PART VII.

Alternative Remedies by Workmen.

60. —(1) Where an injury to a workman is caused by the personal negligence or wilful act of his employer or of some person for whose act or default such employer is liable, nothing in this Act shall affect any civil liability of such employer, but in that case such workman may, at his option, either claim compensation under this Act, or take proceedings independently of this Act.

(2) Nothing in the foregoing sub-section shall be construed to make an employer liable to pay compensation for injury to a workman by accident arising out of and in the course of his employment both independently of and also under this Act, or to make an employer liable to any proceedings independently of this Act, except in case of such personal negligence or wilful act as aforesaid.

(3) If, within the time limited by this Act for taking proceedings under this Act, an action is instituted to recover damages independently of this Act for injury caused by accident, and it is determined in such action, or on appeal, that the injury is one for which the employer is not liable in such action, but that he would have been liable to pay compensation under the provisions of this Act, the action shall be dismissed, but the Court in which the action is tried, or if the determination is the determination (on appeal by either party), of an appellate tribunal, then such appellate tribunal shall, if the plaintiff so choose, proceed to assess such compensation, but may deduct therefrom all or part of the costs which in its judgment have been caused by the plaintiff bringing the action instead of proceeding under this Act.

(4) In any proceedings under the foregoing sub-section, when the Court in which the action is tried or the appellate tribunal assesses compensation, it shall give a certificate of the compensation it has awarded and the directions it has given as to the deduction of costs, and such certificate shall have the same force and effect as if it were a judgment of the Circuit Court awarding compensation under this Act.

(5) Where the determination under sub-section (3) of this section is that of the Supreme Court or the High Court, the Supreme Court or the High Court, as the case may be, may in lieu of assessing compensation in accordance with the said sub-section, remit the case to the Circuit Court for the assessment of compensation and in such case may order the Circuit Court to deduct from the amount of compensation assessed by it all or part of such costs as aforesaid.

61. —Where the injury for which compensation is payable to a workman under this Act, or any scheme certified under this Act, was caused in circumstances creating a legal liability in some person other than the employer of such workman to pay damages in respect thereof, then the following provisions shall have effect, that is to say:—

(a) such workman may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act or such scheme for such compensation, but shall not be entitled to recover both damages and compensation,

(b) if such workman has recovered compensation under this Act or such scheme, the person by whom the compensation was paid, and any person who has been called on to pay an indemnity under the provisions of this Act relating to sub-contracting, shall be liable to be indemnified by the person so liable to pay damages as aforesaid, and all questions as to the right to and amount of such indemnity shall, in default of agreement, be settled by action.

62. —(1) If the Registrar of Friendly Societies in Saorstát Eireann (in this section referred to as the Registrar) after taking steps to ascertain the views of the employer and workman, certifies—

(a) that any scheme of compensation, benefit or insurance for the workmen of an employer in any employment, whether or not such scheme includes other employers and their workmen, provides scales of compensation not less favourable to the workmen and their dependants than the corresponding scales contained in this Act, and

(b) that, where the scheme provides for contributions by the workmen, the scheme confers benefits at least equivalent to those contributions, in addition to the benefits to which the workmen would have been entitled under this Act; and

(c) that a majority (to be ascertained by ballot) of the workmen to whom the scheme is applicable are in favour of such scheme;

the employer may, whilst the certificate is in force, contract with any of his workmen that the provisions of the scheme shall be substituted for the provisions of this Act, and thereupon the employer shall be liable in respect of those workmen only in accordance with the scheme.

(2) The Registrar may give a certificate to expire at the end of a limited period of five years, and may from time to time renew with or without modification such a certificate to expire at the end of the period for which it is renewed.

(3) No scheme shall be so certified which contains an obligation upon the workmen to join the scheme as a condition of their hiring, or which does not contain provisions enabling a workman to withdraw from the scheme.

(4) The Registrar shall not certify, or renew a certificate of, any such scheme unless he is satisfied that adequate provision is made to secure the discharge of liabilities arising under the scheme, both during the currency of the scheme and after the scheme is revoked or expires, so far as there may be any liabilities outstanding at the date of revocation or expiry.

(5) If complaint is made to the Registrar by or on behalf of the workmen of any employer that the benefits conferred by any scheme no longer conform to the conditions stated in sub-section (1) of this section, or that the provisions of such scheme are being violated, or that the scheme is not being fairly administered, or that satisfactory reasons exist for revoking the certificate, the Registrar shall examine into the complaint, and, if satisfied that good cause exists for such complaint, shall, unless the cause of complaint is removed, revoke the certificate.

(6) When a certificate is revoked or expires, any moneys or securities held for the purpose of the scheme shall, after due provision has been made to discharge the liabilities already accrued, be distributed as may be arranged between the employer and workmen, or as may be determined by the Registrar in the event of a difference of opinion.

(7) Whenever a scheme has been certified as aforesaid, it shall be the duty of the employer to answer all such inquiries and to furnish all such accounts in regard to the scheme as may be made or required by the Registrar.

(8) Where a scheme certified under this Act provides for payment of compensation by a friendly society, the following provisions of the Friendly Societies Act, 1896, that is to say, the proviso to sub-section (1) of section 8, section 16, and section 41, shall not apply to such society in respect of such scheme.

(9) The Registrar shall include in his annual report the particulars of his proceedings under this Act.

(10) The Registrar may make regulations for the purpose of carrying this section into effect.

63. —Nothing in this Act shall affect any proceeding for a fine under the enactments relating to mines, factories or workshops, or the application of any such fine.