§ Order for Second Reading read.
§ 11.7 a.m.
§ Mr. MAINWARING
I beg to move, "That the Bill be now read a Second time."
The Bill seeks to amend the law in respect of the liability of employers for injuries to their workmen caused by the negligence of fellow-workmen. We seek to attach responsibility for injuries caused to workmen by the negligence of other workmen directly to the employer or employers. It might seem strange that it is still necessary to make this alteration of the law of this country, but as the law stands an employer is liable for wrongful or negligent acts committed by any of his employés so far as the results of the accident affect any member of the general public. Where the person injured is not a member of the general public but a fellow-servant of the person to whose negligence the accident is deemed to be due, in that case the employer is in no way held responsible or liable for the results of the accident. Exceptions have, of course, been made during the years in regard to that position by the Employers Liability Act. 1880, and the Compensation Acts, beginning with the Compensation Act, 1897. Generally one may say that in normal circumstances employers are held responsible for accidents caused to persons other than their own employés where the accident is due to negligence.
The Bill seeks to remove what is an anomaly in the Law. The doctrine of common employment, which we seek to remove, has been in existence in this country for practically a century. Next year will be the centenary of this particular doctrine, and during the whole of that time it has met with considerable criticism. Eminent lawyers have held that it is unjust, as it applies to a limited section upon which it operates adversely. This is the only country among the great industrial nations of the world in which such a law is in operation. The Employers Liability Act, 1880, made some inroads into the unjust operations of this 776 doctrine of common employment. It removed, to a certain extent, some difficulties which people felt under this doctrine, but the evil remains so far as the common employment of workmen is concerned. Other difficulties have also been met by the introduction of the Workmen's Compensation Act, which extended the liability of employers to persons in their service, but again to a limited degree. I do not wish to minimise the importance of the modifications and extensions which have been been made by the Compensation Acts, but the evil still remains.
These Acts, the Workmen's Compensation Acts and the Employers Liability Acts, were obviously passed in favour of the workmen; they are intended to make the position of workmen more favourable than it had been previously, but, as I have stated, there remains this anomaly which still operates lo a much greater degree than could have been foreseen by this House, or by any court of law. I doubt very much whether anyone could have correctly estimated the extent to which the evil exists. Under the Employers Liability Act a workman is entitled to hold his employer and some of his fellow-workmen responsible, but only some. The effect of that Act has been to set aside altogether the contractual relations of service and to remove the necessity of a workman taking any and every risk of his employment on his own shoulders, as had been the case before.
In the law as it governs the right of persons in employment there is this difference between the Workmen's Compensation Act and other laws, that the Compensation Acts lay it down that an employé suffering injury arising out of and in the course of his employment is entitled to recover damages to a certain limited extent, whereas if that workman attempts to seek damages for compensation on other lines, it becomes necessary for him to prove knowledgeable negligence on the part of his employer or someone responsible, assuming that negligence was the cause of the accident. There is a difficulty of proceeding on this line, which is operating adversely in numerous cases of accidents in many industries. The Act of 1880 introduced a change to the extent of declaring the responsibility of the employer for his own acts of negligence and those of certain superior officials and agents, but it leaves the workman still liable to carry 777 whatever risks are involved so far as the negligence may be attributable to any of his fellow-workmen. It follows, therefore, that in any claim for damages resulting from an accident and injury within the relation of employer and employé, it is sufficient for the employer to rid himself of any responsibility by being able to show that there was no negligence on his part. Perhaps the correct way to state that in terms of law is to say that responsibility rests upon the workman to demonstrate and prove that his employer in fact was negligent. It is not the case that the employer has to prove that he was not negligent, but that the worker must demonstrate beyond doubt that the negligence was on the part of his employer or a responsible agent acting for that employer.
Consequently, there is in this anomaly immediately, and there is an injustice to the employé. It amounts to this, that an employer is deemed to be responsible for injuries caused in any circumstances by one of his employés to anybody other than his own servants, but if the accident results in injuries to anyone in common ser- vice n that undertaking, among his own servants or employés, then the employer is not responsible. It must appear strange that this dual position in law should continue to exist in this country. Why should not a person said to be in common employment receive similar protection in law as that which is accorded to a person who is not within that same employment? Innumerable instances could be adduced by every Member of this House to demonstrate how unfairly such a position must operate. Indeed, I suggest that all too frequently cases arise where, if the law were other than it is, no such accident would possibly arise, because wider protective measures would be in operation in most of our industries.
Some hon. Members may think I am putting this rather too high, but I will ask them to accept it at least as arising out of my personal experience. Indeed, I think many hon. Members sitting on these benches beside me will have had the same experience, that in industry, almost without exception, there are conditions involving grave risk to life and limb which, were it possible to attach the element of neglect on the part of the employer to those conditions, would long ago have been removed. Risks are undertaken in industry precisely because of the fact that 778 the employer can avoid his responsibilities by the plea to which I have referred.
It may be argued that the development of the Compensation Acts has, to a very large degree, practically removed every injustice involved in this matter, but that is far from being the case. Those Acts certainly have gone a considerable way in the right direction, but there is a good deal of leeway to be made up. The very fact that the small portion which we are seeking to remove remains in our law, constitutes a grave injustice to the injured persons, and, as I have already indicated, it contributes to the maintenance of dangerous conditions in industry and to the maintenance of inadequate safety precautions which, were the law other than it is, would certainly not exist. Why should the victim of an accident be precluded from claiming the same amount of damages from his employer as would some other person involved in the same accident? Why should a railway servant involved in a train accident not be entitled in law to claim the same damage as a passenger on that train? The same applies to omnibus conductors and seamen, and one could give instances of a similar nature in one industry after another, in one occupation after another. Why, when two men are victims of the same accident, one of whom is in common employment and the other a person to whose negligence the accident is due, should the one be placed in a different position from the other when it comes to claiming damage for the loss entailed? Can it even be seriously argued that an employer ought not to be held responsible both as to persons in his employment and those not in his employment? From the standpoint of the employer or the employé, the risk of negligence of those in common employment with him is as much a risk as any other factor in industry.
I come from what is generally regarded as the most hazardous industry in the country—mining. Is not the risk of some negligent act on the part of a fellow miner just as grave a risk as that of the natural conditions in the mine, and why should a miner not receive the same protection against negligence as would some member of the public? This latter point, risk arising from the negligent act of fellow employés, is conceded so far as the Compensation Acts are concerned. If a man is injured because of the negligent act of a fellow employé, he may 779 proceed to claim such benefits as are due or as he may be able to claim from the Compensation Acts, despite the fact that the accident is the result of the negligent act of a fellow servant. Why should there not be the same protection under the general law as would be accorded to persons other than those in common employment? Whatever arguments may be adduced in this matter, it must be realised that the old-time individual employer is practically non-existent to-day. We are essentially in advance of that old doctrine of common employment. The average workman in industry to-day knows no employer. The only persons with whom he ever comes in contact are salaried officials of some description or other.
On past occasions examples of how unfairly this principle operates have been brought before the House, and those examples have come from industries and occupations of a very varied character. As the law is to-day, the workman is left in a most unfortunate position if, having been involved in an accident, he fails to prove direct and knowledgable negligence on the part of his employer. In this connection, I would remind the House of a case quoted just over a week ago of an unfortunate lad who lost two hands. But how fortunate it was for him that in the Court the judge held that, in fact, the employer was knowledgably negligent in installing the machine in question. The lad received £10,000 damages, but if he had been unable to prove, or if the judge had failed to accept the argument, that the employer was negligent in installing the machine, all the lad would have had would have been a certain amount of compensation for the rest of his life. He would have had to remain a pauperised individual for the rest of his life.
I could instance many cases of a similar character from the mining industry. I have in mind the case of a young man who fell into a sheave at the colliery at which I was myself employed and lost his two arms. No knowledge of negligence on the part of the employer could be proved. That there was negligence on the part of a fellow-employé is perfectly true. The sheave was left unprotected; otherwise this poor fellow would not have met with the accident. But it was impossible to demonstrate knowledgeable 780 neglect against the employer. Instances of that kind could be multiplied. They are known to every Member who comes from an industrial district. In such cases the employer escapes the three-fold responsibility—loss of wares, expenses incurred and reasonable damages in respect of loss of limbs, pain and so forth. Everyone who has had anything to do with the Compensation Acts knows that a workman, in any sort of service, can lose limbs, can lose at least one of his eyes, but as long as there remains with him thereafter a sufficient capacity to serve, there is no compensation for loss of limbs as such. The only thing considered is whether that man has still a capacity to earn wages. Only to the degree of his loss of capacity to earn wages, is the question of compensation considered.
There is another point as to the difference between compensation and damages at Common Law. In the case to which I have just referred, the sum of £10,000 will be handed over to the young man concerned. But if that same young man had been compelled to proceed under compensation law and had been awarded 15s. or 20s. a week compensation, the payment of that weekly sum would cease upon his death. In the other case, the £10,000 would, as I say, be handed over to him and even if he died within 12 months that sum would remain with his family. The method of paying compensation at so much per week is very kind to the employer but compensation never was and never will be—in the terms of the Workmen's Compensation Acts—commensurable with loss of wages or loss of limbs or any other loss that these poor unfortunate men may suffer.
It is important to keep in mind the difficulty of proceeding under this law and to appreciate why men are generally compelled to rely on the Compensation Acts in these cases. There is always the difficulty of relating the negligence through which an accident has been caused, directly to the employer or his responsible agent. The number of cases entered in court gives little indication of the number that might be entered were the position clarified. The present state of the law in regard to compensation of workmen in cases of pure accident is the best reason for permitting workmen to go outside the Compensation Acts where 781 real negligence enters into a case. Why is it that in a case of pure accident the workman is safeguarded and why is it that in a case of serious neglect—neglect of a kind which may already have involved the deaths of a number of the man's fellow-workmen—the law is not applicable to the injured workman as it is to the general public.
There is another factor which has sometimes to be considered and that is lack of resources on the part of the employer. I know that this matter considered from certain aspects, may be regarded as being outside the purpose of the Bill, but it has relation to it. An employer insures his workmen against certain defined risks, but those do not include risks of common employment. There is no need today for the employer to insure the workmen against risks of common employment. The fear does not enter the employer's mind that the workman may claim damages from him in that respect. But I have had occasion more than once to consider this point in connection with mining disasters. In my own experience, there have been cases in which we have known that negligence could be attached to the employer, but, knowing also that the employer was not insured against that risk, and knowing the resources of the employer to be inadequate to cover the sums which we might claim on behalf of a large body of victims, we have had to turn aside from the possibility of proceeding in law on those lines.
If we made the risk of common employment a responsibility and liability upon the employer, the employer would then have to insure against that as well as against the other risks. Indeed, the Government have within the last year accepted the principle of responsibility in so far as they impose, compulsorily, upon bodies of employers the responsibility of insuring workmen against certain forms of risk. This particular risk, however, is excluded. I could mention the mining disasters which I have in mind but I have no need to do so, and it would only harrow the feelings of the surviving victims. But I am sure that the House will accept from me the statement that on more than one occasion we have had to consider whether we could, with justice to the men concerned, proceed on those lines, knowing that the resources of the company involved would not be sufficient to cover the claims and that 782 to have obtained a verdict in court would possibly have left our people worse off than they would be if we proceeded under the Compensation Acts, as we eventually did. The risks of neglect and of common employment ought to be included among those for which the employer is responsible and the present position under the law of the country cannot be justified. For all these reasons, and having regard to the many cases of hardship involved, I ask the House to give the Bill a Second Reading.
§ 11.35 a.m.
§ Mr. A. HENDERSON
I beg to second the Motion.
May I first tender my congratulations to the new Attorney-General, whom we are glad to see in his place to-day? We hope that he will signify his accession to his great office by extending his blessing to the Bill now before the House. The learned Attorney-General will remember that this very same Bill was introduced just over two years ago by the very distinguished lawyer Sir W. Greaves-Lord, who was then the Member for Norwood, who to-day is one of His Majesty's High Court Judges, and who put the case for this Bill in a very clear and even a very powerful speech. In approaching this question of common employment, I think the House should remember the Common Law aspect of it. The House knows that the Common Law of this country, as distinct from Statute Law, is that body of customs which has been embodied in judicial decisions extending back. to the 11th and 12th centuries, and until the middle of the last century it was a fundamental rule of Common Law that an employer wan responsible for any injury caused by the negligence of himself, his servant or agent.
That was the position until 1837, and I think the reason why the question we are now discussing never arose until that date is perhaps that this country was, prior to the industrial revolution, more. or less an agricultural community, with at any rate very little machinery in operation, and it was not until the industrial revolution had taken place, leading to the establishment and use of machinery on a very extensive scale, that the question arose which we are discussing to-day. The case of Priestley v. Fowler, which is well known to those 783 who have to study the laws of this country, was a very simple case, of a butcher's assistant who was injured as a result of the overloading of a cart, that overloading being due to the negligence of a fellow servant. The court laid it down in that case that the injured workman had no claim against his employer because his injuries were caused as a result of the negligence of his fellow employé, and the common employer was not to be held responsible for that negligence. That was and is considered by many lawyers to be bad law, and I should like to quote the view of a very distinguished lawyer, Sir Frederick Pollock, who, I am sure the learned Attorney-General will agree with me, is entitled to very great respect from any lawyer. He expressed his view on this question as follows:I think the doctrine of the American and English courts"—My hon. Friend who moved this Motion will perhaps forgive me for saying that he was not quite right in what he said. The American courts, which to a great extent follow the Common Law of this country, have been common sinners with the courts in this country—for it is American quite as much as it is English, is bad law as well as bad policy. The correct course, in my judgment, would have been to hold that the rule expressed by the maxim Respondeat superior "—which is the Latin way of saying what I have just said to the House, that the employer shall be responsible for the acts of his agents—whatever its origin of reason, was general. No such doctrine as that of common employment has found place in the law courts of France or of the German States.So that the doctrine of common employment is practically confined to the two great English-speaking communities. But whether it is good law or bad law, it founded the distinction, which has since been followed, that the liability of the employer towards his own employé was different from that of his liability to a stranger who was not under any contractual relation to the employer. The explanation, as I understand it, has been this: At any rate, the view of the lawyers is that when a person enters into contractual relations with another person, his employer, it is implied that he takes upon himself the risk that his fellow 784 workmen may be guilty of acts of negligence, and in that case he will not look to his employer for any redress. That is the view, that it is an implied risk in the contract of employment that he should not look to his employer for redress. That may have been clear to lawyers, but, so far as I have been able to understand, it has never been clear to the workmen of this country, who have always regarded the distinction as an intolerable example of class legislation and who have always wanted to know why it is Oat the passerby who may be injured by something dropping on him from above, out of a window, for example, should be in a better position than the workman himself so far as the Common Law is concerned.
The position following the case of Priestley v. Fowler in 1837—and incidentally I think this is ant thee reason why the learned Attorney-General should see to it that we celebrate the centenary of that case by abolishing its consequences—was that there was a considerable agitation in this country in trade union circles. Workmen felt very strongly about it, and a good many lawyers sympathised with them. Eventually, as the Mover of the Motion has said, we had the passing of the Employers' Liability Act in 1880. The House should remember that that Act did not by any means completely abolish the doctrine of common employment. It certainly made important inroads into the doctrine, but those inroads were limited. It provided that the employer was to be responsible for injuries caused to his workmen in three cases—first, where the injury was caused by defective machinery or plant provided by the employer; secondly, where the employé was injured as a result of carrying out the orders of the manager, superintendent, or foreman placed over him by the employer; and, thirdly, where the workman was injured as a result of carrying out or observing an improper rule or order applicable in the factory or workshop. The third provision, as the learned Attorney-General knows, is not of great practical importance to-day, as a result of the passing of the Factory and Workshop Acts. Special provision was made for railway employés, and it was provided that any railwayman injured as a result of carelessness on the part of a fellow workman in charge of a railway engine, point, or 785 signal should be entitled to claim against his employer. Those were the classes of workmen who were entitled to come within the Protection of the Employers' Liability Act, but unfortunately the definition of a workman in the 1880 Act had reference to a previous Act, known as the Employers and Workmen Act, 1875.
The effect of that definition is that only railway servants, who were specially included in the 1880 Act, and those who gain their livelihood by manual labour were to be protected. It excludes very large numbers of workmen, e.g. seamen, domestic servants, clerks, shop assistants, tram drivers and omnibus conductors. That means that if an omnibus conductor is injured by an omnibus driver while walking along the street when he is off duty, he has the same rights as the rest of the community. If the driver is negligent, the conductor can recover damages from the company. On the other hand, if he is carrying out his duties as a conductor, he has no right at Common Law. He has his rights under the Workmen's Compensation Acts, but none under Common Law. There we see a distinction merely because a man is on or off duty. The quantum of damages is limited to the three years' average earnings prior to the accident. That is the maximum amount which can be recovered under the 1880 Act.
I shall be told that the position has been entirely altered by the 'Workmen's Compensation Acts. To some extent that is true, for those Acts have given a right to compensation to any workman who is injured as the result of an accident arising out of and in the course of his employment. That applies whether there is negligence on the part of the employer or negligence on the part of the workman, provided that the accident results in serious and permanent disablement. It applies also where there is no negligence on the part of the workman or the employer. There is, however, an unfortunate snag from the point of view of the workman; that is, the amount he can obtain as compensation is limited to the loss in his earning capacity. I can best illustrate that by examples. Take a man earning £4 a week who is seriously injured by an accident at work. Under the Employers' Liability Act, assuming the doctrine of common employment does not operate, and supposing he were in- 786 jured for six months, he would be entitled to loss of wages for six months, or roughly £104. He would be entitled also to compensation for medical expenses, expenses of convalescing, and to something for pain and suffering. The Attorney-General will agree with me that in the normal case on that basis the man would receive between £200 and £300. Under the Workmen's Compensation Acts, he could not receive more than 50 per cent. of his weekly earnings, and in any event not more than 30s. so that for the six months he would not receive more than £40. That is all that he would be entitled to receive. These illustrations are no mere theoretical suggestions. Practising lawyers will have had experience of cases which support the facts which I have given. That is a state of affairs which it is difficult to justify.
There are two criticisms which, I apprehend, the learned Attorney-General will offer towards the Bill. I expect that he will make reference to the fact that under the Employers' Liability Act it is possible to contract out, and he will no doubt say that similarly, if this Bill be passed, it will still be possible to contract out. That is true, but since the 1880 Act was passed there has been placed on the Statute Book the Shops Clubs Act, 1902, under which drastic restrictions are imposed on an employer seeking to compel his workmen to join a benefit society controlled by the employer. If a workman voluntarily agrees to join an employer's benefit society, and thereby forgoes his right under the Workmen's Liability Act, he may do so provided the shop club in question has been approved by the Chief Registrar of Friendly Societies. The employer would not be entitled, however, to make it a condition of his employment that the workman should do so. Moreover, from the practical point of view, no one would, I think, dispute my statement when I say that only a comparatively small percentage of accidents to workmen are caused by fellow-workmen, that is to say, per employer. The average employer will not be so penalised as a result of passing this Bill that he will be compelled, in order to protect his economic interests, to try to force his workmen into a benefit society.
I suggest that the passing of this Bill, even though no provision is made to pre- 787 vent contracting out, is of practical importance having regard to the provisions of the 1902 Act. The learned Attorney-General may say that the object of the Workmen's Compensation Acts has been to provide some sort of compensation to the average workman, and therefore it may have been the intention of Parliament to emphasise the machinery under the Workmen's Compensation Acts rather than under the Employers' Liability Act, but the Attorney-General knows perfectly well that under the provisions of the Workmen's Compensation Acts specific provision has been made with regard to the liability of employers otherwise than under the Employer's Liability Act itself. The learned Attorney-General will know Section 29 of the 1925 Act, which provides that when the injury to the workman was caused by the personal negligence or wilful act of the employer or some person for whose act or default the employer is responsible, nothing in the Act is to affect the civil liability of the employer. I suggest that the effect of that provision is that the Workmen's Compensation Acts are not intended in any way to deprive the workman of his rights under any other Statute or at common law. If that be so, all we are asking to-day is that the rights of the workman, so far as a common law is concerned, should be placed in the position which existed prior to the decision in Priestley v. Fowler in 1837, namely, that the employer shall be responsible for any injury caused by his negligence or the negligence of any of his servants or agents. This is not merely an academic point; it is of vital importance to thousands of workmen. There is a real need for this reform. We are not asking that the workman should be placed in any favoured position, but merely in the same position as that of other members of the community.
We want him to receive equality of treatment with the ordinary member of the community who in injured as a result of the negligence of another person, and it is with great confidence that I appeal to the House to support this Measure.
§ 11.55 am.
§ Sir JOHN WARDLAW-MILNE
I beg to move, to leave out the word "now" and, at the end of the Question, to add the words "upon this day six months".
I listened with great interest to the speeches in support of this Bill by the 788 Mover and Seconder of the Motion, but before dealing with the Bill itself I should like to take the opportunity—which the hon. Member who seconded the Motion gave me by reminding u of the fact that my hon. and learned Friend the Attorney-General is here to-day f it the first time in his new capacity—of joining with other hon. Members in offering congratulations to my hon. and learned Friend. The hon. Member who seconded the Motion appealed to the Attorney General to mark this fact by supporting the Bill, but a little later I notice fiat he doubted, apparently, the efficacy of that appeal because he suggested that the Attorney-General would undoubtedly have several objections to raise to it.
§ Sir J. WARDLAW-MILNE
If the hon. Member expects it to be supported I shall be surprised, because, unfortunately, my hon. and learned Friend is no better off than the rest of us in the matter of having a political past, and we are able. to turn to what was said by him when speaking for the Government less than two years ago when the same Bill was introduced. It is, perhaps, a good thing, when there are likely to be a number of speeches from members of the learned profession in the House, that the Bill should have been moved by an hon. Member who, I understand, does not belong to that profession, and that its rejection should be moved by one who also does not belong to it. I have no quarrel with the speeches made but I think that neither lion. Member will object when I say that though they have put the case extraordinarily clearly and, in one sense, fairly, they have perhaps, as is natural, over-emphasised the aspect of it which affects the case, not the most usual I am thankful to say, of the seriously injured workman.
There are three aspects of this question. First there is the position of Parliament in regard to the history of past legislation. Secondly there is the aspect as it affects industry. I do not say "as it. affects the employer," I prefer to say industry, because I shall try to show that it is not a question on y for the employer. Thirdly, there is the aspect of it as it affects the workman himself. I would like to make clear what meant when I said that the matter had been perhaps 789 over-emphasised in one direction. It has been said by both hon. Members that the object of the Bill is to do away with the employer's defence of common employment. The first point is, Is it very desirable to do away with the doctrine of common employment as a defence? If we look at the long history of legislation in this matter, and the growth of industry over 300 years, we shall find that it has always been understood that a man should take the ordinary risks of the trade in which he engages. I am not going to defend or support that particularly; I only want to make the point that the House should consider whether it is desirable to do away with the risks which come from common employment. After all, the employer, whether he be one of the fast disappearing individuals already referred to or a great corporation, can but take ordinary care to see that those whom he engages are competent, and it is a little difficult to ask him to ensure that there will be no carelessness, and no negligence, on the part of every workman whom he employs.
However, I do not want to make too much of that one point, except to say that I think the House really ought to consider whether doing away with the doctrine of common employment would be to the benefit of industry as a whole. Hon. Members have emphasised one side of the case and they have not put before the House so clearly the enormous changes benefiting workmen which have occurred in the last 30 or 40 years. I notice that the seconder said at the end of his speech that he wanted the workman to be put into the position he was in prior to 1837, and that gives the impression that nothing has happened since then.
§ Mr. A. HENDERSON
I am sure the hon. Member does not wish to misrepresent me. I was dealing with the doctrine of common employment and tried to make it clear that in the opinion of a good many lawyers the doctrine of common employment did not exist prior to 1837.
§ Sir J. WARDLAW-MILNE
I have no desire to misrepresent the hon. Member. I only suggested that his remarks might give that impression—or perhaps I had better say that he did not emphasise the tremendous change in the security enjoyed by the workmen which has been brought about in the last 30 or 40 years. 790 As the law stands the employer is responsible for the persons he selects to act in a managerial or supervisory capacity. The Bill, if it were passed, would put upon the employer unlimited financial responsibility, even although neither he nor those supervising his business could possibly have prevented the accident, and although no negligence could be attributed to him or those in charge of his work, directly or indirectly. This Bill ignores everything that has happened since 1897. A workman injured before that date had no claim except at common law. To-day he is protected in a way that probably does not exist in any other country. He is protected under the compensation Acts and receives compensation whether the accident is caused by his own negligence or a fellow worker's negligence, by the employer's negligence, by anyone else's negligence or even without negligence at all. Surely we can agree that, in this direction, there is complete cover as far as the Workmen's Compensation Acts are concerned.
A great deal has been said to the effect that this does not sufficiently cover what is due in all cases. I say at once that it is perfectly possible that there are gaps which should be filled up. I am not opposing this Bill with the idea that everything is perfect in this matter of compensation. There is no system of law in which it is not possible to find gaps, and I do not doubt that in due course it might be suitable for the House to consider whether the Workmen's Compensation Acts ought not to be still further amended to cover any reasonable cases that may occur, and to obviate hardship whenever possible. It goes without saying that Members of this House are more than anxious that workmen should be adequately and thoroughly covered and adequately and fully compensated.
That is a vastly different matter, however, to going back to the days before the Workmen's Compensation Act. Thirty or forty years ago the House of Commons of that day deliberately started on a new line. They dropped the system depending upon common employment and started on the system of compensation under Acts which had never previously existed. To go back is not only extraordinarily difficult, inasmuch as you are setting up a completely new set of circumstances; it is also grossly unfair. We put upon industry 791 —I emphasise that I do not mean necessarily only upon employers as I am going to say that it is much more than that—the whole burden of workmen's compensation. At the same time, we retained to the employer the right to plead common employment. The Bill is put forward without any recognition of the fact that under it would be brought about a complete change in the system under which Parliament has been working. I do not claim to have the knowledge possessed by the Mover of the Motion, nor do I deny that there may be gaps owing to the inadequacy of the Workmen's Compensation Acts, but the proper way to proceed is for a Measure to be brought in by the Government to deal with such cases, and to fill up the gaps by amending the Acts and making them as perfect as human ingenuity can do.
I say, therefore, that from the point of view of Parliament—I hope the hon. Gentlemen who moved and seconded the Motion will forgive me for saying this—it is impossible under a private Member's Bill to sweep away a system on which we have been working for 30 or 40 years, and to go back suddenly and definitely to the line of progression from which our predecessors diverted at the beginning of the century. The hon. Gentleman who spoke about the previous Bill, which was introduced less than two years ago, mentioned that a distinguished Member of the House at that time, Sir Walter Greaves - Lord, made a speech very strongly in favour of the Bill. The hon. Member gave the House the impression not only that Sir Walter Greaves-Lord strongly approved of this legislation but that he proposed it mainly for the purpose of filling up these gaps. I would like to draw the attention of the House to the printed report of the proceedings upon the Bill in Committee and to a word or two of what Sir Walter Greaves-Lord then said. He said:The Bill raises the question as to the whole trend of legislation in respect of compensation to workmen "—I would emphasise that sentence because it is exactly what I have been trying, rather inadequately, to put before the House. He went on to say later,and there is the very real question, which has to be settled some time or other in the interest of industry itself, as to whether we have gone far enough in the direction 792 of giving compensation quite irrespective of negligence. … If you extend compensation on the lines of the present Act you are simply putting a tremendous premium on negligence "—[OFFICIAL REPORT (Standing Committee B), 1st May, 1934; col. 1196.]He further went on to point out that if the Bill were passed there would be a very real reason why a man should keep himself from negligence.
The House will notice that the distinguished Member who moved the Bill two years ago did not do it entirely from the same point of view as that which has been put before us this morning. [An HON. MEMBER: "It is precisely the same."] He considered that industry was bearing as much as it could bear of the dangers of negligence on the part of a workman himself and a result of the extension of the Workmen's Compensation Act, a man might become entitled to still further compensation even if he himself were negligent. That is a. very different aspect from that which has been put before us this morning.
To complete my picture of what happened, and the aspect of this question as it affects the House generally, I would remind hon. Members that the Committee which sat upon that Bill less than two years ago decided unanimously to recommend to the House not to proceed with it in view of the grave questions it raised. They decided that it raised questions of tremendous importance and that these could not suitably be dealt with by a Private Member's Bill. Their action was taken quite clearly because the proposition was one entirely altering the framework of legislation. I suggest that if the House is of opinion that Amendments to the Workmen's Compensation Act are necessary to cover hard cases, it is the business of the Government to introduce legislation to cover those cases and to extend the scope of workmen's compensation in whatever way may be decided to be necessary.
The Workmen's Compensation Acts have been of enormous benefit, not only in cases of definite accident in industry, but have been extended to agriculture, domestic service, commerce, industrial disease and all kinds of things. It ought to be not ed. also that in most other countries in which compensation Acts art in force, injured 793 workmen are not allowed to bring forward any action at common law at all. I do not claim to know all the details, but I think that is the case in Belgium, France and Germany, the United States and Canada, where workmen's compensation systems are in force. In this country workmen still have that right in proof of negligence on the part of employers, and are therefore better off here in that respect than probably anywhere else.
The next aspect of this matter is as it affects industry. I shall not make a very great deal of the question of the extra burden cast upon employers, although there is no doubt that it would exist, but this is a bigger matter than that. It is a greater matter than the mere question of cost. The cost would not fall upon the employer alone. It was stated here to-day that the individual employer would insure, and I am prepared to say that you may be able to insure against almost anything. I fancy there is a corporation in the City of London which will quote a rate for almost any risk that any of us would be ingenious to invent, but it is only common sense to expect that insurance against an unspecified and undefined risk of this kind would come to a very heavy charge, for the simple reason that nobody knows what the cost would be. In that event it may be a heavy rate that would be charged. Would it be a charge upon the employer alone? I would ask hon. Members to refer again to the proceedings of the Committee on the last Bill. There they will find a well-known Member of this House denying entirely that any of the cost would fall upon the employer. The hon. Member for Westhoughton (Mr. Rhys Davies), in Committee on the Bill, said quite definitely that it would fall upon wages. His words were:In my view all these social services are simply reducing the wages which industry would have been compelled to pay if they were not in existence."—[OFFICIAL REPORT (Standing Committee B), 1st May, 1934; col. 1204.]He estimated, as I understand it, that it might result in the payment of lower wages because it would become a wage charge. To my mind it is not merely a matter of the employer at all; it is a question of the charge that will fall upon industry as a whole. If the charge 794 is unreasonably high and has to be insured against at high rates, then it is a charge that is going to affect everyone in industry, a charge which will make it more difficult for us to compete in the markets of the world and will lead to less employment rather than more.
Lastly, there is the question of the workman. If the Bill were passed would it really be to the benefit of the worker himself? It would be of benefit, perhaps, to those few hard cases which do not make good law. But such cases should be met by an extension of Workmen's Compensation. These cases of accidents are not all serious, far from it. Figures which have been given to me show that about 75 per cent. of the present cases of compensation are not the result of serious accidents, and that about 45 per cent. of them have reference to accidents in which the man is back at work within two or three weeks. So that we are not dealing alone with cases of great injury. The vast majority, I am thankful to say, are trivial cases.
§ Sir J. WARDLAW-MILNE
Almost 90 per cent. of these cases are settled without any court hearing of any kind. They are settled under the Workmen's Compensation Acts. Let me give the figures. In 1934 there was no less than £11,000,000 paid out of industry in compensation of one kind or another. In the coal trade £2,600,000 was involved and this represented 174,000 cases. Most of these cases are settled without any reference to the courts. In a vast majority of cases it would be possible, no doubt, to claim on the ground of negligence by a fellow workman. It is almost unbelievable that it would not be possible to claim that in a large number of cases and if this Bill passed a large number might have to go to court. They cannot go to the county courts because the limit of their jurisdiction, I understand, is £100. They would, therefore, have to be taken to the High Courts. I am not a member of the learned profession, but I will say that a good many of us would view with considerable objection the idea that we are going to augment the incomes of the lawyers in this country by sending a vast number of these cases into the High Courts.
795 As one who has had some bitter experience of the law I wonder what percentage of the figure claimed and allotted by law to the applicants would really reach their pockets after a case in the High Courts. I think the House will doubt the advisability of putting any large proportion of a vast sum like £11,000,000 through the High Courts of this country, with the idea that it would benefit the workmen in the end. It is quite clear, apart from anything else, if these cases were going into court, that the temptation to try to prove negligence on the part of a fellow workman would be irresistible, and with protracted cases carried on day after day and perhaps week after week in the High Court I do not think that the workmen of this country would be any better off.
§ Mr. DINGLE FOOT
Why not give them the alternative? It would still be open for them to come under Workmen's Compensation if they did not use this alternative.
§ Sir J. WARDLAW-MILNE
To me this proposal really, ignores what has happened in the past. It ignores the whole of the proceedings of two years ago. It ignores the fact that Parliament during the last 40 years has immensely improved the position of workmen under the Workmen's Compensation Acts and has at the same time done that by a clear, if implied, indication that it will not destroy the defence of common employment on behalf of the employer. It seems to me, therefore, that it is asking too much to expect Parliament suddenly to reverse the procedure under which we have been working for so long, that it would be unfair to industry to have alone to pay the cost, and that in the end it would not be to the benefit of the workmen themselves. For these reasons I hope that the House will reject the Bill.
§ 12.20 p.m.
§ Colonel ROPNER
I beg to second the Amendment.
After the opening remarks of the hon. Member for Kidderminster (Sir J. Wardlaw-Milne) I feel more than ever conscious of the fact that the Seconder of the Amendment might better have been a Member of the learned profession. This is a very short Bill, but it is by no means a simple Bill. I listened with very great care to the speeches of the 796 hon. Member for Rhondda East (Mr. Mainwaring) and the hon. Member for Kingswinford (Mr. A. Henderson). I was very impressed with some of the hard cases that they mentioned. I am not a lawyer, but I have no hesitation whatever in asking the House to accept the Amendment which has been so ably proposed by the hon. Member for Kidderminster. I do so on several grounds, and I will mention three of flew. The first is that the Bill would place on industry an incalculable burden at a time when the difficulties which have to be faced by trade and industry are already great. Hon. Members opposite may say that that statement reminds them of old arguments which have been used in the past by reactionaries or the hard-hearted to oppose all extensions of our social services, but it is not from the reactionary point of view that I am opposing this Bill to-day. May I for a moment quote from the Report of the Royal Commission on National Health Insurance, which was issued in February, 1926, and was signed by Mr. Arthur Henderson:While the many social services which this country has instituted, represent different principles in the distribution of financial responsibility, the provisions they make have a common origin in the annual income of the community, derived from its current productivity and its accumulated savings. There may come a time, and in fact there has come a time, when the State may justifiably turn from searching its conscience to exploring its purse.May I ask the proposer and seconder of the Bill whether the necessary exploration with regard to the resources of industry has actually been made? As has already been pointed out, the burden on industry of workmen's compensation is already very great; some £11,000,000 a year is spent. Not a penny of that money is grudged by trade and industry, but are the proposer and seconder of the Bill really convinced that trade and industry to-day are in a position to stand the imposition of a new burden—a burden the extent of which no one knows?
§ Mr. MAINWARING
Would the hon. and gallant Member apply himself to the point that I made, that to-day the burden of compensation is great because of the unnecessary risks maintained in industry, and that, if the plea of common employment be except ed, then greater safety measures will be introduced into industry, and as a result the compensation necessary will fall?
§ Colonel ROPNER
I think that the hon. Member, if he will allow me to continue, will find that. I shall deal with that point a little later in my speech; but surely he would not deny that, if this Bill became an Act, there would be cast upon industry a new and an unknown burden. I am told that the cost of social services to-day amounts to something over 4d. on every ton of coal, and, if this Bill became law, that that amount might well be doubled. The hon. Member for Rhondda East, connected as he is so closely with the mining industry, would surely agree with me when I say that an additional cost of 4d. on every ton of coal, particularly for export, would be a very serious matter.
§ Colonel ROPNER
I hope in a few minutes to put some questions, and I shall he very pleased to give way if hon. Gentlemen opposite are in a position to give me answers to them, but I am not so sure that the suggestion I have made is so absurd as they appear to think.
§ Colonel ROPNER
I was referring to an additional 4d. I was saying that the cost of social services already amounts to 4d. on every ton of coal, and it has been estimated by the industry that, if this Bill became law, it might well lead to an extra 4d. per ton to meet the claims which would be made. If the law were not fair to-day, if in some cases it were not even generous, or if this Bill stood alone, it would not be one that we should resist from the side of the House; but when we are so fortunate in this country as to possess a system of social insurance which surpasses that of any other country in the world, I think that very careful inquiry needs to be made before we add to the burden of maintaining those social services.
I come now to the questions which I am tempted to ask the supporters of the Bill. What would be the cost? Has any serious estimate been made by either the proposer or the seconder of the Bill of what the cost would be? Can they say whether it would be £1,000,000, £10,000,000, £100,000,000, or 798 £1,000,000,000? Can they give even an approximation of the cost which would have to be borne by industry? And when I speak of industry I mean, as did the Mover of the Amendment, the whole realm of industry, including as it does the wages paid. How many men would be thrown out of employment if this new burden were imposed on industry Has any serious estimate been made of the number of those industries which arc only struggling along to-day, and might well have to dispense with labour if this new burden were placed upon them? Until we have answers to questions of that sort, it would, I submit, be folly for the House to give a Second Reading to this Bill. I am advised that the cost of litigation would be enormous, that the number of claims would be gigantic, and that there would be a very real dislocation of trade and industry. Surely this House must not give a Second Reading to such a Bill until the cost has been estimated and the possible damage to industry assessed.
There has been substituted for the common law, or, if you like, superimposed upon the common law, other legislation of an entirely different kind. If the question that we are discussing this morning be the question of the adequacy of compensation, surely it would be better to improve the benefits which are being given under workmen's compensation, and to extend the scope of workmen's compensation, rather than to take what I submit would be the retrograde step of going back to the common law.
§ Colonel ROPNER
That brings me to ray second point, which is of a more legal nature. This Bill, as has been pointed out already, attempts to reverse the tendency of the last 100 years—and to send claims back to the dangers of the common law. Many years ago the common law was the only law dealing with such cases as we are considering this morning, but in 1880, the Employers' Liability Act was passed. In 1897 the first Workmen's Compensation Act was passed. Payments under it have been extended from time to time and it has been so modified that today the worker is entitled to compensation no matter how or by whom the accident was caused 799 and quite irrespective of negligence. It is possible to obtain compensation for accidents due to a fellow worker's negligence, the worker's own negligence, the employer's negligence, anyone else's negligence or no negligence at all. Where the negligence results in death or serious disablement payments are made even where the employé has contravened regulations made for his own safety or disobeyed orders. I claim that we should not in any respect go back to common law, for which generations ago workmen's compensation was substituted. Far be it from me to speak harshly of the legal profession but I am tempted to remind the House of some words of the hon. and learned Gentleman the Member for Argyll (Mr. Macquisten) when the Bill was considered in Committee a year or two ago. He said:A hungry and unemployed lawyer is dangerous until he gets on to a job. They seized upon the Employers' Liability Act in 1880 as a perfect Godsend. It was one of the scandals of the profession in Scotland that, instead of the poor workman getting much benefit out of Employers' Liability Acts, almost the entire benefit fell to members of the legal profession. The costs were simply endless. The abuse became so clamant and went on for years and years until employers and workmen recognised that employers' liability legislation was no way to 'benefit the worker. After much cogitation they decided that it was far better for the employers to insure workmen under a form of workmen's compensation and the Workmen's Compensation Act was indeed passed.We have all heard, even if we do not believe, the term "speculative solicitor." This Bill, if it becomes an Act, would be a Godsend to speculative solicitors. The hon. Member who moved the rejection reminded us that in the mining industry alone over 170,000 cases a year are settled under Workmen's Compensation Acts—£2,500,000 paid by that industry alone. I have seen it stated that in at least half those cases negligence might be remotely attributed as the cause of the accident. The hon. and learned Gentleman opposite asked my hon. Friend how he could substantiate the statement that, where there is doubt, the workmen would have recourse to the Common Law and would not claim under workmen's compensation. His own profession would see that the workmen took that course and, wherever there was the remotest possibility of negligence being shown, the speculative 800 solicitor would persuade the workman to claim under Common Law. The costs would be tremendous and the uncertainty would be great.
§ Mr. MAGNAY
Does not that possibility enter into the minds of litigants whatever they are concerned about—the possibility of failure and being mulcted in costs in that event?
§ Colonel ROPNER
What I am trying to show is that we have superimposed on our Common Law the Workmen's Compensation Acts, which relieve the workman of the necessity of proceeding under Common Law. Over 90 per cent. of compensation cases are so settled quickly and without any question of legal action. For generations this House has attempted to relieve the workman of the speculative risk of Common Law and to give him security under the Workmen's Compensation Acts. It may he that anomalies arise under the law as it stands, but one has only to read the proceedings on this Bill in Committee two y ears ago to appreciate that, while some anomalies may be remedied, it would itself create a host of new ones. If the Bill became law it would reverse the policy of this House for the last 100 years, would substitute uncertainty for certainty and would bring little benefit to anyone outside the legal profession. And surely a Bill of this importance should be introduced by the Government. I have already asked the mover and seconder of the Bill if they have made any estimate as to the cost.
§ Mr. A. HENDERSON
We are not interested in the cost. We are interested in making the law such that, when a person is injured as the result of negligence by a fellow workman, no legal technicality can stand in the way of obtaining justice.
§ Colonel ROPNER
"We are not interested in the cost." I think we may leave that remark to the judgment of the House when the Division is taken. The fact of the matter is that there has been no sort of estimate of the cost—an estimate which would have to be made if the Government itself were responsible for bringing in the Bill.
§ Mr. MAGNAY
Would it have been possible for anyone to estimate the cost of motor accidents 30 years ago? Would it not have been appalling to the mind of all actuaries? But it has been borne.
§ Colonel ROPNER
I do not know why the hon. Member should address a question to me. I am asking him a question to which, so far, I have received no sort of reply. I hazard a guess that there will be no reply. Has any estimate been made as to the number of cases that will be brought under Common Law if the Bill be passed? There, again, had the Government been responsible for the Bill, the House would have been given that very important information. Has any Labour organisation been consulted with regard to this matter? Have their views been ascertained?
§ Mr. MAINWARING
Every trade union in the country knows of this difficulty, that cases may possibly be taken to court. The hon. and gallant Gentleman may take it from me that, in the 90 per cent. of cases in the mining industry that are automatically settled, no question of negligence arises. It is the remaining portion that may give rise to the cases about which we are talking.
§ Colonel ROPNER
The hon. Member may think that that is an answer to my question, but I do not believe that anyone else will think so. We are all aware of the hard cases which have arisen under the law as it stands. It is no answer to me, when I ask whether an inquiry has been made of Labour organisations with regard to the effect of the Bill, to say that every organisation is aware of hard cases.
§ Colonel ROPNER
That is not sufficient for this House. If the Government had introduced a Bill of this magnitude, very careful inquiry would have been made. Have any inquiries been addressed to employers' organisations? Employers are not all hard-hearted men as hon. Members opposite seem to believe. Employers' organisations would be only too ready to lend their advice, assistance and help as to how workmen's compensation might be improved.
§ Colonel ROPNER
Employers' organisations would be only too ready to lend advice and assistance in matters dealing with the workman concerned. I am certain that if they had been consulted they would not have recommended that a Bill of this nature should have been introduced. Have insurance companies been asked as to what would be the extent of the premium to insure against the new risk? During one of the speeches mention was made of the possibilty that some small employers would not be able to bear the cost of the insurance premiums, and certainly could not bear the cost of claims made under the Bill if it became an Act. The House is entitled to know, before it is asked to vote on this matter, what sort of premium the promoters of the Bill have in mind as being likely to be asked by insurance companies to cover the risks they are to undertake. I do not doubt that a firm could be found in the City which would be prepared to name a premium, but I should like to know what it would be before we vote upon the matter. All those inquiries would have been made, and information would have been at the disposal of this House if the Bill had been introduced by the Government.
§ Colonel ROPNER
I am ready to meet the criticism of the other side, but I think that I have given way sufficiently already.
§ Colonel ROPNER
I do not want to have to be continually giving way. The hon. Member who moved the rejection of the Bill—as I think did another hon. Member—drew attention to the fact that this Measure was at one time introduced by Mr. Justice Greaves-Lord who is very eminent in the legal profession. But Mr. Justice Greaves-Lord not only introduced the Bill, but was himself responsible for its withdrawal in Committee. He said in the closing stages of the one day's proceeding which the Bill survived in Committee:I am going to suggest that the Committee do not proceed further with the Bill … there are matters for very serious consideration in connection with it. …. without facilities it would be quite impossible 803 for the Bill to get through during this Session of Parliament, and, personally, 1 strongly hold the opinion that the time of Parliament should not be taken up needlessly. …. It has been shown that there are matters for very serious consideration, and. … the right course is to move that the Committee do not proceed further with the Bill."—[Official Report (Standing Committee B), 1st May, 1934, col. 36.]We are in exactly the same position to-day on the Motion for the Second Reading of this Bill as was that Committee two years ago. We have not the information which would justify us in supporting a Bill of such far-reaching effect introduced by a Private Member. Workmen must receive fair compensation, even generous compensation, but if reform is really needed, it should be a Government Measure aimed at extending compensation under the Compensation Act, and should not be the retrograde step of going back to the common law. When a Bill of this sort is introduced by the Government it will certainty receive my wholehearted support.
§ 12.51 p.m.
§ Mr. FOOT
I rise to say that we on the Liberal opposition benches have considered the Bill and propose to give it our support. Although there is a considerable difference of views this morning, I am sure that we all join in congratulating my hon. and learned Friend the Attorney-General upon his recent promotion, and we wish that we also had the chance this morning of congratulating his colleague the Solicitor-General. I very seldom approve of anything that the Government do, but I can at least applaud their choice of Law Officers. At a time like this, when we go from one crisis to another, it is obviously essential that in every Department of State we should have the best brains that can possibly be found. In these circumstances it is a natural and proper thing that the Prime Minister should avail himself of that great reserve of talent which is always to be found on the Western Circuit. The hon. and gallant Member for Barkston Ash (Colonel Ropner) quoted the hon. and learned Member for Argyllshire (Mr. Macquisten) and referred to the danger of hungry and unemployed lawyers. It is indeed pleasant this morning to be able to contemplate two members of the profession who are permanently removed 804 from the dangers of hunger and unemployment.
There has been one remarkable feature in this debate. So far we have had two speeches in favour of the Bill and two in support of the rejection. I listened very carefully to the arguments of the Mover and Seconder of the Amendment for rejection, but it is remarkable that neither of them really had a good word to say for the doctrine of common employment. I have read through the reports of the Second Reading debate in 1934, and also the report of what was said upstairs before that Bill was withdrawn. Therefore, although a large number of argument were advanced by hon. Members who disliked the Measure, I think that I am right in saying that there was not a Member in any part of the Committee upstairs who had a good word to say for this doctrine. It is a doctrine which has absolutely no foundation in logic. On the last occasion the Attorney-General, then the Solicitor-General, quoted to the House a judgment of Mr. Justice Neville as recently as 1917. I will read the quotation which he then gave to the House:The doctrine of common employment appears to me a purely arbitrary and artificial rule founded upon neither principle nor, prior to 1837, authority; a mere excrecense on the Common Law."—[OFFICIAL REPORT, 2nd February, 1934; col. 74–3, Vol. 285.]There is an old saying in the legal profession concerning this doctrine which will, no doubt, be familiar to one or two of my hon. and learned Friends in this House:—Lord Abinger platted it, Baron Alderson watered it, and the Devil gave it increase.I should like my hon. Friend above the Gangway, and other hon. Members who think of taking part in the debate, to read with some care the judgment in the leading case in which this doctrine first appeared. It seems to me that originally this doctrine of common employment was based t lion two principles. First, it was said that the servant can choose his employment, and so he is not bound to expose himself to risk. Secondly, it was said that he knows, at any rate, as much about the risk as his master, and so he can guard himself. I think that is a fair statement of the principles upon which this doctrine is founded. Is the House prepared to day to accept either 805 of those propositions? The first proposition that the servant can choose his employment and need not expose himself to risk is clearly not true, and the denial of that proposition is explicit in a good deal of our modern law. Suppose the servant refuses employment which the court of referees considers reasonable employment, and he refuses it because he apprehends there may be some risk of negligence, he will he penalised under our existing law. In regard to the second proposition, when Lord Ahinger gave his judgment, he had in mind what might be called a common job where two employes are working all the time at much the same kind of work. Since 1837 that conception has been widened and has been heightened so that we have had cases where, for instance, a seaman and the captain of the ship are held to be in common employment and the actress and the scene-shifter are also held to be in common employment.
I want to say a word or two about the two speeches we have heard for the Rejection. The hon. Member who moved the rejection (Sir J. Wardlaw-Milne) said that the workman should take the ordinary risks of the trade into which he enters. I took him to mean that if a workman enters a trade in which there is some risk of injury by a fellow-employe of a fellow-servant through negligence he must bear that risk.
§ Sir J. WARDLAW-MILNE
What I suggested was that the House as a whole might consider as to whether it might be an advantage to do away with common employment altogether. I did not suggest that a workman should take undue risks due to negligence, but that there are certain risks connected with that employment.
§ Mr. FOOT
We are dealing here only with risks arising from negligence by a fellow-servant, so the proposition of the hon. Gentleman is that, there being that risk, the workman must be called upon to bear it. Why should the whole of that risk fall on the workman and none of it on the employer? Because that is what happens under the doctrine of common employment. Neither of the hon. Gentlemen who addressed the House for the rejection sewed to me really to apply themselves to the question which is at the core of this matter. Why should the employer be under a lesser liability 806 to one of his servants than he is to a stranger? That goes to the root of the matter, and I do not think it is unfair to say that neither of the two hon. Gentlemen who addressed the House attempted to give the slightest answer to that question. I have been through the speeches made in 1934, both on the Floor of the House and upstairs, and I do not think any one attempted to answer that question.
The hon. Gentleman went on to say that we are not dealing with cases of tremendous injury for the most part and that 75 per cent. of the injuries sustained in industry were minor injuries, many of them only involving the loss of work for two or three days or weeks. That seemed to me to cut across the argument that this Measure would necessarily be a tremendous burden on industry, and I should have thought that in this case, even if this Bill were passed, the workmen would generally be advised, even in future, to proceed under workmen's compensation rather than under common law. Then the hon. Gentleman raised a cheer in the House by asking how much of the money paid would find its way into the pockets of the workman. In order to drag a red herring across the trail both of the hon. Members proceeded to make an attack on the legal profession, and suggested that a large part of the money which would be paid by employers if this Bill became law would go not to the workmen but to the legal profession. Has it not occurred to the hon. Member that in the great majority of cases where workmen are successful judgment would be given with costs, and that the whole amount of damages would go into the pockets of the workmen?
§ Sir J. WARDLAW-MILNE
I would point out to the hon. Member that I started out by saying that there were a great many members of the legal profession here who might be able to refute the suggestion.
§ Mr. FOOT
It would be easy to refute that suggestion. What the House has to decide is whether this doctrine of common employment is just or unjust. Neither of the hon. Gentlemen denies that there is injustice involved in preserving this doctrine. Has an argument been seriously put forward in this House that we are not going to give a measure 807 of justice because we are afraid that some part of the money would find its way into the pockets of the legal profession? That argument would militate against almost any reform put forward in this House. The hon. and gallant Member who seconded the rejection began by dealing with the cost to industry. Even if no estimate was given, I should not have thought that that was a conclusive argument. I do not suppose that before the Employers' Liability Act or the Workmen's Compensation Acts were passed it was possible exactly to estimate the burden upon industry. The point I would make is that hon. Members on this side of the House have established that here is an obvious injustice in a great number of cases. I think that hon. Members opposite admit that.
§ Sir J. WARDLAW-MILNE
I said there may be hard cases. I am not prepared to accept the hon. Member's word "injustice."
§ Mr. FOOT
I think it would be agreed that we have had experience of a considerable number of very hard eases under the application of this doctrine. If we can satisfy the House that there is here an injustice, a number of hard cases, and hon. Members opposite resist this reform purely on the ground that the burden on industry will be too great, surely the onus rests upon them to say what that burden will be; it is for them to make the necessary calculations. I submit that if hon. Members on this side prove that there is an injustice on a number of workmen they have established a sufficient case to justify the House in giving a Second Reading to the Bill.
The hon. and gallant Member went on to use a most extraordinary phrase. He besought the House not to send a claimant back to the dangers of Common Law; he would rather rely on the sure shield of workmen's compensation. If I were a constituent of the hon. and gallant Member who had been earning £4 or £5 a week and had been injured and was now receiving the maximum of 30s. a week, I suppose he would console me for the loss of £2 or £3 per week by telling me that at any rate I was escaping the dangers of Common Law. If a widow whose husband had been killed in industry and the maximum she could 808 get for herself and children was £600— which the House will agree is in many cases an absurdly small amount—again I suppose the hon. and gallant Member would console her by telling her that she had escaped the dangers pf Common Law.
§ Mr. FOOT
She can proceed under Lord Campbell's Act. Tie contrast which the hon. and gallant 119 ember was making was between the law as it stood before the Workmen's Compensation Act was passed and as it has stood since. The whole of his speech depended on this distinction. It is perfectly obvious that in a number of cases, particularly where there have been fatal accidents, the compensation allowed under the Workmen's Compensation Act is entirely and ludicrously inadequate. We say that in cases where there has been negligence and where an employer would be liable for injuries to a stranger caused by the negligence of his servant, he should also be liable in the case of a fellowservant. Lastly, the hon. and gallant Member referred to what happened two years ago and said, finally, that he did not think this was a subject which ought to be dealt with by a private Member's Bill. It seems to me that many private Members have an exceedingly poor opinion of themselves. Again and again when a small Measure of but one Clause, like the present Bill, is brought before the House, hon. Members who are at a loss to find any substantial arguments against it say that it is not a suitable matter for a private Member's Bill. In the past some of the most important resolutions and measures have been introduced by private Members, but now, apparently, a private Member is not to be allowed by means of a private Bill to tackle any considerable subject or propose any considerable reform. It would be a disastrous thing for this House if such a doctrine were to prevail, and I hope that private Members will be ready to exercise their undoubted right to-day and support the Measure.
§ 1.11 p.m.
§ Mr. MAGNAY
I am glad that this subject has been dealt with in a private Members' Bill, because it seems to me that it is essentially a. principle which should be discussed without the heat of 809 party strife entering into the matter at all. I have had communications from friends of mine of both sides; from employers of great ability for whom I have the highest regard, and who are as much interested in the public welfare as anyone in this House. I have done my best to understand the implications of the Bill, and I have read what the Attorney-General said on the last occasion. Here, may I add my congratulations to him on his appointment as Attorney-General? I have done my best to make myself acquainted with the facts, and I am not at all convinced by the special pleading of those hon. Members who are opposed to the Measure. Probably no one in this House has had the same experience of Workmen's Compensation Acts as I have had. For over 20 years I was the chief at a county court and had to draft all the awards. I can remember two or three cases coming under what we called the Campbell Act, but I also remember the huge accession of work which came to me after the passing of the Workmen's Compensation Act. Instead of having a few hundred pounds as a cash balance there was usually over £14,000, and I had to be responsible to the Treasury for every penny, and no excuses made or taken. I know what workmen's compensation means.
May I give two examples within my own experience, and about which I have been thinking during the whole course of the Debate. Before the Workmen's Compensation Act was passed a very dear friend of mine was working at the Newcastle Quay, and by the negligence of a fellow-servant he received such injuries as caused his death within a day or two. I knew his family well, indeed I married one, and from comparative comfort they were swept almost to penury, and had to be supported by their relatives. About 10 years later another dear friend of mine in the same employment, the same firm, by the negligence of a servant was swept from time into eternity. But the Workmen's Compensation Act had been passed, and I thanked God that there was such a cushion, such a shock-absorber, to save the widow from what had happened to my other friend's wife. The whole compensation was in that case given to the widow. Why should any working man be shut out from receiving compensation because of the common 810 law? Why should he, without his knowledge or consent—because I doubt whether any working man knows anything about the doctrine of common employment, or anything about common risks and legal jargon—be shut out from receiving adequate compensation?
A great many things have happened since 1836 or 1837. Since that time we have made tremendous progress in social welfare in many ways. When I heard my hon. Friend the seconder of the Amendment ask for some idea as to what would be the financial responsibility placed upon industry if the Bill were passed, it left me quite cold. One would think that industry was static, but, as I have said in this House before, and as I shall say on every opportunity I get, we are living in a new age, and the machine has amazingly increased the productivity of our people. This proposition is now quite a different matter from what it was in 1837. At that time the employers did not want the words "insurable risk" used in connection with that decision of nearly 100 years ago to which reference has been made. At that time it was inconvenient to the employers to have what they thought was that added risk. I am certain it is an insurable risk.
When I was first in politics, 30 years ago, going into Northumberland, Durham and North Yorkshire and speaking at street corners on behalf of young Liberalism, I was told by older Liberals that I was killing the Liberal party. I admit that we are suffering for our enthusiasm. Perhaps we made the Labour party. Whether they know it or not, we gave them a philosophy which they had not had before. In any case, we did kill the Manchester School of laissez faire. He who talks now in the terms of the philosophy of the Manchester rigid doctrinaire school, is a Rip Van Winkle, for we are in a new age. When, a generation ago, Joseph Chamberlain pleaded in this House for old age pensions, the same objections were put forward as have been put forward this afternoon by the hon. and gallant Member for Bark-stone Ash (Colonel Ropner). It was asked what would be the cost. The cost would have been £3,500,000, and that was unthinkable.
§ Mr. MAGNAY
Well, I am dead against the hon. Member there. If the hon. Member will excuse my saying so, he does not know what he is talking about. The trouble with the Labour party is that their minds are static and fixed. They suffer from that species of madness known as the "fixed idea". I will not say anything more than that, but I will give them twice as much if they interfere again. Not so long ago Harcourt talked in this House about a Budget of £100,000,000. Since that time we have got hundreds and thousands of things which then appeared incredible, and the insurable risk is one of them. If 30 years ago anyone had contemplated what would be the cost of insuring risks in the motor trade, he would have thought it an incredible thing, but it has come. I am amused when I hear hon. Members talking about these hostages to fortune. Nobody can tell what the size of a family will be or whether a child will have ginger hair or curly hair; these are hostages to fortune, and we take the risks in the enthusiasm and exuberance of youth. But we have the insurable risk, to the advantage of ourselves in every way.
As I see it, the State is not something fixed, but is a living entity which has to adapt itself to its environment. The test of life is the power of adapting oneself to a new environment. If I were to look over the Terrace to-day and slipped in I should drown, for I would not be able to adapt myself to a new environment. We have to look upon the nation as a living entity, and, as I think, the best is yet to be.
I come from the working class and I know exactly how the shoe pinches. The judgments of the courts have, in effect, put through my hands hundreds of cases of widows and dependants, and I know the whole matter from the beginning. I would say to the Attorney-General that we must study large maps, must look the whole width of the horizon and consider all the possibilities of the welfare of our people. I object to any limitation. Being a Liberal I put my emphasis on life. Others who put the emphasis on the means of life call themselves Tories or Socialists. Being a liberal I say that man is an end in himself and not a means to an end, and I must vote against 812 anything that would trip him up and keep him away from the Common Law and the common rights of humanity.
§ 1.22 p.m.
§ The ATTORNEY-GENERAL
I hope the House will think this is a convenient moment for me to make such remarks as I have to make in this Debate. I would like, first of all, to express my thanks for the kind references which have been made to me by speakers in the course of the Debate. In this atmosphere I am loth to disagree with anybody, but, as the speakers have been in disagreement with one another, that would be an impossible task.
I do not wish to spend any length of time on the doctrine of common employment, because the House hat heard it adequately explained by one or more hon. Members. I would like merely to say, in order to get our terminology right, that the doctrine of common employment is part of tie Common Law of this country, and it is no good talking as though it were not. What this Bill proposes to do is to alter the Common Law. Therefore, I suggest to the House that the proper framework in which to consider this Bill is to consider it in relation to the other alterations which have been made in the Common Law on this subject by other Acts in the past. There is no doubt that as the 19th century proceeded on its course, round about 1880 and before, the question of the compensation which injured workmen should get played a large part in public controversy, and in 1880 an inroad was made on this Common Law doctrine of common employment. Thereafter, from 1880 to 1897, there was a school which, like this Bill to-day, said that the right course was to abolish the doctrine of common employment altogether. They would give to the workman who had been injured by the negligence of a fellow-workman the right to damages assessed on an ordinary, common law basis. But there were others who, as I see it, suggested the introduction of what was really a new idea, not logically inconsistent with the other but proceeding upon a different basis and a different principle. After all, to an injured man, whether one takes a terrible case such as that put before us by the hon. Member for East Rhondda (Mr. Mainwaring) or an ordinary case of small injury, the hardship to the man concerned is exactly 813 the same, whether somebody else has been negligent or whether somebody else has not been negligent. The pain and suffering, the loss of wages, the degree of injury are all exactly the same, whether the man working beside the injured man has been negligent, or whether it is purely an accident, or whether it has been due to the negligence of some other person.
§ The ATTORNEY - GENERAL
Or whether it has been due to his own negligence. In every case, the thing for which damages are intended to be a compensation in so far as compensation can be made is exactly the same. As I understand it, our workmen's compensation system was based on that principle and it provides that the working man who is injured at his work is not entitled to damages on a Common Law basis but that he should get a measure of compensation, quite apart from any question of whether there has been negligence or not. As I see it, that was really bringing in a new principle and I think a sound principle with which I believe Members in every quarter of the House would agree. It is true that the actual compensation awarded on those lines in a number of cases would not be as large as damages awarded on the basis that a defendant had been at fault but I think everybody will agree that that was reasonable and right and proper. Of course it is open to us at any given moment in our development to reconsider the scale of compensation awarded. There, I agree with the hon. Member for Gateshead (Mr. Magnay). The last thing I want to be is to be static and it is open to anybody to argue at any given stage that the scale of compensation should be considered. That, to my mind, is the important consideration in connection with this Bill, namely, that Parliament has confirmed the principle that compensation should be awarded irrespective of negligence. This Bill seeks to make the measure of compensation depend on whether negligence has been proved or not. It says, in effect, that if you can prove that your fellow-worker has been negligent you will get a larger sum of money and I think that that is really going back on the principle which Parliament previously adopted.
§ Sir ROBERT YOUNG
But is it not a fact that under the Compensation Acts up to now an injured worker has still a claim at Common Law?
§ The ATTORNEY-GENERAL
I was just about to deal with that point. I think the hon. Member for Kingswinford (Mr. A. Henderson) raised that point. There are still cases under the Act of 1880 in which the employer is sued and in which negligence is still a material factor. I agree that, in passing subsequent legislation that we were illogical and it may well be argued that when the Act of 1897 was passed if we were living in a community which was dominated by logic we ought to have repealed the Act of 1880. But what we said was, and it seems the better way, that we would adopt the new principle but that we did not want to take away any existing legal rights. We left them there but we said that for the future we would follow a certain course. When the Bill is considered in that way, I think it will be found that there are answers to the points which have been put forward. The hon. Member for East Rhondda submitted the case of a railway accident in which, owing to the negligence of an employé, a fellow employé is injured and a passenger is injured. He said "Why should the passenger get damages at common law when the employé can only get workmen's compensation?" There is this difference to be borne in mind. A passenger has to prove negligence in order to get any damages. The employé gets compensation whether there has been negligence or not.
I would put the matter to hon. Members opposite in this way, which I think is a fair and not unuseful way of putting it. Suppose a man to be in the position of applying for a job on the railway or in a factory or anywhere else and the employer said to that man, "I will take you on on either of the two following sets of terms. The first set of terms is that you will get damages if you are injured by negligence, if you can prove that negligence, but I warn you that, unless it is a very clear case, people are apt to dispute allegations of negligence and that you are likely in such a case to be involved in litigation in which you may not be successful. The second set of terms is that I will agree to give you compensation on a lower basis in case of injury 815 irrespective of whether there has been negligence or not or of whether the negligence has been on your own part or not, and that, broadly speaking, subject to certain exceptions, if you are injured at your work compensation will follow automatically." There is the alternative. I cannot help thinking that in such a case I should choose the latter alternative.
§ Mr. GALLACHER
He would take compensation for any injury received where there was no negligence, but he would have the right to sue for damages at Common Law where there was a possibility of proving that negligence, and if he failed to prove it, he would still be entitled to compensation.
§ The ATTORNEY-GENERAL
That is the position now. There is nothing to prevent anyone suing at Common Law, but this Bill proposes to alter the Common Law, and I am dealing with it on that basis. I think that is the answer to what the hon. Gentleman said. That is the position as I see it. I am not standing at this box, representing the Government, to influence Members one way or the other. This is a private Member's Bill, and everyone votes according to his opinions. On the other hand, it is right that I should put before the House the considerations which impress us with regard to this Bill. The next point which was discussed at some length was the question of the burden on industry. The hon. Member for Kingswinsford dismissed that very airily, and said he did not care. I think that is rather a light-hearted attitude to adopt. If a little investigation of a matter showed that it would in fact impose a burden which might, for example, damage our export trade, that is at least a point for consideration.
So far as that argument is concerned, the House has heard speeches from hon. Members opposite and from my hon. Friends behind me, the Members for Kidderminster (Sir J. Wardlaw-Milne) and Barkston Ash (Colonel Ropner). I do not want to go into the merits on that point, but I put the point to hon. Members opposite as one meriting their definite consideration. The hon. Member for Kingswinford who, to my regret, is not now in his place, suggested that I might celebrate my birthday in my new office by giving my blessing to this Bill. If he were here now, I would suggest 816 that he might celebrate the same occasion by withdrawing the Bill, and for this reason: Let us assume that my hon. Friends behind me were unduly alarmed and that the burden which would be placed on industry by this Bill could properly and fairly be placed there. I suggest to hon. Members opposite, who are realists in this matter and know that burdens cannot be imposed to an unlimited extent, that on the basis that the burden imposed by this Bill could be borne, this is a bad use, on the whole, to make of the money, assuming that you are able to get it. Would it not be better, assuming you are going to increase the liability on the employers in respect of injuries to workmen to deal with the hard cases and to fill up the gaps in the Workmen's Compensation Act?
Would it not be better to spread the money out, as the Workmen's Compensation Act does, among all injured workmen, irrespective of whether negligence is proved or not, rather than create a privileged glass from the point of view of compensation and to say that if you can prove negligence, you will get higher damages?
In conclusion, my hon. Friends behind me suggested that if this Bill were passed, a large part of the money might go to the lawyers. There is, I believe, a story, no doubt untrue, of a man who had been injured by, I think, a brick falling on his head and who, when the final settlement came and he saw the amount of the lawyer's bill that he had to pay, asked on whose head the brick had fallen. To my mind the question of costs, while, of course, it has its importance, is not as important as the probability of litigation in cases of negligence. I think it is a sound argument that this Bill would, in a very large number of cases, put a working man in the difficult position of having to make up his mind whether he would risk an action for negligence—and, after all, a large proportion of accidents may be due to negligence—with the possibility of incurring a large liability for costs.
§ Mr. OLIVER
Does not a workman have to elect whether he must proceed either at Common Law under Section 29 of the Workmen's Compensation Act or take workmen's compensation?
§ The ATTORNEY - GENERAL
It is true he has to make a decision as to whether he will or will not proceed under the Act of 1880, but the decision is not so momentous, because the damages are limited under that Act. I think it is a point worth considering that the effect of the passing of this Bill would be to face him with a very difficult decision in practically every case.
§ 1.45 p.m.
§ Mr. CROOM-JOHNSON
The hon. Member for Dundee (Mr. Foot), I thought, was pushing at an open door with regard to a good many of his observations, because most of us who belong to the profession which he and I follow have for a long time thought that the doctrine of common employment was one which, if it ever had any use at all, had outlived the period of its usefulness. It was certainly at the time when it was originally pronounced a highly artificial doctrine, which I do not suppose anybody really imagines had any relation to the actual facts of a workman at that period in the world's history going to search for a job. The fact of the matter is that when people went to look for work in those days, as much as to-day, they did not anticipate accidents, any more than when a man makes a contract he is anticipating that it will be broken. Yet we have a highly artificial set of rules for the assessment of damages in breaches of contract based on what the parties are supposed to have had in contemplation as to the consequences of a breach when the contract is broken.
That being so, I do not propose to occupy any time in seeking to defend a doctrine which, from the earliest time when I was first made acquainted with it, has always filled me with wonderment. The House will, perhaps, permit me to say that I was first introduced to this doctrine before the Workmen's Compensation Act, 1897. If I were debating the matter this morning in the state of the law in 1897, I should most certainly have given my vote in favour of the Bill. But there are a great many things which have wholly altered the situation, and there have been one or two in comparatively recent times. We have lately passed a law the effect of which is that if a person dies from injuries caused by the negligence of another, the benefit of 818 the injuries passes on to those who survive him irrespective of whether they have suffered any damage. Hon. Members who follow these matters will, no doubt, have seen that the result of that Statute is apparently that the compensation for pain and suffering which an individual sustains during his lifetime, if he has not actually encashed it during his lifetime, may ultimately go to somebody to whom he has left his estate by his will, but who has not even suffered the pain or anxiety of hearing that his remote relative was deceased.
§ Mr. CROOM-JOHNSON
This is one of the new Statutes which we have passed through this House, and I cannot help feeling that we ought to consider this question a little because, surely, what we are seeking to do this morning is to ensure that the workman who is injured in the course of his work receives adequate compensation. The whole object behind the Bill is that it is thought in some cases, where the element of negligence arises, that the individual who has been injured should receive more compensation. On broad abstract grounds, I suppose that there is a good deal to be said for that, but the actual result to a particular workman, according as to whether he is injured by negligence or injured by something which is not negligence, is exactly the same to the individual man.
The effect, I think, in the present state of our social legislation, of altering the old rule would merely be that you would probably create another set of inequalities and difficulties, because A might have been injured at the work where he was employed by the negligence of the office boy, and he would have certain rights if the Bill were passed; and B might be injured, not by the negligence of anybody, and would get much less compensation. We should be only exchanging one problem for another. We should have one person in a case involving the element of negligence, which very often is not something very substantial—the error of a moment—being entitled, on the illustration which was given by my hon. Friend the Member for Kingswinford (Mr. A. Henderson), to probably 819 £300; and another individual injured in just the same way, and possibly on the same date, without the element of negligence, getting about £40 as half wages for the six months during which he was unable to maintain his working capacity.
The whole of this problem of injuries in industry wants re-examination on the lines of the attractive speech of the hon. Member for Gateshead (Mr. Magnay). This sort of legal fiction—because very often it is little more—of the element of negligence, the little drop of acid you are going to drop into the thing, ought not, so far as people who are employed in industry are concerned, to determine whether a man is to have the right of compensation or not. You may have two members of the same household injured in the same way on the same day, and in one case it would be possible to say there is just that amount of legal evidence which constitutes negligence, and the individual A would get £300, or it may be thousands, and individual B, who could not prove negligence, would get workmen's compensation. What would be the effect of that? I hope the effect would be that instantly somebody would come back to this House and say that this is not the way in which these problems ought to be dealt with. From the point of view of a great many of us, these matters require complete re-examination, and I cannot help feeling that if we pass this Bill we shall make that re-examination more difficult instead of making it less difficult, as I am sure the promoters of the Bill desire that we should do.
It is, perhaps, unnecessary to travel over the ground which has been explored so admirably by my hon. and learned Friend the Attorney-General. I was interested in his argument as to the question of the capacity of industry to stand a large increase in expenses. I have sufficient confidence in the ability of industry to undertake necessary and proper burdens in a matter of this sort, but when I am forced to examine the probability that people will be advised to go for the substantial sum paid down rather than for sums under the Workmen's Compensation Acts I am bound to say that I think the temptation will be overwhelming, in many cases, to people to try their luck in the courts. Under the existing legislation 820 if an individual brings an action claiming rights other than his Workmen's Compensation Act rights and fails to succeed he is entitled, nevertheless, to get his workmen's compensation, but there is power in the statute to make him bear the costs of the unsuccessful litigation for the larger claim. It would be a great pity to encourage in a man the idea that he should proceed with the larger claim a notion which very often does not come from the man himself—those of us who have had experience in this matter know that that is so—but is suggested to him because there are possibilities of getting larger costs if successful in a claim which is not a claim under the Workmen's Compensation Acts. It would ill become me to say anything as to the activities of members of my own profession, even of that superior branch of it which instructs me from time to time what to do, but one cannot shut one's eyes to the fact that that sort of thing does go on.
Under the Workmen's Compensation Acts, if a man meets with an accident which does not appear at the time to be a very serious accident he may get an award of compensation and afterwards go back to the courts for a review of the case in certain circumstances. I do not want to be too technical and to deal with the circumstances at greater length. The point is that the award is not necessarily a final award. At common law, if an action is brought and an award is given for injuries which do not appear at the time to be very serious the rights of the litigant—whether he be a workman or not—have then all gone. Damages have been assessed once for all and there is an end of the matter. He has no protection if it should turn out a year later, as is not infrequently the case, that the injuries are very much more severe or the consequences very much more serious, than appeared to be the case at first. I have had in my own experience cases where a jury has assessed compensation on the basis that the injuries were thought to be very grave and subsequent developments have shown that the assessment was a quite illusory and insufficient one. That is one of the dangers which the workman incurs to-day if he takes proceedings under the Employers Liability Act or proceeds at common law.
I hope I have said enough to indicate that it is in no writ of hostility to a 821 re-examination of the question or to a wide extension of the law to meet what is necessary, that I have come to the view that this Bill ought not to be proceeded with. As a lawyer, and as one who has examined the doctrine of common employment apart from anything else, I should be delighted to-day to have an opportunity of kicking it downstairs, but by proceeding with this Bill it seems to me that we shall lose sight of what we really want to do and add difficulties to a situation which already is not too easy, but which some of us think ought to be the subject of a thorough good clean-up.
A private Member conducting a Bill upstairs, if unbacked by that great machinery of Government which gives such support to those who have the advantage of sitting on the Front Bench, is unlikely in a matter of this importance to secure that complete investigation of the subject which it ought to get, and in the circumstances I venture to hope that we shall not be reduced to the point of having to give a hostile vote on this Bill, which is not what we really want to do. We are not hostile to what is behind this Measure, but I venture to suggest to the two hon. Members who moved and seconded the Motion in speeches which I, personally, found most attractive and informative that they ought not to proceed with the Bill.
§ 2.3 p.m.
§ Mr. OLIVER
Although I have listened to every speech delivered to-day, I have not heard one in which the speaker was in favour of the retention of the doctrine of common employment as such, and I feel that is remarkable in view of the fact that the Bill is designed precisely to abolish that doctrine. The opposition has fallen under two heads. One group of opponents has put forward the view that if the Bill should become law it would complicate any review of the whole question of injuries to workmen and their compensation. The other head under which the opposition has formed itself has been that this is an expense which industry ought not to be called upon to bear. The hon. and learned Member for Bridgwater (Mr. CroomJohnson) spoke of the need for a larger review of this matter, and said that if the Bill became law it might complicate things and impose upon workmen 822 difficulties which to-day, to some extent, they are not called upon to face, with the result that they might take workmen's compensation. Would not that argument apply equally to breaches of statutory duty, where a workman may elect? If it be wrong to remove this fiction, would the hon. and learned Member suggest that it has been wrong on the part of courts to grant substantial damages for a breach of statutory duty? The Common Law denied, by restriction of common employment, the right to receive damages under Common Law, and by the same argument the same damages which are received to-day for a breach of statutory duty could equally be ruled out.
The other points which have been raised have been very largely based upon some misconception. The hon. Member who seconded the Amendment said that we ought not to reverse a policy of this House, but the Bill does not seek to reverse a policy of this House. That shows conclusively that the hon. Gentleman at any rate, was not seized of the Measure he was seeking to reject. Therefore his subsequent observations were almost equally irrelevant. His speech was almost a series of interrogatories about the cost of the Measure. "Have the promoters considered the cost; have they taken the opinion of employers; have they taken the opinion of insurance companies and of actuaries?" It is true that he was directing a series of interrogatories to us, but presumably he had forgotten that a few moments before he had told us how enormous the cost would be, and that he went so far as to commit himself to saying that, if the Bill became law, the cost on a ton of coal, he had been informed, would be as high as 4d. During the whole of his speech he gave not the slightest evidence of where that figure had been obtained.
The other point which has been mentioned many times this afternoon is the burden on industry. It is amazing that when there is a question of reversing something of which no one seems to approve, consideration of the burden on industry seems paramount. Since this decision was given, about 99 years ago, what liability, I wonder, has been imposed upon thousands of working-class families as a result of it? If the Bill were passed, it would not be taking something from employers, but would be 823 giving something back to the workmen which should never have been taken from them. That is the position which hon. Members on this side of the House take. I cannot distinguish why, in a very well-known case, the very old case, in which, while a man was turning an engine on a turntable, a fellow employé working on the roof dropped something upon him and injured him. If that happened today, he would be practically compelled to receive Workmen's Compensation. If the person who dropped the slate or the brick upon him while he was turning the engine on the turntable were a workman employed by a contractor and not by his own employer the man would be entitled, in the event of negligence being proved, to receive substantial damages, in the case of personal injury. To the unfortunate victim it seems strange that because a fellow-workman, the existence of whom he probably was not aware, is involved, he is disqualified from receiving damages because of negligence, whereas negligence by the employé of a contractor would entitle him to damages.
I have listened to this Debate very religiously, but I have heard nothing which would justify our not proceeding with the Bill. While evidence as to the cost of the Measure may be important, it is no part of our duty to produce it. I have heard the introduction of many Bills in this House, but I have never heard that, as a condition of such introduction, the cost of a Bill should first be tabulated. As a matter of fact, that duty is not upon us; it is upon those who say that the Bill would be extremely costly, to produce evidence to prove that statement. I have listened very diligently for such information, but it has not been forthcoming. There would be some substance, perhaps, in the withdrawal of this Bill if there were an immediate prospect of some considerable extension of the Workmen's Compensation Act, but 30s. for a man who is totally incapacitated—many such men have large families—is totally inadequate. In the event of death, £300 for a widow and a maximum of £600 for a widow with children is also totally inadequate for the loss of a breadwinner. There can be no justification for suggesting that the Measure should be withdrawn if there is no prospect of any Amendment in this important branch of the law. I hope that 824 the Mover will stick to his Motion, and that what has been said may bear fruit on some other occasion, when this matter has been looked to seriously by the Government with the intention of introducing a Measure somewhat on these lines.
§ 2.13 p.m.
§ Sir ALAN ANDERSON
We have listened to an interesting debate, which I divide into two parts. One part interests me much more, because it concerns one of the central problems of industry. I would deal with accidents suffered and the ill-health that follows afterwards. The other minor point on which we differ is whether a particular change in the law is desirable. I do not agree with the Bill. It would be a mistake. I am not prepared to argue the legal point of common employment. I am not particularly interested in it. There is a great deal more than that in the Bill. On the major point of ill-health and accident we are all practically agreed. An hon. Gentleman opposite, I think it was the hon. Member who seconded the Bill, said he did not care about the cost, or words to that effect. We all know what he meant and what he did not mean. He did not mean that if there was a waste in the collection of the money that was insignificant, still less that if the accidents that flowed from industry were increased and the cost went up in that way, that was incidental. What he certainly meant was that industry has to pay the proper cost of the accident; and that it cannot be avoided, and that this must be collected and the compensation spread out with the least possible spilling on the way and with the greatest fairness. That is what we are all trying to arrive at. The Proposer and Seconder of the Motion think that it can been he done by starting with this Bill, wiping out what appears to them to be an aromaly—this doctrine of common employment stopping the men from claiming under the Employers' Liability.
What really leads them to that strong opinion? I think that the first impulse is an objection to exceptions. To many minds, particularly legal minds, precision is very attractive and any exception or anomaly is bad. They look at this matter and find an anomaly or exception, and so they say "Let its sweep it away". What is the exception? Is it the exception that a man engaged in industry 825 should seek his compensation after an accident by insurance and without having to go to law for it, or is it better that he should have to go to law for it? My feeling is that if you wish to procure uniformity and sweep away that anomaly it would be much better to concentrate on the insurance and sweep away the casual gamble of an appeal to law. What is the next impulse in their minds? It seemed to me, after having listened to them, not such a prominent impulse, but it did seem that the usefulness of punishment in education was in their mind, that it might be good for the soul of the employer if he were punished. We often think that about other people; we do not often think it about ourselves.
But here are we in this House by far the greatest employers in this country. We do not employ directly, but we appoint Ministers and pay them handsome salaries and keep them in order by our advice to them. Would it help us if we were to be cast in tremendous damages of quite unknown and variable amount because some of these people who were acting for us had been guilty of negligence? We constantly hear from each other that these people whom we employ are being negligent. But I submit that correction which takes the form of a gamble is not the way for correcting dog or child or Minister or employé. It must be done in a much more steady way; and the correction imposed on the employer by insurance is known—he knows what he has to avoid, and he works for it. It only stands to reason that it will have more effect on him, it does have more effect on him, than what happened generations before.
Another impulse of the Mover and Seconder was benevolence, philanthrophy. They would probably say that by this change the man who is injured would in certain circumstances get a good deal more compensation. I submit that on balance he would not. You would put this temptation before a man who has been injured and who feels aggrieved. Someone comes to him and says, "If you go to law you have a chance of getting ten times as much as you would get if you take your insurance." I do not believe that on balance that would be at all good for the injured people. It would delay a settlement. The great thing in a case of 826 injury is to have the man patched up quickly and to let him have his payment quickly, with as little dispute as possible, and for him to keep out of the law. That is my feeling about the correct method.
Let us take a rather wider view than that. One hon. Gentleman asked, Why was this change made in 1837, so many years ago? I do not know legally why it was made and I do not care, but I submit that there has been a steady and rapid progression towards insuring and stabilising risks throughout the whole of our policy. In my trade of ships it is not so long ago that ships went to sea for several years, and no one knew anything about them. A ship might come back or not. The shipowner was a millionaire if she came back full of cargo, but if she did not come back he walked the streets and was bankrupt. Then insurance was discovered. It changed the whole outlook of a great number of enterprises. Did that damage the character of the shipowners? Not at all. They have improved out of all measure. This idea that a man can be helped and kept right from running improper risks by unknown and uncertain risks falling upon him is entirely incorrect.
I submit that to seek to remedy and recompense the accidents that flow and must always flow from industry by treating them by the orthodox method of insurance, by Workmen's Compensation, altered if necessary, is the correct way, and is in tune with everything we have been doing, and that if we go back on that we shall be making a most terrible mistake. In the method of going to law you have a wrangle and the result is a pure gamble. There is delay and very likely more is spilt than goes into the man's pocket. In the other method you have no dispute and no delay and the waste is reduced to a minimum. For these reasons I shall vote against the Bill.
§ 2.23 p.m.
§ Mr. STEPHEN
I have listened to the Debate with very great interest. A significant point that has struck me is that so far no one has been willing to defend the doctrine of common employment which this Bill is seeking to remedy; not one of those who have spoken is willing to defend the legal doctrine of common 827 employment, but they are insisting that it shall remain. The hon. Member who has just spoken gave utterance to various platitudes with regard to benevolence and accidents and shipping insurance, which did not seem to be very relevant. The point is that the Bill seeks to remove a legal doctrine which no one so far has been willing to defend.
One reason given by the Attorney-General was that workmen's compensation had introduced a new principle in dealing with accidents, and that, because of this new principle in dealing with accidents under workmen's compensation, we should not trouble about this anomaly or injustice—for it is an injustice to a great many workpeople. I should have been encouraged if the Attorney-General had told us that he was going to introduce legislation at an early date in connection with workmen's compensation, greatly to increase the amounts and so on; but all that he did was simply to utter a few kindly words to the effect that perhaps something might be done in that direction. Nothing came from him, as a responsible member of the Government, that would hold out any hope of such legislation within the lifetime of this Parliament. I would ask him now whether there is any prospect, during the lifetime of this Parliament, of such legislation with regard to workmen's compensation? If the Attorney-General were in a position to-day to pledge his Government in that connection, it would be helpful. It still would not deal, however, with this legal anomaly, which should be removed.
Another point that I want to make is in reference to the question of cost. The hon. and gallant Member who seconded the rejection of the Bill dealt with the question of the cost to industry, and suggested that it would be an intolerable burden upon industry. If the removal of this anomaly is going to place a big burden upon industry, it would appear to me that the consequence of that argument is that at the present time a tremendous injustice is being done. If this is going to mean so big a burden upon industry, evidently many thousands of people are being denied what ought to be a legal right of theirs, because not even those who wish to reject the Bill will stand 828 for the doctrine of common employment—not one. I myself am doubtful whether the cost to industry would be anything like so great as is suggested. I do not want to overstate the case for the removal of this legal anomaly; I do not want to say that so many millions a year are being lost to the workpeople; but I am drawing the attention of the House to the fact that, if the opponents of the Bill are correct, it is they who are stating that the injustice is so great that it means that workpeople are being denied millions that the employers ought to be paying and are lot paying. There is also the question whether this should be done by a private Member's Bill or not. It is obvious to me that the introduction of this Bill brings the question more into the forefront. and even if the Bill does not receive a Second Reading to-day, I will prophesy that a Government will he compelled to deal with the matter in the not distant future. It is only in this way that we shall be able to get the injustice removed. I think we owe a, great debt of gratitude to the hon. Member for East Rhondda, (Mr. Mainwaring) for bringing forward his Bill to-day. I believe that all decent employers as well as workpeople would welcome the removal, of this anomaly.
The point was made by the hon. and learned Member for Bridgwater (Mr. Croom-Johnson), that. if this anomaly were removed, it would encourage litigation—that many workpeople would have a very different election to make as to whether they would proceed in this way or under workmen's compensation. He suggested that the other branch of the profession than that to which he and I belong—the solicitors or the writers—would take the line of advising their clients not to proceed under workmen's compensation, but under employer's liability. The indications of my experience and consultation with members of the legal profession are all the other way. The great majority of solicitors are not willing to encourage their clients to go on employer's liability if the case is at all doubtful They would not get their costs, and they are not prepared to spend a lot of mosey in pursuing a case unless they do. They have to live, like other people. But very often a solicitor will advise his client to go under workmen's compensation rather than under employer's liability, because, if he goes 829 under workmen's compensation, he is practically assured of getting a certain amount out of the case. I think the House should get out of their minds the idea that this is going to involve a whole lot of needless litigation.
Then the hon. and learned Member asked, will the worker, after all, get so very much out of this if the anomaly is removed, because, while he may still make use of his rights under workmen's compensation if he fails under employer's liability, he will be burdened with the costs, and, because of that burden of costs, it will be useless to go under workmen's compensation. I would point out to the House, however, that the work-people have their unions, and the union will be behind the individual and will not allow the costs under employer's liability to be deducted from the remedy under workmen's compensation. It is a legal liability that his union undertakes for him, and he will get his workmen's compensation, and he has the right to the other remedy. The position at present is that it is becoming almost impossible to proceed under employer's liability because of this legal doctrine which every one is agreed is wrong. I appeal to the House to give the Bill a Second Reading so that this very important subject may be ventilated and the position cleared up in Committee. I believe that decent employers are anxious that workers who have had accidents should not be limited in this way. But the good employer is often at the mercy of the bad employer. The bad employer is responsible for a whole lot of things that are wrong in connection with the working of industry. Decent employers also will be put in a much better position if this legal injustice is brought to an end. I hope since there are to be no whips that hon. Members will exercise their liberty and will have in view the interests of the great proportion of their constituents and see that they are given full rights of citizenship in the removal of this legal liability.
§ 2.37 p.m.
§ Mr. ERRINGTON
In regard to the point that the hon. Member has made as to costs, it is clear under Section 29 of the Workmen's Compensation Act that the costs of an unsuccessful adventure in litigation can be deducted from the compensation payable. It seems to me that, if the Bill were passed, there would be a most alarming increase in litigation. 830 People would think they had an opportunity of getting large sums of money under highly doubtful conditions. If that is the case, it is a thing that one should be slow to support. In 1894, when the matter was carefully considered by the Labour Commission, it was decided to branch out in this form of legislation upon the lines of insurance as against the ordinary Common Law line of liability of employers for negligence. With regard to another point that the hon. Member made, that the cost to industry was the measure of what the workers were losing, I do not think it is accurate to say that because there would be great cost to industry if this common employment rule were abolished, all the advantages of it would not by any means go to the workers who hope 10 benefit there from. I think this proposed abrogation of the Common Law rule goes much too far. We ought, however, to be very grateful to the proposer of the Bill because he will have directed our minds to the in some cases very unsatisfactory condition in which the law is in regard to these matters.
There are elements in the Act of 1880 which I believe to be of great value in the limitation of common employment. Liability in regard to defects in plant, in regard to superintendence, in regard to cases where orders have been given or acts done negligently under by-laws are all dealt with by that Act and all are exempted from common employment. That is a very big step indeed. But, unfortunately, I think the Act can be described as a thoroughly bad one. Damages are limited to three years' earnings. There must be notice given within six weeks. The action must be brought within six months and it must be brought in a county court. That may be very difficult, because there may be concurrent actions both at Common Law and under the Act. The meaning of "workman" is very limited indeed, and there is always the possibility of contracting out of the Act. Those are bad features, but the exemptions from common employment are good and excellent ones and, if something were to be done on the lines of improving the employers' liability position, it should be done in an amendment of the rules under the 1880 Act.
If you repeal the whole principle of common employment you are plunging into a sea the depth of which you cannot 831 well estimate. If you secured that the exceptions contained in the 1880 Act were subject to reasonable, sensible and easily applicable rules you would take a great step forward. We ought to be grateful to the hon. Member who introduced the Bill because it directs our minds to some of the legislative insufficiencies of the position, but I shall vote against it because I believe it is altogether too drastic. It may well be that the development of workmen's compensation may be a much more valuable way of approaching the problem that we all have at heart—the benefit of the working people of the country.
§ 2.44 p.m.
§ Mr. KINGSLEY GRIFFITH
I heartily congratulate the hon. Member, because he is the first opponent of the Bill who has given any recognition to what it is about. He is the first who has dealt really systematically with the doctrine of common employment and given an indication that he believes it ought to be retained. The hon. Member for the City of London (Sir A. Anderson) said he was not interested in the doctrine of common employment. There is nothing else in the Bill but the abolition of the doctrine of common employment.
§ Mr. GRIFFITH
If the hon. Member is interested in the consequences, he must be interested in the cause, and as no one has denied the cause, it is to be assumed that they face the consequences, which is what they are so reluctant to do. For a great part of the speech of the hon. Gentleman the Member for the City of London, any stranger who had not read the Bill or heard the rest of the debate would have imagined that the question before us was the abolition of the Workmen's Compensation Acts and the substitution of other procedure in the courts of law. There is no such suggestion at all. I have never listened to a Bill which has been clothed in such a complete cloud of mystification on the other side in an unwillingness to pass the comparatively simple proposal which it puts forward. We are told that it is not suitable as a private Member's Bill, and it must be a horrible thought to the hon. Member who moved it that if and when it gets upstairs in 832 Committee, he will be without the help of Government machinery in dealing with Amendments. I do not see what Amendments he will have to face. The Bill is so short that you could hardly amend it. If we as Private Members are not to be allowed to bring in a Bill of about 10 lines, including the lines that give the short Title and say that the Act shall not apply to Scotland, we had better give up our rights altogether. The suggestion really is—and there is no escape from it—that a Private Member must not bring in anything that is of any importance. If it is important he must not touch it. In that case we had better give up our Fridays, and our Wednesdays too, and let the Government get on with the job. If we do retain this time we should try to make good and important use of it.
The learned Attorney-General, whom I must except from the condemnation that the subject of the Bill gas never dealt with, tried at one point to put up the defence of making a distinction between the employer whose servent injures a third party, and the employer whose servant injures a fellow-workman. He indicated a possible line of distinction which would have justified the doctrine of common employment that, whereas a fellow-workman has other rights under the Workmen's Compensation Acts, the stranger or traveller in a railway train has not. Obviously, that was not the distinction upon which the doctrine of common employment is founded. Up to the time that Common Law was brought in the workman had no rights under workmen's compensation. What the learned Attorney-General says is that this distinction, although bad in its history and inception, has become good accidentally by reason of the passing of the Workmen's Compensation Acts. He must mean that. There is nothing else he could mean. The learned Attorney-General, in making the Workmen's Compensation Acts and the decisive fact of their existence a reason why we should cling to something quite indefensible in principle is falling into some error, though not to the extent of the hon. Member for the City of London. He is assuming that you have to make a choice between getting your money under workmen's compensation rules and getting it in courts of law. It is put as though it were an alternative, when obviously it is not an alternative.
833 An hon. Member above the Gangway intervened in the course of the speech of the hon. and learned Member for Bridgwater (Mr. Croom-Johnson), and pointed out that it is not an alternative between getting an assured small sum in compensation without having to prove negligence, and, on the other hand, taking on the burden of proving negligence and getting a larger sum. The workmen should have them both, and, to a certain extent, at present he has them both. If he can track negligence to the employer, he has the alternative before him now. All that the Bill seeks to do is to give him an unhampered right of exercising one of the alternatives with which he is hampered now by the survival of a doctrine, which everybody on that side of the House, except the last speaker, has declared to be illogical and impossible. Confronted with an opposition of that kind, this House should have no alternative except to vote for the Bill. Hon. Members are being led away by the elusive hints on the part of the Attorney-General that this thing could be done perhaps much better in another way. Everybody knows that nothing will be done in another way, and I hope that the hon. Members in charge of the Bill will not be led away by the voice of the siren. They have something, at any rate, before the House upon which they can get a vote. In a matter where justice is so enormously involved they had better go to a Division and go down fighting, than withdraw the Bill in the hope of something which would not meet their case when they got it, and which they would probably never get at all.
§ 2.51 p.m.
§ Sir R. YOUNG
I assure the hon. Member for West Middlesbrough (Mr. Griffith) that we shall go to a Division on this Bill and get an expression of the opinion of the House on its merits. There has been a very interesting discussion in relation to the proposal before the House. It has been very largely a discussion between legal gentlemen, which I shall not endeavour to follow, but I should like to say one or two things and to emphasise what has been said by other hon. Members. It has been assumed, and by the learned Attorney-General, that if this Bill became law there would be a large transference from compensation law to Common Law on behalf of the workmen. I assure him from 834 my experience as general secretary of a large trade union that many of the cases of accidents are very carefully considered by the responsible officials of the trade union in the first place, and by the lawyers of that trade union before any action is taken. In 99 cases out of 100 the trade union officials and the legal gentlemen whom they employ would make perfectly sure that they had a very good case before they attempted to operate any new liberty that might be given them under this Bill.
From my own personal knowledge a good many of the cases under the ordinary workmen's compensation law have time and time again been accepted through that law, instead of going to Common Law because of some risk that might be involved. We are certain in our own minds that if we had taken some of the cases under the Workmen's Compensation Acts to Common Law we should have obtained very much better results for the men concerned. In my trade union experience, under Common Law, on many occasions, we have received from the courts much heavier expenses than we would have obtained under the Workmen's Compensation Acts. I am certain that there is no fear of a large transference of cases from Workmen's Compensation law to Common Law under this Bill. Therefore, the fear of litigation need not be very great in the minds of hon. Gentlemen opposite.
It is not the intention of those who have put forward the Bill—and I am certain that it is not the intention of those who would be helped by the Bill—to take any risks in relation to expensive litigation. The objections raised to many solicitors or people who hanker after catching people who are injured in order to persuade them to put their cases into their hands for the purpose of getting their share of the damages need not be taken into very great consideration. As I have pointed out, in many cases workmen are already protected from the operations of those who set to work for the purpose of endeavouring to secure a share of an injured man's compensation. I want to say on behalf of the trade union movement of the country, or at all events of my own trade union, that the Workmen's Compensation Acts have been a great boon to the workers of the country. They have enabled us in 835 many cases without difficulty to obtain a certain amount of satisfaction in respect of accidents that occur in the works.
The Bill before the House is to remove a disability on thousands of men who may be injured through the negligence of their fellow-workmen, and may be seriously hurt. The result of serious accident under Compensation law is that the compensation is small, and we want to give the men a chance of getting better compensation. We heard to-day of a case where a man lost both arms. He took the case under Common Law and received £10,000, whereas, under the Compensation Acts he might have got £300 at the very most, or even £150. You have to take into consideration more than the actual hurt to the man himself. When a man is injured in the workshop he is not the only sufferer. He suffers the pain as the result of the accident, but if this young man who lost both his arms had been unable to go to Common Law and had been hurt through the negligence of a fellow-worker, if he were married, what about his wife and family and those who are dependent on him, not only immediately, but in after life? We are of the opinion that this is an injustice inflicted on workmen. We are not asking for anything else than the removal of an anomaly. The anomaly is that he has not the right to choose between Compensation Law and Common Law if he is hurt by the negligence of a fellow-workman, and we want to give him that right. Therefore, we think that we are very moderate in our demand here. It has been urged here to-day that because, two years ago, a Committee which sat on a similar Bill came to the conclusion that they could not proceed further with it, this Bill ought not to be brought in under the responsibility of a Private Member as a Private Members Bill. We might, in those circumstances, be debarred from raising the question until the Government thought fit to do so. Surely the fact that a similar Bill was rejected, or not proceeded with, two years ago gives us a very strong reason for coming again today and asking the Government what they intend to do. Are they going to improve the Workmen's Compensation Acts to any great extent if they are not prepared to accept this Bill?
836 The hon. Gentleman who spoke before me will realise that we agree with him that nothing decided in the past should debar hon. Members from bringing in a Bill for the purpose of renewing discussion on something which occurred two years ago. I, myself, have been in a large engineering shop for 15 years and I have seen what could occur by the negligence of a fellow workman. If a Bill of this kind were passed, the employers would take good care that much of the negligence of a fellow-worker would not occur and there would be less risk of accident and a smaller charge on the employer by the compensation laws if this Bill were passed. I have worked in an engineering shop where I ran the risk of accident every day. The employer under the 1880 Act, is, of course, under liability for himself and his chief officials.
We have been asked if we had considered the expense to the nation in respect of this Bill, and it has been truly said that it is not our job to go into investigations in relation to that matter. We have been asked if we realised how many men it would throw out of work. I suppose these questions were asked in the same way before the introduction of the Workmen's Compensation Acts. How many men does the £11,000,000—to quote my hon. Friend—throw out of work now? It is to be regretted that we should run the risk of having thousands disabled for life. But compensation has to be paid even though it does mean increased cost and it might throw a few men out of work, justice has to be done, and it is only justice we are asking—the justice of being allowed to say "I am not going under the workmen's compensation law to make my claim, I am going to plead the negligence which has involved me in this accident and which, for the purpose of after life, may be a disablement for all time and therefore I ought to receive much more heavy damages than I would otherwise get."
After all, is it so very difficult to compute the cost of this? Not so long ago there was no third party insurance in relation to motor-cycles and things of that kind, but there was no talk then about the increased cost. You can meet this, as you meet everything else, by insurance, and the insurance world is now so skilful that it would have very little difficulty after the experience of a year 837 or two in coming to the correct figure that ought to be charged for this liability. The liability, in my opinion, would not be so great, and the very fact that the employer was under this obligation to meet the injured man under Common Law would make him take steps whereby fellow-workers of the may-be injured man would take greater care to prevent such accidents from happening. Therefore, I say that this Bill we have introduced, in my opinion, need not be highly contentious. It extends the principle to enable a workman to have a choice under which law he shall appeal for compensation for his accident. Give him that right. He may avail himself of it and in availing himself of it he will, in my estimation, bring about a condition of things which will result, in the future, in accidents being fewer than they are, and perhaps less costly to industry as well as to the nation.
§ 3.5 p.m.
§ Sir JOHN WITHERS
I intend to support the Bill. A good deal has been said about the attitude of my branch of the legal profession. There seems to be an idea that we should start actions with the possibility of getting more work. I can assure hon. Members that that is not the practice in these days, because workmen are very carefully looked after by their trade union and, further, no solicitor of any standing would seek to bring actions of that kind. The hon. and learned Member for Bridgwater (Mr. Croom-Johnson) has talked about the complications of the Bill. Can anyone imagine a more simple Measure? Of all the Bills I have ever seen this is the least complicated. It is beautifully drawn, and I heartily congratulate everybody connected with it. The point is simple. There is an anomaly which everybody admits is wrong, and all that the Bill says is:it shall not be a defence to an employer who is sued in respect of personal injuries caused by the negligence of his servant, that such servant was at the time such injuries were caused in common employment with the person injured.Can any one conceive anything simpler? I cannot. The hon. Member for the City of London (Sir A. Anderson) has brought forward a number of collateral considerations, but they are not material to the point. It is quite easy to cover 838 all consequences which may arise by insurance; and there will be no difficulty to anybody concerned. The insurance will have to be extended to cover this particular risk. As to the Bill being introduced by a private Member, if the Government do not act in a matter of this kind, how can it be brought forward except by a private Members Bill? This is a very useful Bill. Reference has been made to the embarrassment of a private Member in Committee with everybody attacking him on this complicated subject. It is a complicated Bill of one Clause. It seems to me that hon. Members who are opposing the Bill have just sat down and tried to think out all sorts of theoretical ideas for the sake of opposing it. The whole thing is trumpery and absurd; and I shall vote for the Bill.
§ 3.9 p.m.
§ Mr. BANFIELD
I want to express my appreciation to the hon. Member for Cambridge University (Sir J. Withers) for putting before the House the logical reasons why the Bill should be supported. Every hon. Member who has spoken has agreed that there is something which should be altered, that there is an anomaly which should be dealt with, but those who oppose the Bill have then said that the time is not opportune, that it should not be dealt with in a private Member's Bill, or that, although they are in sympathy with it, they are going to vote against it. These private Members' Bills are brought forward in order to afford an opportunity to private Members to give a free and unrestricted vote. The Members are not tied down by the wishes of the parties, and the parties do not attempt to tell them into which Lobby they should go. If it can be proved, as it has been proved to-day, that here is a Bill on which there is almost common agreement, that here is a matter which ought to be remedied, cannot hon. Members for once sink their party bias and party prejudices and vote on the justice of the Bill, apart from any other consideration?
I make that appeal because I was very much interested in the speech made by the hon. Gentleman the Member for the City of London (Sir A. Anderson). There was a speech which shows the vast difference between City men and those who, like myself, have to deal with ordinary men in their ordinary life. The 839 hon. Member admitted that he was not interested in the justice of the Bill and scarcely interested in the meaning of the Bill, but he proceeded to argue by all kinds of devious routes that there were at any rate reasons for his voting against it. I was particularly interested by the argument which has been put forward by more than one hon. Member opposing the Bill. They have said that this Bill would lead to increased costs in industry and increased litigation. In this connection I think I may claim to have had a very great deal of first-hand experience and to have a great deal of personal knowledge on the matter. Questions of compensation represent the ordinary, every-day work of the general secretary of a trade union, as I am. We are particularly careful, as far as possible, to keep our cases altogether out of the Law Courts.
We have had it impressed upon us many times that the ordinary trade union official is capable of settling compensation cases and cases affecting trade union members in an even better manner than members of the legal profession. We are not very much inclined to go to law if it can be avoided, or if the other side is at all reasonable. Nevertheless, we do claim, not only on behalf of members of trade unions, but on behalf of all workers, that they should at least have the ordinary rights of going to the courts. I have to-day heard Members of the legal profession discuss this problem. One of the most unfortunate things about compensation cases and accident cases is that very often a man with a good title to legal redress is unable to go to the courts simply because of his poverty, and because he does not happen to belong to a trade union organisation. It is a sad thing to think that some members
§ of the legal profession who are not very particular when they come to poverty-stricken people, offer to take up such cases, with the result that very often the lawyer gets far more out of the case than the unfortunate man who has had the accident.
§ The Attorney-General has poured cold water on this Bill. He did not attempt to fight it on the justice of the case and he expressed some sympathy with it, but surely if the Government and the Attorney-General can see for themselves that there is really a case here which requires some inquiry, cannot they at least promise some redress? Is there no chance of getting the whole law of Workmen's Compensation reviewed? We, on this side, have from time to time put forward new proposals for dealing with all these matters of compensation, but up to now we have not been successful in getting any of them adopted. Hon. Members opposite ought to remember that they are sent here, in many cases, by the votes of working people. I heard a speech in this Debate by the hon. Member for Bootle (Mr. Errington). That is an industrial constituency in which there is a high proportion of accidents. I suggest that hon. Members opposite should bear in mind that workers, both men and women, who vote for them expect that they, as well as Members on this side, will help in getting justice done in cases of the kind that have been described to-day. There is no case against the Bill. It is a simply-worded Bill, it deals with a single point, it presents no difficulties and I hope that hon. Members opposite will take the view that this is a matter which ought to be remedied and support the Second Reading of the Bill.
§ Question put, "That the word 'now' stand part of the Question."
§ The House divided: Ayes, 85; Noes, 146.841
|Division No. 110.]||AYES.||[3.17 p.m.|
|Adams, D. M. (Poplar, S.)||Dalton, H.||Grenfell, D. R.|
|Adamson, W. M.||Davles, C. (Montgomery)||Griffith, F. Kingsley (M'ddl'sbro, W.)|
|Attlee, Rt. Hon. C. R||Day, H.||Groves, T. E.|
|Banfield, J. W.||Dobbie, W.||Hall, J. H. (Whitechapel)|
|Baxter, A. Beverley||Dunn, E. (Rother Valley)||Henderson, J. (Ardwick)|
|Broad, F. A.||Ede, J. C.||Henderson, T. (Tradeston)|
|Browne, A. C. (Belfast, W.)||Edwards, A. (Middlesbrough E.)||Hicks, E. G.|
|Buchanan, G.||Edwards, Sir C. (Bedwellty)||Jenkins, A. (Pontypool)|
|Burke, W. A.||Evans, D. O. (Cardigan)||Jones, Morgan (Caerphilly)|
|Charleton, H. C.||Fletcher, Lt.-Comdr. R. T. H.||Kelly, W. T.|
|Cluse, W. S.||Foot, D. M.||Kennedy, Rt. Hon. T.|
|Clynes, Rt. Hon. J. R.||Gallacher, W.||Lansbury, Rt. Hon. G.|
|Cocks, F. S.||Garro-Jones, G. M.||Lathan, G.|
|Compton, J.||George, Rt. Hon. D. Lloyd (Carn'v'n)||Leach, W.|
|Daggar, G.||Green, W. H. (Deptford)||Lee, F.|
|McEntee, V. La T.||Roberts, W. (Cumberland, N.)||Tinker, J. J.|
|MacLaren, A.||Rowson, G.||Viant, S. P.|
|MacNeill, weir, L.||Seely, Sir H. M.||Walker, J.|
|Magnay, T.||Shaw, Captain W. T. (Forfar)||Watkins, F. C.|
|Mathers, G.||Short, A.||Wilkinson, Ellen|
|Messer, F.||Simpson, F. B.||Williams, E. J. (Ogmore)|
|Montague, F.||Smith, Ben (Rotherhithe)||Williams, T. (Don Valley)|
|Oliver, G. H.||Smith, E. (Stoke)||Windsor, W. (Hull, C.)|
|Paling, W.||Smith, Rt. Hon. H. B. Lees- (K'ly)||Withers, Sir J. J.|
|Parker, H. J. H.||Smith, T. (Normanton)||Young, Sir R. (Newton)|
|Peters, Dr. S. J.||Stephen, C.|
|Pethick-Lawrence, F. W.||Strauss, G. R. (Lambeth, N.)||TELLERS FOR THE AYES.—|
|Potts, J.||Taylor, R. J. (Morpeth)||Mr. Mainwaring and Mr. A.|
|Quibell, J. D.||Thorne, W.||Henderson.|
|Ritson, J.||Thurtle, E.|
|Agnew, Lieut.-Comdr. P. G.||Evans, Capt. A. (Cardiff, S.)||Ormsby-Gore, Rt. Hon. W. G.|
|Astor, Visc'test (Plymouth, Sutton)||Fildes, Sir H.||Palmer, G. E. H.|
|Astor, Hon. W. W. (Fulham, E.)||Fox, Sir G. W. G.||Peake, O.|
|Baldwin, Rt. Hon. Stanley||Fyfe, D. P. M.||Penny, Sir G.|
|Balfour, Capt. H. H. (Isle of Thanet)||Gilmour, Lt.-Col. Rt. Hon. Sir J.||Percy, Rt. Hon. Lord E.|
|Beaumont, Hon. R. E. B. (Portsmlh)||Giuckstein, L. H.||Pilkington, R.|
|Belt, Sir A. L.||Gower, Sir R. V.||Plugge, L. F.|
|Bennett, Capt. Sir E. N.||Grattan-Doyle, Sir N.||Ponsonby, Col. C. E.|
|Blair, Sir R.||Gretton, Col. Rt. Hon. J.||Purbrick, R.|
|Blindell, Sir J.||Gridley, Sir A. B.||Raikes, H. V. A. M|
|Bossom, A. C.||Grimston, R. V.||Ramsay, Captain A. H. M.|
|Bowater, Col. Sir T. Vansittart||Hanbury, Sir C.||Reed, A. C. (Exeter)|
|Briscoe, Capt. R. G.||Hannon, Sir P. J. H.||Reid, W. Allan (Derby)|
|Brown, Brig.-Gen. H. C. (Newbury)||Hellgers, Captain F. F. A.||Remer, J. R.|
|Bull, B. B.||Heneage, Lieut.-Colonel A. P.||Rickards, G. W. (Skipton)|
|Burgin, Dr. E. L.||Hepburn, P. G. T. Buchan-||Runciman, Rt. Hon. W.|
|Burton, Col. H. W.||Hoare, Rt. Hon. Sir S.||Russell, S. H. M. (Darwen)|
|Campbell, Sir E. T.||Holmes, J. S.||Salmon, Sir I.|
|Cary, R. A.||Hope, Captain Han. A. O. J.||Samuel, Sir A. M. (Farnham)|
|Castlereagh, Viscount||Horsbrugh, Florence||Sanderson, Sir F. B.|
|Cazalet, Thelma (Islington, E.)||Howitt, Dr. A. B.||Sandys, E. D.|
|Cazalet, Capt. V. A. (Chlppenham)||Hudson, Capt. A. U. M. (Hack., N.)||Savery, Servington|
|Cecil, Rt. Hon. Lord Hugh||Hudson, R. S. (Southport)||Simon, Rt. Hon. Sir J. A.|
|Chamberlain, Rt. Hn. Sir A. (Br.W.)||Jackson, Sir H.||Smiles, Lieut.-Colonel Sir W. D.|
|Channon, H.||Jarvis, Sir J. J.||Smith, Sir R. W. (Aberdeen)|
|Chapman, Sir S. (Edinburgh, S.)||Keeling, E. H.||Somervell, Sir D. B. (Crewe)|
|Clydesdale, Marquess of||Kerr, Colonel C. I. (Montrose)||Southby, Comdr, A. R. J.|
|Cobb, Sir C. S.||Kerr, H. W. (Oldham)||Stanley, Rt. Hon. Oliver (W'm'l'd)|
|Cooke, J. D. (Hammersmith, S.)||Kimball, L.||Storey, S.|
|Craddock, Sir R. H.||Kirkpatrick, W. M.||Strickland, Captain W. F.|
|Cross, R. H.||Lambert, Rt. Hon. G.||Stuart, Hon. J. (Moray and Nairn)|
|Crossley, A. C.||Leech, Dr. J. W.||Sutcliffe, H.|
|Crowder, J. F. E.||Leighton, Major B. E. P.||Tate, Mavis C.|
|Davies, Major G. F. (Yeovil)||Lewis, O.||Thomas, Rt. Hon. J. H. (Derby)|
|Davison, Sir W. H.||Lindsay, K. M.||Thomas, J. P. L. (Hereford)|
|Dawson, Sir P.||Llewellin, Lieut.-Col. J. J.||Touche, G. C.|
|Denville, Alfred||Lloyd, G. W.||Tree, A. R. L. F.|
|Dixon, Capt. Rt. Hon. H.||Loder, Captain Hon. J. de V.||Tryon, Major Rt. Hon. G. C.|
|Dorman-Smith, Major R. H.||Loftus, P. c.||Tufnell, Lieut.-Com. R. L.|
|Dower, Capt. A. V. G.||M'Connell, Sir J.||Walker-Smith, Sir J.|
|Dugdale, Major T. L.||MacDonald, Rt. Hon. M. (Ross)||Wallace, Captain Euan|
|Duggan, H. J.||Macdonald, Capt. P. (Isle of Wight)||Ward, Lieut-Col. Sir A. L. (Hull)|
|Duncan, J. A. L.||Macnamara, Capt. J. R. J.||Williams, H. G. (Croydon, S.)|
|Dunne, P. R. R.||Margesson, Capt. Rt. Hon. H. D. R.||Windsor-Clive, Lieut.-Colonel G.|
|Edmondson, Major Sir J.||Maxwell, S. A.||Womersley, Sir W. J.|
|Elliot, Rt. Hon. W. E.||Mayhew, Lt.-Col. J.||Young, A. S. L. (Partick)|
|Ellis, Sir G.||Mills, Sir F. (Leyton, E.)|
|Elliston, G. S.||Moreing, A. C.||TELLERS FOR THE NOES.—|
|Emmott, C. E. G. C.||Morris-Jones, Dr. J. H.||Sir Alan Anderson and Colonel|
|Errington, E.||Nicolson, Hon. H. G.||Ropner.|
Main Question, as amended, put, and agreed to.
§ Words added.
§ Second Reading put off for six months.