Priestley V. Fowler and the Factory Acts
| DOI | http://doi.org/10.1111/j.1468-2230.1963.tb00720.x |
| Published date | 01 July 1963 |
| Date | 01 July 1963 |
| Author | R. L. Howells |
PRIESTLEY
v.
FOWLER
AND
THE
FACTORY ACTS
“
.
.
.
the nipeteenth-century philosophy of law, that put
the free human
will
in the central place as that upon which
everything must turn, gave
us
a dogmatic reduction of all
liability to contract and tort-to liability to perform what
one had freely undertaken and liability to answer for harm
which he had culpably caused.”
IN
the world of industry, the
“
free human
will
”
is far removed
from the rigid standards imposed by contemporary legislation; yet
on
examination this legal
volte face
seems to have been unavoid-
able. When confronted with the hard facts of industrial life,
the legal philosophy of
laissez-faire
served only
to
produce the
cheapening of human life.2 Over the years one compromise after
another had to be made with the purity of the
common
law doc-
trines, until the modern employer of labour finds himself subject
to
the absolute obligations of the current Factories Act.s
One of the interesting,
if
little known, devices by means
of
which the ends of reform were secured was penal compensation.
This was a device intended to introduce
a
measure of workmen’s
compensation through the magistrates’ courts, as part of the
enforcement of the early industrial safety legislation.’ Under
the scheme the whole
or
any part of
a
fine inficted for breaches
of the provisions of the Acts could be applied,
at
the discretion
of the Secretary of State, for the benefit of any person injured
in consequence of the breach
or
his family. The coming into
force of section
29
(1)
of the Factories Act,
19~59,~
marked the
formal abandonment
of
the idea,
so
this appears
a
convenient
moment to survey its history, and to attempt to evaluate its
importance. Tables of known awards of penal compensation are
incorporated in this account,e and while the figures suggest that,
in monetary terms, the scheme can at no time have been of great
social importance, there is nevertheless much of legal interest in
the way in which
it
was operated.
An
account of the origins
“Justice Theory
and
Constitutional Law-Liability without Fault
”
(1920) 33
Harv.L.Rev. 86
87.
9
&
10 Elk.
2,
c.
34.
7
&
8
Vict. c. 15 (factories)
and
13
&
14 Vict.
c.
100
(mines)
were the first
7
&
8
Eliz.
2,
c. 67.
Now
9
&
10
Eliz.
2,
c.
34,
e.
156
(2).
See Table
1
(factories), Table
2
(mmes)
and
Table
3
(cbmpansons
with
the Employers’ Liability
and
Workmen’B
Compensation Acte) on
pp.
392,
393
and
394, below.
Laski,
“
Basis of Vic8~0US Liability
”
(1916) 26 Yale L.J. 104, 126.
safety statutes.
867
368
THE
MODERN
LAW
REVIEW
VOL.
26
and development of the scheme may also have a value in illustrat-
ing the advantages and disadvantages of what might be termed
the
“
civil
”
and
“
criminal
”
approaches to accident prevention;
i.e.,
whether the extension and utilisation of the criminal,
or
the
civil, law can do more to raise standards of safety in industry.
Finally, the apparent lack of success of the remedy helps to throw
light
on
the conflict between the
“
deterrent
”
and the
‘‘
compen-
sation
”
aspect of employers’ liability at common law.‘ This
survey will involve a consideration of the already well documented
historical development of employers’ liability for accidents to his
servants; but as this topic is
so
closely linked with the develop-
ment of safety legislation,
it
is most profitably examined as a whole.
HISTORICAL
ORIGINS
OF
PENAL
COMPENSATION
The origins of penal compensation are to be found in the industrial
conditions of the middle of the nineteenth century. Before the
period of effective safety legislation the only legal checks upon
industrial conditions were the ordinary remedies of the common
law, which by their nature could only come into play after an
accident had occurred. Nevertheless, a civil claim for damages
against an employer could make
a
contribution to safety in the
following ways
:
(a) by compensating persons for injury caused by an act
or
omission amounting to
a
breach of legal duty owed by the
employer to that
person;
(b) by
making
accidents expensive to the employer and thus
giving
him the stimulus of self-interest in addition to his
feelings of duty in applying
his
mind to reducing these
accidents
;
(c) by the solemn publicity of proceedings following upon
accidents impressing upon all the serious view that the
state took of industrial accidents.
These beneficial results could only follow once a
“
legal duty
”
had been established, and there was a great uncertainty as to
the extent of the master’s legal duties.
It
has been pointed out
that the conception of negligence as an independent tort was
developing rapidly in the early nineteenth century under the
impact of the mechanical risks of the industrial revolution. The
7
See Glanville
Williams,
“The Aims
of
the Law
of
Tort,”
Current
Legal
Problems,
Vol.
4
(1961), pp. 137, 144-172; Friedmann,
Law in
a
Changing
Society
(1969), Chapter
6,
“
Tort*,and Insurance
”;
Ehrenzweig.
Negligence
without
Fault:,pp. 9-12; Fricke. Some Aspects
of
the Employees’ Common
Law
Remedy (1960) Tas.Univ.L.Rev. 383, 385389; Seavey,
‘I
Speculations
as to
RespEdeat Superior
”
(1934)
Harv.
Legal Essays, 433,
447-448.
8
Winfield, The
History
of
Negligence
in
the
Law
of
Torts”
(1926) 42
L.Q.R. 184,
196.
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