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286

EMPLOYERS' LIABIUTY

1NTRODUCTORY

287

ass&ss ans^{if he} - ■*- >> *• -ter:

Dunng the second half of the nineteenth century judicial on veered in favour of the worker, and efforts began to be madę to IS** scope of common employment. The doctrine was not fi_naUv ib ? ^’

datę-rjh" l™" ^a,"^d- ^,hOU8^h ">«•> -trlcted in »op“ ^ ^ e, the harshness of the law was chief]v modified bv The evasin ^ common employment through the develoDment of th    * ^{n of}

employer was liable for an fnjury to h^Z_ker    **

^neghgence or breach of statutory duty.¹* So far as the latter ■ ' ^ °'^Vn no particular difficulty existed if a    ,    ! ,^tter 15 con««ied,

employer by statute. .LTd^o,    ^ “P ^

its performance to another.» Bot how can an employer' be pełn ił⁸ neghgent unless he actually takes a hand in the work hlmself TohZZ lmpossibihty where the employer is not a human indiyidual bi/as i^

generaTmle a c ^ ^during. ^{the nineteenth} century and is now the' generał rule, a company with independent legał personality? Si.rh

thTdSri f^d °^{nly 3Ct thrOU8h} '^{tS servants}' if they wereneglLn" óf liabibty" " °^{f COmmon} ”>*»-« ^aPpIled and relieyed the

. *£Ss

ZZ ^{quite C}!f^ar'" f^{id Lord} Herschell,- "that the contract between employer and employed mvolves on the part of the former the duły

tiin e^J ^Sa°n ⁶ ^ 5 P""** ^pr°^{per a}P**««* ««d

in them in a proper condition, and so to carry on his ooerations as

!he dange^T ^emP',^{OVed by him} *°    Whateyer

the dangers of the employment which the employed undertate.

A-C.' 325.    o^Lo^^uf held    Im ^& j-J™'^{ln S}"""'^r Baker&I^189,1

para. 25.11. Mo»    ' ^,ha' ^{merc knowled}8* d,d not defeat the aorkmans claim

^:    st;? r *^MTJ^wrth «**

abolition o( the doctrine exłends onlv tó personal inhfri“ ^forbidden:    *-><3t The

, sun-iees for the purposes of defamahon: £ra. 1221. Mo w    °^ennin* ^MK *“«**»«» »^h" *

hee, e.g. Railcliffe v. Ribhlr Motor Sermccs (19391 AC ">15 Graham n    r

Uncaster v. LP.T.B. |194S( 2 Ali E R. 796 HL    ~ ' ^{Crnlulm v}- Glasgow G>rp |1947) A.C 368.

" -n auh^    ^com">°n employment atforded no de,en.

r^^8<l^eP^0J'^{ea b}^ ⁽he^»v^łReform^^^|^^r| ^jurieT/Art^4S^t,sT(2))^t^l ^7^lal!?^{er5 ,}-**'^bd'b '^Vl

limited numher of detined cases.    ^U '' ^Ac* ^,9ł8< ^s 1 <2)) algo evcluded the defence in ■<

'“See para. 7 16, above.

²¹ Smith P. B^r 118911 A.C. 325 a, %2    ^S SUP^Cnor: MIm"' <’ Meny ,1868) L R. 1 H.L.tSc ) 326

ct bhp™ is certainly not to be numbered the risk of the employ-ejc^negllgence and the creation or enhancemen. o, danger thereby

engendered."

• ihP famous case of Wilsons and Cli,dc Coal Co. v. Engltsh Lord ^Uter' a iTthe emplover's duty as threefold: "the pnwision ot a _wright redefmed h^emplo^^    _{and a} p_r„_pe, system and

compete¹¹    „ _Tj d_uty is not absolute, for it is fulfilled by the

^'e rfdóe careatU skiU "But it is no, fulfilled by entmsting its ^eni to employees. even though selected with due cant and

^S^'₍Z the abolition of common employment, therefore, it was importu maintain carefully the distinction between a breach of the emp oy-S personal duty, for which he was liable, and the mere negligence o fellow employee, for which he was not"⁴:

"There is a sphere in which the employer must exercise his discretion Jd there are other spheres in which foremen and workmen must SemiseTheL”, is no, easy to define these spheres but where the system or modę of operation is complicated or highly dangetcios pmfonged or involves a number of men performing d.fferen, func-«ons it is naturally a matter for the employer to take he r«p<n».bib r5 dSng what system shall be adopted. On the other hand, where the operation is simple and the decision how it ^s*™ ^{l be do}™ has to be tato. frequently. it is natural and reasonable that it should be left to the foreman or workmen on the spot.

With the abolition of the doctrine of common employment in l«‘ the^employer became liable as much for the m«ligenoe of a of the claimant acting in the course of his empio^t as o b^h ^ personal duty, and it thus, became unnecessary always to distmgr sn

between the two kinds of wrongdoing. ^Nej;^erth^ employer's personal duty was not destroyed, and the emptoyer b tod y liable either yicariously or for breach of his personal duty- Add bonaUy there are numerous and detailed statutory duties which are rmposed KtTupremployers and these haye the effect of .nc«as.ng, his oyerall liability fomnjury suffered by his workers. ^V,ca?^^a^₀^_s subject of a separate chapter and here we shall ^erthe personal duty to his employees, but in yiew of the mass of statuton

'•'119381 A.C 57.

-S-r S r.tL Swift 11943, KB. 557; W =-■ Cardiff R.D.C ,1950, 1 AU ER. 819.

” 119501 1 AU E R. 819 at 822-823. ,vr Lord Oaksey

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