§ 3.17 p.m.
§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The Earl of Drogheda in the Chair.]
§ Clause 1:
§ Common employment.
§ 1.—(1) The common employment of two persons shall not affect the liability to one of them of a third person for anything done or omitted by the other.250
Viscount SIMON moved to omit subsection (1) and to insert:
(1) It shall not be a defence to an employer who is sued in respect of personal injuries caused by the negligence of a person employed by him, that that person was at the time the injuries were caused in common employment with the person injured.
§ The noble and learned Viscount said: I have, as your Lordships see, three Amendments on the Paper, and I am not without hope that the Government may think that they would improve the Bill and accept them. The first Amendment is one of importance though it does not change the effect of the Bill in the very slightest. The first clause, in its first of two subsections, gets rid of what is called the doctrine of common employment, but, as I ventured to say on the Second Reading, it seems to me that the language of the Bill is not quite as clear as it might be. And it is very important that it should be clear, for this is a matter which affects, or may affect, the lives and interests of vast numbers of working people in this country.
As the subsection stands, the language is:
The common employment of two persons shall not affect the liability to one of them of a third person for anything done or omitted by the other.
I quite agree that, if you sit down and work it out, that means that the doctrine of common employment is abolished, but I think that one of the defects of the drafting is that it does not actually show, on the face of it, that what we are doing is that we are altering the law which concerns the responsibility of an employer to the person whom he employs. "Third person" really means the employer. What I suggest in its place is not original to myself. I quoted Mr. Asquith's language in the Bill of 1893, to the House on the Second Reading, and I think it was generally agreed that that was very much clearer in drafting; but this particular Amendment is really drawn from a later Bill (which never became an Act) introduced into the House of Commons by a very learned friend of mine, Mr. Greaves-Lord (now dead), who became a High Court Judge. Nothing, I think, could be plainer. What I suggest should be substituted is this:
It shall not be a defence to an employer who is sued in respect of personal injuries caused by the negligence of a person employed by him, that that person was at the time the
injuries were caused in common employment with the person injured.
§ Lawyers are often reproached for indulging in elaborate and difficult language. That is not altogether a just reproach, but, at any rate, this is an occasion when I hope lawyers and laymen can combine to make the matter as clear as it can be made. I beg to move.
Page 1, line 5, leave out subsection (1) and insert the said new subsection.—(Viscount Simon.)
§ The Lord CHANCELLOR (Viscount Jowitt)
I am very grateful to the noble Viscount, not only for this Amendment, but for the two Amendments which follow. He indicated in the course of the Second Reading debate that there was room for improvement here, and I realized the force of what he had to say. I therefore got in touch with him, and I got the Parliamentary draftsman to see him. In some senses he will agree that he has been ploughing with my heifer—I need hardly say with my full approval. I hope the draftsman does not mind being referred to as a heifer. In the result the noble Viscount and the "heifer" have together introduced these three Amendments which are manifestly improvements to the Bill. I am very grateful to the noble Viscount for the part he has played and I readily accept this Amendment.
§ On Question, Amendment agreed to.
Viscount SIMON moved to add to the clause:
(3) Any provision contained in a contract of service or apprenticeship, or in an agreement collateral thereto, (including a contract or agreement entered into before the commencement of this Act) shall be void in so far as it would have the effect of excluding or limiting any liability of the employer in respect of personal injuries caused to the person employed or apprenticed by the negligence of persons in common employment with him.
§ The noble Viscount said: This is the second Amendment which has been framed with the help—which I very gladly acknowledge—of the Lord Chancellor himself and those who are in his stall. This is a new point. It is not in the Bill at all at present and, as I ventured to say on the Second Reading, I think it ought to be. If we lay down a law such as we are laying down, which secures to the workman his rights in certain respects, generally speaking we ought not to leave 252 it open for a private bargain to be made between the employer and the workman by which, in return for some benefit—and possibly some substantial benefit like a contribution to an insurance fund—an agreement whereby the workman waives his rights is reached between the parties. Mr. Asquith's Bill contained this provision. He saw this point, and if you read his speech on the matter you will see that he defended it vigorously. I am glad he did, although not everybody at that time agreed with him. You can talk about freedom of contract as much as you like, but, at any rate in cases where the relation between the two parties is extremely unequal, it is not reality of freedom which you always get. So, thanks to this united "agricultural" effort, I beg to move the words which the Lord Chancellor says he will accept. In effect, though in a different sense from the sense in which it is usually used in trade union circles, those words mean "no contracting out."
Page 1, line 9, at end, insert the said new subsection.—(Viscount Simon.)
§ On Question, Amendment agreed to.
§ Clause 1. as amended, agreed to.
§ Clause 2:
§ Breach of statutory duty.
§ 2.—(1) Where this section applies, a person shall not be liable, in an action for breach of statutory duty, to damages for personal injuries or death, if it is shown that it was not reasonably practicable to avoid or prevent the breach.
§ Viscount SIMON moved, in subsection (1), after "to," where that word first occurs, to insert "pay." The noble Viscount said: This is a very small point which suggests itself when one looks at the clause as it was printed at the time the Bill was introduced. In line 11 on page 1 there is the phrase, which I think is a little elliptical: "A person shall not be liable … to damages." I presume what is meant is "shall not be liable to pay damages." In the desire that that should be made clear, I beg to move this Amendment
Page 1, line 11, after ("to") insert ("pay").—(Viscount Simon.)
§ On Question, Amendment agreed to.
§ Clause 2, as amended, agreed to.
§ Remaining clauses agreed to.