John Macdonell.

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

. (page 71 of 77)
Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 71 of 77)
Font size
QR-code for this ebook

arising from the injury inentionod iu tlie notice shall be of ojnnion that
the defendant in the action is prejudiced in his defence by such defect
or inaccuracy, and that the defect or inaccuracy was for the inirpose of

8. For the purposes of this Act, unless the context otherwise
ret lu ires, —

The expression " person who has superintendence entrusted to him "
mealis a person whose sole or priucii)al duty is that of superintend-
ence, and who is not ordinarily engaged in manual labour :

The expression " employer " includes a l)ody of i)ersons cori)orate or
unincorporate :

The expression " -workman " means a railway servant and any person
to whom the Employers and Workmen Act, 1875 {x), applies.

9. This Act shall not come into operation until the first day of
.January one thousand eight hundred and eighty-one, which date is in
this Act referred to as the commencement of this Act.

10 This Act may be cited as the Employers' Liability Act, 1880, and
shall continue in force till the thirty-first day of December one thousand.
ei"ht hundred and eighty-seven, and to the end of the then next Session
of Parliament, and no longer, nnless Parliament shall otherwise deter-
mine and all actions commenced under this Act before that period shall
be continued as if the said Act had not expired.

The Col-nty Court Rri>i;s, 1880.

1. These rules may be cited as "The County Court Eules, 1880,"' or
each rule may lie cited as if it had been one of " The County Court Rules,
1875 " and had l)een numbereil therein by the number of the order and
rule placed in the margin opposite each of these rules.

2. An order and rule referred to by number in these rules shall mean,
the order and rule so numbered in " The County Court Rules, 1875."

(3;) See part 11. ill. XIV. "Work- s. 11. P.ut section 11 ucMs, ".such

mnu" includes "woman," 13 & 14 repeal .shall not, in tlic ab.sence of any

Vict e 214. The Employers' enactment to tlie contrary, extend to

f iah'ilitv Act ilocs not extend to or allect any provision contained in

\vorlcmen in the .service of tlie Crown, any otlier Act of Parliament passed,

which is not mentioned in it. Max- or to he passed, whereby workman is

well on Statutes," p. 112. defined by refenmco to the persons to

Seamen and apprentices to the sea whom the I'.mploycrs and Workmen

service were expressly exelud.;d from Act, 187r., api)lies."_ It follows that

the operation of the Employers and seamen are not within the Employers

Workmen Act, 1875, by .sec. 13. Liability Act.

Tliis was n-pualed by sec. 11 of the As regards apprentices, .see sec. 12

McrcliantSeamen ( Tavinent of Wages. of Employers and Workmen Act.
&c.) Act, 1880, r.i & 41 Viet. c. K,,

employers' liability act. CT-'^


The E.MrLOYKR;^' Liaiulitv Act, 1880.
Service (if Suiiviiwiis.

13. A siuinnons in an action ln'ouglit inuU'V the provisions of tlio
Emi)loyci'.s' Liability Art, I't^S^'i, wIutc it is to Le served in the home
district, shall be delivered to the bailiff thirty-two clear days at least,
and where it is to be served in a foreign district, thirty-five clear days
before tlie return day, but it shall in either case be ser\ed thirty clear
days before the return day thereof.

14. Particulars of demand .shall Ijc filed by the plaintitt' at the time of
the entry of the plauit, whatever the amount claimed may be ; and a
copy thereof shall be forthwith sent to the judge.

15. The particulars of demand .shall .state in ordinary language the
cau>e of tlie injuiy, and the date at which it was sustained, and the
amoruit of compensation cUiimed, and where tlie action is brought by
more than one plaint! If, the amount of compensation claimed by each
plaintirt", and where the injury of which the plaintifi' complains shall
have arisen by reason of tlie act or mnission of any jierson in the service
of the defendant, the jiarticulars diall give the name and descrijition of
such person.


IG. Notice of a demand for a jur^- shall be given in writing to the
registrar of the Court fifteen clear days at least before the return day,
and the summonses to the intended jurors shall be delivered to the
bailifl" forthwith.


17. Any person who shall, as hereinafter provided, be appointed liy
the judge to act as an as.sessor in the action, shall be qualifieil so to act.

18. "Where no demand for a jury shall ha\e been made, a jiarty who
desires assessoi-s to be appointed shall, ten clear days at least before the
return daj', file an ajiplication. accf)rding to the form in the schedule,
stating the number of assessors he ])roposes to be appointed, and the
names, addresses, and occupations of the persons who may have expressed
theii" willingness in writing to act as assessor.?. If the applicant has
obtained the consent of the other party to the persons named being
appointed, he shall file such consent with his application.

19. Where the application for the apjiointment of assessoi-s has been
made Ijy one party to an action only, the registrar shall forward the
application so made to the other party who may then either file an
application for assessors, or file objections to one or more of the persons


20. Where separate applications are tiled by the parlies, no objection
to the persons proposed shall be made by either party, but tlie judge may
appoint from the persons named in each application one or more assessor
or assessors, provided that the same number of assessors be appointed
from the names given in such applications respectively.

21. The applications for tlie appointment of assessors, together with
any objections made to the persons proposed, shall be forwarded by the
registrar to the judge.

22. Where the judge shall grant the application for the appointment
of assessors he shall appoint such of the persons proposed for assessors as
he maj" think fit, subject to the provisions hereinbefore or hereinafter
contained in this ordc'r.

23. In any action where no demand for a jury has been made, and an
application for the appointment of assessors has been filed, the judge
may, either before or at the return day, nominate one or more additional
persons to act as assessor or assessors in the action. Where no applica-
tion for assessors has been made, the judge may, if he think fit, appoint
any one or more persons to act as assessor or assessors in the action before
or at the return day.

24. If at the time and place appointed for the trial all or any of the
assessors appointed shall not attend, the judge may eitluT proceed to try
the action with the assistance of such of the assessors, if any, as shall
attend, or he may adjourn the trial generally, or upon any terms which
he may think fit, or he may appoint any person who may be available
and who is willing to act, and who is not objected to or who if objected
to is oljjected to on some insufficient ground, or the juilge may try the
action without assessors if he shall think fit.

25. Every person nominated as an assessor shall receive for each day's
attendance in every action the sum of two guineas, together with such
further sum, if any, for his expenses as the judge may order.

26. Every person rei^uiring the judge to be assisted by assessors shall
at tlie time of filing his application deposit with the registrar the sum of
two guineas for each assessor proposed, and such payments shall be con-
sidered as costs in the action, unless otherwise ordered by the judge.
Provided that where a ])eis(in proposed as an assessor shall have in
wi'iting informed the registrar that lie does not reciuire his remuneration
to be so deposited, no deposit in r^'spect of such person shall be reiiuiri'd.

27. Where an action shall be tried by the ju(lge with the assistance of
any assessors in addition to or independently of any assessoi-s proposed
by the parties, the remuneration of such assessors shall bi- bor)ie by the
paities, or either of them, as the judge shall direct.

28. If after an assessor has been ai)pointed the action shall not be
tried, the judge shall have; pt)wer to make an allowance to him in respect
of any expense or trouble which he may have incurred by reason of liis
appointment, and direct the jiayment to be made out of the sum deposited
for his remuneration.


29. The afisessors .shall sit in Court with the judge, and assist («) him
when reciuired with their opinion and sjoecial knowledge for the purpose
of ascertaining the amount of compensation, if any, wliicli tlie plaintiff
shall be entitled to recover.

CunsoUdation- of Actions or Stay of Proceediiif/s.

30. "Where several actions shall be brought under this Act against a
defendant in the same Court in respect of the same negligence, act or
omission, the defendant shall be at liberty to apply to the judge that the
said actions shall be consolidated.

31. Applications for consolidation of actions shall be made upon
notice to the plaintiffs afi'ected by such consolidation.

32. In case several actions shall be brought under this Act against a
defendant in the same Court in respect of the same negligence, act, or
omission, the defendant may, on filing an luidertaking to be bound so
far as his liability for such negligence, act, or omissicm is concerned by
the decision in such one of the said actions as may be selected by the
judge, apply to the judge for an order to stay the jiroceedings in the
actions other than in the one so selected, until judgment is given in
such selected action.

33. Applications for stay of proceedings shall be made upon notice to
the plaintiffs affected by stay of proceedings or ex ^wn-fc.

34. Upon the hearing of any application for consolidation of actions
or for stay of proceedings, the judge shall liave power to impose such
terms and conditions and make such Order in the matter as may be

35. If any Order shall be made by a judge upon an ex parte application
to stay proceedings, it shall be competent to the jilaintiffs affected by
such. Order to apply to the judge, upon notice or exjiarte, to vary or
discharge the Order so made, and upon such last-mentioned application
such Order shall be made as the judge shall think fit, and the judge
shall have power to dispose of the costs occasioned bj- such Order or
Orders as he may deem right.

36. In case a verdict in the selected action shall be given against the
defendant, the plaintiffs in the actions stayed shall be at liberty to pro-
ceed for the purpose of ascertaining and recovering tlieir damages and

37. A defendant may admit tlie truth in the plaintiff's particulars in
the actions of any statement of liis liability for such negligence, act, or
omission, and thereupon the provisions of Order XII. r. 3, sliall apply.

Wliere two or more persons are joined as plaintiffs under Order V.
r. 1, and the negligence, act, or omission which is the cause of action
shall be proved, the judgment shall be for all the plaintiffs, but the

(rt) See sec. 6 (2).


amount of coiupensation, ii' any, that each phiiutill' i.s entitled to shall be
sepai'ately found and set forth in the judgment, and the amount of costs
awarded in the action shall be ordered to be paid to such person and in
such manner as the Court may think fit.

Should the defendant fail to pay the several amounts of compensation
and the costs awarded in the action, execution against his goods may
issue as in an ordinary action ; and should the proceeds of the execution
be insufficient, after deducting all costs, to pay the -whole of the amounts
awarded, a dividend shall he paid to each jjlaintitf, calculated upon the
proportion of the amount which shall have been awarded to the respec-
tive pltuntiffs to the total amount realised after the deduction of all the
costs of the action as aforesaid.


Applicatiox for Assessors.
The Employers' LiahiUtij Ad, 1880.

In the County Court of holden at

Between Plaintiff.

The plaintiff [or defencUuit] applies to have an assessor [or assessors]
appointed to assist the Court in ascertaining the amount of compensation
to be awarded to the plaintiff, should the judgment bt- in his favour ;
and he submits the names of the following persons, who liave expres.sed
their willingness in writing to act as assessors, should theylje appointed.
{Here set out the names, addresses, and ocaqndions of the 2)ersons above
referred to.)

* The (Icft-ndant [or idaintilf] consents to tin- aiipointnient of any
of the ])ersons above named to act as assessors in this action, as ai)pears
by his consent thereto filed herewith.

Plaintiff [<ir Defendant].

Aiypointnioit htj Judijc.
I appoint

E. F.
to be assessors in this action.


* AVlieie tbe other jjarty does not consent, or where the other party has filed an
ajiiilication for the aiii)oiiitnicnt of assessors, strike tfiis iiaragrapli out.

employers' liability act. 077

We, Jolin Bury Dasent, Rupert Alfred Kettle, Alfrcil Marliucau,
Henry J. Stoimr, and James Miitteram, being Judges of County Courts
appointed to frame Rules and Orders for regulating the Practice of the
Courts and Forms of Pnjceedings therein, under the 32nd section of the
County Courts Act, 1856, have by viitue of the powers vested in us
thereby, and of all other powers enabling us in this behalf, framed the
foregoing Rules and Forms, and we do hereby certify the same to the
Lord Chancellor accordingly.

J. B. Dasext.

Rupert Kettle.

A. Martineau.

H. J. Ston'or.


I approve of these Rules and Forms to come into force in all County
Courts on the 1st day of January, 1881.

21(11 Dccmher, 1880. Selborne, C.


9 & 10 VICT. c. 93 (18JG).
".4/1 Act for compensatiug the Families of Persons killed hxj Accidents.''

Section 1 enacts " That whensoever the death of a person shall be
caused by wrongful act, neglect, or default, and the act, neglect, or
default is such as would (if death had not ensued) have entitled the
party injured to maintain an action and recover damages in respect
thereof, then and in every such case the person Avho woiild have been
liable if death had not ensued shall be liable to an action for damages,
notwithstanding the death of the person injured, and although the
death shall have been under such circumstances as amount in law to

Section 2 : " That every such action sliall be for the benelit of the
wife, husband, parent, and chihl of the person whose death shall have
been so caused, and shall be brought by and in the name of the executor
ox administrator of the person deceased, and in every such action the
jury may give such damages as they may think proportioned to the
injury resulting from such death to the parties respectively for whom


and for -wliose benefit. such action shall be brought ; and the amount so
recovered, after deducting the costs not recovered, from the defendant,
shall be divided amongst the before-mentioned parties in such shares as
the jury by their verdict shall find and direct."

Section 5 enacts "That the word 'parent' sliall include lather and
mother, and grandfather and grandmother, and stepfatlier and step-
mother ; and the word ' cliild ' shall inchide son and daughter, and
grandson and granddaughter, and stepson and stepdaughter."

27 & 28 VICT. c. 95 (18G4).

" An Act to amend the Act 9 d- 10 Vict. c. 93, for conqiensatiitg the
Families of Persons hilled by accident."

Section 1 enacts " That if there shall be no executor or administrator
of the person deceased, or that there being such executor or adminis-
trator no such action as in the said Act mentioned shall within six
calendar months after the death of such deceased person as therein
niL-ntioned Lave been brought," " such action may be brought by and in
the name or names of all or any of the persons (if more than one) for
Avhose benefit such action would have been, if it had been brought liy
and in the name of such executor or administrator."

An illegitimate child is not Avithin these statutes, DicJcinson v. North-
Eastern Rij. Co. (1863), 33 L. J. Ex. 91 ; but a child en ventre sa m^re
is within them, The George and Richard (1871), L. R. 3 A. & E. 466.

Compensation under these Acts ought not to include compensation
for wounded feelings, fimeral expenses, family mourning, Blahe v.
Midland Ry. Co. (1852), 21 L. J. Q. B. 233 ; 18 Q. B. 93 ; Dalton v.
Honth-Eastern Ry. Co. (1858), 4 C. B. N. S. 296 ; 27 L. J. C. P. 227 ;
Phillips Y. London and South-JFcstcrn Rij. Co. (1879), L. R. 5 C. P.
IX 280 ; 49 L. J. Q. B. 233 ; Pym v. Great-Northern Ry. Co. (1862),
31 L. J. Q. B. 249 ; 32 L. J. Q. B. 377 ; 4 B. & S. 396 ; 8 L. T.
734; 11 W. R. 922. In Phillips v. London and South-irestcrn Ry. Co.,
Bramwell, L, J., thus indicated the manner in which damages to a
working man should be estimated : — " I may take the common case
of a labourer receiving an injury, which has kept him out of work
for perhaps six months ; his eviikmce may be, that before the time
of the accident he was earning twenty-live shillings a week, that
during twenty-six weeks he has been wholly imapacitated for work,
that for ten weeks afterwards he has lieen al)le to earn only ten
sliillings a week, and that lie will nut get into full Avork again fur

employers' LIABfLTTY ACT. G79

twenty weeks. The plaintiff Avill be entitled to twenty-five sliillinga
for each of the twenty-six weeks, and to fifteen .shillings for each of
the ten and twenty weeks. He is also entitled to some amount
for his bodily sufi'erings, and for his medical expenses ; and in this
manner the compensation to be awarded to him is estimated. I
ha\e put a case where a definite term may be fixed upon within which
the party injured will recover ; but sujipose a case in which no defiiute
term can be fixed : in that case the direction to the jury is that they
nmst consider for themselves how long the jdaintiff will be incapacitated
from earning his livelihood, or from practising his profession, but that
they take into account the chance of his lo.sing employment if he
had not met with the accident."

A parent who sues in respect of the death of a child, niust produce
evidence of pecuniary benefit from the child's laliour ; Duchvorth v.
Johnson (18o9), 4 H. & X. 653 ; 29 L. J. Ex. 25 ; Condon v. Great
Southern and JFcsttm Rail. Co. (1865), 16 Ir. C. L. 415 ; Syhes \. North
Eastern Rail. Co. (1875), 44 L. .J. C. P. 191. In Hefheringfon v. North
Eastern Rail. Co. (1882, L. R. 9 Q. B. D. 160), which was an action
under the Employers' Liability"Act by the father of a deceased servant
of the company, the evidence was that his son used to contribute to his
support ; that five or six years ago Avhen he was out of work his sou
heli)ed him ; but that he had not done so since. The Queen's Bencli
Division, disagreeing with the ruling of the County Court judge,
decided that there was such a reasonable expectation of pecuniary ad-
vantage to the father liy his son's life, to justify the case going to
a jury.

Compensation to ;ui injured workman ought not to be reduced l:)y the
amount of insurance money received by him, but such a deduction ought
to be made when his representatives sue ; Bradhurn v. Great Western
Rail Co. (1874), L. E. 10 Ex. 1 ; 44 L. J. Ex. 9 ; 31 L. T. 464 ;
23 W. R. 48 ; Gillard v. Lancashire and Yorkshire Rail. Co. (1848), 356.
As to the rights of executors, see Bradshaiv \. Lancashire and Yorkshire
Rail. Co. (1875), L. R. 10 C. P. 189 ; and Leggoff \. Great Northern Rail.
Co. (1876), 599.



servant need not follow master, 220

apprentice need not folloAv master, xxxiii., 184, 227

seamen left, .j.j7


to servants, 302

in mines (coal), notice of, 413

in mines (metalliferons), notice of, 443

in factories, 492


of seamen, 5G4, 565


restrained from performing, 190
dismissal of, 211


master's liability for, 257

ADDENDA, xxxiii.


duration of contract of, 128
servant as. See Liability.


of hiring and service, formation of, 100

requisites of, 106

in several documents, 108

exempt from Stamp Act, 121

with seamen, 551




of wages, 553


views of as to lialulity of companies, 323



punishing, 24, 32

earnings, master's right to, 25, 220

and servant, distinction between, Ol, G!)

enlisting, 85

infont contracting as, 88

pauper, 181

master's duty to teach, 183

place of teaching, 184, 227, xxxiii.

ordered to fulfil duties, 200

dismissal of, 222, 223

action for enticing away, 230

action for harbouring, 231

assignment of, 242

to chimney sweepers, 385

imprisonment of, {134

sureties for, G34


early legislation as to, 14, 17

requisites of contracts of, 112

precedents of indentures, 112ji.

to the sea, 112, 549

defective contracts of, Gl, (19

stamp payable upon, 122

premium to be correctly stated in indenture, 122

dissolution of contract by death, 235

dissolution of contract by bankruptcy, 238


Acts, 572

award to be final, 575

arbitrators differing, 576

INDEX. 0^3

ARBITRATION— co»//>? vcd.

nomination of arbitrators, o?;;

equitable councils of conciliation, 585

formation of councils, r)8G

proceedings of councils, 587

councils not to settle future rates of wages, 587

arbitration agreements, 594

rescission of arbitration clauses, G32n.


of wages, IG-I-


within the Stamp Acts, 121
within the Truck Act, 3G7n., ?>74, 377
within the Hosiery Manufacture Act, 384
within 4 George IV. c. 34, (;3Gn.


apprentice enlisting in, 85
servant enlisting in, 85


by master in defence of servant, 23
by servant in defence of master, 23
by servant, master's liability for, 260, 297


under Em^oloyers' Liability Act, G73
appointment of, G73
trial by, G73
remuneration of, G74


of contracts of hiring and service, 242
of contracts of apprenticeship, 242


in bankruptc}-. Sec Trustee.


of wages, 1G3

of seamen's wages, 559

084 INDEX.


of servant to contract tor master, 244

of servant from position, 244

from previous dcalinf];s, 24G

cliief cases as to, 250

as to torts, 257

ambiguity of terra, 288


and servant, 55

BAKEHOUSES. See Factory Act, 494, 538


personal labour of, 239

damages for breach of contract, 239

salary and wages of, 240


eflFect of upon wages, 1 'o'l

priority of claims for wages in, 102

servant and clerk within Bankruptcy Acts, 1C5

of master, apprenticeship terminated by, 238

effect of upon contract of service, 238


contracts with, 83n.

BLAST FURNACES. See Factory Act, 532

BLEACHING WORKS. Sec Factory Act, 533


See Master, Servant, Measure of Damages.


by servant. See Loss BY Servant.

BOARD, 14Gn.


indictment for, G4




del'ective, 332, COS, GGG, CG7


liability of, 48, 50, 200



liability of for acts of servants, 49, 277


necessary to right to wages, 148


of servant, commnnieations respecting, 185

master not bound to give, 185

master's privilege with regard to, 185

proof of malice, 187

misrepresentation as to, 1 00

uttering forged, 1 0( t

counterfeiting, .")03


of vessel, liability of, 200


of servant, 32
of apprentice, 32
by upper servant, 32


of female servant, 212


appointment otj 403


father's right to earnings of, 01
emancipation of, 92

parents suing for loss of service of, 22[)
parent suing in respect of death of, 070


(j8G index.

CHI LD — coniin tied.

contributory ncg,ligencc of, 329
employment of,

in chimney sweeping, 885

in mines (coal), of, ;!'.)(;

in mines (metalliferous), 440

in agricultural gangs, 405

in dangerous performances, 467

in factories, 482

in husbandry, 54G
education of, 488, 541
forfeiture of wages of, 638


Acts, 385

apprentices to, 385

construction of chimneys, 385

children not to be apprenticed to, 385, 389

certificates of, 390


stamp on hiring of, ] 22

clerks to solicitors, 122

Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 71 of 77)