Scotland in the nineteenth century

10. Labour

Section 10.3: Employers' liability

"to inquire whether it may be expedient to render masters liable for injuries occasioned to their servants by the negligent acts of certificated managers of collieries, managers, foremen and others to whom the general control and superintendence of workshops and works is committed, and whether the term 'common employment' could be defined by legislative enactment more clearly than it at present stands."

Decisions in the Scottish courts were at variance with those in the English courts. Scots law affirmed the principle of liability of the owner under different circumstances and repudiated the doctrine of "common employment"; see the evidence of Courtney Peregrine Ilbert, barrister (paras 296, 313, and 393). "Common employment" was the term used when the person supervising a workman who had an accident was simply a fellow worker, and the employer was, therefore, seen as having no liability for the injury. If the supervisor, however, could be fairly held to be the agent or representative of the employer, the latter could be held liable.

For examples of Scottish courts having made exceptions from the doctrine of common employment, see the evidence of Joseph Brown, Q.C. (paras. 546-554).

The Select Committee continued the inquiry that had been initiated in the report on this subject compiled in 1876.

[page 212]

Para. 8, p. iv, drew attention to the fact that... "a series of decisions by the Scotch Judges denied that the decisions of the English Courts were consonant with the Law of Scotland. In this condition of the authorities, an appeal was presented to the House of Lords in 1856, in the course of which the Law Lords affirmed that the law was identical for England and Scotland."

The Committee decided that there was no case for an alteration in the law relating to the liability of employers for injuries to their workmen except when the employer had omitted to provide the proper materials for the job, had been negligent in the choice of persons to whom he entrusted the supply of materials, or had shown want of care in the selection of servants.

Evidence was obtained from the secretaries of two Scottish miners' unions: Henry Cook, Secretary for the Fife and Clackmannan miners union (pp. 15-19) and John Gillespie, Secretary for the Association of Miners for Stirling and Linlithgowshire (pp. 129-130). Both men believed that the employer should be responsible for compensating injured workers unless negligence could be proved on the workers' part.

"ordered that the Employers' Liability Act (1880) Amendment Bill be read a second time, and committed to a Select Committee; that it be an instruction to the Committee that they have power to inquire into the operation of the Employers' Liability Act, 1880.

The Committee examined employers and workmen engaged in leading industries, shipowners, seamen and legal witnesses. Many witnesses complained that the Employers' Liability Act had provoked much litigation and imposed heavy charges on employers, but the Committee thought these complaints were unfounded. They said the Act had stimulated the establishment of provident funds and associations and recommended that it should be renewed and made permanent. They thought it desirable, however, that employers should contribute to insurance funds to insure their workmen against accidents. The Committee recommended that the maximum limit of compensation for injury should be fixed at £150 rather than the equivalent of three years' wages. In Scotland, parties should have the option of trial by jury as existed in England. They thought the term "workmen" should be extended to include seamen and all those working under contract, including those working on buses and tramways. The benefits of the Act should also be extended to seamen in cases of accidents occurring in home ports. Otherwise the Act should only cover those accidents at sea, caused by defective equipment.

In Scotland, workers could claim compensation for injuries under common law as well as under the Employers' Liability Act, 1880, and larger sums could often be obtained in this way. The workman in Scotland was, therefore, in a much more advantageous position than his counterpart in England. He could obtain legal advice at no cost to himself as the expenses could be paid out of the rates. Some witnesses argued that this encouraged litigation in Scotland. According to Scottish law, employers had been liable for the actions of fellow workmen. An assurance association was established in 1852 whose chief object was to assimilate the law of Scotland to the law of England in this respect.