John Macdonell.

The law of master and servant. Part I.--Common law. Part II.-- Statute law online

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acts of their fellow servants. Some of the decisions were of
doubtful justice ; and the reasons given for them were con-
flicting and far from satisfactory.

A Select Committee of the House of Commons, which in-
vestigated the subject, reported in 1877, in favour of a change
in the law.

" Your committee are of opinion," they said, " that in cases such as
these, that is, where the actual employers cannot personally discharge
the duties of masters, or where they deliberately abdicate their functions
and delegate them to agents, the acts or defaults of the agents who thus
discharge the duties and fulfil the functions of masters should be con-
sidered us the personal acts or defaults of the principals and employers,
and sliould impose the same liability on such principals and employers, as
they would have been subject to had they been acting personally in the
cimduct of tlieir business, notwithstanding that such agents are techni-
cally in the employment of the principals. The fact of such a delega-
tion of authority would have to be established in each case, but this
windd not be a matter of ditliculty. Your committee are further of
opinion, that the doctrine of common employment has been carried too
far, when workmen employed by a contractor, and worknu-n employed
by a person or company who has employed such contractor, are con-
sidered as being in the same connuon employment."

A bill carrying out the above suggestions was introduced

(«) 3 M. .t W. L

employers' liability act. I)o5

into Parliament on the l7th March of 1879. It was Avith-
drawn on 3()th July of that year. It was re-introduced in
February 1880, and referred to a Select Committee. In
May, 1880, a bill Avas introduced, and after much discussion
and considerable alterations, it was passed. It came into
operation on January 1, 1881.

Contracting out of the Act.

Many workmen have contracted themselves out of the Act.
Of the validity of such contracts there is no doubt. It is not
contrary to public policy for a workman to agree to accept
the risks of a lawful employment. As has been already ex-
plained (h), it is competent for an employer to invito persons
to work for him in circumstances of danger ; and if a workman,
for the sake of wages, continue in dangerous employment
with a knowledge of the risks, he must trust to himself to
keep clear of injury (c).

This view has, in fact, been taken by the Queen's Bench
Division in Griffiths v. Dudley {d). The plaintiff, a journey-
man pit-sinker in one of the defendant's collieries, was
killed owing to the negligence of an inspector of machinery.
A club or benefit society, called " The Field Box," raised
a fund by weekly contributions from the workmen employed
in the defendant's collieries. The defendant contributed to
this fund a sum equal to the aggregate of the contributions
of the workmen. The fund was used in giving the workmen
surgical aid in case of personal injuries received in their work,
a weekly allowance in time of sickness, in paying funeral
expenses, and in making allowances to Avidows and families in
case of the death of workmen. When the Employers' Liabi-
lity Act came into operation, a meeting of workmen, at which
it Avas not proved Griffiths attended, took place. The men
agreed to accept the old arrangement, and the defendant

(h) Cliaptcr XXIX., Tavt I. 42 I,. .1. Q. 11. 4 (])assi-nger travel-

(c) See also liramwell, !>., in ling "at his own risk").

Btjnai V. Leach (1857), '26 L. .J. Ex. (d) L. K. 9 Q. H. D. 3.^7 ; 51 L. J.

221 ; and McCau:ln/ v. Jkti/- (,». H. 543: 47 L. T. N. S. 10; 30

vaij Co. (1872), L.' U. 8 Q. H. 57 ; W. U. 797.


circulated auiong them printed conditions, by which all work-
men were to be members of the cUib on the existing basis,
and no workman, or in any case of death, no person entitled
to look to the funds of the society for compensation, would
be entitled to sue the defendant. Griffiths read these condi-
tions, and continued to work as before, and to pay his subscrip-
tion to the club. In an action by the widow, as executrix of
the deceased, against the defendant, the county court judge
gave judgment for lier, on the ground that the contract
Avas void for want of mutuality and consideration, and as
being contrary to public policy. On appeal, this decision was
reversed, the Court holding that such a contract was not
contrar}'' to public policy, and that the widow had no right
of action.

The ratio decidendi in this case seems to show that em-
ployers might contract themselves out of any section or part
of the Act ; e.g., they might agree with their workmen that
infoi'mation of defects mentioned in sec. 2, sub-sec. 3, be
given to a certain specified " superior," and to him only.

To support an agreement to give up claims to compen-
sation under the Act, consideration of some sort is required;
and if the contract Avitli respect to this be in writing, the
consideration must be expressed (c).

Section 1 gives " the legal personal representatives of the
workman and any persons entitled in case of death," "the same
right of compensation and remedies against the employer as
if the workman had not been a workman of, nor in the service
of the employer, nor engaged in his work." As stated above,
it was decided in Griffiths v. Dudltnj, that the widow of a
deceased workman could not sue when the latter had contracted
himself and his representatives out of the Act. The principle
of Read v. Gt. Eastern Ry. Co. (/), applies to the right con-
ferred by the statute. There it was held to be a good plea to
an action under 9 & 10 Vict. c. 9*3, by the plaintiff' as widow of

(«) Chap. X. (/•) (]S()S\ I.. 1?. 3 Q. 15. JiC.'i ; 37

L. J. (,). 15. 278.

employers' liability act. 057

a passenger, for negligence which had caused his death, tliat
he had in his hfetime been paid, and had accepted, a sum
of money in full satisfaction of all claims.

('Ontracts between masters and servants, by which the latter
agree to waive the benefits of the Act, need not be in writing ;
though, for obvious reasons, it is, in practice, expedient to
commit such a contract to writing. It might be concluded b}^
posting up in mills or works printed regulations or notices,
provided the workmen saw them before they were engaged ig).

A workman who has been injured may lose the benefit of
the Act by accepting a sum as compensation for injuries
which he has sustained (li) ; on the other hand, he will be
deprived of all right to any penalty if he brings an action
under the Act for the same cause of action (i). If a servant,
who has been injured in circumstances which entitle him to
compensation from his master, has been induced by fraud
to give a receipt in full discharge, or execute a release, the
receipt or release will not be conclusive, and need not pre-
vent him from suing. The plaintiff in Lee v. Lancashire d-
Yorkshire Ry. Co. (k), had been injured in a collision on the
defendants' railway, and gave on October 18th, 1865, a
receipt for £400, " in discharge of my claim in full for all loss
sustained." On the Gth Nov. of the following year, he com-
menced an action for .4iG00, alleging that his injuries were
more serious than had been supposed. The receipt which he
had given was, in the view of the Court of Appeal, no bar to
an action, if the plaintiff could show that it had been given
upon the distinct understanding that it was not to be conclu-
sive (I). In Jiirschfieldv. London, Brighton, c£- South Coast
My. Co. (m), a release under seal had been given ; but it was

{(/) Cams V. Eastwood {1S7 5), 32 jured).

L. t. N. S. 855. (0 Sec. 5.

(/() Addison on Torts, 4 ed. ]>. 46 ; (k) <1871) L. R. 6 Ch. 527 ; 25 L.

jrri(i/it V. London General Omnibus T. N. S. 77 ; 19 W. K. 729.

Co. (1877), L. E. 2 Q. B. D. 271 (/) See also Stewart v. Great

(award of (•mnpensiition by a niagis- Western Ry. Co. (1865), 2 D. J. &

trate under li k 7 Vicf. c. 86, s. 28, S. 319.

against a driver of cab, bar to action (ni) (1876) L. R. 2 Q. B. D. 1 ; 4&

against his employers by person in- L. J. Q. B. 94 ; 35 L. T. 473.


held to be a good reply to a defence founded on the deed that
the defendants' officer had induced the plaintiff to execute
the release, by fraudulently representing to him that the
injuries were of a trivial character, and that if they turned
out to be serious, he might obtain further compensation.


Employers have sought to insure themselves against
liabilities under the Act. The usual plan is for an insu-
rance company to agree, in consideration of aimual pay-
ments varying with the amount of wages and nature of the
employment, to indemnify employers against claims under
the Act. An employer has an insurable interest, and such
contracts are no doubt valid. An insurer who pays an assuree
is, as a rule, subrogated to the remedies of the assuree, and
this may have important consequences. (1) If the former
indemnifies the latter for claims made by a workman injured
by reason of the negligence of a foreman, what is the position of
the insurer ? The employer might sue his foreman, or the
insurer after payment might, in the employer's name, also do
so {n). (2.) If the insurer indemnifies the assuree for claims
made under sec. 1, sub-sec. 1 of the Act, what is the position
of the assuree ? Suppose, for example, that A. purchased a
crane from B. warranted to lift three tons. Under a strain of
only two tons it broke, and one of A.'s workmen was injured.
What is the position of C. the insurer ? The workman would
have no rioflit to recover acjainst A. unless A. himself or some
one within sec. 2, sub-sec. 1, had been guilty of negligence. A.
coiUd not recover from B. in respect of damages which
were the result, not of a breach of warranty, but of the
negligence of A. or his agent ; and C. would be in no better
position (nn).

{n) Lcakf! on Contracts, 7.')4 ; May ("") Ofinriton v. McVlcar, (1864),

on\ni^\i\-AnCK, ^^i\CummrrcialUniini Macph. 1066. (0. ))aiil daiiiugcs to

Assurance Co. v. Lister (1S74), L. K. tlie relatives of a workman killed by

9 Ch. 483 ; /A'Wo« V. ;/'«■< (1863), 3 the breaking of a chain. O. broufjht

B. & S. 5('9 ; iShilliiifj V. Accidcnlal an action aj^ainst M. who snpjilietl the

Assurance Co. (1858), 1 F. & F. 116. chain. Held, thattheactiondidnotlie).

employers' liability act. 659

TJlg Effect of the Act on the Common Law.

(1.) The statute does not wholly do away with the doctrine
of common employment. It does not affect such decisions as
Lovell V. Hoivell (o). It merely specifies certain classes of
servants for whoso acts employers are liable to fellow servants.
This is clearly affirmed in Roh'tns v. Cuhltt {'p), where a
workman who was injured by the improper lowering of a
pail failed to recover ; the accident having been caused by the
negligence of two fellow workmen not in positions of authority,
who were employed to lower the pail. The Employers'
Liability Act, said Cave, J., in GrltjUtlis v. Dudley, " provided
that in five specified classes of cases, a workman might bring
his action as if he had not been a workman, which I take to
mean nothing more than this — viz. : that, when a workman
brings his action within these five specified cases, the em-
ployer shall not be at liberty to say, ' You occupied the
position of a workman in my service, and therefore you must
be taken to have impliedly contracted to bear the conse-
quences arising from the negligence of your fellow workmen
in these five cases '".... "In the five cases specified in
sec. 1 of the Act, the workman shall not be held to have
impliedly contracted to bear those risks " (^?p).

(2), The statute does not apply to all servants, but merely
to those who are defined as " workmen " by sec. 8 of the
Employers and Workmen Act, 1875. Accordingly it does
not apply to domestic servants or seamen, or to servants who
are not engaged in manual work. Apparently the Act
includes all railway servants of whatever grade, and whether
engaged in manual labour or not (q). The Act does not seem
to affect such decisions as Deg;/ v. Midland Rij. Co. (r).

(3.) A workman's remedy at Common Law for injuries sus-
tained in circumstances described in Chapter XXIX. is not

(o) (1876) L. R. 1 C. P. D. 101. "workmen." As to the liability of

(])) (1881) 46 L. T. X. S. 535. infants who are eni]iloyers for tort-^,

I])})) 47 L. T. p. 19. see llurnnrd v. Haqqis, 14 C. l'>. N.

(q) Sec. 8. S 45 ; 32 L. J. C.'r. KS9 ; Walley

(r) (1857) 26 L. J. Ex. 171. v. Holt (1876), 35 L. T. 631.
Infants are within the delinition of

T T- 2


abolished. No doubt the terms of sec, 1 are unqualified ;
in the cases therein mentioned they appear to do away
entirely with the doctrine of common employment. But,
having regard to the other sections of the Act, and especially
to the frequent recurrence of the phrase " under this Act," it is
conceived that sec. 1 applies only to actions brought under
the statute (s).

(4.) The statute merely places a workman in the same
position as if he " had not been a workman of nor in the
service of the employer, nor engaged in his work." Conse-
quently all defences of which an employer might avail him-
self if a stranger were to sue him are open to an employer
in resisting claims under the Act. (A.) One of these is con-
tributory negligence. This has already been mentioned in
Chapter XXVIII. ; and it is enough to refer to such cases as
lladley v. London and North Western My. Co. (t^, and
flattery v. Dublin, Wicldoiv, ii-c., Ry. Co. (ii). (b.) Ac-
ceptance of the risks of employment is another defence.
See as to this, Woodley v. Metropolitan Ry. (x).
(c.) A third defence is the fact that a servant who was
negligent was not acting within the scope or sphere of his
duties (y). (D.) The framers of the Act have defined the
position of workmen by reference to an indefinite standard.
They do not seem to have sufficiently borne in mind that
several classes of persons with different rights are com-
prised in the negative description, " as if not w^orkmen,
&c." To trespassers who know the existence of defects in
machinery or dangers, there may be no liability, even if such
defects or dangers are known to the persons upon whose
property they trespass (s). Servants are at Common Law

(.v) Campbell's edition of Frasor's I.. T. 440 ; Corhi/ v. Hill (1858), 4

Law of jMastcr and Servant, p. 173. V. 1>. N. S. H.'jG.

(<) (187<;) L. ]!. 1 Ap. ('. 754 ; 4G (y) See Cliap. XXVIII.

L. J. (ui. (~) Deip) V. Ml'/lan,l h'l/. Co. (1857),

(u) (1378) L. K. 3 Ap. ('. 1155; 2(J K.v. "171. Sec J/otl v. WiUrs

Ellis V. L. B. <t-6: W. (1857), 2G L. (18-20), 3 li. & A. 304. The exact

J. Ex. 341). rights of a trespasser wlio is in-

(x) (1877) L. li. 2 Ex. 1). 384 ; Jured do not api)ear to be clearly

also lirwks v. C'ouHiictj (18(39), 20 defined.

employers' liability act. 601

iu the same position as volunteers, licensees, or guests;
that is, they are expected to t^ke care of themselves against
all but latent and extraordinary dangers, or what in some of the
cases are called " traps" {a). Thus, in Seymour v. Maddux (h),
an actor who, Avhile passing from the stage, was injured by
falling through a trap door which liad ])een left open unfenced,
failed to recover damages against his employer, on the ground
that he had suffered from one of the risks of his employment.
Persons who go to premises upon the express or implied in-
vitation of the occupier and upon his business are iu another
category. Their position was defined in Indermaur v.
Dames (c). A journeyman gasfitter had been sent by his
employer, at the request of the defendant, who was a sugar
refiner, to test the action of a gas regulator in the premises
of the defendant. While the plaintiff was on the premises, lie
accidentally, and, as the jury found, without negligence, fell
down a shaft which was open and unfenced. Mr. Justice
Willes, stating the law with respect to such persons as the
plaintiff, said : " We consider it settled law that he (that is,
a person going by express or implied invitation upon business
concerning the occupier), using reasonable care on his part
for his own safety, is entitled to expect that the occupier
shall, on his part, use reasonable care to prevent damage
from unusual danger, which he knows or ought to know " (d).
Owing to the peculiar manner in which the Act is drawn,
its effect is not easily ascertained. It does not con-
duce to lucidity to say in the first section that "workmen"
shall be treated as if they were not workmen, without taking
account of the fact that ''not workmen" include several
classes with different rights; to use different language to
describe the same thing (e) ; to re-state the Common Law

(a) Southcote v. Stanley (IB^G), 1 (c) (1866) L. R. 1 C. P. 274.

H. & N. 247 ; Bolch v. Smith (1862), (d) See also TVhitc v. F>wicc(lS77),

31 L. J. Ex. 201 ; Gautret v. Ecicr- L. K. 2 C. P. 1). 308, and Heaven v.

ton (1867), L. R. 2 C. P. 371 ; Fender (1882), L. R. 9 Q. B. D. 302 ;

Sullivan V. Waters (1864), 14 Ir. C. 30 AV. R. 749.

L 4(30. (c) See sec. 8, and the expressions

\h) (1851) 16 Q. B. 326 ; 20 L. J. used in sec. 1 and sec. 5 to denote

Q. B. 327. persons entitled in case of death.


in an Act intended to extend it; to define words not iu
the Act, and not to define ambiguous phrases which are
there (/).

But, apparently, the main effect of the Act is this : standing
by itself sec. I, sub.-sec. 1, places a Avorkman in the same
position as the plaintiff in Indei^iaur v. Dames. This
is qualified by sec. 2, sub.-secs. 1 and 3. The effect of the
first part of sec. 2, sub.-sec. 1, is, apparently, null. It repeats
the Common Law ; there being no doubt that, apart from
the Act, an employer is liable to servants for injuries
caused by defects in machinery, arising from or not dis-
covered or remedied, owing to his own negligence. The
second part of sec. 2, sub.-sec. 2, overrules the cases in
which employers have been absolved from responsibility
for the negligence of their foremen in regard to plant or

Sec. 2, sub.-sec. 3, introduces a qualification to sec. 1,
sub.-sec. 1. Holmes v. Clarke (h), and Holmes y. Worthing-
fon (i), show that a servant's knowledge of defects or
dangers is not, as a matter of law, an answer to an action
against an employer. Sub.-sec. 3 makes such knowledge
and failure to communicate within a reasonable time to the
employer or "some superior," as a matter of law, an answer
to an action under the Act. The alteration made by sec. 1,
sub.-sec. 1, of the Act, it is submitted, is not so large as might
at first blush seem to be tlie case. A workman is in no better
position than a person who is not a workman, but who is
on premises upon invitation ; and to rebut the defence of
acquiescence it would not suffice for the latter to com-
municate with " some person superior," but with some
one who was the agent of the employer to receive sucli

Sec. 1, sub-sec. 2, does away with the effect of decisions
in which employers have not been made answerable for the

if) See page 665. 81 L. T. Ex. 356.

(h) (1862) 30 L. J. Ex. 135 ; and (/) (1861) 2 ¥. k F. 533.

employers' LIAlilLITY ACT. 003

negligence of persons in autliority uiid not ordinarily em-
ployed in manual labour (l).

Sec. 1, sub-sec. 8, alters the Common Law by making the
employer answerable for the negligence of those who have not
general superintendence, and who may be engaged in manual

Sec. 1, sub-sec. 4, is in itself obscure, and it is made still
more so by sec. 2, sub-sec. 2. The first part of the former
contemplates the case of A. doing or not doing something in
obedience to the rules or bye-laws of the employer B., and C.
a workman, being thereby injured. It is conceived that
a stranger injured in such circumstances could recover if
the injury Avere the natural consequence of such act or
omission. But the statute appends two qualifications to a
workman's right of action. The injury must result from some
impropriety or defect in the bye-laws — which, however, is,
perhaps, only another way of saying that it must be the natural
consequence of obedience to the rules or bye-laws. Secondly^
a really improper or defective rule or bye-law will, for the pur-
pose of the Act, be proper and not defective if approved or
accepted as stated in sec. 2, sub-sec. 2 ; a jDroviso which
makes the position of the workman under the Act worse than
it is at Common Law, for an employer would be answerable for
accidents due to defective rules or bye -laws which he had negli-
gently prepared (n).

The second part of sec. 1, sub-sec. 4, mentions "particular
instructions." This may mean instructions which are a repe-
tition of the orders of the employer ; the person delegated
being only the mouthpiece of the employer. In this view, it
is conceived, the Act merely repeats the Common Law. Or
"particular instructions" may mean instructions given by one
who is entrusted with authority to use his discretion in giving
instructions on a particular occasion ; in which case the sub-
section apparently only deals with instances of the rule laid
down in sec. 1, sub.-sec. 3.

(I) See Jf'ihon v. Merry, L. 1!. 1 {n) Vose\. Lanm shire A- Yorkshire

S . & D., p. 338. Ry. Co. (1858), 27 L. J. Ex. 249.


43 & 44 VICT. c. 42.
Arrangement op Sections.


1. Amendment of law.

2. Exceptions to amendment of law.

3. Limit of sum recoverable as compensation.

4. Limit of time for recovery of conipensation .

5. ]\Ioney payable under penalty to be deducted from compensation

under Act.

6. Trial of actions.

7. Mode of serving notice of injury.

8. Definitions.

9. Commencement of Act.
10. Short title.

An Act to extend and regulate the Liahility of Emi)lo]jers to make Compen-
sation for Personal Injuries suffered hj IForlmen in their Service.

[7th September, 1880.]

Be it enacted by the Queen's most Excellent Majesty, liy and with
the advice and consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, tmd by the authority
of the same, as foUoAvs :

1. Where after the commencement of this Act personal injury (o) is
caused to a workman (^j),

(1.) By reason of any defect (7) in the condition of the ways (?•),

(o) Injury to the person of the Timrs, Nov. 15, p. 4 (sonietliiiig

woikniau iis distins"isheJ from in- casually thrown or put upon a ti-ani-

jury to property. It would not in- way not a "detect."') Hwxam v.

elude the case of a workman whose Thorns, L. T., Jan. '1%, 1882, p.

tools were destroyed, or, probably, 227 ((,)u('eu's Iknch Division), and

claims by executors for " damaf,'c to the following cases in County Courts :

the estate" of deceased. i>vv. l'ullhi(/ Lavqham v. Yoviiii, L. T., July 30,

V. Great Easier a Jiy. Co. (1882), 9 1881, p. 233 ; Whittahr v. Jlahn-

Q. 13. D. 110 ; 30 W. K. 7li8. forth, L. T., Sept. 10, 1881, ]). 327 ;

(p) See sec. 8. Topham \. Goodwin, L. T., Nov. 5,

{q) This is controlled by the 1881, p. 10.

words at the end of the .section. "As (r) As to meaning of ways, "see

if the workman had not been," &c., Beaufort v. Bates (1862), 3 De G. F.

and also by sec. 2. See McGifJin v. & J. 381.
Palmer's Iron Shijibuildinrj Co.,



works, machinery, or plant (s) conuectcd with or used in tin;
business of the employer (<) ; or
(2.) By reason of the negligence («) of any person in tlu; service
of the employer who has any sujierintenilcnce entrusted to
him (y) whilst (.-j) in the exercise of such superinten<lence ; or

(s) In the Itiiilway Act, 1867, 30 i:
31 Vict. c. 127, s. 4, "plant" is
defined as " the engines, tenders,
carriages, trucks, niacliincry, tools,
fittings, matei'ials, and effects con-
stituting the rolling stock and ](lant
used or provided by a coni])any tor
the purposes of the tralKc on their
railway, or of their stations or work-
shops." See also "Wharton's Law
Lexicon. The phrase " stock in
trade" was struck out of the Bill lest
farmers should he made responsible
for the vice or other defects of their
horses. It is, however, by no means
certain that in the case of tramways,
for ^example, "plant" would not in-
clude horses. See Blake v. Slut to
(1860),.Iohn.s. 732, where Page^Vood,
V.C, tliought the term inchided
" horses, locomotives, and the like."

Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 69 of 77)