Common Employment - Definition - Law Dictionary Home Dictionary Definition common-employment

Definition :

Common employment. The general rule that a master is liable for damage caused by the negligence of his servant has the exception that where the person injured is the fellow-servant of and engaged in common employment with the person whose negligence causes the injury, the master is not liable in an action at Common law. The principle upon which the exception rests is that 'a servant who engages for the performance of services for compensation does as an implied part of the contract take upon himself, as between himself and his master, the natural risks and perils incident to the performance of such services; the presumption of law being that the compensation was adjusted accordingly, or, in other words, that these risks are considered in the wages' [per Balckburn, J., Morgan v. Vale of Neath R. Co., (1864) 5 B&S 578]. For review of cases, see Bray, J., in Cribb v. Kynoch, Ltd., (1907) 2 KB 548. The doctrine applies in spite of difference in rank or grade between the two servants, e.g., a miner injured by the negligence of the general manager, Wilson v. Merry, (1868) LR 1 HL (Sc.) 326; or difference in the occupations of the servants, e.g., collier injured by negligence of mason and engineer, Coldrick v. Partridge, 1910 AC 77. 'One who volunteers to associate himself with the defendant's servant in the performance of his work, and that without the consent or even knowledge of his master, cannot stand in a better position than those with whom he associates himself in respect of their master's liability', per Erle, C.J., Potter v. Faulkner, (1861) 1 B&S 806. It seems that if the injured person be an infant of such tender years as to make it unreasonable to assume that he wittingly undertook the risk of negligence of his fellow-servant, the doctrine does not apply a boy of 14 is not of such tender years, Bass v. Hendon U.D.C., (1912) 28 TLR 317 (CA). The master is of course liable to his servant for his own acts of negligence, and, further, the defence of common employment will not be available to him if the negligence alleged consists in a breach of a statutory duty, Groves v. Britannic Co., 1909 (2) KB 146; nor in respect of claims under the Workmen's Compensa-tion Acts (q.v.).

The doctrine of Common Employment has been modified by the Employers Liability Act, 1880, which entitles a workman to compensation for injuries caused as follows as if 'the workman had not been a workman of, nor in the service of the employer, nor engaged in his work':'

(i) By reason of a defect in the condition of the works or plant connected with or used in the business of the employer, Fanton v. Denville, (1932) 2 KB 309 (defect in machinery'negligence of fellow servant'duty of employer); or (ii) by reason of the negligence of any person in the service of the employer who has any superintendence entrusted to him whilst in the exercise of such superintendence; or (iii) by reason of the negligence of any person in the service of the employer to whose orders or directions the workman was bound to conform where the injury resulted from the workman conforming to such orders or directions; (iv) by reason of the act or omission of any person in the service of the employer done or made in obedience to rules of the employer or to rules made with authority on his behalf; or (v.) by reason of the negligence of any person in the service of the employer who has charge or control of any signal, points, or train on a railway.

The Act, however, limits (i) and (iv) above by providing that in the case of (i) the employer shall not be liable unless the defect arose or was not discovered or remedied by the negligence of the employer or of his servant entrusted with the supervision of the works, plant, etc., and in the case of (iv) that the injury must result from a defect or impropriety in the rules, and that rules made or accepted by a Government department are not to be deemed defective, and, further, that the workmen mus thave drawn the employer's attention to the defect or negligence, if he knew of its existence, unless he was aware that the employer already knew. The amount recoverable is limited to three years' earnings, and the time within which actions may be brought is limited to six months from the date of the accident, or in the case of death 12 months from the date of death. Notice of injury must be given with in six weeks. The action can only be brought in a Country Court. Consult the Act itself and Clerk and Lindsell on Torts; and see MASTER AND SERVANT and WORKMEN'S COMPENSATION ACTS.

As to scienter and common employment, see Knott v. L.C.C. (1933) 175 LT 282.