LAW REFORM (PERSONAL INJURIES) ACT, 1948

AuthorJ. Unger
Date01 July 1949
Published date01 July 1949
DOIhttp://doi.org/10.1111/j.1468-2230.1949.tb00130.x
ST
ATIT'L'ES
LAW
REFORM
(PERSONAL INJURIES)
ACT,
1048
THIS
Act abolishes the defence of common employment and
resolves the so-called problem of alternative remedies by deter-
mining the manner in which National Insurance benefits are to
affect the measure of damages for personal injuries.
In this
Reuiew
the passing of common employment can only
be noted with relief and a sense of achievement. During its final
stage the injustice of the rule was sharpened by the difficulty of
predicting its operation which resulted from well-meaning judicial
attempts to restrict its application.
If
there is anything worse
than open injustice it must be capricious injustice. Common
employment suffered this ultimate degradation when its application
came to depend upon such distinctions as that between collisions
of
tramcars and collisions of buses. With these subtleties
a
fruitful source
of
litigation has disappeared
so
as to make it easier
to settle out
of
court the increased number of claims for damagee
which must now be expected. The defenders of common employ-
ment predict an increase, not only of litigation, but even
of
industrial accidents, as the result
of
the abolition
of
the doctrine,
because workmen will now be less careful to avoid accidents.
It
remains to be seen whether these fears are justified. Those who
need reassurance on this matter may be comforted
to
know that
the same argument was used when Workmen's Compensation was
introduced. Even without common employment, there remain
some powerful legal deterrents against carelessness, such as the
defence of contributory negligence and the risk of civil and criminal
proceedings.
The abolition of common employment in section
1
(1)
is
suppleniented by the consequential repeal of the Employers'
Liability Act, 1880, in section
1
(2),
and by a provision, in
section
1
(a),
rendering void any agreement which would enable an
employer to avail himself of the now proscribed defence. That it
should have been thought necessary
to
provide against attempts to
restore common employment through the medium of contract
lends, posthumously, some colour to the implied term theory of the
basis
of
common employment.
In section
2
the Legislature has given its answer to the question
considered by the Monckton Committee, how far the right to
damages for personal injury should
be
affected by the provision of
National Insurance benefits. Following the advice of the Monckton
Committee, the Legislature has rejected the solut,ion which was
adopt,ed with regard to Workmen's Compensation,
of
putting the
347

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