THE NEW LAWS OF EMPLOYERS' LIABILITY FOR It is a very important sign of the times that two of the chief industrial countries of Europe have lately been recasting the law of liability for accidents. There is, I suppose, no more causal connection between the Workmen's Compensation Act 1897 and the "loi du 9 avril 1898" than if London and Paris were in different planets. But the problem to be solved was fundamentally the same in both countries, and if a closely similar solution has been found, there is at least a strong presumption that it is a solution which satisfies the popular sense of justice. Broadly speaking, both England and France have thrown overboard the traditional doctrine of the law, that a workman could never recover damages for injuries sustained through an accident, unless he could prove that the accident was caused by the fault of his employers. The Roman law said quae sine culpa accidunt a nullo præstantur (de reg. jur. 23) and every modern system followed this general rule. Under the new law the English workman must be compensated unless it is proved that the injury is attributable to his own "serious and wilful misconduct' s. 2, His French brother is only barred if he has "intentionally provoked the accident," s. 20; but the Court may diminish the damages if the accident was due to the "faute inexcusable" of the victim. In this province the present law is stringent enough apon employers. Indeed, I venture' to think that they are often found liable only by giving to the code an interpretation which it was never intended to bear. But the law, as now administered, has two great defects. It is expensive and it is uncertain. Every judge has his own opinion as to the evidence neces sary to establish fault. And both judges and juries give damages which vary so much that an employer who is threatened with an action can hardly calculate how much he ought to offer, if he is willing to compromise. A lawyer cannot advise his client with confidence. He cannot say "I am sure you are liable, but only "If the case is before such and such a judge you will be held liable" and as to the amount of damages that it is quite impossible to predict. Moreover, it is notorious that damages are frequently laid at nineteen hundred and ninety-nine dollars to prevent appeal to the Supreme Court, because that tribunal is known to hold stricter views as to the evidence necessary to prove fault on the part of the employer. The new laws in Europe fix a definite scale of compensation according to which the particular sum can be determined in a very simple and inexpensive way. This will be an immense relief to the employer. It is true that they make him liable in some cases where upon the old theory no compensation would be due. But the same result is generally reached here by doing great violence to the old theory without definitely rejecting it. And in the rare case in which it is held that there is no liability because there was no fault, the employer has to spend in the costs of establishing his non-liability a far larger sum than he would have to pay under the English "Workmen's Compensation Act." The main difference is that by the new law the injured workman always gets compensation. By the old law, at any rate here, the Occasionally, an lawyer always gets compensation. employer by compensating the lawyers succeeds in proving that the injured man ought not to be compensated. I am assured by a judge of long experience that in his opinion employers would be no worse off if a law were passed here, something like the new law in England. At the same time, to prevent misunderstanding, I desire to say that I have no intention of discussing with any fulness the expediency of new legislation in this Province. That depends upon social and economic considerations, as well as upon those which are purely legal. It is outside the scope of the present article. All that concerns us as lawyers is to study the alterations made in Europe by recent legislation. In the present House of Commons in England the manufacturers are even more strongly represented than is usually the case. Mr. Chamberlain, who was the moving spirit in carrying the Bill through, is a large manufacturer, and is thoroughly familiar with the conditions of industry. If the manufacturers had regarded the measure as seriously inimical to their interests, a conservative government would hardly have introduced it, and if they had done so, a House of Lords, not suspected of tendencies to socialism, would have given it a short shrift. Neither England nor France is the pioneer in this movement. Switzerland was the first country to declare that for accidents, in certain employments, the employer was to be liable without any proof of fault. (loi fédérale du 25 juin 1881.) But the very elaborate German Act of 1884, (Unfallversicherungsgesetz, 1st Juli 1884,) has been the model upon which other countries have based their legislation. And neither England nor France, though their Acts are fourteen years later than the German, have gone quite as far as Germany. Under the German Act, even gross fault does not bar the workman. He can recover full compensation unless he intentionally caused the accident. He can get two-thirds instead of one half his annual earnings as in England, if he is totally incapacitated. Medical expenses, funeral expenses, and legal expenses in the action for compensation are all paid for him. And, most important of all, all employers to whom the law applies, are compelled to insure against their liability. And the act supplies an elaborated machinery for insurance societies in each district to be formed and managed under the supervision of a central authority-the Reichsversicherungsamt. Since then many countries in Europe have followed suit, but none, I think, going quite so far as Germany. Austria passed a law in 1887, Norway in 1894, Finland in 1897, Italy and Denmark, as well as England and France in 1898. They differ, naturally, in detail but all abandon the old theory that actual fault of the employer is the basis of liability. The present unsatisfactory state of the law here is due to the fact that our courts are trying, without legislation, to reach the same conclusion. They are putting new wine into old bottles. It makes no difference to the employer whether we say as the French law now says: "You are liable without fault, merely as an employer" or say, as our courts do : "There must be fault, but seeing that you are an employer we presume you are in fault, or there would have been no accident." Perhaps the courts do not put it quite so bluntly, but is not this the practical effect? The new theory that accidents will happen and that the "wounded soldier of industry" as he has been called, is not to be left to die by the road side, because, in his attention to his master's interests, he forgot for a moment to think of his own safety, has made astonishing progress in Europe during the last twenty years. (The new Acts in the different countries are printed with valuable introductions in the work of Dr. Zacher, Die Arbeiterversicherung im Auslande, Berlin, 1898. This book contains also full information as to the state of the law with regard to old age pensions, and insurance societies for workmen incapacitated by sickness.) If the countries of Europe, divided as they are from each other by immemorial prejudice, conspire to legislate in the same sense, it is surely a fact which upon this continent deserves to be noticed. It would be safe to say that no legislation of greater importance has been passed during this generation. It affects the security and happiness of millions of working-men and working-women, and of other millions of old parents, of widows and of young children whose bread-winner has been removed from them by a fatal accident. I propose to consider briefly, the causes which have brought about so important a change in the law, and, as to England and France particularly, to examine the law prior to the new Acts. I will conclude by explaining in outline the character of the new legislation, As to the causes, they were much the same in England and France. Disregarding minor differences, the evolution of society has been upon the same general lines in all the great manufacturing and commercial countries. All alike have become vast noisy workshops, full of whizzing wheels, of smoke, of strange chemical smells, and glaring electric lights. We live in an industrial age. The old law both in England and France |