EMPLOYERS’ LIABILITY, and WORKMEN’S COMPENSATION.[1] The law of England as to the liability of employers in respect of personal injuries to their servants is regulated partly by the common law and partly by statute; but by the Employers’ Liability Act 1880, such exceptions have been grafted upon the common law, and by the Workmen’s Compensation Act 1906, principles so alien to the common law have been applied to most employments that it is impossible now to present any view of this branch of the law as a logical whole. All that can be done is to state the nature of the liability at common law. the extension of it effected by the Employers’ Liability Act 1880, and the new liabilities introduced by later acts.
At common law the liability of a master is of a very limited character. There is, of course, nothing to prevent a master and servant from providing by special contract in any way they please for their mutual rights in cases of Common law. personal injury to the servant. In such cases the liability will depend upon the terms of the special contract. But apart from any special agreement, it may be broadly stated that a master is liable to his servants only for injuries caused by his own negligence. Injuries to a servant may arise from accident, from the nature of the service, or from negligence; and this negligence may be of the master, of another servant of the master, or of a stranger. If the injury is purely accidental the loss lies where it falls. If it arises from the nature of the service, the servant must bear it himself; he has undertaken a service to which certain risks are necessarily incident; if he is injured thereby, it is the fortune of war, and no one can be made responsible. If the injury is caused by the negligence of a stranger, the servant has his ordinary remedy against the wrong-doer or any one who is responsible as a principal for the conduct of the wrong-doer. If it is caused by the negligence of a fellow-servant, he likewise has his ordinary remedy against the actual wrong-doer; but, by virtue of what is known as the doctrine of common employment, he cannot at common law make the master liable as a principal. The only case (independently of modern legislation: see below) in which he can recover damages from the master is where the injury has been caused by negligence of the master himself. A master is negligent if he fails to exercise that skill and care which, in the circumstances of the particular employment, are used by employers of ordinary skill and carefulness. If he himself takes part in the work, he must act with such skill and care as may reasonably be demanded of one who takes upon himself to do work of that kind. If he entrusts the work to other servants, he must be careful in their selection, and must not negligently employ persons who are incompetent. He must take proper care so to arrange the system of work that his servants are not exposed to unnecessary danger. If tools or machinery are used, he must take proper care to provide such as are fit and proper for the work, and must either himself see that they are maintained in a fit condition or employ competent servants to do so for him. If he is bound by statute to take precautions for the safety of his servants, he must himself see that that obligation is discharged. For breach of any of these duties a master is liable to his servant who is injured thereby, but his liability extends no further.
That his obligations to a servant are so much less than to a stranger is chiefly due to the doctrine of common employment. As a rule a master is responsible for the negligence of his servant acting in the course of his employment; Common employment. but, from about the middle of the 19th century, it became firmly rooted in the law that this principle did not apply where the person injured was himself a servant of the master and engaged in a common employment with the servant guilty of the negligence. In effect this rule protects a master as against his servant from the consequences of negligence on the part of any other of his servants; to this there is no qualification except that, for the rule to apply, both the injured and the negligent servant must be acting in pursuance of a common employment. They must both be working for a common object though not necessarily upon the same work.
It is not easy to define precisely what constitutes a common employment in this sense, and there is peculiarly little judicial authority as to the limit at which work for the same employer ceases to be work in a common employment. It does not depend on difference in grade; all engaged in one business, from the manager to the apprentice, are within the rule. It does not depend on difference in work, if the work each is doing is part of one larger operation; all the servants of a railway company, whether employed on the trains, or at the stations, or on the line, are in a common employment. It does not necessarily depend on difference of locality; a servant who packs goods at the factory and a servant who unpacks them in the shop may well be in a common employment. On the other hand, it is not enough that the two servants are working for the same employer, if there is nothing in common between them except that they are making money for the same man; apart from special circumstances, the crews of two ships owned by the same company are probably not in common employment while navigating their respective ships. The test in each case must be derived from the view, invented by the courts, upon which the doctrine was based, namely, that the servant by entering upon the service consented to run all the risks incidental to it, including the risk of negligence on the part of fellow-servants; if the relation between the two servants is such that the safety of the one may, in the ordinary course of things, be affected by the negligence of the other, that negligence must be taken to be one of the risks of the employment assented to by the servant, and both are engaged in a common employment. In ninety-nine cases out of a hundred it will be found that the doctrine is applicable, and the master protected from liability. It is thus seen that, in general, no action will lie against a master at the suit of his servant, unless the servant can prove personal negligence on the part of the master causing injury to the servant. And in such action the master may avail himself of those defences which he has against a stranger. He may rely upon contributory negligence, and show that the servant was himself negligent, and that, notwithstanding the negligence of the master, the injury was proximately caused by the negligence of the servant. Or (except in cases where the injury results from a breach of a statutory duty) he may prove such facts as establish the defence expressed in the maxim, volenti non fit injuria; that is, he may prove that the injured servant knew and appreciated the particular risk he was running, and incurred it voluntarily with full understanding of its nature. Mere knowledge on the part of the servant, or even his continuing to work with knowledge, does not necessarily establish this defence; it must be knowledge of such a kind and in such circumstances that it can be inferred that the servant contracted to take the risk upon himself. The action at common law is subject to the general rule that personal actions die with the person; except so far as the remedy for money loss caused by death by negligence has been preserved in favour of a husband or wife and certain near relatives, under Lord Campbell’s Act (Fatal Accidents Act 1846).
Such was the law up to 1880. So long as industry was conducted on a small scale, and the master worked with his men, or was himself the manager, its hardship was perhaps little felt; his personal negligence could in many cases The act of 1880. be established. But with the development of the factory system, and the ever-growing expansion of the scale on which all industries were conducted, it became increasingly difficult to bring home individual responsibility to the employer. As industry passed largely into the control of corporations, difficulty became almost impossibility. The employer was not liable to a servant for the negligence of a fellow-servant, and therefore, in most cases of injury, was not liable at all. It is not surprising that the condition of things thus brought about, partly by the growth of modern industry and partly by the decisions of the courts, caused grave dissatisfaction. The justice of the doctrine of common employment was vigorously called in question. In the result the Employers’ Liability Act 1880 was passed. The effect of this act is to destroy the defence of common employment in certain specified cases. It does not abolish the doctrine altogether, nor, on the other hand, does it impose upon the master any new standard of duty which does not exist as regards strangers. All that it does is to place the servant, in certain cases, in the position of a stranger, making the master liable for the negligence of his servants notwithstanding the fact that they are in common employment with the servant injured. It is still necessary under the act, as at common law, to prove negligence, and the master may still rely upon the defences of contributory negligence and volenti non fit injuria. But under the act he cannot, as against the workmen who come within it and in the cases to which it applies, set up the defence that the negligence complained of was the negligence of a servant in a common employment. The act does not apply to all servants. It does not apply to domestic or menial servants, or to seamen, or to any except railway servants and “any person who, being a labourer, servant in husbandry, journeyman, artificer, handicraftsman, miner, or otherwise engaged in manual labour ... has entered into or works under a contract with an employer, whether the contract be oral or in writing, and be a contract of service or a contract personally to execute any work or labour.” Whether a servant, not being one of those specially named, is within the act depends on whether manual labour is the real and substantial employment, or whether it is merely incidental thereto; thus a carman who handles the goods he carries may be within the act, but a tramcar driver or an omnibus conductor is not. The act does not make the master liable for the negligence of all his servants, but, speaking generally, only for the negligent discharge of their duties by such as are entrusted with the supervision of machinery and plant, or with superintendence, or the power of giving orders, with the addition, in the case of a railway, of the negligence of those who are given the charge or control of signals, points, locomotive engines or trains. The cases dealt with by the act are five in number; in the first and fourth the words are wide enough to include negligence of the employer himself, for which, as has been seen, he is liable at common law. In such instances the workman has an alternative remedy either at common law or under the act, but in all other respects the rights given by the act are new, being limitations upon the defence of common employment, and can be enforced only under the act.
The first case is where the injury is caused by reason of any defect in the condition of the ways, works, machinery or plant connected with or used in the business of the employer, provided that such defect arises from, or has 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 with the duty of seeing that the ways, works, machinery or plant are in proper condition. The second case is where the injury is caused by reason of the negligence of any person in the service of the employer who has any superintendence entrusted to him (that is, a person whose sole or principal duty is that of superintendence, and who is not ordinarily engaged in manual labour) whilst in the exercise of such superintendence. The third case is where the injury is caused by reason of the negligence of any person in the service of the employer to whose orders or directions the workman at the time of the injury is bound to conform and does conform, where such injury results from his so conforming. The fourth case is where the injury is caused by reason of the act or omission of any 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 any person delegated with the authority of the employer in that behalf, provided that the injury results from some impropriety or defect in such rules, by-laws or instructions. The fifth case is where the injury is caused by reason of the negligence of any person in the service of the employer who has the charge or control of any signal, points, locomotive engine or train upon a railway.
In all these cases it is provided that the employer shall not be liable if it can be shown that the workman knew of the defect or negligence which caused his injury, and failed within a reasonable time to give, or cause to be given, information thereof to the employer or some person superior to himself in the service of the employer, unless he was aware that the employer or such superior already knew of the said defect or negligence. It was inevitable that these provisions should call for judicial interpretation, and a considerable body of authority has grown up about the act. Where general words are used, it must always occur that, between the cases which are obviously within and those which are obviously without the words, there are many on the border line. Thus, under the act, the courts have been called upon to determine the precise meaning of “way,” “works,” “machinery,” “plant,” and to say what is precisely meant by a “defect” in the condition of each of them. They have had to say what is included in “railway” and in “train,” what is meant by having “charge” or “control,” and to what extent one whose principal duty is superintendence may participate in manual labour without losing his character of superintendent, and what is the precise meaning of negligence in superintendence. These are only illustrations of many points of detail which, having called for judicial interpretation, will be found fully dealt with in the text-books on the subject. A workman who, being within the act, is injured by such negligence of a fellow-servant as is included in one or other of the five cases mentioned above, has against his employer the remedies which the act gives him. These are not necessarily the same as those which a stranger would have in the like circumstances; the amount of compensation is not left at large for a jury to determine, but is limited to an amount not exceeding such sum as may be found to be equivalent to the estimated earnings, during the three years preceding the injury, of a person in the same grade employed during those years in the like employment and in the district in which the workman is employed at the time of the injury. Moreover, the right to recover is hedged about with technicalities which are unknown at the common law; proceedings must be taken in the county court, within a strictly limited time, and are maintainable only if certain elaborate provisions as to notice of injury have been complied with. Where the injury causes death the action is maintainable for the benefit of the like persons as are entitled under Lord Campbell’s act in an action at common law.
The law continued in this condition up to 1897. In the majority of cases of injury to a servant, the doctrine of common employment still protected the master; and where, under the Employers’ Liability Act, it failed to do so, the liability was of a limited character and often, owing to technicalities of procedure, difficult to enforce. Moreover, there is nothing in the act to prevent master and servant from entering into any special contract they please; and in many trades it became a common practice for contracts to be made wholly excluding the operation of the act. In 1893 an attempt was made to alter the law by a total abolition of the defence of common employment, so as to make a master as liable to a servant as to a stranger for the negligence of any of his servants acting in the course of their employment, and at the same time to prohibit any agreements to forego the rights so given to the servant. The bill did not become law, and no further change was made until, in 1897, parliament took the first step in what has been a complete revolution in the law of employers’ liability. Up to that year, as has been seen, the foundation of a master’s liability was negligence, either of the master himself, or, in certain cases, of his servants. But by the Workmen’s Compensation Act 1897, a new principle was introduced, Acts of 1897 to 1906. whereby certain servants in certain employments were given a right to compensation for injuries, wholly irrespective of any consideration of negligence or contributory negligence. As regards such servants in such employments the master was in effect made an insurer against accidental injuries. The act was confessedly tentative and partial; it dealt only with selected industries, and even within these industries was not of universal application. But where it did apply, it gave a right to a limited compensation in every case of injury by accident arising out of and in the course of the employment, whether that accident had been brought about by negligence or not, and whether the injured servant had or had not contributed to it by his own negligence.
The act applied only to employment on, or in, or about certain localities where, at the same time, the employer was what the act called an “undertaker,” that is, the person whose business was there being carried on. If we wanted to know whether a workman was within the act, we had to ask, first, was he employed on, or in, or about a railway, or a factory, or a mine, or a quarry, or an engineering shop, or a building of the kind mentioned in the act; secondly, was he employed by one who was, in relation to that railway, &c., the undertaker as defined by the act; and thirdly, was he at the time of the accident at work on, or in, or about that railway, &c. Unless these three conditions were fulfilled the employment was not within the act.