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• To the Honourable Oliver Wendell Holmes, Junr., a Justice of the Supreme Judicial Court of the Commonwealth of Massachusetts.
• Advertisement to the Fourth Edition.
• Addenda.
• Year Books Cited.
• The Law of Torts.
• Book I.—: General Part.
• Chapter I.: The Nature of Tort In General.
• Chapter II.: Principles of Liability.
• Chapter III.: Persons Affected By Torts.
• Chapter IV.: General Exceptions.
• Chapter V.: Of Remedies For Torts.
• Book II.: Specific Wrongs.
• Chapter VI.: Personal Wrongs.
• Chapter VII.: Defamation.
• Chapter VIII.: Wrongs of Fraud and Malice.
• Chapter IX.: Wrongs to Possession and Property.
• Chapter X.: Nuisance.
• Chapter XI.: Negligence ( a ) .
• Chapter XII.: Duties of Insuring Safety.
• Chapter XIII.: Special Relations of Contract and Tort.
• Appendix
• Appendix A. Historical Note On the Classification of the Forms of Personal Action.
• Appendix B. Employers’ Liability Act, 1880.
• Appendix C. Statutes of Limitation.
• Appendix D. Contributory Negligence In Roman Law.
• Draft of a Civil Wrongs Bill, Prepared For the Government of India.

APPENDIX B.

EMPLOYERS’ LIABILITY ACT, 1880.

(43 & 44 Vict. c. 42.)

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

Amendment of law.1. Where after the commencement of this Act personal injury is caused to a workman

• (1.) By reason of any defect(a) in the condition of the ways(b) , works(c) , machinery, or plant(d) connected with or used in the business of the employer(e) ; or
• (2.) By reason of the negligence of any person in the service of the employer who has any superintendence entrusted to him(f) whilst in the exercise of such superintendence(g) ; or
• (3.) 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 was bound to conform(h) , and did conform, where such injury resulted from his having so conformed(i) ; or
• (4.) 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 byelaws of the employer, or in obedience to particular instructions given by any person delegated with the authority of the employer in that behalf; or
• (5.) By reason of the negligence of any person in the service of the employer who has the charge or control(k) of any signal, points, locomotive engine, or train upon a railway(l) ,

the workman, or in case the injury results in death, the legal personal representatives of the workman, and any persons entitled in case of death(m) , shall have the same right of compensation and remedies against the employer as if the workman had not been a workman of nor in the service of the employer, nor engaged in his work(n) .

Exceptions to amendment of law.2. A workman shall not be entitled under this Act to any right of compensation or remedy against the employer in any of the following cases; that is to say,

• (1.) Under sub-section one of section one, unless the defect therein mentioned arose from, or had 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 were in proper condition(o) .
• (2.) Under sub-section four of section one, unless the injury resulted from some impropriety or defect in the rules, byelaws, or instructions therein mentioned; provided that where a rule or byelaw has been approved or has been accepted as a proper rule or byelaw by one of Her Majesty’s Principal Secretaries of State, or by the Board of Trade or any other department of the Government, under or by virtue of any Act of Parliament, it shall not be deemed for the purposes of this Act to be an improper or defective rule or byelaw.
• (3.) In any case where 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(p) .

Limit of sum recoverable as compensation.3. The amount of compensation recoverable under this Act shall not exceed such sum as may be found to be equivalent to the estimated earnings, during the three years preceding the injury, or 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.

Limit of time for recovery of compensation.4. An action for the recovery under this Act of compensation for an injury shall not be maintainable unless notice(q) that injury has been sustained is given within six weeks, and the action is commenced within six months from the occurrence of the accident causing the injury, or, in case of death, within twelve months from the time of death: Provided always, that in case of death, the want of such notice shall be no bar to the maintenance of such action if the judge shall be of opinion that there was reasonable excuse for such want of notice.

Money payable under penalty to be deducted from compensation under Act.5. There shall be deducted from any compensation awarded to any workman, or representatives of a workman, or persons claiming by, under, or through a workman in respect of any cause of action arising under this Act, any penalty or part of a penalty which may have been paid in pursuance of any other Act of Parliament to such workman, representatives, or persons in respect of the same cause of action; and where an action has been brought under this Act by any workman, or the representatives of any workman, or any persons claiming by, under, or through such workman, for compensation in respect of any cause of action arising under this Act, and payment has not previously been made of any penalty or part of a penalty under any other Act of Parliament in respect of the same cause of action, such workman, representatives, or person shall not be entitled thereafter to receive any penalty or part of a penalty under any other Act of Parliament in respect of the same cause of action.

Trial of actions.6.— (1.) Every action for recovery of compensation under this Act shall be brought in a county court, but may, upon the application of either plaintiff or defendant, be removed into a superior court in like manner and upon the same conditions as an action commenced in a county court may by law be removed(r) .

(2.) Upon the trial of any such action in a county court before the judge without a jury one or more assessors may be appointed for the purpose of ascertaining the amount of compensation.

(3.) For the purpose of regulating the conditions and mode of appointment and remuneration of such assessors, and all matters of procedure relating to their duties, and also for the purpose of consolidating any actions under this Act in a county court, and otherwise preventing multiplicity of such actions, rules and regulations may be made, varied, and repealed from time to time in the same manner as rules and regulations for regulating the practice and procedure in other actions in county courts.

“County court” shall, with respect to Scotland, mean the “Sheriff’s Court,” and shall, with respect to Ireland, mean the “Civil Bill Court.”

In Scotland any action under this Act may be removed to the Court of Session at the instance of either party, in the manner provided by, and subject to the conditions prescribed by, section nine of the Sheriff Courts (Scotland) Act, 1877.40 & 41 Vict. c. 50.

In Scotland the sheriff may conjoin actions arising out of the same occurrence or cause of action, though at the instance of different parties and in respect of different injuries.

Mode of serving notice of injury.7. Notice in respect of an injury under this Act shall give the name and address of the person injured, and shall state in ordinary language the cause of the injury(s) and the date at which it was sustained, and shall be served on the employer, or, if there is more than one employer, upon one of such employers.

The notice may be served by delivering the same to or at the residence or place of business of the person on whom it is to be served.

The notice may also be served by post by a registered letter addressed to the person on whom it is to be served at his last known place of residence or place of business; and, if served by post, shall be deemed to have been served at the time when a letter containing the same would be delivered in the ordinary course of post; and, in proving the service of such notice, it shall be sufficient to prove that the notice was properly addressed and registered.

Where the employer is a body of persons corporate or unincorporate the notice shall be served by delivering the same at or by sending it by post in a registered letter addressed to the office, or, if there be more than one office, any one of the offices of such body.

A notice under this section shall not be deemed invalid by reason of any defect or inaccuracy(t) therein, unless the judge who tries the action arising from the injury mentioned in the notice shall be of opinion that the defendant in the action is prejudiced in his defence by such defect or inaccuracy, and that the defect or inaccuracy was for the purpose of misleading.

Definitions.8. For the purposes of this Act, unless the context otherwise requires,—

The expression “person who has superintendence entrusted to him” means a person whose sole or principal duty is that of superintendence, and who is not ordinarily engaged in manual labour(u) :

The expression “employer” includes a body of persons corporate or unincorporate:

38 & 39 Vict. c. 90. The expression “workman” means a railway servant and any person to whom the Employers and Workmen Act, 1875, applies(x) .

Commencement of Act.9. This Act shall not come into operation until the first day of January, one thousand eight hundred and eighty-one, which date is in this Act referred to as the commencement of this Act.

Short title.10. This Act may be cited as the Employers’ Liability Act, 1880, and shall continue in force till the thirty-first day of December one thousand eight hundred and eighty-seven, and to the end of the then next Session of Parliament, and no longer, unless Parliament shall otherwise determine, and all actions commenced under this Act before that period shall be continued as if the said Act had not expired.

[The Act has been continued from time to time since 1887. Many proposals for amendment of it have been made, but none has yet become law.]

APPENDIX C.

STATUTES OF LIMITATION.

An Acte for lymytacion of Accions, and for avoyding of Suits in Lowe.

(21 James I. c. 16.)

S. 3. And be it further enacted, that all accions of trespas, quare clausum fregit, all accions of trespas, detinue, accion sur trover and replevyn for taking away of goods and cattell, all accions of accompt and uppon the case, other than such accompts as concerne the trade of merchandize betweene marchant and marchant, their factors or servants, all accions of debt grounded upon any lending or contract without specialtie, all accions for arrerages of rents, and all accions of assault menace battery wounding and imprisonment, or any of them which shalbe sued or brought at any tyme after the end of this present session of parliament shalbe commenced and sued within the tyme and lymytacion hereafter expressed, and not after (that is to saie) the said accions uppon the case (other then for slander,) and the said accions for accompt, and the said accions for trespas debt detinue and replevin for goods or cattell, and the said accion of trespas, quare clausum fregit, within three yeares next after the end of this present session of parliament, or within sixe yeares next after the cause of such accions or suite, and not after; and the said accions of trespas of assault battery wounding imprisonment, or any of them, within one yeare next after the end of this present session of parliament, or within foure yeares next after the cause of such accions or suite, and not after; and the said accions uppon the case for words, within one yeare after the end of this present session of parliament, or within two yeares next after the words spoken, and not after. . . .

S. 7. Provided neverthelesse, and be it further enacted, that if any person or persons that is or shalbe intituled to any such accion of trespas detinue accion sur trover replevin accions of accompts accions of debts, accion of trespas for assault menace battery wounding or imprisonment, accions uppon the case for words, bee or shalbe at the tyme of any such cause of accion given or accrued, fallen or come within the age of twentie-one yeares, feme covert, non composs mentis, imprisoned or beyond the seas, that then such person or persons shalbe at libertie to bring the same accions, soe as they take the same within such times as are before lymitted, after their coming to or being of full age, discovert, of sane memory, at large and retorned from beyond the seas, as other persons having no such impediment should have done.

An Act for the Amendment of the Law and the better Advancement of Justice.

(4 & 5 Anne, c. 3)(a) .

S. 19. And be it further enacted, by the authority aforesaid, that if any person or persons against whom there is or shall be any such cause of suit or action for seamen’s wages, or against whom there shall be any cause of action of trespass, detinue, action sur trover or replevin for taking away goods or cattle, or of action of account, or upon the case, or of debt grounded upon any lending or contract, without speciality of debt for arrearages of rent, or assault, menace, battery, wounding and imprisonment, or any of them, be or shall be at the time of any such cause of suit or action, given or accrued, fallen or come beyond the seas, that then such person or persons, who is or shall be entitled to any such suit or action, shall be at liberty to bring the said actions against such person or persons after their return from beyond the seas (so as they take the same after their return from beyond the seas), within such times as are respectively limited for the bringing of the said actions before by this Act, and by the said other Act made in the one and twentieth year of the reign of King James the First.

An Act to amend the Laws of England and Ireland affecting Trade and Commerce.

(Mercantile Law Amendment Act, 1856, 19 & 20 Vict. c. 97, s. 12.)

No part of the United Kingdom of Great Britain and Ireland, nor the Islands of Man, Guernsey, Jersey, Alderney, and Sark, nor any islands adjacent to any of them, being part of the dominions of Her Majesty, shall be deemed to be beyond seas within the meaning of the Act of the fourth and fifth years of the reign of Queen Anne, chapter sixteen(b) , or of this Act.

[(a) ]This must be a defect showing some negligence of the employer; Walsh v. Whiteley (1888) 21 Q. B. Div. 371, 57 L. J. Q. B. 586. “Defect” “means the absence of fitness to secure safety in the operation for which the machinery is used”: per Kennedy, J., Stanton v. Scrutton (1893), 5 R. at p. 246, 62 L. J. Q. B. at p. 408.

[(b) ]An object left sticking out over a way is not a defect in the condition of the way; McGiffin v. Palmer’s Shipbuilding Co. (1882) 10 Q. B. D. 5, 52 L. J. Q. B. 25. “Defect in condition” includes unfitness for safe use, whether from original fault of structure or want of repair; Heske v. Samuelson (1883) 12 Q. B. D. 30, 53 L. J. Q. B. 45; or insufficiency of any part of the plant for the particular purpose it is being used for; Cripps v. Judge (1884) 13 Q. B. Div. 583, 53 L. J. Q. B. 517; but not mere negligent user: Willetts v. Watt, ’92, 2 Q. B. 92, 61 L. J. Q. B. 540, C. A. Any space which workmen have to pass over may be a “way”: ib. As to sufficiency of evidence on this point, Paley v. Garnett (1885) 16 Q. B. D. 52. A dangerous or improper collocation of things not defective in themselves may be a defect; Weblin v. Ballard (1886) 17 Q. B. D. 122, 55 L. J. Q. B. 395; but see Thomas v. Quartermaine, 18 Q. B. Div. 685; and qu. whether Weblin v. Ballard be right, per Bowen L. J. at p. 699.

[(c) ]Leaving a wall which is under repair insecure for want of proper shoring up may be a defect in the condition of works within this subsection; Brannigan v. Robinson, ’92, 1 Q. B. 344, 61 L. J. Q. B. 202.

[(d) ]“Plant” may include horses, and vice in a horse is a “defect”; Yarmouth v. France (1887) 19 Q. B. Div. 647, 57 L. J. Q. B. 7.

[(e) ]The words of this section do not apply to ways, works, &c. which are in course of construction, and not yet sufficiently complete to be used in the business; Howe v. Finch (1886) 17 Q. B. D. 187. They do apply to “an arrangement of machinery and tackle which, although reasonably safe for those engaged in working it, is nevertheless dangerous to workmen employed in another department of the business”; Smith v. Baker, ’91, A. C. 325, 354, 60 L. J. Q. B. 683, per Lord Watson.

[(f) ]See interpretation clause, sect. 8.

[(g) ]Osborne v. Jackson (1883) 11 Q. B. D. 619.

[(h) ]Snowden v. Baynes (1890) 25 Q. B. Div. 193, 59 L. J. Q. B. 325.

[(i) ]Orders or directions within the meaning of this sub-section need not be express or specific; Millward v. Midland R. Co. (1884) 14 Q. B. D. 68, 54 L. J. Q. B. 202. The order need not have been negligent in itself, nor the sole or immediate cause of the injury: Wild v. Waygood, ’92, 1 Q. B. 783, 61 L. J. Q. B. 391, C. A.

[(k) ]The duty of oiling and cleaning points is not “charge or control”; Gibbs v. G. W. R. Co. (1883-4) 11 Q. B. D. 22, 12 Q. B. Div. 208, 53 L. J. Q. B. 543. Any one having authority to set a line of carriages or trucks in motion, by whatever means, is in charge or control of a train; Cox v. G. W. R. Co. (1882) 9 Q. B. D. 106.

[(l) ]“Railway” has its natural sense, and is not confined to railways made or used by railway companies; Doughty v. Firbank (1883) 10 Q. B. D. 358, 52 L. J. Q. B. 480.

[(m) ]A workman can bind himself by contract with his employer not to claim compensation under the Act, and such contract is a bar to any claim under Lord Campbell’s Act; Griffiths v. Dudley (1882) 9 Q. B. D. 357, 51 L. J. Q. B. 543. If made for a distinct and substantial consideration, it may be for an infant worker’s benefit so as to be binding on him: Clements v. L. & N. W. R. Co. ’94, 2 Q. B. 482, 63 L. J. Q. B. 837, C. A.

[(n) ]This evidently means only that the defence of “common employment” shall not be available for the master; not that the facts and circumstances of the workman’s employment are not to be considered, e.g. if there is a question of contributory negligence. Nor does it exclude the defence that the workman in fact knew and accepted the specific risk; Thomas v. Quartermaine (1887) 18 Q. B. Div. 685, 56 L. J. Q. B. 340; but such defence is not admissible where the risk was created by breach of a statutory duty; Baddeley v. Earl Granville (1887) 19 Q. B. D. 423, 56 L. J. Q. B. 501; and a workman’s continuing to work with defective plant after he has complained of the defect to the employer or foreman, who has refused or neglected to amend it, is not conclusive to show voluntary acceptance of the risk; Yarmouth v. France (1887) 19 Q. B. Div. 647, 57 L. J. Q. B. 7; Smith v. Baker, ’91, A. C. 325, 60 L. J. Q. B. 683, see p. 153, above.

[(o) ]See Kiddle v. Lovett (1885) 16 Q. B. D. 605, 610.

[(p) ]This sub-section creates a new and special statutory defence, see Weblin v. Ballard (1886) 17 Q. B. D. 122, 125, 55 L. J. Q. B. 395. It does not enlarge by implication the right of action under sect. 1; Thomas v. Quartermaine, note (n).

[(q) ]This notice must be in writing; Moyle v. Jenkins (1881) 8 Q. B. D. 116, 51 L. J. Q. B. 112, and must contain in writing all the particulars required by sect. 7; Keen v. Millwall Dock Co. (1882) 8 Q. B. Div. 482, 51 L. J. Q. B. 277.

[(r) ]Proceedings in the county court cannot be stayed under sect. 39 of the County Courts Act, 1856. That section applies only to actions which might have been brought in the Superior Court; Reg. v. Judge of City of London Court (1885) 14 Q. B. D. 818, 54 L. J. Q. B. 330; affirmed in C. A., W. N. 1885, p. 95. As to grounds for removal, see Munday v. Thames Ironworks Co. (1882) 10 Q. B. D. 59, 52 L. J. Q. B. 119.

[(s) ]It need not state the cause of action with legal accuracy; Clarkson v. Musgrave (1882) 9 Q. B. D. 386, 51 L. J. Q. B. 525; cp. Stone v. Hyde, 9 Q. B. D. 76, 51 L. J. Q. B. 452.

[(t) ]Stone v. Hyde (1882) 9 Q. B. D. 76, 51 L. J. Q. B. 452; Carter v. Drysdale, 12 Q. B. D. 91.

[(u) ]Shaffers v. General Steam Navigation Co. (1883) 10 Q. B. D. 356, 52 L. J. Q. B. 260; cp. and dist. Osborne v. Jackson (1883) 11 Q. B. D. 619; Kellard v. Rooke (1888) 21 Q. B. Div. 367, 57 L. J. Q. B. 599. The difference between a foreman who sometimes lends a hand and a workman who sometimes gives directions is in itself, of course, a matter of fact.

[(x) ]“Any person [not being a domestic or menial servant] who, being a labourer, servant in husbandry, journeyman, artificer, handicraftsman, miner, or otherwise engaged in manual labour, whether under the age of twenty-one years or above that age, has entered into or works under a contract with an employer, whether the contract be made before or after the passing of this Act, be express or implied, oral or in writing, and be a contract of service or a contract personally to execute any work or labour;” 38 & 39 Vict. c. 90, s. 10. This definition does not include an omnibus conductor: Morgan v. London General Omnibus Co. (1884) 13 Q. B. Div. 832, 53 L. J. Q. B. 352. Nor the driver of a tramcar: Cook v. N. Metrop. Tramuays Co. (1887) 18 Q. B. D. 683, 56 L. J. Q. B. 309. Nor a grocer’s assistant in a shop, though he makes up and carries parcels in the course of his employment: Bound v. Lawrence, ’91, 1 Q. B. 226, 61 L. J. M. C. 21, C. A. (on the Employers and Workmen Act). Nor a potman in a publichouse, whose duties are substantially of a menial or domestic nature: Pearce v. Lansdowne (1892) 62 L. J. Q. B. 441. It does include a driver of carts, &c., who also has to load and unload the goods carried: Yarmouth v. France (1887) 19 Q. B. Div. 647, 57 L. J. Q. B. 7.

The Act of 1875 did not apply to seamen or apprentices to the sea service, sect. 13. By 43 & 44 Vict. c. 16, s. 11, it was extended to them, but not so as to affect the definition of “workman” in other Acts by reference to the persons to whom the Act of 1875 applies. Seamen, therefore, are not within the Employers’ Liability Act.

[(a) ]So in the Statutes of the Realm and Revised Statutes; c. 16 in other editions.

[(b) ]This is chap. 3 in the Statutes of the Realm.