incidental thereto; thus a carman who handles the goods he
carries may be within the act, but a tramcar driver or an omnibus
conductor is not. The act does not make the master liable for
the negligence of all his servants, but, speaking generally, only
for the negligent discharge of their duties by such as are entrusted
with the supervision of machinery and plant, or with superintendence,
or the power of giving orders, with the addition, in
the case of a railway, of the negligence of those who are given
the charge or control of signals, points, locomotive engines or
trains. The cases dealt with by the act are five in number; in
the first and fourth the words are wide enough to include
negligence of the employer himself, for which, as has been seen,
he is liable at common law. In such instances the workman has
an alternative remedy either at common law or under the act,
but in all other respects the rights given by the act are new, being
limitations upon the defence of common employment, and can be
enforced only under the act.
The first case is where the injury is caused 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, provided that such defect arises from, or has 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 are in proper condition. The second case is where the injury is caused by reason of the negligence of any person in the service of the employer who has any superintendence entrusted to him (that is, a person whose sole or principal duty is that of superintendence, and who is not ordinarily engaged in manual labour) whilst in the exercise of such superintendence. The third case is where the injury is caused 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 is bound to conform and does conform, where such injury results from his so conforming. The fourth case is where the injury is caused 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 by-laws of the employer, or in obedience to particular instructions given by any person delegated with the authority of the employer in that behalf, provided that the injury results from some impropriety or defect in such rules, by-laws or instructions. The fifth case is where the injury is caused 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.
In all these cases it is provided that the employer shall not be liable if it can be shown that the workman knew of the defect or negligence 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 he was aware that the employer or such superior already knew of the said defect or negligence. It was inevitable that these provisions should call for judicial interpretation, and a considerable body of authority has grown up about the act. Where general words are used, it must always occur that, between the cases which are obviously within and those which are obviously without the words, there are many on the border line. Thus, under the act, the courts have been called upon to determine the precise meaning of “way,” “works,” “machinery,” “plant,” and to say what is precisely meant by a “defect” in the condition of each of them. They have had to say what is included in “railway” and in “train,” what is meant by having “charge” or “control,” and to what extent one whose principal duty is superintendence may participate in manual labour without losing his character of superintendent, and what is the precise meaning of negligence in superintendence. These are only illustrations of many points of detail which, having called for judicial interpretation, will be found fully dealt with in the text-books on the subject. A workman who, being within the act, is injured by such negligence of a fellow-servant as is included in one or other of the five cases mentioned above, has against his employer the remedies which the act gives him. These are not necessarily the same as those which a stranger would have in the like circumstances; the amount of compensation is not left at large for a jury to determine, but is limited to an amount not exceeding such sum as may be found to be 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. Moreover, the right to recover is hedged about with technicalities which are unknown at the common law; proceedings must be taken in the county court, within a strictly limited time, and are maintainable only if certain elaborate provisions as to notice of injury have been complied with. Where the injury causes death the action is maintainable for the benefit of the like persons as are entitled under Lord Campbell’s act in an action at common law.
The law continued in this condition up to 1897. In the
majority of cases of injury to a servant, the doctrine of common
employment still protected the master; and where, under the
Employers’ Liability Act, it failed to do so, the liability was of a
limited character and often, owing to technicalities of procedure,
difficult to enforce. Moreover, there is nothing in the act to
prevent master and servant from entering into any special contract
they please; and in many trades it became a common practice
for contracts to be made wholly excluding the operation of
the act. In 1893 an attempt was made to alter the law by a total
abolition of the defence of common employment, so as to make
a master as liable to a servant as to a stranger for the negligence
of any of his servants acting in the course of their employment,
and at the same time to prohibit any agreements to forego the
rights so given to the servant. The bill did not become law,
and no further change was made until, in 1897, parliament took
the first step in what has been a complete revolution in the law
of employers’ liability. Up to that year, as has been seen, the
foundation of a master’s liability was negligence, either of the
master himself, or, in certain cases, of his servants. But by the
Workmen’s Compensation Act 1897, a new principle was introduced,
Acts of
1897 to
1906.
whereby certain servants in certain employments
were given a right to compensation for injuries, wholly
irrespective of any consideration of negligence or
contributory negligence. As regards such servants
in such employments the master was in effect made an insurer
against accidental injuries. The act was confessedly tentative
and partial; it dealt only with selected industries, and even
within these industries was not of universal application. But
where it did apply, it gave a right to a limited compensation in
every case of injury by accident arising out of and in the course of
the employment, whether that accident had been brought about
by negligence or not, and whether the injured servant had or
had not contributed to it by his own negligence.
The act applied only to employment on, or in, or about certain localities where, at the same time, the employer was what the act called an “undertaker,” that is, the person whose business was there being carried on. If we wanted to know whether a workman was within the act, we had to ask, first, was he employed on, or in, or about a railway, or a factory, or a mine, or a quarry, or an engineering shop, or a building of the kind mentioned in the act; secondly, was he employed by one who was, in relation to that railway, &c., the undertaker as defined by the act; and thirdly, was he at the time of the accident at work on, or in, or about that railway, &c. Unless these three conditions were fulfilled the employment was not within the act.
The employments to which the act applied comprised railways, factories (which included docks, warehouses and steam laundries), mines, engineering works and most kinds of buildings. “Workman” included every person engaged in an employment to which the act applied, whether by manual labour or otherwise, and whether his agreement was one of service or apprenticeship or otherwise, expressed or implied, oral or in writing.
By the Workmen’s Compensation Act 1900, the benefits of the act of 1897 were extended to agricultural labourers.
The Workmen’s Compensation Act 1906 (which came into force on the 1st of July 1907) extended the right of compensation for injuries practically to all persons in service, and also introduced many provisions not contained in the acts of 1897 and 1900 (repealed). It does not apply to persons in the naval or military service of the crown (s. 9), or persons employed otherwise than by way of manual labour whose remuneration exceeds
