(IJornpU ICaui i>rl|onl ffiibtary 
 
3 1924 088 291 319 
 
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FOUR LECTURES ON THE 
 
 LAW OF EMPLOYERS' LIABILITY 
 AT HOME AND ABROAD 
 
FOUR LECTURES ON THE 
 
 LAW OF EMPLOYERS' LIABILITY 
 AT HOME AND ABEOAD 
 
 AUGUSTINE ^RRELL, M.P. 
 
 ONE OF HER MAJESTY'S COUNSEL 
 AND QTJAIN PHOFESSOR OF LAW AT UNIVERSITY COLLEGE, LONDON 
 
 HonUon 
 
 MACMILLAN AND CO., Limited 
 
 NEW YORK: THE MACMILLAN COMPANY 
 1897 
 
 All rights reserved 
 
Richard Clay and Sons, Limited, 
 london and bungay. 
 
PREFATORY NOTE 
 
 These four Lectures formed part of a 
 
 longer course delivered by me during this 
 
 year at Lincoln's Inn as Quain Professor 
 
 of Law at University College, London. The 
 
 only reason why they were delivered in 
 
 Lincoln's Inn and not at University College 
 
 was the convenience of the students who 
 
 attended them. 
 
 A. B. 
 
 3 New Square, Lincoln's Inn, 
 June U, 1897. 
 
CONTENTS 
 
 I 
 
 THE employees' LIABILITY AT COMMON LAW . , 1 
 
 II 
 
 THE EMPLOYEBS' LIABILITY UNDEB, THE ACT OF 1880 . . 29 
 
 III 
 
 FOREIGN LAW AND SYSTEMS OP INSURANCE . 52 
 
 IV 
 
 THE NEW BILL ... . . . . . . 75 
 
 APPEND [X A 
 
 A BILL . 
 
 SCHEDULES 
 
 FIRST SCHEDULE .... 
 
 SECOND SCHEDULE 
 
 103 
 
 110 
 113 
 
 APPENDIX B 
 
 CHAPTER 42 . ... ■ . 117 
 
I 
 
 THE EMPLOYERS' LIABILITY AT 
 COMMON LAW 
 
 It was for a time the favourite theory of 
 Mr. Froude that our national movement, 
 that procession of affairs which, whether you 
 call it "progress," or by any other name, 
 exerts the strangest fascination over the im- 
 aginative student of history, was nowhere 
 else so faithfully recorded as in the preambles 
 to our Acts of Parliament. For a theory it 
 was not a bad one, but it applies only to that 
 time when preambles were long and enact- 
 ments short. Modern Statutes, for the most 
 part, have no preambles, our stingy legis- 
 lators being averse to give the judges any 
 clue to their meaning beyond the bare text. 
 Nowadays, however, important legislation 
 
 B 
 
t^ LAW OF EMPLOYERS' LIABILITY i 
 
 is usually, though by no means always, 
 heralded by discussion both in the House of 
 Commons and out of it ; and from the nature 
 of this discussion, and from the general object 
 of the legislation which is its outcome, the 
 observer may gain an insight into social con- 
 ditions and relations at least as trustworthy 
 as from those old and picturesque preambles 
 to which Mr. Froude was so much attached. 
 
 The great interest excited by and the im- 
 portance attributed to legislation affecting 
 the liability, whether civil or criminal, of em- 
 ployers towards their workmen for injuries 
 sustained by the latter in the course of their 
 employment, mark an epoch in our history. 
 Slowly, very slowly, the workman, the man 
 who lives by his arms and his legs on a weekly 
 or daily wage, has forced himself to the front, 
 and demands of the two sources of the law, 
 the legislator and the judge (and of theflaw of 
 master and servant the greater pa'ft/ has 
 sprouted from the brains of judges), that in 
 the consideration of the terms of the Contract 
 of Hiring, the facts of the case, as they press 
 upon the owner of the arms and legs, shall 
 have due prominence given them. 
 
1 THE EMPLOYERS' LIABILITY AT COMMON LAW 3 
 
 We were once a nation of shopkeepers, and 
 our ideas corresponded with our vocation. We 
 are now, so far as we have not all gone upon 
 the Stock Exchange, a vast industrial enter- 
 prise, carried on by night as well as day, by 
 shifts of men, and amidst "the hideous hum" of 
 machinery. The problems that to-day demand 
 solution, if justice is to be done between man 
 and man, require wider views and a set of 
 ideas which never crossed the minds of the 
 Temple-bred judges of the last generation, who, 
 perched on high, and usually amenable to no 
 more searching tribunal than two of their 
 Brethren sitting in Banco, not only inter- 
 preted with an easy mind contracts between 
 employers and their workmen, but read into 
 those contracts terms and provisions of which 
 neither of the contracting parties" had ever 
 heard, and few of them even yet understand. 
 
 This interest, this almost feverish interest, 
 is by no means confined to Great Britain. 
 The great wave of industrialism has gone over 
 the whole Continent of Europe ; and we are 
 accordingly well supplied with Blue Books 
 and Foreign Office Memoranda, from which 
 we may learn, with varying degrees of in- 
 
 B 2 
 
4 LAW OF EMPLOYERS' LIABILITY i 
 
 accuracy, what Germany and Austria have 
 done, and what France is still talking about 
 doing, in this matter of the arms and legs, 
 the hands and fingers, not to say the lives of 
 their huge working populations. Here at 
 home the Government has, as you must have 
 noticed, introduced into Parliament a Bill for 
 providing workmen with compensation for 
 accidents, which is now attracting — and well 
 does it deserve to attract — the friendly though 
 close and critical attention of millions of men, 
 employers and employed, to whose business 
 and bosoms it mightily appeals and closely 
 relates. 
 
 This fierce light beating upon our British 
 Themis is not only very trying to the com- 
 plexion of so elderly a dame, but proves very 
 disconcerting to her, upsetting, as it does, her 
 traditional methods, her ancient tests, and her 
 nicely calculated " less and mores." An emi- 
 nent Chancery practitioner, afterwards a Vice- 
 Chancellor, on being informed on one occasion 
 that the actual suitor in a litigation wished to 
 attend consultation, roughly forbade his doing 
 so, saying, " I will have no flesh and blood in 
 my chambers." No doubt flesh and blood are 
 
1 THE EMPLOYERS' LIABILITY AT COMMON LAW 5 
 
 very apt to disturb the mental repose of a 
 positive opinion, but they cannot be kept 
 out of either an Employers' Liability or 
 a Workmen's Compensation for Accidents 
 Bill. 
 
 Two facts of modern life have greatly 
 affected the question. One is machinery, and 
 the other is joint stock and limited liability 
 enterprise. Neither need detain me. Ma- 
 chinery is dangerous, and grows more so every 
 day. But last week I saw a young fellow, 
 twenty-five years old — a married man with 
 two children — both of whose hands had been 
 cut off by a printing machine. It was as 
 cleanly done as could be, but a terrible, an 
 afflicting spectacle. Could we collect together 
 on the 22nd of next June the vast army of 
 those who during Her Majesty's reign have 
 been maimed by machinery, it would be a 
 woeful sight and a melancholy commentary 
 on our methods of production. To dwell longer 
 on this aspect of the case would be improper, 
 but to forget all about it would be to leave 
 " Hamlet " out of the play. 
 
 As for joint stock and limited liability 
 companies, I will only say that in the opinion 
 
6 LAW OF EMPLOYERS' LIABILITY i 
 
 of some critics of the Human Comedy the two 
 most remarkable achievements of the Queen's 
 reign are the Companies' Acts of 1862 and 
 onwards, and the establishment of the Divorce 
 Court in 1857. 
 
 I hastily return to my subject ; and before 
 engaging in any of its subtleties, let us have 
 the courage to be elementary. I love the 
 elements of all questions, . even of geometry — 
 the pure mountain stream before it has become 
 defiled and discoloured by the garbage and 
 poisonous effluent of rival sophisters. 
 
 In all the codes and systems of law of Western 
 nations we find provision made for the pay- 
 ment of damages in respect of injury to person 
 or to property occasioned by negligence ; nor, 
 despite the refinements of lawyers struggling 
 to distinguish one case from another, the 
 wholly superfluous and unpaid malignancy of 
 metaphysicians and the tiresome pedantry of 
 grammarians, has any one ever doubted what 
 he meant by negligence. He means, and he 
 has always meant, the absence of that amount 
 of care which each man in this our social state 
 owes his fellow. What that amount of care is 
 in the circumstances of each particular case is 
 
I THE EMPLOYERS' LIABILITY AT COMMON LAW 7 
 
 another matter. Here we get our first peep 
 of that woeful vista, down which we see sport- 
 ing in the shade eminent judges and ani- 
 mated counsel ; solicitors in the well ; bags, 
 briefs and bills ; and there may we also discern, ■ 
 less obviously cheerful, the anxious suitor, the 
 bewildered witness, trying hard to remember 
 the diiference between the truth and what he 
 had said in his proof — perjury, misery and mad- 
 ness ! But so long as we stick to the blessed 
 elements we shall not be troubled with this 
 crew. But there they are, all the same, 
 awaiting us. 
 
 As a matter of law then, both at home and 
 abroad, this liability of one man to another to 
 make good a personal injury, sustained in 
 consequence of an absence of a proper 
 amount of care, is a branch of the law of 
 negligence. It begins and ends in negligence, 
 in a breach of duty — of the legal duty 
 I owe my neighbour not to hurt him. If I 
 meant him harm, if I wittingly lured him or 
 cruelly abandoned him to a fate I had pre- 
 pared for him, I am not careless but criminal ; 
 but if, wishing him no evil — nay, though over- 
 flowing with amiable sentiments towards him 
 
§ LAW OF EMPLOYERS' LIABILrfY t 
 
 — I yet do or omit to do something which I 
 ought not to have done or which I should have 
 dojie, and in consequence of my act or omis- 
 sion harm befalls him, I must pay what a jury 
 finds or agreement determines to be his due, 
 either in full, or such a dividend in the pound as 
 in the event of my bankruptcy may be offici- 
 ally declared. 
 
 Here then you perceive, staring you in the 
 face, on the very threshold of the subject, the 
 difference between the law of negligence and 
 the law of insurance or warranty against acci- 
 dent. The law very easily might have been 
 that every man warranted to the full extent of 
 his pecuniary capacity that never would he, in 
 any circumstances, occasion hurt to his neigh- 
 bour. But this is not the law, either at home 
 or abroad. 
 
 First example. — Driving my gig furiously, 
 or, as I should probably be forced to admit, 
 " at a smartish pace," down the High Street I 
 run over a chimney-sweep, who in a sober 
 fashion is crossing the road. He is in the 
 hospital for six weeks. Clearly I must pay. 
 I owed him a duty so to drive my gig as not 
 to injure him. I failed in my duty and must 
 
I THE EMPLOYERS' LIABILITY AT COMMON LAW 9 
 
 pay ; and this by tlie common law of England, 
 the birthright of every subject. 
 
 This example covers a great number of other 
 cases occurring in what Wordsworth has feel- 
 ingly called "the dreary intercourse of daily 
 life." 
 
 Second exaTnple. — Instead of driving the 
 gig myself, I being laudably anxious to fulfil my 
 duty to my neighbour and to love him as myself 
 and thus avoid all risk of paying damages, 
 employ a coachman who came to me highly 
 recommended by a timid old lady, in whose 
 service he had been as coachman for ten years 
 without a fault being discovered in him. On 
 engaging him I gave him the strictest orders 
 never to drive quickly down the High Street, 
 orders which he always obeyed until the hap- 
 less morn when he ran over a chimney-sweep. 
 He is, of course, liable — but then, so am I. 
 Now why ? What harm have I done 1 What 
 could I have done more than I did ? What 
 duty to my sooty friend have I broken ? 
 Negligence, we know, is such a lack of care as 
 in the circumstances . amounts to a breach of 
 duty. A person in my employment who is 
 fully competent to discharge the particular 
 
10 LAW OF EMPLOYERS' LIABILITY i 
 
 duty I entrust to him does something in de- 
 fiance of my authority and contrary to my 
 expressed wishes which injures somebody. 
 How am I negligent ? Why should I pay ? 
 
 The aid of Latin is, of course, invoked. 
 When in difficulties quote Latin. Respondeat 
 superior, it is said. But why should he ? 
 That is the whole question. Nothing is gained 
 by repeating a proposition which has been 
 challenged in another tongue. Respondeat 
 superior is the formula imposing the liability, 
 not a reason for the imposition. Driven out 
 of this cover, refuge is sought in the maxim. 
 Qui facit per alium, facit per se ; but this 
 maxim simply reeks of agency, and agency is 
 based upon authority, which may be either 
 particular or general, either express or implied. 
 Thus, if I authorise a house agent to sell my 
 house for £5,000, and he sells it for that 
 figure, I am bound qui facit per alium, facit 
 per se; but if he purports to let it go as a 
 great bargain for £3,000, I am not bound, for 
 I have done nothing per alium. It was the 
 alius who has tried to do something per me. 
 This is the case of particular authority. If a 
 man by his conduct holds out another as his 
 
I THE EMPLOYERS' LIABILITY AT COMMON LAW 11 
 
 general agent, by permitting him to act in 
 that character and deal with the world as a 
 general agent, he must be taken to be the 
 general agent for the person who so allows 
 him to act, and the principal is bound, even 
 though in the particular instance the agent 
 may have exceeded his authority. This no 
 doubt goes a long way, but it is all based 
 upon authority, express or implied, to do the 
 act in question. But who will say that a 
 coachman driving furiously down a street, 
 contrary to his master's orders, has implied 
 authority to run over a chimney-sweep ? 
 
 The only ground for this enormous exten- 
 sion of the law of negligence which covers all 
 the cases of injuries done to the outside public 
 by servants acting within the scope of their 
 proper employment, though in the course of 
 it flatly disobeying their master's orders, is 
 this : — If a man chooses to carry on the opera- 
 tions of his life and business by hiring others 
 to do the work for him, he can only be 
 allowed to do so on the terms of guaranteeing 
 the capacity of his servants to answer for acts 
 and defaults committed by them in the course 
 of the work he has ordered them to do. {^See 
 
12 LAW OF EMPLOYERS' LIABILITY i 
 
 judgment of Blackburn, J., in WilliaTus v. 
 Jones, 3 H. and C. 609.) 
 
 But, of course, the real pinch of the case, and 
 the social necessity for the rule, was to find 
 somebody to pay the chimney-sweep what 
 justice declared to be his due. Were coach- 
 men always what they only sometimes are, 
 men of fortune and able to pay for the luxury 
 of running over an occasional foot-passenger, 
 the sweep would have been content with his 
 remedy against the actual wrong-doer ; but 
 usually the owner of the gig is the more 
 responsible of the two, and therefore somehow 
 or another he must be made to pay. 
 
 Here, then, we get our first glimpse of the 
 logician and the moralist being shoved rudely 
 on one side in order to find somebody to make 
 it up to the chimney-sweep. 
 
 This law — Respondeat superior — is, I need 
 hardly add, judge-made. It does not appear 
 to be of great antiquity, for, in the Year Booh, 
 9 Henry VI. 53 B, it is laid down (I am in- 
 debted to Mr. Bevan for the reference), " If a 
 servant whose duty it is to sell merchandise 
 sells an unsound horse or other merchandise in 
 a fair, no action lies against the master for 
 
1 THE EMPLOYERS' LIABILIT"S AT COMMON LAW 13 
 
 deceit, since he did not sell to any person in 
 particular." But cases do soon begin to make 
 their appearance, going to show that masters 
 were liable at common law for their servants' 
 misdeeds ; and, in the famous case of Turher- 
 ville V. Stampe, decided in 1697, reported 1 
 Lord Raymond, 264, it was authoritatively- 
 determined by Lord Holt that a master is 
 responsible for his servant's torts. 
 
 The common law of England, therefore, 
 stands thus : — First, a master is liable for his 
 own negligence, both to his own workmen 
 and to the general public, assuming, in the 
 case of a member of the public, that he had 
 some right to be where he was when he sus- 
 tained the, personal injury he complains of; 
 and, Secondly, a master is liable, according to 
 the formula Respondeat superior, for damage 
 sustained by any one by reason of the negli- 
 gence of any of the master's servants acting 
 within the scope of their proper employment, 
 subject to the limitation first made known in 
 1837 by the case of Priestley v. Fowler. 
 
 Leaving this case out of mind for the 
 moment, the common law covered the whole 
 ground, and upon it certain questions neces- 
 
14 LAW OP EMPLOYERS' LIABILITY i 
 
 sarily arose, still arise, and always must arise, 
 if matters of the kind are to be judicially in- 
 vestigated and determined according to this 
 law. The questions are — Who is a master ? 
 Who is a servant ? Was the servant acting 
 within the scope of his employment ? Was 
 the injury occasioned by the negligence of the 
 master or his servant ? 
 
 These questions are, I repeat, inevitable ; 
 but our common law proceeds to put two 
 further questions, not quite so inevitable, yet 
 far from irrelevant. The first of these addi- 
 tional questions is. Was the negligence (and 
 here I assume the fact of the negligence has been 
 found) the proximate cause of the accident ? 
 for if it was not, then the causal connection 
 between the negligence of the master or ser- 
 vant, and the accident which has occurred is 
 severed. What, one instantly asks, can sever 
 this causal connection in actual practice ? and 
 the answer is, the injured man's own negli- 
 gence, or, to employ ominous words, sounding 
 in costs, his contributory negligence. Lord 
 Bowen, in Thomas v. Quartermaine, 18 
 Q. B. D. 694, has defined contributory negli- 
 gence as meaning " that the plaintiff has him- 
 
I THE EMPLOYERS' LIABILITY AT COMMON LAW 15 
 
 self contributed to the accident in such a 
 sense as to render the defendant's breach of 
 duty no longer its proximate cause." 
 
 This, you will see, assumes that the em- 
 ployer (if it be a case of master and servant) 
 ought only to pay if his breach of duty be the 
 proximate cause of the accident, which is often 
 a very nice inquiry, upon which judges have 
 differed with great frequency. How much 
 care ought a man to take of himself, say in a 
 strange inn 1 Should he put his watch be- 
 tween the sheets to see if they are damp before 
 jumping into bed ? Ought he to lock the door ? 
 Should he provide himself with matches ? Other 
 points will suggest themselves to timid 
 travellers, and on none of them will all the 
 judges of the High Court be found concurring. 
 
 The law might very well have been other- 
 wise. The judges might have said in early 
 cases to a defendant in an action for damages 
 for negligence, " As soon as it is established 
 that but for your negligence, that is breach of 
 duty, the accident could not have happened, we 
 will inquire no further. You are admittedly at 
 fault — you have done what you ought not, or 
 you have left undone what you ought ; and 
 
16 LAW OF EMPLOYERS' LIABILITY i 
 
 you shall not be heard to say that he who 
 suffers in consequence of your act or omission 
 might have escaped unhurt if he had taken 
 greater precautions than he did." Had the 
 makers of our Common Law chosen to say 
 this, who could or would have said them nay ? 
 But they did not — they laid emphasis on the 
 words in consequence of, and took the distinc- 
 tion between proximate and remote causes, 
 with the result that our law reports and news- 
 papers record thousands of cases raising this 
 vexed and vexatious question of contributory 
 negligence. 
 
 The remaining question our Common Law 
 asks is this, Had the injured man such a 
 knowledge of the danger or dangers that 
 actually caused the disaster as to create the 
 necessary inference that he voluntarily en- 
 countered them ? If this question is answered 
 with yes, why then says our Common Law 
 there clearly has been no breach of the duty 
 the employed owed to the particular man who 
 is injured. A barbarous bit of Latinity con- 
 veys this dogma, Volenti nan Jit injuria. 
 
 This reasoning is not peculiar to, and is 
 indeed no part of, the special law of master 
 
I THE EMPLOYERS' LIABILITY AT COMMON LAW 1? 
 
 and servant, but follows from the general rule 
 of law, tliat one man cannot sue another in 
 respect of a danger or risk, not unlawful in 
 itself, that was visibly apparent and volun- 
 tarily encountered by the injured man. 
 
 Nobody can say that this is not good sense on 
 the face of it. The keeper of a travelling mena- 
 gerie engages me to take care of his lions — to 
 feed them and clean out their dens. He shows 
 me over the establishment and acquaints me 
 with its arrangements. I see everything, includ- 
 ing the lions, and accept the place. In the course 
 of my duties I irritate one of the lions, and 
 am laid up in consequence. Can it be said 
 that the keeper of the menagerie has been 
 guilty of any breach of duty to me ? Or 
 suppose I engage myself to a trade which, 
 though it gives off noxious fumes, is yet a 
 lawful trade (though subject it may be to be 
 abated or restrained as a nuisance), can I be 
 heard to say that my employer has done me 
 harm ? 
 
 A grown man who voluntarily incurs a 
 known risk must not grumble if he not only 
 runs but realises it. This seems sound sense. 
 
 It is when you come to apply it fearlessly 
 
 c 
 
18 LAW 01* EMPLOYERS' LIABILITY 1 
 
 to the facts of industrial life as now lived in 
 smoky England, that you get into difl&culty. 
 Nobody knows the risks to which their labour 
 exposes them better than the workmen 
 themselves. These risks are made the subject 
 matter of sober talk and idle banter. Fami- 
 liarity with danger breeds a contempt for it. 
 The bold and skilful workman laughs at risk. 
 All life is a risk. Death grins at us round 
 every corner. No Londoner attains middle 
 age without having been within an inch of 
 eternity a hundred times whilst traversing our 
 streets, whilst the hair-breadth escapes we 
 have witnessed in others would fill a sheet of 
 The Times. Yet we go mooning about all the 
 same. The lawyers admit all this, and point 
 out how the maxim is Volenti nonfit injuria, 
 not scienti. It is willing, not knowing. But 
 in sober truth the boundary line between the 
 two states of mind is not discernible in prac- 
 tice. A man knows of a risk and runs it, is 
 he not volens f Now that Lord Bramwell is 
 dead, no one is really bold enough to lean 
 with all his weight upon the doctrine ; and if 
 you read the speeches of the learned lords who 
 formed the majority in the case of Smith v. 
 
t THE EMt>LO!^ERS* LIABILITY AT COMMON LAW 19 
 
 Baker (Appeal Cases, 1891, p. 325), and com- 
 pare them with Lord Bramwell's vigorous con- 
 fession of an old man's faith in free agency, you 
 will see how judge -made law no less than the 
 law of Parliament obeys the will of circum- 
 stance and takes its colour from its surrounding 
 atmosphere. Listen to Lord Herschell, on 
 p. 362 :— 
 
 Where then a risk to the employed which may or 
 may not result in an injury has been created or en- 
 hanced by the negligence of the employer, does the 
 mere continuance in service with knowledge of the 
 risk preclude the employed, if he suffer from such 
 negligence, from recovering in respect of his employer's 
 breach of duty 1 I cannot assent to the proposition 
 that the maxim Volenti non fit injuria applies to such 
 a case, and that the employer can invoke its aid to 
 protect him from liability for his wrong. 
 
 This seems sound sense too, but at the 
 expense of the maxim. If a workman know- 
 ing of a risk chooses to remain on and run it, 
 and yet may recover his damages on proying 
 that his employer was negligent in allowing 
 the risk to remain, why should he not also be 
 allowed to recover in cases where the em- 
 ployer's negligence made the accident possible, 
 but was not in the eye of the law its proxi- 
 
 c 2 
 
20 LAW OF EMPLOYERS' LIABILITY i 
 
 mate cause ? If the maxim Volenti non Jit 
 injuria is to be whittled down to almost 
 nothing, the doctrine of Contributory Negli- 
 gence should, I think, share the same fate, 
 and the law be this — the employer who is 
 negligent pays. 
 
 There is now left but one lion in my path. 
 I have already referred to Priestley y. Fowler, 
 which established in the result the following 
 rule of Common Law : — 
 
 A servant when he engages to serve a master, 
 undertakes as between himself and his master to run 
 all the ordinary risks of the service, including the 
 risk of negligence upon the part of a fellow servant 
 when he is acting in the discharge of his duty as 
 servant of him who is the common master of both. 
 
 This is the beautiful language of a great 
 judge. Sir William Erie. It certainly does 
 not smack of the servants' hall, or the pay 
 office of a Manchester mill. It is of course as 
 sheer invention as the Original Contract be- 
 tween kings and their subjects. No servant 
 ever gave such an undertaking or was asked 
 to do so. Still it is undoubtedly a remarkable 
 fact that, prior to 1836, our Reports contain 
 no case of an action brought by a servant 
 
I THE EMPLOYERS' LIABILITY AT COMMON LAW 21 
 
 against his master for damages for injuries 
 occasioned by the negligence of a fellow- 
 servant. 
 
 Law cases, like lawyers themselves, have 
 very different fortunes. Most of them blush 
 unseen in the Law Eeports, known only to 
 the practitioner, and each class of practitioner 
 knows but his own set of cases. A few are 
 dragged to the bar of public opinion. Priestley 
 V. Fowler has of late years managed to get 
 itself a good deal talked about, and has been 
 denounced at many a trade convention as the 
 mother of the doctrine of common employ- 
 ment. " Will you vote for the abolition of the 
 doctrine of common employment ? " was for 
 years a stock question to the parliamentary 
 candidate for an industrial community. The 
 poor fellow, fresh from his club in Pall Mall, 
 fully primed to state his views as to marriage 
 with a deceased wife's sister, or the dis- 
 establishment of the Church, would turn in 
 his bewilderment to his agent and whisper, 
 " What in the name of wonder is the doctrine 
 of common employment, and am I in favour 
 of its abolition ? " But it stood high in public 
 favour, this doctrine. To declare yourself 
 
22 LAW OP EMPLOYERS' LIABILITY i 
 
 against it was, once upon a time, to be a 
 marked man — a cowardly fellow, who was 
 ready to be a mere delegate of the mob. 
 Business, so it was said, could not be carried 
 on without this doctrine. Trade would desert 
 us and fly to countries where, oddly enough, 
 this wonderful doctrine had never been heard 
 of So it was said ; yet when Mr. Asquith's 
 Bill of 1893 proposed to knock it on the 
 head, not so much as a single employer rose 
 in his place to give it decent burial. Never 
 did a doctrine make so poor a show. Eeligion 
 would blush to own such a doctrine. How- 
 ever, Mr. Asquith's Bill did not become law, 
 and Priestley v. Fowler is still the law of 
 the land, save as modified in a handful of 
 particular cases by the Employers' Liability 
 Act of 1880. 
 
 Let us look at the case as it is to be found 
 in 3 Meeson and Welshy, p. 1. It is an inno- 
 cent-looking case. Fowler was a butcher and 
 Priestley one of his servants, who was told by 
 his master to take charge, for the purpose of 
 delivery, of some goods, which were in one of 
 the butcher's vans under the control of and 
 driven by another of the butcher's servants. 
 
I THE EMPLOYERS' LIABILITY AT COMMON LAW 23 
 
 In the course of the journey the van broke 
 down, and Priestley fractured his thigh. A 
 Lincolnshire jury, thinking it plain that the 
 van was over-loaded, awarded Priestley £100 ; 
 but on motion for arrest of judgment the ' 
 verdict was disturbed, and Priestley got 
 nothing, the Court being of opinion that the 
 action was not maintainable. 
 
 Lord Abinger's judgment is worth reading. 
 
 It is admitted that there is no precedent for the 
 present action by a servant against a master. We are 
 therefore to decide the question upon general principles, 
 and in doing so we are at liberty to look at the 
 consequences of a decision the one way or the other. 
 
 If the master be liable to the servant in this action, 
 the principle of that liability will be found to carry us 
 to an alarming extent. He who is responsible by his 
 general duty or by the terms of his contract for all the 
 consequences of negligence in a matter in which he is 
 the principal, is responsible for the negligence of all his 
 inferior agents. If the owner of the carriage is there- 
 fore responsible for the sufficiency of his carriage to his 
 servant, he is responsible for the negligence of his coach- 
 maker or his harness-maker or his coachman. The foot- 
 man therefore who rides behind the carriage may have 
 an action against his master for a defect in the carriage 
 owing to the negligence of the coachmaker, or for a 
 defect in the harness arising from the negligence of the 
 harness-maker, or for drunkenness, neglect, or want of 
 skill in the coachman. Nor is there any reason why the 
 principle should not, if applicable in this class of cases, 
 
24 LAW OF EMPLOYERS' LIABILITY i 
 
 extend to many others. The master for example would 
 be liable to the servant for the negligence of the 
 chambermaid for putting him into a damp bed, for that 
 of the upholsterer for sending in a crazy bedstead 
 whereby he was made to fall down while asleep and 
 injure himself, for the negligence of the cook in not 
 properly cleaning the copper vessels used in the kitchen, 
 of the butcher in supplying the family with meat of a 
 quality injurious to the health, of the builder for a 
 defect in the foundation of the house whereby it fell 
 and injured both the master and the servant by the 
 ruins. 
 
 The inconvenience, not to say the absurdity, of these 
 consequences, affords a sufficient argument against the 
 application of this principle to the present case. But 
 in truth the mere relation of the master and the ser- 
 vant never can imply an obligation on the part of 
 the master to take more care of the servant 
 than he may reasonably be expected to do of himself. 
 He is no doubt bound to provide for the safety of his 
 servant in the course of his employment, to the best of 
 his judgment, information and belief. The servant is 
 not bound to risk his safety in the service of his master, 
 and may if he thinks fit decline any service in which he 
 reasonably apprehends injury to himself ; and in most of 
 the cases in which danger may be incurred, if not in all, 
 he is just as likely to be acquainted with the probability 
 and extent of it as the master. In that sort of employ- 
 ment especially which is described in the declaration 
 in this case, the plaintiff must have known as well as 
 his master, and probably better, whether the van was 
 sufficient, whether it was overloaded, and whether it was 
 likely to carry him safely. In fact to allow this sort of 
 action to prevail would be an encouragement to the 
 servant to omit that diligence and caution which he is 
 
I THE EMPLOYERS' LIABILITY AT COMMON LAW 25 
 
 in duty bound to exercise on the behalf of his master, 
 to protect him against the misconduct or negligence of 
 others who serve him ; and which diligence and caution, 
 while they protect the master, are a much better 
 security against any injury the servant may sustain by 
 the negligence of others engaged under the same master 
 than any recourse against his master for damages could 
 possibly afford. 
 
 We are therefore of opinion that the judgment ought 
 to be arrested. 
 
 This, then, is that Priestley v. Fowler of 
 which Lord Esher, in his evidence before a 
 House of Commons Committee, said : " I think 
 it may be suggested that the law as to non- 
 liability of masters with regard to fellow- 
 servants arose principally from the ingenuity 
 of Lord Abinger, in suggesting analogies in 
 the case of Priestley v. Fowler," 
 
 It is not at first sight a very striking case, 
 and it is plain from the analogies, the terrify- 
 ing illustrations, of the great advocate who 
 decided it, that he had not in his mind in- 
 dustrial so much as domestic and quasi- 
 domestic employments. It may very well be 
 that if a sleepy housemaid leaves a coal-scuttle 
 on the staircase, over which next morning 
 " Bibulous the butler, with calm brows slightly 
 arched," breaks his leg ; the Courts hear no- 
 
26 LAW OF EMPLOYERS' LIABILITY i 
 
 thing about it, for is not Bibulous carried to 
 his apartment, nursed with devotion by the 
 housemaids, attended by the family surgeon, 
 with his wages running all the time ? What" 
 damage in money has he sustained ? 
 
 The principle that undoubtedly lay con- 
 cealed in Priestley v. Fowler was not plainly 
 made manifest in England (though in America 
 it bore its fruit earlier) until 1850, when in 
 the case of Hutchinson v. the York, Newcastle 
 and Berwick Railway, 5 Exchequer 343, it 
 was held on the authority of Priestley v. Fowler 
 that the widow of a railway servant could not 
 recover damages under Lord Campbell's Act 
 for the loss of her husband, which was occa- 
 sioned by the negligence of the servants of 
 the company creating a collision. Baron 
 Alderson said, p. 351 : — 
 
 Hutchinson in the discharge of his duty as one of 
 the servants of the Company had put himself into one 
 of their railway carriages under the guidance of others 
 of their servants and by the neglect of those other 
 servants whilst they were engaged together with him on 
 one common service, the accident occurred. This was a 
 risk which Hutchinson must be taken to have agreed 
 to run when he entered into the defendants' service, 
 for the consequences of which therefore they are not 
 responsible, 
 
I THE EMPLOYERS' LIABILITY AT COMMON LAW 27 
 
 Here we have the doctrine of common 
 employment naked and unashamed. It is no 
 longer a question of two carpenters working at 
 the same bench, two women grinding at one 
 mill, each able to keep an eye on the other ; it 
 is now only a matter of a common paymaster. 
 The judges have not lacked courage in their 
 application of the doctrine to the facts of our 
 industrial and railway systems. Mr. Bevan, in 
 his elaborate treatise on the Law of Negligence, 
 Vol. I., p. 804, has collected the cases from 
 which we learn that a labourer is a fellow- 
 servant with an engine-driver and with an 
 inspector, a platelayer with the guard of a 
 train, a scaffolder with a builder's manager, a 
 miner with an underlooker, the manager of a 
 lucifer match manufactory with a boy at five 
 shillings a week, a carpenter on the roof of a 
 station with the men shifting a locomotive 
 engine below. 
 
 A case which excited a good deal of atten- 
 tion was decided in 1865, and held that a 
 miner was a fellow-servant with the certificated 
 manager of a colliery appointed pursuant to 
 a statutory obligation ; and therefore, though 
 the miner was killed by the negligence of the 
 
28 LAW OF EMPLOYERS' LIABILITY i 
 
 manager, the widow could recover nothing from 
 the colliery proprietors {Howells v. Landore 
 Siemen's Steel Co., 10 L.R. Q.B. 62). 
 
 Certainly the force of logic could no 
 farther go. 
 
 The whole reasoning of the subject may be 
 found in the speeches of the noble lords who 
 decided the eases of Bartonshill Coal Company 
 V. Reid, and the same company v. McGuire, 
 both reported by Macqueen, Vol. III., pp. 266 
 and 300 (1858), and of Wilson v. Merry, 
 1 L.R. Scotch App. 326 (1868). These cases 
 thrust the doctrine of common employment 
 down the throats of the Scottish judges. 
 
 It would be absurd to say that the doctrine 
 is a ridiculous one. Had it been so it never 
 would have commended itself to the minds of 
 so many great judges. When you once begin 
 inventing terms for other people's contracts 
 there is usually a good deal to be said in favour 
 of your fancy. Supposing our judges had 
 decided, as they have in France, that it is an 
 implied term of every contract of service that 
 the master shall insure his servant against all 
 accidents in the course of the employment 
 which are not solely attributable to the 
 
1 THE EMPLOyBRS' LIABILITY AT COMMON LAW 29 
 
 servant's own negligence or to unforeseen and 
 most unlikely occurrences, — who would have 
 found fault with this fiction ? When you are 
 writing a novel you may make it long or 
 short, merry or sad, as you please. 
 
11 
 
 THE EMPLOYERS' LIABILITY UNDER 
 THE ACT OF 1880 
 
 In my first Lecture I made a survey, necBS- 
 sarily hasty and far from exhaustive, but I hope 
 accurate within its limits, of the liability at 
 Common Law of the Employer towards the 
 Employed to pay damages for injuries sustained 
 by the latter in the course of their Employ- 
 ment. From that survey it was made plain — 
 and I sought to emphasise the fact as much as 
 possible — that by the Common Law the subject 
 under discussion is a branch of the Law of 
 Negligence ; and therefore that no man, be his 
 relation to the injured man what it may, can 
 be required to put his hand into his pocket 
 and pay damages for that injury unless it has 
 been, or by admission can be, proved that the 
 
II EMPLOYERS' LIABILITY UNDER ACT OF 1880 31 
 
 injury was occasioned by a breach of some 
 legal duty which he owed to the injured man. 
 Negligence, we discovered, was the absence of 
 that amount of care which in the circumstances 
 of the case ought as a matter of legal duty to 
 have been present. 
 
 This then is the basis of the Law of Liabil- 
 ity. Negligence, i.e., a breach of duty. No 
 breach of duty, no Negligence. No Negligence, 
 no liability. On this basis our masterful and 
 masterly Judges have built up a huge super- 
 structure of Law which, so far as it ajBfects 
 Master and Servant, I considered under the 
 three heads of Contributory Negligence, Con- 
 sent or Volenti non Jit Injuria, and the much 
 canvassed doctrine of Common jEmployment. 
 The two first named are, every one must admit, 
 legitimate applications of the law of Negli- 
 gence to particular sets of circumstances. 
 They may savour of subtlety, they may per- 
 haps inquire too curiously into the springs of 
 action and the birth of motive, but no one 
 will deny that if a man rushes into danger, 
 and neglecting the ordinary precautions which 
 sensible men in like circumstances are ac- 
 customed to take, suffers a mischance, it is not 
 
32 LAW OF EMPLOYERS' LIABILITY il 
 
 unreasonable to hold that the ill which has 
 overtaken him is due to his own negligence, 
 and not to that of the man who created or 
 permitted the danger to exist. So too if a 
 grown-up man has a danger pointed out to 
 him, or discovers it for himself, and yet con- 
 tinues to labour on in its vicinity, there is 
 nothing irrational in the inference that he 
 assented to run the risk, preferring that risk 
 to the certainty of losing his employment. 
 Yet if he did so assent, it is perhaps strain- 
 ing the law of Negligence to say that his 
 employer is guilty of a breach of duty to him 
 if the contemplated risk is not only run but 
 realised. 
 
 The doctrine of Common Em^ployment has 
 no connection in reason with the law of Negli- 
 gence, but is merely a contrivance to prevent 
 the Common Law having full swing. It cuts 
 down the formula Respondeat Superior (which 
 as we saw was itself a violent extension of the 
 moral basis of Negligence), by holding that 
 every servant on entering into a contract of 
 service undertakes as a risk incident to his 
 employment the chance of being injured by 
 the negligence of his fellow-servants. 
 
II EMPLOYERS' LIABILITY UNDER ACT OF 1880 33 
 
 It was this last named doctrine, and the 
 lengths to which the Judges carried it, that 
 first aroused the discontent of the leaders of 
 the Trades Unions now first escaping from the 
 meshes of the Law of Conspiracy. Public 
 attention was directed to judicial decisions. 
 The case already quoted of Howells v. Lan- 
 dore Siemen's Steel Company, 10 L.R., Q.B., 
 62, where the certificated manager of a mine 
 was allowed to kill a miner with impunity 
 was much animadverted upon ; as also was a 
 case decided so long ago as 1865 of Morgan 
 V. the Vale of Neath Railway Company, 
 1 L.E., Q.B., 149, where a carpenter who was 
 injured by the carelessness of some of the 
 Railway Company's porters who knocked down 
 the scaffold on which he was standing, was 
 held to be without any right of action, Chief 
 Baron Pollock observing : — 
 
 It appears to me that we should be letting in a flood 
 of litigation were we to decide the present case in 
 favour of the plaintifiF. For if a carpenter's employ- 
 ment is to be distinguished from that of the pqrters 
 employed by the same company it will be sought to 
 split up the employes in every large establishment into 
 different departments of service, although the common 
 object of their employment, however different, is but 
 the furtherance of the business of the master ; yet it 
 
 D 
 
34 LAW OF EMPLOYERS' LIABILITY ii 
 
 might be said with truth that no two had a common 
 immediate object. This shows that we must not over 
 refine but look at the common object, and not at the 
 common immediate object. 
 
 The Chief Baron could hardly have said less 
 in 1865 ; but his remarks did not carry con- 
 viction with them, and from that time forward 
 the movement began to get this doctrine 
 modified if not abolished. In 1876 a Com- 
 mittee of the House of Commons was appointed 
 to inquire into the relations of master and 
 servant. It was reappointed the following 
 year, and took a great deal of interesting 
 evidence, which is duly recorded in the 
 Parliamentary papers of the period. The 
 Committee presented their Eeport and re- 
 commended by way of amendment of the 
 Common Law, first, that in cases where the 
 employer had delegated his authority to 
 another, an injured man should not be 
 considered as the fellow-servant of the master's 
 delegate ;, and, secondly, that generally the doc- 
 trine of common employment should only 
 apply in cases where the servant could by 
 personal observation or complaint control the 
 conduct of his fellow-servant. 
 
II EMPLOYERS' LIABILITY UNDER ACT OP 1880 35 
 
 Three years later came the Employers' 
 Liability Act, 1880, which was intended to 
 give effect to the recommendations of the 
 Committee and to remedy the injustice of 
 which the working population had com- 
 plained. 
 
 This Act is a very good, that is a very bad, 
 example of our method of driving our legal 
 system in double harness. We have always 
 with us our Common Law as it is from term 
 to term revealed to us in the judgments of 
 our most eminent judges (for the less eminent 
 judges rarely make law, their efforts in that 
 direction being usually nipped in the bud by 
 the Appeal Court) ; and whenever any par- 
 ticular decision or class of decision excites an 
 unusual amount of disgust, popular disfavour 
 or class animosity — why then, after much 
 loose talk in the newspapers and some inves- 
 tigation before a Parliamentary Committee, a 
 statute is passed amending, or purporting to 
 amend, the particular grievance complained of 
 Our Common Law and our Statute Law are 
 thus inextricably entangled. 
 
 Turning to the Act of 1880, we find it 
 intituled, " An Act to extend and regulate the 
 
 D 2 
 
36 LAW OF EMPLOYERS' LIABILITY ii 
 
 Liability of Employers to make Compensation 
 for Personal Injuries suffered by Workmen in 
 their Service." 
 
 We may note here our national passion for 
 using two words instead of one. The Act 
 does extend the liability of employers beyond 
 their Common Law liability ; but it is in- 
 correct to say it regulates the liability of 
 employers, since all it does is to make an 
 employer liable under the Act in certain 
 specified cases which at Common Law imposed 
 no liability. In those cases the Act provides 
 a remedy, limits the compensation and estab- 
 lishes a procedure, but in all other cases it 
 leaves the Common Law liability where it 
 found it. If a working man who is within 
 the Act has sustained an injury and thinks he 
 can bring his case within any one of the five 
 sets of circumstances specified in the Act, he 
 can take his proceedings as by the Act 
 directed. But if he cannot do this, or if he 
 does not choose to do this, the Common 
 Law of England remains very much at his 
 service. 
 
 The Act does however increase an em- 
 ployer's liability. What is the measure of 
 
II EMPLOYERS' LIABILITY UNDER ACT OF 1880 37 
 
 that increase ? The measure is to be found in 
 the concluding words of Clause 1 : — 
 
 The -workman, or in case the injury results in death, 
 the legal personal representatives of the workman, and 
 any persons entitled in case of death, shall have the 
 same right of compensation and remedies against the 
 employer as if the workman had not been a workman 
 of nor in the service of the employer, nor engaged in 
 his work. 
 
 These words taken by themselves are 
 supposed to abolish and have been held to 
 abolish the doctrine of common employment 
 in the cases specified in the various subsections 
 of Clause 1. 
 
 The criticism of Mr. Justice Cave upon the 
 
 language of the Act must be admitted to be 
 
 sound. " I agree," said Mr. Justice Cave, in 
 
 Griffiths V. The Earl of Dudley, 9 Q. B. Div. 
 
 365, 
 
 that the language of Section 1 of the Employers' 
 Liability Act has not been felicitously chosen. Taking 
 the language in its apparently literal sense the plaintiff 
 must be regarded as a stranger. If he is to be taken 
 as not being a workman of nor in the service of the 
 employer, nor engaged in his work, it follows that he is 
 on the premises as a trespasser or bare licensee. He 
 is not there under contract, nor in the performance of 
 any work in which the employer and he are mutually 
 interested ; so that in the majority of cases no action 
 
38 LAW OF EMPLOYERS' LIABILITY ii 
 
 could be maintained. But I think the real meaning of 
 the Legislature is this ; as far back as the date of the 
 decision in Priestley v. Fowler, the law was that the 
 workman could not recover for injuries sustained by 
 him through the negligence of a fellow-servant. In 
 Priestley v. Fowler this rule was said to be founded 
 upon an implied contract between master and workman, 
 that the master should not be liable. The Courts of 
 Common Law have always felt hesitation in holding 
 that there could be any right of action otherwise than 
 arising out of contract or tort. They therefore applied 
 the doctrine of implied contract — the effect of which, 
 so far as a man's legal liability was concerned, was 
 much the same as if there had been an express contract. 
 The doctrine was extended by Wilson v. Merry to 
 injuries caused to a workman by a foreman, or person 
 occupying a position of superintendence, in the same 
 employment. The Employers' Liability Act was 
 passed to remove the difficulty arising from the decision 
 in Wilson v. Merry. The effect of it is that the 
 workman may bring his action in five specified cases, 
 and the employer shall not be able to say in answer 
 that the plaintiff occupied the position of workman in 
 his service, and must therefore be taken to have 
 impliedly contracted not to hold the employer liable. 
 In other words the legal result of the plaintiff being a 
 workman shall not be that he has impliedly contracted 
 to bear the risks of the employment. 
 
 This then is the benevolent interpretation 
 placed by the judges upon the infelicitous 
 language of the statute, and we are therefore 
 safe in taking it that the doctrine of common 
 employment is abolished in the five cases 
 
II EMPLOYERS' LIABILITY UNDER ACT OF 1880 39 
 
 specified in the first clause ; although, were the 
 words of the clause which I have quoted made 
 to bear their true meaning, the position of the 
 workman under them would have been hardly- 
 improved, since he would have been, as- Mr. 
 Justice Cave points out, relegated to the 
 position either of a trespasser or of a bare 
 licensee, and only invested with the meagre 
 rights belonging to such persons. 
 
 This, then, is the total outcome of the Act. 
 It says that in certain cases and in certain 
 circumstances Lord Abinger's doctrine shall not 
 deprive an injured workman of his right to 
 damages. This, you will remember, was one of 
 the things the public had/il] on its mind to do, 
 though the Parliamentary Committee which 
 reported in the way I have before quoted 
 certainly never contemplated the particular 
 phraseology of the Act. 
 
 One word as to the workmen within the Act. 
 The Act includes railway seTvants and any 
 person to whom the Employers and Workmen's 
 Act, 1875, applies, namely, any person who 
 being a labourer, servant in husbandry, journey- 
 man, artificer, handicraftsman, miner, or other- 
 wise engaged in manual labour, whether under 
 
40 LAW OF EMPLOYERS' LIABILITY il 
 
 the age of twenty-one years or above that age, 
 has entered into or works under a contract with 
 an employer, whether the contract be made 
 before or after 1875, be express or implied, 
 oral or in writing, and be a contract of service 
 or a contract personally to execute any work 
 or labour. Seamen and sea apprentices are 
 expressly excluded from the Employers and 
 Workmen's Act, 1875, as also are domestic or 
 menial servants ; consequently, neither seamen, 
 sea apprentices, nor domestic or menial servants 
 are within the Employers' Liability Act, 1890, 
 but agricultural labourers are within the Act, 
 though its terms have but small application to 
 them. 
 
 I will now examine the specified cases to 
 which the doctrine of Priestley v. Fowler need 
 no longer apply. I say" need no longer apply " 
 because unless the workman avails himself of 
 the Act it does still apply. 
 
 In order to find out what these specified 
 cases are you have to cut up the Act into little 
 bits — I mean literally not critically — and paste 
 them in their proper places. Unless you do 
 this the Act defies you. 
 
 Clause 1 enumerates five cases where if a 
 
II EMPLOYERS' LIABILITY UNDER ACT OF 1880 41 
 
 workman sustains personal injury the doctrine 
 of common employment need not apply. But 
 tlien in Clause 2 it proceeds to state certain 
 circumstances when, notwithstanding Clause 1, 
 the doctrine shall apply. In order therefore 
 to understand what the eases are to which in 
 practice the Act applies, you have to read into 
 the subsections of Clause 1 the subsections of 
 Clause 2. I proceed to do this. 
 
 When after the commencement of this Act 
 personal injury is caused to a workman (1) by 
 reason of any defect in the condition of the 
 ways, works, machinery, or plant connected 
 with or used in the business of the employer, 
 which defect arose from or had not been 
 discovered or remedied owing to the negligence 
 of the employer or of some person in the 
 service of the employer and entrusted by him 
 with the duty of seeing that the ways, works, 
 machinery, or plant were in proper order, then 
 the doctrine of common employment is not to 
 apply unless the workman knew of the defect 
 which caused his injury and failed within a 
 reasonable time to give or cause to be given 
 information thereof to the employer or some 
 person superior to himself in the service of the 
 
42 LAW OP EMPLOYERS' LIABILITY ii 
 
 employer unless the workman was aware that 
 the employer or such superior already knew of 
 the said defect. 
 
 This, then, is the first of the five specified 
 cases ; and we are now (I hope) able to 
 appreciate the scope and purpose of the Act 
 and to perceive how strictly limited that scope 
 and purport is. 
 
 First we see that the employer must either 
 be negligent himself or negligent in the 
 person of another to whom he has entrusted 
 the particular duty referred to in the sub- 
 section. Secondly we see that the law of 
 contributory negligence remains unaltered, 
 since in the eye of the law negligence is not 
 actionable unless it is the proximate cause of 
 the accident ; and Tliirdly we notice that 
 knowledge of the defect and failure within a 
 reasonable time to give notice of it will 
 destroy the right to damage, unless the work- 
 man was aware that the employer already 
 knew of the defect. What then is new about 
 this law ? 
 
 There was always, and still is, a liability at 
 common law on the part of the employer or 
 master, to provide and maintain proper 
 
11 EMPLOYERS' LIABILITY UNDER ACT OP 1880 43 
 
 materials, machinery and plant for the work 
 in and about which the servants are engaged. 
 Bartonsliill Coal Company v. Reid, 3 Mac- 
 queen, 288 ; Wilson v. Merry, L.E. Scotch 
 Appeals 332, 344 ; and a master or employer 
 who fails in this duty is liable at common 
 law to his servant or workman, unless the 
 latter knew of, and therefore by inference 
 of law acquiesced in, the dangerous condition 
 of things. 
 
 The language of the subsection under con- 
 sideration probably does add a little to the 
 obligation of an employer in the matter of 
 ways, works, machinery or plant ; but if it 
 does, this new obligation arises from the 
 precision of the language of the subsection. 
 But the real novelty in the law is the liability 
 imposed upon the employer to answer for the 
 negligence of the person in his service to 
 whom he had entrusted the duty of seeing 
 that the ways, works, machinery or plant 
 were in proper condition. At common law 
 no such liability existed. 
 
 Subsection 2 is as follows. Where after 
 the commencement of this Act personal 
 injury is caused to a workman (2) by 
 
44 LAW OF EMPLOYERS' LIABILITY ii 
 
 reason of the negligence of any person in the 
 service of the employer who has any superin- 
 tendence entrusted to him whilst in the 
 exercise of such superintendence, then the 
 doctrine of common employm£,nt is not to 
 apply, unless the workman knew of the negli- 
 gence which caused his injury, and failed 
 within a reasonable time to give, or cause to 
 be given, information thereof to the employer 
 or some person superior to himself in the 
 service of the employer, unless the workman 
 was aware that the employer or such superior 
 already knew of the said negligence. This is 
 new law, and satisfies the first of the two 
 recommendations of the Parliamentary Com- 
 mittee. 
 
 The third of the specified eases is as 
 follows. Where after the commencement of 
 this Act personal injury is caused to a 
 workman (3) by reason of the neglect of 
 any person in the service of the employer to 
 whose orders or directions the workman at 
 the time of the injury was bound to conform, 
 and did conform, where such injury resulted 
 from his having so conformed, then the doctrine 
 of common employment is not to apply, unless 
 
n EMPLOYERS' LIABILITY UNDER ACT OF 1880 45 
 
 the workman knew of the negligence which 
 caused his injury, and failed as aforesaid. 
 This also is new law. 
 
 The fourth of the five cases specified by the 
 Act is as follows. Where after the commence- 
 ment of this Act personal injury is caused to 
 a workman (4) by reason of the act or 
 omission of any person in the service of the 
 employer done or made in obedience to rules 
 or bye-laws of the employer, or in obedience 
 to particular instructions given by any person 
 delegated with the authority of the employer 
 in that behalf, then the doctrine of common 
 em^ployment is not to apply, iffiless the injury 
 resulted from some impropriety or defect in 
 the rules, bye-laws, or instructions therein 
 mentioned ; provided that where a rule or 
 bye-law' has been approved, or has been 
 accepted as a proper rule or bye-law, by one 
 of Her Majesty's Principal Secretaries ^f 
 State, or by the Board of Trade, or any other 
 Department of the Government under or by 
 virtue of any Act of Parliament, it shall not 
 be deemed for the purposes of this Act to be 
 an improper or defective rule or bye-law. 
 This is the only one of the five cases specified 
 
46 LAW OF EMPLOYERS' LIABILITY ii 
 
 by the Act which is not based upon the 
 negligence of the employer, or of some 
 person to whom the employer has entrusted 
 the work in question. If the employer's rules 
 or bye-laws, or the particular instructions 
 given by any person to whom the employer 
 had delegated his authority, occasioned the 
 accident, the employer is responsible, unless 
 the rule or bye-law has been approved or 
 accepted by the specified authorities or one of 
 them. This also is new law. 
 
 The fifth and last of the specified cases is as 
 follows. Where after the commencement of 
 this Act personal injury is caused to a work- 
 man (5) by reason of the negligence of any 
 person in the service of the employer who has 
 the charge or control of any signal points. 
 Locomotive Engine or Train upon a railway, 
 then the doctrine of common em,ployment 
 is not to apply, unless the workman knew of 
 the negligence which caused his injury and 
 failed as aforesaid. This also is new law, and 
 was framed for the purpose of getting rid of 
 the hardship of such cases as M'Eniry v. 
 Waterford and Kilkenny Ry, Co., 8 Ir. 
 Common Law Eeports 312 (1858); Waller v. 
 
II EMPLOYERS' LIABILITY UNDER ACT OF 1880 47 
 
 South Eastern Ry. Co., 2 H. and C. 102 
 (1863) ; Lovegrove v. London Brighton and 
 South Coast Ry. Co., and Gallagher v. Piper 
 16 C.B. N.S. 669 (1864) ; Morgan v. Vale of 
 Neath Ry. (7o.,L.R. 1 Q.B. 149(1865); Tunney 
 V. Midland Ry. Co., L.R. 1 C.P. 291 (1866). 
 It would be useless in this place to consider 
 one by one the very numerous cases that have 
 been decided under this Act, and which already 
 cover it as it were with a cloud. The public is 
 apt to be unreasonably indignant with the mul- 
 tiplicity of cases, and to assert that their exist- 
 ence proves the incompetency of the Legisla- 
 ture ; but if liability is to depend on negligence 
 it must be determined by circumstances ; and 
 who can stereotype endless circumstance, or 
 prevent one case differing from another ? On 
 the whole the Judges have given the Act a fair 
 chance, though some County Court Judges are 
 accused of being hostile to it ; and the amount 
 of litigation it has given rise to, however much 
 to be regretted, cannot be said to be extra- 
 ordinary. As' compared for example with such 
 Acts as those regulating the law relating to 
 Bills of Sale, the Employers' Liability Act of 
 1880, — tough reading to the working man as 
 
48 LAW OF EMPLOYERS' LIABILITY n 
 
 Sir Frederick Pollock has declared it to be — is 
 quite a model of lucid draughtsmanship. 
 
 Whether the Act carried out to the full the 
 recommendations of the Parliamentary Com- " 
 mittee is doubtful. So far as the Act provides 
 for the responsibility of the Employer in the 
 case of persons to whom he had delegated his 
 authority, it seems to have done all the Com- 
 mittee recommended ; but it was no doubt 
 intended by that body that the doctrine of 
 common employment should be severely re- 
 stricted to those cases where the servant had 
 an opportunity of observing and complaining 
 of the conduct of his fellow-servant. The Act 
 contains no such general restriction, although 
 no doubt it goes a long way in that direction. 
 The only servants whose neglect will render 
 their employer liable to a fellow servant are : 
 
 (1) Persons entrusted by the employer with 
 the duty of seeing that the ways, works, 
 machinery and plant connected with or used 
 in the employer's business are in proper order. 
 
 (2) Persons who have any superintendence 
 entrusted to them by their employer. 
 
 (3) Persons "authorised to give the order or 
 direction which occasioned the injury. 
 
II EMPLOYERS' LIABILITY UNDER ACT OP 1880 49 
 
 (4) Persons acting in obedience to rules or 
 bye-laws obedience to which occasioned the 
 accident, unless such rules or bye-laws have 
 been approved by the Home Secretary or the 
 Board of Trade. 
 
 (5) Persons obeying particular instructions 
 given by any persons duly authorised in that 
 behalf by the employer ; and 
 
 (6) Persons in charge or control of any 
 Signal Points, Locomotive Engine or Train 
 upon a Railway. 
 
 The compensation recoverable under the Act 
 is not to exceed an equivalent to the estimated 
 earnings during the three years preceding the 
 injury of a person in the same grade, employed 
 during those years in the like employment and 
 in the district in which the workman is 
 employed at the time of the injury. The 
 fourth Section of the Act imposes certain limits 
 of time for recovery of compensation by pro- 
 viding that no action under the Act for 
 compensation should be maintainable unless 
 notice of the injury is given within six weeks, 
 and the action is commenced within six months 
 from the occurrence of the accident causing the 
 injury, or in case of death within twelve months 
 
 E 
 
50 LAW OF EMPLOYERS' LIABILITY n 
 
 from the time of death. In the case of death, 
 however, there is a proviso that the want of 
 such notice shall be no bar to the action if the 
 Judge shall be of opinion that there was 
 reasonable excuse therefor. All Actions under 
 the Act are by the sixth Section to be brought 
 in the County Court, subject to removal to a 
 superior Court under certain conditions. On 
 the trial of the action a jury may be demanded 
 if notice of demand is given in writing to the 
 Eegistrar of the Court fifteen clear days at 
 least before the return day. 
 
 The Act says nothing about contracting out. 
 But in the year 1882, in the well known case 
 of Griffiths v. The Earl of Dudley, 9 Q.B.D. 
 357, where it was held that a workman had 
 contracted with his employer for himself and 
 his representatives and any person entitled in 
 case of death not to claim any compensation 
 under the Act for personal injury whether 
 resulting in death or not, it was decided that 
 such a contract was not against public policy, 
 and that the workman's widow suing for 
 damages under Lord Campbell's Act was 
 bound by it. The authority of this case has 
 never been questioned. 
 
II EMPLOYERS' LIABILITY UNDER ACT OF 1880 51 
 
 This Act is at present the only statu- 
 tory modification of the Common Law on 
 any of the subjects I have discussed which 
 exists. 
 
 (For copy of the Act see Appendix B.) 
 
 E 2 
 
Ill 
 
 FOREIGN LAW AND SYSTEMS OF 
 INSURANCE 
 
 On the Continent of Europe the law as to 
 Employers' liability as distinguished from any 
 scheme for compulsory insurance of workmen 
 against accidents is substantially the same as 
 our own Common Law, that is to say it is a 
 branch of the law of negligence. 
 
 In regard to some special trades and occupa- 
 tions there have been in many of the different 
 countries of Europe special legislation affecting 
 Employers' responsibility ; but, apart from these 
 enactments, the law of Europe is for the most 
 part in accordance with the principles of the 
 French Civil Code, which contains the follow- 
 ing Articles : — 
 
 Art. 1382.-^ Any action whatever of a man which 
 
Ill FOREIGN LAW AND SYSTEMS OP INSURANCE 53 
 
 causes an injury to another obliges the person hy whose 
 fault the injury has occurred to repair it. 
 
 Art. 1383. — Everybody is responsible for the injury 
 he has caused, not only by his action but also by his 
 negligence and imprudence. 
 
 Art. 1384. — ^A man is responsible not only for the 
 injury he causes by his own action but also for that 
 which is caused by the action of persons for whom he 
 is answerable or of things in his charge. 
 
 The father or the mother after the decease of the 
 husband are responsible for the injury caused by their 
 children who live with them, being minors. 
 
 Masters and employers, for the injury caused by 
 their servants and overseers in the performance of the 
 functions in which they have employed them. 
 
 Tutors and artisans, for the injury caused by their 
 pupUs or apprentices during the time they are under 
 their supervision. 
 
 This responsibility is incurred unless the father, 
 mother, tutor, or artisan prove that they could not 
 prevent the action which gave rise to the responsibility. 
 
 This law, which is more than a hundred years 
 old, still remains the law of France and also 
 the law of Belgium ; although in both countries 
 there is a movement in the direction of what 
 may be conveniently called the German 
 system of Insurance against accidents. 
 
 The cases in France and Belgium under this 
 law have been numerous, and proceed upon the 
 same lines as our English decisions, except that 
 their general tendency is more favourable to 
 
54 LAW OF EMPLOYERS' LIABILITY in 
 
 the workman. Nothing is known abroad of 
 the doctrine of common employment, nor has 
 the law of proximate causes or contributory 
 negligence been scientifically developed as in 
 England ; and generally speaking it may be 
 said that under the Code Napoleon and the 
 decisions of the Courts applying its principles, 
 the employer in France or Belgium undertakes 
 by virtue of the contract between himself and 
 his workman to watch over the safety of the 
 workman in performance of the work for 
 which he is employed, but does not guarantee 
 him against all kinds of dangers inherent to 
 the work unless the accident has arisen through 
 some fault or want of oversight on the part of 
 the employer, and the onus of proving this 
 fault falls upon the workman. In a case 
 decided in France in the course of this year 
 it was held that the employer is free from 
 liability where the accident arises from what 
 in England is called the act of God, and in 
 France is called vis major, or in other words 
 where the accident has been produced by one 
 of those phenomena that science is unable to 
 explain or by circumstances contrary to the 
 ordinary course of things and which in the 
 
Ill FOREIGN LAW AND SYSTEMS OF INSURANCE 55 
 
 present state of industry upset the measures 
 of precaution required by prudence and fore- 
 sight. 
 
 In Austria the liability of employers to 
 compensate workmen injured in their service 
 is regulated by the ordinary Civil Law, which 
 provides simply that the employer is re- 
 sponsible for those accidents occurring to his 
 workmen which arise from his personal negli- 
 gence ; and in Austria an employer is not 
 responsible for the acts or omissions of those 
 to whom he has delegated his authority unless 
 it can be proved that he has made a wrongful 
 selection or has improperly retained in his 
 service a person by whose fault any accident 
 has occurred. 
 
 In Italy, Sweden, Holland, Denmark, Spain 
 and Russia it may be generally stated that the 
 only liability of the employer is under what I 
 will call the Common Law, and that the work- 
 man must in each case discharge the onus cast 
 upon him of proving negligence. There is 
 however, as may be seen from a Report of 
 Her Majesty's Representatives Abroad on the 
 Laws Regulating the Liability of Employers 
 in Foreign Countries, presented to both Houses 
 
56 LAW OF EMPLOYERS' LIABILITY iii 
 
 of Parliament in June, 1886 (Commercial, No. 
 21 [1886]), a very noticeable disposition or 
 tendency throughout Europe to shift the 
 ground from liability for negligence to insur- 
 ance against accidents ; or, in other words, to 
 follow the example, with such modifications as 
 may be suggested in each country which 
 Germany has set to Europe. 
 
 In many of the various States now forming 
 the German Empire there were to be found 
 existing for considerable periods of time 
 systems or institutions sometimes guaranteed, 
 and in all cases recognised by the State, of 
 sick insurance for workpeople whereby funds 
 were provided to keep a man and his belong- 
 ings " a going concern " during sickness. Of 
 course in the case of an industrial population 
 one great cause of sickness is accident. 
 
 It would only be to trouble you with 
 useless detail to attempt, however shortly, to 
 give an account of the various Acts of the 
 Legislature, which in the German States, and 
 particularly in Prussia, were from time to 
 time passed, dealing both with accidents 
 and insurance. So long ago as 1854 it was 
 made compulsory in Prussia for every work- 
 
HI FOREIGN LAW AND SYSTEMS OF INSURANCE 57 
 
 man to belong to a sick relief society, to which 
 the employers were also compelled by law to 
 contribute ; and in 1871 an Act was passed in 
 Prussia making employers personally liable in 
 most of the dangerous trades and callings for 
 all accidents, except those occasioned by 
 culpable negligence. Contracting out was 
 not allowed. Mr. Charles Green in an inter- 
 esting paper read before the Manchester 
 Insurance Institute, on the 8th of December, 
 1896, states that this Act failed because of 
 the cost of its procedure. 
 
 In 1881, a Bill was introduced in the 
 Eeichstag which proposed to create the neces- 
 sary machinery to insure workmen in railways, 
 factories, and mines, against every kind of 
 accident, and divided the premiums necessary 
 to secure this object in equal thirds between 
 the employer, the insured, and the State. 
 The Socialistic party sought to extend the 
 measure to all trades and employments, and 
 to throw upon the employer the whole burden 
 of the scheme. In the course of the discus- 
 sion the State liability was got rid of, and the 
 premiums were divided between the employer 
 and the workman, in the proportions of two 
 
58 LAW OF EMPLOYERS' LIABILITY m 
 
 to one. In this shape the Bill passed the 
 Reichstag, but never became law. 
 
 The existing German scheme, which consists 
 of two sister measures, the Sickness Insurance 
 Act and the Accidents Insurance Act, came 
 into joint operation in 1885. The Sickness 
 Insurance Bill was the first to pass. 
 Amended at different times these two Acts 
 still remain in full force, and together form 
 that German scheme of which we are now 
 hearing so much. 
 
 Stating their effect very shortly, always bear 
 in mind that the Sickness Insurance Act is com- 
 pulsory, and by its provisions every working 
 man or woman earning wages is obliged to 
 join some recognised club or society ; and as 
 all societies are affiliated together, a member 
 of one can transfer himself to another as he 
 moves about from place to place. On the 
 funds of these societies, which may for all 
 purposes be considered one, devolves the ftill 
 burden of providing the money necessary to 
 keep the insured man or woman who has 
 become by an accident of any kind incapabl,e 
 of attending to his or her labour for a period of 
 thirteen weeks, if the effects of the accident so 
 
Ill FOREIGN LAW AND SYSTEMS OF INSURANCE 59 
 
 long continue. If at the end of that time the 
 workman is still incapable, he is cast upon the 
 funds provided under the Accident Insurance 
 Act, which allots to him compensation accord- 
 ing to a fixed scale. 
 
 Mr. Green, in the interesting pamphlet I 
 have already quoted from, speaks of this Ger- 
 man scheme as being " the very pinnacle of 
 State Socialism." But is it ? My notion of 
 Socialism is, a scheme under the terms of 
 which the bill for everything is sent in to 
 everybody. Who pays the bill in Germany ? 
 Let us look at the system a little closer. 
 
 Under the Sickness Insurance Act the 
 obligation to insure his workpeople is cast 
 upon the employer, who no doubt pays the 
 whole of the premiums in the first instance, 
 but is permitted to deduct the workpeople's 
 share from their wages. And what is the 
 workpeople's share ? Two-thirds, the remain- 
 ing third being paid by the employer himself. 
 
 Under this Act (the Sickness Insurance 
 Act) the vast majority of the accidents which 
 occur in Germany are fully dealt with. Out 
 of the 310,000 odd accidents of which notice 
 was given in 1895, only 75,000 remained to 
 
60 LAW OF EMPLOYERS' LIABILITY iii 
 
 be treated under the Accident Insurance Act. 
 In other words the great majority of the 
 accidents occuring in the industrial occupations 
 of Germany yielded to a treatment of thirteen 
 weeks ; and during that time the working 
 classes themselves contributed two-thirds of 
 their expenses, and the employer the remain- 
 ing third. 
 
 The Accident Insurance Act takes up the 
 cases which do not yield to a thirteen week 
 treatment, and imposes upon the employer the 
 obligation of providing the whole of the funds 
 necessary to provide the moneys payable 
 under the tariff created by the Act. The 
 general public, be it observed, does not con- 
 tribute a penny piece to the fund. 
 
 We therefore see that for the first thirteen 
 weeks of an accident the workpeople pay 
 two-thirds and the employer one-third, and in 
 cases requiring further assistance the employers 
 pay all. I do not think the expression State 
 Socialism can properly be applied to any such 
 system as this. 
 
 Just as under the Sickness Insurance Act 
 every workman is compelled to join a sick 
 Society, so under the Accident Insurance Act 
 
Ill FOREIGN LAW AND SYSTEMS OF INSURANCE 61 
 
 every employer of a trade scheduled to the 
 Act is bound to join a group or corporation of 
 similar trades; and it is to this group or 
 corporation that the injured workman looks 
 for the compensation to which he has become 
 entitled under the provisions of the Accident 
 Insurance Act. There are 112 of these Cor- 
 porations,- of which 48 are agricultural and 64 
 Industrial. Mr. Henry W. Wolff, in his 
 pamphlet entitled Employers' Liability : What 
 ought it to he? (P. S. King & Son, 1897) gives 
 some interesting details as to these Corpora- 
 tions. There are, he tells us, six Textile 
 Corporations, besides one for Silk Weavers and 
 another for Flax Spinners, eight Iron and Steel 
 Corporations, and twelve Builders' Corpora- 
 tions. These Corporations have their own 
 Inspectors, and meet together in annual 
 congress to discuss their affairs and liabilities, 
 and to prepare, so Mr. Wolff assures us, model 
 regulations for the protection of accidents as 
 well, and also to make representations or 
 recommendations to the Government with a 
 view to improving the Act. 
 
 The procedure is as follows. First of all 
 the accident happens doing injury to some- 
 
62 LAW OF EMPLOYERS' LIABILITY in 
 
 body. Then there is a police inquiry as to 
 the fact of the accident. The obligation of 
 giving notice of the accident to the police is 
 thrown upon the employer, wlio has to do so 
 within two days of its occurrence. The Police 
 make their inquiry and forward their Report 
 to the Corporation within three days after 
 receiving the notice. It then becomes the 
 duty of the Corporation to award compensa- 
 tion. It does so on its own motion and by its 
 own authority. If the accident results in 
 death the Corporation has at once to pay 
 the workman's funeral expenses, and if 
 he leaves dependents behind him compen- 
 sation as awarded. If the accident is not 
 of a fatal character the Corporation calls 
 upon the sick fund under the Sickness 
 Insurance Act to do its part, and the actual 
 liability of the Accident Insurance Corporation 
 does not begin until after the expiration of 
 three months ; although, — and this is a point 
 not to be overlooked, — the Corporation may as 
 a matter of expediency undertake the healing 
 of the sick man itself at the earliest possible 
 date, but at the charges of the Sick Fund. 
 As the working man is not represented in 
 
Ill FOREIGN LAW AND SYSTEMS OP INSURANCE 63 
 
 the first instance when the Award is made he 
 naturally is dissatisfied with it, and in almost 
 all cases he appeals from the Corporation to 
 a Court composed of two employers and two 
 workmen, presided over by some independent 
 person. From this tribunal there is in many 
 cases a second appeal to the Imperial In- 
 surance Department, the decision of which is 
 final. The Imperial Court is also composed of 
 employers and workmen in equal proportions, 
 with an Imperial Ofiicer as president. 
 
 The Awards, whatever they may be, are paid 
 through the Post Office, which at the end of 
 the year sends in its Bill to the different 
 Corporations, who proceed to levy the total 
 amount of their contributions from their 
 members in proportions which depend upon 
 the special danger risk of the individual 
 employer's work, and the total amount of the 
 wages he pays. 
 
 From some statistics quoted by Mr. Wolfi' 
 it appears that the corporation's task of 
 recovering from its individual contributors 
 their proper proportion is far from an easy 
 one ; and though the result of the German 
 ■system as a whole may be to prevent litigation 
 
64 LAW OF EMPLOYERS' LIABILITY in 
 
 about accidents, it cannot be said to prevent 
 it altogether ; for it appears that the Corpora- 
 tion of Hackney Coaches and Carriers in the 
 year 1892 had to sue some 7,000 of its 
 members for their contribution, whilst the 
 Mine Owners' Corporation had over 154 con- 
 tributions to collect by civil process. However, 
 this is the system. 
 
 What does this liability amount to in cash ? 
 This is a difficult question to answer. Mr. 
 Wolff says that quarry owners (and quarrying 
 is one of the most dangerous of trades) pay 
 three or four per cent, on their wages, mine 
 owners two per cent., textile industries only 
 about 0"6 per cent., and that taking all the 
 trades altogether the tax amounts to a little 
 over one per cent, on the wages paid. 
 
 Another question much controverted is. 
 Does the German system prevent accidents ? 
 Speaking a 'priori I should have thought it 
 must have that effect. Here are great Corpora- 
 tions composed of the men who know most 
 about the particular trades grouped together, 
 and familiar with their inherent dangers and 
 risks, and upon these Corporations so composed 
 is flung the whole burden of paying for all 
 
Ill FOREIGN LAW AND SYSTEMS OP INSURANCE 
 
 65 
 
 serious accidents happening in the course of 
 these trades. The Corporations employ their 
 own Inspectors, and collect and preserve 
 evidence of accidents and consider how best 
 accidents may be prevented. The Corporations 
 have also the power of punishing individual 
 members against whom there is a bad record 
 of accidents, by the simple process of increasing 
 the amount of their contributions. The total 
 liability imposed by the system, although not 
 enough to cripple industry, is still sufficiently 
 large to be a matter of constant anxiety, and 
 therefore requiring perpetual attention. It 
 seems hard to resist the conclusion that such a 
 system must in the long run have a preventive 
 tendency. 
 
 It is also asserted that the Corporations show 
 praiseworthy anxiety to cure injured persons 
 as speedily as possible in order to prevent their 
 coming upon their pension list. The Corpora- 
 tions frequently have their own hospitals, in 
 which they are willing to receive the injured 
 man from the first, and where no expense is 
 spared to cure him. Of course the Sick Fund 
 has to pay its proportion of these expenses. 
 
 Anyhow, there can be no doubt that the 
 
 p 
 
66 LAW OF EMPLOYERS' LIABILITY ill 
 
 German system during the last ten years has 
 been worked, on the whole, satisfactorily, and 
 upon a huge scale. Over 12,000,000 people 
 engaged in agriculture, over 5,000,000 people 
 engaged in Industrial callings, and nearly 
 3,000,000 people in addition, fall within its 
 scope. The list of killed and wounded and 
 widows, children and dependants who annually 
 receive compensation under the scheme is very 
 large. Mr. Wolff gives many interesting 
 details. The 48 Agricultural Corporations 
 paid in 1895 a great number of marks in 
 compensation to 103,363 injured persons, and 
 also paid for the medical treatment of 12,591 
 persons ; whilst the 64 Industrial Corporations 
 compensated 148,696 injured persons, and paid 
 for the medical treatment of 23,323. 
 
 Austria adopted the German system or one 
 very similar to it in 1887, the main diiference 
 being that the joint liability of employers to 
 compensate their workmen is thrown upon the 
 trade within a district and not upon the whole 
 trade throughout the country. Each Province 
 has its own Insurance Institution composed of 
 employers who are liable under the law, but the 
 Provinces may unite if they choose and trades 
 
Ill FOREIGN LAW AND SYSTEMS OP INSURANCE 67 
 
 may form their own Insurance groups under 
 certain conditions. The Insurance groups are 
 governed by committees consisting one-third 
 of employers, one-third of workmen, and one- 
 third of members nominated by the Provincial 
 Council. Inquiries are held into every accident 
 by the local authorities with whom the 
 Insurance group may be associated. The 
 appeal from awards made by the Insurance In- 
 stitutions is to an Arbitration Board composed 
 of a permanent president nominated by the 
 Minister of Justice and four assessors, of whom 
 two are chosen by the Minister of the Interior, 
 one is appointed by the employers, and one by 
 the workmen. If the accident has arisen by 
 the wilful act or default of the employer or his 
 representative, the whole of the payments 
 made to the injured man must be refunded to 
 the Insurance Institution. (See the Report 
 of the Special Commissioner of the Daily 
 Chronicle, Feb. 1, 1897.) 
 
 Another important distinction between the 
 German and the Austrian systems is that in 
 Austria the period of Sick Fund illness is 
 limited to four weeks instead of thirteen. 
 
 In France the subject has been under dis- 
 
 P 2 
 
68 LAW OF EMPLOYERS' LIABILITY m 
 
 cussion for a very long time, in fact ever since 
 1881. In 1884 a Bill more or less upon the 
 German sj^stem came on for discussion in the 
 Chamber of Deputies. M. Treitt thus describes 
 the debates which then took place : — 
 
 Les ddbats ont ^te vifs et animus ; tout le monde 
 s'est dit I'ami des ouvriers ; mais le principe de la 
 responsabilit^ absolue des patrons ou employeurs a et^ 
 combattu avec ^nergie. II a paru exorbitant que Ton 
 renversat en faveur I'axiome que le demandeur est 
 oblig^ de faire la preuve de son action {actori incumbit 
 probatio) et que I'employeur fut responsable ipso facto 
 de tous les accidents quel qu'ils fussent et que se fut 
 a lui a faire la preuve negative qu'il n'est pas la cause 
 de I'accident. 
 
 None however of the various schemes that 
 have from time to time been before the French 
 Chamber have become law ; but there is now, 
 and has been for some time past in draft, a 
 complete scheme of insurance against accidents, 
 a full print of which may be seen in the 
 Parliamentary Paper, Foreign Office, 1892, 
 Miscellaneous Series, No. 258, page 148. 
 
 I will only refer to a few of the principal 
 Articles. 
 
 Art. I. — All accidents happening by and during the 
 performance of their duties to workmen and employes 
 engaged in building works, factories, manufactures, 
 yards, transport loading and unloading of merchandise, 
 
Ill FOREIGN LAW AND SYSTEMS OF INSURANCE 69 
 
 public warehouses, mines, mining stores, quarries, and 
 generally in all establishments or branches thereof in 
 which explosive materials are manufactured or em- 
 ployed, or where use is made of steam engines or 
 machines worked by elementary powers (air, water, 
 steam, gas, hot air, electricity, &c.), or by animals, give 
 right in favour of the sufferer or his representatives to 
 compensation, the importance and character of which 
 are hereinafter determined. 
 
 This provision is applicable to workmen and em- 
 ployers engaged in enterprises and works connected 
 with the State, the departments, districts, and public 
 establishments. 
 
 Art. III. — When the accident causes permanent and 
 absolute incapacity to work the sufferer is entitled to a 
 life annuity equal to two-thirds of his annual wages. 
 
 Blindness, the complete loss of the use of two limbs 
 or any incurable infirmity which renders the workman 
 unable to work and provide for his maintenance, are 
 considered as permanent and absolute incapacity to work. 
 
 Art. VIII. — In all accidents which have caused 
 incapacity to work during more than three days, the 
 head of the establishment shall bear the expense of 
 medical attendance and medicines. He shall also pay 
 during the illness arising from the accident a sum equal 
 to one-half of the sufferer's wages, on condition that 
 such sum does not exceed 3 fr. 50 c. per diem. 
 
 The head of the establishment is only responsible for 
 this compensation for a period not exceeding 30 days 
 from the date of the accident. After the thirtieth 
 day, if the sufferer be not in a fit state to return 
 to his work, the temporary indemnity above pro- 
 vided and cost of attendance and medicines shall be 
 at the charge of the district. The head of the es- 
 tablishment shall, however, continue to provide them 
 
70 LAW OP EMPLOYERS' LIABILITY iii 
 
 up to the time when a definite decision has been pro- 
 nounced by competent jurisdiction,. but as an advance 
 only, and at the expense of the district which shall 
 reimburse him. 
 
 •This temporary compensation shall be paid from the 
 date of the accident at the usual periods of payment 
 of wages, and at the latest every 1 5 days. 
 
 Art. IX. — Heads of establishments may relieve 
 themselves of the obligation to pay the cost of the 
 illness and temporary compensation during the first 30 
 days following the accident if they can prove — • 
 
 (1) That they have at their own cost founded 
 special benefit funds, or have associated their workmen 
 to approved or authorised mutual aid societies. 
 
 (2) That such funds or societies are bound to pay, 
 independently of the treatment of the wounded, a 
 compensation equal to one-half of their daily wages, 
 on condition that this indemnity shall not be obliged 
 to exceed 3 fr. 50 c. per diem during the illness, or at 
 least during the first 30 days. 
 
 Art. XII. — Every accident causing incapacity to 
 work, and happening in establishments of the class 
 mentioned in Art. I., shall be declared by the head of 
 the establishment or his representative. 
 
 This declaration shall be made within 48 hours of 
 the occurrence to the mayor of the district, who shall 
 draw up an official report in the form to be settled by 
 a Ministerial Decree. 
 
 The head of the establishment shall annex to this 
 declaration a medical certificate setting forth the state 
 of the injured person, the probable consequences of the 
 accident, and the date when it may be possible to learn 
 the positive result. 
 
 A voucher for the declaration and medical certificate 
 shall be immediately given by the mayor to the deponent. 
 
Ill FOREIGN LAW AND SYSTEMS OP INSURANCE 71 
 
 Similar declarations and productions of certificates 
 may be made by the injured man or his representatives. 
 
 Art. XIII. — When the injuries appear likely to 
 become fatal or to entail permanent incapacity for 
 work, the mayor shall send copies of the declarations 
 and medical certificate to the justice of the peace for 
 the district. 
 
 Within 24 hours of the receipt of such notice the 
 justice of the peace shall institute an inquiry for the 
 purpose of learning — 
 
 (1) The cause, nature, and circumstances of the 
 accident. 
 
 (2) The names of the sufferers. 
 
 (3) The kind of injuries sustained. 
 
 (4) The place where the killed or the wounded are 
 to be found. 
 
 (5) The relatives of the sufferers who may present 
 claims for compensation. 
 
 (6) The daily and annual wages of the Sufferers. 
 Art. XVII. — Disputes between sufferers from 
 
 accidents, the heads of establishments, or the district 
 with regard to temporary compensation, medical 
 attendance, cost of medicines, and funeral expenses, 
 shall be decided without appeal by the justice of the 
 peace of the district where the accident occurred. 
 
 Art. XVIII. — With regard to the other com- 
 pensations provided for by the present law, within 
 eight days of the reception of the documents relating 
 to the inquiry the President of the Civil Tribunal shall 
 convene the injured person or his representatives, the 
 bead of the establishment and the representative of the 
 district. If the parties agree, the amount of the com- 
 pensation shall be definitely settled by an order of the 
 President, who delivers an act to this effect. 
 
 When the parties do not agree the dispute shall be 
 
72 LAW OF EMPLOYERS' LIABILITY in 
 
 settled at the chief town of the district where the 
 accident occurred by a Court composed of three heads 
 of establishments and three workmen assembled before 
 the President of the Tribunal, or in his absence before 
 the judge appointed by him. 
 
 A-rt. XXVII. — The decision of the Court of Arbi- 
 tration can only be appealed against by a petition of 
 appeal, and then only for excess of power or violation 
 of law. The appeal must be made by declaration at 
 the registry of the Civil Tribunal within 15 days from 
 the date of the decision. 
 
 Art. XXX. — ^Neither of the compensations settled by 
 the present law may be allowed to the injured persons 
 who intentionally caused the accident. 
 
 Judgment should be deferred by the Court of 
 Arbitration so long as no final decision has been 
 pronounced in the public action brought before or 
 during the claim for compensation. 
 
 Art. XXXI. — The Court of Arbitration has the 
 right, if it be proved by the employer or the district 
 that the accident was due to the serious fault of the 
 workman, to diminish or even to refuse any pension 
 whatsoever to the sufferer or his representatives. 
 
 Art. XXXII. — When it has been proved that the 
 accident was due to the serious fault of the head of the 
 establishment or of one of those placed by him in 
 charge of or to survey the works, the Court of 
 Arbitration may increase the compensation provided 
 under Sec. I. 
 
 The normal compensation is alone carried to the 
 account of the district or included in its expenditure. 
 The payment of the supplementary compensation shall 
 be recovered from the head of the establishment. 
 
 The injured person or his representatives have full 
 right to benefit by judicial aid for the recovery of this 
 
Ill FOREIGN LAW AND SYSTEMS OF INSURANCE 73 
 
 compensation which is guaranteed by the privilege 
 conferred by Art. 2101 of the Civil Code, and 
 mentioned therein under No. 6. 
 
 Art. XLIV. — The Higher Council shall draw up 
 within six months of the promulgation of the law a list 
 in which shall be enumerated all the industries and 
 professions subject to its provisions. It shall set forth 
 the series of the relative proportions of risks to which 
 each industry or profession is liable according to the 
 conditions under which they are carried on, which con- 
 ditions should be stated in the said list. 
 
 To each class of industry at least three graduated 
 proportions shall correspond. 
 
 The list shall be approved and made executory by 
 decree and shall be revised every three years. 
 
 In case of omission of an industry the parties 
 interested may apply at all times to the Minister to 
 obtain its insertion, and it shall be added if need be to 
 the general list by means of a decree to that effect. 
 
 Art. XL VI. — The sum to be distributed each year 
 according to district comprises — 
 
 (1) The capital required to constitute the incomes 
 and pensions entered on the books during the pre- 
 ceding year. 
 
 (2) The sums charged during the same period to the 
 account of the district for funeral expenses, temporary 
 compensation, and cost of administration and collection. 
 
 (3) Additional capital for a reserve fund, the 
 amount of which shall be settled annually by the 
 committee of management and shall not exceed one- 
 fourth of the sum distributed during the preceding 
 year. 
 
 Art. XLVII. — For this purpose the committee of 
 management shall draw up every year for each parish 
 of the district, according to notice and proposal of the 
 
74 LAW OF EMPLOYERS' LIABILITY iii 
 
 committee of sections, a list of names according to the 
 heads of all the establishments under the control of the 
 parish or commune, with particulars of their classifi- 
 cation, their relative proportion of risk, and if need be 
 the reduction of subscription allowed to each of them. 
 
 I have thought it worth while to print these 
 Articles, though the scheme is still under dis- 
 cussion, because, as compared with the German 
 System, the French draft bill exhibits those 
 gifts of expression and that lucidity of arrange- 
 ment which so happily characterise our agree- 
 able neighbours. 
 
IV 
 THE NEW BILL 
 
 It was a shrewd observation of one of the 
 keenest critics of the Anglo-Saxon mind that 
 ever lived, Cardinal Newman, that it takes an 
 immense time to wind up an Englishman to 
 the level of a dogma — that is to say, to get 
 him to understand what a dogma is, what it 
 involves, what it necessarily asserts, and what 
 it unavoidably denies. Often when after great 
 toil, with pulleys and hoists, encouragements 
 in front and goads behind, the Englishman's 
 bullet-head slowly appears almost on the level 
 of the ground, something goes wrong some- 
 where, and down he falls to the very bottom 
 of the pit, and the work of winding him up has 
 to be begun all over again. 
 
 This trait of character is very noticeable in 
 
76 LAW OF EMPLOYERS' LIABILITY iv 
 
 tlie discussion now going on not only in Com- 
 mittee of the House of Commons, but in every 
 railway shed and Directors' board room in the 
 country about this new way of paying work- 
 men for injuries sustained by them in the 
 course of their employment. Nor is this 
 surprising ; for if it be difficult to get an 
 Englishman to lay hold of a dogma at all, 
 how much more difficult must it be to per- 
 suade him to let go an old one with which use 
 and wont have familiarised him, and to seize 
 upon a new one of which a month ago he had 
 never heard, — to make him exchange his old 
 Mumpsimus for a brand new Sumpsimus. 
 Again and again in the course of the par- 
 liamentary discussion has this difficulty been 
 illustrated. Again and again has the new 
 dogma been expounded ; but again and again 
 have employers of labour and labour repre- 
 sentatives risen in their places and started 
 off along the very line of rail from which you 
 thought Mr. Chamberlain had successfully 
 shunted them half-an-hour before. 
 
 In the first two Lectures I emphasised with 
 tiresome iteration how hitherto " in our rough 
 island story," delinquency has been the sole 
 
i-v THE NEW BILL 77 
 
 basis for damages. Justice, not pity — indi- 
 vidual wrong-doing or forbearing, not general 
 contract of insurance — were the watchwords 
 of our law and lawyers. It is true, as I 
 pointed out in the first Lecture, that at an 
 early date in our history an exception was 
 introduced which tarnished the purity of our 
 moral code — I mean, the doctrine which im- 
 puted to a master a negligence which was not 
 his, but his servant's, and cast upon the 
 employer the liability to pay damages for an 
 act or omission of his servant which he had 
 never authorised and had even expressly for- 
 bidden. From Lord Holt's time, and, indeed, 
 from a much earlier date, the view has pre- 
 vailed that the man who chooses to carry on 
 his business or arrange his pleasure by means 
 of hired labour must warrant the pecuniary 
 capacity of his hireling to pay damages for 
 any wrongful act or omission of the hireling 
 done or permitted in the course of his employ- 
 ment. Respondeat superior is a dogma which 
 holds in its arms the new dogma of the new 
 Bill. 
 
 It is worth again noting how the much- 
 talked-of doctrine of Common Employment 
 
78 LAW OF EMPLOYERS' LIABILITY iv 
 
 was a protest against the dogma Respondeat 
 superior, and an attempt, and a very successful 
 attempt of our judicial legislators to restrict 
 the application of the dogma to persons out- 
 side the service of the same master. If my 
 cook scalds the butcher's boy I pay, but if she 
 scalds her kitchenmaid I do not pay. The 
 gaunt structure of society is covered with such 
 juridical cobwebs as this ; and she, the brawny 
 giantess that she is, grunting and sweating 
 under the well-nigh intolerable burden of life, 
 patiently submits to be bound by them ; 
 seldom so much as raises her head from her 
 toil to inquire what they are, what they 
 mean, however they came into existence, and 
 why they should be allowed to remain. 
 
 But for this remarkable exception of 
 Respondeat superior our old dogma was : 
 Nobody sliall be called upon to pay for 
 the misfortunes of another unless those mis- 
 fortunes have been directly occasioned by a 
 breach of that duty which each man owes his 
 neighbour — to take that proper amount of care 
 of him which according to the circumstances 
 of the case was his due. And in order to 
 ascertain what that amount of- care was in 
 
IV THE J!irEW BILL 79 
 
 the circumstances of any particular case and 
 whether it was lacking — let a jury be sworn. 
 
 This was the old dogma, the history of 
 which you can read, the development of which 
 you can trace, the consequences of which you 
 can mark in the hundreds of volumes of our 
 Law Eeports. No branch of legal study 
 exhibits our judges, a virile race, from Lord 
 Holt to Lord Esher, in finer intellectual form. 
 They toss the subject to and fro, they impale 
 the wounded suitor upon the horns of countless 
 dilemmas, they drive home moral obligations, 
 they drive off illegitimate conclusions with a 
 verve and a vigour as attractive and bracing as 
 is (for the most part) the language of their 
 judgments apt and accurate. 
 
 It is all very splendid, but, like " the pomp 
 and circumstance of glorious war," it is expen- 
 sive. It costs money and it takes time. Now 
 Time and Money are the gods of our Israel, 
 and hence our religious horror of litigation 
 and our holy rage at costs. 
 
 Well am I aware of the unpopularity 
 amongst Trades Union men of the doctrine of 
 Common Employment ; frequent have been my 
 opportunities of observing the hardship wrought 
 
Sii LAW OF EMPLOYEES' LIABILITY iv 
 
 by judges taking it upon themselves to non- 
 suit plaintiffs for contriljutoiy negligence ; fully 
 do I recognise how inapplicable to the facts 
 of our modern social life is the maxim Volenti 
 iion Jit injuria — yet certain am I of this, that 
 grievous though these incidents of our Common 
 Law are, and loudly though they call for reform, 
 the real enemy of the old dogma and the real 
 parent of the new dogma is Costs, or, as they 
 are called in Scotland, Expenses. 
 
 The whole country has lost its temper with 
 costs. It is scandalous, the country cries, that 
 it should cost so much money to find out 
 simple facts. Statistics are quoted to show 
 how it costs ^14 17s. 6d. to recover £50 ; and 
 some stout solicitor who has made a snug 
 fortune out of railway companies and public 
 Boards and the Lands Clauses Consolidation 
 Act, gets up in his place in Parliament and 
 deplores the fact that there are in the ranks 
 of his profession, a few, a very few, but 
 still a few, practitioners, lewd fellows of the 
 baser sort, who are not above making costs 
 out of a workman's accident. Parliament shud- 
 ders at such infamy, and runs amuk at costs. 
 
 Kow, be it observed that if your end and 
 
IV THE NEW BILL 81 
 
 aim is to bring out the truth, to discuss the 
 facts, to consider surrounding circumstances 
 (and surrounding circumstances there will al- 
 ways be, despite the impatience of Parliament), 
 to adjust moral claims and to fix responsibility, 
 the process will always cost money, and if it 
 is done properly, take time. And what is more, 
 the process itself, call it by what new-fangled 
 name you please, is in fact litigation. You 
 may, though it is not easy, cheapen litigation, 
 but its nature remains the same. 
 
 Mr. Asquith's Bill of 1893 sought to reform 
 the Common Law and to cheapen litigation ; 
 but as soon as it was dubbed " a Bill to enable 
 lawyers to make costs," it was doomed. " No 
 more costs " was the cry of an attorney-ridden 
 world. Oh ! for some expedient to cut our- 
 selves adrift from this living death of costs ! 
 Then some well-informed person rose up and 
 declared that in the remote Teutonic Fatherland 
 there was and had been for a decade and more, 
 a scheme in existence which had got rid once 
 and for ever of all litigation about the origin 
 of accidents, and consequently of all costs, and 
 by which matters were so arranged that when- 
 ever and however an accident arose, money to 
 
 G 
 
82 LAW OF EMPLOYERS' LIABILITY iv 
 
 compensate it came through the post. Men 
 looked to Germany, and from Germany came 
 the new dogma. 
 
 What is it ? The Bill of the Government 
 declares it in the first clause : — 
 
 If in any employment to which the Act applies personal 
 injury by accident arising out of and in the course of the 
 employment is caused to a workman his employer shall, 
 subject as hereinafter mentioned, be liable to pay 
 compensation in accordance with the First Schedule to 
 this Act. 
 
 This then is the new dogma. Consider it 
 for a moment before any of its beams have been 
 shorn by subsequent qualifications. 
 
 You have here personal liability to pay wholly 
 irrespective of personal delinquency. Neg- 
 ligence, so long the genius of this branch of 
 the law, is with sighing sent. Accident — 
 Chance takes her place. A flash of lightning 
 strikes a chimney-stack, properly protected by 
 conductors ; the chimney falls and kills a man 
 working at its base : the employer compen- 
 sates his widow and dependents according to 
 scale. A workman, not known to be of intem- 
 perate habits, flustered with drink lights a 
 match in a gaseous mine and blows himself 
 
IV THE NEW BILL 83 
 
 and a score of his fellow workmen into eter- 
 nity : the employer compensates the widows 
 and children of the twenty according to scale. 
 A workman rushing recklessly along trips and 
 falls into a vat or pit which should have been 
 fenced, and is gravely injured : the employer 
 pays according to scale. A workman is en- 
 gaged in dangerous works, the risks of which 
 are fully explained to . him ; he suffers an 
 injury ; the employer pays according to scale. 
 
 But if the employer instead of being guilt- 
 less is personally negligent, or acts wilfully, 
 why then he remains liable under the pro- 
 visions of that Common Law which the Bill 
 leaves severely alone. 
 
 Repeatedly during the discussions in Com- 
 mittee the non-morality of the measure seemed 
 to strike members all of a heap. Employers 
 and Employed were heard loudly declaring 
 that the Bill gives natural justice the lie 
 direct. 
 
 But does it do anything of the kind ? The- 
 whole basis of the Bill is the insurance by the 
 employer of his workmen against accidents 
 arising out of their employment. Let us sup- 
 pose that Lord Holt two hundred years ago, 
 
 a 2 
 
84 LAW OF EMPLOYERS' LIABILITY iv 
 
 when a lawyer's fancy had greater scope than 
 to-day, had declared it to be an implied term 
 of every contract of hiring that the master 
 guaranteed his servant against injury to life or 
 limb whilst going about his master's business, 
 — would not that have been a principle as 
 capable of application and development as the 
 law of negligence itself? Is there anything in 
 it shocking to the moral sense ? A poor man 
 after all has but his life and his limbs, and if 
 a fellow-mortal buys the use of the latter in 
 the labour-market for a daily or weekly wage, 
 is there anything contrary to natural justice 
 in the purchaser being assumed to have en- 
 sured the said life and limbs against the 
 happening of events, which if they do 
 chance to happen will render the man and his 
 belongings helpless and homeless ? 
 
 It is not now a question of moral responsi- 
 bility at all, but of the implied terms of an 
 unwritten contract of hiring. It is only be- 
 cause we have lived so long under the bondage 
 of moral ideas in this matter that we find it 
 hard to be shunted suddenly on to another 
 line of thought altogether. 
 
 I assert confidently that the principle of the 
 
IV THE NEW BILL 85 
 
 new Bill is a sound one, even although the 
 employer who pays under it is no more a 
 delinquent than is an insurance broker a mur- 
 derer when he pays the moneys that have 
 become due under a life-policy. It is not 
 crime or tort, but quasi-contract. 
 
 It is, however, no easy job to take the 
 moral law out of an Englishman's mouth. He 
 loves to mumble it. 
 
 The Bill as introduced, and very wisely as 
 I think, did not attempt to classify accidents, 
 and thus avoided the possibility of any inquiry 
 as to how the accident occurred. If it arose 
 in the course of the workman's employment, 
 that was to be enough ; of course it must have 
 been an accident and not an intentional act ; 
 but if an accident it were, that was to be 
 enough. 
 
 This bold treatment of the question shocked 
 the moral sense. The point is a small one, 
 for the number of accidents solely attributable 
 to the fault of the workmen is not large, but 
 being " stuff o' the conscience," it excited 
 loquacity. We are all moralists in the lower 
 branch of the Legislature, and both sides agreed 
 that as a matter of morals the man who alone 
 
86 LAW OF EMPLOYERS' LIABILITY iv 
 
 had occasioned an accident by his serious and 
 wilful misconduct ought not to be allowed to 
 get a penny out of it. TO the height of 
 this great argument we all arose, and I with 
 the rest, though remembering as I did that 
 in the majority of these cases the guilty 
 author of the accident is the first to perish by 
 it, thus at once escaping from the jurisdiction 
 of a judge of County Courts ; and how too 
 frequently he leaves behind him in sorry 
 plight a widow and infant children, my 
 passion for punishment, my lust to indulge 
 my moral sentiments, was not so violent as it 
 seemed to be in the case of austerer persons. 
 
 Accordingly the following words were added 
 to the Bill : " If it is proved that the accident 
 is solely attributable to the serious and wilful 
 misconduct of a workman, any compensation 
 claimed in respect of injury to that workman 
 shall be disallowed." 
 
 Excellent morality ! But on what does it all 
 rest ? Upon these words, " If it is proved." 
 That is the worst of morality : it can only 
 operate on facts, and facts must be proved, 
 and in order to prove them they must be 
 inquired into. You cannot say to the work- 
 
IV THE NEW BILL 87 
 
 man who holds up a bleeding stump, once his 
 strong right arm, " I have nothing for you." 
 You cannot say to a weeping widow, whose 
 husband lies in her back parlour a mangled 
 corpse, " Go, get thee to a workhouse ! Your 
 man was a careless rogue." These gratifications 
 cannot be yours until the facts have been 
 proved, established, and declared — until our 
 old litigious ftiends, " the surrounding circum- 
 stances," have been sifted. And what is the 
 process by which this is done but that very 
 litigation the abolition of which has been 
 declared to be the life and soul of the whole 
 Bill? 
 
 It is all very well to wag the head and say 
 it cannot happen — happen occasionally it must 
 and will. An accident occurs down a mine or 
 in a factory, the insurance office, which in nine 
 cases out of ten will have to pay, must in a 
 good many cases inquire into the cause of the 
 accident — astute persons will be employed to 
 look up witnesses and to take proofs — in fact, 
 to get up a case. True it is that the onus 
 will be on the employer, that is, the insurance 
 office, to show that the accident was solely 
 attributable to the misconduct of the work- 
 
88 LAW OF EMPLOYERS' LIABILITY iv 
 
 man, and I readily admit that in most cases 
 it will be very difficult to shift this onus ; but 
 in those cases where it is shifted, it will be- 
 come the duty of the workman or his repre- 
 sentatives to prove that the employer was 
 guilty of contributory negligence, since if he 
 or they can establish this, the workman was 
 not solely to blame. Is this not, to use the 
 phrase employed in the House of Commons 
 by Mr. Burt, to leave the door ajar and to let 
 in both litigation and law ? 
 
 If people could only be got to see that the 
 new dogma has not got a moral basis at all, 
 they would recognise how inexpedient it is, 
 even in a small number of cases, to mix up 
 two different systems. 
 
 If a workman acts in such a manner as to 
 raise the inference that he meant to make an 
 end of himself, so far then as he is concerned 
 his death or injury was no accident; but once 
 the element of uncertainty enters in, it is 
 obviously wise to include all occurrences of 
 this kind, since by so doing you avoid the 
 necessity of proof 
 
 However, the Bill as amended establishes 
 the exception I have criticised. 
 
IV THE NEW BILL 89 
 
 But for this exception, negligence (within 
 the limits of the Bill) has disappeared, taking 
 with her common employment, contributory 
 negligence, and volenti nonjit injuria. These 
 dogmas, doctrines, maxims — call them what 
 you will — clearly have no place in a system 
 which exists, not for the purpose of fixing 
 liability, but of compensating for accidents of 
 every kind arising out of a man's employment. 
 
 I say within the limits of the Bill, for out- 
 side the Bill, and except so far as common 
 employment has been cut down by the Act of 
 1880, these dogmas, doctrines, maxims — call 
 them what you will — still adorn our common 
 law and apply in all their rigour to all 
 servants and workmen except those who are 
 included within the Bill. 
 
 The Bill is not a measure of law reform ; 
 indeed it is a Bill which allows the common 
 law to remain unreformed of set purpose, 
 and, as it were, by way of bribe to the work- 
 men within the Bill, in order to induce them 
 to accept the advantages it offers them, rather 
 than to seek relief in the nonsense-ridden 
 Courts of the land. 
 
 The Bill does not take away from the work- 
 
90 LAW OF EMPLOYERS' LIABILITY iv 
 
 man any of his common law rights or any of 
 his rights under the Act of 1880, but it takes 
 care to leave all the old lions in the path of 
 the man who ventures into the Queen's Courts 
 in pursuit of justice. It is hard to recognise 
 the reasonableness of this course. In all the 
 dangerous trades the doctrines of common 
 employment, contributory negligence and 
 assent, are abolished or rendered inapplicable ; 
 in the non-dangerous trades they remain in 
 full force. 
 
 This, then, being the new dogma, it is im- 
 portant to consider to whom it applies. The 
 Government very justly consider the Bill an 
 experiment, and are anxious to garner ex- 
 perience as to how it works in active operation 
 before applying it to the whole working com- 
 munity. The Government cannot be accused 
 of making the experiment on too small a scale, 
 for it is calculated that nearly one-half of the 
 whole working population are within its 
 scope, and the included half number all the 
 dangerous trades. It is easier to say who are 
 excluded than to enumerate the classes within 
 the Bill. Agricultural labourers are excluded, 
 except indeed so far as they may chance to be 
 
IV THE NEW BILL 91 
 
 engaged upon any work where fixed machinery 
 is employed ; seamen and sea-apprentices are 
 excluded ; domestic servants are excluded ; 
 tramway -men are excluded ; bargees are ex- 
 cluded ; the building trade is excluded, except 
 where the building exceeds thirty feet in 
 height, and is being constructed, demolished 
 or repaired by means of scaffolding, or where 
 steam, water or other mechanical power is 
 employed. Within the Bill are railway- 
 men, miners, quarrymen, and men engaged 
 in engineering as defined by the Bill. 
 Factories as defined by Section 93 of the, 
 Factory and Workshop Act, 1878, are within 
 the Bill ; but workshops, as defined by the 
 same section, are not. Laundries, when worked 
 by steam, water or other mechanical power, 
 are also within the Bill. 
 
 There can be no doubt that if the Bill 
 becomes law, the greater number of the acci- 
 dents which annually occur in our industrial 
 ranks will fall to be compensated under its 
 provisions. 
 
 The Bill provides " that the employer shall 
 not be liable under this Act in respect of any 
 injury 'which does not disable the workman 
 
92 LAW OF EMPLOYERS' LIABILITY iv 
 
 for a period of at least tivo weeks from earning 
 full wages at the work at which he was 
 employed." 
 
 You will remember that by the German 
 scheme the injured workman did not become 
 chargeable upon the corporation of employers 
 until he had been in bed thirteen weeks ; but 
 by this Bill the English workman must be 
 compensated by the individual employer at 
 the end of a fortnight. 
 
 The German system fosters and maintains 
 as one of its two integral parts a great friendly 
 society or group of affiliated societies main- 
 tained as to two-thirds of their total sub- 
 scriptions entirely by the working people, and 
 casts on these funds the duty of maintaining 
 the injured workman for thirteen weeks. The 
 English Bill leaves the first fortnight of illness 
 unprovided for, and then makes the individual 
 employer responsible for what the German 
 group of employers is not responsible for — 
 another eleven weeks. 
 
 It is much disputed what will be the eff'ect 
 of the Bill if it becomes law on our great 
 friendly societies. Some say it will most 
 injuriously afi'ect them ; for workmen will not. 
 
IV THE NEW BILL 93 
 
 SO it is suggested, subscribe to a society when 
 they will have a right to compensation, accord- 
 ing to a liberal scale, from their employer in 
 case of accidents ; and accidents, it is pointed 
 out, are the chief causes of a workman's illness. 
 To this it is replied — -first, there is a fortnight 
 left unprovided for ; second, there is a chance 
 of the employer being unable to pay the com- 
 pensation awarded ; and third, friendly socie- 
 ties have other objects besides compensation 
 for accidents. There is sickness arising from 
 ill-health, and there is old age as well as other 
 objects upon which the funds liberated by the 
 operation of the Bill may well and easily 
 be spent. The point is not one to dogmatise 
 upon, but the destruction of our huge friendly 
 societies cannot be contemplated without 
 dismay ; and I therefore rejoice to observe 
 that the best-instructed opinion is that they 
 will not be injured by the Bill, though some 
 of them may require a little readjustment. 
 Societies which are purely accident societies, 
 as, for example, the schemes that have been 
 established by some of the railway companies 
 for providing the necessary funds to com- 
 pensate for accidents, are in greater peril, and 
 
94 LAW OF EMPLOYERS' LIABILITY iv 
 
 in most instances will, I expect, abruptly 
 terminate. 
 
 I have already referred to another great 
 difference between the German and proposed 
 British system. In the former the liability to 
 pay compensation is a trade liability and is 
 borne by the whole trade ; but in the latter it 
 is an individual liability. By the Bill the 
 employer is liable just in the same way as he 
 is liable at common law for his own negligence, 
 and as he is, under the Act of 1880, for the 
 negligence in certain cases, of his servants. 
 
 This is indeed a difference. 
 
 I confess, as a lawyer, the British proposal 
 is the easier of comprehension, since it may 
 be based upon an implied obligation of the 
 employer to insure his workman's life and 
 limbs against accident whilst the workman is 
 in his employ. But that there should be 
 solidarity amongst employers is more a re- 
 ligious than a legal idea. It has its advan- 
 tages, but it seems a very illogical half-way 
 house between individual and State responsi- 
 bility. 
 
 Of course it is an excellent thing for the 
 workman, since it guarantees him the price of 
 
IV THE NEW BILL 95 
 
 his wounds as per scale. What an injured 
 man wants is not a judgment debt or a right 
 to prove in bankruptcy, but cash. In Germany 
 he gets his cash, in Austria he gets his cash, 
 by the French scheme he would get his cash, 
 by the British scheme he will frequently lose 
 it. This is thought very hard. Poor fellow ! 
 why should he not be paid ? But who is to 
 pay him ? He can only be paid by the em- 
 ployer, by the trade, or by the community. 
 Why should the community pay him any more 
 than it pays the man who is struck by light- 
 ning or gored by a bull ? Why should one 
 colliery proprietor pay for the accidents that 
 occur down the pits of another colliery pro- 
 prietor ? It is hard to say, whereas it is not 
 difficult to find a reason for making the 
 individual employer pay if he can. Of course 
 if he cannot pay it is hard upon the workman 
 as it is upon all the employer's creditors. It is 
 said nobody need have given him credit, 
 whereas the poor working man was bound to 
 work for him. This reasoning may be pushed 
 too far; Life presses heavily upon other folk 
 as well as on the artisan. 
 
 At any rate the Bill does not make the 
 
96 LAW OF EMPLOYERS' LIABILITY iy 
 
 plight of the "working man worse than before. 
 At common law his employer is the only person 
 he can shoot at. By this Bill he can shoot at 
 him more frequently. If the employer goes 
 l)ankrupt he only does what he could have 
 done before. 
 
 At the same time it is impossible not to 
 notice a growing disposition to treat accidents 
 happening in industrial life as a class by them- 
 selves, against which there ought to be com- 
 pulsory insurance. This Bill does not make 
 insurance compulsory, though it is so framed 
 as to make it almost necessary. The public 
 seem already to expect that the compensation 
 provided for by the Bill is always to be forth- 
 coming, and it can hardly be doubted that if 
 experience was to prove that in many cases the 
 working man did not in practice get his scale- 
 charges for accidents a demand would be made 
 for national insurance. 
 
 The scale of compensation provided for by 
 the Bill will be found in the First Schedule, 
 and it is so simple in its character as to need 
 no explanation. (See Appendix A.) 
 
 The scale is a liberal one, and, on the whole, 
 is as good as the award of a jury would be, 
 
IV THE NEW BILL 97 
 
 tempered as such awards are by the discretion 
 of judges and the wisdom of counsel not caring 
 to risk a new trial. Discussion has arisen as 
 to who ought to be dependants under Sec. 5 , 
 whether, for example, an able-bodied father 
 can properly be dependent upon the earnings 
 of a child, but such questions may safely be 
 left to the discretion of the arbitrator. The 
 12th Section of the First Schedule also excited 
 opposition, but this much may certainly be 
 said for it, that it is in the interest of the work- 
 ing man to be paid off as speedily as possible, 
 since he thereby is rid of the risk of the future 
 insolvency or incapacity of the employer to 
 make the weekly payments. 
 
 The Second Schedule arranges the manner 
 in which applications for compensation under 
 the Bill are to be dealt with. 
 
 Here we get upon the vexed question of 
 procedure. The mode proposed is Arbitration. 
 The Bill contemplates the existence of a Com- 
 mittee representative of an employer and his 
 workmen having power to settle matters under 
 the Act ; and by this Committee, or by their 
 Arbitrator, settled the matter will be unless 
 either party objects. 
 
 H 
 
98 LAW OF EMPLOYERS' LIABILITY iv 
 
 In case of objection or if there be no such 
 Committee, the matters are to be settled by a 
 single arbitrator or Conciliation Board to be 
 agreed upon between the parties, or, in the 
 absence of agreement, by the County Court 
 Judge, unless the Lord Chancellor thinks it 
 inconvenient that the County Court Judge 
 should be called upon to act, and if this be 
 so the arbitrator is to be appointed by such 
 County Court Judge. 
 
 Of course it is obvious that instances can 
 and must arise more or less of a litigious cha- 
 racter ; for example, one question which will 
 frequently arise will be whether the injury was 
 caused by an accident arising out of and in 
 the course of the employment of the workman 
 who was injured. In other words, where and 
 when was the admitted inj ury sustained ? An- 
 other question which may arise is, whether the 
 injury was caused by the personal negligence 
 or wilful act of the employer, or of any person 
 for whose act or default the employer is re- 
 sponsible. If the injury was so caused the 
 employer remains liable at Common Law, and 
 possibly under the Act of 1880 ; and in this case 
 the arbitrator can have no authority, except 
 
IV THE NEW -BILL 99 
 
 by the agreement of the parties. A third 
 question which may frequently arise is, whether 
 the employment is one to which the Act applies. 
 A fourth is whether the accident was solely 
 attributable to the serious and wilful miscon- 
 duct of the workman. All these are ques- 
 tions which may have to be dealt with by 
 the arbitrator, and his award upon them is 
 final. 
 
 The provisions as to notice are, that notice 
 of the accident shall be given as soon as prac- 
 ticable after the happening thereof, and that 
 the claim for compensation shall be made within 
 six months from the occurrence of the ac- 
 cident, or, in case of death, within twelve 
 months from the time of death, subject how- 
 ever to the proviso that the want of such 
 notice shall not be a bar to the maintenance 
 of such proceedings if it is found in the pro- 
 ceedings for settling the claim that the em- 
 ployer is not prejudiced in his defence by the 
 absence of such notice, or that such notice was 
 occasioned by accident or other reasonable 
 cause. 
 
 In their furious zeal against Costs, the 
 
 H 2 
 
100 LAW OF EMPLOYERS' LIABILITY iv 
 
 House of Commons has provided that in no 
 proceedings under the Bill shall Counsel or 
 Solicitor be allowed to appear, except by 
 special leave, or on appeal to the Court of 
 Appeal, nor shall any Solicitor have a lien on 
 the compensation moneys for his costs. Crom- 
 well once found to his disgust in his raid 
 against the Court of Chancery that the " sons 
 of Zeruiah " were too much for him. I hope 
 Mr. Chamberlain may succeed where Cromwell 
 failed. 
 
 The question of contracting out, around 
 which so fierce a battle was fought in 1893, is, 
 having regard to the provisions of this Bill, 
 almost without importance, since contracting 
 out is expressly forbidden except in cir- 
 cumstances not likely to be of frequent 
 occurrence. 
 
 Those circumstances will be found stated in 
 the 4th Sub-section of Clause I. 
 
 The effect of this is that the employer can- 
 not contract himself out of the Bill except by 
 a certified scheme not less favourable to the 
 workmen and their dependants than the pro- 
 visions of the Bill itself. 
 
IV THE NEW BILL 101 
 
 A valuable clause, relating to sub-contracts, 
 will also be found in the Bill (Clause 2). 
 
 I do not think I can usefully add any more 
 by way of explanation of a measure which has 
 not yet passed through the crucible of the 
 House of Lords. 
 
APPENDIX A 
 A BILL 
 
 [AS AMENDED IN COMMITTEE] 
 TO 
 
 Aifnend the Law with respect to Compensation to A. D. 1897. 
 Workmen for accidental Injuries suffered in 
 the course of their Employment. 
 
 Be it enacted by the Queen's most Excellent Majesty, 
 
 by and with the advice and consent of the Lords 
 
 Spiritual and Temporal, and Commons, in this present 
 
 Parliament assembled, and by the authority of the 
 
 5 same, as follows : — 
 
 1. — (1.) If in any employment to which this Act Liability- 
 applies personal injury by accident arising out of and ° certain 
 in the course of the employment is caused to a work- to ^oii- 
 man, his employer shall, subject as herein-after men- men for 
 10 tioned, be liable to pay compensation in accordance iiyi"®^- 
 with the First Schedule to this Act, such compensation 
 shall be payable whether the injury occasioned arises 
 from the act of the employer or of some person in his 
 employ, or from the act of a stranger thereto. Pro- 
 
104 LAW OF EMPLOYERS' LIABILITY 
 
 A.D. 1897. vided that where such injury shall be occasioned by the 
 act of a stranger under circumstances creating a legal 
 liability to pay damages in respect thereof, the work- 
 man may at his option proceed either at law against 
 such person to recover damages or against his employer 5 
 for compensation under this Act, and if he be compen- 
 sated under this Act, the employer shall be entitled to 
 enforce in the name of the workman all rights of action 
 possessed by him against the person occasioning such 
 injury as aforesaid. 10 
 
 (2.) Provided that :— 
 
 {a.) The employer shall not be liable under this Act 
 in respect of any injury which does not disable 
 the workman for a period of at least two weeks 
 from earning full wages at the work at which 16 
 he was employed ; 
 (h.) When it is decided, as hereafter provided, that 
 the injury 'was caused by the personal negligence 
 or wilful act of the employer or of some person 
 for whose act or default the employer is respon- 20 
 sible, nothing in this Act shall affect any civil 
 liability of the employer, but in that case the 
 amount of damages due from such employer 
 may, at the request of the persons claiming 
 compensation, be settled by arbitration in ac- 25 
 cordance with the Second Schedule to this Act, 
 or may at the option of such persons be re- 
 covered from such employer by the same pro- 
 ceedings as were open to such persons before 
 the commencement of this Act ; but the em- 30 
 ployer shall not be liable to pay compensation 
 both independently of and also under this Act, 
 and shall not be liable to pay compensation 
 independently of this act, except in case of such 
 personal negligence or wilful act ; 3 5 
 
APPENDIX A 105 
 
 (c.) If it is proved that the accident is solely at- a. D. 1897. 
 tributable to the serious and wilful misconduct — 
 of a workman, any compensation claimed in 
 respect of injury to that workman shall be dis- 
 5 allowed. 
 
 (3.) If any question arises as to whether the injury 
 was caused by the personal negligence or wilful act of 
 the employer, or of any person for whose act or default 
 the employer is responsible, or whether the injury was 
 10 caused by accident arising out of and in the course of 
 the employment of the workman injured, or whether 
 the accident was solely attributable to the serious and 
 wilful misconduct of the workman in respect of whose 
 injuries compensation is claimed, or as to the amount or 
 15 duration of compensation under this Act, or otherwise 
 as to the Hability for compensation under this Act, the 
 question, if not settled by agreement, and any question 
 as to whether the employment is one to which this Act 
 applies, shall, subject to the provisions of the First 
 20 Schedule to this Act, be settled by arbitration, in 
 accordance with the second Schedule to this Act. Pro- 
 ceedings for the recovery under this Act of compensa- 
 tion for an injury shall not be maintainable unless 
 notice of the accident has been given as soon as prac- 
 25 ticable after the happening thereof, and the claim for 
 compensation with respect to such accident has been 
 made within six months from the occurrence of the 
 accident causing the injury, or, in case of death, within 
 twelve months from the time of death. Provided 
 30 always that the want of such notice shall not be a bar 
 to the maintenance of such proceedings if it is found in 
 the proceedings for settling the claim that the employer 
 is not prejudiced in his defence by the absence of such 
 notice, or that such absence was occasioned by mistake 
 35 or other reasonable cause. Notices shall be served in 
 
106 LAW OP EMPLOYERS' LIABILITY 
 
 A. D. 1897. the manner provided for by the Employers' Liability 
 Act, 1880, secl^ion seven, 
 
 (4.) If the Registrar of Friendly Societies, after 
 ascertaining the views of the employers and workmen, 
 certifies that any scheme of compensation or insurance 5 
 for the workmen in any employment is on the whole 
 not less favourable to the workmen and their depend- 
 ants than the provisions of this Act, the employer may, 
 until the certificate is revoked, contract with any of 
 those workmen that the provisions of the scheme shall be 10 
 substituted for the provisions of this Act, and thereupon 
 the employer shall be liable only in accordance with the 
 scheme, but, save as aforesaid, this Act shall apply, 
 notwithstanding any contract to the contrary made 
 after the commencement of this Act. No scheme shall 15 
 be so certified which contains an obligation upon the 
 workmen to join the scheme as a condition of their 
 hiring. ' 
 
 If the funds under any such scheme are not sufficient 
 to meet the compensation payable thereout the em- 30 
 ployer shall be liable to make good the amount of com- 
 pensation which would be payable under this Act. 
 
 (5.) The Registrar of Friendly Societies shaU in 
 every' year make a report of his proceedings under 
 this Act, and that report shall be laid before Parlia- 25 
 ment. 
 
 (6.) If any workmen or their representatives shall 
 submit to the said Registrar prima facie evidence that 
 the provisions of any scheme are no longer so favour- 
 able to the workman as the provisions of this Act, or that 30 
 the provisions of such scheme are being violated, or that 
 the same is not being fairly administered by the em- 
 ployers, or that satisfactory reasons exist for revoking 
 the certificate, then he shall examine into the complaint, 
 and if satisfied that good cause exists for such com- 35 
 
APPENDIX A 107 
 
 plaint, shall, unless the cause of complaint is removed, A. D. 1897. 
 revoke the certificate. — 
 
 (7.) Whenever a scheme has been certified as aforesaid, 
 it shall be the duty of the employer to answer all inquiries 
 and to furnish all such accounts as may from time to 
 time be required by the Registrar of Friendly Societies. 
 
 2. Where any person in the execution of any work 
 within the scope of his trade or business, and for the Sub-con- 
 
 , ^ purpose of executing such work, is in occupation of or *''*<^^™g- 
 has control over the place or premises in or upon which 
 such work is to be done, he shall be liable to any work- 
 man engaged in the execution of the work therein or 
 thereupon for the amount of any claim which such work- 
 man may have under this Act, or in respect of personal 
 negligence or wilful act independently of this Act, against 
 any sub-contractor. Provided that any person liable under 
 this section shall be entitled to indemnity against any 
 other person who would have been liable independently 
 of this section. All questions arising under this section 
 
 ^" shall be settled by arbitration as provided by this Act. 
 
 3. Where an employer who is the owner or occupier Liability 
 of any premises has engaged or contracted with any 1^.^°^^ tgj. 
 other person to execute any work, act, or thing in, upon, extraneous 
 or about such premises not within the scope of the work. 
 
 -"^ trade or business of such employer, and such other 
 person employs or directs and controls the workmen 
 engaged in such work, act, or thing, then, in the event 
 of any of such workmen being injured whilst so en- 
 gaged, such other person shall be deemed to be the em- 
 
 ^^ ployer of such workmen for the purposes of this Act, and 
 not the owner or occupier of the premises. 
 
 4. Where any employer becomes liable under this Act y"™^™^^' 
 to pay compensation to any workman or his representa- workmen 
 tives in respect of any accident, and is entitled to any sum in case of 
 
 35 from insurers of such liability, then in the event of the j.^^y ^f 
 bankruptcy or liquidation of such employer such work- employer. 
 
108 LAW OF EMPLOYERS' LIABILITY 
 
 A. D. 1897. man or representative shall have a charge upon the 
 sum aforesaid for the payment of the money so due to 
 him. 
 Applica- 5. — (1.) This Act shall apply only to employment 
 
 tionof Act on, in, or about a railway, factory, mine, quarry, or 5 
 tbns ^ '" engineering work, and to employment on, in, or about 
 any building exceeding thirty feet in height, which is 
 being constructed, demolished, or repaired by means of 
 a scaffolding, or on which machinery driven by steam, 
 water, or other mechanical power is being used for the 10 
 purpose of the construction, demolition, or repair 
 thereof. 
 
 (2.) In this Act— 
 
 " Railway " means the railway of any railway 
 36 & 37 company to which the Regulation of Rail- 15 
 
 Vict. c. 48. ways Act, 1873, applies, and "railway" and 
 
 ^' " railway company " have the same meaning 
 
 as in that Act, and includes light railways 
 made under the Light Railways Act, 1896. 
 " Factory " has the same meaning as in the Factory 20 
 41 & 42 and Workshop Acts, 1878 to 1891, and also 
 
 s 93 54& includes any dock, wharf, quay, _ warehouse, 
 
 55 Vict. u. machinery, or plant, to which any provision 
 
 75. of the Factory Acts is applied by the Factory 
 
 and Workshop Act, 1895, and every laundry 25 
 
 58 & 59 worked by steam, water, or other mechanical 
 
 Vict. e. 37. J ' > 
 
 s. 23. 50 & PO^er. 
 
 51 Vict. u. " Mine " means a mine to which the Coal Mines 
 
 58- ss. 3, Regulation Act, 1887, or the Metalliferous 
 
 gs'^j. 35 Mines Regulation Act, 1872, applies. 30 
 
 Vict. c. 77. "Quarry" means a quarry under the Quarries 
 
 SS.3, 41. Act, 1894. 
 
 Vict. c. 42. " Engineering work " means any work of construc- 
 
 tion or alteration of a railroad, harbour, dock, 
 canal, or sewer, and includes any other work 35 
 on which machinery driven by steam, water, 
 
APPENDIX A 109 
 
 or other mechanical power is used for the A. D. 1897. 
 purpose of the construction or alteration 
 thereof. 
 " Employer " includes any body of persons corporate 
 5 or unincorporate. 
 
 " Workman " includes every person who is engaged 
 in an employment to which this Act apphes, 
 whether by way of manual labour or other- 
 wise, and whether his agreement is one of 
 10 service or apprenticeship or otherwise, and is 
 
 expressed or implied, is oral or in writing. 
 6. — (1.) This Act shall not apply to persons in the Applica- 
 naval or military service of the Crown, but otherwise tion to 
 shall apply to any employment by or under the Crown y^o^'^ili^ 
 1 5 to which this Act would apply if the employer were a ment of 
 private person. Crown. 
 
 (2.) The Treasury may, by warrant laid before Par- 
 liament, modify for the purposes of this Act their 
 warrant made under section one of the Superannuation 50 & 51 
 20 Act, 1887. Vict c. 67. 
 
 7. Any contract existing at the commencement of Pi'ovisiou 
 this Act, whereby a workman relinquishes any right to existing 
 compensation from the employer for personal injury contracts. 
 arising out of and in the course of his employment, shall 
 25 not, for the purposes of this Act, be deemed to continue 
 after the time at which the workman's contract of 
 service would determine if notice of the determina- 
 tion thereof were given at the commencement of this 
 Act. 
 30 8. — (1.) This act shall come into operation on the '^°™- 
 thirty-first day of March one thousand eight hundred ^^^^^ ^f 
 and ninety-eight. Act and 
 
 (2.) This Act- may be cited as the Workmen's Com- short title. 
 pensation Act, 1897. 
 
110 LAW OF EMPLOYERS' LIABILITY 
 
 A. D. 1897. SCHEDULES. 
 
 FIRST SCHEDULE 
 
 Scale and Conditions op Compensation. 
 
 Scale. 
 
 (1.) The amount of compensation under this Act 5 
 shall be — 
 
 (a.) where death results from the injury — 
 
 (i.) if the workman leaves dependants, a sum 
 equal to his earnings during the three years 
 next preceding the injury, or the sum of one 10 
 hundred and fifty pounds, whichever of those 
 sums is the larger, but not exceeding in any 
 case three hundred pounds, provided that the 
 amount of any weekly payments made under 
 this Act shall be deducted from such sum ; and 1 5 
 (ii.) if he leaves no dependants, the reasonable 
 expenses of his medical attendance and burial, 
 not exceeding ten pounds ; 
 (6) in case of total or partial incapacity for work 
 resulting from the injury, a weekly payment during 20 
 the incapacity after the second week not exceeding 
 fifty per cent, of his average weekly earnings at 
 that employment during the previous twelve months, 
 but if the period of his engagement has been less 
 than twelve months, then the average during the 25 
 period of his actual engagement, such weekly pay- 
 ment not to exceed one pound. 
 
APPENDIX A 111 
 
 (2.) In fixing the amount of the weekly payment, A.D. 1897. 
 regard shall be had to the difference between the amount — 
 of the weekly earnings of the workman before the 
 accident and the amount which he is able to earn after 
 5 the accident. 
 
 (3.) The payment shall be made on the application 
 of the person entitled thereto, or his authorised repre- 
 sentatives. 
 
 (4.) The payment shall, in case of death, be made to 
 
 1 the legal personal representative of the workman, or, if he 
 
 has no legal personal representative, to his dependants, or, 
 
 if he leaves no dependants, to the person to whom 
 
 the expenses are due. 
 
 (5.) The expression "dependants" in this schedule q^-k, 
 1 5 means such members of the workman's family specified yict. c. 93. 
 in the Fatal Accidents Act, 1846, as were wholly or in 
 part dependent upon the earnings of the workman at 
 the time of or immediately prior to his death ; and any 
 question as to who is a dependant, or as to the amount 
 20 payable to each dependant shall, in default of agree- 
 ment, be settled by arbitration under this Act. 
 
 (6.) The sum allotted as compensation may be in- 
 vested or otherwise appUed for his benefit as directed 
 by the committee or other arbitrator. 
 25 (7.) Any sum ordered by the committee or arbitrator 
 to be invested may be ordered to be invested in whole 
 or in part in the Post Office Savings Bank by the 
 registrar of the county court in his name as registrar. 
 (8.) Any sum so ordered to be invested may be 
 30 accepted by the Postmaster-General as a deposit in 
 the name of the registrar as such, and the provisions of 
 any statute or regulations respecting the limits of deposits 
 in savings bank, and the declaration to be made by a 
 depositor, shall not apply to such sums. 
 35 (9.) No part of any money invested in the name of 
 
112 LAW OF EMPLOYERS' LIABILITY 
 
 A. D, 1897. the registrar of any county court in the Post Office 
 Savings Bank under this Act, shall be paid out to any 
 registrar, except upon authority addressed to the Post- 
 master-General by the Treasury or by the judge. 
 
 (10.) Any person deriving any benefit under any 5 
 moneys paid into a post office savings bank under the 
 provisions of this Act, may nevertheless open an account 
 in a post office savings bank or in any other savings 
 bank in his own name, without being liable to any 
 penalties imposed by any statute or regulations in re- 10 
 spect of the opening of accounts in two savings banks, 
 or of two accounts in the same savings bank. 
 
 (11.) Any weekly payment maybe reviewed at the 
 request either of the employer or of the workman, and 
 on such review may be ended, diminished or increased, 15 
 subject to the maximum above provided, and the amount 
 of payment shall, in default of agreement, be settled by 
 arbitration under this Act. 
 
 (12.) Where any weekly payment has been continued 
 for not less than twelve months the liability thereof 20 
 may, on the application of either the workman or the 
 employer, be redeemed by the payment of a lump sum, 
 to be settled by arbitration under this Act, but not 
 exceeding three hundred and twelve times the weekly 
 payment payable at the date of the application. 25 
 
 (13.) A weekly payment shall not be capable of being 
 assigned, charged, or attached, and shall not pass to any 
 other person by operation of law. 
 
 (14.) In the application of the Act and of this 
 schedule to Scotland the expression " dependants," 30 
 means the persons who according to the law of Scotland 
 are entitled to sue the employer for damages or solatium 
 in respect of the death of the workman, and who are 
 wholly or in part dependant upon the earnings of the 
 workman at the time of or immediately prior to his death. 35 
 
APPENDIX A 113 
 
 SECOND SCHEDULE. A.D.1897. 
 
 Arbitration. 
 
 The following provisions shall apply for settling any 
 matter which under this Act is to be settled by arbi- 
 5 tration : — 
 
 (1.) If any committee, representative of an employer 
 and his workmen, exists with power to settle matters 
 under this Act in the case of the employer and work- 
 men, the matter shall, unless either party object, by 
 10 notice in writing sent to the other party before the 
 committee meet to consider the matter, be settled by 
 the arbitration of such committee, or be referred by 
 them in their discretion to an arbitrator. 
 
 (2.) If either party so objects, or there is no such 
 15 committee, the matter shall be settled by a single arbi- 
 trator or conciliation board agreed on by the parties, or 
 in the absence of agreement by the county court judge, 
 or if in England the Lord Chancellor certifies that 
 under the circumstances of that particular district it is 
 20 not convenient that the county court judge should be 
 called upon to act as arbitrator, by a single arbitrator 
 appointed by such county court judge. 
 
 (3.) In cases in which the county court judge or an 
 arbitrator appointed by him is the arbitrator, the work- 
 25 man or his representative may deliver to the registrar 
 of the county court of the district in which he resides 
 a statement of the nature of his claim, with his name 
 and address and that of the employer, and it shall be 
 the duty of the registrar to give notice of the said 
 30 claim to the employer, and to make the necessary 
 
 I 
 
114 LAW OF EMPLOYERS' LIABILITY 
 
 A. D. 1897. arrangements for the arbitration, and give notice thereof 
 to both parties, and all such claims may be amended by 
 the arbitrator on such terms as to adjournment or 
 otherwise as he thinks just, in order that the questions 
 in dispute may be disposed of. 5 
 
 (4.) Any arbitrator other than the county court judge 
 shall be paid out of moneys to be provided by Parliament 
 in accordance with regulations to be made by the 
 Treasury. 
 
 (5.) The Arbitration Act, 1889, shall not apply to 10 
 any arbitration under this Act, but an arbitrator may, 
 if he thinks fit, submit any question of law for the decision 
 of the county court judge, and the decision of the judge on 
 any question of law, either on such submission, or in 
 any case where he himself acts as arbitrator under this 15 
 Act, shall, subject to a right of appeal in every such 
 case by any party to Her Majesty's Court of Appeal, 
 be final ; and the county court judge, or the arbitrator 
 appointed by him, shall, when sitting as arbitrator, 
 have the same powers of procuring the attendance of 20 
 witnesses and the production of documents as if the 
 claim for compensation had been made by plaint in the 
 county court. 
 
 (6.) In any proceedings under this Act no party 
 or other person shall appear to be attended by counsel 25 
 or solicitor except by the leave of the court or arbi- 
 trator, or on any appeal to the Court of Appeal. 
 
 (7.) The costs of the arbitration shall be in the dis- 
 cretion of the arbitrator. 
 
 (8.) Where the amount of compensation under this 30 
 Act shall have been ascertained, or any weekly pay- 
 ment varied, or any other matter decided, under this 
 Act, either by a committee or by an arbitrator or by 
 agreement, a memorandum thereof shall be sent by the 
 said committee or arbitrator, or by any party interested, 35 
 
APPENDIX A 115 
 
 to the registrar of the county court for the district in A. D. 1897. 
 which any person entitled to such compensation resides, 
 who shall, on being satisfied as to its genuineness, 
 record such memorandum in a special register without 
 5 charge, and thereupon the said memorandum shall for 
 all purposes be enforceable as a county court judgment. 
 Provided that the county court judge may at any time 
 rectify such register. 
 
 (9.) The duty of a county court judge under this 
 
 10 Act shall, subject to rules of court, be part of the 
 duties of the county court, and the officers of the court 
 shall act accordingly. 
 
 (10.) Any sum awarded as compensation shall be 
 paid on the receipt of the person entitled, and his 
 
 1.5 solicitor or agent shall not be entitled to recover from 
 him, or to claim a lien on the amount recovered for, 
 any costs except such as have been awarded by the 
 arbitrator. 
 
 (11.) The Secretary of State at the request of any 
 
 20 committee, judge, or other arbitrator shall appoint 
 legally qualified medical practitioner to report on any 
 matter which seems material to any question arising in 
 the arbitration, and the expense of any such medical 
 practitioner, shall, subject to treasury regulations, be 
 
 2.5 paid out of moneys to be provided by Parliament. 
 
 (12.) In the application of this schedule to Scotland 
 " sheriff" shall be substituted for " county court judge," 
 " sheriff court " for " county court," and " act of sede- 
 runt " for "rules of court." Any award or agreement 
 
 30 as to compensation under this Act may be recorded in 
 the books of council and session or sheriff court books, 
 and shall be enforceable in like manner as a recorded 
 decree arbitral. Any application to the sheriff as 
 arbitrator shall be heard, tried, and determined sum- 
 
 35 marily in the manner provided by the fifty-second 
 
 I 2 
 
116 LAW OF EMPLOYERS' LIABILITY 
 
 A.D.1897. section of the SherijBf Courts (Scotland) Act, 1876, 
 subject to the declaration that it shall be competent to 
 either party to require the sheriff to state a case on any 
 question of law determined by him, and his decision 
 thereon in such case may be submitted to either divi- 5 
 sion of the Court of Session, who, if they consider that 
 the point involved is of general importance, may hear 
 and determine the same finally, and remit to the sheriff 
 with instruction as to the judgment to be pronounced. 
 
 (13. J In the application of this schedule to Ireland 10 
 the expression " county court judge " shall include the 
 recorder of any city or town. 
 
APPENDIX B 
 
 CHAPTER 42 
 
 An Act to extend and regulate the Liability o/a.D. 1880 
 Bmployers to make Compensation for Personal 
 Injuries suffered by Workmen in their service. 
 
 [7th September, 1880.] 
 
 Be it enacted by the Queen's most Excellent Majesty, 
 by and with the advice and consent of the Lords 
 Spiritual and Temporal, and Commons, in this present 
 Parliament assembled, and by the authority of the same, 
 as follows : 
 
 1. Where [after the commencement of this Act] meat of 
 personal injury is caused to a workman law. 
 
 (1.) By reason of any defect in the condition of the 
 ways, works, machinery, or plant connected 
 with or used in the business of the employer; or 
 (2.) By reason of the negligence of any person in the 
 service of the employer who has any superin- 
 tendence entrusted to him whilst in the exercise 
 of such superintendence ; or 
 
 1 Words within brackets repealed by Statute Law Revision 
 Act of 1894. 
 
118 
 
 LAW OF EMPLOYERS' LIABILITY 
 
 A.D. 1880. (3.) By reason of the negligence of any person in the 
 service of the employer to whose orders or 
 directions the workman at the time of the injury 
 was bound to conform, and did conform, where 
 such injury resulted from his having so con- 
 formed ; or 
 
 (4.) By reason of the act or omission of any person 
 in the service of the employer done or made in 
 obedience to the rules or byelaws of the em- 
 ployer, or in obedience to particular instructions 
 given by any person delegated with the authority 
 of the employer in that behalf ; or 
 
 (5.) By reason of the negligence of any person in the 
 service of the employer who has the charge or 
 control of any signal, points, locomotive engine, 
 or train upon a railway, 
 
 the workman, or in case the injury results in death, 
 the legal personal representatives of the workman, and 
 any persons entitled in case of death, shall have the 
 same right of compensation and remedies against the 
 employer as if the workman had not been a workman 
 of nor in the service of the employer, nor engaged in 
 his work. 
 
 Excep- 
 tions to 
 amend- 
 ment of 
 law. 
 
 2. A workman shall not be entitled under this Act 
 to any right of compensation or remedy against the 
 employer in any of the following cases ; that is to say, 
 
 (1.) Under sub-section one of section one, unless the 
 defect therein mentioned arose from, or had not 
 been discovered or remedied owing to the neg- 
 ligence of the employer, or of some person in the 
 service of the employer, and entrusted by him 
 with the duty of seeing that the ways, works, 
 machinery, or plant were in proper condition. 
 
APPENDIX B 119 
 
 (2.) Under sub-section four of section one, unless the A. D. 1880. 
 injury resulted from some impropriety or defect — 
 in the rules, byelaws, or instructions therein 
 mentioned ; provided that where a rule or bye- 
 law has been approved or has been accepted as 
 a proper rule or byelaw by one of Her Majesty's 
 Principal Secretaries of State, or by the Board 
 of Trade or any other department of the 
 Government, under or by virtue of any Act of 
 Parliament, it shall not be deemed for the pur- 
 poses of this Act to be an improper or defective 
 rule or byelaw. 
 
 (3.) In any case where the workman knew of the 
 defect or negligence which caused the injury, 
 and failed within a reasonable time to give, or 
 cause to be given, information thereof to the 
 employer or some person superior to himself in 
 the service of the employer, unless he was aware 
 that the employer or such superior already knew 
 of the said defect or negligence. 
 
 3. The amount of compensation recoverable under LimilFw 
 this Act shall not exceed such sum as may be found to sum re- 
 be equivalent to the estimated earnings, during the ™^^'"*''l^ 
 three years preceding the injury, of a person in the same pensation. 
 grade employed during those years in the like employ- 
 ment and in the district in which the workman is 
 employed at the time of the injury. 
 
 4. An action for the recovery under this Act of Limit of 
 compensation for an injury shall not be maintainable time for 
 unless notice that injury has been sustained is given ^'^'^°'^^^ 
 within six weeks, and the action is commenced within pensatioD. 
 six months from the occurrence of the accident causing 
 
 the injury, or, in case of death, within twelve months 
 
120 
 
 LAW OF EMPLOYERS' LIABILITY 
 
 A. D. 1880. from the time of death : Provided always, that in case 
 of death the want of such notice shall be no bar to the 
 maintenance of such action if the judge shall be of 
 opinion that there was reasonable excuse for such want 
 of notice. 
 
 Money 
 payable 
 binder 
 penalty 
 to be de- 
 ducted 
 from com- 
 pensation 
 under Act. 
 
 Trial of 
 actions. 
 
 5. There shall be deducted from any compensation 
 awarded to any workman, or representatives of a work- 
 man, or persons claiming by, under, or through a work- 
 man in respect of any cause of action arising under 
 this Act, any penalty or part of a penalty which, may 
 have been paid in pursuance of any other Act of 
 Parliament to such workman, representatives, or persons 
 in respect of the same cause of action ; and where an 
 action has been brought under this Act by any workman, 
 or the representatives of any workman, or any persons 
 claiming by, under, or through such workman for com- 
 pensation in respect of any cause of action arising under 
 this Act, and payment has not previously been made of 
 any penalty or part of a penalty under any other Act 
 of Parliament in respect of the same cause of action, 
 such workman, representatives, or person shall not be 
 entitled thereafter to receive any penalty or part of a 
 penalty under any other Act of Parliament in respect 
 of the same cause of action. 
 
 6. — (1.) Every action for recovery of compensation 
 under this Act shall be brought in a county court, but 
 may, upon the application of either plaintiff or de- 
 fendant, be removed into a superior court in like manner 
 and upon the same conditions as an action commenced 
 in a county court may by law be removed. 
 
 (2.) Upon the trial of any such action in a county 
 court before the judge without a jury one or more as- 
 sessors may be appointed for the purpose of ascertaining 
 the amount of compensation. 
 
APPENDIX B 21 
 
 (3.) For the purpose of regulating the conditions A.D. 1880. 
 and mode of appointment and remuneration of such 
 assessors, and all matters of procedure relating to their 
 duties, and also for the purpose of consolidating any 
 actions under this Act in a county court, and otherwise 
 preventing multiplicity of such actions, rules and regula- 
 tions may be made, varied, and repealed from time to 
 time in the same manner as rules and regulations for 
 regulating the practice and procedure in other actions 
 in county courts. 
 
 " County court '' shall, with respect to Scotland, 
 mean the " Sheriff's Court," and shall, with respect to 
 Ireland, mean the " Civil Bill Court." 
 
 In Scotland any action under this Act may be re- 40 & 41 
 moved to the Court of Session at the instance of either ^i<=t. o. 50. 
 party, in the manner provided by, and subject to the 
 conditions prescribed by, section nine of the Sheriff 
 Courts (Scotland) Act, 1877. 
 
 In Scotland the sheriff may conjoin actions arising 
 out of the same occurrence or cause of action, though 
 at the instance of different parties and in respect of 
 different injuries. 
 
 7, Notice in respect of an injury under this Act shall Mode of 
 give the name and address of the person injured, and ^Jti^e^of 
 shall state in ordinary language the cause of the injury injury. 
 and the date at which it was sustained, and shall be 
 served on the employer, or, if there is more than one 
 employer, upon one of such employers. 
 
 The notice may be served by delivering the same to 
 or at the residence or place of business of the person 
 on whom it is to be served. 
 
 The notice may also be served by post by a registered 
 letter addressed to the person on .whom it is to be 
 served at his last known place of residence or place of 
 
122 LAW OF EMPLOYERS' LIABILITY 
 
 A. D. 1880. business; and, if served by post, shall be deemed to 
 have been served at the time when a letter containing 
 the same would be delivered in the ordinary course of 
 post ; and, in proving the service of such notice, it shall 
 be sufficient to prove that the notice was properly ad- 
 dressed and registered. 
 
 Where the employer is a body of persons corporate 
 or unincorporate, the notice shall be served by deliver- 
 ing the same at or by sending it by post in a registered 
 letter addressed to the office, or, if there be more than 
 one office, any one of the offices of such body. 
 
 A notice under this section shall not be deemed 
 invalid by reason of any defect or inaccuracy therein, 
 unless the judge who tries the action arising from the 
 injury mentioned in the notice shall be of opinion that 
 the defendant in the action is prejudiced in his defence 
 by such defect or inaccuracy, and that the defect or in- 
 accuracy was for the purpose of misleading. 
 
 Deflni- §_ -p^j. ^jjjg purposes of this Act, unless the context 
 
 tions. ii • • 
 
 otherwise requires, — 
 
 The expression " person who has superintendence 
 entrusted to him " means a person whose sole or 
 principal duty is that of superintendence, and 
 who is not ordinarily engaged in manual labour : 
 
 The expression " employer " includes a body of 
 persons corporate or unincorporate : 
 
 The expression " workman " means railway servant 
 and any person to whom the Employers and 
 Workmen Act, 1875, applies. 
 
 9. [Repealed, Statute Law Revision Act, 1894.] 
 
 10. This Act may be cited as the Employers' 
 Liability Act, 1880, and shall continue in force till the 
 thirty-first day of December one thousand eight hundred 
 
 38&39 
 
 Viot. c. 90, 
 
 Com- 
 
 mence- 
 
 ment of 
 
 Act. 
 
 Short 
 
 title. 
 
APPENDIX B 123 
 
 and eighty-seven, and to the end of the then next Session A.D. 1880. 
 of Parliament, and no longer, unless Parliament shall 
 otherwise determine, and all actions commenced under 
 this Act before that period shall be continued as if the 
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