Common Employment: Reflections on Two Recent Cases
| Date | 01 June 1938 |
| DOI | http://doi.org/10.1111/j.1468-2230.1938.tb00392.x |
| Published date | 01 June 1938 |
| Author | J. Unger |
COMMON EMPLOYMENT
43
COMMON EMPLOYMENT
Reflections
on
Two
Recent
Cases
WO
methods of escape from the mischievous operation of the
doctrine of common employment have recently come into promin-
T
ence. The first method is based upon the fact that a master can
plead common employment only when he is sought to be held liable
vicariously, but not when sued for failure to discharge duties laid upon
him personally, by common law or by statute. Thus,
as
a result of
Wilsons
and Clyde Coal Co.
v.
English,
[1938]
A.C.
57,
where the injury suffered
by the servant, although occasioned by the negligence of a fellow-servant,
can
be
traced to a breach of duty laid
upon
the master, such
as
the duty
to provide a safe system of working, the master cannot shield himself
behind the negligence of the fellow servant. His duty is to provide a safe
system, and not merely
to
select competent servants to whom this duty
can be delegated.
No
doubt, a large proportion of industrial accidents is
due to faulty system, and this decision will therefore
be
of great importance,
particularly if combined with the
res ipsa loquitur
principle, as suggested
by the learned writer commenting on this case in Vol.
I,
No.
3,
p.
229
of this Review. But no progress has been made towards alleviating the
position of servants injured in accidents solely due to the negligence
of
fellow-servants. Recent attempts to avoid the application
of
common
employment in such cases have completely failed. They were based upon
a rule, believed to restrict the
scope
of the defence of common employment
by requiring not only employment by the same master, but
common
employment. This restriction, described by Lord Brougham in
Bartonshill
Coal
Co.
v.
McGuire
(1858),
3
MacQ.
300.
at
p.
313,
as a “most material
qualification” upon the doctrine, has,
it
is submitted, been deprived of all
meaning, at any rate for practical purposes, as a result of the decisions
in
Radcliffe
v.
Rabble
Motor
Services, Ltd.
(1938), 54
T.L.R.
260,
and
Metcalfe
v.
London Passenger Tvansport Board
(1938),
54
T.L.R.
678.
The qualification
can
only be important if it leads to fairly frequent
findings against common employment. This would be the case if, following
Lord Chelmsford in
Bartonshill Coal Co.
v.
McGuire (supra),
common
employment were confined to employment within the same department of
duty. This test appeared to be formulated with a view to “the old condi-
tions under which
a
few workmen worked with simple tools under the eye
of the master” (Bohlen,
Studies in the Law of Tort,
p.
463).
The defence
would then scarcely be available to larger industrial undertakings organised
in numerous departments. Yet the desire to enable the expansion of
industrial undertakings by exonerating them from liability towards their
employees was, as Bohlen points out, one of the chief causes responsible
for the establishment of the doctrine. That the obstacle placed by Lord
Chelmsford’s test in the way of unfettered industrial development was
clearly perceived appears from the judgment of Pollock, C.B., in
Morgan
v.
Vale of Neath Railway
Co.
(1865),
5
B.
&
S.
at p.
742,
where the threat
of a “flood of litigation is pointed out” which would result
if
“every large
mercantile and manufacturing establishment would be split up into different
departments of labour.” Experience, moreover, showed that the increase
of accidents was not only due to the rising number of men employed by
the same master, but
that
it
was even more affected by the
growing
complexity of industrial organisation. On reflection it becomes evident
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