The against a person liable over to him must be enforced by arbitra- Various rules in the Workmen's Compensation Rules, 1898, have also been relied on, but they carry the case no further. Rule 19 deals with proceedings in arbitration taken by a workman, and provides for notice by a respondent who claims indemnity to the person from whom he claims it; and rule 20 provides for the appearance of the person against whom C. A. 1904 EVANS V. Соок Collins M.R. C. A. 1904 EVANS V. Соок. Collins M.R. indemnity is claimed, and, in default, that he is to be deemed to admit the validity of the award. Those rules have no application to the present case, in which there has been no arbitration. It would require an express enactment to take away the right of the plaintiff to follow out his remedy in the Court which he selects, and I can find nothing in the Act to restrict that right, nor can I find anything from which a restriction can be implied. The appeal of the insurance company fails, and the appeal, at their instance, of the defendant must also be dismissed. STIRLING L.J. I am of the same opinion. The plaintiff was in the position of an undertaker within the meaning of s. 4 of the Workmen's Compensation Act, 1897, and the defendant was a sub-contractor for a portion of the work which the plaintiff had contracted for. While the work was being carried on a workman in the employment of the defendant met with an accident, and applied to the plaintiff, as he had a right to do under s. 4, for compensation for the injury that he had sustained. The amount of the compensation to be paid was agreed between the plaintiff and the workman, and the plaintiff claims in this action an indemnity from the defendant in respect of the sums paid, or hereafter to be paid, to the workman under the agreement. The right to an indemnity is expressly conferred by this section, as the defendant is a person who would have been liable independently of the section. There is nothing in the section saying how the right is to be enforced, and therefore, unless something can be found in the Act to the contrary, the plaintiff would be entitled to sue in the High Court. The clause of the Act principally relied on as excluding the right to sue in the High Court is s. 1, sub-s. 3. It is said that a question has arisen as to the liability to pay compensation, and that this must be settled by arbitration in accordance with the provisions of the Act, but no such question has arisen between the workman and the undertaker, the plaintiff. As between them the question of amount has been settled by agreement. It is said that that agreement is not such an agreement as is referred to in the sub-section in the words "if not settled by agreement," because that expression contemplates an agreement binding, not only on the workman and the employer, but on any other person liable to indemnify the employer. All I can say is that I do not find that in the Act. It would be hard on the workman if we were obliged to hold that he could not make an agreement with the undertaker, from whom he was claiming compensation, without getting his employer's sanction. It seems to me that there is no hardship on the employer, for he has a remedy under clause 12 of the First Schedule to the Act, under which a weekly payment can be reviewed at the request either of the employer or the workman, and thus the amount of indemnity payable can be ascertained. The judgment of the learned judge in this case was framed upon that view of the Act, for his order dealt with the amount due up to the time of the judgment, but as to the extent of future liability contained a declaration which makes that liability depend on the amount that the plaintiff may be called on to pay. That leaves the defendant at liberty to make application to review the weekly payment, and if he does so successfully his future liability will be as then settled. MATHEW L.J. I am of the same opinion. It is clear that the compensation dealt with in s. 1, sub-s. 3, of the Act is the compensation payable to the workman, and does not relate to a claim which arises upon an indemnity. In this particular case the plaintiff was under a liability to compensate the workman, and the amount would be arrived at by one of the methods indicated in the Act. It was arrived at by an agreement between the plaintiff and the workman, and when it was determined the provisions of s. 4 came into operation giving the plaintiff a right to an indemnity from the defendant. There is nothing in the Act that obliges the person claiming an indemnity to have recourse in enforcing it to the procedure laid down in the Act for another purpose. He has therefore the right to enforce it in the ordinary way in which a contract of indemnity can be enforced. To hold otherwise would be to make a C. A. 1904 EVANS V. COOK. Stirling L.J. C. A. 1904 EVANS remarkable addition to the words of the Act, and there is nothing to justify such a course. I agree, therefore, that the appeal must be dismissed. v. Соок Appeal dismissed. Solicitors for plaintiff: Wynne, Baxter & Keeble. Solicitors for defendant: Field, Roscoe & Co., for Dowson & Wright, Nottingham. Solicitors for third parties: Pritchard, Englefield & Co. A. M. C. A. 1901 Oct. 28. [IN THE COURT OF APPEAL.] MILLARD, APPELLANT v. BALBY-WITH-HEXTHORPE Local Government — Streets - Paving Expenses, Liability for-Owner of Notice was given by a local authority to the owners of premises in a street, requiring them to execute works, under s. 150 of the Public Health Act, 1875, and, the owners not complying with the notice, the works were executed by the local authority. Subsequently, the expenses of the work were duly apportioned, and the proportionate sums due from the owners respectively were demanded. One of the owners to whom the notice had been given sold his premises after the completion of the work, but before the apportionment of the expenses and the demand of the sum apportioned in respect of the premises : Held, that he was liable to pay that sum under s. 257 of the Public Health Act, 1875, as having been the owner of the premises when the works were completed. Dictum in Reg. v. Swindon Local Board, (1879) 4 Q.1 B. D. 305, disapproved of. APPEAL from the judgment of a Divisional Court (Lord Alverstone C.J., Wills J., and Kennedy J.) upon a case stated by justices of the West Riding of Yorkshire on proceedings taken before them by the respondents to recover from the appellant a sum of 451. for street expenses. Carr Hill was a street within the respondents' district, not C. A. 1904 MILLARD 1. URBAN COUNCIL. being a highway repairable by the inhabitants at large, and on and before June 8, 1899, it was not sewered and paved to the satisfaction of the respondents. On June 8, 1899, the respondents served notice on all the owners (including the BALBY-WITHappellant) of premises fronting such parts of Carr Hill as HEXTHORPE required to be paved, requiring them to have the work done. The notices were not complied with, and the respondents executed the works, which were completed on December 4, 1901, on which date the appellant was still the owner of premises fronting such parts of Carr Hill as required to be paved. On March 20, 1902, the appellant sold the premises, which were conveyed to the purchaser on April 25, 1902. The surveyor to the respondents duly apportioned 451. as the proportion due from the appellant in respect of the expenses. Written notice of the apportionment, dated November 18, 1902, was, on November 24, 1902, served personally on the appellant by the respondents, in accordance with the Public Health Act, 1875, s. 257, and he did not within three months from the service dispute the same by written notice. On May 20, 1903, a formal demand in writing for payment of the 451. was served by the respondents on the appellant personally in accordance with the Public Health Act, 1875, s. 257. The justices were of opinion that the appellant was liable to pay the sum demanded by the respondents, and they made an order accordingly. The Divisional Court reversed the decision of the justices on the authority of a dictum of Cockburn C.J. in Reg. v. Swindon Local Board (1) to the effect that, in order to be liable under the Public Health Act, 1875, s. 257, a person must continue to be owner when the expenses are demanded from him. The respondents appealed. Macmorran, K.C., and Joshua Scholefield, for the respondents. The words of s. 257 of the Public Health Act, 1875, clearly provide that the person who was the owner of the premises when the works were completed is liable for the expenses. The observations of Cockburn C.J. in Reg. v. Swindon Local (1) 4 Q. B. D. 305. |