John Macdonell.

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

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(<) Till! Act contains no definition
of " employer." Sec. 8 merely states
that it includes " a body of per.sons
corporate or iiuincorporate." As to
spinners who are assisted by ' ' ])iecers "
and " creelers," Varlry v. Uirlci/,
Solicitofs Journal, Jlay 27, 1882
(p. 467). There nmst be either a
contract of service or a contract
personally to execute any work or
labour or a contract personally
to execute any labour. Conse-
quently a W(jrknian employed by a
sub-conti-actur could not sue the con-
tractor. McGinn v. rUliny, L. T.,
Dec. 31, 1881 (p. 156) ; nor could a
trolley-man occasionally employed by
defendants to unload boats : Lovcll
V. Charrinijton, Queen's Bench Divi-
sion, L. T., March 18, 1882, p. 356.

(ti) As to what constitutes negli-
gence, see Scott v. London Dock Co.
(1865), 34 L. J. Ex. 220 ; 3 H. &
C. 596 ; Owens v. Maudslaif, L. T.,
Feb. 25, 1882, p. 298 (Divisional
Court) ; Laming v. JFebb (County
Court), L. T., Feb. 4, 1S82, p. 247 ;
McManus v. Haij (1882), 9 K. 425.

{y) The descriptions in the Act of
persons in authority are numerous.



(1.) Any person in tlie service of the
employer wlio has superintendence
entrusted to him (sec. 1, sub.-sec. 2) ;
(2.) "Any person in the service of
the ein[)loyer to wliosc orders or direc-
tions tlie workman at the time of the
injury was bound to conform" (sec.
1, sub.-sec. 3); " any person delegated
with the authority of the employer
in that behalf" (sec. 1, sub.-sec. 4) ;
'•any ])erson in the service of the
employer, who has the charge or con-
trol ol' any signal, points," &c. (sec.
1, sub.-sec. 5) ; "some person in the
service of the employer and entrusted
by him with the duty of seeing that
the ways," &c. (sec. 2, sub.-sec. 1):
"some person superior to himself in
the service of tht; enqiloyer" (sec. 2,
sub.-sec. 3). Sec. 8 defines "a per-
son who has superintendence en-
trusted to him" — a phrase which, by
the way, does not occur in the Act —
as "a person whose sole or principal
duty is that of .superinti'udcnce, and
who is not ordinarily engagrd in
manual labour. " This definition is,
no doubt, intended to a^iply to sec. 1,
sub.-sec. 2. "Any superintend-
ence " is compreliensive enough to
include superintendence of maehineiy
as well as men, jirovided sueli superin-
tendence does not ordinarily involve
manual labour. AVliile the pcr.son
mentioned in sec. 1, sub.-sec. 2. must
be one "whose sole or principal duty
is that of superintendence, and who is
not ordinarily engaged in manual
labour" (sec. 8), there is no such limi-
tation us to tlie persons mentioned in
sec. 1, sub.-sec. 3 and 4. and .sec. 2,
sub.-sec. 1. " Ordinarily," in sec. 8,
a})j)ears to refer to the duties of the
]>articular man, not to tlie custom of
the trade or the ordinary coiu'se of
business. See Bonttcriti/if v. J)cnvn-
inq, L. T., April 15, 1882, p. 424 ;
Snuth V. Loftus, L. T., July 22, 1882,
p. 220 ; Oicens v. Maitdslay (Q. B.
D.), L. T., Feb. 25, 1882, p. 299.
{z) ] t is important to know whether



6GG



THE LAW OF MASTER AND SEUVANT.



(3.) By reason of tlu' ncLjligeiice of any person ill the sendee of
the enipkiyer to wliose orders or directions the workman at
the time of the injury Avas l)ound to conform («), and did
conform, uhere siicli injury rt-sulted from his having so con-
formed ; or

(4.) By reason of the act or omission of any person in the seivice of
the emploj^er done or made in obedience to the rules or bye-
laws (c) of the employer, or in obedience to particular in-
structions ((/) given by any person delegated with the au-
thority of the employer in that behalf (e) ; or

(5.) By reason of the negligence of any person in the service of the
employer who has the charge (/) or control of any signal,
points, loconn)tive engine, or train (;/) upon a railway (/(),



this refers to the time when, or tlii'
character or capacity in Avhicli, the
negligence was conmiitted. Mr.
Campbell, in his edition of Fraser's
Law of Master and Servant, p. 2"i9,
says: "The employer woidd he
liable if a sni)erinten(lent of a mine
negligently allows the miners to
smoke and an explosion ensues, but
not if the sni)erintendent himself is
guilty of the oti'enee." See Owens y.
Muudday.

This sub-sect, would probablj' ex-
tend to the case of a wurkman over
whom superintendence was not di-
rectly exercised.

(a) Lulling \. U'chh, I,. T. Feb. 4,
1882, p. -247. Orders to do sumething
distinctly perilous and hazardous, and
out of the .scope of a servant's em-
ployment, would therefore be oiitside
the Act : Prirstlcy v. Fvwlcr, 3 M. &
W. 1 ; Addison on Torts, 4th cd.
397.

{(•) For example, Petroleum Act,
34 ct 2,5 Viet. c. 105, s. 4 ; Coal
Mines Regulation Act, 35 k 36 Vict,
c. 76, .ss. 51 — 59 ; ]\letalliferous Mines
Act, 35 & 36 Vict. c. 77, .ss. 23—30 ;
Explosives Act, 38 ct 3!) Vict. c. 17,
ss. 35—37; Alkalis Act, 44 & 45
Vict. c. 37, s. 20.

{(I) See page 662.

(c) Sec ])age 662.

(/) In Cox V. The dreed Wester tt
Ry. Co. (see note (.7) ), th(^ jury found
as a fact that H., a "ca])stan man," in
tlie eniployineiit of the defendants
— that is, a man, who, by means of a
capstan, to which motive power was



imparted by a fixed hydraulic
engine, could put a train of trucks
in motion — was "in charge" of a
train. The County Court judge
ruled that H. had not "the charge
or control ; " but the Queen's Bench
Division decided that this was wrong.

In Hcnislrr v. Tlte Greet f Western
Ry. Co., Dec. 17. 1 881, 1 7 L. T. p. 120,
the (Jueen's liench Division declined
to interfere with a decision of a
county court judge, who held the
defendants liable for the negligence
of a fireman of an engine.

((/) A "train" being, to quote
AVebster's Dictionary, "a continuous
line of cars on a railroad," woidd in-
clude a number of carriages without
a locomotive. In Co.r v. Great
Western Ry. Co. (1882). L. W.
9 Q. B. D. 107 ; 30 W. 11. 816,
Mathew, J., said with reference to a
contention that a number of trucks
placed in a goods station to be un-
loaded, was not a train, that, in
his ojiinion. a locomotive was not
essentiid.

{li) This would, no doubt, include
a private railway. It has not yet
been decided whether the term in-
cludes tramways. As defined in
" Welister and Latham's Johnson,"
it would in(dude a tramway. The
objection to this view is that railways
and tramways have been dealt with
Ijy I'arliamiMit in different Acts ; that
in the General Tramway Act (33 &
34 Vict. c. 78, .ss. 25 anir26), " tram-
way " is used in contrast to railway ;
that the reference in the sub-section



EMPLOYKKS' LIAIJILITY ACT. GG7

the workinaii, or in case the injury results in death, the legal personal
representatives of the workman, and any persons entitled in case of
death (i), shall have the same right of compensation and remedies against
the employer as if the workman had not heen a workman of nor in tiie
ervice of the enrployer, nor engaged in his work (i).

2. A workman shall not be entitled under this Act (/.:) to any right of
compensation or remedy against the employer in any of the following
cases ; that is to say,

(1.) Under suh-section 1 of section 1, imless the defect therein
mentioned arose from, or had not been discovered or remedied
owing to the negligence of the emjjloyer, or of some person
in the service of the employer, and entrusted by him with
the duty of seeing that the Avays, Avorks, machinerj', or plant
were in proper condition.
(2.) Under sub-section 4 of section 1, unless the injury resulted
from some impropriety or defect in the rules, byelaws, or in-
structions therein mentioned ; provided that where a rule or
byelaw has been approved or has been accepted as a proper
rule or byelaAv by one of Her Majesty's Principal Secretaries
of State, or by the Board of Trade or any other deiwrtnient
of the Government, under or by virtue of any Act of Parlia-
ment, it shall not be deemed for the purposes of tliis Act to
be an improjier or tlefective rule or byelaw (/).
(3.) In any case where the workmen know of the defect or negligence
which caused his injury, and failed Avithin a reasonable time
to gi\'e, or cause to be giA^en, information thereof to the em-
jiloyer or some i)erson superior to himself in the serAnce of
the employer, unless he Avas aAvare that the employer or such
superior already kneAV of the said defect or negligence (m).

to "locomotive engine," is against knew." There is no definition of

this view; and that the legislature "sniirrior ;'" but it is submitted

obviously intended in tlie Enijiloyeis' that it does not mean any person

Liability Act to deal specially with superior in the sense of having higher

raihvays (sec. 8). Avages.

{{■} The chief Acts regulating the In McJ/onagJe x. Balrd tfc Co.

rights of personal representatives in (Dec. 17, 1881), 9 R. 364, a miner

case of death are to be found in recovered under tlie Act for an injury

Appendix A. As to the Avords "as caused by the falling in of the roof

if tiie workman," &c., see Gn'Jidisv. of a main roadway. The uversmau

Dudley, page (559, supra, had caused it to be partially .secured,

(k) See page 659. As to the onus and told the miner to go on with

of negativing the exceptions in sec. his work. Though not thinking it

2, see Grand Junction Jl>/. Co. v. .suJficiently propped, the miner con-

JVhite (1841), 8 M. & "W. 214. tinned to" work, in the expectation

(/) See page 663. that more men would return and

(m) The sub-section does not run complete the prop]iing. The Court

"unless the employer or such superior of Session thought he was entitled

already knew," kc, but "unless he to bring an action, although he had

(the Avorkman) Avas aware that the continued working Avith knowledge

employer or such superior already of the danger. " If there is a known



668



THE LAW OF MASTER A'SD SERVANT.



3. The amount of compensation recoverable under this Act shall not
exceed such sum as may be found to be equivalent to the estimated
earnings, during the three years preci-ding 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 (n).

4. An action for the recovery' under this Act of coni])eusation for
an injuiy shall not be maintainable unless notice («) liuit injuiy lias



danger which anyone could see, that
is one thiug. ]5ut wlieu he has
reported a danger, and liis report
has been so far acted u}ion as to have
the thing complained of made
practically secure, and it has turned
out that the oversman was wrong
and the place Avas not secure, it
would be a hardship, and it wonld be
oppression to make the man suli'er.''
Lord Justice Clerk.

(«) See page 678.

(o) Notice is a condition precedent,
and no exception is made, except in
case of death even wliere the full ell'ect
of the injury is not detected mi til after
the expiration of six weeks. A curious
r(!sult seems to follow : — If A. is in-
jured and six weeks expire without
notice being given, no action is niain-
tainahle ; if he subsequently dies, the
right of action revives.

In Moyh v. Jenkins (Dec. 6,
1881), L. K. 8 Q. B. T). 116, 51 L.
J. (). B. 112 ; .30 W. 1!. 3'24, it was
lield that tlie notice must be in writ-
ing, though tlie employer had arrived
on the spot after tlie accident took
place, and liad ;issistetl and given
moniy to the plaiiitiif, and tliough
within six weeks tlie defendant re-
ceived a letter written for tlie plaintilf
l)y the matron of the hospital, in
which it was said, "I beg to inform
you that it was found necessary to
ain])utate the right arm of Alfred
Moyle to-day, and lie is getting on as
well as can be expected." " The terms
of sec. 7," observed Grove, .1., "can-
not icfcr to a verbal notice. All tlic
provisions as to .servici^ through tlie
post, &c., would be Useless if verlial
notice would sudicc. Thisisnotaques-
tion of 'defect or inaccuracy' in tin;
notice. The letter mentioned in tin;
case docs not come in any respect
within sec. 7, and indeed it was not



contended that it did. Then can it
be said that sec. 4 contemplated a
verbal notice sucii as a workman say-
ing to his eni])loyer, ' I have broken
my arm,' when sec. 4 merely refers
to the time within which notice must
lie given, and sec. 7 contains all the re-
quirements of a written notice ' It has
been argued that sec. 7 is immaterial
if verbal notice is given. But I can-
not separate sec. 4 from sec. 7, and
thereby make sec. 7 almost if not wholly
useless. The Act has, for good reason,
recjuired notice to be given, to jiri'Vent
frivolous actions, and to enable the
employer to ascertain wliether he is
really liable,or whether there has bei-ii
an injury at all, or whether the claim
is fraudulent. The proviso in sec. 4,
for dispensing with notice in case of
death, seems to show that the case of
death is the only one in wliiili notice
is not necessary to tlie maintenance
of the action." In the same case,
Lopes, .1 . , observed : "A letter was
sent in this case, but the learned
counsel for the plaintiff rightly ad-
mitted that he could not rely on it as
a written notice." In Keen v. The
MlUicall JJoe/c Co. (Marcli If), 1882),
L. K. 8 Q. B. D. 482: 51 L. .1. (.>. lb
277 ; 4G L. T. N. S. 472 ; 30 W. R.
503, the above decision as to the
necessity of a written notice was ap-
proved. An accident occurred to tlie
])laintiff on the31st Way, 1881, and a
veibal icjiort of it was made the same
day by tiie ]ilaintiif to the defendants'
inspector, wlio took down in writing
the details, and afterwards, on tlic;
same day, sent a memorandum of
them to the .superintendent of the
defendants. On the 7tli .June the
j)lainli(rs solicitor wrote to the secre-
tary of the defendants the following
letter : —



EMPLOYKRS LIABILITY ACT.



GGO



l)eon suj^taineil is given within six weeks, ;uul tlie action is commenced
■within six months from the occnrrence of tlie accident causing the injury,
or, in case of death, within twelve months from tlie time (jfdeatli : Pro-



"llhJioir, 1881.
*' Sin, — I am instructed by (Jeorge
Keen, of 136, Khodeswull Koad,
Limehouse, to apply to you for com-
pensatiou for injuries received at
your dock, particulars of which have
already hecu communicated to yom-
superintendent. I sludl l)c ghul to
hear from you on the subject.
" Yours faithfully,
(Signed) -'Hknuy Bkadlf.y."

The ( 'ourt held that this was Tint a
sufficient notice, niul nonsuited the
plaintitf. .V new trial was refused l)y
the (>uoen's T»ench Division. On
appeal to the Court of Appeal, Cole-
ridge, C. J., said, with reference to
the 7th section, "The words there
are apt only to a written notice, and
it is clear, I think, that that section
cannot lu' fairly fullilled, except l>y
the notice Ix'ing in writing. It has
been argued ^tliat a notice to satisfy
this enactment can be made l)y a
reference in it to some other docu-
ment. In my opinion it cannot. If
the letter relied on in this case had
referred to some written document in
which the nature and particulars (;f
the [injury were given, it would not,
I should have thought, have becrx a
compliance with the Avords of this
enactnifut, which describes the
notice as one and single, containing
in it the incidents which the statute
has re(|uired it to contain as a condi-
tion precedent to maintaining anj-
action."' Brett, L. J., said: "It
seems to nie that there must be a
notice in writing of the injury sus-
tained, that it must be served on the
em]ployer, and given within six weeks
from the oeeurrence of the accident,
that it must be a notice that iiijuiy
has been sustained, and must contain
certain partieulars, such as the cause
of the injury, and date at which it
was sustained. It must give also the
name and address of the jierson in-
jured, liut it need not be signed by
anv one. However the notice under
this Act is not to be deemed invalid



by reason of any defect or inac(;uracy
uidess tli(! Judge who tries the action
is of opinion that the defendant is
prejudiced Ity it, and that the defect
or inaccuracy was for the purpose of
misleading. It seems, therefore, to
me tliat a notice might be available
evt'n if it should be defective in any
of the matters re(piired to be stated,
as for instance, if it did not in terms
name the day when the injury Avas
sustained, butshoAved it by reference,
so also if it did not descrilie the cause
of the injury with sullicient particu-
larity, but still did not describe it so
as to mislead. I agree that as a
general rule the notice must be given
in one notice, but I am not prepared
to say that it would be fatal if it were
contained in more than one notice."
Holker^ L. J., also declined to ex-
press an opinion that the notice must
be in one document.

In Stone v. Ifi/dc (Ainil 3, 1882),
L. II. 9 Q. B. D. 76 ; 51 L. J. Q. B.
452 ; 46 L. T. IST. S. 421 ; 30 W. B.
816, the alleged notice was as
follows: — "JMr. Stone, of 193, St.
George's Eoad, Peckham, has con-
sulted me respecting the injuries
sustained by him wdiile in your em-
ploy on the 19th of November last,
and also respecting the improper
manner in which he was discharged
by j'ou. He is now, and has for some
time past been, under medical treat-
ment at ( Juy's Hospital as out jiatient,
particularly for the injur}' to his leg,
and has been unable to i>arn anything,
and will be so for some tinu? to come.

" I shall be glad to know if you
care about your medical man seeing
him, and what you ]n"opose to do in
the matter.

(Signed) "AV. H. Matthews.'

The County Court Judge held that
this was not a suliicient notice, and
that the defect was not a "defect " or
" inaccuracy '' within sec. 7. The
Queen's 1 jench Division, however, took
a dilferent view. The County Court
Judge "has here found that this defect
is such as woidd prejudice the defend-



670 THE LAW OF MASTER AND SERVANT.

vidod always, that in rase of dcatli the want of such notice shall be no
liar to the maintenance of such action if the judge sliall be of opinion
that there was reasonable excuse for such want of notice (j)).

o. There shall be deducted from any compensation awarded to any
■workman, or representatives of a workman, or persons claiming by,
under, or through a workman in respect of any cause of action arising
under this Act, any penalty {q) or part of a penalty which may have
been paid in pursuance of any other Act of Parliament to such work-
man, I'epresentatives, or persons in respect of the same cause of action ;
and where an action has been brought under this Act by any workman,
or the representatives of any workman, or any persons claiming by,
under, or through such workman, for compensation in respect of any
cause of action arising under this Act, and payment has not previously
been made of any penalty or part of a penalty under any other Act of
Parliament in respect of the same cause of action, such workman, repre-
sentatives, or person shall not be entitled thereafter to receive any
penalty or part of a penalty under any other Act of Parliament in
respect of the same cause of action.

6. — (1.) Every action for recovery of compensation imder this Act
shall be brought in a county court, but may upon the application of
either plaintiff or defendant, be removed (r) into a superior court in like
manner and upon the same conditions as an action commenced in a
county court may by law be removed (.s).

(2.) Upon the trial of any such action in a county court before the
judge without a jurj' one or more assessors may be appointed for the
purpose of ascertaining the amount of compensation.

ant in his defence, and must have trial on the ground that the defendant

Ijeen made for the imrposc of mislead- had been informed of the accident by

ing ; but there was no evidence before his own foreman, was refused,

him at all, so that it is not possible 0*) In Macoj v. Hodson, L. T.,

for him to fuid as a fact that it was Dec. 24, 1881, p. 140, the County

for the purpose of misleading." Court Judge lield that tlie fact of

In (Jlarksuii v. Musgrave (1882), the defendant having tluee times

L. R. 9 Q. B. D. 386 ; 51 L. J. pronused compensation, was not a

<J. B. 525, IjI W. R. 47, the notice said "reasonable excuse." The question

tliat the plaintiir "was injured in what is "reasonable excuse" appears

consequence of your negligence in to be left in the discretion of the Judge,

leaving a certain hoist in your ware- (7) For example, 35 k 36 Vict. c.

iiouse un]n-otected, whereby the saiil 76, s. 68.

J. C. luul lu^r foot caught in tlie {r) Davidson v. Moss, L. T., A])ril

casement of Hie said hoist." Tlie 9, 1881, p. 405.

jury found that the negligence was in (s) See 9 & 10 Vict. c. 95, s. 90 ;

allowing the i)laintiff to go alone to 19 & 20 Vict. c. 108, s. 38 ; the appli-

the hoist ; hut that there was no cant must give security which is not

nc"lif'encc in leaving the hoist un- to exceed £100. See Mioidai/ v. T/ic

protected. Held a sullieient notice. Tfmmrs Iron Jrorks Co., Vi'. N.Nov.

" The notice is not recpiired to state 18, 1882 (motion for trrtiarnri hy

the cause of action, but only tlie j)Iaintitf on ground tliat i)laintiff was

cause of injury," Cave, , I. ])roseeuting another action for tlie

In Jdfinis V. 2^ir/htinr/alc (sec .sanu! cause in a su])eri<>r Court ;

note («) ) an application for a new application refused).



employers' liability act. 071

(3.) For tlie purpose of re^'ulaling the (;oii(lition>^ and mode of appoint-
ment and remuiKMiition of such assessors, and all matters of procedure
relatin<^ to their duties, and also for the ]iurpose of consolidatinj,' any
actions under this Act in a county court, and otherwise preventing
multiplicity of such actions, rules and retaliations may be made, varied,
and repealed from time to time in the same manner as rules and retal-
iations for regulating,' the practice and procedure in other actions in
county courts.

" County court " shall, with respect to Scotland, mean the "Sheriff's
Court," and shall, with respect to Ireland, mean the " Civil Bill Court."

In Scotland any action under this Act may be removed to the Court
of Session at the instance of either party, in tlie manner ])rovided by, and
subject to the conditions 2)rescribed by, section nine of the Sheriff Courts
(Scotland) Act, 1877.

In Scotland the sheriff may conjoin actions arising out of the same
occurrence or cause of action, though at the instance of different parties
and in respect of different injuries.

7. 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 one employer, upon
one of such employers.

The notice may be served by delivering the same to or at the
residence or place of business of the person on \\hoin it is to be
served.

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

Where the employer is a body of persons corporate or unincoiporate,
the notice shall be served by delivering the same at or by sending it by
post in a registered letter addressed to the office, or, if there l)e more
tlian one office, any one of the offices of such body.

A notice under this section shall not be deemed invalid 1)y reason of



{t) Brigrfs v. Jloss (1808), L. E. box in tlic yard used liy the foreman.

3 Q. B. 268. Tlie Court laid it down that "a

(v() \n Adams w. Night hujaJe,' Lain notice under the Act must be deli-

Timcs, April 15, 1882, p. 424, the vered in such a luanncr that it is

Court were of opinion that a notice reasonable to expect that it will come

had been improperly served which to the defendant's knowledge in the

had been left at the defendant's jilace ordinary course of business." See R.

of business out of business hours, and v. Frccmnn of Leicester (1880), 15 Q.

not in the letter box, but in a wooden B. 671.



672 Tllli: LAW OF JIASTKll AND SERVANT.

any defert or inaccuracy lliorcin, unless the judge avIio tries the action



Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 70 of 77)