INTERNATIONAL LABOUR OFFICE
STUDIES AND REPORTS
Series M (Social Insurance) No. 2
COMPENSATION
FOR
INDUSTRIAL ACCIDENTS
Comparative Analysis of National Laws
GENEVA
1925
CONTENTS
INTRODUCTION
§ 1 . — Legal Basis of the Right to Compensation
European Systems . . '
Common law or quasi-delictual liability
System of contractual liability
System of legal liability or occupational risk
Anglo-Saxon Systems
§ 2 . — Main Features of Existing Legislation
. . . .
Page
1
1
1
3
4
5
6
PART I
SCOPE OF LAWS ON INDUSTRIAL ACCIDENTS
INTRODUCTION:
The Growth of Modern Legislation
CHAPTER I : Undertakings and Services Covered
§ 1. — Laws applying to persons bound by a contract of employment and employed in the undertakings defined by
the law
Industrial undertakings
Commercial undertakings
Agricultural undertakings
Maritime navigation and fisheries
Domestic service
Disadvantages of the method of enumeration . . . .
Provisions in the laws for the extension of their scope
§ 2. — Laws applying to all persons bound by a contract of
employment
Analyses of legislation in various countries
(Argentina, Australia (Commonwealth, New South
Wales, Queensland, South Australia, Tasmania, Victoria,
Western Australia), Austria, Belgium, Brazil, Bulgaria,
Canada (Alberta, British Columbia, Manitoba, New Brunswick, Nova Scotia, Ontario, Quebec, Saskatchewan, Yukon),
Chile, China, Cuba, Czechoslovakia, Denmark, Ecuador,
Esthonia, Finland, Prance, Germany, Great Britain,
Greece, Hungary, India, Irish Free State, Italy, Japan,
Latvia, Lithuania, Luxemburg, Netherlands, New Zealand,
Norway, Panama, Peru, Poland, Portugal, Roumania,
Russia, Salvador, Serb-Croat-Slovene Kingdom, South
Africa, vpain, Sweden, Switzerland, Uruguay.)
11
14
14
15
18
19
20
21
22
23
24
27
VI
Page
Comparative table of principal undertakings and employments
excluded from the provisions of workmen's compensation
legislation
68
CHAPTER I I : Classes of Workers Covered
82
§ 1. — Introduction
82
§ 2. — Conditions to be fulfilled by beneficiaries under the law .
83
Sex
83
Nationality
83
Age
83
Nature of the occupation
' 84
Existence or absence of remuneration
85
Wage or income limit, and the exclusion of highly paid
workers
91
Period of employment (casual employment)
95
Work in a public or private undertaking
97
The place of work
99
The position of independent workers
100
Comparative table of the principal classes of persons not covered
by workmen's compensation legislation
104
PART II
RISK COVERED
INTRODUCTION
CHAPTER I:
§ 1. —
§ 2. —
§ 3. —
§ 4. —
Notion of Accident
General definitions of accident
Accident considered in its cause
Accident considered in its effect
Distinction between accident and disease
113
.
115
115
117
121
122
CHAPTER I I : Notion of Industrial Accident
§ 1. — General definitions of industrial accident
§ 2. — Relation of accident to course of work
§ 3. — Relation of accident to place of work
§ 4. — Causal relation between accident and work
§ 5. — Risk of work connected with common risks
126
126
130
133
136
139
CHAPTER III: Notion of Fault in Workmen's Compensation
§ 1. — General relation of the notion of fault to the principle of
occupational risk
§ 2. — Fault of the worker
§ 3. — Fault of the employer
§ 4 . — Fault of fellow worker ; fault of third party
Comparative table showing the risks covered by, and excluded
from, workmen's compensation legislation
142
142
143
149
153
156
VII
PART III
COMPENSATION
Page
181
INTRODUCTION
CHAPTER I:
The Basic Wage
§ 1. :— The elements composing the basic wage
§ 2 . — The mode of computing the basic wage
Computation in countries where period over which
earnings are averaged is normally one year . . .
Computation in countries where period for which earnings are averaged is other than one year
. . . .
Basic wage for temporary incapacity
§ 3. — Limits of the basic wage
Maximum limit of the basic wage
Minimum limit of the basic wage
Basis for the determination of the limits of the basic
wage
.
§ 4. — Basic wage of apprentices
Comparative table showing provisions relating to computation of
the basic wage
CHAPTER I I :
The Form of Compensation
§ 1. — The conditions which should be fulfilled by the form of
compensation
The form of compensation in case of death
The form of compensation in case of temporary incapacity
The form of compensation in case of permanent incapacity
§ 2. — Provisions of the laws concerning the form of compensation
First group: The employer or insurance institution
pays a lump sum which is delivered directly to the
beneficiaries
Second group: The employer or insurance institution
pays a lump sum to a judicial authority or a fund,
whose duty it is to make the payment to the beneficiaries
Third group: The employer or insurance institution
pays a pension to the beneficiaries
CHAPTER I I I : Compensation in Case of Death
§ 1. — The categories of relatives entitled to compensation . .
§ 2. — The total amount of compensation
: .
The relation between the-total amount of compensation
and the basic wage
The maximum and minimum limits of total compensation
§ 3. — The distribution of compensation among the relatives . .
§ 4. — Allowances for funeral expenses
182
183
185
186
190
191
192
192
193
193
194
196
216
216
216
217
217
218
218
218
219
221
221
224
224
228
230
233
Vili
Page
Comparative table showing provisions relating to compensation in
case of death
CHAPTER IV: Compensation in Case of Incapacity for Work
. . . .
§ Í . — The classification of incapacity
§ 2. — The evaluation of incapacity
The bases of evaluation
The methods of evaluation
Classification of countries according to method of
evaluation adopted
§ 3. — The waiting period
§ 4. — The amount of compensation
The amount of compensation for permanent total
incapacity
The amount of compensation for permanent partial
incapacity
The amount of compensation in case of temporary
incapacity
The amount of compensation for very seriously injured
workmen requiring the constant attendance of
another person
§ 5. — The review of compensation
Comparative table showing provisions relating to compensation in
case of incapacity for work
CHAPTER V:
Medical Aid
234
254
254
257
257
258
261
262
265
265
267
269
270
273
276
306
§ 1. — The elements of medical aid
Medical aid proper
Artificial limbs and vocational rehabilitation . . . .
(Austria, Belgium, France, Germany, Italy, Netherlands, Spain, United States.)
§ 2. — The limits of medical aid
§ 3. — The organisation of medical aid
Comparative table showing provisions relating to medical aid .
307
307
309
317
318
321
PART IV
GUARANTEES
CHAPTER I : Introductory Remarks
329
CHAPTER II: General Notions of Industrial Accident Insurance . . .
§ 1 . — The nature of industrial accident insurance .'
§ 2. •— Types of industrial accident insurance institutions . . .
Fixed premium companies
Employers' mutual insurance societies
Independent public institutions and State Funds '. .
335
335
336
338
338
339
—
IX
Page
§ 3. — Taking the risk and self-insurance
§ 4. — Financial systems of industrial accident insurance.. . . . .
Distribution systems
Fixed premium systems
Systems of distribution of capital
§ 5. — Financial working of an industrial accident insurance.
institution
Distribution systems
Fixed premium systems
§ 6 . — Reserves
,
Distribution systems
Fixed premium systems
§ 7. — Peculiarities in the administration of industrial accident
insurance institution
Selection of risks
Administrative and accessory expenses . . . . . . .
§ 8. — Social efficiency of an industrial accident insurance institution
CHAPTER I I I :
Legislation
A. — Voluntary insurance legislation
Group I: Voluntary insurance legislation without special security funds
1. Summary of one legislative system: Great Britain
2. Similar legislation
Group II : Voluntary systems of insurance legislation
with special security funds .
1. Summary of one legislative system: France . .
2. Similar legislation
'
B. — Compulsory insurance legislation
Group I I I : Compulsory insurance with liberty to choose
the insurer
1. Summary of one legislative system: Italy . . .
2. Similar legislation
Groups IV and V: Compulsory insurance with a specified
insurer
Group IV. Insurance by trade associations
1. Summary of one legislative system : Germany . .
2. Similar legislation
Group V: Compulsory assurance with a specified assurer .
consisting of a special institution (of a non-industrial character)
. - . . . . . '
1. Summary of one legislative system : Switzerland
2. Similar legislation
340
341
341
342
344
347
347
354
355
356
357
359
359
361
363
366
366
366
367
375
378
378
394
404
406
406
416
423
424
424
430
434
435
440
X
PART V
PROCEDURE FOR OBTAINING COMPENSATION AND
SETTLEMENT OF DISPUTES
CHAPTER I: Uncontentious Procedure
§ 1 . — Notification of the accident
Object of notification
Cases to be notified
The persons required to notify
The authorities -to be notified
Form and contents of the notice
§ 2. — Enquiries
Cases for enquiry
Authorities competent to open an enquiry
Form and scope of the enquiry
I 3. 1 — Medical certificates and supervision
Certificates accompanying notice of the accident. . .
Certificate submitted after notice of the accident . .
Medical supervision
Laws making no provision for medical certificates or
supervision
CHAPTER II:
Litigation
Page
448
448
448
450
454
466
473
481
481
486
489
499
499
502
505
509
511
§ 1 . — Competence of ordinary judicial authorities
Actions
Competent authorities
Review of compensation
§ 2. — Competence of special judicial authorities
Special and ordinary authorities combined
Special authorities
Conclusion
. . . . ,
512
512
519
521
524
525
539
557
PART VI
THE POSITION OF FOREIGNERS
IKTRODUCTION
CHAPTER I: Conditions for Compensation in Case of Incapacity . . .
The victim of the accident is resident in the country and was
resident there at the time of the accident. . . . •
The victim of the accident ceases to reside in the country . . . .
The victim of the accident was not resident in the country at the
time of the accident
563
572
574
575
584
XI
Page
CHAPTER I I : Conditions for Compensation in Case o] Death
The representative is resident in the country and was resident
there at the time of the accident
.
The representative ceases to reside in the country
The representative was not resident in the country at the time of
the accident
Tabulated summary of the conditions for the compensation of
foreign victims of accidents or representatives of such . . . .
APPENDIX: List of Legal Texts chiefly used in the Report
587
590
590
59"4
598
613
INTRODUCTION
There can be no doubt that preventive and precautionary
measures, applied with intelligence and attention to detail, result
in a considerable reduction in the number of industrial accidents;
but even an ideal preventive organisation will not altogether
remove the risk of accident. Industrial accidents can never be
wholly eliminated from the scheme of things. It will always be
necessary to determine what are the rights of the victims and what
are the liabilities of employers, and this is the whole object of
legislation dealing with compensation for industrial accidents.
§ 1. — Legal Basis of the Right to Compensation
EUROPEAN SYSTEMS
It may be well briefly to recall the chief landmarks in the development of the legal conceptions which have predominated in the
determination of the rights of workers and the liabilities of employers in the matter of industrial accidents: namely, common law,
contractual liability, and what is known as legal liability or
occupational risk.
Common Law, or Qiiasi-Delictual Liability
The basis of the right to compensation for industrial accidents
was at the outset sought in the classical conception of liability
which is contained in civil codes founded on Roman law.
According to the principles of common law, liability only exists
if some blame attaches the employer individually; the victim of
an industrial accident can only obtain compensation if he can show
the employer to have been at fault. Under this system, therefore,
the employer is not liable to pay compensation for damage due either
solely to the fault of the worker or to chance, or to force majeure,
or to some risk inherent in the work itself, and unconnected with
any defect either in the installation or the working of the undertaking, or in the selection of the worker. In such cases the worker
is not entitled to any compensation.
i
_
2—
On the other hand, the employer is liable in the event of any
defect either in the installation or equipment of the undertaking
or in the organisation, management or supervision of the staff,
or in the choice of means for carrying on the work, or in the selection of the worker, due account being taken of the difficulties of
the work to which he is put. In such cases the employer is required
to pay to the victim or to his assigns full pecuniary compensation
. for the damage inflicted, always provided that the claimant can
prove that the employer is to blame.
A system of this nature would appear to be to the advantage
neither of the employer nor of the worker.
It is often difficult, and sometimes even impossible, for the worker
or his assigns to adduce the requisite proof of the employer's
responsibility either because the state of health of the victim or of
those persons whose evidence is indispensable makes such proof
impossible, or because conditions on the scene of the accident
cannot be reproduced, since they have been modified by the
accident itself. The process of proof will give rise to disputes, and
will lead to litigation which will delay the assessment of the compensation to be granted. In view of the fact that, in almost all
cases, the victim is urgently in need of compensation, the natural
result will be to embitter relations between workers and employers.
Further, when he is shown to be at fault, the employer is liable,
in the event of serious accidents, to pay heavy compensation, the
amount of which he cannot foresee.
Finally, a large number of accidents cannot be attributed to
the fault either of the employer or the worker. Statistics dealing
with the distribution of industrial accidents according to their
causes and to the liabilities to which they may give rise, are somewhat rare and out of date, and their scientific value is questionable,
if only because of the difficulty of exactly determining the causes.
of an accident. The spectators of a sudden accident seldom agree
in their estimate of the conditions under which it occurred.
In Europe there are only the German, Dutch, and Norwegian
statistics. The German statistics of 1887, 1897 and 1907 were
prepared by the Imperial Insurance Office on information furnished
by the employers. The Norwegian statistics of 1899, 1903 and
1906 were drawn up by the State Insurance Office on information
supplied to its agents by the employers or by factory inspectors.
The Dutch statistics were collected by the State Insurance Bank.
These statistics give the following distribution of accidents according to their causes:
— 3 —
DISTRIBUTION
OF
INDUSTRIAL
ACCIDENTS
ACCORDING
TO
CAUSES
(Percentages)
Germany >
Norway
Causes
1S87
1897
1907
18951899
19001903
%
s
19041906
%
1.49
Fault of employer
20.47 16.81 12.06 0.70 0.43
26.56 29.89 41.26 7.24 4.82
6.47
Fault of worker
Fault of both employer
and worker
4.61 4.66 0.90
Fault of fellow worker
or third party
5.94 2.17 1.39
1.01
3.40
5.28
Occupational risk (involving no considerations of blame)
44.96 42.05 37.65 89.89 93.36 91.03
2.19
Miscellaneous
1.31
Number of accidents
covered
—
—
81,248 9,320
Netherlands 3
19031906
9,493
10.46
6.33
1.84
75.59
5.77
6,991
i R E I C H S - V E R S I C H E R U N G S A M T : Gewerbe-Unfallstatistik
für das Jahr 1397 und
Vol.
II, Table 2.
2
RIKSFORSIKRINGSANSTALTEN: Ulykkesforsikringen,
1904-1906, Table 2.
s RIJKSVERZEKERINGSBANK : Onfferoilenstalisiieft, 1903-1906, Table 6.
—
1907,
The above table is inconclusive as to the proportionate liability
of workers and employers, in view of the fact that available statistics
on the subject vary too considerably. One important fact, however,
may be noted, namely, that the number of accidents which cannot
be attributed to the fault either of the worker or of the employer
is very large. It varies between 37 per cent, and 45 per cent, in
Germany, and in Norway is as high as 90 per cent.
These percentages are a striking proof of the inadequacy of the
principles of common law, which confer no right to compensation
except in cases where the employer is at fault, that is to say, in
20 per cent, at most of the total number of cases. Hence the
need for finding other notions and other principles.
Two systems have received attention: in the first place, that of
contractual liability, and secondly that of legal liability, better
known in its wider form as the principle of occupational risk.
System of Contractual Liability
Under the system of contractual liability the worker's right
to compensation arises not from the fault of the employer, but
out of the contract for the hire of the worker's services, which entails
for the employer an obligation not only to pay the agreed wage,
but also to see to the safety of his workers, and consequently to
_
4 —
ensure that they leave his undertaking at the expiration of their
work in a sound state of health.
Any accident which occurs in the course of work is presumed to
be attributable to the conditions of the work and, in principle,
entitles the victim of it to compensation. If the employer wishes
to clear himself of liability to compensation, he must rebut the
presumption of liability by proving that the accident was due to
the fault of the victim, to chance, or to force majeure.
Thus, not only is the onus of proof removed from the worker,
but the employer is made responsible for accidents due to unknown causes. This is clearly a considerable advantage for the
worker.
But accidents which are due to the fault, however inconsiderable,
of the worker, to chance, or to force majeure, debar the victim
from compensation. Further, there is still a possibility of litigation
since, in many cases, the employer endeavours to rebut the presumption of his own liability. The attempt therefore to solve the
question on these lines has been unsuccessful and has found no
favour with legislators. We thus arrive at a further solution,
namely, that of legal liability.
System of Legal Liability for Occupational Risk
The system of legal liability is a generalisation of the principles
of Roman law dealing with the de facto responsibility arising out
of ownership or control: that is to say, the principle that, apart
from any idea of responsibility, compensation for damage caused
by a given object must be paid by the owner thereof. Liability
ceases to be referable to the actual fault of the person who acts
or possesses, i.e. to the fact that he is individually to blame. The
mere damage caused by a thing or by an action involves what is
known as objective responsibility and thus entails liability. The
obligation to pay compensation is thus rooted in legal theory. It is
sufficient if the claimant proves the existence of a chain of causation
between the thing or the action and the resulting injury.
As applied to industrial accidents, the theory of objective responsibility or of legal liability culminates in the system which is known
as the system of occupational risk.
An employer who sets on foot certain activities and who surrounds himself with workers and machines, creates ipso facto an
organisation, the working of which may cause, and does in practice
cause, injuries, the compensation for which, apart from any idea
of fault, falls upon the employer himself. The inherent risks of
— 5 —
labour are consequent upon the normal development of human
activity, and the sum of these risks constitutes that occupational
risk which covers all industrial accidents. The pecuniary burdens
arising out of industrial accidents are one of the normal liabilities
of the undertaking, like repair or amortisation of plant, upkeep
of premises, and the wages and salaries of workers and managers.
Compensation should therefore be one of the overhead charges
of the undertaking, and it naturally falls upon the employer.
ANGLO-SAXON SYSTEMS
In Anglo-Saxon countries the development of the principles
and legal theories on the subject leading up to the principle of
legal liability has proceeded on appreciably different lines.
Common law in Anglo-Saxon countries, although it is rooted
not in Roman law but in legal practice, is not substantially different
from the European common law as contained in the various civil
codes from the beginning of the nineteenth century. According to
Anglo-Saxon common law, each individual must himself bear the
consequences of accidents of which he is the victim, unless such
accidents are attributable to the fault of a second party who. in the
case of industrial accidents, is the employer. The employer is
only liable in the case of accidents which are the result of torts
or negligence, provided always that the claimant can furnish
proof of the tort or negligence in question. Common law makes
the employer liable for faults committed by persons in his employ,
but this liability only extends to injury caused to outside parties
and does not cover workers in the undertaking itself. According
to the theory of "common employment", the worker who agrees
to work with other workers is regarded as accepting the risk of any
accident of which he might be the victim as the result of any action
on the part of his fellow workers.
The development of machinery and of large industrial undertakings, and the increasing number of accidents made it necessary
to seek wider principles better adapted to modern labour conditions. The law stepped in and superseded the principles of common
law and "common employment", by extending to the case of injuries inflicted on fellow workers the employer's liability for faults
committed by his workers as established in common law in respect
of injuries to outside parties. This is the object of the Employers'
Liability Act of 1880.
_ 6—
The final stage in this development was reached in the British
Act of 1897. This Act was inspired by the principle of legal liability
for occupational risk and made provision accordingly for the payment of compensation quite irrespective of the question whether
or not the acc'dent was due to any negligence on the part of the
employer.
In the Dominions, the development of legal theory on the subject
has proceeded on virtually the same lines as in Great Britain.
§ 2. — Main Features of Existing Legislation
During the last 40 or 50 years the principle of occupational risk
has been successively adopted by the legislative systems of almost
all countries. It has had a considerable influence on the development of the various national legislative systems of compensation
for industrial accidents, and has been mainly instrumental in
shaping them on lines which it will be well now briefly to describe.
It is clear that the unrestricted application of the principle of
occupational risk determines immediately the scope of the various
systems of legislation concerning industrial accidents as regards
the questions, what undertakings should be subjected to the system,
what workers should benefit thereby and what risks should be
covered.
In principle, when some injury occurs which is attributable to
the work, the legal basis of the worker's right to compensation and
of the employer's liability to pay compensation is the same, whether
the undertaking be large or small, whether the work carried on
therein be considered as dangerous or as involving only an insignificant risk, whether the undertaking be industrial, commercial or
agricultural, whether the worker's pay is low or high, whether or
no he is a manual worker, and finally, whether he is the victim of
an industrial accident or of an occupational disease.
In modern practice, the principle of occupational risk has not
been followed out to its logical conclusions, and the various systems
of national legislation contain important limitations and exceptions
to the principle, which limitations and exceptions vary not a little
as between different countries. The various legislative systems
began with occupations involving particularly serious risks such as
mining, navigation, railways, manufacture of explosives, etc. They
were then progressively extended to cover industrial and commercial
undertakings using mechanical power of one kind or another. They
are now tending more and more to include all industrial, commercial
— 7 —
and agricultural undertakings, whatever their size and whatever
the nature of the plant which they employ.
At the outset, the beneficiaries were mainly manual workers
whose wages did not exceed a certain figure. At the present day,
the distinction between manual and non-manual workers is tending to disappear and the wage limit is either rising or has been
abolished. Earlier systems of legislation covered only the risk
of accident properly so called. Risk of occupational disease was
either omitted or, in many cases, explicitly excluded. Nevertheless,
the principle of occupational risk demands that compensation
should be paid on account of occupational diseases, and practised
physicians are with increasing certainty determining the occupational origin of a larger and larger number of diseases due to labour.
Thus, under the twofold influence of the progress of medical
science and of the principle of occupational risk, legislation is
tending to guarantee compensation for occupational diseases in
an ever growing number of the systems which deal with industrial
accidents.
The consequence of all systems based on the principle of occupational risk is to make the employer liable not only for accidents due
to his own fault, but also those which are due to the unintentional
fault of the worker, to chance, to force majeure or to unknown
causes. This system naturally leads to a compromise. The
employer relinquishes the protection afforded him by common law
in the event of an accident which is not attributable to his own
fault, and the worker relinquishes his right to some portion of
the total compensation which he can claim in the event of the
demonstrable fault of the employer, in order to obtain the benefits
of compensation in cases where accidents are due to his own unintentional fault, to chance, to force majeure or to unknown causes.
Occupational risk, therefore, necessarily involves the assessment
of fixed compensation. Hence the existence in the various legislations of scales based on the wages of the victim and drawn up with
due regard to the seriousness of the accident or, 'n the event of
death, to the number and circumstances of the deceased's assigns.
A natural result of the all-round application of the principle of
occupational risk is that the number of disputes concerning the
responsibility either of the worker or of the employer is considerably
diminished. The introduction into legislation of fixed scales of
compensation has done away with most of the disputes which
formerly took place over the amount of compensation due. Disputes,
however, still occur, and they are generally concerned with the
— 8—
estímate to be made of the degree and duration of disablement.
They give rise to questions which are medical and occupational
rather than legal. The realisation of this fact has resulted in a
simplification of legislative procedure, the creation of arbitration
councils and special courts of a technical and occupational nature,
which more and more tend to be influenced or even dominated by
doctors, workers and employers who act thereon as experts, or
even as judges.
Mention should finally be made of a characteristic which, although
not a direct outcome of the principle of occupational risk, is none
the less exceptionally important and is perhaps the outstanding
feature of recent developments in industrial accident legislation :—
namely, the predominant part played by the organisation of security
for the payment of compensation.
It is not sufficient to assert the principle of occupational risk and
to determine what undertakings are subject to it, what workers
benefit, what risks are covered by it, or what compensation should
be fixed. Workers must also be given a guarantee that they
will receive the compensation due to them.
The first and simplest of the methods discovered by legislation
to give such security to the victims of industrial accidents or occupational diseases, or their assigns, consisted in making compensation
a first charge on the property of the debtor. But it is clearly
possible that this guarantee might be inadequate in many cases.
It does not guarantee the creditor against the risk of the debtor's
bankruptcy, and such risk may be particularly serious in the case
of a small employer whose whole fortune is sometimes inferior to
the capitalised value of a pension payable as the result of an
accident followed either by death or by total and permanent
incapacity.
Many attempts have been made to discover systems affording
greater security, either by means of thé constitution of a national
guarantee fund covering the risk of bankruptcy on the part of the
employer who is liable or, more generally, by compelling employers
to insure with institutions the operations of which are controlled
by the State, or to become members of district or national mutual
insurance societies. The organisation of security for payment as
supplementary to the system of compensation is continually gaining ground, and insurance in its various forms tends yearly to
bulk more largely in the whole system. The object of insurance
(and it has succeeded in its aim) is to distribute the risk over a
large number of undertakings and a large number of workers, and
— 9 —
consequently to obtain a more or less constant average of compensable accidents, according to number and seriousness, and to fix in
a comparatively stable manner the charges which fall upon employers in the form of contributions to the guarantee funds, premiums to insurance companies or contributions to mutual insurance
societies; secondly, to substitute for the individual liability of
each employer the collective liability of all employers in the same
occupation or district, or throughout the nation.
*
*
*
We may now proceed, on the following plan, to a comparative
analysis of the various systems of legislation 1 .
First Part.
Scope of the various Legislative Systems : Undertakings covered
and Workers benefiting.
Second Part.
Risks covered: Industrial Accidents.
Third Part.
Benefits due to Injured Workmen and to their Dependants.
Fourth Part.
Guarantee Systems.
Fifth Part.
Notification of Accidents and Contested Cases.
Sixth
Part.
Position of Foreigners.
1
The present report contains no comparative analysis of the legislative
systems in force in the United States or in Mexico. In view of their extent
(i.e. more than 60 legislative systems) it has been thought desirable to deal
with them in a special report, which will be published later.
PART I
SCOPE OF LAWS
O N | I N D U S T R I A L ACCIDENTS
INTRODUCTION
THE GROWTH OF MODERN LEGISLATION
A first measure of the value of the protection afforded to the
workers by any law on compensation for industrial accidents
is given by its scope, in other words, by the number of workers
to whom it secures such compensation. However wide it may
be with respect to the risks covered, the rates of compensation
allowed, and the systems of guaranteed payment set up, the
law cannot be considered satisfactory to the workers if the benefits
it confers are limited to a small proportion of those liable to
become the victims of accidents. The determination of the
scope of the law is therefore of great interest, both to the wage
earner on whom it confers rights and to the employer on whom
it imposes burdens.
Important as the scope of these laws may be from the national
point of view, it is no less so from the international point of view
to men and institutions engaged in an endeavour to standardise
the burdens of employers as much as possible, in order to secure
fair play for the competition between national industries and
acceptable conditions of employment for the workers, while taking
into account the actual development of the legislation of the different
countries.
— 12 —
In its inception half a century ago the law regarded the paid
worker from the point of view of the undertaking in which he
was employed, and covered only workers in certain classes of
undertakings considered as presenting particularly serious risks
of accident. By degrees and at a rate varying from country to
country, the scope of the law was extended, and tended more
and more to secure the benefit of compensation for industrial
accidents on the principle of occupational risk for all paid
workers.
This extension took place by one of two methods. The first,
oldest, and most widely adopted method was simply a development of the original system of determining the scope of the law.
The worker was still considered from the point of view of the
undertaking in which he was employed, but the classes of undertakings enumerated became more and more numerous, the lists
longer and longer. Classes of undertakings not enumerated in the
list were excluded. Such has been the line taken by legislation in
the following countries: Argentina, Austria, Belgium, Brazil,
Canadian Provinces, Chile, Cuba, Czechoslovakia, Esthonia, Ecuador, Finland, France, Germany, Greece, Hungary, Italy, India,
Japan, Latvia, Lithuania, Norway, Panama, Peru, Poland, Roumania, Salvador, Spain, Switzerland, Uruguay.
Under the second method the worker is considered from the
point of view of carrying on an occupation in the service of an
employer and receiving remuneration, but no account is taken of
the undertaking in which he is employed. There is no enumeration
of undertakings, and workers who are not explicitly excluded are
subject to the law. The chief countries in which compensation
legislation has developed in this direction are : the Australian States,
Bulgaria, Denmark, Great Britain, Irish Free State, Netherlands,
New Zealand, Portugal, Russia, Serb-Croat-Slovene Kingdom,
South Africa, Sweden.
Ultimately all these laws apply to individual persons, but they
do so on different systems; some take into account both the fact
of employment and the undertaking, others simply the fact of
employment irrespective of the undertaking. It therefore becomes
necessary to consider the scope of the law, first with respect to
undertakings and secondly with respect to persons. There is all
the more need for doing this, as the law has generally not developed
along the lines of either system exclusively. Laws which enumerate a limitative list of undertakings do not always confer
the advantages of compensation on all the workers employed in
— 13 —
these undertakings. Similarly, laws, the scope of which is defined
by a general formula covering the different occupations of wage
earners, may make exceptions for certain classes of undertakings
or persons.
Consequently, this first part must be divided into two chapters,
the first dealing with the undertakings and services subject to
legislation on the compensation for industrial accidents, and the
second with the beneficiaries properly so called under such legislation.
CHAPTER I
UNDERTAKINGS AND SERVICES COVERED
§1. — Laws applying to Persons bound by a Contract of Employment
and Employed in the Undertakings defined by the Law
It has already been explained that the principle of occupational
risk, which, when compensation laws were inaugurated, applied
only to dangerous occupations, has gradually been extended in
several states to all undertakings and services. In many countries
the law has not yet reached this stage of universality, and its scope
is defined by an enumeration of general classes of undertakings or
branches of occupation, an enumeration which may be either
strictly limitative or more widely descriptive. This was the
method followed by the French legislature in 1898, who decided
to include only industry because it alone exposed the workers to
a serious and constant risk of accident, and to leave commerce and
agriculture subject to the provisions of the Civil Code. It was also
the method which had previously been adopted in 1885 by the
German legislature, and has since been followed in the laws of
several other countries.
The method of enumeration permits of the exclusion of any
given branch of industry or occupation for reasons of expediency.
But with this method it is not sufficient for establishing the right
to compensation that the relation between the person applying
for compensation and the person applied to should be that of
worker to employer. In addition, the nature of the work or the
importance of the undertaking must be expressly defined by the
law. Therefore the right to compensation cannot arise unless the
law expressly or tacitly provides that a given undertaking is covered
by special legislation on accident compensation. For this purpose
use may be made either of the limitative method of enumeration
or of the mixed method, which, besides naming specified undertakings, includes a broadly descriptive enumeration of undertakings
or occupations.
— 15 —
The limitative method of enumeration has been adopted in the
laws of most of the Canadian Provinces (Alberta, British Columbia,
Manitoba, New Brunswick, Nova Scotia, Ontario) ; the descriptive
method by the following States among others : Argentina, Austria,
Belgium, Brazil, Chile, China, Czechoslovakia, Esthonia, Finland,
France, Germany, Greece, Hungary, India, Italy, Japan, Latvia,
Lithuania, Luxemburg, Norway, Poland, Roumania, Saskatchewan,
Spain, Switzerland, Uruguay, Yukon.
The analyses of these national Acts in the second part of this
chapter give the enumerations in detail, which vary considerably
from country to country. These analyses show better than a
comparative study, which in this respect cannot be other than
fragmentary, what the limits are for each of the national laws.
Nevertheless, the chief kinds of activity subject to regulation
will be briefly reviewed: namely, industry, commerce, agriculture,
shipping, fishery, and domestic service, followed by a consideration
of the chief disadvantages of the method, and the measures
adopted in the different laws for extending their scope.
INDUSTRIAL UNDERTAKINGS
The laws in this group apply very generally to industrial undertakings, which, owing to the risk of accident, were the first to
attract the attention of the legislator. The most important are
mining (mines, surface mines, quarries) and manufacture (mills,
factories, work-yards, building) as well as undertakings which,
although they cannot properly be described as industrial undertakings, are similar to them in the risks run by the workers, such
as undertakings in which explosives are used. Yet in certain
countries there are sometimes important limitations to the liability
of industrial undertakings under special compensation legislation,
whether because a smaller risk of accident would seem to justify
such limitation, or because the practical administration of the Act
is difficult in undertakings of secondary .importance. These
limitations relate in particular to the number of paid workers
employed in the undertakings, the importance of the risk (use of
machinery), the purpose of the undertaking, the permanent or
occasional nature of certain undertakings, etc.
Number of Workers
Under certain laws industrial undertakings are not subject unless
they employ a minimum number of workers and employees. The
— 16 —
legal minimum has been fixed at 100 in China, 20 in Austria and
India, 15 1 in Japan, 10 in Germany, 5 in Poland2, Chile, Esthonia,
Latvia, and Yukon.
Certain countries exclude specific kinds of employment unless
a minimum number of workers is employed. Thus the Italian
law excludes certain building, repair, transport, etc. undertakings
enumerated in Section 1 (2) of the Act, if less than six workers
are employed, and the Finnish Act excludes the building and
maintenance of roads and bridges if less than five workers are
employed at the same time. The object of all these limitations
is to exclude from the benefits conferred by compensation legislation undertakings in which the practical administration of the
law would meet with difficulty.
Certain laws exclude small undertakings defined in a rather
different way. Thus the Finnish Act does not apply to undertakings in which only the employer, his wife and their children
are employed. The Austrian and Czechoslovak Acts exclude the
erection of certain buildings in rural districts, provided that the
work is executed by only the builder, the members of his household,
or other inhabitants of the same commune who are not building
workers by trade.
Minimum
Risk
Several laws exclude industrial undertakings in which there is
no serious risk of accident, especially if they make no use of
mechanical power. This condition of exclusion is to be found in
the laws of the following countries among others:
Argentina: Factories, workshops and undertakings in which only
human power is used;
Austria and Czechoslovakia: Industrial undertakings employing
neither steam boilers nor machinery driven by natural power
or by animals, and undertakings employing merely temporary
machinery not forming part of the permanent plant;
Belgium: Industrial undertakings not specially enumerated in the
Act, and in which machinery driven by other than human
or animal power is used only temporarily;
Brazil : Industrial undertakings in which no use is made of mechanical power;
Cuba: Manufacture of articles in which no use is made of machinery
driven by mechanical or other power;
1
2
Reduced to 10 by the Act of 29 March 1923.
Former Russian Territory.
— 17 —
Finland: Factories, trades, and other industrial undertakings in
which there are no machine tools driven by other than human
motive power, or in which there is no technical plant ;
France: Undertakings in which explosives are not manufactured,
or in which mechanical power is not used :
Germany: Undertakings regularly employing less than 10 paid
workers, not making use of explosives or electricity, or of
steam boilers, or machinery driven by natural or animal
power;
Hungary: Industries not enumerated in the Act in which no use
is made of machinery run by mechanical power, or steam
boilers requiring an official licence;
Italy: Industrial undertakings in which machinery is actuated
directly by the workers using it and those not enumerated
in the Act;
Japan : The Order of 2 August 1916 excludes a certain number of
undertakings provided that machinery is not used;
Norway: Undertakings not using mechanical power or steam
boilers, not being factories or run as factories, not being
enumerated in the Act;
Poland : Undertakings not employing closed steam boilers or not
specially mentioned in the Act 1 ;
Roumania: Industries and trades in which no use is made of
machinery driven by mechanical power (steam, gas, electricity,
combustion or water)2 ;
Uruguay: Undertakings, industries and workshops in which only
human power is used.
Side by side with these general groups of undertakings, specific
undertakings'in which the risk of accident is small may also be
excluded. Thus, in Finland, administrative orders have been
issued excluding watch factories, scientific instrument factories,
boot and shoe factories, etc. The procedure adopted in Japan
was similar (Order of 2 August 1916). In Luxemburg, certain
industrial undertakings and trades in which the risk of accident is
slight are exempt from the liability to insurance, including undertakings for the manufacture of clothing, toilet articles, and foodstuffs.
The limitations arising out of the size of the undertaking and the
use of machinery are not only often found in the same laws; they
1
2
Former Russian territory.
Former Kingdom and Bessarabia.
— 18 —
are sometimes complementary, that is to say, undertakings are
excluded in which the number of workers employed falls below
a certain minimum and in which certain machinery or motive
power is not used. Detailed information will be found in the
second part of this chapter and the appended table.
Object of the Undertaking
The third limitation arises when the object of the undertaking
is taken into account. This condition is to be found for instance
in the province of Saskatchewan, where factories, mines, quarries
or engineering works on a farm and used for the purpose of the
farm are excluded from the scope of the Act.
Permanent or Occasional Nature of the Undertaking
The law may also take into consideration the permanent or
occasional nature of the undertaking, and exclude those which
cannot be made subject to the law owing to their temporary
nature. Thus, in Switzerland, undertakings employing less than
five persons for less than one month are excluded if the work
requires less than 100 days per year.
Parts of Undertakings
Finally, the object has often been to exclude certain parts of
undertakings in which the workers are not exposed to the same
risks as those run by the other workers employed. The Swiss
Act contains provisions of this kind.
COMMERCIAL UNDERTAKINGS
Although several laws, for instance the French Act of 1898,
included certain commercial undertakings in which the risks were
as great as in industrial undertakings, as a rule the extension of
the principle of occupational risk to commerce did not take place
until the adoption of a special system of compensation for industry.
"Industry transforms the articles with which it deals, unlike
commerce, in which there is only exchange", according to a statement of the French Supreme Court 1 .
Now, in many countries exchange operations are not considered
to justify special legislation on industrial accident compensation.
Thus, whereas in certain States all commercial undertakings are
subject to compensation legislation (France, Spain, except banking), in others thay are excluded often with important exceptions,
1
Civ. 3 August 1903; 26 October 1903, D. P. 1904. 1.45; 5 July 1903 (three
decisions).
— 19 —
in particular transport, loading, unloading and warehousing undertakings (Argentina, Brazil, Chile, China, Cuba, Esthonia, Finland,
India, Japan, Latvia, Lithuania, Norway, Peru, Poland (former
Russian Poland 1 ), Roumania, Uruguay).
Some countries include only commercial undertakings of a certain •
importance. Thus, in Germany, undertakings are excluded if the
persons engaged by the employer work less than 300 days a year.
Austria and Czechoslovakia exclude small commercial undertakings in which motive power is not used; Belgium, commercial
warehouses employing less than three workers; Switzerland, commercial undertakings in which heavy goods are not warehoused
and which make no use of mechanical plant for their transport;
the Province of Alberta, commercial undertakings in which there
is no risk of accident.
AGRICULTURAL UNDERTAKINGS
Agriculture was included only by degrees among the undertakings subject to accident legislation. The legal position of
agricultural workers, as far as their right to compensation is
concerned, still differs widely in many countries from t h a t of
industrial workers, b u t the growing use of mechanical power in
agriculture and the consequent increase in the number of accidents
have led in many States to a steady diminution of the inequality.
Moreover, this inequality has already been given consideration b y
the International Labour Organisation, and the International
Labour Conference of 1921 adopted a Draft Convention concerning
the extension to agricultural wage earners of workmen's compensation legislation. In the report prepared by the International
Labour Office on "Special Measures for the Protection of Agricultural Workers", the Office drew attention to the unfavourable
condition of agricultural workers as compared with industrial
workers. The following passage in the report illustrates how
deplorable this inequality may be:
it is inadmissible that the farm worker who drives a wagon-load of beets
to the sugar refinery should not receive any compensation if he is run over by
his wagon while the worker in the refinery who does the same work and
sustains an identical accident on the
same day receives a half-pay indemnity
or a permanent disability benefit2.
1
Undertakings are subject to the Act if they use mechanical power or
steam boilers and employ more than 5 workers, or if they use neither mechanical
power nor steam boilers but employ more than 15 workers.
2
INTERNATIONAL LABOUR OFFICE: Special Measures for the Protection of
Agricultural Workers. International Labour Conference. Third Session, Geneva,
October 1921, p. 99.
— 20 —
Some States have extended the privileges of workmen's compensation legislation to agricultural undertakings either by enacting special legislation for this class of undertaking, or by making
them subject to the regulations for industry (British Columbia,
Esthonia 1 , France, Germany, Italy). Other countries have included
only undertakings in which the risk of accident is as great as in
industry, that is to say, in which mechanical power is used
(Argentina, Austria, Brazil, Chile, Czechoslovakia, Finland, Norway,
Roumania, Spain, Uruguay).
Small agricultural undertakings are excluded in Belgium, for
the Belgian Act relates only to undertakings employing regularly
at least three workers; in Spain, where the law applies only to
agricultural, forestry, and stock-breeding undertakings employing
regularly six workers (and using agricultural machinery driven by
mechanical power) ; and in Luxemburg, where agricultural undertakings are not subject to the Act unless they are at least 10 ares
in size.
Finally, in several States, both European and non-European,
agricultural undertakings are subject in respect of workmen's
compensation to the common law only, e.g. China, Canada
(except British Columbia), India, Japan, Latvia, Lithuania, Poland
(former Russian territory).
MARITIME NAVIGATION AND FISHERIES
In several countries the special risks run by persons employed
in the shipping or fishing industries have led either to their inclusion in general accident legislation, or to the establishment of a
special scheme. The principle of occupational risk has been extended
to shipping in Argentina, Chile, France2, Germany, Italy, Norway,
Roumania, and Spain. Sea fishery is covered in such countries as
Argentina, Germany, Italy, Norway, and Spain. Other countries
require the undertaking to be of a certain importance before it
can be subject to accident legislation. Thus, in Finland, fishery
is included only if it is carried on as a business employing simultaneously more than three paid workers. Belgium, Japan, and
the Baltic States have not extended the principle of occupational
risk to the employment of seamen and fishermen.
1
2
Act of 2 June 1903.
Act of 25 April 1898 amended by Act of 29 December 1905.
— 21 —
DOMESTIC SERVICE .
At first sight it would seem that the problem of extending the
principle of occupational risk to domestic service should be dealt
with as one of the "classes of workers covered". The case is
on the border line, for the provisions of the different laws and
regulations on this point relate on the one hand to a given occupation in the same way as to agriculture, shipping, or fishery, and,
on the other, directly to individual persons working outside an
undertaking subject to the law, but entitled to compensation in
the event of accident. It has nevertheless been thought desirable
for the sake of clearness in exposition to discuss it first in the
chapter on the undertakings and services subject to the law.
Although the risk of accident run by persons employed in
domestic service is small compared with that in industry, the
desire to extend the principle of occupational risk by degrees to
all paid workers has led in several countries to the inclusion of
domestic servants, caretakers, etc., in compensation legislation.
It should be observed here t h a t some national laws, while excluding domestic service in general, expressly include domestic service
performed by workers principally engaged in industrial, agricultural, or other work in undertakings subject to the law. The
German law, for instance, contains a clause under which insurance
is compulsory in respect of domestic and other employment carried
out by the insured on the instructions of the head of the undertaking or his representative, side by side with their principal
employment in the undertaking, whether the undertaking is in
industry, agriculture or shipping. A similar provision is enforced
in Finland, where domestic service as such does not entitle the
worker to benefit by the law, but only if he is employed by a person
employing other workers.
The group of laws covering domestic service in general includes
the French Act of 2 August 1923, extending industrial accident
legislation to domestic servants and other persons employed for
wages or salary in the household of the employer and to caretakers.
In other countries, such as Hungary, only voluntary insurance is
open to domestic workers.
The majority of countries, on the other hand, exclude domestic
service either explicitly or implicitly, domestic servants being
deemed to be paid workers employed outside the undertakings
covered by the law. In this respect the Belgian Act is typical,
for it is based on the idea t h a t domestic workers cannot be considered
— 22 —
to be bound by a contract of employment as defined by the Act
of 10 March 1900, and they are therefore excluded from the Accident Insurance Act of 24 December 1903. Domestic service is
similarly excluded by the laws of the following European countries
among others:
Austria, Czechoslovakia, Esthonia, Finland,
Germany, Italy, Latvia, Lithuania, Norway, Poland, Switzerland.
Outside Europe, a similar exclusion is to be found in Canada
(explicitly in the following States: British Columbia, Manitoba,
New Brunswick, Nova Scotia, Ontario; implicitly in Alberta,
Quebec, Saskatchewan, Yukon), India, Japan, and the Central
and South American States.
DISADVANTAGES OF THE METHOD OF ENUMERATION
. This rapid review of some of the chief aspects of different national
laws which define their scope by the method of enumeration,
whether it be widely descriptive or even limitative, brings out
the sometimes serious disadvantages of this method of procedure.
There are, in the first place, the difficulties inherent in the actual
interpretation of the terms of the law. Often the decision whether
an undertaking is liable or not cannot easily be deduced from
the terms employed in the law, and this may lead to disputes that
cannot fail to be detrimental to the interests of the persons the
law is intended to protect. Thus, in the Netherlands, when the
Act of 1901 enumerating the industries covered came into force
continual disputes between employers, workers, and the bodies
responsible for administering the Act arose out of the question
whether a given industry was liable or not to compulsory insurance 1.
Moreover, even the descriptive method of enumeration may
leave important undertakings outside the scope of the Act. The
line between included and excluded industries may be drawn in
an arbitrary manner, and this difficulty is particularly met
with in distinguishing between dangerous industries and those in
which the risk of accident is only slight. According to the statement made by Mr. Poirrier, who reported to the Senate on the
French Bill of 1898, "although in theory a line of demarcation
between dangerous and safe industries may be conceived, in practice this distinction has seemed almost impossible" 2 .
1
TEMPEL, J. V. D., and BOEKMAN, E.: De Sociale Verzekering in Nederland,
p. 223. Amsterdam.
Senate, 11 June 1895, Journal officiel, p. 724. Quoted by LOUBAT, Traité
sur le risque professionnel, p. 51. Paris, 1907.
— 23 —
Finally, the rapid growth of new branches of industry — a
growth which could not be foreseen by the legislator — may
exclude the workers employed in such industries from the scope
of the law. Thus the laws enacted at the end of the nineteenth
century could not include aerial navigation undertakings or cinematograph undertakings, which are now of such importance and
so dangerous, and which employ so many workers.
PROVISIONS IN THE LAWS FOR THE EXTENSION OF THEIR SCOPS
Mainly with a view to counteracting these disadvantages, the
various national laws contain provisions for extending their
scope.
In the first place, many laws provide for voluntary submission
to compensation legislation by allowing either specified undertakings, or groups of employers and workers t h a t are not covered to
benefit by the law. Provisions of this kind are to be found in the
laws of the following countries among others: Austria, Belgium,
Czechoslovakia, France, Germany, Hungary, Poland, Switzerland,
Uruguay. The scope of the law may be extended not only by voluntary submission, but also by the amendments which the legislative
authorities may at any time introduce in the list of undertakings
covered. With a view to facilitating this extension of scope some
countries have entrusted it either to the executive or to the administrative authorities. Thus, in Austria the Minister of Social
Administration and in Czechoslovakia the Minister of Social Welfare may extend the liability to insurance to undertakings not
covered in which there is a risk of accident and especially of fire.
In Argentina the executive authorities, after consulting the
Department of Labour, may apply the law to industries similar
to those it enumerated. In the Canadian provinces of Alberta,
British Columbia and Ontario the Workmen's Compensation Board*
is empowered to amend the list of undertakings covered. In Chile
the list must be revised and supplemented periodically at least once
every two years. In Esthonia, the extension of the scope of the
law is in the hands of the Workers' Insurance Council, in Latvia,
of the Ministry of Labour. Similar provisions are also in force
in India and Uruguay.
1
The Commission responsible for the administration of the Workmen's
Compensation Act, and for the determination of all questions and disputes
arising under it.
— 24 —
§ 2. — Laws applying to all Persons bound by a Contract of Employment
As already explained, several countries determine the scope of
their laws by making them applicable to individual persons carrying on an occupation in the service of an employer, irrespective
of the undertaking in which they are employed. On this system,
to create a right to compensation it is enough that the relation
between the person applying for compensation and the person
applied to should be that of worker to employer. Incidentally
it should be observed t h a t this is not always the relation when
one person is in the service of another *.
The scope of laws based on this principle is therefore of the
widest, and embraces all undertakings and services in the country
where this system is in force. The British law is founded on
the principle which was introduced by the Act of 1906, amended
in 1923. There are, in fact, no exceptions to the scope of this
Act as far as classes of workers are concerned, for it covers the
whole of industry •— large, medium, and small — commerce,
agriculture, fishery, inland navigation and sea service, domestic
service, etc. Mr. C. M. Knowles, Secretary of the Departmental
Committee on Workmen's Compensation, stated in 1919: "Our
own Act is the most generous 1 have yet come across with regard
to the scope of its application." 2 The British Act has served as
a model for some of the British Dominions, e.g. South Africa,
the Australian States (South Australia, Western Australia, New
South W'ales, Queensland, Tasmania, Victoria and New Zealand),
where all industrial, commercial, and agricultural undertakings
are covered by the Act. A similar formula is used in the Australian
Commonwealth Act for all persons employed in the service of the
Commonwealth.
By the end of the war, a similar system had been introduced
in certain North European States. The Danish Act of 6 July
1916 on accident insurance, amended by the Act of 28 June 1920,
extended compulsory insurance to all undertakings (State, communal and private undertakings). With one exception, t h a t of
jS!1 The relation is not one of worker to employerfbetween a music Jteacher
and his pupil, although the former is under a contract for services with the
latter.
* Departmental Committee on Workmen's Compensation; Minutes of
Evidence, Volume 1, Q. 937 (Cmd. 908).
— 25 —
occasional or temporary domestic servants in the employment of
a person not employing workers liable to insurance, any person
who runs an undertaking of any nature, whether industrial or not,
or who employs in his service manual workers, officials, office
clerks or shop assistants, domestic servants or other persons, is
liable to insure the persons he employs against the risk of accident.
Here, too, liability under the Act is determined by the legal relation
of employer to worker.
The Swedish Act of 17 June 1916, amended in 1917, 1918, 1919,
1920 and 1922, similarly contains no limitative definition of the
industries liable to insurance. It is even as wide in scope, only
home work being excluded. Fishermen who are not deemed to
be independent workers within the meaning of the Act may
insure voluntarily.
The Dutch law, modelled on the system in force in Great Britain,
also applies to all undertakings except those expressly excluded.
Since, however, there are special regulations under the Act of
20 May 1922 for the excluded undertakings (agriculture, stockbreeding, horticulture and forestry), and compensation is payable
for accidents in shipping and sea fishery under the Act of 27 June
1919, the Dutch law ultimately covers all undertakings in the
country, although by somewhat different methods.
The Serb-Croat-Slovene Act of 14 May 1922 and the Bulgarian Act of 6 March 1924 may also be classified in this group.
Whether the formula used is the "all manual or intellectual work "
of the Serb-Croat-Slovene Act or the "all public and private establishments and undertakings " of the Bulgarian Act, in theory it
is the same as that employed in the British Act, which speaks of
"any employment. "
The theoretical scope of the law is as wide in Soviet Russia and
Portugal. In spite of the tendency to limit the scope x of the
legislation of Soviet Russia, all undertakings and services in the
Russian Republic are covered by it. Quite recently, however, a
circular of 23 April 1924 exempted small, self-supporting agricultural undertakings, i.e. not working for the market.
The Portuguese Decree No. 5637 of 10 May 1919, instituting
compulsory insurance against industrial accidents, applies to all
industrial, commercial, and agricultural undertakings. It relates
to the different branches of manual and non-manual work, whether
carried out collectively or individually.
1
Cf. for instance, the Circular of the Commissariat of Labour No. 259/53
of 21 June 1923.
— 26 —
The laws reviewed above, which apply in practice to all persons
bound by a contract of employment, may therefore be considered
from the theoretical point of view the wider in scope.
*
*
*
A study of the undertakings and services subject to the different
laws on compensation for industrial accidents would be incomplete if
the brief general survey were not supplemented by an analysis of the
provisions of each of the laws in force relating to its scope. For
this reason, and in view of the fact that many laws often contain
extremely complex and mutually incomparable lists, it has been
thought advisable to complete the comparative survey by a series
of short analyses, in alphabetical order of countries, as the only
.means of giving for each country considered an accurate view of
the undertakings and services subject to compensation legislation
ANALYSIS OF LEGISLATION IN VARIOUS
COUNTRIES
ARGENTINA
The industries and undertakings enumerated below are subject to the Act
of 11 October 1915 on industrial accident compensation:
(1) Factories, workshops and industrial establishments in which other than
human motive power is used for the work.
(2) The construction, maintenance and repair of buildings, railways, harbours, quays, canals and similar works.
(3) Mines and quarries.
(4) Transport, loading and unloading.
(5) Manufacture and use of explosive and inflammable materials, as also
electrical materials.
(6) Transport and working of machines in forestry and agriculture.
(7) The installation, repair and removal of telephone equipment and lightning conductors.
(8) All industries or undertakings similar to those enumerated above,
if they have been brought under the Act by the executive authorities, after
consulting the Department of Labour, thirty days before the date of the
accident (Section 7).
The more detailed list of undertakings given in Section 7 of the Regulations
of 14 January 1916 is not limitative, for the executive authorities may subsequently bring other industries under these regulations.
AUSTRALIA
Commonwealth
The Commonwealth Workmen's Compensation Act of 1912 covers employment in the service of the Commonwealth (Section 4, subs. 1).
The Seamen's Compensation Act of 1911 covers employment on:
(a) Ships in the service of the Commonwealth;
(¿>) Ships trading with Australia or engaging in any occupation in Australian
waters, and being in the territorial waters of any Territory which is part of
the Commonwealth;
(c) Ships engaged in trade and commerce with other countries or among the
Australian states.
In the case of ships not registered in Australia, the Act as regards classes (b)
and (c) above applies only in relation to seamen shipped under articles of agreement entered into in Australia, and then only while the ships are subject to
the law of the Commonwealth (Section 4).
In addition to home work, the 1912 Act expressly excludes active service
with the naval and military forces (Section 3). The 1911 Act does not apply
(a) to vessels ordinarily propelled with oars (Section 3), (6) to ships in the naval
and military service of the Commonwealth (Section 4, subs. 1 (a)).
New South Wales
The Workmen's Compensation Act of 1916, amended in 1920, covers "any
employment" (Section 5, subs. 1), including employment by local or other
public authorities (Section 4) or by the Government, in so far as the Act would
— 28 —
apply if the employer were a private person (Section 13), and employment
on a New South Wales ship whose first port of clearance and whose destination
are in that state (Section 11).
In addition to home work, the following industries and employments are
expressly excluded from the scope of the Act:
(1) The police force.
(2) Share fishing (Section 11, subs. 4),
Queensland
The Workers' Compensation Acts, 1916 to 1921, amended in 1923, cover the
work of all classes of workers not specifically excluded (Section 9, subs. 1);
specifically including Government employment, in so far as the Act would
apply if the employer were a private person (Section 10); employment on a
Queensland ship in respect of accidents happening while the ship is in any port
in Queensland or within the territorial waters of that state (Section 11),
domestic service (Section 3, subs. 1), and in general employment by any institution or corporation employing workers (Section 3).
The following workers are expressly excluded from the scope of the Act;
(1) Members of the police force (Section 3, subs. 1) ;
(2) Employees in the public services for whom provision is made by the
Public Service Superannuation Act of 1912.
The Act defines the "place of employment" as "the premises, works, plant,
or place for the time being occupied by or under the control or management of
the employer." It follows that home workers are excluded from the scope of the
Act.
South Australia
The Workmen's Compensation Act, 1911, amended in 1920 and 1925,
covers "any employment" (Section 6, subs. 1), including Government employment other than naval or military service (Section 5, subs. 1) employment
by a municipality (Section 4), and employment on South Australian ships
in respect of accidents happening within South Australia or within the jurisdiction of that state (Section 13).
In addition to home work, the following employments are expressly excluded
from the scope of the Act.
(1) Naval and military service (Section 5, subs. 1).
(2) Share fishing (Section 13, subs. 4).
Tasmania
The Workers' Compensation Act of 1918, amended in 1920 and 1921, covers
"any employment," apart from specific exceptions (Section 7, subs. 1), including Government service (Section 6), employment by a local or other public
body or authority (Section 5), and employment on any ship registered in
Tasmania and engaged in the state coasting trade or in trade within the state
(Section 21).
In addition to home work, the following industries and employments are
specifically excluded from the scope of the Act :
(1) Domestic service in a private family, where the servant is under 16 years
of age, or is employed less than eight hours daily, or has at the date of the injury
been in the employment of the same employer for less than 60 days continuously (Section 4).
(2) Share fishing (Section 21, subs. 4).
Victoria
The Workers' Compensation Act of 1915 covers "any employment" (Section 5, subs. 1), specifically including Government employment, in so far as the
— 29 —
Act would apply if the employer were a private person (Section 4, subs. 1),
employment by a municipality (Section 4, subs. 4), employment on'Victorian
ships in respect of accidents happening within Victoria or within the jurisdiction of that state (Section 17), and domestic service (Section 3).
In addition to home work, the Act expressly excludes the police force as
regards members appointed before 25 November 1902 (Section 3).
Western Australia
The Workers' Compensation Act of 1912, amended in 1920, covers "any
employment" (Section 6, subs. 1), including Government employment other
than naval or military service (Section 5, subs. 1), employment by a municipality (Section 4), and employment on Western Australian ships in respect
of accidents happening within Western Australia or within the jurisdiction of
that state (Section 12).
In addition to home work, the following industries and employments are
expressly excluded from the scope of the Act:
(1) The police force (Section 4).
(2) Naval and military service (Section 5, subs. 1).
(3) Share fishing (Section 12, subs. 4).
AUSTRIA
Under the Workers' Accident Insurance Act of 28 December 1887 insurance
is compulsory for:
(1) Factories, mills, foundries, mining of reserved minerals 1 , workyards,
quarries and subsidiary establishments of the above undertakings.
(2) Industrial construction and works connected with the construction of
buildings (Section 1, subs. 2).
(3) Undertakings in which explosives are manufactured or used (Section 1,
subs. 3,i).
(4) Undertakings in industry, agriculture and forestry in which steam boilers
and machinery driven by natural (wind, water, steam, gas, hot air, electricity)
or animal power are used (Section 1, subs. 3, ii).
The Act of 1894 amended by the Act of 12 April 1924 extended the scope of
the original act to include:
(5) All railway undertakings whatever the motive power employed, and all
other undertakings for the transport of passengers and goods by land, sea or
river (Section 1, subs. 1 and 2 of the 1894 Act).
'
(6) Dredging (Section 1, subs. 3).
(7) Industrial undertakings for the cleaning of streets and buildings (subsection 4), canals and chimneys (subsections 8 and 9).
(8) Industrial undertakings for cellarage and storage; wood and coal depots
(subsection 5).
(9) Permanently established theatres (subsection 6).
(10) Professional fire brigades (subsection 7).
(11) Stone-cutting, well sinking and metal forging (subsection 10).
(12) The felling, dressing and transport of timber (Act of 1924).
(13) Hunting (Act of 1924).
The Minister of Social Administration is empowered to make insurance compulsory for the undertakings not. specified in Section 1 of the Act in which
there is a risk of accident and especially of fire (Section 3, subs. 2).
i. The Act applied to mines which could be worked without a licence. Section 1 of the
Act of 30 December 1917 extended the liability to insurance to all mining undertakings
subject to inspection by the mining authorities (Bergbehörden), their auxiliary departments, and undertakings for the production of the timber needed in mining, mineral wax
and asphalt, as also to the smelting of non-reserved ores.
— 30 —
The Act does not apply to undertakings in which machinery not forming part
of the permanent plant is used only temporarily (Section 1, subs. 3, ii), nor to
the erection of one-storey dwellings and other agricultural buildings in rural
districts, provided that the work is executed by only the builder, the members
of his household or other inhabitants of the same district who are not building
workers by trade (Section 1, subs. 2).
Section 4 of the Act excludes persons employed in State, communal or other
public undertakings if they or their survivors are entitled in the event of an
industrial accident to a pension not less in amount than that provided under
sections 6 and 7 of the Act.
The Minister of Social Administration is empowered to exempt certain undertakings covered by section 1, if there is no risk of accident for the persons
employed (Section 3, subs. 1).
Employers in undertakings not liable to insurance may join the scheme
voluntarily for all the workers and employees in the undertaking and for
themselves. In this event they are deemed to have accepted all the provisions
relating to undertakings liable to insurance (Section 6 of the Act of 20 July
1894). Further, employers in undertakings liable to insurance have the right
to insure themselves, their representatives and any other persons who, without
being liable, are nevertheless exposed to the risk ol accident (Section 5).
BELGIUM
The Belgian Act of 24 December 1903, amended by the Act of 27 August
1919, and the Act of 7 August 1921 amending the Acts of 24 December 1903
and 27 August 1919 on compensation for injuries resulting from industrial
accidents divide the undertakings covered into three groups.
(1) The first group includes the following private and public undertakings
irrespective of the number of workers ordinarily employed in them :
(a) Mines, surface mines, quarries ; coke furnaces, manufacture of coalbriquettes; furnaces and workshops for the preparation and treatment
of ores and quarry products ;
(b) Blast furnaces, steel works, works in which iron and other metals are
produced and worked up; foundries;
(c) Mechanical engineering, forges; smithies, locksmiths' and stove workshops, metal working; manufacture of bolts, nails, screws, chains, wire,
cables, fire-arms, knives and other metal utensils or articles;
(d) Plate-glass works, glassworks, crystal glassworks, hollow glass works;
manufacture of pottery;
(e) Manufacture of chemical products, gas and its by-products, explosives,
matches, oils, candles, soaps, paints and varnishes, rubber, and paper;
(/) Tanneries and currying establishments.
(g) Flour-mills ; breweries, malt-houses, distilleries ; the manufacture of
mineral waters; sugar factories;
(h) Masonry, carpentry, painting and all other building trades; chimney
sweeping; earth-works, the sinking of wells, paving, road-making and
other civil engineering work ;
(i) Forestry undertakings;
(/) Transport by land of persons or goods ; undertakings for inland navigation, haulage, towage and dredging, storage,packing,loading and unloading; the operation of telegraphs and telephones;
(k) Undertakings in which steam, air or gas is used, or electricity the power
of which exceeds a limit to be fixed by Royal Decree ;
(/) And, in general, all undertakings in which machinery driven by other
than human or animal power is used otherwise than temporarily.
— 31 —
(2) The second group includes the following undertakings in which a minimum number of paid workers is employed :
(a) industrial establishments which are not included in the groups enumerated above and in which at least five workers are habitually employed ;
(¿>) agricultural undertakings in which at least three workers are habitually
employed ;
(c) commercial houses where at least three workers are habitually employed.
(3) The third group includes the undertakings not enumerated above and
scheduled as dangerous by Royal Decree upon the advice of the Industrial
Accident Commission.
Moreover, heads of undertakings or of branches of undertakings not enumerated in the Act have the right voluntarily to adopt its provisions.
BRAZIL
Under Section 3 of Decree No. 3724 of 15 January 1919 the following
undertakings are subject to the law: construction, repair or demolition of any
kind, e.g. buildings, bridges, roads or railroads, electric tramway lines, telegraphs and telephones and the maintenance of all such works; transport,
loading and unloading; industrial establishments and agricultural undertakings
in which machinery driven by other than human or animal power is used.
Section 6 of the Decree of 12 March 1919 confirming the administrative
regulations of the above Act gives a list of the industries and occupations
covered, but this list is not limitative, and does not exclude other industrial
or agricultural undertakings in which mechanical power is used, nor any work
of construction, maintenance, repair or demolition, nor any other kind of
transport, loading and unloading.
By Section 4 of the Decree of 15 January 1919, the Federal Government,
individual states and municipalities are liable under the Act in respect of the
specified undertakings and occupations.
BULGARIA
Under the Social Insurance Act of 6 March 1924, insurance is compulsory
for all public or private establishments and undertakings.
Section 7 of the Regulations of 25 June 1924 classifies the undertakings liable
to compulsory accident insurance under the following heads :
(1) Mines, quarries and other natural resources, mineral water springs and
the installation of mechanical power.
(2) Industries, crafts, and similar undertakings.
(3) Commerce.
(4) The transport of goods and passengers, including loading, unloading
and warehousing of goods.
(5) Construction, maintenance and demolition of buildings of all kinds;
streets, railways and means of communication.
(6) Agriculture and all special branches of agriculture; forestry and fishery.
(7) Sanatoria, hospitals, dispensaries, artistic and photographic workshops,
cinematographs, theatres, technical bureaux, and other liberal professions.
(8) Public or private hostels, orphanages, charitable institutions, sports
clubs, political and economic societies, scientific societies.
(9) Households employing men and women servants, chauffeurs, grooms or
coachmen.
By Section 4, home-work must also be considered liable to insurance.
Note II to Section 1 of the Act states that insurance is not compulsory
for certain kinds of casual work, namely, seasonal work performed by mowers,
reapers, vineyard workers, rose pickers, woodcutters, and diggers (Section 13
of the Regulations).
— 32 —
CAKADA
Alberta
The Workmen's Compensation Act of 1918 as amended in 1919, 1920, and
1921 covers the industries (establishments, undertakings, etc.) enumerated
in the Schedules of the Act 1 .
The list includes employment in or about coal or other mines, coke ovens
or briquetting plant ; any trade or business connected with lumbering, fishing,
manufacturing, building, construction, engineering, transportation, navigation, operation of boats and ships, operation of warehouses, public utilities,
employment by the Dominion or Provincial Governments and municipal
corporations, moving pictures and theatres, etc., and any occupation incidental
to or connected with any of these.
The Act expressly excludes the following industries:
(1) Farming and ranching (1920 Act, Section 16, subs. 4).
(2) Employment in specified capacities on certain railways (1919 Act,
Section 15).
The Workmen's Compensation Board 2 is empowered to add to, withdraw,
or re-arrange any industries scheduled as coming within the scope of the Act.
It is also open to any employer engaged in an industry not covered by the Act,
upon application to the Board, to have all his workers brought within the scope
of the Act "subject to the approval of the Board and subject to the Board
being satisfied that the majority of the employees are aware of the application
and have not objected to being brought within the scope of the Act" (Section 16).
Neither of these provisions applies, however, in the case of classes of workers
or industries which are expressly excluded from the scope of the Act (1920
Act, Section 1).
Whether or not any industry or any part, branch or department of an
industry is within the scope of the Act, is to be determined exclusively by
the Board (1919 Act, Section 2).
British Columbia
The Workmen's Compensation Act of 1916, as amended in 1918, 1919,
1920 and 1922 is divided into two parts; the first deals with the compensation
of workers for personal injury by accident arising out of and in the course of
employment in the chief industries, certain industries and classes of workers
being expressly excluded. An Accident Fund is set up for the payment of
such compensation, derived from compulsory contributions levied upon all
employers covered by this part of the Act, and administered by a Workmen's
Compensation Board.
Part II applies to the industries and workers not covered by Part I, excepting
domestic service. It is in the nature of an "employers' liability" enactment,
and empowers an injured workman or his dependants to sue the employer
for damages, if the injury is caused by the negligence of the employer or of the
workers in the undertaking or by any defect in the condition or arrangement
of the plant or works.
Apart from travelling salesmen who are not exposed to the risks incident
to the nature of the work carried on in the industry, casual workers and home
workers, Part I applies to the persons employed in the principal industries
and classes of occupation, excepting domestic service.
1
Labour Legislation in Canada as existing 31 December 1920. Published by the Department
of Labour. Ottawa, 1921.
2
The Commission responsible for the administration of the Workmen's Compensation
Act, and for the determination of all questions and disputes arising under it.
— 33 —
Industries covered by Pari I
The list of industries covered by the Act includes the following: lumbering,
mining, quarrying, fishing, construction, building, transportation; operation
of telegraph or telephone systems, metal works, power plants, gasworks,
sewers, municipal police, municipal fire departments, theatres, cinematographs,
' power laundries, warehouses, ships; painting etc.
The provisions of Part I apply also to employment in the service of the
Provincial Government or a municipal corporation as far as the industries
within the scope of Part I are concerned.
Under certain conditions the Board may add to the list of undertakings.
An Amendment Act of 16 December 1922 extended the provisions of the
Act to persons engaged in office or other clerical work, who had been excluded
in the 1916 Act as not exposed to the risk of accident, and to agricultural
workers.
Industries excluded from Part I
Domestic service is expressly excluded from the scope of both Parts of the
Act (Section 74) and travelling salesmen who are not exposed to the risks
incident to the nature of the work carried on in the industry (Section 4 (a))
are excluded from Part I.
On the application of any worker in an industry not within the scope of
Part I, or of any employer in the case of any industry or worker not within
the scope of this Part, the Board may admit the industry or worker within the
scope of this Part (Section 5, subs. 1).
Industries covered by Part II
Part II applies to industries not covered by Part I (Section 70).
Industries excluded from Part II
Domestic service is expressly excluded from the scope of Part II (Section 74).
Manitoba
The Workmen's Compensation Act of 1920, like the Act of British Columbia
analysed above, consists of two parts.
Part I applies to all workers (except casual workers, home workers, and
clerical workers engaged in non-hazardous occupations) in the principal industries and classes of employment except agriculture and domestic service.
Workers in any of the excluded industries may be included, either on the application of their employer or at the discretion of the Workmen's Compensation
Board.
ef. Workers not covered by the provisions for compensation (except agricultural
workers and domestic servants) may secure damages in any case where the
employer's liability can be proved.
No kind of provision is made for the majority of agricultural and domestic
-workers.
Industries covered by Part I
The industries covered by Part I, i.e., establishments, undertakings, trades
and businesses (Section 2, subs. 1) are enumerated in Section 55 of Schedule 1 1 .
They include employment by the provincial Government or any municipal
corporation in respect of industries within the scope of the Act (Section 2,
•subs. 2), lumbering, mining, quarrying, fishing, manufacturing, building,
construction, engineering, transportation by road, rail or water, public
•utilities, etc.
i Cf. op. cit., note 1, p. 32
3
— 34 —
Industries excluded from Part I
Part I expressly does not apply to agricultural work and domestic service
(Section 85), though any worker in these classes of employment may, on the
application of the employer and with the approval of the Workmen's Compensation Board, be brought within its scope. The entertainment industry is not
included among those scheduled as covered by Part I. The operation of
aircraft is expressly excluded (Schedule 1, head 46).
Whether or not any industry or any part, branch, or department of an industry is .within the scope of Part I, is a matter to be determined exclusively by
the Board (Section 46, subs. 2).
Industries covered by Part II
Part II applies to industries not covered by Part I (Section 81).
Industries excluded from Part II
Agricultural work and domestic service are expressly excluded from Part II
(Section 85).
New Brunswick
The Workmen's Compensation Act of 1918, like the Act of British Columbia,
consists of two parts.
Part I applies to all workers except travelling salesmen, clerical workers
in non-hazardous employment, casual workers, home workers and members
of the family of the employer residing with him, in all the principal industries
and classes of employment other than agriculture, domestic service, a police
force, or a fire department.
Workers excluded from the provisions of the Act, with the exception of
agricultural workers, domestic servants and fishermen, may secure damages
in any case where the employer's liability can be proved.
No kind of provision is made for the majority of agricultural and domestic
workers
Industries covered by Part I
The industries (operations, undertakings, employments (Section 2)) covered
by Part I are enumerated in Section 3 l . They include lumbering, mining,
quarrying, manufacturing, building, construction, engineering, operation of
railways and tramways, navigation, public utilities, warehouses, theatres and
places of public amusement, etc., "and any employment incidental thereto
or connected therewith." Employment by the Dominion or Provincial Governments "in so far as they or either of them may, in their capacity as employers.
submit" to the operation of the Act, asalso employment by a municipal corporation, may be included in respect of an industry within the scope of Part I.
Industries excluded from Part I
Part I expressly does not apply to employment in the police force or fire
department of a city, town or municipal corporation, agricultural labour,
domestic service, or employment in the woods in logging and other forms of
timber work.
Any industry not within the scope of Part I may, on the recommendation
of the Workmen's Compensation Board, be brought within its scope by Order
in Council (Section 4).
Moreover, any industry not included may, on the application of the employer,
be admitted by the Board "on such terms and conditions and for such period
as the Board may prescribe" (Section 5).
The Board may by regulation exclude (or re-admit) any industry or industries
1
Cf. op. cil., note 1, p. 32.
— 35 —
in which not more than a stated number (to be fixed by regulation) of workers
is usually employed (Section 6).
Industries covered by Part II
Part II applies to industries not covered by Part I (Section 80).
Industries
excluded from Part
II
Part II specifically does not apply to agricultural work, domestic service,
and fishing (Section 84).
Nova Scotia
The Workmen's Compensation Act of 1915, amended in 1917, 1918, 1919,
1920 and 1922, like the Act of British Columbia, consists of two parts.
Provision is made for compensation for all workers except travelling salesmen, casual workers, home workers, and members of the employer's family
living with him, in the principal industries and classes of employment other
than agriculture, domestic service, a police force or a fire department. Workers
in any of the excluded industries may be included on the application of their
employer, and subject to the approval of the Workmen's Compensation
Board.
Workers excluded from the provisions for compensation with the exception
of agricultural workers and domestic servants, may secure damages in any case
where the employer's liability can be proved.
No kind of provision is made for the majority of agricultural and domestic
workers.
Industries covered by Part I
The industries (establishments, undertakings, works, operations, trades,
businesses (1917 Act, Section 2)) covered by Part I are enumerated in Section 3
of the amended Act of 1915 1. They include any operations carried on in a
factory, and manufacturing, lumbering, mining, quarrying, fishing, building,
construction, engineering, transportation, navigation, railways, public utilities,
warehouses, theatres, etc., and "any occupation incidental to or immediately
connected with any of these" ; wholesale and retail trade appear to be covered
though they are not specifically mentioned. "Fishing" includes share-fishing
(1919 Act, Section 5). Employment by municipal corporations or the Provincial
Government in respect of any industry within the scope of Part I is included.
Similar employment by the Dominion Government may be included in so far
as that Government may in its capacity of employer submit to the .operation
of the Act (1917 Act, Section 1).
Industries excluded from Part I
The following industries and classes of employment are expressly excluded
from Part I: employment in the police force or fire department of a city,
town, or municipal corporation (1917 Act, Section 5), agricultural labour and
domestic service (1915 Act, Section 83). Upon the application of an employer,
the Workmen's Compensation Board may however admit the industry in
which workers in either of the two last named classes are employed, upon such
terms and conditions as the Board may impose (1922 Act, Section 11).
Any industry not within the scope of this Part, except agricultural work and
domestic service, may, on the application of the employer, be admitted by the
Workmen's Compensation Board on such terms and conditions, and for such
period as the Board may prescribe (1915 Act, Section 5).
The Board may by regulation exclude (or re-admit) any industry or industries
in which not more than a stated number (fixed by regulation) of workers, or
i Cf. op. cit., note 1, p. 32.
— 36 —
workers other than temporary workers are employed, the definition of the term
"temporary workers" being left to the Board (1919 Act, Section 4).
Industries covered by Part II
Part II applies to industries not covered by Part I (1915 Act, Section 84).
Industries excluded from Part II
Part II does not apply to agricultural labour or domestic service (1915 Act,
Section 88).
Ontario
The Workmen's Compensation Act of 1914 as amended in 1915, 1916, 1917,
1919, 1920 and 1922, like the Act of British Columbia, consists of two parts.
Apart from home workers and executive officers of a corporation, Part I
of the Act applies to the persons employed in the principal industries and classes
of employment except agriculture and domestic service (Section 109).
Industries covered by Part I
Schedule 1 1 gives a list of the industries for which insurance is compulsory,
that is to say, the employers in which are liable to contribute to the Accident
Fund. The list specifies various kinds of employment in mines, quarries, the
lumbering industry, metal works, chemical works, the manufacture of foodstuffs, the hide and leather industry, tobacco factories, the clothing industry,
building and construction, etc. By an order of the Workmen's Compensation
Board, theatres and cinematographs have been added to the list.
The industries enumerated in Schedule I I 1 of the Act are subject only to
its provisions on compensation. The employers in these industries are not
liable to contribute to the Accident Fund. The industries in question are
considered to be sufficiently important to have no need of collective liability
and to be able to cover their own risks. They include the business of municipal
corporations, public utilities commissions, or any other commission having the
management and conduct of any work or service owned by or operated for a
municipal corporation, etc., railways and tramways (but not the construction
of such railways or tramways if it is carried out by any person other than the
company which owns or operates the railway or tramway) ; the construction
or operation of works for the purposes of any such railway, etc. (subject to the
same reservation) ; the construction or operation of telephone and telegraph
lines, steam vessels and works for the business of a navigation company, of
sleeping, parlour or dining cars; the construction of bridges connecting the
Province with an adjacent province or state.
Industries excluded from Part I
Besides home workers and executive officers of a corporation, and casual
workers, Part I expressly does not apply to agricultural workers and domestic
servants.
Industries covered by Part II
P a r t i i applies to workers, other than home workers and casual workers, in
the industries excluded from Part I (Section 105).
Industries
excluded from Part
II
Part II does not apply to agricultural work or domestic service (Section 109).
Quebec
The Workmen's Compensation Act of 29 May 1909, amended by the Acts
of 1914, 1915, 1918, 1920 and 1922, applies to the following undertakings and
i Cf. op. cit., note 1, p. 32.
— 37 —
classes of work: building; factories, manufactories, workshops; stone, wood
and coal yards; transportation by land or water; loading and unloading; any
gas or electrical business: the building, repairing or maintenance of railways
or tramways, waterworks, drains, sewers, dams, wharves, elevators or bridges ;
mines or quarries; or any industrial enterprise in which explosives are manufactured or prepared or in which machinery is used, moved by power other than
that of man or of animals (Statute of Quebec, Section 7, 321).
Saskatchewan
The Workmen's Compensation Act of 23 March 1911, amended by the Act
of 1920, applies to the following undertakings: railways, factories, mines,
quarries, engineering work, and the construction, repair or demolition of
buildings (Section 2). These terms are defined in the Act as follows:
(1) Railways. This term refers to roads whether owned or operated by a
private person, public company, or municipal corporation, on which carriages
run over metal rails, and includes railways or tramways worked by steam,
electricity, compressed air, or by mechanical power or any combination of
such powers (Section 3, subs. 10).
(2) Factories. This term refers to buildings, workshops or places where
machinery driven by steam, water or other mechanical power is used, and
includes mills where manufactures of wood, flour, meal, pulp or other substances
are being carried on; foundries where metals are sorted, extracted or worked
up; laundries worked by steam, water or other mechanical power; and docks,
wharves, quays, warehouses and shipbuilding yards where goods or materials
are stored, handled, transported or manufactured (Section 3, subs. 5).
(3) Mines. This term means any kind of mine, and includes every shaft
in the course of being sunk, and every level and inclined plane in the course of
being driven for commencing or opening any mine or for searching for or
proving minerals, and all the shafts, levels, planes, works, machinery, tramways, railways and sidings, both below ground and above ground in and
adjacent to a mine, and any such shaft, level and inclined plane of and belonging to the mine (Section 3, subs. 7).
(4) Quarries. This term refers to open cuts from which rock is cut or taken
(Section 3, subs. 9).
(5) Engineering works. This term refers to any work of construction or
alteration or repair of a railway, harbour, dock, canal, sewer or system of
waterworks; and includes any work for the construction, alteration or repair
of which machinery driven by steam, water or other mechanical power is
used (Section 3, subs. 4).
(6) Construction, repair and demolition of buildings. The Act gives no definition of this term. By Section 14, subs. 5, in spite of the exclusion of all agricultural work, the Act applies to the repair or demolition of any building upon
a farm carried out under contract with the owner or occupant of the farm.
The Act further applies to any undertakings and works coming within its
scope which belong to the Provincial Government or a municipality.
The 1911 Act does not apply to agricultural work, nor to any work performed
or machinery used on or about a farm or homestead or for the purpose of
improving such farm or homestead, nor to any of the following employments
on a farm (without restricting in any degree the generality of the foregoing
provisions) :
(a) Threshing, gleaning, crushing, grinding or otherwise treating grain,
sawing wood, posts, lumber or other wooden material, or otherwise treating the
same; pressing hay by any kind of machinery or motive power whether such
machinery or motive power is portable or stationary, and whether it is owned
and operated by the farmer or farmers for whose purpose it is being used,
or by any other farmer or other person for gain, profit or award.
— 38 —
(b) The construction, repair or demolition of any farm building, windmill,
derrick or other structure (Section 14, subs. 1).
The Act expressly excludes :
(1) Buildings, workshops, places or mills on a farm used for the purposes
of the farm.
(2) Mines or quarries on a farm used for the purposes only of the farm.
(3) Ditches, drains, wells, or other excavations on a farm being constructed
or repaired for the purpose of the farm or any adjoining farm (Section 14,
subs. 2, 3, and 4).
Yukon
The Workmen's Compensation Ordinance of 1917 applies to any industry
(establishment, undertaking, trade or business) where not less than five workers
are employed in the same general employment (Sections 2 and 3), including
the exercise and performance of the powers and duties of a municipal corporation, and also the building, repairing, and maintenance of roads, bridges or
other public works carried out by the Government of the Territory (Section 2,
subs. 2).
The Ordinance expressly excludes all industries where less than five workers
are employed in the same general employment (Section 3).
The definition of "industry" appears to be such as to exclude agriculture,
fishing and domestic service.
CHILE
The Act of 8 September 1924 applies to the following industries or occupations provided that not less than five workers are employed:
(1) Nitrate works, salt works, quarries and mines of all kinds; also factories
foundries and workshops.
(2) Undertakings or parts of undertakings in which explosive, inflammable,
noxious or poisonous materials are manufactured or handled.
(3) Transport undertakings whether by land, air, sea, river, lake or canal, and
loading and unloading undertakings.
(4) The construction, repair, maintenance and running of railways, buildings,
harbours, roads, bridges, canals, dams, jetties, aqueducts, sewers, and all
similar kinds of work.
(5) The installation, repair and maintenance of electrical equipment and
of telegraph and telephone systems.
(6) River and sea fishing.
(7) Agriculture, forestry and stock breeding.
(8) In general, all factories, undertakings, and workshops (Section 6).
The Act applies also to the State and to municipalities (Section 9).
CHINA
The provisions for the compensation of industrial accidents in China are
given in the Provisional Factory Regulations promulgated by the Ministry
of Agriculture and Commerce on 29 March 1923 (Decree No. 225). The compensation specified in Section 19 is payable by factories which usually employ
not less than 100 workers, or which are dangerous or unhealthy. Other factories
to which these provisional Regulations do not apply are to be specified by
ministerial decrees.
Section 2 states that foreign factories established on Chinese territory are
also covered by the Regulations.
CUBA
The Act of 12 June 1916 applies to the following undertakings and services:
(1) Undertakings or industries engaged in the construction repair and main-
— 39 —
tenance of buildings, including masonry and related trades; carpentry, locksmiths' work, stone cutting, painting and similar work.
(2) Mines, workyards, salt works, loading and unloading of raw materials
extracted from mines, and transport by river, sea or land.
(3) Fishery; construction of harbours, canals, dams, lighthouses, aqueducts,
sewers, deflecting of water courses, exploitation of water-falls, and all other
similar works.
(4) Generation of gas and electricity, operation of telephone and telegraph
systems, installation of electric wiring and lightning conductors.
(5) Production or use for industrial purposes of explosive, inflammable,
noxious or poisonous materials; street cleaning and sewerage works.
(6) Manufacture of manufactured goods for which machinery driven by
mechanical or any other kind of power is used.
(7) Construction, repair, maintenance and operation of railways and tramways, roads and streets belonging to the State, a province, a municipality or
a private person.
(8) Working up of agricultural or forestry products; depots for coal, wood,
inflammable materials, and building timber.
(9) Theatres and public entertainments.
(10) In general, any similar industry or work not included in the above list
(Section 2).
The provisions of the Act apply to the State arsenals, munition factories and
n dustrial undertakings, as also to provincial councils and municipalities
S ection 10).
CZECHOSLOVAKIA
1
Under the Czechoslovak Act (former Austrian Act of 28 December 1887)
insurance is compulsory for:
(1) Factories, mills, foundries and mining of "reserved" 2 minerals,
workyards, quarries, establishments subsidiary to the above undertakings,
and the smelting of non-reserved ores and undertakings for the production
of mineral gas and asphalt (Section 1, subs. 1 of the Act of 1887 amended by
the Act of 10 April 1919).
(2) Industrial construction and works connected with the construction of
buildings (Section 1, subs. 2).
(3) Undertakings in which explosives are manufactured or used (Section 1,
subs. 3, i).
(4) Undertakings in industry, agriculture and forestry in which steam boilers
and machinery driven by natural (wind, water, steam, gas, hot air, electricity)
or animal power are used (Section 1, subs. 3, ti).
The Act of 1894 extended the scope of the former Austrian Act to include:
(5) All railway undertakings whatever the motive power employed, and all
other undertakings for the transport of passengers and goods by land, sea or
river (Section 1, subs. 1 and 2 of the 1894 Act).
(6) Dredging (Section 1, subs. 3).
(7) Industrial undertakings for the cleaning of streets and buildings (subsection 4), canals and chimneys (subsections 8 and 9).
(8) Industrial undertakings for cellarage and storage; wood and coal depots
(subsection 5).
(9) Permanently established theatres (subsection 6).
(10) Professional fire brigades (subsection 7).
(11) Stone-cutting, well sinking and metal forging (subsection 10).
i In that part or Czechoslovak territory which before 1918 belonged to the former Kingt
dorn of Hungary (Slovakia and Sub-Carpathian Russia) the legal situation with respecto ä accident insurance is similar to that at present obtaining in Hungary. Cf. pp. 49, 50.
The reserved minerals are those extracted by regular underground operations.
— 40 —
Under Section 3, subs. 2, of the Act the Minister of Social Welfare is
empowered to make insurance compulsory for the undertakings not specified
in Section 1 of the Act in which there is a risk of accident and especially of fire.
The Act does not apply to undertakings in which machinery not forming
part of the permanent plant is used only temporarily (Section 1, subs. 3, ü),
nor to the erection of one-storey dwellings and other agricultural buildings
in rural districts, provided that the work is executed by only the builder,
the members of his household or other inhabitants of the same district who are
not building workers by trade (Section 1, subs. 2).
Under Section 4 of the Act, amended by the Act of 10 April 1919, the Minister
of Social Welfare, in agreement with the ministers concerned and after consulting the workers' insurance institutions concerned, is empowered to exempt the
persons employed in undertakings belonging to the State or the provinces,
or in private railways:
(a) Provided that the persons employed and their survivors are in the event
of an industrial accident entitled to a pension, compensation or damages at
least equal to those provided under the Act of 1887, Section 7 of the Act of 20
July 1894, and Section 65 of the Act of 30 March 1888;
(b) Further, provided that the competent sickness funds or provident funds
are entitled to repayment under the Act mentioned above in the event of the
workers not being exempt from the liability to insurance ;
(c) Finally, provided that the workers have the same right to share in
decisions on benefit as that guaranteed to the insured by the insurance system
set up under the Act.
Under these provisions the Czechoslovak State railways, certain provincial
railways and post office conveyances are excluded from the general accident
insurance system.
DENMARK
I. —
INDUSTRY, HANDICRAFTS, COMMERCE, DOMESTIC SERVICE,
ETC.
By Section 49 of the Act of 6 July 1916, No. 205, on Accident Insurance»
amended by the Act of 28 June 1920, any person who in Denmark carries on an
undertaking, whether for purposes of gain or not, or who employs workers,
officials, office or shop employees, domestic servants or other persons in his
service, is bound to insure the workers he employs.
II. — SHIPPING
Under Section 54 of the Act, insurance is compulsory for all owners of ships
registered or liable to registration in the Danish Shipping Register in conformity
with the provisions of the Ships Act of 1 April 1892 and the Ships Registration
Act of the same date.
The insurance applies to all employments for which the ship or vessel is
used, including work on or about the ship, loading and unloading of the cargo,
and bringing it to land and on board, conveyance to and from the ship as well
as getting on board and landing; work at sea in saving human life or in salving
goods; expeditions on land on errands for the ship, as well as navigation
in the vessel performed on account of others (Section 56).
III.
— FISHING AND SMALL SHIPPING
Any employer resident in Denmark, whether a private individual or a
company, is bound to insure if his income is derived from the following work :
fishing, shipping, boating, ferrying, lighterage, towage, dredging for stone,
pilotage or sand digging, recovery of wreck from the bottom of the sea, diving
and salvage work; pleasure sailing and all other sailing in a vessel of a gross
— 41 —
tonnage of not less than 4 registered tons are included under this head (Section 66 A).
According to Section 66D the insurance is compulsory in all employments in
connection with the undertakings specified above, including work on or about
a ship, the loading and unloading of the cargo, its transport on board and vice
versa, putting on board and landing of passengers, pleasure sailing and all
other sailing in which the ship or vessel may be used. The Act covers also all
work connected with the repair and maintenance of ships and of material, etc.
used in the undertaking, work in the household of the employer if not completely
separated from the undertaking, and work in the personal service of the
employer or his family.
Insurance is similarly compulsory for persons employed in work subsidiary
to the fishing industry: ice-cutting, worm digging, baiting; cleaning, packing,
salting and smoking the catch; and transporting the catch or bait to or from
a railway station.
IV. — AGRICULTURE, FORESTRY, HORTICULTURE, ETC.
All employers, whether individuals or companies, are bound to insure their
workers if they carry on any of the following undertakings: agriculture,
forestry or horticulture ; trade in horses and cattle, studs, dairies, turf-cutting,
reed-cutting, marl works, threshing works, straw pressing, pisciculture, wind
and watermills (Section 68).
The following are deemed to be horticultural undertakings; horticulture
carried on as a business (including ornamental gardening) work in parks,
ornamental and other gardens belonging to the State or a commune, or in
connection with agriculture and forestry, and work in private gardens of at
least one hectare in size (Section 70).
Insurance is compulsory under Section 69 for workers employed in undertakings subsidiary to the undertakings specified in Section 68, e.g. brick
works, gravel and marl pits, driving, stonebreaking, sawmills, trade in horses
and cattle, and similar undertakings.
Insurance is also compulsory in respect of all work in the specified undertakings quoted above, including driving, even where carried on outside the
scope of the undertaking; work on railways for the business of the undertaking,
work on roads, rivers and waterways, the repairing of buildings, etc. done in
the interests of the undertaking or incumbent on the owner: work in the
employer's household, unless this is entirely separated from the undertaking,
in which case the provisions of Section 50 apply, and in the personal service
of the employer and his family (Section 72).
ECUADOR
The Act of 30 September 1921 on industrial accidents applies to the following industries or occupations :
(1) Factories or workshops and industrial undertakings in which other
than human motive power is used.
(2) Mines, salt works and quarries.
(3) Factories and workshops in the metallurgical, building and shipbuilding
industries.
(4) The construction, repair and maintenance of buildings, including
masonry and all related work: carpentry and joinery, locksmiths' work,
stonecutting, painting, etc.
(5) Factories where explosive, inflammable, noxious or poisonous materials
are produced or used by way of trade.
(6) The construction, repair and maintenance of railways, harbours, roads.
canals, dams, aqueducts, sewers, and other similar works.
— 42 —
(7) Work in agriculture and forestry in which a machine driven by other
than human power is used. In work of this kind the employer is liable only
in respect of the risks connected with the machinery.
(8) Cartage and transport by land or sea and on inland waterways.
(9) The cleaning of streets, cesspools, and sewers.
(10) Warehouses and wholesale depots of coal, wood fuel, and building
timber.
(11) Theatres as regards the wage-earning staff.
(12) Fire brigades.
(13) Establishments for the generation of gas or electricity and the installation and maintenance of telephone systems, piping and underground concrete
work in sewers.
(14) All persons employed in loading and unloading.
(15) All similar industries or occupations not mentioned under the foregoing heads.
ESTHONIA
Under the Act of 23 June 1912 amended by the Acts of 18 June 1917,
3 February 1920 and 4 April 1923, insurance is compulsory for the following
undertakings if not less than five persons are employed 1 . The list is the same
as that given in Article 1 of the Draft Convention limiting the hours of work
in industrial undertakings to eight in the day and 48 in the week adopted by
the International Labour Conference at its first Session at Washington :
(1) Mines, quarries and other works for the extraction of minerals from the
earth.
(2) Industries in which articles are manufactured, altered, cleaned, repaired,
ornamented, finished, adapted for sale, broken up or demolished, or in which
materials are transformed; including shipbuilding and the generation, transformation and transmission of electricity or motive power of any kind.
(3) Construction, reconstruction, maintenance, repair, alteration or demolition of any building, railway, tramway, harbour, dock, pier, canal, inland
waterway, road, tunnel, bridge, viaduct, sewer, drain, well, telegraphic and
telephonic installation, electrical undertaking, gas work, waterwork or other
work of construction, as well as the preparation for or laying the foundations
of any such work or structure.
(4) Transport of passengers or goods by road, rail or inland waterway 2
including the handling of goods at docks, quays, wharves or warehouses 3 .
By an Act of 8 March 1923, aerial transport undertakings were included
in the scope of the law.
The provisions of the law do not apply to (a) State undertakings 4 ; (b) Railway companies whose lines are used for public transport (Section 3) 5 .
Compensation for accidents occurring in agricultural work is governed by the
Act of 2 June 1903.
Under Section 11, the Workers' Insurance Council may add to or cut down
the list of undertakings covered. On the recommendation of the competent
i Persons employing less than five workers are individually liable for the payment of
compensation, but they may discharge their obligation by insuring with an approved
insurance company (Act of 2 June 1903).
s The Esthonian Act has left out the word "sea".
s The Esthonian Act leaves out the words "but excluding transport by hand" contained
in the Draft Convention.
* Cf. the provisions of the Industrial and Labour Code. Special Acts have been passed
covering the State undertakings in the shale industry (Act of 19 July 1922) and the peat
industry
(Act of 27 July 1922), and the State printing works (Act of 7 March 1923).
6
The compensation for industrial accidents on railways used for public transport is
Soverned by the Act of 28 June 1912.
— 43 —
insurance authorities, the Council has power to grant exceptional and temporary exemption for isolated undertakings which for local reasons find it difficult
to join an insurance organisation. The exemption holds good until the difficulties have been overcome. The Council may further extend the provisions
of the Act to undertakings permanently employing a smaller number of workers
than that specified in Section 1. Finally, it may issue general regulations for
the application of the Act to persons working in co-operation (artel).
FINLAND
Under Section I of the Order of 18 August 1917 on the insurance of workers
against accidents, insurance is compulsory for the following industrial undertakings in which other persons than the employer, his wife and his children
under age are employed:
(1) Factories, handicrafts and other industrial undertakings in towns and
market towns; similar undertakings in rural districts provided that use is
made of steam boilers or machinery driven by other than human motive
power, or of technical appliances, mines, quarries, workyards for stonecutting and polishing, and timber yards.
(2) Agriculture and subsidiary agricultural industries if use is made for
more than 14 days in the year of machinery driven by natural power. Nevertheless, plant for using the wind to raise water and similar works are not deemed
machinery in the above sense.
(3) Fishery carried on as a business if more than three paid workers are
employed simultaneously.
(4) Undertakings for the felling and floating of timber.
(5) The construction and maintenance of means of communication, canals,
harbours, buoys, lighthouses, and all construction of roads and bridges on
which more than five persons are employed at the same time.
(6) The construction and repair of houses in towns and market towns, and
similar work in the country provided that more than five workers are employed.
(7) The construction and maintenance of systems for the transmission of
electricity, gas, or water, telephone lines, and sewerage systems.
(8) The loading, unloading and warehousing of goods; salvage and diving
undertakings.
(9) Operation of railways, tramways, elevated railways and canals; the
transport of passengers by lifts; the operation of electrical generating
stations ; transport by car or motor car.
(10) Undertakings for the transport of passengers and goods by vessels
which need not be under the command of a certificated captain.
By the Order of 18 August 1917 on the insurance of seamen against accidents,
other members of the crews of Finnish ships are subject to the Order of
18 August 1917 on the insurance of workers against accidents.
(11) Laundries and ironing establishments 1 , window cleaning, baths,
slaughterhouses, chimney sweeping and all similar undertakings.
Section 1, subs. 3, provides that if the risk of accident in operating certain
industrial establishments is slight, they may until further notice be exempt
from the provisions of the Act. Under this provision, the Government by an
Order of 28 December 1917 temporarily excluded the following undertakings:
watch factories, optical instrument factories and similar scientific instrument
undertakings, undertakings for the manufacture of boots and shoes, saddlery,
furriery, decorating and paper hanging, the manufacture of clothing, weaving,
bakeries, laundries and ironing establishments, hairdressers' establishments.
The Government is empowered (Section 1, subs. 4) to grant provisional
exemption for the handicrafts, agricultural work and fishery defined above,
i Both provisionally excluded under the Order of 28 December 1917.
— 44 —
the construction of roads and bridges and the construction and repair of
private houses and agricultural buildings in rural communes, if the journey
from the commune to the nearest town or market town or the residence of
the doctor requires more than three hours by rail, or is more than 30 kilometres
by road or river, or an equivalent distance if more than one method of
locomotion is used: ten kilometres by road being taken as equal to one hour
by rail. Certain rural communes have accordingly been exempted from the
provisions of the Act by the Orders of 27 January and 27 September 1918 and
4 August 1921.
State undertakings are also covered by the Finnish Act.
FRANCE
I. —
INDUSTRY
Section 1 of the Act of 9 April 1898 applies to the following undertakings:
(1) The building industry, factories, mills, workyards, undertakings for
transport by land or water, loading and unloading, public warehouses, mines..
surface mines and quarries.
(2) Any undertaking or part of an undertaking in which explosives are
manufactured or used, or in which machinery driven by other than human
or animal power is used.
The term "mills and factories" is deemed to cover all industrial workshops
irrespective of size or the danger of the work. The term "workyard" is deemed
to cover earthworks and industrial workyards, but not commercial workyards.
The term "transport by water" is taken to mean inland navigation.
II. —
SHIPPING
The term "transport by water" used above does not apply to shipping,
which is subject to the Act of 23 April 1898 setting up a National Seamen's
Provident Fund to meet the risks and accidents of the trade. This Act was
originally limited in application to registered seamen, but was extended by
the Act of 29 December 1905 to unregistered workers employed on all French
seagoing vessels other than naval vessels and those used exclusively in the
public service.
III.
— COMMERCE
Section 1 of the Act of 12 April 1906 extended the provisions of legislation
on the liability for industrial accidents to all commercial undertakings.
IV. —
AGRICULTURE
The Act of 30 June 1899 related only to accidents caused by the use of
agricultural machinery driven by mechanical power, but by the Act of 15
December 1922, industrial accident legislation was applied to all agricultural
undertakings.
According to Section 1 of this Act, industrial accident legislation applies,
subject to special provisions, to agricultural undertakings and undertakings
for stock breeding, breaking-in and training, stud farms and undertakings
of all kinds, depots and places of sale connected with agricultural associations
or undertakings where the agricultural undertaking constitutes the principal
establishment.
V. — DOMESTIC WORK
By the Act of 2 August 1923, industrial accident legislation was extended
to domestic servants and other persons employed for a wage or salary in the
household of the employer, and of caretakers, whether such workers are
engaged in personal services to the employer or not.
— 45 —
VI. — PUBLIC SERVICES
If a mine or industrial undertaking covered by Section 1 of the Act of 1898,
or a commercial undertaking as defined in Section 1 of the Act of 1906 belongs
to the State, a department, a commune or a public institution, it still remains
subject to the law on industrial accidents, even though the undertaking is
not run for profit.
VII.
— VOLUNTARY SUBMISSION
A. According to the Act of 18 July 1907 on voluntary submission to
legislation on industrial accidents, any employer not subject to the law may
place himself under its regulations for all accidents that may occur to his
workers, employees or domestic servants arising out of or in the course of the
work. By Section 2 of the Act such legislation becomes legally applicable to
all of the workers, employees and domestic servants of the employer who
signify their consent by signing and dating the written declaration which
the employer must present to the mayor, and which the latter has endorsed
noting the declaration and its date.
By Section 3, the employer may discontinue his liability for the future by a
special declaration to the mayor's office. The discontinuance does not affect
the workers, employees or domestic servants who have previously accepted
their inclusion under the law.
B. The Act of 15 December 1922 provides similarly for the voluntary
submission of employers not otherwise liable, who insure the members of their
family and their casual workers, and who are entitled to place themselves
under the regulations of industrial accident legislation.
Moreover, employers liable under the law, those who work alone, and those
who have submitted voluntarily, may also insure themselves against accident
under the same conditions. In this event the law on industrial accidents
applies immediately, under the conditions defined by the Act of 18 July 1907,
to the members of their family working with them and their casual workers
(Section 4).
GERMANY
I. — INDUSTRY
The Insurance Code of 19 July 1911 gives a list of 11 groups of under"
takings in which insurance is compulsory (Section 537):
(1) Mines, salt-works, ore-dressing works, quarries, surface mines.
(2) Factories, shipyards, metal works, pharmacies and industrial breweries
and tanneries.
(3) Building workyards, industrial undertakings involving such work as
masonry, decorating, stone cutting, locksmiths' work, blacksmiths' work and
plumbing; stone breaking and building work done by other than regular
building undertakings.
(4) Chimney sweeping, window cleaning, slaughtering and the operation of
bathing establishments.
(5) Railways and the administration of the postal and telegraph service,
military and naval administrative undertakings, as also former military and
naval administrative undertakings which, under the Treaty of Peace, have been
transferred to civil departments (Order of 25 May 1920) x .
(6) Inland navigation, rafting, ferrying, towage, fresh-water fishing, pisciculture, the operation of ponds and the production of ice if done as a business
or administered by the Federal Government, a state, a commune, an association
of communes, or other public body; dredging, and the running of vessels on
inland waters.
i Reichsgesetzblatt, p. 1093.
— 46 —
(7) Cartage, forwarding, the keeping of draught-animals; the hiring of
riding animals and keeping of stables if carried on as a business ; the running
of vehicles, other than boats, provided that they are driven by mechanical
or animal power, and the keeping of animals for riding.
(8) Warehouses, depots and cellarage establishments conducted as a business.
(9) Packing, loading, storing, sorting, weighing, measuring, inspecting and
stowing carried on as a business.
(10) Goods and passenger transport undertakings and timber felling if the
undertakings are connected with a commercial undertaking which extends
beyond the scope of a small scale establishment.
(11) Under the same conditions as in 10, undertakings for the treatment
and handling of goods.
The term "factories" (Section 537, subs. 2) is deemed for the purposes of
the law to cover undertakings which: (a) work on or transform specified
articles and which regularly employ not less than 10 workers; (è) manufacture
or work up as a business explosives or explosive materials or generate or distribute electrical power; (c) make other than temporary use of steam boilers or
machinery driven by mechanical and animal power; (d) are defined as factories
by the Federal Social Insurance Office (Section 538).
Insurance is compulsory for undertakings which are either important parts
of the undertakings defined in Sections 537 and 538 or subsidiary to such
undertakings (Section 539). This provision does not apply:
(a) To agricultural undertakings which are subsidiary to the main undertaking. The rules of the insurance institution may make insurance compulsory
for such subsidiary undertakings if the majority of persons employed in them
belong to the staff of the main undertaking;
(¿) To shipping and other undertakings covered by Sections 1046 and 1049
if they are important parts of the undertakings defined in Sections 537 and
538, provided that the work is not limited to local traffic or that they are
subsidiary undertakings.
Exemption from the liability to insurance may be granted by the Central
Insurance Office for undertakings in which there is no particular risk of accident
(Section 543).
The rules of the insurance institution may extend compulsory insurance
to all heads of undertakings and artisans working at home (Section 548). They
may also define the conditions under which persons employed in the undertaking but not insured, persons not employed in the undertaking but who visit
its premises, and members and employees of the association may be insured.
Heads of undertakings and pilots on inland waters who conduct their
business on their own account may insure voluntarily.
II. —
AGRICULTURE
Under the German Law accident insurance is compulsory also for agricultural
undertakings. The Central Social Insurance Office is empowered to specify
what branches of industry are to be considered as agricultural undertakings
(Section 915).
Certain kinds of work enumerated in Section 916 are deemed to be parts
of an agricultural undertaking:
(1) Current repairs to buildings used in agricultural operations.
(2) The cultivation of the land; other building work for the undertaking,
especially the construction and maintenance of roads, dams, canals, and watercourses for this purpose, provided that the work is carried out on his own
account by the head of an agricultural undertaking on his own land, or on the
land of others for his own agricultural undertaking without transferring the
work.
— 47 —
If the head of an agricultural undertaking carries out work in his capacity
as such which he is bound under public law to carry out for the commune, for
the construction and maintenance of buildings, roads, dams, canals and watercourses and which form part of the obligation resting upon him as an
agriculturist, such work is to be considered as part of his agricultural undertaking (Section 916).
Section 917 enumerates certain other works which are to be considered as
agricultural undertakings: horticulture, the care of parks and gardens, work
in cemeteries, provided that these occupations are not liable to industrial
accident insurance.
Insurance is further compulsory in respect of undertakings which are carried
on by the head of an agricultural undertaking side by side with the latter
and economically dependent on it (subsidiary agricultural undertakings).
This group includes, in particular, undertakings intended solely or mainly for;
(1) Working up and transforming of the products of the main agricultural
undertaking.
(2) Supplying the needs of the main undertaking.
(3) Procuring and working up the products of the soil from his land (Section 918).
Finally, inland navigation and rafting and occupations connected with such
navigation or rafting are not included in the insurance of the main agricultural
undertakings unless their scope is limited to local traffic (Section 920).
Section 917, subs. 2, and Section 919 expressly limit the scope of accident
insurance in agricultural undertakings by excluding small home gardens, or
ornamental gardens which are worked irregularly and very largely with the
assistance of special labour, and the produce of which is intended mainly for
the household of the producer; further (Section 919), mines, salt-works,
ore-dressing, shipyards, metal works, building yards, and undertakings which
manufacture or work up explosives or explosive materials as a business and
undertakings which the Central Insurance Office treats as factories because of
their size, of their special mechanical equipment or the number of their industrial workers, even if they are run by the head of an agricultural undertaking
side by side with and economically dependent on this undertaking.
The Code provides further for the compulsory insurance of heads of undertakings under the rules of the insurance association (Section 925), or for their
voluntary insurance (Section 927). The industrial accident insurance provisions apply correspondingly in so far as the insurance of persons employed
in the undertaking but not insured, and persons not employed in the undertaking, but who visit its premises, is concerned (Section 929).
III.
— SHIPPING
Maritime navigation is deemed to cover:
(1) Voyages upon the sea outside the limits fixed by Section 1 of the Administrative Provisions of 10 November 1899 in connection with Section 25
of the Flag Act of 22 June 1899.
(2) Voyages upon bays, enclosed bays (Haffen) and seashallows (Watten)
(Section 1047).
By Section 1046, insurance is compulsory for German sea-going vessels,
floating docks and similar undertakings, inland undertakings for pilotage,
the saving of human life and salvage of goods in case of shipwreck, the watching, lighting and maintenance of waters for the service of maritime navigation.
Maritime navigation is not deemed to include voyages upon other waters
connected with the sea, even if made by seagoing vessels (Section 1048).
If it is doubtful whether an undertaking is liable to shipping accident insurance,
the Central Insurance Office must decide after hearing the management of
the insurance institution (Section 1050).
— 48 —
The rules of the insurance association may extend compulsory insurance to
shipowners who belong to the crew of the vessel (Section 1059) ; they may also
fix conditions for the insurance of persons employed in the undertaking, but
not insured, and of persons who are not connected with the undertaking
(Section 1064).
Voluntary insurance is open to the heads of insured undertakings who are
not already insured under the provisions of the Code and to pilots who carry
on their business on their own account (Section 1061).
GREAT BRITAIN
Since the Act of 1906 compensation for industrial accidents is payable "in
any employment". The British Act therefore brings all undertakings within
its scope. Further, the Act applies to every person who has entered into or
works under a contract of service or apprenticeship with an employer whether
by way of manual labour, clerical work or otherwise. It does not apply to a
person engaged to render services to another where there is no relationship
of worker to employer.
The Act of 1906 applies only within the territorial limits of Great Britain
except in the case of seamen and fishermen.
According to Section 7 of the 1906 Act, it applies with certain modifications
to seamen and fishermen. Further, according to Section 9, it covers all workers
employed by or under the Crown, and also, according to Section 13, those
employed by or under any local or other public authority. In brief, the Act
applies to industry, agriculture, shipping, commerce, domestic service, and
State and municipal undertakings.
Under the Act of 1923 the following workers who are not covered by the
definition of "workman" in the Act of 1906, were included:
(1) Share fishermen, i.e. fishermen remunerated by shares in the profits
or gross earnings of the working of the vessel unless such share constitutes
the whole or main part of their remuneration. Fishermen remunerated wholly
or mainly by share may be brought within the Act by Order of the Secretary
of State.
(2) Persons employed on board ship in whatever capacity. The Act of
1906 applied only to members of the crew and did not cover persons such as
postal workers, bandsmen, hairdressers, and men in charge of livestock.
(3) Persons engaged in plying for hire with any vehicle or vessel, the use
of which is obtained from the owner under a hiring contract in consideration
of the payment of a fixed sum or a share in the earnings or otherwise.
(4) Persons whose employment is of a casual nature and who are employed
otherwise than for the purpose of the employer's trade or business, if they are
employed for the purposes of any game or recreation and engaged or paid
through a club. All casual labour employed for the purpose of the employer's
trade or business is included under the Act of 1906.
• The 1923 Act also provides (Section 27) that the Secretary of State may
by Order extend the provisions of the principal Act to persons employed
on aircraft in respect of accidents occurring outside Great Britain (accidents
within the territorial limits .being of course already covered by the 1906 Act).
GREECE
The Act of 31 December 1914, No. 551, respecting liability for payment of
compensation to workers or employees who are victims of industrial accidents,
as amended by Section 3 of the Act of 11 March 1920, No. 2114, the Act of
5 July 1920, No. 2193 and the Legislative Decree of 20 January 1923, covers
the following undertakings and occupations: building and other technical
trades; all kinds of industrial establishments, workshops and other work-
— 49 —
places in which machinery is used; land or water transport undertakings;
loading, unloading and warehousing of all kinds; mining and quarrying not
covered by Section 1 of the Act of 21 February 1901, No. 2841 *; industries
and undertakings in which explosive or poisonous substances are manufactured or used, or in which use is made of machinery driven by other than
human or animal power (Section 2).
The State and in general all bodies corporate which directly employ workers
or employees in the occupations or undertakings specified above, are also
liable for compensation.
It should be observed that compensation for accidents in shipping is
governed by an Act of 6-12 July 1907 on the Pension Fund for Disabled
Seamen.
HUNGARY
The Act of 1907 on the insurance of industrial and commercial employees
against sickness and accident gives lists not only of the undertakings and
occupations subject to sickness insurance, but also of those subject to accident insurance.
The first list includes, besides all the industrial and commercial undertakings
covered by the Industry Act, those which are not covered by that Act, as,
for example, offices, agencies, theatres, pharmacies, sanatoria.
The second list contains only undertakings where there is an appreciable risk.
The Regulations of 1919 have extended compulsory accident insurance to
all undertakings and occupations which are subject to sickness insurance.
In practice Hungarian accident insurance legislation applies to all undertakings and all workmen employed therein except barristers and solicitors.
The Act of 1907 provides for compulsory insurance against accidents in
the case of the following undertakings and occupations:
(1) Mines, foundries, salt Works and other works for working up mining
products; quarries, sand pits, gravel pits and clay pits, and undertakings for
the breaking and working up of stone and earth.
(2) The construction of roads, bridges, tunnels, water-works, dams,
canals, harbours, fortifications, systems for the transmission of water, gas,
electric light and power.
(3) Establishments in which inflammable, noxious or poisonous materials
or explosives are manufactured or prepared.
(4) Chemical, physical and pharmaceutical laboratories.
(5) Slaughter houses, meat trade, sausage works, ice factories.
(6) Railways, irrespective of the motive power used, factories and workshops, and construction and maintenance works connected therewith; post,
telegraph and telephone undertakings and the construction and maintenance
of these.
(7) Shipping, including ships' restaurants; loading and shipbuilding.
(8) Dredging and harbour works, ferries and rafting.
(9) Carrying and forwarding of goods ; warehouses, and commercial stores.
(10) Industries subsidiary to agriculture, forestry, stock-breeding, fishery,
horticulture, viticulture, sericulture and bee-keeping, even if the industry as
a rule uses only- its own raw materials.
(11) Public institutions.
(12) State, municipal, communal and institutional undertakings, except
military works and undertakings employing soldiers.
(13) Workshops attached to public educational institutions.
» This Act introduces a special system of compensation for the victims of accidents in
mines and metal works and for their survivors.
4
— 50 —
(14) Unions, societies, industrial corporations and the insurance funds set
up in accordance with the 1907 Act.
(15). Domestic service.
(16) The work of certificated engineers in charge of agricultural work.
(17) All building undertakings and workyards, including construction.
undertaken not commercially but by or on behalf of a public authority,
unless such construction does not require a building permit.
(18) Professional fire brigades.
(19) Motor-car driving.
(20) Undertakings in which persons in reformatories or prisons are employed.
The Act of 3 July 1909 on relief funds for agricultural workers and farm
servants (amended by the Act of 26 June 1902 and the Act of 27 February
1912 on the insurance of agricultural workers and farm servants against
industrial accidents, and the Act of 28 June 1913 on the insurance of agricultural workers against sickness and accident) set up a relief fund which, since
the Act of 1913, has been called the "Relief Fund for Agricultural Workers".
Accident insurance is compulsory for agricultural workers living in the household of the employer, those employed on agricultural machinery, including
the driver, but excluding the certificated engineer who is covered by the Act
of 1907 unless he belongs to the staff of the undertaking and lives in the household of the employer.
The Act of 1900 as amended applies also to water-works companies, and the
water-works and forestry undertakings under the Ministry of Agriculture.
INDIA
The Act of 1923 providing for the payment by certain classes of employers
to their workmen of compensation for injury by accident applies to the following undertakings and occupations.
(1) Non-permanent administrative work on railways within the meaning
of the Indian Railways Act 1890 (Section 2, subs. 1 (n), i).
(2) Tramways within the meaning of the Indian Tramways Act 1886r
Section 3.
(3) Factories within the meaning of the Indian Factories Act 1911, Section 2,
i.e. factories employing not less than 20 persons and using mechanical power.
(4) Mines within the meaning of the Indian Mines Act 1923. The definition
of the term "mines" is very wide, but the 1923 Mines Act contains a provision
under which certain areas or certain classes of mines may be excluded from the
provisions of the Act, in which case the provisions of the Workmen's Compensation Act also cease to apply.
(5) Shipping. The Act applies to captains and seamen of registered ships,
i.e. sea-going ships registered under the Bombay Coasting Vessels Act 1838,
or the Indian Registration of Ships Act 1841, or the Indian Registration of
Ships Act (1841) Amendment Act 1850, or any home trade ship so registered
of a registered tonnage of not less than 300 tons, or any inland steam vessel asdefined in the Inland Steam Vessels Act 1917 of a registered tonnage of not
less than 100 tons.
(6) The loading and unloading of vessels. The Act applies to the loading
and unloading of vessels at any pier, wharf, quay, dock, etc., provided that
steam, water, or other mechanical or electrical power is used.
(7) The construction, repair or demolition of
(a) a building which is designed to be, is, or has been more than one storey
in height above ground level, or (b) a building which is used, has been used or is
designed to be used for industrial or commercial purposes and is not less than
20 feet in height measured from the ground level to the apex of the roof, or
(c) a bridge which is, has been or is designed to be more than 50 feet in length.
— 51 —
(8) Setting up, repairing, maintaining or taking down telegraph or telephone
lines or posts or overhead electric cables.
(9) The construction, inspection or upkeep of underground sewers.
(10) The service of fire brigades (Schedule II).
IRISH FREE STATE
The scope of workmen's compensation legislation is that defined in the British
Act of 21 December 1906 x without the amendments introduced in Great
Britain by the Act of 16 November 1923.
ITALY
I. — INDUSTRY
The codified text of 31 January 1904 of the Acts relating to industrial
accidents, amended by the Legislative Decree of 17 November 1918 and the
Act of 20 March 1921, classifies the industries covered under five heads, those
under heads 2 and 3 being liable only if a minimum number of workers is
employed.
(1) The Act applies to workers employed in: mines, quarries and peat
digging, and the loading, transport and unloading of the materials extracted ;
the construction and demolition of buildings, and the loading, transport and
unloading of building materials or materials resulting from demolition; the
generation of gas or electricity; telephone undertakings; the installation,
repair and removal of electric transmission systems and lightning conductors ;
undertakings in which explosives are manufactured or used ; arsenals or shipyards.
(2) The Act applies further to workers in the following kinds of
construction and undertakings if more than five workers are employed:
construction or working of railways or tramways with mechanical traction;
transport by land, river, canal or lake; shipping, including fishery, carried on
more than 10 kilometres from the coast, and sponge and coral fishing; loading
and unloading ; irrigation ; works required for repairing the effects of landslips
and floods in the mountains; the felling or thinning of trees in forests, and the
transport of the logs to the usual storing places on the banks of rivers and
streams or to cart roads, and dumping the logs from the storage places into
the rivers and streams; construction and repair of harbours, canals and dams;
construction, repair and breaking up of ships; construction and repair of
bridges, tunnels and ordinary national, provincial and communal roads.
(3) The Act further applies to industrial undertakings in which machinery
is used, provided that the machinery is not driven directly by the worker
using it, and further that more than five workers are employed in the undertaking.
According to the administrative regulations, the term "machinery" is taken
to include steam boilers and containers liable to inspection under the Public
Safety Act of 23 December 1888 (No. 5888) and the Regulations of 27 June
1897 No. 290 (Section 5).
The liability to insurance in industrial undertakings in which machinery
is used applies also to workers employed in different premises separate from
the premises in which the machinery is working, even if they are engaged in
work which is subsidiary to that carried on in the principal undertaking
(Section 7).
Industrial workshops within the meaning of Section 1, subs. 3 of the Act
include (a) those in which machinery is used only temporarily, (¿>) those in
which machinery is not directly employed in operations connected with the
industry carried on in the workshop, (c) workshops attached to hostels,
hospitals and other benevolent institutions in connection with the working of
» Cf. page 48.
— 52 —
these institutions or the work performed by the inmates, (d) workshops attached
to reformatories and prisons (Section 8).
(4) The Act applies to workers employed in minding machinery driven by
mechanical power, or the engines, if the machinery is used for industrial or
agricultural purposes.
(5) The Act applies to workers employed in minding cannon and other
apparatus for shooting to prevent hail storms.
It applies also to victuallers employed by undertakings for the supply of
victuals to the Navy.
II. —
SHIPPING
Under section 21 of the Act insurance is compulsory under certain conditions for members of the crews of ships flying the Italian flag.
III.
— AGRICULTURE
By the Legislative Decree of 23 August 1917, No. 1450, on compulsory
insurance against accidents in agricultural work, as amended by the Act of
20 March 1921 and by the Legislative Decree of 11 February 1923, insurance
is compulsory for undertakings in agriculture or forestry. Such undertakings
are taken to mean the cultivation of land and woodland and the operations
connected therewith, supplementary or accessory thereto, such as raising of
plants; irrigation; the breeding and management of stock; the preparation,
preservation, manufacture and transport of the products of agriculture,
stock-keeping and forestry (Section 2).
IV. —
FISHERY
According to section 10 of the Act of 24 March 1921, No. 312, making provisions for the benefit of the fishing industry and fishermen, insurance in accordance with the Act of 31 January 1904 and the Decree of 17 November
1918 is compulsory for (a) undertakings and persons carrying on fishing with
or without vessels of any kind; (6) undertakings engaged in sea fishing or along
the coast, irrespective of the provisions of Section 1, subs. 2, of the Act of
1904; (c) undertakings engaged in fresh-water fishing.
By Section 11 of the Act of 24 March 1921, employers in the fishing industry
are deemed to include, in addition to individual or collective undertakings
including co-operative societies directly engaged in fishery, owners or charterers who furnish fishery workers with their vessels and fishing tackle, with
or without taking part personally in the fishing, and who receive any remuneration whatever in money or in kind as a share of the catch.
V. — PUBLIC SERVICES
The Act of 31 January 1904, in its amended form, applies to workers employed in undertakings or works managed directly by the State, a province
or a commune, or under a concession or lease from such authorities (Section
18). They must be insured in the National Workers Accident Insurance Institution set up under the Act of 8 July 1883. The position of railway workers
is governed by the Act of 8 July 1908, No. 418, on State railway employees'
pensions, the Regulations of 21 May 1908 on compensation for temporary
workers injured in an accident, the Regulations of 13 August 1917 on State
railway employees, amended by the Legislative Decrees of 11 June 1919,
No. 913, and 8 February 1923, No. 319.
JAPAN
A. The compensation for accidents based on the Factory Act of 28 March
1911 (Section 1, subs. 1) applies to factories where more than 15 persons are
regularly employed (10 workers since the Act of 29 March 1923).
— 53 —
The Act applies also to factories where the work is dangerous or injurious
to health (Section 1, subs. 1). A list of the factories to be considered as involving dangerous or unhealthy work was issued in an Order of 2 August
1916 (Section 3). It includes undertakings for the manufacture of poisonous
substances or poisonous chemicals, the stuffing and preparation of animals,
the smelting or refining of metal, the manufacture of measuring appliances
in which mercury is used, the manufacture of matches, gunpowder, varnishes,
ether, etc.
Under Section 25 of the 1911 Act, the Act itself and Orders in pursuance
thereof apply to State and public factories.
B. The Act of 22 April 1922 on sickness insurance, which is not yet in
force, provides for the payment of compensation in the event of accidents
to the insured (Sections 43 et seq.). This Act which supplements the Factory
Act of 1911, states that all persons employed in a factory to which the Factory
Act applies, or in a works or factory to which the Mining Act of 1916 applies,
must be insured under the provisions of the Sickness Insurance Act (Section 13).
An employer in an undertaking other than the factories and works specified
in Sections 1 and 13 may, after having obtained the sanction of the competent
Minister and the consent of more than half the persons concerned, cause all
the persons employed in the undertaking and the works attached to it to be
insured. This applies to the following undertakings:
(1) Undertakings for the mining or collecting of minerals;
(2) Undertakings for the manufacturing, working up, sorting, packing,
repairing or breaking-up of articles.
(3) Undertakings for the generation, transformation or transmission of
electricity or motive power.
(4) Undertakings for building construction or the erection, preservation,
repair or demolition of the structures designated by the competent Minister.
(5) Undertakings to which the Local Railway Act or the Tramway Act
applies.
(6) Undertakings for the transportation of goods and passengers by land,
other than those mentioned in the preceding item, as designated by the competent Minister.
(7) Undertakings for the loading and unloading of goods.
(8) Undertakings other than those mentioned in the preceding item, as
designated by Imperial Ordinance.
C. The Mining Act of 1916 and the Order of 3 August 1916 contain provisions relating to compensation for accidents in private mines. Compensation for accidents in State mines is governed by special regulations.
The Factory Act does not apply to the industrial undertakings enumerated
in Section 1 of the Order of 2 August 1916, except as regards undertakings
which use the machines driven by mechanical power specified in Order No. 19
of the Ministry of Agriculture and Trade dated 3 August 1916lw.
Undertakings for the manufacture of certain foodstuffs (cakes, barley syrup,
bread, gelatine, rice wine, etc.), the manufacture of certain articles of furniture
and clothing out of vegetable raw materials (straw, wood, bamboo, formosa
grass, etc.); the manufacture of fans, umbrellas, etc., toys, artificial flowers,
cardboard and paper articles, clothes, socks and other articles out of woven
materials; passementerie goods made by hand, needlework, lace, drawn
thread work, etc.
1
Section 1 of the Regulations in pursuance of the Factory Act, dated 3 August 1916,
states that the machines driven by mechanical power within the meaning of Section 1 of
the Order in pursuance of the Factory Act are those driven by steam engines, steam turbines, gas engines, petrol motors, turbine water mills, Pelton water mills or electric motor».
— 54 —
LATVIA
The Russian Act of 23 June 1912 in force in Latvia applied to industrial
undertakings, mines, metal works, railways, inland navigation (rivers, canals,
inland seas, and lakes) and tramways, provided that not less than 20 workers
were permanently employed and use was made of steam boilers or machinery
driven by natural (water, gas. electricity, etc.) or animal power. If the undertakings permanently employed not less-than 30 workers they were subject
to the Act even though no use was made of steam boilers or machinery. If the
undertaking was both commercial and industrial and had several departments,
it was subject to the Act only in respect of the departments which would
come under the head of undertakings as defined above (Section 1, note 1).
Several measures have been introduced in Latvia amending these regulations. The Decree of the Ministry of Labour of 22 July 1920, No. 46676 (Valdibas Vestnesis, No. 165) amended Section 1 of the Act of 1912, extending
its provisions to all industrial undertakings, to tramways and inland navigation employing more than four paid workers (including apprentices and
clerks employed by the undertakings). Only small industry (handicrafts) 1
is not subject to the Latvian Act 2 .
Section 1 so amended was supplemented by two decrees of the Ministry
of Labour, one relating to fishery, the other to saw mills.
The Decree of 14 June 1923, No. 16330, laid down that in the fishing industry
all workers employed on steamships or sailing vessels in handling the catch
(salting etc.) must be insured under the Act.
By the Decree of 22 July 1923, No. 16768, workers in sawmills in the provinces must also be insured if more than four workers are employed. Such
sawmills therefore cannot be classified with agriculture and forestry and thus
be exempt from the provisions of the 1912 Act.
The Act does not apply to State undertakings or railway companies whose
lines are used for public transport 3 (Section 3).
The Decree of the Ministry of Labour of 26 May 1923, No. 16914 states
that workers employed in transport by motor-car are not liable to insurance
under the Act.
The Workers' Insurance Council (at present the Ministry of Labour) is
empowered by Section 11 to add to or cut down the list of undertakings
covered. On the recommendation of the competent insurance authorities the
Council has power to grant exceptional and temporary exemption for isolated
undertakings, which for local reasons find it difficult to join any insurance
organisation. The exemption holds good until the difficulties have been
overcome.
The Council may further extend the provisions of the Act to undertakings
permanently employing a smaller number of workers than that specified in
section 1. Finally, it may issue general regulations for the application of the
Act to persons working in co-operation (artel).
1
Section 2 oí the Industrial Code (Collection of Lows, Vol. XI) states that factories and
workshops are to be distinguished from small industry (handicrafts) by the possession of
plant
and machinery, small industry employing only "machinery and tools worked by hand".
2
Compensation for accidents in small industry is governed by the Compensation Act
of 2 June 1903.
s The compensation for industrial accidents on railways used for public transport is
governed by the Act of 28 June 1912, which, however, applies only to railway workers who
have engaged in the occupation of their own free will and are not considered as State workers.
State workers and employees are subject to the Act of 13 January 1922 on pensions for
•soldiers and civil servants (Noteikumi par karaviru un valsls ierednu un kalpolaju pensijam).
Section 5 of this Act lays down that if a civil servant or State employee working under
unhealthy conditions is the victim of an accident, he is entitled to a pension proportioned
to his loss of working capacity irrespective of his length of service, but not less than 30 per
cent, of his salary. By a decision of the Senate this provision also applies to workers on State
railways who are considered as State workers.
— 55 —
LITHUANIA
The Act of 2 June 1903 on compensation for industrial accidents, in force
in Lithuania 1, applies to workers in factories and mills, mining and metal
works. For the definition of these terms reference is made to the Industrial
Code and the Mines Act.
. By Section 1 of the Industrial Code 2, establishments in which industrial
work is carried on are entitled factories and mills. Section 2 of the Code states
that such establishments are distinguished from small industry (handicrafts)'
by the possession of machinery and plant, small industry employing only
"machinery and tools worked by hand".
Section 1 of the Mines Act (Collection of Laws, Vol. VII) states that the
term "mining undertakings" covers undertakings in which natural ores found
on the surface or underground, such as (a) earth and stone, (6) metals, (c) salts
(sodium chloride, alum, vitriol, etc.), (d) inflammable materials, are prospected
for, extracted, smelted, refined and worked up.
According to section 2 of this Act, metal works are defined as undertakings
engaged in (a) the working up of ores, (b) the working up of metals or manufacture of metal goods (in cases in which undertakings engaged in working
up ores and those intended for the manufacture of metal goods belong to the
same owner), (c) salt works.
The Act of 28 June 1912 applies to railways used for public transport.
Small industry (handicrafts) is not covered by the law (Section 1 of the Act
of 2 June 1903 and Section 2 of the Industrial Code), nor does the law apply
to State undertakings, the workshops and other establishments of private
railways3 and shipping, nor to agricultural undertakings *.
LUXEMBURG
The Act of 5 April 1902 on the compulsory insurance of workers against
accidents applies to the following undertakings :
(1) The operation of railways and tramways.
(2) The operation of mines, surface mines, and quarries of all kinds.
(3) The generation of gas and electricity and the production of explosives.
(4) Blast furnaces, steel works, iron works and foundries;.
(5) Factories in which iron, steel, or other metals are used or worked up as
the principal materials.
(6) Potteries.
(7) Breweries, mills and saw mills.
(8) Cartage, inland navigation, ferrying, towage and dredging.
(9) Forwarding, warehousing and packing.
(I) Transport and warehouse undertakings connected with a wholesale
commercial business.
(II) Locksmiths' and blacksmiths' work, stone cutting, well-sinking,
slaughtering, bookbinding, and chimney-sweeping.
(12) The building industry, construction and earth-works.
(13) Construction, earth-works, and other works carried out by the State,
a commune, a public institution or other proprietor without the intervention
of a contractor.
i Except for the Klaipeda (Memel) Territory, to which the (amended) German law
still applies.
s Collection of Laws, Vol. XI.
3
Compensation tor industrial accidents on railways used tor public transport is governed
by the Act of 28 June 1912 .
* The Regulations on direct taxation (Collection of Laws, "Vol. V) gives a list of agricultural undertakings not subject to the law (Section 371, heads 20, 24 and 25).
—.56 —
(14) The operation by the State of the telegraph and telephone system and
of all other industrial undertakings not previously enumerated (Section 1).
In addition, the Act of 23 December 1904 made insurance compulsory for
the following undertakings : tanneries and currying establishments ; malt houses,
the manufacture of champagne, aerated water and preserves ; the manufacture
of candles, soaps, paints and varnishes, paper; vinegar factories; the loading,
unloading and wholesale warehousing of goods; the textile industry; printing
and lithography; cloth making and related trades; tobacco factories; lime
kilns; carpentry, wheelwrights' work, tinsmiths' work, stove setting, and
professional window cleaning; the state postal service so far as the actual
transport and delivery of parcels is concerned ; all factories, works, manufacturing and industrial undertakings and all trades not specially mentioned.
For the purposes of the Act, factories are deemed to be all industrial undertakings which manufacture or work up articles for purposes of gain (Section 2).
Since the Act of 20 December 1919 insurance has also been compulsory
for agriculture and forestry, and undertakings run by the head of an agricultural or forestry undertaking side by side with the latter but economically
dependent on it (subsidiary undertakings). Such subsidiary undertakings
include, in particular, those intended • nainly or solely for (a) Working up the
products of the agricultural or forestr. undertaking of the employer; {b) Supplying the needs of the agricultural or lorestry undertaking; (c) Procuring and
working up products of the soil on the land of the employer.
For the purposes of the Act agricultural undertakings are deemed to include
ornamental and commercial gardening, arboriculture and the production of
seed, and laying out and maintaining domestic or pleasure gardens if carried
on as a trade (Section 2).
Estates which are less than 10 ares in size are not deemed to be agricultural
or forestry undertakings, vineyards being counted at three times their area
for the purpose of calculating these 10 ares (Grand Ducal Decree of 22 August
1922).
A Decree of 23 December 1904 exempted certain trades in which the risk of
accident was slight, chiefly the clothing, toilet articles, and food trades.
By Section 3 of the Act of 23 December 1904, however, employers in the undertakings exempt from the liability to insurance and in commercial undertakings
are entitled to insure their workers against the results of industrial accidents
by making a written declaration to that effect to the President of the Accident
Insurance Association.
NETHERLANDS
I. — INDUSTRY
Compulsory Insurance
Under the Accident Insurance Act of 2 January 1901, as amended, insurance
is compulsory for all industries (Section 11) except agriculture, stockkeeping,
horticulture and forestry, passenger and goods transport on ships which do
not as a rule sail either on rivers or on inland waterways or from one place
within the country to another such place and fishing carried on elsewhere
than in rivers and inland waterways and as a rule out of sight of the Dutch
coast (Section 12). Special measures have been adopted for these kinds of
undertakings.
If a contractor who engages in the transport of passengers or goods not
falling under section 12 (inland navigation and inland fishery) causes goods
which he has transported or is about to transport by ship to be loaded, unloaded, stowed, weighed, measured, transported or stored by persons in his
service, for the purposes of the Act, the shipping undertaking is deemed as
— 57 —
regards these operations to include also the loading, unloading, stowage,
weighing, measuring, transporting or storage of'goods (Section 13, subs. 1).
By Section 13, subs. 2, when a contractor who carries on the business of
passenger or goods transport by ships to which Section 12 applies (maritime
navigation and sea fishery) and who has the office of his undertaking or an
agent within the Netherlands, causes goods which he has transported or is
about to transport by ship, to be loaded, unloaded, stowed, weighed, measured,
transported or stored by persons in his service, he is for purposes of the Act
deemed, as regards these operations, to carry on an industry liable to insurance.
If a public body causes such operations to be performed by persons in its
service as would render them liable to insurance if they performed the same
operations in the service of a private person, the public body is deemed to
carry on an industry liable to insurance in so far as these operations are concerned (Section 3, subs. 2).
The Act of 19 May 1922, amending the Accidents Act, added a new subsection
to Section 3 stating that the provisions of Section 3, subs. 2, do not apply to
the educational institutions of public bodies (without prejudice to the provisions of Section 4).
According to Section 4 of the Act if a person or body corporate causes the
operations specified in public administrative regulations to be performed by
persons in his (its) service who would have been liable to insurance if the
operations formed an independent industry in an undertaking, the person or
corporation is deemed for the purposes of the Act to carry on an industry
liable to insurance in a separate undertaking, in so.far as the operations in
question are concerned, in the cases specified in public administrative regulations. If the persons by whom the operations in question are performed are
already insured in respect of these operations in virtue of another accident
insurance Act the section does not apply.
The Decree of 14 September 1921 1 containing the public administrative
regulations provided for in Section 4, subs. 1, of the Act enumerates the operations performed on account of another which are deemed to be liable to insurance. The Decree refers only to operations involving a certain risk. In
the majority of cases it has been admitted that a minimum half-yearly wage
of 500 florins should be paid for the performance of the operations in question
because the kinds of work paid at a lower rate are too few in number to be
liable to insurance.
Voluntary Insurance
Under the Act the employer may insure himself voluntarily against the
pecuniary consequences of accidents met with by him in connection with the
carrying on of an industry liable to insurance (Section 87, subs. 1).
Voluntary insurance is also open to any person who carries on an industry
liable to insurance on his own account without having any other person in
his service; such a person is deemed to be an employer (Section 87, subs. 2).
II. —
AGRICULTURE
Compulsory Insurance
According to Section 11 of the Act of 20 May 1922 to insure persons employed in agricultural occupations against the pecuniary consequences of
accidents with which they meet in connection with their employment, insurance is compulsory for (a) agriculture, (¿>) stock-keeping, (c) horticulture,
(d) forestry s .
i Staatsblad, 1921, No. 1057.
2
According to Section 12 of the Act if an employer carries on in his undertaking one
or more of the industries specified or referred to in Section U and also one or more of the
industries liable to insurance in virtue of the Accidents Act 1921, the management of the
Insurance Bank (Rijhsverzekeringsbank) decides whether the undertaking as a whole is
to be deemed liable to insurance in pursuance of the Accidents Act 1921 or of the Accident
Insurance Act for Agricultural Workers 1922.
— 58 —
Sections 3 and 4 of the Act contain the same provisions with respect to
public bodies and occasional work as are found in sections 3 and 4 of the
General Accidents Act.
Voluntary
Insurance
Section 99, subs. 1, specifies that an employer who is not a member of a
trade association may insure.himself with the State Insurance Bank against
the pecuniary consequences of accidents met with by him in connection with
the carrying on of an industry liable to insurance.
Voluntary insurance is also open to the wife of an employer who is not a
member of a trade association, his children Jiving at home, and any person
carrying on an industry liable to insurance on his own account without having
any other persons in his employment, together with the wife of such person
and his children living at home.
III. — SHIPPING AND SEA FISHERY
The Act of 8 May 1915 granting compensation to seamen and their survivors
ill the case of accidents to seamen arising out of or in the course of an event
directly due to the war, amended by the Act of 27 June 1919 1 , applies to any
seagoing ship which was or will be taken out into the open sea from the Netherlands after 19 July 1915.
Section 1, subs. 1, defines a seagoing ship as any Dutch ship not in the
service of the State which is destined to leave a Dutch port.
Section 1, subs. 2, defines any ship as Dutch, (a) which goes to sea for an
undertaking with its office in the Netherlands, (b) the crew of which is recruited
in the Netherlands, not less than half being resident in the Netherlands.
NEW ZEALAND
The Workers' Compensation Act of 1922 covers employment in any trade j
business or work carried on temporarily or permanently by or on behalf of
an employer (Section 2, Section 3, subs. 2 (a)), and employment in mining,
quarrying, excavation, cutting of standing timber, building, manufacture or
use of explosives, use of machinery in motion, driving of vehicles, domestic
service, and any occupation in which the worker incurs the risk of falling more
than 12 feet, whether for the purposes of the employer's trade or business
or not (Section 3, subs. 2 (b) and Schedule I). Government service is specifically included (Section 12), as also employment by a corporation or local
authority (Section 3, subs. 4) and employment on board a New Zealand ship
wherever the ship may be at the time of the accident, and, in the case of seamen, whether the accident occurs on board the ship or elsewhere (Section 11).
The only specific exclusion from the scope of the Act is that of the naval
and military services (Section 12).
NORWAY
The Norwegian Act of 13 August 1915 on accident insurance for industrial
workers, as amended by the Act of 19 July 1918, makes insurance compulsory
for all workers and employees employed in the following industries and occupations :
(1) Factories and workshops and other establishments run as factories
or using mechanical motive power or a steam boiler.
(2) Mining and related undertakings, quarries (stone and limestone),
stone cutting, etc.
(3) Ice-cutting.
i Staatsblad, No. 415.
— 59 —
(4) Undertakings in which explosives and other very inflammable materials'
are manufactured or used in the way of trade.
(5) The construction, installation or repair of buildings, ships, railways,
overhead cables, roads, bridges, quays, docks, dams, canals, locks, etc., sewers,
gas works, water works and works connected with the erection, repair or removal of electric cables and lightning conductors.
(6) Forestry, including the felling and transport of building timber, wood
fuel and other materials derived from forestry and related works; timber
floating and all related works; supervision of dams, canals, locks, railways,
overhead cables, and tramways.
(7) Loading and unloading of ships in so far as this work is not performed
by the crew and provided that the tonnage of the ship renders it liable to
registration under the Norwegian Ships Registration Act No. 2 of 4 May,
1901 (Section 1); all work in building yards and in the depots, warehouses
and sheds of harbours; the preparation, etc., of fish and of canned food.
Ships in port which are equipped for performing the kinds of work last
described are deemed to be depots or sheds within the meaning of the Act.
Such work is covered by the Act if it is performed on board ships which must
be registered under the above-mentioned Act of 4 May 1901, by persons not
belonging to the crew and who have not been engaged, either by the captain
or the shipowner, for employment to be remunerated by the shipowner and
performed on board during the course of the voyage.
(8) Diving and related salvage operations.
(9) Chimney sweeping, fire brigade service and related salvage work.
(10) The transport of goods carried on as an independent undertaking
(provided that not less than two horses are employed for the purpose) or in
connection with any of the industries enumerated under heads 1-9 above,
but only if the goods are transported by vehicles, etc., belonging to the undertaking or hired by it.
(11) Sea transport on lighters (vessels which have no independent means
of propulsion) of a gross tonnage of 50 tons or more.
The insurance is compulsory irrespective of the period of employment and
is subject to one of the following conditions:
(a) That the work is performed on the account óf a person running an
undertaking which normally requires the said work or on account of a company
whose operations cover the working of one of the undertakings enumerated
above, even though the company may not undertake the industry for purposes
of gain. The Act does not apply to the work so defined unless the wages paid
for the work by the person or company are not less than 50 kroner a year.
(b) That the work is performed on the account of the state or a commune,
irrespective of the value of the work done.
(c) That the total remuneration for the work is not less than 500 kroner
or if use is made of mechanical power or a steam boiler not less than 100
kroner a year.
If it can be shown that an undertaking covered by the Act does not expose
the workers to the risk of accident, the Crown may exempt it from the liability
to insurance. Such exemption may be granted on the recommendation of the
factory inspector addressed to the government insurance institution in the
case of undertakings in which motive power is obtained from engines of not
more than 1 H.P. or steam boilers with a pressure of not more than half an
atmosphere, provided, however, that such undertakings are not liable to
insurance for other reasons.
Insurance under the Act is not compulsory for state workers, employees
of the main railways or municipal workers if, in the event of accident, they
and their families are entitled to compensation which the Crown considers
equivalent to that provided under the Act.
— 60 —
A special Act of 18 August 1911, amended by the Acts~ of 30 July 1915,
15 June 1917, 19 July 1918 and 16 February 1923, deals with the accident
insurance of seamen. It applies to the crews of Norwegian vessels employed
on foreign or home service, including traffic on inland lakes and river?, provided that the vessels have a gross tonnage of 50 registered tons <>r more
in the case of sailing vessels or of 25 registered tons or more in the case of
steamers or motor vessels.
The Act of 10 December 1920 on the accident insurance of fishermen applies
to fishermen, whalers, sealers, etc., who earn their living by sea-fishing or
catching whales, seals, etc., either exclusively or in connection with another
occupation, and persons belonging to the crews of fishing boats or whaling
or sealing vessels. Nevertheless, members of the crew, fishermen, and whalers
and sealers, etc., on Norwegian vessels having a gross tonnage of 50 registered
tons or more in the case of sailing vessels and 25 tons or more in the case of
steam or motor vessels are exempt from insurance. The Act further applies
to persons who earn their living wholly or partly by navigating small vessels,
and the crews of life-boats and tenders and pleasure boats, in so far as such
vessels have a gross tonnage of less than 50 registered tons in the case of sailing
vessels and less than 25 tons in the case of steam or motor vessels, but not less
than 4 tons gross tonnage.
Finally, the Act applies to the crews of lighters (vessels which have no
independent means of propulsion) of gross tonnage of 4 to 50 registered tons,
provided that the work is carried on as an independent undertaking.
PANAMA
The Act of 16 November 1916 (No. 17) applies to the following industries
provided they are of a permanent nature:
(1) Mines, salt works and quarries.
(2) Metal work in factories and workshops.
(3) Undertakings in which explosives, inflammable, noxious or poisonous
materials are manufactured.
(4) Loading and unloading at warehouses, docks, quays, etc. (Section 9).
(5) Public or private construction, repair, and maintenance of public
works, railways, harbours, roads, bridges, dams, quays, aqueducts, sewers;
construction, repair and demolition of public buildings; all other similar
work carried out on account of a private individual or of any national or municipal authority; undertakings for transport by land, sea, river, navigable
canals, etc., within the jurisdiction of the Republic (Section 5).
The Act applies also to commerce.
PERU
The Act of 20 January 1911 on industrial accidents applies to the following
industries:
(1) Production or transmission of electricity, steam, gas or other power
producing mechanical energy.
(2) Electric or gas lighting systems.
(3) The installation, maintenance or taking down of electric wiring or
lightning conductors.
(4) The installation, maintenance or repair of telegraph and telephone
lines.
(5) Shipbuilding and repairs.
(6) The construction, repair, maintenance and running of railways, bridges
and roads.
(7) Transport by land, sea, river or lake, provided that mechanical traction is used.
— 61 —
(8) Agricultural undertakings in which use is made of other than human
motive power, but only in respect of the workers exposed to tbe risk of accident
by the machinery.
(9) Wharves or quay companies for loading and unloading in which
mechanical appliances worked by other than human power are used (Section 2).
(10) Mining. — Liability under the Act applies to: (a) metal works, with
the attached mines and works; (6) ore dressing works in which other than
human motive power is used; (e) mines, salt mines or works, quarries, deposits of coal, petroleum, borate, saltpetre, guano and other similar substances,
if more than 35 persons are employed (Section 3).
(11) The construction, repair and demolition of buildings.
(12) Factories, workshops and industrial establishments in which other
than human motive power is used (Section 4).
Under Section 5 of the Act its provisions apply to the State, departmental
councils, municipal councils, charitable societies, public educational establishments, for all the works and buildings executed by contract and for all the
factories, establishments and industries maintained by them.
POLAND
In the former Prussian territory of Poland industrial accident compensation,
and consequently the scope of the law, is governed by the German Insurance
Code of 1911 as amended up to 31 December 1918. Insurance against accidents in horticulture is subject to a Decree of 27 August 1921 issued by the
Minister for former Prussian territory 1 .
In former Austrian Poland, the Austrian law remains in force as amended
by an Act of 7 July 1921 a.
The Austrian law was extended to former Russian territory by the Act
of 30 January 1924 concerning the application to the provinces of Warsaw,
Lodz, Kielce, Lublin, Bialystok, Volhynia, Pqlesia, Novogrodek and the
territory of Vilno, the compulsory accident insurance laws in force in the
provinces of Cracow, Lvov, Stanislavov, Tarnopol, and the Teschen districts
of Silesia 3 and the Decree of 7 June 1924 of the Minister of Labour and Social
Welfare concerning the coming into operation of the Act of 30 January 1924.
By this Decree, insurance is compulsory for the following undertakings
irrespective of whether they are the property of natural or artificial persons,
except in the case of standard or narrow gauge railways and undertakings
in agriculture or forestry:
(1) Undertakings in which engines or closed steam boilers are used, and
employing on an average more than five persons throughout the year.
(2) The following undertakings irrespective of the use of engines or closed
steam boilers and the number of persons employed: narrow gauge railways,
electric tramways, steam shipping undertakings on rivers and lakes, transhipment, river transport, towage, railway transhipment, timber floating, loading
and unloading of vessels, depots of cranes and heavy iron, aeroplanes for the
transport of passengers and goods; mines and metal works and related undertakings, the manufacture and use of explosives, construction, including
underground and underwater boring, boring and the sinking of shafts in mines
carried on as independent undertakings; the construction of bridges, canals,
dams; demolition works; drainage; the construction and repair of railways;
the setting up and taking down of iron structures ; building on land ; the construction of roads and navigable waterways; the building industry, including
plumbing, roofing, masonry and carpentry; professional fire-brigades.
1 Dziennih Ustaw, 1921, No. 82, p. 1492.
» Ibid., 1921, No. 65, p. 1096.
8 Jbid., 1924, No. 16, p. 184.
— 62 —
(3) Undertakings in which engines or closed steam boilers are not used
and which are not included under head (2) if they employ on an average more
than 15 persons throughout the year.
In former Russian and Austrian territory miners are subject to the same
provisions as other workers, but Sections 14 and 16 of the Act of 30 December
1917 on Miners' Accident Insurance are still in force.
PORTUGAL
Decree No. 5637 of 10 May 1919 on compulsory social insurance against
industrial accidents covers all undertakings whether industrial, commercial
or agricultural. All manual and non-manual occupations are liable to insurance
whether carried on collectively or individually (Section 1). The insurance is
compulsory for the employer and must cover all the persons working in his
service and in receipt of a wage, salary or other remuneration paid by him.
ROUMANIA
1
The Act of 25 January 1912 on the organisation of handicrafts, minor credit
institutions and workers' insurances, amended by the Acts of 26 April 1913
and 31 May 1913 and by the Act of 2 July 1924, applies to the following
undertakings, whether they belong to private individuals, the State, a province,
or a commune; Industries and handicrafts in which use is made of machinery
driven by engines (steam, gas, electricity, internal combustion, or hydraulic),
construction, earth-works, mines, quarries, saw mills, agricultural undertakings
in which machinery is used, forestry, grain mills, tramways and railways of
all descriptions, inland navigation and shipping, and transport undertakings
in so far as the loading and unloading of goods is concerned.
The Central Office has power to add to this list (Section 140).
RUSSIA
The social insurance system set up under the Labour Code, 1922 (Sections
175 et seq.) which includes accident insurance, covers all employed persons
irrespective of whether the undertakings, institutions and businesses in which
they are employed are state, public, co-operative, established under a concession or lease, of mixed character or private, or whether they are employed by
private individuals, and also irrespective of the nature and duration of their
employment and the method of remuneration.
A Circular of 23 April 1924 excluded agricultural workers employed in
undertakings producing solely for their own requirements and not working
for the market. The contract of employment of such workers must contain
a clause binding the employer to compensate any injuries suffered by the
workers.
A further Circular of the Commissariat for Labour (259/53) of 21 June 1923
excludes seasonal workers employed in certain occupations in the sugar, peat
or alcohol industries or forestry, for which they use their own horses.
SALVADOR
Under the Act of 11 May 1911 on industrial accident compensation, the
employer is liable to insurance in the following industries and works:
(1) Mining of all kinds.
> This analysis refers to the law of the former Kingdom and Bessarabia. The amended
Hungarian law is in force in Transylvania and the Austrian law, as amended to the end of
1918, in BukoTina,
— 63 —
(2) Establishments in which explosive or inflammable, noxious, or poisonous
materials are produced or used in the way of business.
(3) Cartage and land transport by motor car, railway or tramway.
(4) Transport by sea or inland navigation.
(5) Fire brigades.
(6) Undertakings for the generation and distribution of electricity.
(7) Factories or workshops and industrial undertakings in which use is
made of other than human motive power.
(8) Factories and workshops in the metal working, building and shipbuilding
industries.
(9) The construction, repair and maintenance of buildings, including
masonry and all related work; carpentry and joinery, locksmiths' work,
stone-cutting, painting, etc.
(10) Work in agriculture and forestry in which an engine driven by other
than human power is used. (In work of this kind the employer is liable only
in respect of risks in connection with the machinery.)
(11) The cleaning of streets, cesspools and sewers.
(12) Warehouses and wholesale depots of coal, wood fuel, and building
materials.
(13) All work of loading and unloading (Section 6).
SERBS, CROATS AND SLOVENES (KINGDOM OF THE)
The Act of 15 May 1922 on workers' insurance applies to all physical or
mental work for remuneration performed within the territory of the Kingdom
of the Serbs, Croats and Slovenes (Section 3). Consequently as from 1 July
1922, accident insurance has been compulsory for industry, commerce, transport undertakings (by land, sea or river) mining, and home work.
In principle, agricultural undertakings are also liable to insurance, but the
application of accident insurance to such undertakings is held up pending the
issue of an administrative decree. Agricultural undertakings in which steam
boilers or engines driven by natural or animal power are used have been liable
to insurance since the Act came into force, i.e. 1 July 1922.
Sea fishing is in the same position. Such undertakings are, in principle,
liable to insurance, but its application is held up pending the issue of an administrative decree. Unlike the provision for agricultural undertakings (except
those using steam boilers or engines) no period is fixed for the promulgation
of such a decree (Section 6, subs. 6).
State transport undertakings are expressly excluded, provided that the
benefits paid to their workers in the event of accident are not less than those
received under the general workers' insurance system, and, further, provided
that representatives of the staff are entitled to share in the management of
the insurance institute of the State transport undertakings in the manner
provided under the general insurance system (Section 6, subs. 5).
SOUTH AFRICA
The Workmen's Compensation Act of 1914 covers employment in any trade,
industry, business or public undertaking (Section 41), employment by the
Crown, except in so far as other legal provision is made for the compensation
of public servants (Section 3), employment by a local authority, with the same
exception (Section 4), and employment on Union ships (Section 6).
The Act does not apply to employment in agriculture, horticulture or
forestry, except where such employment is in connection with an engine or
machine worked by mechanical power (Section 41), share-fishing (Section 6),
domestic service (Section 41), nor to native labour subject to the Native Labour
Regulation Act No. 15 of 1911 (Section 2).
— 64 —
SPAIN
Section 3 of the Amended Act of 10 January 1922 relating to industrial
accidents enumerates the industries and occupations in which "Employer's
liability" is assumed, irrespective of the number of workers employed;
(1) Factories, workshops and industrial establishments.
(2) Mines, salt mines and quarries.
(3) The construction, repair and maintenance of buildings including masonry
and all related work: carpentry and joinery, locksmiths' work, stone-cutting,
painting, etc.
(4) The construction, repair and maintenance of railways, harbours, roads,
canals, dams, aqueducts, sewers, streets and other similar works.
(5) Undertakings in agriculture, forestry and stock breeding, provided
that they fall under one of the following heads and are not dealt with in a
special act : (a) employing regularly more than six workers ; (b) using agricultural
machinery driven by mechanical power. In this case the employer is liable in
respect of the workers engaged in managing and minding the engines or machinery
and the workers who are victims of accidents occurring in the undertaking.
(6) Cartage, transport of passengers or goods by land, sea or inland waterways, and fishing. Transport by sea is deemed to cover the crews of vessels.
(7) The cleaning of streets, cesspools and sewers.
(8) Theatres as regards their wage-earning staff. The artistes and managing
staff are also entitled to the benefit of the Act provided that their salaries are
not more than 15 pesetas a day. The calculation of compensation is in all
cases based on the average annual earnings of the persons concerned.
(9) Fire brigades.
(10) The installation, repair and removal of electrical wiring and lightning
conductors, and the installation and maintenance of tel egraph and telephone lines.
(11) All persons employed in loading and unloading:
(12) Commercial establishments in respect of their salaried employees,
clerks and travellers1.
(13) Hospitals, asylums, homes, and similar establishments, in respect of
their wage-earning staff, for accidents with which they meet in the performance
of their duties.
(14) The offices and auxiliary departments of factories and industrial undertakings covered by any of the foregoing heads, in respect of their employees
in receipt of a salary of under 5,000 pesetas a year, for accidents with which
they meet in the said factories, workshops or undertakings in the course of
the work ordinarily performed there.
Under Section 11 of the Act, its provisions apply to the State arsenals,
munition factories and industrial undertakings or workshops, as also to the
provinces and municipalities in respect of public works carried out by them.
Section 5 of the Provisional Regulations of 29 December 1922 for the administration of the Amended Act of 10 January 1922 states that the provisions
of Section 3 of the Act do not apply to domestic service. Domestic service
is deemed to be service performed, for a daily wage or not, for a salary or any
other kind of remuneration, on account, not of an employer, but of the master
of a household, provided that the services he requires are not intended for
profit but for work in a private house or dwelling in the exclusive service of
himself, his family, and his employees, irrespective of whether the workers in
question live in the house of their master or not (Section 5, subs. 2).
SWEDEN
The Act of 17 June 1916 on industrial accident insurance, as amended by
the Acts of 14 June 1917, 26 April 1918,19 June 1919,18 June 1920 and 15 June
1
By the Royal Decree of 9 January 1922, banking was excluded from the Act.
— 65 —
1922, contains no limitative definition of the undertakings liable to insurance.
The Act covers all work, industries, trades, shipping, commerce, agriculture,
domestic service and other employment. Only home workers are excluded
from insurance. Under certain conditions workers employed on account of
the State or a commune may be exempt from insurance (Section 3). The
provisions of the Act are not very well defined with respect to artisans and
small employers who have concluded a contract with another employer, but
the usual interpretation is to regard such small employers as workers.
Fishery is not covered by the Act of 17 June 1916, but fishermen who are
not considered to be independent contractors are entitled to insure voluntarily
by the Decree of 11 June 1918.
SWITZERLAND
I — COMPULSORY INSURANCE
Under the Federal Act of 13 June 1911 on sickness and accident insurance
the employees and workers employed in Switzerland in the following undertakings are liable to insurance (Section 60):
(1) Railways, steamships and the postal service.
(2) Undertakings subject to the Federal Factory Act of 23 March 1877 *,
i.e. any industrial undertaking where several workers are regularly employed
simultaneously, away from home and in closed premises.
(3) (a) Undertakings in the building industry; (b) transport by land or
water and rafting; (c) the erection and repair of telephone or telegraph lines,
the installation and removal of machinery and the installation of technical
apparatus; (d) the construction of railways, tunnels, bridges, roads; waterworks ; the sinking of wells and shafts ; the laying of water mains ; the working
of mines, quarries and gravel pits.
(4) Under the supplementary Act of 18 June 1915, undertakings which
manufacture, use or store explosives in the way of trade.
This Act of 18 June 1915 empowered the Federal Council to extend the
scope of the 1911 law. In accordance with Section 16 it issued the Order I
on accident insurance of 25 March 1916, which applies to (a) the Federal
railways; (b) the Swiss postal service; (c) railways and steamship undertakings
which have obtained a concession from the Federal Government under the
Federal Act of 23 December 1872; (d) transport undertakings which have
obtained a concession from the Federal Government under Sections 8 and 9
of the Federal Act of 5 April 1910 on the Swiss postal service (Section 12).
Under the same Order I the following undertakings are liable to insurance :
(1) All kinds of construction and earth works, namely the erection, demolition, alteration, repair or maintenance of any kind of building or construction
or of any part of a building or construction; the manufacture of structural
parts ; the preparation and technical management of works of this kind ; the
cleaning of buildings, roads, squares and public parks.
(2) The installation, alteration and maintenance of technical fittings inside
and outside buildings, e.g. for the transmission of water, gas, or electricity,
or of heating for laundries, etc.; the installation and removal of machinery.
(3) The installation, repair and maintenance of overhead and underground
transmission systems of all kinds, e.g. for high or low tension current, water,
or gas.
(4) Any branch of the transport industry which is not conceded by the
Government, including transport by animal traction or with the assistance
of any kind of motive power; the provision for this purpose of vehicles, draft
animals, and motor cars and lorries.
i This Act was repealed when the Federal Factory Act of 18 June 1914 came into force.
5
— 66 —
(5) The working of mines; extraction by boring; working of quarries; the
extraction of ice, minerals, gravel, sand and similar materials (Section 13).
In pursuance of Section 60 bis of the Act of 18 June 1915 the Federal Council
has declared that insurance is compulsory also for:
(1) Electrical generating stations which generate electricity for distribution to third parties, whatever the original motive, power.
(2) Electrical generating stations which generate electricity to run a plant
connected with them, such as railways, factories and similar undertakings.
(3) Undertakings which receive electricity and distribute it to third parties,
whether they transform the current and tension or not (Section 15).
By Order I, insurance is further compulsory for the following undertakings
even though they are not subject to the Factory Act:
(1) The manufacture of illuminating gas, air gas, acetylene, liquid gas,
spirit of wine, lacquers and varnishes, inflammable articles, fireworks, oxygen,
hydrogen and explosive chemicals.
(2) Tar distillation.
(3) The wholesale storage of spirit of wine, petroleum, petrol, benzine and
other volatile products distilled from petroleum and tar, of explosive chemicals
or fireworks.
(4) The running of garages for keeping, cleaning and repairing motor cars
and lorries.
(5) The running of aviation stations.
(6) Laundering with the use of chemicals.
(7) The running of cinematographs.
(8) Galvanoplasty (Section 16).
Further in pursuance of Section 60 bh, subs. 1 (c), of the Act of 18 June
1915, Order I makes insurance compulsory for:
(1) Industrial and commercial undertakings using for their plant, workyards, depots or warehouses, sidings connecting them with an undertaking
holding a railway or steamship concession.
(2) Commercial undertakings which store large quantities of heavy goods
such as coal, wood, metal, or manufactured goods made of these materials,
building materials, etc., and which use mechanical equipment such as cranes,
elevators, etc. for their transport.
(3) Warehouses and loading and unloading undertakings.
(4) Beer depots which also undertake delivery.
(5) Slaughter houses with mechanical equipment, even if they are not
covered by head (1).
(6) Saw mills (Section 17).
Whereas the Federal Act of 13 June 1911 made no distinction in Section 60
between workers and employees engaged in private undertakings and those
employed by public authorities, Order I on accident insurance specifies that
when any public authority on its own account runs an undertaking liable
to insurance, Sections 2 to 17 of the Order apply (Section 18, subs. 1).
If a public authority regularly employs several workers or employees full
time in works covered by Sections 13 to 17 and connected with the running
of plant for the distribution of water and light, or with a pumping installation,
or with the maintenance of public parks or gardens, the employees and workers
so employed are liable to insurance (Section 18, subs. 2).
Employees and workers engaged in forestry work carried out by a public
authority are also insured. Other work carried out by a public authority
with the labour of workers who are engaged in forestry work, at the same
time as, or in connection with the latter, is included in the insurance, even
if by itself it would not be liable (Order I bis of 20 August 1920, Section 19).
If a public authority temporarily undertakes work covered by Sections
13 to 17 of Order I, the employees and workers employed in this work are
— 67 —
insured if it is likely that not less than five persons will be regularly employed
for at least a month, or if the work requires not less than 100 werking days
(Order I, Sections 20 and 23).
The provisions of Section 18 described above (undertakings and works
performed by a public authority on its own account) apply also to undertakings run mainly for public utility (hospital institutions, etc.) and belonging
to societies or private bodies, provided that they regularly employ not less
than five workers or employees.
If any person undertakes on his own account work of a kind covered by
Sections 13 to 17 of the Order, but not of the nature of an undertaking, the
employees and workers employed are insured if it is likely that not less than
five persons will be regularly employed for a month, or if the work requires
not less than 100 working days.
If an undertaking is mainly engaged in work liable to insurance, the liability
applies also to subsidiary undertakings even though these are of such a nature
that by themselves they would not be liable to insurance (Section 5). If the
undertaking is mainly engaged in work which is not liable to insurance, subsidiary undertakings are liable on condition that (a) the subsidiary undertaking is run separately; (b) it regularly employs not less than five persons;
(c) it is subject to the Factory Act (Section 7, subs. 2).
II. •—• VOLUNTARY INSURANCE
The Act of 13 June 1911 provides for voluntary insurance against risk of
accident for any person not liable to compulsory insurance who is not less than
14 years of age, for as long as he is resident in Switzerland (Section 115).
The main object of this voluntary insurance was to cover agriculture.
III.—VOLUNTARY INSURANCE OF THIRD PARTIES
The heads of undertakings which are liable to insurance and the heads of
undertakings who have insured themselves with all their employees and workers
in accordance with section 115 (voluntary insurance) may insure third parties
at their own expense for whom they are legally responsible in the event of
slight negligence on their part (Section 118).
URUGUAY
The Act of 15 November 1920 (Section 4) gives a list of about 150 industries
and occupations in alphabetical order covering the employments in Uruguay
which could involve the use of machinery or power or exposure to any risk
of injury, and which are subject to the Act, including agriculture so far as
concerns the persons exposed to danger from machinery 1. The list is not
limitative, because the Act covers all industries similar to those enumerated
and, in general, all industrial undertakings or occupations which involve the
use of other than human power, and, further, because the executive authorities
may at any time increase the number of industries and occupations included.
Any employer responsible for operations in which workers are employed
and which for any reason are not included under the provisions of the Act,
may place himself thereunder by enrolling himself in a register kept for this
purpose by the National Labour Office (Section 52).
The State, the provincial authorities and other bodies corporate which
carry on public establishments are liable to the same obligations as those laid
upon employers under the Act, in so far as the kinds of work mentioned in
Section 4 are carried out by persons in their employment (Section 13).
1
Cf. Legislación obrera del Uruguay, Vol. I, No. 1, 1921, pp. 63-66. Montevideo.
— 68 —
COMPARATIVE TABLE OF PRINCIPAL UNDERTAKINGS AND EMPLOYMENTS EXCLUDED
COUNTRY
ARGENTINA
Commerce
(commercial undertakings,
transport by road and
rail, loading and
unloading, etc.)
Agriculture
Factories, workshops,
and industrial establishments other than those
enumerated in the Act,
in which only human
motive power is used.
Excluded, except for
transport, loading and
unloading undertakings.
Undertakings In forestry and agriculture in
which mechanical power
is not used.
Industrial undertakings
employing as a rule less
than 20 persons, in
which steam boilers and
machinery driven by
natural or animal power
are not used, which are
not engaged in construction or metal forging,
and undertakings in
which machinery not
forming part of the
permanent plant is used
only temporarily.
Small commercial undertakings not using
machinery (retail trade).
Undertakings in agriculture and forestry in
which steam boilers or
machinery driven by
natural or animal power
are not used.
Industry
AUSTRALIA
Commonwealth
New South Wales
Queensland
South Australia
Tasmania
Victoria
Western Australia
AUSTRIA
Forestry work performed regularly in small
agricultural undertakings.
— 69 —
FROM THE PROVISIONS OF WORKMEN'S COMPENSATION LEGISLATION
Shipping
Fishery
Domestic Service
Miscellaneous
Excluded.
Vessels ordinarily propelled with oars.
— .
—
Share Ashing.
—
—
—
—
Share Ashing.
—
Share fishing.
Domestic service in
a private family where
the servant is under 16
years of age or is employed less than 8 hours
daily or has, at the date
of the injury, been in
the employment of the
same employer for less
than 60 days continuously.
Share fishing.
—
Excluded.
—
The erection of onestorey dwellings and
other agricultural buildings in rural districts,
provided that the work
is executed only by the
builder, the members
of his household or
other inhabitants of the
same district who are not
building workers by
trade.
Repair work on completed buildings.
— 70 —
COMPARATIVE TABLE OF PRINCIPAL UNDERTAKINGS AND EMPLOYMENTS EXCLUDED
COUNTRY
Industry
Commerce
(commercial undertakings,
transport by road and
rail, loading and
unloading, etc.)
Agriculture
BELGIUM
Industrial undertakings
not enumerated in the
Act, in which machinery
driven by other than
human or animal power
is used only temporarily,
or in which less than
five workers are habitually employed, or which
have not been scheduled
as dangerous by Royal
decree.
Commercial
houses
where less than three
workers are habitually
employed.
Agricultural
undertakings in which less
than three workers are
habitually employed.
BRAZIL
Industrial undertakings
in which machinery driven by other than human
or animal power is not
used.
Excluded, except for
transport, loading and
unloading.
Agricultural
undertakings in which machinery driven by other than
human or animal power
is not used.
—
—
Farming and ranching,
except for lumbering.
—
—
—
BULGARIA
CANADA
Alberta
British Columbia '
Manitoba
—
l
New Brunswick 1
Nova Scotia *
Ontario 1
Excluded.
•
—
—
—
Excluded.
—
Excluded.
Excluded, except transportation, loading and
unloading.
Excluded.
Excluded, except transport by rail.
Excluded.
Undertakings employUndertakings employing less than five workers. ing less than five workers.
Excluded.
Quebec
Saskatchewan
Industrial work performed on a farm for
the purposes only of
the farm.
Yukon
CHILE
Undertakings employExcluded, except transing less than five workers. port, loading and unloading undertakings employing not less than
five workers.
CHINA
Factories employing
less than 100 workers,
or which are not dangerous or unhealthy.
i
Part I of the Act.
Excluded.
Excluded.
Undertakings in agriculture and forestry
and stock
breeding
employing less than
Ave workers.
Excluded.
— 71 —
FROM THE PROVISIONS OF WORKMEN'S COMPENSATION LEGISLATION
Shipping
Maritime navigation.
Fishery
Sea fishing.
Domestic Service
(COTlt.)
Miscellaneous
Excluded.
•
—
—
Excluded.
—
—
—
Excluded.
—
—
—
Excluded.
—
—
—
Excluded.
The entertainment industry; the operation
of aircraft.
—
—
Excluded.
Logging and other timber work, municipal fire
departments.
—
—
Excluded.
Municipal fire departments.
—
—
—
Excluded.
—
—
Navigation by means
of sails.
Excluded.
—
Excluded.
Excluded.
Excluded.
Excluded.
—
Excluded.
—
Excluded.
—
Undertakings employUndertakings employing less than five workers. ing less than five workers.
Excluded.
Excluded.
Excluded.
— 72 —
COMPARATIVE TABLE OF PRINCIPAL UNDERTAKINGS A'ND EMPLOYMENTS EXCLUDED
COUNTRY
CUBA
CZECHOSLOVAKIA
Industry
Commerce
(commercial undertakings,
transport by road and
rail, loading and
unloading, etc.)
Agriculture
—
Excluded, except for
transport undertakings
and warehouses.
Undertakings in which
machinery not forming
part of the permanent
plant is used only temporarily.
Small commercial undertakings not using
machinery (retail trade).
Undertakings in agriculture and forestry in
which steam boilers or
machinery driven by
natural or animal power
are not used (former
Austrian territory).
Work performed by
agricultural workers not
living in the household
of the employer (former
Hungarian territory).
Undertakings not
enumerated in the Act
in which only human
motive power is used.
Excluded, except for
transport, warehouses
and wholesale depots of
coal, wood fuel and
building timber, loading
and unloading.
Undertakings in agriculture and forestry in
which engines driven by
other than human power
are not used.
Excluded.
DENMARK
ECUADOR
ESTHONIA
FINLAND
Excluded, except for
the handling of goods
at docks, quays, wharves
or warehouses and transport.
Undertakings in which
only the employer, his
wife and his children
under age are employed.
Factories, handicrafts
and other industrial
undertakings in rural
districts in which no use
is made of steam boilers
or machinery driven by
other than human motive
power or in which there
is no technical plant.
By an Order, certain
industrial establishments
in which the risk of accident is slight have been
excluded : viz., watch
factories, optical instrument factories, scientific instrument undertakings, undertakings for
the manufacture of boots
and shoes, saddlery,
furriery, decorating and
paper hanging, the manufacture of clothing, weaving, bakeries, laundries
and ironing establishments, hairdressers' establishments.
Excluded, except for
the loading and unloading, and warehousing of
goods, and transport.
Excluded, except for
agricultural undertakings
in which machinery
driven by natural power
is used for not more
than 14 days in the year.
— 73 —
FROM THE PROVISIONS OF WORKMEN'S COMPENSATION LEGISLATION
Shipping
Excluded.
Fishery
Excluded.
Domestic Service
(COtlt.)
Miscellaneous
Excluded.
—
Excluded.
The erection of onestorey dwellings and
other agricultural buildings in rural districts,
provided that the work
is executed only by the
builder, the members of
his household or other
inhabitants of the same
district who are not
building workers by
trade.
Casual or temporary
domestic service if the
employer is not bound
by a contract with other
workers liable to insurance.
Maritime navigation.
Excluded.
Excluded.
Excluded.
Excluded.
"
Excluded, except for
fishery carried on as a
Business it more than
three paid workers are
employed simultaneously-
Excluded.
The construction of
roads and bridges on
which less than Ave persons are employed at the
same time.
The construction and
repair of houses in the
country if less than Ave
workers are employed at
the same time.
Undertakings situated
in certain remote rural
districts.
— 74 —
COMPARATIVE TABLE OF PRINCIPAL UNDERTAKINGS AND EMPLOYMENTS EXCLUDED
COUNTRY
Industry
Commerce
(commercial undertakings,
transport by road and
rail, loading and
unloading, etc.)
Agriculture
FRANCE
GERMANY
GREAT BRITAIN
GREECE
Undertakings regularly employing less than
10 paid workers in which
neither explosives, electricity, steam boilers,
nor machinery driven
by natural or animal
power are used.
Small
commercial
undertakings (in which
the persons employed
work less than 300 working days a year).
Small home gardens
or ornamental gardens
which are worked with
the assistance of special
labour, and the produce
of which is intended
mainly for the household of the producer.
—
—
—
Industrial
establishments, workshops etc.
in which machinery is
not used, and undertakings in which explosive
or poisonous substances are not used, or
machinery driven by
other than human or
animal power.
Excluded, except for
transport undertakings,
loading, unloading and
warehousing.
HUNGARY
INDIA
Excluded.
All work performed by
agricultural workers not
liring in the household
of the employer and not
using machinery.
Factories employing as
a rule less than 20 persons and not using mechanical power.
Excluded, except for
the loading and unloading of vessels, if
mechanical or electrical
power is used, and railway undertakings.
IRISH FREE STATE
"
Excluded.
— 75 —
FROM THE PROVISIONS OF WORKMEN'S COMPENSATION LEGISLATION
Shipping
Fishery-
Domestic Service
(COTlt.)
Miscellaneous
Excluded.
—
Fishermen remunerated wholly or mainly by
a share in the profits of
the vessel (except under
certain conditions).
—
—
Excluded.
Maritime navigation.
Sea fishing.
Coasting vessels of a
registered tonnage of
less than 300 tons, inland
steam vessels of a registered tonnage of less
than 100 tons.
Excluded.
Excluded.
Share fishing.
"
The construction, repair or demolition of
one-storey buildings or
buildings which are not
intended for industrial
or commercial purposes
or which, if intended for
such purposes, are less
than 20 feet in height,
and the construction,
repair or demolition of
bridges of less than 50
feet in length.
— 76 —
COMPARATIVE TABLE OF PRINCIPAL UNDERTAKINGS AND EMPLOYMENTS EXCLUDED
COUNTRY
Industry
Commerce
(commercial undertakings,
transport by road and
rail, loading and
unloading, etc.)
Agriculture
ITALY
The construction or
working of railways or
tramways with mechanical traction, irrigation,
works required for repairing the effects of
landslides and floods,
the construction and
repair of harbours, canals and dams, ships,
bridges, tunnels and
roads, provided less than
five workers are employed.
Undertakings in which
machinery is not used
or in which the machinery is driven directly by
the worker using it,
provided that less than
five workers are employed.
JAPAN
Factories employing regularly less than 10
workers, unless the work
is dangerous or unhealthy.
Undertakings excluded
by an Order owing to
the slight risk of accident.
LATVIA
Industrial
undertakings 2 employing less
than Ave workers.
Excluded, except for
transport undertakings.
Excluded.
—
Excluded, except for
transport.
Excluded.
LITHUANIA s
LUXEMBURG
NETHERLANDS
Excluded, except for
loading and unloading
and transport, provided
that more than five workers are employed and
undertakings enumerated in the Act-
Excluded i.
Industrial undertakings
Excluded, except for
and the clothing, toilet transport and warehouse
articles, and food trades, undertakings connected
in which the risk of with a wholesale comaccident is slight.
mercial business.
—
—
Excluded.
Undertakings in agriculture and forestry of
less than 10 ares in
size.
—
NEW ZEALAND
NORWAY
Industrial
undertakings not using mechanical motive power or
steam boilers, not being
factories or run as factories, not being enumerated in the Act; all industrial undertakings in
which the total amount
of wages is less than
50 kroner a year.
Excluded, except for
Undertakings in agrithe loading and unloading culture in which neither
of vessels and work in mechanical power nor
the depots, warehouses steam boilers are used.
and sheds of harbours,
unless the wages paid for
the work are less than
50 kroner a year.
1
Voluntary insurance is allowed under the Act of 22 April 1922 for the storing of minerals, transpor
loading and unloading. — 2 Undertakings covered by the Act of 2 June 1903. — s Except for theKlaipéd
(Memel) territory.
— 77 —
FROM THE PROVISIONS OF WORKMEN'S COMPENSATION LEGISLATION
Shipping
Fishery
Excluded, except for
inland navigation, if
more than four workers
are employed.
Excluded.
Miscellaneous
Excluded.
Transport by river,
canal or lake if less than
Ave workers are employed.
Maritime navigation if
less than Ave workers
are employed.
Excluded.
Domestic Service
(cotlt.)
Excluded.
—
Excluded.
Excluded.
Excluded.
—
Excluded.
—
"
—
Sailing vessels of less
than 50 tons and steam
or motor vessels of less
than 25 registered tons.
. —
Sailing vessels of 50
tons or more, or less
than 4 tons, and steam
or motor vessels of 25
tons and more, or less
than 4 tons.
Excluded, except for
specially dangerous work.
Excluded.
—
— 78 —
COMPARATIVE TABLE OF PRINCIPAL UNDERTAKINGS AND EMPLOYMENTS EXCLUDED
Industry
Commerce
(commercial undertakings,
transport by road and
rail, loading and
unloading, etc.)
—
—
PERU
Industrial
undertakings in which only human
motive power is used.
Mining and quarrying
it not more than 35 persons are employed.
Excluded, except for
loading and unloading if
use is made of mechanical appliances worked
by other than human
power.
POLAND i
Undertakings other than Excluded, except for
those enumerated in the the loading and unAct using engines or loading of vessels, work
steam boilers and em- in depots and underploying not more than takings using engines or
five workers, and under- steam boilers and emtakings not using en- ploying more than 5
gines or steam boilers workers, and undertakand employing not more ings not using engines or
than 15 workers.
steam boilers and employing more than 15
workers. Standard and
narrow gauge railways.
COUNTRY
PANAMA
Agricultural
undertakings in which only
human motive power is
used.
Excluded.
—
—
Industries and handicrafts, except those
specified in the Act or
in which use is made of
machinery driven by
steam, gas, electricity,
internal combustion or
hydraulic engines.
Excluded, except for
transport and the loading and unloading of
goods.
Agricultural undertakings in which machinery
is not used.
—
—
Agricultural
undertakings not working for
the market.
Excluded, except for
warehouses and wholesale depots of coal, wood
fuel and building materials, and all work of
loading and unloading.
Work in agriculture
and forestry in which an
engine driven by other
than human power is not
used.
—
The application of the
Act is suspended except
for undertakings in which
steam boilers or engines
driven by natural or
animal power are used.
—
Employment in agriculture, horticulture or
forestry if engines or
machines worked by
mechanical power are
not used.
RUSSIA
SALVADOR
SERB-CROATSLOVENE KINGDOM
SOUTH AFRICA
i
Excluded.
—
PORTUGAL
ROUMANIA 2
Agriculture
Former Russian territory. —
—
2
The former kingdom and Bessarabia.
— 79 —
FROM THE PROVISIONS OF WORKMEN'S COMPENSATION LEGISLATION
Shipping
Excluded.
Transport by land, sea,
river or lake, if mechanical traction is not used.
Fishery
Excluded.
Excluded, except for
undertakings using engines or steam boilers
and employing more
than 5 workers, and undertakings not using
engines or steam boilers
and employing more
than 15 workers.
—
—
.—
—
—
Excluded.
—
—
—
—
Excluded.
—
Excluded.
—
Excluded.
Miscellaneous
Excluded.
Maritime navigation,
except for undertakings
using engines or steam
boilers and employing
more than 5 workers,
and undertakings not
using engines or steam
boilers and employing
more than 15 workers.
Excluded.
Domestic Service
(COilt.)
The application of the
Act is suspended for sea
fishing.
Share-fishing.
Excluded.
—
Excluded.
—
— 80 —
COMPARATIVE TABLE OF PRINCIPAL UNDERTAKINGS AND EMPLOYMENTS EXCLUDED
COUNTRY
Industry
Commerce
(commercial undertakings,
transport by road and
rail, loading and
unloading, etc.)
Banking.
SPAIN
Undertakings in agriculture, forestry and
stock breeding in which
not more than six
workers are employed,
or in which no use is
made of agricultural
machinery driven by
mechanicalpower.
—
—
SWITZERLAND
Small undertakings not
enumerated in the Act.
Commercial
undertakings which do not
store large quantities of
heavy goods, nor make
use of mechanical equipment for the transport
of such goods, except the
wholesale storage of
inflammable goods or
explosives, warehouses
and loading and unloading undertakings,
and beer depots which
also undertake delivery.
URUGUAY
Industrial
undertakExcluded, except for
ings or occupations which transport undertakings.
use only human power.
SWEDEN
Agriculture
—
Excluded.
Agricultural
undertakings in which machinery is not used.
— 81 —
FROM THE PROVISIONS OF WORKMEN'S COMPENSATION LEGISLATION
Shipping
Fishery
Domestic Service
(concluded)
Miscellaneous
Excluded
—
Voluntary insurance
for fishermen not deemed to be workers.
—
—
Excluded.
—
—
Excluded.
—
CHAPTER II
CLASSES OF WORKERS COVERED
§ 1 — Introduction
In the preceding chapter the undertakings and services subject
to legislation on industrial accident compensation have been
examined. The present chapter will deal with the classes of workers
who benefit by the provisions of such legislation.
This study is necessary, for, within the undertakings subject
to the law, all persons are not entitled in the event of accident
to the compensation provided by the law, while on the other hand,
several classes of persons not working in undertakings properly
so-called are often subject to the law. In some cases, work which
is normally covered by the law, if performed outside an undertaking, is not in itself enough to place the worker under the law.
Legislation on industrial accident compensation is governed by
the principle of occupational risk, according to which the employer
must pay compensation for any accident to one of his workers,
whether manual or non-manual, and irrespective of his ra te of pay.
The full application of the principle would mean the inclusion
of all paid workers and only paid workers in the class of beneficiaries. But the idea of the economic inferiority of the workers
intervenes, sometimes to limit the scope of the law, sometimes
to extend it.
Thus a given group of paid workers has been excluded because,
owing to their privileged situation from the point of view of remuneration, they seemed able to cover their own risks. On the
other hand, certain accident insurance laws have been extended
to cover specific classes of non-wage-earners on the same grounds
of economic inferiority. As a rule, they are independent persons
with a low income, such as artisans working at home, or persons
who are semi-independent, semi-paid, such as métayers whose conditions are sometimes less favourable even than those of workers
properly so-called.
Apart from these exceptions, it should be observed that the
various laws on industrial accident compensation make the right
to compensation depend on the existence of a legal bond between
— 83 —
the person applying for compensation and the person applied to.
The form of the bond may vary. It may relate to the hiring of
work, association, the hiring of things, mandate, etc. Whether
the contract is one of employment or of apprenticeship, whether
it is a case of piece work, co-operative association or profit sharing,
the agreement binding the worker, employee, or apprentice to the
employer always supposes the actual employment of the beneficiary in, or even outside, an undertaking subject to the law.
As a rule this condition in industrial accident legislation is supplemented by various others to be fulfilled by the workers covered
and these must be studied in greater detail. For the sake of clearness they will be considered in turn, the following points being
dealt with more particularly: sex, nationality, nature of occupation, existence or absence of remuneration, wage or income limit,
period of employment, work in a public or private undertaking,
the place of work, the position of independent workers.
§ 2. — Conditions to be Fulfilled by Workers covered by the Law
SEX
Industrial accident compensation legislation applies without
distinction to men and women employed in the undertakings
and services covered. This is in conformity with the principle of
occupational risk.
NATIONALITY
The part played by the nationality of beneficiaries under the
different accident compensation laws will be studied separately 1.
AGE
Most of the laws at present in force apply the principle of occupational risk to workers and employees irrespective of their age.
Any person who is admitted to employment is entitled to compensation and in principle the right of the workers to the prescribed
compensation cannot be affected by considerations of age. A
few laws, however, exclude persons whose age is not between
certain limits. Thus Section 2 of the Swedish Act excludes minors
of under 12 years of age, although they may insure voluntarily.
In Italy the Legislative Decree of 23 August 1917 (No. 1450)
concerning compulsory insurance against accidents in agricultural
work, amended by the Act of 20 March 1921 and the Legislative
1
See Part VI.
— 84 —
Decree of 11 February 1923, states in Section 1 that permanent
or casual workers employed in agriculture or forestry are insured,
as well as land owners, métayers, tenant farmers, their wives and
children, including illegitimate children, who habitually perform
manual labour, provided that they are between 12 and 65 years of age.
NATURE OF THE OCCUPATION
Whereas considerations of age have as a rule carried no weight,
in several countries the nature of the occupation has been taken
into consideration.
The occupation may be either manual or non-manual. In the
strict sense of the word the worker is a person who performs manual
work. He takes the most active part in the work and seems more
exposed to the risk of accident than any other person. As already
remarked in the first chapter of this part, compensation laws
frequently endeavoured to draw a distinction between dangerous
and safe industries, a distinction which is still retained in several
laws. The discrimination would even seem to have been introduced
with respect to the different kinds of work performed in a single
undertaking. In the mind of the legislator "the worker" is simply
that potential claimant under an accident compensation law
who, within the undertaking covered, performs the most dangerous
work, and therefore such a person is covered in every country
by the provision for accident compensation.
A non-manual worker does not take part in the material work.
His functions are those of management, supervision, administration,
that is to say, in general, non-manual work. But since he lives
and works side by side with the workers, like them he in exposed
to the risk of accident although often to a smaller extent. In
the large majority of countries non-manual workers are therefore
treated in the same way as manual workers as far as compensation
for industrial accidents is concerned.
The exclusion of non-manual workers from the protection of
workmen's compensation laws is in contradiction with the principle of occupational risk which admits of no distinction between
the wage-earners based on the nature of their occupations. Moreover, since the risk of accident they run is smaller, the cost of
compensation to the employer is considerably reduced, so that
the extension of compensation legislation to non-manual workers
can hardly impose a heavy burden on national industry. When
the French bill was debated in the Senate the reporter, Mr. Thévenet,
replied as follows to the objection that there were no occupational
risks for non-manual workers : "When there is an explosion in a
— 85 —
factory, does it pick out the worker who earns three francs, or
the one who earns fifteen, or the engineer supervising the work
who earns 10,000 to 15,000 francs a year ? Since in a factory run
by machinery everyone is exposed to occupational risks, we
have therefore decided that everyone should benefit" 1 .
In the majority of States, equality of treatment for manual
and non-manual workers is an actual fact. The compensation
laws of the following countries include in the same definition
either " workers and employees " or "all persons " working in the
undertakings and services covered by the law, without distinguishing
between manual and non-manual workers : Argentina 2, Australia
(New South Wales2, Queensland2, South Australia2, Tasmania 2 ,
Western Australia 2 ), Brazil, Bulgaria, Canada (Alberta, British
Columbia, New Brunswick, Nova Scotia, Ontario, Quebec2, Yukon),
Chile, Denmark, France, Greece, Hungary, Luxemburg2, Netherlands,
Panama, Peru2, Portugal, Roumania, Russia, Kingdom of the Serbs,
Croats and Slovenes, South Africa2, Sweden2, Switzerland, Uruguay.
In Germany the law expressly treats the officials of undertakings
(Betriebsbeamte) in the same way as workers if they are employed
in undertakings or occupations covered by the law. The German
example has been followed in Austria, Czechoslovakia, Esthonia,
Latvia, Norway, Poland. The Belgian Act embodies a similar
principle, for it treats non-manual workers in the same way as
manual workers if they are exposed to the same risks owing to
their direct or indirect participation in the work. The Manitoba
Act contains the same idea, excluding only employees who are not
exposed to the risk of accident.
Under other laws, on the contrary, the non-manual workers in
undertakings are not entitled to the compensation due in the event
of accident to manual workers. In this group of laws non-manual
workers are not treated in the same way as manual workers
unless their wages fall below a certain figure. The group includes
the laws of the following countries: Belgium, Commonwealth of
Australia, Cuba, Finland, Great Britain, India, Italy, Japan, Lithuania, New Zealand, Saskatchewan, Spain, Victoria.
Certain, though few, laws confine the right to compensation to
manual workers, for instance those of Ecuador and Salvador.
EXISTENCE OR ABSENCE OF REMUNERATION
Although the contract of employment may be based on work
for a consideration and supposes the existence of remuneration,
1
Senate, 17 March 1896. Journal officiel, p. 254. Quoted by LOUBAT, Traité
sur le risque professionnel, p. 156. Paris, 1907.
* The law, however, fixes an income limit for "workers" and "employees".
— 86 —
whether the agreement is explicit or implicit, whether the remuneration is high or low, and whatever its nature, certain laws
nevertheless allow the right to compensation to persons who receive
no remuneration for their services. In the following countries
in particular, the existence or absence of payment is not taken
into account in defining beneficiaries of the law: Argentina,
Austria, Chile, Czechoslovakia, Denmark, Ecuador, Germany,
Poland, Salvador.
In several other states, on the contrary, the absence of remuneration, however defined, deprives the person in question of the
quality of worker or employee. This is the position, for instance,
in the following countries : Belgium, Cuba, France, Hungary, Italy,
Netherlands, Portugal, Spain, Kingdom of the Serbs, Croats and
Slovenes, Sweden.
In practice, the force of such provisions is necessarily limited, in
view of the fact that under the present system of paid work the vast
majority of persons employed in the undertakings or services
subject to compensation legislation perform their work only in
return for pay calculated by time or output.
It is important to note, however, that a worker may perform
services without demanding remuneration and be exposed to the
risk of accident as much as paid workers and employees. Apprentices, voluntary workers, minors, pupils in schools, and often the
members of the employer's family are in this position. The situation
of each of these groups under the laws in force will be considered
separately.
Apprentices, Voluntary Workers, Workers on Probation, and Minors
In many respects the position of apprentices is similar to that of
workers properly so-called. Like these, they take part in the work
of the undertaking and are exposed to the same risk of accident.
Sometimes, even, their lack of experience makes the risk of accident
more serious and more frequent.
The agreement binding them to the employer, the contract of
apprenticeship, is very similar to the contract of employment.
Under the contract of apprenticeship, the apprentice is bound to
work for the head of an undertaking, a manufacturer, or any other
employer on the agreed conditions and for the agreed period,
receiving in return technical instruction. He is subordinate to the
head of the undertaking whose orders he receives, and therefore
it is only fair that in the event of accident he should be entitled to
the same compensation as other workers. This method has in fact
been adopted in every law.
— 87 —
Whether apprentices are included in the general definition of the
terms "workers and employees", or whether the law expressly
states that they are to be treated in the same way as "workers and
employees", all the legislation in force not only places apprentices
in the same position with respect to accident compensation, but
sometimes even allows them more favourable treatment. Thus, in
various countries in which a person is not deemed to be a worker
if he is not paid, apprentices benefit by the provisions of the law
not only if they are on short pay owing to their training being
incomplete, but also if no provision at all is made for their payment in
the contract of apprenticeship (Belgium, Cuba, France, Italy, Netherlands, Kingdom of the Serbs, Croats and Slovenes, Sweden). In
certain other countries, however, such as Finland, British India,
and Portugal, no such provision is made and only paid apprentices are regarded as covered by the law.
In countries in which the existence of payment is not considered
an absolute condition for being deemed a worker or employee, the
law sometimes expressly states that even apprentices on short or
no pay are entitled to compensation in the event of accident.
Thus the Austrian Act applies to apprentices, voluntary workers
and workers on probation, and other persons who receive short
or no pay because their training is not yet completed (Section 1).
Similarly under the Danish Act apprentices must be insured,
whether they are paid or not.
It should be pointed out that various laws treat not only apprentices properly so-called in the same way as workers, but also other
classes of persons whose position is very similar to that of apprentices from the point of view of remuneration and technical
training.
Thus, under the German law assistants and journeymen are
treated in the same way as workers, and under the Austrian law,
as already explained, voluntary workers, persons on probation
and other persons who receive short or no pay because their
training is not yet completed.
The Dutch law deems voluntary workers to be workers, even
if they are not paid, as also other persons who cannot be paid owing
to their technical training not being completed, and persons of
under 21 years of age.
In the Kingdom of the Serbs, Croats and Slovenes, voluntary
workers and other persons who are on short pay because their
technical training is not completed are entitled to the benefits
conferred by the Act in the same way as workers and employees.
— 88 —
The Uruguayan law treats not only apprentices but also minors
of under 21 years of age in the same way as workers.
Pupils in Schools
In certain countries pupils in schools are subject under certain
conditions to the same provisions as workers and apprentices
properly so-called.
In Sweden for instance the pupils of horticultural, cookery,
and similar schools, in which the school is to some extent dependent
on the work of the pupils, are covered by the Accident Insurance
Act.
In Italy, the pupils of industrial or technical schools employed
in the workshops attached to the schools are covered by the Act
of 1904. Further under Section 3 subsection 1 of the regulations for
the administration of the Legislative Decree of 23 August 1917 on
compulsory insurance against accidents in agricultural work,
amended by the Act of 20 March 1920, pupils in institutions for
instruction in agriculture or forestry are insured if they perform
any of the work defined in Section 2 of the Legislative Decree 1
and Sections 1 and 2 of the regulations, whether for purposes of
instruction or of practical training.
In France, a pupil in a technical school, part of whose training
consists in employment for instance in a mine, may be deemed to
be a worker if he really works as such, for wages, under the authority
and supervision of the head of the undertaking and without any
outside interference 2.
In the Kingdom of the Serbs, Croats and Slovenes, the pupils
in workshops and public educational institutions are treated as
apprentices and voluntary workers.
The Hungarian law pro\ides for the voluntary insurance of pupils
in apprenticeship schools to which workshops are attached.
Members of the Family of the Employer
The lack of technical knowledge is often a reason for the absence
of remuneration. Similarly, a worker or employee may not be in
a position to demand payment owing to his family-relationship
1
Section 2 of the Decree runs: "An undertaking in agriculture or forestry
shall mean the cultivation of land or woodland and the operations connected
therewith, supplementary or accessory thereto, such as the raising of plants;
irrigation; the keeping, breeding and management of stock; the preparation,
preserving, manufacture and transportation of the products of agriculture,
stock keeping and forestry."
2
SACHET: Traite théorique et pratique de la législation sur les accidents du
travail, Vol. I, p. 130. 1921.
— 89 —
with the employer. Several accident compensation laws contain
provisions concerning the members of the family of the employer.
In piinciple the family relationship between an employer and his
worker or employee need not hinder the conclusion of a contract of
employment. The only obstacle to the conclusion of such a contract is the community of interests created by a contract of
marriage. Thus, a son may enter into his father's service just as
a father may become his son's worker. In such cases, however, it
often happens that the right to payment is renounced or not stipulated at all. As a rule, therefore, the members of the family
of the employer may be considered as workers or employees if they
fulfil the conditions defined by the law as qualifying for compensation, and the principle of occupational risk ipso facto applies. In
some countries it is accordingly argued that kinship should not
dispense the employer from the obligation to pay the compensation which in the event of an accident would have been due to the
worker if he had not been a member of his employer's family, and
therefore the law, carrying out the fundamental theory, stipulates
that under certain conditions the members of the family of the
employer should be in the same position as other workers.
Thus, Section 9, subsection 2, of the regulations for the administration of the Bulgarian Act of 6 March 1924 treats the members of the
family of the employer in the same way as workers and employees,
except for his wife and ascendants or descendants who are under age.
Under the Danish Act (Section 51) the members of the family
of the employer, except his wife, are liable to insurance if they
can be regarded as being in the same position as other workers in
view of the nature and importance of their work in his undertaking,
and if they are over ten years of age. For fishing and small shipping, the same Act (Section 66 b) states that insurance is compulsory
for members of the employer's family, with the exception of his
wife, in so far as the natuie and scope of their work in the undertaking places them in the same position as other workeis. For agriculture, the Act (Section 71) specifies that the insurance shall apply
also to the members of the employer's family, with the exception
of his wife, in so far as the nature and scope of their work in the
undertaking places them in the same position as other workers,
unless their maintenance for life (Aftaegt) is properly secured to
them on the property on which they are employed by a rent charge
or in some other way. It should be remarked that this provision,
which is wider than the corresponding provision for the family of
an industrial employer, prescribes no age limit.
— 90 —
In Italy, insurance is compulsory for the members of the family
of the head or manager of the undertaking, provided that they
take an important part in the work or supervise it, and further
that they may be deemed workers within the meaning of the Act
(Section 11, subsection 3, of the Regulations). By the Act of 23
August 1917 on compulsory accident insurance in agriculture, the
wives and children, including illegitimate children, of landowners,
métayers and tenant farmers are also insured if they habitually
perform manual labour in the undertaking.
Swiss law contains similar provisions. Section 25 of Order I
of 1916, amended by Order Iter on accident insurance of 8 December 1922, specifies that insurance is not compulsory for the wife
or husband or the relatives living with the head of an undertaking,
unless it is shown, either by a formal declaration on the part of the
head of the undertaking, or by special circumstances such as their
regular employment in the undertaking or the proper remuneration for their work, that they should be included among the workers
and employees of the undertaking.
In addition to the above laws, which, under certain circumstances,
treat the members of the employer's family in the same way as
workers or employees, there is a second group, in which such
persons are expressly excluded. The laws in this group consider
that the relationship created by living in the same household
constitutes an obstacle to the conclusion of a contract of employment, and cannot justify the application of the principle of occupational risk.
Thus in Great Britain, the members of the employers' family who
live under the same roof are not entitled to compensation. The
term covers the following persons: wife or husband, father, mother,
grandfather, grandmother, stepfather, stepmother, son, daughter,
grandson, grand-daughter, stepson, stepdaughter, brother, sister,
half-brother, half-sister.
In South Australia, Western Australia, and New South Wales,
members of the family of the employer living under the same
roof are excluded — viz. wife or husband, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter,
grandson, grand-daughter, stepson, stepdaughter, brother, sister,
half-brother, half-sister.
The laws of Queensland, Tasmania, and Victoria add to this
list all persons to whom the employer stands in loco parentis.
The compensation laws of the Canadian Provinces similarly
exclude the members of the employer's family.
— 91 —
In Finland, the Act of 1917 does not apply to undertakings in
which only the employer, his wife and their children under age are
employed. Such persons are exempt even if they are employed in
an undertaking in which other persons are also employed.
In Luxemburg, the members of the employer's family are similarly excluded from the scope of the law, but employers who belong
to the Industrial Accident Insurance Association are entitled to
have them insured voluntarily.
The compulsory insurance of agricultural workers introduced by
the Dutch Act of 20 May 1922 does not apply to children of the
employer living in his household. This provision is due to the
state of opinion among the agricultural population.
Under the Swedish Act (Section 2), compensation is not payable
in respect of the employer's child or adopted child, or parents
or adoptive parents, living with him. The wife or husband of the
employer is similarly excluded.
WAGE OR INCOME LIMIT, AND THE EXCLUSION OF HIGHLY PAID
WORKERS
The extent to which the definition of workers covered by the law
is subject to the existence of payment has already been discussed.
The question how far the definition is influenced by the amount
of the payment remains. The answers contained in the different
laws vary. The principle of occupational risk on which compensation legislation is based should logically apply to all workers in the
undertaking, the human factor being treated on this principle in
the same way as the machinery factor as far as compensation for
the injuries due to accident is concerned. Logically, therefore,
the best paid worker should be entitled to compensation calculated
according to the same rules as for the worst paid labourer. In some
countries the legislator, with a view to reducing the burden on
industry, has argued that the pay of the highly paid worker is not
only remuneration for his work, but also a premium for the risks
he runs. The application of the principle of occupational risk is
modified by consideration for the economic inferiority of the class
of paid workers, and maximum wage or income limits are fixed
above which the worker or employee loses the right to compensation in the event of accident.
Mention has already been made, in the account of the development of compensation legislation, of the example of the British
Act fixing an income limit for non-manual workers of £250, raised
— 92 —
in 1923 to £350. This tendency to increase the maximum income
— a tendency which was particularly marked after the war — is
to be found in certain other countries. In many cases the object
was to adapt the limits fixed by the law to changes in the purchasing
power of money, whereas in others it was very clearly to enlarge
the scope of the law. Such an adjustment or extension took place,
for instance, in South Australia, where the limit was raised from
£5 a week in 1911 to £10 in 1925 ; in Western Australia, where it was
raised from £300 a year in 1912 to £400 in 1920; in Belgium, for
non-manual workers, from 2,400 francs a year in 1903 to 7,300 francs
in 1921; in Saskatchewan, for non-manual workers, from 1,200 dollars a year in 1911 to 2,000 dollars in 1920; in Finland from
3,000 marks a year for non-manual workers in 1917 to 15,000 marks
in 1919; in Sweden from 5,000 kronor a year in 1916 to 9,000
kronor.
Side by side with this tendency to raise the income limit, certain
countries show as the ultimate phase a tendency to abolish all
limits and apply the principle of occupational risk to all manual
and non-manual workers in the undertakings covered. In Germany,
for instance, whereas in 1914 insurance was compulsory only for
employees whose income fell below 5,000 marks a year, the limitation was entirely withdrawn by the Act of 19 July 1923.
Under the Danish Act of 1916, insurance was not compulsory for
certain classes of workers such as teachers, musicians, commercial travellers, etc., unless their earnings were below a certain
maximum, but, on the grounds that such income limits were
arbitrary, and would in practice lead to difficulties, the Rigsdag
abolished the limits by the Act of 1920.
In addition to Germany and Denmark, certain other countries
have already reached this stage of development, for their legislation prescribes no income limit for workers and employees. They
include: Austria, Brazil, Bulgaria, Czechoslovakia, Canada (Alberta,
British Columbia, Manitoba, New Brunswick, Nova Scotia, Ontario,
Yukon), Chile, Esthonia, Ecuador, France, Hungary, Latvia,
Netherlands, Norway, Panama, Poland, Portugal, Roumania,
Russia, Salvador, Kingdom of the Serbs, Croats and Slovenes,
Switzerland, Uruguay.
In spite of this tendency of modern legislation, several laws are
still to be found excluding from the general system of compensation either all workers, or only non-manual workers, whose earnings
exceed a certain limit:
— 93 —
Argentina
• Workers and employees employed in undertakings covered
whose earnings exceed 3,000 piastres a year.
A ustralia
Commonwealth: Non-manual workers whose remuneration exceeds £500 a year.
New South Wales: Persons whose remuneration exceeds £525
a year.
Queensland: Persons whose rate of remuneration at the time of
the accident exceeds £10 a week.
Tasmania: Persons whose remuneration exceeds £5 a week.
Victoria: Non-manual workers whose remuneration exceeds
£250 a year.
South Australia: Persons whose average remuneration exceeds
£10 a week.
Western Australia: Persons whose remuneration exceeds £400
a year.
Belgium
Employees whose salary exceeds 7,300 francs a year.
Canada
Saskatchewan: Persons employed otherwise than by way of
manual labour whose remuneration exceeds $2,000 a year.
Quebec: Workers whose remuneration exceeds $1,500 a year.
Cuba
Non-manual workers whose wages exceed 3 gold pesos, and
whose contracts of employment are valid for less than 30 days.
Finland
Persons managing and supervising the work of others, if their
earnings exceed 15,000 Finnish marks a year.
Great Britain
Persons employed otherwise than by way of manual labour
whose remuneration exceeds £350 a year.
India
Persons employed in non-manual work at a rate exceeding
300 rupees a month.
— 94 —
Irish Free State
Persons employed otherwise than by way of manual labour
whose remuneration exceeds £250 a year.
Italy
Persons supervising the work of others (i.e. work performed,
whether permanently or temporarily, away from the home of the
worker either for fixed pay or at piece rates) if the fixed earnings
exceed 20 lire a day and are paid at least once a month.
Persons supervising or in charge of work in agricultural and
forestry undertakings whose average earnings, including payment
in kind, exceed 20 lire a day for 300 working days a year.
Fishermen who supervise the work of others during the fishing
operations, if their fixed earnings exceed 3,600 lire a year.
The officers of ships flying the Italian flag whose salary exceeds
6,000 lire a year.
Japan
Employees whose salary exceeds 1,200 yen a year (Health
Insurance Act of 1922).
New Zealand
Non-manual workers whose remuneration exceeds £400 a year.
Peru
Workers and employees whose earnings exceed 120 Peruvian
pounds a year.
South Africa
Persons whose remuneration exceeds £500 a year.
Spain
Persons who, without themselves performing work, prepare and
supervise the work of others, if their earnings exceed 15 pesetas
a day.
Persons employed in the offices and auxiliary departments of
factories or industrial undertakings whose salaries exceed 5,000 pesetas a year.
Artistes and administrative employees in the entertainment
industry whose salaries exceed 15 pesetas a day.
Sweden
Persons receiving from the employer remuneration exceeding
9,000 kronor a year.
— 95 —
PERIOD OF EMPLOYMENT (CASUAL EMPLOYMENT)
Several laws take into consideration not only the amount of
remuneration but aJso the period of employment.
In theory the principle of occupational risk should apply to all
persons engaged by an employer, irrespective of the period of their
employment, but the administrative difficulties met with in the
strict application of the principle appeared too considerable, and
led to the exclusion of workers employed intermittently or for an
extremely short period, especially if their work lay outside the
strict scope of the employer's business.
Under the theory accepted in the French law the period of
the contract of employment has no effect on the application of
the law, and the worker is entitled in the event of accident to the
compensation prescribed by the 1898 Act, even if he has been in
the service of an employer for a few hours only.
Similarly under the British law a person coming within the
definition of "workman" in the Act of 1906, as extended by the
Act of 1923, is entitled to compensation for an industrial accident,
however short the period of employment and however intermittent
the employment may be. But although the British law covers the
great bulk of casual labour, it excludes persons "whose employment is of casual nature, and who are employed otherwise than
for the purposes of the employer's trade or business". So far,
therefore, as casual labour is concerned the test, for the purpose
of the Act, is the nature of the work, i.e., whether or not it comes
within the scope of the employer's trade or business.
The French system has been adopted in severel other European
countries. Thus the Hungarian Act expressly includes persons
employed provisionally as assistants, or temporarily, in the undertakings covered.
In Italy, the Act of 31 January 1904, amended by the Acts of
17 November 1918 and 20 March 1921 (Section 2) applies to all
persons employed on work performed away from their homes,
whether permanently or temporarily. The Legislative Decree of
23 August 1917 (No. 1450) on compulsory insurance against accidents in agricultural work amended by the Act of 20 March 1921
and the Legislative Decree of 11 February 1923 states that permanent or casual workers of both sexes employed in undertakings
in agriculture or forestry are insured between the ages of 12 and
65 years as well as land owners, métayers, tenant farmers, their
wives and children, including illegitimate children.
— 96 —
In other States, on the contrary, the British principle has been
adopted, the accident compensation law excluding either all casual
workers or special classes of workers. Thus, the States of the
Australian Commonwealth exclude persons employed in casual
work not connected with the trade or business of the employer.
The same exception is contained in the laws of the Canadian
provinces (Alberta, British Columbia, Manitoba, New Brunswick,
Nova Scotia, Ontario, Saskatchewan, Yukon). Similar provisions
are to be found in the South African Act and the Indian Act.
In certain laws specific classes of seasonal workers are excluded.
Thus, in Austria and Czechoslovakia workers employed in the
erection of certain buildings in rural districts are excluded, provided that the work is executed by only the builder, the members
of his family, or other inhabitants of the same commune who are
not building workers by trade.
In Bulgaria certain classes of seasonal workers (mowers, reapers,
vineyard workers, woodcutters, diggers, etc.), employed temporarily
are not liable to insurance.
A similar measure was recently introduced in Soviet Russia.
By the terms of Section 175 of the Labour Code of 1922, the social
insurance system in Russia covers "all employed persons," but it
has since been limited in scope, particularly by the circular of
the Commissariat for Labour of 21 June 1923 (No 259/53), in
respect of undertakings employing paid workers performing seasonal or temporary work. The exemption applies to certain
classes of casual workers in the sugar, forestry, alcohol, and peat
industries.
In Sweden, persons engaged in casual work for a person who does
not ordinarily employ workers are not subject to the Compensation
Act. The provision therefore applies only if the worker is employed
by a person who does not employ other workers and if he is employed
only temporarily. The chief application of the provision is to
small agricultural undertakings.
The same consideration has prevailed in the Swiss law, which
provides (Section 23 of Order I) that employees and workers
engaged by a person, who on his own account has work performed
which is liable to insurance (Sections 13 to 17 of Order I) but not
of the nature of an undertaking, are not insured if it is probable
that less than five persons will be regularly employed on such
work during one month, or if the work requires less than 100 working days.
— 97 —
W O R K IN A PUBLIC OR PRIVATE
UNDERTAKING
The question whether the treatment of workers and employees
in public undertakings should be different from that of perso as
employed in private industry as far as accident compensation is
concerned has been variously settled in the laws in force. In the
majority of countries workers in public services are treated in the
same way as workers in private undertakings. It would be
inequitable not to apply the principle of occupational risk to the
persons employed in state, municipal or communal services,
especially since such services have grown so considerably, and have
in many cases made the state one of the most powerful of employers. If, however, the workers in public services are already
covered by a special system which is more favourable to those
concerned, they are excluded from the law applying to workers
and employees in private industry, so t h a t any duplication of
rights may be avoided.
Subject to this reservation, persons employed in public services
are very generally covered by the provisions for private industry.
Thus, in France the Act of 1898 applies to public officials whose
appointments have not been confirmed, as well as to employees
and workers in the public services.
In Finland, state employees (except persons holding public
appointments) are treated in the same way as workers.
Section 9 of the British Act of 1906 states that "The Act shall
apply to workmen employed by or under the Crown to whom this
Act would apply if the employer were a private person."
Under Section 3, subsection 3, of the Hungarian Act, persons
employed in state, municipal, communal, and institutional undertakings are liable to insurance, if such undertakings may be classified with the undertakings enumerated in Section 3 of the Act.
In Italy, insurance is compulsory under Section 18, subsection 1,
of the Consolidated Act of 31 January 1904, for workers employed
in the works, undertakings, or establishments directly managed
by the state, the provinces, or communes, or conceded or leased
out by them.
In the Netherlands, insurance is compulsory for persons employed
by a public body which engages them on work such that if they
were employed on similar work by a private person they would be
insured under Section 1 of the Act (Section 3).
The Uruguayan Act of 15 November 1920 on industrial accidents
specifies that the state, the provincial governments, and other
7
— 98 —
legal persons running public undertakings will be considered
employers if the persons they engage are required to perform work
covered by the Act (Section 4).
Similar provisions are to be found in several other accident
compensation laws.
In other countries there is no such provision for equality of
treatment, if the workers in question are already covered by a
special system which as a rule is more favourable.
Thus, in Germany insurance is not compulsory for public health
officials, members of the army, and the police force, nor for the
persons defined in Section 1 of the Act of 18 June 1901 on the relief
of officials in the event of accident, nor for officials employed in the
administrative offices of a Federal State, an association of communes, or a commune, with fixed salaries and with pension privileges,
nor for other officials of a Federal State, an association of communes,
or a commune, who are insured under Section 14 of the above
mentioned Act (Section 554).
Similarly, in Austria, persons employed in an undertaking of the
State, a commune, or a public body are not liable to insurance if in
the event of an accident they and their survivors are entitled to
a pension at least equal to that payable under the Act of 1887
(Sections 6 and 7).
Under the Brazilian Decree of 15 January 1919, workers employed
by the Federal Government, the states or the municipalities cannot
claim the compensation fixed in the Decree (Sections 7 and 8) if
they aie entitled to benefit from a mutual insurance fund, to superannuation, or a pension.
In Spain, the provisions of the Act of 1922 do not apply to
public officials (state, provincial, or municipal), whatever their
grade, if they benefit by special provisions (Section 11, subsection 2).
In France the Act of 1898 does not apply to workers, apprentices,
and labourers in naval workshops, and unregistered workers in
munitions factories, under the Ministry of War, who are entitled
in the event of accident to pensions defined by special legislation
and assistance organised by decrees and regulations. Further,
permanent public officials covered by the Act of 7 June 1853 are
not covered by the Act of 1898, and thus the duplication of rights
is avoided.
In Norway, insurance is not compulsory for persons employed
by the state, the principal state railways, and the municipalities,
provided that in the event of accident they and their families are
— 99 —
entitled to compensation equivalent to that payable under the Act
of 1915.
Besides these two systems, one of which treats workers and employees in public services precisely in the same way as those in
private industry and the other excludes them from the general
system of accident compensation, there is a third under which
certain classes of workers in public services may voluntarily insure
under the system for private industry.
The Bulgarian Act, for instance, contains provisions of this
kind. According to note III to Section 1 of the Act, workers in
state undertakings covered by the Pension Act for the staff of
institutions belonging to the State and local authorities (which
provides either for deductions from their salaries or contributions
paid for them by the state) may be brought under the Social
Insurance Act of 6 March 1924 if the compensation it provides
is more advantageous to them. In this case the payments made by
or for them into the State Pension Fund, plus interest, is transferred
to the Social Insurance Fund.
THE PLACE OF WORK
The various laws in defining the terms "worker" and "employee"
also take into account the place of work. It has already been
explained that the existence of a legal agreement between employer
and worker is not enough to entitle the latter to benefit by the
principle of occupational risk. The claim of a worker, employee,
or apprentice to compensation under the Act depends also on his
actual employment, whether in the undertaking or even outside
it. The place where his work is performed may influence the
administration of accident compensation legislation, since it is
considerably facilitated if the worker or employee works in the
undertaking under the supervision, direct or indirect, of the
employer. Moreover, it is often considered that the risk of accident
for workers employed at home is not sufficiently serious to justify
legislative intervention. Certain laws, such as those of Brazil, Cuba,
Ecuador, Italy, Salvador, Spain, Uruguay, cover only workers
employed away from home.
Other laws expressly exclude home workers. They appear to
reject the principle of occupational risk deduced from the Civil
Law doctrine of responsibility for articles in the care of a pei son,
in the case of accidents to workers employed at home where the
employer is unable to exercise supervision and take steps to reduce
the risk. The laws in the British group are the most important
— 100 —
in this respect. The British Act of 1906 defines a home worker or
"outworker" as "a person to whom articles or materials are given
out to be made up, cleaned, washed, altered, ornamented, finished,
or repaired, or adapted for sale in his own home or on other
premises not under the control or management of the person
who gave out the materials or articles". Outworkers are excluded
by the Acts of the States of the Australian Commonwealth, Canada,
South Africa, and India.
Home workers are not entitled to compensation in the following
countries: Argentina, Austria, Belgium, Chili, Czechoslovakia,
Esthonia, Finland, France, Germany, Japan, Latvia, Lithuania,
Norway, Poland, Roumania, Spain, Sweden, Switzerland,
Uruguay.
Although in the majority of countries home workers are left
out of the system of accident insurance, some modern laws include
them, such as the Bulgarian, Danish, Dutch, New Zealand, Portuguese, Russian and Serb-Croat-Slovene laws.
From the theoretical point of view, persons whose trade involves
continual travelling, such as commercial travellers, are in a similar
position to persons employed outside the factory. In France
commercial travellers are covered by the 1898 Act, if they are
employed by a single merchant or manufacturer. If they work for
several firms, they are considered as commission agents working
on their own account, or as partners.
Commercial travellers are expressly excluded in the laws of
several Canadian provinces: British Columbia (if they are not
exposed to the risks inherent in the work performed in the
industry), New Brunswick (with the same reservation), Nova
Scotia.
THE POSITION OF INDEPENDENT WORKERS
In some respects the problem of independent work is very
similar to that of home work. The question whether a person is
to be considered an independent contractor or a worker can be
settled only for each individual case. Thus an artisan performing
work for other persons is not deemed to be an independent contractor, if he does not assume the economic risks inherent in the
work nor receive the profits due to an independent employer.
In general, accident compensation laws apply only to workers
and employees, and persons in a similar position, such as apprentices — that is to say persons legally dependent on an employer
(manufacturer, head of an undertaking) with whom they have
— lOi —
entered into a contract of employment.The position of small
employers and artisans working at home is, however, often very
similar from the economic point of view to that of workers and
employees. The provisions of the general law naturally do not
afford them any protection against the risk of accident. The
principle of occupational risk, which implies the existence of an
employer, cannot be extended to persons who legally are not
dependent on the head of an undertaking, and consequently only
States in which the compensation law is at the same time an insurance law have been able, under certain conditions, to include
independent workers in their special legislation on industrial
accidents. Although the persons in question are not paid workers
properly so called, their means of subsistence are often so small
that they cannot cover the risks they run in carrying out their
work, and by insurance they may in the event of accident obtain
suitable compensation, which is as necessary to them as to workers
and employees.
The inclusion of independent workers may be compulsory or
voluntary. It is compulsory under the German law for the heads
of the following industrial undertakings:
(1) Shipping, if the stowage of the vessel is not more than 50
cubic metres (gross) and the vessel is not attached to a larger
vessel or propelled by steam or other mechanical power.
(2) Sea fishery, in which vessels are used not already liable to
accident insurance by the Federal Council (under Section 1, subsection 5, of the Act of 13 July 1887) as steam ships for deep sea
fishing or luggers for herring fishing.
(3) Fishery, as specified in section 1049 (fishery in waters
connected with the high seas, for circulation in these waters is not
considered maritime navigation, even though seagoing vessels
may enter them).
Similarly, in Denmark, insurance is compulsory for any person
carrying on business in fishing or small shipping on his own account
or jointly with another, if not less than three-fifths of the annual
income obtained by his personal exertions is derived from the
business (Section 66 c).
The Norwegian Act of 10 December 1920 on the accident insurance of fishermen covers fishermen, whalers, sealers, etc. (fangstmenn) who engage in sea fishing or catching whales, seals, etc.
In Italy, the Legislative Decree of 23 August 1917 on compulsory
insurance against accidents in agricultural work, amended by the
Act of 20 March 1920, states that insurance" against accidents in
— 102 —
agricultural work is compulsory not only for permanent or casual
workers, but also for landowners, métayers, tenant farmers, their
wives and children, including illegitimate children, who habitually
perform manual labour in their respective undertakings.
Thus, these laws cover not only workers who are partly paid,
partly independent, such as métayers, but also certain groups of
persons who are legally in an independent position, but who, like
paid workers, have a small income.
Under other laws insurance is only voluntary. In Germany, the
rules of the mutual trade associations may make insurance compulsory for the heads of undertakings and artisans working at home
who are engaged in an employment covered by the law (Section 548).
If the rules contain no such provision, the heads of undertakings
are entitled under the law to insure voluntarily (Section 550).
Voluntary insurance is also open to pilots in inland navigation
who work on their own account. The Act fixes no income limit
and pays no attention to the number of paid workers employed
by the heads of undertakings or pilots in inland navigation. For
the heads of agricultural undertakings insurance may similarly
be compulsory under the rules of the associations or else voluntary
(Sections 925 and 927).
In Austria and in Czechoslovakia, voluntary insurance is open
to employers whose undertakings are not liable, as well as to employers in undertakings for which insurance is compulsory (Sections V and VI of the Act of 20 July 1894).
In Bulgaria, voluntary insurance is open to artisans, traders,
farmers, and members of the liberal professions, if their income
does not exceed 50,000 leva a year (Section 1, subsection 2).
The Danish Act provides for voluntary insurance in industrial
and commercial undertakings, domestic service, and agricultural
undertakings, as well as for the wives of such employers if they
take a considerable part in the work, and for any employer who
employs no assistant liable to insurance, but only if his annual
income as declared for income tax purposes does not exceed 1,800
kroner in rural districts, 2,100 kroner in market towns, and 2,400
kroner in Copenhagen and Frederiksberg. In fishing and small
shipping, any person engaged in an occupation covered by Chapter
VIII of the Act, who makes no use of assistants liable to insurance,
may insure voluntarily, provided he is not himself liable to insurance
under the provisions of Section 66 c (Section 66 /). Such insurance
may be entered into in such a way as to cover also the wife of the
insured person if she takes a substantial share in the business. It
— 103 —
is interesting to note that the provisions for the voluntary insurance
of employers in fishing and- small shipping fix no income limit.
In Hungary, voluntary insurance is open to artisans working
on their own account without assistants.
In the Netherlands, it is open to all employers and to anyone
who, on his own account, carries on an occupation liable to insurance
without employing other persons for the purpose. In agriculture,
the Dutch Act provides for voluntary insurance for an employer
not belonging to an industrial organisation, his wife, children
living with him, and any person who on his own account carries
on an occupation liable to compulsory insurance without employing
other persons, together with his wife and children living with him.
Similarly the Swedish Act of 17 June 1916 on industrial accident
insurance, which excludes all independent workers, nevertheless
allows the voluntary insurance of fishermen.
— 104 —
COMPARATIVE TABLE OF THE PRINCIPAL CLASSES OF PERSONS
COUNTRY
Excepted workers in the industries
and undertakings covered
Home workers
Persons whose earnings exceed 3,000 piastres a year.
Persons employed in agricultural and forestry undertakings in which use is made of
mechanical power and who are not employed
in working or transporting the engines.
Excluded.
Non-manual workers whose remuneration
exceeds £500 a year.
Excluded
New South Wales
Persons whose remuneration exceeds £525
a year.
Excluded.
Queensland
Persons whose rate of remuneration exceeds
£10 a week.
Excluded.
South Australia
Persons whose remuneration exceeds £10
a week.
Excluded.
Persons whose remuneration
a week.
Excluded.
ARGENTINA
AUSTRALIA
Commonwealth
' Tasmania
exceeds £5
Victoria
Non-manual workers whose remuneration
exceeds £250 a year.
Excluded
Western Australia
Persons whose remuneration exceeds £400
a year.
Excluded.
AUSTRIA
Workers employed in agricultural and forestry undertakings in which use is made of
machinery forming part of the permanent
plant, who are not exposed to the risk of
accident by the machinery.
Non-manual workers other than works
officials (Betriebs beamte).
Excluded.
BELGIUM
Non-manual workers whose salary exceeds
7,300 francs a year.
Excluded.
BRAZIL
—
Excluded.
BULGARIA
—
CANADA
Alberta
—
Excluded.
—
Excluded.
Clerical workers not exposed to the risks
incident to the work performed.
Excluded.
British Columbia i
Manitoba 1
i Part I of the Act.
—
— 105 —
NOT COVERED BY WORKMEN'S COMPENSATION
LEGISLATION
Members
of the family of the
employer
Casual workers
Other workers
—
—
—
Excluded if they reside with
the employer.
Excluded.
—
Excluded if they reside with
the employer.
Excluded.
—
Excluded if they reside with
the employer.
Excluded.
—
Excluded if they reside with
the employer.
Excluded.
—
Excluded if they reside with
the employer.
Excluded.
—
Excluded if they reside with
the employer.
Excluded.
—
Excluded if they are in partnership with the employer.
—
—
—
—
—
The wife and relatives under
age.
Specified classes of seasonal
workers: mowers, reapers, vineyard workers, rose pickers,
woodcutters, and diggers.
—
Excluded.
Excluded.
Workers in itinerant trades.
Workers engaged in specific
employment on the railways
defined in the Act.
Excluded.
Excluded.
Travelling salesmen not exposed to the risks incident to
the nature of the work carried
on in the industry.
Excluded.
—
—
— 106 —
COMPARATIVE TABLE OF THE PRINCIPAL CLASSES OF PERSONS
Excepted workers in the industries and
undertakings covered
COUNTRY
CANADA (coni.)
New Brunswick
Nova Scotia
Excluded.
1
—
l
Excluded.
—
Ontario 1
Home workers
Excluded.
Quebec
Workmen whose remuneration
1,500 dollars a year.
exceeds
Excluded.
Saskatchewan
Non-manual workers whose remuneration
exceeds 2,000 dollars a year.
Excluded.
—
Excluded.
CHILE
—
Excluded.
CHINA
—
Excluded.
CUBA
Non-manual workers earning more than
3 gold pesos a day, whose contracts of employment are valid for less than 30 days.
Excluded.
CZECHOSLOVAKIA"
Workers employed in agricultural and forestry undertakings in which use is made of
machinery forming part of the permanent
plant, and who are not exposed to the risk of
accident by the machinery.
Non-manual workers other than works
officials (Betriebsbeamte).
Excluded.
ECUADOR
Persons employed in agricultural and forestry undertakings in which use is made of
an engine driven by other than human power,
or who are not exposed to risks in connection
with such engines or power.
Excluded.
ESTHONIA
—
Excluded.
Unpaid apprentices.
Persons managing and supervising the work
of others, if their earnings exceed 15,000
marks a year.
Excluded.
Yukon
DENMARK
FINLAND
—
FRANCE
Excluded.
GERMANY
Non-manual workers other
officials (Betriebsbeamte).
GREAT BRITAIN
Non-manual workers whose remuneration
exceeds £350 a year.
•
i Part I of the Act.
than works
Excluded .
(Hausarbeiter.)
Excluded.
— 107 TNOT COVERED BY WORKMEN'S COMPENSATION LEGISLATION
Members
of the family of the
employer
Casual workers
Excluded, if they have resided with the employer.
Excluded.
Excluded, if they reside with
the employer.
Excluded.
—
—
Excluded.
Excluded.
—
Other workers
Travelling salesmen not exposed to the risks incident to
the nature of the work performed in the industry; clerical
workers.
Travelling salesmen.
—
—
Excluded.
—
—
—
—
Excluded.
—
—
—
Excluded.
—
Excluded.
{COnt.)
—
—
Members of the family of
industrial employers if they
cannot be classed with the other
workers owing to the nature and
scope of their work, and if they
are not less than 10 years of age.
"
"
—
—
—
The wife and children under
age.
—
—
—
—
—
The wife or husband of the
employer.
—
—
Excluded if they reside with
the employer.
Included if employed for the
purposes of the employer's trade
and business.
Casual labour not so employed
(except when employed for the
purposes of any game or recreation and engaged or paid
through a club) is excluded.
!
Except for Slovakia and Sub-Carpathian Russia (former Hungarian territory).
— 108 —
COMPARATIVE TABLE OF THE PRINCIPAL CLASSES OF PERSONS
COUNTRY
Excepted workers in t h e industries
and undertakings covered
GREECE
—
HUNGARY
—
Home workers
Excluded.
—
INDIA
Non-manual workers whose
exceeds 300 rupees a m o n t h .
Unpaid apprentices.
remuneration
Excluded.
I R I S H F R E E STATE
N o n - m a n u a l workers whose
exceeds £250 a year.
remuneration
Excluded.
ITALY
Persons supervising t h e work of others, if
their earnings exceed 20 lire a d a y and t h e y
are paid at least once a m o n t h .
Persons supervising or in charge of work in
agricultural and forestry undertakings whose
average earnings, including p a y m e n t in kind,
exceed 20 lire a day for 300 working days a year.
Fishermen, who, even w i t h o u t actually
taking part in t h e work, supervise t h e work
of others, if their earnings exceed 3,600 lire
a year.
The officers of ships flying the Italian flag
whose salary exceeds 6,000 lire a year.
Agricultural workers under 12 years or over
65 years of age.
Excluded.
JAPAN
Employees whose salary exceeds 1,200 yen
a year i.
Excluded.
—
Excluded.
LITHUANIA 2
Non-manual workers whose earnings exceed
7,500 litas a year.
Excluded.
LUXEMBURG
Persons whose earnings exceed 3,750 francs
a year.
Excluded.
LATVIA
NETHERLANDS
—
—
Non-manual workers whose
exceeds £400 a year.
NORWAY
Non-manual workers not exposed to the risks incident to the work performed.
Excluded.
PANAMA
—
Excluded.
Persons whose earnings exceed 120 Peruvian
p o u n d s a year.
Excluded.
—
Excluded.
PERU
POLAND 3
PORTUGAL
ROUMANIAN
Unpaid apprentices.
—
RUSSIA
• Health Insurance Act of 1922.
a
Except for the Klaipeda (Meme!) Territory.
remuneration
—
NEW ZEALAND
—
Excluded.
— 109 —
NOT COVERED BY WORKMEN'S COMPENSATION LEGISLATION
Members
of the family of the
employer
Casual workers
—
•
—
—
—
Excluded.
—
—
(cont.)
Other workers
—
—
Excluded.
—
Excluded.
—
Excluded.
—
—
—
—
—
—
—
—
—
—
In agriculture children living with
their parents and employed by
them.
—
—
—
—
—
—
—
The wife or husband of the
employer.
—
Excluded.
—
—
—
—
—
—
—
—
—
—
—
—
—
Casual workers employed in
certain occupations in the sugar,
peat or alcohol industries, or
forestry, for which they use
their own horses.
» Former Russian territory* The former Kingdom and Bessarabia.
— HO —
COMPARATIVE TABLE OF THE PRINCIPAL CLASSES OF PERSONS
COUNTRY
Excepted workers in the industries and
undertakings covered
SALVADOR
—
S EBB-CROATSLOVENE KINGDOM
—
Home workers
Excluded.
—
Persons whose earnings exceed £500 a year.
Excluded.
SPAIN
Persons employed in ofllces and auxiliary
departments of factories or industrial undertakings whose salaries exceed 5,000 pesetas a
year.
Excluded.
SWEDEN
Persons whose earnings exceed 9,000 kronor
a year.
Excluded.
SOUTH AFRICA
Excluded.
SWITZERLAND
URUGUAY
Workers employed in undertakings in which
machinery is used, who are not exposed to
the risk of accident from the machinery.
Excluded.
— Ill —
NOT C O V E R E D
BY
WORKMEN'S
COMPENSATION
LEGISLATION
(concluded)
Members
of the family of the
employer
Casual workers
Other workers
—
—
—
—
—
—
—
Excluded.
Native labour.
—
—
Artistes and administrative
employees in the entertainment
industry whose salaries exceed
15 pesetas a day.
The children or adopted children or parents or adoptive
parentsliving with the employer.
The wife or husband of the
employer.
Persons casually employed
by a person who otherwise employs no workers.
Children under 12 years of
age.
The wife or husband, or the
relatives living with the employer, if they cannot be deemed
workers or employees of the
undertaking.
Persons employed in work
which is not in the nature of an
undertaking, unless not less
than Ave persons are regularly
employed for a month, or the
work requires not less than 100
working days.
—
—
—
PART II
RISK COVERED
INTRODUCTION
The principle of occupational risk underlying workmen's compensation essentially means that the loss of the economic value of
labour as a productive agent should be transferred to the industry.
Theoretically, this principle is applicable to any personal disablement which is due, or incident, to industrial work, without
distinction as to its causes or consequences. The essential
criterion for compensation is the connection between disablement
and employment, and not the nature of the injury itself.
The legislation derived from the principle of occupational risk
has, however, made a more or less rigid discrimination between
two classes of occupational injuries, viz. "injuries by accident" and
"injuries by disease".
The first workmen's compensation laws covered industrial accident risk only, and excluded the risk of occupational disease, mainly
hecause the establishment of the proof of the occupational origin
of diseases was considered, if not impossible, at least extremely
•difficult. To-day, it is admitted that the principle of occupational
risk covers occupational diseases as well as industrial accidents,
and the scope of risks covered by the compensation legislation is,
in an increasing number of countries, being gradually extended
by means of more and more comprehensive schedules of occupational diseases.
Since, however, the problem of the risk of occupational disease
forms the subject of a special report 1 , the following discussion
will be confined to an analysis of the legal definition of industrial
.accident risk.
* *
As soon as the legal theory of occupational risk was established
and accepted, the problem of an exact and comprehensive definition
•of the industrial accident risk arose. The question involved was
not a simple one. As a matter of fact, it was endeavoured to isolate
from the countless hazards to which the workmen are exposed a
1
See INTERNATIONAL
LABOUR OFFICE : Compensation
for Occupational
•Diseases. Geneva, 1925.
8
— 114 —
definite class of injuries in general, and a definite class of occupational risks in particular. Not all kinds of injuries were intended
to be covered, but only injuries by accidental events; not all accidents, but only those due to risks inherent in, or incident to, the
industrial work itself; and even not all industrial accidents, but only
those for which the employer or the industry as a whole could be
held responsible, a consideration that amounted to the survival of
the question of fault either of the workman, or of the employer, or
of third party, as a part of the definition of the compensable risk.
The constitutive elements of the definition of the industrial accident
risk to be examined are thus three, viz. (1) the notion of accident,
(2) the notion of industrial accident, and (3) the notion of fault
as far as it has subsisted in workmen's compensation and industrial accident insurance legislation.
The comparative analysis of the three fundamental elements of
the legal conception of industrial accident risk is an exceedingly
difficult task. The legal texts by themselves are very meagre and
far from explicit. We obtain from them hardly any idea of the legal
notion of accident, a vague definition of industrial accident, and,
in the case of exceptions on account of personal responsibility, the
relative importance of the various degrees of fault remains uncertain.
The method therefore adopted in the following pages consists of
an examination of the basic legal texts in the light of jurisprudence
or case-law. It would, of course, be an impossible task to examine
and compare the case-law of more than a few of the hundred legislations concerning workmen's compensation. Attention is mainly
confined to the case-law of three leading countries, namely, France,
Germany and Great Britain1, which countries have in fact
influenced the jurisprudence of a number of other countries.
The table appended to the present chapter gives the relevant
legal texts — usually in an abbreviated form — concerning the
classes of the industrial accident risk covered by, and excluded
from, compensation and industrial accident insurance legislation
in the several countries considered in the present report.
1
The commentaries used are the following:
For France: LOUBAT, Traité sur le risque professionnel. Third ed. Paris, 1906.
— ADRIEN SACHET, Traité théorique et pratique de la législation sur les accidents
du travail et les maladies professionnelles. Sixth ed., Vols. I and II. Paris, 1921.
For Germany: R. VAN DER BORGHT, Betriebsunfall. (In "Versicherungslexikon ", edited by A. MANES, Berlin, 1909.) — C. KAUFFMANN, Handbuch der Unfallmedizin. Vol. I. Fourth ed., Stuttgart, 1919. — W. RABELING,
Kommentar zur Reichsversicherungsordnung. Drittes Buch : Unfallversicherung.
Fourth ed. Heymann, Berlin, 1922.
For Great Britain: Judge RUEGG and H. P. STANES, The Workmen's Compensation Act, 1906. Ninth ed. London, 1922. — W. ADDINGTON WILLIS,.
The Workmen's Compensation Act, 1906. Nineteenth ed. London, 1920.
CHAPTER I
NOTION OF ACCIDENT
§ 1. — General Definitions of Accident
Etymologically, an accident means simply an unusual event or
an unexpected occurrence. This is the meaning of the word
"accident" in common language, and this meaning has served as
a guide in cases under the common law. Before long, however,
this proved inadequate for the purposes of the workmen's compensation legislation. Theoretically, the notion of accident, as
specifically applied to human persons, became more complicated
than when applied to inanimate things. In practice, again, it
was found that beneficiaries of the law had a natural tendency
to extend the word "accident" to events and injuries which logically
could not be included in this notion. Hence the necessity for
a more exact definition of what is meant by an accident.
As a rule the laws themselves do not define the notion of
accident. There are however a few Acts which aim at giving a
legal definition of the word; thus, the Brazilian Decree of 1919
defines an accident as a "sudden,, violent, external and not wilfully caused occurrence. .. . producing bodily injuries or functional
disturbances". Other laws are less explicit and mention only
certain characteristics which an event must show if it is to be
considered as an accident. According to some laws the accident
only means a "violent occurrence" (e.g. Greece, Italy), according
to some others, a "sudden injury" (e.g. Bulgaria), while â number
of other laws expressly stipulate that an accident means an event
resulting in personal or bodily injury involving death or incapacity
for work. All these legal definitions, however, are more or less
imperfect.
In most countries the definition of accident has been left to the
competence of the law courts or for legal interpretation. Students
of law have summarised such practical experience in vai ious different
definitions. An old and well-known definition is that given by
a French expert, Mr. Marestaing, some thirty-five years ago as the
— 116 —
result of a comparative study of the definitions of an accident
in various countries: according to him the accident means "an
injury to the human body due to the sudden and violent action
of an external cause." l This definition was accepted in substance
i>y the jurisprudence of France and many other countries, and the
legal definition of Brazil given above is theoretically in accordance
with it. In his commentary, however, on more recent French jurisprudence, Mr. Sachet does not consider the definition fully adequate,
and offers another, according to which an accident is "an abnormal
event, in general sudden, or at least of short and limited duration,
which impairs the integrity or the health of the human body."
In Germany, the Federal Insurance Office has in the course of
its case-law formulated several definitions of the notion of accident.
The earlier definitions imply that the accident must be "an event
which is injurious to the integrity of the human body and which
occurs suddenly, being clearly limited by a beginning and an end."
Later, the characteristic of suddenness was modified, and replaced
by the definition "an event occurring within a relatively short
space of time".
In Great Britain, too, the definition of accident has given rise
to various interpretations. The risk covered is called "injury by
accident," and the meaning of this expression has been considerably
modified in the course of time. In an early leading decision upon
the question, it was stated that the word accident denoted "an
unlooked-for mishap or an untoward event which is not expected
or designed." According to this definition the event must be caused
by some specific, unexpected, unintended act in order to be considered as an accident. Later, the definition was extended and
recent decisions have, in practice, worked closer to the opinion that
"if a worker in the reasonable performance of his duties sustains
a physiological injury as a result of the work he is engaged in . . .
this is an accidental injury in the sense of the Statute," subject,
however, to two limitations, namely that the injury is not one
that has been gradually acquired, and that the injury was not
intentionally self-inflicted; the causes of accident (apart, of course,
from the employment) are therefore considered as wholly immaterial
(Willis).
It will be seen from the above that "accident" was originally
defined by the aid of several characteristics, the most important
1
MARESTAING : Définition des accidents du travail dans les divers pays (Congrès
international des accidents du travail, Paris 1889, t. I, Rapports, p. 3).
— 117 —
of which are fortuity, suddenness, violence, externality and bodily
injury. In all countries, however, it has been found that the
interpretation of the notion of accident thus given was too narrow.
On the one hand, as has been justly pointed out, the progress of
medical science has necessitated, and will continue to necessitate,
considerable modifications in the notion of accident, and on the
other hand, the interests of the workers and considerations of
equity have induced the courts or administrative bodies to take
an increasingly liberal view of the definition of accident.
On account, however, of this tendency to extend the definition
of accident, this notion has become more and more confused, and
it is therefore necessary to examine more closely the elements of
the "accident."
There are two different conceptions of the substance of personal
accident. According to one, an "accident" means an event which
results in an injury; while according to the other, an "accident"
means the bodily injury itself, without taking into account the
cause of the injury. Suppose, for instance, that a tile falls from
a roof and injures a worker: according to the first concept, the
accident is the fall of the tile, and the injury to the worker is only
a consequence of it; while according to the second concept, the
injury constitutes the accident. Evidently both these concepts are
insufficient. The former interpretation may even lead to absurdity ;
in ordinary language it cannot be said that the fall of an object
constitutes an accident — it can rather be said that the fall could
have occasioned an accident, provided that there was someone
who might have been hurt by the falling object. On the other
hand, the injury alone is evidently not an accident, since the
scope of the "injury" is wider than that of the notion of "accident".
It is clear, then, that the notion of accident unites in one expression two concepts, namely both the cause and the effect of the
hazard or unexpected e\ent. The material cause of the accident
cannot be separated from its injurious effect on the human body,
any more than the injury can be isolated from its cause. While,
however, the notion of accident is the fusion of these two concepts,
it will be necessary to analyse their logical characteristics separately.
§ 2. — Accident Considered in its Cause
In order to be considered as an accident an event must in principle be produced by a cause fulfilling the following four conditions :
It must be unexpected and external, and it must act suddenly
and violently.
— 118 —
(1) In ordinary language the notion of accident always contains
the idea of hazard, i.e. of something unexpected and fortuitous.
It does not follow, however, that the cause of the accident must
always be due to hazard.
When an event is perfectly abnormal and inevitable, then there
is "absolute" or "objective hazard", and such an event must in all
cases be classified as an accident. It was the very necessity of
taking such events into account that gave rise to the principle
of occupational risk. But on the other hand, such fortuitous
events, which involve the absolute hazard, are not the sole source
of occupational risk, as understood in modern law and jurisprudence. If absolute hazard be taken as a necessary characteristic
of accident, then only abnormal events which are disproportionate
to the forces of the person concerned should be considered as
accidents, and all events happening while doing ordinary work
in the ordinary way, even though the work was more than usually
arduous, would be excluded from the notion of accident. The
desire to cover the latter risks also has resulted in the deletion of
the characteristic of absolute hazard from most definitions of
accident.
The unexpected and fortuitous character which renders an event
an accident may also arise out of " relative " or "subjective hazard" '.
But it is to be noted that this consideration does not apply to the
event itself, but only to the consequences of it: there may, logically,
be an accident even in the case of a worker consciously performing
the act which produces the accident, provided that he cannot
reasonably be expected to have desired or foreseen the consequences of that act. The characteristic of relative hazard will
therefore be dealt with later.
When, then, it is said that the event must be fortuitous or due
to hazard in order to be an accident, such a statement is true only
to a limited extent. . The idea is often preserved in the definition
of accident in order to provide for a distinction between accidents
and diseases, which are considered "normal" or "usual" risks.
(2) More important than "fortuity", is the condition that the
event must be produced by an external cause in order to be an
accident. Externality implies that the cause of the event must
have no connection with the organic constitution of the human
body, while the causes of a disease lie in the organism itself. By
cause, again, is understood the immediate mechanical cause of
the event and not any remote cause, lack of foresight or insight,
back to which the accident could eventually be traced. The
— 119 —
characteristic of externality cannot, however, be limited to the
purely physical factors. Certain movements of the human body
itself, which are external only in the relative sense of the word,
come under the scope of an accident. To this category belong
such cases as strain and over-exertion causing injuries which may
be considered as either accidents or diseases, according to the
presence or absence of other characteristics. According to Dr
Kaufmann, who has examined the German, Austrian and Swiss
jurisprudence in the matter of accident, "heavy strain, which
may be defined as a particular and sudden event, is to be considered
as equivalent to an accident." A further extension of the notion
of accident beyond the limits of externality appears in the treatment of cases of pre-existing sickness or injury. If the worker
has had a previous disposition to a disease and if such disposition
is aggravated or accelerated by an accident, the cause of the injury
is not purely external. Nevertheless, the case-law in most countries
considers such a case as an accident, provided that the external
cause contributed to an essential degree to the outbreak of the
injury.
(3) The most common criterion of the notion of accident is
suddenness. This characteristic evidently refers to the cause and
not to the injury. A sudden attack of disease which has developed gradually cannot be characterised as an accident, while a
disease caused by a sudden event may well be so qualified. If,
therefore, there exists a connection between the event and the
resulting injury, the beginning and end of which can be determined,
it is indifferent whether the injury appears immediately after the
event, or only later.
Suddenness is the opposite of slowness and progressivity, but
the difference between these opposites is only relative. For
instance, can an event be qualified as sudden if it exists during
a few hours — the ordinary time for the development of sunstroke ?
Certain definitions of suddenness, e.g. that given by the German
Federal Insurance Office, answer this question in the affirmative:
the fact that an event takes place within a determinable "relatively
short space of time" is considered sufficient to qualify it as sudden.
In practice, such "relatively short space of time" means two or three
hours or, at the maximum, a shift of work. Theoretically, it may
be argued that this definition may admit as an accident the aggregate
of successive injurious effects; but when the injury is only produced
by an accumulation of effects, it cannot logically be considered
as an accident. In practice, however, the wide interpretation
— 120 —
of the term has been increasingly accepted in most countries, a
tendency fully justified by the principle of the occupational risk.
A good instance of this extension of the notion of accident beyond
its theoretical limits is given by the Danish Accident Insurance
Act, as modified in 1920, which specifically includes "injurious
effects lasting at most some few days, which are due to the work
or to the conditions under which it is carried on, and which result
in a reduction of earning capacity or in death." According to
this definition, claims for compensation on account of the pressure
of tools or machinery, particular movements in work, exposure
to bad weather, gas, excessive heat and cold, etc. are admissible,
provided that they do not last more than a few days *.
The characteristic of suddenness has thus been interpreted in an
increasingly liberal manner, and tbe main point is merely the particularity of time. But even in this extended meaning, this characteristic, nevertheless, remains the most important distinction
between accident and disease.
(4) The last characteristic of the accident, considered in relation
to its cause, is violence. The action of the unusual and external
cause must be not only sudden but also violent. The human
body offers a resistance against injurious effects, and therefore
a sudden event must have a certain degree of force in order to
produce an injury. This implies that the characteristic of violence
refers only to the human body; it is by no means necessary that
the event must be so violent as to disturb the regular work of the
establishment.
But even this characteristic has been found too rigid for the
modern concept of accident, and this to a greater extent than in
the case of the other characteristics. The fact is that in many
industries accidents may occur without violence, for instance, in
the chemical industry where injuries can be produced by the
absorption of toxic substances or injurious vapours, etc. Thus,
in many cases the rigid application of the condition of violence
would amount to the exclusion from the sphere of compensation
of a number of risks which are as inherent in the work as any
accident properly so-called. While many definitions still retain
the characteristic of violence, it may be said that it has generally
been left out. Besides, the deletion of the characteristic of violence
from the notion of accident is more than balanced by the definition
of the accident as industrial.
1
It is to be noted that this provision does not cover occupational diseases
— 121 —
§ 3. — Accident Considered in its Effect
An accident is a special kind of hazard, i.e. an injurious hazard
from the point of view of its effects upon the integrity of the human
body. The event, however unexpected, external, sudden, or violent,
is not an accident unless it results in a personal or bodily injury.
(1) As has been mentioned above, the injury must reveal a certain
degree of "relative" or "subjective hazard". It is, however,
difficult to determine exactly what should be understood by this
term. To require that the iniurv must not have been designed
amounts only to the exclusion of self-inflicted injuries. On the
other hand, to say that the injury must not have been foreseen
may lead — if rigidly applied •— to the exclusion of all accidents
due to the worker's misconduct and negligence, i.e. it would
involve the question of fault which the principle of occupational
risk tends to leave aside. The question of relative hazard in an
injury by accident is thus exceedingly elastic and varies according
to the individual qualifications of the worker. Thus, in Great
Britain the application of the word "fortuitous" to the term
"injury by accident" has been criticised by the House of Lords
as being "either superflous or misleading, and not warranted by
anything in the Statutes". It is, however, held that the personal
injury must be more or less unexpected and unintended.
(2) On the contrary, the question whether the injury was external
or internal is wholly immaterial to the notion of accident. In fact,
the bodily injury is interpreted in a very wide sense, and includes any
injury to the human organism. The Argentine Act of 1915 puts this
very clearly in defining as accident "any occurrence... that results
in bodily injury, direct or indirect, apparent or non-apparent,
superficial or profound". Although other laws do not define injury
by accident so precisely, it appears from case-law that similar
principles are everywhere followed. Nevertheless, injuries may be
classified in different groups according to their traumatic character.
There are first the surgical cases, such as wounds, fractures and
other tangible injuries, which may alwaj'S be taken as injuries by
accident. Another group is formed by the medical cases, in respect
of which it is more difficult to determine whether or not they
are accidental injuries. Hernia capable of being described as
traumatism tends to be more and more generally covered. Diseases
like cancer, tuberculosis, pneumonia, diabetes, etc. may be imputable to accident, but this cannot be presumed; their traumatic
— 122 —
character must be proved, or at least there must be sufficient
probability that they have an accidental origin.
(3) Similarly, the injury need not have been sudden; it does not
matter whether it appeared immediately after the accident or not.
It is enough that it is consequent upon the accident. If the worker
escapes from an accident apparently without hurt, but later suffers
from an internal injury which is related to the accident, this is
considered as injury by accident.
Moreover, the injury may be only indirectly consequent upon
the accident and yet come under the risk covered by accident
compensation. The best example of this is to be found in injuries
due to shock. It was formerly open to question whether it was
actually sufficient that the injury was caused only by shock or
fright on account of an accident, but at present it is generally
admitted that, in so far as such shock causes a physiological
injury — be it only mental — this is a' personal injury by
accident. Thus even suicide may be an injury by accident,
inasmuch as it is consequent upon a mental state due to shock
received on account of accident. As Mr. Sachet puts it in his Treatise
on the French legislation, "Shock is an injury to brain, and is
traumatic no less than muscular injury or a fracture of a bone. It is
immaterial whether the injury was caused by hurt of a solid object
or by vibrations which as yet escape scientific analysis."
§ 4. — Distinction between Accident and Disease
It will be clear from the above- brief analysis that the evolution
of the concept of occupational risk shows a distinct tendency
towards an extension of the notion of accident.
There is, however, an irreducible limit to this extension, i.e. the
notion of disease. It has clearly been the object of compensation
legislation to distinguish between accident and disease. As has
been mentioned above, the principle of occupational risk really
covers also such diseases as are inherent in the work and have an
occupational origin, but, even when this is admitted, a distinction is
generally made in practice between these two groups of risks.
Nevertheless, it cannot be said that the distinction between
accident and disease is perfectly clear. The original contention
that accident and disease were contradictory terms has more and
more tended to disappear, and is being replaced by another concept
according to which the risks of labour form a long series in which
the different injuries merge into one another by insensible and
mutable gradations.
— 123 —
(1) The contracting of a disease is a personal and bodily injury as
well as an accident. The difference between accident and disease is
to be found only in the cause producing the injury. In this connection
the nature of the injury itself, whether surgical and tangible, or
medical and hidden, does not matter. Poisoning, infection, tuberculosis or pneumonia — no matter what common disease — may
be an injury by accident provided it can be attributed to accidental
circumstances. This means that injuries produced gradually or
by an accumulation of effects, or forces acting during long periods,
or by numerous repetitions, etc., cannot be regarded as injuries
by accident, but are in general to be qualified as diseases. But all
the distinctive characteristics available for forming a judgment are
very elastic. The notion of accident implies something fortuitous,
a hazard, while the notion of disease covers all the ordinary injuries
— yet an event happening in the ordinary work performed in the
ordinary way, and perfectly foreseen by the injured worker, may come
under the head of "accident". The cause of an accident must be
external, and that of disease internal — yet injuries resulting from
strain and similar conditions are sometimes compensated as accidents. Again, the cause of an accident must act suddenly, while the
disease arises gradually — yet the notion of suddenness is so relative
that certain injuries or ill effects lasting from a few hours to a
few days have come to be considered as accidents, and even the
particularity of time cannot always be taken asfinalin deciding about
an accident, since there are cases (e.g. blood poisoning by abrasion)
in which the serious effects do not develop for two or three days.
Further, the cause of an accident must act violently, while the
disease may develop smoothly — yet poisoning by toxic substances
acting in a non-mechanical and smooth way is in certain circumstances regarded as an accident. Finally, injury by accident
must be due to a material event, while disease is not characterised
by any "event" — and yet nervous shocks only indirectly connected
with the event may be considered as accidents.
(2) Moreover, even when the accidental circumstances can be determined, it is not necessary, in order to prove an accidental injury,
that the sole cause of the injury lies in these circumstances. The
fact that the man was suffering from bodily injury which made him
more susceptible to injury as the result of even a moderate strain,
or the pre-existing diseased condition of the worker, does not, as a
rule, exclude the assumption of an accident 1 . It is enough that the
1
There are, however, countries which expressly exclude accidents caused
by a pre-existing diseased condition of the workman, if such condition was
unknown to the employer (South Africa, New Zealand).
— 124 —
accident was a contributory cause of the injury or aggravated its
effects. If, for example, a man injures himself in a machine in
consequence of an attack of general weakness or a disease, the
resulting injury is considered as injury by accident because the
outbreak of the injury was accidental. It is beyond doubt that cases
of trauma or tuberculosis due to accidental injuries, or blood poisoning consequent upon a wound received on account of an accident,
or an infection such as anthrax resulting from a determined occurrence, or infection of a non-accidental wound by introduction of
a poison, may be considered as cases of accident.
(3) The question of the relation between accident and disease
becomes still more complicated on account of the existence of a
number of "health risks" which refer to something between accident
and disease, i.e. which may be imputable sometimes to accident
and sometimes to disease. Such risks include (a) employment of
toxic and similar substances; (b) unhealthy conditions of factories
(compressed air, damp, dust, extreme heat, etc.); (c) unfavourable
climatic conditions (excessive light, excessive cold, and other
abnormalities of temperature); (d) excessive strain of certain
organs. The definition of accident tends to be widened to include
more and more of these injuries, and in some countries has been
so formulated as to include also those injuries which are attributable
and traceable to any particular occurrence during work.
A typical case of this sort is provided by injuries from excessive
cold and excessive heat, such as frostbite and sunstroke. Frostbite,
for instance, is considered as an accident when the effect of cold is
of short duration and intensity, when it appears as an acute effect
within a short period, and must be imputable to a determined work
performed uninterruptedly. Frostbite due to injurious effects
lasting during longer time, as well as chill from becoming overhot
after work, do not, as a rule, constitute an accident in the sense of
the law *.
Another and a very difficult case of injury is that of hernia,
which often presents at once the symptoms of traumatism and
those of a morbid condition of the human organism. When there
exists a traumatism likely to give rise to hernia, and the traumatism
and the hernia stand related as cause and effect, such injury is to
be considered as an accident. Inversely, when hernia is found to
1
The above-mentioned extension of the notion of accident to " injurious
effects" in the Danish Act is an exception to this rule.
— 125 —
be due solely to the progressive and cumulative alteration of the
human body, it is generally considered as a disease 1.
Similarly, cases of poisoning may be considered sometimes as
accidents, sometimes as diseases. The test is whether the origin
of poisoning is acute or chronic; in the former case the poisoning
is equivalent to an accident, and in the latter case to a disease.
When a poisoning exercises a continuous influence upon the health
of the worker without injury resulting therefrom, and its effect then
increases on a given date, and results in a bodily injury, it is in
most cases considered as an accident 2 .
Thus the list could be prolonged almost indefinitely.
These
undefined cases have given rise to much litigation and extensive
case-law, with which it is neither possible nor necessary to deal
in this place.
1
Industrial incapacity resulting from accidental hernia is specifically
covered in the Spanish and Portuguese Acts as well as in some of the laws of
the2 United States.
Poisoning by toxic substances is specifically covered by the Acts of Portugal and Salvador.
CHAPTER II
NOTION OF INDUSTRIAL ACCIDENT
§ 1. — General Definitions of Industrial Accident
The accidents must be in some way or other connected with the
employment, occupation, or work, in order to be compensated
under the law. Hence the notion of "industrial accident" 1.
Practically all workmen's compensation and accident insurance
laws define the industrial accident by a few words which serve
as a basis for the case-law. These general definitions of the industrial accident may be classified in three standard types.
(1) The earliest law, the Industrial Accident Insurance Act of
Germany, defines the risk covered by the law as "accidents in establishments or activities subject to the Act (industrial accidents) 2 ".
According to the interpretation given by the Federal Insurance
Office to this definition, the "industrial accident" means an accident
standing in relation to the establishment insured from the points
of view of time, place, and cause. Although the accident as a
rule must occur at the place of work in order to be an industrial
accident, this is not absolutely necessary, since an accident
occurring in an establishment other than t h a t of the employer
of the insured worker is to be compensated by the insurance
association of the employer who has engaged the worker upon
t h a t work and paid his wages. Similarly the relation from the
point of view of time between accident and work may be lacking,
even if other relations exist. The decisive characteristic of the
industrial accident is, however, that the employment must stand
related to the accident as cause and effect. This characteristic
is always necessary, and is also sufficient. On the other hand, this
1
The expression "industrial accident" is that used in English. In the
English translations of the laws of other countries the term "occupational
accident" frequently occurs. In fact, the terms used in the different languages
differ considerably, e.g. in the French law the expression is "work accident,"
or "accident in work" (accident du travail), and in German law, "accident in
establishment" (Betriebsunfall). In the present study the expression "industrial accident" is used to denote all these various definitions.
2
"Unfälle bei Betrieben oder Tätigkeiten, die... der Versicherung unterliegen
(Betriebsunfälle)" — an expression which can hardly be exactly translated.
— 127 —
relation of cause and effect need not necessarily be direct, nor
need the establishment be the only cause of the accident (van der
Borght).
The German expression has been more or less followed in a
number of other countries, principally in Central and Northern
Europe. The Austrian, Hungarian and Norwegian Acts define the
risk covered in terms identical to those used in the German Code,
and this definition is in force also in Czechoslovakia and Poland.
The meaning of the expression "accident in work" used in the
Swedish law (olycksfall i arbete) and in the Finnish law (työssä
sattunut tapaturma) as well as in the Italian Act (infortuni sul
lavoro) has the same bearing. The Danish law, while following
on the same lines, specifies the occupational accident (Beskaeftigelsesulykke) covered as "accident in occupations contemplated
in the Act or arising from conditions under which they are
carried on".
Considerably wider is the definition of the risk covered in the
Netherlands: "accident in connection with the employment"
(ongevallen in verband met dienstbetrekking
overkomen) ; according
to this formula, the causal relation between the accident and work
is not always required for compensation. A similar extended
definition has been adopted in the laws of two Central European
States in that they define the risk covered as "accidents in the
course of work" (Serb-Croat-Slovene Kingdom, and Switzerland).
(2) Another type of definitions is formed by those acts according
to which the risk covered is "accident occurring in consequence
of or during the work". This expression was originally used in
French law 1 , and has been interpreted by the French jurisprudence
as implying accidents occurring at the place and during the course
of the work. The coincidence of these two circumstances is considered at once a necessary and a sufficient condition for compensation. The work is the "fact" of the accident, that is to say, its
direct, immediate and tangible cause when the accident is due to
the appliances or motive forces of the undertaking. The work
is the "occasion", i.e. the indirect, remote or casual cause of the
accident in all other cases, because the worker had to come to the
working place where he met with the accident on account of the
work (Sachet).
Similar definitions are given in the laws of most of the Latin
countries in Europe and South America, as well as in the laws of
1
"Accident par le fait ou à l'occasion du travail" — an expression which
it is difficult to translate exactly.
— 128 —
Luxemburg, Bulgaria, Greece, and in the former Russian laws now
in force in Esthonia, Latvia and Lithuania. The actual words
employed, however, vary somewhat. Whether the expression is
"during the work" or "in the course of work" on the one hand,
and "in consequence of work", "in connection with work," "arising
out of work," "by reason of work," etc., on the other, these conditions occur in all the above mentioned laws as alternatives
rendering an accident a compensable industrial accident.
(3) The third standard definition of industrial accident is that given
in the Workmen's Compensation Act of Great Britain, namely
accident "arising out of and in the course of the employment". The
expression has been defined by a number of legal decisions as
follows. "Arising out of the employment" means arising out of the
work which a man is employed to do, and out of what is incidental
to it — in other words, out of his service. If by reason of the nature,
conditions, obligations, or incidents of the employment, the workman is brought within the zone of a special danger, and so injured
or killed, the words of the Statute are held to apply. "In the course
of the employment" means in the course of the work which a man
is employed to do, and what is incidental to it, in other words in the
course of his service; it does not mean during the period of the
engagement. These two expressions overlap each other to a great
extent, because the question whether the accident arises out of the
employment may be dependent on the question whether the course
of the employment is still continuing, and the question whether
the accident occurred in the course of the employment may depend
on the question whether the event causing the injury was a risk
arising out of the employment (Willis).
The words employed in the British law have been directly borrowed by the laws of most British countries, namely Australia
and its States (except Queensland), the Canadian provinces (except
Quebec), India, Newfoundland, New Zealand, and South Africa.
It is also used in Japan and in most of the compensation laws of
the United States. It is to be noted, however, that some of the
Canadian provinces have in their Statutes given a wider interpretation of this definition by stipulating that "where the accident arose
out of the employment, unless the contrary is shown, it shall be
presumed that it occurred in the course of the employment, and
where the accident occurred in the course of the employment, unless
the contrary is shown, it shall be presumed that it arose out of the
employment." (British Columbia, Manitoba, Nova Scotia, Ontario,
and Yukon.)
— 129 —
It will be seen that all the legal definitions of the industrial
accident are not quite precise. Their interpretation has given rise
to much litigation, and, in fact, decades of case-law have modified
them to a great extent.
If we take as a criterion the threefold connection between the
accident and work, as borne out by the various definitions, viz.
the connection from the standpoint of time, place, and cause, and
apply it to the standard definitions given above, the importance
of the case-law will be apparent. The German formula "accidents
in establishments" seems rather vague ; case law has specified that
the local connection may be lacking, as may the connection from
the point of view of time, while the causal connection is the decisive
element. The French formula, again, expressly implies that an
accident is considered an industrial one if directly caused by the
work ( "in consequence of work") or if connected with the work in
other less definite way: the fundamental principle of the jurisprudence is that both conditions are fulfilled by the concurrence
of the temporal and the local relation between accident and work,
which alone establishes the presumption of a causal connection
required by the legal formula. This presumption in the favour of
the injured worker may, however, be abrogated by the employer
who can prove the contrary. Finally, the British definition requires
the concurrence of the connection between accident and work
from the standpoint of time ("in the course of the employment")
and from the standpoint of cause and effect ("arising out of the
employment"), and leaves out the local connection.
It is, then, evident, that the various legal definitions cannot be
understood without the relevant case-law, which has created quite
new, and even contradictory, principles and rules. Moreover, the
•criteria themselves as distinguished in legislation and in case-law
are only relative, and overlap one another in many ways. There
may be accidents which do not happen during the employment or
work, or which do not occur at the place of work, or which do not
arise out of the employment, or which may lack even two of these
•characteristics, and which yet are covered by the notion of. "industrial accident".
The analysis of this notion will no doubt be facilitated if we
adopt as the basic criterion for judging the connection between
accident and work, the conception of the employer's obligations
•and the worker's rights under the laboar agreement, which regulates
the -whole of labour legislation, of which the compensation law is
a part. The labour agreement confers upon the employer a certain
9
— 130 —
degree of authority over the employee, and imposes at the same
time a corresponding dependence upon the worker, who, in return,
has a legal guarantee against all accidents due to risks created or
aggravated by the establishment or by the work.
Starting from this point, it is proposed that the three kinds of
relations — temporal, local and causal — between the accident
and the work should be considered in turn. In each case, the general
rule is first outlined, and there follows an examination of some typical cases of the numerous exemptions from, or extensions of, the
rule. The relevant legal prescriptions are inserted in the general
discussion.
§ 2. — Relation of Accident to Course of Work
Since the authority of the employer and the dependence of the
worker form, as a rule, the necessary conditions of the application
of the compensation legislation, it follows that the worker is protected against the risk of accident from the moment onwards when
he is at the disposal of the employer until the moment when he
regains h ; s entire independence from the employer. The three
principal points of the "course of work" to be examined are the
beginning, the end, and the interruptions of work: all these points
give rise to questions of the bearing of the above rule.
(1) In general, it may be taken that the authority of the employer begins as soon as the worker enters the employer's premises
or, as a British decision puts it, "the ambit, scope and scene of his
duty". It should be remembered, however, that there is a difference
between the beginning of a man's employment and the beginning
of his actual work. As a rule the course of work is considered to
begin when the actual work begins, but there may be cases in which
the workman's employment begins even earlier. Thus, the course
of work may be taken to have commenced, although the regular
hour of work has not struck, provided, of course, that the worker's
arrival on the premises is necessitated by the circumstances of
employment, or justified by work done in the interests of the
employer.
(2) It follows from the above that the worker's right to protection
against accident risk ceases at the moment when he leaves the
premises under the control of the employer. In this respect, again,
the end of employment or work does not necessarily mean the end
— 131 —
of the actual work done; an accident sustained by a worker on the
premises after the end of regular work does not in itself exclude the
assumption of an accident. In several industries, e.g. in building,
the workers are frequently in the habit of leaving the workplace
only after the lapse of some time after the signal for stopping work,
in order to prepare the work for the following day, to change their
clothes, etc. In so far as all these actions are performed under the
authority and supervision of the employer, they are in principle
included in the course of the work, and consequently the risks
connected therewith are covered. Even when the worker has to
return to the premises for some legitimate purpose, justified by
the terms of his employment, he is considered, in general, to act
in the course of his employment. An example of such legitimate
purpose is furnished by the case of a worker returning to the
premises to obtain his pay. Accidents of the latter kind seem to
be covered according to case-law of France (according to which the
employer is not considered to have freed himself from his obligations
before he has paid the worker's wages), of Great Britain and of
Germany.
The beginning and end of work or employment have in certain
countries been extended even further: the work is considered to
have begun already at the moment when the worker leaves his
home for work, and to end only when he has returned there. That
is to say, accidents occurring to workmen on their way to and
from the place of work have been included in the notion of industrial
accident.
The risks of such journeys become particularly closely related
to the work when the contract of employment explicity or implicitly
provides free carriage for the workmen to and from their place of
work. In this event the course of employment will be held to extend
to such journeys.
If the employer, without being compelled to do so by the labour
agreement, conveys workers to or from the place of work, and
an accident occurs in transit, such accident may be considered as
an industrial accident in cases where the transport was provided
for in the interests of the undertaking.
Some laws go further and cover all risks due to journeys from the
worker's home to and from the place of work, and vice versa, if
not otherwise stipulated. Provisions to this effect are to be found
in the laws of Austria, as well as of Czechoslovakia (excluding
Slovakia and Sub-Carpathian Russia) and Poland (excluding
former Prussian territory), Bulgaria, Finland, Sweden, the Serb-
— 132 —
Croat-Slovene Kingdom and Queensland*. Only in Bulgaria
and Queensland does legislation cover these risks generally; in the
other countries, such risks are covered only on certain conditions.
The Austrian and Serb-Croat-Slovene laws lay down that such
accidents are covered only if the journey has not been interrupted
in the interests of the insured person, or for some reason unconnected
with the work; the Finnish Act includes only accidents on journey
which are particularly hazardous by reason of the situation of the
place of work, and the Swedish Act provides that in order to be
covered the journey must be necessitated by and directly connected
with the employment.
In view of the particular risks of seamen's employment, some
laws make special provisions respecting accidents occurring on the
seaman's way to and from his ship. Thus, according to the German
insurance code, accidents on journeys from the land to the vessel
and from the vessel to the land, as well as on free return transportation, are covered. The Italian law grants compensation for
accidents occurring during the journey undertaken by a member
of the crew in order to embark on the vessel, or to reach his home
if the engagement has been terminated elsewhere, provided t h a t
he has not departed from the pre-arranged route without substantial
reason. The law of the Serb-Croat-Slovene Kingdom is limited
to national seamen without means in respect of accidents met with
on their way home or when taken on board a national vessel.
Finally, the Norwegian Act includes accidents occurring in connection with conveyance from the shore to the vessel and from the
vessel to the shore, or journeys to and from the vessel if made at
the expense of the shipowner or the Treasury.
The Act of the State of Tasmania is the only one which specifically
excludes from risks covered all accidents occurring on journeys
to and from the place of work.
(3) So long as the worker is lawfully or reasonably upon the premises under the control of the employer, the course of his employment will continue. A difficult point, however, arises in connection
with interruptions of work. In the case of ordinary day labourers,
the course of work is intermittent and generally lasts for stated
periods "called "working hours". The employer has no claim upon
such workers during the intervening periods of time. The question
1
Moreover, the Dutch Act covers risks due to such journeys in virtue of
the very general definition of industrial accident {q. v.), provided that the
worker does not wilfully interrupt his journey for reasons unconnected with
his employment.
— 133 —
arises whether or not during such cessation of work the worker
continues to. be in the course of employment. As a rule, the course
of employment is considered to continue so long as the workman
remains within the sphere of the risk of employment. Consequently,
accidents occurring during interruptions of work are excluded only
when the worker interrupts his employment by leaving the sphere
of his risks. He may be considered to remain within the sphere of
the risk of the employment even when he leaves his place of work
by the order or in the interest of his employer.
The most usual interruptions of work are those made for meals
and for rest. The application of the above principles to these
intervals varies from country to country. In France, for instance,
they are considered to be in the course of employment, and consequently accidents sustained during them are covered by the law,
inasmuch as they occur within the establishment. In Great
Britain the protection of the law extends beyond the time of actual
work to legitimate interruptions for the purpose of rest. In
Germany, again, accidents occurring during intervals for rest and
due to the workmen's own occupations (eigenwirtsckaftliche Tätigkeiten), such as eating, drinking, bathing, dressing, etc., are
compensated, provided that they occur in some connection with
the establishment.
The legal texts do not generally include stipulations as to accidents occurring during interruptions of work. Some Acts, however, contain interesting provisions. Thus, the Finnish Act
expressly covers any injury met with by the worker during his
stay at the place of work, provided that such stay was not forbidden. The Swiss Act also includes within its definition of an
occupational accident injuries suffered by an insured person
during an interruption of work and before and after work, so long
as (without fault on his part) he happens to be either on the premises
or in the danger zone of the undertaking. Further, a recent
Latvian Decree, amending the Russian Act of 1912 in force in that
country, has extended the scope of accidents covered to those occurring in the case of interruptions of the work.
§ 3. — Relation of Accident to Place of Work
In order that the accident should be one connected with the
employment or work, it is generally necessary that it should occur
at the place of work. The same considerations as justify the protection of the workers against the accident risk in the course of
— 134 —
employment apply also to accidents occurring at the place of
work. In general the connection with the employment or the work
is presumed in all such cases.
(1) The first difficult point in the application of the above rule is
the question what is to be understood by the "place of work." In
the terms of the labour agreement, a place of work may be defined
to include any place where the worker is by order of his employer.
In different occupations, however, this means very different things.
In most industries, e.g. the manufacturing industries, the place
of work is a determined spot exclusively used for the purposes
of the undertaking, i.e. a shop, factory, plant, etc. The sphere
of the occupational risk cannot, however, be limited strictly to
the undertaking properly so-called, but must as a rule be extended
to cover the whole area connected with it, and falling under the
risk of employment. The place may, in certain cases, be extended
even to industrial canteens and barracks built by the employer
for dwellings, meals, or recreation, on behalf of the workers.
In mining and building industries, the place of work is more
difficult to determine. In the former case the place of work is
partly underground, partly on the surface. In building and
construction, again, the place of work does not mean only the
site of the edifice, but may include also places where the
building materials are stored. The Finnish Act lays down expressly
that "in the construction of railways, tramways, canals, harbours,
streets, roads and bridges, the place of work shall include the whole
area under work and such places outside it as serve for the extraction of earth, clay or stones, as well as railway stations, harbours
and warehouses from which the materials are being transported
to the place of construction, as well as the ways leading to them
from the place of construction."
Still wider is the meaning of the "place of work" in agriculture
and forestry, where it covers the whole of the more or less large
area belonging to the owner as a freehold or leasehold tenancy.
It often may include even the dwellings of the workers, who are
thus continuously "at the place of work."
Finally, in some employments, no specified place of work can
be determined at all. This is the case especially in respect of
certain technical workers, commercial and other agents, drivers,
etc., whose employment consists in a perpetual change of the
place of work, or in travelling. For these workers and employees,
the criterion for the determination of the industrial character of an
— 135 —
accident is not the local connection between the accident and
employment, but other considerations.
(2) Apart from the very changing meaning of the expression
"place of work," it is to be noted that there are cases where the
accident occurs admittedly outside the place of work, and yet
may have the character of an industrial accident.
The most important of these cases are accidents occurring during
the shifting of the workers. A worker who changes his place of work
within the undertaking remains always under the orders and supervision of his employer and is consequently covered, when so doing,
by the compensation law. This rule is, however, generally subject
to the condition that the insured worker does not choose a forbidden route and thus expose himself to a risk not connected
with bis service. Further, the application of this principle to
each case depends very much on the presence or absence of serious
misconduct or inexcusable fault on the part of the worker. This
point will be discussed later.
Similarly, if the worker leaves the place of work on the instruction or in the business of his employer, he normally remains covered
against the accident risk, provided that his action was either
ordered, or implicitly authorised, by the employer, and performed
in the interest of the establishment. The Queensland Act explicitly covers such accidents, and provides that accidents occurring
away from the place of work when in the course of the employment or under the employer's instructions, are covered.
Another case arises when the worker is going from one place of
work to another. While he is obliged to leave the sphere of work
in so doing, he nevertheless remains under the authority of the
employer and may therefore be considered to be entitled to
accident compensation. For instance, in France it has been laid
down that a worker is covered during such a route. Workers and
employees who are continually moving about are covered by the
accident compensation law as long as they are carrying on their work
on account of their employment, irrespective of the place of their
work.
(3) An intermediate case between accidents occurring at the
place of work and outside the same is formed by accidents due to the
means of ingress to or egress from the undertaking. Such ingress
or egress presents in certain occupations special risks, e.g. the case
of the seaman proceeding from the land to his vessel, the railwayman arriving at the station by crossing the lines, or the worker
who is compelled to pass by steam boilers or depots of explosives.
— 136 —
Although the worker may not be at his place of work, he is nevertheless covered against such risks provided that be has followed
an ordinary route, authorised, or at least not forbidden, by the
employer. It may be noticed that (e.g. in Germany) this rule
includes the risk of violence to which "blacklegs" may be exposed
on the part of pickets during a stiike.
§ 4. — Causal Relation between Accident and Work
The decisive characteristic of the notion of industrial accident is
that the employment or work must stand related to the accident
as cause and effect.
The German definition of "industrial accident", as mentioned
above, implies that this relation between accident and work is
always necessary, and also sufficient in itself. It is explicitly
stated in the British law that the accident must have "arisen
out of the employment", and while in French case-law the
relation of accident to work from the standpoints of time and
place is considered as sufficient, this is so because such relation
is taken to establish the presumption of the causal relation implied
by the legal definition itself (par le fait du travail). The
same conception is to be found in the Canadian Acts, which, as
has been mentioned above, establish the presumption of a causal
relation between accident and work in cases where accidents
happen in the course of the work.
(1) The importance of the causal relation between accident and
work may be illustrated by certain cases in which the accident
happens outside the place and the course of work, but yet has its
cause in the work. To this group belong, first, accidents due to
assaults or murder. Such acts are, in fact, not anticipated by
the person suffering from them, and are in certain circumstances
properly considered as industrial accidents. It is clear that
every assault of a worker or foreman (even in the course of employment) has not the characteristic of an industrial accident, whether
committed by a fellow worker, a stranger, or the employer himself.
But this may be so if it is proved that the risk of a particular
assault is in causal relation with the employment or work; for
instance, if a foreman is assaulted by a worker who has been dismissed on account of unsatisfactory work, this is an accident to
the foreman, even irrespective of the fact that the assault was
committed outside the time and place of work. Similarly, if a
worker is assaulted by an overseer on account of bad work, the
— 137 —
motive of the action is traceable to the employment, and the case
may be considered as an industrial accident.
Another class of risks incidental to work which may occur outside the sphere of work are those due to the dangerous nature of
materials used. For instance, a worker may carry with him some
explosive substance and be injured by it at his home; logically
this accident presents the character of an industrial accident,
because there is a direct causal connection between accident and work.
In most countries, however, both the above cases are compensated only when the injured person was in service.
(2) If there are accidents which can occur outside the sphere of
the work, and yet be consequent upon it, there are inversely others
which occur at the place and during the course of work, but are
not causally connected with employment. In general, a worker
must not act beyond his duties. In taking upon himself work
which is quite outside the character or the particular class of work
which his employer has allotted to him, he is not covered against
the accident risk. However, when such self-imposed task is in
furtherance of the employer's business, exceptions to the general
rule are in certain cases necessary.
The first group of accidents which may be considered as industrial
accidents, although they do not stand related to the work as cause
and effect, are those due to acts of emergency, rescue, or salvage.
In all countries an accident happening to a workman who, whilst
engaged in his master's employment, voluntarily does, upon an
emergency, an act outside the scope of his ordinary duties, is
covered, provided, however, that the act was accomplished in the
interest of the employer. In Germany, insurance covers accidents
occurring in any auxiliary occupation connected with the undertaking, including watch duty, fire brigade service, etc., provided
that such employment serves the purposes of the undertaking, and
is connected with it.
Provisions including accidents due to emergency or salvage
have been inserted in the laws of certain countries. Thus, Great
Britain has made a special extension in favour of coal miners, to
the effect that "any accident caused to a workman employed in or
about a mine who is with the consent of his employer being
trained as a member of the rescue brigade, and arising out of and
in the course of his training, shall, for the purposes of the Workmen's Compensation Act, 1906, be deemed to arise out of and in
the course of his employment in the mine" (Coal Mines Act, 1911).
A similar clause, in an extended form, is to be found in the South
— 138 —
African Compensation Act. Again, the insurance code of Germany
has extended the definition of "industrial accident" to cover
seamen who "sustain an injury during services rendered in connection with the rescue or salvage of-men or goods." The Danish
Accident Insurance Act goes further, and includes any- accident
"shown to have been caused by the insured person's attempt to
save human life, to prevent accidents, or to avert serious loss of
property or crops, provided it occurs, whether in or outside the
place of work, in connection with such occupation."
Closely related to the above cases are accidents due to assistance
and help rendered by a workman to his fellow worker. The
habits of common life often extend the sphere of employment to
such acts, which any workman may be considered to be morally
bound to perform, and risks arising from them are covered by the
notion of industrial accident, inasmuch as they are incurred with
the consent (at least implicit) of the workman's superior.
(3) The above considerations concern actions of the worker outside
his regular duties in the employer's interest. There are, however,
also risks which are created in the interests of the worker himself.
The general rule is that such risks are excluded from the scope of
compensation. An exception to this rule may be made only when
the interest of the workman is bound up with the interest of
the undertaking, e.g. in cases of accidents connected with the
payment of wages, satisfaction of personal needs such as eating,
drinking, bathing, physical exercise.
In France and Great Britain, accidents due to such acts may be
covered when the conditions of employment compel the worker
to perform them during work or to be present at the place of work.
On the other hand, they are excluded in Germany, even when in
some relation to the undertaking, because the causal connection
between accident and work is, in virtue of the basic formula
employed for the definition of industrial accident, more strictly
adhered to.
(4) An important group of accidents, the risk of which is only conditionally incidental to employment, are those due to workmen's
horseplay, mischief, larking, or brawling. Though they occur at
the place and in the course of work, they do not directly arise out
of the employment, i.e. the connection between such accidents
and the work may exist from the point of view of time and place,
but not from the standpoint of cause. It is difficult to give a
general rule on this point, but it may be illustrated by the development of the case-law in Great Britain. It was previously decided
— 139 —
that it was not within the scope of the employment of workers to
indulge in horseplay, and that injuries thereby sustained by a
worker, even if not a party, were not compensable industrial
accidents. Later, however, the House of Lords supported the
view "that an arbitrator is entitled to take into consideration the
mischievous nature of boys, and that where boys are engaged it
may be said with reason that the likelihood of their indulging in
play is one of the risks which the employer runs in employing
child labour, and is one of the risks which each employee runs who
has to work with child companions". Accidents due to larking
may thus be compensated, at least when young workers are concerned and larking has some connection with the incidence of
employment (Willis). It would, similarly, seem from the French
and German case-laws that accidents due to horseplay or mischief,
especially as far as young workers or apprentices are concerned,
are not excluded from compensation. In general, these accidents
thus belong, from the legal point of view, to cases attributable to
the fault of fellow worker.
It will be seen from the above that the definition of the causal
connection between accident and work is subject to several important limitations and exceptions. The interpretation of this criterion
of the industrial accident has tended to be more and more liberal,
and particularly so in view of the necessity of taking account of
accidents which are partly due to risks of work and partly to common risks.
§ 5. — Risk of Work Connected with Common Risks
It used to be held generally that an accident, in order to
constitute a compensable industrial accident, must be caused by
a particular risk of the industrial work, a risk exceeding the common risk to which all men are alike exposed in their daily life.
This conception emerged from the principle concerning the scope
of industries covered by the law: the industries were originally
divided into "hazardous" and "non-hazardous" ones, and the
principle of occupational risk was applied only to the former
group. Logically, then, only the particular "aggravated risks"
that rendered the industrial work "hazardous", as distinguished
from risks common to any work, were to be covered.
When it was admitted that only accidents causally connected
with the work were to be covered, it meant that the employment
must constitute the sole source of the industrial accident risk.
— 140 —
After many decades of evolution, the case-law has passed beyond
this narrow conception of the occupational risk. The general rule
is now everywhere that the accident need not necessarily be
occasioned exclusively, directly or immediately by the work; it
is sufficient that the employment or work constitutes a contributory cause of the accident. The common risks, or "risks of
daily life" create an indefinite series of accidents ; the most important
group of them are cases of force majeure.
Cases of force majeure are often assimilated to "fortuitous cases".
In the Roman law no distinction was made between these categories
which were both considered as events superior to the human will,
and impossible to foresee or prevent. "Casus fortuitus appellatur
vis major, vis divina, fatum, damnum fatale, fatalitas", was the
definition given by Averani1. This assimilation still exists in the
law of several countries. With reference to accidents, however, it
is evident that while both these cases are independent of the will
of the employer or of the workman, there is an important distinction as to their cause. The fortuitous cases are due to the inherent
hazards of the industry, to the imperfection of human foresight
and insight, and thus constitute an objective fault of the industry;
it was, indeed, to them that the principle of occupational risk
originally and chiefly referred. They are always covered by the
compensation law.
The causes of the risks of force majeure, on the other hand, are
entirely outside the industrial undertaking, the employment, and
the work. They include risks arising from "Acts of God" and
"Acts of the King's Enemies," i.e., from the forces of nature,
attacks of animals, stings of insects, aerial bombardments and other
war incidents, etc. Injuries sustained on account of such events
are normally considered as accidental injuries, and when they are
connected with the workman's employment, they usually constitute
industrial accidents.
There seem, however, to be certain differences in the application of this rule in various countries. The principle adopted in
the British case-law is that, assuming the workman to be acting
legitimately in the course of his employment, an accident will
arise out of the employment if it results from one special danger
with which the workman is brought into contact by the nature,
conditions, obligations, or incidents of his employment; if the
character of the employment be such as to create or intensify the
1
"De Fortuitis Casibus", in Vol. VII of Tractatus tractatuum, quoted by
LOUBAT {op. cit., p.
204).
— 141 —
risks that arise from "extraordinary natural causes", an accident
occurring in such circumstances is considered as one arising out
of the employment, and therefore covered (Willis). French caselaw is somewhat similar. It has been ruled by the Cour de
Cassation that, in principle, the law does not apply to accidents
due to the action of the forces of nature, even when they occur
during the work; per contra, the law becomes applicable, "if the
work has contributed to put these forces in motion, or has aggravated their effects" (Sachet). In Germany where the old conception of the special risk of the undertaking as an exclusive condition
of compensation was over-ruled first after 25 years of experience,
the modern case-law has taken a more liberal view. All common
risks arising from the forces of the nature are insured when they
occur in the undertaking itself; "the dangers of daily life become
risks of the undertaking through the fact that the workman is
exposed to them in consequence of his very service in tbe undertaking" (Reichsversicherungsamt, in 1909).
The laws of the countries mentioned do not contain specific
provisions in respect of cases of force majeure. There are, however,
other laws in which such provisions have been inserted. Accidents
due to force majeure without distinction are covered only by the
Roumanian law, but several of the Canadian Provinces approach
the same position by covering "chance (fortuitous) events due to
physical or natural causes" (Alberta, British Columbia, Ontario,
Yukon). The French view is sanctioned in the laws of a number
of Latin countries which specifically exclude accidents due to force
majeure unconnected with the work, as do Argentina, Brazil, Chile,
Colombia, Cuba, Ecuador, Panama, Salvador, Spain and Uruguay.1
It will be seen that no country excludes cases of force majeure
unconditionally, and this no doubt may be regarded as a distinct
step forward from the point of view of the principle of occupational
risk.
1
"Fortuitous events unconnected with the work" are assimilated to cases
of force majeure in a few laws (e.g. New Brunswick, Ecuador and Salvador).
CHAPTER III
NOTION OF FAULT Di WORKMEN'S COMPENSATION
§ 1. — General Relation of the Notion of Fault to the Principle of
Occupational Risk
Although the principle of occupational risk essentially implies
that, in general, accidents connected with the work are due to
risks inherent in, or incidental to, the industry, and therefore
should be compensated, there nevertheless are cases where this
assumption does not hold good. Even the widest concept of occupational risk excludes from compensation some industrial accidents
in which the element of personal responsibility of either the employee, the employer, or a third party, is so preponderant that
the accident cannot be attributed to an objective fault of industry.
In other words, the application of the principle of occupational
risk raises the question of the relation between the common law
notion of personal fault, and the new concept of occupational risk.
The solution of this problem has been reached through gradual
development.
The first step was the admission of the principle of occupational
risk properly so-called, which included not only recognition of
the fact that a large number of accidents may happen from no
one's fault, as a consequence of certain industrial processes, but
also the conclusion that, for this reason, the industry, and not
the employee, was responsible for them. This conception, important
as it was from the point of view of general progress, still left open
the question of fault on the part of the worker or the employer.
In cases where such fault was established, the prescriptions of
common law were still applied: if there was a fault on the part
of the workman, compensation was refused, and if the employer
was found guilty of a fault, he was bound to pay full damages.
But even this system — which may be called the system of
occupational risk proper — was soon seen to be unsatisfactory. It
did not remove the possibility of litigation which was one of the
objects of the compensation legislation, since it left to the domain
of common law a number of cases of slight fault, like negligence,
imprudence, carelessness, etc., which, in reality, are determined
— 143 by the character and conditions of modern industrial work itself,
its speed of production, its product of fatigue, in short, its influence
upon the physical and psychical state of the operatives.
But once the principle of occupational risk was admitted, the
way was paved for a further extension of compensation. Everywhere modern compensation legislation tends increasingly to
disregard the legal notion of fault and to take more and more
in consideration the economic need for enlarging the sphere of
occupational risk. This extension has, however, been effected to
very varying degrees in the different countries. While some compensation laws include into the scope of occupational risk all
accidents except those intentionally self-inflicted, others still
exclude from it accidents due to the negligence or imprudence on
the part of the workman. Again, while a few laws cover without
exception all accidents attributable to the fault of the employer,
others refer accidents due to a wilful act or negligence on his
part to the domain of the common law, with a view to providing for an alternative or an addition to the ordinary compensation.
Consequently, there is no standard definition of the real scope
of occupational risk. It may rather be said that the concept of
occupational risk has remained different in different countries.
It is proposed to examine in this chapter the problem of
the persistence and survival of the notion of fault in compensation legislation. The limitations placed by this notion upon the
scope of occupational risk may be grouped under three headings,
viz. first, cases of fault, on the part of the worker, secondly, cases
involving the employer's fault, and thirdly, the less important
group of accidents due to the fault of other persons, i.e. fellowservants and third party properly so called.
§ 2. — Fault of the Worker
The problem of the relation of the notion of fault on the part
of the worker to compensation on the basis of occupational risk
is fairly simple. Practically all legislations provide that in certain
cases of such fault either the worker's claim to compensation is
forfeited, or the compensation due to the workman is to be reduced.
The differences between the various laws refer to the degree of
fault that has these effects.
It is convenient to examine these provisions under five main
headings which are, according to the descending scale of faults,
as follows:
— 144 —
(1)
(2)
(3)
(4)
(5)
intentional infliction of injury;
criminal action, misdemeanour;
inexcusable fault, wilful misconduct;
violation of rules, intoxication; and
gross negligence or negligence in general.
(1) The most general group of injuries excluded from compensation
are those which are intentionally self-inflicted. In such cases the
person concerned has intentionally caused the injury for an illegal
purpose, namely obtaining compensation by fraud, and it is quite
reasonable to exclude him from the point of view of the principle
of occupational risk. Moreover, since an accident in its most primary meaning implies an event which was not expected or designed,
an injury intentionally self-inflicted can hardly be covered by the
broadest definition of the notion of accident. Such accidents, if so
they may be called, are therefore obviously excluded from the
compensation legislation. Nevertheless, the exclusion of intentionally or deliberately self-inflicted injuries is specifically provided
for in the Acts of some 34 states, as shown in the appended table.
The exclusion of intentionally self-inflicted injuries is not,
however, absolute or categorical in all these countries. Thus, in
the Roumanian Act, the provision is made in a weaker form: in
the case of an injury intentionally self-inflicted the employer shall
have the right to submit the case to legal investigation. According
to the Italian Act the insurance institution may take action against
the injured worker with a view to recovering the sums paid out
erroneously on account of a self-inflicted accident, only if there is
a verdict of criminal intent to constitute the proof of such an act.
Finally, the Acts of Hungary and the Serb-Croat-Slovene Kingdom
form important direct exceptions to the rule. The former Act
stipulates that, should the injured person die, his dependants
are entitled to the legal benefits and pensions even in the case
of an intentionally caused accident, and the latter Act provides
that, in the event of a fatal accident the family of the deceased is
entitled to the benefits of insurance.
These cases, although rare, are a striking illustration of the new
principles governing compensation legislation. Although such
intentional cases are, from a legal point of view, equivalent to
fraud, it is considered just, regarding the matter from the standpoint of economic need, to grant compensation to the family of
the worker whose self-inflicted injury results in death, and whose
family is thereby threatened with destitution.
— 145 —
Several laws add to the risks excluded accidents inflicted intentionally by another group of beneficiaries of the law, viz. by a
dependant of the worker. Stipulations to this effect are to be found
in several laws; in general, such acts, deliberately committed for
the purpose of getting the compensation due to the survivors of a
worker killed as a result of an industrial accident, amount to fraud
and premeditated crime, and are in fact excluded by the very
notion of the industrial accident.
(2) Accidents attributable to a crime or misdemeanour are specifically excluded under various formulae in the laws of Austria, Chile,
Czechoslovakia, Cuba, Finland, Germany, Japan, Luxemburg,
Panama, Poland, and Portugal. The hardship which may be
caused by this provision to the workman or to his survivors, is
sometimes alleviated by special stipulations. Thus, the misdemeanour must in some countries be intentional and established by
a verdict of a court of law; and the exclusion is only conditional
in Germany and Cuba, where the denial of compensation may be
either total or only partial.
A number of laws stop at this degree of fault. The principle of
covering all other cases of fault, including contraventions of rules
and regulations, is strikingly illustrated by the provision of the
German Code that "acts which are forbidden do not exclude the
assumption of an industrial accident". This principle has been
more or less followed also by the laws of many other countries.
It is a significant fact that the 1923 amendment of the British
Compensation Act, 1906, has extended the scope of risks to cover
accidents, notwithstanding that the workman was acting in contravention of regulations or orders, or was acting without instructions
from the employer, "if such act was done for the purposes of, and
in connection with, his employer's trade or business", provided,
however, that the accident resulted in death or in serious and
permanent disablement.
Most countries, however, do not cover unconditionally all accidents due to other faults than intentional infliction or crime and
misdemeanour properly so-called. Accidents attributable to a forbidden act or very serious case of contravention of rules and regulations are very often excluded from compensation; but the definitions of such cases vary considerably from country to country.
(3) The most restricted definition in this respect is that provided
for by the French law which limits the compensation in cases due
to an inexcusable fault on the part of the workman. According to
case-law, this does not mean gross negligence or serious fault, which
10
— 146 —
are entirely covered by the law. The "inexcusable fault" means
something more, i.e. an exceptionally serious fault, which is the
highest point in the scale of faults. The criteria of the inexcusable
fault are the conscious will and intention of the workman, applied
not to the accident itself (which would amount to the definition
of an intentionally inflicted injury), but to the fault which has
occasioned the accident. Inattention, imprudence, forgetfulness,
taking unreasonable risks, curiosity, etc., which are considered to
be inherent in human nature, are not considered inexcusable.
Moreover, the infringement or violation of regulations does not
a priori constitute inexcusable fault. It has this character only
when accompanied by a conscious will to violate the rules •—• e.g.
when a worker causes an accident by an act which has been expressly forbidden to him or by drunkenness, provided this was a direct
cause of the accident (Loubat).
It is to be noted that the effect of the above provision upon the
right to compensation is not absolute. "Inexcusable fault" can
never exclude compensation wholly, but only partially, according
to the decision of the courts. The same provision as in France is
enforced also in Quebec and Peru.
In the British legislation, a similar limitation of the workman's right to compensation is to be found. It excludes
accidents attributable to serious and wilful misconduct of the
worker. The meaning of this formula has been defined by the
judicial decisions in the following manner. The stipulation that
the misconduct must be "serious" means not merely that the
consequences are serious, but that the misconduct itself is serious.
For instance, the breach of a rule may provide the opportunity
for the happening of an injury, yet at the same time it does not
follow that the breach of the rule will, as a matter of course,
necessitate an increase or certainty of risk. But where there is a
deliberate and unexampled act of disobedience to an express order,
or where there is a deliberate breach of the law or rule which is framed
in the interests of the workmen and for the express purpose of securing their safety, and the workman is not acting in the interests
of his employer's business, it will usually be held that such a breach
or such disobedience amounts to serious misconduct. "Wilful misconduct" again means misconduct to which the will is party, that
is to say, something opposed to accident or neglect : the misconduct,
not the conduct, must be wilful. Having established the serious
and wilful misconduct of the workman, the employer must further
show that the injury was attributable to it; it need not be the sole
cause, but only a natural result of the misconduct (Willis).
— 147 —
Accidents due to serious and wilful misconduct are excluded in
all British legislations (except Queensland and Quebec). The term
is defined in South Africa to mean (a) drunkenness, (b) a contravention of any law or statutory regulation made for the purpose
of ensuring the safety or health of workmen, or of preventing
accidents to workmen, if the contravention was committed deliberately or with reckless disregard of the terms of such law or regulation, and (c) any other act or omission which the magistrate or
a court of law may, having regard to all the circumstances of the
accident, declare to be serious or wilful misconduct.
Although by these interpretations the scope of this offence is
considerably restricted, it might be argued that the loss of all right
to compensation for such a slight crime is too heavy a punishment
for the worker. This is indirectly admitted by the greater part
of the Acts concerned, which, in order to modify its effect, have
added to the words "serious and wilful misconduct" the reservation "unless resulting in death or serious and permanent disablement". This formula is to be found in the laws of Great Britain,
the Commonwealth of Australia, Victoria, British Columbia, Manitoba, Nova Scotia, and New Zealand. The Acts of Alberta and
Ontario have slightly extended the scope of compensation, subject
to the reservation "unless resulting in death or serious disablement."
By reason of these reservations, the restriction has lost very
much of its importance, and practically amounts only to a
comparatively slight fine.
The above restrictions of the worker's right to compensation
refer to clearly exceptional cases of the highest degree of fault. A
number of countries, however, go further and restrict more considerably the employer's liabilities. We may deal first with cases
of violation of rules and intoxication.
(4) Violation or infringement of laws or regulations (of which those
concerning the safety and health of workers come into consideration) do not, as mentioned above, constitute ipso facto "inexcusable
fault" nor "serious and wilful misconduct", although they may
do so; they form rather the principal class of misconduct in general.
This class of fault has remained in the list of exclusions only in two
compulsory insurance laws, viz. in that of Denmark (compensation forfeited either totally or partially) and Sweden (compensation reduced if violation of rules is combined with gross carelessness). Of other compensation laws, those of Argentina, Brazil,
Colombia, Greece, India and Uruguay, exclude — often only
conditionally — accidents attributable to violation of rules,
— 148 —
wilful disobedience, or misconduct, under various formulae, as
shown in the appended table.
Like violation of rules, intoxication constitutes a special class of
misconduct. It is deemed to be even an "inexcusable fault", or
"serious and wilful misconduct" in certain cases in France and the
British countries. In addition, some laws contain specific provisions
concerning drunkenness: compensation is reduced on account of
such an offence in the Netherlands, Roumania, and Sweden; it is
either totally confiscated or reduced in Danmark and Japan, while
the intoxicated worker entirely forfeits his claim to compensation
in New Brunswick, Yukon, Victoria, and India ("intoxication by
drink or drugs").
(5) As regards, finally, cases of gross negligence or serious fault
in general, it is a noteworthy fact that they are not in general
excluded from compulsory accident insurance systems. The
original laws of many countries which adopted this system excluded
such cases, e.g. Finland (before 1917), Sweden (before 1916), and
Russia (before 1912), but later this conception was swept away. To
this rule there is at present only one partial exception, viz. Denmark, where cases of gross negligence are assimilated to those of
violation of rules and drunkenness, and consequently involve a
total or partial loss of compensation, if the injured person has
brought about, or largely contributed to, the occurrence of the
accident through such negligence.
In the systems of workmen's compensation without collective
insurance, this limitation of the personal liability of the employer
may appear more natural. Some countries, especially in Latin
America, have taken this view. Thus the workman forfeits all
claim to compensation in Argentina, if the accident was due to
"serious fault" on his part or (if killed) on the part of his survivors.
Cases of "manifest incompetence" or "reckless imprudence" are
excluded in Ecuador, and similarly cases of "obvious negligence
or serious imprudence" in Salvador, while Colombia exempts from
compensation all accidents due to the "fault, imprudence, or
negligence" on the part of the worker. In Japan, mining accidents
are not compensated if due to the worker's "serious fault". In
Europe, Greece and Lithuania, in which latter country the earlier
Russian Act of 1903 is in operation, are (in addition to Denmark)
the only countries where "gross negligence" still excludes the
worker from the benefits of compensation.
It will be seen from the above that the cases of fault on the part
of the worker may be distinguished in to two groups. There are,
— 149 —
first, the accidents due to intentional infliction and to a criminal
act or misdemeanour; these cases are practically unanimously
excluded from compensation. But in respect of all the other classes
of faults, there are wider differences between the several laws.
It is particularly to be noted that the compulsory accident insurance laws do not, as a rule, go beyond the above mentioned
degrees of fault; they may even expressly include accidents due to
forbidden acts; at any rate, they generally cover cases of misconduct and negligence. In fact, the very principle of insurance
has sometimes been defined to mean "the substitution of the principle of risk for the principle of fault". In social insurance covering
large groups, the loss on account of cases of negligence becomes
dissolved in the general cost of compensation, and litigation arising
from such cases would do more harm than good. On the other hand,
in the system of workmen's compensation which simply places
the liability of compensation upon the individual employer, it
might be considered unfair to force him to compensate for a loss
due to the misconduct and negligence of the workman, especially
when it is a serious or wilful case. Notwithstanding this fact, a
great number of compensation laws show a tendency to follow
the development of insurance laws; some of them even stop at
the exclusion of intentional accidents only (e.g. Belgium), while
others have found a middle course, and have judged it sufficient
to exclude (partially) either cases of "inexcusable fault" which is
more than gross negligence (e.g. France) or cases of "serious and
wilful misconduct" (British Acts), the meaning of which has been
recently further restricted (in Great Britain).
Thus the exclusion of accidents attributable to negligence is at
present an exception rather than the rule. It is, indeed, more and
more evident that the Acts containing such exclusions are based
on a distinct compromise between the obsolete conception of fault,
and the principle of occupational risk underlying the modern
compensation system.
§ 3. — Fault of the Employer
According to the common law, only accidents attributable to the
fault of the employer were compensated, and when such fault was
established, the worker was entitled to full damages for his economic
loss. The principle of occupational risk has replaced the subjective
fault of the employer by the objective fault of the industry, and
damages by compensation. In this point, however, compensation
— 150 —
legislation still shows traces of its historical development, and the
employer's personal liability for accidents attributable to some
degree of fault on his part still exists in most compensation laws.
These provisions form a parallel to those concerning the fault of
the worker. As a matter of course, if common sense and equity
require that uniform compensation should be modified to the
detriment of the worker in certain cases of misdemeanour or
inexcusable or serious fault on his part, then such modification
•should be counterbalanced by a corresponding increase in the
liabilities of the employer in certain cases of fault on his part.
In cases of fault on the part of the employer, the legislation may
either apply the principles of occupational risk and compensation,
or open to the injured worker or to his survivors the possibility
of recovering damages through an action under common law against
the employer.
The system of compensating for accidents due to the employer's
fault according to the prescriptions of the compensation legislation,
excluding all possibility of suits for damages, exists only in
France and the Province of Quebec. In these countries, compensation due to the worker is increased in the case of an inexcusable
fault on the part of the employer, as it is decreased in the case
of an inexcusable fault on the part of the worker.
In respect of the system which opens the possibility of taking
action under common law against the employer, it is necessary
first to examine the relation of this action to the claims in virtue
of the compensation law. Further, in the system of compulsory
accident insurance, the insurance institution may take action
with a view to recovering expenses paid out by it because of accident attributable to the fault of the employer. It is therefore
convenient to examine: (1) the systems of suits for damages open
to the worker or his survivors in the compensation laws without
compulsory insurance, and, (2) the systems of such suits open to
the worker or his survivors and to the insurer in compulsory insurance laws.
(1) Most compensation laws admit damages under the common
law as an alternative to benefits under the compensation law. This
system is illustrated by the provisions of the British Workmen's
Compensation Act: when the injury is caused by the personal
negligence or wilful act of the employer or of some person for
whose act or default the employer is responsible, nothing in the
Act affects any civil liability of the employer, but in that case the
worker may, at his option, either claim compensation under the
— 151 —
Act or take proceedings independently of it; the employer shall
not be liable to pay compensation for injury to a workman both
independently of and also under the Act. Most of the Anglo-Saxon
countries follow Great Britain in the method in which they deal
with accidents imputable to the fault of the employer; and so
also do Belgium, Greece, and the majority of the Latin American
countries.
In most countries the employer is liable to proceedings under common law only in certain more or less exceptional cases.
The most restricted provisions of this kind are those contained
in the Belgian Act, which allow of proceedings under common
law only in cases where the accident was brought about intentionally
by the employer. Most countries also include such intentional,
wilful or premeditated acts, or fraud, in the scope of the employer's
civil responsibility, but add to them other faults of wider scope.
Following the descending scale of faults, there are, in the first
place, the cases of a criminal or unlawful act on the part of the
employer (e.g. Peru). Somewhat wider is the scope of the civil
liability when extended to cases where the employer is deemed
to have infringed legal prescriptions concerning the safety of workmen and the prevention of accidents (e.g. Greece). Great Britain
and other British legislations (in Canada, however, only Yukon)
have established the employer's liability to legal proceedings for
full damages in all cases of "personal negligence" (in addition to
cases of "wilful act"); South Africa has replaced this by "serious
fault". The latter formula is to be found also in the Chilean Act.
A more extensive formula in this respect is that employed in the
Spanish Act which allows suits for damages for all accidents imputable to "fraud, imprudence, or negligence" on the part of the
employer.
There are, finally, certain laws which place no specific limitation
on the civil responsibility of employers for accidents due to their
fault. "Nothing in the Act affects the civil liability of employers"
is stipulated in the compensation Acts of New Zealand and the
Commonwealth of Australia, as well as in those of India and
Saskatchewan, and a similar standpoint is taken by the laws of
Argentina, Brazil, Cuba, Panama, and Salvador.
(2) The problem arises in a different form when compensation is
combined with compulsory insurance. In this case, the insurance
institution is obliged to pay compensation to the worker or, if
killed, to his survivors, even for accidents attributable to the fault
of the employer; consequently, most laws leave to it the possibility
— 152 —
of instituting proceedings under common law against the employer
in order to recover the expenses caused by such an accident. The
employer is thus liable to proceedings both on the part of the injured worker, or his survivors and on the part of the insurance
institution.
Persons injured through the fault of the employer thus receive
the ordinary compensation in any case (the Danish accident
insurance law is the only one which allows the worker a choice
between suits for damages and compensation, the one action excluding the other). In addition, the worker may take legal proceedings against the employer under the common law in order to
recover more damages. The damages which the worker or his
survivors may recover from the employer cannot, however, exceed
the difference between the compensation paid in conformity with
the prescriptions of the accident insurance law, and the amount
of full damages which would be due to the worker in the case
of an integral compensation according to the common law
principles.
Proceedings under common law are usually allowed to be taken by
the worker or his 'survivors only in certain exceptional cases,
viz. when the accident was brought about by the employer (or
his representative) intentionally or wilfully (e.g. Austria, Czechoslovakia, Germany, Hungary, Poland, Portugal), to which are
sometimes added cases of misdemeanour (e.g. Italy, Netherlands),
or cases of gross negligence and grave fault (e.g. Norway, Switzerland), or cases of negligence (e.g. Russia), while in some countries
in all cases in which the employer is to blame, i.e. in cases of
the employer's fault in general (e.g. Denmark, Finland, Sweden,
Serb-Croat-Slovene Kingdom) suits for damages are allowed.
The legal claim of the insurance institution against the employer
for recovery of all expenses incurred by it on account of accidents
caused by the employer, is in general admitted in similar conditions as in the case of the worker or his survivors. Sometimes the
civil liability of the employer towards the insurer is more extensive
than his civil liability towards the worker. This will be seen from
the following instances:
Austria, Czechoslovakia, Germany and Poland: legal claim of
the insurer is extended to cases of gross negligence of the
employer.
Hungary, and the Serb-Croat-Slovene Kingdom: cases of nonobservation of safety prescriptions.
— 153 —
Bulgaria : the employer is liable only to reimburse the insurance
institution, in cases when the accident is attributable to his
intention, misdemeanour, or non-observance of safety rules.
Per contra, in a few compulsory insurance laws, the employer's
civil responsibility subsists to a greater extent in respect of the
worker than in the case of the insurer, as will be seen from the
following instances:
Sweden: the insurer has a claim against the employer only
when he has brought about the accident wilfully, while the
worker may institute legal proceedings in any case;
Finland and Switzerland : the insurer's claim against the employer
is not provided for, while the worker has the possibility of
taking suits for damages.
§ 4. — Fault of Fellow Worker. Fault of Third Party
Cases of fault on the part of the worker and the employer constitute in the system of compensation law the two great headings
under which the common law has been involved in the new principles of occupational risk. But, apart from the workman himself, and the employer, there are other persons whose fault may
increase the industrial accident risk: namely (1) fellow workers;
(2) third parties, i.e. persons unconnected with the undertaking.
(1) The common law, and more particularly, the Anglo-Saxon
common law, included among the defences of the employer, in
virtue of which he could refuse to accept liability, the so-called
"fellow-servant rule", i.e. the common employment excluded
liability when the injury was caused to the workman by reason
of the negligence of a fellow workman employed by the same
master for the purposes of the same business. This rule, which was
in force in other countries also, was sometimes abrogated even by
the common law, e.g. in France, as early as in the Code Napoléon.
With the advent of the compensation legislation, the defence of
fellow-servant's fault disappeared altogether.
The general rule is now everywhere that the very fact of many
people working together in one undertaking constitutes a risk
inherent in, or incidental to, the occupation. Fellow workers are
not "persons unconnected with" the undertaking or with the
employment of workmen ; on the contrary, the employer's personal
responsibility generally extends to them as to his representatives.
Consequently, accidents due to the fault of a fellow worker are,
— 154 —
as a rule, compensated. Difficulties are apt to arise, however, in
cases where a fellow worker brings about the accident intentionally,
or by assault, or in consequence of "larking" or "brawling". It
follows from the general principles of jurisprudence, outlined in a
previous section of the present chapter, that the risk of such
accidents is covered if the work constitutes a contributory cause
of the accident.
(2) The question of accidents due to the fault of third parties, i.e.
persons unconnected with the undertaking, is somewhat different.
In general, the risk of such a person bringing about an accident
to a worker in the course of, or at the place of, his employment is
covered only so far as the worker is particularly exposed to it by
the nature, conditions or circumstances of his work.
In general, it appears that the employer or insurer is liable to
pay compensation for accidents attributable to the fault of third
parties. This is sometimes expressly stated in the Act, e.g. in
Germany, where fault of a third person does not exclude the
assumption of an industrial accident, in Argentina where the law
covers all accidents caused by third parties, and in a number of
the Canadian provinces where the law states that "accident shall
include a wilful and intentional act not being the act of the workman" (Alberta, British Columbia, Manitoba, Ontario, Yukon).
On the other hand, some Acts, particularly in Latin American
countries, exclude accidents caused by the intention, misdemeanour,
or serious fault of a third person (e.g. Brazil, Chile, Panama).
There is a second general rule to the effect that the civil liability
of the third party remains intact, and that legal proceedings under
common law may be instituted against it. Only in some of the
Canadian provinces is the right to compensation under the Act
held to be in lieu of all other rights.
The employer or the insurance institution being thus liable to
pay compensation for industrial accidents caused by third parties,
and, on the other hand, such third parties being responsible under
the common law, the situation of the worker is similar to that in
cases of accidents attributable to the employer's fault. Thus,
most compensation Acts with voluntary insurance give the worker
the choice either of taking legal proceedings against the third
party to recover damages, or of claiming ordinary compensation
under the Act. One important addition, however, must .be made :
if the worker recovers compensation, the employer shall be entitled
to be indemnified by the person liable to pay damages (e.g. Great
Britain) ; or, if the worker recovers damages, the employer will be
— 155 —
relieved, in due proportion, from his liability under the compensation law, being entitled himself to take legal proceedings against
the third party if the worker has not done so (e.g. France).
Again, compulsory accident insurance laws usually pay the
ordinary compensation, and allow the worker the right to recover
additional damages under the common law. In this case, as in
cases of fault imputable to the employer, the claims of the worker
against the third party are transferred to the insurance institution,
up to the amount paid by it to the worker as normal compensation.
This is the case also in Switzerland, where such transfer of claim
is not provided for in the case of fault of the employer.
In conclusion, it may be stated that accidents attributable to
the fault of a fellow worker are dealt with in the several Acts as a
special class of ordinary industrial accident risk. The common
law has subsisted in respect of accidents attributable to the fault
of a third party, chiefly in order to safeguard the interests of the
employer and the insurer, who cannot be required to carry alone
the risk of fault on the part of persons unconnected with the undertaking. Workers, again, have the right to compensation in all cases
where the accident was caused by a fellow worker or a third party
(provided that the accident was an industrial one) and this is no
doubt a very important phase of the integral realisation of the
principle of occupational risk.
— 156 —
COMPARATIVE
TABLE
SHOWING THE
RISKS COVERED
(Occupational
Accidents and injuries covered
Countries
and Acts
General
definition
ARGENTINA
(.Act of 11 October
1915, Order of lé
January
1916)
Accidents sustained by
workers in t h e course oí
t h e performance of t h e
work assigned t o t h e m .
I n d u s t r i a l accident means
a n y occurrence in t h e
course of, or in consequence of, work t h a t
results in bodily injury,
direct or indirect, a p p a r e n t or non-apparent,
superficial or profound.
AUSTRALIA
Commonwealth
(Act o/ 24 December
1912)
Personal injury by accident arising out of and
in t h e course of t h e
employment.
New South Wales
(Acts of 13 December
1916 and 31 December 1920)
Ditto
Queensland
(Act of ó
1916)
January
South Australia
(Act of li December
1911)
Tasmania
(Act of 14
1919)
January
Victoria
(Act of 21 December
1912)
Western Australia
(Act of 21 December
1912)
Special provisions
BY,
AND
Diseases
Accidents
A t t r i b u t a b l e to
intentional
infliction
Occurrences resulting
from a fortuitous cause
or force majeure inherent t o t h e work, and resulting in bodily injury.
— Cases of imprudence
on t h e p a r t of an experienced worker resulting from t h e h a b i t u a l
performance of a n y kind
of work.
Accidents intentionally
brought a b o u t by t h e
injured worker, or by
his survivors.
Injury by accident, w h e t h e r a t t h e place of t h e
employment, or on t h e journey to or from such
place or (being in t h e course of t h e employment or
while under t h e employer's instructions) away
from t h e place of employment.
Injury or d e a t h caused
by an intentional selfinflicted injury.
Personal injury by accident arising out of and
in t h e course of t h e employment.
Ditto
Ditto
Ditto
— 157 —
EXCLUDED FROM, WORKMEN'S COMPENSATION
LEGISLATION
omitted)
ind injuries wholly or partly excluded
Attributable to gross
Attributable to misdemeanour, misconduct negligence or imprudence
or drunkenness
Accidents due to violation of works regulations, provided that
these were expressly
approved by the National Labour Department.
Accidents exclusively
attributable to the serious fault of the injured
worker or of his survivors, and those which
the worker could have
avoided of his own
accord.
Attributable
to other
circumstances
Accidents attributable
to a case of force majeure extraneous to the
work.
Accidents and injuries
attributable to the
employer's fault
When the accident was
caused by fraud or fault
of the employer, the
workman may either
claim compensation under the act or take action
for damages under common law, but one action
excludes the other.
Injury attributable to
the serious and wilful
misconduct of the workman, unless the injury
results in death or serious and permanent
disablement.
The Act does not affect
the civil responsibility
of the Commonwealth,
but the workman is not
entitled to receive compensation both under
and independently of
the Act.
Injury attributable to
the serious and wilful
misconduct of the workman.
If the injury was caused
by personal negligence
or wilful act of the
employer or any person for whose act he is
responsible, the workman may, at his option,
either claim compensation under the act, or
take proceedings independently of it.
Ditto
—
—
Ditto
(In cases of personal
negligence or premeditated act of the employer.)
Ditto
—
—
Ditto
Ditto
—
Accident occurring on
journey to or from the
place of work.
Ditto
Injury attributable to
the serious and wilful
misconduct of the workman (including being
under the influence of
intoxicating liquor), unless the injury results in
death or serious and permanent disablement.
Injury attributable to
the serious and wilful
misconduct of the workman.
Ditto
—
Ditto
.
— 158 —
COMPARATIVE TABLE SHOWING THE RISKS COVERED BY, AND
(Occupational
Accidents and injuries covered
Countries
and Acts
Diseases
Accidents
Attributable to
intentional
infliction
General definition
Special provisions
AUSTRIA
(.Acts of 28 December
1SS7, 20 July 1894,
30 December 1917)
Accidents in undertakings subject to insurance.
Accidents due to the
performance, by the
order of the employer
or on his behalf, of domestic or other work
outside the employment
subject to the insurance
and in the course of the
same. — Accidents occurring on the way from
the dwelling of the workman to the work place
and back, provided that
this way has not been
interrupted in the interest of the insured
person or for any other
reason unconnected with
his work.
Accidents brought
about intentionally by
the injured person.
BELGIUM
(Acts of 24 December
1903 and 7 August
1921)
Injuries resulting from
accidents sustained in
the industrial establishments under the Act
during and in consequence of the carrying
out of a contract of work.
Any accident met with
during the execution
of a contract of work
shall, until the contrary
is proved, be presumed
to have occurred in consequence thereof.
Accidents caused deliberately by the injured
person or by any of his
dependants.
BRAZIL.
Accidents due to a
(Decree of 15 January sudden, violent, external
and not wilfully caused
1919)
occurrence arising out
of or in the course of the
employment, producing
bodily injuries or functional disturbances which
are the sole cause of
death or total or partial,
permanent or temporary
loss of capacity for
work.
BOLIVIA
(Act of 17 January
1924)
Bodily injury
which a worker
while employed,
work or some
arising from it.
Accidents caused wilfully.
with
meets
due to
cause
BULGARIA
Sudden injury, inde(Acts 0/6 March 1924 pendent of the will of
the workman, occurring
and 25 June 1924)
during and in consequence of the work, and
resulting in incapacity
or death.
Accidents met with on
the worker's way to and
from the workplace.
CANADA
Alberta
(Act of 13 April 1918)
(1) Accident shall include a wilful and intentional act not being the
act of the workman, and
also a chance event occasioned by a physical
Dr natural cause.
Personal injury by accident arising out of and
in the course of the employment.
Accidents brought
about intentionally by
the injured person or
his survivor.
— 159 —
EXCLUDED FROM, WORKMEN'S COMPENSATION LEGISLATION
(COilt.)
omitted)
and injuries wholly or partly excluded
Attributable to misdemeanour, misconduct
or drunkenness
Attributable to gross
negligence or imprudence
or fault
Attributable
to other
circumstances
Accidents established
by a law court to be
attributable to a misdemeanour by the injured person.
Accidents and injuries
attributable to the
employer's fault
If the industrial accident was caused intentionally by the employer,
the injured person may
take proceedings against
the former, but the damages are limited to the
difference between the
amounts provided under
the civil law and the insurance act. — If the
accident was caused intentionally or through
gross negligence of the
employer, the insurance
institution is entitled to
recover from him all
expenses incurred by it
on account of the accident.
The employer is civilly
responsible and must
pay full damages for
accidents brought about
intentionally by him.
Cases of misconduct on
the part ol the worker.
•
"
Cases of force majeure,
except acts of the nature
brought about or facilitated by the establishment, by the nature or
circumstances of the
work.
The decree does not
exclude criminal proceedings under the common law.
"
When the accident was
caused intentionally by
the employer or was due
to a misdemeanour on
his part, or when he had
not observed the legal
prescriptions concerning
the protection and safety of workers, he is liable
under the Civil and
Penal Codes towards the
insurance fund.
Accidents attributable
solely to the serious and
wilful misconduct of the
workman, unless the injury results in death or
serious disablement.
Suits for damages not
permitted.
— 160 —
COMPARATIVE TABLE SHOWING THE RISKS COVERED BY, AND
(Occupational Diseases
Accidents and injuries covered
Countries
and Acts
General
definition
Special provisions
Ditto
(1) Ditto
(2) Where t h e accident
arose out of t h e employment, unless t h e cont r a r y is shown it shall
be presumed t h a t it
occurred in t h e course
of t h e employment, and
vice versa.
Manitoba
(Act 0 / 2 7 March 1920)
Ditto
(i) Ditto
(2) Ditto
New Brunswick
(.4cto/ 1918)
Ditto
CANADA (ami.)
British Columbia
{Act oí 31 May 1916)
Nova Scotia
(Act o/ 23 April
Accident
Attributable to
intentional
infliction
—
I n j u r y which in t h e
opinion of t h e Board
was intentionally caused
by t h e w o r k m a n .
Ditto
(2) Ditto
Ditto
(1) Ditto
(2) Ditto
1915)
Ontario
(Act of 1 May 1914)
Quebec
(Act of 29 May 1909)
Accidents happening
b y reason of or in t h e
course of t h e work.
Saskatchewan
(Act of 1911 and 1920)
Personal injury by accident arising out of and
in t h e course of t h e
employment.
Accident brought about
intentionally
by t h e
person injured.
I n j u r y or d e a t h resulting from t h e negligence
of a n y person engaged in
a common employment
w i t h t h e injured employee. — I n j u r y or d e a t h
caused by t h e negligence
of t h e employer, or of
a n y person in h i s service, or by reason of
any defect in t h e condition or a r r a n g e m e n t of
t h e w a y s , works, machinery, p l a n t , building or
premises. — I n j u r y or
death
due p a r t l y or
t o t a l l y t o t h e workm a n ' s own negligence or
misconduct •— I n j u r y
or d e a t h resulting from
a risk arising out of, or
incidental t o t h e n a t u r e
of t h e employment, and
which t h e w o r k m a n
expressly or implicitly
assumed.
— 161 —
EXCLUDED FROM WORKMEN'S COMPENSATION LEGISLATION
(COilt.)
omitted)
and injuries wholly or partly excluded
Attributable to misdemeanour, misconduct
or drunkenness
Attributable to gross
negligence
or imprudence
Attributable
to other
circumstances
Accidents attributable
solely to the serious and
wilful misconduct of the
workman, unless the injury results in death or
serious and permanent
disablement.
Ditto
Accidents and injuries
attributable to the
employer's fault
• Suits for damages under common law permitted only in respect
of employments not under Compensation Act, if
injury due to the employer's negligence. Defences abrogated.
—
Ditto
Injury which was wholly
or principally due to
a fortuitous event unconnected with the industry in which the
workman was employed.
Inj ury which was wholly
or principally due to
serious and wilful misconduct, or to intoxication, on the part of the
workman.
Ditto
Injury which is attributable solely to the
serious and wilful misconduct of the workman,
unless the injury results
in death or serious and
permanent disablement.
Ditto
Injury which is attributable solely to the
serious and wilful misconduct of the workman,
unless the injury results
in death or serious disablement.
Ditto
Accident due to the
inexcusable fault of the
workman : compensation
may be reduced.
Accident due to the
inexcusable fault of the
employer: compensation may be increased.
Suits for damages not
permitted.
Suits for damages permitted in lieu of compensation after injury.
II
— 162 —
COMPARATIVE
TABLE
SHOWING THE
RISKS COVERED
BY,
AND
(Occupational Diseases
Accidents and injuries covered
Countries
and Acts
CANADA
General
(cont.)
Yukon
(Ordinance
1917)
oj 24
definition
Ditto
April
8
September
Injury by accident occurring in consequence
of or directly in the
course of t h e employment.
COLOMBIA
(Act 0/ IS
1916)
NovemLer
Injury or p e r m a n e n t
functional d e r a n g e m e n t
arising out of or in t h e
course of t h e employment
CHILE
(Act oj
191G)
Special provisions
Accidents
Attributable to
intentional
infliction
Accident shall include a
wilful and intentional
act, not being t h e act of
t h e w o r k m a n , and a
fortuitous event occasioned by physical or
n a t u r a l cause. — Where
t h e accident arose out of
t h e employment, unless
t h e contrary is shown.
it shall be presumed t h a t
it occurred in t h e course
of t h e employment, and
vice versa. — Risks of
t h e employment assumed by t h e workman, and
injury or death proximately caused by t h e
contributory negligence
of t h e workman.
Accidents b r o u g h t a b o u t
intentionally
by
the
workman.
CUBA
(Act 0/ 12 June 1916;
Decree of 26 October
1917)
Bodily injury sustained
by t h e workman in t h e
course of or in consequence of t h e work performed on account of
another.
Accidents b r o u g h t abo.it
intentionally.
CZE CHOSLOVAKIA
(Austrian Acts; 28 December 1887, 20 July
1894,
30
December
1917.
Act oj 12 August 1921)
Accidents in undertakings subject to insurance.
Accidents due to t h e
Accidents brought about
performance,
by
t h e intentionally b y t h e inorder of t h e employer or
jured person.
on his behalf, of domestic
and other work outside
the employment subject
to insurance and in t h e
course of same. — Accidents occurring on t h e
way from t h e dwelling
of t h e workman to t h e
workplace and
back,
provided t h a t this way
was not interrupted in
the interest of t h e insured person or for any
other reason unconnected with his work.
— 163 —
EXCLUDED FROM, WORKMEN'S COMPENSATION LEGISLATION
(COTlt.)
omitted)
and injuries wholly or partly excluded
Attributable to misdemeanour, misconduct
or drunkenness
Attributable to gross
negligence
or imprudence
Attributable
to other
circumstances
Injury attributable solely to the serious and
wilful misconduct or to
the intoxication of the
workman.
Accidents and injuries
attributable to the
employer's fault
If the injury was caused
by the personal negligence or premeditated
act of the employer, the
workman may, at his
option, either
claim
compensation under the
Act or take proceedings
under common law.
Accidents due to force
majeure unconnected
with the work performed
by thé person injured.
Accidents due to violation of the rules of the
establishment.
Accidents due to the
fault, imprudence or
carelessness of the workman.
Accidents due to force
majeure outside of the
occupation, or sudden
attack of sickness preventing the use of mental or physical powers.
Accidents caused through Accidents caused through Accidents due to force
fraud or constituting a negligence or imprudence- majeure unconnected with
misdemeanour:
Com- Compensation to be fixed the work.
pensation fixed by the by the judge or law
court.
judge or law court.
Accidents due to an
inexcusable fault of the
employer or his substitute :
Compensation
may be increased. — The
Act does not exclude
claim for damages under
common law.
Accidents established by
a law court to be attributable to a misdemeanour committed by the
injured person.
If the industrial accident was caused intentionally by the employer,
the injured person may
take proceedings against
the former, but the
damages are limited to
the difference between
the amounts provided by
the common law and the
insurance act. If the
accident was caused
intentionally or through
gross negligence of the
employer, the insurance
institution is entitled
to recover from him all
expenses incurred by it
on account of the accident.
— 164 —
COMPARATIVE TABLE SHOWING THE RISKS COVERED BV, AND
(Occupational Diseases
Accidents and injuries covered
Countries
and Acts
General
definition
Special provisions
DENMARK
(Acts 0/6 July 1916 and
28 June 1920)
Accidents sustained by
insured persons in t h e
occupations contemplated in t h e Act. or arising
from t h e conditions under which they are
carried on.
Injurious effects lasting at most some few
days which a r e d u e to
t h e work or t h e conditions under which it is
carried on, and which
result in a reduction of
earning
capacity
or
d e a t h . — Accidents
shown to have been
caused by the insured
person's a t t e m p t to save
h u m a n life, to prevent
accidents, or to avert
serious loss of p r o p e r t y
or crops, provided it
occurs, w h e t h e r in o r
outside t h e workplace,
in connection w i t h such
occupation.
ECUADOR
(Act of 30
1921)
Bodily injury met with
by t h e worker or d a y
labourer by reason of,
in consequence of, or
during work which he
is doing on account of
another.
First aid even in case of
an accident d u e to a
fortuitous occurrence unconnected with t h e work,
if this occurs a t t h e
place where t h e work is
being performed.
September
ESTHONIA
(Russian Act, 23 June
1912)
Incapacity for work in
consequence of a bodily
injury caused by an
accident met with during
or in consequence of industrial work.
FINLAND
(Act o/ IS
August
1917; Act of IS August 1917, Seamen)
Occupational accident
(accident in work or in
service of ship).
FRANCE
(Act of 9 April 1S9S)
Accidents in consequence of, or during the
work.
Accidents
A t t r i b u t a b l e to
intentional
infliction
Accidents brought about
by t h e insured person
himself deliberately.
Accidents proved to
have been intentionally
brought a b o u t by t h e
injured workman himself.
Bodily injury m e t with
by t h e worker during
his stay at t h e workplace, provided t h a t this
stay was not forbidden.
— Injury met w i t h by
the worker outside t h e
workplace on his way,
on t h e orders of t h e employer, to or from t h e
workplace, provided t h a t
the w a y was particularly
hazardous, by reason of
t h e situation of t h e
workplace.
Injuries caused intentionally by t h e injured
workman.
Accidents intentionally
brought about by t h e
injured workman.
— 165 —
EXCLUDED FROM, WORKMEN'S COMPENSATION LEGISLATION
(cOilt.)
omitted)
and injuries wholly or partly excluded
Attributable to misdemeanour, misconduct
or drunkenness
Attributable to gross
negligence
or imprudence
Accidents
brought
about by the insured
person, or to the occurrence of which he has
contributed to an essential degree, by neglecting to observe regulations properly in force,
or by drunkenness : compensation may be reduced
or confiscated.
Accidents
brought
about by the insured
person, or to the occurrence of which he has
contributed to an essential degree, through gross
negligence: Compensation may be reduced or
confiscated.
Cases of manifest incompetence or reckless
imprudence on the part
of the worker.
Injuries through accidents occurring while
in the act of perpetrating
a misdemeanour.
Accidents proved to be
attributable to an inexcusable fault of the
workman: the pensions
may be reduced.
Attributable
to other
circumstances
Accidents and injuries
attributable to the
employer's fault
The injured workman
or his survivors may
establish a legal claim
under the common law
against the employer,
but are in such case not
entitled to claim at the
same time or later compensation under the Act.
When they have received
compensation under the
Act they have relinquished all right to take
proceedings under common law. The insurance
council may, however,
permit them also to sue
the employer in which
case they have to reimburse, so far as the damages suffice, to the
insurer
compensation
under the Act.
Cases due to force
majeure or some fortuitous occurrence unconnected with work.
Accidents met with
by seamen when on
leave or when leaving
the vessel without due
authorisation.
The insurance act does
not prevent the injured
person from claiming
damages under the common law, but the employer's liability is limited to the amount by
which compensation under common law exceeds
that of the accident
insurance.
Accident proved to be
attributable to an inexcusable fault of the employer or his substitute:
the benefits may be
increased.
Suits for
damages not permitted.
— 166 —
COMPARATIVE TABLE SHOWING THE RISKS COVERED BY, AND
(Occupational Diseases
Accidents and injuries covered
Countries
and Acts
General definition
Special provisions
GERMANY
{Insurance Code, 19
June 1911)
Accidents in establishments or activities which
are subject to insurance
according to the law
(industrial ac»idents —
Betriebsunfälle.). — Accidents during operations
(Seamen's insurance).
Acts which have been
forbidden do not exclude
the assumption of an
industrial accident. —
Accidents in household
or other service on the
orders of the employer.
— Accidents on ways
from the land to the vessel and inversely, accidents occurring during
service rendered by insured persons in connection with the rescue
or salvage of men or
goods, and accidents
caused by natural events
(Seamen's insurance). —
Accidents to German
seamen during free return transportation, or
transport granted in
accordance with the
Commercial or Navigation Code, or with
the law respecting the
obligation of vessels to
return seamen to home
ports. (Seamen's insurance).
GREAT BRITAIN
(Acts o/ 21 December
1906 and of 17 November
1923.)
Personal injury by accident arising out of and
in the course of the
employment.
Any accident caused to
a workman employed in
or about a mine who is,
with the consent of his
employer, being trained
as a member of the rescue brigade,»and arising
out of and in the course
of his training, shall be
deemed to arise out of
and in the course of his
employment in the mine
(Coal Mines Act, 19H).
Accidents resulting in
death or serious and permanent disablement shall
be deemed to arise out of
and in the course of employment notwithstanding that the worker was
acting in contravention
of regulations or orders
given by, or on behalf of,
or without instructions
from his employer, if such
act was done for the purposes of and in connection with the employer's
business.
Accidents
Attributable to
intentional
infliction
Accidents purposely
brought about by the
injured person or his
survivors.
— 167 —
EXCLUDED FROM, WORKMEN'S COMPENSATION
LEGISLATION
(COilt.)
omitted)
nd injuries wholly or partly excluded
Attributable to misdemeanour, misconduct
or drunkenness
Accidents brought about
by the
performance
of an act which according to the verdict of
the court is a crime or an
intentional misdemeanour: compensation may
be wholly or partly
denied. Contravention
of mining regulations
is not to be considered
as such intentional misdemeanour.
Injury proved to be
attributable to the serious and wilful misconduct of theworkman,
unless resulting in death
or serious and permanent
disablement.
Attributable to gross
negligence
or imprudence
Attributable
to other
circumstances
Accidents while not
on board contrary to
orders, and while on
land on leave for private
affairs (Seamen's insurance).
Accidents and injuries
attributable to the
employer's fault
If it has been determined by penal decision
that the employer or
his agents has purposely
caused the accident, the
employer is liable to
injured persons and their
survivors, but his liability is limited to the
amount by which compensation under common law exceeds that
of the accident insurance.— If it has been
determined by penal
decision that the undertaker has caused the
accident either purposely or negligently through
failure to observe such
care to which he is
obligated, then he is
liable for everything
which the several associations and funds have
had to expend because
of the accident. — Undertakers and persons of
equal status are liable to
the accident association
for its expenditures, even
if there has been no
determination by penal
decision.
When the injury was
caused by the personal
negligence or wilful act
of the employer or of
some person for whose
act or default the employer is responsible,
theworkman may either
claim compensation under the Act or take proceedings independently
of the Act.
— 168 —
COMPARATIVE TABLE SHOWING THE RISKS COVERED BY, AND
(Occupational Diseases
Accidents and injuries covered
Countries
and Acts
GREECE
(Acts 0/ 31 December
191i and 24 July 1920)
General definition
Accidents caused by
some violent occurrence
in the course of or in
connection with the
employment, entailing
incapacity for work.
GUATEMALA
Accidents met with by
(Decree of 21 November workers during work.
1906)
HUNGARY
(.Act ol 9 April 1907)
INDIA
(Act ol S March 1923)
Accidents in the performance of services
either by the order of
the employer or his
representative, or in the
interest of the establishment.
Accidents
Attributable to
intentional
infliction
Special provisions
Accidents deliberately
brought about by the
injured workman.
Accidents brought about
intentionally by the injured worker.
Accidents caused intentionally by the workman, unless fatal. —
Fatal accidents caused
intentionally by the
survivors.
Personal injury by accident arising out of and
in the course of the employment.
-
IRISH FREE STATE.
(British Act ol 21 December
1906)
Ditto
•
— 169 —
EXCLUDED FROM, WORKMEN'S COMPENSATION LEGISLATION
(COilt.)
omitted)
and injuries wholly or partly excluded
Attributable to misdemeanour, misconduct
or drunkenness
Attributable to gross
negligence
or imprudence
Attributable
to other
circumstances
If the accident was due
to fraud on the part of
the employer, or to nonobservation of legal prescriptions
concerning
safety and prevention
of accidents, the workman may, at his option,
either claim compensation under the Act, or
take proceedings for
damages.
Accidents proved to be
attributable to the injured workman's negligence :
compensation
may be reduced not more
than half. Such negligence is established only
in cases where the
workman has violated
without serious reasons
laws, decrees or regulations respecting safety, provided that these
rules were posted at the
workplace
—
—
Accidents and injuries
attributable to the
employer's fault
—
—
If the accident was
intentionally caused by
the employer, the injured workman or his
survivors may take proceedings against the
employer, but the damages are limited to the
imount by which compensation under civil law
exceeds that under the
accident insurance law.
— If the accident was
due to the intentional
act of the employer or to
non-observation by him
of the legal prescriptions
concerning the safety of
workers the employer is
liable to reimburse to
the insurance institution
all expenses entailed by
the accident.
Any injury resulting
from an accident directly attributable to the
wilful disobedience of
the workman to an
express order or rule
respecting safety, or
the wilful removal or
disregard of any safety
guard or device, or to
workman having been
at the time thereof
under the influence of
drink or drugs.
Injury proved to be
attributable to the serious and wilful misconduct of the worker, unless
resulting in death or serious ana permanent disablement.
Compensation under
the Act not paid to a
workman who has taken
legal proceedings under
the civil law against the
employer.
When injury was caused by
the personal negligence or
wilful act of the employer,
or of some person for whose
act or default the employer
is responsible, the workman may either claim compensation under the Act or
take proceedings independently of the Act.
— 170 —
COMPARATIVE T A B L E S H O W I N G T H E R I S K S COVERED B Y . AND
(Occupational Diseases
Accidents and injuries covered
Countries
and Acts
General
ITALY
(Acts of 17 March 1898
and 31 January
1904.
Acts of 23 August 1917
and 20 March 1921:
Agriculture.
Decree of 17 November
1918: Maritime transport.)
definition
AH cases of d e a t h or
bodily injury
arising
from accident due to
violent causes in connection with t h e employment and resulting in
incapacity for work (Industries). — All cases of
accidents due to some
violent occurrence in
connection with the employment, resulting in
death or incapacity for
work (Agriculture).
JAPAN
(Factory Act, 29 March
1923.
Health Insurance
Act,
22 April 1923.
Mining Acts of 3 August 1916 and 12 July 1924)
Any injury, illness, or
death arising out of and
in the course of the employment (Factory and
Mining Acts). Injuries
whether incurred in connection with employment or not (Health
Insurance Act).
LATVIA
(Russian Act, 23 June
1912; Decree of 14 January 1924)
Incapacity for work in
consequence of a bodily
injury caused by an
accident met with during
or in consequence of the
industrial work.
LITHUANIA
(Russian Regulation
2 June 1903)
LUXEMBURG
(Act of 5 April
Act,
1902)
NETHERLANDS
(Act of 2 January 1901;
Decree of 28 June 1921.
Act of 27 June 1919:
Seamen.
Act of 20 May 1922:
Agriculture)
Special provisions
Accidents occurring during t h e journey undert a k e n by a member of
t h e crew in order to
e m b a r k on t h e vessel,
or t o reach his home if
t h e engagement
has
been terminated elsewhere, provided t h a t he
has not departed from
the pre-arranged r o u t e .
without s u b s t a n t i a l reason (Maritime t r a n s p o r t )
Accident
A t t r i b u t a b l e to
intentional
self-infliction
Accidents occurring
through the wilful action
or fraud of t h e victim.
If compensation was erroneously paid, the insurer may institute an
action for recovery of
the sums paid against
the injured worker. A
criminal verdict shall be
the proof of the said act.
Persons causing danger intentionally are deprived of pension (Health
Insurance Act).
Accidents occurring in
t h e course of interruptions of t h e work.
Accidents proved to
have been intentionally
brought about by the
injured worker.
Incapacity for work in
consequence of injuries
directly caused by t h e
work performed for t h e
establishment or consequent upon such work.
Accidents a t t r i b u t a b l e
to an intentional fault
of the injured worker.
Accident sustained by
t h e insured person in
consequence of or in
t h e course of his work.
Injury or d e a t h intentionally brought about
by t h e injured workman.
Pecuniary consequences
of accidents with which
t h e workers meet in
connection with their
employment.— Accidents
in the service of t h e ship
(Seamen).
Any accident with which
the injured
workman
meets in
connection
with
his training in
consequence of an industrial accident.
Accidents wilfully caused
by the injured workman himself, or, in
respect to fatal accidents.
by one of his surviving
relations.
— 171 —
EXCLUDED FROM, WORKMEN'S COMPENSATION
LEGISLATION
(COnt.)
omitted)
nd injuries wholly or partly excluded
Attributable to misdemeanour, misconduct
or drunkenness
Attributable to gross
negligence
or imprudence
Attributable
to other
circumstances
Accidents and injuries
attributable to the
employer's fault
Civil responsibility shall
still lie against the person sentenced to a criminal penalty for the
act from which the accident resulted, and this
act constitutes a misdemeanour liable to public prosecution. Damages are not paid it they
could not exceed the
compensation under the
act, and when paid, they
are limited to amount by
which they exceed that
paid under the act. The
insurance institution is
entitled to recover the
sums paid on account
of the accident from
persons responsible under the civil law.
Persons causing danger
Injury, illness or death
through intentional crim- due to serious fault on
inal conduct or through the part of the injured
intentional disobedience miner (Alining Act).
to the instructions of
the supervisor respecting the prevention of
accidents, or through
drunkenness, are deprived, in the former
cases wholly, and in the
latter case, wholly or
partly, of the benefits
(Health Insurance Act).
Persons causing danger
through brawling shall
forfeit the whole or part
of the benefits (Health
Insurance Act).
Accidents attributable
to gross imprudence on
the part of the injured
worker not justified by
the conditions or circumstances in which the
work was being performed.
Accidents met with by
a workman while in the
act of perpetrating a
crime or intentional
misdemeanour.
Accident attributable
to the drunkenness of
the injured workman :
the' temporary allowance to be reduced by
half.
Fatal accident
caused by one of the
surviving relations
through drunkenness:
the said person has no
right to a pension.
—
—
The responsibility of the
employer remains unaffected in respect of
persons earning ove r 8 gulden per day. —
The employer shall not be relieved from his
civil responsibility if the accident is caused by
certain misdemeanour s, and if he is sentenced
to a penalty on ace aunt of this by a criminal
court. In assessing tl: e damages, compensation
received under the A 3t is taken into account.
— 172 —
COMPARATIVE TABLE SHOWIMG THE RISKS COVERED BY, AND
(Occupational Diseases
Accidents and injuries covered
Countries
and Acts
General definition
NEWFOUNDLAND
(Act of 18 February
1908)
Personal injury by accident arising out of and
in the course of the employment.
Special provisions
Accident
Attributable to
intentional
infliction
NEW ZEALAND
Personal injury by
arising out of
(Acts of 10 October 1908 accident
and
in the course of the
and 31 October 1922) employment.
NORWAY
(Act oí 13 August 1915:
Industry.
Act 0/ 16 February
1923: Seamen.
Act of 10 December
1920: Fishermen)
Accidents in establishments resulting in
bodily injury or death.
(Industries). •— Accidents causing bodily
injury or death, and
death caused indirectly
or directly by climatic
diseases or epidemics.
(Seamen). — Any accident which brings about
the injury or death of an
insured person (Fishermen).
Accidents occurring in
connection with conveyance from the shore
to the vessel and from
the vessel to the shore,
or journeys to and from
the vessel if made at
the expense of the shipowner or the Treasury.
(Seamen). — Death during an expedition for
whaling, wintering, etc.
in the Arctic regions,
irrespective of the cause
of death (Seamen and
Fishermen).
Accidents
purposely
caused by the injured
person himself: claim
to invalidity pension forfeited.
PANAMA
(Acts of 16 November
1916 and 30 December
1916)
Bodily injury directly
connected with the work.
—
Accidents intentionally
brought about by the
injured workman himself
Any accidents occurPERU
in the course of, or
(Acto/ 20 January 1911; ring
directly
Decree of 25 November the work.occasioned by,
1918)
Accidents shown to
have been intentionally
brought about by the
injured person.
— 173 —
EXCLUDED FROM, WORKMEN'S COMPENSATION
LEGISLATION
(COUt.)
omitted)
and injuries wholly or partly excluded
Attributable to misdemeanour, misconduct
or drunkenness
Attributable to gross
negligence
or imprudence
Attributable
to other
circumstances
Accidents and injuries
attributable to the
employer's fault
When the injury was
caused by the personal
negligence orwilful act of
the employer, the workman may, at his option,
either claim compensation under the Act or
take proceedings independently of it.
Injury attributable to
the serious or wilful
misconduct of the workman.
Incapacity or death due
to personal injury, if the
worker has in writing
falsely represented to
the employer that he
was not suffering or had
not previously suffered
from the said injury.
Injury attributable to
the serious and wilful
misconduct of the worker unless the injury
results in death or serious and
permanent
disablement.
Nothing in the Act
affects the civil liability
of employer. Damages
payable by the employer
shall be deducted from
compensation, and vice
versa.
Accidents involve the
personal liability of the
employer and his representative when it is
proved by a criminal
conviction that the person in question has
caused the injury purposely or through gross
negligence. In so far as
the insurance institution
has incurred expenses
on account of such accident, the claim of the
workman is transferred
to it.
Accidents due to a
criminal act attributable to the injured workman.
—
Accidents arisen through
an inexcusable fault on
the part of the victim:
Compensation to be reduced in proportion.
Accidents occasioned by
extraneous forces and
without any relation to
the work performed by
the injured workman.
The workman is entitled to take suits for
damages, but such action
excludes compensation.
under the Act.
If the accident has
arisen through an inexcusable fault on the part
of the employer or his
representative, the compensation shall be suitably increased. — If the
accident is the result of
an unlawful act on the
part of the employer, the
injured person is entitled to full damages
as determined at common law.
— 174 —
COMPARATIVE
T A B L E S H O W I N G THE R I S K S C O V E R E D
(Occupational
Accidents and injuries covered
Countries
and Acts
General
POLAND
Former Austrian and
Russian Territories
(Austrian Acts: 28 December 1887, 20 July
1894,
30
December
1917.
Act of 30 January 1924.
Decree of 7 June 1924)
definition
Accidents in
t a k i n g s subject
surance.
underto in-
Former German
Accidents in establishTerritory
m e n t s or activities sub( German Insurance Code, ject to insurance (in19 June 1911
dustrial accidents).
Decrees of 1919, 1920,
1921, 1924.)
Special provisions
Attributable to
intentional
infliction
Acts which have been
forbidden do not exclude
t h e assumption of industrial accident. — Accidents in household or
other service on t h e
orders of the employer.
Ditto
ROUMANIA
(Acts of 25
January
1912, S
February
1913, 2 July 1924)
Injury by
accident.
Compensation to be
paid without investigaing w h e t h e r t h e accident
has been caused by
force majeure or t h r o u g h
t h e fault of t h e victim.
RUSSIA
(Decree of lö November 1921;
Labour
Code, of 1922)
All risks incidental both
to t h e occupational work
and to common life.
industrial
Accidents
Accidents brought a b o u t
intentionally by the injured person.
Industrial
accident
shall m e a n : a n y external or internal injury,
and any nervous or
psychical p e r t u r b a t i o n ,
due to t h e action of an
exterior violent cause
during t h e employment ;
and acute intoxications
in t h e course of t h e employment and due to t h e
same, as well as occupational inflammations.
May
AND
Diseases
Accidents due to t h e
performance b y t h e order of t h e employer or
on his behalf of domestic
and other work outside
t h e employment and in
t h e course of t h e same.
— Accidents occurring
on t h e way from t h e
dwelling of t h e workman to t h e workplace
and back, provided t h a t
t h i s way was not interrupted in t h e interests
of the insured person or
for any other reason unconnected with t h e work.
I n d u s t r i a l accidents d u e
to t h e exercise of t h e
occupation and resulting in illness, incapacity
for work, or d e a t h . —
An accident occurring in
t h e course of t h e work
is considered, u n t i l t h e
contrary is shown, as
being due to t h e exercise
of t h e occupation.
PORTUGAL
(Decree of 10
191»)
BY,
Accidents caused intentionally : the employer shall be entitled t o
submit t h e case for
investigation.
— 175 —
EXCLUDED FROM, WORKMEN'S COMPENSATION LEGISLATION
(COilt.)
omitted)
and injuries wholly or partly excluded
Attributable to misdemeanour, misconduct
or drunkenness
Attributable to gross
negligence
or imprudence
Attributable
to other
circumstances
Accidents and injuries
attributable to the
employer's fault
Accidents established by
a law court to be attributable to a misdemeanour committed by the
injured person.
If the accident was
caused intentionally by
the employer, the insured person may take
proceedings against the
former whose liability is
limited. — If the accident was caused intentionally or through gross
negligence of the employer, the insurance
institution is entitled to
recover from him all
expenses incurred by it
on account of the accident.
Accidents brought about
by the performance of
an act which according
to the verdict of the
court is a crime or an
intentional misdemeanour: compensation may
be wholly or partly
denied.
If the accident was
caused purposely by the
employer, he is liable to
the injured person and
his survivors to limited
extent. — If the. accident was caused by the
employer either purposely or negligently
through failure to observe due care, he is
liable for everything
expended by the insurance institutions because of the accident.
Accidents proved to
have been brought about
criminally by the injured workman. •
If the accident has been
intentionally
brought
about by the employer
or his representative,
the compensation is increased to the amount
of total wages, without
prejudice to the other
responsibilities of the
employer.
Illness or injury attributable to drunkenness :
the injured workman
forfeits his right to sick
money and is treated in
hospital.
If the accident was
caused wilfully or negligently by the employer,
the insured person and
the insurance institution
are entitled to sue the
former (Civil Code of
1922).
— 176 —
COMPARATIVE TABLE SHOWING THE RISKS COVERED BY, AND
(Occupational Diseases
Accidents and
Countries
and Acts
General
definition
njuries covered
Special provisions
SALVADOR
(Act of 11 May 1911)
Bodily injury b y accident in t h e course of or
in consequence of t h e
work performed on account of another.
A n y injury in consequence of t h e direct or
i m m e d i a t e manipulation
of toxic substances.
S ERB-CROATSLOVENE KINGDOM
(Acl of li May 1!>22)
Loss caused b y bodily
injury or d e a t h in consequence of any accident
met with in connection
with work or duties in
which t h e workman was
engaged b y order of t h e
employer or his representative or in t h e interest of t h e undertaking.
— Accidents to seamen
. in connection with their
work on a national vessel (Inland navigation).
Accident met with on
the way from t h e dwelling t o t h e workplace and
back, provided t h a t t h e
journey was not interrupted on t h e workman's
own account o r for
reasons unconnected
with t h e employment.
— Accidents to national
seamen w i t h o u t means
met with on their wayhome or when t a k e n on
board a national vessel
(Inland navigation).
SOUTH AFRICA
(Acl of 1 July 1914)
Personal injury resulting in incapacity or
d e a t h , caused b y accident. and arising out of
and in the course of t h e
work.
Accidents in, a t , or
about a n y mine or
works, while, w i t h t h e
consent of t h e employer,
being trained in first aid,
ambulance or rescue
work, or engaged in any
connection therewith,
and while engaged in
any first aid, ambulance
or rescue work, shall, if
resulting in personal injury, be deemed t o arise
out of and in t h e course
of t h e work for t h e
employer.
SPAIN
(Act of 10
January
1922)
(Regulation of 29 December 1922)
Physical injury met
with by workers by
reason and in t h e exercise of, or during work
which he is performing
on account of another.
Case of t h e imprudence
of an experienced worker, i.e. t h a t which is a
result of t h e habitual
performance of work. —
I n d u s t r i a l incapacity r e sulting from hernia.
Accidents
Attributable to
intentional
infliction
I n j u r y wilfully incurred
by t h e injured person,
except in t h e case-of a
fatal accident where t h e
family of t h e deceased
receives t h e benefits. —
I n t h e case of d e a t h wilfully caused by a relative
of t h e injured person,
t h e former forfeits t h é
right to compensation.
Damage or loss caused
by fraud.
— 177 —
EXCLUDED FROM, WORKMEN'S COMPENSATION LEGISLATION
(CO/lt.)
omitted)
and injuries wholly or partly excluded
Attributable to misAttributable to gross
demeanour, misconduct negligence
or imprudence
or drunkenness
Accidents brought about
by manifest negligence
or serious imprudence
on the part of the injured workman.
Accidents proved to be
attributable to the workman's serious and wilful
misconduct, which means
(a) drunkenness, (ft) a
deliberate or reckless
contravention of any
law or statutory regulation respecting the safety or health of the workmen, and (c) any other
act or omission as
judged by the magistrate
or court of law.
•
Damage, or loss caused
by imprudence or negligence constituting an
offence or fault under
the Penal Code.
Attributable
to other
circumstances
Accidents and injuries
attributable to the
employer's fault
Accidents due to force
majeure or a fortuitous
event unconnected with
the work in the course
of which the accident
occurred.
The civil responsibility
of the employer subsists
when the accident was
consequent upon a misdemeanour or fault on
his part. Compensation
under the Act paid only
if claim for damages
was not admitted.
Accidents to seamen
without means met with
while away from the
vessel on leave or without permission (Inland
navigation).
The employer is personally liable for accident if it is established
by a penal verdict that
he is to blame for it.
Compensation cannot be
claimed beyond the amount by which damages exceed compensation.-If the employer or
his representative wilfully caused the accident,
or if the accident is attributable to the failure
of the employer or his
representative to take
the prescribed precautions, he shall repay all
expenses to the insurance institution.
Accidents which would
not have occurred, or incapacity or death which
would not have been
caused, but for a preexisting diseased condition of the workman,
such condition being
unknown to the employer. Death or incapacity resulting from
personal injury, if the
workman had falsely represented to the employer that he was not
suffering or had not previously suffered from
that or a similar injury.
When the injury was
caused by the wilful act
or serious fault of the
employer or of some person for whose act he is
responsible, the workman may, at his option,
either claim compensation under the Act or
take proceedings independently of it.
Accidents due to force
majeure
unconnected
with the employment
in which the accident
occurred. Force-majeure
includes any force of
nature unconnected with
the work.
Compensation is increased by half if the
accident occurred in an
establishment not fitted
with the safety devices.
If the accident was
caused by the fraud, imprudence or negligence
of the employer and the
case constitutes a misdemeanour or fault according to the Penal
Code, the workman has
the right to sue the employer for full damages.
12
—
178 —
COMPARATIVE TABLE SHOWING THE RISKS COVERED BY, AND
(Occupational Diseases
Accidents and injuries covered
Countries
and Acts
SWEDEN
(Act of 13 June 1911)
URUGUAY
(Act of 15 November
1920)
Attributable to
intentional
infliction
General definition
Special provisions
Occupational accidents
(accidents in work).
Accidents occurring
during a journey to or
from the workplace,
provided that the journey is necessitated by
and directly connected
with the employment.
Accidents wilfully
caused by the injured
person. — Fatal accidents
caused by the wilful act
of any of the survivors.
Risks of occupational
and non-occupational
accidents followed by
illness, invalidity, or
death.
Every bodily injury
suffered by an insured
person is reckoned as an
occupational accident,
if received ;
(1) in the course of
work performed by him
under direction of the
head of the enterprise,
or one of his agents;
(2) in the course of a
service undertaken by
him in the interest of
the enterprise and with
the presumed assent of
the employer or his representative;
(3) during an interruption of work, and before
and after work, while he,
without a fault on his
part, happens to Be
either on the premises
or in the danger zone of
the enterprise.
Any other bodily injury is reckoned as a
non-occupational accident.
Accidents caused intentionally by the insured
person or by a survivor
of the deceased person,
except in respect to
funeral benefits.
Accidents met with by
the workmen owing to
their work or in connection therewith.
Accidents occurring in
domestic work and other
services which the employers may require of
their employees in establishments owned by
them. Accidents occurring through fault, whether trifling or serious,
on the part of the injured worker. •— Accidents
due to some chance event
or force majeure.
(Acts 0/ 17 June 1916
and 19 June 1919)
SWITZERLAND
Accident
— 179 —
EXCLUDED FROM, WORKMEN'S COMPENSATION LEGILATION
(COHCld)
omitted)
nd Injuries wholly or partly excluded
Attributable to misAttributable to gross
demeanour, misconduct negligence
or imprudence
or drunkenness
Accidents caused by the
injured person being
under the influence of
intoxicating drink : compensation may be reduced.
Accidents caused by
misconduct on the part
of the workman.
Attributable
to other
circumstances
Accidents and injuries
attributable to the
employer's fault
Accidents caused by the
failure of the injured
person to comply with
instructions or regulations concerning prevention of accidents and
he was guilty of gross
carelessness. Compensation may be reduced. —
Fatal accidents caused
through the gross negligence of any of the survivors : compensation
not paid.
The injured person is
not prevented from enforcing a claim of damages over and above the
compensation due to him
in consequence of accident, under the common
law or special regulations. — If the accident
was wilfully caused by
the employer, the insurance Institution is entitled to reclaim what it
has paid under the Act.
Accidents caused by
serious fault on the
part of the insured person: the benefits (other
than the funeral expenses) to be reduced to a
proportional extent. —
Fatal accidents caused
by the serious fault on
the part of a survivor:
compensation not paid.
The employer is civilly
responsible only if he
caused the accident intentionally or by grave
fault.
Accidents due to force
majeure
unconnected
with the work, provided
that
the
employer
proves that the accident
was produced by this
cause.
When the accident occurred through a criminal
act on the part of the
employer, the worker
may take proceedings
against the former.
PART TTÏ
COMPENSATION
The principle of occupational risk, constituting the basis of
practically all workmen's compensation legislation, imposes on
the employer the responsibility for repairing the economic loss
entailed by industrial accidents upon the victims or their dependants.
The economic loss resulting from an accident may consist, on
the one hand, of the total or partial loss of earnings, and, on the
other, of the exceptional expenditure incurred on account of medical and surgical attention, drugs, hospital treatment, and funeral
costs.
One element, that of exceptional expenditure, is easy to compute; it is simply a total of fees and bills. The other element,
that of the loss of wages caused by the accident, is, on the contrary,
very difficult to determine.
The actual loss is directly proportional to the wages which
the injured workman would have earned if the accident had not
occurred, i.e. to the duration and the many other conditions of his
industrial career. In practice the future is deemed to resemble
the past, and the laws fix the amount of compensation in the cases
of death and incapacity according to the wages of the victim at
the time of the accident or during a shorter or longer period preceding the accident.
The subject of compensation will be examined as follows:
(1) The basic wage;
(2) The form of compensation;
(3) Compensation in case of death;
(4) Compensation in case of incapacity for work ;
(5) Medical aid.
CHAPTER I
THE BASIC WAGE
The basic wage is the wage from which is calculated the compensation payable to accident victims or their dependants; it
should therefore measure as accurately as possible the loss which
the workman has suffered.
In case of permanent total incapacity, the loss is the total amount
of wages which the workman would probably have earned in his
occupation if the accident had not occurred.
In case of death the loss is the difference between the total
amount of wages which the workman would probably have earned
and the portion of that total which corresponds to the workman's
own consumption.
In case of partial incapacity, the loss is the difference between
the total amount of wages which the workman would have received
if he had not been incapacitated and the total amount of his earnings during the period of incapacity.
The evaluation of the economic loss involves a forecast of the
workman's future in his trade. An accurate forecast is of course
impossible. The total amount which the workman will earn in
the course of his life depends on his wage, bis occupation, his degree
of skill, the regularity of his employment, and the movement of
the rate of wages. While statistics enable the normal duration
of working life at each age to be approximately calculated, it is
yet impossible to foresee fluctuations in wage rates and the cost
of living, or interruptions of employment due to general or partial
crises in production, or due to labour disputes.
The impossibility of forecasting future wages renders it necessary to take as the basis of calculation the only factor available,
namely the wages of the workman at the time of the accident or
during a certain period previous to the accident. Such is the system
adopted in all laws save the British law, which makes provision
for the correction of the basic wage in accordance with future
fluctuation in wage rates (see page 274).
It is, however, not always exactly the regular earnings of the
workman which is the basis for calculating compensation; for in a
— 183 —
large number of laws his earnings are subject to maximum and
minimum limits.
This .system, whereby the future is deemed to resemble the past,
may be acceptable for a workman whose industrial training is
completed and whose known earnings are fairly representative of
the earnings which he might expect under normal conditions. The
situation is different for an apprentice who receives a very low
wage or none at all. In this case, therefore, a special basic wage
is required.
From these considerations it results that the problem of the
basic wage includes the examination of the four following questions :
(1) The elements composing the basic wage;
(2) The mode of computing the basic wage;
(3) The limits of the basic wage;
(4) The basic wage of apprentices.
§ 1. — The Elements Composing the Basic Wage
In general, the definition of wages for the purpose of workmen's
compensation corresponds with the ordinary meaning of the term :
it means the price of labour and includes every valuable consideration which forms part of that price. This is the widest definition ;
it covers, unless the contrary is stated, payments received not
only from the employer but from third parties. An important
essential of any element of the basic wage would seem to be it
regular character, which enables it to be counted upon by the workman. Nowhere does a law expressly exclude payments in kind,
and it may be safely assumed that they are to be reckoned as part
of the basic wage in the case of laws where there is no provision
to that effect.
It is obviously necessary that, in order that any element of remuneration may be included in the basic wage, it must be capable
of being estimated in money. The Indian Act is explicit to this
effect; and in Great Britain, for instance, it has been decided that
the value of tuition to an apprentice is not capable of being estimated in money and is therefore not part of the basic wage. Many
laws specify that the money value of payments in kind is to be
determined according to local prices (Brazil, Chile, Cuba, Czechoslovakia, Denmark, Finland, Germany, Italy, Netherlands, Norway,
Poland (former German territory), Serb-Croat-Slovene Kingdom,
Spain, Sweden, Uruguay):
— 184 —
Shares in profits are expressly included in the definitions of the
basic wage contained in the laws of Austria, Chile, Czechoslovakia,
Denmark, Esthonia, Finland, France, Germany, Latvia, Luxemburg,
Norway, Poland, the Serb-Croat-Slovene Kingdom, and Sweden.
The Courts in France and Great Britain have decided that they
are to be included. But though not expressly included in all definitions shares in profits, like payments in kind, are nowhere expressly excluded and in practice are generally admitted by the
Courts as part of the basic wages in those countries where they
find no mention in the laws.
The inclusion of gratuities from third parties (tips) in the basic
wage seems to be almost equally universal. In several countries,
however, it is expressly provided or has been decided by the Courts
that gratuities will only be included if they are of a regular character
or if they affect the amount of remuneration agreed upon (Austria,
Chile, France, Great Britain, Netherlands, Serb-Croat-Slovene King-'
dom, Spain, Switzerland, Uruguay). In India such gratuities would
be excluded, as the rules for computing the basic wage allow only
for the inclusion of wages due from the employer.
The treatment of family allowances is not identical in all countries. It has been argued against their inclusion in the basic wage
that they do not represent a payment in respect of services rendered but in respect of family responsibilities, and that they are
a form of liberality and therefore distinct from wages. Nevertheless,
in the Serb-Croat-Slovene Kingdom they are expressly included in
the basic wage. In France the lower Courts have disagreed on
the matter; the Court of Appeal in two decisions dated 2 May
and 6 November 1923 found that family allowances are to be
considered as part of wages whenever they are mentioned in the
contract of service or in the workshop regulations.
Differences are to be noticed too in the practice with regard
to payment for overtime. It is specifically included in Chile, France,
and Queensland; in Spain its inclusion is subject to its being of a
regular character and in South Africa to its being both regular and
performed at the ordinary rate of wages. In the Serb-Croat-Slovene
Kingdom it appears to be excluded.
A certain number of laws merely indicate what elements are not to
be taken into account in computing the basic wage. Such is the case
for Alberta, the Australian Commonwealth, Great Britain, Irish Free
State, Newfoundland, New South Wales, New Zealand, Ontario,
South Australia, Tasmania, Victoria, and Western Australia. In
these countries, as also in Queensland and South Africa, the laws
— 185 —
provide that sums paid by the employer to the workman to cover
any special expenses entailed on the workman by the nature of
his work are to be excluded.
The laws of several countries do not give any definition of the
composition of the basic wage (Argentina, Belgium, Bolivia, Brazil,
British Columbia, Ecuador, Guatemala, Hungary, Manitoba, New
Brunswick, Nova Scotia, Panama, Peru, Portugal, Roumania,
Saskatchewan).
§ 2. — The Mode of Computing the Basic Wage
The basic wage is intended to be computed in such a manner
as best to measure the economic loss suffered by the workman
in consequence of the incapacity for work resulting from the injury.
It is assumed, in the case of adults at least, that they would have
continued to earn in the future what they earned in the immediate
past. Simple enough in the case of a workman whose rate of earnings is approximately invariable for a long period, the computation
may become difficult where the workman has recently changed
his grade, or the level of wages has been altered, or the activity
of the undertaking has varied in intensity, or the trade is a purely
seasonal one, or accidental interruptions in the operation of the
undertaking have occurred, and so on. The variety of possible
cases is limitless; they admit, however, of approximate assimilation to a few principal types capable of being provided for in legislation. The latter has indeed to furnish a guide for the solution
of all the problems which may arise, but it cannot contemplate
the details of every individual case. Legal rules for computation
are thus a compromise reconciling theory, intent on ascertaining
accurately the economic loss to the workman, and practice, desirous of simple and expeditious methods.
The subject will be treated in the following order:
We shall consider, in turn
(1) The methods of computation adopted in the countries —
by far the greater number — where the basic wage is calculated
from earnings during the year's employment, examining also how
the cases of employment over a shorter period or intermittent
employment are dealt with in these countries.
(2) The methods used in the few countries where the period
over which earnings are averaged is other than a year, or where
the basic wage is fixed independently of actual earnings.
(3) The computation of the basic wage for temporary incapacity
where special provisions exist for that purpose.
— 186 —
COMPUTATION
IN
COUNTRIES
WHERE
P E R I O D OVER WHICH
EARN-
I N G S ARE AVERAGED IS NORMALLY ONE YEAR
In the great majority of countries it is the rule to compute the
basic wage from the earnings of the injured workman in the undertaking in which the accident occurred during the year preceding
the accident if he was so long employed there; but if he were employed for a shorter period, earnings may be averaged over such
period and regard may or may not be had as well to the earnings
of similar workmen during the remainder of the year (Alberta,
Argentina, Australian Commonwealth and States, Belgium, Chile,
Cuba, Czechoslovakia, Denmark, Esthonia, Finland, France,
Germany, Great Britain, Greece, India, Irish Free State, Italy,
Latvia, Lithuania, Luxemburg, Newfoundland, Norway, Ontario,
Peru, Poland, Portugal, Quebec, Roumania, Serb-Croat-Slovene
Kingdom, South Africa, Spain, Sweden, Switzerland, Uruguay).
(i) / / Workman has been Employed for one Year in
Undertaking in which Accident occurred
In this case the basic wage may be total earnings during the year:
this procedure is followed in the majority of countries under consideration. In the absence of special provisions to the contrary
(described below under (hi)) the basic wage as thus calculated is
adversely affected by abnormal interruptions of work, and favoured
by periods of exceptional activity.
On the other hand, the basic wage may be average daily earnings of the injured workman for the days on which he worked
multiplied by some figure representing the number of days on which
the undertaking may be presumed to have operated during a
normal year; under this method the effect of accidental interruption, as well as of unusually intense employment, is eliminated
from the computation. Such is the practice in Czechoslovakia,
Germany, Poland, and the Serb-Croat-Slovene Kingdom where a
continuously operated undertaking is presumed to work on 300
days in the year, and in Esthonia, Latvia and Lithuania, where
it is presumed to work on 295, 280 and 260 days respectively.
Slight variations of this method are encountered in Italy, Netherlands, and Roumania. In the Netherlands the basic wage is a
daily rate obtained by dividing the workman's actual earnings
by the number of days on which he worked, but not more than
313. In Roumania the basic wage is an annual rate obtained by
multiplying average earnings for the days on which the workman
was at work by the actual number of days on which the under-
— 187 —
taking was operated, subject to a minimum of 300. In Italy the
basic wage is actual earnings during the year, but not less than
300 times average daily earnings for the days on which the
workman was at work.
(ii) // the Workman has been Employed less than one Year in the
Undertaking in which the Accident occurred
For this case the laws provide one, or frequently two, alternative
methods of computation to be used instead of those described
above under (i). The two methods, while they each admit of variation in detail are essentially different. The first method assumes
that the earnings of workmen similar to the injured may fairly
be taken into account in computing the basic wage. The assumption made in the second method is that the basic wage can, at least
in certain circumstances, be calculated with sufficient exactitude
from the earnings of the injured during that portion of the year
in which he was employed.
In certain countries one or other of these methods is applied
not only when the workman has been employed for less than a
year, but when the workman has changed his grade of employment (e.g., promotion) less than a year previous to the accident
(Alberta, Australian Commonwealth and States, Denmark, Great
Britain, Irish Free State, New Zealand, Ontario); likewise, in
South Africa, if a change takes place during the year in the terms
of remuneration.
The first method, in greater detail, is to compute the basic
wage of the injured workman by having regard to the earnings
of similar workers either
(1) throughout the year before the accident (Alberta, Australian
Commonwealth and States, Czechoslovakia, Great Britain, Irish
Free State, Netherlands, New Zealand, Norway, Ontario, Poland
(former Austrian and Russian territories), South Africa, Uruguay),
or
(2) during the earlier portion of the year before the workman
became employed in the undertaking (Belgium, France, Germany,
Greece, Poland (former German territory), Portugal, Quebec,
Roumania, Serb-Croat-Slovene Kingdom, Sweden, Switzerland).
The similar workman, from whose earnings the basic wage of
the injured workman is to be calculated, must generally be of the
same class, and have been employed in the same undertaking, or
in a similar neighbouring undertaking. Minor differences of phrase
are found in various legislations on this point, making the definition
— 188 —
narrower or wider. For example, the British law provides that the
similar workman shall be a person in the same grade, employed
at the same work or in the same class of employment, while the
French law makes no reference to the place of employment of such
workman and merely specifies that he must be of the same class
as the injured.
The second method is to deduce the basic wage from the earnings
of the injured workman during the portion of the year for which
he was employed in the undertaking: in general, the basic annual
earnings as thus calculated bear the same proportion to earnings
during the period of employment as the year does to the period,
or (in countries where the year is presumed to contain a certain
number of working days) as the number of working days in the
year does to the number of days on which the workman was at
work. Evidently, where the period of employment is short and
earnings fluctuate considerably, the basic wage calculated on this
method is liable to serious error. Hence it is usually provided as
an alternative to the first method. The majority of countries
which use it do so only in cases where it appears to yield an equitable average rate of earnings; in other cases they have recourse
to the first method (Alberta, Australian Commonwealth and States,
Great Britain, Irish Free State, Newfoundland, New Zealand,
Ontario, South Africa). In Germany, Poland (former German
territory), and Uruguay, where both methods are also admissible, the second method is only used if it should be impossible
to apply the first.
There are several countries which provide for the use of the second
method only (Argentina, Chile, Esthonia, Finland, India, Italy,
Latvia, Lithuania, Luxemburg).
(iii)
If the Workman has been employed in a seasonal undertaking
or intermittently during the year
We have considered so far as concerns those countries in which
the basic wage is normally annual earnings the case of workmen
employed for a year or less in an ordinary undertaking. We now
pass to examine the procedure for computing the basic wage in
other less usual conditions, namely, where the workman was
employed in a seasonal industry, or where his work was interrupted
owing to sickness or intermittent operation of the undertaking.
Seasonal, undertakings. — Examples of three solutions to the
problem of computing the basic wage of workmen who are employed
only for a season of the year are to be found in the different laws.
— 189 —
The first solution is to regard the seasonal workman in the same
way as a workman employed for a portion of the year in a continuous undertaking, and to compute his basic wage as though
his earnings during the active season were typical of his earnings
during the dead season. This solution has the merit of simplicity
and is decidedly generous to the workman (Austria, Czechoslovakia,
Poland (former Austrian and Russian territories), and Portugal).
The second solution is to add together the workman's earnings
during the operation of the undertaking and whatever he may have
been able to earn elsewhere during the dead season. Although,
theoretically, the result obtained by this method would express
more accurately the average earnings of the workman, yet, in
practice, the earnings during the dead season must be very difficult
to ascertain (Belgium, Cuba, France, Great Britain, Greece, Quebec,
Switzerland). The Swiss law provides that the average rate of
earnings outside the undertaking may, in no case, exceed the average
rate of earnings inside it.
The third solution is to determine the basic wage by reference
to an arbitrarily fixed scale of wages, applicable to the workman's
occupation. In Italy, tables of average or customary wages are
drawn up for use as basic wage rates for classes of undertakings
in which work is seasonal or intermittent. In Norway, the basic
wage of seasonal workers is not less than the customary wages of
workers of the same age and sex in the same district. It may be
relevantly observed that in several countries the basic wage of
agricultural workers is fixed by authority (France, Germany,
Poland (former German territory)).
A combination of the second and third solutions is met with in
Esthonia, Germany, Latvia, Lithuania, Poland (former German
territory), and Roumania. In these countries the basic wage of
seasonal workers is computed from their earnings while employed
in the undertaking and, for the remainder of the year, from the
daily wage of labourers, which is determined periodically for
workers' insurance purposes by authority.
In the remaining countries the determination of the basic wage
of seasonal workers is either left to the discretion of the State
Insurance Institution (Denmark, Finland) or is effected according
to the methods applicable to a workman employed for less than
a year, the laws containing no specific mention of the case of
seasonal employment.
Accidental or abnormal interruptions of work. — When the workman has been unemployed during part of the year owing to illness,
— 190 —
holidays, closing of the undertaking on account of trade depression,
stocktaking or a fire, the important question arises how far these
interruptions are to diminish the basic wage.
The problem is solved very simply in those countries where the
basic wage is computed b y multiplying the average earnings of
the workman for the days on which he worked by the presumed
number of working days in the year: here no interruption from
whatever cause can affect the basic wage (Czechoslovakia, Esthonia,
Germany, Italy, Latvia, Lithuania, Netherlands, Poland, Roumania,
Serb-Croat-Slovene Kingdom).
The case is otherwise in those countries where, in principle, the
basic wage is computed from actual earnings averaged over the
whole year : here special provision is required to distinguish between
interruptions which are allowed to influence the basic wage and
those which are not. The New Zealand law, by providing that
absence from work due to whatever cause shall not operate to
reduce the basic wage, in effect solves the problem in the same
way as the laws of the countries mentioned in the preceding
paragraph. In other countries, on the contrary, a distinction
appears to have been drawn between abnormal and normal causes
of interruption, the consequent loss of earnings being allowed for
or not respectively in the computation of the basic wage. In
Alberta, Australian Commonwealth and States, Great Britain,
Irish Free State, Newfoundland and Ontario, the law provides
that absence from work, due to illness or other unavoidable cause,
must not operate to reduce the basic wage. The Courts in Great
Britain have decided that a breakdown or a fire in the undertaking,
as well as illness, are such unavoidable causes, but t h a t stoppages
due to trade holidays, bad trade and stock-taking and shorttime employment, are normal incidents, in respect of which no
allowance can be made. The French law makes allowance for
exceptional unemployment due, e.g., to illness, repairs to the
factory, exceptionally bad trade.
Exceptional unemployment is
allowed for in Greece, and illness in Luxemburg and Switzerland.
COMPUTATION IN COUNTRIES WHERE PERIOD FOR WHICH EARNINGS
ARE AVERAGED IS OTHER THAN ONE YEAR
There are a few countries in which the basic wage is not normally
computed from the earnings of the workman during the preceding
year but from earnings during a shorter or even a longer period.
Thus, in Brazil and Peru, the basic wage is a yearly rate obtained
— 191 —
by multiplying by 300 the earnings of the workman on the day
of the accident. In Japan (Factory Act), if a workman is paid
a fixed sum annually or monthly, the basic wage is a daily rate
obtained by dividing such sum by 360 or 30; if, however, he is
paid at a time-rate, the basic wage is earnings during the month
preceding the accident. The basic wage is also earnings during
the preceding month in Bolivia and Hungary. In Austria a yearly
rate is computed from earnings during the three months preceding
the accident. The rules adopted in certain Canadian laws are very
elastic, much discretion being left to the administrative authority;
the basic wage may be computed from earnings at the time of the
accident, or from earnings during one or more years preceding it,
or from probable earning capacity at the time of the accident
(British Columbia, Manitoba, New Brunswick, Nova Scotia).
In some countries fixed basic wages are prescribed for certain
industries or localities, or for workmen of different ages. Under
this method the fixed basic wage is attributed to the workman
without regard to his actual rate of earnings or to the length of
his employment. Such fixed basic wages are obtained by averaging and are revised from time to time. They can be applied in
cases where actual earnings would be difficult to determine, or
where there is little difference between the earnings of individual
workmen. Thus, fixed basic wages are laid down for agricultural
workers in France, Germany, and Poland (former German territory), and for fishermen in Norway.
BASIC WAGE FOR TEMPORARY INCAPACITY
Compensation for temporary incapacity is usually fixed at a
daily rate, whereas compensation for permanent incapacity and
death is usually in the form of an annual pension. Consequently,
in several laws it is stipulated what fraction of annual earnings is
to be considered as daily earnings, the latter serving as the basic
wage for compensation of temporary incapacity. Thus in Denmark and Norway, annual earnings are divided by 300, and in
Belgium and Sweden by 365, in order to arrive at the daily rate.
Other laws, on the contrary, provide that the basic wage in case
of temporary incapacity shall be daily earnings at the time of the
accident, no doubt considering that the relatively small total
amount of compensation normally paid for temporary incapacity
makes the elaborate calculation of average earnings unnecessary
(France, Greece, Italy, Quebec, Spain, Switzerland, Uruguay).
— 192 —
§ 3. — Limits of the Basic Wage
The principle of occupational risk, taken in its strict sense,
requires logically that the basis of calculation for compensation
should be the regular earnings of the victim. However, in a large
number of laws the basic wage may be in certain cases either
below or above the workman's actual earnings.
MAXIMUM LIMIT OF THE BASIC WAGE
The imposition of a maximum limit to the earnings which are
taken as the basis for the calculation of compensation results in
the limitation of the amount awarded. To justify this important
deviation from the principle of occupational risk the reason adduced
is the desire to avoid subjecting employers to too heavy a financial
burden where the better paid workmen are concerned, the latter
being considered, in view of their high rate of earnings, to be able
partially to cover their own risks.
The portion of earnings which exceeds the basic wage may either
(a) be left out of account altogether or (¿>) only be taken into consideration at a fraction of its value (generally a third or a quarter).
(a) The first system is adopted in Austria, Belgium, Brazil,
Bulgaria, Canadian Provinces except Quebec, Chile, Cuba, Czechoslovakia, Denmark, Hungary, India, Italy, Latvia, Netherlands,
Norway, Peru, Roumania, Serb-Croat-Slovene Kingdom, Spain
(for non-manual workers only), Sweden, Switzerland, Uruguay.
(b) The second system is preferred in Finland, France, Germany,
Greece, Luxemburg, Poland (former German territory), Portugal
and Quebec. In France the fraction is reduced from one-quarter
to ône-eighth in respect of the excess above a second and higher
level.
In a few countries there is no maximum limit of the basic
wage (Bolivia, Ecuador, Esthonia, Guatemala, Japan, Lithuania,
Panama, Poland (former Austrian and Russian territories), Russia
and Salvador. Such is the case also in France, Greece, Italy,
Quebec, Spain, and Uruguay, but only in so far as temporary
incapacity is concerned.
Sometimes one finds a maximum basic wage applicable in case
of permanent incapacity and death, but a different maximum or
no limit at all for the case of temporary incapacity. There are
considerable discrepancies between the maximum basic wages
— 193 —
provided for these two cases in Finland and Roumania; which are
doubtless to be explained by the fact that the limits have not been
adjusted to the same extent to the general movement of wages.
MINIMUM LIMIT OF THE BASIC WAGE
The object of providing a minimum limit below which the basic
wage, even if actual earnings are under this limit, cannot be allowed
to fall, is to avoid awarding to certain accident victims compensation so small that they cannot live upon it.
The countries whose laws provide for a minimum basic wage
are Austria, Bolivia, Bulgaria, Chile, Denmark, Ecuador, Esthonia,
Finland, Germany, India, Italy, Latvia, Lithuania, Luxemburg,
Norway, Panama, Peru, Poland (former German territory), Roumania, Salvador, Serb-Croat-Slovene Kingdom, Spain, Sweden.
In certain countries, as the result of the depreciation in currency,
the minimum basic wage has ceased to have any practical importance
while retaining its value as the expression of a principle.
Differences are to be noticed in the minimum basic wages fixed
for permanent and temporary incapacity respectively. Thus in
Finland the minimum basic wage for temporary incapacity
is four and a half times the minimum basic wage for permanent
incapacity. The same reason may be advanced in explanation
as the analogous discrepancy in the case of the maximum basic
wage.
BASIS FOR THE DETERMINATION OF THE LIMITS OF THE BASIC WAGE
None of the laws states what criterion has been used in order to
determine the maximum limit of the basic wage, though some of
them contain precise provisions for fixing the minimum limit.
It has not been possible within the scope of this report to undertake a study of the parliamentary papéis relating to the preparation of the laws of the various countries, nor to make a comparison
between the real wages of the various classes of skilled workers
and the maximum limits of the basic wage. It is therefore impossible to give any estimate of the practical importance of these
limits. It must suffice to point out that during recent years the
limits have been raised in several countries (for example, in Austria,
France, Great Britain, Italy and Switzerland), and that the argument brought forward has been the necessity of bringing the limit
into harmony with the average level of the wages of ordinary
skilled workers.
13
— 194 —
The minimum limit of the basic wage, which was introduced
in order to avoid awarding too low a rate of compensation, is
fixed in certain countries at the level of the ordinary earnings of
unskilled labourers. Such indeed is the case in Esthonia, Germany,
Latvia, Lithuania, Luxemburg, Poland (former German territory),
and Roumania. In the majority of other countries the law does
not indicate what basis has been used for fixing the minimum limit.
The variety of standards adopted is clearly shown by a comparison between the ratios of the maximum to the minimum
• limits in certain countries where these limits are expressed in
figures.
Ratio of Minimum
and Maximum
Basic Wage in certain countries
Country
Austria
Bulgaria
Chile
Denmark
India
Italy
Norway
Serb-Croat-Slovene Kingdom.
Sweden
1
1
1
1
1
1
1
1
1
Ratio
to 10
to 4
to 5
to 2
to 10
to 6
to 4%
to 20
to 5
§ 4. — Basic Wage of Apprentices
Compensation being calculated from wages, apprentices and workmen under age would, unless they were protected by the ordinary
minimum basic wage or by special provision, receive little or no
compensation. The situation of an apprentice differs from that
of an adult workman not only in the amount of his wages, but in
that the apprentice's wages at the time of the accident or previously,
at least in case of permanent incapacity and death, afford no
indication of the economic loss to himself or his dependants, since
he would have received considerably higher remuneration on
completing his training. Hence the method of computing the
basic wage from past earnings, which can be justified in the case
of adults, is inadmissible when applied to apprentices.
The majority of laws make some provision for meeting the case
of apprentices. They can be classed in six groups according to
the methods which they adopt.
(1) The basic wage of an apprentice is the earnings of a fully
trained workman (Alberta, British Columbia, New Brunswick, New
Zealand, South Australia, Sweden, Uruguay).
— 195 —
(2) As from a certain date after the accident or as from the
age at which they would have completed their training, apprentices
are compensated on the basis of the earnings of fully trained workmen (Australian Commonwealth and States except South
Australia, Great Britain, Irish Free State, Manitoba, Newfoundland,
Nova Scotia, Ontario, Switzerland).
(3) The earnings of an apprentice are deemed to be not less
than those of the lowest paid workman in the same occupation
(Argentina, Austria, Belgium, Brazil, Cuba, Czechoslovakia, France,
Greece, Hungary, Italy, Netherlands, Panama, Poland (former
Austrian and Russian territories), Portugal, Quebec.
(4) Apprentices are assimilated to ordinary workmen and are
deemed to receive the ordinary minimum basic wage (Bulgaria,
Chile, Denmark, Ecuador, Finland, Germany, Peru, Poland
(former German territory), Salvador, Serb-Croat-Slovene Kingdom, Spain. In Norway apprentices have the benefit of a somewhat higher minimum basic wage than ordinary workmen.
(5) When they reach successively the ages of 15 and 17, apprentices are compensated on the basis of the earnings of unskilled
workmen of those ages (Esthonia, Latvia, Lithuania). In Luxemburg apprentices are compensated as from the age of 16 on the
basis of the earnings of unskilled adult workmen.
(6) Apprentices receive compensation for total incapacity equal
to the reduction in their actual earnings (India, South Africa).
The methods adopted in the countries classified in the first two
groups appear to be the fairest: a direct relation is established
between the economic loss, i.e. wages which would have been
earned in the future if the accident had not occurred, and the
normal industrial development of an apprentice, who has the
legitimate expectation of becoming a skilled workman.
The special protection granted to apprentices in case of permanent incapacity by the introduction of a specified limit to the
basic wage is not maintained in some countries where temporary
incapacity is concerned. Such, for example, is the case in Brazil,
and the Netherlands, where compensation for temporary incapacity is calculated according to actual earnings, so that if
the apprentice receives no remuneration he is not entitled to
compensation.
— 196 —
COMPARATIVE TABLE SHOWING PROVISIONS
RELATING
Computation
Composition
If workman was employed 1 year in undertaking in which accident
occurred
If workman was employed less than 1 year
in undertaking in which
accident occurred
—
Earnings during year
divided by number of
working days.
Earnings during period
of employment divided
by number of days on
which he worked.
AUSTRALIA
Commonwealth
(Seamen and
Workmen)
New South Wales
Queensland
South Australia
Tasmania
Victoria
Western Australia
Sums paid to workman to cover special
expenses entailed by
nature of work are excluded. Queensland and
Victoria Acts include
overtime earnings.
Average weekly earnings.
Average weekly earnings during period of
employment ; or average
weekly earnings during
year of workman in
same grade at same
work in same undertaking, or of workman in
same grade in same class
of employment and (not
in Commonwealth Acts)
in same district.
AUSTRIA
Payments in kind,
shares in profits, supplementary payments of
all kinds, and regular
tips are included,
Earnings during year.
Earnings during period
of employ ment plus average earnings of workmen of same class during rest of year.
COUNTRY
ARGENTINA
BELGIUM
BOLIVIA
—
—
—
BRAZIL
Payments in kind are
included.
300 times daily earnings at time of accident
300 times daily earnings at time of accident.
— 197 —
TO COMPUTATION OF THE BASIC WAGE
'
Other methods of
computation.
Basic wage
of apprentices and
workmen under age
Maximum basic wage
Minimum basic wage
—
None, but maximum
compensation for death
and total incapacity.
—
Apprentices : lowest
wage of workmen of
same class and industry.
Average weekly earnings must be based on
earnings of workman in
grade in which he was
employed when accident
occurred. Absence from
work due to illness or
other unavoidable cause
does not affect basic
wage.
None, but maximum
compensation in all
cases.
None, but minimum
compensation for death
and (not in Commonwealth and New South
Wales Acts) total incapacity.
None, but proportion
of compensation to earnings is bigher in case of
workmen under 21 and
compensation may be
increased at review (not
in South Australia Act,
which provides that
basic wage of workmen
under 21 or apprentices
is probable earnings at
21 or. on completion of
training if accident had
not occurred).
Basic wage is four
times earnings during
13 weeks before accident. If workman was
employed less than 13
weeks, basic wage is
average earnings during
13 weeks of workmen of
same class in same or
similar undertaking. If
workman was employed
in seasonal undertaking,
basic wage is 50 times
average weekly earnings
during last period of
operation.
First four weeks of
incapacity:
30,000
crowns a day. Thereafter: 18,000,000 crowns
a year.
First four weeks of
incapacity: 270 crowns
a day.
Thereafter:
1,800,000 crowns a year.
Apprentices: lowest
wage of workmen of
same class.
If workman was employed in seasonal undertaking, basic wage is
earnings during period
of operation plus earnings during rest of year.
Basic wage for temporary incapacity is daily
earnings obtained by
dividing annual earnings by 365.
7,300 francs a year.
If earnings were variable, basic wage is
earnings during month
before accident.
—
Remarks
2,400 milreis a year.
Apprentices and workmen under 16: not less
than lowest wage of
workmen of same class,
or 1,500 francs a year,
whichever is higher.
2 bolivianos 50 centavos a day.
Ordinary minimum
basic wage applies to
apprentices.
Apprentices: not less
than lowest wage of
workmen of same class.
But compensation for
temporary
incapacity
must not exceed actual
earnings at time of
accident.
— 198 —
COMPARATIVE TABLE SHOWING PROVISIONS
RELATING
Computation
Composition
If workman was employed 1 year in undertaking in which accident
occurred
If workman was employed less than 1 year
in undertaking in which
accident occurred
BULGARIA
Payments in kind,
board and lodging are
included.
—
—
CANADA
Alberta
Sums paid to workman to cover special
expenses entailed by
nature of work are excluded.
Average weekly earnings
Average weekly earnings during period of
employment ; or average
weekly earnings during
year of workman in same
grade at same work in
same undertaking, or of
workman in same grade
in same class of employment in same district.
COUNTRY
British Columbia
—~
Manitoba
"
New Brunswiok
—
—
—
Ontario
Sums paid to workman to cover special
expenses entailed by
nature of work are excluded.
Average weekly earnings.
Average weekly earnings during period of
employment ; or average
weekly earnings during
year of workman in
same grade at same
work in same undertaking, or of workman in
same grade in same
class of employment in
same district.
Quebec
Payments in kind are
included.
Earnings during year.
Earnings during period
of employment plus average earnings of workmen of same class during rest of year.
Nova Sootia
— 199 —
TO COMPUTATION OF THE BASIC WAGE (COTlt.)
Other methods of
computation.
Maximum basic wage
Minimum basic wage
Basic wage
of apprentices and
workmen under age
Remarks
Basic wage is average
daily earnings during 4
months before accident.
61 levas a day.
Average weekly earnings must be based on
earnings of workman in
grade in which he was
employed when accident
occurred. Absence from
work due to illness or
other unavoidable cause
does not affect basic
wage
2,000 dollars a year.
15 levas a day.
Ordinary minimum
basic wage applies to
apprentices.
None, but compensation for death is independent of earnings.
Basic wage is regular
earnings at time of accident; or average annual earnings in previous years; or probable
annual earning capacity
at time of accident.
Ditto
Ditto
Workmen under 21 :
any probable increase in
earnings is taken into
account.
Ditto
Ditto
Ditto
Workmen under 21 :
not less than earnings at
time of accident; compensation may be Increased at review.
Ditto
Workmen under 21 :
any probable increase
in earnings is taken
into account.
Ditto
None, but compensation may be increased
at review.
Basic wage ¡s regular
earnings at time of accident or previously.
1,500 dollars a year.
Basic wage is regular
earnings at time of accident; or average annual earnings in previous three years; or
probable annual earning capacity at time of
accident.
1,200 dollars a year.
Where it seems more
equitable, compensation
may be based on earnings at time of accident.
Average weekly earnings must be based on
earnings of workman in
grade in which he was
employed when accident
occurred. Absence from
work due to illness or
other unavoidable cause
does not afTect basic
wage.
2,000 dollars a year.
Ditto
Ditto
If workman was employed intermittently,
basic wage is earnings
while work went on plus
earnings during rest of
year. Basic wage for
temporary incapacity is
daily earnings at time
of accident.
1,000 dollars a year;
one-quarter of earnings
between 1,000 and 1,500
is taken into account.
None, but minimum
compensation for death.
Apprentices: lowest
wage of workmen In
same undertaking.
i ...
— 200 —
COMPARATIVE TABLE SHOWING PROVISIONS
RELATING
Computation
COUNTRY
CANADA (coni.)
Saskatchewan
Yukon
Composition
If workman was employed 1 year in undertaking in which accident
occurred
If workman was employed less than 1 year
in undertaking in which
accident occurred
—
—
—
—
—
—
300 times average
daily earnings for days
on which workman was
at work during period of
employment.
CHILE
Payments in kind,
piece-work and overtime
earnings, bonuses, shares
in profits, and regular
tips are included.
CUBA
Payments in kind are
included.
Ditto
Earnings during period
of employment plus onehalf of earnings which
injured workman would
have received during
rest of year, or plus
one-half of earnings of
other workmen of the
same class during rest
of year.
CZECHOSLOVAKIA
Payments in kind and
shares in profits are
included.
300 times average daily
earnings.
Average earnings during year of workmen of
same class in same or
similar neighbouring undertaking.
DENMARK
Payments in kind,
shares in profits, use of
house and rent allowance are included.
Earnings during year.
Basic wage is estimated by Workers' Insurance Council.
Earnings during year.
ECUADOR
"
- 201 —
TO COMPUTATION OF THE BASIC WAGE
Other methods of
computation.
Maximum basic wage
(COnt.)
Minimum basic wage
Basic wage
of apprentices and
workmen under age
600 pesos a year or
2 pesos a day.
Ordinary minimum
basic wage applies to
apprentices.
Remarks
Basic wage is earnings
during previous three
years, either of injured
workman, or of other
workmen in same grade
in simila'r employment.
None, but maximum
compensation in all cases
Compensation is fixed
by law, independent of
earnings.
3,000 pesos a year or
10 pesos a day.
If workman was employed intermittently,
basic wage is earnings
while work went on
plus earnings during rest
of year.
1,095 pesos a year.
Apprentices and workmen under 18: not less
than lowest wage of
ordinary workmen in
same undertaking.
If workman was employed in seasonal undertaking, basic wage is
300 times average daily
earnings during period
of operation. Accidental
interruptions of work do
not affect basic wage.
12,000 crowns a year.
Apprentices: lowest
wage of workmen of
same class, but not more
than 5,400 crowns, or
less than 2,250 crowns
a year. If apprentice's
earnings exceed 5,400
crowns, basic wage is his
actual earnings.
If workman was not
employed during year
in same grade and at
same wages for normal
hours of work, or if he
was unemployed, or employed in a seasonal
undertaking, basic wage
is estimated by Workers'
Insurance Council. Basic wage for temporary
incapacity is V3m of
annual earnings.
2,400 crowns a year.
Temporary incapacity :
9 crowns a day.
Basic wage is earnings
at time of accident, or
earnings of workmen at
similar work in same
district.
1,200 crowns a year.
50 centavos a day in
the plains, 100 centavos
a day in the mountains.
Ordinary
minimum
basic wage applies to
apprentices.
Ditto
. _ 202 —
COMPARATIVE
TABLE
SHOWING
PROVISIONS
RELATING
Computation
Composition
If workman was employed 1 year in undertaking in which accident
occurred
If workman was employed less t h a n i year
in u n d e r t a k i n g in which
accident occurred
ESTHONIA
P a y m e n t s in kind,
shares in profits, and
lodging (deemed equal
t o 10-20% of money
wages) are included.
295 times
average
daily earnings for days
on which w o r k m a n was
at work.
295 times
average
daily earnings for days
on which workman was
at work during period
of employment.
FINLAND
Payments
in
kind
and shares in profits are
included.
E a r n i n g s during year.
E a r n i n g s during period
of employment.
FRANCE
Overtime earnings,
bonuses, family allowances, shares in profits,
board, lodging, clothes,
use of garden, and regular tips are included.
Sums paid t o workmen
to cover special expenses
entailed by n a t u r e of
work are excluded.
Ditto
E a r n i n g s during period
of employment plus average earnings of workmen of same class during rest of year.
GERMANY
Payments
in
kind,
shares in profits, and
t i p s are included.
300 times
average
daily earnings for d a y s
on which w o r k m a n was
at work. If t h e usual
n u m b e r of working days
of undertaking was more
or less t h a n 300, multiplication is made with
this number.
E a r n i n g s during period
of employment plusaverage earnings of workmen of same class and
skill in same or similar
neighbouring undertaking during rest of y e a r ;
or average daily earnings during period of emp l o y m e n t multiplied by
n u m b e r of working days
of u n d e r t a k i n g .
GREAT BRITAIN
Board, lodging, clothes,
tips, and all remuneration capable of being
estimated in money are
included. Sums paid to
workman to cover special expenses entailed
by n a t u r e of work are
excluded.
Average weekly earnings.
Average weekly earnings during period of
e m p l o y m e n t ; or average
weekly earnings during
year of workman in
s a m e g r a d e at same
work in same undertaking, or of workman
in same grade in same
class of employment in
s a m e district.
COUNTRY
— 203 —
TO COMPUTATION OF THE BASIC WAGE (COTlt.)
Other methods or
computation.
Maximum basic wage
Minimum basic wage
Basic wage
of apprentices and
workmen under age
Remarks
If workman was employed in seasonal undertaking, basic wage is
average daily earnings
during period of operation multiplied by number of working days in
that period plus a sum
obtained by multiplying
the local daily wage for
unskilled workmen by
the difference between
295 and the number of
working days of the
undertaking.
295 times local daily
wage for unskilled adult
workmen.
If workman was em900 marks a year; oneployed in seasonal un- third of earnings in
dertaking: basic wage is excess is taken into
estimated by Insurance account. Temporary inCouncil. Basic wage for capacity: 15 marks a
temporary incapacity is Sday.
l
/m of yearly earnings.
If workman was employed intermittently,
basic wage is earnings
while work went on
plus earnings during rest
of year.
Exceptional
unemployment from
causes beyond control
of workman does not
affect basic wage. Basic
wage for temporary incapacity is daily earnings at time of accident
or, if such were variable,
earnings during previous
month divided by number of days on which he
worked.
4,500 francs a year;
one-quarter of earnings
between 4,500 and 15,000
and one-eighth of earnings over 15,000 are
taken into account.
If workman was employed in seasonal undertaking, basic wage is
earnings during period
of operation plus a sum
obtained by multiplying
the local wage for unskilled adult workmen
by the difference between 300 and the number of working days in
period of operation.
1,800 marks a year;
one-third of earnings in
excess is taken into
account.
Average weekly earnings must be based on
earnings of workman in
grade in which he was
employed when accident
occurred. Absence from
work due to illness or
other unavoidable cause
does not affect basic
wage.
300 marks a year.
Minimum basic wage
is fixed separately for
children between 12 and
15, young persons between 15 and 17, and
adults over 17 : it is 295
times local daily wage
for unskilled workmen
in those age classes.
Ordinary
minimum
basic wage applies to
workmen under 21.
Apprentices and workmen under 16: not less
than lowest wage of
workmen of same class
in same undertaking,
but compensation of
workmen under 16 for
temporary incapacity
must not exceed actual
earnings.
300 times local daily
wage for adult workmen.
Ordinary
minimum
basic wage applies to
apprentices and workmen under 21.
None, but minimum
None, but maximum
compensation in all cases. compensation for death.
None, but compensation of workmen under
21 may be increased at
review.
— 204 —
COMPARATIVE TABLE SHOWING PROVISIONS RELATING
Computation
COUNTRY
GREECE
Composition
Payments in kind are
included.
II workman was employed 1 year in undertaking in which accident
occurred
If workman was employed less than 1 year
in undertaking in which
accident occurred
Earnings during year.
Earnings during period
of employment plusaverage earnings of workmen of same class (luring rest of year.
HUNGARY
(Industry)
(Agriculture)
—
—
INDIA
Any privilege or beneAverage monthly earnfit capable of being ings.
estimated in money is
included. Sums paid to
workman to cover special
expenses entailed by nature of work are excluded.
30 times total earnings during last continuous period of employment divided by number
of days in that period.
IRISH FREE STATE
Sums paid to workman to cover special
expenses entailed by
nature of work are excluded.
Average weekly earnings.
Average weekly earnings during period of
employment; or average
weekly earnings during
year of workman in same
grade at same work in
same undertaking, or of
workman in same grade
in same class of employment in same district.
ITALY
( Industry)
Bonuses, payments in
kind, and lodging are
included.
Earnings during year,
but not less than 300
times average daily earnings for days on which
workman was at work.
300 times average
daily earnings for days
on which workman was
at work during period
of employment.
—
—
(Agriculture)
— 205 —
TO COMPUTATION OF THE BASIC WAGE
Other methods of
computation.
(cOilt.)
Basic wage
of apprentices and
workmen under age
Maximum basic wage
Minimum basic wage
If workman was employed Intermittently,
basic wage is earnings
while work went on plus
earnings during rest of
year. Exceptional unemployment from causes
beyond control of workman does not affect
basic wage. Basic wage
for temporary incapacity is daily earnings at
time of accident.
1,666 drachmae a
year; one-quarter of
earnings in excess taken
into account.
None, but minimum
compensation for death
and permanent incapacity.
Basic wage is 300
times average daily
earnings for days on
which workman was at
work during four weeks
before accident.
18,000,000 crowns for
incapacity of 50 % or
more; 12,000,000 crowns
for incapacity of 21-49 % ;
2,100,000 crowns for incapacity of not more
than 20%.
Compensation is fixed
by statute, independent
of earnings.
—
—
—
A continuous period
of employment Is one
which has not been interrupted by a period of
absence from work of
more than 14 days.
83 Y, rupees a month.
8 rupees a month.
None, but proportion
of compensation to
earnings is higher in
case of workmen under
15.
Average weekly earnings must be based on
earnings of workman in
grade in which he was
employed when accident
occurred. Absence from
work due to illness or
other unavoidable cause
does not affect basic
wage.
None, but maximum
compensation in all
cases.
None, but minimum
compensation for death.
None, but proportion
of compensation to earnings is higher in case of
workmen under 21, and
compensation may be
increased at review.
Remarks
Tables of average or
customary wages drawn
up after consultation
with employers and
workmen are used in
industries which operate
irregularly or seasonally
or where work is paid
by the piece.
Compensation depends
on age and sex and not
on earnings.
6,000 lire a year.
—
Apprentices and workmen under 21 : lowest
wage of workmen of
same sex and class, but
not less than 500 drachmae a year.
Apprentices: lowest
wage of fully qualified
workmen employed at
same work in same or
similar undertaking.
Workmen under 18:
lowest wage of workmen
over 18 employed at
same work in same or
similar undertaking.
1,000 lire a year.
—
Apprentices : lowest
wage of workmen in
same industry oroccupation.
— 206 —
COMPARATIVE TABLE SHOWING PROVISIONS
RELATING
Computation
COUNTRY
JAPAN
(Factory Act)
Composition
If workman was employed 1 year in undertaking in which accident
occurred
If workman was employed less than 1 year
in undertaking in which
accident occurred
Payments in kind and
other allowances from
employer may be included.
(HealDi Insurance
Act)
LATVIA
Payments in kind,
shares in profits, and
lodging (deemed equal
to 10-20% of money
wages) are included.
280 times average
daily earnings during
year for days on which
workman was at work.
280 times average
daily earnings for days
on which workman was
at work during period
of employment.
LITHUANIA
Payments in kind and
lodging (deemed equal
to 20 % of money wages)
are included.
260 times average
daily earnings for days
on which workman was
at work.
260 times average
daily earnings for days
on which workman was
at work during period
of employment.
LUXEMBURG
Payments in kind and
shares in profits are included.
Earnings during year
if workman was at work
on not less than 300
days.
If number of days on
which workman was at
work is less than 300,
basic wage is earnings
during period of employment divided by number
of working days of
undertaking and multiplied by 300.
NETHERLANDS
( Industry)
(Agriculture)
Payments in kind,
lodging, and regular tips
are included.
Earnings during year
divided by number of
days on which workman
was at work but not
more than 313.
Average daily earnings of similar workman
in same or neighbouring
undertaking during year.
This method is applied
if workman was sick for
7 or more days during
year.
— 207 —
TO COMPUTATION OF THE BASIC WAGE
Other methods of
computation.
Maximum basic wage
(cOilt.)
Minimum basic wage
Basic wage
of apprentices and
workmen under age
Remarks
If workman was paid
a fixed wage, basic wage
is that fixed wage. If
workman was paid by
the piece or hour, basic
wage is average daily
earnings for 30 working
days before accident. If
workman was employed
for less than 30 days,
basic wage is average
daily earnings for full
day's work during period of employment.
None for manual workers. 1,200 yen a year for
non-manual workers.
If workman was employed in seasonal undertaking, basic wage is
average daily earnings
during period of operation multiplied by number of working days in
that period plus a sum
obtained by multiplying
the local daUy wage for
unskilled adult workmen
by the difference between 280 and the number of working days in
period of operation.
150,000 roubles a year.
If workman was employed in seasonal undertakings basic wage is
average daily earnings
during period of operation multiplied by number of working days in
that period plus a sum
obtained by multiplying
the local daily wage for
unskilled adult workmen by the difference
between 260 and number of working days in
period of operation.
Absence due to sickness does not affect
basic wage: workman is
deemed to receive average daily earnings on
days of sickness.
Basic wage for temporary incapacity is earnings of similar workman
during week before accident.
1,500 francs a year;
one-third of earnings
between 1,500 and 3,750
francs is taken into
account.
8 gulden a day.
280 times local daily
wage for unskilled adult
workmen.
Minimum basic wage
is fixed separately for
children between 12 and
15, young persons between 15 and 17 and
adults over 17; it is 280
times local daily wage
for unskilled workmen
in those age-classes.
260 times local daily
wage for unskilled adult
workmen.
Minimum basic wage
is fixed separately for
children between 12 and
15, young persons between 15 and 17, and
adults over 17: it is 260
times local daily wage
for unskilled workmen
in those age-classes.
300 times local daily
wage for unskilled adult
workmen.
Apprentices and workmen under 16: daily
wage forunskilled young
workmen.
Apprentices and workmen under 21 : not less
than lowest wage of fully
qualified workmen in
same industry or occupation. In case of death
minimum basic wage is
1.50 gulden a day. But
compensation for temporary incapacity is based on average daily
earnings for week before
accident.
— 208 —
COMPARATIVE TABLE SHOWING PROVISIONS
RELATING
Computation
COUNTRY
Composition
If workman was employed 1 year In undertaking in which accident
occurred
NETHERLANDS (coni.)
(Seamen)
Ditto
Earnings during year
divided by 309.
Sums paid to workman to cover special
expenses entailed by
nature of work are excluded.
Average weekly earnings.
Average weekly earnings during period of
employment; or average
weekly earnings during
yearof workman in same
grade at same work in
same undertaking or of
workman in same grade
in same class of employment in same district.
Ditto
Ditto
Ditto
NEWFOUNDLAND
NEW ZEALAND
NORWAY
( Industry)
(Seamen)
Payments in kind,
shares in profits, and
use of house or land
are included.
~~
(Fishing)
Earnings during year.
—
If workman was employed less than i year
in undertaking in which
accident occurred
Earnings during year
of workman of same
class employed in same
or similar neighbouring
undertaking.
—
—
PANAMA
—
—
—
PERU
—
* Earnings during year.
300 times daily earnings at time of accident,
less exceptional remuneration and payment for
over-time.
— 209 —
TO COMPUTATION OF THE BASIC WAGE
Other methods of
computation.
Maximum basic wage
(COM.)
Minimum basic wage
Basic wage
of apprentices and
workmen under age
Remarks
Tables of wages drawn
up by Royal Decree.
Average weekly earnings must be based on
earnings of workman in
grade In which he was
employed when accident
occurred. Absence from
work due to illness or
other unavoidable cause
does not affect basic
wage.
Absence from work,
whatever the cause, does
not affect basic wage.
Ditto
None, but maximum
None, but minimum
compensation in all cases. compensation for death.
Ditto
None, but proportion
of compensation to earnings is higher in case of
workmen under 21 and
compensation may be
increased at review.
Ditto
Apprentices and workmen under 21 : minimum
basic wage for permanent incapacity is £2 a
week, and probable increase in earnings is
taken into account.
450 crowns a year.
Apprentices : male,
750 crowns a year;
female, 500 crowns a
year.
If workman was employed in seasonal undertaking, basic wage is
not less than customary
wages of workmen of
same age and sex in
same district.
Basic
wage for temporary incapacity i/a» of annual
earnings.
2,000 crowns a year.
Basic wage is fixed by
law separately for each
rank in a ship's crew,
independent of actual
earnings.
2,700 crowns a year
for captains of ships of
300 tons or more.
750 crowns a year for
members of the regular
crew below the rank of
ordinary seamen.
Ordinary
minimum
basic wage applies to
apprentices.
Basic wage of fisherman under 60 is 1,200
crowns a year; that of
fisherman over 60 is
1,000 crowns a year.
—
—
—
Basic wage is wages
on the day of the accident.
—
—
120 pounds a year.
1 balboa a day.
Fixed by regulations
for different regions and
industries:it varies from
40 centavos to 1 sol
50 centavos a day.
Apprentices : lowest
wage of workmen in
same industry.
Ordinary
minimum
basic wage applies to
apprentices.
14
— 210 —
COMPARATIVE TABLE SHOWING PROVISIONS
RELATING
Computation
Composition
If workman was employed 1 year in undertaking in which accident
occurred
If workman wns employed less than 1 year
in undertaking in which
accident occurred
Payments in kind,
shares in profits, and
tips are included.
300 times average
daily earnings for days
on which workman was
at work.
Earnings during period
of employment plus average earnings of workmen of same class and
skill in same or similar
undertaking during rest
of year; or average daily
earnings during period
of employment multiplied by number of
working days of undertaking.
Payments in kind,
and shares in profits
are included.
300 times average
daily earnings.
Average earnings during year of workmen of
same class in same or
similar neighbouring undertaking.
PORTUGAL
Ditto
Earnings during period
of employment plus
earnings of workmen of
same class during rest
of year.
ROUMANIA
Average daily earnings for days on which
workman was at work
multiplied by number
of working days of undertaking, but not less
than 300.
Earnings for days on
which workman was at
work plus earnings of
workmen of same class
in same or similar undertaking during rest of
year.
COUNTRY
POLAND
Former German
Territory
Former Austrian and
Russian Territories
RUSSIA
Payments in kind,
and use of house are
included.
— 211 —
TO COMPUTATION OF THE BASIC WAGE
Other methods of
computation.
(cOilt.)
Maximum basic wage
Minimum basic wage
Basic wage
of apprentices and
workmen under age
1800 zloty a year.
One-third of earnings in
excess is taken into
account.
300 times local daily
wage for adult workmen.
Ordinary
minimum
basic wage applies to
apprentices and workmen under 21.
Remarks
If workman was employed in seasonal undertaking, basic wage is
earnings during period
of operation plus a sum
obtained by multiplying
the local wage for unskilled adult workmen
by the difference between 300 and the number of working days in
the period of operation.
If workman was employed in seasonal undertaking, basic wage is
300 times average daily
earnings during period
of operation. Accidental
interruptions of work do
not affect basic wage.
Apprentices : lowest
wage of workmen of
same class.
-
If workman was cmployed intermittently,
basic wage is average
daily earnings for days
on which he was at
work. Interruption of
work from causes beyond control of workman
do not affect basic wage.
Basic wage of pieceworkers is computed
from their earnings during previous 3 years,
whether employed or
not.
Basic wage for
temporary incapacity is
average daily earnings
during previous month.
700 .escudos a year;
one-half of earnings in
excess is taken into
account
If workman was employed in seasonal undertaking, basic wage is
average daily earnings
during period of operation multiplied by number of working days in
that period plus a sum
obtained by multiplying
average daily earnings
of unskilled workmen
by the difference betweer,
300 and the number of
working days in the
period of operation.
8 lei a day plus cost
of living allowance of
200 %. Temporary incapacity: 50 lei a day.
Basic wage is average
monthly earnings during 3 months before accident, Basic wage for
temporary incapacity is
the scheduled wage-rate
for workmen of same
class, but not less than
actual earnings at time
of. accident.
Apprentices and workmen under 16: lowest
wage of adult workmen
of same class in same
undertaking.
300 times average
daily earnings of adult
unskilled workmen in
same district. Temporary incapacity: yt leu'a
day.
— 212 —
COMPARATIVE TABLE SHOWING PROVISIONS RELATING
Computation
COUNTRY
SALVADOR
Composition
If workman was employed 1 year in undertaking in which accident
occurred
If workman was employed less than l year
in undertaking in which
accident occurred
Ditto
SERB-CROATSLOVENE KINGDOM
All payments to which
workman is entitled under his contract oí service for normal hours
of work, cost of living
and family allowances,
shares in profits, board,
lodging, use of land,
rent allowance, and regular tips are included.
II employed for 30
weeks or more, 300 times
average daily earnings.
If not employed for
30 weeks, average earnings for period of employment plus average
earnings of workmen at
similar work in same or
similar neighbouring undertaking during period
required to complete
30 weeks.
SOUTH AFRICA
Sums paid to workman to cover special
expenses entailed by
nature of work, and remuneration for overtime
work not habitually performed are excluded.
Average weekly earnings.
Average weekly earnings during period of
employment, plus average weekly earnings during rest of year either of
injured workman in different undertaking at
similar work at same
terms of remuneration,
or of other workmen at
similar work at same
terms of remuneration
in same undertaking.
SPAIN
Remuneration in any
form for work on account of employer, overtime pay, bonuses on
work, board, lodging are
included. All remuneration except at fixed or
piece rates must be regular, otherwise it is excluded.
Earnings during year.
SWEDEN
All remuneration received from employer
and shares in profits are
included.
Ditto
Earnings during period
of employment plus
earnings of other workmen of same skill at
similar work in same
district during rest of
year, or plus earnings of
injured workman in different undertaking during rest of year if his
earnings were higher
than those of the said
other workmen.
— 213 —
TO COMPUTATION OF THE BASIC WAGE
Other methods of
computation.
Maximum basic wage
(COtlt.)
Minimum basic wage
Basic wage
of apprentices and
workmen under age
Remarks
Basic wage of pieceworkers is computed
from average earnings
of workmen of same
class at same or similar
work. Basic wage for
temporary incapacity is
daily earnings at time
of accident.
40 dinars a day.
None, but maximum
compensation in all
cases.
Basic wage of pieceworkers may be computed from average
earnings of workmen at
same work at same
terms of remuneration.
Basic wage for temporary incapacity is
'/as of annual earnings.
None for manual
workmen. 15 pesetas
a day for non-manual
workmen.
2,400 crowns a year.
50 centavos a day.
Ordinary
minimum
basic wage applies to
apprentices.
2 dinars a day.
Ordinary
minimum
basic wage applies to
apprentices. If earning
capacity of apprentice
is reduced more than yit
or if he dies in 18th year,
pension is increased by
basing it on average
earnings of fully paid
workman of same age
employed at work for
which apprentice was
training.
None, but proportion
of compensation to earnings may be increased
in case of low-paid
workmen.
None, but proportion
of compensation to earnings is higher in case of
workmen under 21.
2 pesetas a day.
Ordinary
minimum
basic wage applies to
apprentices.
450 crowns a year.
Workmen under 18:
not less than probable
annual earnings at 18,
if workman had not
been injured.
\
— 214 —
COMPARATIVE TABLE SHOWING PROVISIONS
RELATING
Computation
Composition
If workman was employed 1 year in undertaking in which accident
occurred
If workman was employed less than 1 year
in undertaking in which
accident occurred
SWITZERLAND
Regular additional
allowances are included.
Ditto
Earnings during period
of employment plus
earnings of workman of
same class in same or
similar neighbouring undertaking during rest of
year.
URUGUAY
Payments in kind,
board, lodging, regular
bonuses and tips are
included.
Ditto
Earnings during year
of workman of same
class in same or similar
neighbouring undertaking.
COUNTRY
— 215 —
TO COMPUTATION OF THE BASIC WAGE
Other methods of
computation.
Maximum basic wage
(concluded)
Minimum basic wage
Basic wage
of apprentices and
workmen under age
Remarks
If workman was employed intermittently,
basic wage is earnings
while work went on plus
earnings during rest of
year, but rate of earnings outside undertaking must not exceed
rate inside. Basic wage
for temporary incapacity is daily earnings at
time of accident.
6,000 francs a year.
Temporary incapacity :
21 francs a day.
Unpaid workmen :
lowest wage of ordinary
workman in same undertaking.
Workman
not earning wages of
fully qualified workman :
basic wage is deemed to
be such wages as from
time when he would probably be earning them
if he had not been injured.
If computation by
other methods is impossible, basic wage is 300
times average daily earnings. ir workman was
paid by the piece, basic
wage is 300 times average daily earnings during previous 3 months.
Basic wage for temporary incapacity is daily
earnings at time of
accident.
750 pesos a year.
• Apprentices and workmen under 21 : basic
wage for permanent incapacity is 300 times
average daily earnings
of ordinary workman in
same or similar neighbouring
undertaking,
such ordinary workmen
to be fully qualified but
not exceptionally skilled ;
basic wage for temporary incapacity is actual
earnings.
CHAPTER
II
THE FORM OF COMPENSATION
The value of compensation in use depends not only on its amount
but also to a certain extent on the form in which the payment
is made to the beneficiaries. Compensation may take two forms:
a lump sum, paid once and for all, or periodical payments, called
pensions or allowances according as they are of a permanent or
temporary character.
In this chapter are examined firstly the conditions which, it
would seem, the form of compensation should fulfil in the cases
of death and of incapacity; and secondly, the provisions as to
form contained in the laws of the different countries.
§ 1. — The Conditions which should be fulfilled by the Form of
Compensation
The considerations which should affect the form of compensation
are the interest of the beneficiary, t h a t of the employer, and
administrative convenience. They differ according as the case
is one of death, temporary incapacity, or permanent incapacity.
T H E FORM OF COMPENSATION IN CASE OF DEATH
In case of accident resulting in death, compensation may be
paid in the form either of a pension or of a lump sum. The capital
value of the pensions awarded to dependants, especially widows
and orphans, is generally a considerable sum, and there is a certain
degree of risk in handing over the control of it to inexperienced
beneficiaries who might expend it rapidly and improvidently, and.
finding themselves then without resources, have to seek relief from
the poor law authorities.
There are some situations in which the award of a lump sum
may be advisable in order to cover some unavoidable charge, or
to enable some productive outlay to be undertaken: a lump sum
might be required, for example, in order to pay off a mortgage
— 217 —
or a debt so as to avoid seizure, or in order to provide education
for children. It would seem therefore, that a system for supervising the use of capital payments should be organised
THE FORM OF COMPENSATION IN CASE OF TEMPORARY INCAPACITY
Where temporary incapacity for work, which is generally of
short duration, is concerned, the payment of compensation in the
form of a daily or weekly allowance appears to be required. It is
a simple and handy system which is fully justified by the necessity
of enabling the rate of compensation to be modified at any time
in accordance with the earning capacity of the victim, until the
injury is completely healed and its consequences have been determined.
THE FORM OF COMPENSATION IN CASE OF PERMANENT INCAPACITY
For permanent incapacity, as in case of death, compensation
may take the form either of a lump sum or of a pension.
If the incapacity is of a slight character, the amount of the
capital value of the pension is small; its misuse is therefore not so
much to be feared. Moreover, as the workman retains a large
proportion of his earning capacity he will not fall into destitution.
Again, the award of a lump sum will avoid the relatively high
administrative expense entailed by the payment of pensions in
periodical instalments.
In cases where serious reduction in earning capacity is involved,
the capital value of the compensation may be quite large. The
victim of the accident is generally better fitted to handle a considerable sum than the dependants in case of death. At the same
time, though the risk that the money will be unwisely used is
lessened, it nevertheless subsists, and is all the more important
because the small earning capacity of the workman makes it always
necessary to supplement his earnings.
The payment of compensation in the form of a lump sum or
the partial or total commutation of the pension into capital may
often be advantageous to the accident victim where the object
is to enable him to regain a situation in industry. For example,
the money might be used to purchase a farm, a shop or a set of
tools, or to pay for a course of vocational re-training. It is,
however, necessary to obtain an assurance that the money will be
wisely employed, and to take into account the individual qualities
of the workman and his age.
— 218 —
§ 2. — Provisions of the Laws concerning the Form of Compensation
In case of temporary incapacity the form of compensation is in
all countries a temporary allowance, paid either daily or weekly.
In case of permanent incapacity or death, a lump sum is awarded
almost as frequently as a pension. The lump sum which the
employer is required to pay is sometimes handed over directly
to the beneficiaries and sometimes deposited with a public fund
which pays to them the annuity corresponding to the value of
the sum. Likewise, where it is the general rule for compensation
to be in the form of a pension, the employer may under certain
conditions, either at his own option or by agreement with the beneficiaries, discharge his liability totally or partially by the payment
of a lump sum.
Taking into account these possible combinations, one may
arrange the laws of the various countries in three groups.
First group: The employer or insurance institution pays a lump
sum which is delivered directly to the beneficiaries.
Incapacity and death: Bolivia, Brazil, Ecuador, Greece, India,
Italy (in case of death; and in case of incapacity of not more
than 50 per cent.), Japan, Quebec and Saskatchewan, together
with Panama, Peru and Spain. In the last three countries the
employer has the option of paying a lump sum or a pension.
Incapacity only: Australian Commonwealth and States except
Queensland, Great Britain, Irish Free State, Newfoundland and New
Zealand. In these countries there is no legal distinction between
temporary and permanent incapacity, and compensation for
incapacity is primarily in the form of a weekly allowance. Nevertheless, it seems that in practice the allowance for incapacity is
generally commuted for a lump sum where the injury is likely to be
permanent. In these countries there are two methods of commutation, in respect of which they fall to be included both in this
and in the second group. According to one method, the employer
and workman may at any time agree to commute the allowance
for a lump sum paid direct to the workman.
Second group: The employer or insurance institution pays a lump
sum to a judicial autlwrity or a fund, whose duty it is to make
the payment to the beneficiaries.
(a) The payment to the beneficiaries is made in such manner
as the judge, to whom the lump sum has been entrusted, determines to be in the best interests of the beneficiaries.
— 219 —
Incapacity and death: Australian Commonwealth and States,
Great Britain, Irish Free State, Newfoundland, New Zealand,
and South Africa. In all these countries except the Australian
State of Queensland and South Africa, there are, as has been stated
above, two methods of commuting the allowance payable in case
of incapacity for a lump sum. One method has already been
mentioned. According to the other method the employer has the
option after six months of commuting the allowance for a lump
sum fixed by arbitration, and handed over to the judge to be
disposed of as the latter decides.
(¿>) The payment to the beneficiaries is made in the form of
a pension.
Incapacity and death: Argentina and Denmark.
Incapacity only: Italy (serious incapacity only).
Third group : The employer or insurance institution pays a pension
to the beneficiaries.
(a) The pension can in no case be commuted for a lump sum.
Incapacity and death: Bulgaria, Cuba, Guatemala, Netherlands,
Portugal, Russia, and Uruguay.
Death only: Finland, France, Hungary, Germany, Luxemburg,
Poland (former German territory), Roumania, Serb-Croat-Slovene
Kingdom, and Sweden.
(b) The pension can be wholly commuted for a lump sum if
the beneficiary furnishes evidence that the lump sum will be
wisely utilised.
Incapacity and death: Austria, Canadian Provinces except
Quebec and Saskatchewan, Czechoslovakia and Poland (former
Austrian and Russian territories). In Germany and Poland
(former German territory) commutation can only take place in
case of incapacity of less than 20 per cent. In Esthonia and Latvia
the pension cannot be commuted without the approval of the
insurance institution, but it is not clear from the laws whether
evidence as to wise utilisation is required.
Incapacity only: Sweden.
(c) The pension can be partially commuted for a lump sum
if the beneficiary furnishes evidence that the lump sum will be
wisely utilised.
Incapacity and death: Belgium (one-third of the pension may
be commuted).
Incapacity only : France and Norway (one-quarter of the
pension may be commuted).
— 220 —
{d) The pension can be wholly commuted for a lump sum, the
beneficiary not being required to furnish evidence that the lump
sum will be wisely utilised.
Incapacity and death: Lithuania.
Incapacity only: Austria, Esthonia, Latvia, Luxemburg, Roumania, and the Serb-Croat-Slovene Kingdom (in case of incapacity
of not more than 15 to 30 per cent., according to country); Belgium,
Chile, Finland, France, Norway, and Switzerland (in case of pensions of almost negligible amount).
In spite of their differences the laws exhibit a fairly clear tendency
towards the payment of compensation in the form of a pension.
Half a century ago payment in the form of a lump sum was the
general rule; the private companies preferred this system because
it enabled their financial obligations on account of claims to be
determined quickly, precisely and finally, and their liability to be
liquidated with a minimum of administrative expense.
Workmen's compensation legislation has introduced the pension
step by step, at first as a secondary mode of payment alternative to the lump sum, then as the principal form of compensation, with a greater or smaller faculty of commutation for a lump
sum, and at last in certain countries as the sole form of payment.
This evolution is to be explained by the desire, differing in degree
from one country to another, to suit the form of compensation
to the needs of the beneficiaries so as to produce the most satisfactory result from a social point of view; by the development of
compulsory insurance with institutions possessing their regional
and local branches; and by the continual improvement in the
methods of effecting payments at the home, especially by the intermediary of the post office.
CHAPTER III
COMPENSATION IN CASE OF DEATH
Death in consequence of an industrial accident gives rise to
exceptional expenditure in respect of funeral costs, and occasions
an economic loss to the persons who were maintained by the
deceased, or were entitled to demand pecuniary aid from him in
case of need, or finally would have inherited any savings which he
might have made if the accident had not occurred.
The amount of compensation can be fixed with reference to two
different principles: according as a wider or narrower meaning is
assigned to the idea of economic loss, the persons entitled to compensation may be either the heirs as defined by the civil law, or
persons actually dependent on the deceased for their maintenance.
In the former case, the amount of compensation is directly
related to the earnings and the age of the victim of the accident.
In the latter case, the amount of compensation is fixed in relation
to the pecuniary aid which the dependants were receiving or would
have received, i.e. in relation to the age of the victim and the
wages he was earning on the one hand, and to the number of persons
presumed to be economically dependent upon him on the other hand.
The two elements which are met with in both systems are the
age of the victim and his rate of wages. It is indeed evident that
on these two factors depend to a large degree not only the pecuniary
aid which the dependants could expect but also the amount which
the victim might have been able to save if the accident had
not occurred.
In fact the majority of the laws in force have regard both to
the principle of compensation for economic loss and to the principle
of economic dependence, giving greater weight sometimes to one
and sometimes to the other.
In this chapter will be examined in succession: (1) the categories
of relatives entitled to compensation; (2) the total amount of
compensation; (3) the distribution of compensation among the
relatives, and (4) allowances for funeral expenses.
§ 1. — The Categories oí Relatives entitled to Compensation
In general, the categories of relatives entitled to compensation
show a deviation from the categories established for the purpose
— 'Ill —
of intestate succession. The modification is mainly due to the
intention of assigning special importance to dependence, whether
proved or presumed, as a condition for the award of compensation.
Usually, the effect of this modification is to restrict the number
of persons entitled to compensation; such, however, is not always
the case, for under the inlluence of the conception of dependence as
a principal qualification, compensation may be extended to persons
who have no right to inherit under the rules of intestate succession.
The inclusion of the widow and young children among those
entitled to compensation is, of course, universal ; usually the award
is unconditional, their situation of dependence being presumed.
Almost all the laws accord compensation in addition to some
or all of the following categories of relatives: parents, grandparents,
grandchildren, brothers and sisters, and near relatives by marriage.
In respect of these categories of relatives, proof of dependence has
always to be furnished.
A few laws specify that, in the absence of any relatives entitled
to compensation, persons M'ho were dependent on the deceased,
but not related to him, may be compensated instead.
In the following paragraphs, each category is dealt with in turn.
Widow or Widower
Countries may be divided into four groups, according to the conditions under which they award compensation to the widow or widower.
(a) The widow only is entitled to compensation: no proof of
dependence is required (Ecuador, Esthonia, Guatemala, Japan
(Factory Act), Latvia, Lithuania, Roumania, Salvador).
(b) The widower, as well as the widow is entitled to compensation :
no proof of dependence is required. (Argentina, Brazil, Chile, Cuba,
France, Greece, India, Italy, Peru, Portugal, Quebec, Sweden).
(c) The widower, as well as the widow is entitled to compensation: no proof of dependence is required from the widow, but
compensation is only allowed to the widower if he was dependent
or if he is incapacitated for work (Austria, Bulgaria, Czechoslovakia,
Denmark, Finland, Germany, Hungary, Netherlands, New Zealand,
Norway, Poland, Serb-Croat-Slovene Kingdom, Spain, Switzerland,
Uruguay).
(d) The widower as well as the widow is entitled to compensation, but proof of dependence is required in either case: (Australian
Commonwealth and States, Belgium, Canadian Provinces except Quebec, Great Britain, Irish Free State, Newfoundland, South Africa).
In Russia both the widow and the widower must be incapacitated
for work, or have children under 8 dependent on them.
— 223 —
Although, as we have seen, proof of dependence is not required
from widows in the majority of countries, it is nevertheless clear
from other provisions affecting the widow's compensation that the
existence of dependence is presumed ; for where that presumption
is destroyed, the right to compensation ceases. Thus a provision
to be found in many lands denies compensation to the widow who
was divorced, or separated from deceased at the time of the
accident. Moreover, except in Belgium, it is a universal rule in
countries where compensation is in the form of a pension to discontinue the payment when the widow re-marries, but at the
same time to award a lump sum, equal to two or three years' pension.
The question whether a woman living with the deceased workman as his wife should be compensated as though she had been
legally married to him has recently been receiving considerable
attention, especially in France. At the present time there is, it is
believed, only one law, that of the Serb-Croat-Slovene Kingdom,
which accords to the unmarried widow the same compensation
as a married widow.
Children
The situation of children in respect of compensation is analogous
to that of the widow : in most countries (except in those mentioned
under (a) below) they are presumed to be dependent unless the
presumption is destroyed.
Three groups of countries can be distinguished according as the
award of compensation is conditional upon dependence, upon the
operation of an age limit, or is unconditional.
(o) Compensation is conditional upon proof of dependence
(Australian Commonwealth and States, Canadian Provinces except
Quebec, Great Britain, Irish Free State, Newfoundland, South
Africa).
(b) No proof of dependence is required, but compensation can
only be awarded if the child is below a certain age. The age limit
is as follows in the different countries:
Argentina
Austria
Belgium
Bulgaria
Chile
Cuba
Czechoslovakia
Denmark
Ecuador
Esthonia
Finland
France
22
15
16
21
16
18
15
18
16
15
16
16
Germany
Greece
Guatemala
Hungary
India
Italy
Latvia
Lithuania
Luxemburg
Netherlands
Norway
Peru
15
21
12
16
15
18
15
15
15
16
15
16
Poland
Portugal
Quebec
Roumania
Russia
Salvador
Serb-Croat-Slovene
Kingdom
Spain
Sweden
Switzerland
Uruguay
15
14
16
16
16
16
16
18
16
16
16
— 224
-
There is no age limit at all in Brazil and Japan, and no age limit
for unmarried daughters in Greece and India, and in none of these
countries does dependence have to be proved.
A number of laws exempt from the operation of the age limit
children who are physically or mentally incapacitated.
Illegitimate children are almost everywhere treated on the same
footing as legitimate children.
Grandchildren, Brothers and Sisters
Unlike those of children, the claims of grandchildren, brothers
and sisters are only admitted on proof of dependence. The age
limit imposed is the same except in Argentina, where it is reduced
from 22 to 16 in the case of grandchildren, brothers and sisters.
No age limit is, however, provided in Great Britain and its Dominions.
Grandchildren are usually dependent when they are
orphans and under a few laws they can only be compensated if
they are such.
Parents and
Grandparents
Proof of dependence is required in the case of parents and
grandparents in every country where they are among the possible
beneficiaries, except Brazil, India, and Switzerland. In Ecuador and
Spain it is further specified that they must be over 60 years of age.
§ 2. — The Total Amount of Compensation
The total amount of compensation generally depends in the first
instance on the earnings of the deceased; it is expressed either as
a fraction or as a multiple of the basic wage. Further, in a large
number of countries, the compensation, whether fraction or
multiple of earnings, must remain within statutorily determined
maximum and minimum limits.
The normal relation between the basic wage and the total
amount of compensation will now be examined, together with the
maximum and minimum limits of the latter.
T H E RELATION BETWEEN THE TOTAL AMOUNT OF COMPENSATION
AND THE BASIC W A G E
When compensation is paid in the form of a pension, it is generally
expressed as a fraction of the basic wage; and when it is paid
as a lump sum, it is expressed as a multiple of the basic wage.
The following table shows the relation between the total amount of
compensation and the basic wage for the two forms of compensation.
— 225 —
Country
Argentina
Australia
(8 laws)
Bolivia
Brazil
Denmark
Ecuador
Great Britain
Greece
India
Irish Free S t a t e
Italy
Japan
Newfoundland
New Zealand
Panama
Quebec
Salvador
Saskatchewan
South Africa
Spain
1
Lump sums
in multiples
of annual
earnings
3
2
4
5
1
31
5
2%
3
5
Yz
3
3
2
4
2
3
2
2
Country
Austria
Chile
Cuba
Czechoslovakia
Esthonia
Finland
France
Germany
Guatemala
HungaryLatvia
Lithuania
Luxemburg
Netherlands
Norway
Peru
P o l a n d (former
Austrian
and
Russian territories)
P o l a n d (former
German territory)
Portugal
Roumania
Russia
Serb-Croat-Slovene
Kingdom
Sweden
Switzerland
Uruguay
Pensions
in percentages
of annual
earnings
66%
60
60
66%
66%
60
60
60
60
66%
66%
66%
60
60
50
33
66%
60
60
66%
66%
100
66%
60
66%
Plus family allowance for children under 15.
A few countries have been omitted from the above table because
they do not lend themselves to the classification.
In Belgium the total amount of compensation does not depend
only on earnings, but also on the age of the deceased at the time
of his death; the law provides for the payment of a capital sum
sufficient to provide a pension of 30 per cent, of the deceased's
earnings, the amount of the capital varying in relation to the
deceased's expectation of life.
In Bulgaria, the law provides for a pension of specified amount
corresponding to the wage-class in which the deceased was placed
for the purpose of accident insurance; the proportion of pension
to earnings varies from over 100 per cent, in the case of the lowest
class to less than 50 per cent, in the case of the highest, i.e. the
hest-paid workers. This method has been adopted in order to
15
— 226 —
favour the lower-paid workers and to avoid awarding them excessively small pensions. The idea of need has here considerably
influenced the application of the principle that compensation should
be a fixed proportion of the economic loss.
Finally, in several Canadian provinces (Alberta, British Columbia, Manitoba, and Nova Scotia) the compensation is not calculated
according to the earnings of the deceased : the dependants (widow
and children) are entitled to pensions the amount of which is fixed
by law, no doubt with a view to guaranteeing to them a minimum
of subsistence. The idea of need is in this case paramount, and
the principle of repairing the actual economic loss occasioned by
a fatal accident has been abandoned.
Nevertheless, compensation based upon earnings remains the
general rule in present-day legislation. This relation is fairly
constant in the majority of countries where pensions are concerned. The lump sums, on the contrary, represent multiples of
the basic wage which vary considerably from country to country:
the relation most frequently adopted is three times the annual
earnings.
The practical significance of these relations cannot be discussed
here, but an endeavour will be made to show, at least in the case
of a pension of two-thirds of earnings, how that proportion is
generally justified.
The dominating principle in the old laws is that there should be
a certain proportion between the amount of compensation and the
extent of the economic loss caused by the accident. It has already
been explained above that in case of death the loss consists in the
difference between the wages lost and the portion of the wages
which the deceased would have applied to the satisfaction of his
own needs, if he had continued to live. The first factor, namely,
the basic wage having, been determined, according to the legal
provisions described in a previous chapter, one may enquire whether
the second factor can be calculated.
The difficult task of determining the expenditure incurred on
account of each member of a workman's family has been attempted,
and the results of some enquiries into family budgets will be
briefly stated.
The estimates of the portion of the earnings which the workman
consumes himself are generally based on food consumption, and
evidently the application of ratios based on food to other articles
of consumption such as clothing, rent, fuel and light, can only be
made subject to considerable reservation.
— 227 —
In the "United States 1 careful studies of food consumption have
been made from which it appears that, taking the food consumed
by an adult male (of 15 years or more) as basis, the ratios for the
different members of a family are as follows:
Food consumption
Adult male
» female
Child 11-14 years
» 7-10 »
» 4-6 »
& 3 years and under
1.00
0.90
0.90
0.75
0.40
0.15
If the ratios given above are added, the total is 4.10 units for
a family consisting of one adult male and five dependants as
specified, and the proportion of his food consumption to that of
the family as a whole is 1 to 4, or 25 per cent. In a family budget
enquiry conducted in the United States a during 1918 and 1919,
and covering 12,000 families in 92 of the chief industrial centres,
the average number of persons per family was found to be 4.9
and the equivalent of this, in terms of adult males, was 3.32, so
that the adult male consumed 30 per cent.
A committee which examined the average food consumption of
working class families in Great Britain 8 found that the average
number of persons in the families investigated was 5.6, which
was considered to represent 4.37 adult males, so that the adult
male consumed 23 per cent.
A method of estimating food consumption which has been used
in certain European countries is based on the "quet", which is
the consumption of a new-born child. The consumption of an
individual is regarded as increasing one-tenth of a "quet " in each
year, up to the age of 25 years in the case of a man, and 20 years in the
case of a woman. Thus a family consisting of an adult male, an
adult female and three children of 14, 9 and 5 years, would comprise
a total of 12.3 units of consumption, of which the adult male
would represent 3.5 units or 28 per cent.
From these enquiries it would appear that the removal of the
head of a family of five persons consisting of two adults and three
children will occasion a reduction of between 25 and 30 per cent.
in the consumption of food. It might, however, be pointed out
that other expenses, in particular, rent, lighting and heating, will
1
UNITED STATES BUREAU OF LABOUR STATISTICS: Cost of Living
in the
United States. No. 357. Washington, 1924.
2 Ibid.
3
Great Britain : Report of Working Class Cost of Living Committee. Cd. 8980.
London, 1918.
— 228 —
not dimmish to the same extent. Hence one may ask whether
the removal of the head of a family will involve a reduction in
expenditure of 25 to 30 per cent., or whether it will not rather
involve a reduction of less than 25 per cent. If the second form
of the question be answered affirmatively, the economic loss in
case of a fatal industrial accident would be higher than the
two-thirds of earnings allowed by the majority of the laws mentioned above, with the exception of the Serb-Croat-Slovene law.
The percentage representing the reduction in the family expenditure consequent upon the death of an adult will vary with the
number of persons in the family, and the economic loss will be
the greater, the more numerous the family concerned.
The restriction of compensation to two-thirds of earnings, which
is probably less than the actual economic loss, may be explained
by the fact that the legislator has had to take account of the principle of occupational risk and the limitation of compensation
which is the consequence of that principle. Indeed, as has been
stated elsewhere, the principle of occupational risk, giving right
to compensation, as it does, where the death is not due to the
employer's fault and even where it is due to the unintentional
negligence of the victim, has extended the scope of the risk cove-red
and the financial responsibility of the employer, and has thus led
to the provision of compensation of statutorily limited amount,
which is doubtless lower than full compensation for the economic
loss actually suffered.
Statistics as to the distribution of accidents according to the
responsibility involved in their causation are of too uncertain
and contradictory a character for it to be possible to deduce from
them what the equitable difference would be between full compensation and compensation as limited by statute.
THE MAXIMUM AND MINIMUM LIMITS OF TOTAL COMPENSATION
It has already been shown in Chapter 1 (The Basic Wage) that
many laws limit compensation by providing a maximum and a
minimum for the basic wage according to which compensation is
calculated. These limits restrict the operation on the basic wage
of the percentage in case of a pension or the multiple in case of a
lump sum, which already constitute in themselves a limit. The
object is always the same: to prevent the award of excessively
small amounts to the lowest-paid workmen and to avoid placing
upon the employers too -heavy a financial burden in respect of
the better-paid workmen.
— 229 —
The Maximum Limit of Total Compensation
The level at which the maximum limit of the total compensation
is fixed has a very important influence on the practical value of
compensation. Indeed, the percentage of the basic wage which
represents compensation may be very high (90 per cent., for
example) without giving rise to a very heavy payment, if the free
operation of the percentage is prevented by the imposition of a
maximum limit which is below the average leA^el of the earnings
of skilled workmen.
The total amount of compensation is subjected to a maximum
limit in the following countries: Argentina, Australian Commonwealth and States, Great Britain, Irish Free State, Newfoundland,
New Zealand, Quebec, Saskatchewan and South Africa.
Compensation is limited by the fixing of a maximum limit for
the basic wage in the following countries, as has been mentioned
in the first chapter: Austria, Belgium, Brazil, Bulgaria, Canadian
Provinces except Quebec and-Saskatchewan, Chile, Cuba, Czechoslovakia, Denmark, Finland, France, Germany, Greece, Hungary,
India, Italy, Netherlands, Norway, Peru, Poland (former German
territory), Portugal, Roumania, Serb-Croat-Slovene Kingdom.
Sweden, Switzerland, Uruguay.
Finally, there is no limit to the total amount of compensation
in Bolivia, Ecuador, Esthonia, Guatemala, Japan (Factory Act),
Lithuania, Panama, Poland (former Austrian and Russian territories), Russia, Salvador and (for manual workmen only), Spain.
The Minimum Limit of Total Compensation
Provisions for minimum compensation are to be found in about
two-thirds of the laws. Here also the minimum is determined by
the minimum limit of the basic wage, or is a sum expressly
specified in the law.
The countries employing the former method have been enumerated in the chapter on the basic wage; they are Austria, Bolivia
Bulgaria, Chile, Denmark, Ecuador, Esthonia, Finland, Germany,
India, Italy, Latvia, Lithuania, Luxemburg, Norway, Panama,
Peru, Poland (former German territory), Salvador, Serb-CroatSlovene Kingdom, Spain, Sweden.
Minimum compensation is specified in the laws of the Australian
Commonwealth and States, Great Britain, Irish Free State, Greece,
Japan, Newfoundland, New Zealand, Quebec.
— 230 —
§ 3. — The Distribution of Compensation among the Relatives
The maximum and minimum limits of compensation having
been dealt with, one may proceed to examine how compensation
is distributed among the various categories of dependants.
Compensation can be distributed by two distinct methods, according as the share of the dependant is or is not determined by law.
According to the first method compensation up to the maximum
amount which the law permits is distributed by the judge, or other
public authority administering workmen's compensation, in such
shares as seem most equitable in the circumstances, taking into
account the extent to which each relative was in fact maintained
by the deceased.
The dominant principle here appears to be compensation according to need. Relatives are classed as totally or partially dependent.
If any total dependant is left, the maximum compensation is
awarded. Partial dependants are admitted to share with total
dependants. If, however, partial dependants only are left, the
maximum may or may not be awarded, according to the discretion
of the judge (Australian Commonwealth and States, India, Irish
Free State, Newfoundland, New Zealand, Quebec, Saskatchewan,
South Africa). The same method of distribution is applied in
Great Britain, but additional compensation beyond the ordinary
maximum is awarded if the total dependants include children
under 15. The law provides for the payment of three years'
earnings in the case of death, and, in addition, the sum of the
weekly payments represented by a pension of 15 per cent, of annual
earnings in respect of each child under 15 years from the death
of the parent until that age is reached. There is no provision.
however, that this additional sum shall be allotted to the child.
The remaining countries adopt the second method. For each
relative, according to the category to which he belongs (widow or
idower, child, parent, etc.), the law prescribes a specific percentage
annual earnings. The claims of the relatives are satisfied in a
certain order of precedence up to the maximum total amount
which the law permits. The existence of the condition of dependence is generally presumed in the case of the widow and children,
but has to be proved in the case of other relatives. Under the
first method the question of precedence among the relatives does
not arise. Under the second method, on the contrary, the provision
of an order in which claims are to be satisfied is essential.
In all the countries which use the second method, the widow or
widower and child occupy a privileged position legally secured to
— 231 —
them. Their claims must be fully satisfied before those of other
relatives can be considered; but the relict and children generally
enjoy the same precedence, and, in the event of there being numerous
children, either the shares of the widow or widower and the children
are reduced in the same proportion, or the shares of the children
only are reduced. However, in certain countries grandchildren
are admitted to share with children provided that they were
dependent on the deceased (Ecuador, Greece, Italy). In Argentina
and Brazil grandchildren are compensated by right of representation (per stirpes). In Belgium grandchildren share by right of
representation with children, but only in the absence of the widow
or widower. The law of Uruguay is unique in placing grandchildren,
brothers, sisters and cousins on the same footing as children.
The widow or widower, the children and, in certain countries,
as we have seen, other minors assimilated to children, thus have the
first place in the order of precedence. How are the succeeding
places filled ?
There is much diversity in the order of precedence adopted in
the various countries for relatives other than the widow or widower
and children. Nevertheless in most countries ascendants occupy
either first or first and second places after the widow or widower
and children. Brothers and sisters usually occupy the final place.
Difference of principle is specially apparent in the rank given to
the claims of grandchildren; sometimes, as already mentioned,
they have the same rights as children, sometimes they follow and
sometimes they precede ascendants; but they invariably come
before brothers and sisters.
The laws which provide for the distribution of compensation
to each category of relatives in shares fixed by statute can be divided
into two groups according as either the total compensation is
awarded whatever the number of dependants, or only the statutory
share is awarded to each dependant even though the total compensation is not exhausted—the case arises when the accident victim
leaves few dependants.
The first method is followed in Argentina. Belgium, Greece, Italy
and Japan (Factory Act).
The second method is adopted by the majority of countries, and,
in particular, by the following : Austria, Brazil, Belgium, Canadian
Provinces except Quebec and Saskatchewan, Chile, Cuba, Czechoslovakia, Ecuador, Finland, France, Germany, Guatemala, Hungary,
Netherlands, Norway, Peru, Poland, Portugal, Roumania, SerbCroat-Slovene Kingdom, Spain, Sweden, Switzerland, Uruguay.
— 232 —
A table has already been given showing the total compensation in
each country. It would be possible to prepare tables showing
the proportion of that total due to each relative in any conceivable
case, but, owing to the very large number of possible combinations
and the complications introduced by precedence, the space required
would be prohibitive. At the same time it may be interesting to
compare the percentage of the total compensation allotted under
the different laws in a few simple cases.
PERCENTAGE OF TOTAL COMPENSATION
Country
Argentina
Austria
Belgium
Brazil
Bulgaria
Chile
Cuba
Czechoslovakia
Ecuador
Esthonia
Finland
France
Germany
Greece
Guatemala
Hungary
Italy
Latvia
Lithuania
Luxemburg
Netherlands
Norway
Peru
Poland
(former
Austrian and
Russian
territories)
Poland (former
German t e r r i tory)
Portugal
Roumania
Salvador
Serb - Croat - Slovene Kingdom
Spain
Sweden
Switzerland
Uruguay
Widow and three children
only left
Widow
Children
Three
orphans
only left
25
30
60
50
40
33%
33%
30
50
50
50
25
40
30
30
40
50
50
25
40
40
33%
75
67%
40
50
60
66%
41%
6 7 Vi
50
50
50
58%
75
60
70
67%
60
50
50
75
60
60
66%
100
90
100
66%
100
100
83%
90
83%
100
100
100
100
100
75
100
100
100
100
100
100
100
100
100
30
100
66%
100
50
50
30
50
50
N o t fixed
50
33%
100
33%
30
100
50
50
33%
100
40
91
30
67%
90
30
25
33%
33%
25
75
58%
66%
75
100
100
100
100
31
50
33%
40.
30
69
50
66%
60
53
100
100
75
100
90
331/3
Other
relatives
only left
33%
66%
—
25
33%
42
37%
33%
45
— 233 —
§ 4. — Allowances for Funeral Expenses
The funeral expenses of the deceased are paid over and above
other compensation in every country except Australia, Great Britain,
India, Irish Free State, Newfoundland and South Africa, where
they are paid only in the absence of any dependants, and in
Italy, where the law contains no mention of them. A maximum
limit is always specified. These maxima exhibit a very wide
variation. A simple method of comparing them is to express
them as ratios of the respective maximum annual earnings taken
as the basis for compensation in the case of death. This procedure, of course, ignores the difference in funeral costs in relation
to the general cost of living in various countries, which may
be very considerable. The manner of conducting a funeral is
largely settled by custom; thus, if custom prescribes a simple
funeral the maximum expenses allowed in respect of it may well
be low relative to the maximum basic wage, and conversely.
Nevertheless, the fact of the existence of this wide variation is
interesting in itself, and some examples of the ratios referred to
may be given, although no sure conclusions as to the adequacy
of the amounts allowed can be drawn from them.
Considering first the countries in which funeral expenses are paid
in addition to other compensation, we find that the ratio of the
maximum amount which can be allowred for such expenses to the
maximum annual earnings is as follows in the various countries:—
1
Argentina
Netherlands
/ 12
V20
1
Belgium
New Zealand.
/b
/100
Brazil
Norway
V40
v*
Bulgaria
Peru
Vo
Ve
Canada (8 provinces)
Russia
V12
Chile
Czechoslovakia
Denmark
Finland
Hungary
v -v»
M
V15
Via
V12
v«
Serb-Croat-Slovene Kingdom 1/J(I
Sweden
Vio
1
Switzerland
/150
Uruguay
V19
Vs
If the figure for New Zealand be neglected, since the sum awarded
is intended to cover medical as well as funeral expenses, these
ratios show a variation from V 6 to 1 /150, which is truly astonishing.
In the countries where funeral expenses are allowed only if
no other compensation is payable the ratio is on the average
rather higher. The sum awarded is intended to cover medical
as well as funeral expenses. The ratios are as follows:
I r i s n F r e e st£
Australia (8 laws) Vs'Vs
*te 1/10
1
Great Britain
/ia
Newfoundland 1 ¡ l 0
India
V20
South Africa
V6
— 234 —
COMPARATIVE
TABLE
SHOWING
Maximum and minimum t o t a l
(a) pension, or (b) l u m p sum
COUNTRY
Maximum
Minimum
PROVISIONS
RELATING
(a) C o m m u t a t i o n of
pension for l u m p
sum, or
(b) Disposal of l u m p
sum
Funeral expenses
ARGENTINA
(b) Thousand times.
daily earnings, but
not more t h a n 6,000
pesos.
(o) L u m p sum is
invested in purchase
of annuities.
Not more than
100 pesos.
AUSTRALIA
Commonwealth
(Seamen and
Workmen)
New South
Wales
Queensland
South Australia
Tasmania
Victoria
Western
Australia
(6) 200 pounds ».
(6) Three years'
(b)
Compensation
earnings, b u t not
is dealt with as
more t h a n 500 pds 2 .
judge directs *.
Less any p a y m e n t s i nade before d e a t h .
Not more t h a n
30 pounds, payable only if no
other compensation is d u e 5 .
AUSTRIA
(a) 6 6 % % of annual earnings, but
not more t h a n 12
million crowns a
year.
(a)
Commutation
by agreement with
relative if poor law
a u t h o r i t y responsible for him consents.
10 % of annual
pension.
BELGIUM
(b) L u m p sum equivalent t o capital of
life a n n u i t y of 30 %
of annual earnings
based on age of
workman at death.
BOLIVIA
(6) Two years' earnings.
(a) 1,200,000
crowns a year.
(b) Shares of relict
and ascendants are
invested in purchase
of life annuities.
Shares of other relatives are invested in
purchase of temporary annuities ceasing when beneficiary
reaches 16 years. Relict and ascendants
may request judge to
commute not more
t h a n 33 V3 % of pension for lump sum.
(6) 1,500 bolivianos in respect
of deceased working 300 days a
year.
(5) L u m p sum is
paid direct to beneficiaries.
75 francs.
Not more t h a n
100 bolivianos.
i The term 'relict' is used throughout in this table to mean 'widow or widower', in order to save space
— s New South Wales, and Western Australia: 500 pounds; Queensland, South Australia and Victoria
600 pounds; Tasmania, 400 pounds.— s New South Wales and Queensland: 300 pounds; Tasmania am
Victoria: 200 pounds; South Australia and Western Australia: 400 pounds. — * These provisions are th
— 235 —
TO COMPENSATION IN CASE OF DEATH
Relatives entitled
to compensation
Compensation to
relict i
Compensation
orphans
to
Compensation to
other relatives
Relict, children under 22, parents, grandparents, grandchildren under 16, brothers
and sisters under 16.
Relatives other than
relict and children
must be dependent.
If no descendants or
Relict and each child
ascendants are left, re- share whole sum equallict receives whole sum. ly. Orphans share whole
If descendants or ascend- sum.
ants are left, relict and
each of them share
whole sum equally.
Relict, children, parents, grandparents,
grandchildren, brothers, sisters, stepchildren, stepfather, stepmother, half-bro thers,
half-sisters.
All must be dependent 6 .
Judge determines distribution of compensation among relatives.
If any totally dependent relatives are left, compensation is three years'
earnings.
If only partially dependent relatives are left, compensation is fixed by judge*.
Widow, incapacitated widower, children
under 15, parents,
grandparents, grandchildren under 15,
brothers and sisters
under 15.
Relatives other than
widow and children
must be dependent.
Relict receives 20 %
of annual earnings.
Widow's pension ceases
on re-marriage when
lump sum of three years'
pension is paid.
Each child receives
15 % of annual earnings. Each orphan rereives 20 %.
If pensions of relict and
children do not exhaust
total pension, other relatives share remainder
up to 20 % of annual
earnings in following
order of precedence :
parents, grandparents,
and grandchildren, brothers and sisters.
Relict, children under 16, parents, grandparents, grandchildren under 16, brothers and sisters under
16.
Relatives other than
children must be dependent.
If several children are
left, relict receives 60 %
of whole sum. If only
one child or other relatives are left, relict receives 80%. If no other
relatives are left, relict
receives whole sum.
If children and relict
are left, children share
40% of whole sum. If
one child and relict are
left, child receives 20%
Orphans share whole
sum.
If no relict is left,
grandchildren
share
whole sum with children
by right of representation. If no relict or
children are left, whole
sum is awarded to grandchildren and ascendants.
If only brothers and
sisters are left, they
share whole sum.
Persons having legal
claim to maintenance.
Compensation is distributed among relatives in accordance with provisions
of Civil Code.
Grandchildren are compensated by right of representation. If no descendants are left, each
parent or grandparent
shares whole sum equally with relict. If no descendants or relict are
left, parents or grandparents share whole sum.
If no other relatives are
left, brothers and sisters
share whole sum.
ame in all Australian Acts. — 5 New South Wales and South Australia: 20 pounds;6 Queensland :
0 pounds; Tasmania: 30 pounds; Victoria: 75 pounds; Western Australia: 100 pounds. — These profitons are the same in all Australian Acts except Commonwealth (Workmen) Act which includes mother-inaw and South Australia Act which includes step-brother and step-sister.
— 236 —
COMPARATIVE
TABLE
Maximum and m i n i m u m t o t a l
(a) pension, or (b) l u m p sum
COUNTRY
Minimum
Maximum
BRAZIL
(b) Three years'
earnings, but not
more than 7,200 muréis.
SHOWING
PROVISIONS
(a) Commutation of
pension for lump
sum, or
(b) D i s p o s a l o ! l u m p
sum
Ditto
RELATING
Funeral expenses
100 milreis.
Less a n y p a y m e n t s made before death.
50 times daily
earnings.
BULGARIA
(a) Total pension is same as t h a t payable to workman so incapacitated as to
need an a t t e n d a n t .
I t is graduated
as follows:
Daily earnings
Annual
pension
(levas)
(levas)
15 and under
3.600
16—30
4,800
31—45
6,000
46—60
7,500
61 and over
9,000
CANADA
Alberta
(a) R a t e of total pension is fixed by
s t a t u t e at 65 dollars a m o n t h .
(a)
Commutation
at discretion of
Workmen's Compensation Board.
Not more than
100 dollars.
Ditto
(a) Commutation at
discretion of Workmen's Compensation
Board if requested by
relatives.
Ditto
Manitoba
(a) R a t e s of pension to relict and each
child are fixed by s t a t u t e .
(a) Commutation at,
discretion of W o r k - '
men's Compensation
Board if agreed to
by relatives; lump
sum to be applied
as Board directs.
Not more t h a n
150 dollars.
New
Brunswick
(a) Rates of pension ' to relict and
each child are fixed by s t a t u t e , but
total pension must not exceed 55 %
of annual earnings; m a x i m u m 825 dollars a year.
(a) Commutation at
discretion of W o r k men's Compensation
Board.
Not more t h a n
100 dollars.
British
Columbia
— 237 —
TO COMPENSATION IN CASE OF DEATH
Relatives entitled
t o compensation
Í
to
Compensation
orphans
to
Compensation to
other relatives
Relict,
children,
parents, grandparents,
grandchildren.
None need be dependent.
I f children a r e left,
relict receives 50 % of
whole sum.
If no other relatives
are left, relict receives
66 y3% of whole s u m .
Children share 50 % of
whole sum.
Orphans
share 66?;,%.
Grandchildren are compensated by right of representation. If no relict
or descendants are left,
ascendants share 66 % %
of whole sum. If no relatives are left, a dependant receives 33 y, % .
Widow, incapacitated
widower,
sons
under 21, unmarried
d a u g h t e r s u n d e r 21,
parents,
unmarried
brothers and sisters
under 21.
Relatives o t h e r t h a n
widow and children
must be dependent.
Relict receives 40 %
of t o t a l pension.
Pension ceases on remarriage.
E a c h child
receives
30 % of total pension.
E a c h orphan receives
50%.
Widowed
mother ¡s
compensated as child. If
pensions of relict and
children do not exhaust
total pension, each parent, brother, and sister
receives 30 % of total
pension, t h e s h a r e of
each being reduced if
the m a x i m u m total pension would be exceeded.
Widow, incapacitated widower, children,
parents, grandparents,
grandchildren, brothers, sisters, stepchildren, stepfather, stepmother, half-brothers,
half-sisters.
All must be dependent.
Relict receives 35 dollars a m o n t h .
Widow's pension ceases
on re-marriage, when
lump sum of 480 dollars
is paid.
E a c h child under 16
receives 7.50 dollars a
m o n t h ; m a x i m u m of 30
dollars for all such children. E a c h orphan under
16 receives 12.50 dollars;
m a x i m u m of 50 dollars
for all such orphans.
If no relict or children
under 16 are left, other
relatives share not more
than 65 dollars a m o n t h
of which parents share
n o t more t h a n 30 dollars.
P a y m e n t s can continue
only so long as w o r k m a n ,
had he lived, would h a v e
maintained relatives.
Ditto
Ditto
If no relict or children
under 16 are left, other
relatives share not more
t h a n 45 dollars a m o n t h
of which p a r e n t s s h a r e
not more t h a n 30 dollars.
P a y m e n t s can continue
only so long as workman,
had he lived, would have
maintained relatives.
Ditto
Relict receives 30 dollars a m o n t h .
Widow's pension ceases
on re-marriage
when
l u m p sum of two y e a r s '
pension is paid.
E a c h child u n d e r 16
receives 7.50 dollars a
month.
E a c h orphan
under 16 receives 15 dollars. Pension continued
till 18 years for education.
If no relict or children
under 16 are left, other
relatives share not more
t h a n 40 dollars a m o n t h .
P a y m e n t s can continue
only so long as w o r k m a n ,
had h e lived, would h a v e
maintained relatives.
Ditto
Ditto
E a c h boy under 16 and
girl u n d e r 18 receives
7.50 dollars a m o n t h .
E a c h male orphan under
16 and female orphan
under 18 receives 15
dollars a month.
If no relict, boys under
16, o r girls u n d e r 18 a r e
left, other relatives m a y
be compensated at a r a t e
proportional to their
pecuniary loss. P a y m e n t s
can continue only so
long as workman, h a d
he lived, would h a v e
maintained relatives.
Ditto
|
Compensation
relict
(COnt.)
— 238 —
COMPARATIVE TABLE SHOWING PROVISIONS
Maximum and minimum total
(a) pension, or (b) lump sum
COUNTRY
Maximum
Minimum
(a) Commutation of
pension for lump
sum, or
(6) Disposal of lump
sum
RELATING
Funeral expenses
CANADA
(coni.)
Nova Scotia
(a) Rate of total pension is fixed by
statute at 60 dollars a month.
(a) Commutation at
discretion of Workmen's Compensation
Board.
Not more than
75 dollars.
Ontario
(a) Rates of pension to relict and each
child are fixed by statute, but total
pension must not exceed 66% % of
annual earnings — maximum 1,333.33
dollars a year, nor be less than 12.50
dollars a week for relict and one or
more children.
(a) Commutation at
discretion of Workmen's Compensation
Board, in the interest of relatives.
Not more than
125 dollars.
Quebec
(6) Four times annual earnings, but
not more than 3,000
dollars.
(6) Lump sum is
paid direct to relatives.
Not more than
50 dollars.
(b) 1,500 dollars.
Less any payments made before death.
Saskatchewan
(6) Three years'
earnings, but not
more than 2,500 dollars.
Ditto
Less any payments made before death.
Yukon
(6) Amount of lump sum is fixed by
statute at 2,500 dollars, less any payments made before death.
CHILE
(a) 60 % of annual
earnings, but not
more than 1,800 pesos a year.
CUBA
(a) 60 % of annual
earnings, but not
more than 657 pesos
a year.
(a) 360 pesos a
year.
(b) Compensation
is dealt with as
judge directs.
Not more than
200 pesos.
Not more than
30 pesos.
— 239 —
TO COMPENSATION IN CASE OF DEATH
Relatives entitled
to compensation
Compensation
relict
to
(COilt.)
Compensation
orphans
to
Compensation to
other relatives
Ditto
Relict receives 30 dollars a month.
Widow's pension is reduced to 20 dollars on
re-marriage and ceases
25 months thereafter.
Each child under 16
receives 7.50 dollars a
month; maximum of 30
dollars for all such children. Each orphan under 16 receives 15 dollars; maximum of 60
dollars for all such orphans.
If no relict or children
under 16 are left, other
relatives share not more
than 45 dollars a month
of which parents share
not more than 30 dollars.
Payments can continue
only so long as workman,
had he lived, would have
maintained relatives.
Ditto
Relict receives 40 dollars a month; and lump
sum of 100 dollars.
Widow's pension ceases
on re-marriage when
lump sum of two years'
pension is paid.
Each child under 16
receives 10 dollars a
month. Each orphan
under 16 receives 15 dollars.
If no relict or children
under 16 years are left,
other relatives may be
compensated at a rate
proportional to their pecuniary loss. Payments
can continue only so
long as workman, had
he lived, would have
maintained relatives.
Relict, children under 16, parents, grandparents.
Relatives other than
widow and children
must be dependent.
Judge determines distribution of compensation among relatives.
Relict, children, parents,
grandparents,
grandchildren, brothers, sisters, stepchildren, stepfather, stepmother, half-brothers,
half-sisters.
All must be dependent.
Ditto
Ditto
Ditto
Relict, children under 16, parents, grandparents, grandchildren under 16, incapacitated persons.
Persons other than
relict and children
must be dependent.
Relict receives 20 %
of annual earnings.
Pension may be commuted on re-marriage at
option of relict for lump
sum of 5 years' pension.
Children share 40 %
of annual earnings. Orphans share 60 %. No
child may receive more
than 20 %.
If no children are left,
ascendants and descendants share 30 % of annual earnings. If no relict, ascendants or descendants are left, incapacitated persons share
20%.
Relict, children under 18, parents, grandparents, brothers, sisters,
half-brothers,
half-sisters.
Relatives other than
relict and children
must be dependent.
Relict receives 20 %
of annual earnings.
Pension ceases on remarriage.
One child receives 15 %
of annual earnings, two
or three children share
25 %. Four or more
children share 4 0 % .
Orphans share 50 %.
If no relict or children
are left ascendants or
brothers and sisters
share 30 % of annual
earnings.
— 240 —
COMPARATIVE TABLE SHOWING PROVISIONS RELATING
Maximum and minimum total
(a) pension, or (b) lump sum
COUNTRY
Maximum
Minimum
(a) Commutation of
pension for lump
sum, or
(b) Disposal of lump
sum
Funeral expenses
CZECHOSLOVAKIA
(a) 66%% of annual earnings, but
not more than 8,000
crowns a year.
DENMARK
(b) Five times annual earnings, but
not more than capital of life annuity of
50 % or annual earnings based on age of
workman at death,
or 12,000 crowns,
whichever is less.
ECUADOR
(b) One year's earnings; no absolute
maximum..
(b) 150 sucres in
respect of workers in the plains,
300 sucres in
respect of workers in the mountains. (On assumption
that
year contains 300
working days.)
(b) Lump sum is
paid direct to relatives.
Not more than
50 sucres.
ESTHONIA
(a) 66%% of annual earnings; no absolute maximum.
(a) 66%% of
average earnings
of unskilled workers of same sex
and age-class as
deceased.
(a) Commutation
at request of relatives with consent
of insurance institution for lump sum of
10 years' pension
(adults), and pension
multiplied by number of years during
which it must be
paid, but not more
than 10 (minors).
Not
20,
than
daily
FINLAND
(a) 80 % of annual
earnings up to 900
marks ; 26 % % of
portion of annual
earnings in excess ef
900 marks.
(a) 240 marks a
year.
FRANCE
(a) 60 % of annual
earnings up to 4,500
francs; 15 % of portion of annual earnings between 4,500
and 15,000 francs;
7 '/2 % of annual
earnings in excess
of 15,000 francs.
(a) Commutation
by agreement with
relative if poor law
authority responsible
for him consents.
(b) 3,000 crowns.
(b) Compensation
is dealt with as
Workers' Insurance
Council directs.
Not more than
900 crowns.
200 crowns.
less than
nor more
30 times
earnings.
6 % % of annual earnings,
but not less than
50 marks.
Not more than
200 francs.
— 241 —
TO COMPENSATION IN CASE OF DEATH
Relatives entitled
to compensation
Compensation
relict
to
(cont.)
Compensation
orphans
to
Compensation to
other relatives
Widow, incapacitated widower, children
u n d e r i 5, p a r e n t s ,
grandparents, grandchildren under 1 5,
brothers and sisters
under 15.
Relatives other t h a n
widow and children
must he dependent.
Relict receives 20 %
of annual earnings.
Widow's pension ceases
on r e - m a r r i a g e when
lump sum of three years'
pension is paid.
Each child
receives
15 % of a n n u a l earnings. E a c h orphan receives 20 %.
If pensions of relict and
children do not exhaust
total pension, other relatives share remainder
up to 20% of annual
earnings in following
order of precedence :
parents,
grandparents
and grandchildren, brothers and sisters.
Relict, children, other
relatives under 18.
Relatives other t h a n
widow must be dependent.
If children are left,
s i a r e of relict is fixed by
Workers'
Insurance
Council. If no children
are left, relict receives
whole s u m .
Share of children is
fixed by Workers' I n surance Council.
Orphans share whole s u m .
If no relict or children
are left, shares of other
relatives are fixed by
Workers'
Insurance
Council.
Widow, children under 16, parents, orphan grandchildren.
Relatives other t h a n
widow and children
must be dependent.
If widow only is left,
she receives six m o n t h s '
earnings.
If widow and children
are left t h e y share one
year's earnings. Orphans
share 10 m o n t h s ' earnings.
Grandchildren are compensated as children.
Widow, children under 15, parents, grandparents, orphan brothers and sisters under 15.
Relatives other than
widow and children
must be dependent.
Widow receives 33 y, %
of a n n u a l earnings.
Pension ceases on remarriage when
lump
sum of three years'
pension is paid.
E a c h child
receives
1 6 % % of annual earnings. E a c h orphan receives 25 %.
If pensions of widow
and children do not exhaust t o t a l pension,
ascendants share
remainder up to 1 6 % %
of annual earnings, and
b r o t h e r s and sisters also
1 6 % % b o t h categories
having same rights.
Widow, incapacitated widower, children
under 16, other relatives.
Relatives other t h a n
widow and children
must be dependent.
Relict receives 40%
of annual earnings. Widow's pension ceases on
re-marrlage when lump
sum of two years' pension is paid.
E a c h child
receives
20 % of annual earnings.
E a c h orphan receives
40 %.
If no relict or children
are left, shares of other
relatives are fixed by
Insurance Council.
Relict, children under 16, parents, grandparents, grandchildren under 16.
Relatives other t h a n
relict and children
must, be dependent.
One child receives 15 %
Relict receives 20 %
of annual earnings; two
of annual earnings.
children share 25 % ;
Pension ceases on r e marriage when lump sum three children share
or more
of three years' pension . 35 % ; four
children
share
40 %.
is paid.
Each orphan receives
20%.
If no relict or children
are left, other relatives
share 30 % of annual
earnings.
16
— 242 —
COMPARATIVE TABLE SHOWING PROVISIONS
Maximum and minimum total
(a) pension, or (f>) lump sum
COUNTRY
(o) Commutation of
pension for lump
sum, or
(6) Disposal of lump
sum
RELATING
Funeral expenses
Maximum
Minimum
GERMANY
(a) 60 % of annual
earnings up to 1,800
marks; 20% of portion of annual earnings in excess of
1,800 marks.
(a) 60% of local
wage for adults.
GREAT
BRITAIN
(6) Three years'
(b) 200 pounds
earnings, but not plus family almore than 300 pds, lowance.
plus family allowance. Maximum total
compensation : 600
pounds.
Less any payments made before death.
(b) Compensation
is dealt with as
judge directs.
Not more than
15 pounds. Payable only if no
other compensation is due.
GREECE
(6) Five times annual earnings up to
2,000 drachmae; 1 Vi
times portion of earnings in excess of
2,000 drachmae.
(6)6,000 drachmae.
(b) Lump sum is
paid direct to relatives.
Not more than
60 drachmae.
HUNGARY
( Industry)
(a) 66%% of annual earnings.
(Agriculture)
INDIA
6 % % of annual earnings,
but not less than
50 marks.
Not more than
40 times daily
earnings.
Not more than
200,000 crowns.
Payable only if
no other compensation is due.
(b) Lump sum is fixed by statute.
(b) 30 times month(b) 240 rupees
ly earnings, but not
more than 2,500 rupees.
Less any payments made before death.
(6) Lump sum is
paid direct to relatives.
Not more than
50 rupees. Payable only if no
other compensation is due.
— 243 —
TO COMPENSATION IN CASE OF DEATH
Relatives entitled
to compensation
Compensation
relict
to
(coni.)
Compensation to
orphans
Compensation to
other relatives
Each child, orphan or
not, receives 20 % of
annual earnings.
If pensions of relict and
children do not exhaust
total pension, other relatives share remainder
up to 20 % of annual
earnings in following
order of precedence :
parents, grandparents,
grandchildren.
Widow, incapacitated widower, children
under 15, parents,
grandparents, orphan
grandchildren under
15.
Relatives other than
widow and children
must be dependent.
Relict receives 20 %
of annual earnings.
Pension ceases on remarriage when lump
sum of three years' pension is paid (to widow
only).
Relict, children, parents, grandparents,
grandchildren, brothers, sisters, stepchildren, stepfather, stepmother, half-brothers,
half-sisters.
All must be dependent.
Judge determines distribution of compensation among relatives.
If any totally dependent relatives are left, compensation is three years'
earnings.
If only partially dependent relatives are left, compensation is fixed by judge.
If in addition to totally dependent relatives children under 15 are left,
compensation is three years' earnings plus additional sum in respect of each
child calculatedas follows : 15% of product of average weekly earnings and
numberof weeks which will elapse between death of parent and child's fifteenth
birthday, average weekly earnings being not more than 2 pounds nor less than
1 pound.
If in addition to partially dependent relatives children under 15 are left, a
proportionate additional sum is payable.
Relict, unmarried
sons under 21, unmarried daughters,
parents, grandparents,
unmarried grandsons
under 21, unmarried
grand-daughters, unmarried brothers under 18, unmarried sisters under 21.
Relatives other than
relict and children
must be dependent.
If no other relatives
are left, relict receives
whole sum. If descendants are left, relict receives 40 %. If ascendants are left, relict receives 50 %. If brothers
and sisters are left, relict
receives 60%.
Children share 60 %
of whole sum. Orphans
share whole sum.
Grandchildren are compensated as children. If
relict but no descendants
are left, ascendants share
50 % of whole sum. If
no relict or descendants
are left, ascendants share
whole sum. If relict but
no descendants or ascendants are left, brothers
and sisters share 40 %.
If no other relatives are
left, brothers and sisters
share whole sum.
Widow, incapacitated widower, children
under 16, parents,
grandparents, grandchildren under 16.
Relatives other than
widow and children
must be dependent.
Relict receives 20 %
of annual earnings.
Widow's
pension
ceases on re-marriage
when lump sum of three
years' pension is paid.
Each child receives
15% of annual earnings.
Each orphan receives
30%.
If pensions of relict
and children do not exhaust total pension,
other relatives share
remainder up to 20 %
of annual earnings in
following order of precedence: parents, grandparents, grandchildren.
Legal heirs.
Legal heirs share 300,000 crowns in ordinary cases or 500,000 crowns
in specially deserving cases. If more than two children under 14 are left,
these sums are increased by 30,000 or 50,000 crowns respectively for the third
and successive children under 14 up to maximum of 420,000 or 700,000 crowns
respectively.
Relict, sons under
Commissioner for Workmen's Compensation determines distribution of com15, unmarried daugh- pensation among relatives.
ters, married daughters under 15, parents,
paternal grandparsnts,
orphan children under 15 of son of deceased, brothers and
sisters under 15, unmarried sisters.
None need be dependent.
— 244 —
COMPARATIVE TABLE SHOWING PROVISIONS
Maximum and minimum total
(o) pension, or (b) lump sum
COUNTRY
Maximum
IRISH FREE
STATE
(lb) Three years earnings, but not more
than 300 pounds.
Minimum
(b) 150 pounds.
(a) Commutation of
pension for lump
sum, or
(ft) Disposal of lump
sum
(b) Compensation
is dealt with as judge
directs.
Less any payments made before death.
ITALY
( Industry)
(Agriculture)
RELATING
Funeral expenses
Not more than
10 pounds. Payable only if no
other compensation is due.
(6) Five times an(6) 5,000 lire.
nual earnings, but
not more than
30,000 lire.
(6) Amount of lump sum is prescribed
by statute and depends on age, sex and
number of relatives of deceased workman. It is graduated as follows:
(6) Lump sum is
Age of
Male
Female
direct to reladeceased
(Lire)
(Lire)
i paid
tives.
12-15
3,000
2,250
15-23
6,000
3,000
1
23-55
7,500
3,750
55-65
4,500
2,250
Compensation is increased 10% up
to maximum of 50 % in respect of
widow and each child under 15.
JAPAN
(Factory Act)
(Health Insurance Act)
(6) More than
170 days' earnings; no absolute
minimum.
—
10 yen.
20 times daily
earnings but not
more than 20 yen.
—
—
—
LATVIA
(a) 66%% of annual earnings, but
not more than
100,000 roubles a
year.
(a) 66%% of
average annual
earnings of unskilled workers
of men of same
sex and age-class
as deceased.
(a) Commutation at
request of relatives
with consent of insurance institution,
for lump sum of 10
years' pension (adults) and pension
multiplied by number of years during
which it must be
paid, but not more
than 10 (minors).
Not
20,
than
daily
LITHUANIA
(a) 66%% of annual earnings, but
not more than a statutory amount.
Ditto
(a) Commutation
by agreement with
relatives for lump
sum of 10 years' pension (adults) and
pension multiplied
by number of years
during which it must
be paid, but not
more than 10 (minors)
S t a t u t o r y amount differing
according as deceas ed was adult
or minor.
less than
nor more
30 times
earnings.
— 245 —
TO COMPENSATION IN CASE OF DEATH (COTlt.)
Relatives entitled
to compensation
Compensation to
relict
Compensation
orphans
to
Compensation to
other relatives
Relict, children, parJudge determines distribution of compensation among relatives.
ents, grandparents,
If any totally dependent relatives are left, compensation is three years,
grandchildren, broth- earnings.
ers, sisters, step-childIf only partially dependent relatives are left, compensation is fixed by
ren, step-father, step- judge.
mother, half-brothers,
half-sisters.
All must be dependent.
Grandchildren are compensated as children. If
relict but no descendants
are left, ascendants share
50 % of whole sum. If
no relict or descendants
are left,ascendants share
whole sum. If relict but
no descendants or ascendants are left, brothers and sisters share
40 %. If no other relatives are left, brothers
and sisters share whole
sum.
If no other relatives
are left, relict receives
whole sum. If descendants are left, relict receives 40 %. If ascendants are left, relict receives 50 %. If brothers
and sisters are left,
relict receives 60 %.
Children share 60 %
of whole sum. Orphans
share whole sum.
Compensation is divided into shares producing
pensions of equal amount
to each child under 12,
which are reduced by
50 % when child's age
reaches 12.
Widow, children,
Relict receives whole
parents, grandparents, sum.
grandchildren, brothers and sisters, other
dependants.
All must be living
in house of deceased
at time of death.
Orphans share whole
sum.
If no widow or orphans
are left, other relatives
share whole sum in following order of precedence : parents, grandchildren, grandparents,
brothers and sisters,
other dependants, males
excluding females and
the elder excluding the
younger in each category.
—
—
—
Widow, children under 15, parents, grandparents,
orphan
brothers and sisters
under 15.
Relatives other than
widow and children
must be dependent.
Widow receives 33 >/3 %
of annual earnings.
Pension ceases on remarriage when lump
sum of three years' pension is paid.
Each child receives
16%% of annual earnings. Bach orphan receives 25 %.
If pensions of widow
and children do not exhaust total pension, ascendants share remainder up to 16 % % of annual earnings, and brothers and sisters also
16 % %, both categories
having same rights.
Ditto
Ditto
Ditto
Ditto
Relict, children under 18, parents, grandparents, grandchildren
under 18, brothers
and sisters under 18.
Relatives other than
relict and children
must be dependent.
—
— 246 —
COMPARATIVE TABLE SHOWING PROVISIONS
Maximum and minimum total
(a) pension, or (6) lump sum
COUNTRY
Maximum
Minimum
LUXEMBURG
(a) 60 % of annual
earnings, up to 1500
francs; 20% of portion of annual earnings between 1,500
and 3,750 frs. Plus
cost of living allowance.
(a) 60 % of average annual earnings of unskilled
workman. Plus
cost of living allowance.
NETHERLANDS
( Industry)
(Agriculture)
(a) 60% of daily
earnings, but not
more than 4.80 gulden a day.
(Seamen)
Ditto
NEWFOUNDLAND
(6) Three years'
earnings, but not
morethan 1,500 dollars.
(a) Commutation of
pension for lump
sum, or
(o) Disposal of lump
sum
RELATING
Funeral expenses
6 % % of annual earnings,
but not more
than 80 nor less
than 40 francs.
30 times daily
wage, but not
more than 240
gulden.
(6) 750 dollars.
(6) Compensation
is dealt with as
judge directs.
Not more than
50 dollars.
Payable only if
no other compensation is due.
(b) Compensation
is dealt with as
Court of Arbitration
directs.
Not more than
50 pounds.
Less any payments made before death.
NEW ZEALAND
(6) 156 times weekly earnings, but not
more than 750
pounds.
(6) 200 pounds.
Less any payments made before death.
— 247 —
TO COMPENSATION IN CASE OF DEATH (COM.)
Relatives entitled
to compensation
Compensation to
relict
Compensation to
orphans
Compensation to
other relatives
Widow, incapacitated widower, children
under 15, parents,
grandparents, orphan
grandchildren under
15.
Relatives other than
widow and children
must be dependent.
Relict receives 20 % of
annual earnings.
Pension ceases on remarriage, when lump
sum of three years' pension is paid.
Each child, orphan or
not, receives 20% of
annual earnings.
If pensions of relict and
children do not exhaust
total pension, other relatives share remainder
up to 20 % of annual
earnings in following
order of precedence:
parents, grandparents,
grandchildren. (Cost of
living allowance is not
paid in respect of pensions of ascendants.)
Widow, incapacitated widower, children
under 16, parents,
grandparents, orphan
grandchildren under
16, parents-in-law.
Relatives other than
widow and children
must be dependent.
Relict receives 30 %
of daily earnings.
Pension ceases on remarriage when lump
sum of two years' pension is paid.
Each child receives
15% of daily earnings.
Each orphan receives
20%.
If pensions of relict and
children do not exhaust
total pension, other relatives are compensated
in following order of precedence: (1) parents
share 30 % of daily
earnings; (2) grandparents share 30 % ; (3)
Each grandchild receives
20 % ; (4) parents-inlaw share 30 %.
Widow, children under 16, parents, grandparents, parents-inlaw.
Relatives other than
widow and children
must be dependent.
Widow receives 30 %
of daily earnings.
Pension ceases on remarriage when lump
sum of two years' pension Is paid.
Ditto
If pensions of widow
and children do not exhaust total pension,
other relatives are compensated in following
order of precedence:
(1) parents share 30%
of daily earnings; (2)
grandparents share 30 %
(3) parents-in-law share
30%.
Relict, children, parents, grandparents,
grandchildren, brothers, sisters, stepchildren, step-father,
step-mother,
halfbrothers, half-sisters.
All must be dependent.
Judge determines distribution of compensation among relatives.
If any totally dependent relatives are left, compensation is three years'
earnings.
If only partially dependent relatives are left, compensation is fixed by judge.
Relict, children, parents, grandparents,
grandchildren, brothers, sisters, stepchildren, step-father,
step-mother,
halfbrothers, half-sisters.
Relatives other than
widow and children
under 16 must be
dependent.
Court of Arbitration determines distribution of compensation among relatives.
If any totally dependent relatives are left, compensation is 156 times weekly
earnings.
If only partially dependent relatives are left, compensation is Oxed by Court
of Arbitration.
— 248 —
COMPARATIVE TABLE SHOWING PROVISIONS
Maximum and minimum total
(a) pension, or (b) lump sum
COUNTRY
Maximum
Minimum
NORWAY
( Industry)
(a) 50 % of annual
earnings, but not
more than 1,000
crowns a year.
(a) 225 crowns
a year.
(Seamen)
(a) 50 % of basic
wage, but not more
than 1,350 crowns
a year.
(a) 375 crowns.
( Fishermen)
(a) Rate of pension is fixed by statute
and depends on age. It is 600 crowns
a year in respect of deceased under 60
and 500 crowns in r ;spect of deceased
over 60.
PANAMA
(b) Two years' earnings; no absolute
maximum.
PERU
(a) 33 % of annual
earnings, but not
more than 40 pounds
a year.
Pension is increased
was woman or child
POLAND
Former German
Territory
(a) 60% of annual earnings up to
1800 zloty; 20%
of portion of earnings in excess of
1800 zloty.
Former Austrian (a) 66 % % of annual earnings.
and Russian
Territories
PORTUGAL
(a) 60 % of annual
earnings up to 700
escudos; 30% of
portion of earnings
in excess of 700 escudos.
(b) 600 balboas
in respect of deceased working
300 days a year.
(a) Commutation of
pension for lump
sum, or
(b) Disposal of lump
sum
RELATING
Funeral expenses
50 crowns.
Not more than
50 crowns in Norway or 100
crowns abroad.
Not more than
75 crowns.
(b) Employer has
option of substituting for lump sum
pension of 25 % of
annual earnings.
(a) Commutation at
(a) Minimum
varies from 4 to option of employer
for lump sum of two
15 pounds a year
accordingto region years' earnings.
25 % if deceased
under 18.
Amount depends
on social position
of workman.
Two months'
earnings.
6 % % of annua] earnings.
(a) 60 % of
local wage for
adults.
(a) Commutation
by agreement with
relative if poor law
authority responsible for him consents.
Not more than
66 y3 % of monthly earnings.
Not more than
15 times daily
earnings.
— 249 —
TO COMPENSATION IN CASE OF DEATH
Relatives entitled
to compensation
Compensation
relict
to
(COllt.)
Compensation
orphans
to
Compensation to
other relatives
Widow, incapacitated widower, children
under 15, parents,
grandparents.
Relatives other than
widow and children
must be dependent.
Relict receives 20 %
of annual earnings.
Widow's pension ceases
on re-marriage^ when
lump sum of three years'
pension is paid.
Each child receives
15 % of annual earnings,
maximum of 30 % for
all children.
Each orphan receives
20% ¡maximum of 50%
for all orphans.
If pension of relict and
children do not exhaust
total pension, parents
or grandparents share
remainder up to 20 % of
annual earnings.
Widow, children under 15, parents, grandparents.
Relatives other than
widow and children
must be dependent.
Widow receives 20 %
of basic wage.
Pension ceases on remarriage when lump
sum of three years' pension is paid.
Ditto
Ditto
Widow, children unWidow receives 50 %
der 15, parents, grand- of total pension.
parents.
Pension ceases on reNone need he de- marriage when lump
pendent.
sum of three years' pension is paid.
Each child
25% of total
maximum of
all children.
Each orphan
40%.
Widow, children unWidow receives 11 %
der 16, parents, grand- of annual earnings.
parents, grandchildPension ceases on reren under 16.
marriage.
Relatives other than
widow and children
must be dependent.
Children share 22 %
of annual earnings.
Orphans share 33%.
If no children are left,
grandchildren are compensated as children.
If no widow or descendants are left, ascendants share 30 % of
annual earnings.
Widow, incapacitated widower, children
under 15, parents,
grandparents, orphan
grandchildren under
15.
Relatives other than
widow and children
must be dependent.
Relict receives 20 %
of annual earnings.
Pension ceases on remarriage when lump
sum of three years' pension is paid (to widow
only.)
Each child, orphan or
not, receives 20 % of
annual earnings.
If pensions of relict and
children do not exhaust
total pension, other relatives share remainder
up to 20 % of annual
earnings in following
order of precedence:
parents, grandparents,
grandchildren.
Widow, incapacitated widower, children
under 15, parents,
grandparents, grandchildren under 15,
brothers and sisters
under 15.
Relatives other than
widow and children
must be dependent.
Relict receives 20 %
of annual earnings.
Widow's pension ceases
on re-marriage when
lump sum of three years'
pension is paid.
Each child receives
15% of annual earnings.
Each orphan receives
20%.
If pensions of relict and
children do not exhaust
total pension, other relatives share remainder
up to 20% of annual
earnings in following
order of precedence:
parents, grandparents,
and grandchildren, brothers and sisters.
Relict, sons under
14, daughters under
16, parents, grandparents, persons under 14.
Relatives other than
relict and children
must be dependent.
Relict receives 20 %
of annual earnings.
Pension ceases on remarriage when lump
sum of three years' pension is paid.
One child receives 15 %
of annual earnings; two
children share 25 % ;
three children share
35 % ; four or more
children share 40 %.
Each orphan receives
20%.
If no children are left,
other relatives share
40% of annual earnings.
receives
pension;
50 % for
receives
If pensions and of relict
children do not exhaust
total pension, parents or
grandparents share 40 %
of total pension.
— 250 —
COMPARATIVE TABLE SHOWING PROVISIONS
Maximum and minimum total
(a) pension, or (6) lump sum
COUNTRY
Maximum
Minimum
(a) Commutation of
pension for lump
sum, or
(6) Disposal ot lump
sum
RELATING
Funeral expenses
RO UM AN IA
(o) 60 % of annual
earnings, but not
more than 1,440 lei
in respect of deceased working not more
than 300 days a year,
plus cost of living
allowance of 150 % .
Amount varying from 100 to
350 lei according
to earnings of
deceased,
plus
cost of living allowance of 1,000
lei.
RUSSIA
(a) 66 % % of average monthly earnings.
Not more than
1 month's earnings.
SALVADOR
(6) Two years' earnings; no absolute
maximum.
(6) 300 pesos in
respect of deceased working 300
days a year.
Not more than
40 pesos.
SERB-CROATSLOVENE
KINGDOM
(a) 100% of annual
earnings, but not
more than 12,000
dinars a year.
(a) 600 dinars a
year.
30 times daily
earnings, but not
more than 1,200
dinars.
SOUTH
AFRICA
(6) Two years' earnings, but not more
than 500 pounds.
(6) Compensation
is dealt with as
judge directs.
Not more than
40 pounds. Payable only If no
other compensation is due.
(6) Employer has
option of substituting for lump sum
pension calculated
as follows:
(1) 40% of annual
earnings to relict
and children or
grandchildren,
or
(2) 20% to relict
only, or (3) 10%
to parents or grandparents.
Widow's
pension ceases on
re-marriage.
Amount varies
from 100 to 200
pesetas according to size of
town.
Less any payments nlade before death.
SPAIN
(6) Two years' earnings ; no absolute
maximum.
(b) 1,200 pesetas in respect of
deceased working 300 days a
year.
— 251 —
TO COMPENSATION IN CASE OF DEATH
(cOilt.)
Relatives entitled
to compensation
Compensation to
relict
Compensation
orphans
to
Compensation to
other relatives
Widow, children under 16.
None need be dependent.
Widow receives 20 %
of annual earnings.
Pension ceases on remarriage.
Relict, children under 16, parents, brothers and sisters under
16, adult relatives
having children under
8 to support.
All must be dependent and unable to
work.
One relative receives 33 % % of average monthly earnings. Two relatives
share 50 % of average monthly earnings Three or more relatives share 66 % %
of average monthly earnings.
Widow, children under 16, parents over
60, grandparents over
60, orphan grandchildren under 16.
Relatives other than
widow and children
must be dependent.
Widow receives
years' earnings.
two
If widow and children
are left, they share two
years' earnings. Orphans
share two years' earnings.
Grandchildren are compensated as children. If
no relict or descendants
are left, parents or grandparents share six months'
earnings.
Widow, incapacitated widower, children
under 16, parents,
grandparents, grandchildren under 16,
brothers and sisters
under 16.
Relatives other than
widow and children
must be dependent.
Relict receives 33%%
of annual earnings.
Widow's pension ceases
on re-marriage when
lump sum of three years'
pension is paid.
Each child receives
25 % of annual earnings.
Each orphan receives
33%%.
If pension of relict and
children do not exhaust
total pension, other relatives share remainder
up to 33 % % of annual
earnings in following
order of precedence :
parents, grandparents,
grandchildren, brothers
and sisters.
Children share 40 %
of annual earnings.
Orphans share 60 %.
Judge determines distribution of compensation among relatives.
Relict, children, parents, grandparents,
If any totally dependent relatives are left, compensation is two years' earngrandchildren, broth- ings.
ers.slsters, step-childIf only partially dependent relatives are left, compensation is not more than
ren, step-father, step- three times annual value of benefits received from deceased by such relatives.
mother, half-sisters,
half-brothers.
All must be dependent.
Widow, incapacitated widower, children
under 18, parents over
60, grandparents over
60, orphan grandchildren under i&.
Relatives other than
widow and children
must be dependent.
Relict receives
year's earnings.
one
If relict and children
are left, they share two
years' earnings.
Orphans share two
years' earnings.
If no children are left,
grandchildren are compensated as children. If
no relict or descendants
are left, parents or grandparentsreceive 10 months'
earnings, if there are two
or more; seven months'
earnings if there is only
one.
— 252 —
COMPARATIVE
TABLE
Maximum and minimum total
(a) pension, or(6) lumpsum
COUNTRY
Maximum
Minimum
SWEDEN
(a) 66 y, % of annual earnings, but
not more than 1,600
crowns a year.
(a) 300 crowns
a year.
SWITZERLAND
(a) 60 % ol annual
earnings, but not
more than 3,600
francs.
URUGUAY
(a) 66%% of annual earnings, but
not more than 500
pesos a year.
SHOWING
PROVISIONS
(a) Commutation of
pension for lump
sum, or
(o) Disposal of lump
sum
RELATING
Funeral expenses
10 % of annual
earnings, but not
more than 100
crowns.
(a) Commutation
by agreement with
relatives.
Not more than
40 francs.
Not more than
40 pesos.
— 253 —
TO COMPENSATION IN CASE OF DEATH
Relatives entitled
to compensation
Compensation
relict
to
(concluded)
Compensation to
orphans
Compensation to
other relatives
Relict, children under 16, parents.
Relatives other than
relict and children
must be dependent.
Relict receives 25 %
of annual earnings.
Pension ceases on remarriage when lump
sum of three years' pension is paid.
Each child, orphan or
not, receives 16 54% of
annual earnings.
If no relict or children
are left, parents receive
25 % of annual earnings.
Widow, incapacitated widower, children
under 16, parents,
grandparents, brothers and sisters under
16.
None need be dependent.
Relict receives 30 %
of annual earnings.
Widow's pension ceases
on re-marriage when
lump sum of three years'
pension is paid.
Each child receives
15% of annual earnings.
Each orphan receives
25%.
If pensions of relict and
children do not exhaust
total pension, other relatives share remainder
up to 20 % of annual
earnings.
Widow, incapacitated widower, children
under 16, parents,
grandparents, grandchildren under 16,
brothers and sisters
under 16, cousins under 16.
Relatives other than
widow and children
must be dependent.
Relict receives 20 %
of annual earnings.
Pension ceases on remarriage when lump
sum of two years' pension is paid.
One child receives 15 %
of annual earnings; two
children share 25%;
three share 35%; four
or more share 40 %.
Each orphan receives
20%.
Grandchildren, brothers, sisters, and cousins
are compensated
as
children.
If no other relatives
are left, ascendants share
30 % of annual earnings.
CHAPTER IV
COMPENSATION IN CASE OF INCAPACITY FOR WORK
The amount of compensation in case of incapacity for work
depends on the severity and duration of the injury, and is based
upon an evaluation of the resulting incapacity. The subject will
be treated under the following heads:
(1) The classification of incapacity;
(2) The evaluation of incapacity;
(3) The waiting period ;
(4) The amount of compensation ;
(5) The review of compensation.
§ 1. — The Classification of Incapacity
The incapacity for work caused by industrial accidents varies
both in degree of severity and in duration, and with these two
criteria a classification of incapacity can be established as follows :
(1) Permanent total incapacity ;
(2) Permanent partial incapacity ;
(3) Temporary total incapacity;
(4) Temporary partial incapacity.
Incapacity is said to be permanent when, after the injury has
fully healed, the accident is found to have resulted in a definitive
reduction in earning capacity. The relations between the workman on the one hand and the employer or insurance institution
on the other are thenceforward modified. Generally the medical
treatment ceases and the form and amount of compensation alter.
Permanent incapacity may be either total or partial. It is total
when the workman is considered as being unable to engage regularly
in any remunerative occupation (e.g. if he loses both eyes or both
arms). It is partial when the workman is considered as able to
obtain a wage, diminished to a greater or less extent, either in his
former occupation or in another.
Incapacity is temporary when, in view of the nature of the
injury, there is reason to think that after a longer or shorter period
recovery will be complete, and no definitive reduction in earning
— 255 —
capacity will result. It is in practice a very difficult matter in
many cases to determine whether the incapacity is temporary or
not. Except where severe mutilations, such as the loss of an eye,
an arm or a leg, are concerned, it is often impossible to forecast
the development of the injury, since a period of several years may
elapse before an injury assumes its final condition.
Legislators, desirous of safeguarding the rights of the accident
victim, and convinced moreover of the value of an expeditious
settlement of the liability of the employer or insurance institution,
have provided that, on the expiry of a certain period, the incapacity
shall be considered to have reached its final condition, as having
disappeared altogether, or as having become permanent.
The distinction between total and partial is less important where
temporary rather than permanent incapacity is concerned. In
practice, the injured workman is usually unable, while medical
treatment is going on, to engage in his employment and earn his
wages. Nevertheless, in the case of certain injuries the development of which is slow, there is a possibility that the workman might
undertake light work, since the incapacity might in fact be only
partial.
Three main groups of countries can be distinguished according
to the system of classification of incapacity, which they employ,
namely :
(1) Permanent total, permanent partial, and temporary total;
(2) Permanent total, permanent partial, temporary total and
temporary partial; or
(3) Total and partial.
First group. — In the first, and by far the largest group, three
kinds of incapacity are recognised: permanent total, permanent
partial, and temporary, all temporary incapacity being considered
as total (Argentina, Austria, Bolivia, Bulgaria, Chile, Cuba,
Czechoslovakia, Denmark, Ecuador, Esthonia, France, Germany,
Guatemala, Hungary, Italy, Japan, Latvia, Lithuania, Luxemburg,
Netherlands, Panama, Poland, Quebec, Roumania, Russia, Salvador,
Serb-Croat-Slovene Kingdom, South Africa, Spain, Switzerland,
Uruguay). The distinction between permanent and temporary
incapacity can be established by various methods, and a subclassification of this group of countries can be made according
to the method they adopt.
(a) Under the simplest method a temporary allowance is
replaced by a pension when the injury has healed, no absolute
limit being imposed for the duration of the allowance; only then
— 256 —
are total and partial incapacity differentiated (Bulgaria, Chile,
France, Italy, Japan, Panama, Quebec, Roumania, Russia, Sweden,
Switzerland, Uruguay).
(b) Under another method the allowance is replaced in some
countries by a lump sum and in others by a pension on the expiry
of the period of medical treatment or of a certain time limit,
whichever occurs sooner (Peru, 3 years ; Greece, 2 years, Argentina,
Bolivia, Chile, Cuba, Denmark, Ecuador, Guatemala, Salvador,
South Africa, 1 year; Finland, 120 days; Serb-Croat-Slovene
Kingdom, 10 weeks ; Netherlands, 6 weeks 1 ). In all these countries
except Chile, Cuba, Guatemala, Finland, the Serb-Croat-Slovene
Kingdom and the Netherlands, compensation is paid primarily
in the form of a lump sum.
(c) A third method provides that the allowance for a certain
number of weeks shall be paid by a sickness insurance institution.
If the injury has healed at the end of that time, but incapacity
still subsists, the accident insurance institution becomes responsible
for continuing the payment of compensation; and a permanent
pension adjusted to the degree of incapacity takes the place of the
allowance. But if the injury has not healed at the end of that
time, the allowance is replaced by a provisional pension payable
by the accident insurance institution. The countries in which
this system is in operation are: Austria, Czechoslovakia and
Poland (former Austrian and Russian territories) where the period
during which the sickness insurance institution is responsible for
compensation is four weeks; Denmark, Esthonia, Germany, Latvia,
Luxemburg and Poland (former German territory) where the period
is 13 weeks; and Hungary and the Serb-Croat-Slovene Kingdom,
where the allowance is paid for 10 weeks, though in the latter
country the expenses fall on the sickness insurance institution
for the first four weeks only.
Second group. — There is a group of countries in which a distinction between total and partial is made throughout the duration of
incapacity, so that the possibility that the workman may be able to
earn some income before the completion of medical treatment is
provided for (Belgium,Brazil, Canadian Provinces except Quebec and
Saskatchewan, Finland, India, Greece, Norway, Peru, Portugal
and Sweden).
Third group. — Finally, separate mention must be made of a
special group of countries whose legislation is based on the British
1
If on the expiry of 6 weeks the degree of incapacity cannot yet be finally
fixed, a provisional pension is awarded.
— 257 —
Workmen's Compensation Act of 1906 (Australian Commonwealth
and States, Great Britain, Irish Free State, Newfoundland and
New Zealand). In these countries incapacity is not distinguished
as permanent and temporary, but only as total and partial.
Nevertheless, the legislation of all these countries provides for
the commutation of the allowance for a lump sum at the option
of the employer, after incapacity has lasted six months. This
system results in the consideration of incapacity as being permanent after the expiry of six months, in those cases where
the employer prefers to commute the allowance.
§ 2. — The Evaluation of Incapacity
In order to adjust compensation to economic loss it is necessary
to evaluate the loss. The extent of the loss depends on the degree
to which the workman's potential earning capacity has been
diminished by the injury. In the following paragraphs will be
studied the bases and methods of evaluating incapacity for work.
THE BASES OF EVALUATION
The evaluation of the consequences of accidents may be effected
with the object of determining either physical disability, incapacity
in respect of the workman's habitual occupation, or incapacity
on the general labour market.
The Evaluation of Physical Disability
The degree of disability is measured solely with reference to
the physical ability of a normal man; to each organ or to each
function is assigned a certain value depending on its importance
in the general physical economy of an adult individual. The
value of an organ has no relation to the occupational conditions,
so that the loss of an eye is evaluated at the same figure whether
the person concerned is a watchmaker or farm worker. Evaluation
on a physical basis has been widely used in fixing war pensions,
particularly in Belgium, France, Great Britain and Italy. It is,
however, obvious that physical disability is different from economic
disability and that therefore some other basis is needed for evaluating industrial accident injuries.
The Evaluation of Occupational Incapacity
Occupational incapacity in its strict sense is evaluated solely
with reference to the consequences of the accident on the workman
17
— 258 —
in the exercise of his habitual occupation. The same injuries may
produce incapacity widely different in degree according to the
occupation; thus, the loss of the left arm, which forces a fitter to
change his trade, is to a clerical worker insignificant from an
occupational standpoint.
The workman's habitual occupation certainly constitutes an
important factor in the determination of the degree of incapacity,
especially where old men are concerned, but it cannot be accepted
as the only basis of evaluation because legislators have taken the
view that it is the duty of an accident victim to turn his remaining
working capacity to the best account, and, if necessary, change his
occupation.
The Evaluation of Incapacity on the General Labour Market
On the basis of incapacity on the general labour market the
results of the accident are measured, not by reference to a particular occupation, but with regard to the reasonable possibilities
of work which the general labour market may offer the workman
in view of the nature and severity of his injury, his trade experience, his age, and all other factors which might affect his recovery
of a place in industry.
This system, in which the dominant motive is to employ fully
all the workman's productive ability, has been adopted in all
workmen's compensation laws.
THE METHODS OF EVALUATION
The evaluation of earning capacity on the general labour market
can be effected by two methods.
By the first method, which is of an empirical character, the
degree of incapacity is measured by the actual difference between
earnings before, and earnings after the accident.
By the second method incapacity is presumed to exist in a certain
degree corresponding to the nature and severity of injury.
Evaluation according to the Reduction in Earnings
In order to measure the reduction in earnings it is of course
necessary to determine both earnings before, and earnings after
the accident.
The computation of earnings before the accident does not present any serious difficulty; in the great majority of cases it is possible to obtain information as to the actual remuneration of the
workman during the basic period prescribed by the law.
— 259 —
The determination of earnings after the accident is,- on the
contrary, in the majority of cases very difficult, if not impossible.
Sometimes the workman is earning nothing at the time when the
law provides that the degree of incapacity shall be settled, either
because he has not yet returned to work or because he has given'
up working for wages in order to engage in business on his own
account. Sometimes, again, the workman's actual earnings do n'otf
properly represent his actual ability to earn. He may, by mischance,
or lack of initiative, or on account of the employment situation,,
not yet have succeeded in finding the work in which he will obtain:
the highest wages;, he may further not yet have fully re-adapted
himself physically so as to render his maximum efficiency, as is
very frequently the case when incapacity is deemed by the law
to be permanent before the medical development of the injury
is completed.
It is only possible to determine the earnings which really represent the permanent earning capacity of the workman after the
accident if the final settlement of the claim does not take place
until the medical development of the injury and the functional
and vocational re-adaptation have been completed, which, in
practice, will require for many cases a space of several years.
A desire to settle expeditiously the financial liability of employers
or insurance institutions has led to a search being made for another
method of measuring incapacity, under which actual earnings
after the accident, while remaining the most important factor in
the assessment, are not the sole criterion.
Evaluation according to the Nature and Severity of the Injury
Under this method, the degree of incapacity is no longer measured
according to the reduction in earnings, but estimated according
to the nature and severity of the injury. Not the actual reduction in earnings is here in question, but the hypothetical
reduction which might be considered to be the normal result of
the injury.
The evaluation of this probable incapacity requires a knowledge
of the occupations which are compatible with each kind of injury,
and of the productive capacity of the injured workman in each
of these occupations. The process of evaluation implying, as it
does, in each case a careful investigation of the physical abilities
and the principal movements required in the exercise of each
trade, renders the task of the judge a very difficult one.
In many countries it has been attempted to facilitate evaluation
— 260.—
by constructing a schedule consisting of a list of injuries in which,
opposite each injury, is shown the degree of incapacity normally
resulting from it.
The perfect schedule would resemble a dictionary; it would
cover all occupations and all injuries, and give the degree of
incapacity corresponding to each injury in the exercise of each
occupation; it would, moreover, take into account the age and
special skill of the individual. Its construction would be a work
of extraordinary amplitude and detail, in view of the increasing
specialisation of modern industry. At the present time only one
schedule of this nature, much simplified indeed, is officially utilised ;
it is that of the State of California1. This schedule brings into
relation the following elements: the nature and severity of the
injury (267 sorts of injury), the occupation (52 groups of occupations), and age (31 age-categories for persons aged from 15
to 75), and provides for more than twelve million possible combinations.
The other schedules in use, especially in Europe, are of a much
simpler and less developed character. They contain two columns,
the first of which is a list of injuries, while the second shows the
degree of incapacity, expressed as a percentage of total incapacity,
which normally results from each injury. The percentages represent average values applicable to all accident victims suffering
from the same injury, whatever their age, general health, former
occupation, and aptitude for taking up a fresh occupation. The
degree of incapacity, as thus fixed, is in reality to a large extent
the degree of physical incapacity.
The rigid application of such schedules entails such injustice
that generally they are used as guides, having, not an imperative,
but an indicative value, so that the judges or experts concerned
are at liberty either to disregard the figures, or else to vary their
assessment within specific limits for each injury, being thus able
to allow for age, former occupation, aptitude for new occupation,
and all other elements susceptible of difference in individuals.
The variations from the average percentages of incapacity are,
however, generally small, and the experts usually tend to follow
closely the schedule, even where it is purely a guide, so that in
practice physical incapacity remains the principal factor in the
evaluation of economic loss.
1
Schedule -for Rating Permanent Disabilities under the Workmen's
sation Act, 1914. California State Printing Office, San Francisco.
Compen-
— 261 —
CLASSIFICATION OF COUNTRIES ACCORDING TO METHOD
OF EVALUATION ADOPTED
It is hard to discover what is the actual practice followed in
certain countries in evaluating incapacity. The vagueness of the
laws is perhaps intentional, the purpose being to permit elasticity
of administration and enable the methods to be developed in
accordance with experience. It is quite clear, however, that in
principle the degree of incapacity is assessed with reference to
probable earning capacity in the occupations in which the workman
can reasonably be expected to find employment. The majority
of countries can be classified into three groups:
(1) For the evaluation of incapacity in the case of certain
specified injuries, an official schedule, having imperative force, is
used, which shows for each injury the appropriate degree of incapacity; the evaluation of incapacity due to other injuries is left to the
discretion of the judge or other authority (Argentina, Brazil, Bulgaria, Esthonia, India, Italy, Latvia, Lithuania, New Zealand, Peru,
Queensland, South Australia, Spain, Victoria, Western Australia).
(2) A schedule showing the degree of incapacity corresponding
to each of a certain number of specified injuries is used as a guide
in practice by the administrative or judicial authorities, but it is
not legally recognised. In theory the degree of incapacity is in
all cases decided by the judge or other authority in the exercise
of his discretion. Such schedules, having an indicative but not
imperative value, are believed to be in use in many countries:
among them are Austria, Chile, Czechoslovakia, France and Germany.
(3) The judge or other authority decides the degree of incapacity
according to the circumstances of each individual case. No
schedule is used. The law affords no guidance as to evaluation
except that it must be in accordance with the reduction in earning
capacity (Australian Commonwealth, Great Britain, Irish Free
State, Newfoundland, New South Wales, South Africa, Tasmania).
The laws of some countries specify what circumstances in particular must be taken into account in assessing the degree of incapacity. For example, in Chile, Denmark and Finland regard must
be had to any special skill required in the victim's habitual occupation before the accident. In Finland, again, the influence of the
victim's physical and mental development, age and sex must be
taken into consideration.
It may be of interest to give the percentages of incapacity
assigned to various injuries in the schedules embodied in the legislation, or utilised in the administration, of certain countries:
— 262 —
Percentage of incapacity
Nature of Injury
Argentina
Loss of b o t h ey«s, b o t h
limbs, b o t h feet, h a n d
a n d foot, m e n t a l powers paralysis
Loss of right a r m
» » left
»
» » right h a n d
» » left
»
» » leg
» » foot
» » sight of one eye
Total deafness
Deafness of one ear
Loss of right t h u m b
» » left
»
» » right forefinger
» » left
»
» » little finger
100
60
60
60
60
60
50
42
42
12
30
30
24
18
13
Brazil
France
—
100
70-75
60-70
60-65
55-60
60-65
25-50
25-33
40-45
15-20
20-25
18-20
15
12
7-8
50-60'
50-60
45-60
40-60
55-60
45-60
60
—
—
20-4020-40
15-40
10-40
5-20
Italy
— •
85
80
70
70
60-75
50
35
—
20
30
25
20
15
12
Victoria
100
80
75
70
65
75
60
30
50
10
30
25
20
15
12
§ 3. — The Waiting Period
The great majority of laws (about three-quarters) specify that
incapacity lasting less than a certain small number of days (between 3 and 7) does not entitle to compensation. The very provision of a waiting period as well as its plan and length are the
result of compromise. On the one hand the workman's right to
compensation is essentially the same whether his incapacity lasts
1, 10 or 100 days; on the other hand there is the inexpediency of
compensating for incapacity of A'ery brief duration.
One object of such provision is to avoid putting administrative.
machinery into motion on account of trifling injuries. If no
waiting period were provided the way would be open for a large
volume of small claims which would place the employer or insurance
institution in the difficult dilemma of either making an investigation whose cost would be disproportionately great in relation to
the amount of compensation concerned or paying without question,
which might involve much unjustifiable expense.
A second object of the waiting period is to discourage malingering by making the workman bear the loss of wages during the first
few days of incapacity. Thus, if incapacity lasts 12 days and no
compensation is paid for the first 4 but full compensation for the
last 8, then the average rate of compensation is 66 2 / 3 per cent.
of the earnings. It follows that the rate of compensation for
temporary incapacity cannot be considered without reference to
— 263 —
the length of the uncompensated waiting period, since its value
increases in proportion to the shortness of the waiting period and
the length of the period of incapacity.
Waiting periods can be arranged on three plans :
(1) Incapacity lasting less than n days is in no case compensated ;
if it lasts n days it is compensated from the nth day;
(2) Incapacity lasting less than n days is not compensated;
if it lasts n days it is compensated from the nth day; if it lasts
n plus m days it is compensated from the first day;
(3) Incapacity lasting less than n days is not compensated; if
it lasts n days it is compensated from the first day.
Examples of each of the three plans are to be found in the laws
of the different countries. All three plans achieve the purpose of
avoiding handling of claims for trifling injuries. With regard to
malingering, however, it is difficult to estimate their comparative
success. It is clear that under the second and third plans there
is an inducement to the workman to prolong his incapacity to
n plus m days and n days respectively. The substitution of the
second for the first plan in France and Great Britain in 1905 and
1906 respectively has been followed by an increase in the proportion
of accidents lasting n plus m days or longer.* The first plan does
not suffer from the same defect but it presents the disadvantage
of throwing on the workman the whole burden of the wage loss
for the duration of the waiting period, however serious the injury
may ultimately prove to be; but this defect can be mitigated by
making the waiting period very short. It may be observed that
one of the most recent workmen's compensation laws, the 1923
Act of Great Britain, provides that no compensation is payable
for the first three days unless the incapacity lasts four weeks.
The following tables corresponding to the three plans described
above indicate the practice of the various countries in regard to the
waiting period ; a fourth table contains a list of the countries where
no waiting period is imposed.
1. Incapacity lasting less than n days is in no case compensated; if it
lasts n days\it is compensated from the nth day.
Country
C a n a d a : Quebec
Denmark
Finland
Germany
India
Uucnnipensatcd 1
period (no
dating back) |
7 days
3-7 » l
2 »
3 »
10 »
Country
Italy
(agriculture)
Luxemburg
Norway
(industry)
Switzerland
Uncompensated
period (no
dating back)
10 d a y s
2 »
3 »2
2 »
i The sickness insurance funds have the option of Axing the waiting period between
the2 limits of 3 and 7 days.
If workman is not covered by sickness insurance Acts, waiting period is 10 days.
— 264 —
2.
Incapacity lasting less than n days is not compensated; if it lasts n
days it is compensated from the nth day ; if it lasts n plus m days
it is compensated from the first day.
Uncompensated
period
Country
Australia
Commonwealth (seamen)
Canada
Alberta
France
Great Britain
Greece
Irish Free State
Newfoundland
Roumania
Uruguay
3.
Compensation begins
first day
if incapacity lasts
7 days
14 days
3
4
3
4
7
7
3
7
10
11
28
11
14
14
8
31
»
»
»
»
»
»
»>
o
•
»
»
»
»
»
»
»
Incapacity lasting less than n days is not compensated ; if it lasts n
days it is compensated from the first day.
Country
Argentina
Australia
New South Wales
Queensland
South Australia
Tasmania
Victoria
Western Australia
Austria
Belgium
Bolivia
Canada
British Columbia
Manitoba
New Brunswick
Nova Scotia
Ontario
Saskatchewan
Compensation
begins first
day if incapacity lasts
7 days
7
3
3
3
7
3
4
8
7
»
»
»
»
»
»
»
»
»
4
4
7
l
»
»
7
i,
7
7
»
»
Country
Cuba
Czechoslovakia
Guatemala
Hungary
Italy (industry)
Lithuania
Netherlands
New Zealand
Serb-Croat-Slovene
Kingdom
South Africa
Sweden
Compensation
begins first
day if incapacity lasts
14 days
4 »1
7
4
6
4
3
3
»
».
»
»
»
»
4
7
4
»
»
»>
» Under the new Workers' Insurance Act, 1924 (not yet in force), incapacity lasting less
than 4 days is not compensated; if it lasts 4 days it is compensated from the fourth day;
and if it lasts 15 days it Is compensated from the third day.
— 265 —
4.
Incapacity is always compensated from the first day
Australia :: Commonwealth (workmen)
Brazil
Bulgaria
Chile
Ecuador
Esthonia
Japan
Latvia
Panama
Peru
Portugal
Russia
Salvador
Spain
§ 4. — The Amount of Compensation
The amount of compensation varies with the nature and degree
of the incapacity for work; it will be examined separately in the
following cases: permanent total incapacity, permanent partial
incapacity, temporary incapacity, and the special case of the very
seriously injured who require the constant attendance of another
person.
THE
AMOUNT OF COMPENSATION FOR PERMANENT
TOTAL
INCAPACITY
In the case of permanent total incapacity the economic loss is,
as we have seen, equal to the total of the wages which the injured
workman would have received in the course of his working life
if the accident had not occurred.
Mention has already been made of the impossibility of accurately
evaluating this loss, of the consequent necessity in practice of
assuming t h a t the future will resemble the past and of calculating
compensation on the basis of annual earnings.
The amount of compensation is a fraction of the basic wage
or a multiple thereof, according as the compensation is paid as a
pension or a lump sum. It is to be observed, in judging the practical
importance of these percentages and multiples, t h a t their operation in the calculation of compensation is very often limited by the
existence of maximum and minimum limits to the basic wage.
The Amount of the Pensions
The pension is almost always lower than the basic wage, as is
shown in the following table.
— 266 —
Country
Australia
(except New South Wales
and Victoria)
New South Wales and
Victoria
Austria
Belgium
Bulgaria
•Canada
Alberta
New Brunswick
Nova Scotia
British Columbia
Manitoba
Ontario
Quebec
Chile
Cuba
Czechoslovakia
Esthonia
Finland
.France
Percentage
50
66%
66%
50
50-80
55
55
55
62%
66%
66%
50
50
66%
66%
66%
66%
66%
Country
Germany
Great Britain
Guatemala
Hungary
Irish Free State
Latvia
Lithuania
Luxemburg
Netherlands
Newfoundland
New Zealand
Norway (industry)
Peru
Poland
Portugal
Roumania
Russia
Serb-Croat-Slovene
Kingdom
Sweden
Switzerland
Uruguay
Percentage
66%
50-75
60
66%
50
66%
66%
66%
70
50
58
60
33
66%
66%
66%
66%
100
66%
70
66%
An examination of the percentages given in the above table
shows that the pension is in most countries between one-half and
two-thirds of earnings, that the proportion most frequently adopted
is two-thirds, and that in one country only, the Serb-Croat-Slovene
Kingdom, is the compensation equal to the economic loss. The
percentage only operates fully when the maximum limit of the
iasic wage does not come into play.
The argument used to justify the difference between the pension
and the earnings is the same whether the case is one of incapacity
or of death, namely the principle of occupational risk and the
payment of compensation on a fixed scale which is the consequence
of that principle: the employer who bears the cost of accidents
due to the workman's fault (about 20 per cent, of the total according to the rather unsatisfactory statistics available) cannot be
required to pay compensation in full.
It is asserted moreover that the fact of leaving a portion of the
Joss to be borne by the workman will stimulate him to be more
«areful and to comply with safety regulations.
This argument does not appear to have much weight, for one
can hardly admit that workmen bear in mind consciously or subconsciously during their work how much compensation they will
recense if injured, and that their degree of carefulness is inversely
proportional to the amount of compensation. On the contrary,
it would be more reasonable to think the great majority of accidents
— 267 —
ascribed to the workman's negligence is the result of ignorance,
familiarity with dangerous processes, and the desire for rapid output.
The Amount
of the Lump
Sums
Lump sums are fixed without reference to the age of the victim,
and vary considerably from country to country, as is indicated
in the following table :
Years' earnings
Argentina
Bolivia
Brazil
Canada (Saskatchewan)
Denmark .
Ecuador
Greece
1
2
3
3'
2
3
3
10
2
6
Years earnings
India
Italy (industry)
Japan
Panama
Salvador
South Africa
Spain
3%
6
%*
1% 3
2
3
2
1,000 days'earnings
More than 150 days'earnings.
Or perhaps 2'/« : the text of the law is not clear.
The lump sum most frequently adopted is thus that which is
equal to three years' earnings. It corresponds in the case of a
workman of average age, e.g. 35 years, to a pension of 20 per cent.
of the basic wage, far lower than the 66 2 / 3 per cent, which is the
rate most frequently adopted in countries where pensions are
paid. It is therefore manifest t h a t in general lump sum compensation is less favourable than pension compensation, except where
elderly workmen are concerned and the lump sum exceeds six years'
earnings.
T H E AMOUNT OF COMPENSATION FOR PERMANENT PARTIAL
INCAPACITY
In case of permanent partial incapacity the economic loss consists
of the amount by which earnings have been reduced in consequence
of the accident. This amount could be determined by comparing
actual earnings before and after the accident, but in fact the rule
in almost all laws is to calculate it according to the degree of
incapacity for work, which is estimated with or without the aid
of a schedule.
The compensation is either a fraction or a multiple of the reduction in the basic wage, according as the payment is made in the
form of pension or a lump sum.
The Amount of the Pensions
The amount of the pension in case of permanent partial incapacity
is the same fraction of the wage-loss as in case of permanent total
— 268 —
incapacity. Hence in general it varies from one-half to two-thirds
of the reduction in earnings, and the most usual fraction is twothirds (see table on page 266).
The fact that compensation is partial and not integral is a
consequence of the theory of occupational risk, as in the case of
permanent total incapacity. Moreover, it is thought that if the
injured workman is left to bear a portion of the loss he is stimulated
to make greater efforts to increase his earnings either by re-adapting himself to his old trade or by learning a new one.
Under this method of calculating compensation the injured
workman obtains a total income (earnings plus pension) which is
lower in proportion as the incapacity is more serious, as is shown
in the table given below. The assumption has there been made
that the compensation is equal to 66 2/3 per cent, of the reduction
in earnings and that actual earnings after the accident correspond
with the estimated degree of incapacity. The total income is
expressed as a percentage of earnings before the accident.
Degree
of Incapacity
Pension
Post accident
earnings
Income
100
80
60
40
20
66%
531/3
40
26 V,
13 y 3
20
40
60
80
66%
731/3
80
862/3
931/3
Thus, the total income of the injured workman is 93!/3 per cent.
of earnings before the accident for incapacity of 20 per cent., and
73V3 per cent, of earnings for incapacity of 80 per cent.
If the fraction of the reduction in earnings used in the calculation of compensation for partial incapacity is less than the fraction.
of earnings used in the calculation of compensation for total incapacity, it is clear that a sudden difference in the total income
occurs at the point where serious partial incapacity becomes
total. Such is the case in Cuba, France, Portugal, and Uruguay,
where compensation for permanent total incapacity is 662/3 per
cent, of the basic wage, while for permanent partial incapacity it
is only 50 per cent, of the reduction in the wage,
The disproportion between the rate of compensation and the
need to which it should correspond is increased by the fact that
in general the workman has greater difficulty in obtaining regular
employment (even at a low wage) according as his injury is more
severe.
— 269 —
The Amount of the Lump
Sums
The lump sum is calculated by multiplying the amount by which
earnings have been reduced by the same factor as is used in case
of permanent total incapacity. This factor varies from one-half
to ten, and the figure most frequently adopted is three (see table
on page 267).
Lump sums, as they are fixed without regard to the age of the
victim, are, as has been pointed out in dealing with permanent
total incapacity, less favourable to the victim than pensions,
except where elderly workmen are concerned and the factor is higher
than six.
T H E AMOUNT OF COMPENSATION IN CASE OF TEMPORARY
INCAPACITY
In case of temporary incapacity the economic loss entailed is
usually the complete loss of wages. As the incapacity is of relatively short duration, it is reasonable to expect the workman would
not change his occupation and that his rate of wages would not
have altered if the accident had not occurred. Thus, earnings at
the time of the accident accurately represent the economic loss.
Hence in many countries compensation is a fraction of the daily
earnings of the victim, calculated according to earnings on the
day of the accident as in Brazil, according to earnings during the
month before the accident as in France.
The principle of occupational risk, which imposes on the employer
the cost of compensating those accidents for which he is not directly
responsible, and the award of compensation on a fixed scale, which
results from t h a t principle, afford the explanation of the fact t h a t
compensation is less than the wage-loss. The difference between
compensation and wage-loss, which was noted in the case of
permanent incapacity is even more marked in case of temporary
incapacity.
The percentages of earnings awarded in the various countries
for temporary (total) incapacity are as follows:
Country
Percentage
Argentina
Australia, (except New
South Wales and Victoria)
New South Wales and
Victoria
Austria
Belgium
Bolivia
Brazil
Bulgaria
Country
Canada:
Alberta, New Bruns50
wick. Nova Scotia
British Columbia
66%
Manitoba, Ontario
66%-80
Quebec
50
Chile
50
Cuba
50
Chechoslovakia
50-80
Percentage
50
55
62%
66%
50
50
50
66%
— 270 —
Country
Percentage
Denmark
66%
Ecuador
50
50-66%
Esthonia
Finland
66%
France
50
Germany (1-4 weeks)
50
(5-13 „
66%
"Great Britain
50-75
Greece
50
Guatemala
60
Hungary50
India
50
Irish Free State
50
Italy (industry)
50
Japan (Factory Act)
(1-4 months)
more than 50
(after 4 months)
331/3
Latvia
66%-100
Lithuania
50
Luxemburg (1-4 weeks)
50
Country
Percentage
Luxemburg (5-13 weeks)
66%
Netherlands
70
Newfoundland
50
New Zealand
58
Norway (industry)
60
Panama
50
Peru
33
Poland
60
Portugal
66%
Roumania
35-50
Russia
100
Salvador
50
Serb-Croat-Slovene
Kingdom
66%
South Africa
50
Spain
75
Sweden (first 35 days)
about 6
thereafter
66%
Switzerland
80
Uruguay
50
Whereas in case of permanent incapacity the usual rate of pension
was 66 2/s per cent, of earnings, the scale of compensation for
temporary incapacity is generally 50 per cent. The following
practical considerations are commonly adduced to justify this
difference: the necessity of avoiding malingering by making the
workman bear a larger share of the loss; and the possibility t h a t
the workman may be able to eke out the compensation with his
savings during a short period.
A certain number of countries, as we have already seen, distinguish between total and partial temporary incapacity; with
two exceptions, all of these countries award as compensation for
partial incapacity a percentage of the reduction in earning capacity
which is the same as the percentage of the basic wage awarded
for total incapacity (Belgium, Brazil, Canadian provinces except
Quebec and Saskatchewan, Finland, Greece, Norway (industry)). The exceptions are Peru and Portugal which award for
partial incapacity 50 per cent, of the reduction in earning capacity
and for total incapacity 33 per cent, and 66 2 /3 per cent, of the
basic wage respectively.
THE
AMOUNT
OF COMPENSATION
FOR VERY
SERIOUSLY
INJURED WORKMEN REQUIRING THE CONSTANT ATTENDANCE
OF ANOTHER
PERSON
In certain cases of very severe incapacity the economic loss is
greater than the earnings of the victim, and the need greater after
than before the accident. This is the case of a workman who is
— 271 —
so seriously injured that he is unable to perform the essential:
actions of life without assistance, and consequently requires
constant attendance.
The pension is usually the sole means of livelihood, not only of
the workman but of his attendant, and thus the accident may
sometimes result in the loss of the earnings of two persons. A
special rate of compensation for this particular case appears therefore to be justified not only on juridical and economic grounds,.
but by considerations of elementary humanity.
At the present time, however, a special rate of compensation
for very seriously injured workmen is awarded only in the following
countries: Austria, Bulgaria, Czechoslovakia, Esthonia, Germany,
Hungary, Latvia, Luxemburg, Netherlands, Poland, Roumania,
Russia, Serb-Croat-Slovene Kingdom, Sweden and Switzerland.
Usually the class of victims who receive special compensation
is given a very broad definition in the formulae employed in the
laws. These formulae are as follows:
Austria, Czechoslovakia, Germany, Luxemburg, Poland, Sweden
An injured workman who is so helpless that he requires th&
attendance and care of another person.
Bulgaria and Russia
An injured workman who is totally incapacitated for work and
requires the attendance of another person.
Esthonia and Latvia
An injured workman who suffers from total helplessness requiring the care of another person, from lunacy, from completeblindness, or from the loss of both hands or both legs.
Netherlands
An injured workman who is so helpless that he requires
regular attendance and care, and whose pension is insufficient
for his maintenance.
Serb-Croat-Slovene Kingdom, Hungary
An injured workman who is totally incapacitated for work and
requires regular attendance and care.
— 272 —
Roumania
An injured workman who requires the permanent care of another
person.
Switzerland
An injured workman who requires the presence of a nurse
and other special care.
The most important element in these formulae, which exhibit
a considerable resemblance to one another, is certainly the necessity of the constant presence of another person. Nevertheless,
appreciable differences must result in practice from the manner
in which the legal text is interpreted by the Courts, the insurance
institutions and the authorities which evaluate the degree of
incapacity. For example, it is possible that the condition of total
incapacity for work, prescribed in Bulgaria, Esthonia, Hungary,
Latvia, Russia, and the Serb-Croat-Slovene Kingdom, does not
always coincide with the necessity of the attendance of another
person, and that thus some victims would not be awarded the
higher rate of compensation to which they would probably be
entitled in other countries.
The award of a special rate of compensation to the very seriously
injured may be either compulsory or optional. It is compulsory
in Austria, Bulgaria, Czechoslovakia, Esthonia, Germany, Hungary,
Latvia, Luxemburg, the Netherlands, Poland and the Serb-CroatSlovene Kingdom. It is optional in Roumania, Sweden and
Switzerland.
The amount of compensation may be either uniform in all cases
and precisely fixed by the law, or it may vary according to the
requirements of each case individually, only the maximum being
fixed by the law.
The compensation is uniform and equal to the victim's wages
in Austria, Czechoslovakia, Esthonia, Hungary, Latvia, Luxemburg, and Poland (former Austrian and Russian territories), and
Russia. The additional pension is therefore equal to half the
pension for total incapacity. In Bulgaria the rate of pension varies
with the wage class in which the injured workman was placed for
the purpose of insurance:
Daily wages
Up to 15 leva
16 to 30 »
31 to 45 »
45 to 60 »
61 and over
Annual pension
3,600 leva
4,800 »
6,000 »
7,500 »
5.000 «
— 273 —
The maximum limit only of the total compensation is prescribed
in the laws of the other countries : it is equal to 100 per cent, of
wages in Germany, the Netherlands, Poland (former German
territory), Roumania, Sweden and Switzerland, and 1331/a per
cent, of wages in the Serb-Croat-Slovene Kingdom (in this last
country compensation for total incapacity is equal to 100 per
cent, of the basic wage). The administrative or judicial authorities who are entrusted with the evaluation of incapacity may
graduate the additional compensation (as long as the maximum
is not exceeded) so as to allow for the variation in the cost of
attendance, for earning capacity in those rare cases in which it
subsists, and especially for the character (e.g. constant or intermittent) of the assistance which has to be rendered.
§ 5. — The Review of Compensation
A provision for the review of compensation is to be found in the
majority of laws, and especially in those which adopt the pension
form of payment: its object is to adjust the rate of compensation
to changes in the circumstances of the injured. During temporary
incapacity the need for adjustment does not arise, since generally
there is no question of the degree of temporary incapacity. It is
either total or it does not exist. It is then to cases of permanent
incapacity that the provision for review applies. The term
" permanent " as applied to incapacity must not be taken in its
strictest sense: "quasi-permanent" would be more exact.
The ordinary grounds which entitle a workman, employer, or
insurance institution to demand a review are that some essential
change has taken place in the conditions which determine the
decision fixing the amount of compensation, for example the
physical consequences of the accident may turn out more or less
serious than was supposed, or the victim may, subsequently to
the award, die from a cause traceable to the accident. Especially
where the compensation is assessed in accordance with actual
earning capacity and not upon a statutory schedule of injuries
and corresponding degrees of incapacity, the rate of pension may
be varied up or down to take account of the skill acquired by the
workman or unexpected difficulty in obtaining employment.
To avoid vexatious proceedings and to afford the workman
security in the receipt of his pension a number of laws specify
that review shall cease to be possible after the lapse of a certain
18
— 274 —
number of years since the date when the pension was fixed (Belgium 3 years; Brazil 2 years; Quebec 4 years; Esthonia 3 years;
France 3 years; Latvia 2 years; Lithuania 3 years), or the date
of the accident (Chile 2 years; Italy 2 years; Peru 3 years).
Moreover several laws provide that a demand for review will only
be entertained once a year (Esthonia, Latvia, Uruguay) or once
every three years (Bulgaria). In Germany, after two-years, review
can only take place once a year.
Though many countries have adopted temporary measures to
meet the situation created by the post-war rise in prices, Great
Britain, it is believed, is unique in incorporating in its permanent
legislation provision for varying the rate of compensation in accordance with changes in the level of wages since the date of the award.
In this country, by a recent amendment of the law, a weekly
payment is to be reviewed at the request of employer or workman
if the rate of wages in the workman's pre-accident occupation falls or
rises by more than 20 per cent, during the twelve months preceding
the review, and is to be correspondingly decreased or increased.
In a number of countries the device of review is employed to
relieve hardship which apprentices would suffer if compensation
for permanent incapacity were to remain based on their earnings
at the time of the accident. Thus in the case of persons injured
when under 21 compensation may be increased after the lapse of
6 or 12 months from the date of the accident to the amount which
they would be entitled to at the date of review if they were then
adults earning the wages they would probably be receiving if they
had not been injured (Australian Commonwealth and States
except South Australia, Great Britain, Manitoba, Newfoundland,
Nova Scotia, Ontario). A similar procedure is followed in Switzerland. In three Baltic countries the pensions of persons under
15 and 17 are successively raised when the ages of 15 and
17 are reached to the amount which would be awarded to unskilled
workmen of these ages (Esthonia, Latvia, Lithuania). Provision
for raising the rate of compensation of apprentices is also made
by the laws of India and Luxemburg.
In countries where a lump sum is awarded for permanent
incapacity and paid direct to the beneficiary, the review of compensation is only practicable in cases of aggravation of the results
of the accident ; that is to say it is possible to increase a lump sum
but not to reduce it, since the workman cannot be expected to
repay the sum which he may already have spent. A provision
for review is rendered less necessary because in almost all these
— 275 —
countries the sum awarded for permanent total incapacity is equal
to or greater than that awarded for death, so that if the accident
eventually has fatal results no additional compensation would be
payable. In fact Brazil is the only one of these countries where
review is provided for, and there compensation for death is greater
than that for permanent total incapacity.
In Italy a lump sum payable for permanent incapacity of 50 per
cent, or more is retained by the National Social Insurance Fund
which pays a monthly allowance to the workman. At any time
before the expiry of two years the lump sum may be reviewed and
if the workman has died or if his physical condition has altered, the
sum is varied to correspond with the new circumstances. On the
expiry of two years the lump sum, as modified at a review and after
deduction of the amounts paid in monthly allowances, is invested
in the purchase of an annuity.
— 276 —
COMPARATIVE
TABLE
SHOWING
PROVISIONS
RELATING
(Exclusive
COUNTRY
Waiting
period
Evaluation
of i n c a p a c i t y
Determination
of permanent
incapacity
New South
Wales
Queensland
Minimum
Specified injuries : schedule of
corresponding
degrees of incapacity. Other inj u r i e s : evaluation
according t o reduction in earning capacity.
Incapacity re(6) 6,000 pesos.
(6 A d u l t s : no
maining when inprovision.
j u r y has healed,
Apprentices:
b u t not
later
See Basic Wage.
t h a n 1 year after
accident, is deem- Less a n y p a y m e n t s made for
ed p e r m a n e n t .
t e m p o r a r y incapacity.
All injuries: evaluation according t o earnings
in some suitable
occupation after
accident.
(o) 40s. a week
but not
more
t h a n £750 in all;
10s. for persons
under 21 earning
less t h a n 20s. a
week.
I n c a p a c i t y lasting 8 d a y s is compensated
from
eighth d a y ; if it
lasts 14 d a y s it is
compensated
from first d a y .
Ditto
(a) 30s. a week;
10s. for persons
under 21 earning
less t h a n 20s. a
week.
I n c a p a c i t y lasting 7 days is compensated
from
first d a y .
Ditto
(o) 60s. a week,
but not more
t h a n £750 in all;
15s. for persons
under 21 earning
less t h a n 20s. a
week.
I n c a p a c i t y lasting 7 days is
compensated
from first d a y .
AUSTRALIA
Commonwealth
(Workmen)
(Seamen)
of
M a x i m u m and minimum
(a) pension or (6) l u m p sum
for
p e r m a n e n t total incapacity
Maximum
ARGENTINA
TO
I n c a p a c i t y last
Specified injuring 3 d a y s is com- ies: schedule of
pensated
from c o r r e s p o n d i n g
first d a y .
a m o u n t s of compensation. Other
injuries: no provision.
(o) Specified injuries: £750.
(a) Other injuries: 70s. a week
including family
allowance, b u t
not more t h a n
£750 in all.
(a) 20s. a week
for adult workman ; 40s. for
w o r k m a n with
dependent wife,
parents, brother
or sister.
— 277 —
COMPENSATION
IN CASE OF INCAPACITY FOR WORK
medical aid)
Amount of compensation
Permanent incapacity
Total:
Function of
basic wage
represented by
(a) pension, or
(6) lump sum
Partial :
Function of
reduction in
earnings
represented by
(o) pension, or
(6) lump sum
Temporary incapacity
Total :
Percentage of
basic wage
represented by
allowance
Partial :
Percentage of
reduction in
earnings
represented by
allowance
(a) Commutation
of pension for
lump sum, or
(6) Disposal
of lump sum
Review of
compensation
if change occurs
in conditions
which
determined
award
(¡>) 1,000 times (6) 1,000 times
50% of daily All temporary
daily earnings.
reduction in dai- earnings.
incapacity
is
ly earnings.
deemed total.
(f>) Lump sum
is invested in
purchase of annuity.
(a) 50% of week- (a) Not more
ly e a r n i n g s ; than 100% of
100% for persons r e d u c t i o n in
under 21 earn- weekly earnings.
ing less than 20s.
a week.
No distinction between permanent
and temporary incapacity.
(a) Commutation at option of
employer after 6
months for lump
sum sufficient to
purchase annuity of 75 % of pension. Lump sum
applied as judge
d i r e c t s . Commutation by agreement at any
time for lump
sum paid direct
to workman.
Review at any
time.
Persons
under 21 : Compensation may be
increased at review more than
12 months after
accident to 50 %
of probable earnings at date of
review if accident had not occurred.
Ditto
Ditto
Ditto
Ditto
Ditto
Ditto
Ditto
Dit to
(i>) Lump sum
paid for specified
injury is applied
as judge directs.
Ditto
(o) 6 6 % % of
weekly earnings;
100% for persons under 21
earning less than
20s. a week.
(6) Specified in. uries: compensation is fixed by statute for each
injury.
(a) 50% of week- (a) Not more
ly earnings. Up than pension for
t o 100 % for total incapacity.
workman earning less than 80s.
a week.
Family allowanc,e of 5s. a week
for each child unt !er 14; maximum
allowance of 30s.
Review at any
time.
Persons
under 21 : compensation may
be increased at
review more than
12 months after
accident
to
66 % % of probable earnings at
date of review if
accident had not
occurred.
Review at any
time.
Persons
under 21 : compensation may
be increased at
(a) Commuta- review more than
tion by agree- 12 months after
ment at any time accident to 50 %
for lump sum of probable earnapplied as judge ings at date of
directs.
review if accident
had not occurred.
— 278 —
COMPARATIVE TABLE SHOWING PROVISIONS RELATING TO
(Exclusive
COUNTRY
Waiting
period
Evaluation
of incapacity
Determination
of permanent
incapacity
of
Maximum and minimum
(a) pension, or (6) lump sum
for
permanent total incapacity
Maximum
Minimum
(a) 30s. a week
for single workmen; 40s. for
married workmen or widowers
with children.
AUSTRALIA
(continued)
South Australia
Ditto
Specified injuries: schedule of
corresponding
amounts of compensation. Other
injuries: evaluation according to
earnings in some
"suitable occupation after accident.
(o) £5 a week including family
allowance, but
not more than
£700 in all.
Tasmania
Ditto
All injuries :
evaluation according to earnings in some suitable occupation
after accident.
(a) 50s. a week, (a) 20s. a week
but not more for adult workthan £500 in all: men.
20s. for persons
under 21 earning
less than 20s. a
week.
Victoria
Western
Australia
Incapacity last- Specified injuring 7 days is ies : schedule of
c o m p e n s a t e d corresponding
from first day.
degrees of incapacity. Other injuries : evaluation
according
to
earnings in some
suitable occupation after accident.
Incapacity lasting 3 days is
compensated
from first day.
Ditto
(a) 40s. a week,
but not more
than £600 in all;
15s. for persons
under 2i earning
less than 20 s. a
week.
Ditto
(o) 30s. a week
(a) 70s. a week,
including family or weekly earnallowance, but ings, whichever
not more than is less.
£750 in all.
— 279 —
COMPENSATION IN CASE OF INCAPACITY FOR WORK {COTlt.)
medical
aid)
Amount of compensation
Permanent incapacity
Total:
Function of
basic wage
represented by
(a) pension, or
(b) lump sum
Partial:
Function of.
reduction in
earnings
represented by
(a) pension, or
(o) lump sum
(a) 50 % of week- (a) Not more
ly e a r n i n g s ; than 100% of
in
100 % for per- reduction
sons under 21 weekly earnings.
earning less than
20s. a week.
Temporary incapacity
Total:
Percentage of
basic wage
represented by
allowance
Partial :
Percentage of
reduction in
earnings
represented by
allowance
Ditto
Family allowance of 7s. 6d. a week
for each child under 14.
(a) Not more
(a) 50 % of weekthan 100% of
ly" earnings ;
in
100% for per- r e d u c t i o n
sons under 21 weekly earnings.
earning less than
20s. a week.
(a)15662/t% of
weekly earnings.
(o)
50 % of
weekly earnings.
Ditto
Ditto
Family allowance of 7s. 6d. a
week for each child under 16.
Ditto
Ditto
Ditto
(a) Commutation
of pension for
lump sum, or
(6) Disposal
of lump sum
Review of
compensation
If change occurs
in conditions
which
determined
award
(a) CommutaReview at any
tion a t o p t i o n time.
of employer or
workman after 6
months for lump
sum fixed by arbitratororjudge,
to be applied as
judge directs.
Commutation by
agreement at any
time for lump
sum approved
by Court and
paid direct to
workman.
(a) Commutation at option of
employer
or
workman after 2
months for lump
sum fixed by
judge, to be applied as judge
directs.
Commutation by agreement at any
time for lump
sum approved by
Court and paid
direct to workman.
Review at any
time.
Persona
under 21 : compensation may
be increased at
review more than
12 months after
accident to 50 %
of probable earnings at date of
review if accident had not occurred.
(a) Commutation at option of
employer after 6
months for lump
sum fixed by
judge, to be applied as judge
directs.
Commutation by agreement at any
time for lump
sum
approved
by Court and
paid direct to
workman.
Review at any
time.
Persons
under 21 : compensation may
be increased at
review more than
12 months after
accident to 66'/io/o
of probable
earnings at date
of review if accident had not
occurred.
Ditto
Review at any
time.
Persons
under 21 : compensation may
be Increased at
review more than
12 months "after
accident to* 50%
of probable earnings at date of
review if accident had not
occurred.
— 280 —
COMPARATIVE TABLE SHOWING PROVISIONS RELATING TO
(Exclusive
COUNTRY
Waiting
period
Evaluation
of incapacity
Determination
oí permanent
incapacity
Compensation
forflrst 4 weeks is
paid by Sickness
Insurance and
thereafter by Accident Insurance.
of
Maximum and minimum
(a) pension, or (¡>) lump sum
for
permanent total incapacity
Maximum
Minimum
(a) 12 million
crowns a year;
18 million crowns
for workman so
incapacitated as
to need an attendant.
(a) 1,200,000
crowns a year;
1,800,000 crowns
for workman so
incapacitated as
to need an attendant.
AUSTRIA
Incapacity lasting 4 days is
compensated
from first day.
All injuries:
evaluation according to reduction in earnings.
In practice schedule of injuries
and corresponding degrees of incapacity is used
as a guide.
BELGIUM
Incapacity lasting 8 days is
compensated
from first day.
All injuries : Incapacity
is
evaluation ac- deemed permanent
as
from
cording to reduction in earnings. date fixed by
agreement or by
judge.
(a) 3,650 francs (a) Adults: no
a year.
provision. Apprentices
and
persons under 16:
750 francs a year,
BOLIVIA
Incapacity lasting 7 days is compensated
from
first day.
Incapacity remaining when injury has healed,
but not later
than lSyear after
accident, isdeemed permanent.
(¡>) 1,500 bolivianos in respect
of workman
working 300 days
a year.
BRAZIL
BULGARIA
Specified injuries: schedule of
corresponding degrees of incapacity. Other injuries: evaluation
by judge with
medical advice.
Ditto
Permanent incapacity: schedule of injuries
and corresponding degrees of
incapacity.
Incapacity remaining when
injury has healed is deemed permanent.
(f>) 7,200 mil- (o) Adults: no
reis.
provision. Apprentices :
see
Basic Wage.
Less any payments made
temporary incapacity.
for
(a) Pension for workman so incapacitated as to need an attendant
is paid according to following scale:
Daily v>age
15 and
16-30
31-45
46-60
61 and
Annual pension
(leva)
under
3,600
4,800
6,000
7,500
over
9,000
— 281 —
COMPENSATION IN CASE OF INCAPACITY FOR WORK
(cont.)
medical aid)
Amount of compensation
Temporary incapacity
Permanent incapacity
Total:
Function of
basic wage
represented by
(a) pension, or
(b) lump sum
(a) From beginning of fifth week
66y3% of annual
earnings; 100%
for workman so
incapacitated as
to need an attendant.
Partial:
Function of
reduction in
earnings
represented by
(a) pension, or
(6) lump sum
Total:
Percentage of
basic wage
represented by
allowance
Partial :
Percentage of
reduction in
earnings
represented by
allowance
(a) Commutation
of pension for
lump sum, or
(b) Disposal
of lump sum
Review of
compensation
if change occurs
in conditions
which
determined
award
is
Review at any
(a) From begin- During first 4 Incapacity
(a) Commutaning of fifth week weeks, 66 »/a % to deemed total un- tion by agree- time.
66 % % of reduc- 80 % of daily til injury has ment if poor law
authority responhealed
tion in annual earnings.
sible for workearnings.
man
consents.
Commutation of
pension for incapacity of not
more than 16 % %
for lump sum of
not more than 3
years' pension.
50 % of reduc(o) 50 % of an- (a) 50% of re- 50% of daily
tion in daily
nual earnings.
duction in an- earnings.
earnings.
nual earnings.
(6) Two years' (b) 18 months'
earnings.
earnings.
Allowance
is All temporary
is
paid on follow- incapacity
deemed total.
ing scale:
"•«»
**
Review within
3 years of agreement or judgment fixing pension.
(o) Lump sum
is paid direct to
workman.
Review within
2 years of judgment fixing compensation.
All temporary
incapacity
is
deemed total.
Ditto
(6) Three years' (6) 5 to 60% of
50 % of reduc- 50 % of reduction in daily
earnings.
compensation for tion in daily
earnings.
total incapacity. earnings.
(a) F r a c t i o n
(corresponding to
degree of reduction in earning capacity) of
pension paid to
workman so incapacitated as to
need an attendant, but not less
than 1,200 leva
a year.
(a) Commutation of not more
than 33%% of
permanent pension at discretion
of judge, if requested by workman. Commutation of pensions of
less than 60 francs
at request of
person concerned.
Ä
ance.
(leva)
15 and under 12
16-30
16
31-45
20
46-60
25
61 and over 30
Addition of 1 leva a day for
each child.
Review at any
time. Condition
of workman is
examined every
3 years.
— 282 —
COMPARATIVE TABLE SHOWING PROVISIONS RELATING TO
(Exclusive
COUNTRY
Waiting
period
Evaluation
of incapacity
Determination
of permanent
incapacity
Maximum and minimum
(a) pension, or (6) lump sum
for
permanent total incapacity
Maximum
CANADA
Alberta
British
Columbia
Manitoba
New
Brunswick
Incapacity lasting 4 days is compensated
from
fourth day ; if it
lasts 10 days it
is compensated
from first day.
All injuries :
evaluation
according to earnings in some suitable occupation
after accident, or
according to injury, regard being bad to workman's fitness to
resume habitual
occupation or to
re-adapt himself
to another occupation.
All injuries:
Incapacity lastacing 4 days is evaluation
c o m p e n s a t e d cording to earnfrom first day.
ings in some suitable occupation
after
accident.
Disfigurement
may be compensated without regard to reduction
in earning capacity.
Ditto
Ditto
Incapacity last- Specified injuring 7 days is ies: schedule of
corresponding
compensated
degrees of incafrom first day.
pacity. Other injuries: evaluation according to
reduction in earnings. Disfigurement may be
com p e n s a t e d
without regard
to reduction in
earning capacity
of
Minimum
Incapacity is (o) 1,100 dollars (a) 10 dollars a
deemed perman- a year.
week or weekly
ent as from date
earnings, whichfixed by Workever is less.
men's Compensation Board.
Ditto
(a) 1,250 dol- (a) 5 dollars a
lars a year.
week or weekly
earnings, whichever is less.
Ditto
ía) 1,333.30 dol- (a) 6 dollars a
week or weekly
lars a year.
earnings, whichever is less.
Ditto
(a) 825 dollars (a) 6 dollars a
a year.
week
— 283 —
COMPENSATION IN CASE OF INCAPACITY FOR WORK (COTlt.)
medical aid)
Amount of compensation
Permanent incapacity
Total:
Function of
basic wage
represented by
(a) pension, or
(ft) lump sum
Partial :
Function of
reduction in
earnings
represented by
(a) pension, or
(6) lumpsum
Temporary incapacity
Total:
Percentage of
basic wage
represented by
allowance
Partial:
Percentage of
reduction In
earnings
represented by
allowance
(a) Commutation
of pension for
lump sum, or
(b) Disposal
of lump sum
Review of
compensation
if change occurs
in conditions
which
determined
award
(o)55% of week- (a) 55% of re- 55% of weekly 55 % of reduc- (a) Commuta- Review at any
ly earnings.
duction in week- earnings.
tion in weekly tion by agree- time.
ly earnings.
earnings.
ment at
any
time.
62%% of re(o) 62 % % of (a) 62 H % of 62 y2 % of earnreduction in earn- ings.
duction in earnearnings.
ings.
ings.
Ditto
Ditto
66 % % of earn- 66%% of reduction in earnings.
ings.
Ditto
Review at any
time.
Persons
under 21 : compensation may
be Increased to
amount which
would be awarded on basis of
probable earnings at date of
review if accident had not occurred.
(a) 66%% of
earnings.
(a) 66%% of
reduction
in
earnings.
(a) 55% of
earnings.
(6) Not more 55 % of earn- 55% of reduc- (o) Commuta- Review at any
tion in earnings. tion at discretion time.
than 2,500 dol- ings.
lars.
of
Workmen's
Compensation
Board at any
time.
(6) Pension may
be substituted
for lump sum if
Board so directs.
— 284 —
COMPARATIVE TABLE SHOWING PROVISIONS RELATING TO
(Exclusive of
COUNTRY
Waiting
period
Evaluation
of incapacity
Determination
of permanent
Maximum and minimum
(a) pension, or (6) lump sum
for
permanent total incapacity
Maximum
CANADA
(coni.)
Nova Scotia
Ontario
Ditto
Permanent incapacity : evaluation in accordance with reduction in earning
capacity, having
regard to nature
of injury and age
of workman.
Temporary incapacity : evaluation according to
earnings in some
suitable occupation after accident.
Ditto
(a) 660 dollars (a) 5 dollars a
a year.
week or weekly
earnings, whichever is less.
Ditto
All injuries:
e v a l u a t i o n according to earnings in some suitable occupation
after accident.
Ditto
(a) 1,333.30 dol- (a) 12.50 dollars
lars a year.
a week or weekly
earnings whichever is less.
Quebec
Incapacity lastAll injuries:
ing 8 days is evaluation accompensated
cording to reducfrom eighth day. tion in earnings.
Saskatchewan
Incapacity lasting 7 days is
compensated
from first day.
Yukon
Incapacity last- Specified injuring 14 days is ies: schedule of
compensated
corresponding amounts of comfrom first day.
pensation. Other
injuries: evaluation according to
reduction in earning capacity.
CHILE
Minimum
Incapacity
is (a) Capital val- (a) Adults: no
deemed perman- ue of pension provision.
ent as from date not to exceed Apprentices: see
fixed by agree- 3,000 dollars.
Basic Wage.
ment or by judge.
_
Permanent incapacity: evaluation according
to schedule of
injuries and corresponding degrees of incapacity having regard to age and
habitual occupation of workman.
(b) 2,500 dollars.
Incapacity is (6) Amount of lump sum is fixed
deemed perman- by statute at 3,000 dollars, less
ent. not later than any payments made for temporary
6 months after incapacity.
accident.
Incapacity remaining when
injury has healed, but not later
than 1 year after
accident, is deemed permanent.
(a) Capital value of pension
not to exceed
that required to
produce
1,800
pesos a year.
(a) Capital value of pension
not to be less
than that required to produce
360 pesos a year.
Any payments made for temporary incapacity are deducted from
capital.
— 285 —
COMPENSATION IN CASE OF INCAPACITY FOR WORK
(cOilt.)
medical aid)
Amount of compensation
Permanent incapacity
Total:
Function of
basic wage
represented by
(a) pension, or
(ft) lump sum
Partial :
Function of
reduction in
earnings
represented by
(a) pension, or
(6) lump sum
Ditto
(a) 55 % of reduction in earnings.
Temporary incapacity
Total:
Percentage of
basic wage
represented by
allowance
Partial :
Percentage of
reduction in
earnings
represented by
allowance
Ditto
Ditto
(a) 66 % % of
66%% of week- 66%% of re(a) 66%% of
in ly earnings.
weekly earnings. reduction
duction in weekweekly earnings.
ly earnings.
(a) Commutation
of pension for
lump sum, or
(6) Disposal
of lump sum
(a) CommutaReview at any
tion at discretion time.
Persons
of
Workmen's under 21 : comC o m p e n s a t i o n pensation may
Board at any at review be intime for lump creased
more
sum to be ap- than 6 months
plied as Board after accident to
directs.
amount
which
would be awarded on basis of
probable earnings at date of
review if accident had not occurred .
Ditto
(a) 50% of an- (a) 50 % of re- 50% of daily
All temporary (a) Commutaduction in an- earnings, but not incapacity
nual earnings.
is tion at option of
nual earnings.
less than 4 dol- deemed total.
workman.
lars a day.
No distinction between permanent and temporary, or total and
partial incapacity. Compensation must not exceed 3 years' earnings
or 2,000 dollars, whichever is larger.
(6) Specified in- 50 % of daily All temporary
incapacity
is
juries: compen- earnings.
sation is flxed by
deemed total.
statute for each
injury.
Other
injuries: fraction
of compensation
for total incapacity corresponding to degree of
reduction
in
earning capacity
(a) 60% of an- (a) Not more 50% of daily
than 30 % of an- earnings.
nual earnings.
nual earnings.
Ditto
Review of
compensation
if change occurs
in conditions
which
determined
award
(ft) Lump sum
is paid direct to
workman.
Ditto
Review within
4 years of agreement or judgment fixing compensation.
—
Ditto
(a) Commutation of pensions
of less than 120
pesos a year.
Review within
2 years after
accident.
— 286 —
COMPARATIVE
COUNTRY
Waiting
period
TABLE
Evaluation
of incapacity
SHOWING
Determination
of permanent
incapacity
PROVISIONS
Incapacity lasting 14 d a y s is
compensated
from first d a y .
CZECHOSLOVAKIA
Incapacity lastAH injuries:
acing 4 days is evaluation
cording t o reduccompensated
tion in earning
from first day.
capacity. I n practice schedule of
injuries and corresponding
degrees of incapacity is used as a
guide.
DENMARK
L e n g t h of waiting period depends on regulations
of
Sick
F u n d t o which
workman belongs :
in no case is
allowance
paid
for
incapacity
not lasting more
t h a n 3 days.
ECUADOR
P e r m a n e n t incapacity revaluation a c c o r d i n g
to reduction in
earnings.
P e r m a n e n t incapacity : evaluation according
to reduction in
earning capacity
having regard t o
special skill in
h a b i t u a l occupation of w o r k m a n .
Incapacity re(a) 730 pesos a
maining when in- year.
jury h a s healed,
but not
later
t h a n 1 year after
accident, isdeemed p e r m a n e n t .
Compensation
for first 4 weeks
is paid by Sickness
Insurance
and thereafter by
Accident Insurance.
of
Minimum
(o) A d u l t s : no
provision.
App r e n t i c e s: s e e
Basic Wage.
(o) A d u l t s : no
(a) 8,000 crowns
a y e a r ; 12,000 provision.
Apcrowns for work- p r e n t i c e s : s e e
man so incapaci- Basic Wage.
t a t e d as to need
an a t t e n d a n t .
Incapacity
is
(6) 2 4 , 0 0 0
deemed p e r m a n - crowns.
ent as from d a t e
flxed by Workers'
Insurance
Council b u t , except in unusual
circumstances,
not l a t e r t h a n
1 year after accident. Compensation for first 13
weeks is paid by
Sickness Insurance and thereafter by Accident
Insurance.
Incapacity remaining when injury
h a s healed, b u t
not later t h a n
1 year after accident, is deemed
permanent.
TO
(Exclusive
Maximum and minimum
(a) pension, or (b) lump sum
for
p e r m a n e n t t o t a l incapacity
Maximum
CUBA
RELATING
<b) 1 2 0 0 0
crowns.
(b) 365 and 730
sucres for workm a n in plains and
mountains
respectively.
Less a n y p a y m e n t s made for temporary incapacity.
— 287 —
COMPENSATION
IN CASE OF INCAPACITY FOR WORK
(cO/lt.)
medical aid)
Amount of compensation
Permanent Incapacity
Total:
Function of
basic wage
represented by
(a) pension, or
(6) lump sum
Partial:
Function of
reduction in
earnings
represented by
(a) pension, or
(b) lump sum
(a) 66%% of
(a) 50% of reannual earnings. duction in earnings.
Temporary incapacity
Total:
Percentage of
basic wage
represented by
allowance
Partial :
Percentage of
reduction in
earnings
represented by
allowance
Ditto
Ditto
is
(a) From begin- (a) From begin- During first 4 Incapacity
ning of flfthweek ning of fifth week weeks 66%% of d e e m e d t o t a l
until injury has
66 % % of annual 66 % % of reduc- daily earnings.
healed.
earnings,- 100% tion in earnings.
for workman so
incapacitated as
to need an attendant.
(ft) Lump sum is such percentage
All temporary
of following basic amounts as cor- 66%% of daily
incapacity
is
responds to reduction in earning earnings.
deemed
total.
capacity :
Percentage
Basic amount
of reduction
5-15
5 times annual earnings.
16-35
5 times annual earnings
for first 15 % and 8
times for rest.
36-60
6 times annual earnings
for first 30% and
10 times for rest.
61-90
8 times annual earnings
for first 60% and
12 times for rest.
91-100
8 times annual earnings
for first 60%, 12
times for next 30 %;
and 16 times for
last 10%.
(6) Two years' (6) One year's 50% of daily
earnings.
earnings.
earnings.
Ditto
(a) Commutation
of pension for
lump sum, or
(b) Disposal
of lump sum
Review of
compensation
if change occurs
in conditions
which
determined
award
(a) Commutasion by agreement if poor law
authority
resp o n s i b l e for
workman consents.
Review at any
time.
(b) Lump sum
is applied as
Workers' Insurance Council directs. It is invested in purchase of annuity
if reduction in
earning capacity
is more than 70 %
and workman's
age is over 50.
(6) Lump sum
is paid direct to
workman.
— 288 —
COMPARATIVE TABLE SHOWING PROVISIONS RELATING TO
(Exclusive of
COUNTRY
Waiting
period
Evaluation
of incapacity
Determination
of p e r m a n e n t
incapacity
Maximum and minimum
(a) pension, or (o) l u m p s u m
for
p e r m a n e n t t o t a l incapacity
Maximum
ESTHONIA
Minimum
P e r m a n e n t inc a p a c i t y : schedule of injuries
and corresponding degrees of
incapacity.
Incapacity remaining
when
injury has healed is deemed permanent.
(a) See
Wage.
Basic
FINLAND
I n c a p a c i t y lasting 3 days is
compensated
from third day.
P e r m a n e n t inc a p a c i t y : evaluation according
to reduction in
earning capacity having regard
to special skill
required in h a b i t u a l occupation
of workman and
to his m e n t a l and
physical development, age, and
sex.
Incapacity is
deemed p e r m a n ent as from d a t e
fixed by Insurance Council, b u t
not later t h a n
120 d a y s after
accident.
(a) 200 marks a
year.
FRANCE
I n c a p a c i t y lasting 5 d a y s is
compensated
from fifth d a y ;
if it lasts 11 days
it is compensat e d from
first
day.
P e r m a n e n t inIncapacity rec a p a c i t y : evalu- maining
when
ation according injury has healed
to earnings in is deemed permost suitable oc- m a n e n t ;
date
cupation
after fixed by Presiaccident.
I n dent of Civil Tripractice schedule bunal.
of injuries and
corresponding
degrees of incapacity is used as
a guide.
(o) A d u l t s : no
provision.
Apprentices: see
Basic Wage.
GERMANY
Incapacity lasting 4 days is
compensated
from fourth day.
All injuries:
evaluation
accordingto reduction in earning
capacity on labour market in
general. I n practice schedule of
injuries and corresponding
degrees of incapacity is used as a
guide.
Compensation
for first 13 weeks
is paid by Sickness
Insurance
and
thereafter
by Accident I n surance.
(a)
See
Wage.
Basic
— 289 —
COMPENSATION
IN CASE OF INCAPACITY FOR WORK (COTlt.)
medical aid)
Amount of compensation
P e r m a n e n t incapacity
Total:
Function of
basic wage
represented b y
(a) pension or
(b) lump sum
Partial :
Function of
reduction in
earnings
represented b y
(a) pension, or
(6) l u m p sum
(a) F r o m d a t e
when incapacity
is deemed perm a n e n t 66 % % of
annual earnings;
100% for workman so incapacit a t e d as to need
an a t t e n d a n t .
T e m p o r a r y incapacity
(a) Commutation
of pension for
lump sum, or
(ft) Disposal
of l u m p sum
Review of
compensation
if change occurs
in conditions
which
determined
award
Total:
Percentage of
basic wage
represented by
allowance
Partial:
Percentage of
reduction in
earnings
represented by
allowance
(a) F r o m d a t e
when incapacity
is deemed perm a n e n t 66 % % of
reduction in annual earnings.
During first 13
weeks 50 to 6 6 % %
of earnings; allowance is paid
during this period by Sickness
Insurance
and
thereafter
by
Accident Insurance, but t h e n
it amounts to
66 % %.
All temporary
incapacity
is
deemed total.
(a) Commutation b y agreement of pensions not exceeding 15 % of annual earnings for
lump sum of not
more t h a n 10
years' pension.
Review
not
more t h a n once
a year within 3
years of award
of pension. Pensions of persons
under 15 and 17
are raised when
t h e ages of 15
and 17 are successively reached
t o amount which
would be awarded to unskilled
workmen of those
ages.
(o) 6 6 % % of
annual earnings
up t o 900 marks,
22»/s% of portion of a n n u a l
earnings in excess of 900 m a r k s .
(a) Fraction of
pension for total
incapacity proportional to reduction in earnings.
6 6 % % of daily
6 6 % % of reearnings, but not duction in earnmore t h a n 10 nor ings.
less t h a n 3 marks
a day.
(a) C o m m u t a tion of pensions
of less t h a n 50
marks a year by
agreement.
Review at a n y
time.
(a) 6 6 % % of
annual earnings
up to 4,500 frs.;
1 6 % % of portion of annual
earnings between
4,500 and 15,000
francs; 8% % of
annual earnings
i n e x c e s s of
15,000.
(a) 50% of reduction in a n nual earnings.
50% of
earnings.
All t e m p o r a r y
incapacity
is
deemed t o t a l .
(a) CommutaReview within
tion of 25% of 3 years of agreepension at dis- ment or judgcretion of judge ment fixing penif requested b y sion.
w o r k m a n . Comm u t a t i o n of pensions of 100 frs.
or less at request
of w o r k m a n .
(a) F r o m beginning of fourteenth
week 66 % % of
a n n u a l earnings
up sto 1,800 marks
22 /« % of a n n u a l
earnings in excess
of
1.800
mark«!; 100% of
a n n u a l earnings
for w o r k m a n so
incapacitated as
to need an a t tendant.
(a) F r o m beginning of fourteenth
week fraction of
pension for total
incapacity proportional t o reduction in earning capacity.
50% of daily
Incapacity
Is
earnings for first deemed t o t a l un4 weeks; 6 6 % % til injury
has
thereafter till end healed.
of t h i r t e e n t h
week.
(a) CommutaReview at a n y
tion of pension t i m e within 2
for incapacity of years after accin o t more t h a n dent.Review n o t
20% w i t h con- more t h a n once
sent of workman. a year after expiry of 2 years.
daily
19
— 290 —
COMPARATIVE TABLE SHOWING PROVISIONS RELATING TO
(Exclusive
COUNTRY
Waiting
period
Evaluation
of incapacity
Determination
of permanent
incapacity
of
Maximum and minimum
(a) pension, or (b) lump sum
for
permanent total incapacity
Maximum
Minimum
GREAT
BRITAIN
Incapacity lasting 4 days is
compensated
from fourth day;
if it lasts 4 weeks
it is compensated
from first day.
All Injuries:
evaluation according to earnings in some suitable occupation
after accident.
(a) 30 shillings
a week.
GREECE
Incapacity lasting 5 days is
compensated
from fifth day;
if it lasts 11 days
it is compensated from first day.
All injuries:
evaluation
according to reduction actual or
probable in earnings.
Incapacity is
(b) 5,000 drachmae.
deemed permanent not later than
Less any payments made for tem2 years after acporary incapacity.
cident.
HUNGARY
(Industry)
Incapacity lastPermanent ining 4 days is capacity : evaluacompensated
te on according
from first day.
to reduction in
earnings.
In
practice schedule of injuries
and corresponding degrees of incapacity is used
as a guide.
(Agriculture)
(a) See Basic
Compensation
is paid for first Wage.
10 weeks by Sickn e s s Insurance
and thereafter
by Accident Insurance.
Compensation
is paid for first
10 weeks under
voluntary Sickness Insurance,
and thereafter
by Accident Insurance.
(a) Rate of pension is fixed by
statute.
From beginning of eleventh week,
1,500,000 crowns a year.
— 291 —
COMPENSATION IN CASE OF INCAPACITY FOR WORK (COTlt.)
medical aid)
Amount of compensation
P e r m a n e n t incapacity
Total:
Function of
basic wage
represented by
(a) pension, or
(6) lump sum
Partial:
Function of
reduction in
earnings
represented by
(a) pension, or
(6) lump sum
(a) If weekly
earnings are 50s.
or more, 50 % of
such earnings. If
weekly earnings
are less t h a n 50s.
weekly p a y m e n t
is 50 % of such
earnings,
plus
half the difference
between
weekly p a y m e n t
and either 25s. or
weekly earnings,
whichever sum
is less.
(a) If weekly
earnings are 50s.
or more, 50 % of
reduction
in
weekly earnings.
If weekly earnings are less t h a n
50s., weekly payment bears same
proportion to t h e
d i f f e r e n c e between
earnings
before and earnings after accident as weekly
p a y m e n t , if incapacity was total and not partial, would bear
to earnings before accident.
T e m p o r a r y incapacity
Total:
Percentage of
basic wage
represented b y
allowance
No distinction between permanent and t e m p o r a r y incapacity.
(6) Six times
50% of
(6) Six times
a n n u a l earnings; reduction in an- earnings.
if
such
sum nual earnings,
exceeds 10,000 but not less t h a n
d r a c h m a e com- 1,500 d r a c h m a e ;
pensation
is if such sum ex10,000 d r a c h m a e ceeds 5,000 drachplus 25% of ex- mae, compensation
is
5,000
cess.
drachmae
plus
25 % of excess.
(a) F r o m beginning of eleventh
week, 66 % % of
a n n u a l earnings;
100% for workman so incapacit a t e d as to need
an a t t e n d a n t .
(a) F r o m beginning of eleventh
week, G6%% of
reduction in annual earnings.
Partial:
Percentage of
reduction in
earnings
represented by
allowance
(a) Commutation
of pension for
lump sum, or
(6) Disposal
of lump sum
Review of
compensation
if change occurs
in conditions
which
determined
award
(a) Commutation at option of
employer after 6
m o n t h s for l u m p
sum sufficient t o
purchase annuit y of 75% of
pension.
Lump
sum is applied
as judge directs.
Commutation by
agreement a t any
t i m e for lump
sum paid direct
t o workman, subject to registration of agreement
by the Court.
Review at a n y
time.
Persons
under 21 : compensation m a y be
increased at review more t h a n
6 m o n t h s after
accident to amount
which
would be awarded on basis of
probable
earnings at d a t e of
review if accident had not occurred. If at review more t h a n
6 m o n t h s after
accident, it a p h
a t average propears t arnings
12
bable e before during
review if
m o n t h s t had not
occuracciden ld have increased
red woureased
more
or dec 0 % of by average
t h a n 2s d u r i n g l 2 m o n t h s
earning accident, weekly
before t shall be varied
paymen Mpond w i t h such
to corr e earnings.
probab
daily
50 % of reduction in daily
earnings.
L u m p sum is
paid direct to
workman.
During first 10
weeks, 50% of
daily earnings.
All temporary
incapacity is
deemed total.
(a) CommutaReview at a n y
tion by agree- t i m e .
ment of pension
for incapacity of
not more t h a n
20 % if poor law
a u t h o r i t y responsible for workm a n consents.
(a) F r o m beginDuring first 10
ning of eleventh weeks,
1,500
week, fraction of crowns a d a y .
pension for t o t a l
incapacity
corresponding t o degree of reduction
capacity in earning.
Ditto
— 292 —
COMPARATIVE TABLE SHOWING PROVISIONS RELATING TO
(Exclusive of
COUNTRY
Waiting
period
Evaluation
of incapacity
Determination
of permanent
incapacity
Maximum and minimum
(a) pension, or <b) lump sum
for
permanent total incapacity
Maximum
Minimum
INDIA
Incapacity lasting 11 days is
compensated
from eleventh
day.
Permanent incapacity. Specified injuries:
schedule of corresponding degrees of incapacity. Other injuries: evaluation
according to reduction in earning capacity on
labour market in
general. Temporary incapacity:
evaluation according to reduction in earnings
in habitual occupation.
Incapacity is
(b) 3,500 ru- (b) 336 rupees.
deemed perman- pees.
1
ent as from date
fixed by agreeLess any payments made for
ment or by Com- temporary incapacity.
missioner for
Compensation.
Allowance for
temporary
incapacity cannot
continue for more
than 5 years.
IRISH FREE
STATE
Incapacity lasting 8 day s is compensated
from
eighth day; if it
lasts 14 days it
is compensated
from first day.
All injuries :
evaluation
a c c o r d i n g to
earnings in some
suitable occupation after accident.
(a) 20 shillings
a week; 10 shillings for persons
under 21 earning
less than 20 shillings a week,
—
Plus cost-of-living allowance of
75%.
ITALY
( industry)
Incapacity lasting 6 days is
compensated
from first day.
Permanent incapacity. Specified
injuries:
schedule of corresponding degrees of incapacity. Other injuries: evaluation
according to actual or probable
reduction in
earnings.
Incapacity remaining
when
injury has healed is deemed permanent.
(b) 36,000 lire. 1 (b) 6,000 lire.
Less any payments made after
incapacity has lasted 3 months.
— 293 —
COMPENSATION IN CASE OF INCAPACITY FOR WORK {COTlt.)
medical aid)
A m o u n t of compensation
(a) Commutation
of pension for
lump sum, or
(b) Disposal
of lump sum
Review of
compensation
if change occurs
in conditions
which
determined
award
(a) Commutation of allowance
at option of employer or workman after six
m o n t h s for lump
sum fixed
by
Commissioner for
Compensation
and paid direct
to
workman.
Commutation by
agreement at any
time for l u m p
sum paid direct
to workman.
Review of allowance at any
time.
Pensions
of persons under
15 are increased
t o 100% of earnings when age of
15 is reached.
(a) 50 %
of
(o) Not more
weekly earnings; t h a n 100 % of
100% for persons reduction
in
under 21 earning weekly earnings.
less t h a n 20 shil- No cost-of-living
lings a week.
allowance.
No distinction between permanent? (a) Commutaand t e m p o r a r y incapacity. váJKSS'i tion at option of
employer
after
6 months
for
l u m p sum sufficient
to
purchase
annuity
of 75% of pension. L u m p s u m
is applied
as
judge
directs.
Commutation by
agreement
at
any
time
for
l u m p sum paid
direct to workman.
Review at a n y
time. Persons under 21 : i Compensation
may
be increased at
review more t h a n
12 m o n t h s after
accident t o 50 %
of probable earnings at d a t e of
review if accident
had
not
occurred.
(6) Six times
a n n u a l earnings.
50 % of
earnings.
No^compensa- 1
tion is awarded
in case of temporary partial incapacity.
Review within
2 years of accident.
P e r m a n e n t incapacity
Temporary incapacity
Total :
Function of
basic wage
represented by
(a) pension, or
(6) lump sum
Partial :
Function of
reduction in
earnings
represented by
(a) pension, or
(b) lump sum
Total:
Percentage of
basic wage
represented b y
allowance
Partial :
Percentage of
reduction in
earnings
represented b y
allowance
(b) 42 times
monthly
earnings.
84 t i m e s
for persons u n der 15.
(6) Fraction of
l u m p sum for
total incapacity
proportional to
reduction in earnings.
50 % of monthly earnings b u t
not more t h a n 30
rupees a m o n t h ;
66%% for persons under 15.
Not more t h a n
100% of reduction in earnings.
(b) Six times
reduction in annual earnings.
daily
(b) In cases of
permanent
incapacity resulting in reduction
in earnings of
50 % or more
l u m p s u m is paid
into National Social
Insurance
F u n d . Until expiry of 2 years,
monthly instalm e n t s of lump
sum equal to '/is
of a n n u i t y purchasable
with
such sum
are
paid. On expiry
of 2 years lump
sum less instalment Is invested
in purchase of
a n n u i t y . In exceptional cases
it may be paid
direct to workman
— 294 —
COMPARATIVE TABLE SHOWING PROVISIONS RELATING TO
(Exclusive of
COUNTRY
Waiting
period
Evaluation
of incapacity
Determination
of p e r m a n e n t
incapacity
Maximum and minimum
(a) pension, or (6) lump sum
for
p e r m a n e n t t o t a l incapacity
Maximum
ITALY (coni.)
(Agriculture)
Incapacity lasting 11 days is
compensated
from eleventh
day.
Ditto
Ditto
Minimum
(b) Amount of l u m p sum is prescribed by s t a t u t e , and depends
on age, sex and n u m b e r of relatives
of injured w o r k m a n .
I t is graduated as follows:
Age of
workman
Male
Female
.^^
12-15
15-23
23-55
55-75
5,400
7,500
9,750
6,000
3,600
4,500
6,000
3,000
Less any p a y m e n t s made after
incapacity has lasted 3 m o n t h s .
Compensation is increased 10%
up to m a x i m u m of 50 % in respect
of wife and each child under 15.
JAPAN
(Factory
Incapacity remaining
when
injury has healed
is deemed permanent.
Act)
(Health Insurance Act)
LATVIA
P e r m a n e n t incapacity: schedule of injuries
and corresponding degrees of incapacity.
Incapacity remaining when injury has healed
is deemed permanent.
(a) 100,000 roubles a year.
150,000 roubles
for workmen so
incapacitated as
t o need an attendant.
(a) See
Wage.
Basic
— 295 —
COMPENSATION IN CASE OF INCAPACITY FOR WORK (COTlt.)
medical aid)
Amount of compensation
Permanent incapacity
Total:
Function of
basic wage
represented by
(a) pension, or
(b) lump sum
Partial:
Function of
reduction in
earnings
represented by
(a) pension, or
(6) lump sum
Temporary incapacity
Total:
Percentage of
basic wage
represented by
allowance
(b) Fraction of
Dally allowance
lump sum for graduated as foltotal incapacity lows :
proportional to
reduction
in iguale
Fem.
earnings.
man
(lire)
Partial:
Percentage of
reduction in
earnings
represented by
allowance
Ditto
12-15 1.50 1.50
15-65 4.00 3.00
No compensation is awarded
in case of temporary total incapacity to landowners, métayers
tenant farmers,
their wives" and
children.
(6) More than
150 days' earnings. More, than
170 days' earnings for workmen
so incapacitated
as to need an
attendant.
(a) From date
when incapacity
is deemed permanent 66 y, % of
annual earnings;
100% for workmen so incapacitated as to need
an attendant.
(b) If workman
cannot resume
habitual occupation, more than
100 days' earnings. If he can
resume it, but
with diminished
capacity, more
than 30 days'
earnings. If female worker is
disfigured, more
than 100 days'
earnings
(a) Commutation
of pension for
lump sum, or
(b) Disposal
of lump sum
Review of
compensation
if change occurs
in conditions
which
determined
award
(b) In cases of
permanent incapacity where
lump sum would
purchase annuity
of at least 500
lire, lump sum is
paid into National Social Insurance Fund. Until
expiry of 2 years,
monthly instalments of lump
sum equal to Vu
of annuity purchasable with
such sum are
paid. On expiry
of 2 years, lump
sum less instalments is invested
in purchase of
annuity, if annuity would not
be less than 500
lire. Otherwise it
is paid direct to
workman.
Ditto
(a) Commutation by agreement of pensions
not exceeding
15% of annual
earnings for lump
sum of not more
than 10 years'
pension.
Review
not
more than once
a year with in 3
years of award
of pension. Pensions of persons
under 15 and 17
are successively
raised when the
ages of 15 and 17
are reached t o
amount w h i c h
would be awarded to unskilled
workmen of those
ages.
More than 50 % All temporary
of daily earnings; incapacity
is
33y3% from be- deemed total.
ginning of fourth
month.
60 % of dailyearnings for not
more than 180
days.
Ditto
(a) From date During first 13
when incapacity weeks, 66 % % to
is deemed per- 100% of earnmanent 66 •-/, % ofings; allowance
reduction in an- is paid during
nual earnings.
this period by
Sickness Insurance and thereafter by Accident
Insurance but
then it amounts
to 66y 3 %.
Ditto
— 296 —
COMPARATIVE TABLE SHOWING PROVISIONS RELATING TO
(Exclusive oj
COUNTRY
Waiting
period
Evaluation
of incapacity
Determination
of p e r m a n e n t
incapacity
Maximum and minimum
(a) pension, or (b) lump sum
for
p e r m a n e n t total incapacity
Maximum
LITHUANIA
I n c a p a c i t y lasting 4 days is
compensated
from first day.
Ditto
I n c a p a c i t y remaining when injury h a s healed
is deemed permanent.
LUXEMBURG
I n c a p a c i t y lasting 3 days is
compensated
from third day.
All injuries:
evaluation
according to reduction in earning
capacity.
Compensation
for first 13 weeks
is paid by Sickness Insurance
and thereafter
by Accident Insurance.
NETHERLANDS
I n c a p a c i t y lasting 3 days is
compensated
from first day.
Incapacity lasting more t h a n 6
weeks : evaluation according to
earning capacity
in some occupation which is
suitable in view
of w o r k m a n ' s
training and his
habitual occupation and in which
employment
is
available locally.
Ditto
Ditto
( Industry)
(Agriculture)
Minimum
(a) See
Wage.
Basic
(a) 1,450 francs
a y e a r ; 2,250
francs for workmen so incapacitated as to need
an a t t e n d a n t .
(a) See
Wage.
Basic
If incapacity
lasts more t h a n
6 weeks, t e m p o r a r y allowance is
replaced by pension (provisional
or final).
(a) 5.60 gulden
a d a y ; 8 gulden
for workmen so
incapacitated as
to need an attendant.
(a) A d u l t s : no
provision.
Apprentices:
see
Basic W a g e .
Ditto
Ditto
Ditto
— 297 —
COMPENSATION
IN CASE OF INCAPACITY FOR WORK (COTlt.)
medical aid)
A m o u n t of compensation
Temporary incapacity
P e r m a n e n t incapacity
Total:
Function of
basic wage
represented by
(a) pension, or
(6) lump sum
Partial :
Function of
reduction in
earnings
represented by
(a) pension, or
(6) lump sum
(a) 66 % % of
annual earnings.
(a) 6 6 % % of
reduction in annual earnings.
50%
ings.
(a) F r o m beginning of fourteenth
week, 66 % % of
annual earnings,
up 2 to 1,500 frs.;
2-2 /o % of portion of annual
earnings between
1,500 and 3,750
francs: 100% of
annual earnings
for workmen so
incapacitated as
to need an attendant.
(a) F r o m beginning of fourteenth
week fraction of
pension for t o t a l
incapacity proportional t o reduction in earning capacity.
(o) 70%of daily
earnings: 100%
for workmen so
incapacitated as
to need an attendant.
Ditto
Total:
Percentage of
basic wage
represented b y
allowance
Partial :
Percentage of
reduction in
earnings
represented by
allowance
(a) Commutation
of pension for
l u m p sum, or
(b) Disposal
of lump sum
Review of
compensation
if change occurs
in conditions
which
determined
award
Ditto
(a) Commutation by agreement of pensions
for l u m p sum of
not more t h a n
10 years' pension.
Review within
3 years of award
of pension. Pensions of persons
under 15 and 17
are successively
raised when t h e
ages of 15 and 17
are reached to
amount
which
would be awarded to unskilled
workmen of those
ages.
50% of daily
earnings for first
4 weeks; 6 6 % %
thereafter till
end of t h i r t e e n t h
week.
I n c a p a c i t y is
deemed t o t a l until injury
has
healed.
(a) Commutation at option
of Insurance Institution of pension not exceeding 10% of annual earnings.
Review at any
time. Pensions
of persons under
16 are raised
when t h e age of
16 is reached to
amount
which
would be awarded to an unskilled
adult w o r k m a n .
(a) 70% of reduction in daily
earnings.
70% of daily
earnings. 100%
for workmen so
incapacitated as
to need an attendant.
I n c a p a c i t y lasting not
more.
t h a n 6 weeks is
deemed t o t a l .
Ditto
Ditto
Ditto
of
earn-
Review at
time.
(a) Pension for
incapacity of not
more t h a n 10 %
may be commuted at option of
Insurance Institution for lump
sum of 900 t i m e s
daily pension.
Ditto
any-
— 298 —
COMPARATIVE TABLE SHOWING PROVISIONS RELATING TO
(Exclusive of
COUNTRY
Waiting
period
Evaluation
of incapacity
Determination
of permanent
incapacity
Maximum and minimum
(a) pension, or (¡>) lump sum
for
p e r m a n e n t t o t a l incapacity
Maximum
NETHERLANDS (coni.)
(Seamen)
All injuries:
evaluation
according to reduction in earning
capacity in t h e
work suitable in
view of t h e seaman's
strength
before t h e accident
and
his
skill.
(a) 5.60 gulden
a day.
Minimum
NEWFOUNDLAND
I n c a p a c i t y lasting 8 days is
compensated
from eighth d a y ;
if it lasts 14 days
it is compensated
from first d a y .
All injuries :
evaluation
according to earnings
in
some
suitable occupation after accident.
(a) 10 dollars a
week.
(a) A d u l t s : no
provision. Workmen under 2 1 : 5
dollars a week or
weekly earnings,
whichever is less.
NEW
ZEALAND
I n c a p a c i t y lasting 3 days is
compensated
from first d a y .
(a) £3 15s. a
week but
not
more t h a n £750
in all.
(a) A d u l t s : no
provision. Workmen under 2 1 :
23.2s. a week.
NORWAY
( Industry)
Incapacity lasting 4 days is
c o m p e n s â t ed
from fourth day.
Specified injuries: schedule of
corresponding degrees of incapacity. Other injuries: evaluation
according
to
earnings in some
suitable occupation after accident.
All injuries:
evaluation
according to reduction in earning
capacity.
Incapacity remaining when
injury
has
healed is deemed
permanent.
(a) 1,200 crowns
a year.
(a) A d u l t s : 270
crowns a year.
Apprentices: 450
crowns
(men)
and 300 crowns
(women).
Ditto
Ditto
(a) 1,620 crowns
a year.
(a) 450 crowns
a year.
Ditto
Ditto
(a) Amount of pension is prescribed by s t a t u t e and depends on
age. I t is 720 crowns a year for
fishermen under 60 and 600 crowns
for those over 60.
(Seamen)
(Fishermen)
Compensation
is paid only for
incapacity lasting after injury
h a s healed.
— 299 —
COMPENSATION IN CASE OF INCAPACITY FOR WORK
(cOtlt.)
medical aid)
Amount of compensation
T e m p o r a r y incapacity
P e r m a n e n t incapacity
Total-
1
Partial:
represented by
(a) pension, or
(»lumpsum
|
represented by
( Tae n s i o n OTr
\ 5 ^ ™ u m
aêfer '€£-
Total:
Percentage of
basic wage
represented by
allowance
Partial :
Percentage of
reduction in
earnings
represented by
allowance
ia) Commutation
of pension for
lump sum. or
(6) Disposal
of lump sum
Review of
compensation
if change occurs
in conditions
which
determined
award
(a) 70% of daily
e arnings.
Ditto
No distinction between permanent
and t e m p o r a r y incapacity.
(a) 50%
of
weekly earnings;
100% for workmen under 21
earning less t h a n
5 dollars a week.
(a) Not more
t h a n 100% of
reduction
in
weekly earnings.
Ditto
(o) Commutation at option
of employer after
6 months
for
lump sum fixed
by agreement or
by judge, to be
applied as judge
directs.
Review at any
time. Workmen
under 21 : Compensation may
be increased at
review more t h a n
12 m o n t h s after
accident t o 50 %
of probable earnings at d a t e of
review if accident had
not
occurred.
(a) 58 % of
weekly earnings.
(a) 58% of reduction in weekly earnings.
Ditto
(a) Commutation at discretion
of judge for l u m p
sum equal to present value
at
5 % compound
interest of aggregate of weekly
p a y m e n t s which
would probably
become payable.
Review at
time.
(a) Commutation of 25 % of
pension at request of workman, if satisfactory evidence is
given t h a t lump
sum will be wisely applied. Commutation at request of workman of pension
not exceeding
10% of annual
earnings.
(a) Commutation of 25% of
pension at request of workman if satisfactory evidence is
given t h a t lump
sum
will
be
wisely applied.
Ditto
Ditto
Ditto
Payments
years.
ceas e
(a) 60 % of annual earnings.
Ditto
Ditto
at
end
of
6
daily
All incapacitv
for first 10 days
is deemed t o t a l .
Thereafter 60%
of reduction in
daily earnings.
Full wages as
long as employment continues.
While in hospital
compensation as
in case of d e a t h
is payable to dependants.
All temporary
incapacity
is
deemed t o t a l .
(a) 60% of re60 % of
duction in annual earnings.
earnings.
Ditto
No compensatic n for t e m p o r a r (a) 60% of reduction in annual incapacity.
earnings. Reduction of less t h a n
20 % is not compensated.
Ditto
Ditto
any
— 300 —
COMPARATIVE TABLE SHOWING PROVISIONS RELATING TO
(Exclus içe of
COUNTRY
Waiting
period
Evaluation
of incapacity
Determination
of p e r m a n e n t
incapacity
Maximum and minimum
(a) pension, or (6) l u m p sum
for
permanent t o t a l incapacity
Maximum
PANAMA
Permanent inc a p a c i t y . evaluat i o n according
to reduction in
earning capacity.
PERU
List of injuries
constituting
permanent incapacity.
POLAND
Former Germ a n Territory
Former Austrian and
Russian
Territories
ROUMANIA
I n c a p a c i t y remaining
when
injury h a s healed
is deemed permanent.
(a) 40 pounds a
(a) See Basic
I n c a p a c i t y re- year.
. Wage.
maining when injury h a s healed,
but not later t h a n
Compensation is increased 25 % if
3 years after acwas woman or child under
cident, is deemed victim
18.
permanent.
I n c a p a c i t y lasting 3 d a y s is
compensated
from third day.
All injuries :
evaluation
according to reduction in earning
capacity on labour m a r k e t in
general. In practice schedule of
injuries and corresponding
degrees of incapacity is used as
a guide.
Compensation
for first 13 weeks
is paid by Sickness I n s u r a n c e
and thereafter
by Accident I n surance.
Ditto
All injuries:
evaluation
according to reduction in earning
capacity. In practice schedule of
injuries and corresponding
degrees of
incapacity is used as
a guide.
Compensation
for first 4 weeks
is paid by Sickness
Insurance
and thereafter
by Accident Insurance.
PORTUGAL
Minimum
(a) See
Wage.
All injuries:
evaluation
according to reduction in earnings.
I n c a p a c i t y lasting 4 days is
compensated
from fourth d a y ;
if it lasts 8 days
it is compensated from
first
day.
All injuries:
evaluation by
medical experts.
Basic
(a) A d u l t s : no
provision.
Apprentices :
see
Basic "Wage.
Incapacity remaining
when
injury has healed is deemed
permanent.
T(aM,600 lei
a
year for workmen working not
more t h a n 300
days a y e a r ;
2,400 lei for workmen so incapacit a t e d as to need
an a t t e n d a n t .
Plus cost-of-livi ig
200%.
allowance of
- — 301 —
COMPENSATION IN CASE OF INCAPACITY FOR WORK
medical
(cOJlt.)
aid)
Amount of compensation
P e r m a n e n t incapacity
Temporary incapacity
(a) Commutation
of pension for
lump sum, or
(6) Disposal
of l u m p sum
Review of
compensation
if change occurs
in conditions
which
determined
award
Total :
F u n c t i o n of
basic wage
represented by
(a) pension, or
(6) lump sum
Partial :
Function of
reduction in
earnings
represented by
(a) pension, or
(b) lump sum
(6) 18 m o n t h s '
earnings.
(6) One year's
earnings.
Plus
lump sum of
66 % % of reduction in annual
earnings 1.
50 % of
earnings.
daily
All t e m p o r a r y
incapacity
is
deemed total.
(a) 3 3 % of annual earnings.
(a) 33 % of reduction in earnings.
33 % of
earnings.
daily
50 % of reduction in dally
earnings.
(a) Commutation at option of
employer
for
l u m p sum of 2
years' earnings,
paid direct t o
workman.
Review within
3 years of accident.
(a) F r o m beginning of fourteenth
week, 66 % % of
annual earnings
up2 to 1800 zloty;
22 /o % of annual
earnings in excess of 1800 zlot y . 100% of annual earnings for
workman so incapacitated as to
need an a t t e n d ant.
(a) F r o m beginDuring first 13
ning of fourteenth weeks 60 %. of
week, fraction of daily earnings
pension for t o t a l '
incapacity proportional to reduction in earning capacity.
I n c a p a c i t y is
deemed t o t a l until injury
has
healed.
(0) Commutation of pension
for incapacity of
not more t h a n
20 % w i t h consent of workman. .
Review at a n y
t i m e within 2
years after accid e n t . Review n o t
more t h a n once
a year after expiry of 2 y e a r s .
(a) F r o m beginning
of
fifth
week, 66 % % of
a n n u a l earnings ;
100% for workman so incapacit a t e d as to need
an a t t e n d a n t .
(a) From beginDuring first 4
ning
of
fifth weeks, 60 % of
week, 66 % % of daily earnings
reduction
in
earning capacity.
Ditto
(a) 6 6 % % of
annual earnings
up t o 700 escud o s ; 33»/ 3 % of
earnings in excess of 700 escudos.
( a ) 50 % of reduction in earnings.
66 % % of daily
earnings.
(0) 66.%% of
a n n u a l earnings;
100% for workmen so incapacit a t e d as to need
an a t t e n d a n t .
(a) 6 6 % % of
reduction in annual
earnings,
plus
cost-ofliving allowance
v a r y i n g from
50% to 200%
according t o degree of incapacity.
Unmarried work- All t e m p o r a r y
men : 3 5 % of incapacity is
earnings; maxi- deemed t o t a l .
m u m of 9 8 l e i
a week. Married
workmen : 50 % of
earnings: maxim u m of 140 lei a
week.
Total:
Percentage of
basic wage
represented by
allowance
Partial:
Percentage of
reduction in
earnings
represented by
allowance
y
Ì.
v.
•
i
Review at any
(a) Commutation by agree- t i m e .
ment if poor law
authority responsible for workman consents.
50 % of reduction in daily
earnings.
(a) Commutation of pensions
by agreement for
incapacity of not
more t h a n 30%
without cost-ofliving allowance.
Review a t a n y
time.
í j '¿It is not clear whether this provision applies also to cases of permanent total incapacity! but it would seem
probable.
.
— 302 —
COMPARATIVE TABLE SHOWING PROVISIONS RELATING TO
(Exclusive of
COUNTRY
Waiting
period
Evaluation
of incapacity
Determination
of permanent
incapacity
Maximum and minimum
(a) pension, or (b) lump sum
for
permanent total incapacity
Maximum
Minimum
RUSSIA
—
—
Ditto
—
—
SALVADOR
—
—
Incapacity remaining when
injury has healed, but not later
than 1 year after
accident, is deemed permanent.
—
(b) 15,000 centavos for workmen working 300
days a year.
SERB-CROAT- Incapacity last- Permanent inSLOVENE
ing 4 days is capacity: evaluat i o n according
KINGDOM
compensated
to reduction in
from first day.
earning capacity.
Incapacity remaining when
injury has healed, but not later
than 10 weeks
after accident, is
deemed permanent.
(a) 1,200 dinar
a year. 1,600
dinar for workmen so incapacitated as to need
an attendant.
(a) 600 dinar a
year. 800 dinar
for workmen so
incapacitated as
to need an attendant.
All injuries :
Incapacity lastacing 7 days is evaluation
cording to reduccompensated
tion
in
earning
from first day.
capacity.
Incapacity remaining when
injury has healed, but not later
than one year
after accident, is
deemed permanent.
(6) Adults: no
provision. Workmen under 21 :
£300.
Less any pay nents made for
temporary incapaicity.
SOUTH
AFRICA
SPAIN
Lists of injuries
constituting permanent total
and partial incapacity.
Ditto
(b) £750.
(6) 1,200 pesetas for workmen
working 300 days
a year.
— 303 —
COMPENSATION
IN CASE OF INCAPACITY FOR WORK
(cOilt.)
medical aid)
A m o u n t of compensation
P e r m a n e n t incapacity
Temporary incapacity
(a) Commutation
of pension for
l u m p sum, or
(b) Disposal
of lump sum
Review of
compensation
if change occurs
in conditions
which
determined
award
Total:
F u n c t i o n of
basic wage
represented by
(a) pension, or
(ft) lump sum
Partial :
Function of
reduction in
earnings
represented by
(a) pension, or
(b) l u m p sum
Total:
Percentage of
basic wage
represented by
allowance
Partial :
Percentage of
reduction in
earnings
represented by
allowance
(a) 6 6 % % Of
average monthly
earnings; 100%
for workman so
incapacitated as
to need an attendant.
(a) R a t e of pension depends on
degree of incapacity and r e sources of
injured.
100% of schedule wage-rate for
class of workmen
to which injured
belongs, but not
less t h a n actual
earnings.
Ditto
—
—
(6) Two years'
earnings.
(b) 18 m o n t h s '
earnings.
50 % of
earnings.
daily
Ditto
—
—
(a) 100% of annual earnings.
(a) 100% of re66 % % of daily
duction in annual earnings.
earnings.
Ditto
(b) Three years'
earnings.
(b) Three times
reduction in annual earnings,
but not
more
t h a n 50% of 3
years' earnings.
W o r k m e n under
21 : minimum of
£150.
50 % of weekly
earnings. 100%
or 30s. a week or
weekly earnings,
whichever is
least, for workmen u n d e r 21 or
workman unable
to maintain himself and dependa n t s on 50 % of
earnings. No a b solute m a x i m u m
for first three
months, but
thereafter £3 a
week.
(b) One y e a r ' s
7 5 % of
(b) Two years'
earnings if inca- earnings. If de- earnings.
pacitated for all gree of incapacioccupations. 18 t y for habitual
is
m o n t h s ' earnings occupation
if incapacitated less t h a n 50 %
for habitual oc- (women, and men
over 60, 4 0 % ) ,
cupation.
it is not compensated.
daily
Ditto
Ditto
(a) CommutaReview at a n y
tion by agree- time.
ment of pension
for incapacity of
n o t more t h a n
2 0 % , if poor law
authority responsible for workman consents.
(b) L u m p sum
is applied
as
judge directs.
— 304 —
COMPARATIVE TABLE SHOWING PROVISIONS RELATING TO
(Exclusive of
COUNTRY
Waiting
period
SWEDEN
Incapacity lasting 4 days is
compensated
from first d a y .
SWITZERLAND
Incapacity lasting 3 days is
compensated
from third d a y .
URUGUAY
Incapacity lasting 8 days is
compensated
from eighth d a y ;
if it lasts 31 days,
it is compensated from first d a y .
Evaluation
of incapacity
P e r m a n e n t incapacity : evaluation
according
to r e d u c t i o n in
earning capacity
on labour m a r k e t
in general, regard being had
also to reduction
in earning capacity in h a b i t u a l
occupation and
to age and sex.
P e r m a n e n t incapacity : evaluat i o n according
to reduction in
earnings.
Determination
of p e r m a n e n t
incapacity
Maximum and minimum
(a) pension, or (6) lump sum
for
p e r m a n e n t t o t a l incapacity
Maximum
Minimum
I n c a p a c i t y remaining
when
injury has healed is deemed
permanent.
(a) 1,600 crowns
a year.
2,400
crowns for workman so incapacitated as to need
an a t t e n d a n t .
(a) 300 crowns
a year.
450
crowns for workman so incapacit a t e d as to need
an a t t e n d a n t .
I n c a p a c i t y is
deemed permanent when it appears t h a t continuation
of
medical t r e a t ment will not improve e a r n i n g
capacity of workman.
(a) 4,200 francs
a y e a r ; 6,000
francs for workmen so incapacitated as to need
an a t t e n d a n t .
I n c a p a c i t y remaining
when
injury has healed is deemed permanent.
(a) 500 pesos a
year.
(a) Adults : no
provision. Workmen u n d e r 21 :
see Basic Wage.
— 305 —
COMPENSATION IN CASE OF INCAPACITY FOR WORK
(concluded)
medical aid)
Amount of compensation
Permanent incapacity
Partial :
Function of
reduction in
*
earnings
represented by
(a) pension, or
(b) lump sum
Temporary incapacity
(a) Commutation
of pension for
lump sum, or
(b) Disposal
of lump sum
Review of
compensation
if change occurs
in conditions
which
determined
award
Total:
Percentage of
basic wage
represented by
allowance
Partial :
Percentage of
reduction in
earnings
represented by
allowance
During first 35
days, daily allowa n c e of 1-3.50
crowns, according to contribution of workman
to compulsory
State Pension
Scheme; thereafter 66%% of
daily earnings.
All incapacity
for first 35 days
is deemed total;
thereafter 66 % %
of reduction in
daily earnings.
If reduction is
less than 25 %, it
is not compensated.
(a) CommutaReview at any
tion at request time.
of workman with
consent of Insurance Institution,
in exceptional
cases.
(a) 70 % of annual earnings.
100% for workman so incapacitated as to need
an attendant.
(a) 70% loss of
80 % of daily
earning power, earnings ; maxicorresponding to mum of 16.8
the loss of work- francs a day.
ing capacity recognised.
Temporary incapacity may be
deemed total or
partial, and the
Act contains no
provisions dealing
with this point.
In practice, compensation is reduced 25, 50 or
75 % according
to the degree of
incapacity.
(a) All invalidity or survivors'
pensions under
10 francs per
month, or pensions where the
benenciairies have
been
resident
abroad for at
least a year,
may be redeemed
at any time by
the National
Fund.
(a) 66%% of
annual earnings.
(a) 50% of re50% of daily
All temporary
duction in an- earnings.
i n c a p a c i t y is
nual earnings.
deemed total.
Total:
Function of
basic wage
represented by
(a) pension, or
(b) lump sum
(a) 66 % % of (a) 66%% of
annual earnings. reduction in an100% for work- nual earnings.
men so incapacitated as to need
an attendant.
All pensions
subject to review
within three years
oi award, and
again at the end
of the 6th, and
9th years respectively. If, at the
date of the accident, the insured
was not in receipt
of the full wages
current in his
occupation, his
annual earnings
shall be calculated on the basis
of such wages,
from the date
at which they
would probably
have been payable, had no
accident occured.
Review n o t
more than once a
year at request
of employer or
workman until
incapacity has
been finally determined.
20
CHAPTER V
MEDICAL AID
Injuries caused by industrial accidents, even where they do not
result in permanent incapacity, almost always require medicai
treatment, the object of which is to restore the health of the injured
and to prevent or mitigate incapacity.
The organisation of medical aid is therefore of prime importance
at once for the injured workman who wants to regain his ability
to work, for the employer or insurance institution whose liabilities
are decreased in proportion as the degree of incapacity is less, and
for society in general whose interest is to maintain the greatest
amount of productive labour and to lighten the burden implied
by the existence of invalids who are unable to work.
It is therefore not to be wondered at that in almost all countries
medical aid is considered as a normal element of compensation, as
a right for the workman and a liability for the employer or insurance
institution.
There are, however, a few countries where accident victims are
entitled to no medical aid, or to aid of an inadequate character.
Such is the case in the Australian Commonwealth and States,
India, Irish Free State, Italy, New Zealand, Quebec, Saskatchewan,
and South Africa. The laws of these countries, except Italy and
Quebec, are based on the British Workmen's Compensation Act,
1906. This Act has been supplemented in Great Britain, but not
elsewhere in the British Empire, by sickness insurance, which
provides medical aid to industrial accident victims. In Italy
the National Accident Fund, which is the most important accident
insurance institution, has organised medical aid on its own initiative
and at its own expense.
The medical aid provided in the various countries differs in
quality, quantity, and form. Accordingly, the examination of
the subject will be undertaken under three heads :
(1) The elements of medical aid;
(2) The limits of medical aid ;
(3) The organisation of medical aid.
— 307 —
§ 1.— The Elements of Medical Aid.
Medical aid proper consists of the following elements: first aid,
treatment by a general practitioner, the supply of drugs, hospital
treatment, treatment by specialists, and treatment by special
processes (thermal treatment, electro-therapy, etc.).
Beside medical aid proper, there is vocational rehabilitation and
the supply of artificial limbs and appliances, which in recent years
have begun to assume an important place in compensation, but
which raise special problems of an economic order.
MEDICAL AID PROPER
An examination of the texts of the most important laws and regulations does not always reveal the nature and extent of medical
aid as it is actually granted to accident victims in various countries.
It may vary considerably according to the judicial interpretation
given to the text, according to the state of development of public
health services, and according to the kind of medical services set
up by employers, mainly in large undertakings.
First aid is exceedingly important. The seriousness of an injury
often depends on the character of the treatment given at the very
beginning. First aid is specifically mentioned as an element of
medical aid in the following countries : Bolivia, Brazil, the Canadian Provinces, Chile, Cuba, Ecuador, Great Britain, Italy, Peru,
Roumania, Spain, and Sweden.
Treatment by a general practitioner and the supply of drugs are
provided for in every country where medical aid forms part of
compensation. Although the laws are generally not explicit on
this point, it is obvious that medical treatment includes surgical
treatment where this is found to be necessary.
Treatment by specialists or under special processes (hydrotherapy, electro-therapy, massage, etc.) are not expressly mentioned as a right in any law. Nevertheless, under the influence of
recent progress in medicine, medical aid for accident victims is
tending more and more to include treatment by specialists or
under special processes.
Institutions which have a monopoly of insurance, in countries
where insurance is compulsory, may, in their discretion, provide
any kind of special treatment with the object of lessening the degree
of incapacity; such is the case, for example, in Austria, the Canadian
provinces, Czechoslovakia, Denmark, Germany, and Poland.
— 308 —
Hospital treatment is often indispensable in serious cases. It is
expressly provided for in the laws of the following countries :
Austria, Bolivia, Brazil, Bulgaria, Canadian Provinces, Chile,
Czechoslovakia, Denmark, Esthonia, Finland, France, Germany,
Hungary, Latvia, Lithuania, Luxemburg, Netherlands, Norway,
Poland, Portugal, Roumania, Serb-Croat-Slovene Kingdom, Spain,
Sweden, Switzerland.
Hospital treatment involves an important financial question,
namely, whether the allowance paid to the injured workman
(generally one-half or two-thirds of his basic wages) should be
discontinued, or at least decreased, during the period of treatment.
The solutions to this problem differ from one country to another.
(1) The allowance is suspended during hospital treatment if
the workman has no dependants, in Austria, Czechoslovakia,
Finland, Germany, Hungary, Luxemburg, Norway, Poland, and
the Serb-Croat-Slovene Kingdom.
(2) The allowance is reduced, whether the injured workman has
a dependent family or not, in Bulgaria (reduction of between twothirds and three-quarters, according to wage-class), Sweden
(reduction of not more than one-half), and Denmark (reduction
varying according to the rules of the sickness funds which provide
the treatment). In Switzerland the National Fund is authorised
to deduct an amount not exceeding 75% of the unemployment
benefits payable, or 50 % of that amount if there are dependants,
to defray the cost of maintaining the insured in a hospital or
nursing institution, or of nursing the patient at home.
(3) The allowance is reduced instead of suspended when the
injured workman has dependants, in Austria, Czechoslovakia,
Finland, Germany, Hungary, Luxemburg, Norway, Poland and
the Serb-Croat-Slovene Kingdom.
In Germany, Luxemburg and Poland (former German territory,
if the hospital treatment occurs during the first thirteen weeks,
the workman's dependants receive half the allowance; from the
fourteenth week, they are entitled to a temporary pension equal
to the pension which would be paid if the workman had died,
i.e. 60 per cent, of earnings.
In Austria, Czechoslovakia, Poland (former Austrian and Russian
territories) the dependants receive during hospital treatment at
least half the allowance, i.e. 40 per cent, of earnings in Austria,
30 per cent, in Poland, and 33 */ 3 per cent, in Czechoslovakia and
the Serb-Croat-Slovene Kingdom.
In Finland, during hospital treatment, the wife of the injured
— 309 —
workman receives 40 per cent, of the allowance and each child
under sixteen years 20 per cent.
In Hungary, the family of the injured workman receives half
the allowance during hospital treatment.
In the remaining countries the laws contain no provisions
concerning the maintenance, suspension or reduction of allowances
during hospital treatment, and there is every reason to believe
that the allowance is maintained.
ARTIFICIAL LIMBS AND VOCATIONAL REHABILITATION
A large number of accident victims are unable, by reason
of their injuries, to engage in remunerative work unless they
are provided with artificial limbs or orthopaedic appliances,
and unless they have undergone a course of vocational rehabilitation.
In spite of their undoubted value, the questions of prosthesis
and rehabilitation had until the war only been studied in a fragmentary manner and organised on a restricted scale. The most
interesting work had been done in the Scandinavian countries and
at Charleroi in Belgium. Uo attempt was, however, made to fit
the disabled for competition on the general labour market; the
object was rather to give him a regular occupation in workshops
connected with hospitals and subsidised by the state, so as to
enable him to preserve his self-respect. In fact the provision of
work for the mutilated was no more than a superior form of social
assistance.
The world war suddenly increased the number of disabled by
some ten million men, mostly young and belonging to the wageearning class. In view of the necessity of warding off the moral
depression which often results from idleness, and of providing an
addition to the disabled man's resources, indispensable on account
of the low rate of pensions which was all the states could afford,
and in view also of the necessity for the nation of maintaining and
restoring the productive force of so large a number of workers,
the problem of the rehabilitation of the war-disabled pressed
urgently for a solution at the hands of public opinion, parliaments
and governments.
From the very beginning of the war researches were undertaken
on all sides to discover the best methods for restoring the disabled
to an active life. Prosthesis and rehabilitation became regular
branches of the art and science of medicine: in every country
a great net-work of national, regional, and local institutions was
— 310 —
organised with the assistance of the State, associations of workers,
employers, and private individuals, and hundreds of centres for
fitting artificial limbs, schools and re-training workshops were
created. This technical and scientific progress was completed by
progress in the domain of law. The supply of artificial limbs and
vocational rehabilitation have come to be considered as a normal
element of reparation — as an obligation for the State and as a
right for the disabled.
The results of this immense effort have given rise to much controversy, but on the whole the work has been a fruitful one. Hundreds of thousands of men have been able to take up a new trade.
It has now been proved that, given a sound orthopœdic treatment,
well-designed appliances and a properly organised system of
re-training, a very large number of the disabled are capable of a
productive efficiency little less than that of an able-bodied workman, if they are placed in a suitable occupation.
It is therefore natural that the question of extending the benefits
of artificial limbs and vocational rehabilitation to the disabled of
industry should have received consideration. Nevertheless, while
the schemes have been numerous, but little has been done in the
way of practical realisation.
Artificial limbs and orthopaedic appliances are usually only
granted to accident victims in so far as they assist in the cure. The
laws of the following countries provide for the supply of artificial
limbs to accident victims: Alberta, Austria, British Columbia,
Bulgaria, Chile, Denmark, Finland, Germany, Hungary, Luxemburg,
Manitoba, Netherlands, Ontario, Peru, Poland (former German
territory), Roumania, Serb-Croat-Slovene Kingdom, Sweden,
Switzerland. The texts of the laws are often indefinite as to the
nature of the appliances; it is not clear whether they provide for
the supply of a simple artificial appliance or for a more complicated and more efficient one.
With regard to the repair and renewal of appliances, only four
laws are known which contain provisions to this effect. They are
those of Germany, Poland (former German territory), Luxemburg,
and Austria. In Ontario the accident insurance institution is
bound to repair appliances during the first year.
In general it may be said that workmen's compensation legislation makes no provision for vocational rehabilitation, which is not
an essential element of compensation and constitutes neither an
obligation for the employer nor insurance institution, nor a right
for the workman who becomes the victim of an accident. Never-
-
311 —
theless in several countries progress has been made in rehabilitation as the result either of legal enactment or of the initiative of
large insurance institutions. In the following pages a short analysis
is given of the situation in Austria, Belgium, France, Germany,
Italy, the Netherlands, Spain and the United States.
Austria
The workmen's compensation law contains no provision for the
organisation of vocational rehabilitation for accident victims; nor
indeed is the matter mentioned in the rules of the insurance
institutions.
Nevertheless, the accident insurance institutions of Vienna,
Gratz and Salzburg are accustomed to send those accident victims
who require functional or vocational rehabilitation to the orthopaedic hospital attached to the Gratz Insurance Institution in
Styria.
The expenses of functional and vocational rehabilitation are
defrayed by the insurance institutions which are responsible for
the injured workmen concerned. During the process of rehabilitation the accident victims receive free hospital treatment at the
Gratz centre, but they are not entitled to any daily maintenance
allowance besides compensation which is due to them under the
workmen's compensation law.
It is estimated that the accident victims who had been
rehabilitated before the beginning of the war numbered about 800.
During the war the work of rehabilitating industrial accident
victims was held up because the hospitals, and especially the
rehabilitation centre at Gratz, had been placed at the disposal
of the military authorities for the treatment of the wounded. Since
1919 the insurance institutions have made arrangements whereby
the rehabilitation of accident victims is carried out by the same
organisation as provides for the rehabilitation of the war-disabled.
Belgium
There are two provincial institutions for vocational rehabilitation ;
the one at Brussels and the other at Charleroi. These institutions
admit both the congenital defective and those disabled by accident.
The expenses are met by subsidies from the provinces, communes,
charitable organisations, hospitals and private individuals.
France
The workmen's compensation law contains no provision for the
vocational rehabilitation of accident victims. At the same time
efforts have been made to procure its advantages for them, on the
one hand by admitting them to the rehabilitation centres set up
for the war-disabled, and on the other hand by setting up a permanent general organisation for the functional and vocational
rehabilitation of the physically defective.
An Act of 5 May 1924 provides that persons disabled in industry
may be admitted to the schools and other institutions which
furnish vocational rehabilitation for the war-disabled on condition
that they pay their own maintenance expenses. An order of 28 July
1924 has fixed the daily maintenance cost at 10 frs. so far as
rehabilitation in an ordinary school is concerned, and at 15 frs.
when the workman undergoes a special course of rehabilitation
designed for those suffering from lung diseases. Further, the law
of 5 May 1924 lays down that the results of vocational rehabilitation
may in no case be taken into consideration to justify a reduction
of the compensation which may have been awarded in virtue of the
workmen's compensation law. These measures are too recent for
it to be possible to prophecy what the attitude of accident victims
will be with regard to rehabilitation.
Germany
The Federal Social Insurance Code does not impose upon accident
insurance institutions any obligation to provide for the vocational
rehabilitation of accident victims.
Nevertheless, Article 843 of the Code, par. 3, permits the
trade associations entrusted with the organisation of accident
insurance to make arrangements to facilitate the placement of
accident victims and to incur expenditure for that purpose. In
virtue of this provision the rules of the trade associations provide,
among other measures to facilitate the placement of accident
victims, for the organisation of courses of vocational rehabilitation
and for the establishment of permanent rehabilitation schools for
certain branches of industry.
A number of schools have thus been founded by the trade
associations; they generally form special sections of the great
surgical and orthopaedic centres and of the laboratories for functional
re-adaptation, which belong to the trade associations. The
reports on the operation of the special rehabilitation sections are
printed in the general reports on the operations of the surgical and
orthopœdic hospitals, and do not give any indication of the methods
followed or of the results obtained.
— 313 —
After the war the trade associations for accident insurance have
developed still further their activities in the domain of vocational
rehabilitation.
The Federal Law of 5 April 1920, on the compulsory employment
of the severely injured in private undertakings and in public
services, which requires each undertaking and each public service
to include on its staff a certain percentage of disabled (generally
2 per cent.), applies equally to accident victims and to the wardisabled. In order to enable accident victims to take advantage
of the situations with which they were thus provided, it was necessary that they should undergo a better system of rehabilitation.
Consequently, at the beginning of 1922 the trade accident insurance
associations came to an agreement with the regional offices for
the assistance of the war-disabled. By the terms of this arrangement the regional offices for the assistance of the war-disabled are
to undertake to provide, when required by the trade associations,
the vocational rehabilitation of accident victims. With the object
of reducing expenses and effecting a concentration of effort, the
above mentioned agreement provides that, wherever there exist in
the same locality two institutions belonging one to a trade association and the other to a regional office for the assistance of the wardisabled, these two institutions must be placed under one management. This provision secures the maintenance on a permanent
basis of the sections for vocational rehabilitation which had been
set up before the war in the large industrial centres by the trade
associations.
Italy
The Italian workmen's compensation law which institutes compulsory accident insurance for employers makes no provision for
vocational rehabilitation.
Nevertheless, the most important Italian insurance organisation,
which is the National Fund for Industrial Accident Insurance,
decided at the end of 1921 to bear the cost of providing artificial
limbs for the victims of accidents. With this object the Fund
arranged with the Institute of Physical and Vocational Rehabilitation at Pescia, which is under the management of the Red Cross,
to receive into its hospital accident victims who might be sent
to it by the Fund and to give them full maintenance, provide them
with medical and surgical treatment, and any artificial limbs or
appliances which might be necessary, and direct their apprenticeship in a new trade.
— 314 —
Netherlands
Article 25 of the Act of 2 May 1921 provides that, if the management of the State Insurance Bank is of opinion that the working
capacity of an injured person to whom a pension has been granted
provisionally or finally can be increased by re-training, the
said management shall be empowered to give the injured person
such training at the expense of the Bank, on his application.
The application for training, which is often due to the advice
of the supervising physicians of the State Insurance Bank, is
examined by a specialist in re-training, whose report is considered
by a committee of three members, of whom one is a consulting
doctor to the Bank; this committee decides whether the application shall be accepted, and under what conditions the re-training
should be organised.
Vocational re-training is carried on in private undertakings and
in technical schools: no special institutions have been set up.
During the period of training, the injured workman receives
the same compensation as if he were totally incapacitated. When
the training, is completed, the rate of his pension is reviewed so as
to correspond with his actual earning capacity.
Spain
The law of 10 January 1922 on industrial accidents provides
that the victims of industrial accidents may demand a course of
vocational rehabilitation, and that the Ministry of Labour shall
organise a special rehabilitation service for those who are disabled
in industry, its function being to restore the earning capacity of the
latter to such an extent as to enable them to provide for their
own maintenance (Article 23).
By a Royal Decree of 4 March 1922, a national institute for
vocational rehabilitation was created. This institute is an official
body under independent management, but subject to the supervision of the Minister of Labour, Commerce and Industry. Its
headquarters are in Madrid. It has the power to set up branches
in the provinces.
The institute is administered by a board consisting of a president
and six members appointed by the King, the Under-Secretary of
the Minister of Labour, Commerce and Industry, the DirectorGeneral of Local Administration, two representatives of the
Institute of Social Reform (one employer and one workman), a
representative of the Committee for the Protection of Pensioned
— 315 —
Engineers and Workmen, and a representative of the Royal and
National Academy of Medicine.
The Institute undertakes not only the functional re-adaptation
and the vocational re-training of the disabled, but also their aftercare, by setting up clinics to give free public consultations, services
for orthopœdics and prosthesis, training workshops, etc.
The expenses of the Institute are defrayed out of subsidies from
the State, the provinces, the communes, and donations from
private persons.
United States
The organisation of vocational rehabilitation had already been
begun in the United States before the war. Twelve States had
adopted legislation on this subject. Suspended on account of
industrial mobilisation during the war, the movement received
a great impulse in 1920 as the result of the passage of a federal Act,
providing substantial financial aid to States which undertook the
organisation of rehabilitation.
The Federal Law of 2 June 1920 is intended to promote the
vocational rehabilitation of persons who, by reason of a physical
defect or infirmity, whether congenital or acquired by accident,
injury or disease, is, or may become, totally or partially incapable
of remunerative work. The total amount of the federal subsidies
was fixed at $ 750,000 for 1921, and $ 1,000,000 for each of the
following years. The subsidies are allotted to the States in proportion to their population, and cannot in any case be less than
§5,000. The actual organisation of rehabilitation is left in the
hands of each State which, in order to obtain a subsidy, must
adopt legislation for the purpose.
At the end of 1923 the following 36 States had adopted measures
to give legislative effect to the objects of the federal law:
Alabama
Arizona
Arkansas
California
Georgia
Idaho
Illinois
Indiana
Iowa
Kentucky
Louisiana
Maine
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oregon
Pennsylvania
Rhode Island
South Dakota
Tennessee
Utah
Virginia
West Virginia
Wisconsin
Wyoming
— 316 —
An examination of the situation in these few countries shows
that the organisation for providing artificial limbs and vocational
rehabilitation is still in its infancy. The slowness of its development is to be explained by the difficulty of reconciling the opposing
interests, of making an equitable distribution of the cost, and of
setting up a sound organisation.
The cost of artificial limbs and appliances is generally rather
high; vocational re-training, which may last from six months to
two years, entails considerable expenditure both for the maintenance of the workman and for his instruction.
The expenses might be charged either to the workman or else
to the employer or the insurance institution.
The injured workman, whose allowance or pension represents
only a portion of the wages he has lost, is often in a situation of
stringency, which renders it improbable that he will apply for a
course of re-training during which he will receive no remuneration.
Vocational re-training and the supply of artificial limbs and
appliances may be considered as a regular element of compensation,
that is to say, as a right for the workman and a liability for the
employer. In that case, however, the employer or insurance
institution, who bears the cost of a process designed to lessen the
damage, will be entitled to require that the result of re-training
and the fitting of an artificial limb should be taken into account
in determining the degree of incapacity and in finally deciding
the amount of the lump sum or pension. A serious objection to
this system is that it leaves the settlement of the workman's rights
in suspense, sometimes for several years; moreover, there is the
danger that it may arouse the suspicion of the workers in general
towards these new modes of compensation. Accident victims very
often find the immediate award of a high pension more attractive
than a permanent increase in their earning capacity. They hesitate
to accept an artificial limb or re-training, which appear to them
as means of reducing their money compensation. Such in fact
was the attitude assumed by the war-disabled, who showed themselves to be opposed to re-training, although it was entirely free,
until the repeated assurances of the authorities and explicit provisions in the law guaranteed that the pensions would not be affected.
The technical problem is equally important and is not less difficult
than the financial problem, with which, indeed, it is closely connected. The supply and periodical renewal of artificial limbs and
appliances and the organisation of vocational rehabilitation require
a permanent organisation and the constant collaboration of doctors
— 317 —
and technical specialists, whether for the choice of the best types
of appliances for each,kind of mutilation, for the supervision of the
manufacture of appliances, for the maintenance and repair thereof,
for the vocational guidance of the disabled and the supervision
and management of their apprenticeship, or finally for finding
them employment. The experience which has been acquired in
connection with the war-disabled would seem to show that the
organisation of regional centres which provide both artificial limbs
and vocational rehabilitation is the system which gives the best
technical results. One may ask, who will provide these centres ?
The problem is relatively easy to solve in countries where there
exists compulsory insurance, the organs of which are national
institutions or huge mutual associations capable of setting up the
necessary organisation.
Thus vocational re-training and the supply of artificial limbs
have been organised in Germany by the trade accident insurance
associations, in Austria and Czechoslovakia by the national insurance institutions, and in the Netherlands by the State Insurance
Bank.
The case is different in countries where insurance is optional,
where there is free choice of insurance institutions and where the
number of uninsured employers is considerable. Here there are
numerous insurance institutions having a small range of activity
and with each of whom only a small number of persons is insured.
Neither the uninsured employers nor the small insurance companies
are wealthy enough to set up institutions of a permanent character
and possessing the necessary equipment. In these countries the
only authority capable of creating a sound organisation for furnishing vocational re-training and artificial limbs seems to be the State
or independent institutions of a public character working under
the supervision of the State. Under this system the same advantages could be made available to the victims of non-industrial
accidents also, and to the congenitally defective. This plan has
actually been adopted in Spain and the United States, while in
France it is under consideration.
§ 2. — The Limits of Medical Aiá
Medical aid, if it is to be complete, should not cease until the injury
has healed and reached its final condition ; that is to say, when the
time arrives for fixing the amount of the lump sum or pension.
— 318 —
Nevertheless in a number of countries the laws impose a time
limit which medical treatment at the expense of the employer or
insurance institution must not exceed. This limit is usually fixed
at one year from the date of the accident (Argentina, Bolivia,
Brazil, Chile, Cuba, Ecuador, Salvador, Spain). The limit is two
years in Greece, three years in Peru, six months in Belgium, and 120
days in Finland.
These limits, it will be observed, vary considerably, and it would
appear that in certain countries no endeavour has been made to
fix the limit of the duration of medical aid so as to correspond with
the period necessary for the cure of severe injuries.
Having regard to the fact that the limitation of the duration
of medical aid has been introduced mainly in countries where
insurance is optional, one may conclude that the limit was designed
to protect the uninsured employer. The latter, unlike a large
insurance institution, has no supervising medical officers at his
disposal ; he would thus be liable, over a period which might extend
to several years, to have calls made upon him, the grounds for
which he could only verify by recourse to a costly investigation by
medical experts.
It must, however, be recognised that in certain cases of long
illness and serious accident the limitation of the duration of medical
treatment may impose on the accident victim an expense disproportionate to his resources and prejudice his chance of recovery.
§3. — The Organisation of Medical Aid.
The cost of medical aid falls either upon the employer, if he is
not insured, or upon an insurance company or institution to which
the employer has transferred his liability, whether voluntarily
or in accordance with a legal obligation.
The form assumed by medical aid depends in the first place on
the solution adopted for the question of the choice of doctor,
surgeon, pharmacist, and, if the case arises, hospital. The problem
of free choice of doctor has been, and continues to be, the subject
of keen discussion. The arguments for and against free choice
by the injured workman or by the employer or insurance institution
will not be dealt with here : but the procedure followed in the different
countries will be described, and an endeavour will be made to relate
it to the organisation of medical aid.
The employer or insurance institution chooses the doctor in
Argentina, Brazil, Ecuador, Peru, Salvador, Spain and Sweden.
— 319 —
Employers or insurance institutions may either set up their own
medical services, including doctors, surgeons, pharmacists, or even
hospitals, for the exclusive benefit of the workmen of any particular
undertaking or those insured by a particular institution; or they
may, without setting up a special service, enter into an arrangement
with doctors, surgeons and hospitals for the treatment of the workmen or the insured, as the case may be ; or finally, when an accident
occurs, they may merely have recourse to the doctors, surgeons and
hospitals at hand, and pay the ordinary fees.
The injured workman has free choice of doctor in Bulgaria, Chile,
Cuba, France, Greece, and Luxemburg; in Belgium he has free
choice only if the employer has not established a medical and
pharmaceutical service at his own expense and has made mention
thereof in the workshop regulations or in the contract of service.
Where free choice of doctor by the workman is permitted, there
can be, properly speaking, no medical organisation : the employer
or insurance institution is liable for the expenses, while possessing
the right to appoint a doctor for the purpose of supervising the
treatment given to the injured and rendering reports on the progress
of the case, and on the cessation or permanence of the incapacity.
Moreover, in order to limit the expenses which the employer or
insurance institution may incur, the majority of laws provide either
a legal scale of medical fees and drug prices, or else for settlement
by a judge, if a dispute arises, of a limit of expenses not to be
exceeded in the case concerned.
* The injured workman chooses the doctor from among those
approved by the insurance institution or otherwise qualified to
act in the following countries: Austria, Czechoslovakia, Germany,
Great Britain, Hungary, Netherlands, Poland, Serb-Croat-Slovene
Kingdom.
This plan is adopted especially in countries where there exists
compulsory insurance in respect both of accidents and of sickness ;
the medical aid is furnished either entirely by sickness insurance
funds, or by sickness and accident insurance institutions acting
in collaboration. In the latter case, however, if the accident
insurance institution itself undertakes the provision of medical
aid, it is generally the institution which appoints the doctor.
Medical aid is organised by the sickness insurance funds
throughout the period of treatment in Bulgaria, Denmark, Great
Britain, Hungary, Roumania, and the Serb-Croat-Slovene Kingdom.
In Bulgaria and Roumania the sickness funds recover the whole
cost of treatment from the accident insurance institution. In
— 320 —
Hungary and the Serb-Croat-Slovene Kingdom the cost of treatment is borne by the sickness fund for the first ten and four weeks
respectively, and by the accident insurance institutions from the
beginning of the eleventh and fifth week respectively. In Denmark,
the sickness fund must provide for accident victims the same treatment as for the ordinary sick, but all expense incurred on account
of special treatment or artificial limbs and appliances is met by the
accident insurance institution. In Great Britain and the Irish
Free State the whole cost of treatment is borne by the sickness
funds.
Medical aid is organised by sickness and accident insurance
institutions acting in collaboration in Austria, Czechoslovakia,
Germany, Luxemburg, and Norway. The duration of the first
period during which medical aid is organised and paid for by
the sickness funds is four weeks in Austria and Czechoslovakia, thirteen weeks in Germany and Luxemburg, and ten days
in Norway. On the expiry of the first period the accident insurance
institution may either undertake the treatment itself or continue
to utilise against payment the organisation of the sickness fund.
The participation of sickness funds in medical aid results in a
notable reduction in costs of accident insurance institutions, by
reason of the high proportion of accidents of a slight character,
which are generally cured before the termination of the first period,
and in respect of which the accident insurance institution consequently incurs no expense. This system has the unquestionable
advantage of enabling the injured workman to avail himself of the
medical service of the sickness funds, which is more widespread,
better organised, more effectively supervised, and less costly than
that which the accident insurance institutions could establish even
with the expenditure of a considerable proportion of their
resources. The plan is, however, open to the objection that it
results in the imposition upon the injured workmen, who contribute
to sickness funds, of a portion of the cost of accident compensation, which cost, in virtue of the principle of occupational risk,
should be borne by either the employer or the accident insurance
institution.
-
321 —
COMPARATIVE TABLE SHOWING PROVISIONS RELATING TO MEDICAL AID
Limits
COUNTRY
Nature ot Aid
Organisation of Aid
Maximum duration
ARGENTINA
Medical treatment, Employer appoints Not more
one year.
first aid and drugs. doctor
AUSTRALIA
Commonwealth
and States (except Western
Australia)
Workman is not
entitled to medical
aid.
Western
tralia
Aus-
First aid only.
than
Maximum cost
—
~~*
—
—
Aid is provided by
Sickness Insurance ;
at cost of Accident
Insurance after 4
weeks.
Accident
Insurance may take
over treatment at
any time, or may
continue It on termination of period
during which Sickness Insurance is
responsible. Workman has limited
choice of doctor.
Not more than 52
weeks; treatment
may be continued
by Accident Insurance, at its discretion.
Not more
one pound.
than
AUSTRIA
Medical treatment
and drugs, or hospital treatment with
reduced pecuniary
benefit.
Artificial
limbs are provided,
repaired and renewed.
BELGIUM
Medical and phar- Employer has op- Not more than six
If workman
maceutical expen- tion of organising months.
chooses doctor, exses.
penses must not exaid. If he does orceed amount fixed by
ganise it, workman
regulations and demust have recourse
pending on the nato it.
Otherwise
ture of the injury.
workman has free
choice of doctor.
BOLIVIA
Medical and hospital treatment, first
aid and drugs.
—
Not more than one
year.
—
BRAZIL
Ditto
Employer appoints
doctor.
Ditto.
—
BULGARIA
Medical treatment
and drugs, or hospital treatment
with reduced pecuniary benefit. Artificial limbs are provided.
Aid is provided by Until injury has
Sickness Insurance healed.
at cost of Accident
Insurance.
Employer provides first
aid.
CANADA
Alberta
Nature of aid is
in discretion of
Workmen's Compensation
Board.
First aid is included. Artificial limbs
may be provided.
Aid is provided by In discretion of
employer according Workmen's Comto plan approved pensation Board.
by Workmen's Compensation Board, or
is provided by the
Board itself. Cost is
defrayed by deductions from wages.
Employer provides
first aid. Doctor is
appointed by employer or Board.
In discretion of
Workmen's Compensation Board.
21
— 322 —
COMPARATIVE TABLE SHOWING PROVISIONS RELATING TO MEDICAL AID (COTlt.)
Limits
COUNTRY
N a t u r e of Aid
Organisation of Aid
Maximum duration
CANADA
(cant.)
British Columbia
Manitoba
New Brunswick
Nova Scotia
Ontario
Quebec
Saskatchewan
Yukon
Maximum cost
Medical, surgical
As long as and
Aid is provided by
and hospital t r e a t - employer according whenever required
ment, first aid and to plan a p p r o v e d b y to cure and relieve
drugs. Artificial
Workmen's
Com- effects of injury.
limbs are provided. pensation Board, or
b y Board
itself.
E m p l o y e r provides
first aid. Doctor is
appointed by employer or B o a r d .
Medical, surgical
and hospital t r e a t ment, first aid and
drugs.
Ditto
I n discretion of
Workmen's
Compensation Board.
I n discretion of
Workmen's
Compensation Board.
Medical, surgical
and hospital t r e a t ment, first aid and
drugs.
Artificial
limbs are provided
and repaired for
one year.
Ditto
Ditto
Ditto
W o r k m a n is n o t
entitled to medical
aid.
—
—
CHILE
Medical, p h a r m a ceutical,
surgical
and hospital expenses, first aid.
Artificial limbs a r e
provided.
CUBA
Medical, p h a r m a ceutical and surgical expenses, first
aid.
Not more
E m p l o y e r provides
first aid. W o r k m a n one year.
h a s free choice of
doctor.
Ditto
Ditto
—
than
If w o r k m a n
chooses doctor, expenses m u s t not exceed a m o u n t fixed b y
j u d g e and depending on n a t u r e of
injury.
Employer
is liable for hospital
expenses up to 4
pesos a d a y .
If w o r k m a n
chooses doctor, expenses m u s t not exceed a m o u n t fixed b y
judge and depending on n a t u r e of
injury.
-
323 —
COMPARATIVE TABLE SHOWING PROVISIONS RELATING TO MEDICAL AID
(cOTlt.)
Limits
COUNTRY
Nature of Aid
Organisation of Aid
Maximum duration
Maximum cost
CZECHO, SLOVAKIA
Medical treatment
and drugs, or hosp i t a l treatment
with reduced pecuniary benefit.
•Aid is provided bySickness Insurance;
at cost of Accident
Insurance after 4
weeks. Accident Insurance may take
over treatment at
any time, or may
continue it on termination of period
during which Sickness Insurance is
responsible. Workman may or may
not have limited
choice of doctor,
according to rules of
local sick fund.
DENMARK
Medical and hosIpltal
treatment
and drugs; any
special treatment
necessary to secure
the best possible
cure.
Pecuniary
benefit may be reduced according to
rules of local sick
fund during hospital treatment. Artificial limbs are
provided.
Aid is provided by
Until injury has
Sickness Insurance. healed.
Cost of special treatment is defrayed
by Accident Insurance. Workman
may or may not
have limited choice
of doctor, according to rules of local
sick fund.
ECUADOR
Medical treatment, Employer provides Not more than
first aid and drugs. first aid. Employer one year.
appoints doctor.
—
ESTHONIA
Medical and hospi- Aid is provided by Until injury has
employer or by Ac- healed.
tal treatment.
cident Insurance.
—
FINLAND
Medical treatment
and drugs or hospital treatment with
reduced pecuniary
benefit.
Artificial
limbs are provided.
—
—
FRANCE
Medical, pharma- Workman has free
choice of doctor.
ceutical, surgical
and hospital expenses, and expenses of special treatment.
Not more than 52
weeks; treatment
may be continued
by Accident Insurance at its discretion.
Not more
i20 days.
than
Until injury has
healed ; treatment
to be renewed if it
is shown to be necessary at review.
If workman
chooses doctor, expenses must not exceed amount fixed by
regulations and depending on number
of visits and operations.
— 324 —
COMPARATIVE TABLE SHOWING PROVISIONS RELATING TO MEDICAL AID
(cOflt.)
Limits
COUNTRY
Nature of Aid
Organisation of Aid
Maximum duration
GERMANY
Medical treatment
and drugs or hospital treatment with
reduced pecuniary
benefit.
Artificial
limbs are provided,
repaired and renewed.
GREAT BRITAIN
Medical treatment, Aid is provided by
first aid and drugs. Sickness Insurance.
Employer provides
first aid. Workman
has limited choice
of doctor.
GREECE
Medical treatment Workman has free Not more
and drugs.
choice of doctor.
two years.
HUNGARY
(Industry)
Medical treatment
and drugs or hospital treatment with
reduced pecuniary
benefit.
Artificial
limbs are provided.
f Agriculture)
INDIA
Aid is provided by Until injury has
Sickness Insurance healed ; treatment
for first 13 weeks. to be renewed if
Accident Insurance necessary.
may take over
treatment at any
time and must continue it from the
fourteenth
week.
Under Sickness Insurance workman
has limited choice
of doctor.
Ditto
than
Aid is provided by Until injury has
Sickness Insurance ; healed ; treatment
at cost of Accident to be renewed if
Insurance after 10 necessary.
weeks.
Not more than
10 drachmae a day.
—
Medical and surgi- Aid is provided by
cal treatment and employer for first 10
drugs, or hospital weeks. Thereafter
treatment.
by Accident Insurance.
Workman is not
entitled to medica 1
aid.
—
—
—
—
—
—
—
IRISH FREE
STATE
Ditto
—
ITALY
( Industry)
First aid only.
Employer provides
first aid. Charitable
institutions which
provide medical
treatment are subsidised from sums
payable on account
of contraventions
and of persons who
are killed and leave
no survivors.
(Agriculture)
Maximum cost
Workman is not
entitled to medical
aid.
—
— 325 —
COMPARATIVE TABLE SHOWING PROVISIONS RELATING TO MEDICAL AID
(contJ)
Limits
COUNTRY
Nature of Aid
Organisation of Aid
Maximum duration
JAPAN
(Factory Act)
(Health Insurance Act)
Medical treatment.
Employer appoints Until injury has
doctor.
healed.
Medical treatment
Aid is provided by
or hospital treat- Sickness Insurance.
ment with reduced
pecuniary benefit.
—
than
—
Medical and hospi- Aid is provided by
Until injury has
tal treatment.
employer or by Ac- healed.
cident Insurance.
—
Ditto
—
Ditto
—
LUXEMBURG
Medical and surgical treatment and
drugs or hospital
treatment with reduced pecuniary
benefit.
Artificial
limbs are provided,
repaired and renewed.
Aid is provided by
Sickness Insurance
for first 13 weeks.
Accident Insurance
may take over
treatment at any
time and must continue it from fourteenth week. Under
Sickness Insurance
workman has free
choice of doctor.
Ditto
If w o r k m a n
chooses doctor, expenses must not
exceed those which
would have been incurred on account
of treatment by
Sickness Insurance
doctor.
NETHERLANDS
( Industry)
(Agriculture)
Until injury has
Medical, surgical Aid is provided by
and hospital treat- Accident Insurance. healed.
ment, drugs, and Workman has lim(at option of work- ited choiceof doctor.
man) vocational rehabilitation. Artificial limbs are provided
NORWAY
(Industry)
Medical treatment Aid is provided by
and drugs or hospi- Sickness Insurance
tal treatment with for first 10 days.
reduced pecuniary Thereafter by Acbenefit.
cident Insurance.
PANAMA
Medical and pharmaceutical expenses.
PERU
Medical and surgical treatment, first
aid and drugs. Artificial limbs are provided.
LATVIA
LITHUANIA
—
Not more
180 days.
Maximum cost
Ditto
Until injury has
healed.
Employer is en- Not more
titled to appoint three years.
doctor; if he does
not exercise his
right, workman has
free choice.
than
—
If workman
chooses doctor, expenses must not exceed amount fixed by
regulations and depending on number
of visits and operations.
— 326 —
COMPARATIVE TABLE SHOWING PROVISIONS RELATING TO MEDICAL AID
(COM.)
Limits
COUNTRY
N a t u r e of Aid
Organisation of Aid
Maximum d u r a t i o n
POLAND
F o r m e r German
Territory
Medical t r e a t m e n t
and drugs or hospit a l t r e a t m e n t with
reduced pecuniary
benefit.
Artificial
limbs are provided,
repaired and renewed.
Aid is provided by
Sickness I n s u r a n c e
for first 13 weeks.
Accident I n s u r a n c e
may take over
treatment at any
time and must cont i n u e it from t h e
fourteenth week.
Under Sickness Insurance w o r k m a n
h a s limited choice
of doctor.
Until injury
healed.
F o r m e r Austrian
and
Russian
Territories
Medical t r e a t m e n t
and drugs, or hospital treatment with
reduced pecuniary
benefit.
Aid is provided by
Sickness I n s u r a n c e
at cost of Accident
Insurance after 4
weeks. Accident I n surance may t a k e
over t r e a t m e n t at
any time, or may
continue it on termination of period
during which Sickness I n s u r a n c e is
responsible. U n d e r
Sickness I n s u r a n c e
workman has limited choice of doctor.
N o t more t h a n 52
weeks;
treatment
m a y be continued
by Accident I n s u r ance a t its discretion.
PORTUGAL
Medical, surgical
and hospital t r e a t ment and drugs.
Aid is provided by
employer, who m a y
transfer his obligation to Sickness I n surance F u n d or
private insurance
company.
Workman has free choice
of
doctor
only
whereserious operation is concerned.
Not more
three years.
HO UM AN IA
Medical, surgical
and hospital treatment, first aid and
drugs.
Artificial
limbs are provided.
Aid is provided by
Sickness I n s u r a n c e
at cost of Accident
Insurance
Until injury
healed.
RUSSIA
Medical t r e a t m e n t .
Aid is provided by
Social I n s u r a n c e .
SALVADOR
Medical t r e a t m e n t
and drugs.
E m p l o y e r a p p o i n t s Not more
doctor.
one year. .
SERB-CROATSLOVENE
KINGDOM
Medical and surgical t r e a t m e n t and
drugs or hospital
t r e a t m e n t w i t h reduced pecuniary
benefit.
Artificial
limbs are provided.
Aid is provided by
Sickness I n s u r a n c e
a t cost of Accident
I n s u r a n c e after four
weeks.
Rules of
local workers' insurance institution
may permit workman t o have free
or limited choice
of doctor.
has
than
Expenses must
not exceed a m o u n t
fixed b y regulations,
and depending on
n u m b e r of visits
and operations.
has
—
—
U n t i l injury
healed
Maximum cost
than
has
—
— 327 —
COMPARATIVE TABLE SHOWING PROVISIONS RELATING TO MEDICAL AID
(concluded)
Limits
COUNTRY
Nature of Aid
Organisation of Aid
—
Maximum duration
Maximum cost
—
—
SOUTH AFRICA
Workman is not
entitled to medical
aid.
SPAIN
Medical and hospi- Employer appoints Not more
tal treatment, first doctor.
one year.
aid and drugs.
SWEDEN
Medical treatment,
first aid and drugs
or hospital treatment with reduced
pecuniary benefit.
Artificial limbs are
provided.
SWITZERLAND
URUGUAY
Ditto
Medical and pharmaceutical expenses.
Artificial limbs are
provided.
than
Aid is provided by Until injury has
employer for first healed.
35 days. Thereafter
by Accident Insurance.
Aid is provided by
Accident Insurance.
Workman has limited choice of doctor.
Ditto
Ditto
—
PART IV
GUARANTEES
CHAPTER I
Introductory Remarks
The various forms of legislation under which occupational risks
are recognised and fixed compensation for industrial accidents are
established, have not as a rule treated the claims of the injured
party or of the other parties concerned as ordinary debts subject,
so far as concerns the relations of creditor and debtor, to the rules
of common law. A debt contracted towards the beneficiary of
any form of compensation is of a very special character. On the
one hand, the sum to which the worker is entitled is as urgently
needed by the latter as his wages, of which, from one point of view,
it may be regarded as an extension or substitute, and this sum
should be considered as an integral part of the remuneration owing
to him. On the other hand, the very cause of such claim places it
among those the actual settlement of which directly concerns
society. Such being the case, the laws governing industrial
accidents would be incomplete if they did not contain provisions
designed to ensure the injured parties or their survivors the
regular payment of the compensation laid down. The measures
laid down and the organisations established for this purpose, taken
as a whole, constitute the system of guarantees peculiar to each
form of legislation.
In the case of any risk, the occurrence of which involves payment
of a fixed sum, the party who may become liable may, and generally
does, insure himself against such risk. To make this optional
procedure compulsory for industrial accidents, and at the same
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time to organise insurance administratively, in such a way that
the insurance establishment shall always be able to pay the compensation due, would appear to be the most complete, most efficacious and most equitable system of guarantees.
The compulsory insurance of workmen by the employer brings
all those insured under definite and uniform regulations: it minimises disputes and procedure; it automatically guarantees the payment of compensation; it makes the industry of a country as a
whole contribute towards payment of damages for accidents, thus
establishing between employers, to the advantage of their workmen
a solidarity which is of great social value. Moreover, whether the
management of the insurance is entrusted to private companies from
among which the employer is free to choose his insurer, whether it
consists of several groups which share the monopoly of insurance,
or whether it depends exclusively on a central organisation, compulsory insurance gives, or should give, to the administration the
means of controlling the fixing of tariffs and the investment of
funds directly and in detail, in such a way that the charges imposed
upon industry and hence on the whole body of consumers, by the
recognition of occupational risks, shall be as light as possible and
shall be distributed as fairly as possible.
In a large number of countries, however, these advantages have
not been regarded as of paramount importance, and compulsory
insurance has not been instituted, either because it was considered
useless in view of the widespread practice of insurance and the
rarity of bankruptcy among employers, or because it was regarded
as an infringement of the liberty of the individual and a violation
of the theoretical right of every employer to cover his own risks —
although such risks at the same time involve risks to his employees —
or, again, because it was feared that the interference of the State in
this domain might create dangerous confusion between the administration of public finance and the financial administration of the
insurance. In countries, however, where insurance is not compulsory, it has always been assumed by the legislator that the
majority of employers would insure against the fresh risk, and
special measures have been taken to facilitate insurance and to see
that employers who insured should be free from the responsibility
incurred by uninsured employers. Generally speaking, it may be
said that the systems of guarantees instituted under legislation
by which insurance is optional would render the action of the laws
governing compensation irregular and unduly burdensome, if in
actual fact the majority of employers were not insured.
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Failing compulsory insurance, the problem is how to guarantee
the claims of a workman.who suffers as the result of an occupational
accident, or the claims of the dependants.
One method of procedure would be to make such claim a secured
debt, the privilege coming into play in the case of the liquidation
of the debtor's assets as the result of bankruptcy or any other
cause. It is obvious, however, that legislation which confines
itself to guarantees of this nature may prove ineffective and can
hardly be regarded as affording adequate security. The secured
debt is on an equal footing with other secured debts when it
comes to the division of assets, the sum of which may prove
inadequate for the payment of all the creditors. In the case of
insurance, however, such guarantees assume a different character,
for the secured debt is a charge on the reserves and caution
money provided by the insurance institution and the existence
of such reserves and caution money is generally proved either
by administrative control or by the actual fact of deposit, while
their sum, whether calculated directly or indirectly, bears a definite
relation to the liabilities contracted by the insurer.
Another system is to establish a legal mortgage on the whole
or part of the property of the debtor. The constitution of the
security is thus coincident with the creation of the claim, is proportionate to such claim and cannot be diverted to other uses.
The estates of the debtor must, however, be such as to admit of
the constitution of such security. Moreover, there would still be
the possibility of conflict between mortgages with equal claims.
The most important point, however, is that, as fixed compensation
for industrial accidents in every case automatically involves
the financial responsibility of the employer, the establishment of
such mortgages would impose a heavy burden on the industry of
the whole country, would have an adverse effect upon the mobility
of capital and seriously prejudice the credit of industrialists.
Thus, except in very special cases, no legislation has made use of
this machinery, which would be without drawbacks, from the
point of view of industry, only if compensation for accidents were
governed by common law with indefinite, though at the same time
exceptional, responsibility as regards the employer.
Given that legal mortgages are to be excluded, and if provision
is to be made besides making the compensation of the beneficiary
a first charge, there remains only one method of guaranteeing that
the workman shall recover his claim. This method consists, in
the event of failure on the part of the debtor for any cause what-
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soever, of substituting for the latter another debtor, who, by
definition, shall always be solvent, and can be none other than the
State. Under a certain number of forms of legislation providing
for optional assurance, it has been laid down that the workman
whose claim is unsatisfied shall obtain compensation from a special
guarantee fund administered by a state organisation and maintained
by means of taxes levied directly or indirectly on the whole body
of employers or a certain part of such. This fund, which constitutes
a public fund for insurance against the insolvency of the employers
(or, it may be, of the insurers) can claim against the debtor who
fails to execute his obligations. But in any case the beneficiary
entitled to compensation receives the sum due to him and receives
it, moreover, as the result of procedure far simpler and within a
period far shorter than if he himself had had to sue the debtor.
In the interests alike of the insured employers and the workman,
and, should such exist, of the guarantee fund, the administration
of insurance against industrial accidents has not been handed
over by law to private initiative without control or supervision.
Under the various forms of legislation, certain formalities as regards
constitution have in the first place been imposed on all companies
and.employers' associations wishing to undertake insurance against
occupational accidents. Such formalities may range from mere
registration to administrative authorisation. The first guarantee
required, as a rule, as proof of the solvency of the insurer, is the
deposit of a security. Moreover, the laws in question lay down
certain regulations for the drafting of the insurance contract and
almost always stipulate that no nullity clause can be adduced
against the workman by the insurer, subject to the right of the
latter to claim against the employer whose policy has lapsed.
Finally, in varying forms and degrees, the laws in question have
settled the amount and regulated the investment of the reserves
to be established by the insurance organisations for the purpose
of meeting their obligations. Provisions of the same character are
also found in the compulsory insurance laws, which allow the
employer to select his insurer from among private companies.
The various systems of guarantees may therefore be classified aa
follows :
I.
Laws under which insurance is optional.
(1) Optional insurance without special guarantee fund (compensation laws only): Australia (New South Wales, Tasmania,)
Brazil, Canada, (Quebec, Saskatchewan, Yukon), Ecuador, Great
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Britain, India, Japan, Lithuania, Newfoundland, New Zealand,
Panama, Peru, Salvador, South Africa, Uruguay.
(2) Optional insurance with special guarantee fund (laws
providing compensation and guarantees properly so-called) : Argentina, Belgium, Bolivia, France, Spain.
II. Compulsory insurance laws (laws providing compensation
and insurance).
(1) Compulsory insurance with free choice of insurer: Australia
(Victoria, South Australia, Western Australia), Chile, Cuba,
Denmark, Finland, Italy (industrial accidents), Netherlands,
Portugal, Sweden.
(2) Compulsory insurance with specified insurer.
(a) The insurance is administered by one or more employers'
associations: Germany, Austria, Esthonia, Czechoslovakia,
Hungary, Japan (new legislation), Kingdom of the Serbs,
Croats and Slovenes, Latvia, Luxemburg, Poland, Roumania.
(¿>) The insurer is a central organisation, not an occupational
body: Australia (Queensland), Bulgaria, Canada (Alberta,
British Columbia, Manitoba, New Brunswick, Nova Scotia,
Ontario), Italy (agricultural accidents and accidents to
persons employed by the central or local government),
Norway, Russia, Switzerland).
There can be no question of analysing here, severally, and in
detail, the various forms of national legislation exemplified in the
five categories just defined above. Nor is it possible, owing to the
danger of giving merely a confused and inadequate account, to
confine discussion to a rapid summary of their chief provisions.
It has been found necessary to employ a mixed method, which,
it must be admitted, is somewhat artificial in character. It was
thought preferable to give a substantially complete idea of the
working of each type of guarantee system, rather than a rapid
and superficial survey of all these systems. It is proposed, therefore, to study in detail in each of the above-named categories, a
form of legislation which will be regarded as a type. Each of these
descriptions will be followed by a brief analysis, indicating the
essential points in regard to which other forms of legislation belonging to the same category are appreciably different from the
one described. The particular type in question has, needless to
say, not been selected on account of any superiority which it was
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held to offer, or because it constituted a more complete or more
systematic example of the category to which it belongs, or because
it had served more or less as a model for the other forms of legislation.
In actual fact, each form of legislation has its peculiar characteristics, is the oatcome of special tendencies, is meant to meet definite
requirements, and calls for separate study. Such being the case,
any one of the laws might have been the term of comparison
selected, and similar forms of legislation could have been referred
to it.
In view of the fact that insurance plays an essential part in all
guarantee systems, it is essential before proceeding to this comprehensive study, to describe the characteristics common to
organisations for insurance against industrial accidents, irrespective of the legislative system by which they are governed, and
those characteristics which, although determined by such legislative
system, can be more easily comprehended if viewed synoptically.
CHAPTER II
GENERAL NOTIONS OF INDUSTRIAL ACCIDENT INSURANCE
§ 1. — The Nature of Industrial Accident Insurance
It would seem at first sight simple to define the objects of industrial accident insurance. Chief of these would appear to be to
furnish, in all cases covered by the insurance, benefits legally due
to the victims of accidents or their survivors. Further consideration of the question, however, will serve to show its complexity.
On the one hand, compensation legislation founded on the notion
of occupational risk by its very nature indicates the employer as a
person pecuniarily responsible for compensation. From this point
of view industrial accident insurance is a special form of liability
insurance for the benefit of third parties. The head of an undertaking covers himself against the risk of having to pay compensation in the event of an accident and he, and he alone, appears in
the character of an insured person.
On the other hand, it can at once be seen that a liability of this
kind is not comparable to that type of liability which arises in
other circumstances. In other forms of liability insurance the third
party who may possibly have to be compensated is at the outset
entirely unknown, as also are the sums which such third party
may be entitled to claim. In industrial accident insurance, on the
contrary, it is known in advance that the third party who may
eventually benefit belongs to a certain class, i.e. the workers or
employees of the insured undertaking, and further, the fixed
scales of payment laid down by the law make it possible in each
case to know in advance to what extent the debtor is involved
financially.
The consequences of this state of affairs are important. Once
the accident occurs, not only is the insured head of the undertaking
no more than an intermediary, being, as he is, a debtor in his
relations to the worker and a creditor of the insurance undertaking ;
but, further, before the accident occurs, the fact that it is known in
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advance that the possible creditor is to be found among the workers
in any undertaking, virtually confers rights on such workers and
they appear from the beginning as parties directly interested de
facto in the insurance contract. If, therefore, they are directly
interested de facto, why should they not be so de jure ? Such considerations serve to explain why in some forms of legislation under
which insurance is optional the law lays down the principle of complete substitution of the insurer for the insured head of the undertaking, in relation to the victim of the industrial accident. But
they chiefly serve to show why the legal regulation of industrial
accident insurance is not in general the same as that of other forms
of liability insurance. The personality of the head of the undertaking tends more and more to disappear from the transaction and
the insurance itself tends to be run on such lines as indirectly to
relieve the employer of his liabilities and directly to guarantee the
worker the compensation provided for by legislation. From this
point of view it is not the employer but the worker who appears
in the character of the insured person and the employer comes
in merely as his substitute for the payment of premiums, such
substitution having its raison d'etre in the notion of occupational
risk.
There are, therefore, two main principles of industrial accident
insurance according as it is considered primarily as insurance of
employer or primarily as insurance of workers. The former principle dominates most optional insurance legislation. The latter is
the keynote of compulsory insurance legislation, and is most completely realised in compulsory and monopolist insurance legislation.
But in all cases, even when one principle is predominant, the other
is still felt, and it is to this fundamental duality that are due most
of the special problems raised by the administration of industrial
accident insurance.
§ 2. — Types of Industrial Accident Insurance Institutions
The institutions which undertake to manage or run the various
branches of insurance fall, it will be remembered, into certain
definite classes. The insurance may be private, that is to say,
conducted or administered by persons subject to private law, or
public, that is to say, administered by institutions or bodies subject
to public law.
Private insurance (setting aside cases — now very rare — in
which it is conducted by a single individual) may be in the form
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of a joint-stock company claiming from the insured a premium
fixed by previous contract (fixed premium) and, in return for the
profits it makes, undertaking responsibility for the payment of
indemnities, or in that of a mutual society which does not aim at
profits and in which the insurer and insured are merged in one
body. Mutual societies may be, and generally are, limited liability
companies; the members sometimes, however, undertake responsibility up to the limits of their resources. There also exist, in
between these companies with fixed premiums and mutual societies,
mixed or transitional forms; companies in which the insured
participate in the profits; mutual societies which insure persons
other than the members; mutual societies which reinsure their
risks with an insurance company. Private insurance is generally
subject, as regards some or all of its branches, to certain obligations,
the fulfilment of which is necessary if its operations are to be valid,
and to administrative supervision which varies very considerably,
as regards procedure and extent, in different countries.
If the insurance is public, it may be a State institution properly
so-called, which is administered by State officials and forms a
more or less autonomous part of the administrative organisation;
or it may be a company of private persons, to which are attributed
the functions of a public institution. Furthermore, it may in either
case compete freely with private insurance, or it may have a
monopoly or simply enjoy preferential treatment. Between private
and public insurance, and approximating more nearly now to the
one and now to the other, are various insurance funds regularly
subsidised and supervised by the State, and private autonomous
institutions to which the State grants certain privileges and on
which it imposes certain obligations.
The relations of insurer and insured in private insurance are
defined by a contract (policy). According to the country and the
branch of insurance, the contract may be free, that is to say, subject
only to the provisions of the general law governing contracts, or
it may come under special laws. There is also a contract in the
case of public insurance without monopoly. In that of compulsory
insurance with monopoly, there is naturally no contract. The
relations of insurer and insured are determined entirely by the law
and administrative regulations.
Industrial accident insurance institutions include the chief types
enumerated above — fixed premium companies, mutual benefit
societies, independent institutions working under State control and
sometimes with a State guarantee, and State funds.
22
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FIXED PREMIUM COMPANIES
Fixed premium companies are found in all countries where
insurance is optional and in countries where insurance is compulsory with freedom of choice of the insurer. They are for the
most part companies which were accident insurance companies
prior to the entry into force of specific compensation legislation,
and which then added a branch to deal with industrial accidents.
They are formed and administered according to the particular
system in force in each country for joint stock companies. They
are also compelled tó comply with certain rules, either as general
insurance companies or in their special capacity as industrial
accident insurance companies. In almost all cases they have to
make a deposit as a guarantee of their solvency. In most cases
this deposit, the amount of which is revised annually according to
the amount received in contributions, is returned to them only
if they cease to do business and are able to prove that they have
met all their obligations. In Belgium, in Spain, and in those
South American States where insurance is optional, as also in all
countries where insurance is compulsory with freedom of choice
of the insurer, they have to obtain the authorisation of the Government before beginning business. In Great Britain and in those
parts of the British Empire which have not established the monopoly
system, the control over them is confined to the publication of
their financial documents (e.g. balance sheets, profit and loss
accounts, etc.). In other countries where insurance is optional, or
where there is a system of compulsory insurance with freedom of
choice of the insurer, these companies are most strictly controlled.
The control is mainly concerned with the formation and disposal
of their actuarial reserves, as well as with the regularity with which
they meet their obligations to the workers who are their creditors.
EMPLOYERS' MUTUAL INSURANCE SOCIETIES
Employers' mutual insurance societies carrying on insurance
against industrial accidents exist in all countries except in those
which have introduced the monopoly system and have entrusted
such monopoly either to an independent undertaking or to a State
fund. In countries where insurance is optional or where there is
a compulsory system with freedom of choice of the insurer, they
generally constitute a form of insurance which it has been the
special object of legislation to encourage. They all have one
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characteristic in common, which is that they do not attempt to
make profits.
Such societies are of two main types according as their members
are liable only for a given sum annually, e.g. some multiple such
as twice the maximum contribution payable at the beginning of
the year, or as such members are liable without limit to the extent
of their resources. A distinction must also be made between
cases in which they are private societies working in competition
with fixed premium companies and those in which they.constitute
public corporations holding an insurance monopoly for specific
occupations or districts.
The former is the case in countries with optional insurance and
in countries with a compulsory system with freedom of choice of the
insurer. There are employers' limited liability mutual insurance
societies in Great Britain, in all parts of the British Empire where
there is no State fund, in France (Sociétés mutuelles), in Belgium
(Caisses communes), in the Netherlands and in Finland, Denmark,
Portugal and Italy (Sindacati d'assicurazione mutua per gli infortuni sul lavoro).
There are employers' unlimited liability mutual insurance societies in France (Syndicats de garantie), Spain, Portugal, Sweden and
Cuba. Both types of society are as a rule subject to the same
obligations as those imposed upon companies. Nevertheless, the
deposit which they are compelled to make is in nearly all cases
smaller than that imposed on the companies. In certain cases
it is still further reduced in proportion to the liabilities assumed
by the members. It may be even completely abolished in the
case of unlimited liability societies (e.g. the syndicats de garantie
in France).
In countries with a compulsory system which concede an insurance monopoly to employers' mutual insurance societies, such
societies are always unlimited liability societies. They may be
constituted on a local basis between employers in various occupations (e.g. Austria), or solely between employers in the same
occupation (e.g. Germany).
INDEPENDENT PUBLIC INSTITUTIONS AND STATE FUNDS
Independent public institutions enjoying special privileges, or
State funds properly so-called, are found in various countries with an
optional system and in almost all countries which have a compulsory
system with freedom of choice of the insurer; also in a certain
number of countries with a compulsory and monopolist system.
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Among countries with an optional system, France, Peru, Uruguay
and New Zealand have a State fund working in free competition
with the private companies. In this case the chief duty of the
State fund is to regulate the insurance market.
Among countries which have a compulsory system with freedom
of choice of the insurer, Italy possesses an independent privileged
institution in the Cassa nazionale. There is also a State fund in
the Netherlands and Sweden, and in the State of Victoria in
Australia. Besides regulating the insurance market, it is also the
work of these insurance undertakings to take up risks which cannot
toe insured in private business. There is no public institution of
this kind in Denmark, Portugal or Cuba. One is projected in
Finland, but has not yet been set up.
In Switzerland, which is a country with a compulsory system,
the monopoly has been granted to an independent public institution which is not a State fund (i.e. the Caisse nationale d'assurance
contre les accidents). In Norway and Bulgaria, and also in those
Provinces of Canada which have instituted compulsory insurance,
the insuring undertaking is a State institution which, over and
above its insurance functions properly so-called, usually possesses
wide administrative and judicial functions.
§ 3. — Taking the Risk and Self-Insurance
These two expressions occur frequently in legislation and yet
more frequently in theoretical discussions of insurance. It will
be necessary to define their meaning as used in the following
pages, and to give some explanation of their practical working.
Taking the risk means no more than not to have recourse
to an insurance undertaking, but to meet the various expenses
consequent upon an accident as they fall due and from one's own
resources.
Self-insurance also means not to have recourse to any insurance
undertaking, but it consists also — to confine the definition to the
case of industrial accidents — in having at one's disposal as large
an undertaking as will be able of itself to fulfil the conditions of
sound insurance, i.e. in the first place, comparative regularity in
the annual frequency and in the cost of accidents, and secondly,
the regular payment into a fund, which is financially separate from
the resources of the undertaking itself, of a sum representing the
annual cost of the risk. Thus, if there is no compulsion to insure,
everyone may, if he prefers, take his own risk, but it is not everyone who can be a self-insurer.
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In the legislation of certain countries where insurance is compulsory, e.g. in the Netherlands, Sweden and Portugal, the law
as an exceptional measure authorises heads of undertakings who
give definite guarantees, to take their own risk. In many cases
a condition of this authorisation is the perfecting of the preventive
measures adopted by employers. In the legislation of other
countries with a compulsory system, e.g. in Italy, in the case of
industrial accidents, the employer is not allowed to take his own
risk but, if he employs a sufficient number of workers, he may set
up an independent insurance fund for his own undertaking (private
fund).
§ 4. — Financial Systems of Industrial Accident Insurance
Any insurance rests on the mutual compensation as between
the insured which is effected by the insurer; in other words, the
insurance fund, on the one hand, constitutes an independent
financial entity, and the insurer, on the other hand, in principle
balances his expenditure simply and solely by means of the payments effected by or on behalf of the insured. It is the contribution
or premium thus collected in respect of each insured person which
enables the insurer to compensate those who have incurred loss.
Hence, even when he aims at commercial profit, the insurer acts
as administrator of an organisation for mutual compensation, since
the basis of the organisation is the de jure or de facto solidarity,
usually limited, however, of all the insured. It is this solidarity
which distinguishes insurance, as a provident instrument, from
private thrift, and confers upon it as a guarantee of security a far
greater value than that of thrift.
The chief financial systems of organising the mutual compensation which is the characteristic feature of insurance may now be
briefly surveyed.
DISTRIBUTION SYSTEMS
Under a system of distribution, the insurer divides the expenses
during the financial period among all the insured, in accordance
with certain rules determined by the risk covered and stipulating
the payment by each insured person of a contribution proportionate to the sum which there was a risk he might cost the insurer 1.
1
The reader should beware of the ambiguity inherent in the term "distribution". It is obvious that under any system of insurance the charges must,
in the end, be divided among those insured. It is customary, however, in
practice to reserve this word for cases in which the distribution is made each
financial period and in accordance with the actual results of such period.
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The operations of each financial period are thus quite independent,
from the point of view of finance. The sums contributed by
the insured are allocated directly they are paid into the insurance
fund. There is therefore no need for capitalisation, and the working
of the insurance is independent of fluctuations in the rate of interest.
Further, despite the fact that the chances of accidents occurring
and the probable cost must still be estimated (since the estimate
serves to determine the contribution due in respect of each person
insured), even a serious mistake in such estimates would not, in
any case, affect the financial stability of the institution. At the
worst, the operation of the insurance might fail to be equitable,
but it would not cease. The administration is of the simplest; the
responsibility of the manager is reduced to a minimum, and theoretically, at all events, no deficit is possible.
Systems of distribution are at the basis of the working of mutual
insurance societies. As a general rule, a provisional contribution
is required at the beginning of the financial period. It may be
increased or reduced according to the financial results of the period.
It rarely happens, however, that the method of distribution is
exclusively applied. In the absence of any corrective it presents
a serious disadvantage to which attention has frequently been
drawn: the person insured does not know exactly, when he insures,
what his obligations will be, as his contribution may vary very
considerably from one year to another. Moreover, the guarantee
offered to persons to whom the insurance owes pensions rests
simply and solely upon the future solvency of the members. In
fact, it may be said that while every person insured, by the fact
of insuring, is making provision for future contingencies, the insurance institution itself is deliberately improvident in its method
of procedure.
Thus, in practice, methods of distribution are more or less modified by provisions which bring them more nearly into line with
other systems of insurance. The most usual procedure is to establish a reserve fund. A supplementary contribution is levied and
paid into this reserve, from which sums are drawn during particularly bad years in order to obviate the necessity of unduly increasing the annual contributions.
FIXED PREMIUM SYSTEMS
Annual Premium Systems and Capitalisation Systems
These systems aim at establishing a fixed contribution or premium, calculated by dividing in advance between the persons
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insured the probable costs of one or more financial periods. Such
contribution, once it is determined, can neither be increased nor
reduced, whence the name of "fixed premium" systems. The insurance institution is alone responsible, within the limits of its
solvency, for the payment of compensation, and makes good
deficits or appropriates profits, as the case may be. The premium
thus determined on the assumption that the estimates of the insurer
will exactly correspond with the facts, irrespective of additional
expenses, constitutes the net premium. Obviously, the premium
submitted by the insurer to his clients, the gross premium, is made
up of the net premium together with a certain sum or loading
intended as a margin to cover possible mistakes in the estimates,
and the costs of management, and if need be of commission charges,
and to yield a profit.
Annual Premium Systems
If the calculations are based upon estimates relating simply to
the coming financial year or to a series of years regarded as financially independent, the annual premiums are fixed accordingly, in
such a way that the sum of them exactly corresponds, without
balance or deficit, to the probable costs of the year in question.
This is the annual premium system. Should the estimates of the
insurer prove correct in practice, this system would be identical,
so far as results are concerned, with the system of distribution:
Capitalisation Systems
On the other hand, whenever calculations are made in accordance with estimates covering several financial periods regarded as
one single period, either with a view to the equal division of charges
between the several successive years, or for the purpose of concentrating on one single year or on a small number of years the
probable charges for the whole period, there is necessarily, at all
events, during a certain period of the duration of the contracts,
a definite portion of the premiums collected which is not designed
to meet the probable expenditure for the corresponding year. This
portion, which is held in reserve and capitalised at a fixed rate,
forms, together with all other similar sums, a fund from which
the insurer will draw fixed amounts in order, when occasion arises,
to meet expenses which he proposes to cover by this means. In
such cases, the fixed premium systems are to be considered as
capitalisation systems.
It has been shown that, as a general rule, reserves are also established under distribution systems, and there is nothing to prevent
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the capitalisation of the whole or part of such reserves during a
certain period. The same applies to annual premium systems.
Conversely, under capitalisation systems and also under annual
premium systems, should the insurer find that any one financial
period or series of financial periods yields results appreciably
inferior to those upon which he had relied, he will "distribute" the
losses experienced by raising his scale of premiums for this specific
purpose (irrespective of the increase which past experience has
shown to be necessary for the balancing of accounts in future
years), whenever old contracts permit of it and whenever hè concludes fresh contracts. Thus the distinction drawn between capitalisation systems and others does not imply in the one case that
there is no capitalisation whatsoever, or in the other, that the
actual financial results are not distributed. Under capitalisation
systems, however, the placing in reserve of definite sums, which
increase according to a fixed rate of interest, is a regular and essential element of the financial mechanism, whereas distribution is a
subsidiary provision which may possibly be applied, but simply
in order to cover exceptional cases. The converse applies in distribution systems and in annual premium systems, while it should be
noted, further, that in such cases the fixing of the rate of interest
is not an essential element governing the working of the reserve
fund. For the same transactions, capitalisation systems will allocate large reserves, in accordance with definite rules, while other
systems will set aside, as may be convenient, sums which are as a
rule much smaller.
The system of annual premiums is the one mostly employed by
fire and accident insurance companies and in general by companies
insuring against all risks which, for any fixed value insured, are
practically constant from year to year. The capitalisation system
is to be found in its most complete form in life insurance. It is
practically inevitable that it should be used whenever the insurance
contract extends over a long period and covers a risk which varies
from year to year.
SYSTEMS OF DISTRIBUTION OF CAPITAL
When the compensation paid by the insurer is in the form of a
pension, a mixed system is sometimes used which has certain
features in common with the distribution system and others with
capitalisation properly so-called. It consists in entering the capital
representing the pension once and for all on the debit side of the
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balance sheet for the financial year in which the payment of the
pension begins, instead of including the annual amount as it falls
due each year in the expenditure for that year. In other words,
the financial year in which the pension first becomes due bears
the whole burden represented by such pension, instead of the
balance being carried forward to subsequent years. This system
is known as the distribution of capital, or the cover system.
This modification of the system of distribution pure and simple,
or the system of the distribution of annual compensation, makes
it necessary for the insurer, in order to fix the charges for the
financial year, to estimate the probable duration of the pension
to be paid and to assess the probable rate of interest in future
years. Moreover, it necessitates the accumulation of capital, the
administration of which devolves upon the insurance institution 1.
1
The capitalised value of a life annuity (not to be confused with the capital
needed to constitute a permanent annuity) may be regarded as a single premium
for a given life insurance policy, i.e. paid in a single sum when the policy is
taken out. It is calculated on the fixed premium system with capitalisation.
To take an imaginary case of 1,000 persons of 40 years of age, exposed to
the same risks, the insurer undertaking to pay the survivors among them at
the end of ten years the sum of 1,000 francs each. If the mortality table adopted
leads to an estimate of 900 survivors at the end of ten years, the sum to be
paid to the insurer when the policies are taken out should, if he is to fulfil
his obligations, be 900 times the present worth of 1,000 francs payable in ten
years, i.e. 900 times the sum which invested with compound interest at the
rate fixed for capitalisation will be 1,000 francs at the end of ten years. The
single premium corresponding to the deferred capital is therefore for each
insured person
900 x present worth of 1,000 francs payable in ten years
1,000
Accordingly, the capitalised value of a life annuity of 1,000 francs for a
person of 40 years of age is simply the sum of the single premiums for a capital
of 1,000 francs deferred for 1 year, 2 years, 3 years etc. until the last year in
which by the mortality table there will be survivors.
Thus for any given annuity, the capitalised value will depend on the age
at which the annuity is purchased, the mortality table used and the rate of
interest selected. The younger the annuitant, the lower the mortality rate,
and the lower the rate of interest, the higher will be the capitalised value.
With this method of calculation the operation is without financial importance
unless the insurance fund paying the pensions enters into a sufficient number
of contracts of the same kind. In theory each individual contract must be
regarded as one of a whole group. The successive deaths of the insured persons, who have all paid the same sum at the beginning, make it possible, by
a process of balancing, to pay a uniform pension to the survivors.
It would obviously be absurd to say that for any one person of a given age
it amounts to the same thing whether he posesses the capitalised value, at
that age, of a life annuity of 1,000 francs or is guaranteed a pension of 1,000
francs as long as he lives. The two things are approximately equivalent only
for the insurer, and then only if he has to deal with a sufficient number of
pension holders.
Further, whereas by definition the capital of a permanent annuity remains
intact, the capitalised value of a life annuity, together with the interest on it;
— 346 —
The system still remains a distribution system in the sense that
it is based upon the results of a definite expenditure incurred in a
past financial year; but the amount representing such expenditure
is then placed in reserve and capitalised to ensure the payment of
the pensions. The two operations are quite distinct. It may even
happen that instead of itself holding and administering such funds
and paying pensions due, the insurance institution pays the capitalised value as required into the funds of another institution which
is henceforth responsible for the payment of the pension. Then,
so far as the insurance establishment is concerned, the system
ceases to be one of capitalisation and remains simply a system
of distribution of annual expenditure.
It would appear, at first sight, that in a system of annual fixed
premiums, there is also the choice, in the case of compensation
pensions, of two forms of procedure: the probable expenditure for
any year might be estimated on the basis either of the pensions
to be paid in the course of that year (current pensions plus
fresh pensions falling due during the course of the year), or of
the capitalised value of the fresh pensions falling due. In actual
fact, only the latter practice prevails. By the very terms of its
definition, the price of the insurance should be so fixed in advance
as to include all probable expenditure attaching to the risks covered.
is absorbed by degrees in the actual payment of pensions. If the insurer's
estimates of mortality and the rate of interest were absolutely correct, the
capitalised value of all the pensions he has to pay would be exhausted on the
very date the last annuities lapse. To return to the case of 1,000 annuitants
of 40 years of age. At that age, the capitalised value of a life annuity of 1,000
francs, taken at 4 per cent, interest, is 15,870 francs, according to the mortality
table used by French insurance companies. Thus, when the contract is concluded the 1,000 insured persons pay in all 15,870,000 francs to the insurer.
Their estimated number at the end of the year is 992, of two years 981. The
15,870,000 francs invested at 4 per cent, will be 16,504,800 in one year, from
which sum the insurer deducts 992,000 francs for the payment of pensions.
He is left with 15,512,800 francs, which at 4 per cent, interest gives 16,133,312
francs, and from this sum he deducts 981,000,000 francs for the payment of
pensions. At the beginning of the third year he is left with 16,152,312 francs,
and so on. The total sum he must have in hand at the beginning of each year
to be able to meet his obligations during that and subsequent years constitutes
the mathematical reserve for his annuity contracts on that date. It is not the
absolute property of the insurer. It figures, on the one hand, on the credit
side of his balance sheet, in the form of moneys held for the specific purpose
stated, but it should figure equally on the debit side, as it represents the present
value of his liabilities towards the annuitants. The reserve for each contract
cannot, however, be regarded as property of the annuitant which has simply
been entrusted to the insurer, since these reserves fulfil their function only
if merged in the fund constituted by similar reserves. The sum of the reserves
forms the collective guarantee of the annuitants. It is essential, moreover, if
the insurer is to balance his transactions, that he should be able to invest
these reserves for a continuous period at an annual rate of interest at least
as high as the rate taken as a basis in computing the capitalised value.
— 347 —
After these explanations the financial working of an accident
insurance institution may be described, which, leaving the details
of management and procedure out of account, may be summed
up in certain general principles.
§ 5. — Financial Working of an Industrial Accident
Insurance Institution
The basic problem is always the same. Given certain expenditure,
whether it be actual expenditure (e.g., the distribution systems
practised by mutual insurance societies and, as a general rule, by
monopolistic State funds) or merely probable expenditure (e.g. the
system of the fixed premium adopted by fixed premium companies,independent undertakings and, as a general rule, by non-monopolist
State funds), such expenditure has to be covered by means of
contributions raised in as equitable a manner as possible from
among the employers who contribute to the insurance.
DISTRIBUTION SYSTEMS
Method of Fixing Contributions
To meet expenditure in the course of a given financial period,
and to provide a working capital fund, the insuring undertaking
generally asks its members for a fixed advance on the final contribution.
Once the total expenditure of the financial period is definitely
known, the final contribution of each employer has to be fixed.
' Suppose at the outset a mutual insurance society of employers
(receiving the same compensation for similar accidents), employing
the same number of workers for the same period, on similar work,
with the same wages, and under the same technical conditions. It
is obvious that the contribution of each employer will be equal
to the expenditure divided by the number of employers.
Now, suppose that the various undertakings, while remaining
the same in other respects, differ in the number of the workers
which they employ. Since it is the worker who is exposed to the
risk, each employer's contribution will be simply proportionate to
the number of his workers.
Now introduce a further complication. In the same undertaking,
wages may vary as between one worker and another, and the hours
of work of the various workers may also be different. In the first
place, it is clear that the risk of accident increases in proportion
— 348 —
to the time during which workers are exposed to it; secondly,
according to the legislation of various countries, the allowance
paid in the event of accident is roughly proportionate to the wage.
Considering, therefore, not the wages of each worker, but the average wage per worker, it may be conceded that the total sum annually paid by each employer in wages is an approximate measure
of the risk in which he involves the insurance fund, and his contribution will therefore be proportionate to this sum.
Such is the simplest method of distribution. It is applicable in
all cases where there are a priori reasons for thinking that the insured undertakings do not differ very greatly one from another in
the risk which work in them entails. This is the method which is
best adapted to agricultural mutual insurance societies. In this
case, however, the basis of distribution is sometimes, instead of the
total amount paid in wages, the area covered by the undertaking,
or sometimes the amount paid in taxation of land values.
It is obvious that such a method is not adapted to industry,
not even to agricultural undertakings, if they are to any extent
industrialised.
To proceed as usual from the simple to the complex, suppose
that the insured undertakings can be divided into two groups, or,
as it is called, two classes of risk, within each of which it is decided
a priori that the danger is the same, while it is admitted that it
must be different as between one class and another. It is obviously
sufficient in this case to find a formula which will equitably divide
the total expenditure into two parts. Each class of risk will be
allotted the share which properly belongs to it, and then the division will take place within each class, as described above.
Here we are at once faced with a new factor, namely, the evidence
afforded by statistics. When it was arbitrarily agreed above that
all undertakings involved the fund in the same risk for the same
amount of wages paid, it was unnecessary, in order to effect the
distribution, to discover in what way accidents which occurred
were actually distributed between the undertakings in question.
Nay, more; an enquiry of this nature would have been directly
opposed to the very principle of mutual insurance. On the other
hand, in order to compare one class with another, we have to discover our factors from statistical data, and it is natural to take
as a measure of the risk involved by each class per wage unit the
total cost of accidents which occur in the class, divided by the total
amount of wages paid therein. The distribution of expenses
between the two classes must take place in proportion to the
— 349 —
number thus obtained, which is called the "co-efficient of risk"
of a class.
From this the reader will find it easy to grasp the situation in
cases where there are numerous classes of risk.
Thus the determination of the amount of the contribution depends
in practice on two distinct operations. One, which is done more
or less by a rough estimate, results in the establishment of classes
in which it is agreed that, provided the wages paid are equal,
each undertaking introduces the same risk. The other determines
from experience the relative value of the risk peculiar to each
class. In order the better to make this procedure understood, the
two operations have been completely »eparated. In practice they
always react one upon the other. On the one hand, the first division
into classes of risk cannot be made without reference to such statistical data as are available. On the other hand, once the insurance
system is working, experience will always lead to adjustments in
the constitution of the classes. Further, instead of calculating the
co-efficient of risk by taking account of accidents which happen
in a single year, it will be advantageous (if the technical conditions which determine the risk have not changed) to totalise the
results of a number of years, when the system has been in force
for a long time, and, if the original classification was accurately made,
almost constant co-efficients of risk can be finally obtained.
The correct establishment of classes of risk is subject to the following difficulty. On the one hand, the classes must be as homogeneous as possible, and for this they must not be too large. On
the other hand, if statistics are to be usable, they must refer
to a sufficient number of workers running the risk. According
as more or less importance is attached to one or the other of these
two requirements, there will be either a very small number or a
large number of classes. The first of the two methods is naturally
applied in mutual insurance societies composed of employers engaged
in similar industries. The latter is indispensable in inter-occupational mutual insurance societies.
The calculations involved are complicated, but the theoretical
considerations which underlie them remain the same, if account be
taken of the fact that, in an undertaking belonging to one single
employer, it is often necessary to take various classes of work or
departments into consideration, involving various degrees of danger.
It is only necessary to suppose a different employer at the head
of each department for the contribution of the real employer to be
the sum of the contributions of all these imaginary employers.
— 350 —
If a careful adaptation of the rules of distribution to practice
be the object desired, the above method may seem somewhat too
inelastic. While one is bound to assume that the accident risk is
equal in all undertakings of the same class, this is certainly not the
case in practice. To correct the errors which this hypothesis involves, it might perhaps be possible to take some account of the
individual characteristics of each of the undertakings in a given
class. Careful inspection of working conditions in an undertaking,
carried out by the agents of the insuring institution, will furnish
information on the measures of protection and supervision taken
by the employer, the state of machines, the arrangement of the
premises, the moral qualities of the management and of the workers,
and generally on any distinctive points which might increase or
reduce the accident risk. The result of such an enquiry will be
that each undertaking within à class will be given its individual
co-efficient, and a distribution within the class will take place in a
proportion equivalent to the co-efficient multiplied by the amount
paid out in wages by the undertaking in question. In practice,
this special co-efficient can be combined with the general co-efficient of risk of the class so as to give a single co-efficient for the
undertaking itself. The methods employed for the purpose of this
individual rating (which the Americans call "merit rating") vary
considerably between one country and another, and even, within
a country, between one insuring institution and another. The
essential rule (although it would not appear to be everywhere
followed) would seem to be not to take account of accidents which
occur in practice in a given undertaking unless such accidents can
be assigned to a regular cause attributable to the conditions under
which the undertaking is carried on.
Whatever be the method employed, the final result for the
purposes of the distribution is the establishment of a rate showing
the proportion in which, per wage unit paid, each head of an
undertaking must contribute to the expenses of the mutual insurance
society.
Method of Estimating Expenditure
The sum to be distributed is determined by the practical results
of the financial period, and the estimation of it is a simple accounting operation. The problem is, however, complicated by the
fact that the financial period can only be considered as closed when
all the expenses relating to the period and occasioned by all the
accidents which happened during the year are liquidated. Now,
because of delays in notification and general procedure, such.
— 351 —
liquidation may quite possibly not take place until some considerable time after the end of the financial period.
In cases where compensation is paid in the form of annuities
it has been seen that two different financial systems may be
employed; either the distribution of annual compensation or the
distribution of capital, which is also called the system of coyer.
In the system of distribution of annual compensation, the estimation
of expenditure needs no special explanation. In the case, however,
of the system of capitalisation, it is necessary to have a table of
mortality among the injured in order to be able, once the rate of
interest is chosen, to calculate, for each degree of invalidity, and
for each age at which a worker becomes entitled to a pension, the
capitalised value of such pension.
It is clear, from the method of calculating such capitalised
value, that if it be admitted that the mortality rate adopted is
exact, the present worth, calculated from the beginning of an
insurance system, of all contributions received under a system of
distribution of annual compensation, will be equal to the present
worth of all contributions received under a system of cover. In
both systems the total charge borne by the industry remains the
same. As will be seen, the difference between the two systems is
the manner in which the contributions are distributed in time, and
this inequality may have very important results for the employers
as well as for their creditors.
It may be well to take a~ theoretical example which is scarcely
likely to occur in practice, but which gives a good idea of the
comparative working of the two systems.
Suppose a mutual insurance society, including in a single class
of risk 100 employers paying each the same sum in wages; suppose
that in all the undertakings insured there are annually three
accidents giving rise to pensions, and that the annual amounts of
such pensions, payable at the end of the financial period, are all
equal to 800 francs and that they all last the same number of
years, say, 30 years.
Under a system of distribution of annual compensation, it would
be necessary during the first year of the insurance to distribute an
expenditure of 3 x 800 = 2,400 francs; the next year expenses
would be 6 x 800 = 4,800 francs ; the third year 9 x 800 = 7,200
francs, and so on, with an annual increase of expenditure of
2,400 francs until the thirtieth year, when the expenditure would
be 30 x 3 X 800 = 72,000 francs. For the first distribution the
contribution per employer would be 24 francs; for the second it
— 352 —
would be 48 francs, and it would rise annually by 24 francs to a
sum of 720 francs for the thirtieth distribution. From this time
on, three pension holders annually would drop out and three new
ones would come in, so that the expenses would become constant
and each employer's contribution would thenceforth remain fixed
at 720 francs.
• Take now the case of the system of the distribution of capital.
It is necessary, in the first place, to estimate the capitalised value
of the pension. According to the hypothesis chosen, there is no
necessity to calculate probabilities of decease, since it has been
assumed that the pension will last for 30 years. In this case the
capitalised value is the present worth of 30 annuities certain of 800
francs, the first being payable immediately. Assuming interest
at 4 per cent., it will be found in round figures that the capitalised
value of this annuity is 14,390 francs every year. The expenses
charged to a given financial period will remain constant at 3 X
14,390 = 43,170 francs. Every employer will, therefore, have to
pay a fixed annual contribution of 432 francs; but the insuring
undertaking will, of course, have put aside and will have to utilise
the capital which will at first regularly increase ; from the thirtieth
year onward the reserve will become constant at a little more
than 720,000 francs.
To sum up, the system of the distribution of annual compensation
involves a period of transition during which contributions increase
from year to year. At a given moment they become virtually
equal to the constant contribution under the cover system (in the
imaginary case which has been given it can be seen that this happens
at about the eighteenth year). They then exceed it and end by
becoming stabilised at a value higher than under the cover system.
The system of charging less at the outset and more in later years
is balanced in the cover system by the formation and utilisation
of the capitalised value of pensions.
When account is taken of the workers' age-distribution which
in the above example were supposed to be constant, and when some
reasonable hypothesis is formed of the probability of accidents at
various ages, a much longer transitory period is obtained for the
calculation of capitalised values. When in Germany the preliminary investigations for the Act of 1884 were being made, the
actuaries considered that this period should be about 70 years.
Since then experience has shown that the estimate must be considered as very much below the reality.
The reader is now in a position to understand the bearing of the
— 353 —
various arguments which may be brought forward in favour of
one or other of these two systems. For this purpose the best
course will be to reproduce the enumeration of such arguments
given in Mr. Gourey's Assurances contre les accidents, questions de
technique et d'organisation pratique (p. 93)1.
In favour of the distribution of annual compensation:
(1) It is easier for industry to bear the charges of insurance which are light
at the outset. Industry can thus adapt itself progressively to the new conditions.
(2) The distribution system leaves industry capital which may be indispensable to it and from which it will in any case obtain a higher return than can
be obtained by an insurance fund.
(3) The solvency of all the various industries grouped together in the practice
of mutual insurance, and solid one with another, is beyond doubt. Therefore
the security of the beneficiaries is absolute.
Against distribution :
(1) The system is one-which piles up heavy charges for the future and
increases to the same extent the difficulties which industry may have to face
as the result of unforeseeable circumstances.
(2) Distribution is based on the perhaps illusory hope that the persons
insured 2 are not likely to drop out altogether or even to be appreciably reduced
in numbers. In effect it conceives insurance as being eternal — a somewhat
Utopian conception.
(3) It is not fair, for its advantages are confined to the industries existing
at its outset. Moreover, when an undertaking drops out, it leaves the other
undertakings charges which it should have borne itself.
(4) It is oppressive, for it cannot work unless affiliation to it is compulsory 3.
In favour of capitalisation :
(1) The insurance charge is theoretically constant.
(2) The premium is equitable, being derived from the principle of equality
of engagements as between the insurer and the insured.
(3) Variation in the number of persons insured has no influence on the working of the insurance organisation.
(4) Liquidation can be undertaken at any moment without detriment to
any of the interests concerned.
Against capitalisation :
(1) It immobilises a considerable amount of capital which might be more
usefully employed in production and the withdrawal of which from production
may even threaten the existence of certain industries.
(2) The various factors for calculating the premiums are not sufficiently
known; there is, therefore, a risk of injustice until such time as experience
allows of the correction of the original calculations.
(3) The factors may vary from time to time and thus compromise the financial equilibrium of the system.
1
See also BELLOM, Les lois d'assurance ouvrière à l'étranger, Vol. II/l.
pp. 12-20; also the Collection of Reports submitted to the Brussels International
Congress on Industrial Accidents, 1897.
2
In
this case the employers.
3
If it were not so, if it had not involved the general responsibility of all
its members, the members could leave the mutual benefit society the moment
the contribution seemed to them to be getting too heavy, and the creditors
would have no guarantee.
23
— 354 —
These arguments cannot be discussed here. It should, however,.
be remembered that a system of distribution of annual compensation is only applicable in the case of a given mutual insurance
society under a system of compulsory insurance, and that private
companies in free competition amongst themselves must necessarily use the cover system.
FIXED PREMIUM SYSTEMS
The only theoretically perfect method of establishing the fixed
premium to be paid by an insured undertaking would appear to
be the following. The probability of each worker in an undertaking meeting with an accident of a given nature must be individually estimated according to statistics. Such probability must then.
be multiplied by the present worth of all the sums which will be
due to the worker as a result of such an accident, and the sum of
the products thus given must then be obtained for all accidents
of which he might be the victim.
In this way each worker's
"risk value" could be obtained. The sum of these premiums,
calculated for all workers, would give the total premium to be paid
by the employer. Even if it be admitted that these various
probabilities could be expressed in figures, the method would be
very difficult to apply in countries where the law makes the present
worth of the total amount of compensation dependent either on
the age of the worker or on the number, degree of relationship
or age of the worker's survivors. It could more easily be
employed when the method of establishing fixed premiums does
not introduce these various elements, but merely gives the worker
a capital sum directly proportionate to his wage; but even if it
were applicable, apart from the difficulty of following the case of
every worker individually and of securing the necessary information, it would still be liable to a very serious objection. Employers
would tend to give preference in the matter of engagement to
workers whose individual premium was low and, particularly in
countries where compensation varies according to family circumstances, to workers without families. For this reason it is necessary
in the matter of industrial accidents to work on an average premium
per undertaking, that is to say, a premium in the determination of
which the individual characteristics of the workers play no part.
It is assumed in this system that the individual characteristics of
the workers in all the insured undertakings automatically balance
one another.
— 355 —
The undertaking, however (or, if the system be adopted, the
"factor of the undertaking") should be considered as the unit of
insurance, and the workers appear as a collection of persons unnamed, represented only by the wages which they receive. In
these circumstances the method of calculating premiums is not
essentially different from the method employed in the fixing of
contributions under the distribution system; only, the co-efficient
for each undertaking will no longer show the proportion which it
must contribute to expenditure, but will give directly the sum
which is to be paid to the insuring undertaking per wage unit. Once
this "premium rate" is fixed, the insurer recovers periodically,
after checking the paybook which is kept by the employer, the
premium due to him on account of wages actually paid.
Between the contribution under the distribution system and the
fixed premium properly so called, there is a system which is often
used by State funds and even by certain mutual insurance societies
(e.g. the agricultural mutual insurance societies in Italy). A fixed
annual premium is established by dividing between employers the
probable expenses of the financial period to come. These expenses
are estimated either directly on the expenditure of the previous
financial period (with any changes rendered necessary by the addition of disappearance of insured- undertakings) or on a system of
probabilities based on general statistics. Once this fixed premium
is established for a financial period or for a small number of financial
periods, it cannot be modified; but if such period or periods show
a deficit, the deficit is met by a proportionate increase of the new
rate. The same method is generally used for fixing the amount
of the provisional contribution which certain mutual insurance
societies demand from their members at the beginning of the period.
If the estimates are correctly made, and if they are based upon an
adequate experience of the risk involved, this provisional contribution will be virtually equal to the final contribution under the
distribution system, and the difference may, at necessity, either
be covered by a recourse to the reserve funds or placed to the
credit of the reserve. In practice the mutual insurance system
will work as in a fixed premium undertaking.
§ 6. — Reserves
The financial working of industrial accident insurance institutions usually involves the constitution of reserve funds, the
formation and employment of which vary considerably in theory,
— 356 —
according as the institution is wo rking on a distribution system or
on a system of fixed premiums, although in practice both mutual
insurance societies and fixed pre mium companies employ the same
procedure.
DISTRIBUTION SYSTEMS .
In theory a system of distribution (of annual compensation) could
do without reserves, since the annual charges must be exactly
covered by the annual contributions of insured persons. In practice,
as regards industrial accidents, mutual insurance societies which
constitute no reserves are very rarely met with. The only
instances which can be given are probably certain employers'
mutual insurance societies in Great Britain and certain small
mutual benefit societies which re-insure practically all their risks.
Generally speaking, a reserve fund will be formed in accordance
with the statutes of the society or with legal provisions and regulations. The reserve fund is fed by means of increases in annual
contributions, until such time as it reaches a pre-determined
maximum. The general rule is that this maximum must be equal
to the average expenses of a financial period calculated on the basis
of a certain number of previous financial periods.
The uses of the reserve fund are twofold. In the first place it
will be possible to draw upon it to balance any inequality as between the expenses of one year and another, and to meet the expenditure incurred in exceptionally bad years; secondly, in relation to
third parties, it constitutes a guarantee of the solvency of the
insuring undertaking and of the regularity of its operations. It
is not, however, as a general rule, liable to be drawn upon in respect
of any first charge.
Side by side with this reserve, which is intended to meet unforeseen variations, and which may be called a contingent reserve,
systems of distribution of annual allowances may form reserves of
a special kind, intended to reduce the inequality of expenditure
which may be expected in the transition period. Such is the
practice, for example, in the German employers' associations.
Contributions in the first years being very small, they can without
inconvenience be increased considerably, for example threefold.
The surplus thus obtained forms a fund which is capitalised. In
proportion as contributions increase, the surplus contribution
provided for the reserve fund is reduced. After a certain number
of years the interest on the fund, which up to then remains intact,
is applied to a reduction of contributions, and without entering
— 357 —
into details, it will be realised that a stable system can be more
quickly reached in this way, and that when stability has been
achieved the contribution required will be smaller. In other
words, in the distribution of expenditure between successive years,
some approach is made to the conditions obtaining in the system
of capitalisation, while preserving the chief advantage of the system
of distribution of annual compensation, which is to impose
the necessary charges upon industry by degrees.
The system of capitalisation also involves contingent reserves.
Further, if the insuring undertaking itself takes over the responsibility for pensions, it must reserve and administer the capitalised
value of such pensions. This reserve is then at all points identical
with the actuarial reserves of the companies (see below). As
a general rule, however, it is specially earmarked as a first
charge for the service of pensions, and constitutes a collective
security for the creditors.
In countries where insurance is compulsory and where the monopoly of insurance is divided between several mutual insurance organisations, there is often constituted, over and above the individual
reserves of each insurance fund, a common reserve fund administered by the State. This is the case, for example, in Austria. This
common fund works sometimes as a regular re-insurance fund,
sometimes as a mere loan fund, from which a mutual insurance
society in financial distress may require an advance, to be repaid
at a time of prosperity.
FIXED PREMIUM SYSTEMS
The reserves constituted by fixed premium, companies and by
public funds working on the system of fixed premiums are of two
kinds: in the first place, there aie contingent reserves analogous
to those used in distribution systems, or reserves which the companies are obliged to constitute in their capacity as joint stock
companies; secondly, there are technical reserves necessitated by
the financial methods usual in this type of insurance.
It is unnecessary to lay stress on reserves of a non-technical nature,
although they play a most important part in regulating the insurer's
operations. It will be sufficient to point out that some of them
are constituted for the convenience of the companies themselves,
in accordance with the rules of administration which they think
it prudent to observe, and that the others are legally imposed upon
the companies. In the majority of cases the amount which they
are compelled to take from their profits to feed the reserve fund
— 358 —
is higher than that which other joint stock companies are compelled
to take.
Technical reserves are sums which the companies have at their
disposal so as to have some reasonable probability of meeting their
obligations. When there is a pensions service worked by the
company itself, such obligations are of two kinds ;—in the first place,
those connected with the expenditure which the company will
have to incur to meet the cost of accidents occurring during the
financial period; secondly, those connected with the annual
payment of pensions actually begun or still current. It is only
the former kind of obligation which is assumed by companies in
so far as they transact industrial accident insurance business.
They incur the latter only because they also undertake to
administer annual pensions, and do not incur it at all when
a pensions service is not prescribed by legislation, or, in the
contrary case, when the company assumes no responsibility for
such payments, but merely passes to another undertaking the
capitalised value of such pensions.
Obligations of the former kind are covered by reserves for
current risks. At the beginning of the financial period they must
be equal to the sum total of premiums collected for the period in
question, after deduction of that part of the premium which is
earmarked for overhead charges, commission charges, and, if
necessary, re-insurance. In practice, the sum thus obtained
represents the total value of the risks accepted by the insurer.
Obligations of the latter kind, when such exist, are covered by
reserves which are generally called "actuarial reserves." They
are equal at any moment to the total capitalised value of current
pensions. The calculation of this capital sum is made on tables
of mortality at a rate of interest imposed by the authorities. There
are special regulations for its investment, and the first charge on
it is the payment of pensions. In countries where the pension
granted to the victim of an accident is not finally fixed until after
the expiry of a certain time limit, intended to enable it to be
reviewed, it is necessary to add to the actuarial reserve, which
is calculated on the provisional pension, a reserve to guard against
the event of some increase of the pension. The amount of this
reserve, which is known as a supplementary reserve, has also to
be fixed according to official scales. It naturally lapses as soon as
the time limit expires.
Finally, between the moment when the industrial accident is
recognised as such and the moment when the claims arising out of
— 359 —
it are settled, there is naturally a certain lapse of time. During
the whole of this interval, the obligation of the insurer to the
victim of the accident undoubtedly continues to exist. Thus there
should no longer be, in the reserve for current risks, a sum balancing
this obligation; but the total to be paid is not yet fixed even
provisionally, so that there is still a factor of uncertainty. To
this special kind of obligation corresponds the reserve for unsettled
cases. This, too, is calculated on the theoretical probabilities.
But where there is a system of control, the estimate is generally
left to the insuring undertaking under the control of the authorities.
All mutual insurance societies which, at the beginning of the
financial period, collected a fixed contribution which is assumed to
be equal to the cost of the risk, must naturally also constitute a
reserve for current risks and a reserve for unsettled cases.
Every effort has been made to make as clear as possible the
definition of these fundamental technical reserves, which are found
under all sorts of titles and are often divided among several different items in the balance sheets and profit and loss accounts of
companies. This is because such reserves are one of the most
important factors in the financial administration of such companies,
both because of the part which they play and also because of the
amount of capital which constitutes them. The criterion of the
financial soundness of an insurance institution is its technical
correctness and openness in the calculation of reserves, as also
in the estimate of the securities which represent such reserves
among its assets.
It is hardly necessary, after these explanations, to put the
reader on his guard against a too common mistake of the public,
which consists in considering a reserve as something which enriches
the insurer, whereas, really the reserve is only a counterpoise to
bis obligations, and liable to be one day absorbed by his actual
expenditure.
§ 7. Peculiarities in the Administration of Industrial Accident
Insurance Institutions
SELECTION OF RISKS
At first sight all risks wo aid seem to be insurable provided that
the insured person will agree to pay the value of the risk. In
practice, however, if it involves by itself a great risk on the insurer,
even if the insured person pays the value of the risk estimated
according to probabilities, the exceptional character of the risk
— 360 —
is an obstacle to the free play of the law of compensation between
analogous risks which is the basis of all insurance operations.
It follows also from the nature of the risk that, generally speaking,
the insurer will not possess sufficient information to enable him to
calculate adequately the cost of the risk. Finally, even supposing
that he can so calculate it, he will be tempted, in most cases, to
offer the would-be insured person a price which the latter thinks
prohibitive. For all these reasons, there are what are called "bad
risks", which insurers prefer not to take up. Under a system of
free competition, therefore, insuring establishments exercise a
certain selection among the proposals made to them. If they
did not do so, they would not only fail in their duty to the insurance
undertaking considered as a commercial concern, but they would
also fail in their duty to the great majority of their insured clients.
Hence, in the case of compulsory insurance, it is necessary to provide for the insurance of such risks. If there is a monopoly, the
risks are more or less lost in the crowd of other risks. But if free
competition is maintained, either the carrier of a bad risk must,
under certain safeguards, be left to his own resources, or else a
given undertaking must be laden with the heavy burden of accepting an insurance of this nature.
Side by side with the selection of risks incurred before insurance,
must be mentioned another form of selection which is carried
out at a second stage in the proceedings by means of the cancellation of policies after an accident. While the former selection is
legitimate, the latter gives rise to the most regrettable abuses.
It is certain that the same reasons which induce the insurer to refuse
bad risks must also encourage him to get out of his. contract with
insured persons who, although they are accepted as "normal
risks" come in reality under the heading of "the outcasts of insurance". But the whole question is, by what criteria the insurer will
be guided ? In the majority of cases he yields to temptation,
and does no more than consult the individual account of the
insured person, and if he finds that the latter continues to cost him
more than he brings in, he does not hesitate to ask him to go
and insure elsewhere. It is scarcely necessary to prove that such a
procedure is utterly contrary to the principle of mutual benefit
which is the basis of all sound insurance; this is, perhaps, even more
true in the matter of industrial accidents, where two accidents,
identical as regards both their cause and their organic consequences,
cost widely different sums owing to circumstances which have no
influence on the probability of the accident itself. When there is
— 361 —
a striking deficit in the individual account of an insured person,
the insurer's duty is, in the first place, to find out whether the
deficit in question is not largely balanced by a considerable credit
balance in the accounts of other insured persons in the same
category. If the result of such an enquiry is to suggest the
possibility that, as a result of this particular insured person's
position, the general equilibrium may be upset, it is also desirable
to find out whether the accidents in question are due to a regular
cause or should be regarded as the results of persistent mischance.
In the. latter case it is naturally the insurer himself who must take
the consequences of this risk and who has, out of the premiums
which he has received, to establish reserves to meet the contingency
in question. Finally, if some systematic reason for accidents is
discovered, the insurer must request the insured person to take the
necessary steps to remove it. If the insured person refuses, or
if the situation seems beyond remedy, then, and then only, from
the technical insurance point of view, is cancellation of policy
justified.
ADMINISTRATIVE AND ACCESSORY EXPENSES
To obtain some idea of the amount required under this head
it will be sufficient to enumerate the central services and the local
agents necessary for the administration of industrial accident
insurance. At headquarters, besides the management properly
so called, the essential services are:
The actuarial department, the business of which it is to interpret
statistics, draw up rates and calculate reserves; the cash and
accounting department, the business of which is to draw up
accounts and balance sheets; in private companies, the policy
department, which centralises requests for insurance contracts
and draws up the policies (in institutions which possess a monopoly
of compulsory insurance, this department is replaced by an almost
equally important department, the business of which is also to
enquire into the liability to insurance of undertakings) ; an accident
department, the business of which is to receive statements of
accidents, to make enquiries and expert studies of a non-contentious
nature and to settle accident claims. Finally, a litigation department and a medical department.
As regards local services, whether in the case of private or public
insurance institutions, it is necessary to have inspectors and
"confidential agents" (Vertrauensmänner, as they are called in
Germany). It is these officials who supply the information neces-
— 362 —
sary to place a given undertaking in a given class of risk. It is
they also who represent the insurance undertaking on enquiries
instituted as the result of an accident.
If the business of the undertaking is carried out over a wide
expanse of territory it will also be necessary with a view to decentralisation, to establish agencies, so that insured persons may have
close at hand authorised representatives of the insurer.
The various expenses entailed by these administrative organisations are common to all industrial accident insurance institutions.
There are other expenses which are incurred only by fixed premium
companies. These are, in the first place, commission charges,
which are constituted by the remuneration granted to agents or
brokers, or even to any other person who brings in insurance
contracts. Remuneration of this kind often absorbs the whole
of the first two or three premiums. Next come charges represented
by that part of the loading of the premium which is intended to
provide for profits. Nevertheless, the heaviest burden on insurance
is undoubtedly commission charges. As regards profits, it should
not be forgotten that the share capital of a prosperous insurance
company is almost always small in comparison to its turnover.
The capital is in no sense a working capital but simply a first
share of capital, and not even a sufficient guarantee for the insured
persons. The real working capital and the real guarantee are
furnished by the insured persons themselves. The result of this
is that a small profit on the total number of premiums allows of
the declaration of dividends which represent a considerable proportion of the share capital. But it also follows that the real
guarantors of an insurance company are the insured persons
grouped together by the insurer for the purpose of mutual aid.
Side by side with the expenses occasioned by the actual conditions in which insurance is carried on should be mentioned certain
accessory charges which are by no means negligible. In very
many cases industrial accidents give rise to litigation. Where
such actions are brought before special courts, which may even be
administratively part of the insuring undertaking, when the latter
is a State fund (e.g. the Compensation Boards in certain Canadian
Provinces), or before common law courts, judicial costs and
costs of enquiries and expert evidence constitute, above
all in the latter case, a considerable proportion of the cost of
accidents. Thus, any legal provision tending to reduce the
chances of disputes or to simplify procedure, in itself lightens the
burden of insurance.
— 363 —
§ S. Social Efficiency of an Industrial Accident
Insurance Institution
The efficiency of an industrial accident insurance institution
may be defined as the relation over a given period, a year for
instance, between the value of the services rendered by the institution and the expenses falling on the employers contributing to it
(loss ratio). It is easy to express in exact figures the denominator
of this fraction. As regards the numerator, the operation is much
more difficult. In the first place, by services rendered must be
understood not only sums which actually go to workers in the
shape of pensions or allowances, or which are allocated to them
indirectly in the shape of medical or pharmaceutical assistance,
but also expenses which are to a certain degree independent of
the method on which the undertakings are administered, e.g.
judicial expenses. Further, the value of the service rendered is
not expressed solely by the sums of money devoted to it. The
manner in which the service is rendered also plays an important
part in any final estimate. A form of insurance, which seems to
be more costly, may in reality be better, because it is more careful
in its settlement of accident claims, or because it employs the
services of better qualified technical experts, or because its guarantees are safer. It is the same with insurance as with any form
of goods. If goods are offered at an unusually cheap price, the
seller must recoup himself on the quality. In countries where the
authorisation to carry on business granted to insurance companies
is subject to a previous examination of their rates, the authorities
have as often to protect the public against insufficient rates as
against excessive rates. It may even be said that the dangers
of the former are incomparably more serious than the inconvenience.
of excessive charges occasioned by the latter.
It will be seen how difficult it is to interpret correctly the proportion between money devoted to insurance benefits and money
paid in the form of premiums. If the proportion is high, this
may either point to the "efficiency" of the insurance system in
question, or equally well to an insufficient reserve or to some
exceptional mischance. If it is low, it may mean that the insurance
undertaking is constituting considerable reserves as a guarantee
of its future activities, or that it has been particularly favoured
by chance, or that it is particularly strict in its settlement of
accident claims, or finally, that it is making excessive profits.
Generally speaking, it is not sufficient to examine a single balance
— 364 —
sheet in order to decide how the case actually stands. The work
of the insuring undertaking must be followed for a long period in
order that exceptional circumstances may be eliminated, and that
account may be taken of the general spirit in which it is administered
or of the manner in which it treats employers and workers.
Closely connected with the question of social efficiency is that
of the distribution of expenses among the manufacturers. For
a given class of risks, it must be asked what is the charge per
wage unit. Then the total charge must be drawn up for the
whole industry contributing to the insurance. Further, it must
not be forgotten that in the last resort the cost of premiums falls
on the consumer, so that consideration of the final distribution
of insurance charges leads to an enquiry into the question how the
cost of insurance is included in the cost of production.
Finally, when once the insurance undertaking constitutes considerable reserves, it does not merely affect the economic life of
a country in so far as it receives premiums and pays out of the
prescribed benefits. By means of the capital at its disposal,.
in particular in the case of "actuarial reserves," it naturally
plays an important part on the money market and in all the processes of production. The question of the investment of reserves
is one of the most complex of all, particularly when it is considered
from the point of view of the universalisation of insurance, and in
the light of experience gained during the post-war crises. In
what form is the capital to be employed so that it may be productive without ceasing to be an effective guarantee of the beneficiary's
claim to benefits ? Consideration of this problem would lead us
far from the proper subject of this report. It will be sufficient
to point out that, generally speaking, the solution adopted in most
countries, which consists in imposing on most reserves an administration analagous to that of trust funds, is advantageous neither
for insurance nor for economic life as a whole. From this point
of view, it may be worth while to mention a proposal formerly
made by Mr. Louis Fontaine, at the Industrial Accidents Congress
in Paris in 1900, to unite in a single system the advantages of the
distribution of annual compensation and of the system of capitalisation, . i.e. one part of the mathematical reserves would be
reinvested, under certain guarantees, in the very industries which
paid the premiums by means of which such reserves were originally
constituted.
*
*
*
— 365 —
At this point we may conclude these explanations of the institutions which administer or carry on industrial accident insurance
and on the conditions of their work. The picture which has been
given is far from being complete. It may, nevertheless, be claimed
that it contains most of what is essential in order to allow of a
comprehension of the part played by such insurance in the various
systems of guarantee, which we will now proceed to consider
according to the plan previously laid down.
CHAPTER III
LEGISLATION
A. — VOLUNTARY INSURANCE LEGISLATION
(Groups I and II)
In legislation of this description, the guarantees vary according
to whether compensation assumes the form of periodical payments, or is settled by the payment of a lump sum. To understand
how guarantees work, we must also take into account whether
the periodical payments can be converted according to law into
the capital value they represent, or vice versa. On the other hand,
whereas in countries with a compulsory system of insurance, the
insurance institution is always, and without any possibility of
dispute, regarded as the debtor, practice varies as to how and
to what extent the insurer can substitute himself for the insured
employer in countries where insurance is voluntary. It is therefore necessary to begin by defining the person or persons regarded
by the law as responsible for the payment of compensation under
each of these various hypotheses. A study of the guarantee systems
in the various legislations of these groups will deal with the following points: (1) The nature of the obligation or claim; (2) the
personality of the debtor; (3) the guarantees or securities, both
where insurance exists and where it does not; (4) insurance institutions.
GROUP I
Voluntary Insurance Legislation without Special Security Funds
(South Africa; Australia (New South Wales, Tasmania); Brazil;
Great Britain; Canada (Quebec, Saskatchewan, Yukon Territory);
Ecuador; Greece; India; Irish Free State; Japan; Lithuania; Panama;
Peru; Salvador; Newfoundland; Uruguay; New Zealand.)
— 367 —
1. — SUMMARY OF ONE LEGISLATIVE SYSTEM:
GREAT BRITAIN
British legislation contains no provisions according to which a
person entitled to compensation in respect of industrial accidents
is guaranteed that he will, in all circumstances, actually receive
payment of the compensation due to him.
Insurance is voluntary and exclusively private; and is carried
out by insurance companies with a fixed premium system, by
Lloyds' underwriters, or by employers' mutual associations. Both
fixed premium insurance companies and Lloyds' underwriters have
to deposit a certain sum as security and to furnish the Board of
Trade with information regarding their operations; though this does
not in reality confer any right of supervision or control on that
Department. Employers' mutual associations are exempt even
from these obligations. Generally speaking, therefore, British
legislation gives employers, who are supposed to be solvent, and
insurance institutions, whose financial stability is not questioned,
a free hand.
The Obligation or Claim
In cases of death, the obligation consists in the payment of a
single lump sum 1.
In cases of incapacity, the obligation consists in the payment
of compensation in the form of weekly payments 2 . In such
cases, however, the debtor can always redeem his liability by
the payment of a single lump sum in the place of weekly payments, after the latter have been effected for at least six months.
In cases of permanent incapacity this amount must be sufficient
to purchase the beneficiary an annuity equal to at least 75 per cent.
of the annual value of the weekly payment if invested in immediate
life annuities by the National Debt Commissioners. In cases of
temporary incapacity, the amount of the lump sum is determined
by arbitration or by the Courts 3. Nevertheless, in the case of
workmen under 21 who are permanently incapacitated, commutation can only take place by agreement.
On the other hand, weekly payments must be commuted for a
single lump sum should the employer or the company by whom
the worker is employed go into bankruptcy or liquidation. The
1
3
3
Workmen's Compensation Act, 21 December 1906, Schedule ], para. 1 (a).
Ibid., Schedule I, para. 1 (b).
Ibid., Schedule I, para. 17.
— 368 —
worker's debt then becomes a preferential payment under the
conditions indicated below1.
The Debtor
The employer of a worker who is the victim of an industrial
accident is solely liable for the payment of any compensation
specified by law 2 . The Act, however, provides for certain conditions under which an employer can liberate himself from this
liability (contracting out).
If the Registrar of Friendly Societies certifies that any scheme
of compensation, benefit, or insurance, which has been established
provides scales of compensation not less favourable to workers or
their dependants than the corresponding scales in the Act ; and that,
where the scheme provides for contributions by the workers, it
confers benefits at least equivalent to those contributions, in addition to any benefits to which they would have been entitled under
the Act; and finally, if a majority of the workers (to be ascertained
by ballot) are in favour of the scheme, the employer may, whilst
the certificate is in force, contract with any of his workmen that
the provisions of the scheme shall replace those of the Act; and
thereupon the employer's liability becomes strictly limited in accordance with the scheme. The validity of any certificate issued by the
Registrar does not exceed five years. No scheme can be certified
which contains an obligation on the workers to join the scheme
as a condition of their hiring; or which does not contain provisions
enabling them to withdraw from it. The Registrar must see that
proper measures are taken to secure the payment of compensation
both while the scheme is in operation and, in respect of outstanding cases, after it has been discontinued. Employers who adopt
this method of liberating themselves from their liabilities must
furnish any information demanded by the Registrar of Friendly
Societies 3 .
It is unnecessary to consider this system in greater detail, as the
Departmental Committee appointed in 1919 to inquire into the
system of workmen's compensation states "little use is now made
of this power to contract out".
The- fact that an employer is insured does not exonerate him
from liability to compensation; he remains liable for the payment
of compensation, but in practice this obligation is transferred to
the insurer under the contract of insurance.
* Ibid., Section 5 (3).
2
Ibid., Section 1.
3
Ibid., Section 3.
— 369 —
There is one case, however, in which a direct relationship between
the insurer and the worker occurs under British legislation. Where
an employer becomes bankrupt, or makes a composition or arrangement with his creditors, or if the employer is a company, having
commenced to be wound up, or if a receiver has been appointed
on behalf of the debenture holders, the liability of the insurer does
not constitute an asset for the purposes of liquidation, and is
transferred to and vested in the workman, who thus becomes a
creditor in respect of the amount involved 1.
The employer's rights against the insurer, as far as the latter is
liable in respect of industrial accidents, are therefore transferred
to the worker and can be exercised by him.
It should also be noted that, in all cases where a policy holder
has rights under British legislation against an insurance company,
such rights can be exercised by the victims of labour accidents
employed by an insured employer : for, as the Insurance Companies
Act, 19092, laid down, in all cases "where a sum is due or a
weekly payment payable under a policy, the expression 'policy
holders' shall include the person to whom the sum is due or
the weekly payment payable".
Employers in all industries must, at the request of the Secretary
of State, supply the latter with a correct annual return specifying
the number of injuries which have occurred in their undertakings
in respect of which compensation has been paid 3.
This information has, in fact, been demanded from seven main
groups of industry: mines; quarries; railways; factories; docks;
constructional work (except building), shipping.
Security of Payment
The only provisions which can be regarded as constituting
security are: (1) The priority instituted where the person liable
for compensation becomes bankrupt or goes into liquidation;
(2) A mortgage on the reserve funds of insurance companies;
(3) Special guarantees for seamen if the debtor is resident abroad.
(1) Where an employer has insured the total amount of bis
risk, we saw above that a worker could, in the event of bankruptcy or liquidation, become a creditor in respect of the amount
insured. Where the employer has not insured the total amount
of risk, or has not insured at all, the worker becomes a creditor in
1
Ibid., Section 5 (1); Workmen's Compensation Act, 16 November 1923,
Section 19.
* Section 33 (1) (h).
• Act of 1906, Section 12 (1).
24
— 370 —
the bankruptcy or liquidation, either for the difference between the
amount of compensation due to him legally and that due to him
by the insurer, or for the total amount of compensation due. In
both cases, workers' debts are included among those which, under
the Companies (Consolidation) Act 19081, enjoy a priority over
all other debts. The claims of workers who have been victims
of industrial accidents, or their dependants, are thus placed on the
same footing as those referred to in the above sections of the Act ;
namely, taxes, and wages and salaries of workers and employees.
All such debts rank equally, and where the assets are insufficient
to meet them, creditors are paid proportionately.
(2) Insurance companies must provide special reserve funds to
meet their liabilities in respect of industrial accidents. Such fund»
constitute a guarantee or security for the creditors of the company.2.
(3) The provisions of the Workmen's Compensation Acts of
1906 and 1923 also apply to seamen.
If it is alleged that the owners of any ships found in any port
or river in England or Ireland are liable as such to pay compensation under the Act, and if none are resident in the United Kingdom, a judge of any court of record may issue an order directing
an officer of customs to detain the ship until such time as the
owners etc. have paid compensation3.
Insurance Institutions
The absence of any other guarantees is partly due to the fact
that Great Britain is a country where insurance has reached a
high state of development, and that the financial stability of
insurance undertakings is therefore regarded as unquestionable.
Industrial accidents in Great Britain are insured against by ordinary insurance companies; by Lloyds' underwriters; and by
employers' mutual associations.
1. Fixed Premium Insurance Companies.
Insurance companies dealing with industrial accidents may be
divided into two classes; the former, generally called "Tariff
Companies" which are members of the Accident Offices Association,
have settled rates by agreement. The association enjoys recognised
authority among insurance companies, and constitutes an organ
for discussing and settling all disputed questions in this branch
of insurance ; there were 48 Tariff companies in existence in 1920~
1
a
8
Sections 107 and 209.
Insurance Companies Act, 1909, Section 3 (2).
Section 20 of the Act of 1906 and Section 11 of that of 1923.
— 371 —
In addition to these, 17 "Non-Tariff Companies" existed in 1920,
which are not members of the Association and are in keen competition with the Tariff companies. The distinction, however, is merely
one of fact and involves no legal consequences: both Tariff and
Non-Tariff companies being subject to exactly the same obligations,
to be indicated below.
(a) Caution money. — All companies insuring against industrial
accidents must deposit £20,000 as "caution money", which is paid
into the "Supreme Court ac" at the Paymaster-General's. The sums
so deposited are invested by the Paymaster General in such securities as are usually accepted by the Court for investing funds placed
under its administration; these securities can be selected by the
company, which receives the interest accruing from them. The
Paymaster-General shall not accept a deposit except when authorised to do so by a Board of Trade warrant. The warrant, however,
is a mere formality, and in no way resembles the authorisation
which insurance companies in some other countries must obtain
before they are permitted to insure against industrial accidents 1.
The Act of 1909 provides for certain cases where insurance
companies need not deposit caution money; and all insurance
companies which undertook employers' liability business in the
United Kingdom before 28 August 1907 are exempted from this
obligation. On the other hand, as soon as the reserve funds for
securing this class of insured risk attain £40,000, the PaymasterGeneral is authorised to repay the company the amount deposited
in respect of employers' liability, if a deposit in connection with
other branches of insurance business has already been made 2 .
(b) Reserve funds. — All companies which insure against industrial
accidents and also undertake other insurance business, must keep
separate accounts as regards the former; and must also maintain
a special fund for this branch of insurance, constituting an absolute
security for policy holders, just as if the latter had insured with a
company only covering industrial accident risks. No liabilities
other than those due to this special class of risk can be met out
of this fund3.
(c) Financial management. — All insurance companies insuring
against industrial accidents must prepare at the end of each
financial year: (1) A "Revenue Account" for the past year, indi1
2
3
Insurance Companies Act, 1909, Section 2 (1), (2), (5).
Ibid., section 33 (1) (d), (e).
Ibid., section 3 (1).
— 372 —
eating the amount of the reserve funds, distinguishing between
the reserve against current risks, the total liabilities in respect of
accidents which have already occurred and, if necessary, any
additional reserves; payments effected under policies; commissions
paid; and working expenses; (2) A profit and loss account; (3) A
detailed balance sheet showing the financial position of the company 1.
Further, every company must prepare an annual statement
of its insurance business in the terms prescribed by the Act ; and
must also instruct an actuary to investigate its financial position
when required. These reports must be printed and deposited with
the Board of Trade 2 .
(d) Information to be supplied to the Board of Trade. — All the
above documents must be transmitted to t h e Board of Trade.
This department, though not possessing, strictly speaking, any
right of supervision or control, may communicate with the company
with a view to correcting any inaccuracies or deficiencies noted, or
completing any information regarded as insufficient 3 .
The Board of Trade shall lay all accounts, balance sheets, abstracts, statements, and other documents which it has received
before Parliament annually 4 .
Any company which fails to comply with these requirements
shall be liable to a fine, and if the default continues for more than
three months after notice by the Board of Trade, such default
shall be a ground on which the Court may order the winding up
of the company 5 .
It will be seen, therefore, that the supervision and control
exercised by the Board of Trade are extremely limited, and the
means at its disposal for verifying the correctness of financial
statements are exceedingly restricted. Nor does it possess any
power to control rates.
After it had been noted, however, t h a t insurance companies
had, during the period 1911-1918 earned very large profits; and
that employers were paying nearly £100 in premiums for every
£48 paid out by insurance companies in the form of workmen's
compensation, the authorities endeavoured to remedy this state of
affairs by a direct agreement with the Tariff companies. An agreement was made in 1923 between the Home Office and the Accident
1
2
Act of 1909, Section 4, and Schedule III.
Ibid., Sections 6, 5 (1), 7 (1).
» Ibid., Section 7 (2).
*6 Ibid., Section 27.
Ibid., Section 23.
— 373 —
Offices Association, by the terms of which the total amounts
paid by companies belonging to the Association as compensation
for industrial accidents, including legal and medical expenses, shall
not be less than 60 per cent, for the years 1924, 1925,1926, and 6 2 %
per cent, for the following years, of the total amounts received as
premiums, or a n \ other proportion not less than 60 per cent, which
may be agreed on by the Home Secretary and the Association 1 .
2. Lloyds'1
Underwriters.
As is well known, insurance is carried on by " L l o y d s " in a
manner peculiar to Great Britain. Lloyds is not a company : it is an
insurance market, includingboth insurers (underwriters) and brokers.
The underwriters take up risks, which are distributed among
groups formed by themselves, though no solidarity exists between
members of these groups ; each underwriter only assuming liability
for the amount of risk taken up by him.
Every underwriter must deposit a sum as "caution money"
whatever branch of insurance is dealt with; and for employers'
liability business insurance, this amount is fixed at £2,000. This
amount is available solely to meet claims under such policies;
and the underwriter has to furnish to the Board of Trade annually
a statement in the form prescribed showing the extent and character of the business effected by him 2 .
3. Employers'
Mutual
Associations.
The Assurance Companies Act 1909 expressly stipulates t h a t t h e
obligations imposed on insurance companies shall not apply to
employers' associations which satisfy the Board of Trade that they
are carrying on, or are about to carry on, business wholly or mainly
for the purpose of insuring its members mutually against liability
to pay compensation or damages to workmen employed by them 3 .
Employers' mutual associations are, therefore, entirely exempt from
the limited amount of supervision which exists in the case of ordinary insurance companies ; and according to a recent report 4 ,
this form of insurance is an extensive one.
Owing to the great freedom granted to mutual associations, it is
difficult, if not impossible, to include them in a general survey.
The methods of calculating annual contributions not only differ
1
Undertaking given by the Accident Offices Association for the purpose o '
limiting the charges to employers in respect of Employers' Liability Insurance,
Cmd. 1891-1923.
2
Act of 1909, Schedule Vili, para. D (1), (3).
3
Ibid., Section 33 (1) (a).
* Report of Departmental Committee on Workmen's Compensation, 1920.
— 374 —
considerably from one association to another, but, as a general
rule, there would appear to be no reserve funds. The usual practice
is to constitute a fund just sufficient to meet the payments to be
effected during the current year.
An Instance of Compulsory Insurance
The law provides for the possibility of organising a system of
compulsory insurance as regards occupational disease, but this
measure is hedged in by a large number of formalities. If, after
enquiry, held on the application of any employers or workmen in
a given industry, it appears that a mutual trade insurance
company, or a society for insuring against the risk of occupational disease, has been established in a given industry, and that
a majority of the employers engaged in the industry have actually
insured against such risks with the company or society in question,
and that the company consents, the Secretary of State may, by a
Provisional Order, require all employers in the industry to insure
in the company or society on such terms and under such conditions
and subject to such exceptions as may be set forth in the Order1.
The Provisional Order cannot be enforced without confirmation
by Parliament; and if a petition is presented against the Bill for
confirming it while the latter is pending before either House, the
Bill shall be referred to a Select Committee, before which the authors
of the petition shall be allowed to appear and to oppose as in the
case of Private Bills.
In point of fact, the Workmen's Compensation (Silicosis) Act
of 13 July 1918 embodied the first application of this system,
and established a special régime of compensation in favour of
workmen, or their dependants suffering from incapacity or disease,
due to pulmonary silicosis. The regulations of 6 January 1919,
issued by the Secretary of State under this Act, set up a general
Compensation Fund, to which owners of mines or quarries from
which materials containing at least 80 per cent, of silica are extracted, and of the factories where these products are worked up,
must adhere. Employers carrying on these undertakings are
compulsorily affiliated to the Fund, which is administered by a
company registered as "The Refractories Industries Compensation
Fund Limited". Funds are provided by means of contributions
levied on affiliated members.
Every employer shall keep a register of wages, which must be
presented to the Company or to its delegates whenever required.
1
Act of 1906, Section 8 (7).
— 375 —
The Company must submit its accounts and statements of management to the Secretary of State when required and in the form pre;
scribed by him. The accounts and balance sheet of the Company
shall be submitted to the Home Office six months after the conclusion of each financial year, together with the reports on the management of the Fund submitted to members of the Company.
The Company shall cause the accounts of the Fund to be verified
at least once a year by a chartered accountant, and shall submit a
copy of his report to the Home Office.
2. — SIMILAR LEGISLATION
In the Irish Free State, the legislation in force is that instituted
by the Workmen's Compensation Act of 1906. The amendments
to this Act, which were introduced by the 1923 Act in Great
Britain, do not apply to Ireland. The only important difference,
with reference to the special question of security under this Act,
arises from the fact that the beneficiary's claim in the case of an
employer's bankruptcy is only privileged up to £1001. This restriction was abolished in Great Britain by the 1923 Act. In Northern
Irland, on the contrary, the provisions of the British 1923 Act
have been adopted.
Australian legislation in the States of New South Wales, and Tasmania; Canadian legislation in the provinces of Quebec, Saskatchewan, and the Yukon territory; Indian legislation, and that of
Newfoundland, New Zealand and South Africa contain similar
provisions to those existing in Great Britain.
Pecuniary compensation, particularly when it takes the form of
periodical payments, is generally compulsorily convertible into a
lump sum in the event of the bankruptcy of the employer liable.
In the Province of Quebec, a capital sum equivalent to the annuity payable in cases of permanent disablement must be paid,
at the request of the victim, to an insurance company selected
for the purpose by Order in Council.
The practice of "contracting out" is prohibited in Canada, in
India, and in South Africa. In the other States mentioned above,
the practice is authorised, but does not appear to be frequently
resorted to. The worker's claim enjoys priority against the employer's estate in the legislation of all these countries, except in
South Africa and in the Yukon Territory.
1
Ibid., Section 5 (3).
— 376 —
In the cases of insolvency, the rights of an insured employer
against the insurer are generally transferred to the worker.
Insurance is private; and is carried on both by insurance companies with fixed premiums and by mutual associations. The
rules governing the constitution of these bodies and ensuring the
publicity of their financial results are generally the same as in
Great Britain.
An important Mutual Association exists in the Transvaal -— the
"Rand Mutual Assurance Company, Limited" — which includes
most of the large mining undertakings.
Insurance companies in Newfoundland must obtain the authorisation of the Minister of Finance and Customs.
In New Zealand, a State institution was created by the Government Accident Insurance Act, 1908, which insures against industrial
accidents, in competition with private insurance companies. This
institution is managed by a Commissioner and a Yice-Commissioner
appointed by the Governor-General, who can, by Order in Council,
raise loans for the purpose of carrying it on. Surpluses at the conclusion of one financial year may be used partly to constitute a
reserve fund, and partly to grant returns of premium to policy
holders who have not suffered from any accident during the current
financial year.
In South Africa, special insurance organisations of a compulsory
nature have been instituted for miners suffering from phthisis
due to the nature of their occupation (Miners' Phthisis Act, 1919).
The insurance fund in this case is managed by a Governing Body
appointed by the Minister concerned, while the fund is supported
by quarterly contributions from employers.
In New Zealand, pensions granted under the same conditions,
under the Miners' Phthisis Act, 1915, are paid by the Minister of
Finance from a "Consolidated Fund", but this system is not really
based on insurance.
The Australian Commonwealth has, on similar lines, assumed
direct responsibility for compensating accidents to workers in its
employ, and also to workers employed by contractors working for
the Commonwealth, unless this liability has explicitly been transferred to the contractor.
In New South Wales, a compulsory system of insurance against
miners' phthisis also exists, instituted by the Workmen's Compensation (Broken Hill) Act, 1920. A feature of the organisation of
this fund, known as the "Broken Hill Compensation Fund", is
the liability of the Government for half the cost of compensation,
— 377 —
and the joint liability of employers for the remaining half, while
workers are directly represented on the management.
In Europe, only two States, outside GreatBritain, has a legislation
providing for voluntary insurance against accidents without
special security funds, namely, Greece and Lithuania. The legislation of the latter provides that where an undertaking is sold or
closes down, uninsured employers shall guarantee the payment of
any pensions for which they are liable by depositing the capital
sum necessary for the purchase of the required annuity, either with
an insurance company, or with a State credit institution. The
claim enjoys priority in the event of the employer's bankruptcy.
The legislation of the various Central and South American States
is also of this type in its essential features; but insurance institutions in these countries can only be carried on after previous authorisation, which can be revoked, has been obtained. Moreover, the
supervision and control exercised over their financial operations
goes beyond the necessity for publicity and for transmitting certain
documents to the Public Authorities. They are also, in principle,
subject to strict supervision and control, exercised under the conditions to be described below in connection with legislation concerning "guarantee funds".
In Brazil and Salvador, insured employers are only freed from
their liability in as far as the amount of compensation determined
by law has actually been paid by an insurance company; and in
Salvador workers are entitled to choose the company.
The legislation of Ecuador compels employers who insure their
workers to insure them also against sickness, old age, and premature
invalidity, the cost of such insurance being borne partly by the
State, partly by the employer, and partly by the workers, in proportions determined by law.
Peruvian legislation provides for the organisation of a National
Insurance Company, and lays down that the rates quoted by
private companies shall not be lower than the minimum rates of
the National Company. This would appear to be the only instance
where, under a system of voluntary insurance legislation, the public
authorities intervene in such a direct manner in fixing the cost
of insurance.
In Panama, employers can grant compensation in the shape of
annuities rather than in a lump sum, provided that proper security
is furnished.
Legislation in Uruguay enables employers to liberate themselves
completely from their liability if they have effected an insurance
— 378 —
with the State Insurance Bank, which substitutes itself for the
employer in respect of all rights and liabilities. But all the requirements of Acts and Regulations in force for the prevention of industrial accidents must first have been complied with. All employers
who do not make use of this faculty must deposit a capital sum,
equivalent to the annuities for the payment of which they are
liable, with the State Bank.
In Japan, the legislation at present in force, the Factory Act of
28 March 1911 and the Mines Act of 3 August 1916, contain no
special provisions as to security for payment or regarding insurance.
But an Act concerning sickness insurance passed by the Diet on
22 April 1922 will come into force as soon as the Decree for regulating its application has been issued : this will be referred to in
connection with compulsory insurance.
GROUP II
Voluntary Systems of Insurance Legislation
with Special Security Funds
{Argentina ; Belgium; Bolivia; France; Spain.)
1. — SUMMARY OF ONE LEGISLATIVE SYSTEM:
FRANCE
1
The principal features of the French system consist in the distinction between the two classes of obligations; those which may
be described as "minor" ones (compensation for temporary disablement, medical, pharmaceutical and funeral expenses) secured
solely (even where an insurance has been effected) by priority on
the estate of the employer; and the obligations, which may be
called "major" ones (compensation for permanent disablement or
death), which are protected by the existence of special "Security
Funds", maintained by contributions levied on French industry
as a whole; voluntary insurance by employers, either through
private companies or through a public fund competing freely with
private institutions ; and finally by the fact that private insurance
companies are compelled to deposit caution money, to constitute
reserve funds, and to submit to the supervision and control of the
public authorities, without, however, having to obtain previous
1
'A' signifies Act of 9 April 1898, amended by the Acts of 22 March 1902;
31 March 1905; 6 July, 31 July, and 5 August 1920; 12 April 1922.
'D 1', 'D 2', 'D 3' signify respectively the first, second and third Decrees
of 28 February 1899.
'D' signifies Decree; 'M.O.' Ministerial Order.
— 379 —
authorisation. A special feature of French legislation consists in
the institution known as "security associations" (syndicats de
garantie), which are employers' associations that have inevitably
become regular insurance institutions, though originally conceived
by the legislator merely as mutual guarantee associations. These
bodies are not compelled to deposit caution money, but must obtain previous authorisation, in the form of an approval of their
Regulations. Only the securities in respect of "major" obligations
will be discussed.
The Obligation or Claim
The title by which a beneficiary can enforce his claim consists
either in a judicial order, issued by the President of the Civil
Court if an agreement in accordance with the provisions of the
Act has been concluded between the parties, or by a judgment
of the Court if the parties have failed to agree. Compensation
iisually assumes the form of a pension paid to the beneficiary
periodically, and the payment of which is regulated periodically
by the debtor. "The debtor cannot be compelled to pay the capital
value of the annuities fixed." 1 This is the fundamental rule laid
down by French law to avoid compelling employers to disburse
excessive amounts at any single time.
The rule, however, is subject to certain exceptions. The debtor
can always, whether an employer or an insurer, liberate himself,
if he prefers it, by a single payment equal to the capital value of
the pensions payable, to the National Pension Fund (Caisse
nationale des retraites) according to the rates established by the
Fund 2. Insurers must choose between two alternatives : either to
continue to assume liability for the regular payment of pensions
for which they are liable, or to deposit, either wholly or in part,
the capital value of the total amount of such pensions, with the
National Pension Fund.
In cases of permanent incapacity due to occupational disease,
the debtor (or debtors) have the same alternatives; and payments
are made in accordance with a special scale, taking account of the
death rate of the victims of occupational disease 3.
On the other hand, the capital value of the pensions payable,
must be paid into the National Fund whenever an employer who
has not liberated himself from his liability to pay pensions ceases
1
s
3
A, Art. 28.
Ibid.
Act of 25 October 1919, Art. 7.
— 380 —
to carry on his business, either voluntarily, or owing to death,
liquidation, or bankruptcy, or by disposing of his undertaking,
unless he or his legal representatives give certain securities x consisting either in the payment of a capital sum to one of the insurance
companies which specialise, in accordance with the provisions of the
relevant Acts and Decrees, in industrial accident risks including
the payment of pensions; or by investing securities of the same
value as the pension for the use of the beneficiaries, out of which
they are only entitled to receive the interest ; or by depositing with
the Deposit and Loans Fund (Caisse des dépôts et consignations)
certain securities guaranteeing the payment of the pension; or,
in the event of the transfer of the undertaking, by the transferee
entering into an agreement with the Director of the Deposit and
Loans Fund to continue paying the pensions due and to be jointly
responsible for such payment with the employer. The latter can
also be exonerated from payment if a member of a "security association" for securing the payment of pensions 2.
Finally, the whole or part of the pensions payable byway of compensation, may be converted into an equivalent capital sum or settled
by the payment of a single lump sum under the following conditions :
(1) Where the beneficiary is a foreigner who has left France,
or when the husband or wife of a deceased victim has remarried,
a single payment equal to three years' pension shall be substituted
for the latter by way of compensation 3 .
(2) At the expiry of the period for the review of the final settlement of a pension, a victim may demand that at least 25 per cent.
of the equivalent capital shall be paid to him in cash, or that such
capital sum (or such capital sum less 25 per cent.) shall be employed
to purchase a life annuity, transferable to an extent not exceeding
50 per cent, to the widow (or widower)4.
(3) Where a pension does not exceed 100 francs and the bene- •
ficiary is of age, it may be redeemed by the debtor in agreement
with the creditor, and the purchase price paid to the latter 5 .
The Debtor
Employers who are neither insured, nor members of a "security
association", remain exclusively liable for the payment of compensation.
1
2
3
A, Art. 28.
D 3 , Art. 1.
A, Art. 1.
* A, Art. 9.
* A, Art. 21.
— 381 —
If they are members of a "security association", they remain
in theory liable for compensation, and the association, the legal
function of which is to provide security, only intervenes if the
debtor fails to meet his liabilities. In practice, however, associations act according to their regulations as regular mutual associations, and assume responsibility for the payment of pensions as
compensation, thus in fact taking the debtor's place. The fact
remains, however, that claimants whose pensions are in arrears,
or the "security funds" which act on their behalf under certain
conditions, can elect to exercise their legal rights, either against
the association, the employer liable, or even personally against
any other member of the association.
Finally, where an employer has contracted with an insurance
institution properly so called (i.e. insurance company with fixed
premiums, mutual association, National Accident Insurance
Fund, etc.) the order granted by the President of the Court, or
any judgment determining the amount of pension payable by way
of compensation, must specify that. the insurer has been substituted for the employer to prevent the victim exercising his rights
against the said employer1 ; and in these cases substitution is
complete and final. The insurer becomes exclusively liable for the
payment of compensation, and the "security fund", should it have
been compelled to advance the amount of compensation in place
of the debtor, ceases to have any rights against the employer 2.
Security of Payment
Legal decisions in favour of the victims of industrial accidents
or their dependants can never have the effect of imposing a mortgage
on the property of the debtor 3 .
No priority in favour of "major" obligations or claims exists if
the debtor is an uninsured employer. If the latter is insured,
however, the debt is then transferred, as we have seen, to the
insurer ; and the legal reserves and the caution money constituted
by the latter are earmarked for the payment of compensation *.
Where an employer is a member of a "security association", the
latter is bound, according to the usual regulations of these bodies 6 ,
to pay the capital value of pensions for which the association is
1
1
3
A, Art. 16.
A, Art. 26.
A, Art. 26.
*5 A Art. 27.
D' 9 May 1923, Art. 29.
— 382 —
liable into the National Pension Fund, not later than two months
after a judgment has been given, or a conciliation order
issued.
Should a debtor fail to fulfil his obligations the National Pension
Fund then becomes liable for meeting them, on the debtor's behalf,
out of a special "security fund" 1. All beneficiaries entitled to
compensation in respect of industrial accidents involving death
or permanent incapacity who have failed to obtain the payment
of the amounts to which they were entitled must make a declaration
to the Mayor of the commune in which they are resident 2. This
declaration forms the starting point of a procedure resulting, if
the claim is substantiated, in the payment of the unpaid compensation by the Deposit and Loans Fund, which administers the
National Pension Fund and the Security Fund 3 .
The National Pension Fund, represented by the director of the
National Deposit and Loans Fund, then exercises its rights against
the debtor. If the latter is insured, the National Pension Fund
has a prior claim to the refund of the advances made in respect
of amounts due by the insurer, under Art. 2102 of the Civil
Code 4 ; for, as we saw above, the Fund has lost its right of action
against the employer.
Moreover, judgments in favour of the National Pension Fund,
exercising its rights against an employer or insurance company, as
opposed to those in favour of victims or their dependants, may
result in imposing a mortgage 5.
How Security Funds are maintained
The Security Funds, according to the provisions of the Act of
30 December 1922, are maintained either by the contributions
from insured employers, or from non-insured employers liable for
the payment of annuities.
Contributions from insured employers are levied in respect of all
insurance premiums paid under the provisions of workmen's compensation legislation, and collected by insurance companies at the
same time as ordinary premiums. Contribution rates were, until
1924, fixed at 2 per 1000 of the total amount of premiums payable.
1
2
8
A, Art. 24.
D 1, Art. 1.
D 1, Art. 2-13.
*6 A, Art. 26.
A, Art. 26.
— 383 —
Uninsured employers, other than the State, pay a contribution
levied on the capital sums equivalent to the annuities for whose
payment they are liable; these payments are made when the judicial orders, or judgments, or decisions determining compensation
are registered. The sums in question are collected, on behalf of
the Security Funds by the registration authorities, and amount
to 4 per 1000 of the capital value of the annuities payable.
Insurance Institutions
Labour accidents can be insured against by:
A. Private institutions: (1) Insurance companies levying fixed
premiums; (2) Mutual associations; (3) Security associations (in
spite of certain features which distinguish them from insurance
institutions strictly so-called, it will be convenient to classify
them with the latter); (4) Agricultural insurance and mutual
re-insurance funds.
B. A State fund, the "National Accident Insurance Fund",
which competes freely with private insurance companies.
A. Private Insurance Institutions for Insuring against
Industrial Accidents
There are no general provisions in French legislation covering
insurance as a whole; and the contract of insurance is, in principle,
governed solely by the common law rules applying to contracts.
A Decree of 8 March 1922, however, issued under the Companies
Act of 24 July 1867, imposes certain obligations referred to below
on insurance companies. Two special classes of insurance are also
subject to legal regulation: life insurance, under the Act of 17 March
1905, and insurance against industrial accidents, under that of
9 April 1898; since 1921, also "nuptialité" 1 and birth insurance.
1. Fixed Premium Companies
These are subject to three types of legal obligation, applying
respectively to limited liability companies ; to insurance companies
in general ; and to insurance companies covering industrial accident
risks. Only the latter two classes of obligation will be referred to.
Insurance companies must either be joint-stock companies, or
stock companies with both active and sleeping partners (sociétés
Insurance for the purpose of providing children on marriage with dowries
(dots).
— 384 —
en commandite par actions). The Decree of 8 March 1922 does not
deal with companies under a single name (sociétés en nom collectif),
or simple partnership companies with sleeping partners (en commandite simple), or with companies whose legal capital is not a
fixed one.
Their capital must in all cases be at least 1 million francs. Insurance companies must set aside at least 20 per cent, of their
profits annually to constitute a reserve fund, but this deduction
becomes voluntary as soon as the reserve fund exceeds one-fifth
of the capital.
Policies must indicate the company's capital; the portion already
paid up or called u p ; the maximum amount which can be covered
under a single risk without re-insurance according to the Company's
regulations; and also whether, under these regulations, the same
capital covers different classes of risk; the total amount of such
capital; and an enumeration of all risks covered.
They are bound to set aside reserves for current risks and
unsettled cases.
Any special obligations to which insurance companies are subject,
in respect of industrial accident risks, caution money, policies,
constitution and investment of actuarial reserves (réserves mathématiques), and administrative supervision and control, must also
be indicated.
(a) Caution money. — Fixed premium insurance companies,
whether French or foreign, must prove t h a t they have set aside
the amount of caution money fixed b y the Minister of Labour on
the advice of the Advisory Insurance Committee on industrial
accidents 1 , and must deposit this amount, after authorisation
from the administrative authorities, with the Deposit and Loans
Fund. The deposit must consist of the securities specified by the
1
The Advisory Insurance Committee on industrial accidents advises the
Minister with regard to any questions which may arise in connection with the
relations between his Department and insurance institutions arising under
relevant Acts and Decrees. This Committee consists of 24 members; 2 senators
and 3 deputies, chosen by their colleagues, the Director of Insurance and
Social Welfare, the Director of Labour, the Director of the Deposit and Loans
Fund, 3 certified members of the Institute of French Actuaries, the President
of the Commercial Tribunal of the Department of the Seine, or a President of
Section appointed by him, the President of the Paris Chamber of Commerce
or a member appointed by him, 2 workers' members on the Superior Council
of Labour, a Professor of the Paris Faculty of Law, 2 Directors or Managers
of Mutual Associations insuring against labour risks or of "guarantee syndicates", 2 directors or managers of insurance companies, covering labour risks
and 4 experts in industrial accident insurance. (A, Art. 24.)
The members thus designated are appointed by Decree. Members who, either
as technical advisers or as directors, managers or agents of insurance companies
or "security associations", have had cognisance of matters laid before the
Committee, shall not participate in its discussions. Decree of 20 May 1905
And 15 October 1915.
— 385 —
Decree, whose value is to be calculated at the average rate prevailing on the Stock Exchange at the date of deposit 1 .
The amount must be 400,000 francs during the first year of the
company's working; and must subsequently be at least 2 per cent.
of the total amount of ihe wages on which insurance risks were
be computed during the last financial year, with a minimum of
400,000 francs and a maximum of 2 million francs. Where an
insurance company, according to its regulations, only insures workers
in occupations where the risk is identical, the caution money must
be equivalent to one and a half times the value of the gross premiums
covering death and permanent incapacity risks, subject to reservations as to the minimum and maximum figures above-mentioned.
To prevent companies, however, from decreasing their caution
money unduly by adopting unduly low rates, it is laid down that
where the premiums charged by a company are lower than the
standard rate of premium determined by Ministerial Order, the
latter shall serve as a basis of calculation in fixing the caution
money 2.
As we have already seen, insurance companies can, according
to their regulations, either assume direct liability for the payment
of pensions, or can immediately pay the capital value of the pensions
for which they are liable into the National Pension Fund. If
their regulations provide for the payment of the total capital value
of the whole of the pensions, the caution money need only be
50 per cent, of the amount it would otherwise have been according
to the above provisions, with a minimum and maximum of 200,000
francs and 1 million francs respectively 3.
According to a decision of 30 June 1900, on the advise of the
Advisory Committee, funds used as caution money must be kept
entirely distinct, both from share capital and legal reserve funds.
Caution money is revised annually. The first payment effected
is published in the Journal officiel, and the Company is then
authorised to cover accident insurance risks.
(b) Policies. — Policies must be drawn up in the form prescribed
by the Act of 9 April 1898 4 (scale of rates, possibility of converting
pensions, wholly or in part, into a capital sum, review, nullity of
agreements contrary to law). They must also specify that the
cancellation clause cannot be pleaded against workers' claims, and
1
5
3
D 2, Art. 2.
M.O., 29 March 1899.
M.O., 29 March 1899.
* Art. 2, 3, 19, 30.
25
— 386 —
must also stipulate that any contracts or agreements cease to be
valid whenever a company's business is suspended by a Ministerial
Order (see below) 1 .
Certain provisions peculiar to agricultural insurance should also
be noted. All agreements for the purpose of insuring against
accident risks in agriculture may, at the request of either of the
parties and despite any provisions to the contrary, be [annulled
every five years 2.
(c) Reserve Funds.— Companies must constitute reserve funds;
and the total amount of actuarial reserves (réserves mathématiques) are set apart to secure the payment of annuities and allowances due as compensation3. They may only be invested under
the conditions specified in the Decree.
Companies which do not remain directly liable for the payment
of annuities are exempt from the provisions concerning actuarial
reserves. They must, however, pay the capital value of the pensions for which they are liable into the National Pension Fund
two months after the date of the judicial order, or judgment,
determining the amount of the pension 4.
(d) Administrative Supervision and Control. — The supervision
and control of the Ministry of Labour are intended to ensure that
companies shall fulfil all their legal or statutory obligations (and
particularly to ensure that their assets shall always include securities of the classes specified by law to an amount equivalent to the
reserve funds figuring among their liabilities); to ensure also that
their financial obligations towards victims are settled in accordance with the terms of judicial orders, or judgments, and that,
in cases where the pension has been converted into a capital sum
after agreement between the parties concerned, this is done in
accordance with the prescribed rates, and does not conceal any
operation contrary to law. Moreover, the information collected
by the officials exercising supervision constitutes a basis for official
statistics concerning industrial accidents. Generally speaking,
supervision and control only deal with businesses covering death
or permanent incapacity risks (so-called "serious" accidents) regarding which companies, which also cover other risks, must maintain
separate departments and keep separate accounts 5.
1
2
3
D 2, Art. 11.
Act of 15 December 1922, Art. 16.
A, Art. 27.
*6 D 2, Art. 9; M.O. 18 Dec. 1902.
D 2, Art. 10.
— 387 —
AU companies must furnish the Minister of Labour immediately,
before being registered in the Journal officiel, with copies of their
regulations, policies, prospectuses, and any other printed information distributed or utilised by them 1.
They must also furnish the Minister periodically, as required
by him, with certain documents and statements in the form prescribed by the Minister, including particularly an annual detailed
statement of their business accompanied by financial tables, a
profit and loss account, a balance sheet, a statement of the securities constituting the assets of the special class of business involved ;
a statement of the pensions payable during the current year and
of the actuarial and supplementary reserve funds corresponding
to the latter ; a statement concerning re-insurance ; and also individual statistical statements concerning all "serious" cases.
Control is not confined merely to a critical examination of these
various documents; but also comprises verification of accounts,
effected at the company's place of business by "sworn controlling
commissioners" (commissaires-contrôleurs) selected by the Minister
and specially appointed for this purpose for stated periods for the
Company whose accounts it is their duty to supervise. These
commissioners verify statements of persons and wages insured,
contracts made, documents of account, cash, securities, and the
system of calculating reserves. Companies are also subject to
the supervision and control of any other person specially appointed
by the Minister for this purpose2.
The penalties include the power conferred on the Minister
to suspend the company's business, and a Decree issued by the
Minister of Labour may at any time compel a company to suspend
its operations, should it have failed to comply with its legal and
administrative obligations, or should its financial position cease to
present the necessary guarantees. Orders are issued with the advice
and assent of the Advisory Committee, after a company has been
ordered to present any observations it may wish to make in writing.
All contracts of insurance covering industrial accident risks cease,
without further notice, to be valid ten days after the publication
of the Order in the Journal officiel3.
The cost of supervision and control is defrayed by contributions
proportionate to the total amount of premiums received, and is
be fixed annually for each company by a Ministerial Order *.
i D 2, Art. 11.
D 2, Art. 13 and 14.
A. Art. 27.
4
A. Art. 27.
2
3
— 388 —
Foreign Companies. — Foreign companies must maintain a
Tepresentative, domiciled in France and specially entrusted with
the management of all business effected in France, who is to be
duly accredited to the Minister of Labour and with the Deposit
and Loans Fund which administers the Security Fund 1 . The amount
of caution money to be deposited is the same as in the case of
French companies, increased by 50 per cent. 2
Finally, while the negotiable securities constituting the actuarial
reserves of French companies remain in their own possession,
foreign companies must prove that they have deposited negotiable
securities of this kind with the Deposit and Loans Fund 3 .
2. Mutual Associations
Mutual insurance associations covering industrial accident risks
are liable to two classes of obligation: the first arising out of their
general character as mutual insurance associations ; the second due
to the fact that they are mutual insurance associations covering
industrial accident risks.
The former obligations, enumerated in Parts I and III of the
Decree of 8 March 1922, impose certain rules concerning the constitution of mutual associations and their management, which are a
logical consequence of the fact that the members of mutual associations are at once insurers, insured, and shareholders.
The Decree also contains provisions defining the method according to which the liabilities of the association shall be distributed.
Its regulations must determine the maximum annual contributions
due by each member in respect of the payment of claims, and the
maximum annual contribution that each member can be called
upon to make in respect of management expenses. It may also be
laid down in these regulations that part of the contributions shall
be paid in advance, and the amount of such contributions, whose
maximum shall be determined by the regulations, shall be settled
by the Annual General Meeting. These provisions are intended to
ensure that the association shall obtain the funds necessary for
the total or partial settlement, during the year, of all losses which
have occurred during that year. A general settlement of all losses
chargeable to one financial year is to be effected three months
after the conclusion of that year.
Mutual associations can constitute "additional reserve funds"
(fonds de réserves complémentaires) in order to meet the differences
1
2
3
D 2, Art. 19.
M.O., 29 March 1899, Art 4.
M.O., 25 June 1921.
— 389 —
in payment of claims, which may occur from one year to another,
out of surplus profits ; they must not levy, however, more than 50
per cent, of such reserve during any one year.
When an association is dissolved, the use to which any remaining
portion of the reserve fund may be put is to be settled by the Annual
General Meeting, subject to the approval of the Minister of Labour.
If, despite recourse to the "maximum" and a levy on the reserve
fund, the funds available for settling all claims are insufficient,
amounts due as compensation are to be proportionately diminished.
Mutual associations may, in no circumstances, raise loans for the
purpose of settling claims. If, at the expiration of each five-yearly
period, the total amounts paid as compensation for claims are less
than 75 per cent, of the amounts fixed as compensation for losses,
an Extraordinary General Meeting shall be called for the purpose
of winding up the association. Should no such General Meeting be
called, every member shall be entitled to have his contract annulled.
In so far as mutual associations cover industrial accident risks
they are subject to the same obligations as those imposed on fixed
premium companies, except as regards caution money, since the
amount, in the case of mutual associations complying with certain
conditions, is fixed at half that for ordinary insurance companies.
These conditions are that the maximum annual contribution for
which every member is liable, in respect of payment of claims,
shall be at least twice the total premium stipulated by his contract
of insurance covering all risks, and three times the partial premium
fixed by the Ministry of Labour for covering death and permanent
incapacity risks only. The obligations thus assumed by members
are regarded as a substitute for caution money1.
3. Security Associations
These are employers' associations, which differ from mutual
associations by the fact that their members' liability is unlimited.
The maximum annual contribution is not determined in advance,
and each member assumes unlimited liability to the extent of his
total resources.
The sole essential difference between "security" and "mutual"
associations consists in the different procedure governing the insolvency of these two different kinds of insurance institution:
Whereas a deficit caused by the failure of a mutual association to meet its
liabilities constitutes a direct charge on the Special Security Fund, set up
1
D 2, Art. 6.
— 390 —
under Art. 24 of the Act of 9 April 1898 (the insurer taking the place of the
employer declared liable, any liabilities on the contrary assumed by a security
association, and remaining unpaid, can only be settled in this manner after
personal discussion with all the affiliated members and after the latter have
been declared insolvent1.
The first consequence which the legislator has drawn from this
legal definition of a security association is that a body of this
kind shall be exempted from the deposit of caution money, since
the unlimited liability assumed by all the members constitutes the
security which other insurance institutions furnish by depositing
caution money. The second consequence is that security associations
shall not be permitted to render this guarantee illusory by adopting
regulations incompatible with solidarity of such a peculiar character; and the Act of 8 April 1898 provides that Public Administrative Regulations shall determine the conditions under which syndicates of this kind may be constituted.
The Decree issued under this Act stipulates that associations of
this kind shall only be constituted after approval of their regulations, expressed by an Order of the Minister of Labour, if the regulations conform to the standard regulations prescribed by the
Decree of 9 May 1923, or otherwise by a Decree issued by the Council of State on the advice of the Minister of Labour. Approval
can be revoked, and will only be granted if the association includes
at least 5,000 insured workers or employees and ten employers, of
whom at least five employ 300 or more workers or employees;
or at least 2,000 insured workers or employees, and 300 employers,
of whom at least 30 employ three or more workers or employees.
Finally, security associations must constitute an additional
actuarial (mathématique) reserve as permitted or required by their
business; must furnish the Minister of Labour with the information and statements furnished by other insurance institutions;
must accept the supervision and control of commissioners appointed
by the Minister, and contribute, under the same conditions as
other insurance companies, to the expenses of such supervision
and control.
Financial system. — The financial system usually adopted is
that of distributing the capital value of pensions payable every
financial year, or a group of financial years, such lump sums
to be paid into the National Pension Fund not later than
1
De l'extension du risque professionel, by Jules LABOUAT, Professor of Law
at the University of Caen. Sirey, Paris, 1914, p. 231.
— 391 —
two months after a Judicial Order has been issued, or a judgment
given. Reserve funds shall be constituted; and the liquidation of
the results of one financial year shall not be regarded as final
until the period of review, in respect of claims occurring during
that year, has expired. Associations may cover all or part of their
risks by re-insurance, but all members remain jointly liable.
4. Agricultural Insurance Funds and Mutual Re-insurance Associations
The aim of the legislator, in extending the principle of occupational risk to compensation for agricultural labour accidents by
the Act of 15 December 1922, was to make it easier for agricultural
employers to insure : the Act enables those employers to whom its
provisions do not apply to insure voluntarily themselves and their
families, and employers to whom they do, to insure themselves
personally against accidents of which they become the victims,
according to the provisions of existing industrial accident legislation 1 . With this object existing institutions, and particularly
agricultural insurance funds and mutual re-insurance associations,
are especially favoured by the provisions of the Act.
The latter bodies are mutual associations of a special character;
and the Act of 4 July 1900, by whose provisions they are mainly
governed, classifies them legally with trade unions, under the régime
of the Act of 1884, which implies considerable simplification of the
formalities necessary for their constitution, and in their management regulations. It may even be thought that simplification goes
too far: for the Trade Union Act of 1884 contains no provisions
adapted to such a special kind of body as a mutual insurance association; while it does, on the other hand, contain many provisions
quite incompatible with insurance, such as the liberty which members of trade unions enjoy to resign at any moment. The Court
of Cassation, therefore, expressed the opinion, in its judgment of
14 May 1913, that though agricultural funds are subject, by their
constitution, to the provisions of the Act of 1884, they are not
"absolutely" (impérativement) subject to them as regards management; and in particular, that members affiliated to Agricultural
Funds remain bound for the period of their contract, subject to
the reservation already noted, namely, the right of resigning
every five years.
1
Act of 15 December 1922, Art. 4.
— 392 —
Mutual agricultural funds also derive important advantages
from the Act of 4 July 1900; and are exempt from all stamp and
registration duties. The Act, however, stipulates that the management must be carried on without remuneration ; and that no profits
shall be earned. The extension of labour accident legislation in
general to agricultural accidents in particular also afforded an
opportunity of defining the rules applicable to these bodies with
greater accuracy, at least with respect to those which intend to
cover risks arising out of the new Act; and by applying the provisions of the Act of 9 April 1898 1 to them, to place them in the
same kind of category as ordinary mutual associations covering
industrial accident risks.
The Act of 15 December 1922 2 stipulates that they shall receive
special State grants annually, equivalent to not more than 50 per
cent, of the contributions for which those members who have
decided to submit to the provisions of industrial accident legislation are liable. The amount of these subventions, to be granted
by the Minister of Agriculture, must be used exclusively for reduc
ing the contributions payable by these insured members 3.
B. Public Funds. — The National Labour Accident
Insurance Fund
The Act of 9 April 1898 did not provide for any public fund
covering industrial accident risks ; but owing to the attitude adopted
by private insurance companies which had formed a consortium,
and in order to create machinery for regulating rates in this new
branch of insurance (for the administrative authorities, though
they exercised a certain control in connection with the financial
management of insurance companies, had no power to regulate
premiums) it was decided to extend the operations of the National
Accident Insurance Fund (Caisse nationale d'assurance en cas d'accidents) created by the Act of 11 July 1868, to industrial accident
insurance business. The Act of 24 May 1899, by which this was
effected, also provided that the provisions of the Act of 9 April
1898 should only come into force one month after the National
Fund had published its rates.
This Fund enjoys a State guarantee, and is administered by the
Deposit and Loans Fund. It covers all death and permanent
incapacity risks (including those due to occupational disease), but
1
2
3
Art. 27.
Art. 11.
Second Decree, 22 August 1923.
— 393 —
does not insure against other risks. The capital value of the pensions
for whose payment it is liable is deposited with the National Pension
Fund, which assumes responsibility for the payment of the pensions.
Premiums must be calculated so as to ensure that both risks
and working expenses are entirely covered without the aid of the
subvention to which the Fund is entitled to have recourse under
the provisions of the Act of 11 July 1868. Premiums fixed by the
published scale may be raised or lowered according to particular
circumstances, particularly in connection with protective measures
adopted by employers.
Seamen
French seamen are subject to a special régime and the provisions of the Act of 9 April 1898 do not apply to them. The régime
is based on compulsory insurance with a single fund maintained
by contributions from seamen and shipowners.
This Fund, the Caisse de prévoyance des marins français, is administered by the Minister of Marine, with the assistance of a
Governing Body. The financial management of the Fund is supervised by the Superior Commission of Marine Invalids' Establishments (Commission supérieure de l'établissement des invalides de la
marine).
The contributions payable consists of a fixed payment assessed
periodically and subject to revision; and a reserve fund must be
constituted. The Fund is authorised to receive State grants under
certain conditions, but grants of this kind must be repaid as soon
as the financial position of the Fund renders this possible *.
The financial resources of the Fund are as follows:
French seamen subject to conscription (inscrits maritimes) and
those engaged as seamen though not subject to conscription (noninscrits embarqués) are liable for the payment of a duty varying
between 0.75 and 1 per cent, of their wages in the case of seamen
engaged in foreign trade (au long cours), in international coasting
trade (cabotage international) or in long distance fishing (grande
pêche) ; while the remainder pay fixed duties varying from 60 centimes to 10 francs per month of actual navigation according to
their rank. Shipowners, on the other hand, must contribute for
each member of the Provident Fund either 3 % Vev cent, of the
1
See the Act of 21 April 1898 to create a Provident Fund for French
Seamen against the Risks and Accidents arising out of their Calling; the Act
of 29 December 1915 as amended by those of 8 and 19 April 191.0, 13 July
1911 and 30 December 1920 concerning the French Seamen's Provident Fund.
— 394 —
latter's wages, or a fixed monthly payment varying from 2.80 to
35 francs according to the number of men engaged and the class
of navigation involved.
The Provident Fund is also maintained by a deduction of one
half per cent, on all orders for marine stores and material ; and by
a grant proportionate to the amount of the bounties paid to the
mercantile marine.
2. — SIMILAR LEGISLATION
Although the main features of Belgian legislation1 are largely
similar to those of French legislation, there are nevertheless numerous and important differences between the two, to which we
propose to call attention. As we saw with reference to the obligation
or claim, French legislation only occasionally and as an exceptional
measure compels the debtor to pay compensation in the form of a
lump sum; while under the Belgian system, on the contrary, this
is the usual mode of discharging the obligation. In cases of permanent
incapacity, the periodical payments assigned to victims are only
paid periodically by the debtor until the period in which review
is possible has expired; after which the debtor must deposit the
capital value of the pension in question with a special institution,
either a savings and pensions bank (Caisse d'épargne et de retraite),
or an insurance company selected for this purpose, which then
assumes liability for payment of the pension. A similar method
is adopted in case of death; where, however, the debtor must
immediately provide the capital value of the pensions payable to
dependants 2.
Employers who are not insured remain individually liable for all
payments 3 ; and are only exonerated from the obligation to deposit
the capital value of pensions as indicated above, in two cases:
(1) Where it can be proved that securities of sufficient value to
guarantee the formation of the required'capital have been deposited
with the Deposit and Loans Fund (Caisse des depots et consignations) or with the General Savings and Pensions Fund, in which
case he remains periodically liable for periodical payments, and the
deposit effected is merely regarded as security for such payments.
(2) Where the eventual constitution of the required capital
value, or the payment of the pensions liable, are secured by a
1
'A' signifies Act of 24 December 1903, amended by ¡Acts of 27 August
1919
and 7 August 1921.
2
A, Art. 14.
3
A, Art. 10.
— 395 —
mortgage, or by depositing caution money, to the satisfaction of a
justice of the peace. The latter is also empowered to declare that
investment in the public funds is sufficient for this purpose; and
the funds so invested may be treated either as the beneficiary's
property, or the latter may only be entitled to receive the interest 1 .
Employers insured with an approved insurance company cease
to be directly liable, the liability being then transferred to the
insurance company. Any risks due to industrial accident legislation may be covered, and the insurer is de jure substituted for
the employer as regards all his rights and obligations 2.
With respect to security of payment, we find, as in France, that
the workers' claim on the one hand enjoys priority 3 ; and, on the
other, that special security funds exist. But there is no distinction
between the two classes of claims, and both methods of guarantee or
security may therefore come into play in any case. Where employers
are insured and the insurer becomes directly liable, substitution
involves the abolition of the priority of a claim on their assets 4 .
In this case, however, legal reserve funds and sums compulsorily
deposited by insurance companies as caution money become
security for the payment of compensation in priority to other
claims 5.
In practice the creditor's real security consists in the fact
that a security fund may eventually come into play. But this
only occurs when it has been proved that an employer or an
insurance company has failed to fulfil obligations; and such proof
must be furnished by the declaration of a Justice of the Peace in the
form prescribed by the Royal Order of 22 December 1904 6 .
Security funds are, as in France, administered by the Deposit
and Loans Fund ; and are exclusively maintained by contributions
from uninsured employers. Levies are assessed annually by a Royal
Order on the advice of the Commission on Industrial Accidents.
Contributions in fact assume the form of payments per undertaking
to which the provisions of the Act apply, and per worker employed ;
while the amounts due are collected by the revenue authorities 7.
Employers, even when not insured, can, at their own request, be
freed from their obligation to pay contributions, where it appears
that the risk of insolvency is negligible. Permission is, in this case,
i A, Art. 16.
A, Art. 10.
A, Art. 15.
A, Art. 16.
A, Art. 17.
A, Art. 20.
A, Art. 20.
2
3
4
5
6
7
— 396 —
granted by Ministerial Order on the advice of the Commission.
Employers who wish to be exonerated must prove that they habitually employ at least 500 workers, that preventive measures
against accidents have been taken (their statements in this respect
being verified by a factory inspector after a special visit of inspection) and that the amount of caution money, fixed by the Minister
on the basis of the risks involved, has been duly deposited with the
Deposit and Loans Fund 1.
The following insurance institutions are entitled under Belgian
legislation to cover industrial accident risks:
(1) Fixed premium companies approved by the Government;
(2) Common Funds formed by employers (Mutual Associations)
which can only be set up after authorisation. Belgian legislation
does not provide for any other forms of mutual insurance;
(3) The General Savings and Pensions Fund is entitled, under
the Act of 24 December 1903 2, to cover industrial accident risks
specified in the Act. The general conditions stipulated in its
policies, as well as the rates quoted, must be approved by Royal
Order, though no such Order has, in fact, actually been issued.
The Fund "has not so far found it necessary to avail itself of the
privilege granted by Section 35, by which it is authorised, though
not compelled, to cover industrial accident insurance risks" 3. This
branch of insurance business is, therefore, in Belgium, exclusively
carried on by private institutions.
(4) • Institutions entrusted with the payment of pensions, after
having received their capital value. This may be done either by
Fixed Premium Companies, Common Funds specially designated
for the purpose, or by the General Savings and Pensions Fund.
It is obvious that these bodies do not in such cases act as though
they were ordinary insurance institutions covering industrial
accident risks : they are simply entrusted, under certain conditions,
with the duty of paying pensions.
All insurance companies which apply for authorisation must
address their request to the Minister of Labour and Industry, and
must show that they have been legally constituted as limited
liability companies or joint-stock companies with active and sleeping partners (Société en commandite par action) 4. The application
1
2
3
4
Royal Order of 22 December 1904, Art. 16-20.
Art. 35.
Report 1905-1908, p. 11.
Art. 2 of the General Regulations on Labour Accident Insurance, 29 Aug.
1904.
— 397 —
must be accompanied by the necessary documents to enable the
administrative authorities to judge of the technical and financial
conditions under which the company is managed; the text of the
general conditions of their policies, and the technical date on which
their rates are based.
The Administrative Services generally subject general policy
conditions to strict control. With reference to the technical data
adopted for calculating premiums, while respecting free competition
and without actually intervening to fix rates, they can make representations to the Minister, and refuse to grant authorisation to
companies proposing either to charge rates which are obviously
too low, or to adopt defective methods for calculating premiums.
As regards capital, insurance companies cannot obtain authorisation unless at least 1 million francs in currency has been underwritten and they can also prove that at least one-fifth of this
amount is fully paid up. Where the capital exceeds 10 million
francs, however, the paid-up portion may be limited to 2 million
by the Order authorising the formation of the Company 1 .
After the receipt of all information, documents and statements
required, the Minister of Labour and of the Interior may, after
taking the advice of the Commission on Industrial Accidents, issue
an Authorisation Order if he thinks fit. A list of companies authorised is published quarterly in the Moniteur. The necessary caution
money must be deposited previous to the publication of the Order.
The provisions concerning the constitution of reserve funds are
much the same as in France. "Legal" reserves, however (réserves
mathématiques), known in Belgium as "provisional" (provisoire)
reserves, only apply to pension instalments payable before the
period in which review is possible has expired.
Companies are subject to supervision and control, whose nature
and scope are based partly on the provisions of relevant Acts and
Decrees, and partly, in a wider degree, on the various relations
created between the administrative authorities and the companies
by the terms of the Authorisation Order. "Authorised insurers are
not ordinary debtors, required only to render accounts to their
creditors : they must also render account to the Government. " 2
One essential feature of this form of administrative supervision is
due to the nature of Belgian legislation: for it is not purely financial,
but also affects the method of adjusting claims. The fact should
1
2
Regulations, Art. 5, amended by M.O. of 20 January 1920.
Report 1905-1908, p. 29.
— 398 —
not be lost sight of that compensation in Belgium may be settled
simply by agreement between the parties; whereas, under French
legislation, for "serious accidents" at all events, an Order of the
President of the Civil Court, or a judgment must always intervene.
The parties can, under Belgian legislation, have their agreement
registered before a Justice of the Peace; and though the latter is
not bound to accept the agreement without discussion, and cannot
authorise agreements whose provisions are in themselves null and
void, the Act does not make registration compulsory, a fact which
explains the necessity for a special form of supervision in all cases
where the parties have agreed among themselves.
A partial endeavour was made to remedy this obvious defect
in the Act by the issue of a circular, on 10 February 1908, which
prescribes, in virtue of the powers assigned to the Ministerial control
services, that proof that the legal obligation of the insurer as regards
the payment of compensation has been fulfilled shall always be
accompanied by a certified copy of the final judgment, or by the
text of the agreement duly registered before a judge. This is an
indirect method of rendering registration compulsory, in cases
at all events, where the risk has been insured, though it remained
voluntary under the provisions of the Act.
Common Funds compete with fixed premium companies1. —
These funds are generally employers' mutual associations working
on a system of joint limited liability to a maximum figure determined in advance. Their financial régime, however, which is not
defined by the provisions of the Act, is in practice usually one where
costs are distributed, a provisional contribution or premium being
fixied for each financial year in advance. Associations must
obtain previous authorisation.
Belgian legislation is particularly favourable to this form of
insurance. Funds are exempted from legal expenses, stamp, and
registration duties; they are entitled to receive gifts and legacies
of chattels subject to the conditions laid down for miners' provident
funds (caisses de prévoyance de mineurs) by the Act of 28 March
1868.
Authorisation depends in the main on receiving Government
approval of the Fund's regulations. The essential clause in these
is the one by which the extent of the personal liability assumed
by affiliated members, which constitutes the "guaranteed capital",
is defined. The financial liability thus assumed by each member,
1
Regulations, Ch. III.
— 399 —
including obligation to pay the premiums for each financial year,
amounts to at least twice the said premium.
The necessity for obtaining previous authorisation made it
possible for the Administrative Services to lay down guiding principles for drawing up the regulations of Common Funds, and only
those funds can be authorised whose regulations ensure their
preserving the character of employers' mutual insurance associations, not seeking in any way to earn profits.
Finally, any Common Fund must, to obtain authorisation,
include either five affiliated members employing at least 10,000
workers, or 30 affiliated members occupying at least 5,000 workers.
Common Funds must deposit caution money under the same
conditions as fixed premium companies. But the amount may be
decreased by 50 per cent, of its theoretical value, or even by 66
per cent, of that figure, in the case of funds representing at least
20,000 workers, if the personal liabilities constituting the "guaranteed
capital" are increased in proportion to this reduction. As regards
special reserve funds (reserves for current risks, provisional "legal"
reserves, reserves for unsettled cases), exactly the same legal
provisions apply to Common Funds as to fixed premium companies.
They must also submit to administrative supervision and control,
exercised in the same way and according to the same rules, as in
the case of the fixed premium companies.
The institutions entrusted with the payment of pensions of which
the capital value has been provided by the debtor, are either
ordinary insurance companies specially appointed for this purpose 1 ,
or the General Savings and Pensions Fund. Only ordinary insurance
companies, or Common Funds already authorised to cover industrial accident risks, can be authorised to pay pensions. Foreign
companies can never receive this authorisation 2.
The payment of these pensions must be managed by a separate
department, with separate accounts, and must be subject to the
same kind of supervision and control as accident insurance business.
Companies which undertake this class of business must deposit
extra caution money and set aside actuarial reserves.
The General Savings and Pensions Fund. — This body, created
by the Act of 16 March 1865 (amended by those of 1 July 1869,
24 June 1894 and 8 August 1897) was the result of amalgamating
the Savings and Pensions Funds previously existing; its operations
are subject to a State guarantee. The Fund is managed by a Board
1
2
Ibid., Ch. IV.
Royal Order of 20 December 1911, Art. 5.
— 400 —
of Directors {Conseil général) consisting of 25 members appointed
by the King; by a Governing Body {Conseil d'Administration), including 7 members chosen among the Directors, and by a DirectorGeneral appointed by the King. The members are generally chosen
from among senators, members of the House of Representatives,
directors or managers of important financial institutions, and among
high State officials. Accounts must be submitted annually to the
"Cour des Comptes"; and an annual report on the operations of
the Fund is issued by the Minister of Finance. All profits must be
used to constitute a reserve fund 1. The Fund includes four departments, which are managed separately: a Savings Bank, a Pensions
Fund, a Life Insurance Fund (including permanent and temporary
risks, mixed business, and endowment policies), and, finally, an
Industrial Accident Pension Fund.
Seamen in Belgium are, as in France, subject to a special regime
consisting of compulsory insurance with a single fund maintained
by contributions from seamen and shipowners. The headquarters
of the Fund, called the Caisse de secours et de prévoyance en faveur
des marins navigant sous pavillon belge, is at Antwerp. This Fund
insures not only against industrial accidents and diseases, but
also against sickness and invalidity in general and against old age.
Its financial resources consist of a deduction of 4 per cent, on the
wages of masters, assistant masters {second capitaine), and chief
engineers, and of 3 per cent, on the wages of all other seamen;
also by the payments of shipowners of all Belgian vessels, equivalent to one-half per cent, of the total wages of seamen embarked
on the vessel 2 .
In Spain3, the obligation or claim in theory takes the form of a
single lump sum paid by the debtor, except in cases of temporary
incapacity, where compensation is obviously payable periodically 4.
In cases of compensation for death, the debtor can pay a life
annuity, instead of the compensation determined by law s , on condition that the pensions are secured to the satisfaction of the
victim's dependants.
Debtors adopting this latter method of meeting their liabilities
shall inform the authorities; and the fact must be noted on the
1
Joseph BEGASSE: Les Assurances sociales en Belgique. Berger-Levrault,
Paris, p. 207.
2
Royal Orders of 28 February 1885, 5 June 1889, 30 September 1900,
31 October 1905.
3
'A' signifies amended Act of 10 January 1922.
4
A,
Art. 6.
5
A, Art. 9.
— 401 —
document forwarded to them, proving the consent of the parties
concerned *. Employers who are not insured remain exclusively
liable 2.
Where employers are insured, the insurance takes the place of all
legal obligations imposed on the employer either wholly or partially,
in so far as it is total or partial, provided always that the risk is
covered by a duly constituted company, selected among those
authorised for the purpose by the Minister of Labour 3.
But the insurer is not completely substituted for the insured.
For workers and their dependants can always, in the first place,
exercise their rights directly against the employer, should they
desire to do so 4. While, in the second, even where a contract of
insurance exists, workers sueing an insurance company must also
sue the employer at the same time 5.
There is one case where an employer cannot insure his liability.
If an accident occurs in any establishment or undertaking where
the machinery is not protected by proper safety appliances, as
prescribed by the Institute of Social Reform, under the Act of
10 January 1922, the lump sum compensation determined by
laws is increased to 50 per cent., and the special risk against
this form of liability cannot be covered by insurance. Where it
can be shown that such risks have been covered by an insurance
fund, a written warning shall be sent to the latter, and should it
persist in insuring such risks, authorisation to cover industrial
accident risks may be withdrawn 6.
Where the employer, or one of the insurance funds liable, fails
to pay the compensation for death or permanent incapacity fixed
by a judgment or by arbitration, the special security fund administered by the National Thrift Institution becomes immediately
liable for the payment of such compensation 7.
This security fund is maintained by an additional levy of 10
per cent, of the annual industrial or commercial duties payable,
or on the capital profits, and capital and business profits
tax combined. These provisions apply to all industries and
undertakings where the employer is liable under the Act of
10 January 1922, except as regards mines. The contribution in
1
2
3
Regulations of 29 December 1922, Art. 19.
A, Art. 2 and 5.
A, Art. 25.
* Ibid.
6
A, Art. 33.
6
Art. 6 of the Act; Art. 65 of the Regulations.
' A, Art. 28.
28
— 402 —
this case is fixed at 10 céntimos per hectare of mining area under
operation 1.
Insurance institutions consist of fixed premium companies and
mutual associations. The former can obtain authorisation after
depositing the required amount of caution money. They must
also, however, obtain Government approval from the CommissionerGeneral of Insurance (as regards ordinary insurance business)
and from the Minister of Labour, who is solely competent to decide
whether they shall be placed on the register of companies which
can assume employers' liability. This register is under the supervision of the General Insurance Council of the Ministry of
Labour 2 . Authorisation may be withdrawn; but the reasons must
be stated in the Decree 3.
Policies must stipulate clearly whether the assurer is substituted
for the employer in respect of all legal obligations; and, where this
is not the case, must clearly define the risks which the company
undertakes liability for instead of the employer4.
The following are considered to be employers' mutual associations: legally constituted mutual associations whose insurance *
business consists solely in distributing risks incurred by a part
of their members among the whole, and where no profits are
derived from the insurance business undertaken by them 5.
Employers' mutual associations guarantee the payment of current
risks in two ways: first, by depositing caution money; secondly,
through the joint liability of all the employers affiliated, which
only ceases when the liabilities of the association have been finally
or periodically discharged 6.
The same authorisation of procedure as for fixed premium insurance companies applies to these bodies. Mutual associations
can only, however, obtain authorisation if at least 1,000 workers
are insured by, and 20 employers affiliated to, the association;
and the last receipt for payment of the industrial tax due is regarded
as proof of being an employer 7.
Associations can include employers in different branches of
industry 8 . They are exempt from all taxation 9. The National
1
2
3
4
5
6
7
8
9
A, Art. 29.
Regulations, Art. 112.
Ibid., Art. 115.
Ibid., Art. 118.
Ibid., Art. 101.
A, Art. 27.
Regulations, Art. 109.
Ibid., Art. 110.
A, Art. 27.
— 403 —
Thrift Institution is to supervise and encourage the development of
this form of insurance by preparing special regulations for territorial mutual associations; by assisting their formation; and furrishing them with advice tending to facilitate unity of management.
The Institution can also intervene in disputes *.
Both mutual associations and insurance companies are under
the supervision and control of the Ministry of Labour.
In Spain seamen are, unlike French and Belgian seamen,
subject to the provisions of the workmen's compensation Act;
but the system of insurance applicable to them is a special
one.
The system is one of compulsory insurance for shipowners with
freedom to choose the insurer 2. Exemption from liability to insure
can only be granted if seamen are shipped under a special agreement "a la parte del dueño" and provided that the agreement
between the master and the crew stipulates that the former is
not insured against accidents.
In Argentina, compensation in case of permanent incapacity or
death must be paid by the employer liable in the form of a capital
sum to the National Pension Fund, which invests it in Government securities and pays beneficiaries monthly any annuities to
which they are entitled 3.
Employers can discharge this liability by ensuring workers
either with ordinary insurance companies or with a mutual association 4.
Employers employing more than four workers must keep a
register specifying the name, address, civil status, and.wages paid
to each employee ; and shall also keep a wages book, in which all
workers or employees employed in the undertaking are entered s .
A special security fund, administered by a special branch of
the Accidents Department of the National Pension Fund, is intended to cover both the expenses of this Department and also to
pay compensation remaining unpaid when an employer has been
declared completely insolvent by the court. This security fund
is maintained out of compensation which, in the absence of any
dependants of the deceased, is unclaimed; out of the amounts
due as compensation to foreigners who have left the country; out
1
A, Art. 31.
* Decree of 14 October 1919 and Ministerial Order of 28 October 1919.
' Act of 11 October 1915, Art. 9.
* Ibid., Art. 7.
~* Regulations of 14 January 1916, Art. 8 and 9.
— 404 —
of annuities purchased by the National Fund, the beneficiaries of
which died without heirs ; out of fines imposed for contraventions
of the Act; out of gifts from private persons; and finally out of
State grants 1.
Both ordinary insurance companies and employers' mutual
associations must obtain previous authorisation 2 , after depositing
50,000 pesos as caution money. The usual legal provisions exist
as to the constitution of reserve funds, and the supervision and control of insurance companies. Authorisation may be withdrawn.
Workers can, with the assistance of the Minister of Labour, make
a claim against insurance companies which fail to pay adequate
compensation.
In Bolivia, compensation takes the form of a capital payment,
both in cases of permanent incapacity and of death. By agreement
with the survivors, however, and provided proper security is given,
compensation can in case of death be granted in the form of pensions 3.
Where an employer becomes bankrupt, the workers' claim enjoys
priority 4 . "Security funds" are maintained in the same manner
as in Argentina. They must be used exclusively to pay compensation due by employers who have been declared insolvent 5.
Employers can transfer their liabilities to legally constituted
insurance companies, duly authorised for this purpose by the
Government. The Act contains no provisions for the supervision
and control of insurance companies.
B. — COMPULSORY INSURANCE LEGISLATION
(Groups III, IV, and V)
Where insurance is compulsory, and where a monopoly exists,
the system becomes practically an automatic one; which implies
that workers employed by an undertaking subject to the provisions
of the system acquire the status of insured persons. To understand
the working of the guarantees provided by a system of this kind,
it is sufficient to be acquainted with its administrative organisation
and the principles on which its finances are managed.
1
2
3
Art. 9 and 10 of the Act; Art. 107-111 oí the Regulations.'
Art. 20 of the Act.
Act of 17 January 1924, Art. 5, 6, 7.
*5 Ibid., Art. 14.
Ibid., Art. 16.
— 405 —
The case is somewhat different when the system allows employers
to choose their insurer unrestrictedly ; for, in that case, in addition
to the factors noted above, it is also necessary to ascertain, where
the employer exercises his choice freely, under what conditions the
insurance is effected, how the fact of insurance is proved, and how
its operation is determined. Moreover, since accident insurance
risks are also covered by private companies, a series of legislative
provisions also exist concerning the formation and supervision
of insurance companies, as in the case of a system of voluntary
insurance. Finally, we have to enquire whether any guarantees
are provided in the event of insurance companies failing to pay
the compensation due.
While it is generally admitted that compulsory insurance is the
best method of effectively securing the worker's claim in respect
of industrial accidents, it is just as well known how difficult it is
to judge of the relative value of the various systems for ensuring
this obligation. The controversy between the supporters of insurance by private companies competing freely with one another and
insurance by special institutions enjoying a monopoly is likely to
continue and it is difficult to see how it can ever be settled. In the
latter case, moreover, the following species of institution must be
distinguished: institutions constituted by industrial groups with
a monopoly of the right to insure in a given industry or region; a
single centralised body which may be either an industrial group or
a more or less independent enterprise; or, finally, a regular State
Fund managed by State officials under Government responsibility.
Practically everything has been said as to the relative advantages
and disadvantages of free competition and monopoly, nor is this
the place to summarise the arguments for. and against these two
systems of insurance; it will suffice to recall the fact that the best
arguments in favour of a monopoly are based on the technical
conditions inherent to insurance; for this system, by giving insurance the widest possible basis, enables the principle of mutuality
and the law of large numbers to be applied to the widest possible
extent. The chief argument against monopoly is not confined to
insurance business : for it is based on the defects generally attributed
to administrative bodies undertaking economic functions, and on
the disadvantage of not allowing the cost of insurance to be determined by a system of competition assumed to be free.
This is not the place to decide between the two systems, and it
will be sufficient to note that, in accordance with the tendency
shown by social institutions, the degree of industrial development,
— 406 —
or the habits adopted and the interests involved, this or that advantage or disadvantage may assume decisive importance in a particular case, which makes it impossible to apply theoretical and
abstract conclusions to each special instance.
To endeavour to interpret the results of actual experience in
each country, with a view to obtaining a definite idea of the social
utility of their institutions, and establishing a relation between
the value of the services rendered and the burdens imposed, would
be an exceedingly complex task, entirely beyond the scope of the
present study.
GROUP III
Compulsory Insurance with Liberty to Choose the Insurer
(Australia (Victoria, South Australia, Western Australia); Chile;
Cuba; Denmark; Finland; Italy (industrial accidents); Netherlands;
Portugal; Sweden.)
1. — SUMMARY OF ONE LEGISLATIVE SYSTEM : I T A L Y 1
As regards industrial accidents, occupiers of undertakings have
the choice under Italian legislation of insuring either with private
companies, with industrial associations, or with the National
Accident Insurance Fund; and certain obligations and certain
privileges are imposed upon this body. Finally, employers are
entitled to create an insurance fund for their own undertaking.
under certain conditions and subject to certain specified guarantees.
Obligation to Insure
1. Scope
All workers to whom the provisions of industrial accident legislation 2 apply, namely, all those employed in undertakings specified
in the law, must be insured by the employer at his own expense;
and there is a similar obligation in the case of undertakings worked
directly by the State, the'Provinces, communes, or public bodies
(pubblici stabilimenti) when a concession has been granted by the
above to a private contractor 3 .
The only employers exempt from this obligation are those who
set up, in accordance with provisions indicated below, either
1
Compensation for labour accidents is organised in Italy according to
two entirely different methods for industrial and agricultural accidents
respectively. In the latter case there is a system of compulsory insurance by
a given
insurer.
2
'A' signifies Act of January 1904, amended by Legislative Decree of 17
November
1918, and Act of 20 March 1921.
3
A, Art. 1, 6, 7.
— 407 —
individually or by forming an association, a private fund for the
purpose of paying compensation. This exemption also extends to
railway companies, by whom Pension or Provident Funds had
been instituted previous to the promulgation of the Act, and whose
regulations were amended to conform to its provisions. The 1904
Act also exempted the State in respect of workers in its employ
entitled to compensation for accidents under special Acts; but
the Legislative Decree of 8 March 1923 provides that all workers
employed by the State in work usually covered by insurance shall
be effectively insured. This obligation, however, does not extend
to State railway employees who remain subject to a special régime.
Workers employed by other Administrative Departments may also
be exempted from insurance in consequence of a decision by the
Minister of Labour, should such a course be justified by special
circumstances.
Among those exempt from the liability to compulsory insurance,
the law also includes employers who can prove that they are
affiliated to a mutual insurance association. For purposes of the
present study, however, it will be more logical to include these
among ordinary insurance institutions, and to treat the members
of an association as having insured.
2. Choice of the Insurer
Employers are, in theory, perfectly free to select the insurer
they prefer. They can insure either with private companies authorised to cover industrial accident risks, with the Cassa Nazionale,
or with a mutual insurance association. In certain cases, however, employers must insure with a given institution, namely, the
Cassa Nazionale, or a compulsory mutual insurance association.
Employers must insure with the Cassa Nazionale if they are
executing public works under concession from the State, a province,
or a commune. Similarly, wherever the State, a province, or a
commune (as regards undertakings worked by it directly) is compelled to insure the workers in its employ, this can only be done
with the Cassa Nazionale 1 .
On the other hand, all employers in the same industry in a given
region may, on the advice of a Chamber of Commerce, a Provincial
Council, or the Council of State, be compelled by Royal Decree
to constitute a mutual insurance association, where it appears
necessary to adopt this method to ensure the proper application
of the provisions of the Act 2.
1
2
A, Art. 18.
A, Art. 26.
— 408 —
3. Entry into Insurance
Within the month following the promulgation of the Act of
1904 all employers to whom its provisions applied were compelled
to take out an insurance policy, unless they could prove that they
were exempt from its provisions. Every owner or manager of a
new undertaking must, subject to the same reservation, insure
before starting work, or in any event, not later than five successive
days after the commencement of work if it was impossible, owing
to the character of the latter, to effect an insurance before beginning
work 1. Employers are liable for the entire amount of compensation
due for any accidents which occur previous to effecting insurance;
and the beneficiary's claim is in this case secured by a priority on
the employer's personal property, under Article 1958 of the Civil
Code and on his real property under Article 1963. All employers
/Subject to the provisions of the Act must make a declaration to
the Prefect of the province in which their undertakings are situated
concerning the nature of the business, and the number of workers
or apprentices employed. They must also state whether an insurance policy has been taken out, whether they are affiliated to a
mutual insurance association1 or to a private fund, or whether a
private fund has been set up by them.
4. Employers' Obligations after taking out an Insurance Policy
Employers must provide both the Government and the insurer
with information concerning the number of workers covered by
the insurance, together with information as to their wages and the
number of days' work performed 2. The following measures are
intended to facilitate supervision:
(a) Employers shall keep a register in which all workers employed in the undertaking are entered, in the chronological order
of their entering his employment;
(¿>) They shall also keep a "wages book" 3 indicating the number
of daily hours of work and the wages paid, either in currency or in
any other form, to each worker;
(c) Employers shall at their own expense furnish each worker
with a personal pay-book in the form prescribed by the Minister
of Labour. This book shall contain all the necessary information
for applying the provisions of the Act, and shall remain in the
worker's possession4;
i2 A, Art. 29.
A, Art. 30
3
Regulations of 13 March 1904, amended by Legislative Decree of 27
March 1919 and Royal Decree of 2 October 1921, Art. 25 et seq.
* Ibid., Art. 31.
— 409 —
(d) The employer shall furnish the Government or the insurer,
on request, with all information concerning the number of workers
employed and their wages, in the form prescribed by the Government or the insurer;
(e) Government inspectors shall verify on the spot all information furnished by the employer. Should it be proved that the number of workers insured is less than the number habitually employed,
this fact shall be communicated to the judicial authorities by the
inspector 1 . In the event of a false declaration being made, a supplementary policy shall be taken out ex officio by the Ministry
of Labour, at the employer's expense, and the offender shall be
liable to a fine from 50 to 1,000 lire. The insurer is also entitled
to have undertakings inspected by agents specially appointed for
the purpose 2.
5. Insurance
Benefits
Insurance covers all risks due to industrial accident legislation,
except the expenses of first-aid treatment and drugs, for which
the employer remains exclusively liable 3 . He can, however, be
exempted from this liability by Prefectural Decree, where it is
shown that a regular medical and pharmaceutical service has been
organised by the employer at his own expense either alone, or
in association with other employers, or that a service of this kind
is managed by the Italian Red Cross 4 . All other payments in
compensation for permanent or temporary incapacity, or for death,
are borne by the insurer.
In cases of temporary incapacity, however, employers must, at
the request of the insurer, advance the sums periodically due as
compensation; and such advances are to be refunded by the insurer
at the conclusion of every month. The employer in such cases is
responsible for verifying whether the worker is actually incapacitated for work; nor can he claim the refund of any amount paid
without sufficient justification 5 .
In cases of fatal accidents, and where the deceased leaves no
heirs or legal representatives under the provisions of the Act, the
insurer must, nevertheless, pay the amount due as compensation,
but this sum must be deposited with the Deposit and Loans Fund
to a special account whose nature will be indicated below. Only
1
2
3
4
5
A, Art. 8.
A. Art. 15.
A, Art. 9 ter.
Regulations, Art. 118.
Ibid., Art. 104 and 106.
— 410 —
the compulsory mutual insurance associations are exempt from
this obligation, on condition that they are liable under their regulations for the payment of compensation in respect of accidents to
workers employed by an employer who, having failed to adhere
to an association, as required by the Act, becomes insolvent 1 .
Insurance Institutions
1. Private Companies 2
(a) A utkorisation.— Private companies wishing to obtain authorisation to cover industrial accident risks must furnish the Minister of
Labour with their standard rates of premium, the general conditions stipulated in their policies, and the rules according to which
reserve funds for covering current risks are calculated. They
must also prove that they have deposited a preliminary sum of
500,000 lire as caution money with the Deposit and Loans Fund
(caution money must subsequently be maintained at the conclusion of each year at a figure equal to two-thirds of the premiums
received in respect of industrial accident risks during the current
financial year). It must consist of Government securities, or of
securities guaranteed by the State 3. After the required information
and proofs have been furnished, the Minister may, if he thinks fit,
authorise the company to cover industrial accident risks.
(b) The insurance policy. — A standard form of insurance
policy is to be approved by the Minister of Labour, and all policies
issued by the company must conform to it 4. In all cases where
the duration of the contract exceeds one year, the contracting
parties are to have the right, notwithstanding any stipulation to
the contrary, to cancel the contract annually 5. Finally, policies
must also stipulate that the contract becomes immediately null and
void where an insured employer is compelled to adhere to a "compulsory association", or if the law is amended in such a manner
as to modify the conditions of the insurance 6.
(c) Government supervision. — Companies must set up a separate
department to deal with industrial accident business and must
furnish the Minister with an annual statement as to this business
1
2
3
4
5
6
A, Art. 10 and 27.
Regulations, Title VI.
Ibid., Art. 70.
Ibid., Art. 72.
Ibid., Art. 71.
Ibid., Art. 71.
— 411 —
together with an annual statement of the general business done
by the Company. Foreign companies must keep all books of
account, registers, and other relevant documents concerning this
class of insurance business at their principal office in. Italy 1.
Companies must be subject to regular periodical inspection.
Inspectors must verify whether caution money has been fixed in
accordance with the regulations, whether policies are issued in
conformity with the approved model, and whether financial statements agree with the books of account. They are also, generally
speaking, entrusted with the duty of supervising all information
supplied by companies to the Minister2; and the latter is also
authorised to order special inspections should he think fit.
The penalties which the Minister can impose on companies
failing to comply with the provisions of the Act or of regulations
issued under it, or. whose organisation fails to give satisfaction are
of two kinds: first, the Minister may cause the board of management to be dissolved by Royal Decree, and may appoint a Royal
Commissioner, paid by the company, whose powers are determined
by this Decree; or, secondly, in more serious cases, a Royal Decree
may be issued revoking authorisation 3.
2. The "Cassa Nazionale Infortuni" 4
This institution is a mixed one, which retains the essential features of a private institution but also acts, in many ways, as a
Public Fund.
An agreement was concluded on 18 February 1883 between the
Minister of Agriculture, Commerce and Industry, on the one hand,
and the Milan, Bologna, Genoa, Rome, Venice, and Cagliari Savings
Funds and the Sienna public pawn shop (mont de piété), and the
Bank of Naples and Sicily, on the other, for the purpose of establishing a National Insurance Fund against industrial accidents; and
this agreement was sanctioned by the Act of 8 July 1883.
The institutions which co-operated in creating this Fund did not
aim at making profits; they assumed the liability for all working
expenses and undertook the joint responsibility for constituting
the original security fund. The creation of this Fund, therefore,
occurred previous to the adoption of special industrial accident
legislation.
1
2
3
Ibid., Art. 69.
Ibid., Art. 147.
Ibid., Art. 148 ter.
* Ibid., Title V (Cf. Cassa Nazionale di Assicurazione per gli Infortuni sul
Lavoro nel suo quarantennio. Roma, 1923).
— 412 —
But this legislation, beginning with the Act of 17 March 1898,
amended by that of 21 January 1904, confers important functions
on the Cassa Nazionale in connection with the enforcement of
some of the new legal provisions adopted; and its headquarters
were, in 1912, transferred from Milan to Rome.
(a) The obligations of the Cassa Nazionale.—The Cassa Nazionale
must accept all insurance risks proposed to it and cannot, like other
insurance institutions, choose between various kinds of risk. The
Cassa must also accept proposals for re-insurance submitted by
compulsory associations; and can also re-insure private funds and
voluntary associations.
Its rates are subject to the approval of the Minister of Labour.
The Cassa is strictly bound by these rates, and cannot grant
special conditions to certain insured persons.
The Cassa is subject, generally speaking, to the same obligations
as private companies in all that applies to approval of its policies,
right to cancel policies annually, and information to be supplied
to the* Minister.
(b) Privileges. — The Fund need not deposit caution money.
It enjoys the monopoly of insuring workers employed by the State,
the provinces and the communes, and those employed in public
works carried on under concession from the State, the Provinces,
or the communes. Finally, it has the monopoly of insuring against
labour accidents in agriculture throughout the greater part of
Italy.
(c) Organisation. — (1) Administration: The administrative
organs of the Fund are as follows: A Superior Council constituted
by Royal Decree, consisting of 18 members, exclusive of the Chairman, and including two representatives of industrial employers,
two representatives of agricultural employers, two representatives
of industrial insured, two representatives of agricultural insured,
six representatives of the Founders' Institutions appointed by the
latter, two members chosen by the Minister of Labour and the
Minister of Social Economy respectively, the Director-General of
Labour and Social Welfare, and the Director of the National Social
Insurance Fund. The Chairman of the Superior Council is appointed
by Royal Decree.
The Fund is actually administered by an Executive Committee
and by the Director-General, the former being composed of 9
members elected from the members of the Superior Council. The
— 413 —
Director-General is a member of the Committee, in an advisory
capacity.
The Director-General is appointed by a Decree of the Minister
of Social Economy, on the advice of the Superior Council; and can
be suspended or dismissed ex officio by Ministerial Decree on a
proposal from the Council. The Director-General is responsible
for the supervision of all the administrative and technical service
of the Fund.
The Superior Council also appoints three commissioners for one
year, whose duty it is to examine the working of the Fund, to
verify the accuracy of the results of each financial year, and to
submit a report on the administrative working of the Fund, together with separate reports relating to each of the different branches
of its business.
(2) Financial management: The Fund must maintain separate
branches for dealing with industrial accident business, agricultural
labour accidents, for insuring workers employed by the State, and
for re-insurance. Surpluses at the conclusion of each financial
year, together with the security funds set up by the Founders'
Institutions, must constitute an Extraordinary Reserve Fund for
meeting possible deficits. Every balance sheet must specify the
ordinary reserves calculated by the competent services for paying
compensation, and for covering current risks.
3. Voluntary Mutual Insurance Associations*
The characteristic features of these institutions are as follows.
Manufacturers, grouped in associations, assume joint liability for
the payment of compensation, and the contributions for which
members are liable are levied according to the same rules, and
subject to the same privileges, as those laid down for direct taxes 2.
An association must group at least 4,000 workers; and a sum
equivalent to 25 lire per insured worker (up to a maximum of 1
million lire) must be deposited as caution money with the Deposit
and Loans Fund in securities issued or guaranteed by the association 3. A sum equal to 50 per cent, of the annual premiums which
would be levied by the National Insurance Fund, if the manufacturers concerned were insured by this body, must also be deposited
with the former Fund. This sum is repayable to the association
1
2
3
Regulations, Title III.
A, Art. 19.
Ibid.
— 414 —
as soon as its regulations have been approved by the Minister of
Labour.
Associations are constituted by public deed stating that the two
above payments have been effected; the deed is to be forwarded
to the Minister of Labour, together with a copy of the regulations
as approved by all affiliated members, copies of policies, a declaration from the National Accident Fund stating what premiums
manufacturers insuring with this body are liable for, and finally
a list of the undertakings affiliated to the Association and the
number of workers to be insured. As soon as the regulations have
been approved by the Minister, by whom they can be amended,
the association is legally constituted and acquires legal personality.
The funds necessary for the operation of the association are
provided as follows. The first year a sum equal to one-half the
amount of premiums at Cassa Nazionale rates is refunded to the
association immediately after its formation: this amount at the
disposal of the association is not refunded to members, but serves
to decrease their subsequent annual contributions. At the beginning
of each subsequent year, members pay an annual premium, calculated on the basis of claims settled during the preceding year.
This contribution is subject to a further "call" or a refund 1.
Associations can re-insure a portion of their risks with the Cassa
Nazionale. They must, however, remain liable for at least onefifth of the compensation payable in case of death, one-half the
compensation payable in case of permanent incapacity, and the
entire compensation payable during the 30 first days of temporary
incapacity.
They can also, on behalf of their members, assume liability for
paying compensation in connection with workers not subject to
compulsory insurance. Associations are subject to the same form
of supervision as private insurance companies.
The Minister may enforce the same sanctions as in the case of
private companies, except that, in this case, the penalty shall
consist of dissolution instead of withdrawal of authorisation.
4. Compulsory Mutual Insurance Associations 2
Owing to the compulsory character of associations, their regulations, instead of being framed at the initiative of members subject
1
2
A, Art. 19.
Regulations, Title X.
— 415 —
to Ministerial approval, are imposed by the Decree by which they
are constituted, on the proposal of a provisional committee.
At least 15,000 workers must be insured. Associations are exempt
from caution money ; this guarantee is replaced by a reserve fund,
to be maintained in the manner and to the amount defined by
the constitutive Decree, which can also stipulate any other form
of guarantee which may appear desirable.
Associations are exempt from the obligation to pay in the
special fund (see below) the compensation due in case of death
when no dependants are left.
They are otherwise subject to the same obligations as voluntary
associations, but they must participate in the supervision of industries for which they have been set up, particularly as regards the
organisation of safety measures x.
5. Private Funds 2
Every manufacturer in an industry subject to the compulsory
insurance can set up a Private Fund, provided that it is authorised
by Act or Royal Decree. This fund must insure at least 500 workers
permanently, and must pay compensation at least as favourable
as that determined by the Act. Several manufacturers in the same
industry, or in connected industries, can form a consortium for
setting up such a fund (Cassa consorziale), provided that they are
resident in the same commune, or in neighbouring communes.
The founders of a fund must deposit with the Deposit and Loans
Fund caution money equivalent to at least 5 times the premiums
which would have been payable to the Cassa Nazionale, if less than
2,000 workers are insured, and three times this amount, with an absolute minimum of 40,000 lire, if it insures more than 2,000 workers.
If the resources of the fund prove insufficient to settle claims,
compensation must be paid by the manufacturer liable.
Private funds are subject to the same kind of supervision as
mutual insurance associations.
The Special Fund
3
This fund, which is managed by the Deposit and Loans Fund,
is not a "security fund" in any way. It is maintained, as we saw
above, by the sums due as compensation deposited by certain
institutions when victims of industrial accidents die without leav1
2
3
Ibid., Art. 136.
Ibid., Title III.
A, Art. 37.
— 416 —
ing heirs or legal representatives. This fund is also maintained by
the fines inflicted for contraventions of the Act.
It is intended:
(1) to assist workers unable to obtain compensation due to
them owing to the insolvency of the debtor;
(2) to grant subventions to institutions undertaking to assist the
victims of industrial accidents during the first five days of incapacity
(i.e. a period during which the Act does not provide for benefit) ;
(3) to grant prizes to inventors of new safety devices;
(4) to grant subventions to associations and institutions which
provide the victims of industrial accidents with medical assistance.
2. — SIMILAR LEGISLATION
The reader will have noticed two opposing tendencies in Italian
legislation, which aim respectively at entrusting insurance to private bodies competing freely with one another, and at setting up
special insurance institutions enjoying a monopoly in certain
occupations or certain districts. These opposing tendencies will be
encountered in various degrees in most legislative systems which
provide for compulsory insurance.
But there are also other reasons, which cause the resemblances
between these various legislative systems to be less noticeable than
those existing between legislative systems with voluntary insurance.
For, as we are led to describe the systems where administrative
regulation plays an ever growing part in the working of insurance,
and where the law tends to define with ever increasing rigidity
the form of the insurance institutions which are set up, it is obvious
that greater differences will be encountered from country to country, even if the general principles remain more or less uniform.
Where the law permits voluntary insurance by private institutions,
on the other hand, the business methods adopted by insurers and
the guarantees established to protect policy holders can obviously
only vary within comparatively narrow limits. As soon, however,
as the principle of compulsion is applied, it can either be imposed
without exception, or can be subject to such exceptions as are
judged expedient by the legislator. Where there is complete liberty
to select the insurer, the principle may be applied either absolutely
or conditionally, while, on the other hand, employers may only be
authorised to choose from an ever smaller number of insurers, in
such a way that, since their number is restricted, a system of free
selection finally coincides with one of monopoly. These facts must
— 417 —
be borne in mind to understand the following summaries and to explain
certain comparisons between legislative systems of a very different
character, which would otherwise appear somewhat artificial.
Netherlands. — The freedom enjoyed by the employer in selecting the insurer is subject to certain restrictions unknown in Italy.
The law, on the other hand, permits employers to insure their
own risks in certain cases and subject to certain specified guarantees. Definite guarantees are provided where the insurer selected
by the employer becomes insolvent.
Owners or managers of industrial and commercial undertakings
may insure either with the State Insurance Bank, or with private
companies; they may join mutual associations or, finally, may cover
their own risks after providing suitable guarantees. Employers in
agriculture must either insure with the State Bank, or become
members of agricultural trade associations. As regards workers
employed in the shipping or sea fishing industry, strict guarantees
are provided by the Act, which aim at making employers join the
security associations set up in these industries during the war.
The State Insurance Bank is a public institution, created by
the State and working under government control. In addition to
a special industrial accident insurance branch (not to mention
the financial management and a part of the administrative management of the compulsory old age and invalidity insurance and of
voluntary old age insurance with which it also deals), one of the
functions of the Bank is to fix compensation rates for accidents;
and also to pay compensation by whatever assurer the risk is
covered. The management of the Bank is controlled by a Supervisory Council, and consists of two members appointed by the
Crown, assisted by an actuary also appointed by tbe Crown. The
management must render accounts and be responsible for the
administration of the Bank to the Minister of Labour, and must
furnish a technical balance sheet in respect of industrial accident
business every five years.
The Supervisory Council consists of eight members, 4 employers
and 4 workers (with two substitutes for each group in each case),
appointed respectively by the employers and workers members
of the Insurance Council, and also by an odd number of members
appointed by the Minister of Labour.
The Bank is conducted financially on a fixed premium basis.
Each branch of industry covered is classified according to risk;
each category including a certain number of co-efficients of risk,
comprising the special dangers inherent to each industry included
27
— 418 —
in the category. The published rates must indicate the premium
payable, per florin of wages, for each co-efficient of risk.
All industrial, commercial, and agricultural employers insured by
the State Bank must submit lists of wages. Each employer sends
the Bank a list of the premiums due, calculated by him after receiving notice of the co-efficient of risk applicable to him, and subject to verification by the Bank.
The Bank constitutes two separate funds, for industrial and agricultural insurance respectively; and a reserve, not exceeding 1
million florins, must be set aside in each fund.
Industrial and commercial employers can only insure with a
limited liability company or with a mutual association after
authorisation from the State Bank; and risks can only be transferred
if the insurer provides adequate security, by depositing caution
money. Industrial and commercial employers may carry their
own risks, on the other hand, either by depositing caution money
or constituting a mortgage. But authorisation of this kind is
limited by the fact that the total number of workers insured by
the State Bank must never fall below 60,000.
Where an accident occurs in an undertaking which is not insured with the State Bank, the latter is nevertheless responsible
for paying compensation to the victim, or to his dependants or legal
representatives. In such cases the insurer or the employer, where
no insurance exists, refunds the amounts thus paid to the Bank.
In the event of the insolvency of an employer or an insurer,
the Bank can realise the securities placed at its disposal. If they
are insufficient for the complete settlement of the claim, and if
the Bank cannot recover the total amount of the debt, the State
then becomes liable for refunding any amounts still due.
As regards agricultural undertakings, the only insurers are the
State Bank, or the trade associations, which are employers' mutual
associations whose regulations must conform to certain conditions
laid down in the Act. The members of these bodies may either
assume joint liability for the debts of the association, or a system
of limited liability may be instituted. All employers who wish
to be affiliated must be admitted, provided they comply with the
conditions contained in their regulations. Half the members of
the Council and of the Direction are appointed by the Minister of
Labour from a list drawn up by the most representative workers'
organisations.
These associations are perfectly free as regards the choice of a
financial system, and can undertake the payment of pensions. They
— 419 —
must deposit the capital value of the pensions for which they are
liable as caution money with the State Bank.
A Supervisory Council, the members of which are appointed by
the Crown (one-third on the proposal of employers' and workers'
organisations respectively), must assist the Government in all
questions affecting trade associations, and are competent at any
time to appoint a special Committee among its members for the
purpose of examining the books and documents of "associations".
Accident compensation for persons employed in shipping and
fishing is provided under the Acts of 8 May 1915 and 27 June 1919.
These laws do not impose an obligation to insure, but establish
a peculiar system of guarantees. The employer may furnish the
required security either by depositing caution money to the amount
considered sufficient by the Minister of Agriculture, Commerce
and Industry, or by insurance (the State may act as insurer). In
practice the majority of employers provide the necessary guarantees
by joining, directly or indirectly, the single ship-owner's mutual
insurance association (Vereeniging Zee-Risico, Amsterdam).
Finland. — Employers can insure either with private companies,
or by joining mutual associations. The Order of 18 August 1917
provides for the establishment of a National Insurance Fund,
which however has not yet been set up. Employers who are unable
to insure, and are thereby compelled to carry their own risks,
must provide security; and should a worker be granted a pension
as compensation, the capital value of the pension must be deposited
with a Finnish insurance company undertaking life annuity business. Mutual associations and insurance companies can only
commence business subject to previous authorisation.
Denmark. — Danish legislation does not provide for any State
insurance institutions; and all employers subject to its provisions
(except shipowners and employers in the coasting and fishing
trade), are bound to transfer all risks for which they are liable to
an employers' association with joint liability whose regulations
have been approved by the Minister of the Interior, or to limited
liability companies subject to special recognition in each case. The
Minister of the Interior is, moreover, entitled to exempt any
employer subject to the provisions of Danish legislation from liability to insure on the proposal of the Workers' Insurance Council,
provided the security specified by the Minister has been furnished.
The fact of insurance is proved by an insurance certificate delivered by the insurer, which must be posted up in all undertakings where more than three workers are employed.
— 420 —
Shipowners must be affiliated to a mutual insurance association,
and this provision also applies to heads of fishing and coasting
undertakings.
Recognised insurance companies receive a State grant, provided
their accounts are in proper order, which is intended to enable
them to reduce premiums for heads of small undertakings (i.e. those
earning less than 1,800 crowns per annum in rural communes;
2,100 crowns in towns; and 2,400 crowns at Copenhagen and Frederiksborg). This also applies to heads of undertakings who insure
voluntarily.
In certain specified cases, moreover, the Treasury refunds half
the amount of compensation paid by Employers' Coasting and Fishing Insurance Associations. The grant is devoted entirely to reducing premiums paid by members. The Treasury also refunds
all recognised insurance companies and insurance associations all
compensation paid in respect of accidents occurring in connection
with the saving of human life.
The chief administrative organ for insurance is the Workers'
Insurance Council, which includes members appointed by the
Crown, and an equal number of representatives of insured employers
and workers. The Council determines to what undertakings
legislative provisions apply, what persons are deemed to be employers
and the nature and extent of compensation to which the insured,
or their dependants, are entitled. Appeals on points of law lie from
its decisions to the Minister of the Interior, who is competent to
annul them and to return cases to the Council for re-hearing.
Sweden. — Only the National Insurance Office, or employers' mutual associations are competent to insure. The National Office is
an autonomous public institution with legal personality working under State supervision and control. All workers are in theory
deemed to be automatically insured by the Office, unless the employer can show that he is a member of a mutual association.
The Office is managed by a Director-General, and three heads
of sections appointed by the Government. Neither the employers
who are bound to insure nor insured workers have any share in
the administration of the Office; but the Direction is assisted, as
regards the financial management of insurance funds, by one representative each of the employers and workers respectively, in an
advisory capacity only, in addition to two insurance experts.
The premiums of employer members of the National Office are
fixed each financial year, account being taken of the co-efficients of
risk, and of the wages bill ; the capital value of pensions is shown
— 421 —
as a liability in the balance sheet. The administrative expenses of
the Office and of the Insurance Council are provided out of an
additional contribution from employers : should these contributions
prove inadequate the deficit is covered by the State out of taxation.
Mutual associations are established in accordance with the
provisions of the Act of 27 May 1917 concerning private insurance
companies. The liability of members is unlimited. In principle
all workers employed by a member should be covered by his association; nevertheless the Insurance Council may allow exceptions
to this rule. Mutual associations must obtain the authorisation
of the State and are placed under its supervision. The contributions of members are calculated on the fixed premium plan,
account being taken both of classes of risk and of wages bills. The
associations contribute to the administrative expenses of the
National Office and the Insurance Council.
When an employer is bound, in virtue either of an undertaking
given by him or of another law, to pay an allowance in case of
industrial accident, or when such allowance is paid by a provident
fund to which the injured workman belongs and which is financed
to the extent of at least two-thirds of its income by the employer,
the insurance institution has the right, under certain conditions, to
reduce the compensation payable by it to the extent of the allowance
and likewise to reduce the employer's contribution. Nevertheless,
such self-insurance by an employer is only of a subsidiary character,
since the insurance institution remains finally responsible for the
payment of compensation.
The supervision of insurance institutions is undertaken by the
Insurance Council, which is composed of at least 7 members, of
whom 2 are employers', and 2 are workers', representatives; all
are appointed by the Government.
Appeal is allowed to the Insurance Council against any decision
of the National Office or a mutual association; decisions can be
altered by the Council even if no appeal is made. The Council's
award is final.
Portugal. — Employers must insure workers employed by them
either with mutual associations, or with fixed premium companies
working under government supervision and control. They are
also entitled to carry their own risks, provided they deposit the
value of pensions payable with the Institute of Social Insurance
as security, to the account of the Minister of Labour. This deposit
may be replaced either by a mortgage, by caution money, or by
security furnished to the Governing Body of the Institute. If, as
— 422 —
appears probable, security is only demanded in cases where an
employer is actually liable for the payment of pensions, Portuguese
legislation, although officially described as a compulsory insurance
system, should more properly be classed with voluntary insurance
systems.
The Decree by which it is proposed to organise a compulsory
system of insurance provides for taking a census of employers,
and wage-earners, employees, or domestic servants in each commune. Employers must furnish all workers affected with a
membership card denoting their affiliation to the system of compulsory social insurance against industrial accidents. The formation of at least one employers' or joint mutual association, legally
authorised to deal exclusively with labour accident risks, is compulsory in every commune.
The general management of the insurance system is carried on
by the Compulsory Social Insurance and General Provident Institute, attached to the Ministry of Labour, and administered by a
Governing Body appointed by the Government. A Superior Council of Social Welfare and an Insurance Council work in connection
with the Institute, their duty being to examine all legislative reforms
which appear necessary; and for this purpose representatives of
employers' and workers' industrial organisations are included.
Chile. — With reference to the new legislation introduced by
the Act of 8 September 1924, a similar remark applies to that
already made in the case of Portugal. While the Act institutes
compulsory insurance, on one hand, either with a mutual association, or a Chilean insurance company, or even with any institution
with legal personality, employers can, on the other, be exempted
from liability to insure by providing adequate security for the
payment of pensions for which they are liable. Employers,
however, are subject to an obligation not imposed by Portuguese
legislation: they must contribute to the creation of a Security
Fund, out of which any compensation, owed by insolvent employers or insurers is paid.
Australia. — Three of the Australian States (Victoria, South
Australia and Western Australia) now possess compulsory insurance legislation. In Victoria, employers must insure either with
the State Accident Insurance Office, or with an insurer approved
by the Governor in Council. But although insurance is compulsory, it does not transfer the legal liability for compensation from
employer to insurer; and the former is always deemed legally
responsible, subject to the right of recovering amounts due
— b'2ó —
from the insurer. Where an employer becomes insolvent, however, his rights against the insurer are transferred to the worker.
The law also provides, in certain cases, for "contracting out."
In South Australia and Western Australia, the laws provide
simply that every employer shall obtain from an insurance office
a policy for the full amount of his liability to pay compensation
to all the workmen employed by him. The South Australia Act
does not define "insurance office", which may be supposed to be
a private company or a mutual insurance association. The Western Australia Act says "an incorporated insurance office"
Both Acts permit exemptions. In Western Australia exemption is
allowed in one case only: where the employer has established
his own insurance scheme and has deposited with the State Treasury securities sufficient to cover all compensation payments
which may become due. In South Australia likewise, an employer who has established his own scheme, which is actuarially
sound, is exempt; further, any employer who proves that his
financial resources are sufficient to meet all probable claims may
obtain exemption.
Cuba. — Cuban legislation stipulates that all employers subject
to its provisions shall insure either with a limited liability company,
or with a mutual association. All employers, however, able to
prove their solvency in the form prescribed by law may, if they so
desire, insure their own risks after receiving a certificate issued by
the Secretary of the Ministry of Agriculture, Commerce, and Labour.
Insurance institutions must be authorised by the Secretary. The
members of a mutual association are jointly liable; and both
companies and mutual associations must deposit caution money.
GROUPS IV AND
V
Compulsory Insurance with a Specified Insurer
The study of security systems in the case of the legislative
systems remaining to be described coincides with that of the administrative and financial organisation of insurance institutions.
Although the conception still partly survives that accident insurance constitutes insurance against the civil liability of heads
of undertakings, the guiding principle of these legislative systems
justifies them being classed with social insurance systems properly
so-called: throughout this part of the study therefore the term
"insured" refers exclusively to workers employed in undertakings
covered by the system.
— 424 —
Group IV : Insurance by Trade Associations
(Austria; Czechoslovakia; Esthonia; Germany; Hungary; Japan
(new legislation) ; Latvia; Luxemburg; Poland; Roumania; Serb-CroatSlovene Kingdom.)
In countries where compulsory insurance is undertaken by
associations of heads of undertakings, they generally enjoy a
considerable administrative autonomy by law; but the financial
administration of the insurance system is, on the other hand, subject
to strict regulation. Finally, the security afforded to creditors
in the last resort is based on the unlimited joint liability of the
affiliated employers, which does not generally come into play
directly, as the payment of claims is undertaken by the State
which subsequently obtains a refund of the sums paid from
the insurance institutions liable.
1. — SUMMARY OF ONE LEGISLATIVE SYSTEM: GERMANY
1
German legislation defines the following insurance institutions:
(1) mutual trade associations; (2) the Reich, or an individual State,
when the latter is actually the employer 2 , and in a certain number
of other permanent or temporary undertakings; (3) the communes,
or communal unions, and other public bodies in respect of construction work undertaken by them as contractors.
In spite of the name of the system, compensation for industrial
accidents, where it is not undertaken by trade associations, is
not based on insurance, since the cost is defrayed as it arises by
the individual resources of the institution concerned (Eigendeckung).
There is, however, no need to study this method of covering
compensation costs in detail, as the worker's claim is sufficiently
secured by the nature of the debtor. It may, however, be noted
t h a t in certain branches of industry the law authorises the adherence
of the Reich, the States, or Communes to mutual trade associations.
Mutual Trade Associations
3
1. Definition; Aims; Constitution.
Accident associations are compulsory associations with legal
personality, composed of all heads of undertakings engaged in a
1
Reichsversicherungsordnung, edition 1924, Art. 623-629.
The ''Deutsche Reichsbahn-Gesellschaft" has become, since the inception
of the Dawes Plan at the end of 1924, the institution for insuring the staff of
the railways controlled by it.
» Designated below as "accident associations".
2
— 425 —
similar industry in a given district. The principal aim of these
associations is to ensure that workers employed in any of the
affiliated undertakings shall receive the compensation for accidents
to which they are legally entitled; sickness or invalidity benefits
are, however, during the first thirteen weeks paid by the social
insurance sickness funds 1 .
Associations can also insure their members against liability in
those exceptional cases where the law provides for partial maintenance of common law liability (penal liability of the employer).
They can also set up pension funds, both for members and for
insured persons, and can deal with the question of finding employment for workers disabled by industrial accidents. They are also
entrusted with the duty of prescribing safety measures and supervising their application.
The existing accident associations were for the most part set up
when new legislation was adopted in 1884. They were established
by the Act itself in the case of the underground construction
(Tiefbau) and shipping industries. Other associations were subsequently set up by the Bundesrat on the basis of preparatory
studies by the Reich Insurance Office in conformity, as far as
possible, with the desiderata expressed by employers' associations ;
and in the agricultural industry they were sometimes created by
State legislation.
Since that period, however, very few of them have been created
owing to the progressive increase in the number of insured. In
1924 there were 32 associations covering the whole of the Reich,
with 36 industrial and 44 agricultural associations for a single
State or province only. The fusion of several associations is
permitted by law ; and the insurance of certain branches of industry can be transferred from one association to another by a
resolution of the general meeting of the associations concerned,
subject to approval by the Reichsrat 2 .
2. Affiliation.
All occupiers of undertakings in those branches of industry
assigned to an association, whose principal place of business is
situated in the district of that association, are members of an accident association3. Where different branches of industry are
carried on in one establishment, it is to be assigned to the associa1
2
3
Reichsversicherungsordnung, 1924, Art. 558.
Ibid., Art. 636-638.
Ibid., Art. 649.
— 426 —
tion to which the principal branch corresponds 1 . Affiliation
dates from the opening of an establishment or from the date it
becomes subject to insurance 2.
Within a week of the date of affiliation, all occupiers of undertakings must forward a declaration to the local insurance office
of the district in which the undertaking is situated, defining the
nature and scope of the undertaking, the number of persons
insured, the association to which it is affiliated and, if the undertaking was opened or became subject to insurance after the Act
came into force, the date of affiliation. This declaration must be
forwarded to the managing committee of the association by the
office, unless the latter considers that the undertaking properly
belongs to another association, in which case the declaration is
forwarded to the latter, after the former and the occupier have
notified 3.
If the managing committee accepts affiliation, the fact has to be
registered and a certificate granted to the occupier, which constitutes proof of membership ; when it is declined, the occupier must
be informed of the decision, against which he can appeal, as also
against acceptance, to the Superior Insurance Office within 30
days.
Membership ceases when the occupier ceases to carry on business,
when the undertaking ceases to be subject to insurance, or when
it is transformed in such a manner as properly to belong to another
association. Where the occupier of an undertaking changes, the
new occupier immediately becomes a member of the association.
and all such changes must be declared within the period specified
by the Act.
. 3. Administration.
The administrative systems of associations are determined by
their regulations in as far as they are not imposed by the Act 4 .
The regulations must be drawn up by a first general meeting of
the association, and must subsequently be approved by the Federal
Office, and the general meeting must draw up fresh regulations
if such approval is refused; if it fails to do so the regulations must
be drawn up by the Office.
The administrative organs specified by law consist of the general
meeting of the association and the managing committee.
1
2
3
4
Ibid.,
Ibid.,
Ibid.,
Ibid.,
Art. 631.
Art. 650.
Art. 653-655.
Art. 675-684.
— 427 —
The regulations may specify whether the general meeting shall
include all members, or only representatives of the latter. The
general meeting is the supreme authority of the association, elects
members of the managing committees, can amend the regulations,
and approves the accounts for each financial year.
The managing committee is responsible for current business,
and represents the association. It is empowered to take all decisions or necessary action, subject to its responsibility to members
of the association on the one hand, and to the supervisory authorities on the other.
The association may decide that it shall be divided into autonomous sections, with a separate committee and general meeting
for each section. In this case, however, the association as a whole
remains the insurance institution, and alone possesses legal personality.
Both insured persons and "Works Councils" are entitled, under
the Act, to participate in all discussions concerning safety measures.
The insured must also be represented in all deliberations for
determining the amount of compensation.
Associations can appoint confidential local agents (Vertrauensmänner) x, whose duty it is to inform the association whenever an
enquiry is undertaken concerning an accident, to supply it with
information for classifying undertakings according to risk, and to
represent the association at enquiries.
4. Financial management.
The financial régime is that of the distribution of annual compensation, except in the case of Underground Construction Associations,
which have adopted the capital distribution system; and except
also in the cases of construction work insured by branches (see
below), of the branches of the Maritime Association, and of the
Association of Owners of Draft and Saddle Animals (not for
industrial purposes), all of which have adopted a fixed premium
system 2.
(a) Distribution of annual compensation payments or capital3.
(1) Current expenses: distribution only takes place at the end
of the financial year, and current expenses are covered by advances from members, deducted from the final contribution
for which they are liable. The Post Office administration undertakes the payment of compensation to victims of accidents
1
s
8
Ibid., Art. 678.
Ibid., Art. 731.
Ibid., Art. 726-782.
— 428 —
(or their dependants or legal representatives); and until quite
lately it advanced the sums payable, which were only refunded
when costs were distributed. Since 1 November 1923, however,
associations must pay the Post Office, at the beginning of each
month, the sums presumed necessary for paying compensation
during that month, which compels them to keep a considerable
cash reserve.
If the sums due to the Post Office are not refunded within the
proper time, the Reich Insurance Office can take legal proceedings
against an association to enforce payment; and should the funds
of the latter be insufficient to meet this liability, the Office can
proceed against each member individually until the amount due
has been paid.
(2) Distribution : The liabilities at the conclusion of each financial
year include the benefits paid during the year (in the case of pensions,
either annual payments due, or the capital value of the pensions
which have commenced to become payable during the financial
year), amounts due to the reserve fund, any amounts necessary
for maintaining the required cash reserve, and, finally, administrative expenses.
The method of distribution is based on published classes of
risk and on the total wages paid, as explained in the preceding
chapter. In the case of agricultural associations, distribution
may also be effected on the basis of taxation, or on that of cultivated area or net yield.
The information required for determining co-efficients of risk
is supplied by statements furnished by occupiers of undertakings
to the association, during the six months following the conclusion
of the financial year. These statements must indicate the number
of insured persons in the undertaking and the wages paid. As
associations draw up accident statistics, specifying the undertakings where they occur and the compensation payable, they possess
all the necessary data for determining and classifying co-efficients
of risk.
Scales of risk are drawn up by the general meeting, subject to
revision at least every five years, and must be approved by the
Reich Insurance Office. The association may either impose additional contributions, or grant reductions to occupiers of undertakings, when scales are renewed, on the basis of the number of
accidents which have occurred. But during the period for which
the scale applies, no account of the cost of a particular establishment to the association can be taken in assessing its contributions.
— 429 —
Contribution rates may, however, be modified should it appear
that the declarations made by an employer were false or that
changes have occured in working conditions (Art. 706-712).
Contributions must be paid, under pain of distraint, within
a fortnight of the date on which occupiers of undertakings receive
an extract from the contribution scale, which contains all the information necessary for enabling employers to verify the accuracy of the
calculations. Members of the association may contest the sums
due, without prejudice to their payment within the prescribed
period, and can appeal to the Superior Insurance Office. Unpaid
contributions which cannot be recovered must be borne by the
members of the association as a whole. When it becomes necessary
to make advances during the financial year, they must be distributed in proportion to the contributions payable during the
preceding financial year.
(3) Reserve Fund: The provisions concerning the maintenance
of a reserve fund, as laid down in the Act of 1884 and amended in
1900, were again revised in 1923. At present the reserve fund is
maintained by accumulating an annual sum equal to 10 per cent.
of the amount required for the payment of pensions until the fund
reaches three times this amount x .
At the request of the managing committee of an association, the
Reich Insurance Office may authorise levies on the reserve fund.
The Office settles the amount of the additional contributions which
must be paid annually thereafter in order to replace the sums thus
withdrawn from the reserve fund 2.
(b) Fixed premiums 3. — Branches (Nebenzweige) are insurance
funds which, in view of the special conditions prevailing in certain
branches of industry, are administered financially independently
of the principal Association to which they are, however, administratively attached.
Branches have been set up in the Construction Work Associations for employers who do not habitually undertake construction
work and in the Maritime Association for small undertakings.
Branches work on a fixed premium system; which is also used by
the Association of Owners of Draft and Saddle Animals.
Let us take a branch in one of the Construction Work Associations as an example. The cost of insurance only falls on the em1
2
3
Ibid., Art. 741-744.
Ibid., Art. 746.
Ibid., Art. 783-824.
— 430 —
ployer in connection with contracts involving more than six days
actual work. The scale of premiums is fixed at least every five
years by the Reich Insurance Office on the basis of probable costs
(capital value of pensions payable; additional payments for reserve funds; cost of administration), estimated on the basis of the
average number of accidents annually in long time contracts. The
managing committee of the association afterwards assesses the
premiums due from each occupier on the basis of this scale and the
wages paid. The amounts due are recovered from the occupier
by the communal administration.
For short period works (less than six days), the system of distribution remains in force ; and the cost of insurance is borne in this
case, not by occupiers of undertakings, but by the communes included in the territorial district covered by the Association, in
proportion to their population.
5. Supervision1.
The supervision of accident associations is carried out by the
Reich Insurance Office or the State Insurance Offices (in Bavaria,
Saxony, and in Baden, for associations none of whose members
are established outside the limits of the several States).
The Reich Insurance Office contains permanent members
appointed by the President of the Reich, and temporary members
elected by employers and workmen (the composition of the State
Offices is similar). The associations are required to submit to
it reports and accounts of their administration ; at the end of each
year the Office lays before the Reichstag a general report on the
financial results of the year.
When an accident association is unable to pay compensation,
i.e. becomes insolvent, it may, at the instance of the Reich Insurance
Office, be liquidated by the Reichsrat. In that case its rights and
liabilities are transferred to the Reich or one of the States.
2. — SIMILAR LEGISLATION
Austria. •— The monopoly of industrial accident insurance is
divided among mutual inter-trade associations (Alle Berufe umfassend) organised by district. Three of these institutions exist
with their headquarters at Vienne, Gratz, and Salzburg respectively.
All occupiers of undertakings subject to insurance in a district,
together with the employees and workers in those undertakings are
1
Art. 35-109.
— 431 —
members of the association. Occupiers of undertakings not subject to insurance can also adhere; and in that case their workers
and employees also become members of the association.
These institutions are administered by a governing body (onethird consisting of elected representatives of the employers, onethird of elected representatives of the insured, and one-third of
persons nominated by the Minister of Social Welfare), and by a
managing committee consisting of nine members, of whom three
are elected by each of the three groups of the governing body
respectively.
The cost of insurance falls entirely on occupiers of undertakings.
The financial system formerly adopted was that of annual distribution of capital charges; but since the Act of 11 April 1924 this has
been replaced by the system of distribution of annual compensation payments. Advances on contributions for providing an
adequate reserve to meet current liabilities are payable at the end of
each financial year.
Undertakings are grouped in 16 classes of risk for purposes of
distribution, with maximum and minimum co-efficients corresponding to each class. The co-efficient for each undertaking is then
determined within these limits on the basis of the special conditions prevailing.
Every association must constitute a reserve fund, the amount
payable to it being fixed annually by the Minister of Social Welfare.
Two-thirds of this amount are paid into a special fund belonging
to the association, and the remaining third into a reserve fund
common to the three associations, which is managed by the State.
Associations are subject to State supervision and control,
exercised by the Minister of Social Welfare. The Minister may
dissolve the managing committee of an Association and temporarily
appoint a commissioner in its place. The public authorities also
intervene for enforcing by legal process the payment of contributions in arrears.
Poland. — In Poland, in former German territory accident
insurance for industrial undertakings is dealt with by the Accident,
Department of the District Insurance Office at Poznan; for
agricultural undertakings, it is dealt with by the Agricultural
Accident Insurance office at Poznan. In those formerly belonging
to Austria, and, under the Act of 30 June 1924, throughout former
"Congress" Poland, the provisions of the Austrian Act of 28 December
1887 remain or have been put into force. There is a single general
mutual trade association for these territories, situated at Lvow.
— 432 —
In Polish Upper Silesia accident insurance is entrusted to a
single intertrade institution, namely: the accident insurance
service of the social insurance institution of Silesian Voivodeship
the headquarters of which is at Huta Krolewska.
Czechoslovakia. —• Insurance is also undertaken by general
mutual trade associations organised on a regional basis, of which
there are three with their headquarters at Prague, Brno, and
Bratislava respectively. The system of capital distribution has
been maintained.
Hungary. — Industrial accident insurance is administered by
a single fund with its headquarters at Budapest. This is an
autonomous organisation, of which all employers and workers
subject to insurance are members.
Under the Central Fund, district funds also exist, as local "offices
only, enjoying administrative but not financial independence. The
Central Fund and the district funds are partly responsible for
sickness insurance. The administrative expenses of the Fund are
repaid by the State. The financial régime in force is that of
distribution of annual compensation payments among employers.
Certain construction undertakings, however, whose principal place
of business is situated outside Hungary, and also some of a temporary character, are specially classified for risk purposes, and
distribution of capital is applied to them.
On the other hand, certain small undertakings and voluntary
insured pay fixed premiums. Reserve funds must be constituted,
and an advance on contributions may be demanded from employers
for this purpose. The management of insurance is supervised by
the National Workers' Insurance Office, which includes permanent
members appointed by the Government, and non-permanent
members elected by the employers and workers who are members
of the fund.
Serb-Croat-Slovene Kingdom. — Industrial accident insurance is
organised on similar principles in this country. The Central
Workers' Insurance Institute is a public corporation managed by
insured and employers. The local offices, or district institutes,
are merely executive organs ; while the Central Institute also controls
funds, not organised on a regional basis, in the transport and
mining industries. The financial régime in force is that of distribution of capital with constitution of reserve funds. The Minister
of Social Affairs is responsible for general administrative supervision.
— 433 —
Luxemburg. — There is one single insurance institution grouping
all employers subject to insurance. This association is a public
utility body working under State supervision and control, and
includes an industrial and an agricultural section. Each section
is administered by a general meeting and a managing committee
appointed by the former. The chairman of the general meeting
is not appointed from members of the association, but by the
Government. The association can appoint local agents for obtaining all the necessary information from undertakings with a view
to classifying them according to risk.
The financial system in force is that of distribution of capital
with constitution of a reserve fund; contributions are recovered
by the revenue authorities; scales of risk first settled by the
Government are verified at least every three years by the general
meeting of the association, which is competent to modify them
subject to Government approval. If the safety measures adopted
by an undertaking are considered inadequate, or if the frequency
of accidents is due to this cause or to defective supervision, the
co-efficient of risk for that undertaking may be increased 50 per
cent., and may be decreased 5 per cent, for all undertakings which,
by organising work on certain lines or adopting special safety
measures, involve less risk than was estimated when the scale was
drawn up.
Esthonial and Latvia. — A single inter-trade association exists
in these countries administered under the supervision and control
of the State. This body is administered by a general meeting,
by a managing committee elected by it, and by an administrator,
appointed by the committee outside members of the association;
and also by a supervisory finance committee elected by the general
meeting. The financial system is theoretically that of straightforward distribution of costs for each financial year; but a provisional contribution is assessed at the beginning of each year,
and these contributions have so far proved sufficient to cover
expenditure. The association must constitute a pension and a
reserve fund. A Workers' Insurance Council, including the
Minister of Labour, members nominated by the authorities, and
representatives of employers and insured, is responsible for the
supervision of the association.
Local supervision is exercised by insurance offices.
1
la Esthonia a second inter-trade association was set up on 1 January
1925 for industrial undertakings, municipalities, and co-operative societies.
28
— 434 —
Roumania. — A single inter-trade association has also been set up
by Roumanian legislation. This association has adopted two
financial systems : straightforward distribution of annual compensation payments with constitution of a reserve fund for the majority
of undertakings ; capital distribution for forestry, mining, construction work, earthworks, and all temporary undertakings. Employers'
contributions are collected by the Central Office of Crafts, Credit
and Workers' Insurance in the same way as State taxes. The
Central Office also exercises general supervision and control over
insurance. It is administered by a governing body, whose members
are appointed by Royal Decree for seven years. Two are nominated from a list of employers and workers elected by the general
meeting of the craft guilds including both employers and workers.
The Office is also responsible for the cost of the administrative
secretariat of the insurance association.
Japan. — The new Japanese legislation, the provisions of which
will only come into force after the issue of public administrative
regulations, is of a mixed type, in the sense that insurance is
undertaken partly by sickness insurance associations of which
both employers and insured are members, and partly by the State.
All employers, or groups of employers, habitually employing;
more than 300 workers subject to insurance, may set up an association, subject to the consent of more than half of the insured, and
to the approval of the competent Minister, who may also order
an association to be formed. Insurance covers both invalidity
and sickness. Persons subject to insurance, who are not members.
of an association, are directly insured by the State.
The cost of insurance undertaken by associations is divided
according to a scale laid down by Imperial Order, between the
Treasury, the insured, and employers. Contributions from the
insured may in no case exceed 3 per cent, of daily wages, from which
they are deducted.
Group V: Compulsory Assurance with a Specified Insurer, consisting of
a Special Institution (of a non-industrial character)
(Australia (Queensland) ; Bulgaria; Canada (Alberta, British Columbia, Manitoba, New Brunswick, Nova Scotia, Ontario) ; Italy (agricultural accidents) ; Norway ; Russia ; Switzerland.)
This category includes two kinds of insurance institutions;
autonomous institutions (Switzerland, Italy), State institutions.
administered by public officials in the other countries.
— 435 —
Generally speaking, moreover, insurance institutions are responsible for fixing rates, classifying undertakings according to
risk, and determining compensation rates. In some cases also,
they, are responsible for managing, wholly or partially, other
branches of social insurance.
1. — SUMMARY OF ONE LEGISLATIVE SYSTEM: SWITZERLAND1
Industrial accident insurance in Switzerland is entirely automatic
or, in other words, all persons employed in undertakings subject
to insurance are actually insured, without having to take any
action for this purpose. Occupiers of undertakings subject to insurance must of course notify their existence to the insurance
institution concerned, which is competent to investigate what.
undertakings are subject and to compel them to contribute to the
cost of insurance. If, however, owing to negligence or to error,
an undertaking which, although subject to insurance by legislation,
has not been placed within proper time on the list of those paying
premiums, the workers employed therein are nevertheless insured,
and are entitled to receive any compensation due in respect of
accidents notified within the prescribed period.
Only one insurance institution exists, the Swiss National Accident Insurance Fund, an organ completely independent of the
Federal administrative services, working under the supervision
and control of the Federal Council ; and in receipt of a subvention
from the Federal Government. A study of the system of guarantees
provided in Switzerland may therefore be confined to a study of
the functions, the administrative organisation, and the financial
management of the National Fund.
Functions of the National Fund 2
Its three principal duties are: (1) the supervision and control
of undertakings subject to insurance legislation; (2) the prevention of accidents; (3) the provision of insurance.
(1) When an undertaking included in the categories mentioned
in Article 60 of the Act of 13 June 1911 commences or ceases
working, the fact shall be notified by the employer or his representative within 14 days from the date of opening or closing. In
the event of an inevitable delay in notifying the date of opening,
»s Federal Act of 13 June 1911 concerning Sickness and Accident Insurance.
Cf. Les Annales de la Régie directe (février-mai 1923); La Caisse nationale
suisse. By A. TZAUT.
— 436 —
industrial accident premiums payable are doubled 1 . Some heads
of undertakings, however, may display negligence, or endeavour to
evade their obligations, while an employer may, on the other hand,
notify an undertaking not really subject to insurance. The Fund
therefore possesses all the necessary powers of enquiry and compulsion, and can decide as to the nature of undertakings, subject to
an appeal from its decisions by the employer to the Federal Social
Insurance Office. A further appeal from the decisions of this body
can be made to the Federal Council, which constitutes a final
Court of Appeal for all disputed points in connection with the
classification of undertakings.
(2) The National Fund must issue the necessary instructions
for the adoption of measures for preventing accidents, and must
prepare draft regulations of a general character to be issued by
the Federal Council, after consultation with the principal industrial
organisations. It must also supervise the application of such
instructions and regulations. The penalties provided for contraventions of the Act include increases in the rate of premiums,
pronounced by the National Fund ; also penal sanctions, including
fines and imprisonment, pronounced by the Cantonal courts, after
complaint from the National Fund.
(3) Insurance covered by the National Fund includes:
Compulsory insurance against industrial accidents;
Compulsory insurance against non-industrial accidents;
Voluntary insurance;
Voluntary insurance of third party risks.
The three latter branches will not be referred to in this study,
and it will be sufficient to indicate the nature of non-industrial
compulsory accident insurance. The beneficiaries are the same as
those insured against industrial accidents; but insurance also
covers all accidents not arising out of employment unless they
are due to dangerous and foolhardy exploits. Premiums are fixed
separately from those for industrial accident risks, and 75 per cent.
of their amount is borne by the insured themselves, the remaining 25 per cent, by the Confederation. Separate accounts are to
be kept for each of these four branches of insurance business.
The Administrative Organisation of the National Fund 2
The Fund is organised so as to ensure the necessary centralisation and at the same time to confer a considerable amount of in1
Art. 63 of the Act.
* Art. 41-46 of the Act.
— 437 —
dependence on its local organs. The central organs of the Fund are
the governing body with its commissions, and the management,
including a general secretariat and 9 sections. The governing body
consists of forty members: 12 representatives of compulsorily insured persons; 16 of private employers subject to insurance;
4 representatives of voluntarily insured persons; and 8 Federal
representatives.
The members of the governing body are appointed for 6 years
by the Federal Council on the advice of industrial organisations
covering a certain portion of country. The governing body draws
up the constitutional regulations of the Fund, makes proposals
to the Federal Council respecting the composition and nomination
of the management, classifies risks, publishes degrees of risk and premium rates, fixes the basis on which actuarial (mathématiques)
reserves must be constituted, and examines and approves the annual reports and accounts.
The management is appointed by the Federal Council on the basis
of proposals from the Governing Body, though it is not bound to
adopt them. The management is responsible for the administration
of the Fund and represents it.
The nine central services include the legal branch, the staff
branch, the accounts branch, a branch for the administration
of assets, fixed and liquid, and a medical service; a service for
deciding what undertakings are subject to insurance, and notifying them; one for preparing rates, classifying undertakings,
and compiling statistics ; an accident prevention service (including
inspection of undertakings, regulations, and study of safety appliances) ; and finally a service for supervising the settlement of accident claims through the intermediary of local agencies and the
pensions service.
The local machinery of the National Fund includes nine district
agencies: Lausanne, Chaux-de-Fonds, Berne, Basle, Aarau, Lucerne, Zurich, Winterthour, St. Gall, which are by no means of
equal importance. They are managed by a chief of agency, and
are divided into five sections: registration and classification of
undertakings ; premiums ; accidents ; accounts and cash ; and a medical section. They are also responsible for examining the working
conditions prevailing in undertakings, and for preparing proposals
for the inclusion or non-inclusion of undertakings in insurance, for
issuing preliminary notices regarding classification of undertakings,
for levying premiums, and for assessing and paying insurance
benefits exclusive of pensions or annuities. It will be seen there-
— 438 —
fore that, except for assessing benefits other than pensions, all
decisions are taken by the central services, the agencies being
merely organs of preparation and execution.
There are also principal and ordinary agencies, working under
the district agencies; of which only the former are organised in
the sense of possessing a chief of agency and a specialised staff.
Ordinary agencies are merely information organs, in close and
permanent touch with the district funds.
Agency services for all matters connected with Federal employees
in the Federal railways and the post, telegraph and telephone
services are entrusted by the National Fund to the Federal administrations concerned.
The National Fund was authorised (by Articles 54 and 55 of the
Act) to entrust its agency services to the sickness funds, and also
to transfer to the latter all business connected with the provision
of medical expenses and drugs for persons domiciled within their
district, and for the payment of allowances during the first six
weeks. Owing, however, to the difficulties of reconciling the
different interests of sickness funds and those of the National
Fund, the latter has not made any use of the faculty granted by
the Act.
The National Fund is under the supervision and control of the
Federal Government: and its fundamental regulations, and annual
reports and accounts must be submitted to the Federal Council
for approval. The Fund is exempt from taxation and its communications are posted free of charge.
Industrial organisations covering large districts can at their
own request" be called on by the National Fund to give their
advice as to classification of risks, degrees of risk and rates of
premium; regarding the basis adopted in fixing actuarial reserves;
regarding accident prevention, the conditions of voluntary
insurance, and the voluntary insurance of third party risks.
Technical and Financial
1. Classes of Risk and Rates of
Management1
Premium.
The Fund is managed on a fixed premium system subject to
annual revision. In fixing premium rates the various kinds of
undertaking are, under the Act, classified according to risk, each
class being in turn sub-divided into several degrees according to
risk. Every undertaking in a class 2 is graded according to the
1
2
Art. 102-114 of the Act.
Insured persons in the same undertaking may be grouped in different
degrees of risk.
— 439 —
preventive measures adopted or any other circumstance likely
to influence the degree of risk. Each class and each degree of
risk constitutes a financially autonomous group, which implies
that premiums payable should correspond to the amount the group
costs the Fund.
The National Fund has endeavoured to form groups of risk as
homogeneous as possible, including, that is, undertakings where
accidents occur approximately with the same frequency and therefore involve the same average cost per accident. This could only
be done by constituting a great number of classes ; and the premium
scale in fact includes nearly 400 of these. In these circumstances,
each class can only include a few undertakings, and the statistical
information regarding serious accidents is consequently insufficient
to estimate the risk of danger in each special case. In order,
however, to calculate sufficiently stable premium rates, a certain
number of classes presenting certain similarities are grouped together, and premium rates are then calculated by a method which
takes into account not only division into classes but also their
regrouping in wider categories. The basis adopted is the average
cost of "less serious" accidents in all undertakings in a class,
together with the average cost of "serious" accidents throughout
the group of classes as a whole.
Premium rates are calculated per mille of wages paid. The
amount of premium is assessed in advance on this basis provisionally
for the complete insurance year. Premiums must be paid at the
beginning of the insurance year. Should it become probable
in course of the year that the final amount chargeable will be
noticeably higher than the amount assessed provisionally, the Fund
can demand additional contributions. The final amount payable
is determined by the Fund at the conclusion of the insurance year,
on the basis of the total actual wages of the insured, calculated
from the wages lists which employers are obliged to keep.
2. Actuarial Reserves (réserves mathématiques).
The Fund must include in its liabilities the present value of the
probable liabilities of the Fund in respect of accidents occurring
during the current financial year. In other words an actuarial
reserve (or pension fund) for the pensions payable must be formed.
3. Reserve Fund.
The Reserve Fund is maintained by annual contributions fixed
by the Governing Body as a quota of premiums. These payments
must be continued until the Reserve Fund has attained at least
_ 440 —
half the average amount of premiums paid and of the Federal
grants received during the preceding five years. Half the cost of
administration is repaid by the Federal Authorities to the National Fund ; and a sum of 5 million francs is also granted to constitute a cash reserve; while an equal amount was also granted to
the Fund towards the creation of the Reserve Fund.
2. — SIMILAR LEGISLATION
Italy (agricultural labour accidents). — Under Italian legislation
several insurance institutions deal with this form of insurance.
The kingdom is divided into a number of districts, which are
in turn sub-divided into sub-districts, and each territorial division
is assigned to a specified insurance institution enjoying a monopoly
in the district. These may be either institutions already in existence before the adoption of the present Act and specially authorised
for the purpose, or a Compulsory Mutual Insurance Fund, or,
as is most frequently the case, the National Accident Insurance
Fund x. The National Fund is responsible for the general administration of agricultural labour accident insurance, and all the
above insurance institutions are subject to the supervision and
control of the Minister of Labour, who can order both the headquarters and the local branches of the institutions to be inspected.
All agricultural undertakings situated in a district where the
monopoly of insurance business has not yet been assigned to an
already existing institution or to a compulsory fund 2 are ex officio
insured with the National Fund. This body must set up a special
department for this form of insurance, with separate branches for
each district or sub-district. As already noted representatives of
the owners or occupiers of industrial undertakings, and representatives of the agricultural workers, sit on the Superior Council of the
National Fund. They are nominated by the employers' and
workers' organisations included in an official list drawn up by the
authorities.
Previously existing institutions must be authorised by the
Minister of Labour to cover insurance risks in a given sub-district.
The governing body of an authorised institution must consist of at
least nine, and not more than twelve members, of whom at least
1
Insurance institutions are sometimes trade associations; but the occupational character of these bodies does not affect the administration and general
management
of insurance business.
2
The assignment of a sub-district to the National Insurance Fund therefore
has only a temporary character.
— 441 —
a third must consist of persons insured by the institution and
nominated by the workers' organisations. Authorisation by the
Minister can be withdrawn.
Finally, the Minister of Labour may declare the formation of
a mutual fund compulsory in a given district ; and this fund possesses a monopoly of insurance business in the district assigned
to it from the date of the publication of the Royal Decree constituting it.
The management of insurance is conducted on uniform principles, in all the insurance institutions.
The financial system is one of fixed premiums for each financial
year, with the possibility of covering deficits occurring in one year
by raising premiums during the next, and by drawing on a reserve
fund.
As soon as the financial requirements of the year have been
determined, the probable cost is distributed between the persons
responsible for defraying the cost of insurance by a Commission
including an official of the Land Survey Department, an agricultural expert appointed by the Ministry of Agriculture, two representatives of the insurance institution nominated by that body,
and two persons subject to insurance chosen by the Minister of
Labour in agreement with the Minister of Agriculture from among
owners, métayers, or farmers in the sub-district.
Distribution can be effected according to two methods; either
proportionately to the area of the land under cultivation and the
nature of the crop (rate per area and per class of crop) ; or proportionately to the amount of the land tax levied on agricultural
owners (rate per tax). The Minister of Labour shall decide, in
agreement with the Minister of Agriculture, which of these two
methods of distribution is to be adopted in each sub-district.
Contributions after being assessed are levied in the form of
additional centimes of the land tax.
The central administration of agricultural accident insurance is
exercised by the National Fund ; which is responsible for collecting
all the reports and balance sheets communicated by insurance
institutions and uniting them in a single report. The Fund must,
at the request of institutions, pay the sums required for installation
expenses and current expenditure, in the form of repayable loans,
subject to the conditions and the guarantees approved by the
Minister. The Fund is also empowered to invest or receive a»
a deposit the reserve funds constituted in the various districts or
sub-districts.
— 442 —
A special committee also exists, the Social Insurance and Provident Council, which participates in the administration of agricultural accident insurance. This Committee includes the DirectorGeneral of Labour and Social Welfare, and four members of the
Council nominated by the Minister of Labour.
Norway. •— A public institution, the Royal Institution for Social
Insurance, administered by public officials under a State guarantee,
enjoys a monopoly of insurance. This body insures industrial workers, seamen, and fishermen. The administrative organisation of the
Office is regulated by Royal Order; and inspectors, appointed by
the communal authorities but acting directly under the orders of
the Office, act as its local agents.
Accident insurance is automatic (except for fishermen), that is
to say that the risk of industrial accident is covered in the case
of persons within the scope of the law, even if their employers
have neglected to notify their undertakings to the insurance institution.
The Office assesses the compensation due for accidents, and is
responsible for payment.
Classes of risk and premium rates are determined by the Crown,
subject to revision every five years by the Storthing. The Office
classifies undertakings according to risk ; and employers can appeal
to a special Commission composed of seven members, 3 appointed
by the Crown and 4 by the Storthing. Undertakings which effectually adopt the safety measures proposed can obtain a decrease
of premium.
The financial system provides for the constitution of the capital
value of annuities payable; while the cost of administration is
borne by the State.
Fishermen's insurance is maintained by premiums paid in fixed
proportions by fishermen, the State, the Fishermen's Fund and
the Harbour Fund. A list of persons compulsorily subject to
insurance is issued each year by the communal authorities; and
communes are responsible for the payment of premiums.
Bulgaria. — The National Social Insurance Office enjoys a
monopoly of insurance business, is administered directly by the
State, and is attached to the Labour Department of the Ministry
of Commerce, Industry and Labour. It includes an administrative, a hygiene and an accountancy section. Its local organs
consist of labour inspectors, local commissions for estimating loss
of working capacity, and arbitration courts; while the communal
authorities act as auxiliary organs.
— 443 —
The financial system consists in distribution of annual compensation payable according to the degree of risk and the amount of
wages.
Canada. — Funds directly administered by the State are also
met with in those Canadian Provinces where insurance is compulsory, but this form of insurance is not, strictly speaking, social
insurance, but consists rather of individual insurance rendered
compulsory in order to exonerate the employers from liability and
to secure the payment of compensation.
In the provinces of Alberta, British Columbia, Manitoba, New
Brunswick, Nova Scotia and Ontario a Board of Compensation
exists which is responsible for the financial management of insurance, and also possesses judicial functions. The Board, generally
speaking, is competent to deal with all questions affecting industrial
accidents. It is administered by public officials; and the cost of
administration is borne by the Provinces, which in turn determine
classes of risk and decide in which categories employers shall be
classified.
In Ontario there is a standard rate fixed for compensation
assessment, and employers who violate safety laws may have to
pay a penalty up to 25 per cent, more than the standard rate, while
careful and progressive employers may receive a reduction from the
rate of up to 30 per cent. Thus, by this "merit system" for employers' assessments, there can be a considerable variation in
assessment between an employer who is doing his best and him
who allows the worst to happen in his factory.
The financial system is one of provisional contributions levied at
the beginning of the financial year; and the various regulations
provide in theory for these contributions being regarded as fixed
premiums. If, however, contributions levied at the beginning of
the financial year appear during that year to be insufficient, fresh
contributions may be levied. Conversely if the insurance resources
available appear sufficient, the Board is competent to reduce contributions, or even to remit them entirely.
The Board must maintain actuarial reserves, special reserves for
"catastrophe" risks, and also a supplementary reserve fund. Public
resources may be used, generally speaking, to provide the Board
with working capital, but the general principle is that the financial
management of insurance shall be entirely independent of public
finances.
In British Columbia the Board has formed a special reserve fund
called the "medical fund," from which the necessary amounts are
— 444 —
levied, either to cover the cost of medical benefit, or to reimburse
those employers who themselves provide this benefit with the
permission of the Board. In New Brunswick the State Fund,
managed by the Board, is authorised to re-insure. In Ontario
undertakings are classified by law in three categories: those
in the first class are subject to insvirance with the Board; in
the second class, employers are liable for the payment of compensation under Workmen's Compensation legislation in force, but
are not bound to contribute to the Accident Fund administered
by the Board; finally, undertakings belonging to neither of these
two categories are subject to the employers' liability rules.
Russia. — The social insurance system is a unified one, and the
same institutions insure against temporary incapacity, permanent
incapacity, unemployment, and the cost of medical benefit. The
occupational character of industrial accidents giving rise to compensation only affects the system of distributing the cost of insurance. The benefits of insurance are in theory granted to victims
or to their dependants without regard to any possibility of recovering the expenditure incurred from the particular industry involved.
It would seem, however, in fact that since the application of the
New Economic Policy, there is a tendency to make actual benefits
proportionate to the real financial resources obtained by contributions levied from the particular industry involved for this
purpose.
The administrative organisation of insurance includes Local
Funds, on the one hand, which are regular insurance institutions,
and Government services on the other, whose main functions
are to supervise and control the application of relevant Acts
and Regulations by the local institutions; but which also and
to a certain extent and for certain classes of risk, namely unemployment and permanent invalidity, act as insurers.
Insurance is administered centrally by the Central Insurance
Office, a public service attached to the Commissariat of Labour
and administered by public officials. It draws up instructions for
the application of legislation, determines the mode of levying
contributions, and may appoint inspectors to supervise the working of the Government offices and the local institutions.
A departmental office administered by public officials exists in
each Government, whose attributions are similar to those of the
Central Insurance Office. It also administers unemployment and
permanent invalidity insurance directly, as well as the insurance
in favour of dependants in case of death.
— 445 —
The local institutions are mutual inter-trade associations on a
territorial basis, and include all the insured persons resident in the
district. Institutions of an occupational character also exist for
certain mobile workers (railways, river transport, construction
work, etc.). Local institutions in fact only insure against temporary
incapacity, so far as industrial accidents are concerned. If the
number of insured in any given district is not sufficient to justify
establishing an institution, insurance agencies are set up or representatives are appointed.
The financial system is that of distribution of annual expenditure
among undertakings subject to insurance. There are separate
funds for temporary incapacity (Fund A managed by the local
institutions), for permanent incapacity and for unemployment
(Funds B and C managed by the departmental offices), and for
medical benefits (Fund D managed by the departmental public
health office).
In addition to these, two National Funds also exist, the National
Social Insurance Reserve Fund, administered by the Central Office
and maintained by a levy on the payments to Funds A, B, and C,
and from possible profits from corresponding branches of insurance ;
and the National Medical Reserve Fund, maintained by a levy on
the resources and profits of Fund D. This Fund is administered
by the Commissariat of Public Health.
The contributions for which each undertaking is liable are based
on the class of risk involved and the wages paid.
Insurance premiums are generally paid by the employer in the
case of private undertakings; as trading costs by the undertaking
in the case of independent nationalised undertakings; as trading
costs by the management of a group of undertakings, in the case
of a group of independent nationalised undertakings; and by the
State itself in the case of nationalised undertakings figuring on
the budget, unless the State itself directly insures benefits without
having recourse to insurance funds.
PART V
PROCEDURE FOR OBTAINING
COMPENSATION AND SETTLEMENT
OF DISPUTES
After discussing the rights and obligations of the two parties as
determined by the law, the next point to be considered is the manner
in which the various laws ensure that these regulations will be
respected and applied. Once the accident has taken place, it
becomes necessary to define, firstly, what procedure must be
adopted by the injured person to obtain compensation for his
injury, whether his claim is settled by amicable agreement or is
disputed and leads to litigation, and, secondly, what authorities
are empowered in the latter case to settle the dispute.
Hence it is that legislation sets up machinery which begins to
work as soon as the event takes place which constitutes the occurrence of the risk. In general, one stage of the procedure is always
passed through, whatever the manner in which the claim is settled,
whether by amicable agreement or by the decision of the competent
judicial authorities. If, however, the settlement is effected by
amicable agreement between the parties or on the friendly intervention of the competent authorities, matters go no further. But
such settlement by agreement is not always possible, and the
administrative or judicial authorities are then called on to settle
the dispute; the rest of the machinery is set in motion, the litigious
stage of the procedure having been reached.
The subject at present under consideration will therefore be
considered under two heads. The first chapter, dealing with
uncontentious procedure, will cover the notification of accidents,
enquiries, and medical certificates; the second, dealing with litigation, will cover the nature of proceedings, authorities, awards
and appeals. Finally, the conclusions which suggest themselves
will be briefly surveyed.
CHAPTER I
DNCONTENTIOUS PROCEDURE
Immediately a worker suffers an accident during the course of
his work he may claim compensation for any injury he has sustained.
In nearly every case, however, the law requires him to go through
certain formalities before the amount of compensation or pension
is definitely settled.
In the first place, either the employer or the worker or his
dependants, or sometimes even another person, must notify the
accident to certain persons or to the competent authorities.
Secondly, an enquiry is necessary to determine exactly where the
responsibility lies. Finally, the production of a medical certificate
is indispensable under the law, irrespective of the notice and the
minutes of the enquiry.
§ 1. — Notification of the Accident
Notification of the accident is essential, both as a public and
police measure, and as the first step in proceedings before the
administrative or judicial authorities who, if need be, may be called
on to decide. Although the form of the notice may vary (for
seamen, for instance an equivalent and more appropriate formality
is substituted, that of a record in the ship's log) the majority of
laws always insist on notification on pain of various penalties.
The subject will be considered under the heads of the object of
notification, the cases in which it must take place, the persons
making and the authorities receiving the notification, the form to
be used and the points covered.
OBJECT OF NOTIFICATION
Notification is intended to fulfil certain definite ends. Firstly,
the official notification of an accident provides, from the legal
point of view, the starting point of all proceedings, in particular
the commencing date of the various periods fixed by law for making
a claim to recover compensation, or with respect to the forfeiture
— 449 —
of the rights of the injured person. In every country the date of the
accident is considered the starting point for the period within
which proceedings must be taken, and this starting point cannot
be determined unless the accident is notified.
Secondly, notification makes it possible to obtain immediate
particulars of the accident before too long a period has elapsed. If
an enquiry were not undertaken until some weeks after the accident,
the persons concerned, both employer and worker, and even the
witnesses might produce varying statements. They would no longer
remember so clearly. At the time of the accident, on the other
hand, there is more likelihood of obtaining agreement. Certain
facts are still indisputable, and it is easier to determine the question
of responsibility. In the majority of cases the enquiry cannot
take place immediately, and in the interval pressure may be
brought to bear on the witnesses. This danger is averted by an
immediate notification. Any subsequent manœuvres may then
easily be counteracted. Speedy and detailed notification is therefore
essential to the efficiency of every enquiry. It allows of establishing
apparently insignificant details which often prove of capital
importance to the investigator.
The importance of notification has not been ignored, and in
nearly every country the law requires the employer to notify
within a very brief period the date, time, and place of the accident,
the circumstances in which it took place, the names and addresses
of witnesses, and often the names and addresses of the medical
practitioners who gave first aid to the victim. Failure to notify is
often punished by very severe penalties, high fines or imprisonment
up to as much as six months.
Thirdly, under certain laws the notice contains a clause by which
the worker is secured first aid in a very effective manner. The
employer is instructed to obtain the necessary medical assistance
for the injured person without delay, and the notice must state
whether the worker has been given first aid and what doctors
gave it. If the injured person is not given first aid, the authorities
may immediately appoint practitioners to treat the case, with a
view to preventing complications, promoting recovery, and, if
possible, preventing disablement.
Thus, in the Argentine Republic, the employer must immediately
provide for medical treatment and notify the National Labour
Department within forty-eight hours of the names and addresses
of the practitioners he designates for the purpose.
A somewhat similar system is in force in Ecuador.
29
— 450 —
In Spain, the law provides that the medical practitioner selected
by the worker may co-operate in attendance with the practitioner
nominated by the employer. If the two practitioners disagree,
the authorities can call on a practitioner of the municipal relief
institution to give his opinion, which may be used, if need be, as
evidence before the judge of the court of first instance.
In Salvador, the alcalde, on receipt of the notice, which must
be given within twenty-four hours, must arrange for the treatment
of the injured person by two certificated surgeons or medical
practitioners.
Thus, in nearly every country notification is a fundamental
formality, which serves as a starting point for the periods fixed for
procedure and as a basis for the determination of responsibility.
Its very precision and completeness, besides serving as a guarantee
for the worker, offer a certain means of arriving at definite conclusions with respect to responsibility.
C A S E S TO B E
NOTIFIED
Whereas under certain laws notification is necessary for every
accident, under others it is compulsory only for certain specified
classes of accidents. In a general way, the term "accident" is
interpreted very widely. In view of the obligation to notify within
a very short period and of the difficulty often experienced in
judging the exact degree of seriousness of the accident, it is a
matter of some delicacy to distinguish between accidents from the
point of view of their presumed origin. Consequently, most laws
specify in which cases the persons concerned are required to notify,
their discretionary powers being reduced to a minimum in this
respect.
Compulsory Notification
In many countries all industrial accidents must be notified
without distinction. In the Argentine Republic (Sections 17 and 18
of the Regulations of 14 June 1916 for the administration of the
Act of 11 October 1915); Bolivia (Sections 1, 11, 12 and 13 of the
Act of 17 January 1924); Brazil (Section 18 of the Act of 15 January 1919); Bulgaria (Section 9 of the Act of 6 March 1924);
Denmark (Sections 44 and 64 of the Act of 6 July 1916) ; Guatemala
(Sections 1 and 12 of the Decree of 21 November 1906); India
(Act of 5 March 1923); Netherlands (Section 66 of the Accident
Insurance Act of 1901-1921-1923; Section 62 of the Act of 1922-24
on the accident insurance of agricultural workers); Roumania
— 451" —
(Section 158 of the Act of 25 January 1912, amended by Acts of
26 April and 31 May 1913) ; Spain (Section 7 of the Act of 10 January
1922) — in these countries notification is compulsory for all
accidents. The Cuban law does not specify which accidents are
to be notified, but it would appear from the regulations that
notification is compulsory for all accidents (Section 25 of the Act
of 12 June 1916).
Conditional Notification
Certain laws, on the other hand, while very strict on the principle
of notification, do not apply it absolutely. The obligation to notify
is subject to certain conditions, such as bodily injury to the victim
of the accident, incapacity for work, or a bodily injury which
may be expected to lead to the payment of compensation.
Thus, in Belgium, notification is compulsory for all accidents
likely to lead to incapacity for work (Section 24 of the Act of
24 December 1903).
In Chile, notification is compulsory for all accidents resulting
in incapacity for work (Section 32 of the Act of 8 September
1924)1.
In Finland, notification is compulsory only for accidents likely
to result in the temporary or permanent disablement of the inj ured
person (Section 25 of the Order of 18 August 1917).
Under French law, all accidents resulting in incapacity for
work must be notified. It is the practice of the courts and appeal
courts to consider any injury as an industrial accident if it is caused
by or during work. The law does not require that the accident
itself should be due to a chance or unexpected cause, nor that it
should be closely connected with the work assigned to the worker
(Section 11 of the Act of 9 April 1898 amended by the Act of
22 March 1902).
In Peru, notification is compulsory for all accidents leading to
incapacity for work (Section 36 of the Act of 20 January 1911).
Under Swiss Federal law, all accidents must be notified if they
lead to, or are likely to lead to, sickness or disablement (Section 69,
subsection 1, of the Act of 13 June 1911).
According to the regulations in force in Ecuador, any bodily
injury suffered during or in consequence of his employment by a
worker, day-labourer, or apprentice must be notified if it leads to
1
It should be observed that under the provisions previously in force,
notification was compulsory only for accidents involving loss of working capacity for more than four days (Section 13 of the Act of 27 December 1916 and
Sections 60 and 61 of the Regulations of 19 June 1917).
— 452 —
total or partial incapacity for work. The Act defines workers,
day-labourers and apprentices as persons ordinarily carrying out
• manual labour away from home, whether the work is paid for or
not (Section 1 of the Act of 30 September 1921 and Section 6 of the
Regulations of 22 April 1922).
In Panama, notification is compulsory for all accidents occurring
during work or directly caused by the work. The term "accident"
is taken to mean any bodily injury suffered by workers or employees
in all classes of employment or industry carried on in the territory
of the Republic (Sections 1 and 18 of the Act of 16 November 1916).
Under the system in force in Salvador, notification is compulsory
for all accidents resulting in bodily injury which are met with by
the worker during or in consequence of work performed on account
of another, the term "worker" being taken to mean any person
who is habitually employed in manual work elsewhere than in
his home, whether paid for or not, and whether employed by the
day or the piece, in virtue of a verbal or written contract (Sections 1
and 3 of the Act of 11 May 1911 and Section 5 of the Regulations
of 7 September 1911).
In Esthonia and Latvia, notification is compulsory for all
accidents met with during or in consequence of the work and
resulting in disablement for which a pension or compensation is due
(Section 36 of the Russian Act of 23 June-6 July 1912, amended by
the Act of 18 June 1917).
In Sweden, all accidents must be notified which involve the
payment of compensation to the injured person (Section 22 of the
Act of 17 June 1916).
In certain countries, while the notification rests on the incapacity for work due to the accident, it has been thought necessary
to fix a minimum period for such incapacity below which notification is not compulsory.
In Austria (Sections 29 and 30 of the Act of 28 December 1887
and 20 July 1894, amended by the Acts of 29 April 1912, 21 August
1917, and 12 April 1924), Czechoslovakia (former Austrian Insurance
Acts amended by the Act of 10 April 1919 and Sections 29 and 30
of the Act of 12 August 1921), Germany (Sections 1552-1558 of the
Imperial Insurance Act of 19 July 1911), Luxemburg (Section 16 of
the Grand Ducal Decree of 23 January 1903), Poland (German
Insurance Act and former Austrian Insurance Acts), Uruguay
(Section 32 of the Act of 15 November 1920), notification is compulsory for all accidents resulting in total or partial incapacity for
work lasting for more than three days.
— 453 —
In Lithuania, notification is compulsory for all accidents arising
during or in consequence of the work and resulting in bodily injury
involving incapacity for work lasting for more than three days
(Section 1 of the Act of 2 June 1903 on Industrial Accidents to
Persons employed in Factories, Mines and Metal Works). Under
the Act of 28 June 1912 notification is also compulsory for accidents
to railwaymen and transport workers on railways.
In Norway, notification is compulsory for all accidents involving
incapacity for work lasting for more than three days, provided that
the undertaking in which the accident takes place is liable to insurance (Act of 13 August 1915, amended by the Acts of 19 July 1918
and 11 July 1919).
For seamen, the notification must be accompanied by a reference
to the ship's log and is compulsory for any accident which may
involve the payment of compensation (Acts of 18 August 1911 and
16 February 1923).
In Great Britain, according to the two Acts of 21 December 1906
(the Workmen's Compensation Act and the Act on Notice of Accidents in mines, quarries, factories, and workshops) as amended by
the Act of 16 November 1923, notification is compulsory for all
accidents in mines, quarries, facto
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