§ At Eight fifteen—
§ Mr. SEXTON
I beg to move,That, in view of the confusion due to the existence of several Acts of Parliament dealing with compensation for injury to workmen, this House is of opinion that any Bill dealing with workmen's compensation introduced by the Government should contain provisions for codifying the Law.Before dealing with the subject matter of this Motion, may I be allowed to express my sincere regret that the Minister in charge of the Department is not here? The Motion deals with a most important part of the work of his Department, and I should have thought, at least, that, as a courtesy to myself and the House, the Minister at the head of the Department would have been here to listen to what I have to say.
§ The PARLIAMENTARY SECRETARY to the MINISTRY of TRANSPORT (Colonel Ashley)
He will be here in a very short time.
§ Mr. SEXTON
The changes in Departments are so sudden and mysterious in this House that one hardly recognises the new-comers. However, I am glad to know that the right hon. Gentleman will soon be here. [At this point Mr. Bridgeman entered the House.] I am glad to see that the right hon. Gentleman has now arrived, because it is to him that I wish to address what I have to say on this subject. I know that this Motion is very limited in character. I fully realise its limitations, and I will endeavour, as far as possible, to keep within them. I wish, however, to confess that I have a little difficulty in doing so. The Motion does not suggest any change in existing laws, but merely a short survey of existing laws dealing with compensation for injury to workmen. I have not any legal training, and, therefore, cannot be expected to go into the legal technicalities so well as a man who has had a legal training. My real object, however, in moving the Motion, is to call attention to the confusion which exists to-day, owing to the existence of several Acts of Parliament dealing with the one subject of compensation for 2673 injury to workmen. That is due to the fact that for the last 60 years the legal mind has been exercised—that Parliamentary draftsmen, Judges in our Courts, and the legal fraternity generally have been exercised—in raising obstacles in the path of industrial legislation. That is what has caused the present confusion. Not having a legally trained mind, I venture to appeal to you, Mr. Speaker, for the characteristic generosity and fatherly care of the Chair in helping lame dogs over legal stiles.
For the past 60 years the legal profession generally has taken a professional and legal, but, to my mind, somewhat fiendish, delight in obstructing the path of industrial legislation, and, therefore, I shall have to go back for many years, to the years 1836; but I shall not inflict upon the House any very lengthy dissertation upon the laws of that period. At that time the only appeal that an injured workman had was under the common law, which was surrounded with so many obstacles, such as contributory negligence and common employment, that it was impossible for the workman, even if he were financially assisted, to secure a verdict under the then common law. The poverty of the workmen, and the poverty, comparatively speaking, of trade organisations, also militated against the chances of securing compensation.
One of the worst features of the common law of that time was that it was only in case of personal injury to the man when he was living that any compensation was granted for injury. Later on, it is true, the introduction of Lord Campbell's Act gave the right to the dependants of workmen to bring an action for compensation for injury, subject to the action being brought on the same basis of evidence as if the man were alive, and again the doctrine of contributory negligence and common employment made it physically and financially impossible for even the dependants of a workman to secure compensation. From that time until 1880 there was no real constitutional right, apart from the common law, by which an injured workman could secure compensation. The Employers' Liability Act, 1880, was passed for the purpose of abolishing the doctrine of common employment and contributory negligence, but it miserably failed to do anything of the kind, and to-day, although so much 2674 modified, the law of contributory negligence and common employment is still prevalent and existing in the Employers' Liability Act, 1880.
Let me give three vital points in the Act. Not only has it carried over from the common law the doctrine of contributory negligence and common employment, but it has intensified the difficulty by the introduction of a new doctrine, in the form of the six weeks' notice of accident. I do not think I could give a better illustration—and I only give it because it is an illustration—than my own experience in this regard. It is typical of thousands of cases occurring under the same circumstances. I have stated my case in full before, not in this House, but outside it, but I will state it again for the benefit of the House, in the hope that it will influence right hon. and hon. Members opposite, and right hon. and hon. Members below the Gangway. It is only because I want to give a typical illustration that I deal with my own particular case. After the passing of the Employers' Liability Act, 1880, I myself was very seriously injured at the docks. I do not want to go into details, but the fact that I was unconscious for over six weeks disqualified me from entering an action, at least that was one of the pleas the employer put up. There were two other points on which I was disqualified. Notwithstanding that I was obeying the orders of the foremen for the time being, notwithstanding that the machinery with which I was working was defective, all these points were quoted against me as a reason why the employer should not be held liable. The foreman, although he was in a responsible position, was considered a fellow worker It was understood that that was wiped out by the Employers' Liability Act. It defined a man in the position of a foreman as:A person whose sole or principal duty is that of superintendence and who is not ordinarily engaged in manual labour.There is a distinction, not in the Act perhaps, but in judge-made law, beween a manual labourer and a manual worker. A clerical man is supposed to be a manual worker. A man who works physically is engaged in manual labour. This is one of the intricacies of the law which stands in the way of men securing justice and right or compensation for injury.
The tragedy of all this legislation is 2675 that the Legislature constructed its legislation on a wrong basis and under a wrong impression. They were legislating purely for men who are permanently employed, and the man who is casually employed, as I was, and the man who is a casual foreman, like the man who was over me, the men who are generally casually employed have all along, ever since the introduction of industrial legislation, been the legislative Ishmaelites of the industrial legislation of this House. I was working under a foreman. The foreman for the time being was a foreman for the day, but he was engaged in manual labour. I pointed out what I thought was a defect in the hook at the end of the rope and I was brutally told if I did not like to take the risk I could leave the job. Ordinary labourers, like I was at the time, took the risk, and that was cited, and very forcibly cited, as contributory negligence. These three points were quoted against me as a reason why I could not recover. At that time and up till very lately, they were not protected by any factory legislation. They had no protection till 1904 and all that any man of straw had to do was to invest two guineas with the Harbour Commission or the Harbour Board and seek a certificate of competency to be a stevedore and, by the rotten antiquated machinery, kill and maim men all the year round with impunity. I can quote case after case where this happened. One case in particular is typical of a man, who was an employer, who bought up all the rotten, decayed, condemned machinery, who subjected his workmen to all these risks. He was not only an employer but a householder. He built houses and compelled his workmen to live in them at a rent he placed upon them himself. He was the director of a loan company. He was the managing director of a funeral company who drew a dividend from the burial of his own victims, a sample of private enterprise that I make a present of to hon. Members opposite. This gentleman built a church out of the bricks of a local gaol, in front of which they used to hang people, and we assembled there every Sunday and joined in the Doxology.
Praise God from whom all blessings flow.In 1893 I and my hon. Friend the Member for North Salford (Mr. Tillett) and a few more who saw the urgent necessity of agitating for a change in the 2676 law, arranged a deputation to the right hon. Gentleman the Member for Paisley (Mr. Asquith) who was then Home Secretary. To give the devil his due—I say it without offence—he helped us in a very generous and sympathetic manner and we own him a debt that I at least recognise in its entirety. He introduced on our suggestion a Bill which abolished contributory negligence and contracting out. It was met with very great opposition but it eventually passed by a large majority. It went to another place where a wrecking Amendment was inserted and it had to be dropped in this House. Then we had the 1895 Factories Act which so far as it went was a very good Act. But a kind of protest was raised by vested interests in the shape of the shipowners and it was so amended that the word "ship" was left out and only docks, wharves and quays were included. In 1897 came the first Workmen's Compensation Act, which excluded common employment and contributory negligence. But it excluded more. It excluded half a million men who were previously included in the Employers Liability Act, for by the omission of the word "ship" in the Act of 1895, a ship was not a factory and a factory was not a ship. Only the side of the ship that was tied or moored to the quay was a factory, and it was only a factory while the machinery was being used for loading and discharging from the quay. The off-side of the ship where gangs of men who were working, the starboard or the port side as the case might be, was not included in the Act as a factory. The result was that a man working with slings over what was called the factory side of the ship got his finger crushed, while another man who was working a sling from the side that was not a factory lost his arm. The man who crushed his finger got compensation because he was working on the factory side of the ship, while the man who lost his arm got nothing. Again, a sling of pig iron collapsed into the hatch and killed a man, but as the man was working on the non-factory side of the ship, there was no compensation payable, although the sling of pig iron came from the factory side of the ship. In order to qualify a man for compensation, you would have to split him down the middle, and his left side would be the factory side and his right side would not be the factory side. 2677 Then we have the question of average earnings. It was understood, and I have a copy of a letter from the late Joseph Chamberlain on the subject, that the Workmen's Compensation Act based the compensation on 50 per cent. of the full average earnings of the workman 50 per cent. being the difference between the basis of full wages under the Employers' Liability Act. There are legal gentlemen in this House who know how this confusion occurred. When it came to the casual labourer, the reading of the Act is that the basis of compensation shall be fixed on the average earnings of the injured man in the employment in which he was injured. That meant that in many cases that I know of a man would work for two or three employers during the week. He earned a full week's wages, but on the last half-day of the sixth day he was injured, and instead of getting 50 per cent. of the full earnings, he got only 50 per cent of the half-day's employment with the firm where he was injured. The absurdity of that is, of course, obvious. I will give one further case. Two men were injured in putting down the hatches, and the learned Judge decided that as the day's work was over, the machinery of the ship was not being used, the ship was no longer a factory, and the putting and taking off of the hatches was not part of the process of loading and discharging. He likened it to the case of putting a cork in a bottle, on the ground that that was not part of the process of filling the bottle. How could you fill a bottle without taking the cork out, and how could you keep it full without putting the cork in?
These are some of the absurdities of the legislation of this House dealing with industrial compensation for injuries. The 1906 Act does to a very great extent remedy some of the evils of the old Act of 1896; but a section was lifted out of the Factory Act dealing with the inspection of buildings, which laid it down that the Act did not apply to buildings unless they were 30 feet high. As a result of that, the Law Lords for nearly two weeks sat deciding whether a well 30 feet deep was a building 30 feet high. The 1906 Act has removed many of these faults, but even now it carries great evils. The evil of contracting out is still there, as it is in the Employers' Liability Act. In many cases it is made a condition of employ- 2678 ment that the workmen shall contract out of the Act. I know that there are safeguards as to the registrar having to be satisfied that an equivalent system is created, but it is not always the case, far from it. The six weeks' notice is still maintained, and so is contracting out. It is a pernicious doctrine, a delusion and a snare. The man is insured and he is compelled to undergo a medical examination. The medical referee says that he is fit for light work, and the Judge reduces the compensation accordingly in many cases to 1d. per week. Anybody who knows anything about docks knows that there is no light work there; it is all donkey work. The result is that the man fails to fulfil his obligation under the order of the Court. Every Saturday when I go back to the North, a poor unfortunate fellow haunts my office. He is crippled for life, unable to do his ordinary employment, and he has no compensation, and no job, for nobody will employ him. These things occur under the existing law.
Inquiries have been made, but even the Report of the Holman Gregory Committee does not provide for compulsory insurance of employés. We have men of straw, contractors who take on a job who have no money, and who, if a man is injured in their employ, are not able to pay, or they go bankrupt. There is no protection for the man. Again, on the calculation of earnings, the onus is cast upon the man of proving what he has earned under half-a-dozen or a dozen different employers. The ordinary labourer is not a man whom you can ask to keep an account of all the employers by whom he has been employed during a period of 12 months or three years, as the case may be. There is another point of very great importance. If a man fails in an action under the Employers' Liability Act he is supposed to have another chance by being enabled to proceed under the lesser Act, the Workmen's Compensation Act. Very often he does, and the result in the majority of cases is that out of the compensation which is awarded to him he has to pay the cost of the previous action.
Why should there not be a codification as between these two Acts? Why should not the judge be able to advise the man not to spend the money of himself or his organisation in fighting the actions? Why cannot the point be decided at the one trial in the one place and at the 2679 one time? The result of the present state of affairs is that the proportion of cases taken under the bigger Act has gone down in 10 years from thousands of cases, in which some verdicts were secured, to about two per cent. and that the remaining 98 per cent. of the cases are taken under the Workmen's Compensation Act, which gives the lesser compensation to the injured workman. My object in bringing this before the House is that the Home Secretary should consider whether in future legislation of this character the legal ingenuity of the draftsman could not devise some scheme whereby all these difficulties would be abolished in connection with obtaining compensation for injury to workmen, and that human suffering may thus be modified to a considerable extent.
Above all I appeal to the right hon. Gentleman to give us a little more protection against accident. All the money in the world—and I say this because the Factory Acts are linked together with the Workmen's Compensation Act—will not compensate the widow and orphans for the loss of a breadwinner, nor compensate a man for the loss of a limb. Protection is worth millions of pounds of compensation, and if in any new Act more stringent measures are taken and more drastic penalties are inflicted for accidents which might be avoided it would be a very good thing. We had assurances last night from right hon. Gentlemen opposite and below the Gangway of sympathy for the working classes of this country. But I would suggest that right hon. Gentlemen should in this connection remember the vigorous biblical wordsWoe unto you scribes and Pharisees! hypocrites, for ye are like unto whited sepulchres, which indeed appear beautiful outward, but are within full of dead men's bones.
§ Mr. TILLETT
I beg to second the Motion.
It is a very prosaic, very ordinary sort of Motion, but it represents some of the greatest tragedies of industrial life. It is not so much an appeal for the bottom dog, but a claim for the bottom dog. We on these benches believe that we shall not be in the future always in the position of having to appeal, but that we shall be in the position to demand and exact fair play within the law for those who are, after 2680 all, the most valuable citizens of our Empire. With all the best will possible on behalf of our masters and employers, work in all the dangerous occupations is carried on under great difficulty. Beneath the claim which we are making to night is the claim of that mangled body which falls down a ship's hold or from a great height, the claim for the widow and the orphan of these martyrs, that their needs shall be recognised and their protection guaranteed by the law. I am not at all anxious to blame lawyers as such. I think as a class they are about equal to any other class, no better and no worse. But they are creatures of circumstances like the rest of us, and I do believe that if the conscience and the forensic learning of our greatest lawyers could be fathomed, the legal members of this country would be with us on these benches in demanding fair play within the law for those who toil and spin.
It may be that we are trespassing upon the occupation and the industry of the lawyers. I believe that the greater the efficiency the greater the economy, and the greater the economy in the preservation of human life the greater the righteousness of the country and the greater the safety of those who work for their living, who toil to increase the prosperity of our country. I have had considerably over 40 years' experience in dealing with Acts of Parliament which were misunderstood by the lawyers and misunderstood by the Judges. And it is not merely ridicule to say that the Judges did not know when a ship was a ship and when a well was a building or a well was a well. These technicalities cannot help us. I am not saying that the employers as a body are callous or brutal, but that a large number of employers appear to be indifferent to the realities of the situation and to the value of life to those who are employed by them.
Sometimes when an employer is a fair-minded man he has to work under an insurance company. The insurance company has no soul to save and no body to kick, and it utilises the law with such meticulous care and perfidious exactitude that many a Judge is perturbed and prevented from coming to a proper conclusion. I am not saying that all judge-made law is bad law. Sometimes our Judges have saved the laws from being made ridiculous—laws made by this House—but on the average judge-made 2681 law is a class-made law, and in industrial matters absolutely so in 75 per cent. of cases. I am not asking now that we shall alter the law in such a manner that all these grievances shall be redressed without Debate in this House, but I do claim that the co-ordination and codification of the law would simplify every judicial act and process of law. Every business house has to organise each of its departments. It learns from experience. Are our State Departments never to learn by experience? Must we always create such an agitation as to manifest the menace of the strike or other violent action?
We want this House to appreciate its own shortcomings. We as a Labour party are part and parcel of this House, but we are prepared to take our corner in a practical business way in so codifying the law that it shall be understood by the average intelligence. I am not blaming the Home Office. Really, I feel a great sympathy with the Home Office, for it cannot make head or tail of the cock-and-bull forms of the law with which it has to deal. It does not know where to take full command of its own duty, or upon what other Department it will trespass, and then in a moment of forgetfulness it may fail to perform some act that is essential in the process of the law. I suggest that if the Home Secretary had his way he would reorganise the Department which deals with the law in such a manner that the object and meaning of the law could be carried out. I could site 101 or 1,001 cases of similar accidents being treated in different ways, according to the mood of the judge. A judge might be a very good lawyer on some cases, but if his liver is not in good form his understanding may be in bad form, and he may not always have that touch of human sympathy which is necessary to those who require the aid of the law.
9.0 P M.
We are anxious to force upon the Government the work of codifying the law. I would not care if you spent £1,000,000 upon the lawyers, or an equal sum on the doctors. We are not here for economy, so far as the doctor and the lawyer are concerned. We want to give the lawyer and the doctor a fair and square chance, and I believe that they will do justice to their professions. We move too slowly. It took some of us 25 2682 years to get recognition of casual labour, and the more casual the labour the harder is the law upon it. The lives of men are concerned. Give us these Acts so fairly and squarely that no firm, no employer, no contractor, no insurance company, no lawyer guiding them, no directors, shall be able to escape from what is made plain to the plain man. That is all we ask. We ask it in a business spirit. In days gone by, as I have listened to judges, serene and profound and dignified beyond the measure of the law's dignity, pronounce judgment upon the claims of victims in a cold-blooded manner, I have wondered that I have not been hanged. Had it been known what I was thinking at the time I might have gone long since.
One feels for the Home Secretary in administering the law, for he cannot know what the law is. If he had six Attorney-Generals in succession, each one would give a version of his own. The lawyers do not know the law, the judges do not know, the insurance companies do not know, and the employers do not know. We may have learned diatribes on the glorious philanthropy of the law. We do not want philanthropy; we want proper protection. If the laws are intelligently constructed, intelligently codified, intelligently presented, numberless accidents and deaths by the hundred would be prevented. It is merely because the law is not definite and emphatic that the victims of accidents are robbed again and again. Hon. Gentlemen on the other side of the House have behind them their university education, their culture and their reading, and I am not here to cast aspersions upon them in that respect, but looking upon the law as it stands, I wonder that the governing classes are governing classes when they have been so supine, so callous, so indifferent to the essential primitive element, the sacredness of life. We are here, not to appeal, but to demand that the Government shall take this matter in hand. It is of the greatest possible importance. We ask for justice in the name of every child who has been robbed of its father and everyone who have been robbed of her breadwinner. We ask in the name of the dead, in the name of those who have by thousands gone to untimely ends, and in the name of the future that human lift; shall be held sacred. We want to preserve human life. That is the greatest economy which 2683 can be advocated in this House, and I demand of the Home Office and of this House that the law on this subject be codified so that it shall be understood of the people.
§ Mr. GREAVES-LORD
Although I cannot support a great many of the things which have been said in support of the Motion, I rise to support the principle of codifying the law relating to the liability of emloyers for accidents to their workpeople and so systematising it that we shall get an effective and clearly understood system. One's memory, however, goes back to a time when another branch of the law was codified in this country and one of the most skilled draftsmen of the day—Mr. Chalmers, as he then was— was engaged in codifying the law relating to very important matters. After very carefully drafting the Bill, which became an Act of Parliament, he was appointed a County Court Judge, and it was said of him—or he said so himself—that for some years after the Act was passed he spent the period between breakfast and the sitting of the Court each morning in reading the reports in the "Times" in order to find out what his code meant that particular morning. If we arc going to codify the law relating to this important subject we do not want to bring about a remunerative state of litigation so far as the legal profession is concerned, hut we do want to bring about a condition of affairs in which the ordinary man would be able to understand what the position really is. I do not think we are helped to that result by speeches of the class which we have had from the Mover and Seconder. The hon. Member for St. Helens (Mr. Sexton) has done more than most men to improve the lot of his fellow-men. We all know how sincerely he works from day to day to improve the lot of those among whom he lives and for whom he lives, and we value his experience on this important question of accidents to workmen. To-night he has wandered a little astray from the subject, and has failed to consider it in all its bearings. I admit there are undoubted blots on the law relating to accidents to workmen, but we should try to appreciate the real position and what the Government is being asked to deal with. The common law of this country is based upon performance of duty, and 2684 there have always been recognised by the common law certain definite and clear principles of duty on the part of the employer to his workpeople. With all deference to the hon. Member for St. Helens, the employer of whom he spoke who collected rotten plant and material was running a very grave risk. I am surprised that those with whom the hon. Member for St. Helens is able to consult from time to time, did not show him how to deal very effectively by way of damages with that particular employer. I think the hon. Member has failed to realise the true position. There is a duty by the employer to his workmen, and that duty is to provide proper plant and proper working systems.
§ Mr. SEXTON
May I be allowed to explain? We have no legal protection against an employer using defective machinery.
§ Mr. GREAVES-LORD
I venture to differ entirely from the hon. Member. So far as I know it has always been an accepted principle of the common law of this country that an employer was bound, at the risk of an action for damages—
§ Mr. GREAVES-LORD
Yes, damages which would make good the loss if he failed in his duty—he is, as I say, bound to provide reasonably safe plant for the purposes of his business; he is also bound by the common law to carry on his business by a reasonably safe system, and he was bound to employ reasonably competent servants. On the other hand, the workman himself was expected, and I hope will always be expected to take reasonable care of himself. [An HON. MEMBER: "He would get the sack if he did!"] No one on this side of the House interrupted hon. Gentlemen opposite, and I hope they will let me state my proposition without interruption. That is the position. There is a duty on each side to take reasonable care. Unfortunately for the history of industrial law in this country there was in the year 1837 a decision which is an entirely artificial excrescence on our common law. The case was one in which a butcher's boy was injured by reason of the fact that the trap in which he was driving about, delivering his master's meat, broke down through its bad condition. He brought an action 2685 against the employer, and it was held that he should have said, "I am not going again into that rotten cart," and inasmuch as he did not do so, he had himself voluntarily undertaken the risk. In other words, he had made it a part of the contract between himself and his employer that the rotten cart should be used. I venture to think, with all deference to those great lawyers who, in the course of time, followed a great many of the things which were said in that decision, that that decision was really an excrescence upon our common law and entirely foreign to the spirit of the common law of this country.
That case was followed by a series of other cases, until ultimately it was decided that it was presumed that when a man went into an employment he contracted with his employer to bear the risk of the negligence of his fellow-workmen, although, in fact, if any outsider had been injured by the negligence of the fellow-workmen, the employer would have been liable. That, again, was following out a trend of decision which had originated in the way that I have suggested and was, so far as my opinion goes, entirely foreign to the ordinary spirit of our law. Following that, just before the year 1880 an attempt was made to deal with the question of common employment. There are two things which are really bound up together —the doctrine of voluntarily undertaking the risk and, arising from that, the doctrine of common employment, which meant voluntarily undertaking the risk of your fellow-workmen's negligence. Just before 1880 a movement was made to deal with that doctrine, and I think it is well known that there was in fact prepared, in the year 1879, a Bill which proposed to abolish the whole doctrine of common employment. I do not think it went as far as proposing to abolish the doctrine of what is known as volenti non fit, voluntarily undertaking the risk, but a Committee sat, which reported against the Bill, and the result was the Employers' Liability Act of 1880.
Judging from what has subsequently happened, I doubt if there ever has been a more unfortunate piece of legislation than the Employers' Liability Act of 1880. It purported to do away with the doctrine of common employment; it did not purport to do away with voluntarily undertaking the risk, but it was in fact, if one may use 2686 such a term of an Act of Parliament, almost fraudulent, because it did not do anything such as it purported to do. It did away to some extent with the doctrine of common employment, but only to this extent, that from certain classes of workmen it took away the defence of common employment, so far as the person in common employment was in a position of superintendence or, in other words, delegated with the power and duty of the employer, but it went no further than that, and even what it did, it did in a very incomplete fashion. For example, the definition of "workman" was taken by reference from another Act of Parliament, the Employer and Workman Act, 1875, and a great deal of the difficulty arose from that. In fact, seamen are to-day excluded from the Employers' Liability Act, 1880, although the Section which excludes them from the definition "workman" in the Employer and Workman Act, 1875, has itself long since been repealed.
But quite apart from all that, although the remedy that it gave was one for negligence, it seriously limited the amount of damages that could be recovered. So far as damages can be recovered under the common law, damages must be such a sum of money as, without taking a fanciful view of it, but taking a business view, will compensate the man who is injured for the loss that he has sustained and is likely to sustain. The Employers' Liability Act was an inroad upon that principle. It limited the amount, and one interpretation of it has led to this. If an apprentice, for example, be injured in such a way as to deprive him of earning capacity for the rest of his life. Should his only remedy be under the Employers' Liability Act, he will get a mere pittance, probably of £20 or £30, namely, three years' wages as an apprentice, and that is supposed to compensate him in a case where there has, in fact, been real negligence on the part of the employer or of a person given superintendence as the delegate of the employer. That, in itself, was an extremely unfortunate result, but there were other unfortunate results.
Actions under the Act could be brought only in the County Court. There might be serious question as to whether there was not a common law claim, but you could 2687 not try the two together without limiting your common law claim to the jurisdiction of the County Court, which in those days was only £50, so that in a case where you might be entitled to £300 or £400 if you chose to use your alternate remedy at common law, you had to limit your common law claim to £50, which was the limit of jurisdiction of the County Court. I think that was a most unfortunate piece of legislation. It would have been far better if Parliament, instead of putting upon the Statute Book a complicated and intricate piece of legislation, had merely passed a simple Act abolishing the defence of voluntarily undertaking the risk and the defence of common employment, and leaving the employer in the position in which, in my submission, he was under the old common law, of being liable to pay full compensatory damages to the man who was injured by reason of the negligence of the employer, or of the person given superintendence as the delegate of the employer.
I will pass from that to the Workmen's Compensation Act. I think again the difficulty that arose there was that an attempt was made to deal with the matter in too elaborate a fashion. It is all very well to blame those who have to interpret, but I think, in turn, one may say that not a little blame is to be put upon those who frame legislation in such a way that it is almost impossible to interpret. The principle behind the Workmen's Compensation Act was surely a right principle—the principle that without negligence you shall be insured to a certain extent by the employer in whose employment you are injured, but that must not be carried too far. The hon. Member for St. Helens put forward a view with regard to employer's liability which, I venture to think, is one that cannot be upheld for a moment. You have two systems, the common law—if you abolish common employment and volenti non fit—on the one hand, making the employer pay the full amount of the loss if injury is caused by his negligence or by the act of someone for whom he is responsible. You have the Workmen's Compensation Act, practically insuring the workmen, even against his own negligence; because, if he is guilty of wilful default himself, it is only where the injuries are of slightest possible character 2688 that he is deprived of the benefit of the Workmen's Compensation Act and the sort of insurance that that Act of Parliament gives. [HON. MEMBERS: "No!"] At any rate, the words are, that if there is serious and permanent injury, or death, notwithstanding the fact that the man has brought the whole of it upon himself, the employer has to pay.
That is the position, and I venture to think it is as high as you can go in the interests of justice. The hon. Member for St. Helens spoke about abolishing the defence of contributory negligence. Upon what possible ground can you ask that an employer should be compelled to make up the full loss to a man who, by reason of his own negligence, has brought about the injuries in respect of which he is claiming? I think, in their own business affairs, and in their own lives, any one of the hon. Gentlemen who sit upon the benches opposite would be the first to say that if a man, under circumstances in which they were involved, brought about injuries for which he claimed against any one of them by his own negligent conduct, it was neither common sense nor justice.
§ Mr. GREAVES-LORD
Then I was right in saying that the hon. Member for St, Helens had completely misapprehended what contributory negligence was. He does not deny the principle that a man should not be entitled to claim the full damages which he could get at common law if, in fact, he has brought about his injuries by his own negligence. There is another point upon which the hon. Member spoke, namely, the question of costs. Again, I think, he failed to put the true position before the House. An action at common law or an action under the Employers' Liability Act involves the employer, and also those who represent the workman, in a considerable amount of expense. It is a very expensive proceeding. You can, to-day, if that proceeding fails, obtain compensation, if you are entitled to it, at the close of the proceeding, and before going away from the judge who has tried the case. Is it not only fair, under those circumstances, that inasmuch as the costs and expenses of the whole proceedings have been caused by the claim at common law or under the Employer's Liability Act, some. 2689 portion of that—that is all that is done in, practice—should be returned by the man who has put the employer to all the expense of the proceedings?
If the Government do anything to deal with this question of workmen's compensation, it will be far better not to attempt to deal with it by a mere amendment of the Workmen's Compensation Acts as they at present stand. It will be far better to deal with the whole subject of the employer's liability for injuries caused to his workmen. In doing that, the really true principle is to get back to the original principle of the common law. That is, that where the employer has failed in his duty the man should not be prevented from recovering by any ridiculous suggestion of common employment or of voluntarily undertaking the risk; but that, where there is no failure of duty by the employer, and yet an accident happens, without negligence on either side, you should have the limited amount of insurance which the Workmen's Compensation Acts give, adapted, if you like, reasonably to the time; at the same time always preserving this, that that can only be a partial remedy, while the full remedy is reserved for those cases where there has been a real failure of duty on the part of the employer, without a failure of duty on the part of the man.
§ Mr. W. A. JOWITT
We have just listened to an exceedingly interesting and well reasoned speech from my hon. and learned Friend. Having heard it, I am really not quite certain whether he was speaking in favour of this Motion or against it. This is an interesting occasion, because we are really going back to historical ground. As the Mover of the Motion reminded us, in 1893 the right hon. Member for Paisley (Mr. Asquith), the then Home Secretary, introduced a Rill into this House to abolish the doctrine of common employment—a doctrine which, as I think all hon. Members will agree, it is highly regrettable was ever invented. The right Hon. Gentleman, in introducing that Bill, described the whole of the principle of the Measure in these words:Where a person of his own responsibility and for his own profit sets in motion agencies which create risk for others, he ought to be civilly responsible for the consequences if that which he does.An Amendment Was moved by no less a person than the late Mr. Joseph Chamber- 2690 lain. I do not think the Mover of the Motion to-night was quite accurate in his, recollection of what took place. The Amendment of Mr. Chamberlain was in these terms:That no amendment of the law relating to employer's liability will be final or satisfactory which does not provide compensation for all injuries sustained in the ordinary course of their employment.In describing the rival principle which he was advocating in that Amendment, he said:I hold it to be a. moral obligation on this House to provide, in every case of injury, that the person injured should be compensated so far as pecuniary compensation can be afforded.Those two principles run on somewhat divergent lines. I find myself, and I think I can speak for those who are sitting round me, in cordial agreement with the Motion proposed to-night. It is material to consider, quite briefly, the position of the existing common law. There were two defences, to the claim at common law. There was the defence, which my hon. and learned Friend the Member for Norwood (Mr. Greaves-Lord) characterised as the defence of voluntarily undertaking the risk. When the Mover of the Motion instanced a case in which a workman, injured by bad plant or bad machinery, was not able to get compensation, the hon. and learned Gentleman seemed to doubt that that could be good law. I am bound to say I prefer to agree with the Mover of the Motion. I think he might not be able to recover, for the reason that it might be said, "You knew this machinery was bad machinery, and yet, knowing it was bad machinery, you voluntarily went on working it; consequently, you cannot complain. "In the very Debate to which I have just referred, Mr. Joseph Chamberlain, speaking from his recollection as President of the Board of Trade, referred to this very striking case: A master went on a voyage on a ship which was ill-found and in an unseaworthy condition. She foundered, and he was killed, and his widow brought a claim at common law to recover compensation. That claim was defeated, and defeated for this reason. He had written a letter to his wife, in which he said: "I know that this ship is ill-found, but if I point it out to my employers, I am a marked man for the rest of my life." Thirty years ago Mr. Joseph Chamberlain 2691 pointed out that that was a monstrous state of affairs, but the doctrine of voluntarily taking the risk still applies, and is part of the law of this land. Speaking for myself and those associated with me, I think it is high time that that doctrine went. I think that principle would have applied to the case to which my hon. Friend the Mover of the Resolution referred. If the workman of whom he was speaking had voluntarily worked at machinery knowing it to be out of order, he might, by reason of the fact that he had voluntarily continued to work at that machinery, have lost his case. I looked up to-day, as a matter of interest, a case in which a man was engaged in lifting heavy articles to a floor above. The original system had been by means of a net, in which the thing to be lifted had been enclosed, and, for the sake of greater economy, the employer got rid of the net and substituted a sort of lift. The workman continued to work it because be had no option. He was seriously injured owing to the lift giving way. He brought an action, and one of the Judges said:If the man did not think it safe, he should have left.And the other Judge said:It may be inhuman so to carry on works as to expose workmen to peril, but it does not create a right of action from the resulting injury if a workman, knowing the peril, voluntarily uses the lift.The Judges acted on the principle of volenti non fit injuria, which, speaking for myself, I think, is often quite as deplorable as the doctrine of common employment. The doctrine of common employment is founded on a legal fiction, which has no sort of justification in fact. Take the simplest case. A train is going along a line, and, owing to the negligence of the engine-driver, it runs off the line, and injures passengers. Any passenger can bring an action at common law, and recover against the company for the negligence of the engine-driver, but, for some reason or other, the guard in the rear carriage, or the stoker assisting the engine-driver, cannot recover. The theory of this dictrine of common employment, as I follow it, depends upon this. It is supposed that when these men—passenger guard and stoker—entered the employ of the railway company, they each said to the company, "I 2692 will be willing to take all the risks of negligence on the part of my fellow employés." It is ridiculous. Of course, they did no such thing, and, as far as the doctrine of common employment is concerned, like the doctrine of volenti non fit injuria, it is high time it went. The Employers' Liability Act of 1880 was admittedly a mere compromise, and a very unsatisfactory compromise, and, speaking from my early recollection of the Bar—and I am sure all lawyers in the House will agree with me—there is no single Act of Parliament which is such a morass of pitfalls, and so full of technicalities by which justice can be defeated as the Employers' Liability Act of 1880. Everybody realised that, and, after it was passed, in 1886 a Select Committee sat to consider this very question of superintendence referred to by the Mover of the Resolution. They reported that the definition of "superintendence" contained in the Act was wholly inadequate, and the Government of the day, in 1888 and 1890, introduced Bills to remedy that defect. In 1893 the right hon. Member for Paisley, as I have already said, introduced his Bill to abolish the doctrine of common employment altogether.
The principle to which Mr. Joseph Chamberlain had referred, namely, that every man who is injured while working, or his dependants, should be paid suitable compensation is now enshrined, as we know, in the Workmen's Compensation Act, but I should like to point out, speaking as a lawyer —as a creature of circumstances, as the Seconder of the Resolution told us we were—the extreme difficulty in which the young lawyer is in because these things generally come before young lawyers when advising a client as to what remedy he should take. The hon. Member who has just spoken said, quite rightly, that it is a peculiar feature of this branch of the law, that you have your claim an common law, which must be brought in the High Court; you have got your claim under the Employers' Liability Act, which can only be brought in a County Court; you have your claim under the Workmen's Compensation Act, which, although it must be brought in a County Court, is brought before the County Court Judge, not sitting as a County Court Judge, but as an arbitrator; and, though theoretically it may be possible, in practice I have never known anybody succeed in com 2693 bining these proceedings in one case. Every day in the law courts we are combining in one action various ways of putting our case, and it would be an intolerable injustice if we could not do that. In this connection you cannot do it. The young barrister, faced with that situation, has to consider this. He thinks to himself, this is a case in which. I think, I might do well at common law. It has a great advantage. The amount is unlimited; you get paid a lump sum, and there are no miserable technicalities. He has got to realise, however, that if he brings his action and fails, he cannot then take the other proceedings. It is quite true that if he has failed in his action, he can get the court then and there to assess the compensation.
I looked up a case to-day which shows how nugatory that becomes, or may become, in view of the liability to pay costs. There was a case in the Scottish Courts not very long ago in which a man brought an action at common law. He lost. He then asked for his compensation under the Workmen's Compensation Act to be assessed, and the Court assessed it at 12s. per week. The cost of the High Court proceedings, which he lost, came to £187. Approximately, at 12s. a week, it would take something like six years to pay off the £187 costs. That is not much good to a man. There is more in it than that. Supposing he brings his action at common law and fails, because of this doctrine of common employment. We will assume a case in which you might have got over that common employment under the Employers' Liability Act. The Act seems really—I know it is not—to be drawn up with devilish ingenuity, to make it difficult for the workman, because he cannot in practice get over this common law action until six months have passed, and that is the limit of time within which he may bring his action under the Employers' Liability Act. So that he cannot, if he has brought his action at common law and failed, then start his action under the Employers' Liability Act. It does not end there. If you advise, as most of us used to advise, that the best course is to take proceedings under the Workmen's Compensation Act, because there, at any rate, you are much more likely to get something, cases sometimes arise in which 2694 a man fails to recover under the Workmen's Compensation Act, although he could have recovered at common law.
Let me give an instance. A man may be a casual labourer employed anywhere about his employers' business, and he brings his action. He thinks he is employed—it is a borderline case—under the Workmen's Compensation Act, and fails because he is not under that Act. Having tried to get compensation under the Workmen's Compensation Act he is debarred from pursuing the matter, and from bringing an action under the common law. Further, I remember—and hon. Members sitting around me will remember—when we used to be instructed as lawyers for employers, and where the ease was brought under the common law, and we had a bad case and knew it, the first thing we did was to look round and to see if we could not say that "This man has accepted compensation under the Workmen's Compensation Act, "and if we could say that we knew he would be prevented at common law.
Speaking as a "creature of circumstance," what I have stated is not the lawyer's fault. He is bound to do the best he can for his client so far as he can under the existing law. But it is the duty of this House to see that the existing law is put on a proper basis. I think hon. Members will all agree that in certain cases, fortunately rave, there are bad employers or bad insurance companies, and it was a common dodge, when a man had been injured and had brought an action at common law, to go and get him to accept money, and get him to sign a receipt saying he had got it under the Workmen's Compensation Act. Once he put his hand to a document of that kind, unless it could be said that he was so ignorant that he did not understand it, his claim at common law had gone, and gone for ever. It used to be done. [An HON. MEMBER: "It is now!"] I am sorry to hear that, but I quite accept the hon. Member's statement that it is still being done. If it is done, it is time it was done no longer. It seems to me that the practical steps that this House should take, and I hope the Home Secretary will sec if he cannot give effect to them, are these:
First of all, it seems to me you ought to take care that the tribunal which is going to be able to determine these claims is the same tribunal in each case. 2695 that is to say, that if the workman comes before the County Court Judge he ought to be able to present to him as you do in an ordinary case, and prove to him if necessary, a threefold claim, any one of three ways, so as to be able to win on one of them. Secondly, and I do not want to say more than a sentence or two on this, but I hope the recommendations outlined in the Report of the Holman-Gregory Committee in respect to Workmen's Compensation will be carried into effect The maximum in the case of death is now £300. That may be adequate where the widow is left alone; but it must be grossly inadequate if she is left with a large family. I cannot help thinking that the principle of that Report is right, and that the amount to be awarded should depend upon the extent of the need. Next I earnestly trust if the present System of weekly payment is to be continued, that something will be done to stop the abuse of it relating to incapacity or partial incapacity. The money is paid for some time, and then the insurance company stop it on the ground, as they say, that the man has recovered. That places the man in an intolerable situation. He has got no money coming in, and then if there are dishonest people —and there are unfortunately a few dishonest people about—by placing him in a difficult position they can then get him into such a condition that they can make their own terms. That used to be the case I believe it is still so. From my constituency I have had recently many complaints of that sort of thing happening.
Next, I earnestly hope that some scheme of compulsory insurance will be introduced. I have, in my own experience, both as a Member of this House and as a member of the Bar, known many heartrending eases in which the award was made, but in which the employer was quite unable to carry out that award because he was not insured and had no adequate amount of money. Finally and, perhaps, most important, I do hope the award not only in the case of death, but also in the case of partial incapacity, will be brought up to a more adequate figure than it is at present. The Holman-Gregory Commission recomended 66⅔ per cent. of the wage, and I hope that that will be the minimum figure rather than the maximum, and that that will 2696 be the amount to be inserted in the Act. If that is done, I should still be sorry to think that the common law action against the employer was done away with. I think it is a right and a healthy thing that the employer should be taught that he has got to be careful and that, if he is not careful, he will be punished, and he will be punished by the jury awarding damages in an action brought at common law. I should like to-point this out—it might have been useful to some hon. Members in the Debate last night—that, without increasing the premiums the insurance companies have undertaken to pay larger benefits. At the present time I think that 48 per cent. only of the amount expended in premiums goes to pay benefits. [An HON. MEMBER: "Less than that!"] An hon. Member says "less," but somewhere about it, anyhow. The rest comes under working expenses, commissions, profits, etc.
For these reasons, apart from the further reason that this branch of the law is utterly impossible to understand for anyone who is not a specialist, I support the Resolution. We have yearly volumes of reports dealing with these workmen's compensation cases. There are, I think, probably 15 or 16 volumes now dealing with these cases alone since the Act of 1906. It is utterly impossible for any lawyer to undertake any of these cases unless he is deeply versed in all these 15 or 16 tomes. How on earth any layman can hope to be up in them unless he has a large library and ample time to study, I cannot think. It is time that the results of these various decisions were brought together in intelligible language, and placed in an Act of Parliament simple enough for that class to understand for whose benefit this Act was introduced.
§ Major BIRCHALL
I find myself in hearty agreement with the Mover and Seconder of the Resolution to-night. I hope that as a result of the expression of opinion on all sides of the House that the Government, during the long period of four years which probably they have before them, will be able to deal with this very complicated question. There is no doubt that the one thing beyond all others that the workmen want in this country is a sense of security, a sense of feeling that if accident or ill-health comes there is some provision not only for himself, but for his family. These various Acts 2697 of Parliament and common law are excellent in idea, but they are very faulty in the manner in which they are carried out. An Act which operates badly very often creates more uncertainty and more sense of insecurity than no Act at all. There arc so many hard cases, and so many cases which are thrown out almost inevitably owing to the technicalities of the law, and so many utterly unintelligible decisions under the Acts, that the sense of security on the part of the workman who suffers from an accident is lacking.
The only fault I find with the Motion is that it docs not go far enough. I wish the Mover, in addition to asking that the law of compensation for accident should be codified, had asked that all kinds of insurance should be codified. In my opinion, the Government would be well advised to consider whether matters of insurance, unemployment, accident, health and hospital, and so on could be combined under one administration representing the workmen, the employers, and the community. It would be well worth while doing that. Much time would be saved and more money would be available for the compensation of the workmen themselves.
I want to draw the attention of the House to a matter which has not been mentioned to-night in this connection. I have in my hand an official paper, entitled, "Statistics of Compensation under the Workmen's Compensation Act, 1906, and the Employers' Liability Act, 1880. "I want to draw the attention of the House to the enormous waste which is going on to-day under those Acts, and to the enormous sums which employers of labour are asked to pay for the very small result which the workmen receive. These are official figures for the year 1921. I find that the employers of labour had to contribute to the insurance companies £8,250,000. Of that £8,250,000 the workmen received in compensation less than £3,000,000. Where is the other £5,250,000? I propose to give the House a very few figures in a very few minutes. The facts can be obtained by every Member, but they may have been overlooked. The facts are these. Of the £8,250,000 contributed by employers—contributed by industry as a charge upon industry—the workmen themselves only received £3,000,000, and that £3,000,000 included the legal costs in 2698 getting it. Therefore the workmen got less than £3,000,000 out of £8,250,000. Of the balance, one third, roughly, went in administration, and one third went in profit to the companies. Whatever may be said for private enterprise, the test of private enterprise must be economy and efficiency in working, and if, in the carrying out of compulsory compensation —the whole idea and basis of which is the benefit of the workmen —the workmen only get one third of the amount industry ha to contribute, then I say it is neither efficient nor economical. In making this codification, as those concerned are asked to do by the Mover of the Resolution, I hope occasion will be taken to look into the question of the cost of administration of these Acts by the insurance companies, and that it will be found possible, either to reduce the burden on the employers, and therefore partially remove the burden upon industry, or increase the amount of compensation which the workmen receive, which would be equally satisfactory. It seems to be altogether an untenable position that only one third of the amount contributed should go to the workmen, one third to the cost of administration and one third in profits to the shareholders of the companies. I hope this Debate to-night will draw the attention of those concerned to these facts, and that some means may be found of remedying them.
§ 10.0 P.M:
§ Mr. WIGNALL
I am sure we are deeply indebted to the hon. and learned Member for the Hartlepools (Mr. Jowitt) for his very able exposition of the law of compensation as it exists to-day, and for the very striking testimony which he has given for the need of codifying all the laws relating to workmen's compensation, and for the need of eliminating and dealing with some of the evils which exist. The only speech which has been delivered, supposedly delivered, against the Motion was, in my opinion, the strongest speech which was made to-night in support of the Motion. It might have been unintentional. It might have been intended for an entirely different purpose; but anyone who sat and listened to the argument of the hon. and learned Member for Norwood (Mr. Greaves-Lord) must agree that he brought all his legal knowledge and powers of persuasion to prove that the condition of affairs as it exists 2699 to-day is wrong and needs to be put right. I have heard that word "reasonable," which the hon. and learned Member has quoted, argued in the County Courts and in the Assize Courts in compensation cases so frequently that I have almost got sick of the word. It all depends on what is the view-point of the judge as to what is "reasonable." When two learned legal gentlemen, such as we have listened to to-night, one on each side, tries to persuade his lordship that "reasonable" is what one says it means, and the other tries to persuade his lordship that "reasonable" is in accordance with the view he takes, I do not wonder the judge is perplexed and troubled, and gives a decision sometimes very reluctantly, because he has been battered almost to death by the legal gentlemen who are trying to help the Court. Of course, it is their business, as the hon. and learned Member for the Hartlepools has said. They have to do the best for their clients, but in doing their best for their clients they very often confuse the jury and certainly perplex his lordship.
It would be folly, indeed, for any of my party—I have missed our particular legal luminary on our side—to attempt to expound the law. No two legal gentlemen who are arguing a case on different sides ever agree, certainly in Court. They might agree before they get in, and they might agree after they go out, but their business is to disagree while they are in Court. Therefore it would be folly, indeed, for any of us laymen to attempt to combat any of the statements made by the learned and hon. Members.
But we have something, after all, to go by, and to fortify us in our request which is now under consideration. We have personal, practical experience, and we have had to do a great deal in bringing clients to the hon. gentlemen who confuse the jury. We have had a lot to do in assisting to prepare cases, and while that word "reasonable" remains, I can assure the House that we are very much troubled about it. Perhaps I shall not be out of order in giving one or two illustrations from my own personal knowledge. I remember one very important case, tried in the County Court, of a man whose foot was badly broken. The man was working on a staging on a ship that was being discharged, and as the cargo was coming 2700 out the ship was lightening and rising above the water. The iron plate was getting a bit of a tilt, and as the man was bringing his load down the iron plate tipped over and broke his foot. It was held that the man did not take reasonable care, that he ought to have known that the plate was likely to tilt, and so the case was lost.
I will give an illustration of a combined action we have heard so much about. There comes to my mind the case of a man who had his leg torn right away from the hip. He thought and believed, and others who were assisting him believed, that he had a very good case in common law. His case was taken to the Assize Court. The common employment argument was brought forward and used with all powers of eloquence by legal gentlemen to prove that this pernicious doctrine was right. This poor fellow with his leg torn out, because somebody else had done something that contributed to the accident, lost his action and the common employment defence carried. Then he was awarded under the Compensation Act a sum of £1 per week. The costs in that case amounted to over £260, and I would have taken that man something like 30 years to have paid the amount in small deposits. Others came to his help, of course, and he was relieved of a considerable portion of the burden. That man is living to-day and he will probably read my speech to-morrow. It will not be my fault if he does not. I say that if any codification of the law is to be done or any new Act introduced, there should be an attempt made to cheapen the cost of cases even under the Compensation Act as simplified to-day.
I have a kind word for the medical gentlemen. I remember a case, typical of hundreds of cases, which came before the Cardiff County Court when the late Judge Owen presided. In this case a man was injured in the back very badly. An award was made and he was getting compensation. Then the other side applied to the County Court for review, and they said the man was a malingerer. He had to appear before the judge, and they had secured two eminent doctors to prove that the man was not suffering from lumbago but suffering from the injury he received. The very morning the case was to be tried I was informed that a third eminent physician had been obtained to give further evidence on the 2701 other side. Of course, I was not to be beaten. I went to look for another eminent surgeon, and I found one. But before he would look at the man he said, "I want 10 guineas." "Well," I said, "you can trust me." But he was a Welshman, and he said "No." I had great difficulty and trouble in getting the money, but it was paid. The man was examined and the surgeon went into Court. Therefore, in order to decide whether this man was malingering or suffering from lumbago or suffering from his injuries, two firms of solicitors were employed, one on each side, two eminent barristers, one of whom, now dead, became a well-known judge, and six medical men—three to prove the man was a malingerer and the other three to prove that the first three doctors were not telling the truth. I am glad to say that Judge Owen, when he had heard the doctors, said. "You can all go away. You gentlemen do not come here to help the Court, but, like the solicitors and barristers, you come here to help your clients. "Incidentally, I should say, we won our case. I think that kind of thing ought not to be. How could that man, if he had been alone, have conducted the case or raised money sufficient to give him a fair defence? It was impossible.
The whole circumstances surrounding the administration of the Compensation Act as it stands to-day are full of difficulties. I should like to say a word about that bartering with the injured men. I have vividly in my mind now one poor man, crushed and broken and unable really to understand what it was all about, and the insurance tout going and jingling 10 pounds before him—the wife hungry, the children hungry, and the anxiety about the rent, because of the time they had to wait till the case was heard—and he says, "Take these 10 pounds and settle your case." The temptation is great, it is overwhelming, and the man is tempted to accept, not knowing that he is depriving himself of his legal right to prove his case. It is true that in the case I am quoting now—it is one from my own experience—the judge knew that the man had not been fairly dealt with, and was taken advantage of, but these are defects, they are evils, and whatever codification of the existing law may be brought about as the result of what I am sure will be the decision of this House to-night, whatever alterations or new Bills may be 2702 introduced, these safeguards—gathered from knowledge and experience of the life-work of some of us in trying to help those who cannot help themselves—ought to be inserted so that we may do right by those who are entitled to compensation for themselves and their dependants in the time of need and stress that is upon them.
§ Mr. MORRIS
I must confess to a certain feeling of disappointment when I heard the hon. Member who moved this Motion say that it does not propose to alter the existing law. I cannot help feeling that no one who has sat in this House to-night, and has heard the speeches that have been delivered, can do otherwise than come to the conclusion that it is not a question of codification, but a question of reform. That great lawyer, Jeremy Bentham, when speaking of codification, referred to it as a means of reform, and I cannot help thinking that the hon. Member for St. Helens must have had reform in his mind when he put the word "codification" into this motion. After listening to the hon. and learned Member for Norwood (Mr. Greaves-Lord), it does seem to me, and I think it may seem to other Members in this House, that it would be difficult to codify the law, so far as common employment is concerned, and to make it clear to the man in the street; and that it would be better to have common employment eradicated rather than to have it codified and put into any new Act of Parliament. When one turns to the Workmen's Compensation Acts, and when one thinks of 1897, which is a good many years ago—I think I am correct in my recollection in 1897 when Mr. Joseph Chamberlain brought his Bill before this House, he pointed out to the House that the employer had to repair and make good his machinery, and that it was right also, on the same principle, that he should repair and make good, so far as money-could make it good, the human machinery which he employed. Carrying that principle out, that Act, with all its difficulties and some of its anomalies, was passed through this House; and then, in 1906, it was further developed and extended.
There are but three points in the Act of 1906 to which I should like to refer. The first is the question of notice, which 2703 was touched upon by my hon. and learned Friend the Member for, the Hartlepools (Mr. Jowitt). I remember, only too vividly, going up to the constituency which my hon. and learned Friend represents, and appearing for a widow whose husband had been injured by an accident in the course of his employment. He had not been paid compensation, and did not understand the question, of compensation; he was too ill. Because he did not understand the question of compensation, he gave no notice of his injury, and it was not until some months later, when he died, that the widow went to the secretary of the trade union and proceedings were started on her behalf and I appeared for her. It was then too late. No notice had been given. The employers pleaded that they were prejudiced, and I can remember to this day the agony of mind and feeling I had when I lost that case and I saw that unfortunate woman, who had practically nothing and, I think, was starving. That question of notice, if we are going to have a codification of the law, must be altered.
There is another thing which most certainly ought to be altered. I noticed that the hon. Member for Norwood, when referring to the Workmen's Compensation Act, pointed out that there were words in it for the protection of the workmen, that in cases of serious injury and in cases of death, although the accident or the injury by accident might have arisen from the serious and wilful misconduct of the workman, that would be no defence to the employer, but because that has been put in and because it is no defence to the employer, those who appear on behalf of the employer have been running and have run, in my view and my submission, to death the defence that the accident does not arise out of the employment. May I give the House one instance? I am thinking of the instance of a man who was at work in a mine and it was his job to charge the shot. There was a rule in the mine that he was not allowed to drill and charge a hole in a place where there was an old hole of some charge that had misfired. As he looked at the face of the working he came across an old hole in a place where a charge had in fact misfired. It is softer and it is easier to drill. He was a human being. You were not dealing with machinery. You were deal- 2704 ing with a man who will take short cuts, a man who will forget the risk, and a man who will do the thing that is easiest and comes first to hand and he took his drill and the old shot down there had not, exploded, and it did explode, and he was killed and his widow took proceedings for compensation. She succeeded before the County Court Judge, sitting as arbitrator, she lost in the Court of Appeal, and she lost in the House of Lords. They said the accident did not arise out of the man's employment. He had been forbidden to do this thing and so it did not arise out of his employment. I cannot imagine how-anyone could come to such a conclusion. It was his employment to do this thing. He had to drill and he had to get the, hole to put the shot in. Because he is told not to do it in this spot or in that way, because he is a human being and takes a short cut, it is said it does not arise out of the employment. The whole of the Workman's Compensation Act is really based on that because the right to compensation arises under the operative words of the Act:Where an injury by accident arising out of and in the course of the employment is caused to a workmanSome reform or codification, if I may use the word of the Motion, is needed in a case of that kind.
The last thing I want to refer to is something the Mover of the Motion referred to. He said the evil of contracting out is still there. The hon. Member is not quite up to date in his law. The evil of contracting out, after yesterday, is not still there. I remember when this question of contracting out was raised in the year 1912. An unfortunate workman, named Ryan, was injured by an accident. His employer came to him and invited him to go into a public-house, and handed over to him 35s. Ryan signed a receipt and accepted the 35s., and came away with it in his pocket. Some little time afterwards he thought better of it. and started proceedings to recover compensation. He was unsuccessful before the County Court Judge, and he was unsuccessful in the Court of Appeal. The Court of Appeal said that a workman of full age and a workman who was not under disability was capable of entering into a contract of that kind, and they held that taking the 35s, was not contracting out of the Act, and did not come within 2705 these words, which are at the end of Section 3:Saving as aforesaid, the provisions of this Act shall apply, notwithstanding any contract to the contraryI was unfortunate enough to have to argue in the Court of Appeal, and I regret to say that the Court laughed me to scorn when I said that the payment of that 35s. was a contract, and a contract contrary to the provisions of the Act of Parliament. That was in 1912. Since then workman after workman have been tempted with sums of money and have lost their rights under the Act of Parliament. Yesterday, however, by a majority in the House of Lords, that decision has been reversed, and the House of Lords have now held that you can have no contracts, even by a workman of full age, which would take him out of the rights and privileges of the Act of Parliament.
We do not want to codify an Act of Parliament of that sort. I do not say that it is ill-drawn, but it cannot be well drawn if three Judges of the Court of Appeal can take one view of it, and then 11 years later the House of Lords take another view. We do not want to codify that Act. Although I am heart and soul with the Resolution, it is only upon the wider ground that if we get codification we can also have reform.
§ Mr. CHARLES EDWARDS
The last speaker has said much that I wanted to say. When I looked at the Resolution I regretted that it was drawn so narrowly and so circumscribed, but you, Mr. Speaker, have allowed a very wide discussion, and I am very much obliged to you for that. I am much more concerned about a new Compensation Bill than I am about codifying anything that we have at the present time. We can codify as much as we like, but is will not alter the hardships that have been spoken of to-night, nor will it put right those ridiculous decisions which have been given. There is not a single line in the existing Compensation Acts which has not been contested by one side or the other. If you are going to codify anything at all, the only thing left would be the name of the Act of Parliament. The thing to codify would be the decisions of the Judges. We have been told that they run into many volumes. What we want 2706 is a new comprehensive Compensation Bill that will bring together all these things in an intelligent form. I hope that the Home Secretary will not merely reply on the circumscribed Resolution that has been moved to-night.
What is the intention of the Government in relation to a new Compensation Bill? We were promised that in the last Parliament. They set up a Commission with a view to bringing in a new Bill, but what they did was to kill time until they got into bad times, and then they said that they could not accept the findings of the Commission. I should be glad to know what the intentions of the Government are, and if there is any hope of a new Compensation Bill. Codifying is no good. It has been contested again and again, until there is nothing left in any of these Acts of Parliament that is any good. We want a new comprehensive Bill, and I would ask the Home Secretary to state what are the intentions of the Government.
§ The SECRETARY of STATE for the HOME DEPARTMENT (Mr. Bridgeman)
Like the Mover of the Resolution, I am quite ignorant of the law, and as a layman I took much the same point of view as he does, but the Debate has gone over a very much wider range than the words of the Resolution seem to me to cover. It has been a very interesting Debate, but I have been asked several questions which I think a little premature about what is going to be contained in the Workmen's Compensation Bill which the Government hope to introduce shortly. I hope that we shall be able to make some improvements. I have no doubt that we shall not go far enough to please a great number of hon. Members in this House, but there are certain points which require to be dealt with immediately, and we hope to do that. After the, speeches of the Mover and Seconder of the Motion we had learned dissertations from several hon. and learned Members which, as they proceeded, made one feel how frightfully difficult the whole question was, and what a task it was for any Government to undertake to sift it all for codification.
That is a task which cannot be very lightly undertaken, though I think it ought to be undertaken, and in due time accomplished, but first of all we must introduce the Rill which is urgently re- 2707 quired at the present moment, and when that is passed, as I hope it may be, then I hope that we can devote our attention to some kind of consolidation or codification of the various Measures which concern this particular kind of legislation. I do not think that you can codify the Employers' Liability Act with the Workmen's Compensation Act, but there are Measures dealing with workmen's compensation which I think might very well be consolidated. The Employers' Liability Act is falling almost into disuse. It is being largely superseded by the Workmen's Compensation Act procedure, not only because it is a cheaper and more certain procedure, but because the benefits under it are really better. There is the attraction in the Employers' Liability Act of a lump sum, but if you took the actual value of that lump sum I do not think that it would be found to be as good value as the benefit which could be got, under the Workmen's Compensation Act.
I have been surprised to find that the Employers' Liability Act has fallen into disuse, In the year 1898, the year after it came into force, the number of actions under this Act was 1,879. In 1908 the number had fallen to 405. In 1918 the number was 63, and in 1921, the last year for which I have figures, the number was only 27. That, I think, shows clearly that there are many more objections from a workman's point of view to proceeding under that Act than there are to proceeding under the Workmen's Compensation Act. I am entirely in sympathy with the intentions of this Motion. I cannot say now what will be the provisions of the amending Bill which I hope to introduce soon after the Recess, but I hope that they will be received as an instalment of what is required, and that later on we may proceed to some Measure which will clarify and consolidate the various Acts. I do not suppose that we shall go to a Division on this Motion, but if we do I shall certainly support the hon. Member who moved it.
That, in view of the confusion due to the existence of several Acts of Parliament dealing with compensation for injury to workmen, this House is of opinion that any Bill dealing with workmen's compensation introduced by the Government should contain provisions for codifying the Law.