men in the Government employment, such as those engaged in the Royal dockyards, are not within the purview of the Act (f). It is believed, however, that the compensation and allowances made by the Government, in cases of death and injury, render the application of the Act to such workmen unnecessary.

(f) See also ante, p. 165. That there could be no petition of right for personal injury, and that no action would lie under the Act against any of the superiors in the department other than the person actually negligent, see ante, p. 109, note (c).

Chap. IX.

CHAPTER X.

OF THE CIRCUMSTANCES TO WHICH THE EMPLOYERS'
LIABILITY ACT, 1880, APPLIES.

General effect IN the preceding chapter the persons who were affected

of Act.

by the provisions of the Employers' Liability Act, 1880, formed the subject of consideration. It is proposed now to examine into the circumstances under which the provisions of that Act become operative, and the extent of the changes thereby introduced into the liability of employers. As has been seen in a former part of the book, the public may in general hold a master responsible for all the acts of his servants as such (a); while the servants themselves can only charge their master with the consequences of his own personal negligence. Under the Employers' Liability Act, however, they are entitled in specified cases to hold him responsible, before certain tribunals, not only for some part of his own negligence, but also for that of some of their own number. For this Act () provides that where "personal injury is caused to a workman (c) by reason of" various matters specified in sections 1 and 2, "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." In other words, in

(a) Ante, p. 93.

(b) 43 & 44 Vict. c. 42, s. 1. Set out in Appendix (C).

As to who is a workman, see the preceding chapter.

these cases the employer cannot avail himself of the defence of "common employment " (d).

Chap. X.

tion to be

But, as was pointed out by Lord Cairns, C. (e), "common Nature of employment" as a defence is only an example of the rule right of acand not the rule itself, which stands on higher and broader examined. grounds, namely, the duty which the employer has taken upon himself by the contract of service. And therefore as the terms of the Act are apparently directed at the defence of common employment (ƒ), it is exceedingly difficult to say what is the true position of workmen under the statute, and it becomes necessary to first ascertain as far as possible the nature of the right of action which it purports to confer. The true principle to be employed in interpreting Act to be conthe statute is this-that the Act was passed in favour of favour of workmen, and that, as far as the plain meaning of its workmen. terms will permit, it should be construed reasonably and largely in furtherance of the intention of Parliament (g). Indeed, it will be seen presently that a strict interpretation of the sections quoted would defeat the objects of the Act almost entirely (h).

strued in

Though it may almost seem superfluous to make any Personal remark upon the phrase "personal injury," yet, in the injury. sense in which it is obviously used here-of physical damage to the person-it appears to include such injuries to the health as may be caused by the inefficiency of the

(d) See Chap. VIII.

(e) In Wilson v. Merry, L. R., 1 Sc. App. 326.

(f) See Griffiths v. Dudley, 9 Q. B. D. 357; 51 L. J., Q.

B. 543.

(g) Gibbs v. G. W. R. Co., 12 Q. B. D. 208; 53 L. J., Q. B. 543; see Thomson v. Robertson, 22 Sc. L. R. 97, cited post, p. 321; Morrison v. Baird, 10 R. 271, 282 (Sc.).

(h) See post, p. 237. While the authors hope to examine the statute with some care, it is not their intention to animadvert upon its phraseology beyond here remarking that it bears on its face the impress of the passage through a popular assembly of a much-contested measure on a popular subject.

Chap. X.

"Caused by reason of; what plaintiff must show.

Liability where third

person inter

venes.

"The work

man, or... any persons entitled in case of death."

sanitary arrangements (), as well as injuries resulting from what is usually termed an accident. To enable the plaintiff to succeed it will be upon him to show, first, the existence of one or other of the matters specified in the sections above referred to; and secondly, that the personal injury was caused by reason thereof; both of these things being conditions precedent to the bringing of the workman within the Act and placing him in the position of one of the public. It is not sufficient for the plaintiff to show a defect, for example, but he must in addition bring forward evidence which in the opinion of the Court is sufficient to justify a finding by the jury that his injury was caused by reason of the defect (k), and the defect, or whatever else may be complained of in the particular case, must in some way connect itself, or be connected by evidence, with the accident (1).

The maxim in jure non remota sed proxima causa spectatur is one of daily application, and will be more conveniently discussed at a later chapter, to which reference must be made (m). The reader may be here reminded, however, that liability may exist in some cases, although the damage would not have followed the neglect or default without the intervening act of a third person, which was necessary to realize the mischief occasioned by such neglect or default, if the intervention is such as might not unreasonably have been expected (»).

The persons entitled to the benefit of the Act in cases where the workman's injury has resulted in his death are to be ascertained by reference to the general law, and

(i) See Couch v. Steel, 3 E. & B. 402; 23 L. J., Q. B. 121; and see Chap. VII., ante, pp. 166, 169, 176 et seq.

(k) Martin v. Connah's Quay Co., 33 W. R. 216, cited post, p. 253.

(7) See per Lord Cairns, C., in Met. R. Co. v. Jackson, 3 App. Cas. 193, 197; 47 L. J., Q. B. 303, 306.

(m) Post, Chap. XII.

(n) Clark v. Chambers, 3 Q. B. D. 327; 47 L. J., Q. B. 427.

i

especially Lord Campbell's Act, which will be found fully explained hereafter (0); and it is sufficient to say here that the phrase, "persons entitled in case of death," provides for the right of action given by the Act amending Lord Campbell's Act (p), and also the right to maintain an action of reparation in Scotland (2).

Chap. X.

Act not

those of

The section, we have seen, enacts that the workman Rights under shall have the same right of compensation and remedies against altogether the employer as if the workman had not been a workman of identical with nor in the service of the employer, nor engaged in his work. public. These words are quite plain and distinct, and yet it is clear that they cannot be taken literally, for by later sections the right of compensation is limited to the amount of three years' wages of the workman (), and the remedies are confined to the County Court (s). The word "remedies," indeed, appears to be unnecessary, and the passage may be thus accurately expressed-" shall have the same right to recover some compensation from the employer." It may be noticed that the right and remedies mentioned are against the employer, and that the workman's rights against his fellow-servants therefore remain unaltered by the Act (t). It is also important to observe that the Act does not confer any new general rights upon the workman, but only gives him, after he is injured, a certain right to claim compensation from his employer (u). The above words, again, are incapable of a literal construction, for that would place the workman in the position of a stranger coming upon the employer's premises. If he was to be taken as not being a workman of, nor in the service of, the employer, nor engaged in his work (x), it would fol

(0) Chap. XIII., post, p. 407.

(P) 27 & 28 Vict. c. 95: see the Act in Appendix (B). (9) See post, Chap. XIII., p. 426.

(r) Sect. 3.

Sect. 6.

(t) Ante, Chap. V., p. 114.

(u) Ante, Chap. IX., p. 206.

(x) In Indermaur v. Dames (L. R., 1 C. P. 274; 2 ib. 311;