HC Deb 05 July 1897 vol 50 cc1153-84

(1.) If in any employment to which this Act applies personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject its hereinafter mentioned, be liable to pay compensation in accordance with the first schedule to this Act.; such compensation shall be payable whether the injury occasioned arises from the act of the employer or of some person in his employ, or from the act of a stranger thereto. Provided that where such injury shall be occasioned by the act of a stranger under circumstances creating a legal liability to pay damages in respect thereof, the workman may at his option proceed either at law against such person to recover damages or against his employer for compensation under t his Act, and if he be compensated under this Act the employer shall be entitled to enforce in the name of the workman all rights of action possessed by him against, the person occasioning such injury as aforesaid.

(2.) Provided that:—

  1. (a) The employer shall not be liable under this Act in respect of any injury which does not disable the workman for a period of at least two weeks from earning full wages at the work at which he was employed;
  2. (b) When it is decided, as hereafter provided, that the injury was caused by the personal negligence or wilful act of the employer or of some person for whose act or default the employer is responsible, nothing in this Act shall affect any civil liability of the employer, but in that case the amount of damages due from such employer may, at the request of the persons claiming compensation, be settled by arbitration in accordance with the second schedule to this Act, or may at the option of such persons be recovered from such employer by the same proceedings as were open to such persons before the commencement of this Act; but the employer shall not be liable to pay compensation both independently of and also under tills Act, and shall not be liable to pay compensation independently of this Act except in case of such personal negligence or wilful act;
  3. (c) If it is proved that the accident is solely attributable to the serious and wilful 1154 misconduct of a workman, any compensation claimed in respect of injury to that workman shall be disallowed.

(3.) If any question arises as to whether the injury was caused by the personal negligence or wilful act of the employer, or of any person for it hose act or default the employer is responsible, or whether the injury was caused by accident arising out of and in the course of the employment of the workman injured, or whether the accident was solely attributable to the serious and wilful misconduct of the workman in respect of whose injuries compensation is claimed, or as to the amount or duration of compensation under this Act, or otherwise as to the liability for compensation under this Act, the question, if not settled by agreement, and any questing as to whether the employment is one to which this Act applies, shall, subject to the provisions of the first schedule to this Act, be settled by arbitration, in accordance with the second schedule to this Act. Proceedings for the recovery under this Act of compensation for an injury shall not be maintainable unless notice of the accident has been given as soon as practicable after the happening thereof, and the Claim for compensation with respect to such accident has been made within six months from the occurrence of the accident causing the injury, or, in case of death, within twelve months from the time of death. Provided always that the want of such notice shall not be a bar to the maintenance of such proceedings if it is found in the proceedings for settling the claim that the employer is not prejudiced in his defence by the absence of such notice, or that such absence was occasioned by mistake or other reasonable cause. Notices shall be served in the manner provided for by the Employers' Liability Act 1880, Section seven.

(4.) If the Registrar of Friendly Societies, after ascertaining the views of the employers and workmen, certifies that any scheme of compensation or insurance for the workmen in any employment is on the whole not less favourable to the workmen and their dependants than the provisions of this Act, the employer may, until the certificate is revoked, contract with any of those workmen that the provisions of the scheme shall be substituted for the provisions of this Act, and thereupon the employer shall be liable only in accordance with the scheme, but, save as aforesaid, this Act shall apply, notwithstanding any contract to the contrary made after the commencement of this Act. No scheme shall be so certified which contains an obligation upon the workmen to join the scheme as a condition of their hiring.

If the funds under any such scheme are not sufficient to meet the compensation payable there out the employer shall be liable to make good the amount of compensation which would be payable under this Act.

(5.) The Registrar of Friendly Societies shall in every year make a report of his proceedings under this Act, and that report shall he laid before Parliament.

(6.) If any workmen or their representatives shall submit to the said Registrar primâ, facie evidence that the provisions of any scheme are no longer so favourable to the workman as the provisions of this Act, or that the provisions of such scheme are being violated, or that the same is not being fairly administered by the employers, or that satisfactory reasons exist for revoking the certificate, then he shall examine into the complaint, and, if satisfied that good cause exists for such complaint, shall, unless the cause of complaint is removed, revoke the certificate.

(7.) Whenever a scheme has been certified as aforesaid, it shall be the duty of the employer to answer all inquiries and to furnish all such accounts as may from time to time be required by the Registrar of Friendly Societies.

SIR MATTHEW WHITE RIDLEY moved in Sub-section (1) to leave out the. words:— be liable to pay compensation in accordance with the first schedule to this Act, such compensation shall be payable whether the injury occasioned arises from the act of the employer or of some person in his employ, or from the act of a stranger thereto. Provided that where such injury shall be occasioned by the act of a stranger under circumstances creating a legal liability to pay damages in respect thereof, the workman may at his option proceed either at law against such person to recover damages or against his employer for compensation under this Act, and if he be compensated under this Act the employer shall be entitled to enforce in the name of the workman all rights of action possessed by him against the person occasioning such injury as aforesaid. He explained that this Amendment was consequential upon the adoption of the clause to which the House had agreed.

Amendment agreed to.

On the return of Mr. SPEAKER, after the usual interval,

MR. CRIPPS moved to leave out paragraph (b) of Sub-section (2) of Clause 1, and to insert instead thereof the words:— (b) An employer shall not be liable to be proceeded against independently of this Act in the case of any injury to which the procedure of this Act applies, but when it is decided by arbitration that any injury has been caused by the serious and wilful misconduct of the employer, or of some person for whose act or default the employer is responsible, nothing in the first schedule to this Act shall limit the amount of compensation payable by the employer. The hon. and learned Member, in the course of whose remarks an unsuccessful attempt was made to count out the House, said this was a matter in which there could be no difference between the interests of the, workman and the employer. The interests of both could only be to ascertain the amount of liability and the speediest and most economical way of avoiding legal expenditure and delay. Now, it was an arguable question whether they should have arbitration procedure, or whether the common law methods would not be better, but clearly they should have one method or the other, and seeing that. they had adopted arbitration in the Bill as the proper method of ascertaining the amount payable to the workman, they ought to limit the form of remedy to arbitration and to no other; and that was why he moved the Amendment.


could not assent to all the words of the Amendment, but the principle of it he entirely agreed with. In his opinion it was one of the most important Amendments in the whole Bill. The acceptance or rejection of it would have more to do with the success of the Bill than almost any other Amendment that could be proposed. There were and must be conflicts in the Bill as between separate interests, as between the employer and the workman, but this was an Amendment which was to the interest of both. He should be very much surprised if they did not join for the purpose of recommending the Government to accept this proposal. According to the present law the workman could bring an action against his employer if he had been guilty of any negligence himself, and that action had to be tried in the High Court. In addition to that the workman had a right of action against his employer by virtue of the Employers' Liability Act. That was in the case where some person for whom the employer was responsible had been, guilty of negligence. In that case he must go to the County Court. So that they had already two classes of procedure, and the workman had to choose which he would accept. If he went to the County Court and the Judge said he ought to have gone to the High Court, or if it was the other way, the workman found his whole expense and labour had been thrown away, and he had to commence proceedings anew. That was not a satisfactory state of things, and it was going to be aggravated by this Bill, because they now had a third remedy—the remedy for compensation under the terms of this Bill. The consequence was that when a man had been injured he would have to consider whether he was to go to the County Court, the High Court, or to the compensation arbitration tribunal. If he found himself in any one of these tribunals when he ought to be in another the whole of his expense was thrown away. Was that in the interest of the workman to begin with? It could not be. His chance of recovering damages or compensation might be dependent upon his taking the wrong tribunal. They put this unfortunate workman—an illiterate man, be it remembered—to to whom they wanted to give his remedy with as little of legal technicality as possible, in peril because they had three classes of remedy. Was it to the interest of the employer? He thought the hon. Member for Stroud would agree, not only that the workman should be able to bring his action in the arbitration court, but that the employer should be entitled to compel him to do so. ["Hear, hear!"] He thought it ought to be a reciprocal benefit. This would be a check upon those unscrupulous solicitors who endeavoured to levy blackmail on an employer, because he could force him to go to the arbitration court without involving himself in any expense. The Home Secretary, feeling that there was something in this, had put an Amendment down on the Paper. By that Amendment the Government proposed that when a roan brought an action independently of this Act and it turned out that he was entitled only to compensation under the Act, and not to bring an action, that action was not to be dismissed, but the compensation awardable under the Act was to be given in the Court. That substituted the proceedings of the action for the proceedings of the arbitration. The Government saw it was necessary to meet the point, and, instead of meeting it by making arbitration universal, at the option of either party, what they did was practically to give the workman the option of going to law instead of to arbitration. The choice of the House lay between these two things—either they were going to give the workman alone, as the Government proposed by their Amendment, the option of bringing an action or going to arbitration—which was a one-sided affair, and he did not think fair—or they were going to give either the employer or the workman the option to say that they would have the matter settled by arbitration whether it arose at common law, under the Employers' Liability Act, or under this Act. This was a most important question, and he was certain that, if it was fairly explained to the employers, they would see that the principle embodied in this Amendment was to their true interest as well as to that of the workmen.


thought the hon. and learned Gentleman opposite had somewhat belittled the suggestion which had been made by the Government in order to meet this difficulty, and he certainly attributed a consequence to it which did not exist—that was to say, the possibility of double proceedings. He could not help reminding the House that the great matter which lay at the root of the suggestion of the hon. and learned Member for Dumfries was his wish that all the proceedings should he forced to arbitration, whether they arose at common law or under the Employers' Liability Act. He thought his hon. Friend who moved this Amendment and the hon. and learned Gentleman opposite must have forgotten the Debate which took place in Committee, and the attack made on the Government because they had proposed to refer to arbitration the question of the personal negligence en wilful default of an employer. His hon. Friend and the hon. Gentleman opposite desired to remedy this matter by forcing everything to arbitration. They had been told that which was not the experience of one working lawyer out of this House—that arbitration was a cheaper and more expeditious procedure than the County Court. That was exactly the contrary of all their experience, and they had been pressed front very influential quarters to make the proceeding much more analogous to the proceeding in the County Court, and not to allow this proceeding of arbitration to be so much the order of the day. They had met the wish for a simple procedure by saying that, if a workman did not allege any personal negligence or wilful act or default on the part of the master, he should take his proceedings under the Bill—first before the committee, and then before the arbitrator if necessary. His hon. Friend would admit that in that case there was no necessity to alter the Bill in the way suggested. Then take the case of a workman who thought he had got an action for personal negligence, or wilful act, or default. When the Government proposed that that question should go to arbitration, they were told from all quarters of the House that that ought not to go to arbitration. The hon. Baronet the Member for Wolverhampton protested against the question of a wilful act on the part of the master being dealt with by arbitration. A workman who was going to allege that his master had been guilty of personal negligence would at once see that the measure of damages was not limited to the provision in the Bill; he would be advised that his remedy was to pursue his common law rights, and he would go to the County Court or the superior Court. The Government had endeavoured as far as they could to meet what they understood to be the express wish of the House—that where it became a question of personal negligence or wilful default on the part of the employer it should be decided in open Court with the safeguards which the master now had towards his protection, at the same time making it secure that no hardship should be caused to the workman by being driven from Court to Court to recover the amount of the compensation. The Government had in their judgment adopted the simplest and best way of meeting the difficulty, and the one which would cause the least amount of friction and expense. It would be a benefit to all parties, while at the same time carrying out the wishes expressed by the representatives of employers and workmen.

MR. J. WILSON (Durham, Mid)

said that he and his friends had tried to judge this question from a common-sense standpoint. They had looked upon the Bill as a means to the promotion of peaceful relations between employer and employed. He believed that in every case the avenues to the law should be closed as much as possible, and that access should be given to more peaceful and less costly tribunals. If disputes could only be settled by an appeal to the Law Courts, a feeling of friction resulted injurious both to employers and workmen, deterring them in the future from seeking the methods of conciliation, which it was the interest of employers arid workmen to foster. When the Bill was introduced he took the view that there were to be three different modes of procedure:—(1) Where there were committees in the districts who would represent the workmen and employer, then the settlement of disputes should in the first place be placed within the purview of the committees; (2) where committees did not exist then arbitration should be resorted to; (3) where arbitration was not accepted and acted upon then there should be an appeal to the County Court. He did not understand why it should be urged that arbitration cases would be no less costly than an appeal to a Law Court. It was a strange statement to make. He was a member of a workmen's organisation and there were no fewer arbitration cases settled in Durham than at least a hundred every year. They were not very costly, and there was no appeal to law. If they could keep out any suggestion that the Law Courts were the final tribunal they would conduce a great deal towards the formation of those Committees composed of employers and workmen which would settle these questions in the way in which they ought to be settled. It had been said that this Bill was rushed through the House and through Committee; but there had been a change in the views of hon. Members opposite. When the Bill was introduced he did not beam a single employer demur to its introduction. The Second Reading was not challenged by them, and every hon. Gentleman opposite, and especially the capitalists, were willing to accept the principle of the Since the Committee stage however, every capitalist had done his best to oppose the Bill. He maintained that there should be an appeal first to the committees composed of workmen or employers and then if this was not successful recourse should be had to arbitration. He hoped the House would favour any attempt made in the insertion of a principle which might conduce to that end.


, as an employer, was strongly in favour of the simplification of procedure under the Bill. He understood that when the Bill was introduced one of the strong features by which it was proposed to recommend it to employers in the Louse was, that it would avoid litigation. [Cheers.] If there was one thing about the Bill—harsh as it was in many respects—about which as an employer he felt strongly, it was this principle, that they were to have one court to go to, and one only. He believed that the provision suggested by the Amendment of the hon. Member for Stroud would really go a very long way to avoid the difficulty and the friction which would be created by the Bill of litigation in some cases and arbitration in other cases. They wanted to be perfectly certain that when they went before the arbitrator he was to have full power to deal with the question before him. As to the wilful misconduct on the part of the employer, he thought it would be difficult for the arbitrator to fix a monetary consideration to be awarded to the individual on the same scale as would be the case at common law. Employers of labour had a right to ask the House to make the Bill as fair to them as they could. One of the best ways of doing that was to adopt the Amendment of the hon. and learned Member for Stroud, inasmuch as under that Amendment all questions would be referred to the arbitrator. He believed that the Amendment would really and truly simplify the procedure, and therefore he strongly supported it.

*MR. JOHN WILSON (Falkirk Burghs)

said that as. a mine owner a and a large employer of labour he desired to support the argument so eloquently advanced by the hon. and learned Member for Dumfries. He was surprised to hear the Attorney General say that he had not heard anything from the employers as to arbitration. An Amendment in favour of arbitration for all cases arising which he put down was ruled out of order by the Chairman of Committees. Employers would have good reason to complain if the Government did not accept the spirit at least of this Amendment. There were many things which pressed hardly on the employer, anal were difficult to bear, such as being liable for the acts of strangers, and they were entitled to expect that all eases should he referred to arbitration and that even there should be State insurance. The opinion was universal that all the questions which would arise under the Bill should be referred to arbitration, and he very earnestly wished the Government to accept the Amendment.

MR. ALEXANDER URE, (Linlithgow)

said the object of the Amendment was to preclude actions at law wherever arbitration could be effectively employed. The Amendment would achieve that object, and be knew of no reason why the House should not accept it. Hon. Members were desirous that the workman should not he deprived of any remedy he had hitherto had, but they were not desirous that that remedy should be obtained at the expense of costly, but by means of a cheap, procedure. Under the Act of 1880, although no doubt a workman was compelled in the first instance to bring his claim in the County Court in England, and in the Sheriff's Court in Scotland, he might at an early stage of the litigation remove his claim into the higher Court, and have it so adjudicated upon by a Judge and jury at great expense in proportion to the unit of damages he ultimately would recover. The reason why the Scotch people had held that the Act of 1880 was a total failure was that the costs had so far exceeded the amount of compensation recovered, and that the friction generated between employer and workman during the course of the litigation did very pond' to increase the difficulties between capital and labour, which had been greatly felt. In Scotland this Bill had been hailed with delight, because it was believed it would preclude the possibility of large bills of expenses being incurred, and enable compensation to be awarded at the cheapest possible rate. The Amendment of the hon. and learned Member for Stroud would reduce the costs and at the same time preserve the right to compensation. The wish had been expressed in all quarters of the House that compensation should be awarded by the most rapid and inexpensive method, and he was persuaded that if the Attorney General would but accept this he would make the Bill a much better one than it was at present.


hoped the Government would favourably consider the views expressed in all quarters of the House in support of the Amendment. The great attraction which the Bill possessed from the point of view of the Scotch people, was the prospect it afforded to getting rid of the extravagant expenses which hitherto had been incurred. In Glasgow, for instance, 115 out of 370 had been carried into the Court of Session. The claim of the Government was that the workman when injured should be able to go past the arbitration and take his case into Court. The workman had simply to allege that the accident was due to the personal negligence or the wilful act of the employer; he had not got to convince anybody at all. Now, without convincing anybody at all, simply on his own allegation that the injury was due to the personal negligence or wilful act of his employer, he would be able to take the case into court. He was sorry to say there was a great number of low-class agents, especially in Scotland, who endeavoured to get hold of a man when he got hurt, and whose desires were not at all to get compensation for him, but simply to run up costs for themselves. See how the scheme of the Government would play into their hands. There would be no longer any reason for the workman to content himself with making a moderate claim against his employer, because under the scheme or the Government he could not be in any worse position by making an unlimited common law claim in respect of the negligence or the wilful act of his employer. He would make that statement, and would go into the Sheriff's Court and thence into the Court of Session without any possibility on the part of the employer of preventing him. He would have a thoroughly expensive action, and even if it turned out that there was not a shadow of foundation for his allegation of negligence or wilful misconduct, the only result would be to run up heavy costs, which would come partly out of the pocket of the employer and partly out of the money which should have gone as compensation into his own pocket. That, he thought, would be regarded as a singularly unfortunate result. In Scotland it had been the great attraction of this Bill that it got rid of these abuses, this power of incurring excessive expenditure. He did not want to labour that too far. He would only say that it had been admitted again and again that it was a great abuse in Scotland. Under the late Government, in the debates on the Employers' Liability Bill, amendments were accepted by the Government and carried without discussion, which would have had practically the result of the Amendment now before the House—which would have made every case go to the Sheriff's Court and to the corresponding court in England, the County Court. That was the view taken by the late House of Commons; it was the view taken by a considerable number of representatitve bodies in Scotland, and by the Miners' Association; it was the view which working men themselves all felt inclined to take. The workmen were no more anxious to get into the hands of the low-class agents than their masters were to see them. He hoped that the Government, who had made this proposal no doubt with a view of meeting a theoretical difficulty without a sufficient sense of the abuse to which, it was open, would accept the views expressed so strongly in different parts of the House in favour of arbitration in all cases.

*MR. WARR (Liverpool, E., Toxteth)

did not pretend to speak as an employer of labour, but he did pretend to speak as a lawyer having some practical experience of the effect of litigation between employer and employed. Speaking in that capacity, he did most earnestly hope that Government would neglect no opportunity of ousting the jurisdiction of the Courts between employers and employed, and of substituting for the courts a tribunal of arbitration. The courts were the very worst tribunals for dealing with questions between employer and employed. They were bad for the employer because in every case he went into court with the certainty of having to pay costs even if he won his case; and they were bad for the employed, because if a workman took a case into court and won it, he was thenceforward a. marked man. He could see no earthly reason why the issue of the personal negligence or wilful act of the employer should not be decided by arbitration. It seemed to him to be an entirely suitable topic for arbitration.


hoped that Her Majesty's Government would have the courage of their convictions. The very limited scope of their proposed Amendment seemed to be overlooked. It was confined entirely to that very small category of cases in which a charge of personal misconduct was made against the employer. He thought the House need not be distressed by any sentimental consideration in favour of an employer who was subject to a charge of that kind. He failed altogether to appreciate the arguments of those who would seek to protect an employer subject to such an allegation from passing before the ordinary tribunals of law. One would imagine, from the employer's own point of view, that he would court public investigation in a case where moral culpability was alleged. ["Hear, hear!"] He hoped the House would dismiss the idea that in every case, without exception, the workman should be compelled to submit to arbitration. The last person to entrust such an issue as that involved in the allegation of negligence or wilful misconduct would be an arbitrator nominated by a County Court judge. A charge might be brought against the owner or manager of a large colliery, himself a professional man, and the issues at stake might be of enormous importance to him. The issues might also be of great importance to the workman, because he might be representing a large number of men who were seeking compensation, and it was essential that such a case should be tried with gravity and deliberation before a public tribunal. There was danger that an arbitrator appointed by the County Court might not command the confidence of either workmen or employer, and the only alternative was that the issues should be submitted to a tribunal in which judge and jury took part, and whose decision would command acceptance by all parties. It was impossible to leave an arbitrator to decide questions of character such as were necessarily involved in cases of alleged wilful misconduct or default either on the part of the employer or of some person of trust to whom he had deputed the management of a large undertaking. He had on the Paper an Amendment that would provide for arbitration at the desire of the parties; but the Amendment now before the House forced it upon both whether they desired it or not. In the first place character was involved; and in the second place they might have a question of heavy moral responsibility, with a possibility of criminal proceedings following. There had been, let them suppose, a great colliery explosion. Some cases were put forward in order to test the responsibility, both civil and criminal, of the owner and manager of the colliery. That issue must, under this Amendment, be tried by an arbitrator, who would thus be put in the position of having to decide on a question of moral responsibility, which was bound to come before the tribunals of his country. The Government, he hoped, would not assent to that.


said they must all agree that in the great majority of cases arbitration was the fittest and best tribunal to try claims under this Bill. But the hon. Gentleman went much farther, and provided that in all cases both parties should be forced to accept arbitration, whether they had confidence in the tribunal or not. Under this Bill claims of a ruinous amount might be made, and questions of character might be raised of the highest importance. There was already a limit to the jurisdiction of the County Court, and a very proper limit, but was this jurisdiction to be extended without any limit at all in cases of workman and employer—and extended not to the County Court as a public tribunal, but to the judge or his nominee sitting in camera? Would any reasonable man in his senses consent that a liability which might be absolutely ruinous should perforce be settled by such a tribunal? Moderate and reasonable claims they might be always willing to submit to the shortest and cheapest way of determining them; but when the questions at issue were so enormous and vital as they might be under this Bill, surely the parties ought not to be forced to submit to arbitration. He hoped, therefore, that the Government would not accept the Amendment.


said the Debate was one of great importance. He could not accept the scheme of the right hon. Gentleman. An alternative remedy seemed to him to be a great defect in procedure. The House ought to provide one remedy suitable to the case, and compel its adoption in every instance. It appeared to him that of the two remedies that proposed by the Amendment was far cheaper than the procedure under the scheme of the Government. He thought the Amendment, if adopted, would be of advantage to all concerned.


should vote for the Amendment, as he was anxious, as far as possible, to substitute arbitration for litigation.


said reference had been made to the abuses which had occurred in Scotland in the working of the Employers' Liability Act. The abuses in Scotland arose from the fact that whereas in England under the Act of 1880 causes were to be initiated in the County Court, and only removed to the Supreme Court on cause shown, it was forgotten that there was in Scotland a section of an Act passed at the beginning of the century, under which all such causes were to be removed without cause shown.


was surprised to hear the hon. Member for Wigan say the question of character was not involved. The matter went far beyond the question of character; it involved the decision by the arbitrator whether an employer had committed manslaughter or not, and in his opinion that was a most unfair thing to do. The workman had nothing to fear under the clause by making that serious charge against the employer, because if he substantiated it, he got unrestricted damages, and if he failed, he could still claim damages under the Bill.


said that it seemed that some hon. Members went on the idea that arbitration in every case was cheaper than litigation, but such was not the case. If there were one thing more expensive than litigation it was arbitration.


said they had been told that the object of this Bill was to avoid litigation, but he doubted whether that would be achieved by this Amendment.

Question put, "That the word 'when' stand part of the Bill.—The House divided; Ayes, 150; Noes, 126.

SIR MATTHEW WHITE RIDLEY moved in paragraph (b) to leave out the words "it is decided, as hereafter provided."


observed that if these words were left out no primâ facie proof would be required that the injury has been caused by the negligence or wilful act of the employer. A mere statement to that effect would be quite sufficient and thereupon the procedure by arbitration could be set aside by the workman.


explained that if the words were not admitted there would be a kind of double procedure which would be objectionable.


asked whether if these words were struck out it would be possible in every case for a workman to proceed by action, making the allegation of personal negligence a wilful act on the part of the employer. If a workman made that allegation could the whole procedure be by action, the arbitrator being ousted altogether.


Yes; but in such cases the workman would run the risk of having the costs of an unfounded issue of personal negligence or wilful act found against him by the judge and that would be a serious liability.

Amendment agreed to.

MR. ASQUITH moved in paragraph (b) to leave out the word "personal." He said that if the House should adopt his Amendment he should ask it subsequently to have out "wilful" in order to substitute the word "wrongful" and to add after the word "act" the words "or omission." Were the Government, he asked, or were they not, going to give a workman the alternative of enforcing his rights at common law and under statute or of proceeding to obtain compensation under this Bill? He had understood the Colonial Secretary to say in Committee that the intention of the Government was to give workmen a complete and exhaustive option between those two courses. He was apprehensive lest under the clause as it stood the common law and statutory rights of workmen should be very seriously cut down. Under the law as it at present stood, if a workman were injured in the course of his employment and could show it was due to the negligence of the employer, or to some wrongful act or omission by a person for whom, under the Employers' Liability Act of 1880, the employer was responsible, he could recover damages. He understood from the Colonial Secretary that it was intended to preserve that right to the workman in its integrity. But if the words stood in the Bill, two additional cases would have to be considered which, in the present state of the law, did not and could not arise—if it was the negligence of the employer that was alleged, whether it was personal negligence, and if it was the act of a superintendent or foreman for whom, under the Act of 1880, the employer was responsible, whether the negligence was wilful. This would give rise to subtle distinctions entirely novel in their character, and of infinite complexity, both as to law and fact. If they agreed that they would retain to the workman all the rights he at present enjoyed under common law or statute, it was desirable that they should adopt the simplest possible language, and that when they were dealing with common law liability they should use the won "negligence" and where they were dealing with statute law "wrongful act or omission." Was it the intention of the Government to preserve in their full integrity all the rights of the workman? It must be remembered that there were many cases under the existing law, in which workmen by enforcing their legal rights would obtain a larger measure of compensation than under this schedule. If the Government intended to preserve that right, no language should be used which would suggest that it was cut down and modified. To obtain the clear decision of the House that every existing right of the workman, whether by common law or by statute, would be preserved to him, he moved his Amendment.


said the question raised by his right hon. Friend was an important one, and he would endeavour to give a clear answer. First, the House should bear in mind that they were proceeding on the assumption that this Bill offered to the workmen in the trades with which it dealt exceptional and extraordinary advantages, and the Government believed it was in the interests of the work men and of simplicity of procedure that in the vast majority of cases—if not in all—they should take advantage of the Act and of no alternative procedure. ["Hear, hear!"] But they endeavoured to meet what they thought was an exceptional case—namely, that there might be an occasion—although they considered it extremely rare—in which there was such gross personal negligence on the part of the employer that the compensation awarded by the Bill would be insufficient, and something in the nature of punitive proceedings ought to be contemplated. That was the case in which they desired to preserve in their full integrity all the rights of the workman. The Government never said they intended to preserve all the present rights of the workman in their full integrity because they substituted something better than their present rights. ["Hear, hear!"] But in cases of moral negligence and liability on the part of employers they had endeavoured to provide that any rights which the workman now possessed he should have at His option. He was not certain that his right hon. Friend the Member for East Fife was right in saying that the workman could obtain larger compensation under the existing law than under this Bill. It was entirely contrary to the experience of his present rights, because the average compensation the workman had received under the existing law was less than the average he was likely to receive under the Bill and according to the scale employed in the Schedule of the Bill. The Government treated as an extremely exceptional case the case of deliberate and peculiar negligence on the part of the employers and for that only they made exception. There should be some reciprocial understanding as to the obligations of work-people as well as employers. In the case of workpeople the Government had guarded them from exclusion from this Bill except under extraordinary and peculiar circumstances. They had said that only if it were proved that the accident was solely attributable to the serious and wilful misconduct of the workman should compensation in these cases be disallowed. He was not quite certain that it would not be fair to adopt exactly the same words in the case of the employer; but, at all events, he wished to make it perfectly clear that a similar responsibility was to be established. They might not use exactly the same words, but they meant practically the same thing. They meant that an employer was to be guilty in the same sense in which they had supposed a workman to be guilty before he was to be excluded from the provisions of this Bill. Unless better words than those they had adopted could be suggested, he thought they would sufficiently guard the case of the employer. But certainly he could not admit that it ever was their intention, while imposing upon the employer all the obligations of this Bill, at the same time to leave him open in every case to all the claims which at present could be made under the existing law in every case of accident.

Sin R. T. REID

said he quite agreed with the right hon. Gentleman that there should be only one form of procedure, but, as regarded the rights affected by this Bill, the speech of the right hon. Gentleman indicated an entirely new departure. They had not heard when this Bill was introduced that this was a Bill for disfranchising as well as enfranchising. They had thought that the Bill was intended to confer a new right on workmen, and not to diminish their existing legal rights. [" Hear, hear!"] The right hon. Gentleman had told them that in return for the immense advantages conferred by this measure—and he admitted they were great advantages—the workman was to be deprived of any other recourse against the employer outside the Bill, except in special cases, which he covered, not inappropriately, by the general phrase moral responsibility or blame attaching to the employer. But by this Bill three years of wages was the maximum of compensation that could under any circumstances be granted, or six years part wages.


said that in the case of incapacity that was not correct. In that case it was seven-and-a-half years.


said half a year would not make much difference to the argument. The point was that in the case of serious injury by reason, not of wilful default, but of negligence, either on the part of the employer himself or of a person for whom he was responsible, a workman was at present entitled to unlimited damages at common law. Was that right now to be reduced to a limit of three or three-and-a-half years' wages That was certainly not what they had understood, and it altered entirely the character of the Bill. ["Hear, hear!"] Instead of being an unqualified boon, the Bill would be in the nature of a bargain, and he hoped the House would appreciate what they were dividing upon.

MR. W. R. BOUSFIELD (Hackney, N.)

said they had had in view the question of the ultimate extension of this principle to all trades, and it had been understood that, while universal compensation might be a good thing, it was also desirable to preserve existing safe-guards against negligence on the part of the employer. He failed to see the importance of the point under discussion except from a legal and technical point of view. The omission of the word "personal" would make scarcely any difference now in the practical view of the Bill. After all, the point in dispute was merely a question of precision of language. In A cases where the employer was liable before, the Bill would leave him liable still.


said that, in Committee on the Bill, he had moved an Amendment to secure the object now aimed at. The right hon. Gentleman the Colonial Secretary rose, and, in reply to that Amendment, made a speech which led them all to understand that the intention of the right hon. Gentleman was to preserve to the workmen all their existing rights, and to give them further advantages. But the House had just listened to a speech from the right hon. Gentleman in which all that was changed. They could not help associating that change of attitude on the part of the right hon. Gentleman with the deputation of angry employers, headed by a noble Marquess, which the right hon. Gentleman had recently encountered. The workman was having taken away from him by the Bill rights which he had at the present moment. He believed the right hon. Gentleman, if left to himself, would have brought in a better Measure, but the right hon. Gentleman was in the hands of other people. The result was that the rights of the workmen were being frittered away, and undoubtedly the Bill was a different Bill from what they had gathered it was in Committee.


said everyone knew that the law of employers' liability, as it stood, was a complete failure. About three or four times as much money was spent in litigation than the amount of claims recovered, and it would be a bad thing to allow the workmen any longer to be tempted by pettifogging attorneys to throw away the substance of the Bill in favour of the shadow an appeal to the Courts might give him.


said that if the word "personal" were omitted, the liability of the employer would undoubtedly be extended far beyond what was proposed in the sub-section. There were a very large number of cases of accidents in which there was no personal negligence on the part of the employer, and no personal negligence on the part of some person for whose act the employer was responsible, and if the word "personal" was left out, it would undoubtedly result in largely extending the liability which the Bill placed on the employer. There was another point. On the Second Reading of the Bill, he himself had pointed out that one of the corresponding advantages conferred on the employer was that the old rights of the employé were not to be maintained in their full integrity. That question was discussed on both sides of the House, so that it was perfectly understood that the Government Measure did not seek to maintain in their full integrity the old rights of the employés under all conditions. They were assured more than once that the rights were not maintained in their full integrity, but that it was the intention of the Government only to give the full liability as against the employer after the arbitrator had decided that there had been personal negligence. The only Amendment at the present time on that position was that the employer could proceed under the common law liability. The workmen, however, could proceed under the common law liability or under the Employers' Liability Act, without the arbitrator in the first instance, finding that there had been personal negligence or wilful act on his part. So that if any Amendment had been introduced, it had not been an Amendment in favour of the employer or anything that could have been suggested by the deputation the other day, but an Amendment introduced by the Government in favour of assisting procedure when that procedure was initiated by the workman. The alternative Amendment which he suggested having been negatived, the Amendment of the Government was in favour of the simplicity of procedure for the workman.


had before him the actual words used in Committee by the Attorney General in introducing the Amendment, containing the words now under discussion. The hon. and learned Gentleman said that— they had adopted the words which were practically those of the Employers' Liability Bill, personal negligence or wilful act of the employer or some person for whose act or default the employer was responsible.' They believed they had reserved to the workman by these words every case which would come within the Employers' Liability Act. There was the statement by the highest legal authority of the Crown in that House that these words were intended to reserve to the workman every right which he had now got under the Employers' Liability Act. Under that construction it must be obvious that the word "personal" could not have the meaning which was now put upon it by the Colonial Secretary, but must be mere verbiage over and above "wilful and wrongful act and default." It could not alter the statutory liability, upon the authority of the Attorney General. If it could not alter the statutory liability, it would not alter the common law liability, and as the word, upon the construction of the hon. and learned Gentleman, was meaningless and did not, on his authority, convey the meaning which the Colonial Secretary had to-night given it, he submitted it would be only reasonable for the House to accept the Amendment of the late Home Secretary.


remarked that, as what he had said on the Committee stage had been quoted, he would remind the hon. Member that the particular passage to which reference had been made arose upon the question as to the words, "person for whose act or default the employer is responsible," and his observations, if his memory served him aright, were made after the Colonial Secretary and the Home Secretary had both of them pointed out that what they intended to reserve was the right of the workman to sue the employer where the employer had been guilty of personal negligence. He quite agreed that, taken apart, his words would appear to have a wider meaning than they were intended to bear at the time. If the hon. Member would look at the earlier part of the Debate he would find what he was there dealing with was the question as to the words "person for whose act or default the employer is responsible," and which, he said, were taken from the language of the old Employers' Liability Act. If the hon. Member would look at that Liability Act, he would find that the expression "personal" negligence did not occur at all.


The hon. and learned Gentleman in the Debate in Committee spoke after the Home Secretary but before the Colonial Secretary.


expressed the opinion that while the discussion had been interesting, so far as he had been able to gather it seemed a question between tweedledum and tweedledee. He had had some experience in Northumberland and Durham of the common law, and, so far as he had been able to judge, it was of very little value indeed to the workman. If he were to mention the sums which had been obtained by the workmen under the existing law he thought the House would be somewhat surprised. So far as he was concerned, he did not care whether the Government accepted or refused the Amendment, as he was satisfied it would make very little difference to the workmen of the country. It was of such trifling value that his own inclination would be to accept it and give the workman the advantage of the present law.

Question put, "That the word personal' stand part of the Bill:"

The House divided:—Ayes 209; Noes, 123.—(Division List, No. 269).

Amendment proposed in paragraph (b) to leave out the words— case the amount of damages due from such employer may, at the request of the persons claiming compensation, be settled by arbitration in accordance with the Second Schedule to this Act, or may at the option of such persons be recovered from such employer by the same and to insert the words "the workman may at his option either claim compensation under this Act, or take"—(Sir Matthew White Ridley.)

Amendment agreed to.

Amendment made in paragraph (b) to leave out the words "such persons," and to insert the word "him."

MR. WALTON moved, in paragraph (b) after the words "commencement of this Act," to insert the words,— Provided that when the workman claims compensation under this Act alleging that the injury was occasioned by such personal negligence or wilful act as aforesaid, the employer may elect to have the said claim determined by a jury, and the same shall thereupon be transferred to the High Court and tried accordingly.


said, that under no circumstances could the Government accept this Amendment. It had apparently been framed as an Amendment to the Bill as originally introduced, but, however that might be, it would give a privilege to the employer in that particular case which would encourage litigation, and so defeat the intention of the Bill.

Question, "That those words be there inserted," put, and negatived.

MR. RENSHAW moved, in paragraph (b) to leave out the words "pay compensation," and to insert the words "be proceeded against."


pointed out, that before any Question of arbitration or County Court comes in, there was the Committee of employers and employed. It seemed quite possible that some proceeding of that sort must be taken, which would be excluded by the Amendment.

Amendment, by leave, withdrawn.

SIR MATTHEW WHITE RIDLEY moved, in paragraph (b), after the word "compensation" to insert the words "for injury to workman by accident."

Amendment agreed to.

SIR MATTHEW WHITE RIDLEY moved, in paragraph (b) after the word "pay," to insert the word "such."

Amendment agreed to.

SIR MATTHEW WHITE RIDLEY moved at the end of paragraph (b) to insert:— If an action is brought to recover damages independently of this Act for injury caused by any accident, and it is determined in such action that the injury is one for which compensation ought to have been claimed under this Act, the action shall not be dismissed, but the damages recovered from the employer shall not exceed the compensation payable under this Act.


suggested that instead of the word "ought," the Home Secretary should insert the words "could only." The word "ought" was, he submitted, ambiguous.


was understood to say that the proposed substitution was not necessary.


thought the clause as it stood was likely to lead to a good deal of litigation. There were members of his profession who were not very respectable—they had been called "pettifogging attorneys"—and who looked out for a number of actions of this kind. They would go to a workman who had been injured and induce him to bring an action, instead of taking the cheaper and more convenient way of going to arbitration, and, as he understood, he would be certain to get his costs. If he were wrong he should be glad to hear from the Attorney General that that was so.


rose to move his Amendment to the Home Secretary's proposed Amendment.


It appears to me that this is not strictly an Amendment to the Amendment of the right hon. Gentleman the Home Secretary. It can be moved as an Amendment after that Amendment has been carried.

MR. ALFRED LYTTELTON (Warwick and Leamington)

said he agreed with his hon. and learned Friend tile Member for Walsall that if this Amendment were inserted the invariable effect would be that the workman under the guidance of a "pettifogging attorney" would proceed to a very heavy claim, and that unless there were some penalty provided against his doing so in the way of costs the effect would be that in each case the more serious claim would be preferred. The practical result would be that arbitration which it was the object of the Bill to attain would be ousted.


suggested that the Attorney General should put in a specific provision that, if an action were not on the basis of wilful misconduct and no misconduct were found to exist, the actions being dismissed, no costs should be given. There would then be a safeguard which would preserve the procedure of arbitration.


said he would point out in the first place that this particular amendment was absolutely necessary. It was consequential upon what they had passed. They had decided that a workman should be allowed to recover his Act Compensation, if he might so say, in an action which he had brought alleging that the employer was guilty of wilful misconduct. Therefore, these words must go in, but he had already pointed out that in his judgment the proper safeguard would be a discretion as to costs. They thought any reasonable Judge via) found that an unfounded action was brought by an employer being found guilty of wilful misconduct would give costs against the plaintiff. If when they came to the question of costs it were thought that the provision was not sufficient, they could easily insert words to that effect.


said this clause, as now proposed, did not regard all action brought in case of negligence on the part of the employer. It distinctly contemplated an action which did not apply to that, hut which arose out of an accident which ought to have been compensated under this Act. This clause proposed that the action should go on, but that it should be limited in the amount of compensation. The object of the Bill was to avoid litigation, hut here the House was being brought back from the arbitrator to litigation once again. Where they found a man who refused to take the method which the Bill provided, it was the business of those who believed in the principle of the Bill not to protect mini and to maintain him in His refusal, but to turn him back to the arbitrator. He could conceive nothing more calculated to lead the eminent solicitor and the still more eminent counsel to advise an unfortunate workman not to proceed with arbitration but to go to the flight Court.


said that apparently the hon. Member had not been present when the matter was discussed before in Committee, and when by the practically universal assent of the House au Amendment, of this kind was claimed and asked for. Under the Bill they gave to the workman an option in certain circumstances to proceed by a different method than that given in the Bill. Originally the Bill provided that if the man made a mistake and selected the wrong procedure, then he should be thrown back to the other procedure, and have his remedy in that way. To this it was objected on both sides of the I louse that it would be unfair to the employer and the workman because in the case of mistake both would be subjected to the system of trying two actions, one after the other, first an action in the High Court and next arbitration. A desire was generally expressed that if a work-made made a mistake it should not prevent him from getting a decision. Accordingly if the man went to the Court, and the Court found that there had been a mistake, the Court had to deal with the point as if a Court of Arbitration were acting under the Bill. In that way litigation and expense would be saved.


said that the difficulty that danger of law agents getting hold of men and pressing them to run their claim were very real obstacles indeed. Costs would not terrify a man who had nothing to lose. Agents would take up the work on speculation, and he did not like the system of using the compensation given under the Bill to satisfy the claims of the people who were fighting out the case in court.


wanted the Government to say how they would treat the Amendment of the right hon. Baronet the Member for the Ormskirk Division of Lancashire.


said he could not recall the actual promise made by the Government to insert this Amendment. It was not altogether wise that a workman should be entitled to bring an action against his employer alleging personal negligence on the part of the employer, and yet should suffer nothing in the event of failure. If an action were dismissed as wrong, there should be some penalty imposed on the workman for having brought it. This would be met to a certain extent by the Government accepting the Amendment of the right hon. Baronet next on the Paper, and the Government might now give some indication of the view they took of the Amendment.


It would not he in order to open a discussion on that Amendment upon the Amendment now before the House.

Amendment agreed to.

SIR ARTHUR FORWOOD (Lancashire, Ormskirk)

, having given notice of the following Amendment: To add after the words last inserted:— Provided that where in any action brought to recover damages independently of this Act for injury caused by accident it is determined that the compensation ought to have been claimed under this Act, the costs incurred in defending such action must be deducted from the amount of compensation so payable. He said that it was quite clear that unless the employer were protected against the costs which he would incur for actions brought for alleged wilful misconduct on his part every case would be brought into court and nothing would be referred to arbitration. He therefore proposed to insert after the words last inserted:— Provided that where in any such action it is determined that the compensation ought to have been claimed under this Act, the costs incurred in defending such action shall be deducted from the amount of compensation so payable.


"Agreed, agreed!"


said he must call attention to the very serious consequences of the acceptance of this Amendment. The Amendment upon the Paper was altogether unreasonable as it empowered the Court in the exercise of its discretion to deduct the costs from the damages. The power would never be exercised unless the action were unreasonable.


said that what the Government agreed to was the Amendment as it appeared on the paper.


said that what had been moved was not the Amendment upon the paper. Were they to understand the word was "shall?"




Does the right hon. Gentleman accept the alteration?


I prefer the Amendment as I moved it. [A. laugh.]


Perhaps the best way would be to move to amend the Amendment by omitting the word "shall" in order to insert the word "may." [Laughter.] I greatly prefer the first Amendment of my right hon. Friend, which I think is perfectly reasonable. It would be improper to insist that in every case, whatever the circumstances may he, the whole of the costs shall he deducted. That might involve considerable hardship.


Then I will agree to "may." [Laughter.]

Word ''may" substituted fur the "shall" Amendment, as thus amended, agreed to.

MR. H. J. TENNANT (Berwickshire) moved to add, after the words last inserted:— Provided that nothing in this Act shall affect the right of any of her Majesty's Inspectors of Factories to recover penalties Under Section 82 of 41 and 42 Viet., c. 16, and Acts amending the same, and that the recovery of such penalties shall not be taken into account in estimating compensation under this Act. He said that the Factory and Workshop Act, 1878, enacted that if any person was killed or suffered bodily injury in consequence of neglect of the occupier to fence machinery, etc., the occupier of the factory should be liable to a fine not exceeding £100, which might be applied by the Secretary of State for the benefit of the injured person or his family, as the Secretary of State might determine. He believed that in the past the factory inspector had instituted proceedings against the occupier of the factory, and had obtained damages, but that when the injured person desired to take proceedings under the Act of 1880 he had been informed he was not able to do so, owing to damages having been already secured under another statute. He could not help thinking the House would agree it would be a great misfortune for a man who had received serious injury, and on whose behalf the Inspector of Factories had obtained a small amount of compensation, to he informed that he could not get compensation under this Bill. In case the Attorney General said that any proceedings under the Factory Acts were not civil proceedings, but criminal, he might state that the Factory and Workshops Act of 1895 alludes to these damages which are called fines in the Act of 1878, and provides that the workman may take the money as compensation.


said if he caught the statement of the hon. Gentleman aright, the money recovered was to be applied to the benefit of the injured person, it was not to be merely a punishment of the employer, but was to be applied to the benefit of the workman.


It may be.


said it was perfectly plain that in its integrity the Government could not adopt such a proposal. It would be an alternative method of compensation. Of course it was intended that the compensation provided by the Bill should be a full discharge. ["Hear, hear!"] He confessed he thought the hon. Member was referring to penalties intended to enforce observance of certain provisions of the Act, which would be a very different thing. I hit it was impossible to sanction any proceedings, civil or criminal, to provide for taking money out of the pocket of the employer which would be additional compensation to that recoverable under the Act.


said it was necessary to be clear as to what the effect of the Bill would be. The primary object of the section, as he had always understood, was to secure by legal provision the observance on the part of the employer of certain enactments. A fine not exceeding £100 was recoverable; but there was a discretionary power vested in the Secretary of State to apply the amount of the fine, in whole or in part, to the benefit of the injured person. He could quite understand the point of the Attorney General, that where that power was exercised it might be right to take into account the money so applied as part of the compensation payable by the employer. He could understand it, but he did not agree with it. He thought that in all such legislation they ought to preserve a distinction between the employer who had neglected his duty and the employer who had not; and where an Act of Parliament required a statutory duty, and imposed a penalty which might or might not be applied for the benefit of the workman, the employer who was shown to be guilty of negligence and incurred the penalty ought not to be entitled to claim the benefit of it as a set-off against the compensation to which the workman was entitled. It was clear that this Act ought not to affect the power of the Inspectors of Factories to make defaulting employers pay these penalties, and he should like to have an assurance from the Attorney General to that effect.


said the words of the Attorney General had left the House in doubt as to how this provision as to penalties would really apply in future where claims for compensation were made under this Bill. He did think that employers of labour in factories were entitled to ask whether or not compensation under the Bill was to be given plus the £100 fine. ["Hear, hear!"] He gathered from the remarks of the right hon. Gentleman the Member for East Fife that he was not quite up to date. He suggested that there should be some punishment for the negligent employer. It seemed to him that they had got beyond all that, for they had made up their minds that the employer was to he punished in any case whether he was negligent or not. They ought to have an assurance, he thought, that the employer was not to be subject to a double charge.


said he thought if there was any doubt it might be met by an amendment of the Amendment. As framed, the Amendment was certainly in a directly opposite sense to the intention of its mover. The difference at all events was appreciated by his right hon. Friend opposite, who admitted that there might be an argument against double compensation. Certainly the Government felt that argument so strongly that they wished to make it perfectly clear that double compensation was not to be allowed. ["Hear, hear!"] On the other hand they quite agreed with the right hon. Gentleman that nothing in the Bill ought to affect the right of the State Inspectors of Factories to recover penalties for breaches of the law and if it was necessary he should suggest that they amend the Amendment in this way. Take the Amendment as far as the words— Nothing in the Act shall affect the right of the Inspectors of Factories to recover penalties, and then go on to say— if such penalties, or any part thereof are applied for the benefit of any person injured, such amounts shall be taken into account in estimating the compensation. He moved to amend the proposed Amendment, by leaving out from the word "same," to the end thereof, to add instead thereof the words— but if such penalties, or any part thereof, are applied for or to the benefit of any person injured, such amount shall be taken into account in estimating the amount of compensation under this Act. Debate adjourned till To-morrow.