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Author : Akshara Vijayakumar

The Doctrine of Common Employment was divided in two positions. That is, by Position of England and by Position of India.

Position in England

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 a employment. This rule was applied on 1837 in a case, Priestley v. Fowler, and developed on 1850 in a case, Hutchinson v. York, New Castle and Berwick Rail Co. And the doctrine was finally established as a part of English law by successive decisions. The main factor of this rule is that the master is not liable for the negligent done by one servant to another in their course of employment.

In Priestley v. Fowler, In this case, the plaintiff was a servant in a house and defendant was plaintiff’s master. The plaintiff went to break down the overloaded carriage of in the charge of another servant of the defendant. Unfortunately, Plaintiff was injured at his thigh due to the breaking. So here, since the wrongdoer and the injured person were the servants of same master or defendant. Therefore, the doctrine of common employment was applicable and the master was not liable in this case.

There are some essentials of application of the defense of common employment. They are as follows:-  

 *) The wrongdoer and the person injured must be fellow servants.                                                                                         

*) At the time of the accident, they must have been engaged in common employment.

The doctrine of common employment was based on an implied contract of service. Because the servant purposefully run the risk naturally to cause harm to the employment, including the risk of negligence on the part of his fellow employee. Suppose, if the harm was caused by the employer’s own negligence, the employee could recover. The employee will recover only unless the employee’s claim was defeated because of contributory negligence.

There is an illustration for this doctrine. 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 from A. If X himself was not A’s servant, he could have successfully recover the damages caused and bring an action against A.

The doctrine was criticized. So, it was abolished altogether by the Law Reform (personal injuries) Act, 1948, in the United Kingdom.                     

According to the employer’s liability Act, 1880, the compensation can be given to only certain classes of workmen.

Later, on 1897, a series of Workmen’s Compensation Act were passed. The most important of these is the Workmen’s Compensation Act, 1925. Here, the employer was bound to pay the compensation for any negligence or compensation for any kind of injury caused to the servants in the course of employment or not.

The National Insurance Act (Industrial Injuries) was passed in 1946. This Act says that, all the persons will provide insurance who employed under a contract of service. And these Act replaces the Workmen’s compensation Act.

The National Insurance Act, provides 3 benefits. They are as follows:

1) Injury benefits

2) Death benefits

3) Disablement benefits

Benefits are paid out by funds. But half the contributions are paid out by the employer and workmen. All the administration of the national insurance act is done by the Ministry of National Insurance. Not by the Court.      

Apart from the various statutory provisions, the scope of doctrine of common employment was reduced by judicial decisions. Two of the cases which lead to the decision was, Wilson and Clyde Coal Co. v. English and Radcliffe v. Ribble Motor Services Ltd. 

Position of India 

In India, the matter doctrine of common employment discussed in number of cases. In a case, Secretary of State v. Rukmini Bai, the plaintiff’s husband and employee in the G.I.P.Ry. Was killed because of the negligence of a fellow employee. Later, the Nagpur High Court allowed the action. 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. In a later decision, Governor General in Council v. Constance Zena Wells, the Privy Council held that doctrine of common employment was possible in India. But its scope has been limited by section 3(d) of Indian employer’s liability Act, 1938. In that case, the plaintiff’s husband, who was a fireman, in the defendant’s railway was killed in an accident by the negligence of the fellow employee, a railway driver. Then, Privy Council held that the defense of common employment was available to the defendant and the plaintiff’s claim for compensation was dismissed. 

It is believed that, the doctrine was an exception to the principle of vicarious liability of the master for the negligent acts of his servants and agents. Over the years, the Court’s approachment is becoming liberal and the trend is making the master liable for the harm or negligence done by the servant. 

In Young v. Edward Box, Lord Denning opined that, “When the owner of a lorry sent his servant on a journey, and putting the servant not only to drive also to give a lift to people at any circumstances. So here he was answerable for the manner in which the servant conducted himself on the journey not only in the driving but also in giving lifts in it. And all these is done by the servant in the course of his employment”.

In Ormond v. Crossville Motor Services Ltd., Lord Denning laid down that, Master is also liable for the negligence done by the Servant. Because the servant was in the course of employment with the owner’s on consent which means for any business or owner’s purposes.   

The Supreme Court in Sitaram Motilal Kakal v. Santanuprasad Jaishankar Batti, accepted the law laid down by Lord Denning in the above cases. The court explained that, master’s liability can be arised only when there is a wrongful act authorized by the master or a wrongful and unauthorized mode of doing some act authorized by the master.  

The Vicarious Liability of the master does not depend on the lawful or unlawful nature of the acts of the servant and the master would be liable for the alleged act of the servant which had taken place in the course of employment.

In Dharanidhar Panda v. State of Orissa, the Orissa High Court held that the state of Orissa is vicariously liable to compensate the petitioner for the death of two children due to the collapse of the pillar of school. Because the portion of the wall of the school belongs to the state government.             

Therefore, Quantification of compensation has been dealt by the facts of the particular case and is to be assessed on the basis of facts.