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Revised Statutes of Newfoundland 1990


CHAPTER E-10

AN ACT RESPECTING THE LIABILITY OF EMPLOYERS FOR INJURIES TO WORKERS IN THEIR SERVICE

Analysis

1. Short title

2. Definitions

3. Where employer is liable

4. Where worker not entitled to compensation

5. Amount of compensation recoverable

6. Penalty to be deducted from compensation

7. Liability for fault, etc. of sub-contractor

8. Notice of injury and limitation of actions

9. Prohibition

10. Application of sections 11, 12 and 13

11. Personal injury caused by defect or negligence

12. Contributory negligence

13. Damages


Short title

1. This Act may be cited as the Employers' Liability Act.

RSN1970 c110 s1

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Definitions

2. In this Act

(a) "employer" includes a corporation and an unincorporated organization of persons and the legal representatives of a deceased employer;

(b) "person who has superintendence entrusted to him or her" means a person whose sole or principal duty is that of superintendence; and

(c) "worker" does not include a domestic servant, but means a person who is a labourer, servant in husbandry, person who is fully qualified in his or her trade, artificer, hand-crafter, miner or person employed in works for the generation, control or management of electric power, or a person otherwise engaged in manual labour, whether under the age of 19 years or above that age, who has entered into or works under a contract with an employer, whether the contract is express, implied, oral or in writing, and whether it is a contract of service or a contract personally to execute a work of labour.

RSN1970 c110 s2; 1971 No 71 s8

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Where employer is liable

3. Where personal injury is caused to a worker

(a) by reason of a defect in the condition of the ways, works, machinery or plant, connected with or used in the business of the employer;

(b) by reason of the negligence of a person, in the service of the employer, who has a superintendence entrusted to him or her, while in the exercise of that superintendence;

(c) by reason of the negligence of a person, in the service of the employer, to whose orders or directions the worker, at the time of the injury, was obligated to conform, and did conform, where the injury resulted from his or her having conformed; or

(d) by reason of the act or omission of a person in the service of the employer, done or made in obedience to the rules or by-laws of the employer, or in obedience to particular instructions given by a person delegated with the authority of the employer in that behalf,

the worker, or in case the injury results in death, the legal personal representatives of the worker, and persons entitled in case of death, shall have the same right of compensation and remedies against the employer as if the worker had not been a worker of, nor in the service of the employer, nor engaged in his or her work.

RSN1970 c110 s3

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Where worker not entitled to compensation

4. A worker is not entitled under this Act to a right of compensation or remedy against the employer in the following cases:

(a) under paragraph 3(a), unless the defect mentioned arose from or had not been discovered or remedied owing to the negligence of the employer or of some person in the service of the employer, and entrusted by him or her with the duty of seeing that the ways, works, machinery or plant were in proper condition;

(b) under paragraph 3(d), unless the injury resulted from some impropriety or defect in the rules, by-laws or instructions mentioned in that paragraph, but where a rule or by-law has been approved or has been accepted as a proper rule or by-law, by virtue of an Act or by the Lieutenant-Governor in Council, it shall not be considered, for the purposes of this Act, to be an improper or defective rule or by-law; and

(c) in a case where the worker knew of the defect or negligence which caused his or her injury, and failed within a reasonable time to give, or cause or be given, information on that defect or negligence to the employer, or some superior person in the service of the employer, unless he or she was aware that the employer or that superior already knew of the defect or negligence.

RSN1970 c110 s4

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Amount of compensation recoverable

5. The amount of compensation recoverable, under this Act, shall not exceed the sum found to be equivalent to the estimated earnings during the 3 years preceding the injury, of a person in the same grade employed during those years in the same employment, and in the district in which the worker is employed at the time of the injury.

RSN1970 c110 s5

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Penalty to be deducted from compensation

6. (1) There shall be deducted from compensation awarded to a worker, or representative of a worker, claiming by, under or through a worker, in respect of a cause of action under this Act, a penalty, or part of a penalty, which may have been paid, under another Act or law having force in this province, to a worker, representatives or persons in respect of the same cause of action.

(2) Where an action has been brought, under this Act, by a worker or the representatives of a worker, or a person claiming through that worker, for compensation in respect of a cause of action arising under this Act, and payment has not previously been made of a penalty or part of a penalty under another Act or law in force in this province in respect of the same cause of action, that worker, representative or person shall not be entitled to receive a penalty or part of a penalty under another Act or law in respect of the same cause of action.

RSN1970 c110 s6

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Liability for fault, etc., of subcontractor

7. When the execution of a work is being carried into effect under a contract and

(a) the person for whom the work or a part of the work is done owns or supplies ways, works, machinery, plant, buildings or premises, used for the purpose of executing the work; and

(b) by reason of a defect in the condition or arrangement of the ways, works, machinery, plant, buildings or premises, personal injury is caused to a worker employed by the contractor or by a sub-contractor; and

(c) the defect or the failure to discover or remedy the defect arose from the negligence of the person for whom the work or a part of the word is done, or of some person being in his or her service and entrusted by him with the duty of seeing that the condition or arrangement is proper,

the person for whom the work is done, or that part of the work is done, shall be liable to pay compensation for the injury as if the worker had been employed by him or her; and for that purpose shall be considered to be the employer of the worker within the meaning of this Act, provided that the person for whom the work is done shall be entitled to be indemnified by another person who would have been liable independently of this section.

RSN1970 c110 s7

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Notice of injury and limitation of actions

8. (1) Proceedings under this Act for the recovery of compensation for an injury shall not be maintained unless notice of the accident has been given as soon as possible after the happening of the injury and before the worker has voluntarily left the employment in which he or she was injured, and unless action is commenced within 6 months from the occurrence of the accident causing the injury, or in case of death, within 6 months from the time of death, but the want of, or a defect or inaccuracy in that notice shall not be a bar to the maintenance of the proceedings if it appears that the employer is not prejudiced in his or her defence by the want, defect or inaccuracy, or that the want, defect or inaccuracy was occasioned by mistake or other reasonable cause.

(2) Notice in respect of an injury under this Act shall give the name and address of the person injured, and shall state in ordinary language the cause of the injury, and the date at which it was sustained, and shall be served on the employer, or if there is more than 1 employer, upon 1 of the employers.

(3) The notice may be served by delivering it to, or at the residence or place of business of, the person on whom it is to be served.

(4) The notice may also be served by post, by registered letter addressed to the person on whom it is to be served, at his or her last known place of residence or place of business, and, if served by post, shall be considered to have been served at the time when the letter containing it would have been delivered in the ordinary course of post, and in proving the service of that notice it shall be sufficient to prove that the notice was properly addressed and registered.

(5) Where the employer is an incorporated or unincorporated association, the notice may also be served by delivering it at, or by sending it by post in a registered letter addressed to the employer at, the office, or, if there be more than 1 office, an office of that body.

RSN1970 c110 s8

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Prohibition

9. A contract or agreement made or entered into by a worker shall not be a bar or constitute a defence to an action for the recovery of compensation under this Act for an injury happening to a worker.

RSN1970 c110 s9

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Application of sections 11, 12 and 13

10. (1) Sections 11, 12 and 13 apply

(a) to industries and workers excluded from coverage under the Workers' Compensation Act, notwithstanding that they are casual workers; and

(b) to outworkers and to persons whose employment is of a casual nature and who are employed otherwise than for the purpose of their employer's trade or business.

(2) In this section "outworker" means a person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished, repaired or adapted for sale in his or her own home or on other premises not under the control or management of the person who gave out the articles or materials.

(3) In sections 10 to 13 "worker" includes a domestic servant.

1983 c48 s116

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Personal injury caused by defect or negligence

11. (1) Where personal injury is caused to a worker by reason of a defect in the condition or arrangement of the ways, works, machinery, plant, buildings or premises connected with or intended for or used in the business of his or her employer or by reason of the negligence of his or her employer or a person in the service of his or her employer acting within the scope of his or her employment, the worker or, if the injury results in death, the legal personal representative of the worker and a person entitled in case of death have an action against the employer.

(2) Where an action under subsection (1) is brought by the worker referred to in that subsection, he or she is entitled to recover from the employer referred to in that subsection the damages which the worker sustained by or in consequence of the injury caused to him or her.

(3) Where an action under subsection (1) is brought by the legal personal representative of the worker referred to in that subsection or by or on behalf of persons entitled to damages under the Fatal Accidents Act, that representative or those persons are entitled to recover those damages that he, she or they are entitled to under that Act.

(4) Where the execution of work is being carried into effect under a contract and the person for whom the work is done owns or supplies ways, works, machinery, plant, building or premises, and by reason of a defect in the condition or arrangement of them personal injury is caused to a worker employed by the contractor or by a subcontractor and the defect arose from the negligence of the person for whom the work or a part of it is done or of some person in his or her service and acting within the scope of his or her employment, the person for whom the work or that part of the work is done is liable to the action as if the worker had been employed by him or her and for that purpose is considered to be the employer of the worker within the meaning of this Act, but that contractor or subcontractor is liable to the action as if this subsection had not been enacted but not so that double damages are recoverable for the same injury.

(5) Nothing in subsection (4) affects a right or liability of the person for whom the work is done and the contractor or subcontractor as between themselves.

(6) A worker shall not by reason of his or her continuing in the employment of the employer with knowledge of the defect or negligence which caused his or her injury be considered to have voluntarily incurred the risk of the injury.

1983 c48 s116

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Contributory negligence

12. A worker is considered not to have undertaken the risks due to the negligence of his or her fellow-workers and contributory negligence on the part of a worker is not a bar to recovery by him or her or by a person entitled to damages under the Fatal Accidents Act in an action for the recovery of damages for an injury sustained by or causing the death of the worker while in the service of his or her employer for which the employer would otherwise have been liable.

1983 c48 s116

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Damages

13. Notwithstanding section 12, contributory negligence on the part of a worker shall be taken into account in assessing the damages in an action referred to in that section.

1983 c48 s116

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