Report No. 62

1A.4. Adjustments of the legal machinery, necessitated by industrial changes.-

When, during the last century, the industrial employer came to displace the merchant and the craftsman as the pivot of the economic system, not the least important among the adjustments that were called for was the creation of legal machinery whereby the inevitable toll of human life and limb, caused by large scale mechanical production and distribution, could be equitably allocated between employer and employee.1 The process by which the adjustment has been, and is being, made is, in the main, a matter of legislation. The courts, guided by established doctrines of the common law, found little that was satisfactory. More significant, in developing that which they found, they were guided by economic ideals that were fast becoming little more than convenient fictions for rationalization2

"All these conditions (of master and servant)" said Bentham,3 "are a matter of contract. It belongs to the parties interested to arrange them according to their own convenience." And such was the social philosophy upon which courts erected the common-law rules governing an employer's liability for industrial accidents. Where the employer was personally at fault, recovery was easier.

1. Lester Schoene Workmen's Compensation - Inter-State Railways, (1933-34), 47 Harvard Law Review 389.

2. Lester Schoene Workmen's Compensation - Inter-State Railways, (1933-34), 47 Harvard Law Review 389.

3. Bentham Theory of Legislation, (Hildreth Tr., 2nd Edn., 1871) 199, quoted in Lester Schoene's Workmen's Compensation - Inter-State Railways, (1933-34), 47 Harvard Law Review 389.

1A.5. At common law, the doctrine of vicarious liability was subject to a peculiar exception whereby an employer was not vicariously liable to one servant for the negligence of another. In England, this exception was known as the doctrine of common employment. In some other jurisdictions, it was known as the fellow servant rule. It is generally traced to Priestley v. Fowler, (1837) 3 M&W 1, and was first clearly enunciated in the latter case of Hatchinson.1

The doctrine was based on a fictitious implied term in the contract of service to the effect that the servant agreed to run the risks naturally incident to his employment, and that one of these risks was that of harm due to the negligence of a fellow-servant.2

But it might be difficult for the workman to show that his injury was due to the negligence of anyone at all or even to discover what its cause might have been. So the Workmen's Compensation Act, 1897, adopted a new approach. The Act provided compensation for a workman injured in the course of his employment even though no negligence on the part of his employer or anyone else could be shown. The basis of the workmen's claim was not negligence or fault but accident.3

Where injury was occasioned through the negligence of a fellow servant,4 or resulted from one of the ordinary risks of the employment,5 it was said that the employee, having chosen to encounter those dangers in return for a stipulated compensation, could not be heard to complain.

1. Hatchinson v. York, New Caste etc. Rly. Co., (1850) 5 Exch 343.

2. Salmond Torts, (1965), p. 668.

3. Salmond Torts, (1965), p. 669.

4. See Labatt Master & Servant (2nd Edn., 1913), Vol. 4, p. 1393, cited in Lester Schoene, Workmen's Compensation etc., (1933-34), 47 Harvard Law Review 389.

5. Labatt Master & Servant, (2nd Edn., 1913), Vol.. 3, p. 1167, cited in Lester Schoene Workmen's Compensation etc., (1933-34), 47 Harvard Law Review 389.