Meaning of Doctrine of Common Employment
The doctrine of common employment denotes that a master is not responsible for negligent harm done by one of his servant to a fellow-servant engaged in common employment.
At common Law a master was not liable to his servant for injuries received from any ordinary risk of, or incident to the service including acts or defaults of any other person employed in the same service.
As observed by Lord Wright in Radchiff vs. Riblle Moter Services Ltd. to attract his doctrine of commnn employment, the workman concerned must be employed in common work, that is, work which necessarilly and naturally, or in the normal course, involves just a position, local or causal, of the fellow-employees, and exposure to the risk of negligence of one affecting the other.
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In other words, the following two conditions have to be fulfilled in other to attract the doctrine of common employment
(i) That the servant injured and the servant causing injury must be fellow servant i.e., they must be in the service of common employer; and
(ii) That they must at the time of accident have been engaged in a common employment in the sense that the safety of one servant must in the ordinary and natural course of things depend on the case and skill of the order.
Illustrations
(a) Priestly Vs. Fowler: In this case, the plaintiff alleged that he was directed by the defendant, his employer, to go in a van conducted by another servant and the van, being in an unsafe condition and overloaded, broke down and the plaintiff’s thigh was fractured. It was held that-the master was not liable for an injury sustained by the plaintiff because a servant must be deemed to have consented to tape its risk by accepting the service and that these risks include the faults of his fellow-servant.
(b) Richardson Vs. Stephenson Claske Ltd.: In this case the master had left the selection of equipment to his servant who was a competent and experienced man. The injury was caused to such servant. The master was held not negligent for injuries caused to such servant.
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Exceptions and Limitations to the Doctrine of Common Employment:
There are certain exceptions to this doctrine and in the following exceptional cases, the defence of common employment is not available even for the negligence of a fellow servant.
(i) Breach of absolute duty: Where a statute casts a duty on a master, less bound to perform it and becomes liable for breach of such statutory obligation. And in such case he cannot take the defence of common employment. In other words, the rule does not apply to claims
by workman for injuries caused by breach of statutory duties.
(ii) Master’s negligence: If it proved that the master was guilty of negligence either in selecting his servants whom he knew to be incompetent, or retaining servants even after having knowledge of their incompetence, he is liable to the servant to whom the injury has been caused by a fellow-servant.
(iii) Breach of duty to use reasonable case: If a master does not take reasonable care to secure the safety of his servants and does not disclose any hidden danger in the work to them that they may not know, the master is liable for injuries caused to his servant by his fellow servant. The master is bound to take reasonable care to ensure that they are safe.
Present Position: The defence of common employment is now not available after the passing of the Law Refoms (Personal Injuries) Act, 1948. Under this Act, 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, and such person was at the time the injuries caused, in the cammon employment with the person injured. Any provision contained in a contract of service of apprenticeship. or in an agreement collateral thereto, (including a contract of agreement entered into before the commencement of this Act), shall be void insofar as it would have the effect of excluding or binding any liability of the employer in respect of personal injuries caused to the person employed or apprenticed by the negligence of persons in common employment with him.
Position in Indian Law: In G. G. in Council vs. Constance Zena, it was held the application of the doctrine has been reduced by the Indian Employers’ Liability Act, 1938, Sec. 3(d), (16).
But section 3 (d) of the Indian Employers’ Liability Act, 1938 has been amended by Employers’ Liability (Amendment) Act, 1941 and a new section 3-A has been inserted making void any collateral agreement excluding or limiting any liability of the employer under this Act. The personal Injury (Compensation Insurance) Act, 1963 imposes on employers a liability to pay compensation to workman who sustains personal injuries and provides for insurance of employees against such liability.
Question:- What do you understand by the doctrine of “Common Employment”? Illustrate your answer. Also point out exceptions and limitations to this doctrine.