§ "Where the injury was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof the workman may, at his option, proceed either at law against that person to recover damages or against his employer for compensation under this Act, but not against both, and if compensation be paid under this Act the employer shall be entitled to be indemnified by the said other person."
§ MR. LAWSON WALTON (Leeds, S.)supported the clause as being a distinct improvement on the original clause.
§ MR. C. A. CRIPPS (Gloucester, Stroud)rose to move the rejection of the clause on the ground that the principle involved in it was one which ought not to be adopted. The principle was that it was not right to make an employer liable for the act of a stranger over whom he had no control, either direct or indirect. It would be a novel principle to incorporate not only in a Bill of this kind, but in respect of a liability between citizen and citizen. The Home Secretary pointed out that if this clause was adopted he would have to amend the form of Clause 1; but that remark raised the question whether the House of Commons was to introduce for the first time a principle hitherto unknown in English law, and utterly inconsistent with justice. If the Committee were discussing the matter, not as between employer and employed, but as between citizen and citizen, he did not believe that any hon. Member would suggest that it would be consonant with natural justice to make one man liable for the wrong brought about by another, and in respect of whose act the employer had no control either direct or indirect. It was suggested that the point might be met by the principle of insurance. The answer to that was that they could not remedy an injustice which was created by making an employer insure in respect of a liability under which he ought never to have been placed. In the case of the smaller employer it was doubtful whether the principle of insurance would apply at all. Take the case of a small employer who employed workmen almost as well-off as himself, and assume that a workman was injured by the act of some stranger for whom the employer was not liable directly or indirectly. If the workman was injured, or if death was caused, the full responsibility for the act of the stranger would, in the first case, be transferred to the shoulders of the employer. What could be more unjust than the case of a small employer who was being ruined by a liability of that kind in order that they might give this special form of remedy to the employé against his employer? If a workman had a liability to impose on any one let him impose it on the person who had caused the injury. Suppose, again, the man who had caused the injury was a mere man of straw, or a man against whom the 1129 employer could not proceed. The Committee threw the responsibility on the employer; they made one citizen responsible for the act of another; and he challenged any hon. Member to show an instance where up to this moment such a principle had been adopted. The Committee had been told that at certain stages of this Bill they had to throw logic on one side and justice was to be disregarded. If they attempted to bury the phantom of logic he thought it would arise in the form of a convincing deity before long. He heard the Colonial Secretary say that justice was to be disregarded because the Committee were dealing with a question of expediency. But in matters of legislation they could not disregard justice except on one principle—and that was when they sacrificed a less justice in order to obtain a greater; and if on any other principle they sacrificed logic and justice they obtained a cynical opportunism which ought not to be taken as the basis of any legislation. [Cheers.]
§ THE ATTORNEY GENERAL (Sir RICHARD WEBSTER,) Isle of Wightsaid that his hon. and learned Friend had misunderstood the point of the Amendment. The House had decided by Clause I. that there should be compensation for injury by accident; and then, that where such injury should he caused by the act of a stranger a workman might have the option ion of suing either at law or against his employer for compensation. That having been the result of the decision of the House he had undertaken to put the matter in a better form, and the whole effect of the clause against which such strong language had been used was to give the indemnity over to the employer against the third person.
§ SIR ROBERT REID (Dumfries Burghs)said that it was obviously the intention of some hon. Gentlemen to discuss the principle underlying the Bill. But that was not the most convenient time to select for the purpose. The time to select was when the first clause had to be dealt with. This clause gave the employer an indemnity over and against any stranger who might have caused an accident.
MR. JAMES LOWTHER (Kent, Thanet)could not agree with the hon. and learned Gentleman that this was not the proper occasion to discuss a question of principle. He observed that those who 1130 supported the Bill always thought that criticism ought to be deferred to a more convenient season, though it was seldom pointed out when that season should arrive. It was urged that criticism on this clause ought to be reserved until the Committee was asked to discuss another clause of the Bill; but if that advice were taken hon. Members would then be told that the Committee already affirmed the principle, and that it was too late to reopen the question. The Attorney General upbraided his hon. and learned Friend for speaking at great length; but he thought that his hon. Friend had condensed his remarks within very narrow compass. The House was now a Court of Appeal. It was their duty to review the decisions of the Committee, and he hoped they would reverse a great deal of what the Committee did, for they had played fast and loose with the fundamental principles which had hitherto guided the legislation of this country. The House was asked to agree that a person was to be responsible for the acts of individuals over whom he had no control whatever. He could conceive of nothing more strenuously unjust. It was all very well to be benevolent and charitable at other people's expense; but he hoped the House would bear in mind that a clause such as this committed them to the enunciation of a doctrine fraught with danger of injustice to all persons concerned. They might be told it would affect only one class—the employers. He ventured to say the workmen themselves would have cause to find the greatest fault with legislation that was likely to drive capital and trade out of the country. The principle contained in this clause appeared to him to be, if possible, more unjust than a great deal already in the Bill; and as there would be no opportunity of eliminating it, he hoped the right hon. anal learned Gentleman would give ear to the appeals which had been made to the House's sense of. justice. He did not approach the subject with any prejudice. He had always thought that compensation should be paid from smite quarter to those upon whom misfortune fell in the course of their employment. But he could not see why the whole burden of what was really a national obligation should fall on one class. He protested altogether against such legislation. He had hoped that 1131 some scheme would be found under which the burden should he more fairly distributed over the whole community; and he trusted the Government would at this stage of the Bill devise some method of avoiding what seemed to him to be rank injustice.
§ MR. J. WILSON (Durham, Mid)wished to say a word as to the meaning of the proposed substitutionary clause. The words of the first clause, to which the Attorney General had referred were very plain, and defined clearly that it was against the stranger that the employer would have to go for an indemnity. The clause that was to be substituted was much broader in character. He understood the definition of "a stranger" in the first clause to be some one altogether out of the employment. The new clause said that "where the injury was caused under circumstances creating legal liability in some person other than the employer," and he wanted a definition of "other persons." He took it that the words meant any person either in the same employ or outside it. He would put a case to `the Attorney General or any other hon. Gentleman on the Front Bench. Suppose a foreman, or any other person in the same employment, should be the cause of injury to a workman; as he read the clause, the employer would have an indemnity against that other person. A great deal had been said about the workman getting benefit from the Bill. He failed to see how he was going to get much benefit if Amendments of this sort were introduced. Many, if not most of the Amendments already inserted into the Bill had been, in his opinion, to the detriment of the workman. He wanted to know, therefore, whether under this clause an employer would be entitled to get an indemnity for any man in his employ who caused injury to another. Not only for the working of the Bill, if passed into an Act, but also to justify the acceptance of this clause, they ought to have some statement from those in charge of the Bill as to what "other person" would include. In his opinion the terms of the Bill as it stood were better, for they knew that it was against the stranger only that the employer could proceed. Perhaps the Attorney General would tell them that "other person" meant a stranger outside 1132 the employment, but they ought to know clearly what was meant.
§ MR. CHARLES RENSHAW (Renfrew, W.)reminded the right hon. Gentleman and the House that, if he remembered correctly, the Amendment giving the employer the right of claiming indemnity was put into the Bill in the Committee stage without being even on the Paper.
§ THE ATTORNEY GENERALsaid the hon. Member was in error.
§ *MR. RENSHAWsaid at all events there was very little discussion upon it. He would remind the hon. Gentleman that the Committee stage was taken very quickly after the Second Reading. Members had had an opportunity of meeting their constituents between Committee and Report on the provisions of the Bill. He should like to say with regard to this point that the question raised in the clause, or in Clause I., when it was reached, had been unanimously disapproved at a large meeting of employers in the County of Renfrew. They regarded it as going far beyond the original scope and intention of the Bill. Speaking as an employer, it seemed to him that they were being placed in a very unfair position, even though the term "stranger" was not used, but he was introduced under the alias of "some person other than the employer." Grave as was the burden thrown on the employer by the provision originally introduced, it would be materially increased by this clause, and he hoped the Government would not pass it. The hon. Member for Dumfries Burghs spoke as if the clause dealt only with the act of a foreman. It was not, he apprehended, the act of any foreman that employers generally were anxious about under this clause—it was the interference of absolutely outside individuals; and it was because they protested against being made responsible for the actions of persons in whom they had no interest, and over whom they had no control, that he should vote against the insertion of the clause.
§ SIR JAMES JOICEY (Durham, Chester-le-Street)wished to say one word before the right hon. Gentleman replied, because the Bill had been rushed through the House and many hon. Members had but a vague idea as to its effect. The Bill contained a principle which, as a hon. and learned Gentleman opposite had said, had not hitherto been recognised in any of our legislation. Take a 1133 case or two to show what would be the effect of this Amendment. A workman in the course of his employment had to go a journey by railway, and the man was injured. He gathered from this clause that the Workman would have the right to claim compensation from his employer for an accident caused by a railway company, over which, of course, he had no control whatever.
§ THE ATTORNEY GENERALOh, no.
§ Sir J. JOICEYsaid he would like the House to be satisfied on that point. They had been led to understand that the Bill was to do away with litigation and law expenses; but, assuming that, he was right in his view of the clause, the employer, after appearing before the arbitrator, would have to sue the railway company, and there would be more litigation and more costs. Take another case. An employer found it, necessary to send a workman from one pant of London to another; and in crossing Piccadilly the man was knocked down by an omnibus or cart. He gathered from this clause that the workman would have the right first of going against his employer for an accident with which his employer had nothing to do, and the employer would have to take his chance of whether the owner of the vehicle was a man of means or not. He should be glad to be satisfied by the right hon. Gentleman as to whether the cases he had mentioned would be comprised in the clause; because if they were, there was, in his judgment, something in the principle here laid down that the country ought to be informed of before the House passed such legislation as this. They were making such departure that nobody knew what it would lead to.
§ THE SECRETARY OF STATE FOR THE COLONIES (Mr. J. CHAMBERLAIN,) Birmingham, W.said he would not discuss the whole principle of the Bill on this clause. The opposition to the clause was largely due to misunderstanding. The two cases the hon. Baronet opposite had given would not involve the employer in liability. In reply to his hon. Friend behind him, he might make the same remark. He did not see what ground he had for fear. According to the Bill, the accidents to workmen, for which the employer would be liable, must arise "in the course of his employment or arise out of his employment." If a man in the 1134 employ of a railway company met with an accident, due to a defect in machinery, owing to the negligence of the person supplying the machine, the clause gave the workman the option of going against the person who supplied the machine instead of the railway company, and gave the company a remainder over against the person who supplied the machine. This diminished the employer's liability rather than increased it. If a carpenter, in works subject to the Bill, ran over a workman, the workman in that case would have the option of two remedies. Whether the clause was right or wrong, it was not open to the objection that had been raised against it. The whole object of the Government was to make clear and improve the phraseology of an Amendment which hall been accepted without opposition from any quarter.
§ MR. STUART-WORTLEY (Sheffield, Hallam)contended that the words of the clause did not create any liability which was not created by the words of the Bill. They were words of procedure, which placed employers in a better position than otherwise. They did not apply to any cases but those arising in the course of or out of employment, in which alone the workman was entitled to compensation. The words created no new liability, and in the interets of the employer it would be dangerous to omit them from the Bill.
§ *SIR ALFRED HICKMAN (Wolverhampton, W.)said that if a workman brought an action against a third party, from whom he had received injury while following his employment, the latter might plead contributory negligence. But the man's employer could not, when sued, plead this, however justified, and that was an unfair position for the employer to be placed in.
§ MR. H. H. ASQUITH (Fife, E.)agreed with the hon. and learned Member for Sheffield that this clause created no new liability, though it might enlarge or extend what was or would be enacted when they came to Clause 1. He himself was in favour of the clause for several reasons. He could see nothing more unjust in making an employer liable for the act of a stranger than in making him liable for "the act of God." Under the Bill he was clearly liable for the latter if the injury arose out of or in the course of the workman's employment. It was 1135 clear that the cases put by the hon. Member for Durham would fall within the scope of the Bill.
§ THE ATTORNEY GENERALThe point has been foreseen, and there are Amendments on the Paper expressly to include these cases.
§ MR. ASQUITHsaid he had not observed them, though he had studied the Amendments. It was quite clear under the Bill that if a commercial traveller sustained personal injury on the railway while soliciting orders for his firm the latter were liable to pay compensation. The right hon. Member for Thanet said the Bill was founded on no doctrine of moral responsibility whatever. [Cheers.] Moral responsibility had nothing whatever to do with it. [Renewed cheers.] The Secretary for the Colonies had said so over and over again. The theory of the Bill was not that the employer should be liable in some respect in which he was blameworthy, but that what was called "the trade" should be made liable as one of its necessary and incidental expenses for all injuries sustained. On whom that would fall was a question about which they might argue. The clause was necessary for the protection of the employer, and to make clear and definite the rights of the workman. If the Bill were left without the clause, it might be argued that the workman, being given this right of compensation, had forfeited the right he would have had against a third person. But if the clause was not passed, the employer, who was bound to pay compensation to his workman for the wrongful act of another, could not sue the latter for indemnity.
§ *SIR FRANCIS POWELL (Wigan)said employers of labour entertained grave apprehension about this clause. It was to his mind unjust that any person should be made responsible for the act of another person of whom he might know nothing whatever, and over whom in many cases he had no control whatever. Natural justice revolted against it. He believed that insurance would be impossible except at such high rates as would impose a most unjust burden upon trade. He hoped the Government would reconsider their course.
§ MR. REGINALD McKENNA (Monmouth, N.)submitted that nine-tenths of the discussion on this clause had not been relevant, as the words "where the injury 1136 was caused under circumstances creating a legal liability" were governed by the preceding words in Clause 1, where a legal liability was defined. The words in the first clause to which he referred were,—
If in any employment to which this Act applies personal injury arising out of and in the course of the employment is caused to a workman,and the discussion they had listened to would be relevant on the point as to whether those words were a sufficient definition of an accident in order to enable a workman to get compensation. It was not, however, relevant, he submitted, to this particular clause, which simply gave a relief to the employer.
MR. GIBSON BOWLES (Lynn Regis)said the intention of this clause was on the introduction of this Measure distinctly repudiated by the Secretary for the Colonies. Did the right hon. Gentleman deny that?
§ MR. CHAMBERLAINsaid their view was that it was in the original Bill; this clause did not make it any different, but only made clearer what was intended.
MR. GIBSON BOWLESsaid the right hon. Gentleman, on the introduction of the Bill, said they were dealing, not with accidents caused by negligence, but with inevitable accident or misfortune. Now this clause dealt solely with accidents caused either by guilt or negligence. It stood to reason, therefore, that this clause was never thought of when the Bill was introduced, but was now brought forward owing to the irresistible pressure which had been exercised. It seemed to him that the right hon. Member for East Fife had given a diametrically different construction of the clause to that put upon it by the Colonial Secretary and the Attorney General, and he thought it was absolutely imperative for Members on that side who objected to the clause to divide upon it. They had been surprised to see the Amendments at this stage put down in the name of the Home Secretary, as it was the Secretary for the Colonies who took charge of the Bill in the Committee stage. The right hon. Gentleman, moreover, had put down 92 Amendments, which together were greater in length than the whole of the original Bill, including the Schedule.
§ *MR. SPEAKEROrder, order; The hon. Member is not in order in discussing that.
MR. GIBSON BOWLESNo, Sir; I was commenting on the inconvenience of having the Amendment of one Minister explained by another. [Laughter.] He thought they ought to have some further explanation from the originator of this clause. He cited the case of a workman who, while travelling on a railway in the service of his employer, met with an accident. He denied that any subsequent Amendments upon the Paper modified this clause—they left the clause exactly as it stood. This clause showed for the first time the injustice, in all its naked proportions, that would be inflected by some of the provisions of this Bill. It seemed that logic, justice, and responsibility had gone. It had been shown that this clause would impose a liability on the employer unknown to English law, and he hoped that every Member who believed in the principle which was the bed-rock of the Tory Party—that honestly earned property should he safeguarded—would vote against this clause.
§ MR. W. ALLAN (Gateshead)asked why the words "or firm" were not inserted after the words "in some person?" There were many cases where a workman was injured by the negligence of a man. and could not discover who the man was, although he would knew by what firm he was employed. He instanced the case of an engineer who was employed in a shipyard on the outside of a vessel, and a man up above let fall upon him a rivet or hammer, by which he was killed or seriously injured. Such cases were of common occurrence, and the injured man might often be Unable to discover who was the actual man by whose negligence he was injured. He thought the clause needed Amendment so as to cover firms employing "other persons."
§ *SIR WILLIAM HOULDSWORTH (Manchester, N.W.)thought the House was entitled to a little more information in regard to the effect of the clause before they disposed of it. He was a loyal supporter of the Bill, but if the interpretation of the clause given by the right hon. Gentleman the Member for East Fife was correct, then none of the employers of the country had any adequate conception of the enormous scope and 1138 application of the Bill. It seemed that not only were employers to be responsible for all accidents that took place in the course of their employment, but they were to be responsible for a number of accidents under circumstances that none of them ever supposed would be included within the scope of the Measure. He thought the House was entitled to information from those in charge of the Bill as to whether the interpretation of the right hon. Gentleman opposite was correct.
§ THE ATTORNEY GENERALsaid he could only speak again by leave of the House. He desired to make perfectly plain that the clause did not increase the liability of employers at all. ["Hear, hear!"] If anything it was in favour of employers. ["Hear, hear!"] Take the case of an engine which had been so badly put together that while working in a mill the fly-wheel went to pieces and injured 20 persons. That being an accident which happened in the course of employment there would he compensation under the Bill and the compensation would he payable by the employer of the workmen—that was the mill-owner; but as the accident was really occasioned by the engine maker the object of the clause was to give to the employer a remedy against him. There was another case—the case of an employer who sent his carter to the railway station in order to unload goods from trucks, and a crane which was badly managed led to an accident in which the leg of a railway porter and the leg of the man who was sent with the cart were broken. There would be no remedy by the carter against his employer for that accident, but he would have a remedy against the railway company for negligence, and, of course, the railway porter would also have a remedy against the railway company as he was in their employment.
§ MR. SYDNEY GEDGE (Walsall)put the case of a man sent on an errand by his employer, and run over at the level crossing, through his own wilful negligence. The defence of contributory negligence would be good for the railway company against any claim by the injured man. But would the employer he able to plead the same defence?
§ THE ATTORNEY GENERALThe employer would not be liable at all.
§ MR. GEDGEsaid that the point was likely to lead to litigation, and the House was entitled to an authoritative declaration on the point. This clause would increase the liability of the employer far beyond anything contemplated when the Bill was read a Second time. Nothing could more increase litigation than a provision giving the workman the choice of two kinds of action, one of them involving another action. It was no answer to say that the employer's liability would be covered by insurance; because in the long run insurance must be more costly than damages. Insurance only distributed the payment; and the insurance company had to make the profit. Since the Second Reading he had consulted his constituents, and he found that every employer, Conservative and Radical alike, was diametrically opposed to this Bill and to any extension of it.
MR. PARKER SMITH (Lanarkshire, Partick)said it was a surprise to find this clause defended on the ground that it was necessary, for the protection of the employer. It had been conceived on the ether side in quite a different spirit. At present there was a provision in the Bill to the effect that the contractor was liable for his own men; but the Home Secretary had an Amendment on the Paper to omit that provision, and that fact gave much more significance to the clause under discussion. He entirely accepted the principle of this Bill, but the present point could only be justified by regarding the Measure as an insurance scheme carried out to the fullest extent. But the employers had not yet been convinced that the charge which this Bill would impose was a charge which could justly be passed on to the public; and they would feel it as a great injustice if their liability were extended to the case where the workman was injured by the act or neglect of a stranger, over whom the employer had no control. The Government would be doing an ill-service to the Bill if they insisted on a provision which, on their own showing was of no particular value to the workman, and which raised the greatest feeling of resentment among the employers.
§ MR. J. M. MACLEAN (Cardiff)said that the explanation given by the Attorney General did not meet the case put by the hon. Member for King's 1140 Lynn—that of the workman of one employer injured through the fault of the workman of another employer. Would the employer of the injured man have the right of action against the other man's employer? The right hon. Member for Fife had not defended this clause on the ground that it was necessary for the employer's protection. The right hon. Gentleman's argument was that if the employer was made responsible for the act of God, why not also for the act of a stranger? That argument would not commend itself to the employers in those trades affected by the Bill.
§ MR. R. B. HALDANE (Haddingtonshire)said that hon. Gentlemen on the Opposition side of the House were quite clear that the Amendment was a limiting Amendment in the interests of the employer. Under the Bill the employer was liable for injury to his workman, whether the employer was to blame for the injury or not. This clause did not extend this principle. It only proposed to give a remedy against the stranger, for whose act the employer was already liable under the Bill. As the clause originally stood, the remedy given to the employer was only against the stranger, but now, as amended by the Government, it was given against everybody, including the foreman and fellow workman. Therefore, the employer was given something which he did not possess before. He consoled with the right hon. Gentlemen in charge of the Bill as good men struggling with adversity. The Debate on this clause had gone, not against small points, but against the whole principle of the Bill.
§ Question put, "That the Clause be read a Second time."
§ The House divided:—Ayes, 351; Noes, 43.—(Division List, No. 266).
§ Clause read a Second time.
§ MR. GEDGEsaid that he had to move a slight addition to the clause in order that the remedy which was afforded should not be an illusory one.
§ SIR R. REIDdesired to move a verbal Amendment in the clause to carry out the purpose which had been indicated He moved to leave out the word "not" 1141 in order to insert the words "may not recover."
MR. GIBSON BOWLESsaid it seemed to him that this was a very considerable alteration to make in the clause. It allowed a man to proceed against both parties, and opened the possibility of a new course of procedure to the workman by providing him with two courses.
§ Sin R. REIDsaid he would not press the Amendment if it was not looked upon as a verbal one.
§ Amendment, by leave, withdrawn.
§
MR. GEDGE moved to add at the end of the clause,—
The employer may in any such action avail himself of any defence which such person might avail himself.
He pointed out that unless words like these were added, the employer might be found liable for the accident, and that when he tried to obtain his remedy against the real author who had been negligent he might entirely fail, because he did not give evidence of contributory negligence.
§ THE ATTORNEY GENERALpointed out in reply that in the action the employer would be the plaintiff and not the defendant, and thus the words "avail himself of" would not apply. The scheme of the Bill was that the workman should bring his action against the employer, and that then the employer should bring his action against the third person.
§ MR. VICARY GIBBS (Herts, St. Albans)asked whether the House was to understand that where a person had been injured by a stranger, and where the servant had contributed by his own negigence, the employer was to be debarred from setting up the defence in the action? This was a point which deserved the careful consideration of the Government. Even when they had abandoned moral responsibility and the claims of justice, there came a point when equity would arouse even the House of Commons to resentment; and this point was reached when they allowed the man who caused the accident to plead a defence against the employer which the employer could not plead against the man who caused the accident.
MR. JAMES LOWTHERpressed for a word of explanation from the Government on a point felt to be of great importance.
§ MR. W. E. M. TOMLINSON (Preston)asked whether it was intended by the words to give a complete indemnity to the employer in this case, or was a liability put upon him which he would not have apart from these words? Was the liability of the person who originally caused the accident to be extended by these words? Supposing the employer tried to get rid of the liability by insurance, would the person who caused the injury be entitled to say in advance against the action by the employer that the employer was insured?
§ SIR A. FORWOODrepeated the concrete case put by the hon. Member for Gateshead to the Government. An employer sent one of his engineers to work at the boring out of the post of a ship. A man dropped a hammer upon the engineer, and the engineer's employer would have to compensate the man. Would the employer of the engineer have a right of action against the employer of the man who dropped the hammer?
MR. ASQITHconsidered it was perfectly clear in that case that the workman would have a right to claim compensation from the employer. In the case put by the hon. Member for St. Albans the injured workman would have a right to claim compensation against his employer, but the employer would not have a right to be indemnified by either the workman who did the injury or the employer of the workman. The measure of liability imposed on the employer by this Bill was distinctly different from the liability which existed under common law or statute. This Amendment was a very good illustration.
MR. GIBSON BOWLESdid not think that the Attorney General had grappled with the case put before him. Was the employer not to have the same defence as the stranger himself? It seemed to be just that the employer should have the same defence.
§ SIR J. JOICEYsaid the intention was perfectly clear that by the Bill it was not intended to give the employer the same remedy against the stranger as the employé had against the employer. Supposing a man who had come from engineering works in London with a bolt 1143 in his pocket to do certain work should be run over by his own carelessness, and it was shown that he had contributed by his own negligence to the accident. By this Bill the employer would have to pay full compensation, but when he proceeded against the stranger it would be pleaded that the employé, not having used proper precautions, no case lay against the stranger.
§ MR. HAREY FOSTER (Suffolk, Lowestoft)asked whether no Member of the Government was going to rise to deal with the point? Was it to be left to the late Home Secretary to explain it? This indemnity was no real indemnity to the employer at all. It was going a long way in the direction of injustice to say that the employer was to be liable for the act of a stranger. The House was prepared to go that length, but the House was also told that the employer in his turn, though possessing a right of indemnity against the person who had brought about the accident, would not be able to plead contributory negligence. The stranger, on the other hand, would he able to plead contributory negligence against the action of the employé. If that be so, then the indemnity was clearly an illusory one.
§ MR. RENSHAWasked whether the Government would accept these words,—
Such other person shall not be allowed to avail himself of any defence which would not be open to the employer.[cheers.]
§ THE ATTORNEY GENERALsaid that he could not accept the words, because they would enlarge the liability of the person in circumstances contrary to the principle of the Bill. The principle of the Bill was that an employer against whom a claim was made by a workman should not be allowed to plead contributory negligence. It was part of the system which formed the scheme of the Bill, that for this purpose contributory negligence should not be pleaded. Now, it was sought to say that the liability which was put upon the employer should also be put upon the third person. That was plainly beyond the scope of the Bill. The special liability which it had been thought desirable to impose upon the employer was not one that ought to be imposed upon 1144 the third person in this roundabout way. The Government, therefore, must adhere to the principle of the Bill; and if a third person had any good defence to a claim brought against him, there would be no legal liability on him.
§ COLONEL DENNY (Kilmarnock Burghs)said that after the reply of the Attorney General it appeared to him that they would have to trust for legal guidance to the late Home Secretary—they were not going to get any on their own side of the House. It seemed that the liability put upon the employer was far greater than he had any means of remedying. It amounted to this—that while your workmen might come upon you under this Bill and bar you from pleading the doctrine of contributory negligence, you went into the fight with one hand tied behind your hack, because the third person could plead against you the doctrine which you are debarred from pleading against your workman. It showed the danger of accepting Amendments without sufficiently considering how far they went. Personally he was not opposed to the principle of the Bill, but he did insist in his capacity as an employer, that he should receive, at any rate, equitable treatment at the hands of the Government.
§ MR. GEDGEsaid that, after the unmistakable expression of the opinion of the House, he did not wish to press his Amendment.
§ Amendment, by leave, withdrawn.
§ MR. RENSHAWproposed to add to the clause the words—
Such other person shall not be allowed to avail himself of any defence which would not be open to the employer.He thought that in submitting these words to the consideration of hon. Members, he might fairly appeal to their sense of justice. It was monstrous that the employer should be put in the position which he understood, from what had fallen from the Attorney General and the late Home Secretary, he would be placed in if this Bill were placed in the Statute-book in the form proposed. He hoped their common sense of what was just to employers would prevent them from being placed in that false position.
§ THE ATTORNEY GENERALsaid that in again repeating that it was not possible for the Government to 'accept the Amendment, he only desired to make one observation. The hon. Member for Dumbarton, who was no longer in his place, had complained of the absence of legal assistance from members of the Government. He did not wish to say anything about himself, but he did not think, in view of what passed in Committee and of the assistance which Ministers endeavoured to give on legal points, that Members on their side of the House were in any way justified in such an observation. ["Hear, hear!"] With regard to this particular Amendment, he must again point out that it could not possibly be accepted, because by this Bill they were dealing with the liability of the employer and not with the liability of a third person. It might be right or wrong to say that when compensation was claimed under the Bill, the employer did not have the defence of contributory negligence. The hon. Gentleman did not propose an Amendment which would enable an employer to avail himself of that plea. He was only desirous that in a case in which there happened to be a remedy against a third person, this third person should not he allowed to plead the contributory negligence of the person injured. It was perfectly obvious that such an Amendment was not in accordance with the principle of the Bill. They had altered the law, rightly or wrongly, by saying that where compensation was claimed against an employer, the employer should not be allowed to plead the contributory negligence of the workman. It was not possible to go further and say that a third person who had nothing to do with the matter except that he was liable to an action should also have his right of defence cut down.
§ *MR. SPEAKERsaid the Amendment of the hon. Member for Renfrew seemed to him to be out of order, being outside the scope of the Bill. It was impossible to introduce in this Bill an Amendment to deprive a large class of persons, who were neither the employers nor the employed, of their common law rights.
§ Sin J. JOICEY, On a point of order, submitted that the Bill did put a liability on a third person—["No, no!"]—when it gave the employer the right to sue a 1146 third person, and the only thing they were seeking to do was to make it possible for the employer to recover the full amount of compensation he had to pay in consequence of that person's act.
*MR.SPEAKERsaid the workman might sue the third person, and the Bill only gave the employer the same right that the workman possessed. The Amendment was clearly out of order.
§ MR. LAWSON WALTON (Leeds, S.)said that in the original clause the employer, after compensating the workman, was entitled to recover in the name of the workman such damages as he could himself recover. Under this clause the employer was to have against the third person a right to an indemnity. Now the liability for indemnity thus cast upon the third person might be considerably larger than any right to damages which might be asserted and maintained by the workman. Surely it was not intended that the liability of the third person should be enlarged by the procedure provided in this Bill. If time workman were to elect to sue the third person, he might recover such damages as a jury might award. If he elected to go against his employer he would get compensation of a certain kind, according to a rather intricate schedule—it might be £1 a week for life. It could not be intended to cast upon the third person an obligation to indemnify the employer against his liability to give a pension for life. Clearly some words of limitation were needed, and he proposed to add to the clause, which he took it would now be adopted by the House, the following words:—"The employer shall be entitled to be indemnified by such other person to the extent of such damages and costs as the workman might have recovered against such other person by an independent action."
§ SIR MATTHEW WHITE RIDLEYsaid there had been no oversight in putting the words on the Paper. The clause was advisedly intended to cover the very special difficulty raised by his hon. and learned Friend and he was told by the right hon. and learned Gentleman, the Attorney General, that the case was amply met by the words on the Paper. He was not himself a lawyer, and he was bound to accept the Attorney General's assurance.
§ MR. R. B. HALDANEsaid the words on the Paper were:—"shall he entitled to be indemnified by the said other person." It came to this, that if a stranger driving a dogcart ran over a workman in the street, who was there in the course of his employment, the workman might obtain from his employer a pension of £1 a week; and the employer under this clause was entitled to recover as against the third person, who might have injured the workman through no fault of his own—the thing might be a simple accident. The employer was thus given a right against outside public far exceeding anything the workman could recover as damages in a court of law. Under the principles of the Bill it might be quite right to impose liability for this larger compensation upon the employer, but it was not intended that such an extended liability should fall upon the general public.
§ SIR R. REIDdid not agree with his hon. Friend. If a person by his neglect caused an accident in such a manner that he was now liable by law to pay compensation for, the compensation, awarded by whatever tribunal, would be fair and full. If that was the case, he could not see why the employer should not recover the damages and thus be indemnified. That was what was intended, and it was only just.
MR. GIBSON BOWLESsuggested that if a workman was entitled as against his employer to £500, but might have recovered from the other person £1,000, this Amendment would entitle the employer to get the £1,000 from the other person—and he thought he ought to have it.
§ MR. GEDGEsaid the proposal was that the employer should be indemnified for what he paid. There could be no question of profit or loss.
§ MR. LAWSON WALTONwithdrew his Amendment.
§ MR. HALDANE moved the following clause:—
- (1) Where, in any employment to which this Act applies, personal injury is caused to a workman by reason of the negligence of any person in the service of the workman's employer, the workman, or in case of death, his representatives. shall have the same right to compensation and remedies against the employer as if the workman had not been a workman of nor in the service of the employer, nor engaged in his work.
- (2) A workman shall not be deemed to have accepted any risk incident to his employment by reason only of his having entered upon or continued in the employment after he knew of the risk.
§ MR. CHAMBERLAINsaid he must confess he was unable to understand the object of this new clause, still less did he understand the object of the interesting speech which his hon. and learned Friend had made in support of it. His hon. and learned Friend had told the House the whole history of the doctrine of common employment from the beginning, with variations and incursions into Scottish jurisprudence, and although he thought the House was well acquainted with the subject, he should not have complained had it had any bearing whatever on the present Amendment. But the present clause proposed to abolish the doctrine of common employment, not universally—in that case there would leave been something in the argument of his hon. and learned Friend—but in any employment to which this Act applied. What was the case in the Bill in regard to any employment to which this Act applied? Why, the doctrine of common employment was abolished in every case of an employment to which this Act applied. ["Hear, hear!"] If an accident occurred through the negligence of a fellow-workman, the doctrine of common employment went to the wall and the workman was entitled to claim damages under the Bill. The only object of this clause must be to give him an alternative process, and to say that in the case, and only in the case in which an accident was due to the negligence of a fellow workman, the injured man was to have not only the opportunities which were given him under this Bill, but "the same right to compensation and remedies against the employer," and so on, as if the accident had occurred through the negligence of a stranger.
§ MR. HALDANEsaid there was one very large class of cases to which this applied; he thought the right hon. Gentleman had recently said that I hey were 25 per cent. of the total number of accidents. He referred to cases where a man received an injury, but was not disabled for a fortnight.
§ MR. CHAMBERLAINasked if the object of this clause was to give an opportunity of having an action for damages in the case of an accident which did not incapacitate him for work for more than a fortnight, and where that accident was due to the negligence of a fellow-workman.
§ MR. HALDANEassented.
§ MR. CHAMBERLAINsaid that class of cases certainly would not be anything like 25 per cent. What he had said was that the number of accidents which only incapacitated for less than a fortnight amounted to 25 per cent. of the total number of accidents, but they were not by any means all due to the negligence of fellow-workmen. Now that he understood exactly what the hon. and learned Gentleman said he would say that he must not ask them to overburden this Bill. He certainly did not believe that to do so at that time would be in the interests of the workmen; moreover, it would materially complicate what they desired to simplify, it would raise a new question continually, and would bring within the possibility of litigation all these cases of short accidents, which, after all, were hardly worthy of the attention of the Legislature, and were rather cases to be attended to by the friendly societies. It would raise such a crop of difficulties that they could not possibly undertake to deal with them. He hoped his hon. and learned Friend would show himself to be a friend of the Bill, and would understand the line they had definitely taken. They had gone as far as they thought they ought to, and were not prepared in any such way as this to increase the scope of the Measure. ["Hear, hear!"]
§ SIR J. JOICEYsaid the working classes of this country had for some time been anxious to have the doctrine of common employment abolished. He pointed out that this Bill did not apply to all the industries of the country.
§ MR. CHAMBERLAINsaid the hon. Baronet was speaking outside the Amendment.
§ SIR J. JOICEYsaid the working classes of this country had for some time been anxious to have the doctrine of common employment abolished. If they had put it to any audience of working men during the last election what was 1151 the chief thing they required in connection with employers' liability, he thought the answer would have been abolition of the doctrine of common employment. The Government had done something for the working classes which they had not asked for, but they refused to give them what they demanded by means of their representatives. He was surprised that the Government had not, at all events, made an attempt to deal with this important question. He knew that the right hon. Gentleman only alluded to one class of cases, namely, where the effect of an accident lasted only for two weeks. But this Bill did not extend to the whole of the industries of the country.
§ MR. CHAMBERLAINYou are outside the Amendment.
§ SIR J. JOICEYsaid the Government were not bringing forward any Amendment to deal with this question. [Cries of "Question!"] He wished to take this opportunity of raising the question. He hoped his hon. and learned Friend would not press the matter to a Division, because he did not think that that was an opportune time for dealing with the matter, but he could not but blame the Government for not attempting to carry out some of the pledges which were scattered broadcast at the time of the General Election.
§ MR. McKENNAsaid this Amendment would include amongst those persons whose act or fault the employer was responsible for the fellow-workman of the injured workman. In that sense he submitted it was a valuable Amendment, and a simple way of abolishing the doctrine of common employment. He was afraid the Amendment would not include accidents lasting under 14 days, but, so far as the first part of the Amendment was concerned, he thought the proposal was a very valuable one.
§ MR. COURTENAY WARNER (Stafford, Lichfield)hoped the Amendment would receive a little more consideration. The answer of the right hon. Gentleman had shown that he had not quite understood it.
§ MR. HENRY BROADHURST (Leicester)said the essential point in the creed of those engaged in this question was to take any and every opportunity of endeavouring to abolish this ridiculous fig- 1152 ment made by lawyers, known as the doctrine of common employment, which had never been enacted by that House.
§ SIR MATTHEW WHITE RIDLEYsaid he was not prepared to defend the doctrine of common employment. [Opposition cheers.] This Bill in no way defended that doctrine. Instead of putting the workman on the same level as a stranger, the Bill avowedly put him in a better position. The hon. and learned Gentleman who moved the Amendment suggested that they should make a declaration that it was desirable that common employment should be abolished. That would be inopportune, both in regard to workmen inside the Bill and workmen outside the Bill.
§ *MR. G. J. BUTCHER (York)said he agreed with everything his hon. and learned Friend the Member for Haddington had said as to the mischievous character of the doctrine of common employment. That doctrine was wrong in principle, and it had worked hardship in practice. But when his hon. and learned Friend threw the blame on the English Judges, he would remind him that the doctrine was an importation from America, and a very bad importation too. He could not, however, support the Amendment, because to the trades to which the Bill applied it would be of little advantage whatever, because the Bill provided compensation for all accidents without regard to the doctrine of common employment, while in regard to those trades to which the Bill did not apply, the Amendment would give no relief whatever from the hardships of the doctrine of common employment. That would be an unsatisfactory and piecemeal way of dealing with a great subject. If his hon. and learned Friend endeavoured by way of a separate Bill to remove the larger and more serious grievance of the working classes outside the Bill, he would give him his hearty support.
§ MR. G. W. WOLFF (Belfast, E.)said the object of the Bill, which had his complete approval, was to simplify all actions brought by workmen against their employers. The Amendment, if adopted, would tend to the confusion of matters, and, as practically the doctrine of common employment was abolished by the Bill, he hoped the Amendment would be rejected.
§ Motion made, and Question put, "That the Clause be read a Second time." The House divided:—Ayes, 107; Noes, 169.—(Division List, No. 267.)
§ *MR. SPEAKERruled that the other new clauses standing on the Paper—four in number—should properly he moved as Amendments to various clauses of the Bill.
§ Clause 1,—