WORKMEN'S COMPENSATION ACT (1897) EXTENSION BILL. (Hansard, 6 July 1900)

THE EARL OF KIMBERLEY
I mentioned to the noble Viscount, when this Bill was last before us, two points on Subsection (2) of this clause. One was as to whether the expression "contractors" would apply to labourers who were employed themselves directly on piecework. The other point was as to the word "habitually." The noble Viscount was kind enough to say that he would look into the matter and say whether he was quite satisfied that the words carried out the intention of the Bill.

§ THE LORD PRIVY SEAL (Viscount CROSS)
Your Lordships are fortunate enough to have here the noble Lord who was Attorney General at the time this Bill was passing through the other House, and he will no doubt explain exactly the grounds on which these words can be justified.

THE EARL OF KIMBERLEY
My point was merely this. The word "habitually" is no doubt a very general word, and I merely expressed a fear, which I have no doubt the noble Lord will be able to dispel, that that word may lead to inconvenience and litigation.

§ LORD ALVERSTONE
I think I can explain the matter in a few sentences. I will first say what it was that we tried to aim at. Where a man tilled his own land, and as a rule never employed labour—perhaps his son worked with him—we considered that he should not come within the Act just because he happened to have a few labourers at harvest time. The word "perpetually" was suggested, and also the word "continually," but it was pointed out that employment of labour for six or seven consecutive days might bring a man within either of those words. Finally, it was determined to adopt the word "habitually" as one which has a distinct popular meaning. I ventured in the other House to give three illustrations, which I venture to think will commend themselves to your Lordships as they did to that House. The law does know something about the word "habitually." We have the "habitual drunkard"; that means a man who is not always drunk, but whose habit is to drink. We have the "habitual criminal"; that means a man who is not always committing crime, but whose habit is to commit crime. Thirdly, in another place I pointed out that we had (your Lordships would not say that we have here) the "habitual bore"; that is, a man who is not always a bore, but whose habit is to bore. It occurred to us that the word which most nearly expresses ordinary employment in a popular way would be the word "habitually." The matter was discussed for a considerable time, and nobody was able to suggest a better word. I think it is a good thing to have a popular word in an Act of Parliament of this kind, so that it may be construed in a popular sense; and the words, "any employer who habitually employs one or more workmen" will indicate the class of persons intended to be brought within the scope of the Bill.

THE EARL OF KIMBERLEY
I am much obliged to the noble Lord for his explanation. No doubt he is a very com- 765 petent judge as to whether this word would be likely to give rise to any difficulty in the courts. But I confess I should have thought that it was a word which, for the very reason that it was popular and vague, would be likely to lead to a good deal of dispute. However, I will not pursue the matter.

*LORD BERRIES
I should like to ask the noble Lord in charge of the Bill this question. It very often happens in agricultural districts that a man—perhaps a small holder of land—undertakes to plough or hoe land at so much an acre, with his own horses. In Sub section (2) there is this proviso— Provided that where the contractor provides and uses machinery for the purpose of threshing, ploughing, or other agricultural work, he and he alone shall be liable. Would horses be hold to come within those words? Suppose a man who contracts for this work takes a young horse of his own, and that young horse kicks him or his labourer, it would be rather hard that the employer should be liable to pay compensation.

§ LORD HENEAGE
I may mention another point of the same sort. It is a very common mode of procedure—in Lincolnshire, at any rate—for landlords' agents to let the loading of wood to a contractor. Who will be responsible for any injury which may take place in the loading of timber if it is done by contract and the carts belong to the contractor; will it come under the second sub-section or under the first?

§ LORD ALVERSTONE
I do not think there is any doubt that this Act will be read as one Act with the Workmen's Compensation Act of 1897. Therefore, the proviso in Section 4 of the latter Act will apply, and the position will be that there will be the remedy against the employer who has sub-contracted the work, and there will be the remedy over against the contractor by the employer if the circumstances are such that the law would give him a remedy. When once you include forestry (which, I presume, would cover the operations the noble Lord opposite has referred to), there is no distinction between the contractor employed for that kind of work and the sub-contractor acting under the original Act. With regard to the ques- 766 tion of ploughing land and work of that kind, the real question will be: Is there a sub-contract for agricultural work? If so, it would come within the provisions of the Bill, and the workman would have his remedy against the employer, with the remedy over to which I have referred.

§ LORD HENEAGE
I am afraid I have not made my point clear. At line 15 there is this proviso— Provided that where the contractor provides and uses machinery for the purpose of threshing, ploughing, or other agricultural work, he, and he alone, shall he liable under this Act to pay compensation to any workman employed by him on such work. Then, by Sub-section (3)— The expression 'agriculture' includes horticulture, forestry, and so on. Therefore, according to the Bill, as I read it, anything done with regard to woods would come under the proviso, and not under the original Act.

§ VISCOUNT CROSS
With regard to the question put by Lord Herries, I have an Amendment to propose to Clause 1— on page 1, in line 15, after the word "machinery," to insert "driven by mechanical power." That, I think, will meet the point.

§ LORD HERRIES
That would not meet the point I raised. I think "horses" should be introduced, as well as "machinery." It is possible that a contractor may make use of his own horse, and if he happened to make use of a bad-tempered horse, who kicked and injured him, the undertaker ought not to be liable.

§ LORD ALVERSTONE
In the special case that is put of threshing, ploughing, or other agricultural work, there is an express proviso that in that case the only person to be liable will be the person who contracts. I thought the noble Lord was asking about the general provisions of the Bill. In the special case he refers to it is quite clear that the sub-contractor only is intended to be liable.

THE EARL OF KIMBERLEY
I think what my noble friend is in doubt about is, whether that would apply to the case of horses. The words are— Where the contractor provides and uses machinery for the purpose of threshing or ploughing or other agricultural work. 767 Now, if he uses a timber-gill, which is a cart of a particular kind for carrying timber, if the horse that he happened to employ were, as my noble friend put it, vicious, and kicked a labourer, would the contractor be liable under the clause, and not the employer in the first instance?

§ VISCOUNT CROSS
That is why I ventured to call attention to the Amendment that is to be moved later on. When these words are in—"driven by mechanical power"—then the liability of the subcontractor will be confined exclusively to that case. Where it is the ordinary employment of horses and mechanical power is not used, the general provisions will apply. This proviso is only to deal with one particular case. The main point intended to be met was the question of threshing machines, which, as the noble Lord knows, employ power other than horses for the purpose of being driven.

THE EARL OF KIMBERLEY
The noble Viscount did not answer my question as to the contractor. I asked him whether he was quite satisfied that "contractor" would include an individual doing work by piecework.

§ VISCOUNT CROSS
That question has been very carefully considered by the legal advisers of the Department, and they are perfectly satisfied with the words as they stand.

THE EARL OF KIMBERLEY
I am rather puzzled by these words in Subsection (3)— Where any workman is employed by the same employer, mainly in agricultural but partly or occasionally in other work, this Act shall apply also to the employment of the workman in such other work. I think I am right in saying that "domestic servant" has never yet been included under the main Act; and it would seem in this case that if a workman was also employed as a domestic servant the employer would become liable for accidents occurring to the man in the performance of his duty as a domestic servant. That would be a very large extension of the original Act.

§ LORD ALVERSTONE
I am not at all surprised that the phraseology of this sub-section has raised the doubt expressed by the noble Earl. The governing words are— Employed by the same employer mainly in agricultural … work. You have first to find the servant who is "mainly employed in agricultural work"; then, if that servant happens to do something else, it may be domestic work, he is to get compensation for injury received in any work in which he is employed. The domestic servant who was not "mainly employed in agricultural work" would not be brought within the scope of the Bill. I agree that you have to make some division, and the dividing line is indicated by those words, "mainly employed in agricultural work."

§ LORD BURGHCLERE
There is an anomaly which is very patent on a little consideration of this sub-section. To follow out the argument of my noble friend a little further, we see at line 24— The expression 'agriculture' includes horticulture. I will put a concrete case. "Horticulture," I suppose, would cover gardeners. In many establishments the gardener sometimes does work in the stable. By the preceding clause it is obvious that if the man is employed partly or occasionally in other work he also receives compensation. Therefore, employed in the stable, he will receive compensation if he is kicked by a horse. But, then, this anomaly will occur. There may be a coachman or a helper in that stable, and, as the noble Earl the Leader of the Opposition has pointed out, by the original Act domestic servants are exempted from compensation. Domestic servants include coachmen and grooms. Therefore, the coachman who is doing work in the stable and who is kicked by a horse, would not get compensation, whereas the gardener who is there only for casual work, and is kicked by the same horse, would get compensation.

§ LORD ALVERSTONE
No one is more conscious of the anomaly than I am, but, to get over it, the noble Lord must move a clause extending the Bill to domestic servants. As long as you break up the servants into classes, then the class you are proposing to make the Bill apply to are to be those "mainly 769 employed in agricultural work." The anomaly simply arises from the fact that you bring your gardener within the scope of the Bill, and not the coachman. The only way to got rid of the anomaly is to extend the Bill.

THE EARL OF KIMBERLEY
I do not quite follow that. The anomaly is created by this Bill.

§ LORD ALVERSTONE
Certainly.

THE EARL OF KIMBERLEY
Then what is the necessity for the clause? If a man is employed in agricultural work, when he meets with an accident in the course of that employment he will be entitled to compensation.; but where is the necessity for extending that to the case of other work? It seems to me to be the gratuitous creation of what I think to be a most absurd anomaly—an anomaly which will not exist if this quite unnecessary clause is not put into the Bill. A man when he is employed in agricultural work will undoubtedly by the Bill be entitled to compensation; why should it be necessary, because he happens to be employed in agricultural work, to give him an additional privilege? There is no difficulty in getting rid of the anomaly by the simple method of striking out the words altogether.

§ LORD ALVERSTONE
I quite appreciate the anomaly to which attention is called, but the difficulty we had was this. We tried—I am speaking of those who then were discussing the Bill—to get rid of litigation as far as we could; and this difficulty was pointed out. Take the gardener, who prima facie comes under the Bill. Suppose he happens to be employed for an hour or so in doing some work which is not gardening, and meets with an accident. You would have immediately a controversy in the law courts as to whether or not he met with the injury in the course of doing one piece of work or another; and it was thought to be better that the man who came within the scope of the Bill should be within it for all the work that he did. I am not justifying the anomaly; but that was considered to be the best way of getting over the difficulty. It was thought better to distinguish between the classes of workmen, rather than between the classes of work.