SECOND READING. (Hansard, 21 December 1888)

§ LORD BRAMWELL
said, that one reason why the working classes had so earnestly promoted Employers' Liability Bills was because they conceived that the present law inflicted an injustice upon them. They thought that that which was true of the rest of mankind was not true of them. If that were so, he would not blame them in the least for endeavouring to get the law set right; and with his whole heart he would help them if he thought so. But they were entirely wrong. He did not blame the working classes for entertaining the 948 opinion, because they held it on the highest authority. The Master of the Rolls had told them that they were right, and that the law was unjust to them; and therefore they were perfectly warranted in getting rid of it. He differed entirely from his noble and learned Friend, and he did so with the greatest confidence. Where there was no relation or contract between a person who was injured by the negligence of another person's servant and the master, the master was liable to the person injured by the negligence of the master's servant acting within the scope of his duty. As an illustration, he mentioned the case of a coachman who, in driving, ran over, by his negligence, a person in the street, a stranger with whom the master had no contract or relation. The master in that case was liable. But when there was a contract or relation between the master and the person injured, they must look to the terms of the contract and see whether or no there was a liability. In the case of the master and his servant who was injured there was a contract—a relation between them; and they were not strangers, as in the case of the person injured in the street. All that the law said was that where a servant was injured by the negligence of a fellow servant, the relation or contract between the servant injured and the master was not such that there had been an agreement on the part of the master to compensate his servant for injuries sustained by the negligence of another servant. If a man rode in an omnibus or railway carriage and was injured by the negligence of the company's servants, he had a remedy against the company; but if a man met a friend on the road and gave him a ride gratuitously, and afterwards by the negligence of the servant of the owner the friend was injured, the latter had no remedy against the master of the servant. If a man went into a shop or an hotel, and by the negligence of the servant in the place sustained an injury, he had a remedy against the owner of the shop or the hotel. But if he went into a friend's house, and, under precisely similar circumstances, sustained an injury, he had no remedy against his friend, because it was no part of the terms of relationship between them. What the law said was that in the 949 ordinary case of a servant, the master had not agreed with the servant to be liable for the damage done to him by a fellow-servant. The law did not say that there might not be a bar gain to that effect; far from it. But it said that in the absence of any such affirmative bargain the master did not undertake to be liable for damage done by the negligence of a fellow-servant He cared not what the law was, so long as people were allowed to make their own bargains; but to say that such bargains should not be made, that master and man could not agree for higher wages and no liability, or lower wages and liability, was preposterous.

§ THE MASTER OF THE ROLLS (Lord ESHER)
said, that his noble and learned Friend had not convinced him, because he had heard his argument many times during the last 25 years. That there was any difference between his noble and learned Friend and himself as to what the law was could not be supposed What he had stated 20 years ago, and what he still believed to hold good, was that when the law was first declared it had been declared erroneously. The law had been declared that, although the master would be liable to any stranger for the negligence of his servant, yet, if a fellow-servant were injured, there was a contract on the part of that servant who was injured that he should not claim compensation. He believed that the law had no right to imply a contract on the part of the injured servant not to claim the same compensation as a stranger might. If the master were to be liable to anyone for the negligence of a servant, why should he not be liable to a fellow-servant for that negligence? The ground of the law was that a master was liable for the negligence of a servant as if he himself were in the place and doing the act of the servant with the same negligence. If the master actually did the same negligence, no one could deny that he would be liable; but it was said that the fellow-servant had contracted himself out of the claim for compensation. There was no expression of such a contract; it was an implied contract by the law, and the law ought not to have implied it, for there was nothing to justify such implication.

§ LORD BRAMWELL
I said that the servant has not entered into a contract that he shall have compensation.

§ LORD ESHER
said, that in his opinion the law, although it was the law, had originated in a mistake, and that mistake had made a difference as between fellow-workmen and other people.