The respondent was the occupier of a cotton factory, and subject to all the provisions of stat. 7 & 8 Vict. c. 15. Jane Greenwood was employed in the factory as a weaver: she was a girl under the age of eighteen years, and so registered on the books of the factory. On the 21st March, 1867, at half past five p. m., she was tripped up by and fell over a rope in the factory which for a practical joke had been tied across the passage between the looms by a nephew of the respondent, who was employed by him in the factory as a responsible servant. In consequence of this fall over the rope Jane Greenwood was injured and sustained a severe sprain in her right wrist and arm by her having fallen against a machine in the factory, but which machine was not in motion. She did not leave the factory but remained till six o'clock in order to await the return of the respondent from Manchester to tell him of the accident, and did so. After the accident, and until six o'clock, she endeavoured to keep her looms running, but could not do her usual quantity of work. She returned to the factory next morning at five minutes past six o'clock, but she so returned under an arrangement with her mother that, as they were poor and could not afford the loss of wages which would be consequent on her absence, she should go and try to work as she was best able, and remain there until her mother had lighted her fire and performed her domestic duties, when she was to come and take her daughter's place and work till her recovery, and thus by this arrangement reduce the loss of wages. The girl could not raise her arm above her waist or stretch it out, and was obliged to use her knee and mouth and one hand, with a slight

1868.

LAKEMAN

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A 1868.

LAKEMAN

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STEPHENSON.

assistance from the injured hand, for the purpose of placing her cotton "cop" into the shuttle. Her mother came at twenty-five minutes past six and relieved her, and she was obliged to go home at five minutes after seven o'clock, having remained till that time in order that her mother might shew the respondent the state of her arm. She then left, and put herself under the care of a surgeon, who put her arm in splints, in which it was kept for five days. She returned to the factory after the fifth day, but contrary to the advice of her surgeon, and the bandages were not removed from her arm till after the 16th April.

No notice of the accident was sent to the certifying surgeon as required by stat. 7 & 8 Vict. c. 15. s. 22., but the respondent contended that inasmuch as Jane Greenwood did actually return on the morning of the 22nd March, and as he saw her at her loom, no such notice of the accident was required. The appellant contended that that section required all accidents to be reported which prevented the injured person from returning to his work. Therefore the respondent ought to have sent notice of the accident to the certifying

surgeon.

The justices dismissed the summons on the ground that as the girl did actually return to her work before nine o'clock of the day following the injury, no notice was required to have been sent by the respondent to the certifying surgeon. They were of opinion that it was not for them to look into the quantity or quality of the work, or whether it was done well or ill, or more or less expeditiously, or whether she continued at her work until breakfast time.

If the justices were wrong in having dismissed the summons on that ground, then they submitted to the Court whether this accident was such an accident as was intended by the section.

It was not proved or alleged that any arrangement existed on the 21st March between the respondent and Jane Greenwood that she should return to her work before nine o'clock of the morning of the following day, nor that her return was colourable on her part to avoid the necessity for a notice to the factory surgeon.

Stat. 7 & 8 Vict. c. 15. s. 22. enacts, "That if any accident shall occur in a factory which shall cause any bodily injury to any person employed therein which shall have been of such a nature as to prevent the person so injured from returning to his work in the factory before nine of the clock of the following morning, the occupier of the factory, or in his absence his principal agent, shall, within twenty-four hours of such absence, send a notice thereof in writing to the surgeon appointed to grant certificates of age for the district in which the factory is situated, in which notice the place of residence of the person injured, or the place to which he may have been removed, shall be stated; and the surgeon shall send a copy of such notice to the sub-inspector of the district by the first post after the receipt thereof."

The Attorney General, Sir J. B. Karslake (Hannen with him), for the appellant.-First. There was no returning to work within the meaning of stat. 7 & 8 Vict. c. 15. s. 22. [Lush J. The notice is to be sent to the surgeon "within twenty-four hours of such absence."] That is, absence from work in the

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LAKEMAN

v.

[STEPHENSON.

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LAKEMAN

V.

STEPHENSON.

factory. Here the girl returned to the factory, but was unable to do her ordinary amount of work. [Lush J. If the factory hand is there, must the foreman know whether he is incompetent to work?] Suppose he did not do any work. [Lush J. It would be known whether his loom was in motion.] He might be employed in other work. [Lush J. Suppose, in the present case, the girl had worked on till the middle of the day. Blackburn J. But here she only entered an appearance for her mother.] Knowledge of the injury caused by the accident is not necessary. By sect. 41 the occupier of any factory in which any offence against the Act is committed, is deemed to have committed the offence, and is liable to the penalty. But here the respondent knew of the injury to the girl the night before; and the fact of her mother coming at 9 o'clock the next morning in her place was notice to the person who had superintendence of the workpeople.

Secondly. This was an accident within the meaning of sect. 22. By sect. 23 the certifying surgeon appointed by the inspector of the district under sect. 8 shall, after having received notice of the accident, proceed to the factory and investigate the nature and cause of the injury, and, by sect. 24, if the injury is received from the machinery of any factory the Secretary of State may empower the inspector to direct an action to be brought in the name and on behalf of the person injured. Also, sect. 59 imposes a penalty for not fencing the several parts of the machinery. It was the intention of the Legislature that the cause of every accident in a factory, causing bodily injury, should be investigated by

XXXI. VICTORIA.

means of a notice to the certifying surgeon, who is to send a copy of it to the sub-inspector of the district.

The respondent did not appear.

COCKBURN C. J. The appellant is right on both points.

First. The true meaning of sect. 22 of stat. 7 & 8 Vict. c. 15. is, that notice of the accident must be sent to the certifying surgeon unless the person injured not merely returns the following morning to the factory with the intention of working but is practically in a condition to work. Here the girl when she got to the factory could not work as usual; and she went home so soon as her mother was able to come and take her place. Therefore she did not return to the factory with a capacity to work. And her master must be taken to have had full notice of the injury caused by the accident.

Secondly. The accident in the present case was not from any cause connected with the machinery. But sect. 22 is general in its terms, "that if any accident shall occur in a factory" followed by certain consequences it shall be reported to the surgeon. Therefore we are not to look to the origin of the accident.

BLACKBURN, MELLOR and LUSH JJ. concurred.

Case remitted.

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LAKEMAN

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STEPHENSON.