§ Order for Second Reading read.
§ 1.13 p.m.
§ Mr. THORP
I beg to second the Motion.
The explanation of this Bill is perhaps rather technical. The subject-matter of it is the old common-law doctrine that, if a workman in the employ of a person is injured by reason of the negligence of someone who is in the same employment, then the employer of the negligent person is not liable for damages to the workman injured. It is a very old doctrine of the English Common Law, and it never applied in any country except England. I do not know the origin of it, but very possibly it was to prevent workmen from conspiring among themselves to inflict an 729 injury on a fellow-workman and so enable that fellow-workman to obtain damages from his employer. I am sure, however, that, whatever may have been in the minds of our ancestors when this rule was brought into existence, it is nevertheless a rule of law at the present day, and it is a distinct hardship on a workman who is injured by the negligence of a fellow-workman that the mere accident that they happen to be in the employ of the same employer should render him incapable of recovering damages. Furthermore, at the present day no doubt all employers are, very wisely and properly, insured against the kind of accident that happens in a case of this kind, and in these circumstances it is only proper that the very old Common-Law doctrine should be altered. Accordingly, I hope the House will give the Bill a Second Reading.
§ 1.15 p.m.
§ Sir WALTER GREAVES-LORD
I must apologise for my absence when the Bill was called. I did not think that it would come on so early. The object of the Bill is, roughly, to repeal what is known as the doctrine of common employment. In normal circumstances an employer is responsible for the negligent acts of his servant and if anyone is injured by the negligence of the servant the employer is liable to make good by damages the injury which is caused. There has been, however, since the year 1837 an exception to that rule; an exception engrafted upon the common law of this country by a decision which has certainly received a great deal of criticism. The decision comes to this that, although an employer is liable to make good any injury caused by the negligence of his servant, he is not liable if the person injured happens to be another servant of his. Stated in that bald way it seems to be quite an indefensible exception. It is a very gross injustice to a large number of people, and for the past 70 years considerable efforts have been made to mitigate that injustice, and set aside this principle engrafted upon our common law, but no one has gone so far as to try and get rid of the injustice altogether. A great many things have been done and a great many alterations have been effected in the law, but nobody has faced the question of totally amending the law as brought about by that decision in 1837.
730 The idea which gave rise to the decision was this: as it was said that an employer only undertakes with his work-people that he himself will not be negligent in his conduct towards them, and that the only duty he undertakes is to employ reasonably competent servants. It was also stated that when a man goes to work for an employer he impliedly takes the risk of his fellow servants being negligent. That is a doubtful proposition and one which is very likely to work injustice. However, that was the principle adopted in 1837. Somewhere about the same time the same principle was adopted in some of the States of America, but in America very strong measures have been taken to mitigate the effect. So far as the Continent of Europe is concerned no Continental country of any importance has allowed an employer to escape from making good the result of the negligent acts of his servants.
§ Notice taken that 40 Members were not present; House counted, and 40 Members being present——
§ Sir W. GREAVES-LORD
I was giving some of the facts in regard to other countries with respect to this doctrine of common employment, and I should like to illustrate its effect so far as this country is concerned. Considerable inroads have been made upon the doctrine in this country and there are liabilities on the part of employers now which will in some cases cover the negligent acts of the employer's servant who causes injury to a fellow servant, but those inroads upon the doctrine do not themselves abolish the doctrine, except with regard to one Statute. What I am saying now must be taken purely with reference to the Common Law. As the Common Law stands, I might give one or two concrete illustrations of the way in which it works.
Suppose a man has in his employment a chauffeur and a gardener. On some Saturday afternoon, say, when the gardener is off work and has no contractual relation with his employer he happens to be walking along a public street and is knocked down by his employer's car, negligently driven by the employer's servant. In that case the employer is liable to make good in damages the injury to the gardener. But suppose, instead of it being a Saturday afternoon, when there was no contractual relationship, the gardener happens to be coming out of the drive of his master's house during the 731 period of his service and the chauffeur brings the car down the drive, negligently, and knocks down the gardener while he is at work in the drive, at Common Law that gardener has no remedy against his employer for the damage inflicted upon him. Let me give another illustration. A chorus girl is employed in a theatre, where staging has been put up under the direction of the manager and that staging has been put up negligently. The chorus girl is injured, perhaps for life, but at Common Law she has no remedy against her employers or the owners of the theatre. It may be that she can prove personal negligence on the part of the stage carpenter and she might have a remedy against him, but everybody knows that that is not worth very much.
Let me take another example, which I think is more striking. Every seaman on board a ship is in common employment with the master of the ship. Let the master of the ship be negligent, as negligent as he may, thereby injuring one of the seamen, so far as the Common Law of the country is concerned the seaman has no right of any sort or kind against the owner of the ship, although the master is put in sole control from the point of view of navigating and managing the ship while it is at sea.
As I have said, there are considerable inroads upon this doctrine, but before I deal with those inroads let us consider the ordinary Common Law rule with regard to damage and injury caused by negligence. The master of a negligent servant, if the servant causes injury to a third person, is liable in Common Law, as far as damages go, to make good to the person injured the damage which he has received. That includes all the loss of wages resulting from the injury, all expenses to which the injured person may be put in getting right as far as he can from the injury, and a sum such as a jury may think is reasonable for the pain and suffering which he has undergone. All those ingredients go together to make up, as far as it can be made up, money compensation for the injury that a man has received. Therefore, the remedy at Common Law is a substantial remedy, and it is also an immediate remedy, because when an action is brought at Common Law the damages are assessed once and for all, and juries are always 732 warned that they have to take care that those damages shall be reasonably ample because of the fact that they are assessing the damages once and for all.
Let us take the position with regard to the inroads which have been made upon that doctrine. The first substantial inroad was made in the Act of 1880. I am not going into every detail with regard to those remedies. I am stating them roughly, but I hope precisely, in order to illustrate the difference. Under the Employers' Liability Act exception to the doctrine of common employment was made to the extent that a master became liable for defects in his machinery or plant and for the negligence of servants who had the power to give orders while in the exercise of that power, and also for servants who had powers of superintendence while in the exercise of that superintendence. But while Parliament recognised that those inroads should be made, on the general doctrine of common employment, Parliament limited very wisely the amount of damage which might be recovered, because in no case under the Employers' Liability Act could a man recover more than three years' estimated wages although he might be maimed for life as a result of the injuries which he had received. Not only that. The inroad upon the doctrine was strictly limited in its scope. It did not apply to seamen, so that the difficulty with regard to the seaman and the master of the ship still remains, and it did not apply to any domestic or menial servants. Therefore it was partial in its effect and limited as to the amount of damages that were recoverable.
A further inroad was made upon this position by the Workmen's Compensation Acts. There a remedy was provided which is irrespective of negligence altogether. There, in what one may call a short illustration of employment risks, a workman who is injured in the course of his employment, whether the injury is caused by the negligence of a fellow servant or by his own negligence, or without any negligence at all, is entitled to compensation, but again there are serious defects in the amount to which he is entitled—limits which are supported and justified by the fact that the remedy under the Workmen's Compensation Acts is entirely irrespective of the question of negligence. Therefore it is thought, when you are giving an all-round remedy of 733 that kind, where the employer may have been the most careful employer in the world and yet the injury happened, that it is only fair that the injury should be apportioned. In those circumstances a man receives under an injury which leaves him still alive, roughly speaking, half the average money which he has earned per week during the 12 months preceding the accident.
There again there is a limit. Although the amount has been pretty sensibly increased, suppose a man is employed at a weekly wage of £4 or £5 a week the limit that he can get in workmen's compensation is 30s. per week. So assuming that he is a workman employed at £4 or £5 per week, his loss would be from. £2 10s. to £3 10s. a week. Apart from that altogether he is not allowed—because workmen's compensations are on the principle of the risk—anything for medical expenses, and should death unfortunately result from the injury the highest amount which his widow can get, irrespective of children, is £300, and in certain cases where there are children she may get as much as £600, but no more. It does not take very much imagination to picture cases where figures of that kind are wholly inequitable and unjust to the widow, and to the children who are left.
The result is that you still have a large number of cases in which substantial injury is caused where there is no effective remedy because of this doctrine of common employment. I will give a simple illustration. Suppose a man earning, say, £4 a week was injured by accident caused by the negligence of a fellow employé. If he was off work for three months, he would be entitled, if he had a remedy at common law, to £52 for loss of wages, to all the medical expenses, and to any other expense to which he was put in recuperating and bringing himself back to health, and he would also be entitled to whatever sum a jury or a judge thought was the right amount for pain and suffering. He will still have the £52, and all the other matters will be added to it. On the other hand, so long as the doctrine of common employment remained, all that he would get under the Workmen's Compensation Act would he £19 10s. doled out to him at 30s. a week. I venture to think that where there is negligence on the part of some persons for whom, in normal 734 circumstances, an employer ought to be responsible, figures of that kind—I have only taken small figures, and I could take much larger figures if I chose—tend to show what a rankling sense of injustice that position may leave. One might take larger figures. An illustration came before my notice not very long ago where a man who was earning a very considerable amount of money per week received from the jury a verdict of £350. He was defeated by the doctrine of common employment. The only remedy left to him was under the Workmen's Compensation Act, and under that Act the total amount that he was entitled to was £40. That shows clearly what a rankling sense of injustice there can be in these circumstances.
My own view has always been that, wherever there is negligence on the part of an employer or a person for whom he ought to be responsible, he should be made to pay full and complete damages for the injury that he has caused. Our law has always been careful to provide that in normal circumstances a man who is himself negligent and causes his own injury should not recover damages, and that is perfectly just. But midway between that we have workmen's compensation, where you get a perfectly just principle of sharing the risk between the two where there is no blame to be attached to either or where the position is equal so far as blame is concerned. But we have not got that position at present because of this doctrine of common employment. That picture will not be completed until we have eradicated from our law the doctrine which I am seeking to eradicate in this Bill.
For some 70 years efforts have been made to get rid of this doctrine. A Commission sat before the Employers' Liability Act of 1880 was passed. The doctrine of common employment has always been a subject for derision among lawyers who have carefully thought it out, but we have not been able to get rid of it. We have rather played with the question by allowing certain inroads upon it because we saw that it was so unjust. I think the day has come to rid our law of injustices of that kind. I think the illustrations that I have given are sufficient to show the grave injustice of the position. I hope that the House will pass the Bill and that it may go on to the Statute Book, where I think it will 735 remove a sense of injustice which has quite rightly rankled for a century, and prejudiced the good relations between employers and employed.
§ 1.39 p.m.
§ Mr. JOHN
We on this side heartily support the Bill. So far as it goes, it will ensure improved facilities and better protection for the injured workman and his dependents. The criticism to be levelled at it is not so much in regard to what it contains as the absence of provisions to amend the Compensation Law. A great deal of improvement is necessary in the Compensation Law. I should like to see the Home Office introduce a comprehensive Bill covering every phase of compensation. This Measure is only a further proof of the development of the Compensation Law in the tendency towards a complete scheme of insurance for all occupational accidents and diseases. Until 1880, in order to justify a claim for damages against an employer, the injured workman had to prove negligence not only on the part of the employer but also on the part of the employer's servant, and the various defences available made it practically impossible to succeed.
§ Sir W. GREAVES-LORD
He had not to prove negligence on the part of the employer's servant. If he did that, he defeated his own claim. He was limited to his employer. Unless he could show that his employer was negligent he had no case.
§ Mr. JOHN
I made that mistake. He had to prove negligence on the part of the employer. It became evident that a change was necessary, with the result that the Employers' Liability Act, 1880, supplemented the Common Law. Subsequently we had the Compensation Acts, and a number of these have been introduced and passed, but years of experience demonstrated the necessity of more protection for the injured worker. Under the Compensation Act of 1927 there was no need for the injured worker to prove negligence on the part of the employer or on the part of the employer's servant. All that is essential now is to prove that he received the accident arising out of and in the course of his employment. This shows the gradual tendency towards a very complete scheme of insurance on 736 behalf of injured workers. If the Bill is passed, as I hope it will be, I believe it will bring the Common Law more into conformity with the principle that was introduced in the Compensation Act, 1927.
Under the Common Law an employer is bound to provide facilities, so far as he reasonably can, which will prevent accidents to his workmen. It is true that he cannot warrant that the conditions of employment will be entirely immune from accident. That is impossible. But still, under Common Law he is bound to carry on his business in such a way as not to expose his workmen to unreasonable risks. There is a duty imposed upon the employer to see that his workmen shall not suffer injury arising out of any negligence on his part. The responsibility of employment rests either personally upon the employer or upon one of his agents and the responsibility of selection should also carry with it the onus of responsibility for any risks arising either in connection with negligence on the part of the employer or of any of his servants. The right of selection is entirely personal on the part of the employer or his agent. If because of incompetence on the part of an employer or an employer's officials, or by reason of the negligence or incompetence of a fellow workman, injury is caused to another workman it is unfair and unreasonable that an employer should be able to evade his obligations.
A large number of changes in the conditions of employment, and many economic factors have come into existence during the last few years which make the possibility of accidents through mistakes or incompetence, or negligence on the part of fellow workers, much more evident to-day than was the case years ago. There has been the introduction of machinery, which has a tendency to group workers together and make them more dependent on one another than they were 30 or 60 years ago. The risks of accidents occurring through negligence on the part of a fellow worker are more frequent to-day, and there is a tendency for these risks to increase. These changes in the conditions of employment are not the result of anything the worker has done; they are the outcome and should be the responsibility of the employer. Take again economic conditions as they apply to-day. There is an intensified 737 competition for labour, the problem of unemployment, piece work methods, all of which have a direct bearing on the mentality of the workers in our various industries. Therefore, I cannot see any justification why, in the case of any accident occurring as a result of the negligence of the employer, his agents or officials, it should not carry with it the responsibility of the employer to indemnify the injured worker. I welcome the Bill for these reasons. I wish it had been a more comprehensive measure and had covered a large number of the inequalities which now exist. I hope the House will accept the Bill and place it on the Statute Book as soon as possible.
§ 1.49 p.m.
§ Sir JOHN WITHERS
I have the greatest pleasure in supporting the Bill. The doctrine of common employment is now absolutely obsolete. It was invented years ago at Common Law for the protection of the employer when the worker was not in a position to defend himself as he is now. It arose from the old legal doctrine volenti non fit injuria, that is to say, that if a worker chooses to work with another workman he does so at his own risk. That was the ground upon which the doctrine proceeded. A case decided in 1837, is about the best example. The plaintiff was the employé of the defendant, a butcher, and he was injured in his master's cart on account of it being overloaded by another employé. It was held that plaintiff's master was not liable because of the negligence or incompetence of the fellow servant who had overloaded the cart. That was the position at Common Law. The Workmen's Compensation Act made great inroads in this matter, and has done away with it in many cases, but there are a certain number of cases to which it does not apply and to which the doctrine of common employment does still apply. For instance, to members of the Army, Navy and Police; secondly, to persons earning more than £250 per annum, otherwise than by manual labour; thirdly, to casual employés, otherwise than in trade or business; fourthly, to outworkers; fifthly, to members of the employer's family living with him; and, lastly, to persons temporarily hired from another firm. I think it is time that these absurdities should come to an end; that this absurd doctrine should come to 738 an end, and that employers should be liable for the negligence of anybody in their employment.
§ 1.51 p.m.
§ Mr. TINKER
I find myself in a rather curious position. Hitherto the hon. and learned Member for Norwood (Sir W. Greaves-Lord) and I have always been at variance on questions of compensation. Up to this morning I have always regarded him as looking at these matters from a different point of view, but after hearing his speech this morning I must admit that there are good grounds for a Bill of this character, and I shall support the Second Reading. The hon. and learned Member is well versed in these matters, and this morning has given us a resumé of a position, with which some of us were not familiar. I was not aware of it. When the Bill was printed, I looked first at the names of those who were supporting it. I am afraid that we on this side of the House are always suspicious of hon. Members on the other side. At any rate, I always look to see the names of hon. Members who are supporting any Bill, and I am suspicious if there are no Members of the Labour party. I saw the name of the hon. Member for Bodmin (Mr. Isaac Foot) on the back of the Bill, and that caused me to make some inquiries as to what the measure meant. I wondered what point of view the Bill was putting forward, whether it was for the benefit of the worker or otherwise. I wanted to find out whether there was any change in the outlook of hon. Members opposite, and I am glad to say that they are in this Bill following a line of thought which generally comes from this side of the House.
§ Mr. TINKER
I am afraid that I have not noticed it up to the moment. I support the Bill because I want to give all the protection possible to the worker. An employer has the right to engage his workers and, therefore, it is his duty to see that he engages the type of man who will not endanger the life of his fellow workers. It is his duty. He has the right to employ, and when he does that he should see that he is protecting all his workmen. Assuming that the Bill means that, we heartily support it. The hon. and learned Member for Norwood re- 739 ferred to medical expenses. Later on we may persuade the hon. and learned Member and other hon. Members opposite that medical expenses should be obtainable in all cases. I do not see how a line can be drawn, let us be candid with hon. Members opposite. I want to bring in much greater recompense than men get now. I think they are entitled to it. It a man is injured in his occupation his household income ought not to be lowered in consequence. If he is deprived of the opportunity of earning wages he is entitled to full wages while he remains idle because of injury. I do not think any one can argue that he is not entitled to medical expenses. I would like to debate that point with any hon. Member opposite. I do not think it is possible to put forward a case against my argument.
Later we hope to get the assistance of hon. Gentlemen opposite in securing an Amendment of the Workmen's Compensation Act. This Bill is certainly a step in the right direction. I do not know how many cases it will involve. I do not know whether it means greater expense to the employer, or whether it will mean that he would have to be more careful as to whom he employed. I have not found out many cases to which the Bill would apply. I certainly cannot remember many in the trade to which I belong. But if the Bill means only six outstanding cases in a year it will give to the workmen a confidence and security which have been overlooked for many years. The last speaker told us that there had been many attempts made since 1837 to get the law amended. Now is the time for a National Government which claims to represent all interests to put the matter right. On this occasion they will get the help of the Opposition, and it is not often that we can offer that.
§ 2 p.m.
§ Mr. LOVAT-FRASER
I am glad of the opportunity of giving a kick to a doctrine of English law which, since it was initiated in 1837, has perpetrated an immense amount of injustice amongst workmen. Carrying my memory back to the earlier years of my life, before the Workmen's Compensation Act was introduced, I can remember specific cases of grave injustice, generally in the case of women, done because negligent 740 employers escaped the consequences of their negligence. The doctrine is less than 100 years old. As has been said, it was introduced in 1837. It was laid down by Lord Abinger and has been followed ever since. One of the ablest of British lawyers was Lord Esher. Giving evidence before a Commission in 1877 he condemned the doctrine in the strongest terms, and from time to time eminent judges have pointed out how unsatisfactory it was. The position has been explained by the hon. and learned Member for Norwood (Sir W. GreavesLord) with his usual clarity and lucidity. He put the case so clearly that I need not detain the House by pressing the matter, but it does give me satisfaction to give a kick to a doctrine that has done much injustice to the workers of this country.
§ 2.2 p.m.
§ Mr. McENTEE
I would like to congratulate and thank the hon. and learned Member for Norwood (Sir W. GreavesLord) for introducing the Bill. It is true that it is not a big Bill. Perhaps the statement made by the last speaker will explain why an injustice that appears to be admitted by everyone has not been abolished hitherto. The hon. Member said that the doctrine was less than 100 years old. It is perhaps one of our British characteristics that we never redress an injustice until it is at least 100 years old. If the Bill becomes law I think it is true to say that every act of negligence will come under it. In my personal experience of the building industry I have known of hundreds of cases. There is no doubt that every year there are hundreds of cases in which a man is puzzled to know why he cannot proceed under common law. He knows from his connection with a trade union, or from advice given by a trade union that he cannot proceed under the Workmens Compensation or the Employers' Liability Act, but he may have heard that there are other means of recovering damages where the negligence of a fellow-workman is admitted, but that that source of justice is barred to him. He therefore feels that he is being unjustly treated because the court of justice which is open to other people in similar circumstances is closed to him.
I could give many instances within my own experience of accidents in which people have been seriously injured by 741 the almost deliberate neglect of fellow-workmen. I could give examples by the score. In the case of many buildings there is a great rush if the building has to be opened by a certain date, and the foreman is speeded up by the manager or perhaps by the employer. He is told that he must get the job done. The workmen are then compelled to get on to scaffoldings that are known to be unsafe. They are compelled by the action of the foreman either to take risks which an ordinary foreman ought not to be compelled to take or to throw up their jobs. If, as a result, an accident occurs and they suffer injury they have under the Common Law no opportunity such as other people would have of getting damages which would include not only compensation for actual loss of wages but the cost of medical attention and some adequate compensation for the personal suffering inflicted upon them. Everybody with any sense of fairness will support the principle of this Bill. I hope the Government will give it the facilities which they alone can give and do away with one of the grossest injustices on the Statute Book to-day.
§ 2.7 p.m.
§ Mr. ESSENHIGH
I was not here when my hon. and learned Friend the Member for Norwood (Sir W. Greaves-Lord) addressed the House but I am certain that he explained with his usual clearness the meaning of this Bill. For that reason I do not propose to go into the question of common employment further than to give one example of how this doctrine may operate most unfairly against a certain class of people. Speaking from memory I think anyone who is in receipt of more than £350 a year is not covered by the Workmen's Compensation Acts. Hon. Members opposite will agree with me—or I should say, perhaps, that I agree with them—that there is a great deal of hazard and danger involved to those who work down the pits. I wish to give the case of an underground manager who is in receipt of more than £350 a year and who through the negligence of someone who is working at the surface, a worker who has let go one of the tubs, or in some such way, sustains injury and perhaps loses his life. What is the position of such a man at the present time? If he is injured he cannot recover any 742 damage. If he is killed his widow or other dependants cannot recover compensation.
During the short time that I have been a practising member of the Bar this doctrine has struck me as one which operates very harshly and unfairly indeed, particularly against those in the class I have indicated. It may be asked why should we differentiate between various classes. Why allow a certain class to have a preference because they happen to have been injured through the negligence of their fellow workmen, over and above those who are able to receive workmen's compensation only? But we already have what one may call, for want of a better term, a favoured class. A person who is injured in those circumstances may call in aid any breach of or any statutory offence under the Factories Acts, as the doctrine of common employment does not they apply. Therefore the answer to those who put forward the argument which I have just described is that it does not hold water for one moment.
When settling pleadings, or looking into the question of whether an injured person had or had not a case at Common Law, I have gone through certain statutory rules and regulations made under the provisions of the Factories Act, and, as I say, I have found that at times this doctrine has acted very harshly and unfairly. There is no reason to my mind why a person who is injured owing to the negligence of a fellow servant should not be in the same position as a man who is knocked down on the highway. The master should be made liable and the injured party should not be one penny out of pocket for putting himself, as far as possible, in the same position as he was in before the accident. We shall probably be told that the proposed change may add to overhead charges. I do not think it will add anything worth speaking of to overhead charges. If people employ men in factories and at dangerous trades and occupations, the least they can do is to insure properly against accidents which may occur owing to the negligence of their servants. I have pleasure in supporting this Measure.
§ 2.14 p.m.
§ The SOLICITOR-GENERAL (Sir Donald Somervell)
This Bill raises a very important issue, and I shall suggest 743 to hon. Members that the real point which is involved in making up one's mind as to whether it ought to pass or not has not been brought out as fully in this Debate as it might have been. We have had several speeches in favour of the Bill, and my hon. and learned Friend the Member for Norwood (Sir W. Greaves-Lord), whose knowledge of, and interest in, this subject is so well-known, has given the House an admirable survey of the history of the matter and the present position. I want to supplement that survey to some extent by offering certain considerations different from any which have been brought out so far. It is quite true that we must start with the general principle of our law that a master or employer is liable for damage done by the negligence of his servants, provided it is negligence in a field where under the Common Law there would be liability. That doctrine was modified by the doctrine of common employment. It is no part of my case this afternoon to defend the doctrine of common employment. It has been very much criticised. I may quote what was said about it by Mr. Justice Neville as recently as 1917:The doctrine of common employment appears to me a purely arbitrary and artificial rule founded upon neither principle nor, prior to 1837, authority; a mere excrescence on the Common Law, devised, apparently, for the purpose of exempting a particular class from an otherwise universal liability. The best to be said for it probably is that it was considered at the time of its invention to be in furtherance of public policy inasmuch as the application of the law as it stood might operate to the discouragement of the employment of labour. The rule, however, to-day is established beyond question, and it cannot be disregarded by the court.It was founded, as the hon. and learned Member said, on the idea that you implied in a contract of service a term that the worker took the risk of the negligence of fellow-servants. The result of that was, as he pointed out, that in Common Law the only ground or right of action against the employer was for his own negligence. No doubt from 1837 onwards this matter was questioned. Certainly from 1875 onwards the matter became what I may call acute in this House, and Bills were introduced, there was a Select Committee, and in 1880, as a result, the Employers Liability Act of that year was passed which did away with the defence 744 of "common employment," broadly speaking, so far as superintendents, foremen, or plant and machinery were concerned, with a limit to the right of compensation.
Perhaps the House will bear with me, because I think this is perhaps an important point in connection with this Bill. That Act having been passed in 1880, an acute controversy arose in this House as to masters and men contracting out of it. There was nothing in it and there is nothing in my hon. and learned Friend's Bill to prevent an employer and employed person contracting out. I think it is fair to say that in most cases where employers did contract out of the 1880 Act the alternative terms offered were such as could not properly be criticised. In some cases no doubt they could be criticised, and there was a movement, by Members in this House to forbid contracting out, or rather to see that contracting out was only on terms which were fair to the workmen. That was an acute controversy, and so far as I can see, if this Bill is to be passed it is likely to raise that controversy again, because, unlike the Workmen's Compensation Act, there is nothing in my hon. and learned Friend's Bill to prevent contracting out, not in its terms nor in its general idea of getting the atmosphere of the Common Law into this matter, it might be contrary to its idea to forbid contracting out. That seems a serious difficulty to which we may be brought back if this Bill is passed.
On the question of contracting-out and common employment, Mr. Burt—a very well known name—introduced a Bill in 1890, very much on the lines of my hon. and learned Friend's Bill to-day, but that Bill was not passed, and Parliament arrived at what, I think, I may describe, without pressing the word too hard, as an alternative solution of the problem which had been raised by the admitted anomalies of common employment. Parliament then said: "We will not abolish common employment, but we will adopt quite a new principle. We think it right that a worker who is injured in the course of his employment should get compensation, negligence or no negligence. That is to say, we will put on the employer a liability quite unknown to the Common Law; a liability in the direction of insurance." I have heard the hon. Member for Leigh (Mr. Tinker) make speeches, in 745 a slightly different connection, and I think he would like to give the principle a further push in the direction of insurance, but it was undoubtedly the idea underlying the Workmen's Compensation Act that workmen within its terms should be insured to some extent against any injury received in the course of their employment. Successive Acts, of course, have extended the principle. In 1900 the agricultural labourers were brought in. The Act of 1906 was the big extension, and the Acts are now consolidated in the Act of 1925. There have been one or two minor Amendments since.
May I point out how much beyond anything that could conceivably be regarded as ordinary Common Law liability are the principles laid down by Parliament in those Acts. Compensation is payable whether there is negligence or no negligence. Further, the fact that the workman has contributed by his negligence to the injury which is a defence at Common Law, is no defence. Under the latest Acts, even serious and wilful misconduct which precludes getting compensation for partial incapacity is no defence, in the case of death or serious disablement. So that Parliament has imposed on employers, liabilities quite unknown to our Common Law—liabilities which were not contemplated by Common Law as liabilities at all. What I am suggesting to the House to consider is whether there is not some inconsistency between now, as it were, going back to the other solution and putting on employers—and I am one of those who think that employers as well as employed contribute to the health of our body politic—extended Common Law liabilities, whereas at the same time you are imposing on them the statutory liability for negligence or no negligence.
Of course, the object of this Bill and the reason behind it is the fact that Parliament having extended the area of liability, in the way I have attempted to describe, restricted the amount of compensation recoverable under the Act below the amount which would have been recoverable at Common Law. Imagine for a moment this case. A man gets a job with two alternative forms of contract. The master might say "You come into my employment, and I will pay you damages on the ordinary Common Law basis if I or my servants are negligent." That is one alternative. Or he might say, "You may prefer to 746 be paid, negligence or no negligence, if you receive any injury in the course of your employment, but the amount of compensation will be less than the full Common Law negligence scale, but, on the other hand, you will be able of course to draw it in many cases where you could draw nothing at Common Law." Surely one great advantage of the Workmen's Compensation Act principle is that it makes it unnecessary to go into the question of negligence or no negligence.
§ Sir J. WITHERS
As I understand it, a master must not employ incompetent fellow-servants under the Compensation Act.
§ The SOLICITOR-GENERAL
I am much obliged. It is true to say that Parliament has not been completely logical and has left a certain amount of old Common Law or quasi Common Law liability about, because it was not anxious to take away rights which were in existence.
§ Sir W. GREAVES-LORD
Mr. Joseph Chamberlain in 1897 pointed out that he was keeping the Common Law remedy available because in those cases where there was negligence there should be full damage, and Common Law remedy, weak though it is, I admit, is expressly kept alive in the Workmen's Compensation Act.
§ The SOLICITOR-GENERAL
I did not remember what Mr. Joseph Chamberlain said, but I will remember it in future. Parliament said, very naturally, "We do not want to take away any existing right."
§ Sir W. GREAVES-LORD
He expressly put two scales of payment, one, full damage, where there was any question of loss.
§ The SOLICITOR-GENERAL
He left the full scale for negligence in cases where it could be recovered at the time, but I should be surprised if he did not suggest that the principle of workmen's compensation was the right way of dealing with the problem that had arisen. I was saying that surely it is better that in these cases where workers are injured the matter should, if possible, be settled without litigation or with the minimum of litigation and controversy. That is 747 one of the great advantages of the Workmen's Compensation Act. My hon. and learned Friend the Member for Norwood, in a speech which he made in this House in a debate in the Autumn, I think it was, pointed out that of the 460,000 workmen's compensation claims settled in a year, only 1/2–3rds per cent. went to the courts, and of that 1/2–3rds per cent. only some 83 got beyond the county court and got to the Court of Appeal. I do not think my hon. and learned Friend would suggest that it would be possible for claims made under this Bill to be settled without litigation in a very large number of cases. There would be many cases in which the higher scale of compensation would naturally and inevitably, and quite rightly, encourage a workman to start proceedings, which would necessarily be controversial, which would in many cases be unsuccessful, and which would involve costs to both sides.
Another point that I would ask hon. Members to consider is whether, if there are cases, as I accept, where my hon. and learned Friend feels that the compensation paid is not sufficient, this is the right way of dealing with that matter, namely, to extend the number of cases and the area in which liability depends on negligence and contributory negligence. I do not know what views employers as a class will take as to this Measure. Certainly it is not conclusive of the merits of any Measure, what view one body or other that may be affected by it may take, but I suggest to hon. Members that at any rate they might say something of this kind. They might say, "You have put on us a very extended liability under the Workmen's Compensation Act. Is it really right now to put on an increased Common Law liability?" Unlike the suggestion made by one hon. Member, might they not, with some force, advance this Bill if passed, as an argument against any extension or development of the Workmen's Compensation Act?. That, I think, is worthy of consideration. With regard to the attitude of the Government on this Measure, of course, it is a free vote of the House, and hon. Members will make up their own minds. The case for the Bill has been put so strongly and ably that I am afraid that my speech may seem to be almost exclusively de- 748 voted to arguments against it, but they are put forward in no unfriendly spirit, and I think it is right that these reasons which the Government feel ought to be considered before the Bill is approved or otherwise dealt with ought to be borne in mind and weighed before hon. Members make up their minds as to what action they will take in regard to the Bill.
§ Question put, and agreed to.
§ Bill read a Second time, and committed to a Standing Committee.