Rostrum’s Law Review | ISSN: 2321-3787

The Doctrine of Common Employment in India: A Critical Study

“The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories institution of public policy, avowed or unconscious, even the prejudice which the judges share with their fellow-men, have had a god deal more than the syllogism in determining the rules by which men should be governed.” O.W. Holmes in THE COMMON LAW (P.1).

“You will not mistake my meaning or suppose that I deprecate one of the great humane studies if say that we cannot learn law by learning law. If it is to be anything more than more than just a technique it is to be so much more than itself: a part of history, a part of economics a sociology, a part of ethics and philosophy of life.” Lord Radcliff in LAW AND ITS COMPASS (1962). Quoted in Lloyd’s INTRODUCTION TO JURISPRUDENCE (7th ed.) (P.1).

The purpose of giving the above two extracts is to show that the study of law in Indian law schools and colleges require a critical outlook towards the doctrine and decisions. Statements in some of the text-books are likely to be taken for granted and decisions are quoted as if those decisions are true and authoritative. A study of the history and development of the doctrine of common employment shows the forces at work in the origin of the doctrine and development of the law. Often the books used by many teachers and students of law contain statements which may not be very accurate. Most of the Indian text books on law of torts state that the doctrine of common employment has been abolished by the Employers’ Liability Act, 1938 as amended by the amendment Act of 1951. One of the books published in 1964 states that the doctrine….is still applicable though with caution. Another book on Law of Negligence published is 1968 states that the “the doctrine was never considered as part of the law in India…” There are other books used by the law students which state that the doctrine has been abolished. Ratanlal and Dhirajlal in 24th edition of their Law of Torts states that “after the… statutory amendments, it can safely asserted that the doctrine of common employment cannot be applied in India.”[i]

The purpose of this article is not to justify the doctrine is reasonable, but to show that the Employers’ Liability Act was simply a hasty legislation based on the outdated, extensively Criticized English enactment of 1880. Even after the remarks of the Privy Council in Governor-General v. Constance Zeena[ii] the legislative draftsman did not resort to simple device of abolishing the doctrine on the model of English legislation. Comment on the Indian Act will be given at the end of this article to show the possible problems of interpretation. An earliest Indian decision was Mary Anne Turner v. Scinde. Punjab and Delhi Railway Company has an interesting discussion on the doctrine and its application in India. The Case was compromised with the railways agreeing to pay an ex gratia payment which was accepted and the possibility of further litigation before the Full Bench. The discussion therein shows that one of the judges took the view that was expounded in an English case of the early part of 20th Century. In Blanchette v. Secretary of State[iii] (1912) and in Abdul Aziz v. Secretary of State[iv] Courts applied the doctrine of common employment. Such decisions necessitated the enactment of 1938 Act -which instead of abolishing the doctrine confirmed application of it in certain cases.

The main object of this article is to state briefly the history of the doctrine in England and to examine Indian decisions which discuss this doctrine and to comment on the provisions of the Employers’ Liability Act, 1938.

It is generally 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. The doctrine of vicarious liability was itself was a product of changing social and economic conditions of English society during the latter part of 17th and early part of the 18th Centuries. Holdsworth has pointed out that it was Holt C.J. who clearly formulated the principle of vicarious libi1ity in the modern form in a number of decisions delivered between 1690 and 1710. Holt.C.J. based the principle of vicarious liability on public policy and said that “for seeing somebody must be a loser by this deceit, it is more reason that employs puts a trust and confidence in the deceiver should be a loser than a stranger”[v] in Hern V Nichlos[vi] (1709) and similarly he stated in Wayland[vii] case that “the master is chargeable, for the master at his peril ought to take care what servant he employs; and it is more reasonable that he should suffer for the cheats of his servants than strangers.” At the turn of the 19th century the modern principle of vicarious liability of the emp1oyer to the outsiders was firmly established. The question before the court in Priestly v. Powler[viii] was whether the principle of vicarious liability should be extended to insiders also. To the judges who were trained in the laissez – faire philosophy the extension of the principle of vicarious liability to the follow-servants looked unreasonable and opposed to public policy, and any such extension, the judges thought would impose a new and an indefinite series of liabilities on the masters, Munkman observes that “the doctrine of vicarious liability was set up to protect the interests of the strangers…thus in approaching the liability of a master for the injuries caused by one servant to another, the courts had to consider whether they should extend vicarious liability. They decided against any extension, and so the doctrine of common employment was born. But it is wrong… to suppose that, prima facie, the master was liable for the torts of his servants towards both outsiders and insiders, and that the courts established an exception as regards insiders, on the ground that they had agreed to accept the risk: though this was the view taken by the courts after the doctrine became established.[ix]

Priestly v. Flower was the first recorded case in which claim against the master was made by one servant for the negligence of another. It was difficult to find in the judgment of Lord Abinger a definite theoretical formulation of the principle of the doctrine of common employment. Holdsworth formulates three principles on which the judgment proceedings, viz., 1) form the relation of the master and servant there cannot be implied an obligation on the part of the master to take more care of the servant than he takes of himself; 2) the servant, by entering on and continuing in the employment has chosen to abide by the risk, of which he is likely to know as much if not more than the master; 3) to allow such actions would be a direct incentive “to omit that diligence and caution which he is in duty bound to exercise on behalf of his master, to protect him against the misconduct or negligence of others who serve him.”[x] It was left to an American judge, Chief Justice Shaw of Massachusetts, in Farwell v. Boston and Worcester Railway Corporation (1842) to give a theoretical basis for the doctrine of common employment. The American case has been described as a “judgment which is the fountain-head of all the later decision.[xi]  While Priestly v. Fowler appears to precede to the principle of voluntary assumption of risk (volenti non fit injuria) the American case establishes the doctrine on the principle of implied contract of the servant with his master. The doctrine as established in the American case and accepted by the English courts is as follows:

Strangers can hold the master liable for the negligence of the servant about his business. But in the case where the person injured is himself a servant in the same business, he is not in the same position as a stranger. He has of his free will entered into the business and made it his own. He cannot say to his master, you shall so conduct your business as not to injure me by want of due care and caution therein. For he has agreed with the master to serve in that business, and his claim on the master depend on the contract of service. Why should it be an implied term of the contract, not being an express one, that the master shall indemnify him against the negligence of a fellow-servant, or any other current risk? It is rather to be implied that he contracted with the risk before his eyes, and that the dangers of the service, taken all round, were considered in fixing the rate of payment.[xii]

The doctrine as laid in the American case was accepted by Baron Alderson in Hutchinson v. York Newcastle and Berwick Railway Company[xiii] wherein he said:

“They have both engaged in common service, the duties of which impose a certain risk on each of them; he knew, when he engaged in the service, that he was exposed to the risk of injury, not only from his want of it on the part of his fellow servant, and he must be supposed to have contracted on the terms that, as between himself and his master, he would run this risk.”

The courts in Scotland had showed a healthy sign in interpreting the duties of the employer and rejected the doctrine of common employment in earlier cases. If the principles laid down in these cases had been accepted by the House of Lords in Bartonshill cases Scottish law would have been saved from the doctrine of common employment. Unfortunately that was not being. In Bartonshill Coal Co. v. Reid (1858)[xiv] and Bartonshill Coal Co. v. McGUire (1856)[xv] Lord Cranworth held that the doctrine of common employment was equally applicable in Scotland also. The high water mark of the reached with the decision of the House of Lords in Wilson v. Merry[xvi] another Scottish case. The Court of Session of Scotland had held that an employer could not escape from liability by delegating his responsibility to a manager. The House of Lords reversed this decision, Lord Cranworth said “Workman do not cease to be fellow workmen because they are not all equal in point of station or duty.”[xvii] Board Cairns[xviii] held:

But what the master is, in my opinion, bound to his servants to do, in the event of his not personally super-intending and directing the work, is to select proper and competent persons to do so, and furnish them with adequate materials and resources for the work. When he has done all that he is bound to do. And if the person so selected is guilty of negligence, this is not the negligence of the master.

Such a doctrine in an ever expanding industry which was controlled by companies made the matters worse to the employees. The employer, whether an individual or a company, need only show that proper care was taken to appoint a qualified person to avoid the liability. “The growth of colossal industrial undertaking,” say the Webbs,[xix] “in which thousands of workmen were, technically, ‘in common employment’, made the occasional harshness of the law still more invidious.”

This state of law resulted in the working classes and their unions seeking the abolition of the doctrine of common employment. A number of Employers’ Liability Bills were introduced from time to time by the trade union representatives in the House of Common only to be thrown out. Ultimately in 1880 a partial reform by the Employers’ Liability Act was brought in. This Act which was intended to curtail the defence of common employment had in it the hidden snares and gave raise to innumerable difficulties or interpretation, and the verdict of scholars is in no way complimentary. The employers adopted the expedient of ‘contracting out’ to avoid their liability. Most appropriately   it has been pointed out that “the courts have made us bad law, and the legislature instead of abrogating it, has mitigated it in a half-hearted fashion with a number of minute and desultory exception.”[xx] The Employers’ Liability Act, 1180 has been described[xxi] as an ill-drafted statute adding to the complications of the common law, with the result the question whether a workman could recover damages for his employer for an injury done be a fellow-servant depended on a variety of petty circumstances and on subtitle question as to the meaning of the provisions of that statute. “Now this state of things is in itself condemnatory of the existing law. The relations between masters and workmen ought to be regulated by clear rules based on broad intelligible principles; for even a bad rule which is understood causes in such relations far less suffering and evil that a rule which, though intended to be fair, is in fact unintelligible and therefore uncertain in its operation. When Parliament was called upon to deal with rules affecting the liability of employers for accident to their workmen, there were only two intelligible courses open to the legislature. The one was to leave the law alone. Whether this course would have worried great injustice may be well open to doubt; when the people know what the law is, and their freedom of contract is not hampered, they can generally carry out contractual arrangements which guard against any practical injustice resulting from the condition of the law. The other course was to abolish the so-called ‘doctrine of common employment’. This would have simplified the law and completely satisfied the claims of the workmen, and would have inflicted upon the employers no greater injury. Members of the Parliament refused to take either course. They sanctioned an enactment which may be described as a series of exceptions modifying an exceptional rule, and themselves modified by a series of hardly intelligible provisos. In consequences, workmen who complained of judge- made law, which at any rate was intelligible, have been placed under a Parliament-made law which neither employers nor workmen, nor lawyers can understand. The rigor of the Judges caused less suffering than the incompetence of Members of Parliament.” These comments have to borne in mind when we examine the Indian enactment, viz., The Employers’ Liability Act, 1937.

The next important land-mark in the history of the doctrine of common employment was the decision of the House of Lords in Smith v. Backer & Sons.[xxii]

An attempt was made to bring back the doctrine even in the limited number of causes coming under the Employers’ Liability Act, 1880, through the back-door i.e. with the defence of violenti non fit injuria. The House of Lords refused to hold that the maxim applied to all those cases where there was some risk or danger, and refused to infer the voluntary assumption of risk from the mere fact that the plaintiff knowing of the risk continued in his words. The contention of the defendants that “whenever a person knows there is a risk of injury to himself, he debars himself form any right of complaint if an injury should happen to him in doing anything which involves that risk” was answered by Lord Halbury .L.C.[xxiii] in the following passage: “if applicable to the extent that is now insisted on, no person ought to have been awarded damages for being run over in London streets.” Further he observed that “a workman who never in front himself exposed to it and complains of it, cannot in my opinion be held, as a matter of law, to have impliedly agreed to incur that danger, or to have impliedly agreed to incur that danger, or to have voluntarily incurred it, because he does not refuse to face it.” The house distinguished between those instances where the job is inherently dangerous and the workman is aware of the dangerous character of the employment and those cases where there is no inherent peril in the work performed by the servant, but the risk to which he is exposed arises from the defect in the machinery used in another department over which he has no control.[xxiv] Lord Herschell[xxv] said that “Where a person undertakes to do work which is intrinsically dangerous, notwithstanding that reasonable care has been taken to render it as little dangerous as possible, no doubt voluntarily it, and cannot, if suffers, be permitted to complain that a wrong has been done him, even though the cause from which he suffers might give to others a right of action.” He adds[xxvi] later that “if the employed agreed, in consideration of special remuneration, or otherwise, to work under condition in which the care which the employer ought to bestow, by providing proper machinery or otherwise, to secure the safety of the employed, was wanting and to take the risk of their absence, he would no doubt be held to his contract, and this whether such contract were made at the inception or during it continuance.”

Further explanation and refinements of the doctrine were still to come. Thus in Johnson v. Lindsay & Co.[xxvii] the main question was as to the meaning of ‘fellow-servants’. Should the criterion for determining who is the fellow-servant be common work, i.e., employed by different masters but working for the common end or job – or is it necessary that they should be under the direction and control of the common master? The House of Lords[xxviii] held that “unless the person sought to be rendered liable for the negligence of his servant can show that the person so seeking to make him liable was himself in his service, the defense of common employment is not open to him.” Similarly Lord Watson[xxix] states, “I do not doubt that the appellant, and the servants of the respondents, though engaged in different departments of work, were yet employed in furtherance of the common end of completing the block of dwelling-house. Nor do I doubt that, if they had all been servants of the same master, the appellant would in Law be held to have accepted the risk of his fellow servant’s negligence, and could have no claim for reparation, except against the workman who injured him. But there is, in my opinion no ground for suggestion that the respondents’ servant were, in any sense whatever, the servants of Higgs & Hill, (Contractors) and therefore fellow-servants of the appellant.”

The second point which was the subject-matter of controversy and which required further clarification and refinement was the concept of ‘common work’. When can we say that two persons who are engaged in common work? Are all persons employed by a great company engaged in the common work for the purposes of the doctrine? What was at the beginning of the 19th century a simple matter had assumed towards the middle of the century a different aspect altogether. The industry was no longer controlled by one master who supervised the work of all his employees, or by small group of entrepreneurs, but increasingly by companies controlling a number of establishment spread over the country, employing thousands of workmen in different industries or in diverse departments in the same organization. The test adopted by the English Courts towards the end of the century and further refined during the 20th century was the concept of ‘special risk’. In the words of Munkman[xxx] “it was necessary to show that the two servants were so related that the negligence of one towards the other was the ordinary risk of the employment, as distinct from the ordinary risk of ordinary life.” It was suggested that where there was one common general object. In attaining which a servant was exposed to risk, the servant was not entitled to sue the master if he was injured by the negligence of another servant whilst engaged in furthering the same object. “This perhaps,” says Lord Atkin,[xxxi] “records the high watermark of the doctrine, from the employer’s point of view.” Common work has been explained by Lord Wright,[xxxii] as “work which necessarily and naturally, or in the usual course, involves just a position, local or casual, of the fellow employees, and the exposure to the risk of the negligence of one affecting the other… The nexus may be some general undertaking, which however large it may be can be regarded by the court as a unit.” (Radcliffe v. Ribble Motor Service Ltd., (1939) 1 AILER). Lord Porter observed in Lancaster v. London Passenger Transport Board,[xxxiii] “Common work embraces a case where the work of the one is so related to the work of the other that the risk of injury to the one owing to the carelessness of the other is not shared by the world at large but is a special risk which must be deemed to have been contemplated as possible when the workman entered into the service. If the risk of collision between the two vehicles is merely the ordinary risk arising from contiguity in traffic of being run into by another vehicle, whoever the driver of that other vehicle may be, then the injured party has no special interest in the skill and care of the driver though that driver works under same employer. He is taking the ordinary risk of the road, not a risk which is due to the special relationship between himself and fellow-employee. But if the work of the two is such that one of them depends for his safety in the special degree on the skill and care of the other, then they are engaged in a common work and each must be deemed to have undertaken the risk of negligence of the part of the other.”

While these developments were taking place in the history of the doctrine of common employment the judgment of the House of Lords in Willson & Clyde Coal Co. v. English gave the fatal blow to the doctrine of common employment by clarifying the law relating to the duty of the employer regarding the safe system of working in an undertaking. The House held that the doctrine of common employment did not apply where it was proved that a defective system of working was proved. The employer could not escape from the liability by showing that he had appointed a competent delegate as required by a provision of law. Though this paramount duty of the employer had been spelt out in earlier cases[xxxiv] during the 19th Century, it had not been fully expounded until Wilsons’ case. Lord Wright in Willsons’[xxxv] case explained the nature of employer’s duty in the following passage:

“The house held that the statutory duty was personal to the employer, in this sense that he was bound to perform it, by himself or by his servants. The same principle applies to those fundamental obligations of the contract of employment which lie outside the doctrine of common employment, and for the performance of which the employers are absolutely responsible. When I use the word absolutely, I don’t mean that the employers warrant the adequacy of plant, or the competence of the fellow-employees or the prosperity of the system of work. The obligation is fulfilled by the exercise of the due care and skill. But it is not fulfilled by entrusting its fulfillment to employees, even though selected by due care and skills.[xxxvi] He further observes: “But it (the doctrine of common employment) has never been carried to the extremity of excluding all remedy against employers, or all duty in the employers. so long as they have exercised care in the selection of managers or foremen. It is difficult to see what that duty would mean in the case of an absentee, or infant, or inexpert employer or what it would mean in the case of a great modern industrial concern. But in truth the employer’s obligation… is personal to the employer, and one to be performed by the employer per se or per alios.”[xxxvii]

Before we proceed to the history of the doctrine on the Indian law it is appropriate to note that the severity of the doctrine of the common employment was taken away not only by the developments stated above but also by certain other developments. Firstly, the development by the English courts concept of breach of statutory duty. This concept was firmly established with the decision of the Court of Appeal in Groves v. Wimborne,[xxxviii] and secondly, the passing of Workmen’s Compensation, 1897 to 1925, which were replaced by the National Insurance (Industrial Injuries) Act, 1946. These developments in the common law and the statutory law took away much of the mischief of the doctrine of the common employment. The final part of the story of the doctrine came in the form of a very brief enactment, viz., the Law Reform (Personal Injuries) Act, 1948, which abolished the doctrine altogether. Thus ended the story of an illogical and irrational doctrine which was detested by the judges and the jurists, and by the labour. But when this came it was already a dead horse, it caused no major

Changes in the industrial world and as Munkman[xxxix] puts it “it was little more than a ripple on the surface of the tide.”

In the light of this history of the doctrine in English law we have to examine the history of the doctrine in the Indian law. The earliest recorded case on the doctrine in India was the decision of the High Court of North western Province Mary Anne Turner v. Scinde, Punjab and Delhi Railway Company[xl], decided in April 1873. Briefly the facts of the case are as follows: The plaintiff’s husband was a platelayer was to supervise the permanent way and to keep it in the proper repair. In discharge of these duties they were required to travel up and down, and for this purpose trolley was provided with a gang of coolies.  They were also allowed to travel by any train or engine. A free duty pass was also issued to each platelayer to enable him to travel by train if he chooses to. Plaintiff’s husband was assigned a portion of the track and in his discharge of his duties he was required to travel between Khatauli and Meerut. He was residing in the bungalow given to him by the side of the track near Khatauli. On the day of his death he went to Meerut by trolley and was returned from Meerut to Khatuali by train. When the train by which he was travelling was midway between these two stations, the engine was particularly disabled. It was detached and taken by the driver towards Khatuali, but after proceedings a few miles the engine was totally disabled. Hence, the driver left the engine there and proceeded on foot to Khatuali, and from there telephoned to Meerut for assistance. The driver had not put up for signals nor did he send any message to Meerut warning that the engine had been left on the track few miles away from the compartments. A relief engine was dispatched from Meerut and it started pushing the train towards Khatuali at the rate of 6 miles per hour. The train collided with the stationery engine and in the collision the plaintiff’s husband sustained injuries and later died. Plaintiff sued the company and claimed damages of Rs.60, 000.

The subordinate Judge dismissed the claim holding that the deceased died through the negligence of a fellow-servant while in the course of common employment, and the nature of his employment was such that he had taken upon himself the natural risks and perils of such accidents.

In appeal before the High Court it was contented that the deceased was not employed in the same service as the man through whose negligence he met his death.

Staurt C.J. and Turner .J. having disagreed, the matter was referred to the full bench, which without giving any definite answer directed the bench to make further enquiry regarding the question whether the deceased was on duty while travelling back in train.

In the judgment on further enquiry Turner.J. following Farewell’s case and the leading English cases came to the conclusion that since the deceased was travelling on the duty pass and was returning home after the day’s work still in the course of employment, and that he was a fellow-servant with the engine driver engaged in the common work. He thought that the principles enunciated in Farewell’s case and in the Bartonshill case, Morgan v. The value of Neath Railway Company, and Wilson v. Merry, were completely in accord with the principles of justice, equity and good conscience, and hence claim should fail.

On the other hand, Stuart. C.J. starts his judgment criticizing the view taken by subordinate judge and Justice Turner. The Chief Justice rightly distinguishes this case from Morgan v. The Vale of Neath Railway Co.,[xli]

Farwell v. The Boston and Worcester Railway Corporation; and from the principle expressed by Cranworth in Bartonsill Coal Co. v. Reid. The view taken by the Chief Justice was that the deceased at the time of his death was not in the course of employment as he was returning after the day’s work. He asks “did the duty and responsibility of that position always and continuously attach to him, morning, noon and night, sleeping, or working, at Khatauli or Merrut, or travelling between the two places? Did the company by their contract secure their complete and perpetual immunity from any responsibility, no matter what might be going on during the 24 hours of the day?” he answers the questions: “the day’s work was over, and he was simply returning home in the evening, and it was no part of his engagement to travel in any particular way or by any special mode of conveyance.”[xlii] Further “if he travelled by train even on the business of the company, was he not entitled to assume that the company would take every reasonable safety, and not block up the line on which he was travelling by placing disabled engines on it, and if so entitled to expect and assume was such expectation and assumption not in the nature of a right? There must be some limit to the expression – common work of the company. If the deceased had actually been plate laying at the time of the accident, or engaged in any kind of actual work on the line which brought him into operative contact with the engine driver, then the contention of the respondents might be regarded with more favour, but at the time of the collision he was neither working on the line nor was he travelling under any engagement. On these views, therefore, I hesitate to decide that Turner was a fellow-workman in the sense supposed by Lord Cranworth.”

I have quoted in extensor from the judgment because the view expressed by the Chief Justice are fundamentally sound, and similar views have been expressed by the English judge during the current century in the cases which we have already seen above. From this judgment of the Chief Justice the following propositions can be deduced.

  1. Assuming that the deceased was on duty the employer had not maintained safe place of working.
  2. Though the driver and the deceased were fellow-servants the deceased was not on actual duty in as much that he was utilizing an amenity which was provided by the employer. The use of this amenity should not be considered so as to render the deceased on duty.
  3. Common work means that the persons concerned should share some special risk.

In spite of the well-reasoned judgment the learned Chief Justice concurred with Justice Turner in dismissing the appeal on the ground the “law on the subject is not so clear and undoubted and my own opinion on the case is not so decided as to justify me in recording a judgment against the defendants which would simply have the effect of subjecting the parties to the trouble, expense and delay of another appeal.”

Second case in which the doctrine of common employment came to be directly considered was Blanchette v. Secrectary[xliii] before the Allahabad High Court. The facts of the case are that the Plaintiff’s husband was a driver in the service of the Oudh (O) and Rohilkhand (R) Railway. He was killed in a collision between Desane (D) and Ghazibad (G) Railway Station. Station D was on O & A line, but G was a station used by O & R Railway and also by East Indian Railway and others. The employees at Ghaziabad were not servants of the O & R Railway also. The exact cause of the accident was not known. However, it was clear that it must have been due to the gross negligence of someone either at D or G. It was contented by the plaintiff/appellant that the respondent company maintained incompetent staff, and that the company neglected to supply suitable and safe machinery and appliances for working on the line. The Court on evidence found against the appellant on both issues. In this connection the court observed that: It is perfectly clear in this country where there is no legislation analogous to the Employers’ Liability Act that a servant has no cause of action against his master for the neglect of another servant in the common employment of the same master and this notwithstanding the fact that the nature of the employment of the servant suffering the injury and the servant whose neglect causes the damage is very dissimilar.”[xliv] However it was perfectly clear that the doctrine applied in India was not explained by the learned judges of the High Court. In the course of the judgment there is no reference to the earlier decision of the same High Court mentioned above,[xlv] nor is there any discussion of the principles or the reasons why the doctrine should be introduced into the Indian law. As we have already seen that by 1912 there was a strong trend of opinion in England critising the doctrine of common employment as an irrational doctrine unsuited to the changing conditions of the industrial life of the country, and there was a conscious judicial and legislative effort to restrict the operation of the doctrine. Yet the Indian High Court came to the conclusion that the doctrine had application in India as though the Common Law had per se operation in India also.

The next case in which the doctrine has been mentioned is Abdul Aziz v. Secretary of State[xlvi]. The plaintiff was employed as a tally clerk by M/S. Eastern Express Co. Ltd., It was his duty to tally the cargo which was unloaded from the ships coming to Karanchi wharf, of which the Eastern Express Co. were agents. A ship was unloaded and two railway wagons were brought in front of the Ship to take in some cases of wine. After certain cases of wine being loaded the wagons were temporarily shunted to another line being transferred to another line. These being the wagon in question were again brought back to the line. While this was going on the plaintiff was in one of the wagons. On account of certain jerks in the course of shunting two or three cases of wine fell down injuring plaintiff’s leg. The Secretary of State for India was made a party as the wagons belonged to him. In addition he made his employers and stevedores in charge of unloading also defendants. The additional commissioner Rupchand found that “there is no allegation much less evidence that defendants 2 or any of their servants was any way concerned either in the piling of cases or the shunting of the wagon.” Since the suit was dismissed it is clear that the Railways were not negligent in their work. After this conclusion the learned A.J.C. indulges in uncalled for discourse on the doctrine of common employment. One fails to see the justifications for such discussions where the pleading and the evidence did not raise the issue at all.

The next case on the doctrine is Secretary of State v. Rukhminibai[xlvii]. Respondent’s husband, Mr. Godbole, was employed as a temporary time-keeper on the G.I.P. Railway. On the date of the accident he travelled on a trolley with one Mr. Patel, the permanent was inspector, who was also his superior officer. While the trolley was passing through one of the tunnels a train coming from behind overtook them. Patel, Godbole and four coolies jumped off the trolley before the engine struck the trolley. Godbole was struck by the trolley and his head dashed against the wall of the tunnel, as a result of which he was instantly killed. It was found that the accident was due to the negligence of the permanent way inspector in not obeying the instructions concerning the use of the trolley.

Followed in England, but also in America and other countries, and at any rate I cannot hold that it is intrinsically an unjust principle.” Such are the remarks coming from a judge as late as 1935:

Niyogi A.J.C. on the other hand took a different view of the matter. According to him that the common law could be invoked in India as a matter of justice, equity and good conscience. Though the English statues cannot have any application in India “nevertheless, any court in India which takes recourse to the Common law of England and seeks to apply its principles to India cannot afford to ignore the extent to which the common law stands abrogate by statute…. It is manifestly anomalous and illogical to apply in the name of justice, equity and good conscience, to India the doctrine of common law which is no longer regarded at its source as fair and equitable and enforced as such.[xlviii]

As the two Additional Judicial Commissioners differ the two question “ whether the doctrine of common employment prevails in India in case that in England would come under the Employers’ Liability Act?” was referred to the Judicial Commissioner. In the opinion on reference R.E. Pollock J quotes with approval the opinion of Lord Herschell in 1894 A.C. 318 Palmer v Wiek., that the doctrine is not “founded on any principle of justice or equity or even of public policy which justifies its extension to the jurisprudence of other countries.[xlix] Justice Pollock observes “No such doctrine appears to exist in the law of any other country in Europe, and in my opinion the doctrine is not, under the conditions of to-day, in accordance with the principles of justice, equity and good conscience.”[l] He clearly states that the doctrine is unsuitable to the Indian condition, and quotes the view expressed by the Royal Commission on Labour in India which also felt that the doctrine was inequitable.

Stone C.J.[li] held that in applying certain parts of the Common law to India one has to consider whether those provisions are in accordance with justice, equity and good conscience, and also the age in which the application is to be made. He states: “One cannot take the common law of England divorced from the statute law of England and argues that the former is in accordance with justice equity and good conscience and that the latter which has modified it is to be ignored today in England, so far as this case is concerned… I am of the opinion that the doctrine of the common employment would not apply, not because this case would fall outside the common law doctrine of common employment, but becomes it would fall inside the Employers’ Liability Act.”

Thus the two judges agreed that the plaintiff should succeed, but the C.J.’s view was that the doctrine as modified by the English statute could be applied India. This view of the chief justice is rather unfortunate. The better view is that of justice Pollook, who already expressed the view that the doctrine had no application in India.

The last case before the passing of the Employers’ Liability Act, 1938, was from Calcutta and in which the doctrine was unnecessarily introduced and discussed. Brookle Bank Ltd. v. Noor Ahmode[lii]. Though the Calcutta High Court held that the case did not call for the application of the doctrine, the discussion makes one to believe that the doctrine had some application in India. In appeal the Privy Council observed that there was no necessity to discuss the doctrine. Lord Wright delivering the opinion of the Privy Council observes: “questions have been raised whether a doctrine so unsatisfactory both as to its policy and as to its practical results ought to be followed at all or at any rate without qualifications the Indian courts as a part of the law of India, particularly when in England it has been qualified and largely abrogated by legislation which has no counterpart in India…. It may further be observed that the fiction of an implied contract has always been regarded as difficult… But their Lordships do not desire to discuss or express any opinion upon this important question since it does not arise in this case. It must be left for full discussion in some case in which it is material and fully argued.”[liii]

A study of these cases indicates that the question of the application of the doctrine of common employment was doubtful. The only case during the current century where the doctrine was applied was that of the Allahabad High Court decided in 1912, and in which the Court did not take into consideration the developments that had taken place in England and the well-founded criticisms advanced by the judges, jurists and the trade union leaders. The opinion of Stuart.C.J. in the earlier decisions of Allahabad High Court contains a very good discussion of the doctrine, and if that view had been accepted by the court it would have established the doctrine at least within in the jurisdiction of that court in a much harmless manner. For the judgment of the Chief Justice contains the principles that were enunciated by the House of Lords in Radoliffe v. Ribble Motor Services and Lancaster v. L.P.T.B.

In view of Nagpur decision and observation of Lord Wright in Calcutta case and in view of development that had taken place in England it is extremely doubtful whether in other court in India would have applied the doctrine in India. Nevertheless the Indian legislature passed in 1938 the Employers’ Liability Act 1938.

This act was enacted due to the observation of the Royal Commission on Labour in India.[liv] “Persons injured by accident may have a remedy by a suit for damages against their employer in the civil court, and it is suggested that the law there applicable is inequitable because two defences may be evoked by the employer to defeat the claims which he should justly be called upon to meet. One is the defence of ‘common employment’ by which an employer can plead that the accident was due to the fault of a fellow workman, and the other is the defence of ‘assumed risk’ by which an employer is not liable for an injury caused to the workman through the ordinary risks of employment, and a workman is presumed to have assumed risks which were apparent when he entered upon his occupation. When the Indian Workmen’s Compensation Act was first introduced, it had, in addition to the provisions for workmen’s compensation, clauses designed to abrogate these defences in certain cases; but the Joint Selection Committee of the Legislature deleted the clauses in question, apparently because they were not satisfied that the doctrines to which we have referred, which were derived from the British Common Law, would be accepted by Indian Courts. They observed at the same time that, if the doctrine in question were so accepted and were regarded as inequitable, they should be removed for all workmen and not for the limited classes to which the Workmen’s Compensation Bill was to apply. ….. It is possible that the suits are not pursued because of the admitted ambiguity of the law and, as the defences in questions are in our view in equitable, there is need for ensuring that they cannot be invoked.”

In the view of the above opinion of the Royal Commission the Employer’s Liability Bill was introduced and ultimately in September 1938 it became the law. Unfortunately the provisions closely follow the provisions of the English, 1880. When the English Act was passed there was some doubt as to exact scope of the duty of the employer, and as a result of the decision Wilson v. Merry[lv] in 1868 by the House of Lords it was thought that the employer need to do was to exercise due and skill in selecting qualified managers or foremen and there after he owned on duty towards the employees as regards the system of work, safety of the plant, machinery, way or works etc. hence it was necessary for the legislature to provide for such matters in the statute to exclude the defence of the doctrine of common employment in such cases. In Bartonshill v. Reid[lvi] Lord Cranworth commenting on Sword v. Cameron was of the view that the employer owed a duty to the employee to establish a safe system of working. In Smith v. Backer & sons[lvii] Lord Watson explained that this duty was a recognized principle of the common law. Finally in Willsons & Clyde Coal Co v. English[lviii] the nature and the extent of the common law duty of the employer was held to be personal to him. By the time the Indian Bill was passed into the law Willsons & Clyde case had been decided and it is surprising as to why the Indian legislature took the trouble of introducing these detailed provisions in the Act. The effect could have been achieved by providing in a simpler Act a declaration that the doctrine of common employment has no application in India. The preamble to the Act is significant in as much it states that it is an “Act to declare that certain defences shall not be raised in suits for damages in respect of injuries sustained by workmen.” This clearly indicates that the legislature intended to abolish the doctrine of common employment and the doctrine of assumed risk. One consequence of the Act as it stood before the amendment, particularly section(3)[lix] was that it raised a problem of interpretation in Constance Zena v Governor-General of India[lx] and in Dominion of India v. Kaniz Fatima. The Lahore High Court took the view in the first case that the paragraph contains three situations viz., (I) in obedience to any rule or bylaw of the employer or (II) in obedience to particular instructions given by any person to whom the employer has delegated the authority in that behalf or (III) in the normal performance of his duties. It was contented that this clause covered only two categories of negligence – the act or omission of a fellow-servant done or made (i) in obedience to particular instruction given by the person either by virtue of authority delegated by the employer in that behalf or in the normal performance of such persons duties. According to this construction the words “to whom the employer has delegated authority in that behalf, and hence they do not apply to co-employee who is carrying out his duties. The high Court rejected this construction on the ground that if this was the intention of the Legislature the words “or in the normal performance of his duties” were entirely unnecessary.

The Privy Council, however, upheld the second interpretation[lxi] and reversed the judgment of the Lahore High Court. This interpretation, it said, “accords better with the grammatical construction of the paragraph and is the more natural reading of the language used which, as its title to the particularly of the several paragraphs of sec. 3 go to show, was intended not to abolish the doctrine of common employment but rather to reduce its scope. If, however, what may be called the three category construction were to prevail the result would be to reduce the doctrine almost, if not altogether, to the point of extinction and to render notices much in section 3 which is designedly detailed and specific.” It is unfortunate that before the Privy Council the respondent was not represented and that it did not consider whether the doctrine had any application in India. Even the High Court assumed that the doctrine applied in India and the attention of the court to the Nagpur case and to the remarks of Lord Wright in the Privy Council case[lxii] of 1940 was not drawn. Though one cannot entirely disagree with the interpretation given to the ill-drafted clause, yet one fails to see how the

Privy Council could place so much reliance on the marginal note to section 3 of the act and completely ignore the preamble to the act which indicates that these defenses shall not be raised in suits by the workmen. If it had been shown to the Privy Council that the doctrine of common employment was of doubtful application in India in view of the Nagpur case, probably, the results would have been different.

After the decision of this case the Act has been amended.[lxiii] It is submitted even after the amendment.


[i] Sinha B S Law of Torts (1964) pp 139-140; Kameshwar Rao, Law of negligence (1968) p 549. Gandhi B.M. law of torts (3rd ed. P 712.)

[ii] AIR 1950 PC 22

[iii] 9 Allahabad Law Journal 173, 1912, 1356, 417

[iv] AIR 1933 sind 129

[v] History of English Law (2nd Ed.) vol. VIII, P 472.

[vi]  3 salk. 234. Cited by Hodsworth ibid 475 note 4

[vii] Cited by Holdsworth, IBID above

[viii] All. E R Rep. 449

[ix] Munkman’s Employeer’s Liability (6th Ed.)

[x] Ibid., P 480

[xi] 1842. 4 Met. 49

[xii] Ibid 220.

[xiii] (1850) 5 Exch. 343

[xiv] (1858) 3 Macq., 266 (H2) cited by Munkman

[xv] (1858) 3 Macq; 266 (H2) cited by Munkman, p 300

[xvi] (1868) LR 1 SC & Div 326 cited by Munkman

[xvii] Ibid 34 quoted by Munkman, p12

[xviii] Ibid, 332 Quoted by Munkman p12

[xix] Webs, Sidney & Bentrice, The History of trade unions (2nd ed.) 1950 impression p364, note 3.

[xx] 62 QR p 471, see also Hobbs M.C “Statutory Changes in Employer’s Liability” 2 Har L.Rev. 221

[xxi] 5  LQR pp100-101. An analysis of the Employers’ Liability Act 1880 and its deficits Gates H.D. Employers’ Liability. Ibid p 179

[xxii] (1891) AC 325; (1891-4) Aii ER Rep. 69

[xxiii] Ibid 337

[xxiv] Ibid, Lord Watson p 357.

[xxv] Ibid, pp 36 C.

[xxvi] Ibid pp 362- 63

[xxvii] (1987) AC 371

[xxviii] Ibid Lord Hershell, 377

[xxix] Ibid 380. At. P382-383 Lord Watson states the rule there: “… in order to raise the exemption, there must not only be common employment but a common master.”

[xxx] Ibid 20. This test was laid down in the Petrol (1893) p. 320 and was followed in subsequent cases.

[xxxi] Radcliffe v. Ribble motor service ltd. (1939) 1 All ER 637, p. 645

[xxxii] Ibid 658

[xxxiii] (1948) 2 All ER 796, 798-99

[xxxiv] For Eg: Johnson v. Lindsay & Co. (1891) AC 371, Per Lord Watson at 382; Comments of Lord Cranworthin Bartonshill coal co. ltd. Reid on sword v. Cameron, quoted by Lord Thankerton in (1937) 2 All ER 628, 633.

[xxxv] (1937) 3 All ER 628 p 640

[xxxvi] Lochgally Iron  & Coal co. ltd. (1934) ACI

[xxxvii] Ibid 641

[xxxviii] (1898) 2QB 402

[xxxix] Munkman Ibid p23

[xl] (1904), Allahabad Law Journal 653

[xli] (1865) LR 1 QB 149

[xlii] Ibid 622-63

[xliii] (1912) 13 I C 417

[xliv] Ibid 418

[xlv] (1904) 1 ALJ 653

[xlvi] AIR 1933 Sind 129

[xlvii] Ibid 130

[xlviii] Ibid p…362

[xlix] Ibid p 364

[l] Ibid p 365

[li] Ibid p 366

[lii] AIR 1938 Cal. 104 and in appeal to Privy Council. AIR 1940 p.v. 225

[liii] AIR 1940 PC 225

[liv] Report of the Royal Commission on Labour in India 1931, Jene.P314

[lv]  (1868) L.R. I. Sc. & Div. 326

[lvi] (1858) 3. Macq, 266

[lvii] (1891) AC 325 p353

[lviii] (1973) 3 AIL E.R. 628

[lix] Section 3 (d) Defense of common employment barred in certain cases:-  where personal injury is caused to overcome




(d) by reason of any act or omission of any person in the service of the employer or in obedience to particular institution given by any person to whom the employer has delegated authority in that behalf or in the normal performance of his duties.

[lx] AIR 1946 Lahore p 50 and in appeal to PC  AIR 1950 PC 22.

[lxi] AIR 1950 PC 22, 22-23

[lxii] AIR 1940 PC 225, 230

[lxiii] After the amendment section 3 (d) reads:

(i)                   In the normal performance of the duties of that person: or

(ii)                 In obedience to any rule or bye-law of the employment (not being a rule or bye-law which is required by or under any law for the time being in force to be approved by any authority and which has been approved) or

(iii)                In obedience to particular instruction given by any other person to whom the employer has delegated authority in that behalf;…

“the main provisions of the Employers’ Liability Act of 1880 give injured workman the right to compensation when the accident was caused-

  1. By some defect in the ways, machinery, or plant connected with or used in the employer’s business.
  2. By negligence of a fellow servant exercising the duties of superintendence.
  3. By a workman’s obedience to orders or directions issued negligently by a fellow servant whom he was obliged to obey.
  4. By act or omission of a fellow servant in obedience to rules, by-laws or particular instructions.
  5. By the negligence of a fellow servant who had charge or control or any signal points, locomotive engine or train upon a railway.
  • The act applied to all engaged in manual work, but not to seamen or domestic servant.”

Quoted from Willson and Levy Workmen’s Compensation (London, OUP, 1939) vol, 1, 57

(iv)               The Royal Commission on Labour in India was clearly of the view that the doctrine should not be permitted to come up in India.

(v) Observation of the Privy Council in Brockles Bank case should have guided the legislative draftsman to prepare a bill abolishing the doctrine not only in respect of a limited category of workmen, but altogether.

(vi) The Royal Commission of Labour in India was clearly of the view that the doctrine should not be permitted to come up in India.

(vii) The Privy Council   in Brockles Bank case had remarked about importing the doctrine into Indian Law. However, no opinion was expressed as the case did not call for expressing any opinion on the doctrine. Even after Kaniz Fatima’s Case, the legislature proposal was not for complete abolition of the doctrine but only in respect of workmen as defined therein. Words “or otherwise” in the definition may create problems of interpretation. Should these words be read ejusdem generis so that the words “by way of manual labour, clerical work” are species of a genus or as some hold, those words cover all employees under an employer? The Workmen’s  Compensation Act as also The Employees ‘ Act State Insurance Act are applicable to employees whose ‘wages’ are within the limits specified therein. If the definition all workmen the question that may arise is whether the doctrine mentioned in the enactment could be pleaded as defenses in respect of the claims of other emplyees who are not workmen?

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