SAME STRUGGLE, DIFFERENT DIFFERENCE · 2011. 5. 21. · of the same dilemmas faced by English...
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PLEASE NOTE This is a version of a paper accepted for publication in the Illinois Law Review VICTORIAN TORT LIABILITY FOR WORKPLACE INJURIES Michael Ashley Stein * The first decision of an injured worker suing his master for a workplace accident was reported in 1837, the year of Queen Victoria’s ascension. The second Workman’s Compensation Act, a comprehensive social insurance scheme, was passed in 1900, a few months before her death. The Article provides an initial account of the development of employers’ liability to their servants for work-related injuries during the Victorian era. It demonstrates that English judges, and especially the Barons of the Exchequer, interpreted the law to resist employers’ liability. The means these judges used included creating the defense of common employment, widely applying the doctrines of assumption of the risk and contributory negligence, quashing nearly every innovative attempt to create law favorable to laborers, and avoiding House of Lords precedent that supported a limited form of liability. The Article argues that the dominant influence of political economy as an intellectual schema provides the most complete account of why Victorian judges acted in this manner. It also demonstrates that the three leading rationales for the parallel development of American tort law (judicial restraint, the invisible hand hypothesis, and the subsidy theory) fall short as explanations. By setting forth the first comprehensive treatment of the evolution of English employer/employee liability, the Article provides a comparative perspective into the debate over the development of American tort law, and challenges its reinterpretation. The considerable weaknesses of the traditional historical explanations for the development of tort law when applied to the English context suggest that they may not be as strong for the American context. The Article demonstrates that historical inquiries are important for understanding novel applications of traditional legal doctrines to rapidly changing technological circumstances. Many of the same dilemmas faced by English judges in the aftermath of the Industrial Revolution are being reprised for contemporary American jurists. Understanding how a previous generation of judges approached similar jurisprudential quandaries, as well as what motivated their decisions, lends insight to modern-day struggles with these dilemmas. __________________________________________________________________ * Research Professor, William & Mary School of Law; Executive Director, Harvard Law School Project on Disability. Many thanks to Charles Donohue, Mary Dudziak, Richard Epstein, George Fisher, Lawrence Friedman, T.P. Gallanis, Alex Geisinger, John Goldberg, Robert Gordon, Christopher Guzelian, Morton Horwitz, Helen Irving, David Lieberman, Kenneth Mack, William Nelson, David Seipp, Daniel Sharfstein, Jed Shugerman, and Brian Simpson for their comments. I benefited from presenting this Article at Boston University, Harvard, and New York University workshops, as well as the 18th British Legal History Conference. Rare book collections staff at the British Library and Cambridge University Library provided valuable assistance. My initial research was funded by a W.M. Tapp Studentship from Gonville & Caius College, Cambridge University; a Harvard Law School Mark DeWolfe Howe grant enabled me to complete remaining archival work. I am grateful to both institutions for their generous support.
