BILL PRESENTED. FIRST READING. (Hansard, 9 February 1880)

THE LORD CHANCELLOR,

in moving for leave to bring in a Bill to amend the law relating to the liability of employers for injuries sustained by their servants, said: This is a subject that has attracted of late years very considerable attention; and therefore I would ask permission to say a very few words as to the nature of the measure, and the course which the Government intend to take with regard to it. Your Lordships have, no doubt, observed that according to the existing law an employer of labour, if his servant sustains injury in the course of his employment by reason of the personal negligence of the employer, is liable to pay compensation. But, on the other hand, he is not liable if the injury is sustained in consequence of the negligence of another servant, the two being engaged in a common employment. That state of the law has been very much complained of on the part of those who are affected by it, and two alternative amendments of the law have been proposed. Some persons have proposed that the law should be altered in this way—that the employer of labour should be liable to all those in his employment for the negligence of his servants, just in the same way as he is liable to the outside public—that is to say, that an employer of labour should be a kind of insurer in reference to any accident sustained by his workmen. That is the change of the law that is proposed in the interests of workmen. There is another proposed amendment of the law, which does not go to the same extent. An employer is now liable for personal negligence, and 261 it has been proposed that where an employer does not himself act, but delegates the functions of authority, of supervision, and of command to third persons who take his place, he should be liable for the negligence of those to whom he so delegates his authority. The subject was considered very carefully by two tribunals, whose opinions entitle them to the greatest weight. In 1877 there was a Royal Commission to inquire into the subject of Railway Accidents, and in their Report they made this recommendation— We recommend that in any action against a railway company for compensation for the death or injury of a servant through the defendants' negligence, the officials whom the company intrusts with executive authority shall no longer be deemed to be merely the fellow-servants of their subordinates; or, in other words, that where a railway servant can establish against any official of the company empowered to direct the act or control the matter complained of such proof of negligence as would make him liable if he were himself the master, his negligence shall be deemed to be negligence on the part of the company. We do not intend, moreover, that this should apply only where the injured servant is the subordinate of the official in default and in the same department of work, but that the company should in every case be liable to its servants for the negligence of those to whom it delegates its authority as master. That is the recommendation of the Commissioners; but it would be very difficult to put into the language of a Bill the kind of servants that was referred to in general terms. In the same year there was a Select Committee in the other House that considered the subject; and, in the first place, I should state to your Lordships the terms of the Reference to that Select Committee. They were— Appointed to inquire whether it may be expedient to render masters liable for injuries occasioned to their servants by the negligent acts of certificated managers of collieries, managers, foremen, and others to whom the general control and superintendence of workshops and works is committed, and whether the term 'common employment' could be defined by legislative enactment more clearly than it is by the law as it at present stands. That was in the Reference to the Committee, and they made their Report almost unanimously that— There can be no doubt that the effect of abolishing the defence of 'common employment' (as has been actually proposed in a Bill submitted to the House) would be a serious disturbance in the industrial arrangements of the 262 country. Sooner or later the position of master and workman would find its level by a re-adjustment of the rate of wages, but in the meantime great alarm would be occasioned, and the investment of capital in industrial undertakings would be discouraged. … Your Committee, therefore, are of opinion that no case is made out for any alteration in the law relating to the liability of employers to their workmen for injury in the course of their employment, except in the matters to which they now proceed to refer. … The development of modern industry has created large numbers of employing bodies, such as corporations and public companies, to whom it is not possible to bring homo personal default; and there are other cases in which masters leave the whole conduct of their business to agents and managers, themselves taking no personal part whatever either in the supply of materials or in the choice of subordinate servants. Your Committee are of opinion that in cases such as these—that is, where the actual employers cannot personally discharge the duties of masters, or where they deliberately abdicate their functions and delegate them to agents, the acts or defaults of the agents who thus discharge the duties and fulfil the functions of masters should be considered as the personal acts or defaults of the principals and employers, and should impose the same liability on such principals and employers as they would have been subject to had they been acting personally in the conduct of their business, notwithstanding that such agents are technically in the employment of the principals. The fact of such a delegation of authority would have to be established in each case, but this would not be a matter of difficulty. Last Session the Government introduced a Bill into the other House of Parliament upon the subject, their object being to carry out, as far as they could, the general recommendations that had been made. Of course, it was a matter for much consideration in what words these recommendations should be expressed. Last Session we could not proceed with the Bill, and I propose now to lay it upon the Table, and to ask your Lordships to read it a first time. I will refer shortly to the general proposition which the Government would ask Parliament to lay down. It is that— If any person in the service of any employer in any railway, mine, manufacture, or works, is injured or killed by the negligence of a servant in authority of such employer in the course of his employment as such 'servant in authority,' and under circumstances in which, but for the fact of both persons being in the service of the same employer, the person injured, or if he was killed his personal representative, would have a right of action against the employer, such right of action shall subsist notwithstanding the fact of the common employment. Then comes the question, what is a servant in authority, and that is a matter 263 of immense difficulty. In the first section I propose to define that, in reference to railways, mines, manufactories, and works, and last year the definitions were subject to much criticism both on the part of the employer and the employed; and I am not surprised that there was criticism on both sides. But the question is, what is to be the best solution of a question which gave rise to criticism from two quarters of the kind to which I have referred? I will not read these definitions now; but I may say that the course which the Government desire to take is this—We do not anticipate that there will be any serious contest upon the general provision laid down in the second section of the Bill; and if your Lordships should assent to the Second Reading, we think that in no way can the question of the definitions of "servants in authority" be better considered than before a Select Committee of the House, where those interested on one side and on the other can be heard, whose evidence can be heard, and whose objections can be carefully and, I may say, judicially considered by those who compose the Committee. I would, therefore, ask your Lordships to let us now read the Bill a first time, and I may say it has only two sections.