Stone v. Hyde, 9 Q. B. D. 76; 51 L. J. Q. B. 452; 46 L. T. PAGE 48, 50 Stanton v. Scrutton, 5 R. 244; 62 L. J. Q. B. 405; 9 T. 88888 91 98 83 65 99 Stott v. Dickinsen, 34 L. T. 291 Sweeney v. Duncan, 19 Sc. Sess. Cas. 4th Ser. 870 Sykes v. N. E. R., 44 L. J. C. P. 191; 32 L. T. 199; 23 52 Waller v. S. E. R., 2 H. & C. 102; 32 L. J. Ex. 205; 9 Jur. (N. S.) 501; 8 L. T. 325; 11 W. R. 731 Walsh v. Whiteley, 21 Q. B. D. 371; 57 L. J. Q. B. 586; 84 85 112 6 50 110, 111, 112 Whatley v. Holloway, 62 L. T. 639; 54 J. P. 645; 6 T. L. R. Whatman v. Pearson, 3 C. P. 422; 37 L. J. Q. B. 156; 18 Wild v. Waygood, (1892) 1 Q. B. 783; 61 L. J. Q. B. 391 ; PAGE 54 46, 47 Wilson v. Glasgow Tramways Co., 5 Sc. Sess, Cas. 4th Ser. 981 Wood v. Dorrall & Co., 2 T. L. R. 550 Woodley v. Metropolitan Rail. Co., 2 Ex. D. 384; 46 L. J. 68. 47 82 87 Wright v. Howard Baker & Co., 21 Sc. Sess. Cas. 4th Ser. Wright v. L. & N. W, Rail. Co., 1 Q. B. D. 252; 45 L. J. Wright v. Wallis, 3 T. L. R. 779 Yarmouth v. France, 19 Q. B. D. 647; 57 L. J. Q. B. 7; 36 W. R. 281 52 51, 68, 77, 79 EMPLOYERS' LIABILITY. SUMMARY OF THE LAW. Ir is hardly necessary to remark that a great change in the Law of Employers' Liability has been effected by the Workmen's Compensation Act, 1897. of the employer at com mon law : At common law, the position of a workman who Liability had suffered personal injuries was inferior to that of a stranger. Not only was every defence that could be used against a stranger open to the employer, but, in addition, where the injury to the workman was caused by the negligence of a fellow-servant, the employer could raise the defence of "common employment," since the workman, in engaging in the employment, was considered to have accepted this kind of risk. the Em The Employers' Liability Act, 1880, was directed under solely against the defence of "common employment." ployers' The effect of this Act, in actions which come within its sphere, is to place the workman in the same position as that of a stranger. Liability under the Work men's Far different is the effect of the Workmen's Compensation Act, 1897. This Act, in those employments to which it applies, places the workman in a Compensation Act, far superior position to that of a stranger. It practically makes the employer liable for all accidents. R. B 1897 (60' & 61 Vict. c. 37). It is intended that, in such employments, payment of compensation to workmen for accidents shall be part of the cost of carrying on the trade. This, in England, is a new principle, and it remains to be seen how far it will ultimately affect the wages of the workmen. The fact that, in these employments, no less than three of the principal defences which, in the past, employers have used against their workmen, have been completely swept away, shows how great an alteration has been made in the law. These defences were : (a) That the injury arose from a risk to which the workman exposed himself with know ledge and of his own free will. "Volenti non fit injuria." (b) Inevitable accident, including all cases where the workman failed to prove negligence. (c) Contributory negligence of the workman. It is still a defence if it is proved that the injury is attributable to the serious and wilful misconduct of the workman, but this can hardly be said to preserve any of the doctrine of contributory negligence. From a legal point of view, perhaps, the alteration under (b) is the most remarkable. It introduces a new principle of liability into the law of torts, making the employer liable where there is no negliConsidera- gence on his part or on that of his servants. tion of the principal We must now turn our attention to some of the provisions principal provisions of the Workmen's Compensation of the Act, 1897. Work men's Sect. 1 provides that if, in any employment to Compensa- which the Act applies, personal injury, disabling a 1897 (60 & workman for at least two weeks, is caused to him tion Act, 61 Vict. c. 37). The lia by accident arising out of, and in the course of, Sect. 1. the employment, the employer is to pay compen- bility. sation. Sect. 7 gives the employments, which are as follows:-on or in or about a railway, factory, mine, quarry, or engineering work, or on, in or about a building which exceeds thirty feet in height, and is either being constructed or repaired by means of a scaffolding, or being demolished, or on which machinery driven by steam, water, or other mechanical power is being used for the purpose of the construction, repair, or demolition thereof. Sect. 7. ployments. The em First Schedule, pensation. Sect. 1. Option to workman The First Schedule to the Act gives the compensation, which is not to exceed 3007. in case of death, or 17. per week in case of disablement. Sect. 1 (2) (b) provides that where the injury was caused by the personal negligence or wilful act of the employer, or of some person for whose act or where injury default the employer is responsible, the workman caused by has an option either to proceed under the new Act or under the law as it existed before the Act. In other cases, the workman can only take proceedings under the new Act. Sect. 1 (4) provides that if a workman brings an action independently of the Act, and it is determined that the injury is one for which the employer is not liable apart from the Act, but that he would have been liable to pay compensation under the Act, the workman, if he choose, may have the compensation assessed under the provisions of the Act. personal negligence or wilful act. Otherwise no option. Option to workman who has taken the wrong proceed ings. Sect. 1 (2) (c) provides that compensation shall not Serious be allowed where the injury is attributable to the serious and wilful misconduct of the workman. and wilful misconduct of workman. |