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The Novelists and Baron Bramwell

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CORE Metadata, citation and similar papers at core.ac.uk Provided by Newcastle University eTheses COMPASSION WITHOUT COMPENSATION: THE NOVELISTS AND BARON BRAMWELL Thesis submitted for the degree of Doctor of Philosophy David Garforth Raw School of Law Newcastle University October 2013 COMPASSION WITHOUT COMPENSATION: THE NOVELISTS AND BARON BRAMWELL Abstract My purpose in this thesis is to explore the work of Nineteenth Century Condition of England novelists and to identify how and to what extent they addressed issues of industrial safety and used their skills to identify problems. I looked at the developing law of negligence over the period 1830-1880 with particular reference to compensation for injured workpeople and to the role played by the common law judiciary. My researches revealed that one judge, Baron Bramwell, carried great influence but used the common law as a tool to prevent injured employees from recovering damages. I identified Charles Dickens, who was acquainted with Bramwell, as the novelist who had the skills and outlets to make the greatest impression in the fight for reform. I consider whether there was any common ground between Dickens and Bramwell and thus seek to use Literature as a comfortable adjunct to Legal History in telling the story of the law’s development over the period in the field of industrial safety and of the search for an humane compensation system. i Summary of Contents Abstract i Summary of Contents ii Acknowledgements iv Preface v Table of Statutes vi Table of Cases viii Note xiv Chapter 1. Introduction: The Novelists and the Law A multi-Disciplinary Study 1 Points and Method of Enquiry 4 The Industrial Revolution and Laissez Faire 6 The Novelists’ Views of: the Law and Lawyers 10 the Poor 13 the Subverted Law 15 Insurance 17 Nineteenth Century Development of Tort 19 Industrial Safety and an Humane Compensation System 20 Baron Bramwell and Damages for Personal Injury 21 Framework 26 Chapter 2. Railways The New Means of Travel 28 Dickens at Staplehurst 41 Common Law 47 Progress despite Protestation 59 Chapter 3. Responsibilities of Employers (1) Railway Navvies 66 Railway Workers 69 Miners 71 … The Narrative 75 Factory Workers: 79 Byssinosis 81 … The Narrative 84 Crippling by Unnatural Pressure 88 … The Narrative 89 ii Chapter 4. Responsibilities of Employers (2): Fencing of Factory Machinery Factual Evidence & Dickens’ Journalism 94 The Narrative 108 Chapter 5. The Common Law Liability of Employers Vicarious Liability 128 Contributory Negligence 131 Defence of volenti non fit injuria 132 Defence of Common Employment 138 Association 147 Breach of Statutory Duty 147 The Slow Demise of ‘Common Employment’ 149 Chapter 6. Commercial and Individual Plaintiffs Occupiers and the Common Law: 156 Res Ipsa Loquitur 157 Property Damage 158 Railway Premises 162 Careless Action … The Narrative 164 Unsafe Premises … The Narrative 166 … The Common Law 169 Unsafe Openings … The Narrative 172 … The Common Law 178 … Legislation 179 Chapter 7. The Skirmisher Novelist and the Unbendable Judge The Invitation to Dinner 181 The Dinner 183 Law and Literature 201 Bibliography 205 iii Acknowledgements I wish to thank all those who have helped and supported me in my research project. I am particularly grateful to my mentor Dr Ann Sinclair, to our Law Librarian Catherine Dale and her assistants who have enquired on my behalf many times when I was stuck, but should not have been, to my tutor Professor Richard Mullender for recent helpful suggestions and to my principal tutor Professor Ian Ward for his skill, patience and kindness over six convivial years. My dear wife Margaret Raw acknowledges the joys of travel afforded by my research. We visited Westminster, Four Elms by Edenbridge, Hever, Knutsford, Silverdale on Morecambe Bay, Gad’s Hill, Rochester, and Staplehurst. I much enjoyed my labours in the Bodleian, the University Libraries of Cambridge, Durham and London, the British Library, Middle Temple and the York Railway Museum. iv Preface I have sought to bring together nineteenth century legal and industrial history and the literature of those times so as to compare the approach of the novelists with a judicial reluctance to award damages to those wronged by unsafe practices. I have surveyed the novels seeking evidence of concern for the working poor and an interest in safe industrial conditions. I have looked at Dickens’ journalistic contribution, the new work spawned by the bicentenary of his birth in 2012, and the hitherto largely unexplored malign influence Baron Bramwell exerted on his colleagues and the law of compensation. The Victorian period has several similarities to our modern age which include greedy bankers and industrialists, failing banks,1 a lack of enthusiasm for the work of the Health and Safety Executive,2 a disdain for constricting safety legislation3 and a widening gap between rich and poor.4 The Victorians could plead that they were facing unprecedented industrial change; our modern society should have learned to do better. One difference is that Victorian judges, keen not to open the floodgates, did not readily accept that employers and commercial enterprises had obligations to provide safe practices and environments and declined to make them accountable and liable in respect of preventable accidents; now we have an overblown compensation system. 1 Overend & Gurney collapsed in 1866 owing £11m. with catastrophic effects on railways and commerce. 2 Hari, J. (27/04/2011) Independent. Budget cut by 35%. 3 Gibb, F. (01/11/2012) Times. Proposal to disentitle claimants from automatic compensation for ‘theoretical’ breaches of statutory duty. 4 Stewart, S. (10/02/2013) Observer. 1% of the population pocket 10% of the national income while the poorest 50% earn 18%. v Table of Statutes 1802 Preservation of Health of Apprentices Act: 42 Geo.III c.73. 1825 Factories Act: 6 Geo IV c.63. 1829 Catholic Emancipation Act: 10 Geo IV c.6. 1831 Truck Act: 1&2 Will.IV c.37. 1831 Factories Act: 1&2 Will. IV c.39. 1832 Representation of the People Act: 2&3 Will.IV, c.45. 1833 Factories Act: 3&4 Will. IV c.103. 1838 Conveyance of Mail by Railways Act: 1&2 Vict. c.98. 1840 Railway Regulation Act: 3&4 Vict. c.97. 1842 Mines Act: 5&6 Vict. c.99. 1844 Factories Act: 7&8 Vict. c.15. 1844 Railway Regulation Act: 7&8 Vict c.85. 1845 Railway Clauses Consolidation Act: 8 Vict. c.20. 1846 Fatal Accidents Acts: 9&10 Vict.c.62 & 9&10 Vict. c.93. 1847 Factories Act: 10&11 Vict.c.29. 1849 Carriage of Passengers in Merchant Vessels Act: 12&13 Vict. c.33. 1850 Coal Mines Inspection Act: 13&14 Vict. c.100. 1851 Evidence Act: 14&15 Vict. c.99. 1852 Common Law Procedure Act: 15&16 Vict. c.76. 1853 Evidence Act: 1853 16&17 Vict. c.83. 1854 Common Law Procedure Act: 17&18 Vict. c.125. 1854 Railway & Canal Traffic Act: 17&18 Vict. c.31. 1855 Coal Mines Inspection Act: 18&19 Vict. c.108. 1855 Companies Act: 18&19 Vict. c.133. 1856 Factories Act: 19&20 Vict.c.38. 1856 Companies Act: 19&20 Vict. c.47. 1858 Companies Act: 21&22 Vict. c.91. 1860 Regulation & Inspection of Mines Act: 23&24 Vict. c.151. 1861 Locomotive Act: 24&25 Vict. c.70. 1862 Companies Act: 25&26 Vict. c.53. 1862 Coal Mines Amendment Act: 25&26 Vict. c.79. 1864 Factory & Workshop Act: 27&28 Vict. c.48. 1864 Fatal Accidents Act: 27&28 Vict.c.95. 1865 Locomotive Act: 28&29 Vict. c.83. 1867 Factory & Workshop Act: 30&31 Vict. c.103. 1868 Railway Regulation Act: 31&32 Vict.c.119. 1872 Coal Mines Regulation Act: 35&36 Vict. c.76. 1872 Metalliferous Mines Act: 35&36 Vict. c.77. 1875 Employers & Workmen Act: 41 Vict. c.90. 1878 Factory & Workshop Act: 41 Vict. c.16. 1880 Employers’ Liability Act: 43&44 Vict. c.42. 1889 Regulation of Railways Act: 52 Vict. c.57. 1897 Workmen’s Compensation Act: 60&61 Vict. c.37. 1906 Workmen’s Compensation Act: 6 Edw VII c.58 1923 Workmen’s Compensation Act: 13&14 GeoV c.42 1937 Factories Act: 1 Edw.8 & 1 Geo.6. c.67. 1945 Law Reform (Contributory Negligence) Act: 8&9 Geo VI c.28. 1948 Law Reform (Personal Injuries) Act: 11&12 Geo VI c.41. vi 1954 Mines & Quarries Act: 2&3 Eliz.2 c.70. 1957 Occupiers’ Liability Act: 5&6 Eliz.2 c.31. 1969 Employers’ Liability Compulsory Insurance Act: c.57. 1981 Supreme Court Act 1981: c.54. 1984 Occupiers’ Liability Act 1984: c.3. 1984 County Courts Act 1984: c.28. 2012 Legal Aid, Sentencing and Punishment of Offenders Act 2012: c.10. vii Table of Cases Abraham v Reynolds (1860) 5 H&N 143; 157 ER 1133. Abrath v North Eastern Railway (1886) 11 App.Cas. 247. Allen v Hayward (1845) 7 QB 960; 115 ER 749. Allen v New Gas (1876) 1 Ex. D.251. Alton v Midland Railway (1865) 19 CB NS 213; 144 ER 768. Ansell v Waterhouse (1817) 6 M&S 385; 105 ER 1286. Archer v James (1859) 2 B&S 67; 121 ER 998. Armstrong v Lancashire and Yorkshire Railway (1875) LR 10 Ex.47. Armsworth v South Eastern Railway (1848) 11 Jurist 758. In re Arnold (1880) 14 LR Ch. 284. Ashworth v Stanwix & Walker (1860) 3 EL&EL 701; 121 ER 606. Assop v Yates (1858) 2 H&N 766; 157 ER 317. Aston v Heaven (1797) 2 Esp. 533; 170 ER 445. Atkinson v Denby (1861) 6 H&N 778: 158 ER 321 & (1862) 7 H&N 934; 158 ER 749.
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