THE DOCTRINE OF COMMON EMPLOYMENT: IN INDIA AND UK

Introduction:

Doctrine of Common Employment (hereinafter referred to as ‘the Doctrine' originated from the English Common Law, in Priestly v. Fowler (1837). It is also known as the FellowServant Rule. The Doctrine was further developed in Hutchinston v. York, New Castle and Berwick Rail Co. in 1850. Post which, it became an established law under the English Common Law. The Doctrine was recognized in India in Governor-General in Council v.

Constance Zena Wells (1949). However, it has now been repudiated from the Employers’ Liability Act, 1938 after the amendment in 1951.



Legal Definition:

The Doctrine of Common Employment refers to a legal principle that serves as a defense against the doctrine of vicarious liability of a master/employer in a master-servant or employer-employee relationship. The Doctrine clearly states that if the employer provides:

i) a safe environment as well as ii) safe and efficient equipment to perform the duty imposed by such employer on an employee, then by law, such an employer is not liable for any harm inflicted upon a worker as a result of the actions of a co-worker.



History & Evolution:

In the case of Priestley v. Fowler, William Beeton, one of the employees of Thomas Fowler, was travelling to London with his co-worker, Charles Priestley, a minor aged 19, to sell meat en route to Buckden as instructed by the employer. The van in which they travelled, was driven by Thomas Fowler, and it tumbled on the way. Charles Priestly sustained several injuries including a fractured thigh and a dislocated shoulder as a result of the accident. Brown Priestley, the father of Charles Priestly, sued the employer for compensation. The court was of the opinion that the employer cannot be held liable for the wrongful actions of a co-worker. The ratio decedendi of this judgment was based on the legal principle of Volenti non fit injuria meaning that an employee, when entering into an employment contract with the employer, is fully aware of the potential risks and losses involved in the course of employment. The employees, by way of entering into the contract, acknowledge and appreciate the knowledge of such risks and losses, thus they cannot hold the employer liable for the negligent actions of their co-workers.


The Doctrine was implemented in India after Governor General in Council v. Constance Zena Wells. Wherein the plaintiff’s husband was a fireman at the railways of the defendant. He died in an accident caused by his co-worker, a railway driver. The plaintiff brought a suit against the defendant to seek compensation. In the said case, the Privy Council ruled that the Doctrine was applicable in India but was bound by Section 3 (d) of the Employers’ Liability Act, 1938. Following which, the complainant’s contentions were dismissed and the defendant was not vicariously liable to compensate for the negligent actions of his workerthe railway driver.


Essentials of the Doctrine of Common Employment:

1. The perpetrator and the injured employee must be co-workers.

2. The wrongful action must take place within the scope of employment- at the authorized time and place of employment and the two employees in question must be engaged in common employment. This means that both the employees must be working for the same employer and towards a mutual objective, as instructed by the said employer.

3. The wrongful act must be committed by one employee to another, without the knowledge of the employer.

4. The wrongful action must be committed while performing an act authorized by the employer, for the fulfilment of requirements of such employment.


Exceptions to the Doctrine of Common Employment:

1. If the employer fails to provide safe equipment and environment to the employees for work, the Doctrine will not be applicable in such cases. This is because, the employer themself commits a negligent action.

2. When the employer gives the authority to a particular employee to act on their behalf, any wrongful action committed by such an employee within the course of such authority, will be treated as a wrongful action committed by the employer themselves. Thus, the Doctrine of Common Employment would not be applicable in such cases.

3. If the employer is aware and consents the commission of a wrongful action by another employee, the Doctrine is not applicable. For instance, if the employer is aware that if their employees are working in a dangerous environment which could lead to mishaps and still allows them to work in such an environment, then the Doctrine will not be applicable in such cases.


Contemporary Relevance of the Doctrine in India:

In other cases such as in the case of Secretary of State v. Rukminibai, or in the instance of T. and J. Brocklebank Ltd. v. Noor Ahmode, justices affirmed that the Doctrine cannot be implemented in India for it is unsuitable for Indian conditions. Thus, the decision made by the Privy Council was not in line with decisions of other judges, thus Section 3 of the Indian Employers’ Liability Act, 1938 was abolished in the amendment made in the year 1951. Similarly, the application of the Doctrine was severely contested and criticized in two important verdicts: Wilson and Clyde Coal Co. v. English and Radcliffe v. Ribble Motor Services Ltd. Thereafter, abolishing the Doctrine of Common Employment by the Law Reform (Personal Injuries) Act, 1948.


Case Laws:

1. Sadu Ganaji v. Shankerrao Deoraoji Deshmukh And Another (1954):

The legal issue in this suit was if the doctrine of Common Employment, which originated in the year 1837 in the UK, should be applicable in India as a legal principle or not. The court held that, the doctrine of common employment must be applied on the basis of the distinctive facts and circumstances of different cases.


2. Young v. Edward (1951):

In this case, the owner of a lorry clearly instructed his employee, the lorry driver that he must complete his journey and also give lifts to people on the way. Since the lorry driver committed a negligent action within the course of employment, the court held that the owner of the lorry is liable for the wrongful conduct of his employee.



3. Brocklebank Ltd. vs Noor Ahmode, (1941) 43 BOMLR 450:

In this case, the application of the Doctrine in India was severely contested, for it violated the workmen’s rights against the employer for any injury caused within the scope of their employment. This doctrine was established as a law in England by reasons of legislative measures, which protected the workers’ rights against their employer. Therefore, the Employers’ Liability Act, 1880 in the UK was amended and several exceptions to the application of the Doctrine of Common Employment were established. Further, a series of Workmen's Compensation Acts were established, providing rights to the workers against their employers by the nature of insurance against their risk of injury within the scope of employment, besides negligence.


Conclusion:

The judges were followers of the laissez-faire philosophy, which opposed the practice of extending vicarious liability on masters for the actions of their employees. The Doctrine of Vicarious liability was established safeguard the rights of strangers. However, the courts had to consider whether or not to extend such liability to the employer for harm inflicted by one employee to another. The courts held that vicarious liability will not be extended to the employer, the doctrine of common employment came to rise. Conversely, the doctrine was severely criticized and contested in the later years, for it infringed the rights of workers in employees and put them at the risk of liability or a suit brought against them for the minutest mistakes. Thus, in Sec 3 of the Employers’ Liability Act, 1938 was amended in 1951 to repudiate the doctrine of common employment.



This article is written by Hiya Gandhi, of Kirit P. Mehta, NMIMS, School of Law.


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