The document discusses the doctrine of common employment in England. Some key points: 1. The doctrine was established in 1837 and held that a master was not liable for injuries caused by one servant to another in the course of their employment. 2. It was developed through several court cases to include elements like both servants working for the same master. 3. The doctrine protected masters from liability but was criticized for infringing on workers' rights. Several exceptions and laws were later introduced to mitigate the harsh effects. 4. By the late 19th century the doctrine shifted more in favor of workers through exceptions for breach of statutory duty and limitations to the defense of volenti non fit injuria (consent).

1. 1
The Doctrine of Common Employment In England
Abstract
The doctrine of common employment it is a well known principle in England established by lord
Abinger in the year of 1837 in the case of priestly v fowler1. The doctrine was later developed in
the case of Hutchinson v York Newcastle Railway corp2. The doctrine simply based on the
liability towards the master to the injury caused by a servant to another servant of the same
master on the course of employment such that such kind of damage the master would not be
liable and hence the injured party could not sue or bring an action against the master. There for
protecting the master from liabilities that arises of it.
In view of this remembrance this article will focus on several areas in which his doctrine
pass through and its effect in England starting with the development of the doctrine in England ,
reasons why the master was not held liable for such injury committed by his servant also the
doctrine as an exception to employers liability, essentials for this doctrine to be used as a
defence some of the exception for this doctrine and different laws which were passed concerning
this doctrine and last abolition of the doctrine of common employment in England.
1. Definition of terms
Before having the thorough discussion on the question is better to understand the concepts of
terms which the discussion is concerned.
Employment refers to as the relationship between the master and the servant where by a servant
is working for the interest of him or her and the master, and the master pays the servant for the
works or jobs him or her did3.
Employer is a person who controls and directs a worker under an express or implied contract of
hire and who pays the worker’s salary or wages4.
1 1837 3 M and W 1
2 1850 3
3 Garner, Black’s law dictionary 8th Edition
4 Ibid

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Employee is a person who works in the services of another person (employer) under an express
or implied contract of hire, under which the employer has the right to control the details of work
performance5.
2. Introduction
The doctrine of common employment refers as to the doctrine which was established by Lord
Abinger in the case of Priestly v Fowler in the year of 1837 during industrial revolution in
England in the favor of employers against the employees not to be liable in the injuries obtained
in the course of employment as the results of the negligence of his fellow employee6.
After having seen the general definition of terms, let us move to the main discussion on the
Doctrine of Common Employment in England in this article.
The general rule is that, a master is liable for the torts committed by his servant or the
damages or injuries obtained by a servant in the course of employment, but the doctrine of
common employment came in England legal system in the year of 1837 to subject the general
rule for a master to be liable for the torts or injuries obtained a servant in the course of
employment as a results of the negligence of his fellow employee.
This rule was firstly propounded by Lord Abinger in the case of Priestly v Fowler7 where
by the plaintiff obliged that he was directed by the defendant , his employer to go in van
conducted by another servant and the van being in an unsafe condition and overloaded broke
down and the plaintiff though was fractured. Lord Abinger dismissed8 it was stated that;
“A servant must be deemed by accepting the services to have consented to take its risks also and
those of risks includes the fault of his fellow servants”
3. Essential Element for the Doctrine of Common Employment
There about four essentials elements which can be seen therein in the doctrine of common
employment in England namely as;
3.1 Both of them must be the servants of the same master
5 Ibid
6 Richard owen 3rd Edition 2000, Essential Torts Law University of Glamorgan Law School , p 57
7 (1837)3 M and W 1
8 Indignantly , Radcliffe v. Robble motor services Ltd 1938 ac 213

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The doctrine of common employment in England so as a master not be liable for the torts of his
employee to his fellow employee was that both of them was must be under the control of the
same master and not otherwise, for instance ‘A’ and ‘B’ was supposed to be controlled by ‘C’
who is the master and pays both salary.
3.2 The injuries must be associated or resulted in the course of employment
In the sense that, the damages or injuries must be occurred in the course of employment which
means that both were engaged on working in the same industry or factory, it was regarded the
injuries or damages was resulted from the negligence of his fellow employee.
3.3 The injuries must be as the results of the negligence of his fellow servants
Negligence has three elements namely as duty of care to others, breach of duty to others and the
plaintiff must have been suffered same damages as the results of the breach of duty of care, and
this was seen even in the case of theodelina alphaxad a minor s/t next friend v the medical officer
i/c, nkinga hospital9 where by the High Court of Tabora Katiti J gave his decision was based on
the above elements of negligence. So the master was not liable due to the fact that above
elements was to taken by the employees themselves and not the master, due to this reason the
master was held not be liable unless was him as the one who caused that negligence.
3.4 The servant must has been suffered the damages
Though the servant obtained damages but there were no any legal proceedings against the master
in liability to pay compensation against his workman, and this can be seen in the principle of
unholy trinity rule which defeated generally the rights of the servant from instituting legal
proceedings against the master.
4. Reasons Why Master Was Not Held Liable.
The following were the principles which developed in the doctrine of common employment in
England whereby seen as justifiability for the master not be liable for the injuries obtained by the
servant in the course of employment;
4.1 The principle of contributory negligence
91992 TLR 235 HC

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Under the doctrine of common employment, the servant was said to take on the risks of
negligence of his servants, he did not take the risks of his employer being negligence and could
sue his employer but only of the absence of contributory negligence on the employee’s part.
Contributory negligence implies an act which has been caused by both parties contributing for
the occurrence of such act. Therefore the master was excluded from being on liability due to the
fact that, the employee themselves failed to take a reasonable care against each other
automatically the act occurred10.
4.2 Volenti non fit injuria
This phrase of implies consent, consent usually is used in law of contract where by not only
consent but free consent in the sense that is not associated by undue influence, fraud, coesion,
mistake of misrepresentation. In the doctrine of common employment in England it was seen that
if the employee knows the risks, he would be considered as volenti no fit injuria and then his
claims could be defeated. This was even seen in the case of Smith v. Backer11 in this case the
court held that the employer is liable not only because the plaintiff had consented thus the
employer would not be liable but rather the employer was liable as for failure to provide a
reasonable safe place for employment.
4.3 The principle of unholy trinity
This was the principle in which was functus oficio means final and conclusive to defeat generally
the rights of employees injuries as the results of negligence of his fellow employees by
combining both the doctrine of common employment, contributory negligence, and volenti non
fit injiria12, because no any legal action was allowed by the employees to file a case before the
court of law for compensation as a remedy.
Therein after, this doctrine of common employment in England was too harsh and
infringed the rights of the workers because it was a period of industrial revolution in Europe
where by many injuries increased, and workman obtained serious injuries as a results the states at
all stated at least to reduce the harshness of this doctrine of common employment by trying to
improve the conditions of the employees.
10 Richard owen 3rd Edition 2000, Essential Torts Law University of Glamorgan Law School , p 57
11 1819
12 Richard Owen 3rd Edition 2000, Essential Torts Law University of Glamorgan Law School , p 57

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5. Shifting From The Rule
In the latter half of the 19th century various devices were developed to mitigate the
harshness of the doctrine of common employment saw a swing in favor of the workman. A
workman was now being considered.
5.1 Breach of statutory duty
In the year of 1898 is where the courts tried to mitigate the harshness of the doctrine of common
employment by enacting legislations which guided the sphere of employment and in case any
duty inserted in the statutes the master was suppose to comply with it and in case the master did
not follow it was regarded as breached a statutory duty of care to his employees because
provided all instructions to masters on their masters such as to pay compensation and provision
of safe equipment and place of working, for example the case of Groves v Lord Wimborne13 in
which it was held that an employer was liable to a workman for an injury caused by a breach of
statutory duty. If a duty was placed on an employer by statute, the employer did not escape
liability if he delegated performance to another.
5.2 Volenti non fit injuria
This phrase simply means consent, and not mere consent but free consent in the sense that, the
consent does not associated with any undue influence, fraud, mistake, misrepresentation or
cohesion. Under the doctrine of common employment in England in consent to the workman was
not even applies nature risk of work, so this kind of consent was withdrew in the case Smith v
Baker and Sons14 that the volenti defence would rarely apply to employees, as they said that
there had to be free consent when the employee ran the risk, so this a least reduced infringement
of rights to workman because they can sue the master.
5.3 No fault compensation
This was the rule which was established in the year of 1897 where by the master was liable
though himself did not cause any effects to the employees, and this rule can be compared with
13 1898
14 1891

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that of strictly liability which entails that no faulty but compensation. There for it was to be
considered that although the master is not the actual person who caused injury but he should still
be held liable.
6. Exception to the Doctrine of Common Employment
6.1 Duty to provide proper appliances
The appliances of work were supposed to be provided to the workman which could assist them
on their activities so as they could not obtain unnecessary suffering on working places. For
example
le in the case of Smith v Baker and Sons, it was held that an employer owed a duty to an
employee to provide proper appliances, where Lord Herschel
Said,
“it is quite clear that the contract between employer and employed involves on the part of
the former the duty to take reasonable care to provide proper appliances, and to maintain them in
a proper condition and so to carry on the operations as not to subject those employed by him to
unnecessary risk”.
In this case this was the duty in which a master of any company was to comply with it failure to
act was liable in case a workman obtains any injuries in the company but if rather the employee
comply by providing then the master cannot rely or use this doctrine as a defence.
6.2 Duty to provide competent staff
At common law, an employer owes a duty to an employee to select competent fellow employees.
Though this duty has lost some of its importance since the abolition of the doctrine of common
employment but still retains its importance in one area because it is used until today. The courts
are reluctant to make employers vicariously liable for the violent acts of an employee which are
regarded as being outside the course of employment. Both these examples may constitute breach
of the primary duty to provide competent staff.
In the case of Hudson v Ridge Manufacturing Co Ltd15, an employer breached his
primary duty where an employee was injured by a fellow employee, who was a notorious
prankster. The employer should have put an end to the pranks .An employer is not liable where
15 1957

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the horseplay is unforeseeable. Even in the case of Smith v Crossley Bros16, the plaintiff suffered
severe internal injuries when a fellow apprentice approached him from behind and placed a
compressed air pipe close to his rectum and signaled to another employee to switch on the
compressed air. In this case, it was held that the employer could not have foreseen that the
apprentice would have done such a thing.
6.3 Employer must check that the system is complied with
In General Cleaning Contractors v Christmas17, it was held that the employer must check that
the system is being complied with. Although Lord Denning said that this was a proposition of
good sense, so, for example, if a workman is provided with protective clothing it is not necessary
to check that he actually wears it. In the words of Viscount Simmonds: ‘I deprecate any tendency
to treat the relation of employer and skilled workman as equivalent to that of nurse and imbecile
child’.
7. Enactment of Different Laws
In 1897, an injured workman could receive compensation independently of the law when a no
fault compensation scheme for work accidents was introduced by the Workman’s Compensation
Act 1897.
In 1948, and even the National Insurance (Industrial Injuries) Act 1946 came into force
whereby benefits became payable to victims of industrial diseases and virtually every one
employed under a contract of service or apprenticeship became entitled to benefits under the
scheme. The National Insurance (Industrial Injuries) Act 1946 has now been replaced by the
Social Security Act 1975. All these laws came specifically on provision of good standards of
treatment or life of the workman.
As seen above, the doctrine of common employment was harsh to the employees because
it defeated their legal rights especially on filing legal proceedings against the master, man laws
were enacted not only to mitigate the effects of the doctrine of common employment but also to
abolish the doctrine totally, the following was the steps taken to stop the doctrine of common
employment from continuing being used as a defence for the masters to exempt themselves from
16 1951
17 1953

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the liabilities. The result was passing of employer liability Act18 which introduces number of
exception to it.
8. Abolition of the Doctrine of Common Employment
The doctrine of common employment was abolished by section 119. An employer can now be
vicariously liable to an employee for the negligence of a fellow employee. According to the said
section 120 it states that
“It shall not be a defence to any employer who is sued in respect of personal injuries
caused by negligence of a person employed by him that the person was at the time the injury was
caused in common employment with the person injured”
Despite the abolition of the doctrine of common employment, the primary duties still have an
importance in two situations whereby an employer can be liable for the torts of his servant or
employee or an independent contractor:
1. An employer is only vicariously liable for torts committed in the course of employment
of an employee. An employer may not be vicariously liable for an employee’s tort, since
it was not committed in the course of employment.
2. Vicarious liability does not extend to an independent contractor but an employer may still
be liable to an employee where he has entrusted work to an independent contractor.
After the abolition of the doctrine of common employment in common law legal system the
following were the duties which imposed to the masters on their companies or industries where
the employees were working these duties were known as personal non-delegable duties were
created and owed by the employer to the employee. The employer remained responsible for the
performance of these duties even though performance may have been delegated to an employee.
9. CONCLUSION
For protecting the workers and servant which conducts work for the employer in the course of
employment, this doctrine was unfair a harsh as it removed the right of weaker party thus the
worker the right to bring claims against his employer hence creating a shield for the employer
something which brought a lot of criticism among people which finally to its demise or abolition
18 1880
19 Law Reform (Personal Injuries) Act 1948
20 IBIDI

9. 9
as it was regarded to be not in favor of the majority and unjust law. Also Something important to
note is that the doctrine was not only applied in England but in other parts as well, it’s only for
the purpose of this article that the limitation are in England but more extensively the doctrine
applied in India as was decided by privy council in the case of governor general in council v
constance zena wells21 in which the council stated that doctrine of common employment was
applicable in India although its scope has been limited by Indian employer’s liability Act22. In
Tanzania also the doctrine was abolished with the enactment of law reform, fatal accident and
personal injury miscelleneous provision23. There for as a doctrine, it was established to protect
employer’s interest while leaving aside workman right.
21 AIR 1950 PC 22
22 1938 section 3d
23 Cap 310