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CHAPTER XIV.

STATUTORY LIABILITY OF EMPLOYERS.

I. Employers' Liability Act, 1880 (43 & 44 Vict. c. 42).
II. Lord Campbell's Act (9 & 10 Vict. c. 93).

III. Workmen's Compensation Act, 1906 (6 Edw. 7, c. 58).

I. Employers' Liability Act, 1880.

THE Employers' Liability Act, 1880, which has been continued annually since the end of 1887 (see sect. 10), is untouched (a) by the Workmen's Compensation Act, 1906.

Before dealing in detail with the interpretation of the Act, some propositions which have been established regarding it may be stated:

(1) That a contract by which any or all of the benefits of the Act are waived for a consideration is binding on the parties thereto and their legal representatives;

(2) That an infant will be bound by such a contract if it be for his benefit;

(3) That an employer has an insurable interest under the Act, and may enter into a valid contract of insurance against the liability thereunder;

(4) That the Act places the workman in the same position as a licensee lawfully on the premises of the employer;

(5) That contributory negligence and acceptance by the workman of the risks from which he suffered are defences available to the employer;

(6) That the Act applies only to persons employed in manual work;

(7) That no action will lie against the executors of an employer -actio personalis moritur cum personâ (aa).

(a) Save in the matter of appeal in Scotland: see sect. 6 of the Employers' Liability Act, 1880, and the note there, at p. 639, infra.

(aa) Gillett v. Fairbank (1887), 3 T. L. R. 618. Cf. Workmen's Compensation Act, 1906, s. 13, the definition of "employer."

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Contracting out of the Act.

Many workmen have contracted themselves out of the Act. Such contracts are valid (b). It is not, as already explained (c), contrary to public policy for a workman to accept the risks of a lawful employment. In Griffiths v. Dudley (b), it was decided that employers may contract themselves out of any section or part of the Act; e.g. they may agree with their workmen that information of defects mentioned in sect. 2, sub-sect. (3), be given to a certain specified "superior" and to him only. To support an agreement to give up claims under the Act there must be consideration of some sort; and if the agreement be in writing, the consideration must be expressed (d).

Contracts between masters and servants, by which the latter agree to waive the benefits of the Act, need not be in writing; for obvious reasons, however, they had better be so. Such contracts may be made by posting up in mills or works printed regulations or notices, provided the workmen see them before they are engaged (e).

In Clements v. London & N. W. Ry. Co. (f), a contract by which an infant waived his rights under the Act in consideration of certain advantages under an accident fund was held to be for his benefit, and binding upon him.

One of the chief disputes under the Act has been as to implied acceptance of risks. Some early cases appeared to decide that mere knowledge of the risks implied acceptance; the later cases, to be mentioned presently, emphasise the fact that mere knowledge is only one element. Such acceptance must be distinctly proved, and the remaining in employment with full knowledge and appreciation of the risks will not necessarily prove it (g).

Accord and Satisfaction.

A workman who has been injured may lose the benefit of the Act by accepting a sum as compensation for the injuries which he

(b) Griffiths v. Dudley (1882), 9 Q. B. D. 357.

(c) Vide p. 299, supra.

(d) Fide Pt. i. Chap. VIII., supra.
(e) Carus v. Eastwood (1875), 32 L. T.

(N. S.) 855.

(f) [1894] 2 Q. B. 482.

(g) Smith v. Baker, [1891] A. C. 325, 355; Williams v. Birmingham Battery and Metal Co., [1899] 2 Q. B. 338.

has sustained (h). He will be deprived of all right to any statutory penalty if he has previously brought an action under the Act for the same cause of action; and any penalties paid to him are to be deducted from the damages recovered in an action under the Act (i). If anyone entitled to compensation for injuries be induced to give a release or discharge in full in consideration of compensation received, under the influence of force, fear, fraud (k), or misapprehension as to its intended effect (1), the release will not debar him from subsequently suing in respect of the same injuries.

The principle of Read v. Great Eastern Ry. Co. (m) applies to claims under this Act. In that case it was held to be a good plea to an action under Lord Campbell's Act by the plaintiff, as widow of a passenger whose death had been caused by the defendants' negligence, that he had in his lifetime been paid and had accepted a sum of money in full satisfaction of all claims.

Position of Workmen under the Statute.

Much litigation has been required in order to determine the rights of workmen under the Act.

Sect. 1 enacts that, in the cases specified in its five subsections

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Where personal injury is caused to a workman. the workman, or, in case the injury results in death, the legal personal representatives of the workman, and any persons entitled in case of death shall have the same right of compensation and remedies against the employer as if the workman had not been a workman of, nor in the service of the employer, nor engaged in his work.

The defence of "common employment," as laid down in Priestley v. Fowler (n), has not been in all cases abolished; it is taken away only in the five particular instances specified in the

(h) Addison on Torts (7th ed.), p. 54. See Wright v. London General Omnibus Co. (1877), 2 Q. B. D. 271. In Ellen v. Great Northern Ry. Co. (1901), 49 N. R. 395, blindness having subsequently supervened, the effect of a receipt in full satisfaction was held to be a question for the jury.

(i) Sect. 5. Cf. the Workmen's Compensation Act, 1906, s. 1, sub-s. (5).

(k) See Stewart v. Great Western Ry.

Co. (1865), 2 De G. J. & S. 319; Hirschfield v London, Brighton & South Coast Ry. Co. (1876), 2 Q. B. D. 1.

(1) Rideal v. Great Western Ry. Co. (1858), 1 F. & F. 706; Lee v. Lancashire & Yorkshire Ry. Co (1877), 6 Ch. 527; and see Prosser v. Lancashire, &c. Accident Insurance Co. (1890), 6 T. L. R. 285. (m) (1868), L. R. 3 Q. B. 555. (n) (1837), 3 M. & W. 1,

first section of the Act (o). Lovell v. Howell (p) would have been rightly decided had it been an action under the Act.

In spite of doubts expressed by some judges (q), it is clear that the defence volenti non fit injuria-that the accident was one of the risks which the servant accepted-is still available to the employer. But, as the majority of the Court of Appeal point out in Thomas v. Quartermaine (r), this maxim is used loosely to cover a number of cases not always arising out of contract; they turn (in the words of Bowen, L. J., in that case) on a "duty created by some wider principle of law which happens to take effect and to receive apt illustration in the particular instance of some particular contract." The wider principle of law referred to in this passage is that expressed by the maxim volenti non fit injuria, applicable equally to servants and licensees; and it remains a good defence under the Act (s). The effect of the last words of the first section of the Act is that the workman ceases to be an employee and becomes a licensee -"a member of the public entering on the defendant's property by his invitation " (t). "The Act, with certain exceptions, has placed the workman in a position as

(0) Per Cave, J., in Griffiths v. Dudley (1882), 9 Q. B. D. 357, 366.

(p) (1876), 1 C. P. D. 161. See Howard v. Bennett (1888), 58 L. J. Q. B. 129.

(9) Esher, M. R., in Thomas v. Quartermaine (1887), 18 Q. B. D. 685, 688; A. L. Smith, J., in Weblin v. Ballard (1886), 17 Q. B. D. 122, 125, 127.

(r) See note (g), supra.

(8) In Smith v. Baker, [1891] A. C. 325, Lord Herschell discusses Thomas v. Quartermaine as follows (p. 366): "As far as appears, this was amongst the ordinary duties of his employment, and if it was assumed that there was a breach of duty on the part of the employer in not having the vats fenced, as it obviously was, since if there had been no breach of duty it would not have been necessary to inquire whether the maxim volenti non fit injuria afforded a defence, it seems to me that it must have been a question of fact, and not of law, whether the plaintiff undertook the employment with an appreciation of the risk which arose on the occasion in question from the particular nature of the work which he had to perform. If the effect of the judgment be that the mere fact that the plaintiff, after he knew the condition of the premises, continued to work and did not quit his employment afforded his employer an answer

to the action, even though a breach of duty on his part was made out, I am unable, for the reasons I have given, to concur in the decision." The first of these criticisms is the same as that made by Esher, M. R., in Yarmouth v. France (19 Q. B. D. 647, 654), when explaining his dissent from the decision in Thomas v. Quartermaine. The answer is clearthere was no assumption of a breach of duty on the part of the employer in Thomas v. Quartermaine; it was exactly what was not assumed. The plaintiff, who had to make out a primâ facie case of negligence, never did so; he was proved to be volens. There was no evidence of negligence to go to the jury. To the second criticism the answer is that Thomas v. Quartermaine did not decide anything of the kind. Smith v. Baker, Thomas v. Quartermaine, and Yarmouth v. France make it clear that there are a number of elements in the state of mind known to the law as volens, of which mere continuance in service is only one. See the remarks of A. L. Smith, J., upon Smith v. Baker in Greenhalgh v. Carnarvon Coal Co. (1891), 8 T. L. R. 31. And see Pyner v. Bullard, King & Co. (1897), 14 T. L. R. 57; Williams v. Birmingham Battery and Metal Co., [1899]2 Q. B. 328.

(t) Per Fry, L. J., in Thomas v. Quartermaine, l. c., at p. 700.

advantageous as, but no better than, the rest of the world, who use the master's premises at his invitation on business" (u).

In what is the locus classicus on the subject (x), Bowen, L. J., remarked:

It is no doubt true that mere knowledge on the part of the injured person which will prevent him from alleging negligence against the occupier must be a knowledge under such circumstances as necessarily lead to the conclusion that the whole risk was voluntarily incurred. The maxim, be it observed, is not scienti non fit injuria, but volenti. · There may be a perception of the existence of the danger without comprehension of the risk, as when a workman is of imperfect intelligence, or, though he knows the danger, remains imperfectly informed as to its nature and extent. There may, again, be concurrent facts which justify the inquiry whether the risk, though known, was really encountered voluntarily. The injured person may have had a statutory right to protection, as when an Act of Parliament requires machinery to be fenced.

No rule can be laid down as to the circumstances in which consent will be inferred. If the occupation is necessarily dangerous, an agreement to accept the risk will be inferred; but that is a question of fact, not of law (y).

The master may also set up the following defences:

(A) Contributory Negligence (z).

By contributory negligence is meant that the plaintiff "himself has contributed to the accident in such a sense as to render the defendant's breach of duty no longer its proximate cause " (a).

The burden of proving such contributory negligence is on the defendant (b).

(B) That the servant who was negligent was not acting within the scope of his duties or his authority (e).

(C) That the injury was due to the wilful act of the servant who caused it (d).

(D) Act of God.

(u) Per Bowen, L. J., in Thomas v. Quartermaine, l. c., at p. 693.

(x) Thomas v. Quartermaine, l. c., p. 696. (y) Yarmouth v. France (1887), 19 Q. B. D. 647, per Lindley, L. J., at pp. 659-661.

(z) Stuart v. Evans (1883), 49 L. T. (N. S.) 138: Weblin v. Ballard (1886), 17 Q. B. D. 122. See Chap. XXVI,

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