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.