II. NECESSITY FOR THE EMPLOYERS' LIABILITY ACT, 1880.... 37 43 III.-EMPLOYERS' LIABILITY ACT, 1880......... IV. DETAILED CONSIDERATION OF THE LIABILITY IMPOSED 158 VI.-ACTION UNDER LORD CAMPBELL'S ACT (FATAL ACCI DENTS ACT) .... 180 VII. REMOVALS OF ACTION, APPLICATIONS FOR NEW TRIAL 196 ....... CHAPTER I. EMPLOYERS' LIABILITY. THE "law of employers' liability-a term sanctioned by custom to express the extent of the obligation which the law imposes upon employers of labour to compensate their workmen in respect of personal injury suffered in the course of the employment, as it exists at the present day, is in part based upon the principles of the common law of England, but has been greatly extended E.L B A by recent statutes: the Employers' Liability Act, 1880, and the Workmen's Compensation Act, 1906 (6 Edw. 7, c. 58), which came into force on the 1st of July, 1907. This last-named statute extends the principle, first recognised by the Act of 1897, of compulsory insurance of workmen against injury happening in the course of the work to (with some small exceptions) every kind of employment, quite irrespective of whether or not such employment is carried on as a trade or industry. Speaking generally, it may now be stated that whereever a contract of service exists between an employer and a workman, the obligation rests on the employer to make compensation, under the Act of 1906, for personal injury happening to the workman in the course of the work (1). The principles, from which the common law liability is deducible, may be enunciated as follows: (1) A person guilty of negligence is liable to make compensation for pecuniary damage resulting therefrom, if the damage is legally traceable to the negligence. Sic utere tuo ut alienum non lædas. (2) A master is responsible (subject to a like qualification) for the negligence of his servants whilst performing his work and acting within the general scope of their authority. Respondeat superior. Qui facit per alium facit per se. Canadian Notes. (1) In all the Canadian provinces, except Alberta, British Columbia, and Quebec, the employers' liability arises only on breach of duty. Workmen's compensation, in the English sense of the term (whereby the master is liable as insurer), has been adopted in Alberta, British Columbia, and Quebec, but only in regard to certain classes of employment. See 2 Edw. 7 (B. C.), c. 74; Alta. Stat., 1908, c. 12 (both somewhat similar to the English Workmen's Compensation Act, 1897), and 9 Edw. 7 (Que.), c. 66. Under a recent New Brunswick Statute employers may be responsible for certain defects irrespective of negligence. See Appendix, pp. 931, 916, 974, and 946. 1. The Employers' Liability at Common Law (2).— The common law principle expressed by the maxim "Sic utere tuo ut alienum non lædas" imposes upon everyone the duty to govern and regulate his own acts and conduct in such a manner that he shall not occasion injury to others. The contract of service between employer and employed does not absolve the former from this personal obligation which he owes to his workmen to a like extent as to other persons (a). In the words of BOWEN, L.J., in Thomas v. Quartermaine (b): "For his own personal negligence a master was always liable, and still is liable at common law, both to his own workmen, and to the general public who come upon his premises at his invitation, on business in which he is concerned" (3). It is an amplification, rather than an extension, of the principle that where a person, for his own purposes, brings into existence undertakings and industries which, if not controlled and governed with care, may be the means of causing injury to others, the legal duty arises to exercise such care. The breach of this common law duty so to use and govern one's own actions and undertakings as not to cause injury to others, is, in law, called "negligence " (4). (a) Ashworth v. Stanwix, 3 El. & El. 701. (b) 18 Q. B. D. 685-691. Canadian Notes. (2) The English law relating to property and civil rights, so far as applicable to local conditions, has been treated as in force or has been expressly adopted, at various dates, in all the provinces of Canada with the exception of Quebec. It was adopted in Ontario as it stood on the 15th October, 1792 (R. S. O. 1897, c. 111, s. 1); in Manitoba as on the 15th July, 1870 (R. S. Man., 1902, c. 40, s. 24); in British Columbia as on the 19th November, 1858 (R. S. B. C., 1897, c. 115); in Alberta, Saskatchewan, and the North-West Territories as on the 15th July, 1870 (R. S. C., 1886, c. 50, s. 11). As to laws introduced by original settlers in a planted colony, see Hazen v. St. James Church, 18 N. B. R. 479, and cases cited. (3) Macdonald v. Dick, 34 U. C. R. 623; Thompson v. Wright, 22 O. R. 127. (4) In Quebec it has been sought to found the employer's liability to compensate workmen for injuries upon an implied term in the contract. McCarthy v. Thomas Davidson Manufacturing Co., Q. R. 18 S. C. 272. But see Lee v. Logan, Q. R. 31 S. C. 469, affirmed 39 S. C. R. 311. by recent statutes: the Employers' Liability Act, 1880, and the Workmen's Compensation Act, 1906 (6 Edw. 7, c. 58), which came into force on the 1st of July, 1907. This last-named statute extends the principle, first recognised by the Act of 1897, of compulsory insurance of workmen against injury happening in the course of the work to (with some small exceptions) every kind. of employment, quite irrespective of whether or not such employment is carried on as a trade or industry. Speaking generally, it may now be stated that whereever a contract of service exists between an employer and a workman, the obligation rests on the employer to make compensation, under the Act of 1906, for personal injury happening to the workman in the course of the work (1). The principles, from which the common law liability is deducible, may be enunciated as follows: (1) A person guilty of negligence is liable to make compensation for pecuniary damage resulting therefrom, if the damage is legally traceable to the negligence. Sic utere tuo ut alienum non lædas. (2) A master is responsible (subject to a like qualification) for the negligence of his servants whilst performing his work and acting within the general scope of their authority. Respondeat superior. Qui facit per alium facit per se. Canadian Notes. (1) In all the Canadian provinces, except Alberta, British Columbia, and Quebec, the employers' liability arises only on breach of duty. Workmen's compensation, in the English sense of the term (whereby the master is liable as insurer), has been adopted in Alberta, British Columbia, and Quebec, but only in regard to certain classes of employment. See 2 Edw. 7 (B. C.), c. 74; Alta. Stat., 1908, c. 12 (both somewhat similar to the English Workmen's Compensation Act, 1897), and 9 Edw. 7 (Que.), c. 66. Under a recent New Brunswick Statute employers may be responsible for certain defects irrespective of negliSee Appendix, pp. 931, 916, 974, and 946. gence. |