Atiyah's Accidents, Compensation and the Law

Foundations of the social security system

Workers’ compensation

Although the origins of the modern social security system have been traced to the poor law of the Elizabethan age, it is sufficient for our purposes (since we are concerned primarily with disability) to look no further back than 1897 when the first Workmen's Compensation Act was passed. In the nineteenth century the tort system rarely provided any compensation to the victim of an industrial injury because of three defences the courts had evolved for the protection of employers: common employment (denying liability for the negligence of a fellow worker); contributory negligence (denying liability where the worker was partly responsible for their own injuries); and volenti non fit injuria (assumption of risk) which (as then interpreted) denied liability for injuries occurring from a known and obvious risk. However, in 1880, Parliament passed the Employers’ Liability Act, which restricted the scope of the doctrine of common employment; and, in 1891, the House of Lords limited the availability of the defence of volenti. Furthermore, between 1878 and 1901, a stream of new factory legislation emerged dealing with the health and safety of workers, and the common law responded with the creation of the action for breach of statutory duty.