11 Rejected Theories

IT has been suggested that, whereas in the early nineteenth century case law operated against the interests of the worker, modern case law, especially in the House of Lords, has tended to favour him. Consequently many theories, which were invoked in defence of the employer in the past, were gradually whittled away by case law, until they were abandoned altogether by Act of Parliament. The most common of these theories were:

Common employment. This dates from a test case in 1837 (Priestley v. Fowler) in which an employer would not be required to accept responsibility for the injury to a workman, if the accident had occurred as a result of the negligence of another employee. The argument used to be valid that, when a workman entered the service of his employer, he implicitly accepted the risk of injury from the acts of his fellow workmen, and provided the employer could show he had used reasonable care in selecting his workmen, he was not required to bear the responsibility for any negligence they might have shown. The Employers' Liability Act of 1880 was the first breach in this doctrine, because under it a worker could successfully claim damages from defects in ‘ways, works machinery, or plant, or from the negligence of some person placed in a position of superintendence, or whose orders the worker had to obey’. The Act was not as effective in providing damages to the injured worker as had been expected, because it was always open to the employer to plead ‘contributory negligence’ by the injured man, or that he had acted outside his authority, or that he had wilfully committed an act which had led to the accident. The relative ineffectiveness of the Act led directly to the first workmen's compensation legislation. Meanwhile, the theory of ‘common employment’ continued, though its effectiveness as a defence by employers gradually grew less, and cases fought on it increasingly failed to succeed, e.g. in 1939 in Radcliffe v. Kibble Motor Services Ltd., ¹ where two drivers were involved in the same accident, the House of Lords rejected the defence of common employment, on the grounds that the risk of injury by a vehicle driven by a fellow servant was not one of the peculiar ‘risks and perils incidental to the performance of a worker's service’. Finally, towards the end of the Second World War, in 1944, the Home Secretary appointed a committee on ‘alternative remedies’ under the chairmanship of Sir Walter Monckton. ² The committee argued that it is false to say a worker accepts as part of his employment the risk of being injured by his fellow workman's negligence. The results of applying the doctrine are often illogical, they declared, since it depended on whether a fellow worker was employed by the same employer or not. As a result of the committee's recommendations the Law Reform (Personal Injuries) Act, 1948, was passed, abolishing the doctrine of common employment altogether, and forbidding private agreements including it. Thus ended a theory that had lasted more than 100 years, and its going hardly caused a ripple, so much had its functioning been limited in latter years by case law.

The principle of ‘volenti non fit injuria’. This implies that when a workman accepts wages, he makes a ‘contract of labour’, and accepts responsibility for the normal risks of his employment. In the nineteenth century this was an important theory, and was used effectively in the courts to limit an employer's liability. It had two branches. On the one hand, it was said that if a worker consented to an act which in the event resulted in injury to him, he could not afterwards complain of it as a legal wrong. Or, if a worker freely and voluntarily agreed to incur a risk, and injury materialized, he could not claim damages. The development of statutory duties on the employer severely limited the scope of this argument, since it could never be advanced as a defence in a case involving these duties. And the progressive acceptance by the courts that an employer had a special relationship to his workers, which put them in a more favourable position when his duty to exercise care was concerned, has made the theoryunacceptable even when cases are not fought on breaches of statutory duty. Hence, while the defence may be raised as part of ‘contributory negligence’ it has little effect on its own account in modern trials.

Delegation used to be a defence, because, if an employer could show that he had employed a skilled and competent man to perform the duty, then it was this man's fault if it was not performed, and a workman was injured. This was early rebutted, particularly in the Employers' Liability Act, 1880, and the defence is now obsolete. However, the question is raised as to what are the rights the skilled and competent man himself may have if he should be injured because of his own negligence. If it is a breach of statutory duty, there can be no delegation of responsibility for the duty, and any breach can be tried in the criminal courts. On the other hand, if the plaintiff is the sole cause of his injuries, the maxim ‘no man can profit by his own wrong’ should operate. ³ So the skilled and competent man injured solely by his own negligence in an area where the employer has no statutory duty to exercise care would not be able to sue the employer for damages. In this limited sphere, delegation would appear still to be a valid defence.

Election. Until 1948, the doctrine of ‘election’ operated, because according to the Workmen's Compensation Act 1925 (sect. 29) if a worker had claims under both the Workmen's Compensation Acts and the common law, he had to choose which claim to pursue; he could not gain from both. The position was severely criticized as putting the worker in an intolerable situation as he had to estimate his chances. If there was a strong element of contributory negligence, he would have to rely on workmen's compensation, but if he thought he could get a larger sum if he sued his employer, he might choose that method, with all its disadvantages of exacerbation of feeling between himself and his employer, the long wait for the case to be completed, and the gamble that the case might not succeed. Beveridge regretted the ‘election’ principle, because ⁴ ‘the needs of the injured person should be met at once’, and election prevented this, since any ‘alternative remedy’ was bound to take some time to test. The insurance companies, meanwhile, were aware of the odium in which they stood because of this. And, early in the Second World War, they made an agreement with the Home Office that, pending the revision of workmen's compensation legislation, they would not apply the doctrine of election harshly. If a worker applied for workers' compensation and, within three months of the accident, filed a case for damages under common law, the company would not then refuse compensation, because the alternative remedy was being tried, but would continue to pay until the case was heard. ⁵ This might be considered generosity on the part of the insurance companies, were it not for their proviso that compensation in such cases depended on the worker fighting his own case. If he consulted a legal adviser, or an official of a trade union or an approved society, the offer lapsed. Since few cases are so difficult as these, it is hard to understand how a worker could expect to make a reasonable choice unless he took advice. Investigating the whole question of ‘election’ was one of the chief functions of the Monckton Committee on ‘alternative remedies’ (1944–6). They were charged to inquire how far the recovery of damages, in respect of personal injury, should be affected by the new proposals for social insurance. Thus, when the two Law Reform Acts were passed (1945 and 1948) giving legislative sanction to some of the Monckton Committee recommendations, among the most important provisions were the abolition of the theory of common employment, and the rejection of the doctrine of election. A person injured after July 1948 could receive both the appropriate national insurance benefit and damages, though henceforth the amount awarded in damages would take into account any cash benefit already received — up to a maximum of 50 per cent for five years — and any contributory negligence. Medical benefit obtained and paid for outside the national health scheme, on the other hand, would be allowable in damages. A time limit was also instituted and no application would be valid beyond three years after the date on which the cause of action accrued. ^*

Contracting out was a well-tried safeguard by employers, who wished to minimize the risk of havingcivil cases brought against them by injured workers. The 1880 Employers' Liability Act, it was said, had been reduced to negligible proportions by workers agreeing, as part of their contract, to refrain from seeking damages should they be injured. Only by making it unlawful to contract out of the Workers' Compensation Acts did they become the reasonably satisfactory schemes they proved to be. The practice, however, has continued in a limited form down to more recent times. In 1948, for instance, one more loophole was abolished by the Law Reform Act. This made it illegal for an employer to make a separate contract with an employee, absolving himself from the consequences of negligence by a fellow worker (the doctrine of common employment). How far contracting-out of civil damages for injury still plays any part in the relations between master and servant is hard to tell. The absence of strong representations from the trade unions would suggest the danger is slight.