14. [SUMMONS TO A BONDSMAN FOR AN APPRENTICE. Employers and Workmen Act, 1875. Take notice that you are hereby summoned to attend at the day of 18, at o'clock in the on noon, to show cause why the court should not, in addition to or in substitution for any order to be made against the said defendant, order you to pay the amount of any damages which it may find that the plaintiff has suffered in consequence of the breach of the contract of apprenticeship made between you and the plaintiff and the defendant. Given under my hand and seal this 18. day of (L.S.) 15. ORDER ON A BONDSMAN FOR AN APPRENTICE TO PAY Damages. Employers and Workmen Act, 1875. day of of the Defendant. 18 the sum of It is adjudged that the said bondsman do pay to the plaintiff, on or before the pounds for damages suffered by him in consequence of the breach of the contract of apprenticeship made between the plaintiff, defendant, and the said bondsman; and if the same be not paid as ordered, it is hereby further ordered that the same be levied by distress and sale of the goods and chattels of the said bondsman. Given under our hands and seals this day of 18 16. PLAINT AND MINUTE Book. Employers and Workmen Act, 1875. COSTS. For entry of every plaint, including summons thereon For every undertaking given by way of security 2 0 N.B.-Where the sum claimed exceeds 11., or the sum in respect of the non-payment of which the summons for or order of commitment or warrant of distress issues exceeds 17., an additional fee of one shilling on each fee shall be taken. For mileage in serving or executing process,) Such reasonable cost and for cost of conveying to prison. For affidavit and postage 29th August, 1877. as may be allowed by the Court. CAIRNS, C. Subsequent Proceedings. CHAPTER XV. THE EMPLOYERS' LIABILITY ACT. THE Employers' Liability Act was passed to undo the effect of certain decisions noticed in Chapter XXIX., Part I. A series of cases beginning with Priestley v. Fowler (a), had laid it down that a master is not responsible to servants for the acts of their fellow servants. Some of the decisions were of doubtful justice; and the reasons given for them were conflicting and far from satisfactory. A Select Committee of the House of Commons, which investigated the subject, reported in 1877, in favour of a change in the law. "Your committee are of opinion," they said, "that in cases such as these, that is, where the actual employers cannot personally discharge the duties of masters, or where they deliberately abdicate their functions and delegate them to agents, the acts or defaults of the agents who thus discharge the duties and fulfil the functions of masters should be considered as the personal acts or defaults of the principals and employers, and should impose the same liability on such principals and employers, as they would have been subject to had they been acting personally in the conduct of their business, notwithstanding that such agents are technically in the employment of the principals. The fact of such a delegation of authority would have to be established in each case, but this would not be a matter of difficulty. Your committee are further of opinion, that the doctrine of common employment has been carried too far, when workmen employed by a contractor, and workmen employed by a person or company who has employed such contractor, are considered as being in the same common employment." A bill carrying out the above suggestions was introduced (a) 3 M. & W. 1. into Parliament on the 17th March of 1879. It was withdrawn on 30th July of that year. It was re-introduced in February 1880, and referred to a Select Committee. In May, 1880, a bill was introduced, and after much discussion and considerable alterations, it was passed. It came into operation on January 1, 1881. Contracting out of the Act. Many workmen have contracted themselves out of the Act. Of the validity of such contracts there is no doubt. It is not contrary to public policy for a workman to agree to accept the risks of a lawful employment. As has been already explained (b), it is competent for an employer to invite persons to work for him in circumstances of danger; and if a workman, for the sake of wages, continue in dangerous employment with a knowledge of the risks, he must trust to himself to keep clear of injury (c). This view has, in fact, been taken by the Queen's Bench Division in Griffiths v. Dudley (d). The plaintiff, a journeyman pit-sinker in one of the defendant's collieries, was killed owing to the negligence of an inspector of machinery. A club or benefit society, called "The Field Box," raised a fund by weekly contributions from the workmen employed in the defendant's collieries. The defendant contributed to this fund a sum equal to the aggregate of the contributions of the workmen. The fund was used in giving the workmen surgical aid in case of personal injuries received in their work, a weekly allowance in time of sickness, in paying funeral expenses, and in making allowances to widows and families in case of the death of workmen. When the Employers' Liability Act came into operation, a meeting of workmen, at which it was not proved Griffiths attended, took place. The men agreed to accept the old arrangement, and the defendant (b) Chapter XXIX., Part I. (c) See also Bramwell, B., in Dynen v. Leach (1857), 26 L. J. Ex. 221; and McCawley v. Furness Railway Co. (1872), L. R. 8 Q. B. 57; 42 L. J. Q. B. 4 (passenger travelling "at his own risk"). (d) L. R. 9 Q. B. D. 357; 51 L. J. Q. B. 543; 47 L. T. N. S. 10; 30 W. R. 797. circulated among them printed conditions, by which all workmen were to be members of the club on the existing basis, and no workman, or in any case of death, no person entitled to look to the funds of the society for compensation, would be entitled to sue the defendant. Griffiths read these conditions, and continued to work as before, and to pay his subscription to the club. In an action by the widow, as executrix of the deceased, against the defendant, the county court judge gave judgment for her, on the ground that the contract was void for want of mutuality and consideration, and as being contrary to public policy. On appeal, this decision was reversed, the Court holding that such a contract was not contrary to public policy, and that the widow had no right of action. The ratio decidendi in this case seems to show that employers might contract themselves out of any section or part of the Act; e.g., they might agree with their workmen that information of defects mentioned in sec. 2, sub-sec. 3, be given to a certain specified "superior," and to him only. To support an agreement to give up claims to compensation under the Act, consideration of some sort is required; and if the contract with respect to this be in writing, the consideration must be expressed (e). Section 1 gives "the legal personal representatives of the workman and any persons entitled in case of death," "the same right of compensation and remedies against the employer as if the workman had not been a workman of, nor in the service of the employer, nor engaged in his work." As stated above, it was decided in Griffiths v. Dudley, that the widow of a deceased workman could not sue when the latter had contracted himself and his representatives out of the Act. The principle of Read v. Gt. Eastern Ry. Co. (f), applies to the right conferred by the statute. There it was held to be a good plea to an action under 9 & 10 Vict. c. 93, by the plaintiff as widow of (e) Chap. X. (f) (1868), L. R. 3 Q. B. 555; 37 L. J. Q. B. 278. |