The Position of the Injured Third Party
| Published date | 01 March 1939 |
| Author | Hector Hughes |
| Date | 01 March 1939 |
| DOI | http://doi.org/10.1111/j.1468-2230.1938.tb00417.x |
THE INJURED THIRD PARTY
295
Transport Board ’bus driver, riding in a London Passenger Transport
Board ’bus
as
a passenger on
his
Sunday off, would
be
able to recover
if
the ’bus were driven into a lamppost, because he would
by
then have been
reinvested in his character
as
third party. “In such a case the person
injured is substantially a stranger, and entitled
to
all the privileges he
would have had if he had not been a servant.””
It
is submitted that the doctrine, for the reasons which have been
given,
is
logical and intelligent, and that the charge of having “little
regard to reality or to modern ideas of economics or industrial conditions”l0
is applicable only, and indeed
was
only intended to be applied, to the
justification given for the rule and not to the rule itself.
The implied term has all along been merely a legal fiction, and
“
the old
common lawyers were a robust people, and if a fiction was convenient under
the old rigid forms of pleading they did not
worry
about its correspondence
to reality or to juristic concepts. But it does not follow that they did not
realise the true nature
of
the concept.”lg
Rigid
forms of pleading have
gone, but the mbust side of the profession
still
finds fictions a convenient
way
of
making rules of law intelligible, and
it
still does not follow
that
they do not realise the true nature of the concept about which they
are talking.
To
defend the doctrine of common employment is not of
course
to say
that compensation ought not to be paid
to
the victims of industrial
accidents. It is essential for the physical, spiritual and socialwell-being
of the nation
as
a
whole that adequate compensation should be secured
to the industrial population, but it has to be realised that industry
is
a
very special field with special problems of its
own.
It
may be doubted
whether justice would really in the long run be done by abolishing a rule
which has an intelligible and intelligent part to play in English Common
Law. The remedy is to
be
sought rather in bringing the Workmen’s
Compensation Acts into line with “reality and modern ideas of economics
and industrial conditions” and,
be
it added, of justice.
STEPHEN CHAPMAN.
THE POSITION
OF
THE INJURED THIRD PARTY
Professor
R.
S.
T. Chorley and
Mr.
A.
M.
Finlay in the June number
of
the
MODERN
LAW
REVIEW
take different views of the reasoning expressed
in my article upon which they comment. This is why
I
ask leave to reply
to one of them. Professor Chorley says that
I
appear to be swimming
against the stream of modem social legislation but in this he is mistaken
as
I
hope to show. Mr. Finlay, on the other hand, does me the honour
of
suggesting, and I hope correctly, that
I
am somewhat in advance of
the main current in arguing that our system of compulsory third party
insurance by means
of
private insurers is still a long way from perfection,
l7
Hutchinson
v.
Ywk,
Newcastle
&
Berwick Railway Company
(1850), 5
Ex.
343,
353
per
Alderson,
B.
See
also
Tunney
v.
Midland Railway Company,
[1866]
L.R.
I
C.P.
291.
Wilsons
&
Clyde Coal Company
v.
English.
[1938]
A.C.
57.
80
per
Lord
Wright.
Lord
Wright
in
6
Camb.
L.
J.
317.
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