the extension of it effected by the Employers’ Liability Act 1880, and the new liabilities introduced by later acts.
At common law the liability of a master is of a very limited character. There is, of course, nothing to prevent a master and servant from providing by special contract in any way they please for their mutual rights in cases of personal injury to the servant. In such cases the Common law. liability will depend upon the terms of the special contract. But apart from any special agreement, it may be broadly stated that a master is liable to his servants only for injuries caused by his own negligence. Injuries to a servant may arise from accident, from the nature of the service, or from negligence; and this negligence may be of the master, of another servant of the master, or of a stranger. If the injury is purely accidental the loss lies where it falls. If it arises from the nature of the service, the servant must bear it himself; he has undertaken a service to which certain risks are necessarily incident; if he is injured thereby, it is the fortune of war, and no one can be made responsible. If the injury is caused by the negligence of a stranger, the servant has his ordinary remedy against the wrong-doer or any one who is responsible as a principal for the conduct of the wrong-doer. If it is caused by the negligence of a fellow-servant, he likewise has his ordinary remedy against the actual wrong-doer; but, by virtue of what is known as the doctrine of common employment, he cannot at common law make the master liable as a principal. The only case (independently of modern legislation: see below) in which he can recover damages from the master is where the injury has been caused by negligence of the master himself. A master is negligent if he fails to exercise that skill and care which, in the circumstances of the particular employment, are used by employers of ordinary skill and carefulness. If he himself takes part in the work, he must act with such skill and care as may reasonably be demanded of one who takes upon himself to do work of that kind. If he entrusts the work to other servants, he must be careful in their selection, and must not negligently employ persons who are incompetent. He must take proper care so to arrange the system of work that his servants are not exposed to unnecessary danger. If tools or machinery are used, he must take proper care to provide such as are fit and proper for the work, and must either himself see that they are maintained in a fit condition or employ competent servants to do so for him. If he is bound by statute to take precautions for the safety of his servants, he must himself see that that obligation is discharged. For breach of any of these duties a master is liable to his servant who is injured thereby, but his liability extends no further.
That his obligations to a servant are so much less than to a stranger is chiefly due to the doctrine of common employment. As a rule a master is responsible for the negligence of his servant acting in the course of his employment; but, from about the middle of the 19th century, it Common employ-ment. became firmly rooted in the law that this principle did not apply where the person injured was himself a servant of the master and engaged in a common employment with the servant guilty of the negligence. In effect this rule protects a master as against his servant from the consequences of negligence on the part of any other of his servants; to this there is no qualification except that, for the rule to apply, both the injured and the negligent servant must be acting in pursuance of a common employment. They must both be working for a common object though not necessarily upon the same work.
It is not easy to define precisely what constitutes a common employment in this sense, and there is peculiarly little judicial authority as to the limit at which work for the same employer ceases to be work in a common employment. It does not depend on difference in grade; all engaged in one business, from the manager to the apprentice, are within the rule. It does not depend on difference in work, if the work each is doing is part of one larger operation; all the servants of a railway company, whether employed on the trains, or at the stations, or on the line, are in a common employment. It does not necessarily depend on difference of locality; a servant who packs goods at the factory and a servant who unpacks them in the shop may well be in a common employment. On the other hand, it is not enough that the two servants are working for the same employer, if there is nothing in common between them except that they are making money for the same man; apart from special circumstances, the crews of two ships owned by the same company are probably not in common employment while navigating their respective ships. The test in each case must be derived from the view, invented by the courts, upon which the doctrine was based, namely, that the servant by entering upon the service consented to run all the risks incidental to it, including the risk of negligence on the part of fellow-servants; if the relation between the two servants is such that the safety of the one may, in the ordinary course of things, be affected by the negligence of the other, that negligence must be taken to be one of the risks of the employment assented to by the servant, and both are engaged in a common employment. In ninety-nine cases out of a hundred it will be found that the doctrine is applicable, and the master protected from liability. It is thus seen that, in general, no action will lie against a master at the suit of his servant, unless the servant can prove personal negligence on the part of the master causing injury to the servant. And in such action the master may avail himself of those defences which he has against a stranger. He may rely upon contributory negligence, and show that the servant was himself negligent, and that, notwithstanding the negligence of the master, the injury was proximately caused by the negligence of the servant. Or (except in cases where the injury results from a breach of a statutory duty) he may prove such facts as establish the defence expressed in the maxim, volenti non fit injuria; that is, he may prove that the injured servant knew and appreciated the particular risk he was running, and incurred it voluntarily with full understanding of its nature. Mere knowledge on the part of the servant, or even his continuing to work with knowledge, does not necessarily establish this defence; it must be knowledge of such a kind and in such circumstances that it can be inferred that the servant contracted to take the risk upon himself. The action at common law is subject to the general rule that personal actions die with the person; except so far as the remedy for money loss caused by death by negligence has been preserved in favour of a husband or wife and certain near relatives, under Lord Campbell’s Act (Fatal Accidents Act 1846).
Such was the law up to 1880. So long as industry was conducted on a small scale, and the master worked with his men, or was himself the manager, its hardship was perhaps little felt; his personal negligence could in many cases be established. But with the development of the The act of 1880. factory system, and the ever-growing expansion of the scale on which all industries were conducted, it became increasingly difficult to bring home individual responsibility to the employer. As industry passed largely into the control of corporations, difficulty became almost impossibility. The employer was not liable to a servant for the negligence of a fellow-servant, and therefore, in most cases of injury, was not liable at all. It is not surprising that the condition of things thus brought about, partly by the growth of modern industry and partly by the decisions of the courts, caused grave dissatisfaction. The justice of the doctrine of common employment was vigorously called in question. In the result the Employers’ Liability Act 1880 was passed. The effect of this act is to destroy the defence of common employment in certain specified cases. It does not abolish the doctrine altogether, nor, on the other hand, does it impose upon the master any new standard of duty which does not exist as regards strangers. All that it does is to place the servant, in certain cases, in the position of a stranger, making the master liable for the negligence of his servants notwithstanding the fact that they are in common employment with the servant injured. It is still necessary under the act, as at common law, to prove negligence, and the master may still rely upon the defences of contributory negligence and volenti non fit injuria. But under the act he cannot, as against the workmen who come within it and in the cases to which it applies, set up the defence that the negligence complained of was the negligence of a servant in a common employment. The act does not apply to all servants. It does not apply to domestic or menial servants, or to seamen, or to any except railway servants and “any person who, being a labourer, servant in husbandry, journeyman, artificer, handicraftsman, miner, or otherwise engaged in manual labour ... has entered into or works under a contract with an employer, whether the contract be oral or in writing, and be a contract of service or a contract personally to execute any work or labour.” Whether a servant, not being one of those specially named, is within the act depends on whether manual labour is the real and substantial employment, or whether it is merely
