This article is written by R Sai Gayatri, from Post Graduate College of Law, Osmania University. This article deals in detail with the doctrine of Common Employment, its definition, history, essentials, exceptions and its position in India along with case laws.
Let us understand a scenario before entering into the concept of the doctrine of Common Employment. There is a person by the name of Dennis, who works in a factory along with a few coworkers. One of such coworkers was Mennis. Dennis was hurt due to the negligent act done by Mennis while working at the factory during the course of his employment. Now Dennis goes to their boss and sues him for the act of Mennis. Will Dennis become successful in suing his boss for the act done by his coworker or not is dependent on the doctrine of Common Employment.
The doctrine of Common Employment states that the master shall not be liable for the negligent act done by one servant affecting the another in their course of employment. This principle is also known as the ‘Fellow Servant Rule’. The doctrine of Common Employment is premised on the concept of an implied contract of service. One employee is impliedly at the risk of causing injury to the other employees. The doctrine of Common Employment is an exception to the rule of vicarious liability wherein the master is vicariously liable for the act done by his employee. Since the said doctrine entails ambiguity, it is restricted to limited use.
Definition of the doctrine of Common Employment
The doctrine of Common Employment is a legal principle that restricts an injured worker from suing their employer if a coworker negligently caused the injury. The doctrine of Common Employment originates from common law. It states that when an employer has given safe, efficient and suitable machinery, tools and appliances as per the duty imposed upon such an employer by law, then such employer is not liable for any injury caused to an employee as a result of the act of another employee.
A fellow servant is a co-worker who has the same employer. Further, a fellow servant may be an employee who is primarily related to another employee’s work which means that if either of the employees is negligent then there exists a high degree of risk of harm.
Fellow Servant Rule, 1905
The Fellow Servant Rule is also known as the Common Employment rule. It is a common-law doctrine which holds that an employer is not liable for the injuries of an employee that are caused by a negligent co-employee. The fellow servant rule was not favoured by the workers or the compensation statutes. When a group of employees come and work together towards achieving a common goal then such a group of employees shall be considered as fellow servants in certain jurisdictions. However, in certain other jurisdictions, the relationship amongst the fellow servants was tested by two principles, namely, the doctrine of vice-principal or the Superior-Servant rule. These principles state that an employer shall be held liable for the injuries and harm caused to an employee resulting from the negligent act of another employee who is given a higher level of control and power over the injured employee.
Different Department Rule
Different department rule is a common law doctrine that states that the individuals who work for the same employer shall not be considered as fellow servants if they do not work in the same department having a similar nature of work. However, since this rule is an exception to the fellow servant rule, many jurisdictions have repudiated it.
History of the doctrine of Common Employment
The Doctrine of Common Employment originated from English Law. This doctrine was discussed in the case of Priestly v. Fowler (1837).
Priestley v. Fowler (1837)
In this case, an accident occurred at midnight on 30th May 1835 between Peterborough and Norman Cross. There was a van that was drawn by four horses being driven by William Beeton. The driver herein i.e., William Beeton was the employee of Thomas Fowler, a wholesale butcher of Market Deeping. Later, on the same day at half-past nine at night, the van from Thomas Fowler’s shop set out near Bull Inn in Market Deeping. The final destination was London, but some of the meat was to be sold en route at Buckden, which is twenty miles away from Peterborough. Charles Priestley, another employee of Thomas Fowler, was travelling to Buckden to sell this meat. Later, while the van was approaching Peterborough, it passed over a few stones and a cracking noise was heard.
As soon as the van left the city, it tumbled over. As a result, Charles Priestley’s thigh was fractured and his shoulder was dislocated, however, William Beeton was not badly injured. Subsequently, Charles Priestley’s father, Brown Priestley sued Thomas Fowler for damages as Charles Priestly was a minor aged 19 at that time. Until 1836, no one had sought damages from their employer for such an accident by a tort action. The court held that Thomas Fower was not liable as Charles Priestly was injured due to the negligent overloading of his fellow servant. This judgement mainly laid down the limit regarding the liability of the employer for the actions of their servants done during the course of employment.
The doctrine of Common Employment at the beginning of the 19th century was considered to be fair, however, the usage of the said doctrine was later extended to any kind of injury sustained by the employee for any ordinary risk of service. Therefore, the scope of the said doctrine became the reason for its criticism. The main point of defence put forwards in the favour of the said doctrine was that the employees based on their own will enter into the company and therefore they have all the knowledge of the potential risks and losses.
When it comes to the case of India, the Workmen’s Compensation Act was introduced in 1923, i.e., 26 years after it was introduced in England and England borrowed this concept from Germany, which it introduced in 1884. This newly established law secured the workers by providing them with a right to get compensation from their employer for injuries suffered in the course of employment, irrespective of any fault or breach of duty on the part of the employers.
Meaning of the doctrine of Common Employment
The doctrine of Common Employment refers to the rule wherein the employer is not liable for the negligent act done by one employee to another in the course of their employment. This doctrine is an exception to the principle that the master is vicariously liable for the act done by his employee. The said doctrine is based on the implied contract of service. This means that the employee impliedly is at the risk of injuring another employee. Here, the act of an employee done during the course of employment refers to the situations where such an employee –
- Is involved and engaged in the business of the employer.
- The act occurs during the course of the employment, i.e., during the time and within the limits authorized for employment.
- The act must be done to fulfil the requirements of the work regarding such employment
- The act should have been done by the employee against another employee without the knowledge of the employer.
Essentials of the doctrine of Common Employment
- The injured person and the wrongdoer should be co-employees. The employer cannot be held liable if the employee is injured by some outsider who is not employed in such an establishment. For instance, Bean is employed in an establishment by his employer and during the course of his employment, an outsider by the name of Teddy injures Bean and escapes. Here, Bean cannot sue his employer for damages as he was injured by an outsider and not a co-employee.
- During the time of the accident, the employees must be engaged in Common Employment. For instance, two employees by the names of Bean and Teddy are employed in an establishment working for the same employer and towards achieving a common goal. During the course of such Common Employment, Bean injures Teddy gravely. Here, Teddy can sue his employer since Bean caused him injuries by doing a negligent act during the course of their Common Employment.
Exceptions to the doctrine of Common Employment
The exceptions to the doctrine of Common Employment are as follows –
- If the employer is negligent regarding the action in question. For instance, if an employer does not repair a faulty machine and still negligently allows their employees to work on it.
- If the employee acts on behalf of the employer. For instance, when an employer gives authority to an employee to give further directions/instructions to other employees, such an employee acts on behalf of the employer with the consent of the employer.
- If the employer is aware of the cause and consequences of the action. For instance, when an employer knows that their action of allowing the employees to work in a particular working environment will lead to certain consequences and they still allow such action.
Position of the doctrine of Common Employment in India
The doctrine of Common Employment in India has been discussed in various cases and one such case is Secretary of State v. Rukmini Bai (1937). In this case, the plaintiff’s husband along with one other employee were killed because of the negligent act of a fellow employee. After perusing the facts of the case, the High Court of Nagpur allowed the action based on the doctrine of Common Employment.
Further, in the case of T. and J. Brocklebank Ltd. v. Noor Ahmode (1940), the Privy Council referred to the aforementioned case of the High Court of Nagpur but it did not establish any final opinion. In the case of Governor-General in Council v. Constance Zena Wells (1949), the Privy Council held that doctrine of Common Employment can be applied in India. However, the scope of the said doctrine is limited by Section 3(d) of the Indian Employer’s Liability Act, 1938. In this case, the plaintiff’s husband was a fireman in the defendant’s railways. The plaintiff’s husband was killed in an accident caused by the negligence of a fellow employee who was a railway driver. The Privy Council held that the defence of Common Employment can be resorted to by the defendant and the plaintiff’s claim for compensation was dismissed by the Privy Council. The doctrine of Common Employment is considered an exception to the doctrine of vicarious liability wherein the employer is made liable for the negligent acts of their employees and agents.
Judicial approach towards the doctrine of Common Employment
Young v. Edward Box (1951)
This case is one of the landmark cases dealing with the doctrine of Common Employment. In the instant case, the owner of a lorry sent his servant on some work and he also instructed the servant to also give a lift to people under any circumstances. As a result, the owner of the lorry will be liable for the acts of the servant done during the journey since such acts were done by him during the course of his employment.
Sitaram Motilal Kakal v. Santanuprasad Jaishankar Bhatt (1966)
In this case, the decision of the aforementioned case was reiterated. The instant case further established that the employer’s liability can arise only when a wrongful act was authorized by the employer or when a wrongful or unauthorized mode of doing some act was authorized by the employer. The vicarious liability of the employer is applied irrespective of the lawful or unlawful nature of the acts of the servant and the employer would be liable for the alleged wrongful or negligent act of the servant taken place during the course of employment.
Pushpabai Purshottam Udeshi and Others v. Ranjit Ginning and Pressing Co. (P) Ltd. and Another (1977)
In this case, it was held that the owner shall be liable in the case where a driver with the consent of the owner drives the car during the course of the owner’s business or its purpose. The Supreme Court based on the facts of the instant case held that since the accident took place during the course of employment, the decision taken in the aforementioned case of Sitaram Motilal Kakal v. Santanuprasad Jaishankar Bhatt (1966) cannot be considered.
Sadu Ganaji v. Shankerrao Deoraoji Deshmukh And Another (1954)
In this case, the issue was whether the doctrine of Common Employment which originated in England in 1837 in the case of Priestley v. Fowler (1837) should be followed in India as a principle as per justice, equity and good conscience or not. It was held that in any case, the doctrine of Common Employment must be applied based on the unique facts and circumstances of such case by also giving importance to the Statute law which modifies the common law.
Critical analysis of the doctrine of Common Employment
The decision of the Privy Council in the case of Governor-General in Council v. Constance Zena Wells (1949) recognized the defence of Common Employment in India and thus Section 3 of Employers’ Liability Act, 1938 was amended in 1951. This amendment abolished the defence of Common Employment in India. Therefore, the doctrine of Common Employment in India and England only entails historical value.
Further, the law concerning vicarious liability is evolving and developing. Moreover, the approach of the Courts has become more liberal and the trend is heading towards making the employer liable for the acts of the employee. The concept of no-fault liability has also been introduced in the Motor Vehicles Act, 1988. Thus it can be understood that there is a shift in the ideology from the doctrine of Common Employment to the doctrine of vicarious liability which makes the employer responsible for the acts of the employees.
The doctrine of Common Employment refers to the rule wherein the employer is not liable for the negligent act done by one employee to another in the course of their employment. This doctrine is an exception to the principle that the master is vicariously liable for the act done by his employee. The doctrine of Common Employment is also known as the Fellow Servant Rule.
It is a common-law doctrine that holds that an employer is not liable for the injuries of an employee that are caused by a negligent co-employee. Section 3 of the Employers’ Liability Act, 1938 was amended in 1951 and by this amendment, the doctrine of Common Employment was abolished in India.
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