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The attitude of public opinion in England toward the relations of master and servant, of which the latest law regulating the accidents of industry is an outcome, is shown by the current decisions of judges, by attempted legislation, and by the legislation adopted.

That this attitude has changed greatly with the times is illustrated by Parliament's expression of view in 1825, that “all combinations of workmen are injurious to trade," while in 1875 a diametrically opposite view was held, and legislation was enacted in accordance with that view, it being then admitted by the Conservative leader, Lord Beaconsfield, that " for the first time in the history of the country employer and employed sit under equal laws.” Again, in 1837 it is said that “principles of justice and good sense require “ that a workman should take on himself all the ordinary risks of his employment,” while in 1897 the legislature said, “ sound economic doctrine requires that the employer shall take all the ordinary and extraordinary risks involved in the carrying on of his industry."(9)

Examination of the Workmen's Compensation Act of 1897, as amended in 1900, of the parliamentary steps by which it became law, and of its working, leads at the outset to an inquiry into judicial decisions of sixty years before, and the measures subsequently introduced into Parliament dealing with accidents which were the result of the growth and concentration of industries.


In 1837 the general principles of the common law of negligence formed the only basis of recovery by a workman from his employer for an accident. Under these general principles a man was held to be responsible to others, including his servants, for injuries resulting from his own negligent acts, or from the negligent acts of his agents in the scope of their employment.


A decision rendered by Lord Abinger in 1837 under the common law of negligence, in the case of Priestly v. Fowler (3 Mees. & W. 1, Murph. & H. 305), is largely responsible for subsequent attempted legislation and for legislation enacted affecting a master's responsibility to his servant in case of negligence. In this decision was enunciated the doctrine “ that a master could not be held responsible for an accident to his servant if such accident were caused by the negligence of a fellow-servant," this being called “ the fellow-servant doctrine,” or “the doctrine of common employment." This doctrine, whether rightly or wrongly expounded in this decision, has operated as a defense to actions by servants against their masters for damages for injuries resulting from the negligence of their master's agents, if such agents were fellow-servants, and has thus left the workman no redress in many cases where a stranger would have had redress.

a See lectures by A. H. Ruegg, K. C.

The fellow-servant doctrine has been supported on the ground of its expediency (as preventing accumulation of alarming liability), on the ground of “its tending to prevent accidents" (by making each servant watch his fellow-servant), and on the ground of “contract" (it being held to be one of the “ implied terms ” of the contract of employment). On the other hand, it has been the subject of bitter attack ever since it was enunciated, the statement having been made that it was an exception to the general law of negligence, putting workmen in a worse position than strangers to their employer; that it tended to make employers less careful in the selection of their employees, and that it was founded on a legal fiction, not on a voluntary contract.

The doctrine was entirely repudiated in Scotland until imposed on that country by a House of Lords' decision in 1858 (Bartonshall Coal Company r. Reed, 3 McQ., H. L. Cas. 266). Though it remains operative to a certain extent, as modified by the Employers' Liability Act of 1880, the practical workings of the Workmen's Compensation Acts have largely counteracted its effect in the trades to which these acts apply. From allusions to it in debates in 1897 on the Workmen's Compensation Act it seems likely to be soon entirely extinguished by Parliament.

Opinions of lawyers have differed, as to the soundness of the decision, some holding that it rightly interpreted the existing common law, and others that it entirely without warrant engrafted a new doctrine into the law, but it is now according to high English legal authority almost universally admitted to be not only unjust, but also based on illogical reasoning.


The doctrine of assumed risk was another defense against an employer being held liable for accident, a doctrine generally based on an "implied term " in the contract of service. It was laid down in the

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case of Priestly v. Fowler (supra) that a servant “assumes all the ordinary risks which are incidental to his employment.” (An important corollary of this doctrine of assumed risk is the aforementioned doctrine of fellow service, namely, that one of the risks incident to the service which the workman agrees to assume is the risk from the negligence of a fellow-servant.) This implied term of his contract of service left the workman to bear the risks he knew or ought to have known, including the burden of dangers inherent in the business, such as unavoidable accidents, etc.

This doctrine has been justified on the ground that the servant is as well able to guard against the risk as his employer, and that it is calculated to secure fidelity and prudence on the servant's part; on the other hand, it has been doubted whether it has the effect claimed for it, and it has been suggested that the “ dread of personal injury" has always proved sufficient to bring into exercise the vigilance of the servant. Another attempt to justify the doctrine, on the ground that the amount of the workman's wages is adjusted with reference to the character of these risks, is answered by the statement that this theory is borne out only to a very limited extent by the actual facts of everyday life. (Labatt, sec. 259, etc.)

This principle was applied to the relations of master and servant in the case of Dynen 1. Leach (26 L. J. Exch. N. S. 221) in 1857, and also in Saxton ». Hawkesworth (26 L. T. N. S. 851) in 1872, in such a manner that it was made to operate as a defense against a claim by the servant for damages for injuries resulting from "negligence actually existing " on the part of his master, on the theory that the servant had voluntarily agreed to encounter the risks from nonfulfillment of his master's legal duty as to system and appliances.

At the time of these early cases cited, the voluntary agreement of the servant was implied from his continuing in the service of the employer, “ with knowledge of the defects," so that if the servant remained in the service, with knowledge, he was debarred thereby from maintaining any action for recovery from the master for injuries resulting from such defects.


This old defense of assumed risk, enumerated as a defense peculiar to the relation of master and servant, has been thought by some authorities to be only a form of the wider and more comprehensive doctrine of “volenti non fit injuriaof the common law, which means that “one who voluntarily incurs a risk can not recover.” The latter has, by other authorities, however, been stated to be different from the doctrine of assumed risk, as the doctrine of assumed risk arises out of the contract of service between master and servant, while

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the doctrine volenti non fit injuria is a general principle applicable whether the relation of master and servant exists or not. Thomas v. Quartermaine. (L. R. 18 Q. B. Div. 685, 56 L. J. Q. B. N. S. 310. See Labatt, sec. 370, note.)

This doctrine of volenti non fit injuria was thought not to be a hardship on the servant in the same sense as were the fellow-servant doctrine and the assumed-risk doctrine, as it was common to the whole law of negligence and would be a good defense to a stranger's action against the master for damages for injuries resulting from negligence.


The doctrine of contributory negligence was another defense against claims for damages for injuries resulting from negligence and, in very many instances, defeated a workman's claim against his employer. It is sometimes stated thus: “A plaintiff can not recover damages if but for his own negligence the accident would not have happened, though there was negligence on the part of the defendant." This was also recognized by Lord Abinger in Priestly v. Fowler (supra), and applied to a master and servant case, when he laid down that "the relation of master and servant can not imply an obligation on the part of the master to take more care of the servant than he may be reasonably expected to do of himself," thereby recognizing that the servant's right to recovery for an accident was conditioned on his showing that he did not contribute to his own injury. (See Labatt, section 313.) This defense, however, was available against the claim of a stranger as well as against the claim of a workman upon his employer. It was based upon the idea that if the plaintiff was negligent his negligence and not that of the defendant was the real or proximate cause of the injury. (Thomas 1. Quartermaine, supra.)

This doctrine was never accepted as sound in the Admiralty courts, where if both parties were negligent the loss was divided.


Another defense that operated to defeat a workman's claim was the rule of the common law that every personal action dies with the person entitled to bring it, or on the death of the person against whom it can be brought (actio personalis moritur cum persona). This rule of the common law, which relieved an employer from responsibility for all injuries causing death, was, however, abrogated by parliamentary enactment in 1846, under the statute commonly called "Lord Campbell's Act." Until that act the representatives of a workman killed by accident had no redress whatever against his employer.


A final stumbling block to recovery by an injured workman lay in the fact that at common law in an action for damages for injuries resulting from negligence the burden of proof lies upon the plaintiff. He has to show (1) negligence, namely, a duty and a breach of that duty; and (2) injury, as a consequence of that breach. In many cases, therefore, even where a workman had a legal right of recovery, he got nothing, as he was unable to prove his case.


An examination of attempted legislation and legislative enactments shows that bills were introduced in 1875 and 1876 to abolish entirely the doctrine of common employment and the defense of assumed risk. These bills were doubtless introduced because the principles so laid down were being pressed more and more severely against the workmen until the restrictions which were conceivably equitable in the case of the smaller industries of former years were made to apply in the case of more recent and indefinitely extended undertakings. Thus the doctrine of common employment was applied to the slight relationship existing between a miner and the engineer of the mine and between the general manager of a railway and a trackman in the service of the same company, resulting in the master in a large undertaking escaping responsibility by delegating authority. These bills were withdrawn, however, on the understanding that Lord Beaconsfield, who was the prime minister, should cause an inquiry to be made into the subject by a select committee of Parliament.

This committee was duly appointed, and in 1877 submitted a report:

This report recommended that where a master delegates his duty of selecting proper servants, material, and plant wholly to agents, instead of performing them himself, such persons to whom those duties are delegated should be held to be the “alter ego" of the master and not to be fellow-servants of the injured servant.

During the proceedings of the committee, before the adoption of the report, it had been proposed that the committee recommend that the defense of common employment should be abolished in the case of accident through the negligence of any employee exercising authority, however low in the scale he might be, so long as he was not employed in actual manual labor. This recommendation, however, was rejected in favor of the report above given.

About the same time a report from the Royal Commission on Accidents on Railways was brought in, to the effect that the master should

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