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A PROBLEM IN THE DRAFTING OF WORK

MEN'S COMPENSATION ACTS.

I.

PERSONAL INJURY ARISING OUT OF AND IN THE COURSE OF

EMPLOYMENT.

UNTIL very recently it has been assumed that the right of

NTIL

action which workmen had at common law against their employers secured to them a reasonably adequate remedy for the loss which they sustained by injuries due to industrial accidents. Whatever legislation there was looking to a fuller remedy preserved the fundamental conception of the common law that fault in the preparation or operation of the business was essential to the employer's liability. Such legislation merely relieved employees, more or less fully, from the operation of certain defenses, some of them peculiar to the relation of master and servant, as that of fellow service, others common to all persons who had associated themselves with others for the mutual benefit of both, as that of voluntary assumption of risk. In some few instances they are relieved from the defense of contributory negligence, available against all who seek compensation for harm resulting from another's negligence.

Within the last few years, particularly within the last two, there has been a complete change in the attitude of public opinion. There are now in force in no fewer than ten states acts by which the owner of a business is made to bear a part of the loss resulting to his workmen from injuries received by them in his service, whether due to a defect in the conditions or operations of the business or not, or to insure his workmen at least partially against such loss. Nor has this movement spent its force; on the contrary, the impulse towards such legislation seems stronger than ever. It is not proposed to discuss the economic or social problems involved or to consider all the legal questions presented; no attempt will be made to deal with the very difficult questions which arise as to the constitutionality of such acts, whether compulsory or - in form at least — elective. One question, and one only, will be discussed.

Whether the system adopted is that of insurance as in Germany and generally on the Continent of Europe, or compensation payable directly by the employer as in England, every act so far enacted or drafted has, in defining the injuries to be insured against or compensated, adopted phraseology copied verbatim or modeled closely upon the language used in the English Acts of 1897 and 1906, in which it is provided that, "if in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall . . . be liable to pay compensation."

This language has been adopted upon the assumption that it has acquired by judicial construction, during the years which have elapsed since these acts were passed, so fixed and certain a meaning that a resort to the English decisions will, in a great majority of cases, render further interpretation and construction unnecessary and so avoid that vast amount of litigation generally required for this purpose.

It is the purpose of this article to examine briefly the English, Scottish, and Irish cases in which this section has been considered and to ascertain whether this assumption is in fact justified, and whether in so far as a definite meaning has been judicially attached to these words, it is one which carries into effect the objects which such legislation is designed to accomplish. It is necessary also to ascertain whether such definiteness as exists has been reached by a course of reasoning such as is apt to commend itself to American courts, or whether it has not resulted from arbitrary and illogical distinctions.

In ascertaining whether the construction put upon this clause accomplishes the objects which such legislation is designed to carry into effect, it is impossible not to consider briefly the public opinion which demands such legislation. While a large part of the thinking public is dissatisfied with the present method of distributing the loss caused by industrial accident and desires to transfer to the employer at least a part of it, it is extraordinary how little unanimity there is as to the reasons for their dissatisfaction with the existing state of the law and for their desire to alter it. The motive which dominates probably the largest body of persons who advocate workmen's compensation acts is sentimental humanitarianism, that altogether admirable instinct which revolts from the contemplation of individual suffering and which regards as unjust any condition, social or legal, which throws a loss upon a class of individuals unable to bear it without actual suffering. There is a further body of public opinion, that of the advanced collectivist who believes that society as a whole should share the shock of industrial accidents rather than that it should be borne by the particular individual whose ill fortune it is to suffer it immediately, and so desires to place the burden primarily upon the employer, who, in theory at least, can add the cost to the price of his product and so distribute the loss among that part of the community at least whose wants call his business into existence. This sentiment is stated by a considerable group of economists in the form of the economic law or doctrine, to the effect that the consumer should bear, as part of the cost of the article which he uses, all the loss which its manufacture entails, including the destruction and impairment of the human instrument of manufacture as well as the destruction and impairment of the other instruments, which, since such instruments are owned by the employer, is already taken into account in fixing the price of the commodity. There is a large body of public opinion that believes that the task of maintaining those reduced to want by industrial accident should be borne primarily by the industry which creates it, and ultimately by the consumer to whose wants such industries minister, rather than that it should be thrown directly upon the public funds realized by taxation. Another considerable body of public opinion is inspired by that different species of humanitarianism which considers the improvement of the human race as a primary object of consideration rather than the relief of unfortunate individuals. To such a one it appears intolerable that workmen and their families as a class should be subject to the risk of fortuitous degradation in the social scale by an accidental injury to the head of the family, thereby throwing the entire family back into a submerged or pauper class or into a class but little better, and so rendering nugatory the effort expended in raising them to the position from which their mere misfortune has cast them. To workmen as a class such legislation may well appear a distinct gain, and their support has undoubtedly been a strong impulse to the adoption of this sort of legislation.

But there is in addition a large class who entertain a well-grounded

1 See Fletcher Moulton, L. J., in the recent case of Astley v. Evans & Co., (1911) i K. B. 1036, 1042-1043.

and growing dissatisfaction with the waste and uncertainty of the present state of the law,- a waste which is inseparable from any system which requires the proof of fault as a basis to liability and which, being based upon the essentially common-law idea of antagonistic litigation, makes the right to recovery depend upon the proof of difficult and uncertain issues of fact. If the acts passed and those which undoubtedly will be passed accomplish no more than the extension of the field within which claims of workmen for compensation may be advanced with a chance of success, but within which the employer may hope equally to resist liability successfully, the waste of litigation instead of being diminished will be increased by widening the area in which it may occur. Such a result would satisfy no one.

The relief afforded workmen and their dependents will still fall far short of that intended. Even if the workmen or his dependents are successful, a part of the sum paid by the employer will be diverted to the payment of legal expenses and counsel fees, which, unless strictly scrutinized and rigorously supervised, will undoubtedly tend to be exorbitant. It is impossible to suppose that the awakened public conscience will be satisfied to have any considerable proportion of the relief which such acts are designed to give to workmen and their dependents go to that highly unpopular species of the genus middleman, the accident lawyer, or as he is sometimes, perhaps not unjustly, called, the ambulance-chaser. Not only will the relief be diminished in amount but it will be delayed during the period of litigation. The inability of the working classes to bear without undue suffering and social degradation the loss resulting to them from industrial accident alone justifies their being singled out from among all those accidentally injured by business activities as worthy of this special relief. The object is to provide for the workmen and his dependents a means of livelihood in lieu of the wages which his injuries prevent him from earning. In no act, enacted or proposed, is the “waiting period” during which the workman himself bears the loss of his earning power greater than two weeks, and this because the various commissions that have drafted the acts have concluded that workmen as a class are incapable of adequately caring for any longer period of enforced idleness. If this be true, it is evident that the hope of future compensation, after months or perhaps years of litigation, would not adequately save them from suffering, preserve them from economic and social degradation, or prevent them becoming a charge on public or private charity. In order to relieve their immediate needs, they would be forced to consent to disadvantageous compromises or to sell their claim at a ruinous discount. Nor can unscrupulous employers or their insurers, who, having no direct contact with labor, would have less inducement to treat claimants fairly, be expected to neglect the opportunity of forcing such compromises by defending every case in which there was the most remote chance of success.

To employers the result is at least as unfavorable. They would be subjected to new demands and added costs, not merely in the sums expended for compensation, but in those paid for the cost of litigation as well, without any corresponding saving. There is a point beyond which the cost of production cannot be increased without destroying the profit of the producer and so directly driving him out of business or raising the cost of the commodity to a point where the demand is stifled, and so indirectly reaching the same result. The ultimate success or failure of this form of legislation, one may venture to predict, will depend upon whether the modern humanitarian and collectivist sense of justice can be satisfied without unduly burdening business or the consumers whom it serves, and this can only be done by recouping the employer for the additional burden which will undoubtedly be put upon him by relieving him from the cost of litigation, by reducing to a minimum the cost of enforcing the claims, and so securing to workmen and their dependents the fullest possible share of the sums paid by the employers, and by making the compensation payable to them at the earliest possible moment, so that their current expenses can be immediately met. To accomplish this it is essential that the act should be so drawn as to be as far as possible automatically applicable to any given state of fact, and, as far as may be, to prevent the right to compensation from becoming a subject of antagonistic litigation.

There is also a substantial agreement that the duty of making compensation is not to be imposed upon the business as a penalty for its misconduct. The determination of the existence or extent of liability, or of the right to compensation, by the guilt or innocence of the parties, is appropriate only if the object of the act is to punish wrongdoing. Punishment is both expiatory, a penalty for the fault committed; and preventive, a deterrent to the commission of a fault penalized. The objects of such acts being, not to punish the

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