NATIONAL LAW INSTITUTE UNIVERSITY

SOCIOLOGY OF LAW
Topic: Social Change and the Law of Industrial Accidents

Submitted to: Submitted by:

Prof. (Dr.) Tapan Mohanty Parikshit Pandey
(2014BALLB28)
 ACKNOWLEDGEMENTS
I extend my gratitude to our Sociology Professor Dr. Tapan R. Mohanty, for giving me an
opportunity to make project on this topic and for being a guiding force throughout the
submission and being instrumental in successful completion of this project.

This project is the collective effort of my friends, colleagues, who helped me throughout the
completion of project.

I have made my sincere effort to make this project flawless, yet some mistakes might have
crept in, I apologize for the mistakes that may have taken place inadvertently.

Parikshit Pandey

2014BALLB28
Table of Contents
ACKNOWLEDGEMENTS ............................................................................... 2

INTRODUCTION: ............................................................................................ 4

DEVELOPMENT OF THE LAW OF INDUSTRIAL ACCIDENTS: ............... 4

BACKGROUND OF FELLOW-SERVANT RULE: ...................................... 4

BIRTH AND ACCEPTANCE OF THE RULE: ............................................. 5

WEAKENING THE RULE: ........................................................................... 6

RISING PRESSURES FOR CHANGE: ......................................................... 7

EMERGENCE OF WORKMEN’S COMPENSATION STATUES: .............. 7

THREE ASPECTS OF SOCIAL CHANGE: ..................................................... 7

CONCEPT OF CULTURAL LAG: ................................................................ 7

CROSS CULTURAL BORROWING: ........................................................... 8

GREAT MEN AND SOCIAL CHANGE: ...................................................... 8

INTRODUCTION:
There is always an inter-relation involved between social change and the responsiveness of
the law. The evolution of American industrial accident law from tort principles to
compensation systems explained in the article of Lawrence M. Friedman and Jack Ladinsky
titled as “Social Change and the Law of Industrial Accidents” is a perfect example of this
inter-relation.

Social change has been defined as “non-repetitive alteration in the established modes of
behaviour in society”. Industrial revolution in America brought technological advancement
and better standard of living but it also had its side effects. Many factories and heavy
machineries exposed the working class to industrial accidents. As the industries expanded,
workforce expanded and this increased the count of accidents in industries. This essay
therefore deals with how the legal system responded to this situation.

DEVELOPMENT OF THE LAW OF INDUSTRIAL ACCIDENTS:

BACKGROUND OF FELLOW-SERVANT RULE:

At the dawn of industrial revolution had a remedy that if anyone is injured out of the
negligence of others, the injured can claim remedy from the negligent one. During the days of
expansion of industrial revolution, mechanised production of goods made the accidents
inevitable. The remedy that the worker had was the doctrine of respondeat superior wherein
a worker who has met with an accident during the course of employment can sue his
employer for his negligence and for the negligence of his fellow worker. The doctrine made
the principal liable for the negligent act of his agent. The author quotes Blackstone: “he who
does a thing by the agency of another, does it himself……if an innkeeper’s servant rob his
guest, the master is bound to restitution…so likewise if the drawer at a tavern sells a man
bad wine, whereby his health is injured, he may bring an action against the master.1 With the
development of definitive doctrine, broad principle of respondeat superior was rejected and
took instead the form of fellow-servant rule. Under this rule a worker cannot sue his
employer for the negligence of his co-worker; he can only sue his employer for his own
negligence only. This principle rendered the workers absolutely remediless because the
companies were soulless creatures and if there was single entrepreneur he would not concern

1
W. Blackstone, Commentaries (429-430)
himself physically with the works of the factories. In work accidents then legal fault would be
ascribed to the fellow employee who would be without wealth and insurance.

BIRTH AND ACCEPTANCE OF THE RULE:

The origin of fellow-servant rule can be traced from the opinion of Lord Abinger in Priestly
v. Fowler2 decided in the year 1837, the case on its facts was not related to industrial
accidents but it paved the way for fellow-servant rule. The facts of the case are as follows:
The defendant, a butcher, instructed the plaintiff, his servant, to deliver goods which had been
loaded on a van by another employee. The van which had been overloaded broke down and
plaintiff fractured his thigh in the accident. The plaintiff wanted the master to be held liable
for the negligence of the fellow worker. Lord Abinger opined: “ if the master be liable to the
servant in this action, the principle of that liability will….carry us to an alarming extent….the
footman …may have an action against his master for the defect in his carriage owing to the
negligence of the coach maker….the master….would be liable to the servant for the
negligence of the chambermaid for putting him into damp bed;….for the negligence of the
cook in not properly cleaning the copper vessels used in the kitchen….”3

In the United States the leading case on the fellow-servant rule was Farwell v. Boston &
Worcester Railroad Corp.4 decided by Massachusetts’ highest court in 1842. Facts of the
case are as follows: Farwell was an engineer who lost a hand when his train ran off the track
due to a switch man’s negligence. Chief Justice Shaw spoke in the language of contract and
applied the stern logic of 19th century economic thought. By his view the worker assumes the
risk of injury for a price. And employer by paying him high price for the dangerous activity
pays the compensation therefore no additional compensation is required. The market in otself
has provided the mechanism of compensation.

The author seeks to justify the opinion of Chief Justice Shaw by stating two points:

1. Establishment of railroad was essential for the economic development. Shaw’s

opinion is cruel if the society does not make any other provision for the victim of the
accidents lie state medical insurance and disability pension otherwise Farwell solution
was neither inhumane nor inappropriate.

2
150 Eng. R. 1030
3
Ibid
4
45 Mass. (4 Met.) 49 (1842)
 2. Our perception judging the situation of the 19th century is clouded by our 21st century
perceptions. In 19th century the nature of business and entrepreneurship was not like
that of today. The instability of the monetary system threatened an entrepreneur with
sudden, unpredictable and uninsured ruin. Therefore it was necessary in those days
not to increase the hardships of the leaders of the industrial revolution.

WEAKENING THE RULE:

The principles enunciated by the judiciary are effective if it comports with the social
consensus. But if it does not it develops exceptions and hence weakens the principle. During
the late 19th century it was felt that the fellow servant rule is inadequate to redress the
grievances of the workmen and is imposing much hardship on them. Factors which led to
challenge the rule is explained by the author:

1. At the dawn of industrial revolution nobody could have foreseen the human
consequences of the industrial revolution. After 1900, it is estimated, 35000 deaths
and 2000000 injuries occurred every year in United States.
2. Contingent fee system, adopted by the attorneys made the workmen to litigate their
case and encouraged the other plaintiffs as well.
3. Free jury in the lower courts were sympathetic to the plights of the workmen and this
led the case in the favour of the workmen. For example in 1907 in Wisconsin nearly
two-third cases had been decided in favour of the workmen, in Supreme Court two-
fifth were decided in the favour of the workers.
4. Some High Courts adopted the principle of vice-principle, which allowed an
employee to sue his employer where negligent employee occupied a supervisory
position such that he could more properly be said to be the alter-ego of the principal,
this substantially weakened the fellow servant rule.
5. Later it was opined that there are certain duties of the employer which cannot be
delegated like providing safe working environment, safe tools and safe appliances,
and if the employer fails to do so, he shall compensate the employee for the damage.
6. Rail road accident law reached level of maturity earlier that the industrial accidents
law. In 1911, twenty five states of US had abolished fellow servant rule in the rail
road accidents. Federal Employers Liability Act of 1908 had abolished fellow servant
rule and greatly reduced the strength of contributory negligence and assumption of
risk as defence.
RISING PRESSURES FOR CHANGE:
With the rise in the numbers of accidents, litigation for compensation also increased. Workers
did get hefty compensation but their number was very few. Compensation awarded by the
court was unpredictable; sometimes it would be very high and in some cases very low, not
even sustainable. The businessman had to sometimes pay unpredicted hefty amount as
compensation and therefore they had to spare a large sum of profit for litigation and the
compensation. The workman would get only 56% of the compensation awarded to him
because the contingent fee system and cost of litigation would cost much money to worker.
Therefore neither the employers nor the employees were happy with the present state of
affairs.

EMERGENCE OF WORKMEN’S COMPENSATION STATUES:

By 1900, industrial accidents and the shortcoming of the fellow servant rule were widely
criticized and it was perceived as a problem that had to be solved. State legislatures set up
commissions to look into the problem and come up with a solution. These commissions
gathered all the necessary information and were able to calculate the costs of workmen’s
compensation system and compare them with costs under employer’s liability. They all
agreed on the same point that compensation must fix liability on the employer. The statutes
provided the claims to be taken from court to the administrative bodies.

THREE ASPECTS OF SOCIAL CHANGE:

CONCEPT OF CULTURAL LAG:

William Fielding Ogburn in his book has explained the concept of cultural lag by taking the
example of the workmen’s compensation statutes which took about fifty years to develop
even after the accidents were on rise. This was explained by saying that one part of the
culture changes first by the through some discovery or invention and changes occur in other
part of the culture dependent on it but there is always a time lag between the two, and this
time is of maladjustment.

The author had defended the court and had differed with this point:

1. Social process and the legal system cannot be aptly described by the idea of lag. Legal
system is a part of total culture not a self operating machine.
 2. The fellow servant rule could not be replaced until economic affluence, business
conditions made feasible a more social solution.
3. The courts had created manifold exceptions to the fellow servant rule.
4. Change depends upon the perception of the masses, that time workers were more
concerned about their working rights and hour therefore compensatory rights were not
pressed by the labour unions and associations.

CROSS CULTURAL BORROWING:

America was not the first country to adopt the workmen compensation scheme, there were
numerous European antecedents. Switzerland passed a workmen’s compensation act in 1881,
Germany followed in 1884. American system of compensation had taken the idea and learnt
through the experience of the other countries or cultures to adopt a change in their own
culture.

GREAT MEN AND SOCIAL CHANGE:

“Great man theory of history” holds that particular persons play irreplaceably decisive role in
determining the path of social change. Many people played important role in coming up with
the workmen compensation statutes in America like Roujet Marshall (judge), John R.
Commons (member of first industrial commission) etc. Great man hypothesis is not
susceptible of proof or disproof.