174 LABOUR
between employers and employed in the pottery trade of North Staffordshire were previously at an end by lapse of time. The question in such cases is on what terms the parties will agree for the future relationship of employer and employed, there being no such relationship when the strike began, and of course none while it is pending. This goes to the root of the whole matter, although it may seem a technical mode of looking at it. But if no such obstacle existed, there are difficulties of another kind. In such cases a board of conciliation is inevitably equally divided, and reference to an umpire becomes necessary. To give confidence, he must not be an employer or employed in the trade. In general, therefore, he must know nothing previously of the subject he has undertaken to settle. He must deal with it on such imperfect knowledge as he can acquire in the arbitration, and apply such general principles as may occur to him. Nevertheless much good has been done by a good-tempered calm inquiry in which both sides learn perhaps for the first time the grounds on which the demand is made or resisted.
A recent important Act of Parliament, the Employers Liability Act 1880, must be noticed. To render its pro visions intelligible, it is necessary to state the general law on the subject of civil liability for negligence. A person who causes injury to the person or property of another is liable in damages to that person, and if the injury has resulted in death the right of action is ex tended to the representatives, on behalf of the widow or children, independently of any criminal liability incurred by the negligence. If the person who committed the negligent act is in the service of another, and the negligent act was committed in the course of the discharge of his duty, the civil liability extends to the master. This liability of the master is important to the injured person, because the servant is in most cases a much poorer person than the master. If they were equally able to pay damages, nothing would be gained by resorting to the master. But the lia bility of the latter was not, before 1880, extended to make the master responsible in damages if the person injured and the negligent servant wera both in his service and both were performing the same kind of duty, a " common employment" as it has been termed, and if the master, so far from being guilty of any actual negligence himself, had employed a generally competent person, and had provided him with the means of properly performing his duty. No vindication of the then law seems necessary, for, whether the liability of an employer to strangers is just or not, there is an obvious distinction between such a liability and responsibility where all parties are " rowing in the same boat," to adopt an expression used in one case, whether the injured person be a servant or guest of the master. Both are volunteers, and both know that the master will not personally intervene. There does not appear to be any injustice in such a case in confining the liability to that of the servant personally guilty of the negligence, although a poor man. However, some apparently hard cases, especially arising out of accidents on railways, where, while a passenger could sue the company for negligence, an engine-driver or a guard s remedy was limited to the person actually guilty of the negligence, led to the attention of parliament being called to the subject. In 1877 a com mittee of the House of Commons, pointing out that the development of modern industry has created large numbers of employing bodies, such as corporations and public com panies, to whom it is not possible to bring home personal default, and that there are other cases in which masters leave the whole conduct of their business to agents and managers, themselves taking no personal part whatever either in the supply of materials or in the choice of sub ordinate servants, reported thus: –
"Your committee are of opinion that in cases such as these,
that is, where the actual employers cannot personally discharge
the duties of masters, or where they deliberately abdicate their
functions and delegate them to agents, the acts or defaults of
the agents who thus discharge the duties and fulfil the functions of
masters should be considered as the personal acts or defaults of the
principals and employers, and should impose the same liability on
such principals and employers as they would have been subject to
had they been acting personally in the conduct of their business,
notwithstanding that such agents are technically in the employ
ment of the principals. The fact of such a delegation of authority
would have to be established in each case, but this would not be a
matter of difficulty. Your committee are further of opinion that
the doctrine of common employment has been carried too far when
workmen employed by a contractor and workmen employed by a
person or company who has employed such contractor are con
sidered as being in the same common employment."
Three years afterwards the Act in question was passed.
By sect. 1, where 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 ; or (2) by reason of the negligence of any person
in the service of the employer, who has any superintendence en
trusted to him, whilst in the exercise of such superintendence ; or
(3) by reason of the negligence of any person in the service of the
employer to whose orders or directions the workmen at the time of
the injury was bound to conform and did conform, where such in
jury resulted from his .having so conformed; 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 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 ; 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 work
man had not been a workman of nor in the service of the employer,
nor engaged in his work."
Section 2 provides that a workman shall not be entitled
under the Act to any right of compensation or remedy
against the employer in any of the following cases: –
(1) Under subsection 1 of section 1, unless the defect therein
mentioned 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 con
dition ; (2) under subsection 4 of section 1, unless the injury
resulted from some impropriety or defects in the rules, bye-laws, or
instructions therein mentioned; provided that, when 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 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
purposes of this Act to be an improper or defective rule or bye-law;
(3) in any case where the workman knew of the defect or 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, un
less he was aware that the employer or such superior knew of the
said defect or negligence."
Compensation under this Act (which extends to a rail
way servant and any person to whom the Employers and
Workmen Act 1875, already noticed, applies) is enforced
by action in the county court (in Scotland the sheriffs
court, in Ireland the civil bill court) after notice within six
weeks of the nature and particulars of the claim (unless
there was reasonable excuse for the want of notice in the
case of death). The compensation is limited to three years
earnings, and the action must be commenced within six
months from the occurrence of the accident, or in case of
death within twelve months from the time of death.
Neither in the United Kingdom nor abroad does the right to damages for breach of contracts override the general law as to offences, so that, if any of the parties do anything amounting to a criminal offence, a prosecution may follow although a breach of contract is involved for which breach damages may be recovered. There are moreover a variety of Acts of Parliament from the reign of Anne still in force
