presumption which is referred to in Maxwell on the Interpretation of Statutes in the passage at p. 213, which has been read by Mr. Waddy, must apply: “In the absence of an intention clearly expressed or to be inferred from its language, or from the object or subject-matter or history of the enactment, the presumption is that Parliament does not design its statutes to operate beyond the territorial limits of the United Kingdom.” But if I had any doubt on the case apart from the section which I am going to refer to, that doubt would be removed by reference to s. 7 of the Act itself, in which there is an extension of the operation of the Act to accidents occurring outside the United Kingdom. It has a very guarded and a very limited application indeed. It applies to “masters, seamen, and apprentices to the sea service and apprentices in the sea fishing service provided that such persons are workmen within the meaning of this Act, and are members of the crew of any ship registered in the United Kingdom, or of any other British ship or vessel of which the owner or …. managing owner or manager resides or has his principal place of business in the United Kingdom,” subject to certain modifications. So that, even in the case of seamen, when they expressly desire to include them, they limit and confine it most carefully to

 

(1) [1907] 1 K. B. at p. 228. [*65]

 

persons who, and who alone, could claim to be entitled to the benefit of this Act. In my opinion the present claimant, who seeks to enforce her statutory right in respect of an accident that occurred in Malta, has not any right to claim the award which she is claiming. In my opinion the appeal must be allowed.

 

FLETCHER MOULTON L.J. I am of the same opinion. The right alleged by the widow cannot be a contractual right, because she was no party to the contract. It must be a statutory right; it arises by virtue of the statute out of an accident happening to a person who has, if I may use the phrase, the status of a workman; that is to say, a person between whom and the person who is sought to be made liable there exists the relationship of workman and employer. And as this is a statutory right, we are driven to inquire what is the ambit locally of the operation of the statute.

 

It clearly cannot apply universally all over the world. I have no doubt, for the reasons the Master of the Rolls has given, it applies to the United Kingdom alone. The accident must be one happening in the United Kingdom to a person there who has the status of a workman to some employer who, in some way or another, is made liable to the jurisdiction of this Act. If that had been so, then I think the widow would have had a good claim, but here it is clear the accident did not happen within those local limits, and in my opinion the decision of the county court judge cannot be upheld.

 

FARWELL L.J. I am of the same opinion. The question is one purely of the construction of the statute. The words of s. 1, sub-s. 1, are so wide that some limitation must necessarily be affixed to them. The words are, “If in any employment personal injury by accident arising out of and in the course of the employment is caused to any workman,” and so on. To my mind the words “any employment” there must be restricted to employment within the ambit of the United Kingdom or on the high seas as provided by s. 7. I do not propose to go through the Act with any particularity. I have looked through the sections several times; but even if a workman could claim to be such within the  [*66] definition of s. 13 so far as regards a contract entered into in England, that would not extend the ambit of the employment, which, as I have already said, must be restricted to employment within the United Kingdom or high seas as already stated; in other words, the generality of the term “workman” in s. 13 is limited by the restriction of the term “employment” apparent from the rest of the Act.

 

It is not, perhaps, absolutely immaterial to point out that absence from the United Kingdom is one of the excuses for not giving notice within six months under s. 2, sub-s. 1 (a).

 

I agree that this appeal must be allowed.

 

Appeal allowed.