§ Amendments reported (according to order).
LIABILITY OF CERTAIN EMPLOYERS TO WORKMEN FOR INJURIES.
§ LORD BELPER
moved in Sub-section (1) paragraph (b) to leave out "pay such compensation" and insert "any proceedings"
§ LORD BELPER
moved to leave out Sub-section (4), and to insert the following sub-section,—(4.) "If within six months an action is brought to recover damages independently of this Act for injury caused by any accident, and it is determined in such action that the injury is one for which the employer is not liable in such action, but that he would have been liable to pay compensation under the provisions of this Act, the action shall be dismissed; but the Judge, if he shall think fit, may himself proceed to assess such compensation and shall be at liberty to deduct from such compensation all the costs which, in his judgment, have been caused by the plaintiff bringing the action instead of proceeding under tins Act. In any proceeding under this sub-section, when the Judge assesses the compensation he shall give a certificate of the compensation he has awarded and the directions he has given as to the deduction for costs, and such certificate shall have the force and effect of an award under this Act.
§ LORD RATHMORE
said before the clause was passed he should like to refer to the notice of an Amendment he had on the Paper to leave out the clause as it originally stood in the Bill. The reason he gave that notice was that it appeared to him, and others who had great experience, that as the clause stood in the Bill it would be likely to hold out invitations to litigation in certain cases, and interfere with the policy of settlements on the line of friendly agreements and inexpensive arbitrations in a number of cases which it was the policy of the Bill to promote. He was bound to say that the alteration which had been made in the first clause, and the substitution of the Dew Sub-section (4) for the sub-section, as 1400 it originally stood, had entirely removed his apprehensions on the subject.
Amendment agreed to.
TIME FOR TAKING PROCEEDINGS.
§ LORD BELPER
moved in Sub-section (1), after "compensation," to insert "benefit." On the Committee stage of the Bill, he said, Lord Herschell made a criticism as to whether "compensation" or "insurance" covered all the matters which might be included in the purview of the Registrar under this clause. It had, therefore, been suggested that they 1402 should insert the word "benefit," which would no doubt make the matter clear.
Amendment agreed to.
THE EARL OF CAMPERDOWN
moved in Sub-section (4) to leave out "by the employer." He had, he said two reasons for proposing this Amendment. In the first place, he thought the words were calculated to convey a rather false impression of what the clause was really intended to mean, and, in the second place, he thought the clause would be better without them. In the Debate on Monday night, Lord Herschell pointed to these words as indicating that the schemes were to be administered by the employer. He believed that that was not the intention of the clause, and it was easy to conceive a case where the funds were being administered by some body which was composed largely, or perhaps mainly, of employés, in which some portion of those employés might obtain a majority in the governing body and might administer the funds in a manner to which a considerable number of the bénéficiaires might object. He thought that would be a very fair case for them to put before the Registrar and ask that the scheme should cease any longer to be certified on the ground that it was not being administered fairly.
§ LORD BELPER
said the Government were quite willing to accept the Amendment, leaving out the words "by the employer," on the ground that many of these schemes were administered by joint committees generally of workmen and employers. Very few were administered by employers alone, and it was just as important, whoever the funds were administered by, that they should be fairly administered, and that objection should be taken if they were not.
Amendment agreed to.
THE EARL OF CAMPERDOWN
said he had given notice of an Amendment to Clause 4, but if their Lordships would permit him, he would postpone it until their Lordships had discussed the Amendment which stood in the name of Lord Ellesmere, because it was possible, he understood, that it might not lie necessary for him to postpone his Amendment.
THE EARL OF KIMBERLEY
said it was merely a question of wording, but their Lordships would see that the clause did not read. Sub-section (4) ran thus,—If complaint is made to the Registrar of Friendly Societies by or on behalf of the workmen of any employer that the provisions of any scheme are no longer on the whole so favourable to the general body of workmen,and so on. Then, further on, the Subsection read,—or that satisfactory reasons exist for revoking the certificate, the Registrar shall examine into the complaint.Some verbal Amendment seethed to be required; perhaps the noble Lord would look into it before the next stage.
THE EARL OF ELLESMERE
asked their Lordships' kind indulgence for one who was not in the habit of addressing the House. Lord Camperdown had given notice to move to reintroduce words which stood in the clause as it was put before the House originally, and their Lordships would remember that Clause 4 was then in a form which by mutual agreement was considered unintelligible, and therefore a new clause, the present clause, was inserted on the Motion of Lord Belper. In the clause as it came up to the House there were certain words which Lord Camperdown wished to reintroduce—"within the scope of the trade or business of such undertakers." He had been pressed by persons connected with the cotton manufactures to bring this Amendment under notice, and it was proposed for the purpose of carrying out what appeared to have been the intention of the framers of the clause. The words, though the clause may have been badly drawn, must have meant something—must have been meant to convey some intention on the part of Her Majesty's Government, or of whoever caused them to be inserted. He did not know if they were introduced on the Motion of a private Member in the other House, and the object of his Amendment was to carry out what appeared to have been the original intention of the clause to deal with sub-contractors. A sub-contractor was generally understood to mean a person who contracted to do part of 1404 the work within the usual business of the Person employing him—he did not pretend to give a legal definition—and it was not generally understood to apply to a contractor who did some work which was in the words of the Amendment, ancillary or incidental to and not part of or process in the trade or business carried on. The Amendment would not prevent the undertaker being liable for compensation to a workman employed under any sub-contractor who did part-of the process of the trade or business of such undertaker, but it would release him from liability to pay compensation to a workman employed by a contractor to do work which was not incidental to his own trade. To give an illustration which had been mentioned in the course of Debate in Committee, suppose a contractor undertook to paint a mill or factory, if he rightly understood the Bill, if an accident occurred to the painter or his man, by his falling off a ladder, the owner of the mill or factory would be liable to the payment of compensation. But if the undertaker or mill owner engaged the same contractor to paint his residence, and in carrying out the work a similar accident occurred, then under this Bill the owner would not be under liability to pay compensation. This appeared to be rather a curious state of things, and he could not help thinking that when the Bill came up from the other House, and the words he had quoted showed it, this was not intended. He did not know if the Government intended it now; he hoped they did not. It seemed absurdly unfair to make a man liable for compensation to a workman over whom he had no control, and whose competence for the work he had no means of judging. The clause as it stood provided that the undertakers should be entitled to be indemnified by the person who, independently of this section, would be liable, and he had been told, he had not sufficient legal knowledge on which to form an opinion, that this proviso would not work properly. A sub-contractor's workman might claim against an undertaker and get his award, and then when the undertaker went to be indemnified as under the Act he would be entitled to do, the sub-contractor might say, "No, I shall plead contributory negligence," or some other excuse, and he might decline 1405 to pay except as the result of long litigation. In a case of this kind, where the sub-contractor was a man of substance, say, for instance, a large engineering firm under contract to set up machinery, there would probably be no difficulty—and if one of their workmen were injured they, upon compensation being awarded, would pay without hesitation. Why then should not the claim be paid directly, why should there be two claims, one to indemnify for the other? On the other hand, if the sub-contractor were a small man, why should not he be equally liable? Of course, he knew the answer would be the undertaker should only deal with solvent contractors. That was all very well, and possibly that would be one result of the passing of the clause in its present state; but did the House really wish to snuff out all small and struggling employers, who, though only employing a few hands, yet would rise in scale of importance? Why should that be? The words of the Amendment supplied to him—they were not exactly his own—would, he believed, carry out the intention with which he had spoken. Apologising for hiving detained the House, and thanking their Lordships for listening to his explanation, he moved in Clause 4 "section 1," to add—and that undertakers who have contracted with any other person to execute on, in, or about any works or premises, as defined by Section seven of this Act, any work which is merely ancillary or incidental to, and is no part, of, or process in, the trade or business carried on by such undertakers, shall not be liable to pay compensation under this Act in respect of any accident to the workmen of such contractor whilst engaged in executing such work.
§ LORD HERSCHELL
recognised the object of the Amendment as being to restore to the clause the meaning originally intended when it came up front the other House, but he suggested that without any alteration in substance the Amendment should take a different form. As now proposed, it would form part of the proviso, but in that form it would not be so clear as it might be if the words down to "any work," in the fourth line, were omitted, and then the words added at the end of the proviso.
THE EARL OF CAMPERDOWN
said a few words from himself in support of the Amendment would obviate the necessity for his troubling the House again. The reason for an Amendment of this sort was that Clause 4, as it now stood in the Bill, was quite different from the clause as it came up to their Lordships. He quite admitted that the original clause was not in good grammar and unintelligible, and it had been said that the present clause substantially carried out what was the intention, but in reality, this substituted clause now in the Bill was very much more extensive than the clause sent up from the Commons, inasmuch as it now applied to any work of any kind or sort, while originally the clause referred to any work within the scope of the trade or business of the undertakers. It was a substantial difference, and it came to this, that if the owners of a factory or a railway were to enter into a contract with any contractor for any purpose whatsoever, they would become liable for compensation in the event of an accident to the contractor's man, simply because, besides having entered into the contract, they also had a railway, or were possessed of a factory. If it was the intention of the Government, as he believed it was, that the clause should be substantially the same as that which came up to the House, they would accept the Amendment either in its original form or as amended by Lord Herschell.
§ THE PRIME MINISTER (The Marquess of SALISBURY)
said that Lord Camperdown had stated rightly the object which the Government had in the Bill, and he and Lord Ellesmere were evidently speaking with the sympathy of the House when they said it was perfectly impossible to understand the clause as it came up to the House. He believed the words which had been proposed by Lord Ellesmere, amended by the noble and learned Lord opposite, would attain as nearly as it was possible to attain what they desired to get in this clause, but he did not think they would he justified in imagining that any words which they could draw up would provide a perfectly safe and reliable line in matters which were so closely connected and interwoven as these two kinds of employment. They had done their best, and they must consign their little babe to fortune. There 1407 was nothing more interesting to those who had often watched Committees in the House than to compare the prophecies which were made as to the meaning of a particular clause with the actuality which afterwards was revealed in the decision of the Judges. [A laugh.] They had done their best, and this was the most whole-smile form in which they could possibly place this legislation.
Amendment, as amended, agreed to.
§ LORD TWEEDMOUTH
said the three Amendments which stood in his name were really consequential on a change which was made in the Bill in Committee. On Monday night he moved an Amendment which had for its object to bring within the continuous operation of the Bill workmen in shipbuilding yards and other cognate trades who did part of their work in the yards and part of it outside the yards. Lord Belper could not accept the Amendment as a whole, but so far as shipbuilding yards came under the definition of a factory he was willing to accept the proposition. The noble Lord rested his case on the necessity of confining the Bill strictly to workshops which came under the definition of factory in the Factory Acts. In these Amendments he had endeavoured to meet the noble Lord's objection. In the first place, for instance, he proposed to insert after "yard" in line 40, Clause 7, "or factory where iron or steel plates, bars or girders are fixed or riveted."
, regretted that he could not give any more favourable reply to the noble Lord than he gave on Monday. In the other House there was a promise to consider whether it was possible to meet the case of men working outside shipbuilding yards, and it was in pursuance of that promise that an Amendment was put down in his name. He was informed that if the Amendment were accepted it would lead to the admission of other cases besides those contemplated by the noble Lord. On this stage it was impossible to make any further extensions.
§ LORD TWEEDMOUTH
reminded the noble Lord that the promise given in the other House was not confined to men working in shipbuilding yards.
Amendment, by leave, withdrawn.
APPLICATION TO WORKMEN IN EMPLOYMENT OF CROWN.
§ Amendment made: In Sub-section (2) leave out "may" to "certified," and insert "frame a scheme with a view to its being."—(Lord Belper.)
COMMENCEMENT OF ACT AND SHORT TITLE.
moved to leave out "thirty-first day of March" and to insert "first day of July." On Monday night he withdrew an Amendment to this effect, because he understood the noble Lord in charge of the Bill was prepared to consider the point. He sincerely hoped his noble Friend had been able to give the question favourable consideration.
§ LORD BELPER
said there was considerable force in the arguments the noble Lord advanced on Monday night, and the Government were willing to accept the Amendment. ["Hear, hear!"]