[1] Bryce points out, with much subtlety and truth, that the rise of
a second Rome in the East not only helped to perpetuate the Empire by
providing a new centre which would take the place of Rome when Rome
fell, but also tended to make it more universal; "for, having lost
its local centre, it subsisted no longer by historic right only, but,
so to speak, naturally, as a part of an order of things which a
change in external conditions seemed incapable of disturbing" (_Holy
Roman Empire_, p. 8 of the edition of 1904).
[2] The _de facto_ importance of the event of 476 can only be seen in
the light of later events, and it was not therefore noticed by
contemporaries. Marcellinus is the only contemporary who remarks on
its importance, cf. _Marcellini Chronicon_ (_Mon. Germ. Hist.,
Chronica minora._ ii. 91), _Hesperium Romanae gentis imperium ... cum
hoc Augustulo periit ... Gothorum dehinc regibus Romam tenentibus._
[3] A passage in Malchus, a Byzantine historian (quoted by Bryce,
_Holy Roman Empire_, p. 25, note _u_, in the edition of 1904),
expresses this truth exactly. The envoys sent to Zeno by Odoacer urge
[Greek: os hidias men autois basileias ou deoi koinos de hapochresei
monos on autokrator hep amphoterois tois perasi]. The envoys then
suggest the name of Odoacer, as one able to manage their affairs, and
ask Zeno to give him, _as an officer of the Empire_, the title of
Patricius and the administration of Italy.
[4] According to the view here followed, the Church was the ark in
which the conception of Empire was saved during the dark ages between
600 and 800. Some influence should perhaps also be assigned to Roman
law, which continued to be administered during these centuries,
especially in the towns, and maintained the imperial tradition. But
the influence of the Church is the essential fact.
[5] In the 5th century the title _patricius_ came to attach
particularly to the head of the Roman army (_magister utriusque
militiae_) to men like Aetius and Ricimer, who made and unmade
emperors (cf. Mommsen, _Gesammelte Schriften_, iv. 537, 545 sqq.).
Later it had been borne by the Greek exarchs of Ravenna. The
concession to Pippin of this great title makes him military head of
the Western empire, in the sense in which the title was used in the
5th century; it makes him representative of the Empire for Italy, in
the sense in which it had been used of the exarchs.
[6] See the famous bull _Venerabilem_ (_Corp. Jur. Canon._ Decr.
Greg. i. 6, c. 34).
[7] Even on this view, an imperial coronation at the hands of the
pope was necessary to complete the title; but this was regarded by
the Germans (though not by the pope) as a form which necessarily
followed.
[8] It is a curious fact that imperial titles (_imperator_ and
_basileus_) are used in the Anglo-Saxon diplomata of the 10th
century. Edred, for instance (946-955) is "imperator," "cyning and
casere totius Britanniae," "basileus Anglorum hujusque insulae
barbarorum": Edgar is "totius Albionis imperator Augustus" (cf.
Stubbs, _Const. Hist._ i. c. vii. S 71). These titles partly show the
turgidity of English Latinity in the 10th century, partly indicate
the quasi-imperial position held by the Wessex kings after the
reconquest of the Dane-law. But there seems to be no real ground for
Freeman's view (_Norman Conquest_, i. 548 sqq.), that England was
regarded as a third Empire, side by side with the other Empires of
West and East Europe. That the titles were assumed in order to
repudiate possible claims of the Western Empire to the overlordship
of England is disproved by the fact that they are assumed at a time
when there is no Western emperor. The assumption of an imperial style
by Henry VIII., which is mentioned below, is explained by the
Reformation, and does not mean any recurrence to a forgotten
Anglo-Saxon style.
[9] It is in virtue of this aspect that the Empire is holy. The term
_sacrum imperium_ seems to have been first used about the time of
Frederick I., when the emperors were anxious to magnify the sanctity
of their office in answer to papal opposition. The emperor himself
(see under EMPEROR) was always regarded, and at his coronation
treated, as a _persona ecclesiastica_.
[10] The emperor claimed suzerainty over the greater part of Europe
at various dates. Hungary and Poland, France and Spain, the
Scandinavian peninsula, the British Isles, were all claimed for the
Empire at different times (see Bryce, _Holy Roman Empire_, c. xii.).
The "effective" empire, if indeed it may be called effective,
embraced only Germany, Burgundy and the _regnum Italiae_ (the old
Lombard kingdom in the valley of the Po).
[11] Cf. the Act 25 Henry VIII. c. 22, S 1: "the lawful kings and
emperors of this realm."
[12] The Papacy, consistent to the last, formally protested at the
Congress of Vienna in 1815 against the failure of the Powers to
restore the Holy Roman Empire, the "centre of political unity" (Ed.).
[13] The Turks, occupying Constantinople, have also claimed to be the
heirs of the old emperors of Constantinople; and their sultans have
styled themselves _Keisar-i-Rum_.
[14] This does not, of course, apply to Hungary, which since 1867 has
not formed part of the Austrian empire and is ruled by the head of
the house of Habsburg not as emperor, but as king of Hungary.
EMPIRICISM (from Gr. [Greek: empeiros], skilled in, from [Greek: peira],
experiment), in philosophy, the theory that all knowledge is derived
from sense-given data. It is opposed to all forms of intuitionalism, and
holds that the mind is originally an absolute blank (_tabula rasa_), on
which, as it were, sense-given impressions are mechanically recorded,
without any action on the part of the mind. The process by which the
mind is thus stored consists of an infinity of individual impressions.
The frequent or invariable recurrence of similar series of events gives
birth in the mind to what are wrongly called "laws"; in fact, these
"laws" are merely statements of experience gathered together by
association, and have no other kind of validity. In other words from the
empirical standpoint the statement of such a "law" does not contain the
word "must"; it merely asserts that such and such series have been
invariably observed. In this theory there can strictly be no
"causation"; one thing is observed to succeed another, but observations
cannot assert that it is "caused" by that thing; it is _post hoc_, but
not _propter hoc_. The idea of _necessary_ connexion is a purely mental
idea, an a priori conception, in which observation of empirical data
takes no part; empiricism in ethics likewise does away with the idea of
the absolute authority of the moral law as conceived by the
intuitionalists. The moral law is merely a collection of rules of
conduct based on an infinite number of special cases in which the
convenience of society or its rulers has subordinated the inclination of
individuals. The fundamental objection to empiricism is that it fails to
give an accurate explanation of experience; individual impressions as
such are momentary, and their connexion into a body of coherent
knowledge presupposes mental action distinct from mere receptivity.
Empiricism was characteristic of all early speculation in Greece. During
the middle ages the empiric spirit was in abeyance, but it revived from
the time of Francis Bacon and was systematized especially in the English
philosophers, Locke, Hume, the two Mills, Bentham and the associationist
school generally.
See ASSOCIATION OF IDEAS; METAPHYSICS; PSYCHOLOGY; LOGIC; besides the
biographies of the empirical philosophers.
_In medicine_, the term is applied to a school of physicians who, in the
time of Celsus and Galen, advocated accurate observation of the
phenomena of health and disease in the belief that only by the
collection of a vast mass of instances would a true science of medicine
be attained. This point of view was carried to extremes by those who
discarded all real study, and based their treatment on rules of thumb.
Hence the modern sense of empirical as applied to the guess work of an
untrained quack or charlatan.
EMPLOYERS' LIABILITY, and WORKMEN'S COMPENSATION.[1] The law of England
as to the liability of employers in respect of personal injuries to
their servants is regulated partly by the common law and partly by
statute; but by the Employers' Liability Act 1880, such exceptions have
been grafted upon the common law, and by the Workmen's Compensation Act
1906, principles so alien to the common law have been applied to most
employments that it is impossible now to present any view of this branch
of the law as a logical whole. All that can be done is to state the
nature of the liability at common law. the extension of it effected by
the Employers' Liability Act 1880, and the new liabilities introduced by
later acts.
Common law.
At common law the liability of a master is of a very limited character.
There is, of course, nothing to prevent a master and servant from
providing by special contract in any way they please for their mutual
rights in cases of personal injury to the servant. In such cases the
liability will depend upon the terms of the special contract. But apart
from any special agreement, it may be broadly stated that a master is
liable to his servants only for injuries caused by his own negligence.
Injuries to a servant may arise from accident, from the nature of the
service, or from negligence; and this negligence may be of the master,
of another servant of the master, or of a stranger. If the injury is
purely accidental the loss lies where it falls. If it arises from the
nature of the service, the servant must bear it himself; he has
undertaken a service to which certain risks are necessarily incident; if
he is injured thereby, it is the fortune of war, and no one can be made
responsible. If the injury is caused by the negligence of a stranger,
the servant has his ordinary remedy against the wrong-doer or any one
who is responsible as a principal for the conduct of the wrong-doer. If
it is caused by the negligence of a fellow-servant, he likewise has his
ordinary remedy against the actual wrong-doer; but, by virtue of what is
known as the doctrine of common employment, he cannot at common law make
the master liable as a principal. The only case (independently of modern
legislation: _see below_) in which he can recover damages from the
master is where the injury has been caused by negligence of the master
himself. A master is negligent if he fails to exercise that skill and
care which, in the circumstances of the particular employment, are used
by employers of ordinary skill and carefulness. If he himself takes part
in the work, he must act with such skill and care as may reasonably be
demanded of one who takes upon himself to do work of that kind. If he
entrusts the work to other servants, he must be careful in their
selection, and must not negligently employ persons who are incompetent.
He must take proper care so to arrange the system of work that his
servants are not exposed to unnecessary danger. If tools or machinery
are used, he must take proper care to provide such as are fit and proper
for the work, and must either himself see that they are maintained in a
fit condition or employ competent servants to do so for him. If he is
bound by statute to take precautions for the safety of his servants, he
must himself see that that obligation is discharged. For breach of any
of these duties a master is liable to his servant who is injured
thereby, but his liability extends no further.
Common employment.
That his obligations to a servant are so much less than to a stranger is
chiefly due to the doctrine of common employment. As a rule a master is
responsible for the negligence of his servant acting in the course of
his employment; but, from about the middle of the 19th century, it
became firmly rooted in the law that this principle did not apply where
the person injured was himself a servant of the master and engaged in a
common employment with the servant guilty of the negligence. In effect
this rule protects a master as against his servant from the consequences
of negligence on the part of any other of his servants; to this there is
no qualification except that, for the rule to apply, both the injured
and the negligent servant must be acting in pursuance of a common
employment. They must both be working for a common object though not
necessarily upon the same work.
It is not easy to define precisely what constitutes a common
employment in this sense, and there is peculiarly little judicial
authority as to the limit at which work for the same employer ceases
to be work in a common employment. It does not depend on difference in
grade; all engaged in one business, from the manager to the
apprentice, are within the rule. It does not depend on difference in
work, if the work each is doing is part of one larger operation; all
the servants of a railway company, whether employed on the trains, or
at the stations, or on the line, are in a common employment. It does
not necessarily depend on difference of locality; a servant who packs
goods at the factory and a servant who unpacks them in the shop may
well be in a common employment. On the other hand, it is not enough
that the two servants are working for the same employer, if there is
nothing in common between them except that they are making money for
the same man; apart from special circumstances, the crews of two ships
owned by the same company are probably not in common employment while
navigating their respective ships. The test in each case must be
derived from the view, invented by the courts, upon which the doctrine
was based, namely, that the servant by entering upon the service
consented to run all the risks incidental to it, including the risk of
negligence on the part of fellow-servants; if the relation between the
two servants is such that the safety of the one may, in the ordinary
course of things, be affected by the negligence of the other, that
negligence must be taken to be one of the risks of the employment
assented to by the servant, and both are engaged in a common
employment. In ninety-nine cases out of a hundred it will be found
that the doctrine is applicable, and the master protected from
liability. It is thus seen that, in general, no action will lie
against a master at the suit of his servant, unless the servant can
prove personal negligence on the part of the master causing injury to
the servant. And in such action the master may avail himself of those
defences which he has against a stranger. He may rely upon
contributory negligence, and show that the servant was himself
negligent, and that, notwithstanding the negligence of the master, the
injury was proximately caused by the negligence of the servant. Or
(except in cases where the injury results from a breach of a statutory
duty) he may prove such facts as establish the defence expressed in
the maxim, _volenti non fit injuria_; that is, he may prove that the
injured servant knew and appreciated the particular risk he was
running, and incurred it voluntarily with full understanding of its
nature. Mere knowledge on the part of the servant, or even his
continuing to work with knowledge, does not necessarily establish this
defence; it must be knowledge of such a kind and in such circumstances
that it can be inferred that the servant contracted to take the risk
upon himself. The action at common law is subject to the general rule
that personal actions die with the person; except so far as the remedy
for money loss caused by death by negligence has been preserved in
favour of a husband or wife and certain near relatives, under Lord
Campbell's Act (Fatal Accidents Act 1846).
The act of 1880.
Such was the law up to 1880. So long as industry was conducted on a
small scale, and the master worked with his men, or was himself the
manager, its hardship was perhaps little felt; his personal negligence
could in many cases be established. But with the development of the
factory system, and the ever-growing expansion of the scale on which all
industries were conducted, it became increasingly difficult to bring
home individual responsibility to the employer. As industry passed
largely into the control of corporations, difficulty became almost
impossibility. The employer was not liable to a servant for the
negligence of a fellow-servant, and therefore, in most cases of injury,
was not liable at all. It is not surprising that the condition of things
thus brought about, partly by the growth of modern industry and partly
by the decisions of the courts, caused grave dissatisfaction. The
justice of the doctrine of common employment was vigorously called in
question. In the result the Employers' Liability Act 1880 was passed.
The effect of this act is to destroy the defence of common employment in
certain specified cases. It does not abolish the doctrine altogether,
nor, on the other hand, does it impose upon the master any new standard
of duty which does not exist as regards strangers. All that it does is
to place the servant, in certain cases, in the position of a stranger,
making the master liable for the negligence of his servants
notwithstanding the fact that they are in common employment with the
servant injured. It is still necessary under the act, as at common law,
to prove negligence, and the master may still rely upon the defences of
contributory negligence and _volenti non fit injuria_. But under the act
he cannot, as against the workmen who come within it and in the cases to
which it applies, set up the defence that the negligence complained of
was the negligence of a servant in a common employment. The act does not
apply to all servants. It does not apply to domestic or menial servants,
or to seamen, or to any except railway servants and "any person who,
being a labourer, servant in husbandry, journeyman, artificer,
handicraftsman, miner, or otherwise engaged in _manual_ labour ... has
entered into or works under a contract with an employer, whether the
contract be oral or in writing, and be a contract of service or a
contract personally to execute any work or labour." Whether a servant,
not being one of those specially named, is within the act depends on
whether manual labour is the real and substantial employment, or whether
it is merely incidental thereto; thus a carman who handles the goods he
carries may be within the act, but a tramcar driver or an omnibus
conductor is not. The act does not make the master liable for the
negligence of all his servants, but, speaking generally, only for the
negligent discharge of their duties by such as are entrusted with the
supervision of machinery and plant, or with superintendence, or the
power of giving orders, with the addition, in the case of a railway, of
the negligence of those who are given the charge or control of signals,
points, locomotive engines or trains. The cases dealt with by the act
are five in number; in the first and fourth the words are wide enough to
include negligence of the employer himself, for which, as has been seen,
he is liable at common law. In such instances the workman has an
alternative remedy either at common law or under the act, but in all
other respects the rights given by the act are new, being limitations
upon the defence of common employment, and can be enforced only under
the act.
The first case is where the injury is caused by reason of any defect
in the condition of the ways, works, machinery or plant connected with
or used in the business of the employer, provided that such defect
arises from, or has not been discovered or remedied owing to the
negligence of the employer, or of some person in the service of the
employer and entrusted by him with the duty of seeing that the ways,
works, machinery or plant are in proper condition. The second case is
where the injury is caused by reason of the negligence of any person
in the service of the employer who has any superintendence entrusted
to him (that is, a person whose sole or principal duty is that of
superintendence, and who is not ordinarily engaged in manual labour)
whilst in the exercise of such superintendence. The third case is
where the injury is caused by reason of the negligence of any person
in the service of the employer to whose orders or directions the
workman at the time of the injury is bound to conform and does
conform, where such injury results from his so conforming. The fourth
case is where the injury is caused by reason of the act or omission of
any person in the service of the employer done or made in obedience to
the rules or by-laws of the employer, or in obedience to particular
instructions given by any person delegated with the authority of the
employer in that behalf, provided that the injury results from some
impropriety or defect in such rules, by-laws or instructions. The
fifth case is where the injury is caused by reason of the negligence
of any person in the service of the employer who has the charge or
control of any signal, points, locomotive engine or train upon a
railway.
In all these cases it is provided that the employer shall not be liable
if it can be shown that the workman knew of the defect or negligence
which caused his injury, and failed within a reasonable time to give, or
cause to be given, information thereof to the employer or some person
superior to himself in the service of the employer, unless he was aware
that the employer or such superior already knew of the said defect or
negligence. It was inevitable that these provisions should call for
judicial interpretation, and a considerable body of authority has grown
up about the act. Where general words are used, it must always occur
that, between the cases which are obviously within and those which are
obviously without the words, there are many on the border line. Thus,
under the act, the courts have been called upon to determine the precise
meaning of "way," "works," "machinery," "plant," and to say what is
precisely meant by a "defect" in the condition of each of them. They
have had to say what is included in "railway" and in "train," what is
meant by having "charge" or "control," and to what extent one whose
principal duty is superintendence may participate in manual labour
without losing his character of superintendent, and what is the precise
meaning of negligence in superintendence. These are only illustrations
of many points of detail which, having called for judicial
interpretation, will be found fully dealt with in the text-books on the
subject. A workman who, being within the act, is injured by such
negligence of a fellow-servant as is included in one or other of the
five cases mentioned above, has against his employer the remedies which
the act gives him. These are not necessarily the same as those which a
stranger would have in the like circumstances; the amount of
compensation is not left at large for a jury to determine, but is
limited to an amount not exceeding such sum as may be found to be
equivalent to the estimated earnings, during the three years preceding
the injury, of a person in the same grade employed during those years
in the like employment and in the district in which the workman is
employed at the time of the injury. Moreover, the right to recover is
hedged about with technicalities which are unknown at the common law;
proceedings must be taken in the county court, within a strictly limited
time, and are maintainable only if certain elaborate provisions as to
notice of injury have been complied with. Where the injury causes death
the action is maintainable for the benefit of the like persons as are
entitled under Lord Campbell's act in an action at common law.
Acts of 1897 to 1906.
The law continued in this condition up to 1897. In the majority of cases
of injury to a servant, the doctrine of common employment still
protected the master; and where, under the Employers' Liability Act, it
failed to do so, the liability was of a limited character and often,
owing to technicalities of procedure, difficult to enforce. Moreover,
there is nothing in the act to prevent master and servant from entering
into any special contract they please; and in many trades it became a
common practice for contracts to be made wholly excluding the operation
of the act. In 1893 an attempt was made to alter the law by a total
abolition of the defence of common employment, so as to make a master as
liable to a servant as to a stranger for the negligence of any of his
servants acting in the course of their employment, and at the same time
to prohibit any agreements to forego the rights so given to the servant.
The bill did not become law, and no further change was made until, in
1897, parliament took the first step in what has been a complete
revolution in the law of employers' liability. Up to that year, as has
been seen, the foundation of a master's liability was negligence, either
of the master himself, or, in certain cases, of his servants. But by the
Workmen's Compensation Act 1897, a new principle was introduced, whereby
certain servants in certain employments were given a right to
compensation for injuries, wholly irrespective of any consideration of
negligence or contributory negligence. As regards such servants in such
employments the master was in effect made an insurer against accidental
injuries. The act was confessedly tentative and partial; it dealt only
with selected industries, and even within these industries was not of
universal application. But where it did apply, it gave a right to a
limited compensation in every case of injury by accident arising out of
and in the course of the employment, whether that accident had been
brought about by negligence or not, and whether the injured servant had
or had not contributed to it by his own negligence.
The act applied only to employment on, or in, or about certain
localities where, at the same time, the employer was what the act called
an "undertaker," that is, the person whose business was there being
carried on. If we wanted to know whether a workman was within the act,
we had to ask, first, was he employed on, or in, or about a railway, or
a factory, or a mine, or a quarry, or an engineering shop, or a building
of the kind mentioned in the act; secondly, was he employed by one who
was, in relation to that railway, &c., the undertaker as defined by the
act; and thirdly, was he at the time of the accident at work on, or in,
or about that railway, &c. Unless these three conditions were fulfilled
the employment was not within the act.
The employments to which the act applied comprised railways, factories
(which included docks, warehouses and steam laundries), mines,
engineering works and most kinds of buildings. "Workman" included every
person engaged in an employment to which the act applied, whether by
manual labour or otherwise, and whether his agreement was one of service
or apprenticeship or otherwise, expressed or implied, oral or in
writing.
By the Workmen's Compensation Act 1900, the benefits of the act of 1897
were extended to agricultural labourers.
The Workmen's Compensation Act 1906 (which came into force on the 1st of
July 1907) extended the right of compensation for injuries practically
to all persons in service, and also introduced many provisions not
contained in the acts of 1897 and 1900 (repealed). It does not apply to
persons in the naval or military service of the crown (s. 9), or persons
employed otherwise than by way of manual labour whose remuneration
exceeds two hundred and fifty pounds a year, or persons whose
employment is of a casual nature, and who are employed otherwise than
for the purposes of the employer's trade or business, or members of a
police force, or out-workers, or members of the employer's family
dwelling in his house. But it expressly applies to seamen.
Conditions of claim.
To entitle a workman engaged in an employment to which the act applies
to compensation all the following conditions must be fulfilled: (1)
There must be personal injury by accident. This will exclude injury
wilfully inflicted, unless the injury results in death or serious and
permanent disablement, but the act introduces a new provision by making
the suspension or disablement from work or death caused by certain
industrial diseases "accidents" within the meaning of the act. The
industrial diseases specified in the 3rd schedule of the act were
anthrax, ankylostomiasis, and lead, mercury, phosphorus and arsenic
poisoning or their sequelae. But S 8 of the act authorized the secretary
of state to make orders from time to time including other industrial
diseases, and such orders have embraced glass workers' cataract,
telegraphists' cramp, eczematous ulceration of the skin produced by dust
or liquid, ulceration of the mucous membrane of the nose or mouth
produced by dust, &c. To render the employer liable the workman must
either obtain a certificate of disablement or be suspended or die by
reason of the disease. If the disease has been contracted by a gradual
process, all the employers who have employed the workman during the
previous twelve months in the employment to which the disease was due
are liable to contribute a share of the compensation to the employer
primarily liable. (2) The accident must arise out of and in the course
of the employment. In each case it will have to be determined whether
the workman was at the time of the accident in the course of his
employment, and whether the accident arose out of the employment. It
will have to be considered when and where the particular employment
began and ended. Other difficulties have arisen and will frequently
arise when the workman at the time of the accident is doing something
which is no part of the work he is employed to do. So far as the
decisions have gone, they indicate that if what the workman is doing is
no act of service, but merely for his own pleasure, or if he is
improperly meddling with that which is no part of his work, the accident
does not arise out of and in the course of his employment; but if, while
on his master's work, he upon an emergency acts in his master's
interest, though what he does is no part of the work he is employed to
do, the accident does arise out of and in the course of his employment.
(3) The injury must be such as disables the workman for a period of at
least one week from earning full wages at the work at which he was
employed. (4) Notice of the accident must be given as soon as
practicable after the happening thereof, and before the workman has
voluntarily left the employment in which he was injured; and the claim
for compensation (by which is meant notice that he claims compensation
under the act addressed by the workman to the employer) must be made
within six months from the occurrence of the accident or, in case of
death, from the time of death. Want of notice of the accident or defects
in it are not to be a bar to proceedings, if occasioned by mistake or
other reasonable cause, and the employer is not prejudiced thereby. But
want of notice of a claim for compensation is a bar to proceedings,
unless the employer by his conduct has estopped himself from relying
upon it. (5) An injured workman must, if so required by the employer,
submit himself to medical examination.
When these conditions are fulfilled, an employer who is within the act
has no answer unless he can prove that the injury arose from the serious
and wilful misconduct of the workman. The precise effect of these terms
is not clear; but mere negligence is not within them.
Where the injury causes death, the right to compensation belongs to the
workman's "dependents"; that is, such of the members of the workman's
family as were at the time of the death wholly or in part dependent upon
the earnings of the workman for their maintenance. "Members of a family"
means wife or husband, father, mother, grandfather, grandmother,
step-father, step-mother, son, daughter, grandson, granddaughter,
step-son, step-daughter, brother, sister, half-brother, half-sister. The
act of 1906 makes also a very remarkable departure in including
illegitimate relations in the direct line among "dependents," for where
a workman, being the parent or grandparent of an illegitimate child,
leaves such a child dependent upon his earnings, or, being an
illegitimate child, leaves a parent or grandparent so dependent upon his
earnings, such child or parent is to be included in the "members of a
family."
Amount.
Under the act compensation is for loss of wages only, and is, as has
been said, based upon the actual previous earnings of the injured
workman in the employment of the employers for whom he is working at the
time of the injury. In case of death, if the workman leaves dependents
who were wholly dependent on his earnings, the amount recovered is a sum
equal to his earnings in the employment of the same employer during the
three years next preceding the injury, or the sum of L150, whichever is
the larger, but not exceeding L300; if the period of his employment by
the same employer has been less than three years, then the amount of his
earnings during the three years is to be deemed to be 156 times his
average weekly earnings during the period of his actual employment under
the said employer. If the workman leaves only dependents who were not
wholly dependent, the amount recovered is such sum as may be reasonable
and proportionate to the injury to them, but not exceeding the amount
payable in the previous case. If the workman leaves no dependents, the
amount recoverable is the reasonable expenses of his medical attendance
and burial, not exceeding L10. In case of total or partial incapacity
for work resulting from the injury, what is recovered is a weekly
payment during the incapacity after the second week not exceeding 50% of
the workman's average weekly earnings during the previous twelve months,
if he has been so long employed, but if not, then for any less period
during which he has been in the continuous employment of the same
employer; such weekly payment is not to exceed L1--and in fixing it
regard is to be had to the difference between the amount of his average
weekly earnings before the accident and the average amount which he is
able to earn after the accident. Any payments, not being wages, made by
the employer in respect of the injury must also be taken into account.
The weekly payment may from time to time be reviewed at the request of
either party, upon evidence of a change in the circumstances since the
award was made, and after six months may be redeemed by the employer by
payment of a lump sum. A workman is within the act although at the time
of the injury he has been in the employment for less than two weeks, and
although there are no actual earnings from the same employer upon which
a weekly average can be computed. But how are the average weekly
earnings which he would have earned from the same employer to be
estimated? The question must be determined as one of fact by reference
to all the circumstances of the particular case. Suppose the workman to
be engaged at six shillings a day and injured on the first day. If it
can be inferred that he would have remained in such employment for a
whole week, his average weekly earnings from the same employer may be
taken at thirty shillings. If it can be inferred that he would have
worked one day and no more, his average weekly earnings from the same
employer may be taken at six shillings.
All questions as to liability or otherwise under the act, if not settled
by agreement, are referred to arbitration in accordance with a scheme
prescribed by the act. Contracting out is not permitted, save in one
event: where a scheme of compensation, benefit or insurance for the
workmen of an employer has been certified by the Registrar of Friendly
Societies to be not less favourable to the workmen and their dependents
than the provisions of the act, and that where the scheme provides for
contributions by the workmen, it confers benefits at least equal to
those contributions, in addition to the benefits to which the workmen
would have been entitled under the act, and that a majority (to be
ascertained by ballot) of the workmen to whom the scheme is applicable
are in favour of it, the employer may contract with any of his workmen
that the provisions of the scheme shall be substituted for the act;
such certificate may not be for more than five years, and may in certain
circumstances be revoked. The act does not touch the workman's rights at
common law or under the Employers' Liability Act, but the workman, if
more than one remedy is open to him, can enforce only one. When the
circumstances create a legal liability in some other person, e.g. where
the injury is caused by the negligence of a sub-contractor or of a
stranger, in such cases the employer, if required to pay compensation
under the act, is entitled to be indemnified by such other person.
Under the Factory Acts, offences, when they result in death or bodily
injury to health, may be punished by fine not exceeding L100, and the
whole or any part of such fine may be applied for the benefit of the
injured person or his family, or otherwise as the secretary of state
determines. Similar provisions occur in the Mines Acts. Any sum so
applied must be taken into account in estimating compensation under
the Employers' Liability and Workmen's Compensation Acts.
Germany.
_Law in Other Countries._--In _Germany_ (q.v.) there is a system of
compulsory state insurance against accidents to workmen. The law dates
from 1884, being amended from time to time (1885, 1886, 1887, 1900,
1903) to embrace different classes of employment. Occupations are
grouped into (1) industry; (2) agriculture; (3) building; (4) marine, to
all of which one general law, with variations necessary to the
particular occupation in question, is applicable. There are also special
provisions for prisoners and government officials. Practically every
kind of working-man is thus included, with the exception of domestic
servants and artisans or labourers working on their own account. All
workmen and officials whose salary does not exceed L150 a year come
within the law. No compensation is payable where an accident is caused
through a person's own gross carelessness, and where an accident has
been contributed to by a criminal act or intentional wrongdoing the
compensation may be refused or only partially allowed. With these
exceptions, compensation for injury is payable in case of injury so long
as the injured is unfit to work; in case of total incapacity an
allowance is made equal to two-thirds of the injured person's annual
earnings, in case of partial incapacity, in proportion to the degree
that his wage-earning capacity has been affected. In case of death the
compensation is either burial money or an allowance to the family
varying in amount from 20 to 60% of the annual earnings according to
circumstances. The provision of compensation for accidents falls
entirely upon employers, and in order to lighten the burden thus falling
upon them, and at the same time to guard against the possible insolvency
of an individual employer, associations or self-administering bodies of
employers have been formed--usually all the employers of each particular
branch of industry in a district. These associations fix the amount of
compensation after each accident, and at the end of the year assess the
amount upon the individual employers. There is an appeal from the
association to an arbitration court, and in particularly complicated
cases there may be a further appeal to the imperial insurance
department. No allowance is paid until after the lapse of thirteen weeks
from the accident, and in the meantime the injured person is supported
from a sick fund to which the employers contribute one-third, the
employee contributing two-thirds. In Germany quite twelve millions of
workpeople are insured; in 1905 a sum of nearly eight millions sterling
was paid for accidents, and a million and a half to the families of
those killed in accidents.
Austria.
In _Austria_ the compulsory insurance of workmen was provided for by a
law of 1887, with subsequent amendments. Briefly, nearly every class of
industrial worker is included under the Austrian law, which is
administered by special territorial insurance institutions, each of them
embracing particular classes of industries or workers. The institutions
are managed by committees, one-third of the members of each committee
being chosen by the minister of the interior, one-third by the employers
and one-third by the workers. Compensation is payable, in case of
accidents, on a scale proportionate to the injured person's wages during
the preceding year. In case of death, a certain sum is paid for funeral
expenses, an annuity to the widow, if one is left, equal to 20% of the
deceased's annual wages--if the widow remarries, she receives a lump sum
equal to three annual payments in liquidation of the annuity--an annuity
to each legitimate child equal to 15%, or, if the child has no mother,
equal to 20% of the father's wages; an annuity to the father or mother,
if dependent on the deceased for support, equal to 20% of the annual
wages. As in the English act of 1906 illegitimate children are
recognized by being granted an annuity in the case of the death of a
father equal to 10% of his wages. In no case can the total amount of the
annuities exceed 50% of the deceased's annual wages. Where the accident
has resulted in total incapacity, the workman receives an annuity equal
to 60% of his wages. No allowance is paid until after the fourth week,
during which time the injured is supported by the sick-insurance
institutions. The provision for the system is raised by contributions to
the extent of nine-tenths by the employers and one-tenth by the workers,
deducted from their wages. Instead of the German method by which an
annual payment equal to the amount disbursed is required from each
employer, he is required to provide the full amount necessary for the
complete payment of the pension, this amount being placed to the credit
of a special insurance fund.
France.
In _France_ a system of compulsory state insurance against accidents was
created by a law of 1898. The principal feature in the French law is the
attempt to meet the possible insolvency of the employer by the
establishment of a special guarantee fund, created by a small addition
to the "business tax" (_contribution des patentes_), and, in the case of
the mining industry, by a small tax on mines.
Norway.
_Norway_, by a law of 1894, amended in 1897 and 1899, adopted a system
of compulsory insurance modelled to a great extent on the German system.
Instead, however, of a trade association as in Germany, or a district
insurance association as in Austria, there is a government insurance
office, in which employers have to insure their workmen.
Denmark.
In _Denmark_ a law was passed in 1897 rendering employers personally
liable for the amount of compensation for accidents, but employers may
relieve themselves of this liability by insuring workmen in an assurance
association approved of by the minister of the interior. This course,
however, is discretionary with employers.
Italy.
In _Italy_, although many attempts were made between 1889 and 1898 to
introduce a system of compulsory insurance, it was not until the latter
year that the principle was adopted. There is a National Bank for the
Insurance of Working men against Accident (_Cassa Nazionale di
Assicurazione per gli infortuni degli operaji sul lavoro_), created
under a law of 1883. It has special privileges, such as exemption from
taxation and the employment of the branch offices of the state
post-office savings bank as local offices. Under the law of 1898 there
is a primary obligation on the employer to insure his workmen with the
National Bank, but he may, if he prefers, insure with other societies
approved by government. Employers employing about five hundred workmen
may, instead of insuring, establish a fund for the payment of not less
than the statutory compensation, subject to giving adequate security for
the sufficiency of the fund. Exemption from compulsory insurance is
granted to employers who have established a mutual insurance
association, which must comply with certain prescribed conditions.
Railway companies, also, are exempt, if they have relief funds which
conform with the provisions of the act.
Spain.
In _Spain_ an act of the 30th of January 1900, adopted the principle of
the personal responsibility of the employer for accidents to workmen
other than those due to vis major. The act also lays down regulations
for preventing accidents in dangerous trades, and releases the employer
from personal liability on effecting adequate insurance of his workmen
with an approved insurance company.
Holland.
_Holland_ has adopted the principle of compulsory insurance by a law of
the 2nd of January 1901. An employer has to pay the necessary premium to
the State Insurance Office, or by depositing adequate security with the
State Office he may undertake the payment of the prescribed
compensation himself. Or he may transfer his liability to an insurance
company, provided the company deposit adequate security with the State
Office. The State Insurance Office is under the management of directors
appointed by the crown, and decides on all questions as to compensation;
there is also a "Supervisory Board" of the State Office with joint
representation of employers and workmen. There is an appeal from the
State Office to Councils of Appeal, and from them to a National Board of
Appeal.
Greece.
_Greece_ has a law of the 21st of February 1901, providing for
compensation for accidents causing incapacity of more than four days'
duration to workmen in mines, quarries and smelting works. The employer
is exclusively liable for such compensation and for medical expenses
during the first three months; after that time he is liable for
one-half, the other half being borne by a miners' provident fund,
supported by certain taxes on the properties affected, fines, &c.
Sweden.
By a law of the 5th of July 1901, _Sweden_ adopted the principle of the
personal liability of the employer for industrial accidents. The
employer can, however, insure himself against liability in the Royal
Insurance Institute. Compensation becomes payable after the expiration
of sixty days from the date of the accident.
Russia.
_Russia_ has a law which came into force on the 1st of January 1904.
Under this law employers in certain specified industries are bound to
indemnify workers for incapacity of more than three days' duration due
to injury arising out of their work. Employers are exempt from liability
by insuring their workmen in insurance companies whose terms are not
less favourable than those laid down by the law.
Belgium.
_Belgium_ passed a law dealing with industrial accidents on the 24th of
December 1903. It adopts the principle of the personal liability of the
employer in certain specified trades or industries. There is a power of
extension to such other undertakings as may be declared dangerous by the
Commission on Labour Accidents. Employers may exempt themselves from
their liability by contracting for the payment of compensation by an
insurance company approved by the government or by the National Savings
and Pension Fund. Where an employer does not so contract, he must (with
certain exemptions) contribute to a special insurance fund. The law of
1903 also established a permanent Commission on Labour Accidents.
Switzerland.
_Switzerland_ in 1899 adopted a law providing for accident insurance,
but it was defeated on referendum in May 1900.
United States.
In the _United States_ the law mainly depends on the doctrine of common
employment, and the extent to which this doctrine is applied varies
considerably in the different states, more particularly as to who are
and who are not to be regarded as fellow-servants. The tendency,
however, has been to increase the liability of the employer for the
negligence of a fellow-servant, and in the case of employment on
railways many states have passed laws either modifying or abrogating the
doctrine. Colorado, by a law of 1901, has entirely abrogated it; and
Alabama, Massachusetts and New York have laws generally similar to the
English act of 1880. But the greatest departure, due to the initiative
of President Roosevelt, has been the passing by the Federal Congress of
the laws of April 22 and May 30, 1908, one giving damages to injured
employees of interstate carriers by railroad, and common carriers by
railroad in Territories, the District of Columbia, the Canal Zone and
other territory governed by Congress, and the other giving regular wages
for not more than one year to injured employees of the U.S. government
in arsenals, navy yards, construction work on rivers, harbours and
fortifications, hazardous work in connexion with the Panama Canal or
Reclamation Service, and in government manufacturing establishments.
These national laws, which were intended to serve as an example to the
states, specifically provided for employers' liability and for the
non-recognition of the doctrine of common employment.
British Colonies.
Most of the British colonial states have adopted the principle of the
English Workmen's Compensation Act of 1897, and the various colonial
acts are closely modelled on the English act, with more or less
important variations in detail. The New Zealand Act was passed in 1900,
and amended in 1901, 1902, 1903 and 1905. The act of 1905 (No. 50) fixes
the minimum compensation for total or partial disablement at L1 a week
when the worker's previous remuneration was not less than 30s. a week.
South Australia passed a Workmen's Compensation Act in 1900 and Western
Australia one in 1902. New South Wales passed one in 1905, and British
Columbia in 1902.