The Doctrine of Common Employment in Tort

The rule known as the doctrine of Common Employment was an exception to the rule that a master is liable for the wrongs of his servant committed in the course of his employment. The rule was first applied in 1837 in Priestley V. Fowler, developed in 1850 in Hutchinston v. York, New Castle and Berwick Rail Co. and it was firmly established as a part of English law by subsequent decisions. The doctrine was that a master was not liable for the negligent harm done by one servant to another fellow servant acting in the course of their common employment.

Position in England – Doctrine of Common Employment

In Priestley V. Fowler, the plaintiff, who was the defendant’s servant, was injured at his thigh due to breaking down of an overloaded carriage in the charge of another servant of the defendant. Since both the wrongdoer and the injured person were the servants of the same master, the doctrine of common employment was applicable and the master was held not liable. The essentials for the application of the defence of common employment are,
(1) The wrongdoer and the person injured must be fellow servants, and
(2) at the time of the accident, they must have been engaged in common employment.

The doctrine was supposed to be based upon an implied contract of service that the servant agreed to run risks naturally incident to the employment, including the risks of negligence on the part of his fellow employee. If the harm was caused by the employer’s own negligence, the employee could recover, unless the employee’s claim was defeated because of his contributory negligence. Mere knowledge of the risk by the workmen was, however, no defence.

If X was injured by the negligence of A’s servant and X himself also happened to be A’s servant, X could not recover for that from A. If X himself was not A’s servant, he could successfully bring an action against A. The doctrine was obviously unjust.

The doctrine was criticized, limited in scope by legislation and judicial decisions and eventually abolished by the Law Reform (Personal Injuries) Act, 1948.

The Employers’ Liability Act, 1880 provided for compensation only to certain classes of workmen in certain cases. Beginning with the Act of 1897, a scries of Workmen’s Compensation Acts were passed. The most important of these is the Workmen’s Compensation Act, 1925. The employer was bound to pay compensation for any personal injury caused to its servants by an accident arising out of and in the course of the employment.

In 1946, the National Insurance (Industrial Injuries) Act was passed. The Act provided for insurance to all persons employed under a contract of service or apprenticeship in Great Britain. It replaces the Workmen’s Compensation Acts. Three kinds of benefits are provided by the Act, viz., (i) injury benefit, (ii) death benefit, and (iii) disablement benefit. The benefit is to be paid out of the fund to which half the contributions are to be paid by the employer and half by the workmen. The administration of the Act is not done by the courts by the Ministry of National Insurance.

Apart from the various statutory provisions, the scope of the doctrine of common employment was curtailed by judicial decisions, two of which, Wilson and Clyde Coal Co. v. English5 and Radcliffe V. Ribble Motor Services Ltd. are worth mentioning. The doctrine was eventually abolished by the Law Reform (Personal Injuries) Act, 1948, which provided that :

“It shall not be a defence to an employer who is sued in respect of personal injuries caused by the negligence of a person employed by him, that the person was, at the time the injuries were caused, in common employment with the person injured.”

Position in India

In India, the matter came for discussion in a number of cases. In Secretary of State v. Rukminibai, the plaintiff’s husband, and employee in the G.I.P. Ry. was killed because of the negligence of a fellow employee. The Nagpur High Court allowed the action. Stone, C.J. expressed the view that the rule was an unsafe guide for decision in India. Pollock J. said : “Even if I were to hold that the doctrine is inequitable under modern conditions in England, I should not be prepared to extend it to India, as I consider that it would not be suitable to Indian conditions.” In T. and J. Brocklebank Ltd. v. Noor Ahmode, the Privy Council referred to the above stated decision of the Nagpur High Court but did not express any final opinion either way.

In a later decision, Governor General in Council v. Constance Zena Wells, the Privy Council held that the doctrine of Common Employment was applicable in India, although its scope has been limited by the Indian Employers’ Liability Act, 1938, S. 3 (d). In that case, the plaintiff’s husband, who was a fireman in the defendant’s railways was killed in an accident caused by the negligence of a fellow employee, a railway driver. The Privy Council held that the defence of common employment was available to the defendant and the plaintiff’s claim for compensation was dismissed. Apart from the Employers’ Liability Act, 1938, the scope of the doctrine has also been limited by the Workmen’s Compensation Act, 1923, the Employees’ State Insurance Act, 1948 and the Personal Injury (Compensation Insurance) Act, 1963 which imposed liability on the employers to compensate their employees in various cases.

Due to the difficulty created by the Privy Council’s decisions in Constance Zena Wells’ case, which still recognized the defence of Common Employment in India, Section 3 of Employers’ Liability Act, 1938 has been amended in 1951. By this amendment, the defence of Common Employment, as such has been abolished in India.

The doctrine of Common Employment is, therefore, only of historical importance, both in India and England.

The law with regard to the vicarious liability is evolving and developing. Over the years, the approach of the Courts is becoming more liberal and the trend is moving towards making the master liable for the acts of the servant.

Besides, the judicial pronouncements, the concept of no fault liability has been introduced in the Motor Vehicles Act, 1988. The trend is, thus, to responsible make the master responsible for the acts of the servant.