§ [FOURTH NIGHT.]
§ As amended by the Standing Committee, further considered.
§ "(1) Where any person has undertaken to execute any work within the scope of his trade or business, and for the purpose of executing such work has occupation of or control over the premises in or upon which such work is to be done, he shall lie liable to any workman engaged in the execution of the work therein or thereupon for the negligence in relation thereto of any sub-contractor or workman in the employment of any sub-contractor in the same way as 778 if such sub-contractor or workman were in his own employment. (2) Any person liable under this section shall be entitled to indemnity against any other person who would have been liable independently of this section, and any Court having jurisdiction to determine any question of liability under this section shall also have jurisdiction to give effect to this indemnity."
§ It will he in the recollection of the House that on the occasion of the discussion of the Amendment of the hon. Member for North-West Durham on this question, I stated on the authority of the right hon. Gentleman the Home Secretary, who has charge of this Bill, that it was the intention of the Government to frame a new clause dealing with the question of subcontracting, and the clause I now submit to the judgment of the House is in redemption of that promise. There is no doubt a real grievance in connection with this subject, and we think it may be met without any material increase of responsibility on the part of the chief contractor where real sub-contracts exist. The clause has been so drawn as to make the first contractor responsible for the negligence of the workmen who are engaged by the subcontractor, but this responsibility is only placed on the first contractor under very stringent and, as we think, necessary limitations which are made perfectly clear. In the first place, it must be work within the scope of his ordinary business, and, in the next, it must be work done upon premises over which as contractor he has control. No doubt the clause as it stands covers the case of a substantial sub-contractor, hut in such a case no grievance will exist on the part of the chief contractor, as the workman will naturally first sue his own employer, or, if he does not, there is an indemnity over against the sub-contractor. But the real hardship arises in a very different class of cases. A builder undertakes to erect a row of houses; he has possession of the land for the purposes of his contract; he himself has undertaken the obligation of doing the work, but—as is very often the case with builders—instead of carrying it out himself, or by persons directly employed by him, he resorts to the contrivance, in order to evade responsibility, of making a number of sub-contracts with the mason, the bricklayer, and the carpenter, and other persons, who are not really in- 779 dependent contractors, but are practically in the position of gangers. [An hon. MEMBER: Why not?] There is no reason why he should not do so, but there is a reason why ho should not interpose sham independent contractors for the sole purpose of evading his pecuniary responsibility. I will give another illustration of what I mean. In the case of certain Dock Companies it is not an infrequent thing for them to enter into direct contracts for the loading or discharging of the whole or oven parts of the cargoes of ships with "lumpers" as independent contractors, who are commonly in their own employment. With respect to one Dock Company, which I prefer not to name, a hat and coat are (I have been told) kept in the office for the use of its own servants when they assume the position of independent sub-contractors in order that the company may evade its liability. The subject is, as the House will see, by no means an easy one to deal with, but I think that under the clause which I now submit no real hardship will be inflicted, in the case of a substantial sub-contractor, on the first employer at all; but it will effectively deal with cases of the character I have described. I beg to move.
§ Clause (Sub-contracting,)—(The Attorney General,)—brought up, and read the first time.
§ Motion made, and Question proposed, "That the Clause be read a second time."
MR. D.CRAWFORD (Lanark, N.E.)
said, he had to thank the Government for dealing with the question, which was considered in 1888, and had also engaged the attention of the Grand Committee of the present Parliament. He thought the new clause would cover all existing cases of hardship and meet the justice of the case, and in confirmation of this he ought to state that ho had received a letter from a gentleman of large experience who had often acted in these matters in the interests of the men, expressing the opinion that it would cover all cases of hardship. He could give another illustration of the necessity for this clause, in addition to that cited by the hon. and learned Attorney General. A case was tried not very long ago in which it appeared that it was the custom of a shipwright in a shipyard, although he 780 had control of the premises, to let to his own foreman by contract the construction of the frames of ships. When one of these frames was being put up a crane lifting a heavy weight gave way and a workman was injured. The injured man brought an action against the shipwright; but as the foreman was the immediate employer of the shipwright, it was decided that the injured man had no remedy against the shipwright, although the latter had control of the premises. It might be worth while to refer to the Parliamentary history of the question. The Select Committee in 1887 made a recommendation on the subject to the effect that where the original employer supplied some of the plant or material he should be held liable if the plant or material proved defective. In the Committee of 1888 there was a general feeling that this provision was entirely insufficient, and he (Mr. Crawford) unsuccessfully suggested a very great widening of its scope. Ho believed he also had the honour of being the first to introduce the subject to the Grand Committee. The Home Secretary at that time expressed himself entirely favourable to the object he (Mr. Crawford) had in view, but showed he was sensible of the difficulty surrounding it, and invited suggestions. The clause which had now been produced was by far the best that had yet been seen, and would, he believed, completely meet the justice of the case on both sides.
§ MR. TOMLINSON (Preston)
said, the proposed introduction of the now clause entirely justified the Motion he made the other day. He was one of those Members who were obliged to be out of town early on Saturday morning, and he had not hitherto had the opportunity of seeing the clause. Under these circumstances, he thought the Government had not treated the House in a fair or a courteous way.
§ SIR C. RUSSELL
I may remind my hon. and learned Friend that the Amendment, as it stands on the Paper, was printed on Friday morning.
§ MR. TOMLINSON
said, he had not received the Papers containing it. He had always been favourable to the adoption of some mode of dealing with the question of sub-contracting. It seemed to him, however, rather a strong thing to make the primary contractor 781 liable to compensate a workman for injury done to him by another workman, when the primary contractor bad not engaged the man to whose action the accident was due. He could quite understand that it might be desirable to join the original contractor and the subcontractor in one action, and to give the workman a right of action against the two, leaving the men who engaged the workman primarily liable.
§ MR. WOLFF (Belfast, E.)
gave his general approval to the proposed clause. He had hitherto looked on the Bill with considerable anxiety and misgiving, as it contained no definition whatever as to what a sub-contractor was. The present Amendment seemed to be very clear on every point, and ho did not think it would work injustice. In businesses like that in which he was engaged in Belfast there was a large amount of bonâ fide sub-contracting. With reference to the suggestion made by the hon. Member for Preston (Mr. Tomlinson), he thought that where a sub-contractor was a perfectly solvent man, it would be well that he should be joined with the original contractor in the action.
§ * SIR C. W. DILKE (Gloucester, Forest of Dean)
said, everybody had been agreed on previous occasions that it was necessary to have some clause of this kind. The language of the Amendment was not very clear; but owing to the difficulty of the subject, it was not possible that the language of any clause dealing with it could be very clear. He wished to ask for an explanation of the words in the first line—"undertaken to execute." To judge from the speech of the Attorney General those words meant "contracted." If so, why was not the word "contracted" used? If a company came to Parliament for a Private Act, was it to be understood that that company undertook to execute the various provisions of that Act? Again, in some mining leases, a man undertook to get coal and in others only to pay rent. Was it to be said that in the latter case he undertook to execute the work? Clearly, a man who worked his own coal did not undertake to execute the work. If the Government shrank from the limitation of the word "contracted," it seemed to him they ought to use some such words as "undertaken with any other person." If this was the meaning a good number of eases would be ex- 782 cluded. The two cases he had referred to would be excluded, as would also be the case of a shipowner merchant who actually loaded and unloaded his own ships, but did so by contract with stevedores.
§ * MR. MATTHEWS (Birmingham, E.)
I share the feeling of my hon. Friend the Member for Preston (Mr. Tomlinson) that we are discussing this clause under a great disadvantage, not so much on account of the shortness of the notice to ourselves as on account of the shortness of the notice to the various interests concerned. This clause will affect a great variety of trades and industries, and it seems to me that we might have got considerable light from those who are directly interested in them if they had been allowed a little time to consider the wording of the clause. I, for one, largely feel the difficulties which surround the subject, and I entirely agree with those who would prevent any man who has undertaken to execute a work by contract from shifting responsibility from his own shoulders by putting a man of straw in between himself and the workman who may be injured. On the other hand, it seems to me that the Attorney General has not very successfully met this difficulty, because he admits that his clause will strike at cases in which the sub-contractor is a substantial man, as well as cases in which be is not. He seeks to reconcile us to this imperfect wording of the clause by saying that there will be no harm done to the original contractor, because he will have a good remedy over against the substantial sub-contractor. I do not know myself why the Attorney General has entirely disregarded the evidence given before the Committee of 1886–8. Those who were best qualified to speak on the subject stated before that Committee that there is this distinguishing mark between the bogus and the real sub-contractor—namely, that the man who sub-contracts for labour only is, generally speaking, a bogus sub-contractor, while sub-contractors who provide machinery, materials, and so on, are real ones. At first sight this does seem to be a better line of distinction than that which the Attorney General has drawn. I cannot help thinking that the Attorney General's 783 clause will cover some cases which he does not mean to cover. He makes a limitation to the effect that the work to be done by the sub-contractor shall be executed on the premises over which the principal contractor has control. I take the case which the Attorney General himself put—namely, that of a builder who undertakes to build a row of houses, and therefore has control over the land on which the houses are to be built. Supposing the builder bargains with another man to supply so many thousands of bricks to be made and delivered on the premises. In that case the delivery would, of course, be part of the contract with the sub-contractor. If in delivering the bricks one of the workmen of the sub-contractor injures another, surely the Attorney General does not propose that the principal contractor ought to be liable for the injury thus caused in the negligent delivery of bricks, simply because a delivery takes place on the promises. Many other cases of a similar kind might be put. For instance, a man contracts to make iron girders and to deliver them on the premises, and in course of the delivery one of the workmen injures another. I should think that such cases as are not meant to be included by the Attorney General in the clause might be met if he were to adopt some such words as were proposed by the hon. Member for Lanark (Mr. Crawford)— namely, that not only should the injury be done on the premises, but that the principal contractor should have some control over the doing of the work. Surely one great object of all these clauses is to avoid the possibility of misapplied litigation; and if we throw open the door too wide we shall have two actions instead of one. I regret, as I said before, that the clause has not been longer on the Paper. It seems to me that on the two points I have indicated it requires amendment. If the clause is read a second time I shall venture to move an Amendment providing that the principal contractor shall have some control over the work done as well as over the premises in order to make himself liable.
§ MR. DARLING (Deptford)
said, a difficulty occurred to him in connection with the way in which the London County Council now carried on its work. The 784 County Council was directly doing its own work by making contracts with various persons. Those persons, although they might have been sub-contractors under the old state of things, were not sub-contractors now, because there was no first contractor. The words used in the clause were—Where any person has undertaken to execute any work within the scope of his trade or business.The London County Council were not builders, and did not carry on any business, and ho imagined that it could not be said that when the County Council undertook to make a road they were doing it within the scope of their trade or business. Under those circumstances, if any workman employed by a small contractor met with an injury he would not be able to get damages against the London County Council, although, if the County Council had continued to act on the old plan of employing substantial contractors, the workman would have had a remedy against such contractors. This was the latest triumph of democracy working on behalf of the working classes. He wished to know whether the Government had purposely omitted workmen employed by the contractors of the London County Council, or whether they had merely drawn the clause in a hurry?
§ MR. ATHERLEY-JONES (Durham, N.W.)
concurred in the expression of regret that the Government did not see their way to put down work on premises which still remained within the occupation of the person employing the contractor. He did not think the comments of his lion, and learned Friend opposite (Mr. Darling) quite dealt with the point at issue, as the clause did not intend to affect the responsibility of any person other than the contractor. An individual who employed a contractor to do work would occupy precisely the same position after this Bill had passed as he did now. He, however, thought that the words "within the scope of his trade or business" were superabundant or mischievous, and that "occupation of or control over the premises" were ambiguous or misleading. A more accurate phrase to use would be "has access to the premises."
§ * MR. PERKS (Lincolnshire, Louth)
remarked that if the employer were liable, in the manner suggested by his hon. and 785 learned Friend who had just sat down, in all cases where he had "access to the premises" a very great injustice might be inflicted upon him. Take a contract respecting some great public work, including the erection of iron bridges. The main contractor might sub-let the contract for the bridges to another contractor who was perfectly solvent, but would, of course, reserve access by means of Inspectors to see that the bridges were properly constructed. If the suggested Amendment were adopted a workman employed by the bridge-builder might be deprived of his right of action against his immediate employer—namely, the bridge-builder, who might be a more substantial man than the original contractor, and any action that was necessary for injuries would have to be brought against the main contractor. He hoped the Government would not omit the words "occupation and control." It was clear that a man might have occupation or control of premises in such a way as to render him equitably and reasonably responsible for any accidents. For example, in the case of a contractor for public works, who used an enormous number of bricks and supplied a sub-contractor with the plant, machinery, and even the premises in which the bricks were made, it was quite right, if an accident happened through the failure of the machinery, that the main contractor, having reserved control and even in some sense occupation of the premises, should be primarily responsible. He (Mr. Perks) thought the proposed clause hit the happy medium between the injustice of some of the clauses put upon the Paper and the baldness of the Bill as it originally left the Committee.
§ MR. BARTLEY (Islington, N.)
said, he thought the words "undertaken to execute" were meant to include such a body as the London County Council. He thought that the words, "within the scope of his trade or business," might encourage people to undertake contracts not in their own business in order to avoid liability to compensate injured workmen. Under these circumstances, he would strongly urge that these words should be omitted. There was some danger of going too far with the object of bringing home liability. There was a great deal of bonâ fide work done by sub-contractors. It was the fashion to 786 protest against a man who built a row of houses sub-letting the different parts of the work. But it was really a perfectly bonâ fide transaction. He was afraid that in striving to make everybody liable all Parliament would do would be to encourage contractors turning their undertakings into Limited Liability Companies in order to avoid their responsibilities. If this were the result, he was afraid that the security obtained by the working man would be less under this Bill than under the present system.
§ MR. W. ALLAN (Gateshead)
thought that the clause in its working was, to a great extent, unpractical. He could not understand what was the meaning of the words "control over the premises," and he would suggest that the words, "and the machinery used therein," should be inserted. "Premises" represented buildings, but did not cover machinery.
§ MR. J. BURNS (Battersea)
said, he thought that the words which had been suggested, "as principal or contractor," should follow the first three words of the proposed clause. If the Government would adopt this suggestion, he believed that they would practically secure the object they were aiming at. He could not agree with the hon. and learned Gentleman (Mr. Darling), who referred to what he thought would be the effect of the clause upon Public Bodies like the London County Council. When the County Council formerly let its work to contractors, the latter took all the responsibility under the Employers' Liability Act. Now that the Council was doing the work directly, it assumed all the responsibility and liability to which the contractor was formerly subjected. In cases where a main contractor was allowed by the County Council now to sub-let certain work, the County Council held the main contractor as responsible and as liable as if the sub - contractor were non - existent. He trusted the Attorney General would adopt the words "principal or contractor," because the working men, particularly the navvies and unskilled labourers, desired the contractors to be specifically mentioned. These cases of difficulty as to sub-contracting arose where work without material was specified—where only the labour of the men was bargained for and paid for. He would give a typical instance. The hon. Member for 787 Morpeth had stated that during the construction of the Manchester Ship Canal there were accidents which caused 130 deaths, 140 cases of permanent disablement, and 1,290 cases of less serious injury. The bulk of the cases of death and permanent disablement and other injuries occurred not where material was used, as in the case of constructing bridges and girders, but in connection with land navvy work, and it was for the class of contractor who only contracted for spades for the men and the labour of the navvy that this clause was intended. If the right hon. Gentleman would accept the words he had mentioned, he would be able to bring in Public Bodies and other contractors who contracted for labour only.
§ * MR. LEES KNOWLES (Salford, W.)
wished to draw attention to the words—Any person liable under this section shall be entitled to indemnity against any other person who would have been liable independently of this section.These words would mean that a contractor liable under the section would be entitled to indemnity against the subcontractor. But he did not find any provision in the clause by which a sub-contrator might be made party to an action. That point ought to be covered.
§ * MR. LEES KNOWLES
said, the words in question appeared to him a little vague. He should have preferred them more distinct, and he trusted the right hon. Gentleman would endeavour to make them so. The plaintiff should be required to bring his action against "the contractor and the sub-contractor," or the contractor should have power to bring in the sub-contractor as a party to the action.
* MR. GIBSON BOWLES (Lynn Regis)
said, that this Debate was an illustration of the inconvenience of sending the Bill before a Grand Committee instead of Committee of the whole House. They had been told that if the measure went before the Grand Committee it would come forth perfect. Well, it had gone before a Grand Committee. Hon. Members had expected that it would come forth fully armed, like Minerva, from the brain of Jupiter. 788 But there was nothing in the measure to really cover the point to which attention was now being directed, and the right hon. Gentleman, therefore, came forward with an entirely new proposal. And the right hon. Gentleman brought the question forward, he might almost say, in an Old Bailey spirit, because he preached the doctrine to the House that every sub-contractor was probably a fraudulent man. ["No, no!"] Yes; the suggestion seemed to be that the sub-contractor was fraudulently invented in order to interpose between the real employer and his liability to the working man. He was glad to see the right hon. Gentleman the Home Secretary shake his head. Evidently the meaning of his words was not what it seemed to some Members to be. Why should there not be sub-contracting? It was an extremely good thing. It was a part of that excellent system of sub-division of labour taught to Moses by Jethro, his father-in-law, who appeared to be the most intelligent man in Exodus. When Moses was judging the people alone, Jethro suggested to him that he should appoint captainsto be rulers of thousands, and rulers of hundreds, rulers of fifties, and rulers of tens.That was a system of sub-contracting. In order to get the work well done it was desirable to divide it amongst responsible persons; but in so far as the clause was calculated to screw up and punish the sub-contractor it was evil. They did not know what "occupation of premises" meant, or "control over the premises"; hut the Solicitor General seemed ready to give one of his usual interpretations. He (Mr. Gibson Bowles) submitted that in fixing a heavy liability upon anyone in consequence of their having occupation of or control over premises the Government should consider that what was far more important was control over the workman. This was a clause which dealt with the neglect of the workman, and if Contractor A employing Contractor B was to be liable for contractor B's workmen, surely it was reasonable that he should have control over those workmen. If he could neither dismiss them nor punish them, on what principle could they hold him responsible? It seemed to him (Mr. Gibson Bowles) that they were very largely 789 increasing the opportunities of litigation. They assumed that Contractor B was a man who could not pay compensation, and to leave him open to indemnify A while holding A primarily responsible seemed to be pursuing a shadow. He considered it a thousand pities that the clause should have been for so long withheld from the attention of hon. Members. It evidently was in need of considerable amendment.
§ MAJOR RASCH (Essex, S.E.)
said that, although he was an Agricultural Member, he represented the great docks at Tilbury and the cement workers at Grays, and the men for whom he spoke were taking the keenest interest in the question of sub-contracting, and they desired that workmen should have the power to sue the principal or contractor. If the Government went to a. Division on the clause, he should have the unexpected pleasure of going into the Lobby with them.
§ MR. J. H. WILSON (Middlesbrough)
said, it was absolutely necessary that there should be a clause of this kind in the Bill. Cases had been brought under his notice in which men had been employed by a sub-contractor and had sued for compensation, but had failed to recover on account of the sub-contractor being a man of straw. He did not think that if the clause were passed it would lead to two lawsuits, because the original contractor, knowing that he was responsible, would take care to see that the sub-contractor he employed was well able to pay compensation for any injury his workmen might sustain.
§ * THE SOLICITOR GENERAL (Sir J. RIGBY,) Forfar
said, one of the objections that had been taken to this clause was that it came too late, and it was said it would have been better if the House had decided against the re-committal of the Bill at all. He should not trouble himself to deal with the matters that were past, the point being whether the Amendment they were now dealing with was the best they could do on Report? He would only say, in answer to these 790 observations, that it was by no means the fact that this clause was either new to the persons interested or to the Members of this House, especially those who sat on the Grand Committee. The matter was discussed in the Grand Committee; different clauses were brought forward to overcome the difficulties that presented themselves; but it was impossible at that time to frame a clause which met the approval of the greater part of the Members of the Committee. But, as ho recollected the matter, if there was not an express covenant there was something very much approaching to it, that on the Report stage some clause would be brought forward to meet the difficulty. The Government felt that a great number of the Members of this House were employing themselves in trying to find a solution to this question, which was understood to lie a very difficult question indeed; and before the Government committed themselves to any final form of words—and they did not even yet commit themselves finally to the words as they appeared on the Paper—they desired to see how far they would be in conformity with the wishes of other Members of the House, and they desired to avail themselves of all the suggestions they could get. They had the bonâ, fide intention of meeting a well-known difficulty, which was that a principal contractor might put off the responsibility which, under the contract, ought to rest with him upon persons who might not be so responsible in point of means, and against whom an action would not be sufficient. At the same time, they did not want to introduce a state of things which would be altogether unjust where the sub-contract was a proper one, and where it was of such a nature that the principal contractor could not be expected to take control of matters in which he, perhaps, had no skill, and where it was right and proper that the responsibility for the execution of the contract should rest with the sub-contractor. He would go through the criticisms, as far as he could remember them, in detail. First of all, it was said that it was a strong thing to throw the primary liability upon what he must call the principal contractor. They did nothing of the sort. By the Bill it was carefully provided that no existing right of action should be taken away. A totally new right of action was given subject to what 791 they considered fair and reasonable conditions against the principal contractor, who could not now be sued. It was not a primary liability; it was an alternative liability that was thrown upon him; and by other words in the clause the Government recognised, in effect, that the primary liability remained where it ought to remain—namely, with the actual employer of the servants whose negligence caused an accident, because they gave the principal contractor a right of indemnity, with all the consequences arising from that right, against the sub-contractor. If they made any rule that the sub-contractor was first to be proceeded against —which, he thought, was rather the suggestion of the hon. Member for East Belfast—they would really be establishing what they desired to avoid altogether —the necessity in many cases of a double action.
§ SIR J. RIGBY
was sorry if he had misapprehended the suggestion made by the hon. Member. He would point out there might be a technical difficulty in an action of this kind where two persons were made defendants. A person who was bound to indemnify might be made a third party to the action, and there were well-considered rules of law applicable to him. It was considered far better to rely upon the operation of those rules than to introduce, unnecessarily, a new procedure, and the clause was framed in its present way with that object. He came now to the criticism of the right hon. Baronet the Member for the Forest of Dean, who asked the meaning of the words "undertaken to execute." Did they mean, the right hon. Baronet asked, the same thing as contract, or did they mean something different; and again he asked whether the Government considered the whole cases of contract were included in the word "undertaken"? He might say at once that whether it was necessary or not, the object of taking that word instead of the word "contract" was certainly not to exclude any case of contract. It would, as they thought, include every conceivable case of contract. They also thought that there might be some cases where there had not actually been what was popularly called 792 a contract, and which the wider word "undertaken" would include. There were cases in which, under a mining lease, it might be obviously intended that the lessee should take the minerals, and yet it might not be very clear that he had contracted to get them, and it might be said, under the wider word "undertaken," that, as he had got possession of the mines for the purpose of getting the minerals for his own profit, he should be in the same position, provided he fulfilled the other conditions, as if he had actually contracted to get the coal at so much a ton. This was, however, a very minor point, and such cases would not be very numerous. Upon the whole, the Government preferred the word "undertaken"; but the matter was one of small importance, and the operation of the clause would not be materially interfered with if the word "contract" were adopted. He certainly thought there were cases that might be included in the word "undertaken," and yet might not be included in the word "contract." He was, however, by no moans clear about it. The Government desired to hit, under every sub-contract, all those contractors who ought to be hit under a clause of this kind, and they wished to meet the case of what had been called a "bogus" sub-contractor — every case in which, without any reason, the principal contractor got rid of, or under the law as it now stood could get rid of, that responsibility which naturally and properly fell upon him. The right hon. Member for East Birmingham had suggested that if the evidence in Committee were looked at more closely it would be found that these difficulties existed mainly whore the sub-contract was for labour. He quite agreed with the right hon. Gentleman that that was the main difficulty. But if they confined the clause to sub-contracts for labour, the mere providing of tackle, wheelbarrows, or things of that kind would take a case out of the operation of that clause. It was suggested that the Government had been in a hurry about this clause. He did not think that, at any rate, could be charged against them. The greatest pains had been taken in the matter. It was a difficult thing to arrive at language which would substantially express the meaning of the Government, and, at the same time, substantially meet the claims of all the 793 parties who had a right to be heard, and they hoped they had done so to a very considerable extent, if not absolutely and entirely. The hon. and learned Member for one of the Divisions of Durham (Mr. Atherley-Jones) had suggested that the words "within the scope of his trade or business" ought not to be retained. He, however, ventured to submit that they should be retained, for otherwise the main object of the Government, which was to prevent the occurrence of accidents, would not be secured in the most perfect manner. Who ought, in any case, to have the main responsibility for the work that was being done? Surely the man who was an expert in that work. Take the case of electric installation suggested. There; they did not want the main contractor to interfere or to control unless he was a man who himself was concerned in electric installation; otherwise it was outside the scope of his business, and he had never undertaken to do the electric installation on his own account. That was to be left to the man and to the workmen who understood the work. Clearly it was right that the electrician should have entire control over the electric installation, and it was better for the workmen, with the view of getting rid of the liability to accidents, and to diminish them, that such work should be committed entirely to those who understood it. Complaint had also been made by the same lion, and learned Member of the words "occupation or control of the premises." But "occupation" was pretty well understood; there was nothing vague about the word. "Control" was also a word which was used from first to last in these cases of workmen's rights against the employer. Though it might not appear to be a word of exact technical meaning, it was a word which had entered again and again into judicial decisions from the time when those actions were first brought until quite recently. "Occupation" was one thing; "control" was another. As an illustration, he took the case of an occupier of a house who wanted an electric installation put in. This man was the occupier, while the person engaged in putting in the electric installation would not be the occupier in the legal sense of the word. But if the owner and the occupier of a house 794 certain portions of it at the of the electrician, then that electrician had the control over the premises for the purposes of the work. The word "access" would not do at all. The electrician might have access and yet be under control. An illustration on this point had been given by a Judge in the case where a man had to build a wall. If the workman was told by the person employing him where to begin and what to do, then this was control; but if the workman began the work where and how he chose, this was control exercised by the workman himself. A man, therefore, must not only have access, but access which left him in the control of the execution of the works, and that kind of control the Government thought it was desirable should be placed in the hands of the' persons best suited for the carrying out of the work, He must point out, with reference to the observations of the hon. and learned Member for Lincolnshire, that the Government did not by this clause take away any responsibility which would naturally fall on any person. Take the case which had been cited— that of a bridge builder. The builder of the bridge who employed the workmen would remain liable, exactly as he did now. They took away no responsibility of his; they did not deprive the workmen of any right of action; but in the cases they hail tried carefully to guard against in this clause they gave an additional right of action against the person who would not by the present law necessarily be liable, though in many cases he would be liable. It had been asked that the Government should further limit the clause by using the words "control over the premises or machinery used therein." The Government, however, thought that they had sufficiently limited the cases in which the principal contractor could be sued by saying that he must be either in "occupation of or control over the premises."
§ MR. W. ALLAN
(interposing) desired to know what was the meaning which the hon. and learned Gentleman attached to the word "premises" in cases where workmen were employed in the open? Take, for example, the case of a jetty alongside a river. There were no premises, no buildings; he made a contract with a contractor to drive in piles; 795 the contractor brought his machinery there; where were the premises?
§ * SIR J. RIGBY
(who was asked by Sir H. James and others to speak up) was understood to say that to the legal mind "premises" would include the place where the piles were to be driven in. "Premises" and "building" were only what he might call secondary meanings; but certainly the Government intended— and they were of opinion that in law they had succeeded—to include cases where there was not a building to be seen, where there was nothing more than the land. He now came to the suggestion of the hon. Member for Battersea, that they should insert the words "as principal or contractor." He thought if the House was disposed to accept the extension which the Attorney General had proposed, the hon. Member would see that this further extension which he had suggested was not necessary. The objection the Government had to inserting the words was that they were really there already, the words in the clause covering both words. However, this was a matter for the House to consider. He had the authority of his right hon. Friend to say that they should not object too strongly to the insertion of such words, though they did think that, to a certain extent, instead of being an improvement they would rather be an unnecessary narrowing of the clause. The hon. Member for King's Lynn had some objections to the clause, but he did not think the hon. Member had fully realised—as he had already pointed out—that the Government were not taking away any responsibility of any man under the law as it existed, independently of this section, but they were only giving a right which a workman injured might avail himself of, of going against another person where he believed it to be necessary. If he did, the same considerations would come in, with the exception that the "undertaker," or whatever he might be ultimately called, might be made liable to the action in addition to the other party. Then he came to the suggestion of the hon. Member for Hull, who said there were now to be two lawsuits. There would not be two, but only one. The contractor sued, whether he were the immediate employer or the principal employer, would be responsible. They had thought it far 796 better not to alter the law, except it were absolutely necessary, for any alteration might lead in time to difficulties which no one had foreseen.
§ SIR H. JAMES (Bury, Lancashire)
could assure the Government there was no desire to criticise the principle of the clause in any hostile spirit. It was no use going back on what had occurred in the past, but they must make the best of the position. He thought hon. Members would desire to see how they could frame a clause which would be just to all the interests concerned. Of course, the clause as framed pressed most heavily upon the persons who were the principal contractors. He did not see much hardship in extending the clause in the way intended. Directly they abolished the doctrine of common employment and made the principal contractor liable for his workmen it did not add much to that responsibility to make him liable to the sub-contractor; therefore, the employer would not suffer very greatly by the extension of the liability, but he ought to be protected by having a claim against the sub-contractor. He was very much afraid the clause as drawn did not afford that protection, and for this reason: In the first instance, the action would be brought by the workman against the principal employer, whom he would select to be defendant on account of his being more solvent, but the principal employer might know nothing whatever of the circumstances of the case. Ho might not be liable for personal injuries, but he would be made liable by this section, although ho might know nothing of what occurred. The workman would recover from the principal contractor, and the principal contractor would proceed against the sub-contractor. The sub-contractor would then appear for the first time. He would say, "There was no negligence: I will tell yon my story," and he would defeat the principal contractor, who would have no remedy. This was not an object that could not be overcome, and what they ought to do was to allow the action against the contractor and the sub-contractor to be tried at the same time. Let them bring them both on the scene; then the sub-contractor would be bound to tell the whole truth, because he would be liable if he did not. The clause, by simply giving an abstract jurisdiction, did not carry out 797 that desire. The second sub-section of the clause would have to be remodelled so that the Court would have the power to call third persons on the record and try the whole of the action at the same time. He did not think that was an insuperable object. It was one which the Law Officers of the Crown would be able to surmount, and if not he should be happy to aid them in finding the necessary words. He would pass on to other matters. He was certain that there was no Member of that House who was following this discussion who did not feel it his positive duty to frame the clause in such a manner as not to give rise to legal doubt and so create litigation. He did not know any class of men who ought more to be protected by them from expenses of this sort than the workman with his little means on the one hand, and the employer, who might have grievous and extended liability thrown upon him by the Act, and who could not bear the liability of spending large sums upon legal costs, on the other. Of course, if these costs had to be incurred by carrying doubtful points as to the construction of the clause from one Court to another, all that went to the workman would be eaten and consumed by the extra cost of that litigation. Therefore, he asked that they should do something more than leave these matters in doubt, and it would be better not to put this clause in at all, and leave it to some future occasion to deal with, rather than put in a clause which should be full of points giving rise to questions of doubtful matter which no one could construe. This law would have to be considered by many County Court Judges and many lawyers, but the first persons who ought to be able to understand it were men of common sense. He would ask this—in no sense in hostile criticism of the Government, because he knew the difficulty they had to contend with—did they understand this clause as men of business? Were they able to construe it? Let him draw one or two matters to the attention of this House. The first question they had to determine in this clause was to whom it should apply. His hon. Friend said that it was to apply only to contractors—the principal contractors. Then do let it be understood how they were apportioning the liability which would be 798 created by this clause. County Councils were now constantly making contracts to persons to execute work. They would not be liable. Municipal Corporations, Hoards of Guardians, and all Public Bodies were making contracts for different portions of their work. None of these persons would be liable. They were all shut out. They ought not to leave in the word "undertaken," because it was doubtful. Then as to the words—Any work within the scope of his trade or business,he would point out there would be no scope of trade or business of a County Council. Let him put another case. There were a class of men who bought land, and who chose to erect houses upon that land for speculation; that was not their trade or business. They were simply speculative individuals who obtained money from ground rents or the rents of houses. They went to a man whom they got to dig out the foundations, and then to a builder and contractor, and made different contracts with these people. Who was liable? The man who was building the house for profit would not be liable. They were shutting out all these classes. If the clause was to apply to contracts, the word "undertaken" ought to go. He thought they could solve the difficulty by first letting the Government say what they meant. If they meant only matters in relation to a contract, let them put in words to the effect that such persons as were engaged in the particular business were liable. If they put in the word "contract," he thought that no litigation would arise on the part of the clause. Certain of the matters were technical; and when they came to the words "occupation of or control over the premises," he rather accepted the view of the Solicitor General, although he could not accept the whole of his argument. For instance, if a man was engaged in laying down a gas-pipe where wore the premises? Again, suppose a man was digging the foundations of a pier? There was no structure above ground, so where were the premises? Again, if it was a work of draining land, where would premises come in? It was clear that none of these matters would represent premises. At any rate, the point was one on which there would be an immense 799 difference of opinion, and it should be made clear what was actually meant. As to the words in the clause—"negligence in relation thereto"—that would only make the employer liable for any negligence committed in relation to work, and not in relation to the workmen. Of course, that was not the intention of the Government for a single moment. There was a great deal to ho said, point after point, on this clause. He supposed they had better read the clause a second time. They should be hurried, no doubt, in framing Amendments, and the clause, he was afraid, would leave the House in a very unsatisfactory shape, so far as concerned the interests of those in whose behalf it was framed. He thought the best they could do was not to throw unnecessary obstacles in the way of the Government, but to try their utmost to see whether, by consideration and discussion, they could not out of this clause produce something that might carry out the intentions of the Government.
§ THE SECRETARY OF STATE FOR THE HOME DEPARTMENT (Mr. ASQUITH,) Fife, E.
said, it was with a sense of relief that he had listened to the remarks of his right hon. and learned Friend. If the most serious objections against the language of the clause as framed were those he had stated to the House, he did not think it ought to take long to pass the clause in a thoroughly satisfactory state. In the first place, the right hon. Gentleman said that they ought to have provided for the action, under the new state of things, being taken against the principal and the subcontractor.
§ SIR H. JAMES
explained that what he suggested was that when the action was taken against the principal, the action of the latter against the subcontractor should be taken at the same time.
§ MR. ASQUITH
said, they had provided for that in the clause as it stood. They might take two possible cases. Where a workman was injured, he ventured to say that in 99 cases out of 100 he sued the sub-contractor, and never went against the principal contractor unless he doubted the solvency of the person against whom his action Jay. In the case where he sued the principal contractor, it was perfectly true that the principal contractor would not himself, 800 as a rule, have knowledge of the facts. What would be the first step he would take? He would write to the sub-contractor, and say to him, "Your workman A is sueing me for negligence committed. I intend to bring you in as a third party to the action. If you are brought in you will be bound by the result of the action, and I can, in subsequent proceedings, obtain an indemnity from you without the trouble of proving the facts over again." Therefore, it would be to the interest of the sub-contractor at once, if he was going to be drawn into this litigation as a third party, to place himself at the disposal of the defendants, and do everything in his power to see that the truth was arrived at, he being the defendant in the last resort. He thought, therefore, that was an unsubstantial object. He came to the criticism passed upon the wording of the clause. First of all, the right hon. and learned Gentleman had taken exception to the word "undertaken." As the Solicitor General had intimated, the Government was quite prepared lo reconsider the word and use the word "contract," although he thought the meaning of the clause as it stood was clear. The Government did not intend the clause to apply to a man who had gone to another and asked him to build a house for him. That man was a layman and not an expert, and could have no control over the execution of the work ordered, and therefore it would be repugnant both to justice and common sense that he should be liable for the misfeasances or negligence of those employed in the work. The clause was intended to apply to a case where a person, himself exercising some trade or business, had entered into a contract in the course of that business with another,, and where he had then delegated a portion of the work which he himself had contracted to do to a third person, being a sub-contractor.
§ MR. STOREY (Sunderland)
said, he would put the case of a shipbuilder who contracted to build a ship. He might sub-contract a great deal of the work, but ho would be liable under the Bill because he had contracted to do the work. But a dull time might come when the ship builder would put two or three ships on the stocks in the hope of selling them another day. He would contract with 801 nobody, and if the term "contract" were used in the clause ho would not be liable.
§ MR. ASQUITH
quite agreed with the hon. Member that the clause, in its narrow construction, would not hit such a case as he had put, but those were cases of very rare occurrence.
§ MR. STOREY
Oh, no; it is a common case in shipbuilding, and shipbuilding is one of the largest and most dangerous trades in this country. It also applies to mines, engine building, marine engine building, and other dangerous trades, accidents in which are common and which this Bill was to meet.
§ MR. ASQUITH
would take that statement of fact from the hon. Member, but he would suggest to him that if they used a wider word they would find almost insuperable difficulties in the matter, and it would hit the widest class of cases which neither he nor the hon. Member wished to hit. He was quite prepared, when they came to the exact language of the clause, to meet the particular case of the shipbuilder to which the hon. Member had referred. With regard lo the wording of the clause, he did not agree that "premises" implied buildings or structures, but he had no objection to making the clause read "place or buildings, "as well as "premises." As to the last point of the right hon. and learned Member for Bury as to the words "in relation thereto," there, again, if they had negligence causing injury to the workman and arising in the course of the work, it would be negligence in relation to the workman. That was a question about which there could not be any doubt. He hoped the House would agree to read the clause a second time.
§ Motion agreed to.
§ Clause read a second time.
§ MR. STOREY
then moved to substitute for the phrase, "has undertaken to execute, "the words "in the execution of."
§ MR. ASQUITH
said, the Government would accept the Amendment. He thought it was sufficiently limited by the words "within the scope of his trade or business" not to cover the case which he had put, while it got rid of the difficulty which the hon. Member had raised.
§ Amendment agreed to.802
§ MR. ASQUITH
said, the right hon. and learned Member for Bury had some doubt as to the meaning of the word "premises," which he himself did not share; but, in order to meet the point raised by the right hon. Gentleman, he was prepared to move, after the word "premises," the words "or place."
§ SIR J. GOLDSMID (St. Pancras, S.)
observed that he had an Amendment to move before this. They had just inserted the words "in the execution of," and in lines 2 and 3 they had the words "for the purpose of executing such work." The first words were sufficient; the second were merely tautological, and he therefore moved to omit the words "for the purpose of executing such work."
§ Amendment proposed, in line 2, to leave out the words "and for the purpose of executing such work."—(Sir J. Goldsmid.)
§ Question proposed, "That the words proposed lo ho left out stand part of the Clause."
§ Question put, and agreed to.
§ MR. ASQUITH moved, after the word "premises," to insert the words "or place."
§ MR. TOMLINSON (Preston)
was understood to say some definition on the question of "place" was required.
§ Amendment agreed to.
§ * MR. MATTHEWS
proposed, in line 4, after the word "done," to insert the words "and control over the execution of such work." He thought the necessity for this addition would be apparent, and he trusted the Amendment would meet with approval.
In line 4, after the word "done," to insert the words "and control over the execution of such work."—(Mr. Matthews.)
§ Question proposed, "That those words be there inserted."
§ * SIR C. RUSSELL
said, the Government could not accept the Amendment. They could not say what was part of the execution of the work; but if they put this into the clause, they would be doing what the law at present did, and would not be adding to the force of the law as it stood.
§ Question put, and negatived.
§ SIR H. JAMES moved, in line 5, before the word "negligence," to leave out the word "the," in order to insert the word "any." He thought the Government would have no objection to that, as the word he proposed would strengthen the force of the clause.
In line 5, before the word "negligence," to leave out the word "the," in order to insert the word "any."—(Sir H. James.)
§ Question proposed, "That the word 'the' stand part of the Clause."
§ SIR H. JAMES
said, he would ask the Attorney General whether if this word were not inserted, or some word like it, negligence in relation to work would be covered?
§ SIR C. RUSSELL
said, his right hon. and learned Friend would see that the liability was in relation to the workman for the work he was doing, and there would be no cause of action—of course, unless injury had been done to him.
§ Amendment, by leave, withdrawn.
§ MR. CARSON (Dublin University)
said, he would like to know how the matter stood as regarded the employer's liability in the County Court, so that provision might be made against two actions? For the purpose of raising the question he moved, in line 9, after the word "indemnity," to insert the words "to the extent to which he has been held liable." Everybody was agreed 804 that there should be only one action, that, as to indemnity, in the words of the section—Any person liable under the section shall be entitled to indemnity against any other person who would have been liable independently of this section.There should be some course of procedure as to binding the sub-contractor.
In line 9, after the word "indemnity," to insert the words "to the extent to which he has been held liable."—(Mr. Carson.)
§ Question proposed, "That those words be there inserted."
§ SIR C. RUSSELL
said, there was power in the County Court to bring in third persons, but, if any doubt existed, it was covered by the clause, which said that—Any Court having jurisdiction to determine any question of liability under this section shall also have jurisdiction to give effect to this indemnity.When the first employer was sued he gave notice to the contractor under him, telling him that he knew nothing of the facts of the case, and that if he was liable the other was liable to recoup him, and then the Court could determine the question of liability once for all. As regarded indemnity, an indemnity was an indemnity, and would be interpreted accordingly. They would see the moaning by reference to the 2nd sub-section.
§ * MR. MATTHEWS
said, if the Attorney General was right in the view expressed to the House, the sub-section was necessary to give a remedy against the sub-contractor at all.
§ MR. ATHERLEY-JONES
said, there was no such procedure in the County Court. He would suggest that it would be well that a clause should, later on, be put into the Bill to provide machinery for bringing third parties into any proceedings that might be taken. There would be ample opportunity for doing so.
§ MR. ASQUITH
said, he trusted the House would agree with the suggestion of his hon. Friend. His own impression was that no such provision would be found necessary; but he would consider later on whether any such clause was really required, and, if so, he would 805 see what could be done in regard to this question of procedure.
§ Amendment, by leave, withdrawn.
§ *SIR C. W. DILKE (Gloucester, Forest of Dean) moved, in line 10, to leave out the words "would have been," and insert the word "is." He moved this for the purpose of seeing how they stood. It seemed to him that the law in other portions of the Bill was weakened by the sub-section as it stood.
In line 10, to leave out the words "would have been," and insert the word "is."—(Sir C. W. Dilke.)
§ Question proposed, "That the words 'would have been' stand part of the Clause."
§ SIR C. RUSSELL
said, they did not propose to take away any remedy that now existed. They could not accept the Amendment.
§ Amendment, by leave, withdrawn.
§ MR. TOMLINSON (Preston) moved, in line 12, after the word "jurisdiction," to insert the words "in the same action." He said it was clearly intended that there should not be any second action, and he did not see any harm in expressing that intention.
In line 12, after the word "jurisdiction," to insert the words "in the same action."—(Mr. Tomlinson.)
§ Question proposed, "That those words be there inserted."
§ MR. ASQUITH
said, he would ask that this question be reserved in connection with the form of procedure.
§ Amendment, by leave, withdrawn.
§ MR. BARTLEY (Islington, N.)
said, he thought ho should say a few words as to the manner in which this clause had been treated. They could see what that had been by the fact the right hon. Gentleman had said that he would undertake another clause to explain it. [Cries of" No!"] The right hon. Gentleman had just said so. [Renewed cries of "No!"] Yes; he had distinctly stated that he considered another clause was 806 necessary to explain this one; and the right hon. Baronet (Sir C. Dilke) said he did not know how they stood under the present clause. It all came to this— whether the Government had not had time to attend to this matter dealt with in the clause? Members had not had time. He was a Member of the Standing Committee, but he had not time to attend to it. It was quite impossible for Members who had to be in the House while the Committee was sitting to attend to the Committee and to other Committees tit the same time. He thought the Government should not have allowed this important provision—one of the most difficult and complicated in the Bill—to be ignored until the Bill had been read a second time, and had reached the Report stage. It was hardly the way to deal with the question, that they should have to amend the clause in a way that hardly made it English. In his opinion, a most important question had been most disgracefully scamped, and the fact reflected very little credit on the Government's consideration of a part of the Bill which was of great importance. They might have taken some trouble in connection with a matter relating so closely to the sub-contractor.
§ MR. STUART WORTLEY (Sheffield, Hallam)
said, the Government, as he understood, were willing to introduce a satisfactory clause, after what happened in the Standing Committee; but they lay low, awaiting the suggestions of friends. Although five months had elapsed they had not taken action, and they seemed to think it unreasonable for others to produce their Amendments in 24 hours. The clause seemed to him to make those liable whom there were no means of controlling, adding thereby an unnecessary and irksome liability.
§ MR. TOMLINSON
said, there was some doubt existing as to the exact wording of the clause as now amended, and he would suggest that the Government should tell them, especially as they found it would be necessary to deal with certain subjects on another clause, whether they could not have the clause printed to-night along with the Votes for distribution to-morrow? It might be necessary to bring up another clause, and they should have the text of this one before them without delay.
§ Clause, as amended, added.
§ Page 2, after Clause 4, insert the following Clause:—
§ (Power to bring person causing injury before the Court.)
§ "In case any employer shall be sued by any workman for injury caused either partially or entirely by the negligence of any person in the service of the workman's employer, then the employer shall be at liberty to bring before the Court, in which he is so sued, such person for the purpose of having the question in litigation determined in his presence, and so as to bind him, and the employer shall, upon satisfying the plaintiff's claim, have the same remedy against the said person as the plaintiff would have had if he had sued such person instead of the employer."
§ He thought it would not he proper for him to move this clause for the present. It might have some bearing on the matters left over on the clause just passed, and he thought it would be better for him to pass to the next clause.
§ Clause, by leave, withdrawn.
§ (Notice before action for compensation.)
§ "(1) Subject to the provisions of this section, an action for compensation under this Act for an injury sustained by a workman in the course of Ms employment shall not be maintainable against the employer of the workman unless notice that injury has been sustained is given within three months from the occurrence of the accident causing the injury.
§ (2) The notice 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, on one of the employers.
§ (3) If the employer is an individual, the notice may be served,—
- (a) By delivering the notice to the employer: or
- (b) By leaving the notice at the employer's usual or last known place of residence or place of business.
- (c) By forwarding the notice by post by a registered letter addressed to the employer at his usual or last known place of residence or place of business
§ (4) If the employer is a body of persons, corporate or unincorporate, the notice may be served by delivering it at or by sending it by post in a registered letter addressed to the office; or if there is more than one office, any one of the offices of that body.808
§ (5) If the notice is served by post it shall be deemed to have been served at the time when the letter containing it would be delivered in the ordinary course of post; and, in proving the service, it shall be sufficient to prove that the notice was properly addressed and registered.
§ (6) The want or insufficiency of the notice required by this section shall not be a bar to the maintenance of an action for the recovery of compensation for the injury if the Court or, in case of appeal, the Court hearing the appeal is of opinion that there was reasonable excuse for the want or insufficiency, and that the defendant has not been thereby prejudiced in the defence."
§ He did not know whether any explanation had been given of the attitude of the Government towards this question—whether they regarded it as one of secondary importance. Under the present Act any person desiring to take proceedings under the Act was required to give notice of the intention within a limited time. This limited time was six weeks. This subject of the limited time was considered a good deal by the Select Committee in 1886. Some suggested that the subject should be left open altogether; but that was not the opinion of the entire Committee, many of whom would have been satisfied with an extension of time. He would like to know what was the exact view of the Government in reference to this question. It would certainly seem, so far as those who might be rendered liable were concerned, that they should be entitled to know that an accident had happened which might give rise to or be the cause of an action. It might be said that that was not necessary; but he was told there were many cases in which the employer might know nothing at all of an accident having happened, and that frequently in the building trade an injury occurred to a man about which the employer knew nothing at all. Surely it was not too much to say that where an action was likely to be taken notice should be given in someway. As the Bill now stood, anyone who was injured could bring an action without giving any intimation to the employer. Those on whom the obligation would be of giving notice should have it put before them in the Bill that it was their duty to give it. If it was desirable under the old Act that notice of action should be given, it was still more necessary in the present Act. A new class of accidents would be created by the measure, and 809 persons might be induced to delay instituting proceedings in doubtful cases by the hope that if a considerable interval elapsed it would be difficult to produce evidence to rebut their claims. He believed it would be found necessary before the Bill passed that some provision should be inserted enabling employers to claim indemnity or take proceedings against workmen in certain cases, and obviously it was only fair that the men should have notice that action was to be brought against them. What inducement would there be to one workman to exercise care in reference to other workmen if he knew that under no circumstances could he incur liability, but that whatever liability there might be would have to be borne by the employer?
§ Clause (Notice before action for compensation,)—(Mr. Tomlinson)—brought up, and read the first time.
§ Motion made, and Question proposed, "That the Clause; be read a second time."
* SIR; A. ROLLIT (Islington, S.)
said, he hoped the clause would not be assented to. He did not doubt that there were some exceptional cases in which injury might be inflicted on an employer through want of notice, especially in relation to preparing his case and obtaining contemporaneously the necessary evidence; but, on the other hand, let the House consider what evil was occasioned by requiring notice, which was itself exceptional, under the existing Statute. He should be loth to make any general charge against employers, for ho believed that, on the whole, they recognised the wisdom of dealing justly, considerately, and even generously with their employés; but there had been cases in which injured men had for the six weeks been benevolently treated and after that period the benevolence had suddenly ceased, and harder treatment than would ordinarily have been expected had been meted out to the injured men. This course of action had, in many cases, produced serious friction, which had been most disadvantageous to the relations of the employer and employed. Much had been said about the litigation which had taken place under the Employers' Liability Act, but a great deal of that had arisen in connection with the require- 810 ment of notice, and the present proposal would exaggerate that. Difficulties would, as in the past, arise in the construction of the clause—as to whether the notice had been sufficient in all its requirements. The notice was not now necessary in case of death, where the damages were presumably the largest; but the answer to the proposed clause was that the absence of notice was always taken into account by a jury. It was the interest of the plaintiff to give notice, and if he neglected to do so his adversary always commented upon the fact, which operated to the plaintiff's disadvantage. That, he thought, was a sufficient check. He trusted that one of the worst features of the existing law, and one which bad caused the most litigation and the most adverse comment, would not be repeated in the new Statute.
§ * MR. LAWRENCE (Liverpool, Abercromby)
said, the Bill dealt with the case of the shipowner. Well, the cases of the shipowner and the employer of labour on land were so different that notice was necessary in the case of the former. A ship might be in a distant port when an accident occurred to a sailor, and the man might be going round the world. The owner could have no possible knowledge of the accident; and yet the person injured might turn up at some remote time and sue the owner in an English Court. Having regard to the importance and difficulty of collecting evidence—whether on the part of the shipowner or the, sailor—in connection with accidents which might have occurred a year before it was possible to bring the action to meet the equity of the case, there should be a fair and moderate notice required if compensation was to be claimed. If the clause was read a second time ho should like to move an Amendment to the effect that notice should be given either to the captain, or Her Majesty's Consul, or other representative, as soon after the accident as possible, so that the owner might have an opportunity of knowing, within reasonable time, what case he would have to meet, and give him a chance of collecting evidence. It was only fair to the seafaring man himself and his employer that this should be done.
§ MR. ASQUITH
said, the Government certainly could not accept the clause. Experience had shown that there was no provision in the Act of 1880 which had worked more hardship than this requirement to give notice. The Common Law required no such notice where the injury was sustained by a third person, and he did not see, and had never been able to see, why any difference should be made between the two cases. It had been pointed out by the Member for South Islington that there had been more litigation—more vexatious litigation—on the subject of the sufficiency of notice than perhaps any other topic within the range of the Employers' Liability Act. In reply to the hon. Member for Liverpool, he should reserve to himself liberty to deal specially, at a later stage, with the case of seamen, a matter which stood on a footing of its own. He took it that by rejecting the present clause the House would not be precluded from dealing with the special case of seamen. While he did not pledge himself to accept the proposal on the Paper, yet he thought that the subject was one which might be favourably considered.
§ MR. CARSON (Dublin University)
said that, as the right hon. Gentleman had pointed out, the case of seamen differed from all other cases and deserved special consideration. He did not wish to speak in favour of the clause before the House, because he agreed that there had been no more fruitful cause of litigation under the Act than the requirement of notice in cases of injury from negligence; but he thought the clause which had just been added to the Bill created one case in which notice ought to be given—that in which the principal contractor was going to be held liable for the negligence of the sub-contractor. In that case the principal contractor might know nothing whatever about the accident, This, he thought, would suggest itself to the House as being an exactly analogous case to that of the seamen. The principal contractor might have no knowledge of the accident and little means of getting evidence. Notice should be given to him at the earliest possible moment. It might be said that the contractor would always have the sub-contractor to assist him in obtaining evidence; but the subcontractor might be a man of straw and 812 unable to render assistance. There was another reason why a notice should be given in these cases. The sub-contractor was to be obliged to indemnify the principal contractor; therefore the latter should be able to bring the litigation in the first instance to an end as soon as possible in order that he might recover from the sub-contractor. If no notice were necessary the commencement of an action might be delayed until the means of obtaining evidence had gone, and, possibly, the sub-contractor had gone also.
§ MR. J. HAVELOCK WILSON
said, ho did not think, after all, that there would be such great hardship on the part of the shipowner as on the part of the sailor. The shipowner could always depend upon having his evidence, because, as a rule, when the ship arrived in port, though the crew and firemen might be discharged, the officers were very nearly always retained. So that the owner always had evidence at hand which the sailor had not. He knew the case of a seaman who had been wrecked and was picked up out of a boat in which several of the men had died from exposure. This man had entirely lost his memory, and he could not now tell the name of the ship in which he had been wrecked. It was possible to find many men in hospitals abroad who had no knowledge of the Employers' Liability Act, and had no opportunity of giving legal evidence. If, therefore, it were necessary to give notice within a certain period it might be impossible for these men to recover compensation for injuries. If notice were to be required the limit of time should be 12 months or 18 mouths.
§ SIR H. JAMES
said, they were not now discussing the special case of seamen. He hoped the Government would not encourage the giving of these notices. They had been found to work injustice, and were obsolete. The working man did not give notice, but a gentleman came to him and drew it up. Directly it was sent in litigation was instituted, and the good feeling which should exist between employer and employed and all chance of arriving at an amicable settlement were gone.
* MR. GIBSON BOWLES
thought the shipowner was entitled to special consideration. He did not agree with the Member for Middlesbrough that all the 813 actions would be brought by the seamen. Accidents were likely to be brought by the officers, and the owner in that case would require the evidence of the men, who mostly disappeared at the end of a voyage. He should be glad if the Home Secretary could find means to enable owners under such circumstances to trace the men. They should have notice of action before the crew dispersed.
§ MR. CAYZER (Barrow-in-Furness)
hoped the Home Secretary would adhere to his promise to consider the case of seamen and shipowners later on.
§ Motion and Clause, by leave, withdrawn.
§ (Limit of time for commencing action.)
§ "An action against an employer for compensation under this Act for an injury to a workman occurring in the course of his employment shall not be maintainable unless commenced within six months of the occurrence of the accident causing the injury, or in case of death, within 12 months from the time of death."
§ He was not certain whether, under the Common Law, there was any limit of time. It would be desirable to adopt a limit, although he was not sure as to what the period should be.
§ Clause (Limit of time for commencing action,)—(Mr. Tomlinson,)—brought up, and read the first time.
§ Motion made, and Question proposed, "That the Clause be read a second time."
said, that all the arguments used against the last clause applied with equal force to this. They wished to abolish all special proceedings in these cases, and assimilate them to ordinary actions at Common Law.
§ MR. STUART-WORTLEY (Sheffield, Hallam)
said, that in justification of the clause, he would point out that the Bill would put a workman in a better position than a stranger.
§ Question put, and negatived.
§ (Employer not liable for personal injuries sustained on British ships in Foreign ports.)
§ "In the case of a workman employed on board a British ship who shall sustain any personal injury elsewhere than in a port of the 814 United Kingdom, the employer shall not be liable under this Act to pay compensation for the injury, unless it is caused by a defect in the condition of the ship, or of the tackle, furniture, apparel, machinery, or other equipments of the ship, existing at the time when the ship last proceeded to sea from a port of the United Kingdom, and the defect or the failure to discover or remedy the defect arose from the negligence of the employer, or of some person entrusted by him with the duty of seeing that the condition of the ship or of the tackle, furniture, apparel, machinery, or other equipments thereof is safe and proper."
§ He said: I noticed the remarks of the Home Secretary. He recognises that there is a difference between the case of seamen and other cases. The object of the clause I now propose is to exempt the shipowner from liability for injuries caused to any of the crew at sea. I propose to leave him liable for negligence in any of those conditions which I admit it is the shipowner's duty to attend to. It is his business to see that his ship is seaworthy and properly equipped. It is his duty to see that the crew are sufficiently numerous, and that the persons he employs are competent and acquainted with their business, and that they discharge it in a satisfactory manner. If the shipowner neglects any one of these things I do not propose to exempt hint front liability. I do not seek to restrict the liability of the shipowner in matters which it is his duty to attend to. But I would not hold him liable for personal acts of neglect by members of the crew of a vessel at sea, and out of the control of the shipowner. I do not want to labour the case, but I do submit that there is a substantial distinction between the case of a ship at sea and a work carried on by an employer on land. There is the absence of all possible control, which is the root of all liability under the Act. You say to an employer of labour on shore—"It is your duty to look after your men, no matter of what grade they may be. If anyone turns out a negligent or incompetent person it is your business to dismiss that man and till his place with someone who can do the work properly." I do not impose that liability on a shipowner, because it is impossible to perform it. A man may have come to a shipowner with an excellent character, and be engaged as a fairly competent and efficient person, and yet in the course of the voyage, when the vessel is entirely out 815 of the owner's control, he may become intemperate or exhibit negligence which showed he was not fit to be intrusted with the particular duty for which he was engaged. The shipowner could not change the man when the ship is at sea and on the voyage, and there is therefore a special hardship in making him liable for the negligence of a man whom he cannot control, and whoso developed negligence he has no notice or knowledge of. When the ship is in port, and when he can dismiss or change his employé, I leave the owner liable like any other employer of labour. Another reason I may urge on behalf of my Amendment is that the shipowner has already imposed on him exceptional liabilities, which hitherto have been taken as satisfying that which the law can fairly expect from a reasonable and humane owner. I refer to the liabilities and restrictions under the Merchant Shipping Act. The Act imposes on shipowners a variety of liabilities from which employers on laud are free. If an accident or illness befalls a seaman at sea, the shipowner is responsible for medical and surgical aid, he must bring the man home, and in the case of the man's death defray the funeral expenses. The owner is also responsible for the ship being sound and seaworthy and properly officered, though he is not free in the choice of his agents, for he must choose as officers persons who have the Board of Trade certificate, which many think is an extremely imperfect testimony of the value of an officer. Then the dangers of navigation and the perils of the sea are exceptional. Errors of judgment, in consequence of these dangers, are extremely likely to occur, and these errors of judgment are also likely to be treated as negligence in actions in consequence of these perils of the sea. Take the case of a collision at sea. In the case of collision at sea, under this Bill it will be the interest of everybody on board, contrary to the case of collision between two vehicles on land, to say the fault was on the side of their own vessel, in order that they may have their remedy against the owner of their own ship. Consequently, the liability of that ship to the ship run down will be established. The Legislature hitherto has felt so strongly that some sort of limit was necessary in the case of collision that, as the House 816 knows, the damage that can be recovered against a shipowner by a ship with which his own has been in collision, even where the collision was due to the negligence of his own crew, is limited to £15 a ton. But you are proposing to create by this Bill au unlimited liability to the members of the ship which is in fault. That is not carrying out that rule of equality between stranger and servant on which the Home Secretary laid stress. I would also draw attention to the fact that shipowners, by the law as it stands, are allowed to exempt themselves from liability to strangers for the negligence of their servants at sea, and on all the great lines now a clause is universally in use by which the owner is made exempt from all liability to strangers on account of the negligence of the crew, or captain, or any officer of the ship. America was the only exception. The clause was held in that country to be contrary to public policy; but by a recent Act the American law has followed that which has become the ordinary practice of all great commercial lines of this country. I contend that that furnishes a strong ground in support of the clause I now submit. I wish to touch on the effect this Act will have on the employment of foreign seamen. There is, know, a strong impression among many shipowners that it will be to their advantage to employ foreign seamen, because they are less likely to avail themselves of this Act, since they do not belong to the sailors' organisations and are not familiar with our attorneys, language, and laws. Looking at the numbers of persons employed in our Mercantile Marine I find that the number of foreigners so employed has risen from 4 per cent, in 1853 to 16 per cent, to-day. The clause, I submit further, simply embodies the recommendation of the Committee which so carefully inquired into this subject in 1886. The hon. Member for Middles brough was examined before that Committee. He did not go the full length of my clause, but he expressed the view that shipowners ought to be responsible for the negligence of persons in command of the ship at sea, but that, shipowners should not be responsible for the negligence of any other member of the crew. I would point out again, in conclusion, that by my clause the shipowner, when his 817 ship is in port, will be placed exactly in the same position as any other employer, but ho will be exempt from liability for the negligence of any of his servants whereby another servant is injured during a voyage at sea amongst all the perils and dangers to which the crew are necessarily exposed. I put forward this clause by desire of those who represent the largest shipping interest in the country. I hope the House will read the clause a second time, subject to any modification which may be necessary.
§ Clause (Employer not liable for personal injuries sustained on British ships beyond the United Kingdom,)—(Mr. Matthews)—brought up, and read the first time.
§ Motion made, and Question proposed, "That the Clause be read a second time."
§ MR. J. HAVELOCK WILSON (Middlesbrough)
said, he desired the indulgence of the House while he put forward the claim of the sailor to have the same protection as was afforded to the workman on shore. He had expected the right hon. Gentleman to have presented a much stronger case; but the shipowner's claim to be exempt from liability was a very weak one; in fact, he was no more entitled to be exempt from the Act than any employer on shore. The right hon. Gentleman had said it was unfair, after the shipowner had seen that the ship was seaworthy and had provided efficient officers and crew, to hold him responsible for any accident that might occur when the ship was thousands of miles away from him at sea. The responsibility of the shipowner was precisely the same as that of the mineowner, who might be thousands of miles away from his mine when an accident happened. There was, in fact, no difference between the two cases, and the argument that the shipowner ought to be exempt from liability because the vessel was entirely beyond his control ought not to carry weight with the House. But there wore stronger reasons against the clause. A workman on shore might refuse to carry out an order which he considered dangerous to life or limb—for instance, a mason or carpenter could refuse to go up a scaffolding he thought defective, 818 the only risk being that ho might be discharged; but if a seaman refused to carry out an instruction of the master or an officer of a ship he rendered himself liable to imprisonment. A fireman or seaman signed a, contract to servo at sea under an exceptional code of laws. He must at all times be obedient to the lawful commands of the master or officers of the ship, he must have no judgment of his own, and he cannot say to the officer, "I believe it to be dangerous to do that work, and I won't do it," for ho is liable to 12 weeks' imprisonment for refusing duty. He knew a case where a man was ordered to paint the funnel of a steamer. The man objected to the planks which were put up on the ground that they were not safe, but the mate said he was officer of the ship and he would have to do as he was told. The man obeyed, and be had not been long on the scaffold when one of the planks broke, and he fell and broke his spine and injured his leg. He was now in the Cardiff Hospital, and he had not been able to get one penny of compensation from the owners of the vessel because the Employers' Liability Act did not apply to seamen. He knew another case in which three men were ordered aloft to spread the gaff of the vessel. It was in it storm, and the men refused because they thought it was dangerous to their lives. The captain entered the refusal of duty in the official log. He then sent the apprentice to do the work, and the apprentice did do it, though at a risk to his life. At the end of the voyage the men were arrested; they were brought before a shipowners' Magistrate at Newcastle, and sentenced to 14 days' imprisonment without the option of a fine. He might give many similar cases, in which seamen after being injured at sea had been unable to obtain compensation, and in which seamen for exercising the right of protecting their lives had been sent to prison for refusal of duty. It had been said that shipowners were compelled to provide comforts for their employés which other workmen did not get, and they were told that the shipowner was by law compelled to pay the funeral expenses in the case of a seaman who died on board ship. Did the ex-Home Secretary in making that statement suppose that there was an undertaker with all the paraphernalia of funerals on 819 board ship? He knew what a seaman's or a fireman's funeral was like. The body was sewn into a piece of canvas; an iron bar was placed at the feet, and then thrown overboard. The funeral the seaman received did not cost the shipowner more than 2s.; and, as for surgical comforts, where was the surgeon on board the tramp steamer or the sailing vessel? It might be said that the captains were capable of giving surgical aid, but there was not one captain in 1,000 who could set a limb or dress a wound of a man on board ship. At the present time he knew of seven men who had been permanently injured because there was no one on board ship able to attend to injuries they received, and not one of those men had been able to get compensation. It was not right on the part of the shipowners to come to the House and say that they provided surgical skill and medical comforts. They did nothing of the kind. It was true that the Merchant Shipping Act required that, when a man received an injury, the shipowner should put him in a hospital and bear the hospital expenses until such time as the man reached the United Kingdom. Within the past 12 months no fewer than 30 cases had been brought under his notice in which men who had been injured had been put ashore and sent to hospital, and then after an interval of three or four weeks sent home to the United Kingdom and lauded there as cripples, the object of thus moving them being to relieve the shipowners of liability for their maintenance. Under the law as it now stood, that liability ceased directly a man was landed in this country. A few weeks ago, at Liverpool, he saw landed a man who had had both of his legs broken. That man belonged to Glasgow. He had not a penny of his own, and, consequently, the Poor Law Authorities were compelled to send him home at the cost of the ratepayers. It was suggested on the part of the shipowners that they had very little control over their servants, but he maintained that they had exceptional powers under the Merchant Shipping Act, and that, in fact, they had greater powers than any other employers of labour. Why, then, should they escape that liability to which employers ashore were subject? They were told also that drunken captains might cause serious injury to men on 820 board ship, and that it would not be right to hold owners responsible in case of such injury? But who employed the captain? Had the seamen any voice in the selection of the officer who was to command them? No. The choice rested entirely with the shipowner himself. Again, if the captain died in the course of the voyage, and another captain was shipped abroad, the men had no voice; they might have been perfectly satisfied with the one they had signed to serve under, but they might have put in his place an incompetent man, and surely if through his incompetence they were injured it was a great hardship to deprive them of compensation. At the present time there were plenty of captains in the Mercantile Marine who had lost three or four ships, yet they continued to be employed by the same shipowners. That was a strange and remarkable state of affairs, and he believed that, if shipowners were liable to pay compensation in the case of their sailors losing their lives, they would be more careful and wary in the selection of their captains. They were told the shipowners were compelled, in the case of the illness of a seaman, to pay his wages; but it was a noteworthy fact that they never got extra assistance in the case of the illness of a sailor, whose work had to be done by his fellow-seamen, and consequently the owner lost nothing at all. Now the clause under discussion asked that no compensation should be paid to seamen for injuries sustained elsewhere than in a port in the United Kingdom, unless they were due to defective equipment, tackle, or rigging. He was certain that the late Home Secretary had no desire to inflict any hardship upon seamen, and he would therefore like to point out to him that the majority of seamen who arrived in the ports of the United Kingdom were discharged immediately upon the arrival of the vessel, and therefore did not need the protection of the Employers' Liability Bill while the ship was in port. It was different, of course, in the case of coasting steamers, the crews of which were in continual employment; but he ventured to say that to apply this proviso to seamen generally, and to refuse them compensation for injuries sustained in places other than those in the United Kingdom, would be to render the Act valueless so far as they were concerned. It was provided that 821 the shipowner must see that the equipment of his vessel was in proper condition before she proceeded to sea from any port of the United Kingdom. But how were the seamen to ascertain that that was done? How were they to know that the equipment, &c, of the ship was in proper order before the voyage commenced? The clause was absolutely useless, as he would show. The men signed articles in the shipping office, sometimes even before the vessel was in port. They seldom, if ever, saw her until after they had signed; they probably entered into agreement at midday, and had to sail at midnight. In the interval they had to get their clothes packed, and they had no time to pay a visit of inspection to the ship, and ho would like to know what treatment they would got at the hands of the officers if, when they went on board at midnight, they started, bull's-eyes in hand, to closely examine the rigging, &c, and to make a note of all defects, so as to be able to make good their claim to compensation in the event of an accident occurring. They would assuredly get a pretty warm time of it. Again, while abroad the sails and rigging might wear out; the captain on reporting it might be instructed to make shift with them until he got home again; an accident might be the result, and the men injured would be deprived of the right to compensation, for they would be met with the reply that the accident occurred outside the United Kingdom. There certainly was no class of men in this country more entitled to the protection of the Employers' Liability Act than our sailors and firemen. They were told three or four years ago by the right hon. Gentleman the Member for West Birmingham that of every 64 men engaged one man annually lost his life at sea; the proportion now was about one in 120, and, seeing that so many were either killed or drowned at sea, was it not reasonable to ask that they should have afforded them a means of protection which would certainly be the means of considerably reducing the loss. It might be asked would compulsory compensation reduce the loss? His reply was that it would, for if an owner found that a captain, through his neglect or incompetency, caused injuries to the crew, or loss of life, he would not engage that 822 captain for a second voyage on the ship. Then the late Home Secretary had contended that in the case of a collision at sea it would be to the interest of the men to show that their own ship was in the wrong, and he had suggested that they would enter into a conspiracy to prove that. Did he think that the sailors and firemen were such a bad lot that they would conspire to tell falsehoods like that?
§ * MR. H. MATTHEWS
I said nothing of the kind. I merely pointed out how difficult it was to arrive at the real facts in cases of collision, because each man's view of the accident was naturally warped.
§ MR. J. HAYELOCK WILSON
said, he was pleased to have that explanation. But he was bound to say that the remarks of the right hon. Gentleman conveyed, to his mind, the suggestion that the men would enter into a conspiracy to commit perjury, and he would ask—Why should they do it? What advantage or good could they possibly obtain by it? The captain would stand the chance of losing his certificate if it were proved that the loss of the vessel or the collision was due to his neglect, and the mate would be in a similar position; therefore, it would not be to their interest to show that their ship was in the wrong. They were told that sailors ought not to have the benefit of the Act, because their calling was a dangerous one; but surely for that very reason they ought to be entitled to additional protection. Reference had been made to the difficulty in securing evidence, but he did not think that that would much affect the shipowners, because the officers, upon whose version they would rely, usually sailed several voyages in the same ship, while the seamen seldom went a second voyage, unless in exceptionally good ships, which were not very plentiful. They were consequently quickly scattered all over the world, and the hardship would fall on the injured seamen, who would find great difficulty in tracing the comrades who could give evidence on his behalf. He had several eases of hardship he would like to lay before the House. A man named Jenkins was injured through a defective foot-rope on the homeward 823 voyage. He joined the ship at San Francisco, and if the clause of the right hon. Gentleman was passed, he would not be entitled to compensation because the accident happened outside the United Kingdom. How could that man be able to prove that the foot-rope was defective at the time when the ship left the United Kingdom? And if he did prove it that would not help him, because he joined the vessel abroad. In another case, through a defective hatchway on board a collier, a man fell 20 feet, breaking both his legs, and yet he got not a penny of compensation; neither would he have been able to recover under this clause, as at the time of the accident the ship was outside the United Kingdom.
§ MR. J. HAVELOCK WILSON
said, he ought to be able, but it was doubtful. He knew another case of a man at San Francisco who was ordered down into a hold without a lamp. This man went down into the lower hold and fell some 22 feet, putting out his hip and breaking his leg. In this condition ho was kept on board for nine mouths, and last week went into Cardiff Workhouse Hospital, probably a cripple for life. Ho was now only about 37 or 38 years of age. Would he be able to recover compensation under this Act? It was true that the accident was not attributable to defective equipment, but, on the other hand, the sailor was acting under the instructions of a superior officer, whom he dared not disobey. The fact was, a seaman was not allowed to think for himself; he had only to obey; and if the Bill passed in its present form, he would not be able to get compensation in such a case. Shipowners were not, ho submitted, entitled to ask for exemption anymore than other classes of employers. It had been pleaded that they were, because the captain might be guilty of errors of judgment, and because of the perils of the sea. But no man would ask compensation for accidents occurring through ordinary perils of the sea or errors of judgment on the part of the captain. Before compensation could be obtained the men would be obliged to prove that someone was responsible; and 824 if no one was proved to be liable, no compensation would be recovered. The shipowners, he believed, thoroughly understood that. The same remark applied to ships colliding in foggy weather. It would not be right to ask for compensation in such a case; and if no fault could be shown on the part of the owners, captain, or officers, there would be no right to ask for compensation. If he were not troubling the House at too great a length he would like to bring under the notice of the right hon. Gentleman another case showing the hardships under which sailors suffered. It was the case of a vessel bound to Sydney in the early part of the year. During the voyage the captain, through drink, took to his cabin. The crew thought their lives were in danger. Instead of the captain taking command, as he should have done, he started praying in his cabin, and told the men to look after themselves. The men, instead of following his example, took charge of the ship and saved her, and when the captain had somewhat recovered presented a respectful petition to him, saying they could no longer allow him to have command of the ship. They put the mate in charge, as they believed their lives would be in danger if the captain resumed command. On arrival in port the captain was first ashore; he got warrants out against the men, and they were arrested, and sent to prison for 12 weeks. No difference should be made between men in ships or men in a mine. If it was hard upon the owners of ships to pay compensation for their whole crew, was it not, on the other hand, hard to leave the wives and children of the men unprovided for? They might remember, too, that very few ships carried as many men as were employed in a mine; indeed, the average crew of a steamer was not more than 20 men. Owners were, he thought, generally pretty well insured. He had done his best to convince the House that these men had been too long left without protection, and he wished to point out that the great reason why they were left outside the Act in 1880 was because they had at that time no combination—no Society which could voice their claims throughout the country. The right hon. Gentleman had referred to the Select Committee 825 upon which he (Mr. Wilson) had given evidence. Even at that time, when he had not half the knowledge of the question which he now possessed, he contended that seamen should have protection, not only in the United Kingdom, but in all parts of the world. At the Trades Union Congress, too, he had year after year moved or supported resolutions in favour of the extension of the Act to seamen—a deserving class of men, without whom they could not afford to do. Shipowners had threatened to employ foreigners on board their ships in place of Englishmen; but they would find that the foreigner always joined the Union, and was far more keen in asserting his legal rights than the English sailor was. He would like to inform the right hon. Gentleman that a very large number of foreigners were members of the Union, and that they were more keen for compensation in case of accident and sickness than Britishers. They were not ignorant of legal protection, for they were always to the fore when they had a case for the law tribunals, and they were never backward in seeking assistance of the Union in bringing forward claims. He did not think that the shipowners would be so foolish as to employ any more foreigners than at the present moment. The day would come when the country would require 20,000 men, who were now employed in the Mercantile Marine, to man the war vessels, for there was not sufficient men in the Royal Navy for the whole of the war vessels in the case of active service, and it would then be a sorry day for the shipowners if they extended their practice of employing foreigners on board their ships. It was bad enough at present; and the shipowners would find that they had made a great mistake in giving the preference to the foreigners instead of to their own fellow-countrymen.
§ MR. DONKIN (Tynemouth)
said that, as he was a shipowner, and represented a shipping constituency, the House would not, be surprised that he should intervene in this Debate. He had always advocated the application of the Employers' Liability Act to shipping, and other shipowners with whom he had conversed on the subject had agreed upon that point; but while shipowners were in favour of that Act, they wanted the law 826 to be equalised with justice. As far back as 1885 he had advocated that the Employers' Liability Act should be applied to shipping. There was some difficulty in replying to the charges of the hon. Member for Middlesbrough (Mr. J. H. Wilson) against shipowners, because he had neither given them names nor dates. The hon. Member had said, in the first place, that he knew of a case in which a captain who had lost three or four ships had been employed again by the same owners. Now, anyone conversant with shipping must know that if any captain lost a ship, the Board of Trade Regulations were at once down upon him, and he was obliged to appear before a Court of Assessors, where ho was examined as to whether the ship was lost either through negligence or want of care. But further, if an owner were to employ a captain who had lost three or four ships, he, for one, altogether failed to see how he could get his ship insured. It was an admitted fact that on all the great lines, not only if a captain lost his ship, but if the ship was stranded, he would never have an opportunity of getting employment from that company again. The hon. Member had given them rather a harrowing account of the funeral of sailors at sea. He would like to know whether there was any difference between the funeral of a sailor and that of a captain. The hon. Member went on to other cases, but he gave them no names or dates. There was a peculiarity attached to the shipping industry which did not attach to any industry on shore; and while shipping had its dangers, the men knew them, and were quite conversant with them before the articles were signed. The shipping industry was more subject to Government interference and restrictions than any other industry on shore; but shipowners did not complain of that, because they believed that, so far as it had gone, it had done a good deal towards improving the health of the sailors, towards lessening the loss of life, and, to some small extent, it had decreased the great risks which sailors were bound to undergo. But while they did not complain of that, they did assert emphatically that if the law was now going to compel them to do that which they had almost done voluntarily, it was only right that the shipowners of the Kingdom 827 should have an equal amount of justice under that law. A ship might sail from the United Kingdom which might be as efficient and staunch and seaworthy as it was possible for human skill to devise; but in spite of all that skill, through no fault or negligence on the part of the owner, hundreds of cases might occur abroad for which the hon. Member would make the owner responsible. He need not cite those cases, because there were so many, but be would give one or two. Ships were carefully inspected at the end of each voyage. The tops of the cylinders were taken off and examined, and hon. Members knew that there had been many cases when the ship was at sea in which bolts or nuts or nails had been put in the cylinder, rendering the ship inefficient. If that was so when the ship was in a dangerous position, he would ask if it was fair that the owner should be held liable for the faults of those whom he neither employed nor paid. The hon. Member for Middlesbrough said in his speech once or twice that an owner might send his ship to sea, and she might not be in an efficient state. Now, most ships—large ships particularly—which sailed from the large ports of London and Liverpool and other ports of the Kingdom were insured in what was called the time policy, which, as a rule, lasted for 12 months. If at the beginning of that policy the ship was not in a thoroughly seaworthy and staunch condition and was lost, and if it could be proved that she was not sound, the owner could claim nothing at all; but if, after about six months of the policy had passed, the ship should be found not to be in an efficient condition when leaving, say, Calcutta or Bombay, provided it could be proved that the owner was not cognisant of the fact, he could claim the insurance at law, and there was no underwriter who would test it. He asked the House to consider the enormous difficulty owners experienced in keeping their ships seaworthy. There were peculiarities attaching to shipping that did not attach to land. He asked the House to take the Amendment into consideration and give that justice to the shipowners which they thought was their due. They had no wish in any way to shirk their responsibility or any 828 liability which they had advocated in the past, and they were quite ready to submit to it so long as that liability was accompanied with equity and justice.
§ SIR F. H. EVANS (Southampton)
said, he was very sorry to see the Amendment of the right hon. Gentleman to this Bill, and he was also sorry to see that the spirit of this Amendment was carried still further in another Amendment on the Paper. The meaning of this Amendment was to exclude seamen from the protection of the Bill. Why should they be excluded? The late Home Secretary had said that the dangers peculiar to the life of seamen were greater and more exceptional than those of any other employment. Surely, then, they needed more protection. He noticed in the case that was put for the shipowners that they said sailors had exceptional protection under the laws that had been passed. That, of course, they knew, but they said that that did not touch the heart of the question. They had Government officials—Board of Trade officials—who gave certificates. They sent ships to sea in a seaworthy condition; but who, with a practical knowledge of ships, would tell him that the Board of Trade certificate covered the knowledge which was possessed by the owner of the ship? What certificate could tell them the real truth as to the equipment of a ship? The argument of the hon. Member who had just spoken had gone to the question of the safety of the ship. This Bill was not a Bill to protect them against the loss of the ship; it applied to what took place inside the ship. Allusion had been made to the cylinder top being removed when the ship came home. Why did they remove it? Did they remove it to save the firemen being burnt by steam? No; but because it was necessary for their insurance policy. It was necessary for their insurance policy that they could prove that the ship went to sea in a seaworthy condition. He had heard the question of insurance raised. Were they going to tell him that the insurance of a ship was going to be more because the underwriters knew that the equipment of that ship was to be so good that the owner himself was going to be liable? To say that would not show a knowledge of shipping, and the hon. Gentle- 829 man who had just spoken knew that as well as ho did. It was true that the clauses were stringent as regarded shipowners, but was it not necessary that they should be stringent so far as the crew were concerned? Let them go on board any of our British ships in foreign ports; let them not go to Liverpool, Southampton, or London to inspect the ships, where they would find everything apparently before their eyes in perfect order. Let them go to ports in distant parts of the world and investigate the case of ships where they had lost their captain, and where a new captain had to be found. So long as that captain had not lost a ship, did the owner take all the precautions he ought to do as to the character of that captain? If he did, the shipowner would not suffer by this Employers' Liability Bill. Did they suppose that all the great modern lines in this country were going to suffer because they passed this Bill? No, not one of them. It was a precaution against the class of ships which they knew traded from time to time, and went on long voyages and were lost sight of, and were covered at Lloyd's. Some of them came back, and some did not. There was no adequate protection given by any Government certificate. There was protection given against the loss of the ship, but there was not that protection for injury which they now sought; and he was delighted the Government had had the pluck to put into the Bill the seamen of this country. He knew something of the lives of these men in foreign ports, and in no walk of life was it so necessary to give additional precautions as in this. The late Home Secretary used an extraordinary argument. He said, "Your ships go away manned by foreign sailors." Were they going to get fewer English sailors because they improved their condition? If so, it was certainly a new economic law to him, and certainly, in experience, it would not be found to be a good one. Their object was to improve the condition of the great body of seamen in this country. They wanted to create in England a still greater reserve of those seamen. In every walk of life they were now making men better, and did they suppose they made the sailors worse because they gave them protection? We in this country had a 830 great love of the sea, and vast numbers would go to sea if only they knew that the condition of their lives when they got into far distant countries would be better than it had been before. He took some interest himself, as hon. Members knew, in shipping matters, and although in this Bill he was somewhat opposed to some of his Colleagues, all he could say was he welcomed the Bill, and he thanked the Government for bringing it forward. He begged hon. Members on both sides of the House, irrespective of other considerations, to do a great, though a very tardy, act of justice to a vast body of seamen in this country.
§ MR. S. WILLIAMSON (Kilmarnock, &c.)
said, the instincts of a shipowner might induce him to support this clause, but he hoped that fair judgment and the instincts of humanity would lead him to oppose it. He was sure the public sentiment demanded that the seamen should not be forgotten, but that when the House was doing justice to the workmen on shore the position of the seamen should, as far as possible, be taken into consideration. It would be a calamity if the seamen wore made to suppose that they were treated with less consideration than the workmen on shore. The right hon. Gentleman seemed to have lost sight of the word "negligence" in the Bill, and this Amendment was really a non sequitur. He road of a case that day in which the chief officer of a whaler returning from Greenland was killed by the falling of a block. What had that to do with the outfit or equipment of the vessel? If the block fell through carelessness, why should not the owner of the ship respond for the damage done in the loss of that brave life? There were many cases of accident at sea in which a sailor could not recover compensation, but, speaking as a shipowner, he did not see why in cases of negligence the owner should not be responsible. He should like the sailor to understand, so far as the circumstances and condition of his employment were concerned, that he was in no worse case than the workman on shore, and therefore he was decidedly opposed to the clause of the right hon. Gentleman.
§ Question put, and negatived.831
§ MR. FORWOOD (Lancashire, Ormskirk)
I wish, on behalf of the shipowners, to say that they are perfectly willing to bear the same burdens their fellow-employers bear on shore, the conditions being equal. The proposal I venture to submit to the House goes further than the proposal of the right hon. Gentleman which has just been decided by the House. My intention is to move an Amendment which shall exempt shipowners simply from liability arising from errors or faults in navigation. In that respect shipowners are in a perfectly different position to mine-owners and employers on shore; there is no analogy between the case of navigating a ship and the management of a mine. A mine is managed by certain rules; the manager of the mine has ample time and ample opportunities to put those rules into force and to see that they are followed out; but in respect to an officer who is in charge of a ship, the shipowner is in an altogether different position. He has certain rules, it is true; but he has to apply those rules in emergencies, in time of difficulty, in time of storm, in all sorts and conditions of weather. The responsibility lying upon a shipowner compared with that resting upon a mine-owner are two important, distinct, and separate matters. Take the case of a collision. If a shipowner's vessel comes into collision with another vessel and life or property is lost on the other ship thereby, not only is the owner of the vessel at fault a loser by the loss of his own ship and cargo and the lives on board, but he is responsible for all damage to the vessel with which his ship collided, thus doubling his responsibility as compared with the employer on shore. That is a very serious and important matter. In the case of a collision it is important that the evidence given in the case should be free from any suspicion that the witnesses are personally affected as regards the issue of the case. As the hon. Member for East Birmingham (Mr. Matthews) said, a seaman on the ship colliding would only obtain compensation under the Bill in the event of proving his ship to have been at fault. That is a wrong and improper state of things, as it places a temptation in the way of the men to give evidence which 832 would thereby do the employer great injury. I maintain that makes a very material difference between the shipowner and the employer on shore. In the one case the responsibility and the loss is confined to the property of the owner whose servants are found to be negligent; in the other case not only is the owner responsible for the loss of his own property, but for all injury to the other vessel. The circumstances under which a vessel has to he managed; the evolutions of vessels have to he considered, and they are perfectly different and distinct from those appertaining to any shore employment. A man navigating a vessel has at the time to bear many things in mind, whether it is a question of stranding or collision. He has to have regard to the compass, to the light, to have the cast of the lead, to consider currents at the time, wind, lapse of time between passing one light and the arrival at another, the bearings of the lights; he has also to examine his charts, and in some parts of the world the question of temperature arises. The officer in charge of a ship has all these circumstances to bear in mind in navigating his ship. He may be in a fog, or in a storm, or bad weather—all these matters ho has to keep in mind; and how can it he wondered at that now and again a man commits an error of judgment? and yet, according to the dictum that has been held, an error of judgment involves negligence, and that would involve the shipowner in liability. If the officer in command of a ship was in the same position with regard thereto as a man employed in charge of large works on shore, then it would be right and fair to put the shipowner in the same position as the man on shore. Now, Sir, I turn to the other part of the matter. I asserted at the outset I was perfectly willing, as a shipowner, to take all the responsibility that appertains to the equipment and management of the ship, and I care not whether that management appertains to a vessel in foreign or home ports. All that I ask that the shipowner shall be exempted from is, the responsibility for the navigation of the ship, for errors or faults in respect of the navigation of the ship on the part of the officers in command. All those cases that have arisen that have been cited by 833 the hon. Member for Middlesbrough (Mr. J. H. Wilson), who gave us certain cases of individuals who had lost their lives or been seriously injured by foot ropes breaking, hatches improperly secured, would not be taken from the purview of the Act under the Amendment I propose. Ho cited another case where a man was ordered down a hold without a lamp and fell into the lower hold, and another case where a man was ordered to undertake a dangerous duty. I do not think the Bill, even without any Amendment, would cover the case of a man ordered to do a, duty of exceptional danger, so long as it was a lawful order, and the man was supplied with the proper tackle to do the work. Then the hon. Member for Middlesbrough (Mr. J. H. Wilson) claims that the position of the shipowner and the position of the employer on shore were practically the same, and cited as an instance a man who might have half-a-dozen mines and leave the mines in charge of a manager whilst he went over to America, and that while he was absent enjoying himself an explosion might occur. I think the House would not consider that any argument at all. If a man chooses to have six mines or more he must take the responsibility; or if he goes far afield and leaves them in the charge of others, he must take the responsibility. But in the case of a shipowner he has no choice in the matter at all. He engages the; best shipmaster he can find, who is placed in full control. The shipowner can never inspect his ship or see to the conduct of the shipmaster: and, therefore, he is placed in an absolutely different position to that of an employer on shore. Consequently I feel that in this matter a shipowner will not have equal treatment with the employer on shore if you place on him the responsibility of any error of judgment or default in navigation. As regards the equipment of the ship, the carelessness of one seaman towards another, carelessness in fixing the hatches, or the thousand-and-one circumstances that might, arise to injure the seaman, I would let him have the full benefit his brother on shore had; but, taking the different circumstances of the management of a ship into consideration, the shipowner ought to be exempt from the 834 consequences of an error of judgment in connection with navigation. I claim that the desire of myself and my right hon. Friend who moved the previous Resolution is the same as that of any other Member of the House on behalf of the seamen. It is to the shipowning community that the country owes the position which it holds to-day; it is to the enterprise of the shipowners that the country owes its naval and maritime supremacy, and it could not have been obtained had not the shipowners treated their men properly and sent to sea fully-manned and properly-equipped ships. There is not another country where the officers and crews consider themselves so safe as on board British ships. Long may it be so! I therefore beg to move the following new clause:—
§ (Employer of seamen not responsible for injuries arising from perils of the sea.)
§ "That when the employer of any seaman, or other person acting on behalf of such employer, shall have exercised due diligence to make the ship in which the seaman is for the time being employed in all respects seaworthy and properly manned, equipped, and supplied, neither his ship, her owner or owners, or such employer shall be, become, or be held responsible for loss of life or injuries sustained by any seaman employed in or upon the said ship arising from faults or errors in navigation or in the management of the said ship, or arising from perils of the sea or other navigable waters, collision, fire, or any latent defect in the ship, her tackle, furniture, apparel, boilers, machinery, or other equipment.
§ A certificate of the Board of Trade or of the Government official survey department of any foreign country that the ship was seaworthy at the time she last proceeded to sea, shall be prima facie evidence that the condition of the ship, her tackle, furniture, apparel, machinery and boilers, and equipment is safe and proper."
§ * MR. SPEAKER
After the clause that has just been disposed of, it will be impossible for the hon. Member to move the whole of the clause; but it can be moved down to the end of the first word "navigation." The House has already decided upon the remainder of the clause.
§ Clause (Employer of seamen not responsible for injuries arising from faults or errors in navigation,)—(Mr. Forwrood,) —brought up, and read the first time.
§ Motion made, and Question proposed, "That the Clause be read a second time."835
§ THE CHANCELLOR OF THE DUCHY OF LANCASTER (Mr. J. BRYCE,) Aberdeen, S.
The purport and scope of this clause is very much simpler and narrower than that we were considering in the Amendment of the Member for East Birmingham (Mr. Matthews), being, whether or not it is desirable to introduce a provision into the Act, that for a bonâ fide and what may be called a reasonable error of navigation the shipowner shall not be liable. I understand the right hon. Gentleman who moved this Amendment did not intend to raise the question settled by the last Amendment, but was drawing a hard-and-fast line between cases of negligence and cases of error of judgment in navigation. We cannot accept that Amendment, and the reason we cannot do so is this: We conceive the basis and ground of any action against an employer, whether he be a shipowner or any other employer, is negligence—some species of negligence, either direct or indirect—of his servants, or owing to indifferent care exercised in the selection of his servants, but negligence in one form or another, which is the basis of liability. There is a great difference between negligence and mere error of judgment; and speaking of course with due deference to the opinions of higher legal authorities, I believe myself that no Court would hold that an error in judgment was negligence. Error in judgment is one thing, and negligence is another. An error in judgment might arise in circumstances that everyone must treat with indulgence. The view of the Government is that an error in judgment arising from some slight miscalculation due to currents, temperature of the water, and so forth, would not expose an employer to liability, and they would say exactly the same if it wore not the case of the shipowner, but the case of an accident on shore. It is not only at sea that these emergencies arise. Not 836 long ago on a railway in Lancashire it was obvious that an accident must occur, and the pointsman had to decide which of two accidents should happen, whether he would send an engine and train that was approaching on to the line where it would come into collision with a goods train, or on to the line where it would meet a passenger train, and on the spur of the moment he sent it on to the line of the goods train, and he decided rightly. There are cases which may occur in all sorts of dangerous employments, and it is never held that an error of judgment of that kind would prove liability. We cannot, therefore, accept the Amendment, because we consider that all reasonable compensation for liability is covered by Common Law; and if we were minded to go into this, we should appear to be contending that Common Law did not deal with the case; we should throw suspicion on the doctrine of Common Law, and raise questions of difficulty of construction. We consider that all the Amendment reasonably contemplates is already covered by Common Law.
§ MR. STOREY (Sunderland)
said that as he happened to represent a large shipping port, he might say a word about the Amendment. He had as much sympathy for the shipowner as the right hon. Gentleman, but when he looked at the Amendment he asked himself was that all that the representative of the shipowning community could ask from the House. He would ask the House to look at the clause in the light of the first clause of the Bill, with which it must be read. What did the first clause say—Where after the commencement of this Act personal injury is caused to a workman, seaman, or fireman by reason of negligence of any person in the service of the workman's employer of the seaman, or fireman, or in case of death the representative shall have the same right of compensation against the employer as if the workman had not been a workman of nor in the service of the employer nor engaged in the work.Now, under that clause the cause of action must be negligence of any person in the service of the employer. What the right hon. Gentleman proposed, in light of that clause, was that if there was fault or error in navigation because of the negligence of the captain or of an officer, then the owner would not be 837 liable. If it was not caused by negligence, but was an honest error of judgment such as might happen both on sea and on land, then the employer was not liable. He submitted the hon. Member was asking for so little it was not worth asking for at all.
§ * MR. MATTHEWS
What I am asking for is that the owner shall not be liable for injury owing to negligence on the part of his servants in the course of navigation. For instance, if a sailor was employed on a dark night to keep a look-out and did not do so, and so brought the ship into collision with another, the shipowner on shore ought not to be liable. Take a case that occurred last year, where a part of the crew refused to obey an order while a storm was going on, all who did not take part in that negligent act would have had an action against their employer by reason of the negligence of their fellow-seamen who had committed a fault in navigation. Again, a mistake in a light is a fault in navigation, but it is an act of negligence on the part of some member of the crew. In such a case my right hon. Friend asks that the owner should not be liable, and that seems to me to be a reasonable proposition, and I trust my right hon. Friend will go to a Division.
§ MR. CAYZER (Barrow-in-Furness)
said, these conditions of navigation made a wide difference between it and other sources of employment. They were different from those under which men did their work on shore, and, in his opinion, shipowners ought to be exempted from the liabilities which it was sought by this Bill to impose upon employers who carried on their business on land as regarded the amount of compensation that they might be called upon to pay.
§ MR. STOREY
said, the omissions in the case of shipowners were much more serious, just because of the different conditions.
§ MR. CAYZER
said, that might be, but they could be watched. They had to consider the perils of the sea undertaken by shipowners. It appeared to him that there was finality to the liability of the shipowner in this Bill. Many shipowners might not be able to meet the liability they would incur under the Bill. If 838 shipowners were required to pay compensation to all the representatives of sailors who might lose their lives in their employment, or to the sailors themselves who might be injured from no fault of the ship's officers, there would be no limit to their liability. Personally, he should like the Bill to go still further than it did and to enable workmen to obtain compensation in the case of all accidents, however caused, provided there was some reasonable limit of time for claims and that there was some limit to the shipowners' liability. He was sorry the Government had not given their attention in that direction.
§ MR. BODKIN (Roscommon, N.)
rose to Order. He wished to know whether the hon. Member was addressing himself to the point before the House?
§ MR. CAYZER
said, he was only trying to show the results that would follow if this Amendment were not accepted. If some provision of the kind lie suggested were included, it would be better for the workmen under the Bill. It was quite certain that the matter would have to be dealt with later on in a more extended way than was being done now; and, for his part, he wished they had arrived at a final decision on the question this year. In 1880 they had a Bill for dealing with it, but 13 years bad gone and yet it was not settled. There was no reason why all workmen should not be compensated within reasonable limits.
§ * SIR J. LENG (Dundee)
said, he was against this clause, because be thought it was undesirable that the House should do anything to diminish the interest of the shipowner in the management of his vessel. The hon. Member for Sunderland said that the right hon. Gentleman had asked too little.
§ * SIR J. LENG,
on the contrary, thought he asked too much, he asked that the shipowners should not be responsible for any fault or error in navigation. For instance, it was not at all an uncommon thing for 839 lives to be lost in consequence of the officers of a ship getting drunk, and in such a case the shipowner who employed such officers ought to be compelled to pay compensation. The shipowner might know it was the custom of the man he employed as master to take a drop too much; yet he allowed him to remain in charge! That was a fault for which he should be held responsible. In most cases when a ship was lost the shipowner was fully insured, whilst the men's lives were uninsured. Of course, when a disaster like that of the Victoria occurred there was great sympathy with the relatives of those who were lost, and funds were raised for their benefit; but there were hundreds of cases in which lives had been lost through the misconduct of the navigating officer, and nothing was done for the people left behind. He had long been in favour of some system by which the life of every man on board a vessel should be insured. To the credit of the Peninsular and Oriental Company, it was their custom to insure their men's lives, and it would be a great boon to the seamen of this country if that example was generally followed. There ought, to be some provision made of some reasonable sum for the widows and orphans of those who might be lost.
§ SIR D. CURRIE (Perthshire, W.)
said, that he was not in the position of the hon. Gentleman who had just sat down, because his company did not insure their vessels at all, but took all risks upon themselves.
§ MR. STOREY
said, that the hon. Gentleman's (Sir D. Currie's) Company had an insurance fund of their own.
§ SIR D. CURRIE
said, each shareholder in the Company made himself liable to the extent of £5 for each share he held, and thus they had subscribed a capital of £180,000: Through the skill of their navigating officers and the admirable conduct of their seamen they had been saved £150,000. That had nothing to do with the question before the House, which was simply one as to navigation. He thought that was a question upon 840 which he was entitled to speak. His right hon. Friend (Mr. Forwood) must have forgotten these words in the second line—That when the employer of any seaman, or other person acting on behalf of such employer, shall have exercised due diligence to make.He (Sir D. Currie) would add—"and to maintain." He thought that shipowners should be bound not only to send their ships to sea in a seaworthy condition, but that they should be compelled to maintain them in that condition throughout the voyage.
§ SIR D. CURRIE
said, his right hon. Friend was right in that. The question before the House was whether the shipowners were to be liable in respect of errors of navigation. He certainly thought it would be wrong that owners of ships should be exempted from liability in cases of errors of navigation. He certainly was of opinion that a shipowner should be responsible for want of care on the part of the captain or officers of his vessel.
* MR. GIBSON BOWLES (Lynn Regis)
said, it would be found that navigation included fewer things than the right hon. Member seemed to suppose, and, therefore, he thought the clause exceedingly restrictive. As to the first part of it, it was secured by the Board of Trade, and that provision should be carried out. The Amendment did not appear to him to meet the object which the right hon. Gentleman had in view. Whatever merits it had originally, it had none now, and he hoped it would be withdrawn.
§ * MR. LAWRENCE (Liverpool, Abercromby)
said, he was glad to find that both sides of the House sympathised with the sailor, to whom they were so much indebted for the wealth and industry of the country. The question involved in the proposed clause was a very important one, and it ought to be dealt with from a broad point of view. He believed the result would be to largely increase the expenses of the large shipowners and to drive the small owners off the sea, or compel them to form Joint Stock Companies, which had met with only partial success in the cotton trade. The matter, too, was not of such simplicity as was sometimes supposed. The policy initiated 841 by the Bill was far in advance of anything of the kind which other nations had adopted, except Germany. In America there was no such legislation, and though there was some legislation in France on the same lines, it did not include liability to make compensation for what were understood as errors of judgment. In 1886 the Member for Middlesbrough was in favour of this clause, as appears from the evidence of the Select Committee.
§ MR. LAWRENCE
said, as long as foreign laws were different and not so severe in those respects as English laws, foreign ships would have a great advantage over those of Great Britain. When it was remembered that shipowners could have no control over the captains and other officers of their vessels when far away at sea, it was hard that the owner should be held responsible for the errors of judgment that might occur.
§ SIR T. SUTHERLAND (Greenock)
said, he had no hesitation in supporting the new clause proposed. If the Bill stood as it was the result would be, although the word "negligence" stood in the first part of the Bill, that in cases of shipwreck in which inquiry showed that some fault or error had been committed, litigation would follow against the owner for damages. He thought the position of the Government, of the hon. Member for Sunderland, and of the right hon. Member for Liverpool would lie made clear if the Government would admit in the eighth line of the clause the introduction of the words "faults or errors of judgment."
§ MR. ASQUITH
said, that what had been said by the hon. Member showed that the clause was wholly unnecessary. What would be the use of providing that a shipowner should not be liable for "faults or errors of judgment" when the liability imposed upon him by the Bill itself was one only arising when there was proof of negligence? The question in the case of shipwreck was totally different from that which would arise under the Bill. In the case of shipwreck, the question whether the certificate of the master or mate should be cancelled or should be suspended for a 842 limited time did not depend on the proof of negligence in the sense in which the word was understood by the Common Law. It depended on a multitude of considerations. No seaman could maintain cause of action under the Bill unless it was established affirmatively to the satisfaction of the jury that the master or some person in the employment of the owner had been guilty of negligence which had caused the injury sustained. He was perfectly certain, speaking for the general body of shipowners of this country, that they had no desire whatever to stand in any privileged position, or to be under conditions different from those imposed upon others of their countrymen who were employers of labour. He trusted the House would reject the proposed clause.
§ Question put, and negatived.
§ MR. PARKER SMITH (Lanark, Partick) moved a new clause as follows:—
§ (Payment of compensation and costs.)
§ "Where compensation is awarded to a workman, the money shall be paid on his own receipt, and his solicitor or agent shall not be entitled to recover from him or to claim a lien upon the amount recovered for any costs beyond the taxed costs of the action, and such further sum, if any as the Judge who tried the cause may certify to have been properly and necessarily expended or earned."
§ He said that the same clause as that which he was about to move stood also in the name of the hon. Member for North-East Lanark (Mr. Crawford). The great mischief and evil in the working of this measure was the amount of litigation which it might entail. In conferring a great benefit on the working classes at large a great evil would often be done to the individual workman by the way in which he was hurried into litigation, and thereby, not the man himself, but a low class of lawyer would be benefited. Where the case was taken up by a Trade Union the solicitor was not likely to enter into a speculative action. But where the solicitor had to look, not to a Trade Union, but to the individual client, there was then a very serious danger, because he was acting for a client who had no means at all.
§ MR. PARKER SMITH
said, of course, if the Government agreed to 843 the clause he would not trouble the House, but content himself by moving it.
§ Clause (Payment of compensation and costs,)—(Mr. Parker Smith,)—brought up, and road the first time.
§ Motion made, and Question proposed, "That the Clause be read a second time."
§ * MR. HOPWOOD (Lancashire, S.E., Middleton)
said, he hoped the Government would not accept this Amendment. The first provision which it contained was unnecessary. The defendant was already entitled to demand the receipt of the plaintiff. As regarded the second, the solicitor was by law now only entitled to recover the taxed costs from his client, unless the latter had authorised the incurring of extra costs. [Cries of "Oh!"] They might excuse him, for he ought to know. He was speaking of an instance where a man had to get some one to take up his cane. The effect of this provision would be to prevent a man who wished to recover against an employer getting any respectable lawyer to take up his case. He did not see why there should be any clause, such as that now proposed. It might be that a difficulty would arise, and extra expense might have to be incurred to enable the action to be successful, and the operation of this clause would not assist the workman in recovering. Few workmen had the means to go to law, unless a lawyer would, at his own risk, take up the case. They could not ask the Judge to go into a case after a jury had found in the matter. He hoped the Government would reconsider the matter, and allow the ordinary procedure to remain. If they adopted this clause it would be a source of mischief to the workman.
§ MR ASQUITH
said, he believed that his hon. and learned Friend (Mr. Hopwood) was under a misapprehension. The greatest curse of the last 30 years in connection with the class of action now under discussion had been the pernicious activity of the speculative attorney. He was perfectly certain, speaking from his small personal experience, and he was sure ho would be borne out by those of larger experience, that it was a very common case to make claims without substance or foundation Such eases were taken up at the instance, 844 even the solicitation, of the lower class of attorney, and under such circumstances the workman incurred expenditure and the employer was exposed to expenditure without having to meet a legitimate case. He was satisfied that a clause of this kind was necessary in order to safeguard both workmen and employers against that mischievous form of activity. His hon. Friend did not appear to have realised that the majority of these cases were tried in the country, where the difference known in the High Court of Justice between taxed costs and costs as between solicitor and client did not exist. The solicitor would, therefore, get everything he might claim. In the small residue of cases to which that rule did not apply it would be for the Judge who tried the case to direct that the taxed costs should be taken before him for review.
§ MR. HALDANE
considered that this clause was not only a proper one, but one almost socially necessary. But before it was finally adopted he thought it would be desirable to look a little carefully at the wording. As it at present stood it applied only to "workman," but under Lord Campbell's Act there were other persons who would be affected who would not come under that designation. He would suggest that when the clause had been read a second time they should omit the words—compensation is awarded to a workman,in order to insert—the plaintiff recovers damages in respect of the liability of an employer for negligence.
§ MR. J. H. WILSON
thought the clause a very useful one, but at the same time it might work hardship on the seaman to require him to give a receipt. Before the money could be paid over, it might be necessary for him to leave the country on a new voyage and he might be away for a couple of years—a very common occurrence. Could not the seaman leave a receipt behind him?
§ MR. D. CRAWFORD
said, that the agent of the plaintiff could give a receipt. The words of the Amendment had been carefully studied. The clause had been put down in identical terms in 1888, and again in the Grand Committee lately. He did not think there would be any objection to substitute "representative" for "workman." As to the clause itself, 845 one of the greatest evils they had to contend against was that the compensation recovered under the Employers' Liability Act was often entirely swallowed up by the costs of speculative agents. Not infrequently it had been found that although compensation had been recovered there was a balance on the wrong side so far as the plaintiff was concerned. It was most gratifying to him that the Home Secretary had seen his way to adopt the clause.
§ MR. RANDELL (Glamorgan, Gower)
believed the clause would have the effect that it would not only keep within moderate bounds solicitors' costs, but would largely tend to reduce counsels' fees also.
§ Motion agreed to.
§ Clause read a second time.
In line 1, to leave out the words "compensation is awarded to a workman," in order to insert the words "a plaintiff recovers damages in respect of the liability of an employer for negligence."—(Mr. Haldane.)
§ Question proposed, "That the words proposed to be left out stand part of the Clause."
§ SIR H. JAMES
said, this Amendment would not cover the case in which the principal contractor became liable for the sub-contractor.
§ MR. TOMLINSON
said, that the difficulty could be met by inserting after the words "liability of an employer" the words "under this Act."
§ MR. RANDELL
said, the best course would be to leave out "workman," and insert "plaintiff under this Act."
§ MR. ASQUITH
said, the case of the sub-contractor and of the representative of a deceased workman would be covered by these words—Where plaintiff recovers damages from an employer in respect of negligence.
§ Question put, and negatived.
§ Question, "That those words be there inserted," put, and negatived.846
Clause amended, by inserting, in lieu of the words omitted, the words—
A plaintiff recovers damages from an employer in respect of negligence."—(Mr. Asquith.)
§ Clause, as amended, added.
§ MR. BOUSFIELD (Hackney, N.) moved, in page 1, after Clause 1, to insert the following clause:—
§ (Employments injurious to health.)
§ "Where, after the commencement of this Act, in any employment injurious to health, in which the risk of injury to health can be mitigated or removed by the use of reasonable precautions, the death or temporary or permanent disablement of a workman is caused by the neglect of such reasonable precautions, the workman, or, in case of death, his representatives shall have the same right to compensation and remedies against the employer as in other cases of personal injury due to negligence."
§ He said, that in principle the clause was accepted by the Home Secretary in the Grand Committee, but it was suggested that the form of it might be improved, He had, however, failed to see how this was to be done; therefore be had adhered to the original drafting. In the deadly trades, such as the white lead trade, or in some operations connected with potteries, and so on—in all those cases where operations were carried on which might cause injury to health the workman at the present time, if he could show that from negligence in the mode of conducting those operations injury was caused, had a remedy. He (Mr. Bousfield), however, had looked in vain to find a case in which it had been decided by a, Judge that negligence in the mode of carrying on these operations which resulted in injury to health had been made the subject of compensation. The clause very properly put neglect of reasonable precautious on the same footing as neglect of those precautions to which ordinary accidents were attributable. He, therefore, brought forward this clause.
§ Clause (Employments injurious to health,)—(Mr. Bousfield,)—brought up, and read the first time.
§ Motion made, and Question proposed, "That the Clause be read a second time."
§ MR. ASQUITH
said that, as the hon. Member had correctly stated, this ques- 847 tion was discussed in the Grand Committee, and he then undertook to bring up a clause if, upon further inquiry and mature consideration of all the points involved, he found it to be necessary to introduce a provision of the kind. The fact that he had not brought forward such a clause was an indication that in the opinion of the Government the matter was already adequately provided for by the existing law. Hon. Members would agree that it was necessary and expedient that Parliament should in every possible way enforce, not only its criminal and penal institutions, but those provisions giving an injured person a right to damages, and those statutory and Common Law requirements which fenced round and safeguarded industrial operations of a peculiarly dangerous nature. If he had thought it necessary to give to the workman under the Bill a right of action in regard to such employment as was referred to in the clause, he should not have been slow to do so. But after careful consideration, in consultation with the Law Officers of the Crown, the Government had come to the conclusion that the law as it stood was adequate for the purpose. It had been laid down by the House of Lords as lately as 1891, in the case of "Smith and Baker," Lord Watson and the present Lord Chancellor agreeing, that the master who employed his servants in work of a dangerous character was bound (at Common Law) to take all reasonable precautions for their safety. As he understood the rule then laid down, it was intended not only to safeguard life and limb from material accident, but to see that the employment was carried on under such conditions as to protect workmen from undue injury to health and from physical discomfort. The hon. and learned Member said he could find no case in which that decision had been upheld in a Court of Law, but he (Mr. Asquith) could find none in which it had been negatived. If this were acted upon—as it must be, having regard to the opinion of the highest tribunal in the country—by any lower tribunal, he was satisfied that every case intended to be provided for by the clause was adequately met by the Common Law, modified as it would be by the abolition of the doctrine of common employment by this Bill. In 848 the Grand Committee an Amendment was accepted, which had been embodied in the Bill, as the second sub-section to Clause 1, which made it no defence to say that a workman entered upon or continued in the employment after he knew the risk.
§ MR. BOUSFIELD
asked if the right hon. Gentleman had ever known any case amongst the thousands that occurred every year in which compensation had been sought for and obtained?
§ MR. ASQUITH
said, he was not aware of any such case, but, as he had stated, he did not know any case of the kind in which a Court of Law had refused compensation. He could not distinguish between the cause of action vested in a man who had had a limb cut off through defective machinery and that of a man who had been subjected to poisoning of the lungs or terrible physical malformation which took place in connection with these dangerous trades from the neglect of the precautions which a humane and reasonable employer ought to take. He could discover no substantial distinction between the two cases, and after the best inquiry he could make he was satisfied that if such a state of things was disclosed in an action brought by a workman against an employer the workman would be able to recover damages as much as if he had lost an eye or an arm. Under the circumstances, he thought it would tend to cast some doubt on the law as it stood, or would appear to be weakening and limiting it, to adopt the proposed clause.
§ MR. J. BURNS (Battersea)
sincerely regretted that the Home Secretary could not see his way to accept the Amendment. The right hon. Gentleman's position would have been intelligible if he had refused to accept it pending the Report of the Committee on dangerous trades. But whether or not he had a reason for refusing to accept the clause, he (Mr. Burns) sincerely hoped the right hon. Gentleman would soon have an opportunity of putting into operation the Common Law. He thought there was no class of workmen in this country more entitled to the sympathy of the House than those who were engaged in these trades—who were injured and maimed for life at an early age by noxious fumes, by white lead, by grinders' and potters' 849 rot, and many other diseases incidental to dangerous trades. The case that was sought to be brought forward was that of men engaged in dangerous trades in certain parts of the country, notably Lancashire. There men entered large chemical and alkali works in excellent health, some of them being men who had just left, the Army, and after labouring for three or four years their eyelids began to turn inside out, their eyebrows disappeared, and they lost their teeth. In nine cases out of 10 it was possible to diminish if not altogether prevent these terrible results. They were told by Dr. Littlejohn, who deserved the gratitude of every unskilled labourer, that in a certain place in the Midlands, out of 310 labourers who had died in one workhouse infirmary in a given time, 170 died from grinders' and potters' rot. Dr. Oliver, Physician to the Royal Infirmary, Newcastle, brought home the practical necessity of something being done for these unskilled labourers. In France, Germany, and Switzerland cases of this kind went before the Courts, whore there were physicians appointed by the masters and surgeons appointed by the men, and premature age arising from the dangerous character of the employment could be proved as an accident under the Employers' Liability Acts of those countries. He maintained that something ought to be done to require the masters in these trades to put their workshops and factories in order and to save the ratepayers of this country from having to keep hundreds of men, women, and girls, who really ought to be maintained by means of a graduated superannuation allowance to be provided by the Alkali Union and other large Corporations—and he spoke in the hearing of men who belonged to them — in those trades which were paying from 20 per cent, to 200 per cent, upon the capital they employed. He would give one typical instance of the dangers of these occupations. A man who was working at salt cake in one of these concerns earned some 40s. or 50s. a week, and out of that sum had to spend 15s. to 16s. to renew apparel that was actually burnt off his back in the course of his employment. The man lost in one week five cotton shirts, one pair of clogs, one singlet, and one pair of trousers, all of them being 850 burnt off him and destroyed. He appealed to the Government to see that after their Inspectors had completed their present investigations the workers in these dangerous trades were put on at least an equal footing with the workmen of France and Germany. Parliament should insure that these employers in England, out of their large profits, gave to their workpeople such compensation for the remainder of their days as the large profits of their businesses would allow.
§ SIR H. JAMES
was of opinion that the Home Secretary had misunderstood the tendency of the Amendment. It had nothing to do with negligence in respect of machinery or anything of that kind, its object being to provide that if employers could by reasonable precautions prevent an injurious state of things prevailing they should take those precautions. Take a case that often occurred in Lancashire, that of excessive temperature for sizing in weaving sheds, which caused a great deal of injury. The Home Secretary had agreed as to the desirability of precautions being taken, and said that the Common Law would give the artisan good grounds of action. He (Sir H. James) thought that was not the case. In the case of the man who was employed in a factory shed where the temperature was very high, the maxim volenti non fit injuria would apply, and he would not be able to recover compensation for injury to his health, although the employer might, with extra care, be able to reduce the temperature to 60 or 70 degrees. The decision to which his right hon. and learned Friend had referred did not touch the cases here in point, inasmuch as, in that instance, the man injured did not know that the crane was working above his head, and did not, as it appeared, even know that the crane was there at all. The maxim volenti non fit injuria had, therefore, no application in that case.
§ * MR. BRUNNER (Cheshire, Northwich)
thought that when two such distinguished lawyers as the Home Secretary and the Member for Bury (Sir H. James) were in doubt on the question the Government ought to set the matter at rest. The hon. Member 851 for Battersea had spoken about the chemical companies, and he would not affect not to know that the hon. Member referred to himself. He was glad to be able to toll the hon. Member that the trade which he (Mr. Brunner) carried on was not dangerous, and that when the Report of the Commission appointed to inquire into dangerous trades appeared it would be found that they had declared that his trade was not a dangerous trade.
§ MR. KEIR HARDIE (West Ham, S.)
said, he wished to speak on behalf of a different class of workmen to those already referred to—namely, the miners. Generally speaking, the mines of the country were well ventilated owing to the provisions of the Coal Mines Regulation Act, but there were still iron and other mines in the country where the ventilation was very imperfect. Mining was very injurious to the health of the miners employed. If it were the ease that a miner injured by working in bad air had a claim under the Common Law the acceptance of this clause by the Government could not weaken that claim in any way. If, on the other hand, the miner had no such claim, the acceptance of the clause would give it him. He hoped, therefore, from every point of view, that the Government would reconsider their decision and accept the Amendment.
§ MR. HALDANE
said, he was so much in sympathy with what had been said by the two hon. Members opposite that he trusted the Government would not accept the Amendment. He thought that if it wore accepted it would directly defeat the object those hon. Gentlemen had in view. If the Amendment were passed, affecting as it did occupations dangerous to health, it would be taken that the law was not intended to apply to mining, and many other trades which were not technically injurious to health if reasonable precautions were taken. If in an Act of Parliament they stereotyped the law, they prevented it from growing. He doubted if people generally realised the extent to which the Courts as well as Parliament and society generally had been gradually waking up to the necessity of taking wider and more humane views as to the responsibilities of employers. The growth of 852 the law in this respect during the last 50 years had been enormous. The Courts had been taking upon themselves more and more the duty of giving effect to the growing requirements of society with respect to the obligations of employers, and he should be extremely sorry to interfere with the gradual development of the Common Law, which was approximating year by year to the standard which the supporters of the Amendment desired to set up. If the law were stereotyped as suggested, it would deal only with negligence in trades which were injurious to health, and would not affect other trades. In the case of high temperatures in cotton factories for the purpose of sizing, for instance, it would be held that the workman had accepted the risk peculiar to his employment.
§ * SIR J. GOLDSMID (St. Pancras, S.)
said, he felt confident that it was eminently desirable to adopt the clause. The hon. and learned Gentleman who had just sat down had said that they should leave the Judges to expand the law, but it was the business of the House of Commons to expand the law, not of the Judges. The Home Secretary said there was nothing in the law which prevented a workman from recovering compensation in the cases contemplated in the clause. The answer was that no one had ever proceeded in such cases under the Common Law.
§ * MR. MATTHEWS
said, he was unwilling to intrude with yet another lawyer's opinion, seeing that they had agreed to differ, but he should like to examine the statement of the Home Secretary. The right hon. Gentleman argued that the clause was unnecessary because the cases at which it was directed would be negligence at Common Law. But could he seriously maintain that to engage a man to work in a trade such as that carried on by the hon. Member opposite (Mr. Brunner), which was generally admitted to be the most dangerous——
§ * MR. BRUNNER
said, ho had already explained that the Report of the Committee on Dangerous Trades would report that his was not a dangerous employment.
§ Mr. MATTHEWS
said, he had thought from what he had heard in the 853 Debate that the lion. Member's trade was the best example that could be taken of a dangerous trade. Take any other trade that was dangerous. Would it be contended that to engage in a trade dangerous to health without first taking special precautions was actionable negligence at Common Law? He maintained it was not actionable, even where 110 precautions at all were taken. Of course, they must not set traps for the workman. In the case of a man engaged to make gunpowder—if an accident happened to him no action for negligence would lie, even in the absence of precautions. He could not help thinking that the clause supplied something that the Common Law did not do. The hon. Member proposed to make it actionable negligence to employ a man in a dangerous occupation without taking all reasonable precautious. That, no doubt, was a totally different proposition — a very large one. The question of steaming sheds had been a bone of contention between employers and employed for many years. The hon. Member proposed to require the employer in that case to take all the precautions which duly could be taken. The case remained thus: The employer took the best advice he could get in order to protect the health of his workmen; yet a jury might hold him responsible for heavy damages because ho had not done something which had not been recommended to him by his advisers. These obligations might be imposed by Statute, and then upon any neglect of them by the employer an action would lie, which at Common Law would certainly not lie. The clause ought to be debated at considerable length before it was accepted in its present form.
§ MR. J. ROWLANDS (Finsbury, E.)
said, it had been very entertaining and interesting to listen to the conflict of opinion among hon. and learned Members, but they wanted something more practical than that. The discussion had proved most clearly the necessity for something in the Bill which would settle the law on this question. He endorsed the proposition in the clause that dangerous operations should be brought within the scope of the Bill. It might be well to draw the attention of the House to what it had already done in that matter. During the present Parliament, in dealing with a 854 Private Bill of the London County Council, those whose duty it was to examine the Bill upstairs had, at the request of the County Council, passed a clause giving that body power lo remunerate the men engaged in hazardous work in the Blackwall Tunnel, outside the scope of the Employers' Liability Act. The House was responsible for giving those extraordinary powers, and ho hoped the Home Secretary would see his way to accept the clause or to substitute some other clause for it.
§ MR. HOPWOOD
said, he concurred in the appeal to the right hon. Gentleman to accept the clause. There might be a good deal in his argument; but seeing that other legal authorities differed from him, it surely would be better to accept than to reject the clause.
§ * SIR F. S. POWELL (Wigan)
said that, as representing a district largely engaged in industrial occupations, one consideration had presented itself to his mind which was worthy the attention of the House. It was one thing to have in factories and workshops the necessary appliances for preserving health, and quite another thing to use them. It was his experience that in many cases fans and other appliances for ventilation had absolutely fallen into disuse, and were of no more service to the workpeople than if they did not exist. They might be set to work when the Inspector visited the factory, but the next day would be idle again. A clause of this kind would certainly act as a constant caution to those engaged in industrial occupations. The workmen would day by day be watching what was taking place, and he was sure the result would be that these health appliances would be more continuously in use, and that the health of the workpeople would be proportionately improved.
§ MR. ASQUITH
I can only speak by leave of the House; but after the discussion we have had, although I cannot acknowledge that the statement I made as to the law is wrong, yet after the expression of opinion I have heard on both sides of the House I do not think it, would be desirable to leave the matter where the Common Law leaves it. I have, therefore, to state that as far as the 855 Government are concerned they are prepared to accept the Second Reading of of the clause; but in order to obviate any objections as to its limited application, such as those referred to by my hon. Friend the Member for Haddingtonshire, I shall, at the proper time, move to omit the words "injurious to health."
§ MR. TOMLINSON
said, he objected to the vagueness of the term "reasonable precautions" as contained in the Bill. He held that if Parliament had any duty with reference to dangerous occupations it was to provide some means by which the proper precautions to be taken in the conduct of such occupations should be known to those who carried them on. In the case of mines those precautions were strictly laid down, and heavy penalties could be imposed on mine officials for any breach of the regulations. It therefore appeared to him that there should be something more definite than "reasonable precautions" inserted in the clause—a less vague phrase should be introduced.
* MR. GIBSON BOWLES
said, the question whether the clause ought to be accepted turned upon a point which nobody seemed to be able to decide, i.e., whether the Common Law gave power to enforce the liability? He wished to invite the opinion of the Solicitor General on the subject. He should have thought that whatever their differences of opinion on Statute Law, the lawyers would be agreed upon points of Common Law. He would like to be satisfied as to the extent of the Common Law powers, because if they were sufficient to meet the case, they need not burden Statute Law with this provision. It seemed to him that the clause was extraordinarily large and vague. What was "injurious to health"? A great many persons held that the air of the House was injurious to health, and a largo number of persons had contended that the Home Rule Bill was injurious to health. Therefore, it was not right or judicious to put such a vague expression in an Act of Parliament. Some might think it a reasonable precaution not to come down to the House on such a cold day, while others might hold that having come it was a reasonable precaution not to go home. What were "reasonable precautions"?
§ * MR. SPEAKER
The hon. Member's remarks were not, I must say, relevant to the clause. I hope he will not trifle with the House.
MR. GIBSON BOWLES
said, that the clause was already wide and vague in its language, and the Amendment which the Home Secretary had indicated he would move would render it dangerously wide. He should have to vote against it.
§ Question put, and agreed to.
§ Amendment proposed, in line 2, to leave out the words "injurious to health."—(Mr. Asquith.)
§ Question proposed, "That the words proposed to be left out stand part of the Clause."
§ MR. MATTHEWS
said, he really could hardly understand the reason why the words were to be omitted. The clause was intended to protect men engaged in certain dangerous occupations, and now it was proposed to extend it to all classes of employment, and to presume there was negligence unless reasonable precautions were taken. The clause, if amended, would be totally different from the one the House understood it was going to adopt.
§ MR. A. J. BALFOUR (Manchester, E.)
I hope we shall have some better defence than has yet been vouchsafed. The Government are in this extraordinary position: First, they resisted the clause on the ground that it went too far. [Mr. ASQUITH: No.] Then, having heard the arguments on both sides, they come to the conclusion that it would be better to accept the clause. Next, the Government say that it docs not go far enough, and they propose a considerable Amendment, which alters the structure and import of the clause. As an impartial auditor of this discussion on a subject on which I do not pre- 857 tend to be an authority, I think we ought to have further explanations. We are dealing with the great industries of the country, and we want something more than the mere obiter dictum of the Home Secretary. This Amendment has not yet been defended. One of the greatest dangers the House has to avoid in dealing with this question is the danger of promoting unnecessary litigation. That is not a danger, perhaps, which presents itself to the legal mind, but those of us who are laymen are extremely anxious that in everything done for working men—or apparently done for them—it shall not be done at the cost of promoting litigation which would in the end practically deprive them of all the advantages which, at first sight, the machinery of the law would appear to confer. But is it not true that if the House extends this clause to every employment, whether dangerous or not, not only will a heavy penalty be inflicted on the employers, but a great injustice as well, while what is even more important, the trade operations of the country will be hampered? Take the case of any healthy employment, and suppose that by the fact of a brother workman opening a ventilator in a factory another workman catches a feverish cold and is disabled for a fortnight, is it fail or tolerable that that should be a ground for his bringing an action for damages against his employer? Again, take the contrary case. Suppose one of the workmen closes the ventilator and produces a condition of atmosphere such as to temporarily lay up a fellow-workman, and a doctor is found to certify that the man's illness was due to the closing of the ventilator, is it fair that an action for damages should lie against the employer, who, as a matter of fact, had in neither case anything to do with either the opening or closing of the ventilator? Is it not unreasonable, and does it not open the door to a great deal of litigation? It is obligatory on the employer to take advantage of all the general resources science may put at his disposal for preventing any injurious effect arising to the workmen on account of the occupation in which they were engaged. As has been pointed out, the clause as originally framed was intended by the hon. Member who moved it to 858 apply merely to dangerous employments, in respect of which mitigating arrangements are perfectly well understood. But if it is extended in the way now proposed; if the employer is to be made responsible for every trifling illness due to mismanagement on the part of one of his employés, the Bill will do very little to benefit the workman, but will do a great deal to increase litigation, and to make the conditions under which the industries of the country are carried on doubtfult, difficult, and, in some cases, impossible.
§ * THE LORD ADVOCATE (Mr. J. B. BALFOUR,) Clackmannan, &c.
said, the reason for the Government proposing this Amendment was that the clause as it originally stood was, in the judgment of the House generally, unduly limited. It was limited to trades necessarily, or almost necessarily, injurious to health. But the same reasons which made it proper to require that precautions should be taken in dangerous trades, laid even a greater obligation on the employer to use precautions in the case of trades which might be injurious to health, but were not necessarily so. Lot them take, for instance, the case of mining. They knew that, under the conditions prescribed by law, mining could be carried on without being necessarily injurious to health, but that if the regulations were not properly carried out, it might and probably would become a dangerous industry. As the clause stood, if a miner complained that the proper precautions were not taken, the reply would be that mining was not necessarily injurious to health, and he would lose his right to recover in consequence. The Government thought it would be unfortunate if the clause were not so worded as to lay the obligation of using all due and reasonable precautious upon employers in all trades where there was some risk.
§ SIR R. WEBSTER (Isle of Wight)
hoped the House would understand what it was doing. The refinement of mind of the Lord Advocate bad led him to suggest to the House that if the words "injurious to health" were left out it must be assumed there was some risk of injury to health in a given employment before the clause could apply. He did not think that anybody else reading the 859 clause would come to that conclusion, and lie submitted that if the words were left out the clause would read—Where after the commencement of the Act in any employment in which the risk of injury to health in that employment can be mitigated," &c.That might be right or it might be wrong, but what did it mean? In the case of stable employment, in which injury to health sometimes arose through the escape of gas from the drains, it might happen that although the employer had laid perfectly proper drains, a trap might be left open by the carelessness of a workman, and one of his fellow-workmen made ill. It would be extremely difficult to say that such a case would not come within the mischief to which the Lord Advocate referred only a few moments previously. If it did not, and if the right hon. Gentleman meant that in such a case the employer would not be liable, what became of the abolition of the principle of common employment? Surely they must go upon some reasonable principle in accepting or rejecting Amendments. The Lord Advocate had instanced the case of mining. He could not have chosen a worse example, for, as they all knew, that industry was hedged round by statutory provisions, and so were the alkali and other industries in which there was an appreciable risk to health. But, as the Government now proposed, they did not direct what precautious the employer was to take; they left it entirely for a jury to decide what were reasonable precautions, and the precautions which the jury decided upon might be those which competent experts decided were not suitable. He was not opposing the clause; he thought it had been shown to be necessary in the case of dangerous employments, but the acceptance of the Amendment would involve the widening of the object of the Bill without any corresponding benefit to workmen. The only ones who would benefit would be the members of the profession to which he belonged, and he certainly, on behalf of that profession, did not desire to see extended the opportunities of litigation in this matter. As to the point whether the Common Law sufficiently met the objects of the clause and protected the workmen, with all due deference, he was 860 bound to say he thought the Attorney General was wrong in his view.
§ THE CHANCELLOR OF THE EXCHEQUER (Sir W. HARCOURT,) Derby
The point at issue is a very simple one. As the clause stands it only applies to trades which are essentially injurious to health. But suppose there is a trade which is not necessarily injurious to health, but which by the omission of reasonable precautions becomes so, there à fortiori we ought to create responsibility for the results. I read to-day that on a train coming out of the Mont Cenistunnel all the men working it were found to be insensible owing to the employment of bad coal. That is a case in which an employment not injurious in itself became injurious in consequence of the want of reasonable precautions—the employment of bad materials by which the men were made to suffer to the point of death. I hope, therefore, a majority of the House will accept this Amendment.
§ Question put.
§ The House divided:—Ayes 71; Noes 188.—(Division List, No. 312.)
§ SIR R. WEBSTER
said that, as the words had been omitted from the clause, he submitted that there were two safeguards which should reasonably be inserted in the clause in order to prevent its being used in what the Home Secretary would agree would be an improper and oppressive manner. He suggested that employments which wore protected by Statute ought to be exempted. It seemed to him to be a wrong thing that a man should be brought to account for neglect of reasonable precautious where there were statutory regulations for the trade being carried on in an healthy manner. He therefore suggested that the words "not protected by Statute" should be inserted in the place of the words omitted. He would also move later on to insert in the third line, after the word "precautions," the words "known in the trade." With regard to his first Amendment, ho would point out that it might happen that although some particular precaution had been taken when ordered by an Inspector under a Statute, a jury might think that some other precaution ought to have been taken. He 861 therefore thought the clause ought to apply to employment not protected by Statute only, and he moved his Amendment to that effect.
In line 2, in lieu of the words omitted, to insert the words "not protected by Statute."—(Sir R. Webster.)
§ Question proposed, "That those words be there inserted."
§ MR. ASQUITH
I confess that I follow with amazement and bewilderment the tactics of the Opposition in this matter. I ventured in the first instance to think this clause unnecessary, because it is sufficiently covered by Common Law. I proposed to extend it to trades and employments that are not protected by special statutory regulations, and against that the Opposition divided. The House having determined that the clause should be extended, not merely to trades injurious to health, but to all trades, the same Opposition propose to omit from the clause trades injurious to health. In other words, if this Amendment were carried the whole of the ground covered by the original proposal will be entirely omitted from the clause, and absolutely nothing will be left but that small shred which, by my Amendment, has been introduced into the clause. I understand the decision to which the House has come is that this protection, if it is to be given at all, shall be given to all trades in which there is any risk of injury whatsoever. Certainly the House is not going to stultify itself by excluding from the ambit of the clause some of the trades in which protection is most necessary.
§ MR. A. J. BALFOUR (Manchester, E.)
I wish to know whether, in the opinion of the right hon. Gentleman, any trade is to be excluded from the operation of the clause? The right hon. Gentleman said that the clause is to apply to every trade in which there is any risk of injury whatsoever. I presume there is no occupation in the world, or even want of occupation, in which an injury to health may not occur. In fact, the idlest man living may suffer some injury to his health for want of precautions. I therefore want to know what is the meaning of his phrase. The right hon. 862 Gentleman denounced the tactics of the Opposition. But what have been the tactics of the Government? The Home Secretary opposed the introduction of the clause on the ground that it was unnecessary because the subject was covered by Common Law. Then my hon. and learned Friend the Member for Haddingtonshire got up behind the right lion. Gentleman and, while he did not support the contention of the Home Secretary that the clause was entirely covered by the existing law, he said that it would be covered by the law, as the law would gradually grow and be moulded by the Judges of the land.
§ MR. HALDANE
I did not say the law would grow to that point, but that it had grown, as was shown by "Smith and Baker," and would grow still further.
§ MR. A. J. BALFOUR
I feel myself quite incapable of dealing with "Smith and Baker." I feel sure that in their sober moments the Government will realise that the clause is now far too wide in its terms, and that its application ought to be limited to particular cases, for which this development of the law is really required. I would suggest, however, that the Amendment at present before the House need not be pressed to a Division, as my lion, and learned Friend has a future clause which will possibly carry out all that is necessary and desirable.
§ Amendment, by leave, withdrawn.
§ MR. MATTHEWS moved to insert, in line 2, after the word "health," the words "being caused by the employment." He thought they were importing into the Bill a clause which might land them in difficulties no one could foresee, and his object was to confine its operation to cases where there was a risk of some injury to health arising out of the employment itself.
In line 2, after the word "health" to insert the words "being caused by the employment."—(Mr. Matthews.)
§ Question proposed, "That those words be there inserted."
§ It being Midnight, the Debate stood adjourned.
§ Debate to be resumed To-morrow