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 EMPLOYERS' LIABILITY. 
 
 LETTER 
 
 FROM 
 
 LORD JUSTICE BRAMWELL 
 
 TO 
 
 SIR HENRY JACKSON, BART., Q.C., M.P. 
 
 4 
 
 LONDON: 
 
 P. S. KING, PARLIAMENTARY BOOKSELLER, 
 
 CANADA BUILDINGS, KING STREET, WESTMINSTER, S.W. 
 
 1880.
 
 Four Elms, 
 
 Eden Bridge, Kent, 
 
 June dth, 1880. 
 
 My dear Jackson, 
 
 I have, as you wished, put down in writing 
 my reasons for saying that the common notions of 
 lawyers as well as laymen, as to the reason of the 
 non-liability of the master in cases of common 
 employment, are wrong. While I was about it, I 
 thought I would deal with the subject generally. 
 Having done this, I determined to print it and 
 address it with this to you. 
 
 Yours very truly, 
 
 G. BRAMWELL. 
 
 Sir Henry Jackson, Bart., Q.C, M.P.
 
 ^ 

 
 ON THE 
 
 LIABILITY OF MASTERS TO WORKMEN 
 FOR INJURIES FROM FELLOW SERVANTS. 
 
 When a new law is proposed it may seem to 
 some of little consequence what is the old law or 
 the reason for it. The only question, it may be said, 
 is, will the new law be good ? I should not think so. 
 Those who propose to make a law, in truth propose to 
 alter what exists, and should give a good reason for 
 the change in all cases. But most certainly should 
 they do so when the new law is proposed on account 
 of some alleged hardship or anomaly in the old law. 
 This is the case in the proposed alteration of the law 
 as to the liability of employers for neghgence of a 
 servant causing damage to a fellow servant. It is 
 said that the existing law is anomalous, and that it is 
 an exception to a general rule that makes employers 
 liable for the negligence of their servants, a grievance 
 to workmen, and a grievance without justification. 
 It is somehow supposed that as a matter of natural 
 right, something that exists in the nature of things, 
 employers are liable for injuries occasioned by their
 
 servants^ negligence, and that to except fellow ser- 
 vants from this rule is unjust and unreasonable. 
 
 Now this is an entire mistake; and it is really 
 wonderful how not only those who are not lawyers, 
 but lawyers who ought to know better, are under the 
 impression I have mentioned. It becomes necessary 
 to begin at the beginning, and state some entirely 
 elementary rules of law. 
 
 The primary rule is, that a man is liable for his 
 own acts, and not for those of others. A man, as a 
 rule, is no more liable for the wrongs done by another 
 than he is for his debts. The cases in which he is 
 liable are exceptions to the rule, and not the rule. 
 I will proceed to state the exceptions. 
 
 1st. When a man undertakes to do or perform 
 any work, he undertakes that it shall be done or per- 
 formed with reasonable care and skill. If he does or 
 performs it himself and is negligent or unskilful 
 and damage results, he is liable. So he is if he 
 does or performs it not himself, but by agent or 
 deputy. For instance, if a smith's servant in shoeing 
 a horse hurts it by negligence, the master is liable ; 
 so would he be if he got a neighbouring smith to shoe 
 the horse and he injured the horse by his negligence. 
 So a railway company that undertakes to carry a 
 passenger from A to B, is liable for damage occasioned 
 to the passenger by the negligence of its servants; 
 so also is it liable if the damage was occasioned be- 
 yond its own line by the negligence of the servants
 
 of another company who were the agents of the first 
 company for the completion of the journey. For 
 example, if the contract of carriage was from London 
 to Inverness, and part of the journey was in the car- 
 riages and with the servants of a Scotch railway 
 company, the first company would be liable on their 
 contract that due care should be used throughout. 
 In these cases no question of master and servant 
 arises: the question is one of contract. The con- 
 tractor has not performed his contract. He has con- 
 tracted that a certain thing shall be done in a certain 
 way : he has not done it according to his contract, 
 either by himself or his deputy. The reason of this 
 liability is obvious. The parties have contracted for 
 care. In this case the servant or agent is not liable. 
 2nd. The next case in which a man is liable for 
 the act of another which causes injury is, where he 
 has caused or commanded that act. If A orders or 
 procures B to beat C, A is as much liable to C as 
 though he. A, had given all the blows. So if a man 
 employs a builder to build a house of such a size and 
 in such a place that when built it will obscure his 
 neighbour's lights, he is as much liable as though he 
 built the house with his own hands. This class of 
 cases also has nothing to do with the relation of 
 master and servant. The employer is equally liable 
 whether the person who did the act complained of 
 was his servant, or his agent and not his servant. 
 In this case the actual doer of the act — viz., the
 
 8 
 
 builder who built the house, the man who actually 
 did the wrong would also be liable. The reason of 
 this rule is obvious. The wrong has been done by 
 him who procured it as much as by the actual 
 doer, and the maxim qui facit per alium facit per se 
 applies. 
 
 3rd. There is a third class of cases in which a man 
 is liable for the act of another. If a servant — acting 
 within the scope of his authority — by negligence — 
 injures one of the outside world (an expression I will 
 explain presently), his master is liable. It Avill be ob- 
 served that four things are necessary to constitute this 
 liability. First the actual doer of the mischief must be 
 a servant of the person sought to be made liable. It 
 is not enough he is employed, if not as a servant. 
 If I employ my servant to pull down a wall, and by 
 his negligence he injures a passer-by, I am liable. If 
 I employ a firm of builders to do it, I am not Hable. 
 The same thing is true if I employ a working brick- 
 layer. I do not know that it is necessary to define 
 or describe a servant. Shortly, the relation of master 
 and servant exists where the master can not only 
 order the work, but how it shall be done. When the 
 person to do the work may do it as he pleases, then 
 such person is not a servant. Next, the servant 
 must be acting within the scope of his employment. 
 If my coachman takes my carriage and horses to give 
 his wife a lide and is guilty of negligence causing 
 damage, I am not liable. Next, the damage to be
 
 recoverable against the master must be the result of 
 negligence. If caused wilfully, the master is not 
 liable. If my coachman wilfully drives against any- 
 one or his carriage, I am not liable for the damage 
 resulting. Lastly, the person injured, to have any 
 remedy, must be one I have called of the outside world. 
 The master is not liable to anyone with whom he 
 has entered into some relation, unless such liability 
 was one of the terms of that relation. Thus, if my 
 servant drives over a stranger, I am liable. If my 
 friend is having a drive with me and is injured by 
 my servant's negligent driving, I am not liable, be- 
 cause it is not one of the terms of our relation. If 
 the passenger had paid me money to carry him, I 
 should be liable under the first head of liability, 
 because I had contracted with him that he* should be 
 driven with care. If my servant leaves a stumbling 
 block in the street in the course of his work and any- 
 body falls over it, I am liable. If he leaves a trap 
 door open in my house and my guest falls through, 
 I am not liable. The reason why I am not liable in 
 the cases in which I am not, is the general one I 
 started with, viz., a man as a rule is not liable for 
 the acts of others. But why is the master liable in 
 the case in which he is, viz., to the outsider? Many 
 reasons have been suggested. It has been said he is 
 liable because he has given the wrong- doer the 
 means of doing the mischief. But that is not so. 
 For if the act is wilful, the master is not liable.
 
 10 
 thouorh the means of mischief are the same. Nor is 
 
 o 
 
 a man liable who lends his carriage to a friend, how- 
 ever unskilful, who drives over and damages a third 
 person. Then it is said the master is liable under 
 the second head of exception I have mentioned, viz., 
 quifacitper alium faclt per se. But that is not true. 
 Because the negligence, the wrongful act, maybe con- 
 trary to the master's express orders. I tell my servant 
 never to drive in at a gate with " out " on it. He does 
 and causes damage ; I am liable. He drives without a 
 lamp, contrary to my orders ; I am liable if damage 
 ensues. Another reason ironically given, but which has 
 great practical effect is, that the master is liable because 
 he is a competent paymaster, while the servant usually 
 is not. There is another reason which exists in fact ; 
 whether good or bad, is another matter. A man is 
 walking on the Queen's highway and run over by my 
 servant. He may say, with some colour of fairness, 
 '' I was doing what I had a right to do. I was injured 
 by your servant. I had no voice in the choice of 
 him. I could only keep out of the risk of injury 
 from him by foregoing my right to walk in the public 
 streets. Therefore to make you and other masters 
 careful in the choice of servants to whom you give 
 the means of mischief, you and other masters must 
 compensate for that mischief when it happens." Now 
 I do not say that is a sufficient reason, but it is the 
 only one I know of, and it is not a reason applicable 
 to the case of one servant injunng another, for then
 
 11 
 
 each servant has a voice in the matter. The master 
 hiring a servant says, " Here is your work, here are 
 your fellow servants, work for me or not as you 
 please." The servant may say, '' I do not please so 
 long as so-and-so is in your service, for he is negligent." 
 There is then no general rule which makes 
 one man liable for the negligence of another. The 
 general rule is the other way. There are exceptions. 
 The case of one servant injuring another is not within 
 those exceptions nor the reason of them, but the con- 
 trary. It has been said the servant contracts himself 
 out of the right to compensation. It would be better 
 to say he does not contract himself into it. He can 
 if he and his master agree. Nay, he can stipulate for 
 compensation where there is no negligence. He does 
 not contract that his case shall be an exception to the 
 general rule that a man is not liable for the acts of 
 another. There is no injustice in this. There is in 
 the proposition the other way. For no one can doubt 
 that the dangers of an employment are taken into 
 account in its wages. No one can doubt that the 
 unpleasantness and risk of a miner's work add to 
 his wages. Put sixpence out of his daily wage of 
 five shillings as being on account of that risk, a sum 
 which he may save or use as a premium of insurance. 
 What is the proposal of those who would make the 
 employer liable but this, that the servant shall keep 
 the premium in his own pocket and yet treat his master 
 as the insurer. I do not believe that this is under-
 
 12 
 
 stood, or it would not be asked for; but it is the 
 truth. 
 
 So much for the existing law, and so much for 
 the reason of it. Now for the proposed change and 
 the reason ^.»f it. 
 
 The largest proposed change is, that the master 
 should be liable to his servant for the negligence 
 of a fellow servant. Why? I have shown that 
 the supposed grievance does not exist. That it is not 
 a natural right that the master should be liable nor any 
 thing that exists in the nature of things. That it is 
 reasonable a railway company should be liable to a 
 passenger for the negligence of its servants, because 
 it has so contracted, and that it should not be 
 to one of its own servants, because it has not 
 so contracted. We are to start afresh then and make 
 a new rule. Why? Why if I have two servants, A 
 and B, and A injures B and B injures A by negligence, 
 should I be liable to both when if each had injured him- 
 self, I should not be to either.* There can be but one 
 reason for it, viz. — That on the whole, looking at the 
 interest of the public, the master and the servant,it would 
 be a better state of things than exists at present. Is 
 that so? Now we must start with this, that it is under 
 the present law competent for a servant to stipulate 
 with his master that the master shall be liable for the 
 
 * As has been amusingly asked, why, if the housemaid puts 
 damp sheets on the footman's bed and he leaves the scuttle at the 
 foot of the stairs and she tumbles over it, should the master be 
 liable for the damage lensuing ?
 
 13 
 
 negligence of a fellow servant, or in respect of any- 
 hurt or injury the servant may receive in the service. 
 So that the difference in the law, if changed as pro- 
 posed, would be this. At present the master is not 
 liable, unless he agrees to be ; on the change he would 
 be unless he and the servant agreed he should 
 not be. For I suppose it is not intended to forbid 
 the master and servant contracting themselves out of 
 the law. That is to say, if a man prefers to take 6s. 
 a-day and no liability for accidents, rather than 45. 6<i., 
 and the master prefers the former terms, it is not, as 
 I understand, proposed to prevent their entering into 
 a binding agreement to that effect. That would 
 be a most mischievous interference with the freedom 
 of contract, and would give rise to gross injustice 
 and fraud on the master. I cannot suppos'e anything 
 so outrageous, and proceed to consider what will 
 follow if the liability is optional, but to exist where 
 the parties have not agreed to the contrary. Every 
 prudent employer of labour will immediately draw up 
 a form to be signed by his workmen, that the master 
 shall not be liable for a fellow servant's negligence. 
 Or he will hire men somewhat on these terms, *' 5^. 
 a-day, and no liability ; 45. 6^., and liability, and I will 
 either compensate you myself, or apply the Qd. to an 
 insurance for you." I have put 6d.^ but I believe the 
 difference of a farthing would make the man choose no 
 liability. The present claim for liability, I repeat, 
 arises from the workman not appreciating that he
 
 14 
 
 receives the premium now, and yet would make the 
 master the insurer. 
 
 The great employers of labour will understand 
 the change in the law and guard against it. The mis- 
 chief and wrong will be in the case of men who, not 
 knowing of the change, will go on paying the wages 
 which include the compensation for risk, the premium 
 of insurance, and yet find they have to pay compen- 
 sation when the risk happens, and that they are 
 insurers though they have not received the premium. 
 
 What good will the new law do? None to the 
 workman, except in such cases as I have last men- 
 tioned. Cases of surprise and injustice. For where it 
 is known it will be guarded against. And even if the 
 law were made obligatory, in spite of bargains to the 
 contrary, it would not profit the servant. Because 
 it is certain there is a natural rate of wages, one fixed 
 by what neither master nor man can control, and 
 that if they are practically added to one way, they 
 will be taken from in another. If a manufacturer's 
 wages now are £10,000 in the year, and he is made 
 to pay compensation to the amount of £1,000 a-year, 
 his wages will fall to £9,000. He cannot charge 
 more for his produce because he has to pay more, 
 and if he could, his sales would diminish and injury 
 be done to the workman in loss of work. 
 
 What good then will the change do? The only 
 thing I have ever heard suggested is, that it will 
 make the master more careful in the choice of his
 
 15 
 
 iSorvants. I suppose it would. For it would not have 
 an opposite tendency. But is it just or reasonable 
 that for this small good masters should be made liable 
 to the extent intended. That to prevent one accident 
 through careless hiring of an incompetent fellow 
 workmen, the master should pay a thousand compen- 
 sations where he has done his best to get careful men. 
 Is he not under sufficient inducements to be careful 
 already? How rarely does an accident happen to the 
 workman without mischief to the master and without 
 an appeal to his charity. Further, I ask, would the 
 workmen like that system which has prevailed in 
 some employments, and to which the masters would 
 be obliged to have recourse, viz., not employing a 
 workman unless he produced a certificate of com- 
 petency and fitness from his former employer? Still 
 further, if some good would be done in this way,- 
 would there not be more mischief in another? Every 
 one knows the recklessness bred by familiarity with 
 danger. The man who would not open his lamp in 
 a mine at first, will do so after a time. Another thing. 
 It is a respectable feeling, though mistaken, which 
 prevents servants doing what they call " split " on 
 each other. The consequence being, that negligence 
 leading to danger by one workman is concealed 
 from the master by the others. Now I do not say 
 that workmen will injure themselves for the sake of 
 compensation ; but I do say, that whatever tends to 
 lessen their reason for care and good conduct as
 
 16 
 
 compensation would, tends to make them less careful 
 in themselves and more disposed to conceal want of 
 care in others. 
 
 I say, then, that the proposal to make the master 
 liable to a servant for the neolio-ence of a fellow ser- 
 vant, is contrary to principle, unjust, unreasonable, 
 and calculated to produce, if not no good, at least 
 more harm than good. It would be better to make 
 servants liable to their masters for the damage caused 
 by their fellows, than to make masters liable to them 
 as proposed. 
 
 One word as to the Government Bill. Its pro- 
 visions are needless or wrong. If the master, by an 
 act of omission fails in his duty to a servant, he is 
 liable, whether the failure was in himself personally, 
 in his manager, or other agent. If the injury arises 
 from an act of commission, then the reasoning I have 
 used is applicable. Let the actual wrong-doer be 
 responsible. No servant is bound to obey a command 
 attended with danger. 
 
 One word more. It is proposed to guard the 
 master by provisions that he shall not be liable if the 
 servant contributed to the injury. There are other 
 qualifications. In vain. The untruths told in accident 
 cases are prodigious. They will be told in such as 
 the Bill will give rise to. I foresee a frightful crop 
 of litigation if it passes. 
 
 6. BRAMWELL.
 
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