CHAPTER VIII

EMPLOYERS' LIABILITY FOR ACCIDENTS

NOTHING is more characteristic of modern industry than the risks to which it exposes the work-people engaged in it. As will be seen presently, a large share of the burden of supporting men injured at their work has been placed on the shoulders of employers, who have therefore a direct pecuniary interest, apart from their humanitarian feelings, in keeping down the number of serious accidents. The Insurance Companies, by whose agency the burden of responsibility for accidents is rateably distributed over the whole body of insuring employers, are keen to detect slackness on the part of employers and wilful misconduct and malingering on the part of workmen. The Home Office, with its special inquiries, its reports from inspectors and certifying surgeons, and its special rules for dangerous occupations, is always seeking to reduce the preventable causes of accidents. In spite of all this a very large number of accidents continue to occur, and it can only be concluded that a large proportion of these are not preventable, in the sense that given workers that are human and, therefore, sometimes careless or inattentive or tired, given modern machinery and processes, it is inevitable that from time to time something will go wrong and some one will be injured.

Statistics are available for seven groups of industry, viz. shipping, factories, docks, mines, quarries, constructional work, and railways. In these industries in the year 1913 there were 3748 cases in which compensation was paid for

fatal accidents, and 476,920 cases in which compensation was paid for disablement.

If allowance is made for accidents not covered by legislation and for accidents in industries other than the seven groups mentioned above, 600,000 accidents to workmen per annum is a low estimate. Further statistics are given at the end of the chapter.

THE COMMON LAW POSITION

The common law did not concern itself with accidents as such, but only with accidents as consequences of some one's negligence. If A was negligent, and as a consequence B was injured, A had his common law remedy against B and could get damages. B also had a right to damages if A's negligence injured his cow or his wheelbarrow, and in fact claims for personal injury were at a disadvantage, as the common law had a rule that personal claims died with the aggrieved person, so that a special Act of Parliament (the Fatal Accidents Act, 1846) had to be passed to deal with cases of fatal accidents arising from negligence.

The common law did not hesitate to impose liability on a master for an accident to his servant arising out of the master's personal negligence. But with an ever-increasing complexity of mastership the master was less and less brought into contact with his men, and the question of liability for personal negligence became less and less important, and in the case of incorporated companies personal negligence has disappeared altogether, as the company is only a legal person and not a natural person. As, however, there are still some circumstances in which masters can conceivably be guilty of personal negligence from which accidents to their workmen arise, the common law position cannot be passed over. The duty of the employer is to provide proper and efficient machinery, a proper system of working, and reasonably competent workmen. Thus a master who supplied rotten planks or unsafe tackle, or who put an untrained man where a skilled man was essential, would be liable for an accident to a workman arising out of

his negligent breach of duty. But a master does not warrant that his servants shall never be careless or inattentive; and the carelessness of a reasonably competent workman which results in injury to a fellow-workman cannot be regarded as a breach by the master of this personal duty of careful selection so as to make the master liable for it. A master must take reasonable care to protect one servant from the risk of negligence on the part of his fellow-servants by associating him only with persons of ordinary care and skill, but the master's responsibility does not go beyond that. In one sense the master does not even guarantee ordinary care and skill, as it is sufficient if the servant selected is apparently of ordinary care and skill, as persons may be presumed to be if engaged through the ordinary trade channels. Thus in a case (Tarrant v. Webb, 18 C.B. 797) in which a workman had been injured through the failure of the scaffolding on which he was working, a failure due to the foreman's negligence, it was held that the master was not liable if he neither personally interfered with its erection nor knowingly employed an unskilful and incompetent person to erect it, and that it was a misdirection to the jury to ask them if the person employed was incompetent, as that fact by itself was not decisive of the master's responsibility.

Apart from personal negligence of this limited nature, the master had no liability for accidents occurring to his servants in the course of their work. These accidents for which the master was not liable fall into two classes(a) those which are due to a fellow-servant's negligence, and (b) those not attributable to negligence at all. As to the latter class, the common law on principle gave no remedy. The common law was concerned with negligence and not with accidents as such. As to the former class the common law had a great deal to say, though it was of little or no help to the workman. Its view on this point is known technically as the doctrine of common employment.' This doctrine draws a sharp distinction between a man's liability for his servant's negligence according as the injured person is a stranger or another of his servants. In general, the acts of

a servant when on his master's business rank in law as the acts of the master. Thus if a chauffeur on his way to call for his master negligently rides a person down, the master is liable for the chauffeur's act. The Courts were not prepared to extend this to the case of one servant being injured by the negligence of another servant. The ground for this distinction was a supposed bargain by the servant on entering the employment to run the risk of carelessness on the part of his fellow-servants. This bargain was of course as purely imaginary as the much more famous 'social contract' of the political philosophers. The whole problem and the common law solution of it was stated in the following terms in the leading case on the subject (Hutchinson v. York etc. Railway Company, 5 Exch. 343). "Put the case of a master employing A and B, two of his servants, to drive his cattle to market; it is admitted, if, by the unskilfulness of A, a stranger is injured, the master is responsible; not so if A by his unskilfulness hurts himself: he cannot treat that as the want of skill of his master. Suppose, then, that by A's unskilfulness B, the other servant, is injured while they are jointly engaged in the same service; there, we think, B has no claim against the master; they have both engaged in a common service, the duties of which impose a certain risk upon each of them, and in case of negligence on the part of the other, the party injured knows that the negligence is that of his fellow-servant and not of his master. He knows when he was engaged in the service that he was exposed to the risk of injury not only from his own want of skill and care, but on the part of his fellowservants also, and he must be supposed to have contracted on the terms that as between himself and his master he would run that risk."

This at least must be said for the common law, that having adopted the doctrine of common employment, it kept it within bounds by the adoption of two limitations, viz. (a) that there must be a common master as well as a common undertaking, and (b) that there must be an undertaking that is really common to both the servants.

It is quite usual for the work on an undertaking to be

subdivided so that one employer has a contract for part of the work, and one or more employers have contracts for the rest. If, for instance, two employers, A and B, have their men at work on one building, A's servant may have an action against B for injury arising from the negligence of B's servant.

As to the necessity for a real common service, the following extracts from leading cases will make the position plain : In the case of Bartonshill Company v. McQuire, 3 McQ. 307, it was said, "It is necessary in each particular case to ascertain whether the servants are fellow-labourers in the same work, because although a servant may be taken to have engaged to encounter all risks which are incident to the service which he undertakes, yet he cannot be expected to anticipate those which may happen to him on occasions foreign to his employment. Where servants, therefore, are engaged in different departments of duty, an injury committed by one servant upon the other by carelessness or negligence in the course of his peculiar work is not within the exception, and the master's liability attaches in that case in the same manner as if the injured servant stood in no such relation to him. There may be some nicety and difficulty in particular cases in deciding whether a common employment exists, but in general, by keeping in view what the servant must have known or expected to have been involved in the service which he undertakes, a satisfactory conclusion may be arrived at." In the case of McNaughton v. The Caledonian Railway Company, 19 Ct. Sess. Cas. 273, and 21 Ibid. 160, illustrations were given of 'different departments of duty.' "A dairy-maid is bringing home milk from the farm, and is carelessly driven over by the coachman. A painter or a slater is engaged at his work on the top of a high ladder placed against the side of a country house, and is injured by the carelessness of the gardener, who wheels his barrow against the ladder and upsets it. A clerk in a shipping company's office is sent on board a ship belonging to the company with a message to the captain, and he meets with injury by falling through a hatchway which the mate has carelessly left unfastened, though apparently closed. In such and similar cases it could hardly