Lords Sitting of 23 February 1877

EMPLOYERS AND SERVANTS—"COMMON EMPLOYMENT."

  MOTION FOR A SELECT COMMITTEE.
  EARL DE LA WARRsaid, he was about to ask the attention of their Lordships to the state of the law as existing between employers and servants in connection with the subject of what was termed "common employment;" and to move for a Select Committee to inquire into the present operation of the law, and whether any alteration or amendment of the same is desirable. He did so under a sense of the importance of the subject, which had been recently forced upon his notice as one of Her Majesty's Commissioners to inquire into the causes of Railway Accidents. It seemed to him to be one which required

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  immediate attention. He was aware it was a question which was not free from difficulties; and the law, as it now stood in relation to it, was uncertain both in its interpretation and its operation; and therefore, perhaps, he should best clear the way for any consideration which their Lordships might think fit to give the question if he first stated what appeared to be the law to which he was about to refer. The general law was that masters were liable to pay compensation for injuries done or caused by their servants in the ordinary course of their employment — of course, he confined his observations to civil liabilities only. Admitting, then, that there was a general liability of masters to pay compensation for injuries done or caused by their servants, he wished to point out some of the difficulties which arose, as it appeared to him, in a just and equal administration of the law. He believed it was the case that actions for compensation for injuries had become more frequent. That might partly be accounted for by the fact that there were now more companies who jointly carried on works in the place of individual masters—such as colliery companies, mining companies, railway companies, building companies, and other like companies. The company in those cases was the master, but they exercised little or no personal superintendence of the works which they carried on. The consequence was that these company employers bad become to a great degree not liable, in the eyes of the law, for the acts of their servants. Out of this had arisen the question of "common employment." There was no question of the liability of individual masters and companies to compensate strangers for injuries, but it had become a disputed question of law whether servants could obtain compensation for injuries caused by one to the other. There was introduced into the question the doctrine of what was termed "common employment," by which was understood that if two or more persons were engaged in the same occupation the master would not be liable for the injury caused by one servant to the other. And in that view of it, in the case of companies, it was still more against the interests of the servants than in the case of individual employers, inasmuch as the officers of the company—it might be the manager or foreman in mining
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  or colliery works, the superintendent or stationmaster of a railway, the engine-driver or other person in authority—were considered fellow - servants, and in common employment with those under them. Suppose, for instance, the foreman of mining works were to order a man to do some dangerous work. If the man disobeyed, he might be discharged; if he received an injury he could not recover compensation, because the foreman was in "common employment" with him; or again, if a railway servant was ordered by his superior officer to do some work, in doing which he was injured, he could not claim compensation for the same reason, because he was in "common employment" with the person who was over him. It appeared to him there was some hardship in that—he ventured to say some injustice. He did not think it was contemplated by the law. He knew it was said that when a man engaged himself in such or such work knowing the risks and dangers of it, he took the engagement with all the consequences; and perhaps that might be so. But that was a different matter from accepting risks that he could not know of when he made the engagement; because he did so supposing that all reasonable care and precaution would be taken to protect him against injury. But if he was injured through the negligence of the person in authority over him, or through defects of machinery or want of proper appliances which ought to have been provided by the master or company, it was surely a hard case that he should not be able to obtain compensation. If the accident arose from his own negligence it was, of course, another thing; but it could hardly be said of such a man that he had knowingly subjected himself to these unforeseen risks. Their Lordships must know how large a number of persons lost their lives by accidents in collieries, in mines, on railways, in building and in other ways. He was not able to give now any general statistics, but he could refer to the Returns of railway accidents, by which it appeared that in the year 1875 upwards of 4,000 railway servants were either killed or injured in connection with railways, and few, if any, of these could obtain compensation for themselves or their families. He did not propose to enter into a legal discussion; but it might be desirable to

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  remind their Lordships that a considerable difference of opinion did exist among legal authorities. He ventured to think their Lordships would agree that the interests—and they were very important interests — of a large number of the working classes in this respect should not be left under an uncertain state of law, resting as it did only upon the decisions of Courts, which were far from being unanimous. Judges, such as Baron Alderson, Chief Baron Pollock, Chief Justice Cockburn, and others had delivered judgments in cases of this kind; but they differed in important points; and Lord Justice Brett had recently declined to lay down any rule as to the principle on which the immunity of the masters rested, but that he was bound by the law and by the authority of decided eases to say that it did exist. Thus conflicting opinions of Courts of Law had in a great degree complicated the question; but, nevertheless, there was a simple and ancient maxim of the law—Qui facit per alium facit per se—which would seem to clear the way very much if it could be acted upon. If colliery or mining companies delegated their authority to a foreman or manager or any other person, it was surely only reasonable and fair that the company should be responsible and liable for the acts of those who were acting in their name and with their authority. It was clearly their duty to appoint competent and trustworthy persons over those whom they employed. In like manner, in the case of railways, superintendents, station masters, engine drivers, or any other officer, when acting with the authority of the company, should render the company liable in cases of accidents not only to the public, of which there was no question, but also to their own servants, unless negligence or want of due precaution could be proved on the part of those who were employed.
  Moved that a Select Committee be appointed to inquire into the present operation of the law existing between employers and servants in connection with the subject of "common employment," and whether any alteration or I amendment of the same is desirable.—(The Earl De La Warr.)
  LORD HOUGHTONobserved that questions of the individual cases were much mixed up with questions of law in this matter; and the real difficulty in dealing with the question was to place a
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  responsibility on the masters without affecting the sense of responsibility of the workman. Last Session a Select Committee of the House of Commons was appointed to consider this subject. He wished to ask whether it was the intention of the Government to propose the re-appointment of that Committee. If so, the adoption of the noble Earl's Motion for a Select Committee of their Lordships' House might lead to the waste of time of taking the same evidence a second time. The Committee had taken a great deal of evidence, and he thought it preferable that the inquiry should be continued by that Committee rather than that the subject should be taken up afresh by a Committee of their Lordships.
  EARL BEAUCHAMPsaid, the noble Baron who had just sat down had anticipated the answer he was about to give to the Question of the noble Earl. It was not his intention to follow the noble Earl through all the various legal questions on which he had touched, or to endeavour to persuade their Lordships that the law as it now stood was either wrong or right. Their Lordships ought to be reminded that last year a Bill was introduced into the House of Commons by Mr. Macdonald, the Member for Stafford, which dealt with this question. A short discussion took place upon the second reading of that Bill, during which his right hon. Friend the Secretary of State for the Home Department expressed an opinion that there were defects in the existing law, and the Bill was withdrawn on the understanding that the whole question should be referred to a Select Committee. That Select Committee was immediately appointed, and it contained representatives of the servants' as well as of the masters' interests; and was presided over by the right hon. Gentleman the Member for the University of London (Mr. Lowe). A good deal of valuable evidence was taken; but the Committee did not arrive at any conclusions. In its Report at the close of the Session it recommended its own re-appointment; and it was the intention of Her Majesty's Government to support that proposition. Therefore he thought, should that be the case, it would be inexpedient for their Lordships to embark on an inquiry which must either go over the same ground as that travelled over by the Committee of the

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  House of Commons or pursue a different line of inquiry. He need not point out that if their Lordships' Committee were to merely travel over the same ground as the House of Commons' Committee had been over, it would be a mere waste of time; and, on the other hand, suppose their Lordships diverged into "fresh fields and pastures new" there would be great inconvenience in the whole subject being divided between two Blue Books instead of being brought together in a Report of the House of Commons. He did not think it was alleged generally that the law was uncertain. He would not go into all the legal questions which had been raised by the noble Earl; but he believed he might say that by the law as it at present existed a master was bound to provide proper machinery and appliances, and that he was liable for injury done to his servants for the want of this proper machinery and appliances if it could be shown that he knew it was ineffective. Mr. Broadhurst, the secretary of the Parliamentary Committee of the Trades Union Congress, stated before the Select Committee last year that the number of accidents annually occurring were very few when compared with the number of men employed. He thought that showed that the employers of labour had recognized the obligations placed upon them, and that they had endeavoured to supply proper machinery and appliances. As he understood it, it was not so much the uncertainty of the law which was complained of as its hardness on servants who carried out the orders of those placed over them. He hoped his noble Friend would not think it necessary to press his Motion.
  EARL COWPERregretted that the Committee had not been conceded by the Government. He thought that a Select Committee of their Lordships' House might be trusted not to ask over again questions which had been answered to the Committee of the House of Commons, and as many of their Lordships had not very much to do at this period of the year, he thought that the House might very well agree to the Motion of the noble Earl. He hoped that the question would not be shelved. Seeing that in four years 9,000 of the class known to the law as "servants" had been injured, and no fewer than 3,000 had lost their lives, it must be admitted that a very serious case had been made out. There
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  was a widespread feeling that the existing law was unfair in respect of that class. He admitted that much of the proposed legislation with regard to railway accidents would have the mischievous tendency of destroying responsibility in those in whom it ought to be vested; but legislation to amend the law referred to by the noble Earl who proposed the Committee would have exactly the contrary tendency. He was only sorry that legislation could not be undertaken without further inquiry.
  LORD DUNSANYsaid, that in some quarters there was an idea that masters should be made responsible for all accidents sustained by those in their employment, if those accidents occurred while the employed were at work. This would be manifestly unwise. He thought there was a tendency to shift responsibility to the wrong persons. The workmen should be restrained by a sense of responsibility from those acts of' carelessness which in nine cases out of ten were the cause of the most serious accidents—especially in collieries. No employer could prevent his men from pulling out a lucifer match in the gaseous portions of his mine. He hoped, therefore, that there would be no legislation in a one-sided direction.
  EARL DE LA WARRsaid, that after the statement made on the part of the Government, he was willing to withdraw his Motion.
  Motion (by leave of the House) withdrawn.
  House adjourned at Six o'clock, to Monday next, a quarter before Five o'clock.