Seanad Éireann debate -
Wednesday, 17 Dec 1958

Vol. 50 No. 4

Law Reform (Personal Injuries) Bill, 1957—Second and Subsequent Stages.

Mr. Murphy

I move that the Bill be now read a Second Time. This Bill, as Senators will know, was promoted in the Dáil by a group of Labour Deputies. The trade unions have discovered difficulty, because of the doctrine of common employment, in getting workmen's compensation for injured workers because the employers were able to plead that the injury was caused by a fellow worker, and there is some legal doctrine which exempted them from paying workmen's compensation in those circumstances.

The Bill is a very necessary and a very good one. It was promoted, as I said, by a group of Labour Deputies, and we are glad that the minority have, in this case, been able to get their view accepted and we are grateful for the co-operation which was given by the two larger Parties in getting this very good and very necessary amendment to the present legislation.

Mr. O'Quigley

The persons concerned with the introduction of this Bill are to be congratulated. The doctrine of common employment is now somewhat obsolete and the fact that the Employers' Liability Act, 1880 has been repealed in full by this Act is an indication of the obsolescence of that doctrine. In former times workmen were not entitled to the same benefits as more enlightened times have conferred upon them. This is the last remnant of some of the disparities from which employees and workers suffered in olden times.

I think the House should be aware— it was probably due to a slip on the part of Senator Murphy—that this Bill will affect mostly common law actions. It will not affect any actions under the Workmen's Compensation Code. It is to the narrower confines of common law actions that this Bill will apply. The defence of common employment would arise in a case where an employee sues his employer for negligence by reason of an unsafe system of work or negligence of some similar kind. If the mishap which caused the injury resulted from some negligence on the part of a colleague employee, then the defence of common employment would have applied. This Bill will remove that.

Only one matter perturbs me about the Bill as it stands. I do not know whether or not the Special Committee which considered this matter took it into account. I should say that this Bill follows the pattern of the 1948 Law Reform Act in England. In that Act, it is provided in a short section: "This Act shall bind the Crown." My fears about this Bill are that Section 1 (4), by referring only to proceedings brought against the Minister for Finance under the Road Traffic Act or the Fatal Injuries Act, might imply that, in other circumstances, where the Minister for Finance, as representing the State, was the employer, the defence of common employment could still apply. The scope of that section does not appear to me to be as wide or as positive as the English Act which states that the Act shall bind the Crown. That would apply in road traffic cases, fatal injuries cases, and all the rest of them. For that reason, I should be somewhat hesitant about agreeing to the Committee Stage to-day because I should like to have an opportunity of considering it.

An Leas-Chathaoirleach

That does not arise yet.

Miss Davidson

I have great pleasure in supporting this Bill, sponsored by the Labour Party, which proposes to erase from our legal code the infamous defence of common employment.

Generally speaking a master is liable, at common law, for the torts of his servant while acting in the course of his employment. One exception to this general principle was established by the courts in 1837— this became known as the doctrine of common employment. It held that a master was not responsible for any harm done by one of his servants to another servant in the common employment of the master.

If the baker's roundsman backed his van into the delivery boy who was helping him, the baker employer would not be held liable because the delivery boy, being in common employment with the roundsman, was regarded as voluntarily accepting the risk of being injured by his fellow servant.

With the passage of time the roundsman-baker boy episode of 1837 was extended by the courts until the doctrine of common employment was applied to every conceivable set of circumstances. Signalmen were held to be in common employment with engine drivers, drivers of buses owned by subsidiary companies of a parent company were held to be in common employment, so also were the employees of contractors and subcontractors operating for the same principal. Worst of all, workmen injured while carrying out the instructions of their supervisors were held to be in common employment with their foreman and were deprived of their common law remedy because of the infamous doctrine. This doctrine of common employment is all the more infamous because it is a judge-made rule of law injected into the legal code in 1837 in the well-known case of Priestly v. Fowler. The doctrine was not proposed or sanctioned by Parliament—though Parliament was reluctant to abolish it. It has been described, among other things, as a prejudiced legal scandal and swindle and as a legal invention of the harsh anti-social climate of the pre-Victorian era.

The doctrine, legal swindle as it is, became so well-established in Great Britain that it was not abolished until 1948. It has dominated the law of master and servant in this country for 121 years and has caused untold hardship and suffering to thousands of unfortunate workmen and their dependents. It has been the shame and disgrace of our legal code since 1922—no one can defend it and it is my great pleasure to advocate its abolition. Social reformers laboured for its abolition inside and outside the British Parliament for over 100 years.

The Employers' Liability Act of 1880 made slight inroads into the effect of the doctrine of common employment mainly where the injury was attributable to the negligence of a supervisor but the Act was ineffective—the abolition of the defence of common employment will render the Act of 1880 superfluous.

It is an amazing thing that this legal fiction has survived until the present day. One would have thought it would have become a dead letter in the social climate of our more enlightened day but the defence of common employment was successfully pleaded (for the last time, I hope) in the Irish High Court as late as July of this year in the case of the British & Irish Steam Packet Co. v. Henry Gahan.

This Bill is 121 years overdue and I have pleasure in recommending it and I should like to express the hope that a Bill to amend the equally infamous doctrine of "contributory negligence" will soon appear on our Order Paper.

Mr. Lenihan

As a lawyer, I welcome this Bill which removes a Victorian relic from our Statute Book. It is a remnant of the days of laissez faire when every opening possible was given to an employer to escape from liability which he owned his workers. In this case, in the last century in Britain, it was used by employers to escape from liability where workers were injured in the course of their work. However, thanks to the interpretation of this doctrine by the courts in recent years. I think it has very seldom succeeded and the courts have leaned very heavily against it. In fact, I think for a long number of years, it has been a legal fiction, as Senator Miss Davidson said in another context.

I remember very few cases in the past 20 or 30 years where it has succeeded as a defence, thanks to the interpretation of the courts. This is an example of the Legislature putting the cap on the sensible interpretation carried out over the years by the courts. It is a complete anachronism in these days and in this age when there are insurance companies and this is a technical way out for insurance companies which has seldom succeeded in recent years.

I do not see much in Senator O'Quigley's point about Section 1 (4), which reads:—

"The defence of common employment shall not be open to the Minister for Finance in any proceedings brought against him under Section 170 of the Road Traffic Act, 1933 (No. 11 of 1933), or under Section 7 of the Fatal Injuries Act, 1956 (No. 3 of 1956)."

I fail to see how it could be improved on. They are the only two Acts under which the Minister for Finance at the moment can be made liable for damages under a negligence action. It seems clear enough from the sub-section that this defence of common employment is not available to them under the two headings under which it could be made at the moment. Therefore, I fail to see how that sub-section could be improved on as Senator O'Quigley has stated.

Professor O'Brien

I welcome this Bill and believe it is long overdue. It is rather a pity that an essential measure of this kind should have to be redrafted by a group of private Deputies. I remember some years ago we were told there was a Law Reform Committee sitting in an effort to bring the law up to date. Irish law and English law have diverged considerably in recent years. English law has been reformed and brought up to date much more than our law and the students in the universities and the King's Inns are finding it more difficult to get textbooks to study because the English textbooks are no longer suited to Irish conditions, and this problem of common employment is one more example of that. The law in relation to that has been changed for some years in England and it is only now being changed here.

I hope this Law Reform Committee, which I understand was in existence some years ago, is not in abeyance because this is merely one of the obsolete provisions in law which have survived in this country but which have been swept away in other parts of the world where the common law has been reformed more than it has been here.

Question put and agreed to.

Agreed to take remaining stages to-day.

Bill put through Committee, reported without amendment, received for final consideration and passed.