Employers' Liability
EMPLOYERS' LIABILITY, and WORKMEN'S COMPENSATION. [1] The law of England as to the liability of employers in respect of personal injuries to their servants is regulated partly by the common law and partly by statute; but by the Employers' Liability Act 1880, such exceptions have been grafted upon the common law, and by the Workmen's Compensation Act 1906, principles so alien to the common law have been applied to most employments that it is impossible now to present any view of this branch of the law as a logical whole. All that can be done is to state the nature of the liability at common law. the extension of it effected by the Employers' Liability Act 1880, and the new liabilities introduced by later acts.
Common law
At common law the liability of a master is of a very limited character. There is, of course, nothing to prevent a master and servant from providing by special contract in any way they please for their mutual rights in cases of personal injury to the servant. In such cases the liability will depend upon the terms of the special contract. But apart from any special agreement, it may be broadly stated that a master is liable to his servants only for injuries caused by his own negligence. Injuries to a servant may arise from accident, from the nature of the service, or from negligence; and this negligence may be of the master, of another servant of the master, or of a stranger. If the injury is purely accidental the loss lies where it falls. If it arises from the nature of the service, the servant must bear it himself; he has undertaken a service to which certain risks are necessarily incident; if he is injured thereby, it is the fortune of war, and no one can be made responsible. If the injury is caused by the negligence of a stranger, the servant has his ordinary remedy against the wrong-doer or any one who is responsible as a principal for the conduct of the wrong-doer. If it is caused by the negligence of a fellow-servant, he likewise has his ordinary remedy against the actual wrong-doer; but, by virtue of what is known as the doctrine of common employment, he cannot at common law make the master liable as a principal. The only case (independently of modern legislation: see below) in which he can recover damages from the master is where the injury has been caused by negligence of the master himself. A master is negligent if he fails to exercise that skill and care which, in the circumstances of the particular employment, are used by employers of ordinary skill and carefulness. If he himself takes part in the work, he must act with such skill and care as may reasonably be demanded of one who takes upon himself to do work of that kind. If he entrusts the work to other servants, he must be careful in their selection, and must not negligently employ persons who are incompetent. He must take proper care so to arrange the system of work that his servants are not exposed to unnecessary danger. If tools or machinery are used, he must take proper care to provide such as are fit and proper for the work, and must either himself see that they are maintained in a fit condition or employ competent servants to do so for him. If he is bound by statute to take precautions for the safety of his servants, he must himself see that that obligation is discharged. For breach of any of these duties a master is liable to his servant who is injured thereby, but his liability extends no further.
Common employment
That his obligations to a servant are so much less than to a stranger is chiefly due to the doctrine of common employment. As a rule a master is responsible for the negligence of his servant acting in the course of his employment; but, from about the middle of the 19th century, it became firmly rooted in the law that this principle did not apply where the person injured was himself a servant of the master and engaged in a common employment with the servant guilty of the negligence. In effect this rule protects a master as against his servant from the consequences of negligence on the part of any other of his servants; to this there is no qualification except that, for the rule to apply, both the injured and the negligent servant must be acting in pursuance of a common employment. They must both be working for a common object though not necessarily upon the same work.
It is not easy to define precisely what constitutes a common employment in this sense, and there is peculiarly little judicial authority as to the limit at which work for the same employer ceases to be work in a common employment. It does not depend on difference in grade; all engaged in one business, from the manager to the apprentice, are within the rule. It does not depend on difference in work, if the work each is doing is part of one larger operation; all the servants of a railway company, whether employed on the trains, or at the stations, or on the line, are in a common employment. It does not necessarily depend on difference of locality; a servant who packs goods at the factory and a servant who unpacks them in the shop may well be in a common employment. On the other hand, it is not enough that the two servants are working for the same employer, if there is nothing in common between them except that they are making money for the same man; apart from special circumstances, the crews of two ships owned by the same company are probably not in common employment while navigating their respective ships. The test in each case must be derived from the view, invented by the courts, upon which the doctrine was based, namely, that the servant by entering upon the service consented to run all the risks incidental to it, including the risk of negligence on the part of fellow-servants; if the relation between the two servants is such that the safety of the one may, in the ordinary course of things, be affected by the negligence of the other, that negligence must be taken to be one of the risks of the employment assented to by the servant, and both are engaged in a common employment. In ninety-nine cases out of a hundred it will be found that the doctrine is applicable, and the master protected from liability. It is thus seen that, in general, no action will lie against a master at the suit of his servant, unless the servant can prove personal negligence on the part of the master causing injury to the servant. And in such action the master may avail himself of those defences which he has against a stranger. He may rely upon contributory negligence, and show that the servant was himself negligent, and that, notwithstanding the negligence of the master, the injury was proximately caused by the negligence of the servant. Or (except in cases where the injury results from a breach of a statutory duty) he may prove such facts as establish the defence expressed in the maxim, volenti non fit injuria; that is, he may prove that the injured servant knew and appreciated the particular risk he was running, and incurred it voluntarily with full understanding of its nature. Mere knowledge on the part of the servant, or even his continuing to work with knowledge, does not necessarily establish this defence; it must be knowledge of such a kind and in such circumstances that it can be inferred that the servant contracted to take the risk upon himself. The action at common law is subject to the general rule that personal actions die with the person; except so far as the remedy for money loss caused by death by negligence has been preserved in favour of a husband or wife and certain near relatives, under Lord Campbell's Act (Fatal Accidents Act 1846).
The act of 1880
Such was the law up to 1880. So long as industry was conducted on a small scale, and the master worked with his men, or was himself the manager, its hardship was perhaps little felt; his personal negligence could in many cases be established. But with the development of the factory system, and the ever-growing expansion of the scale on which all industries were conducted, it became increasingly difficult to bring home individual responsibility to the employer. As industry passed largely into the control of corporations, difficulty became almost impossibility. The employer was not liable to a servant for the negligence of a fellow-servant, and therefore, in most cases of injury, was not liable at all. It is not surprising that the condition of things thus brought about, partly by the growth of modern industry and partly by the decisions of the courts, caused grave dissatisfaction. The justice of the doctrine of common employment was vigorously called in question. In the result the Employers' Liability Act 1880 was passed. The effect of this act is to destroy the defence of common employment in certain specified cases. It does not abolish the doctrine altogether, nor, on the other hand, does it impose upon the master any new standard of duty which does not exist as regards strangers. All that it does is to place the servant, in certain cases, in the position of a stranger, making the master liable for the negligence of his servants notwithstanding the fact that they are in common employment with the servant injured. It is still necessary under the act, as at common law, to prove negligence, and the master may still rely upon the defences of contributory negligence and volenti non fit injuria. But under the act he cannot, as against the workmen who come within it and in the cases to which it applies, set up the defence that the negligence complained of was the negligence of a servant in a common employment. The act does not apply to all servants. It does not apply to domestic or menial servants, or to seamen, or to any except railway servants and "any person who, being a labourer, servant in husbandry, journeyman, artificer, handicraftsman, miner, or otherwise engaged in manual labour ... has entered into or works under a contract with an employer, whether the contract be oral or in writing, and be a contract of service or a contract personally to execute any work or labour." Whether a servant, not being one of those specially named, is within the act depends on whether manual labour is the real and substantial employment, or whether it is merely incidental thereto; thus a carman who handles the goods he carries may be within the act, but a tramcar driver or an omnibus conductor is not. The act does not make the master liable for the negligence of all his servants, but, speaking generally, only for the negligent discharge of their duties by such as are entrusted with the supervision of machinery and plant, or with superintendence, or the power of giving orders, with the addition, in the case of a railway, of the negligence of those who are given the charge or control of signals, points, locomotive engines or trains. The cases dealt with by the act are five in number; in the first and fourth the words are wide enough to include negligence of the employer himself, for which, as has been seen, he is liable at common law. In such instances the workman has an alternative remedy either at common law or under the act, but in all other respects the rights given by the act are new, being limitations upon the defence of common employment, and can be enforced only under the act.
The first case is where the injury is caused by reason of any defect in the condition of the ways, works, machinery or plant connected with or used in the business of the employer, provided that such defect arises from, or has not been discovered or remedied owing to the negligence of the employer, or of some person in the service of the employer and entrusted by him with the duty of seeing that the ways, works, machinery or plant are in proper condition. The second case is where the injury is caused by reason of the negligence of any person in the service of the employer who has any superintendence entrusted to him (that is, a person whose sole or principal duty is that of superintendence, and who is not ordinarily engaged in manual labour) whilst in the exercise of such superintendence. The third case is where the injury is caused by reason of the negligence of any person in the service of the employer to whose orders or directions the workman at the time of the injury is bound to conform and does conform, where such injury results from his so conforming. The fourth case is where the injury is caused by reason of the act or omission of any person in the service of the employer done or made in obedience to the rules or by-laws of the employer, or in obedience to particular instructions given by any person delegated with the authority of the employer in that behalf, provided that the injury results from some impropriety or defect in such rules, by-laws or instructions. The fifth case is where the injury is caused by reason of the negligence of any person in the service of the employer who has the charge or control of any signal, points, locomotive engine or train upon a railway.
In all these cases it is provided that the employer shall not be liable if it can be shown that the workman knew of the defect or negligence which caused his injury, and failed within a reasonable time to give, or cause to be given, information thereof to the employer or some person superior to himself in the service of the employer, unless he was aware that the employer or such superior already knew of the said defect or negligence. It was inevitable that these provisions should call for judicial interpretation, and a considerable body of authority has grown up about the act. Where general words are used, it must always occur that, between the cases which are obviously within and those which are obviously without the words, there are many on the border line. Thus, under the act, the courts have been called upon to determine the precise meaning of "way," "works," "machinery," "plant," and to say what is precisely meant by a "defect" in the condition of each of them. They have had to say what is included in "railway" and in "train," what is meant by having "charge" or "control," and to what extent one whose principal duty is superintendence may participate in manual labour without losing his character of superintendent, and what is the precise meaning of negligence in superintendence. These are only illustrations of many points of detail which, having called for judicial interpretation, will be found fully dealt with in the text-books on the subject. A workman who, being within the act, is injured by such negligence of a fellow-servant as is included in one or other of the five cases mentioned above, has against his employer the remedies which the act gives him. These are not necessarily the same as those which a stranger would have in the like circumstances; the amount of compensation is not left at large for a jury to determine, but is limited to an amount not exceeding such sum as may be found to be equivalent to the estimated earnings, during the three years preceding the injury, of a person in the same grade employed during those years in the like employment and in the district in which the workman is employed at the time of the injury. Moreover, the right to recover is hedged about with technicalities which are unknown at the common law; proceedings must be taken in the county court, within a strictly limited time, and are maintainable only if certain elaborate provisions as to notice of injury have been complied with. Where the injury causes death the action is maintainable for the benefit of the like persons as are entitled under Lord Campbell's act in an action at common law.
Acts of 1897 to 1906
The law continued in this condition up to 1897. In the majority of cases of injury to a servant, the doctrine of common employment still protected the master; and where, under the Employers' Liability Act, it failed to do so, the liability was of a limited character and often, owing to technicalities of procedure, difficult to enforce. Moreover, there is nothing in the act to prevent master and servant from entering into any special contract they please; and in many trades it became a common practice for contracts to be made wholly excluding the operation of the act. In 1893 an attempt was made to alter the law by a total abolition of the defence of common employment, so as to make a master as liable to a servant as to a stranger for the negligence of any of his servants acting in the course of their employment, and at the same time to prohibit any agreements to forego the rights so given to the servant. The bill did not become law, and no further change was made until, in 1897, parliament took the first step in what has been a complete revolution in the law of employers' liability. Up to that year, as has been seen, the foundation of a master's liability was negligence, either of the master himself, or, in certain cases, of his servants. But by the Workmen's Compensation Act 1897, a new principle was introduced, whereby certain servants in certain employments were given a right to compensation for injuries, wholly irrespective of any consideration of negligence or contributory negligence. As regards such servants in such employments the master was in effect made an insurer against accidental injuries. The act was confessedly tentative and partial; it dealt only with selected industries, and even within these industries was not of universal application. But where it did apply, it gave a right to a limited compensation in every case of injury by accident arising out of and in the course of the employment, whether that accident had been brought about by negligence or not, and whether the injured servant had or had not contributed to it by his own negligence.
The act applied only to employment on, or in, or about certain localities where, at the same time, the employer was what the act called an "undertaker," that is, the person whose business was there being carried on. If we wanted to know whether a workman was within the act, we had to ask, first, was he employed on, or in, or about a railway, or a factory, or a mine, or a quarry, or an engineering shop, or a building of the kind mentioned in the act; secondly, was he employed by one who was, in relation to that railway, etc., the undertaker as defined by the act; and thirdly, was he at the time of the accident at work on, or in, or about that railway, etc. Unless these three conditions were fulfilled the employment was not within the act.
The employments to which the act applied comprised railways, factories (which included docks, warehouses and steam laundries), mines, engineering works and most kinds of buildings. "Workman" included every person engaged in an employment to which the act applied, whether by manual labour or otherwise, and whether his agreement was one of service or apprenticeship or otherwise, expressed or implied, oral or in writing.
By the Workmen's Compensation Act 1900, the benefits of the act of 1897 were extended to agricultural labourers.
The Workmen's Compensation Act 1906 (which came into force on the 1st of July 1907) extended the right of compensation for injuries practically to all persons in service, and also introduced many provisions not contained in the acts of 1897 and 1900 (repealed). It does not apply to persons in the naval or military service of the crown (s. 9), or persons employed otherwise than by way of manual labour whose remuneration exceeds two hundred and fifty pounds a year, or persons whose employment is of a casual nature, and who are employed otherwise than for the purposes of the employer's trade or business, or members of a police force, or out-workers, or members of the employer's family dwelling in his house. But it expressly applies to seamen.
Conditions of claim
To entitle a workman engaged in an employment to which the act applies to compensation all the following conditions must be fulfilled: (1) There must be personal injury by accident. This will exclude injury wilfully inflicted, unless the injury results in death or serious and permanent disablement, but the act introduces a new provision by making the suspension or disablement from work or death caused by certain industrial diseases "accidents" within the meaning of the act. The industrial diseases specified in the 3rd schedule of the act were anthrax, ankylostomiasis, and lead, mercury, phosphorus and arsenic poisoning or their sequelae. But § 8 of the act authorized the secretary of state to make orders from time to time including other industrial diseases, and such orders have embraced glass workers' cataract, telegraphists' cramp, eczematous ulceration of the skin produced by dust or liquid, ulceration of the mucous membrane of the nose or mouth produced by dust, etc. To render the employer liable the workman must either obtain a certificate of disablement or be suspended or die by reason of the disease. If the disease has been contracted by a gradual process, all the employers who have employed the workman during the previous twelve months in the employment to which the disease was due are liable to contribute a share of the compensation to the employer primarily liable. (2) The accident must arise out of and in the course of the employment. In each case it will have to be determined whether the workman was at the time of the accident in the course of his employment, and whether the accident arose out of the employment. It will have to be considered when and where the particular employment began and ended. Other difficulties have arisen and will frequently arise when the workman at the time of the accident is doing something which is no part of the work he is employed to do. So far as the decisions have gone, they indicate that if what the workman is doing is no act of service, but merely for his own pleasure, or if he is improperly meddling with that which is no part of his work, the accident does not arise out of and in the course of his employment; but if, while on his master's work, he upon an emergency acts in his master's interest, though what he does is no part of the work he is employed to do, the accident does arise out of and in the course of his employment. (3) The injury must be such as disables the workman for a period of at least one week from earning full wages at the work at which he was employed. (4) Notice of the accident must be given as soon as practicable after the happening thereof, and before the workman has voluntarily left the employment in which he was injured; and the claim for compensation (by which is meant notice that he claims compensation under the act addressed by the workman to the employer) must be made within six months from the occurrence of the accident or, in case of death, from the time of death. Want of notice of the accident or defects in it are not to be a bar to proceedings, if occasioned by mistake or other reasonable cause, and the employer is not prejudiced thereby. But want of notice of a claim for compensation is a bar to proceedings, unless the employer by his conduct has estopped himself from relying upon it. (5) An injured workman must, if so required by the employer, submit himself to medical examination.
When these conditions are fulfilled, an employer who is within the act has no answer unless he can prove that the injury arose from the serious and wilful misconduct of the workman. The precise effect of these terms is not clear; but mere negligence is not within them.
Where the injury causes death, the right to compensation belongs to the workman's "dependents"; that is, such of the members of the workman's family as were at the time of the death wholly or in part dependent upon the earnings of the workman for their maintenance. "Members of a family" means wife or husband, father, mother, grandfather, grandmother, step-father, step-mother, son, daughter, grandson, granddaughter, step-son, step-daughter, brother, sister, half-brother, half-sister. The act of 1906 makes also a very remarkable departure in including illegitimate relations in the direct line among "dependents," for where a workman, being the parent or grandparent of an illegitimate child, leaves such a child dependent upon his earnings, or, being an illegitimate child, leaves a parent or grandparent so dependent upon his earnings, such child or parent is to be included in the "members of a family."
Amount
Under the act compensation is for loss of wages only, and is, as has been said, based upon the actual previous earnings of the injured workman in the employment of the employers for whom he is working at the time of the injury. In case of death, if the workman leaves dependents who were wholly dependent on his earnings, the amount recovered is a sum equal to his earnings in the employment of the same employer during the three years next preceding the injury, or the sum of £150, whichever is the larger, but not exceeding £300; if the period of his employment by the same employer has been less than three years, then the amount of his earnings during the three years is to be deemed to be 156 times his average weekly earnings during the period of his actual employment under the said employer. If the workman leaves only dependents who were not wholly dependent, the amount recovered is such sum as may be reasonable and proportionate to the injury to them, but not exceeding the amount payable in the previous case. If the workman leaves no dependents, the amount recoverable is the reasonable expenses of his medical attendance and burial, not exceeding £10. In case of total or partial incapacity for work resulting from the injury, what is recovered is a weekly payment during the incapacity after the second week not exceeding 50% of the workman's average weekly earnings during the previous twelve months, if he has been so long employed, but if not, then for any less period during which he has been in the continuous employment of the same employer; such weekly payment is not to exceed £1 - and in fixing it regard is to be had to the difference between the amount of his average weekly earnings before the accident and the average amount which he is able to earn after the accident. Any payments, not being wages, made by the employer in respect of the injury must also be taken into account. The weekly payment may from time to time be reviewed at the request of either party, upon evidence of a change in the circumstances since the award was made, and after six months may be redeemed by the employer by payment of a lump sum. A workman is within the act although at the time of the injury he has been in the employment for less than two weeks, and although there are no actual earnings from the same employer upon which a weekly average can be computed. But how are the average weekly earnings which he would have earned from the same employer to be estimated? The question must be determined as one of fact by reference to all the circumstances of the particular case. Suppose the workman to be engaged at six shillings a day and injured on the first day. If it can be inferred that he would have remained in such employment for a whole week, his average weekly earnings from the same employer may be taken at thirty shillings. If it can be inferred that he would have worked one day and no more, his average weekly earnings from the same employer may be taken at six shillings.
All questions as to liability or otherwise under the act, if not settled by agreement, are referred to arbitration in accordance with a scheme prescribed by the act. Contracting out is not permitted, save in one event: where a scheme of compensation, benefit or insurance for the workmen of an employer has been certified by the Registrar of Friendly Societies to be not less favourable to the workmen and their dependents than the provisions of the act, and that where the scheme provides for contributions by the workmen, it confers benefits at least equal to those contributions, in addition to the benefits to which the workmen would have been entitled under the act, and that a majority (to be ascertained by ballot) of the workmen to whom the scheme is applicable are in favour of it, the employer may contract with any of his workmen that the provisions of the scheme shall be substituted for the act; such certificate may not be for more than five years, and may in certain circumstances be revoked. The act does not touch the workman's rights at common law or under the Employers' Liability Act, but the workman, if more than one remedy is open to him, can enforce only one. When the circumstances create a legal liability in some other person, e.g. where the injury is caused by the negligence of a sub-contractor or of a stranger, in such cases the employer, if required to pay compensation under the act, is entitled to be indemnified by such other person.
Under the Factory Acts, offences, when they result in death or bodily injury to health, may be punished by fine not exceeding £100, and the whole or any part of such fine may be applied for the benefit of the injured person or his family, or otherwise as the secretary of state determines. Similar provisions occur in the Mines Acts. Any sum so applied must be taken into account in estimating compensation under the Employers' Liability and Workmen's Compensation Acts.
Law in Other Countries. - In Germany (q.v.) there is a system of compulsory state insurance against accidents to workmen. The law dates from 1884, being amended from time to time (1885, 1886, 1887, 1900, 1903) to embrace different classes of employment. Occupations are grouped into (1) industry; (2) agriculture; (3) building; (4) marine, to all of which one general law, with variations necessary to the particular occupation in question, is applicable. There are also special provisions for prisoners and government officials. Practically every kind of working-man is thus included, with the exception of domestic servants and artisans or labourers working on their own account. All workmen and officials whose salary does not exceed £150 a year come within the law. No compensation is payable where an accident is caused through a person's own gross carelessness, and where an accident has been contributed to by a criminal act or intentional wrongdoing the compensation may be refused or only partially allowed. With these exceptions, compensation for injury is payable in case of injury so long as the injured is unfit to work; in case of total incapacity an allowance is made equal to two-thirds of the injured person's annual earnings, in case of partial incapacity, in proportion to the degree that his wage-earning capacity has been affected. In case of death the compensation is either burial money or an allowance to the family varying in amount from 20 to 60% of the annual earnings according to circumstances. The provision of compensation for accidents falls entirely upon employers, and in order to lighten the burden thus falling upon them, and at the same time to guard against the possible insolvency of an individual employer, associations or self-administering bodies of employers have been formed - usually all the employers of each particular branch of industry in a district. These associations fix the amount of compensation after each accident, and at the end of the year assess the amount upon the individual employers. There is an appeal from the association to an arbitration court, and in particularly complicated cases there may be a further appeal to the imperial insurance department. No allowance is paid until after the lapse of thirteen weeks from the accident, and in the meantime the injured person is supported from a sick fund to which the employers contribute one-third, the employee contributing two-thirds. In Germany quite twelve millions of workpeople are insured; in 1905 a sum of nearly eight millions sterling was paid for accidents, and a million and a half to the families of those killed in accidents.
In Austria the compulsory insurance of workmen was provided for by a law of 1887, with subsequent amendments. Briefly, nearly every class of industrial worker is included under the Austrian law, which is administered by special territorial insurance institutions, each of them embracing particular classes of industries or workers. The institutions are managed by committees, one-third of the members of each committee being chosen by the minister of the interior, one-third by the employers and one-third by the workers. Compensation is payable, in case of accidents, on a scale proportionate to the injured person's wages during the preceding year. In case of death, a certain sum is paid for funeral expenses, an annuity to the widow, if one is left, equal to 20% of the deceased's annual wages - if the widow remarries, she receives a lump sum equal to three annual payments in liquidation of the annuity - an annuity to each legitimate child equal to 15%, or, if the child has no mother, equal to 20% of the father's wages; an annuity to the father or mother, if dependent on the deceased for support, equal to 20% of the annual wages. As in the English act of 1906 illegitimate children are recognized by being granted an annuity in the case of the death of a father equal to 10% of his wages. In no case can the total amount of the annuities exceed 50% of the deceased's annual wages. Where the accident has resulted in total incapacity, the workman receives an annuity equal to 60% of his wages. No allowance is paid until after the fourth week, during which time the injured is supported by the sick-insurance institutions. The provision for the system is raised by contributions to the extent of nine-tenths by the employers and one-tenth by the workers, deducted from their wages. Instead of the German method by which an annual payment equal to the amount disbursed is required from each employer, he is required to provide the full amount necessary for the complete payment of the pension, this amount being placed to the credit of a special insurance fund.
In France a system of compulsory state insurance against accidents was created by a law of 1898. The principal feature in the French law is the attempt to meet the possible insolvency of the employer by the establishment of a special guarantee fund, created by a small addition to the "business tax" (contribution des patentes), and, in the case of the mining industry, by a small tax on mines.
Norway, by a law of 1894, amended in 1897 and 1899, adopted a system of compulsory insurance modelled to a great extent on the German system. Instead, however, of a trade association as in Germany, or a district insurance association as in Austria, there is a government insurance office, in which employers have to insure their workmen.
In Denmark a law was passed in 1897 rendering employers personally liable for the amount of compensation for accidents, but employers may relieve themselves of this liability by insuring workmen in an assurance association approved of by the minister of the interior. This course, however, is discretionary with employers.
In Italy, although many attempts were made between 1889 and 1898 to introduce a system of compulsory insurance, it was not until the latter year that the principle was adopted. There is a National Bank for the Insurance of Working men against Accident (Cassa Nazionale di Assicurazione per gli infortuni degli operaji sul lavoro), created under a law of 1883. It has special privileges, such as exemption from taxation and the employment of the branch offices of the state post-office savings bank as local offices. Under the law of 1898 there is a primary obligation on the employer to insure his workmen with the National Bank, but he may, if he prefers, insure with other societies approved by government. Employers employing about five hundred workmen may, instead of insuring, establish a fund for the payment of not less than the statutory compensation, subject to giving adequate security for the sufficiency of the fund. Exemption from compulsory insurance is granted to employers who have established a mutual insurance association, which must comply with certain prescribed conditions. Railway companies, also, are exempt, if they have relief funds which conform with the provisions of the act.
In Spain an act of the 30th of January 1900, adopted the principle of the personal responsibility of the employer for accidents to workmen other than those due to vis major. The act also lays down regulations for preventing accidents in dangerous trades, and releases the employer from personal liability on effecting adequate insurance of his workmen with an approved insurance company.
Holland has adopted the principle of compulsory insurance by a law of the 2nd of January 1901. An employer has to pay the necessary premium to the State Insurance Office, or by depositing adequate security with the State Office he may undertake the payment of the prescribed compensation himself. Or he may transfer his liability to an insurance company, provided the company deposit adequate security with the State Office. The State Insurance Office is under the management of directors appointed by the crown, and decides on all questions as to compensation; there is also a "Supervisory Board" of the State Office with joint representation of employers and workmen. There is an appeal from the State Office to Councils of Appeal, and from them to a National Board of Appeal.
Greece has a law of the 21st of February 1901, providing for compensation for accidents causing incapacity of more than four days' duration to workmen in mines, quarries and smelting works. The employer is exclusively liable for such compensation and for medical expenses during the first three months; after that time he is liable for one-half, the other half being borne by a miners' provident fund, supported by certain taxes on the properties affected, fines, etc.
By a law of the 5th of July 1901, Sweden adopted the principle of the personal liability of the employer for industrial accidents. The employer can, however, insure himself against liability in the Royal Insurance Institute. Compensation becomes payable after the expiration of sixty days from the date of the accident.
Russia has a law which came into force on the 1st of January 1904. Under this law employers in certain specified industries are bound to indemnify workers for incapacity of more than three days' duration due to injury arising out of their work. Employers are exempt from liability by insuring their workmen in insurance companies whose terms are not less favourable than those laid down by the law.
Belgium passed a law dealing with industrial accidents on the 24th of December 1903. It adopts the principle of the personal liability of the employer in certain specified trades or industries. There is a power of extension to such other undertakings as may be declared dangerous by the Commission on Labour Accidents. Employers may exempt themselves from their liability by contracting for the payment of compensation by an insurance company approved by the government or by the National Savings and Pension Fund. Where an employer does not so contract, he must (with certain exemptions) contribute to a special insurance fund. The law of 1903 also established a permanent Commission on Labour Accidents.
Switzerland in 1899 adopted a law providing for accident insurance, but it was defeated on referendum in May 1900.
In the United States the law mainly depends on the doctrine of common employment, and the extent to which this doctrine is applied varies considerably in the different states, more particularly as to who are and who are not to be regarded as fellow-servants. The tendency, however, has been to increase the liability of the employer for the negligence of a fellow-servant, and in the case of employment on railways many states have passed laws either modifying or abrogating the doctrine. Colorado, by a law of 1901, has entirely abrogated it; and Alabama, Massachusetts and New York have laws generally similar to the English act of 1880. But the greatest departure, due to the initiative of President Roosevelt, has been the passing by the Federal Congress of the laws of April 22 and May 30, 1908, one giving damages to injured employees of interstate carriers by railroad, and common carriers by railroad in Territories, the District of Columbia, the Canal Zone and other territory governed by Congress, and the other giving regular wages for not more than one year to injured employees of the U.S. government in arsenals, navy yards, construction work on rivers, harbours and fortifications, hazardous work in connexion with the Panama Canal or Reclamation Service, and in government manufacturing establishments. These national laws, which were intended to serve as an example to the states, specifically provided for employers' liability and for the non-recognition of the doctrine of common employment.
British Colonies
Most of the British colonial states have adopted the principle of the English Workmen's Compensation Act of 1897, and the various colonial acts are closely modelled on the English act, with more or less important variations in detail. The New Zealand Act was passed in 1900, and amended in 1901, 1902, 1903 and 1905. The act of 1905 (No. 50) fixes the minimum compensation for total or partial disablement at £1 a week when the worker's previous remuneration was not less than 30s. a week. South Australia passed a Workmen's Compensation Act in 1900 and Western Australia one in 1902. New South Wales passed one in 1905, and British Columbia in 1902.
[1] "Employ" comes through Fr. from Lat. implicare, to enfold, Late Lat. to direct upon something.
Note - this article incorporates content from Encyclopaedia Britannica, Eleventh Edition, (1910-1911)
