LORD JUSTICE BRAMWELL
SIR HENRY JACKSON, BART., Q.C., M.P.
P. S. KING, PARLIAMENTARY BOOKSELLER,
CANADA BUILDINGS, KING STREET, WESTMINSTER, S.W.
Eden Bridge, Kent,
June 9th, 1880.
My dear Jackson,
I have, as you wished, put down in writing my reasons for saying that the common notions of lawyers as well as laymen, as to the reason of the non-liability of the master in cases of common employment, are wrong. While I was about it, I thought I would deal with the subject generally. Having done this, I determined to print it and address it with this to you.
Yours very truly,
Sir Henry Jackson, Bart., Q.C, M.P.
LIABILITY OF MASTERS TO WORKMEN
FOR INJURIES FROM FELLOW SERVANTS.
When a new law is proposed it may seem to some of little consequence what is the old law or the reason for it. The only question, it may be said, is, will the new law be good? I should not think so. Those who propose to make a law, in truth propose to alter what exists, and should give a good reason for the change in all cases. But most certainly should they do so when the new law is proposed on account of some alleged hardship or anomaly in the old law. This is the case in the proposed alteration of the law as to the liability of employers for negligence of a servant causing damage to a fellow servant. It is said that the existing law is anomalous, and that it is an exception to a general rule that makes employers liable for the negligence of their servants, a grievance to workmen, and a grievance without justification. It is somehow supposed that as a matter of natural right, something that exists in the nature of things, employers are liable for injuries occasioned by their servants' negligence, and that to except fellow servants from this rule is unjust and unreasonable.
Now this is an entire mistake; and it is really wonderful how not only those who are not lawyers, but lawyers who ought to know better, are under the impression I have mentioned. It becomes necessary to begin at the beginning, and state some entirely elementary rules of law.
The primary rule is, that a man is liable for his own acts, and not for those of others. A man, as a rule, is no more liable for the wrongs done by another than he is for his debts. The cases in which he is liable are exceptions to the rule, and not the rule. I will proceed to state the exceptions.
1st. When a man undertakes to do or perform any work, he undertakes that it shall be done or performed with reasonable care and skill. If he does or performs it himself and is negligent or unskilful and damage results, he is liable. So he is if he does or performs it not himself, but by agent or deputy. For instance, if a smith's servant in shoeing a horse hurts it by negligence, the master is liable; so would he be if he got a neighbouring smith to shoe the horse and he injured the horse by his negligence. So a railway company that undertakes to carry a passenger from A to B, is liable for damage occasioned to the passenger by the negligence of its servants; so also is it liable if the damage was occasioned beyond its own line by the negligence of the servants of another company who were the agents of the first company for the completion of the journey. For example, if the contract of carriage was from London to Inverness, and part of the journey was in the carriages and with the servants of a Scotch railway company, the first company would be liable on their contract that due care should be used throughout. In these cases no question of master and servant arises: the question is one of contract. The contractor has not performed his contract. He has contracted that a certain thing shall be done in a certain way: he has not done it according to his contract, either by himself or his deputy. The reason of this liability is obvious. The parties have contracted for care. In this case the servant or agent is not liable.
2nd. The next case in which a man is liable for the act of another which causes injury is, where he has caused or commanded that act. If A orders or procures B to beat C, A is as much liable to C as though he, A, had given all the blows. So if a man employs a builder to build a house of such a size and in such a place that when built it will obscure his neighbour's lights, he is as much liable as though he built the house with his own hands. This class of cases also has nothing to do with the relation of master and servant. The employer is equally liable whether the person who did the act complained of was his servant, or his agent and not his servant. In this case the actual doer of the act—viz., the builder who built the house, the man who actually did the wrong would also be liable. The reason of this rule is obvious. The wrong has been done by him who procured it as much as by the actual doer, and the maxim qui facit per alium facit per se applies.
3rd. There is a third class of cases in which a man is liable for the act of another. If a servant—acting within the scope of his authority—by negligence—injures one of the outside world (an expression I will explain presently), his master is liable. It will be observed that four things are necessary to constitute this liability. First the actual doer of the mischief must be a servant of the person sought to be made liable. It is not enough he is employed, if not as a servant. If I employ my servant to pull down a wall, and by his negligence he injures a passer-by, I am liable. If I employ a firm of builders to do it, I am not liable. The same thing is true if I employ a working bricklayer. I do not know that it is necessary to define or describe a servant. Shortly, the relation of master and servant exists where the master can not only order the work, but how it shall be done. When the person to do the work may do it as he pleases, then such person is not a servant. Next, the servant must be acting within the scope of his employment. If my coachman takes my carriage and horses to give his wife a ride and is guilty of negligence causing damage, I am not liable. Next, the damage to be recoverable against the master must be the result of negligence. If caused wilfully, the master is not liable. If my coachman wilfully drives against anyone or his carriage, I am not liable for the damage resulting. Lastly, the person injured, to have any remedy, must be one I have called of the outside world. The master is not liable to anyone with whom he has entered into some relation, unless such liability was one of the terms of that relation. Thus, if my servant drives over a stranger, I am liable. If my friend is having a drive with me and is injured by my servant's negligent driving, I am not liable, because it is not one of the terms of our relation. If the passenger had paid me money to carry him, I should be liable under the first head of liability, because I had contracted with him that he* should be driven with care. If my servant leaves a stumbling block in the street in the course of his work and anybody falls over it, I am liable. If he leaves a trap door open in my house and my guest falls through, I am not liable. The reason why I am not liable in the cases in which I am not, is the general one I started with, viz., a man as a rule is not liable for the acts of others. But why is the master liable in the case in which he is, viz., to the outsider? Many reasons have been suggested. It has been said he is liable because he has given the wrong-doer the means of doing the mischief. But that is not so. For if the act is wilful, the master is not liable, though the means of mischief are the same. Nor is a man liable who lends his carriage to a friend, however unskilful, who drives over and damages a third person. Then it is said the master is liable under the second head of exception I have mentioned, viz., qui facit per alium facit per se. But that is not true. Because the negligence, the wrongful act, maybe contrary to the master's express orders. I tell my servant never to drive in at a gate with "out" on it. He does and causes damage; I am liable. He drives without a lamp, contrary to my orders; I am liable if damage ensues. Another reason ironically given, but which has great practical effect is, that the master is liable because he is a competent paymaster, while the servant usually is not. There is another reason which exists in fact; whether good or bad, is another matter. A man is walking on the Queen's highway and run over by my servant. He may say, with some colour of fairness, "I was doing what I had a right to do. I was injured by your servant. I had no voice in the choice of him. I could only keep out of the risk of injury from him by foregoing my right to walk in the public streets. Therefore to make you and other masters careful in the choice of servants to whom you give the means of mischief, you and other masters must compensate for that mischief when it happens." Now I do not say that is a sufficient reason, but it is the only one I know of, and it is not a reason applicable to the case of one servant injuring another, for then each servant has a voice in the matter. The master hiring a servant says, "Here is your work, here are your fellow servants, work for me or not as you please." The servant may say, "I do not please so long as so-and-so is in your service, for he is negligent."
There is then no general rule which makes one man liable for the negligence of another. The general rule is the other way. There are exceptions. The case of one servant injuring another is not within those exceptions nor the reason of them, but the contrary. It has been said the servant contracts himself out of the right to compensation. It would be better to say he does not contract himself into it. He can if he and his master agree. Nay, he can stipulate for compensation where there is no negligence. He does not contract that his case shall be an exception to the general rule that a man is not liable for the acts of another. There is no injustice in this. There is in the proposition the other way. For no one can doubt that the dangers of an employment are taken into account in its wages. No one can doubt that the unpleasantness and risk of a miner's work add to his wages. Put sixpence out of his daily wage of five shillings as being on account of that risk, a sum which he may save or use as a premium of insurance. What is the proposal of those who would make the employer liable but this, that the servant shall keep the premium in his own pocket and yet treat his master as the insurer. I do not believe that this is understood, or it would not be asked for; but it is the truth.
So much for the existing law, and so much for the reason of it. Now for the proposed change and the reason of it.
The largest proposed change is, that the master should be liable to his servant for the negligence of a fellow servant. Why? I have shown that the supposed grievance does not exist. That it is not a natural right that the master should be liable nor any thing that exists in the nature of things. That it is reasonable a railway company should be liable to a passenger for the negligence of its servants, because it has so contracted, and that it should not be to one of its own servants, because it has not so contracted. We are to start afresh then and make a new rule. Why? Why if I have two servants, A and B, and A injures B and B injures A by negligence, should I be liable to both when if each had injured himself, I should not be to either. There can be but one reason for it, viz.—That on the whole, looking at the interest of the public, the master and the servant,it would be a better state of things than exists at present. Is that so? Now we must start with this, that it is under the present law competent for a servant to stipulate with his master that the master shall be liable for the negligence of a fellow servant, or in respect of any hurt or injury the servant may receive in the service. So that the difference in the law, if changed as proposed, would be this. At present the master is not liable, unless he agrees to be; on the change he would be unless he and the servant agreed he should not be. For I suppose it is not intended to forbid the master and servant contracting themselves out of the law. That is to say, if a man prefers to take 5s. a-day and no liability for accidents, rather than 4s. 6d., and the master prefers the former terms, it is not, as I understand, proposed to prevent their entering into a binding agreement to that effect. That would be a most mischievous interference with the freedom of contract, and would give rise to gross injustice and fraud on the master. I cannot suppose anything so outrageous, and proceed to consider what will follow if the liability is optional, but to exist where the parties have not agreed to the contrary. Every prudent employer of labour will immediately draw up a form to be signed by his workmen, that the master shall not be liable for a fellow servant's negligence. Or he will hire men somewhat on these terms, "5s. a-day, and no liability; 4s. 6d., and liability, and I will either compensate you myself, or apply the 6d. to an insurance for you." I have put 6d., but I believe the difference of a farthing would make the man choose no liability. The present claim for liability, I repeat, arises from the workman not appreciating that he receives the premium now, and yet would make the master the insurer.
The great employers of labour will understand the change in the law and guard against it. The mischief and wrong will be in the case of men who, not knowing of the change, will go on paying the wages which include the compensation for risk, the premium of insurance, and yet find they have to pay compensation when the risk happens, and that they are insurers though they have not received the premium.
What good will the new law do? None to the workman, except in such cases as I have last mentioned. Cases of surprise and injustice. For where it is known it will be guarded against. And even if the law were made obligatory, in spite of bargains to the contrary, it would not profit the servant. Because it is certain there is a natural rate of wages, one fixed by what neither master nor man can control, and that if they are practically added to one way, they will be taken from in another. If a manufacturer's wages now are £10,000 in the year, and he is made to pay compensation to the amount of £1,000 a-year, his wages will fall to £9,000. He cannot charge more for his produce because he has to pay more, and if he could, his sales would diminish and injury be done to the workman in loss of work.
What good then will the change do? The only thing I have ever heard suggested is, that it will make the master more careful in the choice of his servants. I suppose it would. For it would not have an opposite tendency. But is it just or reasonable that for this small good masters should be made liable to the extent intended. That to prevent one accident through careless hiring of an incompetent fellow workmen, the master should pay a thousand compensations where he has done his best to get careful men. Is he not under sufficient inducements to be careful already? How rarely does an accident happen to the workman without mischief to the master and without an appeal to his charity. Further, I ask, would the workmen like that system which has prevailed in some employments, and to which the masters would be obliged to have recourse, viz., not employing a workman unless he produced a certificate of competency and fitness from his former employer? Still further, if some good would be done in this way, would there not be more mischief in another? Every one knows the recklessness bred by familiarity with danger. The man who would not open his lamp in a mine at first, will do so after a time. Another thing. It is a respectable feeling, though mistaken, which prevents servants doing what they call "split" on each other. The consequence being, that negligence leading to danger by one workman is concealed from the master by the others. Now I do not say that workmen will injure themselves for the sake of compensation; but I do say, that whatever tends to lessen their reason for care and good conduct as compensation would, tends to make them less careful in themselves and more disposed to conceal want of care in others.
I say, then, that the proposal to make the master liable to a servant for the negligence of a fellow servant, is contrary to principle, unjust, unreasonable, and calculated to produce, if not no good, at least more harm than good. It would be better to make servants liable to their masters for the damage caused by their fellows, than to make masters liable to them as proposed.
One word as to the Government Bill. Its provisions are needless or wrong. If the master, by an act of omission fails in his duty to a servant, he is liable, whether the failure was in himself personally, in his manager, or other agent. If the injury arises from an act of commission, then the reasoning I have used is applicable. Let the actual wrong-doer be responsible. No servant is bound to obey a command attended with danger.
One word more. It is proposed to guard the master by provisions that he shall not be liable if the servant contributed to the injury. There are other qualifications. In vain. The untruths told in accident cases are prodigious. They will be told in such as the Bill will give rise to. I foresee a frightful crop of litigation if it passes.
- As has been amusingly asked, why, if the housemaid puts damp sheets on the footman's bed and he leaves the scuttle at the foot of the stairs and she tumbles over it, should the master be liable for the damage ensuing?