Employer's Liability Act, 1938

The Employers' Liability Act, 1938 removes a defence that employers used to raise in personal injury lawsuits brought by their workers — the "common employment" defence, under which an employer could avoid liability by arguing the injury was caused by a fellow worker's fault rather than the employer's own fault. Section 2 defines "workman" broadly (anyone under a contract of service or apprenticeship, manual or clerical, written or oral) and "employer" to include bodies of persons, managing agents, and legal representatives of a deceased employer, as well as whoever a worker is temporarily lent or hired out to.

Section 3 lists the specific situations where this defence is barred: injuries caused by the employer's failure to keep machinery, plant, or premises safe (or a similar failure by staff entrusted with that duty); negligence by a supervisor while exercising supervision; negligence by someone whose orders the injured worker was bound to follow and did follow; or an act done in obedience to the employer's rules or specific instructions. In these cases, a damages suit by the injured worker (or their dependents, if they died) cannot fail merely because the negligent person was also a fellow employee.

Section 4 adds that a worker is not treated as having voluntarily accepted a workplace risk unless the employer proves the risk was fully explained to, understood by, and voluntarily accepted by the worker. Section 5 preserves the validity of any court decree or order already made before the Act came into force.

This is a foundational worker-protection law, still relevant to workplace injury litigation, though it should be read alongside later labour and workmen's compensation legislation for a complete picture of an injured worker's remedies.