LEAVE. FIRST READING. (Hansard, 17 March 1879)

§ THE ATTORNEY GENERAL (Sir JOHN HOLKER)
I am about to ask leave of the House to introduce a Bill to amend the Law relating to the Liability of Employers for Injuries sustained by their Servants. I am aware it is somewhat late in the evening to address the House at any length on this matter; but as the Bill is a very important one, I must ask the House to give me their attention for a few minutes, while I explain the measure we propose. The liability of employers for negligence occasioned by their servants in the course of their employment is a question which has recently led to a very considerable amount of discussion. It has been said that the law on this subject is a hard law—a law which is exceptionally unjust; that there is an urgent necessity for this Bill; and that the present law is unfair, unequal, and unjust. In order that the House may appreciate and decide whether the existing law is unfair, unequal, and unjust, let me explain, in a very few words, what the law is as it stands to-day. Any master, in regard to those who are not in his employment, and the outside public, if I may use the expression, is liable for his own personal negligence, and for the injuries occasioned by the negligence of his servants, if such negligence is caused in the course of their employment as such servants. With respect to persons in the employ of the master, although masters are liable for any personal negligence of their own, or for personal default of their own, the law does not provide sufficient materials, or sufficient machinery, for punishing the negligence or default of their servants. Although the masters are liable to the persons in their employ, they are not liable for injuries which are occasioned to servants in their employ in consequence of the negligence of those who are their fellow servants. Now, this distinction, so far as I can make out, has this foundation—that when servants enter into the employ of the master they impliedly take upon themselves the risk which arises from negligence of which their fellow-servants may be guilty. It may 1136 be said that although this may be the doctrine of Courts of Law, it is not a doctrine which can be justified really and truly, and that no such position in law should be allowed. I must admit that the question is one of very considerable difficulty—I may say, of enormous difficulty. Different minds may take different views on this subject. On the one hand, it is said by the workmen, and by those who direct workmen, and whose counsel workmen follow, that there should be no difference in the law, and that masters should remain liable for injuries occasioned by those in their employ, just in the same way and extent as they are liable to the outside public, or those not in their employ. It is said, in effect, that they should be liable to the utmost extent of their fortune to their servants for any negligence incurred by their negligence, although it might have been committed without their consent and without any authority from them, and may, in fact, have been committed by the servants doing that which the master had expressly and distinctly forbidden. Of course, there is this merit in it—that is to say, that it is a simple proposition, and if carried into effect, it would make the law perfectly equal, and it would remove every possibility of complaint. But it involves a proposition of a very serious nature. Is it just to subject an employer to such a vast additional liability? Let us take a simple illustration. The owner of a mine, or the worker of a mine, who lays down the best rules he can for all who work for him, and takes every precaution which science and ingenuity and skill can suggest to prevent accidents; nevertheless, one of his workmen, in defiance of orders not to go to a part where there may be a dangerous gas with a naked light, does go there—there is an explosion, and it may be that hundreds of men in that miner's employ are either killed or seriously injured. If the mine worker is to be rendered liable to the servants who are injured by this negligence, the consequence would be that he would be utterly ruined, although he is not himself in any way to blame for the explosion. If the law subjects a man to such an enormous responsibility, the result would be to stop mining altogether. Let me put a humbler illustration. A greengrocer has a cart, and has 1137 taken care to engage the best servant he can get. This servant takes out goods and goes to a place where they are to be delivered, and in the course of his round is guilty of some negligence by not looking around him, or so on, and drives over some lawyer who is making thousands a-year, or over a Bishop, or somebody else equally important. Is this greengrocer, for no default of his own, to pay such compensation as he may be called upon to pay for such an injury? It is difficult to say that such a liability as this should be placed upon the master. In dealing with such matters we have to consider the consequences, and they would in such a case be that every master would have thrown upon him such an enormous additional liability that he would be unable to compete in the race of life, and the ultimate consequences must be the ruin of the masters, and with the ruin of the masters would be involved the ruin of the workmen, for whose benefit we are now called upon to legislate. Other people take a different view. They say, although the exception to which I have drawn attention renders the master not liable for the negligent acts of the fellow-servant—although the law may not be justifiable on any logical ground; yet to subject the master to liability for the negligent acts of his servant, if done against his will and without his authority, would be essentially unjust. Those who take this view say—"You can easily remedy this, and you can remove the injustice by making the masters only liable for their own negligence and not for the negligence of their servants, and so putting everybody upon the same footing." Each of these different views have prevailed, one Party advocating one alteration of the law, and the other advocating another alteration in an entirely opposite direction. These conflicting views, after being constantly brought before the House and the country, were in June, 1877, referred to a Committee appointed by this House, and to that Committee the Bill introduced by the hon. Member for Stafford (Mr. Macdonald) was referred. The Committee took a good deal of evidence, and discussed the matter with a great deal of care, and there was a considerable difference of opinion amongst the Members of that Committee. Ultimately, however, they drew up a Report, which was not acquiesced 1138 in by the whole Committee, or by anything like the whole of the Committee; but it was the Report of the majority of the Committee. That most able and learned Report was drawn by my hon. and learned Friend the Member for Coventry (Sir Henry Jackson). That Report has been under the consideration of the Government, who have also considered the subject, both before and since the appointment of the Committee, and they certainly do not agree in the extremest views of either side. They do not think it wise to subject masters to the enormous additional liability which many of the workmen of the country, and those who advised them, ask that they should be subjected to. But, at the same time, the Government cannot take the view that the law should be altered to the extent that some of the masters say it should be altered. The Government do not consider it would be wise to free masters from all liability for the negligence of their servants; and they have come, indeed, to very much the same conclusion as that which has been come to by the Committee in their Report. There are certain cases of incorporated companies where no one, from the very nature of the society or Corporation, can be made liable or responsible for the acts of his fellow-servant. By the very nature of the case the Corporation cannot be made liable. In this case it is thought right, where there is a Corporation of this sort, that those who are in truth the managers of the business of the Corporation, or a distinct department of the business of the Corporation, should be placed in the position of masters and outside the category of fellow-servants. And if any accident or injury should be occasioned by the negligence of one of these persons, those placed outside the category of fellow-servants, and who was in the position of manager or partner in the business, then the Corporation or Company should be liable for that person's negligence, although he may be a fellow-servant. So that, in the case of private concerns, where they are placed under the management of managers, or where part of the business, or important departments of a private concern are placed under a manager, it is fair to consider that the master has delegated to the manager the control and management of that part of the business; and it is 1139 fair to consider, as we do, that in such a case the manager shall be considered in regard to the master as his alter ego, and the manager cannot be treated as a fellow-servant. These are the views which the Government entertain, and they accordingly propose to enact that there shall be in some employments specified in the Bill—such as railways—persons intrusted by the Company with the management of the railway or of the traffic-way, or with any particular part of the railway, traffic-way, or any station of the railway, or any work connected with, the railway—that the person so intrusted shall be considered servants in authority. Again, persons in charge of or managing any great concern—such as a particular pit or colliery, whether above ground or under ground—shall be considered servants in authority with regard to manufactories and works. A servant in authority is to be one who is appointed by the master as a manager of a factory, or works, or otherwise, or of any distinct branch, or portion thereof. Then the Bill, in a very simple enactment, declares that in regard to those persons, if they are guilty of negligence in the course of their employment, and that negligence occasions injury to any fellow-servants, the master of the Railway Company or the Mining Company shall be liable. That is the proposition which I have to submit to the House. I do not know whether it is a proposal which will satisfy what, perhaps, I may call, without speaking disrespectfully, a popular clamour. I cannot tell whether it will do so; but I cannot help thinking that the thoughtful part of the community will accept this Bill as imposing upon masters and employers of labour who, after all, are the main source of the prosperity of this country, as great a liability as they ought to be made to bear. The hon. and learned Gentleman concluded by moving for leave to bring in the Bill.

§ MR. MACDONALD
said, there were one or two errors in some of the remarks of the hon. and learned Attorney General to which he must call attention. The illustration he gave of the humble greengrocer was exactly the law now. If the greengrocer's man upset a Bishop, who, he learned for the first time, was an important individual—he always thought Bishops were exceedingly 1140 humble individuals, following in the footsteps of their Master—the greengrocer was liable for the injury done. Again, the hon. and learned Attorney General said that if a heavy responsibility were thrown upon the masters, they would be handicapped in the race of competition; but he was informed that the principle of the Bill, which he himself introduced on behalf of the great bulk of the working people of the country, was exactly the law of France at the present time. The law of Germany, again, was very largely in the same direction. In Belgium, again, as he had ascertained by a personal visit, the law laid down was very much the same as that which he had ventured to suggest as desirable to pass for the benefit of the workmen of this country. Yet those countries were now crying out for protection against British manufactures, and from British industries. Therefore, he had a perfect right to say that the masters could very easily assent to the law asked for. Again, the hon. and learned Attorney General had said that it was the workmen, and those who acted for them, who held these views; but he must remind the House that a very distinguished Judge, who was by no means one of those who agitated the working people of the country—Lord Justice Brett—gave it as his opinion that the law, as it now stood, could not be supported. Several other legal gentlemen came before the Committee, and gave an opinion equally strong in regard to the matter. The hon. and learned Baronet the Member for Coventry (Sir Henry Jackson) said, quoting a case that had happened in Massachusetts, that the workmen entered upon these risks knowing, as well as anybody else, what they were. He could only say that the illustration used was one of the most feeble, and, if he might say so, one of the most foolish, that possibly could be uttered by any man. The hon. and learned Attorney General said that such a law as he advocated would throw a terrible responsibility upon the employers; but he must know well that this was the law of Scotland up to the year 1857; and yet that was the period when Scotch manufactures increased more largely than at any other period. He thanked the hon. and learned Gentleman the Attorney General for having presented this modicum of what was 1141 wanted, because he knew full well that by-and-bye they were bound to have more. In the case of the Factory Acts, after dealing with the question in a general way, the Home Secretary at last took them well in hand, and settled them in a manner which thoroughly met the wants of the people of the country. He felt perfectly satisfied that the question between capital and labour would also be finally settled in a similarly satisfactory way. He would strongly recommend the hon. and learned Gentleman to take a little more thought on the subject, and to bring in a Bill with the strong hand which characterized the Secretary of State for the Home Department in dealing with the Factory Acts. He asked him to do this, because he felt convinced the present Bill would only disturb the question, and would not settle it; and, therefore, he wanted to see the question grappled and finally dealt with at once and done with. He should like to ask the hon. and learned Gentleman when the Bill would be printed and brought in for the second reading, because he might rest assured that it would not pass in its present form.

§ MR. COURTNEY
wished to ask two questions by way of explanation. In the first place, was it proposed to make the responsibility of the superior master for the act of a servant in authority unlimited? And next, did the responsibility of the person placed in authority extend to all persons in the same employ, or only to the particular class under him? For example a stationmaster might be guilty of negligence which would expose not only the persons in the station to accident, but guards, or even a director or secretary travelling along the line. Was the responsibility of the Railway Company to extend upwards and laterally as well as downwards?

§ MR. SHAW LEFEVRE,
said, although the hon. and learned Attorney General spoke in so hesitating a tone in the early part of his speech, when he came to describe the details of his Bill, it appeared to him to go somewhat beyond the recommendations of the Committee. If it were so, he was glad to find the Government were moving in the right direction. However, this was a matter which required very careful consideration, and only with the Bill before 1142 them could they understand perfectly the details of the explanation which they had just heard. He hoped the hon. and learned Gentleman would explain the points raised by his hon. Friend behind him (Mr. Courtney), because it was a matter which came under the consideration of the Committee; but the Committee did not, in that case, think the Corporation ought to be liable for the acts of the stationmaster. If, however, the hon. and learned Attorney General contemplated including such a case, he would include also many other similar cases, and go much further towards settling the question than his speech at the commencement would have led them to suppose. He believed also that the hon. and learned Gentleman was not quite accurate in his explanation of the law. He was, of course, scarcely prepared to dispute such a question with him; but he certainly thought that in the circumstances stated, the greengrocer would under the present law be responsible.

§ SIR HENRY JACKSON
said, he had hoped that the question would have been considered from another point of view, and that was, whether the law affecting the liability of masters not only to servants but to the general public did not require amendment. The great difficulty the Select Committee felt, and the difficulty which he suspected the Government and the House would feel, was that which resulted from the apparent anomaly which at present existed. They had a master responsible to third persons, and yet not responsible to his own servant; therefore, the servant who said this was a hardship upon him had a primâ facia case; but the question to be determined was whether the general law was right—whether the exception was to be advocated or the law condemned? He had always entertained a very strong opinion that the true juridical principle was to make everybody responsible for what he himself was actually to blame for, and for nothing else. He wished the Government had boldly grappled with the law, and put it, as it affected everybody, on a firm and satisfactory footing. Had it been on such a footing the question as to common employment and the relation of master and servant would never have arisen. As, however, they had shrunk from doing that, he saw little to complain of in the Bill as announced. It went 1143 somewhat further than the recommendations of the Committee, which simply were that no workman should ever be without a master for whose negligence he could obtain redress. At present, there were many workmen who served Corporations and persons who took no personal part in their work, and that was a state of things which the Committee thought ought not to continue and were willing to see redressed. His hon. Friend the Member for Stafford (Mr. Macdonald) looked upon the Bill as a modicum, and as a concession to the principle which he (Sir Henry Jackson) himself had never seen any basis for. If the principle of taking everybody out of the category of common employment was found in the Bill when they came to discuss it, he should certainly oppose the second reading, because it was a principle which he conscientiously believed to be a very bad one.

§ THE ATTORNEY GENERAL (Sir JOHN HOLKER)
said, in using the illustration of the greengrocer, his simple object was to show how heavy the present law was in some cases. With respect to the question of the hon. Member for Liskeard (Mr. Courtney) whether the liability for the neglectful act of a servant in authority was unlimited, the Government did propose that it should be unlimited, and it would be extended to any servants of the master. In the case of a railway, supposing some servant to be guilty of negligence and some other servant of the railway, belonging to no matter what branch of the employment, and no matter what his rank, were injured, the Company would be liable. The Bill would be printed at once. It was impossible to say when the second reading would be taken, but it should be taken without delay.